Paris Court of Appeal, No. 12/19130

Paris Court of Appeal, First Chamber, 11 February 2014, No. 12/19130

PEZZULLO MOLINI PASTIFICI MANGIMIFICI SPA (MOLINI)

Vs.

F.LLI POLISI SPA (POLISI)

Following a dispute concerning the existence and performance of a Spanish durum wheat sales contract dated 29 September 2008 between the Italian company F.LLI POLISI SPA (POLISI) and the Italian company PEZZULLO MOLINI PASTIFICI MANGIMIFICI SPA (MOLINI), the former filed a request for arbitration with the Arbitration Chamber of Paris on 25 February 2009.

On 30 June 2009, a first-degree arbitral tribunal issued a draft award condemning MOLINI to pay various sums to POLISI.

On 20 July 2009, MOLINI requested the examination of the case in the second degree.

It is under these conditions that, under the aegis of the Arbitration Chamber of Paris, the arbitral tribunal, composed of Messrs. D E, F-G H, B C and MIs. I-J K, arbitrators as well as Mr. D METTOUX, Chairman, rendered an award in Paris on 30 October 2009, in which it found itself competent and ordered MOLINI to pay POLISI the principal sum of €196,623.40 plus interest and €24,208.32 for costs incurred by POLISI, the sum of €5.000 in accordance with article 700 of the code of civil procedure as well as the arbitration costs.

This award has been given exequatur.

On 24 October 2012, MOLINI filed an appeal for the annulment of this award.

By submissions dated 21 March 2012, served on 17 April 2013, the appellant seeks the annulment of the award issued on 30 October 2009, requests the court to declare that it does not have jurisdiction to rule on the merits of the dispute and to order POLISI to pay €20,000 pursuant to Article 700 of the Code of Civil Procedure.

It claims firstly that the arbitral tribunal was wrongly declared competent (article 1520-1 of the code of civil procedure) and secondly that the arbitral tribunal violated its mission (article 1520-3) or the principle of due process (article 1520-4).

POLISI, although duly summoned by deed of 17 April 2013, did not appoint a lawyer.

UPON WHICH;

On the first ground of annulment alleging that the arbitrators ruled without an arbitration agreement (article 1520-1 of the code of civil procedure in reality old article 1502-1 of the code of civil procedure)

MOLINI claims hat in the absence of explicit acceptance as provided by Italian law, the arbitration clause is non-existent, in the absence of a contract binding the parties, and in the state of an offer to which the purchaser has not replied. The return of an e-mail accompanied by a bank statement by an employee not authorized to negotiate cannot be considered as acceptance. MOLINI adds that in any event, the offer which was addressed to it referring to the Incograin regulation N° 12 CIF Maritime, does not include an arbitration clause, the legality of the clause by reference not being recognized in Italian law. MOLINI concludes that the arbitral tribunal erroneously assumed jurisdiction.

Whereas the court of appeal reviews the decision of the arbitral tribunal regarding its jurisdiction by looking for all the elements of law or of fact which allow the existence of the arbitration agreement to be assessed;

Whereas, by virtue of a substantive rule of international arbitration law applicable to an arbitration whose seat is fixed in France, the arbitration clause is legally independent of the main contract containing it. Therefore, its existence and effectiveness are to be assessed, subject to the conditions of international public policy, and according to the common will of the parties, without it being necessary to refer to a state law. It is therefore not necessary, in order to assess the validity of the disputed stipulation, to take into consideration the Italian law;

Whereas in the present case, with regard to the contract signed and addressed by POLISI and the e-mail sent by MOLINI explicitly referring to the contract and containing its bank details, the counter-claim by reference to the Incograin regulation was validly agreed between the parties;

That this ground of annulment must therefore be rejected;

On the second ground of annulment taken from the arbitrators' failure to comply with their mission (article 1520-3 of the code of civil procedure in reality old article 1502-3 of the code of civil procedure) or from the violation of the principle of due process (in French Principe de la contradiction) (1520-4 in reality old article 1502-4 of the code of civil procedure)

MOLINI claims that the arbitrators, who did not settle the question of the law applicable to the commercial relationship between the two Italian companies to determine the existence and the validity of the arbitration agreement, and who merely applied principles in an arbitrary manner, have not respected their mission. MOLINI adds that even if this question was not in the debate, it was up to the arbitrators to solicit the parties' choice of law, and by failing to do so, they violated the principle of due process.

Whereas, as has been said, the reference to a state law is irrelevant in deciding the question of the existence and validity of the arbitration agreement. It follows that the arbitrators cannot be accused of any violation of their mission or of the principle of due process in this respect;

That both of the grounds for annulment must therefore be rejected;

Consequently, the action for annulment is dismissed;

On the claim made under article 700 of the Code of Civil Procedure.

Whereas MOLINI, who is unsuccessful, could not benefit from these provisions;

FOR THESE REASONS:

Dismisses the appeal filed against the award rendered between the parties on 30 October 2009.

Dismisses the company PEZZULLO MOLINI PASTIFICI MANGIMIFICI SPA of its request made in application of article 700 of the code of civil procedure.

Orders it to pay the costs.