Article 4(1) of the French Code of Civil Procedure provides that "the subject-matter of the dispute is determined by the respective claims of the parties".

Tecnimont SPA (Tecnimont) (an Italian company) entered into a subcontracting contract with J&P Avax (Avax) (a Greek company) for the construction of a propylene terminal. The contract contained an arbitration clause that provided for ICC arbitration in Paris.

Disputes arose between the parties and Tecnimont commenced arbitration proceedings. The tribunal rendered a partial award on 10 December 2007 in favour of Tecnimont on the issue of liability. Avax sought the annulment of the award before the Paris Court of Appeal on the ground that the tribunal had not been properly constituted.

Avax alleged that the chairman of the tribunal lacked independence because of the existing relationship between the chairman's global law firm and Tecnimont's parent company, as well as one of its subsidiaries. In his statement of independence of 2002, the chairman had disclosed his law firm's prior relationship with Tecnimont's parent company. In July 2007, Avax questioned the chairman's impartiality, alleging that the chairman's law firm had had relationships with Tecnimont's parent companies and one of its subsidiary between 2002 and 2007. In September 2007, Avax unsuccessfully challenged the chairman's appointment before the ICC Court of Arbitration. Avax reserved its rights and continued to participate in the arbitration. Shortly after the tribunal rendered its partial award, the chairman resigned, stating: "I do not deny that a party could perceive this situation as being incompatible with the requirement of independence."

The Supreme Court reversed the Court of Appeal's decision to annul the award and referred the case to the Court of Appeal of Reims.

The Court provided only sparse reasons for its decision, which it based on Article 4(1) of the French Code of Civil Procedure. The Court appears to have considered that the Court of Appeal's decision was based on matters beyond the scope of the parties' claims. The Court of Appeal allowed the application for annulment on the basis that the facts giving rise to the challenge to the chairman's independence were only brought to the attention of Avax after the partial award was delivered on 10 December 2007. However, it appears that Avax's pleadings had been based on the facts known to it prior to the issue of the partial award. The Supreme Court noted that almost all the facts relied upon by Avax before the Court of Appeal were clearly mentioned in Avax's written application to the ICC Court of 14 September 2007, and before the award was rendered. Therefore, the Supreme Court considered that, by relying on matters brought to Avax's attention after the issue of the partial award, the Court of Appeal had, in effect, redefined the subject-matter of the dispute, and had thereby breached Article 4 of the French Code of Civil Procedure.

The exceptional circumstances of this case are noteworthy, particularly as the arbitrator acknowledged his perceived lack of independence after the delivery of the partial award, and following an unsuccessful challenge to his appointment to the ICC Court. Of greater interest, though, is the Supreme Court's readiness to overturn the Court of Appeal's decision to annul the award, despite the chairman's resignation and acknowledgement of a perceived lack of independence. Nevertheless, one would expect Avax to succeed, eventually, in having the award set aside by the Court of Appeal of Reims, as it will have an opportunity to reformulate its pleadings to ensure they are consistent with the decision of the Paris Court of Appeal.