IN THE NAME OF THE FRENCH PEOPLE
On the first plea:
Considering articles 809, paragraph 2, and 1458 of the new Code of Civil Procedure;
Whereas the exceptional competence recognized to the judge of summary proceedings, in the presence of an arbitration agreement, is subject to the condition of urgency;
Whereas, according to the judgment under appeal, by an agreement which included an arbitration clause, the company Rega transferred to Mr Sellem almost all of the shares it owned in the capital of the company JPA, for a price including one part was to be paid by reimbursement from current accounts; that, difficulties having arisen between the parties on the installments due, the company requested payment by provision to the judge of the summary proceedings which Mr. Sellem, invoking the arbitration clause, raised incompetence; that a judge of the summary proceedings accepted the request for provision; that the company appealed against this decision;
Whereas, in order to retain the jurisdiction of the summary judge and order Mr. Sellem to pay a provision, the judgment holds that the arbitration procedure was not yet initiated and that no serious dispute was opposed to the payment of ” a provision corresponding to the repayment of the current account charged to the transferee;
That by ruling thus, without finding the urgency, the Court of Appeal, which noted the existence of an arbitration clause, did not give a legal basis to its decision;
For these reasons, and without there being any need to rule on the second plea:
BREAK AND CANCELED, in all its provisions, the judgment rendered on May 31, 2000, between the parties, by the Metz 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 Nancy.
Publication: Bulletin 2002 II N ° 130 p.
Contested decision: Metz Court of Appeal, 2000-05-31
Court of Appeal PARIS
|Public hearing of May 11, 2001
Decision number: 2001/03970 ‘
President: M. CUINAT; Advisors: MM. ANDRE and VALETTE
Decision appealed from: Interim order issued on 02/06/2001 by the PARIS COMMERCIAL COURT – RG n: 2001/08829
Decision: PARTIAL DISQUALIFICATION APPELLANT
SARL ILE-de-FRANCE VENTILATION, taken in the person of its legal representatives, having its registered office at 53 rue Boissière 75016 PARIS
COMPOSITION OF THE COURT:
President: M. CUINAT. Advisors: MM. ANDRÉ and VALETTE.
DEBATES: At the public hearing of April 5, 2001.
CLERK: During the debates and delivery of the judgment: Mme POUVREAU.
JUDGMENT: CONTRADICTORY, publicly pronounced by M. CUINAT,
President, who signed the minute with Mme POUVREAU, Registrar.
SA BSP has appealed against a summary order of February 6, 2001 issued by the president of the Commercial Court of PARIS which, partially granting the request of SARL ILE-DE-FRANCE VENTILATION which claimed a provision of 878,852 F for a balance of work as well as the appointment of an expert, a:
– dismissed the objection of incompetence raised by BSP concerning the arbitration clause appearing in the subcontracting contract;
– acknowledged to BSP that it does not oppose the request for expertise, at the costs advanced by the plaintiff;
– acknowledged to SARL ILE-DE-FRANCE VENTILATION that it has not left the site and undertakes to pay for the delivery of the site as soon as possible;
– having regard to article 872, paragraph 2 of the NCPC, ordered BSP to pay to SARL ILE-DE-FRANCE VENTILATION, as a provision, the sum of 500,000 F;
– having regard to article 145 of the NCPC, all rights and means of the parties remaining reserved on the merits, appointed as expert Mr. Gabriel AMOROS, 2 rue Lécluse in PARIS 17th, with in particular for mission:
. to examine the alleged disorders and in particular those mentioned in the summons, as well as the damages;
. determine the origin of these disorders and in particular the existence of a design defect or non-compliance with the rules of the art;
. provide all technical and factual elements, such as to enable any court seised to determine the responsibilities incurred and to assess, if applicable, the damage suffered;
. give its opinion on the accounts presented by the parties;
– fixed at 10,000 F the provision to be credited to the expert’s remuneration, which the plaintiff must deposit in the Registry before March 6, 2001, on pain of lapse;
– said that the expert must submit his report within 3 months from the deposit of the provision;
– rejected any further or contrary requests;
– ordered BSP to pay the costs.
In support of its appeal, SA BSP exposes in its latest conclusions of April 3, 2001 that the ordered expertise is absolutely necessary to settle the dispute that arose with its subcontractor, ILE-DE-FRANCE VENTILATION, but that the request for provision formed by this company and accepted by the first judge was inadmissible because of an arbitration clause duly provided for in the contract, and in any event seriously questionable given the delays and disturbances recorded in the work entrusted to this company.
She specifies that, since ILE-DE-FRANCE VENTILATION has never taken over the site, it had to be completed by third-party companies for a price of 750,886 F HT.
She considers that the trial judge misinterpreted the documents produced, in that the statement she submitted to him presented a state of progress of 90% which concerned the payments but not the work, which was not completed. to 71% as shown by a particularly explicit bailiff report of 22 January 2001; it rejects all the additional work invoked by its co-contractor, since it was a fixed price contract, and on the contrary claims the payment of its cloakroom and canteen bills which correspond to the services provided by it to ILE- DE-FRANCE VENTILATION who knew they were paying; she adds that she was justified in withholding the sum of 158,398 F as the performance guarantee, since the bank guarantee produced was not was not operational; Finally, it excuses the aforementioned claim of 750,886 F, the reality of which it claims to justify and which will enable it to request compensation during the substantive debate before the arbitral tribunal which will decide on the basis of the expert report to intervene.
It concludes by asking the Court to:
– give it notice that it limits its appeal to the provisional sentence of 500,000 F that the ordinance condemned it to pay to the company ILE-DE-FRANCE VENTILATION;
– annul the order undertaken, in that it retains the competence of the judge of summary proceedings of the commercial court to pronounce a provisional sentence, whereas if article 810 of the NCPC extends the powers of the president of the tribunal de grande instance set by Articles 808 and 809 of the NCPC in all matters where there is no specific
summary procedure , and therefore in matters of arbitration, the same does not apply to the powers of the president of the commercial court provided for by the Articles 872 and 873;
– in any event, declare itself incompetent in favor of the arbitrator (s) referred to in the arbitration clause provided for in article 25 of the general conditions of subcontracting contract no.4287 / 522, of which ILE-DE-FRANCE VENTILATION is is used as a basis for its action;
– refer ILE-DE-FRANCE VENTILATION to provide for this;
– as necessary, declare and judge that the request for a provisional conviction filed against BSP comes up against serious challenges within the meaning of article 873 paragraph 2 of the NCPC and thereby set aside the order undertaken;
– order the company ILE-DE-FRANCE VENTILATION to return to BSP the sum of 507,709.95 F paid according to the bank check of March 13, 2001 following the seizure-allocation carried out at the request of
– order ILE-DE-FRANCE VENTILATION to pay BSP compensation
of 30,000 F under Article 700 of the NCPC, as well as all costs.
The SARL ILE-DE-FRANCE VENTILATION, respondent, argues by unique conclusions of March 29, 2001 that the company BSP has shown itself to be bad debtor since the start of the work and that it ultimately retained the situations of November and December 2000, for an amount of 439,787.73 F, although the work was carried out, then it made an undue holdback, for 158,398.98 F, and unjustified invoicing of 39,109.20 F for the provision of a cloakroom which was refused when signing the contract; that in addition, BSP remains owing him 241,556.12 F for additional work. It denies any value to the bailiff’s report drawn up at the sole request of his opponent and not contradictorily. Finally, she invokes the case law according to which,
Filing an incidental appeal, she requests an increase in the provision corresponding to the progress rate of 88.81% appearing on the document produced by BSP and which she considers corresponds to the work carried out and not to the payments already made as claimed. BSP against all evidence.
It concludes by asking the Court to:
– declare unfounded the appeal brought by the company BSP and dismiss it;
– confirm the appointment of Mr AMOROS as an expert;
– the allocation of the allowance and having regard to Article 1134 of the Civil Code
. declare admissible and well founded the incidental appeal which it forms concerning the quantum of the sums awarded at first instance;
. granting it and ruling again, order the company BSP to pay it the provisional sum of 605,101.47 F (work carried out according to the table drawn up by BSP) + 158,398.98 F (abusive deductions from the guarantee) + 39,109.20 F (cloakroom ) = 802,609.65 F;
. failing this, confirm the ordinance undertaken in that it condemned BSP to the payment of the sum of 500,000 F to ILE-DE-FRANCE VENTILATION;
– order the company BSP to pay him the sum of 15,000 F under Article 700 of the NCPC, as well as all the costs of first instance and appeal.
ON THIS, THE COURT,
Considering that it emerges from the documents submitted to the proceedings that SA BSP, member of a group of companies specializing in climatic and thermal engineering which is responsible for the execution of a heating-ventilation-air conditioning-smoke extraction contract in a real estate program in the district of LA DEFENSE, entrusted to the SARL ILE-DE-FRANCE VENTILATION, according to subcontracting contract n ° 4287/522 of May 25, 2000, the “setting up of the aerolite networks – including terminals – excluding lot installation of hoods “;
that alleging delays from SARL ILE-DE-FRANCE VENTILATION and non-compliance with the commitment that this company would have made to complete the work by the end of December, BSP summoned it by registered letter of January 4, 2001 ( received on January 5 according to the notice of receipt) at a site meeting on January 8 “to make an official report of your work and make up for your deficiency”, then – this company not having come forward – notified it by registered letter of January 10, 2001 (received January 11) that she considered this absence as an abandonment of the site and had the work resumed, the costs of which would be deducted from the invoices remaining to be paid to her;
that the ILE-DE-FRANCE VENTILATION company claimed for its part, also by registered letter of January 10, 2001, a payment on February 10 in the amount of 333,897.31 F, in addition to 180,000 F for retention and various additional work that it claimed up to 70,740 F HT for openings, 131,570 F HT for passages of modified sheaths and 2,500 F HT for measurements;
that the company ILE-DE-FRANCE VENTILATION then sent BSP various work situations which remained unpaid, BSP having, by registered letter of January 16, 2001, disputed that these situations correspond to the actual progress of the work and renewed its request a bank guarantee for the completion of the work, in place of the guarantee which it had already refused previously;
that BSP did not, however, dispute the principle of the requests of ILE-DE-FRANCE VENTILATION concerning the 70,740 F HT of openings and the 131,570 F HT of modified duct passages, but reminded that ILE-DE-FRANCE VENTILATION did not provided quotes to verify and regularize them through order forms when she had been claiming them for several months; that finally, it recognized owing the 2,500 F of measurements, but confirmed to this company that it had replaced it, in these terms:
“In summary, for several months you have tried to hide your lack of personnel and supervision to ensure good follow-up and respect for commitments. The delivery date of the site being imminent, we can no longer afford to continue with your company. A precise inventory is available in our offices for consultation. ” ;
Considering that the general conditions of the contract, accepted by the subcontractor, provide in particular that, in the event of disputes over the application of the clauses of the contract, the parties undertake to submit their dispute to arbitration, according to detailed modalities in Article 25 and comprising different deadlines for the appointment of one or more arbitrators, without however any special provision being made for the taking of any provisional or protective measures;
that it thus turns out that the arbitration clause appearing in the contract concluded between the parties does not exclude the right for them to seize the court of summary proceedings, in particular in order to obtain a provision on the basis of article 873 paragraph 2 of the NCPC, while it is not justified or even alleged that the arbitral tribunal was seized, and while ILE-DE-FRANCE VENTILATION is justified in asserting the urgency which undoubtedly attaches for it to the need to obtain, after a delay of several months, the payment of services which it claims to have carried out in November and December 2000 and the amount of which represents approximately one tenth of the annual turnover which it claims;
that the SA BSP invokes in vain the limits of the competence of the president of the commercial court in summary proceedings, which, if they do not have the extent of those that article 810 of the NCPC recognizes to the president of the tribunal de grande instance – common law jurisdiction – in all matters where there is no specific summary procedure, nevertheless, under the very terms of articles 872 and 873 of this code, comply with the limits of the jurisdiction of the commercial court , which it is not disputed that the contractual relationship between the two commercial companies parties to the present proceedings;
that follows that the exception incompétence raised this head by the company BSP due to the convention arbitration agreed between the parties will be rejected;
Considering that it results from the report of bailiff established on January 22, 2001, at the sole initiative of the company BSP, that this company made note, for each of the 5 levels of the building site, the progress of the work zone by zone; that the bailiff relates his operations as follows:
“I noted the progress of the work in the areas indicated below. Mr. DAGNAUD gave me plans of the planned installations. The unrealized elements are indicated on the plans fluorescent marker.
The zones visited are therefore the following: “(follows the enumeration of a zone at” conference level “, of one at” conference level ”
esplanade “, of 6 zones at” street level “, of 5 at” reserve level “and of 6 at” delivery level “); that the 19 plans which correspond respectively to each of these 19 zones actually mention, in felt-tip pen, different duct routes presented as unrealized;
Considering that the company ILE-DE-FRANCE VENTILATION did not come to deny any probative value to these findings on the sole ground that they were not established in a contradictory manner, whereas this company did not attend the meeting site to which it had been invited on January 8, 2001, by a registered letter of January 4 received by it on January 5, and while it refrains from making any technical and factual criticism about this observation and the 19 aforementioned plans, which were duly communicated to him at first instance, in the original, as mentioned in the schedule of March 29, 2001;
Considering that the company BSP also provides the list of orders placed by it to four other companies (LIMI CLIM, ALSACE VENTILATION, ZIMMERMANN and FACLIM) between January 12 and March 14, 2001, to complete the areas that it considers to have been neglected by ILE-DE-FRANCE VENTILATION and which effectively correspond to the references of the areas covered by the aforementioned plans;
that the total costs incurred in this regard by BSP is established, according to this list of orders, the sum of 750.886 F HT;
Considering that, to calculate the remaining balance due to ILE-DE-FRANCE VENTILATION, the first judge based himself on “the report drawn up by the bailiff appointed by the SA BSP” and considered that this document “shows that the The average state of progress of the work is of the order of 90% “, whereas it turns out on examination of this document that it was drawn up by the company BSP itself and that it is in reality likely to constitute only a summary of the payments made, without probative value as to the progress of the work itself;
that the payment requested by ILE-DE-FRANCE VENTILATION in the amount of 439,787.73 F corresponds to a series of 8 invoices n ° 11/255, 256, 257, 260, 261, 262, 263 and 12/289 issued by this company in November and December 2000,
that in view of all these elements appreciation, the obligation of society BSP to pay these invoices is seriously questionable;
Considering that with regard to the additional work alleged by ILE-DE-FRANCE VENTILATION, the company BSP admits (page 13 of its writings) that its adversary “subject to all usual reservations, cannot claim a sum greater than 29,460 F HT for the openings and 34,925 F HT for the modification works “, which makes it possible to estimate that the obligation of BSP is not seriously questionable up to the amount of these two sums, that is to say 64,385 F HT (77,648.31 F TTC), with regard to these two types of services; that it is advisable to add to it the 2,500 F HT (3,015 F TTC) also not contested by BSP under the measurements carried out; that the total amount not seriously contestable thus established at 80.663.31 F TTC;
that the company BSP is clearly justified in withholding the sum of 158,398.98 F corresponding to the agreed amount of the guarantee of completion of the work, without the company ILE-DE-FRANCE VENTILATION being able to usefully claim the bank guarantee she had provided in this regard but which was refused and returned by BSP on 11 December 2000 on the grounds, which appears exact, that it did not constitute the guarantee provided for in the contract; that finally, the parties’ disagreement about the deduction of a sum of 39,109.20 F for the monthly rental of changing rooms for the staff of ILE-DE-FRANCE VENTILATION, has no effect on the figures aforementioned, since it is the whole of the claim claimed by this company which, apart from the total sum of 80,663.31 F as has just been said,
that follows that the ordinance company will be partially reversed, in order to reduce the amount of the provision allocated to the society ILE-DE-FRANCE VENTILATION to the sum of 80.663.31 F;
that, for all that, it will not be granted to the request of the company BSP for the purpose of ordering its adversary to restore to him the difference with the sum of 507,709.95 F which it justifies having paid under the provisional execution , this request proving superfluous since its claim for restitution arises automatically from this judgment, with interest at the legal rate from its service;
that the deferred ordinance not being otherwise criticized, its other provisions – and in particular the ordered expertise – will be confirmed;
Considering that equity leads to condemn the respondent to pay the appellant an indemnity compensating a part of its irreparable costs;
FOR THESE REASONS,
Declares SA BSP partially founded in its appeal;
Declares the SARL ILE-DE-FRANCE VENTILATION ill-founded in its cross-appeal;
Reverses the business ordinance, in its sole provision relating to the amount of the provision that SA BSP is ordered to pay to SARL ILE-DE-FRANCE VENTILATION, which is reduced to the sum of 80,663.31 F;
Confirms, for the rest, the order undertaken;
Rejects any other request, broader or contrary;
Orders SARL ILE-DE-FRANCE VENTILATION to pay SA BSP a sum of 12,000 F under article 700 of the NCPC;
Orders it to pay the entire costs of first instance and appeal; admits SCP MÉNARD-SCELLE-MILLET, admitted, to the benefit of article 699 of the NCPC.
THE REGISTRAR THE PRESIDENT Paris
Court of Appeal JUDGMENT of 4 MAY 2001
14th Chamber, section B RG n °: 01/03970 – 7th page
Case law precedents: Cass. Civ. 2nd, March 20, 1989, Bull. civ. II, n ° 84
Court of Appeal PARIS
|Public hearing of 03 November 2000
Decision number: 2000/10265
President: M. CUINAT. Advisors: MM. ANDRÉ and VALETTE.
Text of the decision
PARIS COURT OF APPEAL
14th chamber, section B
JUDGMENT OF 3 NOVEMBER 2000
SAE INTERNATIONAL, taken in the person of its legal representatives, having its registered office at 143 avenue de Verdun 92130 ISSY LES MOULINEAUX
Company MIVAN Limited (partial divestiture of 29 06 2000), taken in the person of its legal representatives, having its registered office in Newpark, Greystone Road, Antrim NORTHERN IRELAND BT41 2 QN
Company MIVAN INDONESIA, taken in the person of its legal representatives
having its seat JI Taman Kemang II n ° 39, Kebayaran Bary, JAKARTA 12730 INDONESIA
COMPOSITION OF THE COURT:
During the debates: Mr CUINAT, magistrate rapporteur, heard the pleadings, the parties not having objected, then he reported to the Court in his deliberation.
During the deliberation: Chairman: M. CUINAT. Advisors: MM. ANDRÉ and VALETTE.
DEBATES: At the public hearing of October 6, 2000.
CLERK: During the debates and delivery of the judgment: Mme POUVREAU.
JUDGMENT: CONTRADICTORY, publicly pronounced by M. CUINAT, President, who signed the minute with Mme POUVREAU, Registrar.
SAE INTERNATIONAL SA appealed against a summary order of April 20, 2000 and the corrective order of June 22, 2000 issued by the president of the Commercial Court of PARIS which, partially granting the requests for
. the company under British law Mivan Limited
. the company incorporated under Indonesian law MIVAN INDONESIA:
– ordered it to pay the latter company the provisional sum of 1,500,000 F;
– said there was no reason to refer on the surplus of the request, nor to apply the
provisions of article 700 of the NCPC;
– said it did not take place in the state with appointment of an expert;
– ordered it to pay the costs.
Considering the conclusions of withdrawal filed on June 29, 2000 by SAE INTERNATIONAL SAE so that it is given notice that it withdraws, from the legal offers, exclusively against the company MIVAN Ltd, the proceedings continuing against the company MIVAN INDONESIA;
Considering the partial relinquishment order issued on June 29, 2000 by the Advisor in charge of the pre-trial status, saying that the Court remains seized of the appeal of SAE INTERNATIONAL against the company MIVAN INDONESIA;
Considering the constitution of attorney of September 8, 2000 of the companies MIVAN INDONESIA and MIVAN Ltd;
Having regard to the latest conclusions filed on September 21, 2000 in support of its appeal by SAE INTERNATIONAL, which requests the Court to kindly:
– having regard to article 961 of the NCPC, declare inadmissible the conclusions filed by the company
MIVAN INDONESIA until justified by the latter of its current headquarters;
– declare inadmissible the requests made by the company MIVAN Ltd, which is not a respondent and, failing that, dismiss all of its requests;
– set aside the interim order of April 20, 2000 and the amending order of June 22, 2000 on jurisdiction, given the lack of urgency in the state of an arbitration clause binding the joint operation and the company MIVAN INDONESIA and return the parties before the Arbitral Tribunal;
– in the alternative:
. invalidate the competence of the above orders, say incompetent French courts and refer the parties to the Indonesian courts for any request
. set aside the said orders due to serious disputes, in particular on the amount of the allocated provision, and given the rules of Indonesian law applicable to the joint operation declare inadmissible the claims of the company MIVAN INDONESIA against SAE INTERNATIONAL;
. failing this, state that SAE INTERNATIONAL is only liable for half of the sums due to the company MIVAN INDONESIA, i.e. 334,178,393.4 Indonesian rupees and, consequently, order it to pay this amount to the company MIVAN INDONESIA in Indonesia within one month of service of the judgment, or, failing said payment, to pay the counterpart in French francs, ie 361,279.14 F;
– in any event, order the company MIVAN INDONESIA to pay SAE INTERNATIONAL the sum of 15,000 F under article 700 of the NCPC, as well as all the costs of first instance and appeal;
Having regard to the latest conclusions filed on September 28, 2000 by the company MIVAN INDONESIA, respondent, and by the company MIVAN Ltd, appellant provoked,
– having regard to article 564 of the NCPC, declare inadmissible the requests of SAE INTERNATIONAL as being new in appeal;
– dismiss SAE INTERNATIONAL of all of its requests, as being unfounded;
– confirm the business order, in that it condemned SAE INTERNATIONAL to pay the company MIVAN INDONESIA a provision of 1,500,000 F;
– by way of counterclaim, set aside the order undertaken, in that it dismissed the company MIVAN Ltd of its claim and order SAE INTERNATIONAL to pay this company the equivalent in French francs, on the day of the judgment, of the sum of 2,321,939.76. in addition to interest at the legal rate from November 12, 1999;
– order SAE INTERNATIONAL to pay to the companies MIVAN INDONESIA and MIVAN Ltd, to each, the sum of 20,000 F under Article 700 of the NCPC, as well as all costs;
Considering the denunciation, by act of October 6, 2000 before hearing, by the SA SAE INTERNATIONAL of its new address which it requests that it be given notice;
ON THIS, THE COURT,
Considering that the documents communicated under n ° 50 and 51 by the companies MIVAN INDONESIA and MIVAN Ltd according to the slip filed on October 6, 2000, that is to say after the closure pronounced by order of September 28, 2000, must be declared automatically inadmissible in application of article 783 of the NCPC;
Considering that the SAE INTERNATIONAL having withdrawn its main appeal against the company MIVAN Ltd and the relinquishment of the Court with regard to this company having been pronounced by order of the advisor of the state of the 29 June 2000, the appeal provoked formed by the company MIVAN Ltd – which was only established on September 8, 2000 – is inadmissible as being subsequent to the withdrawal concerning it;
that the company MIVAN Ltd objects in vain that under article 550 of the NCPC the appeal provoked can be brought in any event, while the withdrawal of SAE
INTERNATIONAL in its regard, duly noted by the order of the adviser of the
pre-trial, prevailed – in the absence of any incidental request or any appeal duly filed by another party – termination of the part of the proceedings concerning it;
Considering that SAE INTERNATIONAL contributes to the debates (Exhibit 16) a photocopy of a registered letter with acknowledgment of receipt sent by it to the company MIVAN INDONESIA
on July 26, 2000, at his address as indicated in the constitution of attorney of this company, namely J1 Taman Kemang II n ° 39, Kebayaran Bary, DJAKARTA (Indonesia), but which was returned to him by the postal services with the indication “gone”;
that the company MIVAN INDONESIA refraining from producing any document justifying the effectiveness of its registered office at the address indicated by it in its constitution and included in all its conclusions, it is appropriate to grant the request of SAE INTERNATIONAL and to declare the said entries inadmissible in application of article 961 of the NCPC;
Considering that it is necessary to give notice to SAE INTERNATIONAL that it indicates its new address as being: 143 avenue de Verdun, 92130 Issy-les-Moulineaux;
Considering that it emerges from the documents submitted to the proceedings that, by subcontracting contract of April 3, 1996, a joint operation comprising SAE INTERNATIONAL SA entrusted the company under Indonesian law MIVAN INDONESIA with formwork and concrete work, in the framework of the realization of a project called “Dukuh Golf Djakarta”;
that this contract provides, in its article 22, that in any dispute the Arbitration will follow the procedure indicated in the main contract, while article 5.2 specifies that the subcontractor is deemed to have knowledge of all the provisions of the main contract;
that, under these conditions, the company MIVAN INDONESIA cannot validly claim that it would not have been aware of the arbitration clause agreed between the parties, which obstructs the competence of the courts of common law;
Considering that if the existence of an arbitration agreement does not however prevent the parties from seizing the court of summary proceedings to obtain a provisional measure, it is on the condition of proving the urgency of the request;
that in the present case, no urgency is established with regard to the demand for provision made before the first judge by the company MIVAN INDONESIA, which in no way aimed at urgency in its originating summons of March 7, 2000, being observed that the documents in the file show that this company, on the contrary, did not send the final statement of its services until December 21, 1998, whereas SAE INTERNATIONAL had requested it since May 28, 1998, then left unanswered the dispute that this company opposed it on February 15, 1999 and then did not come forward, leaving the company incorporated under British law MIVAN Ltd, which was not yet part of the subcontracting contract, to intervene in its place;
that, in these conditions, it is wrong that the first judge considered that the request of the company MIVAN INDONESIA was of an urgent nature within the meaning of article 872 of the NCPC and partially granted the request for provision ;
that it follows that the ordinance business will be quashed in all its provisions, to say no place to referred in the presence of an arbitration clause and lack of urgency;
Considering that equity leads to condemn the company MIVAN INDONESIA to pay to the company SAE INTERNATIONAL an indemnity compensating a part of its irreparable costs;
FOR THESE REASONS,
Declares of office inadmissible the documents communicated under the n ° 50 and 51 by the companies MIVAN INDONESIA and MIVAN Ltd according to schedule deposited on October 6, 2000;
Declares inadmissible the appeal brought about by the company MIVAN Ltd;
Declares inadmissible the conclusions filed by the company MIVAN INDONESIA;
Acknowledge to SAE INTERNATIONAL that it indicates its new address as being: 143 avenue de Verdun, 92130 Issy-les-Moulineaux;
Declares SAE INTERNATIONAL SA well founded in its appeal; Granting it
Reverses in all its provisions the ordinance undertaken;
– Holds that there are no grounds for interim relief;
Condemns the company MIVAN INDONESIA to pay to SA SAE INTERNATIONAL a sum of 10,000 F under article 700 of the NCPC;
Orders it also to pay the costs of first instance and appeal; admits the SCP of AURIAC-GUIZARD, admitted, to the benefit of article 699 of the NCPC.
THE REGISTRAR THE PRESIDENT Paris
Court of Appeal JUDGMENT of 3 NOVEMBER 2000
14th Chamber, section B RG n °: 00/10265 – 5th page