Switzerland / 21 February 2005 / Switzerland, Tribunal Fédéral (Federal Tribunal) / X v. Y / 5P.353/2004
| Country | Switzerland |
| Court | Switzerland, Tribunal fédéral (Federal Tribunal) |
| Date | 21 February 2005 |
| Parties | X v. Y |
| Case number | 5P.353/2004 |
| Applicable NYC Provisions | V | V(1) | V(1)(b) | V(1)(e) |
| Source |
http://www.bger.ch (website of Swiss Federal Tribunal) |
| Languages | English |
| Summary | On 28 May 2003, X and Y, two companies engaged in the oil business, entered into a sales contract containing an arbitration agreement providing for arbitration before the Riga Commercial Arbitral Tribunal. A dispute arose and the commercial arbitral tribunal of Riga rendered an award on 2 December 2003 in favor of Y (the “First Award”). On 7 January 2004, the District Tribunal of Zimeliai of Riga granted enforcement to the First Award. Meanwhile, X filed a Request for Arbitration before the Riga Commercial Arbitral Tribunal, requesting annulment of the contract. On 13 October 2003 the Riga Commercial Arbitral Tribunal annulled the contract and directed Y to pay damages to X (the “Second Award”). Y did not participate in the second proceedings. On 12 January 2004, the District Tribunal of Zimeliai of Riga refused to enforce the Second Award on the ground that Y had not properly been served notice of the arbitration proceedings. On 24 March 2004, Y filed a request before the Tribunal de Première Instance of Geneva (Geneva Tribunal of First Instance) for enforcement and execution of the First Award. Execution was granted on 25 March 2004 and confirmed by the Cour de Justice de Genève (Geneva Court of Justice) on 23 September 2004. The Cour de Justice of Geneva held that the NYC applied to enforcement of awards rendered outside of Switzerland. It recalled that, pursuant to Article V(1)(e) NYC, an award does not have to be enforced in the country where it had been rendered but needs only be “binding” on the parties. It considered that the award would be “binding” when it has res judicata and cannot be subject to further appeal. It added that recognition and enforcement may only be denied if the party opposing enforcement proves that one of the grounds of Article V(1) NYC is met. The Cour de Justice de Genève considered that X had not alleged any of these grounds, thus the arbitral award was binding. X lodged a public law appeal against the decision of the Cour de Justice, opposing enforcement on the grounds that (i) the First Award was not valid since the contract had been subsequently annulled by the Second Award, and (ii) it was not informed of the arbitral proceedings leading to the First Award, which constituted a ground for non-enforcement under Article V(1)(b) NYC. The Tribunal Fédéral (Federal Tribunal) dismissed the argument and upheld the decision enforcing the award of 2 December 2003. It confirmed that the First Award could be enforced independently of the order of the District Tribunal of Zimeliai of Riga confirming the First award. It also noted that since the District Tribunal of Zimeliai of Riga had refused to grant enforcement of the Second Award for lack of proper notice, the award could not be granted enforcement in Switzerland pursuant to Article V(1)(b) NYC. The Tribunal Fédéral added that while X accepted that recognition and enforcement of the First Award was governed by the NYC, it had not proven any grounds for non-enforcement under Article V(1)(b) NYC. The Tribunal Fédéral dismissed all other grounds based on Swiss internal law. |
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Attachment (2)
 Original Language Adobe Acrobat PDF |
Unofficial Translation Adobe Acrobat PDF |
