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The Guide to Challenging and Enforcing Arbitration Awards - First Edition

Arbitrability and Public Policy Challenges

Definitions

Arbitrability

Arbitrability refers to the question of whether a particular dispute may or may not be settled through arbitration. As explained by Professor Loukas A Mistelis, the issue of arbitrability ‘involves the simple question of what types of issues can and cannot be submitted to arbitration and whether specific classes of disputes are exempt from arbitration proceedings’.[2] Although it is established that parties are free to submit their dispute to arbitration, national laws have often restricted this freedom of access to arbitration, with regard to either certain matters or to specific persons.

Inarbitrability is one of the typical defences raised against the enforcement of an arbitral award. When faced with an inarbitrable dispute, an arbitral tribunal may be required to decline jurisdiction. If it fails to do so, the enforcement of its final award may be successfully challenged if the national law of the state where enforcement is sought considers the dispute to be inarbitrable.

For this reason, arbitrability has become a recurrent issue faced by arbitrators, judges and contract drafters. This has led to the development of the so-called ‘non-arbitrability doctrine’.[3] Commentators have drawn a well-established distinction between ‘objective arbitrability’ (or arbitrability ratione materiae), which depends on the subject matter of the dispute, and ‘subjective arbitrability’ (or arbitrability ratione personae), which relates to the aptitude of a party to submit disputes to arbitration.[4] Simply put, objective arbitrability relates to the question of ‘which’ matters can or cannot be submitted to arbitration. Criminal matters and matters relating to personal status (divorce, nationality, etc.) are typical examples of objectively inarbitrable disputes. However, subjective arbitrability answers the question of ‘who’ can or cannot resort to arbitration. This type of arbitrability typically arises when a state or a state entity is involved in the dispute. As described below, the difference between the two notions is recognised by the New York Convention and by most domestic arbitration laws.

With the aim of providing a clearer explanation of arbitrability, it has been common to link it to the notion of public policy. It is submitted that inarbitrable disputes usually involve matters of public policy. This common view also stems from the fact that the New York Convention, as we will see later, refers to arbitrability and public policy as defences to enforcement under the same Article – V(2)(a) and V(2)(b) respectively. However, despite the relevance of public policy to the discussion of arbitrability, the former is a broader notion and the mere involvement of public policy matters would not necessarily lead to the inarbitrability of the dispute.

Another distinction between both notions is that inarbitrability is usually invoked at the very beginning of the arbitration process, as an argument for the tribunal to decline jurisdiction, while public policy typically kicks in after the end of the arbitration, namely during the enforcement or annulment proceedings before domestic courts.[5]

Public policy

The notion of public policy is so vague that it may not appear to be easy to tell what constitutes a matter of public policy from what does not. Initially a French distinction, the sphere of internal public policy (ordre public interne) has been opposed to that of international public policy (ordre public international). While the former refers to domestic rules that cannot be contracted out of when the legal relationship is governed by the forum state’s law (e.g., French courts applying French law), the latter refers to the system of values that – given its widely agreed international nature – is so fundamental that it must be complied with whatever law governs the dispute. In other words, international public policy is a narrower category that covers only those universal rules that are considered by most nations as fundamental and mandatory. A domestic court would feel bound to apply those rules irrespective of the law applicable to the dispute.[6]

But what does international public policy exactly include? In fact, it has often been referred to the notion of mandatory rules of law (lois de police) as a subcategory of international public policy. These rules are designed to protect a public interest or policy. They must be applied regardless of the law applicable to the relationship. To define mandatory rules, one may refer to Article 9 of the Rome I Regulation, which states that:

[o]verriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation.[7]

Along the same lines, Professor Phocion Francescakis has explained that lois de police are ‘laws the observation of which is necessary for the safeguard of political, social and economic organisation’.[8]

However, these definitions have been criticised for being imprecise and too broad. It was argued that almost every law or regulation could be viewed as preserving a social or economic interest, and thus falling within the scope of said definition.[9] As Professor Pierre Mayer has pointed out, it is practically impossible to confine the notion of lois de police to one clear-cut definition, even if very broad or general.[10]

Hence, one can safely say that international public policy and the notion of lois de police are, and will probably remain, abstract concepts that would differ and evolve depending on the subjective view of each nation of what is part of the sphere of general interest or good morals that must be preserved and protected, notwithstanding the will of the parties or any otherwise applicable law.

Grounds upon which to challenge or oppose the enforceability of an award based on arbitrability or public policy

The arbitrability exception: Article V(2)(a) of the New York Convention

As mentioned above, the issue of arbitrability has mainly started to attract the interest of the arbitration community since it was listed by the New York Convention as one of the grounds for refusal of recognition and enforcement of arbitration awards. Article V(2)(a) of the Convention provides that a state may refuse to recognise or enforce an award if the subject matter of the dispute that led to the award is ‘not capable of settlement by arbitration’ under the state’s domestic law. Although neither the New York Convention nor its travaux préparatoires define this notion, the UNCITRAL Guide on the New York Convention (the UNCITRAL Guide) clearly provides that it refers to arbitrability. [11] More specifically, the Convention refers to objective arbitrability – ‘[t]he subject matter of the difference is not capable of settlement by arbitration’. Commentators have suggested that for the purposes of the application of the New York Convention, and given its pro-enforcement nature, arbitrability in this context should be construed narrowly.[12]

It should be noted that according to Article V(2)(a), arbitrability is to be assessed under ‘the law of that country’ where recognition and enforcement is sought and not under any other law, including the law of the seat. Accordingly, the issue of arbitrability pertains to the national legal order of the country of enforcement in such a manner that the subject matter of an award may be found arbitrable in one country and inarbitrable in another. That said, it is fair to add that there is almost a consensus among national courts that disputes of a purely commercial nature should be considered to be arbitrable. This consensus is less evident when it comes to disputes of a non-commercial nature (labour disputes, antitrust disputes, etc.).[13]

The public policy exception: Article V(2)(b) of the New York Convention

Article V(2)(b) allows the refusal of recognition and enforcement by the state where the enforcement is sought, when recognition or enforcement would be ‘contrary to the public policy of that country’.

The treatment of public policy under the New York Convention is very similar to that of arbitrability. It is agreed that, in this context, the notion of public policy should be given a restrictive interpretation. As noted by Loukas Mistelis, ‘[p]ublic policy, whatever it means, pursuant Article V(2)(b), must be construed narrowly’. [14] In line with this approach, the UNCITRAL Guide refers to the violation of the ‘core values of a legal system’ as a public policy basis for refusal of enforcement.[15]

Illustrations

In the United States, one must refer to the often-cited Parsons decision of the US Court of Appeals, which held that the public policy defence is relevant ‘only where the enforcement would violate the forum state’s most basic notions of morality and justice’.[16]

A similar approach can be found in France. Pursuant to Article 1520 of the French Code of Civil Procedure: ‘The setting aside is only available if . . . the recognition or enforcement of the award would be contrary to the international public order’.[17]

In applying this provision, the Paris Court of Appeal noted that Article V(2)(b) of the Convention refers to the international public policy of the host state, as opposed to its internal public policy. It further considered that the French conception of international public policy consists of ‘the body of rules and values whose violation the French legal order cannot tolerate even in situations of international character’.[18] In this respect, the Court refused to set aside an arbitral award resolving an employment dispute despite the fact that, under French law, employment disputes fall within the exclusive jurisdiction of the French labour tribunal. The Court found that the settlement of such disputes by arbitration would not be contrary to the fundamental principles of French international public policy.[19]

Swiss courts also adopt a restrictive definition of public policy. The Swiss Federal Tribunal considered that ‘[a]s an exceptional clause, the public policy reservation is to be interpreted restrictively’.[20] Accordingly, public policy would be violated only ‘when the recognition or the enforcement of a foreign award offends the Swiss concepts of justice in an intolerable manner’.[21]

Challenges of awards based on arbitrability

The law governing arbitrability

There is no consensus among arbitrators, judges and commentators with regard to which law should be applicable to the issue of arbitrability. Different laws may be involved, such as the law applicable to the arbitration agreement, to the main contract or to the procedure of the arbitration (in the case of objective arbitrability); the law of the parties or even international legal principles (in the case of subjective arbitrability). [22] The choice between these options would often differ depending on whether the question is raised (1) before an arbitral tribunal, (2) before a domestic court while the dispute is still pending in arbitration proceedings or (3) before a domestic court during a setting aside or enforcement procedure. For the purposes of this chapter, we are focusing on the latter.

As mentioned above, by referring to ‘the law of that country [i.e., the country where recognition and enforcement is sought]’, Article V(2)(a) of the Convention provides that arbitrability is to be assessed in accordance with the lex fori.

For example, in the context of enforcement or annulment proceedings, French courts apply French law (as the lex fori) to determine whether a dispute is arbitrable.[23] In particular, French courts apply a ‘material rule’, which consists of applying directly a substantive rule to the issue in question rather than determining which domestic law should govern it (as do conflict of laws rules). The relevant material rule, which is based on consistent case law, provides that as a matter of principle, international commercial disputes are arbitrable, subject to matters of international public policy.[24]

Similarly, in Switzerland, Article 177(1) of the Federal Statute on Private International Law provides that every dispute of a financial nature may be subject to arbitration.

Examples of awards annulled on the ground of inarbitrability

This section focuses on objective arbitrability challenges, as challenges based on subjective arbitrability have not given rise to any notable decisions in domestic courts.

As the confidence in international arbitration has been growing, countries have tended to limit the scope of inarbitrable disputes and to interpret narrowly the New York Convention’s phrase ‘not capable of settlement by arbitration’. [25] This trend of trust in arbitration was initiated in the United States and then expanded all over the world.[26] It continued to spread to include sometimes controversial matters, such as antitrust, intellectual property and insolvency issues.

While there is almost a consensus that disputes of a purely commercial nature are capable of settlement by arbitration, views are more divergent when it comes to disputes involving matters that are not purely commercial, such as labour, intellectual property, insolvency and antitrust disputes.[27]

The first significant case in this regard was the refusal by the Belgian Supreme Court to enforce an award on the ground of inarbitrability by virtue of a mandatory Belgian statute relating to exclusive distributorship agreements.[28]

As regards French case law, in an early landmark decision, the Tissot case, the French Supreme Court reversed a decision that ordered the enforcement of an award, on the ground that the Court of Appeal failed to examine whether a sale contract was contrary to public policy rules, in which case the dispute should have been considered inarbitrable.[29]

However, French courts have generally adopted a very liberal approach by extending the scope of the arbitrable sphere to include a wide range of disputes, even those involving questions of public policy, such as issues of fraud[30] and antitrust.[31] The remaining sphere of inarbitrable disputes relates to subject matters that were considered as inherently incapable of settlement by arbitration, the perfect example being disputes of a criminal nature.[32]

Challenges of awards based on public policy

Tribunals’ duty to apply mandatory rules

When thinking about arbitral tribunals’ duty to apply mandatory rules, the first question that naturally arises is: mandatory rules of which legal order? Is it the law of the country of the seat of arbitration? The law governing the contract between the parties? Or even for enforceability considerations, the law of the country where the parties may eventually wish to enforce their award (which obviously may not be predicted with any certainty by the tribunal in advance)?

It is commonly accepted that arbitrators have an obligation – at least in practice – to apply the mandatory rules of the country of the seat. Otherwise, their award would be at significant risk of being set aside.[33]

A similar level of deference should be accorded to the mandatory rules of the law governing the contract. An award in clear violation of any such law may face enforcement challenges. As a learned author concluded ‘[f]ailure to apply a mandatory rule of [the law governing the contract] by an international commercial arbitrator is not often fatal to the award or to the arbitrator’s future employment, albeit it can endanger the enforcement of the award in certain jurisdictions as well as render the arbitral process less credible to many users of international arbitration’.[34]

Turning to the question of the mandatory rules of the country where the enforcement is expected to be sought, this is a much more complex – and controversial – task for the arbitrators. Although it is submitted that arbitrators should be keen to render an enforceable award, it is a discomforting situation for an arbitrator to be asked to speculate and predict in which states the parties may wish to enforce the award. This task becomes even harder when the answer would involve more than one state with conflicting mandatory laws.

That said, it is submitted that the main – if not the only - reason why an arbitrator would apply mandatory rules of law is having the aim of rendering an enforceable award.[35] There is no doubt that this question naturally occupies a place in any commercial arbitrator’s mind. No arbitrator would like to see his or her award to be inefficient; the same applies to the parties, or at least to the prevailing party.

In this sense, the law of the country of enforcement is of great importance in practice, as we will see in the next subsection.

Examples of awards annulled on the ground of a breach of public policy

As discussed earlier, French courts adopted a restrictive interpretation of public policy by limiting its rejection to only those awards for which enforcement would be in clear violation of its international public policy.

This arbitration-friendly approach has been evolving. At an early stage, one should refer to the Dutco decision in which the French Supreme Court overturned a Court of Appeal’s decision that had rejected an annulment application, as the Supreme Court found that the principle of equality of the parties was violated.[36] A similar decision was reached in another case when the Paris Court of Appeal found that the award was obtained by fraud.[37]

Later decisions have reflected the evolution of a liberal approach in France. French courts have held in several decisions that an award shall be annulled (or its enforcement rejected) only when the violation of public policy is ‘flagrant, effective and concrete’.[38] The rationale behind this position stemmed from the courts’ conviction that their role in the review of foreign awards should be limited and should not extend to the merits of the case. In other words, the courts’ review should not amount to a re-adjudication of the dispute, even when requested to review the award’s compliance with international public policy. In this sense, courts tended to review the awards in law, without re-examining the facts already decided by arbitral tribunals.

This restricted control became the legal test applied by French courts for many years. However, in more recent years, and following the criticism of what has been viewed as too liberal an approach, French courts have seemed to take a step back and have started to move towards a tighter control of awards. The Paris Court of Appeal has considered on more than one occasion that it is vested with the power of examining all the elements of the awards, including the facts of the dispute. For instance, the Court has recently admitted the setting aside of an ICC award on the ground that the investment was procured by fraud and that, by entertaining that fraud, the award had breached a foreign country’s sovereignty over its natural resources, which is part of French international public policy. To reach this decision, the Court reinvestigated the facts of the case, including forgery and fraud allegations. The Court held that, in reviewing whether the award complied with French international public policy, it has the power to examine ‘in law and in fact all the elements relating to the defects in question’.[39]

Along the lines of the French perspective, most state courts have given a narrow interpretation to the public policy exception. Hence, the challenge of the enforcement of awards on that ground has been rarely successful.[40] As noted by the UNCITRAL Guide, those rare instances have included cases where the award was considered as contrary to the national interest of the enforcement state,[41] to its core constitutional values[42] or to a previous judgment of its courts.[43]

Awards annulled for failure to apply overriding mandatory provision (lois de police)

Overriding mandatory rules constitute a typical public policy defence against the recognition and enforcement of awards. However, just like any other public policy defence, mandatory rules of the forum state are viewed by most jurisdictions as an exceptional basis for annulment or refusal of enforcement. Hence, this defence has been successful only in rare cases. Typically, those cases related to issues of fraud, corruption, antitrust or insolvency.[44]

In the United States, only awards that violate mandatory rules in highly regulated fields have been subject to annulment.[45] For instance, an award was vacated on the ground that it was contrary to ‘the well-defined public policy against intentional dishonesty by police officers in connection with their employment’.[46]

German courts have ruled that insolvency matters are part of German mandatory rules, and thus have annulled arbitral awards in violation of those rules.[47] The same was decided in relation to serious violations of German foreign exchange regulations,[48] competition law[49] and human rights.[50]

In Asia, Chinese courts have rejected the recognition of an award that was considered contrary to the mandatory prohibition of future contracts[51] and Indian courts refused to enforce an award conflicting with a previous export ban.[52]

Annulment of awards on the ground of corruption

The prohibition of corruption is an integral part of international public policy in almost all countries. In this sense, an award giving effect to corruption may be set aside under Article V2(b) of the New York Convention.

In France, corruption is considered to be one of the serious violations that cannot be tolerated by the French legal order, even in an international context. For this reason, the Paris Court of Appeal has been very strict when dealing with allegations that awards had given effect to investments or contracts that were procured by corruption. The Court has consistently held that it has the power to conduct a full review of all the factual and legal elements of the award while investigating corruption allegations.[53] This extensive approach has been upheld by the French Court of Cassation.[54]

Unlike the French approach, English courts generally tended to abide by arbitrators’ findings on bribery or corruption allegations, even though a different result could have been reached by applying English law. In this respect, if an allegation of bribery had been dismissed by the arbitral tribunal, an English court would not re-examine the arbitrators’ decision during enforcement proceedings.[55] In rejecting an application against the enforcement of an arbitral award, the English High Court clearly held that ‘[a]n arbitration award made under a foreign proper and curial law [Swiss law], which had specifically found that there was no corruption practice, should be enforced in England even if English Law would have arrived at a different result on the ground that the underlying contract breached public policy because its performance involved a breach of statutory regulation in the place of performance [Algerian law]’.[56]

Similarly, the Swiss Federal Tribunal considered that the payment of bribes is contrary to Swiss public policy, while ultimately concurring with the arbitrators’ finding that the bribery allegation was not proven conclusively. The Tribunal held that, in any case, the investigation of such allegations are ‘beyond the review of the Federal Tribunal’.[57]

Although, in almost all jurisdictions, bribery and corruption are contrary to international public policy, and thus are valid grounds for annulment, such an argument has been rarely successful in practice, mainly as a result of difficulties relating to evidence.

The Achmea and Micula cases: bases for new challenges on the ground of inarbitrability or breach of public policy?

With the recent decision issued by the European Court of Justice in the Achmea case,[58] and subsequent examples of domestic courts staying or refusing the enforcement of awards issued in disputes relating to intra-EU bilateral investment treaties (BITs),[59] arbitration practitioners will witness an increase in challenges based on the inarbitrability of intra-EU arbitration disputes. While this argument should only be raised in the context of disputes based on intra-EU BITs – which were the only disputes that the European Court of Justice had in mind in the Achmea decision – it is to be expected that litigants try to bring the same argument in the context of commercial disputes on the ground that only domestic EU courts should be empowered to apply EU law.


Notes

[1] Elie Kleiman is a partner and Claire Pauly is a senior associate at Jones Day in Paris. The authors wish to thank Mr Hady Gouda for his invaluable help in preparing this chapter.

[2] Loukas A Mistelis and Stavros L Brekoulakis (editors), ‘Arbitrability: International and Comparative Perspectives’, International Arbitration Law Library, Volume 19 [Mistelis and Brekoulakis], pp. 3 and 4, paras. 1 to 6.

[3] Gary B Born, International Commercial Arbitration: ‘Commentary and Materials’ (2nd Edition) [Born], p. 243.

[4] See for example, Christophe Seraglini and Jérome Ortscheidt, ‘Droit de l’arbitrage interne et international’ (edition 2013) [Seraglini and Ortscheidt], pp. 529 and 530, para. 62. See also Piero Bernardini, ‘Chapter 17: The Problem of Arbitrability in General’, in Emmanuel Gaillard and Domenico Di Pietro, Enforcement of Arbitration Agreements and International Arbitral Awards: The New York Convention in Practice (edition 2008, by Cameron May), p. 503.

[5] Karl-Heinz Bockstiegel, ‘Public Policy and Arbitrability’, in Pieter Sanders (ed), Comparative Arbitration Practice and Public Policy in Arbitration, ICCA Congress Series, Volume 3 [Bockstiegel], p. 178.

[6] George A Bermann, ‘Introduction: The Origin and Operation of Mandatory Rules’, in George A Bermann and Loukas A Mistelis, Mandatory Rules in International Arbitration (edition 2011) [Bermann and Mistelis], p. 4.

[7] Article 9, Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).

[8] Répertoire de droit international, Dalloz, 1ère éd., Conflits de lois, No. 137.

[9] Pierre Mayer and Vincent Heuzé, Droit international privé (10th edition), pp. 91 and 92, paras. 121 to 123.

[10] id., p. 92, para. 123.

[11] UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), (2016 Edition), pp. 228 and 229, paras. 7 and 8.

[12] id., p. 230, para. 12.

[13] id., pp. 232 to 236.

[14] Mistelis and Brekoulakis, p. 2, paras. 1 to 3.

[15] The UNCITRAL Guide, p. 240, para. 4.

[16] Parsons & Whittemore Overseas v. Société Générale de l’Industrie du Papier (RAKTA), Court of Appeals, Second Circuit, United States of America, 508 F.2d 969, 974 (1974).

[17] Emphasis added.

[18] Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar v. M. N’DOYE Issakha, Paris Court of Appeal, 16 October 1997, No. 96/84842.

[20] Swiss Federal Tribunal, 28 July 2010, Decision No. 4A_233/2010, para. 3.2.1.

[21] ibid.

[22] Bockstiegel, pp. 184 and 185.

[23] Seraglini and Ortscheidt, p. 533, para. 631.

[24] Seraglini and Ortscheidt, p. 548, para. 645.

[25] The UNCITRAL Guide, p. 232.

[26] Seraglini and Ortscheidt, p. 546.

[27] id., pp. 232 to 236.

[28] Belgian Supreme Court, Audi-NSU v. Adelin Petit & Cie, 28 June 1979. See also, Bernard Hanotiau, ‘The Law Applicable to Arbitrability’, Singapore Academy of Law Journal (2014) 26, fn. 30.

[29] Cass. com., Tissot v. Neff, 29 November 1950. See also, Emmanuel Gaillard and John Savage, Fouchard Gaillard Goldman on International Commercial Arbitration (Kluwer Law International 1999) [Gaillard and Savage], p. 334.

[30] Gaillard and Savage, pp. 336 and 337.

[31] Paris Court of Appeal, 19 May 1993, Labinal v. Mors, 1993 Rev. Arb. 645.

[32] Seraglini and Ortscheidt, p. 551, para. 649.

[33] Laurence Shore, ‘Chapter 4: Applying Mandatory Rules of Law in International commercial Arbitration’, in Bermann and Mistelis, p. 131.

[34] id., p. 132.

[35] Christophe Seraglini, Lois de police et justice arbitrale international, éditions Dalloz 2001.

[36] Cass. civ. 1ère, B.K.M.I. v. Dutco, 7 January 1992, 1992 Bull. Civ. I, No. 2.

[37] Paris Court of Appeal, 10 September 1993, 1994 Rev. Arb., p. 359, note D Bureau, cited in Seraglini and Ortscheidt, p. 890, fn. 385.

[38] Paris Court of Appeal, SA Thalès Air Défense v. GIE Euromissile, 18 November 2004. See also, Paris Court of Appeal, Cytec, 23 March 2006, Rev. arb. 2007.100, note S Bollée.

[39] Paris Court of Appeal, 16 January 2018, No. 15/21703.

[40] The UNCITRAL Guide, p. 248 et seq.

[41] id., citing United World v. Krasny Yakor, Federal Arbitrazh Court of the Volgo-Vyatsky Region, Russian Federation, Case No. A43-10716/02-27-10, 17 February 2003.

[42] id., citing BCB Holdings Limited and The Belize Bank Limited v. The Attorney General of Belize, Caribbean Court of Justice, Appellate Jurisdiction, 26 July 2013 [2013] CCJ 5 (AJ).

[43] id., citing Hemofarm DD, MAG International Trade Holding DD, Suram Media Ltd v. Jinan Yongning Pharmaceutical Co. Ltd, Supreme People’s Court, China, 2 June 2008 [2008] Min Si Ta Zi No. 11.

[44] Born, ‘Chapter 25: Annulment of International Arbitral Awards’, pp. 3321 and 3322.

[45] ibid.

[46] id., citing Town of Stratford v. AFSCME, Council 15, Local 407, 60 A.3d 288, 293 (Conn. App. 2013).

[47] UNCITRAL Guide, p. 246, citing Oberlandesgericht [OLG] Karlsruhe, Germany, 9 Sch 02/09, 4 January 2012.

[48] id., citing Bundesgerichtshof [BGH], Germany, II ZR 124/86, 15 June 1987.

[49] id., citing judgment of 8 August 2007, 4 Sch 03/06 (Oberlandesgericht Jena).

[50] id., citing judgment of 20 April 2005, 11 Sch 01/05 (Oberlandesgericht Dresden).

[51] id., citing Lanfang Fei, ‘Public Policy as a Bar to Enforcement of International Arbitral Awards: A Review of the Chinese Approach’, 26(2) Arbitration International 301, 305 and 306 (2010).

[52] id., citing COSID Inc. v. Steel Authority of India Ltd, High Court of Delhi, India, 12 July 1985, XI Y.B. Com. Arb. 502 (1986).

[53] Paris Court of Appeal Paris, 21 February 2017, No. 15/01650; Paris Court of Appeal (setting aside an arbitration award on the ground of corruption and money laundering); Paris Court of Appeal, European Gas Turbines SA v. Westman Int’l Ltd, Yearbook Commercial Arbitration, Volume XX (1995), p. 198 (refusing the recognition of an award on the ground that the contract was obtained through bribery). See other decisions where the Court of Appeal applied the same extensive review, yet, without establishing bribery: Paris Court of Appeal, Gulf Leaders for Management and Services Holding Company v. SA Crédit foncier de France, 4 March 2014, Rev. arb. 2014.955, note L.-Ch. Delanoy; Paris Court of Appeal, République du Congo v. S.A. Commissions Import Export (Commisimpex), 14 October 2014.

[54] Cass. civ. 1ère, 13 September 2017, No. 16-25.657.

[55] Born, ‘Chapter 26: Recognition and Enforcement of International Arbitral Awards’, pp. 3673 and 3674.

[56] English High Court, Omnium de Traitement et de Valorisation SA v. Hilmarton Ltd [1999] 2 Lloyd’s Rep. 222, 224 (QB).

[57] Swiss Federal Tribunal, 17 January 2013, Decision No. 4A_538/2012, para. 6.2.

[58] The European Court of Justice, Slowakische Republik v. Achmea BV, Judgment of the Court (Grand Chamber) of 6 March 2018, No. C-284/16.

[59] Nacka District Court, Micula v. Romania, 23 January 2019 (a Swedish court refusing to enforce an ICSID award against Romania); English Court of Appeal, Micula v. Romania, 27 July 2018 (upholding the stay of enforcement of an ICSID award against Romania); German Federal Court of Justice, Achmea v. Slovakia, 31 October 2018 (Germany’s top court setting aside an UNCITRAL award against Slovakia); Svea Court of Appeal, PL Holdings v. Poland, 13 June 2018 (a Swedish court staying the enforcement of an intra-EU investment treaty award against Poland).