Switzerland, Cour de Justice de Genève (Geneva Court of Justice)
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Switzerland / 16 October 2015 / Switzerland, Cour de Justice de Genève / Monsieur A v. B / C/18035/2014
Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 16 October 2015 Parties Monsieur A v. B Case number C/18035/2014 Applicable NYC Provisions IV | IV(2) | V | V(1) | V(1)(a) | V(1)(d) | V(1)(e) | V(2) | V(2)(b) | VI Source http://justice.geneve.ch (material licensed for reuse under the License Creative Commons Attribution 2.5 Suisse)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3697&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 11 April 2014 Parties A v. B Case number C/17073/2012 Applicable NYC Provisions I | I(1) | I(2) | II | III | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | V(1) | V(1)(b) | V(1)(d) | V(1)(e) | V(2) | V(2)(a) Source http://justice.geneve.ch (material licensed for reuse under the License Creative Commons Attribution 2.5 Suisse)
affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3692&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 22 March 2013 Parties A v. B Case number C/11886/2011 Applicable NYC Provisions IV | IV(2) | V | V(1) | V(1)(b) | V(1)(d) | V(1)(e) | V(2) | V(2)(a) | V(2)(b) Source http://justice.geneve.ch (material licensed for reuse under the License Creative Commons Attribution 2.5 Suisse)
affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3687&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 04 March 2010 Parties X v. Y SA Case number C/19989/2009 Applicable NYC Provisions IV | V | V(1) | V(1)(e) | VI Source http://justice.geneve.ch (material licensed for reuse under the License Creative Commons Attribution 2.5 Suisse)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3686&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 23 September 2004 Parties X v. Y Case number C6165/2004 Applicable NYC Provisions V | V(1) | V(1)(e) Source Official Registry of the Cour de Justice de Genève
Languages English Summary On 28 May 2003, X and Y, two companies engaged in the oil business, entered into a sales contract containing an arbitration agreement providing for arbitration before the Riga Commercial Arbitral Tribunal. A dispute arose and Y seized the first instance court of Kuzerme in Riga, which ruled on 13 October 2003 in Y’s favor. On appeal, the District Court of Riga reversed the decision of the lower court. Y then seized the Commercial Arbitral Tribunal of Riga, which rendered an award on 2 December 2003 in favor of Y (the “First Award”). On 7 January 2004, the District Court of Zimeliai in Riga granted enforcement of the First Award. This decision was not subject to appeal. Meanwhile, X filed a Request for Arbitration before the Riga Commercial Arbitral Tribunal, requesting annulment of the sales contract. On 13 October 2003 the Riga Commercial Arbitral Tribunal, ruling in Y’s absence, annulled the contract and directed Y to pay damages to X (the “Second Award”). On 12 January 2004, the District Court of Zimeliai in Riga refused to enforce the Second Award on the grounds that Y had not been properly served notice of the arbitration proceedings. On 24 March 2004, Y filed a request before the Tribunal de Première Instance de Genève (Geneva Tribunal of First Instance) for seizure of X’s assets in Switzerland based on the First Award and the decision of the District Court of Zimeliai of Riga of 7 January 2004. X opposed the seizure on the grounds that the Second Award had annulled the sales contract and also that the decision of 7 January 2004 had been obtained through corruption. By order of 25 March 2004, The Tribunal de Première Instance allowed the seizure, observing that Y had produced a partial translation of the First Award, and that the award had subsequently been granted enforcement. It considered that the enforcement procedure in Latvia had been valid as there had been no evidence of corruption. It found that the First Award was binding pursuant to Article 194 of the Swiss Private International Law (“SPIL”) and Article V(1)(e) NYC. X appealed the decision, arguing that the Tribunal de Première Instance had based its decision on the 7 January 2004 decision of the Latvian District Court, which had erred manifestly on the facts. The Cour de Justice de Genève (Geneva Court of Justice) upheld the decision of the lower court. It considered that even though the First Award was rendered in a country which was not party to the NYC, pursuant to Article 194 of the SPIL its validity was governed by the NYC It noted that pursuant to Article V(1)(e) NYC, a foreign arbitral award did not need to be enforceable in its country of origin but only needed to have become binding upon the parties. It found that the award had become binding when it became res judicata and was not subject to an ordinary appeal. It added that enforcement of an award may be denied only if the party opposing enforcement could prove that one of the grounds in Article V(1) NYC had been met. The Cour de Justice de Genève ruled that X had not raised any of the grounds in Article V(1) NYC against the enforcement of the First Award, which had become binding notwithstanding the enforcement decision by the District Tribunal of Zimeliai of Riga, dated 7 January 2004. The Cour de Justice de Genève added that the Second Award, inasmuch as Y had not been served notice of the proceedings, did not conform to the requirements of the NYC and did not, therefore, its non-enforcement was not in contradiction to the enforcement of the First Award. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1488&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 15 April 1999 Parties R S.A. v. A Ltd. Applicable NYC Provisions IV | IV(1) | IV(1)(a) Source Original decision obtained from the registry of the Cour de Justice de Genève
Languages English Summary On 5 June 1996, A and R entered into a sales contract providing for arbitration pursuant to the rules of CIETAC of the China Council for the Promotion of International Trade (the “Chinese Commission for Arbitration” or “CCA”). A dispute arose between the parties and the CCA rendered an award in A’s favor. A sought to enforce the award in Switzerland by providing to the Tribunal de Première Instance of Geneva (Geneva Tribunal of First Instance) a copy of the contract, the original award in Chinese with a complete translation in French, of which the first and the last pages were sworn to be in conformity with the original. The Tribunal de Grande Instance granted enforcement of the award. R appealed and challenged enforcement on the grounds that A had not complied with Article IV NYC. It argued that A had only supplied the Tribunal de Première Instance with a non-certified copy of the main contract (containing the arbitration agreement), the original award in Chinese and a French translation of the award that was certified on the first and last pages only. The Cour de Justice de Genève (Court of Justice of Geneva) dismissed the appeal. It held that pursuant to Article 194 of the Swiss Private International Law, the NYC was applicable to the recognition and enforcement of awards rendered abroad, regardless of whether the State where the award had been rendered was a party to the NYC. The Cour de Justice stated that the formal requirements of Article IV NYC should be construed in a flexible manner. It recalled that the NYC was meant to improve recognition and enforcement of arbitral awards, and in particular, the party seeking enforcement only needed to comply with Article IV NYC, after which the burden shifts to the party opposing enforcement to prove a ground for denial of enforcement. The Cour de Justice held that the party seeking enforcement must at least provide the arbitration agreement and the arbitral award. It noted that R had admitted that A had submitted the original copy of the award and that although the translation the first and last pages of the award were certified, these were the most crucial pages since they established the identity of the parties and contained the final decision of the arbitral tribunal. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=931&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 11 December 1997 Parties X v. Y Case number C/20312/1997 Applicable NYC Provisions IV | IV(1) | IV(1)(b) | V | V(2) | V(2)(b) Source Original decision obtained from the registry of the Cour de Justice de Genève
Languages English Summary X, a Swiss company, and Y, a Chinese company, entered into three contracts in 1994 for the sale of Chinese peanuts (the “1994 Contracts”). The general conditions were printed on the reverse side of the first two contracts and included an arbitration agreement providing for arbitration in the State of the respondent. The arbitration clause was completed by typing machine and stated “if any, shall be in Beijing, China”. A previous contract had been entered into by the parties in 1993 providing for arbitration at the place of the registered office of the respondent. A dispute arose between the parties. Pursuant to the arbitration agreement contained in the 1994 Contracts, Y seized the Chinese Commission for Arbitration on 4 July 1995. A month later, Y sought to provisionally attach assets belonging to X in the Netherlands. X brought this matter before the Chinese Commission for Arbitration which held that the Holland Court had jurisdiction to rule on such conservatory measures. On 5 March 1996, the arbitral tribunal rendered an award in Beijing in favor of Y which was not subject to any appeal. On 9 May 1997, Y served X with a debt collection order directing X to pay sums due under the award. X opposed the debt collection order. Y brought a request for final dismissal of the objection to pay (mainlevée) and for enforcement of the arbitral award before the Tribunal de Première instance (First Instance Tribunal). On 17 September 1997, the Tribunal de Première instance, based on the 1994 Contracts, ordered the provisional dismissal of the objection to pay. Both X and Y appealed. X argued that certain amounts due to X should be set-off against the award and, in the alternative, that the award violated the NYC and Swiss public order. The Cour de Justice de Genève (Court of Justice of Geneva) annulled the decision of the Tribunal de Première Instance, ordered the definitive dismissal of the objection to pay, thus granting enforcement of the award. The Cour de Justice de Genève held that pursuant to Article 194 of the Swiss Private International Law (“SPIL”) the NYC was applicable, as Y’s request was based on an arbitral award rendered abroad. The Cour de Justice found that the award was final because the arbitration rules did not provide for an appeal against the award. The Cour de Justice de Genève rejected X’s argument under Article IV(1)(b) NYC that Y had not filed the arbitration agreement contained in the third contract. It noted that X had not objected to the jurisdiction of the arbitral tribunal, nor had it filed the contracts in the arbitration proceedings, which had been made in two copies. It held that the third contract referred to the same general conditions as the first two contracts, and that there, as a consequence, an arbitration agreement providing for arbitration under the Chinese Commission for Arbitration existed. Turning to the allegation that enforcement would violate Swiss public policy, the Cour de Justice de Genève held that a violation of Article V(2)(b) NYC could be examined sua ponte by the Court, but the requirements for such a violation would only be satisfied where there was a violation of fundamental principles of Swiss legal order, which was not the case in the matter at hand. It therefore dismissed the argument. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1541&opac_view=6 Attachment (1)
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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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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 17 September 1976 Parties L Ltd. v. C S.A. (GE) Case number 549 Applicable NYC Provisions V | V(1) | V(1)(b) | V(1)(d) | V(1)(e) Source Original decision obtained from the registry of the Cour de Justice de Genève
Languages English Summary A contract of sale was entered into between L and C, which contained an arbitration agreement providing for International Chamber of Commerce (ICC) arbitration. A dispute arose between the parties and an award was rendered on 1 October 1973, in The Hague, in favor of L. L sought enforcement of the award in Switzerland pursuant to Article IV NYC by producing the original award, its sworn translation and the original contract containing the arbitration agreement. C opposed the enforcement on the ground that the award violated public policy pursuant to Article V(2)(b) NYC, as the arbitrators had consulted an expert in the chrome industry ex parte. The Tribunal de Première Instance of Geneva (Geneva Tribunal of First Instance) denied enforcement on the grounds that the arbitral procedure had not been in accordance with the arbitration agreement because the three arbitrators had “joined a fourth arbitrator”. L appealed the decision. C objected, claiming a violation of Article V(1)(b) NYC because it was unable to present its case, which means that the procedure was not in accordance with the agreement of the parties (Art. V(1)(d) NYC). The Cour de Justice de Genève (Court of Justice of Geneva) annulled the decision of the Tribunal de Première Instance of Geneva and allowed the enforcement of the award. The Cour de Justice of Geneva held that the NYC was applicable to determine whether C had been unable to present its case pursuant to Article V(1)(b) NYC, resulting in a violation of Article V(1)(d) NYC. It recalled that a violation of public policy could relate to the award itself or to the procedure according to which it has been rendered. The Cour de Justice added that enforcement of an award could only be denied in case of a violation of the fundamental principles of the Swiss legal order, as public policy could not be used to oust the application of international treaties. In the present case, the Cour de Justice held that the arbitrators sought external and professional advice on the commercial context of the chrome industry (which was not prohibited under Dutch law, the law of the seat the arbitration) but not on an issue which was determinative to the case. The Cour de Justice concluded that it did not amount to a violation of fundamental principles of Swiss public policy. The Cour de Justice further added that pursuant to Article V(1)(e) NYC, an award can be set aside by a competent authority in the country which, or under the law of which, that award was made. C had however not seized the competent authorities in the Netherlands. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=929&opac_view=6 Attachment (2)
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