Court of Cassation, No. 92-15.137

Court of Cassation, First Civil Chamber, 23 March 1994, No.92-15.137

COMPANY HILMARTON

vs.

COMPANY OMNIUM DE TRAITEMENT ET DE VALORISATION SA (OTV)

On the sole ground, taken in its two parts :

The French company Omnium Traitement et de Valorisation (OTV) entrusted the English company Hilmarton Ltd with a mission of advice and coordination for obtaining and carrying out a works contract in Algeria. Hilmarton implemented the ICC arbitration clause of the contract to have payment of the balance of its fees. The arbitral award rendered in Geneva on 19 August 1988, rejecting this request for arbitration. This award was enforced (in French Exequatur) in France while it was set aside in Switzerland.

Hilmarton objects to the judgment under appeal (Paris,19 December 1991) which confirmed the enforcement order (in French Ordonnance d’exequatur) despite the annulment of the award. Then, according to the ground, on the one hand, that the articles 15 and 16 of the Franco-Swiss Convention of 15 June 1869 are not in favour of such a measure.  These exclusive provisions of common law, not being more favourable to the recognition of awards than the New York Convention of 10 June 1958, the latter is therefore applicable, in particular its article 5.1.e according to which must be refused recognition and enforcement of an annulled award in the country in which it was made. Then, on the other hand, the court of appeal also violated articles 1498 and 1502-5, of the new Code of Civil Procedure by giving effect to an award devoid of legal existence by its annulment.

However, first, that the complaint, in so far as it is based on the Franco-Swiss Convention of 1869, is inoperative because of the cessation of the effects of this Treaty as from 1 January 1992.

Furthermore, the judgment under appeal correctly decided that, pursuant to Article 7 of the New York Convention of 10 January 1958, the company OTV was entitled to rely on the French rules relating to recognition and enforcement of awards rendered abroad in international arbitration and in particular Article 1502 of the new Code of Civil Procedure, which does not include among the reasons for refusing of recognition and enforcement, the reasons provided for in article 5 of the 1958 Convention.

Finally, the award rendered in Switzerland was an international award which was not integrated into the legal order of this country. Thus, its existence remained established despite its annulment and its recognition in France was not contrary to the international public order.

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

FOR THESE REASONS :

DISMISSES the appeal.