Switzerland / 14 April 1983 / Switzerland, Cour de Justice de Genève / C S.A. v. E Corporation / 187
| Country | Switzerland |
| Court | Switzerland, Cour de Justice de Genève (Geneva Court of Justice) |
| Date | 14 April 1983 |
| Parties | C S.A. v. E Corporation |
| Case number | 187 |
| Applicable NYC Provisions | I | I(3) | II | II(2) | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) |
| Source |
Original decision obtained from the registry of the Cour de Justice de Genève |
| Languages | English |
| Summary | E Corporation, incorporated in Liberia and represented by an agent based in London, and C, allegedly entered into a charter party by the exchange of telexes dated 30 April and 1 May 1981. The telexes contained an arbitration agreement providing for arbitration in London. The arbitration agreement provided that in case a party did not nominate an arbitrator within seven days after the other party had nominated an arbitrator, the chosen arbitrator would serve as the sole arbitrator as if he had been designated by both parties. C alleged that it had made a payment on demurrage but had apparently never returned a signed version of the contract. A dispute arose between the parties. E terminated the contract and initiated arbitration proceedings by nominating an arbitrator. C failed to nominate an arbitrator and as a result, the arbitrator nominated by E acted as the sole arbitrator. C did not appear at the proceedings. On 19 January 1982, the sole arbitrator rendered an award in favor of E, who then sought to enforce the award in Switzerland. E filed, along with its request for enforcement, the original award and a French translation. C opposed enforcement on the grounds that there was no valid arbitration agreement within the meaning of Articles II(2) NYC and IV(1)(b) NYC. It argued that it should have been served notice by diplomatic channels in order to comply with Swiss public policy. On 20 July 1982, the Tribunal de Première Instance of Geneva (Geneva Tribunal of First Instance) granted enforcement of the award. It held that an arbitration agreement in writing includes an exchange of telexes pursuant to Article II(2) NYC, and that no violation of fundamental principles of public policy could be found as C had the opportunity to nominate an arbitrator but had not done so. C appealed, arguing that the award violated public policy under Article V(2)(b) NYC since it had only been notified of the arbitration proceedings by a simple letter. The Cour de Justice de Genève (Court of Justice of Geneva) stated that the Tribunal de Première Instance of Geneva did not examine the substantial validity of the arbitration agreement and remanded the case. The Cour de Justice de Genève held that the NYC governed the issue of enforcement since the award was rendered in London. It considered that the reservation made by Switzerland pursuant to Article I(3) NYC did not apply since Switzerland and the United Kingdom were both signatories to the NYC. Concerning C’s allegation that no valid arbitration agreement existed, the Cour de Justice de Genève held that, notwithstanding the principle of Kompetenz-Kompetenz, the enforcing court could examine the validity of the arbitration agreement pursuant to Articles II(2) NYC and IV(1)(b) NYC. It further considered that if the enforcing Court finds that the arbitration agreement does not conform to Article IV(1)(b), it cannot examine the validity of the award. As the Cour de Justice of Geneva noted, the burden shifts when the enforcing court considers the arbitration agreement to be valid pursuant to Article II(2) NYC: then, the party opposing enforcement bears the burden of proving a ground for non-enforcement under Article V(1)(a) NYC. In the present case, the Cour de Justice de Genève considered that the arbitration agreement contained in the telexes was valid pursuant to Article II(2) NYC. However, it noted that the Tribunal de Première instance had not analyzed C’s arguments that it was not a party to the arbitration agreement. |
| see also : |
Attachment (2)
 Original Language Adobe Acrobat PDF |
Unofficial Translation Adobe Acrobat PDF |
