La tradition française de l’arbitrage

Abstract

Roman rules and thus devoted the fact that the arbitration is based on the will of the parties. But at the same time France gradually forged its own model, which came in particular from the fact that the arbitration was submitted to the appeal to the Parliament, institution by which the king controlled justice and asserted his position of sovereign from the Middle Ages. In the French tradition of arbitration, a first break occurred in the Sixteenth century, when Chancellor Michel de L'Hospital wanted to make binding arbitration between merchants and members of the same family, to preserve their good relations. Judges who saw their jurisdiction reduced did not accept it and arbitration became one of the means of the struggle between the king and his judges, a struggle that arose from the wars of religion and worsens in the Seventeenth and Eighteenth century. A second rupture then occurred during the French Revolution. It was then a question of rendering the exercise of justice to the citizen and the revolutionary legislator developing the arbitration, which also remained the means for him to divert the parts of the traditional justice, whose power was wary. Finally, the arrival of Napoleon Bonaparte in power and the Code of Civil Procedure marked a third break: the Emperor then profoundly reformed the law as justice and confidence in this institution, organized as the best possible, was restored. Arbitration was therefore rejected at the margin, as a mode of dispute resolution lower in quality and not having all the guarantees of good justice. It was only with the revival of international trade in Europe at the end of the Nineteenth century that arbitration regained its utility, the favor of political power and the favor of judges.

Keywords

• arbitrage
• histoire
• justice
• clause compromissoire
• arbitrage commercial international
• Michel de l’Hospital
• Parlement
• Révolution française
• Code de procédure civile