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United States / 24 August 1990 / United States, U.S. District Court, Southern District of New York / Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Indus. Y Comercial / 90 Civ. 0720 (KC)
Country United States Court United States, U.S. District Court, Southern District of New York Date 24 August 1990 Parties Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Indus. Y Comercial Case number 90 Civ. 0720 (KC) Applicable NYC Provisions V | III | V(1)(b) | V(1)(c) | V(1)(e) | V(2)(b) Languages English Summary International Standard Electric Corporation (“ISEC”), an American corporation, and Bridas Sociedad Anonima Petrolera, (“Bridas”), an Argentinean company, entered into a shareholders agreement. A dispute arose and arbitration was commenced in Mexico City pursuant to an arbitration clause in the agreement which provided for arbitration before the International Chamber of Commerce (“ICC”) under U.S. law. An arbitral tribunal ruled in favor of Bridas. ISEC filed a petition in the United States Court for the Southern District of New York to vacate the award. Bridas cross-petitioned the District Court and sought enforcement of the award under Article III NYC. ISEC opposed the enforcement on three grounds. First, it argued that it was unable to present its case within the meaning of Article V(1)(b) NYC. Second, it argued that the arbitrators had exceeded their authority by awarding damages based on equitable norms rather than legal grounds, in violation of Article V(1)(c) NYC. Third, it argued that enforcement of the award would be contrary to the public policy of the United States pursuant to Article V (2)(b) NYC because “the secret procedures” utilized by the arbitrators in appointing an expert violated due process standards. The District Court dismissed SEC’s petition to vacate the award for lack of subject matter jurisdiction and granted Bridas’ cross-petition to enforce the award. In so ruling, it found that the “competent authority” within the meaning of Article V(1)(e) NYC, for entertaining the action of setting aside the award, is the “country in which, or under the law of which, that award was made”. The Court found that the contested language “the country under the law of which that award was made” meant the procedural law of the arbitration and not the substantive law of the contract. Hence, only the courts of Mexico, where the arbitration took place, had jurisdiction under the NYC to vacate the award. The District Court found no basis under the NYC to refuse enforcement of the award. The Court found that SEC had waived its right to object to the tribunal’s decision to appoint an independent expert since it did not object to the appointment procedure at the time. There were therefore no grounds for non-enforcement pursuant to Articles V(1)(b) NYC and V(1)(b) NYC. The Court also found that the appointment procedure did not amount to a violation of U.S. public policy within the meaning of Article V(2)(b) NYC. In connection with the second defense under Article V(1)(c) NYC, the District Court found it to be a disguised “manifest disregard of law” defense, which it dismissed on the grounds that it was prevented under the NYC to reconsider the factual findings of the arbitral panel. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1157&opac_view=6 Attachment (1)
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Country Egypt Court Egypt, Court of Cassation Date 16 July 1990 Parties Egyptian Saudi Hotels Company v. Kurt & Daves Corporation Case number 2994/57 Applicable NYC Provisions V | II | I | V(1)(b) Languages English Summary On 14 September 1978, Egyptian Saudi Hotels Company (“Egyptian Saudi Hotels”) and Kurt & Daves Corporation (“Kurt & Daves”) concluded a contract by which Kurt & Daves undertook to provide architectural design and engineering services for the construction of a hotel. Article 9 of said contract provided that it was governed by English law and that all matters, claims and disputes arising from the contract which could not be amicably settled should be subject to arbitration in London in accordance with the Rules of the International Chamber of Commerce (the “ICC Rules”). Claiming that Egyptian Saudi Hotels breached the contract, Kurt & Daves initiated arbitration proceedings. On 28 October 1983, an award was rendered in Kurt & Daves’ favor. On 26 February 1987, the Court of First Instance issued a judgment granting enforcement to the arbitral award, which was confirmed on 26 November 1987 by the Cairo Court of Appeal. Egyptian Saudi Hotels challenged the judgment of the Court of Appeal before the Court of Cassation and alleged, inter alia, that the Court of Appeal incorrectly applied the law since Egyptian Saudi Hotels was not a Party to the contract, and that it did not verify whether Egyptian Saudi Hotels was correctly given notice of the arbitration proceedings and whether Egyptian Courts had jurisdiction over the dispute, as is required by the Egyptian Code of Civil and Commercial Procedure (“Code of Procedure”). The Court of Cassation rejected the challenge made by Egyptian Saudi Hotels and upheld the judgment of the Court of Appeal granting enforcement to the award. The Court considered that, in accordance with Articles I and II NYC, each State party to the NYC recognizes the res judicata effect (“autorité de la chose jugée”) of foreign arbitral awards unless one of the grounds for non-enforcement contained in Article V NYC is established and that arbitral awards have a res judicata effect (“autorité de la chose jugée”) starting from the date of their issuance and maintain this res judicata effect as long as they exist. Therefore, the judge may not, when ordering enforcement of arbitral awards, verify whether they are fair or correct on the merits. Accordingly, Egyptian Saudi Hotels’ challenge to the Court of Appeal’s judgment on the basis that it was not a party to the contract does not fall under any of the grounds for non-enforcement of arbitral awards. The Court further noted that, given that Egypt acceded to the NYC by Presidential Decree No. 171/1959, the NYC is applicable like any other law of the Egyptian State, even when it contradicts the Code of Procedure. Egyptian Saudi Hotels’ challenge on the basis that the Court of Appeal did not verify whether Egyptian Courts have jurisdiction over the dispute must be rejected, since this is not required by the NYC. According to Article 22 of the Civil Code, the rules of procedure are governed by the law of the forum and the ground contained in Article V(1)(b) NYC for non-enforcement of awards is a rule of procedure which is subject to the law of the judge. The Court rejected Egyptian Saudi Hotels’ challenge given that, according to the arbitral award, the sole arbitrator was assured that notice was sent to Egyptian Saudi Hotels and that the latter did not provide evidence establishing that it was not given notice in accordance with the law of the judge. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=385&opac_view=6 Attachment (1)
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Country Egypt Court Egypt, Court of Cassation Date 21 May 1990 Parties Harbottle Company Limited v. Egypt for Foreign Trade Company Case number 815/52 Applicable NYC Provisions V | IV | V(1)(c) | V(2)(b) Languages English Summary On 15 November 1975, Harbottle Company Limited (“Harbottle”) and Egypt for Foreign Trade Company (“Egypt Foreign Trade”) entered into a contract by which Harbottle undertook to supply a quantity of coal to Egypt Foreign Trade. The contract provided for the settlement of disputes through arbitration in London in accordance with the Arbitration Rules of the London Court of International Arbitration (“LCIA Arbitration Rules”). Harbottle initiated arbitration proceedings, claiming that Egypt Foreign Trade had breached its obligations under the contract. On 29 November 1978, the sole arbitrator issued an award ordering Egypt Foreign Trade to pay damages to Harbottle, along with 8% interest and arbitration costs. On 19 May 1980, Harbottle sought enforcement of the award before the South Cairo Court of First Instance, which rejected Harbottle’s request for enforcement. On 21 January 1982, the Cairo Court of Appeal overruled the judgment of the South Cairo Court of First Instance and granted enforcement to the award only to the extent of ordering Egypt Foreign Trade to pay damages. It also ordered Harbottle to pay the costs of the proceedings before the Court of First Instance for failing to submit the original award in those proceedings. On 2 March 1982, Harbottle challenged the judgment of the Cairo Court of Appeal before the Court of Cassation and alleged, inter alia, that the Cairo Court of Appeal had incorrectly applied the law by not enforcing the part of the award ordering Egypt Foreign Trade to pay interest and arbitration costs. Harbottle also claimed that it should not bear the costs of the proceedings before the Court of First Instance as it had produced a copy of the award which was equivalent to the original. The Court of Cassation partially overruled the judgment of the Cairo Court of Appeal and granted enforcement to the award, ordering Egypt Foreign Trade to pay damages, arbitration costs and interest, after reducing the interest rate to 5%. The Court noted that according to Articles V(1)(c) and V(2)(b) NYC, Egyptian Courts should reject the enforcement of foreign arbitral awards where they contravene public policy in Egypt and not where they only contravene mandatory legal rules. It held that where only part of an arbitral award contravenes public policy, Egyptian Courts should enforce those parts of the award which are not in contravention with public policy. It also stated that Egyptian Courts should refrain from reviewing the merits of the award. The Court found that the Egyptian legal rule allowing a maximum interest rate of 5% in commercial matters constituted a rule of public policy and granted enforcement to the order for payment of interest after limiting the interest rate to the 5% maximum. The Court granted enforcement to the order requiring payment of arbitration costs on grounds unrelated to the NYC. Finally, the Court of Cassation rejected Harbottle’s challenge to the decision of the Cairo Court of Appeal ordering Harbottle to bear the costs of the proceedings before the Court of First Instance. It observed that in accordance with Articles 299 and 301 of the Egyptian Code of Civil and Commercial Procedure and Article IV NYC, the party applying for enforcement of a foreign arbitral award had to provide the Court with the original award and arbitration agreement or a duly certified copy thereof, along with certified Arabic translations of these documents where the original documents are in a foreign language. The Court concluded that, as Harbottle had failed to provide the Court of First Instance with the required documents, the Cairo Court of Appeal had rightly ordered it to pay the costs of the proceedings before the Court of First Instance. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=967&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 26 April 1990 Case number III ZR 56/89 Applicable NYC Provisions V | V(2)(b) Source BGH Summary The Parties concluded a contract for the delivery of soybean flour providing for Grain and Feed Trade Association (GAFTA) arbitration in London. The United States placed an embargo on the merchandise. The Buyer accepted partial delivery but refused to take delivery of the rest of the merchandise once delivery became possible. The Seller claimed compensation. The award, affirmed in relevant parts by an appellate award rendered by the GAFTA Board of Appeal, denied the claim and granted the Buyer's counterclaim for damages for the Seller's non-performance. The Seller's action to set aside the award before the High Court in London failed. The Buyer's request for leave to enforce was granted by the Landgericht (Regional Court) Hamburg. This decision was confirmed by the Hanseatisches Oberlandesgericht (Higher Regional Court of Hamburg). The Bundesgerichtshof (Federal Supreme Court) affirmed the decision of the Oberlandesgericht, rejecting the Seller's objection of violation of due process under Article V(1)(b) NYC. It held that a party is barred from raising objections that it should have raised before the "juge d'appui" only where such objections relate to irregularities in the arbitral procedure which violate the law of the State where arbitration takes place, and the Seller's objection did not fail on that ground. Rather, the Court found that the Seller's objection failed because it had the right to be heard before the GAFTA Board of Appeal. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=229&opac_view=6 Attachment (1)
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Country Korea Court Korea, Supreme Court of Korea Date 10 April 1990 Parties GKN International Training (London) Limited v. Kukje Trading Co., Ltd. Case number 89Daka20252 Applicable NYC Provisions I | I(1) | I(3) | II | II(2) | III | IV | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) | V(2) | V(2)(b) Source Languages Korean Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6415&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 18 January 1990 Case number III ZR 269/88 Applicable NYC Provisions I | V | I(1) | V(1)(b) | V(2)(b) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary The parties concluded a contract for the sale of barley. A dispute arose and the Buyer initiated arbitration proceedings with the Grain and Feed Trade Association (GAFTA), which issued two awards ordering the Seller to pay damages to the Buyer. The Seller sought to have the awards annulled by the High Court of Justice in London but was unsuccessful. The Buyer sought enforcement of the award before the Landgericht (Regional Court) Hamburg. The Seller objected to the enforcement, arguing that the arbitral proceedings had been conducted deficiently since a third person had been involved as consultant in the oral hearing and the writing of the award. In addition, the Seller alleged that false testimony and insufficient factual statements by the Buyer had drawn an incorrect picture of the economic situation and that the arbitral tribunal had violated the Seller’s right to be heard. The Landgericht granted the enforcement of the first award in its entirety and part of the second award. The Seller unsuccessfully appealed the decision of the Landgericht to the Oberlandesgericht (Higher Regional Court) Hamburg. The Seller then appealed to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof confirmed the decision of the lower courts, stating that enforcement was subject to the NYC and Section 1044 of the German Civil Procedure Code, based on which it saw no impediments to granting enforcement. The Bundesgerichtshof stated that it did not need to decide whether the application should be assessed in accordance with Section 1044 of the German Civil Procedure Code or the NYC, since either would lead to enforcement being granted. The Bundesgerichtshof stated that both awards fulfilled the requirements of Section 1044(1) sentence 1 of the German Civil Procedure Code and Article I(1) NYC, since, as the Oberlandesgericht had stated, the arbitral awards had become binding upon the parties as they could no longer be challenged before an arbitral tribunal or state court. The Bundesgerichtshof held that recognition of the arbitral awards would not lead to a result that was in obvious contradiction with fundamental principles of German law (Section 1044(2) German Civil Procedure Code and Article V(2)(a) [sic] NYC). In this context, the Bundesgerichtshof found that the involvement of a legal consultant in the proceedings, by the tribunal, did not constitute a public policy violation since such a violation could not simply be assumed on the grounds of a deviation of a foreign arbitral procedure from mandatory domestic procedural law. It reasoned that a divergence was only relevant when it violated international public policy, which was a less restrictive standard for the recognition of foreign arbitral awards as compared to the regime for the recognition of domestic arbitral awards. According to the Bundesgerichtshof, the enforcement of a foreign arbitral award would only be refused if the arbitral proceedings had a severe defect that touched upon the fundamental basis of public and economic life, which was not the case here. With respect to the Seller’s contention that the arbitral tribunal had not appreciated that the Buyer did not have the necessary funds to secure the purchase price claim by way of a letter of credit, the Bundesgerichtshof held that this argument had already been raised before the arbitral tribunal and could therefore not be brought at the enforcement stage. It based this conclusion on the fact that the existence of grounds for revision under Section 580 of the German Civil Procedure Code, which would generally imply violations of international public policy, could no longer be raised in proceedings for recognition and enforcement of an arbitral award if the underlying facts had already been raised in the arbitral proceedings. The Bundesgerichtshof also rejected the alleged violation of the Seller’s right to be heard under Article 1044(2) No. 4 of the German Civil Procedure Code and Article V(1)(b) NYC. It held that, even if the tribunal had not addressed all of the Seller’s arguments, this did not violate the Seller’s right to be heard since an arbitral tribunal does not have to discuss its position vis-à-vis all of the parties’ arguments, rather, it is sufficient that the arbitral tribunal discusses the arguments that underlie its reasoning in the award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1335&opac_view=6 Attachment (1)
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Country France Court France, Tribunal de Grande Instance de Paris (Court of First Instance of Paris) Date 22 November 1989 Parties Société Acteurs Auteurs Associés (A.A.A.) v. Société Hemdale Film Corporation Case number 10247/89 Applicable NYC Provisions III | V | V(1) | V(2) Summary On 27 February 1989, an award was rendered in London in favor of Hemdale Film Corporation. The losing party (Acteurs, Auteurs Associés - AAA) sought to have the award declared unenforceable in France on the grounds that it was contrary to international public policy. Hemdale Film Corporation challenged the admissibility of the action by arguing that such action is not provided under the NYC (or allowed under French law) and that Article V NYC subjects the refusal of recognition and enforcement of foreign arbitral awards to a prior application for the recognition and enforcement of the said award. As a counterclaim, it requested the enforcement of the award. The Tribunal de Grande Instance de Paris (First Instance Court of Paris) reasoned that Article V NYC sets forth only the situations in which the recognition and enforcement of an arbitral award may be refused by the "competent authority", but does not define the procedural regime, which shall be determined by the country in which the award is sought to be relied upon in accordance with Article III NYC. It thus held that the NYC cannot be interpreted as excluding such action if it is admissible under the laws of a given country and found that, under French law, such action is inadmissible. The Tribunal de Grande Instance de Paris then rejected the counterclaim, noting that Hemdale Film Corporation should request the recognition and enforcement of the award before the President of the Tribunal de Grande Instance de Paris in accordance with Articles 1477 et seq. of the Code of Civil Procedure. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=130&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. Court of Appeals, Ninth Circuit Date 23 October 1989 Parties Ministry of Defense of the Islamic Republic of Iran v. Gould Inc., Gould Marketing, Inc., Hoffman Export Corporation, and Gould International, Inc. Case number 88-5879 / 88-5881 Applicable NYC Provisions II | I | IV | V | II(1) | I(1) | IV(1)(b) | V(1)(a) | V(1)(d) | V(1)(e) Languages English Summary The Ministry of War of the Imperial Government of Iran and Hoffman Electric Corporation, which later merged with Gould Marketing (“Gould”), entered into two agreements. Progress payments and performance under the contract were disrupted due to the Iranian revolution. Gould submitted claims before the Iran-U.S. Claims Tribunal seeking damages from Iran for breach of contract. The Tribunal issued a monetary award in favor of Iran. Iran sought confirmation and enforcement of the award in the United States District Court for the Central District of California. Gould argued that the District Court improperly exercised jurisdiction under Section 203 of the Federal Arbitration Act (“FAA”) and opposed the application on two grounds. First, it argued that there was no “agreement in writing” under Articles II and IV NYC. Second, it argued that the award did not fall within the ambit of the NYC because of an implied requirement under Article V(1)(e) NYC that the NYC applied only to awards made in accordance with national law, as opposed to international law. The United States Court of Appeals for the Ninth Circuit denied Gould’s motion to dismiss for lack of jurisdiction under Article 203 of the FAA. The Court first found that the award was subject to the NYC, as the requirements of Section 202 of the FAA had been fulfilled (namely, that (i) the award arose out of a legal relationship which was (ii) commercial in nature and (iii) was not entirely domestic in scope). The Court held that the award also satisfied the requirements of Article I(1) NYC and was “made in the territory of another Contracting State” by a “permanent arbitral bod[y]”. The Court found that Article IV(1)(b) NYC, which requires a party to submit "[t]he original agreement referred to in article II ... or a duly certified copy thereof”, and Article II(1) NYC, which requires that “each Contracting State shall recognize an agreement in writing […]”, both indicated that the award referred to in Section 203 of the FAA must emanate from a written arbitration agreement. The Court then explained that the Claims Settlement Declaration, which established the Iran-United States Claims Tribunal as a mechanism for binding third-party arbitration, satisfied “the agreement in writing” standard under the NYC. The Court further found that that an award need not be made “under a national law” for a court to entertain jurisdiction over its enforcement pursuant to the NYC. The Court concluded that if the parties choose not to have their arbitration governed by a “national law,” then the losing party could simply not avail itself of certain of the defenses listed in Article V(1)(a) and (e) NYC. see also :
- United States / 30 June 1992 / United States, U.S. Court of Appeals, Ninth Circuit / Ministry of Defense of the Islamic Republic of Iran v. Gould, Inc.; Gould Marketing, Inc.; Hoffman Export Corporation; Gould International, Inc. / 91-55135 / 91-55136
- I / 2. ANALYSIS (I) / ARTICLE I(1) / b. Awards “not considered as domestic awards in the State where their recognition and enforcement are sought” / §60
- I / 2. ANALYSIS (I) / ARTICLE I(1) / b. Awards “not considered as domestic awards in the State where their recognition and enforcement are sought” / §63
- I / ARTICLE I(2) / §68
- II / 2. ANALYSIS (II) / ARTICLE II(2) / a. An exchange / §49
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1153&opac_view=6 Attachment (1)
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Country Finland Court Finland, Supreme Court Date 27 February 1989 Parties Bankruptcy estate of Kommandiittiyhtiö Finexim O. Ivanoff (Finexim) and Ferromet Aussenhandelsunternehmen Case number S88/310 Applicable NYC Provisions V | V(2)(a) | V(2)(b) Source www.finlex.fi Languages English Summary Ferromet Aussenhandelsunternehmen (Ferromet) sold Kommandiittiyhtiö Finexim O. Ivanoff (Finexim) steel plates pursuant to five Sales Agreements including provisions on the reservation of the title to the goods. An arbitration clause providing for arbitration under the Court of Arbitration of the Czechoslovakian Chamber of Industry and Commerce, was included in the General Conditions of Export of the Sales Agreements. Finexim went bankrupt before the purchase price was paid and a dispute arose when Ferromet unsuccessfully requested the recession of the goods. On 27 February 1986, an award was rendered in Czechoslovakia in favor of Ferromet, who subsequently sought enforcement in Finland. Finexim’s bankruptcy estate opposed the action for enforcement on the grounds that the award was rendered against the bankrupt company instead of the bankruptcy estate and would therefore result in a different outcome than if the dispute had been decided in accordance with mandatory Finnish bankruptcy legislation, and enforcement would therefore be against Finnish public policy within the meaning of Article V(2)(b) NYC. The bankruptcy estate also argued that the tribunal had decided issues outside the scope of the arbitration agreement, which constituted a ground for non-enforcement under Article V(1)(c) NYC. Furthermore, Finexim’s bankruptcy estate argued that the enforcement of the award should be refused pursuant to Article V(2)(a) NYC because it would determine the issue of what is included in the bankruptcy estate, a question which is not arbitrable under Finnish bankruptcy law, which it argued constituted a further ground for non-enforcement under Article V(2)(b) NYC. Tampereen maistraatti (Tampere Register Office) decided that the award should be enforced, and rejected the objections that the dispute was governed by Finnish bankruptcy law and that the award decided issues outside the scope of the arbitration agreement. It further reasoned that the grounds for refusal of recognition and enforcement set forth in Articles V(2)(a) and V(2)(b) NYC did not exist in the present case, making the award enforceable. Finexim’s bankruptcy estate appealed at the Turun hovioikeus (Turku Court of Appeals), which affirmed the decision of Tampereen maistraatti, and then appealed the decision to the Korkein oikeus (Supreme Court). The Supreme Court of Finland affirmed the decision of Turun hovioikeus, reasoning that the enforceability of an arbitral award against a bankruptcy estate should be assessed pursuant to territorial jurisdiction under Finnish law. The Supreme Court reasoned that because the bankruptcy estate had sold the goods regardless of the arbitral claimant’s demand to separate the goods from the bankruptcy estate, the award concerned a debt of the bankruptcy estate and was therefore enforceable. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1561&opac_view=6 Attachment (1)
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Country Germany Court Germany, Hanseatisches Oberlandesgericht Date 26 January 1989 Case number 6 U 71/88 Applicable NYC Provisions V | V(2)(b) | V(1)(b) Source OLG Hamburg Languages English Summary The parties concluded a contract for the delivery of soybean flour providing for Grain and Feed Trade Association (GAFTA) arbitration in London. The United States placed an embargo on the merchandise. The Buyer accepted partial delivery of the goods, but refused to take delivery of the rest of the cargo. The Seller initiated arbitration proceedings. The arbitral tribunal denied the claim and granted the Buyer’s counterclaim. The award was confirmed by the GAFTA Board of Appeal. The Seller’s challenge before the High Court in London was dismissed while the Buyer’s request for leave to enforce before the Landgericht (Regional Court) Hamburg was granted. The Seller appealed. The Hanseatisches Oberlandesgericht (Higher Regional Court Hamburg) confirmed the decision of the Landgericht and dismissed the Buyer’s objections based on Articles V(2)(b) and V(1)(b) NYC. The Oberlandesgericht held that the award did not breach German public policy by obliging the Seller alone to bear the consequences of the U.S. embargo because the Seller had failed to demonstrate and prove that it was actually inhibited by the embargo from fulfilling its contractual obligations. It also held that by granting compound interest to the Buyer the award did not breach German public policy because the remedy was allowed by the law of the seat i.e. English law. It also dismissed the Seller’s allegation that the award was made in breach of its right to be heard because it had not been properly informed about the existence of the Buyer’s counterclaims during the arbitration. The Seller had various opportunities to bring these objections before the GAFTA Board of Appeal or before the London High Court but had failed to do so. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=920&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunale Federale (Federal Tribunal) Date 12 January 1989 Parties X S.A. v. Y Ltd. Case number 5P.249/1988 Applicable NYC Provisions II | II(1) | II(2) | V | V(1) | V(1)(b) | V(2) | V(2)(b) Source Original decision obtained from the registry of the Tribunale Federale
Languages English Summary X, a Swiss company, entered into a sales agreement with Y, a British company, which provided for arbitration in Great Britain. The contract was not signed by the parties but by a broker, acting as mediator. Following a dispute regarding the delivery of goods, Y initiated arbitration proceedings, which were later suspended when the parties agreed upon a new sale and by way of an addendum to the sales agreement. X failed to deliver the goods under the addendum and Y pursued arbitration, obtaining an award in its favor. Upon Y’s request, a payment order was issued in Switzerland, to which X raised an objection (opposizione). The objection was dismissed successively by both the Segretaria Assessore della Pretura di Lugano (Assessor Secretary of the First Instance Court of Lugano) and the Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal). X appealed the decision of the Tribunale d’Appello, arguing that pursuant to Article II(1) and II(2) NYC it was not bound by the arbitration clause because it had not been sent the sales agreement signed by the broker, and had never consented in writing to the arbitration clause contained therein. X also claimed that the award could not be relied upon since (i) X had been unable to present its case, constituting a breach of Article V(1)(b) NYC (ii) the arbitrator appointed by Y had been partial, and (iii) the award was contrary to Swiss public policy as the parties had not had any influence on the composition of the arbitral tribunal given that the arbitration rules required arbitrators to be members of a certain association. The Tribunale Federale Svizzero (Federal Tribunal) dismissed the appeal, thereby dismissing the objection to the payment order (rigetto definitivo). The Tribunale Federale held that the parties had confirmed their consent to the arbitration clause by stating in the addendum that the terms and conditions of the sales agreement were to remain in force. It also found that X had received written notifications of the arbitration and had therefore been fully able to present its case. After noting that issues regarding an arbitrators partiality were governed by Articles V(1)(b) and V(2)(b) NYC and Swiss law, it found that X had failed to produce any evidence in support of its claim. Finally, the Tribunale Federale ruled that the arbitration rules governed the appointment of arbitrators, and it was not contrary to Swiss public policy that the arbitrators were required to be members of a certain association. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1290&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. District Court, Eastern District of New York Date 27 October 1988 Parties Geotech Lizenz A.G. v. Evergreen Systems, Inc. Case number CV 88–1406 Applicable NYC Provisions V | IV | V(1)(a) | V(1)(b) | V(1)(c) | V(2)(b) Languages English Summary Geotech, a Swiss company, entered into a partnership agreement with Evergreen, an American company. The partnership agreement referred to a license agreement which contained an arbitration clause providing for arbitration under the rules of the Zurich Chamber of Commerce. A dispute arose and the parties allegedly entered into a settlement agreement (the “Settlement Agreement”). Subsequently, Geotech commenced arbitration and obtained a favorable award. Geotech applied for recognition and enforcement in the United States District Court for the Eastern District of New York. Evergreen resisted enforcement, arguing that: (i) the arbitration agreement was “invalid” pursuant to Article V(1)(a) NYC because it had been superseded by the Settlement Agreement; (ii) the arbitrator decided matters that were beyond the scope of the arbitration pursuant to Article V(1)(c) NYC; (iii) Evergreen was not given proper notice pursuant to Article V(1)(b) NYC; and (iv) enforcement of the award would be against public policy pursuant to Article V(2)(b) NYC in light of arguments (i), (ii) (iii) and (iv) above. The District Court granted Geotech’s petition for enforcement of the arbitral award. The Court found that the requirements of Article IV NYC had been fulfilled and that Geotech submitted certified copies of the award and the agreement. The Court found no basis under the NYC to refuse enforcement of the award. First, the Court rejected the contention that the Settlement Agreement superseded the license agreement and rendered the arbitration agreement invalid under Article V(1)(a) NYC, finding that the parties had in fact not settled their disputes. Second, the Court found that Evergreen had been given adequate notice of the arbitration proceedings as it had been informed of every stage of the arbitration process and was given an adequate opportunity to participate within the meaning of Article V(1)(b) NYC. Third, the Court rejected Evergreen’s public policy defense under Article V(2)(b) NYC, holding that such a defense would only be applicable if enforcement of the award violated “the most basic notions of morality and justice” of the forum where enforcement was sought. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1155&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 31 May 1988 Parties S.A. Walter Matter v. Sociedad Cafés Almela, S.A. Case number ATS 1722/1988 Applicable NYC Provisions V | V(2) | V(2)(b) 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=4652&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 31 May 1988 Parties S.A. Walter Matter v. Sociedad Cafés Almela, S.A. Case number ATS 513/1988 Applicable NYC Provisions V | V(2) | V(2)(b) 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=4651&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 14 April 1988 Case number III ZR 12/87 Applicable NYC Provisions V | I | V(2)(b) | V(1)(e) | V(1)(d) | V(1)(b) | I(1) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary The prevailing party in an International Chamber of Commerce (ICC) arbitration seated in Belgium sought enforcement of the award in Germany. The Landgericht (Regional Court) Stuttgart declared the award enforceable, but its decision was reversed by the Oberlandesgericht (Higher Regional Court) Stuttgart on appeal. The decision of the Oberlandesgericht was appealed before the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof reversed the Oberlandesgericht’s decision and reinstated the decision of the Landgericht, which had declared the award enforceable. It found that the NYC was applicable since the award had been rendered within the territory of another contracting state as per Article I(1) NYC. The Bundesgerichtshof held that the formal prerequisites set forth by Article IV NYC had been met and there were no grounds to refuse enforcement of the award under Article V NYC. First, it held that the award had become binding within the meaning of Article V(1)(e) NYC since it was not subject to appeal before a higher arbitral tribunal or a state court . Second, although the tribunal had exceeded the time limit for rendering its award under the ICC Rules, according to the Bundesgerichtshof, this would not constitute grounds for non-enforcement under Article V(1)(d) NYC. In this respect, it noted that under the ICC Rules an arbitral tribunal does not become functus officio unless it is substituted by a different tribunal, even if it fails to render its award within the prescribed time limit; thus, the extension of the time limit for rendering the award had nothing to do with the “composition of the arbitral authority.” Third, it ruled that not giving a party the opportunity to comment on the extension of the time limit for the issuance of the award did not constitute a ground for refusing enforcement under Article V(1)(b) NYC, recalling that this provision merely required that the parties be informed of the constitution of the arbitral tribunal and the existence of arbitral proceedings. The Bundesgerichtshof also dismissed the argument that the enforcement of the award would violate German public policy pursuant to Article V(2)(b) NYC, since the unsuccessful party had failed to make use of the possibility to comment on the extension of the time limit, thus the ICC Court’s failure to explicitly ask for the parties’ comments regarding the extension of the time limit for rendering of the arbitral award did not constitute a violation of German public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=921&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 24 September 1987 Parties Marítima de Axpe v. U.T.B. Case number ATS 719/1987 Applicable NYC Provisions V | V(1) | V(1)(d) | V(1)(e) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4648&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 24 September 1987 Parties Union Thoniere Bretonne v. Maritima de Axpe S.A. Case number ATS 1120/1987 Applicable NYC Provisions V | V(1) | V(1)(d) | V(1)(e) | 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=3975&opac_view=6 Attachment (1)
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Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 09 September 1987 Parties E****, Export-Import, Kosova v. A****- A****, Export-Import Case number 3Ob80/87 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(d) | V(1)(e) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3899&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. Court of Appeals, Ninth Circuit Date 08 July 1987 Parties Mgmt. & Tech. Consultants S.A. v. Parsons-Jurden Int'l Corp. Case number 85-5930, 85-6587 Applicable NYC Provisions V | V(1)(c) Source 820 F.2d 1531 Languages English Summary The Plaintiff and the Defendant entered into a contract. A dispute arose as to the wording of the agreement and the Plaintiff initiated arbitration proceedings against the Defendant under the arbitration clause contained in the agreement. Subsequently, the Plaintiff petitioned for enforcement of the foreign arbitral award that resulted from the proceedings. The United States District Court for the Central District of California granted the petition, and the Defendant appealed. The United States Court of Appeals for the Ninth Circuit affirmed the lower court decision granting the petition to enforce the award. In so ruling, the Court held that because the arbitration clause conferred authority on the arbitrators to determine, not only whether the requisite amount of gross billings had occurred, but also to determine amount of additional compensation due under Section 201 of the Federal Arbitration Act, the Arbitral Tribunal did not exceed its authority in making the award under Article V(1)(c) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=815&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 29 June 1987 Parties Spier (United States) v. Calzaturificio Tecnica S.p.A. (Italy) (“Spier I”) Case number 86 Civ. 3447 (CSH) Applicable NYC Provisions V | VI | V(1)(e) Source 663 F. Supp. 871 Languages English Summary A United States citizen, Martin Spier, petitioned for enforcement of an arbitration award rendered in Italy after a dispute had arisen in connection with a contract to furnish expertise about plastic footwear and ski boots with an Italian company, Calzaturificio Tecnica. The contract contained a provision providing for the resolution of disputes by a panel of three arbitrators in Italy, which later rendered an award in favor of Spier. Tecnica did not comply with the award and instead commenced litigation in an Italian court to challenge the validity of the award. Spier did not appear in the Italian action, and instead filed a petition in the United States District Court for the Southern District of New York for enforcement of the arbitration award. The District Court granted adjournment. It held that enforcement proceedings under Article VI NYC should be deferred pending a determination of the validity of the award under Italian law by the Italian courts. As Article V(1)(e) NYC provides that a foreign award will not be enforced if the award “has been set aside or suspended by a competent authority of the country in which [...] that award was made”. Tecnica had indeed sought to set aside the award in Italy, therefore the District Court held that it should defer proceedings until the Italian courts ruled on the issue. see also :
- VI / 2. ANALYSIS (VI) / c. Whether the party must request an adjournment and/or an order for security / §16
- VI / 2. ANALYSIS (VI) / d. The discretionary power of the courts to adjourn the decision on enforcement or order security / §22
- VI / 2. ANALYSIS (VI) / c. Whether there are any prevailing factors to be considered by courts / §42
- VI / 2. ANALYSIS (VI) / c. Whether there are any prevailing factors to be considered by courts / §38
- VI / 2. ANALYSIS (VI) / a. The absence of a standard / §27
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=779&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 15 June 1987 Parties Case number II ZR 124/86 Applicable NYC Provisions V | II | V(2)(b) | II(1) Source BGH Summary An investment contract between a German individual and a New York corporation, governed by New York law and containing an arbitration clause, contravened certain mandatory provisions of German exchange laws. In court proceedings in Germany, the New York corporation invoked the arbitration clause. The Bundesgerichtshof (Federal Supreme Court) held that the case was non-arbitrable under German law. The combination of arbitration proceedings abroad and applicable law other than German law would leave the German mandatory exchange laws without effect, with regard to both the protection against claims filed against the persons protected by these laws and the possibility for the protected persons to obtain reimbursement of any sum paid. In the Court's opinion, Article V(2)(b) NYC would have been applicable to the facts of the case since the contract contravened German mandatory rules that are part of German "ordre public". If the arbitration agreement were to be recognised and its validity only verified at the stage of the recognition proceedings, the German individual would be referred to arbitration before an American arbitral tribunal that would not apply the German mandatory rules, with the result that the German individual would be incapable of recovering the sums unduly paid to the New York corporation. For these reasons, the Court denied recognition of the arbitration agreement for the "subject matter" not being "capable of settlement by arbitration" pursuant to Article II(1) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=222&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 24 March 1987 Parties Deutsche Schachtbau-und Tiefbohr-Gesellschaft M.B.H. v. Ras Al Khaimah National Oil Co. Applicable NYC Provisions V | V(1) | V(1)(c) Source [1987] 3 WLR 1023 | online: ICLR
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1474&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 17 February 1987 Parties Compagnie de Construction Mécanique Sulzer (CCM Sulzer) v. Société Maghrébienne de Génie Civil (SOMAGEC), Société des Anciens Etablissements Riad Sahyoun (SAERS) and M. Riad Riaksallah Sahyoun Case number 86.4787 Applicable NYC Provisions V | V(1) | V(1)(e) | VI Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary On 10 October 1978, two Moroccan companies (SOMAGEC and SAERS) entered into an agreement with a French company (SULZER) containing an International Chamber of Commerce (ICC) arbitration agreement. A dispute arose and an award was rendered in Geneva on 20 December 1985 in favor of SOMAGEC and SAERS. In an order issued on 16 January 1986, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. SULZER initiated an action to set aside the award before the Cour de Justice du Canton de Genève (Geneva Court of Justice), which was dismissed. This decision was then appealed by SULZER. In the meantime, SULZER also appealed the enforcement order issued by the Tribunal de Grande Instance de Paris on the grounds that (i) the arbitral tribunal had ruled without an arbitration agreement or on the basis of an arbitration agreement which was void and had expired (Article 1502 1° of the Code of Civil Procedure), (ii) due process was violated, and (iii) the award was contrary to international public policy. The Cour d'appel de Paris (Paris Court of Appeal) reasoned that, pursuant to Article V(1)(e) NYC, it is for the party opposing the enforcement to demonstrate that the award has not yet become binding on the parties. It added that, in accordance with the provisions of Article VI NYC, if an application for the setting aside or the suspension of the award has been made to a competent authority of the country in which that award was made, the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award. It then decided to adjourn the proceeding until the Swiss Courts had rendered a final decision as to the setting aside of the award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=124&opac_view=6 Attachment (1)
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Country India Court India, Supreme Court Date 16 January 1987 Parties Oil & Natural Gas Commission (ONGC) v. Western Company of North America Applicable NYC Provisions V | V(1) | V(1)(e) Source 1987 AIR 674; 1987 SCR (1) 1024; 1987 SCC (1) 496; JT 1987 (1) 160; 1987 SCALE (1) 67 | http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary The Indian Oil and Natural Gas Commission (“ONGC”) entered into a drilling agreement with Western Company of North America (a U.S. company) and agreed to arbitrate any disputes in London in accordance with the provisions of India’s domestic arbitration statute. A subsequent dispute led to an October 1985 award in favor of Western, which then filed suit in a U.S. district court to confirm the award and obtain a judgment against ONGC. ONGC, in turn, petitioned the High Court of Bombay to set aside the award and issue an order enjoining Western from proceeding with its suit in the U.S. court. The High Court held that Western was entitled to bring suit in the U.S. court to enforce the award as a foreign award, that the pending application in the High Court to set aside the award did not affect this right, and that, therefore, an injunction was inappropriate. ONGC then appealed to the Supreme Court of India. The Supreme Court reversed the judgment of the High Court, holding that under India's domestic arbitration law the award did not bind the parties until it was confirmed by an Indian court and that, therefore, under Article (V)(1)(e) NYC the award was unenforceable in the U.S. as it did not yet bind the parties. Consequently, an injunction was appropriate in this case. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=812&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 07 October 1986 Parties T.H. Van Huystee B.V. v. Mr. Benedicto Case number ATS 624/1986 Applicable NYC Provisions IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4646&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 07 October 1986 Parties T.H. Van Huystee B.V. v. Mr. Jose Enrique Case number STS 5279/1986 Applicable NYC Provisions IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4645&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 15 May 1986 Case number BGH III ZR 192/84 Applicable NYC Provisions V | V(2)(b) Source BGH Summary The Parties entered into a charterparty containing a clause providing for arbitration in London. Under the clause, each Party was to appoint one arbitrator. In the event that the arbitrators failed to reach an agreement on the decision, they would have to select an umpire to decide the dispute. The Claimant submitted a claim to arbitration and advised the Defendant that it had nominated an arbitrator, requesting that the Defendant appoint an arbitrator in 7 days or that otherwise its arbitrator would act as a sole arbitrator. The Defendant did not nominate an arbitrator and the sole arbitrator rendered an award in favor of the Claimant. Recognition was denied by the Landgericht (Lower Regional Court) Hamburg. The Hanseatisches Oberlandesgericht (Higher Regional Court Hamburg) reversed the decision and granted enforcement. The Defendant appealed. The Bundesgerichtshof (Federal Supreme Court) upheld the decision of the Hanseatisches Oberlandesgericht and granted enforcement. It concluded that the duty of impartial administration of justice is part of German public policy within the meaning of Article V(2)(b) NYC. "Ordre public international" is only considered infringed if the foreign tribunal has rendered an award on the basis of a proceeding deviating from fundamental principles of German procedural law to such an extent that the award cannot be considered rendered in an orderly procedure in accordance with the rule of law. In the interest of international trade, narrow limits must be drawn for the concept of German public policy in the context of recognition and enforcement. The recognition of an arbitral award can generally only be denied in those cases where the violation of the duty of impartial administration of justice had a real impact on the arbitral proceedings. The Court reasoned that the Defendant would have had to show that the arbitrator was unfit to act because he was partial towards one party, and that it had not met this burden. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=220&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. District Court, District of Delaware Date 08 May 1986 Parties Al Haddad Bros. Enterprises Inc., (U.S.) v. M/S AGAPI and Diakan Love, S.A. Case number 8292 CMW Applicable NYC Provisions V | IV | V(1)(d) | IV(1)(b) Source 635 F. Supp. 205
Languages English Summary Al Haddad Brothers Enterprises (“Al Haddad”) and Diakan Love, S.A. (“Diakan”) entered into a charter party providing for arbitration in London. Al Haddad filed suit in the United States District Court for the District of Delaware, and Diakan moved to stay the proceedings pending arbitration. The District Court granted the motion, and Diakan later initiated arbitration in London. In 1983, a sole arbitrator rendered an award in favor of Diakan. Subsequently Al Haddad filed a motion before the District Court to vacate the stay order, arguing that it never agreed to arbitration. The Court denied the motion. Diakan then sought a summary judgment on a counterclaim based on the arbitration award before the same court. Al Haddad argued that the award had been improperly procured because: (i) it was determined by a sole arbitrator, appointed by one of the parties, and therefore the enforcement should be refused pursuant to Article V(1)(d) NYC, and (ii) that Diakan had failed to comply with the formal requirements under Article IV(1)(b) NYC. The Court enforced the award under the NYC. In dismissing the first argument, the Court noted that the NYC allows recognition of an award which, although not in accordance with the parties' agreement, complied with the laws of the country where the arbitration occurred. In dismissing the second argument, the Court held that the purpose of Article IV(1)(b) NYC is to prove the existence of the agreement to arbitrate. Although Diakan had not produced the agreement before the Court during the proceedings, the Court held that it did produce it on several prior instances, thereby complying with the requirements of Article IV(1)(b) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=846&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. Supreme Court Date 02 July 1985 Parties Mitsubishi Motors Corp v. Soler Chrysler-Plymouth Case number 3-1569 Applicable NYC Provisions V | V(2)(b) Source 473 U.S. 614 Languages English Summary A dispute arose between Mitsubishi, a Japanese corporation, and Soler Chrysler, a Puerto Rican company, concerning a distribution contract. Mitsubishi brought suit in a United States federal district court to compel arbitration in Japan, relying on the distribution contract. Soler Chrysler resisted arbitration on the grounds that (i) its counterclaims were based on a Sherman Antitrust Act violation, and (ii) the claims could not be disposed of in arbitration. The District Court ruled that the antitrust claims were arbitrable, and the Circuit Court reversed. The United States Supreme Court affirmed the District Court’s decision and compelled arbitration. The question presented to the Supreme Court was whether claims arising out of the Sherman Antitrust Act were arbitrable pursuant to the Federal Arbitration Act (“FAA) or the NYC. The Court found that they were. In doing so, the Court reasoned that “concerns for international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes” required that the Court compel arbitration. The Court further based its decision on the fact that the Arbitral Tribunal was competent to hear, and had agreed to consider, the antitrust claims. Finally, the Court held that national courts of the United States would have the opportunity at the enforcement stage, pursuant to Article V(2)(b) NYC, to ensure that the legitimate interest in the antitrust issues had been addressed. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=513&opac_view=6 Attachment (1)
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