Airbus Group entered into several contracts in 2013, 2014 and 2015 with Asian Sky Group (“ASG”), a company registered in Hong Kong, for consulting activities in the field of aviation.
ASG, considering it had completed its missions, issued several invoices for a total amount of $ 1,810,000. Despite several orders to pay and a formal notice, these invoices remained unpaid.
ASG sued Airbus Group before the interim relief judge of the commercial court of Toulouse for the payment of the invoices, as an urgent interim measure. The court upheld its jurisdiction and accepted ASG’s requests, Airbus Group appealed this decision.
Airbus Group pretends that in the presence of an arbitration clause, which gives jurisdiction to the ICC, the interim measure is only possible exceptionally, if the arbitral tribunal is not yet constituted and in the event of emergency. In the present case, Airbus Group considers that the emergency, which is the situation likely to entail serious and irremediable consequences for the plaintiff, is not established.
Airbus Group states that Article 29 of the ICC Rules accepts the application of urgent interim or conservatory measures where a party cannot wait for the constitution of an arbitral tribunal. Hence, ASG had to seized the emergency arbitrator to obtain an urgent interim measure.
ASG states that, in application of Article 1449 of the French Code of Civil Procedure, when the parties have decided to submit their dispute to arbitration, they may nevertheless apply to the emergency judge to obtain an interim measure. The emergency in this case is established by the prolonged suspension in due payments of significant amount and by its financial difficulties.
ASG says that the emergency arbitrator procedure is only an option offered to the parties and not an obligation.
Toulouse Court of Appeal states that the arbitration clause renders state courts incompetent to hear claims related to the contract. But as long as the arbitral tribunal is not constituted and in case of emergency, the clause cannot defeat the jurisdiction of the court for urgent interim measures.
The procedure of the interim measures remains open to ASG but is subject to the condition of emergency. In this case, the Court considers that the emergency is proven by the presence of old invoices, of a significant amount and remained unpaid despite claims and financial difficulties of the company.
The Court states that Article 29 of the ICC Rules allows the party to seize the emergency arbitrator for an urgent interim or conservatory measures. This procedure is only an option for the party, who remains free to prefer the state judge for its interim measure claim.