The law is unfortunately rich, as it is well known, of technicalities which sometimes, particularly when construed in a strictly literal way, produce results which – while perhaps being technically perfect – are far away from real justice, which should be the purpose of the law.
In various jurisdictions, a party which does not object to an irregularity during arbitral proceedings may not raise it subsequently, when it challenges the award.
Sec. 1466 French civil procedure code is along this line and provides that the lack of objection to such an irregularity amounts to a waiver to it.
This has been construed as requiring that arguments not raised during arbitral proceedings cannot be raised when the award is challenged.
In Schooner (2 April 2019, 16/24358) the Court of Appeal, Paris, has refused to set aside an award on jurisdictional grounds since they were different from the jurisdictional arguments which had been raised during the arbitral proceedings.
That judgement was appealed to the Court of Cassation. Its 1st Civil Chamber has held on 2 December 2020 19-15395 that the above statutory provision is to be construed as providing for a waiver to categories of objections, which have not been raised during the arbitral proceedings and not to specific arguments. The objection to jurisdiction raised during the arbitral proceedings, based on given arguments, was consequently not preventing that party from raising other jurisdictional arguments in the setting aside proceedings.
It has been suggested that since the Court has decided on an application to set aside an award on grounds of jurisdiction, it has intended that its ruling apply only to jurisdictional issues.
Unless this limit was clearly expressed in such ruling, it should apply to any irregularity.
However, even assuming that the Court ruling should be considered to be an exception to a general construction of the rule, which would continue to exclude any new specific jurisdictional arguments, even if developed in support of a duly made challenge of the arbitral jurisdiction, it is suggested that an exception to that rule could be well justified by the duty of a Court to establish its jurisdiction even above the arguments of the parties.