Thales (formerly Thomson-CSF) v. 1. Frontier AG Berne in liquidation and 2. Brunner Sociedade civil de administração limitada [French Frigates for Taiwan] No. 4A_596/2008 - Swiss International Arbitration Law Reports (SIALR) - 2009 Vol. 3 Nos. 1 & 2

Page Count: 

40 pages

Media Description: 

1 PDF Download

Published: 

December, 2009

Practice Areas: 

Court Decisions

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Description: 

Originally from:
Swiss International Arbitration Law Reports - 2009 Vol. 3 Nos. 1 & 2

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Headnote

 

■ Revocation of a decision by the Federal Supreme Court, including

a decision made in setting aside proceedings against an award, may

be requested where criminal proceedings have determined that the

decision sought to be revoked was influenced by a felony or

misdemeanour to the petitioner’s detriment, even if no one was

sentenced. If criminal proceedings cannot be brought, evidence that

the decision sought to be revoked was influenced by a criminal

offence may be provided otherwise.

It does not matter whether the criminal offence was committed by a

party to the proceedings or a third party. The essential requirement

is that there must be a causal nexus between the criminal offence

perpetrated and the operative part of the decision sought to be

revoked. The offence must have influenced, whether directly or

indirectly, the decision sought to be revoked to the petitioner’s

detriment (confirmation of previous decisions).

■ The petitioner seeking revocation of a judgment on this ground

must act within 90 days as from the discovery of the ground for

revocation on pain of forfeiture. The time limit starts to run as soon

as the petitioner is aware of a final sentence or, if such a sentence is

no longer possible, of the existence of the criminal offence relied

upon and evidence of such an offence.

■ Deceiving a judge in order to procure a decision which

detrimentally affects the pecuniary interests of one’s opponent may

amount to a fraud upon the court (Prozessbetrug), a felony which is

caught by the definition of fraud (confirmation of previous

decisions).

 

Summary of the Decision

 

In 1989 the Republic of China (Taiwan) contemplated the purchase of

frigates from a French company, Thomson-CSF (which became Thales).

France at first granted an export authorisation, but then withdrew it in the

face of opposition from the People’s Republic of China. By an