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Germany / 18 September 2003 / Oberlandesgericht Celle / 8 Sch 12/02
Country Germany Court Germany, Oberlandesgericht Celle Date 18 September 2003 Case number 8 Sch 12/02 Applicable NYC Provisions VII | V | II | VII(1) | V(1)(a) | II(1) Source DIS Summary The Parties concluded a sales contract. The Defendant allegedly refused to pay part of contract price and the Claimant commenced arbitration in London. The London Commercial Court appointed a sole arbitrator after the parties failed to reach an agreement concerning the constitution of the tribunal. The arbitrator assumed jurisdiction over the dispute based on the INTERORE general conditions of contract, which contained an arbitration clause. The Claimant obtained a favorable award and sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Celle denied enforcement, finding no valid arbitration agreement within the meaning of Article II of the NYC, as the parties had neither signed nor mentioned the INTERORE conditions when concluding the sales contract at issue. The writing requirement under the NYC was not superseded by the requirements under German law pursuant to Article VII(1) NYC, since German law requires at least that the Claimant make a written reference to its general conditions when concluding a contract. The Court reasoned that the existence and formal validity of the arbitration agreement should to be assessed independently by the enforcement court when examining the grounds for refusal at Article V(1)(a) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=268&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Schleswig Date 15 July 2003 Case number 16 Sch 01/03 Applicable NYC Provisions VII | VII(1) Source DIS Summary The Parties concluded two sales contracts which each contained a clause for arbitration of all disputes at the International Commercial Arbitral Tribunal at the Chamber of Commerce and Industry of Ukraine. A dispute arose concerning the Buyer's performance. The Seller initiated arbitration proceedings and the Buyer did not appear. The Seller obbtained a favorable award and sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) Schleswig. The Oberlandesgericht Schleswig granted enforcement, finding that the Seller had met the formal requirements for seeking enforcement under German law, which applied on the basis of the most-favorable-right provision at Article VII(1) NYC. It considered that there were no grounds for refusal to be examined ex officio. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=266&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 12 December 2002 Case number 4 Z Sch 16/02 Applicable NYC Provisions VII | II | VII(1) | II(2) | II(1) Summary The Parties entered into negotiations in September 1999 for the export of products from Yugoslavia to Germany. The Claimant allegedly informed the Defendant by telephone that its general conditions provided for arbitration before the Foreign Trade Court of Arbitration (at the Yugloslav Chamber of Commerce). Further negotiations followed and the Claimant made three deliveries. The Claimant drew up the contracts by photocopying its contractual details onto a blank sheet bearing the Defendant's letterhead. The letter contained the Defendant's signature and seal as well as the Claimant's own signature and seal. The Contracts were faxed to the Defendant, who neither confirmed nor contested them. A dispute arose when the Defendant refused to pay the purchase price for goods that were allegedly unsaleable. The Claimant initiated arbitration in Belgrade, the Defendant failed to appear and an award was rendered in the Claimant's favor. The Bayerisches Oberstes Landesgericht (Higher Regional Court Bavaria) denied enforcement, finding that the requirements under Article II(2) NYC had been not fulfilled as there was no "agreement in writing" as neither the requirement of "signature" nor "exchange of letters or telegrams" had been fulfilled. According to the Court, the essential factor in exchange of written statements under the NYC is mutuality, which was lacking in the faxed contracts. It considered that in principle, German law should apply to this question as a result of the the most-favored-right rule under Article VII(1) NYC. However, German law requirements and requirements under the NYC were equivalent. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=264&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 04 December 2002 Parties Société American Bureau of Shipping (ABS) v. Copropriété Maritime Jules Verne et al Case number 2001/17293 Applicable NYC Provisions II | V | V(1) | V(1)(a) | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary A US company (ABS) proceeded in 1992 to the classification of a ship (Tag Heuer) at the request of its constructor (Tencara). ABS' Specific Conditions, containing an arbitration agreement (which provided for arbitration in New York), were attached to the classification request. Tencara proceeded with payment and each invoice referred to ABS' General Conditions containing the arbitration agreement. The ship was then damaged. At the request of the insurance companies, an expert determination was ordered by the Tribunal de Grande Instance de Paris (First Instance Court of Paris), which held ABS partially responsible. The owner of the ship (the Jules Vernes co-ownership) and the insurance companies commenced proceedings before the Tribunal de Commerce de Paris (Commercial Court of Paris), which found that it had jurisdiction over the dispute. In the meantime, ABS initiated arbitral proceedings in New York against the Jules Vernes co-ownership and the insurance company of Tag Heuer, after a decision of the Federal Court of Appeal declared that they were bound by the arbitration agreement. ABS challenged the decision of the Tribunal de Commerce de Paris and of the Cour d'appel de Paris (Paris Court of Appeal) which had upheld that French Courts had jurisdiction to hear the dispute. The Cour de Cassation (Supreme Court) reversed the decision of the Cour d'appel de Paris on the ground that it had failed to establish that the arbitration agreement was manifestly null and void, which constitutes the only exception to the principle according to which arbitrators have jurisdiction to decide on their own jurisdiction and to rule on the existence, validity and applicability of an arbitration agreement. The case was remanded before the Cour d'appel de Paris. ABS invoked the principle of Compétence-Compétence and argued that there was no need to refer to the NYC. The Jules Verne co-ownership argued that article II NYC should prevail over Article 1458 of the Code of Civil Procedure and that the conditions provided under Article II NYC were not met since the arbitration arbitration was not applicable to it. It also claimed that there was a risk of denial of justice given that, according to the US Federal Arbitration Act, the arbitrators cannot rule on their own jurisdiction. The Cour d'appel de Paris reasoned that Article VII NYC reserves the right to apply domestic law in situations where it is more favorable for the recognition and validity of the arbitration agreement and that this provision necessarily applies in the context of Article II NYC given the link between Article II NYC and Article V(1)(a) on the validity of an arbitration agreement. It also explained that the principle of validity of international arbitration agreements and the principle according to which arbitrators have jurisdiction to decide on their own jurisdiction are material rules of French international arbitration law which, as opposed to Articles II and V NYC on the formal requirement of an arbitration agreement, establish the validity of an arbitration agreement irrespective of any reference to domestic law. It further noted that the principle according to which arbitrators have priority to rule on the validity of an arbitration agreement is not provided under Article II NYC which only requires the court of a Contracting State to refer the parties to arbitration, unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. On the basis of these principles of French law, the Cour d'appel de Paris held that a French court may not proceed to an in-depth analysis of the arbitration agreement, the only exception being that the court may review the arbitration agreement in order to determine whether it is manifestly void or inapplicable. In the case at hand, it held that, in light of the complex facts of the case, the arbitration agreement could not be considered as manifestly void or inapplicable and therefore it found that it did not have jurisdiction over the dispute and referred the parties to arbitration. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=163&opac_view=6 Attachment (1)
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Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 22 May 2002 Parties Stephen and Mary B**** Foundation Inc. v. A**** Aketiengesellschaft, H**** GmbH, André H****, Stefan S**** Case number 3Ob18/02x Applicable NYC Provisions III | VII | VII(1) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3888&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Rostock Date 22 November 2001 Case number 1 Sch 03/00 Applicable NYC Provisions VII | V | II | VII(1) | V(2)(b) | II(1) Source DIS Summary The Parties negotiated a sales contract in 1997. The Claimant allegedly sent a fax to the Defendant confirming the sales agreement and mentioning “arbitration to be subject to LME (London Metal Exchange) rules and regulations”. Then, the Claimant allegedly sent a fax confirming further sales and containing clause reading "arbitration by LME under English law normal force majeure terms to rule." The original letter was allegedly sent to the Defendant by mail. The Defendant refused to accept or pay for goods shipped by the Claimant. The Claimant commenced arbitration at the LME and obtained favorable award. The award was later declared enforceable by the High Court in London, which also denied the Defendant's motion to set aside. The Claimant sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Rostock denied enforcement, finding that the Claimant had failed to comply with the formal requirement under Article IV(1) NYC to provide the original arbitration agreement or certified copy thereof. In its reasoning, the Claimant could not rely on less stringent requirements of German law - according to which the enforcement of domestic award does not require supplying an arbitration agreement - because international treaties supersede German law on questions related to foreign awards pursuant to Section 1064(III) of the German Code of Civil Procedure. In any event, the more-favorable-right rule under Article VII(1) NYC does not concern formal requirements under the NYC. The Court further considered that there existed grounds for non-enforcement under Article V(1)(a) NYC, since there was no valid arbitration agreement between the Parties within the meaning of Article II NYC. Even if the more-favorable-right rule applied as a matter of principle, in the case at hand, the requirements under German law had not been met. The Court further considered that the enforcement of the award would violate German public policy pursuant to Article V(2)(b) because it would entail that the Defendant had not submitted to the judgment of the arbitral tribunal by its free will. Finally, the Court found that the Claimant was not estopped from raising grounds for non-enforcement because it did not challenge the award for lack of jurisdiction before the juge d'appui. In this case, the tribunal had assumed jurisdiction in an arbitrary manner and without any justification in the parties' agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=258&opac_view=6 Attachment (1)
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Country Burkina Faso | OHADA Court Burkina Faso, Tribunal de Grande Instance de Ouagadougou Date 13 June 2001 Parties Société des Ciments d'Abidjan (SCA) v Société Burkinabè des Ciments et Matériaux (CIMAT) Applicable NYC Provisions VII | VI | V | III Source OHADATA J-03-83
Languages English Summary An ICC award was rendered in Paris on 17 August 1998 in favor of Société des Ciments d'Abidjan (SCA). The award was subsequently declared enforceable in France. SCA then requested the enforcement of the arbitral award in Burkina Faso. The losing Party (CIMAT) opposed enforcement on various grounds, inter alia, (i) that the Tribunal de Grande Instance de Ouagadougou (First Instance Court of Ouagadougou) lacked jurisdiction to rule on the matter in accordance with the France-Burkina Faso Convention on Judicial Cooperation whose provisions prevail over the NYC pursuant to Article VII NYC, (ii) that there was a situation of lis pendens since it initiated proceeding before the Tribunal de Grande Instance de Ouagadougou which was still pending before the Cour d'appel d'Abidjan (Abidjan Court of Appeal), and (iii) that the arbitral award violated Burkina public policy given that the Claimant had not complied with the Burkina procedural rules in breach of Article III NYC. It also requested an adjournment of the decision on the enforcement of the award in accordance with Article VI NYC until the French Cour de cassation (Supreme Court) rendered its decision on the setting aside of the award. The Tribunal de Grande Instance de Ouagadougou granted enforcement of the arbitral award in Burkina Faso. It first dismissed CIMAT's objection on jurisdiction which was raised at a later stage of the proceeding. It then reasoned that since Burkina Faso ratified the NYC on 23 March 1987, the NYC is applicable to the case at hand. It recalled the grounds for refusing enforcement of an arbitral award listed under Article V NYC and held that a situation of lis pendens does not constitute a ground for refusing enforcement. As to CIMAT's argument that the arbitral award violates Burkina public policy, it stated that a violation of public policy requires the breach of a general principle of law considered fundamental by the State. In the present case, the Tribunal de Grande Instance de Ouagadougou concluded that the arbitral award was not contrary to a fundamental principle of law. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=542&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 17 October 2000 Parties Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar (ASECNA) v. M. Issakha N'Doye Case number 98-11.776 Applicable NYC Provisions V | V(1) | V(1)(e) | VII | VII(1) Source Bulletin 2000 I N° 243 p. 160, Original decision obtained from the registry of the Cour de cassation
Summary An award was rendered in Dakar in a dispute between the ASECNA (Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar) and an individual regarding his dismissal. In an order issued on 8 July 1996, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. ASECNA challenged the decision of the Cour d'appel de Paris (Paris Court of Appeal) of 16 October 1997 which had upheld the enforcement order on the grounds that the award in dispute was a domestic award (as opposed to an international award) and that, therefore, the suspensive effect of the action to set aside the award initiated in Senegal precluded the enforcement of the award abroad in accordance with Article V(1)(e) NYC. The Cour de cassation (Supreme Court) affirmed the decision of the Cour d'appel de Paris. It reasoned that Articles 1498 et seq. of the Code of Civil Procedure on the recognition and enforcement of awards apply both to international awards and awards rendered abroad, irrespective of whether these awards are considered, in the country where they were rendered, as domestic or international awards. The Cour de Cassation then held that pursuant to the NYC (to which the French-Senegal Convention refers) and Article VII NYC, French international arbitration rules, which are more favorable to the enforcement of arbitral awards, must apply. Given that Article 1502 of the Code of Civil Procedure does not list as a ground for refusing enforcement the existence of an action which has a suspensive effect on the enforceability of the award, the Cour de cassation dismissed the individual's claim. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=159&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 11 August 2000 Case number 4 Z Sch 05/00 Applicable NYC Provisions VII | IV | IV(2) | VII(1) Source DIS
Summary The Parties concluded a construction contract and by additional agreement agreed to refer disputes to arbitration in Moscow. The Claimant obtained a favorable award and sought enforcement in Germany. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) granted enforcement, finding that the Claimant had complied with the formal requirements under German law (which applied pursuant to the most-favorable-right provision under Article VII(1) NYC), which requires that the Claimant supply the award or a certified copy thereof together with the request for enforcement. Under German law, the arbitration agreement and the translations mentioned in Article IV(2) NYC need not be supplied. see also :
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / b. Documents specified under article IV(2) / §20
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / a. Documents specified under article IV(1) / §17
- IV / 2. ANALYSIS (IV) / A. The requirement that the applicant provide the arbitration agreement 'referred to in article II' / §66
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=252&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Rostock Date 28 October 1999 Case number 1 Sch 03/99 Applicable NYC Provisions VII | V | VII(1) | V(1)(e) Source DIS Summary The Claimant sought to enforce in Germany an award rendered by the Maritime Arbitration Commission in Moscow. In the meantime, the award was set aside by the Moscow City Court and Moscow Court of Appeal. The Oberlandesgericht (Higher Regional Court) Rostock held that that German law does not condition the admissibility of a request for recognition on the submission of an arbitration clause, and so this more favorable law applied pursuant to Article VII(1) NYC. The Oberlandesgericht nevertheless denied recognition pursuant to Article V(1)(e) NYC, holding that a declaration of enforcement requires that the foreign award has become binding according to the law applicable to it, and that there are no further means of appeal against it before appellate arbitral tribunals or State courts. Here, the award was no longer "binding" because it had been set aside in its State of rendition. Even though the Russian court decisions were subject to further appeal, this was irrrelevant according to the second alternative under Article V(1)(e) NYC (..."or suspended"). Decision reversed by Bundesgerichtshof (Federal Supreme Court) on 22 February 2001 (see link below). affirmed by : affirms : see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / c. Domestic law more favourable than article V(1)(e) / §47
- IV / 2. ANALYSIS (IV) / ARTICLE IV(1)(a) / c. Whether certification must be of an authenticated original award / §60
- IV / 2. ANALYSIS (IV) / ARTICLE IV(1)(a) / b. Competent authority / §53
- IV / 2. ANALYSIS (IV) / ARTICLE IV(1)(a) / b. Competent authority / §54
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=247&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 22 October 1999 Parties Martin Spier v. Calzaturificio Tecnica, S.p.A. Case number 86 CIV. 3447 Applicable NYC Provisions I | V | VII | I(1) | V(1)(e) Languages English Summary A United States citizen, Martin Spier, petitioned for enforcement of an award rendered in Italy, following a dispute under a contract with an Italian company, Calzaturificio Tecnica S.p.A (“Tecnica”). The contract contained a provision providing for arbitration in Italy by a panel of three arbitrators. Tecnica challenged the validity of the award in the Italian courts. Spier did not appear in the Italian court proceedings and instead filed a petition in the United States District Court for the Southern District of New York for enforcement of the award. The District Court granted adjournment pending a decision on the arbitral award by the Italian courts. The Italian courts nullified the award and Spier resumed his petition before the District Court to enforce the arbitral award, arguing that the Court should confirm the award notwithstanding the decision of the Italian courts. The United States District Court for the Southern District of New York denied Spier’s renewed petition to enforce the arbitral award. It found that where the NYC was applicable pursuant to Article I(1) NYC, as in the case before it, the grounds for resisting the award were limited to those found in Article V NYC. The District Court then held that pursuant to Article V(1)(e) NYC, a court could refuse enforcement of an award that had been set aside or suspended by a competent authority of the country in which, or under the law of which, the award had been made. It held that Spier’s reference to the permissive language of Article V (“may”) did not assist his case, since he had not shown adequate reason for refusing to recognize the judgments of the Italian courts. The Court then held that Spier could not introduce the domestic law of the United States through the operation of Article VII NYC, as there was no basis for applying that law to the dispute between the parties. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1133&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 d'appel de Paris (Court of Appeal of Paris) Date 23 October 1997 Parties Société Inter-Arab Investment Guarantee Corporation (I.A.I.G.C.) v. Société Banque arabe et internationale d'investissement (B.A.I.I.) Case number 96/80232 Applicable NYC Provisions III | VI | VII Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary On 17 November 1984, the International and Arab Investment Bank (BAII) granted a loan to the Baghdad Sewerage Board (BSB), an Iraqi public entity. It subsequently subscribed an insurance agreement with the Inter-Arab Investment Guarantee International Corporation (IAIGC), garanteeing part of the loss if may suffer in case of a default of payment by BSB. When BSB defaulted, IAIGC paid at first but later refused when BAII did not comply with the Arab nationality requirement. BAII then filed a Request for arbitration and an award was rendered in Jordan in its favor. In an order issued on 4 July 1995, 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, IAIGC argued that (i) there was no award under the meaning of Article 1498 of the Code of Civil Procedure, (ii) due process had been violated (article 1502 4°), (iii) the arbitral tribunal ruled without an arbitration agreement (Article 1502 1°) and without complying with the mandate conferred upon it (Article 1502 3°), and (iv) the recognition and enforcement of the award was contrary to international public policy (Article 1502 5°). In addition, IAIGC sought a stay of the proceedings pending the action to set aside the award which was initiated before Jordan Courts in accordance with Article VI NYC. The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order and dismissed the appeal. It reasoned that the NYC applied (as it had been ratified by Koweit, Jordan and France) and that according to Article III and VII NYC, the court in charge of the enforcement of the award may not refuse enforcement when its domestic law allows it. It then held that the requirements for enforcement of an award under French law were satisfied in the case at hand and that the fact that the award had not been approved by Jordan Courts (as provided by Jordan law) had no bearing on the enforcement procedure. It then dismissed IAIGC's claims based on Article 1502 of the Code of Civil Procedure. As to the request for stay of the proceedings, the Cour d'appel de Paris reasoned that the existence of an action to set aside the award in the country where the award was rendered is not listed as a ground to refuse enforcement of an award in France under Article 1502 of the Code of Civil Procedure and held that it may not refuse enforcement for any ground other than those listed under the said provision. It then ruled that it would not be appropriate to stay proceedings. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=150&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 14 January 1997 Parties République arabe d'Egypte v. Société Chromalloy Aero Services Case number 95/23025 Applicable NYC Provisions V | V(1) | V(1)(e) | VI | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary On 16 June 1988, the Arab Republic of Egypt and a US company (Chromalloy) entered into a contract for the supply of material, services and technical assistance for the management and maintenance of military aircraft. Following the termination of this agreement by the Arab Republic of Egypt, Chromalloy initiated arbitration proceedings as provided by the parties in the contract. An award was rendered on 24 August 1994, in Cairo in favor of Chromalloy. In an order issued on 4 May 1995, the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France, whereas the enforcement of the award had been stayed and eventually set aside by the Cairo Court of Appeal. The Arab Republic of Egypt filed an appeal against the enforcement order. It contended that (i) the enforcement order violated the provisions of both the France-Egypt Convention on Judicial Cooperation of 15 March 1982 and the NYC, (ii) the arbitral tribunal did not comply with the mandate conferred upon it (Article 1502 3° of the Code of Civil Procedure), violated due process (Article 1502 4°) and that the recognition and enforcement of the award was contrary to international public policy (Article 1502 5°). The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order and dismissed the appeal. It first noted that the France-Egypt Convention on Judicial Cooperation provides that the recognition and enforcement of awards rendered in these countries shall be granted in accordance with the provisions of the NYC. In light of this general reference to the NYC, it reasoned that the Contracting States have implicitly consented to the exception under Article VII NYC which provides that the provisions of the NYC may not deprive a party of any right it may have to avail itself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. It then held that French Courts may only refuse enforcement in the limited number of situations listed at Article 1502 of the Code of Civil Procedure, which does not include the situation set forth in Article V NYC invoked by the Arab Republic of Egypt, and that given that the award rendered in Egypt was an international award which, by definition, is not anchored in the legal order of that State, its existence was not affected by its setting aside and therefore the recognition and enforcement of this award in France was not contrary to international public policy. The Cour d'appel de Paris then dismissed the other claims based on Article 1502 of the Code of Civil Procedure. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=147&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 31 October 1996 Parties X v. Fédération équestre internationale Case number 4C. 44/1 996 Applicable NYC Provisions II | II(3) | VII | VII(1) Source Original decision obtained from the registry of the Tribunal Fédéral
Languages English Summary An equestrian was suspended by the International Equestrian Federation (IEF) for illegal drug use. He filed an action before the Tribunal de première instance of Lausanne (Court of First Instance) to annul the suspension. The IEF objected to the jurisdiction of the Tribunal of Lausanne based on an arbitration agreement providing for such disputes to be resolved before the Court of Arbitration for Sport (CAS). The Tribunal of Lausanne subsequently referred the parties to arbitration. The equestrian lodged a reform appeal (recours en réforme). The Tribunal Fédéral (Federal Tribunal) affirmed the decision of the Tribunal of Lausanne. It considered that the NYC did not apply to the present case because the seat of the arbitral tribunal would be in Switzerland. It added that had the NYC been applicable, the Swiss Private International Law would still apply to determine the validity of the arbitration agreement because Article VII(1) NYC allows the application of a more favorable law. The Tribunal Fédéral analyzed the validity of the arbitration agreement under the Swiss Private International Law Act and held the arbitration agreement to be valid. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=912&opac_view=6 Attachment (2)
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Country United States Court United States, U.S. District Court, District of Columbia Date 31 July 1996 Parties Chromalloy Aeroservices v. Arab Republic of Egypt Case number 94-2339 Applicable NYC Provisions VII | V | IV | VII(1) | V(1)(e) Languages English Summary Chromalloy Aeroservices (“Chromalloy”), an American corporation, entered into a military procurement contract with the Air Force of the Arab Republic of Egypt (“Egypt”) to provide parts, maintenance, and repair for helicopters. A dispute arose and Chromalloy commenced arbitration proceedings on the basis of the arbitration clause in the contract. An arbitral tribunal found for Chromalloy. Egypt filed an appeal with the Cairo Court of Appeals, seeking nullification of the award, and filed a motion with the United States District Court for the District of Columbia to adjourn Chromalloy’s petition to enforce the award. The Cairo Court of Appeals suspended the award and Egypt filed a motion in the United States filed a motion in the District Court to dismiss Chromalloy’s petition to enforce the award. Subsequently, the Cairo Court of Appeals issued an order nullifying the award. The District Court granted Chromalloy’s petition to enforce the arbitration award and rejected Egypt’s motion to dismiss. After satisfying itself that Chromalloy had complied with the formal requirements of Article IV NYC, the District Court noted that under Article V(1)(e) NYC it had discretion to decline to enforce the award that “has ... been set aside ... by a competent authority of the country in which, or under the law of which, that award was made”. It further noted that while Article V NYC provides a discretionary standard, Article VII(1) NYC requires that “the provisions of the present Convention shall not ... deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law ... of the count[r]y where such award is sought to be relied upon”. The District Court thus concluded that it had to consider Chromalloy’s claims under the applicable U.S. law and found that the arbitral award was proper as a matter of U.S. law. It further found that the arbitration agreement between Egypt and Chromalloy precluded an appeal to the Egyptian courts. It concluded that the decision of the Cairo Court of Appeals nullifying the award did not have res judicata effect in the United States. Lastly, it found that recognizing the decision of the Egyptian court would violate United States public policy in favor of final and binding arbitration of commercial disputes. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1139&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 Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 08 March 1995 Parties N/A Case number 08/03/1995 Applicable NYC Provisions VII Source Registry of the Court
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4073&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) Date 06 July 1994 Case number 20 U 162/93 Applicable NYC Provisions VII | VII(1) Source OLG Hamm Summary The Parties concluded a contract containing a clause referring all disputes to arbitration at the Foreign Trade Arbitration Court in Belgrade. The Claimant obtained a favorable award, which was granted enforcement in Germany at First Instance. The Defendant appealed. The Oberlandesgericht (Higher Regional Court) Hamm dismissed appeal, finding the request for enforcement to be well-founded. It considered that it was irrelevant that Yugoslavia (where award was rendered) no longer existed as a State. In this case, an arbitration clause was still in existence because it was part of a contract governed by private law, and the enforceability of the arbitral award could not depend on whether the State, in which one of the Parties has a seat, still existed in its earlier form. The Court considered that the Claimant had met the formal conditions for enforcement under German law, which applies in virtue of the more-favorable-right provision at Article VII(1) NYC. No grounds for non-enforcement had been proven under Article V(1) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=235&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 23 March 1994 Parties Société Hilmarton Ltd v. Société Omnium de traitement et de valorisation (OTV) Case number 92-15.137 Applicable NYC Provisions V | V(1) | V(1)(e) | VII | VII(1) Source Bulletin 1994 I N° 104 p. 79, Original decision obtained from the registry of the Cour de cassation
Summary A French company (Omnium de Traitement et de Valorisation - OTV) entrusted an English company (Hilmarton) with the task of providing advise and coordination for a bid to obtain and perform a contract for works in Algeria. Hilmarton relied on the International Chamber of Commerce (ICC) arbitration agreement in order to obtain payment of the remaining balance of its fees. The award rendered in Geneva on 19 August 1988 dismissed this claim. The award was declared enforceable in France even though it had been set aside in Switzerland. Hilmarton challenged the decision of the Cour d'appel de Paris (Paris Court of Appeal) which upheld the enforcement order. It contended that, pursuant to Article V(1)(e) NYC, the recognition and enforcement should have been refused since it has been set aside in Switzerland. It argued further that the Cour d'appel de Paris also violated Articles 1498 and 1502 5° of the Code of Civil Procedure by granting effect to an award which had no legal existence since it had been set aside. The Cour de cassation (Supreme Court) affirmed the decision of the Cour d'appel de Paris and dismissed the action. Pursuant to Article VII NYC, it found that the Cour d'appel de Paris rightly held that OTV could avail itself of French rules pertaining to the recognition and enforcement of foreign awards in international arbitration and notably Article 1502 of the Code of Civil Procedure, which does not include the same ground for refusal of recognition and enforcement of awards as set forth in Article V(1)(e) NYC. The Cour de cassation added that the award rendered in Switzerland was an international award which was not integrated into the legal order of that State and therefore continues to exist notwithstanding the notion that it had been set aside and its recognition in France was not contrary to international public policy. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=140&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 24 February 1994 Parties Ministère tunisien de l'Equipement v. Société Bec Frères and Société Grands Travaux d'Afrique Case number 92.23638 & 92.23639 Applicable NYC Provisions V | V(1) | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary In response to the Ministry of Equipment of the Republic of Tunisia's two calls for tender regarding the construction of two road segments, a French company (Bec Frères) and a Tunisian company (Grands Travaux d'Afrique) - which had formed a group of companies for the purpose of conducting the works jointly - submitted a joint bid for each segments. The Ministry awarded the group both contracts and entered into two agreements with the group, which contained an arbitration agreement. Difficulties arose between the parties during the course of the construction works, which resulted in the termination of the two agreements. Arbitration proceedings were initiated and awards were rendered on 8 February 1990 and 13 September 1990 in favor of the group. In two orders issued on 15 April 1991, the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the two awards in France. Appealing these decisions, the Ministry relied on (i) the jurisdictional immunity of the State, (ii) the administrative nature of the contracts and the domestic nature of the awards subject to Tunisian law, (iii) the res judicata effect of decisions rendered by Tunisian courts which annulled the arbitration agreement, and (iv) Article V(1) NYC. In addition, it contented that the arbitral tribunal had ruled upon the matter without an arbitration agreement or on the basis of a void and lapsed agreement (Article 1502 1° of the Code of Civil Procedure), the arbitral tribunal was not properly constituted (Article 1502 2°) and due process was violated (Article 1502 3°). The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement orders and dismissed the appeal. It first reasoned that the underlying awards were international awards since the transaction entailed a cross-border transfer of material, a transfer of know-how and a cross-border payment. Given that the Ministry of Equipment relied on Article V(1) NYC and Article 1502 of the Code of Civil Procedure, the Cour d'appel de Paris noted that, pursuant to Article VII NYC (ratified by both France and Tunisia), the provisions of the NYC do not deprive either party of the right to avail itself of an award in the manner and to the extent allowed by the law or Treaties of the country where such award is sought to be relied upon. Consequently, it held that a French court cannot refuse enforcement when its domestic law would allow it and must, ex officio, ascertain whether this is the case. It thus decided to rule in light of the provisions of Article 1502 of the Code of Civil Procedure and, on this basis, rejected each claim. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=139&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 10 March 1993 Parties Société Polish Ocean Line v. Société Jolasry Case number 91-16.041 Applicable NYC Provisions V | V(1) | V(1)(e) | VII | VII(1) Source Bulletin 1993 I N° 99 p. 66, Original decision obtained from the registry of the Cour de cassation
Summary On 13 August 1988, a Polish company (Polish Ocean Line - POL) entered into a representation agreement with a French company (Jolasry) containing an arbitration agreement. An arbitral award was rendered in Gdansk on 17 March 1990 in favor of Jolasry. On 12 April 1990, POL commenced an action to set aside the award before the Economic Court of Gdansk, which suspended the enforcement of the award on 22 May 1990. In the meantime, the award was declared enforceable in France on 30 April 1990. POL challenged the decision of the Cour d'appel de Douai (Douai Court of Appeal) dated 18 April 1991 which upheld the enforcement order on the ground that, in light of the pending action in Poland and the decision rendered by the Court of Gdansk, the refusal to suspend enforcement of the award in France was contrary to Articles 1498 and 1502 of the Code of Civil Procedure. The Cour de cassation (Supreme Court) affirmed the decision of the Cour d'appel de Douai and dismissed the action. It reasoned that Article VII NYC provides that the provisions of the NYC (to which France and Poland are parties) may not deprive a party of any right to avail itself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. It then held that French courts may only refuse enforcement in the limited number of situations listed in Article 1502 of the Code of Civil Procedure, which does not include the ground set forth in Article V(1)(e) NYC (i.e. where the award is either set aside or suspended in the country where it was rendered). It thus concluded that the Cour d'appel de Douai rightly found that the action to set aside the award in Poland and the suspension of enforcement of the award obtained in Poland could not justify a refusal to enforce the award in France. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=136&opac_view=6 Attachment (1)
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