The Court of Appeal of Paris and lack of arbitral jurisdiction A 1980-1986 Digest

Abstract

in 1980, the French law of arbitration was comprehensively reformed. A year later, a further decree created special rules, characterised by great tolerance for party autonomy, that apply to arbitrations containing an international element (typically a divergence of nationality of the litigants).1 As a result of these reforms, which were incorporated into the New Code of Civil Procedure (or NCPC as it is abbreviated in French), awards rendered ‘in the absence of an arbitration agreement or on the basis of a void or expired agreement’ may be nullified by application to the Court of Appeal at the place of arbitration. (The arbitral tribunal is perceived as functioning in the place of a court of first instance; in consequence, challenges are directly submitted to the appellate jurisdiction). This criterion is identified in the same terms with respect to domestic (NCPC Article 1481(1)) as well as international (1502(1)) awards. It is accordingly of interest to international practitioners to examine the practice of French Courts of Appeal in all cases, domestic or international, involving a challenge to the jurisdiction of arbitrators. Since almost all international arbitrations in France take place in Paris, the most important court from the standpoint of the international lawyer is the Court of Appeal of Paris. An examination of its treatment of challenges to arbitral jurisdiction is especially relevant to International Chamber of Commerce practitioners, since about one-third of ICC awards are rendered in Paris.2 In addition, the highest court (the Cour de cassation ) does not review findings of fact. Jurisdictional issues quite often turn on questions of fact (such as the sufficiency of given types of documents as expressions of an intent to refer to arbitration). Therefore the practitioner will obtain more concrete guidance from the many decisions of the Paris Court – most of which …