Arbitration Guarantee Agreement
The central issue for the court was to determine the correct approach under Part 6 of the ILO, where the existence of an arbitration agreement is disputed. (6) The jurisdiction of the sole arbitrator can only be based on the compromise clause of the loan agreement; all other dispute resolution clauses to which the parties refer provide for the jurisdiction of a national court. The fundamental issues that must be decided can therefore be framed as follows: if the respondents are bound by the compromise clause of the loan agreement and the claims filed against the respondents fall within the scope of that clause, the sole arbitrator is competent to make such claims. (13) In this case, respondent 2 was aware of the loan agreement and the compromise clause it contained. This is apparent from the following information: (i) respondent 2 signed the third amendment to the loan agreement three years after the guarantee was signed. (ii) The Third Amendment explicitly states that the dispute settlement mechanism of the loan agreement (i.e. the arbitration procedure of the IAF based in Finland) will apply. (iii) The parties agree that respondent 2 granted the guarantee of the loan to the respondent 1. Without prejudice to the findings of the sole arbitrator on the merits, respondent 2 was de facto involved in the performance of the loan agreement.
A.a On 9 November 2002, X._______ Ltd (“X.______”), a company organized under the laws of Cyprus, and Y._______, a company organized in accordance with Qatari law, entered into a subcontract (“contract” for the construction of an industrial complex in Qatar). X.______ agreed to carry out some dredging work to install a refrigeration system with seawater. Y._______ for his part, was to pay the price of labor, that is to say 13,750.-000.-USD. It was also required to grant its contractual counterpart a payment guarantee (“guarantee of payment”) 2 amounting to USD 7,500,000, which was to be issued by a bank or insurance company and which had to be authorized by X.______ (Article 14 of the Treaty). (1) It is indisputable between the parties that, on June 6, 2009, the plaintiff and respondent 1 entered into the loan agreement signed by the applicant and the respondent 1. In addition, the applicants and respondents 1 signed three amendments to the loan agreement. Respondent 1 does not dispute that the loan agreement and amendments were signed on his behalf. However, the respondents dispute that the loan agreement is longer and more enforceable, as it would have been replaced by several other agreements. On December 22, 2005, Y.______ submitted its response to the arbitration application and a counter-application. If the contract is governed by Swiss law, or even if the arbitration is simply in Switzerland, the authors of international contracts for which a guarantee will be subsequently issued should ensure that the guarantee contains a reference to the compromise clause contained in the main contract, since the strict views of the Swiss Supreme Court make it unlikely that the guarantor should submit to the jurisdiction of arbitration unless the guarantee can be clearly considered the intention to take responsibility with responsibility. The district court sided with Hutchinson and forced arbitration.
The clear language of the personal guarantee included the arbitration provision of the lease. The personal guarantee did not contain only financial commitments, as Solar Leasing proposed.