A promise to sell is entered into between different shareholders of a consumer goods import-export company, including an arbitration clause that states: “All disputes to which this promise to sale may give rise, in particular as to its validity or performance, shall be settled by arbitration”.
When seized by a shareholder, the Versailles Commercial Court recognizes the validity of the promise to sell. The jurisdiction of the Commercial Court is then challenged on appeal for the benefit of the arbitral tribunal, pursuant to Article 1443 of the Code of Civil Procedure, resulting from Decree No. 2011-48 of 13 January 2011. The Court of Appeal of Versailles dismisses the arbitration clause and confirms the judgment on the grounds that Article 1443 of Decree No. 2011-48 only applies when the arbitration agreement was concluded after the first day of the fourth month following its publication (1 May 2011). In the opposite case (case in point) is then applicable the previous version of Article 1443 of the Code of Civil Procedure, which sanctions the failure to appoint arbitrators or the terms of appointment by the nullity of the clause.