X. SA v. Company Y. [The Aircraft Service and Maintenance Agreement] No. 4A_233/2010 - Swiss International Arbitration Law Reports (SIALR) - 2010 Vol. 4 Nos. 1 & 2

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November, 2013

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Originally from:

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

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No. 29

X. SA v. Company Y.

[The Aircraft Service and Maintenance Agreement]

No. 4A_233/2010

Headnote

■ Public policy as a bar to recognition and enforcement of arbitral

awards is to be narrowly construed (confirmation of previous

decisions).

■ A party intending to rely on a lack of impartiality or independence

as a defence to the enforcement of a foreign arbitral award must first

raise such objection in the arbitral proceedings; a failure to do so

will result in such right being lost at the enforcement stage in

Switzerland (confirmation of previous decisions).

Summary of the Decision

X. SA, a Swiss company, entrusted Company Y., a U.S. company, with

the service and maintenance relating to three aircraft in consideration of

payment of a fee. In an award made in the U.S., a sole arbitrator ordered

X. SA to pay Company Y. a certain sum plus interest. The U.S. District

Court, Central District of Illinois, confirmed the award and ordered X. SA

to pay the sum and interest awarded. As the award debt was not paid,

Company Y. instituted debt collection proceedings in Switzerland.

Company Y. then sought the dismissal of X. SA’s objection to the

summons to pay and the recognition and enforcement of the U.S. award

before the courts of Geneva. On 30 November 2009 the Geneva Court of

First Instance dismissed the debtor’s objection to the summons to pay,

recognised the award and declared it to be enforceable.

X. SA brought and application for review against this decision before

the Federal Supreme Court.

The application was denied.

The Court firstly considered article 194 FPILA which refers to the

New York Convention on the Recognition and Enforcement of Foreign

Arbitral Awards, 1958 (NYC, “the Convention”). According to previous

decisions of the Court, article V NYC contains an exhaustive list of the

grounds on which a court may deny recognition or enforcement of a

foreign arbitral award; those grounds are to be narrowly construed. The

Court held that the burden of proof with respect to the existence of such

grounds was on the party resisting enforcement in relation to the grounds