Facts
The Panamanian company Colon Container Terminal S.A. (CCT) commissioned the Spanish company Fomento de Construcciones y Contratas S.A. (FCC) to carry out civil engineering works in Panama. A dispute arose between the parties and the contract was terminated. FCC filed a claim on the merits before the Panamanian courts, CCT raised an arbitration exception. While the court proceedings were pending in Panama, CCT initiated arbitration proceedings in Geneva. The arbitral tribunal declared itself competent, despite the objection to jurisdiction raised by FCC.
FCC appealed to the Federal Tribunal against the arbitral award, arguing that the arbitral tribunal should have stayed the proceedings in application of the principle of lis pendens provided for in Art. 9 PILA.
Considerations
The Federal Tribunal upholds the appeal and annuls the arbitral award. It considers that the arbitral tribunal sitting in Switzerland must apply Art. 9 PILA if it is seized of the same matter as that already pending before a state court, Swiss or foreign. The violation of this rule of jurisdiction can be invoked under Art. 190(2)(b) PILA.
In the present case, the Panamanian courts having been seized first of a dispute on the merits between the same parties and concerning the same subject matter, the arbitral tribunal…