French judge’s jurisdiction to know of the validity of the constitution of an Arbitral Tribunal seated abroad if the arbitrator is domiciled in France

First Civil Chamber, 28 March 2013, n°11-11320

The French Supreme Court confirms the issue of the French judge’s jurisdiction to know of the existence or validity of the constitution of an arbitral tribunal seated abroad.  It should be reminded that the Swiss Federal Tribunal recently refused to decide upon the nomination of an arbitrator by the foreign juge d’appui (i.e., the supporting judge), which was French.

The facts before the French Supreme Court were the following: the French company Elf Neftegaz, signatory to a cooperation contract for the exploitation of hydrocarbon fields in Russia providing for an arbitration agreement, had been dissolved and struck off the French Trade and Companies Register (“Registre du commerce et des sociétés”).  Wanting to initiate arbitration proceedings, the other party, the Russian company Interneft, requested the French juge d’appui (i.e., the “supporting judge”) to designate an ad hoc representative (“mandataire ad hoc”) of the French dissolved company in the arbitration procedure.  This representative thus nominated an expert on behalf of Elf Neftegaz.  However, the juge d’appui’s decision to designate a representative was withdrawn and a new representative was designated.  At that point, Elf Neftegaz objected to the nomination of the arbitrator designated by the first representative.

In a decision of 6 January 2011,the French Court of Appeal had declined jurisdiction to decide on the issue of the validity of such a nomination, the arbitration agreement providing the seat of the arbitration would be Stockholm and the UNCITRAL Rules being applicable, to the exclusion of French procedural rules.

On 28 March 2013, the French Supreme Court held that;

  • Withdrawal of the first representative’s designation entails a retroactive disappearance of the actions he performed, including the arbitrator’s designation.
  • The only judge having jurisdiction to know of an action for the invalidity of an arbitral tribunal’s constitution is the French judge when the arbitrator is domiciled in France.

Consequently, an arbitration agreement providing for a seat of the arbitration abroad does not deprive the French judge of its jurisdiction as regards the validity of the designation of an arbitrator domiciled in France.

The decision is available here.

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