Court of Cassation, No. 93-18.486

Court of Cassation, First Civil Chamber, 28 February 1995, No. 93-18.486

Challenged decision: Paris Court of Appeal, 29 May 1993

SOCIÉTÉ GÉNÉRALE POUR L’INDUSTRIE (SGI)

Vs.

EWBANK AND PARTNERS LTD

On the sole grounds taken in its three parts:

Whereas for the execution of a consulting mission, the Libyan company ISP concluded, on 6 April 1978, a contract with the Swiss consulting engineers SGI and the British company Ewbank and Partners LTD which was subject to Libyan law and stipulated the solidarity of these two companies without taking into account the distribution of work between them;

At the request of ISP, SGI and Ewbank set up, as of 31 March 1978, a “joint venture” governed by Swiss law, providing for the same solidarity and specifying that the agreement will remain in force until all obligations have been fulfilled and the accounts have been balanced;

On 28 September 1978, SGI, Ewbank and a subsidiary of the latter entered into an agreement, also subject to Swiss law, but stipulating that in their relations, SGI will be solely responsible for the proper execution of the consultancy contract;

SGI, complaining about the fact that its partner entered into an agreement with ISP in 1983 to solely perform the mission, has initiated two arbitration procedures. The first one was against ISP, in the framework of which, on 19 November 1987, an award was rendered, deciding that both parties breached their obligations and that the consultant contract ended on 30 January 1983. The second arbitration was against Ewbank, in the framework of which, on 2 December 1991, a partial award was rendered, deciding that the two other agreements did not end and that SGI committed a failure in the performance of its commitments towards Ewbank.

Whereas SGI criticizes the challenged judgment (Paris, 28 May 1993) which partially rejected its action for the annulment against the 1991 award, while, according to the ground, the arbitrators did not comply with due process (in French Principe de la contradiction) because they relied on provisions of Swiss law, which were not raised by the parties;

On the other hand, they contradicted them when, on the one hand, they noted that according to the 1987 award, there was no longer any contractual relationship between ISP and SGI since 30 January 1983 and that, on the other hand, they held that Ewbank should be compensated because it assumed, from that date, the rights of SGI vis-à-vis ISP;

Finally, SGI considers that the arbitrators did not comply with their mission by determining in a precise manner the principles of evaluation of the damages suffered by Ewbank;

But given, first of all, that the Swiss company SGI, which reminded both in its request for arbitration and in the Terms of Reference that the agreements binding it with Ewbank were governed by Swiss law, could not complain that the law determined by the parties was applied to the dispute even if, subsequently, it refrained from presenting observations on this point;

Whereas, in the second place, the alleged contradiction of reasons, if it is established, concerns, in the present case, not the statement of facts, but the relevance of the legal reasoning, the questioning of which is, moreover, excluded from the mission of the Court of Appeal which rules in application of articles 1504 and 1502 of the new Code of Civil Procedure, as the latter exactly reiterated;

And whereas, finally, it was through its interpretation of the parties’ procedural agreement of 2 November 1990, that the Court of Appeal held that the arbitral tribunal, in ruling as criticised by the last part of the ground, did not exceed its mission according to which “it had to render an interim award on the possible responsibilities and the principles on which the financial awards arising therefrom will be calculated without being required to quantify the damages or other amounts payable thereunder” ;

Hence it follows that the ground cannot accepted in none of its parts;

And the appeal is abusive;

FOR THESE REASONS:

REJECTS the appeal;

Orders the company SGI to a civil fine of twenty thousand francs, towards the Public Treasury;

Orders it, towards Ewbank and Partners, to pay the costs and expenses of the enforcement of the present decision;

Orders SGI to pay Ewbank and Partners LTD the sum of 20,000 francs on the basis of Article 700 of the new Code of Civil Procedure;

Thus, done and judged by the Court of Cassation, First Civil Chamber, and pronounced by the President in his public hearing of 28 February 1958.