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France / 23 January 1991 / France, Cour d'appel de Versailles / Société Bomar Oil N.V. v. Entreprise tunisienne d'activités pétrolières (ETAP) / 10988/89
Country France Court France, Cour d’appel de Versailles (Court of Appeal of Versailles) Date 23 January 1991 Parties Société Bomar Oil N.V. v. Entreprise tunisienne d'activités pétrolières (ETAP) Case number 10988/89 Applicable NYC Provisions I | II | II(1) | II(2) | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Versailles
Summary By an exchange of telexes in August 1983, a Tunisian public entity (ETAP) and a company registered in the Netherland 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 by arguing that it had not consented to any arbitration agreement. An award was rendered on 25 January 1985, whereby the arbitral tribunal rejected the objection to jurisdiction. Bomar Oil initiated 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. The Cour d'appel de Paris dismissed the action, but this decision was then overturned by the Cour de Cassation (Supreme Court) which held that it violated Article II(1) and II(2) NYC to the extent 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. The case was then remitted before the Cour d'appel de Versailles (Versailles Court of Appeal), whereby Bomar Oil contended again that it had not consented to any arbitration agreement and requested that the award be set aside pursuant to Article II NYC. The Cour d'appel de Versailles dismissed Bomar Oil's action to set aside the award. It reasoned that although the NYC applies to the recognition and enforcement of arbitral awards (Article I NYC), it is also applicable in the context of an action to set aside an award where the validity and existence of the arbitration agreement is challenged (and notably Article II NYC). Pursuant to Article VII NYC, it held that French Courts, where seized upon an action to set aside the award, should not apply the provisions of the NYC when that of French international arbitration law are more favorable with respect to the validity of the arbitration agreement. The Cour d'appel de Versailles then noted that both French law and the NYC require an agreement to be in writing and none exclude the possibility that the arbitration agreement be contained in a document to which reference is made in the main agreement, insofar as it can be demonstrated that the party against which the arbitration agreement is invoked was aware of the arbitration agreement at the time the main agreement was entered into. In the case at hand, the Cour d'appel de Versailles found that Bomar Oil had accepted ETAP's conditions and received the "ETAP standard contract" in a meeting on 22 August 1983. It thus held that Bomar Oil was bound by the arbitration agreement. affirmed by : follows : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=133&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 29 June 1989 Case number 6 U (Kart) 115/88 Applicable NYC Provisions VII | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Frankfurt Languages English Summary Following arbitration proceedings administered in Moscow by the Maritime Arbitration Commission at the USSR Chamber of Commerce and Industry in Moscow (MAC), a Soviet party obtained a favourable award in a shipping dispute against a German party. Enforcement was granted in Germany by the Landgericht (Regional Court) Kassel. The German party appealed the decision to the Oberlandesgericht (Higher Regional Court) Frankfurt, arguing, inter alia, that it had been coerced against its will to enter into the arbitration agreement with the Soviet party. The Oberlandesgericht dismissed the appeal and confirmed the Landesgericht’s decision that the award was enforceable in Germany. The Oberlandesgericht found that the Soviet party was allowed to seek enforcement not only under the German-Soviet Agreement on General Matters of Trade and Navigation of 1958, but also under more-favourable provisions under German domestic law. The Oberlandesgericht noted that the most-favourable right principle was explicitly set out in Article VII(1) NYC to which both Germany and the Soviet Union were parties. It further held that the principle is applicable not only in relation to treaties, but also in relation to domestic law since no party should be denied enforcement of an arbitral award based on a treaty when the relevant domestic law allows enforcement Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=927&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 Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 10 May 1984 Case number III ZR 206/82 Applicable NYC Provisions VII | VII(1) Source BGH Summary This is one of two decisions handed down by the Bundesgerichtshof (Federal Supreme Court) in 1984 by which it accepted the American doctrine of merger in Germany (for the other decision, see link below). The Petitioners obtained a favorable award under the American Arbitration Association Rules. The New York Supreme Court confirmed the judgment and declared it enforceable, and dismissed the Respondent's recourse against the judgment. The German Court of First Instance and Oberlandesgericht (Higher Regional Court) Karlsurhe declared the award enforceable. The Bundesgerichtshof granted the Petitioners the choice between having either the exequatur judgment or the award declared enforceable where an award is rendered in a jurisdiction following the doctrine of merger. It held that a party who has obtained a leave for enforcement in the country of origin of the arbitral award, has for the recognition and enforcement a choice between the arbitral award and the judgment declaring the award enforceable, even if the award had merged into the judgment (the doctrine of merger in Anglo-American law). The Court reasoned that the effect of a such decision of a foreign court could not exclude the enforcement of the award under the relevant provision of the German Civil Procedure Code. German law was applicable, reasoned the Court, in virtue of the more-favorable-right provision at Article VII(1) NYC. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=218&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 14 March 1984 Parties Denysiana SA v. Jassica SA Case number 110 Ib 191 Applicable NYC Provisions I | I(3) | V | V(1) | V(1)(e) | VII | VII(1) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary Jassica sought enforcement in Switzerland of an arbitral award rendered against Danysiana in Paris. Both the Tribunal de Première Instance de Genève (First Instance Tribunal of Geneva) and the Cour de Justice de Genève (Court of Justice of Geneva) granted enforcement of the award. Denysiana appealed to the Tribunal Fédéral (Federal Tribunal). The Tribunal Fédéral confirmed the decision of the Cour de Justice de Genève. It noted that France and Switzerland are bound by the Treaty on Jurisdiction and Enforcement of Judgments in Civil Matters dated 15 June 1869 (“the Bilateral Treaty”) and the NYC, both of which contain provisions regarding enforcement of arbitral awards rendered in another country. The Tribunal observed that Article IV NYC requires that the party seeking enforcement produce the original award and the arbitration agreement or a copy certified thereof. In the present case, Jassica had filed the arbitral award, along with the decision of the Court of Appeal of Paris denying the application to have the award set aside and a certificate from the Cour de cassation confirming the decision of the Paris Court of Appeal. The Tribunal Fédéral also noted that Article VII(1) provides that the NYC “shall not affect the validity of multilateral or bilateral agreements concerning the recognition or enforcement of arbitral awards entered into by Contracting States”. It held that it was therefore allowed for Contracting States to derogate from the NYC by the adoption of stricter or more liberal rules. Noting that the NYC was concluded long after the Bilateral Treaty, adding that its adoption had the purpose of facilitating recognition and enforcement of arbitral awards, the Tribunal Fédéral concluded that both Switzerland and France had intended that parties benefit from more favorable conditions, pursuant to the principle of maximum effectiveness. The party opposing enforcement, Denysiana, alleged that it was not served proper notice of the decision of the Cour de cassation and thus, based on the NYC, the decision was inapplicable to it. The Tribunal Fédéral ruled that pursuant to Article V(1)(e) NYC, it is for the party opposing enforcement to prove that the award is not binding, and nothing on the record showed that the award was not final between the parties. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=561&opac_view=6 Attachment (2)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 09 March 1978 Case number III ZR 78/76 Applicable NYC Provisions VII | VII(1) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary A Dutch seller of potatoes (the Seller) initiated arbitration proceedings against two German producers of French fries (the Buyers) based on an alleged sales agreement between the parties that provided for arbitration under the Rules and Usages of Intra-European Trade in Potatoes (RUCIP) in Hamburg. The arbitral tribunal dismissed the Seller’s claims based on the absence of a valid arbitration agreement. The Seller then appealed to an appellate arbitral tribunal as per the RUCIP, seated in Brussels, which modified the previous award and rendered an award in favor of the Seller. The arbitration award was declared enforceable by way of an order (“ordonnance”) by the President of the First Instance Court in Brussels. Upon application by the Seller, the Landgericht (Regional Court) Duisburg granted enforcement of the award. The Buyers lodged an objection to the declaration of enforceability on the grounds that no contract or arbitration clause existed between the parties. The Landgericht rejected the objection and confirmed its declaration of enforceability by way of a court judgment. The Buyers appealed – unsuccessfully – to the Oberlandesgericht (Higher Regional Court) Düsseldorf, and subsequently, on points of law only, to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof upheld the decision of the lower courts stating that enforcement was governed by the German-Belgian Treaty concerning the Reciprocal Recognition and Enforcement of Judicial Decisions, Arbitral Awards and Official Documents in Civil and Commercial Matters of June 30, 1958, (“the Treaty”), which was applicable to arbitral awards rendered within the territory of the contracting parties to the Treaty. As the appellate arbitral tribunal had been seated in Brussels, the Treaty was applicable to the award. However, the Bundesgerichtshof went on to say that, under Article 16 of the Treaty, the NYC, amongst others, might also be applicable, but found that it did not need to decide the interrelationship of such other treaties and the German-Belgium Treaty since the latter was more favorable for a party that sought enforcement in Germany of an arbitral award rendered and granted enforcement in Belgium. It held that Article VII NYC permitted the enforcing court to apply the more favorable rule in the bilateral treaty. The Bundesgerichtshof concluded that under the German-Belgium Treaty there existed no grounds to refuse enforcement of the arbitral award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1336&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 12 February 1976 Case number III ZR 42/74 Applicable NYC Provisions VII | V | II | VII(1) | V(1)(c) | II(2) | II(1) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary In relation to a dispute regarding a sale purchase agreement for lard, the Seller obtained a favourable award from the Arbitration Commission of the Chamber of Commerce of the Romanian People’s Republic. The Buyer had refused to participate in the arbitration proceedings, arguing that the 6-month time limitation contained in the arbitration clause had lapsed. The Seller subsequently sought enforcement of its award in Germany, but the Landgericht (Regional Court) Frankfurt refused enforcement. The Oberlandesgericht (Higher Regional Court) Frankfurt confirmed the refusal and annulled the award, finding that the arbitrators had breached the terms of the arbitration agreement regarding the 6-month statute of limitations (giving rise to a non-enforcement ground under Article V(1)(c) NYC) and that the arbitral tribunal’s lack of jurisdiction constituted an “extreme case” justifying both refusal of enforcement and annulment. The Bundesgerichtshof (Federal Supreme Court) did not agree with the Oberlandesgericht’s decision on enforcement and remanded the case back to the Oberlandesgericht for reconsideration. It also reversed the annulment of the award, holding that an award falling under the NYC i.e. made in the territory of another Contracting State, may be annulled by a German court only if the award had been made pursuant to German law (which was not the case here). The Bundesgerichtshof held that the parties had validly concluded an arbitration agreement in writing as required by Articles II(1) and II(2) NYC. Although the arbitration clause was only contained in the General Conditions for the Sale and Delivery, it was inserted by the parties’ representatives in the signed contract itself, or at least attached to it as an exhibit. However, in relation to the scope of the arbitration agreement and the six-month time limit, the Bundesgerichtshof held that the arbitration clause was ambiguous and that the jurisdiction of the arbitral tribunal after the six-month period was not explicitly excluded. The Bundesgerichtshof held that the facts discussed by the Oberlandesgericht did not allow for the conclusion that the arbitral tribunal had arbitrarily – and without any basis in the contractual provisions – assumed jurisdiction over the dispute. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=926&opac_view=6 Attachment (1)
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Country Germany Court Germany, Landgericht Bremen Date 16 December 1965 Case number 12-OH 2/1965 Applicable NYC Provisions VII | II | VII(2) | VII(1) | II(2) Source Original decision obtained from the registry of the Landgericht Bremen Languages English Summary The Buyer imported honey from the Seller. Following a request from the Buyer, the Seller shipped certain quantities of honey and asked the Buyer to sign a contract calling for the resolution of all disputes in accordance with the Arbitration Rules of the Dutch Association for the Trade in Tropical Fruit and Spices. The Buyer did not sign the contract form, and informed the Seller that it would refuse the goods and not make the payment. The Seller obtained a favourable arbitral award against the Buyer in Rotterdam and sought enforcement in Germany. The Landgericht (Regional Court) Bremen denied the Seller’s request to declare the award enforceable under Article V(1)(a) NYC for lack of an arbitration agreement in writing. The Landgericht noted that Article II(2) NYC required the arbitration agreement to take the form of a clause in a contract or otherwise be signed by the parties or contained in an exchange of letters or telegrams. It considered that the Seller’s form contract containing the arbitration agreement, however, had not been accepted by the Buyer. The Landgericht further held that pursuant to Article VII (2) NYC, the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 did not apply because that treaty had ceased to have legal effect for both Germany and the Netherlands from when the NYC became binding on both countries. The Landgericht, however, found that German procedural law could apply in accordance with Article VII(1) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=917&opac_view=6 Attachment (1)
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