Paris Court of Appeal, 4 April 2024, RG n° 22/19221
In a decision dated 4 April 2024, the Paris Court of Appeal allowed a party to participate remotely in a hearing relating to an action to set aside an arbitral award as she was unable to attend in person.
The case concerned a Russian national (“Ms [Y]”) against the State of Kuwait in an ICSID arbitration (supplementary mechanism). As the arbitral tribunal declined jurisdiction to hear the dispute, Ms [Y] brought an action to set aside the award before the Paris Court of Appeal.
Ms [Y] also applied to attend and appear at the hearing, but requested that the hearing to be held remotely, and that she would be allowed to follow the entire hearing by videoconference from the diplomatic premises in Kuwait, which she was unable to leave under threat of immediate arrest.
Ms [Y] based her application on a violation of her right to a fair trial during the arbitration proceedings. Having been detained in Kuwait at the time of the filing of the request for arbitration and during part of the proceedings until her release on bail, she claimed to have been denied full access to evidence and counsel during her detention.
The State of Kuwait opposed the application on the grounds that, on the one hand, Ms [Y] was responsible for her situation, by seeking refuge in the Russian Embassy and failing to comply with the conditions of her release on bail and that, on the other hand, the allegations that she had been denied the benefit of a fair trial had not been raised before the arbitral tribunal.
The Court noted that, under the Protocol relating to proceedings before the International Chamber of the Paris Court of Appeal (“the Protocol“), to which the parties had agreed, and the “Practical Guide to Proceedings before the International Commercial Chamber of the Paris Court of Appeal”, the Conseiller de la mise en état had jurisdiction to hear such an application.
On the basis of the Protocol and Article 6 of the European Convention on Human Rights, which guarantees a party’s right to be heard, the Court of Appeal decided to grant the request for remote participation. The Court also set out the precise conditions, indicating in particular that Ms [Y]’s appearance would be in English, by videoconference from the diplomatic premises where she currently resides, and that she could only be questioned and answer questions in person, without being able to read any drafts.
This decision demonstrates the procedural flexibility allowed by the International Commercial Chamber of the Paris Court of Appeal. Given the increasing use of videoconferencing in arbitration, remote hearings will likely become more common.
