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Bruno Leurent ; Nathalie Mayer-Fabre / La reconnaissance en France des sentences rendues à l'étranger, l'exemple Franco-Suisse / 13(1) ASA Bulletin 118 (1995) - 1995
Author(s) Bruno Leurent ; Nathalie Mayer-Fabre Source 13(1) ASA Bulletin 118 (1995) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions France | Switzerland Worldcat Number Worldcat : 716343894 
ISBN 978-90-411-2322-0 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3003&opac_view=6
France / 29 November 1994 / France, Cour de cassation / CDF Chimie North America INC et al. v. Tolt Nielsen Incorporated et al. / 92-14.920
Country France Court France, Cour de cassation (French Court of Cassation) Date 29 November 1994 Parties CDF Chimie North America INC et al. v. Tolt Nielsen Incorporated et al. Case number 92-14.920 Applicable NYC Provisions II Source Original decision obtained from the registry of the Cour de cassation
Summary A French company (CDF Chimie France) chartered a vessel for the transportation of chemicals to a US company (CDF Chimie North America), which was carried out by another US company (Stolt Nielsen). The latter delivered a bill of lading to CDF Chimie North America which provided that transportation was governed by the charter-party agreement, a copy of which could be requested from the charter company or the loading company. A dispute arose after the vessel was damaged and the French company and CDF Chimie North America sued Stolt Nielsen and the owner of the vessel before French Courts, which objected to jurisdiction by invoking the arbitration agreement contained in the charter-party agreement. The Cour d'appel de Paris (Paris Court of Appeal) held that the arbitration agreement was binding upon CDF Chimie North American which had received the bill of lading. CDF Chimie North American challenged this decision. The Cour de cassation (Supreme Court) overturned the decision of the Cour d'appel de Paris. It reasoned that, according to Article II NYC, a party is bound by an arbitration agreement if it has been brought to its attention and if it has consented to it, at the latest, at the time when it received the merchandise, after which it was bound by the charter-party agreement. It then held that CDF Chimie North American was not informed of the content of the charter-party agreement (which included the arbitration agreement) and therefore the decision of the Cour d'appel de Paris did not comply with the provisions of the NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=141&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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Author(s) Charles Jarrosson Source 1994 (4) Revue de l'arbitrage 327 Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions France Worldcat Number Worldcat : 799490172 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5980&opac_view=6
Country France Court France, Cour de cassation (French Court of Cassation) Date 09 November 1993 Parties Société Bomar Oil N.V. v. Entreprise tunisienne d'activités pétrolières (ETAP) Case number 91-15.194 Applicable NYC Provisions II | II(1) | II(2) Source Bulletin 1993 I N° 313 p. 218, Original decision obtained from the registry of the Cour de cassation
Summary By an exchange of telexes in August 1983, a Tunisian public entity (ETAP) and a company registered in the Netherlands Antilles (Bomar Oil) entered into an agreement for the sale of crude oil by ETAP, which referred to "other conditions" belonging to "those of 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 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. In an award of 25 January 1985, the arbitral tribunal rejected the objection to jurisdiction. The Cour d'appel de Versailles (Versailles Court of Appeal), ruling after the case had been remitted to it by the Cour de Cassation (Supreme Court), dismissed Bomar Oil's action to set aside the award. Bomar Oil appealed this decision by arguing that it violated Article II NYC, as well as Articles 1443, 1495 and 1499 of the Code of Civil Procedure, on the basis 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. It contended that this would have been the only way to assume that both parties had full knowledge of the content of the standard ETAP contract and, in particular, the arbitration agreement. The Cour de cassation affirmed the decision of the Cour d'appel de Versailles and refused to set aside the award, without referring to the NYC. It held that in international arbitration, an arbitration agreement, by reference to a document in which it appears (such as the general conditions of a model contract), is valid, in the absence of any mention in the main contract, when the party against which the arbitration agreement is used is aware of the content of the document at the time the contract was entered into. It added that, even though it remained silent, this party accepted the incorporation of that document into the contract. It concluded that, in the case at hand, the Cour d'appel de Versailles had independently noted that Bomar Oil had accepted, without reservations, ETAP's proposals expressly referring to the standard ETAP contract of which it had previously received a copy. affirms : see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / a. Domestic law more favourable than article II / §32
- 1. INTRODUCTION (II) / §6
- II / 2. ANALYSIS (II) / B. Meaning of 'agreement' / §21
- France / 11 October 1989 / France, Cour de cassation / Société Bomar Oil N.V. v. Entreprise tunisienne d’activités pétrolières (ETAP) / 87-15.094
- France / 20 January 1987 / France, Cour d'appel de Paris / Société Bomar Oil N.V. v. Entreprise tunisienne d'activités pétrolières (ETAP) / M 4683
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=138&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Grenoble (Court of Appeal of Grenoble) Date 13 September 1993 Parties Société C.F.T.E. v. Jacques Dechavanne Case number 2550/92 Applicable NYC Provisions II | II(1) Source Original decision obtained from the registry of the Cour d’appel de Grenoble
Summary On 20 March 1991, two individuals sold their shares in two French companies to a German company (Martin Merkel). In the sale assignment agreement, the German company committed that each of the French companies (now, C.F.T.E) were to execute employment contracts with the two individuals. The agreement contained an International Chamber of Commerce (ICC) arbitration agreement (seated in Switzerland). C.F.T.E refused to renew the employment contract of one of the individuals, as provided under the assignment agreement, who then decided to sue C.F.T.E before the Conseil des Prud'Hommes (Employment Tribunal), which ruled in his favor on 26 March 1992. Appealing this decision, C.F.T.E argued that French courts lack jurisdiction to hear this dispute and should have referred the parties to arbitration in accordance with the arbitration agreement contained in the assignment agreement. The Cour d'appel de Grenoble (Grenoble Court of Appeal) reasoned that the assignment agreement is an international contract. It then ruled that an arbitration agreement contained in an international employment contract is valid, while noting that this was confirmed by the French Government in its letter to the Secretary-General of the United Nations, according to which France withdrew the commercial reservation made under the NYC. It noted further that in accordance with Article II NYC, France committed, without any reservation, to recognize "an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship". The Cour d'appel de Grenoble concluded that French courts lacked jurisdiction and overturned the decision of the Conseil des Prud'Hommes. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=137&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 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 France Court France, Cour de cassation (French Court of Cassation) Date 11 June 1991 Parties Société JP. Beemsterboer BV v. Mme Alfred Hellec Case number 90-12.296 Applicable NYC Provisions V Source Registry of the Court
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5232&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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Author(s) Philippe Fouchard Source 1990(1) Revue de l’arbitrage 210 Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions France Worldcat Number Worldcat : 2969562 ISBN 90-411-2322-9 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3002&opac_view=6
Country France Court France, Tribunal de Grande Instance de Paris (Court of First Instance of Paris) Date 22 November 1989 Parties Société Acteurs Auteurs Associés (A.A.A.) v. Société Hemdale Film Corporation Case number 10247/89 Applicable NYC Provisions III | V | V(1) | V(2) Summary On 27 February 1989, an award was rendered in London in favor of Hemdale Film Corporation. The losing party (Acteurs, Auteurs Associés - AAA) sought to have the award declared unenforceable in France on the grounds that it was contrary to international public policy. Hemdale Film Corporation challenged the admissibility of the action by arguing that such action is not provided under the NYC (or allowed under French law) and that Article V NYC subjects the refusal of recognition and enforcement of foreign arbitral awards to a prior application for the recognition and enforcement of the said award. As a counterclaim, it requested the enforcement of the award. The Tribunal de Grande Instance de Paris (First Instance Court of Paris) reasoned that Article V NYC sets forth only the situations in which the recognition and enforcement of an arbitral award may be refused by the "competent authority", but does not define the procedural regime, which shall be determined by the country in which the award is sought to be relied upon in accordance with Article III NYC. It thus held that the NYC cannot be interpreted as excluding such action if it is admissible under the laws of a given country and found that, under French law, such action is inadmissible. The Tribunal de Grande Instance de Paris then rejected the counterclaim, noting that Hemdale Film Corporation should request the recognition and enforcement of the award before the President of the Tribunal de Grande Instance de Paris in accordance with Articles 1477 et seq. of the Code of Civil Procedure. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=130&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 11 October 1989 Parties Société Bomar Oil N.V. v. Entreprise tunisienne d’activités pétrolières (ETAP) Case number 87-15.094 Applicable NYC Provisions II | II(1) | II(2) Source Bulletin 1989 I N° 314 p. 209, Original decision obtained from the registry of the Cour de cassation
Summary By an exchange of telexes in August 1983, a Tunisian public entity (ETAP) and a company registered in the Netherlands 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. In an award of 25 January 1985, the arbitral tribunal rejected the objection to jurisdiction. Bomar Oil commenced 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 in accordance with Article 1502 1° of the Code of Civil Procedure. The Cour d'appel de Paris dismissed this action by ruling that Bomar Oil could not have ignored the provisions of the standard ETAP contract which are common in the hydrocarbon field and, in any case, should have reviewed the said contract prior to consenting to it. Bomar Oil appealed this decision. The Cour de cassation (Supreme Court) reasoned that, pursuant to Article II(1) NYC, the Contracting Parties to the NYC committed to recognize an agreement in writing under which the parties undertake to submit to arbitration any or all differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. It noted further that, in accordance with Article II(2) NYC, an agreement in writing shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. Pursuant to these provisions, it held that an arbitration agreement, by reference to a document in which it appears, is valid if it is mentioned in the main contract, unless it can be established that the parties had regular business relations which would have enabled them to have a full knowledge of the provisions governing their commercial relations. The Cour de cassation overturned the decision of the Cour d'appel de Paris for having failed to assess whether the arbitration clause had been mentioned in the exchange of telexes or to establish the existence of regular business relations between the parties. followed by : reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=129&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 08 December 1988 Parties Société Sysmode and Société Sysmode France v. Société Metra HOS, Société SEMA and Société Higher Order Software Inc. Case number 86-11681 Applicable NYC Provisions II | II(3) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary On 8 January 1982, two French companies (HOS and SYSMODE) entered into an exclusive distribution agreement. The contract contained an arbitration clause. A dispute arose and METRA-HOS sued SYSMODE before the Tribunal de Commerce de Paris (Commercial Court of Paris) which declined jurisdiction and referred the parties to arbitration. The Cour d'appel de Paris (Paris Court of Appeal) affirmed the decision of the Tribunal de Commerce de Paris regarding jurisdiction. It held that, pursuant to Article II NYC and Article 1458 of the Code of Civil Procedure, in the presence of an arbitration agreement domestic courts shall decline jurisdiction and refer the parties to arbitration. It added that the fact that other parties were involved in the proceedings and that the disputes were indivisible did not prevent the enforcement of the arbitration agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=128&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 d'appel de Paris (Court of Appeal of Paris) Date 17 February 1987 Parties Compagnie de Construction Mécanique Sulzer (CCM Sulzer) v. Société Maghrébienne de Génie Civil (SOMAGEC), Société des Anciens Etablissements Riad Sahyoun (SAERS) and M. Riad Riaksallah Sahyoun Case number 86.4787 Applicable NYC Provisions V | V(1) | V(1)(e) | VI Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary On 10 October 1978, two Moroccan companies (SOMAGEC and SAERS) entered into an agreement with a French company (SULZER) containing an International Chamber of Commerce (ICC) arbitration agreement. A dispute arose and an award was rendered in Geneva on 20 December 1985 in favor of SOMAGEC and SAERS. In an order issued on 16 January 1986, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. SULZER initiated an action to set aside the award before the Cour de Justice du Canton de Genève (Geneva Court of Justice), which was dismissed. This decision was then appealed by SULZER. In the meantime, SULZER also appealed the enforcement order issued by the Tribunal de Grande Instance de Paris on the grounds that (i) the arbitral tribunal had ruled without an arbitration agreement or on the basis of an arbitration agreement which was void and had expired (Article 1502 1° of the Code of Civil Procedure), (ii) due process was violated, and (iii) the award was contrary to international public policy. The Cour d'appel de Paris (Paris Court of Appeal) reasoned that, pursuant to Article V(1)(e) NYC, it is for the party opposing the enforcement to demonstrate that the award has not yet become binding on the parties. It added that, in accordance with the provisions of Article VI NYC, if an application for the setting aside or the suspension of the award has been made to a competent authority of the country in which that award was made, the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award. It then decided to adjourn the proceeding until the Swiss Courts had rendered a final decision as to the setting aside of the award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=124&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 20 January 1987 Parties Société Bomar Oil N.V. v. Entreprise tunisienne d'activités pétrolières (ETAP) Case number M 4683 Applicable NYC Provisions II | II(1) | II(2) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary By an exchange of telexes in August 1983, a Tunisian public entity (ETAP) and a company registered in the Netherlands Antilles (Bomar Oil) entered into an agreement for the sale of crude oil by ETAP, which referred to "other conditions" belonging to "those of the standard ETAP contract". A dispute arose and ETAP commenced arbitration in accordance with the ICC arbitration agreement included in the standard ETAP contract. Bomar objected to jurisdiction by 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. In an award of 25 January 1985, the arbitral tribunal rejected the objection to jurisdiction. Bomar Oil commenced an action to set aside the award. It argued that (i) the arbitration agreement was non existent, null and void and had expired (Article 1502 1° of the Code of Civil Procedure) and that the arbitral tribunal should have declined jurisdiction in accordance with Article II NYC which contains more restrictive rules than French law, and (ii) the award violated international public policy (Article 1502 5°). The Cour d'appel de Paris (Paris Court of Appeal) dismissed the action to set aside the award. Regarding the validity of the arbitration agreement, it held that an arbitration agreement, incorporated by reference to a document in which it appears, is valid under French law (Article 1443 of the Code of Civil Procedure). It then reasoned that Article II NYC does not exclude the situation where telexes signed by the parties refer to another document containing an arbitration agreement. Interpreting this provision, it held that the NYC allows an arbitration agreement in writing to be incorporated by reference when the consent of the parties is clear and unequivocal. It concluded that Bomar could not have ignored the conditions of the standard ETAP contract and was therefore bound by the agreement. The Cour d'appel de Paris then rejected the other arguments raised by Bomar Oil. reversed by : see also :
- France / 23 January 1991 / France, Cour d'appel de Versailles / Société Bomar Oil N.V. v. Entreprise tunisienne d'activités pétrolières (ETAP) / 10988/89
- France / 09 November 1993 / France, Cour de cassation / Société Bomar Oil N.V. v. Entreprise tunisienne d'activités pétrolières (ETAP) / 91-15.194
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=123&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 25 February 1986 Parties Société C.O.N.F.E.X. v. Etablissements Dahan and M. Bellue Case number 84-12.138 Applicable NYC Provisions II | II(1) | II(2) Source Original decision obtained from the registry of the Cour de cassation
Summary A sales agreement was concluded on 10 March 1980, between a French company (DAHAN) and a Romanian company (CONFEX), containing an arbitration agreement. By exchange of telexes on 5 and 6 August 1982, the same parties concluded a second sales agreement. A dispute arose between the parties regarding the conformity of the goods delivered in accordance with the second sales agreement. DAHAN sued CONFEX before the Tribunal de Commerce de Marseille (Commercial Court of Marseille), which objected to jurisdiction by invoking the arbitration agreement contained in the 10 March 1980 sales agreement. On 18 January 1984, the Cour d'Aix-en Provence (Aix-en-Provence Court of Appeal) affirmed the decision of the Tribunal de commerce de Marseille which had dismissed CONFEX's objection to jurisdiction and assumed jurisdiction, by ruling that the second sales agreement, which was the subject of the dispute, did not contain any commitment by DAHAN to settle any dispute arising out of the said agreement through arbitration. Appealing this decision, CONFLEX argued that French Courts lacked jurisdiction to hear the dispute. It contended that in international arbitration, the arbitration agreement is not subject to any formal requirement and that the intention of the parties may be established by any means. The Cour de cassation (Supreme Court) upheld the decision of the Cour d'appel d'Aix-en-Provence and dismissed the action. It reasoned that CONFEX, which had invoked the NYC requiring an agreement in writing before the lower courts, could not contradict itself by arguing now that the arbitration agreement is not subject to any formal requirement in international arbitration. It then concluded that, in the case at hand, the parties have not consented to settle disputes arising out of the second sales agreement through arbitration. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=122&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 20 December 1984 Parties Commandement des Forces Aériennes de la République Islamique d'Iran v. Société Bendone Derossi International Limited Partnership Case number K 11457 Applicable NYC Provisions V | V(1) | V(1)(e) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary On 15 January 1978, a US company (Bendone Derossi International) entered into a supply agreement for military uniforms with the Iranian Air Forces, containing 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, whose admissibility was contested by Bendone Derossi International on the ground that the award had been rendered prior to the publication of the 12 May 1981 Decree allowing actions to set aside an international arbitral award. In response, the Iranian Air Forces claimed that its "appel en nullité" was admissible and that, pursuant to Article 1484 of the Code of Civil Procedure and Article V(1)(e) NYC, the Cour d'appel de Paris (Paris Court of Appeal) should rule on the validity of the award. The Cour d'appel de Paris (Paris Court of Appeal) held that the action to set aside the award or the "appel en nullité" was not admissible and dismissed the action. It reasoned that the disputed award was an international award rendered prior to the publication of the 12 May 1981 Decree and thus held that the provisions of the New Code of Civil Procedure (allowing actions to set aside international arbitral awards) did not apply. It added that the reference to the NYC was not relevant in the case at hand, pertaining to the admissibility of the Iranian Air Forces' action. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=120&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Rouen (Court of Appeal of Rouen) Date 13 November 1984 Parties Société Européenne d'Etudes et d'Entreprises (S.E.E.E.) v. République Socialiste Fédérale de Yougoslavie et autres Case number 982/82 Applicable NYC Provisions I | I(1) | V | V(1) Source Original decision obtained from the registry of the Cour d’appel de Rouen
Summary Under a contract dated 3 January 1932, a French company (SEEE, formally known as Société Européenne d'Etudes et d'Entreprises) constructed a railway for the Republic of Yugoslavia, which contained an arbitration agreement. The Republic of Yugoslavia suspended payment during the Second World War. The French Government, exercising diplomatic protection, then reached an agreement with the Yugoslav Government on 18 November 1950, under which the latter agreed to pay a certain amount to SEEE. After payment, SEEE sought additional payments due to the devaluation of the French Franc and a dispute arose between the parties in this respect. An award was rendered in Geneva on 2 July 1956 in favor of SEEE. The Yugoslav Government initiated an action to set aside the award before the Cantonal Court of Vaud, which considered that it lacked jurisdiction to hear the dispute and dismissed the action. This decision was upheld by the Swiss Supreme Court. In an order issued on 10 October 1969, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. However, this decision was later retracted by the Tribunal de Grande Instance de Paris on 8 July 1970, which was upheld by the Cour d'appel de Paris (Paris Court of Appeal), but then reversed by the Cour de cassation (Supreme Court) on 14 June 1977. The case was then remitted to the Cour d'appel d'Orléans (Orléans Court of Appeal), which denied enforcement but whose decision was then overturned by the Cour de cassation, ruling that the enforcement of a foreign arbitral award can be refused only if it violated international public policy. The case was then remitted to the Cour d'appel de Rouen (Rouen Court of Appeal). The Republic of Yugoslavia argued, inter alia, that the award had no legal existence because of the nullity of the arbitration agreement and that it was not final and binding on the parties. It contended further that only the 1927 Geneva Convention was applicable and that the 1961 Geneva Convention and the NYC did not apply since, with respect to the latter, the Republic of Yugoslavia ratified the Convention on 1 October 1981, subject to the reservation that it would apply only to awards made after its ratification took place. The Cour d'appel de Rouen overturned the 8 July 1970 decision retracting the enforcement order and declared the award enforceable in France. It first rejected the arguments raised by the Republic of Yugoslavia based on the lack of admissibility of the appeal and on the immunity of jurisdiction. It then held that the award did not violate international public policy. As to the applicability of the NYC, the Cour d'appel de Rouen reasoned that, as opposed to the 1927 Geneva Convention and the NYC, the 1961 Geneva Convention does not address enforcement issues but relates to arbitration in general and that, therefore, the various international conventions must be applied simultaneously, while noting that the most recent shall supersede the conflicting provisions of the older convention. It noted further that in relations between Contracting States to the 1961 Geneva Convention that are also parties to the NYC, Article IX(1) of the 1961 Geneva Convention limits the application of Article V(1)(e) NYC to the cases of setting aside set out under said Article IX(1). The Cour d'appel held that the purpose of the 1961 European Convention is not to provide grounds for recognition and enforcement of arbitral awards and thus referred to the other conventions entered into prior to the 1961 Geneva Convention. It dismissed the Republic of Yugoslavia’s contention that the NYC would not be applicable, holding that pursuant to Article I NYC, the NYC applies to the recognition and enforcement of an arbitral award made in the territory of a State other than the State in which the recognition and enforcement of the award is sought (as opposed to the 1961 Geneva Convention which takes into account the nationality of the parties). The fact that the Republic of Yugoslavia ratified the NYC in 1981 was deemed irrelevant since, in the case at hand, the scope of application of the NYC depended on France (the place of the enforcement) and Switzerland (the seat of the arbitration). The Cour d'appel de Rouen then held that under the NYC, it is for the party opposing recognition and enforcement to prove that the award has not yet become final or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made. In conclusion, the Cour d'appel de Rouen held that the Swiss Courts did not set aside the award and, as a result, that the award was binding on the parties in accordance with the NYC. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / a. European Convention of 1961 / §20
- I / 2. ANALYSIS (I) / ARTICLE I(1) / b. Awards “not considered as domestic awards in the State where their recognition and enforcement are sought” / §61
- I / 2. ANALYSIS (I) / ARTICLE I(3) / a.The territorial criterion and the reciprocity reservation / §72
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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
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Country France Court France, Cour de cassation (French Court of Cassation) Date 25 May 1983 Parties Société Maatschappij Voor Industríele Research en Ontwikkeling v. M. Lievremont et M. Cominassi Case number 82-11.699 Applicable NYC Provisions V | V(1) | V(1)(d) Source Original decision obtained from the registry of the Cour de cassation
Summary Under a contract dated 21 December 1977, two individuals sold various patents to a research company registered in the Netherlands (Maatschappij Voor Industrielle Research en Ontwikkeling B.V.). The agreement contained an arbitration clause. A dispute arose between the parties and the parties agreed in writing to settle their dispute through arbitration in Brussels. An award was rendered on 30 October 1980 in favor of the two individuals. The research company initiated an action to set aside the award before French Courts. The Cour d'appel de Paris dismissed the action for lack of admissibility due to the fact that under the legal regime prior to the 12 May 1981 Decree, only French awards could be set aside, which was not the case here since it was not established that French law governed the arbitral procedure. Appealing this decision, the research company argued that the parties had implicitly chosen French law as the law governing the arbitral procedure and thus, this was a domestic award, against which an action to set aside could be brought under French law. It argued further that the decision of the Cour d'appel de Paris was contrary to Article V(1)(d) NYC. The Cour de cassation (Supreme Court) upheld the lower courts' decision and dismissed the action. It held that the NYC, which aims at facilitating the recognition and enforcement of foreign arbitral awards, is not applicable when the action does not aim at enforcing an arbitral award, as was the case here. It then reasoned that under the legal regime prior to the 1981 Decree, actions to set aside awards may only be brought against domestic awards and ruled that, in the case at hand, given that the research company had failed to establish that the parties had implicitly chosen French law as the law governing the arbitral procedure, the action to set aside an international arbitral award was not admissible. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=117&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 November 1982 Parties Société Norsolor v. Société Pabalk Ticaret Limited Sirketi Case number I I0I92 Applicable NYC Provisions I | I(1) | V | V(1) | V(1)(e) Source Original decision obtained from the registry of the Cour d’appel de Paris
Languages English Summary A Turkish company (Pabalk) entered into a commercial representation agreement with a French company (Ugilor, which became 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. Norsolor appealed the enforcement order and the decision dismissing its claim before the Cour d'appel de Paris (Paris Court of Appeal) on the ground that the arbitral tribunal had ruled as amiable compositeur (ex aequo et bono) and therefore did not comply with its mandate. It also requested the suspension of the proceeding pending the decision of the Vienna Court of Appeal concerning the setting aside of the award. On 15 December 1981, the Cour d'appel de Paris decided to suspend the proceeding pursuant to Article V(1)(e) NYC. Afterwards, 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. The Cour d'appel de Paris overturned the decision of the Tribunal de Grande Instance de Paris and partially retracted the enforcement order. It first reasoned that the NYC (which had been ratified by France and Austria) was applicable to the case at hand since, in accordance with Article I NYC, it applies to the "recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal" and "arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought". It then noted that the Vienna Court of Appeal had set aside certain sections of the operative part of the award and that the jurisdiction of the Vienna Court of Appeal was not disputed. Pursuant to Article V(1)(e) NYC, the Cour d'appel de Paris held that it may refuse the recognition and enforcement of arbitral award which had been set aside by a competent authority of the country in which the award was rendered and thus decided to partially retract the enforcement order. reversed by : follows : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=558&opac_view=6 Attachment (1)
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Author(s) Philippe Fouchard Source 109(2) Journal du Droit International 374 (1982) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions France Worldcat Number Worldcat : 769985046 ISBN 90-411-2322-9 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3001&opac_view=6
Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 15 December 1981 Parties Société Norsolor v. Société Pabalk Ticaret Limited Sirketi Case number I I0I92 Applicable NYC Provisions V | V(1) | V(1)(e) | VI Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary A Turkish company (Pabalk) entered into an agency 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. Norsolor challenged the enforcement order before the Tribunal de Grande Instance de Paris, which dismissed its claim on the ground that the arbitral tribunal had, in accordance with Article 13 of the ICC Rules, applied the law that it deemed appropriate and complied with the mandate conferred upon it. In the meantime, the Vienna Commercial Court dismissed the action to set aside the award on 29 June 1981, which was subsequently appealed by Norsolor. Norsolor also appealed the enforcement order and the decision dismissing its claim before the Cour d'appel de Paris (Paris Court of Appeal). It argued that the proceeding should be suspended pending the decision of the Vienna Court of Appeal pertaining to the setting aside of the award. It then contended that the enforcement order should be overturned given that the arbitral tribunal had ruled as amiable compositeur (ex aequo et bono) and therefore did not comply with its mandate. The Cour d'appel de Paris reasoned that pursuant to Article V(1)(e) NYC, ratified by both France and Austria, recognition and enforcement of the award may be refused if the award has not yet become binding on the parties or has been set aside or suspended by the competent authority of the country in which, or under the law of which, that award was made. It added that if the award was to be set aside, the enforcement proceeding would be without object. It thus decided to suspend the proceeding pending the decision of the Vienna Court of Appeal. It then dismissed Pabalk's request that the award be granted provisional enforcement. followed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=116&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Reims (Court of Appeal of Reims) Date 23 July 1981 Parties Denis Coakley Limited v. Société Michel Reverdy Case number 774/81 Applicable NYC Provisions V | V(2) | V(2)(b) Source Original decision obtained from the registry of the Cour d’appel de Reims
Summary On 15 September 1978, a French company (Michel Reverdy) sold four shipments of grain to an Irish company (Denis Coakley Limited). A dispute arose and two arbitral awards were rendered in London on 23 May 1980 and 29 September 1980 (the second award, rendered on appeal of the first pursuant to the GAFTA rules, confirmed the first award and ruled in favor of Denis Coakley). In an order issued on 24 November 1980, the President of the Tribunal de Grande Instance de Troyes (First Instance Court of Troyes) allowed enforcement of the awards in France. This decision was subsequently reformed on 6 May 1981, on the ground that one of the arbitrators in the first procedure had subsequently acted as counsel for Denis Coakley in the second procedure, contrary to international public policy. Appealing this decision, Denis Coakley argued that the action was not admissible and that the awards complied with international public policy and did not violate due process. The Cour d'appel de Reims (Reims Court of Appeal) overturned the 6 May 1981 decision and upheld the enforcement order of 24 November 1980. It reasoned that even though the NYC, applicable to the case at hand, provides that the arbitral procedure should comply with the law of the country where the arbitration took place, the recognition and enforcement of the arbitral award should, by virtue of Article V(2)(b) NYC not be contrary to the public policy of the country where the recognition and enforcement are sought. It added that it must examine whether the arbitral awards were compatible with the French concept of public policy and due process. It noted further that the public policy governing the enforcement of foreign arbitral awards is not the domestic public policy, but relates to international law of the State where the decision is sought to be relied upon. In the case at hand, the Cour d'appel de Reims held that Michel Reverdy failed to establish that the 23 May 1980 award was contrary to French international public policy and that due process had been violated. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=115&opac_view=6 Attachment (1)
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Author(s) Pierre Bellet ; Ernst Mezger Source 70(4) Revue critique de droit international privé 611 (1981) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions France Worldcat Number Worldcat : 82173391 ISBN 90-411-2322-9 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3000&opac_view=6
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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