Where the arbitration agreement is not explicit about the language of arbitration, this language must be determined on a case-by-case basis, by reference to a number of indicators, including the language of the contract. In a sociologically bilingual country such as Tunisia, where business contracts are often concluded and executed in French, the clause which provides that Tunisian law is applicable does not mean that the Arabic language should be chosen as the language of arbitration. Similarly, the fact that the Arabic language is declared by the Tunisian constitution as the official language of the Republic is in no way incompatible with the conduct of arbitration in another language, both internally and internationally.
The implementation of the language of arbitration can raise serious issues when the arbitrator chosen by one of the parties does not master the language of arbitration, especially when there is a delaying tactic behind such choice, tending to obstruct the arbitral justice.
Another issue that must be resolved while bearing in mind the flexibility of arbitration, is the production of evidence in a language other than the language of arbitration. This difficulty cannot, however, be resolved in disregard of the rule of the adversarial process, which does not allow the arbitrator to go so far, as to translate himself and on his own initiative a document produced in another language, without giving opportunity for the other party to express its views on it.
Recourse against the arbitrator’s decision on the language of arbitration is problematic, as one must first determine the nature of the decision (procedural order or partial award). The fact that the arbitrator’s decision resolves the dispute on a procedural ground, but does not terminate the proceedings, should lead to the dismissal of the action for setting aside the decision. Unless the arbitrator violates the explicit choice of the parties, the conduct of the arbitration in another language is neither a violation of a rule of public policy, nor a breach of a fundamental rule of procedure within the meaning of the applicable rules.
The construction of the provisions of the arbitration Code dealing with recognition and enforcement of the arbitral award leads to the conclusion that the arbitral justice should not be undermined by giving the party against whom the award was pronounced, the opportunity to use the language of the arbitration and its possible violation by the arbitrator, as a ground for opposing enforcement of the award.
Revue de l’arbitrage