Court of Cassation, No. 92-12.309

Court of Cassation, First Civil Chamber, 23 February 1994, No. 92-12.309

Challenged decision: Court of Appeal of Rouen, 16 January 1992

IANDRÉ ET CIE

Vs.

MULTITRADE

Whereas the Dutch company MULTITRADE sold coffee from Cameroon to the Swiss company ANDRÉ ET CIE ET CIE on 18 November 1986; regarding a date of shipment mentioned in the bills of lading which proved to be false, the ANDRÉ ET CIE ET CIE resold the merchandise; ANDRÉ ET CIE was unable to obtain payment from the company MULTITRADE for the difference between the price of the coffee purchased from it and the price at which the coffee had been resold, and it referred to arbitration chamber of the coffees and peppers of Havre on this issue; that by award rendered in the second degree, the arbitrators ruled that the contract should be terminated due to the seller’s failure, but only compensated ANDRÉ ET CIE for the part of its loss relating to the commercial disruption suffered; that the judgment under appeal (Rouen,16 January 1992) dismissed the action for annulment against this award filed by ANDRÉ ET CIE ;

On the first two combined grounds, taken in their various parts:

Whereas, under the guise of unfounded grounds based on the violation of Articles 1504 and 1502-3 and 1502-5, of the new Code of Civil Procedure, the appeal aims, in the fact, to obtain a review on the merits, which is prohibited in the international arbitration matters. The award that the ANDRÉ ET CIE considered, according to its own records, erroneous in law, contradictory, unjust and, as a result, established in contradiction with international public policy because the award refused to take into consideration its damage as determined by it; therefore, the grounds cannot be accepted;

On the third ground, taken in its two parts:

Whereas the ANDRÉ ET CIE also objects to the judgment under appeal which ordered it to a civil fine of 10,000 francs on the basis of Article 559 of the new Code of Civil Procedure. On the one hand, ANDRÉ ET CIE considers that the Court of Appeal would only have this power when it is referred of an appeal brought against a decision of the first instance decision. On the other hand, ANDRÉ ET CIE considers that the Court of Appeal did not identify its failure to exercise its right to file an action for the annulment of an award which it claimed was contrary to international public policy, as this award refused to make full reparation for its damage;

But firstly, however, in accordance with Article 1487 paragraph 1 of the New Code of Civil Procedure, to which reference is made in Article 1507, the action for annulment is brought, investigated and judged in accordance with the rules relating to litigation procedure before the Court of Appeal; it follows that Article 559 of the New Code of Civil Procedure is applicable to the action for annulment provided for in Article 1504;

And whereas, secondly, the Court of Appeal stated that the grounds raised by ANDRE ET CIE in support of its action neither related to any of the grounds restrictively listed in Article 1502 of the New Code of Civil Procedure, nor were they of a serious nature. Therefore, the Court of Appeal was able to conclude that the action was abusive;

From which it follows that the ground is not founded in any of its parts;

FOR THESE REASONS:

DISMISSES the appeal.