X. v. Y. [The Belgian Divorce Agreement] - Swiss International Arbitration Law Reports (SIALR) - 2007 Vol. 1 Nos. 1 & 2

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December, 2014

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Originally from:
Swiss International Arbitration Law Reports - 2007 Vol. 1 Nos. 1 & 2

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Headnote

An award may be challenged on the basis that it is incompatible with

public policy, and the principle pacta sunt servanda is part and parcel of

public policy. The principle pacta sunt servanda is violated where an

arbitrator refuses to enforce a contract term that has been found to be

binding upon the parties, or where an arbitrator orders the parties to

comply with a term that has been found to be not binding on the parties.

Pacta sunt servanda cannot be invoked by a party to challenge an award

based on the arbitrator’s interpretation and construction of the contract in

dispute.

 

Summary of the Decision

 

Following the divorce between X. and Y., the parties entered an

agreement whereby X. undertook to pay Y. a sum of money. The

payment was subject to certain conditions, including X.’s right to have

his child at his home according to the schedule agreed to by the parties.

Y. sought payment under the agreement, whereupon X. sought the

termination of the agreement since X. had been unable to have his child

at his home in accordance with the terms of the agreed schedule. The

sole arbitrator made an award for Y., ordering X. to pay a sum of money.

X. then brought setting aside proceedings on the ground that the sole

arbitrator’s award was incompatible with public policy, and more

particularly, that the award violated the principle pacta sunt servanda.

 

The Federal Supreme Court held that the interpretation and

construction of the agreement by an arbitrator or the consequences that

follow from such interpretation or construction is not caught by the

principle pacta sunt servanda.

 

Accordingly, the application to set aside was dismissed.

 

Statutory and Other Provisions Referred to in the Decision1

 

Federal Judiciary Organisation Act art. 93(3) (FJOA/OG/OJ)