Two Wins at the French Supreme Court

June 2023 - The French Court of Cassation – France’s highest level of appeal – upheld an investment award for HHR’s dual national client and, in a different case, did the same for a Saudi client of the firm.

On May 17, the Court of Cassation confirmed that the investment made by an HHR client – a French and Senegalese national and businessman – is protected by the France-Senegal bilateral investment treaty (BIT). In doing so, the court upheld a decision by the Paris Court of Appeal, which ruled against Senegal’s attempt to annul a €256 million arbitration award granted to HHR’s client by an arbitral tribunal appointed in accordance with the United Nations Commission on International Trade Law (UNCITRAL) arbitration rules.
 
The case began when Senegal sentenced HHR’s client to five years in prison for illicit enrichment and fined him 138 billion CFA francs. Senegal subsequently confiscated and sold a significant portion of his assets.

In October 2019, an UNCITRAL tribunal ruled that HHR’s client had been a victim of expropriation and denial of justice, ordering Senegal to pay more than it had initially fined the businessman.

The Paris Court of Appeal and France’s Court of Cassation upheld UNCITRAL’s €256 million award on the premise that the France-Senegal BIT doesn’t expressly exclude individuals with dual citizenship. The court also rejected Senegal’s argument that the enforcement of the award would breach international public policy in the absence of evidence in support of Senegal’s allegations of corruption.

In a separate case, on June 7 the Court of Cassation confirmed an International Chamber of Commerce (ICC) award for a Saudi client against two Algerian public entities.
 
The ICC decided in favor of HHR’s client in April 2013. The case continued for over ten years through court submissions, procedural twists and turns, two rulings by the Paris Court of Appeal, and a decision that saw the Court of Cassation overturn the first appeal on a technicality, before finally confirming the ICC award.
 
The case also set an arbitration precedent for the ICC. Possible irregularities among the members of an arbitral tribunal – such as a lack of independence or impartiality – must now be raised with that tribunal, even if the arbitral institution (in this case, the ICC) has already ruled on the matter in accordance with its own rules. If this is not done, the party in question won’t be able to invoke those irregularities in annulment proceedings after the arbitration, except if they constitute a violation of French international public policy.
 
Sébastien Bonnard led the teams representing both clients, both at HHR and with his previous firm. The teams included Sabrina Touchard and Eleni Jacovides.