In Equivalenza, the Court of Appeal of Paris has set aside by judgment 5 September 2019, no. 17/03703, a decision by the Tribunal de Commerce de Bordeaux, which - in spite of an arbitration agreement between the parties - had affirmed its jurisdiction on the grounds that the dispute concerned a “rupture brutale” of the business relationships between the parties, which was a tortious claim.

The Court of Appeal has held that (i) state courts have jurisdiction unless the arbitration agreement is manifestly null and void or manifestly not applicable, (ii) its applicability had been argued on the ground that the claim was based on a tort, (iii) a rough termination of a contract is a contractual issue, (iv) the arbitration agreement is then neither invalid nor not applicable, (iv) the state courts have no jurisdiction on that dispute.

The view expressed in the first instance that tortious liability claims would not be arbitrable is not then shared by the Court of Appeal.

The New York Convention provides at art. II.1 that each Contracting State shall recognize an arbitration agreement which submits to arbitration disputes

“in respect of a defined legal relationship, whether contractual or not”.

Also the UNCITRAL Model Law defines at art. 7(i) as arbitration agreements all the agreements which submit to arbitration disputes

“in respect of a defined legal relationship, whether contractual or not”.

The same approach is frequent even in Court proceedings such as the Supreme Court of the United States in Carnival Cruise Lines Inc. v. Shute (499 US 585, 118 S.ct. 1522) and in Prima Paint v. Flood and Conklin (388 US 395, no. 2/1967) and the Court of Appeal of the State of Alberta, Canada in Kaverit Steel et al. v. Kone Corporation (Yearbook Commercial Arbitration, 1994, 1643).

It must be said that this approach is – as it frequently happens – not unanimous. The contrary opinion had been expressed for example by the Tribunal Supremo of Spain in Catalana de Occidente SA et al. v. Fiatc Mutua Siguros y Reaseguros a Prima Fija and Europarty SA (Cahiers Arb. 2010, 2, at 541).

It is submitted that an arbitration agreement covering any dispute arising from a contract includes those which are the result of a breach of that contract, even if they also amount to a tort.