Court of Cassation, No. 11-17.736 | Rory Wheeler, avocat (Paris) & solicitor (England)

Court of Cassation, First Civil Chamber, 6 November 2013, No. 11-17.736

BIOALLIANCE PHARMA

vs.

SPEBIO BV

SPEPHARM HOLDING BV

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

Whereas, according to the contested judgment (Paris, 5 May 2011), on 7 March 2007, the French company Bioalliance Pharma (the “Bioalliance” company), whose business is to develop and market pharmaceutical products, has entered into a governing agreement with Spepharm Holding (Spepharm), a Dutch company, in order to ensure the distribution in Europe, excluding the French territory, of a medication that is the subject of various patents, trademarks and marketing authorizations (MA), of which it is the owner; the framework agreement, which included an arbitration clause, provided for the creation of a joint venture, called Spebio, to which Bioalliance would grant an exclusive right to use the MA in the territory concerned, as well as exclusive licenses to use the patent, know-how and trademark; that the main terms and conditions of these various transactions were set forth in the annexes to the framework agreement, which led to the formation of Spebio on May 31, 2007, and the conclusion of the contracts set forth in the annexes; that, as a result of the disputes between the parties, on March 24, 2009, Bioalliance filed a request for arbitration with the International Chamber of Commerce (ICC), based on the arbitration clause stipulated in the framework agreement; that, by an interim award rendered in Paris on 8 April 2010, the arbitral tribunal declared that it had no jurisdiction to hear the case regarding the contracts concluded on 31 May 2007 and dismissed the case against Spebio, since the latter was not a party to the framework agreement;

On the first ground, hereinafter attached:

Whereas Bioalliance complains that the judgment rejects its action for annulment against the interim award and allocates a certain amount to Spepharm and Sebio under Article 700 of the Code of Civil Procedure;

Whereas, on the one hand, Bioalliance, did not argue that the arbitral tribunal had failed to abide by its mission by not declaring inadmissible the plea of lack of jurisdiction raised by Spepharm, but limited itself to reproaching the tribunal for not having examined the non-admissibility plea which it had objected to the plea of lack of jurisdiction that it had raised, therefore, the ground, which is new and varied in fact, is inadmissible;

Whereas, on the other hand, after having found that the contracts subsequent to the framework contract provide that they replace all preceding agreements, the judgment notes that it does not follow from the information provided by the parties during the arbitration proceedings on the conditions of negotiation and performance of the contracts that the common intention of the parties was to have the arbitration clause of the governing agreement prevail over the dispute settlement provisions of the other contracts; that, on the contrary, the different choice of court clauses corresponded to the will of the parties to treat the different aspects of their contractual relations in a differentiated manner, for reasons of geographical proximity or adequacy of the substantive rules to the subject matter; that in the light of these findings and sovereign assessments, from which it follows that the specific dispute settlement clauses were an obstacle, in their respective fields, to the application of the arbitration clause in the framework contract, the court of appeal, which did not ignore the subject matter of the dispute, deduced exactly that it was without disregarding their mission that the arbitrators had decided that they were incompetent with regard to any contract other than the governing agreement;

Hence it follows that the ground, which cannot be accepted in its first branch, is not founded on the rest;

And on the second and third grounds:

Whereas these grievances are not such as to allow the admission of the appeal;

FOR THESE REASONS:

DISMISSES the appeal;

Condemns Bioalliance Pharma to pay the costs;

Pursuant to Article 700 of the Code of Civil Procedure, orders it to pay Spepharm Holding BV and Spebio BV the total sum of 2,500 euros and rejects its request.

Thus made and judged by the Court of Cassation, first civil chamber, and pronounced by the president in public hearing of six November two thousand and thirteen.