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France / 20 June 1980 / France, Cour d'appel de Paris / M. Clair v. MM. Berardi, Garnier et Pavec / G II542
Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 20 June 1980 Parties M. Clair v. MM. Berardi, Garnier et Pavec Case number G II542 Applicable NYC Provisions I | I(3) | V | V(1) | V(1)(e) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary On 25 October 1973, Mr. B. entered into an agreement with Mr. C. The agreement contained an arbitration agreement providing for arbitration under the aegis of the International Chamber of Commerce (ICC) in Geneva. A new Protocol was concluded on 11 December 1973, between Mr. B. and the French company (B.A.C.C.I.) represented by Mr. C., which contained a similar arbitration agreement. A dispute arose and the parties filed a joint Request for arbitration. An award was rendered in Geneva on 20 July 1978 in favor of Mr. B. In an order issued on 3 October 1978, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. Mr. C. challenged this decision before the same judge, which dismissed his claim on 23 July 1979. Appealing this decision, Mr. C. and B.A.C.C.I. argued that the underlying award was a Swiss award, set aside by the Geneva Court of Justice on 31 October 1979, and that, pursuant to Article V(1)(e) NYC, the recognition and enforcement of a foreign arbitral award should be refused when it has been set aside in the country where the award was rendered. It also claimed that the award was contrary to public policy. The Cour d'appel de Paris (Paris Court of Appeal) overturned the enforcement order. It held that the law applicable to the arbitral procedure was Swiss law in accordance with the ICC Rules. While noting that the award had been set aside by Swiss Courts, it then reasoned that pursuant to Article V(1)(e) NYC, the recognition and enforcement of an arbitral award shall be refused when it is established that the award has been set aside or suspended by the competent authority of the country in which the award was rendered. It noted further that the parties did not claim that the the dispute arose out of legal relationship which was not commercial under the meaning of Article I(3) NYC. It thus held that, as a result of the setting aside of the award by Swiss Courts, the said award could not be enforced in France and dismissed the other claim that the award would be contrary to public policy. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=113&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 21 February 1980 Parties General National Maritime Transport Company v. Société Gotaverken Arendal A.B. Case number F 9224 Applicable NYC Provisions I | I(3) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary Under three contracts dated 19 December 1973, a Swedish company (AB Gotaverken) manufactured three oil tankers for a Libyan company (Libyan General Maritime Transport Organization, which later became General National Maritime Transport Company - GNMTC). The contracts contained an arbitration agreement providing for arbitration under the aegis of the International Chamber of Commerce (ICC) in Paris. A dispute arose when GNMTC refused to take delivery of the oil tankers and an award was rendered on 5 April 1978 in favor of Gotaverken. GNMTC initiated an appeal against the award before French courts ("appel-nullité") to have the award set aside on various grounds. It argued, inter alia, that the reasoning of the award was contradictory and insufficient, and that it was contrary to public policy in that it imposed on GNMTC an obligation contrary to the rules of public order in Libya. Gotaverken argued that the Cour d'appel de Paris (Paris Court of Appeal) should decline jurisdiction in favor of the Swedish Supreme Court before which the case was pending. It argued further that, given that the award had not been declared enforceable in France, the Cour d'appel de Paris lacked jurisdiction to decide on this action. Lastly, it contended that the award could not be considered as an award governed by French arbitration law, while noting that according to the NYC, the arbitration law of the place of the arbitration merely plays a subsidiary role. GNMTC argued that French law should be held applicable, especially considering that the NYC provides for the applicability of the arbitration law of the seat of the arbitration. The Cour d'appel de Paris found that the appeal was not admissible and dismissed the action. It reasoned that the arbitration had an international character since the interests of international commerce were involved. It then considered that the arbitral award was rendered following a procedure other than that of French law, which was not connected in any manner with the French legal system, and therefore it could not be considered French. As to the applicability of the NYC, the Cour d'appel de Paris held that the provisions of the Convention, which aim at facilitating the recognition and enforcement of arbitral awards, are not applicable where the action does not seek the enforcement of an award rendered in international arbitration and therefore no decisive argument could be drawn from the Convention to determine whether the procedural law of the country where the arbitration took place must be applied subsidiarly. It also recalled that France has used the reservation provided at Article I(3) NYC by declaring that it will only apply the NYC, on the basis of reciprocity, to the recognition and enforcement of awards made in the territory of another Contracting State. In conclusion, the Cour d'appel de Paris ruled that recourse available against an arbitral award which is not French are those which are available against a foreign arbitral award, which does not include the "appel-nullité". see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=111&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 10 May 1971 Parties Compagnie de Saint-Gobain Pont-à-Mousson v. The Fertilizer Corporation of India Limited Case number J 9915 Applicable NYC Provisions V | V(1) | V(1)(b) | V(1)(c) | V(1)(e) | V(2) | V(2)(b) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary A French company (Saint Gobain) entered into an agreement with an Indian company (Fertilizer Corporation of India Limited - F.C.L.I.) for the construction of a plant in India. A dispute arose and an award was rendered on 29 September 1969 in New Delhi in favor of F.C.L.I. In an order issued on 3 December 1969, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. In the meantime, Saint-Gobain initiated an action before the High Court of New Delhi to have the arbitral award declared without legal effect until it had been approved by the aforementioned court. Saint-Gobain also challenged the enforcement order before the President of the Tribunal de Grande Instance de Paris, arguing that the award had not yet become binding on the parties and that due process had been violated and that therefore the enforcement should be refused pursuant to Articles V(1)(b) and V(1)(e) NYC. In the alternative, Saint-Gobain requested an adjournment of the decision on the enforcement of the award pending the proceedings before the High Court of New Delhi in accordance with Article VI NYC. The President du Tribunal de Grande Instance de Paris dismissed the action on 15 May 1970. On 17 November 1970, the Indian Supreme Court declared that the award was final and binding on the parties. Appealing the 15 May 1970 order, Saint-Gobain argued that (i) the arbitral tribunal had failed to comply with the mandate conferred upon it (Article V(1)(c) NYC), (ii) due process had been violated (Article V(1)(b) NYC), and that (iii) the award was contrary to the public policy of the country where recognition and enforcement was sought (Article V(2)(b) NYC). The Cour d'appel de Paris (Paris Court of Appeal) affirmed the decision of the President of the Tribunal de Grande Instance de Paris of 15 May 1970 and upheld the enforcement order. It did not refer to the NYC and rejected all of the arguments raised by Saint-Gobain based, inter alia, on the alleged violation of due process and public policy. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=110&opac_view=6 Attachment (1)
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Country France Court France, Tribunal de Grande Instance de Strasbourg (Court of First Instance of Strasbourg) Date 09 October 1970 Parties Animalfeeds International Company v. Société Becker Applicable NYC Provisions II | V | IV Summary Various arbitral awards were rendered in 1967 in Hamburg in favor of Animalfeeds International. An application for recognition and enforcement of said awards was filed before the Tribunal de Grande Instance de Strasbourg (First Instance Court of Strasbourg). The losing party (A. Becker et Cie) objected to the enforcement of the awards by arguing that the application was not admissible since Animalfeeds failed to disclose the documents required by Article IV NYC, i.e. the duly authenticated original award or a duly certified copy and the original agreement under which the parties undertook to submit to arbitration their dispute or a duly certified copy thereof. It contended further that the Tribunal de Grande Instance de Strasbourg should decline jurisdiction to hear this matter since the arbitral tribunal had ruled without a signed arbitration agreement. Lastly, it claimed that the arbitral awards were not res judicata in the country in which they were rendered. The Tribunal de Grande Instance de Strasbourg allowed enforcement of the arbitral awards in France. It noted that that Animalfeeds had produced all of the documents required by Articles II and IV NYC. It then held that the arbitral tribunal had jurisdiction to hear the dispute. As to the fact that the arbitral awards are not res judicata in Germany, the Tribunal de Grande Instance de Strasbourg reasoned that the NYC does not require that the award be declared enforceable in both the country where it was made and in the country where such award is sought to be relied upon, but simply provides that the award should be binding on the parties, which was the case here. It added that the awards were not contrary to French public policy. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=109&opac_view=6 Attachment (1)
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Country France Court France, Tribunal de Grande Instance de Paris (Court of First Instance of Paris) Date 15 May 1970 Parties Compagnie de Saint-Gobain Pont-à-Mousson v. The Fertilizer Corporation of India Limited Applicable NYC Provisions I | V | V(1) | V(1)(b) | V(1)(e) | VI Summary A French company (Saint Gobain) entered into an agreement with an Indian company (Nangal Fertilizer and Chemicals Private Ltd, whose rights and obligations had been assumed by Fertilizer Corporation of India Limited - F.C.L.I.) for the construction of a plant in India. A dispute arose and an award was rendered on 19 September 1969 in New Delhi in favor of F.C.L.I. In an order issued on 3 December 1969, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. In the meantime, Saint-Gobain initiated an action before the High Court of New Delhi to have the arbitral award declared without legal effect until it had been approved by the aforementioned Court. Saint-Gobain also challenged the enforcement order before the President of the Tribunal de Grande Instance de Paris, arguing that the award had not yet become binding on the parties and that due process had been violated and therefore the enforcement should be refused pursuant to Articles V(1)(b) and V(1)(e) NYC. In the alternative, Saint-Gobain requested an adjournment of the decision on the enforcement of the award pending the proceedings before the High Court of New Delhi in accordance with Article VI NYC. The President of the Tribunal de Grande Instance de Paris upheld the enforcement order and dismissed the action. He first reasoned that under Article V(1)(e) NYC, an award is considered as binding when the award had been rendered in a regular fashion and that all the formalities required for arbitral awards have been complied with. In the case at hand, he held that Saint-Gobain had failed to establish that the award was not binding in the country in which it was made. He then rejected Saint-Gobain's argument based on an alleged violation of due process in breach of Article V(1)(b) NYC, while recalling that, pursuant to Article V(1) NYC, the recognition and enforcement of the award may be refused at the request of the party against whom it is invoked, only if that party furnishes proof of such violation to the competent authority where the recognition and enforcement is sought. As to the request for adjournment of the decision on the enforcement of the award pending the proceedings in India, the President of the Tribunal de Grande Instance de Paris considered that Article VI NYC leaves discretion to the enforcement judge to adjourn the decision on the enforcement of the award when proceedings to set aside or suspend the award have been made to a competent authority of the country in which the award was made. He concluded that Saint-Gobain failed to establish that the adjournment would be proper. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=108&opac_view=6 Attachment (1)
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E/CONF.26/L.40 - France, Federal Republic of Germany and Netherlands: amendment to articles 3, 4 and 5- 02/06/1958
Date 02/06/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.5.Further Amendments to the Draft Convention Submitted by Governmental Delegations - 29 May -3 June 1958 Country France | Netherlands Applicable NYC Provisions II | IV | V | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(b) Language(s) French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3365&opac_view=6 Attachment (1)
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Comments Report of Working Party n°1 established at the United Nations Conference on Internal Commercial Arbitration (its 7th meeting held on 23 May 1958) Date 02/06/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.6. Reports of Working Party I: 2-4 June 1958 Country Colombia | France | India | Israel | Italy | Turkey | United Kingdom Applicable NYC Provisions I | III Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3368&opac_view=6 Attachment (1)
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Date 29/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.3. Comparison of Drafts Relating to Articles III, IV and V of the Draft Convention - 29 May 1958 Country Netherlands | Sweden | Israel | Pakistan | France | Japan | Yugoslavia | Poland | United Kingdom | Switzerland | Italy Applicable NYC Provisions IV | V | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(a) | V(2)(b) Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3359&opac_view=6 Attachment (1)
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Date 28/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.2. Amendments to the Draft Convention Submitted by Governmental Delegations : 21 -28 May 1958 Country France | Netherlands Applicable NYC Provisions V(1)(c) | V | V(1)(d) | V(2)(a) Language(s) French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3355&opac_view=6 Attachment (1)
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Date 28/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.3. Comparison of Drafts Relating to Articles III, IV and V of the Draft Convention - 29 May 1958 Country Netherlands | Sweden | France | Pakistan | Israel | United Kingdom Applicable NYC Provisions II | V | V(1)(c) Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3358&opac_view=6 Attachment (1)
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Date 22/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.2. Amendments to the Draft Convention Submitted by Governmental Delegations : 21 -28 May 1958 Country Austria | Belgium | France | Italy | Netherlands | Sweden | Switzerland Applicable NYC Provisions I Language(s) French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3320&opac_view=6 Attachment (1)
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Date 13/04/1956 Classification (first level) A. Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Comments by Governments and Organizations Classification (second level) A.2. Comments by Governments and Organisations on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: January 1956 - March 1958 Country France Applicable NYC Provisions V | V(1)(c) Language(s) French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3304&opac_view=6 Attachment (1)
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Comments Annex I: Comments by Governements (General observations and then comments on each article) Annex II: Comments by Non-Governmental Organizations (General observations and then comments on each article). Date 31/01/1956 Classification (first level) A. Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Comments by Governments and Organizations Classification (second level) A.2. Comments by Governments and Organisations on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: January 1956 - March 1958 Country Austria | Belgium | Brazil | China | Denmark | France | India | Japan | Korea | Lebanon | Mexico | Philippines | Switzerland Applicable NYC Provisions I | II | III | IV | V | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(a) | V(2)(b) | VII | VIII | IX | X | XI | XII | XIII | XIV | XV | XVI Language(s) English | French | Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3297&opac_view=6 Attachment (1)
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France
Date of signature 25 November 1958 Date of ratification 26 June 1959 Instrument of ratification Decree No. 59-1039 of 1 September 1959
Date of entry into force 24 September 1959 Reservations France has made a reciprocity reservation. However, French legal provisions on recognition and enforcement of foreign awards apply to awards rendered abroad whether or not they are rendered in a New York Convention contracting State. France made a reservation for commercial relationships, which it withdrew on 27 November 1989 (Decree No. 90-170 of 17 November 1989) [Original in French].
National Arbitration Act in force Decree No. 2011-48 of 13 January 2011 [Original in French | Translation in English]
Domestic Court with jurisdiction over recognition and enforcement of foreign award President of the Tribunal judiciaire de Paris (Judiciary Court of Paris)
Author(s) and Contributor(s) Luca de Maria (PMG Avocats)
Benjamin Siino (Gaillard Banifatemi Shelbaya Disputes)More information... https://newyorkconvention1958.org/index.php?lvl=cmspage&pageid=11&menu=575&opac_view=-1
