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Germany / 12 March 1998 / Germany, Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court of Hamburg) / 6 U 110/97
Country Germany Court Germany, Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court of Hamburg) Date 12 March 1998 Case number 6 U 110/97 Applicable NYC Provisions V | V(2)(b) Source DIS
Summary The Parties entered into a construction contract according to which the Defendant agreed to pay 4% of the total sum of contract to the Claimant in exchange for its services. They subsequently amended their first agreement, lowering the percentage to 3% of total contract sum. Both agreements contained an arbitration clause providing for the resolution of disputes at the International Chamber of Commerce (ICC) in Zurich. The Defendant terminated the contract, alleging that the Claimant had not performed and that their agreement did not comply with Syrian law. The Defendant refused to pay any sums to the Claimant. The Claimant initiated ICC proceedings and obtained a favorable award, which was granted enforcement by the Landgericht (Regional Court) Hamburg. The Hanseatisches Oberlandesgericht (Higher Regional Court Hamburg) affirmed the lower court decision granting enforcement. It found that there was no invalid arbitration clause justifying non-enforcement under Article V(1)(a) NYC, because the alleged nullity of the contract did not affect the validity of the arbitration clause. The Defendant had failed to show sufficient grounds for violation of public policy justifying non-enforcement under Article V(2)(b). According to the Court, the recognition and enforcement of an arbitral award will only be refused where the award is tainted by a grave defect that affects the fundamental principles of state and economic life, or where it is unacceptably at odds with German principles of justice. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=238&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 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 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 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 United States Court United States, U.S. District Court, Southern District of New York Date 24 August 1990 Parties Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Indus. Y Comercial Case number 90 Civ. 0720 (KC) Applicable NYC Provisions V | III | V(1)(b) | V(1)(c) | V(1)(e) | V(2)(b) Languages English Summary International Standard Electric Corporation (“ISEC”), an American corporation, and Bridas Sociedad Anonima Petrolera, (“Bridas”), an Argentinean company, entered into a shareholders agreement. A dispute arose and arbitration was commenced in Mexico City pursuant to an arbitration clause in the agreement which provided for arbitration before the International Chamber of Commerce (“ICC”) under U.S. law. An arbitral tribunal ruled in favor of Bridas. ISEC filed a petition in the United States Court for the Southern District of New York to vacate the award. Bridas cross-petitioned the District Court and sought enforcement of the award under Article III NYC. ISEC opposed the enforcement on three grounds. First, it argued that it was unable to present its case within the meaning of Article V(1)(b) NYC. Second, it argued that the arbitrators had exceeded their authority by awarding damages based on equitable norms rather than legal grounds, in violation of Article V(1)(c) NYC. Third, it argued that enforcement of the award would be contrary to the public policy of the United States pursuant to Article V (2)(b) NYC because “the secret procedures” utilized by the arbitrators in appointing an expert violated due process standards. The District Court dismissed SEC’s petition to vacate the award for lack of subject matter jurisdiction and granted Bridas’ cross-petition to enforce the award. In so ruling, it found that the “competent authority” within the meaning of Article V(1)(e) NYC, for entertaining the action of setting aside the award, is the “country in which, or under the law of which, that award was made”. The Court found that the contested language “the country under the law of which that award was made” meant the procedural law of the arbitration and not the substantive law of the contract. Hence, only the courts of Mexico, where the arbitration took place, had jurisdiction under the NYC to vacate the award. The District Court found no basis under the NYC to refuse enforcement of the award. The Court found that SEC had waived its right to object to the tribunal’s decision to appoint an independent expert since it did not object to the appointment procedure at the time. There were therefore no grounds for non-enforcement pursuant to Articles V(1)(b) NYC and V(1)(b) NYC. The Court also found that the appointment procedure did not amount to a violation of U.S. public policy within the meaning of Article V(2)(b) NYC. In connection with the second defense under Article V(1)(c) NYC, the District Court found it to be a disguised “manifest disregard of law” defense, which it dismissed on the grounds that it was prevented under the NYC to reconsider the factual findings of the arbitral panel. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1157&opac_view=6 Attachment (1)
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Country Egypt Court Egypt, Court of Cassation Date 21 May 1990 Parties Harbottle Company Limited v. Egypt for Foreign Trade Company Case number 815/52 Applicable NYC Provisions V | IV | V(1)(c) | V(2)(b) Languages English Summary On 15 November 1975, Harbottle Company Limited (“Harbottle”) and Egypt for Foreign Trade Company (“Egypt Foreign Trade”) entered into a contract by which Harbottle undertook to supply a quantity of coal to Egypt Foreign Trade. The contract provided for the settlement of disputes through arbitration in London in accordance with the Arbitration Rules of the London Court of International Arbitration (“LCIA Arbitration Rules”). Harbottle initiated arbitration proceedings, claiming that Egypt Foreign Trade had breached its obligations under the contract. On 29 November 1978, the sole arbitrator issued an award ordering Egypt Foreign Trade to pay damages to Harbottle, along with 8% interest and arbitration costs. On 19 May 1980, Harbottle sought enforcement of the award before the South Cairo Court of First Instance, which rejected Harbottle’s request for enforcement. On 21 January 1982, the Cairo Court of Appeal overruled the judgment of the South Cairo Court of First Instance and granted enforcement to the award only to the extent of ordering Egypt Foreign Trade to pay damages. It also ordered Harbottle to pay the costs of the proceedings before the Court of First Instance for failing to submit the original award in those proceedings. On 2 March 1982, Harbottle challenged the judgment of the Cairo Court of Appeal before the Court of Cassation and alleged, inter alia, that the Cairo Court of Appeal had incorrectly applied the law by not enforcing the part of the award ordering Egypt Foreign Trade to pay interest and arbitration costs. Harbottle also claimed that it should not bear the costs of the proceedings before the Court of First Instance as it had produced a copy of the award which was equivalent to the original. The Court of Cassation partially overruled the judgment of the Cairo Court of Appeal and granted enforcement to the award, ordering Egypt Foreign Trade to pay damages, arbitration costs and interest, after reducing the interest rate to 5%. The Court noted that according to Articles V(1)(c) and V(2)(b) NYC, Egyptian Courts should reject the enforcement of foreign arbitral awards where they contravene public policy in Egypt and not where they only contravene mandatory legal rules. It held that where only part of an arbitral award contravenes public policy, Egyptian Courts should enforce those parts of the award which are not in contravention with public policy. It also stated that Egyptian Courts should refrain from reviewing the merits of the award. The Court found that the Egyptian legal rule allowing a maximum interest rate of 5% in commercial matters constituted a rule of public policy and granted enforcement to the order for payment of interest after limiting the interest rate to the 5% maximum. The Court granted enforcement to the order requiring payment of arbitration costs on grounds unrelated to the NYC. Finally, the Court of Cassation rejected Harbottle’s challenge to the decision of the Cairo Court of Appeal ordering Harbottle to bear the costs of the proceedings before the Court of First Instance. It observed that in accordance with Articles 299 and 301 of the Egyptian Code of Civil and Commercial Procedure and Article IV NYC, the party applying for enforcement of a foreign arbitral award had to provide the Court with the original award and arbitration agreement or a duly certified copy thereof, along with certified Arabic translations of these documents where the original documents are in a foreign language. The Court concluded that, as Harbottle had failed to provide the Court of First Instance with the required documents, the Cairo Court of Appeal had rightly ordered it to pay the costs of the proceedings before the Court of First Instance. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=967&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 26 April 1990 Case number III ZR 56/89 Applicable NYC Provisions V | V(2)(b) Source BGH Summary The Parties concluded a contract for the delivery of soybean flour providing for Grain and Feed Trade Association (GAFTA) arbitration in London. The United States placed an embargo on the merchandise. The Buyer accepted partial delivery but refused to take delivery of the rest of the merchandise once delivery became possible. The Seller claimed compensation. The award, affirmed in relevant parts by an appellate award rendered by the GAFTA Board of Appeal, denied the claim and granted the Buyer's counterclaim for damages for the Seller's non-performance. The Seller's action to set aside the award before the High Court in London failed. The Buyer's request for leave to enforce was granted by the Landgericht (Regional Court) Hamburg. This decision was confirmed by the Hanseatisches Oberlandesgericht (Higher Regional Court of Hamburg). The Bundesgerichtshof (Federal Supreme Court) affirmed the decision of the Oberlandesgericht, rejecting the Seller's objection of violation of due process under Article V(1)(b) NYC. It held that a party is barred from raising objections that it should have raised before the "juge d'appui" only where such objections relate to irregularities in the arbitral procedure which violate the law of the State where arbitration takes place, and the Seller's objection did not fail on that ground. Rather, the Court found that the Seller's objection failed because it had the right to be heard before the GAFTA Board of Appeal. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=229&opac_view=6 Attachment (1)
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Country Korea Court Korea, Supreme Court of Korea Date 10 April 1990 Parties GKN International Training (London) Limited v. Kukje Trading Co., Ltd. Case number 89Daka20252 Applicable NYC Provisions I | I(1) | I(3) | II | II(2) | III | IV | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) | V(2) | V(2)(b) Source Languages Korean Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6415&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 18 January 1990 Case number III ZR 269/88 Applicable NYC Provisions I | V | I(1) | V(1)(b) | V(2)(b) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary The parties concluded a contract for the sale of barley. A dispute arose and the Buyer initiated arbitration proceedings with the Grain and Feed Trade Association (GAFTA), which issued two awards ordering the Seller to pay damages to the Buyer. The Seller sought to have the awards annulled by the High Court of Justice in London but was unsuccessful. The Buyer sought enforcement of the award before the Landgericht (Regional Court) Hamburg. The Seller objected to the enforcement, arguing that the arbitral proceedings had been conducted deficiently since a third person had been involved as consultant in the oral hearing and the writing of the award. In addition, the Seller alleged that false testimony and insufficient factual statements by the Buyer had drawn an incorrect picture of the economic situation and that the arbitral tribunal had violated the Seller’s right to be heard. The Landgericht granted the enforcement of the first award in its entirety and part of the second award. The Seller unsuccessfully appealed the decision of the Landgericht to the Oberlandesgericht (Higher Regional Court) Hamburg. The Seller then appealed to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof confirmed the decision of the lower courts, stating that enforcement was subject to the NYC and Section 1044 of the German Civil Procedure Code, based on which it saw no impediments to granting enforcement. The Bundesgerichtshof stated that it did not need to decide whether the application should be assessed in accordance with Section 1044 of the German Civil Procedure Code or the NYC, since either would lead to enforcement being granted. The Bundesgerichtshof stated that both awards fulfilled the requirements of Section 1044(1) sentence 1 of the German Civil Procedure Code and Article I(1) NYC, since, as the Oberlandesgericht had stated, the arbitral awards had become binding upon the parties as they could no longer be challenged before an arbitral tribunal or state court. The Bundesgerichtshof held that recognition of the arbitral awards would not lead to a result that was in obvious contradiction with fundamental principles of German law (Section 1044(2) German Civil Procedure Code and Article V(2)(a) [sic] NYC). In this context, the Bundesgerichtshof found that the involvement of a legal consultant in the proceedings, by the tribunal, did not constitute a public policy violation since such a violation could not simply be assumed on the grounds of a deviation of a foreign arbitral procedure from mandatory domestic procedural law. It reasoned that a divergence was only relevant when it violated international public policy, which was a less restrictive standard for the recognition of foreign arbitral awards as compared to the regime for the recognition of domestic arbitral awards. According to the Bundesgerichtshof, the enforcement of a foreign arbitral award would only be refused if the arbitral proceedings had a severe defect that touched upon the fundamental basis of public and economic life, which was not the case here. With respect to the Seller’s contention that the arbitral tribunal had not appreciated that the Buyer did not have the necessary funds to secure the purchase price claim by way of a letter of credit, the Bundesgerichtshof held that this argument had already been raised before the arbitral tribunal and could therefore not be brought at the enforcement stage. It based this conclusion on the fact that the existence of grounds for revision under Section 580 of the German Civil Procedure Code, which would generally imply violations of international public policy, could no longer be raised in proceedings for recognition and enforcement of an arbitral award if the underlying facts had already been raised in the arbitral proceedings. The Bundesgerichtshof also rejected the alleged violation of the Seller’s right to be heard under Article 1044(2) No. 4 of the German Civil Procedure Code and Article V(1)(b) NYC. It held that, even if the tribunal had not addressed all of the Seller’s arguments, this did not violate the Seller’s right to be heard since an arbitral tribunal does not have to discuss its position vis-à-vis all of the parties’ arguments, rather, it is sufficient that the arbitral tribunal discusses the arguments that underlie its reasoning in the award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1335&opac_view=6 Attachment (1)
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Country Finland Court Finland, Supreme Court Date 27 February 1989 Parties Bankruptcy estate of Kommandiittiyhtiö Finexim O. Ivanoff (Finexim) and Ferromet Aussenhandelsunternehmen Case number S88/310 Applicable NYC Provisions V | V(2)(a) | V(2)(b) Source www.finlex.fi Languages English Summary Ferromet Aussenhandelsunternehmen (Ferromet) sold Kommandiittiyhtiö Finexim O. Ivanoff (Finexim) steel plates pursuant to five Sales Agreements including provisions on the reservation of the title to the goods. An arbitration clause providing for arbitration under the Court of Arbitration of the Czechoslovakian Chamber of Industry and Commerce, was included in the General Conditions of Export of the Sales Agreements. Finexim went bankrupt before the purchase price was paid and a dispute arose when Ferromet unsuccessfully requested the recession of the goods. On 27 February 1986, an award was rendered in Czechoslovakia in favor of Ferromet, who subsequently sought enforcement in Finland. Finexim’s bankruptcy estate opposed the action for enforcement on the grounds that the award was rendered against the bankrupt company instead of the bankruptcy estate and would therefore result in a different outcome than if the dispute had been decided in accordance with mandatory Finnish bankruptcy legislation, and enforcement would therefore be against Finnish public policy within the meaning of Article V(2)(b) NYC. The bankruptcy estate also argued that the tribunal had decided issues outside the scope of the arbitration agreement, which constituted a ground for non-enforcement under Article V(1)(c) NYC. Furthermore, Finexim’s bankruptcy estate argued that the enforcement of the award should be refused pursuant to Article V(2)(a) NYC because it would determine the issue of what is included in the bankruptcy estate, a question which is not arbitrable under Finnish bankruptcy law, which it argued constituted a further ground for non-enforcement under Article V(2)(b) NYC. Tampereen maistraatti (Tampere Register Office) decided that the award should be enforced, and rejected the objections that the dispute was governed by Finnish bankruptcy law and that the award decided issues outside the scope of the arbitration agreement. It further reasoned that the grounds for refusal of recognition and enforcement set forth in Articles V(2)(a) and V(2)(b) NYC did not exist in the present case, making the award enforceable. Finexim’s bankruptcy estate appealed at the Turun hovioikeus (Turku Court of Appeals), which affirmed the decision of Tampereen maistraatti, and then appealed the decision to the Korkein oikeus (Supreme Court). The Supreme Court of Finland affirmed the decision of Turun hovioikeus, reasoning that the enforceability of an arbitral award against a bankruptcy estate should be assessed pursuant to territorial jurisdiction under Finnish law. The Supreme Court reasoned that because the bankruptcy estate had sold the goods regardless of the arbitral claimant’s demand to separate the goods from the bankruptcy estate, the award concerned a debt of the bankruptcy estate and was therefore enforceable. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1561&opac_view=6 Attachment (1)
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Country Germany Court Germany, Hanseatisches Oberlandesgericht Date 26 January 1989 Case number 6 U 71/88 Applicable NYC Provisions V | V(2)(b) | V(1)(b) Source OLG Hamburg Languages English Summary The parties concluded a contract for the delivery of soybean flour providing for Grain and Feed Trade Association (GAFTA) arbitration in London. The United States placed an embargo on the merchandise. The Buyer accepted partial delivery of the goods, but refused to take delivery of the rest of the cargo. The Seller initiated arbitration proceedings. The arbitral tribunal denied the claim and granted the Buyer’s counterclaim. The award was confirmed by the GAFTA Board of Appeal. The Seller’s challenge before the High Court in London was dismissed while the Buyer’s request for leave to enforce before the Landgericht (Regional Court) Hamburg was granted. The Seller appealed. The Hanseatisches Oberlandesgericht (Higher Regional Court Hamburg) confirmed the decision of the Landgericht and dismissed the Buyer’s objections based on Articles V(2)(b) and V(1)(b) NYC. The Oberlandesgericht held that the award did not breach German public policy by obliging the Seller alone to bear the consequences of the U.S. embargo because the Seller had failed to demonstrate and prove that it was actually inhibited by the embargo from fulfilling its contractual obligations. It also held that by granting compound interest to the Buyer the award did not breach German public policy because the remedy was allowed by the law of the seat i.e. English law. It also dismissed the Seller’s allegation that the award was made in breach of its right to be heard because it had not been properly informed about the existence of the Buyer’s counterclaims during the arbitration. The Seller had various opportunities to bring these objections before the GAFTA Board of Appeal or before the London High Court but had failed to do so. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=920&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunale Federale (Federal Tribunal) Date 12 January 1989 Parties X S.A. v. Y Ltd. Case number 5P.249/1988 Applicable NYC Provisions II | II(1) | II(2) | V | V(1) | V(1)(b) | V(2) | V(2)(b) Source Original decision obtained from the registry of the Tribunale Federale
Languages English Summary X, a Swiss company, entered into a sales agreement with Y, a British company, which provided for arbitration in Great Britain. The contract was not signed by the parties but by a broker, acting as mediator. Following a dispute regarding the delivery of goods, Y initiated arbitration proceedings, which were later suspended when the parties agreed upon a new sale and by way of an addendum to the sales agreement. X failed to deliver the goods under the addendum and Y pursued arbitration, obtaining an award in its favor. Upon Y’s request, a payment order was issued in Switzerland, to which X raised an objection (opposizione). The objection was dismissed successively by both the Segretaria Assessore della Pretura di Lugano (Assessor Secretary of the First Instance Court of Lugano) and the Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal). X appealed the decision of the Tribunale d’Appello, arguing that pursuant to Article II(1) and II(2) NYC it was not bound by the arbitration clause because it had not been sent the sales agreement signed by the broker, and had never consented in writing to the arbitration clause contained therein. X also claimed that the award could not be relied upon since (i) X had been unable to present its case, constituting a breach of Article V(1)(b) NYC (ii) the arbitrator appointed by Y had been partial, and (iii) the award was contrary to Swiss public policy as the parties had not had any influence on the composition of the arbitral tribunal given that the arbitration rules required arbitrators to be members of a certain association. The Tribunale Federale Svizzero (Federal Tribunal) dismissed the appeal, thereby dismissing the objection to the payment order (rigetto definitivo). The Tribunale Federale held that the parties had confirmed their consent to the arbitration clause by stating in the addendum that the terms and conditions of the sales agreement were to remain in force. It also found that X had received written notifications of the arbitration and had therefore been fully able to present its case. After noting that issues regarding an arbitrators partiality were governed by Articles V(1)(b) and V(2)(b) NYC and Swiss law, it found that X had failed to produce any evidence in support of its claim. Finally, the Tribunale Federale ruled that the arbitration rules governed the appointment of arbitrators, and it was not contrary to Swiss public policy that the arbitrators were required to be members of a certain association. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1290&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. District Court, Eastern District of New York Date 27 October 1988 Parties Geotech Lizenz A.G. v. Evergreen Systems, Inc. Case number CV 88–1406 Applicable NYC Provisions V | IV | V(1)(a) | V(1)(b) | V(1)(c) | V(2)(b) Languages English Summary Geotech, a Swiss company, entered into a partnership agreement with Evergreen, an American company. The partnership agreement referred to a license agreement which contained an arbitration clause providing for arbitration under the rules of the Zurich Chamber of Commerce. A dispute arose and the parties allegedly entered into a settlement agreement (the “Settlement Agreement”). Subsequently, Geotech commenced arbitration and obtained a favorable award. Geotech applied for recognition and enforcement in the United States District Court for the Eastern District of New York. Evergreen resisted enforcement, arguing that: (i) the arbitration agreement was “invalid” pursuant to Article V(1)(a) NYC because it had been superseded by the Settlement Agreement; (ii) the arbitrator decided matters that were beyond the scope of the arbitration pursuant to Article V(1)(c) NYC; (iii) Evergreen was not given proper notice pursuant to Article V(1)(b) NYC; and (iv) enforcement of the award would be against public policy pursuant to Article V(2)(b) NYC in light of arguments (i), (ii) (iii) and (iv) above. The District Court granted Geotech’s petition for enforcement of the arbitral award. The Court found that the requirements of Article IV NYC had been fulfilled and that Geotech submitted certified copies of the award and the agreement. The Court found no basis under the NYC to refuse enforcement of the award. First, the Court rejected the contention that the Settlement Agreement superseded the license agreement and rendered the arbitration agreement invalid under Article V(1)(a) NYC, finding that the parties had in fact not settled their disputes. Second, the Court found that Evergreen had been given adequate notice of the arbitration proceedings as it had been informed of every stage of the arbitration process and was given an adequate opportunity to participate within the meaning of Article V(1)(b) NYC. Third, the Court rejected Evergreen’s public policy defense under Article V(2)(b) NYC, holding that such a defense would only be applicable if enforcement of the award violated “the most basic notions of morality and justice” of the forum where enforcement was sought. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1155&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 31 May 1988 Parties S.A. Walter Matter v. Sociedad Cafés Almela, S.A. Case number ATS 1722/1988 Applicable NYC Provisions V | V(2) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4652&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 31 May 1988 Parties S.A. Walter Matter v. Sociedad Cafés Almela, S.A. Case number ATS 513/1988 Applicable NYC Provisions V | V(2) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4651&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 14 April 1988 Case number III ZR 12/87 Applicable NYC Provisions V | I | V(2)(b) | V(1)(e) | V(1)(d) | V(1)(b) | I(1) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary The prevailing party in an International Chamber of Commerce (ICC) arbitration seated in Belgium sought enforcement of the award in Germany. The Landgericht (Regional Court) Stuttgart declared the award enforceable, but its decision was reversed by the Oberlandesgericht (Higher Regional Court) Stuttgart on appeal. The decision of the Oberlandesgericht was appealed before the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof reversed the Oberlandesgericht’s decision and reinstated the decision of the Landgericht, which had declared the award enforceable. It found that the NYC was applicable since the award had been rendered within the territory of another contracting state as per Article I(1) NYC. The Bundesgerichtshof held that the formal prerequisites set forth by Article IV NYC had been met and there were no grounds to refuse enforcement of the award under Article V NYC. First, it held that the award had become binding within the meaning of Article V(1)(e) NYC since it was not subject to appeal before a higher arbitral tribunal or a state court . Second, although the tribunal had exceeded the time limit for rendering its award under the ICC Rules, according to the Bundesgerichtshof, this would not constitute grounds for non-enforcement under Article V(1)(d) NYC. In this respect, it noted that under the ICC Rules an arbitral tribunal does not become functus officio unless it is substituted by a different tribunal, even if it fails to render its award within the prescribed time limit; thus, the extension of the time limit for rendering the award had nothing to do with the “composition of the arbitral authority.” Third, it ruled that not giving a party the opportunity to comment on the extension of the time limit for the issuance of the award did not constitute a ground for refusing enforcement under Article V(1)(b) NYC, recalling that this provision merely required that the parties be informed of the constitution of the arbitral tribunal and the existence of arbitral proceedings. The Bundesgerichtshof also dismissed the argument that the enforcement of the award would violate German public policy pursuant to Article V(2)(b) NYC, since the unsuccessful party had failed to make use of the possibility to comment on the extension of the time limit, thus the ICC Court’s failure to explicitly ask for the parties’ comments regarding the extension of the time limit for rendering of the arbitral award did not constitute a violation of German public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=921&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 15 June 1987 Parties Case number II ZR 124/86 Applicable NYC Provisions V | II | V(2)(b) | II(1) Source BGH Summary An investment contract between a German individual and a New York corporation, governed by New York law and containing an arbitration clause, contravened certain mandatory provisions of German exchange laws. In court proceedings in Germany, the New York corporation invoked the arbitration clause. The Bundesgerichtshof (Federal Supreme Court) held that the case was non-arbitrable under German law. The combination of arbitration proceedings abroad and applicable law other than German law would leave the German mandatory exchange laws without effect, with regard to both the protection against claims filed against the persons protected by these laws and the possibility for the protected persons to obtain reimbursement of any sum paid. In the Court's opinion, Article V(2)(b) NYC would have been applicable to the facts of the case since the contract contravened German mandatory rules that are part of German "ordre public". If the arbitration agreement were to be recognised and its validity only verified at the stage of the recognition proceedings, the German individual would be referred to arbitration before an American arbitral tribunal that would not apply the German mandatory rules, with the result that the German individual would be incapable of recovering the sums unduly paid to the New York corporation. For these reasons, the Court denied recognition of the arbitration agreement for the "subject matter" not being "capable of settlement by arbitration" pursuant to Article II(1) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=222&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 15 May 1986 Case number BGH III ZR 192/84 Applicable NYC Provisions V | V(2)(b) Source BGH Summary The Parties entered into a charterparty containing a clause providing for arbitration in London. Under the clause, each Party was to appoint one arbitrator. In the event that the arbitrators failed to reach an agreement on the decision, they would have to select an umpire to decide the dispute. The Claimant submitted a claim to arbitration and advised the Defendant that it had nominated an arbitrator, requesting that the Defendant appoint an arbitrator in 7 days or that otherwise its arbitrator would act as a sole arbitrator. The Defendant did not nominate an arbitrator and the sole arbitrator rendered an award in favor of the Claimant. Recognition was denied by the Landgericht (Lower Regional Court) Hamburg. The Hanseatisches Oberlandesgericht (Higher Regional Court Hamburg) reversed the decision and granted enforcement. The Defendant appealed. The Bundesgerichtshof (Federal Supreme Court) upheld the decision of the Hanseatisches Oberlandesgericht and granted enforcement. It concluded that the duty of impartial administration of justice is part of German public policy within the meaning of Article V(2)(b) NYC. "Ordre public international" is only considered infringed if the foreign tribunal has rendered an award on the basis of a proceeding deviating from fundamental principles of German procedural law to such an extent that the award cannot be considered rendered in an orderly procedure in accordance with the rule of law. In the interest of international trade, narrow limits must be drawn for the concept of German public policy in the context of recognition and enforcement. The recognition of an arbitral award can generally only be denied in those cases where the violation of the duty of impartial administration of justice had a real impact on the arbitral proceedings. The Court reasoned that the Defendant would have had to show that the arbitrator was unfit to act because he was partial towards one party, and that it had not met this burden. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=220&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. Supreme Court Date 02 July 1985 Parties Mitsubishi Motors Corp v. Soler Chrysler-Plymouth Case number 3-1569 Applicable NYC Provisions V | V(2)(b) Source 473 U.S. 614 Languages English Summary A dispute arose between Mitsubishi, a Japanese corporation, and Soler Chrysler, a Puerto Rican company, concerning a distribution contract. Mitsubishi brought suit in a United States federal district court to compel arbitration in Japan, relying on the distribution contract. Soler Chrysler resisted arbitration on the grounds that (i) its counterclaims were based on a Sherman Antitrust Act violation, and (ii) the claims could not be disposed of in arbitration. The District Court ruled that the antitrust claims were arbitrable, and the Circuit Court reversed. The United States Supreme Court affirmed the District Court’s decision and compelled arbitration. The question presented to the Supreme Court was whether claims arising out of the Sherman Antitrust Act were arbitrable pursuant to the Federal Arbitration Act (“FAA) or the NYC. The Court found that they were. In doing so, the Court reasoned that “concerns for international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes” required that the Court compel arbitration. The Court further based its decision on the fact that the Arbitral Tribunal was competent to hear, and had agreed to consider, the antitrust claims. Finally, the Court held that national courts of the United States would have the opportunity at the enforcement stage, pursuant to Article V(2)(b) NYC, to ensure that the legitimate interest in the antitrust issues had been addressed. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=513&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. Court of Appeals, Second Circuit Date 11 May 1984 Parties Waterside Ocean Nav. Co. v. Int’l Nav. Ltd. Case number 83-9016, 84-7184 Applicable NYC Provisions V | V(2)(b) Source 737 F.2d 150 Languages English Summary International Navigation, Ltd. (“INL”) as disponent owner, and Waterside Ocean Navigation Co., Inc. (“Waterside”) as charterer, entered into a charter party pursuant to which Waterside agreed to hire a vessel from INL. The agreement called for the arbitration of disputes in London, England. A dispute arose, and the arbitrators entered an interim award in favor of Waterside and four additional awards granting damages to Waterside. Waterside then applied to the United States District Court for the Southern District of New York for confirmation of the five awards, and it also sought post-award, pre-judgment interest. The District Court confirmed the awards but denied the latter request. Both parties appealed. The United States Court of Appeals for the Second Circuit affirmed the District Court’s decision, granted pre-judgment interest to Waterside and remanded the case to the District Court. In so holding, the Court rejected INL’s argument that confirmation would be contrary to United States public policy. The Court noted that for the recognition of an award to violate United States public policy under Article V(2)(b) NYC, such recognition must offend “the forum state's most basic notions of morality and justice”, and that to argue that the policy against inconsistent testimony was one of the United States’ most basic notions of morality and justice “would go too far”. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=730&opac_view=6 Attachment (1)
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