## Facts

- A Sudanese exporter (SOS) and a Swiss trader (Tracomin) entered a December 1980 oilseeds sales contract that provided for arbitration before the FOSFA Arbitration Board in London, using standard FOSFA terms incorporated into the deal.
- A dispute arose, and SOS sent letters and telexes requesting that the dispute be submitted to FOSFA arbitration.
- Tracomin replied in writing and appointed an arbitrator, expressly referencing SOS’s telex that requested arbitration.
- The London FOSFA tribunal issued an award against Tracomin, which Tracomin did not satisfy voluntarily.
- SOS sought recognition and enforcement of the foreign arbitral award in Switzerland.
- Tracomin opposed enforcement, arguing the arbitration agreement failed the New York Convention’s “agreement in writing” requirement.

## Issues

1. Whether an arbitration clause incorporated by reference into standard trade terms, combined with an exchange of letters/telexes, satisfies the “agreement in writing” requirement of New York Convention art. II(2).
2. Whether a party’s written appointment of an arbitrator in response to a written demand for arbitration constitutes written acceptance/confirmation sufficient under art. II(2).
3. Whether, once art. II(2) is satisfied, any Convention ground remains to refuse recognition and enforcement of the award in Switzerland.

## Decision

- The Swiss Federal Tribunal held that the parties had a valid arbitration agreement “in writing” within the meaning of New York Convention art. II(2).
- The court treated the parties’ correspondence—particularly Tracomin’s written nomination of an arbitrator referring to SOS’s telex—as confirming consent to arbitrate in the form required by art. II(2).
- Tracomin’s form-based objections were rejected, and the London award was recognized and enforced in Switzerland.

## Legal Principles

- New York Convention art. II(2) is satisfied when written communications between the parties, taken together, clearly evidence consent to arbitrate; the requirement is not limited to a single formally executed arbitration document.
- Incorporation by reference of standard-form arbitration terms can meet the “in writing” requirement, especially where the contractual documentation and dealings show awareness and acceptance of the clause.
- A respondent’s written act of appointing an arbitrator in reply to a written arbitration request can constitute written confirmation/acceptance of the arbitration agreement for purposes of art. II(2).
- Once the “agreement in writing” requirement is met, enforcement should not be refused absent a separate, established Convention defense.

## Conclusion

The Swiss Federal Tribunal enforced the London FOSFA award, concluding that the arbitration agreement satisfied New York Convention art. II(2) because the contract’s incorporated arbitration clause and the parties’ letters/telexes—especially the respondent’s written appointment of an arbitrator—demonstrated written consent to arbitrate.


Sudan Oil Seeds Co. Ltd. v. Tracomin AG, XII Y.B. Com. Arb. 511 (Switz. 1985)