X. SA v. Y. SpA [The Franco-Italian Aircraft] No. 4A_584/2009 - 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. 15

X. SA v. Y. SpA

[The Franco-Italian Aircraft]

No. 4A_584/2009

Headnote

■ An award by which an arbitrator finally decides on part of the

relief sought by either party, whether part of quantum or one among

several claims, may be challenged forthwith like a final award

(confirmation of previous decisions).

■ The parties’ right to present their case includes at a minimum a

duty for the arbitrator to examine and deal with the issues relevant

to his decision. That right is breached when the arbitrator fails to

consider allegations or arguments made or evidence adduced by

either party which are relevant to the decision to be made

(confirmation of previous decisions).

■ A dissenting opinion is not part of the arbitral award. It does not

affect the findings or the operative part of the award.

Summary of the Decision

The legal predecessors of X. SA and Y. SpA concluded a series of

agreements akin to joint-venture agreements (“the basic Agreements”)

relating to the development, production and marketing of aircraft. Over

the years the partners adjusted their contractual relationships and

concluded a contract entitled the “[…] Agreement”, followed by a new

agreement called “Contractual Rules.” The parties signed one last

agreement (“the 2001 Agreement”), according to which their respective

aircraft components would be assigned to an Economic Interest Group

(“EIG”) at a fixed and irrevocable price for the years 2001, 2002 and

2003, such price to be reviewed at the end of 2003. Later negotiations

with respect to the price review did not succeed. Relying on the

arbitration clause contained in the 2001 Agreement, X. SA brought an

ICC arbitration against Y. SpA seeking inter alia damages. Y. SpA sought

to have the claim dismissed as a whole and submitted counterclaims. By

a majority award the tribunal dismissed all of X. SA’s claims, allowed

one of Y. SpA’s counterclaims and dismissed the others. As for the rest,

it reserved its decision on the outstanding issues as well as the costs of

the arbitration for one or more further awards.

X. SA brought an application to set aside before the Federal Supreme

Court against the award.