International Construction Law Review
ENFORCEMENT OF ANNULLED AWARDS IN FRANCE: THE STING IN THE TAIL
MICHAEL POLKINGHORNE
White & Case LLP *
“The French soul is stronger than the French mind, and Voltaire shatters against Joan of Arc.”1
In a series of recent decisions, the French courts have again confirmed the Hilmarton
2
principle, whereby an arbitral award annulled at its seat can still be enforced by the French courts. As in the original Hilmarton
decision, moreover, the courts have gone one step further and found that a second arbitral award in the same dispute—rendered after the first award’s annulment—could not be enforced because of the res judicata
effect of the original enforcement order.3
In the 1994 decision in the Hilmarton
case, an award was rendered in Switzerland in favour of a company, OTV, which then obtained an enforcement order for the award in France. Subsequently, the Swiss Supreme Court annulled the original arbitral award. A second tribunal then reached a different conclusion on the facts and issued another award.
Hilmarton applied to the French courts for enforcement of the second award. This meant, of course, that in respect of the same case, there existed two awards and two (contrary) applications for execution. Hilmarton argued that the first award had been annulled, and that its enforcement pursuant to the (already-issued) execution order would be contrary to international public policy. The French Supreme Court, however, rejected Hilmarton’s argument and held that “the [first] award rendered in Switzerland is an international award which is not integrated in the legal system of that State, so that it remains in existence even if set aside and its recognition in France is not contrary to international public policy”. The second award could not be enforced, however, as the matter had been resolved as a matter of res judicata
by the first court order for enforcement.4
1 Victor Hugo (1802–85), Tas de Pierres
(1842).
2 Cour de Cassation, 1st Civil Chamber, Hilmarton
, 23 March 1994, Rev Arb 1994.327, note Ch Jarosson; JDI, 1994.701, note E Gaillard; Rev Crit DIP, 1995.356, note B Oppetit; RTD Com, 1994.702, obs. J C Dubarry and E Loquin.
3 The principle was first applied implicitly in the Norsolor
case (Cour de Cassation, 1st Civil Chamber, 9 October 1984, Rev Arb 1985.431, note B Goldman, JDI, 1985.679, note Ph Kahn) and Polish Ocean Line
case (Cour de Cassation, 1st Civil Chamber, 10 March 1993, Rev Arb 1993.255, note D Hascher).
4 YB Comm Arb, Vol XX (1995), p. 663.
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Enforcement of Annulled Awards in France
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