French International Arbitration Law Reports: 2010
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ISBN:
978-1-937518-91-2
Page Count:
182 pages
Published:
February, 2016
Introduction
The case law of 2010 comes at the eve of a major event. Indeed, a few
days after the end of the year, on 13 January 2011, French law of
domestic and international arbitration was overhauled by a decree which
replaced the applicable provisions in the Code of Civil Procedure.
Yet it would be wrong to believe that the case law of the year 2010 is
obsolete, firstly because many of the solutions of future law can only be
as a result of the continuation of the state of the previous law; secondly,
due to the principles of transitional law, the pre-2011 regime will be
relied upon for many years, including for all arbitration agreements
concluded before the entry into force of the new text, but enforced after.
2010 is thus the most up to date of the pre-2011 law. For this reason
alone, it deserves to be explored.
However, many other reasons justify that the case law of 2010 be the
subject of an exhaustive survey in the fourth volume of these French
International Arbitration Law Reports. Among the many decisions in
2010, the major advances in the case law can be grouped into three
categories: the first concerns the arbitration agreement; the second
concerns the arbitrator; and the third concerns procedure.
First, regarding the arbitration agreement, in 2010, French case law
again stated that it was a mobile legal object, which circulates with the
main contract, and even more generally with the object of the legal
action. In two judgments reproduced in this book, the Cour de Cassation
stated that in a chain of contracts related to property, the arbitration
clause is transmitted automatically to subsequent purchasers of the
property, which was in this case a cow (the Blonde génétique case)
because it is an accessory of the right of action, which itself is an
accessory to a transmitted substantive law passed without any type of
homogeneous or heterogeneous incident (the Refcom case). The
arbitration clause is therefore viscerally attached to the rights passed on,
beyond just the contract, and this is also what justifies its autonomy.
Second, regarding the arbitrator, similar to the arbitration agreement,
in 2010 French case law has both stabilized and extended the positive
law. The arbitrator, as we know, is invested by a contract, the receptum
arbitrii (enshrined in the case law of 2008), in which one can find the
arbitrator’s rights and obligations, including its duty to reveal something
that could jeopardize his independence or his impartiality. In 2010, the
courts had to deal with both the receptum arbitrii and the independence
of the arbitrator. Regarding the receptum arbitrii, the Paris Court of
Appeal reversed a judgment of the High Court, in a judgment which was
also repealed in 2013, stating that the dispute regarding the formation of
the receptum arbitrii raised issues regarding the jurisdiction of the
arbitrator himself, and not a judge (the Elf Neftegaz case). It also stated
that in an international arbitration, an arbitrator had not committed any
fault despite an unusually long procedure, and that it was not held to the
six-month period provided for domestic arbitration, although the lex
processualis is present in French law (the CNC-CEC case).
If the arbitrator managed to escape with respect to the receptum arbitrii,
this is not the case with respect to independence, where an arbitrator was
criticized for having concealed his ties, not with a party but with a party’s
counsel (the Consorts Allaire case). Picking up from an old but often
forgotten case (Paris, 12 Jan. 1999, the Milan Presse SA Case), this
judgment is a milestone in terms of an arbitrator’s duty of disclosure, since
it now extends to past links with counsel. The practice has since also
followed this direction, reinforcing the movement for transparency with
respect to the relationships of the players in an arbitration.
Finally, regarding procedure, 2010 saw changes in arbitral proceedings
as well as in post-arbitral proceedings, that is to say in terms of
annulment proceedings. The arbitration procedure was first marked by a
strengthening of the application of the adversarial principle. Two
emblematic cases overturned awards rendered by experienced arbitrators.
In the first case, the award was rejected because it was based on loss of
opportunity, not lost profit as claimed by the parties (the Caribbean
Nickel Case). In the second case, the award was based on articles of the
Egyptian Civil Code that had not been discussed by the parties, even
though Egyptian law was applicable (the Malincorp Case). These
decisions show greater salience of the appeal judge on the enforcement
of the adversarial principle.
So we will not be surprised, then, that, in the post-arbitration phase,
the Cour de Cassation has also asserted a broad conception of its power
on the issue of the jurisdiction of the arbitral tribunal. The Abela Case of
6 October 2010 states clearly that the annulment judge must seek “all the
legal and factual elements enabling it to interpret the scope of the
arbitration clause and to conclude on the arbitrators’ compliance with
their mission.” This formula was taken from a very old case; (Cass. 1st
civ., Jan. 6, 1987, the Plateau des Pyramides Case) a case was believed
to be buried in the sand, but which resurfaced in 2010. This underlines
that, with respect to the jurisdiction or lack thereof of the arbitral
tribunal, the judge intends to exercise broad authority, which is not the
case with respect to other heads of annulment for which the French judge
distances himself, even holding the arbitrator at the same level as a
judge, which is in line with the French autonomous conception of
international arbitration.
Table of Cases
Inversiones Errazuriz Limitada-SA v Kreditanstalt fur Wiederaufbau
Merial v Klocke Verpackungs - Service GMBH
Aléa Europe Limited v. SA ICD - Compagnie Internationale
de caution pour le développement
The French Federation of Studies and Submarine Sports v
Cutner & Associates P.C
S.N.P Boat Service SA v Mr. Uwe GLIEN
Lietuva v Macifilia, Giraud Rhône Alpes, Logistique des Transports
Graveleau, Helvétia, Assurances générales de France, Children
Worldwide Fashion
Mr. Yves SIGNORI v Comercial Salgar SA
Malicorp v the Arab Republic of Egypt, the Minister of
Transportation, the Minister of Civil Aviation, the Prosecutor
General to the Paris Court of Appeal
Top Bagage International v Wistar Enterprise Limited
Inforad Limited v Tes Electronic Solutions
Abela I
Abela II
Mr. Jean TIENTCHEU v SA Chanas Assurances
Somoclest bâtiment v DV Construction
Prodim v Spouses X
Dyncorp Aerospace Technology (United States) v International
Trading and Industrial Investment Company (Qatar)
Levantina de Hidraulica y Motores (Lehimosa) v MM. X
Tecnimont v J&P Avax
Elf Aquitaine, Total v Mr. Jean-Pierre MATTEI,
Mr. Lai KAMARA, Mr. Andreas REINER
Refcomp S.p.A, v Axa Corporate
CNCA-CEC, Mr. Jacques CHARASSE v Mr. Jacques ROSSI,
Mr. Xavier GREFFE, Mr. Xavier BONASSIES
Republic of Equitorial Guinee v SA. Commercial Bank Guinea
Ecuatorial
Botas Petroleum Pipeline Corporation v Societe Tepe Insaat
Sanayii AS
About the Editors
Thomas Clay is Professor in International Arbitration Law in Versailles
University, Director of its LLM in International Arbitration in
collaboration with the International Chamber of Commerce (ICC), the only
French-language program in international arbitration. He's also Vice-
President of the University, managing partner of Clay Arbitration Law
Firm, and former Dean of the Law School. Member of the French
Arbitration Committee and of the International Arbitration Institute and
other institutions, Professor Clay is the author of various books and articles
on arbitration, including "The Arbitrator", a treatise on the duties and
obligations of arbitrators, and "Code de" arbitrage commenté”, a
restatement of the French law. He writes a regular column, Arbitration
Law, in the weekly legal journal Dalloz. He also participates in numerous
conferences throughout the world on international arbitration and has an
extensive practice in arbitration, as arbitrator or counsel, in French,
Spanish, English and Italian, collaborating with the ICC, other French
institutions, the Milan Arbitration Court, and in Africa and South America.
Professor Clay is also a member of the Jurisdiction of Professional Soccer
League and Arbitrator in the French Sport Arbitration Chamber. He was
appointed by France to serve as co-arbitrator in the first ICSID Arbitration
against that country.
Philippe Pinsolle is the Managing Partner of the Paris Office at Quinn
Emanuel Urquhart & Sullivan, and specializes in international arbitration.
He has been involved, as counsel or arbitrator, in more than two hundred
and fifty international arbitrations, both institutional (ICC, ICSID, LCIA,
SCC, AFA, Swiss Rules, etc.) and ad hoc, concerning such activities as
investment, oil and gas, energy, telecom or the defense industry. Mr.
Pinsolle is a member of the Paris Bar and of the Bar of England & Wales
(Gray's Inn). He is a lecturer on international arbitration at the Universities
of Aix-Marseille III, Versailles-St Quentin and Paris 12. Mr. Pinsolle is the
former President of the International Arbitration commission of the Union
Internationale des Avocats (UIA) and a cofounder of the Young
Arbitration Practitioners (YAP). He is the author of numerous articles and
case-notes on international arbitration and holds a J.D. degree from the
University Pantheon-Assas (Paris II), a M.Jur. from Oxford University,
Hertford College, and an MBA degree from Essec.
Thomas Voisin is a Partner in the Paris office of Quinn Emanuel Urquhart
& Sullivan. He has represented clients in a number of international
arbitrations, both ad hoc (including under the UNCITRAL Rules) and
under the rules of major arbitration centers (ICC, ICSID, LCIA, SCC,
AFA, etc.), with particular focus on investment, energy, and commercial
disputes. His experience includes international arbitrations in the oil &
gas, power, transportation, mining, aviation and chemical sectors. He
graduated from the University Pantheon-Assas (Paris II) and holds an
M.Jur. from Oxford University.
Suhaib Al-Ali is an Associate in the Paris office of Quinn Emanuel
Urquhart & Sullivan. He has intervened on behalf of both States and
Investors before ICSID and ad hoc tribunals, as well as commercial
Claimants and Respondents before the ICC, LCIA, ECA, and the Franco-
German Chamber of Commerce and Industry. He has degrees from
King's College London, Paris-I Pantheon-Sorbonne, and the University of
Chicago. He is a member of the New York Bar.
Author/Editor Detail:
About the Editors
Thomas Clay is Professor in International Arbitration Law in Versailles
University, Director of its LLM in International Arbitration in
collaboration with the International Chamber of Commerce (ICC), the only
French-language program in international arbitration. He's also Vice-
President of the University, managing partner of Clay Arbitration Law
Firm, and former Dean of the Law School. Member of the French
Arbitration Committee and of the International Arbitration Institute and
other institutions, Professor Clay is the author of various books and articles
on arbitration, including "The Arbitrator", a treatise on the duties and
obligations of arbitrators, and "Code de" arbitrage commenté”, a
restatement of the French law. He writes a regular column, Arbitration
Law, in the weekly legal journal Dalloz. He also participates in numerous
conferences throughout the world on international arbitration and has an
extensive practice in arbitration, as arbitrator or counsel, in French,
Spanish, English and Italian, collaborating with the ICC, other French
institutions, the Milan Arbitration Court, and in Africa and South America.
Professor Clay is also a member of the Jurisdiction of Professional Soccer
League and Arbitrator in the French Sport Arbitration Chamber. He was
appointed by France to serve as co-arbitrator in the first ICSID Arbitration
against that country.
Philippe Pinsolle is the Managing Partner of the Paris Office at Quinn
Emanuel Urquhart & Sullivan, and specializes in international arbitration.
He has been involved, as counsel or arbitrator, in more than two hundred
and fifty international arbitrations, both institutional (ICC, ICSID, LCIA,
SCC, AFA, Swiss Rules, etc.) and ad hoc, concerning such activities as
investment, oil and gas, energy, telecom or the defense industry. Mr.
Pinsolle is a member of the Paris Bar and of the Bar of England & Wales
(Gray's Inn). He is a lecturer on international arbitration at the Universities
of Aix-Marseille III, Versailles-St Quentin and Paris 12. Mr. Pinsolle is the
former President of the International Arbitration commission of the Union
Internationale des Avocats (UIA) and a cofounder of the Young
Arbitration Practitioners (YAP). He is the author of numerous articles and
case-notes on international arbitration and holds a J.D. degree from the
University Pantheon-Assas (Paris II), a M.Jur. from Oxford University,
Hertford College, and an MBA degree from Essec.
Thomas Voisin is a Partner in the Paris office of Quinn Emanuel Urquhart
& Sullivan. He has represented clients in a number of international
arbitrations, both ad hoc (including under the UNCITRAL Rules) and
under the rules of major arbitration centers (ICC, ICSID, LCIA, SCC,
AFA, etc.), with particular focus on investment, energy, and commercial
disputes. His experience includes international arbitrations in the oil &
gas, power, transportation, mining, aviation and chemical sectors. He
graduated from the University Pantheon-Assas (Paris II) and holds an
M.Jur. from Oxford University.
Suhaib Al-Ali is an Associate in the Paris office of Quinn Emanuel
Urquhart & Sullivan. He has intervened on behalf of both States and
Investors before ICSID and ad hoc tribunals, as well as commercial
Claimants and Respondents before the ICC, LCIA, ECA, and the Franco-
German Chamber of Commerce and Industry. He has degrees from
King's College London, Paris-I Pantheon-Sorbonne, and the University of
Chicago. He is a member of the New York Bar.
Table of Contents:
Table of Cases
Inversiones Errazuriz Limitada-SA v Kreditanstalt fur Wiederaufbau
Merial v Klocke Verpackungs - Service GMBH
Aléa Europe Limited v. SA ICD - Compagnie Internationale
de caution pour le développement
The French Federation of Studies and Submarine Sports v
Cutner & Associates P.C
S.N.P Boat Service SA v Mr. Uwe GLIEN
Lietuva v Macifilia, Giraud Rhône Alpes, Logistique des Transports
Graveleau, Helvétia, Assurances générales de France, Children
Worldwide Fashion
Mr. Yves SIGNORI v Comercial Salgar SA
Malicorp v the Arab Republic of Egypt, the Minister of
Transportation, the Minister of Civil Aviation, the Prosecutor
General to the Paris Court of Appeal
Top Bagage International v Wistar Enterprise Limited
Inforad Limited v Tes Electronic Solutions
Abela I
Abela II
Mr. Jean TIENTCHEU v SA Chanas Assurances
Somoclest bâtiment v DV Construction
Prodim v Spouses X
Dyncorp Aerospace Technology (United States) v International
Trading and Industrial Investment Company (Qatar)
Levantina de Hidraulica y Motores (Lehimosa) v MM. X
Tecnimont v J&P Avax
Elf Aquitaine, Total v Mr. Jean-Pierre MATTEI,
Mr. Lai KAMARA, Mr. Andreas REINER
Refcomp S.p.A, v Axa Corporate
CNCA-CEC, Mr. Jacques CHARASSE v Mr. Jacques ROSSI,
Mr. Xavier GREFFE, Mr. Xavier BONASSIES
Republic of Equitorial Guinee v SA. Commercial Bank Guinea
Ecuatorial
Botas Petroleum Pipeline Corporation v Societe Tepe Insaat
Sanayii AS