X. SA v. Y. SA [The Spanish LNG Storage Tank] No. 4A_254/2010 - Swiss International Arbitration Law Reports (SIALR) - 2010 Vol. 4 Nos. 1 & 2

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November, 2013

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

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No. 31

X. SA v. Y. SA

[The Spanish LNG Storage Tank]

No. 4A_254/2010

Headnote

■ Preliminary awards, as opposed to partial awards, cannot be

directly challenged before the Federal Supreme Court on the basis

that the parties’ right to present their case has been breached

(confirmation of previous decisions).

■ A petitioner cannot complain that an arbitrator based his decision

on a legal ground which was unforeseeable for the parties and

therefore breached the parties’ right to present their case when the

arbitrator has examined whether an agreement was a sham of his

own motion in a case in which evidence conclusively pointed to a

sham transaction.

Summary of the Decision

X. SA (a company incorporated in Belgium) and Y. SA (a company

incorporated in Spain) entered into a Business Consultancy Agreement

(“the 2001 BCA”) under the terms of which Y. SA undertook to provide

services to X. SA so as to enable X. SA to be selected as a contracting

party by V. SA. V. SA. was about to build a storage tank for liquefied

natural gas (LNG) in Spain. Y. SA in addition undertook to assist X. SA

in the performance of the contract to be concluded with V. SA. In due

course X. SA transferred its LNG business to X.A. GmbH. V. SA finally

concluded a construction contract with a company of the X. Group, of

which it informed X. SA. Later on, X.A. GmbH and the Dutch company

W. BV entered into a Business Consultancy Agreement (“the 2003

BCA”), almost identical to the 2001 BCA. At the beginning of April

2004 Y. SA contacted X. SA to complain of the fact that it had no longer

received any information with respect to the payment of the commission

owed under the 2001 BCA. As a result, Y. SA brought arbitration

proceedings against X. SA. The ICC appointed a sole arbitrator in order

to decide the dispute. The sole arbitrator made a partial award in which

he declared that he had jurisdiction to hear the dispute and dismissed the

objections relating to Y. SA’s standing to sue as well as X. SA’s standing

to be sued. The arbitrator then made a final award in which he found that

Y. SA had been instrumental in the award of the construction contract to

X. SA’s subsidiary, but he dismissed Y. SA’s claims for damages.