Switzerland / 09 December 2008 / Switzerland, Tribunal Fédéral (Federal Tribunal) / 4A_403/2008
| Country | Switzerland |
| Court | Switzerland, Tribunal fédéral (Federal Tribunal) |
| Date | 09 December 2008 |
| Case number | 4A_403/2008 |
| Applicable NYC Provisions | V | V(1) | V(1)(e) |
| Source |
http://www.bger.ch (website of Swiss Federal Tribunal) |
| Languages | English |
| Summary | State Y and Company X entered into a Memorandum of Understanding (MoU) on 31 July 2002 providing for ICC arbitration in Paris. A dispute arose as to certain payments alleged due by State Y to Company X under the MoU. State Y commenced an arbitration. The arbitral tribunal rendered an award holding that that the alleged debt under the MoU was nonexistent. State Y sought enforcement orders for the award in France and Switzerland. The Tribunal of First Instance of Geneva granted recognition. Company X appealed before the Court of Justice of Geneva, which upheld the decision of the court below. Company X appealed to the Federal Tribunal. The Swiss Federal Tribunal dismissed the appeal. Company X opposed recognition and enforcement of the award on the basis that such recognition was contrary to Art V(1)(e) NYC. It argued that the award was not yet binding because an action to set aside was still available against the award in France and that under French law the deadline to bring an action to set aside an award suspends its enforceability. The Federal Tribunal held that the award was "binding" in the sense that no ordinary means of recourse are any longer available against it. It also held that an award does not need to be enforceable at the State of the seat in order to be considered as binding because this would amount to double exequatur. The Federal Tribunal accepted the fact that an action to set aside is available does not affect the nature of the award as binding and that thus Company X had failed to prove that the action to set aside was an ordinary means of recourse against the award. Finally, the Federal Tribunal held that the mere suspension of the award's enforceability by operation of the law of the seat does not affect the binding nature of the award, unless such suspension is declared by a court. |
Attachment (2)
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Unofficial Translation Adobe Acrobat PDF |
