Clyde & Co successfully obtained the rejection of the appeal lodged against a decision of the juge d’appui in which jurisdiction was declined toward a candidate arbitrator
On 15 February 2022, the International Commercial Chamber of the Paris Court of Appeal rejected the appeal (appel-nullité) lodged against a judgment rendered by the juge d’appui ruling under the expedited procedure (procédure accélérée au fond). The appellants contended that the juge d’appui had committed three negative abuses of power : (i) by refusing to uphold jurisdiction despite the existence of an alleged denial of justice; (ii) by refusing to uphold jurisdiction despite the existence of an alleged difficulty related to the constitution of the arbitral tribunal; and (iii) by refusing to uphold jurisdiction over an unconfirmed candidate arbitrator.
David Méheut, partner, and Sophie Grémaud, counsel, successfully defended the candidate arbitrator. The Court of Appeal considered that, under the guise of an abuse of power, the appellants were simply criticizing the juge d’appui’s reasoning which led him to decline jurisdiction. Such a criticism does not constitute an abuse of power. Besides, the juge d’appui correctly held that: (i) a candidate arbitrator and an arbitrator’s duty to disclose does not relate to the arbitral organization contract, but rather to the contract binding the arbitrator to the parties; and that (ii) any alleged breach of the candidate arbitrator’s duty to disclose is not a difficulty related to the constitution of the arbitral tribunal giving jurisdiction to the juge d’appui, but gives rise to a liability action falling within the jurisdiction of the ordinary courts. The Court of Appeal ordered the appellants to pay 77,904.37 euros to the arbitrator candidate who had been unjustly challenged.