Court of Cassation, No. 00-16.822

Court of Cassation, First Civil Chamber, 6 May 2003, No. 00-16.822

SOCIÉTÉ POUR LA PÊCHE ET LE TRAITEMENT INDUSTRIEL DU POISSON (SOPIP)

vs.

COMPANY EL BANCO ARABE ESPANOL (ARESBANK) AND OTHERS.

On the first ground of SOPIP’s main appeal:

Société marocaine pour la pêche et le traitement industriel du poisson (SOPIP) complains that the judgment under appeal (Paris, 14 December 1999) dismissed its request for stay of proceedings on its action for annulment of an arbitral award, rendered in the dispute between the company and the Spanish bank ‘Société El Banco Arabe Espanol’ (ARESBANK) and the Moroccan Central Guarantee Fund, ordering it to pay various sums to the Spanish bank, a request based on criminal proceedings initiated in Spain for the same case. It is maintained that the Convention of 19 June 1990 implementing the Schengen Agreement, like the Convention on the Transfer of Sentenced Persons of 21 March 1983, would impose between the signatory States the rule “the criminal law has precedence over the civil law”.

However, the Court of Appeal correctly retained that this rule is applicable in international relations only by virtue of a treaty. The conventions referred to in the appeal do not include such provision. The Court of Appeal, on this point, legally justified its decision.

And on the second ground of the same appeal, as well as on the sole ground, taken in its three parts, of the cross-appeal of the Moroccan Central Guarantee Fund:

It is argued that the arbitral tribunal would have based its decision on a null arbitration agreement, and without complying with its mission, by omitting to refer to the contractual provisions, so that the Court of Appeal would have distorted the said agreement and violated article 1502 of the new Code of Civil Procedure.

However, the Court of Appeal rightly upheld that the SOPIP, by participating in the procedure without making any reservation of rights on the appointment of the arbitrators, was not admissible to challenge before it the validity of the arbitration agreement.

Moreover, the judges of the action for annulment noted that the arbitrators, after having assessed the various breaches of contractual obligations, ruled by amending the consequences of a strict application of the contract in the name of equity and the principle of good faith required in international contractual relations, thus exercising their powers to act as amiables compositeurs.

The judgment also notes, sovereignly, that the arbitrators did not rule beyond what was requested of them.

That none of the grounds are thus founded;

FOR THESE REASONS:

DISMISSES the main and incidental appeals;