New French Arbitration Law Clarifies Role of National Courts and Reinforces Recognition and Enforcement of Arbitration Awards
The new French arbitration law, published on 14 January 2011, further reinforces Paris’ position as a leading arbitration centre. The new law, which comes thirty years after the previous 1980 law regarding domestic arbitration and the 1981 law dealing with international arbitration, maintains the distinction between domestic and international arbitration. It clarifies and enhances an already arbitration-friendly law by codifying case-law and including innovative provisions in the Code of Civil Procedure (Articles 1442 to 1527). This is apparent, in particular, in the new provisions governing the role of French courts in supporting arbitration and those regarding the recognition and enforce [...]
The European Commission’s Opposition To Intra-EU BITs And Its Impact On Investment Arbitration
The growing success of investment arbitration may collide with the European Commission’s attitude towards intra-EU BITs, as shown recently by a development reported in August 2010 (the IA Reporter, August 5, 2010, Vol. 3, No. 12) regarding the Eureko v. Slovakia arbitration. In this case, Eureko initiated a claim against the Slovak Republic based on the Netherlands-Slovakia BIT. In the jurisdictional phase of the proceedings, the arbitral tribunal invited the Commission to provide its observations on the claim. In its response, as reported by the IA Reporter, the Commission cast “serious doubts” on the jurisdiction of the tribunal to hear a claim based on an intra-EU BIT.
This deve [...]
Existence and Validity of an Arbitration Agreement: The French Supreme Court Confirms that the Validity of an Arbitration Agreement Depends Primarily on the Common Intent of the Parties
On 8 July 2009, the French Supreme Court rendered a decision confirming its position that the existence and the validity of an arbitration agreement should be determined primarily in light of the common intent of the parties (Société d’études et représentations navales et industrielles (SOERNI) et autres vs. Société Air Sea Broker limited (ASB), July 8, 2009, Case no. 08-16025).
The case concerned a transportation agreement entered into by SOERNI and ASB for the transport by ASB of a motorboat from Libreville to Pointe Noire. The agreement between the parties did not contain any arbitration clause. However the parties also entered into a hold harmless letter, which made reference to a [...]
International Arbitration and French Insolvency Proceedings: French Supreme Court Reiterates Importance of Public Policy
On May 6, 2009, the French Supreme Court rendered a decision relating to the consequences of insolvency proceedings commenced in France against a party to pending international arbitration proceedings (Jean X. v. International Company For Commercial Exchanges (Income), May 6, 2009, Case no. 08-10281).
A French company had signed three contracts for the sale of crystallized sugar with an Egyptian company. Pursuant to the contracts, the parties were to refer any disputes thereunder to arbitration. The Egyptian company initiated arbitration proceedings on October 5, 2001 to settle a dispute in connection with the performance of the contracts. On May 20, 2003, while arbitration proceedings were [...]
Phoenix Action Ltd. v. The Czech Republic, ICSID Case No. ARB/06/5, Award of April 15, 2009 – Concept of investment under the ICSID Convention revisited
In a decision rendered on April 15, 2009, a three-member tribunal composed of Brigitte Stern as chairperson, Andreas Bucher and Juan Fernandez-Armesto rejected Phoenix Action Ltd’s (“Phoenix”) claims against the Czech Republic.
By way of background, Phoenix is an Israeli company which purchased two Czech companies, Benet Praha (“BP”) and Benet Group (“BG”), in 2002 while these two companies were involved in ongoing legal disputes – BG with a private party, BP with the Czech fiscal authorities. The Czech Republic challenged the jurisdiction of the Tribunal on the basis that Phoenix was an ex post facto sham Israeli entity created by a Czech national in order to establish diversity of national [...]
Paris Court of Appeal Confirms Importance of Estoppel in International Arbitration
On October 9, 2008, the Paris Court of Appeal rendered two decisions confirming the importance of estoppel in international arbitration. See Merial SAS v. Klocke Verpackungs – Service GmbH, October 9, 2008, Case no. 07-06619; Marocaine des Loisirs v. France Quick SAS, October 9, 2008, Case no. 07-14539.
In Merial, the claimant, a French company, sought annulment of an arbitral award on the grounds, inter alia, that it was not given the opportunity to reply in writing to new claims introduced by the defendant, a German company, two months before a scheduled hearing during the arbitration proceedings. The claimant also argued that the arbitral tribunal had ruled on the defendant’s t [...]
