Paris Court of Appeal, No. 14/05996

Court of appeal Paris, 14 April 2015, n° 14/05996

Republic of Mali vs S.A. GROUPE TOMOTA

Following a submission to an international call for tenders launched by the State of Mali for the privatization of 84.13% of the capital of SA HUICOMA, a state company whose activity is the transformation and production of ‘vegetable oil from the industrial treatment of cottonseed, the Malian company Tomota SA (Tomota) signed on 16 May 2005, with the Malian State, a notarized memorandum of understanding setting the conditions the sale of shares.

A dispute between the parties, Tomota filed a request for arbitration with the Common Court of Justice and Arbitration (CCJA) sitting at X, in accordance with the arbitration agreement stipulated in article 14.2 of the protocol of 16 May 2005.

The Arbitral Tribunal, appointed by the CCJA, issued on 8 November 2013 to X an award under the terms of which, after retaining its territorial and material jurisdiction and ruling out the inadmissibility drawn from the prescription, it retained the conduct deceitful and disloyal of the State of Mali towards Tomota, both during the tender process intended for the privatization of HUICOMA, during the negotiation of the memorandum of understanding or even during the sale of the shares of this company on 16 May 2005 and consequently ordered it to compensate Tomota for its losses.

By an order of the President of the Tribunal de Grande Instance of Paris of 20 January 2014, Tomota obtained the enforcement (exequatur) in France of the award.

By declaration of 17 March 2014, the State of Mali appealed against this decision.

In the meantime, the State of Mali has, on 22 January 2014, lodged an appeal against the award before the CCJA.

Having regard to the submissions of the Republic of Mali served by Z on 21 January 2015, in which it asks to the Court to set aside the exequatur order issued on 20 January 2014, in the alternative, to pronounce the stay of enforcement of this order and in the very alternative, to order Tomota to provide financial guarantees and to pay a sum of 3,000 euros in application of article 700 of the Code of Civil Procedure.

Having regard to the submissions of Tomota served by Z on 27 February 2015 in which it asks the Court to reject the requests of the Republic of Mali, to grant enforcement (exequatur) of the OHADA CCJA award of the 8 November 2013 by confirming the enforcement order of 20 January 2014 and to condemn the Republic of Mali to pay the sum of 50,000 euros on the basis of Article 700 Code of civil proceedings as well as the entire costs of the proceedings.

UPON WHICH

On the alleged nullity of the enforcement order:

Whereas the Republic of Mali maintains that the enforcement order must be declared null and void because the CCJA has sole jurisdiction to grant enforcement pursuant to Article 25 of the Title IV of the Treaty of the Organization for the Harmonization in Africa of Business Law of 17 October 1993 (the OHADA Treaty), which provides that “The arbitral award is not enforceable by force of law but by virtue of an enforcement decision issued by the competent judge in the State Party” and which is supplemented by Article 30 of the Rules of Arbitration of the CCJA giving jurisdiction to the president of the court to whether or not to grant the enforcement of an arbitral award rendered under its supervision, to the exclusion of all others courts; that it claims, moreover, that it is not there are no criteria for linking the case to the French courts, both in terms of the French courts the parties to the dispute, the seat of arbitration or by an arbitrator. possible recourse to the provisions of Articles 14 and 15 of the Civil Code;

Whereas, however, that if Article 25 of Title IV of the OHADA Treaty grants the CCJA exclusive jurisdiction over that of the national courts of the States Parties, to pronounce the enforcement of the arbitral awards it has rendered, this exclusive jurisdiction is only intended to be imposed on the States Parties to the OHADA Treaty, without being able to be opposed to a State that is not party to the Treaty on whose territory the beneficiary of the arbitral award intends to enforce it;

That as a result, the president of the Tribunal De Grande Instance of Paris, competent by application of article 1516 of the Code of Civil Procedure, to grant enforcement to an arbitration award rendered abroad, did not disregard the extent of his jurisdictional power nor committed an excess of power by pronouncing on the request which had been referred to him by Tomota in accordance with the principles of jurisdiction and the procedural rules of French law;

That it is, therefore, indifferent that the dispute only concerns States, or nationals of States having adhered to the OHADA Uniform Act or that there is no criterion of attachment to the French courts with regard to the parties the dispute or the seat of the arbitration or the criteria of subsidiary jurisdiction of Articles 15 and 16 of the Code of Civil Procedure when the award which constitutes an international court decision is not attached to the legal order of the seat of arbitration and that Articles 14 and 15 of the Civil Code, which only lay down rules of exorbitant subsidiary jurisdiction of the French courts because of the French nationality of one of the parties, are not intended to apply in this case;

On the appeal of the enforcement order

On the first ground alleging breach by the Arbitral Tribunal of its mission (article 1520-3 of the Code of Civil Procedure):

The Republic of Mali maintains that the Arbitral Tribunal ruled as amiable compositeurs without the parties having given their agreement on this point in the arbitration agreement or subsequently;

Whereas it emerges from the minutes of 18 January 2013 noting the subject of the dispute and setting the course of the arbitration procedure established in accordance with article 15 of the OHADA Rules that the parties have chosen to apply Malian law the substance of the dispute;

That they did not therefore make use of the faculty which was reserved for them by article 17 of the Arbitration Rules of the Common Court of Justice and Arbitration to confer on the arbitrators the powers of amiable compositeur;

That for all that, the Republic of Mali refrains from describing in its writings in what manner the tribunal would have failed in its mission by having ruled in equity, limiting itself to making reference, which is inoperative with regard to the prescriptions of article 954 of the Code of Civil Procedure, to the arguments developed in its reply memorandum filed on 13 June 2014 before the CCJA;

That the ground which is lacking in fact must be dismissed;

On the second ground alleging breach of due process (in French: principe de contradiction) (Article 1520-4 of the Code of Civil Procedure):

The Republic of Mali argues that in order to estimate and stop Tomota’s financial losses, the arbitral tribunal relied, in disregard of the provisions of article 16 of the Malian Code of Civil, Commercial and Social Procedure (CPCCS) ‘which’ requires the judge, in all ‘circumstances, to ensure the respect’ and respect himself ‘the principle of due process regarding non-contradictory expert reports, the report having been drawn up without the presence of the Republic of Mali.

Whereas in the present case, the Republic of Mali, which as has just been said, cannot proceed by way of reference to the Memorandum in Reply of 13 June 2014 filed in the context of its appeal before the CCJA, does not demonstrate how the expert’s report, the conduct of which it refrained from criticizing before the arbitral tribunal, would not have been conducted in opposition to it and in which it would not have been able to discuss usefully the report filed by the expert Mr. CD being noted that the latter was present at the hearing and that it follows from the reasons for the award that his report, submitted to the debates, was the subject of an adversarial debate between the parties;

That the ground must be, consequently, dismissed;

On the third ground, alleging opposition to the recognition or enforcement of the award under international public order (Article 1520-5 of the Code of Civil Procedure):

The Republic of Mali objects that the Arbitral Tribunal found that - despite the non-assistance to the WTDC for the supply of seed cotton that – the State failed to authorise HUICOMA to import seeds from abroad, whereas this ban has never been proven by a any submissions or documents filed by the parties. The State therefore maintains that the tribunal relied upon unproven facts, causing its decision to contravene international public order;

Whereas under cover of the complaint made to the court that the tribunal relied on unproven facts, the appellant criticizes the reasoning of the award - and actually invites the court to review the merits of the award, which the annulment judge is prohibited from doing;

That the ground and the request to set aside must be dismissed;

Whereas it follows from the foregoing that the appeal of the enforcement order must be rejected and the order confirmed.

On the stay of enforcement:

Whereas the Republic of Mali requests the Court to suspend its ruling on the enforcement of the enforcement order of 20 January 2014 pending the decision to intervene by the CCJA on the appeal against the arbitration award;

That it is based on Article 28 of the OHADA Uniform Act and considers that no provisional enforcement (in French: execution provisoire) was provided for in the operative part of the award, nor ordered by the Arbitral Tribunal; that it underlines, moreover, that Article VI of the New York Convention of 10 June 1958 simply requires the existence of a procedure for annulment or suspension of the award to allow the judge seized of the enforcement rule on the request for a stay submitted to it; that it considers finally that there are serious presumptions that the CCJA will annul the arbitration award and that the premature enforcement of the award would be likely to cause it extreme damages;

Whereas it requests, in the alternative, that with regard to the feeble solvency of Tomota, the latter be required to provide all the necessary guarantees;

Whereas it does not fall within the powers of the court that dismisses the appeal against the enforcement order of an award rendered abroad, and which is relieved of its powers by the effect of its decision, to stay the enforcement of the enforcement order for the time or until the occurrence of a determined event or to arrange this enforcement by subordinating it to the constitution of a guarantee;

Whereas this request must be dismissed;

Whereas the unsuccessful Republic of Mali must bear the costs without being able to claim compensation under Article 700 of the Code of Civil Procedure and will be ordered on this same basis to pay Tomota the sum of 50,000 euros;

FOR THESE REASONS

Holds that there is no need to stay the proceedings;

Confirms the order of the president of the Tribunal de Grande Instance of Paris of 20 January 2014 which granted the exequatur to the award rendered between the parties on 8 November 2013;

Orders the Republic of Mali to pay the costs which will be recovered in accordance with the provisions of article 699 of the Code of Civil Procedure, and to pay the sum of 50,000 euros to the company Tomota SA in application of article 700 of the Code of Civil Procedure;

Reject all other requests.