Four topics will be discussed in this update on arbitration law in France arising from recent French court decisions. First, the Garoubé case gave rise to the question of whether the juge d'appui could extend his jurisdiction so as to enjoin an arbitral institution to amend its administrative decisions in case of a risk of denial of justice caused by the impecuniosity of a party. Second, in the Vasarely case, the French Civil Supreme Court was given the opportunity to specify the extent and nature of the review to be carried out by judges to characterise the violation of public order in the case of allegations of fraud. Third, the Tecnimont decision rendered by the Paris Court of Appeal on 12 April 2016 provides further clarifications on arbitrators' duties of independence and impartiality, along with their related obligation to disclose and ongoing duty to inform. Lastly, since last year's review, the French Civil Supreme Court upheld the Paris Court of Appeal's decision rendered in the Tapie case, which called into question the previously clear distinction between international and domestic arbitration under French law.
Impecuniosity of a party and ‘juge d'appui': the Garoubé case
The Projet Pilote Garoubé v International Chamber of Commerce case raises the question of the jurisdiction of a judge acting in support of arbitration (juge d'appui) when faced with the impecuniosity of a party. Shall the juge d'appui have jurisdiction to enjoin an arbitral institution to lift the suspension of the proceedings, which was a consequence of an impecunious party's failure to pay separate advances on costs?
By way of background, Decree No. 2011-48 dated 13 January 2011 (the Decree) extended the jurisdiction of the juge d'appui. Pursuant to article 1505(4) of the French Code of Civil Procedure (CCP), in international arbitration, and unless otherwise stipulated, the juge d'appui shall be the President of the Paris Tribunal de grande instance, when one of the parties is exposed to a risk of denial of justice. Pursuant to article 1506(2) CCP, the juge d'appui will intervene to solve any problems arising out of the constitution of the arbitral tribunal (including problems with respect to the removal, incapacity to act, resignation, and challenge of arbitrators) and to extend the deadlines to render the final award, where the arbitration is ad hoc or administered by a non-existing or deficient arbitral institution.
Even before the entry into force of the Decree, French case law had expanded the jurisdiction of the juge d'appui in four directions, namely: (i) the juge d'appui can intervene in order to settle any difficulties with respect to the arbitral tribunal after it has been constituted, such as the death of an arbitrator during the arbitral proceedings;1 (ii) the juge d'appui has jurisdiction to appoint a co-arbitrator in the stead of a non-participating party provided there is a link between the proceedings and France;2 (iii) the juge d'appui can select the arbitration institution when the arbitration agreement is pathological;3 and (iv) the juge d'appui can issue declarations with respect to the constitution of the arbitral tribunal to prevent any future disputes.4
In a decision of 16 November 2015 against the International Chamber of Commerce (ICC), the President of the Paris Tribunal de grande instance surprisingly extended the jurisdiction of the juge d'appui to allow his intervention every time the impecuniosity of a party exposes said party to a risk of denial of justice. This decision was rejected by the Paris Court of Appeal on 24 May 2016. Since a further appeal has been lodged, the matter is now pending before the French Civil Supreme Court.
In brief, the facts of this case are as follows.
The state of Cameroon and Garoubé concluded a farm leasing agreement providing for arbitration under the ICC Rules. The contract was terminated, and Garoubé filed a request for arbitration in 2007. Per the parties' subsequent agreement, the seat of the arbitration is Paris (France). Apart from the present topics related to the impecuniosity of a party and the juge d'appui, this case is notorious since the constitution of the arbitral tribunal gave rise to significant difficulties: an arbitrator resigned in 2010; the challenge of another arbitrator was accepted by the International Court of Arbitration of the International Chamber of Commerce (the ICC Court) in 2011; the partial award on jurisdiction was annulled by the Paris Court of Appeal in 2012 on the ground that the arbitral tribunal was not properly constituted; and a new arbitral tribunal was constituted in 2013. In June 2014, the ICC Court readjusted the advance on costs, and informed the parties that failing receipt of the requested payments (ie, US$65,000 from Garoubé and US$215,000 from the state of Cameroon) within the stipulated deadline, separate advances on costs would be fixed (ie, US$376,000 from Garoubé and US$215,000 from the state of Cameroon). Garoubé failed to pay its shares of the global advance on costs, and the ICC Court fixed separate advances on costs. Garoubé argued that it could not make any further payment and invited the arbitral tribunal to accept its withdrawal from the latest phase of the proceedings, which was rejected by a procedural order on 23 August 2014. As Garoubé did not make any payments towards the separate advance on costs, on 27 March 2015, the Secretary General of the ICC Court invited the arbitral tribunal to suspend its work and ultimately, Garoubé's claims were considered withdrawn by the ICC Court.
Garoubé filed a motion before the juge d'appui to, inter alia, enjoin the arbitral tribunal to reconsider a certain number of its procedural decisions, and the ICC Court to lift the suspension of the proceedings and reconsider its decisions to fix separate advances on costs and withdraw Garoubé's claims. While the juge d'appui declined any jurisdiction to enjoin the arbitral tribunal, he considered that the principle of subsidiarity did not prevent him from intervening in a procedure administered by an arbitral institution. The juge d'appui stated that: ‘the juge d'appui does not have the power to take any decision which would interfere with the administration powers of the ICC beyond what is strictly necessary to ensure Garoubé's access to its judge.' As a result, he carried out an in-depth analysis to establish whether each of Garoubé's allegations caused a risk of denial of justice. On the one hand, he found that the ICC Court did not cause a risk of a denial of justice with regard to the fact that the proceedings had already lasted seven years without a final award having been rendered, or from the advances on costs having been readjusted on several occasions, for this had been caused by Garoubé's own procedural behaviour. On the other hand, he found that the ICC Court caused a risk of denial of justice by fixing separate advances on costs and withdrawing Garoubé's claims for failure to pay said advance. In particular, the juge d'appui considered that there was no counterclaim pursuant to article 64 CCP, and thus the ICC Court erred in its analysis by fixing advances on costs based on the ground that the state of Cameroon had filed counterclaims. Moreover, the juge d'appui deemed that Garoubé's impecuniosity was ‘manifest', as the corporate structure it created with the state of Cameroon had no more operations, Garoubé could not generate any income since it left Cameroon and had devoted all its remaining resources to financing the arbitration proceedings. Therefore, the juge d'appui enjoined the ICC Court to lift the suspension of proceedings and reinstitute Garoubé's claims.
The Paris Court of Appeal quashed the decision of the juge d'appui for excess of power, which was welcomed by certain authors.5 The excess of power was manifest for two reasons. First, the arbitration was not ad hoc but administered by a properly functioning institution (ie, the ICC) and Garoubé's claims turned on the interpretation of the ICC Rules. Therefore, the Paris Court of Appeal specified that such claims should be heard by the ordinary judges who have jurisdiction to hear any complaints related to the administration of arbitration proceedings by the arbitral institution. Moreover, Garoubé's complaints did not deal with the constitution of the arbitral tribunal even if said constitution is to be construed broadly. Secondly, the Paris Court of Appeal also noted that since the decision of the juge d'appui impacted the rights of the state of Cameroon and that the latter was not a party to the proceedings between the ICC and Garoubé, there was a violation of due process tantamount to an excess of power. Finally, as a further appeal has been launched, this matter should be resolved by the French Civil Supreme Court in 2017.
Fraus omnia corrumpit: the Vasarely case
The Vasarely case is a recent illustration of the application of the principle fraus omnia corrumpit in French arbitration law, and gave rise to similar concerns that had arisen in the Tapie case. On 4 November 2015, the French Civil Supreme Court upheld the decision of the Paris Court of Appeal of 27 May 2014,6 which annulled the two awards rendered within the context of a sham arbitration.
The artist Vasarely and his spouse created the Vasarely Foundation in 1971. A dispute arose between the Foundation and the heirs of the artist. French law grants a certain reserved portion of an estate to the heirs, and the Vasarely heirs argued that the donations made to the Foundation exceeded the disposable part of the estate. On 19 June 1995, the Foundation, represented by the heirs and its President Ms Michele Taburno Vasarhelyi, who is the spouse of one of the heirs, concluded an arbitration agreement to resolve said dispute. Pursuant to the arbitration agreement, two awards on the merits were rendered on 11 December 1995 and on 7 February 1996 in favour of the heirs, and the Foundation decided not to seek to set aside said awards. These awards were granted exequatur on 20 January 1997. In April 2008, the Foundation represented by its receiver started proceedings to annul these awards, on the ground that the arbitration proceedings constituted a sham, which was contrary to public order based on former article 1484(6) CCP (equivalent to current article 1492(5) CCP). The receiver alleged that the arbitration proceedings constituted a fraud, so that the heirs, with the assistance of, inter alia, the arbitral tribunal and the President of the Foundation, were able to take ownership of the entirety of the pieces of art which had been donated by the artist himself and his spouse to the Foundation.
Following a thorough review of the facts which established that the arbitration proceedings were fraudulent, the Paris Court of Appeal noted that (i) the Foundation, chaired by the spouse of one of the heirs, and claimants in the arbitration proceedings, accepted to submit the dispute to arbitration; (ii) one of the co-arbitrators had a conflict of interest, since he was the notary public of the Vasarely family and in charge of drafting the deeds of donation in favour of the Foundation; (iii) no recourse was made to an independent expert in order to assess the financial value of the donations made by the artist and his spouse to the Foundation; (iv) the arbitral tribunal referred to only two pieces of art sold in 1990 to assign a financial value to the entirety of the donations; and (v) the Foundation refused to seek to set aside the two awards, despite reservations made by supervisory authorities and the fact that their enforcement would endanger the continuity of the Foundation. In light of the above, the Paris Court of Appeal concluded that ‘the combination of all these elements is sufficient to characterise the fraudulent collaboration of the parties to the arbitration proceedings.' The heirs appealed the Paris Court of Appeal's decision, which was subsequently upheld by the French Civil Supreme Court on 4 November 2015. The French Civil Supreme Court decided that: ‘in light of the circumstances in which the arbitration proceedings were decided, organised and conducted, the latter proceedings were a sham put in place by the heirs of the artist to favour their interests to the detriment of those of the Foundation; the Court of Appeal could therefore deduce, without any distortion, the existence of a fraudulent arbitration, which is contrary to public order.'
Under French law, fraud has been deemed a violation of public order and therefore public order constitutes a ground for annulling any awards rendered in result thereof since the Westman case (Paris Court of Appeal, 30 September 1993).7 The nature of the review of any violation of public order has been discussed extensively. French case law distinguishes whether the public order is of procedural or substantive nature and provides for a different review as a result. For any violation of the substantive public order, French judges will conduct a prima facie review and limit themselves to examine whether the violation of public order is ‘blatant, effective and concrete' without carrying out a de novo review on the merits of the dispute.8 However, for any violation of procedural public order such as fraud, the Paris Court of Appeal has applied another method: ‘it is incumbent upon the judge granting the exequatur to examine all circumstances likely to characterise the alleged fraud, and as long as the dispute deals precisely with the tampering, by a party's fraudulent behaviour, of the assessment of facts originally carried out by the arbitrators, the prohibition of any review of the merits of the award cannot constitute a valid argument against the review of said assessment' (Paris Court of Appeal, 1 July 2010).9 Furthermore, the French Civil Supreme Court and the Paris Court of Appeal have regrettably taken different approaches to the review of potential violations of public order with respect to fraud: whereas the French Civil Supreme Court does not allow judges to review de novo the facts analysed by the arbitral tribunal and requires that the violation be blatant, effective and concrete, by contrast the Paris Court of Appeal invites the judges to review elements of fact and has required from time to time that said violation be effective and concrete but not blatant.10
In the Vasarely case, the French Civil Supreme Court did not object to the in-depth analysis carried out by the Paris Court of Appeal and exercised a review over said analysis of facts to finally embrace the conclusions reached by the Paris Court of Appeal. Regrettably, however, the French Civil Supreme Court did not specify whether, in the case of allegations of fraud, the violation of public order should be effective, concrete and/or blatant in order to clarify the current case law in this regard.
The arbitrators' disclosure obligations: the Tecnimont saga continues
The previous edition of this chapter reported on the French Civil Supreme Court's decision dated 25 June 2014 in the Tecnimont saga. This judicial saga deals with two issues, namely (i) the scope of arbitrators' disclosure obligation with respect to their independence and impartiality and (ii) the binding nature of arbitral institutions' rules. With respect to this decision, the authors of this review had previously noted that the French Civil Supreme Court reinforced the contractual value of institutional rules and thus the parties' obligation to file challenges against arbitrators within the deadlines set under said rules, but that it failed to render a much awaited decision on the scope of the arbitrators' disclosure obligation with respect to their independence and impartiality.11 On 12 April 2016, the Paris Court of Appeal, to which the case was remitted, delivered the fifth decision in this judicial saga.
By way of reminder, a partial award on liability was rendered on 10 December 2007 under the aegis of the ICC and found the company Avax to be liable. Prior to the issuance of this award, in September 2007, Avax had filed a challenge with the ICC against the President of the arbitral tribunal after he disclosed certain information in July 2007 upon Avax's requests, and the ICC found that said challenge raised after the 30-day deadline (from the date the relevant information became known) was not admissible. Although Avax continued to participate in the arbitration, it reserved its rights to challenge the constitution of the arbitral tribunal. After the issuance of the partial award, Avax challenged the award on the ground that the arbitral tribunal was not properly constituted. These set aside proceedings have already given rise to four decisions: on 12 February 2009, the Paris Court of Appeal decided to set aside the award, a decision that was quashed by the French Civil Supreme Court on 4 November 2010; subsequently, the Reims Court of Appeal to which the decision was remitted also decided to set aside the award on 2 November 2011, a decision that was also quashed by the French Civil Supreme Court on 25 June 2014.
In the fifth decision, the Paris Court of Appeal upheld the award and found that there was no irregularity in the constitution of the arbitral tribunal. In particular, it considered that:
- The facts allegedly discovered by Avax after the ICC's 30-day deadline which formed the basis of the challenge before the ICC were public knowledge as they were accessible on the internet. Therefore, they could have been easily known by Avax, had Avax carried out some research immediately upon receipt of the President's clarifications in July 2007. The Paris Court of Appeal concurred with the ICC Court's decision to consider Avax's challenge inadmissible and stated that Avax was not entitled to bring the same allegations in an action to set aside the award.
- The facts allegedly discovered by Avax after the challenge was filed before the ICC were not significant enough to exacerbate the doubts on the President's independence and impartiality.
In this case, the Paris Court of Appeal acknowledged that the disclosure obligation constitutes a burden which rests upon the arbitrator's shoulders and this obligation should be assessed with respect to the notoriety of the alleged facts, their links with the dispute and their impact on the decision of the arbitrators.
First, the Paris Court of Appeal's decision of 12 April 2016 implies that only significant information, exacerbating the reasonable doubts parties may have, should be disclosed. This requires that arbitrators select the relevant information to be disclosed, thereby setting a fair balance on their disclosure obligation. For example, in the GAT v Republic of Congo case, the Versailles Court of Appeal, to which the case was remitted by the French Civil Supreme Court,12 decided that the failure by an arbitrator to disclose his personal ties with a company affiliated to one of the Republic of Congo's counterparties did not constitute sufficient grounds for annulment as it had no impact on the outcome of the case.13 One can assume that the criterion of the significance of the information will give rise to many disputes in the future.
Secondly, this decision also implies that parties have to carry out research on their own to examine the arbitrators' independence and impartiality. This reasoning has also been stated in another recent case,14 but stands in stark contrast to the French Civil Supreme Court's decision in the Columbus Acquisition and Columbus Holdings v AGI case.15 In the latter, the French Civil Supreme Court upheld the Paris Court of Appeal's decision,16 whereby it stated that the parties were under no obligation to conduct any further research on the arbitrators' independence or impartiality once the arbitration had started.
Finally, the Paris Court of Appeal's decision of 12 April 2016 confirms that parties have to file any challenge with the necessary celerity, failing which they are deemed to have waived their right to set aside awards based on the irregularity of the constitution of the arbitral tribunal pursuant to article 1466 CCP.17 This is in line with another recent decision rendered by the French Civil Supreme Court, whereby it deemed that a party waived its right to set aside an award signed by a truncated tribunal because the relevant party did not comment on the resignation of the arbitrator and his replacement, whereas it had been invited to do so by the arbitral institution.18 One cannot but concur with this position that should foster procedural good faith and prevent dilatory tactics.
Domestic and international arbitration (re)defined: the Tapie case
Since last year's edition, the Paris Court of Appeal's decision of 17 February 2015,19 annulling an arbitral award in favour of Bernard Tapie, was upheld by the French Civil Supreme Court on 30 June 2016.20
The facts of the case, which were extensively discussed in the previous edition of this chapter,21 are, in a nutshell, the following: Bernard Tapie and his wife (the Tapies) were the founders of multiple companies (the Tapie Companies), through which they acquired the German company Adidas AG in 1991. The Tapie Companies involved in the acquisition of Adidas subsequently went bankrupt, and their liquidators initiated legal proceedings against Société de Banque Occidentale and Crédit Lyonnais, which resulted in the Paris Court of Appeal's decisions on 30 September 2005 and 28 April 2006,22 appeals of which were partly rejected by the French Civil Supreme Court on 9 October 2006 in plenary session.23 In 2007, the Tapies and the liquidators on one hand and the ‘CDR' on the other - a consortium that was set up to administer Credit Lyonnais' assets in light of its quasi-bankruptcy - signed an agreement to settle their dispute by way of arbitration, with a three-member arbitral tribunal, which found in favour of the Tapies on 7 July 2008. Subsequently, a criminal investigation was initiated against the arbitrators, and brought to light significant evidence of the fraudulent behaviour of the co-arbitrator named by the liquidators and the Tapies. Therefore, the CDR applied for a re-examination (révision) of the award by a court of appeal, which could be admissible under the law applicable to the facts ratione temporis only in cases of domestic arbitration. On 17 February 2015, the Paris Court of Appeal held that the arbitration was of a domestic nature, and thus found grounds for its re-examination. As stated in the previous edition, reactions to the Court of Appeal's reasoning have been varied, with some criticising its lack of consistency with regard to previous case law pertaining to the definition of domestic and international arbitration cases.24
The French Civil Supreme Court did not fully embrace the reasoning of the Paris Court of Appeal in its decision of 17 February 2015, although the latter was finally upheld. Only a portion of the reasoning was approved by the French Civil Supreme Court. First, the French Civil Supreme Court examined the scope of the arbitration agreement concluded in 2007. Said arbitration agreement stipulated that the French Civil Supreme Court's decision of 2006 and the parts of the Paris Court of Appeal's decisions that were not quashed had become binding and irrevocable.25 The French Civil Supreme Court decided that, in light of these decisions, the foreign companies involved in the transaction at hand were acquitted and thus excluded from the scope of the arbitration agreement. Secondly, the French Civil Supreme Court has specified the appropriate timing for examining whether international trade interests are at stake. It stated that ‘the Court of Appeal has rightly placed itself at the time when the arbitration agreement was concluded in order to determine the nature of the arbitration' in order to conclude that the dispute at hand only pertained to economic transactions which took place in France and thus international trade interests were no longer at stake.26 The authors of this chapter note that this seems to be a restrictive interpretation of the international nature of the arbitration, and wonder whether the French Civil Supreme Court has now set a general rule according to which an arbitration is domestic if the foreign element, which may have existed at the outset, no longer exists by the time the parties decide to submit their dispute to arbitration.
Far from simply confirming last year's decision, the French Civil Supreme Court raises more questions than it answers and, still, the divide between domestic and international arbitration remains unclear.
- TGI Paris, 12 July 1989, La Belle Creole S.A. v The Gemtel Partnership.
- French Civil Supreme Court, 1st Civ., 1 February 2005, State of Israel v National Iranian Oil Company, Nos. 01-13742 and 02-15237: the arbitration agreement provided that the appointing authority for the president of the arbitral tribunal would be the President of the ICC Court located in Paris, France.
- French Civil Supreme Court, 1st Civ., 20 February 2007, Naphtachimie v UOP NV, No. 06-14107.
- French Civil Supreme Court, 1st Civ., 23 January 2007, No. 06-12946.
- C Jarrosson, F-X Train, ‘Les limites de l'intervention du juge d'appui dans un arbitrage institutionnel en cours ? Trib gr inst Paris (ord réf)', 16 November 2015, Revue de l'Arbitrage, Comité Français de l'Arbitrage, Vol. 2016, Issue 1, pp. 271-282.
- Paris Court of Appeal, 27 May 2014, No. 12/18165; French Civil Supreme Court, 4 November 2015, No. 14-22630.
- R Dupeyré, ‘La (nouvelle) affaire Vasarely: l'arbitrage en trompe l'œil', Cahiers de l'arbitrage, 1 November 2015, No. 3, p. 481; M Nioche, ‘Le contrôle de la qualification de fraude par la Cour de cassation', Gazette du Palais, 9 February 2016, No. 6, p. 61.
- Paris Court of Appeal, 18 November 2004, Gazette du Palais, No. 295 p. 5; French Civil Supreme Court, Civ. 1st, 4 June 2008, No. 06-15320.
- C Seraglini, J Ortscheidt, Droit de l'arbitrage interne et international, 2013, Montchrestien, p. 893.
- R Dupeyré, ‘La (nouvelle) affaire Vasarely: l'arbitrage en trompe l'œil, Cahiers de l'arbitrage', 1 November 2015, No. 3, p. 481.
- X Nyssen, P Dunham, The European, Middle Eastern and African Arbitration Review 2016, ‘France', Global Arbitration Review.
- French Civil Supreme Court, 1st Civ., 25 June 2014, Groupe Antoine Tabet v Republic of Congo, No. 11-16444; X Nyssen, P Dunham, The European, Middle Eastern and African Arbitration Review 2016, ‘France', Global Arbitration Review.
- Versailles Court of Appeal, 26 November 2015, Groupe Antoine Tabet v Republic of Congo, No. 12/02855.
- Paris Court of Appeal, 15 September 2015, Monte Carlo Aviation v Dassault Aviation, No. 14/04996.
- French Civil Supreme Court, 1st Civ., 16 December 2015, Columbus Acquisition and Columbus Holdings v AGI, No. 14-26279; D Bensaude, ‘Circonstances de nature à faire naitre un doute sur l'imparialité et l'indépendance de l'arbitre', Gazette du Palais, No. 26, p. 27.
- Paris Court of Appeal, 14 October 2014, Columbus Acquisition and Columbus Holdings v AGI, No. 13/13459.
- Article 1466 CCP provides as follows: ‘A party which, knowingly and without a legitimate reason, fails to object to an irregularity before the arbitral tribunal in a timely manner shall be deemed to have waived its right to avail itself of such irregularity.'
- French Civil Supreme Court, 1st Civ., 27 January 2016, Fibre Excellence v Tembec France, No. 15-12363.
- Paris Court of Appeal, 17 February 2015, No. 13/13278.
- French Civil Supreme Court, 1st Civ., 30 June 2016, Nos. 15-13755, 15-13904, 15-14145.
- X Nyssen, P Dunham, The European, Middle Eastern and African Arbitration Review 2016, ‘France', Global Arbitration Review.
- Paris Court of Appeal, 30 September 2005, No. 96/12548; Paris Court of Appeal, 28 April 2006, No. 2006/1360.
- French Civil Supreme Court, Plenary Session, 9 October 2006, MJA and Mr. Courtoux v CDR and Credit Lyonnais, No. 06-14975.
- X Nyssen, P Dunham, The European, Middle Eastern and African Arbitration Review 2016, ‘France', Global Arbitration Review.
- M Boissavy, ‘La volonté des parties et la nature interne ou internationale d'un arbitrage', Gazette du Palais, 4 April 2015, No. 94, p. 17.
- Article 1504 CCP holds that: ‘An arbitration is international when international trade interests are at stake.'
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