Eric Borysewicz and Karim Boulmelh
A. LEGISLATION AND RULES
Since the 2011 reform of the French law on arbitration, article 1459 of the Code of Civil Procedure provides that a dedicated judge called juge d’appui has jurisdiction for assisting the arbitral process when needed, in particular in case of a difficulty in the constitution of the arbitral tribunal.
A decree dated 20 December 2019 modified the procedural regime of actions brought before the juge d’appui without changing its role or powers.
Article 1460 now provides that proceedings before the juge d’appui are no longer “in the form of summary proceedings” (jugé comme en matière de référé) but follow the newly implemented expedited proceedings on the merits set forth in article 481-1 of the Code of Civil Procedure. The decision of the judge is no longer an order but a judgment. Such a judgment (as was the case previously) cannot be appealed except where the dismissal by the juge d’appui of the application for appointment of an arbitrator is made on the basis of the arbitration agreement being obviously null or inapplicable.
These changes are mainly procedural with a view to clarifying the regime of the actions before the juge d’appui. These changes, however, do not modify the role or powers of the juge d’appui.
For all arbitration proceedings seated in France and especially for ad hoc proceedings, the juge d’appui has proven to be a swift and efficient institution for solving all deadlock situations in the constitution of the arbitral tribunal, but also more generally, where the arbitral process is at risk, for example, recusation of an arbitrator or extension of a deadline for the award.
The juge d’appui also has jurisdiction when one of the parties is facing a risk of denial of justice, even if the seat of arbitration is not located in France.
Further to this reform, the juge d’appui guarantees more than ever that any attempt to block arbitral proceedings seated in France will be swiftly resolved.
A.2 Institutions, rules and infrastructure
The ICC has published its revised 2021 Arbitration Rules (“ICC Rules”). The ICC Rules entered into force on 1 January 2021 and will automatically apply to all proceedings initiated on or after that date. While this new version of the ICC Arbitration Rules does not introduce any major innovations, these modifications are nevertheless important and are aimed at improving the efficiency, transparency and flexibility of ICC arbitration proceedings.
The following changes introduced by the ICC Rules are worth noting in particular:
(i) The scope of application of the expedited procedures is extended. Expedited procedures will now automatically apply where the amount in dispute does not exceed USD 3 million if the arbitration agreement was concluded on or after 1 January 2021 (article 30 and appendix VI).
(ii) In exceptional circumstances, the court may ignore the agreement of the parties on the method of constituting the arbitral tribunal and appoint each of its members “to avoid a significant risk of unequal treatment and unfairness that may affect the validity of the award”(article 12(9)).
(iii) The joinder of an additional party after the confirmation or the appointment of the arbitrators may be authorized by the arbitral tribunal under several circumstances, if the additional party accepts the constitution of the arbitral tribunal and agrees to the terms of reference (article 7(5). Concerning the provisions related to the consolidation of arbitrations, the ICC Rules provide that two or more arbitration proceedings may be consolidated into a single arbitration where “all of the claims in the arbitrations are made under the same arbitration agreement or agreements” but also if they are “not made under the same arbitration agreement or agreements but the arbitrations are between the same parties, the disputes in the arbitrations arise in connection with the same legal relationship, and the [ICC] finds the arbitration agreements to be compatible” (article 10), i.e., claims arising out of different contracts may be consolidated pursuant to the conditions set by article 10(c).
(iv) Article 11(7) introduces a significant modification by imposing on the parties to disclose to the secretariat, the arbitral tribunal and the other parties the existence and identity of any third-party funding concerning the arbitration proceedings, under which the funder may have an economic interest in the outcome of the arbitration.
(v) The ICC Rules provide the possibility for the arbitral tribunal to hold virtual hearings, “by videoconference, telephone, or other appropriate means of communication” (article 26 (1)), this practice having proven to be successful during the pandemic. Moreover, submission of hard copies for all pleadings and other written communications by the parties is no longer the default rule. The new rules just mention that the submissions must be “sent,” thus allowing for fully electronic submissions. Article 4(b) concerning the request for arbitration and article 5(3) concerning the answer to the request have been amended to reflect this modification.
(vi) Article 22(2) of the ICC Rules confers on the arbitral tribunal a real duty to act, by taking any measures that it considers appropriate to ensure the efficient management of the arbitral proceedings, whereas previously the tribunal had only an ability to do so.
(vii) The parties may request that an additional award be rendered when the arbitral tribunal ruled infra petita in the final award regarding the claims made in the arbitral proceedings (Article 36(3)).
(viii) Concerning investment arbitration, the ICC Rules provide that unless the parties have otherwise specified, an arbitrator will not be of the same nationality as any of the parties to the arbitration (Article 13(6)). Moreover, the Rules exclude the application of the emergency arbitration provisions to treaty-based arbitrations (article 29(6)c.).
B.1 Application of the arbitration clause to nonsignatories: the everlasting opposing positions of the French and English courts in the Kabab-Ji v. Kout Food Group case
A decade after the famous Dallah case, the French and English courts have once again taken opposing positions on the issue of the existence and validity of an arbitration agreement and the consequences on nonsignatory third parties.
The facts of the case were simple. In 2001, Kabab-Ji Sal (“Kabab-Ji“), a Lebanese fast food and meal service company entered into a franchise development agreement with Al-Homaizi Foodstuff, a Kuwaiti company, for a 10-year operation of the Kabab-Ji brand in Kuwait. The parties agreed that each new franchise would give rise to a specific point-of-sale agreement. All the agreements between the parties provided for English law and ICC arbitration with a seat in Paris, France. In October 2004, Al-Homaizi Foodstuff informed Kabab-Ji of the restructuring of its group and the establishment of a new company, Koot Food Group (KFG). Kabab-Ji agreed on the restructuring if KFG’s creation and incorporation did not impact the terms and conditions of the existing agreements. The agreements expired in 2011 and in March 2015, Kabab-Ji initiated an ICC arbitration against KFG.
The issue was whether the arbitration clause was binding on KFG, which did not sign the underlying agreements. The arbitral tribunal ruled by a majority that under the law of the seat, i.e., French law, KFG, albeit nonsignatory, was a party to the arbitration agreements between Kabab-Ji and Al-Homaizi Foodstuff.
KFG filed an application to set aside the award before the Paris Court of Appeal, while Kabab-Ji in parallel attempted to enforce the award in England. However, the English courts refused to enforce the award. In application with the conflicts of law method, the English courts held that: (i) in the absence of an express choice of law for the arbitration agreement, the substantive law, i.e., English law, applied to the arbitration agreement as an implied choice; (ii) under English law, the arbitration clause could not bind KFG mainly because the agreements provided for a non-oral modification clause and KFG has not accepted in writing to be bound by the arbitration agreement.
Conversely, the Paris Court of Appeal refused to set aside the award. In applying the substantive rule of the validity of the arbitration agreement, the Paris court held that an arbitration agreement may be extended to a non-signatory if the latter has been involved in the performance of the main contract and its activities give rise to a presumption of knowledge and acceptance of the arbitration clause.
The outcome is unsurprising for two reasons. First, the substantive rule of the validity of the arbitration agreement means that the arbitration agreement is legally independent of the main contract referring to it, and its existence and effectiveness are to be assessed, subject to the mandatory rules of French law and international public policy, on the basis of the parties’ common intention, there being no need to refer to any national law. Second, the rule applies every time the French courts are to rule on the validity of an arbitration agreement, regardless of the seat of the arbitration or any rule on the conflict of law.
The difference in the positions of the French and English courts has a considerable practical implication of the award being confirmed in France, and Kebab-Ji being unable to seek its enforcement in England, the place of its debtor’s assets. If there is one takeaway from this case, it is the critical importance of stipulating the law applicable to the arbitration agreement so that this question is not ultimately determined merely on the basis of the seat and the law applicable to the underlying contract.
B.2 Inapplicability of the kompetenz-kompetenz principle to a consumer contract in the PWC case
The arbitral tribunal’s power to determine, in the first place, its own jurisdiction or the so-called komeptenz-komepetenz principle has been, until recently, applied strictly by the French Cour de Cassation, even when consumers’ interests were at stake. The court, however, revised its position in the PWC case.
The Spanish subsidiary of the PwC law firm advised a French heir on the transactions regarding her father’s estate in Spain. Unsatisfied with the advice, she brought a liability claim against the law firm before the French courts. The law firm challenged the jurisdiction of French courts on the basis of the arbitration agreement. Against all expectations, the Versailles Court of Appeal dismissed the jurisdiction plea and the Cour de Cassation upheld the trial court’s findings. The French Supreme Court explicitly stated that “the procedural priority set forth in article 1448 of the Code of Civil Procedure,” i.e., the kompetenez-kompetenz, may not result in making the exercise of the rights conferred on the consumer by EU law impossible or excessively difficult.
Previously, in the Jaguar case, where a contract between a French consumer and an English car manufacturer was in dispute, the Supreme Court considered the question of the validity of the arbitration agreement in an international contract and, particularly, its consistency with the international public policy was a matter of priority for the arbitrator to decide. This was confirmed in the Rado case.
In the PwC case, the Cour de cassation shifted its position in light of the EU law. The rationale is as follows: (i) the EU law lays down mandatory consumer protection standards; (ii) national courts have a duty to safeguard the effectiveness of the consumer protection, which implies ensuring that their rights are not subject to conditions, in particular delays or costs likely to adversely affect the exercise of the consumers’ guaranteed rights; (iii) the application of the kompetenz-kompetenz principle requires the consumer to refer the validity of the arbitration clause to an arbitral tribunal before this issue can be scrutinized by national courts, which increases the length and the cost of the proceedings, and, therefore, must be ruled out in an international consumer contract. A consumer who intends to benefit from consumer protection provisions will be entitled, therefore, to bring claims relating to the validity of the arbitration agreement directly before national courts, without any need to first refer the question to an arbitral tribunal.
As to the validity of the arbitration clause, the Supreme Court also upheld the decision of the trial judges to set aside the arbitration agreement because it was “standardized” and “was not individually negotiated.” The grounds and the scope of this decision are widely questioned by the authors.
B.3 An arbitral tribunal, using a body of evidence inspired by the US Foreign Corrupt Practices Act (FCPA) red flags method revealing corruption, is considered as having ruled pursuant to French applicable law
In a decision dated 15 September 2020, the Paris Court of Appeal refused to set aside an ICC arbitral award rendered in Paris on 26 March 2019, in a case opposing Airbus Helicopters (“Airbus“), a French company specializing in the construction of civil and military helicopters, to Samwell International Holdings Limited (“Samwell“), a Hong Kong-headquartered company specializing in consultancy and support for the trading of helicopters in China.
Airbus and Samwell entered into two consulting contracts to assist Airbus with the sale of helicopters to Chinese companies. The contracts provided for French law as the applicable law and Paris as the seat of the arbitration. Further to Airbus’ refusal to pay certain invoices issued by Samwell for its consultancy services, Samwell commenced arbitration proceedings against Airbus. In its award, dated 26 March 2019, the arbitral tribunal found that there exists a body of evidence of corruption, leading to the conclusion that the performance of the contracts violated international public order. In ruling so, the arbitral tribunal, using the US FCPA red flags method, dismissed Samwell’s claim for payment and ordered payment of damages to Airbus. Samwell then moved to seek the setting aside of the arbitral award before the Court of Appeal of Paris on the grounds that the arbitral tribunal would have violated its mandate (article 1520, 3° of the French Code of Civil Procedure) by referring to the US FCPA and applying US law, whereas it should have settled the dispute by applying French law exclusively.
The Paris Court of Appeal ruled that by revealing a corrupt practice, by examining a body of serious, accurate and consistent evidence of corruption, even if inspired by the FCPA red flags method, the arbitral tribunal ruled in compliance with its mandate and in compliance with French law.
B.4 Case law construction in the matter of indices of corruption justifying the setting aside of an international arbitral award
- In another recent case, the Paris Court of Appeal set aside a partial award and a final award rendered in a dispute that opposed the French Société orléanaise d’électricité et de chauffage électrique (SORELEC) and the state of Libya. In 1979, SORELEC and the entity corresponding to the Ministry of Education of the state of Libya entered into an important construction contract. Due to performance difficulties and the non-performance by the Libyan state of two different memorandums of understanding, concluded in order to settle the dispute between them, SORELEC initiated arbitration proceedings under the aegis of the ICC on 12 March 2013, pursuant to the arbitration clause contained in the France-Libya bilateral investment treaty (BIT). During the arbitration proceedings, SORELEC requested on 22 August 2016 the approval of a final Memorandum of Understanding and Arrangement relating to the Arbitration Procedure (MoU), concluded by the parties on 27 and 29 March 2016 between SORELEC and the Libyan state, represented in these negotiations by Mr. Omran in his position as minister of justice of the provisional government of Libya emanating from the Libyan parliament. On 20 December 2017, the arbitral tribunal rendered a partial award in which it held that the tribunal has jurisdiction to settle the dispute between the parties, found the MoU concluded between them to be valid, approved it and ordered the Libyan state to pay SORELEC the sum of approximately USD 275 million within 45 days of the notification of the award. This partial award also provided, in accordance with the MoU, that in the event of nonpayment within the stipulated period, the arbitral tribunal would render a final award ordering Libya to pay SORELEC the sum of approximately USD 540 million. The Libyan state filed an application to set aside the partial award on 26 January 2018. Following the Libyan state’s failure to pay, the arbitral tribunal issued a final award dated 10 April 2018, ordering it to pay SORELEC the sum of approximately USD 540 million. The Libyan state also filed an application to set aside this final award on 16 April 2018.
The state of Libya argued that the partial award violated the international public order by giving effect to an agreement obtained following corrupt practices. Despite the fact that Libya never raised any claim based on an issue of corruption during the arbitration proceedings, nor before the arbitral tribunal issued the partial award or rendered the final award, the Paris Court of Appeal decided to examine the issue of corruption on the basis that:
Where it is alleged that an award gives effect to an agreement of the parties that is tainted by corruption, it is for the judge who is to annul the award, when seized of an action based on article 1520, 5° of the Code of Civil Procedure, to investigate in law and in fact all the elements that make it possible to decide on the alleged unlawfulness of this agreement and to assess if the recognition or enforcement of the award violates international public order in a manifest, effective and concrete manner.
The court of appeal held that:
The respect of the French conception of international public order implies that the State judge in charge of the control can assess the ground of violation of international public order even if it was not invoked before the arbitrators who did not include it in the debates
Based on this principle, the court of appeal went on to examine closely whether there exists a body of serious, consistent and accurate evidence of corruption practice, as follows:
(i) The French court first considered the political situation in Libya and found that “the signature of the MoU on March 27 and 29, 2016 occurred during a chaotic and uncertain period […] which was particularly propitious to the corruption of public officials in a country where corruption is endemic.”
(ii) The court then examined the behavior of Mr. Omran, the Libyan minister of justice, who not only failed to comply with the internal Libyan procedure to conclude this type of MoU, by voluntarily not requesting the advisory opinion of the Litigation Department of the Libyan Ministry of Justice, but also attempted to dissimulate his action. The Court of Appeal of Paris thus found that this “constituted a serious and specific indication of collusion between SORELEC and the Minister of Justice who signed this agreement in the exercise of his official duties, which could result in a personal benefit for him.” Moreover, the court held that the minister acted similarly in a dispute that opposed the Libyan state and Mr. Ghenia, leading to the retraction of an award by consent rendered in UNCITRAL arbitration proceedings, and considered that “the similarity and concomitance of the facts presented, particularly the similar conditions under which the Minister of Justice signed the disputed agreements corroborated the suspicion of corruption on his part.”
(iii) The French court also considered that:
The differences between their initial positions and the financial issues at hand for the Libyan State, the speed with which the parties have been allegedly within a week, after having met a single day at the best, to agree on the terms of the MoU such as the lack of any evidence attesting of the reality of these negotiations, constitute additional serious and accurate indices, that this MoU covers the corruption of a public official without which it must not have been concluded.
Therefore, the court of appeal concluded that the above-mentioned elements constituted a body of serious, accurate and consistent evidence of corruption and set aside the arbitral award for violation of the French concept of international public order.
This case is a good example of how closely the Court of Appeal of Paris scrutinizes and examines allegations of corruption practice through the methodology of the body of serious, accurate and consistent evidence.
 Decree No. 2019-1419 of 20 December 2019 on the accelerated procedure on the merits before state courts enforced as from 1 January 2021.
 Article 1505 of the Code of Civil Procedure.
 Paris Court of Appeal, 23 June 2020, No. 17/22943;  EWCA Civ 6.
 Paris Court of Appeal, 17 February 2011, Ministry of Religious Affairs of Pakistan v. Dallah, No. 09/28533; the UK Supreme Court, 3 November 2010,  UKSC 46.
 Cass. Civ. 1, 20 December 1993, Dalico, No. 91-16.828.
 Cass, Civ. 1, 30 September 2020, No. 18-19.241.
 Articles 1448 and 1506 of the French Code of Civil Procedure.
 Cass. Civ. 1, 21 May 1997, No. 95-11.429.
 Cass. Civ. 1, 30 March 2004, No. 02-12.259.
 Paris Court of Appeal (International Commercial Chamber), 15 September 2020, No. 19/09058.
 Paris Court of Appeal, 17 November 2020, No. 18/02568 and No. 18/07347.