France / 09 November 1993 / France, Cour de cassation / Société Bomar Oil N.V. v. Entreprise tunisienne d'activités pétrolières (ETAP) / 91-15.194
| 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. |
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