The View from Europe What's New in European Arbitration?

By Wilske, Stephan; Fox, Todd J. et al. | Dispute Resolution Journal, August 1, 2015 | Go to article overview

The View from Europe What's New in European Arbitration?


Wilske, Stephan, Fox, Todd J., Steward, Geoff, Dispute Resolution Journal


RECENT DECISIONS BY NATIONAL COURTS

France. In a decision dated May 13, 2015 the French Supreme Court (Cour de cassation) made an important ruling on the requirements for a waiver of sovereign immunity. The decision is Commisimpex v. Republic of the Congo, May 13 2015, 13-17751, reversing a 2012 decision of the Court of Appeal of Versailles and remanding the case to the Paris Court of Appeal.

Background

In the 1980's Commisimpex (i.e., Commissions Import Export, S.A.) entered into contracts with the Republic of the Congo to perform public works and supply materials. In 1992 the parties signed an agreement for the extended repayment of certain outstanding debts owed to Commisimpex under the contracts. The agreement contained an arbitration clause providing for arbitration under rules of the International Chamber of Commerce (ICC). The Republic of the Congo arranged for promissory notes to be issued in favor of Commisimpex and in 1993 issued a series of commitment letters; each commitment letter contained an irrevocable waiver of "all immunity from jurisdiction as well as all immunity from enforcement in the context of the settlement of a dispute relating to the undertakings which are the subject of such letter" ("à invoquer dans le cadre du règlement d'un litige en relation avec les engagements objets de la présente, toute immunité de juridiction ainsi que toute immunité d'exécution.").

When the Congo failed to pay the promised amounts as they became due and did not respond to a formal demand for payment, Commisimpex initiated ICC arbitration. In December 2000 the arbitral tribunal awarded Commisimpex damages, which it has been trying to recover in various jurisdictions ever since.

In October 2011 Commisimpex sought enforcement of the ICC award from 2000 and obtained the attachment of a number of bank accounts held in the name of the Congo's diplomatic mission as well as its delegation to UNESCO in Paris. However, the first-instance court lifted the attachments, and on November 15, 2012 the Versailles Court of Appeal affirmed the ruling. The Versailles Court of Appeal held that under customary international law, diplomatic missions of foreign states enjoy an autonomous immunity from enforcement and the only way to waive this separate, autonomous, immunity is to expressly and specifically provide that the waiver is effective against assets protected by diplomatic immunity. The Versailles Court of Appeal therefore concluded that the Congo's waiver of immunity from enforcement could not be regarded as relating to the diplomatic assets and failed to meet the requirements of an express and specific waiver.

Commisimpex appealed this decision to the French Supreme Court.

Decision

The Supreme Court reversed the Versailles Court of Appeal's decision and remanded the case to the Paris Court of Appeal.

The Supreme Court held that diplomatic missions of foreign states do not enjoy immunity from enforcement that is autonomous and distinct from that accorded to the state they represent. Thus, no waiver specific to immunities of diplomatic missions of foreign states is required. The Court criticized the lower court's holding, stating that "customary international law does not require anything more than an express waiver of immunity from enforcement" ("alors que le droit international coutumier n'exige pas une renonciation autre qu'expresse à l'immunité d'exécution...").

Citing article 38(1) of the Statute of the International Court of Justice, the Court noted that customary international law is defined as evidence of a general practice accepted as law. The Court then found that in ruling that diplomatic missions of foreign states enjoy an autonomous immunity from enforcement that can only be waived in an express and specific manner, without characterizing this as an existing general practice accepted as law despite the existence of such law being expressly contested, the Versailles Court of Appeal failed to state reasons for its decision in violation of article 455 of the French Code of Civil Procedure. …

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