Court of Cassation, No. 08-12.149

Court of Cassation, First Civil Chamber, 11 March 2009, No. 08-12.149

MR. X (X)

vs.

TRIOPLAST AB

Whereas on 17 January 1997 Mr. X. entered into an exclusive commercial agency agreement with the Swedish company Trioplast AB for the sale in France of the Triostretch brand products, the agreement including an arbitration clause; whereas Trioplast did not renew the agreement and it expired in January 2004, Mr. X. initiated arbitration proceedings to obtain payment of various sums and referred the matter to the International Court of Arbitration of the International Chamber of Commerce in Paris; that, as the parties agreed on the appointment of a sole arbitrator, that body appointed Mr. Y., of Belgian nationality, as arbitrator; that, by an award of 23 January 2006, the arbitrator dismissed Mr. X. ’s claims; that the judgment under appeal (Paris, 6 December 2007) dismissed the action for annulment of that award;

On the first ground:

Whereas Mr. X. contends that the judgment was rendered by the Paris Court of Appeal, composed inter alia of Mr. Z. before whom the case was heard, pursuant to Articles 786 and 910 of the Code of Civil Procedure, despite the fact that he was a former Secretary General of the Court of Arbitration of the International Chamber of Commerce, thereby violating Article 6 § 1 of the European Convention on Human Rights;

Whereas, however, the International Court of Arbitration, where Mr. Z. was Secretary General, performs only functions of organization of arbitrations, has no jurisdictional powers and does not intervene in the jurisdictional mission of the arbitrators, so that the impartiality of Mr. Z. cannot be legitimately suspected; whereas the ground of appeal is unfounded;

On the second ground:

Whereas Mr. X. objects to the judgment which rejected his action for annulment brought against the arbitral award of 23 January 2006;

Whereas, regarding the violation of international public policy, only the recognition or enforcement of the award is examined by the annulment judge with regard to the compliance of the decision with said public policy, whose review is limited to the flagrant, effective and concrete nature of the alleged violation; the judgment holds that the application of the rules of law by the arbitrator to the merits of the dispute is beyond the review of the annulment court. Moreover, no complaint is made on the transposition of Community Directive 86 / 653 of 18 December 1986 on self-employed commercial agents. In fact, the arbitrator expressly referred to it in his award, through the Swedish law 1991 / 351, whose application by the arbitrator has not been lacking with regards the agent’s right for compensation, as the granting of this right is subject to conditions that are up to the arbitrator alone to verify; that the Court of Appeal, which proceeded - within the limits of its powers, i.e. without reviewing the merits of the arbitral award - to review the award with regard to the application of the European community rule concerning independent commercial agents, precisely stated that its recognition was not contrary to international public policy; that the ground of appeal is unfounded;

FOR THESE REASONS:

DISMISSES the appeal;

Orders Mr. X. to pay the costs;

In view of Article 700 of the Code of Civil Procedure, dismisses Mr. X.’s application and orders him to pay the company Trioplast AB the sum of € 3,000;

Thus ordered and judged by the Court of Cassation, First Civil Chamber, and pronounced by the President at a public hearing on the eleventh of March two thousand and nine.