French Republic

IN THE NAME OF THE FRENCH PEOPLE

On the sole means:

Whereas by an exchange of telex, in August 1983, the Tunisian Company of Petroleum Activities (ETAP) and the company Bomar Oil, having its head office in the Netherlands Antilles, concluded an agreement relating to the sale by the ETAP of crude oil; that this agreement referred for “the other conditions” to “those of the standard ETAP contract”; that a dispute having arisen, the ETAP notified to the company Bomar Oil the implementation of the arbitration clause CCI provided for in article 16 of the standard-contract, which contested the company Bomar Oil; that an act of mission was, however, signed on July 2, 1984, specifying that the arbitration would take place in Paris and that the procedural rules would be those of French law supplemented by the UNCITRAL rules; that by award of January 25, 1985, the arbitrators rejected the objection of incompetence raised by the defendant who maintained, in particular, that the arbitration clause which was not contained in a writing signed by the parties, but was only included in a document to which the main agreement referred, had to be considered as non-existent; that the judgment under appeal (Versailles, 23 January 1991), ruling on referral after cassation, rejected the appeal for annulment of the sentence formed by the company Bomar Oil; that by award of January 25, 1985, the arbitrators rejected the objection of incompetence raised by the defendant who maintained, in particular, that the arbitration clause which was not contained in a writing signed by the parties, but was only included in a document to which the main agreement referred, had to be considered as non-existent; that the judgment under appeal (Versailles, 23 January 1991), ruling on referral after cassation, rejected the appeal for annulment of the sentence formed by the company Bomar Oil; that by award of January 25, 1985, the arbitrators rejected the objection of incompetence raised by the defendant who maintained, in particular, that the arbitration clause which was not contained in a writing signed by the parties, but was only included in a document to which the main agreement referred, had to be considered as non-existent; that the judgment under appeal (Versailles, 23 January 1991), ruling on referral after cassation, rejected the appeal for annulment of the sentence formed by the company Bomar Oil; was not contained in a writing signed by the parties, but was only included in a document to which the main agreement referred, was to be considered non-existent; that the judgment under appeal (Versailles, 23 January 1991), ruling on referral after cassation, rejected the appeal for annulment of the sentence formed by the company Bomar Oil; was not contained in a writing signed by the parties, but was only included in a document to which the main agreement referred, was to be considered non-existent; that the judgment under appeal (Versailles, 23 January 1991), ruling on referral after cassation, rejected the appeal for annulment of the sentence formed by the company Bomar Oil;

Whereas the latter complains that the judgment violated Article II of the New York Convention of 10 June 1958, as well as Articles 1443 , 1495 and 1499 of the new Code of Civil Procedure, in that he did not find that the existence of an arbitration clause could have been mentioned in the exchange of telexes preceding the one supposedly of acceptance of August 26, 1983, nor that there could have been usual business relations between the parties who, alone, could presume a perfect knowledge of the written stipulations of the standard contract and, in particular, of the arbitration clause;

But given that in international arbitration, the arbitration clause by written reference to a document which contains it, for example general conditions or a standard contract, is valid, failing any mention in the main agreement, when the party to which the clause is opposed, was aware of the content of this document at the time of the conclusion of the contract, and that it has, even through its silence, accepted the incorporation of the document into the contract; in the present case, the Court of Appeal, after examining the telex exchanged between the parties, sovereignly noted that the company Bomar Oil had accepted, without the slightest reservation, the proposals of ETAP referring formally to her standard contract, of which she had previously received a copy; that thus, the means is unfounded;

FOR THESE REASONS :

DISMISSES the appeal.

Publication: Bulletin 1993 IN ° 313 p. 218

Contested decision: Court of Appeal of Versailles, 1991-01-23

Precedents in case law: To be reconciled: Civil Chamber 1, 1989-10-11, Bulletin 1989, I, n ° 314, p. 209 (cassation).

Treaties Cited: New York Convention 1958-06-10.