Paris Court of Appeal, No. 10/05314

Paris Court of Appeal, Pole 1 - Chamber 1, 5 May 2011, No. 10/05314

ND GIDA VE TEMIND GIDALIK MAD DAGTIM A.S.

Vs.

S.A.R.L SOMERCOM

The company SOMERCOM S.A.R.L, acquired from the company ND GIDA VE TEMIND GIDALIK MAD DAGTIM A.S (ND GIDA), a company under Turkish law trading in peeled hazelnuts from Turkey, 380 tons of these goods according to three purchase orders of 7 and 15 June and 4 July 2000 stipulating under special conditions ‘according to the conditions of the Waren-Verein der Hamburger Börse E.V. whose arbitration and their arbitrators will settle definitively all disputes’.

An arbitration procedure relating to the payment of the price of this purchase has been initiated by ND GIDA.

On 29 November 2001 in Y, a partial arbitral award was rendered by the Waren-Verein der Hamburger Börse E.V. This award ordered SOMERCOM to pay ND GIDA the sum of USD 348,600 for unpaid invoices together with interest of 2% in addition to the basic interest rate per annum. The award mentioned that ND GIDA reserves the right to assert more extensive rights to interest on the grounds that, due to SOMERCOM’s late payment, it had recourse to a credit which it contracted with FINANSBANK A.S. from 21 February 2001 at a rate of 25% per annum,

On 8 March 2002, SOMERCOM executed this partial award.

On 14 March 2002 in Y, the arbitral tribunal issued a final award dismissing SOMERCOM’s main counterclaim, ordering ND GIDA to pay interest to SOMERCOM of 2% above the basic interest for the sum of US$ 50,380 as of 5 July 2001, dismissing the remainder of the subsidiary counterclaim and ordering SOMERCOM to repay ND GIDA for the costs of the arbitral tribunal.

SOMERCOM appealed this award.

On 13 November 2002, ND GIDA transferred its claim against company SOMERCOM to the Turkish company A B E F G H A.S., as well as all diverse claims of the assignor against the debtor due and accruing, subject to the claims arising from A’s diverse rights, claims for damages and additional claims to be made, as well as diverse claims arising from these actions.

On 25 November 2003 the ‘over-arbitration’ tribunal of the Waren-Verein der Hamburger Börse E.V. upheld the award of 14 March 2002.

SOMERCOM settled the convictions against it.

On 11 January 2005, ND GIDA initiated a new arbitration proceeding against SOMERCOM.

On 18 December 2008, an arbitral award was rendered in Y and rectified on 8 January 2009 by the Arbitration Court of the Waren-Verein der Hamburger Börse E.V. ordering SOMERCOM to pay to ND GIDA the sum of TRY 353,746.28, stating that the arbitration costs shall be paid equally by the parties and ordering SOMERCOM to pay to ND GIDA the sum of € 12,833.87 in arbitration costs.

By order of 8 January 2010 notified to SOMERCOM on 15 February 2010, the President of the Paris Civil High Court (in French Tribunal de Grande Instance de Paris) declared enforceable the arbitral award of 18 December 2008 and the corrective award of 8 January 2009.

Considering the appeal filed by SOMERCOM against this order and its submissions of 17 January 2011, in which SOMERCOM requests under Articles 1502 and 1503 of the Code of Civil Procedure, of:

• Declare that it is admissible to raise the absence of an arbitration agreement in support of its action for annulment of the enforcement order (in French Ordonnance d’exequatur),

• Declare that the court has jurisdiction to rule on the action for annulment of SOMERCOM in accordance with Article 1502 of the Code of Civil Procedure,

• Find that the arbitral tribunal ruled without an arbitration agreement within the meaning of Article 1502-1 and at least on the basis of an arbitration agreement whose effects have been exhausted,

• Order the annulment of the enforcement order (in French Ordonnance d’exequatur) issued on 8 January 2010 by Paris Civil High Court (in French Tribunal de Grande Instance de Paris),

• Reject all of ND GIDA ’s claims and order ND GIDA to pay it €10,000 exclusive of tax under Article 700 of the Code of Civil Procedure;

Having regard to the conclusions of 4 November 2010 of ND GIDA to the confirmation of the exequatur order, dismissing the opposing claims and ordering SOMERCOM to pay him € 10,000 under Article 700 of the Code of Civil Procedure;

UPON WHICH,

On the sole ground: the arbitrator ruled without an arbitration agreement or on a null or expired agreement (Article 1502-1 of the Code of Civil Procedure)

SOMERCOM maintains that the arbitral tribunal wrongly declared that it had jurisdiction on the basis of an arbitration clause referred to in confirmations n°22839, 22850 and 22876 relating exclusively to the contractual relationship resulting from the purchase of peeled hazelnut from ND GIDA to rule on a dispute relating to bank interest for loans taken out by the latter on account of its financial difficulties, whereas this arbitration clause was manifestly inapplicable to the dispute at issue, which concerns arbitration proceedings No. 2/05.

SOMERCOM also argues that, assuming that the arbitral tribunal had ruled on an existing arbitration agreement, its effects were in any event expired. It considers that ND GIDA was not entitled to make its claim for repayment of interest on loans in a separate arbitral proceeding, whereas it is incumbent on the claimant to bring all claims based on the same cause in the same proceeding. It observes in this respect that it is not explained how the second arbitration procedure initiated would be based on a separate case.

But considering on the first part of the ground, that the arbitration clause contained in the aforementioned confirmations which refers to ‘all dispute’ is drafted in very broad terms and that reservations were expressed in the preliminary proceedings with regard to prejudice interests other than that relating to the interest for late payment of the goods, concerning the interest on the bank loans taken out by ND GIDA due to the non-payment on time of the goods sold to SOMERCOM; that consequently the arbitral tribunal did not rule without an arbitration agreement;

Considering on the second part, that the principle of concentration of means, which requires the party referring the case to the arbitral tribunal to consolidate its claims under the same contract in one and the same procedure, is inapplicable in the international order; that it follows that the ground that the arbitral tribunal ruled on an arbitration agreement whose effects had expired is rejected;

On other requests,

Whereas the claimant, who is unsuccessful, is ordered to pay the costs and its application under Article 700 of the Code of Civil Procedure is dismissed;

Considering that the sum of 5.000 € is allocated to A B E F G H A.S. on the basis of this article;

FOR THESE REASONS,

UPHOLDS the enforcement order;

Orders the company SOMERCOM to pay ND GIDA. the sum of € 5,000 under Article 700 of the Code of Civil Procedure;

Orders it to pay the costs and admits the SCP FISSELIERCHILOUSOMERCOM- BOULAY, confessed, at the benefit of article 699 of the code of civil procedure.