In France, the standard for proving the civil liability of arbitrators has been a controversial issue because of the divergent interpretations adopted by the appellate courts. The French Supreme Court however recently laid this controversy to rest in confirming the high threshold that must be met, i.e. “a personal breach equivalent to wilful misrepresentation or constitutive of fraud, gross negligence, or a denial of justice”. (Civ.1, 15 January 2014).

This case concerned a dispute arising out of a share transfer agreement. In its award of 23 June 2000, the Arbitral Tribunal ordered the seller to reimburse the buyers for the amounts received in exchange for the shares. In 2004, the seller applied to the same Arbitral Tribunal to have the arbitration reopened due to newly discovered facts in connection with the value of the shares. The Tribunal declared the seller’s claim admissible and issued a new award, this time against the buyers, inter alia condemning the buyers to compensate the seller for wilful misrepresentation of the value of the shares. This award was subsequently annulled by the Paris Appeal Court for violation of the principle of res judicata.