The Status of Vacated Awards in France: the Cour de Cassation Decision in Putrabali

Abstract

ON 29 JUNE 2007, the French Cour de cassation, the highest court in France, rendered a landmark decision in the Putrabali case.1 This decision is as significant in our view as the decision rendered in 1963 in the Gosset case, where the Cour de cassation admitted for the first time the principle of the separability of the arbitration agreement.2 Quite logically, the Putrabali decision has attracted a number of commentaries that are already published or will be published soon.3 The reason for this importance may be attributed to the fact that it was the first time that the Cour de cassation had to make a decision on the enforcement in France of awards set aside in the country of origin since the famous Hilmarton decisions. In fact, the reasons for this importance are more fundamental. Rather than merely endorsing the solution reached by the Paris Court of Appeal, and subsequently by the Cour de cassation, in the Hilmarton case and the subsequent cases, the Cour de cassation provided a firm theoretical foundation for this solution. The Cour de cassation, following a suggestion in French doctrine, has confirmed the existence of an arbitral legal order, distinct from national legal orders, by affirming that the award was ‘not anchored in any national legal system’. It also characterised the international arbitral award as an ‘international judicial decision’. This article will focus essentially on this second aspect by describing the Cour de cassation decision, analysing its legal foundations, and assessing its practical consequences. Following a brief overview of the facts of the underlying dispute in Putrabali , and of the decision of the French Court of Appeal, we will summarise the arguments put forward before the Cour de cassation and the solution given by that court. ### (a) Facts of the Putrabali Dispute and Decision of the Paris Court of Appeal The underlying dispute in the …