SA Planor Afrique v Emirates Télécommunications Corporation (ETISALAT), Cour d'Appel de Paris arrêt no. 10/21349, 17 January 2012, concerned a dispute between two shareholders in Telecel Faso SA (Telecel), a company organised under the laws of Burkina Faso. ETISALAT was the controlling shareholder in Atlantique Telecom (Atlantique), which in turn held a 51% interest in Telecel. SA Planor Afrique (Planor) held a 44% stake in Telecel.

During a shareholder meeting in January 2006, at which Planor was not present, the shareholders agreed to increase the capital of Telecel, such that Atlantique would increase its shareholding to nearly 80%, while Planor's would decrease to 20%. The move gave rise to a dispute between Planor and Atlantique.

In September 2007, Planor and ETISALAT concluded a Memorandum of Agreement (MOA) pursuant to which the former's share capital would be increased to 44%, 12% of which it would then cede to Atlantique. A dispute arose under the MOA and ETISALAT invoked the arbitration clause contained in it. In an award rendered on 9 September 2010 in Paris under the ICC Rules, Planor was ordered to comply with its obligations under the MOA, including its obligation to transfer shares to Atlantique. The President of the Paris Tribunal of First Instance granted exequatur of the award on 14 October 2010.

Planor appealed from the decision to grant exequatur and applied to have the award of 9 September 2010 set aside on the ground that enforcement of the award in France would be contrary to international public policy because it was inconsistent with judgments rendered in Burkina Faso in 2008 which had been granted exequatur under a bilateral treaty for the enforcement of civil judgments between France and Burkina Faso on 29 June 2011.

Before the arbitral award was made, Planor had obtained a judgment from the tribunal de grande instance de Ouagadougou in Burkina Faso on 27 February 2008 (which had been upheld on appeal), invalidating the capital increase of January 2006, and a second judgment of 9 April 2008 (also upheld on appeal) ordering Atlantique to cede all of its shares in Telecel to Planor.

The Paris Court of Appeal found that, under the terms of the treaty, the Burkina Faso court decisions had full force and effect in France. It further held that, in the absence of any allegations of fraud affecting the judgments rendered in Burkina Faso, the arbitral award rendered on 9 September 2010 (which would have resulted in Atlantique holding a 68% share in Telecel and Planor holding an approximately 32% share) was irreconcilable with those judgments (which ordered Atlantique to cede all of its shares to Planor). Therefore, the Court of Appeal ordered that the arbitral award be set aside and that the order granting it exequatur be quashed.

The relationship between foreign court proceedings and international arbitration has garnered much attention in the context of European law, and in particular the Brussels Regulation. While the present case does not fall under that Regulation and can therefore be distinguished from cases such as West Tankers, it nonetheless raises interesting issues with respect to the disruptive and wasteful potential of parallel court and arbitral proceedings. In the present case, an appeal of the above decision has been filed with the French Cour de Cassation. In addition, both Atlantique and ETISALAT have appealed the Tribunal of First Instance's decision of 29 June 2011 to grant exequatur to the judgments of the Burkina Faso courts. The dispute thus promises to be both long and costly.

It is notable that the present decision makes no mention of ETISALAT having argued that the arbitration clause deprived the courts in Burkina Faso of jurisdiction, either before those courts or before French courts in the proceedings to grant exequatur to the resulting judgments.

Parties would also be well advised to note that the relevant dates for deciding whether a foreign judgment prevails over an arbitral award are the dates that the award and judgment were rendered, and not the dates on which they were granted exequatur or enforced.