Company X. v. Y. Inc. [The Iraqi Airstrip] No. 4A_433/2009 - Swiss International Arbitration Law Reports (SIALR) - 2010 Vol. 4 Nos. 1 & 2

Page Count: 

20 pages

Media Description: 

1 PDF Download

Published: 

November, 2013

Practice Areas: 

Court Decisions

Subscribe to download

PDF678.55 KB

$40.00

Add to cart

Description: 

Originally from: 

Swiss International Arbitration Law Reports 2010 Vol. 4 Nos. 1 and 2

Preview Page

 

No. 33

Company X. v. Y. Inc.

[The Iraqi Airstrip]

No. 4A_433/2009

Headnote

■ The parties’ right to present their case does not require that an

award should set out reasons. However, such right includes a

corresponding duty for the arbitrator to examine and deal with the

issues relevant to the decision (confirmation of previous decisions).

■ It is for the petitioner to show that it was prevented from

presenting his case on an important point due to the arbitrator’s

oversight. It is a matter for the petitioner to prove, firstly, that the

arbitrator failed to examine a certain point of fact, evidence or law

which had been properly relied upon, and, secondly, that those

points were such as to bear on the outcome of the dispute

(confirmation of previous decisions).

■ If the award entirely fails to mention a point which is important

for the resolution of the dispute, it is then for the arbitrator or the

respondent to explain the reason(s) for such omission in the setting

aside proceedings (confirmation of previous decisions).

Summary of the Decision

Y. Inc., a U.S. company, was entrusted by the U.S. government with

certain works on an airbase in Iraq. Y. Inc. in turn subcontracted part of

the works to Company X., a Turkish company. In 2005, Y. Inc.

terminated the subcontract for cause. Contesting the termination for

cause, Company X. brought an ICC arbitration under the subcontract. In

an award dated 25 June 2009, the arbitral tribunal declared that the

termination for cause was justified, dismissed Company X.’s claims and

granted Y. Inc.’s claim for damages.

Company X. filed a request for correction and interpretation with the

arbitral tribunal and an application to set aside before the Federal

Supreme Court. In the application to set aside, the petitioner argued that

the arbitral tribunal breached its right to present its case as it committed

several manifest oversights and breached public policy as it disregarded

the principle of sanctity of contracts (pacta sunt servanda). On 31

December 2009, the arbitral tribunal made an addendum to the award by

which the amount previously awarded to Y. Inc. was reduced.