International Arbitration Newsletter
Second Semester 2025
Paris Court of Appeal, 1 July 2025, Oschadbank, no. 24/05336
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 1520(1) FCCP – Competence ratione temporis of the tribunal
The temporal jurisdiction of the arbitral tribunal must be assessed solely with regard to the date on which the dispute arose, which in this case was after the BIT entered into force.
Article 1520(2) FCCP – Independence and impartiality of the arbitrator
Participation by an arbitrator in an amicus curiae brief, years after a final award and unrelated to the dispute, does not establish lack of independence nor lack of impartiality. Temporal distance and absence of linkage to the dispute prevent such conduct from constituting a reasonable doubt.
Summary
The Oschadbank saga arises from the post-2014 investment disputes following Russia’s annexation of Crimea. Oschadbank, a Ukrainian State-owned bank, alleged that assets and investments it held in Crimea were expropriated or otherwise rendered unusable following Russia’s taking of control. On that basis, Oschadbank initiated investor-State arbitration in 2016, relying on the Russia-Ukraine BIT (1998) and seated the proceedings in Paris under the auspices of the PCA (Permanent Court of Arbitration).
By a Final Award dated 26 November 2018, the arbitral tribunal upheld its jurisdiction and found Russia in breach of the BIT, including by way of an unlawful expropriation of protected investments in Crimea. It ordered Russia to pay over one billion dollars to Oschadbank. Russia then pursued multiple procedural avenues, including an annulment proceeding against the award, and revision proceedings before the arbitral tribunal.
This “revision” track later generated its own satellite litigation in Paris: the tribunal issued a decision on 11 December 2023 dismissing Russia’s revision request. Russia then filed a further annulment attempt directed at that 2023 decision, prompting an incident on whether that act was an award, a sentence susceptible to annulment. In an Order 24/05331 of 14 January 2025, the Paris Court of Appeal treated the 11 December 2023 act as a true arbitral award for these purposes and declared Russia’s annulment action admissible at that procedural stage. This proceeding is still pending.
In the main annulment proceedings against the 2018 award, the Paris Court of Appeal initially sided with Russia. In a Judgment 19/04161 dated 30 March 2021, it set aside the award for lack of jurisdiction, reasoning that the BIT’s temporal application clause (from a certain date) operated as a jurisdictional temporal condition that was not satisfied on the facts (the investment predated the date of entry into application of the Treaty).
On 7 December 2022, in a Judgment, 21-15.390, the Cour de cassation quashed the Court of Appeal’s approach to the temporal issue, considering that for purposes of jurisdictional control under Article 1520(1) FCCP, the annulment judge must focus on the treaty’s arbitration offer rather than transforming a broader treaty “application” clause into an additional condition of consent to arbitrate.
The case was therefore remanded to the Paris Court of Appeal, which announced that the matter would be heard in formation solennelle, a five-judge bench presided over by the First President of the Court of Appeal, as part of a broader effort to revive solemn sittings for especially sensitive or complex matters, particularly after cassation.
By judgment of 24 June 2025, publicly communicated by press release dated 1 July 2025, the Paris Court of Appeal dismissed Russia’s set-aside application, thereby maintaining the award’s effectiveness in France.
Following the Cour de cassation’s guidance, the Court held that the arbitration offer had to be assessed “within the sole limits” of the treaty provision containing the offer (as informed by the treaty definitions of “investor” and “investment”). It concluded that the arbitral tribunal did have jurisdiction, and rejected Russia’s remaining grounds, including alleged violation of international public policy, alleged failure by the tribunal to comply with its mandate, and alleged reasonable doubt as to the independence and impartiality of one arbitrator.
Analysis
Reading of the Treaty Offer: A Matter of Consent
The Court of Appeal aligns itself with the Cour de cassation’s finding that the annulment judge must identify consent to arbitrate by reading the BIT’s arbitration offer as it is actually formulated, together with the treaty’s definitional provisions on “investor” and “investment”, rather than treating other treaty clauses as jurisdictional “add-ons”. As such, the arbitration offer must be assessed “within the sole limits” of the treaty provision containing that offer, as clarified by the treaty definitions.
That framing matters beyond ratione temporis, as it rejects Russia’s three-pronged jurisdictional objection (ratione temporis, ratione loci, ratione materiae) without converting annulment into a merits-like inquiry into Crimea’s contested status or the historical formation of the investment. The Court appears to be refusing to let a sovereignty dispute operate as a carve-out from the BIT where the relevant assets were in territory under Russian control following the 2014 annexation, and as treating the protection of investments as not dependent on their original creation date in the way Russia argued.
Independence and Impartiality
One of the challenges in this case also targeted a co-arbitrator’s later attempt to participate as amicus curiae in US appellate proceedings in a different dispute where Russia was a respondent. The Court answers with a two-step analysis, first on the independence vis-à-vis the investor, and second on the impartiality vis-à-vis Russia, using definitions it has been stabilising in recent case law. Independence is assessed objectively through “precise and verifiable” external facts capable of affecting an arbitrator’s freedom of judgment. On the other hand, impartiality is about the absence of bias or preconceptions, potentially influenced by multiple factors, including nationality and legal environment.
The Court considered both timing and relatedness, noting that the amicus initiative was both unrelated to the subject-matter of the arbitration, and occurring more than five years after the 2018 award. As such, it was not probative of the arbitrator’s state of mind during the relevant adjudicatory period. The same fact-pattern could look different if the arbitral tribunal were, at the time, still actively seized of post-award revision proceedings.
A Pragmatic Mission Review
Russia argued that the tribunal could not have complied with its mandate because it devoted only approximately 825 hours of work to a record said to contain roughly 9 500 pages. The Court’s response is clear: the annulment judge does not control how much time arbitrators spend examining the file, and the CPC’s diligence expectations do not create an enforceable “hours worked” standard.
The Court also considered the UNCITRAL Code of Conduct for arbitrators in investment disputes and used it under its proper normative level, meaning a recommended guidance, not a text defining the tribunal’s mission. The decision thus reinforces the principle under which no review of the reasoning’s pertinence, no backdoor merits control (See Paris Court of Appeal, 16 May 2023, no. 21/21189, Imagine), while pragmatically and logically adding that time sheets are not an annulment ground.
Procedural Fraud Under International Public Policy
On international public policy, the Court reiterates the Belokon-style approach (See Sygna’s Arbitration Newsletter, First Semester 2022, pp. 18-19): review is directed at whether enforcement would characteristically violate the values and principles of the French international legal order, not whether the tribunal’s reasoning was correct.
Applied to procedural fraud, the Court adopts two conditions: it is not enough to allege hidden documents (or forged evidence, false testimony, etc.); one must also show that the fraud materially influenced the outcome by way of “surprise”. In Oschadbank, even assuming concealment about the investment’s dating, the Court concludes there was no “surprise” because the tribunal had treated the issue as non-determinative given its understanding that the BIT’s definition of investment did not impose a temporal obligation of the sort Russia alleged.
Crimea Cases and Non-Participation
Finally, Oschadbank suggests that, at least in Paris annulment review, arguments about “territory” in the face of contested sovereignty, reciprocity, and the “foreign” character of investments will be processed through a consent-focused lens, and that strategic non-participation carries predictable costs when the record and the tribunal’s framing of issues are later attacked in set-aside proceedings.
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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