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Spain / 06 November 2000 / Spain, Audiencia Provincial de Barcelona (Provincial Court of Barcelona) / SECOPAL, S.A. v. Mr. Lorenzo / SAP B 13153/2000
Country Spain Court Spain, Audiencia Provincial de Barcelona (Provincial Court of Barcelona) Date 06 November 2000 Parties SECOPAL, S.A. v. Mr. Lorenzo Case number SAP B 13153/2000 Applicable NYC Provisions II | II(1) | II(2) | V | V(1) | V(1)(a) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4664&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 17 October 2000 Parties Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar (ASECNA) v. M. Issakha N'Doye Case number 98-11.776 Applicable NYC Provisions V | V(1) | V(1)(e) | VII | VII(1) Source Bulletin 2000 I N° 243 p. 160, Original decision obtained from the registry of the Cour de cassation
Summary An award was rendered in Dakar in a dispute between the ASECNA (Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar) and an individual regarding his dismissal. In an order issued on 8 July 1996, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. ASECNA challenged the decision of the Cour d'appel de Paris (Paris Court of Appeal) of 16 October 1997 which had upheld the enforcement order on the grounds that the award in dispute was a domestic award (as opposed to an international award) and that, therefore, the suspensive effect of the action to set aside the award initiated in Senegal precluded the enforcement of the award abroad in accordance with Article V(1)(e) NYC. The Cour de cassation (Supreme Court) affirmed the decision of the Cour d'appel de Paris. It reasoned that Articles 1498 et seq. of the Code of Civil Procedure on the recognition and enforcement of awards apply both to international awards and awards rendered abroad, irrespective of whether these awards are considered, in the country where they were rendered, as domestic or international awards. The Cour de Cassation then held that pursuant to the NYC (to which the French-Senegal Convention refers) and Article VII NYC, French international arbitration rules, which are more favorable to the enforcement of arbitral awards, must apply. Given that Article 1502 of the Code of Civil Procedure does not list as a ground for refusing enforcement the existence of an action which has a suspensive effect on the enforceability of the award, the Cour de cassation dismissed the individual's claim. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=159&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel d'Orléans (Court of Appeal of Orléans) Date 05 October 2000 Parties Société Recam Sonofadex v. Société Cantieri Rizzardi de Gianfranco Rizzardi Case number 99/02678 Applicable NYC Provisions III | V | V(1) | V(1)(e) | VI Source Original decision obtained from the registry of the Cour d’appel d'Orléans
Summary An award was rendered in Italy on 22 February 1999 in favor of an Italian Company (Rizzardi). In an order issued on 28 June 1999, the President of the Tribunal de Grande Instance de Blois (First Instance Court of Blois) allowed enforcement of the award in France. Appealing this decision, the losing party (Recam) argued, inter alia, that (i) enforcement should be rejected pursuant to the Brussels Convention of 27 September 1968, which applies to the enforcement of foreign arbitral awards, (ii) the President of the Tribunal de Grande Instance lacked jurisdiction to grant the enforcement of the award by means of an ex parte order, (iii) enforcement should not be granted pending the action initiated before the Rome Court of Appeal which has a suspensive effect under Italian law, and that (iv) due process had been violated and the enforcement would be contrary to public international policy. The Cour d'appel d'Orléans (Orléans Court of Appeal) confirmed the enforcement order and dismissed the appeal. It first held that the Brussels Convention of 1968 does not apply to the enforcement of foreign arbitral awards and that, given that France and Italy are parties to the NYC, the reciprocity reservation made by France was satisfied. It then reasoned that, pursuant to article III NYC, French procedural rules are applicable as to the enforcement of an award in France and that the enforcement order complied with the provisions of Article 1478 of the Code of Civil Procedure. As to the effect of the pending proceedings before the Rome Court of Appeal, the Cour d'appel d'Orléans ruled that, in accordance with articles V(1)(e) and VI NYC, enforcement may be refused only when the award has been suspended in the country where it was rendered. If a request for suspension of the award has been made but not granted, the court in charge of the enforcement in France has the possibility to adjourn the decision, should it be deemed necessary. It then noted that even though Recam had initiated proceedings which have a suspensive effect, a suspension of the award had not been granted since the Rome Court of appeal had rejected the recourse for suspension of the decision of the Tribunal of Latina allowing enforcement of the award in Italy. Lastly, it found that due process has not been violated and that enforcement was not contrary to international public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=158&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunale Federale (Federal Tribunal) Date 29 August 2000 Parties B. SA v. S. Case number 5P.246/2000 Applicable NYC Provisions V | V(1) | V(1)(e) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4589&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 31 July 2000 Parties E. Schubert & Sohn GmbH & Co. v. Golden Foods S.A. Case number ATS 2485/2000 Applicable NYC Provisions I | II | II(1) | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | V(1) | V(1)(b) | V(1)(c) | 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=4052&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 31 July 2000 Parties Ionian Shipping Line Co. Ltd v. Transhipping S.A. Case number ATS 827/2000 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) | V(2) | V(2)(a) 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=4053&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 04 July 2000 Parties Cardinal Shipping Co. Ltd v. Iberica de Proteínas S.A. Case number ATS 710/2000 Applicable NYC Provisions I | III | IV | V | V(1) | 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=4054&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 20 June 2000 Parties Danske Mejeriers Faellesorganisation v. Agraria del Tormes S.A., D. Jose Daniel, D. Gregorio and D. Juan Pablo Case number ATS 2432/2000 Applicable NYC Provisions I | 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=4055&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 18 April 2000 Parties Agroindustrias Unidas de México, Sociedad Anónima de Capital Variable v. Medicafé S.A. Case number ATS 1418/2000 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) | V(2) | V(2)(a) 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=4062&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 11 April 2000 Parties Unión Générale de Cinema S.A. v. X Y Z Desarrollos S.A. Case number ATS 859/2000 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) | V(1)(b) | 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=4065&opac_view=6 Attachment (1)
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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)
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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)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 21 March 2000 Case number 5P.371/1999 Applicable NYC Provisions V | V(1) | V(1)(e) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary An arbitration tribunal in London ordered B to pay S; relying on that award, S applied to the High Court in London for B to be wound up. The High Court so ordered but its decision was reversed on appeal because there was a counterclaim from B against S which remained undecided. S sought to enforce the award in Switzerland; the decision of the Tribunal of First Instance to enforce the award was reversed on appeal on the basis of the Court of Appeal’s decision in London. S appealed. The Swiss Federal Tribunal allowed the appeal. Considering Article V(1)(e) NYC, the Tribunal stated that ‘recognition and enforcement must be refused if the award has been suspended’ in the country of origin. It noted that the decision of the Court of Appeal in London did not amount to a suspension of the award’s enforcement and that the Court of Appeal did not cast doubt on the award’s validity. Article V(1)(e) NYC was therefore inapplicable (2.b) Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=565&opac_view=6 Attachment (2)
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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)
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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 Colombia Court Colombia, Corte Suprema de Justicia (Supreme Court of Justice) Date 01 March 1999 Parties Merck & Co Inc. (US), Merck Frosst Canada Inc. & Frosst Laboratories Inc. (Colombia) v Tecnoquimicas S.A. (Colombia) Case number E-7474 Applicable NYC Provisions I | III | V | V(1) | V(1)(d) Source http://www.cortesuprema.gov.co (website of the Corte Suprema de Justicia)
Summary The parties entered into an agreement containing an arbitration clause providing for arbitration under the auspices of the International Chamber of Commerce (ICC) in Newak. Following a dispute, Merck & Co Inc., Merck Frosst Canada Inc. and Frosst Laboratories Inc. initiated an ICC arbitration proceeding on 3 February 1997. On 29 July 1998, a sole arbitrator rendered an award whereby he affirmed his jurisdiction and ordered the Respondent to refrain from pursuing the arbitral proceeding before the Chamber of Commerce of Bogota. The ICC Secretariat issued an order whereby it affirmed that the award was final. On 26 January 1999, the Suprema Corte de Justicia (Supreme Court) denied enforcement of the award because it was not considered an "award" within the meaning of the NYC. Merck filed a recourse ('recurso de suplica') before the Suprema Corte de Justicia (Supreme Court). The Companies Merck and Frosst filed a recourse against the order of 26 January 1999 rejecting the request for enforcement of the ICC interim award rendered on 29 June 1998. The Corte Suprema de Justicia held that no enforcement should be granted to the award and confirmed the decision of 26 January 1999. The Suprema Corte de Justicia noted that the 26 January 1999 decision did not refer to the ICC Rules with respect to the enforcement proceedings. It considered that the two are different: the enforcement proceeding has to comply with the rules of the State where enforcement is sought, in accordance with the NYC. The Corte Suprema de Justicia analyzed Article I(1) NYC as applying to awards which finally or partially settle disputes between legal or natural persons. However the Corte Suprema de Justicia held that in the present case, the award affirmed the jurisdiction of the arbitral tribunal and ordered Tecnoquimicas to refrain from continuing the arbitral proceedings it had initiated before the Chamber of Commerce of Bogota without settling the dispute on the merits. The Corte Suprema de Justicia considered that, under the NYC, "arbitral awards" substantially put an end to the arbitral proceeding and settle the dispute. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=86&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, Court of Final Appeal, Hong Kong Special Administrative Region Date 09 February 1999 Parties Hebei Import & Export Corporation v. Polytek Engineering Company Limited Case number FACV 10/1998 Applicable NYC Provisions V | V(1) | V(1)(e) | V(2) | V(2)(b) Source [1999] 1 HKLRD 665; [1999] 2 HKCFAR 111 | http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary On March 29, 1996, an arbitral tribunal within the China International Economic and Trade Arbitration Commission rendered an award in favor of plaintiff-appellant, Hebei Import & Export Corporation (“Hebei”) and against defendant-appellee, Polytek Engineering Company (“Polytek”). Hebei obtained an order to enforce the award in Hong Kong on July 23, 1996. The Court of Appeal allowed Polytek’s appeal (based on Section 44 of the Arbitration Ordinance, which implements Article V NYC) to set aside the enforcement order on the grounds that (1) the Tribunal exhibited apparent bias; (2) this bias constituted a fundamental flaw in the arbitral procedure; and (3) it would be contrary to Hong Kong’s public policy to enforce an award that was the product of such a flawed proceeding. Hebei appealed. The Court of Final Appeal reversed the lower court's decision, finding that Polytek could have raised the issue of potential bias before the Tribunal but chose not to do so. As such, Polytek was estopped from now claiming that the Tribunal’s apparent bias violated Hong Kong public policy. The Court noted that refusing to enforce a Convention award requires a high burden of proof, unmet by Polytek in this case. reverses : see also :
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §55
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / c. Relationship with article V(1) / §45
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. International – transnational public policy / §14
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. The public policy exception under the Convention / §6
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §59
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §57
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. The public policy exception under the Convention / §5
- Hong Kong / 15 May 1997 / Hong Kong, High Court, In the Supreme Court of Hong Kong / Hebei Import & Export Corporation v. Polytek Engineering Company Limited / HCMP 2083/1996
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=494&opac_view=6 Attachment (1)
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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)
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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)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 02 April 1998 Parties Compagnie française d'études et de construction Technip (Technip) v. Entreprise nationale des engrais et des produits phytosanitaires (Asmidal) Case number 97/6929 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(2) | V(2)(b) | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary An ICC award was rendered in Zurich on 8 July 1996 in favor of an Algerian Company (ASMIDAL). In an order issued on 6 January 1997, the President of the Tribunal de Grande Instance de Paris allowed enforcement of the award in France. Appealing this decision, the losing party (Technip) argued that the enforcement order should be overturned pursuant to Article 1502 of the Code of Civil procedure given that (i) the arbitral tribunal had wrongly upheld jurisdiction, (ii) the arbitral tribunal had not properly been constituted, (iii) the arbitral tribunal had not complied with the mandate conferred upon it, (iv) due process had been violated, and (v) recognition and enforcement was contrary to international public policy. In response, ASMIDAL claimed that only the provisions of the NYC should be applied. The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order and dismissed the action. It first reasoned that the procedure pertaining to the enforcement of the award in France is subject to the conditions set forth by both the NYC, ratified by France and Switzerland, and French rules on enforcement of awards. It added that the control of the regularity of an award by French Courts in order to allow its integration in French legal order may be based on either the NYC or French law (notably, Articles 1498 and 1502 of the Code of Civil Procedure); while noting that pursuant to Article VII NYC, the provisions of French law which are more favorable to the enforcement of the award must prevail. It then dismissed each claim for refusing enforcement of the award, after noting that the provisions of French law invoked (Article 1502 of the Code of Civil Procedure) are similar to that of the NYC. In this respect, the Cour d'appel de Paris held that (i) Article V(1)(a) NYC and Article 1502 1° (on whether the arbitral tribunal ruled without an arbitration agreement or on the basis of an arbitration agreement which was null and void) address similar situations, (ii) Article V(1)(b) NYC and Article 1502 4° (violation of due process) have the same scope, except that the latter refers to the principles of French law in an international context, (iii) Article V(1)(c) NYC and Article 1502 3° (as to the obligation of the arbitral tribunal to comply with the mandate conferred upon it) have the same scope, and (iv) Article 1502 includes the same provisions as Article V(1)(d) NYC (regarding the constitution of the arbitral tribunal). Lastly, it ruled that Article 1502 5° (as to the violation of international public policy) is in "perfect harmony" with Article V(2)(b) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=153&opac_view=6 Attachment (1)
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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 Hong Kong Court Hong Kong, Court of Appeal, In the High Court of the Hong Kong Special Administrative Region Date 16 January 1998 Parties Hebei Import & Export Corporation v. Polytek Engineering Company Limited Case number CACV 116/1997 Applicable NYC Provisions I | I(1) | V | V(1) | V(2) | VI Source [1998] 1 HKLRD 287 | http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary In April 1993, Hebei (a Hong Kong Company) entered into a contract with Polytek (a People’s Republic of China [“PRC”] company) and agreed to arbitrate any disputes in the PRC under CIETAC rules. A subsequent dispute led to a March 1996 arbitral award in favor of Hebei. Hebei obtained leave to enforce the award in Hong Kong in July 1996. Polytek’s application to set aside that order was dismissed on May 15, 1997. Polytek then appealed to the Hong Kong Court of Appeal on the grounds that (1) it was deprived of the ability to present its case, in violation of Section 44(2)(c) of Hong Kong's Arbitration Ordinance, Cap. 341 (which directly incorporated Article V(1)(b) NYC), because it was not given notice of an inspection of Hebei’s factory; (2) enforcing the award would be contrary to public policy, in violation of Section 43 of the Ordinance (similarly incorporating Article V(2)(b)NYC), because Hebei’s ex parte communications with the Chief Arbitrator in connection with the factory inspection tainted the award; and (3) the award should not be enforced without regard to Hebei’s corresponding obligation to return the equipment in an acceptable condition. The Court of Appeal held that Polytek was deprived of an opportunity to present its case and that Hebei’s contacts with the Chief Arbitrator, outside of the presence of Polytek and the other arbitrators, made it contrary to public policy to enforce the award. The Court, however, rejected Polytek's claim that Hebei had a corresponding duty to return the equipment before the award could be enforced, because the contract did not specify such an obligation and because even if it had this obligation, it was severable from the valid aspects of the award, and therefore enforceable by the terms of Section 44(4) of the Ordinance (which incorporated Article V(1)(c) NYC). reversed by : reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=695&opac_view=6 Attachment (1)
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Country India Court India, Supreme Court Date 14 January 1998 Parties Transocean Shipping Agency P Ltd v. Black Sea Shipping & another Applicable NYC Provisions V | V(1) | V(1)(d) Source http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary Transocean Shipping Agency (“Transocean”) entered into a contract with the Black Sea Shipping (“Black Sea”; a company incorporated in Ukraine) under which Transocean would operate as Black Sea’s Shipping agent. The contract provided for arbitration “where [Black Sea] are registered”. A dispute arose and Black Sea referred the matter to arbitration in Odessa, Ukraine. The second respondent, who was an official of Black Sea and appointed as arbitrator by an order of the government of Ukraine, made an award in favour of Black Sea. Black Sea sought to enforce the award in India, a motion which Transocean resisted on three grounds: (i) that the award made in Ukraine was not a foreign award as defined in Section 2 of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) (implementing Articles I and II NYC), because Ukraine had not been notified to be a party to the NYC after the dissolution of the Union of Soviet Socialist Republics (“USSR”); (ii) that the arbitration had not been conducted in accordance with the law of Ukraine as envisaged by Section 7(1)(a)(iv) of the 1961 Act (mirroring Article V(1)(d) NYC); and, finally, (iii) that enforcement of the award would be contrary to public policy, as envisaged by Section 7(1)(b)(ii) of the 1961 Act (mirroring Article V(2)(b) NYC), because the arbitrator was an official of Black Sea. The High Court rejected the arguments advanced by Transocean and ordered the enforcement of the award. Transocean appealed the High Court’s decision to the Supreme Court. The Supreme Court dismissed the appeal, ordering the enforcement of the award and rejecting Transcocean’s arguments. The Supreme Court held that the award was a “foreign award” for purposes of Section 2 of the 1961 Act, holding further that the 1961 Act was enacted in order to give effect to the NYC. In the view of the Supreme Court, it was not necessary that the Indian authorities send a notification to the effect that the states emerging from the dissolution of the USSR continued to be parties to the NYC, therefore satisfying the requirement of reciprocity. With respect to Transocean’s argument that the arbitration was invalid according to the law of Ukraine, the Supreme Court noted that Transocean had not presented any evidence as to why this was the case. According to the Supreme Court, Transocean bore the burden of proving why the award should not be enforced; a burden which it had been unable to satisfy. In making this point, the Supreme Court remarked that Section 7 of the 1961 Act “is in conformity with” Article V NYC. Finally, the Supreme Court rejected the contention that the enforcement would be contrary to public policy due to the arbitrator being an official of Black Sea, stressing that the award rendered was valid under the law of Ukraine and, consequently, there was no violation of public policy in enforcing the award in India. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1400&opac_view=6 Attachment (1)
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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)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 16 October 1997 Parties Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar (ASECNA) v. M. Issakha N'Doye Case number 96/84842 Applicable NYC Provisions V | V(1) | V(1)(e) | V(2) | V(2)(a) | V(2)(b) | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary An individual was hired on 16 September 1985 by the ASECNA (Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar). Following his dismissal, the individual commenced arbitration pursuant to the arbitration agreement contained in his employment contract. An award was rendered in August 1994 in Senegal in his favor. In an order issued on 8 July 1996, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. Appealing this decision, ASECNA argued that (i) the dispute was not capable of settlement by arbitration and that the enforcement order would be contrary to the French conception of international public policy, (ii) the award was not final since there was a pending action before the Dakar Court of Appeal and thus the recognition and enforcement of the award should be refused in accordance with Article 5(1)(e) NYC, and (iii) it benefited from immunity of jurisdiction and execution. The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order and dismissed the action. It first noted that the France-Senegal Convention on Judicial Cooperation of 29 March 1974, provided that the recognition and enforcement of awards rendered in these countries shall be granted in accordance with the provisions of the NYC. It then reasoned that Article V(2)(b) refers to the conception of international public policy of the country where enforcement in sought and not to internal public policy of that country. On this basis, it found that, even though employment dispute fall under the exclusive jurisdiction of the Conseils de Prud'hommes (Employment Tribunal) under French law, the fact that this dispute was settled by arbitration was not contrary to the fundamental principles of the French conception of international public policy. As to the fact that the award was not final, the Cour d'appel de Paris reasoned that since the France-Senegal Convention on Judicial Cooperation refers to the NYC, the Contracting Parties had implicitly consented to the exception under Article VII NYC which provides that the provisions of the NYC may not deprive a party of any right it may have to avail itself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. It then held that French Court may only refuse enforcement in the limited number of situations listed at Article 1502 of the Code of Civil Procedure, which does not include the situation set forth at Article V(1)(e) NYC, and that given that the award rendered in Senegal is an international award which is not anchored in the legal order of that country, its existence is not affected by the outcome of the appeal initiated before local courts and therefore its recognition and enforcement in France was not contrary to international public policy. Lastly, the Cour d'appel de Paris ruled that ASECNA had waived its immunity of jurisdiction by consenting to arbitration and that, given that the enforcement procedure of an award does not constitute an enforcement measure, the recognition and enforcement of the award does not affect ASECNA's immunity of execution. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=149&opac_view=6 Attachment (1)
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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)
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Country United Kingdom Court England and Wales, Court of Appeal Date 22 January 1997 Parties Soinco SACI v. Novokuznetsk Aluminium Plant Case number OBCMI 97/0769/ Applicable NYC Provisions V | V(1) Source [1998] 2 WLR 334; [1998] QB 406 (CA) | online: ICLR
Languages English Summary Summary in preparation Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1177&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 14 January 1997 Parties République arabe d'Egypte v. Société Chromalloy Aero Services Case number 95/23025 Applicable NYC Provisions V | V(1) | V(1)(e) | VI | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary On 16 June 1988, the Arab Republic of Egypt and a US company (Chromalloy) entered into a contract for the supply of material, services and technical assistance for the management and maintenance of military aircraft. Following the termination of this agreement by the Arab Republic of Egypt, Chromalloy initiated arbitration proceedings as provided by the parties in the contract. An award was rendered on 24 August 1994, in Cairo in favor of Chromalloy. In an order issued on 4 May 1995, the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France, whereas the enforcement of the award had been stayed and eventually set aside by the Cairo Court of Appeal. The Arab Republic of Egypt filed an appeal against the enforcement order. It contended that (i) the enforcement order violated the provisions of both the France-Egypt Convention on Judicial Cooperation of 15 March 1982 and the NYC, (ii) the arbitral tribunal did not comply with the mandate conferred upon it (Article 1502 3° of the Code of Civil Procedure), violated due process (Article 1502 4°) and that the recognition and enforcement of the award was contrary to international public policy (Article 1502 5°). The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order and dismissed the appeal. It first noted that the France-Egypt Convention on Judicial Cooperation provides that the recognition and enforcement of awards rendered in these countries shall be granted in accordance with the provisions of the NYC. In light of this general reference to the NYC, it reasoned that the Contracting States have implicitly consented to the exception under Article VII NYC which provides that the provisions of the NYC may not deprive a party of any right it may have to avail itself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. It then held that French Courts may only refuse enforcement in the limited number of situations listed at Article 1502 of the Code of Civil Procedure, which does not include the situation set forth in Article V NYC invoked by the Arab Republic of Egypt, and that given that the award rendered in Egypt was an international award which, by definition, is not anchored in the legal order of that State, its existence was not affected by its setting aside and therefore the recognition and enforcement of this award in France was not contrary to international public policy. The Cour d'appel de Paris then dismissed the other claims based on Article 1502 of the Code of Civil Procedure. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=147&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 07 March 1996 Parties Pars Ram Brothers (Aust.) Pty Ltd v. Raimundo Otero, S.L. Case number ATS 310/1996 Applicable NYC Provisions V | V(1) | 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=4659&opac_view=6 Attachment (1)
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Country Singapore Court Singapore, High Court Date 29 September 1995 Parties Re An Arbitration Between Hainan Machinery Import and Export Corp and Donald & McArthy Pte Ltd Case number [1995] SGHC 232, Originating Summons No 1056 of 1994 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(c) | V(1)(d) | V(2) | V(2)(a) | V(2)(b) Source Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4167&opac_view=6 Attachment (1)
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