## Facts

- SNF SAS (France) and Cytec Industries BV (Netherlands) concluded a 1991 supply contract for acrylamide monomer.
- In 1993, the parties entered into a new agreement containing an arbitration clause providing for arbitration in Brussels, Belgium.
- After SNF terminated the 1993 contract, Cytec commenced arbitration in Brussels.
- In a first award dated 5 November 2002, the arbitral tribunal held that the 1993 contract was void from the outset under Article 81 EC (now Article 101 TFEU) and that both parties were co-responsible.
- In a second award dated 28 July 2004, the tribunal ordered SNF to compensate Cytec and rejected SNF’s claims.
- Exequatur of both awards was granted in France by orders dated 15 September 2004.
- SNF appealed those orders to the Paris Court of Appeal and also requested a stay of the exequatur proceedings, relying on a criminal complaint it had filed (plainte avec constitution de partie civile) before an investigating judge in Saint-Étienne.
- By judgment of 23 March 2006, the Paris Court of Appeal dismissed SNF’s appeal, refused to stay the proceedings, and maintained exequatur.
- SNF filed a pourvoi en cassation challenging (i) the refusal to stay and (ii) the recognition/enforcement of the awards on the basis of international public policy, in particular EU competition law.

## Issues

1. Whether the exequatur proceedings had to be stayed under Article 4 of the Code of Criminal Procedure (as then in force) because of pending criminal proceedings initiated by SNF.
2. What intensity of review French courts apply when assessing whether recognition/enforcement of an international arbitral award violates international public policy under Article 1502, 5° of the (then applicable) Code of Civil Procedure.
3. Whether the tribunal’s application of EU competition law (notably Article 81 EC) led to an award whose recognition/enforcement in France would be contrary to international public policy.

## Decision

- The Cour de cassation rejected SNF’s pourvoi and upheld the Paris Court of Appeal’s judgment of 23 March 2006.
- The Court approved the refusal to stay: Article 4 CPP’s stay mechanism presupposes a setting where civil and criminal fault are aligned, and the pending criminal complaint did not require suspending exequatur review given the limited scope of judicial control over awards.
- The Court approved the standard that review of compatibility with international public policy is confined to the “flagrant, effective and concrete” character of the alleged violation.
- Applying that standard, the Court held that SNF did not establish a “flagrant, effective and concrete” breach of international public policy: the tribunal had applied EU competition law, and SNF’s objections amounted to contesting the tribunal’s assessment, which is not a permitted merits review at the exequatur stage.
- Exequatur of the two awards in France therefore remained in place.

## Legal Principles

- Under Article 1502, 5° CPC (former regime), review of an international arbitral award for international public policy is limited: enforcement is refused only where the alleged breach is “flagrant, effective and concrete.”
- The judge may not revisit the tribunal’s fact-finding or correct an asserted legal error as such; exequatur control is not an appeal on the merits.
- EU competition law can be invoked as part of international public policy in French control of recognition/enforcement, but it does not widen the judge’s powers into full review of how the tribunal applied those rules.
- A request to stay civil proceedings because of pending criminal proceedings (Article 4 CPP, old version) requires that the criminal case be capable of influencing the civil decision in a setting of matching civil and criminal fault; it is not a tool to reopen arbitral determinations barred from merits review.

## Conclusion

Cass. 1re civ., 4 June 2008 (SNF v. Cytec) upheld exequatur in France of two Brussels-seated awards and confirmed that French public-policy control of international awards—while including EU competition law—is confined to identifying a “flagrant, effective and concrete” violation, with no re-litigation of the tribunal’s assessment; the Court also affirmed that pending criminal proceedings did not justify staying exequatur in these circumstances.


Cour de cassation [Cass.] [supreme court for judicial matters] 1re civ., 4 juin 2008, n° 06-15.320, Bull. civ. I, n° 168 (Fr.)