Data

Date:
11-09-2023
Country:
Switzerland
Number:
4A_13/2023
Court:
Bundesgericht
Parties:
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Keywords

LONG-TERM CONTRACTS - COOPERATION AGREEMENT - BETWEEN AN ITALIAN COMPANY AND A CHINESE COMPANY - GRANTING A TRADEMARK LICENSE AND TRANSFER OF KNOW-HOW IN RELATION TO SOME AIRCRAFT - EXPRESS CHOICE OF THE PARTIES OF THE UNIDROIT PRINCIPLES 2016 AS APPLICABLE LAW

Abstract

An Italian company and a Chinese company concluded a contract, called "general cooperation agreement", through which the parties regulated their cooperation process, namely, the granting of a trademark license and transfer of know-how how in relation to three aircraft owned by the Italian company. At the same time, the parties concluded a contract for the purchase of ten aircraft and three project development agreements (one for each aircraft model).

This framework agreement contained an arbitration clause in favor of an ICC arbitral tribunal based in Geneva, as well as the choice of the UNIDROIT Principles of International Commercial Contracts (UPICC) of 2016 as the lex contractus.

The cooperation process consisted of two phases: in the first phase the Italian company had to provide the flight material and the know-how for the production of aircraft to the Chinese company, which in turn had to assemble the various pieces to make the working planes. In the second phase the Chinese company was supposed to take over the production of the aircraft.

Due to some disagreements in the implementation of the project, the Italian company exercised its right to withdraw from the contract, complaining of non-fulfilments on the part of the Chinese company, and requested compensation for damages resulting from said contractual breaches.

The ICC Arbitral Tribunal ruled in favour of the Italian company.

The award has been challenged before the Swiss courts not for reasons relating to the applicable law, but because the lack of independence and impartiality of one of the arbitrators and for the violation of the adversarial principle.

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