Switzerland / 31 May 2002 / Switzerland, Bundesgericht / 4P.102/2001
| Country | Switzerland |
| Court | Switzerland, Bundesgericht |
| Date | 31 May 2002 |
| Case number | 4P.102/2001 |
| Applicable NYC Provisions | II | II(1) | II(2) | IV | IV(1) | IV(1)(b) | V |
| Source |
http://www.bger.ch (website of Swiss Federal Tribunal) |
| Languages | English |
| Summary | A broker arranged for the negotiation of a charter party between the Applicant and the Respondent under which the Applicant was to transport used cars to Libya in two shipments. The charter party contained a reference to the general terms and conditions, which contained an arbitration clause. Neither party signed the charter party. A dispute arose in relation to the shipment and the Applicant initiated arbitration proceedings in London, obtaining a favorable award. It then sought to have the award declared enforceable by the Bezirksgericht (Regional Court) Zurich, which rejected the request. The Applicant appealed, unsuccessfully, to the Obergericht (Higher Cantonal Court) Zurich, after which it filed a complaint (staatsrechtliche Beschwerde) to the Bundesgericht (Swiss Federal Tribunal). The Applicant alleged that the Respondent had received a copy of the same general terms and conditions in the context of an earlier charter party that had been arranged by the same broker, and that it had implicitly accepted the arbitration clause contained in the general terms and conditions by way of several written confirmations. The Bundesgericht dismissed the complaint and confirmed the lower court’s decision refusing enforcement of the award. The Bundesgericht noted that the parties disputed whether there was an agreement in writing in the terms of Article II(2) NYC, as required for the recognition of foreign arbitral awards pursuant to Article II(1) NYC. The Bundesgericht held that under Article IV(1)(b) NYC the burden was upon the Applicant to provide to the court not only the arbitral award, but also an arbitration agreement which met the form requirements of Article II(2) NYC. It further noted that contrary to what the Applicant seemed to allege, the burden of proof was reversed only in the context of Article V NYC, which describes the grounds under which the recognition and enforcement of a foreign arbitral award may exceptionally be refused. The Bundesgericht concluded that the Applicant had failed to prove that there existed an arbitration agreement in accordance with the form requirements under Article II(2) NYC, while noting that the Applicant had not asserted that the arbitration agreement was contained in the charter party. Moreover, the Bundesgericht found that the Applicant had failed to establish that there existed an exchange of letters containing the arbitration clause since it had failed to provide evidence that the Respondent had received the document containing the arbitration clause, or that there were other circumstances due to which the Respondent would have had knowledge of the arbitration clause. The Bundesgericht thus concluded that it could not be assumed that the Respondent, through its confirmation letters, had implicitly accepted the arbitration clause. |
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Attachment (1)
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