ARBITRATION

                      Arbitration

With rbitrage, procedure of payment of a litigation by people named by the parts in order to slice a disagreement. The arbitration, which is presented in the form of an alternative solution at traditional justice, is used more and more by the companies in commercial matters. This possibility tends to develop, as well at the national level as international, because of the advantages which it has at the glance procedures carried in front of the traditional courts.

The first advantage of the arbitration is in the possibility offered to the parts to choose their referees according to a certain number of criteria, which can vary according to litigations' to solve.The second advantage is due to the simplification of the procedure, insofar as the parts exempt the referees to respect the formalism imposed by the legal procedure.

In addition to its speed and its economic character, the arbitration offers the advantage of discretion, since the referees, who do not deliberate in public, are held to respect an obligation of confidentiality. The sentences (legal term given to the arbitration decisions) delivered by the referees, unlike the stops or of the judgements given by the courses and the courts, are not the subject of any publication.

The recourse to the arbitration is also appreciated at the international level, because it avoids with the parts of different nationalities carrying their litigation in front of jurisdictions whose language and procedure are generally obscure for them, even unknown.

Lastly, even if one of the parts obtains a decision of court which consolidates the defense of its interests, it is likely to encounter difficulties to enforce this judgement in the country of the opposing party, because the procedure of recognition of the foreign judgements is particularly complex in the absence of International Convention in this field. Contrary, the arbitration decision is often well accepted by the parts, which more easily carry out in fact the decision which puts a term at the litigation which opposes them.

There exists however, of the fields in which its recourse is prohibited, in particular for all that concerns the law and order,  heard like the legal organization of the life in company. Thus, for example, the arbitration is interdict in all the matters which control the state and the capacity of the people (marriage, divorce, filiation). In the field of the trade, the arbitration cannot apply as regards legal rectification of a company and thus come to replace the action of the commercial courts, the matter concerned with the law and order known as economic.On the other hand, there or it has vocation to apply, the arbitration developed considerably: if it should not inevitably be apprehended as competitor at the other techniques of the right which have the aim of settling a disagreement, the arbitration presents the merit of the effectiveness and the speed. The recourse to the arbitration can be decided either in preparation for the supervening of the litigation, or subsequently to its realization.First of all, the parts with a contract can decide to resort to the arbitration as of the negotiation and the drafting of the contract while inserting there what the right names a "arbitration clause". To be juridically valid, this clause must be written and to make appear, if not the identity of the referees, at least the methods of their designation.

Although used in a preoccupation with a precaution, such a clause present of the dangers to the people not very ready to seize the exact range of it. This is why the arbitration clause is licit only in commercial matters, i.e. when it relates to contracts concluded between tradesmen or companies, namely of the people presumedly able to defend their interests during a negotiation of businesses. This restriction is likely to protect the interests from the neophytes, and thus to avoid the economic abuses power.

The parts can also have recourse to the arbitration after the supervening of the litigation, when those are intended in order to establish a compromise of arbitration. This one, to be valid, in particular requires (as for the arbitration clause) to be noted in writing, which having to specify the nature of the litigation to be solved, the identity of the referees and the methods of their designation.

The arbitration jurisdiction can be made up of only one or several referees, always in an odd number. Generally, the arbitration jurisdictions comprise three referees, so that each part (generally two) can designate a referee, which choose the third then. The referees are physical people, selected on lists drawn up by centers of arbitration, which generally depend on the Chambers of Commerce and Industry. The referees are held with the respect of the principle of the contradictory one, which means that they must convene the parts and invite them to present their arguments and means of defense, and to also take care that each one can know the content of the arguments of right which are opposite for him (it is the principle of the communication of the parts). Lastly, the referees must justify their decision, i.e. to indicate the reasons of right which justify the conclusions of their decision.

The award results from a secret deliberation of the referees, adopted in the majority of the voices. The sentence is analyzed in a true decision of court which profits from the authority of the final decision and thus prevents the parts from carrying the same litigation in front of a court. However, it does not profit from the executory force attached to a judgement or a stop. The execution of the award thus rests for a share on the volunteer tender of the parts, which recognize the legal authenticity of the award 

In the event of non-observance, by one or the other of the parts, the award, it is then necessary to require the distraint of it. In the case of France, this competence belongs to the Court of Bankruptcy, whose task consists in checking the formal regularity of the convention and the arbitration. The judge cannot examine the business at the bottom, it can return only one decision  of exequatur, allowing the part which intends to be prevailed of the arbitration decision to force its adversary to subject itself to it.