Switzerland / 12 January 1989 / Switzerland, Tribunale Federale (Federal Tribunal) / X S.A. v. Y Ltd. / 5P.249/1988
| Country | Switzerland |
| Court | Switzerland, Tribunale Federale (Federal Tribunal) |
| Date | 12 January 1989 |
| Parties | X S.A. v. Y Ltd. |
| Case number | 5P.249/1988 |
| Applicable NYC Provisions | II | II(1) | II(2) | V | V(1) | V(1)(b) | V(2) | V(2)(b) |
| Source |
Original decision obtained from the registry of the Tribunale Federale |
| Languages | English |
| Summary | X, a Swiss company, entered into a sales agreement with Y, a British company, which provided for arbitration in Great Britain. The contract was not signed by the parties but by a broker, acting as mediator. Following a dispute regarding the delivery of goods, Y initiated arbitration proceedings, which were later suspended when the parties agreed upon a new sale and by way of an addendum to the sales agreement. X failed to deliver the goods under the addendum and Y pursued arbitration, obtaining an award in its favor. Upon Y’s request, a payment order was issued in Switzerland, to which X raised an objection (opposizione). The objection was dismissed successively by both the Segretaria Assessore della Pretura di Lugano (Assessor Secretary of the First Instance Court of Lugano) and the Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal). X appealed the decision of the Tribunale d’Appello, arguing that pursuant to Article II(1) and II(2) NYC it was not bound by the arbitration clause because it had not been sent the sales agreement signed by the broker, and had never consented in writing to the arbitration clause contained therein. X also claimed that the award could not be relied upon since (i) X had been unable to present its case, constituting a breach of Article V(1)(b) NYC (ii) the arbitrator appointed by Y had been partial, and (iii) the award was contrary to Swiss public policy as the parties had not had any influence on the composition of the arbitral tribunal given that the arbitration rules required arbitrators to be members of a certain association. The Tribunale Federale Svizzero (Federal Tribunal) dismissed the appeal, thereby dismissing the objection to the payment order (rigetto definitivo). The Tribunale Federale held that the parties had confirmed their consent to the arbitration clause by stating in the addendum that the terms and conditions of the sales agreement were to remain in force. It also found that X had received written notifications of the arbitration and had therefore been fully able to present its case. After noting that issues regarding an arbitrators partiality were governed by Articles V(1)(b) and V(2)(b) NYC and Swiss law, it found that X had failed to produce any evidence in support of its claim. Finally, the Tribunale Federale ruled that the arbitration rules governed the appointment of arbitrators, and it was not contrary to Swiss public policy that the arbitrators were required to be members of a certain association. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
