Arbitration: the support judge is not the guardian of the arbitration rules

In France, for international arbitration, the judge in charge of the arbitral proceedings is the president of the Tribunal de grande instance of Paris when one of the parties is exposed to a risk of denial of justice.

The support judge does not have general jurisdiction to rule all disputes arising during the arbitration process. He is only competent to provide, on a suppletive basis, the constitution of an arbitral tribunal in case of risk of denial of justice.

The support judge does not have jurisdiction to rule on a dispute relating to the wrongful performance by an arbitration institution of the contract of organization of the arbitration. This debate is within the jurisdiction of the common law jurisdiction.

Court of Cassation, Civil Division 1, December 13, 2017, No. 16-22131

 

A dispute arose between the State of Cameroon and a Belgian company concerning a contract to lease a protected area. The contract was terminated.

The Company seized the International Chamber of Commerce (ICC) of a request for arbitration.

As part of the arbitration proceedings, an additional provision was requested by the ICC.
This additional provision was not paid by the Belgian company.

The ICC then applies its rules and more specifically Article 37 6.
« Article 37 – Advance to Cover the Costs of the Arbitration
(…) 6. When a request for an advance on costs has not been complied with, and after consultation with the arbitral tribunal, the Secretary General may direct the arbitral tribunal to suspend its work and set a time limit, which must be not less than 15 days, on the expiry of which the relevant claims shall be considered as withdrawn. Should the party in question wish to object to this measure, it must make a request within the aforementioned period for the matter to be decided by the Court. Such party shall not be prevented, on the ground of such withdrawal, from reintroducing the same claims at a later date in another proceeding. »

The ICC taking into consideration the non payment of  advanced costs, considered that the applications were withdrawn.  The ICC secreteriat asked the Arbitral Tribunal to suspend its activities.

The Belgian Company considered that the suspension by the arbitral tribunal of its activities constituted a denial of justice. The company then appealed to the president of the Tribunal de grande instance of Paris in accordance with Article 1505 of the Code of Civil Procedure.

The President of the Tribunal de Grande instance of Paris was seized as support judge of the arbitral tribunal.

The role of the support judge is primarily to settle any dispute related to the constitution of the arbitral tribunal, the appointment of an arbitrator, the impediment of an arbitrator or its removal (Articles 1451 to 1460 of the Code of Procedure applicable to internal arbitration but also to international arbitration).

The president of the tribunal de grande instance of Paris ordered the ICC to restore the claims and invited the court to resume its activities.

Cameroon appealed from this decision.

The Court of Appeal (CA PARIS Pole 1 – Chamber 1, 24 MAY 2016, RG n ° 15/23553) cancelled the order. The Court of Appeal considered that the support judge could not replace the arbitration center to apply its arbitration rules. The Court considered that the support judge had exceeded his powers.

 » The support judge has analyzed why the costs of the arbitral proceedings increased. He has ruled on the merits of the additional advanced costs, as well as on the conditions of application of Article 30 which allows the ICC to set separate advanced costs ; He inferred from these circumstances that the decisions of the arbitration institution, by taking into account the financial situation of the plaintiff, infringed the right of access to the judge;

But provided that a party, who complains of an improper performance by an arbitration center of the contract of organization of the arbitration, must not seize the support judge, but the common law judge of contracts; The support judge’s decision by which, against the agreement of parties, replaces the bodies of the arbitration center in the interpretation of its rules, censures its decision and orders this institution to adopt others, is vitiated by an error of assessment.;  »

The Court of Cassation was seized of this question. She was questioned on the extent of the power of the support judge and his degree of interference in the arbitration organization contract.
The Court of Cassation confirmed the position of the Paris Court of Appeal.

It ruled that the support judge does not have general jurisdiction to settle disputes arising during the arbitral proceedings. The sole role of the support judge is to provide for the establishment of an arbitral tribunal in the event of a risk of denial of justice.

By not confining itself to the constitution of an arbitral tribunal which was constituted but by interfering in the dispute over the application of the arbitration by the arbitration institution, the support judge went beyond his mission.

The Court of Cassation thus censured the fact that the state judge interfered in the arbitral proceedings.

The arbitral procedure is autonomous and the role of the state judge must be strictly limited to the situations provided for by the texts.

The Court of Cassation thus classically reaffirmed the Intention in France not to extend the powers of the support judge beyond those strictly conferred by Article 1505 of the Code of Civil Procedure.

The arbitration procedure must not be under the supervision of the support judge. The support judge must confine himself to his role of providing for the constitution of the arbitral tribunal.

The control of the organization of the arbitration is then incumbent upon the common law judge seized on the basis of Article 1520 of the Code of Civil Procedure.

The common Law judge then has a general power of control but limited to a few strictly enumerated violations of principles or rules of arbitral proceedings that may invalidate an arbitration proceeding:
– The arbitral tribunal wrongly declared itself to be competent or incompetent;
– The arbitral tribunal was irregularly constituted;
– The arbitral tribunal ruled without complying with the mission entrusted to it
– The principle of contradiction has not been respected;
– The recognition or enforcement of the sentence is contrary to international public order.

This position can only be approved. It respects the principle of autonomy of the arbitral procedure and insists on the necessity for each judge to remain strictly within its scope of intervention.

 

Article written by Olivier VIBERT

Attorney at the Paris Bar Association

 

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