Court of Cassation, No. 12-16.944 | Rory Wheeler, avocat (Paris) & solicitor (England)

Court of Cassation, First Civil Chamber, 13 March 2013, No. 12-16.944

REPUBLIC OF CAMEROON

vs.

SPRL PROJET PILOTE GAROUBE

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

On the two grounds together, taken in their various parts, hereafter annexed:

Whereas, according to the challenged judgment (Paris, 21 February 2012), on 14 November 2001, a contract was concluded between the State of Cameroon and the Cameroonian company, Projet pilote Garoube, which later became a Belgian company and whose head office was transferred to Belgium, on a farming lease related to the rearing of wild fauna in a 40,000-hectare protected area of hunting interest in the North of Cameroon and containing an arbitration clause. The company, invoking the abusive termination of the farming lease convention and the obstacles put by the Republic of Cameroon to the valuation of its business and assets, filed a request for arbitration with the International Chamber of Commerce on 13 November 2007. By a partial award handed down in Paris on 16 February 2010, an arbitral tribunal admitted the continuity of the legal personality of the company, retained its jurisdiction, ordered the Republic of Cameroon to pay it a certain sum for costs incurred at this stage of the proceedings and suspended the proceedings on the merits to a later hearing. On 27 September 2010, the arbitral tribunal, composed identically, issued an “addendum” to the partial award of 16 February 2010 increasing the amount to be pay by the Republic of Cameroon; that the latter filed an action for annulment against the two awards;

Whereas the company Projet Pilote Garoube is contesting the decision to set aside the arbitral award of 16 February 2010 and the addendum of 27 September 2010;

Whereas the judgment notes, firstly, that in a letter dated 28 July 2010, the company Projet Pilote Garoube requested the International Court of Arbitration to replace the President of the arbitral tribunal, whose ability to conduct the investigation of the case within a reasonable period was disputed, and to postpone any new provision at his expense. Secondly, the judgement notes that, in a letter dated 2 August 2010 addressed to the Court of Appeal, Mr. X…, arbitrator appointed by the company Projet pilote Garoube, alleged the existence of a flagrant imbalance between the two parties on the grounds that the Republic of Cameroon, in a situation of manifest superiority, had considerable means at its disposal on the ﬁnancial, administrative and legal levels, while the company was a small or medium enterprise. Mr. X… then relayed the request made by the latter on 28 July 2010 relating to the burden of provisions, then proposed to invite the Republic of Cameroon to pay its share of the advance payment of the costs intended to cover the fees and disbursements of the arbitrators and to authorize the company Projet pilote Garoube to postpone the decision on the payment of its fees until the ruling of the Court of Appeal of Paris, finally blamed the State of Cameroon for the delays in the proceedings. Thirdly, the judgement notes that the International Court of Arbitration challenged Mr. X… and ﬁxed on 1 September 2011 his fees, and the company Projet Pilote Garoube, which had constantly objected to the requests for advances on arbitration costs, requested, by letter of 6 September 2011, an increase in the fees for the period from the date of the partial award to 1 September 2011, i.e. for the period during which Mr. X… acted as arbitrator. Then the Court of Appeal noted that the slowness of the arbitral proceedings was not attributable to the State of Cameroon and having confronted these three letters, while noting that the bias to which Mr. X’s letter testifies and the eagerness of the company Projet Pilote Garoube to favour the material interests of the arbitrator it had chosen, were indicative of the links that united them. Without distorting the facts and without disregarding due process (in French Principe de contradiction), the Court of Appeal, which did not have to carry out the research that its findings rendered inoperative, found with discretion that the arbitrator failed to fulfil his obligations of independence and impartiality, and that the composition of the arbitral tribunal was irregular. Thus, the award of 16 February 2010 had to be set aside;

And whereas the Court of Appeal, in holding that the annulment of this award consequently carries with it the annulment of the addendum issued by the same panel and whose purpose was to interpret and modify it, the Court of Appeal, which did not have to carry out research that its findings rendered inoperative, rightly set it aside; the grounds of appeal are unfounded;

FOR THESE REASONS:

REJECTS the appeal;

Orders the company Projet pilote Garoube to pay the costs;

In view of Article 700 of the Code of Civil Procedure, orders it to pay to the Republic of Cameroon the sum of 3,000 Euros and rejects its request;

Thus, done and judged by the Court of Cassation, First Civil Chamber, and pronounced by the president in its public hearing of the thirteenth of March two thousand and thirteen.