How does an arbitration procedure work in practice?

By Yasmine EDDAM4 April 2025

You have decided, either by a clause in your contract or by an agreement made after the dispute has arisen (the compromise), to refer your commercial dispute to arbitration. This is a decisive step. But what happens next? How does this private justice system work on a day-to-day basis? The idea of a less formal procedure than the courts may be appealing, but it also raises legitimate questions about how it works, who is involved and what rules apply. This article aims to demystify the arbitration process by describing its main stages, from the constitution of the tribunal to the final decision, including the role of the various institutions and the essential rules governing the process.

Setting up the arbitration tribunal

The very first step, once the decision to arbitrate has been taken and the dispute identified, is to set up the "tribunal", i.e. to appoint the person or persons who will judge the case: the arbitrators.

The method of appointment is normally set out in the arbitration agreement itself, as required by Article 1444 of the Code of Civil Procedure. The possibilities are varied: the parties may appoint the arbitrator(s) directly, agree that they will each appoint an arbitrator and that these two co-arbitrators will then choose the chairman of the tribunal, or refer to the rules of an arbitration institution that will govern this process. The Code of Civil Procedure requires that the arbitral tribunal be made up of an odd number of arbitrators (article 1451), generally one or three, to ensure a majority decision. If the agreement makes no provision for this, or if the appointment mechanism comes to a standstill (one party fails to appoint its arbitrator, the arbitrators cannot agree on the chairman), the law provides for the supplementary intervention of the "juge d'appui" to make the missing appointments (article 1452 of the Code of Civil Procedure), thereby ensuring that the proceedings can get under way.

Once approached, the arbitrator must formally accept his mission. However, this acceptance is subject to a fundamental obligation: the obligation to disclose, set out in article 1456 of the Code of Civil Procedure. Before accepting, and throughout the proceedings, the arbitrator must disclose any circumstances likely to affect its independence or impartiality in the eyes of the parties. This includes past or present links (personal, professional, financial) with the parties, their counsel, the other arbitrators, or even any interest in the outcome of the dispute. This transparency is the cornerstone of confidence in arbitration. Failure to comply with this obligation may justify an application for the arbitrator to be challenged and, if discovered too late, may result in the award being set aside. The arbitrator's acceptance, informed by this disclosure, formalises the legal relationship between the arbitrators and the parties, sometimes referred to as the "arbitrator's contract".

The key role of arbitration institutions and the supporting judge

The arbitral tribunal is not always alone in conducting the proceedings. Two players can play an important supporting role.

If the parties have chosen a institutional arbitrationthe designated arbitration centre (e.g. CMAP in Paris, AFA, or a regional centre such as the one near Marseille if the case has a local link) will manage the proceedings in accordance with its rules. Its role is administrative rather than jurisdictional: it assists in setting up the tribunal, manages communications, collects advances on costs and fees, ensures that the timetable is adhered to, and may sometimes, depending on the rules, exercise a formal review of the draft award before it is signed by the arbitrators. The institution thus provides a valuable framework and logistical support.

As part of an arbitration ad hoc (organised directly by the parties), or if the institutional rules are silent on a point or the institution is failing, the support judge intervenes. According to Article 1459 of the Code of Civil Procedure, this is the President of the Court with territorial jurisdiction (or, if the arbitration agreement specifically provides for this, the President of the Court with territorial jurisdiction). only for the constitution of the court, the President of the Commercial Court). Its role is to subsidiary The Arbitration Committee is responsible for all aspects of the arbitration: it intervenes only to overcome any difficulties that may block the arbitration proceedings. His main tasks concern the constitution of the tribunal (appointment of arbitrators in the event of disagreement or failure to act), incidents relating to the arbitrators (decision on a challenge if the arbitrator refuses to withdraw), or the extension of the arbitration period if the parties do not agree. The supporting judge is therefore the State's guarantor of the proper functioning of private arbitration.

The rules of the game: procedure before arbitrators

Once the arbitral tribunal has been constituted, the proceedings can begin in earnest. How are the proceedings conducted?

The key word is procedural flexibility. Article 1464(1) of the French Code of Civil Procedure exempts arbitrators from following the strict procedural rules of state courts. Unless the parties have decided otherwise in their agreement or by referring to arbitration rules, the arbitral tribunal may itself define the rules governing the conduct of the proceedings (timetable, form of pleadings, taking of evidence, etc.).

However, this freedom is not total. Paragraph 2 of the same article 1464 requires compliance with the guiding principles of the trialThese are essential to ensuring fair justice. They include :

Le adversarial principle (referred to in particular in Article 16 of the Code of Civil Procedure, applicable by reference): each party must be aware of all the arguments and documents submitted by the other party and be able to respond to them effectively. No decision may be based on an element that has not been debated.
L'equality of arms The parties must have the same opportunities to present their case.
Compliance with rights of defence.
The obligation to procedural fairnessThis is the responsibility of both the parties and the arbitrators (article 1464, paragraph 3). One aspect of this loyalty is sanctioned by Article 1466: a party who knowingly refrains from invoking an irregularity before the arbitrator in due time is deemed to have waived it and may not subsequently invoke it.

In addition to these principles confidentiality of the arbitration procedure, which is the default rule in domestic law under Article 1464(4), unless the parties wish to derogate from it.

In practical terms, an arbitration procedure often (but not necessarily) involves the following phases:

Initial phase : The parties specify their claims and arguments, often in an initial brief or at an initial meeting with the arbitrators, which may result in a "Terms of Reference" defining the scope of the dispute and the applicable procedural rules.
Written phase : Several rounds of exchanges of "briefs" (written submissions) and supporting documents allow each party to develop its arguments and respond to those of its opponent.
Administration of evidence : The arbitrators conduct the hearing. They may order the production of documents held by a party, including under penalty (article 1467, paragraph 3). They may hear witnesses (who do not take an oath, article 1467, paragraph 4) or appoint a technical expert to enlighten them on a specific point.
Oral phase : One or more hearings may be held to allow the lawyers to make oral submissions, the parties to express their views and the arbitrators to ask questions to clarify certain points.
Closure of appraisal : Once the arbitrators consider themselves sufficiently informed, they declare the proceedings closed (article 1476). After this date, no new arguments or documents may be added to the file, unless expressly requested by the court.

The question of time: the arbitration deadline

Contrary to popular belief, arbitration proceedings are not endless. It is bound by a precise time limit.

If the arbitration agreement does not specify a duration, the arbitrators' term of office is limited to six months from the day on which the last arbitrator accepts his or her assignment (articles 1456 and 1463 of the Code of Civil Procedure). The parties may, however, agree to a different, shorter or longer period, either directly in their agreement or by adopting arbitration rules that provide for a specific duration.

This period, whether legal or contractual, can be extended (article 1463, paragraph 2). An extension may be granted by unanimous agreement of the parties. In the absence of agreement, it may be requested by a party or by the arbitral tribunal itself from the supporting judge (or from the arbitration institution, if its rules so provide). It is important to anticipate this request before the initial time limit expires, as once the time limit has expired, the arbitrators are no longer empowered to give a valid ruling.

The course of the period may also be affected by the causes of suspension orinterruption provided for by law (Articles 1471 to 1475 of the Code of Civil Procedure). This is the case, for example, in the event of the death of a party, certain incidents such as an application for a challenge being examined, or if the arbitral tribunal decides to stay the proceedings pending an external event (for example, a related criminal decision, although this is less automatic than before). After an interruption or suspension, the proceedings resume and the time limit continues to run, with the arbitrator even being able, in certain cases, to decide to extend it (Article 1475, paragraph 2).

The end of the proceedings: deliberation and sentence

Once the investigation has been completed, the arbitral tribunal enters the final phase: decision-making.

The referees retire to deliberate in secret (article 1479 of the Code of Civil Procedure). This phase of collegial discussion is essential and its absence could vitiate the decision. The decision is then taken by majority of votes (article 1480).

The arbitration proceedings come to an end with the pronouncement of the arbitral awardThis is the decision ruling on all or part of the dispute. This decision entails divestiture of the arbitrators (article 1485): their mission is over for what has been judged. The proceedings may also be terminated, less satisfactorily, by theexpiry of arbitration period if no award has been made in time (article 1477).

The arbitration process, while potentially flexible, is governed by rules and key stages that need to be understood. A good grasp of the procedure is essential if you are to defend your interests effectively throughout the proceedings. Our firm will assist you at every stage of the arbitration, from the setting up of the tribunal to the closing arguments.