Court of Cassation, No. 92-17.075

Court of Cassation, Civil Chamber 1, of 15 June 1994, No. 92-17.075

Société nigérienne des produits pétroliers (SONIDEP)

vs.

Company SIGMOIL Ressources

On the appeal brought by Société nigérienne des produits pétroliers (SONIDEP), a state-owned company with a capital of 500 million CFA francs, whose registered office is in Niamey (Niger), BP 11702, against a decision rendered on 26 March 1992 by the Paris Court of Appeal (First Chamber, Section C), in favour of SIGMOIL resources NV, whose registered office is in Curaçao (Netherlands Antilles), defendant to the Court of Cassation;

In support of its appeal the claimant mentions two grounds of cassation annexed to the present judgment;

On 14 November 1985, SONIDEP sold two shipments of oil to SIGMOIL Resources, whose registered office was on Curaçao. The contract stipulated that its “validity and proper performance would be governed by French law” and that any dispute would be settled “by arbitration in Paris in accordance with the rules of the UNCITRAL”. SIGMOIL implemented this clause and the arbitrator, who accepted his assignment on 9 March 1989, made his award on 15 September 1990. The judgment under appeal (Paris, 26 March 1992) rejected SONIDEP’s action for annulment of this award;

On the first ground:

SONIDEP complains that the judgment did not take into account the legal consequences of its findings, which implied that the arbitrator refused to submit only the merits of the dispute to the law designated in advance, retaining, on the basis of the French procedural law not applicable or of the UNCITRAL rules of procedure, only the law applicable to the proceedings, of alleged practices in the international oil trade not designated by the parties for the resolution of the dispute. By ruling that the arbitrator complied with its mission by making obiter reference to the rules of procedure, the Court of Appeal thus did not justify its decision in the light of article 1502-3 of the new Code of Civil Procedure.

However, by “referring to the usages of international trade” in accordance with articles 13 and 16 of the contract interpreted in the light of articles 1135 and 1161 of the Civil Code “while taking as a basis for his decisions the French law applicable to the substance of the dispute”, the arbitrator sought and designated the rule of law which the arbitration clause mentions, the determination and implementation of which are beyond the review of the Court of Cassation.

It follows that the ground cannot is not founded.

On the second ground:

The decision of the Court of Appeal is further challenged for refusing to apply French procedural law, and therefore article 1456 of the new Code of Civil Procedure, which, according to its own grounds, applies unless the parties agree otherwise to determine the duration of the arbitration. The Court thus disregarded the consequences of its own findings that neither the arbitration agreement nor the UNCITRAL rules contained provisions setting time limits for the arbitrator.

However, the arbitration in this case was not subject, by the will of the parties, to French law, which, moreover, does not require, in matters of international arbitration, that the powers of arbitrators be limited, in the absence of a contractual time limit, to a legal time limit. By relying solely on the arbitration rules chosen by the parties, in which the absence of rules on the duration of the arbitration did not conflict on this point with a mandatory French rule, the Court of Appeal, legally justified its decision to exclude the application of Article 1456 of the New Code of Civil Procedure.

FOR THESE REASONS:

Dismisses the appeal;

Orders SONIDEP, towards SIGMOIL Resources NV, to pay the costs and expenses of the execution of this judgment;

Thus done and judged by the Court of Cassation, First Civil Chamber, and pronounced by the President in a public hearing on the fifteenth of June nineteen hundred and ninety-four.