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Germany / 14 April 1988 / Bundesgerichtshof / III ZR 12/87
Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 14 April 1988 Case number III ZR 12/87 Applicable NYC Provisions V | I | V(2)(b) | V(1)(e) | V(1)(d) | V(1)(b) | I(1) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary The prevailing party in an International Chamber of Commerce (ICC) arbitration seated in Belgium sought enforcement of the award in Germany. The Landgericht (Regional Court) Stuttgart declared the award enforceable, but its decision was reversed by the Oberlandesgericht (Higher Regional Court) Stuttgart on appeal. The decision of the Oberlandesgericht was appealed before the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof reversed the Oberlandesgericht’s decision and reinstated the decision of the Landgericht, which had declared the award enforceable. It found that the NYC was applicable since the award had been rendered within the territory of another contracting state as per Article I(1) NYC. The Bundesgerichtshof held that the formal prerequisites set forth by Article IV NYC had been met and there were no grounds to refuse enforcement of the award under Article V NYC. First, it held that the award had become binding within the meaning of Article V(1)(e) NYC since it was not subject to appeal before a higher arbitral tribunal or a state court . Second, although the tribunal had exceeded the time limit for rendering its award under the ICC Rules, according to the Bundesgerichtshof, this would not constitute grounds for non-enforcement under Article V(1)(d) NYC. In this respect, it noted that under the ICC Rules an arbitral tribunal does not become functus officio unless it is substituted by a different tribunal, even if it fails to render its award within the prescribed time limit; thus, the extension of the time limit for rendering the award had nothing to do with the “composition of the arbitral authority.” Third, it ruled that not giving a party the opportunity to comment on the extension of the time limit for the issuance of the award did not constitute a ground for refusing enforcement under Article V(1)(b) NYC, recalling that this provision merely required that the parties be informed of the constitution of the arbitral tribunal and the existence of arbitral proceedings. The Bundesgerichtshof also dismissed the argument that the enforcement of the award would violate German public policy pursuant to Article V(2)(b) NYC, since the unsuccessful party had failed to make use of the possibility to comment on the extension of the time limit, thus the ICC Court’s failure to explicitly ask for the parties’ comments regarding the extension of the time limit for rendering of the arbitral award did not constitute a violation of German public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=921&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Rouen (Court of Appeal of Rouen) Date 13 November 1984 Parties Société Européenne d'Etudes et d'Entreprises (S.E.E.E.) v. République Socialiste Fédérale de Yougoslavie et autres Case number 982/82 Applicable NYC Provisions I | I(1) | V | V(1) Source Original decision obtained from the registry of the Cour d’appel de Rouen
Summary Under a contract dated 3 January 1932, a French company (SEEE, formally known as Société Européenne d'Etudes et d'Entreprises) constructed a railway for the Republic of Yugoslavia, which contained an arbitration agreement. The Republic of Yugoslavia suspended payment during the Second World War. The French Government, exercising diplomatic protection, then reached an agreement with the Yugoslav Government on 18 November 1950, under which the latter agreed to pay a certain amount to SEEE. After payment, SEEE sought additional payments due to the devaluation of the French Franc and a dispute arose between the parties in this respect. An award was rendered in Geneva on 2 July 1956 in favor of SEEE. The Yugoslav Government initiated an action to set aside the award before the Cantonal Court of Vaud, which considered that it lacked jurisdiction to hear the dispute and dismissed the action. This decision was upheld by the Swiss Supreme Court. In an order issued on 10 October 1969, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. However, this decision was later retracted by the Tribunal de Grande Instance de Paris on 8 July 1970, which was upheld by the Cour d'appel de Paris (Paris Court of Appeal), but then reversed by the Cour de cassation (Supreme Court) on 14 June 1977. The case was then remitted to the Cour d'appel d'Orléans (Orléans Court of Appeal), which denied enforcement but whose decision was then overturned by the Cour de cassation, ruling that the enforcement of a foreign arbitral award can be refused only if it violated international public policy. The case was then remitted to the Cour d'appel de Rouen (Rouen Court of Appeal). The Republic of Yugoslavia argued, inter alia, that the award had no legal existence because of the nullity of the arbitration agreement and that it was not final and binding on the parties. It contended further that only the 1927 Geneva Convention was applicable and that the 1961 Geneva Convention and the NYC did not apply since, with respect to the latter, the Republic of Yugoslavia ratified the Convention on 1 October 1981, subject to the reservation that it would apply only to awards made after its ratification took place. The Cour d'appel de Rouen overturned the 8 July 1970 decision retracting the enforcement order and declared the award enforceable in France. It first rejected the arguments raised by the Republic of Yugoslavia based on the lack of admissibility of the appeal and on the immunity of jurisdiction. It then held that the award did not violate international public policy. As to the applicability of the NYC, the Cour d'appel de Rouen reasoned that, as opposed to the 1927 Geneva Convention and the NYC, the 1961 Geneva Convention does not address enforcement issues but relates to arbitration in general and that, therefore, the various international conventions must be applied simultaneously, while noting that the most recent shall supersede the conflicting provisions of the older convention. It noted further that in relations between Contracting States to the 1961 Geneva Convention that are also parties to the NYC, Article IX(1) of the 1961 Geneva Convention limits the application of Article V(1)(e) NYC to the cases of setting aside set out under said Article IX(1). The Cour d'appel held that the purpose of the 1961 European Convention is not to provide grounds for recognition and enforcement of arbitral awards and thus referred to the other conventions entered into prior to the 1961 Geneva Convention. It dismissed the Republic of Yugoslavia’s contention that the NYC would not be applicable, holding that pursuant to Article I NYC, the NYC applies to the recognition and enforcement of an arbitral award made in the territory of a State other than the State in which the recognition and enforcement of the award is sought (as opposed to the 1961 Geneva Convention which takes into account the nationality of the parties). The fact that the Republic of Yugoslavia ratified the NYC in 1981 was deemed irrelevant since, in the case at hand, the scope of application of the NYC depended on France (the place of the enforcement) and Switzerland (the seat of the arbitration). The Cour d'appel de Rouen then held that under the NYC, it is for the party opposing recognition and enforcement to prove that the award has not yet become final or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made. In conclusion, the Cour d'appel de Rouen held that the Swiss Courts did not set aside the award and, as a result, that the award was binding on the parties in accordance with the NYC. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / a. European Convention of 1961 / §20
- I / 2. ANALYSIS (I) / ARTICLE I(1) / b. Awards “not considered as domestic awards in the State where their recognition and enforcement are sought” / §61
- I / 2. ANALYSIS (I) / ARTICLE I(3) / a.The territorial criterion and the reciprocity reservation / §72
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=119&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. District Court, Southern District of New York Date 15 November 1983 Parties La Societe Nationale Pour La Recherche, La Production, Le Transport, La Transformation et la Commercialisation Des Hydrocarbures (Algeria) v. Shaneen Natural Resources Company, Inc. (US) Case number 83 Civ. 0676 (KTD) Applicable NYC Provisions V | IV | I | V(2)(b) | IV(1)(a) | I(1) Source 585 F. Supp. 57 Languages English Summary Sonatrach, an Algerian entity, and Shaheen, an Illinois corporation entered into a contract for the sale of crude oil. An arbitration clause in the contract provided for the application of the Rules of the International Chamber of Commerce (“ICC Rules”) and for the application of Algerian law. Sonatrach had initiated a breach of contract action against Shaheen in the Supreme Court, New York County, and subsequently commenced arbitration in accordance with the ICC Rules. By the award dated 27 November 1981, the Arbitral Tribunal decided in Sonatrach’s favor, and Sonatrach applied for confirmation of the award in the United States. The United States District Court for the Southern District of New York confirmed the award. It held that the Plaintiff had fulfilled the formal requirements for enforcement under Article IV(1)(a) NYC. It further noted that under Section 207 of the Federal Arbitration Act (“FAA”), a Court must confirm the award unless there are applicable grounds to defer or deny confirmation under Article V NYC. With regards to the defense that the NYC was not applicable since Sonatrach was an Algerian entity, the Court held that the focus of Article I(1) NYC is not on the nationality of the party seeking to enforce an award, but on the situs of the arbitration. The Court also held that for the recognition of an award to violate United States public policy within the terms of Article V(2)(b), such recognition must offend “the forum state's most basic notions of morality and justice”, and dismissed the argument. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=719&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 19 November 1982 Parties Société Norsolor v. Société Pabalk Ticaret Limited Sirketi Case number I I0I92 Applicable NYC Provisions I | I(1) | V | V(1) | V(1)(e) Source Original decision obtained from the registry of the Cour d’appel de Paris
Languages English Summary A Turkish company (Pabalk) entered into a commercial representation agreement with a French company (Ugilor, which became 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. Norsolor appealed the enforcement order and the decision dismissing its claim before the Cour d'appel de Paris (Paris Court of Appeal) on the ground that the arbitral tribunal had ruled as amiable compositeur (ex aequo et bono) and therefore did not comply with its mandate. It also requested the suspension of the proceeding pending the decision of the Vienna Court of Appeal concerning the setting aside of the award. On 15 December 1981, the Cour d'appel de Paris decided to suspend the proceeding pursuant to Article V(1)(e) NYC. Afterwards, 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. The Cour d'appel de Paris overturned the decision of the Tribunal de Grande Instance de Paris and partially retracted the enforcement order. It first reasoned that the NYC (which had been ratified by France and Austria) was applicable to the case at hand since, in accordance with Article I NYC, it applies to the "recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal" and "arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought". It then noted that the Vienna Court of Appeal had set aside certain sections of the operative part of the award and that the jurisdiction of the Vienna Court of Appeal was not disputed. Pursuant to Article V(1)(e) NYC, the Cour d'appel de Paris held that it may refuse the recognition and enforcement of arbitral award which had been set aside by a competent authority of the country in which the award was rendered and thus decided to partially retract the enforcement order. reversed by : follows : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=558&opac_view=6 Attachment (1)
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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)
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