Polar Opposites – French Cour de cassation and UK Supreme Court apply different laws to same arbitration agreement

In a manner diametrically opposed to last year’s UK Supreme Court decision (involving the very same parties and arbitration agreement), France’s Cour de cassation ruled that under a material rule of international arbitration law, an arbitration clause is independent from the main contract in which it is contained, and that its existence, effectiveness and extension must be examined in the light of the mandatory rules of French law and public policy – without reference to any state rule, if the parties have not expressly decided to submit that question to such law.

On 28 September 2022, the Cour de cassation, France’s highest judicial authority, delivered its judgement in Kabab-Ji S.A.L Company v. Kout Food Group Company. The decision endorsed the earlier decision of the Cour d'appel to not annul the arbitral award rendered by a ICC constituted tribunal in September 2017.

In doing so, the Cour de Cassation held: