Document Production in French Set-aside Proceedings: limited powers despite an increasingly extensive scrutiny of the set aside judge

Brief reminder on the grounds for set-aside appeal under French arbitration law

Under French law, set-aside proceedings against an international arbitration award can be brought before the competent Court of Appeal (namely, for most of the time, the Paris Court of Appeals).

Article 1520 of the French Code of Civil Procedure provides five limited grounds of annulment:

1. lack of jurisdiction;
2. the constitution of the tribunal is irregular;
3. the tribunal failed to comply with its mission;
4. breach of due process;
5. the recognition or enforcement of the award breaches international public policy.

The international public policy ground has evolved significantly in the recent years, particularly after the French Supreme Court (“Cour de cassation”) overturned its previous case law as to the level of scrutiny during set-aside proceedings. Before 2022, the Cour de cassation only performed a narrow control on the ground of “flagrant, effective and concrete” violation of the international public policy. This approach was replaced by a more extensive control following two decisions (Belokon, March 23, 2022, No. 17-17.981; Sorelec, September 7, 2022, No. 20-22.118) that removed the flagrancy requirement.

Since this overturn, one could fear that the French set-aside judge be tempted to extend its scrutiny into the merits of the award through the international public policy ground.  

Subsequent case law nevertheless demonstrated opposite: the review of international public policy remains limited to the enforcement of the award as opposed to the merits of the award itself. 

A recent decision dated September 18, 2024 (No. 21-20.140), rendered by the Cour de cassation, reaffirmed this point when discussing the arbitral tribunal’s denial of a document production request. 

Practical implications for parties to arbitration in the light of the decision rendered by the Cour de cassation on September 18, 2024

The dispute arose from an electricity supply contract between Green Network (Italy) and Alpiq (Switzerland) - ICC rules and seat in Paris. The tribunal ruled in favour of Alpiq. Green Network therefore brought set-aside proceedings before the Paris Court of Appeal, which rejected the appeal.

Green Network filed a further appeal before the Cour de cassation. 

One of the set-aside ground for appeal before the Supreme Court was based around the alleged fact that the arbitral tribunal refused Green Network’s request for production of documents without justification. According to the Green Network, this refusal breached its right to a fair defence and, as a consequence, violated French international public policy.

The Cour de cassation upheld the Court of Appeal decision: the Supreme Court recalled the principles according to which it is not for State courts to review award on its merits, nor to appreciate the arbitral tribunal’s (discretionary) assessment of the relevance (or lack thereof) of a document when assessing a party’s document production request. 

The Supreme Court found that the arbitral tribunal provided sufficient legal ground to reject the document production request. The Supreme Court added that although the reasons were not set out in the Procedural order rejecting the document request, such reason was nevertheless expressly addressed in the final award.

The Cour de cassation added that the Tribunal did not surprise the parties. It had issued a previous Procedural order which already rejected the document production request, leaving the parties sufficient time to challenge its procedural decision. The second Procedural order merely stated the tribunal’s refusal to overturn its previous order.

According to the French Court, there was therefore no breach of the right to a fair defence or of French international public policy.

Conclusion

In a nutshell, this decision rendered by the Cour de Cassation on September 18, 2024, highlights that:

• The rejection by the arbitral tribunal of a document production request is not sufficient to set the award aside, provided that such decision was rendered with due process.
• Despite a higher standard review on the ground of international public policy (Article 1520-5 of the French Code of Civil Procedure), French courts have no intention to cross the red line by reviewing the merits of an international arbitration award.
  
  It is worth recalling here the so-called French “civil law” system which emphasises the obligation for the parties to provide themselves sufficient evidence, which, in practice, considerably limits the scope and coercive nature of cross document production requests. This French domestic approach has nevertheless no bearing in the international arbitration world.
  
  
• This Supreme Court decision should further encourage parties to make clear and precise document production requests versus overly large/burdensome requests, which tend to be rejected by arbitral tribunals and which won’t be reviewed during the French set-aside proceedings. It should also be recalled that any irregularity of the arbitral proceedings must be brought up before the arbitrators, failing which such irregularity cannot be examined by the French set-aside judge (article 1466 of the French Code of Civil Procedure).