FRANCE Trends and Developments Contributed by: Gustavo Laborde and Vinko Galiot, Laborde Law
Laborde Law 91 rue du Faubourg Saint Honoré 75008 Paris France Tel: +33 1 80 49 34 39 Email: contact@laborde-law.com Web: www.laborde-law.com
Introduction: Old Cases Making New Law In a world in constant turmoil, can France retain its edge as a leading jurisdiction for investor-State arbi - tration? Paris remains one of the world’s pre-eminent arbitral seats, with the Paris Court of Appeal (the “Par - is Court”) remaining one of the busiest in the field. But geopolitical fractures and the European Union’s sustained campaign against intra-EU investor-State arbitration are fundamentally reshaping which arbitra - tions are seated in Paris and which arbitral awards French courts are asked to scrutinise. The resulting body of case law is not without its tensions and con - tradictions. Legal and geopolitical forces are reshaping the case - load of French courts. Following Achmea and its prog - eny, intra-EU investment arbitrations have migrated away from Paris and other EU seats: Geneva and Lon - don have absorbed much of that practice. Beyond the confines of the EU, arbitrations involving the Russian Federation have moved further still: since early 2022, Paris has no longer been designated as a legal seat of arbitration in cases against Russia, with Hong Kong and Dubai (more specifically, the Dubai International Financial Centre (“DIFC”)) emerging as preferred alternatives. But the Crimea arbitrations, already seated in Paris before February 2022, con - tinue to generate a rich body of case law defining and, in some respects, materially redefining, the contours of annulment review. This contribution examines the principal develop - ments emerging from recent French investment arbi - tration court decisions. It focuses on the evolving scope of annulment review of Paris-seated arbitral
awards, marked by the narrowing of jurisdictional review, the enforcement of arbitrator impartiality and of party agreements on the constitution of the tribunal and the emergence of a maximalist review of awards for compliance with international public policy. The discussion then turns to another distinctive, albeit underutilised, feature of French arbitration law: the universal jurisdiction of the juge d ’ appui as a last bas- tion of defence against denial of justice in international arbitration. Together, these developments reveal a case law shaped by centrifugal forces pulling in opposite direc - tions: more restrained in some respects; more inter - ventionist in others. The Narrowing Perimeter: Jurisdictional Review Under Article 1520 (1) When seized of an annulment action under Article 1520 (1) of the French Code of Civil Procedure, French courts do not defer to a tribunal’s own assessment of its jurisdiction. However, the types of issues consid - ered jurisdictional and thus subject to de novo review in set-aside proceedings have gradually become more limited. This is due to a series of decisions that have reclassified express treaty conditions and other requirements, once widely seen as jurisdictional, as substantive matters that are now protected from judi - cial scrutiny. Shrinking jurisdictional core In investment cases, the scope of jurisdictional review under Article 1520 (1) turns on a single distinction: whether a treaty provision defines the limits of State consent to arbitrate, a reviewable jurisdictional issue; or rather whether it defines the scope of substantive
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