Available documents (969)
Spain / 17 June 1983 / Spain, Tribunal Supremo (Supreme Court) / Ludmila C. Shipping Company Limited v. Maderas G.L. S.A. / ATS 680/1983
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 17 June 1983 Parties Ludmila C. Shipping Company Limited v. Maderas G.L. S.A. Case number ATS 680/1983 Applicable NYC Provisions I | II | V | V(1) | V(1)(a) | V(1)(b) | V(2) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3967&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSwitzerland / 14 April 1983 / Switzerland, Cour de Justice de Genève / C S.A. v. E Corporation / 187
Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 14 April 1983 Parties C S.A. v. E Corporation Case number 187 Applicable NYC Provisions I | I(3) | II | II(2) | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) Source Original decision obtained from the registry of the Cour de Justice de Genève
Languages English Summary E Corporation, incorporated in Liberia and represented by an agent based in London, and C, allegedly entered into a charter party by the exchange of telexes dated 30 April and 1 May 1981. The telexes contained an arbitration agreement providing for arbitration in London. The arbitration agreement provided that in case a party did not nominate an arbitrator within seven days after the other party had nominated an arbitrator, the chosen arbitrator would serve as the sole arbitrator as if he had been designated by both parties. C alleged that it had made a payment on demurrage but had apparently never returned a signed version of the contract. A dispute arose between the parties. E terminated the contract and initiated arbitration proceedings by nominating an arbitrator. C failed to nominate an arbitrator and as a result, the arbitrator nominated by E acted as the sole arbitrator. C did not appear at the proceedings. On 19 January 1982, the sole arbitrator rendered an award in favor of E, who then sought to enforce the award in Switzerland. E filed, along with its request for enforcement, the original award and a French translation. C opposed enforcement on the grounds that there was no valid arbitration agreement within the meaning of Articles II(2) NYC and IV(1)(b) NYC. It argued that it should have been served notice by diplomatic channels in order to comply with Swiss public policy. On 20 July 1982, the Tribunal de Première Instance of Geneva (Geneva Tribunal of First Instance) granted enforcement of the award. It held that an arbitration agreement in writing includes an exchange of telexes pursuant to Article II(2) NYC, and that no violation of fundamental principles of public policy could be found as C had the opportunity to nominate an arbitrator but had not done so. C appealed, arguing that the award violated public policy under Article V(2)(b) NYC since it had only been notified of the arbitration proceedings by a simple letter. The Cour de Justice de Genève (Court of Justice of Geneva) stated that the Tribunal de Première Instance of Geneva did not examine the substantial validity of the arbitration agreement and remanded the case. The Cour de Justice de Genève held that the NYC governed the issue of enforcement since the award was rendered in London. It considered that the reservation made by Switzerland pursuant to Article I(3) NYC did not apply since Switzerland and the United Kingdom were both signatories to the NYC. Concerning C’s allegation that no valid arbitration agreement existed, the Cour de Justice de Genève held that, notwithstanding the principle of Kompetenz-Kompetenz, the enforcing court could examine the validity of the arbitration agreement pursuant to Articles II(2) NYC and IV(1)(b) NYC. It further considered that if the enforcing Court finds that the arbitration agreement does not conform to Article IV(1)(b), it cannot examine the validity of the award. As the Cour de Justice of Geneva noted, the burden shifts when the enforcing court considers the arbitration agreement to be valid pursuant to Article II(2) NYC: then, the party opposing enforcement bears the burden of proving a ground for non-enforcement under Article V(1)(a) NYC. In the present case, the Cour de Justice de Genève considered that the arbitration agreement contained in the telexes was valid pursuant to Article II(2) NYC. However, it noted that the Tribunal de Première instance had not analyzed C’s arguments that it was not a party to the arbitration agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=930&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFUnited States / 04 August 1982 / U.S. Court of Appeals, First Circuit / Ledee (Puerto Rico) v. Ceramiche Ragno (Italy) / 82-1057
Country United States Court United States, U.S. Court of Appeals, First Circuit Date 04 August 1982 Parties Ledee (Puerto Rico) v. Ceramiche Ragno (Italy) Case number 82-1057 Applicable NYC Provisions I | II | I(1) | I(3) | II(2) | II(3) Source 684 F.2d 184 Languages English Summary The Defendants, Italian corporations, and the Plaintiffs, Puerto Rican corporations entered into a distributorship agreement. The distributorship agreement contained an arbitration clause providing for arbitration before an arbitrator selected by the President of the Tribunal in Modena. In March 1981, the Plaintiffs brought suit in the Superior Court of Puerto Rico. The Defendants removed the case to the United States District Court for the District of Puerto Rico, which ordered arbitration in accordance with the arbitration agreement. The Plaintiffs appealed. The United States Court of Appeals for the First Circuit affirmed the District Court’s judgment and ordered arbitration. In so holding the Court found that there was an arbitration agreement in writing as required by Article II(2) NYC; that the agreement provided for arbitration in the territory of a signatory of the NYC in accordance with the terms of Article I(1) NYC; and that the agreement arose out of a legal relationship, which was considered commercial in accordance with Article I(3). It further held that nothing in the present case suggested that the arbitration agreement was “null and void, inoperative or incapable of being performed” within the terms of Article II(3) NYC, and referred the parties to arbitration. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=687&opac_view=6 Attachment (1)
Original PendingAdobe Acrobat PDFSpain / 13 July 1982 / Spain, Tribunal Supremo (Supreme Court) / Billerud Uddeholm Aktiebolag v. Mr. Juan Miguel / STS 1089/1982
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 13 July 1982 Parties Billerud Uddeholm Aktiebolag v. Mr. Juan Miguel Case number STS 1089/1982 Applicable NYC Provisions I | II | II(3) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4641&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 04 June 1982 / Spain, Tribunal Supremo (Supreme Court) / V. Tholanders EFTF v. Española Naviera Lucentum, S.A. / ATS 3/1982
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 04 June 1982 Parties V. Tholanders EFTF v. Española Naviera Lucentum, S.A. Case number ATS 3/1982 Applicable NYC Provisions II | IV | IV(1) | IV(1)(a) | V | V(1) | V(1)(a) | V(1)(d) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4640&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 04 May 1982 / India, High Court of Gujarat / Union of India and ors v. Lief Hoegh & Co and ors
Country India Court India, High Court of Gujarat Date 04 May 1982 Parties Union of India and ors v. Lief Hoegh & Co and ors Applicable NYC Provisions I | II | XIV Source AIR 1983 Guj 34; (1983) 1 GLR 292 | http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary Union of India (“Union”) entered into a charterparty with Lief Hoegh (“Lief”), which provided for arbitration under the UK Arbitration Act 1950 in London. A dispute arose and Union launched legal action against Lief before the High Court of Gujarat. Lief applied to have the action stayed in favour of arbitration, pursuant to Section 3 of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) (mirroring Article II(3) NYC). The High Court of Gujarat upheld Lief’s application, ordering a stay of the legal action in favour of arbitration. The High Court held that Section 3 of the 1961 Act applied when four requirements were satisfied: (i) there was an agreement to which Article II NYC applied; (ii) a person who was party to such an agreement had initiated legal action; (iii) the legal action pertained to a matter which fell within the scope of the arbitration agreement; and, (iv) the other party had taken no step in the legal action to indicate that he had submitted to the jurisdiction of the court. The Court reasoned that, once these requirements were satisfied, Section 3 of the 1961 Act mandated that it refer the matter to arbitration, provided that the agreement was not void, inoperative or incapable of being performed. The Court found the four conditions to be met on the facts. It then turned to an alternative argument advanced by Union, namely that the 1961 Act was wholly inapplicable to the present case as the charterparty was not a “commercial relationship” as understood in Section 2 of the 1961 Act (incorporating, in modified language, Articles I and II NYC). The Court rejected that argument too, holding that the term “commercial” is “a word of the largest import and takes in its sweep all the business and trade transactions in any of their forms”. Similarly unconvincing, the Court reasoned, was Union’s reliance on Article XIV NYC. The Court considered that there was no circumstance in which India would be applying the NYC in manner more expansive than that applied by other state parties to the NYC. After referring to Article I NYC, the High Court stressed that “the only limitation [to the application of NYC] is that [the dispute] must arise out of a contract which is commercial in nature”. The High Court concluded that granting a stay of the legal action in the present case would not amount to a denial of the sovereignty of the Indian government. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1376&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 24 March 1982 / Spain, Tribunal Supremo (Supreme Court) / Comineo France S.A. v. Soquiber S.L. / ATS 479/1982
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 24 March 1982 Parties Comineo France S.A. v. Soquiber S.L. Case number ATS 479/1982 Applicable NYC Provisions I | I(2) | II | II(1) | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | V(1) | V(1)(b) | V(1)(e) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3963&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 08 October 1981 / Spain, Tribunal Supremo (Supreme Court) / Inter-Continental de Café (International) S.A. v. Doña Edurne / ATS 457/1981
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 08 October 1981 Parties Inter-Continental de Café (International) S.A. v. Doña Edurne Case number ATS 457/1981 Applicable NYC Provisions I | II | V | V(2) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3961&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 09 December 1980 / Spain, Tribunal Supremo (Supreme Court) / Harborn v. José Luis Larabeiti, S.A. / ATS 490/1980
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 09 December 1980 Parties Harborn v. José Luis Larabeiti, S.A. Case number ATS 490/1980 Applicable NYC Provisions II | II(1) | II(2) | IV | IV(2) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4638&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Obergericht des Kantons Zürich Date 08 December 1980 Case number II.ZK.Nr. 8 A/80 Applicable NYC Provisions II | IV | IV(2) | V | V(1) | V(1)(e) Source Original decision obtained from the registry of the Obergericht des Kantons Zürich
Languages English Summary The parties concluded several charter parties all of which contained an arbitration clause providing for arbitration in New York City, under New York law, and stating that any arbitral award rendered under the agreement was to be final and binding on the parties in any country. The Respondent obtained a favorable award against the Applicant, which, upon the Respondent’s application, the Bezirksgericht (Regional Court) Zurich declared to be enforceable. The Applicant appealed to the Obergericht (Higher Cantonal Court) Zurich contending that the arbitral award had not become binding since, under Section 7510 of the applicable New York Civil Practice Law and Rules (“CPLR”), it had to have been confirmed by a New York court within one year of having been served on the parties and that such time limit had now passed. The Respondent argued that the NYC only required that the award had become binding, but not that it could be enforced under the CPLR. The Respondent also argued that the report of the legal expert submitted by the Applicant in support of the alleged confirmation requirement should be rejected since it was not accompanied by a certified translation. The Obergericht dismissed the appeal. It noted that the Respondent had followed its interim order to provide a certification by the County Clerk of the State of New York that the notary public who had certified the copy of the award was competent to do so, along with a certification of the County Clerk’s signature by the Swiss Diplomatic representation in New York. On that basis, the Obergericht concluded that the formal requirements under Article IV and II NYC were fulfilled. The Obergericht rejected the Respondent’s request to exclude the Applicant’s expert report for lack of a certified translation reasoning that, unlike Article IV(2) NYC, Article V NYC did not require evidence against the enforceability of arbitral awards to be submitted in the form of a certified translation, rather, it was up to the court to obtain such translations if they were needed. Regarding the Applicant’s objection under Article V(1)(e) NYC, the Obergericht found that the award was to be considered binding even though it had not been confirmed by the competent court in New York since the “confirmation” under Section 7510 CPLR only had the meaning of a declaration of enforceability rather than being a decision about the arbitral award’s binding effect. The Bundesgericht held that in proceedings under the NYC for enforcement of a New York award in another contracting state of the NYC, the confirmation proceedings under the CPLR were effectively substituted by Article IV NYC since the enforcement creditor would otherwise be forced to pursue a double exequatur. The Obergericht concluded that an award was not binding under the NYC only in the event that the losing party had sought vacatur or modification of the award under Section 7511 CPLR within the applicable time limit, or if the competent New York court had indeed annulled or modified the award. The Obergericht clarified that a party’s right to request vacatur or modification of the award under the CPLR was available even in relation to arbitration agreements which state that the arbitral award shall be “finally effective,” since the right to such proceedings could not be waived by the parties. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1425&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFFrance / 05 December 1980 / France, Cour d'appel de Nancy / Les Trefileries & Ateliers de Commercy (T.A.C.) v. Société Philipp Brothers France et Société Derby & Co Limited / 753/80
Country France Court France, Cour d'appel de Nancy (Court of Appeal of Nancy) Date 05 December 1980 Parties Les Trefileries & Ateliers de Commercy (T.A.C.) v. Société Philipp Brothers France et Société Derby & Co Limited Case number 753/80 Applicable NYC Provisions II | II(3) | VII | VII(2) Source Original decision obtained from the registry of the Cour d’appel de Nancy
Summary A French company (Les Trefileries & Ateliers de Commercy - TAC) ordered 900 tons of RUTIL from another French company (Philipp Brothers France) by telex on 12 March 1975. On 21 March 1975, Philipp Brothers France sent TAC a sales contract established by Derby & Co Ltd for 900 tons of RUTIL, which was then signed by TAC on 2 April 1975. The contract was concluded under the General Conditions of Derby & Co Ltd which contained an arbitration agreement providing for arbitration in London. A dispute arose and TAC sued both Philipp Brothers France and Derby & Co Ltd before French Courts. The Tribunal de Commerce de Bar Le Duc (Commercial Court of Bar Le Duc) held that the NYC did not apply in the case at hand given that it was ratified by the United Kingdom on 24 September 1975 (while noting that the sales contract was concluded on 2 April 1975) and therefore the award, which had not been declared enforceable in France, had no effect under French law. Nevertheless, it found that TAC's claims were groundless. TAC appealed this decision. The Cour d'appel de Nancy (Nancy Court of Appeal) reversed the decision and found that TAC's action was inadmissible. It first noted that the sales contract had been signed and accepted by TAC and therefore the sales contract was binding upon TAC and Derby & Co Ltd, which included the arbitration agreement. It noted further that the Arbitral Chamber of London had rendered an award on 13 December 1977. It then reasoned that while the NYC replaced the Geneva Protocol on Arbitration Clauses, Article VII(2) NYC provides that the Geneva Protocol shall cease to have effect between the Contracting States on their becoming bound by the NYC. It noted that at the time of the signature of the sales contract, the United Kingdom was still bound by the provisions of the Geneva Protocol and that pursuant to Article I of the Geneva Protocol, the arbitration agreement was valid. Given that the United Kingdom had ratified the NYC on 24 September 1975 and that the award was rendered on 13 December 1977, the Cour d'appel de Nancy held that the arbitral award was applicable to the French party, on the basis of reciprocity. It ruled further that pursuant to Article II(3) NYC, the Tribunal de Commerce de Bar Le Duc should have referred the parties to arbitration. In conclusion, it held that the arbitral award was res judicata and that TAC's claims were inadmissible pursuant to Article 122 of the Code of Civil Procedure. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=114&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFUnited States / 17 July 1978 / U.S. Court of Appeals, Third Circuit / Becker Autoradio U.S.A., Inc. (US) v. Becker Autoradiowerk GmbH (West Germany) / 77-2566, 77-2567
Country United States Court United States, U.S. Court of Appeals, Third Circuit Date 17 July 1978 Parties Becker Autoradio U.S.A., Inc. (US) v. Becker Autoradiowerk GmbH (West Germany) Case number 77-2566, 77-2567 Applicable NYC Provisions II | II(3) Source 585 F.2d 39 Languages English Summary A dispute arose between the Defendant, Becker Autoradiowerk GmbH (“BAW”), a West German manufacturer of automobile radios and accessories, and the Plaintiff, Becker Autoradio U.S.A., Inc. (“Becker U.S.A.”), a Pennsylvania corporation and BAW's exclusive American distributor. The parties concluded both an oral agreement and a written distribution agreement, which contained an arbitration clause providing for arbitration in Germany in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”). The Plaintiff brought an action in United States federal district court and sued the Defendant for a breach of the oral agreement, arguing that it was a separate issue from the terms of the written contract and therefore not covered by the arbitration clause. The Defendant moved to stay the judicial proceedings in the District Court and to compel arbitration. The District Court denied the Defendant’s motion and the Defendant appealed. The Court of Appeals for the Third Circuit reversed the district court’s decision and ordered that the dispute be submitted to arbitration in accordance with the parties’ agreement. In so holding, the Court held that according to Article II(3) NYC or Section 3 of the Federal Arbitration Act the question of whether, in contracts involving commerce, there is an agreement to arbitrate an issue or dispute upon which suit has been brought is governed by federal law. The Court concluded that the dispute was arbitrable under the terms of the written agreement and referred the parties to arbitration in accordance with their agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=672&opac_view=6 Attachment (1)
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Country Germany Court Germany, Landgericht Zweibrücken Date 11 January 1978 Case number 6.0 H 1/77 Applicable NYC Provisions II | II(2) Source Original decision obtained from the registry of the Landgericht Zweibrücken Languages English Summary The parties concluded a sales contract providing for arbitration before the Netherlands Hide and Leather Exchanges Association in Rotterdam. The contract was concluded on the basis of a sales confirmation that had been sent by the Seller, and signed and returned by the Buyer. Following non-payment by the Buyer, the Seller initiated arbitration proceedings in Rotterdam, in which the Buyer refused to take part for the alleged lack of a valid arbitration agreement. The Seller obtained a favourable award and sought enforcement in Germany. The Landgericht (Regional Court) Zweibrücken granted enforcement, holding that contrary to the Buyer’s allegation, the parties had concluded a valid arbitration agreement that was contained in a sales confirmation which constituted an “agreement in writing” within the meaning of Article II NYC. The Landgericht further explained that although the document was signed only by the Buyer, it was preceded by an exchange of letters that amounted to a written agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=925&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFUnited States / 26 September 1977 / U.S. District Court, Northern District of California / Carolina Power & Light Co. v. Uranex / C-77-0123
Country United States Court United States, U.S. District Court, Northern District of California Date 26 September 1977 Parties Carolina Power & Light Co. v. Uranex Case number C-77-0123 Applicable NYC Provisions II | II(2) Source 451 F.Supp. 1044 Languages English Summary Carolina Power & Light Company (“CP&L”), a North Carolina public utility company, entered into a contract with Uranex, a French groupement d'interet economique, for the delivery of uranium concentrates to CP&L. The contract provided for arbitration in New York. The arbitration proceedings had already commenced in New York when CP&L appealed to the United States District Court for the Northern District of California and made an ex parte attachment of a debt owed by a third party to Uranex. Uranex sought to have the attachment quashed, arguing that it would be inconsistent with the NYC for the court to maintain the attachment pending the arbitration. The Court dismissed Uranex’s argument and held that it would not be contrary to the NYC for the court to maintain the attachment pending arbitration. In so holding, it noted that pursuant to Article II(2) NYC and Section 206 of the Federal Arbitration Act, which implements Article II(2) NYC, nothing in the NYC bars pre-award attachment, and therefore it is allowable insofar as it is permissible under state or federal law. The Court concluded that there is no indication in either the text or the apparent policies of the NYC that prejudgment attachment was precluded. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=514&opac_view=6 Attachment (1)
Original PendingAdobe Acrobat PDFIndia / 04 April 1977 / India, High Court of Bombay / Indian Organic Chemicals Ltd v. Chemtex Fibres Inc and ors
Country India Court India, High Court of Bombay Date 04 April 1977 Parties Indian Organic Chemicals Ltd v. Chemtex Fibres Inc and ors Applicable NYC Provisions I | II Source AIR 1978 Bom 106; (1979) 81 BOMLR 49 | http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary Chemtex Fibres Inc (“Chemtex”), together with its two subsidiaries – the second and third defendant – entered into a contract with Indian Organic Chemicals Ltd (“Indian Chemicals”), guaranteeing the performance of two other contracts which the second and third defendant had entered into with Indian Chemicals. The guarantee provided for arbitration under the auspices of the International Chamber of Commerce (“ICC”) in London. The contract entered into by the second defendant and Indian Chemicals was for the supply of machinery, equipment and technical information for the installations for a polyester plant and provided for arbitration under the ICC in London as well. The contract entered into by the third defendant and Indian Chemicals was for the supply of machinery, equipment and technical information required for the implementation of the project and provided for arbitration in India. A dispute arose and Indian Chemicals sued Chemtex and the second and third defendant before the High Court of Bombay. The three defendants sought to have the proceeding stayed in favour or arbitration pursuant to Section 3 of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) (mirroring Article II(3) NYC). The High Court of Bombay rejected the defendants’ application, refusing to order a stay of the legal proceeding before it. The High Court remarked that the 1961 Act had been implemented to give effect to the NYC and had as its purpose the speedy settlement of disputes through arbitration. The Court referred to Section 2 of the 1961 Act (incorporating, in modified language, Articles I and II NYC), which it read in tandem with Articles I and II NYC. According to the Court, Section 2 of the 1961 Act applies when four conditions are satisfied: (i) the difference is out of a relationship considered as “commercial under the law in force in India”; (ii) the “foreign award” was made on or after 11 October 1960; (iii) the award is made in pursuance of an agreement in writing to which the NYC applies; and, (iv) the award is made in a territory that the Central Government of India has notified as also applying the NYC. Turning to Section 3 of the 1961 Act, the High Court considered that it applies when (i) there is an agreement to which Article II NYC applies; (ii) a person party to such an agreement, or a person claiming through him, commences a legal proceeding before a court against the other party to the agreement; (iii) the dispute falls within the scope of the legal proceeding; and, (iv) the other party has not “filed any written statement or has not taken any other step in the proceeding” before making the application to stay. Once these conditions are satisfied, the Court noted, a court has no discretion but to stay the legal proceeding before it, unless the agreement is null and void, inoperative or incapable of being performed. Applying the facts of the case, the High Court considered the three contracts to be “inextricably linked” and “commercial” in nature. In making the latter point, the Court stipulated that the term “commercial” must be given a liberal construction. Nonetheless, the Court stressed, characterising a contract as “commercial” was not suffice for Section 2 of the 1961 Act to apply: according to the Court, the relationship must be considered commercial “under the law in force in India”. This language, the Court reasoned, requires that it be “established that [the relationship] is commercial by virtue of a provision of law or an operative legal principle in force in India”. Further to that, the High Court held that Section 3 could not apply as it only made reference to a person commencing legal action when that person is a party to “an agreement”. This, the Court reasoned, indicated that Section 3 of the 1961 Act has no application in a situation where there is a “plurality of agreements [which] converge on disputes and differences which arise out of a single transaction or series of transactions”. Commenting, obiter, on the other conditions of Section 3, the Court found that the arbitration agreements were capable of being performed and that the dispute brought before it fell within the scope of the arbitration agreement in the guarantee. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1373&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 12 February 1976 Case number III ZR 42/74 Applicable NYC Provisions VII | V | II | VII(1) | V(1)(c) | II(2) | II(1) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary In relation to a dispute regarding a sale purchase agreement for lard, the Seller obtained a favourable award from the Arbitration Commission of the Chamber of Commerce of the Romanian People’s Republic. The Buyer had refused to participate in the arbitration proceedings, arguing that the 6-month time limitation contained in the arbitration clause had lapsed. The Seller subsequently sought enforcement of its award in Germany, but the Landgericht (Regional Court) Frankfurt refused enforcement. The Oberlandesgericht (Higher Regional Court) Frankfurt confirmed the refusal and annulled the award, finding that the arbitrators had breached the terms of the arbitration agreement regarding the 6-month statute of limitations (giving rise to a non-enforcement ground under Article V(1)(c) NYC) and that the arbitral tribunal’s lack of jurisdiction constituted an “extreme case” justifying both refusal of enforcement and annulment. The Bundesgerichtshof (Federal Supreme Court) did not agree with the Oberlandesgericht’s decision on enforcement and remanded the case back to the Oberlandesgericht for reconsideration. It also reversed the annulment of the award, holding that an award falling under the NYC i.e. made in the territory of another Contracting State, may be annulled by a German court only if the award had been made pursuant to German law (which was not the case here). The Bundesgerichtshof held that the parties had validly concluded an arbitration agreement in writing as required by Articles II(1) and II(2) NYC. Although the arbitration clause was only contained in the General Conditions for the Sale and Delivery, it was inserted by the parties’ representatives in the signed contract itself, or at least attached to it as an exhibit. However, in relation to the scope of the arbitration agreement and the six-month time limit, the Bundesgerichtshof held that the arbitration clause was ambiguous and that the jurisdiction of the arbitral tribunal after the six-month period was not explicitly excluded. The Bundesgerichtshof held that the facts discussed by the Oberlandesgericht did not allow for the conclusion that the arbitral tribunal had arbitrarily – and without any basis in the contractual provisions – assumed jurisdiction over the dispute. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=926&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. Supreme Court Date 17 June 1974 Parties Scherk v. Alberto-Culver Company Case number 73-781 Applicable NYC Provisions II | II(1) Source 417 U.S. 506 Languages English Summary Scherk, a German citizen, and Alberto-Culver, a US company, entered into a contract for the transfer of the ownership of Scherk's enterprises to Alberto-Culver, along with all rights held by these enterprises to trademarks in cosmetic goods. The contract contained an arbitration agreement which provided for International Chamber of Commerce (“ICC”) arbitration in Paris. Alberto-Culver commenced an action for damages and other relief in Federal District Court in Illinois. In response, Scherk, filed a motion inter alia to stay the action pending arbitration in Paris pursuant to the agreement of the parties. The District Court granted a preliminary order enjoining Scherk from proceeding with arbitration. The United States Court of Appeals for the Seventh Circuit affirmed. Scherk filed a petition for a writ of certiorari before the United States Supreme Court. The Supreme Court reversed the decision of the Court of Appeals, found that the arbitration agreement was enforceable and remanded the case to lower courts. In so holding, the Court found that the United States’ adoption and ratification of the NYC and its Article II(1) NYC provide strong evidence of congressional policy to enforce international arbitration agreements. It further held that the agreement of the parties to arbitrate any dispute arising out of their international commercial transaction was to be respected and enforced by the federal courts in accordance with the explicit provisions of the Federal Arbitration Act. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=654&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 13 March 1973 Case number 8 U 129/72 Applicable NYC Provisions V | II | V(1)(a) | II(3) Summary A German company and a Dutch company concluded a contract containing a clause calling for the resolution of disputes that could not be amicably settled by an arbitral tribunal of the German-Dutch Chamber of Commerce. The clause specified that if the decision was not acceptable to either Party, an ordinary court of law, to be designated by the Claimant, would be competent. The German Party brought an action before the Landgericht (Regional Court) Heidelberg, which held the Dutch party (who did not appear during the proceedings) liable. The Dutch party took recourse before the same Court arguing that the dispute should first have been submitted to arbitration. The Oberlandesgericht Karlsruhe (Higher Regional Court) confirmed the decision of the Landgericht which denied the stay of proceedings. The Landgericht had considered that under Article V(1)(a) NYC, the Parties have the freedom to choose the law applicable to the arbitration agreement and, absent any indication of applicable law by the Parties, the law of the country in which the award "will be made" applies. In the present case, the Parties did not designate any law, nor could the law of the country in which the award was to be made be determined because the they had not provided for a place of arbitration. Pursuant to the Rules of the German-Dutch Chamber of Commerce, the arbitration could take place either in Germany or in the Netherlands to the effect that either German or Dutch law would be applicable. Thus, the Court concluded that the validity had to be assessed under both legal systems. The Court held that under both German and Dutch law an arbitration agreement is valid only if it is in accordance with the will of the parties to have the arbitral tribunal decide their dispute in lieu of a state court. According to the Court, the same idea that an arbitration agreement is valid only if it excludes ordinary court proceedings underlies Article II(3) NYC. As a result, since the present clause made it possible to commence a court action, there was no valid arbitration agreement, but rather an agreement to attempt to conciliate. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=198&opac_view=6 Attachment (1)
Original UnavailableAdobe Acrobat PDFFrance / 09 October 1970 / France, Tribunal de Grande Instance de Strasbourg / Animalfeeds International Company v. Société Becker
Country France Court France, Tribunal de Grande Instance de Strasbourg (Court of First Instance of Strasbourg) Date 09 October 1970 Parties Animalfeeds International Company v. Société Becker Applicable NYC Provisions II | V | IV Summary Various arbitral awards were rendered in 1967 in Hamburg in favor of Animalfeeds International. An application for recognition and enforcement of said awards was filed before the Tribunal de Grande Instance de Strasbourg (First Instance Court of Strasbourg). The losing party (A. Becker et Cie) objected to the enforcement of the awards by arguing that the application was not admissible since Animalfeeds failed to disclose the documents required by Article IV NYC, i.e. the duly authenticated original award or a duly certified copy and the original agreement under which the parties undertook to submit to arbitration their dispute or a duly certified copy thereof. It contended further that the Tribunal de Grande Instance de Strasbourg should decline jurisdiction to hear this matter since the arbitral tribunal had ruled without a signed arbitration agreement. Lastly, it claimed that the arbitral awards were not res judicata in the country in which they were rendered. The Tribunal de Grande Instance de Strasbourg allowed enforcement of the arbitral awards in France. It noted that that Animalfeeds had produced all of the documents required by Articles II and IV NYC. It then held that the arbitral tribunal had jurisdiction to hear the dispute. As to the fact that the arbitral awards are not res judicata in Germany, the Tribunal de Grande Instance de Strasbourg reasoned that the NYC does not require that the award be declared enforceable in both the country where it was made and in the country where such award is sought to be relied upon, but simply provides that the award should be binding on the parties, which was the case here. It added that the awards were not contrary to French public policy. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=109&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 25 May 1970 Case number VII ZR 157/68 Applicable NYC Provisions II | II(2) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary A German Buyer sent a purchase order to the Seller, an Austrian spinning and weaving factory, referring to earlier phone conversations and requesting delivery of certain products. The Seller confirmed the orders by letters containing the Seller’s terms and conditions, which provided for arbitration before the Court of Arbitration of the Vienna Commodity Exchange. The Buyer did not reply or otherwise comment on the letters. Subsequently a dispute arose and the Seller initiated arbitration proceedings, obtaining a favorable award. The Seller sought enforcement before a first instance court in Germany, which was granted. The Buyer appealed the decision to the Oberlandesgericht (Higher Regional Court) Cologne, but was unsuccessful. The Buyer then appealed to the Bundesgerichtshof (Federal Supreme Court), seeking a declaration that the arbitral award could not be recognized in Germany. The Bundesgerichtshof rejected the Buyer’s appeal and upheld the decision of the lower courts granting enforcement. It found that pursuant to Section 1044 of the German Civil Procedure Code and Article 12(1) of the German-Austrian Agreement on Civil and Commercial Matters of June 6, 1959, enforcement was subject to the NYC and the European Convention on International Commercial Arbitration of April 21, 1961 (ECICA). The Bundesgerichtshof concluded that it was therefore necessary, as per Article II(2) NYC and Art. 1(2)(a) of the ECICA, that the arbitral award be based on an arbitration agreement in writing. However, it noted that Article 1(2)(a) of the ECICA, which had precedence over Article II(2) NYC as the more recent of the two provisions, provided that “in relations between States whose laws do not require that an arbitration agreement be made in writing, any arbitration agreement concluded in the form authorized by [such] laws” was sufficient. The Bundesgerichtshof found that under certain conditions German and Austrian law accepted arbitration agreements which were not in writing. It found that it needed to assess the arbitration agreement under German law and stated that the letters from the Seller to the Buyer, containing the Seller’s terms and conditions, including an arbitration clause, qualified a commercial letter of confirmation (kaufmännisches Bestätigungsschreiben). It held that since the Buyer had not raised any objections to the letters, and to the arbitration clause contained therein, the arbitration agreement had become binding upon the Buyer. In addition, it held that since both parties were merchants, with the arbitration agreement being a commercial matter between them, the arbitration agreement was not required to be in written form under Section 1027 (2) of the German Civil Procedure Code. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1337&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 28 October 1969 / India, Supreme Court / VO Tractor Export, Moscow v. MS Tarapore & Company and anor / 1971 AIR 1; 1970 SCR (3) 53; 1969 SCC (3) 562
Country India Court India, Supreme Court Date 28 October 1969 Parties VO Tractor Export, Moscow v. MS Tarapore & Company and anor Case number 1971 AIR 1; 1970 SCR (3) 53; 1969 SCC (3) 562 Applicable NYC Provisions II Source http://judis.nic.in (website of the decisions of the Supreme Court of India as well as several High Courts)
Languages English Summary VO Tractor Export, Moscow (“Tractor Export”) entered into a contract with MS Tarapore & Company (“Tarapore”) which provided for arbitration in Moscow, under the auspices of the USSR Chamber of Commerce. A dispute arose and Tarapore commenced legal action against Tractor Export before the High Court of Madras. Tractor Export initiated an arbitration proceeding according to the terms of the arbitration agreement and also filed an application to stay the legal action before the High Court of Madras, pursuant to Section 3 of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”). The High Court of Madras dismissed Tractor Export’s application. Tarapore appealed the decision of the High Court, arguing that Section 3 of the 1961 Act could be invoked by a party to an arbitration agreement only if that party had submitted the dispute to the arbitration agreement before the commencement of the legal action. The Supreme Court allowed the appeal of Tarapore, holding that the action commenced by Tarapore could not be stayed because Section 3 of the 1961 Act required a submission of the dispute to the arbitral tribunal before a legal proceeding could be stayed in order to be referred to arbitration. In reaching this conclusion, the Supreme Court noted that the 1961 Act was passed to give effect to the NYC. Referring to Article II NYC, the Court remarked that it “imposes a duty on the court of a contracting state when seized of such an action to refer the parties to arbitration”. The Supreme Court held that Section 3 of the 1961 Act must be read in consonance with Article II NYC. Ramaswami J dissented from the majority’s judgment, holding that Article II NYC imposed a duty to a court to refer a matter to arbitration when there is an arbitration agreement. According to Ramaswami J, any doubt as to the meaning of the term “submission” in Section 3 should be resolved in favour of a reading which does not restrict the obligation under Article II NYC. The judge reasoned that a different interpretation would be contrary to the avowed object of the 1961 Act, which was to give effect to the NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1386&opac_view=6 Attachment (1)
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Country Germany Court Germany, Landgericht Bremen Date 08 June 1967 Case number 11-OH 11/1966 Applicable NYC Provisions II | V | II(2) | V(1)(a) Source Original decision obtained from the registry of the Landgericht Bremen Languages English Summary In relation to a sales contract, the Seller sent a confirmation letter to the Buyer, which contained an arbitration clause providing for arbitration at the Court of Arbitration of the International Wool Textile Organization (IWTO) in Paris. The Buyer, in turn, sent its own confirmation letter to the Seller referring to the application of the conditions of the Association of Wool Commerce of Bremen. After a dispute arose, the Seller initiated arbitration proceedings with the Court of Arbitration of the IWTO and obtained a favorable award. The Buyer had refused to participate in the proceedings, contending that the parties had agreed to arbitration under the rules of the Association of Wool Commerce of Bremen rather than those of the IWTO. The Seller sought enforcement of the award in Germany. The Landgericht (Regional Court) Bremen declared the award enforceable finding that the award was binding on the parties as the law of the seat excluded any possibility of appeal. Further, the Landgericht held that enforcement could not be refused under Article V(1)(a) NYC since the parties had exchanged letters after the dispute arose concurring on the competence of the arbitral institution which had eventually issued the award. Moreover, the Landgericht held that the conclusion of the arbitration agreement by way of an exchange of letters fulfilled the form requirements under Article II(2) NYC. Finally, the Landgericht also found that the award did not violate German public policy under Section 1044(2) No. 2 German Civil Procedure Code and that the Buyer’s right to be heard under Section 1044(2) No. 4 German Civil Procedure Code had also not been violated since it had been the Buyer’s own decision not to take part in the proceedings. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=916&opac_view=6 Attachment (1)
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Country Germany Court Germany, Landgericht Bremen Date 16 December 1965 Case number 12-OH 2/1965 Applicable NYC Provisions VII | II | VII(2) | VII(1) | II(2) Source Original decision obtained from the registry of the Landgericht Bremen Languages English Summary The Buyer imported honey from the Seller. Following a request from the Buyer, the Seller shipped certain quantities of honey and asked the Buyer to sign a contract calling for the resolution of all disputes in accordance with the Arbitration Rules of the Dutch Association for the Trade in Tropical Fruit and Spices. The Buyer did not sign the contract form, and informed the Seller that it would refuse the goods and not make the payment. The Seller obtained a favourable arbitral award against the Buyer in Rotterdam and sought enforcement in Germany. The Landgericht (Regional Court) Bremen denied the Seller’s request to declare the award enforceable under Article V(1)(a) NYC for lack of an arbitration agreement in writing. The Landgericht noted that Article II(2) NYC required the arbitration agreement to take the form of a clause in a contract or otherwise be signed by the parties or contained in an exchange of letters or telegrams. It considered that the Seller’s form contract containing the arbitration agreement, however, had not been accepted by the Buyer. The Landgericht further held that pursuant to Article VII (2) NYC, the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 did not apply because that treaty had ceased to have legal effect for both Germany and the Netherlands from when the NYC became binding on both countries. The Landgericht, however, found that German procedural law could apply in accordance with Article VII(1) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=917&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF11 th meeting [E/CONF.26/SR.11 - E/2704/Rev.1, E/2822 and Add.1-6, E/CONF.26/2, 6/3 and Add.1, 26/4, 26/7, E/CONF.26/L.6-L.31]- 12/09/1958
Comments Meeting held at Headquarters, New York, on Tuesday, 27 May 1958, at 2.45 p.m Date 12/09/1958 Classification (first level) C. Summary Records of the United Nations Conference on International Commercial Arbitration, New York, 20 May - 10 June 1958 Applicable NYC Provisions II | III | IV | V | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(a) | V(2)(b) | VI Language(s) French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3403&opac_view=6 Attachment (1)
Read DocumentAdobe Acrobat PDF12 th meeting [E/CONF.26/SR.12 - E/2704 and Corr.1, E/CONF.26/7, E/CONF.26/L.8 and Corr.1, L.15/Rev.1, L.16, L.19, L.22, L.31 to L.34]- 12/09/1958
Comments Meeting held at Headquarters, New York, on Wednesday, 28 May 1958, at 11.45 a.m Date 12/09/1958 Classification (first level) C. Summary Records of the United Nations Conference on International Commercial Arbitration, New York, 20 May - 10 June 1958 Applicable NYC Provisions II | IV | V | V(1)(c) | V(1)(e) | VI Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3404&opac_view=6 Attachment (1)
Read DocumentAdobe Acrobat PDF13 th meeting [E/CONF.26/SR.13 - E/2704 and Corr. 1, E/2822 and Add.1 to 6, E/CONF.26/2, 26/3 and Add.1, 26/4, 26/7, E/CONF.26/L.8 and Corr.1, L.15/Rev.1, L.16, L.17, L.22 to L.25, L.30 to L.36]- 12/09/1958
Comments Meeting held at Headquarters, New York, on Wednesday, 28 May 1958, at 2.45 p.m Date 12/09/1958 Classification (first level) C. Summary Records of the United Nations Conference on International Commercial Arbitration, New York, 20 May - 10 June 1958 Applicable NYC Provisions II | IV | V | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(a) | V(2)(b) | VI Language(s) French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3405&opac_view=6 Attachment (1)
Read DocumentAdobe Acrobat PDF14 th meeting [E/CONF.26/SR.14 - E/2704 and Corr.1, E/2822, E/CONF.26/L.17, L.31, L.33/Rev.1, L.34. L.38 and L.40]- 12/09/1958
Comments Meeting held at Headquarters, New York, on Thursday, 29 May 1958, at 11.45 a.m Date 12/09/1958 Classification (first level) C. Summary Records of the United Nations Conference on International Commercial Arbitration, New York, 20 May - 10 June 1958 Applicable NYC Provisions II | IV | V | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(a) | V(2)(b) | VI Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3406&opac_view=6 Attachment (1)
Read DocumentAdobe Acrobat PDF17 th meeting [E/CONF.26/SR.17 - E/2704 and Corr.1, E/CONF.26/L.31, L.37/Rev.1, L.43 and L.45]- 12/09/1958
Comments Meeting held at Headquarters, New York, on Tuesday, 3 June 1958, at 2.45 p.m Date 12/09/1958 Classification (first level) C. Summary Records of the United Nations Conference on International Commercial Arbitration, New York, 20 May - 10 June 1958 Applicable NYC Provisions II | IV | V | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(a) | V(2)(b) | VI Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3409&opac_view=6 Attachment (1)
Read DocumentAdobe Acrobat PDF21 st meeting [E/CONF.26/SR.21 - E/2704 and Corr.1, E/2822 and Add.1 to 6, E/CONF.26/2, 3 and Add.1, E/CONF.26/4, 7, E/CONF.26/L.16, L.28, L.49, L.52, L.55, L.56]- 12/09/1958
Comments Meeting held at Headquarters, New York, on Thursday, 5 June 1958, at 2.45 p.m Date 12/09/1958 Classification (first level) C. Summary Records of the United Nations Conference on International Commercial Arbitration, New York, 20 May - 10 June 1958 Applicable NYC Provisions I | II | V | V(2)(a) | V(2)(b) | XII | XIV | XV | XVI Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3413&opac_view=6 Attachment (1)
Read DocumentAdobe Acrobat PDF23 rd meeting [E/CONF.26/SR.23 - E/CONF.26/L.60; Adoption and signature of the Final Act and Convention (E/CONF.26/8, 9, E/CONF.26/L.28, L.49, L.58, L.61)]- 12/09/1958
Comments Meeting held at Headquarters, New York, on Monday, 9 June 1958, at 3.30 p.m Date 12/09/1958 Classification (first level) C. Summary Records of the United Nations Conference on International Commercial Arbitration, New York, 20 May - 10 June 1958 Applicable NYC Provisions I | II | III | IV | V | V(1)(a) | V(1)(b) | V(1)(e) Language(s) French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3415&opac_view=6 Attachment (1)
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