LLM student Sean Doig compares the arbitral regimes of the two countries

It is no secret that there has been a long rivalry between England and France throughout history; particularly, one of animosity and frequent hostility. For centuries, the French and British Empires fought for supremacy of the New World, later expanding their conflicting ambitions to India, the Pacific, and Africa. Today, that rivalry takes a different form.

While the two countries are great allies, politically-speaking, the race for arbitral supremacy over the other is prevalent. French and English courts are constantly bickering over who has jurisdiction in arbitral proceedings according to the vaguely-defined law governing the arbitration agreement (lest we forget Kabab-Ji).

Although, their rivalry comes as no surprise. From the decline in litigation proceedings to globalisation and the increasingly international nature of disputes, attracting arbitral proceedings to one’s host state is now an artform. Among many other jurisdictions around the globe, two major competitors in the arbitration game are London and Paris: both systems offering different approaches in areas ranging from the law governing the arbitration to the enforcement of awards.

With the upcoming 2024 Summer Olympics about to be held in Paris, there is never a better time to examine this friendly rivalry. So, get your flags at the ready. Cue the national anthems. And enjoy the spectacle of two nations going head-to-head for gold in the race for arbitration supremacy.

Team briefing

In lane one, representing France, is the International Chamber of Commerce’s International Court of Arbitration (ICC): the forefront of France’s arbitration institutions. Other key institutions on France’s team include the French Association for Arbitration (Association Française d’Arbitrage), the Regional Chamber of Arbitration (Chambre Régionale d’Arbitrage), the International Arbitration Chamber of Paris (Chambre Arbitrale Internationale de Paris), the Paris Centre of Mediation and Arbitration (Centre de Médiation et d’Arbitrage de Paris, CMAP), and the European Court of Arbitration located in Strasbourg.

In 2023, the ICC celebrated its 100^th year of service, recording over 28,000 cases since its establishment. The key industries in France for international arbitration proceedings are construction, energy, industry, and digital technologies. The majority of disputes involve contractual breaches or brutal termination of commercial relationships.

In lane two, representing England, is the London Court of International Arbitration (LCIA): the heart of English arbitration since 1889. Other key arbitration institutions on England’s team include the Centre for Effective Dispute Resolution (CEDR), the London Chamber of Arbitration and Mediation (LCAM), Falcon Chambers Arbitration, and Sports Resolution.

In 2022, the LCIA had 333 referrals with its caseload increasing by 60% in the past 10 years. Indeed, a 2021 survey by Queen Mary University of London found that London remains the most favoured arbitral seat in the world, with non-UK parties accounting for around 88% of its users. According to the LCIA’s 2022 annual casework report, the top three industry sectors dominating the LCIA’s caseload are banking and finance, energy and resources, and transport and commodities (together representing 65% of all cases).

While London would probably be a bookies’ favourite to win at this point, there are a few core aspects to each approach that require further examination.

 The legal framework governing arbitration

French arbitration law is not based on the United Nations Commission on International Trade Law (UNICITRAL) Model Law; in fact, it largely pre-dates the Model Law and differs from it in several aspects. Instead, French law distinguishes between domestic and international arbitration.

The law is mainly codified in Articles 1442 to 1527 of the French Civil Procedure Code (“CPC”) and Articles 2059 to 2061 of the French Civil Code (“CC”). The domestic arbitration regime is more strict than that for international arbitration, which allows the parties and arbitrators more flexibility in adopting arbitration procedures. According to Article 1504 CPC, arbitration is international “when international trade interests are at stake”. An arbitration is therefore deemed international upon the objective criteria relating to the trade in goods, services or financial instruments across borders, regardless of the parties’ nationality, the applicable laws, or the arbitration seat. This distinction matters since the rules applicable to international arbitration are more liberal.

Regarding both domestic and international arbitration, France created a dedicated judge (juge d’appui) to have jurisdiction over arbitration-related issues and act in support of arbitral proceedings. Such a judge may assist the parties in the constitution of the arbitral tribunal if any problem arises, particularly in ad hoc proceedings, as the judge’s role is limited in proceedings governed by institutional rules.

Additionally, the Paris Court of Appeal created a dedicated international chamber exclusively focused on appeals against first-instance decisions in cross-border commercial matters, and some other specific matters including the annulment proceedings against international arbitral awards handed down in Paris, as well as challenges against enforcement orders, in order to ensure coherent case law. Similarly, the French Supreme Court (cour de cassation) systematically assigns such proceedings to its first civil division.

In contrast, the Arbitration Act 1996 (the “Act”) regulates domestic and international arbitrations seated in England, Wales and Northern Ireland. The Act is influenced by the UNCITRAL Model Law but differs from it in some important ways. For example, the Arbitration Act is a single legislative framework governing all arbitrations, not just international commercial arbitrations. Applications in support of arbitrations are made in specialised courts of the Business and Property Court of the High Court of Justice, typically in the Commercial Court or the Technology and Construction Court.

Confidentiality of proceedings

According to article 1464 CPC, relating to domestic arbitrations, an arbitral proceeding is confidential unless otherwise agreed between the parties; such confidentiality obligation extending to the names of the arbitrators, the arbitral institution, the legal counsels, and the seat.

With respect to international arbitration, no French legal rules provide for a general obligation to ensure confidentiality for international arbitration. Consequently, the parties must enter into a confidentiality agreement, provide a confidentiality clause in their arbitration agreement, or choose an institution which expressly sets out that arbitral proceedings are confidential.

Nevertheless, article 1479 CPC provides that members of the arbitral tribunal must keep their deliberations a secret, whether it be a domestic or international arbitration.

In England, there is no express provision for confidentiality in the Arbitration Act. However, English law generally recognizes the confidentiality of arbitral proceedings, subject to limited exceptions. For instance, documents used in arbitration proceedings may be disclosed where ordered by the court, or in cases where such disclosure is necessary for a party to establish or protect their legal rights. In their 2022 review of the Arbitration Act 1996, the Law Commission  proposed that the Act should not codify English law on confidentiality in arbitration, concluding that it is an area best left to be addressed by the courts. Two reasons were given: (a) arbitration is used in a variety of instances and there is a trend towards transparency in some types of arbitrations (i.e. investor-State disputes), and (b) existing case law on confidentiality is still evolving and not yet ready to be codified.

Enforcement of arbitral awards

While France is a signatory of the New York Convention — as well as to the ICSID Convention – France put forward one reservation upon ratification in relation to the principle of reciprocity: “France declares that it will apply the Convention on the basis of reciprocity, to the recognition and enforcement of awards made only in the territory of another contracting State”. It should be noted that French law usually prevails over the New York Convention as permitted by Article VII(1) since French law is actually more favourable than the Convention itself.

An international arbitral award can only be enforced in France if it is rendered effective by an enforcement order known as an “exequatur”. This procedure is non-adversarial and only allows the judge limited control. In fact, the judge is solely requested to verify if the award whose enforcement is sought does exist, and whether it is not manifestly contrary to the French definition of international public policy. Conflict with French international public policy is the only ground for refusal of exequatur, and it is defined by French courts as the values and principles that cannot be disregarded, even in an international context. The cases where French judges refuse to grant an exequatur are very rare. Since conflict with French international public policy is the only ground for refusal, French courts may confer exequatur even if the award has been set aside by the courts in the seat of arbitration since the setting aside of an award is not a ground for refusing it.

England is also a signatory of the New York Convention, but subject to the reservation that the New York Convention only applied to awards made in the territory of another Contracting State. In IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation (2017) UKSC 16, the Supreme Court held that the Convention constitutes “a complete code” that was intended to establish “a common international approach” to the conditions for recognition and enforcement. Thus, it is not permissible to use English procedural rules to fetter a party’s rights under the New York Convention.

The procedure for enforcing an arbitral award in England is governed by the 1996 Act. Section 66 provides the following two alternative procedures for the enforcement of an award: (i) an arbitral award may, by leave of the court, be enforced in the same manner as a judgement or order of the court, or (ii) an award creditor may begin an action on the award, seeking the same relief from the court as is set out in the tribunal’s award.

To obtain a recognition and enforcement of a New York Convention award, under section 102(1) of the 1996 Act, a party must produce the duly authenticated original award and the original arbitration agreement. The grounds for refusal are set out in section 103 of the 1996 Act, mirroring Article V of the New York Convention. This means that the English courts retain their discretion to enforce an award even where one of the grounds for refusal is shown to exist. However, in practice, it is rare that the English courts would conclude that an award should be enforced if there are grounds for refusing recognition. Indeed, in Dallah Real Estate & Tourism Holding Co v Ministry of Religious Affairs (Pakistan) (2009) EWCA Civ 755, the court recognised that its discretion to enforce an award – even where a ground under section 103 exists – should be narrowly construed.

Furthermore, it is not necessary for the court to recognise and enforce an arbitral award in its entirety. In IPCO (Nigeria) Ltd, the High Court held that “award” in the 1996 Act should be construed broadly to mean the “award or part of it”, meaning the court can enforce part of an award.

Final comments

While both France and England can be said to have fairly rigid legal frameworks to facilitate arbitral proceedings and empower arbitrators to hand down their awards, there is a case to be made that France might have the upper hand; particularly in terms of a higher degree of complicity in enforcing arbitral awards on its soil. Ultimately, it boils down to which system is the best fit for one’s client. There are several other factors involved in selecting a seat of arbitration that have  not been covered here, including costs, selection of arbitrators, types of reliefs, and so on. Indeed, there is also the possibility of future reform of either the French arbitral procedure or reform of the Arbitration Act in England, therefore it is best to conduct thorough due diligence before making any legal commitments.

Sean Doig is an LLM student at Université Toulouse Capitole specialising in International Economic Law. He is currently working on his master’s thesis, and displays a particular interest in international law, technology and dispute resolution.

Université Toulouse Capitole LLM student Sean Doig shines a spotlight on climate refugees

Rewind back to 1985. New wave music is flooding the charts. Marty McFly is travelling back in time to the night of that terrible thunderstorm. A rising sea of people gathered under the July sun to witness the historical “Live Aid” concert to raise funds for famine-stricken Ethiopia, Sudan, and other African nations. But in amongst the tsunami of highlights from that year is a publication by Essam El-Hinnawi, an expert from the United Nations Environment Programme, that would start the avalanche of discussion around a critical topic for years to come.

It was this publication that first coined the term ‘environmental refugee’ to describe the “increasing large-scale migration and cross-border mass movements of people” that were partly due to weather-related disasters. Since then, weather-related crises have triggered more than “twice as much displacement as conflict and violence in the last decade”, according to the UN Refugee Agency (UNCHR). Indeed, reports from the Environmental Justice Foundation stress that weather-related extremes have caused 21.5 million displacements each year between 2008 and 2016 – that is 41 people every single minute. Those countries that are vulnerable and least developed contribute merely 1% of global emissions, yet suffer 99% of the deaths related to climate and weather-related disasters.

The reality is that no country is safe from climate impacts. From rising sea levels endangering Bangladesh, to the uninsurable Hollywood mansions threatened by wildfires; climate change does not discriminate. The fight to avoid further catastrophe undoubtedly requires international cooperation and must unite the international community.

Still, 28 Conference of the Parties (COP) on climate change later — and almost 40 years since El-Hinnawi’s publication — climate refugees simply do not exist under international law. There is no clear definition of what a ‘climate refugee’ is, and despite climate migration being a recurrent topic in international negotiations, thus far, no official status or legal protection has been granted to those affected. The lack of a legal definition for persons forced to move for climate-related reasons leaves those individuals’ need for humanitarian protection exposed.

While most people who have been forcibly displaced for climate-related reasons remain within their national borders (internally displaced), some are often externally displaced to other countries. Those who leave their countries in the context of climate change or disasters do not qualify for protection under international law.

One of the fundamental reasons given for the lack of international protection is the complexity of defining a ‘climate refugee’. El-Hinnawi’s original definition of an ‘environmental refugee’ is often attributed to a ‘climate refugee’, however the confusion as to whether there is a practical difference between ‘environmental’ and ‘climate’ remains unclear. Despite this hurdle, the challenge in securing protection for those affected by displacement due to climate change involves navigating a way to distinguish them from those ‘Convention refugees’ defined by the 1951 Refugee Convention.

Indeed, the granting of ‘refugee’ status to climate migrants was found incorrect by the UNHCR. In 2019, Dina Ionesco, head of the Migration, Environment and Climate Change (MECC) Division at the UN Migration Agency argued that this could weaken the UNHRC 1951 Refugee Convention, and further exclude support to climate-displaced persons unable to give a suitable proof that their forced displacement is due to climate.

The question, therefore, is whether climate refugees should be the subject of a new treaty or convention. The UNHCR argues that those displaced as a result of environmental change could, theoretically, rely on protection granted by their countries where internal displacement occurs. In contrast, traditional refugees cannot rely on this protection as countries are frequently the source of persecution of which the individual is fleeing. Therefore, the individual is “unwilling to avail himself of the protection of that country” as required by Article 1A(2) of the 1951 Refugee Convention. However, the reality is much bleaker for climate migrants, as certain regions are affected by recurrent climate disasters, disrupting both reconstruction efforts and the return of the displaced individuals.

In fact, what if the country loses its statehood entirely due to climate change? The Pacific Island country of Tuvalu is dealing with this question today. The country is facing the threat of disappearing entirely by the end of the century; the sea level being 15cm higher than it was 30 years ago. As Tuvalu steadily vanishes, its people are fleeing, and its government fears it may lose its statehood. In an attempt to ‘future-proof’ its sovereignty and preserve its cultural identity, Tuvalu’s government is creating a virtual country; offering digital passports, and transferring government activities – including elections – to the cloud.

According to international law, a country is required to have a physical territory and a permanent population. But it is not clear what happens if climate change strips a state of those qualities. In 2023, Tuvalu amended its constitution to assert that the country will exist “in perpetuity”, and that its maritime borders will endure even if its landmass disappears. Thus far, the new wording has only been recognised by 12 countries, but the progress is stalled, and it seems unlikely to improve. Tuvalu hopes that if other countries follow its example, international law could evolve.

Despite climate change’s clear and present danger, the people of Tuvalu will struggle to qualify for refugee status and stand to lose out on international protection they will inevitably require. Their pleading for industrialised countries to lower emissions in the past three decades have long been ignored, and the impact is sinking in.

The landmark Teitiota case in 2015 corroborates the urgent need for a broad, universal definition of a climate refugee. Teitiota was seeking refugee status in New Zealand for himself and on behalf of his family due to the threat of submergence of Kiribati Island caused by climate change. Two years after Teitiota applied for asylum based on the forced displacement caused by climate change, the New Zealand Supreme Court rejected his application on the basis that he did not fall under the scope of the Convention’s definition of a refugee. Although the judgement did not favour Teitiota and his family, the ruling opened the way for other claims on the threat to life caused by climate change. Judge Priestly stressed the idea that the legal definition of ‘refugee’ is not limited to that given by the Convention, but has the ability to be expanded and defined as “a person driven from his or her home to seek refuge, especially in a foreign country, from war, religious persecution, political troubles, natural disaster, etc.”

Subsequently, Teitiota’s father filed a complaint with the UNHCR, causing a statement to be issued acknowledging that rising sea-levels are threatening life and refugee law must be broadened to accommodate this. Indeed, the UN Human Rights Committee declared it unlawful to return individuals back to countries where their lives may be threatened by the effects of climate change, providing hope for climate refugees’ protection.

To expressly define a “climate refugee”, a new protocol should be adopted to the Convention under the mandate of the UNHCR providing a broad, universal definition preserving their rights and taking into consideration the temporary and permanent nature of their displacement. There are climate refugees who will not be in a position to return to their country of origin – particularly where small islands will be submerged, such as Kiribati or Tuvalu – therefore, climate refugees should benefit from permanent protections without fear of persecution. Further, those permanent climate refugees should “receive fundamental civilian freedoms and human rights necessities without socio-political persecution”, permitting successful integration into the host country.

The definition should also recognise internally and externally displaced persons, both with equal rights and opportunities in the receiving country as individuals with refugee status under international law. Finally, the definition should recognise that climate refugees should be understood as having a “well-founded fear” of the consequences that climate change may have on their livelihoods. Such a loss of livelihood could provoke a fear of life or death, the same criteria for evidence of persecution in the Convention definition of refugees.

Even in countries where climate change has less impact in a physical sense, the urgency and responsibility to act cannot be ignored. The Scottish government recently proved that the neglect of crucial climate targets can cripple a government to its knees.

With the number of ‘climate refugees’ steadily rising each year, it is imperative that the international community acts in a unified manner to ensure the legal recognition and protection of those vulnerable individuals displaced by climate change. Instead of more shallow climate pledges, it is time to focus on safeguarding the rights of climate migrants and getting ahead of the curve. Ultimately, international law must fool-proof itself from climate-denying governments and U-turning states, upholding the value of the rule of law for the people it serves.

Sean Doig is an LLM student at Université Toulouse Capitole specialising in International Economic Law. He is currently working on his master’s thesis, and displays a particular interest in international law, technology and dispute resolution.

Université Toulouse Capitole LLM student Sean Doig examines technology’s impact on legal education and training

No profession is immune to the intrusion of disruptive technologies. Inevitably, the legal profession is no exception, and the practice of law and the administration of justice has grown incredibly reliant on technology.

The integration of new legal technologies into legal services is driven by the incentive to provide more efficient, cost effective, and accessible services to its clients. Indeed, modern lawyers are implementing paperless offices and “cloud-based practice-management systems, starting up virtual law practices, and fending off challenges from document preparation services like Legal Zoom.”

Such profound change has even shaped new specialisms within the legal profession, including those known as ‘legal technologists’; a group of skilled individuals who can “bridge the gap between law and technology.” While the name suggests connotations of a ‘legally-minded coder’, the reality is that the majority of professional legal technologists lack any training or experience in both the practice of law and in the profession of engineering and technology management.

Legal technologists is a lucrative and growing niche, and it is insufficient for those professionals to lack the experience and knowledge in the practice of law if they are to develop sustainable legal technologies to assist the delivery of services to clients.

Indeed, disruptive technologies are constantly evolving, and with the rapid advancement of Artificial Intelligence (‘AI’) and the Metaverse, there is a need for immediate change as to the training of the next generations of legal minds. While this sort of fearmongering around obsolete skills and doomed professions is relatively commonplace among CEOs of AI companies, the need for upskilling and adaptability of lawyers has been reiterated by skeptical academics and legal professionals for years.

As early as the 1950’s, diction machines and typewriters changed the working practices of lawyers and legal secretaries. In the 1970’s, law firms began using computers and LexisNexis, an online information service, which changed the way legal teams performed research to prepare their cases. One of the more well-known ‘doomsayers’, Richard Susskind, whose book boldy — although perhaps rather prematurely – titled The End of Lawyers was published in 2008 — well before the era of ‘Suits’!

Despite Susskind’s earlier predictions of impending doom of the end of lawyers, the author’s subsequent book, Tommorrow’s Lawyers, surpasses the ordinary opinion that technology will remove jobs; instead, opts that technology will assist the work of professionals and more jobs will involve applying technological solutions to produce a cost-efficient outcome. Although technology is developing rapidly to assist professionals, Susskind identifies that there is a lack of enthusiasm among law firms to evolve their traditional practices. Conversely, the enthusiasm of law firms to incorporate technology is normally where AI or other technologies are able to boost profits and lower operating costs, rather than assisting the lawyer and delivering for the client.

The incentive for law firms to incorporate technology into their working practices is purely economical and fear oriented. Firms that do not incorporate technology will lose clients to those competitors that have efficient technological means at their disposal. There is little credible advice as to how firms can affectively alter their business model to integrate technology. After all, the billable hour is the crux of a law firm, and with AI speeding up historically slow and tedious work, its value is diminishing.

Without dwelling too much on the fundamentals of capitalism and its effectiveness as an economic system, it is important to note that technology companies — such as OpenAI and Meta – are mostly funded and motivated by shareholders. The rapid nature in the development of technology is to produce results and dividends for those shareholders. In order for the product to perform well economically, there is a rush to outdo competitors and to be disruptive in the market. If successful, the value of the company will increase, the value of the shares will increase, and the more equity the company will have to continue to grow.

This means that technology is advancing at a fast rate and is outpacing the technical skills of professionals. The cost of new technologies factors in the markup that tech companies seek to satisfy their shareholders and advance their research & development (R&D). As Susskind notes, the durability of small law firms will be put into question in the 2020’s against the rise of major commercial law firms that are able to afford to invest in competitive, new technologies.

What does this mean for law students? New skills are required to enter the new technological workforce, and those graduates that meet the skillset will be more in demand than the rest of their cohort. As a result, legal education must equally evolve to adequately prepare law students for working in technological law firms. As Susskind highlights: “law is taught as it was in the 1970’s by professors who have little insight into or interest in the changing legal marketplace”, and graduates are ill-prepared for the technological legal work that their employer is expecting from them.

It should be noted that some graduate and post-graduate courses do exist to facilitate the teaching of some of the technological skills to prepare individuals for the new workplace. Indeed, for example, there is a simulation currently in use in a postgraduate professional course called the Diploma in Legal Practice at the Glasgow Graduate School of Law. Nevertheless, the idea here is that the burden should be placed on law schools and that technological skills should be taught at the earliest stage in order to best prepare graduates for the workplace of tomorrow.

Although it is argued that the original purpose of the LLB is to teach black letter law and the skills for legal practice should be left for post-graduate legal training, this neglects those law students who do not wish to pursue the traditional post-graduate legal education; rather opting for an alternative career path in law.

In order for the value of an LLB to be upheld, it must adapt to meet the growing demand of the industry it serves. Its sanctity and popularity rests on its ability to be of use to any student seeking to have the best possible skills and, therefore, prospects in the job market. If the LLB is to survive, itself must compete with more attractive courses such as ‘Computer Science’, ‘Data Analysis’, and ‘Engineering’. It is not enough for law professors to continue to falsely assume that “students already get it”, or that if graduates work for a law firm then critical technology choices have been determined, “including case management software, research databases, website design, and policies on client communication.”

Furthermore, firms are “increasingly unwilling to provide training to incoming associates” and seek those graduates who already possess background knowledge. Undoubtedly, technology skills will elevate students’ employability, and those with tech skills will be in high demand by traditional law firms and by tech companies that service the legal industry.

While some law schools have been introducing “Legal Technology” or “Law and Technology” modules into their curriculums, it can be argued that they are insufficient to cover the array of specific skills that need to be taught, and are rather focusing merely on the impact of technology in the legal sector. The lack of innovation in law schools is placed on the lack of imagination on the part of law professors and its institutions; fearful of experimenting with the status quo of syllabises. Institutions with the courage to experiment with their curriculum to teach desirable skills in the legal market will attract and better serve a greater number of students for the new world of work.

Perhaps the most elaborate attempt to revolutionise legal education is the theoretical establishment of an MIT School of Law by author Daniel Katz. ‘MIT Law’ would be an institution that delivered a polytechnic legal education; focusing on “the intersection of substantive law, process engineering, computer science and artificial intelligence, design thinking, analytics, and entrepreneurship.” The institution would produce a new kind of lawyer; one that possessed the necessary skills to thrive in legal practice in the 21st century. With science, technology, engineering, and mathematics (“STEM”) jobs dominating the job market, there is an overlap into the legal market; giving rise to a prerequisite or functional necessity for lawyers to have technical expertise to solve traditional legal problems that are interwoven with developments in science and technology.

This hypothetical law school may seem far-fetched, but the underlining principle should be adapted to the modern LLB. Indeed, the curriculum should choose its courses upon the evaluation of the future market for legal services and adapt to the disruptive technologies becoming commonplace in the workplace. A hybrid of traditional law courses such as contract law, with more technical courses such as Machine Learning or E-Discovery should become the new normal to ensure the effective delivery of the best LLB of the future. Each course would be carefully evaluated in light of the current and future legal labour market to ensure that students are given the best possible chances after leaving the institution; whether they go on to post-graduate legal studies or not.

Sean Doig is an LLM student at Université Toulouse Capitole specialising in International Economic Law. He is currently working on his master’s thesis, and displays a particular interest in international law, technology and dispute resolution.