Paris Court of Appeal, No. 10/-11.062

Paris Court of Appeal, First Pole, First Chamber, 9 June 2011, No. 10/-11.062

General partnership D E

vs.

AGRICULTURAL COOPERATIVE COMPANY NOURICIA

The French agricultural cooperative company NOURICIA (NOURICIA) and the Italian GP (general partnership) D E (hereinafter DE) entered into five sales contracts in 2008 through the merchandise broker A Y LLC for the purchase of wheat by the latter from the former.

On 12 November 2008, after negotiations through Y, the parties decided to terminate two of the contracts by repurchase fixing the price differences and their payment deadlines and consequently, two confirmations of contracts no. 08111202 and 08111203 were drawn up on the same day by Y.

On 20 November DE paid a deposit of EUR 22,000.

As the latter subsequently disputed the validity of the invoices, NOURICIA referred the matter to the Arbitration Chamber of Paris pursuant to an arbitration clause contained in the confirmations of the disputed contracts.

By award issued in Paris on 5 June 2009, which became a final award on 29 July 2009 with provisional enforcement, the arbitral tribunal composed of Philippe Chaudron, Chairman, and B C and Z A, arbitrators, declared itself competent, considered that the market confirmations drawn up by Y as contracts in due form were binding to the parties, dismissed all of DE’s claims and, in particular, the one requesting to have the Turin Civil Court declared competent, and ordered D E to pay NOURICIA the balance of the termination invoices and the invoices for differences in price, in addition to interest at the statutory rate, damages under Article 1153 paragraph 4 of the Civil Code, compensation under Article 700 of the Code of Civil Procedure and arbitration costs.

DE brought an action for annulment against this award.

Claiming that it had never signed an arbitration clause or an arbitration agreement and that the arbitral tribunal had therefore ruled without an arbitration agreement (Article 1502-1 of the Code of Civil Procedure), D E requested the court, by submissions of 25 May 2010, to annul the award and to order NOURICIA to pay EUR 4,000 pursuant to Article 700 of the Code of Civil Procedure.

By submissions of 17 March 2011, NOURICIA requests the court to dismiss the claimant and to order D E to pay EUR 4,000 pursuant to Article 700 of the Code of Civil Procedure.

UPON WHICH,

On the sole ground for annulment: the arbitral tribunal ruled without an arbitration agreement (Article 1520-1 of the Code of Civil Procedure):

D E states that Article 1443 of the Code of Civil Procedure requires that the arbitration clause be stipulated in writing, that in the present case the arbitration clause, if it exists, is not contained in a writing signed by the contracting party, whereas according to Articles 1 and 2 of the New York Convention of 10 June 1958 a ‘written agreement’ is a document signed by the parties and that Y, not being its agent, could not bind it by its signature.

Whereas the claimant’s complaint under Article 1502-1 of the Code of Civil Procedure is analyzed in the same way as the one provided for by Article 1520-1 of the Code of Civil Procedure in the wording of Decree 2011-48 of 13 December 2011 on the reform of arbitration;

Whereas the contracts were concluded under Incograin’s terms and conditions through a broker; whereas D E is a professional in the grain trade to which these terms and conditions apply; whereas it vainly invokes the New York Convention of 10 June 1958, which is not applicable here, to claim the need for a written document signed by the parties; whereas the seven written confirmations of contracts all referred to Incograin’s general terms and conditions and specified ‘Arbitration clause: all disputes arising in connection with the present case, even those concerning its existence and validity, shall be judged in the last resort by arbitration, organized by the Arbitration Chamber of Paris (…), in accordance with the rules of the latter which the parties declare they know and accept’; that DE did not express any reservations at the receipt of these confirmations, the existence and terms of which it does not dispute; that, on the contrary, it has commenced performance of the disputed confirmations by paying a deposit of EUR 22,000;

It follows that, regardless of the absence of signature of confirmations no. 08111202 and 08111203 of 12 November 2008, the arbitration clause expressly provided for by these contracts in application of the Incograin conditions is therefore binding to the parties;

That the ground is rejected as is the action for annulment;

On the applications under Article 700 of the Code of Civil Procedure:

Whereas D E, who is unsuccessful and whose application on this ground is rejected, is ordered to pay NOURICIA the sum of EUR 4,000;

FOR THESE REASONS:

DISMISSES the appeal;

CONDEMNS GO D E to pay EUR 4,000 to ACC NOURICIA;

REJECTS any other application;

CONDEMNS GP D E to pay the costs and admits SCP Patricia Hardouin, avowed, to the benefit of article 699 of the Code of Civil Procedure.