Payment of the Advance on Costs, Procedural Loyalty and Access to Justice. Note on French Cour de Cassation Decision of 9 February 2022

Abstract

Access to arbitral justice can be obstructed by the refusal of the respondent to pay its share of the advance on costs. Such default can be the result of dilatory tactics or of the respondent’s impecuniosity. Likewise, a claimant that has consented to arbitration may later be unable to resort to arbitration for lack of financial means. In these circumstances, how can the arbitration agreement be enforced? French courts have long attempted to guarantee effective access to justice (whether arbitral or court justice) in the presence of an arbitration agreement and to balance the need to enforce the arbitration agreement with the parties’ right to have their day in court. The decision rendered by the French Cour de Cassation on 9 February 2022 relied on “the principle of procedural loyalty governing parties to an arbitration agreement” to hold that a party that had caused the withdrawal of the arbitration proceedings by failing to pay its share of the advance on costs, was not entitled to rely on the arbitration agreement to object to the jurisdiction of the French courts. Although this solution is not new, it has divided the doctrine in France.