Paris Court of Appeal, No. 08/18544 | Rory Wheeler, avocat (Paris) & solicitor (England)

Paris Court of Appeal, Pole 1, First Chamber, 29 October 2009, No. 08/18544

Judicial Chronology:

Paris Court of Appeal, Pole 1, First Chamber, 11 May 2006, No. 05/13780

Paris Court of Appeal, Pole 1, First Chamber, 14 May 2009, No. 08/06824

Paris Court of Appeal, Pole 1, First Chamber, 14 January 2010, No. 08/06826

Paris Court of Appeal, Pole 1, First Chamber, 17 March 2011, No. 09/24746

Court of Cassation, First Civil Chamber, 12 October 2011, No. 10-14.687

Court of Cassation, First Civil Chamber, 12 October 2011, No. 09-72.439

Paris Court of Appeal, Pole 1, First Chamber, 18 March 2014, No. 12/16225

Court of Cassation, First Civil Chamber, 25 June 2014, No. 11-16.444

Court of Cassation, First Civil Chamber, 4 May 2017, No. 15-29.158

SOCIETE GROUPE ANTOINE TABET

vs.

THE REPUBLIC OF CONGO

In a partial award handed down in Paris on 8 December 2003, the arbitral tribunal constituted under the supervision of the International Chamber of Commerce (ICC) by Mr. Y, chairman, and Messrs. Z and E, arbitrators in the dispute between the company GROUPE ANTOINE TABET (ANTOINE TABET) and the REPUBLIC OF CONGO, ordered ANTOINE TABET, point 3 of the award, “to give, within fifteen calendar days of the notification of this partial award, to Total Fina Elf E&P Congo (with a copy to the Republic of Congo) irrevocable written instructions to pay into the escrow account to be opened by the parties with the President of the Bar Association at the Paris Court of Appeal, in accordance with the provisions of the Procedural Order to be issued shortly by the arbitrator tribunal, any amount exceeding the amount of €16.007,146.81 that Total Fina Elf E&P Congo may be required to pay to ANTOINE TABET in execution of a court decision rendered by a Swiss national court. The interest on the escrowed amount is added to the principal sum, and the escrow terminates upon instruction and in accordance with the terms issued by the Arbitral Tribunal no later than fifteen days after notification of the final award”.

This arbitral award, which was granted enforcement (in French Exequatur), was appealed. This action for annulment wad dismissed by a final decision of the Paris Court of Appeal dated 11 May 2006.

At the same time, by procedural order No. 10 of 11 December 2003, concerning point 3 of the partial award of 8 December 2003, the chairman of the arbitral tribunal :

ORDERS the Parties to sign the Escrow Agreement in the form of the text annexed to this Order, or any other form agreed by the Parties and the Escrow, within ten days of notification of this Order, and to notify the arbitral tribunal thereof.
In the event that Total Fina Elf E&P Congo transfers to ANTOINE TABET a sum greater than €16,007,146.81 before the Escrow Agreement is entered into, ORDERS ANTOINE TABET to deposit the difference between the sum paid and €16,007,146.81 in the hands of the President of the Bar Association at the Paris Court of Appeal, acting as Receiver, under the conditions set forth in the text annexed to this Order.

ANTOINE TABET filed an action for annulment relating to point 2 of this order on the grounds of a violation of the mission entrusted to the arbitrators (article 1502-3 of the Code of Civil Procedure).

It requests the Court to declare its action admissible, to reclassify provision 2 of the Order as an arbitral award and, with reference to articles 1502-3 of the Code of Civil Procedure and article 27 of the ICC Rules of Arbitration, to set aside the said provision and, in the very alternative, to note that the order cannot be granted enforcement (in French Exequatur) and, consequently, is not enforceable. It requests 30.000€ under article 700 of the Code of Civil Procedure.

The REPUBLIC OF CONGO considers that the action for annulment is inadmissible and unfounded and requests 30.000€ by application of article 700 of the Code of Civil Procedure.

UPON WHICH

On the admissibility of the appeal:

By mentioning that by judgment of 22 November 2007, the 8th Chamber of the Paris Court of Appeal in a judgement dated 22 November 2007 attached to the 8 December 2003 arbitral award a penalty payment of €10,000 per day of delay to be borne by ANTOINE TABET and that by judgment of 8 July 2008 the enforcement judge of the Paris Tribunal of Grande Instance liquidated the penalty payment at €1,000. 000 for the period from 2 February to 17 June 2008, holding that point 2 of the procedural order taken as part of the partial award of 8 December 2003, ANTOINE TABET maintains that point 2 of the procedural order in fact constitutes an arbitral award imposing on ANTOINE TABET a new obligation not provided for in the arbitral award of 8 December 2003.

However, considering that only true arbitral awards, i.e., the acts of the arbitrators who decide definitively, in whole or in part, the dispute submitted to them, whether on the merits, on jurisdiction or on a procedural point that leads them to terminate the proceedings, can be the subject of an action for annulment;

Whereas point 3 of the partial arbitral award of 8 December 2003 provides that ANTOINE TABET instructs Total Fina Elf E&P Congo within fifteen days of the award to pay into the escrow account to be opened with the President of the Paris Bar Association any amount exceeding €16,007,146.81 paid to ANTOINE TABET pursuant to a decision of the Swiss courts;

That the procedural order of the chairman of the arbitral tribunal dated 11 December 2003, incidentally provided for in point 3 of the arbitral award, ordering the deposit by ANTOINE TABET of any excess of the sums received from Total Fina Elf E&P Congo in the hands of the President of the Bar before the conclusion of the escrow agreement, merely adjusts the transitional period between the issuing of the arbitral award and the conclusion of the said escrow agreement, to ensure the effectiveness of the arbitral award by avoiding the payment of sums exceeding €16,007,146.81.007,146.81 that could be paid to ANTOINE TABET by Total Fina Elf E&P Congo during this period are not subject to the escrow obligation;

In so doing, the chairman of the arbitral tribunal who has acted in accordance with the provisions of article 23 1 of the ICC Rules of Arbitration has in no way added to the obligations arising out of the arbitral award and has not settled all or part of the dispute ;

That this order, which therefore does not need to be recharacterised, is not, as a consequence, subject to the action provided for in article 1502 of the Code of Civil Procedure ;

That the action for annulment is therefore inadmissible;

And considering that there is no need to take into account the act requested in the context of the present action for annulment since it is declared inadmissible;

On applications under article 700 of the Code of Civil Procedure:

Considering that ANTOINE TABET who succumbs and whose application on this ground is dismissed is ordered to pay 30.000€ to the REPUBLIC OF CONGO ;

FOR THESE REASONS:

DECLARES inadmissible the action for annulment of the Procedural Order n°10 of 11 December 2003;

ORDERS GROUPE ANTOINE TABET to pay 30.000€ to the REPUBLIC OF CONGO;

DISMISSES any other request;

ORDERS the company GROUPE ANTOINE TABET to pay the costs and admits the SCP Bernabé, Chardin, Cheviller, solicitor, for the benefit of article 699 of the Code of Civil Procedure.