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Germany / 30 September 1999 / Hanseatisches Oberlandesgericht Bremen / (2) Sch 04/99
Country Germany Court Germany, Hanseatisches Oberlandesgericht Bremen Date 30 September 1999 Case number (2) Sch 04/99 Applicable NYC Provisions V | IV | V(2)(b) | V(1)(d) | V(1)(c) | V(1)(b) Source DIS Languages English Summary The parties were both shareholders in a Turkish limited liability company whose bylaws contained an arbitration agreement. The Applicant initiated arbitration proceedings at the Arbitral Commission of the Istanbul Chamber of Commerce, which issued an award in its favor. Shortly before the issuance of the award, the Respondent had filed an action at the local court of Istanbul requesting the court to declare that the arbitral tribunal lacked jurisdiction. Both the local court and the Court of Cassation dismissed the Respondent’s action. The Respondent also sought annulment of the arbitral award on the grounds that the arbitral tribunal had rendered its decision without awaiting the outcome of the decision of the state courts, which was granted by the Turkish Court of Cassation. The Applicant then initiated new arbitration proceedings requesting that the Respondent be ordered to make payment in accordance with the first award. The newly constituted arbitral tribunal issued a second award in the Applicant’s favor. The Respondent’s application to annul the second award was rejected by the Turkish Court of Cassation. The Applicant sought enforcement of the second award in Germany, which the Respondent opposed arguing that: (i) it was not given an opportunity to present its case under Article V(1)(b) NYC; (ii) that pursuant to Article V(1)(c) NYC the dispute was not covered under the arbitration agreement as the arbitration agreement applied only to disputes involving the company Atlanata Tuerkiye Ltd. Sireketi and the arbitral tribunal had misinterpreted the arbitration agreement; (iii) that under Article V(1)(d) NYC, the arbitral proceedings did not comply with the provisions of the Turkish Code of Civil Procedure which was the law of the country in which the arbitration is seated ; and (iv) that the recognition and enforcement of the arbitral award violated German public policy (Article V(2)(b) NYC). The Hanseatisches Oberlandesgericht (Higher Regional Court) Bremen granted leave to enforce the second arbitral award. It found that the formal requirements under Article IV NYC had been met. It then addressed the grounds for refusal of enforcement that the Respondent had raised. The Hanseatisches Oberlandesgericht held that the Respondent´s right to present its case under Article V(1)(b) NYC had not been violated since it had been given the opportunity to present, and indeed had presented, its defenses in both the first and second arbitral proceedings. To the extent that the arbitral tribunal had disregarded any defenses raised by the Respondent, this could merely be relevant under the aspect of a potential violation of the right to be heard (under Article V(2)(b) NYC). The Oberlandesgericht also rejected the Respondent’s defense under Article V(1)(c) NYC. It held that disputes regarding the present company were covered under the arbitration agreement because the company was not a different enterprise but had merely changed its name. In addition, it rejected the Respondent’s argument that the Turkish courts had misinterpreted the arbitration agreement holding that under the principle of automatic recognition of foreign courts the German courts were bound by the decision of the Turkish courts, which had conclusively confirmed the jurisdiction of the arbitral tribunal. With respect to the Respondent´s allegations under Article V(1)(d) NYC that the arbitral tribunal did not decide in accordance with the Turkish Code of Civil Procedure, the Hanseatisches Oberlandesgericht stated that by agreeing on the Arbitral Commission of the Istanbul Chamber of Commerce and Industry, the parties also agreed on the application of its Arbitration Rules and that the arbitral tribunal had conducted its proceedings in compliance with such rules. The Hanseatisches Oberlandesgericht further dismissed the Respondent´s argument that the enforcement of the award violated German public policy under Article V(2)(b) NYC because the arbitral tribunal had allegedly not considered certain arguments and evidence submitted by the Respondent. It stated that a violation of due process could only have occurred in the case where the relevant evidence could have influenced the outcome of the proceedings. Moreover, it clarified that German international public policy was violated only when the “decision of the foreign arbitral tribunal was rendered in proceedings that were to such an extent at odds with basic principles of German procedural law, that in the German legal system the decision cannot be deemed to have been rendered in proper legal proceedings because of a grave defect that affects the principles of public and economic life”. It further noted that, since international arbitral tribunals are composed of arbitrators with different domestic legal backgrounds, the requirements regarding the extent to which an arbitral award discusses the respective parties’ arguments as well as regarding the overall reasoning of the decision were lower and only needed to meet the more lenient requirements of German international public policy. Moreover, the Hanseatisches Oberlandesgericht also rejected the Respondent’s argument that the arbitral tribunal had wrongly concluded that the Applicant’s claims were not time-barred. It reasoned that it could only assess whether an arbitral award had correctly applied the substantive law if it were determinative of whether the recognition of the arbitral award violated public policy. However, it found, that there was no ground to assume a violation of public policy in the present circumstances since that would mean that the application of the relevant Turkish substantive law was in such stark contrast to the fundamental principles of German law and the perceptions of justice contained therein that it would be intolerable under domestic standards. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1332&opac_view=6
Country Germany Court Germany, Oberlandesgericht Brandenburg Date 02 September 1999 Case number 8 Sch 01/99 Applicable NYC Provisions V | V(2)(b) Source DIS Summary The Parties concluded a contract of sale containing a clause providing for arbitration before the Court of International Arbitration in Kiev. Bankruptcy proceedings were subsequently commenced against the Buyer in July 1998. In October 1998, the Seller obtained a favorable award and sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Brandenburg enforced the award, finding that the enforcement proceedings were unaffected by the Buyer's bankruptcy, because the declaration of enforceability of a foreign arbitral award is not an executory measure but rather a preliminary measure having no executory effect. The Oberlandesgericht further found that there were no grounds for refusal under Article V(2)(b) NYC. There was no violation of German public policy in this case, as it did not suffice for German substantive public policy to be violated that a German court, if it had decided the dispute, would have reached a different conclusion based on German mandatory law. According to the Oberlandesgericht, for there to be a violation of public policy, the conclusion reached by applying foreign law should contrast in such a manner with the fundamental principles of German law and principles of justice contained therein as to appear unacceptable from a domestic point of view. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=245&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Schleswig Date 24 June 1999 Case number 16 SchH 01/99 Applicable NYC Provisions V | V(2)(b) | V(1)(c) | V(1)(a) Source DIS Summary The Parties entered into a five-year contract containing a clause for arbitration at the International Chamber of Commerce (ICC). The Defendant terminated the contract and the Claimant, a successor to a State enterprise that had signed the arbitration agreement, obtained a favorable award from a sole ICC arbitrator. In the course of the arbitration, the ICC had dismissed the Defendant's challenge to the sole arbitrator for bias. The Claimant sought to enforce the award in Germany. The Oberlandesgericht (Higher Regional Court) Schleswig granted enforcement. It held that there were no grounds for non-enforcement under Article V(1)(a) NYC, as it was bound by the arbitrator's finding on legal and factual grounds that the Claimant was a successor to the signatory of the agreement. Nor were there grounds for non-enforcement under Article V(1)(c) NYC, as it was equally bound by the arbitrator's finding that the Claimant's claim for payment was covered by the arbitration agreement, and this argument could not be raised in enforcement proceedings. According to the Court, there had been no violation of due process justifying non-enforcement under Article V(1)(b) NYC or bias justifying non-enforcement under Article V(1)(d) NYC. Nor was there any violation of public policy under Article V(2)(b) NYC. It reasoned that the recognition of foreign awards is subject to a less stringent regime than domestic awards because there is a distinction between international and domestic public policy. The recognition of foreign arbitral award is to be denied only in instances of obvious and grave defects that affect fundamental legal principles. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=244&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, Court of Final Appeal, Hong Kong Special Administrative Region Date 09 February 1999 Parties Hebei Import & Export Corporation v. Polytek Engineering Company Limited Case number FACV 10/1998 Applicable NYC Provisions V | V(1) | V(1)(e) | V(2) | V(2)(b) Source [1999] 1 HKLRD 665; [1999] 2 HKCFAR 111 | http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary On March 29, 1996, an arbitral tribunal within the China International Economic and Trade Arbitration Commission rendered an award in favor of plaintiff-appellant, Hebei Import & Export Corporation (“Hebei”) and against defendant-appellee, Polytek Engineering Company (“Polytek”). Hebei obtained an order to enforce the award in Hong Kong on July 23, 1996. The Court of Appeal allowed Polytek’s appeal (based on Section 44 of the Arbitration Ordinance, which implements Article V NYC) to set aside the enforcement order on the grounds that (1) the Tribunal exhibited apparent bias; (2) this bias constituted a fundamental flaw in the arbitral procedure; and (3) it would be contrary to Hong Kong’s public policy to enforce an award that was the product of such a flawed proceeding. Hebei appealed. The Court of Final Appeal reversed the lower court's decision, finding that Polytek could have raised the issue of potential bias before the Tribunal but chose not to do so. As such, Polytek was estopped from now claiming that the Tribunal’s apparent bias violated Hong Kong public policy. The Court noted that refusing to enforce a Convention award requires a high burden of proof, unmet by Polytek in this case. reverses : see also :
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §55
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / c. Relationship with article V(1) / §45
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. International – transnational public policy / §14
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. The public policy exception under the Convention / §6
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §59
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §57
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. The public policy exception under the Convention / §5
- Hong Kong / 15 May 1997 / Hong Kong, High Court, In the Supreme Court of Hong Kong / Hebei Import & Export Corporation v. Polytek Engineering Company Limited / HCMP 2083/1996
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=494&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 13 January 1999 Case number 11 Sch 06/98 Applicable NYC Provisions V | V(2)(b) Source DIS Summary In Spring 1992, the Claimant negotiated a sales contract with Company X. During negotiations preceding the sale, the general manager of Company X allegedly received a copy of the Claimant's general conditions of sale, which contained an arbitration clause providing for arbitration at the International Chamber of Commerce (ICC). By confirmation of order in May 1992, the sale was concluded between the Claimant and the first Defendant, who is a general partner in the second Defendant. The Claimant allegedly enclosed its conditions with its confirmation of order. The Claimant then sold other goods to the first Defendant and attached its general conditions to the confirmations for these sales. A dispute arose between the parties when the Defendants alleged that the product was defective and refused to pay part of the sales price. The Claimant obtained a favorable ICC award for damages amounting to unpaid sale price, and sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) Dresden. The Oberlandesgericht Dresden granted enforcement, finding that no grounds for refusal under Article V(2)(b) NYC existed. Although it considered that German law prohibits an agreement for lump sum damages in general conditions of sale, in this case lump sum damages were permitted under the law applicable to the dispute, and were not so high as to be at odds with German public policy. The Oberlandesgericht reached the same conclusion with respect to the arbitral tribunal's decision on attorney's fees. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=243&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 01 December 1998 Parties Lenersan Poortman B.V. v. Salvador Martínez Mari S.L. Case number ATS 968/1998 Applicable NYC Provisions I | II | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4077&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 29 September 1998 Parties ETS Sebtigrains v. Armengol Hermanos S.A. Case number ATS 1436/1998 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | IV(2) | V | 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=4079&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. Court of Appeals, Second Circuit Date 02 September 1998 Parties Europcar Italia, S.p.A. v. Maiellano Tours, Inc. Case number 97-7224 Applicable NYC Provisions V | VI | V(2)(b) | V(1)(e) Languages English Summary Maiellano Tours, Inc. (“Maiellano”), an American travel agency, and Europcar Italia S.p.A. (“Europcar”), an Italian car rental business, entered into a service agreement which contained a clause providing for arbitration under rules known in the Italian legal system as “arbitrato irrituale in equità” (informal proceedings). A dispute arose and an arbitral tribunal rendered a monetary award in favor of Europcar. Europcar commenced an action in Italian courts to confirm the arbitration award and to obtain an order of payment. While litigation was underway in the Italian courts, Europcar filed an action in the Eastern District of New York seeking recognition and enforcement of the arbitral award pursuant to the NYC and Section 207 of the Federal Arbitration Act (“FAA”). The District Court entered judgment for Europcar. Maiellano appealed the decision, arguing that: (i) an award granted under the rules known as “arbitrato irrituale” does not give rise to a binding arbitral award which can be enforced under the NYC and that the parties did not intend to be legally bound by such a decision; (ii) that the award was based on a forged contract and was therefore contrary to United States public policy; and (iii) the District Court should have suspended the proceedings to await the outcome of the pending Italian litigation. The United States Court of Appeals for the Second Circuit vacated the decision of the lower court and remanded the case to the District Court to reconsider its decision not to adjourn the enforcement proceedings pending the outcome of the Italian appeal. The Court found that the arbitration award was binding upon the parties under Article V(1)(e) NYC, because awards made under arbitrato irrituale are contractually binding on the parties even if they are not automatically enforceable. The Court then rejected Maiellano’s argument that the enforcement of the award would be contrary to the public policy of the United States under Article V(2)(b) NYC, holding that the issue of whether the underlying contract was forged was a matter to be determined exclusively by the arbitrators. It considered that since Maiellano had failed to raise this claim before the arbitral tribunal, the issue was now forfeited. The Court finally held that that Article VI NYC gives discretion to a court to adjourn proceedings on the enforcement of the award when proceedings to set aside or suspend the award are ongoing before a competent authority of the country in which the award was made. The Court noted that a District Court must take into account the tension between expeditious resolution of disputes, on the one hand, and the possibility of conflicting results, on the other, when deciding on adjournment of enforcement proceedings. see also :
- VI / 2. ANALYSIS (VI) / d. The discretionary power of the courts to adjourn the decision on enforcement or order security / §20
- VI / 2. ANALYSIS (VI) / b. Various factors considered by courts / §33
- VI / 2. ANALYSIS (VI) / a. The absence of a standard / §26
- VI / 2. ANALYSIS (VI) / b. The application for the setting aside or suspension of an award must be made to a 'competent authority' / §14
- VI / 2. ANALYSIS (VI) / c. Whether there are any prevailing factors to be considered by courts / §44
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §57
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. Estoppel and waiver / §50
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1135&opac_view=6 Attachment (1)
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Country Germany Court Germany, Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court of Hamburg) Date 30 July 1998 Case number 6 Sch 3/98 Applicable NYC Provisions V | V(2)(b) | V(1)(b) | V(1)(c) | V(1)(d) Summary The Claimant sought enforcement of an award rendered in London. The Defendant maintained that there is no valid arbitration clause within the meaning of Article II NYC, that the award was vitiated by lack of oral hearing and the granting of post-award interest that had not been claimed. The Hanseatisches Oberlandesgericht (Higher Regional Court) Hamburg granted enforcement, holding that parties validly concluded agreement by exchange of telefaxes. It reasoned that there were no grounds for refusal under Article V(1)(b) NYC, as the Defendant had been duly informed of the proceedings and the arbitral tribunal had otherwise complied with the requirements of due process. The Court reasoned that arbitral rules provide that decision could be rendered without oral hearing, so there were no grounds for refusal under Article V(1)(d) NYC. An arbitral tribunal can, at its discretion, award interest and not exceed its authority in the sense of Article V(1)(c) NYC. The Court held that an award could be refused enforcement under Article V(2)(b) only where arbitration is vitiated by a grave fault that affects fundamentals of social and economic life. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=240&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. Court of Appeals, Eleventh Circuit Date 22 May 1998 Parties Industrial Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH Case number 94-2982, 94-2530 Applicable NYC Provisions I | V | I(1) | V(1)(d) | V(2)(b) Source online: http://www.ca11.uscourts.gov/ (official website of the U.S. Court of Appeals for the Eleventh Circuit) Languages English Summary Nitram, Inc. (“Nitram”) entered into a sale and purchase contract with Barnard and Burk Group, Inc., (“Barnard and Burk”), which in turn contracted with M.A.N. Gutehoffnungshütte GmbH (“MAN GHH”) to purchase equipment for the purpose of resale. The sale and purchase contract contained an arbitration clause providing for arbitration under the aegis of the American Arbitration Association (“AAA”) in Tampa. A dispute arose and an arbitral tribunal rendered an award in favor of MAN GHH and, in subsequent rulings, ordered Barnard and Burk to pay costs to MAN GHH. Barnard and Burk filed a motion to vacate the arbitral awards. The District Court denied the motion and confirmed the awards. Barnard and Burk appealed on the grounds that (i) the arbitrators had failed to conduct the arbitration proceedings in accordance with the arbitration clause; (ii) the arbitrators improperly admitted certain testimony and evidence and thus violated public policy, and (iii) the award was arbitrary and capricious. The United States Court of Appeals for the Eighth Circuit affirmed the District Court’s judgment confirming the award but vacated the order refusing to award prejudgment interest to MAN GHH. It held that the District Court had erred in holding that the proceedings were controlled by Chapter 1 of the Federal Arbitration Act (“FAA”), and instead found Chapter 2 of the FAA, relating to international arbitral proceedings, to be applicable. In so holding, the Court of Appeals held that pursuant to Article I(1) NYC, the NYC applied to awards “not considered as domestic awards in the State where their recognition and enforcement are sought”. It then interpreted Section 202 of the FAA to imply that arbitral awards that were not “entirely between citizens of the United States” were non-domestic for purposes of Article I(1) NYC. It held that the award before it was a non-domestic award, falling under the NYC. As to Barnard and Burk’s first argument, the Court of Appeals found that there was no violation of Article V(1)(d) NYC, as the admission of a report of a German technical institute on wrecks did not contravene the AAA Rules, and was therefore in accordance with the agreement of the parties. As to the second argument, it found that the admission of certain testimony did not violate public policy within the meaning of Article V(2)(b) NYC, as an award could only be rejected enforcement if it violated “explicit public policy that is well-defined and dominant”. In rejecting the third argument, the Court of Appeals found that an award being “arbitrary and capricious” was not one of the exclusive grounds for denying enforcement under Article V NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1123&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 02 April 1998 Parties Compagnie française d'études et de construction Technip (Technip) v. Entreprise nationale des engrais et des produits phytosanitaires (Asmidal) Case number 97/6929 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(2) | V(2)(b) | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary An ICC award was rendered in Zurich on 8 July 1996 in favor of an Algerian Company (ASMIDAL). In an order issued on 6 January 1997, the President of the Tribunal de Grande Instance de Paris allowed enforcement of the award in France. Appealing this decision, the losing party (Technip) argued that the enforcement order should be overturned pursuant to Article 1502 of the Code of Civil procedure given that (i) the arbitral tribunal had wrongly upheld jurisdiction, (ii) the arbitral tribunal had not properly been constituted, (iii) the arbitral tribunal had not complied with the mandate conferred upon it, (iv) due process had been violated, and (v) recognition and enforcement was contrary to international public policy. In response, ASMIDAL claimed that only the provisions of the NYC should be applied. The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order and dismissed the action. It first reasoned that the procedure pertaining to the enforcement of the award in France is subject to the conditions set forth by both the NYC, ratified by France and Switzerland, and French rules on enforcement of awards. It added that the control of the regularity of an award by French Courts in order to allow its integration in French legal order may be based on either the NYC or French law (notably, Articles 1498 and 1502 of the Code of Civil Procedure); while noting that pursuant to Article VII NYC, the provisions of French law which are more favorable to the enforcement of the award must prevail. It then dismissed each claim for refusing enforcement of the award, after noting that the provisions of French law invoked (Article 1502 of the Code of Civil Procedure) are similar to that of the NYC. In this respect, the Cour d'appel de Paris held that (i) Article V(1)(a) NYC and Article 1502 1° (on whether the arbitral tribunal ruled without an arbitration agreement or on the basis of an arbitration agreement which was null and void) address similar situations, (ii) Article V(1)(b) NYC and Article 1502 4° (violation of due process) have the same scope, except that the latter refers to the principles of French law in an international context, (iii) Article V(1)(c) NYC and Article 1502 3° (as to the obligation of the arbitral tribunal to comply with the mandate conferred upon it) have the same scope, and (iv) Article 1502 includes the same provisions as Article V(1)(d) NYC (regarding the constitution of the arbitral tribunal). Lastly, it ruled that Article 1502 5° (as to the violation of international public policy) is in "perfect harmony" with Article V(2)(b) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=153&opac_view=6 Attachment (1)
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Country 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 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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