Court of Cassation, No. 09-72.439

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

Groupe Antoine Tabet

Vs.

Republic of Congo

Total E&P Congo

Summary

An action for annulment may be brought only against true arbitral awards, consisting of the acts of the arbitrators which decide definitively, in whole or in part, the dispute submitted to them, whether on the merits, on jurisdiction or on a procedural ground which leads them to put an end to the proceedings. Consequently, the arbitrator’s decision which, by ordering the deposit of money, merely adjusts the transitional period between the making of the arbitral award and the conclusion of a sequestration agreement to ensure the effectiveness of the award cannot be the subject of such an action.

Full text

Whereas the Lebanese company Groupe Antoine Tabet (GAT), which finances public works, particularly in Africa, signed financing agreements with the Republic of Congo in 1992 and 1993. The Republic of Congo entrusted an oil company to pay the instalments of the loan, a mission accepted the oil company. A dispute has arisen because the Republic of Congo considered that it had overpaid. The oil company, which stopped paying, was ordered by the Swiss courts to pay GAT a sum of more than 64 million Swiss francs. These decisions were declared enforceable in France, since the appeals were rejected by two judgments of 4 July 2007 (05-14,918, 05-17,433 and 05-16,585). At the same time, the Republic of Congo initiated arbitration proceedings in Paris, under the supervision of the International Chamber of Commerce (ICC), in which it requested the reimbursement by GAT of sums paid without reason. In a first award of 30 March 2000, the arbitral tribunal ruled on its jurisdiction. In a second award of 4 June 2002, the arbitral tribunal ordered the Republic of Congo to pay a sum in excess of 16 million euros, without penalty, including interest, to be calculated by the parties within a certain period of time. The judgment of 14 May 2009 which dismissed GAT’s action for annulment is the subject of appeal (in French Pourvoi en cassation) No. S 09-66.567. A third award of December 8, 2003, which ordered GAT in particular to pay into an escrow account any sums that might be paid to it by the oil company in excess of the provision of 16 million euros, was the subject of an action for annulment rejected by an irrevocable decision of the Paris Court of Appeal on 11 May 2006. By a procedural order of 11 December 2003, the chairman of the arbitral tribunal ordered GAT, pending the signature of the escrow agreement, to deposit the sums paid in excess of 16 million euros to the President of the Bar;

On the unique ground, taken in its first part :

Whereas Gat complains that the judgment under appeal (Paris, 29 October 2009) declared the appeal for annulment against the decision of 11 December 2003 inadmissible, while, according to the ground of appeal, an award is a decision by which the arbitrator definitively decides all or part of the dispute on the merits or a procedural incident which puts an end to the proceedings. An award is thus a decision by which the arbitrators order one of the parties to deposit, upon receipt of payment, a sum to be paid to it. Point 2 of Arbitration Order No. 10 of 11 December 2003 ordered GAT to deposit with the President of the Paris Bar, acting as Receiver, any amount paid to it by Total Fina E&P Congo in excess of EUR 16,007,146.81, prior to the conclusion of the escrow agreement referred to in the provisional award of 8 December 2003. This decision, which required GAT to pay a deposit which had not been decided by the award of 8 December 2003, thus constituted a partial award, which settled part of the principal sum. Nevertheless, in declaring inadmissible the action for annulment brought against this award, the Court of Appeal breached Articles 1504 and 1502 of the Code of Civil Procedure.

But whereas, after having rightly stated 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 means which leads them to terminate the proceedings, may be the subject of an action for annulment, the judgment notes that the partial arbitration award of 8 December 2003 provides that GAT shall instruct the oil company Total Fina Elf E&P Congo, within a certain period of time, to pay into an escrow account to be opened any sum exceeding 16 million euros paid to GAT pursuant to a decision of the Swiss courts; The judgment under appel notes that the order of December 11, 2003, announced in the arbitral award, ordering GAT to deposit any excess amounts received from the oil company in the hands of the President of the Bar pending the conclusion of the escrow agreement, nmerely adjusts the transitional period between the making of the arbitral award and the conclusion of the escrow agreement, to ensure the effectiveness of the award, by preventing any excess amounts that may be paid to GAT during this period from escaping the escrow obligation. Thus, the chairman of the arbitral tribunal added nothing to the obligations resulting from the award of 8 December 2003 and did not settle all or part of the dispute, the court of appeal rightly inferred that there was no reason to reclassify the order as an arbitral award, so that the appeal was inadmissible; that the ground was unfounded;

On the unique ground, taken in its second part, hereafter annexed :

Whereas the complain made against the decision constitutes an omission to rule which can be repaired in the forms of article 463 of the code of civil procedure and which does not lead to a cassation; that the ground is not admissible;

FOR THESE REASONS :

DISMISSES the appeal;

Orders GAT to pay the costs;

Pursuant to article 700 of the code of civil procedure, dismisses the claim;

Thus made and judged by the Court of Cassation, first civil chamber, and pronounced by the president in its public hearing of the twelve October two thousand and eleven.