Compromissory Clause And Referral By The Employee Of The Court
LexInter | August 23, 2002 | 0 Comments

Compromissory Clause And Referral By The Employee Of The Court

NOTE   Ammar, Daniel    JCP G Week Legal (general edition)  , No.            24 ,            14/06/2000  , pp.1143-1148, Case 10337

On the appeal brought by Mr. Pierre Picquet, residing rue du Fay, 59830 Cobrieux, in cassation of a judgment rendered on February 28, 1997 by the Douai Court of Appeal (social chamber), in favor of the company Sacinter, company anonymous, with registered office at Ramuz 45 CH, 10090 Pully, (Switzerland), defendant at the cassation;

THE COURT, in the public hearing of March 9, 1999, where were present: Mr. Gélineau-Larrivet, president, Mr. Brissier, advisor rapporteur, MM. Waquet, Merlin, Le Roux-Cocheril, Finance, Texier, Lanquetin, Mrs Lemoine Jeanjean, advisers, Mr Poisot, Ms Bourgeot, Trassoudaine-Verger, MM. Soury, Liffran, Besson, Ms. Duval-Arnould, referendum advisers, Mr. Kehrig, advocate general, Ms. Marcadeux, chamber clerk;

On the sole means:

Considering Articles 2061 of the Civil Code and L. 511-1, paragraph 6, and R. 517-1, paragraph 4, of the Labor Code, and Articles 5-1 and 54 of the Lugano Convention of September 16, 1988;

Whereas Mr. Piquet, of Belgian nationality, was hired on February 11, 1986, as ‘business engineer’, by the Swiss company Sacinter to carry out work in France; that the employment contract included an arbitration clause drafted in these terms: ‘Any dispute arising in the execution or interpretation of this contract will be submitted to arbitration as defined by the’ Swiss concordat on arbitration ‘ . The seat of the arbitral tribunal will be Lausanne ‘; that Mr. Picquet was dismissed on February 17, 1995 for economic reasons; he seized, July 4, 1995, the industrial tribunal of a demand for payment of damages for dismissal without real and serious cause; that the company Sacinter has declined the jurisdiction of the prud ‘

Whereas, to confirm the judgment of the industrial tribunal which declared itself incompetent to rule on the dispute between the parties, the judgment under appeal states that the Lugano Convention of September 16, 1988 invoked by Mr. Picquet has been published in the official journal on February 5, 1992, subsequent to the formation of the contract of February 11, 1986; that in addition, it excludes arbitration from its scope, under the terms of Article 1, 4 °; whereas it should therefore be declared inapplicable to the applicant’s case; that Mr. Picquet’s employment contract is, according to the terms of its sixth paragraph, subject to ‘title tenth of the Code of Obligations, federal law supplementing the Swiss Civil Code of March 30, 1911’, the only exception expressed in paragraph seven of the same text relating to ‘ the termination period by the employer ‘; that formed in Switzerland between a Belgian citizen, then domiciled in Belgium and a Swiss company, it thus refers expressly to the Swiss law, to which the parts intended to submit their contractual relations; that the arbitration clause inserted in this contract is therefore valid and excludes the application of Articles 2060 of the French Civil Code and L. 511-1 and R. 517-1 of the French Labor Code;

Whereas, however, that the arbitration clause inserted in an international employment contract is not enforceable against the employee who regularly seized the competent French court by virtue of the applicable rules, regardless of the law governing the employment contract;

That by ruling as it did, while it found that the employee’s action before the labor tribunal had been initiated on July 4, 1995 and that the employee was performing his work in France, which he The result was, on the one hand, that, the referral to the industrial tribunal being subsequent to the entry into force on January 1, 1992, between Switzerland and France, of the Lugano Convention of September 16, 1988, this agreement was applicable by virtue of its article 54 and, on the other hand, that the French court was competent to rule on the dispute in application of article 5-1 of the aforementioned convention, the court of appeal violated the aforementioned texts;

FOR THESE REASONS :

BREAK AND CANCELED, in all its provisions, the judgment rendered on February 28, 1997, between the parties, by the Douai Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Amiens;

Orders the company Sacinter to pay the costs;

Considering article 700 of the new Code of Civil Procedure, condemns the company Sacinter to pay Mr. Picquet the sum of 12,000 francs;

Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed in the margin or following the quashed judgment.

On the report of Mr. Brissier, adviser, the observations of Mr. Bouthors, lawyer of Mr. Picquet, of Mr. Ricard, lawyer of the company Sacinter, the conclusions of Mr. Kehrig, general counsel, and after having deliberated in accordance with the law ; Mr. GELINEAU-LARRIVET, president.

Cass. Soc. February 16, 1999. Judgment n ° 344. Rejection.

Appeal No. 96-40.643.

CIVIL BULLETIN – INFORMATION BULLETIN – REPORT OF THE COURT OF CASSATION.

NOTE            Coursier, Philippe , JCP E Legal Week (enterprise edition)  , No.            42  ,             21/10/1999  , pp.1685-1690

On the appeal brought by: 1 ° / the company ‘Château Tour Saint Christophe’, a limited liability company, whose registered office is at Château Tour Saint-Christophe, BP 13, 33330 Saint-Christophe des Bardes, 2 ° / Mr. Bertrand Audinet, in his capacity as judicial administrator of the limited liability company ‘Château Tour Saint Christophe’, residing at 2, rue des Trois Conils, 33000 Bordeaux, in cassation of a judgment rendered on December 5, 1995 by the court of appeal de Bordeaux (social chamber, section A), in favor of Mr. Thomas Astrôm, residing in Tonnbindargatan 23, 56631 Habo, Sweden, defendant at the cassation;

THE COURT, in the public hearing of November 24, 1998, where were present: Mr. Gélineau-Larrivet, president, Mr. Brissier, advisor rapporteur, MM. Waquet, Merlin, Finance, Lanquetin, Mme Lemoine-Jeanjean, advisers, M. Boinot, Mme Bourgeot, Trassoudaine-Verger, MM. Soury, Besson, Ms. Duval-Arnould, referendum advisers, Mr. Kehrig, advocate general, Ms. Marcadeux, chamber clerk;

On the first plea:

Whereas, according to the judgment under appeal (Bordeaux, 5 December 1995), Mr Aström, of Swedish nationality, was hired by the French company ‘Château Tour Saint Christophe’, by virtue of an employment contract signed in Sweden on October 21, 1991; that this contract includes an arbitration clause providing for ‘arbitration of the Stockholm Chamber of Commerce’ for any dispute concerning the latter; that he was dismissed on 1 October 1992; that he seized the industrial tribunal to obtain in particular the payment of compensation related to his dismissal; that the company Château Tour Saint Christophe declined the jurisdiction of the French jurisdiction based on the arbitration clause;

Whereas the company Château Tour Saint Christophe and the receiver of this company criticize the judgment for having decided that the industrial tribunal was competent to rule on the dispute between the parties, then, according to the means, on the one hand, that the principles of French private international law governing conflicts of jurisdiction violate the judgment which, in order to retain the jurisdiction of the French courts in international litigation, is based on the circumstance that the agreement of the parties would have been subject to French law by virtue of the Rome Convention of June 19, 1980 setting out the principle of the freedom of the co-contractors to choose the applicable law and providing, in the absence of a choice, that the applicable law is that of the place of performance of the contract ; then, on the other hand, that it was noted by the Court of Appeal that Mr Aström, of Swedish nationality, had been engaged by an employment contract drawn up in Swedish, signed in Sweden and containing an arbitration clause aimed at the jurisdiction of an arbitral tribunal located in Sweden as well as the benefit to the employee of a Swedish retirement plan (SKANDIA); that it follows that the said employment contract, having an indisputable international character, makes a false application to the present case of Articles L. 517-1, L. 121-3 and L. 511-1 of the Labor Code, and 14 and 2061 of the Civil Code, the judgment which, on the basis of these texts, holds that the parties were unable to stipulate a jurisdiction clause or an arbitration clause aimed at a jurisdiction other than that designated by the French rule of jurisdiction internal; so,

But given that the arbitration clause inserted in an international employment contract is not enforceable against the employee who regularly seized the competent French court by virtue of the applicable rules, regardless of the law governing the employment contract;

And whereas the Court of Appeal found that the work of Mr. Astrôm of Swedish nationality was carried out in France in the service of the company Château Tour Saint Christophe having its head office in France, so that the industrial tribunal had jurisdiction to rule on the dispute; hence it follows that the Court of Appeal, which responded to the conclusions invoked, rightly decided to set aside the arbitration clause; that the means is unfounded;

On the second plea:

Whereas the applicants on the appeal still complain about the judgment of having condemned the company Château Tour Saint Christophe to the payment of damages on the basis of article L. 122-14-5 of the Labor Code, of a contractual termination indemnity, compensation for paid vacation and an allowance on the basis of article 700 of the new Code of Civil Procedure, then, according to the means, on the one hand, that article 455 violates of the new Code of Civil Procedure, the judgment which excludes that the dismissal of Mr. Aström could be justified by a serious fault on the consideration that he had been granted a notice, by failing to explain himself on the means of company’s appeal findings arguing that the employer did nothad done in this that respect the Swedish rule providing for a reciprocal period of notice of six months whatever the reason for the termination and in particular in the event of serious fault, then, on the other hand, that does not legally justify its decision, at the With regard to articles L. 122-9 and L. 122-14-4 of the Labor Code, the judgment which holds that the dismissal of Mr. Aström was justified neither by a serious fault, nor by a real and serious cause , for the reason that he could not be reproached for his insufficient results, no objective having been set for the person concerned in his employment contract, failing to take into account the fact that any employee, even at the case where his contract does not set a specific objective, is necessarily required to provide a minimum service and lack ofbe explained on the basis of the conclusions of the company arguing that Mr. Aström had been hired as a salaried sales manager, that in one year he had confined himself to selling 5,000 bottles and again to personal friends of the managers of the company, while during the year of its intervention, the said company had suffered an operating loss of 2,800,000 francs compared to an operating profit of 1,770,000 francs the year following the departure of the person concerned ;operation of 2,800,000 francs compared to an operating profit of 1,770,000 francs the year following the departure of the person concerned;operation of 2,800,000 francs compared to an operating profit of 1,770,000 francs the year following the departure of the person concerned;

But given that the Court of Appeal noted, on the one hand, that French law was applicable to the employment contract and, on the other hand, that the insufficiency of results invoked in the letter of dismissal was not established. ; she thus responded to conclusions allegedly abandoned and legally justified its decision; that the means is unfounded;

FOR THESE REASONS :

DISMISSES the appeal;

Orders the company Château Tour Saint Christophe and Mr. Audinet, ex officio, to pay the costs.

On the report of Mr. Brissier, adviser, the observations of Mr. Choucroy, lawyer of the company ‘Château Tour Saint Christophe’ and of Mr. Audinet, ex officio, the conclusions of Mr. Kehrig, general counsel, and after having deliberated thereon in accordance with the law ; Mr. GELINEAU-LARRIVET president.

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