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Switzerland / 11 March 1992 / Switzerland, Tribunal fédéral (Federal Tribunal) / P. v. Société S.
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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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 11 February 1981 Parties Rederiaktiebilaget GustafErikson v. Eurofrío Alimentos Congelados, S.A. Case number ATS 4/1981 Applicable NYC Provisions IV | V | V(1) | V(1)(a) | 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=4639&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 08 February 1978 Parties X SA v. Y Ltd Case number P. 217/76 Applicable NYC Provisions V | V(1) | V(1)(b) | V(1)(d) | V(2) | V(2)(b) Source Original decision obtained from the registry of the Tribunal Fédéral
Languages English Summary An International Chamber of Commerce (ICC) award was rendered on 1 October 1973, in The Hague, in favor of Y against X. Y sought enforcement of the award in Switzerland pursuant to Article IV NYC by producing the original award, its sworn translation and the original contract containing the arbitration agreement. X challenged the enforcement on the grounds that the award violated public policy under Article V(2)(b) NYC, as the arbitrators had consulted an expert in the chrome industry in the absence of the parties. The Tribunal de première instance of Geneva (Geneva Tribunal of First Instance) denied enforcement on the ground that the arbitral procedure was not in accordance with the arbitration agreement. On appeal, the Cour de Justice of Geneva (Geneva Court of Appeal) overturned the decision and allowed the enforcement of the award. X appealed, invoking a violation of Articles V(1)(b) and V(1)(d) NYC. The Tribunal Fédéral (Federal Tribunal) confirmed the decision of the Cour de Justice of Geneva and allowed the enforcement of the award. The Tribunal Fédéral confirmed that the NYC was applicable to govern the enforcement procedure of an award rendered in the Netherlands, a State party to the NYC. The Tribunal Fédéral differentiated between Article V(1) NYC, which lists grounds which must be raised by the party opposing enforcement while grounds under Article V(2) NYC may be raised sua ponte by the enforcing court. The Tribunal Fédéral analyzed both Articles V(1)(b) and V(1)(d) grounds under the perspective of public policy and recalled that a violation of public policy could relate to the award itself or to the procedure according to which it has been rendered and that denial of enforcement of an award could be granted only in case of a violation of the fundamental principles of the Swiss legal order. The Tribunal Fédéral held that the fact that the arbitrators sought external and professional advice on the commercial context of the dispute but not on an issue which could bring a solution to the case did not amount to a violation of fundamental principles of Swiss public policy. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=908&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 10 May 1971 Parties Compagnie de Saint-Gobain Pont-à-Mousson v. The Fertilizer Corporation of India Limited Case number J 9915 Applicable NYC Provisions V | V(1) | V(1)(b) | V(1)(c) | V(1)(e) | V(2) | V(2)(b) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary A French company (Saint Gobain) entered into an agreement with an Indian company (Fertilizer Corporation of India Limited - F.C.L.I.) for the construction of a plant in India. A dispute arose and an award was rendered on 29 September 1969 in New Delhi in favor of F.C.L.I. In an order issued on 3 December 1969, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. In the meantime, Saint-Gobain initiated an action before the High Court of New Delhi to have the arbitral award declared without legal effect until it had been approved by the aforementioned court. Saint-Gobain also challenged the enforcement order before the President of the Tribunal de Grande Instance de Paris, arguing that the award had not yet become binding on the parties and that due process had been violated and that therefore the enforcement should be refused pursuant to Articles V(1)(b) and V(1)(e) NYC. In the alternative, Saint-Gobain requested an adjournment of the decision on the enforcement of the award pending the proceedings before the High Court of New Delhi in accordance with Article VI NYC. The President du Tribunal de Grande Instance de Paris dismissed the action on 15 May 1970. On 17 November 1970, the Indian Supreme Court declared that the award was final and binding on the parties. Appealing the 15 May 1970 order, Saint-Gobain argued that (i) the arbitral tribunal had failed to comply with the mandate conferred upon it (Article V(1)(c) NYC), (ii) due process had been violated (Article V(1)(b) NYC), and that (iii) the award was contrary to the public policy of the country where recognition and enforcement was sought (Article V(2)(b) NYC). The Cour d'appel de Paris (Paris Court of Appeal) affirmed the decision of the President of the Tribunal de Grande Instance de Paris of 15 May 1970 and upheld the enforcement order. It did not refer to the NYC and rejected all of the arguments raised by Saint-Gobain based, inter alia, on the alleged violation of due process and public policy. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=110&opac_view=6 Attachment (1)
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