Paris Court Research Articles

Latest Twist in the Komstroy Saga

This case note provides an analysis of the Paris Court of Appeal’s (the Court of Appeal) second annulment (the Second Annulment), dated 10 January 2023, of an arbitration award rendered in favour of Energoalliance ltd (Energoalliance) under the Energy Charter Treaty (ECT) in 2013. The case note focuses on the interpretation of the term “Investment”. The Second Annulment follows a first Court of Appeal annulment that was set aside by the French Supreme Court (Supreme Court) due to its incorrect interpretation of the term “Investment”. The Second Annulment, which applied a preliminary ruling of the Court of Justice of the European Union (CJEU), is instructive with regard to the factual circumstances which courts in EU Member States (Member States) will consider in determining whether a debt can qualify as an “Investment”. More specifically, the Second Annulment addresses the qualities which define an asset as “commercial” and, therefore, preclude it from being an “Investment”. Some ambiguity, however, remains in the Second Annulment with regard to the term “commercial” due, in the opinion of the authors, to the inconsistency between certain findings in the Supreme Court’s annulment of the first Court of Appeal annulment, and the CJEU’s preliminary ruling.

Latest Twist in the Komstroy Saga The Definition of “Investment” under the ECT as Interpreted by the Paris Court of Appeal in Its Second Annulment Decision

This case note provides an analysis of the Paris Court of Appeal’s (the Court of Appeal) second annulment (the Second Annulment), dated 10 January 2023, of an arbitration award rendered in favour of Energoalliance ltd (Energoalliance) under the Energy Charter Treaty (ect) in 2013. The case note focuses on the interpretation of the term “Investment”. The Second Annulment follows a first Court of Appeal annulment that was set aside by the French Supreme Court (Supreme Court) due to its incorrect interpretation of the term “Investment”. The Second Annulment, which applied a preliminary ruling of the Court of Justice of the European Union (cjeu), is instructive with regard to the factual circumstances which courts in EU Member States (Member States) will consider in determining whether a debt can qualify as an “Investment”. More specifically, the Second Annulment addresses the qualities which define an asset as “commercial” and, therefore, preclude it from being an “Investment”. Some ambiguity, however, remains in the Second Annulment with regard to the term “commercial” due, in the opinion of the authors, to the inconsistency between certain findings in the Supreme Court’s annulment of the first Court of Appeal annulment, and the cjeu’s preliminary ruling.

To Disclose or Not to Disclose: Lessons from a Eulogy’ Observations from Port Autonome de Douala v. Douala International Terminal (Paris Court of Appeal No. RG 20/18330)

In January 2023, the Paris Court of Appeal set aside a partial award issued in an ICC arbitration on the basis that an eulogy delivered by the presiding arbitrator (‘President’) to counsel in the arbitration gave rise to reasonable doubts as to the President’s independence and impartiality. Arbitration awards, setting aside

ROOTING THE CONCEPT OF CONTRACT ECONOMY IN FRENCH JURISPRUDENCE AND JUDICIARY: A COMPARATIVE ANALYTICAL STUDY

The process of tracing the formation of contract economy as a legal concept entails searching for it in jurisprudence and the court. This notion is not new to them, and it is observed that it first arose in the Anglo-Saxon tradition. As for French jurisprudence, it lagged, unlike the court, which had a long history with this notion. It was used by the Paris Court of Appeal in the nineteenth century, which saw it as revealing the parties' same intent. As a prerequisite for adopting the theory of emergencies, it was also embraced by the French State Council when it evaluated the imbalance in the contract economy resulting from unanticipated unusual events. It was also used by the administrative judiciary to check the validity of altering administrative contracts to ensure that these adjustments do not impede the contract's economy or alter its purpose. In 1996, however, it started to expand in the Latin school, which was represented by French law. From a legal perspective, it was exposed in publications and research, and the phrase continued to be used afterward.

A Party’s Failure to Timely Rely on Notorious Publications Edited by an Arbitrator Precludes the Setting Aside of an Award for Lack of Impartiality. Note on Paris Court of Appeal Decision of 22 February 2022

The Paris Court of Appeal has recently held that a party was precluded from relying for the first time before it on the arbitrator’s alleged partiality based on articles authored by third parties and published in a journal co-edited by the arbitrator, whose existence and contents were notorious at the time of his appointment. To be allowed to rely on these facts in annulment proceedings, the applicant ought to have raised them before the sole arbitrator within the time limit provided for in the ICC Rules to challenge an arbitrator. A party’s failure to do so leads to the inadmissibility of its setting aside application. For an information to be notorious, it is sufficient that it be “easily accessible”. The fact that such information is contained in a database subject to a paying subscription is not sufficient to characterise a default of accessibility for arbitration professionals. Accordingly, information contained in such a database may be considered as “easily accessible”, and therefore “notorious” for arbitration practitioners. In addition, neither the scientific work freely carried out by the arbitrator in the context of his activities as editor of an arbitration journal, nor the titles and content of the articles relied upon to seek the setting aside of the award were such as to call into question the arbitrator’s impartiality.

Slot and Strabag Decisions of 19 April 2022: the ones where the Paris Court of Appeal is faced with a deadlock

Slot and Strabag Decisions of 19 April 2022: the ones where the Paris Court of Appeal is faced with a deadlock

Recognition or Enforcement and Annulment of Arbitral Awards in France: An Analysis of the Kluwer Research Results

The results of the Kluwer Research showed that, despite Paris being one of the most popular arbitration seats, French courts were the least likely to recognize and enforce an arbitral award, but also those with the highest number of vacated arbitral awards. The article analyses these results and offers some possible justifications for them. Concerning the enforcement and recognition procedures, the study only included reasoned decisions. The specificities of the French procedure however result in most of the decisions not being reasoned (the exequatur procedure is an ex parte procedure, only orders refusing the enforcement are reasoned) and the decision of the Court of Appeal dismissing an application to set aside an award (for awards rendered in France) has the effect of automatically enforcing the award. Therefore, analysing only reasoned decisions is not representative of the French courts’ approach. The article also analyses the grounds invoked by the claimants and their respective success rates, especially in comparison with other jurisdictions. Concerning the annulment procedures, France ranks as the country with the highest number of vacated awards. Indeed, while reviewing the number of annulment actions initiated in recent years before the Paris Court of Appeal, we concluded that the number of actions has doubled, with around 25% of successful annulment actions. As to the grounds for annulment relied upon by the claimants and their respective rates of success, the Kluwer Research revealed that the most relied upon grounds in France (authority not in accordance with the law and violation of public policy) were also the most successful ones. Offensive enforcement actions, exequatur, recognition, annulment, set-aside, France, Paris Court of Appeal, international public policy, empirical study, grounds for annulment

Paris Embraces Modern Art – But Not in Court: Opinion on the Cour d’Appel de Paris Decision – Jeff Koons v Franck Davidovici

Abstract In February 2021 the Paris Court of Appeal (Cour d’appel de Paris) rendered a decision against the US artist Jeff Koons, holding that he had infringed copyright relating to an advertisement photography that was more than 30 years old. Jeff Koons is famous for his Neo-pop Appropriation art – kitsch for some, a provocative breach with the traditional notion of art for others. It was not the first time Koons has had to defend his work in court. The French decision is particularly interesting, however, as it shows a very narrow understanding of the copyright exceptions. It is an illustrative example of the issues resulting from CJEU’s approach in Pelham, Spiegel Online and Funke Medien, where the Court held that once the recognisability of original elements has been established, the only way out of the infringement leads through the formal exceptions and limitations of the InfoSoc Directive. Based on the decision, I will reflect on the openness of copyright for art-specific forms of referencing and in particular analyse the subject matter and scope of the parody exception and contrast it with less formal approaches to consider new creative elements. I will also analyse the question of applicable law in internet cases.

Biographical perspectives on political agency and migration: The struggle of workers from the Maghreb against institutional discrimination in France’s National Railroad Company SNCF

ABSTRACT In France, in the early 2000s, a group of several hundred Maghrebi-born workers engaged in a legal case against their former employer, the national railway company SNCF. For decades, they had been denied the same wages, promotions, retirement pay, and further benefits as their French colleagues. In 2018, they finally won their case at the Paris Court of Appeal, thus setting an important precedent in the struggle against institutional discrimination. Based on biographical interviews, mainly with SNCF workers from Morocco, this article analyses the structural and biographical conditions for engaging in this political and legal struggle and sheds light on, amongst other things, the importance of transnational dynamics in collective resistance within a postcolonial context. This article thus aims to contribute to the discussion on migrants’ political agency, and how it is hindered or fostered by the different policies of relevant institutions both in the country of residence as well as in the country of origin.

Unidroit principles, applicable law, choice of law, rules of law, equity, lex mercatoria, mandate, mission, recours en annulation, recognition of jurisdiction, ultra petita, due process, international public policy França. Paris Court of Appeal. Pôle 1 – Chambre 1. Case No: 17/18001. Société Prakash Steellage Ltd. v. Société Uzuc S.A. 25.02.2020

Unidroit principles, applicable law, choice of law, rules of law, equity, lex mercatoria, mandate, mission, recours en annulation, recognition of jurisdiction, ultra petita, due process, international public policy França. Paris Court of Appeal. Pôle 1 – Chambre 1. Case No: 17/18001. Société Prakash Steellage Ltd. v. Société Uzuc S.A. 25.02.2020

Sofregaz v. NGSC (CA Paris)

On June 3, 2020, the International Commercial Chamber of the Paris Court of Appeal (the Court or the Court of Appeal) dismissed the annulment application brought by the Société Française d'Etudes et de Réalisation d'Equipements Gaziers (Sofregaz, now called TCM FR) of an arbitral award rendered in Paris on December 27, 2018, in favor of the Iranian Natural Gas Storage Company (NGSC), pursuant to the Rules of Arbitration of the International Court of Arbitration of the International Chamber of Commerce (ICC Rules). The Court ruled in particular that U.S. sanctions against Iran do not form part of French international public order but that European Union (EU) and United Nations (UN) sanctions do. This ruling provides useful guidance on the interaction between international sanctions and international arbitration.

UN and EU Sanctions Versus US Sanctions: Two Different Yardsticks Commentary on the Decision of the Paris Court of Appeal (International Commercial Chamber) (5th Pole, Chamber 16) of 3 June 2020, No. 21/2020

The Paris Court of Appeal rejected a challenge to an ICC award rendered in favour of an Iranian government-owned company. That challenge was based on allegations of breaches by the tribunal of due process, of the arbitrators’ mandate, and of public policy. Of note, the public policy challenge was based on the tribunal’s alleged failure to take into consideration UN, EU and US sanctions against Iran. This decision of the Paris Court of Appeal is in line with the established French case law regarding its answer to the above mentioned three grounds of challenge, but it drew a peculiar conclusion that US sanctions, contrary to UN and EU sanctions, are not part of French international public policy, even though having the same object. Challenge of the award, French case law, breach of due process-waiver of the right to object, breach of the arbitrators’ mandate and the duty to reason the award-breach of public policy, UN, EU and US sanctions against Iran-international consensus

Jurisdiction over Non-signatories, the Irreconcilable Approaches of French and English Courts Case Note on: (i) English Court of Appeal Decision of 20 January 2020 and (ii) Paris Court of Appeal Decision of 23 June 2020

Jurisdiction over Non-signatories, the Irreconcilable Approaches of French and English Courts Case Note on: (i) English Court of Appeal Decision of 20 January 2020 and (ii) Paris Court of Appeal Decision of 23 June 2020

Recent developments in the french courts’ approach to arbitral awards involving public interests

Amongst the grounds for annulment or for denial of enforcement of arbitral awards under French law, grounds based on a breach of international public policy directly aim at protecting public interests. Via a series of recent decisions the Paris Court of appeal has strengthened its review of the compatibility of international arbitral awards with international public policy, including in particular by conducting in-depth review of the facts to determine whether abreach of international public policy had arisen. In doing so, it has reversed its previous case law pursuant to which French courts would only annul awards for a breach of international public policy if such breach was “flagrant, effective and concrete”. The strengthening of French judicial courts’ review of international public policy is a welcome development given that, at the time of their previous case law, administrative courts had successfully claimed jurisdiction over awards concerning certain contracts entered into by French public entities, arguing that judicial courts may fail to consider the relevant public interests concerned by the arbitral awards, which they considered to be part of public policy. This has made the determination of the courts having jurisdiction to review awards significantly more complex.

Aviation Human Factors Related Industry News

Aviation Human Factors Related Industry News

Time‐Bar Defenses in Enforcement Proceedings: Analyzing the Rusoro Decision by the Paris Court of Appeals

Venezuela's 2011 nationalization of its gold‐mining industry resulted in three arbitral awards, all grounded in the Canada‐Venezuela Bilateral Investment Treaty and rendered by tribunals constituted according the ICSID Additional Facility, a set of arbitration, conciliation and fact‐finding rules for parties that fall outside of the International Centre for Settlement of Investment Disputes' Convention.

Recent Developments in the Paris Court of Appeal’s Approach to Public Policy

Since February 2017, the Paris Court of Appeal has changed its approach to assessing whether the recognition or enforcement of an international arbitral award conforms to international public policy as it is defined by French courts. The Court has moved away from its previous approach that consisted in a summary review of the award’s conformity with public policy, to a full assessment in fact and law, unbound by the evidence presented to the arbitrators or by the findings in their award. This article recalls the Court’s prior minimalist approach, before describing the three main recent cases from the Paris Court of Appeal and analyzing the Court’s new approach.

Paris Court of Appeal Exerts Power to Review Allegations of Corruption During Enforcement Proceedings

Consistent with France's reputation as a pro-arbitration jurisdiction, the French civil courts' review of arbitral awards on grounds of public policy is traditionally limited in terms of both standard and content. The provisions of the Code of Civil Procedure on the annulment and enforcement of awards refer to 'international public policy' – a narrow concept that encompasses the values and principles that France cannot ignore in an international context, rather than every domestic public policy rule. Moreover, according to the Court of Cassation, a violation of international public policy must be flagrant, actual and concrete. However, in recent years, the scope of the courts' review of arbitral awards on public policy grounds has been tested in certain Paris Court of Appeal decisions which reviewed the underlying evidence rather than the arbitral tribunal's own determinations in the relevant award. One example is the 10 April 2018 decision in Alstom Transport SA v Alexander Brothers Ltd, which is discussed in this article.

THE NEW INTERNATIONAL CHAMBERS OF THE PARIS COURTS – INNOVATIVE WAY FOR RESOLUTION OF COMMERCIAL DISPUTES

The process of the withdrawal of the United Kingdom form the European Union has been discussed predominantly from a political and economic point of view. However, the consequences are more far reaching. With UK on the doorstep of leaving the EU, the decisions issued by its courts would no longer benefit from the recognition system provided in the Brussels Regulation (Council Regulation (EC) No. 44/2001). As a result of this, it is expected that London would no longer be seen as a primary destination for international litigants.In the awaiting of the aftermath from the Brexit, other cities and member state countries of the EU have started the race to position themselves as the next “legal hub”. While other member states have been vocal about offering alternative courts, so far France has been at the forefront of this initiative. On 7 February 2018 two Protocols were signed by the French Minister of Justice, the President of the Paris Bar, and the presidents of the Paris Court of Appeal and the Paris Commercial Court. With the first protocol amendments were made to the already existing International Chamber within the Paris Commercial Court, whereas with the second Protocol a new International Chamber has been created within the Paris Court of Appeal. The aim of the creation of these international divisions within the Paris Court is to create an attractive jurisdictional system which would meet the expectations of the economic actors. Paris has already been one of the most important world centers for dispute resolution as a result of the work of the International Chamber of Commerce and its work in the field of Alternative Dispute Resolution (ADR). However, with this initiative Paris has an opportunity to further strengthen its attractiveness.The adoption of the two Protocols is a groundbreaking move which sets forth innovative rules of procedure, incorporating unique approaches in the field of international commercial litigation. The rules of procedure contain an increased level of flexibility offering the parties a chance for litigations with great similarity to arbitration. Most notably, the new Protocols provide for the usage of English as language in the course of the proceedings, adapted procedure which should better suit the need of the parties, focus on oral testimonies instead of written witness and expert submissions, possibility for cross – examination, broader scope of tools for securing evidence, such as requests for document production, as well as the possibility of non- French lawyers to appear in front of the Courts. The aim of this article is to provide an insight in the new structure of the International Chambers by reviewing the novelties in the two new Protocols. The article reflects on similar initiatives which have been undertaken in other EU members and countries worldwide, and whether this can be the starting point for more drastic and revolutionary reforms in the traditional litigation system.

Obligation of disclosure. Notorious fact. Declaration of independence. Independence and impartiality of the arbitrator. Public and accessible information. Annulment of arbitral awards. Paris Court of

Obligation of disclosure. Notorious fact. Declaration of independence. Independence and impartiality of the arbitrator. Public and accessible information. Annulment of arbitral awards. Paris Court of