Court of Cassation, No. 12-26.597

Court of Cassation, First Civil Chamber, 29 January 2014, No.12-26.597

Challenged decision: Paris Court of Appeal, Pole 1, First Chamber, 12 June 2012, No. 10/22161

THE REPUBLIC OF CONGO

vs.

COMMISSION IMPORT EXPORT S.A. (COMMISIMPEX)

The Court of Cassation, first civil chamber, delivered the following judgment:

Whereas, according to the judgment under appeal (Paris, 12 June 2012), the Congolese company COMMISSION IMPORT EXPORT S.A. and the Republic of Congo, which between 1984 and 1986 concluded various public works and equipment supply contracts, including choice of forum clauses, signed a “protocol” on 14 October 1992, which set out the terms and conditions for the payment of certain sums remaining due and stipulated an arbitration clause; that the company COMMISSION IMPORT EXPORT S.A., accusing the Republic of Congo of not having honoured its commitments, implemented the arbitration agreement and that an award of 3 December 2000 ordered the Republic of Congo, together with the Congolese Sinking Fund, to pay a certain sum to the company COMMISSION IMPORT EXPORT S.A.; that, by request of 3 September 2001, the latter submitted a request for expert appraisal to the President of the Commercial Court of Brazzaville; that, on 23 August 2003, the parties concluded a second “protocol” for the settlement of the debts which were the subject of the 1992 protocol, as well as other debts; the company COMMISSION IMPORT EXPORT S.A. used of the arbitration agreement stipulated in the 1992 protocol to claim an order for payment from the Republic of Congo, and an arbitral tribunal declared it had jurisdiction by a partial award rendered in Paris; that the Republic of Congo filed an action for the annulment of the award;

On the first ground, taken in its various parts, hereafter annexed:

Whereas the Republic of Congo objects to the judgment under appeal which rejects its action for annulment of the arbitral award;

Whereas the decision notes, on the one hand, that the Republic of Congo and the COMMISSION IMPORT EXPORT S.A. signed a “protocol agreement” in 1992 concerning the settlement of all the debts, it lists, resulting from contracts concluded between them from 1984 to 1986 and providing for choice of forum clauses. On the other hand, the judgement under appeal notes that the parties replaced all previous agreements with the 1992 agreement which included an arbitration clause; that, after holding that the 2003 protocol had its origin in the failure to comply with the first, of which it was the complement, the court of appeal, which did not have to carry out the allegedly omitted search and did not disregard the subject-matter of the dispute, deduced exactly from this that the second agreement fell, in the absence of stipulations to the contrary, within the scope of the arbitration agreement stipulated by the parties in the earlier protocol. So the arbitral tribunal had jurisdiction; hence it follows that the ground of appeal cannot be upheld;

On the second ground, hereinafter annexed:

Whereas the same objection is made to the decision;

Whereas, having held that, if it resulted from the statements in the order of the president of the Brazzaville commercial court that the company COMMISSION IMPORT EXPORT S.A. verbally filed applications on the merits. This domestic judge, referred by petition, could only order, according to Congolese law, protective and investigative measures, and considered with discretion that this company did not waive the benefit of the arbitration agreement. So the court of appeal legally justified its decision;

FOR THESE REASONS:

REJECTS the appeal;

Orders the Republic of Congo to pay the costs;

Pursuant to Article 700 of the Code of Civil Procedure, rejects its request and orders it to pay the company Commissions import export the 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 twenty-nine January two thousand and fourteen.