Case Law
Colombia / 26 January 1999 / Colombia, Corte Suprema de Justicia (Supreme Court of Justice) / Merck & Co Inc. (US), Merck Frosst Canada Inc., Frosst Laboratories Inc. (Colombia) v Tecnoquimicas S.A. (Colombia) / 7474
| Country | Colombia |
| Court | Colombia, Corte Suprema de Justicia (Supreme Court of Justice) |
| Date | 26 January 1999 |
| Parties | Merck & Co Inc. (US), Merck Frosst Canada Inc., Frosst Laboratories Inc. (Colombia) v Tecnoquimicas S.A. (Colombia) |
| Case number | 7474 |
| Applicable NYC Provisions | I | I(1) | III |
| Source |
http://www.cortesuprema.gov.co (website of the Corte Suprema de Justicia) |
| Summary | A dispute arose between the companies Merck and Frosst on the one hand and Tecnoquimicas on the other. The contracts entered into by the parties provided for arbitration under the auspices of the International Chamber of Commerce (ICC). A sole arbitrator, nominated by the ICC, issued an interim award on jurisdiction on 29 July 1998. The sole arbitrator held that the arbitration agreements were valid, that he had jurisdiction over the dispute and ordered Tecnoquimicas to refrain from pursuing the arbitral proceedings it had started before the Chamber of Commerce of Bogota. Merck and Frosst requested enforcement of the award in Colombia. By decision of 12 November 1998, the sole Justice at the Corte Suprema de Justicia (Supreme Court) denied recognition. The Claimants appealed. On appeal, the Corte Suprema de Justicia confirmed and dismissed the application for recognition of the award. It first affirmed that it is for the enforcing judge to exercize control over the arbitral award, and in particular to verify that he had jurisdiction. The Corte Suprema de Justicia considered that the control must be made in accordance with international conventions (the NYC) and as subsidiary matter, with national law. The Corte Suprema de Justicia noted that both the United States and Colombia are parties to the NYC, and hence that it is applicable to the present case. The Corte Suprema de Justcia recalled the requirements set forth in the NYC. However, it noted that the NYC did not define the word "award". It considered that "award" should be construed in acccordance with the spirit of the NYC. It defined an "arbitral award" as a decision of arbitrators putting an end to an arbitral proceeding by deciding over the dispute. The Corte Suprema de Justicia noted that Article I(1) NYC adopted a substantial criterion in stating that it applies to awards "arising out of differences between persons", thus considering that not all arbitral decisions are enforceable but only those which decide a dispute. The Corte Suprema de Justicia concluded that an "arbitral award" within the meaning of the NYC does not include an award on jurisdiction. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
