Court of Cassation, No. 09-12.716

Court of Cassation, First Civil Chamber, 4 November 2010, No. 09-12.716

The Italian Company Tecnimont Spa

Vs.

The Greek Company J & P Avax (Avax)

THE COURT OF CASSATION, FIRST CIVIL CHAMBER, delivered the following judgment:

On the first ground, taken in its second and third parts:

Having regard to Article 4 of the Code of Civil Procedure;

Whereas the Italian company Tecnimont Spa and the Greek company J & P Avax (Avax) entered into a subcontracting agreement relating to the construction of a factory, this agreement included an arbitration clause; that, following a dispute, the company Tecnimont implemented an arbitration proceeding under the supervision of the International Chamber of Commerce and that, after the appointment of two arbitrators, Mr. A… was appointed as chairman of the arbitral tribunal; that an application for the recusal of Mr. A…, filed on 14 September 2007, was rejected; that a partial award was made on 10 December 2007 on the principle of liability;

Whereas, in order to find the ground of annulment admissible, the judgment notes firstly that Avax requested information from the arbitrator on 16 July 2007 concerning the program of an international conference held in London on May 2007, and, then, that Avax filed a request for recusal together with a request to replace Mr. A… on 14 September 2007, which the ICC rejected in a decision of 26 October 2007, the reasons for which were not made known to the parties, moreover, on 31 October 2007, Avax declared that it reserved its rights, continued the arbitration in protest, and then, questioned the Chairman of the arbitral tribunal again concerning his links to Tecnimont by letters dated 20 November 2007, 22 January 2008 and 25 January 2008, to which Mr. A… replied on 18 October, 21 December 2007, 22, 29 January and 20 March 2008, gradually distilling revelations about the precise nature of the activities of Jones X… with Tecnimont and its parent and subsidiary companies; that the Court of Appeal inferred from this that, since the criticized situation was not known to the appellant before the partial award of 10 December 2007 was rendered, and Avax not having waived its right to challenge Mr. A…’s independence, the ground of annulment based on the irregular composition of the arbitral tribunal was admissible;

That in so ruling, when almost all the facts denounced were included in the application for recusal filed on 14 September 2007, the Court of Appeal, which modified the subject matter of the dispute, violated the above-mentioned text;

FOR THESE REASONS and without it being necessary to rule on the other grievances:

REVERSES AND ANNULS, in all its provisions, the judgment delivered on 12 February 2009, between the parties, by the Paris Court of Appeal; returns, consequently, the proceedings and the parties back to their status quo ante and, for the proceedings to be determined in accordance with the law, transmit them to the to the Reims Court of Appeal;

Orders J & P Avax to pay the costs;

In view of article 700 of the code of civil procedure, rejects the request of J & P Avax and orders it to pay the company Tecnimont Spa the sum of 3,000 euros;

States that, based on the request of the public prosecutor at the Court of Cassation, this decision will be transmitted to be transcribed in the margin or following the quashed decision;

Thus done and judged by the Court of Cassation, First Civil Chamber, and pronounced by the president, in its public hearing of 4 November 2010.