Historical agreement and the judicial question
On 6 November 2024 the French Court of Cassation decided appeal 23-17.615; ECLI:FR:CCASS:2024:C100591. An 1878 agreement concerning rights over Borneo territories provided for disputes to be decided by the British Consul-General. Following cessation of payments in 2013, the Sulu heirs sought another arbitrator because that office no longer existed.
An arbitrator appointed by a Spanish court issued a partial jurisdiction award in Madrid on 25 May 2020. French proceedings concerned exequatur of that particular partial award. The Paris Court of Appeal refused it on 6 June 2023; cassation examined that disposition. The reviewed object was the partial jurisdiction award; the judgment did not determine every other claim or proceeding between the participants.
Interpretation and the limit of useful effect
Paragraphs 7–9 recognise that the existence and effectiveness of an international arbitration agreement depend on common intention, interpreted through good faith and useful effect. Only that common intention confers jurisdiction on an arbitrator. A presumption favouring a workable mechanism does not permit the agreed mechanism to be disregarded.
Paragraph 10 examines translations and the historical context. The common intention found below made the particular consular office inseparable from consent to third-party adjudication. Paragraph 11 confirms that this choice was determinant; disappearance of the office therefore removed the corresponding agreed arbitration mechanism.
Precise disposition
The principal and related appeals were dismissed. Refusal of exequatur for the partial Madrid award remained intact. The French court did not appoint a replacement or treat foreign judicial appointment as itself supplying the necessary consent.
The result does not mean that death of any named arbitrator or change of every appointing authority necessarily terminates a clause. The established determinant role of the particular choice mattered. Replacement and judicial assistance depend on the relevant law and the agreement’s actual content.
Drafting significance
Where a person, office or appointing authority is specified, address replacement and the applicable fallback separately. If a particular person is essential to consent, say so clearly. Comparing Antrix/Devas shows the limits of curative interpretation: a policy of preserving arbitration cannot manufacture essential consent. See the agreement drafting guide.
General information. The applicable legal framework depends on the particular dispute, seat and enforcement country.