How to react to a document production request in international arbitration, in light of the French blocking statute?
A French entity, or one with interests in France, is ordered by an arbitral tribunal to produce documents.
A French company is ordered by an arbitral tribunal to produce documents and is wondering how to respond and whether such disclosure would be lawful.
A French entity receives a document production order from an arbitral tribunal and wishes to respond while complying with its obligations under French law. It wishes to know whether it can rely on the French blocking statute and, if not, how to frame an appropriate response while protecting its interests.
Our client's challenge
Complying with an arbitral tribunal’s order to produce documents while ensuring compliance with the French blocking statute.
Following a decision by an arbitral tribunal ordering the production of documents, the French party wishes to comply with the order to avoid any adverse inferences and, consequently, an unfavorable award. However, before doing so, it seeks to ensure that Law No. 68-678 of 26 July 1968, known as the French Blocking Statute, does not prohibit it from disclosing the requested documents.
This law provides that, “subject to treaties or international agreements and to laws and regulations in force, it is prohibited to request, seek or disclose, in writing, orally or in any other form, economic, commercial, industrial, financial or technical documents or information intended to constitute evidence for use in, or in connection with, foreign judicial or administrative proceedings” (Article 1 bis of Law No. 68-678 of 26 July 1968).
French case law has clearly ruled out the application of this provision in arbitral proceedings.
In a decision of the Versailles Court of Appeal (1st Chamber, 9 February 2017, court docket No. 15/01760), the court held that: “the law of 26 July 1968, which establishes a ‘blocking’ mechanism, is inapplicable before an arbitral tribunal.”
Accordingly, a French entity cannot rely on Article 1 bis of the French Blocking Statute to justify a refusal to produce documents in an international arbitration.
Our way
A structured approach to document production requests in international arbitration.
We support our clients throughout every stage of arbitration proceedings. During the document production phase, we assist them in evaluating, where appropriate, the legal and strategic grounds for resisting the disclosure of documents requested by the opposing party.
For instance, we examine the relevance and proportionality of the other party’s document production request, as well as issues of confidentiality, protection of trade secrets, and the possible implementation of specific procedural measures (such as confidentiality orders or restricted access protocols, etc.).
We also analyze the laws and case law that may influence the decision to produce or withhold documents in the context of arbitration. In this respect, we can show that Article 1 bis of Law No. 68-678 of 26 July 1968 (the so-called French Blocking Statute) does not apply in this context, as French courts have held that this provision is inapplicable before arbitral tribunals.