COMPETITION • FRENCH LAW • RESTRICTIVE PRACTICES 

An arbitration clause (clause compromissoire) is one by which the parties agree to set aside the jurisdiction of the State courts and to entrust the examination of disputes arising from the contract or its interpretation to an independent arbitrator. The question was raised as to the applicability of such a clause in the context of a dispute based on the public policy provisions of Article L. 442-1 (formerly Article L. 442-6) of the Commercial Code. After some hesitation, the courts have accepted that actions based on Articles L. 442-1 et seq. of the Commercial Code can be settled in arbitration while suggesting that the arbitrator may be required to apply the public policy provisions of Article L. 442-1. In effect, according to the Court of Cassation, an action for damages resulting from the termination of an established commercial relationship is not required to be brought before a state jurisdiction. The provision of an arbitration clause is therefore a means permitted by the Court of Cassation to avoid the jurisdiction of the specialized courts established by Articles D. 442-3 and D. 442-4 of the Commercial Code. The argument that the liability established by Article L. 442-1, II is based on tort or delict cannot be used to defeat a clear and precise arbitration clause covering any dispute or conflict between the parties.