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Case:
Court of Cassation. Commercial Chamber Case Banque Internationale pour le Commerce et l’Industrie de la Guinée v. SARL Grégori Internationale Application for Review 00-21591
Date:
08 July 2003
Translated by:
Trevor Brown
Copyright:
Professor B. S. Markesinis

THE COURT…..

(…)

Given that, according to the judgement under attack, there was signed,

(1) on 1 August 1988, between two corporations existing under the law of Guinea, Guinée Fleurs and Banque Internationale pour le Commerce et l’Industrie de la Guinée (“BICIGUI”), a framwork agreement for the financing of certain works to be carried out by Guinée Fleurs in two tranches ;

(2) Grégori International, a French corporation, which held an interest in the capital of Guinée Fleurs, became joint and several surety for its subsidiary up to an amount of F750,000;

(3) Guinée Fleaurs having been put into liquidation by a judgement dated 30 March 1993 of the court of Conakry (Guinea), BICIGUI, by a writ dated 13 May 1993, commenced proceedings in the Commercial Court of Toulouse against Grégori International for the payment of F750,000 under the surety contract and of a certain sum equal to the debit balance of the account of Grégori International in its books;

(…)

In view of Articles 1, 14 and 6-1 of the European Convention for the Protection of Human Rights and Fundamental Liberties, Articles 1 and 5 of the Additional Protocol thereto, together with Article 55 of the Constitution of 4 October 1958;

Given that it flows from the European Convention for the Protection of Human Rights and Fundamental Liberties and Articles 1 and 5 of the Additional Protocol thereto that any corporate person, of whatever nationality, has the right to the respect of its property and to be heard by an independent and impartial court;

Given that, in order to declare that the claim of BICIGUI had no standing, the judgement holds that that company cannot bring suit by reason of failure to satisfy the conditions of the Law of 30 May 1857 which subjects the right of foreign companies limited by shares (“sociétés de capitaux”) to the issuance of an authorisation by way of decree;

Given that, in so holding, although the provisions of the European Convention for the Protection of Human Rights and Fundamental Liberties, and the Additional Protocol thereto, have a superior value to that of the Law of 30 May 1857, the Court of Appeal breached the texts mentioned above:

FOR THESE REASONS (…) QUASHES AND ANNULS (…)

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