Available documents (784)
Country Germany Court Germany, Oberlandesgericht Schleswig Date 30 March 2000 Case number 16 SchH 05/99 Applicable NYC Provisions V | IV | II | V(2)(b) | V(1)(d) | V(1)(a) | IV(1)(b) | II(2) Source DIS Languages English Summary The Defendant purchased goods from the Claimant since 1995. In 1997, the Defendant placed an order and the Claimant confirmed the sale by telefax using its standard form which contained a reference to the General Conditions of Sale printed on the reverse side which on its face contained an arbitration clause providing for arbitration at the Court of Arbitration of the Hungarian Chamber of Commerce. The Claimant only sent the front side of the contract form which the Defendant signed and faxed back to the Claimant. The dispute arose and the Claimant commenced arbitration proceedings. The Court rendered a preliminary award in the Claimant’s favor and thereafter a final award which the Claimant sought to enforce before German Courts. The Oberlandesgericht (Higher Regional Court) Schleswig enforced the award, holding that both the requirements of Article IV NYC and Sections 1061 and 1064 of the ZPO (Zivilprozessordnung) had been met. The Court deemed that the contract form signed by the Defendant and faxed to the Claimant fulfilled the formal requirements of Article II(2) NYC. The Court dismissed the Defendant’s objection based on Article V(1)(a) NYC, by stating that Article V(1)(a) presupposes a formally valid arbitration agreement which the Claimant has the burden to prove. The Court stated that the substantive rule in Article II(2) prevails over any national law “be it more or less strict as to the formal requirements”. Moreover, the Court stressed that the Defendant cannot argue that it was not aware of the arbitration clause printed on the reverse side as the Parties were in ongoing business relationship pursuant to which the Claimant would always use the same form for the conclusion of its contracts with the Defendant. Accordingly, the Court stressed that even if there were no formally valid arbitration agreement, this defect would have been cured since the Defendant failed to object the tribunal’s jurisdiction during the arbitration and thus waived its right to object at a later stage of the proceedings. The Court specified that the prohibition of contradictory behavior is a legal principle that needs to be taken into account within Article II(2). The Court found that the fact that the Defendant did not initiate annulment proceedings before Hungarian Courts did not preclude it from resisting enforcement under Article V(1)(a) . The Court further found that it was not bound by the arbitral tribunal’s finding on jurisdiction and found that under the applicable Hungarian provision, the formal defect was cured when the Defendant entered into the merits of the arbitration claim without objecting the substantive validity of the arbitration agreement. Finally, the Court dismissed alleged violation under Article V(1)(d) NYC, based on the fact that the procedural language of the arbitration was Hungarian, since the Defendant had a Hungarian counsel, and found the award was not contrary to German public order pursuant to Article V(2)(b). see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=423&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 28 March 2000 / Spain, Tribunal Supremo (Supreme Court) / Kil Management A/S v. J. García Carrión S.A. / ATS 238/2000
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 28 March 2000 Parties Kil Management A/S v. J. García Carrión S.A. Case number ATS 238/2000 Applicable NYC Provisions I | II | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | V(1) | V(1)(a) | V(1)(b) | V(1)(c) | 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=4066&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 21 March 2000 / Spain, Tribunal Supremo (Supreme Court) / Dee Baylis Ltd v. Curtidos Gregori S.A. / ATS 687/2000
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 21 March 2000 Parties Dee Baylis Ltd v. Curtidos Gregori S.A. Case number ATS 687/2000 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | V | V(1) | V(1)(a) | V(1)(b) | 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=4067&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 08 February 2000 / Spain, Tribunal Supremo (Supreme Court) / Vinalmar S.A. v. Gaspar Peral y Cía S.L. / ATS 16/2000
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 08 February 2000 Parties Vinalmar S.A. v. Gaspar Peral y Cía S.L. Case number ATS 16/2000 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(1)(d) | V(2) | V(2)(a) | 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=4068&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 01 February 2000 / Spain, Tribunal Supremo (Supreme Court) / Project XJ220 LTD v. D. Federicoa / ATS 469/2000
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 01 February 2000 Parties Project XJ220 LTD v. D. Federicoa Case number ATS 469/2000 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(b) | V(2) | V(2)(a) | 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=4070&opac_view=6 Attachment (1)
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Country Germany Court Germany, Hanseatisches Oberlandesgericht Bremen Date 30 September 1999 Case number (2) Sch 04/99 Applicable NYC Provisions V | IV | V(2)(b) | V(1)(d) | V(1)(c) | V(1)(b) Source DIS Languages English Summary The parties were both shareholders in a Turkish limited liability company whose bylaws contained an arbitration agreement. The Applicant initiated arbitration proceedings at the Arbitral Commission of the Istanbul Chamber of Commerce, which issued an award in its favor. Shortly before the issuance of the award, the Respondent had filed an action at the local court of Istanbul requesting the court to declare that the arbitral tribunal lacked jurisdiction. Both the local court and the Court of Cassation dismissed the Respondent’s action. The Respondent also sought annulment of the arbitral award on the grounds that the arbitral tribunal had rendered its decision without awaiting the outcome of the decision of the state courts, which was granted by the Turkish Court of Cassation. The Applicant then initiated new arbitration proceedings requesting that the Respondent be ordered to make payment in accordance with the first award. The newly constituted arbitral tribunal issued a second award in the Applicant’s favor. The Respondent’s application to annul the second award was rejected by the Turkish Court of Cassation. The Applicant sought enforcement of the second award in Germany, which the Respondent opposed arguing that: (i) it was not given an opportunity to present its case under Article V(1)(b) NYC; (ii) that pursuant to Article V(1)(c) NYC the dispute was not covered under the arbitration agreement as the arbitration agreement applied only to disputes involving the company Atlanata Tuerkiye Ltd. Sireketi and the arbitral tribunal had misinterpreted the arbitration agreement; (iii) that under Article V(1)(d) NYC, the arbitral proceedings did not comply with the provisions of the Turkish Code of Civil Procedure which was the law of the country in which the arbitration is seated ; and (iv) that the recognition and enforcement of the arbitral award violated German public policy (Article V(2)(b) NYC). The Hanseatisches Oberlandesgericht (Higher Regional Court) Bremen granted leave to enforce the second arbitral award. It found that the formal requirements under Article IV NYC had been met. It then addressed the grounds for refusal of enforcement that the Respondent had raised. The Hanseatisches Oberlandesgericht held that the Respondent´s right to present its case under Article V(1)(b) NYC had not been violated since it had been given the opportunity to present, and indeed had presented, its defenses in both the first and second arbitral proceedings. To the extent that the arbitral tribunal had disregarded any defenses raised by the Respondent, this could merely be relevant under the aspect of a potential violation of the right to be heard (under Article V(2)(b) NYC). The Oberlandesgericht also rejected the Respondent’s defense under Article V(1)(c) NYC. It held that disputes regarding the present company were covered under the arbitration agreement because the company was not a different enterprise but had merely changed its name. In addition, it rejected the Respondent’s argument that the Turkish courts had misinterpreted the arbitration agreement holding that under the principle of automatic recognition of foreign courts the German courts were bound by the decision of the Turkish courts, which had conclusively confirmed the jurisdiction of the arbitral tribunal. With respect to the Respondent´s allegations under Article V(1)(d) NYC that the arbitral tribunal did not decide in accordance with the Turkish Code of Civil Procedure, the Hanseatisches Oberlandesgericht stated that by agreeing on the Arbitral Commission of the Istanbul Chamber of Commerce and Industry, the parties also agreed on the application of its Arbitration Rules and that the arbitral tribunal had conducted its proceedings in compliance with such rules. The Hanseatisches Oberlandesgericht further dismissed the Respondent´s argument that the enforcement of the award violated German public policy under Article V(2)(b) NYC because the arbitral tribunal had allegedly not considered certain arguments and evidence submitted by the Respondent. It stated that a violation of due process could only have occurred in the case where the relevant evidence could have influenced the outcome of the proceedings. Moreover, it clarified that German international public policy was violated only when the “decision of the foreign arbitral tribunal was rendered in proceedings that were to such an extent at odds with basic principles of German procedural law, that in the German legal system the decision cannot be deemed to have been rendered in proper legal proceedings because of a grave defect that affects the principles of public and economic life”. It further noted that, since international arbitral tribunals are composed of arbitrators with different domestic legal backgrounds, the requirements regarding the extent to which an arbitral award discusses the respective parties’ arguments as well as regarding the overall reasoning of the decision were lower and only needed to meet the more lenient requirements of German international public policy. Moreover, the Hanseatisches Oberlandesgericht also rejected the Respondent’s argument that the arbitral tribunal had wrongly concluded that the Applicant’s claims were not time-barred. It reasoned that it could only assess whether an arbitral award had correctly applied the substantive law if it were determinative of whether the recognition of the arbitral award violated public policy. However, it found, that there was no ground to assume a violation of public policy in the present circumstances since that would mean that the application of the relevant Turkish substantive law was in such stark contrast to the fundamental principles of German law and the perceptions of justice contained therein that it would be intolerable under domestic standards. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1332&opac_view=6 Spain / 02 September 1999 / Spain, Tribunal Supremo (Supreme Court) / Salvador Caetano Industria Metalúrgica e Vehículos de Transporte S.A. v. Automoción Industrial S.A. / ATS 655/1999
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 02 September 1999 Parties Salvador Caetano Industria Metalúrgica e Vehículos de Transporte S.A. v. Automoción Industrial S.A. Case number ATS 655/1999 Applicable NYC Provisions I | II | IV | IV(1) | IV(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=4076&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 04 May 1999 / Spain, Tribunal Supremo (Supreme Court) / Finora Canadá Ltd v. Productos agrícolas Cano S.A. / ATS 949/1999
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 04 May 1999 Parties Finora Canadá Ltd v. Productos agrícolas Cano S.A. Case number ATS 949/1999 Applicable NYC Provisions I | II | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | 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=4075&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 15 April 1999 Parties R S.A. v. A Ltd. Applicable NYC Provisions IV | IV(1) | IV(1)(a) Source Original decision obtained from the registry of the Cour de Justice de Genève
Languages English Summary On 5 June 1996, A and R entered into a sales contract providing for arbitration pursuant to the rules of CIETAC of the China Council for the Promotion of International Trade (the “Chinese Commission for Arbitration” or “CCA”). A dispute arose between the parties and the CCA rendered an award in A’s favor. A sought to enforce the award in Switzerland by providing to the Tribunal de Première Instance of Geneva (Geneva Tribunal of First Instance) a copy of the contract, the original award in Chinese with a complete translation in French, of which the first and the last pages were sworn to be in conformity with the original. The Tribunal de Grande Instance granted enforcement of the award. R appealed and challenged enforcement on the grounds that A had not complied with Article IV NYC. It argued that A had only supplied the Tribunal de Première Instance with a non-certified copy of the main contract (containing the arbitration agreement), the original award in Chinese and a French translation of the award that was certified on the first and last pages only. The Cour de Justice de Genève (Court of Justice of Geneva) dismissed the appeal. It held that pursuant to Article 194 of the Swiss Private International Law, the NYC was applicable to the recognition and enforcement of awards rendered abroad, regardless of whether the State where the award had been rendered was a party to the NYC. The Cour de Justice stated that the formal requirements of Article IV NYC should be construed in a flexible manner. It recalled that the NYC was meant to improve recognition and enforcement of arbitral awards, and in particular, the party seeking enforcement only needed to comply with Article IV NYC, after which the burden shifts to the party opposing enforcement to prove a ground for denial of enforcement. The Cour de Justice held that the party seeking enforcement must at least provide the arbitration agreement and the arbitral award. It noted that R had admitted that A had submitted the original copy of the award and that although the translation the first and last pages of the award were certified, these were the most crucial pages since they established the identity of the parties and contained the final decision of the arbitral tribunal. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=931&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFCyprus / 28 January 1999 / Cyprus, Ανώτατο Δικαστήριο Κύπρου (Supreme Court of Cyprus) / Udruzena Beogradska Banka v. Westacre Investments, Inc. / Civil Appeal No. 9423
Country Cyprus Court Cyprus, Ανώτατο Δικαστήριο Κύπρου (Supreme Court of Cyprus) Date 28 January 1999 Parties Udruzena Beogradska Banka v. Westacre Investments, Inc. Case number Civil Appeal No. 9423 Applicable NYC Provisions III | IV | V | V(1) Source http://www.cylaw.org (CyLaw website)
Languages Greek, Modern (1453-) affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6630&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 01 December 1998 / Spain, Tribunal Supremo (Supreme Court) / Lenersan Poortman B.V. v. Salvador Martínez Mari S.L. / ATS 968/1998
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 01 December 1998 Parties Lenersan Poortman B.V. v. Salvador Martínez Mari S.L. Case number ATS 968/1998 Applicable NYC Provisions I | II | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(2) | V(2)(a) | 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=4077&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 06 October 1998 / Spain, Tribunal Supremo (Supreme Court) / Delta Cereales España S.L. v. Barredo Hermanos S.A. / ATS 596/1998
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 06 October 1998 Parties Delta Cereales España S.L. v. Barredo Hermanos S.A. Case number ATS 596/1998 Applicable NYC Provisions I | II | II(2) | IV | IV(1) | IV(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=4078&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 29 September 1998 / Spain, Tribunal Supremo (Supreme Court) / Compagne Continentale v. Piensos Cuarte S.A. / ATS 828/1998
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 29 September 1998 Parties Compagne Continentale v. Piensos Cuarte S.A. Case number ATS 828/1998 Applicable NYC Provisions I | II | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | 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=4080&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 29 September 1998 / Spain, Tribunal Supremo (Supreme Court) / ETS Sebtigrains v. Armengol Hermanos S.A. / ATS 1436/1998
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 29 September 1998 Parties ETS Sebtigrains v. Armengol Hermanos S.A. Case number ATS 1436/1998 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | IV(2) | V | V(2) | V(2)(a) | 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=4079&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 08 September 1998 / Spain, Tribunal Supremo (Supreme Court) / Amper, S.A. v. Sepa Technologies Ltd., Co. / ATS 103/1998
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 08 September 1998 Parties Amper, S.A. v. Sepa Technologies Ltd., Co. Case number ATS 103/1998 Applicable NYC Provisions I | IV | IV(1) | IV(1)(a) | V | V(2) 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=4662&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFGermany / 30 July 1998 / Germany, Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court of Hamburg) / N/A / 6 Sch 3/98
Country Germany Court Germany, Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court of Hamburg) Date 30 July 1998 Parties N/A Case number 6 Sch 3/98 Applicable NYC Provisions II | II(1) | IV | II(2) | IV(1) | V | V(1) Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4135&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 07 July 1998 / Spain, Tribunal Supremo (Supreme Court) / Unión de Cooperativas Agrícolas Epis-Centre v. Aguicersa S.L. / ATS 587/1998
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 07 July 1998 Parties Unión de Cooperativas Agrícolas Epis-Centre v. Aguicersa S.L. Case number ATS 587/1998 Applicable NYC Provisions I | II | II(2) | IV | IV(1) | IV(1)(b) | V | 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=4024&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Obergericht des Kantons Zug Date 27 February 1998 Case number JZ 1997/104.161 Applicable NYC Provisions II | IV | IV(2) | V Source Original decision obtained from the registry of the Obergericht des Kantons Zug
Languages English Summary A Russian party entered into a sales contract, in both Russian and German, with a Swiss party, which contained an arbitration clause. A dispute arose and the Russian party obtained an arbitration award from the International Commercial Arbitration Court (ICAC) at the Chamber of Commerce and Industry of the Russian Federation, which it sought to enforce at the Kantonsgericht (Cantonal Court) Zug. The Kantonsgericht denied recognition and enforcement, holding that the Russian party had not shown that the German translation of the arbitral award had been certified by an official or sworn translator or a diplomatic or consular agent in accordance with Article IV(2) NYC. The Russian party appealed from the decision to the Obergericht (Higher Cantonal Court) Zug. The Swiss party opposed enforcement on the grounds that the translation of the award provided by the Russian party was not in compliance with Article IV(2) NYC. The Russian party argued that the German translation was prepared by a notary public, which confirmed that the translation corresponded to the original text, and that the translation contained an apostille after the signature of the notary public. The Obergericht dismissed the appeal. After noting that the arbitration agreement was in compliance with Article II NYC, it stated that an enforcement court had to assess ex officio whether the requirements of Article IV NYC were fulfilled. It observed that where the arbitral award was not in an official language of Switzerland, the applicant needed to provide a translation of the award that was certified by an official or sworn translator or by a diplomatic or consular agent in accordance with Article IV(2) NYC. It stated that such a certification only needed to comply with the law at the arbitral seat and that the procedural cantonal law could soften or even eliminate the certification requirement. It noted that the purpose of the translation requirement was to provide the enforcement judge, who was not familiar with the language of the original award, with a secure basis on which to assess not only the defenses raised by the enforcement debtor but also the grounds under Article V(2) NYC, which it needed to consider ex officio. The Obergericht found that the translation provided by the Russian party did not meet the requirements under Article IV(2) NYC because the notary public had not certified the accuracy of the translation, but only the authenticity of the copy of the arbitral award used for the translation. The Obergericht noted that generally a translation made by a third party and certified by a notary public who is capable of understanding the language of the translation – if done properly – would meet the criteria of Article IV(2) NYC. It found that a separate signature of the notary public for a remark in Russian after the translation could not be taken into account because, being in Russian, it could not be understood by the court. It also noted that the apostille could also not effectuate a diplomatic or consular certification of the translation. Finally, the Obergericht stated that its decision that the translation did not fulfill the requirements of Article IV(2) NYC was not overly formalistic given that the Russian party could have easily have obtained and provided a diplomatic or consular certification at the Swiss diplomatic representation in Moscow or at the Russian diplomatic representation in Switzerland. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1419&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 17 February 1998 / Spain, Tribunal Supremo (Supreme Court) / Union de Cooperativas Agrícolas Epis-Centre v. La Palentina S.A. / ATS 1451/1998
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 17 February 1998 Parties Union de Cooperativas Agrícolas Epis-Centre v. La Palentina S.A. Case number ATS 1451/1998 Applicable NYC Provisions II | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(1)(b) | V(2) | V(2)(a) | 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=4023&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 11 December 1997 Parties X v. Y Case number C/20312/1997 Applicable NYC Provisions IV | IV(1) | IV(1)(b) | V | V(2) | V(2)(b) Source Original decision obtained from the registry of the Cour de Justice de Genève
Languages English Summary X, a Swiss company, and Y, a Chinese company, entered into three contracts in 1994 for the sale of Chinese peanuts (the “1994 Contracts”). The general conditions were printed on the reverse side of the first two contracts and included an arbitration agreement providing for arbitration in the State of the respondent. The arbitration clause was completed by typing machine and stated “if any, shall be in Beijing, China”. A previous contract had been entered into by the parties in 1993 providing for arbitration at the place of the registered office of the respondent. A dispute arose between the parties. Pursuant to the arbitration agreement contained in the 1994 Contracts, Y seized the Chinese Commission for Arbitration on 4 July 1995. A month later, Y sought to provisionally attach assets belonging to X in the Netherlands. X brought this matter before the Chinese Commission for Arbitration which held that the Holland Court had jurisdiction to rule on such conservatory measures. On 5 March 1996, the arbitral tribunal rendered an award in Beijing in favor of Y which was not subject to any appeal. On 9 May 1997, Y served X with a debt collection order directing X to pay sums due under the award. X opposed the debt collection order. Y brought a request for final dismissal of the objection to pay (mainlevée) and for enforcement of the arbitral award before the Tribunal de Première instance (First Instance Tribunal). On 17 September 1997, the Tribunal de Première instance, based on the 1994 Contracts, ordered the provisional dismissal of the objection to pay. Both X and Y appealed. X argued that certain amounts due to X should be set-off against the award and, in the alternative, that the award violated the NYC and Swiss public order. The Cour de Justice de Genève (Court of Justice of Geneva) annulled the decision of the Tribunal de Première Instance, ordered the definitive dismissal of the objection to pay, thus granting enforcement of the award. The Cour de Justice de Genève held that pursuant to Article 194 of the Swiss Private International Law (“SPIL”) the NYC was applicable, as Y’s request was based on an arbitral award rendered abroad. The Cour de Justice found that the award was final because the arbitration rules did not provide for an appeal against the award. The Cour de Justice de Genève rejected X’s argument under Article IV(1)(b) NYC that Y had not filed the arbitration agreement contained in the third contract. It noted that X had not objected to the jurisdiction of the arbitral tribunal, nor had it filed the contracts in the arbitration proceedings, which had been made in two copies. It held that the third contract referred to the same general conditions as the first two contracts, and that there, as a consequence, an arbitration agreement providing for arbitration under the Chinese Commission for Arbitration existed. Turning to the allegation that enforcement would violate Swiss public policy, the Cour de Justice de Genève held that a violation of Article V(2)(b) NYC could be examined sua ponte by the Court, but the requirements for such a violation would only be satisfied where there was a violation of fundamental principles of Swiss legal order, which was not the case in the matter at hand. It therefore dismissed the argument. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1541&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFAustria / 26 November 1997 / Austria, Oberster Gerichtshof (Supreme Court) / B**** Inc. v. S**** GmbH / 3Ob320/97y
Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 26 November 1997 Parties B**** Inc. v. S**** GmbH Case number 3Ob320/97y Applicable NYC Provisions I | I(3) | IV | IV(1) | V | V(1) | V(1)(a) | V(1)(b) | V(1)(e) | XIV Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3892&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFGermany / 18 September 1997 / Germany, Landgericht Hamburg (Regional Court of Hamburg) / N/A / 305 O 453/96
Country Germany Court Germany, Landgericht Hamburg (Regional Court of Hamburg) Date 18 September 1997 Parties N/A Case number 305 O 453/96 Applicable NYC Provisions IV | IV(1) | IV(1)(a) | IV(1)(b) | V | V(1) | V(1)(b) | V(2) | V(2)(b) | VII Source Registry of the Court
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4072&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 03 June 1997 / Spain, Tribunal Supremo (Supreme Court) / Expolco Trading, S.L. v. Mercantil Impexpoes, S.A. / ATS 527/1997
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 03 June 1997 Parties Expolco Trading, S.L. v. Mercantil Impexpoes, S.A. Case number ATS 527/1997 Applicable NYC Provisions I | III | IV | V | V(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=4660&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFUnited States / 31 July 1996 / United States, U.S. District Court, District of Columbia / Chromalloy Aeroservices v. Arab Republic of Egypt / 94-2339
Country United States Court United States, U.S. District Court, District of Columbia Date 31 July 1996 Parties Chromalloy Aeroservices v. Arab Republic of Egypt Case number 94-2339 Applicable NYC Provisions VII | V | IV | VII(1) | V(1)(e) Languages English Summary Chromalloy Aeroservices (“Chromalloy”), an American corporation, entered into a military procurement contract with the Air Force of the Arab Republic of Egypt (“Egypt”) to provide parts, maintenance, and repair for helicopters. A dispute arose and Chromalloy commenced arbitration proceedings on the basis of the arbitration clause in the contract. An arbitral tribunal found for Chromalloy. Egypt filed an appeal with the Cairo Court of Appeals, seeking nullification of the award, and filed a motion with the United States District Court for the District of Columbia to adjourn Chromalloy’s petition to enforce the award. The Cairo Court of Appeals suspended the award and Egypt filed a motion in the United States filed a motion in the District Court to dismiss Chromalloy’s petition to enforce the award. Subsequently, the Cairo Court of Appeals issued an order nullifying the award. The District Court granted Chromalloy’s petition to enforce the arbitration award and rejected Egypt’s motion to dismiss. After satisfying itself that Chromalloy had complied with the formal requirements of Article IV NYC, the District Court noted that under Article V(1)(e) NYC it had discretion to decline to enforce the award that “has ... been set aside ... by a competent authority of the country in which, or under the law of which, that award was made”. It further noted that while Article V NYC provides a discretionary standard, Article VII(1) NYC requires that “the provisions of the present Convention shall not ... deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law ... of the count[r]y where such award is sought to be relied upon”. The District Court thus concluded that it had to consider Chromalloy’s claims under the applicable U.S. law and found that the arbitral award was proper as a matter of U.S. law. It further found that the arbitration agreement between Egypt and Chromalloy precluded an appeal to the Egyptian courts. It concluded that the decision of the Cairo Court of Appeals nullifying the award did not have res judicata effect in the United States. Lastly, it found that recognizing the decision of the Egyptian court would violate United States public policy in favor of final and binding arbitration of commercial disputes. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1139&opac_view=6 Attachment (1)
Original PendingAdobe Acrobat PDFAustria / 29 May 1996 / Austria, Oberster Gerichtshof (Supreme Court) / D**** v. H**** GmbH / 3Ob2098/96t
Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 29 May 1996 Parties D**** v. H**** GmbH Case number 3Ob2098/96t Applicable NYC Provisions IV | IV(1) | IV(1)(b) | IV(2) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3893&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSwitzerland / 07 August 1995 / Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino / 14.94.00021
Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 07 August 1995 Case number 14.94.00021 Applicable NYC Provisions III | IV | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) | V(1)(e) | V(2) | V(2)(b) | VII | VII(1) Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary An award was rendered in Italy on 22 December 1993. Upon X’s request, the Ufficio d’Esecuzione di Lugano (Debt Collection Office of Lugano) issued a payment order, to which Y raised an objection (opposizione). X requested the dismissal of the objection (rigetto definitivo) before the Pretore del Distretto di Lugano (First Instance Court of Lugano). In response, Y relied on Article VII NYC and claimed that X had not complied with the provisions of the Convention between Switzerland and Italy on the recognition and enforcement of judgments of 1933, which provided that the award had to be enforced in Italy first, and that absent such enforcement the award had not yet become binding on the parties pursuant to Article V(1)(e) NYC. Y also argued that (i) the award was null and void according to Article V(1)(d) NYC, since the arbitrators had not complied with the 90 day time limit to render the award, (ii) it had been unable to present its case, in violation of Article V(1)(b) NYC, because the arbitrators had continued with the proceeding after Y’s counsel resigned, (iii) the arbitration agreement was null and void pursuant to Article V(1)(a) NYC since the subject-matter of the dispute was not capable of settlement by arbitration under the law applicable to the agreement (i.e. Italian law), (iv) the award was contrary to Swiss public policy because Y had been unable to present its case, and (v) the arbitrators had not complied with the arbitration agreement because they had decided ex aequo et bono instead of applying the law. In response X argued, inter alia, that pursuant to Article III, the award had become binding on the parties as soon as it had been signed by the arbitrators, irrespective of its recognition and enforcement in Italy. The Pretore rejected Y’s arguments and dismissed the objection. Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) dismissed the appeal, thus dismissing the objection to the payment order and allowing the enforcement of the award to proceed. The Tribunale d’Appello observed that pursuant to Article 194 of the Federal Act on Private International Law, the NYC is applicable to the enforcement and recognition of foreign awards. Referring to Article VII(1) NYC, the Tribunale d’Appello noted that the Federal Council had decided that a party seeking to recognize or enforce a foreign award could either rely on the provisions of the NYC or on any other more favorable provisions contained in a convention binding Switzerland or under Swiss law. As a consequence, the Tribunale d’Appello held that X was entitled to rely on the provisions of the NYC, which do not require obtaining the award to be enforced in Italy in order to be recognized and enforced in Switzerland. It further held that, pursuant to Article V(1)(e) NYC, the award became binding on the parties as soon as it was signed by the arbitrators. The Tribunale d’Appello rejected Y’s claim that it had been unable to present its case, holding that it had had sufficient time to appoint a new counsel but had failed to do so. It also dismissed Y’s objections that the arbitration agreement was null and void according to Article V(1)(a) NYC, and that the subject-matter was not capable of settlement by arbitration. Lastly, the Tribunale d’Appello held that the recognition and enforcement of the award did not violate Swiss, recalling that according to Swiss case law and doctrine, such violation occurred only when the recognition or enforcement of the award was against the most fundamental rules of Swiss law, which was not the case here. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1300&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFCyprus / 28 July 1995 / Cyprus, Ανώτατο Δικαστήριο Κύπρου (Supreme Court of Cyprus) / Beogradska Banka D.D. / Αpplication No. 74/95
Country Cyprus Court Cyprus, Ανώτατο Δικαστήριο Κύπρου (Supreme Court of Cyprus) Date 28 July 1995 Parties Beogradska Banka D.D. Case number Αpplication No. 74/95 Applicable NYC Provisions III | IV | V | V(2) | V(2)(b) Source http://www.cylaw.org (CyLaw website)
Languages Greek, Modern (1453-) affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6629&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFItaly / 07 June 1995 / Italy, Corte di Cassazione (Supreme Court) / WTB - Walter Thosti Boswau Bauaktiengesellschaft v. Costruire Coop. srl / 6426
Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 07 June 1995 Parties WTB - Walter Thosti Boswau Bauaktiengesellschaft v. Costruire Coop. srl Case number 6426 Applicable NYC Provisions IV | III | V Languages English Summary An Italian company, Costruire Coop, subcontracted certain construction works to a German company, Walter Thosti Boswau Bauaktiengesellschaft (“WTB”). The parties’ contract contained an arbitration clause providing for arbitration before the International Chamber of Commerce (ICC). A dispute arose and Costruire Coop sent WTB a notice of termination for the contract based on alleged breaches of the same, and also filed a request for arbitration against WTB. On 27 June 1988, the arbitral tribunal rendered a partial award on liability, holding Costruire Coop liable for wrongful termination of the contract. On 4 August 1989, the arbitral tribunal rendered a final award on damages. WTB sought enforcement of the final award in Italy but the Corte di Appello di Bologna (Bologna Court of Appeal) held that WTB’s petition for enforcement was inadmissible given that (i) WTB should have sought enforcement of the partial award on liability along with the final award on damages, as they constituted a single and indivisible decision, and (ii) it had not met the requirements of Article IV NYC as it had not provided the original or a certified copy of the partial award in addition to the final award. WTB appealed the decision arguing that a failure to request enforcement of the partial award on liability is not a ground for refusing enforcement of the final award on damages. The Corte Suprema di Cassazione (Supreme Court) reversed the decision of the Corte di Appello di Bologna on the ground that the request for enforcement can be limited to the final award and need not extend to the partial award on liability. The Corte di Suprema di Cassazione first observed that the new Articles 839 and 840 of the Italian Code of Civil Procedure (the wordings of which are equivalent to Article IV and V NYC did not apply to the instant case as the enforcement request had been filed prior to the entry into force of the 1994 Italian arbitration law reform. It noted that the provisions of the NYC, which are applicable and have precedence over the provisions of the Code of Civil Procedure, provide for a liberal system of enforcement and recognition of foreign awards. It added that the provisions of the NYC are at a crossroads between the view that an international arbitral award is a decision whose efficacy depends entirely on the will of the parties independent of domestic legal orders, and the more traditional view pursuant to which arbitration is connected to the domestic legal order of a State and the recognition of an award derives from a concession of other states under a condition of reciprocity. The Corte Suprema di Cassazione noted in this respect that although Article III NYC leaves it to domestic legislators to regulate the proceedings for the recognition of foreign awards, it provides that contracting states shall not impose substantially more onerous conditions or higher fees than those imposed on recognition or enforcement of domestic awards. The Court Suprema di Cassazione concluded that the NYC sets forth an autonomous micro-system for both the substantive and procedural requirements of the enforcement of foreign awards. Under such a system, the burden on the party requesting enforcement is limited to the production of certain documents required under Article IV NYC, and there is a presumption of enforceability of the award that may only be reversed by the courts ex officio on one of the two grounds of Article V(2), or by the defendant proving that one of the five exhaustive grounds for refusal of enforcement listed in Article V(1) is met. The Corte Suprema di Cassazione therefore held that in the instant case, the lower court had erred in ruling in terms of admissibility of the request for enforcement, as the only grounds for declaring such a request inadmissible are those set forth in Article IV NYC (i.e., the production of the original or of an authentic copy of the award and of the arbitration agreement) which do not include a ground of indivisibility between partial and final awards. The Corte Suprema di Cassazione held that the lower court should rather have analyzed whether Costruire Coop’s objection that the separate enforcement of the final award, allegedly aimed at avoiding a review of a non-final award that was not enforceable, could constitute a breach of one of the exhaustively listed grounds for refusing enforcement, that either has to be proven by the opposing party under Article V(1) NYC, or may be raised by the court ex officio as per Article V(2) NYC. The Corte Suprema di Cassazione concluded that absent proof by the opposing party or an ex officio finding from the court that the enforcement of only the award on damages, without the award on liability, constituted a violation of public policy or a violation of the other grounds in Article V NYC, the request for enforcement of the final award had to be granted. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1413&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFHong Kong / 14 March 1995 / Hong Kong, High Court, In the Supreme Court of Hong Kong / Wah Sin Electronics Industrial Company Limited Fujian v. Tan Lok trading as Wahton Company / HCMP 2843/1993
Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 14 March 1995 Parties Wah Sin Electronics Industrial Company Limited Fujian v. Tan Lok trading as Wahton Company Case number HCMP 2843/1993 Applicable NYC Provisions V | IV 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=4530&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 12 October 1993 / India, Supreme Court / Brace Transport Corporation of Monrovia, Bermuda v. Orient Middle East Lines Ltd and ors / Civil Appeals Nos 5438-39 of 1993
Country India Court India, Supreme Court Date 12 October 1993 Parties Brace Transport Corporation of Monrovia, Bermuda v. Orient Middle East Lines Ltd and ors Case number Civil Appeals Nos 5438-39 of 1993 Applicable NYC Provisions I | II | III | IV | V Source http://www.spotlaw.in (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary Brace Transport Corporation (“Brace”) entered into a contract with the second respondent (“Orri”) for the sale of a vessel. Orri nominated the first respondent (“Orient”) to purchase the vessel. A dispute arose and the matter was referred to arbitration, where an award was rendered in favour of Brace. After the award was rendered, Brace found out that the vessel had been sold to the third respondent, a company owned by the Indian Government, although the third respondent had yet to pay Orient and Orri. In the meantime, the third respondent sold the vessel to the fourth respondent to break it up: the vessel was situated in India. Brace applied to the Bhavnagar Court, in Gujarat, India, to enforce the award against the vessel, beached in India. The Bhavnagar Court found for Brace but its decision was overturned on appeal to the High Court of Gujarat. Brace appealed the decision of the High Court of Gujarat before the Supreme Court of India. The Supreme Court allowed the appeal, holding that the award could be enforced against the proceeds of sale which had not yet been paid by the third respondent to Orri and Orient. However, the Supreme Court made clear that the Bhavnagar Court had no jurisdiction to enforce a maritime lien, even if such a lien existed, as the vessel was no longer an asset of either Orri or Orient. In reaching this conclusion, the Supreme Court referred to the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”), stating that the 1961 Act was “placed on the statute book to enable effect to be given to the [NYC]”. Commenting on Section 2 (incorporating, in modified language, Articles I and II NYC), the Court held that a condition for an award to fall within the auspices of the 1961 Act as a “foreign award” is that the award is made in a territory which Central Government of India has notified in the Official Gazette to be a territory applying the NYC. The Court also reviewed the other provisions of the NYC, noting that Section 3 refers to Article II NYC which provides for the stay of a legal action in favour of arbitration. After reviewing the content of Articles I(1), II, III, IV and V NYC, the Court noted that the NYC speaks of “recognition and enforcement” of an award. According to the Court, an award may be recognised but not enforced, enforcement involving the use of “legal sanctions to ensure that [the award] is carried out”. reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1381&opac_view=6 Attachment (1)
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