In the aftermath of the turmoil West Tankers has created in the arbitration community, the Cour de cassation has confirmed France’s reputation as being an arbitration-friendly jurisdiction by holding that anti-suit injunctions are not contrary to international public policy.
A French company (In Zone Brands Europe) had entered into an exclusive distribution agreement of beverages with an American company (In Zone Brand International). The contract granted jurisdiction to the courts of Georgia (USA). After the termination of the agreement by the American company, the French distributor and Mr X., President of In Zone Brands Europe sued it for damages before the Tribunal de commerce of Nanterre (France), whose jurisdiction was challenged by the American party. In parallel, In Zone Brand International seized the Superior Court of Cobb County, Georgia (USA). In a judgment dated 3 March 2006, the American judge issued an anti-suit injunction ordering the French party to discontinue the proceedings before the French courts and held that the French company owed monies to the American one. In Zone Brand International then sought recognition and enforcement (“exequatur”) of the American judgment (i.e. the anti-suit injunction) in France. On 17 April 2007, the Cour d’appel of Versailles upheld the decision of the first instance judges and recognised the anti-suit injunction granted by the Superior Court of Cobb County. On 14 October 2009, the Cour de cassation confirmed this ruling. (1)
The French Supreme Court approved the anti-suit injunction on the ground that “n’est pas contraire à l’ordre public international l’”anti suit injunction” dont, hors champ d’application de conventions ou du droit communautaire, l’objet consiste seulement, comme en l’espèce, à sanctionner la violation d’une obligation contractualle préexistante.” (2)
The judges’ reasoning consisted in verifying whether the three conditions required for enforcement of foreign decisions (as set forth by the last French Supreme Court case rendered in that respect) were fulfilled: (3) (i) the absence of fraudulent avoidance of the normally applicable law, (ii) the evidence of a sufficient link between the dispute and the foreign court having rendered the judgment subject to recognition and enforcement proceedings, and (iii) the enforcement of the judgement is not contrary to international public policy. Concerning the first condition, the Court has pointed out that “no fraud could arise out from seizing a court which has been expressly agreed to have jurisdiction“.
via Kluwer Arbitration Blog » Blog Archive » France: A New Haven For Anti-suit Injunctions?.
