The French perspective on the judicial review of arbitral jurisdiction has a new chapter. Over the years, French courts have developed the de novo or full review of awards on issues of jurisdiction. While this allows the annulment judge to re-decide the jurisdictional issues addressed before the arbitral tribunal, this had been limited however to what the parties had submitted during the arbitral proceedings. Any argument or evidence not submitted was considered waived. After the Schooner saga, this review has transformed into an actual appeal, with new grounds, arguments, and evidence admitted for the assessment of the arbitral tribunal’s competence over the disputes. Such an extension of the scope of the review of issues of jurisdiction by the annulment judge however disregards the waiver resulting from such grounds, arguments or evidence not having been submitted during the arbitration. More importantly, it contradicts the principle under which the arbitral tribunal should be the first to rule on its own jurisdiction.
After a review of the Schooner saga, this article highlights the main French case law on the de novo judicial review of arbitral jurisdiction and its evolution until what appears to be the current extended scope of such review resulting from the Schooner decisions. Finally, the authors submit a critical perspective on such an extension in consideration to the principles of competence-competence and estoppel.
Iurgium [previously Spain Arbitration Review]