Cass. Civ. 1st, March 4 2020, n° 18-22019, ANTRIX CORPORATION / DEVAS MULTIMEDIA PRIVATE LTD
The company DEVAS MULTIMEDIA PRIVATE is a company of Indian law having obtained an arbitral award of the Chamber of commerce international against another company of Indian law: ANTRIX CORPORATION.
Wishing to execute this against the assets held in France by its debtor, the company DEVAS MULTIMEDIA PRIVATE has obtained the exequatur of the arbitral award by order of the Judicial Tribunal of Paris on the foundation of the Convention of New York of June 10 1958 relative to the recognition and the execution of foreign arbitral awards and of article 1516 of the Code of civil procedure.
The company ANTRIX CORPORATION has then lodged appeal of the order of exequatur before the Court of appeal of Paris.
This one was indeed arguing that the arbitration clause stipulated that the arbitration whose seat was situated in New Delhi would be conducted in accordance with the rules and procedures of the Chamber of commerce international (ICC) or of the Commission of the United Nations for the law commercial international (UNCITRAL).
However, the company ANTRIX CORPORATION had opposed itself to an arbitration ICC in the absence of agreement on the competence of this latter.
The Court of appeal of Paris rejected the recourse against the order of exequatur of the arbitral award.
The company ANTRIX CORPORATION formed an appeal in cassation against the decision of the Court of appeal of Paris on the foundation of articles 1466 and 1506, 3° of the Code of civil procedure.
Article 1466 of the Code of civil procedure states: “The party who, in knowledge of cause and without motive legitimate, abstains from invoking in time useful an irregularity before the arbitral tribunal is deemed to have renounced to thereof avail.”
Article 1506, 3° of the Code of civil procedure provides: “Unless the parties have thereof agreed otherwise and under reserve of the provisions of the present title, apply to the arbitration international the articles: 1462, 1463 (paragraph 2), 1464 (paragraph 3), 1465 to 1470 and 1472 relative to the instance arbitral.”
By visa of these two texts, the Court of cassation posits the principle that the party who, in knowledge of cause and without motive legitimate, abstains from invoking in time useful an irregularity before the arbitral tribunal is deemed to have renounced to thereof avail before the judge of the exequatur.
The Court of appeal of Paris had noted that the company ANTRIX CORPORATION had contested the regularity of the composition of the arbitral tribunal constituted under the aegis of the ICC from the moment that the option alternative of the choice of the rules of the UNCITRAL offered by the clause implied an arbitration ad hoc, exclusive of an arbitration institutional.
However, does not constitute an argumentation contrary carrying renunciation to avail oneself of an irregularity holding to the composition of the arbitral tribunal, the fact for a company to sustain first, before the arbitral tribunal that an arbitration clause would have a character pathological by providing an arbitration procedure conducted in accordance with the rules and procedures of the ICC or of the UNCITRAL, […] then to invoke before the judge of the exequatur, that an arbitration clause would target an arbitration ad hoc without intervention of the ICC in the designation of the arbitral tribunal.
In consequence, the decision of the Court of appeal of Paris, judge of the exequatur of the arbitral award, is infirmed and the exequatur of the arbitral award is refused.
This solution retained by the Court of cassation is to be brought close to its decision Cass. Civ. 1st, 11 July 2019, n° 17-20423, DAMIETTA INTERNATIONAL PORT COMPANY / ARCHIRODON – ARAB CONTRACTORS, file in which the recourse in annulment against the arbitral award had been rejected.