France / 16 October 1997 / France, Cour d'appel de Paris / Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar (ASECNA) v. M. Issakha N'Doye / 96/84842
Country | France |
Court | France, Cour d'appel de Paris (Court of Appeal of Paris) |
Date | 16 October 1997 |
Parties | Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar (ASECNA) v. M. Issakha N'Doye |
Case number | 96/84842 |
Applicable NYC Provisions | V | V(1) | V(1)(e) | V(2) | V(2)(a) | V(2)(b) | VII | VII(1) |
Source |
Original decision obtained from the registry of the Cour d’appel de Paris |
Summary | An individual was hired on 16 September 1985 by the ASECNA (Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar). Following his dismissal, the individual commenced arbitration pursuant to the arbitration agreement contained in his employment contract. An award was rendered in August 1994 in Senegal in his favor. In an order issued on 8 July 1996, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. Appealing this decision, ASECNA argued that (i) the dispute was not capable of settlement by arbitration and that the enforcement order would be contrary to the French conception of international public policy, (ii) the award was not final since there was a pending action before the Dakar Court of Appeal and thus the recognition and enforcement of the award should be refused in accordance with Article 5(1)(e) NYC, and (iii) it benefited from immunity of jurisdiction and execution. The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order and dismissed the action. It first noted that the France-Senegal Convention on Judicial Cooperation of 29 March 1974, provided that the recognition and enforcement of awards rendered in these countries shall be granted in accordance with the provisions of the NYC. It then reasoned that Article V(2)(b) refers to the conception of international public policy of the country where enforcement in sought and not to internal public policy of that country. On this basis, it found that, even though employment dispute fall under the exclusive jurisdiction of the Conseils de Prud'hommes (Employment Tribunal) under French law, the fact that this dispute was settled by arbitration was not contrary to the fundamental principles of the French conception of international public policy. As to the fact that the award was not final, the Cour d'appel de Paris reasoned that since the France-Senegal Convention on Judicial Cooperation refers to the NYC, the Contracting Parties had implicitly consented to the exception under Article VII NYC which provides that the provisions of the NYC may not deprive a party of any right it may have to avail itself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. It then held that French Court may only refuse enforcement in the limited number of situations listed at Article 1502 of the Code of Civil Procedure, which does not include the situation set forth at Article V(1)(e) NYC, and that given that the award rendered in Senegal is an international award which is not anchored in the legal order of that country, its existence is not affected by the outcome of the appeal initiated before local courts and therefore its recognition and enforcement in France was not contrary to international public policy. Lastly, the Cour d'appel de Paris ruled that ASECNA had waived its immunity of jurisdiction by consenting to arbitration and that, given that the enforcement procedure of an award does not constitute an enforcement measure, the recognition and enforcement of the award does not affect ASECNA's immunity of execution. |
affirmed by : | |
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Attachment (1)
Original Language Adobe Acrobat PDF |