Court of Cassation, No. 11-25.891

Court of Cassation, First Civil Chamber, 7 November 2012, No. 11-25.891

IAKOVOGLOU PROMODOS

OEBE TH THOTOU

Vs.

AMPLITUDE

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

On the sole ground:

Having regard to the Articles 1502-1 and 1504 of the Code of Civil Procedure as they were before the decree of 13 January 2011;

Whereas, according to the judgment under appeal, the company Amplitude, whose head office is in France, has, by contract of 1 March 2004, in which an arbitration clause is stipulated, entrusted to the company Oebe TH Thotou and co, whose registered office is in Greece, the distribution of orthopaedic prostheses on Greek territory; that the company Iakovoglou Promodos and co, linked to the previous one by capital and management affinity, their headquarters being located in Greece, also distributed the products of the company Amplitude on Greek territory, after having placed various orders; that disputes having arisen between the parties, by letter dated 21 September 2007, the company Amplitude has notified Oebe TH Thotou of the termination of the contract; that the companies Iakovoglou Promodos and Oebe TH Thotou have consequently implemented the arbitration agreement; that the sole arbitrator issued an award on 7 October 2009, declaring himself competent to rule on the claims of the two Greek companies, and condemning the company Amplitude to pay them various sums ;

Whereas, in order to state that the sole arbitrator has ruled without an arbitration agreement, and in order to annul the arbitral award, the judgement holds that the arbitration clause stipulated in the contract of 1 March 2004 cannot be extended to the company Iakovoglou Promodos, which carried out the product distribution activity of the company Amplitude outside the contractual scope linking it to the company Oebe TH Thotou ;

That in so ruling, whereas the judgment states that the company Iakovoglou Promodos substituted the company Oebe TH Thotou for the execution of the distribution contract, thus the effect of the international arbitration clause contained in the initial contract is extended to the parties directly involved in the execution of the contract, therefore the court of appeal violated the aforementioned texts;

FOR THESE REASONS:

QUASHES AND ANNULS, in all its provisions, the judgment delivered on 12 May 2011, between the parties, by the Court of Appeal of Grenoble; consequently, returns the case and the parties to the state they were in before the said judgment, and in order to be upheld, refers them to the Court of Appeal of Lyon;

Orders the company Amplitude to pay the costs;

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

States that at the request of the Public Prosecutor at the Court of Cassation, the present judgment will be transmitted to be transcribed in the margin or following the quashed judgment;

Thus done and judged by the Court of Cassation, first Civil Chamber, and delivered by the President in his public hearing of seven November two thousand and twelve.