Recent developments in the French Courts’ approach to arbitral awards involving public interests

Resumo

Amongst the grounds for annulment or for denial of enforcement of arbitral awards under French law, grounds based on a breach of international public policy directly aim at protecting public interests. Via a series of recent decisions the Paris Court of appeal has strengthened its review of the compatibility of international arbitral awards with international public policy, including in particular by conducting in-depth review of the facts to determine whether a
breach of international public policy had arisen. In doing so, it has reversed its previous case law pursuant to which French courts would only annul awards for a breach of international public policy if such breach was “flagrant, effective and concrete”. The strengthening of French judicial courts’ review of international public policy is a welcome development given that, at the time of their previous case law, administrative courts had successfully claimed jurisdiction over awards concerning certain contracts entered into by French public entities, arguing that judicial courts may fail to consider the relevant public interests concerned by the arbitral awards, which they considered to be part of public policy. This has made the determination of the courts having jurisdiction to review awards significantly more complex.