Court of Cassation, No. 90-12.666

ourt of Cassation, First Civil Chamber, 19 November 1991, No. 90-12.666, Unpublished

S.A. JF BOCCARD

vs

SARL STAPEM ET AUTRES

By an act dated 13 March 1985, the ‘Société de travaux d’approvisionnements pétroliers maritimes’ (STAPEM) and Boccard joined forces, notably by the constitution of a joint venture company, to execute commands in Angola where STAPEM was already established. After the early dissolution of the joint venture company, STAPEM implemented the arbitration clause included in the 1985 convention stipulating that any dispute arising from this contract shall be submitted to an arbitration by the International Chamber of Commerce (ICC). By an award handed down on 27 July 1988, the arbitrator declared himself without jurisdiction to rule on claims relating to concluded relations between STAPEM and the Brazilian subsidiary Boccard, and ordered Boccard to pay to its partner various indemnities.

The judgment under appeal dismissed the action for annulment brought by Boccard against the award.

On the first ground, taken in its two branches:

This judgment is criticized for lacking a legal basis under article 1502 of the new Code of Civil Procedure for having refused to annul the award on the ground of the allocation of an indemnity of 500,000 francs in compensation for the prejudice suffered by STAPEM in its relations with a client due to the poor quality of the labor provided by the company Boccard do Brasil at the time. According to the ground, on the one hand, the court of appeal omitted to specify whether it took its decision in consideration of the arbitration clause, which alone makes it possible to determine the limits of the arbitral jurisdiction, or of the terms of reference. Thus, on the other hand, that it could not rule out the ground of lack of jurisdiction based on the fact that the arbitrator had attributed to Boccard the liability for facts imputable to its subsidiary without specifying in what capacity it was therefore liable.

However, first, the judgment under appeal establishes the link between the claim and the disrupted activity of the joint venture company, so that the claim did indeed concern a dispute arising from the 1985 contract, as stipulated in the arbitration clause. Second, the judgment states, following the award, the permanent use made by Boccard of its subsidiary, particularly by the integration, in the staff of the joint venture company, of a workforce provided by its subsidiary, and that the powers of amiable compositeur conferred upon the arbitrator exempted him from having to explain, on this point, the legal basis of his decision. Thus, the ground is not founded in any of its branches.

On the second ground, taken in its three branches:

The judgment is also criticized for having refused to annul the award in that it awarded STAPEM two indemnities of 3,000,000 francs and 600,959 francs, whereas, according to the ground, that, on the one hand, the court of appeal did not verify whether, in order to do so, the arbitrator had remained within the limits of his powers. On the other hand, it did not specify whether the arbitrator’s jurisdiction was to be determined in consideration of the terms of reference or solely by reference to the arbitration clause. And, finally, the judgment does not examine whether the claims were not based, in STAPEM’s writings, on the non-payment of invoices by Boccard do Brazil.

However, the second of these objections was already invoked by the first ground to which it was answered above. On the other hand, in order to recognize that the arbitrator had not exceeded his powers, the judgment specifies which contractual breaches, committed by Boccard and alleged by STAPEM, were retained by the award as being at the origin of the financial losses for which compensation was sought, apart from the invoice issued by STAPEM to obtain payment of these same disbursements. Hence it follows that the ground, in all of its branches, is no better founded.

On the third ground, taken in its three branches, as set out in the statement of claim and reproduced in the annex to the present judgment.

Whereas, contrary to the assertion of the appeal, the Court of Appeal, in replying by two different means to two distinct grounds which had been grouped together only because of their common basis, did not connect the disputed indemnities to one another in the alleged manner, whereas the ground is, therefore, in fact missing.

FOR THESE REASONS:

DISMISSES the appeal.