“The only recourse against an order for enforcement of an arbitral award issued abroad is an appeal, not a third-party opposition”.
By this judgment rendered on September 9, 2020 in favor of the defendant represented by the law firm Haroche Avocats, the Paris Court of Justice recently confirmed the contours of the third-party opposition and in particular its inadmissibility in international arbitration1.
As a reminder, since the authority of res judicata is relative, the judgment has no direct effect on third parties. Thus, the third-party opposition constitutes a specific remedy available to any person who was neither party nor represented in the judgment with an interest to act2.
This procedure has, however, limits that are specified both by the legislative provisions and by case law.
These limits may, according to the case law, relate to the status of the third party likely to bring such an action.
Case law recalls that the guarantor is inadmissible to form third party opposition to the judgment rendered against the principal debtor, since it is supposed to be represented by the latter3. The same applies to the hypothecary creditor, represented by his debtor in the rights and obligations he holds from the latter4.
Third party opposition also finds its limits with respect to the decisions against which the third party intends to exercise this procedure: “any judgment is subject to third party opposition unless law provides otherwise”5.
Thus, what does the law say about third party opposition in international arbitration, and more specifically against a domesticated arbitral award rendered abroad?
The legislator makes a distinction between domestic arbitration where the award is granted in France and international arbitration where the award is granted abroad.
For the first category, the Code of Civil Procedure is noticeably clear: “the arbitral award rendered in France may be subject to third party opposition before the court that would have had jurisdiction in the absence of arbitration”6, but the same is not true of possible remedies against the order of exequatur for awards rendered abroad.
Against the latter, which is an enforceable title on French territory, there is no legal provision expressly prohibiting third party opposition.
Thus, it is appropriate to combine article 1506 of the Code of Civil Procedure, which does not refer to the text of article 1501 providing for third party opposition, and article 1525 of the Code of Civil Procedure, which provides that the only recourse against the exequatur decision of an arbitral award rendered abroad is an appeal.
Until recently, case law had rarely had the opportunity to rule on this point.
It was only on May 28, 2019 that the Paris Court of Appeal took a clear position on this issue, noting that “(…) the only recourse available against the order for enforcement of an award issued abroad is the appeal provided for by article 1525 of the Code of Civil Procedure in the opening cases enumerated by article 1520 of the Code of Civil Procedure which relate to the award itself and not to the order for enforcement.7 »
In its judgment of September 9, 2020, the Paris Court of Justice followed the line of conduct of the Paris Court of Appeal, thereby reinforcing the consistency of this case law and removing any ambiguity as to the possibility of bringing such an action. This decision has not been appealed; it is now final.