Switzerland / 10 October 2011 / Switzerland, Tribunal Fédéral (Federal Tribunal) / 5A_427/2011
| Country | Switzerland |
| Court | Switzerland, Tribunal fédéral (Federal Tribunal) |
| Date | 10 October 2011 |
| Case number | 5A_427/2011 |
| Applicable NYC Provisions | V | V(2) | V(2)(b) | IV | IV(1) | IV(1)(b) |
| Source |
http://www.bger.ch (website of Swiss Federal Tribunal) |
| Languages | English |
| Summary | A and B concluded a contract for the delivery of goods from A to B. Bank acted as guarantor for B, agreeing to pay the price of goods upon the presentation of certain documents by A. These were presented and payment was made. Subsequently, B entertained doubts as to the authenticity of the documents and alleged that it had not received the agreed goods. B commenced an arbitration before the Syrian Council of State, relying on a pro forma invoice dated 22 February 2001 which provided for arbitration. The Council of State found that A had used a falsified inspection certificate in the documents submitted to the bank and that A did not participate in the proceedings. B’s bank also initiated criminal proceedings against A in France; the French court found there had been no fraud. B applied to the Tribunal of First Instance in Geneva, seeking to freeze A’s assets held by D’s bank in Geneva and enforce the award. In its application it submitted faxed copies of the invoice containing the arbitration agreement. The Tribunal of First Instance found for B; its decision was upheld on appeal. A appealed again. The Swiss Federal Tribunal dismissed A’s appeal. The Federal Tribunal held that Article IV(1)(b) NYC, which requires the original arbitration agreement to be submitted for an award to be enforceable, should not be interpreted in an excessively formalistic manner. It held that although that the document submitted was not the original invoice but a faxed copy, the authenticity of the document had not been challenged by A. Arguments by A that it had not been notified to participate in the proceedings (pursuant to Article V(1)(b) NYC) and that enforcement of the award would be contrary to Swiss public policy (Article V(2)(b) NYC) were unsuccessful on the facts. |
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Attachment (2)
 Original Language Adobe Acrobat PDF |
Unofficial Translation Adobe Acrobat PDF |
