Court of Cassation, No. 11-27.199

Court of Cassation, First Civil Chamber, 19 December 2012, No. 11-27.199

Challenged decision: Rennes Court of Appeal, 27 September 2011

LAVAL DISTRIBUTION STE

SAS NICODIS

vs.

EAGLE AVIATION FZC

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

On the two grounds joined together, taken in their various parts, hereinafter annexed:

Whereas, according to the judgment under appeal (Rennes, 27 September 2011), the companies LAVAL DISTRIBUTION and NICODIS, as well as the company HAM LOC, have formed with Messrs. and Mrs. X…, Eagle Aviation SA France, for the operation of an Airbus A300; since difficulties arose between them, they implemented the arbitration clause inserted in Article 47 of the Articles of Association of Eagle Aviation SA France; that, by a first award of 9 June 2009, the arbitral tribunal, ruling as amiable compositeur, ordered EAGLE FZC SHARJAH to pay a certain amount to the companies LAVAL DISTRIBUTION and NICODIS, declared it had jurisdiction to rule on the confusion of assets between the companies EAGLE FZC SHARJAH and EAGLE TORTOLA, and ordered an expertise; that, by order of 29 July 2009, the President of the Tribunal of Grande Instance of Saint-Nazaire granted the enforcement (in French Exequatur) of the award; that the Chairman of the Arbitral Tribunal, by procedural orders of 22 September 2009, said in particular, that the arbitral proceedings continued despite the action for annulment of the first award, and that on 5 February 2010, the mission of the expert was extended by the parties and that from this extension, that of the arbitration period itself was deducted; that, by decision of 30 March 2010, the President of the Tribunal of Grande Instance of Saint-Nazaire ordered the extension of the arbitration period by further six months, i.e. until 26 October 2010; that, by a second award issued on 22 October 2010, the arbitrators stated that the assets of Mr Manuel X… , the companies Eagle FZC Sharjah, Eagle Tortola and Eagle Aviation Jeddah were undistinguishable and ordered Mr Manuel X to pay a certain amount to the companies LAVAL DISTRIBUTION and NICODIS; that the enforcement (in French Exequatur) of the award was granted by decision of 10 November 2010;

Whereas LAVAL DISTRIBUTION and NICODIS object to the judgement under appeal which set aside the arbitral awards of 9 June 2009 and 22 October 2010, the orders of the President of the Saint-Nazaire Regional Court of 29 July 2009, 30 March 2010 and 10 November 2010, and the orders of the President of the Arbitral Tribunal of 22 September 2009 and 5 February 2010;

Whereas it is by an exclusive interpretation of denaturation, made necessary by the obscure terms of the arbitration clause, by retaining that the corporate matters covered by the latter are those which relate to the functioning of the decision-making and executive bodies of the company and the relations of the contracting parties, and that disputes relating to the leasing of the Airbus and its operation, contracts concluded between third parties or between shareholders and third parties, such as the contract concluded for the purchase of the Pilatus aircraft, were not covered by this provision, the Court of Appeal, without conducting a search which was not requested of it, found that the arbitrators ruled without an arbitration agreement; that the first ground of appeal is unfounded;

That the second ground, which objects to a superabundant plea, cannot be accepted;

FOR THESE REASONS,

DISMISS the appeal;

Orders the companies Laval Distribution and Nicodis to pay the costs;

Having regard to Article 700 of the Code of Civil Procedure, dismisses the application of the companies Laval Distribution and Nicodis and orders them to pay the company Eagle Aviation FZC and consorts X… the global sum of 3,000 euros;

Thus, done and judged by the Court of Cassation, First Civil Chamber, and pronounced by the president in its public hearing of the nineteenth of December two thousand and twelve.