Revue - Les Cahiers de l'Arbitrage N°3 - 2023 - 85

SPÉCIAL COLLOQUE « PARIS, PLACE D'ARBITRAGE ? »
law qualified arbitrator, who agreed to apply French law but applied it differently
and reached a different outcome by refusing to extend the arbitration agreement to
the non-signatory. For the Court of Appeal, the reason for extending the arbitration
agreement was said to be on the basis of the evidence on the record, in line with
the tribunal majority's decision, evidence of the said direct participation of the
non-signatory in the performance and the termination of the contract. Now, I'll get
back to the facts later.
The French Supreme Court confirmed the decision of the Court of Appeal but
I think, interestingly, the Cour de cassation did a bit more. It clarified, at least,
some points that are quite important. First, the Cour de cassation said that a choice
of law in the underlying main contract was not sufficient in order to decide that
it should be the same law applicable to the arbitration agreement; that's the first
thing. Second, the Cour de cassation said basically there is nothing else, there
is no circumstance in this case which would lead to decide that the parties
decided expressly that there was a different law that should apply to the arbitration
agreement. Then, in typical fashion, the Cour de cassation added that the usual
French law test on the applicable law to the arbitration agreement was that the
arbitration agreement is separate and distinct from the main contract, pursuant
the classic doctrine of separability. So the invalidity of the main contract should
not affect necessarily the validity of the arbitration agreement. That's the first part
of the French concept of autonomy. The second part of that concept is that it
means that there may be a different governing law of the arbitration agreement,
different from the law governing the main contract. And the third part of the French
concept of autonomy which, I think, is the one which is distinctive to French law,
is that you don't need to refer to a national law. You don't need that. You can
assess directly the common intention of the parties in order to decide the validity
and effectiveness of the arbitration agreement. I think that this third part is very
distinctive of the French concept of autonomy. So, the Cour de cassation did all of
that and simply said that, unless the parties agree expressly on a different law or
on a national law (in which case it would be this law that will apply), the French
" règle matérielle " would apply, requiring merely to look directly into the common
intention of the parties.
So basically, that's what the Cour de cassation did qualified lawyers. Now
I think there is probably some misunderstanding by non-French looking at the
French test. This is because that analysis is disconnected from the merits. If you
look at what the dissenting arbitrator said in the arbitration, at least based on what
was reported by the first decision of the High Court where the arbitral award
is quoted several times, you can see that there is a difficulty in understanding
the disconnect between jurisdiction and the merits. Basically, what the French
courts do is to look at jurisdiction and decide whether or not the non-signatory
participated in the contract - and nothing more. The question of transfer of rights,
i.e., substantive rights, or the question of whether or not the non-signatory became
a party to the main agreement (regardless of the arbitration agreement), will not
even be discussed at this stage. French courts will only look at jurisdiction. So
that's my first comment.
Now, just coming back to the applicable law as articulated by the French courts
in the Kabab-Ji decisions, they refer (wrongly in my view) to the seat of arbitration
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Revue - Les Cahiers de l'Arbitrage N°3 - 2023

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