Confirmation by the French Conseil d’Etat of the conditions of its jurisdiction in matters of exequatur and challenges of an award in relation to a public contract

Conseil d’Etat, 19 April 2013, n°352750

Following the Inserm decision of 17 May 2010 (Tribunal des conflits 17 mai 2012, Inserm, requête n°3754), the Conseil d’Etat – the French Supreme Court as regards administrative matters – upheld jurisdiction to decide a challenge brought against an arbitral award in relation to a public contract rendered in France (i), but stated that it lacks jurisdiction if the award is rendered abroad.  It also specified that the administrative judge always has jurisdiction to decide upon the exequatur of an award arising out of a public contract and involving French public entities (iii).

In the case at hand, the Syndicat mixte des aéroports de Charente (a syndicate in the airport sector – the “SMAC’) and the company Ryanair had entered into two contracts on 8 February 2008, which were terminated by Ryanair on 17 February 2010 when it informed the SMAC of its will to terminate their contractual relationship.

Following such termination, Ryanair brought suit before the London Court of International Arbitration (“LCIA”), as per the arbitration agreement contained in the contracts.  In parallel, the SMAC brought suit before the Administrative Tribunal of Poitier.

Subsequently to having upheld its jurisdiction in an award dated 22 July 2011, the arbitral tribunal held that Ryanair had validly terminated the contracts concluded with the SMAC by award dated 18 June 2012.

The SMAC then challenged both awards before the Conseil d’Etat.

The Conseil d’Etat reminded that when a dispute having arisen out of a public contract concluded between a French public entity and a foreign private legal entity results in an award being rendered in France, under Article L. 321-2 of the Administrative Justice Code (“CJA”), the French administrative courts have jurisdiction to decide the request for annulation brought against the award.  If the Conseil d’Etat thus confirms the principle of jurisdiction of French administrative courts set by the Tribunal des conflits in the Inserm decision, it declines jurisdiction when the award in relation to a public contract concluded with a French public entity is rendered abroad.  In the matter at hand, the award challenged by the SMAC had been rendered in London, the Conseil d’Etat hence declined jurisdiction.

Finally, if the Conseil d’Etat declares the administrative courts always have jurisdiction to know of the exequatur of an award relative to a public contract (Article L. 311-1 CJA), it also holds in the present case that since the exequatur of the award had not been requested, the SMAC’s alternative request tending to the non recognition and non enforcement in France was premature and consequently manifestly inadmissible.

This decision is bound to be commented given its debated content, including as regards the fragmentation of courts having jurisdiction to know of the exequatur and/or annulment of the award.

The decision is available here.

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