Paris Court of Appeal, No. 10-22.161

Paris Court of Appeal - 1st Pole - 1st Chamber - 12 June 2012, No.10-22.161

COMMISIMPEX (COMMISIMPEX) vs. THE REPUBLIC OF CONGO

The Congolese company COMMISIMPEX (COMMISIMPEX) and the REPUBLIC OF CONGO (the ROC) concluded from 1984 to 1986 various public works and supply contracts financed by loans granted by the former to the latter. On 14 October 1992, the two parties concluded a protocol which set out the terms and conditions for the payment of certain outstanding sums and stipulated an arbitration clause under the aegis of the International Chamber of Commerce. An arbitral award rendered on 3 December 2000 on the basis of this clause ordered ROC to pay various sums to COMMISIMPEX. A second protocol, which did not include an arbitration clause, was signed on 23 August 2003 for the settlement of the debts covered by the 1992 protocol as well as other debts not included therein.

In April 2009, COMMISIMPEX, availing itself of the arbitration clause stipulated in the 1992 Protocol, lodged a request for arbitration with the International Chamber of Commerce concerning the sums remaining due under the 2003 Protocol.

By a partial award rendered in Paris on August 20, 2010, the arbitral tribunal composed of Mr. A, Chairman, Mr. X and Ms. Z, arbitrators, declared itself competent to settle the dispute.

The ROC appealed against this award.

By pleadings of 27 October 2011, it seeks the annulment of the decision and an order that COMMISIMPEX pay it the sum of EUR 20,000 pursuant to Article 700 of the Code of Civil Procedure. It claims that the arbitrators ruled without an arbitration agreement or on the basis of a null or expired agreement (Article 1502-1 of the Code of Civil Procedure).

By conclusions of 26 January 2012, COMMISIMPEX requested that the appeal be dismissed and that ROC be ordered to pay him the sum of EUR 100,000 pursuant to Article 700 of the Code of Civil Procedure.

UPON WHICH:

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

The ROC maintains, on the one hand, that the arbitrators applied to the two protocols of 1992 and 2003 an erroneous conception of the theory of the contractual whole in order to extend to the second the effects of the arbitration clause stipulated by the first, and, on the other hand, that they had mistakenly refused to consider the action brought by COMMISIMPEX before the Congolese state courts as a renunciation of the benefit of the arbitration clause.

Whereas the annulment judge shall review the decision of the arbitral tribunal on its jurisdiction, reviewing all elements of law and fact allowing to appreciate the existence and the scope of the arbitration agreement;

Whereas, first, for the settlement of part of the debts resulting from public works and supply contracts concluded between ROC and COMMISIMPEX from 1984 to 1986, the parties signed the protocol of 14 October 1992; whereas this protocol consolidates all the debts it lists, determines the terms of their settlement by the issue of promissory notes denominated by the Congolese Amortization Fund and endorsed by the Ministry of the Economy of the ROC, and finally, provides for the rules for calculating interest;

That it stipulates in its Article 10: ‘In the event of a dispute concerning the interpretation, execution or any other difficulties between the Parties in relation to this Memorandum of Understanding, the Parties agree to consult each other with a view to reaching an amicable settlement; if they fail to do so, the dispute shall be resolved by one or more arbitrators appointed in accordance with the Rules of Arbitration of the International Chamber of Commerce (Paris) ruling in the first and last resort’;

Whereas the protocol signed on 23 August 2003 focuses on the consolidation and clearance of a set of debts, including those already covered by the 1992 protocol and which remained unpaid following an arbitral award of 3 December 2000, as well as other debts not included in the previous protocol;

Whereas, in the absence of the stipulation in the 2003 Protocol of a specific dispute settlement clause, this second agreement, which originates from the failure to comply with the first, of which it is the complement, falls within the scope of the arbitration clause stipulated therein;

That the ROC claims unsuccessfully that the choice of court clauses provided in the original contracts, as well as in a protocol concluded on 27 June 1987 for the payment of the price of one of those contracts, would constitute an obstacle to the extension to the 2003 protocol of the arbitration agreement stipulated by the 1992 protocol, since the latter expressly states, in its article 8, that it replaces all the agreements previously concluded between the parties;

Whereas it follows from the foregoing that the ground of appeal in its first branch must be dismissed;

Whereas, secondly, the parties to an arbitration agreement may waive its benefits; that such waiver may be implicit, as long as it is certain and unequivocal; that it may in particular be deduced from the fact that one of the parties has referred the matter to the State courts, on condition that it concerns a claim that should have been submitted to arbitration;

Whereas the ROC maintains that such a waiver results in the present case from the application submitted on 3 September 2001 by COMMISIMPEX to the President of the Commercial Court of Brazzaville, which aimed not only at the appointment of an expert to act on behalf of the parties following the arbitral award of 3 December 2000, but also at ordering the ROC to pay the sums assessed by the court, which, after expert assessment, effectively ordered the corresponding claims to be entered in the books of the reimbursement fund;

However, considering that by a decision of 27 June 2003, the Supreme Court of the Republic of Congo overturned the confirmatory judgment of the Brazzaville Court of Appeal by holding that the judges had pronounced proper condemnations, whereas the president of the commercial court, seized on the basis of article 219 of the code of civil, commercial, administrative and financial procedure, could only order, on request, protective and investigatory measures that did not prejudice the rights of third parties;

That, therefore, COMMISIMPEX, who had referred the matter to the state court by request, on this legal basis, cannot be regarded as having unequivocally waived the benefit of the arbitration agreement, even if the Brazzaville Commercial Court states that after the expert’s report had been filed it made oral submissions on the merits;

Whereas it follows from all the foregoing that the ground of appeal, in its two branches, cannot be accepted;

On Article 700 of the Code of Civil Procedure:

Whereas the ROC, whose claim fails, cannot benefit from these provisions; whereas it will be condemned on this basis to pay COMMISIMPEX the sum of EUR 20,000;

FOR THESE REASONS:

Dismisses the action for annulment of the partial award rendered between the parties on 20 August 2010.

Dismisses the REPUBLIC OF CONGO’s application pursuant to Article 700 of the Code of Civil Procedure.

Condemns the REPUBLIC OF CONGO to pay the company COMMISSION IMPORT EXPORT SA the sum of 20,000 euros in application of article 700 of the code of civil procedure.

Condemns the REPUBLIQUE DU CONGO to pay the costs and admits SCP Duboscq et Pellerin to the benefit of article 699 of the code of civil procedure.

THE CLERK THE PRESIDENT