Attention practitioners, the debate is now over. In a decision dated 20 March 2024, rendered upon a question by the Paris Court of Appeal, the first civil chamber of the Cour de Cassation specified a fundamental rule for the distribution of powers regarding the challenge under article 1466 of the Code of Civil Procedure (Cass. 1st civil, March 20, 2024, no. 23-70.019).

The rule of article 1466 of the Code of Civil Procedure

Article 1466 sets out an essential rule: if you failed to raise an irregularity before the arbitrator when you were aware of it, you can no longer rely on it before the Court of Appeal to seek to have the award set aside. It is considered that you have given up on it. This is a plea of inadmissibility within the meaning of article 122 of the Code of Civil Procedure: it does not say that the irregularity does not exist, it says that it was raised too late.

The conflict of competences: rehabilitation counsellor or college education

The challenge lay in the interpretation of the texts relating to the competence of the “CME” to rule on this plea of inadmissibility.

First, Article 789, 6° of the Code of Civil Procedure, in its wording resulting from Decree No. 2019-1333 of 11 December 2019, provided for jurisdiction in principle, exclusive of that of the court ruling on the merits, of the pre-trial judge to rule on the grounds of non-admissibility, even if these involved the examination of a substantive question.

Next, article 907 of the Code of Civil Procedure, introduced by the above-mentioned decree, provided that proceedings before the Court of Appeal were heard under the supervision of the CME under the conditions provided for in articles 780 to 807 of the Code of Civil Procedure. In an opinion dated 3 June 2021, the Cour de Cassation took care to specify that the provisions that gave the CME jurisdiction to rule on the grounds of non-admissibility applied to the CME (Cass., review, June 3, 2021, No. 21-70.006).

Articles 1495 and 1527 d of the Code of Civil Procedure specified that proceedings for the annulment of an arbitration award were heard and judged in accordance with the rules applicable to litigation proceedings before French courts.

Therefore, it seemed quite natural that the examination of the plea under Article 1466, in so far as it constituted a plea of inadmissibility, fell within the competence of the CME. However, this is not the answer provided by the Cour de Cassation.

The jurisdiction of the Court of Appeal

At the request of the relevant chamber of the Paris Court of Appeal which deals with annulment proceedings wherein this article is pleaded on a regular basis, the Cour de Cassation delivered its opinion on the treatment of defences under Article 1466.

While confirming that the ground stemming from article 1466 of the Code of Civil Procedure constitutes a plea of inadmissibility, the Cour de Cassation nevertheless distinguishes between inadmissibility relating to the appeal, which falls within the scope of the Court, from those relating to the procedure for appealing itself, which falls under the jurisdiction of the CME.

However, according to the Cour de cassation, challenges under article 1466 do not relate to the regularity of the procedure applicable before the Court of Appeal. As a result, only the Court has jurisdiction to hear submissions on this ground.

In practice, it is therefore in their written arguments on the merits that the parties may raise the inadmissibility of the annulment procedure on the grounds of article 1466 of the Code of Civil Procedure.

Decree No. 2023-1391 of December 29, 2023 simplifying the appeal procedure in civil matters clarified this without saying so. The new article 907 of the Code of Civil Procedure concerning the jurisdiction of the CME no longer refered to articles 780 to 807 relating to "mise en état" or, in essence, pretrial matters matters outside the merits. It is therefore to the provisions of articles 908 et seq. that reference should be made with regard to the jurisdiction of the CME, including in matters of annulment proceedings to set aside awards.