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France / 07 June 2006 / France, Cour de cassation / Copropriété Maritime Jules Verne et al v. Société American Bureau of Shipping (ABS) / 03-12.034
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 Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 27 March 2006 Case number 9 Sch 02/05 Applicable NYC Provisions VII | V | VII(1) | V(2)(b) | V(1)(b) Source Original decision obtained from the registry of the Oberlandesgericht Karlsruhe Languages English Summary The Applicant applied to the Oberlandesgericht (Higher Regional Court) Karlsruhe for recognition and enforcement of an arbitral award rendered in its favour by an arbitral tribunal in Ukraine under the arbitration rules of the International Commercial Arbitration Court (“ICAC”) of the Ukrainian Chamber of Commerce and Industry. The Respondent opposed the enforcement application contending that (i) it had not received the arbitral award on March 1, 2005 as alleged by the Applicant, (ii) the arbitral tribunal had violated due process by refusing to grant the Respondent’s request for postponement of the oral hearing, and (iii) the arbitral award was entirely arbitrary. The Oberlandesgericht declared the award enforceable, holding that the Respondent was precluded from raising objections to enforcement at this stage since it had failed to challenge the award on those grounds at the seat of the arbitration within the applicable time limits. The Oberlandesgericht noted that it was long accepted in German case law that objections to enforcement could only be considered in enforcement proceedings if an admissible annulment application was not yet time-barred at the seat of the arbitration. According to the Oberlandesgericht, the applicable time limit had lapsed even if the Respondent had not received the arbitration award on March 1, 2005, as it would have received the award in June 2005 at the latest. The Oberlandesgericht further noted that although Article V NYC did not contain such a preclusion rule, the NYC did not prevent, either by virtue of its international character or as part of the domestic law (pursuant to Section 1061 of the German Civil Procedure Code), the German courts from using a more permissive approach to the grounds for rejecting enforcement in accordance with Article VII NYC. Moreover, the Oberlandesgericht noted that Section 1059(2) of the German Civil Procedure Code contained a preclusion rule in relation to missed domestic annulment proceedings and that foreign preclusion rules should equally be given effect to ensure legal certainty in relation to arbitration awards. The Oberlandesgericht held that, in any case, the enforcement application was without merit. The Oberlandesgericht found that the Respondent’s right to be heard (Article V(1)(b) NYC) had not been violated by the tribunal’s refusal to postpone the oral hearing, adding that the Respondent could have sent a suitable representative and that a further postponement of the hearing date would have resulted in a disregard of the Applicant’s interest in legal protection. The Oberlandesgericht further held that the Respondent’s allegation as to the arbitrariness of the award was baseless and therefore there had been no violation of public policy under Article V(2)(b) NYC. The Oberlandesgericht noted that a public policy violation could be assumed only when the arbitral tribunal’s reasoning could no longer be followed and that a review of the content of the award on the merits was not permissible. Finally, the Oberlandesgericht held that it could decide on the application for the declaration of enforceability without conducting an oral hearing due to the fact that the grounds raised by the Respondent for denying enforcement had been precluded and its further allegations had not been sufficiently substantiated. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1314&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 15 March 2006 Case number 34 Sch 06/05 Applicable NYC Provisions VII | V | IV | VII(1) | V(1)(d) | IV(1) Source DIS Summary The parties concluded a manufacturing contract containing a clause referring disputes at the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (ICAC). A dispute arose when the supplier allegedly failed to pay under several invoices. The Claimant initiated arbitration and obtained a favorable award, and subsequently sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) München granted enforcement and rejected the Defendant's objection that the composition of the tribunal was not in accordance with the Parties' agreement, as the tribunal had been composed of one arbitrator rather than two or more arbitrators as agreed in the arbitration clause. The Court held that the Defendant was aware of this composition but did not object to it during the arbitration proceedings, and was therefore estopped from raising this objection during enforcement proceedings. The Claimant had fulfilled the formal requirements for enforcement under Article IV(1)(a) by supplying the original arbitral award together with a certified copy of its German translation. In virtue of the more-favorable-right provision of Article VII(1) NYC, it was not necessary to supply the arbitration agreement as required by Article IV(1)(b) NYC, because domestic German law does not require it. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / a. Documents specified under article IV(1) / §17
- IV / 2. ANALYSIS (IV) / A. The requirement that the applicant provide the arbitration agreement 'referred to in article II' / §66
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=281&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 23 February 2006 Case number III ZB 50/05 Applicable NYC Provisions VII | V | VII(1) | V(2)(b) Source BGH Languages English Summary The Parties concluded a contract for the delivery of wood that provided for arbitration pursuant to the Arbitration Rules of the Belorussian Chamber of Industry and Commerce in Minsk. The Defendant did not participate in the proceeding since it considered the arbitration clause to be invalid. The Oberlandesgericht (Higher Regional Court) Karlsruhe rejected the application to declare the award enforceable on the ground of violation of public policy, arguing that the award did not comply with a provision of the Belorussian Arbitration Law providing that in the event of a challenge to its jurisdiction, the arbitral tribunal must rule on its competence in a preliminary award. The Claimant thereafter sought to set aside the decision of the Oberlandesgericht Karlsruhe by a complaint on points of law to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof held that the Oberlandesgericht Karlsruhe was mistaken in ruling that the award violated public policy. Pursuant to Article VII(1) NYC and the (more favourable) provisions of the German-Soviet Treaty on General Issues of Trade and Maritime Transport of 1958, which was held to apply to Germany's relations with Belorussia, grounds for non-enforcement were more limited than under the NYC, since the Treaty presupposes a violation of international public policy. The Bundesgerichtshof held that the tribunal did not violate international public policy since neither the UNCITRAL Model Law nor the German law required an tribunal to always rule by separate and preliminary award. Because the Parties were not prevented from having the award reviewed by the state courts, their fundamental rights had not been infringed. The Bundesgerichtshof held that the declaration of enforceability could not have been denied on that ground. Yet, it could have been denied on the basis of the absence of a valid arbitration agreement. Since the Oberlandesgericht Karlsruhe did not determine this issue, the matter was referred back to it. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=382&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 28 November 2005 Case number 34 Sch 019/05 Applicable NYC Provisions VII | V | IV | V(2)(b) | IV(2) | IV(1)(a) | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht München
Languages English Summary The Respondent, a German paint company, engaged the Applicant, a UK construction company, to perform plastering works on certain buildings in the UK. A dispute arose as to the quality of the Applicant’s work and the Respondent refused to pay the Applicant for the work done. The parties went to arbitration and a sole arbitrator rendered an award granting part of the Applicant’s claims. The Applicant sought enforcement of the partial award in Germany. The Respondent objected to the enforcement contending, in particular, that the award should not be enforced since the sole arbitrator had not taken into account certain facts presented by the Respondent. The Oberlandesgericht (Higher Regional Court) München granted enforcement stating that the application for a declaration of enforceability met the formal requirements under German law (Sections 1025(4), 1061(1), 1064(1) and (3) of the German Civil Procedure Code. It noted that the Applicant had submitted the original award as well as a translation in German. It further stated that to the extent that Article IV NYC contained additional requirements regarding the submission of documents and their respective quality, pursuant to the more-favorable-right principle at Article VII(1) NYC, the less stringent requirements of German law were applicable instead of those in Article IV NYC . The Oberlandesgericht concluded that Section 1064(1) of the German Civil Procedure Code, in conjunction with Section 1064(3) of the German Civil Procedure Code were more favorable to the recognition of foreign arbitral awards and were applicable instead of Article IV NYC. The Oberlandesgericht also held that the grounds for refusing enforcement under Article V NYC were not applicable as the Respondent had not raised any of the grounds for refusing enforcement under Article V(1) NYC, and that enforcement could not be rejected based on the Respondent’s claim that the award violated public policy under Article V(2)(b) NYC. The Oberlandesgericht stated that an arbitral award violated public policy only if it violated a norm which affected the basis of German public and economic life or if it constituted an irreconcilable contradiction of German perceptions of justice. It held that public policy also included fundamental principles of procedural law, such as the right to be heard, and that whether there had been a breach of the right to be heard would be assessed on the basis of principles of German law. The Oberlandesgericht further held that it was key whether, from the standpoint of German public policy, the specific result of the application of a foreign law was to be rejected. The Oberlandesgericht concluded that in the present there was no violation of public policy as the Respondent had failed to prove that the arbitral tribunal had indeed ignored relevant facts. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §38
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. The public policy exception under the Convention / §9
- I / 2. ANALYSIS (I) / ARTICLE I(1) / a. Awards “made in the territory of a State other than the State where the recognition and enforcement of such awards are sought” / §45
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Procedural public policy / §35
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1324&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 07 November 2005 Case number 11 Sch 07/04 Applicable NYC Provisions VII | IV | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Dresden Languages English Summary Following enforcement proceedings in which the Respondent did not participate, the Oberlandesgericht (Higher Regional Court) Dresden granted the application for declaration of enforceability of the arbitration award issued by the Vienna Commodity Exchange. The Oberlandesgericht held that it could decide on the application without conducting an oral hearing since the Respondent had not requested the annulment of the arbitration award pursuant to Section 1063(2) of the German Civil Procedure Code. The Oberlandesgericht held that the arbitration award was to be declared enforceable since the Respondent had not raised any objections to enforcement, and no grounds for refusal of enforcement were apparent. The Oberlandesgericht further held that the Applicant’s application also met the relevant formal requirements, as it had supplied a certified copy of the German-language arbitration award. The Oberlandesgericht stated that the Applicant did not need to submit a certified copy of the arbitration agreement as required under Article IV NYC, since the same was not required under German law and, which was applicable instead of Article IV NYC pursuant to the more-favorable-right provision at Article VII NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1313&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 02 November 2005 Case number 11 Sch 15/05 Applicable NYC Provisions VII | IV | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Dresden Languages English Summary Following enforcement proceedings in which the Respondent did not participate, the Oberlandesgericht (Higher Regional Court) Dresden granted enforcement of an arbitration award issued by the Vienna Commodity Exchange. The Oberlandesgericht held that it could decide on the application without conducting an oral hearing since the enforcement debtor had not requested the annulment of the arbitration award pursuant to Section 1063(2) of the German Civil Procedure Code. The Oberlandesgericht held that the arbitration award was enforceable since the Respondent had not raised any objections to enforcement, and no grounds for refusal of enforcement were apparent. The Oberlandesgericht further held that the Applicant’s application fulfilled the relevant formal requirements, as it had submitted a certified copy of the German-language arbitration award. The Oberlandesgericht stated that the applicant did not need to submit a certified copy of the arbitration agreement as required under Article IV NYC, since the same was not required under German law, which was applicable instead of Article IV NYC pursuant to the more-favorable-right provision at Article VII NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1312&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 29 September 2005 Parties Direction Générale de l'Aviation Civile de l'Emirat de Dubaï v. Société International Bechtel Co. Case number 2004/07635 Applicable NYC Provisions VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary On 20 February 2002, a sole arbitrator ruled in favor of a company registered in Panama (International Bechtel Co.) in a dispute against the Directorate General of Civil Aviation of the Emirate of Dubai (DAC). The award was subsequently set aside by the Dubai Supreme Court on 15 May 2004. In the meantime, International Bechtel sought to enforce the award in France, which was granted by an order of the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris). At the time, the United Arab Emirates was not a party to the NYC and the 1991 Convention on judicial cooperation between France and United Arab Emirates applied to the recognition of arbitral awards. Appealing this decision, DAC requested full recognition, on the basis of the 1991 Convention on judicial cooperation, of the Dubai Supreme Court decision upholding the setting aside of the award. It further argued that the award may not be enforced in France since it did not meet the requirements of the 1991 Convention (which, according to it, provided for the exhaustion of local remedies and the enforceability of the award in the country of origin) and was set aside in application of the law chosen by the parties governing the arbitral procedure. It also claimed that the enforcement judge's disregard of the 1991 Convention constituted an excess of power, that the sole arbitrator did not comply with his mandate (Article 1502 3° of the Code of Civil Procedure) and that the recognition and enforcement of the award was contrary to international public policy (Article 1502 5°). The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order and dismissed DAC's action. It reasoned that the condition relied upon by DAC whereby all recourse must be exhausted in the country of origin before the enforcement of the award may be granted in France is contrary to French fundamental principles of arbitration aiming at facilitating international circulation of awards (which do not foresee the setting aside of an award as a ground for refusing recognition and enforcement). It noted that these principles are applicable in the context of the 1991 Convention which was also concluded to facilitate recognition of awards between the two States, especially since the United Arab Emirates was not a party to the NYC, which reserves the right to apply more favorable French law allowing for the enforcement of an award having been set aside at the seat of the arbitration. The Cour d'appel de Paris then held that decisions rendered following annulment proceedings (similarly to enforcement orders) do not have any international effect outside the country where they have been rendered. It thus examined the grounds for the enforcement of the award, irrespective of the annulment of the award by the Dubai Supreme Court and held that the enforcement of the award was not contrary to the 1991 Convention. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=169&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) Date 27 September 2005 Case number 29 Sch 01/05 Applicable NYC Provisions VII | V | IV | VII(1) | V(2)(b) | V(1)(a) | IV(2) | IV(1)(a) Source DIS Languages English Summary The parties entered into an agreement which provided that the Applicant, an Iranian citizen, would assist the Respondent, a German company, in resolving certain disputes it had with the Iranian authorities in exchange for a “consulting fee”. The agreement contained the following arbitration clause: “All disputes arising in connection with this Letter of Commitment shall be settled in accordance with the laws of conciliation and arbitration of the Geneva Chamber of Commerce. In case of non-settlement, the dispute will be submitted for a final decision to the arbitrators of the Geneva Court of Justice. The rules of conciliation an arbitration of the said court will be binding for both parties”. Subsequently, the Applicant initiated arbitration proceedings at the Geneva Chamber of Commerce, Industry and Services, Geneva (CCIG), seeking payment of outstanding consulting fees. The Respondent participated in the arbitration proceedings but sought a declaration that there existed no valid arbitration clause, the dismissal of the Applicant’s claims, and that conciliation proceedings be conducted following the constitution of the arbitral tribunal. Conciliation proceedings were conducted with no result and thereafter the arbitral tribunal decided on its jurisdiction in an interim arbitral award. The interim award stated that while the arbitration clause was “pathological”, it was nevertheless valid since the parties’ intent to arbitrate disputes in general, and more specifically to refer disputes to arbitration under the auspices of Geneva’s leading arbitral institution, was clear. The arbitral tribunal awarded part of the Applicant’s claims. The Applicant sought enforcement in Germany, to which the Respondent objected, arguing that the arbitration agreement was not valid because the clause was contradictory, and also that one of the signatories had understood it to be a choice of forum clause. The Respondent further argued that enforcement would be contrary to public policy in Germany because the award was rendered in violation of the Respondent’s right to be heard as the tribunal had failed to hear a witness on the issue of the validity of the arbitration agreement, and moreover, the consulting agreement was illegal because it has been concluded for the purpose of financing the payment of bribes. The Oberlandesgericht (Higher Regional Court) Hamm granted enforcement, finding that the formal conditions for recognition of the award, as set out in Article IV(1)(a) and IV(2) NYC, had been met as the Applicant had provided certified copies and translations of the final and interim awards. It found that it was sufficient that the Applicant had only provided a copy of the arbitration agreement and not the original because, pursuant to the NYC’s more-favorable-right provision in Article VII(1) NYC, the less stringent requirements Section 1064 of the German Civil Procedure Code were applicable instead of those in Article IV(1) NYC. The Oberlandesgericht rejected the Respondent’s argument that the arbitration agreement was invalid (Article V(1)(a) NYC), reasoning that the Respondent had not only agreed to the constitution of the arbitral tribunal, the conciliation proceedings and to the tribunal deciding its jurisdiction in an interim award, but had also subsequently engaged in arguments on the merits without challenging the interim award under Article 190(3) read with 190(2)(b) of the Swiss Federal Act on Private International Law. It held that it would be a contradiction of the principle of fair and good conduct of proceedings if the Respondent were allowed, after such conduct, to question the validity of the arbitration agreement at the enforcement stage. The Oberlandesgericht stated that there was no established case law to the effect that the NYC would bar such a preclusion. It also held that, in any case, the Respondent’s defense regarding the absence of a valid arbitration clause was unfounded. It dismissed the Respondent’s public policy objections under Article V(2)(b) NYC stating that the Respondent itself had failed to call the relevant witness to testify on the issue in question and that the alleged bribery payments to Iranian officials had not been proven by the Respondent. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1320&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 21 September 2005 Case number III ZB 18/05 Applicable NYC Provisions VII | VII(1) Source BGH Summary The Claimant initiated arbitration in the Netherlands for the payment of works under a sales contract, and obtained an award in its favor. The Defendant had challenged the tribunal's jurisdiction on the grounds that the Parties had entered into an oral agreement and their alleged arbitration agreement was contained in general conditions copied on sales invoices. The Claimant sought recognition and enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Oldenburg denied recognition on the grounds that there was no arbitration agreement in writing pursuant to Articles V(1)(a) and II(2) NYC. The Claimant appealed to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof held that in matters of recognition and enforcement of foreign arbitral awards, German courts are empowered by Article VII(1) NYC to apply national German law motu propio (without the parties invoking it) if the latter contains more favorable conditions for enforcement. This includes the German conflicts of laws rules, which point to Dutch law as the applicable law to the contract (lex contractus) chosen by the Parties. Pursuant to Dutch case law, a reference in an invoice to standard conditions of contract containing an arbitration clause may validly bind the parties that are in an ongoing business relationship is valid. The Bundesgerichtshof referred the case back to the Oberlandesgericht, which had not addressed this issue. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=278&opac_view=6 Attachment (1)
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Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 26 January 2005 Parties C**** v. C**** Case number 3Ob221/04b Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(e) | V(2) | V(2)(b) | VI | VII | VII(1) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3885&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 23 September 2004 Case number 4 Z Sch 05/04 Applicable NYC Provisions VII | V | VII(1) | V(1)(d) Source DIS
Summary The Parties entered in a service agreement, which the Defendant terminated. The Claimant initiated Court proceedings in Syria. The Syrian court decided in the Claimant's favor. The Defendant's Syrian counsel subsequently agreed to arbitrate the claim in Syria, and that the proceedings would take the Syrian Court decision into account. An award was rendered in the Claimant's favor, who then sought enforcement in Germany. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) granted enforcement. It reasoned that in this case, an objection based on the lack of a written arbitration agreement does not constitute a ground for denying recognition because the objecting party participated in the arbitration without raising any objection to jurisdiction, and also signed a written power of attorney which expressly appointed counsel to represent it in arbitral proceedings. The Court reasoned that German law applies by virtue of the more-favorable-right provision under Article VII(1) NYC, and does not require the party seeking enforcement to also supply the arbitration agreement. In the Court's view, only an essential procedural defect constitutes grounds for refusal of enforcement under Article V(1)(d) NYC, and "essential" in this context means that it caused the tribunal to reach a different decision. Finally, the Court found that the fact that the the Syrian tribunal did not apply German law could not amount to a violation of public policy under Article V(2)(b) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=276&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 20 July 2004 Parties Antilles Cement Corporation v. Transficem Case number ATS 9443/2004 Applicable NYC Provisions II | II(1) | III | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2) | V(2)(b) | VII | VII(1) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4025&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 05 July 2004 Case number 4 Z Sch 09/04 Applicable NYC Provisions VII | VII(1) Source DIS
Summary The Claimant, an Austrian lawyer, commenced arbitration in Austria against the Defendant in connection its alleged non-payment of legal fees. The Parties reached a settlement at the hearing. When the Defendant failed to pay the agreed amount, the Claimant sought enforcement of the settlement agreement in Germany. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) granted enforcement pursuant to the 1959 Austrian-German Treaty, which applies to settlements reached before an arbitral tribunal. The Court considered that the Claimant had also complied with the formal requirements for enforcement under the NYC. The less stringent German requirements for enforcement applied in accordance with the more-favorable-right provision at Article VII(1) NYC. The Claimant had supplied a copy of the minutes of the arbitral hearing where the settlement agreement was concluded and recorded, which was certified by the Tyrol Bar Association and the president of the arbitral tribunal. The authenticity of the settlement agreement reached in the presence of both Parties was undisputed. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=275&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 10 June 2004 Parties Société Bargues Agro Industries v. Société Young Pecan Company Case number 2003/09894 Applicable NYC Provisions V | V(1) | V(1)(e) | VI | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary An arbitral award was rendered in Antwerp (Belgium) on 28 June 2002 in favor of a US company (Young Pecan). In an order issued on 7 April 2003, the President of the Tribunal de Grande instance de Paris (First Instance Court of Paris) allowed the enforcement of the award in France. Appealing this decision, the opposing party (Bargues) requested a stay of proceedings pending an application to set aside the award that had been made before the First Instance Court of Antwerp in accordance with Article VI NYC. Alternatively, Bargues argued that (i) the arbitration agreement was null and void (Article 1502 1° of the Code of Civil Procedure), since the confirmation orders containing the arbitration clause had been signed by an unauthorized employee, (ii) the arbitral tribunal had not been properly constituted (Article 1502 2°) given that the Chairman lacked independence, and (iii) the enforcement of the award would have been contrary to international public policy (Article 1502 5°). The Cour d'appel de Paris (Paris Court of Appeal) refused to suspend proceedings and confirmed the enforcement order. Regarding the suspension of proceedings, the Cour d'appel de Paris reasoned that pursuant to Article VII NYC, Article 1502 of the Code of Civil Procedure (which, as opposed to Article V(1)(e) NYC, does not list the setting aside of an award as a ground for refusing its recognition and enforcement in France) was applicable. It then noted that given that the award was rendered in the context of an international arbitration, and as such was not anchored in the national legal order of Belgium, the potential setting aside of the award in the country of origin does not impact the existence of the award in a way that would prevent its recognition and enforcement in other national legal order. As a result, the Cour d'appel de Paris held that Article VI NYC, which refers to Article V NYC by authorizing the court in charge of the enforcement of the award to suspend proceedings, is of no use in the context of the recognition and enforcement of an award under Article 1502 of the Code of Civil Procedure. It then dismissed the other grounds for refusing the enforcement of the award in France. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=165&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Köln (Higher Regional of Köln) Date 23 April 2004 Case number 9 Sch 01/03 Applicable NYC Provisions VII | V | VII(1) | V(2)(b) Source DIS Summary This case concerned one of three awards rendered in 2002 by International Commercial Arbitration Court in Russian Federation (ICAC). The dispute involved a sales contract concluded by the Parties. The Oberlandesgericht (Higher Regional Court) Köln granted enforcement, finding that under Article VII(1) NYC, the more favourable provisions of German law apply, pursuant to which there is no requirement for the Claimant to submit a translation of the award. There was no violation of public policy justifying non-recognition under Article V(2)(b) NYC. The Oberlandesgericht considered that there must be a causal link between the award and the violation of public policy, i.e., a violation of minimum standards of procedural justice and the award must be based on that violation. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=274&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 25 September 2003 Case number III ZB 68/02 Applicable NYC Provisions VII | IV | VII(1) | IV(1) Source DIS Summary The Hanseatisches Oberlandesgericht (Higher Regional Court) Hamburg granted enforcement of an award rendered in Sweden. The Claimants had submitted a certified copy of the agreement containing the arbitration clause and the arbitral award, as well as certified translations of the arbitration clause and the arbitral award into German. The Defendant filed an appeal on a points of law before the Bundesgerichtshof (Federal Supreme Court) alleging that the Oberlandesgericht Hamburg erred in relying directly on the German provisions concerning the formal requirements for enforcement, rather than those requirements under the NYC. The Bundesgerichtshof held that Article VII(1) NYC allows states to apply domestic provisions regarding the enforcement of foreign awards to the extent that they are more favorable than the provisions of the NYC. This was the case here since there were no specific requirements for the certification of the translations of the arbitration agreement or the arbitral award under German law. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / d. Multiple enforcement regimes permissible / §13
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / b. Documents specified under article IV(2) / §20
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=269&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 18 September 2003 Case number 8 Sch 12/02 Applicable NYC Provisions VII | V | II | VII(1) | V(1)(a) | II(1) Source DIS Summary The Parties concluded a sales contract. The Defendant allegedly refused to pay part of contract price and the Claimant commenced arbitration in London. The London Commercial Court appointed a sole arbitrator after the parties failed to reach an agreement concerning the constitution of the tribunal. The arbitrator assumed jurisdiction over the dispute based on the INTERORE general conditions of contract, which contained an arbitration clause. The Claimant obtained a favorable award and sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Celle denied enforcement, finding no valid arbitration agreement within the meaning of Article II of the NYC, as the parties had neither signed nor mentioned the INTERORE conditions when concluding the sales contract at issue. The writing requirement under the NYC was not superseded by the requirements under German law pursuant to Article VII(1) NYC, since German law requires at least that the Claimant make a written reference to its general conditions when concluding a contract. The Court reasoned that the existence and formal validity of the arbitration agreement should to be assessed independently by the enforcement court when examining the grounds for refusal at Article V(1)(a) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=268&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Schleswig Date 15 July 2003 Case number 16 Sch 01/03 Applicable NYC Provisions VII | VII(1) Source DIS Summary The Parties concluded two sales contracts which each contained a clause for arbitration of all disputes at the International Commercial Arbitral Tribunal at the Chamber of Commerce and Industry of Ukraine. A dispute arose concerning the Buyer's performance. The Seller initiated arbitration proceedings and the Buyer did not appear. The Seller obbtained a favorable award and sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) Schleswig. The Oberlandesgericht Schleswig granted enforcement, finding that the Seller had met the formal requirements for seeking enforcement under German law, which applied on the basis of the most-favorable-right provision at Article VII(1) NYC. It considered that there were no grounds for refusal to be examined ex officio. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=266&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 12 December 2002 Case number 4 Z Sch 16/02 Applicable NYC Provisions VII | II | VII(1) | II(2) | II(1) Summary The Parties entered into negotiations in September 1999 for the export of products from Yugoslavia to Germany. The Claimant allegedly informed the Defendant by telephone that its general conditions provided for arbitration before the Foreign Trade Court of Arbitration (at the Yugloslav Chamber of Commerce). Further negotiations followed and the Claimant made three deliveries. The Claimant drew up the contracts by photocopying its contractual details onto a blank sheet bearing the Defendant's letterhead. The letter contained the Defendant's signature and seal as well as the Claimant's own signature and seal. The Contracts were faxed to the Defendant, who neither confirmed nor contested them. A dispute arose when the Defendant refused to pay the purchase price for goods that were allegedly unsaleable. The Claimant initiated arbitration in Belgrade, the Defendant failed to appear and an award was rendered in the Claimant's favor. The Bayerisches Oberstes Landesgericht (Higher Regional Court Bavaria) denied enforcement, finding that the requirements under Article II(2) NYC had been not fulfilled as there was no "agreement in writing" as neither the requirement of "signature" nor "exchange of letters or telegrams" had been fulfilled. According to the Court, the essential factor in exchange of written statements under the NYC is mutuality, which was lacking in the faxed contracts. It considered that in principle, German law should apply to this question as a result of the the most-favored-right rule under Article VII(1) NYC. However, German law requirements and requirements under the NYC were equivalent. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=264&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 04 December 2002 Parties Société American Bureau of Shipping (ABS) v. Copropriété Maritime Jules Verne et al Case number 2001/17293 Applicable NYC Provisions II | V | V(1) | V(1)(a) | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary A US company (ABS) proceeded in 1992 to the classification of a ship (Tag Heuer) at the request of its constructor (Tencara). ABS' Specific Conditions, containing an arbitration agreement (which provided for arbitration in New York), were attached to the classification request. Tencara proceeded with payment and each invoice referred to ABS' General Conditions containing the arbitration agreement. The ship was then damaged. At the request of the insurance companies, an expert determination was ordered by the Tribunal de Grande Instance de Paris (First Instance Court of Paris), which held ABS partially responsible. The owner of the ship (the Jules Vernes co-ownership) and the insurance companies commenced proceedings before the Tribunal de Commerce de Paris (Commercial Court of Paris), which found that it had jurisdiction over the dispute. In the meantime, ABS initiated arbitral proceedings in New York against the Jules Vernes co-ownership and the insurance company of Tag Heuer, after a decision of the Federal Court of Appeal declared that they were bound by the arbitration agreement. ABS challenged the decision of the Tribunal de Commerce de Paris and of the Cour d'appel de Paris (Paris Court of Appeal) which had upheld that French Courts had jurisdiction to hear the dispute. The Cour de Cassation (Supreme Court) reversed the decision of the Cour d'appel de Paris on the ground that it had failed to establish that the arbitration agreement was manifestly null and void, which constitutes the only exception to the principle according to which arbitrators have jurisdiction to decide on their own jurisdiction and to rule on the existence, validity and applicability of an arbitration agreement. The case was remanded before the Cour d'appel de Paris. ABS invoked the principle of Compétence-Compétence and argued that there was no need to refer to the NYC. The Jules Verne co-ownership argued that article II NYC should prevail over Article 1458 of the Code of Civil Procedure and that the conditions provided under Article II NYC were not met since the arbitration arbitration was not applicable to it. It also claimed that there was a risk of denial of justice given that, according to the US Federal Arbitration Act, the arbitrators cannot rule on their own jurisdiction. The Cour d'appel de Paris reasoned that Article VII 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 this provision necessarily applies in the context of Article II NYC given the link between Article II NYC and Article V(1)(a) on the validity of an arbitration agreement. It also explained 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 which, as opposed to Articles II and V NYC on the formal requirement of an arbitration agreement, establish the validity of an arbitration agreement irrespective of any reference to domestic law. It further noted that the principle according to which arbitrators have priority to rule on the validity of an arbitration agreement is not provided under Article II NYC which only requires the court of a Contracting State to refer the parties to arbitration, unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. On the basis of these principles of French law, the Cour d'appel de Paris held that a French court may not proceed to an in-depth analysis of the arbitration agreement, the only exception being that the court may review the arbitration agreement in order to determine whether it is manifestly void or inapplicable. In the case at hand, it held that, in light of the complex facts of the case, the arbitration agreement could not be considered as manifestly void or inapplicable and therefore it found that it did not have jurisdiction over the dispute and referred the parties to arbitration. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=163&opac_view=6 Attachment (1)
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Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 22 May 2002 Parties Stephen and Mary B**** Foundation Inc. v. A**** Aketiengesellschaft, H**** GmbH, André H****, Stefan S**** Case number 3Ob18/02x Applicable NYC Provisions III | VII | VII(1) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3888&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Rostock Date 22 November 2001 Case number 1 Sch 03/00 Applicable NYC Provisions VII | V | II | VII(1) | V(2)(b) | II(1) Source DIS Summary The Parties negotiated a sales contract in 1997. The Claimant allegedly sent a fax to the Defendant confirming the sales agreement and mentioning “arbitration to be subject to LME (London Metal Exchange) rules and regulations”. Then, the Claimant allegedly sent a fax confirming further sales and containing clause reading "arbitration by LME under English law normal force majeure terms to rule." The original letter was allegedly sent to the Defendant by mail. The Defendant refused to accept or pay for goods shipped by the Claimant. The Claimant commenced arbitration at the LME and obtained favorable award. The award was later declared enforceable by the High Court in London, which also denied the Defendant's motion to set aside. The Claimant sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Rostock denied enforcement, finding that the Claimant had failed to comply with the formal requirement under Article IV(1) NYC to provide the original arbitration agreement or certified copy thereof. In its reasoning, the Claimant could not rely on less stringent requirements of German law - according to which the enforcement of domestic award does not require supplying an arbitration agreement - because international treaties supersede German law on questions related to foreign awards pursuant to Section 1064(III) of the German Code of Civil Procedure. In any event, the more-favorable-right rule under Article VII(1) NYC does not concern formal requirements under the NYC. The Court further considered that there existed grounds for non-enforcement under Article V(1)(a) NYC, since there was no valid arbitration agreement between the Parties within the meaning of Article II NYC. Even if the more-favorable-right rule applied as a matter of principle, in the case at hand, the requirements under German law had not been met. The Court further considered that the enforcement of the award would violate German public policy pursuant to Article V(2)(b) because it would entail that the Defendant had not submitted to the judgment of the arbitral tribunal by its free will. Finally, the Court found that the Claimant was not estopped from raising grounds for non-enforcement because it did not challenge the award for lack of jurisdiction before the juge d'appui. In this case, the tribunal had assumed jurisdiction in an arbitrary manner and without any justification in the parties' agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=258&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 Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 11 August 2000 Case number 4 Z Sch 05/00 Applicable NYC Provisions VII | IV | IV(2) | VII(1) Source DIS
Summary The Parties concluded a construction contract and by additional agreement agreed to refer disputes to arbitration in Moscow. The Claimant obtained a favorable award and sought enforcement in Germany. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) granted enforcement, finding that the Claimant had complied with the formal requirements under German law (which applied pursuant to the most-favorable-right provision under Article VII(1) NYC), which requires that the Claimant supply the award or a certified copy thereof together with the request for enforcement. Under German law, the arbitration agreement and the translations mentioned in Article IV(2) NYC need not be supplied. see also :
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / b. Documents specified under article IV(2) / §20
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / a. Documents specified under article IV(1) / §17
- IV / 2. ANALYSIS (IV) / A. The requirement that the applicant provide the arbitration agreement 'referred to in article II' / §66
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=252&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Rostock Date 28 October 1999 Case number 1 Sch 03/99 Applicable NYC Provisions VII | V | VII(1) | V(1)(e) Source DIS Summary The Claimant sought to enforce in Germany an award rendered by the Maritime Arbitration Commission in Moscow. In the meantime, the award was set aside by the Moscow City Court and Moscow Court of Appeal. The Oberlandesgericht (Higher Regional Court) Rostock held that that German law does not condition the admissibility of a request for recognition on the submission of an arbitration clause, and so this more favorable law applied pursuant to Article VII(1) NYC. The Oberlandesgericht nevertheless denied recognition pursuant to Article V(1)(e) NYC, holding that a declaration of enforcement requires that the foreign award has become binding according to the law applicable to it, and that there are no further means of appeal against it before appellate arbitral tribunals or State courts. Here, the award was no longer "binding" because it had been set aside in its State of rendition. Even though the Russian court decisions were subject to further appeal, this was irrrelevant according to the second alternative under Article V(1)(e) NYC (..."or suspended"). Decision reversed by Bundesgerichtshof (Federal Supreme Court) on 22 February 2001 (see link below). affirmed by : affirms : see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / c. Domestic law more favourable than article V(1)(e) / §47
- IV / 2. ANALYSIS (IV) / ARTICLE IV(1)(a) / c. Whether certification must be of an authenticated original award / §60
- IV / 2. ANALYSIS (IV) / ARTICLE IV(1)(a) / b. Competent authority / §53
- IV / 2. ANALYSIS (IV) / ARTICLE IV(1)(a) / b. Competent authority / §54
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=247&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 02 April 1998 Parties Compagnie française d'études et de construction Technip (Technip) v. Entreprise nationale des engrais et des produits phytosanitaires (Asmidal) Case number 97/6929 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(2) | V(2)(b) | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary An ICC award was rendered in Zurich on 8 July 1996 in favor of an Algerian Company (ASMIDAL). In an order issued on 6 January 1997, the President of the Tribunal de Grande Instance de Paris allowed enforcement of the award in France. Appealing this decision, the losing party (Technip) argued that the enforcement order should be overturned pursuant to Article 1502 of the Code of Civil procedure given that (i) the arbitral tribunal had wrongly upheld jurisdiction, (ii) the arbitral tribunal had not properly been constituted, (iii) the arbitral tribunal had not complied with the mandate conferred upon it, (iv) due process had been violated, and (v) recognition and enforcement was contrary to international public policy. In response, ASMIDAL claimed that only the provisions of the NYC should be applied. The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order and dismissed the action. It first reasoned that the procedure pertaining to the enforcement of the award in France is subject to the conditions set forth by both the NYC, ratified by France and Switzerland, and French rules on enforcement of awards. It added that the control of the regularity of an award by French Courts in order to allow its integration in French legal order may be based on either the NYC or French law (notably, Articles 1498 and 1502 of the Code of Civil Procedure); while noting that pursuant to Article VII NYC, the provisions of French law which are more favorable to the enforcement of the award must prevail. It then dismissed each claim for refusing enforcement of the award, after noting that the provisions of French law invoked (Article 1502 of the Code of Civil Procedure) are similar to that of the NYC. In this respect, the Cour d'appel de Paris held that (i) Article V(1)(a) NYC and Article 1502 1° (on whether the arbitral tribunal ruled without an arbitration agreement or on the basis of an arbitration agreement which was null and void) address similar situations, (ii) Article V(1)(b) NYC and Article 1502 4° (violation of due process) have the same scope, except that the latter refers to the principles of French law in an international context, (iii) Article V(1)(c) NYC and Article 1502 3° (as to the obligation of the arbitral tribunal to comply with the mandate conferred upon it) have the same scope, and (iv) Article 1502 includes the same provisions as Article V(1)(d) NYC (regarding the constitution of the arbitral tribunal). Lastly, it ruled that Article 1502 5° (as to the violation of international public policy) is in "perfect harmony" with Article V(2)(b) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=153&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 16 October 1997 Parties Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar (ASECNA) v. M. Issakha N'Doye Case number 96/84842 Applicable NYC Provisions V | V(1) | V(1)(e) | V(2) | V(2)(a) | V(2)(b) | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary An individual was hired on 16 September 1985 by the ASECNA (Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar). Following his dismissal, the individual commenced arbitration pursuant to the arbitration agreement contained in his employment contract. An award was rendered in August 1994 in Senegal in his favor. 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. Appealing this decision, ASECNA argued that (i) the dispute was not capable of settlement by arbitration and that the enforcement order would be contrary to the French conception of international public policy, (ii) the award was not final since there was a pending action before the Dakar Court of Appeal and thus the recognition and enforcement of the award should be refused in accordance with Article 5(1)(e) NYC, and (iii) it benefited from immunity of jurisdiction and execution. The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order and dismissed the action. It first noted that the France-Senegal Convention on Judicial Cooperation of 29 March 1974, provided that the recognition and enforcement of awards rendered in these countries shall be granted in accordance with the provisions of the NYC. It then reasoned that Article V(2)(b) refers to the conception of international public policy of the country where enforcement in sought and not to internal public policy of that country. On this basis, it found that, even though employment dispute fall under the exclusive jurisdiction of the Conseils de Prud'hommes (Employment Tribunal) under French law, the fact that this dispute was settled by arbitration was not contrary to the fundamental principles of the French conception of international public policy. As to the fact that the award was not final, the Cour d'appel de Paris reasoned that since the France-Senegal Convention on Judicial Cooperation refers to the NYC, the Contracting Parties had implicitly consented to the exception under Article VII NYC which provides that the provisions of the NYC may not deprive a party of any right it may have 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 Court may only refuse enforcement in the limited number of situations listed at Article 1502 of the Code of Civil Procedure, which does not include the situation set forth at Article V(1)(e) NYC, and that given that the award rendered in Senegal is an international award which is not anchored in the legal order of that country, its existence is not affected by the outcome of the appeal initiated before local courts and therefore its recognition and enforcement in France was not contrary to international public policy. Lastly, the Cour d'appel de Paris ruled that ASECNA had waived its immunity of jurisdiction by consenting to arbitration and that, given that the enforcement procedure of an award does not constitute an enforcement measure, the recognition and enforcement of the award does not affect ASECNA's immunity of execution. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=149&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 14 January 1997 Parties République arabe d'Egypte v. Société Chromalloy Aero Services Case number 95/23025 Applicable NYC Provisions V | V(1) | V(1)(e) | VI | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary On 16 June 1988, the Arab Republic of Egypt and a US company (Chromalloy) entered into a contract for the supply of material, services and technical assistance for the management and maintenance of military aircraft. Following the termination of this agreement by the Arab Republic of Egypt, Chromalloy initiated arbitration proceedings as provided by the parties in the contract. An award was rendered on 24 August 1994, in Cairo in favor of Chromalloy. In an order issued on 4 May 1995, the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France, whereas the enforcement of the award had been stayed and eventually set aside by the Cairo Court of Appeal. The Arab Republic of Egypt filed an appeal against the enforcement order. It contended that (i) the enforcement order violated the provisions of both the France-Egypt Convention on Judicial Cooperation of 15 March 1982 and the NYC, (ii) the arbitral tribunal did not comply with the mandate conferred upon it (Article 1502 3° of the Code of Civil Procedure), violated due process (Article 1502 4°) and that the recognition and enforcement of the award was contrary to international public policy (Article 1502 5°). The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order and dismissed the appeal. It first noted that the France-Egypt Convention on Judicial Cooperation provides that the recognition and enforcement of awards rendered in these countries shall be granted in accordance with the provisions of the NYC. In light of this general reference to the NYC, it reasoned that the Contracting States have implicitly consented to the exception under Article VII NYC which provides that the provisions of the NYC may not deprive a party of any right it may have 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 at Article 1502 of the Code of Civil Procedure, which does not include the situation set forth in Article V NYC invoked by the Arab Republic of Egypt, and that given that the award rendered in Egypt was an international award which, by definition, is not anchored in the legal order of that State, its existence was not affected by its setting aside and therefore the recognition and enforcement of this award in France was not contrary to international public policy. The Cour d'appel de Paris then dismissed the other claims based on Article 1502 of the Code of Civil Procedure. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=147&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 31 October 1996 Parties X v. Fédération équestre internationale Case number 4C. 44/1 996 Applicable NYC Provisions II | II(3) | VII | VII(1) Source Original decision obtained from the registry of the Tribunal Fédéral
Languages English Summary An equestrian was suspended by the International Equestrian Federation (IEF) for illegal drug use. He filed an action before the Tribunal de première instance of Lausanne (Court of First Instance) to annul the suspension. The IEF objected to the jurisdiction of the Tribunal of Lausanne based on an arbitration agreement providing for such disputes to be resolved before the Court of Arbitration for Sport (CAS). The Tribunal of Lausanne subsequently referred the parties to arbitration. The equestrian lodged a reform appeal (recours en réforme). The Tribunal Fédéral (Federal Tribunal) affirmed the decision of the Tribunal of Lausanne. It considered that the NYC did not apply to the present case because the seat of the arbitral tribunal would be in Switzerland. It added that had the NYC been applicable, the Swiss Private International Law would still apply to determine the validity of the arbitration agreement because Article VII(1) NYC allows the application of a more favorable law. The Tribunal Fédéral analyzed the validity of the arbitration agreement under the Swiss Private International Law Act and held the arbitration agreement to be valid. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=912&opac_view=6 Attachment (2)
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