Use it or lose it: French courts reject procedural objections not raised at the earliest opportunity

by DLA Piper

The Paris Court of Appeal has issued a stark warning to litigants who fail to raise procedural objections at the earliest opportunity, denying parties the right to raise those objections in a subsequent challenge to the arbitral award.

In a judgment dated 2 December 2014, the Paris Court of Appeal[1] rejected an application to set aside an arbitral award because the party making the challenge failed to raise the same argument before the Court of International Arbitration of the International Chamber of Commerce.

The procedural posture that led to this judgment was particularly unusual. The challenge, alleging that the arbitral tribunal was not properly constituted, arose after one of the arbitrators was led to resign because of a conflict of interests. The resignation occurred after the close of the proceedings and submission of the award to the ICC Court for review, but before the award was issued. The ICC invited the parties to comment on the resignation at the time, but neither party argued that the proceedings could not continue with the remaining two arbitrators. The Court of Appeal considered that the parties had thereby "waived the right to invoke that irregularity" at a later stage. 


The underlying dispute arose because two parties to a share purchase agreement (SPA) could not agree on the net working capital of the target company at completion. Arbitration proceedings were initiated by one of the parties in accordance with the SPA's arbitration provisions, and a three-member ICC tribunal was constituted. The seat of the arbitration was in France.

Following exchange of written arguments and a hearing, the tribunal declared the proceedings closed. However, before the award was issued, the arbitrator appointed by the respondent disclosed he had been in talks with several law firms "for several months" about a potential lateral move, including with the law firm representing the respondent (which he later joined).

The claimant understandably objected to the arbitrator's continuing role in the case, and the arbitrator agreed to resign from the tribunal. The chairman of the tribunal then immediately informed the parties that the award had already been drafted and transmitted to the ICC for scrutiny, pursuant to Article 33 of the ICC Arbitration Rules.

Two days later, the parties received an email from the ICC inviting comments on the arbitrator's resignation "including by application of article 12(5)" of the then applicable ICC Rules.[2] Pursuant to that rule, if an arbitrator resigns or is removed subsequent to the closing of proceedings, instead of replacing that arbitrator, the ICC may decide to allow the remaining arbitrators to continue the arbitration, taking into account the views of the parties. The claimant did not reply to the ICC's email.

In the absence of comments, the ICC decided the arbitration could proceed without appointing a new co-arbitrator. The ICC Court approved the award, which was issued within a month, and in which the tribunal declined jurisdiction over the claimant's case.

After the award was issued, the claimant filed an application for set aside before the Paris Court of Appeal, arguing that the ICC tribunal was not properly constituted (which is a ground for annulment pursuant to article 1520 2° of the French Code of Civil Procedure).  According to the claimant's argument, the resignation of the co-arbitrator by itself was insufficient to cure the irregularity resulting from the conflict of interests leading to the resignation, given that the arbitrator resigned after the deliberations of the tribunal and after the award had been drafted.

Decision of the Paris Court of Appeal

The Paris Court of Appeal dismissed the claimant's application for the setting aside of the award. The court relied on article 1466 of the French Code of Civil Procedure, pursuant to which "a party who, knowingly and without a legitimate reason, fails to object to an irregularity before the arbitral tribunal in a timely manner shall be deemed to have waived its right to avail itself of such irregularity."

The judges considered that, although the claimant requested the resignation of the arbitrator, that request did not amount to an objection to the case continuing before a truncated tribunal. In other words, had the claimant considered the proceedings tainted by the arbitrator's possible conflict of interest during deliberations,[3] the claimant should have answered the ICC's email regarding article 12(5) and requested the appointment of a replacement arbitrator. By failing to respond, the claimant waived the right to raise that objection in a challenge to the award.

Rejecting the application for annulment, the Court of Appeal ordered the applicant to pay €75,000 toward the legal costs of the defendant (a considerable amount in French practice).


In the wake of the Tecnimont decision,[4] this decision serves as a reminder that procedural objections must be raised at the first opportunity. The Paris Court of Appeal will not entertain challenges that could have been dealt with by the arbitral tribunal (or the ICC Court) but were not due to the fault of the parties. The court is also prepared to issue high costs orders to sanction parties that fail to act diligently.

[1]                   S.A. Fibre Excellence v. S.A.S. Tembec.

[2] Now Article 15(5) of the ICC Rules.

[3]                   The facts are unclear as to whether the deliberations were complete prior to the arbitrator's discussions with respondent's law firm.

[4] In Tecnimont, the French Cour de Cassation held that parties may not request the setting aside of an award on the basis that an arbitrator lacked independence if the parties could have challenged the arbitrator within the time limit set in the ICC Rules but failed to do so. See M. Ostrove, M. Desplats, F.-X. Paredes, Cour de Cassation quashes decision that disregarded ICC rule on time limits to arbitration challenges - 2 takeaways, available at


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© DLA Piper | Attorney Advertising

Written by:

DLA Piper

DLA Piper on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.