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France / 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 :	II / 2. ANALYSIS (II) / ARTICLE II(3) / a. Obligation to refer the parties to arbitration / §62
Link to the record	https://newyorkconvention1958.org/index.php?lvl=notice_display&id=114&opac_view=6

Attachment (1)

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