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France / 20 January 1987 / France, Cour d'appel de Paris / Société Bomar Oil N.V. v. Entreprise tunisienne d'activités pétrolières (ETAP) / M 4683
Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 20 January 1987 Parties Société Bomar Oil N.V. v. Entreprise tunisienne d'activités pétrolières (ETAP) Case number M 4683 Applicable NYC Provisions II | II(1) | II(2) Source Original decision obtained from the registry of the Cour d’appel de Paris
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 "those of the standard ETAP contract". A dispute arose and ETAP commenced arbitration in accordance with the ICC arbitration agreement included in the standard ETAP contract. Bomar objected to jurisdiction by 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 an award of 25 January 1985, the arbitral tribunal rejected the objection to jurisdiction. Bomar Oil commenced an action to set aside the award. It argued that (i) the arbitration agreement was non existent, null and void and had expired (Article 1502 1° of the Code of Civil Procedure) and that the arbitral tribunal should have declined jurisdiction in accordance with Article II NYC which contains more restrictive rules than French law, and (ii) the award violated international public policy (Article 1502 5°). The Cour d'appel de Paris (Paris Court of Appeal) dismissed the action to set aside the award. Regarding the validity of the arbitration agreement, it held that an arbitration agreement, incorporated by reference to a document in which it appears, is valid under French law (Article 1443 of the Code of Civil Procedure). It then reasoned that Article II NYC does not exclude the situation where telexes signed by the parties refer to another document containing an arbitration agreement. Interpreting this provision, it held that the NYC allows an arbitration agreement in writing to be incorporated by reference when the consent of the parties is clear and unequivocal. It concluded that Bomar could not have ignored the conditions of the standard ETAP contract and was therefore bound by the agreement. The Cour d'appel de Paris then rejected the other arguments raised by Bomar Oil. reversed by : see also :
- France / 23 January 1991 / France, Cour d'appel de Versailles / Société Bomar Oil N.V. v. Entreprise tunisienne d'activités pétrolières (ETAP) / 10988/89
- France / 09 November 1993 / France, Cour de cassation / Société Bomar Oil N.V. v. Entreprise tunisienne d'activités pétrolières (ETAP) / 91-15.194
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=123&opac_view=6 Attachment (1)
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Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 17 December 1986 Parties K**** Ungarisches Außenhandelsunternehmen für Fabriksanlagen v. M**** Haus und Liegenschaftsverwaltungs GmbH Case number 3Ob32/86 Applicable NYC Provisions II | III | IV | IV(1) | V | V(1) | V(1)(b) | V(2) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3900&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 22 November 1986 Parties Naviera Lucentum, S.A. v. Mrs. Casimiro, Carlos Manuel and Ms. Flora and Rita Shipping Company Case number STS 6456/1986 Applicable NYC Provisions II | II(3) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4647&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 22 November 1986 Parties Rita Shipping Company Limited v. Naviera Lucentum S.A. Case number STS 7815/1986 Applicable NYC Provisions II | II(3) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3973&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 25 February 1986 Parties Société C.O.N.F.E.X. v. Etablissements Dahan and M. Bellue Case number 84-12.138 Applicable NYC Provisions II | II(1) | II(2) Source Original decision obtained from the registry of the Cour de cassation
Summary A sales agreement was concluded on 10 March 1980, between a French company (DAHAN) and a Romanian company (CONFEX), containing an arbitration agreement. By exchange of telexes on 5 and 6 August 1982, the same parties concluded a second sales agreement. A dispute arose between the parties regarding the conformity of the goods delivered in accordance with the second sales agreement. DAHAN sued CONFEX before the Tribunal de Commerce de Marseille (Commercial Court of Marseille), which objected to jurisdiction by invoking the arbitration agreement contained in the 10 March 1980 sales agreement. On 18 January 1984, the Cour d'Aix-en Provence (Aix-en-Provence Court of Appeal) affirmed the decision of the Tribunal de commerce de Marseille which had dismissed CONFEX's objection to jurisdiction and assumed jurisdiction, by ruling that the second sales agreement, which was the subject of the dispute, did not contain any commitment by DAHAN to settle any dispute arising out of the said agreement through arbitration. Appealing this decision, CONFLEX argued that French Courts lacked jurisdiction to hear the dispute. It contended that in international arbitration, the arbitration agreement is not subject to any formal requirement and that the intention of the parties may be established by any means. The Cour de cassation (Supreme Court) upheld the decision of the Cour d'appel d'Aix-en-Provence and dismissed the action. It reasoned that CONFEX, which had invoked the NYC requiring an agreement in writing before the lower courts, could not contradict itself by arguing now that the arbitration agreement is not subject to any formal requirement in international arbitration. It then concluded that, in the case at hand, the parties have not consented to settle disputes arising out of the second sales agreement through arbitration. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=122&opac_view=6 Attachment (1)
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Country India Court India, Supreme Court Date 09 January 1986 Parties Alimenta S.A. v. National Agricultural Co-operative Marketing Federation of India Applicable NYC Provisions II | II(1) Source http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=437&opac_view=6 Attachment (1)
Q._5_-_Alimenta_S.A._vs_National_Agricultural_..._on_9_January,_1986.pdfAdobe Acrobat PDF
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 United States Court United States, U.S. Court of Appeals, Fifth Circuit Date 12 August 1985 Parties Sedco, Inc. (US) v. Petroleos Mexicanos Mexican National Oil, Co. (PEMEX) (Mexico) Case number 84-2512 Applicable NYC Provisions II Source 767 F.2d 1140 Languages English Summary Sedco Inc., (“Sedco”) a Texas company, owned a ship that was in the Gulf of Mexico under bareboat charter to a Mexican drilling company, Perforaciones Marinas del Golfo, S.A. (“Permargo”) that had contracted with Petroleous Mexicanos (“Pemex”), a Mexican state owned oil company, to drill oil wells. A massive blowout took place in 1979, the ship sank, and the flow of oil into the Gulf became the largest oil spill in history at the time. Sedco initiated proceeding before the United States federal district court and Pemargo objected on the basis that the arbitration agreement contained in the charter party between Sedco and Permargo. Sedco simultaneously filed a third-party claim for Pemargo’s failure to indemnify Sedco. The District Court refused to order arbitration because Pemargo was already a party to the pending litigation. Pemargo appealed. The United States Court of Appeals for the Fifth Circuit held that the parties should be referred to arbitration. In so ruling, the Court held that the parties had agreed in writing that all disputes arising from their contractual relationship would be submitted to arbitration. Accordingly, it concluded that their arbitration agreement fell under Article II NYC and remanded the proceedings to the District Court to order the parties to proceed to arbitration in accordance with their contract. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=598&opac_view=6 Attachment (1)
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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 Spain Court Spain, Tribunal Supremo (Supreme Court) Date 29 April 1985 Parties Simonsen & Slang A/S v. Delta 2.000 S.A. Case number ATS 295/1985 Applicable NYC Provisions II | II(1) | II(2) | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) | V(1)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3971&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. District Court, Southern District of New York Date 04 March 1985 Parties Oriental Commercial and Shipping (UK) v. Rosseel, N.V. (Belgium) Case number 84 Civ. 7173 (PKL) Applicable NYC Provisions II | II(3) Source 609 F.Supp. 75 Languages English Summary Rosseel N.V. (“Rosseel”), entered into a contract to purchase specified oil from Oriental Commercial and Shipping Co. (U.K.) Ltd. (“Oriental U.K.”). Oriental Commercial and Shipping Co., Ltd. (“Oriental S.A”.) was not a signatory to the contract of sale between Oriental U.K. and Rosseel. A dispute arose. Rosseel demanded arbitration pursuant to an arbitration clause conveyed in a telex which included the terms of the contract, and Oriental S.A. responded with a petition to stay arbitration in New York state court. Rosseel removed the proceeding to the United States District Court for the Southern District of New York. The District Court held that the arbitration agreement was valid within the terms of Article II(3) NYC and ordered the parties to complete discovery on the issue of whether Oriental S.A. was a party to the arbitration agreement with regard to the transaction. In so ruling, it found that Oriental U.K.'s telex contained the terms of the contract, including a provision for arbitration. It further held that Oriental U.K. evinced its intention to arbitrate disputes arising under that contract. As to the scope of the arbitration agreement, it held that there were not enough facts for the Court to decide whether Oriental S.A. and Oriental U.K were alter egos of each other. The Court held that, subject to the parties’ agreement, Oriental S.A. must participate in the arbitration proceedings. Only in the case that Rosseel should prevail, and Oriental U.K. alone were unable to satisfy the award, an evidentiary hearing would be held to determine whether Oriental S.A was a party to the arbitration agreement, and thus bound by arbitration award. Otherwise, Rosseel's motion for appointment of an arbitrator was stayed pending the Court's determination of the identity of the parties to the arbitration agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=601&opac_view=6 Attachment (1)
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Country India Court India, Supreme Court Date 16 August 1984 Parties Renusagar Power Co Ltd v. General Electric Company and anor. Applicable NYC Provisions II Source 1984 SCC (4) 679; 1985 AIR 1156; 1985 SCR (1) 432; 1984 SCALE (2) 321 | http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary Renusagar Power Co Ltd (“Renusagar”) entered into a contract General Electric Company (“General Electric”), which provided for arbitration under the auspices of the International Chamber of Commerce (“ICC”) in Paris. A dispute arose and General Electric referred the matter to arbitration. Renusagar applied to the Bombay High Court seeking a declaration that the dispute referred to arbitration was beyond the scope of the arbitration agreement, as well as injunctions to prevent General Electric and the ICC from proceeding with the arbitration. General Electric filed an application to a Single Judge requesting that the judicial proceeding initiated by Renusagar be stayed pursuant to Section 3 of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) (mirroring Article II(3) NYC) and that the ex parte interim injunctions be vacated. The Single Judge found in favour of General Electric and, following Renusagar’s appeal, so did the Court of Appeal. Renusagar appealed the decision of the Court of Appeal to the Supreme Court, arguing that the suit it filed was for a declaration that the dispute fell beyond the scope of the arbitration agreement and, consequently, Renusagar’s application did not address the merits of the dispute but only the scope of the arbitration agreement itself. The Supreme Court dismissed the appeal, ordering that the proceedings before the Bombay High Court be stayed and the interim injunctions be vacated. The Supreme Court noted that the 1961 Act was enacted to give effect to the NYC and therefore the provisions of the 1961 Act had to be construed liberally in order to achieve the overarching purpose of the speedy settlement of disputes. Further to that, the Supreme Court noted that Section 2 of the 1961 Act “closely follows” Article II NYC, which the Court held provides for recognition of agreements by which parties undertake to submit all of their disputes to arbitration. The Supreme Court considered that all of the requirements for the application of Section 3 of the 1961 Act were satisfied, holding that the scheme of Sections 3 and 7 of the 1961 Act (mirroring Articles II(3) and V NYC, respectively) suggests that questions of validity, effect and scope of the arbitration agreement are to be decided by the arbitral tribunal. With respect to Section 3, the Supreme Court took note of two changes from the legislative framework of the Arbitration Act 1940 (the “1940 Act”): (i) that Section 3 of the 1961 Act is expressed to apply “notwithstanding” any provisions of the 1940 Act; and, (ii) that a stay is mandatory under Section 3, provided the requirements for its application were satisfied. In reaching its decision, the Supreme Court stressed that, under the scheme of the 1961 Act, a decision of the arbitral tribunal on its own jurisdiction would be regarded as “provisional or tentative, subject to final determination of that question by the Court.” see also :
- II / 2. ANALYSIS (II) / ARTICLE II(3) / a. Obligation to refer the parties to arbitration / §61
- India / 11 August 1987 / India, Supreme Court / Renusagar Power Co Ltd v. General Electric Company and anor. / Civil Appeal No. 2319 of 1986
- II / 2. ANALYSIS (II) / A. The obligation to recognize an agreement in writing / §12
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=407&opac_view=6 Attachment (1)
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Country India Court India, Supreme Court Date 16 August 1984 Parties Renusagar Power Co Ltd v. General Electric Company and another Applicable NYC Provisions II Source http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary Renusagar Power Co Ltd (“Renusagar”) entered into a contract General Electric Company (“General Electric”), which provided for arbitration under the auspices of the International Chamber of Commerce (“ICC”) in Paris. A dispute arose and General Electric referred the matter to arbitration. Renusagar applied to the Bombay High Court seeking a declaration that the dispute referred to arbitration was beyond the scope of the arbitration agreement, as well as injunctions to prevent General Electric and the ICC from proceeding with the arbitration. General Electric filed an application to a Single Judge requesting that the judicial proceeding initiated by Renusagar be stayed pursuant to Section 3 of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) (mirroring Article II(3) NYC) and that the ex parte interim injunctions be vacated. The Single Judge found in favour of General Electric and, following Renusagar’s appeal, so did the Court of Appeal. Renusagar appealed the decision of the Court of Appeal to the Supreme Court, arguing that the suit it filed was for a declaration that the dispute fell beyond the scope of the arbitration agreement and, consequently, Renusagar’s application did not address the merits of the dispute but only the scope of the arbitration agreement itself. The Supreme Court dismissed the appeal, ordering that the proceedings before the Bombay High Court be stayed and the interim injunctions be vacated. The Supreme Court noted that the 1961 Act was enacted to give effect to the NYC and therefore the provisions of the 1961 Act had to be construed liberally in order to achieve the overarching purpose of the speedy settlement of disputes. Further to that, the Supreme Court noted that Section 2 of the 1961 Act “closely follows” Article II NYC, which the Court held provides for recognition of agreements by which parties undertake to submit all of their disputes to arbitration. The Supreme Court considered that all of the requirements for the application of Section 3 of the 1961 Act were satisfied, holding that the scheme of Sections 3 and 7 of the 1961 Act (mirroring Articles II(3) and V NYC, respectively) suggests that questions of validity, effect and scope of the arbitration agreement are to be decided by the arbitral tribunal. With respect to Section 3, the Supreme Court took note of two changes from the legislative framework of the Arbitration Act 1940 (the “1940 Act”): (i) that Section 3 of the 1961 Act is expressed to apply “notwithstanding” any provisions of the 1940 Act; and, (ii) that a stay is mandatory under Section 3, provided the requirements for its application were satisfied. In reaching its decision, the Supreme Court stressed that, under the scheme of the 1961 Act, a decision of the arbitral tribunal on its own jurisdiction would be regarded as “provisional or tentative, subject to final determination of that question by the Court.” see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1387&opac_view=6 Attachment (2)
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Country United Kingdom Court England and Wales, Court of Appeal Date 06 April 1984 Parties The "Tuyuti" Applicable NYC Provisions II | II(3) Source [1984] QB 838, [1984] 3 WLR 745 | online: ICLR
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1482&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 10 February 1984 Parties Gill and Duffus Limited v. Cía. Europea y Aleaciones S.A. (Euroalloys) Case number ATS 16/1984 Applicable NYC Provisions II | V | V(1) | V(1)(a) | V(1)(d) | V(2) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3970&opac_view=6 Attachment (1)
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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 United States Court United States, U.S. Court of Appeals, Third Circuit Date 06 July 1983 Parties Rhone Mediterranee Compagnia Francese v. Lauro Case number 82-3523 Applicable NYC Provisions V | II | V(1)(e) | V(1)(d) | V(1)(a) | II(3) Source 712 F.2d 50 Languages English Summary The Plaintiff brought suit in tort against the Defendant, the owner of a vessel, in the United States District Court of Virgin Islands. The Defendant moved to stay the litigation pending resolution by arbitration in London, relying on an arbitral clause in a time charter contract entered into by the parties. The District Court granted the motion, and the Plaintiff appealed. The United States Court of Appeals for the Third Circuit affirmed the stay pending arbitration. The Court dismissed the Plaintiff’s argument that the arbitral clause was impermissible under Italian law. It held, based on Article V(1)(a), V(1)(e), and V(1)(d) NYC, that the law applicable to the substantive validity of the arbitration agreement is the law chosen by the parties, or the law of the place of the award. The Court also held that an agreement would only be found to be "null or void" within the terms of Article II(3) NYC if it was subject to internationally recognized defenses such as fraud, duress, mistake or waiver, or if enforcement would contravene the fundamental public policy of the forum. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=512&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 17 June 1983 Parties Ludmila C. Shipping Company Limited v. Maderas G.L. S.A. Case number ATS 680/1983 Applicable NYC Provisions I | II | V | V(1) | V(1)(a) | V(1)(b) | V(2) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3967&opac_view=6 Attachment (1)
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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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Country United States Court United States, U.S. Court of Appeals, First Circuit Date 04 August 1982 Parties Ledee (Puerto Rico) v. Ceramiche Ragno (Italy) Case number 82-1057 Applicable NYC Provisions I | II | I(1) | I(3) | II(2) | II(3) Source 684 F.2d 184 Languages English Summary The Defendants, Italian corporations, and the Plaintiffs, Puerto Rican corporations entered into a distributorship agreement. The distributorship agreement contained an arbitration clause providing for arbitration before an arbitrator selected by the President of the Tribunal in Modena. In March 1981, the Plaintiffs brought suit in the Superior Court of Puerto Rico. The Defendants removed the case to the United States District Court for the District of Puerto Rico, which ordered arbitration in accordance with the arbitration agreement. The Plaintiffs appealed. The United States Court of Appeals for the First Circuit affirmed the District Court’s judgment and ordered arbitration. In so holding the Court found that there was an arbitration agreement in writing as required by Article II(2) NYC; that the agreement provided for arbitration in the territory of a signatory of the NYC in accordance with the terms of Article I(1) NYC; and that the agreement arose out of a legal relationship, which was considered commercial in accordance with Article I(3). It further held that nothing in the present case suggested that the arbitration agreement was “null and void, inoperative or incapable of being performed” within the terms of Article II(3) NYC, and referred the parties to arbitration. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=687&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 13 July 1982 Parties Billerud Uddeholm Aktiebolag v. Mr. Juan Miguel Case number STS 1089/1982 Applicable NYC Provisions I | II | II(3) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4641&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 04 June 1982 Parties V. Tholanders EFTF v. Española Naviera Lucentum, S.A. Case number ATS 3/1982 Applicable NYC Provisions II | IV | IV(1) | IV(1)(a) | V | V(1) | V(1)(a) | V(1)(d) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4640&opac_view=6 Attachment (1)
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Country India Court India, High Court of Gujarat Date 04 May 1982 Parties Union of India and ors v. Lief Hoegh & Co and ors Applicable NYC Provisions I | II | XIV Source AIR 1983 Guj 34; (1983) 1 GLR 292 | http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary Union of India (“Union”) entered into a charterparty with Lief Hoegh (“Lief”), which provided for arbitration under the UK Arbitration Act 1950 in London. A dispute arose and Union launched legal action against Lief before the High Court of Gujarat. Lief applied to have the action stayed in favour of arbitration, pursuant to Section 3 of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) (mirroring Article II(3) NYC). The High Court of Gujarat upheld Lief’s application, ordering a stay of the legal action in favour of arbitration. The High Court held that Section 3 of the 1961 Act applied when four requirements were satisfied: (i) there was an agreement to which Article II NYC applied; (ii) a person who was party to such an agreement had initiated legal action; (iii) the legal action pertained to a matter which fell within the scope of the arbitration agreement; and, (iv) the other party had taken no step in the legal action to indicate that he had submitted to the jurisdiction of the court. The Court reasoned that, once these requirements were satisfied, Section 3 of the 1961 Act mandated that it refer the matter to arbitration, provided that the agreement was not void, inoperative or incapable of being performed. The Court found the four conditions to be met on the facts. It then turned to an alternative argument advanced by Union, namely that the 1961 Act was wholly inapplicable to the present case as the charterparty was not a “commercial relationship” as understood in Section 2 of the 1961 Act (incorporating, in modified language, Articles I and II NYC). The Court rejected that argument too, holding that the term “commercial” is “a word of the largest import and takes in its sweep all the business and trade transactions in any of their forms”. Similarly unconvincing, the Court reasoned, was Union’s reliance on Article XIV NYC. The Court considered that there was no circumstance in which India would be applying the NYC in manner more expansive than that applied by other state parties to the NYC. After referring to Article I NYC, the High Court stressed that “the only limitation [to the application of NYC] is that [the dispute] must arise out of a contract which is commercial in nature”. The High Court concluded that granting a stay of the legal action in the present case would not amount to a denial of the sovereignty of the Indian government. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1376&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 24 March 1982 Parties Comineo France S.A. v. Soquiber S.L. Case number ATS 479/1982 Applicable NYC Provisions I | I(2) | II | II(1) | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | V(1) | V(1)(b) | V(1)(e) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3963&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 08 October 1981 Parties Inter-Continental de Café (International) S.A. v. Doña Edurne Case number ATS 457/1981 Applicable NYC Provisions I | II | V | V(2) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3961&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 09 December 1980 Parties Harborn v. José Luis Larabeiti, S.A. Case number ATS 490/1980 Applicable NYC Provisions II | II(1) | II(2) | IV | IV(2) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4638&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Obergericht des Kantons Zürich Date 08 December 1980 Case number II.ZK.Nr. 8 A/80 Applicable NYC Provisions II | IV | IV(2) | V | V(1) | V(1)(e) Source Original decision obtained from the registry of the Obergericht des Kantons Zürich
Languages English Summary The parties concluded several charter parties all of which contained an arbitration clause providing for arbitration in New York City, under New York law, and stating that any arbitral award rendered under the agreement was to be final and binding on the parties in any country. The Respondent obtained a favorable award against the Applicant, which, upon the Respondent’s application, the Bezirksgericht (Regional Court) Zurich declared to be enforceable. The Applicant appealed to the Obergericht (Higher Cantonal Court) Zurich contending that the arbitral award had not become binding since, under Section 7510 of the applicable New York Civil Practice Law and Rules (“CPLR”), it had to have been confirmed by a New York court within one year of having been served on the parties and that such time limit had now passed. The Respondent argued that the NYC only required that the award had become binding, but not that it could be enforced under the CPLR. The Respondent also argued that the report of the legal expert submitted by the Applicant in support of the alleged confirmation requirement should be rejected since it was not accompanied by a certified translation. The Obergericht dismissed the appeal. It noted that the Respondent had followed its interim order to provide a certification by the County Clerk of the State of New York that the notary public who had certified the copy of the award was competent to do so, along with a certification of the County Clerk’s signature by the Swiss Diplomatic representation in New York. On that basis, the Obergericht concluded that the formal requirements under Article IV and II NYC were fulfilled. The Obergericht rejected the Respondent’s request to exclude the Applicant’s expert report for lack of a certified translation reasoning that, unlike Article IV(2) NYC, Article V NYC did not require evidence against the enforceability of arbitral awards to be submitted in the form of a certified translation, rather, it was up to the court to obtain such translations if they were needed. Regarding the Applicant’s objection under Article V(1)(e) NYC, the Obergericht found that the award was to be considered binding even though it had not been confirmed by the competent court in New York since the “confirmation” under Section 7510 CPLR only had the meaning of a declaration of enforceability rather than being a decision about the arbitral award’s binding effect. The Bundesgericht held that in proceedings under the NYC for enforcement of a New York award in another contracting state of the NYC, the confirmation proceedings under the CPLR were effectively substituted by Article IV NYC since the enforcement creditor would otherwise be forced to pursue a double exequatur. The Obergericht concluded that an award was not binding under the NYC only in the event that the losing party had sought vacatur or modification of the award under Section 7511 CPLR within the applicable time limit, or if the competent New York court had indeed annulled or modified the award. The Obergericht clarified that a party’s right to request vacatur or modification of the award under the CPLR was available even in relation to arbitration agreements which state that the arbitral award shall be “finally effective,” since the right to such proceedings could not be waived by the parties. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1425&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Nancy (Court of Appeal of Nancy) Date 05 December 1980 Parties Les Trefileries & Ateliers de Commercy (T.A.C.) v. Société Philipp Brothers France et Société Derby & Co Limited Case number 753/80 Applicable NYC Provisions II | II(3) | VII | VII(2) Source Original decision obtained from the registry of the Cour d’appel de Nancy
Summary A French company (Les Trefileries & Ateliers de Commercy - TAC) ordered 900 tons of RUTIL from another French company (Philipp Brothers France) by telex on 12 March 1975. On 21 March 1975, Philipp Brothers France sent TAC a sales contract established by Derby & Co Ltd for 900 tons of RUTIL, which was then signed by TAC on 2 April 1975. The contract was concluded under the General Conditions of Derby & Co Ltd which contained an arbitration agreement providing for arbitration in London. A dispute arose and TAC sued both Philipp Brothers France and Derby & Co Ltd before French Courts. The Tribunal de Commerce de Bar Le Duc (Commercial Court of Bar Le Duc) held that the NYC did not apply in the case at hand given that it was ratified by the United Kingdom on 24 September 1975 (while noting that the sales contract was concluded on 2 April 1975) and therefore the award, which had not been declared enforceable in France, had no effect under French law. Nevertheless, it found that TAC's claims were groundless. TAC appealed this decision. The Cour d'appel de Nancy (Nancy Court of Appeal) reversed the decision and found that TAC's action was inadmissible. It first noted that the sales contract had been signed and accepted by TAC and therefore the sales contract was binding upon TAC and Derby & Co Ltd, which included the arbitration agreement. It noted further that the Arbitral Chamber of London had rendered an award on 13 December 1977. It then reasoned that while the NYC replaced the Geneva Protocol on Arbitration Clauses, Article VII(2) NYC provides that the Geneva Protocol shall cease to have effect between the Contracting States on their becoming bound by the NYC. It noted that at the time of the signature of the sales contract, the United Kingdom was still bound by the provisions of the Geneva Protocol and that pursuant to Article I of the Geneva Protocol, the arbitration agreement was valid. Given that the United Kingdom had ratified the NYC on 24 September 1975 and that the award was rendered on 13 December 1977, the Cour d'appel de Nancy held that the arbitral award was applicable to the French party, on the basis of reciprocity. It ruled further that pursuant to Article II(3) NYC, the Tribunal de Commerce de Bar Le Duc should have referred the parties to arbitration. In conclusion, it held that the arbitral award was res judicata and that TAC's claims were inadmissible pursuant to Article 122 of the Code of Civil Procedure. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=114&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. Court of Appeals, Third Circuit Date 17 July 1978 Parties Becker Autoradio U.S.A., Inc. (US) v. Becker Autoradiowerk GmbH (West Germany) Case number 77-2566, 77-2567 Applicable NYC Provisions II | II(3) Source 585 F.2d 39 Languages English Summary A dispute arose between the Defendant, Becker Autoradiowerk GmbH (“BAW”), a West German manufacturer of automobile radios and accessories, and the Plaintiff, Becker Autoradio U.S.A., Inc. (“Becker U.S.A.”), a Pennsylvania corporation and BAW's exclusive American distributor. The parties concluded both an oral agreement and a written distribution agreement, which contained an arbitration clause providing for arbitration in Germany in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”). The Plaintiff brought an action in United States federal district court and sued the Defendant for a breach of the oral agreement, arguing that it was a separate issue from the terms of the written contract and therefore not covered by the arbitration clause. The Defendant moved to stay the judicial proceedings in the District Court and to compel arbitration. The District Court denied the Defendant’s motion and the Defendant appealed. The Court of Appeals for the Third Circuit reversed the district court’s decision and ordered that the dispute be submitted to arbitration in accordance with the parties’ agreement. In so holding, the Court held that according to Article II(3) NYC or Section 3 of the Federal Arbitration Act the question of whether, in contracts involving commerce, there is an agreement to arbitrate an issue or dispute upon which suit has been brought is governed by federal law. The Court concluded that the dispute was arbitrable under the terms of the written agreement and referred the parties to arbitration in accordance with their agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=672&opac_view=6 Attachment (1)
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Country Germany Court Germany, Landgericht Zweibrücken Date 11 January 1978 Case number 6.0 H 1/77 Applicable NYC Provisions II | II(2) Source Original decision obtained from the registry of the Landgericht Zweibrücken Languages English Summary The parties concluded a sales contract providing for arbitration before the Netherlands Hide and Leather Exchanges Association in Rotterdam. The contract was concluded on the basis of a sales confirmation that had been sent by the Seller, and signed and returned by the Buyer. Following non-payment by the Buyer, the Seller initiated arbitration proceedings in Rotterdam, in which the Buyer refused to take part for the alleged lack of a valid arbitration agreement. The Seller obtained a favourable award and sought enforcement in Germany. The Landgericht (Regional Court) Zweibrücken granted enforcement, holding that contrary to the Buyer’s allegation, the parties had concluded a valid arbitration agreement that was contained in a sales confirmation which constituted an “agreement in writing” within the meaning of Article II NYC. The Landgericht further explained that although the document was signed only by the Buyer, it was preceded by an exchange of letters that amounted to a written agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=925&opac_view=6 Attachment (1)
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