Judgment of 24 February 1994

XXII Y.B. Comm. Arb. 682 (1997)

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Judgment of 24 February 1994

Paris Court of Appeal
XXII Y.B. Comm. Arb. 682 (1997)

Facts

After forming a group of companies, Bec Freres SA and Grands Travaux d’Afrique (Group) (plaintiffs) bid for the right to construct two road segments in Tunisia. The Group won the bid and entered a contract with the Tunisian Ministry of Public Works (Ministry) (defendant) for the construction. The contracts both contained an arbitration clause providing the parties would refer disputes to an arbitral tribunal with two arbitrators. The arbitration clause provided that the Group would appoint one arbitrator and that the Ministry would appoint the other arbitrator. The arbitration clause also provided that the arbitral tribunal would utilize the framework of Tunisian jurisprudence and French jurisprudence relating to public works. A dispute arose between the parties, resulting in the Ministry terminating the contract. The parties referred the matter to arbitration. After certain procedural disputes, the Group appointed one arbitrator, and the Tunisian courts appointed a second arbitrator when the Ministry failed to name an arbitrator. The arbitrators informed the parties that the tribunal appointed a third arbitrator to conform with Article 263 of the Tunisian Code of Civil and Commercial Procedure (CCCP). The three-member arbitral tribunal made an arbitral award in favor of the Group. When the Group sought enforcement of the award in French courts, the Ministry opposed recognition of the award, arguing the third arbitrator was appointed in defiance of the parties’ agreement to appoint two arbitrators. The Group countered that the arbitrators appointed the third arbitrator to comply with the Tunisian procedural law, which prescribes that there be an uneven number and that they used their powers to make the arbitration clause effective.

Rule of Law

Issue

Holding and Reasoning (Per curiam)

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