The new French arbitration law, contained in decree no. 2011-48 of 13 January 2011, came into force on 1 May 2011 (see Legal update, French arbitration law comes into force). The new law is hardly transformative of French arbitration policy. Rather, it seeks to codify and clarify several principles developed in French case law, while adding subtle changes to meet the changing nature of arbitration.

Among the principles developed in case law and codified in the Decree is that of the separability, or independence, of the arbitration clause, which provides that where a contract is found to be void, this does not affect the validity of an arbitration clause contained within it (Article 1447). Similarly, the Decree codifies the arbitral tribunal's duty to ensure that the parties are treated equally and to uphold the requirements of due process, regardless of the procedure chosen by the parties (Article 1510).

The new legislation also provides for a judge tasked with supporting the arbitral process (a juge d'appui). The judge's role would include dealing with issues such as disputes as to the appointment of the tribunal (Articles 1451 to 1454), as well as issues arising from the failure to act or resignation of an arbitrator (Article 1457).

The grounds for setting aside an award and refusing enforcement are unchanged, although some have been reformulated. One innovation in this regard is that a party may proceed with the enforcement of an award in France even where that award is subject to pending setting aside proceedings in another jurisdiction, unless a judge stays or sets conditions for enforcement in order to avoid severely prejudicing the rights of one of the parties (Article 1526). In addition, the limitation period for challenging an award will begin to run upon receipt of notification of the award, as opposed to service of an award "which has been declared enforceable" as was the case under previous legislation (Article 1519). Parties may also, by an express agreement, waive their right to bring an action to set aside. These revisions are intended to streamline the enforcement process.

The ICC announced that its headquarters will remain in Paris, where they have been located since its creation. The announcement was made after the French Government agreed to maintain tax exemptions for employees who were not French residents for the five years prior to their hiring.

The ICC released the 2012 revision to its Rules of Arbitration in September (see Legal update, ICC Rules of Arbitration 2012 launched). The new Rules maintain the basic structure of ICC arbitration while adding new provisions to respond to feedback from the user community and to adapt to the increasing complexity of arbitration disputes. Among the steps taken to improve efficiency, the new Rules seek to "front load" pleadings, encouraging parties to include as much information as early in the proceedings as possible. Article 4 thus requires a Request for Arbitration to include the amounts of any quantified claims and estimates of the value of any others.

New provisions related to disputes involving applications for joinder (Article 7), multiple parties (Article 8), multiple contracts (Article 9), and consolidation (Article 10) are largely intended to codify the ICC's existing practice, thus adding a level of transparency to the Court's decisions with respect to such issues.

In addition, an Annex was included detailing the procedures for the appointment of an Emergency Arbitrator to grant interim and conservatory measures before the formation of a tribunal.

The revision was also intended to make the ICC a more attractive venue for the resolution of investor-state disputes. Changes aimed at doing so include empowering the tribunal to make orders regarding the confidentiality of proceedings at the request of either party (Article 22(3)), as well as creating an exception to the use of ICC National Committees (generally viewed by states as pro-business) as appointing authorities in cases involving states or parties claiming to be state entities (Article 13(4)).

In SA J & P Avax v Société Tecnimont SPA, (Cour d'appel Reims, 2 November 2011, case no. 10/02888), the Reims Court of Appeal set aside an ICC award, finding that the chairman of the tribunal had failed to disclose conflicts of interest which called into question his independence (see Legal update, Reims Court of Appeal sets aside ICC award for chairman's lack of independence)

The case arose from an arbitration between Tecnimont SPA (Tecnimont) (an Italian company) and J&P Avax SA (Avax) (a Greek company). Avax challenged the appointment of the chairman of the tribunal on the basis of dealings between his international law firm and companies within the Tecnimont group. However, this application was rejected by the ICC in October 2007. Further correspondence on the subject was exchanged between the chairman and Avax between November 2007 and March 2008. In December 2007, the tribunal issued a partial award on liability. Shortly thereafter, the chairman resigned, acknowledging that dealings between his international law firm and companies within the Tecnimont family could give rise to doubts as to his independence.

Avax applied to the Paris Court of Appeal to have the award set aside and was successful. However, this decision was quashed by the Supreme Court. The latter found that Avax had sought to have the award set aside on the basis of facts which were disclosed after the ICC Court made its decision in October 2007. However, the Court of Appeal had relied on facts that were known to Avax before this time. The Supreme Court held that by going beyond Avax's pleadings in this way, the Court of Appeal had altered the subject matter of the dispute, in breach of Article 4(1) of the French Code of Civil Procedure. The matter was referred to the Reims Court of Appeal.

The Reims Court of Appeal set aside the arbitral award, finding that the chairman had not complied with his continuing obligation to disclose facts that could call into question his independence. In so doing, it held that the court was not bound by the ICC Court's rejection of Avax's challenge to the chairman's appointment. Tecnimont has appealed (see Anticipated developments in 2012: Tecnimont appeal below).

Tecnimont has filed an appeal against the decision of the Reims Court of Appeal with the Supreme Court. Assuming that the issues arising out of the Paris Court of Appeal decision do not arise in the present appeal, the Supreme Court will have the opportunity to evaluate the Reims Court of Appeal's analysis on the content of an arbitrator's obligation to disclose conflicts of interest.

2011 was a year of significant change in the Paris arbitration community. No changes on such a scale are expected in the coming year. Rather, 2012 will see a consolidation of many of the changes that occurred in 2011. In particular, the first arbitrations to be governed by the new ICC Rules have already been filed.

In addition, the French Supreme Court and Courts of Appeal have begun interpreting the 13 September 2011 decree establishing France's new arbitration law. Thus, for example, courts will have to define what will be required to demonstrate "severe prejudice" such that enforcement of an award could be stayed or subject to conditions. Similarly, decisions will likely clarify how explicit an agreement not to have recourse to setting aside proceedings will need to be.

Decisions under each will, doubtless, raise new and interesting issues.