The Arbitral tribunal’s refusal to order production of documents does not in itself justify setting aside an award

In a ruling handed down on September 18, 2024, the French Supreme Court continues to build on its jurisprudence on the control of infringement of international public policy and the right of defense in arbitration proceedings.
A dispute arose between the Italian company Green Network SPA and the Swiss energy market leader Alpiq, concerning the performance of an electricity supply contract. Arbitration proceedings were initiated under the aegis of the ICC and resulted in an arbitration award in favor of Alpiq.
Green Network then lodged an action for annulment of this award with the Paris Court of Appeal. In particular, it argued that the award was incompatible with French international public policy. More specifically, Green Network criticized the arbitral tribunal for rejecting without justification its request for the production of documents, while simultaneously declaring the investigation closed, thus depriving it of documents allegedly essential to demonstrate the merits of its claims.
On May 4, 2021, the Paris Court of Appeal dismissed the action for annulment on the grounds that, unless it wished to call into question the arbitral tribunal’s discretionary power, the arbitrators’ decision to accept or refuse a request for the production of documents could not infringe the rights of defence.
The French Supreme Court confirmed the reasoning of the Court of Appeal. It held that it was not the role of the annulment judge to rule on the merits of the arbitral tribunal’s decision, which had ruled that the production of the requested documents was not useful to the proceedings. The Court emphasized that the arbitral tribunal’s decision to accept or refuse requests for documents did not constitute a violation of the rights of the defense.
The ruling also addresses the issue of the production of translations of documents in proceedings for annulment. As a reminder, the International Commercial Chamber of the Paris Court of Appeal (CCIP-CA) allows the production of documents in English, without translation. However, in the case of documents in other languages, translations must be provided in due course. In this case, the late production of documents was characterized by the fact that they were produced more than three years after the initial submissions, at the date of closure of the proceedings.

Cass. civ., 18 septembre 2024, n° 21-20.140.