Three-stage rocket: the first stage fired, the two upper stages still to come

Decree no. 2026-741 of 6 August 2026 laying down various measures to clarify and modernise arbitral procedure, JORF no. 0183 of 7 August 2026, text no. 11

Fifteen years after the decree of 13 January 2011, Book IV of the French Code of Civil Procedure has been revised. Decree no. 2026-741 of 6 August 2026, published in today’s Journal officiel, will enter into force on 1 January next. Its title states its ambition: “various measures to clarify and modernise arbitral procedure”. It is not the long-awaited overhaul of French arbitration law but, more modestly, the first of the three stages announced by the Minister of Justice on 8 April 2025, during Paris Arbitration Week1.

By way of reminder, a working group co-chaired by François Ancel and Thomas Clay delivered in March 2025 a report setting out forty proposals, together with a draft Arbitration Code of one hundred and forty-six articles2. The Chancellery drew from it a three-stage method: a decree gathering the points of consensus, a round of consultations on the debated questions, then a code. A commented draft decree was submitted to public consultation from December 2025 to 20 January 20263. The text now published is the outcome of that first stage.

With no claim to exhaustiveness, let us briefly outline what the decree retains (1) and what it leaves aside (2) of the proposals made to it, before turning to its entry into force.

What the decree retains

Competence-competence. Article 1448 of the Code of Civil Procedure, the seat of the negative effect of the competence-competence principle, requires a State court seised of a dispute covered by an arbitration agreement to decline jurisdiction, unless the arbitral tribunal has not yet been seised and the agreement is manifestly void or manifestly inapplicable. The decree rewrites that text on two points. First, it fixes the moment at which the first condition is assessed: the arbitral tribunal has “not yet been seised” if it has not been seised as at the date on which the State court is itself seised. A later referral to the arbitral tribunal, in the course of the proceedings, therefore has no bearing on the State judge’s power to find the agreement manifestly void or inapplicable. Second, a stipulation to the contrary is no longer deemed unwritten: the parties may now depart from the rule, provided that the stipulation is “express and unequivocal”. The negative effect of competence-competence becomes a default rule.

The arbitration centre. The decree brings the “arbitration centre” into the Code, at Articles 1450, 1452 to 1454, 1456 and 1457, where the 2011 text knew only of “a legal person” or “the person entrusted with organising the arbitration”. That recognition is above all formal: the powers attached to the organisation of the arbitration, namely the appointment of arbitrators, challenge and extension of time limits, remain unchanged4.

It may also prove functional, as the new Article 1462-1 shows: it allows the arbitral tribunal, not the centre, to hear in a single arbitration claims relating to several contracts. The power does not belong to the centre, but it is under the arbitration rules of that centre that the power is exercised. Failing rules permitting it, consolidation remains possible unless a party objects and provided that the arbitration agreements are compatible.

The strengthened powers of the supporting judge. This is one of the most concrete contributions. Article 1468 allows any party to apply to the juge d’appui to render enforceable, on a provisional basis, an interim or conservatory measure ordered by the arbitral tribunal. The judge rules under the accelerated procedure on the merits and grants the application, save where enforcement would seriously prejudice the rights of one of the parties or would be contrary to public policy, read as international public policy in international matters (new Article 1506)5.

Article 1469 further transfers to the supporting judge jurisdiction over the production of documents held by a third party, hitherto vested in the President of the Judicial Court, and Article 1505, 5°, opens that avenue in international matters.

The astreinte. The case law of the Paris Court of Appeal had recognised the power of arbitral tribunals to order an astreinte, a periodic penalty payment designed to compel performance6. Article 1468-1 goes further: the liquidation of the astreinte, which until now went through the enforcement judge, may be carried out by the arbitral tribunal itself, by an award, for as long as it remains seised.

The award. A new Article 1478 adopts the judge-made definition of the award7: the act which “finally determines, in whole or in part, the dispute, whether on jurisdiction, on a procedural plea capable of bringing the proceedings to an end, or on the merits”. Articles 1480-1 and 1480-2 recognise the award drawn up in digital form and require, in that case, a qualified electronic signature.

Recognition and exequatur. The decree draws a sharper distinction between the two operations. Recognition gives the award effect in France, in particular the authority of res judicata, without permitting enforcement; exequatur makes it enforceable. Until now, only the latter was the subject of an organised procedure. Henceforth, a party may seek recognition for its own sake: as a principal application, by order of the Judicial Court, or incidentally, in the course of other proceedings (Article 1487-1 in domestic matters, Article 1516-1 in international matters).

Three rules complete the scheme. First, a refusal of exequatur or of recognition must be reasoned (Articles 1488 and 1517). Second, where the Court of Appeal is seised of a recourse, the First President or, once seised, the pre-trial judge may grant exequatur or recognise the award while the proceedings are pending (Articles 1498 and 1521), and dismissal of the recourse on the merits carries exequatur as of right or, where enforcement cannot be pursued, recognition (Articles 1498 and 1527). Lastly, as to proof, production of “the original” of the award gives way throughout to production of “a copy” satisfying the conditions required for its authenticity, a formula hospitable to the electronic award.

Recourse in domestic matters. Two modifications will attract attention. The first concerns annulment: where the Court of Appeal sets the award aside on a ground relating to the jurisdiction or lack of jurisdiction of the arbitral tribunal, it may no longer rule on the merits of the dispute. Evocation, peculiar to domestic arbitration, is thus confined to the other grounds of annulment, where it remains a default rule (Article 1493). The second aligns domestic arbitration with international arbitration: appeal and the action to set aside lose their suspensive effect (Article 1496), the First President or the pre-trial judge being able, however, to stay enforcement where it is liable seriously to prejudice the rights of one of the parties (Article 1497); Article 1484, paragraph 2, on provisional enforcement, disappears as a consequence.

Recourse in international matters. New Articles 1527-1 to 1527-5 endow the proceedings before the Court of Appeal with a procedural regime of their own: exhibits in a foreign language may be filed without translation, subject to a translation being ordered; the parties, witnesses, experts and counsel may express themselves in another language, with the assistance of an interpreter where needed; witness statements may be typed; and the Court may, finally, adapt the reasons for its decision, and the publicity given to it, to the requirements of the confidentiality of the arbitration.

From adjustment to suspension. A third point, less conspicuous, deserves mention. Articles 1497 and 1526 allowed the First President or the pre-trial judge to “stay or adjust” (arrêter ou aménager) enforcement of the award where enforcement was liable seriously to prejudice the rights of one of the parties. In their new wording, both texts leave him only the power to “suspend” enforcement, by an order now expressly not open to appeal. The power to adjust, which allowed enforcement to be made conditional, for instance on the sums at stake being placed in escrow, thus disappears in domestic matters (Article 1497) as in international ones (Article 1526). Neither the March 2025 report nor the draft submitted to consultation proposed that removal: both retained the formula “stay or adjust”8. Practice will tell whether the courts can rebuild, case by case, the flexibility the text no longer affords them.

The definition of international arbitration. Article 1504 substitutes “international economic interests” for “the interests of international trade”. The formula appears to broaden the criterion; how the courts will handle it remains to be seen.

What the decree leaves aside

As to form, first, the decree does not enact an Arbitration Code. Book IV of the Code of Civil Procedure remains, and with it the duality of the titles devoted to domestic and to international arbitration, where the report proposed the absorption of the former by the latter. The Arbitration Code is still announced, but for a third stage.

As to principles, next, it will be noted that the decree does not enshrine the “guiding principles” proposed by the report: independence and impartiality of the arbitrator, equality of the parties, effectiveness of the arbitration agreement, prevention of denial of justice. The reason is doubtless purely technical: it is not for a decree to lay down such principles, some of which, moreover, fall within the domain of statute.

As to substance, lastly, the decree as published does not retain certain of the report’s proposals, notably those relating to the removal of the written form requirement on pain of nullity for the domestic arbitration agreement (Article 1443), to the recasting of the subject matter of the dispute in the compromis (Articles 1442 and 1445), to the clarification concerning the arbitrator’s civic and civil rights (Article 1450), to the extension of the presumed waiver to grievances and pleas (Article 1466), and to the mention of an offer to arbitrate contained in a treaty (Article 1507).

Entry into force

The decree enters into force on 1 January 2027, under transitional provisions turning on three criteria (Article 22): the date on which the arbitration agreement was concluded, for Articles 1448, 1504 and 1506, 1°; the date on which the arbitral tribunal was constituted, for the rules on constitution, consolidation and the astreinte; and the date of the award, for all the provisions relating to the award, to its recognition, to its exequatur and to recourse. The text applies in Wallis and Futuna (Article 23).

Takeaways

  • Decree no. 2026-741 of 6 August 2026, JO of 7 August 2026; entry into force on 1 January 2027, with transitional provisions turning on three criteria.
  • The “arbitration centre” enters the Code of Civil Procedure.
  • Negative effect of competence-competence: a stipulation to the contrary is now admitted, provided it is express and unequivocal (Article 1448).
  • The supporting judge may render the arbitral tribunal’s interim and conservatory measures enforceable and rule on the production of documents held by a third party.
  • Statutory definition of the award (Article 1478), digital award and qualified electronic signature (Articles 1480-1 and 1480-2), liquidation of the astreinte by an award (Article 1468-1).
  • Recognition and exequatur are distinguished; a refusal must be reasoned.
  • Removal of the suspensive effect of the action to set aside and of appeal in domestic matters.
  • The judge may no longer “adjust” enforcement of the award, only suspend it, in domestic as in international matters (Articles 1497 and 1526).
  • “International economic interests” replaces “the interests of international trade” (Article 1504).
  • Before the Court of Appeal, in international matters: exhibits and oral argument in a foreign language, reasons and publicity adapted to confidentiality (Articles 1527-3 to 1527-5).
  • No Arbitration Code, no guiding principles, no unification: that will be the object of the following stages.

Notes

  1. G. Darmanin, announcement of 8 April 2025, Paris Arbitration Week: Ministry of Justice, “Vers une rĂ©forme du droit français de l’arbitrage”. ↩
  2. Working group on the reform of French arbitration law (F. Ancel and T. Clay, co-chairs), Rapport et propositions de rĂ©forme du droit français de l’arbitrage, March 2025: forty proposals and a draft Arbitration Code in one hundred and forty-six articles. Among the first commentaries: S. BollĂ©e, “Vers une rĂ©forme du droit de l’arbitrage ?”, D. 2025, no. 20, p. 960; M. Audit, “La rĂ©forme du droit de l’arbitrage : un voyage en terre inconnue”, JCP G 2025, no. 20, p. 869; “Quarante propositions pour rĂ©former le droit de l’arbitrage”, JCP G 2025, no. 14, p. 621; the special issue of the Cahiers de l’arbitrage 2025-2, in particular P. Mayer, “Quelques commentaires sur le projet de rĂ©forme du droit français de l’arbitrage”, p. 407; J. Clavel-Thoraval, “PrĂ©sentation de la proposition de rĂ©forme du droit de l’arbitrage”, RLDA 2025, no. 220, p. 26, and RLDC 2025, no. 242, p. 43. See also, in the same special issue: M. Henry, “Projet de rĂ©forme du droit français de l’arbitrage”; J. El Ahdab and J. Dalmasso, “Observations sur le projet de rĂ©forme du droit français de l’arbitrage”. For an international perspective: “Reform of French Arbitration Law: Proposals, Controversies and a (Swift) Way Forward”, Kluwer Arbitration Blog, 13 April 2025. ↩
  3. Direction des affaires civiles et du sceau, Consultation publique sur le projet de dĂ©cret rĂ©formant le droit de l’arbitrage, December 2025, closed on 20 January 2026. See D. Mouralis, “RĂ©forme du droit de l’arbitrage : premier opus de la trilogie annoncĂ©e par le garde des Sceaux”, JCP E 2026, no. 5, p. 9, and “Projet de dĂ©cret portant rĂ©forme du droit de l’arbitrage”, RTD com. 2026, no. 1, p. 68. See also J. Jourdan-Marques, “Chronique d’arbitrage : la Chancellerie prĂ©sente son projet de dĂ©cret”, Dalloz actualitĂ©, 26 January 2026. ↩
  4. Compare, on the report’s proposals to that effect, S. Henry and J. El Hage, “Centre d’arbitrage, convention et sentence : rĂ©flexions sur les propositions de rĂ©forme du droit français de l’arbitrage”, Cahiers de l’arbitrage 2025-2, p. 369. ↩
  5. On this question, O. Boskovic, “Le projet de rĂ©forme du droit de l’arbitrage et l’exĂ©cution des mesures provisoires prononcĂ©es par le tribunal arbitral”, D. 2025, p. 1522. ↩
  6. CA Paris, 24 May 1991, Rev. arb. 1992, p. 636, obs. J. Pellerin; CA Paris, 7 October 2004, Otor, Rev. arb. 2005, p. 737, note E. Jeuland: ordering an astreinte is an “inherent and necessary extension of the judicial function”. Liquidation, by contrast, went through the enforcement judge: see, for instance, in the Groupe Antoine Tabet case, Cass. 1re civ., 12 October 2011, no. 09-72.439, Bull. 2011, I, no. 164. The decree here enacts proposal no. 26 of the report. ↩
  7. CA Paris, 25 March 1994, Sardisud, Rev. arb. 1994, p. 391, note Ch. Jarrosson; definition taken up by Cass. 1re civ., 12 October 2011, cited above. The new Article 1478 alters only the order of its elements. ↩
  8. The observation is due to J. Ortscheidt (LinkedIn, 7 August 2026). Compare Article 1526 as drafted by Decree no. 2011-48 of 13 January 2011 and the draft decree submitted to consultation in December 2025, both of which retained the power to “stay or adjust” enforcement of the award. ↩