Facts
The dispute opposes A. A. and B. Ltd, who concluded a contract for the manufacture and sale of cigarettes under license in Croatia on 18 October 1994. The parties agreed to submit any dispute to international arbitration, in accordance with the UNCITRAL rules, and chose Swiss law as the applicable law.
The contractual relationships deteriorated from 1999, when B. reproached A. for not placing sufficient orders to supply the Croatian market. The parties exchanged several letters without reaching an agreement, and B. finally declared the immediate termination of the contract on 16 February 2000.
A. contested this termination before the Croatian courts, which issued an interim measure prohibiting B. from producing or distributing the cigarettes covered by the contracts. A. then initiated an arbitration procedure, which resulted in a final award on 11 March 2003 rejecting both the claim and the counterclaim.
A. filed a public law appeal with the Federal Tribunal, invoking the violation of its right to be heard in adversarial procedure.
Considerations
The Federal Tribunal examined A.'s appeal and considered that the right to be heard in adversarial procedure combines two notions: the right to be heard itself and the principle of contradiction. The Federal Tribunal recalled that the principle of contradiction guarantees each party the opportunity to comment on its opponent's arguments and to examine the evidence presented by them.
The Federal Tribunal found that the arbitral tribunal had based its decision on a contractual provision (Art. 20 of the contract) that had not been discussed by the parties during the arbitration procedure. The Federal Tribunal considered that this provision had not been raised by the parties and that the arbitral tribunal had not invited the parties to comment…