Court of Cassation, No. 91-16.949

Court of Cassation, First Civil Chamber, 20 December 1993, N. 91-16.949

FOUGEROLLE

vs.

BUTEC ENGINEERING

On the sole ground taken in its two branches:

Fougerolle, holder of an agreement for the construction of a military hospital in Syria, concluded in 1976 and 1977, three design and construct contracts with the Lebanese company Butec Engineering. Following the discontinuation of payments by the project owner, Fougerolle interrupted the payment of fees to Butec on the basis of the clause in the contracts authorising Fourgerolle to pay the design office solely with regards to the receipts actually received from the project owner. The arbitrators awarded Butec the right to the payment of the full amount of its fees; amount which they have set.

Fougerolle objects to the judgment under appeal (Paris, 12 April 1991) which rejected its action for annulment of the award based on Article 1502-3 of the new Code of Civil Procedure. On the one hand, the arbitrators have not complied with their mission by misrepresenting the clause pertaining to the fees. On the other hand, the Court of Appeal did not respond to its pleadings denouncing the contradictions and inadequacies of the grounds on which the award was based with respect to the calculation of the fees of Butec.

However, first, the power of the Court of Appeal, which was petitioned pursuant to Articles 1502 and 1504 of the new Code of Civil Procedure, is limited to the review of the grounds mentioned by these articles. The Court of Appeal has rightly stated that the misrepresentation of the contractual documents by the arbitrators cannot be equated with the arbitrators' breach of their obligation to comply with their mission.

Secondly, the judgment states, on the one hand, that it is not established that the arbitrators have ruled on contradictory or insufficient grounds, and, on the other hand that they considered, without contradicting themselves, that the engineering agreement was exclusive of any notion of haphazardness with regards to the payment of the fees owed to Butec by the contractor. The Court of Appeal has, thus, responded to the statements invoked.

Hence it follows that the ground, unfounded in its first part, is equally unfounded in its second one.

FOR THESE REASONS:

REJECTS the appeal.