The domestic Arbitration proceedings are usually confidential. However, the French Arbitration Law does not provide the confidentiality in international arbitrations and French case law has not always been consistent in this regard.

For instance, in Aïta v. Ojjeh, the Court of Appeal ruled in favor of a general principle of confidentiality in 1986 as it held that the highest degree of discretion was an inherent characteristic of the arbitration process in the resolution of disputes of private character while requesting the plaintiff to prove the existence of this principle in Nafimco v. Forster Wheeler Trading Company in 2004.

The absence of provisions relating to confidentiality in the international arbitration provisions of the French Arbitration Law can be explained by the need to allow certain type of investment arbitrations, or arbitrations where public interests are at stake, to be seated in France. The regime introduced by the French Arbitration Law fails to create a general rule in respect of confidentiality. It allows for a more flexible approach where the parties are encouraged to agree to keep arbitration proceedings confidential or, where they have elected to conduct the arbitration under the aegis of the International Chamber of Commerce, request the arbitral tribunal to issue a procedural order relating to confidentiality generally or the confidentiality of certain aspects of the case. The law of the seat of arbitration must therefore be read in conjunction with the applicable rules chosen by the parties.

There is no doubt that the presence of the ICC International Court of Arbitration in Paris and its contribution to the development of the practice of international arbitration in France created the necessary impetus for a new codification of the French arbitration law to facilitate the practitioners and end users’ access to the pertinent procedural provisions.

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