Arbitration analysis: An arbitral award that fails to indicate the date and place where it was rendered, although required by the applicable law (in this case, the Tunisian Arbitration Code), does not constitute a valid ground for setting aside the award under Article 1520-3° of the Code of Civil Procedure, according to the French Court of Cassation. The decision is a clear reiteration of the French courts’ strict approach to the assessment of alleged non-compliance with the arbitral tribunal’s mandate. The principle that the merits of a case cannot be revisited by the courts is well known to all. However, parties should also be aware of an equally important and equivalent principle: courts will not revisit the procedural conformity of a case, with only the most serious procedural irregularities leading to the setting aside of the award. Written by Clément Fouchard, partner at Reed Smith.

Ferrovial Agroman v Electrica [T] [W] Pourvoi n W 21-21.148

What are the practical implications of this case?

This case confirms the strict approach taken by French courts when seized with setting-aside actions against arbitral awards based on Article 1520-3° of the Code of Civil Procedure (non-compliance with the tribunal’s mandate). The solution in the case at hand may come as a surprise to some, since the procedural non-compliance was clear-cut and undisputed (a simple failure to indicate the date and place of arbitration, as required by the applicable law).

Nevertheless, it is important to remember that the test applied by French courts does not relate to the non-compliance itself, but rather its seriousness. This strict approach stems from the principle that state courts cannot revisit the substance of a tribunal’s decisions relating not only to the merits of the case but also, to some extent, to the procedure. In this respect, it should be noted that, under French arbitration law, the absence of a reference to the date of the award and the place of arbitration does not constitute a ground for annulment of international awards (although the absence of date may be a ground for annulment for domestic award) (see Articles 1481, 1483 and 1506 of the Code of Civil Procedure). In this context, it is clear that the threshold of a defect of sufficient seriousness is not met.