Court of Cassation, No. 12-13.351 | Rory Wheeler, avocat (Paris) & solicitor (England)

Court of Cassation, First Civil Chamber, 10 July 2013, No. 12-13.351

Challenged decision: Paris Court of Appeal, Pole 1, First Civil Chamber, 17 January 2012, No. 10/21349

Emirates Telecommunications Corporation

vs.

Planor Africa Corporation

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

On the first ground, taken in its first part, after notice given to the parties pursuant to article 1015 of the Civil Procedure Code:

Regarding article 625 of the Civil Procedure Code;

Whereas, according to the judgment under appeal (Paris, 17 January 2012), on 10 February 2004, the shareholders, including Atlantique Telecom, of the company Telecel Faso, in charge of the installation of a mobile telephone network in Burkina Faso, concluded an agreement fixing the rules of operation of the company as well as the relations between shareholders, which stipulated an arbitration clause referring to arbitration according to the rules of the Common Court of Justice and Arbitration of the OHADA; that, by an agreement on 26 August 2004, Atlantique Telecom transferred to Planor Afrique 44% of its shares in the capital of Telecel Faso; that the shareholders of the latter, meeting in ordinary and extraordinary general meetings on 27 January 2006, decided to increase the capital, reducing the share held by Planor Afrique to 20% and modified the composition of the board of directors;

On 5 September 2007, the Emirati company Etisalat, the majority shareholder of Atlantique Télécom, and Planor Afrique signed a memorandum of understanding, including an arbitration clause under the supervision of the International Chamber of Commerce, under the terms of which they agreed to settle their disputes relating to the company Telecel Faso, with the withdrawal of all proceedings. Planor Afrique agreed to subscribe for new shares of Telecel Faso up to 44% of the capital, then to reduce its participation to 32% by selling 12% of its shares to Atlantique Télécom, to which Etisalat agreed to acquire at a price to be fixed by agreement between the parties or by an expert, and failing agreement on this price, the agreement was to be terminated; that the Ouagadougou Regional Court, seised by the company Planor Afrique on 27 December 2007, by judgment of 9 April 2008, confirmed by judgment of 19 June 2009 of the Ouagadougou Court of Appeal, rejected the ground of lack of jurisdiction based on the existence of an arbitration clause, considering that the company Planor Afrique neither had nor was aware of it, nor had accepted it. The Ouagadougou Regional Court ordered the exclusion of the companies Atlantique Télécom and Etisalat from the capital of Telecel Faso and the forced sale of their shares and fixed their price to be paid by the Planor Afrique; that the appeal was rejected by a decision of 10 June 2010 of the Common Court of Justice and Arbitration of OHADA ;

That the President of the first instance tribunal of Paris, by order, on 29 June 2011, granted the enforcement (in French Exequatur) of the Burkinabe decisions of 9 April 2008 and 19 June 2009, pursuant to the agreement on Cooperation in the Field of Justice signed on 24 April 1961 between France and Burkina Faso; that the company Etisalat, invoking the breach of the memorandum of understanding of 5 September 2007, implemented the arbitration clause stipulated by the parties and an award delivered on 9 September 2010 in Paris, between the companies Etisalat and Planor Afrique, recognised the validity of their agreement, found the violation by the latter of its obligations and ordered to take steps to achieve the “closing” of its commitments; that this arbitral award was declared enforceable by an order issued by the President of the first instance tribunal on 14 October 2010;

Whereas, to set aside the arbitral award issued on 9 September 2010 and the order granting enforcement (in French Exequatur) on it, the judgment holds that it results from the non-compliance of the award with the judgment of the Court of Appeal of Ouagadougou of 19 June 2009, that its recognition and enforcement violates international public policy in an effective and concrete manner;

Whereas the order granting enforcement (in French Exequatur) to Burkinabe decisions was overturned by the Court of assation (1st Civ, 28 March 2013, n° 11-25.123, 11- 23.801), and that the contested judgment is connected by a necessary link of dependence; that this cassation leads consequently to its annulment;

FOR THESE REASONS and without the necessity to rule on the other grievances:

REVERSE AND ANNUL, in its entirety, the judgement handed down on 17 January 2012 between the parties by the Paris Court of Appeal; return, consequently, the proceedings and the parties to their status quo ante and, for the proceedings to be determined in accordance with the law, transmit them to the Paris Court of Appeal, otherwise composed;

Orders the company Planor Afrique to pay the costs;

Based on article 700 of the Civil Procedure Code, rejects the requests;

States that on the request of the Public Prosecutor at the Court of Cassation, the present decision will be transmitted to be transcribed in the margin or following the annulled decision;

Thus made and judged by the Court of Cassation, first civil chamber, and pronounced by the president in his public hearing of ten July two thousand and thirteen.