International Arbitration Newsletter
Second Semester 2025
Paris Court of Appeal, 21 October 2025, Keppel, no. 24/04967
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
Article 1507 FCCP – Formality of the arbitration agreement
The existence and effectiveness of the arbitration agreement are assessed according to the common intention of the parties, subject to mandatory rules and international public policy, taking into account, in particular, the essential nature of arbitration in the submission of the successful bidder, repeated discussions on the substitution of the clause, the development of a comprehensive dispute resolution mechanism, written confirmation of an agreement on the documents discussed, and the absence of any dispute at the time of the award of the contract and at the time of the dispute.
Summary
Keppel Seghers Engineering Singapore Pte Ltd (“Keppel”), a subsidiary of the Keppel Group, bid in 2006-2007 for a major Qatari public works project awarded by the Qatar Public Works Authority (“PWA”): the design, construction, and operation/maintenance of a wastewater treatment plant. The tender package included general conditions referring disputes to the Qatari courts. During the tender clarifications and negotiations, Keppel repeatedly insisted that arbitration was a condition of its participation.
In late August and September 2007, the parties exchanged multiple documents and letters dealing specifically with dispute resolution. PWA’s letters of 13 and 16 September 2007 acknowledged Keppel’s position that arbitration should take place outside Qatar and noted that the “mediation” and “arbitration” topic remained the last “unresolved” item to be dealt with separately.
A final in-person meeting took place on 26 September 2007. Two key negotiation documents were discussed, describing a bespoke multi-step mechanism culminating in ICC arbitration seated in Paris. Keppel then sent letters the same day recording that agreement had been reached, including on the seat, and PWA issued the Letter of Award on 27 September 2007 without reserving its position on Keppel’s letters, conduct the Court treated as significant given the parties’ prior practice of not leaving issues open at award stage.
Separately, an internal PWA letter dated 19 September 2007 recorded that PWA’s governance had approved awarding the contract and accepting ICC arbitration in Paris. Although initially internal, this document was later incorporated into the final contract bundle. The Contract Agreement was signed on 9 December 2007. It provided that the contract comprised not only the agreement and the conditions of contract, but also all documents compiled in nine volumes, deemed “an integral part” of the contract.
Disputes later arose, and two ICC requests for arbitration led to an ICC award dated 6 December 2023 in a Paris-seated arbitration, by which the tribunal declined jurisdiction, considering that no valid arbitration agreement existed. Keppel filed an action to set aside the award under Article 1520(1) FCCP, arguing that the tribunal had wrongly declined jurisdiction.
On 21 October 2025, the Paris Court of Appeal, 24/04967, set aside the award. It recalled that, for an Article 1520(1) challenge, the annulment judge must review jurisdiction by examining all relevant factual and legal elements, without revisiting the merits. It further applied the French “règle matérielle” of international arbitration: no form requirement (Article 1507 FCCP), autonomy of the arbitration agreement, and assessment of its existence and effectiveness according to the parties’ common intention, interpreted in good faith and in light of effet utile.
The Court found that a common intention to arbitrate had been “fully and perfectly” expressed before the award of the tender, later confirmed by incorporation into the nine-volume contract and by conduct in performance (including express reliance on the “Resolution Flow Chart” in 2021, participation in mediation, and no immediate jurisdictional objection when ICC proceedings commenced).
The Paris Court of Appeal understood the exchanges between the Parties as showing that the principle of moving away from the original court-jurisdiction mechanism was not being rejected, and that the discussion had narrowed to the modalities, notably the seat outside Qatar. The Court further held that the inclusion within the nine volumes of the “Arbitration approval letter” and the 26 September 2007 letters with their annexed dispute-resolution documents reflected the parties’ intention to give them contractual value.
It concluded the tribunal had wrongly declined jurisdiction, annulled the 6 December 2023 award, and ordered costs and fees against PWA.
Analysis
Substance Over Form: Evidence of Consent
Keppel is a clear illustration of the French practice of court’s preference for substantive consent over formal drafting. The Court framed its method in the familiar Dalico line: no formal requirement (Article 1507), autonomy from the main contract, and a search for common intention guided by good faith and effet utile. As such, the Court searched more than the absence of an arbitration clause in the executed contractual text and treated the contract as a “contractual matrix”, including the nine volumes, the clarifications, the award letter, and the negotiation instruments. It therefore asked whether, within that matrix, the parties had in substance chosen arbitration.
The Court stacks several categories of elements: it considers the pre-award correspondence, and PWA’s letters of 13 and 16 September 2007 were read as acknowledging the arbitration/mediation mechanism as the remaining item to settle, not as rejecting arbitration in principle. Moreover, Keppel’s letters “taking note” of agreement, combined with PWA’s issuance of the Letter of Award the next day without reservation, counted as strong evidence of assent, especially given the parties’ negotiation practice. By treating all documents in volumes as integral, the contract turned what might otherwise be “mere negotiation paperwork” into relevant contractual material. Furthermore, the Court relied on the engineer’s 2014 letter referencing the dispute resolution process, PWA’s 2021 insistence on strict application of the “Resolution Flow Chart”, acceptance of mediation, and absence of an immediate jurisdictional challenge in ICC proceedings.
Two practical lessons follow. First, under French law, consent can crystallise across documents and behaviour, and not necessarily in a single, cleanly drafted clause. Second, a party seeking to resist arbitration will struggle if it has negotiated it as a condition, accepted contractual incorporation, and later behaved as if the mechanism existed.
In this case, the “Arbitration approval letter” is central: while starting as an internal governance document, once it was placed in the contractual volumes and signed-off as part of the “integral” contract, it became probative of PWA’s acceptance.
This is of great relevance for State entities and public authorities: internal approval trails (boards, committees, delegations) that might have been resorted to or created for compliance, may later suggest consent, especially if they are incorporated into contract documentation or if they are consistent with the negotiation record.
Intent of Parties Over Explicit Contact Provisions
The fact that the signed contract says courts does not necessarily imply that arbitration should fail. On this argument, the Court’s answer is pragmatic: the parties’ structure contemplated that “tender clarifications” and compiled documents could modify standard conditions. The fact that the contentious clause remained unedited was not decisive because other negotiated modifications also remained unedited in the base conditions, making the “failure to delete” argument weak.
The Court is hereby applying to its full effect the effet utile principle: it preferred an interpretation that gave effect to a negotiated dispute mechanism rather than letting a standard-form element neutralise it.
Keppel also illustrates the tension between flexibility and evidentiary certainty, as the Court did not “presume” arbitration but built its finding on a dense record. This decision, however, confirms that the evidentiary threshold is not “produce the signed clause” so much as “prove the common intention,” which can be done by a series of documents and conduct.
As noted by commentators, Keppel resonates with the ongoing reform discussion about aligning internal and international regimes and relaxing formalism, while keeping writing requirements largely as proof rather than validity constraints. This decision illustrates that commercial reality sometimes produces arbitration consent in negotiated pathways rather than in clear drafting, and that courts can still validate it where the intention is clearly evidenced.
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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