1. This overview of the published decisions of French courts is intended to cover 2008, but will extend slightly back into 2007, due to the fact that there is a lapse of time between the rendering of decisions and their publication. We will focus on matters of interest to those who administer arbitral proceedings, whether as members of an arbitration institution or of an arbitral tribunal.

2. To put our presentation in context, it is worth beginning with a few words about trends in French case law concerning international arbitration. Such case law derives of course from the Court of Cassation, 1 but also from the appeal courts that hear applications for the enforcement or setting aside of awards. Foremost amongst these is the Paris Court of Appeal, which, for understandable reasons, hears the great majority of cases relating to international arbitration and has been responsible for many important developments. Case law is characterized by a very favourable stance towards arbitration, which State courts regard as the normal method for resolving international trade disputes and which they therefore do not view as a competitor. This pro-arbitration stance can be seen in two ways.

3. One is the wish to give maximum effectiveness to arbitration clauses. This is reflected in two principles. The first is the 'validity of the arbitration agreement', meaning that a party cannot attempt to evade the clause, or delay its application, on the ground that it is flawed and must therefore be referred to the courts. The second is the 'inherent effectiveness' of arbitration clauses at international level. This expression is used to justify extending the effects of the clause beyond what would result from a narrow interpretation of both the persons concerned and the disputes covered. This positive attitude taken by the French courts towards arbitration clauses has been affirmed through substantive rules specific to international arbitration, as opposed to the traditional route of conflict of laws whereby issues relating to arbitration agreements are resolved by referring to a national law recognized as applicable. However, the French courts' reliance on a substantive rule which they qualify as international should not hide the fact that it is first and foremost a French rule.

4. The other way in which the French courts' pro-arbitration stance is evidenced is the limited extent of the review to which awards are subject when applications are made for their setting aside or enforcement. This means that the relevant provisions of the New York Convention have nowadays become very much a dead letter, as the Convention reserves a party's right to the application of more favourable rules of law in the country where recognition is sought (Article VII). This is the case with French law on most points. [Page14:]

5. Far from departing from this policy, court decisions over the last twelve months have continued to follow exactly the same line, as can be seen from a review of those decisions. In the following discussion, they will be grouped by subject matter, i.e. those dealing with arbitration clauses, those relating to the conduct of the proceedings and those concerning the review of awards.

I. Arbitration clause

6. Each year brings a fresh batch of pathological arbitration clauses. Significant decisions have also been rendered on Kompetenz-Kompetenz, and on the effectiveness of an arbitration clause on parties that have not signed it in strings of contracts.

A. Pathological clauses

7. It is important to remember that if parties simultaneously sign an arbitration clause and a choice-of-jurisdiction clause, the courts do not regard this as being sufficient to disqualify the arbitrators. This is inferred from the French rule expressing the negative effect of Kompetenz-Kompetenz on State courts. If a dispute covered by an arbitration agreement is brought before a State court, the court must decline jurisdiction, 'unless the arbitration agreement is obviously void'. 2 As a consequence of this rule, the courts can only conduct a prima facie review, whereas arbitrators carry out a full review. This explains why the arbitrators have priority, subject to later review by the State courts if the arbitrators assume jurisdiction and an award is eventually rendered.

8. In November 2007, an outcome was reached on this point in a case that had been ongoing for some time. The arbitration clause here named two institutions, one of which was the ICC (incidentally referred to as 'Chambre internationale de commerce de Paris'). An appeal court considered the clause to be clearly inapplicable under Article 1458 of the French Code of Civil Procedure, finding it 'utterly contradictory'. 3 The decision was annulled. 4 According to the Court of Cassation, difficulties in implementing a clause should not be confused with an inability to apply the clause. Although contradictory, the clause showed the parties' wish to have recourse to arbitration. The case was referred to the Paris Court of Appeal, which took a similar view and held that the wording of the clause affected its implementation but did not throw doubt on the fact that there was a shared wish for arbitration. 5 The situation was therefore perceived as being simply a problem concerning the constitution of the arbitral tribunal. As such, it should have been referred to the courts for their assistance in the first place, but this did not happen. One may well wonder how it could have been resolved. One approach might have been to consider that the two clauses cancelled each other out and thus to initiate an ad hoc arbitration. Another would have been to allow the claimant to choose between the two institutions named, given the parties' clear wish for institutional arbitration. This is roughly what happened: while one of the parties was applying to a State court, the other [Page15:] filed a request for arbitration with the ICC; the International Court of Arbitration came to a prima facie finding that an arbitration agreement under the ICC Rules of Arbitration (hereinafter 'the Rules') may exist, pursuant to Article 6(2) of the Rules and an arbitral tribunal was thus constituted.

B. Kompetenz-Kompetenz: negative effect in relation to State courts

9. An arbitration clause covered disputes arising from the interpretation and performance of a franchise agreement. One of the parties alleged that the agreement was void from the outset. The claimant brought its action before the State courts. Both the first instance and appeal courts found that they had jurisdiction. However, the Court of Cassation ruled otherwise: the wording of the clause did not make it void or inapplicable, which were the only grounds on which the arbitrator's primary jurisdiction to rule on its existence, validity and scope could be overriden. 6

This decision does not affirm that it was up to the arbitrators to rule on the allegation that the clause was void, but simply that it was up to them to interpret it so as to know whether they could themselves rule on the allegation. Their finding may be open to later review by the State courts.

C. Arbitration clauses and third parties: transfer of clauses in strings of contracts

10. The Court of Cassation has been quite receptive to applying arbitration clauses to parties that have not initially signed them, as in strings of contracts. It takes the view that an international arbitration clause is binding upon any party vested with the rights of one of the original contracting parties, or that it is conveyed with the main contract, unless there is evidence that the arbitration agreement was made in consideration of the parties thereto. The Court of Cassation set out its position in March 2007 in a decision that has been widely discussed (ABS), and it reiterated and developed its position in January 2008.

11. In ABS, the Court stated that 'in a string of contracts with assignment of title, the arbitration clause is transferred automatically as an accessory to the right of action, itself an accessory to the substantive right transferred, regardless of whether the string is homogeneous or heterogeneous'. 7 This was a textbook case in that it involved no fewer than seven companies (some of which had manufactured and others sold defective electronic chips), and neither the claimants at the end of the string nor certain of the respondents at the start of the chain had signed the clause. 8[Page16:]

Various details can be extracted from the dense wording above. The fact that the clause is transferred irrespective of the homogeneity of the string of contracts and the nature of the transferred property means that the contracts do not have to be successive sales, but may include a contract for services (manufacture). 9 The justification put forward for applying the clause to third parties is the fact that the action is transferred with the ownership of the property, of which it is an accessory. Hence, it is transferred objectively, which explains why the transfer is said to be automatic. The accessory doctrine comes into play in two respects: the action is transferred as an accessory to the object sold, and the clause is transferred with the right of action. Hence, the clause is an accessory to the accessory. The existence of the arbitration clause means that the action transferred with the property is set up or 'informed' in such a way that it can only be brought before an arbitral tribunal.

Once again, however, the true meaning of the decision needs to be pointed out: it did not say that the arbitrators have jurisdiction over non-signatories but simply that they are empowered to rule on their jurisdiction. This is expressly stated in the later decision, made on 9 January 2008, where the ABS wording is repeated but qualified by a reservation referring to the arbitration clause being void or clearly inapplicable, in which case there would be no point in referring the issue of jurisdiction to the arbitrators. 10

12. Despite the growing strength with which it is affirmed, the line taken by the Court of Cassation raises doubts that could one day cause it to backtrack. 11 At a general level, it has been accused of disregarding the privacy of contracts. It has also been criticized for imposing arbitration on parties that have not necessarily consented thereto, which is said to go against the very nature of arbitration. 12 The Court of Cassation had previously included a reservation allowing for proof that the party alleged to be bound by the arbitration clause could reasonably have no knowledge of its existence. This reservation does not appear in the recent court decisions, however. A decision that has since been rendered in relation to shipping has stated that it is customary to include arbitration clauses in international contracts of carriage. This justification would appear to have been extended to any contract relating to international trade. Yet this overlooks the fact that at the end of the string there may be a small business (or even a consumer) ignorant of the role of arbitration in resolving international commercial disputes. The fact that this end person would be obliged to go before an arbitrator to challenge the effects of the clause, and the resulting costs, have led some writers to see this as a denial of access to justice. Further developments on the subject cannot therefore be ruled out. [Page17:]

II. Conduct of the proceedings

A. Arbitration contract with the institution

13. On 10 October 2007, the Paris Tribunal de grande instance ruled on an action brought against the ICC concerning its liability following the rendering of an award. 13 The action was initiated by a company called SNF and concerned an arbitration between it and a company called Cytec, about which more will be said below.

Following the rendering of two awards in Belgium, the parties approached the arbitral tribunal with requests for interpretation, to which the tribunal responded with an addendum. The party against which the awards were rendered subsequently approached the ICC with regard to the status of this addendum. Dissatisfied with the answers it did or did not receive, this company filed a suit against the ICC, alleging that it was liable for breaches of its Rules due to the length and cost of the proceedings and the failure to respect EC public policy in the field of competition. The amounts claimed were almost identical to those owed by the claimant under the awards, i.e. around 9 million euros. All the claims were dismissed by the court, whose decision contains a number of interesting details.

14. Firstly, it is recalled that the International Court of Arbitration is not a legal entity and that the respondent is therefore the ICC, which is responsible for the administrative acts performed by the Court and its Secretariat.

Secondly, the judgment states that the ICC's activity in organizing arbitration proceedings is of a contractual nature. By publishing its Rules, the ICC is said to maintain a permanent offer open to the public. When parties accept this offer, a contract for the organization of the arbitration is created with each of them.

The judgment goes on to say that the relations between the claimant and the ICC are subject to French law, due to the fact that the ICC has its seat in Paris. It omits to specify that, according to the rule of conflict applicable by the French courts, if no law has been expressly chosen, then this seat is determinant as that of the party providing the characteristic performance. 14 If need be, it may be added that if the law of the claimant were chosen, the arbitration contracts made by the ICC with each party would be governed by different laws.

15. On the substantive question of the award's alleged infringement of international law, the judgment notes that this does not concern the ICC. Above all, however, it dismisses the claim on the basis of Article 34 of the 1998 Rules, which excludes the Court's liability, and that of the arbitrators, for any act or omission in connection with the arbitration. [Page18:] The court found this clause to be lawful under French law, according to the Civil Code, especially as it appears in an international contract; 15 further, no deliberate, inexcusable or serious misconduct, which could make the clause ineffective under French law, had been alleged.

In so finding, the court must have determined the applicable version of the Rules, for there was no equivalent to Article 34 in the previous version, and the contract in dispute was made in 1993. It applied the 1998 Rules as being those in force 'on the starting date of the arbitration'. 16

B. Constitution of the arbitral tribunal

16. The scope of the assistance that can be given by a court requested to help with the constitution of the arbitral tribunal has not been fixed by statutory law. The Court of Cassation has held that there would be nothing illegal in a court's requiring a party, as a preparatory measure, to reveal the number of arbitrations in which it has nominated a person as arbitrator 'given that it [the court] has the task of resolving difficulties concerning the constitution of the arbitral tribunal in such a way that the parties put their trust in the tribunal'. 17

C. Consolidation of disputes over related contracts

17. The Paris Court of Appeal has ruled on the conduct of complex proceedings that involved several parties and contracts, and raised a number of different issues. 18 A French company regularly entered into contracts with two mutually related Algerian companies. The contracts concerned the sale of cereals and made reference to a model contract from a professional body, in which there was an arbitration clause referring to the Arbitration Chamber of Paris. Eleven of some thirty contracts made over a twelve-month period gave rise to payment problems. Six of the contracts were made with one of the buyers, four with the other, and one with both of them. The arbitral tribunal ruled on all of the contracts in dispute, and thus with regard to both parties, in one and the same award. One of the buyers, against which the award for payment was made (and which, as will be seen below, failed to participate in the proceedings) claimed that the tribunal was wrong to do so. The Court of Appeal rejected the claim, noting that the contracts placing the orders were identical and that they were made as part of the same business relationship between the parties, whose separation was therefore purely formal; that the two companies did not have differing interests; that they had the same director; and that they were referred to in a first demand guarantee as 'the buyer'. The Court concluded that the filing of a single arbitration request covering identical disputes was, moreover, a reasonable and useful procedural tactic and in everyone's interest. [Page19:]

18. The case notably highlights that in a situation involving related contracts the claimant may decide to introduce a single case. One or more of the respondents may of course object and request that the matters be separated (in the present case, the claimant did not do this as it failed to appear before the arbitrators). The judgment also shows that the arbitrators' decision not to separate the matters is subject to review by the court in which the application to set aside the award is made. In this particular instance, it was for the party objecting to consolidation to show that its rights were affected by the various contracts being treated in the same proceedings. No such allegations were made, so the criteria of economization and efficiency in the administration of justice prevailed.

III. Review of awards

19. Some decisions relate to review in general, while others deal with the various possible grounds for review.

A. General principles

20. The Court of Cassation has reaffirmed a rule already established by the courts, regarding the waiver of a party's right to claim irregularities in the arbitral procedure. This rule is mirrored in Article 33 of the Rules: a party that did not object to an alleged mistake in front of the arbitral tribunal as soon as it became known to it is deemed to have waived its right to object. 19 Three decisions from the Paris Court of Appeal, in which the same rule is applied, go as far as using the term 'estoppel'. In one of the decisions, the petitioner waited until the stage of enforcing the award to claim that the arbitral tribunal had been irregularly constituted. 20 In another, the petitioner filed a challenge against an arbitrator after the award had been rendered and more than a year after first questioning the arbitrator's independence. 21 In the third, the petitioner argued that it had not been invited to comment on the method of assessing damages put forward by the other party, to which it was replied that the party failed to mention this alleged irregularity in front of the arbitrators when it had the opportunity to do so. 22

21. The waiver rule cannot, however, apply to a party that has been totally absent from the proceedings before the arbitral tribunal. In such circumstances, the party cannot be denied its right to raise procedural irregularities when pleading in court. Although not said in so many words, this is what emerges from the above-mentioned decision in which an application to set aside a single award relating to multiple contracts made with two buyers was dismissed. 23[Page20:]

B. Assessment of the various claims that may be raised

22. The grounds on which objections to the enforcement of an award may be made or the setting aside of an award sought are found in Article 1502 of the Code of Civil Procedure.

1) Arbitration agreement is lacking, invalid or has expired

23. The last-mentioned decision above, following established case law, upholds the validity of an arbitration clause 'by reference', for the familiar reason that a clause by reference is valid 'when the party to whom it is applied knew of it at the time the contract was made and has accepted such reference, even by remaining silent'. 24

2) Irregularities in the composition of the tribunal or the designation of arbitrators

24. This ground covers any objection concerning an arbitrator's independence or impartiality. A decision on the duty to disclose gives a definition of what is covered by that duty, which echoes certain arbitration rules: an arbitrator must inform the parties of 'any relation that is not generally known and could, in their eyes, reasonably affect [the arbitrator's] judgment'. 25 In the case in question, one of the parties believed that it was wrong for the chairman of the arbitral tribunal and the lawyer representing the other party to have taken part in a colloquium. Not without irony, the Paris Court of Appeal saw this rather as a sign of a perfect choice of chairman made by the co-arbitrators in light of the issues to be decided.

3) Non-fulfilment of the arbitrator's duties

25. A decision worth mentioning concerns an arbitrator's assessment of damages. 26 The arbitrator was accused of having expressly assessed the damages according to equity, whereas he had not been given powers of amiable composition. The Paris Court of Appeal rejected this claim because the claimant did not mention any rule of law that could have been applied to assess the amount of damages but which the arbitrator disregarded in his search for the most equitable solution. Going further, the Court added that an assessment of damages according to equity, on the basis of objective means of overall assessment, corresponds to a general principle of law recognized in all legal systems.

26. Another decision concerns the perimeter of the dispute. The arbitrators were requested to rule on disputes concerning the validity, interpretation, performance and effects of the contract. They awarded damages to compensate harm done to a party's image. The Paris Court of Appeal held that in so doing they did not exceed the assignment they had been given. 27[Page21:]

4) Failure to respect the principle of an adversarial process

27. A judgment by the Paris Court of Appeal, to which reference has already been made above, ruled on the connection between the principle of an adversarial process and the rendering of an award without a party's participation. 28 The party requesting that the award be set aside had been informed of the implementation of the arbitration clause in accordance with the applicable rules of arbitration, but it refused to take receipt of the ensuing communications and the proceedings continued to their conclusion without that party. The Court of Appeal dismissed the claim that this violated the principle of an adversarial process. The applicable rules, which were similar in this respect to those of the ICC (Article 6(3)), provided that if the respondent fails to appear, despite being summoned, the tribunal can go ahead with the arbitration on the basis of what is available to it.

As to whether proper notification had been given in this case by a French company to an Algerian company, the Court of Appeal also dismissed the claim that the form used was not that laid down in the French Code of Civil Procedure for notifications made abroad. The Court referred to the applicable procedural rules, which stated that 'the arbitrators do not need to comply with the procedure, forms and deadlines set for the courts' and added that this was consistent with the rule obtaining in international arbitration.

28. In another case, on the other hand, an award was set aside because the arbitrator did not check on the way in which a procedural act had to be served on a party. The UNCITRAL Arbitration Rules, which were applicable, provide for physical delivery to the addressee, delivery to his habitual residence, or to his mailing address. Unfortunately, only a summary of the judgment has been published, so it cannot be analysed in any detail. 29

5) International public policy

29. - a) The question of whether the arbitral tribunal has jurisdiction to rule on matters involving mandatory rules or rules of general interest is generally determined as a matter of international public policy. It should be recalled first that when the arbitrability of a dispute is raised as an issue before the arbitrators at the outset of the proceedings, the French courts accept that the arbitrators decide on their own jurisdiction over this matter and are empowered to apply the relevant principles and rules and to sanction any disregard thereof. The Paris Court of Appeal reiterated this principle in a decision handed down in March 2008. 30 When it comes to reviewing awards after they have been made-a possibility that explains the liberal position taken by the courts on the question of arbitrability-some significant decisions have been rendered in relation to competition law and patent law.

30. The Paris Court of Appeal is well known for having taken what may be called a minimalist stance when reviewing the application of competition law by arbitrators. It [Page22:] did so in the Thales31 and Cytec32 cases, where it stated that, to justify that an award be set aside, the alleged violation of international public policy under Article 1502(5) of the Code of Civil Procedure, must be 'flagrant, real and concrete'. This attitude derives from the fact that awards cannot be reviewed on their merits, from which it is inferred that what must be offensive to public policy, causing the award be rejected or set aside, is its enforcement, not the reasoning on which it is based.

These decisions have been given a mixed reception, however, and in Belgium the Brussels Court of First Instance, ruling in the same Cytec case, rendered a judgment that took quite the opposite stance. After a detailed review of the arbitrators' reasons, it ordered the award to be set aside. 33 The appeal against the Paris Court of Appeal's decision in Cytec was dismissed by the Court of Cassation on 4 June 2008, 34 which reaffirmed the principle of a purely external review, i.e. limited to checking that the award itself does not contain anything contrary to the general interest (for instance, by allowing an anti-competitive agreement to continue to be performed), without any review of the reasoning underlying the arbitrators' decision. Given the initial reactions to this judgment, it cannot be said to have put an end to discussions.

31. As far as patents are concerned, French courts endorse the position that disputes relating to licences under patents may be settled by arbitration, but there is some doubt about the scope of the arbitrators' powers when the validity of the patent is called into question in such disputes. A decision of the Paris Court of Appeal has thrown some light on the question. 35 The arbitrator had dismissed the respondent's plea that he lacked jurisdiction and pointed out that the effects of resolving the parties' dispute on this matter were limited to the parties to the arbitration. Approving this position, the Court of Appeal stated that, when raised as an incidental issue in a contractual dispute, the question of the validity of the patent can be submitted to the arbitrator, as he rightly pointed out. It reiterated the argument that if the patent is found to be void, res judicata would not apply to this finding any more than it would to a court decision, since the finding produces its effects between the parties only. The Court added that the same goes for a decision upholding the validity of the patent, for third parties can always challenge the validity of the patent (in the State courts) for the same reasons.

32. - b) Another issue dealt with as a possible violation of international public policy is the treatment given to an award that has been set aside in the country where it was made. The Court of Cassation has reiterated the well-known and, at the time, much discussed ruling in the Hilmarton case, 36 and has further clarified the grounds on which it was made. In a decision handed down on 29 June 2007 in Putrabali, the Court of [Page23:] Cassation stated somewhat solemnly that 'an international award, which is not connected to any legal system, is an international judicial decision, whose legality is examined with regard to the applicable laws in the country where its recognition and enforcement are sought'. 37 The fact that an award may have been set aside in the country where it was made does not therefore prevent it from being recognized in France. 38 Formal support for this position is found in Article 1502 of the French Code of Civil Procedure, which, unlike Article V(1)(e) of the New York Convention, does not mention the setting aside of an award in another country as a ground for refusing enforcement. However, this is not the prevailing position in comparative law, and French law has virtually lost an ally on this point as a result of various decisions by US federal courts, especially in the Termo Rio case. 39

33. Continuing on from the review of awards, something should be said about their enforcement against States in the light of State immunity. The question is of course not peculiar to arbitration, but the debt often has its origin in an arbitral award. The customary rule is that French courts do not allow enforcement on property used for sovereign activities (jure gestionis). As is well known, the difficulty with property used for economic activities is that it is rarely owned by the State itself but usually by separate corporate bodies commonly referred to as 'offshoots' of the State. The question arises as to whether the claimant can be allowed to pierce the veil so as to enforce the decision on the property of the offshoot. On 6 February 2007, the Court of Cassation decided that a dependent entity could be liable for the State's debts if its functional independence was not so pronounced as to give it legal and factual autonomy with respect to the State and if its assets were indivisible from those of the State. 40 This solution was reaffirmed in a further decision on 14 November 2007. 41

34. To conclude this overview, we would mention the prospect of a change in the law. Following a report commissioned by the Minister of Justice, there is talk of removing the current prohibition on public entities being parties to arbitration clauses. This in other words would open up the possibility of arbitration in the public sector. 42 As has been observed, international contracts made by public bodies would be an ideal playing field for arbitration. However, there is some resistance to the idea, so it would be rash to regard the change as imminent.

1
See E. Gaillard, 'La jurisprudence de la Cour de cassation en matière d'arbitrage international' Revue de l'arbitrage 2007.697.

2
Code of Civil Procedure, Article 1458(2).

3
Aix-en-Provence, 23 February 2006, UOP NV v. BP France, Revue de l'arbitrage 2006.479. Given that the two institutions functioned differently and had different rules, the Court of Appeal held that the terms of the contract did not allow one of the two concurrently named arbitration bodies to be given the power to rule on its jurisdiction.

4
Cass. civ. 1re, 20 February 2007, Revue de l'arbitrage 2007.775 (Annot. F.-X. Train).

5
Paris, 28 November 2007, Revue de l'arbitrage 2008.Somm.159.

6
Cass. civ. 1re, 12 December 2007, Revue de l'arbitrage 2008.Somm.160.

7
Cass. civ. 1re, 27 March 2007, ABS (Alcatel Business Systems) et AGF v. Amkor et al., JCP 2007.I.168 (Annot. C. Seraglini) and II.10118 (Annot. Golhen), Revue de l'arbitrage 2007.785 (Annot. J. El Ahdab), Journal du droit international 2007.968 (Annot. C. Legros), Revue critique de droit international privé 2007.798 (Annot. F. Jault-Sesseke).

8
The judgment also applied established case law in extending the effects of the clause within a group of companies. The respondents included two French subsidiaries of the US company that had signed the clause. The Court of Cassation reaffirmed its existing position that 'the effect of an international arbitration clause extends to the parties directly involved in the performance of the contract and any disputes arising therefrom'. In another decision, however, the Court of Cassation refused to apply the same rule for rather formal and unclear reasons: Cass. civ. 1re, 30 October 2006, Revue de l'arbitrage 2008.307 (Annot. D. Cohen). In the same decision, the Court of Cassation much more convincingly refused to extend the arbitration clause to the director of the signatory company, who in that capacity had put his signature to the clause.

9
This is the solution adopted in French domestic contract law, with which arbitration law has thus been made consistent.

10
Cass. civ. 1re, 9 January 2008, Revue critique de droit international privé 2008.128 (Annot. H. Muir-Watt), Revue de l'arbitrage 2008.Somm.160.

11
The criticism should be attenuated in one respect, however. There is no contradiction between affirming the separability of the clause (so as to give effect to it notwithstanding an allegation that the contract containing it is void) and treating it in the same way as the main contract. Insofar as the clause continues to apply to the original parties, it is extended to the third parties rather than transferred to them.

12
The fact that the Court of Cassation also presents this solution as the result of a substantive rule of international arbitration (see above at § 3) is also open to doubt, as the solution appears somewhat uncommon in comparative law. Moreover, an arbitrator called upon to rule on his jurisdiction can hardly say this is based on the intention of a party that was obliged to submit to arbitration. The arbitrator must therefore rule on the transfer of the clause according to the applicable law. As observed by one commentator, 'one cannot help questioning the coherence of a solution which, by requiring the arbitrator to decide firstly on the effectiveness of the

13
Revue de l'arbitrage 2007.847 (Annot. Ch. Jarrosson). The commentator mentions that, as far as he knows, this was the fifth time the French courts were required to expound on the rules governing the ICC's liability. This figure should be compared with the number of cases handled. In none of the decisions rendered was the ICC found to be liable.

14
Rome Convention of 19 June 1980 on the Law Applicable to Contractual Obligations, Article 4. The jurisdiction of the Paris courts over claims made against the ICC is based on the rule that jurisdiction lies with the courts at the place where the defendant is established.

15
The claimant was in fact a French company, but it is easy to see that the arbitration contract between it and the ICC was international due to the unquestionably international nature of the arbitration to which it related.

16
This is the rule laid down in Article 6(1) of the Rules. The case commentator notes, however, that there was some jumping to conclusions, for it is one thing to assert that the Article 6(1) rule exists, but quite another to determine whether that rule was in force when the arbitration contract was made. The ICC does not know, however, that parties refer to its Rules in their contracts. Be that as it may, the request for arbitration was in fact made in 2000 in this case.

17
Cass. civ. 1re, 20 June 2006, Revue de l'arbitrage 2007.463 (Annot. J. Ortscheidt).

18
Paris, 13 September 2007, Revue de l'arbitrage 2008.313 (Annot. F.-X. Train).

19
Cass. civ. 1re, 28 May 2008, Revue de l'arbitrage 2008.Somm.344. In the same decision, the Court of Cassation affirmed that Articles 1502 and 1504 of the Code of Civil Procedure,

20
Paris, 13 March 2008, Revue de l'arbitrage 2008.Somm.340.

21
Paris, 7 February 2008, Revue de l'arbitrage 2008.Somm.166.

22
Paris, 28 February 2008, Revue de l'arbitrage 2008.Somm.167.

23
Paris, 13 September 2007, see supra note 18.

24
Paris, 13 September 2007, see supra note 18.

25
Paris, 13 mars 2008, Revue de l'arbitrage 2008.Somm.340.

26
Paris, 17 January 2008, Revue de l'arbitrage 2008.333 (Annot. F. Mélin).

27
Paris, 17 January 2008, Revue de l'arbitrage 2008.Somm.162.

28
Paris, 13 September 2007, see supra note 18.

29
Cass. civ. 1re, 5 March 2008, Revue de l'arbitrage 2008.Somm.339.

30
Paris, 20 March 2008, Revue de l'arbitrage 2008.Somm.341.

31
Paris, 18 November 2004, Journal du droit international 2005.357 (Annot. A. Mourre), JCP 2005.10038 (Annot. G. Chabot) and 05.I.134 (Annot. C. Seraglini), Revue critique de droit international privé 2006.106 (Annot. S. Bolée, Journal du droit international 2005.10038 (Annot. A. Mourre). See also the articles of L. Radicati di Brozzolo, Revue de l'arbitrage 2005.529, D. Bensaude, (2005) 22 Journal of International Arbitration 239. In this case, the question of an infringement of competition law had not been raised in the arbitration, so it would have been difficult to justify setting aside the award as a sanction. Any doubt is removed in the second case, where the Court of Appeal notes that various arguments were heard in the arbitration.

32
Paris, 23 March 2006, Revue de l'arbitrage 2007.100 (Annot. S. Bollée, D. 2006.3032 and 3033 (Annot. Th. Clay).

33
Trib. 1re inst. Bruxelles, 8 March 2007, Revue de l'arbitrage 2007.303 (Critical annot. A. Mourre and L. Radicati di Brozzolo).

34
Cass. civ. 1re, 4 June 2008, Revue de l'arbitrage 2008.346, Global Arbitration Review (23 June 2008).

35
Paris, 28 February 2008, see supra note 22.

36
Cass. civ. 1re, 23 March 1994, Hilmarton, Revue de l'arbitrage 1994.327 (Annot. Ch. Jarrosson), Journal du droit international 1994.701 (Annot. E. Gaillard), Revue critique de droit international privé 1995.356 (Annot. B. Oppetit). Also Paris, 14 January 1970, Chromalloy, Revue de l'arbitrage 1997.395 (Annot. Ph. Fouchard), Journal du droit international 1998.750 (Annot. E. Gaillard).

37
Cass. civ. 1re, 29 June 2007, Putrabali, Revue de l'arbitrage 2007.507 (Rep. J.-P. Ancel, Annot. E. Gaillard), Journal du droit international 2007.1236 (Annot. Th. Clay), Les Petites Affiches September 2007 (Annot. M. de Boisséson).

38
Consequently, there is no need to stay the action to enforce an award (actually rendered in the context of the OHADA Treaty) against which an action to set aside has been initiated in the State where it was made: Paris, 31 January 2008, Sté ivoirienne de raffinage, Les Petites Affiches, 3 October 2008.

39
US Court of Appeal, District of Columbia, Termo Rio v. Electrificadoria Dela Atlantico, 17 March 2006, Revue de l'arbitrage 2007.553 (Annot. J. Paulsson). See also A. Mourre, Revue de l'arbitrage 2008.263. At first instance, US District Court, D.C., Revue de l'arbitrage 2006.786 (Annot. J. Paulsson).

40
Cass. civ. 1re, 6 February 2007, Sté nationale des Pétroles du Congo, Revue de l'arbitrage 2007.483 (Annot. L. Franc-Menget), Revue générale de droit international public 2007.967 (Annot. Haas).

41
Cass. civ. 1re, 14 November 2007, Société nationale des hydrocarbures (Cameroun), Revue critique de droit international privé 2008.303 (Annot. M. Audit). These two decisions were rendered at the stage of enforcement, not immunity (which had been waived by the State against which the award was made).

42
'Rapport du groupe de travail sur l'arbitrage en matière administrative', Revue de l'arbitrage 2007, p. 651. Commentary: J.-L. Delvolvé, ibid. p. 373; S. Lemaire, ibid. p. 407.