Arbitral award stands as French court rejects document production complaints

William Brillat-Capello, a Paris-based expert in international commercial arbitration, annulment and enforcement of awards at Pinsent Masons, was commenting after the Cour de Cassation ruled that the dismissal of a request for document production does not justify the setting aside of an arbitral award.

The decision was issued after Green Network, an Italian company, challenged the decision of the Cour d’Appel de Paris not to set aside an award issued in favour of Alpiq, a Swiss company, issued by a tribunal constituted under the aegis of the ICC International Court of Arbitration.

An award issued by an arbitral tribunal seated in Paris can only be challenged before the Cour d’Appel de Paris, and its decision is subject only to a limited review of the enforcement of legal grounds by the Cour de Cassation.

In accordance with Article 1520 of the Code of Civil Procedure (CPC) in France, grounds for annulment of an award are limited to cases where the tribunal unduly admitted or refused its jursidiction, was improperly constituted, ruled without complying with the mandate confered upon it, violated due process, or issued an award contrary to French international public policy.

Green Network invoked two legal arguments to challenge the Cour d’Appel de Paris decision.

The first one did not relate to the award itself but rather to the conduct of the procedure followed by the Cour d’Appel de Paris. Green Network argued that the judge acted in breach of due process when he struck off the records some of the exhibits that it introduced in the set aside proceedings.

The Cour de Cassation rejected this claim, noting that the Cour d’Appel de Paris clearly ruled that these exhibits had been produced in a translated version only on the cut-off date for their admission as evidence in the case, almost three and a half years after Green Network had first filed submissions and exhibits in the annulment proceedings.

Brillat-Capello said: “This was a clear breach of the procedural rule that requires parties to a procedure to produce their evidence ‘in due course’, as stated under Article 15 of the CPC. On top of illustrating that obtaining a decision from the Cour d’Appel de Paris is a long process, it also confirms that parties should specify that the International Protocol of the Cour d’Appel de Paris applies, to avoid issues with translation of English documents, and must not delay the production of evidence at risk of inadmissibility.”

The second argument Green Network raised before the Cour de Cassation related to the last ground of Article 1520, which allows for annnulment based on the breach of French international public policy.

It was Green Network’s position that the decision of the Cour d’Appel de Paris should be quashed as the award had been issued in violation of the rights of the defence, and thus in breach of French international public order. Green Network relied on the fact that the arbitral tribunal dismissed a request for production of documents and, on the same day, declared that the discussions between the parties were closed. Green Network considered that it has been deprived, without legitimate cause, because of these decisions, of its right to present its full case to the tribunal and of its right to react to the tribunal’s decision to dismiss the document production request.

In addressing that argument, the Cour de Cassation provided some clarity on the rules regarding enforcement of Article 1520,5° of the CPC, which provide the possibilty to annul an award for breach of French international public order.

The Court de Cassation first highlighted that the Cour d’Appel de Paris is the judge of the award, and its role is to admit or refuse said award within the French legal order, and not to review the case and issue a new decision on the merits of the dispute, this task being assigned to the arbitral tribunal by effect of the arbtiration agreement.

As a result, the scope of the review of the Cour d’Appel de Paris is limited to the assessment of the violation of French international public order. However, the Paris court can review any factual or legal element that may characterise such a breach, in line with the established case law. This is the so-called fullness of jurisdiction (“plénitude de jurisdiction”) of French courts over international awards, which is sometimes criticised for constituting a limitless standard of review which would be tantamount to a revision of the merits of the award. 

In exercising its fullness of jurisdiction, however, the Cour d’Appel de Paris cannot review the reasons for which the arbitral tribunal considered that the production of document ought to be dismissed. In other words, the assessment of the materiality and relevance of a production of document requests falls within the jurisdiction of the arbitral tribunal and not the courts. In this sense, all that should matter to the Cour d’Appel de Paris is whether the solution reached by the tribunal, and not the reasoning, is compatible with essential rules that the French legal order cannot admit the violation of, and which constitute the French international public order. The mere exercise of the tribunal’s faculty to admit or dismiss a request for document production is not enough to conclude to a breach of the rights of the defence, the Court of Cassation said.

The Cour de Cassation noted that the tribunal clearly stated the reasons on which it relied to dismiss the request for document production, both in a procedural order and in the final award. This, Brillat-Capello said, is an indication that, at least as far as set-aside proceedings grounded on issues related to document production, the Cour de Cassation does not intend to create a limitless standard of review.

Further, the Cour de Cassation noted that the Cour d’Appel de Paris concluded that Green Network has not been surprised by the tribunal’s decisions on the cut-off date, because the tribunal had already issued a procedural order dismissing the request in dispute earlier in the arbitration. The second decision of the tribunal was thus rather a decision not to reconsider the outcome of the document production request.

In any event, had Green Network been surprised by the tribunal’s decision, it would have constituted a breach of the adversarial principle (“principe de la contradiction”), another element of due process that can be argued under the CPC as a separated ground for annulment. However, Green Network did not rely upon that argument in this case.

The Cour de Cassation held that the Cour d’Appel de Paris rightfully refused to set aside the award, six years after it was issued.

Brillat-Capello said: “By way of principle, the taking of evidence and especially requests for document production that relate to the merits of the disputes are only fought once before the arbitral tribunal – at the set aside stage, it’s too late. It means that it is important to clearly identify the documents that are potentially relevant since the outset of the arbitration, and then fully make your case before the tribunal.”

“When it comes to annulment proceedings, the flexibility of the Cour d’Appel de Paris, especially when applying the International Protocol, does not mean that basic due process rights will be infringed, even when it comes to the production of translations of documents. Those should be filed at the outset of the annulment proceedings before the Cour d’Appel de Paris,” he said.