Transport En Handelsmaatschappij “Vekoma” B.V. (Netherlands) v. Maran Coal Corp. (U.S.A.)

Transport En Handelsmaatschappij “Vekoma” B.V. (Vekoma) (plaintiff) and Maran Coal Corporation (Maran) (defendant) contracted for Vekoma to sell Maran coke breeze, a coal byproduct. An arbitration clause in the contract stated that arbitration would take place in Switzerland under the rules of the International Chamber of Commerce (ICC). The contract was governed by Swiss law. The arbitration clause specifically required that the parties refer any disputes to arbitration within 30 days after agreeing that the dispute “cannot be resolved by negotiation.” A dispute arose between Vekoma and Maran. Numerous communications and attempts to settle the dispute were made, and on January 9, 1992, Maran sent a letter to Vekoma stating that if Vekoma failed to respond to its settlement offer by January 17, 1992, Maran would pursue arbitration. Vekoma failed to respond. Maran did not initiate arbitration but instead sent another letter to Vekoma in April stating that it was waiting for a response to the January letter. Vekoma responded on April 13, 1992, that it thought the matter was concluded, and Maran filed for arbitration shortly afterward. Arbitration occurred at the ICC, and an award was issued in favor of Maran. Vekoma petitioned the Swiss Federal Supreme Court to set aside the award on the ground that arbitration was time barred because Maran did not initiate arbitration within the 30-day deadline. Vekoma’s argument, which it also presented to the tribunal, was that its failure to respond to Maran’s letter by January 17, 1992, began the 30-day period because it showed that the dispute could not be amicably resolved. Therefore, Vekoma asserted, the arbitral award was invalid because the arbitral tribunal had no jurisdiction over the matter under the arbitration clause.