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France / 17 October 2000 / France, Cour de cassation / Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar (ASECNA) v. M. Issakha N'Doye / 98-11.776
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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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 Germany Court Germany, Oberlandesgericht Köln (Higher Regional of Köln) Date 16 December 1992 Case number 16 W 43/92 Applicable NYC Provisions II | VII | II(2) | VII(1) | II(1) Summary The Claimant sought the enforcement of an arbitral award obtained on the basis of the General Conditions of Sale contained in the Parties' contract, which expressly referred to the ECE 188 standard contract containing an ICC arbitration clause. The Claimant had sent a confirmation order to the Defendant, which contained the General Conditions but not the ECE contract. Enforcement was refused at First Instance on the grounds that there was no valid agreement in accordance with Article II(2) NYC. The Oberlandesgericht (Higher Regional Court) Cologne reversed the First Instance decision and granted enforcement, holding that an arbitration agreement may be tacitly concluded between merchants under German law, which applies on the basis of the more-favorable-right rule under Article VII(1) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=233&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 19 December 1991 Parties Société Hilmarton Ldt v. Société Omnium de traitement et de valorisation (OTV) Case number 90-16778 Applicable NYC Provisions V | V(1) | V(1)(e) | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
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 initiated an arbitration pursuant to 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. In an order issued on 27 February 1990, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed the enforcement of the award in France, even though it had been set aside in Switzerland. Appealing this decision, Hilmarton argued that the recognition and enforcement of an award in France set aside in the country where it was rendered is contrary to international public policy under Article 1502 of the Code of Civil Procedure and the NYC. The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order and dismissed the appeal. It reasoned that, according to Article VII NYC, 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 thus ruled that a court may not refuse to enforce an award when its domestic law would allow it and should disregard the provision Article V(1)(e) NYC where the domestic law of the country where enforcement is sought would allow it. It then noted that the annulment of an award in the country where it was rendered does not constitute a ground for refusing enforcement listed under Article 1502 of the Code of Civil Procedure. As a result, the Cour d'appel de Paris held that, pursuant to Article VII NYC, OTV is entitled to avail itself of French rules on international arbitration in order to request the enforcement of the award in France and that, given that French law on international arbitration does not require French courts to take into consideration the decision to set aside the award in a foreign legal order, the incorporation in the French legal order of an international award set aside abroad is not contrary to international public policy under Article 1502 5° of the Code of Civil Procedure. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=134&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 26 February 1991 Case number XI ZR 349/89 Applicable NYC Provisions VII | VII(1) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary The Applicant obtained a favorable arbitral award in the Netherlands, granting its payment claims against three different parties (“Respondents”) in relation to commodity futures for slaughter pigs. The Applicant then sought enforcement of the award in Germany under Section 1044 of the German Civil Procedure Code. The Respondents opposed the action, alleging that German exchange law did not permit the enforcement of the obligations at issue and that the arbitral tribunal had not been impartial. The Landgericht (Regional Court) Osnabrück denied enforcement and the Applicant unsuccessfully appealed to the Oberlandesgericht (Higher Regional Court) Oldenburg. The Applicant appealed the decision to the Bundesgerichtshof (Federal Supreme Court), which admitted the appeal with respect to the third Respondent. The Bundesgerichtshof reversed the Oberlandesgericht’s judgment insofar as it had rejected the Applicant’s appeal, modified the Landgericht’s judgment, and declared the arbitral award enforceable with respect to the third Respondent. The Bundesgerichtshof found that enforcement was governed by Section 1044 of the German Civil Procedure Code read in conjunction with Section 1042 of the German Civil Procedure Code. It stated that under Article 17 of the Convention between the Federal Republic of Germany and the Kingdom of the Netherlands on the Reciprocal Recognition and Enforcement of Court Decisions and Other Enforceable Titles in Civil and Commercial Matters, dated 30 August 1962, the NYC was applicable. The Bundesgerichtshof concluded that under Article VII(1) NYC, a party could request enforcement pursuant to the domestic law of the country where enforcement was sought. The Applicant had made use of this so that Section 1044 of the German Civil Procedure Code read in conjunction with Section 1042 of the German Civil Procedure Code was applicable. It concluded that there were no grounds for refusing enforcement under Section 1044 of the German Civil Procedure Code. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1334&opac_view=6 Attachment (1)
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Country France Court France, Cour d’appel de Versailles (Court of Appeal of Versailles) Date 23 January 1991 Parties Société Bomar Oil N.V. v. Entreprise tunisienne d'activités pétrolières (ETAP) Case number 10988/89 Applicable NYC Provisions I | II | II(1) | II(2) | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Versailles
Summary By an exchange of telexes in August 1983, a Tunisian public entity (ETAP) and a company registered in the Netherland Antilles (Bomar Oil) entered into an agreement for the sale of crude oil by ETAP, which referred to "other conditions" belonging to the "standard ETAP contract". A dispute arose and ETAP commenced arbitration in accordance with the International Chamber of Commerce (ICC) arbitration agreement included in the standard ETAP contract. Bomar objected to jurisdiction by arguing that it had not consented to any arbitration agreement. An award was rendered on 25 January 1985, whereby the arbitral tribunal rejected the objection to jurisdiction. Bomar Oil initiated an action to set aside the award before the Cour d'appel de Paris (Paris Court of Appeal), arguing that the arbitration agreement, which was not included in the document signed by the parties, but only in a separate document to which reference was made in the main agreement, should be deemed non-existent. The Cour d'appel de Paris dismissed the action, but this decision was then overturned by the Cour de Cassation (Supreme Court) which held that it violated Article II(1) and II(2) NYC to the extent that it did not find that the existence of an arbitration agreement could have been mentioned during the exchange of telexes nor that the parties had regular business relations. The case was then remitted before the Cour d'appel de Versailles (Versailles Court of Appeal), whereby Bomar Oil contended again that it had not consented to any arbitration agreement and requested that the award be set aside pursuant to Article II NYC. The Cour d'appel de Versailles dismissed Bomar Oil's action to set aside the award. It reasoned that although the NYC applies to the recognition and enforcement of arbitral awards (Article I NYC), it is also applicable in the context of an action to set aside an award where the validity and existence of the arbitration agreement is challenged (and notably Article II NYC). Pursuant to Article VII NYC, it held that French Courts, where seized upon an action to set aside the award, should not apply the provisions of the NYC when that of French international arbitration law are more favorable with respect to the validity of the arbitration agreement. The Cour d'appel de Versailles then noted that both French law and the NYC require an agreement to be in writing and none exclude the possibility that the arbitration agreement be contained in a document to which reference is made in the main agreement, insofar as it can be demonstrated that the party against which the arbitration agreement is invoked was aware of the arbitration agreement at the time the main agreement was entered into. In the case at hand, the Cour d'appel de Versailles found that Bomar Oil had accepted ETAP's conditions and received the "ETAP standard contract" in a meeting on 22 August 1983. It thus held that Bomar Oil was bound by the arbitration agreement. affirmed by : follows : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=133&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 29 June 1989 Case number 6 U (Kart) 115/88 Applicable NYC Provisions VII | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Frankfurt Languages English Summary Following arbitration proceedings administered in Moscow by the Maritime Arbitration Commission at the USSR Chamber of Commerce and Industry in Moscow (MAC), a Soviet party obtained a favourable award in a shipping dispute against a German party. Enforcement was granted in Germany by the Landgericht (Regional Court) Kassel. The German party appealed the decision to the Oberlandesgericht (Higher Regional Court) Frankfurt, arguing, inter alia, that it had been coerced against its will to enter into the arbitration agreement with the Soviet party. The Oberlandesgericht dismissed the appeal and confirmed the Landesgericht’s decision that the award was enforceable in Germany. The Oberlandesgericht found that the Soviet party was allowed to seek enforcement not only under the German-Soviet Agreement on General Matters of Trade and Navigation of 1958, but also under more-favourable provisions under German domestic law. The Oberlandesgericht noted that the most-favourable right principle was explicitly set out in Article VII(1) NYC to which both Germany and the Soviet Union were parties. It further held that the principle is applicable not only in relation to treaties, but also in relation to domestic law since no party should be denied enforcement of an arbitral award based on a treaty when the relevant domestic law allows enforcement Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=927&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 05 May 1987 Parties Commandement des Forces Aériennes de la République Islamique d'Iran v. Société Bendone Derossi International Limited Partnership Case number 85-13.162 Applicable NYC Provisions VII Source Bulletin 1987 I N° 137 p. 107, Original decision obtained from the registry of the Cour de cassation
Summary On 15 January 1978, a US company (Bendone Derossi International) entered into a supply agreement for military uniforms with the Iranian Air Forces, which contained an International Chamber of Commerce (ICC) arbitration agreement. A dispute arose and an arbitral award was rendered in Paris on 15 December 1980 in favor of Bendone Derossi International. The Iranian Air Forces filed an action to set aside the award which was declared inadmissible by the Cour d'appel de Paris (Paris Court of Appeal), holding that the provisions of Article 1502 of the Code of Civil Procedure were not applicable to the case at hand. The Iranian Air Forces challenged this decision on the ground that, pursuant to Article VII NYC and Article 12 of the Code of Civil Procedure, the Cour d'appel de Paris should have applied the legal remedies provided under French law. The Cour de cassation (Supreme Court) dismissed the Iran Air Forces claim. It reasoned that the NYC is not applicable to the case at hand, since the action does not relate to the enforcement of an arbitral award, but to its setting aside. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=125&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 09 October 1984 Parties Société Pabalk Ticaret Limited Sirketi c. Société Norsolor Case number 83-11.355 Applicable NYC Provisions V | V(1) | V(1)(e) | VII | VII(1) Source Original decision obtained from the registry of the Cour de cassation
Summary A Turkish company (Pabalk) entered into a commercial representation agreement with a French company (Ugilor, later Norsolor), which contained an International Chamber of Commerce (ICC) arbitration agreement. A dispute arose and an award was rendered in Vienna on 26 October 1979 in favor of Pabalk. In an order issued on 4 February 1980, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. Pursuant to Article 1028 of the Code of Civil Procedure, Norsolor challenged the enforcement order before the Tribunal de Grande Instance de Paris, which dismissed its claim. In the meantime, the Vienna Court of Appeal partially set aside the award on 29 January 1982, on the ground that the arbitral tribunal had breached Article 13 of the ICC Rules by failing to establish which national law was applicable and merely referring to the lex mercatoria . Norsolor then appealed the enforcement order and the decision dismissing its claim before the Cour d'appel de Paris (Paris Court of Appeal), which, in a decision dated 19 November 1982, overturned the decision and partially retracted the enforcement order pursuant to Article V(1)(e) NYC, given that certain sections of the operative part of the award had been set aside by the Vienna Court of Appeal. Appealing this decision, Pabalk argued that the Cour d'appel de Paris violated Article 12 of the Code of Civil Procedure, and Article VII NYC given that, under French law, the court in charge of the enforcement of an arbitral award may not control the reasons stated in the arbitral award and that the reference made by the arbital tribunal to the lex mercatoria does not violate international public policy. The Cour de cassation (Supreme Court) overturned the decision of the Cour d'appel de Paris. It reasoned that according to Article VII NYC, the provisions of the NYC do not deprive any interested party of any right it may have to avail itself of an arbitral award in a manner and to the extent allowed by the law where such award is sought to be relied upon. It added that Courts may not refuse enforcement of an arbitral award where their domestic legislation so permits and, by virtue of Article 12 of the Code of Civil Procedure, Courts should, even sua sponte, proceed to this verification. It then held that the Cour d'appel de Paris should have verified whether French law allowed Pabalk to avail itself of the award. reverses : see also :
- France / 15 December 1981 / France, Cour d'appel de Paris / Société Norsolor v. Société Pabalk Ticaret Limited Sirketi / I I0I92
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / c. Party request not necessary / §12
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / c. Domestic law more favourable than article V(1)(e) / §42
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=118&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 10 May 1984 Case number III ZR 206/82 Applicable NYC Provisions VII | VII(1) Source BGH Summary This is one of two decisions handed down by the Bundesgerichtshof (Federal Supreme Court) in 1984 by which it accepted the American doctrine of merger in Germany (for the other decision, see link below). The Petitioners obtained a favorable award under the American Arbitration Association Rules. The New York Supreme Court confirmed the judgment and declared it enforceable, and dismissed the Respondent's recourse against the judgment. The German Court of First Instance and Oberlandesgericht (Higher Regional Court) Karlsurhe declared the award enforceable. The Bundesgerichtshof granted the Petitioners the choice between having either the exequatur judgment or the award declared enforceable where an award is rendered in a jurisdiction following the doctrine of merger. It held that a party who has obtained a leave for enforcement in the country of origin of the arbitral award, has for the recognition and enforcement a choice between the arbitral award and the judgment declaring the award enforceable, even if the award had merged into the judgment (the doctrine of merger in Anglo-American law). The Court reasoned that the effect of a such decision of a foreign court could not exclude the enforcement of the award under the relevant provision of the German Civil Procedure Code. German law was applicable, reasoned the Court, in virtue of the more-favorable-right provision at Article VII(1) NYC. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=218&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 14 March 1984 Parties Denysiana SA v. Jassica SA Case number 110 Ib 191 Applicable NYC Provisions I | I(3) | V | V(1) | V(1)(e) | VII | VII(1) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary Jassica sought enforcement in Switzerland of an arbitral award rendered against Danysiana in Paris. Both the Tribunal de Première Instance de Genève (First Instance Tribunal of Geneva) and the Cour de Justice de Genève (Court of Justice of Geneva) granted enforcement of the award. Denysiana appealed to the Tribunal Fédéral (Federal Tribunal). The Tribunal Fédéral confirmed the decision of the Cour de Justice de Genève. It noted that France and Switzerland are bound by the Treaty on Jurisdiction and Enforcement of Judgments in Civil Matters dated 15 June 1869 (“the Bilateral Treaty”) and the NYC, both of which contain provisions regarding enforcement of arbitral awards rendered in another country. The Tribunal observed that Article IV NYC requires that the party seeking enforcement produce the original award and the arbitration agreement or a copy certified thereof. In the present case, Jassica had filed the arbitral award, along with the decision of the Court of Appeal of Paris denying the application to have the award set aside and a certificate from the Cour de cassation confirming the decision of the Paris Court of Appeal. The Tribunal Fédéral also noted that Article VII(1) provides that the NYC “shall not affect the validity of multilateral or bilateral agreements concerning the recognition or enforcement of arbitral awards entered into by Contracting States”. It held that it was therefore allowed for Contracting States to derogate from the NYC by the adoption of stricter or more liberal rules. Noting that the NYC was concluded long after the Bilateral Treaty, adding that its adoption had the purpose of facilitating recognition and enforcement of arbitral awards, the Tribunal Fédéral concluded that both Switzerland and France had intended that parties benefit from more favorable conditions, pursuant to the principle of maximum effectiveness. The party opposing enforcement, Denysiana, alleged that it was not served proper notice of the decision of the Cour de cassation and thus, based on the NYC, the decision was inapplicable to it. The Tribunal Fédéral ruled that pursuant to Article V(1)(e) NYC, it is for the party opposing enforcement to prove that the award is not binding, and nothing on the record showed that the award was not final between the parties. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=561&opac_view=6 Attachment (2)
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Country United Kingdom Court England and Wales, House of Lords Date 01 March 1984 Parties Minister of Public Works of the Government of the State of Kuwait v. Sir Frederick Snow & Partners Applicable NYC Provisions VII | VII(2) Source [1984] A.C. 426 | online: ICLR
Languages English Summary In 1979, the claimant State commenced proceedings in England under the Arbitration Act 1975 (U.K.) (“the Act”) to enforce an award made in 1973 by a Kuwaiti arbitrator concerning disputes arising out of a contract for the construction of an international airport in Kuwait. In 1973, when the award was made, the claimant State was not a party to the NYC, but by 1979, when the enforcement proceedings were commenced, it had become a party. The defendants resisted enforcement on the basis that a foreign award could only qualify as a “Convention award” for the purposes of the Act (being defined as “an award made in pursuance of an arbitration agreement in the territory of a state, other than the United Kingdom, which is a party to the [NYC]”) if the State in which it was made was already a party to the NYC at the date of the award. The claimant State argued that a foreign award could qualify as a “Convention award” if the State in which it was made had become a party to the NYC by the date on which the enforcement proceedings were commenced. At first instance, it was held that the award was not a “Convention award” for the purposes of the Act and could not be enforced under it. The claimant State appealed. The Court of Appeal allowed the appeal. The defendants appealed. The House of Lords dismissed the defendants’ appeal, their Lordships preferring the meaning of the expression “Convention award” in the Act contended for by the claimant State. In so ruling, their Lordships noted that in case they were wrong in their view that the meaning of the expression “Convention award” was unambiguous, it was permissible to refer to the text of the NYC in order to obtain assistance in resolving any ambiguity. Such assistance was to be found in Article VII (2) NYC, the effect of which is that, upon two or more States which were parties to the 1923 Geneva Protocol on Arbitration Clauses and the 1927 Geneva Convention on the Execution of Foreign Arbitral Awards becoming parties to the NYC, the two earlier treaties shall no longer apply as between such States. If the expression “Convention award” was construed in the way contended for by the defendants, the result of Article VII (2) NYC would be to produce a lacuna in the reciprocal recognition and enforcement of awards as between many States. They gave the following illustration. First, suppose that before 1975, states A and B were both parties to the Geneva Treaty of 1927. In that case, awards made in state A could be enforced pursuant to that treaty in state B, and vice versa. Next, suppose that in 1975 both states A and B became parties to the NYC. Then, on the defendants' construction of the expression “Convention award”, an award made in state A in, say, 1970, could not be enforced as a Convention award in state B because, at the time when such award was made, state A was not yet a party to the NYC. At the same time, by reason of Article VII(2) NYC, the award made in state A could not be enforced in state B under the Geneva Treaty of 1927, because that treaty would, upon states A and B becoming parties to the NYC in 1975, have ceased to have effect as between them. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=890&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Nancy (Court of Appeal of Nancy) Date 05 December 1980 Parties Les Trefileries & Ateliers de Commercy (T.A.C.) v. Société Philipp Brothers France et Société Derby & Co Limited Case number 753/80 Applicable NYC Provisions II | II(3) | VII | VII(2) Source Original decision obtained from the registry of the Cour d’appel de Nancy
Summary A French company (Les Trefileries & Ateliers de Commercy - TAC) ordered 900 tons of RUTIL from another French company (Philipp Brothers France) by telex on 12 March 1975. On 21 March 1975, Philipp Brothers France sent TAC a sales contract established by Derby & Co Ltd for 900 tons of RUTIL, which was then signed by TAC on 2 April 1975. The contract was concluded under the General Conditions of Derby & Co Ltd which contained an arbitration agreement providing for arbitration in London. A dispute arose and TAC sued both Philipp Brothers France and Derby & Co Ltd before French Courts. The Tribunal de Commerce de Bar Le Duc (Commercial Court of Bar Le Duc) held that the NYC did not apply in the case at hand given that it was ratified by the United Kingdom on 24 September 1975 (while noting that the sales contract was concluded on 2 April 1975) and therefore the award, which had not been declared enforceable in France, had no effect under French law. Nevertheless, it found that TAC's claims were groundless. TAC appealed this decision. The Cour d'appel de Nancy (Nancy Court of Appeal) reversed the decision and found that TAC's action was inadmissible. It first noted that the sales contract had been signed and accepted by TAC and therefore the sales contract was binding upon TAC and Derby & Co Ltd, which included the arbitration agreement. It noted further that the Arbitral Chamber of London had rendered an award on 13 December 1977. It then reasoned that while the NYC replaced the Geneva Protocol on Arbitration Clauses, Article VII(2) NYC provides that the Geneva Protocol shall cease to have effect between the Contracting States on their becoming bound by the NYC. It noted that at the time of the signature of the sales contract, the United Kingdom was still bound by the provisions of the Geneva Protocol and that pursuant to Article I of the Geneva Protocol, the arbitration agreement was valid. Given that the United Kingdom had ratified the NYC on 24 September 1975 and that the award was rendered on 13 December 1977, the Cour d'appel de Nancy held that the arbitral award was applicable to the French party, on the basis of reciprocity. It ruled further that pursuant to Article II(3) NYC, the Tribunal de Commerce de Bar Le Duc should have referred the parties to arbitration. In conclusion, it held that the arbitral award was res judicata and that TAC's claims were inadmissible pursuant to Article 122 of the Code of Civil Procedure. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=114&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 09 March 1978 Case number III ZR 78/76 Applicable NYC Provisions VII | VII(1) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary A Dutch seller of potatoes (the Seller) initiated arbitration proceedings against two German producers of French fries (the Buyers) based on an alleged sales agreement between the parties that provided for arbitration under the Rules and Usages of Intra-European Trade in Potatoes (RUCIP) in Hamburg. The arbitral tribunal dismissed the Seller’s claims based on the absence of a valid arbitration agreement. The Seller then appealed to an appellate arbitral tribunal as per the RUCIP, seated in Brussels, which modified the previous award and rendered an award in favor of the Seller. The arbitration award was declared enforceable by way of an order (“ordonnance”) by the President of the First Instance Court in Brussels. Upon application by the Seller, the Landgericht (Regional Court) Duisburg granted enforcement of the award. The Buyers lodged an objection to the declaration of enforceability on the grounds that no contract or arbitration clause existed between the parties. The Landgericht rejected the objection and confirmed its declaration of enforceability by way of a court judgment. The Buyers appealed – unsuccessfully – to the Oberlandesgericht (Higher Regional Court) Düsseldorf, and subsequently, on points of law only, to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof upheld the decision of the lower courts stating that enforcement was governed by the German-Belgian Treaty concerning the Reciprocal Recognition and Enforcement of Judicial Decisions, Arbitral Awards and Official Documents in Civil and Commercial Matters of June 30, 1958, (“the Treaty”), which was applicable to arbitral awards rendered within the territory of the contracting parties to the Treaty. As the appellate arbitral tribunal had been seated in Brussels, the Treaty was applicable to the award. However, the Bundesgerichtshof went on to say that, under Article 16 of the Treaty, the NYC, amongst others, might also be applicable, but found that it did not need to decide the interrelationship of such other treaties and the German-Belgium Treaty since the latter was more favorable for a party that sought enforcement in Germany of an arbitral award rendered and granted enforcement in Belgium. It held that Article VII NYC permitted the enforcing court to apply the more favorable rule in the bilateral treaty. The Bundesgerichtshof concluded that under the German-Belgium Treaty there existed no grounds to refuse enforcement of the arbitral award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1336&opac_view=6 Attachment (1)
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