Court of Cassation, No. 16-17.108

Court of Cassation, First Civil Chamber, 15 June 2017, No. 16-17.108

The Republic of Equatorial Guinea

Vs.

Orange Middle East and Africa

Summary:

A party to an arbitration who has acknowledged, in the terms of reference, that the constitution of the arbitral tribunal was in order and that it had no objection to the arbitrators, shall be deemed to have waived its claim regarding the arbitrators' lack of independence and impartiality.

Consequently, a court of appeal rightfully decides that an action for annulment based on the irregularity of the constitution of the arbitral tribunal cannot be allowed; and all considerations based on the time limits of the arbitration rules on the recusal are overabundant.

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

Whereas, according to the decision under appeal (Paris, 22 September 2015), the Republic of Equatorial Guinea concluded a settlement agreement, stipulating an arbitration agreement, with the company France cables et radio, now Orange Middle East and Africa (the company), both shareholders of a telecommunications company; whereas the latter has filed a request for arbitration before the International Chamber of Commerce (the ICC);

On the sole ground, taken in its first and third branches, hereafter annexed:

Whereas these grievances are manifestly not of such a nature as to lead to cassation;

On the second branch of the ground:

Whereas the Equatorial Republic of Guinea complains that the decision dismissed the action for annulment of the award, then, according to the ground, the action for annulment of an arbitral award is open if the tribunal was improperly constituted; that the arbitrator must disclose any circumstances likely to affect his independence or impartiality; that there is no specific obligation for the parties to inform themselves about the arbitrators, as long as the information provided to them by the arbitrator or other parties to the proceedings is not such as to create a doubt about the arbitrator’s independence and impartiality; that in this case, it is common that Mr. B., President of the arbitral tribunal, had indicated in his statement of 14 July 2013 that he had nothing to disclose that might call into question his independence or give rise to a reasonable doubt as to his impartiality; that on 21 August 2013, the board of the company France cables et radio took the initiative to inform the lawyers of the Republic of Equatorial Guinea that Mr. B. had been appointed arbitrator of the arbitral tribunal. Mr. B. had, in fact, been designated arbitrator in a case concerning the company Orange, which had given rise to an award in 2007, but that these were different markets and types of contracts unrelated to the present arbitral proceedings, so that Mr. B.’s independence and impartiality were not in doubt; that the Republic of Equatorial Guinea should have raised any objections within the 30 day period from 21 August 2013, provided for in article 14 of the ICC rules, and that it was otherwise supposed to have waived this period, when it was nevertheless not required to carry out any particular investigations following the information communicated on 21 August 2013, and that it was only on the occasion of a procedural order of 24 January 2014, that it had appeared biased, that the Republic of Equatorial Guinea discovered the precise circumstances of this previous arbitration and in particular that it had dealt with the same subject and that the Spanish press had echoed the exaggeratedly favorable nature of the award delivered to the Orange company, so that by seizing the ICC secretariat on 25 January 2014, the Republic of Equatorial Guinea acted well within the thirty days period provided for in the ICC rules, the Court of Appeal violated articles 1456 and 1520-2, of the Code of Civil Procedure;

But whereas the decision notes that if, in his declaration of independence of 14 July 2013, the President of the arbitral tribunal indicated that he did not have to disclose any facts or circumstances of such a nature as to call into question his independence or to raise reasonable doubt in the minds of the parties as to his impartiality, the company’s counsel, by letter of 21 August informed the Republic of Equatorial Guinea that the President had been appointed several years earlier by the ICC in arbitration proceedings unrelated to the current one, but involving its parent company; having noted that the press articles published on this arbitration, not to assume that they were notorious, were easily accessible and that the Republic of Equatorial Guinea, notwithstanding the information received, had acknowledged in the terms of reference of 24 October 2013 that the constitution of the arbitral tribunal was in order and that it had no objection to the arbitrators, the Court of Appeal, which deduced that it was deemed to have waived the ground of lack of independence and impartiality, decided exactly that the action for annulment based on the irregularity of the constitution of the arbitral tribunal could not be upheld; that the ground, which attacks the superabundant grounds of the decision, is inoperative;

FOR THESE REASONS:

DISMISSES the appeal;

ORDERS the Republic of Equatorial Guinea to pay the costs;

Pursuant to article 700 of the Code of Civil Procedure, rejects its request and orders it to pay the company Orange Middle East and Africa the sum of 3,000 euros;

Thus done and judged by the Court of Cassation, First Civil Chamber, and pronounced by the President in his public hearing of 15 June 2007.