The objection seeking to dismiss an action for annulment on the ground that the violation of international public policy was not raised in due time is a “fin de non-recevoir” (plea of inadmissibility) which must be raised before the Court of Appeal hearing the action for annulment.
In an opinion issued on 20 March 2024, the Court of Cassation ruled on two questions, the first of which concerned the nature of the objection based on article 1466 of the Code of Civil Procedure, pursuant to which a party waives the right to raise an irregularity that it has not previously raised before the arbitral tribunal.
The Court first noted that under Article 122 of the Code of Civil Procedure, any objection seeking to have the opposing party’s claim declared inadmissible for lack of standing, without examining the merits, constitutes a “fin de non-recevoir” (plea of inadmissibility).
The Court then added that article 1466 of the same Code provides that a party who, in full knowledge of the facts and without a legitimate reason, fails to raise an irregularity in due time before the arbitral tribunal shall be deemed to have waived the right to raise such irregularity. The Court held therefore that an objection seeking to have the action to set aside an arbitral award declared inadmissible constitutes a plea of inadmissibility under arbitration law, within the meaning of Article 122 of the Code of Civil Procedure.
The second question was which of the “Conseiller de la mise en état“or the “formation de jugement” had jurisdiction to hear such a plea.
The Court of Cassation had already stated, in an opinion dated 11 October 2022, that the f”formation de jugement” has jurisdiction to rule on pleas relating to the appeal, whereas pleas relating to the proceedings of the appeal fall within the jurisdiction of the “Conseiller de la mise en état” (Opinion of the Court of Cassation, 11 October 2022, no. 22-70.010). According to the Court of Cassation, the plea based on article 1466 of the Code of Civil Procedure does not concern the regularity of the proceedings before the Court of Appeal hearing an action for annulment. Therefore, such a plea of inadmissibility does not fall within the jurisdiction of the “Conseiller de la mise en état“, but within the jurisdiction of the Court of Appeal itself.
Citation: Civ. 1ère, 20 March 2024, No. 23-70.019, Opinion No. 15005, P+B.
