Recourse against arbitral awards in the context of an ICC arbitration held in Paris: Review of new developments in French law and procedure after 2011 (Fr)
When an international arbitration takes place under the auspices of the ICC, and when the seat is in Paris, unless the parties expressly provide a law to specifically govern the procedure, it is the law of the seat, i.e. - say that of France, which will in principle be retained to govern procedural questions, regardless of whether the Arbitrators or the parties are French or not.
The French rules of the arbitration procedure are provided for in the French Code of Civil Procedure. However, on May 1, 2011, the new Decree No. 2011-48 of January 2011 entered into force, modifying certain procedural rules that had previously been adopted by Decree No. 81-500 of 1981.
With regard to appeals against arbitral awards, the new law of 2011 provides for certain innovations in the fields of national and international arbitration.
I. In national arbitration
According to the old law of 1981, the direct appeal of an arbitration award was the rule and it was up to the parties to provide otherwise by agreement (1). This was completely reversed in the new 2011 law: an award cannot be appealed unless the parties agree otherwise (2).
Such an appeal can be brought as soon as the ICC award is rendered. However, the deadline for initiating the action has been shortened with the new law: the appeal is now only admissible if it is initiated within one month of the notification of the award (3), while the parties had, under the old law, up to a month from the service of the sentence affixed to the exequatur (4) to do this.
Under the old law and the new one, the appeal brought within the time limits suspends the execution of the arbitral award (5).
II. In international arbitration
The law of 2011 unequivocally provides that an action for annulment is now the only possible action against arbitral awards, when they are made in France (6). The 1981 law also provided for this action, but it did not explicitly exclude other remedies, such as appeal (7).
It is important to distinguish between direct appeal from an arbitration award, which authorizes the Court of Appeal to modify the arbitration award, which may then remain enforceable, and an action for annulment, which annulls the award, thus no longer allowing it. '' be executed, and which can only be committed on one of the legal bases of article 1520 of the Code of Civil Procedure (8):
- 1° Le tribunal arbitral s’est déclaré à tort compétent ou incompétent ; ou
- 2 ° The arbitral tribunal was irregularly constituted; or
- 3 ° The arbitral tribunal ruled without complying with the mission entrusted to it; or
- 4° Le principe de la contradiction n’a pas été respecté ; ou
- 5° La reconnaissance ou l’exécution de la sentence est contraire à l’ordre public international.»
Although an appeal is always possible against the decision of a court granting or refusing the enforcement of an arbitral award, direct appeal from an arbitral award is now expressly prohibited in international arbitration.
Under the old law and under the new, recourse can be brought as of the pronouncement of the sentence (9) however, once again, the period is shortened with the new law: the parties now have up to a month of the notification of the sentence to appeal (10), whereas they had until the month of service of a sentence affixed from the exequatur before (11). In international arbitration, an award must be duly served according to French procedure, and in particular through a French bailiff.
An important novelty brought by the new law is that neither the delay nor the lodging of an action for annulment suspends the execution of the sentence (12), which was formerly the case under the law of 1981 (13 ). This is tempered by the authority of the supporting judge (14) to suspend or fix performance conditions if he considers that the rights of one of the parties are likely to be seriously injured.
Two additional remarks regarding the appeal / action for annulment:
On the question of which of the old or the new law determines the remedies available against an arbitral award, Article 3 of the 2011 Decree provides that:
- In the context of national arbitration, the new rule which reverses the previous one providing for the appeal of law and the action for annulment as an exception, only applies if the arbitration agreement dates from May 1, 2011 ( date of entry into force of the Decree); Consequently, if the agreement dates after May 1, 2011, a direct appeal from the award is only possible if the parties agree, but if it dates before May 1, 2011, the appeal will be allowed, unless otherwise agreed by the parties.
- The new rule providing that an appeal or an action for annulment can only suspend the execution of an award in the context of international arbitration applies only if the arbitration award was made after May 1, 2011. Thus, if an arbitral award is made after May 1, 2011, the time limit for initiating an action for annulment, or the appeal (of a decision granting or refusing the exequatur and not of the award itself) will not suspend the execution, but this will be the case if it is rendered after this date.
- With the exception of a few exceptions in the transitional rules, all the provisions of the 2011 law apply from May 1, 2011. Consequently, the new shortened deadlines for initiating appeals, ie expiring in the month following the notification of the award, applies from May 1, 2011 in the context of national and international arbitration. Thus, regardless of when the arbitration agreement was concluded, the date of the arbitral award, or the date of the constitution of the court, the parties now only have until the month of notification of, no longer d 'a sentence exéquaturée (which would take longer to obtain), but a simple arbitral award, to initiate their appeal.
Notification and service of arbitral award
When is an arbitral award duly notified: is service (by a bailiff) required or is mere notification sufficient? The question is important in establishing the starting point for the period of time for me to file an appeal.
The distinction is also of great importance in view of the fact that service on a party resident abroad necessarily increases the time for bringing an action by 2 months (15), thus granting the opposing party 3 months to initiate the action. for cancellation in the case of arbitration.
Simple notification, however, does not impose this "distance delay". In addition, it is still up to the case law to specify its form and content. This procedure is therefore less restrictive.
The previous law of 1981 only allowed one form of notification in the context of national and international arbitrations: service by bailiff (16). Simple notification was not an option.
The 2011 rules are somewhat more flexible, allowing parties to opt for simple notification in some cases:
a / International arbitration
In international arbitration, notification must be made by service by bailiff, unless otherwise agreed by the parties (17).
The question then arises: when can we consider that the parties have agreed to proceed by simple notification? In the context of institutional arbitration, does the fact of adopting arbitration rules providing for notification by the institution constitute an agreement to proceed by simple notification of the award?
A recent decision of the Court of Appeal (18) qualifies as a procedural guarantee the notification by way of a bailiff and provides that the parties must express their will to waive it unequivocally.
Consequently, although the ICC Arbitration Rules only provide for a simple notification of the award to the parties by the Secretary, the fact of adhering to such rules does not constitute a unequivocal and manifest waiver service by a bailiff and cannot suffice to constitute the legally required notification (19). At most, such a notification only relieves the CCI of its obligation to notify and does not replace that which weighs on the parties (20).
In other words, in the context of an international ICC arbitration, an award rendered in France must be duly served in accordance with French procedure, unless the parties agree otherwise, failing which no time limit for bringing an action for annulment before the Court of Appeal French will only be determined (21).
b / National arbitration
Although the Decree provides that the notification of award resulting from a national arbitration must in principle be made by service by bailiff unless the parties agree otherwise (22), its specific provisions for remedies do not, unlike to the provisions on international arbitration (see para. a. /), the same distinction.
© Weissberg & Weissberg, 2015
(1) Article 1482 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981
(2) Article 1489 of Decree No. 2011-48 of January 13, 2011
(3) Article 1494 of Decree No. 2011-48 of January 13, 2011
(4) According to constant national case law; Article 1486 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981
(5) Article 1496 of Decree No. 2011-48 of January 13, 2011, Article 1486 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981
(6) Article 1518 of Decree No. 2011-48 of January 13, 2011
(7) Article 1504 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981
(8) Article 1520 of Decree No. 2011-48 of January 13, 2011, and 1502 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981
(9) Article 1519 of Decree No. 2011-48 of January 13, 2011, and 1505 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981
(10) Article 1519 of Decree No. 2011-48 of January 13, 2011
(11) Article 1505 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981
(12) Article 1526 of Decree No. 2011-48 of January 13, 2011
(13) Article 1506 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981
(14) The “sitting judge” in English.
(15) Article 643 and 680 of the Code of Civil Procedure
(16) Articles 1486 and 1503 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981
(17) Article 1519 of Decree No. 2011-48 of January 13, 2011
(18) CA Paris, pole 1, ch. 1, July 4 2013, n ° 12/08215
(19) Antoine KIRRY and Geoffroy GOUBIN, Progress in trompe l'oeil: the new text on the notification of awards made in France in international arbitration: Procedure 2014, study 5, para. 4.
(20) CA Paris, pole 1, Ch. 1, March 6, 2014
(21) Article 651 et seq. of the Code of Civil Procedure
(22) Article 1484 of the Code of Civil Procedure