French “Tribunal des Conflits” Rules on Jurisdiction to Enforce Arbitral Award Relating to Public Law Contracts
In a decision of 24 April 2017, the French Tribunal des conflits ruled on the issue of whether the French civil courts or the French administrative courts have jurisdiction to enforce arbitral awards relating to public and administrative law.
As a basic rule under French law, civil courts usually have jurisdiction to hear actions on the enforcement of foreign arbitral awards. Consequently, in the case at hand, the well-known low-cost airline Ryanair – which had successfully arbitrated a case against a French public entity called SMAC (Syndicat Mixte des Aéroports de Charente) – sought the enforcement of its arbitral award before French civil courts. This enforcement order was granted by the Tribunal de Grande Instance of Paris in 2012.
Opposing this enforcement order, SMAC appealed the decision of the Tribunal de Grande Instance before the Paris Court of Appeal. In addition, SMAC also filed an action before the French Conseil d’Etat (French Administrative Supreme Court). In both cases, SMAC alleged that civil courts had no jurisdiction to enforce the arbitral award since it concerned a matter relating to public law contracts for which only administrative courts enjoyed jurisdiction.
The dispute ultimately resulted in the Cour de Cassation (France’s Supreme civil court) rendering a decision which directly contradicted the decision of the Conseil d’Etat (its administrative counterpart).
The Tribunal des conflits (i.e. a specialised court competent to solve jurisdictional conflicts arising between administrative and civil courts) was therefore called on to solve the issue.
In its decision of 24 April 2017, the Tribunal des conflits resolved the contradicting views and ruled that, provided that the underlying contract on which the dispute is based, relates to international trade interests and must be performed in France, then an application for enforcement of any arbitral award (even if the opposing party is a public entity) should be brought before the ordinary civil courts. However, in the case where the underlying contract is governed by the mandatory provisions of French administrative law on public procurements or the occupation of public land, then an application to enforce and/or set aside an arbitral award resulting from a dispute under this contract should be brought before French administrative courts.
This decision by the Tribunal des conflits is particularly welcomed since it clarifies a murky area of law. It follows on from a recent ruling be the French Conseil d’Etat in the Fosmax case, in which France’s Supreme Administrative Court ruled on the standard of review to be applied by French administrative courts in actions to set aside international arbitral awards. Both Fosmax and the present case confirm the necessity to pay close attention to a case’s subject matter (i.e. whether the dispute relates to public law contracts) when seeking either the setting aside of an award or its enforcement in France.