French arbitration law is codified under Articles 1442 to 1527 of the French Code of Civil Procedure (CCP) reformed by Decree No. 2011-48 of 13 January 2011. French law provides for a dualistic approach separating domestic and international arbitration. Provisions on international arbitration are embodied under Articles 1504 to 1527 CCP. Article 1506 CCP sets forth several articles related to domestic arbitration that are also applicable to international arbitration.2
French law on international arbitration provides for no specific formal requirement in relation to the arbitration agreement. French law affirms both the positive and negative effects of the compétence-compétence principle: the arbitral tribunal has exclusive jurisdiction to rule on objections to its jurisdiction;3 and when a dispute subject to an arbitration agreement is brought before a court, such court shall decline jurisdiction, except if an arbitral tribunal has not yet been seized of the dispute and if the arbitration agreement is manifestly void or manifestly not applicable.4
French courts have the power to assist arbitration during the constitution of an arbitral tribunal through the supporting judge both in the taking of evidence and by ordering interim measures.
The confidentiality provisions are only applicable to domestic arbitration; they do not apply to international arbitration. Hence, if parties want to make sure that their proceedings remain confidential, they have to make an express provision to that effect.
Disputes related to arbitration at the setting aside stage are submitted to the Paris Court of Appeal. The time limit to submit an application to set aside an award rendered in France is one month from the service (signification), unless otherwise agreed by the parties.5 An award may be set aside on the basis of one of the following grounds:
- the arbitral tribunal wrongly upheld or declined jurisdiction;
- the arbitral tribunal was not properly constituted;
- the arbitral tribunal ruled without complying with the mandate conferred upon it;
- due process was violated; or
- recognition or enforcement of the award is contrary to international public policy.6
The enforcement of international arbitral awards is sought before the Tribunal de grande instance for awards rendered abroad or in Paris.
The parties can also apply for the revision of an award before the arbitral tribunal.7
Historically, French courts have adopted a pro-arbitration stance significantly contributing to the evolution and codification of law and practice with their profuse jurisprudence. Therefore, France is traditionally considered to be one of the most-preferred places for arbitration. However, as explained in the previous edition and below, some recent trends in case law might have brought about a change to this state of things.
The International Court of Arbitration of the International Chamber of Commerce is based in Paris, which means that disputes between parties and the institution are submitted to the French local courts.
The local arbitration institutions include, among others, the Centre of Mediation and Arbitration of Paris, the French Arbitration Association and the International Arbitration Chamber of Paris.
ii THE YEAR IN REVIEW
i Developments affecting international arbitration
The French system has witnessed recent modifications to the definition of the arbitration agreement,8 as well as the introduction of provisions related to the immunity of assets of foreign states in France9 that set a requirement of a prior court authorisation, and a limited number of cases in which it can be granted, to enforce or take interim measures against the property of foreign states.
As explained in the previous edition,10 2018 was particularly marked by the creation of the International Chamber of the Paris Court of Appeal (CICAP). The CICAP was set up to hear disputes involving international trade interests at stake, which include cases related to international arbitration. The CICAP also has jurisdiction to hear appeals of decisions of the International Chamber of the Paris Commercial Court in the first instance. The procedure before this new Chamber is tailored to be adapted to international commerce and to improve the efficiency of proceedings. Thus, exhibits can be submitted without being translated into French and pleadings can be conducted in English. There is also the possibility to hear witnesses and experts in English. However, parties' submissions are still to be drafted in French. While cases related to set-aside proceedings and enforcement proceedings were traditionally allocated to Paris Court of Appeal Pole 1 Chamber 1, as of March 2018, it appears that new cases in these matters are now referred to the CICAP (Pole 5 Chamber 16).
During 2018, out of 137 arbitration proceedings seated in France, 135 ICC cases were seated in Paris. Only one LCIA arbitration was Paris-seated.
ii Arbitration developments in local courts
Jurisdiction and admissibility of claims
Jurisdiction is one of the five grounds under Article 1520 CCP to set aside an arbitral award in France. The French courts recently confirmed that this provision does not encompass any ground in relation to the admissibility of a claim.
The French Court of Cassation ruled on 10 January 2018 that an award on the issues of admissibility of a claim and power of representation – whatever the terms used by the parties or the arbitral tribunal – cannot be subject to set-aside proceedings before state courts.11 The facts of the case date back to 1994, when Jnah entrusted the exploitation of its hotel in Beirut to Marriott. Following a dispute between the parties, two ICC arbitral awards were rendered by two different arbitral tribunals: Jnah I on 30 October 2003 and Jnah II on 4 June 2009. While the second arbitration proceedings were ongoing, pursuant to the agreement with the new shareholders, Mr Ziad Z was assigned all rights and liabilities in relation to the outcome of the dispute, and filed a third request for arbitration in 2010 to obtain damages from Marriott following the termination of the exploitation contract (Jnah III). The arbitral tribunal denied jurisdiction to hear the case, as it considered that the power granted to Mr Ziad Z was limited to the Jnah II arbitration and did not intend to cover any future claims.
On 17 December 2013, the Paris Court of Appeal set aside the Jnah III arbitral award on the ground that the disputed question was a matter of jurisdiction and thus fell under the scope of Article 1520 (1) of the CCP. Upon appeal of the decision before the Court of Cassation, the Court quashed the 17 December 2013 decision, considering that the arbitral tribunal had assessed the matter of admissibility of the request for arbitration and not the question of jurisdiction.
The case was later reheard before the Versailles Court of Appeal, which rejected all grounds to set aside the Jnah III award on 30 June 2016 by confirming that the court has the power to requalify the issues submitted to the arbitral tribunal, and that the issue at stake was a question of admissibility of the request for arbitration not qualifying as a ground admitted by French law to set aside the arbitral award. The decision of the Versailles Court of Appeal was examined before the Court of Cassation, which held that the Court of Appeal is empowered by the CCP to raise of its own motion a ground of inadmissibility resulting from the lack of a valid basis for a set-aside application. Therefore, French courts are free to analyse the awards and requalify the issues at stake, when necessary, without consideration of the terms chosen by the arbitral tribunal or suggested by the parties.
Another decision dealt with a dispute originating from the issue of embargo and international sanctions. In 1980, the Ministry of Defence of the Republic of Iraq concluded two contracts with Italian company Fincantieri Cantieri Navali Riuniti for shipbuilding and delivery, as well as assistance services for the construction of a naval site. The performance of the contracts was then made impossible because of the sanctions enforced by the UN against Iraq. The Ministry of Defence of Iraq requested the Paris Court of Appeal to annul the award of the arbitral tribunal, rejecting the claims as inadmissible because of the embargo measures imposed by the UN Security Council. On 16 January 2018, the Court of Appeal ruled that this decision could not be appealed as it dealt with the admissibility of the claims and not with its jurisdiction.12 In addition, the Court of Appeal also held that international public policy was not violated since the arbitrators did not commit a denial of justice, and confirmed that the interpretation of the UN's resolutions and the EU's regulations made by the arbitral tribunal did not breach international public policy.
A third case concerned the ground of jurisdiction, and more specifically the extension of an arbitration agreement to non-signatories. On that occasion, the Paris Court of Appeal had to consider whether an arbitration agreement could have been extended to the other members of a consortium who had not signed the agreement. In its decision of 18 December 2018, the Paris Court of Appeal partially set aside an arbitral award on the ground that the arbitrator incorrectly refused jurisdiction over some of the non-signatories of the arbitration agreement.13 In this case, a services agreement related to a tender for the partial privatisation of the post and telecommunications services of Kosovo was executed between the principal investor on behalf of the consortium of the investors – the other members of the consortium not having signed the agreement – and two consulting firms. Following a dispute between the parties, the consulting firms filed a request for arbitration against all the investors and members of the consortium. The sole arbitrator upheld his jurisdiction regarding the principal investor, but refused to extend the arbitration agreement to the other members of the consortium.
The set-aside judge had to verify whether the arbitral tribunal correctly upheld or denied jurisdiction by examining all factual and legal elements required to establish the scope of the arbitration agreement. French material rules provide that an arbitration agreement is independent from the contract it is contained in, and its existence and validity depend only upon the common intention of the parties. The Court of Appeal held, in consideration of the elements submitted by the parties, that two out of the four investors also had knowledge of the arbitration agreement and were directly implicated in its performance. The Paris Court of Appeal thus reiterated the principle of autonomy of the arbitration agreement, which should be extended to the parties directly concerned by the performance of the contract and to the related dispute, when factual elements suggest that they were familiar with the existence and scope of the arbitration clause, although they were not directly signatories of the underlying agreement.
Independence and impartiality of arbitrators
The grounds of independence and impartiality of arbitrators was thoroughly considered in the previous edition.14 This year, developments concern primarily the requirement of prompt disclosure by arbitrators of any circumstance of such nature as to affect their independence or impartiality and such ongoing duty of arbitrators. The position of the French courts has traditionally been in favour of a very wide disclosure obligation, imposing a subjective standard on arbitrators. This year, case law seems to have introduced a nuance to the picture.
The first case under scrutiny concerned an agreement executed in 2007 between a Qatari company, Saad Buzwair Automotive Co (SBA), and an Emirati company, Audi Volkswagen Middle East Fze LLC (AVME), concerning the distribution of Audi vehicles and spare parts by SBA in Qatar and other related customer services. Another agreement was executed in relation to Volkswagen vehicles. In 2011, AVME informed SBA of its intention not to renew these distribution agreements. Subsequently, SBA initiated arbitration proceedings on the basis of the arbitration agreement contained in both contracts.
The arbitral tribunal rendered an arbitral award on 16 March 2016 in which it decided that AVME's decision not to renew the contracts was valid, rejected SBA's claims and ordered SBA to bear all the costs of the arbitration. Upon SBA's application, the case was referred to the Paris Court of Appeal on the ground that the constitution of the arbitral tribunal was irregular. SBA submitted that one of the arbitrators failed to disclose existing links between his legal firm and entities of the Volkswagen group, these circumstances being likely to create a reasonable doubt as to his independence and impartiality. SBA asserted in particular that, after the award was rendered in March 2016, it found out from a lawyers' directory that the arbitrator's law firm represented a joint venture composed of three banks, including Volkswagen Bank, an entity belonging to the Volkswagen group in 2010. The later edition of the same directory revealed that Porsche (which is part of the Volkswagen group) was also represented in an ongoing dispute by the arbitrator's law firm, and specifically by its arbitration and mediation department.
The Paris Court of Appeal first observed that the arbitrator did not make any disclosure when he was appointed in 2013, further considered that the testimony of the legal director of the distribution department of Porsche did not exclude the possible assistance by the arbitrator's law firm, and found that the information that Porsche was one of the top five clients of the arbitrator's firm was not disclaimed. If the existence of services rendered in 2010 by the arbitrator's firm could indeed be considered as a well-known fact, as it had been available in the public directory since the beginning of the arbitration, the parties were not supposed to continue to monitor such facts during the proceedings. Rather, it is an arbitrator's duty to inform the parties of any fact or circumstance likely to affect his or her independence or impartiality after the acceptance of his or her mandate. Setting aside the award, the Paris Court of Appeal confirmed its strong stance when it comes to arbitrators' duty of disclosure: if public information available before the beginning of an arbitration can be easily retrieved by the parties, it cannot reasonably be expected that the parties continue to peruse all public sources of information likely to contain the name of the arbitrator and any related persons and entities, or continue their research after the beginning of proceedings.15
In another decision, the Paris Court of Appeal upheld an application to set aside an arbitral award on the ground that the arbitral tribunal was not lawfully constituted due to the deliberate withholding by an arbitrator of his past appointment.16 A dispute arose between Bouygues Batiment Ile-de-France (Bouygues) and Elcir concerning the outsourcing of some carpentry services for a construction and renovation project in France. In its request for arbitration, Bouygues nominated one of the arbitrators mentioned in the list annexed to the arbitration clause of the contract. Elcir challenged the appointment of this arbitrator and proposed another one, also mentioned in the same list prepared by Bouygues. The sole arbitrator rendered an award on 10 September 2015 holding both parties liable and ordering Elcir to bear some outstanding amounts.
On 12 October 2015, Elcir filed a set-aside application on the ground of the unlawful composition of the arbitral tribunal and the non-compliance with its mandate, alleging that:
- the arbitration was domestic and not international;
- the list of the arbitrators annexed to the arbitration agreement was imposed by Bouygues;
- the sole arbitrator failed to disclose that he was appointed as arbitrator in another case in 2013 between Bouygues and a third party; and
- contrary to his statements in the declaration of independence, the sole arbitrator was no longer registered as an expert at the Paris Court of Appeal.
Regarding the improper composition of the arbitral tribunal, the Paris Court of Appeal requested the sole arbitrator to specify the number of cases involving entities of the Bouygues group between 2008 and 2014 in which he was a sole arbitrator or a member of the arbitral tribunal, and the number of cases in which he was appointed as an expert. The sole arbitrator indicated that he had been appointed only once in a case between Bouygues and another company, and that no award was rendered as the parties settled their dispute. The Paris Court of Appeal decided that such information should have been disclosed to the parties by the sole arbitrator, and thus annulled the award. By doing so, the Paris Court of Appeal sanctioned the reluctance of a party and the sole arbitrator to disclose previous appointments spontaneously. This confirms that the deliberate withholding by an arbitrator of his or her past appointment in a case involving one of the parties only some months before the beginning of proceedings is a circumstance that raises a reasonable doubt as to his or her independence and impartiality.
In the Tecnimont case, an ultimate decision was rendered by the Court of Cassation after 10 years of endless back and forth before the French courts.17 The Court of Cassation ruled on the requirements of independence and impartiality and the parties' loyalty by imposing a certain duty of the parties to investigate – which seems to be contrary to previous case law – during arbitration proceedings. In this famous case, Italian company Tecnimont SpA had concluded a subcontract with Greek company J&P Avax for the construction of a propylene production plant in Greece. Tecnimont initiated arbitration proceedings pursuant to the ICC Rules in Paris. The conflict arose out of the late disclosure by the president of the arbitral tribunal of links between his law firm, Jones Day, and some companies in the Tecnimont group. J&P Avax filed a challenge before the ICC after the time limit of 30 days under the ICC Rules had elapsed, which was eventually rejected. In these circumstances, a partial award on liability was rendered in Tecnimont's favour on 10 December 2007, against which J&P Avax initiated set-aside proceedings in Paris. In the meantime, further information regarding links and a relationship between the law firm and Tecnimont's affiliated companies came to light.
The first episode of the saga saw the Paris Court of Appeal set aside the partial award.18 This decision was subsequently quashed by the Court of Cassation in 2010.19 The case was reheard and set aside for the second time before the Reims Court of Appeal,20 but was also quashed by the Court of Cassation.21 In the third episode before the Paris Court of Appeal, the Court rejected the set-aside application on the basis that the information disclosed was publicly available and could have been discovered earlier, and new information was not 'aggravating in a significant manner doubts about the independence and impartiality of the arbitrator'.22 Contrary to the Advocate General's opinion, the Court of Cassation this time endorsed the Paris Court of Appeal's decision, holding that J&P Avax was not allowed to invoke before the set-aside judge:
- the facts included in the challenge before the ICC that were belated, as they were introduced after the 30-days' time limit;
- new facts that were aimed at supplementing the previous disclosure and that were not significantly aggravating doubts regarding the independence and impartiality of the arbitrator; and
- other facts on the sale of Tecnimont to Maire Tecnimont, which were not facts such as to create reasonable doubts about the independence of the arbitrator.
Finally, an interesting decision was rendered in April 2018 by the European Court of Human Rights (ECHR) rejecting an appeal against France on the grounds of lack of independence and impartiality of the judges of the Court of Cassation.23 In this case, a Belgian company, Projet Pilote Garoubé (Garoubé), and the state of Cameroon entered into a concession contract. Pursuant to the terms of the contract, Garoubé was granted the exploitation of protected territory in the north of Cameroon to establish a ranch dedicated to the breeding of wild species, meat production and ecotourism. In 2007, Garoubé filed a request for arbitration with the ICC pursuant to the terms of the arbitration agreement and the parties agreed to transfer the seat to Paris. The arbitral tribunal rendered a partial award in favour of Garoubé in 2010. Following Cameroon's application, the Paris Court of Appeal set aside the award on the ground of irregular constitution of the arbitral tribunal.24 The Court of Cassation rejected the appeal.25
Garoubé filed an application to the ECHR on the basis of Article 6 Section 1 of the European Convention on Human Rights considering that the fact that, just before the hearing of the Court of Cassation, two of the three judges attended a Comité français de l'arbitrage meeting together with lawyers of the state of Cameroon and one of the arbitrators, seriously undermined the impartiality of said judges. The ECHR's decision was straight-forward and perfectly in line with French case law: 'the circumstance that a judge is attending meetings or scientific events without any link with the case in question along with the representatives of a party is not such as to cause to the other party apprehension that could be objectively justified'.
The principle of waiver (codified in 2011 as the estoppel principle) provides that 'a party that, knowingly and without a legitimate reason fails to object to an irregularity before the arbitral tribunal in a timely manner shall be deemed to have waived its right to avail itself of such irregularity'.26 A recent interpretation was provided by the First Civil Chamber of the Court of Cassation on 28 February 2018 quashing a lower decision from the Court of Appeal on the basis of the estoppel principle.27 According to the Court of Cassation's reasoning, the Court of Appeal failed to uphold the contradiction in the conduct of a party, which, in succession, issued a summons for legal action before the state courts, referred the matter to an arbitral tribunal and then challenged the jurisdiction of the state courts.
In addition, in the Tecnimont case mentioned above, the 2018 Court of Cassation decision reinforces the estoppel principle providing that a party that fails to promptly object to the irregular constitution of an arbitral tribunal waives its rights to do so and cannot invoke such irregularities at the stage of set-aside proceedings.
Enforcement of international arbitral awards
As mentioned above, the French legislator introduced new provisions on immunity of foreign states.28 A decision of the Court of Cassation of 10 January 2018 ruled that, notwithstanding the fact that the above provisions do not apply to enforcement measures made prior to the entry into force of the new law,29 they should nevertheless be taken into account.30 The case at hand arose from the first arbitral award rendered on 3 December 2000 between the Republic of the Congo and the Commissions Import Export (Commisimpex). The Republic of the Congo undertook to waive finally and irrevocably any immunity of jurisdiction and execution in the following terms in 1993: '[a waiver] to invoke in the context of any dispute resolution in relation to the commitments contained herein [in the 1993 agreement] any immunity from jurisdiction and from execution'. Commisimpex sought the enforcement of the award, and attached several bank accounts of the diplomatic mission of the Republic of the Congo and its delegation to the UNESCO in Paris. These attachments were then lifted, and Commisimpex filed an appeal.
On 13 May 2015, the Court of Cassation quashed the Versailles Court of Appeal decision, considering that customary international law does not require any specific waiver of immunity from execution but only an express one.31 This decision was then confirmed on the merits by the Paris Court of Appeal, and the Republic of the Congo again filed an appeal to the Court of Cassation. The ruling of the Court of Cassation states that, pursuant to the new Article L111-1-3, interim or enforcement measures can be taken only in the case of an express and specific waiver by a foreign state. This is in clear contradiction with its previous decision of 13 May 2015. The reason seems to be the 'imperious necessity', when it comes to the sovereignty of states, that similar situations be treated in the same way. This new approach is a significant step backward for parties seeking to enforce arbitral awards against foreign states' diplomatic missions in France.
International public policy
International public policy has probably been one of the most debated grounds for setting aside in recent years. In the previous edition, it was extensively discussed due to the notable decisions in the Belokon, MK Group and Republic of the Congo cases.32 The year in review decisions of the Paris Court of Appeal on this ground are in line with the previous case law.
The first decision of the Paris Court of Appeal confirms the proactive approach of French judges when it comes to illegal activities. In this case, the Paris Court of Appeal reopened proceedings in the presence of allegations of corruption to conduct a review on the merits of all factual and legal elements and to determine whether the enforcement of an award violated international public policy in a manifest, effective and concrete way.33 The case concerned a dispute between Alstom Transport SA, Alstom Network UK Ltd (collectively, Alstom) and a consulting company, Alexander Brothers Ltd, incorporated in Hong Kong, in relation to three contracts in the railway sector in China that were eventually awarded to Alstom. Pursuant to the consulting agreement, Alstom paid Alexander Brothers some instalments in relation to the first two contracts, but refused to pay outstanding amounts. Following the issuance of an award in 2016 ordering Alstom to pay the outstanding amounts, plus interest and costs, the latter filed a set-aside application on the ground of corruption before the Federal Court of Lausanne and an application against the exequatur before the Paris Court of Appeal.
The Court of Appeal stated that an arbitral award, which gives effect to a contract allowing influence peddling or bribery, violated international public policy and could therefore neither be recognised nor enforced. The Paris Court of Appeal considered that it is not bound either by the findings of an arbitral tribunal, or by the applicable law chosen by the parties, and had to ensure that the recognition and enforcement of an award does not enforce a contract tainted by corruption. The Court of Appeal listed the red flags that should be taken into account:
- a lack of or insufficient documentation;
- insufficient material and human resources compared to the amount of work allegedly performed;
- a disproportion between the services rendered and the remuneration;
- a percentage-based remuneration;
- defective or insincere accounts;
- the inexplicable nature of the award of a contract where the offer was not better-rated than those of the competitors; and
- the existence of corruption in a country or in certain industries, and allegations of corruption against a company.
To give the parties the opportunity to discuss these elements, the Paris Court of Appeal ordered the reopening of the proceedings and compelled the parties to produce the relevant evidence regarding the corruption issue.
Another decision of the Paris Court of Appeal on 20 December 2018 was issued in the set-aside proceedings between Garoubé and the state of Cameroon.34 The facts of the case leading to the dispute have already been explained above. In the context of the set-aside proceedings of the first and second partial awards, Cameroon alleged in particular that the arbitration proceedings were irregular due to the transfer of the seat of Garoubé from Cameroon to Belgium and the ensuing lack of legal personality.
The Paris Court of Appeal eventually dismissed all grounds submitted by Cameroon. Specifically, on the ground of violation of international public policy in relation to the second partial award, the Court of Appeal confirmed again its recent case law according to which a violation of international public policy has to be manifest, effective and concrete. The alleged fraud of the international public policy was not established in the case at hand as there was neither evidence of any false statements, nor documents or unfair practices aiming to deceive the arbitral tribunal.
These 2018 decisions confirm the evolution towards the use of manifest violations of international public policy that seems to be being adopted by French judges instead of the flagrant criterion used for the first time in 2004 in the Thalès case.
iii Investor–state disputes
France has ratified 115 bilateral investment treaties (BITs). Following the CJEU's Achmea decision,35 which ruled that intra-EU BITs were incompatible with EU law, representatives of the Member States, including France, signed a declaration36 on 15 January 2019 regarding the legal consequences of said judgment and on investment protection in the European Union providing, inter alia, for the termination of all BITs concluded to date.37
In 2018, the only pending proceedings against France (ICSID No. ARB/13/22) has been discontinued, and three cases have been initiated by French investors against Mauritius, Algeria and Italy.
Two cases are worth reporting in the context of set-aside proceedings related to the investment arbitration awards against the Bolivarian Republic of Venezuela.
The first case was submitted to the Paris Court of Appeal, which partially set aside the international investment award by considering that the arbitral tribunal had overstepped its ratione temporis jurisdiction by erroneously calculating compensation for expropriation.38 The dispute arose out of an investment in 58 gold mining concessions of Rusoro Mining Ltd, a Canadian company, and the nationalisation in 2011 of its gold mining activities by the government of Venezuela. The request for arbitration was submitted under the Canada–Venezuela BIT. The award rendered in Paris ordered Venezuela to pay damages for unlawful expropriation.
The set-aside application was brought by Venezuela before the Paris Court of Appeal. The first ground concerned the non-compliance with the amicable settlement mechanism, but was dismissed as it was related to admissibility and not jurisdiction, which is not a valid ground under Article 1520 CCP. As a second argument, Venezuela submitted that the arbitral tribunal wrongly upheld jurisdiction, as the damage was unrelated to the violation of the BIT and the compensation awarded for the expropriation in 2011 was based on the value at the time of the investment. In addition, the ratione temporis scope of the BIT excluded claims submitted three years after knowledge of a breach. Finally, Venezuela also contended that the arbitral tribunal failed to comply with the parties' agreement on the standard of compensation and the date of assessment of the damage.
The Paris Court of Appeal upheld the arbitral tribunal's finding on the merits that Venezuela was liable for the unlawful expropriation of Rusoro's investments. Nonetheless, it partially annulled the award's finding on damages, as the arbitral tribunal included regulations that were technically not admissible ratione temporis in the compensation's calculation.
On 13 February 2019, the French Court of Cassation rendered a decision in another investment case against Venezuela.39 The Paris Court of Appeal had partially annulled an award for lack of jurisdiction and upheld the exequatur of the award. The Court of Appeal had found that the arbitral tribunal lacked ratione materiae jurisdiction, but that its jurisdiction ratione personae had been established. While the first ground justified the partial annulment, the rejection of the second ground allowed for a partial exequatur according to the Court of Appeal.
The Court of Cassation quashed the decision of the Court of Appeal on the ground that 'the applicability of the arbitration agreement based on the bilateral investment treaty depends on the fulfilment of all the conditions required by this text on the nationality of the investor and the existence of an investment, so that the Court of Appeal could not partially set aside the award'. Therefore, in international investment cases, the jurisdiction criteria are considered cumulative and indivisible, thus prohibiting partial annulment.
iii OUTLOOK AND CONCLUSIONS
The year under review was marked by the creation of the CICAP, which is already hearing set-aside applications and appeals over exequatur decisions. It remains still to be seen how and to what extent the case law of the new Chamber will interact with the previous case law. The past year's case law analysed above confirms that the French courts apply a strict control when it comes to international public policy. The decisions analysed above, although reaffirming the limited grounds for set-aside applications, specify the duties of arbitrators and parties in relation to disclosure obligations. One of the year's most notable decisions was probably the Alstom case, where the Paris Court of Appeal ordered the parties to produce evidence on the issue of corruption, confirming the recent determination of French courts to review, in fact and in law, awards that are tainted with corruption and illegal behaviour.
1 Valentine Chessa and Marina Matousekova are partners, Antonio Musella is counsel and Nataliya Barysheva is an associate at CastaldiPartners.
2 Articles 1446–1448 (1, 2), 1449, 1452–1458, 1460, 1462, 1463 (2°), 1464 (3°), 1465–1470, 1472, 1479, 1481, 1482, 1484 (1, 2), 1485 (1, 2), 1486, 1502 (1, 2) and 1503 CCP.
3 Article 1465 CCP.
4 Article 1448 CCP.
5 Article 1519 CCP.
6 Article 1520 CCP.
7 Article 1502 1 and 2 CCP.
8 Law No. 2016-1547 of 18 November 2016 related to the 'modernisation of justice of the 21st century' provides a new definition of the arbitration clause at Article 2061 of the French Civil Code (free translation):
An arbitration agreement shall be accepted by the party against which it is invoked, unless that party succeeded to all rights and obligations of the party, which initially accepted it.
If one of the parties has not contracted in the course of its professional activity, the arbitration agreement cannot be invoked against that party.
9 Law No. 2016-1691 of 9 December 2016 relates to transparency, anticorruption and modernisation of economic life deals, among others, with the immunity of assets of foreign states in France, and introduces three new provisions in the French Code of Civil Enforcement Proceedings: Articles L111-1-1 to L111-1-3.
10 The International Arbitration Review, ninth edition, 2018, pp. 192–3.
11 Cass., 1 civ., 10 January 2018, No. 16-21.391.
12 CA Paris, Pole 1 – Ch. 1, 16 January 2018, No. 16/05996, The Republic of Iraq v. Fincantieri Cantieri Navali Italiani.
13 CA Paris, Pole 1 – Ch. 1, 18 December 2018, No. 16/24924.
14 The International Arbitration Review, ninth edition, 2018, pp. 193–5.
15 CA Paris, Pole 1 – Ch. 1, 27 March 2018, No. 16/09386.
16 CA Paris, Pole 1 – Ch. 1, 29 May 2018, No. 15/20168.
17 Cass., 1re civ., 19 December 2018, No. 16-18.349, J&P Avax v. Tecnimont.
18 CA Paris, 12 February 2009, No. 07/22164.
19 Cass., 1re civ., 4 November 2010, No. 09-12.716.
20 CA Reims, 2 November 2011, No. 10/02888.
21 Cass., 1re civ., 25 June 2014, No. 11-26.529.
22 CA Paris, 12 April 2016, No. 14/14884.
23 ECHR, 5 Section, 10 April, 2018, No. 58986/13, Projet Pilote Garoubé v. France.
24 CA Paris, 21 February 2012, No. 10/06953.
25 Cass., 1re civ., 13 March 2013, No. 12-16.944.
26 Article 1466 CCP.
27 Cass., 1re civ., 28 February 2018, No. 16-27.823.
28 Articles L111-1-1 to L111-1-3 of the French Code of Civil Enforcement Proceedings.
29 In force since 8 December 2016.
30 Cass., 1re civ., 10 January 2018, No. 16-22.494.
31 Cass., 1re civ., 13 May 2015, No. 13-17.751.
32 The International Arbitration Review, ninth edition, 2018, pp. 195–8.
33 CA Paris, Pole 1 – Ch. 1, 10 April 2018, No. 16/11182.
34 CA Paris, Pole 1 – Ch. 1, 20 December 2018, No. 16/25484.
35 CJEU, 6 March 2018, case No. C-284/16, Slovak Republic v. Achmea BV.
37 §5 of the Declaration.
38 CA Paris, Pole 1 – Ch. 1, 29 January 2019, No. 16/20822, Venezuela v. Rusoro Mining Ltd.
39 Cass., 1re civ., 13 February 2019, No. 17-25.851, Venezuela v. Serafin.