In a ruling dated 1st October 2024, the Paris Court of Appeal ruled on the conditions for compliance with the adversarial principle in the enforcement of an arbitration award against Libya.
In this case, the dispute was between the Tunisian company Siba Plast and the Libyan state. Siba Plast had obtained an arbitration award on 28 November 2014, condemning Libya to pay it 280 million euros in respect of commercial contracts concluded in 2012, following ad hoc arbitration proceedings initiated in Tunisia. In the absence of Libya’s participation in the arbitration, Siba Plast obtained the exequatur of this award from the Paris first instance Court (Tribunal de grande instance de Paris) on 6 March 2017. It subsequently took various enforcement measures against Libyan assets in France.
Libya appealed against the enforcement order. It argued that it had only discovered the existence of the award during the enforcement proceedings. It therefore criticized the award on the basis of article 1520‑4° of the French Civil Procedure Code (violation of the adversarial process).
The Paris Court of Appeal agreed and noted that the addresses to which the notifications relating to the arbitration proceedings were sent to the e-mail addresses taken from the notice clause in the disputed contracts. However, according to the Court, these clauses cannot be applied to notifications relating to arbitration, due to the autonomy of the arbitration clause and the absence of details, in the arbitration clause itself, concerning notifications.
The autonomy of the arbitration clause thus has the paradoxical consequence of subjecting arbitration to a stricter formalism than that of the contract itself.
Over and above this abstract consideration, the ruling calls for caution in international notifications relating to arbitration, which are sometimes treated too lightly in view of what is at stake in proceedings involving foreign states.
Paris Court of Appeal, 5-16, 1er October 2024, No. 21-11112.
