Court of Cassation, No. 01-03.262

Court of Cassation, First Civil Chamber, 3 November 2004, No. 01-03.262

Challenged decision: Paris Court of Appeal, 18 January 2001, No. 1999/20545

AUCHAN

Vs.

PUERTO LOISIRS

On the three grounds taken in their various parts:

Whereas by arbitration award of 19 July 1999, rendered in Geneva (Switzerland), the company AUCHAN, whose headquarters are based is in Croix (59), was ordered to pay various sums to the company PUERTO LOISIRS incorporated under Moroccan law, which requested the enforcement (in French Exequatur) from the President of the Paris Tribunal of Grande Instance; that the order was served on the company AUCHAN with the erroneous mention of the legal remedies concerning the awards rendered in France, in matters of internal arbitration; that the judgment under appeal (Paris, 18 January 2001) is challenged because it rejected the actions for annulment of the enforcement order (in French Ordonannce d’exequatur) and its service and because it confirmed the enforcement order (in French Ordonannce d’exequatur) of the award. According to the grounds:

  1. that by failing to examine the issue of the ground resulting from the failure to indicate the appropriate remedy (Appel-nullité or Pourvoi en cassation) to be applied to discuss in an adversarial debate the question of jurisdiction, the Court of Appeal deprived its decision of a legal basis regarding articles 680, 16 of the new Code of Civil Procedure and 6 of the ECHR;

  2. that even if, for foreign awards, only the decision of enforcement (in French Exequatur) is subject to appeal, the court of appeal had the obligation to control the regularity of the order ; that, as soon as the enforcement (in French Exequatur) is directed against a person domiciled in France, the court of his/her domicile has exclusive jurisdiction. So by stating that the enforcement order (in French Ordonannce d’exequatur) was, as such, not subject to any appeal and that the Paris Tribunal of Grande Instance had jurisdiction, the court of appeal violated articles 42, 43, 455, 542, 543, 1498 and 1502 of the new Code of Civil Procedure and did not give a legal basis for its decision ;

  3. that the contradiction of reasons amounting to an absence of reasons, in deciding that this complaint was beyond the control of the Court of Cassation, the Court of Appeal violated articles 1134 of the Civil Code, 1502- 5 of the new Code of Civil Procedure and 8 of the Geneva Convention of 21 April 1961;

But whereas on the first ground, that the complaint is new, mixed in fact and therefore inadmissible, it is also noted that the decision considered that the company AUCHAN had, in view of the service, regularly appealed, within the time limit and according to the forms and methods prescribed in international arbitration. Thus, the material error affecting the report of service did not cause it any complaint;

Whereas, on the second ground, that in international arbitration, apart from any fraud, the president of the Paris Tribunal of Grande Instance is qualified to rule on a request for recognition or enforcement of an arbitral award made abroad, since the legislator did not institute, contrary to the regime for awards made in France, any specific territorial jurisdiction, since article 42 of the new Code of Civil Procedure has no privileged vocation to apply in this matter and since the choice of this jurisdiction was appropriate in view of the international character of the dispute;

On the other hand, the court of appeal noted that the only action available against the order granting enforcement (in French Exequatur) of an award made abroad is the action provided for in Article 1502 of the new Code of Civil Procedure, in the case of the award itself and not the order granting enforcement. The enforcement order (in French Ordonnance d’exequatur) as such is therefore not subject to any appeal, in particular as regards the territorial jurisdiction of the court seised. Thus, the court of appeal rightly decided that the first judge did not exceed his jurisdiction and that, notwithstanding the domicile of Auchan, the defence of lack of jurisdiction tending to the nullity of the enforcement order (in French Ordonnance d’exequatur) must be set aside; that the ground is not justified in any of its parts;

Whereas, on the third ground, except in cases, defined by article 1502 of the new Code of Civil Procedure, of violation of due process (in French Principe de la contradiction) or of international public policy, the content of the reasoning of the arbitral award is beyond the review of the judge of the regularity of the award; whereas the ground based on a contradiction between the reasons of the arbitral decision was therefore inadmissible, so that, the challenged judgment is legally justified;