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India / 12 October 1993 / India, Supreme Court / Brace Transport Corporation Of Monrovia (Liberia) v Orient Middle - East Lines Ld. (Saudi Arabia) / AIR 1994 SC 1715
Country India Court India, Supreme Court Date 12 October 1993 Parties Brace Transport Corporation Of Monrovia (Liberia) v Orient Middle - East Lines Ld. (Saudi Arabia) Case number AIR 1994 SC 1715 Applicable NYC Provisions I | II | III | IV | V Source http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=440&opac_view=6 Attachment (1)
Q13_-_Brace_Transport_of_Monrovia_v_Oriental_Middle_-_east_lines.pdfAdobe Acrobat PDF
Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 21 September 1993 Parties N/A Case number XI ZR 52/92 Applicable NYC Provisions II | II(2) Source Registry of the Court
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4074&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Grenoble (Court of Appeal of Grenoble) Date 13 September 1993 Parties Société C.F.T.E. v. Jacques Dechavanne Case number 2550/92 Applicable NYC Provisions II | II(1) Source Original decision obtained from the registry of the Cour d’appel de Grenoble
Summary On 20 March 1991, two individuals sold their shares in two French companies to a German company (Martin Merkel). In the sale assignment agreement, the German company committed that each of the French companies (now, C.F.T.E) were to execute employment contracts with the two individuals. The agreement contained an International Chamber of Commerce (ICC) arbitration agreement (seated in Switzerland). C.F.T.E refused to renew the employment contract of one of the individuals, as provided under the assignment agreement, who then decided to sue C.F.T.E before the Conseil des Prud'Hommes (Employment Tribunal), which ruled in his favor on 26 March 1992. Appealing this decision, C.F.T.E argued that French courts lack jurisdiction to hear this dispute and should have referred the parties to arbitration in accordance with the arbitration agreement contained in the assignment agreement. The Cour d'appel de Grenoble (Grenoble Court of Appeal) reasoned that the assignment agreement is an international contract. It then ruled that an arbitration agreement contained in an international employment contract is valid, while noting that this was confirmed by the French Government in its letter to the Secretary-General of the United Nations, according to which France withdrew the commercial reservation made under the NYC. It noted further that in accordance with Article II NYC, France committed, without any reservation, to recognize "an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship". The Cour d'appel de Grenoble concluded that French courts lacked jurisdiction and overturned the decision of the Conseil des Prud'Hommes. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=137&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 05 May 1993 Parties Lucky-Goldstar International (H.K.) Limited v. Ng Moo Kee Engineering Limited Case number HCA 94/1993 Applicable NYC Provisions II | II(3) Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4522&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. Court of Appeals, Second Circuit Date 19 April 1993 Parties Cargill Intern. S.A. v. M/T Pavel Dybenko Case number 92-7876 Applicable NYC Provisions II | II(3) Languages English Summary Cargill B.V (“CBV”), a Dutch corporation, bought soybean oil from CISA, a company incorporated under the laws of the Netherlands Antilles. CISA, in turn, entered into a charter party with Novorossiysk, an entity wholly owned by the former Soviet Union, to transport oil aboard Novorossiysk’s ship. The charter party contained an arbitration clause. CBV was the receiver and holder of bills of lading issued in connection with the cargo. After arrival of the cargo in Amsterdam, CBV allegedly found it to have been contaminated during the course of the voyage. CBV brought a suit before the United States District Court for the Southern District of New York, which denied CBV’s request to compel arbitration in London. The District Court held that Novorossiysk was a foreign sovereign and that CBV had failed to establish jurisdiction under Foreign Sovereign Immunities Act (“FSIA”). CBV appealed arguing, inter alia, that Section 1605(a)(6)(B) of the FSIA provides an exception to sovereign immunity in cases “where a foreign state has agreed to arbitrate and the arbitration agreement is or may be governed [by the NYC].” The United States Court of Appeals for the Second Circuit reversed the judgment of the District Court and remanded for further proceedings. In so ruling, the Court held that Section 1605(a)(6)(B) of the FSIA provided an exception to sovereign immunity. The Court found that in order for the NYC to be applicable, the award must arise out of a commercial legal relationship and the award must not be “entirely domestic”. The Court then held that if those requirements were met, pursuant to Article II(3) NYC, a court had to order arbitration unless it found the agreement “null and void, inoperative or incapable of being performed”. It thereby concluded that as long as the alleged arbitration agreement existed, the court could assume jurisdiction, as the other requirements for subject matter jurisdiction had been satisfied. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1146&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Köln (Higher Regional of Köln) Date 16 December 1992 Case number 16 W 43/92 Applicable NYC Provisions II | VII | II(2) | VII(1) | II(1) Summary The Claimant sought the enforcement of an arbitral award obtained on the basis of the General Conditions of Sale contained in the Parties' contract, which expressly referred to the ECE 188 standard contract containing an ICC arbitration clause. The Claimant had sent a confirmation order to the Defendant, which contained the General Conditions but not the ECE contract. Enforcement was refused at First Instance on the grounds that there was no valid agreement in accordance with Article II(2) NYC. The Oberlandesgericht (Higher Regional Court) Cologne reversed the First Instance decision and granted enforcement, holding that an arbitration agreement may be tacitly concluded between merchants under German law, which applies on the basis of the more-favorable-right rule under Article VII(1) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=233&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 03 December 1992 Case number III ZR 30/91 Applicable NYC Provisions II | II(2) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary The parties concluded a contract for delivery of sheep furs on the standard form “International Hide & Skin Contract No. 2” which contained an arbitration clause. The Buyer raised certain claims under the contract before the Landgericht (Regional Court) Frankfurt which were dismissed on the grounds that the parties had entered into an arbitration agreement. The Buyer then appealed to the Oberlandesgericht (Higher Regional Court) Frankfurt which reversed the Landgericht’s decision and remanded the case. The Oberlandesgericht held that the arbitration agreement between the parties was not valid since only one of the parties had given its explicit consent. The Seller appealed the decision. The Bundesgerichtshof (Federal Supreme Court) reversed the Oberlandesgericht’s decision on the ground that it had failed to take into account the Seller’s objection that, in the international trade of furs, the arbitration clause contained in the “International Hide & Skin Contract No. 2” was customarily and implicitly agreed between contracting parties on the basis of international trade usages (“Handelsbrauch”). According to the Bundesgerichtshof, an arbitration agreement can be concluded on grounds of international trade usages as long as the relevant contract is typical of the industry and the parties are regularly active in the relevant business field. It concluded that Article II NYC does not prevent the conclusion of an arbitration agreement based on international trade usages to the extent that the law at the seat of the arbitration does not require an arbitration agreement to be concluded in writing. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=919&opac_view=6 Attachment (1)
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Country Colombia Court Colombia, Corte Suprema de Justicia (Supreme Court of Justice) Date 20 November 1992 Parties Sunward Overseas SA v Servicios Maritimos Limitada Semar (Colombia) Case number 472 Applicable NYC Provisions II | II(2) | III Summary Semar Maritimos chartered a vessel owned by Sunward Overseas to carry a cargo of 10,000 tons of maize from El Savador to Colombia. Following a dispute on the value of the cargo, on 17 February 1988, an award was rendered in New York in favor of Sunward Overseas. A US District Court granted leave for enforcement. Sunward then requested enforcement of the award before the Corte Suprema de Justicia (Supreme Court). The Corte Suprema de Justicia granted enforcement, applying both national law and the requirements of the NYC. It first held that Articles 693 and 694 of the Colombian code of civil procedure required that the State where the decision was rendered gives the same recognition and enforcement to decisions rendered in Colombia. In the present case, the Corte Suprema de Justicia held that it was the case since both the United States and Colombia have ratified and implemented the NYC. The Corte Suprema de Justicia then noted that one of the effects of the NYC is the binding character of the arbitration agreement as intended by Article II NYC. The Corte Suprema de Justicia acknowledged that the award was binding within the meaning of Article III NYC. The Corte Suprema de Justicia then examined the conditions set forth by the NYC and established that no objection could be made to the enforcement of the award: the dispute arose out of commercial rights, the award was not contrary to public policy, and the dispute was not of exclusive jurisdiction of Colombian Courts. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=84&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 20 November 1992 Parties Fratelli Pozzoni S.p.A. v. Graphic Security Systems Corporation Case number 12385 Applicable NYC Provisions II | II(1) | II(3) Languages English Summary An American company, Graphic Security Systems, and an Italian company, Fratelli Pozzoni, entered into a license and cooperation contract pursuant to which Fratelli Pozzoni was granted the exclusive right to produce and sell certain products and to use a patent belonging to Graphic Security Systems. The contract contained an arbitration clause providing for arbitration in New York under the Rules of the American Arbitration Association (AAA). A dispute arose and Graphic Security Systems sought and obtained an injunctive order from the President of the Tribunale di Bergamo (Bergamo First Instance Court) for the payment of certain amounts. Fratelli Pozzoni challenged the injunctive order (opposizione) by arguing that the Italian courts lacked jurisdiction over the dispute and that they should have referred the parties to arbitration in accordance with the arbitration clause in the license and cooperation contract. Fratelli Pozzoni alternatively requested that the Tribunale di Bergamo issue an order (declaratoria di continenza) with regards to proceedings it had commenced before the Tribunale di Roma (Rome First Instance Court) seeking a declaration that the patent and the contract were null and void. Pending the opposition proceedings against the injunctive order, Fratelli Pozzoni requested the Corte Suprema di Cassazione (Supreme Court) to issue a preliminary ruling on jurisdiction (regolamento preventive di giurisdizione). The Corte Suprema di Cassazione held that the Italian courts lacked jurisdiction to hear the dispute. It noted that the arbitration agreement providing for arbitration in New York under the AAA Rules was valid under the NYC even if it did not specify an arbitral body and the rules governing the arbitral proceedings, by vitue of the mere referral to international commercial usages providing such elements. Thus, in the case at hand, the reference to the AAA Rules was sufficient for the arbitration agreement to be valid. The Corte Suprema di Cassazione further stated that an arbitration agreement satisfies the written form requirement of Article II(1) NYC where it is contained in a contract signed by the parties. As a consequence, Article 1341 of the Italian Civil Code (which requires a specific approval for arbitration clauses contained in standard conditions prepared by one party) did not apply to the arbitration agreement even though the contract had been concluded in Italy. The Corte Suprema di Cassazione noted that in the instant case, the provision referring disputes to arbitration was an integral part of the contract signed by the parties and that its application was only excluded for disputes concerning the validity of the patent. The Corte Suprema di Cassazione concluded that in accordance with Article II(3) NYC, a valid arbitration agreement derogates from the jurisdiction of the Italian courts’ in respect of the disputes covered by its scope. It added that an arbitration agreement does not require a solemn or predetermined formulation, other than the written form requirement of Article II(1) NYC, as long as it shows the unequivocal will of the parties to defer their disputes to arbitration. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1414&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 24 September 1992 Parties Guangdong Agriculture Co Ltd v. Conagra International (Far East) Ltd Case number HCA003032/1992 Applicable NYC Provisions II | II(3) Source [1993] HKCU 0578 | http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary The plaintiff (“Guangdong”) entered into a contract with the defendant (“Conagra”) for the sale of urea, which provided for arbitration in Hong Kong. A dispute arose as to the quantity of goods delivered by Conagra and Guangdong initiated a claim against Conagra before the courts of Hong Kong. Conagra applied for a stay of the judicial proceeding in favour of arbitration, to which Guangdong responded by arguing that the arbitration agreement was “null and void, inoperative or incapable of being performed”. Guangdong relied on Article 8(1) of the Model Law of the United Nations Commission on International Trade Law (“UNCITRAL Model Law”). Guangdong argued that there was no dispute between the parties as Conagra had not advanced a defence or justification for its failure to provide the contractually stipulated amounts of urea. Consequently, Guangdong asserted, there was no ground for staying the proceeding. The High Court stayed the judicial proceeding, holding that the matter should be referred to arbitration. Barnett J remarked that Article 8(1) UNCITRAL Model Law is identical in wording to Article II(3) NYC. He held that in the circumstances, even though Conagra had not made clear how it would dispute the shortfall in its provision of urea, a dispute existed because Conagra had not admitted its liability. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=951&opac_view=6 Attachment (1)
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Country Korea Court Korea, Seoul Civil District Court Date 01 May 1992 Parties Gwangzhou Ocean Shipping Company v. Eagle Merchant Marine Co., Ltd. Case number 91Gahap45511 Applicable NYC Provisions II | IV | IV(1) | V | V(1) | V(1)(b) Source Languages Korean Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6439&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal of Alberta Date 16 January 1992 Parties Kaverit Steel v. Kone Corp. Applicable NYC Provisions I | I(3) | II | II(1) | II(2) Source 1992 ABCA 7 | online: CanLII
Languages English Summary Kaverit Steel and Crane (“Kaverit Steel”) was a licensee and distributor of crane equipment and parts under written agreements with Kone Corporation (“Kone”), each of which included clauses for the resolution of all disputes by arbitration in Stockholm, Sweden, under the rules of the International Chamber of Commerce (“ICC”). A dispute arose and Kaverit Steel initiated court proceedings against Kone. Kone brought an application to the Alberta Court of Queen’s Bench to stay the action and refer the matter to arbitration, which was dismissed on the grounds that some of the issues in the action fell outside the scope of the arbitration clause, and that some parties to the action were not parties to the arbitration agreements. Kone appealed. The Court of Appeal of Alberta reversed the judgment refusing to stay the action and referred Kaverit’s claims in contract, and some of its claims in tort, to arbitration. The Court of Appeal accepted the lower court’s finding that Kaverit had raised some claims directed at third parties to the arbitration agreement, and that such parties could not be compelled to arbitrate without consenting to do so. It noted that the Alberta International Commercial Arbitration Act (the “ICAA”) adopts the test under Article II(1) NYC, which provides that the NYC applies only to “an agreement in writing under which the parties undertake to submit to arbitration” and that Article II(2) NYC clarifies that “parties” are the parties signatory to the agreement by stating that the term “‘agreement in writing’ shall include an arbitral clause in a contract signed by the parties.” The Court of Appeal considered that the mere fact that a claim sounds in tort does not exclude its arbitrability. It confirmed this reasoning by looking to Section 2 of the ICAA, which limits its scope to “differences arising out of commercial relationships, whether contractual or not”, and to Article I(3) NYC, which leaves signatory states to decide whether the NYC applies only to contractual differences or all types of differences. The Court of Appeal found that in the case before it, because the parties had agreed to arbitrate disputes “arising out of or in connection with” their contract, extra-contractual claims could also fall within the scope of that clause if either the claimant or defendant relied on the existence of the contractual obligation as a necessary element to create or defeat the claim. It held that even if referring some of the parties’ disputes to arbitration could pose a risk of multiple and contradictory findings, Article II(3) NYC directed courts of signatory states to hold parties to their agreement to arbitrate unless such an agreement was “null and void, inoperative or incapable of being performed.” reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=954&opac_view=6 Attachment (1)
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Country Egypt Court Egypt, Court of Cassation Date 23 December 1991 Parties Misr Insurance Company v. Alexandria Shipping Agencies Company Case number 547/51 Applicable NYC Provisions V | II | V(1)(a) Languages English Summary Nasr Company for Import and Export (“Nasr”) shipped a message on board a ship owned by the Alexandria Shipping Agencies Company (“Alexandria Shipping”). Upon delivery at the port of Alexandria, damage to the message was noticed. Following the transfer of Nasr’s rights vis-à-vis Alexandria Shipping to Misr Insurance Company (“Misr Insurance”), the latter filed a lawsuit claiming compensation of the damage suffered. On 30 June 1979, the Alexandria Court of First Instance dismissed Misr Insurance’s claim given the existence of an arbitration agreement in the bill of lading, requiring resolution of disputes by arbitration in Gothenburg, Sweden. On 27 December 1980, the Alexandria Court of Appeal confirmed the judgment of the Court of First Instance. On 22 February 1981, Misr Insurance challenged the judgment of the Court of Appeal before the Court of Cassation and argued that Egyptian Courts had jurisdiction over the dispute because the arbitration agreement contained in the bill of lading did not determine the names of the arbitrators, thereby breaching Article 502(3) of the Egyptian Code of Civil and Commercial Procedure (“Code of Procedure”). The Court of Cassation rejected Misr Insurance’s challenge. It noted that foreign arbitration agreements are recognized in Egypt following the accession to the NYC and its application by virtue of Presidential Decree No. 171/1959. The Court added that Articles II and V(2) NYC require the Courts of the contracting States to refer matters governed by an arbitration agreement to arbitration, unless the arbitration agreement is null and void, incapable of being performed or its subject-matter is not capable of settlement by arbitration or affects public policy. The validity and effects of arbitration agreements are to be determined in accordance with the law of the seat of arbitration, which is Swedish law in the present case, so long as the subject-matter of the arbitration does not contravene public policy and is capable of settlement by arbitration in Egypt pursuant to Articles II, V(1)(a) and V(2) NYC. The Court concluded that Misr Insurance had provided no evidence establishing that the arbitration agreement was null and void under Swedish law. It added that contravention of public policy in Egypt requires a contravention of the social, political, economic or moral foundations of the State, and that a contradiction with a legal text is not sufficient. The Court held that Article 502(3) of the Code of Procedure, which requires an arbitration agreement to determine the identity of the arbitrators, is a rule that is unrelated to public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=384&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour d’appel du Québec Date 06 December 1991 Parties Ville de La Sarre v. Gabriel Aubé Inc. Case number 200-09-000589-918 Applicable NYC Provisions II | II(3) Source [1992] RDJ 273 | online: CanLII
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5386&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 13 September 1991 Parties Brian Harper v. Kvaerner Fjellstrand Shipping A.S. Case number C914875 Applicable NYC Provisions II | II(3) Source online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5385&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen's Bench of New Brunswick Date 19 August 1991 Parties M.A. Industries, Inc. v. Maritime Battery Ltd. Case number F/M/48/91 Applicable NYC Provisions I | I(3) | II | II(1) | II(2) | III | IV | V | XIV Source 118 NBR (2d) 127 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5384&opac_view=6 Attachment (1)
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Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 22 May 1991 Parties E. S**** B.V., **** Niederlande v. W**** & Co GmbH KG Case number 3Ob73/91 Applicable NYC Provisions II | II(2) | V | V(1) | V(1)(a) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3898&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen's Bench of Alberta Date 14 May 1991 Parties Kaverit Steel and Crane v. Kone Corp. Applicable NYC Provisions I | I(1) | II | II(3) Source 1991 A.J. No. 450
Languages English Summary Kaverit Steel and Crane (“Kaverit Steel”) was a licensee and distributor of crane equipment and parts under written agreements with Kone Corporation (“Kone”), each of which included clauses for the resolution of all disputes by arbitration in Stockholm, Sweden, under the rules of the International Chamber of Commerce (“ICC”). A dispute arose and Kaverit Steel initiated court proceedings against Kone. Kone applied to the Alberta Court of Queen’s Bench to stay the action and refer the matter to arbitration, relying on the discretion granted to the courts under the Alberta Arbitration Act to stay court proceedings. Kaverit Steel argued that the International Commercial Arbitration Act (“ICAA”), to which the NYC is appended as a schedule, was applicable and not the Alberta Arbitration Act. It further argued that the ICAA could not be invoked to stay the proceedings, as the parties to the arbitration agreement did not include all the litigants raising a claim against Kone and therefore there was no arbitration agreement binding all the parties. This, they argued, would warrant a refusal to refer the parties to arbitration under Article II(3) NYC, since the agreement would be “inoperative or incapable of being performed.” The Court of Queen’s Bench ruled that the ICAA and not the Alberta Arbitration Act was applicable as the arbitration was to take place in Sweden, thereby falling under the scope of Article I(1) NYC. It further held that the other litigants in the action, who were not party to the arbitration agreements, had raised legitimate claims connected to the main breach of contract that should be tried in the same proceeding. The Court of Queen’s Bench considered that this would render the arbitration clause inoperative under Article II(3) NYC. reversed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=905&opac_view=6 Attachment (1)
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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 Egypt Court Egypt, Court of Cassation Date 16 July 1990 Parties Egyptian Saudi Hotels Company v. Kurt & Daves Corporation Case number 2994/57 Applicable NYC Provisions V | II | I | V(1)(b) Languages English Summary On 14 September 1978, Egyptian Saudi Hotels Company (“Egyptian Saudi Hotels”) and Kurt & Daves Corporation (“Kurt & Daves”) concluded a contract by which Kurt & Daves undertook to provide architectural design and engineering services for the construction of a hotel. Article 9 of said contract provided that it was governed by English law and that all matters, claims and disputes arising from the contract which could not be amicably settled should be subject to arbitration in London in accordance with the Rules of the International Chamber of Commerce (the “ICC Rules”). Claiming that Egyptian Saudi Hotels breached the contract, Kurt & Daves initiated arbitration proceedings. On 28 October 1983, an award was rendered in Kurt & Daves’ favor. On 26 February 1987, the Court of First Instance issued a judgment granting enforcement to the arbitral award, which was confirmed on 26 November 1987 by the Cairo Court of Appeal. Egyptian Saudi Hotels challenged the judgment of the Court of Appeal before the Court of Cassation and alleged, inter alia, that the Court of Appeal incorrectly applied the law since Egyptian Saudi Hotels was not a Party to the contract, and that it did not verify whether Egyptian Saudi Hotels was correctly given notice of the arbitration proceedings and whether Egyptian Courts had jurisdiction over the dispute, as is required by the Egyptian Code of Civil and Commercial Procedure (“Code of Procedure”). The Court of Cassation rejected the challenge made by Egyptian Saudi Hotels and upheld the judgment of the Court of Appeal granting enforcement to the award. The Court considered that, in accordance with Articles I and II NYC, each State party to the NYC recognizes the res judicata effect (“autorité de la chose jugée”) of foreign arbitral awards unless one of the grounds for non-enforcement contained in Article V NYC is established and that arbitral awards have a res judicata effect (“autorité de la chose jugée”) starting from the date of their issuance and maintain this res judicata effect as long as they exist. Therefore, the judge may not, when ordering enforcement of arbitral awards, verify whether they are fair or correct on the merits. Accordingly, Egyptian Saudi Hotels’ challenge to the Court of Appeal’s judgment on the basis that it was not a party to the contract does not fall under any of the grounds for non-enforcement of arbitral awards. The Court further noted that, given that Egypt acceded to the NYC by Presidential Decree No. 171/1959, the NYC is applicable like any other law of the Egyptian State, even when it contradicts the Code of Procedure. Egyptian Saudi Hotels’ challenge on the basis that the Court of Appeal did not verify whether Egyptian Courts have jurisdiction over the dispute must be rejected, since this is not required by the NYC. According to Article 22 of the Civil Code, the rules of procedure are governed by the law of the forum and the ground contained in Article V(1)(b) NYC for non-enforcement of awards is a rule of procedure which is subject to the law of the judge. The Court rejected Egyptian Saudi Hotels’ challenge given that, according to the arbitral award, the sole arbitrator was assured that notice was sent to Egyptian Saudi Hotels and that the latter did not provide evidence establishing that it was not given notice in accordance with the law of the judge. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=385&opac_view=6 Attachment (1)
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Country India Court India, High Court of Delhi Date 23 May 1990 Parties National Thermal Power Corp v. Singer Company and ors Applicable NYC Provisions I | II | II(3) Source 1990 (2) ARBLR 1 Delhi; 42 (1990) DLT 152 | http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary National Thermal Power Corporation (“National”) entered in two contracts with the respondent Singer Company (“Singer”) for the supply of equipment and commissioning of certain works in India, the General Terms and Conditions of which provided for arbitration under the auspices of the International Chamber of Commerce (“ICC”). The General Terms and Conditions expressly stated that the contract was governed by Indian law. A dispute arose which was referred to arbitration under the ICC Rules. As the parties had not agreed to a seat for the arbitral tribunal, the ICC Court decided that the arbitration would have its seat in London. An interim award was rendered which National sought to set aside in India, relying on Sections 14, 30 and 33 of the Indian Arbitration Act 1940 (the “1940 Act”), a statute which applied to domestic awards. The High Court of Delhi rejected National’s argument, holding that the law governing the arbitration agreement was the law of the seat of the arbitral tribunal and, consequently, that no challenge could be mounted against the award on the basis of the 1940 Act. In reaching this conclusion, the High Court considered that the award was not a domestic award. Pointing to Section 2 of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”), which the Court expressly considered as incorporating Articles I and II NYC, the Court noted that an award will be a “foreign award” when made (i) pursuant to an agreement in writing to which the NYC applies; and, (ii) in a territory having reciprocal provisions. Turning to the application of those conditions, the High Court considered them both to be satisfied on the facts. In particular, the Court stressed that “agreement in writing” in Article II NYC includes an arbitral clause in a contract or an arbitration agreement signed by the parties. Further, as the Court determined that the parties had agreed for arbitration to take place in London, it found that “[n]ot much argument is, therefore, needed to show that the award in the present case is a foreign award and would be governed by the Foreign Awards Act”. According to the High Court, the fact that the parties had agreed to London as the seat of the arbitration meant that the Indian Arbitration Act was inapplicable and the arbitration agreement was governed by English law. The Court also noted that Article I NYC applies to the recognition and enforcement of arbitral awards made in a foreign country. Finally, the High Court stated that Section 3 of the 1961 Act is “equivalent” to Article II(3) NYC, noting that pursuant to Section 3 any party to legal proceedings may, at any time after putting appearance and before filing written statement or taking any other step in the legal proceedings, apply to the court to stay the proceedings. reversed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1380&opac_view=6 Attachment (1)
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Country Korea Court Korea, Supreme Court of Korea Date 10 April 1990 Parties GKN International Training (London) Limited v. Kukje Trading Co., Ltd. Case number 89Daka20252 Applicable NYC Provisions I | I(1) | I(3) | II | II(2) | III | IV | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) | V(2) | V(2)(b) Source Languages Korean Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6415&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 United States Court United States, U.S. Court of Appeals, Ninth Circuit Date 23 October 1989 Parties Ministry of Defense of the Islamic Republic of Iran v. Gould Inc., Gould Marketing, Inc., Hoffman Export Corporation, and Gould International, Inc. Case number 88-5879 / 88-5881 Applicable NYC Provisions II | I | IV | V | II(1) | I(1) | IV(1)(b) | V(1)(a) | V(1)(d) | V(1)(e) Languages English Summary The Ministry of War of the Imperial Government of Iran and Hoffman Electric Corporation, which later merged with Gould Marketing (“Gould”), entered into two agreements. Progress payments and performance under the contract were disrupted due to the Iranian revolution. Gould submitted claims before the Iran-U.S. Claims Tribunal seeking damages from Iran for breach of contract. The Tribunal issued a monetary award in favor of Iran. Iran sought confirmation and enforcement of the award in the United States District Court for the Central District of California. Gould argued that the District Court improperly exercised jurisdiction under Section 203 of the Federal Arbitration Act (“FAA”) and opposed the application on two grounds. First, it argued that there was no “agreement in writing” under Articles II and IV NYC. Second, it argued that the award did not fall within the ambit of the NYC because of an implied requirement under Article V(1)(e) NYC that the NYC applied only to awards made in accordance with national law, as opposed to international law. The United States Court of Appeals for the Ninth Circuit denied Gould’s motion to dismiss for lack of jurisdiction under Article 203 of the FAA. The Court first found that the award was subject to the NYC, as the requirements of Section 202 of the FAA had been fulfilled (namely, that (i) the award arose out of a legal relationship which was (ii) commercial in nature and (iii) was not entirely domestic in scope). The Court held that the award also satisfied the requirements of Article I(1) NYC and was “made in the territory of another Contracting State” by a “permanent arbitral bod[y]”. The Court found that Article IV(1)(b) NYC, which requires a party to submit "[t]he original agreement referred to in article II ... or a duly certified copy thereof”, and Article II(1) NYC, which requires that “each Contracting State shall recognize an agreement in writing […]”, both indicated that the award referred to in Section 203 of the FAA must emanate from a written arbitration agreement. The Court then explained that the Claims Settlement Declaration, which established the Iran-United States Claims Tribunal as a mechanism for binding third-party arbitration, satisfied “the agreement in writing” standard under the NYC. The Court further found that that an award need not be made “under a national law” for a court to entertain jurisdiction over its enforcement pursuant to the NYC. The Court concluded that if the parties choose not to have their arbitration governed by a “national law,” then the losing party could simply not avail itself of certain of the defenses listed in Article V(1)(a) and (e) NYC. see also :
- United States / 30 June 1992 / United States, U.S. Court of Appeals, Ninth Circuit / Ministry of Defense of the Islamic Republic of Iran v. Gould, Inc.; Gould Marketing, Inc.; Hoffman Export Corporation; Gould International, Inc. / 91-55135 / 91-55136
- I / 2. ANALYSIS (I) / ARTICLE I(1) / b. Awards “not considered as domestic awards in the State where their recognition and enforcement are sought” / §60
- I / 2. ANALYSIS (I) / ARTICLE I(1) / b. Awards “not considered as domestic awards in the State where their recognition and enforcement are sought” / §63
- I / ARTICLE I(2) / §68
- II / 2. ANALYSIS (II) / ARTICLE II(2) / a. An exchange / §49
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1153&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 11 October 1989 Parties Société Bomar Oil N.V. v. Entreprise tunisienne d’activités pétrolières (ETAP) Case number 87-15.094 Applicable NYC Provisions II | II(1) | II(2) Source Bulletin 1989 I N° 314 p. 209, Original decision obtained from the registry of the Cour de cassation
Summary By an exchange of telexes in August 1983, a Tunisian public entity (ETAP) and a company registered in the Netherlands Antilles (Bomar Oil) entered into an agreement for the sale of crude oil by ETAP, which referred to "other conditions" belonging to "the standard ETAP contract". A dispute arose and ETAP commenced arbitration in accordance with the International Chamber of Commerce (ICC) arbitration agreement included in the standard ETAP contract. Bomar objected to jurisdiction. In an award of 25 January 1985, the arbitral tribunal rejected the objection to jurisdiction. Bomar Oil commenced an action to set aside the award before the Cour d'appel de Paris (Paris Court of Appeal), arguing that the arbitration agreement, which was not included in the document signed by the parties, but only in a separate document to which reference was made in the main agreement, should be deemed non-existent in accordance with Article 1502 1° of the Code of Civil Procedure. The Cour d'appel de Paris dismissed this action by ruling that Bomar Oil could not have ignored the provisions of the standard ETAP contract which are common in the hydrocarbon field and, in any case, should have reviewed the said contract prior to consenting to it. Bomar Oil appealed this decision. The Cour de cassation (Supreme Court) reasoned that, pursuant to Article II(1) NYC, the Contracting Parties to the NYC committed to recognize an agreement in writing under which the parties undertake to submit to arbitration any or all differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. It noted further that, in accordance with Article II(2) NYC, an agreement in writing shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. Pursuant to these provisions, it held that an arbitration agreement, by reference to a document in which it appears, is valid if it is mentioned in the main contract, unless it can be established that the parties had regular business relations which would have enabled them to have a full knowledge of the provisions governing their commercial relations. The Cour de cassation overturned the decision of the Cour d'appel de Paris for having failed to assess whether the arbitration clause had been mentioned in the exchange of telexes or to establish the existence of regular business relations between the parties. followed by : reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=129&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. Court of Appeals, Fifth Circuit Date 26 June 1989 Parties E.A.S.T., Inc. of Stamford, Conn. v. M/V Alaia Case number 88-3136 Applicable NYC Provisions I | II | I(3) | II(3) Languages English Summary E.A.S.T (“EAST”) agreed to charter the M/V ALAIA (“ALAIA”), owned by Advance, Co. (“Advance”), a Liberian corporation. The charter party, which was governed by English law, contained an arbitration clause providing for arbitration in London. A dispute arose and EAST moved to compel arbitration in the United States District Court for the Eastern District of Louisiana under the Federal Arbitration Act (“FAA”). The District Court compelled arbitration and ordered each of the parties to post security for arbitration. Advance appealed, arguing, inter alia, that the court erred in holding that in rem jurisdiction was a sufficient basis on which to refer the parties to arbitration and furthermore, that that pre-arbitration attachment of the ALAIA would be inconsistent with the NYC. EAST argued that the NYC was not applicable as Advance was a corporation of a non-signatory state to the NYC. The United States Court of Appeals for the Fifth Circuit affirmed the decisions of the lower court and dismissed the appeal. The Court first found that when the United States adopted the NYC, it chose the option available under Article I(3) NYC to apply the NYC on the basis of reciprocity, i.e. to apply it only to those awards made in the territory of another contracting state. However, it determined that since arbitration was to be conducted in a contracting state to the NYC (Great Britain) and thus the NYC would be applicable irrespective of Advance’s Liberian nationality. The Court rejected Advance’s argument that the District Court did not have jurisdiction to refer the parties to arbitration. It held that under Article II(3) NYC and Section 206 of the FAA (which gives effect to Article II(3) NYC), the District Court had the authority and duty to refer the parties to arbitration. It further decided that it need not decide the question of whether the district court could refer the parties to arbitration on the basis of in rem jurisdiction since Advance had submitted to the court’s in personam jurisdiction. It also found that pre-arbitration attachment of the vessel was not inconsistent with the NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1154&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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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 08 December 1988 Parties Société Sysmode and Société Sysmode France v. Société Metra HOS, Société SEMA and Société Higher Order Software Inc. Case number 86-11681 Applicable NYC Provisions II | II(3) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary On 8 January 1982, two French companies (HOS and SYSMODE) entered into an exclusive distribution agreement. The contract contained an arbitration clause. A dispute arose and METRA-HOS sued SYSMODE before the Tribunal de Commerce de Paris (Commercial Court of Paris) which declined jurisdiction and referred the parties to arbitration. The Cour d'appel de Paris (Paris Court of Appeal) affirmed the decision of the Tribunal de Commerce de Paris regarding jurisdiction. It held that, pursuant to Article II NYC and Article 1458 of the Code of Civil Procedure, in the presence of an arbitration agreement domestic courts shall decline jurisdiction and refer the parties to arbitration. It added that the fact that other parties were involved in the proceedings and that the disputes were indivisible did not prevent the enforcement of the arbitration agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=128&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 15 June 1987 Parties Case number II ZR 124/86 Applicable NYC Provisions V | II | V(2)(b) | II(1) Source BGH Summary An investment contract between a German individual and a New York corporation, governed by New York law and containing an arbitration clause, contravened certain mandatory provisions of German exchange laws. In court proceedings in Germany, the New York corporation invoked the arbitration clause. The Bundesgerichtshof (Federal Supreme Court) held that the case was non-arbitrable under German law. The combination of arbitration proceedings abroad and applicable law other than German law would leave the German mandatory exchange laws without effect, with regard to both the protection against claims filed against the persons protected by these laws and the possibility for the protected persons to obtain reimbursement of any sum paid. In the Court's opinion, Article V(2)(b) NYC would have been applicable to the facts of the case since the contract contravened German mandatory rules that are part of German "ordre public". If the arbitration agreement were to be recognised and its validity only verified at the stage of the recognition proceedings, the German individual would be referred to arbitration before an American arbitral tribunal that would not apply the German mandatory rules, with the result that the German individual would be incapable of recovering the sums unduly paid to the New York corporation. For these reasons, the Court denied recognition of the arbitration agreement for the "subject matter" not being "capable of settlement by arbitration" pursuant to Article II(1) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=222&opac_view=6 Attachment (1)
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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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