The View From Europe: What's New in European Arbitration?

• Published in: Dispute resolution journal 2021-01, Vol.75 (4), p.143-159
• Main Authors: Wilske, Stephan, Ebert, Björn P, Peter, Natasha, Stouten, Thomas, tún, Alberto, Martín, Julia
• Format: Magazinearticle
• Language: English
• Subjects: Agreements; Arbitration; Jurisdiction; Market entry; Public policy; State court decisions
• ISSN: 1074-8105; 2573-606X

RG 18/01504), the Paris Court of Appeal (the "Court") refused to enforce an arbitral award because the Arbitral Tribunal had designated the seat of arbitration and decided that the arbitration should be ad hoc instead of institutional, without first hearing submissions on these issues from the parties. On appeal, Mr. Al Misnad argued that the order for enforcement should be set aside for several reasons; namely that: (1) the First Tribunal lacked jurisdiction as SEGQ had accepted the application of the QICA Rules, so the First Tribunal did not have jurisdiction to decide sitting in its capacity as an ad hoc tribunal, nor to establish the seat of the arbitration in Tunis; (2) the First Tribunal was irregularly constituted because it refused to sit under the QICA Rules, despite the parties' agreement to these rules; (3) the First Tribunal failed to comply with the mandate conferred on it because it usurped the authority of the Second Tribunal, failed to issue its award on time, and failed to comply with the procedural rules chosen by the parties; (4) the First Tribunal did not respect due process because it made a unilateral decision concerning the seat of arbitration and the ad hoc nature of the arbitration; and (5) the enforcement of the award would be contrary to international public policy. The French courts have consistently emphasised the high threshold for the annulment of an arbitral award, or a refusal to enforce an award, on public policy grounds: there must be a breach that is "manifest, effective and concrete" and where the award is international, the breach must be such as to offend principles that the French courts consider to be a matter of public policy in an international (and not merely a domestic) context. Claimant then commenced arbitration requesting declaratory relief that Respondent's terminations are invalid and without effect and in order to recover damages resulting from the delays in the drug approval process.