Court of Cassation, No. 18-10.985

Court of Cassation, First Civil Chamber, 13 February 2019, No. 18-10.985

Challenged decision: Montpellier Court of Appeal, First Chamber, 12 October 2017, No. 17/00269

COMPANY ZWAHLEN & MAYR

Vs.

BOUYGUES TRAVAUX PUBLICS REGION FRANCE

On the admissibility of the appeal, challenged by the defence:

In view of Articles 1455 and 1460 of the Code of Civil Procedure;

Whereas the judge (in French: Juge d’appui) rules by an order not subject to appeal, except when he declares that there is no need for appointment because the arbitration agreement is manifestly null and void;

Whereas, according to the judgment under appeal (Montpellier, 12 October 2017), Bouygues Travaux Publics Régions France (Bouygues) and the Swiss company Zwahlen & Mayr (Zwahlen) concluded a grouping agreement during a public works operation, which included an arbitration clause providing for the appointment of the arbitrator by the claimant from a list of eleven individuals; whereas, following a dispute between the parties, Bouygues applied this clause and chose an arbitrator; Zwahlen, contesting this appointment, brought an action before the President of the Tribunal de Grande Instance, acting as a supporting judge, to annul the arbitration agreement and, in the alternative, to challenge the arbitrator; by order of 5 January 2017, the arbitrator found the arbitration clause to be manifestly null and void because it violated the principle of equality of the parties in the constitution of the arbitral tribunal and ruled that there was no need to appoint an arbitrator;

Whereas the company Zwahlen filed an appeal in the Court of Cassation against the decision rejecting its claims for annulment of the arbitration clause and challenge of the arbitrator;

Whereas the decisions of the Court of Appeal, which, having been petitioned on appeal of the orders issued by the president of the court pursuant to Article 1454 of the Code of Civil Procedure, rules within the limits of its powers, are not subject to appeal to the Court of Cassation unless they declare that there is no need to appoint an arbitrator for one of the reasons provided for in Article 1455 of the same Code; that the grounds of cassation are directed against the provisions of the judgment stating that the arbitration clause is not manifestly null or inapplicable and rejecting the subsidiary claim for challenge of the appointed arbitrator, and that such grounds of cassation do no characterise an abuse of power by the Court of Appeal an abuse of power, lead to the result that the appeal is inadmissible;

FOR THESE REASONS:

DISMISSES the appeal;