International awards - Retrait litigieux (repurchase of a disputed debt) - Principle of adversarial proceedings and equality of arms - Dismissal
At the end of these two decisions, one ruling on a proceeding for setting aside, the other on an appeal against an exequatur order, the ICCP-CA rejects these claims, considering that if "the exercise of the disputed right of retrait litigieux is likely to indirectly affect the enforcement of the award in that it directly affects the amount of the claim fixed by the award" (§43), the exercise of the disputed right of retrait litigieux before the judge in charge of the control ? "does not have the effect of modifying and extending the powers of this judge beyond the cases provided for by the law" (§45). The Court thus held that the exercise of a contentious retrait is not capable of impeding the enforcement of an award or of leading to the annulment of an award, "without prejudice to the debate that might arise in connection with the enforcement of that award before the competent court" (§49).
The Court also rejected the argument that the principle of adversarial proceedings had not been respected, considering that a party who has accepted an arbitration cannot be totally disinterested in it and must act with celerity and loyalty, qualities which also imply being proactively concerned with the progress of the arbitration and, if necessary, alerting the ICC Secretariat if it fails to receive letters setting out the deadlines for the proper conduct of the arbitration, which it could not have been unaware would be sent to it regularly (§65 or §66).
It also rejected the plea of failure to respect the equality of arms put forward by a party who invoked a civil war situation in its country, after noting that the appellant had deliberately chosen not to follow the arbitration proceedings and that he had never invoked this situation before the arbitral tribunal, without being able to reasonably maintain that it was materially impossible for him to inform the tribunal of this fact, and that he could at the very least ask for a suspension of the proceedings (§87 or §88).