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France / 24 March 1998 / France, Cour de cassation / Société Excelsior Film TV v. Société UGC-PH / 95-17.285
Country France Court France, Cour de cassation (French Court of Cassation) Date 24 March 1998 Parties Société Excelsior Film TV v. Société UGC-PH Case number 95-17.285 Applicable NYC Provisions V | V(2) | V(2)(b) Source Original decision obtained from the registry of the Cour de cassation
Summary An award was rendered in Rome in favor of an Italian company (Excelsior) against a French company (UGC-PH). The Cour d'appel de Paris (Paris Court of Appeal) refused enforcement of the award in France by ruling that it was contrary to international public policy as one of the arbitrators did not fulfill the requirement of impartiality. Excelsior challenged this decision on the grounds that the Cour d'appel de Paris not only had disregarded the terms of the dispute and distorted the foreign award, but had also violated the NYC, whose provisions prevail over domestic law and which allows for a refusal of enforcement on the basis of public policy if it relates to the recognition and enforcement of the award and not, as it did, to the Court's decision-making process. The Cour de cassation (Supreme Court) affirmed the decision of the Cour d'appel de Paris and dismissed the action. It reasoned that the provisions of Article V(2)(b) NYC are essentially identical to those of Article 1502 5° of the Code of Civil Procedure, in that they allow refusal of enforcement of an award which was rendered abroad in violation of the public policy of the country where the enforcement is sought. In the case at hand, the Cour de Cassation held that that the constitution of the arbitral tribunal violated due process and that therefore the award was contrary to French public policy under both Article V(2)(b) NYC and Article 1502 5° of the Code of Civil Procedure. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=152&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 United Kingdom Court England and Wales, High Court Date 19 December 1997 Parties Westacre Investments Inc v. Jugoimport-SDRP Holding Co Ltd Applicable NYC Provisions V | V(2) | V(2)(b) Source [1998] 3 W.L.R. 770 | online: ICLR
Languages English Summary Summary in preparation affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1187&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 11 December 1997 Parties X v. Y Case number C/20312/1997 Applicable NYC Provisions IV | IV(1) | IV(1)(b) | V | V(2) | V(2)(b) Source Original decision obtained from the registry of the Cour de Justice de Genève
Languages English Summary X, a Swiss company, and Y, a Chinese company, entered into three contracts in 1994 for the sale of Chinese peanuts (the “1994 Contracts”). The general conditions were printed on the reverse side of the first two contracts and included an arbitration agreement providing for arbitration in the State of the respondent. The arbitration clause was completed by typing machine and stated “if any, shall be in Beijing, China”. A previous contract had been entered into by the parties in 1993 providing for arbitration at the place of the registered office of the respondent. A dispute arose between the parties. Pursuant to the arbitration agreement contained in the 1994 Contracts, Y seized the Chinese Commission for Arbitration on 4 July 1995. A month later, Y sought to provisionally attach assets belonging to X in the Netherlands. X brought this matter before the Chinese Commission for Arbitration which held that the Holland Court had jurisdiction to rule on such conservatory measures. On 5 March 1996, the arbitral tribunal rendered an award in Beijing in favor of Y which was not subject to any appeal. On 9 May 1997, Y served X with a debt collection order directing X to pay sums due under the award. X opposed the debt collection order. Y brought a request for final dismissal of the objection to pay (mainlevée) and for enforcement of the arbitral award before the Tribunal de Première instance (First Instance Tribunal). On 17 September 1997, the Tribunal de Première instance, based on the 1994 Contracts, ordered the provisional dismissal of the objection to pay. Both X and Y appealed. X argued that certain amounts due to X should be set-off against the award and, in the alternative, that the award violated the NYC and Swiss public order. The Cour de Justice de Genève (Court of Justice of Geneva) annulled the decision of the Tribunal de Première Instance, ordered the definitive dismissal of the objection to pay, thus granting enforcement of the award. The Cour de Justice de Genève held that pursuant to Article 194 of the Swiss Private International Law (“SPIL”) the NYC was applicable, as Y’s request was based on an arbitral award rendered abroad. The Cour de Justice found that the award was final because the arbitration rules did not provide for an appeal against the award. The Cour de Justice de Genève rejected X’s argument under Article IV(1)(b) NYC that Y had not filed the arbitration agreement contained in the third contract. It noted that X had not objected to the jurisdiction of the arbitral tribunal, nor had it filed the contracts in the arbitration proceedings, which had been made in two copies. It held that the third contract referred to the same general conditions as the first two contracts, and that there, as a consequence, an arbitration agreement providing for arbitration under the Chinese Commission for Arbitration existed. Turning to the allegation that enforcement would violate Swiss public policy, the Cour de Justice de Genève held that a violation of Article V(2)(b) NYC could be examined sua ponte by the Court, but the requirements for such a violation would only be satisfied where there was a violation of fundamental principles of Swiss legal order, which was not the case in the matter at hand. It therefore dismissed the argument. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1541&opac_view=6 Attachment (1)
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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 Spain Court Spain, Tribunal Supremo (Supreme Court) Date 03 June 1997 Parties Expolco Trading, S.L. v. Mercantil Impexpoes, S.A. Case number ATS 527/1997 Applicable NYC Provisions I | III | IV | V | V(2) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4660&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 20 June 1996 Parties Société Le Pool d'Assurance des Risques Internationaux et Sociaux (P.A.R.I.S.) v. Société Razel Case number 94/26063 Applicable NYC Provisions V | V(2) | V(2)(b) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary A French company (Razel) entered into an agreement with an Algerian company (SNS, whose rights and obligations had been assumed by another Algerian company, SIDER). The French company subsequently subscribed to an insurance agreement with the Pool d'Assurance des Risques Internationaux et Spéciaux (P.A.R.I.S.) in order to guarantee part of the loss it may suffer should SIDER breach its contractual obligations. A dispute arose between the parties and since P.A.R.I.S., as Razel's insurer, refused to cover the loss resulting from said dispute, the French company commenced an arbitration against its insurer and an award was subsequently rendered on 1 July 1994 in favor of Razel. P.A.R.I.S. commenced an action to set aside the award, arguing that the arbitral tribunal did not comply with the mandate conferred to it in accordance with Article 1502 3° of the Code of Civil Procedure and had failed to take into account the alleged fraud committed by Razel. It argued further that the award should be set aside since its recognition and enforcement in France would be contrary to Algerian public policy and international public policy, which incorporates, according to Article V(2)(b) NYC, both the French conception of international public policy and Algerian national and international public policy, in that it is contrary to Article 700 of the Algerian Commercial Code and because the award contains a contradictory statement. The Cour d'appel de Paris (Paris Court of Appeal) dismissed the action to set aside the award. It first reasoned that the underlying award is an international award in that the transaction that gave rise to the dispute is international. As to the alleged violation of international public policy, the Cour d'appel de Paris did not refer to the NYC but found that the principles of Algerian public policy invoked by the French company were not contrary to the French conception of international public policy. It then dismissed the other claims based on Article 1502 of the Code of Civil Procedure and on the alleged fraud. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=112&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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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 07 August 1995 Case number 14.94.00021 Applicable NYC Provisions III | IV | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) | V(1)(e) | V(2) | V(2)(b) | VII | VII(1) Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary An award was rendered in Italy on 22 December 1993. Upon X’s request, the Ufficio d’Esecuzione di Lugano (Debt Collection Office of Lugano) issued a payment order, to which Y raised an objection (opposizione). X requested the dismissal of the objection (rigetto definitivo) before the Pretore del Distretto di Lugano (First Instance Court of Lugano). In response, Y relied on Article VII NYC and claimed that X had not complied with the provisions of the Convention between Switzerland and Italy on the recognition and enforcement of judgments of 1933, which provided that the award had to be enforced in Italy first, and that absent such enforcement the award had not yet become binding on the parties pursuant to Article V(1)(e) NYC. Y also argued that (i) the award was null and void according to Article V(1)(d) NYC, since the arbitrators had not complied with the 90 day time limit to render the award, (ii) it had been unable to present its case, in violation of Article V(1)(b) NYC, because the arbitrators had continued with the proceeding after Y’s counsel resigned, (iii) the arbitration agreement was null and void pursuant to Article V(1)(a) NYC since the subject-matter of the dispute was not capable of settlement by arbitration under the law applicable to the agreement (i.e. Italian law), (iv) the award was contrary to Swiss public policy because Y had been unable to present its case, and (v) the arbitrators had not complied with the arbitration agreement because they had decided ex aequo et bono instead of applying the law. In response X argued, inter alia, that pursuant to Article III, the award had become binding on the parties as soon as it had been signed by the arbitrators, irrespective of its recognition and enforcement in Italy. The Pretore rejected Y’s arguments and dismissed the objection. Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) dismissed the appeal, thus dismissing the objection to the payment order and allowing the enforcement of the award to proceed. The Tribunale d’Appello observed that pursuant to Article 194 of the Federal Act on Private International Law, the NYC is applicable to the enforcement and recognition of foreign awards. Referring to Article VII(1) NYC, the Tribunale d’Appello noted that the Federal Council had decided that a party seeking to recognize or enforce a foreign award could either rely on the provisions of the NYC or on any other more favorable provisions contained in a convention binding Switzerland or under Swiss law. As a consequence, the Tribunale d’Appello held that X was entitled to rely on the provisions of the NYC, which do not require obtaining the award to be enforced in Italy in order to be recognized and enforced in Switzerland. It further held that, pursuant to Article V(1)(e) NYC, the award became binding on the parties as soon as it was signed by the arbitrators. The Tribunale d’Appello rejected Y’s claim that it had been unable to present its case, holding that it had had sufficient time to appoint a new counsel but had failed to do so. It also dismissed Y’s objections that the arbitration agreement was null and void according to Article V(1)(a) NYC, and that the subject-matter was not capable of settlement by arbitration. Lastly, the Tribunale d’Appello held that the recognition and enforcement of the award did not violate Swiss, recalling that according to Swiss case law and doctrine, such violation occurred only when the recognition or enforcement of the award was against the most fundamental rules of Swiss law, which was not the case here. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1300&opac_view=6 Attachment (1)
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Country Cyprus Court Cyprus, Ανώτατο Δικαστήριο Κύπρου (Supreme Court of Cyprus) Date 28 July 1995 Parties Beogradska Banka D.D. Case number Αpplication No. 74/95 Applicable NYC Provisions III | IV | V | V(2) | V(2)(b) Source http://www.cylaw.org (CyLaw website)
Languages Greek, Modern (1453-) affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6629&opac_view=6 Attachment (1)
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Country India Court India, Supreme Court Date 07 October 1993 Parties Renusagar Power Co Ltd v. General Electric Company and anor. Applicable NYC Provisions V | V(2) | V(2)(b) Source (1994) 2 Arb LR 405: AIR 1994 SC 860, 885, 888: 1994 Supp (1) SCC 644 | http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary Renusagar Power Co Ltd (“Renusagar”) entered into a contract General Electric Company (“General Electric”), which provided for arbitration under the auspices of the International Chamber of Commerce (“ICC”) in Paris. A dispute arose and General Electric referred the matter to arbitration. Renusagar argued that the dispute did not fall within the scope of the arbitration agreement but the Supreme Court of India ruled against it. An award was rendered in favour of General Electric which it sought to enforce before the High Court of Bombay. The High Court enforced the award and Renusagar appealed to the Supreme Court, arguing that (i) the arbitral tribunal had failed to inform it of the potential effects of certain of the Tribunal's decisions, thereby rendering it unable to present its case in violation of Section 7(1)(a)(ii) of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) (mirroring Article V(1)(b) NYC); and, (ii) the terms of the award were grossly unfair, so enforcement would be contrary to public policy, in violation of Section 7(b)(ii) of the 1961 Act (mirroring Article V(2)(b) NYC). The Supreme Court dismissed Renusagar’s appeal and affirmed the lower court's decision. The Court rejected Renusagar’s contention that it had been unable to present its case in violation of Section 7(1)(a)(ii) of the 1961 Act because Renusagar voluntarily refused to appear before the arbitral tribunal. Therefore, it could not complain of the alleged effects this had on presentation of its case at this stage in the proceedings. The Court also rejected Renusagar’s public policy argument. First, it held that the term “public policy” in Section 7(1)(b)(ii) of the 1961 Act referred to the public policy of India and not the public policy of New York. It based this conclusion on Article V(2)(b) NYC, which it found to clearly refer to the public policy of the country enforcing the award. Second, it held that the award was not contrary to the public policy of India. The Court determined that under Section 7(1)(b)(ii) of the 1961 Act, the enforcement an award violates the public policy of India if enforcement would be contrary to (i) a fundamental policy of Indian law; (ii) the interests of India; or, (iii) justice or morality. The Court found that no aspect of the award or interest was excessive or unjust, and therefore enforcing the award would not be contrary to India's public policy. see also :
- 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 / §11
- India / 11 August 1987 / India, Supreme Court / Renusagar Power Co Ltd v. General Electric Company and anor. / Civil Appeal No. 2319 of 1986
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. International – transnational public policy / §13
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. The public policy exception under the Convention / §5
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=411&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 12 February 1993 Parties Société Unichips Finanziaria SpA and Société Unichips International BV v. Consorts Gesnouin Case number 92-14017 Applicable NYC Provisions V | V(1) | V(1)(b) | V(1)(c) | V(2) | V(2)(b) | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary On 25 February 1988, two individuals sold their shares in various companies of the Gesnouin Group to an Italian company (Unichips). A dispute arose and the two individuals commenced arbitration against Unichips. An award was rendered on 18 and 27 December 1990 in their favor. On 1 July 1991, the Swiss Federal Court rejected Unichips' action to set aside the award. In an order issued on 19 February 1992, 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, Unichips argued that (i) the arbitral tribunal ruled without complying with the mandate conferred upon it (Article 1502 3° of the Code of Civil Procedure), (ii) due process was violated (Article 1502 4°), and (iii) the award was contrary to international public policy (Article 1502 5°). The two individuals contented that French courts were bound by the decision of the Swiss Federal Court and thus could not control the international validity of the award. The Cour d'appel de Paris (Paris Court of Appeal) upheld the enforcement order and dismissed the appeal. It first reasoned that the enforcement of an international award is subject to enforcement procedures in accordance with the conditions set forth in the NYC and under French law. It then held that the decision of the Swiss Federal Court dismissing the action to set aside the award does not deprive French courts from controlling the international validity of an award in order to allow its integration in the French legal order, whether this control is made with regard to the NYC or French law. It thus declared the appeal of the enforcement order admissible, while noting that pursuant to Article VII NYC, if the requirements for the recognition and enforcement of an award under French law are less strict than that of the NYC, the former shall prevail. The Cour d'appel de Paris then dismissed Unichips' arguments based on Article V NYC and Article 1502 of the Code of Civil Procedure. As to the violation of due process, it noted that Article V(1)(b) NYC and Article 1502 4° of the Code of Civil Procedure have the same purpose and are similar in their content and scope. It noted further, regarding the violation of international public policy, that the provisions of Article V(2)(b) and Article 1502 5° of the Code of Civil Procedure are identical. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=135&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 11 March 1992 Parties P. v. Société S. Applicable NYC Provisions V | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6293&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Court (General Division) Date 13 February 1992 Parties Schreter v. Gasmac Applicable NYC Provisions V | V(2) | V(2)(b) Source [1992] O.J. No. 257 | online: CanLII
Languages English Summary In 1987, Schreter entered into a sales contract with Gasmac Inc. (“Gasmac”) which contained an arbitration clause providing for the resolution of all disputes arising under the contract through arbitration in Atlanta, Georgia, under the rules of the American Arbitration Association. Schreter initiated arbitration proceedings against Gasmac in 1989 for breach of contract and obtained a favourable award. Schreter applied to enforce the award in Ontario. Gasmac opposed the enforcement, claiming that the arbitrator’s award granting accelerated damages violated public policy in Ontario. The Ontario Court granted enforcement of the award, finding that its enforcement would not violate public policy. Although its decision was based on the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”), it referred to the scope of the “public policy” exception under Article V(2)(b) NYC. The Court reasoned that the purpose of imposing the public policy of a province or state on foreign awards was to safeguard against the enforcement of an award which offended fundamental notions and principles of justice. The Court noted that this could not warrant the reopening of the merits of an arbitral decision and that such an action could bring the enforcement procedure of the UNCITRAL Model Law into disrepute. The Court found that in the present case, Gasmac had had a full hearing and made arguments during the arbitral proceedings, and that the award of accelerated damages would not violate public policy in Ontario. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=904&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 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 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 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 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 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 Korea Court Korea, Seoul Civil District Court Date 12 April 1984 Parties Cheil Steamer Co., Ltd. v. Construction Industry Co., Ltd. Case number 83Gahap7051 Applicable NYC Provisions III | IV | IV(1) | IV(2) | V | V(1) | V(1)(b) | V(1)(d) | V(2) | V(2)(b) Source Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6414&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 10 February 1984 Parties Gill and Duffus Limited v. Cía. Europea y Aleaciones S.A. (Euroalloys) Case number ATS 16/1984 Applicable NYC Provisions II | V | V(1) | V(1)(a) | V(1)(d) | V(2) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3970&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 17 June 1983 Parties Ludmila C. Shipping Company Limited v. Maderas G.L. S.A. Case number ATS 680/1983 Applicable NYC Provisions I | II | V | V(1) | V(1)(a) | V(1)(b) | V(2) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3967&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Bundesgericht Date 26 February 1982 Parties Joseph Müller AG v. Bergesen und Obergericht (II. Zivilkammer) des Kantons Zürich Applicable NYC Provisions V | V(1) | V(1)(d) | V(1)(e) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary The parties concluded several charter parties all of which contained an arbitration clause providing for arbitration in New York City, under New York law, and stating that any arbitral award rendered under the agreement was to be enforceable by any competent court and was to be finally effective and binding on the parties in any country. The Respondent obtained a favorable award against the Applicant, which, upon the Respondent’s application, the Bezirksgericht (Regional Court) Zurich declared to be enforceable. The Applicant’s appeal to the Obergericht (Higher Cantonal Court) Zurich was rejected, after which the Applicant filed a complaint before the Bundesgericht (Swiss Federal Tribunal), requesting that the Bezirksgericht’s decision be annulled and the matter remanded to the Obergericht for a new decision. The Applicant contended that the Obergericht had violated Article V(1)(e) NYC since it had wrongly held the award to be binding even though under New York law an award did not become binding and enforceable until it had been confirmed by a state court. The Bundesgericht dismissed the Applicant’s complaint, stating that the Applicant carried the burden of proving that the award had not become binding under Article V(1)(e) NYC. It found that whether an award had become binding on the parties was primarily a question to be determined according to the law applicable to the arbitral proceedings, which, as evidenced by Article V(1)(d) NYC, consisted primarily of the rules agreed upon by the parties and, in the absence of any such agreed rules, the law of the state where the arbitral proceedings were seated. The Bundesgericht further stated that the parties’ right to freely design the applicable procedural rules also included the parties’ right to declare certain mandatory state procedures to be inapplicable and to substitute them by their own rules, as long as this did not violate the public policy of the enforcement state under Article V(2)(b) NYC. The Bundesgericht noted that as long as the arbitral award was not appealable under the applicable procedural law, Swiss public policy did not provide any reason for refusing enforcement in Switzerland. The Bundesgericht concluded that in the present case the parties had agreed on New York law but had also agreed that the award should be enforceable by any competent court and be finally effective and binding on all parties in any country, which in turn meant that the award would become binding not after confirmation under New York law, but as of its issuance. The Bundesgericht added that the Applicant had failed to show that the alleged requirement to confirm the award under New York law was compatible with the parties’ arbitration agreement. The Bundesgericht further stated that even if the award was not declared enforceable at the place where it was issued, it could be binding on the parties and that a mandatory requirement to declare an award enforceable at its seat would run counter to the objective of the NYC to avoid double exequatur. According to the Bundesgericht, it was sufficient that the award was susceptible to exequatur at the arbitral seat. Finally, the Bundesgericht stated that the Applicant’s expert, who had considered an “unconfirmed award” to be a “mere expectation” had only considered the award in the light of New York law but not in the light of the NYC. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1424&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 08 October 1981 Parties Inter-Continental de Café (International) S.A. v. Doña Edurne Case number ATS 457/1981 Applicable NYC Provisions I | II | V | V(2) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3961&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Reims (Court of Appeal of Reims) Date 23 July 1981 Parties Denis Coakley Limited v. Société Michel Reverdy Case number 774/81 Applicable NYC Provisions V | V(2) | V(2)(b) Source Original decision obtained from the registry of the Cour d’appel de Reims
Summary On 15 September 1978, a French company (Michel Reverdy) sold four shipments of grain to an Irish company (Denis Coakley Limited). A dispute arose and two arbitral awards were rendered in London on 23 May 1980 and 29 September 1980 (the second award, rendered on appeal of the first pursuant to the GAFTA rules, confirmed the first award and ruled in favor of Denis Coakley). In an order issued on 24 November 1980, the President of the Tribunal de Grande Instance de Troyes (First Instance Court of Troyes) allowed enforcement of the awards in France. This decision was subsequently reformed on 6 May 1981, on the ground that one of the arbitrators in the first procedure had subsequently acted as counsel for Denis Coakley in the second procedure, contrary to international public policy. Appealing this decision, Denis Coakley argued that the action was not admissible and that the awards complied with international public policy and did not violate due process. The Cour d'appel de Reims (Reims Court of Appeal) overturned the 6 May 1981 decision and upheld the enforcement order of 24 November 1980. It reasoned that even though the NYC, applicable to the case at hand, provides that the arbitral procedure should comply with the law of the country where the arbitration took place, the recognition and enforcement of the arbitral award should, by virtue of Article V(2)(b) NYC not be contrary to the public policy of the country where the recognition and enforcement are sought. It added that it must examine whether the arbitral awards were compatible with the French concept of public policy and due process. It noted further that the public policy governing the enforcement of foreign arbitral awards is not the domestic public policy, but relates to international law of the State where the decision is sought to be relied upon. In the case at hand, the Cour d'appel de Reims held that Michel Reverdy failed to establish that the 23 May 1980 award was contrary to French international public policy and that due process had been violated. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=115&opac_view=6 Attachment (1)
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