## Facts

- Transport En Handelsmaatschappij “Vekoma” B.V. (Vekoma), a Dutch company, contracted to sell Maran Coal Corporation (Maran), a U.S. company, coke breeze (a coal byproduct).
- The contract provided for ICC arbitration seated in Switzerland and stated that Swiss law governed the contract.
- The arbitration clause required the parties to submit disputes to arbitration within 30 days after the parties agreed that the dispute “cannot be resolved by negotiation.”
- A dispute arose and the parties exchanged multiple communications attempting to settle the matter.
- On January 9, 1992, Maran sent Vekoma a settlement proposal and stated that if Vekoma did not respond by January 17, 1992, Maran would pursue arbitration.
- Vekoma did not respond by January 17, 1992.
- Maran did not file immediately; in April 1992 Maran sent another letter stating it was still waiting for a response to the January proposal.
- On April 13, 1992, Vekoma replied that it believed the matter was concluded.
- Shortly after Vekoma’s April 13 response, Maran filed a request for ICC arbitration.
- The ICC tribunal proceeded and issued an award in favor of Maran.
- Vekoma petitioned the Swiss Federal Supreme Court to set aside the award, arguing the tribunal lacked jurisdiction because Maran allegedly commenced arbitration after the contractual 30-day deadline had expired.

## Issues

1. Whether Vekoma’s nonresponse by January 17, 1992 constituted the parties’ agreement that the dispute could not be resolved by negotiation, thereby starting the contract’s 30-day period to commence arbitration.
2. Whether the Swiss Federal Supreme Court should annul an ICC award for lack of jurisdiction based on the petitioner’s time-limit objection under the arbitration clause.

## Decision

- The Swiss Federal Supreme Court dismissed Vekoma’s set-aside petition and left the ICC award in place.
- The Court accepted that the 30-day period tied to an agreement that negotiations had failed was not triggered merely by Vekoma’s silence in response to Maran’s unilateral January deadline.
- The Court upheld the tribunal’s jurisdiction and refused to annul the award on the asserted time-bar ground.

## Legal Principles

- Where an arbitration clause starts a filing period only after the parties “agree” negotiations cannot resolve the dispute, the trigger requires mutual assent (express or clearly shown by conduct) and is not established solely by one party’s ultimatum coupled with the other party’s silence.
- In interpreting negotiation-and-deadline language, later communications between the parties can matter in determining whether negotiations were still ongoing and when, if at all, both sides treated settlement efforts as ended.
- In Swiss set-aside proceedings against an international arbitral award seated in Switzerland, the Federal Supreme Court applies limited review on jurisdictional challenges and will not annul an award absent a qualifying defect under the governing set-aside grounds.
- A tribunal’s sustainable reading of the arbitration clause and its application to the parties’ communications will generally be respected in annulment proceedings, even if the losing party argues for a different trigger date.

## Conclusion

The Swiss Federal Supreme Court refused to set aside the ICC award, rejecting Vekoma’s claim that Maran missed a 30-day contractual deadline to commence arbitration because the clause required an agreement that negotiations had failed, and Vekoma’s silence after Maran’s January 17 date did not, by itself, establish that agreement.


Transport En Handelsmaatschappij “Vekoma” B.V. (Netherlands) v. Maran Coal Corp. (U.S.A.), Judgment of August 17, 1995