Confirmation of the validity of the arbitration agreement in case of dissolution of a company

First Civil Chamber, 27 February 2013, n°12-16.328

In a decision of 27 February 2013, the French Supreme Court confirmed its decision Deshaye veuve Lemaître c/ Deshaye of 30 January 1967 (Com., 30 janvier 1969, Bull. civ. 1967, IV, n°52), upholding an arbitral tribunal’s jurisdiction to know of the dissolution of a company despite the fact that Article R. 210-5 of the Commercial Code provided for the Tribunal of Commerce’s jurisdiction.

The facts of the case were as follows: a protocol agreement had been signed between Alstom transport, CDC projets urbains and the Groupe Investimmo for the acquisition of a real-estate complex, which was, in turn, to be sold to a company to be created. The protocol contained an arbitration agreement for all disputes in relation to its interpretation, validity and/or execution. It also provided that in case of contradiction between the statutes of the company to be created and the protocol, the latter would prevail. The company Tarbes industrie was created the same day and became the beneficiary of a promise to sell the complex, object of the protocol.

Subsequently, wishing to dissolve Tarbes industrie, Alstom and the Caisse des dépôts et consignations, acting on behalf of CDC projets urbains, brought suit against the Groupe Investimmo and Tarbes industrie before the Tribunal of Commerce, under Article R 210-15 of the Commercial Code. The Groupe Investimmo then raised the Tribunal of Commerce’s lack of jurisdiction on the basis of the protocol’s arbitration agreement.

The Supreme Court held that the provisions of Article R 210-15 of the Commercial Code did not render “manifestly inapplicable” the arbitration agreement because (i) the protocol prevailed on Tarbes industrie’s statutes and (ii) the disappearance of this company’s social purpose “pertained to the very existence of the protocol agreement” since it had been signed with a view to create Tarbes industrie.

The Supreme Court thus confirms that the Tribunal of Commerce does not have exclusive jurisdiction as regards companies’ dissolutions, the latter having no jurisdiction in presence of an arbitration agreement.

The decision is available here.

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