Revue - Les Cahiers de l'Arbitrage N°3 - 2024 - 4

EDITORIAL
Unsurprisingly perhaps, this case has given rise to multiple proceedings in several
jurisdictions including, in Spain, contempt proceedings against the sole arbitrator.
The ones the French courts have been dealing with concern the recognition in
France of the arbitrator's first award, regarding jurisdiction. The decision of the
Paris Court of appeal, commented on in this journal by Jérémy Jourdan-Marques
(Paris Journal of International Arbitration 2023-3, p. 583) found the agreement to
arbitrate in the 1878 agreement had effectively become incapable of performance
and therefore null, with the disappearance of the office of British Consul General
in Borneo. As Professor Jourdan-Marques has pointed out, the issue of nullity turns
on whether the agreement to arbitrate was conditioned by the availability of the
British Consul to act as arbitrator or whether the choice of arbitration as a dispute
resolution mechanism was preponderant in the agreement so that, absent the
British Consul, another third party acceptable to the parties (or, absent agreement,
appointed by a competent court) could equally serve as arbitrator. The Paris
Court of Appeal also entertained the idea that the choice of the British Consul as
arbitrator was somehow made intuitu personae, the then consul, a Mr. Treacher,
having personally witnessed the signing of the agreement and enjoying the trust
of the parties. However, the parties had chosen the British Consul as arbitrator,
without referring to Mr Treacher personally, which would seem to make their
trust in him irrelevant to their choice of arbitration. The Court also picked up the
fact that, for a brief period, the successor to Messrs Dent and Von Overbeck had
been the British Government which conflicted with the nomination of a British
Consul as arbitrator. However, by the time the matter came to be decided by
the Paris Court, the successor to the " tenants " had for a long time been the State
of Malaysia and the problem no longer arose. Be that as it may, the Paris Court
decided that the parties' choice of the British Consul in Borneo as arbitrator could
not be dissociated from their agreement to arbitrate, with the result that it was no
longer capable of being performed and that the sole arbitrator's jurisdiction award
would not be recognized in France.
Before the Cour de cassation, the claimants argued that the arbitration agreement
was still capable of being performed, since a suitable arbitrator could be appointed
by a competent court and that the Court of appeal had failed to take account of
the parties' intention to arbitrate irrespective of the choice of arbitrator and had
distorted the meaning and effect of their agreement. Unsurprisingly, the Cour de
cassation was unmoved by the claimants' points of appeal. Instead it concentrated
on the facts of the case as found by the Paris Court: the complexity and ambiguity
of the 1878 agreement, written in the Malay language of the time and the fact of
the parties' trust in Mr Treacher, which led the Paris Court to conclude that, as
a matter of fact, the dominant intention had been to have recourse to a British
Consul as arbitrator. The disappearance of this function led to the logical and
legally correct conclusion, that the agreement was no longer capable of being
performed.
The respect for the lower Court's findings of fact is entirely in keeping with the
limited role of the France's highest Court. However, the French Courts have long
upheld their power to act as courts of last resort in cases such as this, where the
invalidity of an arbitration agreement could deprive parties of any effective forum.
One is reminded in particular of the NIOC v. Israel case of 2005 in which, in
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The Paris Journal of International Arbitration 2024‑3
Revue - Les Cahiers de l'Arbitrage N°3 - 2024

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