THE AUTHOR<\/strong>: Paris Baby Arbitration (“PBA”)<\/a> is building a strong community of future arbitration professionals linked to Paris and beyond. Partnering with\u00a0Daily Jus<\/a>, PBA shares sharp, bilingual analyses and fresh perspectives on the developments shaping the arbitration field, making it more accessible to students and young practitioners worldwide.<\/em><\/p>\n\n\n\n In a decision rendered on 30 September 2025, Consorzio di Imprese Italiane v. Venezuela and Instituto Aut\u00f3nomo de Ferrocarriles<\/em>, 23\/11499<\/a>, the Paris Court of Appeal dismissed an application to set aside an ICC arbitral award, holding that a party cannot establish arbitral jurisdiction before the annulment judge by relying on a ground that was not argued before the arbitral tribunal. In upholding the award, the Court reaffirmed its reputation as a pro-arbitration jurisdiction.<\/p>\n\n\n\n On the facts, three Italian companies (the \u201cClaimants<\/strong>\u201d) had entered into six contracts with the Bolivarian Republic of Venezuela and the Instituto de Ferrocarriles del Estado<\/em> (the \u201cRespondents<\/strong>\u201d) for the design and construction of three sections of the Venezuelan railway network (the \u201cContracts<\/strong>\u201d). Difficulties in the performance of these Contracts led the Claimants to initiate ICC arbitration proceedings against the Respondents, relying on the Framework Agreement for Economic and Industrial Cooperation, Infrastructure and Development<\/a> concluded between Italy and Venezuela on 14 February 2001 (the \u201cTreaty<\/strong>\u201d), based on the fact that the Claimants interpreted Article XV of the Treaty as containing a unilateral offer to arbitrate.<\/p>\n\n\n\n By an award dated 20 March 2023<\/a>, the arbitral tribunal ruled in favour of the Respondents, declining jurisdiction over the dispute under the Treaty. Dissatisfied with the outcome, the Claimants filed, on 27 June 2023, an application before the Paris Court of Appeal to set aside the award. In doing so, they advanced a new argument, asserting that the tribunal\u2019s jurisdiction derived from Venezuela\u2019s interference in the negotiation and performance of the Contracts.<\/p>\n\n\n\n The Respondents, in turn, argued that this claim was inadmissible, as the Claimants had fundamentally altered their case. They submitted that the Claimants were now attempting to establish the tribunal\u2019s jurisdiction not under an investment arbitration clause but under a contractual one, thereby shifting from investment to commercial arbitration. According to the Respondents, such a change breached Article 1466 of the French Code of Civil Procedure, violated the principle of estoppel<\/a>, and disregarded the competence-competence<\/a> principle by transforming the annulment judge into a court of first instance ruling on a different basis for jurisdiction than that debated before the arbitrators.<\/p>\n\n\n\n The legal issue before the Court of Appeal, therefore, concerned the admissibility of a new jurisdictional argument raised for the first time before the annulment judge.<\/p>\n\n\n\n In analysing the parties\u2019 positions, the Court examined the mechanisms between the duty of procedural fairness set out in Art. 1466, the competence-competence principle, and the doctrine of estoppel, ultimately finding the Claimants\u2019 argument inadmissible and rejecting the application to set aside the award.<\/p>\n\n\n\n First, the Court recalled that Art. 1466, applicable to international arbitration by virtue of Art. 1506 of the same Code, establishes a presumption of waiver: a party that knowingly and without legitimate reason refrains from raising an irregularity or argument before the arbitral tribunal is deemed to have waived its right to do so later. The Court gave this presumption a broad scope, founded on the general duty of consistency and procedural fairness owed by the parties throughout the proceedings. The only exception to such rule, it held, concerns violations of international public policy, which cannot depend on a party\u2019s procedural conduct during the arbitration.<\/p>\n\n\n\n Second, the Court clarified that the competence-competence principle merely grants the arbitral tribunal chronological priority to rule on its own jurisdiction and that in any case, Art. 1520(1) of the French Code of Civil Procedure remains applicable as a ground for annulment, whether the arbitral tribunal has upheld or declined its jurisdiction.<\/p>\n\n\n\n The Court then turned to the principle of estoppel, which precludes a party from adopting, within the same proceedings, contradictory or inconsistent positions that are likely to mislead the opposing party as to its intentions. The Court noted, however, that estoppel only applies where prejudice has been established.<\/p>\n\n\n\n In the present case, it was undisputed that the Claimants had based their annulment application on arguments entirely new and distinct from those made before the arbitral tribunal. Initially, they had argued that Article XV of the Treaty contained a unilateral offer by the State to arbitrate disputes with investors from the other Contracting Party, while before the Court, they contended that Venezuela\u2019s consent to arbitration arose from the factual circumstances of the case rather than from any offer contained in the Treaty.<\/p>\n\n\n\n Given the absence of demonstrated prejudice and the Claimants\u2019 consistent intent to establish the tribunal\u2019s jurisdiction, the Court held that estoppel did not apply. Nevertheless, it found the new argument inadmissible, considering that invoking a different offer to arbitrate from that debated before the arbitral tribunal constituted a new argument, in violation of Article 1466.<\/p>\n\n\n\n This is not the first time that the Paris Court of Appeal has addressed the admissibility of new arguments raised before the annulment judge. It had previously developed the presumption of waiver under Article 1466 in its Schooner<\/em> decision (CA Paris, 2 Apr. 2019, No. 16\/24358<\/a>), later quashed by the French Court of Cassation in 2020. Indeed, in its judgment of 2 December 2020 (Civ. 1st, No. 19-15.396<\/a>), the Cour de Cassation<\/em> held that parties who had argued the issue of jurisdiction before the arbitral tribunal are entitled to raise new arguments or evidence on that issue before the annulment judge.<\/p>\n\n\n\n Despite that precedent – expressly invoked by the parties – the Paris Court of Appeal has chosen to maintain its prior stance based on the presumption of waiver. By emphasising the duty of procedural consistency and fairness, the Court seeks to deter parties from reserving fresh arguments for a potential annulment proceeding, thereby reaffirming its arbitration-friendly approach.<\/p>\n\n\n\n The matter, therefore, remains open: should an appeal on this point of law be lodged, it will be for the Cour de Cassation<\/em> to determine whether to revisit its case law and set limits on the right to raise new arguments in annulment proceedings where the applicant relies on a different offer to arbitrate than that invoked before the arbitral tribunal.<\/p>\n\n\n\n <\/p>\n\n\n\n This article was originally published in the Biberon newsletter on Wednesday November 5, 2025,<\/em> with thanks to Paris Baby Arbitration, Jus Mundi & Jus Connect<\/em>.<\/p>\n\n\n\n
Raluca Szabo<\/strong>, International Dispute Resolution Lawyer<\/p>\n\n\n\n
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