France / 13 November 1984 / France, Cour d'appel de Rouen / Société Européenne d'Etudes et d'Entreprises (S.E.E.E.) v. République Socialiste Fédérale de Yougoslavie et autres / 982/82
| 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. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
