Paris Court of Appeal, No. 17/19850 | Rory Wheeler, avocat (Paris) & solicitor (England)

Paris Court of Appeal, Pole 1 - First Chamber, 21 May 2019, No. 17/19850

Judicial chronology:

Paris Tribunal of Grande Instance, 19 May 2010
Paris Court of Appeal, Pole 1 - First Chamber, 24 November 2011, No. 10/16525
Court of Cassation, First Civil Chamber, 26 June 2013, No. 12-16.224
Versailles Court of Appeal, First Chamber, First section, 29 October 2015, No. 13/07885 Court of Cassation, First Civil Chamber, 1 June 2017, 16-13.729

EGYPTIAN GENERAL PETROLEUM CORPORATION
vs.
NATIONAL GAS COMPANY (NATGAS)

The Egyptian National Gas Company (ENGC) signed, on 6 January 1999, with an amendment of 24 September 2001, a natural gas supply contract for the supply of two regions in the East of Egypt with the Egyptian General Petroleum Corporation (EGPC), a public establishment under Egyptian law managing gas and oil activities in Egypt.

As the value of the Egyptian pound was modified by a decree of the Egyptian authorities on 28 January 2003, ENGC attempted to obtain at the end of December 2007 the coverage of the increase in its financial charges, pursuant to Article 7 of the contract. Faced with EGPC’s refusal, it filed on 2 February 2008, pursuant to the arbitration clause stipulated in Article 20 of the contract, a request for arbitration under the supervision of the Cairo Regional Centre for International Commercial Arbitration (CRCICA).

In an award issued in Cairo on 12 September 2009, the arbitral tribunal composed of Messrs. X and Z-A, arbitrators, and Mr. Y, president:

dismissed the plea of inadmissibility of the request for arbitration based on EGPC’s status as a public entity;
dismissed the plea of nullity of the contract based on the non-conformity with the Egyptian Constitution of Article 2 of the Implementing Regulations of the Natural Gas Law No. 217 of 1980;
ordered EGPC to pay ENGC the sum of 253,424,668.31 Egyptian pounds (approximately 30 million euros), plus interest at the rate set by the Central Bank of Egypt;
dismissed the plea of nullity of the arbitration clause, the requests for termination of the contract for the appointment of a commission of experts;
ordered the arbitration costs to be shared.

The enforcement order (in French: Ordonnance d’exequatur) of this award issued by the judge of Paris Tribunal of Grande Instance (in French: Président du Tribunal de Grande Instance de Paris) dated 19 May 2010 was appealed by EGPC on 6 August 2010.

In a decision dated 24 November 2011, the Paris Court of Appeal confirmed the enforcement order (in French: Ordonnance d’exequatur).

By judgment issued on 26 June 2013 on the appeal filed by EGPC, the First Civil Chamber of the Court of Cassation reversed and annulled in its entirety the judgment issued by the Paris Court of Appeal and referred the case to the Versailles Court of Appeal, ruling as follows on the first ground invoked alleging a violation of the due process:

“Having regards to Articles 1520-4 and 1518 of the Code of Civil Procedure;
Whereas, in order to reject the ground for annulment based on the violation of the due process, the judgment holds that the arbitral tribunal is under no obligation to submit its reasoning to a prior discussion between the parties;

In so deciding, whereas the arbitral tribunal, without an adversarial debate, based its decision on the unused provisions of Articles 21 and 27 of the CRCICA arbitration rules, the Court of Appeal violated the above-mentioned texts”.

On 29 October 2015, the Versailles Court of Appeal upheld the order issued on 19 May 2010, ordering EGPC to pay the costs and compensation under Article 700 of the Code of Civil Procedure.

By judgment issued on 1 June 2017 on EGPC’s appeal, the First Civil Chamber of the Court of Cassation reversed and annulled in its entirety the judgment issued by the Versailles Court of Appeal on 29 October 2015 and transmitted the case and the parties to the Paris Court of Appeal.

The cassation focused on the second ground of cassation, under articles 1520-1 and 1525 of the Code of Civil Procedure, in the following terms:

“Whereas it is up to the judge to review the arbitral tribunal’s decision on its jurisdiction by examining all the legal and factual elements that make it possible to assess the scope of the arbitration agreement;
Whereas, in order to confirm the enforcement order (in French: Ordonnance d’exequatur) of the award, the judgment holds that the circumstance, presumably established, that the contract has been transmitted, does not affect the effectiveness of the arbitration clause, but determines the EGPC’s standing to defend the proceedings, which it was for the arbitral tribunal to assess and which cannot be challenged before the enforcement judge (in French: Juge de l’exequatur) on the basis of article 1520, 1°, of the code of civil procedure;
That in so ruling, the Court of Appeal has violated the aforementioned texts”.

EGPC petitioned the court of appeal on 25 October 2017.

In its final submissions No. 3 notified on 12 March 2019, EGPC requested the court to overturn the order made, to declare that the arbitral award of 12 September 2009 cannot be upheld or enforced in France and to order ENGC to pay it the sum of EUR 100,000 under Article 700 of the Code of Civil Procedure, as well as to bear the entire costs of the proceedings.

First of all, EGPC claims that the Arbitral Tribunal erroneously declared itself competent, on the basis of articles 1520-1 and 1525 of the Code of Civil Procedure, to hear the dispute between EGPC and ENGC when, on the one hand, the arbitration clause had been transferred to company A for all the rights and obligations arising from the Contract and, on the other hand, this clause is vitiated by a nullity of public policy.

EGPC submits secondly that the arbitrators disregarded due process (in French: Principe de contradiction), on the basis of Articles 1520-4 and 1525 of the Code of Civil Procedure by rejecting the plea of lack of jurisdiction raised on the basis of grounds of law raised ex officio and, disregarded due process. This breach also arises from the arbitrators’ allowing ENGC to produce a considerable number of documents, some of which were illegible, at the hearing at which they were to be the subject of expert debate, and without drawing the consequences which EGPC had to face in those circumstances. This also constitutes a breach of the principle of equal treatment of the parties.

In its final submissions notified on 11 March 2019, ENGC requested the court to uphold the enforcement order (in French: Ordonnance d’exequatur) issued by the judge of the Paris Tribunal of Grande Instance (in French: Président du Tribunal de Grande Instance) on 19 May 2010 and to order EGPC to pay it the sum of EUR 200,000 under Article 700 of the Code of Civil Procedure and to pay the costs of these proceedings.

ENGC replied that the ground alleging that the arbitral tribunal lacked jurisdiction was ill-founded. On the one hand, the arbitral tribunal ruled on the basis of an existing arbitration agreement since the assignment of the contract mentioned between EGPC and A to which it had not given its consent was not binding on it and EGPC had continued to perform its obligations under the contract. On the other hand, ENGC asserted the arbitral tribunal had ruled on the basis of a valid agreement.

ENGC replied to the second ground that the arbitral tribunal had respected the due process both by dismissing the plea of lack of jurisdiction raised belatedly by EGPC and by giving the parties the necessary time to study and discuss the documents submitted by ENGC at the hearing.

UPON WHICH

On the ground based on what the arbitral tribunal wrongly declared that it had jurisdiction (Articles 1502-1 and Article 1502-5, now 1520-1 and 1520-5 of the Code of Civil Procedure):

On the first part of the ground:

EGPC claims that the arbitral tribunal should have declared that it had no jurisdiction in the absence of an arbitration clause between EGPC and ENGC, since the Contract had been assigned by EGPC to A, with transmission to the latter of the arbitration clause. Indeed, by virtue of a substantive rule of arbitration, the arbitration clause is transmitted as an accessory to the contract containing it or to the rights arising therefrom. In the present case, this assignment took place by the sole effect of the decree of the President of the Council of Ministers No. 1009 of 19 July 2001 and the order of the Egyptian Minister for Petroleum of 9 August 2001. ENGC wrongly claims that this transfer required its prior agreement and failed to provide evidence of the contractual payments which it mentions.

ENGC replies in substance that the question of jurisdiction was never raised by EGPC before the arbitral tribunal, that the arbitral tribunal ruled on the basis of an existing arbitration agreement, and that ENGC did not give its consent as required by the Contract. It follows from Article 21 of the said Contract that it was concluded intuitu personae, that A was in no way responsible for performing the contractual obligations of EGPC, which remained ENGC’s counterparty. EGPC, which continued to perform part of its contractual obligations, in particular the payment of the contract price, cannot claim to have been released from the effect of the Contract and therefore of the arbitration clause inserted therein, following the assignment between it and A.

It is up to the enforcement judge (in French: Juge de l’exequatur) to review the decision of the arbitral tribunal on its jurisdiction, whether it declared that it had jurisdiction or not, by examining all the elements of law or fact that make it possible to assess the scope of the arbitration agreement and to deduce the consequences of this on the compliance with the mission entrusted to the arbitrator.

The arbitration clause is legally independent of the main contract containing it, so that the existence and effectiveness of the clause are assessed subject to the mandatory rules of French law and international public policy, according to the common intention of the parties, without it being necessary to refer to domestic law.

EGPC, a public establishment under Egyptian law, and ENGC, a public limited company under Egyptian law, entered into a contract on 6 January 1999 by which the former entrusted the latter with the construction, operation and maintenance of a natural gas supply network on Egyptian territory for the supply of residential, commercial and industrial areas and power stations.

Article 20 of this agreement stipulates that: “If the parties are unable to find a solution, any dispute, controversy or claim arising between the Public Establishment and the Company in connection with the Contract, or any element relating thereto, or the failure to comply with the terms and conditions thereof, or its termination or cancellation, shall be resolved by arbitration in accordance with the rules of the Cairo Regional Commercial Arbitration Centre (hereinafter the “CRCICA”)”.

On the basis of this clause, the arbitral tribunal found that it had jurisdiction to examine ENGC’s request for EGPC to bear the additional costs incurred by EGPC as a result of the change in the exchange rate of the Egyptian pound on the loans denominated in US dollars and euros that it had contracted with third parties for the financing of its project.

Firstly, assuming it had been established, the fact that this contract would have been assigned by EGPC to holding company A, by virtue of a decree of the President of the Council of Ministers n°1009 of 19 July 2001 and an order of the Egyptian Minister of Petroleum of 9 August 2001 taken in application of this decree, did not affect the effectiveness of the arbitration clause stipulated in the contract of 6 January 1999.

Moreover, neither the decree of 19 July 2001 creating the holding company A nor the order of the Egyptian Minister of Petroleum of 9 August 2001 do not provide for the assignment of the EGPC Contract to A and do not substitute A for EGPC in the entirety of its rights and obligations under the Contract. The order of the Egyptian Minister of Petroleum specified that A had to" supervise, monitor and propose measures to modernise the activity of the works undertaken by the companies engaged in the activities of transport, distribution, transmission and marketing of natural gas “, within and outside the Republic”, and will have to perform its duties with respect to ENGC, a company on the list whose activities it will have to control, monitor or develop.

Secondly, it is established that EGPC has continued to perform its contractual obligations towards ENGC under the Contract of 6 January 1999 following the decree of the President of the Council of Ministers No. 1009 of 19 July 2001, the order of the Egyptian Minister of Petroleum of 9 August 2001 and the creation of the holding company A, as well as following the signature of the Amendment No. 2 of 4 April 2004 to which A is a party.

Thus, while ENGC issued invoices in the name of customer A, the company also drew up statements of “actual investment expenditure relating to the natural gas distribution network”, expressly referring to Amendment No. 2 to the Contract, on behalf of EGPC for the period from 2005 to June 2009 (Exhibit No. 15 produced by ENGC), some of which included the amounts appearing in the invoices issued in the name of A.

EGPC, for its part, issued at least 23 settlement cheques between December 2004 and May 2011, payable to ENGC, which cashed them.

It is not important that these cheques issued by EGPC do not coincide exactly with the amounts appearing in the financial documents produced by ENGC. On the one hand, the statements correspond to the investment costs chargeable under the Contract. On the other hand, EGPC does not seriously contradict the fact that these payments could only have been made under the Contract and its amendments.

Therefore, EGPC and ENGC voluntarily continued between them the performance of their contractual obligations arising from the initial contract of January 6, 1999, including after the signature of the Amendment No. 2 of 4 April 2004. Consequently, the arbitral tribunal did not rule in the absence of an arbitration agreement.

On the second part of the ground:

EGPC claims that the Contract as well as the arbitration related to its performance must be recognised as purely internal and remain subject to the public policy regime applicable to them. It also considers that the arbitral tribunal disregarded a mandatory Egyptian rule, valid as part of public order (in French: Loi de police), and that it ruled on a null and void arbitration agreement, in the absence of having received the approval of the competent minister, a ground which justified the annulment of the arbitral award by the Cairo Court of Appeal on 27 May 2010.

ENGC replies that the arbitration is an international arbitration, that Egyptian law can in no way be regarded as offending the French conception of international public policy. Moreover, ENGC considers that the rule imposed by Egyptian domestic law, even though it is part of domestic public order, is not sanctioned by international public policy. ENGC adds that the annulment of the award by the Egyptian judges has consequence.

First, the provisions of articles 1498 et seq., now 1514 et seq., of the Code of Civil Procedure on the recognition and performance of arbitral awards are applicable both to international arbitral awards and to awards issued abroad, irrespective of their domestic or international character.

The regularity of such awards is examined with regard to the rules applicable in the country where their recognition and performance are sought because the purpose of the enforcement (in French: Exequatur) is to accept foreign awards in the French legal system only under the conditions it has set.

Thus, enforcement (in French: Exequatur) in France of the award issued on 12 September 2009 cannot be refused to the on the grounds that it was set aside by a decision of the Cairo Court of Appeal on 27 May 2010, since French international arbitration law, which is more favourable, does not provide such a ground for refusing to recognise and enforce the award issued abroad. This opinion is based on Article VII, 1, of the New York Convention of 10 June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards, to which Article 33 on the recognition and performance of arbitral awards of the Convention of 15 March 1982 between the French Republic and the Arab Republic of Egypt on Judicial Cooperation in Civil Matters refers.

Secondly, in application of the principle of validity of the arbitration agreement, the will of the parties is sufficient to validate this agreement, which is removed from the influence of domestic law. Consequently, the fact that Egyptian law requires a ministerial authorisation for the conclusion by a public establishment of a contract, which provides for arbitration for the settlement of disputes relating to that contract and its performance, is irrelevant to the assessment of the effectiveness of the arbitration clause by the French court, irrespective of whether the award issued in Egypt is domestic or international in nature.

Moreover, the arbitration at issue is not purely internal to Egypt since the operation was not settled economically in this country alone.

In fact, under article 7.15 of the Contract the technical expertise is held by Nord Italy Gas, S.P.A., an Italian company. ENGC has the obligation to keep it as a ‘partner and shareholder of its company’. According to the translation of the contract produced by EGPC during the discussions, ENGC shall keep it without interruption throughout the period of performance of the contract and that if it fails to do so, the public establishment will be entitled to terminate the Contract without ENGC being able to oppose it.

Furthermore, the arbitral tribunal held that the financing was part of the works necessary for the realisation of the project that EGPC had entrusted to ENGC under the Contract. It also held that the financing fell within the object and scope of the works covered by the Contract, contrary to what EGPC claimed. From those elements, the arbitral tribunal highlighted on pages 21 to 24 of the arbitral award the foreign components of the project. The first component is the financing resulting from the loan granted by the Italian bank Efibanca and the ‘supplier facilities’ granted by the Italian company CTIP Oil & Gas. The second component is the Italian suppliers, CTIP Oil & Gas and the Italian company Sicon Oil & Gas. The arbitral tribunal pointed out that EGPC is designated as the Engineer in charge of supervising the contractual works in the two main contracts relating to the implementation of the project signed with these companies.

EGPC’s argument on the nullity of the arbitration clause in that it is based on the internal nature of the arbitration is therefore irrelevant.

Since the ground based on the absence or nullity of the arbitration clause is not well-founded in any of its parts, the arbitral tribunal did not therefore wrongly declare that it had jurisdiction.

On the ground alleging breach of due process (in French: Principe de contradiction) (Article 1502-4, now 1520-4):

On the first part of the ground:

EGPC claims that the arbitrators disregarded due process (in French: Principe de contradiction) by rejecting the plea of lack of jurisdiction it raised on the basis of grounds of law stated ex officio. The arbitral tribunal also relied on Article 21 of the CRCICA Rules to dismiss the plea of lack of jurisdiction raised by EGPC, even though this text, which had been raised ex officio, was neither invoked nor debated by the parties. Article 22 of the Egyptian Arbitration Law was invoked by ENGC without EGPC’s knowledge and EGPC was unable to debate it, and the question of the applicability of these two texts to a public policy plea had never been discussed. EGCP asserts that those elements are relevant even though it was disclosed after the first decision issued by the Court of Cassation on 26 June 2013 that the tribunal had ruled in favour of a provision of Egyptian arbitration law which had been invoked by ENGC in its post-hearing statement.

ENGC replies that the provisions on which the tribunal relied to dismiss the plea of lack of jurisdiction raised belatedly by EGPC had been invoked by the parties in their post-hearing submissions. It also mentions that the reference to Article 21 of the CRCICA Rules which provides the same rule as that of Article 22 of Law No. 27 of 1994 cannot form the basis of the complaint. ENGC adds that the arbitral tribunal responded to the alleged public policy nature of this plea solely on the basis of the texts submitted to the debates.

In the alternative, ENGC asserts that the plea of incompetence was unfounded and was raised after the closure of the debates was late. Thus, it had to be set aside in order to comply with due process.

Due process (in French: Principe de contradiction) only requires that the parties should be able to state their claims in fact and in law and comment those of the opposing party in such a way that anything which influenced the decision of arbitrators was subjected to adversarial debate. The arbitrators do not have to submit their reasoning in advance to an adversarial discussion between the parties.

Equality of arms implies the obligation to provide each party with a reasonable opportunity to present its case - including evidence - under conditions which do not place it at a substantial disadvantage in relation to its opponent.

The following chronology should be recalled:

at the end of the pleadings hearing held on 12 and 13 April 2009, the arbitral tribunal decided to close the pleadings, giving each party the opportunity to present a final statement to discuss the new points raised during the pleadings; a timetable was set with the agreement of the parties, the new exhibits that the parties intended to produce in support of their post-hearing statement had to be submitted no later than 14 May 2009 and the post-hearing statement had to be filed on 28 May 2009;
on 2 May 2009, the new counsel appointed by EGPC sent a letter to the arbitral tribunal in which it requested, inter alia, to be able to complete its defence and a new hearing, claiming that the arbitration clause was absolutely null and void;
on 14 May 2009, EGPC filed a financial report in response to the report of the claimant company prepared by its chartered accountant;
on 20 May, the arbitral tribunal indicated by letter in response to the new EGPC board that it found no grounds for modifying the procedural decisions taken at the close of the pleadings hearing concerning the filing of documents and final statements;
the parties submitted their final statements on 28 May in accordance with the timetable;
In its final statement, EGPC claimed the ground that the arbitral tribunal did not have jurisdiction to hear the dispute because of the absolute nullity of the arbitration clause as a matter of public policy, in so far as the competent minister did not sign it, stating that this ground, which was invoked for the first time, could be invoked in any event and at any time;
in its final pleading, ENGC claimed the inadmissibility of this belatedly submitted plea by invoking Article 22 of the Arbitration Act.

The arbitral tribunal ruled on the ground of the nullity of the arbitration clause, considering it relevant to refer to Article 22 of Law No. 27 of 1994 but also to Article 21 of the CRCICA Arbitration Rules and rejected the plea of lack of jurisdiction “on the grounds that it was not supported nor was it the subject of a reservation by the Respondent to EGPC arbitration within the time limit defined in §2 of Article 22 of the Law and §3 of Article 21 of the Arbitration Rules”.

Firstly, it is no longer discussed that ENGC referred, in its post-hearing submission of 28 May 2019, to Article 22 of Egyptian Law No. 27 of 1994, from which it follows that pleas of lack of jurisdiction, including those relating to the non-existence, forfeiture or nullity of the arbitration agreement, must be raised no later than the date of submission of the defence submissions referred to in § 2 of Article 30 of the said Law. The company claimed that the defendant in the arbitration was in any event prohibited from now invoking any ground for nullity. It also considers that the time limit for the submission of the statement of claim expired on 7 October 2008. Moreover, it states that “oral argument hearings were held during which the defendant did not invoke any plea of nullity of the arbitration agreement or of the lack of jurisdiction of the arbitral tribunal, but that, on the contrary, the defendant confirmed at the beginning of all the hearings that it had no objection to the manner in which the proceedings had been conducted (…) Consequently, the defendant’s right to rely on the plea of nullity of the arbitration agreement has fallen. Moreover, there is no valid excuse that would justify invoking such a plea late. We therefore insist on the inadmissibility of such an exception.”

Thus, the arbitral tribunal did not raise any legal grounds of its ex officio. On the contrary, in support of its decision on the belated nature of the plea of nullity raised by EGPC, the tribunal cited Article 22 of the law and, in passing, Article 21 of the CRCICA Arbitration Rules. Article 21 of the CRCICA Arbitration Rules on the ‘PLEAS AS TO THE JURISDICTION OF THE ARBITRAL TRIBUNAL’ sets out the same procedural rules as those contained in Article 22 of the Law as to the jurisdiction of the arbitral tribunal to rule on its own jurisdiction and the time limit within the plea of lack of jurisdiction must be presented to the arbitral tribunal, i.e “not later than in the statement of defence or, with respect to a counter-claim, in the reply to the counter-claim.”

Secondly, it follows from the terms of the post-hearing brief of 28 May 2009 that EGPC itself has for the first time put in the debate the question of the admissibility of the plea of public policy with regard to its possible delay. It argued that this objection could be raised “in any event and at any time, as long as the proceedings are at the pleading stage, even by means of pleadings”. EGPC therefore erroneously maintains that the court ruled on this issue and raised a ground ex officio without the parties having been able to explain it.

To reject the plea of lack of jurisdiction on the grounds of the nullity of the arbitration clause for lack of approval by the Minister, the arbitral tribunal did not base its decision solely on the lateness of the plea raised, but examined EGPC’s legal arguments on this point. It also replied that “It is established in doctrine and case law that the administration, party to a contract, is solely responsible for obtaining the approval of the competent minister regarding the arbitration clause when it is stipulated in an administrative contract. Consequently, nullity cannot sanction such a clause in the event that the administration concerned fails to obtain approval.”

No breach of the principle of contradiction and equality of arms is therefore established on this ground.

On the second part of the ground:

EGPC claims that the court flagrantly violated the public policy principles of due process and equality of arms by basing its opinion on illegible accounting documents, which were not communicated to it in due time. EGPC also reports that its counsel and expert present at the hearing were not able to analyse them. Moreover, EGPC considers that the arbitral did not state on its request for an expert opinion and based its assessment of the damages solely on the information drawn from the accounting documents produced by ENGC.

ENGC replies that the arbitral tribunal gave the parties the necessary time to study and discuss the documents submitted at the hearing. Moreover, ENGC mentions that EGPC reports unjustified factual allegations and that the arbitral tribunal was free to refuse EGPC’s request for the appointment of an expert, which was moreover submitted late by EGPC.

Firstly, it appears from the procedural exchanges between the arbitral tribunal and the parties, the transcript of the proceedings at the hearing on 12 and 13 April 2009, and the arbitral award that:

By letter dated 21 January 2009, the arbitral tribunal requested each of the parties to appoint its experts or to request the arbitral tribunal to appoint an expert itself. The tribunal set a time limit for their response. ENGC appointed a chartered accountant who filed his report communicated to EGPC on 10 March 2009 and that EGPC appointed two chartered accountants who broadly defined their mission and who drew up a report filed on 23 March 2009 commenting on the report filed by ENGC;
On the first day of the hearing, the company submitted numerous accounting documents which were in fact promissory notes, which it confirmed during the hearing that they were those presented to the expert in the light of which the latter had prepared his report, document by document, explaining each document, its amount and all its conditions and amendments;
On the second day of the hearing, the parties stated that they had no objections or reservations to make regarding the procedure followed until then, a statement which was noted in the minutes of the hearing. EGPC requested a period of time to consult the documents submitted the day before and compare them with the documents previously attached to the report of ENGC’s chartered accountant;
During the hearing, the parties questioned their respective experts and discussed the expert reports produced;
At the end of the hearing, the arbitrators authorised the parties to produce new documents and to submit a final statement to reply, if necessary, to the points raised during the pleadings and EGPC then filed on 14 May 2009 a second financial report in response to the one drawn up by the expert appointed by ENGC.

Thus, it appears that the parties were given the opportunity to discuss all the grounds, arguments and documents produced and that EGPC was given the opportunity to present its grounds and evidence under conditions which did not place it at a substantial disadvantage in relation to ENGC. Contrary to what EGPC claims, it was able to question the expert appointed by ENGC during the oral hearing in the light of the report which it already had and to which its experts had themselves replied. EGPC did not express any reservations about the illegibility of the documents submitted (an allegation which is not proven) either when it filed its report on 14 May or in its final report. Its only request made at the hearing for additional time to examine the new documents submitted was granted and that it was able to file an additional report on this point. Thus, its counsel and expert enabled to examine, analyse and respond in due time to all of the accounting documents communicated to it.

Secondly, the arbitrators cannot be blamed for a breach of due process (in French : Principe de contradiction) by considering that the request for an expert opinion presented at the end of the hearing of the pleadings of 13 April 2009 by EGPC, whose chartered accountant gave a lengthy explanation of the documents produced, was late and dilatory. The discussions made it unnecessary the expert assessment entrusted to a panel of experts as requested by EGPC because the arbitral tribunal examined each of the missions proposed for the additional expertise by EGPC and stated the reasons why it was not necessary to resort to it.

Finally, the claim that the arbitral tribunal based its assessment of ENGC’s loss solely on information taken from ENGC’s accounts and the Deloitte report, under the guise of a breach of due process (in French: Principe de contradiction) and equality of arms, in reality seeks a review of the merits of the award.

The second part of the ground must therefore be dismissed.

It follows from all the foregoing that the enforcement order (in French: Ordonnance d’Exequatur) must be upheld.

On costs and Article 700 of the Code of Civil Procedure:

EGPC who is unsuccessful shall bear the costs and cannot benefit from Article 700 of the Code of Civil Procedure. He will be ordered to pay ENGC an indemnity of EUR 150,000 under Article 700 of the Code of Civil Procedure.

FOR THESE REASONS:

Upholds the enforcement order (in French: Ordonnance d’exequatur) issued by the President of the Paris Tribunal de Grande Instance on 19 May 2010.

Orders the public establishment Egyptian General Petroleum Corporation (EGPC) to pay the company ENGC an indemnity of EUR 150,000 under Article 700 of the Code of Civil Procedure.

Orders the Egyptian General Petroleum Corporation (EGPC) to pay the costs.