On
10 July 1843 the French Cour de Cassation rendered the famous Prunier judgment
which, in the name of ideals which were profoundly hostile to arbitration, set
aside the arbitration clause and thus considerably limited recourse to this
form of dispute resolution. The history of arbitration in the 19th century
cannot however be reduced to such reasoning, as is demonstrated by a complete
review of case law on this topic up until the eve of the New York Convention. This
reveals that whilst French courts for a long time demonstrated hostility
towards arbitration agreed before a dispute has arisen, whether by means of an
arbitration clause or because the parties are in a context of compulsory arbitration,
they were in contrast much less severe when the parties have agreed to
arbitration after the dispute has arisen; by this means they allowed, as from
the 1840s, the nullity of such clauses to be perfected, or agreements to
arbitrate to be upheld. Progressively and as from the 1860s, under the impulse of
certain judges, such reasoning was applied to the entirety of the arbitral
proceedings, and one can thus see French courts articulating an increasingly
favourable right to arbitration, resulting from courts’ preference to uphold
the wishes of the parties rather than codified rules. While at the onset of the
20th century French courts were seised of the first international arbitrations,
this movement further led them to construct an even more favourable regime,
which was not without influence in domestic law, in particular in relation to
the arbitration clause.