France, Cour de cassation (French Court of Cassation)
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France / 08 July 2015 / France, Cour de cassation / Société Ryanair Limited and Société Airport Marketing Services Limited v. Syndicat Mixte des Aéroports de Charente (SMAC) and Procureur général près la Cour d’appel de Paris / 13-25.846
Country France Court France, Cour de cassation (French Court of Cassation) Date 08 July 2015 Parties Société Ryanair Limited and Société Airport Marketing Services Limited v. Syndicat Mixte des Aéroports de Charente (SMAC) and Procureur général près la Cour d’appel de Paris Case number 13-25.846 Applicable NYC Provisions III | V | VII Source Original decision obtained from the registry of the Cour d'appel de Paris
see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1715&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 29 June 2007 Parties Société PT Putrabali Adyamulia v. Société Rena Holding et Société Moguntia Est Epices Case number 05-18.053 Applicable NYC Provisions VII | VII(1) Source Bulletin 2007, I, N° 250, Original decision obtained from the registry of the Cour de cassation
Summary An Indonesian company (Putrabali) sold a cargo of white pepper to a French company (Est Epices, which later became Rena Holding). The contract provided for arbitration according to the Rules of Arbitration and Appeal of the International General Produce Association (IGPA). A dispute arose when the cargo was lost in a shipwreck. The Indonesian company commenced arbitration in London in accordance with the IGPA Rules. In an award dated 10 April 2001, the arbitral tribunal held that Rena Holding's refusal to pay was "well-founded". Putrabali challenged the award on a point of law before the High Court on the basis of the Arbitration Act 1996 for England and Wales, which partially set aside the award and held that the Rena Holding's failure to pay for the cargo amounted to a breach of contract. In a second award dated 21 August 2003, the arbitral tribunal ruled in favor of Putrabali and ordered Rena Holding to pay the contract price. An enforcement order was issued by the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowing recognition and enforcement of the 2001 award in France. Putrabali challenged the decision of the Cour d'appel de Paris (Paris Court of Appeal) of 31 March 2005 which dismissed the appeal against the enforcement order, on the grounds that, inter alia, the setting aside of an arbitral award in a foreign country does not prevent the interested party from seeking enforcement of the award in France. Further, the Cour d'appel de Paris held that the enforcement of the 2001 award would not be contrary to international public policy. The Cour de cassation (Supreme Court) affirmed the decision of the Cour d'appel de Paris. It reasoned that an international arbitral award, which is not anchored in any national legal order, is a decision of international justice whose validity must be ascertained with regard to the rules applicable in the country where its recognition and enforcement are sought. Pursuant to Article VII NYC, it held that Rena Holding was allowed to seek enforcement in France of the 2001 award rendered in London in accordance with the arbitration agreement and the IGPA rules and could avail itself of the French rules on international arbitration, which do not list the setting aside of an award in the country of origin as a ground for refusing the recognition and enforcement of that award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=176&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 21 November 2006 Parties Société Groupama Transports v. Société MS Régine Hans und Klaus Heinrich KG Case number 05-21.818 Applicable NYC Provisions II | II(2) | VII | VII(1) Source Bulletin 2006 I N° 502 p. 447, Original decision obtained from the registry of the Cour de cassation
Summary A French company (Deher Frères) entered into a contract with a German company (MS Regine Hans und Klaus Heinrich KG), for the transportation of a passenger ship from Toulon to Pointe-à-Pitre on 31 March 1999. The ship was damaged. The insurer of the French company (Groupama) commenced proceedings before domestic courts. The Cour d'appel de Basse-Terre (Basse-Terre Court of Appeal) dismissed the action and referred the parties to arbitration. Groupama challenged this decision on the grounds that it was not bound by the arbitration agreement included in the contract and that the lower courts had failed to establish that the French company (and its insurer) had knowledge of the content of the said arbitration agreement. The Cour de cassation (Supreme Court) reasoned that the NYC provides for the application of a more favorable domestic law concerning the recognition of the validity of arbitration agreements. It noted that the principles of validity of international arbitration agreements and of Compétence-Compétence preclude a national judge from ruling on the existence, validity and scope of the arbitration agreement before the arbitral tribunal has ruled on these matters, except if the agreement is manifestly void or not applicable, which it held was not the case here. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=174&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 11 July 2006 Parties Société Generali France Assurances et al. v. Société Universal Legend et al. Case number 05-18.681 Applicable NYC Provisions II Source Bulletin 2006 I N° 365 p. 313, Original decision obtained from the registry of the Cour de cassation
Summary A bill of lading for the transportation of goods was signed on 6 August 2002, which referred to a charter-party agreement dated 22 July 2002. The goods were damaged during transportation. The import company sought damages against the insurance companies before the Tribunal de commerce de Bordeaux (Commercial Court of Bordeaux). The insurance companies requested the joinder of the other parties to the agreement, which invoked the arbitration clause in the charter-party agreement and requested suspension of the proceedings until the arbitral tribunal ruled on its own jurisdiction. The Cour d'appel de Bordeaux (Bordeaux Court of Appeal) dismissed the action and referred the parties to arbitration. The insurance companies challenged this decision on the grounds that they were not bound by the arbitration agreement and that the lower courts had failed to establish the parties' knowledge of the arbitration agreement included in the contract by reference. They also claimed that the arbitration agreement was manifestly null and void and therefore that the decision of the Cour d'appel de Bordeaux was contrary to Article II NYC, Article 1492 of the Code of Civil Procedure and Article 1134 of the Civil Code. The Cour de cassation (Supreme Court) upheld the decision of the lower courts but did not refer to the NYC. It reasoned that the charter-party agreement contained an arbitration agreement which was binding upon the successive holders of the bill of lading. It held that the insurance companies failed to demonstrate that the arbitration agreement was manifestly void and, therefore, confirmed that the Tribunal de Commerce de Bordeaux lacked jurisdiction to hear this dispute and that the arbitrators should rule on the existence, validity and scope of the arbitration agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=173&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 07 June 2006 Parties Copropriété Maritime Jules Verne et al v. Société American Bureau of Shipping (ABS) Case number 03-12.034 Applicable NYC Provisions II | VII | VII(1) Source Bulletin 2006 I N° 287 p. 251, Original decision obtained from the registry of the Cour de cassation
Summary The co-ownership Jules Vernes and the owners of the "Tag Heuer" ship, initiated proceedings before the Tribunal de Commerce de Paris (Commercial Court of Paris) in order to obtain compensation for damage to the ship. The American classification company (American Bureau of Shipping) challenged the jurisdiction of French courts on the basis of the arbitration agreement contained in the classification contract providing for arbitration in New York. The Tribunal de commerce de Paris and the Cour d'appel de Paris (Paris Court of Appeal) dismissed the case and referred the parties to arbitration in accordance with Articles II and VII(1) NYC. Following a decision of the Cour de cassation (Supreme Court) reversing the decision of the Cour d'appel de Paris, the case was remanded before the Cour d'appel de Paris which held that French courts lacked jurisdiction to hear the dispute. The Jules Vernes co-ownership challenged this decision on the ground that Article VII NYC allows only for the application of a more favorable domestic law when such law allows such parties to avail themselves of an arbitral award, but does not grant domestic law precedence regarding the conditions in which national courts must refuse to hear a dispute when there is an arbitration agreement. They also claimed that the arbitration agreement was manifestly inapplicable to them given that they were not signatories to the classification contract and that therefore the decision was contrary to Article 1458 of the Code of Civil Procedure. The Cour de cassation affirmed the decision of the Cour d'appel de Paris. It reasoned that the NYC reserves the right to apply domestic law in situations where it is more favorable for the recognition and validity of the arbitration agreement and that the principle of validity of international arbitration agreements and the principle according to which arbitrators have jurisdiction to decide on their own jurisdiction are material rules of French international arbitration law. It then noted that the combination of these principles preclude French Courts from carrying out a substantive, in-depth examination of the arbitration agreement, except in cases where the agreement is void or manifestly inapplicable. On this basis and in light of the complex factual and legal analysis of the dispute, the Cour de cassation held that the Cour d'appel de Paris rightly concluded that as the arbitration agreement was not manifestly inapplicable, the French judge had encroached on the arbitrators' jurisdiction. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=171&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 06 July 2005 Parties M. Golshani v. Gouvernement de la République islamique d’Iran Case number 01-15.912 Source Bulletin 2005 I N° 302 p. 252, Original decision obtained from the registry of the Cour de cassation
Summary An individual seized the Iran-US Claims Tribunal on 19 January 1982 to obtain compensation for the alleged expropriation of his shares in various companies. An award was rendered on 2 March 1993 which dismissed his claims. In an order issued on 1 February 1999, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. The individual challenged the decision of the Cour d'appel de Paris (Paris Court of Appeal) which had upheld the enforceability of the award in France, on the grounds that the Cour d'appel de Paris distorted his submissions by stating that he had not invoked the NYC to challenge the enforcement order, whereas he had argued that since the High Court of London had refused to apply the NYC for the enforcement of an award rendered by the Iran-US Claims Tribunal in the absence of an arbitration agreement, the enforcement order should be overturned pursuant to the NYC. He also claimed that the decision was contrary to Article 1502 1° of the Code of Civil Procedure given that the arbitral tribunal ruled in the absence of an arbitration agreement since the Treaty instituting the Iran-US Claims Tribunal could not be considered as an arbitration agreement to which a private party may subscribe. The Cour de cassation (Supreme Court) affirmed the decision of the Cour d'appel de Paris but did not refer to the NYC. It noted that the individual initiated the arbitration before the Iran-US Claims Tribunal and participated to the proceedings for over nine years without raising any objection. It thus held that the individual was estopped from claiming that the Iran-US Claims Tribunal had ruled without an arbitration agreement or on the basis of an agreement which was null and void. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=168&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 17 October 2000 Parties Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar (ASECNA) v. M. Issakha N'Doye Case number 98-11.776 Applicable NYC Provisions V | V(1) | V(1)(e) | VII | VII(1) Source Bulletin 2000 I N° 243 p. 160, Original decision obtained from the registry of the Cour de cassation
Summary An award was rendered in Dakar in a dispute between the ASECNA (Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar) and an individual regarding his dismissal. In an order issued on 8 July 1996, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. ASECNA challenged the decision of the Cour d'appel de Paris (Paris Court of Appeal) of 16 October 1997 which had upheld the enforcement order on the grounds that the award in dispute was a domestic award (as opposed to an international award) and that, therefore, the suspensive effect of the action to set aside the award initiated in Senegal precluded the enforcement of the award abroad in accordance with Article V(1)(e) NYC. The Cour de cassation (Supreme Court) affirmed the decision of the Cour d'appel de Paris. It reasoned that Articles 1498 et seq. of the Code of Civil Procedure on the recognition and enforcement of awards apply both to international awards and awards rendered abroad, irrespective of whether these awards are considered, in the country where they were rendered, as domestic or international awards. The Cour de Cassation then held that pursuant to the NYC (to which the French-Senegal Convention refers) and Article VII NYC, French international arbitration rules, which are more favorable to the enforcement of arbitral awards, must apply. Given that Article 1502 of the Code of Civil Procedure does not list as a ground for refusing enforcement the existence of an action which has a suspensive effect on the enforceability of the award, the Cour de cassation dismissed the individual's claim. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=159&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 24 March 1998 Parties Société Excelsior Film TV v. Société UGC-PH Case number 95-17.285 Applicable NYC Provisions V | V(2) | V(2)(b) Source Original decision obtained from the registry of the Cour de cassation
Summary An award was rendered in Rome in favor of an Italian company (Excelsior) against a French company (UGC-PH). The Cour d'appel de Paris (Paris Court of Appeal) refused enforcement of the award in France by ruling that it was contrary to international public policy as one of the arbitrators did not fulfill the requirement of impartiality. Excelsior challenged this decision on the grounds that the Cour d'appel de Paris not only had disregarded the terms of the dispute and distorted the foreign award, but had also violated the NYC, whose provisions prevail over domestic law and which allows for a refusal of enforcement on the basis of public policy if it relates to the recognition and enforcement of the award and not, as it did, to the Court's decision-making process. The Cour de cassation (Supreme Court) affirmed the decision of the Cour d'appel de Paris and dismissed the action. It reasoned that the provisions of Article V(2)(b) NYC are essentially identical to those of Article 1502 5° of the Code of Civil Procedure, in that they allow refusal of enforcement of an award which was rendered abroad in violation of the public policy of the country where the enforcement is sought. In the case at hand, the Cour de Cassation held that that the constitution of the arbitral tribunal violated due process and that therefore the award was contrary to French public policy under both Article V(2)(b) NYC and Article 1502 5° of the Code of Civil Procedure. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=152&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 29 November 1994 Parties CDF Chimie North America INC et al. v. Tolt Nielsen Incorporated et al. Case number 92-14.920 Applicable NYC Provisions II Source Original decision obtained from the registry of the Cour de cassation
Summary A French company (CDF Chimie France) chartered a vessel for the transportation of chemicals to a US company (CDF Chimie North America), which was carried out by another US company (Stolt Nielsen). The latter delivered a bill of lading to CDF Chimie North America which provided that transportation was governed by the charter-party agreement, a copy of which could be requested from the charter company or the loading company. A dispute arose after the vessel was damaged and the French company and CDF Chimie North America sued Stolt Nielsen and the owner of the vessel before French Courts, which objected to jurisdiction by invoking the arbitration agreement contained in the charter-party agreement. The Cour d'appel de Paris (Paris Court of Appeal) held that the arbitration agreement was binding upon CDF Chimie North American which had received the bill of lading. CDF Chimie North American challenged this decision. The Cour de cassation (Supreme Court) overturned the decision of the Cour d'appel de Paris. It reasoned that, according to Article II NYC, a party is bound by an arbitration agreement if it has been brought to its attention and if it has consented to it, at the latest, at the time when it received the merchandise, after which it was bound by the charter-party agreement. It then held that CDF Chimie North American was not informed of the content of the charter-party agreement (which included the arbitration agreement) and therefore the decision of the Cour d'appel de Paris did not comply with the provisions of the NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=141&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 23 March 1994 Parties Société Hilmarton Ltd v. Société Omnium de traitement et de valorisation (OTV) Case number 92-15.137 Applicable NYC Provisions V | V(1) | V(1)(e) | VII | VII(1) Source Bulletin 1994 I N° 104 p. 79, Original decision obtained from the registry of the Cour de cassation
Summary A French company (Omnium de Traitement et de Valorisation - OTV) entrusted an English company (Hilmarton) with the task of providing advise and coordination for a bid to obtain and perform a contract for works in Algeria. Hilmarton relied on the International Chamber of Commerce (ICC) arbitration agreement in order to obtain payment of the remaining balance of its fees. The award rendered in Geneva on 19 August 1988 dismissed this claim. The award was declared enforceable in France even though it had been set aside in Switzerland. Hilmarton challenged the decision of the Cour d'appel de Paris (Paris Court of Appeal) which upheld the enforcement order. It contended that, pursuant to Article V(1)(e) NYC, the recognition and enforcement should have been refused since it has been set aside in Switzerland. It argued further that the Cour d'appel de Paris also violated Articles 1498 and 1502 5° of the Code of Civil Procedure by granting effect to an award which had no legal existence since it had been set aside. The Cour de cassation (Supreme Court) affirmed the decision of the Cour d'appel de Paris and dismissed the action. Pursuant to Article VII NYC, it found that the Cour d'appel de Paris rightly held that OTV could avail itself of French rules pertaining to the recognition and enforcement of foreign awards in international arbitration and notably Article 1502 of the Code of Civil Procedure, which does not include the same ground for refusal of recognition and enforcement of awards as set forth in Article V(1)(e) NYC. The Cour de cassation added that the award rendered in Switzerland was an international award which was not integrated into the legal order of that State and therefore continues to exist notwithstanding the notion that it had been set aside and its recognition in France was not contrary to international public policy. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=140&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 09 November 1993 Parties Société Bomar Oil N.V. v. Entreprise tunisienne d'activités pétrolières (ETAP) Case number 91-15.194 Applicable NYC Provisions II | II(1) | II(2) Source Bulletin 1993 I N° 313 p. 218, Original decision obtained from the registry of the Cour de cassation
Summary By an exchange of telexes in August 1983, a Tunisian public entity (ETAP) and a company registered in the Netherlands Antilles (Bomar Oil) entered into an agreement for the sale of crude oil by ETAP, which referred to "other conditions" belonging to "those of the standard ETAP contract". A dispute arose and ETAP commenced arbitration in accordance with the International Chamber of Commerce (ICC) arbitration agreement included in the standard ETAP contract. Bomar objected to jurisdiction by arguing that the arbitration agreement, which was not included in the document signed by the parties, but only in a separate document to which reference was made in the main agreement, should be deemed non-existent. In an award of 25 January 1985, the arbitral tribunal rejected the objection to jurisdiction. The Cour d'appel de Versailles (Versailles Court of Appeal), ruling after the case had been remitted to it by the Cour de Cassation (Supreme Court), dismissed Bomar Oil's action to set aside the award. Bomar Oil appealed this decision by arguing that it violated Article II NYC, as well as Articles 1443, 1495 and 1499 of the Code of Civil Procedure, on the basis that it did not find that the existence of an arbitration agreement could have been mentioned during the exchange of telexes nor that the parties had regular business relations. It contended that this would have been the only way to assume that both parties had full knowledge of the content of the standard ETAP contract and, in particular, the arbitration agreement. The Cour de cassation affirmed the decision of the Cour d'appel de Versailles and refused to set aside the award, without referring to the NYC. It held that in international arbitration, an arbitration agreement, by reference to a document in which it appears (such as the general conditions of a model contract), is valid, in the absence of any mention in the main contract, when the party against which the arbitration agreement is used is aware of the content of the document at the time the contract was entered into. It added that, even though it remained silent, this party accepted the incorporation of that document into the contract. It concluded that, in the case at hand, the Cour d'appel de Versailles had independently noted that Bomar Oil had accepted, without reservations, ETAP's proposals expressly referring to the standard ETAP contract of which it had previously received a copy. affirms : see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / a. Domestic law more favourable than article II / §32
- 1. INTRODUCTION (II) / §6
- II / 2. ANALYSIS (II) / B. Meaning of 'agreement' / §21
- France / 11 October 1989 / France, Cour de cassation / Société Bomar Oil N.V. v. Entreprise tunisienne d’activités pétrolières (ETAP) / 87-15.094
- France / 20 January 1987 / France, Cour d'appel de Paris / Société Bomar Oil N.V. v. Entreprise tunisienne d'activités pétrolières (ETAP) / M 4683
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=138&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 10 March 1993 Parties Société Polish Ocean Line v. Société Jolasry Case number 91-16.041 Applicable NYC Provisions V | V(1) | V(1)(e) | VII | VII(1) Source Bulletin 1993 I N° 99 p. 66, Original decision obtained from the registry of the Cour de cassation
Summary On 13 August 1988, a Polish company (Polish Ocean Line - POL) entered into a representation agreement with a French company (Jolasry) containing an arbitration agreement. An arbitral award was rendered in Gdansk on 17 March 1990 in favor of Jolasry. On 12 April 1990, POL commenced an action to set aside the award before the Economic Court of Gdansk, which suspended the enforcement of the award on 22 May 1990. In the meantime, the award was declared enforceable in France on 30 April 1990. POL challenged the decision of the Cour d'appel de Douai (Douai Court of Appeal) dated 18 April 1991 which upheld the enforcement order on the ground that, in light of the pending action in Poland and the decision rendered by the Court of Gdansk, the refusal to suspend enforcement of the award in France was contrary to Articles 1498 and 1502 of the Code of Civil Procedure. The Cour de cassation (Supreme Court) affirmed the decision of the Cour d'appel de Douai and dismissed the action. It reasoned that Article VII NYC provides that the provisions of the NYC (to which France and Poland are parties) may not deprive a party of any right to avail itself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. It then held that French courts may only refuse enforcement in the limited number of situations listed in Article 1502 of the Code of Civil Procedure, which does not include the ground set forth in Article V(1)(e) NYC (i.e. where the award is either set aside or suspended in the country where it was rendered). It thus concluded that the Cour d'appel de Douai rightly found that the action to set aside the award in Poland and the suspension of enforcement of the award obtained in Poland could not justify a refusal to enforce the award in France. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=136&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 11 June 1991 Parties Société JP. Beemsterboer BV v. Mme Alfred Hellec Case number 90-12.296 Applicable NYC Provisions V Source Registry of the Court
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5232&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 11 October 1989 Parties Société Bomar Oil N.V. v. Entreprise tunisienne d’activités pétrolières (ETAP) Case number 87-15.094 Applicable NYC Provisions II | II(1) | II(2) Source Bulletin 1989 I N° 314 p. 209, Original decision obtained from the registry of the Cour de cassation
Summary By an exchange of telexes in August 1983, a Tunisian public entity (ETAP) and a company registered in the Netherlands Antilles (Bomar Oil) entered into an agreement for the sale of crude oil by ETAP, which referred to "other conditions" belonging to "the standard ETAP contract". A dispute arose and ETAP commenced arbitration in accordance with the International Chamber of Commerce (ICC) arbitration agreement included in the standard ETAP contract. Bomar objected to jurisdiction. In an award of 25 January 1985, the arbitral tribunal rejected the objection to jurisdiction. Bomar Oil commenced an action to set aside the award before the Cour d'appel de Paris (Paris Court of Appeal), arguing that the arbitration agreement, which was not included in the document signed by the parties, but only in a separate document to which reference was made in the main agreement, should be deemed non-existent in accordance with Article 1502 1° of the Code of Civil Procedure. The Cour d'appel de Paris dismissed this action by ruling that Bomar Oil could not have ignored the provisions of the standard ETAP contract which are common in the hydrocarbon field and, in any case, should have reviewed the said contract prior to consenting to it. Bomar Oil appealed this decision. The Cour de cassation (Supreme Court) reasoned that, pursuant to Article II(1) NYC, the Contracting Parties to the NYC committed to recognize an agreement in writing under which the parties undertake to submit to arbitration any or all differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. It noted further that, in accordance with Article II(2) NYC, an agreement in writing shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. Pursuant to these provisions, it held that an arbitration agreement, by reference to a document in which it appears, is valid if it is mentioned in the main contract, unless it can be established that the parties had regular business relations which would have enabled them to have a full knowledge of the provisions governing their commercial relations. The Cour de cassation overturned the decision of the Cour d'appel de Paris for having failed to assess whether the arbitration clause had been mentioned in the exchange of telexes or to establish the existence of regular business relations between the parties. followed by : reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=129&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 05 May 1987 Parties Commandement des Forces Aériennes de la République Islamique d'Iran v. Société Bendone Derossi International Limited Partnership Case number 85-13.162 Applicable NYC Provisions VII Source Bulletin 1987 I N° 137 p. 107, Original decision obtained from the registry of the Cour de cassation
Summary On 15 January 1978, a US company (Bendone Derossi International) entered into a supply agreement for military uniforms with the Iranian Air Forces, which contained an International Chamber of Commerce (ICC) arbitration agreement. A dispute arose and an arbitral award was rendered in Paris on 15 December 1980 in favor of Bendone Derossi International. The Iranian Air Forces filed an action to set aside the award which was declared inadmissible by the Cour d'appel de Paris (Paris Court of Appeal), holding that the provisions of Article 1502 of the Code of Civil Procedure were not applicable to the case at hand. The Iranian Air Forces challenged this decision on the ground that, pursuant to Article VII NYC and Article 12 of the Code of Civil Procedure, the Cour d'appel de Paris should have applied the legal remedies provided under French law. The Cour de cassation (Supreme Court) dismissed the Iran Air Forces claim. It reasoned that the NYC is not applicable to the case at hand, since the action does not relate to the enforcement of an arbitral award, but to its setting aside. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=125&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 25 February 1986 Parties Société C.O.N.F.E.X. v. Etablissements Dahan and M. Bellue Case number 84-12.138 Applicable NYC Provisions II | II(1) | II(2) Source Original decision obtained from the registry of the Cour de cassation
Summary A sales agreement was concluded on 10 March 1980, between a French company (DAHAN) and a Romanian company (CONFEX), containing an arbitration agreement. By exchange of telexes on 5 and 6 August 1982, the same parties concluded a second sales agreement. A dispute arose between the parties regarding the conformity of the goods delivered in accordance with the second sales agreement. DAHAN sued CONFEX before the Tribunal de Commerce de Marseille (Commercial Court of Marseille), which objected to jurisdiction by invoking the arbitration agreement contained in the 10 March 1980 sales agreement. On 18 January 1984, the Cour d'Aix-en Provence (Aix-en-Provence Court of Appeal) affirmed the decision of the Tribunal de commerce de Marseille which had dismissed CONFEX's objection to jurisdiction and assumed jurisdiction, by ruling that the second sales agreement, which was the subject of the dispute, did not contain any commitment by DAHAN to settle any dispute arising out of the said agreement through arbitration. Appealing this decision, CONFLEX argued that French Courts lacked jurisdiction to hear the dispute. It contended that in international arbitration, the arbitration agreement is not subject to any formal requirement and that the intention of the parties may be established by any means. The Cour de cassation (Supreme Court) upheld the decision of the Cour d'appel d'Aix-en-Provence and dismissed the action. It reasoned that CONFEX, which had invoked the NYC requiring an agreement in writing before the lower courts, could not contradict itself by arguing now that the arbitration agreement is not subject to any formal requirement in international arbitration. It then concluded that, in the case at hand, the parties have not consented to settle disputes arising out of the second sales agreement through arbitration. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=122&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 09 October 1984 Parties Société Pabalk Ticaret Limited Sirketi c. Société Norsolor Case number 83-11.355 Applicable NYC Provisions V | V(1) | V(1)(e) | VII | VII(1) Source Original decision obtained from the registry of the Cour de cassation
Summary A Turkish company (Pabalk) entered into a commercial representation agreement with a French company (Ugilor, later Norsolor), which contained an International Chamber of Commerce (ICC) arbitration agreement. A dispute arose and an award was rendered in Vienna on 26 October 1979 in favor of Pabalk. In an order issued on 4 February 1980, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. Pursuant to Article 1028 of the Code of Civil Procedure, Norsolor challenged the enforcement order before the Tribunal de Grande Instance de Paris, which dismissed its claim. In the meantime, the Vienna Court of Appeal partially set aside the award on 29 January 1982, on the ground that the arbitral tribunal had breached Article 13 of the ICC Rules by failing to establish which national law was applicable and merely referring to the lex mercatoria . Norsolor then appealed the enforcement order and the decision dismissing its claim before the Cour d'appel de Paris (Paris Court of Appeal), which, in a decision dated 19 November 1982, overturned the decision and partially retracted the enforcement order pursuant to Article V(1)(e) NYC, given that certain sections of the operative part of the award had been set aside by the Vienna Court of Appeal. Appealing this decision, Pabalk argued that the Cour d'appel de Paris violated Article 12 of the Code of Civil Procedure, and Article VII NYC given that, under French law, the court in charge of the enforcement of an arbitral award may not control the reasons stated in the arbitral award and that the reference made by the arbital tribunal to the lex mercatoria does not violate international public policy. The Cour de cassation (Supreme Court) overturned the decision of the Cour d'appel de Paris. It reasoned that according to Article VII NYC, the provisions of the NYC do not deprive any interested party of any right it may have to avail itself of an arbitral award in a manner and to the extent allowed by the law where such award is sought to be relied upon. It added that Courts may not refuse enforcement of an arbitral award where their domestic legislation so permits and, by virtue of Article 12 of the Code of Civil Procedure, Courts should, even sua sponte, proceed to this verification. It then held that the Cour d'appel de Paris should have verified whether French law allowed Pabalk to avail itself of the award. reverses : see also :
- France / 15 December 1981 / France, Cour d'appel de Paris / Société Norsolor v. Société Pabalk Ticaret Limited Sirketi / I I0I92
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / c. Party request not necessary / §12
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / c. Domestic law more favourable than article V(1)(e) / §42
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=118&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 25 May 1983 Parties Société Maatschappij Voor Industríele Research en Ontwikkeling v. M. Lievremont et M. Cominassi Case number 82-11.699 Applicable NYC Provisions V | V(1) | V(1)(d) Source Original decision obtained from the registry of the Cour de cassation
Summary Under a contract dated 21 December 1977, two individuals sold various patents to a research company registered in the Netherlands (Maatschappij Voor Industrielle Research en Ontwikkeling B.V.). The agreement contained an arbitration clause. A dispute arose between the parties and the parties agreed in writing to settle their dispute through arbitration in Brussels. An award was rendered on 30 October 1980 in favor of the two individuals. The research company initiated an action to set aside the award before French Courts. The Cour d'appel de Paris dismissed the action for lack of admissibility due to the fact that under the legal regime prior to the 12 May 1981 Decree, only French awards could be set aside, which was not the case here since it was not established that French law governed the arbitral procedure. Appealing this decision, the research company argued that the parties had implicitly chosen French law as the law governing the arbitral procedure and thus, this was a domestic award, against which an action to set aside could be brought under French law. It argued further that the decision of the Cour d'appel de Paris was contrary to Article V(1)(d) NYC. The Cour de cassation (Supreme Court) upheld the lower courts' decision and dismissed the action. It held that the NYC, which aims at facilitating the recognition and enforcement of foreign arbitral awards, is not applicable when the action does not aim at enforcing an arbitral award, as was the case here. It then reasoned that under the legal regime prior to the 1981 Decree, actions to set aside awards may only be brought against domestic awards and ruled that, in the case at hand, given that the research company had failed to establish that the parties had implicitly chosen French law as the law governing the arbitral procedure, the action to set aside an international arbitral award was not admissible. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=117&opac_view=6 Attachment (1)
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