Court of Cassation, No. 90-11.485

Court of Cassation. First Civil Chamber, 25 June 1991, No. 90-11.485

TUNISIAN NAVIGATION COMPANY (COTUNAV)

vs.

COMPTOIR COMMERCIAL ANDRÉ

On the sole ground, taken in its two parts:

According to the facts as stated in the judgment under appeal (Paris, 28 November 1989), following an agreement concluded on 3 June 1986 between organisations representing the French and Tunisian governments, a contract for french food assistance to Tunisia for the delivery of 23,500 tons of wheat was awarded to Comptoir commercial André, while the Tunisian Navigation Company (Cotunav) was the carrier agent of the country of destination. Among the provisions of the specifications of this contract, included in a document entitled “technical modalities of food assistance delivery” and included in the agreement, there was an arbitration clause according to which any dispute that might arise between the agent of the country of destination and the deliverer would be settled by the Arbitration Chamber of Paris. According a request of Comptoir commercial André, an award was made on 21 April 1988, ordering Cotunav to pay the costs which arise from its failure to comply with certain obligations relating to the designation of the vessel.

Cotunav objects to the judgment which dismissed its action for setting aside based on article 1502-1 of the Code of Civil Procedure on the grounds that the arbitration clause inserted in the international contract has its own validity and effectiveness that commands to extend its scope to the parties directly involved in the performance of the contract as soon as their contractual situation and their activities create a presumption that they have accepted the clause of which they knew the existence although they were not signatories of the contract containing it. According to the ground, on the one hand, the court of appeal violated article 1134 of the Civil Code, since the arbitration clause must be interpreted restrictively with regard to the public policy jurisdiction of the state courts and has effect only with regard to the signatories of the contract ; then, on the other hand, that agreements benefit third parties only in the case of stipulation for third parties, so that the court of appeal also violated article 1165 of the Civil Code by not noting the existence of such a clause, moreover absent, in this case ;

However, the judgment under appeal also notes that the Cotunav, by agreeing to intervene in the performance of the agreement, necessarily subscribed to the obligations defined by the latter to be borne by the carrier and accepted its technical terms and conditions especially the arbitration clause. Thus, by stating that the Cotunav ratified the arbitration clause by performing the agreement with full knowledge of the facts, the court of appeal, has legally justified its decision on this sole reason; that the ground is therefore unfounded.

FOR THESE REASONS:

DISMISSES the appeal