## Facts

- A shipper arranged carriage of sealed containers from Marseille, France to Île de la Réunion with a carrier under a bill of lading incorporating printed general conditions.
- The bill of lading included a “Law and Jurisdiction” clause requiring arbitration in London (or another place chosen by the carrier) and applying English law unless another law was mandatorily applicable.
- The original bill of lading was signed by a carrier affiliate “as agent and representative of the shipper,” while the signature space designated for the carrier on the original was not signed.
- The consignee signed a copy marked as a “certified copy of the original” and later endorsed/signatured the original in the section containing the printed terms, including the arbitration clause.
- Upon delivery, the container showed forced entry; 56 parcels were missing and two were damaged.
- The cargo insurer indemnified the cargo interest and, as subrogee, sued the carrier in the Geneva trial court for reimbursement.
- The carrier objected to Geneva court jurisdiction, invoking the London arbitration clause.
- The Geneva trial court accepted jurisdiction; the Geneva appellate court reversed and enforced arbitration; the insurer appealed to the Swiss Federal Tribunal.

## Issues

1. Whether, for an arbitration clause providing for a foreign seat (London), the formal validity of the arbitration agreement is governed exclusively by Article II of the New York Convention rather than Swiss domestic arbitration law.
2. Under Article II(3) of the New York Convention, what scope of review a court has when deciding whether to refer the parties to arbitration.
3. Whether the bill-of-lading arbitration clause satisfied Article II(2)’s “agreement in writing” requirement despite missing/irregular signatures, and whether good-faith conduct and trade practice could cure formal defects.

## Decision

- The Swiss Federal Tribunal dismissed the insurer’s appeal and upheld the appellate ruling declining Geneva court jurisdiction in favor of London arbitration.
- It held that Article II of the New York Convention exclusively governed the formal validity inquiry because the agreed seat was outside Switzerland.
- It held that a court deciding a referral request under Article II(3) has full authority to assess the arbitration agreement’s formal validity, but must confine its analysis to Convention-based standards.
- It held that the arbitration clause met Article II(2)’s writing requirement on the record as a whole; in the circumstances, good-faith conduct and the documentary chain sufficed despite technical signature imperfections.

## Legal Principles

- For arbitration agreements providing for a seat outside Switzerland, the formal validity of the arbitration agreement is assessed under New York Convention Article II, not Swiss domestic arbitration law as an independent basis.
- Article II(3) permits a court to conduct a full assessment of the arbitration agreement’s formal validity when a party seeks referral to arbitration, but bars reliance on non-Convention grounds inconsistent with the Convention’s international regime.
- Article II(2)’s “agreement in writing” requirement may be satisfied through the combined effect of documents and signatures associated with the contractual transaction; strict formalism is not required where the record demonstrates assent.
- In maritime carriage documented by standardized bills of lading, acceptance of printed arbitration terms may be inferred from signatures and endorsements tied to the bill of lading and from conduct consistent with good faith and established dealings.

## Conclusion

The court enforced the bill-of-lading London arbitration clause under New York Convention Article II, finding that the written record and the parties’ good-faith conduct established a valid arbitration agreement notwithstanding signature irregularities, and required the dispute to proceed in arbitration rather than Geneva courts.


Compagnie de Navigation & Transports SA v. MSC Mediterranean Shipping Co. SA, 21 Y.B. Com. Arb. 690 (Switz. 1996)