On 4 July 2018, the Cour de Cassation issued decisions in two cases with slightly different factual backgrounds but with the same solution.

In the first case, the German company Mr. Agrarhandel GmbH and the French companies Tiwy and Etablissements Laboulet (“Laboulet”) sold sunflower seeds to each other. In the second case, another German company Werner Tiernahrung GmbH and the French companies Tiwy and Laboulet used to have business relations with regard to the supply of bird food. As part of a factoring agreement, the companies Tiwy and Laboulet transferred invoices issued to each German company to the Delubac and Cie bank (“Bank”). In both cases, these invoices remained unpaid, despite several formal notices. The Bank then sued both German companies for damages for disloyal behaviour. During a separate set of proceedings, each company raised a jurisdictional plea, invoking the arbitration clause.

The Court of appeal held that the commercial court has no jurisdiction. The Bank consequently seized the Cour de Cassation. The Bank considered that the arbitration agreement was inapplicable to the tort action based on the unfair behaviour of a ceded debtor.

The Cour de Cassation upholds the judgement, ruling that the transfer of invoices constitutes a sufficient link between the sales and the factoring contracts. It dismisses the Bank’s appeal, deciding that the tortious character of the action was not sufficient, in itself, for the arbitration clause to be manifestly inapplicable.