Belokon v Kyrgyzstan - Jonas Habert explores the recent decision from the French Cour de cassation for LexisNexis

Published: 10/4/2022

In 2017, the Paris Court of Appeal set aside an award against Kyrgyzstan at the seat of arbitration on international public policy grounds (ie prohibition of money laundering). Kyrgyzstan argued that the enforcement of the award would contradict international public policy, more specifically on the prohibition of money laundering (Article 1520(5) of the French Code of Civil Procedure).

In the underlying proceedings, the arbitral tribunal had decided that allegations of fraud and money laundering had not been sufficiently established. In reaching its decision, the Court of Appeal considered it could rely on documents and evidence that had not been produced before the arbitral tribunal and, in particular, documents which became available after the arbitral award was rendered.

In a recent decision, the Cour de cassation upheld the decision of the Court of Appeal, holding that, when asked to determine whether the enforcement could hinder the international public policy of prohibition of money laundering, the Court of Appeal had been right not to limit itself to the evidence that was before the arbitral tribunal or to the latter’s findings. This reinforces the previous line of jurisprudence of French courts setting aside awards tainted by corruption, even when such allegations of corruption had been considered and denied by the arbitral tribunal.

In addition, it is to be noted that in its decision, the Cour de cassation uses the broader standard of "characterized breach of international public policy" rather than the more stringent test of "manifest, concrete and effective breach of international public policy" the French lower courts had previously used (including the Paris Court of Appeal in the Belokon case). In a very recent judgement (Groupement Santullo – Paris, 5 April 2022, No 20/03242), the Paris Court of Appeal followed this standard to decide to annul an award on international public policy grounds. With the Court of Appeal’s recent decision, the French jurisprudence now appears more aligned than ever on this question.

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