Court of Cassation, No. 92-19.111

Court of Cassation, First Civil Chamber, 10 May 1995, 92-19.111

LETAVERNIER

vs.

AHSEN INOX

On the first ground of appeal (in French Pourvoi en cassation) (first and third parts), the second ground of appeal (in French Pourvoi en cassation) (second part) and the fourth ground of appeal (in French Pourvoi en cassation) (second part), combined:

In view of Articles 1493 and 1457, first paragraph, of the new Code of Civil Procedure, as well as Articles 1504 and 1502-2 of the same Code;

Whereas, the arbitrator appointed in disregard of the will of the parties or of the aforementioned texts is unlawfully appointed, and the decision of the judge who proceeds to this appointment without being empowered to do so may be subject to appeal;

Whereas, the contract concluded in 1986, between the French company Letavernier and the Moroccan company Ahsen Inox, stipulated that any dispute would be settled by an “arbitrator appointed by order of the President of the Paris Commercial Court ruling in summary proceedings”. After a first arbitrator appointed in this manner in 1989 was declared to have no jurisdiction, the President of the Paris Commercial Court, upon a claim filed by Ahsen Inox, declared by an order of 27 September 1990 that it could rule by reason of serious difficulty, and authorised the claimant to file a claim for the principal on a set date. Upon the filing of such claim, the Paris Commercial Court appointed a new arbitrator and extended the duration of his mission. The arbitrator having decided to resign, and the same Court, upon a claim filed once more by Ahsen, appointed the same arbitrator as in 1989 and convicted Letavernier on the basis of Article 700 of the new Code of Civil Procedure.

Whereas, the judgment under appeal declared inadmissible the appeal lodged by Letavernier against this decision, and dismissed its action for annulment of the arbitral award which ordered the latter to pay various sums to Ahsen Inox. The Court of Appeal based its decision on Article 487 of the new Code of Civil Procedure which authorises the judge, ruling in summary proceedings, to refer the case as a summary proceeding to the collegial court. This does not alter the legal remedies provided for in Article 1457 of the same Code. Therefore, the said collegial court had been able to lawfully appoint the arbitrator in lieu of the president ruling in summary proceedings.

Whereas, by ruling in this manner, while its own findings indicate that the arbitrator had not been appointed by the “judge” chosen by the parties, even if organised as a collegial court, but by the Commercial Court hearing the case on the merits, the court of appeal violated the above-mentioned texts;

FOR THESE REASONS,

and without the need to rule on the other grounds:

REVERSES AND ANNULS, in all of its provisions, the judgment of the Paris Court of Appeal of 7 July 1992; returns consequently, the case and the parties back to their status quo ante and, for the proceedings to be determined in accordance with the law, transmits them back to the Paris Court of Appeal, otherwise composed;