## Facts

- A Dubai company (Dutco) and two German companies (BKMI and Siemens) entered a consortium agreement to build a cement plant in Oman.
- The agreement contained an ICC arbitration clause providing disputes would be decided under ICC rules by three arbitrators appointed under those rules.
- Dutco filed a single ICC arbitration against both BKMI and Siemens in one proceeding.
- Under ICC practice, Dutco nominated one arbitrator; BKMI and Siemens were required to jointly nominate a single co-arbitrator, with institutional appointment threatened if they failed to agree.
- BKMI and Siemens made a joint nomination under protest, asserting the joint-appointment requirement denied them equal participation in constituting the tribunal.
- The tribunal issued an interim award finding it was properly constituted and that the multiparty arbitration could proceed.
- A final award was rendered against BKMI and Siemens, who sought annulment in French courts, arguing the tribunal’s constitution violated equality in arbitrator appointment and French international public policy.
- The Paris Court of Appeal rejected annulment, reasoning that the parties’ three-arbitrator clause and the contract’s multiparty nature implied acceptance of necessary procedural adjustments.

## Issues

1. Whether, in a France-seated multiparty ICC arbitration, requiring co-respondents to share a single co-arbitrator while the claimant appoints its own arbitrator violates French international public policy.
2. Whether any waiver of equality in arbitrator appointment can be made in advance in the arbitration clause and incorporated rules, or only after the dispute has arisen.

## Decision

- The Cour de cassation quashed the judgment that had upheld the award and remitted the matter to another court of appeal.
- The court held that equality of the parties in appointing arbitrators is a matter of public policy.
- The tribunal’s constitution violated equality because Dutco appointed an arbitrator alone while BKMI and Siemens were compelled to make a joint appointment.
- The parties’ agreement to a three-member ICC arbitration did not amount to a valid advance waiver of equality; waiver is possible only after the dispute arises.

## Legal Principles

- Equality of the parties in the designation of arbitrators is mandatory under French international public policy.
- Any waiver of that equality is valid only if made after the dispute has arisen.
- A multiparty contract and a three-arbitrator clause do not justify a constitution method that grants one side a unilateral appointment while compelling the opposing side to share a single appointment absent post-dispute consent.

## Conclusion

The decision invalidated an arbitral appointment mechanism that forced co-respondents to share one arbitrator while the claimant appointed its own, holding that equal participation in constituting the tribunal is public policy in France and cannot be waived in advance through contract or incorporated institutional rules.


Siemens AG & BKMI Industrieanlagen GmbH v. Dutco Constr. Co., Bull. civ. I, No. 2 (Cass. 1e civ. Jan. 7, 1992)