• news-banner

    Expert Insights

Document Production in French Set-aside Proceedings: limited powers despite an increasingly extensive scrutiny of the set aside judge

Brief reminder on the grounds for set-aside appeal under French arbitration law

Under French law, set-aside proceedings against an international arbitration award can be brought before the competent Court of Appeal (namely, for most of the time, the Paris Court of Appeals).

Article 1520 of the French Code of Civil Procedure provides five limited grounds of annulment:

  1. lack of jurisdiction;
  2. the constitution of the tribunal is irregular;
  3. the tribunal failed to comply with its mission;
  4. breach of due process;
  5. the recognition or enforcement of the award breaches international public policy.

The international public policy ground has evolved significantly in the recent years, particularly after the French Supreme Court (“Cour de cassation”) overturned its previous case law as to the level of scrutiny during set-aside proceedings. Before 2022, the Cour de cassation only performed a narrow control on the ground of “flagrant, effective and concrete” violation of the international public policy. This approach was replaced by a more extensive control following two decisions (Belokon, March 23, 2022, No. 17-17.981; Sorelec, September 7, 2022, No. 20-22.118) that removed the flagrancy requirement.

Since this overturn, one could fear that the French set-aside judge be tempted to extend its scrutiny into the merits of the award through the international public policy ground.  

Subsequent case law nevertheless demonstrated opposite: the review of international public policy remains limited to the enforcement of the award as opposed to the merits of the award itself. 

A recent decision dated September 18, 2024 (No. 21-20.140), rendered by the Cour de cassation, reaffirmed this point when discussing the arbitral tribunal’s denial of a document production request. 

Practical implications for parties to arbitration in the light of the decision rendered by the Cour de cassation on September 18, 2024

The dispute arose from an electricity supply contract between Green Network (Italy) and Alpiq (Switzerland) - ICC rules and seat in Paris. The tribunal ruled in favour of Alpiq. Green Network therefore brought set-aside proceedings before the Paris Court of Appeal, which rejected the appeal.

Green Network filed a further appeal before the Cour de cassation. 

One of the set-aside ground for appeal before the Supreme Court was based around the alleged fact that the arbitral tribunal refused Green Network’s request for production of documents without justification. According to the Green Network, this refusal breached its right to a fair defence and, as a consequence, violated French international public policy.

The Cour de cassation upheld the Court of Appeal decision: the Supreme Court recalled the principles according to which it is not for State courts to review award on its merits, nor to appreciate the arbitral tribunal’s (discretionary) assessment of the relevance (or lack thereof) of a document when assessing a party’s document production request. 

The Supreme Court found that the arbitral tribunal provided sufficient legal ground to reject the document production request. The Supreme Court added that although the reasons were not set out in the Procedural order rejecting the document request, such reason was nevertheless expressly addressed in the final award.

The Cour de cassation added that the Tribunal did not surprise the parties. It had issued a previous Procedural order which already rejected the document production request, leaving the parties sufficient time to challenge its procedural decision. The second Procedural order merely stated the tribunal’s refusal to overturn its previous order.

According to the French Court, there was therefore no breach of the right to a fair defence or of French international public policy.

Conclusion

In a nutshell, this decision rendered by the Cour de Cassation on September 18, 2024, highlights that:

  • The rejection by the arbitral tribunal of a document production request is not sufficient to set the award aside, provided that such decision was rendered with due process.
  • Despite a higher standard review on the ground of international public policy (Article 1520-5 of the French Code of Civil Procedure), French courts have no intention to cross the red line by reviewing the merits of an international arbitration award.

    It is worth recalling here the so-called French “civil law” system which emphasises the obligation for the parties to provide themselves sufficient evidence, which, in practice, considerably limits the scope and coercive nature of cross document production requests. This French domestic approach has nevertheless no bearing in the international arbitration world.

  • This Supreme Court decision should further encourage parties to make clear and precise document production requests versus overly large/burdensome requests, which tend to be rejected by arbitral tribunals and which won’t be reviewed during the French set-aside proceedings. It should also be recalled that any irregularity of the arbitral proceedings must be brought up before the arbitrators, failing which such irregularity cannot be examined by the French set-aside judge (article 1466 of the French Code of Civil Procedure). 

Our thinking

  • Seminar: National Association of Independent Administrators

    Events

  • Switzerland – Obtaining Civil Remedies in Criminal Cases

    Pierre Bydzovsky

    Insights

  • Investment Treaty Arbitration – An Overview

    Thomas R. Snider

    Insights

  • Investing in Africa’s digital economy – the brink of a digital revolution

    Nnamdi Nwokedi

    Quick Reads

  • City AM quotes Charlotte Duly on the long-awaited SkyKick v Sky Supreme Court decision

    Charlotte Duly

    In the Press

  • Navigating the Legal Landscape of Non-Performing Loan Acquisitions in the UAE

    William Reichert

    Quick Reads

  • Global Investigations Review quotes Rhys Novak on the UK government’s new guidance on complying with its forthcoming failure to prevent fraud offence

    Rhys Novak

    In the Press

  • The new guidance on the offence of failing to prevent fraud – will it lead to a sea-change to anti-fraud compliance mechanisms?

    Rhys Novak

    Quick Reads

  • Navigating the Digital Services Act and Online Safety Act: A Quick Guide for Digital Platform Providers on the need to police content

    Dillon Ravikumar

    Quick Reads

  • Obtaining civil remedies in criminal cases: the UAE, Switzerland and France

    James Colautti

    Insights

  • Insolvency Insights: Cross border recognition – UAE, DIFC & ADGM

    Nicola Jackson

    Podcasts

  • The reform of litigation funding edges closer as CJC report is published

    James Walton

    Insights

  • Not out of the Woods yet: Trade Mark Headaches for Tiger Woods and Sun Day Red

    Nick White

    Quick Reads

  • ECCTA 2023 - Companies House publishes new implementation timeline

    Cheryl Tham

    Quick Reads

  • Caroline Greenwell writes for Retail Banker International on authorised push payment (APP) fraud

    Caroline Greenwell

    In the Press

  • The Swiss Criminal Code on Corruption: Evolution & Developments

    Daniela Iselin

    Insights

  • Adam Kyte writes for Personnel Today on the EU-UK youth mobility scheme

    Adam Kyte

    In the Press

  • Winding-Up Applications and Arbitral Clauses – The English and Hong Kong Courts Diverge

    Gareth Mills

    Insights

  • Law.com International cites our Firm in a piece on how many legal jobs will be affected by AI

    Joe Cohen

    In the Press

Back to top