THE AUTHORS:<\/strong> On Tuesday, 24 March 2026, the law firm Jones Day<\/a> hosted a conference on anticipating international enforcement strategies in the context of arbitration. The session was moderated by Mr Thomas Dauvillier<\/a> (Senior Associate, Jones Day<\/strong>) and featured Mr Michel Thirion<\/strong> (Senior Legal Counsel in charge of litigation, TotalEnergies<\/strong>), Ms Asma Mze<\/a> (Partner, LX Avocats<\/a>), Professor Lilian Larrib\u00e8re<\/strong> (Professor, Universit\u00e9 Paris Nanterre<\/strong>), Mr Cyril Philibert<\/a> (Partner, Jones Day<\/strong>) and Ms Claire Pauly<\/a> (Partner, Jones Day<\/strong>).<\/p>\n\n\n\n Mr Dauvillier opened the discussion by recalling that, in international arbitration, an award, however well-reasoned, only truly has value if it can be enforced. The very fact that one speaks of forced enforcement shows that it does not occur automatically. While one might assume that a respondent ordered to pay should simply comply, the reality is more nuanced: there are various legitimate mechanisms, both for challenging and resisting enforcement. An informed respondent can anticipate these and not only mitigate their effects but, in some cases, use them to their advantage.<\/p>\n\n\n\n Professor Larrib\u00e8re explained that enforcement strategies must be prepared in advance, starting from the arbitral proceedings. According to him, if the respondent waits until the award is rendered to consider these issues, significant difficulties may arise. Preparation therefore involves bringing to the arbitral tribunal\u2019s attention any difficulties encountered during the proceedings, particularly in light of Article 1466 of the French Code of Civil Procedure, which prevents a party from invoking before the annulment judge any irregularities that were not raised before the arbitral tribunal.<\/p>\n\n\n\n He also highlighted the uncertainties surrounding the interpretation of this provision: the Schooner decision accepts that, once a grievance has been raised before the arbitral tribunal, additional arguments may subsequently be developed before the reviewing judge. By contrast, a decision of the Paris Court of Appeal requires that all irregularities be raised during the arbitral proceedings. He then outlined several strategies that may be used at the enforcement stage, including actions to set aside the award, requests for a stay under Article VI of the New York Convention on the recognition and enforcement of foreign arbitral awards, as well as more original mechanisms such as anti-suit injunctions, the use of the \u201cretrait litigieux\u201d to repurchase a claim assigned to a third party, or the invocation of forum non conveniens.<\/p>\n\n\n\n Mr Thirion then referred to the development of parallel proceedings in the United States based on Section 1782 of Title XXVIII of the U.S. Code, which allows federal courts to order evidence-gathering measures in support of foreign proceedings. He recalled that three main conditions must be satisfied: the person from whom discovery is sought must be located within the jurisdiction of the court, the request must support a foreign proceeding, and it must be made by a person with an interest in the matter. If these conditions are met, the court then exercises its discretion in deciding whether to grant the request, in light of the Intel factors, such as the nature of the foreign proceedings, the possibility of circumventing evidentiary restrictions, or the burdensome nature of the request.<\/p>\n\n\n\n He illustrated these practices with two ongoing proceedings involving TotalEnergies before U.S. courts. In one case, a request for document production was filed at the time TotalEnergies was preparing to begin its listing on the New York Stock Exchange. The company challenged the request before the federal court, arguing in particular that the request was excessive, that the applicant lacked standing, and that the timing of the request was opportunistic. In another case related to enforcement through seizures, the request sought to verify, through U.S. banks, the existence of potential payments or debts that may not have been disclosed.<\/p>\n\n\n\n Ms Pauly then returned to the use of Section 1782 and the possible ways to defend against such requests. She recalled that this mechanism, introduced in 1855, now allows parties to request the production of documents, tangible evidence, or witness depositions in support of foreign proceedings. She noted, however, that since 2022 this provision can no longer be used in support of commercial arbitration. It may nevertheless be relied upon in support of enforcement proceedings or preliminary evidentiary measures such as those provided for under Article 145 of the French Code of Civil Procedure. She also emphasised the broad scope of this procedure, as any person or entity present in the United States may be targeted, including individuals who are not parties to the foreign proceedings. Finally, she outlined several possible strategies for respondents, including seeking to limit the scope of the requests or, in some cases, applying for a similar measure in return.<\/p>\n\n\n\n Ms Mze recalled that under French law, an action to set aside an award or an appeal against an exequatur order does not have suspensive effect: despite the challenge to the award, the creditor may continue enforcement measures. The party ordered to pay may nevertheless request a stay or an adjustment of enforcement, but such a request does not suspend ongoing measures and only produces effects for the future. To obtain it, the applicant must demonstrate that enforcement is likely to cause serious harm, a threshold generally met either where enforcement would threaten the company\u2019s viability or where there is a serious risk that the sums would not be recoverable if the award were later annulled.<\/p>\n\n\n\n Mr Philibert recalled that at the enforcement stage it is necessary to combine arbitration law with the domestic law governing enforcement procedures in order to act effectively against a recalcitrant debtor. He emphasised in particular the role of the third-party debtor, a central mechanism of French law allowing a creditor to seize sums owed to the debtor by a third party, with an immediate impact on the debtor\u2019s cash flow once the award has been granted exequatur. He also referred to the difficulties in identifying assets to be seized, mentioning the use of the bank accounts registry \u201cFicoba\u201d. Finally, he noted that the length of enforcement proceedings often encourages parties to pursue settlement strategies, although these strategies may conflict with the primacy of national law when it comes to enforcement. Mr Philibert illustrated his position with a worked example where a party wants to rescind or annul a settlement agreement to enforce the initial award. In this case, if arbitration agreements have been inserted in the settlement agreement, the local court (the only one that can effectively enforce the award) will decline jurisdiction and invite the parties to initiate new arbitration proceedings to establish the non-validity of the settlement agreement. This example demonstrates that choosing arbitration law without considering the primacy of national law as regards enforcement can lead to significant hurdles at this enforcement stage.<\/p>\n\n\n\n A question was raised regarding the possibilities for recovery when a debtor company has been placed into liquidation. Mr Thirion referred to a similar experience in which, despite obtaining a favorable arbitral award, enforcement proved impossible because the company had been liquidated between the start of the proceedings and the issuance of the award. The possibility of relying on the theory of piercing the corporate veil was explored, but this approach faced the difficulty of demonstrating the effective control of the parent company over the subsidiary. Ms Pauly and Professor Larrib\u00e8re then highlighted that such difficulties may be anticipated by seeking, during the arbitral proceedings, an extension of the arbitration agreement to the parent company in order to engage its liability. This reflection ultimately brought the discussion back to the core message of the conference: in international arbitration, a forewarned respondent is forearmed.<\/p>\n\n\n\n This article was originally published in PBA Bulletin on 17 April 2026, as part of a special edition curated by Paris Baby Arbitration (PBA)<\/a>, in collaboration with Jus Mundi <\/a>and Jus Connect<\/a>.<\/p>\n\n\n\n
Maureen Louis,<\/strong>\u00a0Bachelor of Laws Candidate at University of Paris 1 Panth\u00e9on-Sorbonne<\/strong>
Marianne Mapola<\/strong>, Master 1 International Law Candidate at University of Paris Cit\u00e9 (ex-Paris V Descartes)<\/strong><\/p>\n\n\n\n
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As part of Paris Arbitration Week 2026, Paris Baby Arbitration (PBA)<\/a><\/strong>, in collaboration with Daily Jus<\/a><\/strong> and Jus Mundi<\/a><\/strong>, brings together contributions in a special edition of PBA Bulletin<\/a>,<\/strong> sharing reflections and perspectives from across this year\u2019s events.<\/em><\/h4>\n<\/blockquote>\n\n\n\n
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