In two rulings handed down on February 12, 2025, the French Supreme Court dismissed the appeals brought by the Libyan State against the arbitral awards rendered in favor of the Turkish companies Nurol and Cengiz, the latter having been represented by Teynier Pic in both the arbitration and the annulment proceedings. These companies initiated the arbitration proceedings after their investment projects in Libya were interrupted following the events of 2011, on the basis of the bilateral investment treaty (BIT) signed between Turkey and Libya in 2009.
Before the French courts, the Libyan State contested, in particular, the jurisdiction of the arbitral tribunals. In the State’s view, the investments did not comply with Libyan law or even certain transnational principles relating to public policy and could not therefore benefit from the protection of the BIT.
The Paris Court of Appeal and then the French Supreme Court rejected this argument: the legality of the investment is a matter for the substance of the dispute (on which the French courts cannot rule); it does not relate to jurisdiction, which is determined according to the common will of the parties outside any state law, in accordance with the case law established in French law since the 1993 Dalico ruling of the French Supreme Court (which already involved a Libyan public entity). By aligning the two systems of arbitral jurisdiction (in commercial matters and in investment matters), French case law makes a major contribution to the debate currently raging in all the world’s major investment arbitration centers: can arbitrators hear cases involving investments that are null and void or alleged to be null and void? The debate is reminiscent of the one that led to the landmark rulings on the substantive independence of arbitration clauses from the contract containing them (Gosset ruling); on the legal autonomy of arbitration clauses from the same contract (Hechet ruling); and on the arbitrability of disputes involving public policy (Ganz and Labinal rulings). By unifying commercial arbitration law with investment arbitration law, French case law also simplifies the interpretation of the latter and contributes to its effectiveness.
Also noteworthy is an important advance in the Cengiz ruling: the French Supreme Court confirmed that investment arbitrators have the power to order the release of bank guarantees as compensation. This measure is important in practice in construction or infrastructure projects in high-risk countries.
Cass, 1re Civ., 12 février 2025, pourvois n° 22-11.436 et 21-22.978
