In view of article 1142 Code civil;

When the award dated 12 April 1997 rendered by MM. Castagnet, Couilleaux and Biotteau, who had been appointed to arbitrate a dispute between M. Delaval and MM. Louis and Benoît Juliet, was vacated by the court of appeal because their contract of appointment had already expired, MM. Juliet sued them for damages in the tribunal de grande instance;

In dismissing the claim the tribunal noted that while the general law applies to suits against arbitrators in respect of their task, the special, essentially judicial, nature of their role is such that they are not liable for every breach of contract in the absence of personal fault such as lack of application, and in particular not for mere failure to act within the time frame agreed by the parties, who are in any case bound actively to help take the matter forward;

But since it was the duty of the arbitrators, who are under a strict obligation to produce an award, to seek an extension of time from the court in the absence of agreement or request by the parties, and the vacation of their award was due to their failure to do so, the tribunal’s decision that they were not liable was made in violation of the text cited above.

For these reasons quashes and annuls …

Subsequent Developments

As at the 1st August 2007, there has been no judgment by the Cour de cassation to confirm or contradict this judgment.

Contrary to American doctrine, the Cour de cassation does not accept the principle of total immunity of the arbitrator. The arbitrator is subject to two different regimes, one characterising his function as a judge (immunity) and the other (regime of the droit commun) that of a party to an arbitration contract. It is in respect of this role of the arbitrator that the Cour de cassation has just made a determination and recognised civil responsibility on the part of an arbitrator for breach of a strict duty.

The arbitrator has a general obligation of diligence in the exercise of his commission, and this obligation can only be a duty of care (obligation de moyens), but it implies secondary obligations, one of which is a strict duty to deliver the arbitration award during the initial period.

But the preceding case law seems to indicate that the arbitrator’s exercise of his commission ought not to be unduly disturbed by the fear that liability on his part will arise too easily.

Certain French legal writers have regretted that no mention is made of the role played by the parties who sometimes dissociate themselves from the procedure, or tacitly want to suspend it.