France / 23 January 1991 / France, Cour d'appel de Versailles / Société Bomar Oil N.V. v. Entreprise tunisienne d'activités pétrolières (ETAP) / 10988/89
| 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. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
