FRANCE Trends and Developments Contributed by: Gustavo Laborde and Vinko Galiot, Laborde Law
protections and access thereto extended to foreign investors, non-reviewable merits issues. On that ques - tion, the French approach stands in marked contrast with that of other major jurisdictions. The divergence lies not in the level of judicial review, but in the range of issues treated as jurisdictional. By 2025, French courts had excluded from annulment review all of the following conditions regarded by investment tribunals as jurisdictional (treated as fully reviewable by domestic courts) that are expressly set out in the treaty: • temporal requirement that an investment be made after the treaty’s express cut-off date – classified as “a substantive rule”, not as a condition for con - sent to arbitration on which the tribunal’s jurisdic - tion depended ( Oschadbank v Russia ); • legality of the investment and compliance with host State law – classified as a condition for substan - tive protection, not of consent to arbitrate, regard - less of whether a legality requirement is absent from the treaty altogether ( Glencore v Bolivia ) or incorporated into the treaty definition of investment itself ( Cengiz v Libya ; Air Canada v Venezuela ) and at odds with a French court decision holding that the legality requirement in the statutory definition of investment is a jurisdictional issue ( Selmani v Kosovo ); • existence of a protected investment at the time of the alleged treaty breach – classified as “a sub - stantive condition of the protection provided by the Treaty,” not a condition for consent ( Agarwal v Uruguay ); • fork-in-the-road clause – classified as a procedural condition governing the implementation of the State’s consent to arbitration, thus going to admis - sibility rather than jurisdiction ( Olin v Libya ); • prior domestic litigation requirement – classified as a procedural admissibility condition, not a jurisdic - tional one ( Agarwal v Uruguay ); and • temporal applicability of foreign investment legisla - tion to pre-existing investments – classified “not [as] a condition relating to the arbitration offer, but a substantive condition relating to the applicability” of the domestic law ( Selmani v Kosovo ).
The pattern raises a harder question: if none of these conditions is jurisdictional, however closely tied to the treaty’s definition of “investment” or embedded in the dispute settlement clause itself, what treaty condi - tions, if any, remain jurisdictional? The case law sug - gests remarkably few. Jurisdictional review appears largely confined to the threshold questions whether the claimant’s assets fall within the treaty’s investment taxonomy and whether the claimant qualifies as an investor by nationality. Whether found in the treaty’s definition of “invest - ment” or elsewhere in the treaty, express conditions such as legality requirements or temporal limitations are treated as questions of treaty protection rather than consent. The limited category of jurisdictional issues or “core definitions” survives in theory, but lit - tle of practical significance appears to remain within it. Form over substance? The Oschadbank v Russia saga shaped how French courts understand what is considered jurisdictional. In 2021, the Paris Court of Appeal initially placed Article 12 of the Russia-Ukraine BIT, which limited the trea - ty’s application to investments made since 1 January 1992, on the jurisdictional side of that line. The Article 12 temporal requirement was jurisdictional, and thus the Paris Court annulled the award on the ground that the tribunal had wrongly assumed jurisdiction over an investment made before the treaty cut-off date. What ensued became emblematic of the French approach. The Cour de cassation quashed the deci - sion in December 2022, reclassifying Article 12 as “a substantive rule” rather than “a condition of con - sent to arbitration on which the tribunal’s jurisdiction depended.” On remand in July 2025, the Paris Court reversed course and this time upheld the award, dis - missing Russia’s annulment ground based on the date of the investment as a merits question outside the confines of its jurisdictional review. The distinction the Cour de cassation drew to reach its decision remains unexplained: it seems to rely on the formalistic idea that the temporal requirement was not included in the treaty’s definition of investment in Article 1 or the dispute settlement clause in Article 9, but instead appeared in a different provision, namely
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