In this new episode of the Armamenti saga, the Paris Court of Appeal confirms that the extent of its control of a violation of public policy on account of an alleged inconciliability with a prior decision or arbitral award and the application of international sanctions is restricted.
As regards inconciliability of decisions, the Court makes five interesting statements. First, the Court confirms that the conciliability of decisions is part of French international public policy, and as such that the inconciliability of decision may be invoked for the first time before the annulment judge. Second, the Court underlines that the res judicata triple identity test is irrelevant and that inconciliability may be invoked whenever decisions are factually or legally related. Third, the Court notes that inconciliability may only be invoked between two executory decisions. Fourth, the Court considers that state decisions which incidentally decides on the validity of an arbitration agreement are entirely excluded from the scope of the 2001 Brussels I regulation. Fifth, the Court finds no violation of international public policy when the inconciliability of decisions is purely intellectual and does not entail the impossibility to execute both decisions simultaneously.
As regards international sanctions, the Court refuses to review the determination made by the arbitral tribunal that the embargo against Iraq did not apply to the claims presented before them, and therefore declines to take a “second look” at the application by arbitrators of international sanctions. This may distinguish the decision from the current trend to intensify the review of awards, or this may simply be guided by the fact that the execution of the award was bound to produce no concrete effect.
Iurgium [previously Spain Arbitration Review]