Court of Cassation, No. 14-20.396

Court of Cassation, Civil Chamber 1, 31 March 2016, No. 14-20.396

NYKCOOL (Now called COOL CARRIERS)

VS.

CHAMBRE ARBITRALE MARITIME DE PARIS (CAMP)

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

On the single ground, hereafter annexed:

Whereas, according to the judgment under appeal (Paris, 30 October 2012), on 4 October 2005, a “charter party”, relating to a transport of lychees from Madagascar, was concluded between, on the one hand, the Swedish company Nykcool, now called Cool Carriers, the owner of a vessel, and, on the other hand, eight companies, voyage charterers. The latter, invoking the prejudice caused by the late arrival of the vessel in the port of discharge, filed a request for arbitration with the Chambre Arbitrale Maritime de Paris in application of the arbitration clause stipulated in the contract. An award dated 15 July 2009, supplemented by a rectification report dated 12 October 2009, held Nykcool liable for the delay and ordered it to pay various sums to the eight importing companies; a judgment under appeal of 10 March 2011 set aside the award and the rectification report on the grounds that the arbitrators' refusal to comply with their obligation to comply with a request for a declaration of interest made by a party was such as to give rise to reasonable doubts as to the independence and impartiality of the arbitral tribunal, even though one of the arbitrators was involved in other proceedings involving the same parties; that, by act of 29 April 2011, the Maritime Arbitration Chamber of Paris filed a third party proceedings (in French Tierce opposition) to this decision;

Whereas the latter contested the judgment for rejecting its appeal;

Whereas the judgment notes that during the arbitration proceedings, Nykcool sent a letter to the arbitrators inviting them to subscribe respectively to a declaration of independence and that they abstained from doing so; whereas it notes that this request did not constitute a request for recusal, within the meaning of Article VI of the Rules of Arbitration of the Chambre Arbitrale Maritime de Paris, and that the links existing between one of the arbitrators and the parties importing lychees were not well known; that Nykcool did not have the opportunity to exercise its right to refuse to accept an appointment, as recognised by the arbitration rules, and that the provisions of the arbitration rules could not have the effect of depriving it of invoking a ground for challenge known after the time limit set for exercising its right of challenge. Thus, the Court of Appeal concluded, without contradicting itself, that failure to observe the time-limit for recusal, fifteen days after “the date of departure of the arbitral proceedings”, could not constitute a ground for inadmissibility of the ground alleging irregularity in the composition of the arbitral tribunal; that the ground of appeal cannot be accepted;

FOR THESE REASONS:

REJECTS the appeal;

Orders the Maritime Arbitration Chamber of Paris association to pay the costs;

In view of Article 700 of the Code of Civil Procedure, rejects its request and orders her to pay the company Cool Carriers the sum of 3,500 euros;

Thus done and judged by the Court of Cassation, First Civil Chamber, and pronounced by the president in its public hearing of the thirty-first of March two thousand and sixteen.