French Supreme Court requires parties to raise irregularities not just before the arbitral institution to avoid waiver in set aside proceedings, but also before the arbitral tribunal (CNAN Group SPA and Bulk Carrier SPA v CTI Group Inc)

Article summary

Arbitration analysis: The French Supreme Court (the Cour de cassation) held, in the context of set aside proceedings, that a party’s unsuccessful challenge before an arbitral institution of an arbitrator for an alleged lack of independence or impartiality is not a legitimate reason for failing to raise, before the arbitral tribunal, the tribunal’s irregular constitution. The court referred to Article 1466 of the French Code of Civil Procedure (FCCP) which provides that ‘[a] party which, knowingly and without a legitimate reason, fails to object to an irregularity before the arbitral tribunal in a timely manner shall be deemed to have waived its right to avail itself of such irregularity’. It held, on this basis, that a party’s failure to invoke the irregular constitution of the tribunal before the arbitral tribunal constitutes a waiver by...