Switzerland / 16 December 2011 / Switzerland, Tribunal Fédéral (Federal Tribunal) / A v. B / 5A_441/2011
Country | Switzerland |
Court | Switzerland, Tribunal fédéral (Federal Tribunal) |
Date | 16 December 2011 |
Parties | A v. B |
Case number | 5A_441/2011 |
Applicable NYC Provisions | IV | V | V(1) | V(1)(b) |
Source |
http://www.bger.ch (website of Swiss Federal Tribunal) |
Languages | English |
Summary | Three contracts were concluded between a seller and a buyer. A dispute arose and the buyer filed a Request for Arbitration to the Grain and Feed Trade Association (GAFTA). An award was rendered on 26 May 2005 in favor of C. On 25 February 2008, the parties entered into a settlement agreement whereby the buyer agreed to waive its right to enforce the award in exchange for payment, in 8 installments, of half the sum awarded by the arbitral tribunal. The settlement agreement provided that in the case of non-payment of an installment, the settlement agreement would become void. The buyer subsequently assigned the settlement agreement to its holding. The seller did not pay one of the installments and the holding company terminated the settlement agreement and sought enforcement of the arbitral award. The seller opposed enforcement on the ground that it violated Article V(1)(b) NYC. The Tribunal de Première Instance (Court of First Instance) granted enforcement of the award and the Cour de Justice of Geneva (Court of Justice of Geneva) confirmed the enforcement order. The seller lodged an appeal before the Tribunal Fédéral. The Tribunal Fédéral (Federal Tribunal) dismissed the appeal. It held that international arbitral awards, if enforceable, are considered equivalent to judgments. The Tribunal Fédéral considered that the requirements of Article IV NYC were met and that it was for the party opposing enforcement to prove a violation of Article V(1)(b) NYC. The Tribunal Fédéral dismissed the argument that the seller’s representative had not been duly authorized to conduct the arbitration proceedings and therefore it was not properly served notice nor given an opportunity to participate in the arbitration proceedings, on the grounds that it pertained to the merits. |
Attachment (2)
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Unofficial Translation Adobe Acrobat PDF |