Full Contents List

• Introduction
  1. Preface
  2. Foreword
  3. Introduction
• Regional Overviews
  1. Recent Developments in Investment Treaty Arbitration
  2. Challenges to Arbitrators
  3. State of Necessity in Investment Arbitration
  4. Arbitration of Intellectual Property Disputes
  5. Provisional Application of the Energy Charter Treaty
• Country Overviews
  1. Austria
  2. Czech Republic
  3. Denmark
  4. Finland
  5. France
  6. Greece
  7. Ireland
  8. Netherlands
  9. Poland
  10. Portugal
  11. Spain
  12. Ukraine
  13. United Kingdom
  14. Middle East Overview
  15. Lebanon

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Introduction

The First Chamber of the Court of Appeal of Paris has recently (20 September 2007) followed a decision of the Court of Cassation of 6 July 2005 applying what is referred to as the ‘rule of estoppel’ to proceedings in an international arbitration. A few words of caution are appropriate. Although the July 2005 decision has been viewed by legal commentators as something of a breakthrough for the rule of estoppel in the French legal context, the decision is not as earth-shatteringly novel as it may have first seemed. This is because the notion of ‘estoppel’ that appears to have been adopted by the courts is a broader but simplified form of the different types of estoppel with which a common law advocate is familiar. The scope of application of this French version of estoppel remains unclear and, in particular, the criteria to be fulfilled before the rule may be applied still require refinement and confirmation. Finally, it remains evident that the rule of estoppel is still not a natural weapon in the armoury of French civil lawyers, as a recent decision of the Court of Cassation has shown.
The opposite side to estoppel is where a litigant insists in a consistent manner on the strict application of his or her contractual rights. A good example is where contracting parties have agreed to what is often referred to as a multi-tiered dispute resolution clause. This is an agreement whereby a final and binding dispute resolution mechanism such as arbitration is to be preceded by some form of attempt at amicable resolution, such as good-faith negotiation, mediation or conciliation. The issue that has often exercised the judicial mind is the exact effect of such clauses and what sanction is to be applied when one party fails to respect the amicable resolution phase and seeks directly to implement arbitration (or court) proceedings. Several recent instances both at the Court of Cassation and Court of Appeals show that much depends upon the interpretation of the impugned multi-tiered clause and therefore upon the tribunal’s or reviewing court’s findings as to the intentions of the parties.

The French rule of estoppel

In the case of Baste (France) v Lady Cake Feine Kuchen (Germany),¹ Baste brought annulment proceedings before the Paris Court of Appeal against an international arbitration award issued by a sole arbitrator. One of the grounds for annulment relied upon by Baste was that no arbitration agreement existed. This ground was in contradiction with the position Baste had taken during the arbitral proceedings on the merits. The impugned dispute resolution provision in the underlying agreement was a good example of a ‘pathological’ clause. It provided that, in the event of a dispute between the parties, a third-party expert would be designated to seek an amicable solution, failing which the International Court of Justice in The Hague would be the judicially competent body. Baste began arbitration proceedings on the basis of the first part of the impugned provision. The sole arbitrator was appointed by the juge d’appui in the absence of agreement between the parties. Although Lady Cake’s counsel had refused to sign the terms of reference proposed by the sole arbitrator, the sole arbitrator had proceeded with what he considered to be his mission and rendered an award on the merits. The natural and no doubt proper meaning of the first stage of the impugned dispute resolution clause as referring to mediation rather than arbitration was considered irrelevant by the Court of Appeal in the face of the contradictory stance taken by Baste in its request for annulment as compared to its position in bringing arbitration proceedings on the basis of that clause. The Court of Appeal applied earlier case law of the Court of Cassation (see below) and found that Baste was estopped from arguing in the annulment proceedings that the impugned clause was a mediation clause and not an arbitration agreement.
On its facts, the Court of Appeal’s decision marks a step further for the effects of estoppel in French-based international arbitration proceedings than the previous rulings. In such previous decisions, there had been no issue over the natural and proper meaning of the dispute resolution clause. There was never any doubt that the parties had agreed to arbitration. Estoppel was invoked to prevent one party from arguing before the reviewing court that the arbitration clause did not apply to the dispute in question when it had relied upon the arbitration clause in the earlier proceedings on the merits. Here the Court of Appeal focused exclusively on the proposition or representations made by Baste regardless of the true meaning of the litigious clause.
The Court of Appeal’s decision is therefore of interest in its liberal stance regarding the requirements for an international arbitration agreement to exist (relying in essence on the behaviour of the parties, notwithstanding – and indeed in spite of – the specific, natural and proper meaning of the clause in question).
The decision does little, however, to further the meaning of and requirements for ‘estoppel’ under French law. The first time that the Court of Cassation specifically referred to and applied a notion of ‘estoppel’ in an international arbitration was in its decision of 6 July 2005 in A Rahman Golshani v Iran.² The facts were briefly as follows.
Mr Golshani, a US citizen of Iranian origin, brought a claim in 1982 before the US-Iran Claims Tribunal in The Hague for indemnification for alleged expropriation of certain of his property in Iran during the Iranian revolution in 1979. The tribunal rejected his claims in an award issued in 1993,³ and ordered him to pay the Iranian government’s costs and expenses. The Iranian government obtained an enforcement order (exequatur) of the award in France. Mr Golshani appealed the grant of the enforcement order. The Paris Court of Appeal dismissed the appeal in a decision dated 29 June 2001.⁴
One of the grounds of appeal relied upon by Mr Golshani was article 1502-1 of the New Code of Civil Procedure, namely that there was no arbitration agreement. The phrasing adopted by the Court of Appeal left open the true basis at law of its dismissal of Mr Golshani’s appeal. Mr Golshani had indeed never signed an arbitration agreement with the Iranian government. Among the possible bases at law were:
• acquiescence by Mr Golshani in the existence of an arbitration agreement between himself and the Iranian government by bringing the proceedings on the merits for indemnification before the US-Iran Claims Tribunal under the US-Iranian Treaty, which contained an arbitration agreement;
• a waiver by Mr Golshani of the right to challenge the existence or validity of such arbitration agreement, since he had made no such challenge in the proceedings on the merits;
• the consequences on Mr Golshani of the requirement to perform in good faith the arbitration agreement upon which he originally relied by bringing his claim for indemnification before the tribunal; and
• estoppel – ie, the prohibition on a party acting in contradiction with itself to the detriment of another.

Mr Golshani appealed the Court of Appeal’s decision to the Court of Cassation.
The doubt left open by the phraseology used by the Court of Appeal was closed by the Court of Cassation when it ruled upon Mr Golshani’s further appeal on 6 July 2005. The Court held that the ‘rule of estoppel’ was the basis for the inadmissibility of the grounds for annulment based upon the absence of an arbitration agreement. The Court of Cassation ruled that the Paris Court of Appeal had:
correctly found [that for Mr Golshani] who had himself made the request for arbitration ... and had participated without any reservation for more than nine years in the arbitration proceedings, it is inadmissible, on the basis of the rule of estoppel, to argue that that tribunal had rendered its decision in the absence of an arbitration agreement or on the basis of an arbitration agreement that is null and void.

The novelty of the decision of the Court of Cassation was its use of the phrase ‘rule of estoppel’. Exactly what the Court meant by such phrase is open to discussion (see below), but the idea that a party is not permitted to contradict itself to the detriment of another party is a rule that had seen numerous instances of application in earlier decisions of the French courts. As early as 1994, Professor H Muir Watt published a paper entitled ‘Welcome to estoppel in French private law’,⁵ in which she reviewed the case law of French courts going back to the late 1980s to conclude that, although based of various grounds and somewhat unsystematic, the germ of a rule of estoppel could be found in an abundance of decisions of the French courts. The decisions to which Muir Watt referred were all expressions of the notion that a party cannot behave in a contradictory manner to the detriment of a third party.
This trend in favour of what was in all but name a rule of estoppel continued in a series of decisions of the French Courts of Appeal and the Court of Cassation in the early 2000s. In a case similar to Golshani on its facts, ITM v Gavaud,⁶ the Paris Court of Appeal ruled that ITM had lost the right in annulment proceedings to argue that no arbitration agreement existed between it and Mr Gavaud in circumstances where ITM had first claimed before the state courts that they did not have jurisdiction on the merits because of the existence of an arbitration agreement and had subsequently participated in arbitration proceedings brought by Mr Gavaud without any reservation. The Court of Appeal held that such an argument was not admissible since ITM was contradicting itself to the detriment of Mr Gavaud.
In Macron v Cartonnages de Pamfou,⁷ the Paris Court of Appeal found that a party that had first challenged the jurisdiction of the courts on account of the existence of an arbitration agreement and then had argued before the arbitral tribunal and in annulment proceedings that no arbitration agreement in fact existed was in breach of its “procedural duty of loyalty and good faith”, and ordered it to pay the other party damages. Although the legal basis of the decision was stated differently from ITM, possibly on account of the claim for damages in Macron rather than simply as grounds for annulment of the underlying arbitral award as in ITM, the fundamental reasoning in the two cases appears to have been the same and akin to the rule of estoppel applied by the Court of Cassation in Golshani.
The Court of Appeal’s reasoning became more explicit in two 2004 decisions. In Exodis v Richo France,⁸ the Court of Appeal of Paris ruled that it was not admissible for Exodis to argue in annulment proceedings that the arbitral tribunal did not have jurisdiction over a contract that came into effect after the entry into force of the arbitration agreement when it had not made such a challenge before the arbitral tribunal itself, since by doing so Exodis was “contradicting itself”. In Cogecot v MCI,⁹ the Rouen Court of Appeal ruled on 25 November 2004 that a party that had argued on the merits before an arbitral tribunal that an alleged transfer of rights was inoperative was not permitted to argue in annulment proceedings that no arbitration agreement existed on the grounds that such arbitration agreement had been transferred along with the rights the transfer of which it had originally contested. The Court of Appeal referred expressly to the notion of ‘estoppel’, stating that “it follows from the principle of estoppel applicable to international arbitration that it is not permitted to rely upon the existence of facts that are in contradiction with one’s previous submissions”.
The Rouen Court of Appeal thus signalled the way for the Cour de Cassation in Golshani to refer explicitly to the notion of ‘estoppel’ thus confirming the underlying trend of the previous rulings based upon various but similar legal reasoning such as the inadmissibility for a party to contradict itself to the detriment of another or breach of the duty of loyalty and good faith in proceedings.
The fact that the notion of ‘estoppel’ as used by the Courts of Appeal and the Court of Cassation amalgamates a number of different legal bases previously stated in case law to the same end is an indication that the rule is not necessarily the same as any single one of the differing categories of estoppel recognised by the various common-law systems.
Indeed, modern common-law systems recognise at least five different types of estoppel:
• ‘Issue estoppel’, or ‘estoppel per rem judicatam’ prevents parties from relitigating issues already the subject of a judicial decision between them (and, as will be seen, is close to one of the historical origins for the other forms of estoppel recognised today).
• ‘Estoppel by representation of fact’, where one person has made a representation of fact to another person in words or by acts or conduct or (being under a duty to the other person to speak or act) by silence or inaction, with the intention (actual or presumptive) and with the result of inducing the other on the faith of such representation to alter his position to his detriment, means the representor is estopped as against the representee in any subsequent litigation between them from making any submission at variance with the former representation.
• ‘Proprietary estoppel’ is similar to estoppel by representation of fact except that the representation in question, which may be actual or promissory, is to the effect that the representee has or will acquire an interest in or rights over property of the representor. In a case where proprietary estoppel applies, the representor is prevented from insisting on his strict legal rights if to do so would be inconsistent with the representation made to the representee.
• ‘Promissory estoppel’ differs from estoppel by representation of fact in that the representation is not factual but promissory. Further, promissory estoppel in England and Wales is not, unlike in Australia, for instance, a cause of action or an independent source of obligations. It acts only as a defence – it is not a sword but a shield.
• An ‘estoppel by convention’ is an estoppel by representation of fact, proprietary estoppel or promissory estoppel in which the proposition (which in the other estoppels would constitute the representation) is made by mutual assent. Estoppel by convention is not therefore a true estoppel but the simple application of the law of contract such that detrimental reliance is not required if consideration is given.

These various different forms of estoppel all developed out of the original notion that a party could not relitigate or plead issues or matters that had already been determined judicially. The gradual weakening of the requirement that the issue in question be formally recognised through a judicial decision or a formal written deed, led to the modern notion of estoppel by mere representation of fact, where no form or formality attaches to the making of the representation or proposition. Whether the representation or proposition was made and is actionable are merely questions of evidence. While unconscionability or unfairness may well be the doctrinal foundation for all estoppels, there is still, however, today a generally held belief that a single formula is not capable of accommodating the many circumstances capable of giving rise to an estoppel. How valid such belief is remains open to question. There does indeed appear to be an underlying common principle whereby a party is afforded relief against another because the other, by the affirmation of a proposition, has induced him to act in such a way that it would be unfair or unconscionable to allow the other to deny that proposition. There does not seem to be any good reason against such principle operating as a cause of action in all cases in which it obtains (although this would be in conflict with the English law application of promissory estoppel). Equally, the fact that the affirmation may take different forms giving rise to different remedies (resulting in today’s different categories of estoppel) does not alone support the maintenance of separate legal doctrines or principles. It is indeed to be noted, as discussed further below, that under international law a single doctrine has existed for decades – suggesting that a merger of the different common-law categories should not cause any insurmountable doctrinal or philosophical problems.
The rule of ‘estoppel’ adopted initially by the Rouen Court of Appeal and then the Court of Cassation in Golshani has not as yet, however, been fully delineated. There is no doubt that it is distinguishable from the duty in French law to perform contractual obligations in good faith, not least because its scope is not limited to the performance of contractual obligations but also because the remedy is different, a breach of the duty of good faith sounding in damages whereas the effect of estoppel as recognised by the French courts is more akin to an injunction. Equally it is distinct from the principle of waiver, which is a unilateral act the effectiveness of which is not dependent upon showing detriment to the other party. While the notions of waiver and estoppel may frequently in fact overlap, there are numerous situations in which they do not, demonstrating the need to distinguish between the two. Thus, if a claimant brings proceedings before the state courts notwithstanding the existence of an arbitration agreement, the claimant will be held to have waived its right to arbitration. There is no question of the rule of estoppel applying. Where a claimant brings arbitration proceedings on the basis of an arbitration agreement, it may be estopped subsequently from arguing that no arbitration agreement exists. In this latter case, there is no scope for the principle of waiver.
The autonomy of the rule of estoppel crafted by the Court of Appeal of Rouen and the Court of Cassation out of the previous case law is therefore not open to much doubt. Exactly what constitutes such rule is less clear. Neither court clearly delineated the conditions that must be fulfilled before the rule may be applied. Equally, neither court intimated that it was considering one specific form of estoppel among a number of differing types – indeed, reference in each case is made to a single ‘rule’.
One approach to understanding the French court’s approach as suggested by one legal commentator¹⁰ is to presume that the French courts are reasoning by analogy with international law where a rule of estoppel has been developed and applied over many decades.¹¹ The case law of the International Permanent Court of Justice and subsequently the International Court of Justice on the notion of estoppel was affirmed in the Salvador/Honduras case.¹² The International Court ruled that for the rule of estoppel to apply, there must be
a representation by one party to another party or a position taken by it towards the other and the fact that the other party has relied upon the representation or position to its detriment or to the advantage of the party that made it or took it.

The notion is thus wider than the English law concept of estoppel by representation of fact and includes proprietary and promissory estoppels. The rule looks not simply at the possible detriment to the representee but also may be established by an advantage having been gained by the representor. It demonstrates the possibility of, and indeed advocates, a successful merger of the different common law doctrines into a single concept that would have the tremendous advantage of harmonising the approach both in common law and civil law systems, rendering the rule of estoppel more amenable to the realm of international arbitration where the two systems so frequently collide.
The true scope of the notion under French law nevertheless remains to be determined. There is still no certainty that the French courts will adopt wholesale the concept as crafted in international law. The recent ruling of the Paris Court of Appeal in Baste does little to advance the debate. Further decisions of the Court of Cassation are therefore awaited to refine the French version of estoppel. This requires, of course, a certain degree of awareness among litigating parties and more particularly their counsel of the possibilities both in attack and defence offered by the rule. Such awareness is far from widespread, as a recent decision of the Court of Cassation on 11 July 2006 shows. In Optimal v Michel & Sagua,¹³ the appellant argued that the arbitral tribunal that had rendered an award on the merits had done so in the absence of an arbitration clause. The clause in question was by any measure ‘pathological’. It was remarkably similar to that considered by the Paris Court of Appeal in Baste. It provided that before the institution of any judicial procedure, the parties to a dispute had to submit to an arbitral tribunal and that in the event that conciliation was not possible, the Versailles Commercial Court had jurisdiction. The clause seemed to refer in substance to conciliation rather than arbitration before the state courts had jurisdiction, just as the clause in Baste seemed to require an attempt at mediation before the courts could be seized of any dispute between the litigants. The defence raised by Optimal against the annulment proceedings brought by Sagua regarding the award rendered by the arbitral tribunal constituted under the pathological dispute resolution clause focused on two arguments: first that Sagua had not objected to the jurisdiction of the arbitral tribunal at the outset of the arbitral proceedings (in limine litis) as required, so Optimal argued, by article 74 of the New Code of Civil Procedure (NCPC); and that Sagua’s behaviour throughout the first two years of the arbitration proceedings was such that it had waived the right to challenge the existence of an arbitration agreement. The Court of Cassation dismissed the first of Optimal’s arguments on the grounds that article 74 of the NCPC does not apply to arbitral proceedings – a conclusion to which there can be little objection. In dismissing the second defence, the Court held that a waiver by a party of a right such as that to challenge the existence of an arbitration agreement must be considered throughout the entire proceedings and not at a single instance or for a particular period or episode. Since Sagua had refused to sign the terms of reference and had on a number of occasions argued that the proper jurisdiction of the state courts was being denied by the arbitral proceedings, there were no grounds to find that Sagua had waived its rights. An additional argument that Optimal could have made but failed to do so was based on the rule of estoppel given Sagua’s contradictory behaviour in the arbitral proceedings and the detriment caused thereby to Optimal. Sagua had, without making any reservation, designated one of the members of the arbitral tribunal, after having been enjoined by the President of the Paris Commercial Court (acting as juge d’appui) to do so, and had then placed on the record a first memorial in defence on the merits without challenging the jurisdiction of the tribunal or the arbitral nature of the proceedings. The facts were there for the Court of Cassation to make another foray into the land of estoppel, had Optimal been sufficiently attuned to the possibility of doing so. Unfortunately for the furtherance of an understanding of the French rule of estoppel this did not happen. It remains to be seen, therefore, how effective and widespread the rule of estoppel will become.

Multi-tiered dispute resolution clauses

A number of recent Court of Appeal and Court of Cassation cases have seen the French judiciary preoccupied by the true meaning and effect of multi-tiered resolution clauses where one party insists on a full and strict application of the different stages of the agreed dispute resolution process while the other argues for a more pragmatic approach, particularly where the preliminary stages are, as a matter of fact, doomed to failure (and thus arguably no more than a waste of time and money). The appropriate remedy for such failure by one party strictly to adhere to the terms of the multi-tiered clause is at the hub of these cases.
Since the decision of the mixed chamber of the Court of Cassation of 13 February 2003 in Poiré v Tripier,¹⁴ there is little doubt that in an appropriate case where an amicable resolution process has been agreed by the parties to be a binding prerequisite to the commencement of final and definitive proceedings (such as arbitration), the French courts and any arbitral tribunal applying French substantive law should treat as inadmissible any claim brought before them where the earlier amicable resolution stages of the clause have not been pursued by one of the parties against the will of the other.
The first point to note arising out of the Poiré v Tripier ruling is that much depends upon the true and proper meaning of the multi-tiered clause taken as a whole. In nearly every case, it will be the court or tribunal seized of the final dispute that will determine such true and proper meaning of the multi-tiered clause. An investigation into the intentions of the parties regarding the clause as a whole in the context of the overall contractual arrangement and relationship should be conducted. The question to be answered will be whether the parties intended to be bound by an obligation de résultat regarding the commencement of and participation in the earlier amicable resolution phase contemplated by the clause. If so, the ruling in Poiré v Tripier requires the court or tribunal to find that the substantive claim on the merits brought before it in violation of the amicable resolution phase is inadmissible in the circumstances (en l’état) unless the other party is found to have waived its right to observance of the amicable resolution stage or indeed is estopped from relying thereon.
While each case will inevitably turn on its particular facts, a number of guidelines can perhaps be ventured when interpreting the true meaning of the amicable resolution phase of the multi-tiered clause. Particular attention should be given to the phraseology of the clause. Thus in Société Editions RE v Perruche,¹⁵ the dispute resolution clause, contained in a collective agreement binding on journalists and their employers, included a recommendation to pursue conciliation before instituting proceedings for final resolution of any dispute under the Labour Code. The Paris Court of Appeal found that a mere recommendation was not binding and did not therefore create an obligation de résultat as to the institution and good-faith pursuit of conciliation proceedings. Where, on the other hand, as in Poiré v Tripier, the clause contains imperative language (“the parties shall submit the dispute to conciliation before instituting proceedings before the arbitral tribunal”) there would, in the absence of other indicators, be justification for finding that the parties intended conciliation (or some other amicable resolution process) to be a mandatory precursor to the final dispute resolution mechanism.
In cases where the language used in the clause is ambiguous, other factors will have to be considered. In cases where the parties have omitted to impose a time frame on the commencement and/or conclusion of the amicable resolution mechanism once the dispute has arisen, it may be reasonable to conclude that they did not intend resort to such mechanism to be mandatory – otherwise the clause would be rendered unworkable. Where the parties have referred to a particular set of ADR rules or to a particular ADR institution under the auspices of which the preliminary amicable resolution phase is to be pursued, it would be reasonable to infer an intention to be bound, absent other factors. The objective effectiveness of the amicable resolution mechanism may provide guidance as to the true intentions of the parties. Thus where the clause refers simply to a requirement that the chairmen of the respective parties are to meet and share their views on the dispute, it may be reasonable to infer that a binding process was not intended. Practice in the relevant industry may also be of assistance where there is an acknowledged trend to seek amicable resolution before resorting to a final and definitive resolution system. The relative strengths and weaknesses of the respective parties may also orientate the intended effect of the amicable resolution phase, given the risk of such a process becoming oppressive for a particularly weak party, such as a consumer confronted by a major professional retailer or distributor.
With regard to the last point, it is worth noting that in its activity report for 2005 (published in March 2006),¹⁶ the French Commission on Abusive Clauses referred to the apparent juxtaposition between Law no. 2005-67 of 28 January 2005 “aimed at reinforcing the confidence and protection of consumers”¹⁷ and a decision of the Court of Cassation rendered on the same day as the publication of the Law, namely 1 February 2005.¹⁸ The 2005 Law had added to the indicative list of abusive clauses those that placed an obstacle to the bringing of judicial proceedings by consumers, amending article L132-1 of the Consumer Code prohibiting professionals from requiring consumers exclusively to use an ADR. Such right to judicial proceedings must of course not only exist¹⁹ but also must be effective.²⁰
In its decision of 1 February 2005, however, the Court of Cassation ruled that a multi-tiered dispute resolution clause that provided for conciliation before proceedings could be brought before the courts in a consumer contract was not abusive. The reasoning of the Court appears to have been based on the fact that the prohibition on bringing judicial proceedings without first passing through the conciliation loop was of a temporary nature only. In the consumer context at least, however, such reasoning is imperfect, particularly given that the very purpose of the modified Law is to protect consumers against abuses by the stronger professional party. Such purpose is indeed reflected in the modified list of abusive clauses which (albeit indicatively) covers not only the suppression of the right to bring judicial proceedings but also its impediment. Conciliation presupposes a certain equality between the parties exemplified by a high degree of proximity, flexibility and pragmatism that is often absent from the consumer-professional relationship. If the rule in Poiré v Tripier is to be applied to multi-tiered dispute resolution clauses in consumer contracts, rendering inadmissible claims before the courts in violation of a prior amicable resolution procedure, the issue may not simply be one of a temporary delay in exercising the right to judicial proceedings, but rather a real risk that the bringing of judicial proceedings is rendered non-existent or at least ineffective in consumer cases involving multi-tiered dispute resolution clauses.
The second point to bear in mind arising out of the Poiré v Tripier decision is the fact that any finding that the claim before the final resolution forum is inadmissible when brought in breach of a binding prior amicable resolution procedure is made ‘in the circumstances’ as they exist at the relevant time of the court’s or tribunal’s decision. This means that the inadmissibility of the claim is temporary in nature and will only become definitive through extinction or confirmation once the amicable resolution phase has been completed. Thus, if the amicable resolution phase results in a settlement, the inadmissibility of the substantive court or tribunal proceedings will be confirmed; if, on the other hand, no settlement is reached in the contractually allotted timeframe, the inadmissibility of the substantive claim will be extinguished such that it can be revived and prosper. In the arbitration context, this means that a tribunal constituted to consider the claim on the merits can suspend its proceedings until the prior amicable resolution phase has been completed. Since the inadmissibility of the claim is ‘circumstantial’ it does not deny the tribunal’s jurisdiction but merely suspends it until the outcome of the amicable resolution phase.
The third point to note about the Poiré v Tripier case is the Court’s obiter dictum regarding the effect of a mandatory amicable resolution phase in a multi-tiered dispute resolution clause on the running of a limitation period. Although not seized of the issue, the Court stated that pursuit of the amicable resolution phase would suspend the running of any limitation period until its outcome. A word of caution, however, is necessary. Poiré v Tripier was a case of conciliation as opposed to any other form of amicable settlement mechanism such as negotiation and mediation. It may be overly bold, therefore, to extend what in any event is a mere obiter dictum to such other resolution mechanisms, particularly when they are not circumscribed by a set of procedural rules and an identifiable timetable. Further, the legal basis for suspending the running of any applicable limitation period was not identified by the Court, although a number of possibilities can be opined: the rule contra non valentem agere non currit praescriptio; good faith; or equity. In each case, the concerns raised by the consumer context and the Court’s decision in Foncia Franco Suisse may be attenuated by the application of the underlying rule. Time, once again, will tell.
Finally, the inadmissibility of the substantive claim on the merits does not prevent a party from seeking urgent provisional relief from the courts or tribunal where this is permitted under the applicable procedural rules.²¹ The reasoning is logical: given that a court granting provisional relief does not rule on the merits, it does not interfere with or prevent the amicable resolution process from proceeding.

Notes

1 Paris CA, 1st Ch C, Rép Gén 05/21985.
2 Bull Civ I, n° 302, Rev Arb (2005), 993, note Ph Pinsolle; RCDIP (2006), 602, note H. Muir Watt; D. 2006.1424, note E Agostini; D. 2005.Panor.2060, obs Th Clay.
3 Award no. 812, 2 March 1993, Yearbook of Commercial Arbitration, vol XIX (1994), 421.
4 Paris, 1st Ch C, 28 June 2001, Rev Arb 2002 163, note J Paulsson.
5 H Muir Watt, ‘Pour l’accueil de l’estoppel en droit privé français’, in L’internationalisation du droit. Mélanges en l’honneur de Yvon Loussouarn (Dalloz, 1994), 303.
6 Rev Arb (2002), 205
7 Rev Arb (2003), 173.
8 Rev Arb (2004), 683.
9 Gaz Pal, 28 April 2004, no. 118, p. 32)
10 Ph Pinsolle in his note to Golshani.
11 See, for example, the decision of the International Permanent Court of Justice in the Emprunts Serbes case of 1929 (CPJI, A Series, nos. 20 and 21))
12 13 September 1990, Rec CIJ, 1990, no. 63.
13 Cass 1st civ, 11 July 2006, no. 03-20.802, JCP G 2006, IV, 2782.
14 Rev Arb (2003), 403, note Jarrosson.
15 Paris Court of Appeal, 1st Ch C, 1 December 2005, Rev Arb (2006) 282.
16 See www.clauses-abusives.fr/activ/2005.
17 JO 1 February 2005, p. 1648.
18 Foncia Franco Suisse v CLCV, Bull Civ I, no. 64, p. 56; JCP G 2005, I, n 141, no. 14, note Sauphanor-Brouillard.
19 ECHR, 21 February 1975, no. 1/1973/11/18, Golder v UK; ECHR Rev Series A, no. 18, paragraph 36.
20 ECHR, 9 October 1979, no. 3/1978/26/41, Airey v Ireland; ECHR Rev Series A, no. 32.
21 See the ruling of the Court of Appeal of Paris in SCM Port Royal v Pebay et Samper, Rev Arb (2003), 403.

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