Application of res judicata by the French Supreme Court: challenge of an award based on the same facts as a request for removal of an arbitrator already refused by the juge d’appui

Civ. 1st, 13 March 2013 – Carrefour c. Coop Atlantique

The fact that the supporting judge’s (the “juge d’appui”) decision dismissing a request for removal of an arbitrator for lack of independence and impartiality is res judicata prevents the award be set aside for the same facts subject to new elements arising subsequently to the first decision.

In the present matter, the respondent – CARREFOUR – had requested the Arbitral Tribunal’s chairman be removed due to the fact that he was counsel of another big distributor, directly interested by the enforcement of the award rendered. The request for removal had been logged after the rendering of the award. Such an intervention was possible given the fact that the Arbitral Tribunal had, at the same moment, been invited to render a second, interpretative award in the same case.

The award’s challenge fails for a procedural reason: the identity of objects of the contentions brought before the juge d’appui, on the one hand, and the Court of Appeals on the second.  The Supreme Court precises that the solution would not have been the same should the party requesting the challenge have submitted new circumstances, subsequent to the juge d’appui’s decision.

The decision is available here.

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