## Facts

- The Tunisian Ministry of Public Works awarded two Tunisian public-works road construction contracts to a group including Société Bec Frères and Grands Travaux d’Afrique.
- Each contract contained an arbitration clause calling for a tribunal of two arbitrators, one appointed by each side, and referenced Tunisian and French public-works jurisprudence.
- A dispute arose, and the Ministry terminated the contracts; the group commenced arbitration seated in Tunisia.
- The group appointed its arbitrator; the Ministry did not, and Tunisian courts appointed the second arbitrator.
- The two arbitrators appointed a third arbitrator, citing a mandatory Tunisian procedural rule requiring an odd number of arbitrators.
- A three-member tribunal rendered an award in favor of the group.
- The group sought recognition and enforcement in France; the Ministry opposed enforcement, alleging improper tribunal composition.

## Issues

1. Whether enforcement could be refused because the tribunal had three arbitrators even though the arbitration clause specified two, where the third arbitrator was added to comply with mandatory law at the seat requiring an odd number of arbitrators.
2. Whether a tribunal’s corrective step to cure a clause inconsistent with the lex arbitri constitutes a composition defect within the enforcement refusal ground for nonconformity with the parties’ agreement.

## Decision

- The Paris Court of Appeal upheld recognition and enforcement of the award.
- The court rejected the Ministry’s objection that the tribunal was improperly constituted by adding a third arbitrator.
- The court treated the addition of the third arbitrator as a permissible measure to align the arbitral mechanism with mandatory seat law and to preserve the parties’ agreement to arbitrate.
- The court found no basis to refuse enforcement absent a showing that the procedure undermined party equality or fairness.

## Legal Principles

- When an arbitration clause conflicts with mandatory requirements of the law of the seat on tribunal composition, the arbitral process may correct the clause’s mechanics to achieve compliance and maintain effectiveness of the agreement to arbitrate.
- For enforcement purposes, a deviation from the literal tribunal-composition term may not justify refusal where the deviation is required (or justified) by mandatory seat law and does not impair fundamental procedural fairness.
- Enforcement-stage review of tribunal composition focuses on materially defective constitution and procedural guarantees, not purely formal inconsistencies that are cured in good faith and cause no demonstrated prejudice.

## Conclusion

The court enforced the foreign award, holding that appointing a third arbitrator to satisfy mandatory seat-law requirements did not, by itself, render the tribunal improperly constituted or justify refusal of enforcement.


Ministère tunisien de l’Équipement v. Société Bec Frères (Paris Ct. App. Feb. 24, 1994), XXII Y.B. Com. Arb. 682 (1997)