Court of Cassation, No. 15-21.880

Court of Cassation, First Civil Chamber, 1 February 2017, No. 15-21.880

Judicial Chronology:

Paris Court of Appeal, 1 January 1999

Award, 16 April 2013, Paris

Paris Court of Appeal, 23 June 2015, No. 13/09748

Court of Cassation, 9 July 2015, No. 15-01.495

CNAN GROUP

INTERNATIONAL BULK CARRIER

vs.

PHARAON COMMERCIAL INVESTMENT GROUP LIMITED

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

Whereas, according to the judgment under appeal and the productions, the Algerian companies CNAN Group (CNAN), CTI Group Inc. (CTI) of the Cayman Islands and Saudi Z… Commercial Investment Group Limited (Z…), concluded a partnership agreement pursuant to which CNAN created the Algerian company International Bulk Carrier (IBC), of which the companies CTI and Z…, and Mr. X… acquired part of the share capital under a share transfer agreement providing for the granting by them of a loan to the company IBC; that, complaining of its non-repayment, the companies CTI and Z… filed a request for arbitration with the International Chamber of Commerce under the arbitration clause of the share transfer agreement; that, by an award rendered in Paris on 16 April 2013, the arbitral tribunal declared it had jurisdiction, terminated the loan agreements to the detriment of IBC and ordered it to pay various sums to Z… and CTI, terminated the transfer agreement and ordered the return of IBC shares to CNAN; that CNAN and IBC brought an action for annulment against the award;

On the first ground, hereafter annexed:

Whereas CNAN and IBC complain that the judgement was handed down by the Court of Appeal composed of Mr. D…, President, and Mrs. E…, Counsellor, and that it dismissed the action for annulment;

Whereas the Court of Cassation (2nd Civ., 9 July 2015, application No. 15-01. 495) having rejected the application filed on 3 October 2014 by CNAN and IBC for the disqualification of Mr. D… and Mrs. E…, in the proceedings relating to the action for annulment brought against the award pronounced on 16 April 2013, the ground became ineffective;

But on the second ground:

Having regard to Article 954(3) of the Code of Civil Procedure;

Whereas the parties must set out in their final submissions the claims and grounds previously presented or invoked in their previous submissions; failing this, they are deemed to have waived them and the Court of Appeal shall rule only on the final submissions filed;

Whereas, in order to dismiss the action for annulment of the award, the Court of Appeal ruled on the basis on the submissions filed by CNAN and IBC on 7 April 2015;

That in so ruling, even though these companies duly filed and served, on the following 6 May, new submissions, and for reasons which do not allow to establish that these were taken into account, the Court of Appeal violated the above-mentioned text;

FOR THESE REASONS and without having to rule on the third ground:

REVERSES AND ANNULS, in its entirety, the judgement handed down on 23 June 2015 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 CTI Group Inc. to pay the costs;

In view of article 700 of the Code of Civil Procedure, rejects the application;

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

Thus done and judged by the Court of Cassation, First Civil Chamber, and pronounced by the president in its public hearing of 1 February 2007.