LexInter | June 29, 2008 | 0 Comments



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

On the single means, taken in its three branches:

Whereas the company Roger X … distribution (company Roger X … ), headquartered in Fort-de-France, has been since 1954 the exclusive distributor in Martinique of English and American cigarettes supplied by the English company British American Tobacco ltd, now British American Tobacco international (UK and export), hereinafter BAT (UK and export); that by contract of May 1, 1980, BAT (UK and export) and Roger X … have defined their contractual relations by mentioning, in the appendix, the list of products distributed, which was modified by amendment of February 6, 1988, and, by stipulating an ICC arbitration clause for the settlement of all disputes between the parties; that in October 1998, the company BAT (UK and export) informed the company Roger X … that the management of its account would henceforth be ensured by the company British American Tobacco international SARL, headquartered in Switzerland, which was to become the company British American Tobacco international ltd; that orders were then passed by the company Roger X … from this Swiss company; that by letter of November 10, 1999, the company BAT (UK and export) notified the company Roger X … the termination of their contractual relations, effective 9 November 2000, which was confirmed the same day by the company British American Tobacco international ltd; that the company Roger X … has brought against the companies BAT (UK and export), British American Tobacco international SARL and British American Tobacco international ltd before the commercial court of Fort-de-France in damages for the damage caused by severing their commercial relations; that the defendant companies opposed the arbitration clause;

Whereas the company Roger X … criticizes the confirmatory judgment under appeal (Fort-de-France, December 20, 2002) for having declared itself incompetent and for having referred him to better provide himself, then, according to the means :

1 / that under Article 1165 of the Civil Code, agreements only have effect between the contracting parties and do not benefit third parties, except in particular cases of groups or chains of contracts; that in this case, the contract of May 1, 1980, stipulating the arbitration clause, having been signed only by the company Roger X … and the company BAT (UK and eport), located in London, without noting a stipulation for third parties in favor of BAT international ltd, whose head office is in Switzerland, nor that it was an integral part of a group or a chain of contracts, the Court of Appeal could not, without violating Article 1165 of the Civil Code, allow the latter company to benefit from the arbitration clause on the ineffective reason that BAT international ltd would constitute the vehicle of its group chosen by BAT ( UK and export) to ensure continuous supply to the company Roger X … , since BAT international ltd was neither party nor signatory of the contract of May 1, 1980;

2 / that considering that the contract of May 1, 1980, which covered certain products, was nevertheless applicable to products other than those listed in the rider of February 8, 1988, the court of appeal, by denaturing , violated article 1134 of the civil code;

3 / by affirming peremptorily that the validity of the arbitration clause was not contested in principle, the Court of Appeal ignored the subject of the dispute and violated Article 4 of the new Code of Civil Procedure;

However, having noted, first of all, that if the contract of 1 May 1980 had been concluded with the BAT company (UK and export), the BAT international SARL company, which became the BAT international ltd company, had intervened in the execution of the agreement with the agreement of Roger X …, then, that the intervention of BAT international SARL did not modify the data of the dispute and that the only contractual relationship in question was that of the distribution contract, the court of appeal, for its own and adopted reasons, exactly deduced, apart from any distortion or misunderstanding of the subject of the dispute, that the arbitration clause was not manifestly null or inapplicable to the dispute, so that the state court was not competent to hear it; that the means is devoid of any foundation;


DISMISSES the appeal;

Condemns the company Roger X … distribution costs;

Considering article 700 of the new code of civil procedure, condemns the company Roger X … distribution to pay, on the one hand, to the company BAT (UK and export) ltd and, on the other hand, to the company British American Tobacco international ltd, a sum of 2,000 euros;

Thus done and judged by the Court of Cassation, first civil chamber, and pronounced by the president in his public hearing on July 11, two thousand and six.

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