International Arbitration Newsletter
Second Semester 2025
Paris Court of Appeal, 30 September 2025, Astaris, no. 23/11499
THE AUTHOR:
Eglantine Canale Jamet, Associate at Sygna Partners
As a leading Paris-based firm in international law and dispute resolution, Sygna Partners brings its legal insight to Daily Jus. Through this collaboration, we feature select articles from Sygna’s biannual International Arbitration Newsletter, offering sharp analysis of key French court decisions and their broader relevance to the global arbitration community.
Subject Matter
Articles 1520(1) and (5) FCCP – Compétence-compétenceprinciple
The compétence-compétence principle is only chronological: the tribunal has priority to decide on its own jurisdiction, but Article 1520(1) FCCP remains fully available as an annulment ground whether the tribunal upheld or declined jurisdiction, and the judge may not merely substitute its own reasoning on jurisdiction.
Procedural irregularities only justify annulment if they have actually impaired equality of arms or the right to be heard, so that both waiver and competence-competence serve to filter out purely formal challenges and reserve annulment for genuine due process and public policy breaches.
Summary
Three Italian companies entered into six contracts with the Bolivarian Republic of Venezuela and the Instituto Autónomo de Ferrocarriles del Estado for the design and construction of sections of Venezuela’s railway network. Difficulties arose during performance, and the companies commenced ICC arbitration against Venezuela and IFE (Consorzio di Imprese Italiane v. Venezuela and Instituto Autónomo de Ferrocarriles).
Before the arbitral tribunal, the claimants sought to anchor jurisdiction in Article XV of the 2001 Italy-Venezuela Framework Agreement for Economic and Industrial Cooperation, Infrastructure and Development, arguing that this provision contained a unilateral offer to arbitrate capable of being accepted by an investor. By an award dated 20 March 2023, the tribunal declined jurisdiction over the dispute under that instrument.
The claimants then filed, on 27 June 2023, an application before the Paris Court of Appeal to set aside the award under Article 1520(1) FCCP, arguing that the arbitral Tribunal erred in rejecting its jurisdiction. However, at this annulment stage, rather than arguing jurisdiction based on an “offer to arbitrate” contained in the Framework Agreement, as they did in vain before the arbitral Tribunal, they argued that Venezuela’s conduct and involvement in the negotiation and performance of the implementing contracts established consent to arbitration in the specific circumstances of the case. This constituted a different claimed basis for arbitral jurisdiction than the one argued before the arbitrators, and, as characterised by the respondents, a shift from an investment-based jurisdictional basis towards a contractual and commercial one.
Venezuela and IFE objected that this argument was inadmissible because the claimants had fundamentally altered the basis on which they sought to establish jurisdiction, contrary to Article 1466 FCCP, and in a manner that also offended procedural loyalty, estoppel, and the logic of compétence-compétence, by effectively turning the annulment judge into a court ruling for the first time on a different alleged jurisdictional “offer” than that debated before the tribunal.
In its decision of 30 September 2025, the Paris Court of Appeal recalled that compétence-compétence gives the arbitral tribunal priority in time to rule on jurisdiction, but does not eliminate annulment review under Article 1520(1), whether the tribunal upheld or declined jurisdiction.
Turning to estoppel, the Court emphasised that it requires prejudice; since prejudice was not shown and that the claimants’ overall objective, i.e., establishing jurisdiction, remained the same, estoppel was not the operative basis for exclusion.
But the Court dismissed the set-aside application on the basis of article 1466 FCCP. It held that by invoking, for the first time before the annulment judge, a different foundation for consent to arbitrate than the one debated before the arbitrators – a “changement radical d’argumentation” – the claimants were deemed to have waived that line of argument. The Court therefore declared the new jurisdictional argument inadmissible, rejected the application to set aside, and upheld enforcement of the award.
The Court reasoned that Article 1466 FCCP, read together with Article 1506, establishes a presumption of waiver: a party that knowingly fails, without legitimate reason, to raise not only an “irregularity”, as explicitly provided for in Article 1466 FCCP, but also a claim, or a plea in law, “in due time” before the arbitral tribunal is deemed to have waived it later. The Court treated that duty as grounded in a broader requirement of procedural fairness and consistency, but held that such presumed waiver cannot defeat a party’s right to request annulment based on a breach of international public policy under Article 1520(5).
Analysis
Drawing the Line Between New Arguments and New Claims
In this decision, the Paris Court of Appeal draws the boundary in the post-Schooner landscape. After the Cour de cassation’s Schooner ruling (First civil chamber, 2 December 2020, no. 19-15.396), the established reading was that once jurisdiction has been debated before the tribunal, the parties remain free, at the annulment stage, to develop new arguments and new evidence on that jurisdictional question. In Astaris, the Court appears to reintroduce a constraint by characterising the applicants’ new theory as more than a “new argument”: it was, in the Court’s words, a “radical shift” because it relied on a different source of consent, a different “offer to arbitrate” than the one argued before the arbitrators.
While Schooner protects the ability to refine or supplement a jurisdictional debate already framed before the tribunal, it does not provide for the ability to replace the very foundation of jurisdiction after the award, especially when the replacement would transform what was argued as a treaty-based or unilateral offer into the State’s conduct in the negotiation of the contracts, and, as respondents framed it, a shift towards a contractual basis.
Rather than treating it as a narrow mechanism tied to specific procedural incidents, Article 1466 FCCP is deployed as a general tool to enforce procedural loyalty and coherence: if a party withholds plea in law without legitimate reason, it is deemed to have waived the right to use it later. In practice, the annulment application cannot become an opportunity to run a brand-new consent to arbitration narrative that was never tested in the arbitration, as this would undermine the very procedural economy and fairness that Article 1466 is designed to protect.
Limits of de novo review under Article 1520(1)
The applicants’ strategy also raised a structural concern regarding the nature of annulment review in cases where the applicant pleads a new jurisdictional basis that the tribunal never examined.
The Court reiterates that compétence-compétence grants the tribunal chronological priority, not immunity from later judicial review, and that Article 1520(1) remains available whether the tribunal accepted or declined jurisdiction. But the Court effectively insists on a boundary condition for that review: the annulment judge does not act as a first-instance jurisdictional forum for a different case.
On this view, allowing a party to anchor jurisdiction on a fresh “offer” at the annulment stage would distort the function of annulment review by bypassing the tribunal’s first look at the relevant consent theory, and turning set-aside proceedings into a substitute arbitration on jurisdiction. Article 1466 becomes the lever used to prevent that distortion.
Estoppel and the Requirement of Prejudice in French Annulment Review
The Court rejects the argument of estoppel, not because the applicants’ positions were not inconsistent, but because French estoppel in this context is not automatic: it requires prejudice, understood as a concrete detriment caused by the contradictory conduct. The Court does not conflate waiver with estoppel and treats them as distinct controls: while estoppel polices inconsistency that misleads and harms, Article 1466 polices untimeliness and procedural withholding even absent proven prejudice.
One reading is that Astaris is compatible with the Schooner logic: new arguments remain admissible, but only within the same jurisdictional foundation. The opposing reading is that the Court of Appeal is rebuilding a form of the restriction that Schooner was understood to relax, especially because the ultimate jurisdictional question – i.e., existence of consent or not – remains the same, and because annulment review is typically described as a full review of jurisdiction. On that view, Astaris is less a refinement than a reassertion of strictness through characterisation.
The Court notes that waiver does not bar arguments grounded in international public policy, which cannot depend on the parties’ procedural conduct. This reminder matters even though it does not work on these facts: it signals that the Court is not turning Article 1466 into an all-purpose filter. Instead, it is reinforcing a hierarchy: procedural discipline yields to truly non-derogable constraints.
ABOUT THE AUTHOR
Eglantine Canale Jamet joined Sygna Partners‘ International Litigation and Arbitration Department in 2022 as an Associate. She holds a Master’s in Public International Law (Paris Nanterre) and an Advanced LL.M. in International Criminal Law (Leiden). She has gained experience with international courts (ICC and ICJ) as well as in the Legal Affairs Division of France’s Ministry of Foreign Affairs. Her practice focuses on immunities and international disputes, with a particular interest in evidence, open-source investigations, and procedural issues.
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