The maxim of ne ultra petita is well-understood. But, Tribunals also enjoy discretion to conduct arbitrations efficiently. What happens when these two concepts clash? What if the parties do not seek a particular relief, but a tribunal orders it believing such relief aids efficiency?
The Paris Court of Appeal considered the above in Tecnimont SPA & KT-Kinetics Technology SPA v TotalEnergies EP Italia SPA. The Court examined whether a Partial Award could be annulled on the basis, inter alia, that the specific bifurcation was not requested by the Parties. The Court found that annulment on such grounds was not permissible under Article 1520 of the French Code of Civil Procedure. The Court also ruled on whether awards can be partially annulled and whether partial annulment is an appropriate remedy if arbitrator bias is in issue.
The Project and the Arbitration
In 2012, the Parties entered into an EPC Contract to develop a hydrocarbon field. The Project ran into delays leading the Parties to conclude a MoU and an Interim Agreement in 2015 which modified contractual deadlines, the schedule of work and the price. In 2020, Tecnimont issued a EUR 500 million claim to Total alleging that Total’s breaches had caused Tecnimont to incur additional costs and suffer damages. Tecnimont and KT commenced Arbitration in 2021. One of the issues in dispute was whether Tecnimont and KT were entitled to issue claims for events that had occurred before July 2018.
When the Arbitration commenced, Total sought bifurcation of the proceedings into two phases – merits and quantum. Tecnimont and KT opposed this. The Tribunal ordered bifurcation, but not the kind that Total had sought. It ordered that Phase 1 of the proceedings would deal with the admissibility of pre-2018 claims and the effect of certain settlement agreements, and that Phase II would deal with the merits of the admitted claims. In November 2023, a Partial Award held that (i) Tecnimont and KT were precluded from claiming for pre-2018 events; (ii) Tecnimont and KT were entitled to claim for only 20% of the total compensation of the non-precluded claims; and (iii) the Tribunal’s decision of the merits of non-precluded claims was reserved. Tecnimont and KT initiated annulment proceedings before the Paris Court of Appeal challenging point (i).
The Annulment Proceedings
Challenging awards in Paris is difficult. A challenge can be mounted on any of the 5 narrow grounds listed in article 1520 of the French Code of Civil Procedure. Rejection of an annulment application confers exequatur under article 1527. Tecnimont and KT chose 4 grounds to challenge point (i) the Partial Award:
- The Tribunal was irregularly constituted,
- The Tribunal failed to fulfil its mandate,
- The requirement for a ‘fair trial’ had not been respected,
- The Partial Award was incompatible with international public policy.
The Court Decision
Arbitrator Bias & Partial Annulment
Tecnimont and KT contended that the Tribunal was irregularly constituted because it transpired that one of the co-arbitrators had breached the duty of disclosure. A Reader may wonder why, in this circumstance, did Tecnimont and KT only seek partial annulment of the Partial Award? Surely, an arbitrator’s bias would taint the entire Award [1]. The Court confirmed that while awards can be partially annulled (as long as the part under scrutiny is severable), irregular constitution of the Tribunal is a ground which affects the entire award. We see an English law parallel with fraudulent obtention of an award as described in Section 68(2)(g) of the Arbitration Act 1996.
The Bifurcation
The Court found that the other 3 grounds raised by Tecnimont and KT were admissible but did not undermine the Partial Award. Tecnimont and KT argued that the Tribunal had failed to fulfill its mandate by issuing a relief that was not sought by either Party. The Court held that the “mandate” in article 1520 referred to the issues in dispute and not the sequence in which the Tribunal would hear them. There was no breach of mandate since all the issues in the bifurcated proceedings fell within the requests already submitted to the Tribunal. The Court also held that the Tribunal had properly exercised its case management powers under the ICC Rules. The Court validated the “unilateral” bifurcation by the Tribunal citing Article 22 (2) of the ICC Rules, 2021:
“In order to ensure effective case management, after consulting with the parties, the arbitral tribunal shall adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties. Such measures may include one or more of the case management techniques described in Appendix IV.“
Tecnimont and KT contended that their right to a fair trial had been violated which constituted a breach of international public policy. In effect, they argued that the Tribunal had divided issues which are indivisible. To determine matters in Phase I, the Tribunal would necessarily need to decide matters allocated to Phase II. The Court’s ruling on this ground is curious. We say this because whilst the Court found that since Tecnimont and KT had received ample opportunity to comment on bifurcation and admissibility of pre-2018 claims, the right to a fair trial had been upheld, the Court appears to have glossed over the substantive point about the intricate relationship between the pre-2018 claims and the admitted claims.
The Paris Court of Appeal fortified the Tribunal’s discretion and case management powers. As long as parties receive the opportunity to comment on proposed solutions, the Tribunal can happily implement the solution even if it does not accord fully with the relief sought by either party. In practical terms, the Court supports the notion that tribunals must play an active role in case management. As a by-product, the Court is reminding parties to be extremely careful about admissibility of grounds for challenge and that partial annulment of awards is possible provided that the challenged parts are severable.
Our thoughts
Tribunals do award relief in terms different to that sought by either party. For example, the Swiss Supreme Court’s Decision in Decision 4A_244/2020 in which a party’s “catch-all” prayer for relief was deemed to be sufficient basis for a tribunal to award amounts in alternative currency (despite not being sought by the successful party). The Swiss Supreme Court was assured that currency conversion had been discussed during the proceedings and the parties’ post-hearing briefs. Equally, Courts recognize that tribunal’s powers are not always framed by party submissions. For example, in Keppel v PWA (decision of 21 October 2025) the Paris Court of Appeal ruled on the annulment of an arbitral award in which the arbitral tribunal had declined jurisdiction [2].
What makes the Tecnimont judgment noteworthy is the delta between the bifurcation, its unilateral invocation by the Tribunal, and the parties’ rights to a fair trial. Arbitral overenthusiasm should not readily prevail at the cost of a party’s right to present her case. Tribunals must not overplay efficient case management.
[1] Total opposed the ground of irregular constitution of the Tribunal on this basis. Total argued that by seeking partial annulment, Tecnimont and KT were acting in contradiction.
[2] The court recalled the principles of French arbitration law regarding consent to arbitration, usually found in an arbitration agreement, which in the matter of international arbitration is not subject to any formal requirements, is independent from the contract in which it is contained (directly or by reference) and the existence and scope of which is assessed without the need to have regard to any state law. The court also looked at the method to be followed when ruling on the annulment of an award on the ground of Article 1520 (1) of the French Code of Civil Procedure (i.e. the case when the arbitral tribunal wrongly upheld or declined jurisdiction) which does not relate to the merits of the case but is a full review of all legal and factual elements that are relevant to establish the existence and scope of the arbitration agreement.
