Court of Cassation, No. 95-17.207

Court of Cassation, Second Civil Chamber, 23 October1996, No. 95-17.207

ENTREPOSE MONTALEV (PLC)

vs.

HERBRETEAU (PLC)

MR. PATRICK X (Judicial administrator)

MR. CHARLES Y (Representative of the creditors)

The claimant invokes, in support of its appeal, the single ground of cassation annexed to the present judgment.

On the sole ground, taken in its two parts:

The judgment under appeal (Paris, 23 May 1995) is challenged for having rejected the action for setting aside, brought by the company Entrepose Montalev, against the arbitral award rendered in the dispute between it and the company Herbreteau. Then, according to the ground, “that, firstly, since he intends to base his decision on the statements of an unofficial expert’s report, the arbitrator, who is bound to respect and ensure the respect of the adversarial principle, has the obligation to order, in accordance with Article 1460, paragraph 3, of the new Code of Civil Procedure, the communication to the opposing party of the documents in the light of which the unofficial expert issued in its report. In deciding otherwise, and by mentioning Montalev was able to debate on the unofficial expert’s report, the domestic judges violated articles 16, 1460 paragraph 2, 1460,paragraph 3, and 1502 of the new Code of Civil Procedure.

Second, if the arbitrator does not intend to use his power to order the production of a document, in accordance with article 1460, last paragraph, of the new Code of Civil Procedure, the arbitrator, who is bound to respect and ensure respect for the adversarial principle, must exclude the informal report from the proceedings after having noted the absence of spontaneous communication; that in deciding to the contrary, and by mentioning that Entrepose Montalev was able to discuss the unofficial expert’s report, the domestics judges violated articles 16, 1460, paragraph 2, 1460, paragraph 3, and 1502 of the new Code of Civil Procedure”.

However, none of the texts referred to in the ground requires the arbitrators to require the party that refers to an unofficial technical study, to produce the elements used in its preparation, if the opposing party merely denies its probative value.

In noting that Entrepose Montalev limited itself to challenge, in a general and global way, the probative nature of the study produced by Herbreteau, without making a precise and detailed complain of it despite the time to do so. Moreover, this company, which did not produce itself any technical opinion, took the risk of opposing the arbitrator’s order for an inquiry. Thus, the court of appeal, in the light of these findings, was able to decide that the arbitrator, who accepted in part the conclusions of this study, did not violate due process (adversarial principle).

Hence the ground is unfound;

FOR THESE REASONS:

Dismisses the appeal;

Orders the company Entrepose Montalev to pay the costs;

According to article 700 of the new Code of Civil Procedure, orders the company Entrepose Montalev to pay the company Herbreteau the sum of 12000 francs;

Thus done and judged by the Court of Cassation, Second Civil Chamber, and pronounced by the president in its public hearing of 23 October 1996.