Court of Cassation, No. 89-12.576

Court of Cassation, First Civil Chamber, 6 November 1990, No. 89-12.576

Challenged decision: Paris Court of Appeal, 16 December 1988

DELATTRE-LEVIVIER S.A.

Vs.

OMNIUM MAROCAIN DE PECHE S.A.

THE COURT OF CASSATION, FIRST CHAMBER, rendered the following judgment:

Whereas, according to the judgement under appeal (Paris, 16 December 1988), by contract of 20 September 1982, the company DELATTRE-LEVIVIER undertook to deliver to the OMNIUM MAROCAIN DE PECHE a port complex for fishing and ship repair; that the arbitrators, appointed under an arbitration clause included in this contract, order DELATTRE-LEVIVIER to pay penalties for delay by setting 28 June 1985 as the date of provisional acceptance of the entire work, after noting that the initial date of entry into force of fourteen of the nineteen partial provisional acceptance reports was crossed out and replaced by that of 28 June 1985 at the latest. This change was signed in particular by the representative of the company DELATTRE-LEVIVIER; DELATTRE-LEVIVIER complains that the challenged judgment rejected its action for annulment of the arbitral award while the arbitrators were accused of noting on their own motion, without requesting the explanations of the parties, that the date of the provisional acceptance of the entire work could not have been prior to 28 June 1985:

Having thus adopted a definition of the date of acceptance different from that of the contract, as alleged by the parties, and relying on the presence in the debate of the ground pursuant to which the arbitrators were given the mission of fixing the date of provisional acceptance of the work as a whole, the court of appeal did not reason its decision under articles 1504 and 1502-4, of the new Code of Civil Procedure.

But whereas the date of 28 June 1985, which was chosen by the arbitrators as the date of the postponement of the date initially set for the partial provisional acceptance of certain units of the work, results from the minutes of these acceptances rularly produced before the arbitrators, and the indications relating to their effective date have not been contested by the parties; that thus, the Court of Appeal, in holding that the circumstances in which the minutes were signed as well as the postponement of their effective date were in dispute, legally justified its decision without incurring the ground of appeal;

FOR THESE REASONS:

REJECTS the appeal;