|
Summary
|
The Respondent, as buyer, entered into a contract with a seller for the delivery of Greek corn. The contract contained a reference to the standard form contract No. 30 of the Grain and Feed Trade Association (“GAFTA”), which was later replaced by a reference to the GAFTA standard form contract No. 62. Both standard contracts contained identical arbitration clauses. The change was agreed orally by the parties and subsequently the Respondent alone amended the original contract by hand. Following the amendment, the seller assigned its right to receive the payment due under the contract to the Claimant. When the Respondent refused to pay, the Claimant filed a lawsuit before the Handelsgericht (Commercial Court) of the Canton of Zurich. The Respondent objected to the jurisdiction of the Handelsgericht based on an arbitration clause. The Claimant, in turn, argued that there was no valid arbitration agreement between the parties, because, inter alia, the arbitration agreement did not meet the requirements of Article II NYC, since both the parties had not signed the amended contract and because, in any event, the arbitration clause was not contained in the contract itself but in a separate document to which the contract referred.
The Handelsgericht held that the parties’ arbitration agreement met the requirements of Article II(2) NYC, finding that it was irrelevant that the amended agreement had not been signed by both the parties because the amendment did not result in any changes to the arbitration agreement as the arbitration clauses in both standard form contract were identical. In addition, the Handelsgericht found that it would be an abuse of rights if the Claimant, which had originally proposed the use of the GAFTA standard form contract No. 30 containing an arbitration clause and had subsequently orally agreed to the use of GAFTA standard form contract No. 62 containing the same arbitration clause, now argued based on the lack of an arbitration agreement in writing. The Handelsgericht also found that in the present case it was entirely irrelevant that the arbitration clause was not contained in the signed contract itself, but in the GAFTA standard form contract which was a separate document to which the contract referred. It held that the requirement that the arbitration agreement be in writing needed to be interpreted with regard to the object and purpose of the NYC, which was, on the one hand, to facilitate arbitration agreements in view of the needs of international commerce and, on the other hand, to protect the parties against an imprudent renouncement of their access to state court proceedings. Accordingly, the Handelsgericht found that the validity of an arbitration agreement needed to be considered in each individual case taking into account whether the parties were experienced business people or inexperienced individuals, and whether it could be assumed that the arbitration clauses to which the relevant contract referred to were known to the parties. In applying these criteria, the Handelsgericht concluded that the parties in the present case were not only both very experienced merchants, but also both familiar with the contents of the GAFTA standard form contracts as standard contracts specific to their industry. Finally, it held that it was not problematic that the GAFTA standard form contract did not directly set out the modalities of the arbitration, but rather only referred to the so-called “Arbitration Rules No. 125”, holding that the reference to a GAFTA standard form contract implied a reference to these arbitration rules with which both parties were familiar.
|
sorted by (Publication date descending, Resource ascending) Add to selection
Quick view
Refine your searchSwitzerland / 14 December 1989 / Switzerland, Handelsgericht des Kantons Zürich / HG87388U/HG87
