“L’affaire Tapie”, a Review From an Arbitration Perspective

Abstract

This paper discusses the arbitration law issues raised in the dispute that opposed French businessman Bernard Tapie to its former bank (that the French state has since bailed-out) following the sale of the German company Adidas in 1992. The dispute was eventually decided by an arbitral tribunal which ordered the bank to pay to Mr Tapie over € 400 million as damages. The case was brought before the French courts, and the question that arose was whether the bank was entitled to request a judicial review of the award based on the alleged fraud committed by Mr Tapie and/or his counsel and one of the arbitrators, to favour Mr Tapie in the arbitration. The decisive criterion was the domestic or international nature of the arbitration, as a review would only be possible if the arbitration was domestic. The Paris Court of Appeal (decision of 17 February 2015) and the Cour de cassation (decision of 30 June 2016) ruled in favour of the bank, stating that the arbitration was of domestic nature and the review of the arbitral award admissible. The French judge also held that fraud was indeed constituted, and withdrew the arbitral award. This case sheds light on the French courts’ narrower interpretation of the internationality of a dispute and offers a good illustration of the possibility for a judge entrusted with the judicial review of an arbitral award to consider elements originating from pending criminal proceedings.