Court of Cassation, No. 09-10.530

Court of Cassation, First Civil Chamber, 6 October 2010, No. 09-10.530

Challenged decision: Paris Court of Appeal, 25 September 2008, No. 07/10356

ALBERT ABELA

Vs.

SOCIETE LA ROUNDHILL TRUST

THE COURT OF CASSATION, FIRST CIVIL CHAMBER, rendered the following judgment:

On the sole ground, taken in its six branches, hereafter annexed:

Whereas Mr. Edwin, Mr. Albert and Mr. Joseph X… signed a protocol on 1st May 1979 providing for the establishment of a holding company in Liechtenstein bringing together their activities throughout the world. According to this protocol, each party is able to allocate its shares to a family foundation. The articles of association of the holding, Albert X… Corporation (AAC), included an arbitration agreement. Mr. Joseph and Mr. Albert X… each set up a family foundation, Joseph X… Family Foundation (JAFF) and Albert X… Family Foundation (AAFF) and bought back the shares of their brother Edwin. Following the death of Albert X…, major differences arose between his sons, Mr. Albert Martin and Mr. Marlon X… and their mother, Mrs. Bärbel X… (the consorts X…) who signed on 26 April 2000 a “settlement agreement”, also ratified by the AAFF, which was submitted, in principle, to the Board of Directors of the AAC and to the General Assembly. The execution of this agreement, in particular by consorts X…, resulted in the sale of the assets of the AAC. JAFF initiated arbitration proceedings and a first partial award ruled on the applicable law and on the arbitrability of the dispute. A second partial award of 22 May 2008, set aside by a judgment of the Paris Court of Appeal dated 22 May 2008, stated that consorts X… were not bound by the arbitration agreement, the court having no jurisdiction over them. By award dated 14 February 2007, subject to an action for annulment by JAFF, the tribunal ruled that the applications for annulment of the CAA’s deliberations were time-barred;

Whereas JAFF objects to the judgment under appeal (Paris, 25 September 2008), which dismissed the action for annulment brought against the partial award;

Whereas the judgment notes that the arbitrators found that the claims were time-barred under the law of Lichtenstein, chosen by the parties, because the period of one month plus one month to challenge the deliberations of the general meeting was not respected although JAFF was present or could have been aware of the decisions during the period. As there was no breach of Article 6 of the European Convention on Human Rights and no violation of international public policy that ought to have been flagrant, effective and concrete, the Court of Appeal was able to deduce, without distortion, that JAFF was in fact seeking a review of the merits of the award, which the annulment judge was prohibited from doing. The ground of appeal is unfounded;

FOR THESE REASONS:

DISMISSES the appeal;

Orders JAFF to pay the costs;

In view of Article 700 of the Code of Civil Procedure, dismisses the applications;

Thus, done and judged by the Court of Cassation, First Civil Chamber, and pronounced by the president in its public hearing of the sixth of October two thousand and ten.