Fraud in International Arbitration: Two Recent French Decisions - WAMR 1993 Vol. 4, No. 11
Originially from: World Arbitration and Mediation Review (WAMR)
Fraud in International Arbitration: Two Recent French Decisions
By Christine Lecuyer-Thieffry, Thieffry & Associes, Paris.
Two fairly recent decisions allow us to summarize how arbitral awards based
on fraud can be challenged under French law.
The Fougerolle Case: “Recours en Revision”
According to the decision of the Cour de Cassation (the French Supreme Court
in civil and commercial matters) in Fougerolle v. Procofrance (Civ. lére, 25 May
1992), in the presence of fraud, a “recours en revision” (petition for review) may
now be allowed against international arbitration decisions rendered in France. The
decision was based on a general principle of the law of fraud — “fraus omnia
corrumpit” — and it is rare for the Supreme Court to rely on such general
principles in order to create
a procedure not otherwise provided for by statute.
A recours en revision is best described as a procedure that allows a court to
review and revise the original judgement after all other legal remedies, including
appeal to the Supreme Court, have been exhausted. Until now, a recours en
revision has been available only in limited situations: to challenge and obtain a reexamination
on the merits of a final decision rendered by a court (Article 593
New Code of Civil Procedure) or an arbitral tribunal (Article 1491 of the New
Code of Civil Procedure) which was reached in the presence of fraud or false
evidence. The re-examination of the merits of the case is carried out before the
competent appellate court.
With regard to arbitration, however, several previous decisions of the Court of
Appeal had confirmed that the recours en revision expressly provided for with
regard to domestic awards did not apply to international arbitration. To our
knowledge, however, the issue had never been raised to the level of the Cour de
Fraud in Withholding of Evidence
A summary of the Fougerolle case is as follows: the plain tiff protested against
the decision of the arbitrators to reject its claim for review of the award. The
award had been rendered by the arbitrators in the absence of a document, which
the plaintiff alleged was fraudulently withheld by the defendant. The arbitrators’