Court of Cassation, No. 13-22.391

Court of Cassation, First Civil Chamber, 18 March 2015, No. 13-22.391

WINDMÖLLER AND HÖLSCHER

Vs.

BLOW PACK

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

Whereas, according to the judgment under appeal (Paris, 2 April 2013), Blow Pack, a company incorporated under Tunisian law, filed an action for annulment against ICC award No. 15839/EC/ND rendered in Paris on 14 September 2011 under the arbitration agreement stipulated in the two contracts providing for the sale by Windmöller and Hölscher, a company incorporated under German law, of two machines of the types Filmex and Varex to produce plastic films.

On the sole ground of the main appeal (in French: moyen unique du pourvoi principal), hereafter annexed:

Whereas Windmöller and Hölscher objects to the judgment which partially annulled the award rendered on 14 September 2011 about the Filmex machine and which refused to act that the award should have automatically benefited from enforcement under the provisions of Article 1527, paragraph 2, of the Code of Civil Procedure.

Whereas the Court of Appeal pointed out that the arbitral tribunal allowed itself, through its president, to proceed to partial translations by itself without setting any criteria for the selection of these translations, even though the language of the arbitration was French. As such, the Court of Appeal correctly ruled that the arbitral tribunal violated the principle of adversarial proceedings (due process) by relying on an expert’s report that it ordered and to which were annexed partially translated documents, without putting Blow Pack in a position to usefully discuss all documents brought to the attention of the arbitral tribunal and of the German party and in the absence of consent on its part. The ground of appeal is unfounded.

On the sole ground of the incident appeal (in French: moyen unique du pourvoi incident), hereafter annexed:

Whereas, Blow Pack objects to the judgment which partially annulled the award rendered by the arbitral tribunal in Paris on 14 September 2011 solely with regards of the Filmex machine.

Whereas, having noted that the grounds for annulment developed by Blow Pack concerned the dispute relating to the Filmex machine, the Court of Appeal correctly inferred that, in the absence of indivisibility, the award should not be set aside in respect of the Varex machine. The ground is unfounded.

FOR THESE REASONS:

DISMISSES the appeals.

States that each party shall pay their own costs.

Having regard to Article 700 of the Code of Civil Procedure, dismisses the claims.

Thus done and ruled by the Court of Cassation, First Civil Chamber, and delivered by the President during his public hearing of the eighteenth of March two thousand and fifteen.

THE CLERK, THE PRESIDENT