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Switzerland / 15 April 1999 / Switzerland, Cour de Justice de Genève / R S.A. v. A Ltd.
Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 15 April 1999 Parties R S.A. v. A Ltd. Applicable NYC Provisions IV | IV(1) | IV(1)(a) Source Original decision obtained from the registry of the Cour de Justice de Genève
Languages English Summary On 5 June 1996, A and R entered into a sales contract providing for arbitration pursuant to the rules of CIETAC of the China Council for the Promotion of International Trade (the “Chinese Commission for Arbitration” or “CCA”). A dispute arose between the parties and the CCA rendered an award in A’s favor. A sought to enforce the award in Switzerland by providing to the Tribunal de Première Instance of Geneva (Geneva Tribunal of First Instance) a copy of the contract, the original award in Chinese with a complete translation in French, of which the first and the last pages were sworn to be in conformity with the original. The Tribunal de Grande Instance granted enforcement of the award. R appealed and challenged enforcement on the grounds that A had not complied with Article IV NYC. It argued that A had only supplied the Tribunal de Première Instance with a non-certified copy of the main contract (containing the arbitration agreement), the original award in Chinese and a French translation of the award that was certified on the first and last pages only. The Cour de Justice de Genève (Court of Justice of Geneva) dismissed the appeal. It held that pursuant to Article 194 of the Swiss Private International Law, the NYC was applicable to the recognition and enforcement of awards rendered abroad, regardless of whether the State where the award had been rendered was a party to the NYC. The Cour de Justice stated that the formal requirements of Article IV NYC should be construed in a flexible manner. It recalled that the NYC was meant to improve recognition and enforcement of arbitral awards, and in particular, the party seeking enforcement only needed to comply with Article IV NYC, after which the burden shifts to the party opposing enforcement to prove a ground for denial of enforcement. The Cour de Justice held that the party seeking enforcement must at least provide the arbitration agreement and the arbitral award. It noted that R had admitted that A had submitted the original copy of the award and that although the translation the first and last pages of the award were certified, these were the most crucial pages since they established the identity of the parties and contained the final decision of the arbitral tribunal. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=931&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 09 April 1998 Case number 14.97.00075 Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary A payment order was issued in 1994 by the Ufficio di esecuzione di Lugano (Debt Collection Office of Lugano) in favor of X. Y raised an objection (opposizione) to the payment order and X requested dismissal (rigetto definitivo) of the objection before the Pretore del Distretto di Lugano (First Instance Court of Lugano), relying on an award rendered in its favor in Geneva on 14 March 1997. In response, Y argued that the award was not yet enforceable, given that the enforcement procedure set forth in the NYC and Articles 192-194 of the Federal Act on Private International Law had not been implemented. The Pretore dismissed Y’s objection, holding that the NYC was not applicable to an award rendered in Geneva. Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) affirmed the decision of the Pretore, holding that the NYC was not applicable in the present case. The Tribunale d’Appello noted that the NYC governed the recognition and enforcement of foreign awards, which were defined as awards rendered by an arbitral tribunal seated abroad irrespective of the nationality of the parties and the applicable law. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1299&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 09 April 1998 Case number 14.97.00076 Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary A payment order was issued in 1992 by the Ufficio di esecuzione di Lugano (Debt Collection Office of Lugano) in favor of X. Y raised an objection (opposizione) to the payment order and X requested a dismissal of the objection (rigetto definitivo) before the Pretore del Distretto di Lugano (First Instance Court of Lugano), relying on an award rendered in its favor in Geneva on 14 March 1997. In response, Y argued that the award was not yet enforceable given that the enforcement procedure set forth in the NYC and in Articles 192 and 194 of the Federal Act on Private International Law had not been implemented. The Pretore dismissed Y’s objection, holding that the NYC was not applicable to an award rendered in Geneva. Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) dismissed the appeal, confirming that the NYC was not applicable in the present case. In this respect, the Tribunale d’Appello noted that the NYC governed the recognition and enforcement of foreign awards, which were defined as awards rendered by an arbitral tribunal seated abroad irrespective of the nationality of the parties or the applicable law. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1298&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Obergericht des Kantons Zug Date 27 February 1998 Case number JZ 1997/104.161 Applicable NYC Provisions II | IV | IV(2) | V Source Original decision obtained from the registry of the Obergericht des Kantons Zug
Languages English Summary A Russian party entered into a sales contract, in both Russian and German, with a Swiss party, which contained an arbitration clause. A dispute arose and the Russian party obtained an arbitration award from the International Commercial Arbitration Court (ICAC) at the Chamber of Commerce and Industry of the Russian Federation, which it sought to enforce at the Kantonsgericht (Cantonal Court) Zug. The Kantonsgericht denied recognition and enforcement, holding that the Russian party had not shown that the German translation of the arbitral award had been certified by an official or sworn translator or a diplomatic or consular agent in accordance with Article IV(2) NYC. The Russian party appealed from the decision to the Obergericht (Higher Cantonal Court) Zug. The Swiss party opposed enforcement on the grounds that the translation of the award provided by the Russian party was not in compliance with Article IV(2) NYC. The Russian party argued that the German translation was prepared by a notary public, which confirmed that the translation corresponded to the original text, and that the translation contained an apostille after the signature of the notary public. The Obergericht dismissed the appeal. After noting that the arbitration agreement was in compliance with Article II NYC, it stated that an enforcement court had to assess ex officio whether the requirements of Article IV NYC were fulfilled. It observed that where the arbitral award was not in an official language of Switzerland, the applicant needed to provide a translation of the award that was certified by an official or sworn translator or by a diplomatic or consular agent in accordance with Article IV(2) NYC. It stated that such a certification only needed to comply with the law at the arbitral seat and that the procedural cantonal law could soften or even eliminate the certification requirement. It noted that the purpose of the translation requirement was to provide the enforcement judge, who was not familiar with the language of the original award, with a secure basis on which to assess not only the defenses raised by the enforcement debtor but also the grounds under Article V(2) NYC, which it needed to consider ex officio. The Obergericht found that the translation provided by the Russian party did not meet the requirements under Article IV(2) NYC because the notary public had not certified the accuracy of the translation, but only the authenticity of the copy of the arbitral award used for the translation. The Obergericht noted that generally a translation made by a third party and certified by a notary public who is capable of understanding the language of the translation – if done properly – would meet the criteria of Article IV(2) NYC. It found that a separate signature of the notary public for a remark in Russian after the translation could not be taken into account because, being in Russian, it could not be understood by the court. It also noted that the apostille could also not effectuate a diplomatic or consular certification of the translation. Finally, the Obergericht stated that its decision that the translation did not fulfill the requirements of Article IV(2) NYC was not overly formalistic given that the Russian party could have easily have obtained and provided a diplomatic or consular certification at the Swiss diplomatic representation in Moscow or at the Russian diplomatic representation in Switzerland. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1419&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Bundesgericht Date 19 December 1997 Parties Compañìa Minera Condesa SA und Compañía de Minas Buenaventura SA v. BRGM-Pérou S.A.S. und Tribunal Arbitral CIA Applicable NYC Provisions II | II(3) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary The second Claimant, the Respondent, and a target company in Peru signed a protocol setting out the modalities under which the second Claimant’s group of companies could participate in the target company. In addition, the parties to the protocol agreed that the bylaws of the target company should be amended to include a pre-emption right for the shareholders in the event that shares of the target company were being sold to a third party belonging neither to the second Claimant’s group of companies nor the Respondent. Both the protocol, and the amended by-laws of the target company, contained an arbitration clause. When the Respondent’s parent company, which had been involved in the discussions about the second Claimant’s participation in the target company, sold a significant number of its shares in the target company to an Australian third party, the second Claimant and the first Claimant filed a lawsuit before the state courts in Lima against both the Respondent and its parent, alleging a violation of the pre-emption right. The Respondent objected to the jurisdiction of the Lima courts based on the existence of an arbitration agreement. The Lima court rejected the defense and declared that it had jurisdiction to hear the case. Meanwhile, the Respondent also initiated arbitration proceedings in Zurich, seeking a declaration that the arbitral tribunal had jurisdiction over the dispute and that the pre-emption right had not been violated. The Claimants raised a lis pendens defense before the arbitral tribunal which it rejected, issuing an interim award affirming its jurisdiction to hear the case. The Claimants then filed a complaint with the Bundesgericht (Swiss Federal Tribunal) reiterating their lis pendens defense. The Bundesgericht dismissed the complaint, holding that pending foreign court proceedings could exclude the jurisdiction of an arbitral tribunal in Switzerland only if a decision of the foreign court could be recognized in Switzerland under Article 25 of the Swiss Private International Law Act, which, required, inter alia, that the foreign court had jurisdiction to decide the dispute in question. The Bundesgericht noted that both Peru and Switzerland were contracting parties to the NYC and that under Article II(3) NYC a contracting party’s court, upon application of one of the parties, was to refer the parties to arbitration if the disputed matter was subject to an arbitration agreement, unless it found that such agreement was null and void, inoperative or incapable of being performed. It further clarified that the court’s jurisdiction would then be derogated to the arbitral tribunal irrespective of whether arbitral proceedings had already been initiated. On that basis, the Bundesgericht concluded that a foreign court, which fails to refer the parties to arbitration even though the conditions of Article II NYC are met, lacks indirect jurisdiction under Article 25 of the Swiss Private International Law Act, and its decision could therefore not be recognized in Switzerland, except if the arbitral tribunal found that it did not have jurisdiction, or if a reviewing court determined that the arbitral tribunal lacked jurisdiction. The Bundesgericht further noted that the Lima court had rejected the arbitration defense primarily on the ground that the dispute involved parties which had not signed the arbitration agreement. It observed that the Lima court could have asserted jurisdiction only in relation to these parties and that the risk of conflicting decisions did not result in making the arbitration agreement void or inoperable under the NYC. The Bundesgericht thus concluded that the Lima court’s decision could not be recognized in Switzerland, unless it were to turn out that the arbitral tribunal had wrongly assumed that it had jurisdiction. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1421&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 11 December 1997 Parties X v. Y Case number C/20312/1997 Applicable NYC Provisions IV | IV(1) | IV(1)(b) | V | V(2) | V(2)(b) Source Original decision obtained from the registry of the Cour de Justice de Genève
Languages English Summary X, a Swiss company, and Y, a Chinese company, entered into three contracts in 1994 for the sale of Chinese peanuts (the “1994 Contracts”). The general conditions were printed on the reverse side of the first two contracts and included an arbitration agreement providing for arbitration in the State of the respondent. The arbitration clause was completed by typing machine and stated “if any, shall be in Beijing, China”. A previous contract had been entered into by the parties in 1993 providing for arbitration at the place of the registered office of the respondent. A dispute arose between the parties. Pursuant to the arbitration agreement contained in the 1994 Contracts, Y seized the Chinese Commission for Arbitration on 4 July 1995. A month later, Y sought to provisionally attach assets belonging to X in the Netherlands. X brought this matter before the Chinese Commission for Arbitration which held that the Holland Court had jurisdiction to rule on such conservatory measures. On 5 March 1996, the arbitral tribunal rendered an award in Beijing in favor of Y which was not subject to any appeal. On 9 May 1997, Y served X with a debt collection order directing X to pay sums due under the award. X opposed the debt collection order. Y brought a request for final dismissal of the objection to pay (mainlevée) and for enforcement of the arbitral award before the Tribunal de Première instance (First Instance Tribunal). On 17 September 1997, the Tribunal de Première instance, based on the 1994 Contracts, ordered the provisional dismissal of the objection to pay. Both X and Y appealed. X argued that certain amounts due to X should be set-off against the award and, in the alternative, that the award violated the NYC and Swiss public order. The Cour de Justice de Genève (Court of Justice of Geneva) annulled the decision of the Tribunal de Première Instance, ordered the definitive dismissal of the objection to pay, thus granting enforcement of the award. The Cour de Justice de Genève held that pursuant to Article 194 of the Swiss Private International Law (“SPIL”) the NYC was applicable, as Y’s request was based on an arbitral award rendered abroad. The Cour de Justice found that the award was final because the arbitration rules did not provide for an appeal against the award. The Cour de Justice de Genève rejected X’s argument under Article IV(1)(b) NYC that Y had not filed the arbitration agreement contained in the third contract. It noted that X had not objected to the jurisdiction of the arbitral tribunal, nor had it filed the contracts in the arbitration proceedings, which had been made in two copies. It held that the third contract referred to the same general conditions as the first two contracts, and that there, as a consequence, an arbitration agreement providing for arbitration under the Chinese Commission for Arbitration existed. Turning to the allegation that enforcement would violate Swiss public policy, the Cour de Justice de Genève held that a violation of Article V(2)(b) NYC could be examined sua ponte by the Court, but the requirements for such a violation would only be satisfied where there was a violation of fundamental principles of Swiss legal order, which was not the case in the matter at hand. It therefore dismissed the argument. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1541&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Seconda Camera civile del Tribunale d’appello, Repubblica e Cantone Ticino Date 21 July 1997 Case number 12.97.00158 Source http://www.sentenze.ti.ch/ (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages Italian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5658&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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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 29 April 1996 Parties Fondation M v. Banque X Applicable NYC Provisions II | II(3) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary A contract was concluded between a Foundation and a Bank on 25 January 1990. The contract contained an arbitration agreement providing for the settlement of disputes by a sole arbitrator seated in Geneva. A dispute arose and the Foundation sued the Bank before the Swiss courts. The Bank objected to the jurisdiction of the Swiss courts based on the existence of an arbitration agreement. Both the Tribunal de première instance (Court of First Instance) and the Cour de Justice of Geneva (Geneva Court of Justice) accepted this argument and found that they lacked jurisdiction. The Tribunal Fédéral (Federal Tribunal) confirmed and held that a state court shall refuse jurisdiction where an arbitration agreement exists between the parties, unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. The Tribunal Fédéral found that the NYC did not apply in the present case as the arbitration agreement provided for the arbitration to be seated in Switzerland. The Tribunal Fédéral applied Article 7(b) of the Swiss Private International Law and held that when a court is asked to refer a dispute to arbitration, it shall carry out only a prima facie analysis of the validity of an arbitration agreement. It added that Article II(3) NYC adopted the same approach. In the present case, the Tribunal Fédéral held that the arbitration agreement was prima facie valid and the parties were to be referred to arbitration. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=911&opac_view=6 Attachment (2)
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Paolo Michele Patocchi / The 1958 New York Convention— The Swiss Practice / The New York Convention of 1958, ASA Special Series No. 9, M. Blessing ed., 145 (1996) - 1996
Author(s) Paolo Michele Patocchi Source The New York Convention of 1958, ASA Special Series No. 9, M. Blessing ed., 145 (1996) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Switzerland Worldcat Number Worldcat : 716102893 
ISBN 978-90-411-3795-1 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3176&opac_view=6
Author(s) Carl Ulrich Mayer Source 14 ASA Bulletin 361(1996) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Switzerland Worldcat Number Worldcat : 716731400 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4234&opac_view=6
Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 07 August 1995 Case number 14.94.00021 Applicable NYC Provisions III | IV | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) | V(1)(e) | V(2) | V(2)(b) | VII | VII(1) Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary An award was rendered in Italy on 22 December 1993. Upon X’s request, the Ufficio d’Esecuzione di Lugano (Debt Collection Office of Lugano) issued a payment order, to which Y raised an objection (opposizione). X requested the dismissal of the objection (rigetto definitivo) before the Pretore del Distretto di Lugano (First Instance Court of Lugano). In response, Y relied on Article VII NYC and claimed that X had not complied with the provisions of the Convention between Switzerland and Italy on the recognition and enforcement of judgments of 1933, which provided that the award had to be enforced in Italy first, and that absent such enforcement the award had not yet become binding on the parties pursuant to Article V(1)(e) NYC. Y also argued that (i) the award was null and void according to Article V(1)(d) NYC, since the arbitrators had not complied with the 90 day time limit to render the award, (ii) it had been unable to present its case, in violation of Article V(1)(b) NYC, because the arbitrators had continued with the proceeding after Y’s counsel resigned, (iii) the arbitration agreement was null and void pursuant to Article V(1)(a) NYC since the subject-matter of the dispute was not capable of settlement by arbitration under the law applicable to the agreement (i.e. Italian law), (iv) the award was contrary to Swiss public policy because Y had been unable to present its case, and (v) the arbitrators had not complied with the arbitration agreement because they had decided ex aequo et bono instead of applying the law. In response X argued, inter alia, that pursuant to Article III, the award had become binding on the parties as soon as it had been signed by the arbitrators, irrespective of its recognition and enforcement in Italy. The Pretore rejected Y’s arguments and dismissed the objection. Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) dismissed the appeal, thus dismissing the objection to the payment order and allowing the enforcement of the award to proceed. The Tribunale d’Appello observed that pursuant to Article 194 of the Federal Act on Private International Law, the NYC is applicable to the enforcement and recognition of foreign awards. Referring to Article VII(1) NYC, the Tribunale d’Appello noted that the Federal Council had decided that a party seeking to recognize or enforce a foreign award could either rely on the provisions of the NYC or on any other more favorable provisions contained in a convention binding Switzerland or under Swiss law. As a consequence, the Tribunale d’Appello held that X was entitled to rely on the provisions of the NYC, which do not require obtaining the award to be enforced in Italy in order to be recognized and enforced in Switzerland. It further held that, pursuant to Article V(1)(e) NYC, the award became binding on the parties as soon as it was signed by the arbitrators. The Tribunale d’Appello rejected Y’s claim that it had been unable to present its case, holding that it had had sufficient time to appoint a new counsel but had failed to do so. It also dismissed Y’s objections that the arbitration agreement was null and void according to Article V(1)(a) NYC, and that the subject-matter was not capable of settlement by arbitration. Lastly, the Tribunale d’Appello held that the recognition and enforcement of the award did not violate Swiss, recalling that according to Swiss case law and doctrine, such violation occurred only when the recognition or enforcement of the award was against the most fundamental rules of Swiss law, which was not the case here. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1300&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Bundesgericht Date 21 March 1995 Case number 5C.215/1994/lit Applicable NYC Provisions I | I(1) | II | V | V(1) | V(1)(a) Source Original decision obtained from the registry of the Bundesgericht
Languages English Summary A Swiss insurance company and a Swedish company concluded various reinsurance agreements of which only one contained an arbitration clause, providing for arbitration in Stockholm and the application of Swedish law. A dispute arose and the Swedish company filed claims before the Handelsgericht (Court of Commerce) Zürich against the Swiss insurance company based on four reinsurance agreements that did not contain arbitration clauses. The Swiss insurance company contested the jurisdiction of the Handelsgericht on the ground that the arbitration agreement contained in the one reinsurance agreement also applied to the four reinsurance agreements in dispute. The Handelsgericht rejected the Swiss insurance company’s jurisdictional objection. The Swiss insurance company appealed to the Bundesgericht (Swiss Federal Tribunal) seeking a declaration that the Handelsgericht was not competent to adjudicate the claims, arguing that in deciding about its jurisdictional objection the Handelsgericht had erred by applying Swiss law, rather than Swedish law (i.e. the applicable law at the seat of the arbitration). The Bundesgericht repealed the Handelsgericht’s decision and remanded it to the Handelsgericht. The Bundesgericht found that even though the NYC dealt with the recognition and enforcement of arbitral awards (Article I(1) NYC), it was also applicable where the existence of an arbitration agreement was raised as a defense in Swiss court proceedings and that the validity of the arbitration agreement was to be determined in accordance with the NYC. It noted that it was not disputed between the parties whether the arbitration clause met the formal requirements under Article II NYC, and that the only question in dispute was the objective scope of the arbitration agreement contained in only one of the reinsurance agreements, i.e. whether that arbitration clause was also meant to apply to the other reinsurance agreements not containing any dispute settlement provisions. The Bundesgericht noted that, to the extent that it was applicable, the NYC had precedence over Swiss law, but that there was no consensus in Swiss law, whether the NYC should also be applied to questions which were not specifically addressed in the NYC, e.g. the objective scope of an arbitration agreement. The Bundesgericht concluded that the NYC needed to be applied to all issues regarding the validity of an arbitration agreement, including issues which were not directly regulated in the NYC. Accordingly, the Bundesgericht found that the objective scope of the arbitration agreement was to be determined in accordance with the choice of law rule contained in Article V(1)(a) NYC, which in the present case required the application of Swedish law as the law applicable at the seat of the arbitration, rather than the Swiss law as the lex fori. The Bundesgericht thus concluded that the Handelsgericht had erred in applying Swiss law to decide the jurisdictional objection raised by the Swiss company. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1416&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 16 January 1995 Parties Compagnie de Navigation et Transports SA v. MSC Mediterranean Shipping Company SA Applicable NYC Provisions II | II(3) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary CNT had insured goods which were the subject of a contract between MSC and a third party. The contract (in the form of a bill of lading) provided for arbitration. MSC had signed the copy; the third party had signed another copy which was labelled ‘certified copy of the original’. Upon delivery, the third party endorsed the bill of lading by signing it. Upon delivery, goods were discovered to be missing. CNT paid the third party under the insurance and claimed against MSC before the Tribunal of First Instance in Geneva. MSC argued that the courts of Geneva did not have jurisdiction due to the arbitration clause in the bills of lading. The Tribunal of First Instance held that it did have jurisdiction, a decision reversed by the Court of Justice. CNT appealed. The Swiss Federal Tribunal dismissed CNT’s appeal. It held that Article II NYC was the only applicable instrument, as the seat of the tribunal was not in Switzerland (therefore Swiss arbitration law was inapplicable). It further decided that Article II(3) NYC allows a court to determine the validity of international agreements, although it prohibits them from applying grounds which are not part of the international legal order. With respect to the signature of the bill of lading, the Tribunal held that in some cases certain conduct, compliant with good faith, could be considered to replace the observance of formal requirements (3), as was the case here. see also :
- II / 2. ANALYSIS (II) / ARTICLE II(2) / b. Non-exhaustive list of documents / §50
- II / 2. ANALYSIS (II) / ARTICLE II(2) / c. Whether the signature requirement applies to an exchange of documents / §55
- 1. INTRODUCTION (II) / §4
- II / 2. ANALYSIS (II) / B. Meaning of 'agreement' / §17
- II / 2. ANALYSIS (II) / ARTICLE II(3) / a. Standard of review / §91
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=564&opac_view=6 Attachment (2)
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Author(s) Bruno Leurent ; Nathalie Mayer-Fabre Source 13(1) ASA Bulletin 118 (1995) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions France | Switzerland Worldcat Number Worldcat : 716343894 ISBN 978-90-411-2322-0 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3003&opac_view=6
Country Switzerland Court Switzerland, Obergericht des Kantons Basel-Landschaft Date 05 July 1994 Case number 30-94/261 Applicable NYC Provisions II | II(1) | II(2) Source Original decision obtained from the registry of the Obergericht des Kantons Basel-Landschaft
Languages English Summary A Seller sent several letters for the confirmation of orders to the Buyer, which contained the following text on the front side: “Confirmation of Order: Based on our overleaf General Business Regulations including the E.C. Conditions we have sold to you…” On the reverse side it contained the text of the General Business Regulations, which provided for dispute resolution by the “Court of Arbitration of the EG Bourse de Commerce in Strasbourg” and also stated that “The buyer submits to arbitration eliminating legal proceedings.” The Buyer responded by fax requesting certain changes to the packaging and mentioning that delivery was urgent. A dispute arose and the Seller initiated arbitration at the Chambre Arbitrale pour le Fruits et les Légumes dans le Trafic National et International, obtaining a favorable award. The Seller applied to the Bezirksgericht (Regional Court) for enforcement of the award, which the buyer opposed, contesting the validity of the arbitration agreement. The Bezirksgericht declared the award enforceable and the Buyer appealed to the Obergericht (Higher Cantonal Court) of Basel-Landschaft. The Obergericht dismissed the appeal, holding that the award was enforceable. It noted that while Article II(1) and II(2) NYC required the arbitration agreement to be an “agreement in writing”, this included an arbitration agreement concluded through an “exchange of letters or telegrams”, provided that there was a written offer to arbitrate and a written acceptance of the offer by the other party (which did not need specifically to make reference to the arbitration clause but could also simply refer to the contract as a whole). It stressed that it needed to be kept in mind while interpreting Article II(2) NYC that the drafters of the NYC had referred to “telegrams”, in addition to letters, in order to cover all means of communication in common use at the time, and that it was thus sufficient if the arbitration agreement was contained in a data medium, such as a fax, which allowed for reproduction in writing and confirmation of the mutual agreement of the parties. The Obergericht further noted that an arbitration agreement fulfilled the formal requirements of Article II(2) NYC even if it was not physically included in the parties’ correspondence, but only contained in a separate document, such as the general terms and conditions, to which the parties referred to in their correspondence. However, it noted that this was controversial in a situation when the correspondence referred to the general terms and conditions without specifically mentioning that the latter provided for dispute settlement by arbitration, and that in such a situation it needed to weigh the necessity to facilitate the resolution of disputes by way of arbitration in international commerce, on the one hand, and the need to protect parties against over burdensome obligations, on the other. It found, however, that the parties would be sufficiently protected where (i) the parties had had the opportunity to review the general terms and conditions, which was the case when these were printed on the back of the main contract; (ii) the parties were familiar with the general terms and conditions based on their regular business relationship; or (iii) the parties could be assumed to have been familiar with the terms and conditions in view of trade customs and the nature of the transaction. The Obergericht concluded that in the present case the requirements of Article II(2) NYC had been met. In addition, it noted that the form requirement under Article II NYC was meant to exclude oral or implicit arbitration agreements and while the form requirement under the NYC was more restrictive than what was required under various foreign laws, a contracting state was not permitted to apply less restrictive requirements, just as it was not permitted to apply more restrictive requirements, for the form of an arbitration agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1415&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 19 April 1994 Parties Emirats Arabes Unis et al v. Westland Helicopters Limited and Tribunal arbitral Applicable NYC Provisions II Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6294&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 15 March 1993 Parties G. v. Fédération Equestre Internationale Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6302&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 23 June 1992 Parties Fincantieri Cantieri Navali Italiani SpA et OTO Melara Spa v. ATF Applicable NYC Provisions V Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary Fincantieri Cantieri Navali Italiani and OTO Melara, two companies registered in Italy, entered into an agency agreement with M for the conclusion of contracts with the Republic of Iraq. Subsequently, a dispute arose and on 4 December 1989, M initiated arbitration proceedings under the International Chamber of Commerce (ICC). By interim award rendered in Geneva on 25 November 1991, the arbitral tribunal held that it had jurisdiction. The two Italian companies lodged a public law appeal against the award. They argued that the subject matter of the dispute was not capable of settlement by arbitration because of the commercial embargo put in place by the United Nations against Iraq. The Italian companies also requested that the award be set aside because, pursuant to Article V(2) NYC, as it will not be enforceable in other jurisdictions. The Tribunal Fédéral (Federal Tribunal) dismissed the request. The Tribunal Fédéral ruled that the dispute was capable of settlement by arbitration under Swiss law. Regarding the argument that the award should be set aside as it would not be able to be enforced abroad pursuant to Article V(2) NYC, the Tribunal Fédéral considered that the fact that an award rendered in Switzerland might be unenforceable in other countries was not a valid reason to have it set aside. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=910&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 11 March 1992 Parties P. v. Société S. Applicable NYC Provisions V | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6293&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Bundesgericht (Federal Tribunal) Date 03 October 1990 Parties i.S. M. v. G. and L. Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6292&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Handelsgericht des Kantons Zürich Date 14 December 1989 Case number HG87388U/HG87 Applicable NYC Provisions II Source Original decision obtained from the registry of the Handelsgericht des Kantons Zürich
Languages English Summary The Respondent, as buyer, entered into a contract with a seller for the delivery of Greek corn. The contract contained a reference to the standard form contract No. 30 of the Grain and Feed Trade Association (“GAFTA”), which was later replaced by a reference to the GAFTA standard form contract No. 62. Both standard contracts contained identical arbitration clauses. The change was agreed orally by the parties and subsequently the Respondent alone amended the original contract by hand. Following the amendment, the seller assigned its right to receive the payment due under the contract to the Claimant. When the Respondent refused to pay, the Claimant filed a lawsuit before the Handelsgericht (Commercial Court) of the Canton of Zurich. The Respondent objected to the jurisdiction of the Handelsgericht based on an arbitration clause. The Claimant, in turn, argued that there was no valid arbitration agreement between the parties, because, inter alia, the arbitration agreement did not meet the requirements of Article II NYC, since both the parties had not signed the amended contract and because, in any event, the arbitration clause was not contained in the contract itself but in a separate document to which the contract referred. The Handelsgericht held that the parties’ arbitration agreement met the requirements of Article II(2) NYC, finding that it was irrelevant that the amended agreement had not been signed by both the parties because the amendment did not result in any changes to the arbitration agreement as the arbitration clauses in both standard form contract were identical. In addition, the Handelsgericht found that it would be an abuse of rights if the Claimant, which had originally proposed the use of the GAFTA standard form contract No. 30 containing an arbitration clause and had subsequently orally agreed to the use of GAFTA standard form contract No. 62 containing the same arbitration clause, now argued based on the lack of an arbitration agreement in writing. The Handelsgericht also found that in the present case it was entirely irrelevant that the arbitration clause was not contained in the signed contract itself, but in the GAFTA standard form contract which was a separate document to which the contract referred. It held that the requirement that the arbitration agreement be in writing needed to be interpreted with regard to the object and purpose of the NYC, which was, on the one hand, to facilitate arbitration agreements in view of the needs of international commerce and, on the other hand, to protect the parties against an imprudent renouncement of their access to state court proceedings. Accordingly, the Handelsgericht found that the validity of an arbitration agreement needed to be considered in each individual case taking into account whether the parties were experienced business people or inexperienced individuals, and whether it could be assumed that the arbitration clauses to which the relevant contract referred to were known to the parties. In applying these criteria, the Handelsgericht concluded that the parties in the present case were not only both very experienced merchants, but also both familiar with the contents of the GAFTA standard form contracts as standard contracts specific to their industry. Finally, it held that it was not problematic that the GAFTA standard form contract did not directly set out the modalities of the arbitration, but rather only referred to the so-called “Arbitration Rules No. 125”, holding that the reference to a GAFTA standard form contract implied a reference to these arbitration rules with which both parties were familiar. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1429&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunale Federale (Federal Tribunal) Date 12 January 1989 Parties X S.A. v. Y Ltd. Case number 5P.249/1988 Applicable NYC Provisions II | II(1) | II(2) | V | V(1) | V(1)(b) | V(2) | V(2)(b) Source Original decision obtained from the registry of the Tribunale Federale
Languages English Summary X, a Swiss company, entered into a sales agreement with Y, a British company, which provided for arbitration in Great Britain. The contract was not signed by the parties but by a broker, acting as mediator. Following a dispute regarding the delivery of goods, Y initiated arbitration proceedings, which were later suspended when the parties agreed upon a new sale and by way of an addendum to the sales agreement. X failed to deliver the goods under the addendum and Y pursued arbitration, obtaining an award in its favor. Upon Y’s request, a payment order was issued in Switzerland, to which X raised an objection (opposizione). The objection was dismissed successively by both the Segretaria Assessore della Pretura di Lugano (Assessor Secretary of the First Instance Court of Lugano) and the Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal). X appealed the decision of the Tribunale d’Appello, arguing that pursuant to Article II(1) and II(2) NYC it was not bound by the arbitration clause because it had not been sent the sales agreement signed by the broker, and had never consented in writing to the arbitration clause contained therein. X also claimed that the award could not be relied upon since (i) X had been unable to present its case, constituting a breach of Article V(1)(b) NYC (ii) the arbitrator appointed by Y had been partial, and (iii) the award was contrary to Swiss public policy as the parties had not had any influence on the composition of the arbitral tribunal given that the arbitration rules required arbitrators to be members of a certain association. The Tribunale Federale Svizzero (Federal Tribunal) dismissed the appeal, thereby dismissing the objection to the payment order (rigetto definitivo). The Tribunale Federale held that the parties had confirmed their consent to the arbitration clause by stating in the addendum that the terms and conditions of the sales agreement were to remain in force. It also found that X had received written notifications of the arbitration and had therefore been fully able to present its case. After noting that issues regarding an arbitrators partiality were governed by Articles V(1)(b) and V(2)(b) NYC and Swiss law, it found that X had failed to produce any evidence in support of its claim. Finally, the Tribunale Federale ruled that the arbitration rules governed the appointment of arbitrators, and it was not contrary to Swiss public policy that the arbitrators were required to be members of a certain association. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1290&opac_view=6 Attachment (1)
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Author(s) Jean-François Poudret Source 4(4) Arbitration International 278 (1988) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Switzerland Worldcat Number Worldcat : 5719293093 ISBN 978-90-411-3795-1 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3177&opac_view=6
Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 26 January 1987 Parties A, B et Société C v. Société Y Case number P 1069/86 Applicable NYC Provisions II | II(3) Source Original decision obtained from the registry of the the Tribunal Fédéral
Languages English Summary In a decision of 15 July 1986, the Cour de Justice of Geneva (Geneva Court of Justice) ruled it did not have jurisdiction over a dispute because of the existence of an arbitration agreement. The appellants lodged a public law appeal. They argued that the decisions should be overturned as the Cour de Justice limited its examination to a prima facie analysis of the existence of an arbitration agreement. They argued that the Cour de justice of Geneva ruled in violation of Article II(3) NYC which allows State Courts to determine that an arbitration agreement is “null and void, inoperative or incapable of being performed”. The Tribunal Fédéral (Federal Tribunal) confirmed the Cour de Justice of Geneva’s decision. It rejected the appellants’ interpretation of Article II(3) NYC. The Tribunal Fédéral ruled that Article II(3) NYC does not concern the case of a direct legal action for jurisdiction of the arbitral tribunal but rather the case where a dispute has been submitted to a State Court while it should have been submitted to an arbitral tribunal. Thus, Article II(3) NYC does not give state courts exclusive jurisdiction over this issue. The Tribunal Fédéral considered that in the present case, the arbitration agreement has prima facie existence, therefore the Cour de Justice of Geneva did not violate any provision of law. The Tribunal Fédéral dismissed the recourse. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=909&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 05 November 1985 Parties Tracomin SA v. Sudan Oil Seeds Co Ltd Applicable NYC Provisions II | II(2) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary A contract between Tracomin and Sudan Oil Seeds did not provide for arbitration when concluded. Sudan Oil Seeds proposed ad hoc arbitration by fax and letter. Tracomin replied, by fax, that it had appointed an arbitrator. After the award was rendered and its enforcement was sought, the appellant (Tracomin) argued that the award was not enforceable as there had been no arbitration clause in the contract. The Swiss Federal Tribunal dismissed the appeal, holding that the exchange of communications between the parties had satisfied the formal requirements in Article II(2) NYC (5). The court also held that an exchange of faxes could be equated with an exchange of telegrams, as referred to in Article II(2) NYC (5). see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=563&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 22 May 1985 Applicable NYC Provisions II | II(3) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary A contract concluded between X and Y provided for arbitration in Le Havre. Y initiated arbitration in Le Havre and obtained order for the enforcement of award in France. Y sought to enforce the award in Switzerland and X sought to resist enforcement on the basis that the proceedings were still on-going in Le Havre. The First Instance and Appellate Chambers of the Court in Vaud found for Y. X appealed to the Tribunal Fédéral (Federal Tribunal). The Tribunal Fédéral dismissed X’s appeal, holding that Article II(3) NYC did not entitle a party to the arbitration clause to – at any time during the course of proceedings for the enforcement of an award – refer any dispute to the arbitral tribunal. The procedure for raising objections to the jurisdiction of the court where recognition and enforcement are sought is not governed by the NYC but by the lex fori. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=562&opac_view=6 Attachment (2)
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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 Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 07 February 1984 Parties Tradax Export SA v. Amoco Iran Oil Company Applicable NYC Provisions II Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary Amoco entered into an agreement with Tradax for the transportation of oil, which contained an arbitration clause stipulating New York as the place of the arbitration. Amoco sued Tradax before the Tribunal of First Instance in Geneva; Tradax objected to the court’s jurisdiction, arguing that the dispute should be resolved by arbitration. The Tribunal of First Instance and the Court of Justice in Geneva found for Amoco. Tradax lodged a public law appeal arguing that the two tribunals should not have applied cantonal law but Article II NYC. The Swiss Federal Tribunal allowed Tradax’s appeal, holding that Article II NYC obliges the Contracting States to recognize the effect and validity of an arbitration agreement. Specifically, the term ‘agreement in writing’ was held to include a clause in a contract or arbitration agreement that is signed by the parties or contained in telegrams or letters exchanged by the parties (2.2). Therefore, the fact that Amoco’s signature did not appear on the bills of lading did not deprive the arbitration clause of its effect, even if the bills of lading did not specifically refer back to the arbitration clause in the agreement between Amoco and Tradax (3.bb). In deciding whether the parties envisaged the clause’s application even though it was not mentioned in the bills, the Tribunal had recourse to the parties’ experience in similar transactions (3.cc). see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=560&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 14 April 1983 Parties C S.A. v. E Corporation Case number 187 Applicable NYC Provisions I | I(3) | II | II(2) | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) Source Original decision obtained from the registry of the Cour de Justice de Genève
Languages English Summary E Corporation, incorporated in Liberia and represented by an agent based in London, and C, allegedly entered into a charter party by the exchange of telexes dated 30 April and 1 May 1981. The telexes contained an arbitration agreement providing for arbitration in London. The arbitration agreement provided that in case a party did not nominate an arbitrator within seven days after the other party had nominated an arbitrator, the chosen arbitrator would serve as the sole arbitrator as if he had been designated by both parties. C alleged that it had made a payment on demurrage but had apparently never returned a signed version of the contract. A dispute arose between the parties. E terminated the contract and initiated arbitration proceedings by nominating an arbitrator. C failed to nominate an arbitrator and as a result, the arbitrator nominated by E acted as the sole arbitrator. C did not appear at the proceedings. On 19 January 1982, the sole arbitrator rendered an award in favor of E, who then sought to enforce the award in Switzerland. E filed, along with its request for enforcement, the original award and a French translation. C opposed enforcement on the grounds that there was no valid arbitration agreement within the meaning of Articles II(2) NYC and IV(1)(b) NYC. It argued that it should have been served notice by diplomatic channels in order to comply with Swiss public policy. On 20 July 1982, the Tribunal de Première Instance of Geneva (Geneva Tribunal of First Instance) granted enforcement of the award. It held that an arbitration agreement in writing includes an exchange of telexes pursuant to Article II(2) NYC, and that no violation of fundamental principles of public policy could be found as C had the opportunity to nominate an arbitrator but had not done so. C appealed, arguing that the award violated public policy under Article V(2)(b) NYC since it had only been notified of the arbitration proceedings by a simple letter. The Cour de Justice de Genève (Court of Justice of Geneva) stated that the Tribunal de Première Instance of Geneva did not examine the substantial validity of the arbitration agreement and remanded the case. The Cour de Justice de Genève held that the NYC governed the issue of enforcement since the award was rendered in London. It considered that the reservation made by Switzerland pursuant to Article I(3) NYC did not apply since Switzerland and the United Kingdom were both signatories to the NYC. Concerning C’s allegation that no valid arbitration agreement existed, the Cour de Justice de Genève held that, notwithstanding the principle of Kompetenz-Kompetenz, the enforcing court could examine the validity of the arbitration agreement pursuant to Articles II(2) NYC and IV(1)(b) NYC. It further considered that if the enforcing Court finds that the arbitration agreement does not conform to Article IV(1)(b), it cannot examine the validity of the award. As the Cour de Justice of Geneva noted, the burden shifts when the enforcing court considers the arbitration agreement to be valid pursuant to Article II(2) NYC: then, the party opposing enforcement bears the burden of proving a ground for non-enforcement under Article V(1)(a) NYC. In the present case, the Cour de Justice de Genève considered that the arbitration agreement contained in the telexes was valid pursuant to Article II(2) NYC. However, it noted that the Tribunal de Première instance had not analyzed C’s arguments that it was not a party to the arbitration agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=930&opac_view=6 Attachment (2)
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