THE AUTHORS:
Sarah Monnerville Smith, Partner at Eversheds Sutherland
Margaux Barhoum, Associate at Eversheds Sutherland
In a noteworthy decision dated 30 September 2025, Astaris and Others v. Venezuela (“Astaris”), the Paris Court rejected, as inadmissible, new jurisdictional arguments that had not been raised before the arbitral tribunal. This ruling marks a departure from the Ryan and others v. Poland (“Schooner”) decision rendered by the French Cour de cassation in 2020 and narrows the scope of judicial review at the annulment stage, although the Cour de cassation, and potentially future reforms of French arbitration law, may yet reshape the landscape. Notwithstanding the adoption of Decree No. 2026-741 of 6 August 2026 reforming French arbitration law, which is due to enter into force on 1 January 2027, Article 1466 CPC remains unchanged. The scope of waiver under that provision therefore remains unresolved and is likely to be clarified either by the Cour de cassation or in the context of a future reform of French arbitration law.
Introduction
In the Astaris decision of 30 September 2025, the Paris Court of Appeal signalled a shift in its annulment jurisprudence by rejecting, as inadmissible, jurisdictional arguments that had not been raised before the arbitral tribunal – characterising them as a “radical change in the parties’ line of argument.” This marks an evolution from the landmark 2020 Schooner ruling, in which the Cour de cassation allowed parties to advance new arguments on jurisdiction before the annulment judge, provided that jurisdiction had been debated in the arbitration. This decision thus narrows the scope of the annulment judge’s review of jurisdiction. Yet nothing is settled at this stage. Not only has the Cour de cassation been called upon to rule on this new approach, but the March 2025 Working Group report took a clear stand against the Schooner case law by proposing an amendment to Article 1466 CPC that would extend the scope of waiver to “grievances” and “arguments”. Yet the reform ultimately adopted in Decree No. 2026-741 of 6 August 2026 did not incorporate that proposal. Article 1466 therefore remains unchanged, leaving the precise scope of waiver under that provision to be clarified either by the Cour de cassation or in the context of a future reform of French arbitration law.
Background to the Dispute
The dispute arose out of six contracts for developing Venezuela’s railway network, concluded under a 2001 Framework Agreement signed between Italy and Venezuela (the “Treaty”) aimed at promoting economic and infrastructure cooperation. Article XV of the Treaty provides for ICC arbitration in disputes between Italian and Venezuelan companies relating to its implementation.
With a view to developing three sections of the Venezuelan railway network, the State Railways Institution (“IFE”) entrusted the construction works to Italian construction companies (Astaris, Ghella and Webuild) (the “Italian Constructors”) through six contracts concluded between 2001 and 2014 (the “Contracts”) containing jurisdiction clauses in favour of the Venezuelan courts.
Alleging that IFE and Venezuela had impeded performance, the Italian Constructors commenced ICC arbitration in June 2019 on the basis of Article XV of the Treaty. In an award of 20 March 2023, the tribunal declined jurisdiction, prompting the Italian Constructors to seek annulment before the Paris Court of Appeal.
The Court of Appeal’s Decision
On 30 September 2025, the Paris Court of Appeal dismissed the claimants’ annulment application, holding that their jurisdictional argument was inadmissible because it had not been raised before the arbitral tribunal and amounted to a “radical change in argumentation.”
Departing from the literal wording of Article 1466 of the French Code of Civil Procedure (“CPC”), the Court reasoned that, under that provision, “a party that knowingly and without legitimate reason fails to raise, in due time before the arbitral tribunal, an irregularity, grievance, or argument is deemed to have waived its right to rely on it later.” It added that this presumption of waiver, rooted in duties of consistency (“cohérence”) and loyalty (“loyauté”), applies to all grounds for annulment except violations of international public policy (“ordre public de direction”), which cannot depend on a party’s conduct before the arbitrators.
The Court further noted that, for challenges relating to the jurisdiction of the arbitral tribunal, the presumption of waiver applies regardless of whether the tribunal upheld or declined jurisdiction. This follows from the principle of “competence-competence”, which gives arbitrators “priority” to rule on their own jurisdiction, except in cases of manifest nullity or inapplicability of the arbitration agreement.
The Court observed that it was common ground that the Italian Constructors relied on new arguments, distinct from those advanced before the tribunal. The Court noted that the claimants had argued before the arbitral tribunal that Venezuela’s consent to arbitration derived from an offer to arbitrate contained in Article XV of the Treaty. However, before the Court of Appeal, they instead contended that “Venezuela’s consent to arbitration does not result from an offer to arbitrate made by the State in the [Treaty] but from the circumstances of the case,” arguing that Article XV of the Treaty bound the claimant companies and IFE, and should be extended to Venezuela because of its intervention in the negotiation and performance of the Contracts.
Although the Court found that this shift did not amount to estoppel — noting that it caused no prejudice to the respondents, and the claimants’ intention to favour arbitration remained constant — it held that the “radical change in argumentation” contravened Article 1466 CPC, as the claimants relied on “an offer of arbitration different from the one invoked and debated before the arbitrators.”
The Court therefore declared this new argument inadmissible and dismissed the annulment application.
The Italian Constructors have appealed to the Cour de cassation, whose much‑anticipated decision is expected in early 2027.
Analysis of the Decision
The Astaris decision may mark a shift in French annulment practice on the scope of jurisdictional review.
Article 1466 CPC provides that “a party that knowingly and without legitimate reason fails to raise an irregularity in due time before the arbitral tribunal is deemed to have waived its right to rely on it (emphasis added)”. Originally a judge‑made rule, it was codified in 2011 to “enshrine the principle of estoppel” (See, Report submitted to the French Prime Minister on Decree No. 2011-48 of 13 January 2011 on the Reform of Arbitration Law, French Official Journal, 14 January 2011, No. 0011).
In 2019, the Paris Court of Appeal broadened (if not distorted, as argued in Astaris) the scope of Article 1466, holding in its Schooner ruling that:
- Firstly, this provision “does not concern only procedural irregularities, but all grievances (“griefs”) that constitute grounds for setting aside an award” (“cas d’ouverture”) under French law, except for those relating to a violation of international public policy; and
- Secondly, the waiver presumed under Article 1466 applies to “concretely articulated” grievances (“griefs”), not to categories of arguments (“moyens”).
The Cour de cassation overturned the second prong of that reading in Schooner (2020), holding that provided jurisdiction has been debated before the arbitrators, Article 1466 does not preclude parties from raising new arguments or evidence in that respect before the annulment judge.
In Astaris, however, the Court of Appeal appears to return to a stricter conception of waiver, holding that arguments before the annulment judge must not “radically” depart from those presented to the arbitral tribunal, absent legitimate reason.
This approach may narrow the scope of judicial review on jurisdiction (Astaris expressly articulates a general principle: in line with its 2019 decision in Schooner, the Court of Appeal held that the rule on waiver applies to all grounds for annulment, except challenges based on international public policy (“ordre public de direction“)).
Uncertainty nonetheless surrounds the scope and implications of the decision. It is debatable whether Astaris constitutes a narrow exception to Schooner or reflects broader resistance to the principle established by the Cour de cassation, effectively inviting that Court to revisit its position (See, L. Larribère, ‘Exception ou résistance ? L’arrêt Schooner sur la sellette’, GPL, 18 November 2025; J. Jourdan-Marques, ‘Chronique d’arbitrage: la jurisprudence donne le coup d’envoi de la réforme’, Dalloz Actualité, L. Jandard, ‘Droit de l’arbitrage’, JCP G, 8 December 2025, No. 49, doctr. 1407).
Several commentators view the latter as more plausible (See, L. Larribère). A key indication is that the Court’s reasoning does not rely on the current wording of Article 1466 CPC. Rather, it mirrors, verbatim, the language of Article 13 of the draft Arbitration Code put forward by the Working Group on the Reform of French Arbitration Law in its March 2025 report (See, L. Larribère; L. Jandard; J. Jourdan-Marques; C. Jarrosson, ‘Estoppel, renonciation, article 1466 CPC et jurisprudence Schooner: une clarification s’impose’, Revue de l’arbitrage, 2025, No. 4, pp. 902 and 907), which extends the scope of waiver beyond irregularities to include “grievances” (“grief”) and “arguments” (“moyen”). This report expressly states that this language is intended to overturn the Schooner decision (See, Report and Reform Proposals on French Arbitration Law, March 2025).
The language used by the Court thus strongly suggested that Astaris might be an anticipatory application of the proposed reform, whose adoption was then uncertain (See, L. Jandard). The draft decree on the reform of French arbitration law (See, Ministry of Justice – Directorate of Civil Affairs and the Seal, Draft Decree on the Reform of French Arbitration Law), issued after Astaris, maintained the proposed amendment to Article 1466 CPC. The French Ministry of Justice reiterated that the proposed wording was intended to counter Schooner in the interest of procedural fairness and cited Astaris as an endorsement of the draft reform. A decree has now been adopted, but without the proposed amendment to Article 1466 CPC. The Court’s reliance on the wording of the draft Arbitration Code may therefore be open to renewed debate. Notably, by adopting terminology found in the proposed reform of Article 1466 CPC, the Court extended the waiver mechanism to “grievances” and “arguments”, although the current provision refers solely to an “irregularity”. It has been suggested that the Court did not need to rely on terminology borrowed from the proposed reform to reach this result. A broad interpretation of the current wording of Article 1466 CPC, centred on the notion of “irregularity”, could arguably have supported the same conclusion (See, M. de Fontmichel, ‘Astaris face à Schooner: la concentration des moyens comme limite au contrôle de la compétence arbitrale’, Journal du droit international (Clunet), No. 2, April-June 2026, comm. 8).
However, one cannot exclude the possibility that Astaris’ scope may be limited to cases involving a “radical change in argumentation” (See, L. Larribère). In this regard, the Court noted that (i) not only were the grounds advanced in support of the application for annulment new, but (ii) they also “relied on an offer to arbitrate different from the one invoked and debated before the arbitral tribunal”.
Yet commentators question whether the change was truly “radical” (See, L. Jandard; J. Jourdan-Marques and M. de Fontmichel, JDI 2026, comm. 8). Although this is not explicit in the decision itself, commentators have noted that, both before the arbitral tribunal and before the Court of Appeal, it appears that the claimants relied on Article XV of the Treaty as the basis for jurisdiction. What changed, however, were the modalities through which they argued that Article XV applied to Venezuela: initially as a standing offer to arbitrate made by Venezuela, and later as a clause to be extended to the State by reason of its involvement in the negotiation and performance of the Contracts (See, J. Jourdan-Marques). While these positions significantly differ in analysis, they concern the same clause rather than distinct “offers to arbitrate”, in the Court’s words.
Finally, the Astaris decision also raises questions about the interaction between the waiver under Article 1466 CPC and the doctrine of estoppel. It has been suggested that the Court adopted an unduly narrow view of estoppel by making its application contingent on proof of specific prejudice, even though, under French law, a marked inconsistency in a party’s position is generally regarded as inherently detrimental (See, C. Jarrosson, pp. 908-910 and M. de Fontmichel, JDI 2026, comm. 8). On this analysis, the issue of admissibility ought to have been examined through the prism of estoppel, rather than by relying on Article 1466 (See, C. Jarrosson). Although the Cour de cassation is expected to shed light on the reach of Astaris, the reform as enacted does not modify Article 1466 CPC or otherwise address the Schooner issue. For now, therefore, the fate of the Schooner principle lies primarily in the hands of the Cour de cassation, particularly as no clear timetable currently exists for any further reform of French arbitration law.
Pros and Cons of the Schooner Solution
The solution adopted by the Cour de cassation in Schooner continues to divide scholars and practitioners. At its core, the decision highlights a tension between two fundamental imperatives: the annulment judge’s duty to conduct a full review of the arbitral tribunal’s jurisdiction (in fact and in law), and the requirement of procedural good faith (See, P. Duprey and S. Lemaire, ‘L’évolution du contrôle de la compétence arbitrale au cours des dix dernières années’, Revue de l’Arbitrage, 2022, No. 1, pp. 141-178).
Authors who support the Schooner solution (See, L. Weiller, ‘Cantonnement de la portée de la règle de la renonciation…’, Procédures (Lexis), February 2021, No. 2, comm. 40; P. Duprey and M. le Duc, ‘L’article 1466 du Code de procédure civile à l’épreuve du contrôle de la compétence…’, Revue de l’Arbitrage, 2021, No. 2, pp. 432-453) note that it is the inevitable corollary of the principle that jurisdiction must be subject to full judicial review at the annulment stage. According to well-established case law, the reviewing court exercises full and unrestricted review of jurisdiction, both in fact and in law, with no limitations on its powers of review (See, Cour de Cassation (Civil Chamber 1), 6 January 1987, Southern Pacific Properties (Middle East) Ltd. and Southern Pacific Properties Ltd. v. Arab Republic of Egypt (“Plateau des Pyramides”)), No. 84‑17.274; Cour de Cassation (Civil Chamber 1), 6 October 2010, Abela, No. 09-10.530). One commentator notes that this need for full review at the annulment stage is all the more compelling since arbitration remains an alternative dispute resolution mechanism that derogates from the fundamental principle that, absent a contrary intention of the parties, disputes fall within the jurisdiction of state courts (See, P. Duprey and S. Lemaire, para. 66). Thus, and contrary to what other commentators suggest, far from constituting a violation of the principle of “competence‑competence”, the Schooner solution strikes the appropriate balance: the state judge gives the arbitral tribunal priority in assessing its own jurisdiction, while preserving the ability to exercise full judicial scrutiny to safeguard the effectiveness of the parties’ consent (See, P. Duprey and S. Lemaire). Commentators also note that Schooner offers a pragmatic response to the complexity of international disputes, particularly those arising under investment treaties, by allowing parties to refine arguments that may have been incomplete when jurisdiction was first argued, especially where counsel are not familiar with the evolving law of the seat (See, L. d’Avout, S. Bollée, and E. Farnoux, ‘Droit du commerce international’, Recueil Dalloz, 2021, No. 35, p. 1832; P. Duprey and S. Lemaire; P. Duprey and M. le Duc; L. Weiller). Some supporters of the Schooner approach also argue that it does not give parties free rein to advance inconsistent positions: in their view, the doctrine of estoppel, which must be distinguished from the waiver referred to in Article 1466 CPC, continues to operate as a limiting principle that prevents inconsistent behaviour (See, P. Duprey and S. Lemaire; C. Jarrosson).
Critics, by contrast, argue that Schooner risks rewarding procedural disloyalty and dilatory tactics and contend that the need for full judicial review cannot override the imperative of procedural good faith (See, Th. Clay, ‘Arbitrage et modes alternatifs de règlement des litiges’, Recueil Dalloz, 2021, No. 44, p. 2272; M. de Fontmichel, Journal du droit international, 2021, pp. 1394-1407; Report and Reform Proposals on French Arbitration Law, March 2025). Others also argue that this solution requires arbitral tribunals to raise ex officio any jurisdictional issue that the parties failed to raise, in order to preserve the validity of the award, imposing a burden on arbitrators greater than that borne by state judges (See, P. Duprey and S. Lemaire).
Conclusion
Astaris marks a shift but the extent of that shift remains uncertain. The Court’s reliance on the notion of a “radical change in argumentation” – a concept with undefined contours – only heightens this ambiguity, and the reasoning of the judgment does little to dispel it.
In practical terms, the message to parties is clear: greater vigilance is required at the arbitral stage. The Court’s reasoning suggests that it may no longer be possible to “seek a second bite at the apple” before the annulment judge by introducing new irregularities, grievances, or arguments – except for public international policy. It remains to be seen how the Cour de cassation will navigate the tension between the Astaris approach and the French courts’ firmly entrenched principle of de novo review of jurisdiction, particularly in the absence of a clear timetable for any further reform of French arbitration law. Given the practical stakes and the questions raised by the ruling, it is to be hoped that guidance will be provided as swiftly as possible to restore clarity. It should be noted that the Cour de cassation rejected the Italian Constructors’ request to expedite the proceedings.
ABOUT THE AUTHORS
Sarah Monnerville Smith is a partner in Eversheds Sutherland’s Litigation and International Arbitration team in Paris. She represents multinational corporations, States and State-owned entities in strategic commercial and M&A litigation, international arbitration and multi-jurisdictional proceedings relating to the enforcement of arbitral awards and foreign judgments. Her practice spans a wide range of sectors, with a particular focus on the industrial, energy, financial services, and TMT sectors. A former Co-Chair of CFA40, the under-40 group of the French Arbitration Committee, she also lectures on international dispute resolution and is recognised as a “Global Elite Thought Leader Under 45” by Lexology Index.
Margaux Barhoum is an Associate in Eversheds Sutherland’s Litigation and International Arbitration team in Paris. Her practice focuses on investor-State and international commercial arbitration. She also has experience in enforcement and annulment proceedings relating to arbitral awards before French courts. Margaux advises States, State-owned entities and international companies across a range of sectors, with a particular focus on energy, mining, defence and construction. Prior to joining Eversheds Sutherland, she practised in the international arbitration groups of two major international law firms.
*The authors wish to express their sincere thanks to Yehya Fouda, former intern at Eversheds Sutherland, for his valuable contribution to this article.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
