COLLECTION OF ICC ARBITRAL AWARDS. 2008-2011 VF PDF

Collection of ICC Arbitral Awards
2008 -2011
Recueil des sentences arbitrales de la CCI
i
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COLLECTION OF ICC ARBITRAL AWARDS

2008 -2011
RECUEIL DES SENTENCES ARBITRALES DE LA CCI
2008 - 2011
Jean-Jacques Arnaldez Yves Derains Dominique Hascher
IdUdU
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The Collection of ICC Arbitral Awards 2008—2011 has already been published in the Yearbook
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ISBN: 978 90 411 4916 9

ICC Publication No. 748E
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© 2013, The International Council for Commercial Arbitration (ICCA) on the individual awards
published in the Yearbook Commercial Arbitration
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Table of Contents
The Authors vii
Foreword to Volume VI ix
How to use this book? xi
Abbreviations xiii
Consolidated Analytical Table of Volumes I to VI xv
ICC Arbitral Awards 2008 - 2011 1
Key-word Index, 995
Table of Cross-Referenced Cases 1013
v
Table des matières
Les auteurs. vii
Introduction au Volume VI. x
Comment utiliser ce livre? xii
Table analytique consolidée des Volumes I à VI xv
Sentences arbitrales de la CCI 2008 - 2011 721
Index des mots-clés 1005
Table de correspondence des références 1013
vi
ÍW
The Authors / Les auteurs
Jean-Jacques Arnaldez
Lecturer, University Panthéon-Sorbonne (Paris 1)

Former Deputy-Registrar of the International Court of Justice (1994-2008)
Former Counsel, ICC International Court of Arbitration (1982-1994)
Yves Derains
Lawyer, Paris Bar

Former Secretary General, ICC International Court of Arbitration (1977-1981)
Dominique Hascher
Judge, Supreme Judicial Court (France)

Adjunct Professor of Law, University Panthéon-Sorbonne (Paris 1)
Former General Counsel and Deputy Secretary General of the International Court
of Arbitration of the ICC (1990-1998)
vii
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Foreword to Volume VI
1. This sixth volume of the Collection of ICC Arbitral Awards contains the awards
that have already been published between 2008 and 2011 in the "Yearbook
Commercial Arbitration” and in the "Journal du Droit International" (Clunet).
2. As in the first fifth volumes, the year when the award was rendered may not
coincide with the year when it was reported in one of these publications.
3. Some awards are reproduced both in English and in French. This is the case with
awards that were originally published simultaneously in the "Journal du Droit
International" (Clunet) and the "Yearbook Commercial Arbitration."
4. The Analytical Table of Volume VI covers all awards contained in the six
Volumes of the Collection of ICC Arbitral Awards. A page number preceded by
“I” refers to Volume I and if preceded by “U”, “III”, “IV”, “V” or “VI” refers
to Volume II, III, IV, V or to Volume VI. Although the extracts of awards that
figure in the first five volumes are not reproduced in Volume VI, the reader can
therefore limit his search to the Consolidated Analytical Table of Volume VI and
then look up the case extract in Volumes I, II, III, IV, V or VI as the case may be.
5. From Volume II onwards, the Consolidated Analytical Table refers to the first
page of the award and not necessarily the page where the point in question is to be
found, which constitutes a change from Volume I. The reader will thus be directed
to start reading the case from the beginning. In some cases, the reference will
already be found in the summary, which will allow the reader to go straight to the
part of the commentaries which sometimes follow the award.
6. At the end of Volume VI, the reader will find a Table of Cross-Referenced Cases
to the "Journal du Droit International” (Clunet), the "Yearbook Commercial
Arbitration" and “The International Construction Law Review, " for each of the
awards published in Volumes I to VI of this Collection. This table will enable the
reader, looking at a given award, to rapidly obtain complete references in one or
several of these three publications.
ix
Introduction au sixième volume
1. Ce sixième volume du Recueil des sentences arbitrales de la CCI regroupe les
sentences qui ont déjà été publiées entre 2008 et 2011 au « Yearbook Commercial
Arbitration » et au « Journal du Droit International » (Clunet).
2. Comme dans les cinq premiers volumes, l’année durant laquelle la sentence a été
rendue peut ne pas coïncider avec l’année de sa publication dans l’une de ces
publications.
3. Certaines sentences sont reproduites tant en anglais qu’en français. C’est le cas
de celles qui ont été à l’origine publiées simultanément au « Journal du Droit
International » (Clunet) et au « Yearbook Commercial Arbitration ».
4. La Table analytique du sixième volume couvre l’ensemble des sentences

reproduites dans les six volumes du Recueil des sentences arbitrales de la CCI. Une
page précédée d’un « I » renvoie au volume I et précédée d’un « II », « III », « IV »
ou « V » ou « VI » au volume II, III, IV, V ou au volume VI. Dans la mesure où les
extraits de sentences qui figurent dans les cinq premiers volumes ne sont pas
reproduits dans le sixième, le lecteur limitera donc ses recherches à la Table
analytique consolidée du volume VI, puis se reportera, selon le cas, aux volumes I,
II, III, IV, V ou VI.
5. A compter du second volume, la Table analytique consolidée renvoie à la

première page de la sentence et non pas nécessairement à la page où figure la
référence recherchée, ce qui constitue un changement par rapport au premier
volume. Le lecteur sera ainsi conduit à commencer la lecture de l’affaire à son
début. Dans certains cas, la référence se trouvera déjà dans le sommaire, ce qui lui
permettra en particulier de se reporter facilement à la partie du commentaire qui
suit éventuellement la sentence.
6. A la fin du volume VI, le lecteur trouvera une Table de correspondance des

références au « Journal du Droit International » (Clunet), au « Yearbook
Commercial Arbitration » et à « The International Construction Law Review », de
chacune des sentences publiée aux volumes I à VI. Cette table permet ainsi au
lecteur d’obtenir rapidement pour une sentence donnée ses références complètes
dans l’une ou plusieurs de ces trois publications.
x
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How to use this book?

First situation: the reader knows the case number
The reader who wishes to find the award rendered in case number 11776 will
consult the Table of Cross Referenced Cases and find that this award figures at
page 767 of Volume V.
Second situation: the reader is looking for a specific issue
The reader who wishes to know whether a particular question has been an issue in
an ICC arbitration, will consult the Consolidated Analytical Table of Volume VI
which will send him to the pages of the awards published in each of the six volumes
which deal with the point in question.
The reader who is looking for a particular subject, should he not know the exact
terminology in French or English, can consult one of the Key Word Indexes which
will give him the corresponding notion in the other language if the same issue exists
in the awards published in that other language.
Third situation: the reader wishes to give the complete references of an award
The reader will consult the Table of Cross-Referenced Cases and will thus obtain
for each of the awards:
- on the one hand, its complete references in the "Journal du Droit International”
(Clunet) or ‘‘The International Construction Law Review,” in particular with the
mention of the initials of the author whose commentaries follow the award, and
also in the “Yearbook Commercial Arbitration”:
- on the other hand, the indication of the volume and the page where it appears in
the Collection of ICC Arbitral Awards.
Paris, March 2013
Jean-Jacques Amaldez Yves Derains Dominique Hascher
xi
Comment utiliser ce livre?
Premier cas : le lecteur connaît le numéro de l’affaire
Le lecteur qui souhaite par exemple trouver la sentence rendue dans l’affaire 11776
se reportera à la Table de correspondance des références et constatera qu’elle est
publiée à la page 767 du volume V.
Deuxième cas : le lecteur cherche une donnée spécifique
Le lecteur qui veut savoir si une question particulière a été abordée dans un
arbitrage CCI, consultera la Table analytique consolidée du volume VI qui le
renverra aux pages des sentences publiées dans chacun des six volumes où la
question est évoquée.
Un lecteur qui cherche un point particulier et ignore la terminologie exacte en

anglais ou en français s’aidera de l’un des deux Index des mots-clés qui lui fournira
la notion correspondante dans l’autre langue dans la mesure où le point en question
est traité dans les sentences publiées dans cette langue.
Troisième cas : le lecteur souhaite donner les références complètes d’une sentence
Le lecteur se reportera à la Table de correspondance des références et obtiendra au

regard de chacune des sentences:
- d’une part, ses références complètes au « Journal du Droit International »
(Clunet) ou à « The International Construction Law Review » avec en particulier la
mention des initiales de l’auteur des observations qui la suivent, ou encore au
« Yearbook Commercial Arbitration »;
- d’autre part, l’indication du volume et de la page de sa publication au Recueil des
sentences arbitrales de la CCI.
Paris, mars 2013
Jean-Jacques Amaldez Yves Derains Dominique Hascher
xii
Abbreviations / Abréviations
Arb Int Arbitration International (London)
Bulletin ASA Bulletin de l’Association suisse de

l’Arbitrage (Bâle)
Bulletin ICC/CCI The ICC International Court of Arbitration

Bulletin / Bulletin de la Cour internationale
d’arbitrage de la CCI (Paris)
i
DIS Schriftenreihe des Deutschen Instituts fur
■ V Schiedsgerichtswesen, Band 6, Band 8, Carl
Heymanns Verlag KG, Kôln, Berlin, Bonn,
München
ICLR The International Construction Law Review

(London)
JDI Journal du Droit International (Clunet)

(Paris)
JIA Journal of International Arbitration

(Geneva)
Jahrbuch Jahrbuch fur die Praxis der Schiedsger-

ichtsbarkeit, Band, 1, 2, 3, 4, Verlag Recht
und Wirtschaft, Heidelberg
RDAI Revue de Droit des Affaires Internationales:

International Business Law Journal (Paris)
Rev. Arb. Revue de l’Arbitrage (Paris)
YB ICCA Yearbook Commercial Arbitration

(Deventer, The Netherlands)
xiii
i
Consolidated Analytical Table

of Awards published in
1974-2011
Table analytique consolidée

Des sentences publiées en
1974-2011
Consolidated Analytical Table
of Awards published in
1974 - 2011
i-:-. ..a
-"-ÿ--'"-"T;:-:
_ 2,ÿ
Analytical Table
A
Volume Page
Abuse of law
and amiable composition 1 376
and Libyan law II 302
and obligation of good faith IV 953
exception to the rule pacta sunt servanda II 380, 386
to exercise right under a bank guarantee I 86
to terminate contract of distributorship I 32
VI 811, 843
Actor sequitur locum rei I 308
Actori incumbit probado
See Evidence
Adaptation of contracts III 256
IV 321, 527, 533
competence of the arbitrator acting as amiable
compositeur to amend contract I 320, 503
II 380, 437
-due to a change in external conditions I 293, 300
—provision relating to
Adhesion contract
— I 199, 301
distributorship contract was not an- I 199

II 89
Adjustment of price
- currency equivalence clause I 233
- due to devaluation or inflation I 26
Administrative Contract
- international— III 76, 475
- mining concession I 219
See also State Contract
Advance payment guarantee
See Guarantee
Agency Contract I 122, 316, 332
II 293
III 452
IV 214, 333
V 141, 629, 797
VI 41, 759,781,803
xix
- acquisition by principal of company in country of
agent and creation of public confusion as regards
representation I 122
III 100
and applicable law I 123
IV 333, 389
V 141, 743
automatic termination clause 1 204
characterization by the arbitrator VI 759, 781
claim for commission relating to sale outside the territory II 80
exclusive concession in Egypt I 499
exclusive concession in the U.S.A. and Mexico I 185
exclusive sales in Italy of products of Tunisian origin II 318
exclusivity of agent III 100
in Belgium IV 333
in France I 341
in Qatar IV 214
in the U.S.A. I 204
IV 94
invalidity for corruption I 507, 559
IV 561
service agency IV 214
termination of — II
IV
80
94, 214, 333
V 743
VI 759
transformation of a sales concession into a production
concession I 199
Agreement to arbitrate
See Arbitration Agreement
Algeria
—
- Civil law of based on French civil law
- Decree 67-90 of 17 June 1967 on the Code of Public
I 69
Markets III 555

- Decree 82-145 of 10 April 1982 and Decree 84-51 of
25 February 1984 on the Regulation of Public
Operators Markets III 557
- Law No. 78-02 of 11 February 1978 on the State
Monopoly of Foreign Trade III 225
— —
Law of applied to substance
Allocation of payments
1
II
69
227
Amiable compositeur, power of the arbitrator
— and agreement of the parties regarding price
- and arbitral procedure
II 437
- and delay in the submission of briefs I 433

— and assessment of damages
—
- use of power as when deciding amount of
I 436
incidental damages II 27
xx
••••-ÿs:-;: „j -
't
and calculation of interest I 348

II 43, 435
and discretion to award costs of arbitration II 43
and evaluation of the parties’ respective rights
according to a specific legal system II 318
and international trade usages II 380
and international transnational public policy I 449
III 613
and laws of public order and morals I 20
and provisions of the contract I 85, 381, 438,
447, 505
II 43, 380
! filling contractual gaps I 505
III 613
no need to decide applicable law when acting as— I 78, 348, 355, 377
II 361
not a mediator I 506
—
power of is implicit choice of Lex Mercatoria
regarding fraud
I
II
110
380
scope of the power of the arbitrator m 613
to apply the conflict of law rules of the forum i 401
to arbitrate ex aequo et bono I 225, 325
to dispense from looking for a conflict of law system
in order to determine the applicable law I 487
V 553
to dispense from the obligation to abide by the
provisions of the law applicable to the merits with the 20, 225, 353, 403,
exception of mandatory provisions I 500
II 380
III 613
to order interim measures I 110
to provide a solution which is fairer than the solution
deriving from the strict application of the law II 318
to reduce the price I 443
to moderate the consequences of an automatic II 380
cancellation provision
to revise/adapt the contract I 323, 440, 506
II 380, 437
damages
—
- use of power as when deciding amount of incidental
II 27
See also Amiable composition
ICC Arbitration Rules:
-of 1975: Article 13(4)
-of 1998: Article 17(3)
xxi
Amiable composition
— and abuse of law
- and equity
]
I
376
20, 74, 97
VI 739
and fraud II 380
and Lex Mercatoria I 382
- to order set-off when applying Lex Mercatoria I 113
- in addition to application of Lex Mercatoria II 43
—
clause of does not exclude an evaluation of the
parties’ respective rights according to a specific legal
system II 318
—
clause of frees the arbitrator from the requirement
that he apply rules of law I 347, 353
V 553
—
clause of frees the arbitrator from the requirement
that he determine a specific applicable law I 377
clause of — frees the arbitrator from the requirement
to apply a conflict of law system for determining the
applicable law I 487
V 553
—
clause of is not a choice of law clause I
II
383
318
definition
- in French law I 443, 502
II 361
VI 739
- in Italian law I 502
-in Swiss law I 501
-in Tunisian law II 361
See also Applicable Law, to substance
Ex aequo et bono
Equity
Lex Mercatoria
Anational rules
absence of choice of a national law by the parties
favors application of —
and law applicable to arbitration agreement
II
II
330
534
definition I 189, 190, 191
II 437
- good faith as a general principle of— II 352, 535
—
-
in international trade
obligation of the creditor to minimize damages is an
II 535
anational substantive rule I 229, 236

— reference to an international institutional arbitration
system favors application of —
I 382
xxii
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Applicable law, to arbitration agreement

- a reference to the ICC Arbitration Rules gives the
arbitrator, absent indications to the contrary, the
power to decide on the validity and scope of an
arbitration agreement independently of the law
governing the contract II 264, 330
V 141
and arbitrability of the dispute after bankruptcy of
one of the parties to the arbitration I 240
application of lex fori II 180, 279, 534
IV 1
VI 543
application of the general principles of law and of
international trade usages II 263, 330, 400
III 467
common intent of parties prevails in several laws II 53
V 141
common intent of parties as connecting factor I 149
II 53
V 141
VI 973
determination of the sources of the— I
II
466
263, 410
- French law II 274
- German law I 316
- Greek law I 17
- ICC Rules II 199
- Swiss law I 474, 527
- law upholding the validity of arbitration agreement III 555
does not coincide with applicable law to the merits I 146, 216
II 142, 279, 330
III 567
V 141
- effect of choice of applicable law to contract on
validity of arbitration agreement 111 195
- for arbitrator sitting in Geneva I 43
V 273
- for determination of the arbitrability of competition
law issues I 549
- ICC Rules (as source of law) II 199
- in order to be effective, the arbitration agreement
must be grounded in a legal system II 410
- in the absence of a choice of law with respect to the
substance II 534
- law of the place of conclusion of the agreement n 352
—
- localizing of the in a legal system
- reference to anational norms failing a choice by the
II 263
parties of a national law II 330
xxiii
— taking into consideration of the place of arbitration
agreed upon by the parties as an element of localizing
their will II 280
- the expression of “the law applicable” in a contract
is not a choice of law applicable to the validity of the
arbitration agreement, but of substantive law II 142
- validity of arbitration agreement
- law governing the arbitration agreement I 17, 146, 316
m 75, 134, 315, 467,
567
IV 1, 32
V 141, 273
VI 543, 803, 973
- validity of law of the seat of arbitration I 216
II 279, 320, 352,410
VI 543
- Lex fori (Zurich) or Egyptian law n 180
- Lex fori (Swiss law) I 534
- under Brazilian law n 33
- under Egyptian law 11 32
- under Spanish law
seat of arbitration
—
validity of choice of is governed by the law of the
I 216
II 279,320,352,410
Capacity to enter into an arbitration
agreement
Applicable Law to procedure
Terms of Reference
Applicable Law, to procedure II 361
— absence of parties’ choice
and compliance with the public policy of the place of

I
II
3, 400
69
arbitration and of the place of enforcement of the

award I 346
and constitution of the arbitral tribunal II 33
Canton of Geneva I 40, 69, 207, 399
II 11
Canton of Zurich II 180
Concordat on arbitration, Swiss I 69, 400
French international arbitration law I 170
ICC Rules subject to the condition that they do not
conflict with Iranian or French arbitration law II 264
interference of national legislator with arbitration in a
foreign country I 45
law of the Canton of Geneva I 400
xxiv
i:
law of the seat of arbitration I 207, 399

of place of arbitration 1 3, 12, 207, 347
V 335
- in the absence of the parties’ agreement II 69
- only where ICC rules do not cover the matter I 52
- the expression “the law applicable” in a contract is
not a choice of procedural but of substantive law II 142
See also ICC Arbitration Rules:
-of 1975: Article 11
Applicable law, to substance
a) In General
— anational rules I 189, 257
IV 300, 489
- and adhesion contract II 89
- conflicting contractual provisions I 450, 559
- conflicts in time I 365
- connection of the contract with a national law III 452
IV 300
consortium contract governed by the law applicable
to the main contract I 359
construction usages I 304
contractual provisions and trade usages II 361
III 623
IV 485
V 81, 647
- exclusion of all national laws V 513
- general principle governing commercial international
law I 78
V 529
- general principles of international private law as
stated in International Conventions III 185
- general principles of law I 78, 190
II 154, 293, 298,
302, 330
See General Principles of Law III 475
IV 489
V 609
- general principles of law and fairness in international
transactions I 274
- general principles of law common to civilized nations I 185, 187
- government procurement laws III 108
- hierarchy between the provisions of the contract and
the law applicable to the contract I 197
- hierarchy between the provisions of the contract,
international usages and national law I 356
xxv
IV 241
in agency contract I 123
in multiparty arbitration I 355
international trade usages I 189, 190
II 387
V 529
international trade usages otherwise known as Lex
Mercatoria II 437
V 609
- legal norms I 189
- localization of subcontract I 355
- non-application of national Jaw to State contracts ni 475
See State Contract v 513
- non-retroactive effect of statutes in 315
— renvoi
- designation of a national law by the parties
I 19
interpreted as a renvoi to the private international

law I 313
- subsidiary role of renvoi in international arbitration I 331
- rules of Natural Justice V 291
b) Choice of — by the parties
— absence of indication in the contract by the parties I 186, 189, 191,
219, 301, 327,
332, 377, 417,
450, 456, 459,
555, 561
II 293, 318, 330,
361, 420
IV 489
V 513, 609, 629
agreement of the parties during the course of the
proceedings II 298
V 677
alternative choice in the arbitration clause I 559
II 293
— by reference
conflict of law rule agreed by the parties
IV
I
493
31, 52
- selection of system of law to interpret parties’
choice of law II 142
IV 300
contract providing for the application of a national law
together with the general principles of law and justice I 413
contractual choice of the law of the seller III 401
cumulative application of the law chosen by the
parties with the public policy of the place of
enforcement I 454
xxvi
-fi - í-r’jtwiv
-- - .1'- - r
■
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-•-• -• -
■- ,-v -A-- A'
agreement
—
effect of to contract on validity of arbitration
III 195
freedom of the parties to choose the applicable law is
a principle of private international law I 210, 214
implicit choice V 513
VI 893
international law IV 489
“natural Justice” V 513
negative choice V 513
no conflict between designated applicable laws III 209
IV 485
party autonomy I 210
III 134
IV 493
V 15
- validity of parties’ choice II 142
V 629
- unlawful choice of law clause IV 7
- where parties have made reference to some specific
provisions only of the law of a particular country II 465
- tacit choice of law (no) IV 385
—
c) Choice of by the arbitrators
- absence of lex fori for an international arbitral
tribunal I 4
II 263
choice not limited to a single national law I 188
choice of conflict of law rules
-cumulative application of several conflict of law
rules I 199, 410, 460
II 249,318, 394
IV 300
- of France 1 170
- of the place of arbitration I 16, 18, 19, 43, 62,
332, 459
II 136
V 187
- the arbitrator is under no obligation to apply the
conflict of law rules of the place of arbitration I 118,459,491
- the arbitrator is under no obligation to choose
conflict of law rules I 311,463, 487
- the arbitrator is under no obligation to have
reference to a specific national conflict of law
system I 358
II 264
111 567, 622
xxvii
- comparison of conflict of law rules most closely
connected with dispute III 315
IV 300
- direct application of a conflict of law rule III 622
- direct localization I 418,459,462,487
- freedom of the arbitrator to apply the rule of conflict
which he deems appropriate I 332, 472
II 293, 318
- freedom of the arbitrator to make up his own
conflict of law rule I 463
- freedom of the arbitrator not to refer to a national
system of conflict of laws I 352
III 567
- general trend: cumulative application of general
systems of private international law, voie directe I 360, 457
- generally recognized principles in conflict of laws
matters I 264, 334
II 292
III 622
- taking into consideration of International
Conventions II 294, 394
V 187
- place of performance in automobile distributor
contract I 31
- place of performance in license contract I 52
- Qui eligit judicem digit ius I 332
- seller’s country in F.O.B. sale/purchase contract II 223
- universal rule I 209
- in agency contract I 123
- in construction contract I 107
- in distributorship contract I 31
V 609, 783
- in shipbuilding contract I 61
choice of connecting factors
- plurality of connecting factors III 567
- convergence of localization indicia I 254
IV 385
- currency of account and payment I 14
- evaluation of the different connecting factors II 293
- to bank guarantee I 88, 386
V 81
- centre of gravity test I 119,167,457,491
II 53
III 452, 467, 567
- characteristic performance of the contract I 358
II 293
V 673, 783
xxviii
--
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- closest connection to F.O.B. sale of goods contract II 223

- closest connection to the contractual relation I 17, 52, 88, 170,
192, 303,459, 487
III 309
IV 385, 536
V 187, 673
VI 179
- reasonable relationship between the dispute and the
chosen law 1 188
- currency of account and payment I 14
- implied or supposed intent of the parties I 187, 302, 402
- international organization party to an I 190
arbitration I 14
- language of the contract I
V 513
14
- nationality of the arbitrator chosen by the parties I 418

- object of the contract 1 192
- place of arbitration I 302, 418, 461
II 361, 410
- place of assembly of the equipment I 254
- place of conclusion of the contract I 192, 410
II 394
IV 385
- place of delivery I 254
- place of erection of the public works I 258
- place of performance of the contract I 5, 15, 32, 52, 186,
463
II 67
III 68, 148
IV 385
- place of performance of seller’s obligations I 254
- place of starting up of the equipment I 254
- place of technical assistance I 254
- place of the parties’ residence I 17, 192, 463
- international arbitration as an indicia pointing I 17, 52, 190, 382
to the application of anational rules of law
IV 17, 52, 321, 527
V 513
- seat of consortium 1 359
- seat of ICC in Paris I 14
- law of the country of the principal place of business
of debtor II 293
III 622
V 187
See Rome Convention
xxix
- general trend is to apply the domestic laws of the
residence of the debtor of the essential undertaking
II 223
choice of law which favors the validity of the contract I 560
II 53, 293
III 555
combined application of a national system of law and
of Lex Mercatoria I 415
cumulative application of conflict of law systems
connected with the dispute I 186, 254, 491
II 249,293,318, 394
III 309, 315, 500,
555, 606
V 783
cumulative application of several substantive laws I 12, 332
II 249, 361
II 53
- no cumulative application of several laws I 262
- and multinational group of companies
cumulative application of the law of the seller, buyer II 249
and the place of arbitration
—
determination of the is not necessary to rule upon
the termination of the contract
I 305, 556
—
determination of the is not necessary when the
general principles for interpretation of contract and
I 208, 556
common sense rules shared by civilized nations may

be applied
discretionary power of the arbitrator for choosing the I 186, 188, 302,
applicable law 327, 401,463,491
III 452
exclusion of all national laws I 258
V 97
- in license contract I 52
intention of the parties as presumed by the arbitrator I 192, 331
II 142
V 513
VI 179, 231, 893
- law of the buyer III 467
- law of the seller I 140, 450
II 223,318,361,394
V 647
legitimate expectations of the parties II 293, 361
IV 474
V 513
- Lex fori 1 186
Lex loci delicti I 359
xxx
.ÿ'.rÿZLT.r :-r ri. -7-í. V.i'l --V • TT Zîsitt-Lzæi
Lex loci solutionis I 347

—
no need to decide where dispute can be resolved on
the basis of the contract 1 21
no need to decide where arbitrators are amiable
compositeurs I 78
no need to decide where parties are silent on the
question I 78
V 677
rules of conflict of laws at domicile of both parties
must coincide 1 17
subsidiary role of applicable law rules HI 475, 623
UNIDROIT Principles V 513, 609
voie directe I 109, 303, 330,
334, 352, 401,
457, 463, 486
III 452, 467, 555
V 513, 609, 783
VI 985
d) Public policy and Mandatory Rules of Law
— Belgian Act on Termination of Exclusive
Distributorships of 27 July 1961, art. 4 is
not a mandatory rule III 195
- compatibility with international public policy I 271
II 437
conditions for the application by the arbitrator of
a law foreign to the legal system of the contract III 577
imperative provisions of a law other than the lex
contractus III 405
IV 402, 543
VI 843
imperative provisions of law III 405, 452
IV 474, 543
V 703
mandatory rules III 134, 475, 577
IV 32, 389, 402, 474,
516
See also Amiable Composition
Amiable Compositeur
Arbitration Agreement
Lex Mercatoria
General Principles of Law
ICC Arbitration Rules:
- of 1975: Articles 13(3) and 13(5)
- of 1998: Article 17(1)(2)
International Trade Usages
International Convention
State Contract
xxxi
Appointment of arbitrator
— applicable rules to — II 33
—by an appointing authority other than the ICC
- by ICC when appointing authority fails
I
I
247
8
- in multiparty arbitration n 11, 495
- party’s right to appoint in multiparty arbitration ii 495
- refusal of a designated authority to appoint I 247
- regularity of —
- violation of contractually agreed upon procedure
I
I
8
247
Arbitrability II 24
—
- of disputes under the Belgian Act on the
Termination of Exclusive Distributorship of
27 July 1961 III 195
- —
of exclusive distribution agreement III
IV
134
569
- of RICO claims III 577
IV 474
— of tax disputes III
IV
332
241
See Tax
- after bankruptcy of a party in the arbitration I 237
IV 308
and European and Community law I 179, 341, 546
IV 300, 333, 543
V 561, 719
and public policy I 184, 547
IV 569
V 67, 561, 783
authority of arbitrators III 567
V 67, 561, 719
existence of a dispute (yes) I 499
license agreement
—
law applicable to of subject matter of dispute III
IV
III
75, 567
1, 389, 543, 569
435
non-arbitrability of certain matters pursuant
to national provisions III 315
IV 333, 569
V 67
of a patent agreement III 435
IV 470
of a tort claim II 358
III 336, 577
V 207, 719, 777
restraint of competition III 561
IV 300
VI 543
xxxii
-, jr.rmj~ Æ Tjf
--- ..
See also Competition

Intellectual Property
Arbitral clause
- —
by reference III
IV
555
373
V 807
— concluded on behalf of unregistered company
and power of the agent to sign arbitration agreement
IV 187
on behalf of a company II 534

and subsidiary clause on prorogation of jurisdiction II 293
and assignment of contract III 555, 600
V 437, 567
VI 311, 729
See Contract
- binding effect of arbitration agreement with respect
to party who has not signed it II 11
IV 308
broker’s authority to conclude—
conclusion of arbitration agreement through
111 68
incorporation by reference to general conditions

of sale of one of the parties II 533
conditions of form
- in Austrian law II 352
- in French law
- in German law
II
1
274
215
IV 187
- in Swiss law II 279, 352, 534
V 249
VI 729, 859
court proceedings in violation of — III
IV
34
94, 119
V 107
VI 871
- effect of choice of applicable law to contract on
validity of —
- effect of national public policy provisions on
III 195
international
See Public policy
— III 315
— effects of the non-entry into force of the contract

on an — II 420
- enforceability of arbitration clause against member
companies of group which have not signed the— I 154,261,263,465
II 279
xxxiii
Ill 277
IV 451, 474, 510, 569
V 537
VI 885
enforceability of arbitration clause against the legal
successor and assignee I 44, 46, 316, 453
existence of— during precontractual negotiations II 535
IV 548
existence and validity IV 119
V 229, 249, 273,
689, 727
VI 543, 945
extension of — included in a works contract to
subsequent orders II 274
extension of— to a subsequent contract II 264
group of contracts V 677
VI 729
identity of party — III
IV
108, 277
94, 119, 455
V 167, 187, 273,
537, 567, 599, 677
VI 41, 729
implicit—
initialed but not signed
III
II
555
330
interim measures and — III
V
34
363
VI 871
See Interim measures
- interpretation III 401, 435, 456
V 155, 609, 689
VI 795, 945
—
- interpretation of in a license agreement
- pro validate interpretation
I
I
539
250, 560
II 361
-strict interpretation of — I 242, 425, 474
- jurisdiction regarding dispute arising from
subcontract III 175, 456
—
—
no extension of to a related contract 1
IV
473
455
no jurisdiction over closely related contract III 282
no time bar to contest existence of —
non enforceability of arbitration clause against a
III 68
corporate officer II 400

non enforceability of arbitration clause signed on
behalf of legal person against a physical person
(absent fraud) II 380
IV 569
xxxiv
■-■i
— '¡-'-.'-.ÿy-.-ÿ-':
■
non existence or invalidity of — III

VI
68
795
novation I 394
468
—
obligation not to designate an arbitrator in the
obligation to perform the contract pending decision

III
II
III
320, 400
75
of the arbitrators I 536

pathological III 435
V 609, 689, 807
VI 795
;. - International Chamber of Commerce in Geneva 1 317, 425, 528
IV 227
VI 871
- International Chamber of Commerce in Zürich I 525
- meaning of “International Chamber of Commerce,
Zürich” II 180
- Chamber of Commerce of Paris 111 435
- other designations II 339, 361
—
- and partial invalidity of
- deficient wording (rejected)
II
H
339
53
- recourse to anational rules to prove existence of—
(rejected) II 535
- requirement of specific agreement for the (no) — II
IV
264
510
scope of — II
III
18
46, 315, 577
IV 300, 536
V 67
VI 879,985
—
scope of the towards a non signatory party I
II
242
11, 279, 410
III 420, 456
IV 455
V 207, 677, 807
VI 231,885,973
—
separability of from main contract I 216,218,318,
321,475,521
II 154, 264, 279,
352, 410, 420
III 420, 467, 555,
567, 613
IV 80, 308, 389, 431,
548, 569
V 107, 115
VI 729, 945
XXXV
contract
—
separability of ir bank guarantee from main
I 36
- is a general principle of international commercial
arbitration n 199
signature of the main contract by the subcontractor III 456
subrogation I 312
termination IV 579
terms of reference constitute— III 143
tort claim III 401, 420
IV 548
V 719, 777
VI 879
See Tort
- unfair behavior of party to — III
IV
34
579
UNIDROIT Principles V 115
VI 789
- universal succession is not a change of party 1 44, 46
— —
validity of as a substantive rule
—
- validity of during hostilities
in
I
456, 467
36
—
- validity of is a matter of jurisdiction separate from
invalid main contract II 53
— —
validity of providing for alternative fora II 199
— —
validity of under New York Convention and
Geneva Convention
III 134, 315
See New York Convention and Geneva Convention

— —
validity of when contract not signed I 139
— —
validity of a choice of in an employment contract I 306
—
- validity of a choice of must, absent an agreement to
the contrary, be determined in accordance with the
parties’ will and usages conforming to the needs of
international trade U 265, 330
- waiver of— III 468
IV 569
V 107, 363
VI 871, 973
written form
- as requirement for valid arbitration agreement I 155
II 264, 279, 352
V 249, 537
VI 859
See also Applicable Law, to validity of an
arbitration agreement
Capacity' to enter into an arbitration
agreement
Contract, Group of Companies,
Prima facie, Sovereign State
xxxvi
: ~r-r _ .1 - ■/V—
í,;
Arbitration Proceedings
- admissibility of counterclaim contingent on success
of main claim IV 198
- admissibility of documents V 751
- admissibility of a written statement II 286
VI 789
admissibility of an oral argument not stated in written
pleadings III 414
IV 7
adversarial nature of the proceedings III 447
-arbitrator denies further hearing II 165
-belated notification of a written pleading I 433
and parallel criminal proceedings V 553
VI 135
- and public policy of the seat of arbitration and of
place of enforcement of the award I 350
- award by consent II 298
- call of bank guarantee during the arbitration
proceedings I 484
II 302
- compatibility of fast-track procedure with ICC Rules III 209
See ICC Rules of Arbitration
- compliance with first stage of arbitration proceedings III 315
IV 461
VI 311
composition of arbitral tribunal III 332
confidentiality V 751
VI 135
- default of the defendant party III 447
- direct submission to ICC arbitration without prior
submission to the engineer in a FIDIC contract I 544
- discovery order VI 433
- extinction of an action I 492
- identity of defendants V 553
- injunction of a national court to stop— II 309
- issue of time bar is a procedural issue in English law I 540
- joinder of claims III 567
IV 94, 461
V 545
See Consolidation of related arbitrations
— language
- mission and authority of the arbitrator
V
III
669
447
IV 470
multiparty disputes III 277
xxxvii
new claim according to ICC Arbitration Rules I 259, 521
IV 32
VI 879
stay of arbitral proceedings III 277, 282
V 659
- obligation of the parties to refrain from aggravating
the dispute I 484, 512
V 315
— optional or mandatory character of a preliminary
conciliation procedure I 242
- partial award I 377
V 609
—— partial award or procedural decision
plea as to the arbitrator’s jurisdiction must
I 486
be raised in limine litis I 320

—— procedural orde
procedural timetabler
V
VI
761
789
— probative value of expert’s report
- time limit for introducing a counterclaim
I
I
286
317
- time limit for introducing a request for arbitration I 317
See also Terms of Reference
Law applicable, to procedure Res Judicata
Arbitrator
- amiable compositeur and agreement of the parties
regarding price II 437
See Amiable Compositeur
~ discretionary power of the— to choose the law
applicable I 1 88, 303, 463
- has no lex fori I 303, 463
n 263
See Lex fori of an international arbitrator
- is not obliged to follow a national system of conflict
of laws rules I 357
III 567
- is not the representative nor the organ of a State I 10, 248
- —
number of s when not specified
See Appointment of arbitrator,
I 51
Multiparty arbitration
- obligation of the— to take account of res judicata
effect I 328
See Res judicata
— power of the— to attach penalties
—
- power of the to take into account international trade
VI 917
usages IV 50
— —
power of the to draw its own conclusion from
failure of party to cooperate IV 232, 470
xxxviii
v
----
costs
—
- power of the to order payment of the advance on
V 545, 727
- power of the— to order provisional measures II 300
- powers of the— are circumscribed by the iaw
applicable to the arbitration and not by the law of the
place of enforcement of the award I 292
—
- refusal of to sign award
- role and immunity of—
I
I
60, 66
252
- scope of the submission to the arbitrator II 279
V 781
See also Competence of the arbitrator
Competence-competence
Dissenting opinion
Lex fori of an international arbitrator
Terms of Reference
Armed conflict
See Hostilities
Assignment
- - of bank guarantee V 81
- — of contract IV
V
7, 52
187, 437
VI 311
— of creditors’rights III
IV
555
341
V 167, 587
VI 811
— of debt III
VI
299
341
See Barter trade
- —of property rights IV 66
- law applicable to
— III
V
108
437, 567
validity of — III
IV
108
7
Association contract
- for a construction project in Iran II 264
Austria
Civil code
- article 863 IV 555
- article 1053 III 502
Federal law on private international law III 502
—
law of and apparent power of attorney
requirements under the law of — for the conclusion of
II 535
an arbitration agreement on behalf of a company II 535
xxxix
Autonomy of arbitration agreement
ICC Rules of Arbitration:
-of 1975: Article 8(4)
Autonomy of parties to select the proper law of the contract
See Applicable law, to substance
Award
consent award II 298
V 335
currency of award I 22
III 46
enforcement of— II 33
form V 637
-
—
interpretation of
authority of the arbitrator over interpretation and
correction III 332, 525
- power of the International Court of Arbitration over
interpretation of an award III 525
—
monitoring compliance of the by an expert
partial award
III 475
- authority to issue I 78, 154, 402, 485

II 3, 85, 279, 298,
300, 309, 320, 330
VI 213, 231, 843
- refusal by arbitrator to sign I 66
See also Provisional execution of the award
Res Judicata
Bank guarantee
— independent of the main contract and subject to the
sole production of documents II 345
abuse of right to call I 86, 482, 511
II 345, 400
advance payment II 43
and frustration I 4
contract
—
and separability of arbitral clause in from main
I 36
applicable law to
by Belgian Bank
— I
V
I
87
81
87
by Pakistan bank I 3
call under performance guarantee during arbitration I 162, 482, 512
xl
V VJ
_TX Ï. ■-■ -
'*.i
competence of the arbitrator to decide on the nullity

of a— I
II
481
400
competence of the arbitrator to suspend a — I 483
conditions for enforcement of — I 87
—
effect on when main contract terminated I 83
—
expiry of a does not deprive the seller of right to
claim penalties in case of delayed performance
I 423
first demand guarantee I 89, 386

II 400
V 81
for payment of contractual penalty I 423
contract
—
independence of a from the obligations of the main 1 424
II 400
- meaning of the word “unconditional” I 90
- nature of — I 87, 386, 485
V 81
obligation of guarantor undei IV 32
refusal by bank to pay I 87
V 81
release of — n 3
risk exposure — I
II
83, 87
43
See also Performance Bond
Bankruptcy
— of a party I
III
530
152, 487, 623
IV 308
V 703
VI 79
competence of the arbitrator III 487, 623
IV 308
See Competence V 703
- costs of arbitration III 550
-
dissolution of a party during arbitration I 23,41,42, 46,47,
237
III 623
VI 79
existence of claimant in bankruptcy III 152
French law of 25 January 1985 III 623
V 703
international effects of — I
III
239
487
VI 79
— not impossible to have recourse to arbitration III 622
xli
Barter trade Ill 592
- triangular clearing arrangement constituting
delegation of duty or assignment of debt III 299
See Assignment
Belgium
Civil code
- article 1 134 I 93
- article 1135 I 93
m 103
- article 1149 I 12
III 104
- article 1150 I 12
II 371
- article 1151 II 371
III 104
- article 1152 I 84
- article 1156 I 92
III 102
- article 1162 I 92
conflict of laws rules I 313
Law of 27 July 1961 on Exclusive Distribution
Agreements m 138
Law of 27 March 1985 on International Arbitration II 371
Law of 13 April 1995 on Commercial Agency V 743
Bill of Lading III 382
IV 15
Bonos Mores
corruption I 507
II 53
IV 1
V 575
bribery under Swiss law II 53
nullity of a contract violating I 494
II 53
IV 1
V 575
—
violation of through fictitious contract I
V
120
727
Boycott
against Israel I 59, 62
II 257
embargo VI 803
ordered by a State IV 455
Brazil
xlii
9
Code of civil procedure

public policy of — II 33
Breach of contract
- anticipatory breach of subcontract I 158
- continued performance regardless of dispute II 24
- due to demand for higher prices than agreed II 249
—
- causal link between and damages
- economic dislocation and inflation
VI
II
345
112
- essential breach of the contract I 198
- force majeure I 158, 172
V 97, 155
legislative act of Sovereign State can be a — I 125
—
liability for IV
V
66
437
VI 231
- material or not II 24
- refusal to pay royalties I 53
- (no) termination of contract due to — IV
V
52
127, 187,229, 291
- timely notification of — IV 267
See also Repudiation of contract Damages
Bribery
- extortion II 53
- in consultancy contract II 53
IV 561
VI 3
in French law I 509
in Iranian law I 509
in Korean law IV 431
in Swiss law I 560
V 575
evidence of bribery III 220
IV 32, 431, 561
V 575
VI 831, 945
- no estoppel from invoking nullity of immoral
contract III 239
- no legal costs awarded to party cooperating in illegal
contract III 239
- nullity of contract violating bonos mores under Swiss
Law III 239
- payment under null and void contract III 220
VI 3, 831
secret commissions III 239
V 575
xliii
simulated contract Ill 220
IV 431
See Contract
- traffic in influence III 220, 239
IV 1, 431, 561
—unjust enrichment
- violation of third party’s rights as violation of bonos
VI 3
mores III 239

Brokerage contract
- commission rate II 53
- qualification in Swiss law II 53
V 575
—
(invalidity of under Swiss law IV
V
32
575
c
Calculation of damages
See Damages
California, State of
- Civil Code
- Sect. 1511 III 232
—
- law of implies duty to act in good faith II 85
— mitigation of damages
- retroactivity of termination of contract
II
II
85
85
- revocation of acceptance in case of non-conforming
goods under California Commercial Code (section
2608) II 28
Cancellation of contract
—— after alleged force majeure
by anticipation
I
I
7
141
- of concession by a government I 218
- owing to error in contrahendo I 144
Capacity to enter into an arbitration agreement
- apparent power II 410
— application of the parties’ national laws
- the issue of the scope of a power of attorney must be
II 264, 352
decided according to the law of the place where the

agent has signed the arbitration agreement with the
third party II 352
- of a State/public entity I 126, 222, 283
II 257, 264, 361
IV 80, 341
Changed circumstances VI 95
i
xliv
■viry.jyyj.
;i
and consequences in French law I 298

changes in immigration rules II 450
contractual requirement to negociate in good faith IV 241
increase of oil price I 293
price increase I 297
II 302, 394
renewal of residence permit for foreign workers II 450
Charter Contract V 97
Claim
admissibility of — IV 341
V 599, 711
VI 41
admissibility of RICO claim III 336
—
amendment of allowed where reservation made
in request for arbitration
II 18, 180
for a force majeure event I 234

for non-conformity of the goods I 232
— not time-bared IV 80
waiver of contractual— III
VI
336
135
See also New Claim Waiver
Clause for the revision of the price
See Revision of the price
Commission contract V 629
- under Hungarian law II 123
Clause recette IV 7
Company
defective corporate status of a party VI 41
liability of an existing— which concludes a contract II 330
on behalf of a future company
powers of corporate officers and bodies are governed
by the Lex societatis I 322
VI 519
- State-owned III 600
- transfer of assets III 600
See also Arbitration Agreement
Bankruptcy
Group of Companies
Competence of arbitrator
- after court injunction restraining the parties from
pursuing the arbitration I 37
II 309, 512
after defendant revokes agreement to arbitrate II 33
after parties have agreed to withdraw from ICC
arbitration I 101
allocation of the costs of arbitration when the
arbitrator declared himself incompetent I 309
xlv
and bankruptcy of a party I 530
m 487, 622
IV 308
V 703
and compulsory enforcement of the awards I 290
and contract contrary to public policy I 494
IV 1
VI 831
and employment contract I 306
and European and Community law I 164, 342
V 719
VI 231
and law of the country of enforcement of the award I 290
V 363, 437
and related court proceedings I 37
V 363, 437
VI 135
based on non identical arbitration clauses in
connected contracts II 227
IV 461
claim arising out of a tort II 358
III 401
V 719, 777
— in multiparty arbitration
See Multiparty Arbitration
II 11
——
in the absence of an arbitration agreement I 473
legal sources to decide the issue of the — I
VI
466
973
need for the existence of a dispute I 499
over bank guarantee issued by third party I 162
over companies not signatory to the arbitration
agreement I 146, 154
IV* 308, 510
VI 973
over new claims II 43
—
party challenging the is not considered to have
accepted such competence by appearing before the
arbitrator II 330
V 141
RICO claim in 577
IV 474
to appoint expert II 134
to decide on the relationship between a bank and the
beneficiary of a bank guarantee I 482
to recommend parties to abstain from action likely to
aggravate the dispute I 164
xlvi
. llt'/ZAÍíJli ----------
to render partial award I 154

II 3
V 609, 689
VI 231, 843
verification of the — 111 447
IV 455
V 609, 689
VI 231
- when party dissolved 1 43
- where one of several contracts not signed I 138
Bankruptcy
Competence-competence
Lis pendens
Competence of a national court to appoint an expert
- in spite of the existence of an arbitration agreement I 515
Competence-competence I 37, 43, 51, 126,
149, 154, 216,
289, 308, 521,
525, 529
II 18, 154, 199, 257,
330
III 68, 567
IV 373, 510
V 229, 689
VI 231, 795
and public entity I 283
II 257
IV 341
and State immunity I 247
IV 455
V 167
- English law II 330
- existence and scope of the arbitration agreement n 330
IV 373
negative effect VI 795
rule of international arbitration law I 218, 249, 284
II 330
- Syrian law II 257
- the preliminary conciliation procedure has not been
followed by the claimant I 242
See also ICC Arbitration Rules:
Competence of the arbitrator
Xlvii
Competition
arbitrability III 561
IV 300, 543
V 561, 719
See Arbitrability VI 543
- competition unfair under license agreement/
distributorship agreement I 21, 54
IV 415
V 719, 783
VI 59, 905
- and European Law 1 166, 179, 546
See also Treaty of Rome III 561
IV 445, 543
V 561, 719
VI 231, 543
- scope of competition law VI 59
Concession Agreement
- purchase of mining products I 218
—unilateral termination by a government
See also Agency Contract
I 218
Conciliation
—optional or obligatory character of a preliminary
conciliation procedure
Concordat on Arbitration, Swiss
I 242
See Switzerland
Condition depending upon the will of a contractual party I 445
m 561
Confidentiality
after termination of a consortium agreement III 414
confidentiality clause IV 470
V 567
of arbitration proceedings III 561
VI 135
—of business and arbitration procedure
Conflict of law rules
I 330
—
- at domicile of both parties must coincide
- an arbitrator is not bound by any national system of
1 17
conflict of laws I 217

—application of the rules of conflict of laws chosen by
the parties I 312
- of France I 12
- of place of arbitration I 4, 16, 18
- of place of arbitration, where the parties have agreed
in the Terms of Reference that law of place of
arbitration shall apply to the arbitration 1 19
- of place of performance I 15
xlviii
.-TÏT . i'-í- 7!
:-i
•.*
- of Switzerland and reasonable interest to justify

choice of applicable law to substance I 19
- of Switzerland, in distribution contract I 18
- of Switzerland, in Sale of Goods Contracts I 18
- of Yugoslavia in sales/purchase contract II 249
See also Applicable law, to substance
Consequential damages
See Damages
Consolidation of related arbitrations
- article 13 of the Internal Rules (1975) of the ICC
International Court of Arbitration III 567
IV 94, 461
See also ICC Rules of Arbitration : V 545
- of 1975 : Internal Rules (Article 13)
- of 1998 : Article 4(6)
- division of costs in consolidated arbitrations III 209
V 545
See also Arbitration proceedings
Consortium Contract
- — for the exploration of oil field
See Oil
III 584
- exclusion of consortium parties due to default III 256
contract (no)
—
- law applicable to a identical to the law of the main
I 358
- mutual interest area clause III 584
- provisions denying indemnification of parties
excluded from consortium null and void III 256
- revocation of management authority by consortium
parties III 256
- valid reasons for dissolution of partnership III 256, 414
Construction Contract
- abandonment of site I 257, 304
II 302
- acceptance of works is forfeit of known defects IV 192
- and liquidated damages I 84
- applicability of main contract to subcontract in
construction agreement I 158
— bridge
- buildings in Egypt
IV
II
III
180
32, 69, 320, 495
414
- cattle abattoir in Egypt II 180
-tourist village in Egypt I 125
buildings in Saudi Arabia I 77
II 43, 465
- plant in Saudi Arabia II 165
completion of works by the employer himself II 180
xlix
concurrence of the contractual provisions of an
association agreement and of the employer’s
conditions of contract n 264
entitlement to suspend and terminate work contract in 152
expulsion of contractor’s staff II 450
factory for the manufacture of prefabricated elements II 450
gas pipeline I 41
highway in Middle Eastern country II 189
hotel in a Middle Eastern country II 454
in a Middle Eastern country II 352, 533
in Africa
- airport in African country II 101
- canal in African country n 112
- hotel and conference centre IV 192
- of a road in Africa I 512
- public utilities in African country I 542
II 460
in Iran I 162
in Libya I 304, 477, 515
II 298, 302
- civil engineering work in Libya II 519
- housing in Libya II 3, 445
- part of the port of Tripoli, Libya I 157
- in Pakistan IV 112
- in the Soviet Union I 106
- lump sum contract I 78
- of a factory I 312
- of a fishing harbor II 345
- of a glass factory I 486
- of a nuclear plant I 481
- of a vessel I 59, 355
of an ore terminal I 358
- of works in the Middle East II 352
- partial delivery IV 164
- “pay when payment” clause in subcontract is
not a due date rule but a condition precedent
under Swiss Law III 86
- presence of submerged explosives on site as
constituting force majeure I 158
- privileged fiduciary rights of principal regarding
duties and architect III 239
- public works in Spain I 257
- relationship between main contract and subcontract
in construction cases III 86
- reorganization of fuel distribution network II 227
- requirement of immediate notification of defects IV 192
1
- road in Yemen Arab Republic II 309,508
- turn-key project in Morocco II 217, 526
See also FIDIC
- validity of exoneration clause IV 164
Consultancy contract
- bribery (rejected) II 53
IV 232
claim for payment of fee II 53
IV 32
extortion (rejected) II 53
illicit object (rejected) II 53
IV 1
legality of—
qualification in Swiss law
m
ii
256
53
IV 232
VI 3
Contract
See individual entries for types of contract, e.g.,
Construction contract, Sales/purchase contract
- adaptation of contract by arbitral tribunal III 256
See Adaptation of Contracts
- administrative authorization II 263
m 420, 420
IV 455, 465
agreement to agree VI 859
—
amendment of where written form required
apparent contract
II
II
80
330
V 677
assignment of — III
V
555
567
breach of — I
III
430
100, 185, 282
IV 52, 66, 267
V 53
See Breach of contract VI 59, 79, 471
- characterization by the arbitrator 1 429
IV 516
V 589
VI 759, 781
—
choice of applicable law to in order to decide
- adaptation of — I 21
- execution of — I 21
- rescission of — I 21
- validity of —
conditional contract
I
III
21
414
IV 548
li
consideration foi Ill 560
contractual limitation of liability III 336
contractual provision of secrecy III 414
effects of nullity of contract I 120, 490
entry into force I 56
III 420, 414
IV 548
- effect of an arbitration agreement on the non-entiy
into force of the contract II 420
III 420
IV 465
exclusion of liability III 561
IV 164
See Liability
Exclusive rights clause VI 749
- exclusive rights to technical system III 108
- existence and validity IV 119
—
- expiration of by mutual consent
- formation of the contract
II
II
227
387
IV 522
V 115, 609
VI 329
framework contract II 358
IV 522, 548, 569
frustration of — after attack on contractor’s personnel II 101
and taking of hostages
fulfillment of contractual provision not a condition IV 66
for validity of —
group of contracts VI 729
illegal consideration of — III 560
IV 543
V 575
VI 831
equipment
—
implied obligations in involving installation of II 27
inalienability of human body III 537

indivisibility of group of contracts I 139
—
international
interpretation of— by determining intent of parties
III
III
600
100, 489
interpretation of contractual provisions 1 266
III 429, 584
IV 227, 455, 470,
516, 522
V 393, 437, 513,
463, 513, 769
VI 213, 329, 831
lii
I í.?. ....
Sí
sí
■-!
invalidity of the contract has no consequence on the

validity of the arbitration agreement I 290
II 199, 420
language of— V 515
legal effect of initials in the absence of a signature II 330
limitation of warranty in contract II 27
limitation of warranty, of remedy in contract II 27
modification of obligations arising under — I
IV
57
150
object of —
obligation for the client to inform itself
III
III
561
475
V 677 , 769
obligation of diligence III 420
obligation of information II 263
III 475
V 393, 677, 769
VI 59, 729
obligation of loyalty III 475
V 463
See also International Trade Usages
- obligation of the parties to perform the contract
pending the arbitrators’ decision I 538
- obligation to cooperate in good faith III 429
IV 455
V 659
VI 859
- obligation to respect the confidential nature of the
information disclosed dining negotiations of the
contract III 414
— plurality of contracts IV
V
461
39, 545, 677
VI 729
precontractual negotiations II 165
IV 516
V 463
VI 859
- rebus sic stantibus (changed circumstances) III 537
—
- rescission of when royalties not paid
- signature of a contract on behalf of a corporation not
I 27, 53
yet incorporated II 330

- signature of the contract by a branch without legal
personality II 400
- simulated contract III 220
IV 431
See Corruption V 727
- tacit ratification of contract III 220
liii
take or pay clause in 489
termination of — I 27, 30, 52, 53,
79, 80
II 85, 165, 180, 227
III 28, 100, 195, 282
IV 66, 150, 198, 415
V 15, 291, 413,
589,609
VI 79, 803, 931, 959
- distributorship contract I 30
V 297, 413
- employment contract II 85
- construction lump sum contract I 79, 80
- license contract I 52
time limit for filing action for redhibitory defect I 232
III 143
transfer of claims III 550
unjustified withdrawal from contract III 185
—
validity of arbitration clause when not signed
validity of contract
I
II
139
119
IV 119
- against bonos mores 1 120
II 53
See also Bonos mores IV 1
- effects of nullity of contract I 120, 190
- violation of mandatory law III 220
IV 7, 112
See also Public policy
Repudiation of contract
Contract of carriage I 274
III 382
Contract for co production of a film 11 339
Contract for Technical Assistance II 257
Contract for the transfer of Know-how III 561
- exclusivity provision I 179
- violation of the Treaty of Rome I 179, 181
See also License Contract
Contract for the transportation of natural gas III 489
Contract of financing III 489
Contract of Works I 399
II 274
Contractual guarantee
See Bank guarantee
Contractual penalty V 207, 479
VI 95, 543
liv
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- £•'= i.i J
----
. r"~J_
ÿ
- adjustment for taking into consideration the

devaluation of the contractual currency I 203
- corresponding to a minimum purchase obligation I 199
- for late delivery I 422
IV 500
See also Liquidated Damages
Cooperation
- consequences of the rescheduling of debts of the
international community II 428
- duty to cooperate I 276, 279, 373
II 302,371,428
III 420
See also Good faith
Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters of 27
September 1968 (Brussels Convention) 1 308, 328
□I 195
Copyright infringement IV 52
Costs of arbitration III 175,209
IV 7, 32, 52, 66, 75,
94, 119, 179, 214,
267, 321,402, 579
V 15, 341, 463, 503,
689, 751, 767,
777, 807
VI 3, 41, 59, 79, 95,
135, 179, 231,
311, 329, 345,
433, 461, 471,
519, 543, 749,
781, 811, 851,
885, 917, 945, 973
compensation for legal fees in related court
proceedings III 46
costs of related court proceedings III 46, 68
VI 543
costs influenced by behavior parties IV 321,402,527,579
V 463, 751
- to be paid by party whose claim/defense fails I 76
V 751
VI 135, 749
order to pay the advance on costs V 545, 727
VI 843
when arbitrator amiable compositeur II 43
V 553
when arbitrator declares himself incompetent I 305, 397
lv
See also Consolidation of related arbitrations
Fees of Arbitrators
ICC Arbitration Rules of 1975 :
- of 1975 : Article 20
- of 1998 : Articles 30 and 31
Credit Insurance III 550
Criminal action
not contrary to arbitration agreement II 361
V 553
VI 135
Culpa in contrahendo I 144, 296
II 370, 437
V 711
VI 135, 859
Currency, of payment
See Foreign Currency
Czechoslovakia
Code of International Trade
-article 343 I 280
- article 344 1 280
- article 345 I 280
Damages
— based on “reasonable adjustment” of contract
price IV 241
——
due to termination of exclusive sales agreement III 46
in place of specific performance IV 66
resulting from commencing court action III 134
attenuation of liability because of the other party’s
waiver of right to require performance I 278
—
calculation of when the arbitrator has no powers of
amiable compositeur 1 368, 374
contract
—
calculation of after breach of foreign investment
I 135
—
calculation of after nationalization of raw materials I 194, 237
delivery
—
calculation of after refusal of a party to take/make
I 281
- boots I 160
- goods I 174
-oil I 226, 234, 293
calculation of — after termination of a concession
lvi
I
;
agreement
—
calculation of after termination of a construction
1 255
II 302, 400
calculation of — after termination of agency/
distributorship contract I 32, 33, 124
II 123
III 199
V 609, 783
See also Distribution Agreement VI 851
V 609, 783
—
calculation of and gold clause I 278
—
calculation of for non payment I 74, 75, 76
—
calculation of including lost profit III
VI
100, 282
851
calculation of — to party’s reputation after breach of
contract I 161
calculation of — under English and Syrian law I 174
calculation of — when contract frustrated II 101, 112, 249
V 97
- calculation of — when party made replacement
purchase U 249
- calculation of — when the arbitrator has the powers of
amiable compositeur I 227, 436
—
- calculation of where employer himself terminates
the works that subcontractor failed to carry out II 180
- calculation of damage to party’s goodwill after
breach of contract I 161
- causal nexus for loss VI 59
- contractual penalty for termination of contract VI 95
- chain of causality III 459
V 751
— clause excluding consequential —
- compensation amount awarded must be paid in the
II 27
same currency in which the— have been suffered I 204, 326

II 371
compensation limited to the foreseeable damages I 281
compensation must be assessed according to the
circumstances and to the seriousness of the breach
committed by the debtor II 302
compensation for lost profits IV 66
VI 851
compensatory damages I 22, 24, 26, 27
II 302
V 291
- under Michigan State law IV 94
Contractual limitation VI 213
lvii
—
-
discretion of arbitrator in assessing
duty to limit
— □I
I
152, 175
22, 27, 161, 205,
224, 241, 296, 449
II 302, 371, 400
III 3,40
IV 493
V 783
- mitigation of— by arbitrator I 281
- —
mitigation of by party II 123
—
- mitigation of in distributorship contract
under laws of State of California
II
II
123
95
economic dislocation and inflation n 112
equitable quantification VI 135
evidence VI 433, 749
expectation damages IV 150
failure to mitigate III 40
for failure of an attempt to settle the dispute I 343
for wrongful termination of contract VI 95
incidental II 27
limitation of remedy clause in sales/ purchase
contract II 27
IV 150
liquidated— III 3, 152, 606
—
- liquidated in construction contract I 84
- —
liquidated under Belgian law
- real damages and liquidated damages
I
I
84
380
meaning of “lost profits” IV 150
V 599,659,719, 783
moral and material II 345
V 797
VI 135
—-—
negative interest of contract I 145
principles in Hungarian law n 123
punitive damages III 46, 475
- reputational damage VI 135
— through resale of goods
- treble— under the United States Racketeer Influenced
n 236
and Corrupt Organization (RICO) in 336, 577

See also Standard of Proof
Delay
— ofof payment
delivery and contractual penalty I 422
—
- debtor should not take advantage of any delay I 204
and suspension of performance n 165
consequences of delay in opening a documentary
credit I 374
Iviii
-;- ■_ = i -i; Ziv í-r-i-:;: ~
in delivery of plywood 1 168

in execution of works II 180
in loading of ship I 30
Demurrage
- calculated on Worldscale I 29
- and laws of Switzerland I 29
Depreciation of currency
See Devaluation
Devaluation
of dollar as basis for damages I 74, 75, 369
of the Spanish peseta I 199, 201
IV 135
of the Indian rupee I 312
Development contract III 475
Dispute
- continued performance of contract regardless of — II 24
- definition of — II 495
See also FIDIC
international character of the dispute III 435
must have developed beyond the stage of difference
of opinion II 497
Dissenting opinion
of both co arbitrators II 257
-
—
communication of a to the parties II
IV
257
66
See also ICC Arbitration Rules :
- of 1975 : Article 19 and Internal
Rules (Article 17)
- of 1998 : Article 25(1)
Distributorship contract V 767, 783
VI 79, 843, 851, 931
breach of —
- under French law III 199
VI 851
under English law VI 79
- under Spanish law IV 415
cannot be an adhesion contract II 89
cessation of distribution activities III 199
damages due to breach of — III 199
IV 150, 415
V 413, 609
VI 79, 851, 931
- effect of government order authorizing parallel
export II 123
- effect of merger and acquisition V 3
lix
—
for sale of automobiles in Lebanon I 31
——
for sale of isolation equipment in France
for sale of motor car accessories in the USA
I
I
147
23
—
implied warranty of merchantability
- joint and several liability of distributors
I
III
23
199
—
sales in excess of maximum trade price
- scope of the distributor’s obligations
VI
III
79
199
Documentary credit
—
- delay in opening does not give seller the right to
terminate the contract I 197
- delay in opening— extends the time for delivery of
the goods I 374
—
bank
—
delay in the confirmation of the by the originating
I 555
- sender’s request to originating bank not to pay on
letter of credit I 335
—
time for examination of the documents by the
originating bank I. 335
—
verification of documents by the banks
See also Uniform Customs and Practices for
Documentary Credits of the ICC
I 335
Egypt
Civil code
- article 19 II 395
- article 22 II 320
- article 28 n 320
- article 152 V 537
- article 221 I 135, 136
III 181
- article 226 in 84
- article 270 111 416
- article 279 II 69
- article 300 II 69
- article 302 II 69
- article 702 II 69
Civil and commercial procedure code II 32
lx
•
TT
-i TT'
III 75, 77
III 78
Commercial code
- article 59 II 69
- article 64 II 69
- domestic and international arbitration II 400
: - Law No. 43 of 1974 on Foreign Investments I 127, 129, 131
- Law of the Council of State No. 47 of 1972 III 78
- requirement that arbitrator must be named in the
agreement to arbitrate II 180, 400
- validity of arbitration clause II 32
- the validity of the arbitral procedure depends upon
the law of the country where the procedure will take
place II 400
Engineer
— —
powers and role of under FIDIC
- independent— replaced by owner’s own staff
II
II
3, 446, 456, 461
462
- as quasi arbitrator II 461
—
- does the cease to have functions after the contractor
has terminated the contract (no) II 454
See also FIDIC Conditions
Engineering services contract II 67
Equity II II
III 613
VI 811
- compared to amiable composition I 20, 74, 97
See also Amiable composition Ex aequo et bono
Estoppel II 21
III 86, 239, 336
VI 739,893,931,973
European Commission
- Transfer of case of the Commission 1 179
See also Treaty of Rome
European Economic Community (EEC)
See Treaty of Rome
European Convention on the Exchange of Therapeutical III 537
Substances of Human Origin of 15 December 1958
European Convention on International Commercial IV 333
Arbitration, 21 April 1961
- article I III 136
- article I(2)(a) III 143
- article 11(1) III 81
lxi
S
3
- article IV(l)(a) II 199
- article V(3) II 199
See also Interim Measures
— article VI
- article VI(2)
II
m
415
137
IV 189
article VI(2)(b) II 352
article VI(4) III 435
article VII(l) I 186
II 264
III 137
IV 32
- article IX(l)(a) II 352, 415
European Court of Justice (Court of Justice of the European
Union)
case 56 and 58/64 Consten and Grundig I 183
case 22/78 Hugin V 3
interpretative ruling I 342
European Law
Council Regulation n° 44/2001 VI 79
Council Regulation n° 1346/2000 Insolvency VI 79
Proceedings
Council Regulation n° 139/2004 (20 January 2004) VI 543
Directive n° 86/653/EEC of 18 December 1986 on V 743
the coordination of the laws of the Member States
relating to self employed commercial agents
Freedom to Provide Services in the E.U. VI 135
Evidence
actor incumbit probatio I 229, 295, 449
III 513
V 575, 677
admissibility of diaries as
burden of —
— IV
I
119
267, 295
III 513
V 575
VI 831
chain of causality III 459
cooperation of the parties in the giving of evidence III 513
VI 723
documentary evidence VI 723, 811
freedom of the arbitrator III 513
V 575
- of amicable settlement must be made in writing I 141
— oral evidence
- standard of proof to support lost profits for breach of
VI 811
distributorship contract II 123

See also Actori Incumbit Probatio Damages
lxii
«
Ex aequo et bono
—
- determination of the amount of damages by
arbitrators acting as amiables compositeurs I 227
IV 52
- definition I 98, 502
See also Amiable Composition Equity
Exceptio non adimpleti contractus I 106,111,305,402
III 152
V 797
— as compared to set off
Exchange losses
I 114
caused by main contractor’s late payment II 165

subcontractor’s claim for
Exclusive concession agreement
— II
I
165
204, 185, 341
See also Agency Contract
Exclusive sales contract
See Distributorship Contract
Expert, Expert Opinion
- competence of arbitrator and party to appoint— II 134
III 152, 513
IV 232
V 669
- concurrent jurisdiction between a national court and
an arbitral tribunal for the nomination of an expert I 515
- expert provided for in contract III 513
- expertise and arbitration IV 533
- independence of the expert I 286
- International Centre for Technical Expertise
of the ICC II 217, 526
- opinion of an expert as a condition for calling
a guarantee II 345
- probative value of an expert’s report I 286
II 345
V 669
payment under performance bond

—
quantification of damages by as condition for
II 217, 526
Expropriation,
See Nationalization
Factoring contract
transfer of outstanding debts in an international
factoring contract I 362
V 623
Fait du Prince
definition I 233
under French law I 71
kin
See also Force Majeure
Favor negotii
- law applicable to substance II 53
Federation of Civil Engineering Contractors (FC1E)
- subcontract form and arbitration clause II 495
Fédération Internationale des Ingénieurs Conseils
See FIDIC
Fees of Arbitrators
- VAT V 761
FIDIC Conditions I 157
- —2nd edition III 495
V 363
—
-
— 3rd edition
admissibility of claim for a higher amount in
III 530
arbitration than that submitted to the Engineer II 189

- and time bar to commence arbitration II 3, 69, 112, 189,
308, 477, 481,
497, 508
in 495
clause 1 (c) I 545
clause 2.1 I 480
clause 34 II 450
clause 44 (1) II 189
clause 52 (5) I 543
II 189, 462
clause 56 II 189
clause 60 (1) n 189
clause 65 II 450
IV 500
clause 67 I 9, 247, 477, 542
II 3, 113, 189, 308,
445,461,465, 479
in 86, 495
costs of main contractor pursuing claims against
owner III 86
definition of dispute or difference II 454
m 495
delay in the performance of the works III 530
direct submission to ICC arbitration without prior
submission to the Engineer in a FIDIC contract I 544
effect on subcontract of appointment of Engineer in
principal contract III 86
expulsion of contractor’s staff II 450
independence of the Engineer I 543
II 461
Ixiv
".GiïïrVry.-vÿvj:..:., •‘¿i*.
-----
• • -r
- ■
legal nature of the relation between the Engineer and

the employer I 477
mandatory nature of condition to submit dispute to
Engineer II 465
powers of Engineer under —
replacement of Engineer by owner’s own staff
II
I 542
3
II 460
requirement to submit to arbitration or express
dissatisfaction only, within 90 days II 477, 496, 519
role of the Engineer I 477, 544
II 445
III 495
- starting point for the 90 day period II 189
- unconditional performance guarantee III 530
See also Guarantee
- waiver of the conditions of art. 67 III 495
- what derogations can be made from formalities in
clause 67 to submit dispute to arbitration II 465
- where dispute not submitted to the Engineer
as a first step II 454
See also Construction Contract Engineer
Force Majeure
and calculation of damages I 7
and exchange control regulations IV 445
V 637
and hostilities in the country of performance I 6
II 101
IV 500
VI 803
and hostility between the governments of the two
parties I 195
and lex societatis I 366
armed conflict I 208
change of circumstances II 394
criteria foi=— I 194, 224, 237,
367, 420
III 3, 537
IV 485, 500
V 97, 637
VI 179, 803, 931
of goods
—
default of supplier does not constitute for seller
I 160
—
definition of in sales/purchases contract I 160
—
definition of under French Law I
VI
70
931
does threat to seize products following a
nationalization of the source of primary products
constitute force majeure? I 7,23, 194
lxv
1
due to cancellation of export license I 26, 233
V 529
due to government prohibition
- to provide foreign currency I 68, 70
- to publish periodicals I 28
interpretation of a force majeure clause I 366
IV 485
V 637
VI 931
— intervention of foreign exchange control authorities I 225, 366
- limitation in time of a force majeure event 1 196
- natural catastrophes V 155
— —
notice of presented too late
- refusal to deliver visas for racial considerations
- submerged explosives found on construction site
I
I
1
26, 172, 234
230
158
See also Frustration Fait du prince
Foreign Currency
and assessment of damages I 329
compensation must be paid in the currency in which
the damages are suffered I 204, 326
II 371
condemnation in a currency different from that of the
seat of arbitration I 206
conversion rate between two currencies I 259
currency of payment II 3
Foreign Exchange
- — loss III 86
gold standard clause I 193
promissory note I 312
validity of a clause of —
Foreign Exchange regulations
I
I
193
120,365
IV 445
Foreign Law
is a question of fact under English private
international law II 136
Foreign Trade Credit Insurance
- COFACE III 534
- locus standi of the insured party III 534
- subrogation III 534
Forum
See Place of arbitration
France
Civil Code
VI 831
lxvi
------
r.-'.rr.’T' "T TTT~zznrÿ2 i-i - •: - .• -.-r. .i . '.1:1 _ l

663, 807, 59, 759,
V
931, 959
VI 985
- article 1139 I 57
931
- article 1145 VI 851
- article 1147 V 637
181, 204
- article 1149 III
VI 851
- article 1150 III 181, 204
59
VI
- article 1153 I 73
m 146, 206, 207,
306, 518
VI 917
795
- article 1156 VI
- article 1157 VI 795, 851
- article 1 161 VI 831
795
- article 1 162 VI
- article 1275 III 303, 304
306
- article 1276 III
807
V
- article 1652 I 74
167
V
- article 1709 589
- article 1780 589
589
- article 1838
- article 2037 663
Code of Civil Procedure (Old)
- article 70 II 223
lxvii
Commercial Code
- article 1 09 III 303
- article L.134.1 VI 759
- article L.442.6.1 VI 985
- article L.442.6.1.5 VI 959, 985
- article L.442.6.5 VI 851, 931
Company law of 24 July 1 966
- article 126 I 322
- article 128 I 32J
Conflict of law rules I 12
decree of May 12, 1981 relating to international
arbitration I 153
definition of force majeure under French law I 69, 70
French law and evaluation of damages in case of
refusal to take delivery 1 281
French law and rebus sic stantibus principle I 297
French law and conservatory measures I 286
French law and nullity of the arbitration agreement in
an employment contract 1 306
French law and time period to claim for defective
quality I 232
Insurance Code
- article LI 11-1 III 534
- article LI 13-8 III 552
- article LI 13-9 m 552
- article L121-12 III 534
international public policy of— V
I 152
327
in shipbuilding contract I 61, 62
Labor code
-article L. 517-1 I 306
VI 781
—
law of applied to substance
law of — to define force majeure
I
I
11, 57
69, 70
New Code of Civil Procedure
- article 48 IV 308
- article 461 III 525, 527
Ixviii
■1
-----~- TT
--
- - -, _•
-•"ÿgga- .ïîÿ.riiizi-i.-' T:
Í; :_ESÍS??-5vf=™Sÿr

- article 696 III 307, 308
- article 1466 m 436
- article 1475 III 333, 525
V 413
IV 308
- article 1495 III 319, 525
- article 1496 I 170
III 467, 513, 622
V 383
- article 1502 V 327, 703
Ordinance of 30 June 1945 on the law of 25 January
1985 and Decree of 27 December 1985 III 623
Franchise contract U 136
Fraud II 380, 380
V 727
- forged document I 337
Fraus omnia corrumpit I 340
Frustration of contract
- and Force Majeure I 208, 299
- and price increase of steel II 249
- and Rebus sic stantibus principle I 3, 208, 212, 299
II 394
attack on contractor’s personnel and taking of
hostages II 101, 113
calculation of damages in English law II 101, 113
definition I 208, 212
lxix
- English doctrine of— 1 3
- in Yugoslav law II 249
See also Force Majeure
General Conditions
- acceptance of general conditions of purchase by the
seller subject to modification II 387
—
- admissibility of in sales/purchase contract
- general conditions of sale containing the arbitration
I 171
agreement II 274
— General Conditions of Contract (GENCOCO)
- German Association of Mechanical Construction
V 437
Companies III 401

- No. 188 of the UNECE III 401
IV 308, 321
V 127, 647
- ORGALIME Conditions V 341, 669
General principles of law III 592
- —applicable in Western Europe III 489
—
- guiding arbitrors
- and international trade usages
IV
II
1
437
- and lack of consent I 435
- and Lex Mercatoria I 435
IV 489
VI 811
— common sense rules applicable in the main legal
systems I 208, 212
—
-
law common to all nations
presumption of equality of the contractual parties
I
III
190, 191
475
IV 80
Lex Mercatoria
UNIDROIT Principles
Geneva Convention of 19 May 1956 on the Contract for the V 737
International Carriage of Goods by Road
Geneva Convention of April 21, 1961
See European Convention on International
Commercial Arbitration
Geneva Protocol of 1923 (Geneva Protocol on Arbitration
Clauses of 24 September 1923)
- and applicability to Brazil II 33
Germany (Federal Republic of)
lxx
■ V./-- ■ ■-.-■■ ■ \V~ ; - i“I Z1 TÿZ
---
■: 'i-:-:--
— --.- -ÿ.-'"s-iíz'-zrzi. _. . . A-i :.r. f. v
•ÜL-ZÏ.Hr.v-.' *l_
Code of Civil Procedure

IV 187
German competition law 1 346
—
Law of applicable to substance I 19
V 393
Ghana
Good faith
—
- Law of is not different from English Law I 171
VI 519, 811, 945
—
and renegotiation of contract I 296
}'•
II 428
and venire contra factum proprium II 539, 540
! V 647, 727
as a principle of Lex Mercatoria II 400, 437
ï.
VI 945
- in the Laws of New Hampshire II 358
- in the Laws of the State of California II 85
- obligation of the parties to negotiate in
— I
II
296
428
V 463
VI 859
performance of the contract

—
obligation to cooperate in during the I
II
10, 124, 279
302, 330, 352,
387, 400, 437, 523
III 420, 429
IV 455
V 609, 623
See Cooperation VI 59
- presumption of — and negotiation, interpretation and II 437
performance of contract
— violation of
-
—
by deduction of payment in construction contract I 81
- by exploitation of know-how I 53, 55
- by undertaking payment obligation in foreign I 72
currency without having obtained Central Bank
authorization
See also Lex Mercatoria
Governing law,
Greece
Civil Code
- Article 26 I 17
-
Article 150 IV 198
- Article 178 IV 198
-Article 179 IV 198
lxxi
-
Article 288 IV 241
-
Article 388 IV 241
- Code of Civil Procedure
-
Article 224 IV 241
—arbitrate
—
law of governing the validity of agreement to
I 17
—
- law of applicable to substance
Group of Companies
I 17
- and binding effect of arbitration clause signed by

some but not all of the companies party to the
arbitration I 146, 151
- and binding effect on parent company of arbitration
agreement signed by subsidiaiy I 154
IV 510
and choice of applicable law I 257
II 279
IV 474
IV 569
V 537
VI 729
enforceability of the arbitration agreement against
member companies of group which have not signed 146, 151, 261,
the contract containing the arbitration clause I 263, 465
II 279
IV 119, 451, 474,
510, 569
V 537
—
joint and several liability of for the debts which
benefited directly or indirectly the member
companies of the group II 361
VI 905
lifting the corporate veil III 277, 420, 429
IV 119, 474, 510
V 537, 719
multinational group of companies I 258, 263
non-enforceability of the arbitration agreement
against a corporate officer (absent fraud) II 380
IV 569
See also Arbitration agreement
Guarantee
See Bank Guarantee, Performance Bond
lxxii
T-:----.?..- -T---
Hague Convention of June 15, 1955 on the law applicable

to international sales of goods
- in general I 192, 254
II 151
III 409, 606
IV 499
V 229
not applicable to shipbuilding contracts I 62
article 1(3) 1 357
article 2 I 327
article 3 I 119
II 223, 295
III 186, 607
article 3(1) II 394
III 315, 467
— article 3(2) III 409, 467
Convention of July 1, 1964 Relating to a Uniform Law I 348
on the International Sale of Goods (the Hague Sales
Convention)
III 401, 409
See “ULIS” V 115
Hague Convention of October 30, 1985 on the Law
Applicable to Contracts for the International Sale of Goods III 187
Hague Convention of March 14, 1978 on the Law Applicable
to Agency II 293
IV 402
Hague-Visby Rules (International Convention for the III 382
Unification of Certain Rules of Law relating to Bills of
Lading)
Hardship I 235, 275
II 437
IV 321, 465, 527
- and UNIDROIT principles IV 500
Hostilities
and force majeure I 6, 208
in the country of performance I 6
II 101
and changes in immigration rules II 454
and security of personnel I 6
II 101
amounting to state of war 1 35
between the parties’ governments constituting force
majeure event I 195
lxxiii
- —
cancellation of credit following I 6
——
kidnapping of personnel to stop construction work II 101, 112
personnel required to leave country after outbreak of
hostilities I 6, 195
Hungary
Civil Code
- article 246 n 123
- article318 n 123
- article339 II 123
- article
- article
355
507
II
II
123
123
-article 509 II 123
commission contract under the law of — II 123
ICC Conciliation Rules

- article 11 m 515
ICC Rules of Arbitration of 1955
- article 7 I 247
- article 13(3) I 216
- article 16 I 207
- compatibility of fast track procedure with
See Arbitral Proceedings
— III 209
—
consequences of the administrative nature of the
decision of the ICC Court to accept or refuse to
constitute an arbitral tribunal II 330
- termination of action through default of one of the
parties I 492
- Res judicata I 331, 350
—
article 1(1) I
II
421
339
article 2(4) II 321
III 322
article 2(8) III 216
article 3 II 481, 491
IV 389
article 4 II 491
in 216
article 4(1) II 279, 321, 410
lxxiv
-------- -:
■J
i
IV 389
V 141
article 5 II 491
IV 389
article 5(2) II 279
article 7 1 102, 480
II 448
III 420, 435
V 141
- article 8 (2) III 315
- article 8 (3) I 101, 151, 306,
394, 466, 480,
521, 525, 533
II 18, 154,202, 279,
321, 330, 339,
410, 449
III 68, 240, 420, 467
IV 94, 241, 333, 373
V 141
- article 8(4) I 290
II 18, 53, 154, 203,
265, 330
III 467
IV 333, 431
V 141
article 8(5) I 110, 286, 402,
485, 513, 534
II 300, 481
III 34, 435
article 9(2) II 321
III 154
article 9(4) II 321
III 154
IV 555
article II I 348, 399
II 69, 165, 298, 362
III 513
IV 32
article 12 II 32
article 13(1) I 317, 323, 454,
489, 514
IV 389
article 13(2) I 103, 395
II 47, 279
lxxv
III 322
article 13(3) I 107, 118, 149,
170, 283, 302,
327, 356, 359,
365, 400, 428,
459, 463, 489
II 143, 154, 223,
265, 293, 319,
362, 470
III 112, 186, 310,
318, 409, 442,
467, 489, 500,
573, 592, 622
IV 300, 308, 386, 536
V 513, 529
article 13(4) I 98, 315, 399, 502
article 13(5) I 85, 100, 109, 118,
131, 171, 301,
356, 359, 381,
415, 422, 491,
505, 556
II 53, 204, 223, 263,
265, 380, 392
III 187, 310, 452,
414, 453, 475,
489, 512, 567,
592, 622
See International Trade Usages IV 300, 308, 485
V 273, 529
article 14 II 165
III 447, 513
article 14(1) I 273
III 217
article 14(2) I 287
II 134
III 429
article 14(3) II 320
article 15 III 447
article 15(4) I 273
article 16 I 262, 317, 330,
454, 514, 523
II 18, 47, 279
III 273, 401, 429
IV 32, 138, 164, 389,
lxxvi
:
- -ÿ .- _“_-
_ _-V r .-/ÿÿ r' V
See Arbitral Proceedings 555

V 703
article 17 II 298
article 18 I 492
article 19 II 257
article 20 II 154
III 74, 298, 381
V 15
article 20(1) III 208, 308
IV 321, 527
III 308
article 21 I 65, 66, 78, 485
II 88, 298
See Award III 525
— article 26 I 292, 467, 548
II 33, 144, 205, 324
III 144, 409, 525
IV 341, 543
- is not relevant to the question of arbitrator’s
jurisdiction II 33
Internal Rules II 343
- article 1 II 343
IV 461
See Consolidation of related arbitrations
- article 15 IV 555
- article 1 6 IV 555
- article 17 II 257
- article 18 II 309
- article 6 V 107
- article 6(2) V 677
VI 729,795,831,945
article 6 (4) V 115
article 14(1) VI 945
article 15 V 327
VI 723, 789, 893
article 17 (1) V 81, 115, 229
VI 893
article 17 (2) V 81
VI 723, 945
article 18 VI 893, 917
article 19 V 341
lxxvii
n
r
article 22 VI 789
article 23 (1) V 315, 327, 599
article 23 (2) V 107
VI 871, 959
- article 25 (2) V 637
- article 28(6) VI 789
- article 30 V 545
— article 31 (3)
See Costs of Arbitration
- article 33 VI 917
- article 35 V 107, 315
VI 945
Appendix I
- article 6 VI 135
Appendix III
- article 2 (9) V 761
ICC Rules for a Pre-Arbitral Referee Procedure V 767
ICC Uniform Customs and Practice for Documentary V 529, 647
Credits
article 3 I 116, 338
article 7 I 339
article 8 I 337
article 9 I 337
article 17 V 529
ICSID Convention
See Washington Convention of 1965
Immunity
See Sovereign Immunity
Incompetence of the arbitrator
—
-
after novation of the arbitration agreement
and allocation of arbitration costs
I
I
394
309, 397
and nullity of the main contract I 320
employment contract I 308
procedural plea or substantive defense I 320
Incoterms III 512
V 529
CIF I 138
II 371
III 600
C&F I 56, 115,417,451
II 370
V 15
CFR V 15
CPT V 669
lxxviii
:Jz "I-.'J
— .I.- ¿V ¿It.fJi. -f V rC- ~r 1 l.“- - ~
‘•.-•ÿrjr.
- --vr XT: iZHirn : V,
ii
FCA V 155
FOB II 394
IV 522
VI 471
Indemnification
See Damages
India
Indian Contract Act (1872) V 53
Indian law applicable to a bank guarantee I 210
law of — applied to substance I 5
Injunction
authority of arbitrator III 431
by national court preventing the calling of a bank
guarantee I 169
by national court restraining parties from pursuing
arbitration I 37
II 309, 508
Insurance
—
effect of on arbitrators sitting in another jurisdiction II 508
- admissibility of the claim of the assignor (no) III 550

- aleatory contract III 550
- damage III 550
nature of the policy
-
- payment of the price after premium

— III
III
550
550
- provision in favor of a third party III 550
- subrogation I 312
Interest
—
transfer of right to indemnity III 550
and Lex Mercatoria II 387

and powers of amiable compositeur I 355
II 43, 227
V 553
admissibility V 575
appropriate rate of — I 20
II 249
III 86, 100, 108, 143,
152, 185, 382,
443,468, 513,
592, 600
IV 415
V 97, 229, 575
VI 179
compound interest I 348
II 154
III 459
VI 179
date of tolling I 330
lxxix
II 227, 350
III 143, 467, 475,
592, 600
V 553
VI 803
formal notice III 603
freedom of the arbitrator to determine rate of — II
III
428
475, 513, 600
IV 440
V 97, 553
VI 803
indemnity nature of — II
III
371
475, 600
—
legal rate of on commercial administrative contract
legal rate of the law applicable to the merits of the
III
II
75
428
dispute
III 600
legal rate of the law of the contractual currency I 199
II 387
IV 32,415
legal rate of the law of the creditor I 257
legal rate of the law of the seat of arbitration n 428
moratory I 16, 21, 117
- according to French law I 16, 73, 259
III 199
- according to Swiss law I 121
II 180
V 575
—
prohibition of under the law of the place
of performance of a construction contract II 112
IV 75
See also International Trade Usages
Interim and conservatory measures
- — ordered by a national court and absence of waiver
of arbitration agreement I 515
II 300, 361
See Agreement to arbitrate V 107
VI 871
absence of authority of the arbitrator to enforce or
modify a decision from a national court II 300
III 513
admissibility V 599
and arbitration I 285, 402
V 107,315, 327, 659
VI 871, 959
lxxx
-
—
and bank guarantee I 161, 484

II 300
authority of the arbitral tribunal to order — I
II
110
300, 361
III 34, 513, 613
V 315, 327, 599
- Geneva Convention of 1961 III 435
See European Convention on International
Commercial Arbitration
- interim relief
- recommendation by arbitrators to the parties to
refrain from action likely to aggravate the dispute I 164, 484
V 315
t - juge des référés III 435
- order of receivership I 553
- requirements to order
Intellectual Property
— V
m
315, 327
435
See also Arbitrability IV 470
International Arbitration III 447, 459, 525
V 629
arbitration
—
autonomy of from national law provisions on
II 263
Belgian law II 370
definition I 417
French law II 370
V 629
- Swiss Federal Law on private international law (18
December 1987) II 370
International Centre for Expertise of the ICC I 288
II 217, 345, 526
See also Expert, Expert Opinion
French parties —
International Chamber of Commerce
- competence of the over a dispute between two
- there is only one in the world

II
II
339
69
— in Geneva II 69
IV 227
- in Zurich II 180
See also Arbitration agreement/pathological
ICC Arbitration Rules
- of 1975 : Internal Rules (Article I)
- of 1998: Article 1
International commerce
— autonomy of the arbitration agreement is a
substantive rule of— I 320
- obligation to inspect the goods upon delivery is a
substantive rule of— I 232
lxxxi
-the rules of international arbitration shall be
International Convention (in general)

—
responsive to the needs of as a general principle I 152
-anticipated application of— III 409

-application of— by the arbitrator III 409
-International Conventions on Uniform Law III 409
-International Conventions on the Unification of III 409
Private International Law Rules
- taking into account of— by the arbitrator III 409
-universal value of—
m 409
International Court of Justice

estoppel VI 893
International custom II 319
International Organization
- and arbitration V . 599
- and choice of applicable law I 190
Internationa] Principles
- “useful effect” principle of interpretation of
contractual provisions I 425
II 371
IV 227
amount of compensation is limited to foreseeable
damages I 281
an arbitrator has competence to decide his own
competence I 291
an arbitrator is not bound by the conclusions of an
expert’s report I 286
autonomy of the arbitration clause is an international
principle I 290
II 199
general principles of international law applicable to
investment project I 129, 130
members of the international trade community are
presumed to enter into transaction knowingly I 256, 281, 299 416
parties must negotiate a settlement agreement in good
faith I 296
parties must renegotiate the contract in good faith I 296
II 428
International Tender III 584
- — in the oil industry III 584
IV 500
See Consortium
- regarding conformity of goods to standard
specifications IV 267
lxxxii
,
■■ .
R
ks
V 647
application of — to fill contractual gap II 199
V 529
authority of the arbitrator to take account of — III
IV
512
516
V 647
- binding effect of
-
—
compliance with legal principles common to all
IV 415
nations forms part of

- conditional contracts
— I
III
191
414
I - construction contracts II 67
See Construction Contracts III 414
- debt rescheduling of a developing country (no) II 428
- formal notice
—
- existence of dispenses the arbitrator from
determining the law applicable to substance I
III
304
600
- general principles of law and— III 512, 592
IV 500
V 529
See International Principles VI 519
- interest III 459, 475
See Interest
- Lex Mercatoria II 437
IV 489
V 575
- obligation of loyalty III 475
- presumption of professional competence of
international traders III 414
- satisfaction of suspensive conditions for the entry into
force of the contract III 414
See Contract
- those prevailing are reflected in the Vienna Sales
Convention II 223
IV 431
- validity of arbitration clause II 199
See Arbitration Agreement 111 567
Interpretation of an arbitration agreement
- and State immunity I 251
- choice of law provision in arbitration clause I 97
- common intent of the parties I 529
II 361
grammatical — I 526
—
restrictive I
II
525
339
lxxxiii
Applicable Law, to arbitration
agreement
Ut res magis valeat quant pereat
Iran
Constitution of the Islamic Republic of
- article 139
— II 267
contract of sale concluded in- I 191
Iranian law applicable to the merits of the dispute I 191
Iranian law and corruption I 509
Iraq
Civil Code
- article 25 in 328
Italy
- Civil Code
- article 25 I 186
- article 1223 I 12
- article 1 362 V 273
- article 1419 1 343
- article 1453 I 12
III 29, 32
- article 1454 III 29, 33
V 413
- article 1456 in 29, 33
- article 1458 in 30
■■
article 1470 V 187
- article 1 564 V 413
- article 1662 m 30
V 719
lxxxiv
TT- "'.T"7v-T.V. -----U -
!
- article 806 I 547

III 571
IV 389
- article 808 V 273
VI 803
Italian Antitrust Law VI 543
Italian law and rebus sic stantibus principle I 202
Italian law and amiable composition I 502
Italian law applicable to an exclusive concession
contract I 185
Italian law and bankruptcy I 531
Italian law and renvoi I 189
Italian law and unilateral termination of contract I 199
Italian Private International Law (article 1) V 273
Joint venture
- and determination of distributable profit II 199
- capacity of joint venture partners to commence
arbitration II 69
- for cultivation
- for building and leasing of a hotel IV 7
- for development, marketing and support of software
packages IV 52
—for manufacture and sale of petrochemical products
- in Egyptian law
II
II
199
69
- joint venture between sovereign States for the
development of arms industry II 11
- legal nature of — II 69
- voting agreement between shareholders II 199
Jordan
Arbitration Act (2001), articles 6 and 11 V 363
Civil Code
-article 20(1) III 328
Code of Civil Procedure V 363
Law No. 35 of 1983 on the Maritime Trade III 317
Korea (South)
Anti-Monopoly and Fair Trade Act (1980) I 164, 165
Civil Code
lxxxv
Federal law on private international law 15 January
1962 111 327
Kuwait
—
Law of applicable to substance in sales agreement I 165
Civil Code
Lack of Consent I 199, 435

n 339
HI 401
burden of proof with regard to dolo III 336
definition of dolo III 336
dolo in the inducement of the contract in 336, 401
VI 135, 231
misrepresentation II 154
weaker party in contract negotiation m 336
Lease agreement VI 95
Lebanon
- Code of obligations
- article 124 I 32
- article 248 I 32
—
- law of applied to substance in automobile
distributorship contract I 32
—
- law of applicable to an agency contract
Legal representative of company
III 452
- and choice of law to decide validity hereof n 534

- under Swiss law II 534
Letter of Credit I 116
III 40, 185
V 15, 413
VI 329, 471
Lex fori of an international arbitrator I 187, 209, 212,
303,
governs question of limitation under English law II 136
no lex fori for international arbitrator I 4
Lex loci contractus
Proper law of the contract
Lex loci solutionis
- and conflict with the law applicable to the contract I 211
lxxxvi
: 1; " ‘1 -”-L-
Lex Mercatoria I 191, 268, 272,

291, 303, 371
III 309, 315
IV 445, 474, 489
V 727, 751
VI 329, 811, 945
- and application of international trade usages I 228
II 298, 387, 437
and construction contract II 465
and general principles of law I 435
II 302
IV 489
VI 329, 811
- and international public policy II 298, 302
VI 945
and Libyan law II 521
and mandatory rules II 437
and set-off I 113
and Swiss Concordat I 110
and unforseeability II 302
applicable to agency contract I 124
applicable to sales contract (rejected) I 170
compositeur
—
application of in addition to powers of amiable
II 43
arbitrators can apply Lex Mercatoria without being
invested with the powers of amiable compositeur I 382
II 330
cannot be presumed in absence of agreement between
the parties II 67
confidentiality of settlement proposals III 512
contents of — II 437
IV 489
VI 945
definition 1 255, 260, 274
II 437
IV 489
definition of the public policy principles of
definition of the substantive rules of —
— I
I
385
384
definition of truly international contract III 452
does not include such detailed rules as those
regarding the rate of interest II 387
equivalent to general and common principles of law I 401
II 298
- exclusion of — by conflict of law rule III 452
—
- exclusion of if the parties have not clearly
manifested their intention to exclude national law II 318
lxxxvii
exclusion of national law I 381
exclusion of rebus sic stantibus principle I 297
filling the gaps in national law II 298, 302
general principle of good faith III 512
IV 489
VI 811
imperative norms of — I 354
imposed upon contracts concluded by multinational
group of companies I 260
insufficient indication of choice of
obligation to mitigate damages
— IV
III
300
459
principles and basic elements of — I 256, 275, 279,
281, 296, 297,
416, 449
IV 489
VI 811
- relation between— , amiable composition and
national laws I 382, 407
— subsidiary role of—
See also Amiable composition
III 452, 606
Applicable Law, to substance

Contract
General Principles of Law
Good faith
International Principles
Pacta sunt servanda
Lex rei sitae I 400
Lex societatis
and authority of corporate officers and bodies I 322
consortium I 361
and State company I 371
Libya
boycott law of
Civil Code
— I 62
- article 5 II 306
- article 147 III 6
- article 173 HI 180
- article 217 in 181
- article 224 II 307, 523
m 181
- article 227 III 26, 27, 181
- article 360 III 6
IV 485
lxxxviii
sir. ; ,,¿\-\\r¿ ~±-
■
- article 657 II 306, 523

- article 699 II 3
— Code of civil and commercial procedure
- law of — applicable to substance in construction
II 3
contract I 157
II 3, 298, 302, 521
-
-
—
law of and Lex Mercatoria
Oil Law of 1955
II 298, 302, 521
III 14
License and Supply Contract
- breach of —
- non payment of royalties
VI
I
59
22, 50, 53
- sale of similar products i 50
-violation of secrecy obligation I 54
- cancellation of — I
IV
22
198
- collection, export and supply of frozen human
S"
pituitary glands III 537
- entry into force III 537
- legality of —
- liability under French law of licensor for value of
III 537
license I 11
- manufacture of plastics machines I 49
- registration with public authorities III 537
- territorial limitation of an exclusivt VI 59
unfair competition under
Licensing contract
— I 21, 52
and applicable law I 52

for construction and purchase of minimum quantities I 278
exclusive agreement for the licensing of know-how I 179
III 429
- for know-how regarding pharmaceutical products I 456
- for manufacture and sale of machines I 278
- other types I 289, 453, 539
V 67
VI 767, 959
for patent III 561
IV 445
for trademark I 546
II 257, 420
royalties not paid I 28, 29
IV 445
violation of the Treaty of Rome I 179, 181
Limitation
See Statute of limitations
Liquidated damages I 380
See Contractual penalty
Damages
lxxxix
Lis pendens
applicable law III 435, 468
arbitration and court proceedings I 12, 37
Il 154,361,420,508
III 435, 468
VI 905
concurrent court proceedings in Egypt and
arbitrator’s jurisdiction II 54, 180
effect of court injunction on arbitrators sitting in
another jurisdiction n 508
injunction by a national court to stop the arbitration
proceedings II 508
law suits before criminal courts and requests for
provisional or conservatory measures before national
courts not contrary to arbitration clause II 361
VI 871
no lis pendens where parties are not identical I 13
—
no where the subject matter of dispute is not
identical I 38
related court proceedings II 420
III 468
stay of the arbitral proceedings II 361
III 435
Locus régit actum
— and form of arbitration agreement under Swiss law
Locus standi of claimant
II 535
- in joint venture n 69
Lome Convention V 599
Long term supply contract I 503
n 410, 437
Lost profits
See Damages
Luxembourg
Civil Code
xc
-- -• L-:A.-ï-7- zry. i: _ . i.;:. :
Maintenance contract
- trucks I 230
- aircraft VI 3
Mandatory Rules
and contractual interest rate II 428
and contradiction with the substantive law chosen by I 215
the parties
application by an arbitrator sitting in a third country I 45
—
application of different from the lex contractas m
VI
405
959
(ex officio) application of — and lex contractus II 420
IV 7, 112
V 703, 783
extraterritorial effect of national law to an arbitration I 45
in a foreign country
monetary I 314
RICO legislation III 577
IV 474
Maritime trade usages I 331
Misrepresentation II 154
Mitigation of damages
See Damages
Monaco
-Law n° 490 on commercial lease IV 7
Multiparty arbitration I 326, 355
- and equal rights for all parties involved II 11, 495
- and right for each party to appoint arbitrator 11 495
- appointment of arbitrator II 11
- conditions under which a third party can be enjoined II 497
in arbitration
VI 973
consorité of respondents in —
interpretation of multiparty arbitration clause
II
II
11
497
not possible to introduce further parties to ongoing- II 484
VI 973
rejected by arbitrator I 159
Nationalization
of sources of raw material I 194, 237
threat to seize products from nationalized sources of
production does not constitute force majeure I 7, 24
xci
Ne bis in idem I 513
Nemo auditur turpitudinem suam allegans I 510
V 727
See also Estoppel VI 811, 973
Non adimpleti contractus I 106, 111,305,402
Netherlands
- Civil Code
-
article 6 : 258 IV 321, 527
- and time period for claiming against defective goods I 232
—
- evidence required under law of to prove amicable
settlement
I 141
Netherlands Antilles
— Civil Code
New claim
I 262, 454, 523
II 279
IV 32, 164
V 703, 807
VI 879, 905
See also ICC Arbitration Rules : of 1975:
-of 1975: Articles 5 and 16
New York, State of
—— —
law of applicable to substance II 18
Judiciary Law (Sect 27) III 65
- New York Civil Practice Law and Regulations
- section 5004 III 67
-
section 7503 (c) III 71
— —Uniform Commercial Code
- section 1-203 III 50
- section 2-306 (2) m 54
-
section 2-717 III 54
New York Convention of 1958 (Convention on the III 409
Recognition and Enforcement of Foreign Arbitral Awards,
June 10, 1958)
- article I III 136
- article II II 32, 410
III 138, 145
IV 373
article 11(2) V 249
article 11(3) II 309, 361, 420
V 363
article III II 32
III 447
xcii
rs
H
article V II 410
IV 373
article V(l)(a) I 396, 472, 475
II 264,330,352,410
III 136, 567
VI 41, 543
article V(l)(d) I 39
II 361
article V(2) I 498
article V(2)(b) II 199, 257
article VI II 300
article VII II 410
and contrary provisions of national laws II 320
Notice
of lack of conformity of goods
- under the 1964 Hague Sales Convention II 236
for non performance under French law I 57, 58
of termination of contract I 54
V
Novation
—
telegram considered sufficient of termination of
licensing contract I
I
609, 629
54
394
III 299, 592
Nullity of contract
- corruption I 507
- lack of consent I 198
- plea of procedural nature or defense argument
on the substance I 321
- raised ex officio by the arbitrator I 345
- violation of bonos mores I 490, 507
- violation of Syrian laws of boycott against Israel II 257
- violation of the EEC Treaty I 341
See also Contract
Obligations in contract
See Contract
OECD Convention of 17 December 1997 on Combating V 575
Bribery of Foreign Public Officials in International Business
Transactions
Offer and acceptance III 401
Ohio,
State
of
xciii
Ohio U.C.C. s. 1302.27 I 23
1302.28 I 23
Oil
application of general principles of law to an oil
concession contract II 154
area of mutual interest clause III 58’
consortium for the exploration and exploitation of an
oil field III 58’
—
contract for the delivery of I
n
224
279
IV 500
——
exploration of oil fields in Central America
evidence of commercial quantities
I
II
154
154
- oil exploration contract
- and choice of applicable law II 154
See also Consortium
Oman
law on commercial agency VI 843
II 154
Pacta sunt servanda I 135, 212, 249,

276, 298, 402
II 380, 387
V 797
VI 811, 945
— rule remains within the bounds of the superior
principle of good faith II 302
and abuse of right n 380, 387
and amiable composition II 380
and good faith II* 519
VI 945
definition I 135
II 199
- pacta sunt servanda bona fide II 437
- is a principle of Lex Mercatoria I 400
II 437
Pakistan
Partnership
—
- law of applied to substance I 41
See Consortium
Part)' (to arbitration)
- capacity of a— VI 41, 519
- capacity of State to enter into arbitral clause I 127
xciv
defective corporate status VI 41
dissolution of — during arbitration I 24, 41, 42, 237,
530
V 703
further parties and ongoing arbitration II 484
V 797
only those who were designated in the request are
parties to an ICC arbitration II 484
IV 390
where party has not signed the arbitration agreement II 11
IV 180, 451, 510
V 797
lifting the corporate veil IV 119, 474, 510
merger of a company during the arbitration
proceedings I 453
Sovereign State / Public entity V 167
- immunity of jurisdiction and arbitration I 248
- incapacity of the State to submit to arbitration is
inoperative in international relations I 222, 282
- government, where contract signed by a public
agency II 154
party acting on behalf of a future company is
personally liable II 330
party challenging the jurisdiction of the arbitrator is
not considered as having submitted to arbitration by
appearing before the arbitrator II 330
V 141
passive attitude of —
- silence of a party is tantamount to tacit acceptance I 443
II 387
- removal of a corporation from the Trade Register I 237
See also Multi-party Arbitration
Party (geographical origin / nationality of)
- African State I 218,246,282,
365,433,511,542
II 27,101,112,345,
428, 450, 460
111 34, 332, 456, 475
IV 548
V 545, 567, 677
VI 729,831,945,973
Algerian I 67
III 555, 600
V 637, 703
vr 871
xcv
Argentinean II 85
IV 1
Australian I 539
Austrian I 422, 521
II 136, 352, 535
III 86, 185, 442, 500,
560
IV 1 19, 440
Bahamian I 153, 257
VI 471
Bahraini II 427
Baltic country V 81
Barbadian VI 79
Belgian I 10, 11, 76, 87,
100, 157, 159,
218, 280, 297,
326, 385, 394,
458, 462
II 43, 371
III 100, 134, 195,550
IV 333, 470
V 3,. 39, 127, 335,
553,711,743,749
Bermudan II 199
Brazilian I 197
II 33
VI 959
British 1 274, 355, 497
II 11, 123, 165, 497
III 40, 86, 420
IV 1, 150
V 327, 503, 513
VI 749, 789, 795
Bulgarian I 19, 326, 422
in 143, 500
V 115
Canadian in 256
Central Europe III 456
V 155
VI 879
Chinese V 107, 677
Colombian V 141
Cuban I 410
Cyprian V 187
VI 851
Czechoslovakian I 278
xcvi
ÿÿV/ÿV/A'-V,■-:- V .. ?7™-:w--v
Danish I 19
II 180
IV 135, 415
V 127, 229
VI 231
Dutch I 138, 355, 374,
490, 499, 503
II 142, 236
III 108, 148, 401
IV 198, 321, 527
VI 95, 519
Developing Country I 194, 237, 263
Egyptian I 125, 499
II 11, 32,69, 180,
249, 320, 394,
400, 496
III 75, 409,414, 467
V 229, 537
Ethiopian I 19
European I 481,486,511,542
II 189, 309, 345,
361,400, 450,
454, 460
III 152
V 81, 155, 529
VI 749
Far-East V 529
Finnish 1 539
III 606
IV 373, 493
V 341
French 1 10, 13,21,25, 27,
40, 56, 105, 122,
146, 153, 161,
179, 189, 197,
204, 233, 253,
257, 274, 282,
306, 312, 320,
325, 341, 347,
355, 362, 374,399,
425, 433, 453,
458, 465, 476,
497, 503, 515,
528, 530
II 3, 32, 69, 101,
112, 217, 264,
xcvii
274, 293, 300,
320, 339, 420
III 46, 75, 148, 277,
414, 420, 435,
447, 459, 487,
550, 555, 560,
613, 622
IV 112, 187, 192,
300, 333, 445,
500, 569, 579
V 3, 39, 437, 537,
561, 575, 623,
629, 637, 647,
669, 703, 719,
737, 767, 777
VI 59, 231, 519, 723,
749 759, 767, 781,
789, 795, 851,
879, 893, 905,
931, 959
Gabonese V 711
German I 17, 18, 23, 215,
230, 316, 326,
332, 358, 362,
450, 473, 525
II 154, 165, 257
in 28, 256, 401, 405,
435,475,512,525
IV 94, 187, 232, 385,
489, 543
v 53, 141, 273, 363,
393, 647, 783
Ghanaian I 167
Gibraltar VI 749
Greek I 17, 507, 521
IV 198, 241, 445
V 115
VI 723
Hong Kong I 124-
Hungarian II 123
III 405
IV 555
VI 781
Indian I 3, 33, 207, 312
II 18
IV 119
xcviii
• - - - - - -- --- -
• • •• • • .... I'-'-.'-"’
V 53, 335
VI 433
Indonesian III 277
Iranian I 100, 161, 191,
394, 507
II 264
Irish IV 300
Israeli I 246
International Organization V 599
Italian I 20, 97, 164, 179,
185, 199, 278,
285, 289, 316,
341,413, 456,
501, 530, 546
II 236, 293, 298,
302,318,358,519
III 28, 134, 143, 309,
567, 592, 600, 606
IV 214, 227, 241,
389, 516
V 187, 249, 273,
383, 393, 413,
545,599,719, 737
VI 79, 543, 803, 811,
871, 917
Japanese I 49, 297
IV 308
V 67
Jordanian III 315
V 363
Kenyan V 291
Korean I 164, 456, 559
III 108, 315
IV 431
V 15
Kuwaiti I 115
Latvian V 327
Lebanese I 30
II 330, 465
III 452
V 783
Liberian III 282
V 97
Libyan I 58, 304, 476
II 3, 298, 302, 519
III 3
xcix
1
1
1
-
IV 455, 485
Liechtenstein I 559
II 352, 536
IV 232
Luxembourg I 153, 320
V 167, 553
VI 95
Mexican I 27, 76, 87, 376,
385
II 43, 274
Middle Eastern I 425, 440, 486,
528, 559
II 53, 189, 257, 454
III 152
Monaco IV 7
Moroccan I 429
n 217, 300
VI 931
Mozambique II 142
Nigérien VI 859
North-Airi can V 575
Norwegian I 224
Omani VI 843
Pakistani I 3, 33, 40, 56, 207
Panama II 330
III 282
IV 493
V 689, 727
Portuguese IV 516
V 39, 341, 561
Qatar II 11
IV 214
Rumanian I 25, 231, 233, 280
III 299
Russian V 97
Saint-Kitts and Nevis VI 885
Saudi Arabian II 11, 67,465
III 622
IV 75
Senegalese V 15
Slova Kian III 467
South African I 358, 409
South East Asia I 215, 481
II 53
VI 843
Spanish 1 13, 20, 115, 199,
253, 257, 304,
335, 453
c
: i~-'~ •%:.-Si.-..-I» ¿I ./J
II 80, 420, 437

III 613
IV 135, 227, 415,
489, 500
V 207, 623, 743, 797
VI 461
Sub-Saharan V 567
Swedish 1 58, 189
IV 308
V 291
Swiss I 28, 49, 118, 138,
146, 146, 185,
289, 320
II 257
III 299, 452
IV 7, 267, 440, 548,
555
V 249, 689, 727,
767, 797
VI 461, 859, 905
Syrian I 97, 413, 499, 555
II 257
III 487, 512, 525, 567
IV 385, 389
VI 759
Thai I 335
VI 471
Tunisian II 318, 361
VI 433, 917
Turkish I 122, 157
III 185
IV 321,402,527,579
Ugandan I 20
United Arab Emirates II 11, 154
IV 569
VI 945
U.S.A, I 21, 23, 146, 204,
231, 301, 429,
465, 536, 546, 555
11 18,24,27, 33,67,
80, 85, 358, 400,
437
III 3, 34, 46, 68, 100,
256, 309
IV 7, 80, 94, 150,
198, 267, 373,
ci
7
402, 470, 485, 543
V 67, 107, 207, 327,
383, 413, 503
VI 59
Ukrainian VI 885
Venezuelan I 465
Yemen II 309, 508
VI 893
Yugoslav I 18, 105, 118, 191,
230, 285, 301,
332, 347, 399,
473, 490
II 249, 394
III 409, 442, 592
IV 192
VI 803
Pendency of cases
See Lis pendens
Performance Bond V 363
duty to bring the sums paid on the performance bonds
into account III 530
contract
—
effect on validity of after termination of the
I 76
indemnity clause for delay III 530
V 15
meaning of unconditional I 536
II 24
or surety II 217, 526
providing for expert opinion as condition of payment II 217, 345, 526
reimbursement of — in 152
See also FIDIC
Period of limitation
See Statute of Limitations
Place of arbitration
— determination of—
- and Egyptian public policy
n
II
80
32
- and localization of arbitration agreement in a legal
system II 263, 279
— validity of clause providing for alternative fora
II 199

Applicable Law, to proceedings
Power of attorney
apparent II 80, 352, 535
to sign arbitration agreement
- on behalf of a company II 352, 533
for lawyers in ICC arbitration II 69
cii
?cz:o‘2--;-r.-.- ..
vvTi ;V!v.vr
Pre-contractual liability VI 135

Pre-contractual relationship
- and duty to act in good faith II 85
- and existence of arbitration agreement II 533
- of limited assistance when interpreting the contract
itself II 165
Price
adjustment / revision of the — I
IV
233, 440
435
-
-
—
augmentation of the due to refusal to deliver
augmentation of the— due to late performance
I 293, 297
(construction contract) II 302

- calculation of inflationary allowance III 108
- —
compliance with the contractual in spite of the
augmentation of the market price of the goods II 394
- constitutive element of the — III 600
— —
determination of the in a contract for the sale of oil I 440
—
-
price escalation clause in a long term agreement
improbability that arbitrator, even if invested with
powers of amiable compositeur, may complete the
I 81, 378, 502
parties’ agreement with respect to an element as
——
significant as II 437
— payment of III
IV
443, 459
435
V 341, 503
See Vienna Convention of 11 April 1980
—
- lump sum clause II
III
302, 522
152
IV 533
- revision of agreed fixed price in construction contract II 522
—
- undetermined in a supply contract
See also Price revision
II 437
Price escalation
See Price
Price revision
— clause in a contract for the sale of oil I 440
— clause in a contract of carriage
and hardship
I
IV
274
469
and lump sum price clause in a construction contract II 302, 522
under Libyan law II 302, 521
Prima facie
ixistence of an arbitration agreement I 306, 525
II II, 279, 339
III 420, 435, 447
—
decision of the ICC Court on the existence of an
arbitration agreement does not prejudice a plea
regarding the existence or validity of an arbitration
agreement II 279
ciii
- finding by the ICC Court of the prima facie existence II 330, 410
of an arbitration agreement
See also ICC Arbitration Rules :
- of 1975 : Articles 7 and 8 (3)
- of 1998: Article6(2)
Arbitration Proceedings
Promissory Note II 428
- devaluation of currency after payment and before
conversion into another currency I 312
Proper law of the contract
- as a principle of private international law I 4, 123
II 136
— as applicable law to all disputes directly or indirectly
related to the contract III 315
— conflicting with the law of the place of enforcement
of the award T 210, 211
— is not lex loci contractus but the law with which the
contract has its closest connection II 136
Provisional enforcement of the award
- international arbitration III 447
- under French law III 447
See France
- applicable law III 447
- power of arbitrators III 447
Public international law
- government order incompatible with — I 46
- violation of
Public law
— I 45
arbitrator sitting in Switzerland must not give effect

—
to foreign repugnant to Swiss ordre public
of South Korea and arbitrability of dispute
I
I
47
165
Public Policy
actori incumbit probado rule is an element of
and amiable composition
— I
I
449
448
II 361
and arbitrability I 184, 498, 547
IV 1, 32, 341
V 67, 561
and boycott against Israel II 257
and competence of the arbitrator over
a group of companies I 471
and contractual rate of interest II 428
and corruption I 510
IV 1, 561
VI 831, 945
civ
,1
- and exclusion of competence of courts I 17

- and interest of the international community IV 341
- and Lex Mercatoria I 385
- and right to change immigration rules II 452
- application of foreign mandatory rules III 336
- application of the Lex fori in matters of statute of
limitations I 540
- compatibility of the substantive law chosen by the
parties and — I 271
II 257
IV 516
arbitrator
—
contract contrary to and competence of the
I 498
IV 1
V 67
VI 945
i'.
—
cumulative application of the of the seat of
arbitration and of the country of enforcement
of the award with procedural rules I 350, 546
—
cumulative application of the of the seat of
arbitration with the substantive law chosen
by the parties I 455, 554
IV 1
- domestic and international If 199
- effect of national public policy provisions on
international arbitration agreement III 315
See Arbitration agreement
- European and Community I 179, 546
V 561
general principles of procedural law I 351
incapacity of a State/public entity to submit to
arbitration is inoperative in international relations I 222, 282
II 264, 361
IV 341
VI 945
—
- international of France
- joint and several condemnation of the companies
1 152
of the same group II 361

- of Brazil II 33
- of Egypt II 32, 180
- of New York State law V 67
- of South Korea I 164
- of Switzerland I 44, 47, 48
III 220
of the seat of arbitration I 476
cv
violation of international — III
IV
239
1
VI 831
- violation of mandatory rules III 220
See Contract
Purchase in replacement
See Damages
Qatar
ex officio application of consideration of equity IV 214
Quasi arbitrator
and the Engineer’s role under the FIDIC Conditions II 462
Quebec
- Code of Civil Procedure
- article 944(10) II 330
Qui digit judicem eligit ius I 332, 401
Racial discrimination I 230

Rebus sic stantibus
- and imprevisión I 4
- and commission rate in brokerage contract II 53
— and force majeure
- and frustration
1
I
3, 208, 299
3, 208, 212, 299
II 394
III 537
under French law 1 297
under Italian law I 202
under Lex Mercatoria I 297
- under Yugoslav law II 249, 394
- interpretation of — I 4
— —
principle of must be applied with caution
Repudiation of contract
I
III
281, 294, 297
3
- non compliance with contractual requirements II 165
Res inter alios acta II 380
Res judicata
—effect of award I
II
328, 394
339
III 332
cvi
Iv-irJ-:-. i-ïïSSi
V 659
VI 739
— effect
effect of ad hoc award I 394
—decision ofof Committee
an interlocutory award
for Settlement of Commercial
II 339
Disputes III 108

effect of a national court judgment I 328
III 495
in Belgian law I 328
in French law I 328
VI 739
in German law I 328
effect of withdrawal of claims VI 461
of partial award I 111
II 43
Rescission of contract
See Contract
Resolutory condition
- payment date in Termination Agreement I 278
II 227
Review of the Constitutionality of a law III 336, 577
Risk exposure guarantee
See Guarantee
Rome Convention of 1980 (Convention on the Law III 452
Applicable to Contractual Obligations, June 19, 1980)
VI 893
article 3 11 295
III 409
VI 893
article 4 II 295
m 101, 187, 312,
315, 409, 622
IV 300, 415, 499
v 229, 737, 783
VI 893
article 7 III 134, 405, 452
IV 402
article 8(2) VI 893
article 10 III 315
article 15 III 409
article 17 III 197
Russia
New Civil Code (article 395) V 187
evil
s
Sales/Purchase Contract
— and performance guarantee II 24
- and terms of delivery II 387
- acceptance of goods IV 267
- authority of the arbitrator to assess probative value
of certificates of inspection of the goods III 513
- avoidance of sales confirmation based on complaint
relating to delivery under previous contracts II 236
- commercial use of equipment before acceptance tests I 429
- conclusion of — III 401
—conformity of the goods I
II
232
387
IV 267
- contrary to bonos mores I 120
- general conditions of sale of the German Association
of Mechanical Construction Industries III 401
- inspection of the goods by a third party III 513
-*
international sale III 512
IV 465
V 15
late delivery IV 440
liability of the seller for defective goods I 265, 266
II 387
VI 213
— liability of the seller for the goods sold
- under French law 1 265
IV 440
- limitation of liability clause I 266
VI 213
negligence in defining goods sold I 144
negligence shared between seller and buyer I 144
of aluminum 1 301
of cattle I 346
of donkey meat I 417
of equipment for public works II 428
of foodstuffs I 115
of isolation products I 465
of ladies’ boots I 159
of men’s trousers I 374
of military products IV 32
of mining equipment I 429
of natural gas IV 465
of oil products I 67, 224, 233, 237,
292, 365, 449
II 279
IV 493, 548
cviti
i-'-'---'-'-'-
j
•••J
of plywood I 168
of potato seeds II 142
of prefabricated bouses I 555
of rice I 197
of salt I 231
of shares IV 135
VI 135, 789
of shoes I 462
of steel II 249, 394
of supply, assembly and putting into service of
equipment necessary for the erection of an industrial
plant or installation or delivery of a factory I 253, 268, 285, 473
of telecommunications equipment II 27
of trucks I 230
IV 522
of turbines I 355
of undetermined goods I 139, 164
II 223, 236
V 81
- of zinc II 371
- receipt of equipment delivered I 431
- refusal to take delivery of the goods I 116
II 236
IV 267
- refusal to take delivery of vessels I 59
- sale based on sample of goods I 141
- scope of exclusive sales agreement III 46
- specific performance VI 213
- subject to “home law” of seller III 315
- termination
-
force majeure I 233
-
modification of circumstances II 394
- and price renegotiation clause I 234
- of a sales purchase confirmation II 236
See also INCOTERMS
Sales representation contract
See Agency Contract
Saudi Arabia II 11
arbitration
-
permissibility under Saudi Arabian law to agree on II 467
arbitration abroad
Royal decree no. M/46 II 467
-
its application to international arbitration II 467
Senegal
cix
Code of Obligations
validity of an arbitration agreement III 468
Set off
— of claim and counterclaim III
V
46
97
VI 471
Procedure
—
- admissibility of under French New Code of Civil II 199
— as compared to exceptio non adimpleti contractus

- competence of another tribunal
I
III
114
459
- definition in French, Swiss law I 111
Settlement agreement
- settlement of dispute, proof of 1 141
See Award (Consent)
— attempt to settle the dispute in the course of the
arbitral proceedings
III 513
— confidential character of conciliation proposals III 513

See Lex Mercatoria
Ship
— liability for failure of settlement negotiations
See Vessel
I 343
South Africa
Sovereign Immunity
—
- Law of applicable to the merits VI 3
- —
according to Swiss law
- and binding effect of an agreement which has been
I 48
concluded in a manner inconsistent with the

Constitution I 434
II 264
and capacity to conclude an arbitration agreement I 10, 131,251
VI 945
and French law I 251
and immunity of jurisdiction I 247
and pact sunt servanda principle I 10
and Swedish law 1 9
and taxation IV 241
applies only in the relations between the courts of one
State and the courts of another State I 248
choice of the applicable law to determine —
decree as a discriminatory and confiscatory measure
I 248
directed against a party in an arbitration I 44

from enforcement II 11
from jurisdiction II 11
V 167
cx
-.r-.-.JZTJ HI-.-A-
--- - •
-í
§i
in English law I 251

of State 1 9, 126, 131,247
C 11
IV 455
- party to arbitration thanks to universal succession
-
ordered by —
plays no role in international arbitration
I
I
46, 47
252
- State as contracting party and stabilization clause 1 99
- State as guarantor of commercial transaction by a
public authority I 8
- supranational organization II 11
- —
waiver of by entering into an arbitration agreement I
II
126, 131
11
See also State Contract
Spain
Arbitration Law of 22 December 1953 II 201, 205
Civil Code II 199, 420
-
article 1 102 VI 95
-
article 1107 VI 95
-
article 1154 IV 500
-
article 1281 VI 95
-
article 1282 VI 95
-
article 1285 VI 95
- Bad faith (dolo) VI 95
- Law on Judicial Organization II 206
- separability doctrine in Spanish law II 199
- Spanish Constitution II 205
- Spanish law and unilateral termination of a contract I 200
- Spanish law applicable to the merits of the dispute
-
erection of a plant I 254
- validity of arbitration clause
- providing for alternative fora II 199
Sponsorship agreement VI 95
Stabilization clause I 416
- as protection of private party I 99
State
See Sovereign Immunity
State contract
application of general principles of law for
international contracts III 475
IV 341
V 513
application of national law (no) III 475
V 513
legislative act subsequent to the conclusion of the
contract I 135
cxi
- state enterprise I 194, 195, 234
See also Administrative Contract
Arbitrability
Capacity to enter into an arbitration
agreement
Statute of limitations III 86, 382
IV 164
V 363, 383
VI 179
application of the law of the seat of arbitration
(Lex fori) as the law applicable to the merits of the
dispute (Lex causae) I 539
II 136
V 737
interruption of period of limitation IV 192
is a matter of lex fori in English law I 539
n 136
Subcontract
accessory nature of— in relation to the main contract II 400
construction dispute
—
applicability of provisions of main contract to in
I 158
and applicable law I 377, 399
contract
—
application to the of the law governing the main
I 355
conditions under which subcontractor can be joined
in arbitration between owner and primary contractor II 495
law applicable to
Supplier credit
— IV
II
112
428
Surety (caution), meaning of
- or guarantee II 217
IV 569
Suspensive condition
- payment date in Termination Agreement II 227
Sweden
act on Arbitration of 1929 I 10
law of— and sovereign immunity 1 9
contract
—
law of applicable to substance in shipbuilding
I 62
Switzerland
Civil Code
-
article 2 I 53, 86
III 541
IV 164
- article 2 (2) 293
cxii
f. ..------ ,-j.
I
ÿ
II 65
III 236,241,384,544
V 727
VI 859
- article 3 I 53
- article 4 III
III
260
227, 242
- article 8
V 575
Code of Obligations
- article 1 II
V
352, 535
249
VI 859
- article 2 II 352
V 249
- article 3 II 352
- article 5 II 352, 534
- article 11 II
II
81
82
- article 12
- article 13 (1) II 279
V 249
- article 14 II 82
- article 16 II 82
V 249
VI 859
- article 18 I 53, 560
II 57
III 94, 159, 242
- article 19 (1) III
II
242, 259
58
- article 20
III 270, 539
IV 164
V 575, 727
- article 20 (1) III 220, 242
V 249
- article 24 V 249
- article 29 II
V
60
249
- article 31 II 60, 83
V 249
- article 37 II 81
cxiii
i
- article 38 V 249
- article 41 V 727
VI 905
- article 42 (2) III 167, 395
905
VI
- article 43 I 294
- article 44 V 315
VI 859
- article 64(2) . VI 905
236, 237
- article 66 ni
- article 74 m 98, 173
- article 82 m 163
- article 97 (1) n 185
III 392
IV 164
VI 471, 859
- article 100 I 30
- article 102 I 54
III 98, 174, 192, 268
IV 32
- article 104 I 121
II 189
III 173, 396
IV 32
V 249, 575*
VI 471
- article 106 IH 97, 396
- article 107 I 54
185
II
III 164, 192,269
- article 108 I 54
164
III
- article 109 I 54
III 268
- article 11 1 IV 32
VI 471
- article 124 (2) m .168
423
- article 127 I
III 96, 385
cxiv
7 •: «a >-¿1-: .--ÿÿ-i-ÿ:-:-!:-:ÿ! ._ . 1-L-, :J :-T777: -
- article 151 Ill 91, 93

- article 152 111 98
- article 160(1) VI 213
- article 164 V 567
- article 170 V 567
- article 181 II 13
V 529
VI 471
- article 197 III 542, 546
- article 321 e (1) III 392
IV 164
- article 373 II 65
III 172
- article 377 m 158
- article 394 II 61
- article 404 IV 32
- article 412 II 63
- article 413 II 64
III 222
- article 417 II 66
- article 454 (l)et (3) III 384
- article 545 III 260, 274
249
- article 718 V
cxv
- article 720 V 249
- article 764 II 15
* article 822 III 266
- article 868 U 15
- article 933 V 249
Concordat on arbitration
- in general I 69
II 11
- article 1 II 280
- article 1 (3) I 400
- article 4 III 51
- article 6 (1) I 155
II 279, 330, 352
III 556
- article 8 I 43, 154
II 154
- article 10 I 51, 52
- article 24 I 43
- article 26 I 110
n 300
- article 31 I 437, 501
- article 32 I 78, 111, 154, 485
Federal Code of Civil Procedure I 43
- article 17 I 43
- article 24 II 16
Federal Law on Private International Law
article 7 VI 871
article 9 VI 871
IV 32, 389, 402
V 575, 703, 727
IV 536
- article 155 V 249
VI 179
III 80, 569
IV 32, 341, 536
V 249
cxvi
»j .IVJI-,::; =_
¿i
VI 859
IV 341, 391
- article 177(2) VI 945
- article 178 II 352, 534
III 556, 569, 615
IV 536
V 273
IV 341, 389
V 249, 273, 537
VI 543, 859
- article 178 (2) IV 341
V 273
VI 543, 729
- article 178 (3) IV 341
V 273
V 393
- article 186 IV 373, 536
V 703
- article 186(1 bis) VI 871
- article 186 (3) V 689
- article 187 (1) III 557, 567
IV 536
- article 190 (2) IV 389
- and qualification of arbitration agreement II 535
- transitory law provisions III 459
- conflict of law rules of — I 19
- and renvoi I 19
Federal Law on Maritime Navigation under
the Swiss Flag of 23 September 1953 111 383,388,391,392
Federal Law on Unfair Competition III 225
- article 1(d) I 54
- article 1(g) I 55
- article 2 I 55
law of — applied to substance I 20, 232, 235
- and culpa in contrahendo I 140
- and negative interest of the contract as basis for I 145
calculation of damages
- —
law of applied to substance and amiable
composition
I 20
- —
law of applied to substance in demurrage dispute 1 29
- —
law of and written form of agreement II 80
—
- law of and parties’ choice of English law as II 142
cxvii
L
applicable substantive law
- contractual penalty I 423
- changed circumstances I 293
- contract of works I 400
- more flexible application of Swiss law for
international contracts I 294
- ordre public I 44, 47
V 727
- sovereign immunity I 48
- Penal Code
-article 315 III 229
- Procedural law of the Canton of Geneva I 112
- Procedural law of the Canton of Zürich II 180, 540
See Applicable Law, to procedure
Syria
applicable law to substance I 97
capacity of a state enterprise to enter into an
arbitration agreement II 257
Civil Code
- article 20 IV 385
power of the arbitrator to rule on his own competence H 257
Take or pay clause III 489

Taxation
arbitrability of tax disputes III 332
IV 241, 402
See Arbitrability
—
deduction of third party tax liability
payment of — under Libyan law
-
III
II
282
3
- provision for future tax debt IV 135
—
sub-contractor’s entitlement to tax exemption granted
to contractor III 175
—
tax exemption from local taxation
Technical expertise
III 175
See Expert Opinion

Termination of contract
automatic termination clause in a concession
agreement I 204
and abuse of law V 629
consequences of the non-rigorous termination of a
contract I 278
cxviii
-- !/«!,:«:liLi;
V 291, 609, 623

VI 851
consequences of the termination of a concession
agreement I 220
IV 66
consequences of the termination of a contract for
delivery of a plant 1 253
II 400
due to difficulties making the performance
impossible II 257
for delay in carrying out administrative formalities I 304
for delay in the opening of a documentary credit I 197, 374
in Italian law 1 200
v in Spanish law I 200
possible only if foreseen in the contract I 200
termination clause and arbitrator acting as amiable
compositeur II 380
time limit V 589, 783
termination of distributionship agreement IV 150, 415
V 609
VI 851
- termination of licence contract IV 198
- termination of sales contract
-
clause for the renegotiation of the price does not
automatically give rise to— I 234
- due to change of circumstances II 394
- due to force majeure I 233
See also Contract
Repudiation of Contract
Terms of reference
Arbitration
—
approval of by the International Court of
III 447
jurisdiction
—
claim not mentioned in was not within arbitrator’s
II 43
belated quantification of the claims III 459
new claim I 259, 454, 523
II 279
III 401, 429, 613
IV 135
See also Arbitration procedure V 589
New Claim
VI 879, 893, 985
- rider to —
See also Arbitration procedure
III 401, 459
cxix
Z
Ï
T
(article 16)
scope of — IV
V
94
689
VI 893
Statement of defense III 429
V 141
- Terms of Reference constitute agreement to arbitrate III 143
See Agreement to arbitrate
—
— —
—
supplement the arbitration agreement
and competence of the arbitrator
II
I
274, 279
489
—— - and procedural order
-
and provisional timetable
V
V
761
609
- contents and effect of — II
VI
279
893, 917
—
consequences of the signature of the by a party
which challenges the arbitrator’s jurisdiction II 288
V 141
and time limit for introduction of counterclaim I 316
non-exhaustive character of the summary of the
parties’ respective claims II 279
issues to be determined II 257
VI 985
See also ICC Rules of Arbitration
-
of 1975: article 13
- of 1998: article 18
Tort V 207
arbitrability of tort claims III 336, 577
claim in n 18
competence of arbitrator over a tort claim n 18, 358401,420
IV 548
V 719, 777
VI 879, 985
See also Arbitrability
Trade usages
See International trade usages
Treaty of Rome III 561
article 85 / article 81(1) I 166, 179, 341, 546
IV 52, 543
V 3, 39, 561, 719
VI 231, 543
- suspension of arbitration proceedings due to
violation of article 85 I 180
- invalidity of the contract I 182, 341
article 86 I 341
IV 52
cxx
Y/- • -- - ------- J.-.- 11‘. !.ù’.■—"J:"—'!"
:'
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■
!
interpretative ruling of the Court of Justice

(article 177) I 179, 342
Regulation No. 17 I 180, 182
VI 231
- Regulation No. 19/65 I 342
- Regulation No. 67/67 I 341
Regulation No. 83/83 V 3
See also European Court of Justice
European Law
Treu und Glauben I 276
Tunisia
-
article 251 II 363
Code of Obligations and Contracts
Turkey
Code of Obligations
Export Incentive Certificate IV 402
ULIS I 348
HI 401, 409
article 3 II 236
article 9.3 II 236
article 10 I 198
II 236
article 11 I 232
article 17 V 115
article 39 I 232
II 236
article 41 II 236
article 43 II 236
article 49 II 236
article 66 II 236
article 68 II 236
article 74 (1) II 394
article 82 I 282
article 85 II 236
article 85 II 394
article 86 I 282
article 88 1 205, 229, 282
cxxi
- notice of lack of conformity of goods II 236
- substantial breach of contract I 198
UNCITRAL Arbitration Rules I 333,356, 401,415
DNCITRAL Model Law I 463
II 263
V 249, 363
Unconditional guarantee of performance II 24, 217
—indemnity clause for delay in the works
See FIDIC
III 530
Unforeseeability
and Lex Mercatoria II 302
UNIDROIT Principles IV 321, 415, 440,
465, 493, 500,
516, 522, 527
V 115, 413, 513,
529, 575, 609
VI 795
Uniform Customs and Practices for Documentary Credits
(ICC) I 116, 336
V 15, 413, 529, 647
United Arab Emirates II 11
IV 569
United Kingdom
and immunity of jurisdiction I 251
and statute of limitations I 540
- determination of proper law of the contract II 136
- English Arbitration Act (1996):
-
Sect. 7 VI 843
-
Sect. 39(1) V 335
-
Sect. 46 VI 843
- Insolvency Act VI 79
—
- law of and doctrine of frustration
- Law on the Sale of Goods of 1979
I 3
- section 50(7) in 45
- proof of foreign law II 136
- questions of limitations are governed by lex fori II 136
United States of America
- Foreign Corrupt Practices Act V 575
- Hart-Scott-Rodino Antitrust Improvement Act (1976) VI 749
United Nations Commission for International Trade Law
See UNCITRAL Arbitration Rules
UNCITRAL Model Law
- Definition I 99, 267, 414, 428
See also Interpretation of arbitration agreement
cxxii
221Sv.-.-”.-- cLT"Z7ZT
Venire contra factum proprium V 647, 727

VI 811
and plea of incapacity of a public enterprise to enter I 283
into an arbitration agreement
II 263, 361
- and validity of arbitration clause II 540
See also Good Faith
Estoppel
Vessel
- delay in loading of — I 30
- refusal to take delivery of — I 59
Vienna Convention on the Law of Treaties of 23 May 1969 I 434
Vienna Sales Convention of 1980 (United Nations
Convention of April 11, 1980 on Contracts for the
International Sale of Goods)
- article 1 III 442,501,592,606
V 187
VI 471
- article l(l)(a) IV 440
V 155,229, 249,273
VI 723
article l(l)(b) IV 435, 555
V 15,341, 383
VI 213,433,723,831
article 1(2) V 273
article 2 V 249
article 3 III 592
IV 415, 555
V 273
VI 433, 917
article 4 III 501
V 15
article 6 III 501
IV 555
V 249, 273, 383
VI 213, 831
article 7(2) III 501, 592, 606
V 15, 187, 273, 413
VI 213
article 8 III 592, 501
IV 435
V 15, 249, 413
article 9(1) m 512
IV 415, 435
cxxiii
VI 723
article 10 III 592
article 11 V 249, 413
article 14 V 249
article 17 V 413
article 18 II 387
article 19 III 409
V 249
article 23 V 249
article 25 IV 415, 440
V 127, 229
VI 859
article 26 III 501
V 413
- article 27 V 413
—
article 28
- article 29
VI
III
213
592
—
article 34
- article 35
V
III
15
500
- article 35(2)(a) V 341
—
article 39 III 500
—
article 38 II
III
387
409
article 39 n 387
V 383
article 40 II 223
III 409
V 383
article 44 III 592
article 45 V 127
VI 433
c VI 213
article 46
article 47 IV 440
V 15
article 49(l)(a) IV 440
V 15, 127
article 49(2) V 127
article 51(1) IV 440
cxxiv
!
i
îV

V 155
See Price
V 413
article 57 III 442
article 58 III 442
article 59 III 442
articles 61, 62, 64 III 501
article 63 III 501
V 413
article 64 IV 415
V 413
article 67(1) V 155
article 69 III 501
article 71 V 413
V 229
article 74 II 394
III 409, 501
IV 415,440, 555
V 127, 155,229,413
VI 433, 471
article 75 II 399
IV 440
V 229
VI 471, 859
article 76 V 127, 529
VI 471
article 77 III 409, 501, 592
IV 493, 555
article 78 in 443, 592
IV 415, 440
V 155, 187, 229,
249, 575
article 79 III 501
V 529
VI 931
article 80 V 413
VI 433
cxxv
article 82 V 341
article 85 ni 501
article 92 V 229
article 95 ni 501
article 100 III 442
article 100 (2) n 394
III 501
V 383
reflects prevailing trade usages II 223
III 409
conditions for application III 409
IV 435, 440
VI 917, 931
confonnity of the goods III 513
V 127, 187
damages III 501
exemption UI 501
fundamental breach of the buyer III 501, 606
IV 440
VI 859
general principles III 501, 606
IV 440
in general III 315, 512
interest III 443
IV 440
VI 471
interpretation of the Convention III 501, 606
interpretation of the parties’ will III 592
IV 435
VI 831, 917, 945
late delivery IV 440
late payment III 606
obligation to mitigate the damages III 501, 592
V 127
obligations of the buyer III 443, 501, 606
VI 471
obligations of the parties III 501
VI 859
parties will (for application of the Convention) III 606
passing of risks III 501
V 127
penalty clause III 500
'preservation of the goods HI 501
price reduction III 592
questions concerning matters governed by the
Convention which are not expressly settled in it III 501
CXXVl
r.L - y
- - z ..... ic-xy--- -í:-L- -T-'-
- reasonable time for giving notice of the lack of

conformity (article 39 (1)) III 592
- reference to national law III 501
V 383
VI 471, 723, 831,
859,945
remedies available to the seller III 501
silence of the Convention on the burden of proof III 513
sphere of application of the Convention III 501
IV 435, 440
V 383, 669
VI 917, 931
Visa I 6
for personnel to enter country of performance of
contract I 230
Voie directe
See Applicable Law, to substance
Waiver
— waiver of right to raise a claim II
IV
VI
123
198
135, 345
of condition precedent VI 311
of pre-emption right VI 345
of right to arbitrate II 18
of sovereign immunity by entering into arbitration
War
- definition of state of —
- and validity of arbitration agreement
1
I
34, 35, 36
36
See also Hostilities
Warranty
- breach of contractual —
- limitation of — in non performed contract
VI
II
345
27
- —obligation and breach of contract
Washington Convention of 1965 (Convention on the
VI
I
231
130, 356
Settlement of Investment Disputes between States and
Nationals of Other States of March 18, 1965)
II 324
III 75
fVellgfall der Geschdftsgrundlage
See Frustration of contract
Rebus sic stantibus
cxxvii
Y
Yemen Arab Republic
- law of limitations II 508
Yugoslavia
—
Law of applicable to
- compensation contract I 120
-sales/purchase contract n 249
Law on Obligations 1978 II 249, 394
III 410
—
public law of governing Yugoslav parties
Yugoslav law on export and import controls
I
I
18, 120
491
II 394
cxxviii
H
Table analytique consolidée

des sentences publiées
entre 1974 et 2011
r
-- r •• -Lr.-~ ■
fi
Table Analytique
A
Volume Page
Abus de droit
dans la résiliation d’un contrat de distribution I 32
et amiable composition I 376
et appel d’une garantie bancaire 1 86
et droit libyen II 302
et obligation de bonne foi VI 811, 843
exception à la règle pacta sunt servanda II 380, 386
Acte de Mission
- acte de mission et compromis III 143
- addendum à l’acte de mission III 401, 459
Voir Procédure arbitrale
Règlement d’arbitrage CCI de 1975:
article 16
- approbation de 1’ par la Cour—
- conséquences de la signature de 1’ — par une partie
III 447
qui conteste la compétence de l’arbitre II 288

V 141
contenu et effet de 1’ — II 279
VI 893, 917
- et calendrier du déroulement de la procédure V 609
- et délai pour présenter une demande
reconventionnelle I 316
- et demandes nouvelles I 259, 454, 523
II 43
II 279
III 401, 429, 613
IV 135
V 589
Voir Procédure arbitrale VI 879, 893, 985
- et ordonnance de procédure V 761
—
- 1’ complète la convention d’arbitrage II 274, 279
— —
1’ exposé sommaire des prétentions des parties n’a
aucun caractère exhaustif II 279
—limite la compétence de l’arbitre
- moyen de défense
I
III
489
429
V 141
points litigieux II 257
VI 985
portée de 1’ — IV
V
94
689
VI 893
cxxxi
— quantification tardive des demandes
Voir aussi Règlement d’arbitrage CCI:
III 459
- de 1975: article 9(4), 13(1), 13(2)

- de 1998: article 18
Action pénale
—
1’ en justice n’est pas contraire à la convention
d’arbitrage II 361
— procédure pénale parallèle V 553
VI 135
Actor sequitur locum rei I 308
Actori incumbit probado
Voir Preuve
Adaptation du contrat III 256
IV 321, 527, 533
—
-
clause d’ —
compétence de l’arbitre amiable compositeur de
I 199, 301
I 320, 503
procéder à 1’— II 380, 437
- pour changement des circonstances extérieures I 293, 300
Adjudication publique internationale III 584
Affacturage I 362
V 623
Afrique du Sud
Droit applicable au fond VI 3
Agence Commerciale
Voir Contrat d’agence commerciale
Ajustement du prix
clause de parité monétaire I 233
en cas de dévaluation ou d’inflation I 26
Algérie
— droit applicable au fond I 69
- droit civil inspiré du droit français I 69
- Ordonnance 67-90 du 17 juin 1967 portant code des
marchés publics
— Loi No. 78-02 du 11 février 1978 sur le monopole
d’État du commerce extérieur
- Décret 82-145 du 10 avril 1982 et Décret 84-51 du 25
III
m
555
225
février 1984 portant réglementation des marchés de

l’opérateur public m 555
Allemagne (République Fédérale)
- Code de procédure civile
-
article 1027 i 215
IV 187
droit allemand et droit de la concurrence I 346
droit applicable au fond I 19
V 393, 647
cxxxii
:
Amiable compositeur, pouvoir de l’arbitre

- d’adopter une solution plus conforme à l’équité
qu’une application stricte des règles de droit II 318
- d’appliquer les règles de conflit du for I 401
- de compléter le contrat I 505
III 613
de fixer le droit applicable ou d’y renoncer I 78, 348, 355, 377
II 361
de modérer les effets d'une clause de résiliation
automatique II 380
de réduire un prix I 443
de réviser/d’ adapter le contrat I 323, 440, 506
II 380, 437
de se dispenser de l’obligation d’observer le droit 20, 225, 353, 403,
applicable au fond du litige sous réserve des règles I 500
d’ordre public II 380
ni 613
- de se dispenser de rechercher un système de conflit I 487
de lois pour déterminer le droit applicable au fond V 553
- de statuer ex aequo et bono I 225, 325
-
rendre complice d’une fraude

—
en exerçant son pouvoir modérateur, 1’ ne peut se
II 380
- et calcul du préjudice I 436
II 27
et choix de la Lex Mercatoria I 110
et dispositions du contrat 85, 381, 438, 447,
I 505
II 43, 380
et fixation des intérêts moratoires I 348
II 43, 435
et liberté de répartir les frais de l’arbitrage II 43
et ordre public transnational/intemational I 449
III 613
— et procédure arbitrale
-
retard dans la communication d’un mémoire I 433
- et prononcé de mesures provisoires I 110
- et usages du commerce international II 380
—
- il est douteux qu’un arbitre, même , puisse parfaire
l’accord des parties en ce qui concerne le prix II 437
- n’est pas un médiateur I 506
- n’exclut pas une appréciation des droits respectifs des
parties au regard d’un système de droit déterminé II 318
- portée des pouvoirs du tribunal arbitral III 613
Voir aussi Amiable composition
Règlement d’arbitrage CCI:
- de 1975: article 13(4)
- de 1998: article 17(3)
cxxxiii
Amiable composition
- définition
-
en droit français I 443, 502
II 361
VI 739
- en droit italien I 501
- en droit suisse I 501
- en droit tunisien II 361
et abus de droit I 376
et équité I 20, 74, 97
VI 739
et fraude II 380
la clause d’— n’est pas une clause d’élection de droit I 383
II 318
la clause d’amiable composition dispense l’arbitre I 347, 353
d’appliquer les règles de droit V 553
la clause d’amiable composition dispense l’arbitre de
déterminer un droit spécifique applicable I 377
la clause d’amiable composition dispense l’arbitre de
rechercher un système de conflit de lois pour I 487
déterminer le droit applicable V 553
la clause d’amiable composition n’exclut pas une
appréciation des droits respectifs des parties au
regard d’un système de droit déterminé n 318
relation avec la Lex Mercatoria I 110, 113, 382
II 43
Voir aussi Droit applicable au fond
Ex aequo et bono
Equité
Lex Mercatoria
Anational
Voir Normes anationales
Antilles Néerlandaises
- Code civil
Annulation du contrat
anticipée I 141
d'une concession par un gouvernement I 218
pour erreur in contrahendo I 144
après un événement de force majeure I 7
Arabie Saoudite U il, 467
Arbitrabilité II 24
— des litiges d’après la loi belge du 27 juillet 1961
sur les accords de distribution exclusive III 195
accord de distribution exclusive III 134
IV 569
cxxxiv
- accord de licence
— après mise en liquidation d’une partie à l’arbitrage
III
I
435
237
— d’une demande fondée sur la responsabilité

délictuelle
- droit applicable
IV
II
V
308
358
207, 719, 777
III 75, 567
IV 1, 389, 543, 569
et droit communautaire (CEE) I 179, 341, 546
IV 300, 333, 543
V 561, 719
VI 543
et ordre public I 184, 547
rv 569
V 67, 561, 783
existence d’un différend (oui) I 499
fiscalité III 332
Voir Fiscalité IV 241
litige fondé sur la loi RICO III 577
IV 474
litige relatif à l’exploitation d’un brevet III 435
IV 470
non-arbitrabilité de certaines matières au regard du III 315
droit national IV 333, 569
V 67
— pouvoir des arbitres III 567
V 67, 561, 719
restriction de la concurrence III 561
IV 300
Voir Concurrence
Propriété intellectuelle VI 543
Arbitrage international III 447, 459, 525
V 629
définition I 417
l’arbitrage
—
détachement de 1’ des dispositions nationales sur
II 263
en droit belge II 370
en droit fiançais II 370
V 629
- suivant la loi fédérale suisse de droit international
privé (18 décembre 1987) II 370
Arbitrage multipartite I 159, 326, 355
- appel en garantie II 497
VI 973
consorité des défendeurs II 11
droit pour chaque partie de nommer un arbitre II 495
égalité des parties II 11, 495
cxxxv
interprétation d’une convention d’arbitrage
multipartite II 497
intervention d’un tiers II 484
VI 973
nomination des arbitres II II
Arbitre
étendue de la saisine des arbitres II 279
V 781
- —
fonction de 1’ et immunité de juridiction I 252
— —
il est douteux qu’un , même amiable compositeur
puisse parfaire l’accord des parties en ce qui concerne
le prix II 437
Voir Amiable compositeur
—
1’ n’a pas de Lex fort I 303, 463
II 264
~ —
1’ n’est ni le représentant, ni l’organe d’un État I 10, 248
—
- I’ n’est soumis à aucun système de conflit de lois
étatique
I
III
352
567
— —
les pouvoirs de 1’ sont délimités par la loi de
l’arbitrage et non la loi du lieu d’exécution I 292
—
- nombre d’ lorsque le nombre n'est pas spécifié
Voir Arbitrage Multipartite
I 51
Nomination d’arbitre
- —
obligation de 1’ de respecter l’autorité de la chose
jugée I 328
Voir Autorité de la chose jugée
- pouvoir de 1’- de condamner une partie à verser sa
part de la provision V 545, 727
—
- pouvoir de 1’ d’ordonner des mesures provisoires II
VI 300
- —
pouvoir de 1’ de tenir compte des usages
ducommerce international IV 500
—
- pouvoir de 1’ de tirer ses propres conclusions du
défaut de collaboration d’une partie IV 232, 470
- pouvoir de 1’- de prononcer des astreintes VI 917
— applicable
—
pouvoir discrétionnaire de 1’ de choisir le droit
I 188, 303, 463
—
- refus de 1’ de signer la sentence
Voir aussi Acte de mission
1 60, 66
Compétence de l’arbitre
Compétence-compétence
Lex fori de l’arbitre international
Opinion dissidente
Assurance
contrat aléatoire III 550
qualification de la police d’assurance III 550
recevabilité de l’action du cédant (non) III 550
cxxxvi
• • ■ ■ ;
- --
- - --- \
règlement postérieur à la prime III 550

sinistre III 550
stipulation par autrui III 550
subrogation I 312
transfert de droit à indemnité III 550
Assurance-crédit III 550
- COFACE III 534
- qualité pour agir de l’assuré III 534
- subrogation III 534
Autonomie de la clause compromissoire
Voir Convention d’arbitrage
- de 1975: article 8(4)
-de 1998: article 6(4)
Autonomie de la volonté
Voir Droit applicable au fond
Autorité de la chose jugée
- d’un jugement rendu par un tribunal étatique I 328
III 495
- d’une décision rendue par un comité d’État pour le
règlement des litiges III 108
- d’une sentence ad hoc I 394
- d’une sentence arbitrale I 328, 394
II 339
III 332
V 659
VI 739
d’une sentence partielle I 111
II 43
d’une sentence préparatoire ou réservant le droit des
parties à se pourvoir à nouveau II 339
effet du retrait d’une demande VI 461
en droit allemand I 328
en droit belge I 328
en droit français I 328
VI 739
Autriche
Code civil
conclusion d’une clause d’arbitrage au nom d’une
société en droit autrichien II 535
droit autrichien et mandat apparent II 535
Loi fédérale sur le droit international privé III 502
cxxxvii
B
Belgique
Code civil
I 93
- article 1149 I 12
III 104
- article 1150 I 12
II 371
II 371
-article 1152 I 84
III 102
droit international privé I 313
loi du 27 juillet 1961 sur les accords de distribution
exclusive III 138
loi du 27 mars 1985 sur l’arbitrage international II 371
loi du 13 avril 1995 sur l’agence commerciale V 743
Billet à ordre
dévaluation de la monnaie après paiement mais avant
le change en devises I 312
matérialisant un crédit fournisseur II 428
Bonne foi VI 519, 811, 945
en application de la loi du. New Hampshire II 358
en droit californien II 85
—
la doit présider à l’exécution des contrats
internationaux
10, 124, 279
I 302, 330, 352,
II 387, 400, 437
III 512
IV 455
V 609
VI 59
—
la est un principe de la Lex Mercatoria II 400, 437
VI 945
- la— qui est toujours présumée, doit présider à la
négociation des contrats et à leur interprétation,
comme à leur exécution II 437
- obligation de coopérer de
Voir Coopération
— III 420, 429
V 623
VI 859
cxxxviii
-;V.- -0:1
i
-ÿI
ij
renégociation du contrat
—
obligation des parties de mener de toute I 296
II 428
obligation des parties de négocier de — I 296
II 428
V 463
venire contra factum proprium II 539, 540
V 647, 727
- violation de la —
Voir aussi Lex mercatoria
I 53, 55, 72, 81
Bonne mœurs
et corruption I 507
II 53
IV 1
V 575
nullité du contrat contraire aux— I 494
II 53
IV 1
V 575
violation des- !t contrat fictif I 120
V 727
Boycottage
de l’Etat d’Israël I 59, 62
II 257
- embargo VI 803
Brésil
- —
imposé par un Etat IV 455
Code de procédure civile

ordre public II 33
Californie
- Code civil
-
article 1511 III 232
- Code de Commerce
-
- Sect. 2608 II 28
-obligation d’agir de bonne foi II 85
- obligation de minimiser le dommage II 85
- résiliation rétroactive du contrat
II 85
Capacité de compromettre
—
-
application de la loi personnelle des parties
de l’État/de l’établissement public
II
I
264, 352
126, 222, 283
II 257, 264, 361
cxxxix
IV 80, 341
la question de la portée du pouvoir de représentation
doit être tranchée selon la loi du lieu où le
représentant a conclu la convention d’arbitrage avec
le tiers II 352
mandat apparent II 410
Caution n 217, 345
IV 569
CEE (Communauté Économique Européenne)
Voir Commission de la CEE
Droit européen
Traité de Rome
Centre International d’Expertise de la CCI I 288
Voir aussi Expert technique II 217, 345, 526
Cession
de contrat IV 7, 52
V 187,437
VI 311
- de créances III 555
IV 341
V 167, 567
VI 811
—VoirdeCommerce
dette
de compensation
III 299
IV 341
- de droits patrimoniaux IV 66
— droit applicable III
V
108
437, 567
de garantie bancaire V 81
validité de la — m 108
IV 7
Chambre de Commerce Internationale
—
- compétence de la pour connaître d’un différend
entre deux parties françaises II 339
—- à Genève
—
une seule au monde n 69
II 69
IV 227
- à Zürich II 180
Voir aussi Convention d’arbitrage
- de 1975: Règlement intérieur de la Cour
(article 1)
Change
perte de—
- en raison d’un paiement tardif de l’entrepreneur
principal II 165
cxl
¿-ÿf-'vsa ....I;T:ï£SïL1:
- demande d’un sous traitant en réparation d’une— II 165

Voir aussi Risque de change
Changement de circonstances
Voir Modification des circonstances
Chose jugée
Voir Autorité de la chose jugée
Clause anglaise I 503
Clause d’arbitrage
Clause compromissoire
Clause de Hardship
Voir Hardship
Clause d’imprévision ou de parité monétaire
— obligation d’ajuster le prix
- ne donne pas un droit automatique à la résiliation du
I 233
contrat I 234
Clause d’indexation 81, 378
Clause pénale
Voir Pénalités contractuelles
Clause recette IV 7
Clause résolutoire
- manque de rigueur dans l’exercice d’une— I 278
II 227
Clause de révision de prix
Voir Révision du prix
Clause de stabilisation ou d’intangibilité I 99, 416
Clause take or pay III 489
COFACE III 534
Voir aussi Assurance crédit
Commerce de compensation III 299, 592
Voir Cession
Commerce international
- et règles de l’arbitrage commercial international I 152
- l’autonomie de la clause compromissoire est une
règle matérielle du— I 320
- l’obligation d’examiner la marchandise dès réception
est une règle matérielle du
Commission de l’Union européenne
— I 232
-
renvoi d’un litige devant la Commission I 179
Voir aussi Traité de la CEE
Commission des finirons Unies pour le droit commercial
international (C.N.U.D.C.I.)
Voir Loi modèle de la C.N.U.D.C.I.
Règlement d’arbitrage de la C.N.U.D.C.I.
Compensation
compétence d’une autre juridiction III 459
cxli
!
exception de— III 46
V 97
VI 471
—
comparaison avec exceptio non adimpleti contractus I 114
—
définition en droit français et suisse
—
- recevabilité d’une demande de d’après le Nouveau
I 111
Code de procédure civile français 11 199

- à l’égard d’une garantie bancaire émise par un tiers 1 162
- à l’égard de sociétés non signataires de la clause I 146, 154
d’arbitrage IV 308, 510
VI 973
- après accord des parties de retirer leur arbitrage de la
CCI I 101
- après révocation par le défendeur de la clause
d’arbitrage II 33
—— en l’absence de clause compromissoire
et arbitrage multipartite
I
II
473
11
Voir Arbitrage multipartite
— et contrat connexe II
IV
227
461
et contrat contraire à l’ordre public I 494
IV 1
VI 831
et contrat de rente IV 536
et contrat de travail I 306
et demandes nouvelles n 43
et dissolution d’une partie I 43
et droit communautaire I 164, 342
V 719
VI 231
et droit du pays du lieu d’exécution de la sentence I 290
et faillite d’une partie I 530
III 487, 622
IV 308
V 703
et force exécutoire de la sentence I 290
et l’injonction d’un tribunal étatique d’arrêter la I 37
procédure arbitrale II 309, 512
et procédure judiciaire connexe I 37
V 363, 437
VI 135
—
la partie qui conteste la n’est pas considérée avoir
accepté cette compétence par le seul fait qu’elle s’est JJ 330
présentée devant l’arbitre V 141
litige fondé sur la loi RICO III 57
IV 474
cxlii
,
-----
r ■
. ...
-V:|
I
rV.
lorsqu’un contrat parmi plusieurs n’est pas signé I

nécessité d’un différend (oui)
138
I 499
pour connaître d’une demande fondée sur la II 358
responsabilité délictuelle III 401
V 719, 777
- pour nommer un expert II 134
- pour recommander aux parties de ne rien faire qui
puisse aggraver le différend
— pour rendre une sentence partielle
I
I
II
164
154
3
V 609, 689
VI 231, 843
- pour statuer sur les relations entre la banque et le
bénéficiaire d’une garantie bancaire I 482
- sources de droit pour trancher la question de la — I 466
VI 973
vérification de la — III 447
IV 455
V 609, 689
VI 231
Voir aussi Clause compromissoire, Faillite
Compétence-compétence
Litispendance
Compétence de l’arbitre pour statuer sur sa propre
compétence
Voir Compétence-compétence
Compétence de l’autorité judiciaire pour nommer un expert
- malgré l’existence d’une clause d’arbitrage I 515
Compétence-Compétence 37, 43, 51, 126,
149, 154, 216,
289, 308, 521,
525, 529
I 18, 154, 199, 257,
II 330
III 68, 567
IV 373, 510
V 229, 689
VI 231, 795
droit anglais II 330
droit syrien II 257
et établissement public I 283
II 257
IV 341
effet négatif VI 795
cxliii
et immunité de l’État I 247
IV 455
V 167
— non respect de la procédure préalable de conciliation
par la demanderesse 242
I
— qu’il s’agisse de l’existence de la clause ou de son
étendue
II
IV
330
373
- règle admise en arbitrage international pour que I 218, 249, 284
l’arbitre statue sur sa propre compétence II 330
- de 1975: article 8(3)
- de 1998: article 6(2)
Concession exclusive
- aux États-Unis I 204
aux États-Unis et au Mexique I 185
- en France I 341
Voir aussi Contrat d’agence commerciale
Conciliation
- la procédure de -préalable à l’arbitrage est-elle
obligatoire ou facultative? I 242
Concordat Suisse sur l’Arbitrage
Voir Suisse
Concurrence
arbitrabilité III 561
IV 300, 543
V 561, 719
Voir Arbitrabilité VI 543
—
-
champ d’application des règles de -
concurrence déloyale dans un contrat de licence/de
VI 59
I 21, 54
distribution IV 415
V 719, 783
VI 59, 905
et droit communautaire I 166, 179, 546
III 561
IV 445, 543
V 561, 719
Voir Traité CEE VI 59, 231, 543
Conditions générales
— —dans lesquelles est insérée la clause
compromissoire II 274
- —
de l’Association des entreprises allemandes de
construction mécanique 401
III
- acceptation par le vendeur des— d’achat sous réserve I 171
de certaines modifications II 387
—Conditions n° 188NU/CEE III 401
cxliv
L:-f.
-!
IV 308, 321
V 127, 647
- Conditions générales pour la fourniture de produits
mécaniques, électriques et électroniques (conditions
ORGALIME) V 341, 669
- Conditions GENCOCO (General Conditions
of Contracts) V 437
Condition potestative I 445
III 561
Condition résolutoire II 227
Condition suspensive II 227
Confidentialité
après résiliation d’un accord de consortium III 414
clause de confidentialité IV 470
V 567
et arbitrage III 561
VI 135
- secret des affaires I 330
Conflit de lois (règles de)
- convergence des règles de conflit du pays du
domicile des deux parties I 17
- application des règles de conflit du droit choisi par les
parties I 312
- droit français 1 12
- droit suisse I 18, 19
- droit yougoslave (contrat d’achat/vente) II 249
- du lieu d’exécution du contrat I 15
- du siège de l’arbitrage I 4, 16, 18, 19

—
- l’arbitre n’est soumis à aucun système de étatique I 217
Conflit armé
Voir Hostilités
Connaissement III 382
IV 15
Connexité
—
- rejet d’une exception de au motif de l’existence
d’une convention d’arbitrage
II 420
III 468
Voir aussi Litispendance
Consortium
- — pour l’exploration et l’exploitation d’un gisement
pétrolier III 584
Voir Pétrole
— clause sur les aires d’intérêt mutuel III 584
r
cxlv
dissolution III 256, 414
droit applicable au contrat de— identique à celui du
contrat principal (non) I 358
exclusion d’un associé III 256
nullité d’une clause interdisant la compensation d’un
associé en cas d’exclusion III 256
révocation de la direction par un associé III 256
Contrat
accord précontractuel VI 859
— conditionnel III
IV
414
548
— acceptation
—
— international
tacite du—
m 600
III 220
- adaptation du — par l’arbitre III 256
Voir Adaptation du —
— apparence II 330
V 677
autorisation administrative II 263
m 420, 420
IV 455, 465
cause licite / illicite III 560
IV 543
V 575
VI 831
cession de —
cession de créances
III 555
III 555
V 567
clause d’exclusivité VI 749
clause rebus sic stantibus III 537
conclusion du— par une succursale n’ayant pas la
personnalité morale II 400
conclusion pour le compte d’une société à créer II 330
contrat cadre II 358
IV 522, 548, 569
contrat fictif III 220
IV 431
Voir Corruption V 727
- droits d’exclusivité sur un système technique III 108
— durée V 589
— effets de la nullité du contrat
- effets sur la clause compromissoire de la non entrée
I 120, 490
II 420
en vigueur d’un — III 420
IV 465
effet relatif V 537
entrée en vigueur I 56
III 414, 420
IV 548
cxlvi
--1 ITT:-'
&!
—
- l’exécution du ne constitue pas une condition de
validité IV 66
- exclusion de responsabilité III 561
IV 164
existence et validité IV 119
formation du— II 387
IV 522
V 115, 609
VI 329
- forme écrite requise pour amender le contrat II 80
- groupe de contrats VI 729
- indisponibilité du corps humain III 537
- indivisibilité d’un groupe de contrats I 139
- interprétation du — 266
100, 429,489, 584
I 227, 455, 470,
III 516, 522
IV 393, 437, 463,
V 513, 769
VI 213, 329, 831
langue du - V 513
modification des obligations contractuelles I 57
IV 150
—
la nullité du n’a aucune incidence sur la validité de
la clause d’arbitrage
I 290
II 199, 420
négociations précontractuelles II 165
V 463
objet déterminable III 561
obligation de diligence III 420
obligation de coopérer de bonne foi III 420
IV 455
V 659
Voir Coopération, Bonne foi VI 859
- obligation de se comporter loyalement III 475
V 463
Voir Usages du commerce international
-
d’équipement
—
obligations implicites dans un pour l’installation
II 27
- obligation des parties d’exécuter le contrat en
attendant la décision des arbitres I 538
- obligation d’information II 263
III 475
V 393, 677, 769
VI 59, 749
obligation de préserver le caractère confidentiel des
informations obtenues au cours de la négociation du
contrat III 414
cxlvii
obligation de se renseigner III 475
V 677, 769
obligation précontractuelle III 414
IV 516
VI 859
- obligation des parties d’exécuter le contrat en
attendant la décision des arbitres I 538
- obligation des parties de minimiser le dommage
Voir Préjudice
— obligation des parties de négocier de bonne foi
Voir Bonne foi
— pluralité de contrats IV
V
461
39, 545, 677
VI 729
portée du paraphe en l’absence de signature II 330
prohibition des engagements perpétuels V 589
qualification par l’arbitre I 429
IV 516
V 589
VI 759, 781
résiliation I 27, 30, 52, 53, 79,
II 80
III 85, 165, 180, 227
IV 28, 100, 195, 282
V 66, 150, 198, 415
VI 15, 291, 413
589, 609
79, 803, 931, 959
réclamation visant les vices ou la non-conformité de I 232
la marchandise III 143
retrait injustifié du— III 185
take or pay clause III 489
validité de la clause compromissoire incluse dans
un— non signé I 139
violation du — I 430
III 100, 185, 282
IV 52, 66, 267
V 53
VI 59, 79, 471
violation d’une loi impérative III 220
IV 7, 112
Voir aussi Ordre public
Répudiation du contrat
Voir aussi les différents types de contrats (contrats de
licence, de distribution, etc.)
cxlviii
i'-ï-rj-j
Contrat d’adhésion
le contrat de distribution n’est pas un — I 199
II 89
Contrat administratif
- concession minière
I 219
- —international
Voir aussi Contrat d’Etat
III 75, 475
Contrat d’affrètement V 97
Contrat d’agence commerciale I 122, 316, 332
II 293
III 452
IV 214, 333
V 141, 629, 797
VI 41, 759, 781, 803
:
aux États-Unis I 204
IV 94
- au Qatar IV 214
- clause d’exclusivité en faveur de l’agent commercial III 100
- clause de résiliation automatique I 204
- concession exclusive aux États-Unis et au Mexique I 185
- concession exclusive en Égypte I 499
- en Belgique IV 333
- en France I 341
- et droit applicable I 123
IV 333, 389
V 743
et nullité pour corruption I 508, 559
IV 561
- paiement de commissions pour vente en dehors du
territoire contractuel II 80
- pour la vente exclusive en Italie de produits d’origine
tunisienne II 318
- qualification par l’arbitre VI 759, 781
- résiliation 11 80
IV 94, 214, 333
V 743
VI 759, 781
- source de confusion dans le public en ce qui concerne
la représentation par suite de l’acquisition par le
mandataire d’une société dans le pays de l’agent
commercial III 100
- transformation d’une concession de vente en une
concession de production I 199
Contrat d’assistance technique II 257
Contrat d’association
cxlix
- dans le cadre d’un projet de construction en Iran II 264
Contrat de commission V 629
- en droit hongrois II 123
Contrat de concession
- d’achat de produits miniers I 218
—
annulation unilatérale d’une par un gouvernement
Voir aussi Contrat d’agence commerciale
I 218
Contrat de concession de vente

Voir Concession
Contrat de construction
- abandon de chantier I 257, 304
II 302
l’acceptation des travaux vaut dédit des défauts
communs IV 192
achèvement des travaux par le maître de l’ouvrage II ISO
application des dispositions du contrat principal dans
les relations avec le sous-traitant I 158
condition de notification immédiate des défauts IV 192
contrat à forfait I 78
cumul des dispositions contractuelles d’un accord
d’association et des conditions du contrat avec le
maître d’ouvrage II 264
d’un complexe portuaire de pêche II 345
d’un gazoduc I 41
d'un hôtel au Moyen Orient II 454
III 152
d’un navire I 59, 355
d’un pont IV 180
d’un ouvrage au Moyen Orient II 352, 533
d’un terminal pour minerai I 358
d’une autoroute au Moyen Orient II 189
d’une centrale nucléaire I 481
d’une route au Yémen II 309, 508
d’une usine I 312
d’une usine clés en main au Maroc II 217, 526
d’une usine pour éléments préfabriqués II 450
d’une verrerie I 486
en Afrique
-construction de certains équipements publics I 542
II 460
-d’un aéroport II 101
- d’un canal en Afrique II 112
- d’un hôtel et d’un centre de conférence IV 192
- d’une route en Afrique I 512
en Arabie Saoudite I 77
II 43, 165, 465
cl
Ti : -ÿ"SSí';¿SSS=;
‘
I .-••ÿ•ÿÿÿ 'Vi /iVA?-
en Égypte
II 32, 69, 320, 495
III 414
- d’un abattoir en Egypte II 180
- d’un village de touristes en Egypte I 125
en Iran
I 162
en Libye
157,304,477,515
I 3, 298, 302, 445,
II 519
- au Pakistan IV 112
- en Union Soviétique I 106
-
et dommages-intérêts forfaitaires I 84
- expulsion du personnel du maître d’oeuvre n 450
-
livraison partielle IV 164
- présence d’explosifs sur le site constitutive d’un
élément de force majeure
—
réorganisation d’un réseau de distribution d’essence
- travaux publics en Espagne
- validité d’une clause d’exonération
1
I
II
158
227
257
IV 164
Voir aussi FIDIC
Contrat de consultance
—
corruption
- demande en paiement de commissions
■
- extorsion
II
IV
II
53
232
53
II 53
-
objet illicite IV 1
- qualification en droit suisse II 53
IV 232
VI 3
Contrat de coproduction de film II 339
Contrat de courtage
- (in)validité d’un— IV 32
V 575
montant des commissions II 53
qualification en droit suisse II 53
V 575
Contrat de distribution V 767, 783
VI 79, 843, 851, 931
autorisation administrative d’exportations parallèles II 123
cessation des activités du distributeur III 199
dommages intérêts pour violation d’un — m 199
IV 150, 415
V 413, 609
VI 79, 851, 931
et contrat d’adhésion II 89
et fusion et acquisition V 3
étendue des obligations du distributeur III 199
garantie implicite de qualité marchande I 23
cli
- pour la vente d’accessoires automobiles aux USA I 23
— pour la vente d’automobiles au Liban
- pour la vente d’équipement d’isolation en France
I
I
31
147
— responsabilité conjointe et solidaire des distributeurs
- vente excédant le maximum du prix contractuel
III
VI
199
79
- violation d’un —
— - en droit anglais
- - en droit espagnol
VI 79
IV 415
-
en droit français III 199
Contrat d’entretien
- d’avions
— de camions
Contrat d’entreprise
VI
I
I
3
230
399
n 274
V 647
Contrat d’État
acte législatif postérieur à la conclusion du contrat I 135
application des principes généraux du droit des III 475
contrats internationaux IV 341
V 513
entreprise étatique I 194, 195, 234
inapplicabilité d’un droit étatique III 475
V 513
Arbitrabilité
Contrat administratif
Contrat de développement III 475
Contrat de financement III 459
Contrat de franchise II 136
Contrat de fourniture et de licence
- annulation I 22
IV 198
- concurrence déloyale I 21, 52
- enregistrement auprès des autorités publiques III 537
— entrée en vigueur
- licéité
III
III
537
537
- pour la fabrication de machines plastiques I 49
- prélèvement d’hypophyses en vue de la fabrication et
de la distribution d’une hormone de croissance III 537
- responsabilité du fabricant en droit français
I 11
- violation VI 59
- non paiement des redevances I 22, 50, 53
-
non-respect de l’obligation de confidentialité I 54
- vente de produits similaires I 50
Contrat de fourniture de longue durée I 503
II 410, 437
clii
’T . .. • -V-'-V-"- ~J.
__ .
__
__
I----- - -:-:-~
Contrat de licence
- autres I 289, 453, 539
V 67
de brevet III 561
IV 445
VI 767
de construction et d’achat de quantités minimum I 278
de marque I 546
II 257, 420
de savoir-faire pour produits pharmaceutiques I 456
et droit applicable I 52
exclusive de savoir-faire I 179
¡II 429
- limitation territoriale VI 59
- paiement des redevances I 28, 49
IV 445
- pour fabrication et vente de machines I 278
- violation du Traité de Rome I 179, 181
Contrat de location VI 95
Contrat de mécénat VI 95
Contrat de représentation
Voir Contrat d’agence commerciale
Contrat de sous traitance
Voir Sous-traitance
Contrat de service d’engineering II 67
Contrat de transfert de know how m 561
- clause d’exclusivité I 179
- violation du Traité de Rome I 179, 181
Voir aussi Contrat de licence
Contrat de transport I 274
III 382
Contrat de transport de gaz naturel III 489
Contrat d’achat/vente
- acceptation des marchandises IV 267
- clause d’inspection des marchandises par un tiers III 513
- conclusion III 401
- conditions générales de l’Association des entreprises
allemandes de construction mécanique III 401
- conformité des marchandises I 232
II 387
IV 267
contraire aux bonnes mœurs I 120
d’acier II 249, 394
d’actions IV 135
VI 135, 789
cliii
d’aluminium I 301
d’échantillons 1 141
d’équipement pour les télécommunications II 27
d’équipements miniers I 429
de bétail I 346
de biens indéfinis 1 164
II 223, 236
V 81
- de bottes de dames I 159
— de camions I 230
IV 522
de chaussures I 462
de contreplaqué I 168
de gaz naturel IV 465
de livraison d’usine ou de fourniture, montage et mise
en service de matériel nécessaire à la réalisation
d’une usine ou d’une installation I 253, 262, 285, 473
de graines de pommes de terre II 142
de maisons préfabriquées I 555
de matériel militaire IV 32
de matériel de travaux publics II 428
de pantalons pour hommes I 374
de produits pétroliers 67, 224, 233, 237,
I 292, 365, 449
II 279
IV 493, 548
de produits alimentaires I 115
de produits d’isolation I 465
de riz I 197
de sel I 231
de turbines I 355
de viande d’âne I 417
de zinc II 371
délais de livraison II 387
droit du pays du vendeur m 315
et garantie d’exécution ii 24
exploitation commerciale d’un équipement avant
réception I 429
livraison tardive IV 440
omission dans la définition des biens vendus 1 144
omission du vendeur et de l’acheteur I 144
portée d'un contrat de vente exclusif III 46
relus d’accepter la marchandise I 116
II 236
IV 267
cliv
.-= . V,
vi
!: '
¡ s:
*
- refus de prendre livraison des navires I 59

résiliation
- - pour force majeure
- - pour modification des circonstances
- - la clause de renégociation du prix ne donne pas droit I 233
automatiquement à la résiliation du contrat II 394
- - d’une confirmation de vente en raison de I 234
réclamations relatives aux livraisons dans le cadre I 56
de contrats antérieurs II 236
- responsabilité du vendeur pour les vices de la chose
vendue I 265, 266
-
en droit français II 387
VI 213
I 265
IV 440
- clause de limitation de— I 266
VI 213
valeur des certificats d’inspection et pouvoir
d’appréciation des arbitres III 513
vente internationale III 512
IV 465
V 15
Voir aussi: Convention de Vienne (11 avril 1980)
Incoterms
Contrefaçon IV 52
Contrôle des changes I 120, 365
IV 445
Contrôle de constitutionnalité par l’arbitre III 336, 577
Convention d’arbitrage
- — conclue au nom d’une société non enregistrée IV 187
- — conclue par échange de télex V 115
- — implicite III 555
- — par référence III 555
IV 373
V 807
absence de compétence de l’arbitre à l’égard d’un
contrat annexe au contrat contenant la — III 282
acte de mission et —
apposition de la signature du sous traitant sur le
III 143
contrat principal III 456

autonomie de la — I 216,218,318,321,
II 475, 521
III 53, 154, 199, 264,
IV 279,352,410,420
V 40, 467, 555, 567,
VI 613
clv
80, 308, 389, 431,
548, 569
107, 115
729, 945
—
autonomie de la dans une garantie bancaire par
rapport au contrat principal I 36
comportement déloyal de l’une des parties à la — III 34
IV 579
conditions de forme
- en droit allemand I 215
IV 187
- en droit autrichien n 352
- en droit français II 274
- en droit suisse II 279, 352, 534
V 249
VI 729, 859
défaut d’existence ou invalidité de la— III 68
VI 789
détermination des parties à l’arbitrage 108, 277
III 94, 119, 455
IV 167, 187, 273,
V 537, 567, 599, 677
VI 41, 729
— signataire
—
effets obligatoires d’une envers une partie non- II
IV
11
308
— effets de l’ordre public national sur uni
internationale III 315
Voir Ordre public
—
- effets sur la de la non-entrée en vigueur du contrat
II 420
- existence et validité de la — 119
IV 229, 249, 273,
V 689, 727
VI 543, 945
et cession de contrat III 555, 600
V 437, 567
VI 311, 729
et clause subsidiaire de prorogation de for II 293
et négociations précontractuelles II 535
IV 548
étendue de la — II 18
ni 46, 315, 577
IV 300, 536
V 67
VI 879, 985
exigence ou non d’un accord spécial à la — II 264
IV 510
VI 795
clvi
_ u J_ ¿ j -r- -ÿ
- ; '.i -
-\j-1:1-2 1
t t
exigence d’un écrit I 155

II 264, 279, 352
V 249, 537
VI 859
—
- extension de la à un contrat accessoire (non) I 473
IV 455
extension de la— à un contrat postérieur (oui)
—
extension de la contenue dans un contrat
d’entreprise aux commandes postérieures
II
II
264
274
groupe de contrats V 677
VI 729
—
incorporation par référence d’une contenue dans les
conditions générales de vente d’une partie II 533
instance judiciaire en violation de la — III 34
IV 94, 119
V 107
VI 871
interprétation III 401, 435, 456
V 155, 609, 689
- est d’interprétation stricte VI 795 , 945
—
- interprétation de la dans un contrat de licence
- interprétation Pro validate
I 242, 425, 474
I 539
I 250, 560
II 361
mesures conservatoires et — III 34
V 363
Voir Mesures provisoires/conservatoires VI 871
- nécessité de nommer l’arbitre dans la— (non) II 320, 400
III 75
novation I 394
III 468
- obligation d’exécuter le contrat en attendant la
décision des arbitres I 536
- opposabilité à un successeur universel et à un ayant
cause I 44, 46, 316, 453
- opposabilité à une personne physique ayant signé au II 380
nom d’une société (non, en l’absence de fraude) IV 569
- opposabilité au dirigeant social non signataire (non) II 400
- opposabilité aux membres d’un groupe de sociétés I 154,261,263,465
n’ayant pas souscrits à la — II 279
III 277
IV 451,474,510,569
V 537
VI 885
—
opposabilité de la au sous traitant III 175, 456
—
opposabilité de la en cas de cession de contrat III
V
555, 600
437
clvii
paraphée mais non signée II 330
pathologique III 435
V 609, 689, 807
VI 795
- Chambre de Commerce Internationale à Genève;
siégeant à Genève I 317, 425, 528
IV 227
VI 871
- Chambre de Commerce Internationale de Zürich I 525
II 180
- Chambre de Commerce de Paris III 435
- autres II 339, 361
- et nullité partielle de la — II 339
- rédaction défectueuse n 53
VI 795
signée
—
- portée de la vis-à-vis d’une partie ne l’ayant pas I 242
II 11, 279,410
III 420, 456
IV 455
V 207, 677, 807
VI 231, 885, 973
—
pouvoir d’un mandataire de conclure une au nom
d’une société II 534
pouvoir d’un agent de change III 68
—
prescription du délai pour contester la validité de la
(non) III 68
principes UNIDROIT V 115
VI 789
recours à des règles anationales pour la preuve de
l’existence de la— II 535
règle matérielle de validité de la — III 456, 468
renonciation à la— ni 468
IV 569
V 107, 363
VI 871, 973
résolution de la —
responsabilité délictuelle
IV 579
III 401, 420
IV 548
V 719, 777
Voir Responsabilité délictuelle VI 879
- responsabilité quasi délictuelle III 420
IV 548
Voir Responsabilité quasi délictuelle
— subrogation I 312
— validité de la— doit, sauf stipulation contraire des
parties, être appréciée en fonction de la volonté des II 265, 330
clviii
ii
parties et des usages conformes aux besoins du

commerce international
—
- validité de la d’après la Convention de New York et
la Convention de Genève de 1961 III 134, 315
- —
validité de la dans un contrat de travail I 306
—
- validité de la prévoyant une option pour le siège de
l’arbitrage II 199
- validité de la — et état de guerre I 36
- —
validité de la et absence de signature du contrat
Voir aussi Contrat, Groupe de sociétés
I 139
Droit applicable à la convention
d’arbitrage
Etat souverain, Prima fade
Convention de Bruxelles du 27 septembre 1968 sur la
compétence judiciaire et l’exécution des décisions en matière I 308, 328
civile et commerciale III 195
Convention européenne du 15 décembre 1958 concernant
l’échange de substances thérapeutiques d’origine humaine ni 537
Convention européenne du 21 avril 1961 (Genève) sur 327, 333, 356,
l’arbitrage commercial international I 401, 415, 535
IV 333
- article I III 136
- article I (2) (a) III 143
- article II (1) III 81
- article IV (1) (a) II 199
- article V(3) II 199
- article VI II 415
- article VI (2) III 137
IV 189
- article VI (2) b II 352
- article VI(4) III 435
Voir Mesure provisoire
- article VII (1) I 186
II 264
III 137
rv 32
- article IX(1) a II 352, 415
Convention de Genève du 19 mai 1956 relative au transport
international de marchandises par route (CMR) V 737
Convention de la Haye du 15 juin 1955 sur la loi applicable
aux ventes à caractère international d’objets mobiliers
corporels
en général I 192, 254, 151
II 409, 606
III 499
dix
IV
article 1(3) I 357
article 2 I 327
article 3 I 119
II 223, 295
III 186, 607
article 3(1) II 394
III 315, 467
- article 3(2) IU 409, 467
- application aux contrats de construction navale (non) I 62
Convention de la Haye du 1er juillet 1964 portant loi I 348
uniforme sur la vente internationale des objets mobiliers m 401, 409
corporels (LUVI) v 115
- article 3 II 236
- article 9(3) II 236
- article 10 I 198
II 236
article 1 1 I 232
V 115
article 39 I 232
II 236
- article 41 H
— article 43
- article 49
H
II
236
236
236
- article 66 II 236
- article 68
— article 74(1)
- article 82
II
II
I
236
394
282
- article 85 II 236, 394
— article 86
- article 88
I 282
I 205, 229, 282
- contravention essentielle au contrat I 198
- dénonciation du défaut de conformité II 236
Convention de La Haye du 14 mars 1978 sur la loi
applicable aux contrats d’intermédiaires et à la II 293
représentation IV 402
Convention de la Haye du 30 octobre 1985 sur la loi
applicable aux contrats de vente internationale des
marchandises III 187
Convention de Lomé V 599
Convention internationale (généralités)
- — d’unification du droit international privé III 409
- — de droit matériel III 409
— —
—
application anticipée d’une
- application des par l’arbitre
III
III
409
409
- prise en considération des— III 409
- règle de valeur universelle des— III 409
clx
s
' '
'i
- - -—
I-- -I - • - ■
-•-T-----:-'- Kí-íT-f:.:- \\. . 7ÿZ-JZZ:-:L

Convention internationale pour l’unification de certaines
règles en matière de connaissement (Règles de La
Haye-Vis by) III 382
Convention de New York du 10 juin 1958 pour la
reconnaissance et l’exécution des sentences arbitrales
étrangères III 409
article I III 136
article II II 32, 410
III 138, 145
IV 373
article 11(2) V 249
article 11(3) II 309, 361, 420
article III II 32
III 447
V 363
article V II 410
IV 373
article V (1) (a) I 396, 472, 475
II 264,330,352,410
III 136, 567
VI 41, 543
article V (1) (d) I 39
II 361
- article V (2) I 498
- article V (2) (b) II 199, 257
- article VI II 300
- article VII II 410
- et dispositions législatives internes contraires II 320
Convention de l’OCDE du 17 décembre 1997 sur la lutte
contre la corruption d’agents publics étrangers dans les
transactions commerciales internationales V 575
Convention de Rome du 19 juin 1980 sur la loi applicable III 452
aux obligations contractuelles VI 893
- article 3 II 295
III 409
VI 893
article 4 295
II 101, 187, 312,
III 315, 409, 622
IV 300, 415, 499
V 229, 737, 783
VI 893
IV 402
article 8(2) VI 893
clxi
—
-
article 10
article 15
m
III
315
409
- article 17 m 197
Convention de Vienne du 23 mai 1969 sur le droit des traités I 434
Convention de Vienne du 11 avril 1980 sur les contrats de
vente internationale de marchandises
— article 1 III
V
442,501,592,606
187
VI 471
article 1(1)(a) IV 440
V 155,229,249, 273
VI 723
article l(l)(b) IV 435, 555
V 15, 341, 383
VI 213,433, 723,881
article 1(2) V 273
article 2 V 249
article 3 III 592
IV 415, 555
V 273
VI 433, 917
article 4 III 501
V 15
article 6 III 501
IV 555
V 249, 273, 383
VI 213, 831
article 7(2) III 501, 592, 606
V 15, 187, 273,413
VI 471, 723
article 8 m 592, 501
IV 435
V 15, 249, 413
VI 213
IV 415, 435
VI 723
article 10 III 592
article 11 V 249, 413
article 14 V 249
article 17 V 413
article 18 II 387
article 19 III 409
V 249
clxii
: i-T
■i

article 23 V 249
i article 25 IV 415, 440
V 127, 229
VI 859
article 26 III 501
V 413
article 27 V 413
article 28 VI 213
article 29 III 592
article 34 V 15
article 35 III 500
article 35(2)(a) V 341
article 36 III 500
article 39 III 500
article 38 II 387
III 409
article 39 II 387
V 383
article 40 II 223
III 409
V 383
article 44 III 592
article 45 V 127
VI 433
article 46 VI 213
article 47 IV 440
V 15
article 49(1)(a) IV 440
V 15, 127
article 49(2) V 127
V 155
Voir Prix
V 413
article 57 III 442
article 58 III 442
clxiii
:
article 59 III 442
articles 61, 62, 64 III 501
article 63 III 501
V 413
article 64 IV 415
V 413
article 67(1) V 155
article 69 III 501
article 71 V 413
V 229
article 74 n 394
III 409, 501
IV 415, 440, 555
V 127, 155, 229, 413
VI 433, 471
article 75 II 399
IV 440
V 229
VI 471, 859
article 76 V 127, 529
VI 471
article 77 III 409, 501, 592
IV 493, 555
VI 471
article 78 443, 592
III 415, 440
IV 155, 187, 229,
V 249, 575
article 79 III 501
V 529
VI 931
article 79(1) n 394
article 80 V 413
VI 433
article 82 V 341
article 84 UI 500, 525
article 85 III 501
article 92 V 229
article 95 III 501
article 100 III 442
article 100 (2) n 394
clxiv
_ _
_TT ..
III 501
V 383
achat de remplacement IV 440
champ d’application juridique de la — 111 501
IV 435, 440
V 383, 669
VI 917, 931
clause pénale III 500
conditions d’application III 409
IV 435, 440
VI 917, 931
conformité des marchandises III 513
V 127, 187
conservation des marchandises III 501
contravention au contrat par l’acheteur III 501, 606
IV 440
VI 859
délai raisonnable pour dénonciation du défaut de
conformité (article 39(1)) III 592
dénonciation du défaut de conformité III 592
dommages intérêts compensatoires III 501
détermination du prix IV 435
en général III 315, 409, 512
exonération III 501
IV 440
livraison tardive IV 440
intérêts moratoires III 443
IV 440
VI 471
- interprétation de la —
- interprétation de la volonté des parties
III 501, 606
III 592
IV 435
VI 831,917, 945
- moyens à la disposition du vendeur III 501
— obligation de limiter les pertes III 501, 592
V 127
VI 471
obligation des cocontractants III 501
VI 859
- obligations de l’acheteur III 443, 501, 606
VI 471
- principes généraux III 501, 606
- principes européens du droit des contrats IV 440
- questions concernant des matières régies par la
Convention et qui ne sont pas expressément tranchées
par celle-ci III 501
clxv
réduction du prix III 592
référence au droit national 501
III 383
V 471, 723, 831,
VI 859, 945
résolution partielle du contrat IV 440
retard de paiement III 606
—
silence de la sur la charge de la preuve
transfert des risques
III 513
III 501
V 127
usages professionnels IV 435
VI 723
valeur de droit universel II 223
III 409
volonté des parties (pour l’application de la
Convention) III 606
Convention de Washington du 18 mars 1965 pour le I 130, 356
règlement des différends relatifs aux investissements entre II 324
États et ressortissants d’autres États (CIRDI) III 75
Coopération
incidence des pratiques de rééchelonnernent des
dettes de la communauté internationale II 428
obligation de— des parties I 276, 279, 373
II 302, 371, 428
III 420
Voir aussi Bonne foi
Corée
code civil coréen (article 108) IV 431
droit coréen applicable à un contrat de vente I 165
droit de la concurrence coréen I 164, 165
loi sur le droit international privé du 15 janvier 1962 m 327
Corruption
absence de remboursement des frais normaux de
défense à la partie qui participe à un contrat illégal m 239
commissions occultes ni 239
V 575
- contrat fictif IV 431
- contrat simulé III 220
Voir Contrat
— dans un contrat de consultance II
IV
53
561
VI 3
en droit coréen IV 431
VI 3
en droit iranien I 509
clxvi
- •
- v y ,-r-
en droit suisse I 560

V 575
- enrichissement sans cause VI 3
- extortion 53
—nullité d’un contrat attentatoire aux bonnes moeurs en
droit suisse
II
III 239
- paiement en vertu d’un contrat nul et non avenu III 220
VI 3
preuve de la — III 220
IV 32, 431, 561
V 575
VI 831, 945
restitution des paiements VI 3, 831
trafic d’influence III 220, 239
IV 1, 431, 561
- violation des droits d’un tiers constitutive d’une III 239
atteinte aux bonnes moeurs IV 561
Cour de Justice de l’Union européenne
- affaire 56 et 58/64, Consten et Grundig I 183
- affaire 22/78, Hugin V 3
- interprétation préjudicielle de la— I 342
Cour internationale de Justice
estoppel VI 893
Coutume internationale II 319
Crédit documentaire
- délai d’examen des documents par la banque
émettrice I 335
- injonction de non paiement donnée par l’ordonnateur
du crédit à la banque émettrice I 335
— —
le retard dans l’ouverture du proroge le délai dans
lequel la marchandise doit être livrée I 374
— vendeur de résilier le contrat
—
le retard dans l’ouverture du ne donne pas droit au
I 197
- retard dans la confirmation du — par la banque
émettrice I 555
- vérification des documents par les banques I 335
Voir aussi Règles et Usances Uniformes de
la CCI relatives aux Crédits Documentaires
Crédit fournisseur II 428
Culpa in contrahendo I 144, 296
II 370, 437
V 711
VI 135, 859
clxvii
1
D
Demande
—
amendement de la autorisé si envisagé dans la
demande d’arbitrage n 18, 180
consécutive à un événement de force majeure I 234
non-conformité des marchandises I 232
non forclusion de la
recevabilité
— IV 80
IV 341
V 599, 711
VI 41
recevabilité d'une demande fondée sur la loi RICO III 336
renonciation III 336
Voir aussi Renonciation VI 135
Demande nouvelle
262, 454, .
I 523
II 279
IV 32, 164
V 703, 807
VI 879, 905
- de 1975: articles 5 et 16
Dévaluation
de la Peseta espagnole I 199, 201
IV 135
de la Roupie indienne I 312
du Dollar américain pour l’évaluation des dommages
intérêts 1 74, 75, 369
Différend II 497
- critères de l’internationalité du litige ni 435
- continuation de l’exécution du contrat en dépit de
— —
l’existence d’un II 24
— notion de
Voir FIDIC
II 495
Discrimination raciale I 230

Dommages-intérêts
Voir Préjudice
Droit anational
Voir Normes anationales
Droit applicable à la convention d’arbitrage
- application de la Lex fort II 180, 279, 534
IV 1
VI 543
application des principes généraux du droit et des I 146
clxviii
[ZLXS.ÍJ.-YkAz-ÿ--2::::; T3LiTGT"Cr™£j : -í.- -ÿ
usages du commerce international II 264, 330, 400

III 467
commune intention des parties en tant que facteur de I 149
rattachement II 53
V 141
VI 973
détermination des sources du— I 466
II 263, 410
- Règlement d’arbitrage de la CCI II 199
- droit allemand I 316
- droit français II 274
z - droit grec I 17
- droit sauvant l’existence de la convention
d’arbitrage III 555
- droit suisse I 474, 527
droit du lieu de conclusion de l’accord II 352
droit applicable au contrat et validité de la convention
d’arbitrage III 195
et arbitrabilité du litige après mise en liquidation
d’une partie à l’arbitrage I 240
et arbitre siégeant à Genève I 43
V 273
et droit applicable au contrat principal, en l’absence
de dispositions particulières II 534
la convention d’arbitrage pour être efficace, doit tirer
sa force de son rattachement à un ordre juridique II 410
la référence au Règlement d’arbitrage de la CCI
donne à l’arbitre, sauf stipulation contraire, le
pouvoir d’apprécier la validité et la portée de la
clause d’arbitrage indépendamment du droit régissant II 264, 330
le contrat V 141
l’expression droit applicable dans un contrat ne
constitue pas un choix du droit applicable à la
convention d’arbitrage mais au contrat principal II 142
localisation de la convention d’arbitrage dans un
système juridique II 263
loi applicable à la convention d’arbitrage I 17, 146, 316, 534
II 32, 33, 180
III 75, 134, 315, 567
IV 1, 32
V 141, 273
VI 543, 803, 973
loi du siège de l’arbitrage I 216
II 279, 320,352, 410
VI 543
clxix
peut être distinct de celui du contrat principal I 146, 216
II 142, 279, 330
III 567
V 141
— pour déterminer l’arbitrabilité des questions de
concurrence I 549
- prise en compte du lieu de l’arbitrage convenu par les
parties comme élément de localisation de leur volonté II 280
Voir aussi Acte de Mission
Droit applicable au fond
Droit applicable à la procédure
a) Généralités
- absence de rétroactivité des lois III 315
- conflit de lois dans le temps I 365
— contrat de consortium soumis au même droit
applicable que le contrat principal ? I 359
— dans l’arbitrage multipartite I 355
- et contrat d’adhésion II 80
— et contrat d’agence
- dispositions contractuelles et usages du commerce
I 123
II 361
III 623
IV 485
V 81, 647
hiérarchie entre contrats, usages internationaux et I 197
droit national IV 241
hiérarchie entre les dispositions du contrat et le droit
applicable au contrat I 356
les seuls usages du commerce international autrement II 437
dénommés Lex Mercatoria V 609
les usages du commerce international I 189, 190
n 387
- les usages en matière de construction I 304
- localisation du contrat de sous-traitance I 355
- loi des marchés publics de l’État
in
- non applicabilité d’un droit étatique à un contrat III 475
d’État V 513
Voir Contrat d’État
— normes anationales I 189, 257
IV 300, 489
normes du droit I 189
principes du commerce international V 529
principes généraux du droit 78, 190
I 154, 293, 298,
II 302, 330
III 475
IV 489
clxx
Voir Principes généraux du droit V 609
- principes généraux du droit communs aux nations
civilisées i 185, 187
- principes généraux du droit international privé établis
dans les conventions internationales III 185
- principes généraux du droit et de l’équité dans les
transactions internationales I 274
- rattachement du contrat à une loi étatique III 452
IV 300
- rejet de tout droit national V 513
- renvoi I 19
-
la désignation par les parties d’un droit national
s’entend comme renvoi au droit international privé
du droit choisi 1 313
- rôle subsidiaire du renvoi dans l’arbitrage
international I 331
- règles de droit naturel V 513
- stipulations contractuelles contradictoires I 450, 559
b) Choix par les parties
- absence d’indication du— dans le contrat par les 186, 189, 191,
parties 219, 301, 327,
332, 377, 417,
450, 456, 459,
555, 561
I 293, 318, 330,
II 361, 420
IV 489
V 513, 609, 629
parties
—
absence de conflit entre les différents choisis par les III 209
IV 485
accord des parties sur le — en cours de procédure II 298
V 677
choix alternatif dans la clause d’arbitrage I 559
II 293
choix illicite IV 7
choix implicite V 513
VI 893
choix négatif V 513
choix tacite (non) IV 385
choix par référence IV 493
choix contractuel du droit du vendeur III 401
cumul du droit choisi par les parties avec l’ordre
public du lieu d’exécution de la sentence I 454
droit international IV 489
—
effet du choix du au contrat sur la validité de la
clause compromissoire III 195
«justice naturelle» V 513
clxxi
la liberté des parties de choisir la loi applicable est un
principe en droit international privé I 210, 214
le contrat prévoyant à la fois l’application d’un droit
national et les principes généraux du droit et de la
justice I 413
loi d’autonomie I 210
III 134
IV 493
V 15, 77
- validité du choix des parties II 142
- lorsque les parties se sont seulement référées à II 465
quelques dispositions du droit d’un pays spécifique V 629
- règle de conflit choisie par les parties I 31, 52
— sélection d’un système juridique pour interpréter le
choix du droit fait par les parties
II
IV
142
300
c) Choix par les arbitres
- Absence pour l’arbitre international de lex fori I 4
II 263
Application combinée d’un système juridique
national et de la Lex Mercatoria I 415
Application cumulative de la loi du vendeur, de
l’acheteur et du lieu de l’arbitrage II 249
Application cumulative de plusieurs droits matériels I 12, 332
— Attente légitime des parties

II
II
IV
53, 249, 361
293, 361
474
V 513
Choix d’indices de rattachement
- centre de gravité 119, 167, 457,
I 487, 491
II 53
m 452, 467, 567
- convergence d’indices de localization I 254
IV 385
- cumul d’indices de rattachement III 567
- évaluation des différents indices de rattachement U 293
- langue du contrat I 14
V 513
- monnaie de compte et de paiement I 14
- siège de la CCI à Paris I 264
- l’intention implicite ou supposée des parties I 187, 302, 402
- le lieu de l’arbitrage I 302, 418, 461
II 361,410
- le lieu de conclusion du contrat I 192, 410
II 394
IV 385
clxxii
s-i
- le lieu d’exécution du contrat 5, 15, 32, 52, 186,

1 463
II 67
III 68, 148
IV 385
-- lele lieu d’exécution des obligations du vendeur
lieu de livraison des équipements
I 254
I 254
- le lieu de montage des équipements I 254
- le lieu de mise en route des équipements I 254
- le lieu où s’effectue l’assistance technique I 254
- le lieu de résidence des parties
- le lieu de résidence du débiteur de la prestation
I 17, 192, 463
caractéristique II 67, 223, 293
III 622
V 187
Voir Convention de Rome
- le lieu de réalisation de travaux publics I
II 258
410
- l’objet
la nationalité de l’arbitre choisi par les parties I 418
- du contrat I 192
- l’organisation internationale partie à l’arbitrage I 190
- les prestations caractéristiques du Contrat I 358
V 673, 783
- la référence à l’arbitrage international est un indice
en faveur de l’application des norms anationales I 17, 52, 190, 382
IV 321, 527
V 513
- la relation la plus étroite 88, 170, 192, 303,
I 459, 487
II 223
III 309
IV 385, 536
V 187, 673
VI 179
- relation raisonnable entre le litige et le droit choisi I 188
- rendu frontière I 14
- le siège du consortium I 359
Choix des règles de conflit de lois
- application cumulative des différents systèmes de
conflit de lois I 199,410, 460
IV 300
- application cumulative des systèmes de conflits de
lois intéressés au litige I 186, 254, 491
II 249, 293,318, 394
III 309,315, 500,
clxxiii
555, 606
V 783
- application directe d’une règle de conflit de lois III 622
- droit français I 170
- siège de l’arbitrage 16, 18, 19, 43,62,
I 67, 332, 459
II 136
V 187
- comparaison entre les règles de conflit de lois ayant
les liens les plus étroits avec le différend III 315
IV 300
- convergence des règles de conflits de lois du
domicile des parties I 17
- l’arbitre se dispense de faire le choix de règles de
conflit de lois I 305, 463, 487
V 529, 609
Voir aussi Voie directe
- l’arbitre peut écarter les règles de conflit du for I 118,491
-l’arbitre n’est pas tenu de se référer à un système de
conflit de lois national particulier 1 358
II 264
III 567, 622
- dans un contrat d’agence commerciale I 123
- dans un contrat de construction I 107
- dans un contrat de distribution I 31
V 609, 783
- dans un contrat de licence I 52
- dans un contrat de construction navale I 61
- liberté de Farbitre d’appliquer la règle de conflit
qu’il estime appropriée I 301, 332, 472
n 293, 318
- liberté de l’arbitre de ne pas se référer à un système
de conflit de lois étatique I 352
III 567
- liberté de l’arbitre de se forger une règle de conflit
de lois de son cru I 463
- localisation directe I 418,459, 462,487
- principes généralement reconnus en matière de
conflit de lois I 264, 334
II 292
III 622
- prise en compte des Conventions internationales II 294, 394
V 187
- Qui eligit judicem eligit ius I 332
- règle de conflit universelle I 209
-systèmes
tendance majoritaire : application cumulative des
généraux du droit international privé; voie
directe I 360, 457
clxxiv
choix limité à un droit national (non) 1 188
droit validant le contrat I 560
II 53, 293
III 555
exclusion de toute loi nationale I 258
V 97
- fonction supplétive des règles de droit applicables III 475, 623
- garantie bancaire
I 88, 386
V 81
groupe multinational de sociétés I 262
intention des parties présumée par l’arbitre I 192, 331
II 142
V 513
VI 179, 231, 893
—
- la détermination du n’cst pas indispensable pour
apprécier la rupture d’un contrat I 305, 555
—
- la détermination du n’est pas nécessaire lorsque les
principes généraux d’interprétation des contrats et les
règles de bon sens communs aux pays civilisés
peuvent être appliqués I 208, 556
- la détermination du - n’est pas nécessaire lorsque le
différend peut être résolu sur la seule base du contrat I 21
- la détermination du droit applicable n’est pas
nécessaire lorsque les parties sont silencieuses sur la I 78
question V 677
- la détermination du droit applicable n’est pas
nécessaire lorsque les arbitres sont amiables
compositeurs I 78
- la loi du for I 186
- la loi successorale IV 536
- le droit de l’acheteur III 467
- le droit du vendeur ■I 140,318,361,394
II 223
V 647
—
-
Lex fori
Lex loci delicti
1 186
I 359
- Lex loci solutionis I 347
- pouvoir discrétionnaire des arbitres quant au choix de 186, 188, 302,
la loi applicable I 327,401,463,491
III 452
- principes UMDROIT (à titre subsidiaire) V 115,513, 609
- voie directe 109, 301, 332,
334, 352, 401,
I 457, 462, 486
III 452, 462, 555
V 513,609, 783
clxxv
d) Intervention de l’ordre public ou d’une loi
étrangère au contrat
- conditions de la collaboration de l’arbitre à
l’application d’une loi étrangère à l’ordre juridique
du contrat in 577
- dispositions impératives d’un droit étranger à la lex JJJ 405
contractus IV . 402, 543
VI 843
lois de police III 405, 452
IV 474, 543
V 703
normes d’application immédiate 134, 475, 577
III 32, 389, 402, 474,
IV 516
compatibilité avec l’ordre public international I 271
II 437
- caractère impératif de la loi belge du 27 juillet 1961
sur les accords de distribution exclusive (non) III 195
Voir aussi Amiable compositeur
Amiable composition
Contrat d’État
Convention internationale
Lex Mercatoria
Principes généraux du droit
- de 1975: articles 13(3), 13(5)
- de 1998: articles 17(1), 17(2)
Usages du commerce international
Droit applicable à la procédure II 361
— absence de choix des parties I 3, 400
II 69
application du droit d’un pays étranger au siège du
tribunal arbitral I 45
Concordat Suisse sur l’Arbitrage I 69, 400
droit du Canton de Genève I 40, 69, 207, 399
II 11
droit du Canton de Zürich II 180
droit du siège de l’arbitre I 3, 12, 207, 347
V 335
droit français de l’arbitrage international I 170
et constitution du tribunal arbitral II 33
et respect de l’ordre public du lieu de l’arbitrage et du
lieu d’exécution de la sentence I 346
clxxvi
•• '• ' • -- -
- l’expression “droit applicable” dans un contrat ne

constitue pas un choix du droit applicable à la
procédure mais du droit applicable au fond II 142
- lorsque la question n’est pas réglée par le Règlement
CCI I 52
- Règlement CCI pour autant qu’il n’est pas contraire
aux règles d’arbitrage iraniennes ou françaises II 264
; Droit étranger
considéré comme un élément de fait en droit
international privé anglais II 136
Droit européen
directive n° 86/653/CEE du 18 décembre 1986
concernant les agents commerciaux indépendants V 743
- Libre prestation des services dans l’Union
européenne VI 135
- Règlement n° 1346/2000 relatif aux procédures
d’insolvabilité VI 79
- Règlement nc 44/2001 VI 79
- Règlement n° 139/2004 du 20 janvier 2004 VI 543
Voir aussi Traité CEE (Traité de Rome)
Droit international public I 45,46
Droit public 47, 165
I
Égypte (République Arabe d’ — )

- arbitrage interne et international II 400
— Code civil
-article 19 II 395
- article 22 II 320
- article 28 II 320
- article 152 V 537
- article 221 I 135, 136
III 181
- article 279 II 69
clxxvii
l
- article 300 U 69
- article 302 II 69
- article 702 n 69
Code de commerce
- article 59 U 69
- article 64 II 69
Code de procédure civile et commerciale n 32
- article 502 n 180, 320, 400
m 75, 77
III 78
- exigence de la désignation de l’arbitre dans la clause
d’arbitrage II 180, 400
- la validité de la procédure arbitrale dépend de la loi
du pays où cette procédure doit avoir lieu II 400
- Loi 43 de 1974 sur les investissements étrangers I 127, 129, 131
- Loi 47 de 1972 sur l’organisation du Conseil d’Etat III 78
- validité de la clause d’arbitrage II 32
Entreprise commune
- accord de vote entre actionnaires II 199
- demande d’arbitrage formée par les partenaires
d’une —
- distribution des dividendes
II 69
II 199
- en droit égyptien II 69
- entre États souverains pour le développement de
l’industrie de l’armement II 11
- nature juridique II 69
- pour la culture de produits agricoles VI 179
- pour la fabrication et la vente de produits
pétrochimiques II 199
- pour la construction et la location d’un hôtel rv 7
- pour le développement et la commercialisation de
logiciels IV 52
Emirats Arabes Unis II 11
IV 569
Équité II 11
III 613
VI 811
- et amiable composition I 20, 74, 97
Ex aequo et bono
Erreur
clxxviii
3SSs;-22
Voir Vice du consentement

Espagne
- autonomie de la convention d'arbitrage I 199
- Code civil II 199, 420
- - article 1102 VI 95
- - article 11 07 VI 95
- Constitution espagnole II 205
- droit espagnol applicable au fond
- réalisation d’une usine
— droit espagnol et résiliation unilatérale d’un contrat
- loi sur l’arbitrage du 22 décembre 1953
I
I
II
254
200
201, 205
- loi sur l’organisation judiciaire II 206
- mauvaise foi VI 95
- validité d’une convention d’arbitrage prévoyant une
option pour le siège de l’arbitrage II 199
Estoppel II 21
III 86, 239, 336
VI 739,893,931,973
État souverain
caution d’une transaction commerciale I 8
—
décret d’un discriminatoire à l’encontre d’une
partie à l’arbitrage I 44
et aptitude à compromettre I 10, 131, 251
VI 945
- et effet obligatoire d’un accord n’ayant pas obtenu I 434
l’approbation constitutionnellement prévue II 264
- et fiscalité IV 241
- et règle pacta sunt servanda 1 10
- immunité 1 9,126,131,247
II 11
IV 455
V 167
- n'a pas sa place en matière d’arbitrage international I 252
- ne s’applique que dans les relations entre les
tribunaux d’un État et ceux d’un autre État I 248
I 248
- choix du droit applicable pour trancher 1’— I 251
- en droit anglais I 48
- en droit français I 9
- en droit suédois I 251
- en droit suisse
- renonciation par la conclusion d’une convention I 126, 131
d’arbitrage II 11
organisation supranationale II 11
clxxix
Voir aussi Contrat d’État
Etats-Unis d’Amérique
- Hart-Scott-Rodino Antitrust Improvement Act (1976) VI 749
- loi américaine sur la lutte contre la corruption
(Foreign Corrupt Practices Act) V 575
Évaluation du préjudice
Voir Préjudice
Ex aequo et bono
- définition I 98, 502
— —
fixation du préjudice par les arbitres amiables
compositeurs
I
IV
227
52
Equité
Exceptio non adimpleti contractus I 106, 111,305,402
III 152
V 797
- et compensation 1 114
Exécution provisoire
- arbitrage international m 447
- droit français III 447
Voir France
loi applicable III 447
pouvoir des arbitres III 447
Expert technique
compétence de l’arbitre et d’une partie pour nommer II 134
III 152, 513
IV 232
V 669
concurrence entre tribunal arbitral et autorité
judiciaire pour la nomination d’un expert I 515
—
évaluation des dommages par 1’ en tant que
condition de paiement d’une garantie d'exécution II 217, 526
expertise et arbitrage IV 533
expertise conventionnelle III 513
force probatoire du rapport d’expert I 286
II 345
V 669
-indépendance de 1’ —
- intervention d’un -comme condition pour appeler une
I 286
garantie n 345
Expropriation
Voir Nationalisation
clxxx
■
- -:--771T •: ••Ci* L::î U\ r. -1
Faillite
compétence de l’arbitre
III 487, 623
IV 308
V 703
Voir Compétence
- condamnation aux dépens (non) III 550
- effets internationaux de la faillite I 239
III 487
VI 79
existence juridique du demandeur en faillite III 152
faillite d’une partie I 530
III 152, 487, 623
IV 308
V 703
VI 79
—
-
interdiction de recourir à l’arbitrage (non)
loi française du 25 janvier 1985
III 622
III 623
- mise en liquidation judiciaire d’une partie en cours 23,41,42,46,47, '
d’instance I 237
III 623
VI 79
- principe de la suspension des poursuites individuelles III 550, 623
V 703
Fait du Prince
- définition I 233
- en droit français I 71
Voir aussi Force Majeure
Favor negotii
- droit applicable au fond II 53
Federation of Civil Engineering Contractors (FCIE) II 495
Fédération internationale des ingénieurs conseils (FIDIC) I 157
- article 1(c) I 545
- article 2.1 I 480
article 34 II 450
article 44 II 189
article 52(5) I 543
II 189, 462
article 56 II 189
article 65 II 450
IV 500
article 67 9, 247, 477, 542
I 3,113,189,309,
II 445,461,465,479
III 86, 495
clxxxi
'
caractère obligatoire de la soumission du différend à
l’ingénieur II 454, 465
conditions générales, 2è édition III 495
V 363
conditions générales, 3è édition III 530
coût pour l’entrepreneur de poursuivre le maître
d’ouvrage III 86
délai pour soumettre une demande d’arbitrage 3, 69, 112, 189,
308, 477, 481,
n 496, 508
III 495
dérogations à l’article 67 II 465
éviction de l’ingénieur remplacé par le personnel du I 542
maître de l’ouvrage II 460
expulsion du personnel de l’entrepreneur U 450
fonction de l’ingénieur I 477, 544
n 3, 445
III 495
- garantie inconditionnelle d’exécution III 530
Voir Garantie
- indépendance de l’ingénieur I 543
II 461
nature des délais de l’article 67 III 495
nature juridique du lien entre l’ingénieur et le maître
de l’ouvrage I 477
nomination de l’ingénieur au regard d’un contrat de
sous traitance III 86
notion de litige ou de différend II 454
III 495
recevabilité d’une demande pour un montant plus
élevé devant les arbitres que devant l’ingénieur II 189
recours direct à l’arbitrage de la CCI sans soumission
préalable à l’ingénieur I 544
renonciation aux conditions de l’article 67 III 495
retards dans l’exécution des travaux III 530
Fiscalité
arbitrabilité III 332
IV 241, 402
Voir Arbitrabilité
- déduction des charges fiscales du tiers III 282
- exemption fiscale III 175
- extension au sous traitant de l’exemption fiscale de
l’entrepreneur principal III 175
- paiement des impôts en droit libyen 3
II
- réserve pour charges fiscales impayées IV 135
clxxxii
iriTi. jisssszizsx'.-u::.-:-
Force majeure
(annulation des) autorisations d’exportation I 26, 233
V 529
- catastrophes naturelles V 155
- conflit armé I 208
- —
critères de la (imprévisibilité, irrésistibilité,
extériorité, insurmontabilité . . .)
194, 224, 237,
I 367, 420
III 3, 537
IV 485, 500
V 97, 637
VI 179, 803, 931
dans un contrat d’achat/vente I 160
défaut du fournisseur constitutif d’une cause de force
majeure pour le vendeur (non) I 160
délai pour porter à l’autre partie connaissance de la
survenance d’un cas de — I 26, 172, 234
VI 931
et contrôle des changes IV 445
V 637
- et évaluation des dommages I 7
- et Lex societatis I 366
- et nationalisation I 7, 23, 194
- et modification des circonstances II 394
- et refus de donner des visas pour des raisons d’ordre
racial I 230
- hostilités entre les gouvernements des deux parties I 195
- interdiction des pouvoirs publics
- de fournir des devises étrangères I 68, 70
- d’exporter I 26
-
de publier 1 28
- interprétation de la clause de — I 366
IV 485
V 637
VI 931
- intervention des autorités de change I 225, 366
- limitée dans le temps I 196
- présence d’explosifs sur le site du chantier I 158
- troubles dans le pays d’exécution du contrat I 6
II 101
IV 500
Voir aussi Frustration
Fait du prince
Frais de l’arbitrage IV 7, 32, 52, 66, 75,
V 94,119,179,214,
VI 267,321,402,573
clxxxiii
15, 341,463, 503,
689, 751, 767,
777, 807
3, 41, 59, 79, 95,
135, 179, 231,
311, 329, 345,
433, 461,471,
519, 543, 749,
781, 811, 851,
885, 917, 945, 973
condamnation d’une partie à régler sa part de la V 545, 727
provision VI 843
en cas de rejet des demandes/moyens de défense I 67
V 751
VI 135, 749
et arbitre amiable compositeur II 43
V 553
et procédure judiciaire connexe III 46, 68
VI 543
incidence du comportement des parties sur les IV 321,402, 527, 579
V
— quand l’arbitre se déclare incompétent
- remboursement des frais de défense afférents à une
I
463, 751
305, 397
procédure judiciaire connexe III 46

- de 1998: articles 30 et 31
Honoraires des arbitres
Jonction de demandes
France
Code du travail
- article L.517-1 I 306
VI 781
Code civil
-article 1 108 III 561
VI 831
VI 831
V 663, 807
VI 59, 759, 931, 959
VI 985
III 206
clxxxiv
-
w-y.- :• j. ■: — z:-'
l
I'*

- article 1 147 V 637
- article 1 149 III 181, 204
VI 851
- article 1 150 III 181, 204
VI 59
- article 1153 73
I 146, 206, 207,
III 306, 518
VI 917
- article 1157 VI 795, 851
- article 1275 III 303, 304
V 807
-article 1458 V 807
-article 1652 I 73
-article 1709 V 589
-article 1780 V 589
-article 1838 V 589
-article 2037 V 663
Code de commerce
Code de procédure civile (Ancien)
-article 70 II 223
- article!455 II 33
clxxxv
- article L. 134.1 VI 759
- article L. 134.12 VI 759
- article L, 134.13 VI 759
- article L. 441.6 VI 931
- article L. 442.6.1 VI 985
- article L. 442.6.1.5 VI 959, 985
- article L. 442.6.5 VI 851, 931
Code des assurances
-
article L1 11-1 III 534
-article L113-9 III 552
- article L121-12 m 534
- contrat de construction navale I 61, 62
- décret du 12 mai 1981 sur l’arbitrage international I 153
— définition de la force majeure en droit français I 69, 70
- droit français applicable au fond I 11, 57
— droit français et calcul du préjudice en cas de refus de
prendre livraison I 281
- droit français et délai de réclamation pour vices de
qualité I 232
- droit français et mesures conservatoires I 286
- droit fiançais et nullité de la clause compromissoire
dans un contrat de travail I 306
- droit fiançais et principe Rebus sic stantibus î 297
- droit international privé I 12
- loi du 24 juillet 1966 sur les sociétés
-
article 124 I 322
- article 126 I 322
- article 128 I 322
Nouveau Code de Procédure Civile
- article 48 IV 308
- article 461 III 525, 527
- article 462 m 527
- article 472 m 448
- article 517 m 449
- article 696 III 307, 308
clxxxvi
i

- article 1466 111 436
- article 1475
- article 1476
III 333, 525
VI 739
V 413
IV 308
- article 1493 HI 319
- article 1495 III 319, 525
III 467, 513, 622
V 383
VI 739
- article 1502 V 327, 703
- Ordonnance du 30 juin 1945 sur Loi du 25 janvier
1985 et Décret du 27 décembre 1985 III 623
- ordre public international I 152
V 327
Fraude V 727
- en exerçant son pouvoir modérateur, l’amiable
compositeur ne peut se rendre complice d’une
— —
- en l’absence de , la signature d’un contrat par une
II 380
personne physique au nom d’une société ne rend pas

la clause compromissoire opposable à cette personne II 380
- utilisation d’un faux document pour obtenir la
réalisation d’un crédit documentaire I 337
Fraus omnia corrumpit I 340
Frustration
attaques du personnel du maître d’œuvre et prise
d’otages II 101, 113
augmentation du prix de l’acier II 249
définition I 208, 212
—
doctrine de en droit anglais
en droit yougoslave
I 3
II 249
et force majeure I 208, 299
et principe Rebus sic stantibus I 3, 208, 212, 299
II 394
- évaluation du préjudice en droit anglais II 101, 113
Voir aussi Force majeure
clxxxvii
G
Garantie bancaire
appel abusif d’une — I 86, 482, 511
n 345, 400
- appel en cours d’arbitrage I 162, 482, 512
— autonomie de la clause compromissoire dans une
par rapport au contrat principal
—
I 36
- Advance payment guarantee II 43
—compétence de l’arbitre pour décider de la nullité
d’une— I 481
—compétence de l’arbitre pour se prononcer sur la
—
validité d’une entre le donneur d’ordre et le
bénéficiaire II 400
- compétence de l’arbitre pour suspendre l’appel
d’uni I 483
- conditions pour l’exécution d’une
- droit applicable
— 1 87
I 87
V 81
—
effets d’une après expiration du contrat principal
émise par une banque belge
I 83
I 87
émise par une banque pakistanaise I 3
—
l’extinction d’une ne prive pas l’acheteur de
réclamer pénalités pour retard dans la livraison I 423
et frustration I 4
garantie bancaire documentaire, indépendante de
l’obligation principale et subordonnée à la seule
production de documents II 345
—
indépendance de la par rapport aux obligations
découlant du contrat de base
I 424
II 400
libération de la — II 3
—
nature de la I 87, 386, 485
V 81
obligation du garant
payable à première demande
— IV 32
I 89, 386
II 400
V 81
pour paiement de pénalités contractuelles I 423
refus par la banque de payer I 87
V 81
Risk exposure Bank Guarantee I 83, 87
II 43
- signification d’une garantie inconditionnelle I 90
Garantie de bonne lin
- caution accessoire ou garantie indépendante II 345, 526
Garantie contractuelle
clxxxviii
— --- :uJ _. íwiÿr-ÿíT'Vrr-i-viÿ-z :- -y -:-rz.T :n¿Z£zÿ
Voir Garantie bancaire

Garantie de performance/d’exécution V 363
- caution II 217, 528
- clause d’indemnité forfaitaire pour retard III 530
V 15
- obligation de rapporter le montant des garanties III 530
- rapport d’expertise comme condition pour le
paiement de la — II 217, 526
i
- remboursement de la —
- signification des mots “sans réserve” dans la—
III 152
I 536
II 24
—
- validité de la postérieurement à la résiliation du
contrat 1 76
Voir aussi FIDIC
Ghana I 171
Grèce
Code civil
- article 26 I 17
-
article 179 IV 198
-
article 198 IV 198
-
article 281 IV 198
-
article 288 IV 241
-
article 388 IV 241
-
article 224 IV 241
droit applicable à la convention d’arbitrage I 17
Groupe de sociétés
concept I 258, 263, 470
IV 569
V 537
VI 729
et choix du droit applicable I 257
II 279
IV 474
groupe multinational I 258, 263
et levée du voile social IV 119, 474, 510
V 537, 719
- et opposabilité à la société mère d’une clause I 154
compromissoire signée par une filiale IV 510
— et opposabilité d’une clause compromissoire au II 380
clxxxix
dirigeant social signataire (non, en l’absence de
fraude) IV 569
et opposabilité d’une clause compromissoire aux 146, 151, 261,
membres non signataires d’un— 263, 465
I 279
II 277, 420, 429
ni 119, 451,474,
IV 510, 569
V 537
VI 729
- les sociétés du groupe sont tenues ensemble et
solidairement des dettes dont elles ont directement ou II 361
indirectement profité VI 905
Guerre
- définition de l’état de —
- et validité de la convention d’arbitrage
I
I
34, 35, 36
36
Voir aussi Hostilités
Hardship
caractéristiques des clauses de — I 235, 275
II 437
IV 321, 465, 527
et principes UN1DROIT IV 500
Hongrie
Code
civil
- article 339 U 123
- article 355 H 123
contrat de commission II 123
Honoraires des arbitres
- règlement de la TVA V 761
Hostilités
annulation d’un crédit suite au début des
dans le pays d’exécution du contrat
— I 6
I 6
II 101
entre les gouvernements des deux parties
contractantes constitutif de force majeure 1 195
cxc
7îf-ï.riV.--‘
- et état de guerre I 35
- et force majeure I 6, 208
- modification de la législation sur l’immigration II 454
- prise en otage du personnel II 101, 112
- sécurité du personnel employé 6, 195
I 101
II
H
t.:
Immunité (de juridiction et d’exécution)
Voir Etat souverain
Imprévision IV 321, 527
Incompétence de l’arbitre
—
théorie de 1’ et Lex Mercatoria II 302
—après novation de la clause compromissoire

- contrat de travail
I 394
I 308
- et nullité du contrat principal
I 320
- et répartition des frais d’arbitrage I 309, 397
- exception d’incompétence ou moyen de défense sur
le fond I 320
Incoterms III 512
V 529
clause C&F I 56, 115,417, 451
II 370
clause CAF/C1F I 138
II 371
III 600
clause CFR V 15
clause CPT V 669
clause FCA V 155
clause FOB II 394
IV 522
Inde
- droit applicable au fond I 5
- droit indien applicable à une garantie bancaire I 210
- Indian Contract Act (1872) V 53
IndemnisationVoir Préjudice
Indexation du prix
Voir Prix
Ingénieur
—
cessation des fonctions de 1’ après résiliation du
contrat (non) II 454
pouvoirs et rôle de l’ingénieur dans le cadre des
Conditions FIDIC II 3, 446, 456, 461
cxci
-
maître de l’ouvrage
—
remplacement d’un indépendant par le personnel du
II 462
Voir aussi FIDIC
Injonction
d’un tribunal étatique en vue d’arrêter la procédure I 37
II 309, 508
— d'un tribunal étatique pour interdire l’appel d’une
garantie bancaire I 169
- pouvoir d’injonction des arbitres III 429
Intérêts compensatoires II 371
III 475, 600
Intérêts moratoires
application du taux d’intérêt de la loi de la monnaie I 199
du contrat II 387
IV 32, 415
application du taux d’intérêt légal du droit applicable II 428
au fond III 600
application du taux d’intérêt légal du pays du
créancier I 257
application du taux d’intérêt légal du pays du siège de
l’arbitrage aux sommes allouées dans la sentence, à
partir de celle-ci et jusqu’à leur paiement effectif II 427
composés I 348
II 154
III 459
VI 179
contrat administratif III 75
—
date à partir de laquelle les commencent à courir 330
I 227, 350
II 143, 467, 475,
III 592, 600
V 553
VI 803
et Lex mercatoria II 387
et pouvoirs de l’amiable compositeur I 355
II 43, 227
V 553
fixation du taux 20
249
86, 100, 108, 143,
I 152, 185, 382,
U 443, 468, 513,
III 592, 600
IV 415
V 97, 229,575
VI 179, 803
cxcii
'iT3z; v.--.- r .-..vjTvrr.. 71
intérêt légal en France I 16, 73, 259

III 199
intérêt légal en Suisse I 121
II 180
liberté de l’arbitre pour déterminer le taux des — II 428
III 475, 513, 600
IV 440
V 97, 553
VI 803
- mise en demeure III 600
-
d’un contrat de construction
—
prohibition des selon le droit du pays d’exécution II 112
IV 75
- recevabilité V 575
Voir aussi Usages du commerce international
Internationalité du litige
- critères III 435
Interprétation de la convention d’arbitrage
- choix du droit applicable dans une convention
d’arbitrage I 97
— commune intention des parties I 529
II 361
- grammaticale I 526
- et immunité d’État I 251
- restrictive I 525
Voir Ut res mugis valeat quam pereat II 339
Droit applicable à la convention d’arbitrage
Intervention
--
Voir Arbitrage multipartite
Iran
Constitution de la République Islamique d’ article 139 II 267
- contrat de vente conclu en — I 191
— droit iranien applicable au fond
- droit iranien et corruption
I
I
191
509
Irak
Code
civil
Italie
Code civil
- article 25 I 186
- article 1223 1 12
cxciii
- article 1453 I 12
III 29, 32
V 413
V 719
- article 806 I 547
III 571
IV 389
- article 808 V 273
VI 803
droit italien applicable à un contrat de concession
exclusive I 185
droit italien de la concurrence VI 543
droit italien et amiable composition I 502
droit italien et iàillite I 531
droit italien et l’adage Rebus sic stantibus I 202
droit italien et renvoi I 189
droit italien et résiliation unilatérale d’un contrat I 199
Loi de droit international privé (article 1) 273
V
Jonction de demandes
conditions posées par l'article 13 du Règlement intérieur j¡¡ 567
de la Cour Internationale d’ Arbitrage IV 94, 461
V 545
cxciv
,1
Voir Règlement d’arbitrage CCI:

-de 1975: Règlement intérieur de la
Cour (article 13)
- de 1998: article 4(6)
- frais de l’arbitrage III 209
V 545
- nécessité d’une même identité de parties et de III 567
l’existence d’une même relation juridique IV 461
Voir aussi Procédure arbitrale
Jordanie
Arbitration Act (2001), articles 6 et 12 V 363
Code civil
-article 20(1) III 328
Code de procédure civile V 363
Loi No. 35 de 1983 sur le commerce maritime 317
III
Koweït
Code civil
-article 453(1) 497
III
Lettre de crédit I 116

III 40, 185
V 15, 413
VI 329, 471
Lexfori de l’arbitre international I 4, 187, 209,303
II 136
Lex loci solutionis
- et conflit avec le droit applicable au contrat I 211
Lex loci contractus
Lex mercatoria 191,268, 272,
I 291, 303, 371
III 309, 315
IV 445, 474, 489
V 727, 751
VI 329, 811, 945
cxcv
contenu de la — II 437
IV 489
VI 945
définition I 255, 260, 274
II 437
IV 489
définition des principes d’ordre public de la — I 385
—
définition des règles matérielles de la
et application des usages du commerce international
I
I
384
228
II 298, 387, 437
et lois de police II 437
et ordre public international II 298, 302
VI 945
et application des principes généraux du droit I 435
n 302
IV 489
VI 329, 811
- et théorie de l’imprévision II 302
- exclusion de la -dés lors qu’une volonté claire des
parties n’a pas écarté l’application d’un droit national II 318
—
- exclusion de la par la règle de conflit III 452
—
- la équivaut les principes généraux et communs du
droit
1 401
n 298
- la— exclut l’adage Rebus sic stantibus I 297
—
- la ne contient pas de règles aussi détaillées que
celles relatives aux taux d’intérêts II 387
—
- la s’impose aux contrats conclus par des groupes
multinationaux de sociétés I 260
- les arbitres n’ont pas besoin des pouvoirs d’amiables I 282
compositeurs pour faire application de la ——
indication insuffisante du choix en faveur de la
II
IV
330
300
- normes impératives de la —
- notion de contrat pleinement international
I 354
III 452
- obligation de minimiser le dommage III 459
- pour combler les lacunes d’un droit national II 298, 302
- principe de confidentialité des discussions lors d’une
tentative de règlement amiable III 512
- principe général de bonne foi III 512
IV 489
V 609, 623
VI 811,945
principes et éléments fondamentaux de la — 256, 275, 279
281, 296, 297
I 416, 449
IV 489
VI 811
cxcvi
T z.:zrz~
- —
relation entre la , l’amiable composition et les
droits nationaux
I 382, 407
-
-
rôle supplétif de la —
et contrat de construction
III 452, 606
—
-
et droit libyen
et compensation
II
II
I
465
521
113
- Concordat suisse
—
-
et contrat d’agence commerciale
et contrat de vente
I
I
I 110
124
170
- —
application de la cumulée avec les pouvoirs
d’amiable compositeur de l’arbitre II 43
- ne peut être présumée en l’absence d’accord entre les
parties II 67
- exclusion de tout droit national I 381
Bonne foi
Pacta sunt servanda
Principes généraux du droit
Principes de portée internationale
Lex Rei Sitae I 400
Lex Societatis
consortium I 361
et entreprise publique I 371
et pouvoir des organes sociaux I 322
Libye
boycott d’Israël I 62
Code civil
- article 5 II 306
- article 147 III 6
- article 224 II 523, 307
III 181
- article 227 III 27,27, 181
- article 360 III 6
IV 485
- article 657 II 306, 523
- article 699 II 3
Code de procédure civile et commerciale II 3
—
contrat de construction en I
II
157
3, 298, 302, 521
cxcvii
droit libyen et Lex mercatoria U 298, 302, 521
Loi pétrolière de 1955 m 14
Liban
Code des obligations
- article 124
- article 248
I 32
I 32
droit libanais applicable à un contrat de distribution
d’automobiles I 32
droit libanais applicable à un contrat d’agence
commerciale III 452
Licence
Voir Contrat de Licence
Lieu de l’arbitrage
— détermination du —
- et localisation de la clause compromissoire dans un
II 80
système juridique II 263, 279

- et ordre public égyptien
II 32
- validité d’une clause prévoyant une option dans les
— II 199

Litispendance II 54, 180
conflit de compétence judiciaire et arbitrale 12, 37
I 154, 180, 361,
II 420, 508
III 435, 468
VI 905
droit applicable à l’exception d« III 435, 468
identité de parties et de cause I 13, 38
—
il ne saurait y avoir de dès lors qu’une clause
compromissoire est déclarée valable puisqu’elle a
précisément pour objet d’écarter la compétence des
juridictions ordinaires II 420
ne peut surgir qu’entre deux juridictions d’un même
État ou de deux États différents n 361
ni les actions pénales, ni les procédures tendant à
l’obtention de mesures provisoires ou conservatoires
ne peuvent être considérées comme contraires à la il 361
convention d’arbitrage VI 871
sursis à statuer II 361
III 435
Liquidated damages I 380
Voir aussi Pénalités contractuelles
Locus régit actum n 535
Locus standi
cxcviii
:.7r: -r-_- _v_-_
'k
y
du demandeur II 69
Lois de police
étrangères à la lex contractus III 405
VI 959
applicable par l’arbitre siégeant dans un autre pays I 45
—
application (d’office) des de la lex contractus II 420
IV 7, 112
V 703, 783
et contradiction avec la loi choisie par les parties I 215
effet extraterritorial d’une loi nationale différente de
celle du siège de l’arbitrage I 45
loi RICO III 577
IV 474
- monétaires I 314
- et taux d’intérêt contractuel II 428
Loi modèle de la C.N.U.D.C.I. I 463
II 263
V 249, 363
Luxembourg
Code civil
-article 1116 VI 135
- article 1383 135
VI
M
Mesures provisoires / Conservatoires
- absence d’impérium III 513
- compétence du juge des référés III 435
- conditions d’octroi V 315, 327
- Convention de Genève de 1961 III 435
Voir Convention européenne du 21 avril 1961
- et arbitrage I 105, 285, 399
V 107,315, 327, 659
VI 871, 959
et garantie bancaire I 161,484
cxcix
II 300
l’action en justice ne vaut pas renonciation à la clause I 515
arbitrale II 300, 361
V 107
Voir Convention d’arbitrage VI 871
- pouvoir de l’arbitre d’ordonner des — I 105, 399
n 300, 361
III 34, 513, 613
V 315, 327, 599,659
VI 959
pouvoir de l’arbitre de rendre exécutoire une décision n 300
d’une juridiction étatique (non) in 513
recommandation des arbitres aux parties de s’abstenir
de toute action ayant pour conséquence d’aggraver le I 161,484
différend V 315
recevabilité V 599
séquestre I 530
Mandat
— apparent II 80, 352, 535
V 677
— de représentation des parties à l’arbitrage n 69
preuve V 677
pour signer une convention d’arbitrage II 352, 533
Mise en demeure
du débiteur d’une obligation de donner en droit
français I 57, 58
non-conformité de la marchandise d’après la
Convention de La Haye de 1964 O 236
pour la résiliation du contrat I 54
V 609, 629
— télégramme
Modification des circonstances
I
VI
54
95
- augmentation des prix du pétrole I 293
- augmentation du prix I 297
II 302, 394
changement de la réglementation sur l’immigration II 450
et effets en droit français I 298
obligation contractuelle de renégocier de bonne foi IV 241
renouvellement du permis de séjour des travailleurs
étrangers II 450
Mouaco
- Loi n° 490 IV 7
Monnaie étrangère
condamnation dans unt -par rapport au lieu de
l’arbitrage I 206
et fixation du préjudice I 329
cc
I
- l’indemnité compensatrice d’un préjudice doit être I 204, 326

payée dans la monnaie où ce préjudice est subi El 371
- monnaie de paiement II 3
- taux de conversion 259
I
Nationalisation
de sources de matières premières I 194, 237
et force majeure I 7, 24
r< Navire
retard dans le chargement I 30
refus de prendre livraison I 59
Ne bis in idem I 513
Nemo auditur turpitudinem suant allegans I 510
V 727
Voir aussi Estoppel VI 811, 973
New York (État de)
- Code de commerce uniforme
- section 1-203 111 50
- droit applicable au fond II 18
- Loi sur l’organisation judiciaire (Sect. 27) III 65
- New York Civil Practice Law and Regulations
-
section 5004 III 67
-
section 7503(c) III 71
Nomination d’arbitre
- caractère régulier de la —
confiée à une autorité autre que la CCI
I 8
-
I 247
- dans un arbitrage multipartite II 11, 495
- droit applicable II 33
- droit pour une partie de désigner un arbitre dans un
arbitrage multipartite II 495
- non respect de la procédure contractuelle I 247
- par la CCI en cas de défaillance de l’autorité de
nomination I 8
- refus par l’autorité habilitée à désigner un arbitre de
nommer cet arbitre 1 247
Non adimpleti contractus I 141,158,305,402
Normes anationales
- la bonne foi est un principe général anational 352, 535
- définition des — I 189, 190, 191
II 437
cci
- le défaut de choix par les parties d’un droit national
est un indice en faveur de l’application de —
- l’obligation du créancier de minimiser ses pertes
n 330
apparaît comme une règle matérielle anationale I 229, 236

- la référence à l’arbitrage institutionnel international
est un indice en faveur de l’application de
- et droit applicable à la clause d’arbitrage
— I 382
II 534
- dans le commerce international II 535
Novation III 299, 592
de la clause compromissoire I 394
Nullité du contrat
- exception de procédure ou défense sur le fond ? I 320
- peut-elle être soulevée d’office par l’arbitre ? I 345
— pour atteinte aux bonnes mœurs I 490, 507
- pour corruption I 507
- pour non respect des règles syriennes relatives au
boycottage d’Israël II 257
— pour vice du consentement
pour violation du Traité CEE
I 198
I 341
Voir aussi Contrat
O
Obligations
Voir Contrat
Offre
acceptation III 401
Ohio (État d’)
Code de commerce uniforme (UCC)
-section 1302-27 I 23
- section 1302-28 I 23
Oman
Omani Commercial Agents Law VI 843
Opinion dissidente
des deux coarbitres H 257
la communication d’une— aux parties II 257
IV 66
- de 1975: article 19 et Règlement intérieur
de la Cour (article 17)
- de 1998: article 25(1)
Ordre public
application de lois étrangères d’application
immédiate III 336
ccii
■
-
-'-• -ÿT-- ■- -- - —-
%y
application des règles de la Lex fori en matière de

prescription I 540
communautaire (CEE) I 179, 546
V 561
contrat contraire à 1’ — et compétence de l’arbitre I 498
IV 1
V 67
VI 945
- —
cumul des règles d’ du lieu de l’arbitrage et du lieu
d’exécution de la sentence avec les règles de
procédure I 350, 547
- de la Lex Mercatoria I 385
- du lieu de l’arbitrage I 476
- du lieu d’exécution de la sentence cumulé avec le I 455, 554
droit au fond choisi par les parties IV 1
- principes généraux du droit de procédure I 351
- et arbitrabilité I 184, 498, 547
IV 1, 32, 341
V 67, 561
- et boycottage de l’État d’Israël II 257
- et droit de. l’Etat de New York V 67
- et exclusion de compétence des tribunaux étatiques I 17
- et changement de la législation sur l’immigration II 452
- — interne et international II 199
- — international français
—
-
—
—
brésilien
égyptien
I
II
II
152
33
32, 180
- — sud coréen I 164
— — suisse I 44, 47, 48
III 220
- Actori incumbit probatio est un élément de 1’
véritablement international
—
I 449
- (in) compatibilité du droit applicable choisi par les I 271
parties avec 1’ — II
IV
257
516
- l’inaptitude de l’État/d’un établissement public à I 222, 282
compromettre est inopérante dans les relations II 264, 361
internationales IV 341
VI 945
et amiable composition I 448
II 361
et compétence de l’arbitre par rapport au groupe de
sociétés I 471
et condamnation solidaire des sociétés d’un même
groupe II 361
et corruption I 510
cciii
IV 1, 561
VI 831
et intérêts de la communauté internationale IV 341
et taux d’intérêt contractuel II 428
—
violation de 1’ international III 239
IV 1
VI 831
— violation de lois d’application immédiate
III 220
Organisation internationale
- et arbitrage V 599
— et choix du droit applicable 190
I
Pacta sunt servanda 135, 212, 249,

I 276, 298, 402
II 380, 387
V 797
VI 811, 945
définition I 135
II 199
et abus de droit II 380, 387
et amiable composition II 380
l’adage— est un principe de la Lex mercatoria I 402
II 437
et bonne foi II 519
VI 945
—
la règle trouve sa limite dans le principe supérieur
de la bonne foi II 302
Pacta sunt servanda bona fide n 437
Pakistan
Partie(s)
- absence de signature de la convention d’arbitrage par II II
une partie IV 180, 451, 510
- absorption d’une société en cours de procédure I 453
- capacité de l’État à compromettre I 127
- capacité d’une partie VI 41, 519
- Etat souverain/établissement public V 167
-l’inaptitude de l’État à compromettre est inopérante
dans les relations internationales I 222, 282
-immunité de juridiction et arbitrage I 248
-présence d’ime partie gouvernementale dans
l’arbitrage quand le contrat a été signé par un
établissement public II 154
cciv
I: '.i
intervention d’autres- ;n cours d’arbitrage II 484

IV 390
V 797
levée du voile social IV 119,474,510
l’arbitrage
—
mise en liquidation ou faillite d’une pendant 24, 41, 42, 237,
I 530
V 703
- personnalité morale défectueuse VI 41
- radiation d’une société du Registre du Commerce I 237
— —
une qui conteste la compétence de l’arbitre n’est
pas considérée avoir accepté cette compétence par le II 330
seul fait qu’elle s’est présentée devant l’arbitre V 141
—
- une agissant pour le compte d’une société à créer
est personnellement tenue II 330
- passivité d’une partie
- le silence d’une partie vaut acceptation tacite I 443
II 387
Voir aussi Arbitrage multipartite
Société
Parties, (origine géographique/nationalité)
- africaine 218, 246, 282,
365,433,511,542
I 27,101,112,345,
II 428, 450, 460
III 34, 332, 456, 475
IV 548
V 545, 567, 677
VI 729,831,945,973
algérienne I 67
III 555, 600
V 637, 703
VI 871
allemande 17, 18, 23, 215,
230, 316, 326,
332, 358, 362,
450, 473, 525
154, 165, 257
28, 256, 401, 405,
I 435,475,512,525
II 94, 187, 232, 385,
III 489, 543
IV 53, 141, 273,
V 363,393, 647, 783
américaine I 21, 23, 146, 204,
ccv
i
231, 301, 429,
465, 536, 546, 555
18, 24, 27, 33, 67,
80, 85, 358, 400,
437
3, 34, 46, 68, 100,
256, 309
7, 80, 94, 150,
U 198, 267, 373,
III 402, 470, 485, 543
IV 67, 107, 207, 327,
V 383, 413, 503
VI 59
anglaise I 274, 355, 497
n 11, 123, 165, 497
ni 40, 86, 420
IV 1, 150
v 327, 503, 513
VI 749, 789, 795
argentine II 85
IV 1
asie du sud-est I 215, 481
II 53
VI 843
australienne 1 539
autrichienne 422, 521
I 136, 352, 535
II 86, 185, 442, 500,
III 560
IV 119, 440
bahamas I 153, 257
VI 471
bahreïnie II 427
barbadienne VI 79
belge 10, 11, 76, 87,
100, 157, 159,
218, 280, 297,
326, 385, 394,
458, 462
I 43, 371
II 100, 134, 195,550
III 333, 470
IV 3, 39, 127, 335,
V 553,711,743, 749
Bermudes II 199
brésilienne I 197
ccvi
■
'•V-
si
II 33
VI 959
bulgare I 19, 326, 422
III 143, 500
V 115
canadienne III 256
chinoise V 107, 677
chypriote V 187
VI 851
colombienne V 141
coréenne I 164, 456, 559
III 108, 315
IV 431
V 15
cubaine I 410
danoise I 19
II 180
IV 135, 415
V 127, 229
VI 231
égyptienne 125, 499
11, 32, 69, 180,
I 249, 320, 394,
II 400, 496
III 75, 409, 414, 467
V 229, 537
- entreprise contrôlée par un État I 195, 224
- Emirats Arabes Unis II 11, 154
IV 569
VI 945
espagnole 13, 20, 115, 199,
253, 257, 304,
335, 453
I 80, 420, 437
II 613
III 135, 227, 415,
IV 489, 500
V 207, 623, 743, 797
VI 461
Etat balte V 81
État du Monde Arabe I 425, 480, 486, 528
II 53, 189, 454
III 152
Europe centrale ni 456
V 155
VI 879
ccvii
européenne 481,486,511,542
189, 309, 345,
1 361, 400, 450,
n 454, 460
ni 152
V 81, 155, 529
VI 749
éthiopienne I 19
extrême orientale V 529
finlandaise I 539
III 606
IV 373, 493
V 341
française 10, 13,21,25,27,
40, 56, 105, 122,
146, 153, 161,
179, 189, 197,
204, 233, 253,
257, 274, 282,
306, 312, 320,
325, 341, 347,
355, 362, 374,399,
409, 410, 425,
433, 453, 458,
465, 476, 497,
503,515, 528, 530
3, 32, 69, 101,
112, 217, 264,
274, 293, 300,
320, 339, 420
46, 75, 148, 277,
414, 420, 435,
447, 459, 487,
550, 555, 560,
613, 622
112, 187, 192,
300, 333, 445,
500, 569, 579
3, 39, 437, 537,
561, 575, 623,
I 629, 637, 647,
II 669, 703, 719,
III 737, 767, 777
IV 59, 231, 519,723,
V 749, 759, 767,
VI 781, 789, 795,
ccviii
L-.rl-ZC"-.:
851, 879, 893,

905, 931, 959
- gabonaise V 711
- ghanéenne I 167
- Gibraltar VI 749
- grecque I 17, 507, 521
IV 198, 241, 445
V 115
VI 723
Hong Kong I 124
hongroise II 123
III 405
IV 555
VI 781
indienne I 3, 33, 207, 312
II 18
IV 119
V 53, 335
VI 433
indonésienne III 277
iranienne 100, 161, 191,
I 394, 507
II 264
irlandaise IV 300
israélienne' I 246
italienne 20, 97, 164, 179,
185, 199, 278,
285, 289, 316,
341, 413, 456,
501, 530, 546
236, 293, 298,
302,318,358,519
28, .134, 143, 309,
567, 592, 600, 606
214, 227, 241,
1 389, 516
II 187, 249, 273,
III 383, 393, 413,
IV 545,599,719, 737
V 79, 543, 803, 811,
VI 871, 917
- japonaise 1 49, 297
IV 308
V 67
- jordanienne III 315
V 363
ccix
kenyane V 291
koweitienne I 115
lettone V 327
libanaise I 30
II 330, 465
III 452
V 783
libérienne III 282
V 97
libyenne I 58, 304, 476
U 3, 298, 302, 519
III 3
IV 455, 485
liechtensteinoise I 559
II 352, 536
IV 232
luxembourgeoise I 153, 320
V 167, 553
VI 95
marocaine I 429
H 217, 300
VI 931
mexicaine 27, 76, 87, 376,
I 385
II 43, 274
monégasque IV 7
Moyen-Orient I 425, 440, 486,
II 528, 529
III 53, 189, 257,
454, 152
mozambicaine II 142
néerlandaise 138, 355, 374,
I 490, 499, 503
II 142, 236
III 108, 148, 401
IV 198, 321, 527
V 669, 777
VI 95, 519, 749
nigérienne VI 859
nord africaine V 575
norvégienne I 224
omanaise VI 843
organisation internationale V 599
ougandaise I 20
pakistanaise I 3, 33, 40, 56, 207,
II 330
ccx
T
-V. Vi . .. VUV<r i.-.-.r r r -.-i
panaméenne II 33
III 282
IV 493
V 689, 727
portugaise IV 516
V 39, 341, 561
pays en développement I 194, 237, 263
qatari II 11
IV 214
roumaine I 25, 231, 233, 280
III 299
russe V 97
Saint-Christophe-et-Nevis VI 885
saoudienne II 11,67, 465
III 622
IV 75
sénégalaise III 467
slovaque V 15
sud-africaine I 358, 409
suédoise I 58, 189
IV 308
V 291
sub-saharienne V 567
suisse 28, 49, 118, 138,
146, 185,289, 320
257
I 299, 452
II 7, 267, 440, 548,
III 555
IV 249, 689, 727,
V 767, 797
VI 461, 859, 905
syrienne I 97, 413, 449, 555
II 257
III 487,512,525, 567
IV 385, 389
VI 759
tchécoslovaque I 278
thaïlandaise I 335
VI 471
tunisienne II 318, 361
VI 433, 917
turque I 122, 157
III 185
IV 321,402,527,579
ukrainienne VI 885
ccxi
vénézuélienne 1 465
yéménite U 309, 508
VI 893
yougoslave 18, 105, 118, 191,
230, 285, 301,
332, 347, 399,
I 473, 490
n 249, 394
III 409, 442, 592
IV 192
VI 803
Pays-Bas
- Code civil (article 6: 258) IV 321, 527
- droit néerlandais et délai de réclamation pour vices de
qualité I 232
- preuve d’un accord amiable
I 141
Pénalités contractuelles V 207, 479
VI 95, 543
ajustement pour tenir compte de la dévaluation de la
monnaie contractuelle I 203
correspondant à une obligation d’achat minimum I 199
— pour retard de livraison I 422
IV 500
Voir aussi Liquidated damages
Pétrole
contrat de livraison d« I 224
II 279
IV 500
consortium pour l’exploration et l’exploitation d’un
gisement pétrolier m 584
clause sur les aires d’intérêt mutuel III 584
contrat d’exploration pétrolière I 154
II 154
- application des principes généraux du droit à un
contrat de concession pétrolière U 154
Voir aussi Consortium
Préjudice
—résultant de l’introduction d’une action en justice
bouleversement des conditions économiques et
III 134
inflation II 112
calcul du— après la résiliation d’un contrat de
concession I 201, 220
construction
—
calcul du après la résiliation d’un contrat de I 255
II 302, 400
—
calcul du après nationalisation de matières
premières I 194, 237
ccxii
—
calcul du après refus d’une partie de prendre
livràison/d’effectuer la livraison I 174, 160, 281
- de pétrole I 26, 226, 234, 293
—
calcul du après résiliation d’un accord d’agence / de
distribution
1 32, 33, 124
II 123
III 199
V 609, 783
VI 851
Voir Contrat de distribution
— —
calcul du après violation d’un contrat
d’investissement I 135
i
—
- calcul du en cas d’achat de marchandises de
remplacement II 249
- calcul du— en cas d’achèvement du contrat par le
maître de l’ouvrage à la place d’un sous traitant II 180
- calcul du — en cas d’impossibilité d’exécuter le II 101, 112, 249
contrat V 97
Voir Frustration
— ——
- calcul du en cas de revente de la marchandise
calcul du en droit hongrois
II
II
236
123
—
- calcul du en droit syrien et en droit anglais I 174
—
- calcul du en présence d’une clause limitative de
responsabilité II 27
—
- calcul du et clause or I 278
—
- calcul du pour atteinte à la réputation d’une partie
- calcul du— pour non paiement
I 161
I 74, 75, 76
—
- calcul du quand l’arbitre a les pouvoirs d’amiable
compositeur I 227, 436
- calcul du— quand l’arbitre n’a pas les pouvoirs
d’amiable compositeur I 368, 374
- disposition excluant la réparation du préjudice
indirect U 27
- dommages-intérêts compensatoires. I 22, 24, 26, 27
II 302
V 291
- dommages-intérêts fondés sur l’”ajustement
raisonnable” du prix prévu au contrat IV 241
- dommages-intérêts forfaitaires I 84, 380
III 3, 152, 606
dommages-intérêts multiples III 336, 577
V , 751
dommages-intérêts négatifs (en droit suisse) I 145
dommages-intérêts pour rupture abusive du contrat VI 95
dommages-intérêts punitifs III 46, 475
évaluation équitable VI 135
évaluation de l’indemnité compensatrice par l’arbitre III 152, 175
j
ccxiii
fondement juridique VI 59
l’étendue de la réparation doit être déterminée
d’après les circonstances et la gravité de la faute du
débiteur II 302
limitation contractuelle VI 213
l’indemnité compensatrice d’un préjudice doit être I 204, 326
payée dans la monnaie où ce préjudice est subi n 371
«justice corrective» V 751
lien de causalité III 459
V 751
VI 59
—
limitation du au dommage prévisible
manque à gagner
I 281
III 100, 282
V 599, 659,719, 783
VI 851
VI 135
moral et matériel II 345
V 797
obligation pour les parties de minimiser le dommage 22, 27, 161, 205,
224, 241 281,296,
449
I 85, 123, 302, 371,
II 400
III 3, 40
IV 493
V 783
— pénalité contractuelle pour rupture du contrat
- pourparlers transactionnels infructueux
VI
I
95
343
- préjudice causé à la clientèle d’une partie après la
rupture du contrat I 161
— préjudice pour atteinte à la réputation
- preuve du préjudice
VI
VI
135
433, 749
— résiliation d’un contrat de vente exclusive
- tolérance manifestée par l’autre partie
III 46
I 278
Prescription III 86, 382
IV 164
V 363, 383, 737
VI 179
application de la loi du lieu de l’arbitrage (Lex fori) I 539
ou de la loi applicable au fond (Lex caiisaé) II 136
Preuve
interruption de la— IV 192
collaboration des parties à l’administration de la — III 513

VI 723
degré de la preuve pour l’appréciation de l’atteinte à
la réputation commerciale dans un contrat de
distribution II 123
ccxiv
a
—
fardeau de la en arbitrage international
1 267, 295
III 513
V 575
VI 831
—
liberté de l’arbitre dans l’administration des
III 513
V 575
lien de causalité III 459
par écrit d’un accord transactionnel I 141
par témoins VI 811
preuve documentaire VI 723, 811
principe actori incumbit probatio I 229, 295, 449
III 513
V 575, 677
- recevabilité d’agendas en tant qu’éléments de
Voir aussi Actori incumbit probatio Préjudice
— IV 119
Prima facie
existence— d’une clause compromissoire I 306, 525
II 11, 279, 339
III 402, 435, 447
- —
constatation par la Cour de l’existence d’une
convention d’arbitrage II 330, 410
- la décision de la Cour ne préjuge en rien la
recevabilité ou le bien fondé des moyens relatifs à
l’existence ou à la validité de la convention
d’arbitrage II 279
- de 1975: Articles 7 et 8(3)
- de 1998: Article 6(2)
Procédure Arbitrale
Principes généraux du droit III 592
—
- applicables en Europe Occidentale III 489
— — dont s’inspirent les arbitres IV 1
VI 811
et Lex Mercatoria I 435
IV 489
et usages du commerce international II 437
et vices du consentement I 435
présomption d’égalité des contractants III 475
IV 80
- principes européens du droit des contrats IV 440
- règles de bon sens communes aux principaux
systèmes juridiques I 208, 212
- règles de droit communes à toutes les nations
I 190, 191
Lex Mercatoria
ccxv
Principes UNIDROIT
Principes de portée internationale
—
- applicables à un projet d’investissement I 129, 130,
— l’arbitre a compétence pour statuer sur sa propre
compétence I 291
- l’arbitre n’est pas lié par les conclusions des experts I 286
- l’autonomie de la clause compromissoire est un — I 290
II 199
- les dommages-intérêts sont limités au préjudice
prévisible I 281
- les parties doivent mener de bonne foi toute I 296
renégociation du contrat n 428
-- les parties doivent négocier de bonne foi toute
transaction pour régler un litige i 296
- les praticiens du commerce international sont
présumés s’engager en connaissance de cause I 256, 281,299,416
- principe d’interprétation dite de “l’effet utile” des I 425
dispositions contractuelles II 371
Principes UNIDROIT 321, 415, 440,
465, 493, 500,
516, 522, 527,
IV 115, 413, 513,
V 529, 575, 609
VI 795
Prix
—
augmentation du pour cause de retards d’exécution
(contrat de construction) II 302
—
augmentation du pour refus de livraison I 293, 297
—
clause de stipulé à forfait II 302, 522
III 152, 153
IV 533
élément constitutif du —
et clause d’ajustement/de révision
III 600, 603
I 233, 440
rv 435
—
fixation du dans un contrat de vente de pétrole
il est douteux qu’un arbitre, même amiable
I 440
compositeur, puisse parfaire l’accord des parties sur

un élément aussi important que le —
indétermination du — dans un contrat de fourniture
II 437
II 437
inflation
—
indexation du dans un contrat de longue durée 1 81, 378, 502
III 108
paiement du — III 443, 459
IV 435
V 341, 503
ccxvi
i
Voir Convention de Vienne du 11 avril 1980

—
- respect du contractuel malgré l’augmentation des
marchandises sur le marché II 394
Voir aussi Révision du prix
Procédure arbitrale
- accomplissement de la première étape de la III 315
procédure IV 461
VI 311
appel d’une garantie bancaire pendant la — I 484
II 302
- arbitrage accéléré III 209
Voir Règlement d’arbitrage de la CCI
- arbitrage multipartite III 277
- calendrier de la procédure VI 311
- composition du tribunal arbitral III 332
■,.T.
- confidentialité V 751
VI 135
défaut du défendeur III 447
délai pour présenter une demande d’arbitrage I 317
délai pour présenter une demande reconventionnelle I 317
demande nouvelle selon Règlement CCI I 259, 521
IV 32
VI 879, 905
détermination des parties défenderesses V 553
et ordre public du lieu de l’arbitrage et du lieu
d’exécution de la sentence arbitrale I 350
et procédure pénale parallèle V 553
VI 135
- force probatoire d’un rapport d’expert I 286
- formulation in limine litis d’une exception
d’incompétence I 320
- injonction par un tribunal étatique d’arrêter la— II 309
- jonction de demandes III 567
IV 94, 461
V 545
Voir Jonction de demandes
- la conciliation préalable à l’arbitrage est-elle
obligatoire ou facultative ? I 242
- langue de la procédure V 669
—
- la prescription est une question de en droit anglais
- mission et pouvoirs juridictionnels de l’arbitre
I 540
III 447
IV 470
obligation des parties d’éviter tous actes susceptibles I 484, 512
d’étendre ou d’aggraver le différend V 315
ordonnance de procédure V 761
péremption d’instance I 492
ccxvii
production de pièces VI 433
recevabilité d’un argument de plaidoirie non articulé JJJ 414
dans les mémoires IV 7
recevabilité de la demande reconventionnelle liée à
l’admission de la demande principale IV 198
recevabilité d’une écriture II 286
VI 789
recevabilité de pièces V 751
recours direct à l’arbitrage de la CCI sans soumission
préalable à l’ingénieur dans un contrat FIDIC I 544
respect du principe de la contradiction III 447
- refus d’une nouvelle audience par l’arbitre U
-retard dans la communication d’un mémoire I
sentence d’accord parties II 298
sentence partielle I 377
V 609
sentence partielle ou ordonnance de procédure I 486
suspension de la — III 277, 282
V 659
Voir aussi Acte de Mission
Autorité de la chose jugée
Proper law of the contract II 136
III 315
conflit avec la loi du lieu d’exécution I 210, 211
principe de droit international privé I 4, 123
II 136
Procédures collectives
Voir Faillite
Procédure pénale parallèle
Voir Action pénale
Propriété intellectuelle III 435
IV 470
Voir aussi Arbitrabilité
Protocole de Genève du 21 septembre 1923 relatif aux 33
clauses d’arbitrage II
Qatar
application d’office de considérations d’équité IV 214
Québec
- Code de procédure civile
- article 944 (10) II 330
Qui eligit judicem eligit ius I 332, 401
ccxviii
.VjVi i'/xV/iV • rv "J ____ LO
- - --- • v ---
Rebus sic stantibus

dans la Lex Mercatoria 1 297
définition I 209, 212, 276
III 537
IV 321, 527
en droit italien I 202
en droit yougoslave 11 249, 394
i et force majeure I 4, 208, 299
'i et frustration I 3, 208, 212, 299
II 394
- et imprévision I 4
- interprétation I 4
- le principe— doit être appliqué avec précaution I 281, 294, 297
- taux de la commission dans un contrat de courtage II 53
Règlement d’arbitrage de la CCI (1955)
— article 7
- article 13 (3)
I 247
I 216
- article 16 I 207
- autorité de la chose jugée 1 331, 350
- conséquences de la qualification de décision
administrative de l’acceptation ou du refus de la Cour
de constituer un tribunal arbitral II 330
- péremption d’instance I 492
Règlement d’arbitrage
-
article 1(1) I 421
II 339
III 322
- article 3 11 321, 481, 491
IV 389
- article 4 II 491
III 216
- article 4(1) II 279, 321, 410
IV 389
V 141
- article 5 II 491
IV 389
- article 7 I 102, 480
II 448
III 420, 435
V 141
ccxix
- article 8(3) 101, 151, 306,
394, 466, 480,
I 521, 525, 533
Voir aussi Convention d’arbitrage 18, 154, 202, 279,
321, 330, 339,
II 410, 449
68, 240, 420,
III 467
IV 94, 241, 333, 373
V 141
18, 53, 154, 203,
II 265, 330
III 467
IV 333, 431
V 141
- article 8(5) 110, 286, 402,
I 485, 513, 534
II 300, 481
III 34, 435
III 154
III 154
- article 11 IV 555
I 348, 399
II 69, 165, 298, 362
III 513
- article 12 IV 32
- article 13(1) n 32
317, 323,454,
I 489, 514
IV 389
- article 1 3(2) 1 103, 395
II 47, 279
III 322
- article 13(3) 107, 1 18, 149,
170, 283, 302,
327, 356, 359,
365, 400, 428,
I 459, 463, 489
II 143, 154, 223,
ccxx
. i.'* j ÎSHüi, i i:"TT
«i
..
265, 293, 319.

362, 470
112, 186, 310,
318, 409,
442, 467,
489, 500, 573,
III 592, 622
IV 300,308,386,536
V 513, 529
- article 13(4) 98, 315, 399,502
- article 13(5) I 85, 100, 109, 118,
131, 171, 301,
356, 359, 381,
415, 422, 491,
505, 556
II 53, 204, 223, 263,
265, 380, 392
III 187,310, 452,
414, 453, 475,
489, 512,
567, 592,
622
IV 300, 308, 485
Voir aussi Usages du commerce international V 273, 529
- article 14 II 165
III 447, 513
- article 14(1) I 273
III 217
- article 14(2) I 287
II 134
III 429
- article 15(4) I 273
- article 16 262, 317, 320,
I 454, 514, 523
Voir aussi Procédure arbitrale II 18, 47, 279
III 273, 401, 429
32, 138, 164, 389,
IV 555
V 703
- article 17 II 298
- article 18 I 492
- article 19 II 257
ccxxi
- article 20 II 154
III 74, 298, 381
IV 321, 527
V 15
- article 20(1) III 208, 308
- article 20(2) n 136
III 308
- article 21 I 65, 66, 78, 485
Voir aussi Sentence II 88, 298
III 525
- article 26 I 292, 467, 548
n 33, 144, 205, 324
m 144, 409, 525
IV 341, 543
Règlement intérieur de la Cour
- article 1 II 343
IV 461
- article 15 IV 555
- article 16 IV 555
- article 17 II 257
- article 18 II 309
— Compatibilité d’une procédure d’arbitrage accéléré
avec le Règlement d’arbitrage CCI III 209
Voir Procédure arbitrale

—
-
article 6
article 6 (2)
V 107
V 677
VI 729, 795, 831
article 6 (4) V 115
article 15 V 327
VI 723, 789, 893
article 17 (1) V 81, 115, 229
article 17 (2) V 81
VI 723
article 19 V 341
VI 879, 893, 905
article 22 VI 789
article 23 (1) V 315, 327, 599
article 23 (2) V 107
VI 871, 959
ccxxii
article 25 (2) V
article 28(6) 637
VI 789
article 30 V 545
article 31 (3)
Voir Frais de l’arbitrage
article 35 V 107, 315
VI 945
Appendice I
-article 6 VI 135
Appendice III
-article 2 (9) V 761
Règlement d’arbitrage de la CNUDCI I 333,356,401,415
Règlement de conciliation de la CCI
— article 11
Règlement de référé pré-arbitral de la CCI
III 513
V 767
Règles uniformes de la CCI pour les garanties contractuelles I 390
II 345
Règles et usances uniformes de la CCI relatives aux crédits I 116, 336, 338
documentaires V 15, 413, 529, 647
Relations précontractuelles
- et existence d’une convention d’arbitrage II 533
- et interprétation du contrat II 165
- et obligation d’agir de bonne foi II 85
Renonciation
à un droit II 123
IV 198
VI 135, 345
- à l’arbitrage II 18
- à une condition préalable VI 311
— à un droit de préemption
- à l’immunité de juridiction en signant une clause
VI 345
d’arbitrage 126, 131

Représentant légal d’une personne morale
— en droit suisse
- et droit applicable
II 534
II 534
Repudiation du contrat II 165
ni 3
Résiliation
—
- clause de et arbitre amiable compositeur
- clause de résiliation automatique dans un contrat de
II 380
concession I 204
—
- conséquences de la d’un contrat de concession I 220
IV 66
V 589
ccxxiii
d’usine
—
conséquences de la d’un contrat de fourniture I
II
253
400
conséquences du manque de rigueur dans l’exercice I 278
du droit de résiliation V 291, 609, 623
délai de préavis V 589, 783
VI 851
- en raison de difficultés qui en rendaient l’exécution
impossible II 257
- et abus de droit V 629
- et droit espagnol I 200
- et droit italien I 200
- possible que si elle est prévue dans le contrat I 200
- pour retard dans l’accomplissement de formalités
administratives I 304
- pour retard dans l’ouverture d’un crédit documentaire I 197, 374
- résiliation d’un contrat de vente
- pour changement de circonstances II 394
- pour force majeure I 233
- clause de renégociation du prix ne donne pas
automatiquement lieu à la —
- tolérance manifestée par l’autre partie
I 234
I 278
- résiliation d’un contrat de distribution IV 150,415
V 609
VI 851
résiliation d'un contrat de licence IV 198
Res inter alios acta II 380
Responsabilité délictuelle V 207
- arbitrabilité des demandes III 336, 577
- compétence de l’arbitre pour connaître d’une II 18, 358, 401, 420
demande fondée sur la — IV 548
V 719, 777
Voir aussi Convention d’arbitrage Arbitrabilité
Responsabilité précontractuelle VI 135
Responsabilité quasi délictuelle III 420
IV 548
VI 985
Retard
conséquences du retard dans l’ouverture d’un crédit
documentaire I 374
dans l’exécution des travaux II 180
dans le chargement d’un navire I 30
de livraison et pénalités contractuelles I 422
de paiement
-principe selon lequel un débiteur ne doit pas
recueillir un avantage de son retard à s’acquitter de
sa dette I 204
ccxxiv
...» .
- et suspension de l’exécution du contrat

II 165
- pour la livraison de contre-plaqué
I 168
Révision du prix
- et clause de “hardship”
-
——
clause de dans un contrat de transport
- clause de dans un contrat de vente de pétrole
IV
1
1
469
274
440
- et clause de prix stipulé à forfait dans un contrat de
construction 302, 522
II
- et droit libyen
II 302, 521
Risque de change III 86
- billet à ordre I 312
- clause de garantie-or I 193
- validité de la clause de
Royaume Uni
— 1 193
Arbitration Act (1996),
-Sect. 7 VI 843
- Sect. 39(1) V 335
- Sect. 46 VI 843
- détermination de la proper law
— doctrine de la frustration
- droit du— et immunité de juridiction
II
I
I
136
3
251
- —
droit du et prescription
- Insolvancy Act 1986
I 540
VI 79
- loi sur la vente de marchandises de 1979
- section 50(7)
Russie
— preuve du droit étranger
- questions de prescription régies par la lex fort
m
II
II
45
136
136
- Nouveau Code civil (article 395) 187

V
Sénégal
validité de la clause compromissoire III 468
Sentence arbitrale
autorité de la chose jugée VI 739
contrôle d’un expert III 475
forme V 637
modalités d’exécution II 33
monnaie de paiement I 22
III 46
ccxxv
refus de signer la sentence par un arbitre 1 66
sentence d’accord parties II 298
V 335
sentence en interprétation
- pouvoir des arbitres d’interpréter une sentence
finale, de réparer les erreurs ou omissions
matérielles III 332, 525
- pouvoir de la Cour internationale d’arbitrage III 525
sentence partielle 78, 154, 402, 485
I 3, 85, 279, 298,
II 300, 309, 320, 330
VI 213, 231, 843
Voir aussi Autorité de chose jugée
Exécution provisoire
Société
- le pouvoir des organes sociaux relève de la Lex I 322
Societatis VI 519
-
-- organisme d’État
—
liquidation et dissolution d’une pendant l’arbitrage I 237
III 600
— personnalité morale défectueuse
- transfert de patrimoine
VI
III
41
600
- une— existante contractant pour le compte d’une
société à créer est personnellement tenue II 330
Voir aussi Groupe de Sociétés
Faillite
Sous-traitance
— application des stipulations du contrat principal à un
contrat de— dans un litige de construction I 158
- application du droit du contrat principal au contrat
de — I 355
—
- contrat de et droit applicable I 355, 377, 399
— intervention du sous-traitant dans l’arbitrage entre le
maître de l’ouvrage et l’entrepreneur principal II
— —
le contrat de a qualité de contrat accessoire par
rapport au contrat conclu entre l’entrepreneur et le
495
maître de l’ouvrage II 400

- loi applicable IV 112
Stipulation par autrui III 550
Voir Assurance
Subrogation III 534
V 659
- droit du subrogé d’invoquer une clause
compromissoire signée par le subrogeant I 312
Voir aussi Assurance crédit
ccxxvi
Succession juridique
Suède
droit applicable à un contrat de construction navale
I 62
droit suédois et immunité de juridiction
I 9
loi sur l’arbitrage de 1929
I 10
Suisse
Canton de Genève
- droit de procédure I 112
Canton de Zurich
- droit de procédure
II 180, 540
Code civil
- article 2 I 53, 86
III 541
IV 164
V 727
II 65
III 236,241,384, 544
- article 3 I 53
- article 4 III 260
V 575
Code de procédure civile fédérale I 43
- article 17 I 43
- article 24 II 16
- article 1 II 352, 535
V 249
VI 859
- article 2 II 352
V 249
VI 859
- article 3 II 352
- article 5 II 352, 534
- article 1 1 II 81
- article 12 II 82
V 249
- article 14 II 82
- article 16 II 82
V 249
VI 859
- article 18 I 53, 560
CCXXVll
n 57
III 94, 159, 242
- article 19(1) III 242, 259
- article 20 II 58
III 270, 539
IV 164
V 575, 727
- article .20(1) III 220, 242
V 249
- article 24 V 249
- article 29 II 60
V 249
- article 31 II 60, 83
- article 32(1) ffl 390
V 249
- article 34(1) in 259
- article 37 n 81
- article 38 V 249
- article 41 V 727
VI 905
- article 42(2) in 167, 395
VI 905
- article 43 I 294
- article 44 V 315
VI 859
- article 97(1) n 185
in 392
IV 164
- article 100 I 30
- article 102 I 54
III 98, 174, 192, 268
IV 32
- article 104 I 121
n 189
III 173, 396
ccxxviii
ic-v. .. _:c-:-x- -:.-LiV2-T.: i:-
- -.-
IV 32
V 249, 575
VI 471
- article 107 1 54
II 185
III 164, 192, 269
- article 108 I 54
III 164
- article 109 I 54
III 268
- article 111 IV 32
VI 471
- article 127 I 423
III 96, 385
- article 160(1) VI 213
- article 164 V 567
VI 811
- article 170 V 567
- article 181 II 13
V 529
VI 471
- article 197 III 542, 546
- article 321e(l) III 392
IV 164
- article 373 II 65
III 172
ccxxix
- article 394 II 61
- article 398(1) m 392
- article 404 IV 32
- article 412 II 63
- article 413 II 64
III 222
- article 417 II 66
-
-
article 454(1) et (3)
- article 538
III 384
III 275
- article 545 III 260, 274
- article 577 ni 266
- article 718 V 249
- article 720 V 249
- article 764 II 15
- article 868 II 15
- article 933 V 249
Code pénal
- article 3 15 m 229
Concordat sur l’arbitrage
en général I 69
II 11
- article 1 II 280
- article 4 III 51
- article 5 I 548
- article 6 I 155
II 279, 330, 352
III 556
- article 8 I 43, 154
II 154
- article 10 I 51, 52
- article 24 I 43
ccxxx
\uz. '-:S"-7.-:.-}7-ï y 7 1 _L ■ Liv_.: li:” :ii ; V"ÿ.-:ÿ-:."* -. •
-' -:-:-.:-.:v;-— - 7-"::
a :
- article 26 I 110, 402, 483

II 300
- article 31 I 437, 501
- article 32 I 78, 111, 154, 485
- et mesures conservatoires ou provisionnelles II 300
- immunité I 48
Droit suisse applicable au fond I 20
- à un contrat d’entreprise I 400
- et changement des circonstances extérieures I 293
- application plus souple du droit suisse en ce qui
concerne les contrats internationaux 1 294
- et pénalités de retard I 423
- ordre public I 44, 47
V 727
- culpa in contrahendo I 140
- et amiable composition I 20
- différend sur des surestaries I 29
- choix par les parties du droit anglais II 142
- exigence d’un écrit II 80
-
intérêts négatifs I 145
- Loi fédérale sur la concurrence déloyale III 225
- article 1(d) I 55
-
article 1(g) I 55
-
article 2 I 55
- Loi fédérale sur la navigation maritime sous pavillon
suisse du 23 septembre 1953 III 383,388,391,392
- Loi fédérale sur le droit international privé
-
article 7 VI 871
- article 9 VI 871
IV 32, 389, 402
V 575, 703, 727
- article 116(1) VI 179
IV 536
- article 155 V 249
VI 179
III 80, 569
IV 32, 341, 536
V 249
VI 859
ccxxxi
IV 341, 391
- article 177(2) VI 945
- article 178 II 352, 534
III 556, 569, 615
IV 536
V 273
IV 341, 389
V 249, 273, 537
- article 178(2) IV 341
V 273
- article 178(3) IV 341
V 273
V 393
- article 186 IV 373, 536
V 703
- article 186 (1 bis) VI 871
- article 186(3) V 689
- article 187(1) III 557, 567
IV 536
- article 190(2) IV 389
- dispositions transitoires III 459
- et convention d’arbitrage II 535
- arbitrabilité des questions de concurrence I 548
- droit international privé I 18
- règles de conflit de lois I 19
- renvoi I 19
Surestaries I 29
Syrie
capacité de compromettre pour une entreprise
publique II 257
Code civil
- article 20 IV 385
et droit applicable I 97
pouvoir de l’arbitre de statuer sur sa compétence 257
II
Tchécoslovaquie
Code de Commerce international
-article 343 I 280
- article 344 I 280
- article 345 I 280
ccxxxii
:c¿rc-ÿ£==->:x---- --
- ■
g
f
I
Traité CEE (Traité de Rome) III 561

- article 85 / article 81(1) I 166, 179, 546
IV 52, 543
V 3, 39,561, 719
VI 231, 543
- sursis à statuer 1 180
- nullité du contrat I 182, 341
article 86 I 341
IV 52
- interprétation préjudicielle de la Cour de Justice
(article 177) I 179, 342
- Règlement 19/65 I 342
- Règlement 67/67 I 341
- Règlement 83/83 V 3
- Règlement N° 17 I 180, 182
VI 231
Voir aussi: Cour de Justice des Communautés
Européennes
Droit européen
Transaction V 711
caractère confidentiel des propositions échangées en
l’absence d’accord des parties III 513
Voir Lex mercatoria
- preuve I 141
Voir Sentence (d’accord parties)
- responsabilité pour échec d’une tentative de—
- tentative de règlement amiable en cours de procédure
I 343
arbitrale III 513
Treu und Glauben I 276
Tunisie
Code des obligations et des contrats
Turquie
Certificat d’exportation IV 402

- — au regard de la conformité des marchandises IV 267
ccxxxiii
V 647
— — reflétés dans la Convention de Vienne sur les
contrats de vente internationale de marchandises
II
IV
223
431
Voir Convention de Vienne du 11 avril 1980
- accomplissement de conditions suspensives pour
l’entrée en vigueur du contrat III 414
— Voir Contrat
— —
application des pour combler les lacunes du contrat II
V
199
529
- contrat de construction II 67
Voir Contrat de construction III 414
- contrats conditionnels III 414
- —
effet obligatoire des IV 415
— existence d’un usage dispense l’arbitre de rechercher
le droit applicable au fond I 304
- Lex mercatoria II 437
IV 489
- intérêts in 459, 475
Voir Intérêts V 575
- le rééchelonnement des dettes des pays du tiers
monde ne constitue pas un —
- le respect du droit commun des nations est un—
II 428
I 191
- mise en demeure m 600
- obligation de loyauté III 475
- portée sectorielle II 437
- pouvoir des arbitres de tenir compte des — III 512
IV 516
V 647
présomption de compétence professionnelle des
opérateurs du commerce international III 414
principes généraux du droit et— III
IV
512, 592
500
V 529
Voir Principes généraux VI
— usages admis par les professionnels pétroliers
Voir Consortium
III
IV
519
584
500
— validité de la clause compromissoire II 199
Voir Convention d’arbitrage III 567
- de 1975: article 13(5)
- de 1998: article 17(2)
Usages du commerce maritime I 331
- Définition I 99, 267, 414, 428
ccxxxiv
.j.-
—
7.-r:~z.
— 1-. .-j
-• .-f.- -•• -- ---
.■■ -j- |
Venire contra factum proprium V 647, 727

VI 811
- et exception d’inaptitude à compromettre d’un I 283
établissement public II 263, 361
- et validité de la convention d’arbitrage II 540
Voir aussi Bonne foi
Estoppel
Vente internationale
Voir Concession
Contrat d’achat/vente
Convention de La Haye du 15 juin 1955 sur la loi
applicable aux contrats de vente internationale
de marchandises
Convention de Vienne sur la vente internationale
de marchandises du 11 avril 1980
Loi uniforme sur la vente internationale d’objets
mobiliers corporels de 1964 (L.U.V.I.)
Vice du consentement I 199, 435
II 339
III 401
charge de la preuve du dol III 336
définition du dol III 336
dol dans la conclusion du contrat III231,
135 336, 401
- erreur de fait II 154
- partie la plus faible dans les négociations
contractuelles III 336
Violation du contrat
- — substantielle ou non I 198
II 24
actes législatifs d’un État souverain I 125
dénonciation poui IV 52
V 127,187,229,291
et absence de réaction de la partie I 430
exécution malgré l’existence d’un différend II 24
force majeure I 158, 172
V 97, 155
lien de causalité entre - et dommages VI 345
notification de la—
pour prix plus élevés que les prix fixés dans le contrat
IV 267
II 249
pour refus de payer les redevances I 53
refus de continuer l’exécution du contrat I 158
responsabilité pour — IV 66
V 291, 437
ccxxxv
violation de la garantie contractuelle VI 231
Voir aussi Préjudice
Visa I 6
—
refus de donner un pour des raisons d’ordre racial et
de force majeure I 230
Voie directe
Voir Droit applicable au fond
Wellgfall der Geschaflsgrundlage

Voir Rebus sic stantibus
Frustration
Yémen (République arabe du) II 508

Yougoslavie
— droit yougoslave relatif au contrôle des exportations
et des importations
I 491
11 394
— Loi sur les obligations de 1978 II 249, 394
III 410
— droit public I 18, 120
— droit applicable
- à un contrat de compensation I 120
- à un contrat d’achat/vente 249
II
ccxxxvi
r- - ■L-Z.-Z-LC,:-" v~ , . ...
¿j
V; 'ú
| ICC Arbitral Awards
reprinted from the Yearbook Commercial Arbitration
2008-2011
J
INTERNATIONAL CHAMBER OF COMMERCE
Final award in case no. 11307 of 2003
Parties: Claimant: State-owned corporation X

Respondent: Corporation Y
Place of
arbitration: London, England
Published in: Unpublished; original in English
Subject matters: - bribery

- summary arbitral award (no)
- unjust enrichment
- restitution of sum paid under illegal contract
- costs of arbitration shared equally by parties
Facts
On 5 May 1994, Y, a corporation of Country Z in Southern Africa, acting

through its subsidiary R, entered into two Maintenance Agreements with X,
a state-owned corporation of Sub-Saharan Country X, to provide routine and ad
hoc maintenance, through R, for aircraft owned by X. Routine maintenance
work would be paid on a “power 1*7 die hour” basis; ad hoc (“over and
above”) work would be paid separately. The Maintenance Agreements provided
for ICC arbitration of disputes; they provided for common law as the governing
substantive law, unless the parties agreed otherwise.
On 11 May 1994, Y entered into a contract with Intermediary A (the
Consultancy Contract), by which Intermediary A agreed to negotiate the price
at which Y was to supply services to X, against payment of a commission. It also
agreed to provide information and assistance on related business plans and to give
advice in respect of labor, economic and political conditions in Country X.
X paid Y a total of US$ 55,553,886.03 under the Maintenance Agreements.
Y made proportional payments to Intermediary A under the Consultancy
Contract up to February 1998.
Disputes arose between the parties under both the Maintenance Agreements
and the Consultancy Contract.
Reprinted from the Yearbook Commercial Arbitration 3

ARBITRAL AWARDS CASE NO. 1 1307, 2003
On 23 October 1998, Intermediary A commenced court proceedings in a

lower court of Country Z (the LC Action), seeking payment of commissions
alleged to be due under the Consultancy Contract after February 1998. Y argued
in reply that the Consultancy Contract was null and void because it was “a
sham” that had been entered into only to channel bribes to senior employees
of X and to senior government officials in Country X in order to influence them
to award the aircraft maintenance contract to Y. Y cancelled the Consultancy
Contract on 30 November 1998, with effect from 28 February 1998.
On 30 November 2000, Claimant X filed a request for ICC arbitration against
Respondent Y in respect of the Maintenance Agreements. X argued that the
Agreements were tainted by corruption and bribery because Y, through
Intermediary A, bribed employees of the Government of Country X and
other persons who were able to exert influence over X so that they would
persuade X to enter into the Maintenance Agreements with Y. Claimant X
argued that as a consequence the Agreements were null and void and X was
entitled to repayment of the entire sum of US$ 55,553,886.03 plus interest;
alternatively, that it was entitled to repayment of the sum of US$
9,887,480.38 plus interest. This latter sum was the commission fee owed by Y
to Intermediary A; X alleged that it corresponded to the amount by which Y
increased the contractual price for the maintenance work to cover the bribery
costs.
Respondent Y denied the charges of corruption and bribery. It also filed a
counterclaim for a declaration that it was entitled to retain the entire contract
sum, arguing that it had performed its obligations under the Maintenance
Agreements and that it was not aware when entering the Maintenance
Agreements of their possible illegality. Restitution would therefore result in
X’s unjust enrichment.
The parties agreed that the dispute be decided by a panel of three ICC arbi¬
trators in London and that the arbitrators apply the law of South Africa to the
merits of the dispute. Terms of Reference were drawn up on 14 June 2001.
By Order of 8 April 2002, the arbitral tribunal denied Claimant X’s applica¬
tion for a Summary Award of the amount claimed, deeming that the matter
should proceed to a full hearing. The tribunal stated in its Order that (1) Y
was responsible for acts of bribery committed by its employees or agents and
(2) Y’s averments of bribery and corruption made in the LC Action would be
taken to constitute admissions in the arbitration.
In its Final Award, the ICC arbitral tribunal affirmed and motivated its
decision in the 8 April 2002 Order not to make a Summary Award.
On the merits of the dispute, the tribunal held that though Claimant X was
entitled to avoid the Maintenance Agreements, which were tainted by bribery, it
was not entitled to restitution of the total sum paid thereunder.
4 Reprinted from the Yearbook Commercial Arbitration

: r-- - - -JLTíVSV.- .-™-
■
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- -w i — -ITT-: -.¿.i
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■4
CASE NO. 11307, 2003 ARBITRAL AWARDS

The arbitrators reasoned that the avoidance of the Maintenance Agreements
for illegality did not entitle X ipso facto to restitution of all sums paid. Nor was
restitution required under the condictio indebiti cause of action, which requires
that there is no obligation for payment and that payment is made mistakenly.
Here, the Maintenance Agreements were fully operational at the time of the
payment and their subsequent rescission did not affect the fact that payment was
made for good reason.
Respondent Y argued that Claimant X had received "good and proper value”
for the services rendered under the Maintenance Agreements: full or partial
restitution of the sum paid by X would therefore result in X’s unjust enrichment.
The arbitral tribunal noted that South African law governing restitution is
founded on equitable principles. It therefore examined the parties’ conduct in
order to reach an equitable solution.
On the one hand, Claimant X could be reproached of a “supine or lackadai¬
sical approach to business affairs”, which is recognized in South African law as
an equitable basis to deprive a party of a right to recover monies paid out in
error. The evidence before the Tribunal showed irregularities in the
Maintenance Agreements and in the way in which they were concluded. The
Board of Directors of X, however, “simply went along with the Agreements,
because its Chairman said that the Government had decreed that they should
conclude them”. The directors therefore breached their fiduciary duties in
regard to X. The tribunal added that the matter was made worse by the evidence
in the LC Action indicating that one of the recipients of the bribes was the
Chairman of X.
On the other hand, Y could not be said to have had actual knowledge of the
bribes, as there was no evidence that the manager who acted on behalf of Y for
the conclusion of the Maintenance Agreements and the Consultancy Contract
was authorized to the bribery. The tribunal’s finding in its Order of 8 April 2002
that Y was liable for the wrongful conduct of its employees was not the same as
holding that Y was itself to blame.
The tribunal then held that applicable case law dictated that the value to X of
the work done and the materials supplied under the Maintenance Agreements, as
well as the price that X would have had to pay to another contractor, be taken
into account when determining the quantum of the restitution.
Based on the above considerations, the arbitral tribunal concluded that
Claimant X was entitled to avoid the Maintenance Agreements but was not
entitled to restitution of the total sum paid. The monetary value of the benefits
received by X under the Maintenance Agreements (work and materials) should
be deducted from any amount to be repaid by Y.
The arbitral tribunal determined in the last part of its award the value of those
benefits or the lower price. It did so on the basis of the payments made by X to Y
Reprinted ftom the Yearbook Commercial Arbitration 5

ARBITRAL AWARDS CASE NO. 11307, 2003
under the Maintenance Agreements, minus Intermediary A’s commission fees,

since no other reliable evidence was supplied.
The tribunal finally awarded interest according to the relevant provision in the
Maintenance Agreements - which provided for interest at the New York prime
overdraft rate plus 2% per annum - and exercised its discretion under the ICC
Rules and the laws of South Africa and England not to follow the general rule
that costs follow the event and order that the costs of the arbitration be borne by
the parties in equal shares.
Excerpt
(....)
[1] “A list of issues was set out in the Terms of Reference, pursuant to Art. 18,
Rule 1(d) of the ICC Rules. A further issue was subsequently added by thé
parties in an addendum . . . and so the complete list of issues reads as follows:
(1) Were the Maintenance Agreements tainted by bribery and corruption, as

alleged?
(2) If so, was this done at the instance, or with the knowledge of, the
Respondent?
(3) To what remedy, if any, is the Claimant entitled?
(4) Interest.
(5) Who is to bear the costs of the arbitration and the legal fees and expenses of
the parties and, of these are to be shared, in what proportion?
Addendum:
(6) In any event has there been unjust enrichment or has the Claimant received
good and proper value by way of the Respondent’s services?”
I. RELATED COURT PROCEEDINGS IN COUNTRY Z
[2] “In parallel with the present arbitration, proceedings were taking place in a
lower court of Country Z (the LC Action). These proceedings were commenced
on 23 October 1998 by Intermediary A against Y for the payment of commis¬
sions alleged to be due. These proceedings form a background to the present
arbitration and a brief account of them is necessary. This is particularly impor¬
tant in view of certain rulings as to the issue of bribery and corruption which
have been made by the Tribunal in the course of this arbitration and which are
referred to later in this Award.

[3] “In the LC action, Intermediary A claims that on 11 May 1994 in Paris,
represented by I’s counsel, it concluded a written agreement with Y, represented
by Y1, in terms of which Intermediary A would negotiate the final selling price
at which Y was to supply services to X. Intermediary A was to provide
professional inputs and guidance on the structuring and compilation of business
plans and was to ensure that the required action was taken to promote these
business plans. Intermediary A was to give advice in respect of labour, economic
and political conditions in Country X and was to provide other assistance as
specified. Intermediary A was to raise invoices to effect such payment from X as
might be required and was to travel to and from X’s place of business to promote
smooth operations. Intermediary A alleges that prior to the conclusion of the
agreement, Intermediary A introduced X as a potential customer to Y for the
provision by Y of maintenance services on aircraft flown by X and that Y agreed
to pay a commission in respect thereof. Y denied that Intermediary A intro¬
duced X as a potential customer and pleaded that during 1992 Y and X had
already negotiated with each other regarding the provisions of certain mainte¬
nance services on aircraft flown by X.
[4] “Y concluded technical contracts with X for the provision of maintenance
services to its aircraft. On 11 April 1994, Y and Intermediary A agreed that a
commission of 22.35% would be payable in respect of one kind of aircraft
contract and a commission of 20.46% would be payable in respect of another
kind of aircraft contract. Y in fact provided technical services to X and from time
to time paid Intermediary A commission according to the aforesaid percentages
on a monthly basis, up to and including February 1998.
[5] “On payment from Y not being forthcoming, the LC action was instituted
in October 1998. On 22 January 1999, Y pleaded in this action that whilst the
Intermediary A contract was concluded as alleged, it was null and void because it
was only a purported agreement and was entered into in order to channel
corrupt payments to senior employees of X and to senior government officials
in Country X in order to influence them as the people responsible for awarding
contracts by X. Consequently, the purpose of the purported agreement and
the payments made under it were corrupt, the agreement constituted bribery
and was contrary to public policy. Y cancelled the purported agreement on
30 November 1998, with effect from 28 February 1998.
[6] “In a counterclaim, Y claimed that pursuant to the purported agreement it
had paid [a certain sum] to Intermediary A, which was unjustly enriched in this
regard. Alternatively Y claimed that Intermediary A had failed to render any of
the services that it had undertaken to render, but that Y in the bona fide and
reasonable but mistaken belief that commission was due to Intermediary A had
effected the payments which were now reclaimed.
Reprinted from the Yearbook Commercial- Arbitration 7

[7] “The principal argument put forward by Y in the LC action is that the
contract with Intermediary A was, in effect, a sham. It was intended as a method
by which bribes could be passed from Y to senior staff and senior government
officials of Country X, either as an inducement or as a reward for placing the
Maintenance Agreements with Y. In short, the contract with Intermediary A
was void for illegality.
[8] “On 26 June 2001, Intermediary A asked for Further Particulars of Y’s
pleadings. Y replied on 18 July 2001 .... The following questions (by
Intermediary A, the Plaintiff in the action) and the corresponding answers
(by Y, the Defendant in the action) are set down in the documents exchanged
between the parties. They illustrate clearly what is said to have taken place:
‘2.1 Question
Is it alleged that “corrupt payments” were, in fact, "channelled” (sic) by
means of payments made by [Y] in terms of the commission agreement
which is Annexure A to the particulars of claim (“the commission agree¬
ment”)?
Answer
[Y] paid commissions to [Intermediary A] in terms of the commission
agreement. [Intermediary AJ thereafter made the corrupt payments
referred to in this paragraph.
(....)
2.4 Question
Who, on behalf of [Intermediary A] “channelled” the alleged “corrupt
payments”?
Answer
Employees and/or agents of [Intermediary A], including II, 12, 13 and 14, as
well as the person(s) who had authority to transfer funds from the plaintiff’s
bank account(s) ....
2.5 Question
To whom precisely is it alleged that such “corrupt payments” were made by
[Intermediary A]? Names of the individuals are required.
Answer
The payments were made to senior personnel of X and senior government
officials of Country X. [Intermediary A] has not discovered any of its
financial records or bank statements and [Y] is presently unable to identify
such persons by name. Corrupt payments were also made to Agent 1, a
person referred to as “the crocodile”, Agent 2 and Agent 3.
2.6 Question
How were such alleged "corrupt payments” made by [Intermediary A]?

!
¡-
§ í:
Answer
By way of bank transfer and/or cheques to the persons concerned or
intermediaries who received such payments for and on their behalf. The pre¬
cise particulars will appear from [Intermediary A’s] financial records and
the bank statements referred to above, which documents [Intermediary A]
refuses to discover.
2.7 Question
Where and when were such alleged “corrupt payments” made by
/ÿ
[Intermediary A]?
Answer
ft [Y] does not know where payment was made, but alleges that payment was
made from the accounts referred to above. The payments were made after
inception of the commission agreement.
2.8 Question
>ÿ
What were the amounts of each of the “corrupt payments” made by
[Intermediary A]?
Answer
[Y] does not know what the precise amounts of the corrupt payments were.
These particulars will appear from the documents which the plaintiff
refuses to discover.
3.1 Question
Who, on behalf of [Y] harboured the alleged corrupt purpose?
Answer
Yl, Y2 and Y3. All of them have since left the employ of the defendant.
3.2 Question
Is it alleged that anyone [on behalf of Intermediary A] was aware of the
alleged corrupt purpose? If so, the names of the individuals are required.
Answer
Yes. Intermediary A’s counsel, 12, 13 and 14.’
[9] “It is plain from this exchange that Y avers in the LC proceedings that it
made commission payments under the agreement with Intermediary A and that
Intermediary A then made ‘corrupt payments’ to senior employees of X and to
officials of the Government of Country X in connection with the Maintenance
Agreements.”
II. SUMMARY AWARD (NO)

[10] "The Claimant applied for a Summary Award of the amount claimed by it
in these proceedings, together with interest and costs.
(ÿÿÿ•)

[11] “The Claimant’s Counsel argued that on the basis of the facts already
before the Tribunal, and of the South African law relating to bribery and cor¬
ruption, the Tribunal should make a Summary Award in its favour. The
Respondent’s Counsel contended that this would be unfair and inappropriate
and that there should be a full consideration of the evidence, as envisaged in the
Hearing that was set to begin on 10 June 2002. After due consideration, the
Tribunal decided not to make a Summary Award [by Order of 8 April 2002].
(....)
[12] “TheTribunal accepted that this was not a case where summary judgment
was being sought on the usual basis that the defence was unarguable, or so
shadowy that it should be given no credence and effectively should be struck
out. Here, and in the experience of the Tribunal, unusually, the application was
made on the basis of the extensive evidential material lodged in [the court pro¬
ceedings commenced by Intermediary A in Country Z],
[13] “In the view of the Tribunal, and after hearing vigorous oral argument in
support of the written briefs, there were three issues which needed to be
addressed.
[14] “The first was the status of the admissions in the LC proceedings. While it is
unquestionable that the position that Y was and is taking in the proceedings is that
the Maintenance Agreements were obtained by bribery, Y maintains its position in
the present arbitration, formally at least, that the bribery is denied. In effect, Y is
facing both ways: it relies on bribery to avoid its contract with Intermediary A and
denies bribery in this arbitration. Such a Janus-like position is difficult for a single
headed body to perform; and the Tribunal was concerned to ascertain whether
authority required it to entertain contradictory propositions of this kind.
[15] "Having considered the authorities that were cited, the Tribunal conclud¬
ed that it does not need to do so. The matter was amply discussed, but the
Tribunal trusts that it will be acquitted of discourtesy if it limits itself to a
short citation from Wigmore on Evidence-1 The question is posed as follows
(at p. 74): ‘.. . what objection could exist to the use of common law pleadings,
filed in other causes (emphasis in the original), and containing statements now
serviceable as admissions?’
[16] “The answer is to be found at p. 76, after a brief review of the history and
leaving aside affirmative pleas in confession and avoidance, and is in forthright
terms:
‘ . . . there is no reason why the plaintiff’s allegations and the defendant’s

substantive replies in avoidance should not be taken for what they purport to
be, namely, absolute utterances. Indeed, any other view is stultifying to the
1. “Wigmore on Evidence, Volume IV (Chadbourn Revision, 1972).”
10 Reprinted ftom the Yearbook Commercial Artiitration

theory of legal proceedings; for it represents the pleadings during the trial of
the cause itself as solemn asseverations upon the faith of which the parties’
rights and liberties are forever adjudged and vindicated, and then proceeds, in
the ensuing cause, to brush them aside as mere academic and unmeaning
disputations, idle feats of forensic logic. Such a view is a travesty upon the
facts. That the pleadings in prior causes, then, can be treated as the parties’
admissions, usable as evidence in later causes, must be conceded ’
The Tribunal respectfully agrees.

,v [17] “The second issue that needed to be addressed concerned the degree of
r,~ responsibility of Y for such acts of bribery as might be committed by its servants
Ó- or agents in the course of their employment. Here the distinction is between the
situation where the agent or employee is about the business of the principal and
where the same is off ‘on a frolic of his own’. Again, the Tribunal had the benefit
of extensive discussion; and again it is to be trusted that no discourtesy will be
imputed to the Tribunal in deciding to focus its response and not address all the
authorities that were cited.
[18] “It appears to the Tribunal that two citations are relevant and unarguable.
The first is a proposition which includes a succinct and luminous quotation. The
proposition comes from Mkize v. Martens, 1914 AD 382, and the quotation is
one that appears regularly in the relevant cases:
‘But perhaps the most satisfactory statement of it is that given by Pollock,

Torts (8th Ed, p. 78) founded upon a pronouncement of Chief Justice Shaw,
of Massachusetts: “I am answerable for the wrongs of my servant or agent,
not because he is authorized by me or personally represents me, but because
he is about my affairs, and I am bound to see that my affairs are conducted
with due regards to the safety of others”. However that may be, we may, for
practical purposes, adopt the principle that a master is answerable for the
torts of his servant committed in the course of his employment, bearing in
mind that an act done by his servant solely for his own interests and pur¬
poses and outside his authority, is not done in the course of his employ¬
ment, even though it may have been done during his employment. Such an
act cannot be said to have taken place “in exercise of the functions to which
he (the servant) is appointed”.’
[19] "And in S v. Bannur Investments (Pty) Ltd 1969 (I) SA 231 (T), in a
passage which begins with that same quotation from Pollock, the Court
.observed this:
‘Provided the servant is doing his master’s work or pursuing his master’s
ends he is acting within the scope of his employment even if he disobeys his

master's instructions as to the manner of doing the work or as to the means
by which the end is to be attained. A servant may even omit to do his
master's work, and if such omission constitutes a negligent or improper
performance of his master’s work and causes damage, the master will be
legally responsible for such damage. Consequently, a servant can act in
disobedience of his master's instructions and yet render his master Hable
for his acts.’
The Tribunal accordingly concluded that Y was responsible as a matter of law

for any acts of bribery committed by its servants or agents in the course of their
employment.
[20] “The third issue that needed to be addressed was whether, in the light of
the conclusion of the Tribunal on the first two issues, X should have a summary
award in the full amount of the claim on the basis of the material adduced by Y in
the LC proceedings.2
[21] “The Tribunal considered that a decision as to the amount of any resti¬
tution to X was not appropriate for summary determination. Rather it should be
determined in the light of all the facts and circumstances which each party might
wish to put forward. Accordingly, the Tribunal decided to refuse the application
for a Summary Award and to let the matter go forward to a full hearing.
[22] “Nonetheless, in the interests of efficiency, and in the Hght of the very full
briefing and argument that was provided to the Tribunal, the Tribunal consid¬
ered it appropriate to identify those issues on which it considered that it needed
no further assistance from the parties, and this it did in its Order refusing the
application for a Summary Award. It hereby confirms its rulings on those issues
by this Award.
[23] “The Tribunal's Decision refusing the application for a Summary Award
was set out in the Order made by the Tribunal on 8 April 2002. .. . [I]t is worth
repeating what was said in para. 4 of the Order. This read as follows:
‘4. On the basis of the legal arguments which the Tribunal has read, heard
and considered in connection with the application for a Summary Award,
the Tribunal considers that it would be helpful to the parties and will save
time and money at the Hearing if the Tribunal now indicates that in its
judgment:
(i) The Respondent is responsible as a matter of law for any acts of bribery
committed by its servants or agents in the course of their employment; and
2. "In the light of the fact that an Award would take time to deliver, by reason of the meticulous
procedures of the International Court of Arbitration, with the consequent loss of the June hearing
date, X disclaimed any wish for a partial award in its favour."

si
v¡
CASE NO. 1 1307, 2003 ARBITRAL AWARDS
(ii) Relevant averments of the fact of bribery and corruption made by or on

behalf of the Respondent in its affidavits or pleadings in the LC proceedings
will be taken to constitute admissions in this arbitration.’”
III. FINAL AWARD
[24] “This case raises important principles of South African law concerning
the effect of bribery and corruption upon a contract which has been performed
and for which payment has been made. The written and oral evidence before the
% Tribunal is abundant, but not all of it is relevant to the issues raised by this case.
■3 Accordingly, the Tribunal will first set out its views on the relevant principles of
South African law, in order to focus more sharply its discussion and consider¬
ation of the evidence before it.”
1. Bribery and Consequent Remedies
[25] “Forty years ago, as sole arbitrator in an ICC arbitration, the distin¬
guished Swedish lawyer Judge Lagergren, decided that a dispute arising out
of an agreement which was allegedly for the payment of bribes was not capable
of being resolved by arbitration. Neither a court nor an arbitral tribunal could
sanction such an agreement: ex turpi causa actio non oritur. The position is
different now. The modern practice is for arbitrators to receive submissions
and evidence from the parties, counsel and witnesses and then decide what
award to make.3
[26] “In the present case, bribery was undoubtedly involved. What effect does
this have on the rights of the parties as a matter of South African law? In
Plaaslike Boeredienste (Edms) Beperk v. Chemfos Beperk 1986 (1) 819 (AD),
the South African Appellate Division considered the fact that under English
law the mere payment of a bribe was enough to raise an irrebutable presumption
that the agent was influenced by the bribe, but held that there was no such
presumption in South African law. The Court added that considerations of
the kind that led to the acceptance of an irrebutable presumption in English
law could possibly, in South African law, justify the view that where it appears
that one party to an agreement has given a bribe to the agent of the other party,
3. “See Redfern and Hunter, Law and Practice of International Commercial Arbitration (Third
Edition, Sweet & Maxwell at para. 3-27).”

the former bears the onus of proving that his bribery did not influence the agent
and his principal.
[27] "The South African Appellate Division, in analyzing the English deci¬
sions, said that when a bribe takes place prior to the contract, it is not a fraud that
is committed. Howevér, the law views bribery as an immoral and wrongful act
and thus cannot allow the briber to enforce the agreement or the other party to
be bound thereby. The right of a principal to repudiate an agreement obtained
by the bribing of his agent is not based on fraud, but rather on the fact of bribery
per se.
[28] “As appears from Cbemfos, and the South African case of Mangold
Brothers v. Minnaar & Minnaar 1936 TPD 48, the mere payment of a bribe
gives rise to a right to repudiate the contract, whether or not the agent was in fact
influenced by the bribe.
[29] “In Davies v. Donald 1923 CPD 295 and in Mangold Brothers Limited
(supra) the court allowed the purchasers of goods to resile from the sales
concerned because of bribery and ordered the sellers to repay the purchase
prices to the purchasers against return of the goods sold. In both these cases,
the contracts were avoided or rescinded, and the purchasers received their
money back. In return, they had to return the benefits they had received -
namely, the goods they had purchased.
[30] "The Tribunal now turns to deal with the question of whether or not a
tender of the benefits received is an integral part of any entitlement to restitu¬
tion. Y, as has been seen, argues strongly that it is. X argues that it is not; and
indeed X’s primary contention is that having avoided the Maintenance
Agreements, it is entitled ipso facto to restitution of all sums paid.
[31] “In considering this issue, the Tribunal starts by distinguishing between
contracts that are void ab initio and contracts that are voidable, at the option of
one or other of the parties. In South African law, an agreement is void for
illegality if the making or the performance of it, or the ultimate purpose of
both parties in contracting, is prohibited by statute or common law - that is
to say, if it is contrary to public policy or is contra bonos mores. (See Robertson v.
Randfontein Estates Gold Mining Company Limited 1925 AD 173 at 203). An
example of an agreement being illegal because the making of it is prohibited, is
the sale of merchandise prohibited by statute. An example of illegality when
performance renders it so is an agreement to commit a crime. An example of
both parties intending to further a purpose contrary to law is afforded by the
case of a person giving a prosecutor an inducement not to prosecute for a crime.
t Such contracts are void because they are based on a turpis causa.
[32] "In contrast with an illegal contract is a contract which, prima facie, is
valid but is tainted by some illegality rendering it voidable at the instance of one
or more of the parties.

F
i;
ft CASE NO. 11307, 2003 ARBITRAL AWARDS
[33] “In South African law, the effect of bribery on a contract is to rentier that
contract voidable; and if the contract is rescinded by an innocent party, what was
previously an existing contract is set aside. This was confirmed in Plaaslike
Boeredienste (Edms) Beperk v. Cbemfos Beperk 1986 (1) SA 819 (AD) at 848
A to E.
[34] “The avoidance of a contract must be distinguished from restitution. By
rescinding, the innocent party seeks set to aside the contract; but in asking for
restitution of whatever he has performed to the date of rescission, he must either
make or tender restitution of that which he has received. (See Marks Limited v.
Laughton 1920 AD 12 at 21). Referring to this authority in Feinsten v. Niggli
1981 (2) SA 674 (A) 700 F to H, Trollip JA said:
%
‘The object of the rule is that the parties ought to be restored to the respec¬
tive position they were in at the time they contracted. It is founded on
equitable considerations. Hence, generally a court will not set aside a con¬
tract and grant consequential relief for fraudulent misrepresentation unless
the representee is able and willing to restore completely everything that he
has received under the contract, The reason is that otherwise, although the
representor has been fraudulent, the representee would nevertheless be
unjustly enriched by recovering what he had parted with and keeping or
not restoring what he had in turn received, and the representor would
correspondingly be unjustly impoverished to that extent.’
[35] “In Lebedina v. Schecbter and Haskell 1931 WLR 247, Greenberg J. held
that where a contract is voidable on the ground of fraud, and is for that reason
terminated by the defrauded party, he must tender return of all benefits received
by him under the contract. If such tender is made after the date of repudiation,
the repudiation is effective only from the date of the tender.
[36] "The duty to make restitution is not an unqualified or absolute one. There
are a number of exceptional cases where restoration is excused - or if full res¬
titution cannot be made, the deficiency can be made good by means of a mon¬
etary substitution. In Extel Industrial (Pty) Limited and another v. Crown Mills
(Pty) Limited 1999 (2 SA) 719 (SCA) at 733 the Supreme Court of Appeal said
that in a contract for work done and materials supplied, a party is not precluded
from resiling from a contract in the case of fraud, simply because the contract has
been performed in full. The Supreme Court of Appeal said that the law is that if
restoration in specie is no longer possible, restitution must be made byway of a
pecuniary substitute.
[37] “In Harper v. Webster 1956 (2) SA 459 (FC) Clayden FJ pointed to cases
—
where restitution was not possible such as where the thing delivered has
perished due to a defect {Marks Limited v. Laughton 1928 AD 12); where the
Reprinted from trie Yearbook Commercial' Arbitration 15

thing has been disposed of in the manner contemplated and its proceeds are
offered (Rav v. Venter’s Executors 1918 AD 482); where the thing was pardy
destroyed in finding out its quality (Theron v. Africa 1893 (10 SC 246); and
where the thing has become lost and valueless in using it in the manner con¬
templated (African Organic Fertilizers and Associated Industries Limited v.
Sieling 1949 (2) SA 131 (W). Clayden FJ concluded:
‘The legal position in this case therefore appears to me to be as follows. That

as the plaintiff is seeking restitution of what he has been induced to give by
fraudulent misrepresentation the general rule applicable is that he must
restore what he has got. This is based on an equitable principle similar to
that adopted in the English and Scottish courts. The South African courts,
where justice requires it, have excused the purchaser from the need to make
restitution, either wholly or partially, in a number of varying circum¬
stances. The general rule that the person seeking restitution must himself
make restitution governs but relief should not be denied when substantially
that restitution can be made and, insofar as it falls short of complete res¬
titution, compensation in money can make good the deficiency.’
[38] "In the Extel case there is a departure point in the recognition of the
fundamental distinction between the right to rescind a contract induced by
bribery and the entitlement of the innocent party to claim restitution. The
innocent party, if it has just cause to set aside the contract, can do so without
tendering to restore. As soon as the innocent party enforces the remedy of
restitution, however, it becomes necessary for that party either to tender to
restore the benefits received under the contract which is now set aside or to
explain why it cannot do so and tender a monetary substitution. The South
African Supreme Court of Appeal explained this principle in Extel as being trite.
[39] "In Spence v. Crawford, 1939 (3) AER 271 at 288-289, Lord Wright said:
‘ . . . The remedy is equitable. Its application is discretionary, and, where

the remedy is applied, it must he moulded in accordance with the exigencies
of the particular case. . . . The court must fix its eyes on the goal of doing
what is practically just. . . . Restoration, however, is essential to the idea of
restitution. . . . Though the defendant has been fraudulent he must not be
robbed, nor must the plaintiff be unjustly enriched as he would be if he both
got back what he had parted with and kept what he received in return. . . . ’
[40] “Roman Dutch law also emphasizes the reciprocal nature of an order of
restitutio in integrum: Vide De Groote Inleydinge 3.48.5.

-— ;.-T" -.Tri TV-
[41] “X’s approach was that on proof of the bribery ipso facto the whole
amount paid under the Agreements by X had to be refunded by Y, subject to
Y being able to prove on a basis of unjust enrichment that it should be compen¬
sated. X went on to submit that the conduct of Y then becomes important and if
a Court finds it reprehensible enough it would non-suit Y on such an unjust
enrichment claim.
[42] “There are three situations. First, if a briber sues on a contract tainted by
bribery, a court will non-suit the briber by reason of turpis causa. Secondly, is if
the wrongdoer sues instead on the basis of unjust enrichment, the Court might,
depending on the circumstances and the briber’s conduct, still non-suit him or
grant him some compensation. The third situation is where the innocent party
sues for restitution. In general, he must restore the benefits he has received under
the contract, and if he cannot, he must make a monetary substitution - otherwise
the guilty party will be 'robbed’. In other words, the innocent party would be
unjustly enriched by receiving back what he had parted with and keeping what
he had received.
[43] “X was obliged, on the many cases quoted above and finally on the Extel
judgment, to tender to restore the benefits received under the Agreements in
claiming restitution. Such a tender was not necessary in regard to its rescission of
the Maintenance Agreements, but it is trite law that it is necessary when resti¬
tution is claimed by the innocent party.”
2. “ Condictiones ”
[44] “As set out above, both parties claimed on the basis of unjust enrichment.
X did had so as an alternative to its claim that Y had to repay the full US$ 55.5
million because of the bribery. Y did so as a counterclaim, so as to retain the
moneys paid to it under the Maintenance Agreements if X’s main contention
was upheld by the Tribunal. In regard to Y’s counterclaim, X contended that the
only basis on which Y could retain the moneys paid to it or part thereof was by
proving that X would be unjustly enriched by being repaid the moneys or part
thereof. In its reply to Y’s Request for Further Particulars for the purposes of the
arbitration hearing, X stated: ‘[X’s] claim is a personal action resting in the
Claimant ( condictio ob turpem causam) in terms of which it is entitled to recover
the money paid to [Y] consequent on [Y’s] admitted immoral conduct (ob fac¬
tum continent turpitudimem).’
[45] “It is a requirement of a payment made indebiti that there was no obli¬
gation for the payment. In the present case, it is common cause that there was
an obligation to make payment since at the relevant time the Maintenance
Agreements were fully operational. The subsequent rescission of the
Maintenance Agreements did not convert the payments made for good reason

at the time into payments made by mistake. Accordingly this is not a case (as X
pleaded) of condictio indebiti. The condictio indebiti applies where the contract
is void by reason of some formal invalidity - for example, failure to comply with
the South African law that the purchase and sale of immovable property must be
in writing. See M C C Bazaar v. Harrison & Jones (Pty) Limited, 1954 (3) SA 158
(T) at 162.
[46] “Nor is this a case in which the condictio ob turpem causam is applicable.
First, it was not pleaded and secondly, this cause of action relates only to illegal
contracts which are a nullity because of their illegality. For this condictio to
obtain, the contract must be neither enforceable by the innocent party (if
any) nor at the instance of the guilty party. Consequently, this cause of action
can only be brought where an agreement is void for illegality: see LAWSA Vol. 9
Enrichment, p. 70 para. 83.
[47] “In short, neither of these pleas was open to X on the facts of this
arbitration.”
3. Pleadings and the Terms of Reference
[48] “In the Request for Arbitration which began these arbitral proceedings, X
advanced alternative claims, based on the proposition that the Maintenance
Agreements had been procured through bribery and corruption. The first
claim was for restitution of the entire sum of US$ 55,553,866.03 which had
been paid to Y. The alternative claim was for restitution of the sum of US$
9,887,480.38, being the amount claimed to be payable by Y to Intermediary
A for what X alleged was ‘part of the scheme of bribery and corruption’
[footnote omitted]. It was alleged that the sums payable to Y, under the
Maintenance Agreements had been inflated by this amount and that accordingly
Y ‘was unjustly enriched at the Claimant’s expense in such amount’ [footnote
omitted]. These alternative claims were repeated in X’s Statement of Claim
dated 23 May 2001.
[49] “In its Answer to the Request for Arbitration, Y averred that it had
performed all its obligations under the Maintenance Agreements and had
given good and proper value thereunder; that it had not been unjustly enriched;
and that X had received the services which it required and for which it con¬
tracted at a fair cost. Y further averred that if X was to succeed in the arbitration,
it would receive the full value of the services rendered without payment and that
such benefit would, in the circumstances, be inequitable and not in accordance
with the law. This averment was repeated in Y’s Statement of Defence dated 20
June 2001.
[50] “Accordingly there was from the outset an issue between the parties as to
whether or not X had received ‘good and proper value’ for the services rendered

z ~ :•:• -- -y.!
— \ÿz
■■'
t-

under the Maintenance Agreements; and whether, in the words used by Y, an
award to the effect that Y should ‘repay to the Claimant the amount of US$
55,553,866.03 or any part thereof (emphasis added) would have the effect of
enriching X at the expense of Y, since Y had in fact performed services under the
allegedly illegal Maintenance Agreements.
[51] “As the arbitral proceedings continued, the extent to which the
Maintenance Agreements might be said to have contained costs which were
‘excessive’ or ‘unjustified’ was fully explored. When the parties’ experts met
in Paris, three days before the beginning of the hearing in London on 10 June
2002, they did so to see to what extent they could reach agreement on the costs of
-ÿ
such work. There was no discussion about the value of the work and materials to
X nor what costs would have been incurred by another contractor. In fact in
regard to the latter, it was expressly recorded by the experts that there was no
.ï final agreement ....
[52] “Finally, in their post-hearing briefs of 31 January 2003 and in their Reply
briefs of 24 February 2003, the parties made detailed submissions as to what might
be called the ‘proper costs’ of the Maintenance Agreements [footnote omitted],
but no submissions on the value of the work and materials or the price likely to
have been charged by another contractor. As set out above, ‘costs’ - as opposed
to ‘value’ and ‘price’ - are relevant to the alternative claims of unjust enrichment of
Y and the conditional unjust enrichment claim of Y, whilst ‘value’ and ‘price’ are
relevant to X’s main claim, as will appear more fully hereunder.
[53] “Y argued vigorously that to enforce the remedy of restitution, it was
necessary for X to make a tender in respect of the benefits received under the
contract, or to give an explanation and excuse for its failure to do so [footnote
omitted]. Y contended that where a claimant sought restitution without
providing a lawful justification for failing to make a tender, there is no claim
in law; and that failure to acknowledge the benefits received and to tender their
restitution ‘precludes the ventilation of the relevant issues in that regard!’
(emphasis added) [footnote omitted]. Finally, Y argued that X’s claim cannot
be rescued, by an amendment to its pleadings (which in any event has not been
sought) and that accordingly the claim must fail at the outset [footnote omitted].
In short, Y argued for the claim to be struck out.
[54] “Y’s case on this point is well argued, although it comes very late in the
day. It raises an important question as to the way in which X’s case has been
pleaded; and it raises a further important question as to whether or not a tender
of the benefits received is an integral part of any entitlement to restitution and if
so, whether the Tribunal has evidence on which it can come to a proper decision.
[55] “The Tribunal will deal first with the issue as to the way in which the
claim has been pleaded.

[56] “Rules of pleading which may govern the conduct of litigation in the state
courts of a particular country have no application to international commercial
arbitrations. What is required in such arbitrations is first, that the claims put
forward by the parties come within the jurisdiction of the arbitral tribunal; and
secondly, that the substance of those claims - and the defences to them - is made
clear, so that the parties and the arbitral tribunal have a proper opportunity of
dealing with them.
[57] "In the present arbitration, it is the Tribunal’s view that X has satisfied
both these requirements. The Terms of Reference, which govern the jurisdiction
of the Tribunal, make it plain in the List of Issues that one of the issues that the
Tribunal has to decide is: ‘To what remedy, if any, is the Claimant entitled?’; and
a second issue is: ‘In any event, has there been unjust enrichment or has the
Claimant received good and proper value by way of the Respondent’s services?’
Thus, from the outset, the issue as to the value to be attached to the services
rendered under the Maintenance Agreements has been before the Tribunal, with
the assumption that X might be required to account for the value of those
services as part of any order for restitution that the Tribunal might make.
[58] "It is true that, as its primary submission, X claimed to be entitled to
restitution of all the monies paid under the contract, without making any offer
of tender. Nevertheless X recognized in its pleadings and evidence, as described
above, that X might not be entitled to restitution of the total amount claimed; and
accordingly there was, as it were, an implicit tender in respect of benefits received.
[59] “Much of the evidence that has been given during the course of the arbi¬
tration by the witnesses, including the expert witnesses, has been concerned with
endeavouring to establish the ‘proper costs’ of the Maintenance Agreements, so
as to put a monetary value on the benefits received by X under the Agreements.
Accordingly, whilst the Tribunal recognizes that X’s alternative case could and
no doubt should have been put more clearly, the Tribunal does not accept that it
was pleaded in such a way that the claim necessarily fails at this stage.
[60] “In an English or South African court, with its own special rules as to
pleading, it is probable that X’s case would have failed at the outset, unless leave
to amend had been sought and given. But special rules of pleading do not apply
in ICC arbitrations. It is sufficient, as has been said, if the issues fall within the
Terms of Reference, as they do here, and if the parties have a proper opportunity
of dealing with them, as they have had here.”
4. Conduct of the Parties
[61] “The South African cases that have been cited in the previous section of
this Award make it plain that the law governing restitution is founded on equi¬
table principles. The task of the Court, or Tribunal, is to determine what is

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i CASE NO. 11307, 2003 ARBITRAL AWARDS

ív
required in order to do justice as between man and man; and in so determining,
the Court or Tribunal will necessarily have regard to the conduct of the parties
■
and its own judgment as to the extent to which, legally or morally, those parties
must bear responsibility for the bribery that has taken place.”
I
a. Claimant’s conduct
[62] “A supine or lackadaisical approach to business affairs has always been

recognized in South African law as an equitable basis to deprive a party of a right
to recover monies paid out in error. The evidence before the Tribunal . ..
pointed to irregularities in the Maintenance Agreements, and in the way in
which they were concluded, which should have suggested to the Board of
Directors of X that the Agreements might be tainted by corruption or wrong¬
doing. Yet it seems that the Board simply went along with the Agreements,
because its Chairman said that the Government had decreed that they should
conclude them. This was a clear abrogation of the directors’ fiduciary duties in
regard to X, in that it appears that they did not apply their minds to whether the
Agreements ’should or should not be concluded in the best interests of X, having
regard to the irregularities which pointed to the possibility of something’ being
wrong. What makes matters worse is that the evidence in the LC Action indicates
that one of the recipients of the bribes was none other than the Chairman of X.
[63] “Further, it appears from the evidence of 12 [X’s expert on the mainte¬
nance and repair of aircraft], that he may have supported and advanced moneys
to assist Intermediary A in its litigación against Y. That action has apparently
come to a standstill, but 12 was not prepared, on legal advice, to answer the
question whether or not there was an arrangement between X and Intermediary
A to split any proceeds obtained in this arbitration. 12 said, however, that he was
hoping to receive payment from Intermediary A.
[64] “At the hearing of 12 evidence in London, Counsel for Y asked 12, via a
video link ... on what terms 12 had contributed financially to the LC action. 12
stated that the terms were that if Intermediary A was successful, Intermediary A
would pay 12 his outstanding fees and expenses, which would amount to about
one-third of what Intermediary A was claiming in the LC action .... The
members of the Tribunal are not satisfied that X played open cards with
the Tribunal. Notwithstanding, on the evidence before it, this Tribunal cannot
make a finding that the directing mind of X, namely its Board, had knowledge of
the bribery and that consequently X is debarred from claiming restitution.”

b. Respondent’s conduct
[65] “Did Y instigate or have knowledge of the bribery? This was one of the
issues raised in the Terms of Reference. The person acting on behalf of Y to
conclude both the Maintenance Agreements and the Agreement with Inter¬
mediary A was Y1, who was then the Deputy Chief Executive of R [a subsidiary
of Y]. For it to be said that Y (or R) as a corporate entity had knowledge of the
bribery, it would have to be established that an appropriate authority within the
corporation authorised such unlawful activity by Yl. The dishonest employee
could not have conferred this authority upon himself, particularly as the
evidence established that Y had a firm policy against corruption. The evidence
showed that there were only two persons who could have authorised Yl in this
regard, either the Chief Executive of R, W6, who gave evidence before the
Tribunal, or the Board of R or Y itself. There is no evidence to suggest that
they did so.
[66] “W6 himself, in giving evidence before the Tribunal said:
‘In addition, perhaps Intermediary A should say that the whole question of
any form of corruption and bribery was not something that perhaps was left
unsaid or not discussed. It was specifically discussed in the company at
strategic level, in the Board and in the Management Board, because a lot
of the market that Y was seeking to enter into to greater extent into our sub¬
continent . . . and into the whole of the continent by means of R in various
forms, was an area that tended to be known for its vulnerability to this type
of thing. And a decision was specifically taken that despite the fact that it
was known that other companies gained entrance into that market by using
shadowy tactics, our company would never do that. Coldly and coolly, it
was specifically stated and seen throughout the organization that would not
be done. We would rather miss out on specific opportunities than run the
risk of entering into some corrupt or shadowy form of access taking.
[footnote omitted]’
[67] “This statement, although self-serving, sounds credible; and moreover,

when there was suspicion of bribery, the company itself instituted an immediate
and costly investigation by its internal auditor W3, which also included other
professionals, to try and arrive at the truth. This caused Y to plead in the
Intermediary A case the bribery which has been canvassed above.
[68] “It is one thing to hold, as the Tribunal has done, that a company is liable
for the conduct of an employee on a vicarious basis, but it is another to hold that
the company is itself guilty of wrongful conduct. The wrongful conduct of an
employee cannot amount to moral blameworthiness on the part of an innocent

Tir.:.-'
-
L-ÍS?---' V" "- r !ÿ f— i
’:* *
-:

employer. While, as a matter of law, the Tribunal has concluded that the conduct
of Y1 made Y vicariously liable for the bribes channelled through Intermediary
A, and that it was liable with Intermediary A as its agent, this is not a finding rhat
Y had knowledge of the bribery.
[69] “The Tribunal concludes that neither R nor Y had any actual knowledge
of the bribery. It cannot be said that Y1 was the directing mind of R, or Y. The
directing mind was the Board of Directors of the corporation, or its Chief
Executive, and neither had any such knowledge.”
5. Measurement of Quantum
f
V.
[70] “. . . [T]he parties’ expert witness statements and the ‘Agenda for the
meeting of experts’ focused on the cost of the work done and the materials
1
supplied to X by Y. This was because of X’s contention that the very fact of
bribery entitled it to repayment of the moneys it had paid to Y; and that if Y was
to retain any of these moneys, it had to do so on the basis of X’s unjust enrich¬
ment. X argued (correctly) that in claiming on the basis of unjust enrichment, Y
could only claim its costs and not profit: see for example Skywood ( Private )
Limited v. Peter Scales ( Private ) Limited, 1979 (1) SA 570 R where Beck J. said:
‘It is clear that the compensation to be awarded to the Plaintiff is not to

include any measure of profit. Cases where compensation has included
profit, and where reference has been made to the doctrine of unjust enrich¬
ment, will usually be found not to be instances of that doctrine but rather to
be instances of tacit mandate.’
[71] “On X’s main claim, Y contended that X had to tender to restore the
value of the work done and materials supplied or the price likely to have been
charged by another company. The value of the work done would necessarily
include an allowance for profit (and overheads) since no contractor would have
done the work and supplied the materials at cost price.
[72] “In Excel, the Court held that in a contract for work done and materials
supplied, which had been performed in full - so that the work and materials
could not be returned on a tender basis - there must be restitution by way of
pecuniary substitution. The Court said:
‘Since the value of that substitute may well have to be determined with
reference to the contractual standard, the rescission of the contract followed
by such restitution would leave the parties in exactly the same position as if
the contract had been performed on both sides. The rescission would,
Reprinted from the Yearbook Commerciat Arbitration 23

therefore, have no practical effect except to the extent that it may initiate a
claim for damages.’
In making this statement, the Court was commenting on the judgment in Uni
Erections v. Continental Engineering Company Limited 1981 (1) SA 1240 W,
where the Court said:
‘Once the benefit to be returned has perforce to take the form of being an
entirely pecuniary substitute, calculated by assessing its value to the
Defendant or the lesser amount that it would have paid another contractor,
one is no longer dealing with restitution but with damages and it is damages
that must be claimed and proved.’
Accordingly, what has to be established is the value to X of the work done and
materials supplied under the Maintenance Agreements or the lesser amount that
X would have had to pay another contractor.”
6. Conclusion
[73] “In the Judgment of the Tribunal, X is entitled to avoid the Maintenance
Agreements, which were tainted by bribery, but it is not entitled to restitution of
the total sum paid by it of US$ 55,553,886.03. X received benefits under the
Maintenance Agreements, over a period of five years, and restitution in specie
being impossible, the monetary value of those benefits or the lower price that X
would have had to pay to another contractor must be deducted from any amount
to be repaid by Y. In practice, this means that the Tribunal must do the best it can
in order to determine the value of the benefits received by X or the lower price it
would have paid to another contractor.”
IV. QUANTUM
1. Terms of the Maintenance Agreements
[74] “Work done and services rendered under the Maintenance Agreements
accounted for a substantial part of the moneys paid by X to Y during the life of
those Agreements. In order to understand the value of the work carried out and
the services rendered by Y under the Maintenance Agreements, it is helpful to
have some understanding of what those Agreements required. It would be
tedious indeed to set out the Maintenance Agreements in full, but the following
extracts from the Maintenance Agreement for one type of aircraft will give a

----
••••I H-5-.-TV
-SSSTZÿÿswSSSrÿîtS
useful indication of what was required. This Maintenance Agreement starts with
the following recitals:
‘WHEREAS THE CUSTOMER desires to have its [aircraft] registration
number, fitted with four [engine-type] engines, components, accessories,
and equipment installed, therein and used in connection therewith (here¬
í
inafter referred as ‘THE AIRCRAFT’) maintained by R
AND WHEREAS R is prepared to maintain THE AIRCRAFT subject to
the performance of an inspection of THE AIRCRAFT by R staff to deter¬
&ÿ:
mine the current maintenance standard and subject to the terms and con¬
:: ditions set out hereunder.
(....)
3. APPROVED MAINTENANCE SCHEDULE
2.' 3.1 THE AIRCRAFT shall be maintained by R on behalf of THE CUS¬
:r
s TOMER Approved Maintenance Schedule (hereinafter referred to as AMS)
as approved by the Civil Aviation Regulatory Authorities of the Depart¬
ment of Civil Aviation of Country X and Country Z’s Department of Civil
Aviation.
3.2 Prior to commencement of the Agreement THE CUSTOMER shall:
3.2.1 Ensure THE AIRCRAFT logbook is up to date and in accordance
with the provisions of the AMS.
3.2.2 Provide R with a list of all Service Bulletins, Air Directives, Alert
Service Bulletins and all life limited components.
3.2.3 Provide R with the status of mandatory modifications, mandatory
inspections and the corrosion prevention program relating to the ageing
fleet modification and corrosion prevention program.
3.3 R shall compile and, while this Agreement is in force, maintain current
the AMS and obtain the approval of the Airworthiness Authority of
Country X.
4. AIRWORTHINESS
4.1 THE CUSTOMER as the operator and R as the maintenance contractor
of THE AIRCRAFT shall be jointly responsible for ensuring that the
standards of airworthiness prescribed by the Airworthiness Authority of
Country X and Country Z are achieved and maintained.
4.2 R undertakes that the work and the technical functions specific in this
Agreement as the responsibility of R shall be executed in accordance with
ordinary R procedures, inspection programmes, maintenance and overhaul
policies and standards and in accordance with the relevant provisions of the
AMS as applicable.
5. MAINTENANCE AND PRODUCTION PLANNING
5.1 R shall provide the logistical support as defined.
Í"
Reprinted fram the Yearbook Commercial Arbitration 25

:
5.2 R shall carry out scheduled A, B, C and D checks on the aircraft at R’s
maintenance base, airport of City 1. Adequate down time in City 1 shall be
made available for R to perform above checks.
5.3 Ground handling shall be the subject of a separate agreement.
5.4 R shall notify THE CUSTOMER of periodic checks due, modifica¬
tions, Airworthiness Directives (ADs) and special inspections to be accom¬
plished.
5.4.1 R shall use its best endeavour to comply with and accomplish any
work necessary due to the issue of ADs and/or any other mandatory
requirements, as requested by THE CUSTOMER.
5.5 R shall supply for the purpose of co-ordinated maintenance and plan¬
ning the maintenance and inspection work documents, forms and flight
folio documentation.
5.5.1 THE CUSTOMER shall on a regular basis and in advance provide R
with a schedule of proposed usage and movements of THE AIRCRAFT
during the next ensuing six weeks.
5.5.2 THE CUSTOMER shall record all flying times and cycles where
required in maintenance documents. Flying times shall be flying hours
(airborne) as defined in the AMS.
5.5.3 R shall supply equipment and labour required to accomplish said
work to THE AIRCRAFT at R’s maintenance base. R shall notify THE
CUSTOMER six calendar months in advance of the checks that shall be
required on the landing gears or when a compass swing shall be required
and one calendar month’s notice in advance for other checks that shall be
required.
5.6 R staff shall sign for, and where applicable, mark with their approval
stamp, all work done by or supervised by R, as required, on R forms and
work documents in accordance with the provisions of the relevant instruc¬
tions in the R Engineering Procedures Manual.
5.7 R shall be responsible for the issue of Certificates of Safety at the times
prescribed in the AMS and as required by the Airworthiness Authority of
Country X.
(....)
5.11 Major defects due to structural damage or corrosion which can be
attributed to previous maintenance practices shall be rectified as PER CUS¬
TOMER’S request. Cost of labour and material will be for the account of
THE CUSTOMER at rates specified in Clause 17 of this agreement.
(....)
16.4 If by special written agreement THE CUSTOMER requests R to
purchase parts on THE CUSTOMER’S behalf, such parts shall be invoiced

?
to THE CUSTOMER at the Current List Price (CLP) plus costs plus 10%
enhancement charge.
17. AD HOC COSTS
17.1 Labour shall be charged at:
17.1.1 $40 (Forty US Dollars) per manhour for associated engineering
E work, ADs, special inspections, manufacturing of tools, equipment and
aircraft parts, and refurbishment.
R shall review and revise the labour rate in April of each year.
18. SETTLEMENT OF ACCOUNTS
18.1 The sum to be paid by THE CUSTOMER in accordance with the
provisions of the Agreement shall be invoiced monthly or as necessary and
settlement shall be effected within 30 days from date of invoice by means of
a bank transfer or cheque in Country Z currency to account number
[account number and info]. Each payment shall quote the reference
.i [reference info] plus the invoice number(s) being paid.
18.2 In the event of disputed invoice items, THE CUSTOMER shall nev¬
ertheless settle the invoice in full. Disputed items must then be notified to R
in writing and with full supportive documentation within 30 (thirty) days
of payment by THE CUSTOMER of the disputed invoice. R shall inves¬
tigate the disputed item(s) and shall advise THE CUSTOMER within 30
(thirty) days and make the necessary adjustment.
18.3 Interest on late payments shall be charged at the NEW YORK prime
overdraft rate plus 2% per annum payable monthly.’
[75] “The following observations may be made in relation to this Agreement:
(1) The contract between X and Intermediary A may have been a ‘sham’, as it
has been described, but the Maintenance Agreements were real enough.
They imposed a considerable responsibility upon Y to maintain and certify
the airworthiness of the aircraft.
(2) The Agreements provided for additional work to be done as required.
(3) The Agreements provided a machinery (in Clause 18.2) whereby if X was
dissatisfied with the price it was being asked to pay, X could request an
investigation and an adjustment of that price. There was no evidence
before the Tribunal of any such request during the period of the Mainte¬
nance Agreements.”
2. Value of Work Done Under Maintenance Agreements
Ï [76] “The Tribunal has both read and heard a considerable number of argu¬
ments and submissions as to the cost to Y - real or hypothetical - of the work

Í
which Y carried out under the Maintenance Agreements. The principal witness
for Y on this aspect of the case was Wl. . . . W1 was not personally involved
with the Maintenance Agreements but he stated ... in his witness statement of
18 October 2001 that he had a ‘close association with the contract, in the form of,
for example, cost investigations’. Wl submitted that Y’s Tower by the Hour’
charges were financially competitively priced’ and concluded in his witness
statement by saying:
‘Intermediary A submit, on the basis of the foregoing, that the Claimant

derived value for money from these Agreements in that the R met its obli¬
gations under the Maintenance Agreement at very low rates. The aircraft
were maintained to the same quality as R aircraft of similar model and age
and were kept flying subject to scheduled and unscheduled downtime
enforced by normal maintenance requirements of aircraft of that type
and age and, further, R did its best to assist the Claimant to obtain spare
components and engines. The contract rates for the maintenance of the
aircraft were very reasonable and on the low side given the risks associated
with the maintenance with these aircraft.’
[77] “This evidence sounds persuasive, until one remembers that - as is now
admitted - the ‘Power by the Hour’ charges were increased by over 20% so as to
cover the bribes which were to be paid.
[78] “In his first witness statement of 16 October 2001, the Technical Director
of X had very little to say in relation to the costs of the work done by Y. He
said . . . that in or about September 1993, shortly after his promotion to the
position of Technical Director of X, he was summoned to a meeting with the
Chairman of X and was given a written maintenance proposal submitted by
Intermediary A for X’s aircraft and asked to comment on it. He says:
‘Intermediary A’s proposal was of interest to me as my colleagues and I at X
had already thought that it was necessary to ask another competitor supplier to
reduce its charges for maintaining X’s aircraft, which charges we considered to
be unreasonably high.’ He added ... : ‘The maintenance proposal by
Intermediary A for the aircraft reflected charges which were relatively cheaper
than those of competitor supplier.’
[79] “The Technical Director’s principal complaint in his first witness state¬
ment was about the maintenance contract to R, since he felt that this was work
which his staff at X could have undertaken themselves and that if it was given to
R, it would lead to redundancies in his work-force. But he does note ... that R
rejected a proposal by X that the Tower by the Hour’ rate for the aircraft should
be reduced from US$ 880 per hour to US$ 618.

F

[80] “The main attack on the costs of the Maintenance Agreements comes from
12. Thus, in his Second Witness statement of 28 November 2001 ... 12 states ... :
T have read the affidavit of Wl who is known to me. I am generally sur¬

prised with his evidence in his witness statements as it is superficial (in that
it does not reflect the real cost which R incurred in maintaining the X fleet
and completely ignores the fact that major maintenance work was excluded
from the scope of R’s work on the X aircraft) and inappropriately compares
R’s alleged in-house cost to the average cost of other fleets.’
12 then goes into considerable detail as to - for example - R’s internal average
cost of labour; hangar costs; the costs of maintaining the engines, which in his
assessment amounts to more than 50% of the cost of maintaining an aircraft; the
appropriateness of providing for overhead recovery in R’s costs and so forth.
[81] “The Tribunal acknowledges I2’s knowledge and experience of the avi¬
ation industry. However, it is difficult to regard his evidence without ambiva¬
lence. 12 was initially part of the team which acted on behalf of Intermediary A
in negotiating the maintenance contracts with X. There is no indication that at
this time he suggested that the price to be charged by Y was too high! Indeed in a
letter to the Secretary of the President of Country X dated 24 July 1998, 12
referred to the possibility of R leasing an aircraft to X and amongst the advan¬
tages to be gained from this he listed: ‘Getting service from a partner who has
shown that his technical dispatch reliability is above industry standard and is
highly efficient and reliable.’ Eight months later, 12 still apparently considered
that R gave value for money. In a letter of 16 March 1999, to the Technical Vice-
President of R, 12 wrote:
T received a telephone call yesterday evening from Directorl, a former

Technical Director of X, who asked me to let you know the following
unofficially because he has been moved into a different position within
X and his post has been taken over by a competitor supplier employee.
The aforesaid restricts him to speak on behalf of the current Technical
Director officially even though Director 1 is still performing a lot of his
former duties.
1. Director 1 is worried that R is removing all their maintenance equipment
from Country X.
2. Director 1 would like to see the Contract continue till September or the
point of time when the Aircraft will be replaced by another Aircraft;
3. Director 1 is prepared to lobby for a continuation of the Contract also
when the rates will be renegotiated for the period meaning that they will go
up for the future period after the D-Check.

4. A substantial price increase could be achieved because the alternative to
give the maintenance of the Aircraft to competitive supplier will be very
costly, as you know from the quote we provided to you last year.
5. Director 1 would also like to explore the possibility to service the aircraft
which X might get with R, instead of competitive supplier as he clearly sees
the cost advantage when working with R. Such maintenance for the Aircraft
could be similarly structured as the Aircraft Contract of the past. . . . ’
Three days later, on 19 March 1999, 12 wrote to Director 1 to say that

Intermediary A would be prepared to continue with the maintenance of the
aircraft and that ‘this will be still far cheaper than to transfer this maintenance
to any other facility’. The Tribunal will revert to this topic shortly.”
3. Other Work Performed by Respondent
[82] “Work was carried out by X outside the compass of the Maintenance
Agreements: this was the so-called ‘over and above’ work. It was work which X
was called upon to do, during the five years or so that it was responsible for
maintaining Y’s fleet and it was work that . . . was duly invoiced to, and paid by
Y. There is a slight difference between the parties as to the price paid, but it
appears to have been a little over US$ 17,000,000.
[83] “There were other expenses too. For example, there were the costs of R
establishing a team in Country X for the duration of the Agreements. At any
one time there were three to four people stationed in Country X. They were
put there on a permanently foreign outstation basis in terms of their salaries
and their allowances. Wl said that the cost to R of stationing them in Country
X was US$ 1,361,000, a figure which included housing, motor cars and so
forth.4
[84] “A further sum involves the cost of the loan of spares and this was settled
by the experts at US$ 560,000 .... The parties’ experts looked at the costs
incurred by Y in carrying out work on the X aircraft - both under the
Maintenance Agreements and additionally to the Agreements. They reached a
measure of agreement: for instance, that the Maintenance Cost Forecast for R,
which is revised annually ... , offered ‘the best available breakdown, in the
documents presented to the Arbitration, of the various maintenance and engi¬
neering cost factors for the aircraft operations in question’.5 The experts also
agreed, for instance, that ‘more than 50% of the cost of maintaining an aircraft is
-
4. “12 suggested that US $150,000 would be adequate for this a figure which strikes the Tribunal as
being unreasonably low.”
5. “Extracts from the agreed ‘Agenda for the Meeting of Experts’.”

;
;
typically attributable to the cost of maintaining its engines’.6 They agreed that a
reasonable profit margin should be 15%; and that the signature in an aircraft log
book certifies that the work had been done in compliance with civil authority
approved data and industry accepted methods and specifications.7
[85] “However, the work of the experts suffered from two major defects.
First, their approach appeared to be partisan, rather than objective; and second¬
ly, their focus was on costs rather than on price or value.
[86] “On the basis of South African law, as already explained, the Tribunal’s task
is to do the best that it can to establish the value to X of the work carried out by Y
Ï; during the five years or so that Y was responsible for the maintenance and airwor¬
:ÿ thiness of X’s aircraft. It would have been helpful to know what companies other
than Y would have been likely to charge. However, it would appear from the
evidence before the Tribunal that very few companies were in fact interested in
carrying out maintenance of X’s aircraft. One of these was, of course, Y and another
was supplier competitor - but beyond this, there seem to have been very few, if any,
contenders for the work. It will be remembered that the Technical Director of X, in
his first witness statement complained that supplier competitor’s charges were
‘unreasonably high’; and 12, in his letter of 16 March 1999 refers to a quote
from supplier competitor, which the Tribunal has not seen, as being ‘very costly’.
[87] “As already stated, it seems to the Tribunal that the emphasis on cost,
which has taken up a considerable amount of time and paper during the course
of this arbitration, is in fact misplaced. What the Tribunal has to assess, as best it
can on the material before it, is the value to X of the work carried out by Y under
the Maintenance Agreements.
[88] “Another way of putting this is to ask what price X would have paid for the
work to be carried out by another company. The Tribunal might have been in a
position to answer this question if the Tribunal had been supplied, for instance,
with quotations from supplier competitor for comparable work. But there is
no such evidence before the Tribunal - only statements to the effect that their
charges were ‘unreasonably high’. The only evidence that the Tribunal has as to
the value of the work done by Y is the price that Y charged and was paid. After
deduction of the ‘commission’, this amounts to approximately US$ 46 million.
[89] “In his first witness statement ... 12 describes the events which led to the
award of the Maintenance Agreements to Y. He refers to a meeting in Country
X with 13 ‘who informed me that he had learnt from his personal friend, the
Minister of Transport, that supplier competitor was overcharging X for main¬
tenance work’ and that 13 intended to approach R to seek a mandate to persuade
X to switch its maintenance contracts from the supplier competitor to R. 12 goes
V
6. "Ibid.”
7. "Ibid.”
Ï

i:i
on to explain that, after he had been employed as a consultant to Intermediary A,

Intermediary A was appointed to represent R in negotiations between X and R
and that he participated in all these negotiations. 12 then says ... :
‘All of R’s representatives made it clear, that although R was willing to

appoint Intermediary A as its agent to procure one or more maintenance
contracts with X, R would not pay any commission whatever out of its
commercial price that it was willing to agree for the work. It was agreed that
R would stipulate the commercial price at which it was willing to undertake
the maintenance work. Intermediary A would add to that price the amount
which Intermediary A required as its commission and the onus would then
be on Intermediary A to persuade X to agree a price for the maintenance
contracts made up of R’s commercial price plus I’s commission added
thereto.’
[90] "It seems that this is in fact what happened. R set a ‘commercial price’ for
the work which it was to carry out for X under the Maintenance Agreements. In
the absence of any persuasive evidence to the contrary, the Tribunal takes this
‘commercial price’ - that is to say the contract price less the so-called
commission - as representing the value of the work to X.”
4. Commission
[91] “In the LC action, as has been seen, Y pleaded that it was not obliged to
pay the monies claimed by Intermediary A because the contract for such pay¬
ments was illegal. X stated that this contract was made
‘In order to channel corrupt payments to senior employees of X and

Senior Government officials in Country X to influence them, as the
people responsible for awarding contracts by X alternatively as people
whose cooperation and/or consent and/or facilitation for the awarding
of such contracts was required, to conclude, alternatively cooperate
in the conclusion of, alternatively facilitate the conclusion of, alterna¬
tively consent to the conclusion of an agreement between R and X
relating to the provision of certain maintenance services on aircraft
flown by X.’
X calculated the amount of the so-called ‘commission’ as being US$

9,887,480.38 ....
Y did not agree ....
[92] “It is common ground between the parties that commission was to be
calculated by reference to the ‘Power by the Hour’ (PBTH) cost of the

vary- ~
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Maintenance Agreements. In his witness statement of 16 October 2001, . . .

Director 1 confirmed the percentages which had been referred to by W3 in
his witness statement and carried out his own calculation of the amount of
the commission, by reference to his assessment of the PBTH cost of the respec¬
tive Agreements. ... It should be noted that there is a slight discrepancy
between the figure of US$ 9,854,260.20 calculated by Director 1 and that
claimed by X namely US$ 9,887,480.38.
[93] “This difference is not significant. What is significant is that Y contends
that the amount of the commission was substantially less than this. Y contends
that the appropriate sum is US$ 8,421,765. The explanation for this difference
f. of opinion emerged at the Witness Hearing in London. On the first day of this
4 Hearing (10 June 2002) Counsel for Y referred in his opening statement to
Director l’s calculation of the amount of the commission payable (US$
9,854,260.20). Counsel said that Y challenged this figure and did not know
how Director 1 had arrived at it. Counsel then referred to the calculation of
commission as being based on the hours flown by the aircraft concerned
and said:
‘What Intermediary A have tried to show you is that in the formulation of

its claim for the return of the commission, this is a claim based on the power
by the hour and the power by the hour calculation depends upon the pay¬
ments and the flying hours. Those paragraphs in Director 1’s affidavit cause
us concern. They cause us concern because when we check the discovered
invoices and when we check the. discovered payments, we are unable to
ascertain how Director 1 came to his calculations, [footnote omitted]’
[94] “Counsel’s reference to the ‘discovered invoices’ is a reference to one of

four lever-arch volumes of documents produced on discovery by the Claimant,
which contained a set of invoices covering the period of the Agreements. These
invoices were on the printed paper of Intermediary A; they were dated; they
gave the registration number of the relevant aircraft, the relevant dollar rate for
that particular aircraft and the hours flown. Thus, the invoice for August 1995,
for example, in relation to aircraft registration number 2 showed a charging rate
of US$ 880 per hour and 81.71 flying hours, making a total sum of US$
71,904.80.
[95] “Counsel for Y then put in a document that had been prepared for the
purpose of his opening statement, so as to show the figure for which Y con¬
tended in respect of the amount of the commission, as opposed to the figure put
forward by Director 1. At this point, Counsel for X intervened to ask where the
figures and the calculation came from. Counsel for Y replied that they came
from the payments and the hours shown on the invoices disclosed in the
£
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arbitration and would be put to Director 1. There then came the following
interchange [footnote omitted]:
[The Chairman - to Counsel for X] ‘You are getting a foretaste of the cross-
examination, as I understand it.’
[Counsel for X] ‘Well that could be. I will have a look at the document and I
will take it from there.’
[The Chairman] ‘Yes. We will call it Rl, shall we?’
And so the document produced by Y’s Counsel was admitted as Exhibit Rl in

the arbitration and was available to be used in evidence, with the Tribunal giving
it such weight as the Tribunal thinks fit.
[96] “Exhibit Rl is a document of four pages entitled: ‘Consideration of Claim
Quantification’. The first page compares the hours calculated by Director 1 with
the invoices; the second page shows Director l’s calculation of the amount of the
commission and says ‘We have been unable to reconcile these numbers to the
invoices as discovered’; and the third page shows the amount of the commission
actually paid as US$ 6,154,758 and the total amount payable as US$ 8,421,765.
(The final page is not relevant to the present discussion.)
[97] “When Director 1 came to give evidence later in the day, he was asked
about his calculation of the commission and said: T meticulously went through
the invoices raised under the power by the hour agreement and then
Intermediary A multiplied by the hourly rate and then Intermediary A came
up with these figures.’ [footnote omitted] Director 1 was shown Exhibit Rl and
asked if he would look through it - and particularly the first page where there
was a comparison showing the difference between his calculations and the dis¬
closed invoices. X’s Counsel objected that Director l’s calculations were based
on documents that were in Country X and although it was suggested that
Director 1 look at the disclosed invoices overnight, nothing came of this.
[98] “It is obviously unsatisfactory for a witness to be confronted for the first
time with a set of calculations during the course of a hearing and to be asked, in
effect, to confirm their accuracy. It would have been very much more helpful to
all concerned (including the Tribunal) if Counsel for Y had put Exhibit Rl to the
Claimant’s lawyers before the Hearing and asked them either to agree to it or to
point out where they disagreed. This is the way in which an arbitration should be
conducted - rather than springing a document on a witness at the last moment
(which was no doubt done through a lack of timely preparation, rather than
from any desire to gain an unfair advantage).
[99] “In fairness to Y, however, it must be said that the amount of the
commission has been in issue between the parties since the commencement of
this arbitration. It was to be expected that the documents on which Director 1

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relied would be made available in London, rather than being left in Country X.
This might at least have enabled the accuracy of the calculations to be checked.
[100] ‘‘The disclosed invoices (in Exhibit Rl) indicated that R kept contem¬
poraneous records which established, month by month, the flying hours of each
of the X aircraft for whose maintenance R was responsible. These invoices were
passed to X for payment. If X at any time considered that the invoices were
incorrect, (for instance, in relation to the flying hours recorded) X could have
complained to Y but X did not make any such complaints during the life of the
Agreements. This suggests that the figures were accepted at the time as being
accurate.
x. [101] ‘‘When Y received payment from X it paid to Intermediary A the
amounts due as commission. It is recorded in the LC action that the amount
of these payments from March 1995 to 19 August 1998 totalled US$ 6,154,758;
and a detailed breakdown of this figure was given to the Court in the LC action.
The same figure of US$ 6,154,758 is given in Exhibit Rl as the amount of
commission actually paid (out of a total commission of US$ 8,421,765 which
would have been payable, if payments had not been stopped in August 1998).
[102] “Exhibit Rl has been heavily criticised, first because it was only produced
at the Hearing in London and secondly because, it is said, it is in any event
inaccurate [footnote omitted]. It does, however, amount to an admission by Y
that the total amount of commission payable was at least US$ 8,421,765.
[103] “The difference between this figure, and that claimed by X, is
considerable. However, the onus of proving its claim - both as to entitlement
and as to quantum - is on X. This is something that X knew or should have
known from the outset of this arbitration. In its Statement of Defence, Y denied
X’s claim that ‘the provision for commission payable to Intermediary A
amounted to US$ 9,887,480.38’ and stated in terms that X ‘is put to the proof
thereof’.
[104] “It is true, as X notes in its written Closing Argument . . . that ‘In
international arbitrations the question of the evidential onus may not be as
-significant as in litigation before a Court . . . Nevertheless, as already stated
from the outset of this arbitration, X was put to proof of its claim to be repaid
commission in the sum of US$ 9,854,260.20. In the Tribunal’s judgment, X has
established its entitlement to repayment of the commission, but has failed to
convince the Tribunal as to the amount payable.
[105] “Director l’s calculations were challenged by Y in cross-examination
and were not established to the satisfaction of the Tribunal; and given his finan¬
cial stake in the outcome of the LC action, 12 had an obvious interest in making
the amount of the commission as high as possible.
[106] “In these circumstances, the safest and more prudent course for the
Tribunal to take is to rely on the written admission made by Y; as to the amount

of the commission and to use this as the basis for the Tribunal’s decision on
quantum. It is not the Tribunal’s duty to make a case for one party or the other.
That is the task of counsel. The Tribunal’s duty is to form the best judgment it
can on the evidence before it. In the present case, the amount of approximately
US$ 8.4 million is admitted. Anything over and above this amount is not proven
on the evidence before the Tribunal.
[107] “It is plain to the Tribunal that this so-called ‘commission’ must be
deducted from the sums charged under the Maintenance Agreements; and so
the sum of US$ 55,553,886.03 paid by X to Y must be reduced byUS$ 8,421,765.
[108] "Y attempted to defend the ‘commission’ payments by arguing that the
commissions paid or payable to Intermediary A were a necessary cost; and
details were given, principally in the LC action, of work allegedly done and
services allegedly provided. Whilst the work may well have been done, and the
services rendered, the Tribunal does not accept that X received any benefit from
such work and services; and they do not represent charges which a contractor
other than would have been expected to make - unless it too was engaged in the
payment of bribes.
[109] “It follows that in the judgment of the Tribunal, it is the sum of US$
47,132,121 which represents the proper value of the work done and services
rendered by Y to X. In other words, it is this sum which represents the proper
‘commercial price’ for such work and services.”
V. INTEREST
[110] “The law that governs the substantive matters in dispute in this arbitra¬
tion is the law of South Africa, as the law chosen by the parties themselves. But
the arbitration proceedings are governed both by the ICC Rules and by the law
of England, as the seat of the arbitration; and English law itself, in the
Arbitration Act 1996, confers powers and duties on arbitral tribunals.
[Ill] “Both the law of South Africa and the law of England empower an
arbitral tribunal to award interest on any sums of money found to be due.
The only difference is that English law allows a tribunal to award simple or
compound interest, as the tribunal thinks fit, whereas South African law restricts
any award to simple interest only. In the present case, this difference is of no
import. The Tribunal has decided to award simple rather than compound
interest.
[112] “As the Tribunal has set out above, the remedy open to X was to rescind
the contract (which it did), tender to restore the benefits received under the
contract (which it did not do), and claim the difference between that benefit
and the total amount actually paid to Y (which it did not do). It follows as a
matter of logic that the quantification of X’s claim can only result from a finding

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?,:•ÿ CASE NO. 11307, 2003 ARBITRAL AWARDS
by this Tribunal or by agreement between the parties. The latter has not
occurred and therefore the amount of the restitution to be paid by Y to X
will only be determined by the Tribunal’s Award.
[113] “Such a restitutional claim is not a claim for a liquidated amount. South
African common law has distinguished between illiquid and liquid claims.
Where the claim is illiquid and can only be determined by a court, it is not
appropriate to require a defendant to pay on demand; and a failure to pay
does not start the running of interest. Interest will only run once the
Tribunal has quantified and determined the amount of the claim.
>ÿ
[114] “X has asked for interest to be calculated as if the claim was made in
k currency of Country Z in a Country Z court. However, the parties dealt in US
dollars and the Tribunal’s Award is in US dollars. Accordingly, X’s claim for
interest on the basis of a claim currency of Country Z is rejected.
[115] “In the Tribunal’s judgment, the rate of interest payable on a claim of
; this nature falls to be ascertained by reference to a dollar rate. In the
Maintenance Agreements, under the hearing of ‘Settlement of Accounts’,
there is provision for interest to be charged at the New York prime overdraft
rate plus 2% per annum and it is this rate that the Tribunal adopts.”
VI. COSTS
[116] “In a Memorandum on Costs which accompanied X’s post-hearing brief

of 31January 2003, X put the fees and expenses of its expert witnesses at US$
750,000; its legal fees and expenses [at a certain sum in the currency of Country
Z] and its ‘direct costs' at US$ 638,044. X’s ‘direct costs’ included not only
payments made to the ICC in Paris, but also travelling and other expenses of
the ad hoc Committee,8 which should not be counted as costs of the arbitration.
[117] “In Annexure A to Y's post-hearing brief of 30 January 2003, Y put its
legal fees and expenses at a total of [a certain sum in the currency of Country Z].
(This is approximately US$ 830,330 - to which must be added a further US$
40,500 for the additional payment to the ICC in February 2003).
[118] “It is also necessary to refer to the costs of 12 and his lawyer, for atten¬
dance at the specially convened hearing in London on 6 December 2002. By
letter of 13 March 2003 to the Chairman of the Tribunal from I2’s lawyer, these
were said to amount to US$ 5,580 in respect of I2’s fee and travel expenses;
8. Note General Editor. The Tribunal mentioned earlier in the award that the Government of
Country X formed an ad hoc Committee to investigate the allegations of bribery and corruption
againsc citizens of Country X. By agreement between the ICC Tribunal and the parties, repre¬
sentatives of the ad hoc Committee attended meetings and hearings of the Tribunal as observers.
Reprinted (tom the Yearbook Commercial Arbitration 37

£1,689.43 in respect of his hotel accommodation; and £8,652.12 in respect of his

lawyer’s fees and disbursements.
[119] “This has been an expensive arbitration for the parties. But the issues at
stake were high, as was the amount in dispute - over US$ 55,000,000 according
to X’s Request for Arbitration. There were no less than five separate hearings in
London; and additional meetings between the members of the Tribunal in
London and Country Z in order to give a decision on the application for a
Summary Award and to deliberate upon this Award. At a rough calculation,
each member of the Tribunal has had to address at least 10,000 pages of docu¬
ments and to carry out computations on issues which the parties’ experts were
unable to resolve.
[120] “Under the laws of both South Africa and England, the award of costs is
a matter which is within the discretion of the arbitral tribunal. Whilst the general
rule is that costs follow the event, there may be good reasons for not applying
this rule. Art. 31(3) of the ICC Rules gives the Tribunal a discretion as to which
of the parties shall bear the costs or in what proportion they should be borne.
[121] “In considering the issue of costs in this arbitration, the Tribunal had in
mind the following points in particular:
(1) X’s principal claim was for over US$ 55 million, plus interest and costs. In
the event, X has recovered considerably less than this amount.
(2) X’s approach in this matter was not helpful to the Tribunal. The issues
would have been more narrowly defined if from inception X had tendered
the benefits of the work done and materials supplied, quantified those and
claimed the difference between that and the amount actually paid to Y.
(Such an approach might even have resulted in tendering a payment or the
parties arriving at a setdement.)
(3) X was unsuccessful in its application for a Summary Award and, whilst the
time spent on this exercise was not all wasted, there are grounds on which
X might have been ordered to pay a substantial amount of the costs.
(4) In the circumstances, the Tribunal considers it to be fair and reasonable
that the costs of the arbitration as described below should be borne by the
parties in equal shares and that the parties should also share in equal pro¬
portions both (i) the fees, costs and expenses of 12 and (ii) all other fees,
costs and expenses which were incurred in common, such as the cost of
transcripts, of hiring rooms for the hearings, of the video link to Country Z
and so forth.”

i
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fi;
VII. AWARD
[122] “For the reasons set out in detail above, the Tribunal makes the
following Award:
(1) Y shall forthwith pay to X the principal sum of US dollars 8,421,765.

(2) If payment is not made forthwith, interest on this principal sum shall
accrue at the New York prime overdraft rate plus 2% per annum until
payment is made.
(3) The ICC Court has fixed its administrative expenses and the fees of the
members of the Tribunal as follows:
Administrative expenses US$ 61,132
Fees of the Chairman US$ 176,170

Fees of the Co-arbitrators
(2 x US$ 132,130) US$ 264,260
(4) The total expenses incurred by the Tribunal being US$ 46,438, the total
amount of the costs of the arbitration is US$ 548,000.
(5) The costs of the arbitration shall be borne by the parties equally. The
parties have made the following payments to the ICC on account of
these costs:
Claimant US$ 274,000

Respondent US$ 274,004
US$ 548,000
Accordingly, no reimbursement will be made to the parties.

(6) The parties shall bear in equal shares the fees, costs and expenses of 12 and
all other fees, costs and expenses which the parties incurred in common,
including but not limited to the hiring of rooms for the hearing and the cost
of transcripts. . .
.r
i Reprinted from the Yearbook Commercial Arbitration 39

f
$;
Award in case no. 12073 of 2003

$
r- Parties: Claimant: X (nationality not indicated)
: Respondents: (1) Y (nationality not indicated);
(2) Y2, a division of Y (nationality not indicated)
;
Place of
arbitration: Geneva, Switzerland
Subject matters: - capacity of a party

- defective corporate status of claimant
- 1958 New York Convention (Art. V(l)(¿*))
Facts
In early 1996, Mr. A, an employee of K, a manufacturer of water treatment

devices, contacted W, a Country X company, with the aim of securing a sub¬
contract under a contract for the construction of a desalinization plant in
Country X, for which W had entered a bid. On 11 June 1996, W obtained
the construction contract. On 16 July 1996, it engaged Y (which had acquired
K in the meantime) as a sub-contractor.
Y and W also discussed the possibility of W becoming Y’s exclusive agent to
promote additional sales of Y’s products in Country X. To this aim, on 19 July
1996, a Deed of Establishment containing Articles of Association was notarized
in Country X fora limited liability company named “X”. On 1 November 1996,
X entered into an Agency Agreement with Y and its subsidiary Y3 (later Y2);
under the Agreement, X was to effectuate sales and marketing efforts for Y in
exchange for a 10% commission on any order, contract or subcontract for
specified Y products and related services in Country X. The Agency
Agreement provided for ICC arbitration of disputes.
X never solicited a certificate of approval from the Country X Minister of
Justice, which confers status as a limited liability company under Country X law,
A dispute arose between the parties when Y - initially through Mr. A (who
was by then working as a consultant) - negotiated and then performed the sale of
certain products directly to a Country X customer in 1999. On 2 March 2000, X
wrote to Y invoking its right under the Agency Agreement to inspect Y’s records
and books and receive an accounting in respect of those sales. On 13 March 2000,
:

&
Y replied that it had terminated the Agency Agreement by fax of 1 April 1998
and that it was therefore under no obligation to X. The 1998 fax - which indeed
stated that the Agency Agreement was terminated though an indirect agency
relationship was to be continued through the intermediary of Mr. A - was sent
to W rather .than to X, which argued that as a consequence it did not receive the
notice of termination, even if the fax number and office address of W were
identical to the address and fax number for X.
On 1 June 2000, X filed a complaint before a court in country P against Y and
its subsidiary Y2 (collectively, Y). In September 2000, proceedings were stayed
pending arbitration, on the basis of the arbitration clause in the Agency
Agreement.
On 21 March 2002, X commenced ICC arbitration against Y and Y2 in
Geneva, Switzerland. The Claimant was identified in the request for arbitration
as “X, Country X corporation, Principal place of business in city Z, Country
X”. Y asserted preliminarily that X had not satisfied all of the requirements for
establishing a limited liability company under the laws of Country X; in
particular, it had not obtained a certificate of approval from the Minister of
Justice of Country X. As a consequence, it lacked the capacity to assert claims
in the arbitration. On its part, X conceded that it was not a fully registered
corporate entity in Country X but asserted that under Country X law this
was no obstacle to the assertion of legal claims under its business name.
By the present award, the arbitral tribunal held that Claimant X lacked the
capacity to present claims in international arbitration under the business name
mentioned in the request for arbitration. The claim was therefore inadmissible
and could not proceed to the merits.
The arbitrators first examined the status of X under the law of Country X and
concluded that as a result of the Deed of Establishment of 19 July 1996 Claimant
X enjoyed “some form of legal existence as a business organization”, though not
as a corporation as indicated in the request for arbitration. The issue was then
whether X nevertheless had standing to sue in arbitration.
In the absence of specific information on the relevant provisions in the law of
Country X, the tribunal reasoned as a matter of comparative law that national
legal systems generally consider that the issue whether an unincorporated busi¬
ness organization such as X can be a party to litigation under its business name is
a procedural issue governed by the lex fori. National civil procedure laws and
conflict rules applied by national courts typically follow the substantive law on
capacity of the forum; however, noted the tribunal, international arbitrators do
not have a lex fori in the manner of a national court judge, and must also take into
account the contractual dimension of arbitral jurisdiction.
In the present case, the parties determined the arbitral procedure by reference
to the ICC Rules of Arbitration, which however are silent on the question of

-L-1T
■'H
party capacity. The procedural rule had therefore to be determined by the arbi¬
tral tribunal. Although an ICC tribunal sitting in Switzerland is not subject to
either Swiss civil procedure rules or conflict of law rules, the tribunal’s freedom
is limited by the need “to make sure that the Award is enforceable at law”, as
provided for in the ICC Rules. As a consequence, a tribunal sitting in
Switzerland must be mindful of the possibility that its award be set aside by
the Swiss Supreme Court on certain grounds, which include an incorrect finding
of jurisdiction; tribunals must also take into account Art. V(l)(<t) of the 1958
New York Convention, which provides that enforcement of an award may be
refused if the parties to the arbitration agreement were under some incapacity
under the law applicable to them.
j..
As to the former aspect, the arbitrators concluded from an examination of
Swiss jurisprudence that the lack of capacity to sue is a serious procedural vice
that is not subject to waiver and must be corrected. As to the latter aspect, they
held that the capacity to conclude an arbitration agreement referred to in the
New York Convention is substantive in nature; hence, the capacity to sue or be
sued and the capacity to act as a party to arbitral proceedings, which are essen¬
tially procedural issues, do not come within the purview of Art. V(l)(¿).
The arbitral tribunal then noted that as a consequence of the contractual
dimension of arbitration, the jurisdiction of an arbitral tribunal is conditioned
on the existence of a valid agreement to arbitrate. This in turn presupposes that
the parties to the arbitration agreement can be identified with certainty.
While there are situations where an arbitration clause may be extended to
non-signatories, this was not the case here, where Claimant X simply pre¬
sented itself as a limited liability company despite the fact that it had not
become an entity of that nature. Nor did the persons having established X
or acted in its name seek to establish an alternative basis on which the arbi¬
tration agreement could be extended to their benefit, once the defective situ¬
ation was disclosed.
The arbitral tribunal examined, inter alia, relevant doctrine and ICC arbitral
precedents and concluded that while there is a certain flexibility in respect of an
extension of the arbitration agreement, there is also a certain discipline in respect
of the identification and legal capacity of parties to international arbitrations.
In the present case, Claimant X incorrectly described itself as a “Country X
corporation” in its request for arbitration and did not amend its party name or
demonstrate how it might still come within the tribunal’s jurisdiction once its
defective corporate status was revealed. The tribunal concluded that the “legit?
imate exercise of the jurisdiction of an arbitral tribunal depends on the associ¬
ation with a valid arbitration agreement of properly identified persons possessed
of legal capacity”. It therefore determined that Claimant X was not entitled to
present claims in international arbitration under its business name.

The arbitrators finally decided that each party bear its own costs and that both
parties share the costs of the arbitration in equal proportion.
Excerpt
[1] “The present matter arises against a background of informal business prac¬
tices surrounding bidding procedures for various construction projects in
Country X and notably involves a claim for an agent’s commission on the supply
of water treatment equipment to one such project. In particular, however, the
case raises a difficult issue of
arbitral jurisdiction involving the formal capacity
of defective corporations to sue under their business name and otherwise act as a
claimant party in international commercial arbitration proceedings.
[2] “During 1999, Respondent Y . . . contracted to supply numerous water
softener and pressure filter units and related services valued at more than US$
5.6 million for a construction project in Country X. In June 2000, Claimant
entity X, the marketing and sales agent for certain Y products for Country X,
initiated proceedings before a court in Country P, claiming that it is owed a 1 0 %
commission on the above-mentioned equipment sale. Invoking the arbitration
clause1 contained in an Agency Agreement between the parties,2 Y successfully
moved to Tiave the court proceedings in Country P stayed and the matter
referred to ICC arbitration in Geneva.3
1. "Art. 8.2 of the Agency Agreement provides:

‘In the event of a dispute which cannot be amicably resolved by the parties within thirty (30) days,
either party may refer the matter to arbitration. The matter shall finally be resolved by arbitration
in accordance with the Rules of Arbitration and Conciliation of the International Chamber of
Commerce before a panel of three (3) arbitrators sitting in Geneva, Switzerland. Each party shall
select one arbitrator and the third arbitrator shall he selected by the first two. If either party fails to
appoint its arbitrator within thirty (30) days of the notice of arbitration or if the two arbitrators
cannot agree on the designation of the third arbitrator, such arbitrator shall be appointed by the
President of the International Chamber of Commerce. The arbitration shall be conducted in the
English language.’”
2. “At the time of signature of the Agency Agreement dated 1 November 1996, the contracting party
was a corporation named Y3. The Claimant thus identified it under that name in the Request for
Arbitration submitted to the International Chamber of Commerce, alongside a second named
respondent party ‘Y’, the direct parent of Y3. In the Answer filed in June 2002, the joint respon¬
dents clarified that Y2 had become a division of Y and that it no longer has separate legal existence.
During the course of the proceedings, the party identifier for Y3 was changed to ‘Y2, a division of
r.”
3. ", . . P]n September 2000, the court in Country P 'ordered that Defendants’ [request to stay
.
proceedings pending arbitration is granted]’, and that the ‘ . . . case is stayed . . pending com¬
pletion of the arbitration required by the parties’ contract.”

"Vi-i.
[3] “The present Arbitral Tribunal was thereafter constituted pursuant to the
ICC Rules of Arbitration (ICC Rules). X contends that it is entitled to a 7.0%
Í. commission by virtue of the 1996 Agency Agreement being a ‘territory agreement’
and/or by virtue of having generated and developed for Respondents the business
opportunity in question. Y acknowledges the 1996 Agency Agreement but asserts
in its defense that the claimed commission is not due [on several grounds],
[4] “As a preliminary matter, however, Y asserted that X ‘lacks the capacity,
il:
power, and authority to assert any claims ... in this arbitration’ .... This
preliminary objection was raised on the basis that X had not satisfied all of
n' the requirements for establishing a limited liability company under the laws
i; of Country X.
? [5] “For its part, X then conceded that it is not a fully registered corporate
entity in Country X but asserted that under Country X law this is neither an
jí obstacle to doing business nor to the assertion of legal claims under its business
name.
[6] “Consistent with Art. 186(3) of the law governing international arbitration
proceedings in Switzerland (Chapter 12 of the Swiss Private International Law
Act of 18 December, 1987, RS 291, hereinafter the ‘PIL Act’), the Arbitral
Tribunal ruled that, for reasons of opportunity and judicial economy, the pro¬
ceedings would not be bifurcated but rather the preliminary issue would be
considered together with the merits.”
(....)
I. DISCUSSION
[7] “As described and made clear in the Terms of Reference dated 12
September 2002, the first issue for determination concerns ‘whether the
Claimant has legal capacity to claim against the Respondents’, an issue raised
by Respondents essentially on the basis of the allegation that the Claimant entity
never acquired legal personality under its lex societatis. Only if this issue were to
be decided in the affirmative would the Arbitral Tribunal be able to proceed to
decide further issues bearing on the merits of the dispute.”
1. Existence and Capacity Issues
[8] “The general trend within national legal systems is to preclude formalistic
attacks on transactions engaged with defective corporations, i.e. business orga¬
nizations having failed to meet the necessary legal requirements at the time of
formation (see International Encyclopedia of Comparative Law, Vol. XIII,
Business and Private Organizations, chapter 3, Buxbaum, “The Formation of
Marketable Share Companies”, p. 23). American judicial doctrines such as

‘de facto corporation’ and ‘corporation by estoppel’ clearly illustrate how a

contracting party will not be ‘let off the hook’ on technical grounds of this
nature. A question will therefore arise as to whether judicial doctrines of the
nature of ‘de facto corporation’ can be transposed to the context of international
commercial arbitration.
[9] “The issue raised by Respondents also pertains to the concept of being a
‘party’ to legal proceedings (see International Encyclopedia of Comparative
Law, Vol. XVI, Civil Procedure, chapter 5, Cohn, “Parties”, p. 3). In general,
the acts of someone lacking the capacity to be a party do not have the intended
effect and legal proceedings started by or against such a ‘non-party’ must be
discontinued (Id.). The procedural status of being a named party exists inde¬
pendently of principles of entitlement under the applicable substantive law or
the procedural right to sue or defend in an action, and the named party need not
be the real-party-in-interest or even the, right party (Id.). However, the con¬
stellation of topics surrounding party status when considered in an international
or comparative law context is laced with terminological and conceptual differ¬
ences due to the absence - and indeed in some cases the impossibility - of
equivalencies between different legal systems (Id., at pp. 3-4).4 A question
will therefore also arise as to whether solutions pertaining to party status
observed in the practice of national courts can be transposed to the context of
international commercial arbitration.
[10] “Nonetheless, in approaching the question presented of the ‘capacity’ of
the Claimant entity - understood here in terms of the power and ability to raise
and pursue legal claims in international arbitration in Switzerland - it is first of
all necessary to inquire, into the nature of the Claimant’s legal status, if any. This
primary question has to be addressed under the lex societatis for the entity here
styled as ‘X’, Country X law.”
a. Nature of claimant under Country X law
[11] “As noted by the parties, the Company Law of Country X provides that
‘A [limited liability] company obtains its status as a legal entity after its Deed of
4. “For example, Swiss legal terminology lacks a specific equivalent to the various meanings covered
by the terms 'standing’ or ‘locus standi’ familiar to common law jurisdictions, and distinguishes
(in French) between légitimation active, i.e. a substantive issue pertaining to entitlement to claim
as an affected or damaged party, and capacité d’être partie ou d’ester en justice, i.e. a procédural
issue pertaining to legal capacity to bring the claim. This Award is primarily concerned with the
latter concept, even though it discusses how the arbitration context adds a special dimension
which distinguishes the subject matter from the pure civil procedure concept of capacité d'être
partie ou d’ester en justice (see also David, L’arbitrage dans le commerce international, Paris
(1982), para. 189, p. 239).”
46 Reprinted Rum the Yearbook Commercial Arbitration

i
Establishment ... is approved by the Minister.’ .. . [Completion of the

Country X ‘birth process’ for a limited liability company involves a more exten¬
sive step than the mere clerical formality of registration or ‘filing’ of corporate
papers that is commonly required around the world, by also involving a certain
degree of government review and active approval of the Deed of Establishment.
[12] “In the, present instance, it is in any event conceded by Claimant that its
Deed of Establishment was not submitted to the Minister of Justice for approval.
Accordingly, X is plainly not a limited liability company under Country X law.
The consequence must be either: that the Claimant entity does not exist at all (as
apparently contended by Respondents), or that, while not a limited liability
i
company, the Claimant entity nonetheless exists in some alternate, subsidiary
form (as contended by Claimant).
[13] “As presented by Respondents, the entire issue of X’s capacity would
à"
hinge on the effects of the failure to have sought approval from the Minister of
Justice, which is the prerequisite for status as a limited liability company. On
this point, Claimant essentially contended in reply that Respondents did not
satisfy the burden of proof concerning the alleged consequences of this defect in
X’s formation as a limited liability company, with the result that for this reason
there would be no obstacle to proceeding to the merits of the dispute.
[14] “Indeed, Respondents’ conclusions on this issue are only supported by (i)
legal argumentation based on its own interpretation of the provisions of the
Company Law and (ii) an ‘Affidavit’ established by the Country X counsel
of record for Respondents. The Arbitral Tribunal accordingly notes that
Respondents have only presented legal argument based on the selected provi¬
sions of Country X law concerning limited liability companies recorded above.
[15] “In contrast, Claimant produced legal opinions from several consulting
lawyers, as well as published material, all to the effect that a business
organization came into existence under Country X law as from the date of
notarization of the Deed of Establishment, albeit an entity which was not sub¬
sequently bestowed with limited liability status. The evidence of Country X law
thus provided by Claimant indicates that, during the interim period between
conclusion of the Deed of Establishment and Ministry approval and inscription
on the Company Registry, the ‘company-in-formation’ is authorized to conduct
business under the designated company name, and even to make use of [the
words ‘limited liability company’] in that name, but that the founding share¬
holders and the named directors remain personally exposed to unlimited liabil¬
ity for acts undertaken in the company name.
[16] “Coupled with the evidence that different organs of the Country X gov¬
ernment issued business licenses to X, the Arbitral Tribunal concludes by infer¬
ence that as a result of the Deed of Establishment dated 19 July 1996 the
Claimant entity enjoys some form of legal existence as a business organization

under Country X law, such as a partnership or a ‘company-in-formation’.5 For

reasons given below in respect to procedural law, it is not necessary in the
present case to determine this question of Country X law with greater
precision.”
b. Capacity to act in legal proceedings under business name
[17] “Neither party presented specific evidence of Country X law concerning

the capacity of a business organization such as X be a party to court litigation
under its business name (leaving aside unsupported assertions for and against
this possibility by one of Claimant's consulting experts on Country X law and in
the Affidavit provided by the Country X counsel of record for Respondents).
Specific information concerning provisions of the Country X Civil Code,
Commercial Code or Code of Civil Procedure or judicial decisions which
might clarify this issue was not provided, for example in regard to whether
the law of Country X affords to partnerships the capacity to sue in the business
name of the partnership instead of through the names and capacities of some or
all of the individual partners.
[18] "As a matter of comparative law, the Arbitral Tribunal notes that some
national court systems permit associations as well as unincorporated business
organizations such as partnerships to sue in their own name, whereas other legal
systems do not permit this. For example, in the Netherlands several forms of
partnerships not endowed with legal personality may sue and be sued in the firm
name, i.e. civil partnership (maatschap), general partnership (vennootschap
onder firma), and limited partnership (commanditaire vennootschap)
(O’Malley & Layton, European Civil Practice, London (1989), p. 1453).
However, in special situations where the partnership as such might not be
allowed to sue or be sued, all of the partners (or the general partner in a limited
partnership) may sue or be sued in their names (de Kluiver & Eisma, “The
Netherlands”, in International Encyclopedia of Laws, Blainpain, ed., The
Hague (2002), p. 98). In Switzerland, the civil partnership {société simple) cannot
sue under a collective name, whereas the general partnership (société en nom
collectif) and the limited partnership (société en commandite) both of which -
5. “By way of companion, the Arbitral Tribunal notes that Swiss company law approaches legal
-
issues involving third parties which might arise during the formation period preceding
mandatory inscription on the Commercial Registry - by means of reference to the general
civil partnership type provisions of the Swiss Code of Obligations ( Droit suisse de la SA, vol.
II, Lausanne (1997), p. 66). With the exception of a few special rules, for so long as the Swiss
corporation (SA/AG) is 'en formation’ it is considered to be a société simple, i.e. a basic unregis¬
tered partnership. See Ruedin, Droit des sociétés, Bern (1999), para. 1111 et seq.\ and cases cited by
Swiss Supreme Court in ATT 102 II 420, JT 1978 I 230 at 233.”

H
must be recorded on the commercial registry - can sue or be sued in the firm
name (Maitland Walker, Guide to European Company Laws, London (1993),
pp. 420-423). In England and Wales, the general rule is that a partnership has no
legal existence distinct from its members and therefore cannot sue or be sued as
such in the English courts (unless the partnership is formed under the laws of a
foreign country granting legal personality to partnerships). However, an English
procedural rule allows a partnership to sue or be sued in the firm name if the
partnership conducts business within the territorial jurisdiction of the court,
even though in principle it is still the individual partners who are subject to
£. the jurisdiction of the court (O’Malley & Layton, op cit., pp. 44-45).
Z [19] “Either way [those] national jurisdictions resolve the question of the
;
capacity of unincorporated associations and business organizations to act as a
party in legal proceedings, the issue is fundamentally subject to laws and reg¬
ulations concerning civil procedure and the organization of the judicial system.
:r In all legal systems, the capacity of parties is considered to be a matter of pro¬
cedure governed by the lex fori (O’Malley & Layton, op cit., p. 40). While
national civil procedure laws and conflict rules applied by national judges typ¬
ically follow substantive law on capacity (if any), international arbitrators do not
have a lex fori and must also consider the contractual dimension of arbitral
jurisdiction.”
2. The Arbitral Context
[20] “The question of Claimant’s capacity to raise and pursue legal claims as a
party to international arbitration proceedings in Switzerland thus has a clear
procedural dimension. The Arbitral Tribunal can and must determine this issue
on its own motion, as mandated by para. 9.1 of the Terms of Reference and as
confirmed by the fundamental procedural law and rules applicable to its
function which are discussed below. See also ICC Case no. 4629, extracted in
XVIII Yearbook Commercial Arbitration (1993), p. 11 at 15 (examination ‘ex
officio’ of preliminary question of the existence and legal status of the parties).
[21] “Indeed, the arbitration law of the country where the arbitration takes
place governs the arbitration.6 Pursuant to this rule forming part of Swiss arbi¬
tration law, the procedure for this international arbitration is to be determined
6. "This general rule has recently been confirmed, for example, in the context of recognition and
enforcement proceedings in Texas and Hong Kong involving a Swiss arbitral award (cf. In the
Matter of an Arbitration between Karaha Bodas Company, L.L.C. v. '.Pertamina Civil Action
H-Ol-0634, S.D. Texas, Houston Division (J. Atlas, 16 April 2003) [reported in Yearbook
XXVIII (2003) pp. 908-964 (US no. 404)], and, same parties, No. 28 OF 2002, in the High
Court of the Hong Kong Special Administrative Region Court of First Instance (J. Burrell, 27
March 2003) [reported in Yearbook XXVIII (2003) pp. 752-789 (Hong Kong no. 17)].”
Reprinted from the Yearbook Commercial' Arbitration 49

pursuant to the provisions of chapter 12 of the PIL Act. Art. 182 PIL Act
provides (in English translation):
‘(1) The parties may, directly or by reference to arbitration rules, determine

the arbitral procedure; they may also submit it to a procedural law of their
choice.
(2) Where the parties have not determined the procedure, the arbitral tri¬
bunal shall determine it to the extent necessary, either directly or by
reference to a law or to arbitration rules.
(3) Whatever procedure chosen, the arbitral tribunal shall ensure equal
treatment of the parties and the right of the parties to be heard in an adver¬
sarial procedure.’
[22] “In the present case, the Parties have by agreement determined the arbi¬
tral procedure by reference to the ICC Rules of Arbitration. Art. 15 of the ICC
Rules provides:
‘1. The proceedings before the Arbitral Tribunal shall be governed by these
Rules and, where these Rules are silent, by any rules which the parties or,
failing them, the Arbitral Tribunal may setde on, whether or not reference
is thereby made to the rules of procedure of a national law to be applied to
the arbitration.
2. In all cases, the Arbitral Tribunal shall act fairly and impartially and
ensure that each party has a reasonable opportunity to present its case.’
[23] “The ICC Rules are in fact silent in respect to the specific question of
party capacity, and it therefore falls to the Arbitral Tribunal to determine the
procedural rule.
[24] “As recalled above, international arbitrators do not have a lex fon in the
manner of a national court judge. In particular, the international arbitrator sitting
in Switzerland is not required to apply either Swiss civil procedure rules7 or
7. “For example, Art. 14 of the Swiss Federal Civil Procedure Law affords the capacity to sue or be
sued to any person possessed of civil rights (including the right to sue and be sued), which
disposition covers the 'legal persons’ defined in the Civil Code, such as corporations, foundations,
and non-profit associadons (CC 52 et seq.). General and limited partnerships, which are entities
without legal personality under Swiss law, are nonetheless afforded the right to sue and be sued by
specific provisions of the Code of Obligations (CO 562 and CO 602). However, the Arbitral
Tribunal does not apply Swiss civil procedure rules, considering that Art. 182, chapter 12, of the
PIL Act here provides the relevant rule for an international arbitration tribunal in Switzerland.”

conflict of law rules.8 Where appropriate, reference may be made to Swiss

procedural laws or conflict rules, just as reference may be made to other
national procedural laws or to apposite international arbitration practice. In
any event, Swiss civil procedure law (whether cantonal or federal) does not
gain relevance on the mere basis that the seat of the arbitral tribunal is situated
in Geneva.
[25] “However, there are important limitations on the freedom thus afforded
the international arbitrator. These limitations are provided in the present case
through the ICC Rules, the Swiss PIL Act (Chapter 12), and the United Nations
Î:
Convention on the Recognition and Enforcement of Foreign Arbitral Awards
(the New York Convention).
■C
[26] “As noted above, the ICC Rules are silent in respect to party capacity.
However, Art. 35 of the ICC Rules provides the general guidance that; ‘In all
matters not expressly provided for in these Rules, the Court and the Arbitral
Æ" '
Tribunal shall act in the spirit of these Rules and shall make every effort to
make sure that the Award is enforceable at law.’ The Arbitral Tribunal cer¬
tainly must be mindful of the provisions of the Swiss PIL Act, which provides
in Art. 190(2) that an international arbitral award rendered in Switzerland may
be set aside by the Swiss Supreme Court ( Tribunal fédérât) under certain
conditions, e.g. where the arbitral tribunal has wrongly declared its jurisdic¬
tion or lack thereof. Moreover, Art. V(l)(<j) of the New York Convention
provides that recognition and enforcement of a foreign arbitral award may
be refused upon proof that the parties were under some incapacity to enter
into their agreement to arbitrate. Taken together, these provisions demonstrate
that the Arbitral Tribunal must address the issue of party capacity with due
care, as is confirmed below.”
8. "In respect to the capacity of a foreign corporation, the Swiss conflict rules are expressed at Arts.
154 and 155, chapter 10, of the PIL Act (in English translation):
‘Art. 154. Companies are governed by the law of the state under whose law they are organized, if
they fulfil the publicity or registration requirements provided by such law. . . . A company which
does not fulfil these requirements is governed by the law of the State in which it is actually
managed.’
'Art. 155. . . . the law applicable to a company governs in particular: (a) the legal nature of the
company; . . . (c) its capacity to have and exercise rights and obligations; (d) its name or trade
name; . . . (i) the authority of the persons acting on behalf of the company, in accordance with its
organization.’
The Arbitral Tribunal also does not apply these Swiss conflict rules, considering that Art. 1 82,
chapter 12, of the PIL Act provides the relevant rule for an international arbitration tribunal in
Switzerland.”

a. Position of Swiss Supreme Court
[27] “As noted above, an international arbitral award rendered in Switzerland

can be nullified under certain circumstances by the Swiss Supreme Court.
Indeed, the Swiss Supreme Court recently rejected a challenge made to a final
arbitral award in which the tribunal established by the Geneva Chamber of
Commerce and Industry (‘CCIG’) was confronted at the end of its international
proceedings with a situation quite similar to that presented at the outset of the
present case (Decision of 3 April 2002, ATF 128 III 191, Bulletin ASA 2002,
p. 358, the X, Inc. case).
[28] “The CCIG tribunal had terminated the arbitral proceedings after con¬
cluding that the named claimant, styled as ‘X, Inc.’, did not have legal person¬
—
ality under its lex societatis, and thus lacking legal existence - could not have
its claims arbitrated in Switzerland under its own name, even if it might have
acted under that name in court proceedings in its home jurisdiction either in
terms of an assumed business name or as an unincorporated division of an
established corporation.9 The final award was rendered after an earlier partial
award had already ruled in favor of the claimant ‘corporation’ on certain issues
of jurisdiction and liability, but before the lack of formal incorporation was
revealed. The nullification proceedings were essentially based on the specific
issue of whether the final award impermissibly contradicted the earlier partial
award.
[29] "Although the nullification proceedings were not directly formulated in
terms of the underlying party capacity issue considered by the arbitral tribunal
in that case, in reviewing the challenge to the final award the Swiss Supreme
Court observed in obiter dictum that certain procedural vices are so serious in
9. “As described by the Swiss Supreme Court in the context of the challenge to the validity of the
arbitral award:
'Le Tribunal arbitral [devait] déterminer l’identité de la partie demanderesse à l’arbitrage. Pour
des motifs qu’iln’estpas nécessaire d’exposer ici, it est arrivé à la conclusion que X, Inc. n’est pas une
entité juridique et qu’elle ne peut pas non plus faire valoir ses prétentions en tant que "alter ego" ou
en tant que division de Y. Inc., ce qui Ta conduit à mettre fin a la procédure en raison de l’absence
de personne juridique existante, du côté de la demanderesse.’
In translation:
‘The Arbitral Tribunal [had to] determine the identity of the claimant party in the arbitration. For
reasons which do not need to be described herein, the tribunal reached the conclusion that X, Inc.
is not a legal entity and that it cannot alternatively present its claims as an alter ego or as a division
of Y, Inc., which conclusion led it to terminate the proceedings due to the absence of an existing
legal entity on the claimant side.”’

Ff
té
k :

1
l nature that they are not subject to waiver10 and must be subject to correction, on
the motion of the judge, at any time during the proceedings. The Swiss Supreme
Court affirmed in this connection that the lack of capacity to be a party and the
lack of capacity to sue are serious procedural vices of this type. Put simply, the
Swiss Supreme Court stated that a (Swiss) judge cannot ‘give life to an entity that
does not legally exist’ by invoking an ‘abuse of right’ (‘On ne voit doncpas que le
juge puisse y remédier, même par le recours à l’interdiction de l’abus de droit, en
donnant vie à une entité juridiquement inexistante.’). On the basis of the ruling
by the CCIG tribunal that the claimant entity did not have corporate existence
under its lex societatis in the manner described to the arbitral tribunal (a deter¬
X mination not revisited by the Swiss Supreme Court in the absence of any juris¬
r dictional complaint on that issue), the challenge to the award discontinuing the
arbitral proceedings was rejected. In light of this decision, an arbitral award on
: the merits of the present case could face the clear risk of a request for
:«ÿ -i nullification.”
b. The 1958 New York Convention

!ÿÿÿ
[30] “An international arbitral award might also be questioned in the context
of enforcement proceedings, which are in most countries governed by the pro¬
visions of the 1958 New York Convention. The legislative history of the
‘capacity clause’ added to Art. V(1)(æ) of the New York Convention
(‘ . . . the parties to the agreement . . . were, under the law applicable to them,
under some incapacity . . . ’) reveals that this provision was originally drafted on
10. "For completeness, the Arbitral Tribunal notes an earlier Swiss Supreme Court decision to what
could appear to be the opposite effect, involving an arbitration claimant styled as "The Foreign
Trade Association of the Republic of U*. Arrêt du Tribunal fédéral, 1ère Cour civile, 2 juillet
1997, extracted in Bulletin ASA 1997, pp. 494-505. The arbitration claimant had commenced
court proceedings in London but the matter was referred to CCIG arbitration in Geneva on the
basis of an arbitration clause in the contract. A partial award concerning a portion of the case was
rendered against the respondent party. The arbitration respondent then petitioned the Swiss
Supreme Court for revision of the partial award on the basis of its subsequent discovery that
the claimant party (viewed as a State organ) lacked "standing* in respect to the claim for resti¬
V: tution of funds in that it was not identical to the "real-party -in-interest* having concluded the
Y*
voided contract (a public law enterprise with legal personality independent from the State, which
had been dissolved in the meantime). The Supreme Court rejected these arguments and let stand
■
f.
the partial award. The matter is thus readily distinguishable from che X , Inc. case. In addition, the
decision involved an extraordinary révision appeal based on the alleged discovery of important
"new facts*, and conclusive new evidence not available for earlier consideration. The high
standard for révision appeals was not deemed met, and the defendant party was in addition
taxed with a waiver for its lack of diligence in uncovering the "new facts1 concerning the alleged
status of its co-contracting party versus that of the claimant entity.”
I: Reprinted from the Yearbook Commercial'Arbitration 53

the basis of a provision in the earlier 1927 Geneva Convention (‘ . . . recognition .

and enforcement of the award shall be refused if the Court is satisfied . . . (b)
That the party against whom it is sought to use the award . . . , being under a
legal incapacity, .. . was not properly represented [in the arbitration proceed¬
ings]’), but that this topic became at the last minute of the treaty conference a
reference to the capacity to contract the arbitration agreement itself (UN Doc.
E/Conf.26/SR.24 and discussion in van den Berg, The New York Arbitration
Convention of 1958, pp. 275-276 (1981)).
[31] “Some commentators suggest that the provision extends as well to ‘lack of
capacity to be a party to arbitration proceedings or to assert claims in such
proceedings’ (see Patocchi & Jermini ad Art. 194, in International Arbitration
in Switzerland, Berti, ed., Basel (2000), p. 651; Siehr ad Art. 194, in IPRG
Kommentar, Heini et al., eds, Zurich (1993), 1625 n. 16). However, the reference
to the assessment of ‘incapacity’ under the law applicable to the party indicates
that the type of ‘capacity’ targeted by the New York Convention - i.e. the
capacity or the power of representation to conclude an arbitration agreement
- is substantive in nature, rather than procedural. As noted above, the capacity to
sue or be sued and the capacity to act as a party to arbitral proceedings are
essentially procedural issues which therefore do not come as such under the
scope of Art. V(l)(d) of the New York Convention.”
c. Further considerations and conclusion
[32] “The Arbitral Tribunal’s decision is rendered in the context of the fore¬
going considerations. The crux of the threshold issue presented by this case is
whether an entity described as a corporation but not legally a corporation may
nonetheless be allowed to act as a claimant party in international arbitration. It is
well-known that in certain legal systems a defective corporation may nonethe¬
less be allowed to cure the defect or sue under its business name. The essential
reasoning is that a technicality of this nature should not prevent a national court
from dispensing justice when appropriate and where it has jurisdiction to do so.
In contrast, other legal systems typically reject lawsuits instituted by entities
which have not acquired legal personality before commencing legal proceedings.
[33] “However, the question faced by national courts is not of the same nature
as the dilemma which the same issue presents to an international arbitral tribu¬
nal. The reason is that the jurisdiction of an arbitral tribunal is conditioned on
the existence of a valid agreement to arbitrate, which presupposes that the parties
to the arbitration agreement, as well as any additional or alternative beneficia¬
ries, can be identified with certainty (see Poudret/Besson, Droit comparé de
Varbitrage international, Zurich (2002), no. 1227, p. 189 ('/c]omme tout contrat,
une convention d’arbitrage ne peut être valablement conclue qu’entre desparties

1'i-,
Ii CASE NO. 12073, 2003 ARBITRAL AWARDS
déterminées ou déterminables see also Samuel,Jurisdictional Problems in

International Commercial Arbitration, Zurich (1989), p. 106).
[34] “It is therefore essential in international arbitration that the named parties
be properly identified, and the arbitration agreement properly ascribed to them.
How, otherwise, could an arbitrator legitimately award damages, or even costs,
for or against an entity that does not exist - or at least does not exist in the form
M;'
that it claims? While there are situations where an arbitration clause may be
?!ÿ ‘extended’ to non-signatories,11 such as by means of assignment, succession,
approval, ‘piercing the corporate veil’, or reference to another party, these are
not issues presented here. The Arbitral Tribunal is here confronted with the
situation where the claimant entity presented itself as a limited liability company
1 despite the fact that it had not become an entity of that nature. After disclosure
of this situation, the person(s) having established the Claimant entity or acted in
its name did not seek to join or substitute themselves as claimant(s) or establish
.;r; . an alternative basis on which the arbitration agreement concluded in the name of
X could be extended to their benefit.
[35] “Some rudimentary safeguards against such situations do exist. For exam¬
ple, Art. 4 of the ICC Rules of Arbitration requires that the Request for
Arbitration identify ‘the name in full, description and address of each of the
parties’. The French version, which is equally official, states this requirement as
follows: ‘les nom et dénominations complètes, qualités et adresse de chacune des
parties’. The purpose of this basic requirement is to properly identify the parties
so that any errors do not jeopardize enforcement of the award (see Buhler &c
iv Jarvin ad Art. 4(3), Practitioner’s Handbook on International Arbitration,
Weigand, ed., Munich (2002), p. 144), particularly as new parties cannot be
added to the proceedings without the consent of all of the originally named
parties (see Schaefer, Verbist & Imhoos, L’arbitrage de la Chambre de
Commerce Internationale (CCI) en pratique, Bern (2002), p. 36).
[36] "Existing doctrine and jurisprudence relating to international arbitration
provide only limited guidance for this unusual issue. Certainly there is the sug¬
gestion in an English arbitration treatise that the capacity and identity of a party
(including due registration of a corporate entity) is a threshold issue which
should be clarified at the outset of proceedings (see Russell on Arbitration
(22nd Edition 2003) at no. 3-003, p. 82). A Belgian treatise also states that an
arbitration agreement concluded in the name of a company-in-formation binds
the person(s) subscribing the obligation if the company is not ultimately formed
.
11 “See Sandrock, “The Extension of Arbitration Agreements to Non-Signatories: An Enigma Still
Unresolved", in Corporations, Capital Markets and Business in the Law: Liber Amicorum Rich¬
ard M. Buxbaum, Baums, Hopt & Horn, eds., Amsterdam (2000), p. 461 ff.”
i'
1
(Huys & Keutgen, L’arbitrage en droit belge et international, Brussels (1981)

para. 160, p. 64).
[37] “Some arbitration awards are also instructive, even if indirectly. For
example, in ICC Case no. 6850 (1992),12 the French claimant party had con¬
cluded a contract with a German company-in-formation which subsequently
acquired legal personality as a GmbH. However, the company failed and
entered into liquidation before arbitral proceedings were instituted both against
it and against the individual founders of the company having signed the contract
containing the arbitration agreement (one of whom was also appointed as the
liquidator of the GmbH). The arbitral tribunal ruled that the completion of the
company formation process and the acceptance by the GmbH of the obligations
contracted in its name by the founders had subsumed the founders’ connection
with the contract, such that they were no longer personally bound by the arbi¬
tration clause.
[38] “Also, in ICC Case is no. 7205 (1993),13 the named respondent was the
owner of a sole proprietorship in Saudi Arabia, an enterprise without legal
personality but recorded in the Saudi commercial register. The enterprise had
concluded a contract with a joint venture consisting of two French companies.
The individual owner originally named as respondent was recognized as a party
to the arbitration, but he was designated under the name of his business enter¬
prise (which presented a counterclaim). On the claimant side, the two French
joint venturers presented further procedural difficulties, notably in respect to
their status as counter-respondents, since one of them had been placed in liq¬
uidation prior to the commencement of the arbitration. It was clarified that the
liquidator had mandated the ‘principal partner’ of the joint venture to represent
the second company in the arbitration. In light of the complete identification of
the various parties, the tribunal issued an award on the merits of the dispute.
[39] “In ICC Case no. 2139 (1974)14 the placing into liquidation and
subsequent de-registration of a French general partnership ( société en nom col¬
lectif) was held not to put an end to the arbitral procedure. Both the extract of the
award and the comment thereon make clear that the arbitration was validly
commenced before the liquidation procedure and alleged de-registration of
the defendant party.
[40] “In a fourth example, the Paris Court of Appeals let stand a French
arbitral award rendered in favor of a Lebanese claimant entity having claimed
a commission under a representation agreement, in circumstances where the
12. “Partially reported in XXIII Yearbook Commercial Arbitration (1998), p. 37.”

13. "Recueil des Sentences Arbitrales de la CCI 1991-1995, Amsterdam (1996), pp. 622-628."
14. "Recueil des Sentences Arbitrales de la CCI 1974-1985, Amsterdam (1990), pp. 237-241.”

»1

existence of the claimant entity was contested by the respondent party.15 The
Paris Court of Appeals took note that the enterprise, under its original denom¬
ination, had been registered in the Beirut Commercial Registry. The court con¬
cluded that the claimant’s alleged lack of existence could not be demonstrated.
The arbitrators had also noted that a series of contracts had been performed over
a long period of time without objection by the respondent, and that the same
individual had managed the claimant entity under its various denominations
over more than a decade.
[41] “It follows from the authorities and reasoning discussed above (including
in particular the X, Inc. case in Switzerland) that there is, and necessarily must
? be, a certain discipline in respect to the identification and legal capacity of parties
to international arbitration proceedings, as well as a certain latitude in appro¬
priate cases in respect to ‘extension’ of the arbitration agreement.
[42] “The Arbitral Tribunal observes that the Claimant entity in this case
described itself as a ‘Country X corporation’ in the Request for Arbitration.
However, once the defective corporate status of X was revealed, Claimant did
not amend its party name or demonstrate how it might still come within this
Tribunal’s jurisdiction, even though it explained in some detail the situation
under Country X law whereby the directors and shareholders of a company-
in-formation remain individually liable for claims brought by third parties dur¬
ing the formation period. In the event of such a claim by Y, the directors and/or
shareholders of X thus would likely be named as parties in such legal proceed¬
ings. Logically, it can thus be inferred that the converse should also be true.
Ignoring this aspect of the question, Claimant chose to stand behind general
statements that in Country X it is permitted to conduct business, enter into
contracts, and institute legal proceedings under its business name, despite a
lack of status as a limited liability company, without, however, demonstrating
in a fully convincing manner the functioning of Country X law in these respects,
much less in an international arbitral context.
[43] “Respondents’ side is also not free from contradiction. When faced with
the same claim presented before another court in Country P, Respondents
asserted that the Agency Agreement ‘contains a valid and enforceable arbitra¬
tion clause’ .... However, after successfully having the matter referred to arbi¬
tration on that basis, Respondents then contended on the basis of the Company
Law of Country X that ‘X, as an entity, had no authority to contract with Y in
1996 and has no authority to assert claims on its own behalf against Y arising
from the improperly confected Agency Agreement’ . . . and ‘an unincorporated
limited liability company has no legal entity status and therefore does not have
15. “Soàété UnijetS.A. d S.A.R.L. International Business Relations Ltd ( I.B.R.J 1989 Rev. Arb., pp.
83-87.”

any legal capacity to enter into agreements with third parties or to assert
claims' .... Despite these attacks on the validity of the arbitration agreement,
which, if accepted as such, would logically have the net effect of depriving the
Parties of any grounds for the submission to arbitration and of necessarily
restoring the matter to the situation as it stood in September 2000, before the
court in Country P acted on Respondents' motion to order a stay of proceedings
pending arbitration, Respondents essentially request that the Arbitral Tribunal
dismiss X’s ‘improper claim’ and award to Respondents recovery of all legal
costs .... The Arbitral Tribunal would be remiss if it did not point out that
Respondents cannot have it both ways and that the costs of arbitration would
not have been incurred at all but for Respondents’ insistence on referral of the
matter to arbitration.
[44] "The decision of the Arbitral Tribunal is not based, however, on contra¬
dictions in the pleadings. The legitimate exercise of the jurisdiction of an arbitral
tribunal depends on the association with a valid arbitration agreement of prop¬
erly-identified persons possessed of legal capacity.
[45] “For this essential reason, the basis of which is extensively discussed
above, the Arbitral Tribunal determines that the Claimant entity is not entitled
to present claims in international arbitration under the name ‘X’. Simply put, the
arbitration cannot proceed to the merits. This procedural decision is therefore
without prejudice to the claim itself or to any determination which the court in
Country P originally seized with this matter may hereafter make on the basis of
its own procedural and jurisdictional authority, should those proceedings be
resumed.”
II. COSTS
[46] “Both Parties seek an award of their costs, including in particular recov¬
ery of the amounts each side advanced to the ICC in equal shares to cover the
costs of the arbitration. An. 31(3) of the ICC Rules provides in this respect that
‘the final Award shall fix the costs of the arbitration and decide which of the
parties shall bear them or in what proportion they shall be borne by the parties’.
[47] “In light of the procedural circumstances for this matter wherein the
claim was initially presented before a national court in Respondents’ country
but Respondents obtained a stay and referral of the matter to arbitration, where¬
upon the, claim was presented to arbitration but Respondents then contested
Claimant’s legal capacity, the Arbitral Tribunal, after due consideration of the
parties’ respective allegations in the proceedings, decides that each party shall
bear its own costs in the matter and that the costs of arbitration, fixed by the ICC
Court at US$ 73,770 shall be shared by the parties in equal proportion.”
(..-ÿ)

- - -. 7 ,ÿ ---TT— 7-.ÿ , ~T~~ n _-
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ti
Parties: Claimant: Licensor (France)

Respondent: Licensee (US)
Place of
arbitration: Paris, France

r.
Subject matters: - territorial limitation of exclusive license contract
- scope of competition law
- breach of exclusive license agreement
- good faith in performance of contract
- legal grounds for indemnification
- causal nexus for loss
Facts
In 1982, company M, which had developed a specific type of equipment to

produce its trademarked product (the product), entered into an exclusive license
agreement with Z, a United States corporation, for the manufacture and sale of
the product in the United States. M was later merged into the present claimant.
In 1990, the present respondent bought part of the assets of Z, including the 1982
license agreement; in October 1991, it requested that Canada be added to the
territory of the license.
In 1992, claimant and respondent entered into a new exclusive license agree¬
ment (the Contract) covering the procedures, know-how and techniques to
manufacture the product under the US patents, as well as the right to sell the
product in the United States and Canada. Specifically, the Contract granted the
respondent an exclusive license effective retroactively from August 1990 “to
utilize its procedures, know-how and techniques to manufacture and sell” the
trademarked product. Further, it granted respondent the right to use its US
patents and the right to use the equipment "within the scope and in the
Territory of the United-States of America and Canada . . . (the territory)”. It
also provided, inter alia, that claimant was to allow respondent to use any
improvement of the know-how and/or the patents and that in consideration
i': for the licensed rights, respondent agreed to pay claimant an ongoing royalty

è
&
of five percent on its net turnover on the product. Respondent was also to send
to claimant samples of the product twice a year and to provide claimant with
quarterly sales statements. During the life of the Contract and for a period of five
years after its expiration or cancellation, the know-how and all technical and
commercial information related to the product were to be considered as strictly
confidential. The Contract further provided for ICC arbitration of disputes and
stated that it was governed by the laws of France.
Respondent did not pay any royalty to claimant, nor did claimant inquire
about the respondent’s sales until 1995 (when its request for information went
unanswered).
In early 1997, Respondent sold the product to a company in Country X (the
first Country X company); it did not inform the claimant of such sale, nor did it
provide claimant with samples of the sold product. Shortly thereafter in 1997,
respondent was contacted by another Country X company (the second Country
X company) inquiring about the availability of the product for distribution in
Country X. Respondent sent the second Country X company a sample ship¬
ment of 15,000 units of the product. Meanwhile, around the end of 1997 and the
beginning of 1998, claimant began to modify the manufacturing technique in
view of developing a new product but did not inform respondent of this. Early in
1999, claimant terminated the Contract. Later in 1999, respondent sold the
remainder of its stock to the first Country X company; it did not inform claim¬
ant of the sale.
Also in early 1999, the second Country X company was contacted by a
research Institute which wished to include the product in an important
comparative study. The second Country X company referred the Institute to
the respondent, which did not respond to the Institute’s letters. The Institute
then wrote to the second Country X company requesting samples. The second
Country X company provided samples of the product from the shipment it had
earlier received from the respondent, informing the Institute that they were
“oldish stock made about a year ago . . .”.
In April 2001, the first Country X company sued respondent, claiming that
the units of product sold to it between 1997 and 1999 were not fit for their
purpose. In 2001, the Institute’s comparative study was also published. The
product delivered by respondent to the second Country X company was
rated extremely poorly. Claimant then learned that the samples in the study
had been supplied by the second Country X company and that that company
had presented itself as the agent for the product in that region.
A dispute arose between the parties regarding these issues and claimant ini¬
tiated ICC arbitration relying on the arbitration clause in the Contract. It alleged
that respondent had breached its obligations by selling the product outside the
contractual territory, that is, in Country X, and by representing to third parties

i
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i S;:¡ ■■
IN¬ CASE NO. 12127, 2003 ARBITRAL AWARDS

íjU
:o be empowered to act as claimant’s distributor in that region, Claimant also
alleged that respondent had continued to sell claimant’s trademarked product
after the termination of the Contract and that it had breached the contractual
confidentiality agreement. Claimant further alleged that respondent had failed
to provide samples of the product, to provide quarterly sales statements, to pay
royalties and to inform it of the inquiries from the Institute. Moreover, claimant
alleged that the publication of the study showing the product performing poorly
was a consequence of respondent’s actions and that the publication had caused
claimant losses and damages which it was claiming in the arbitration.
Respondent replied that the Contract did not define the sales territory, the
only territorial limitation being with respect to the equipment for manufactur¬
t- ing the product. If such a limitation of the sales territory did exist, it should be
considered null and void as being contrary to the US Patent Act, to European
competition law and to mandatory provisions of French law. Moreover, the
sales were made FOB from the United States. Respondent also denied that
the trademark rights had been infringed, that it had appointed the second
Country X company as its agent in the region and that it had violated the
confidentiality clause of the Contract. Moreover, respondent denied that it
was liable for failure to inform claimant of the Institute study, as the
Contract had already been terminated at that time and that there was no direct
link between the alleged contractual breaches and the study performed by the
Institute and its publication.
The arbitral tribunal held that the clear and unambiguous contractual limita¬
tion provided by the contract, namely, "the production and sale” of the product
"within the territory”, applied to both the manufacture of the products and their
sales and distribution. Moreover, the arbitral tribunal found that to avoid the
disruption of distribution in other territories by sales in those territories it was
common practice of exclusive license agreements to entitle the licensee to per¬
form both production and distribution and to include a territorial limitation of
the licensee’s activities.
The limitation was valid under French law as it was not disproportionate in
respect of its finality and did not excessively restrict the operation of thelicensee.
The arbitral tribunal rejected respondent’s further argument that the territorial
sales limitation was contrary to French and European competition law in that it
would lead to an “absolute territorial protection”. French and European anti¬
trust prohibitions would only apply insofar as a contract directly or indirectly
restricted the freedom of competition in all or part of the European territory.
The arbitral tribunal concluded that “the fact that the Contract has been sub¬
mitted by the parties to French law does not necessarily imply the application of
mandatory rules of French competition law wheresuch rules would in any event
not be materially or territorially applicable”. In this case, the license agreement
Reprinted from the Yearbook Commercial-Arbitration 61

related to US patents to be exclusively performed in the territory of the United

States and Canada by an American company based in the United States. Nor
could a distribution agreement covering the whole US territory be, in itself,
restrictive of the competition within the American market. Moreover, the US
case law invoked by respondent related to the principle of "exhaustion of rights”
and had nothing to do with the issue of whether respondent had violated the
Contract in selling outside the territory.
The arbitrators found that respondent’s actions showed that it contemplated
the establishment of an important distribution network in two major countries
beyond the contractual territory in violation of the contractual territorial lim¬
itation. Moreover, it had failed to inform the second Country X company that it
had no authority to appoint agents or representatives for the product in that
region. The arbitral tribunal also rejected respondent’s argument that because
deliveries had taken place FOB in the United States they did not constitute a
violation of the territorial restriction. Respondent’s actions were in violation of
Art. 1134 of the French Civil Code which requires parties to perform their
obligations in good faith, which is not satisfied when a party knows that it is
circumventing the intention of the contract.
The arbitral tribunal further found that the respondent had violated the
contractual obligations to provide claimant with product samples and quarterly
sales statements. It had also violated its duty of information, particularly with
respect to the letter from the Institute. It was not excused from this duty
because it received the letter subsequent to the termination of the Contract,
as it had continued sales to the second Country X company after the receipt of
the letter.
On the other hand, in the view of the arbitral tribunal, respondent had not
violated the obligation of confidentiality. Furthermore, the Contract allowed
for sale of its end-of-contract inventory. Nor had respondent violated claimant’s
trademark right, as trademark rights are exhausted with the first introduction on
the market of the trademarked items. The owner was not allowed to restrict the
circulation of the trademarked product which had been introduced on the
market with its consent.
The arbitral tribunal concluded that, with the exception of the duty to pay
royalties, the several breaches by the respondent of its contractual obligations
did not provide legal grounds to indemnify the losses claimed by claimant. In
coming to this conclusion, the arbitral tribunal noted that under French law civil
liability requires three conditions: the breach of one party’s obligations, a
damage and a causal nexus between the breach and such damage. Here, the losses
were constituted by the adverse consequences of the publication by the journal
of the Institute’s study. Those losses were not, on the record of the case, the

I CASE NO. 12127, 2003 ARBITRAL AWARDS
Í
immediate consequence of the breach by respondent of its obligations, in
particular its obligation not to sell outside the contractual territory, but rather
stemmed from a chain of events: respondent supplying samples to the second
Country X company, the second Country X company supplying the samples to
the Institute more than one year later and the Institute using those samples for
the study. Other causes might be an incorrect testing method or the obsoles¬
s':
cence of the licensed technology.
The tribunal applied Art. 1151 of the French Civil Code, according to which
even if the breach amounts to gross negligence, consequential losses can only be
indemnified insofar as they have been the immediate and direct consequence of
such breach. In certain cases a loss caused by a chain of events can constitute a
!!•;
direct consequence of the initial breach and French case law adopted two
different tests for this determination. (1) Under the theory of causalité adéquate
;s the breach of a party's obligation can justify indemnification, even if the losses
r?\
have been caused by a chain of events, when the breach was such that it could, in
the normal course of events, cause such losses. The arbitral tribunal found that
the supply of samples to the second Country X company was not closely
connected enough with the publication of the Institute study in order to be
considered as its cause as respondent could not anticipate that the samples
would be used a year and a half later for the comparative study. (2) Under
the theory of équivalence des conditions, indemnification can also be allowed
if evidence is provided that the breach was a necessary condition of the losses,
that is, that without the breach the losses would not have been suffered.
Applying this theory, the arbitral tribunal came to the same conclusion as
there was no evidence that the Institute would not have been able to obtain
the product from another source.
The arbitral tribunal also found that, although the failure to inform claimant
of the letters requesting samples for the study, could in abstracto and per se be a
cause of the damage, a close examination revealed no such causal nexus, as
respondent could not have imagined that when it received the Institute’s letter,
the Institute would act negligently by not verifying that the samples obtained
from the second Country X company were compliant with their own test pro¬
tocol. Nor could it be considered with certainty that the damage alleged by
claimant would not have been suffered if respondent had informed claimant
of the Institute’s letters.
The arbitral tribunal awarded the claim for royalties, rejecting respondent’s
argument that claimant had been negligent in failing to claim them. In its final
holding, the arbitral tribunal held that although claimant had failed in its prin¬
cipal claim for damages, because respondent had repeatedly violated its contrac¬
tual obligations, it was to bear most of the legal and arbitration costs.

Excerpt
I. TERRITORIAL LIMITATION IN CONTRACT
1. Applies to Sales
[1] “Claimant submitted that the territorial limitation provided by the

Contract applied not only to the manufacturing of the product, but also to its
sale and distribution. Conversely, respondent submitted that the Contract
provided for no such restriction, the territorial limitation having been provided
only in relation to the use of the patents and of the know-how for the purpose of
the manufacturing of the product.
[2] “Respondent’s contention shall be rejected. The combination of the
various provisions of the Contract leads the Tribunal to believe that the inten¬
tion of the parties was that the licensed rights were supposed to cover not only
the manufacturing of the product, but also its sale. Obviously, as the Contract
does not provide for the supply of the product to respondent the license of the
right to manufacture the product would have been of no interest to the parties
independently from their distribution. In the context of the Contract, the pro¬
duction and the sale of the product can therefore not be severed one from the
other. Accordingly, both the right to manufacture and to sell have been licensed
‘within the scope and territory’ defined in the Contract.
[3] “It should in this regard be noted that the Contract provided that the
license was non-transferable, and that the licensee’s efforts for ‘the production
and sale’ of the product were to be deployed ‘within the territory’. It was also
provided that respondent had the possibility to purchase the product from
claimant instead of manufacturing them itself, but only in view of their ‘resale
in the territory’. The Tribunal therefore believes that there is no reasonable
doubt as to the intention of the parties to limit respondent’s sales within the
contractual territory.
[4] “The construction proposed by respondent cannot be admitted, not only
because it is contrary to the precise terms of the clauses and provisos of the
Contract, which clearly refer to both production and sales to be performed in
the territory, but also because it is not in accordance with the common practice
of exclusive license agreements whereby the licensee is entided to perform both
production and distribution. In such agreements, the interest of the licensor to
include a territorial limitation of the licensee’s activities is essentially directed to
avoid sales in other territories, as such sales can disrupt the distribution of the
licensed product in those territories. In any event, respondent has provided no
evidence that the parties’ intention would not have been, as expressly provided
in the Contract, to limit the sales of the product within the territory.

- - - -
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'

The Tribunal shall therefore give effect to the clear and unambiguous clauses
barring respondent from selling the product outside the territory.”
2. Valid under French Law
[5] “From a civil law point of view (the issue of anti-trust law will be dealt with
hereinafter), a limitation to the commercial liberty of one of the parties should be
considered as valid, according to the principle of parties’ autonomy and contrac¬
tual freedom, as long as it is not disproportionate in respect of its finality, and as
V.
long as it does not restrict in an excessive manner the operations of the debtor of
the obligation. Such conditions have been clearly set out by case law regarding
non-competition clauses, but are also applicable to sales territorial limitations,
which are very close in their nature and scope. In the present case, the Tribunal
notes that the contractual territory is extremely vast, as it covers both the USA
■
and Canada. The territorial sales limitation does therefore not impose upon
respondent a disproportionate restriction of its commercial liberty, in respect
of claimant’s legitimate interest to control its distribution in other territories.
Finally, the clause is balanced by the exclusivity granted to respondent within the
territory. The Tribunal therefore believes that there is no serious reason to doubt
that the Contract’s territorial sales restriction is valid under French law. . . ."
3. Valid under Anti-Trust Law \
[6] “Respondent has contended that the territorial sales limitation would lead to
the constitution of an ‘absolute territorial protection’ which would be ‘prohibited
by French law as well as European competition law’. It is undoubtedly true that -
in broad terms - French and European competition law prohibit situations of
absolute territorial protection in favour of a distributor or a licensee, i.e.situations
whereby the consumers located in a given territory are forced to purchase a
product only from a single exclusive supplier in such territory. However, and
leaving aside the fact that the existence of such an absolute territorial protection
cannot be inferred from the sole existence of a territorial sales restriction, which is
not illicit in itself, it should be underlined that the French or European anti-trust
rules prohibiting such absolute territorial protections are applicable only insofar
as a contract directly or indirectly restricts the freedom of competition in all or
part of the European territory. From this point of view, the fact that the Contract
has been submitted by the parties to French law does not necessarily imply the
application of mandatory rules of French competition law where such rules would
in any event not be materially or territorially applicable.
[7] “In the present case, the Tribunal fails to see how a license agreement
related to two US patents, to be exclusively performed in the territory of the

United States and Canada by an American company based in the United States,
could in any manner restrict competition in the French or in the European
territories, or create an absolute territorial protection to the prejudice of con¬
sumers located in such territories. The Tribunal therefore considers that
respondent having failed to demonstrate that the Contract could in any manner
restrict competition in France or elsewhere in Europe, the French or European
anti-trust rules are not applicable in the present case.
[8] “The Tribunal also notes that - assuming such rules could be found appli¬
cable in this case - respondent has not made any submission based on the US
anti-trust regulations. Besides, a distribution agreement covering the whole US
territory could hardly, in itself, be restrictive of the competition within the
American market. It should moreover be added that the reference made by
respondent to the US/EC 1995 agreement1 is of no relevance to the case. As a
matter of fact, such agreement does not relate to the applicability of either
party’s anti-trust rules in the other party’s territory, but only to a co-operation
between the American and European anti-trust agencies within the scope and
limits of their respective jurisdictions. Nor is the reference made by respondent
to the US Patent Act of any relevance as to the validity of the clauses prohibiting
respondent to sell outside the territory.
[9] “As a matter of fact, the case law mentioned by respondent {Adams v.
Burke; Intel v. ULSI) relates to the principle known as 'exhaustion of rights’,
under which the holder of a patent right is not allowed to use sùch right to
restrict the circulation of a patented device which has been initially introduced
on the market with its consent. This principle means that claimant’s patent rights
cannot be used to prevent the product from circulating outside the territory, but
it has nothing to do with the issue of knowing whether respondent violated the
Contract in selling outside the territory, or whether the territorial sales limita¬
tion should be invalidated as restrictive of free competition. In other words, sales
made outside the territory can perfectly violate the Contract without violating
claimant’s patent rights or the US Patent Act. The Tribunal therefore considers
that respondent has not demonstrated that the sales territorial limitation would
be contrary to an anti-trust rule applicable to the case. The contractual clauses
preventing respondent to sell outside the territory are therefore valid in the
context in which the Contract was to be performed.”
1. Note General Editor. The arbitral tribunal was apparently referring to the Agreement between the
European Communities and the Government of the United States of America on the Application
of Positive Comity Principles in the Enforcement of their Competition Laws (Decision of EU
Council and Commission of 10 April 1995 (95/145/EC, ECSC). The Agreement was concluded
on 23 September 1991; interpretative letters were exchanged on 31 May and 31 July 1995.

í
r
CASE NO. 12127, 2003
XI. VIOLATION OF CONTRACTUAL OBLIGATIONS
ARBITRAL AWARDS
I BY RESPONDENT
1. Obligation Not to Sell Outside the Territory (Yes)

\
[10] “Respondent submitted that, even assuming that the Contract validly
:sV prevented sales outside the territory, it did not violate such limitation as the
V
units of product supplied to the first and second Country X companies were
V
both delivered FOB in the territory of the United States. The Tribunal does not
share such view. Regarding the second Country X company, the Tribunal con¬
siders irrelevant that the delivery of the 15,000 samples took place, as submitted,
in the US territory instead of Country X. As a matter of fact, such delivery
cannot be isolated from its context, and has to be analyzed in the global frame¬
work of respondent’s negotiations with the second Country X company. In this
regard, the evidence submitted clearly shows that respondent negotiated with
the second Country X company, in a quite detailed way, the setting up of a
distribution network of the product in Country Z and Country X. The corre¬
spondence exchanged between respondent and from April 1997 to January 1998
shows that the second Country X company proposed respondent to distribute
the product [for use in Country X and Country Z] (letters of April 1997 and
September 1997), which proposal was accepted in principle by respondent (let¬
ters of April 1997 and December 1997). Respondent was perfectly aware of the
importance of such a potential distribution network in two of the main countries
in that region, as the second Country X company provided precise figures in
terms of potential clients (as much as 70-80 customers in Country X and 200 in
Ï-
Country Z), and of number of items (1 million in the first year, a figure to be
\ substantially increased in subsequent years - second Country X company’s
letter of September 1997).
[11] “The Tribunal considers that such negotiations, in view of setting up an
important distribution network in two major countries [for distribution of the
product], constitutes an active and deliberate attempt to extend respondent’s
area of sales beyond the contractual territory. Such attempt shows a total
disregard, from respondent’s side, not only of its obligation to limit its promo¬
tional activities to United States and Canada, but also of the article of the
Contract prohibiting any sub-license of the contractual rights, insofar as such
rights include the distribution of the product. It should in fact be underlined that
respondent failed to inform the second Country X company that it had no
authority to appoint agents or representatives for the product in Country X
and Country Z, whereas the second Country X company had clearly mentioned,
in its September 1997 letter, that it was seeking such appointment. The evidence
of the case suggests that such failure may have induced the second Country X

company to later represent itself to the Institute as the ‘area agent for the prod¬
uct’. The delivery of 15,000 product samples to the second Country X company
considered in such a context, undoubtedly amounts to a blatant violation of the
Contract.
[12] “As to the sales to the first Country X company, the Tribunal believes
that the circumstance that the units were delivered FOB in California does not,
either, release respondent from its obligation. As a matter of fact, a party is
bound by Art. 1134 of the French Civil Code2 to perform its obligations in
good faith, and good faith performance cannot be satisfied by formal compliance
with the contract’s provisos when a party knows that, in reality, it is substan¬
tially circumventing the intention for which such provisos were agreed. It fur¬
thermore appears from the writ notified by the first Country X company against
respondent in April 2001 that such sales were directly negotiated by respondent
with the President of the first Country X company. Respondent was therefore
perfectly aware that the product was to be used by a Country X company.
Besides, the fact that the units were sold to thé first Country X company at
the domicile of a US based company (company Q at the address of the
respondent) suggests that respondent knew that such sale was not compliant
with the Contract’s territorial sales limitation. In addition, the Tribunal cannot
but note the proximity in time between respondent’s first negotiations with the
first Country X company (March and April 1997) and its first active contacts
with the second Country X company (April 1997). Such simultaneous contacts
with two different Country X companies strongly suggest that respondent had,
at that time, decided to actively market the product in such country.
[13] “The general picture which so emerges from the facts of the case is cer¬
tainly quite different from the behaviour a good faith and diligent contractor
should normally have assumed. For these reasons, the Tribunal considers that, in
supplying the first Country X company, respondent has also violated its duty
not to market the product outside the contractual territory.”
2. Other Contractual Obligations
[14] “The Tribunal considers that, in addition to the violation of the territorial
sales limitation, and leaving aside its obligation to pay the royalties due to
2. Art. 1134 of the French Civil Code reads:

“Agreements lawfully entered into take the place of the law for those who have made them.
They may be revoked only by mutual consent, or for causes authorized by law.
They must be performed in good faith.”
Translation available on <www.legifrance.gouv.fr>.

"¿yZi-ys.zz&y.y.I í” ... KSS:ÿ?1®ÿ:
si
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claimant which will be dealt with hereinafter, respondent has also violated
several important other contractual obligations, namely (1) the obligation to
provide claimant with product samples, (2) the obligation to provide claimant
with sales statements, and (3) its obligation of information. Conversely, the
-ÿ
Tribunal finds that respondent has not violated its duty of confidentiality (4),
r or breached the Contract in selling the product after termination (5).”
a. Obligation to provide product samples (yes)
[15] “The Contract provides that respondent had the duty to provide claim¬
ant, twice a year, with two samples of the product manufactured under the
licensed patented rights. Such a clause is essential to any patent and know¬
how license agreement, as it allows the licensor to control the quality of the
product manufactured under license. Respondent has not denied that it failed to
abide to such obligation, and that the samples were simply never provided to
claimant. Nor did it provide any valid reason for such failure, other than clai¬
mant’s silence. The Tribunal believes, however, that such silence did not release
respondent from its obligation to provide the samples of the product it was
producing. As a matter of fact, respondent was perfectly aware that it did not
own the patents and trade-mark used to produce the product. Consequently, it
had the duty to make sure that such production was compliant with the license
rights granted by the patent and trade-mark’s owner. Here again, respondent has
shown total disregard for its contractual duties.”
b. Obligation to provide quarterly sales statements (yes)
[16] “The same reasoning applies to respondent’s obligation, set by the

Contract, to provide claimant with quarterly sales statements. Here again, the
sales statements were simply never provided to claimant. Such situation has not
been denied by respondent, and neither has it been explained, but for the alle¬
gation that claimant’s silence would have allowed the licensee to ignore the
Contract, a contention the Tribunal rejects for the reasons which have already
been expressed. Consequently, the Tribunal cannot but find respondent in
breach of its obligation to provide claimant with sales statements.”
c. Duty of information (yes)
[17] “Claimant contends that it should have been informed by respondent of

the Institute’s requests for the purpose of the study. Even though the Contract
does not expressly provide for a clause obliging the licensee to inform the licen¬
sor of facts and circumstances pertinent to the trade-mark and patent’s

protection, the Tribunal believes that respondent was effectively under such an
obligation. First of all, such a clause is essential to any trade-mark and patent
license agreement, and can as such be considered as an implied term of the
Contract. Secondly, such information obligation is a general consequence of
Art. 1134 of the French Civil Code, according to which contracts have to be
performed in good faith. As a matter of fact, case law and doctrine are well
settled that good faith performance implies a certain degree of spontaneous
co-operation between the parties. Such co-operation imposes upon each party
to inform the other party of any non-confidential information pertinent to the
contract and useful to its interests. It should furthermore be pointed out that case
law does not limit such information obligation to the pre-contractual stage, but
extends it to the whole life of the contract.
[18] “The fact that the letters from the Institute were received by respondent
after the Contract’s termination does not release respondent from its obligation
to disclose them to claimant. As a matter of fact, the Tribunal notes that the
letters from the Institute were received by respondent in March and April 1999,
i.e. before the last sales of respondent to the first Country X company which
took place in September 1999. The Tribunal considers that the right granted to
respondent by the Contract, to sell its inventory after termination, implies that
the contractual obligations be also respected after termination and until the last
inventory sales. At the moment respondent received the Institute letters, it was
therefore still bound to perform the Contract in good faith. The Tribunal there¬
fore considers that respondent should have informed claimant of the letters
received from the Institute in March and April 1999.
[19] “The Tribunal, in this regard, does not share respondent’s contention that
such letters could be disregarded because they were circular letters of a general
scope. The letters were in fact personally directed to respondent, and very
specific in their scope and content (the up-coming study, its purpose, and its
planned dates). Respondent consequently knew that such letters could be of
interest to the trademark closure, and that such interest was even greater
considering the reputation of the Institute in the profession. Respondent should
therefore have forwarded such letters to claimant.”
d. Duty of confidentiality (no)
[20] “Conversely, the Tribunal does not share claimant’s contention that
respondent violated the confidentiality clause provided by the Contract in sup¬
plying the product to the first and second Country X companies. As a matter of
fact, the mere fact that the product was sold by respondent can obviously not be
considered as a violation of the obligation to keep confidential the information
related to the product’s manufacturing techniques. Otherwise the performance

r

of the agreement would have become impossible. A violation of the confiden¬
tiality agreement would imply the supply by respondent to a third party of
technical information related to the know-how and to the production process.
i As claimant has provided no evidence that respondent ever communicated such
J
information to third parties (including the first and second Country X compa¬
nies) the Tribunal shall reject claimant’s submission that the confidentiality
I article of the Contract has been breached by respondent.”
3. Breach of Contract by Sale of Product Subsequent to Termination
of Contract (no)
:::
[21] “Finally, it should be added that the Tribunal does not share claimant’s
contention that the sale of units after termination is, as such, a violation of the
Contract (independently of the violation of the territorial sales limitation). As a
matter of fact, respondent was allowed by the termination article of the Contract
(such article refers to cases of termination for breach of respondent’s obligation,
and is of course also applicable where the Contract’s termination is not moti¬
vated by such a breach, as it is presently the case) to complete the production in
progress after termination of the Contract and to sell its end-of-contract
inventory, as it in fact did, and no convincing evidence has been provided
that would have initiated new manufacturing operations (other than those in
progress at termination date) after termination.”
III. INFRINGEMENT OF TRADE-MARK RIGHTS

BY RESPONDENT (NO)
[22] “Claimant contends that respondent would have infringed its trade-mark
rights in selling the product outside the territory. Even though this issue is made
irrelevant by the fact that no damages have been claimed in relation to such
alleged counterfeiting, the Tribunal does not share this view. Leaving aside the
issue of knowing whether the trade-mark was validly registered in the United
States and in Country X at the time of the facts, it is a well established principle in
international trade-mark law that TM rights are exhausted with the first intro¬
duction on the market of the items bearing the trade-mark which means that such
rights do not allow their owner to restrict the circulation of trade-marked pro¬
ducts which have been introduced on the market with its consent. In the instant
case, the units sold by respondent have been manufactured under the trade-mark
in compliance with the Contract, and claimant has not submitted that the trade¬
mark would have been applied on the product in an unauthorized way.
[23] “Claimant has thus contractually agreed to the manufacturing and com¬
mercialization of the product under said trade-mark and is therefore not allowed

$
to contend that such commercialization would be tantamount to a violation of

its trade-mark rights, even though it took place outside of the territory defined
by the Contract. In other words, the sale of units outside the territory can well
constitute a breach of respondent’s contractual obligations, without constituting
a violation of claimant’s trade-mark rights.”
IV. CONTRACTUAL VIOLATIONS BY RESPONDENT NO GROUND

FOR DAMAGES
[24] “As indicated above, the Tribunal has found respondent in breach of
several of its obligations: the obligation not to market the product outside the
territory, the obligation to provide claimant with samples, the obligation to
provide claimant with sales statements, and the obligation of information.
The breach of respondent’s contractual obligation to pay royalties will be
dealt with hereinafter (at [41]-[43]). The question to be resolved is whether
such breaches constitute ground for awarding claimant the claimed damages.
[25] “It is worth recalling, at this stage, that under French law, civil liability
requires three conditions: the breach of one party’s obligations, a damage, and a
causal nexus between the breach and such damage. It should also be highlighted
that the onus of proving each of these conditions is borne by the claimant.
[26] “In this regard, the Tribunal finds of crucial importance to the case that
the losses allegedly suffered by claimant are integrally constituted by the adverse
consequences of the publication by the journal of the study performed by the
Institute. This point clearly appears from claimant’s written submissions, and
was confirmed by claimant during the final hearing. Besides, the Tribunal has
not found, in the claimant’s submissions and notes, any argument as to losses
stemming from another cause than said study. In particular, even though such
point is mentioned in the Terms of Reference, claimant has never since then
contended - nor has it of course evidenced - that the sale of the product in
Country X would have disrupted its local distribution network. Nor has claim¬
ant ever contended that the insufficient promotion of the product in the United
States and Canada would have caused a specific loss of profit. As to the harm to
claimant’s reputation, it has been submitted exclusively in relation to the pub¬
lication of the Institute study. Finally, claimant has not contended that the sales
to the first Country X company would have caused damages other than the loss
of royalties (an issue which will be dealt with hereinafter).
[27] “The dispute is therefore very clearly focused on one issue: is there a
causal nexus between the violation by respondent of its obligations and the
losses allegedly suffered by claimant further to the publication of the
study? The facts of the case clearly show that the losses allegedly suffered
by claimant are not the immediate consequence of the breach by respondent of

%

:
its obligations - and in particular of the obligation not to sell the product outside
the territory - but stem from a chain of events.
[28] “Such chain of events is the following: (i) respondent has supplied sam-
pies to the second Country X company (ii) the second Country X company
has then - more than one year later - supplied such samples to the Institute and
(iii) the Institute has then used them for the study.
[29] “The true situation might not even be that simple, as other causes might
also have contributed to the alleged losses. Respondent has for example con¬
tended that the negative results of the Institute study should be explained by the
fact that the testing method used was wrong .... This error of the Institute
would thus be a fourth cause in the chain of events. And if - contrary to respon¬
dent’s contention - we assume that the Institute did not use a wrong method,
then it should logically be deduced that the poor ranking of the product in the
study stems from the obsolescence of the licensed technology itself (let us recall
that since 1997, claimant was working on a new technology, but failed to inform
respondent of the incoming new product), which could therefore be another
possible cause of the alleged losses.
[30] “In order to resolve the causation question so raised, reference should,
first of all, be made to Art. 1151 of the French Civil Code,3 according to which,
even if the breach of one party’s obligations amounts to gross negligence, the
consequential losses can be indemnified only insofar as they have been the
immediate and direct consequence of such breach. French law, however, admits
in certain cases that a loss caused by a chain of events constitutes a direct con¬
sequence of the initial breach. In this regard, two different tests are adopted by
case law. First, the breach of a party’s obligation can justify indemnification,
even if the losses have been caused by a chain of events, when the breach was
such that it could, in the normal course of events, cause such losses (theory of the
causalité adéquate). Secondly, indemnification can also be allowed if evidence is
provided that the breach was a necessary condition of the losses, i.e. that without
the breach, the losses would not have been suffered (theory of the équivalence
des conditions). It should therefore be considered whether either of these two
tests are met in the instant case.
[31] “Regarding, first of all, the violation of the territorial sales limitation,
attention should only be paid to the supply of the product to the second
3. Art. 1151 CC reads:

"Even in the case where the non-performance of the agreement is due to the debtor’s intentional
breach, damages may include, with respect to the loss suffered by the creditor and the profit which
he has been deprived of, only what is an immediate and direct consequence of the non-performance
of the agreement.”
Translation available on <www.legifrance.gouv.fr>.

Country X company, as the sales to the first Country X company have no link
whatsoever with the publication of the Institute study. The Tribunal, however,
finds that such supply of samples to the second Country X company is not
connected closely enough with the publication of the Institute study in order
to be considered as its cause. In this regard, the Tribunal notes that the supply of
samples to the second Country X company took place in January 1998, whereas
the supply of the samples by the second Country X company to the Institute
took place in May 1999. Obviously, at the time of its supply to the second
Country X company, respondent could not anticipate that such samples
would be, almost one and a half years later, used for the purpose of an important
comparative study. And there is no evidence to suggest that, in or around May
1999, the second Country X company informed respondent of its intention to
supply the samples to the Institute. The Tribunal also finds relevant that, at the
time of its supply to the second Country X company and until the termination of
the Contract, respondent has never been aware of the new technology that
claimant was developing for the production of a ‘new trade-mark’ product.
Under the profile of the causalité adequate theory, the breach is therefore far
too remote from the damage to be considered as its cause.
[32] “From the point of view of the theory of the équivalence des conditions,
the Tribunal reaches the same conclusion. There is, in fact, no evidence to sug¬
gest that had respondent not supplied the samples to the second Country X
company, the Institute could not have managed to obtain trade-mark units from
another source, such as another trade-mark licensee or distributor around the
world. On the basis of the evidence provided, the Tribunal is therefore not in a
position to affirm with certainty that the supply of samples by respondent to the
second Country X company has been a sine qua non condition of the inclusion
of the ‘old trade-mark’ product in the Institute study. The Tribunal therefore
finds that the breach of the Contract’s territorial sales limitation cannot be
considered with certainty as a cause of the publication of the Institute study.
[33] “The same conclusion applies to the violation of respondent’s obligation
to provide claimant with samples of the product manufactured under license, as
well as to the violation of respondent’s obligation to provide claimant with
quarterly sales statements. As a matter of fact, there is no relationship whatso¬
ever between such facts and the publication of the Institute study.
[34] “Besides, even assuming that the negative results of the study were due to
the obsolescence of the ‘old trade-mark’ technique and that the Institute could
not have obtained samples of the ‘old trade-mark’ from another source - which
assumptions have not been proved - there is no evidence to suggest that, had
claimant received such samples or such sales statements before the supply of
samples to the second Country X company, it would have required respondent
to stop all trading in the ‘old trade-mark’ product. On the contrary, the passivity

I
and lack of care shown by the claimant in the monitoring of the Contract
suggests that such company might not have reacted accordingly. Here again,
claimant has therefore failed to provide evidence of a causal nexus between the
breach of respondent’s obligation to provide samples and sales statements and
the consequences of the publication of the Institute study.
[35] “As to respondent’s failure to inform claimant of the letters received in
March and April 1999 from the Institute, the Tribunal acknowledges that such
breach could in abstracto, and per se, be considered as a cause of the damage
suffered because of the publication of the Institute study. However, a close
review of the facts of the case has led the Tribunal to conclude that there is,
once again, no such causal nexus.
[36] "It should, first of all, be highlighted that, in the Tribunal’s opinion,
i respondent could not have imagined, at the time it received the Institute letters,
that in absence of reply the Institute would turn its request to the second
Country X company. The request from the Institute to the second Country
X company could all the more be less anticipated given that, in its March
1999 letter, the Institute had specifically mentioned that any samples sent for
testing would need to be of current production, and accompanied by technical
information on the use of the product and its manufacturing technique, condi¬
tions which could not be met by the samples sent to the second Country X
company in January 1998. Moreover, claimant has not proved that such tech¬
nical information was supplied by respondent to the second Country X
company.
[37] “In summary, by using samples obtained from the second Country X
company without advising the respondent or verifying that the samples were
compliant to its own test protocol, the Institute has acted negligently, and such
negligence could not have been anticipated by the respondent. It is thus impos¬
sible to consider that the failure by respondent to inform claimant of the
Institute letters was such that it implied, in the normal course of events, the
production of the damage caused to claimant by the publication of the Institute
study.
[38] “It cannot be considered with certainty, moreover, that such damage
would not have been suffered had respondent informed claimant of the
Institute’s letters. As a matter of fact, claimant has proved to be, all along the
Contract’s life, totally disinterested from its licensee’s activities, and such pas¬
sivity cannot induce the Tribunal to believe that claimant would have
immediately reacted had it been informed of the imminent Institute testing.
In essence, the Tribunal believes that the contractual breaches of respondent’s
obligations are not linked by a causal nexus to the damage stemming from the
publication of the Institute study, which - it is worth recalling - is the only one
I claimant has allegedly suffered.
Í,.
t Reprinted from the Yearbook Commercial Arbitration 75

[39] “The true direct cause of claimant’s damage should be found elsewhere: in
the delivery by the second Country X company without informing respondent
of samples to the Institute, in the negligent use by the Institute without inform¬
ing respondent of oldish units not compliant with the conditions indicated in its
March 1999 letter, maybe in the wrong testing method used by the Institute or
even in the obsolescence of the ‘old trade-mark’ technique, which was being
replaced by a new technique which claimant failed to inform respondent about.
[40] “Finally, and in conclusion, it should be recalled that claimant has never
alleged nor adduced evidence that the product supplied to the second Country X
-
company which may have ended in the Institute’s hands - had not been
manufactured by respondent in compliance with the Contract’s provisos and
the technical instructions claimant had provided respondent with. It should
therefore be considered that the damage suffered by claimant has not been
caused, either, by a faulty manufacturing of the product by respondent. The
claim for damages shall consequently be rejected in full.”
V. ROYALTIES
[41] “Claimant contends that royalties are due by respondent on the contrac¬
tual sales. Such claim, which was not mentioned in the Terms of Reference, has
been authorized by the Tribunal according to Art. 19 of the Rules.4 Respondent
submits, on the contrary, that such royalties would not be due because claimant
would have been negligent in failing to claim them.
[42] “The Tribunal does not share such argument. As a matter of fact, if the
argument means that claimant would have breached an obligation to claim the
royalties’ payment, the Tribunal believes that there can be no such violation
when the licensor was deprived by the licensee of the information necessary to
request the payment, i.e. the sales statements. If the argument means that the
claim for payment of royalties would be time-barred by a statute of limitation,
the Tribunal considers that no such statute can be applied against a party which
has been prevented to request the payment, according to the principle contra non
valentem praescriptio non currit. Moreover, pursuant to the Contract,
respondent was obliged to pay the contractual royalties to claimant without
any requirement of a written request for payment. The Tribunal therefore
holds that the claim for payment of the royalties is grounded in principle.
4. Art. 19 of the ICC Rules of Arbitration reads:

“After the Terms of Reference have been signed or approved by the Court, no party shall make
new claims or counterclaims which fall outside the limits of the Terms of Reference unless it has
been authorized to do so by the Arbitral Tribunal, which shall consider the nature of such new
claims or counterclaims, the stage of the arbitration and other relevant circumstances.”

:c==i
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[43] “As to the amount that claimant should be allowed to recover, the
Tribunal notes that the claim is justified up to the minimum royalties provided
by the Contract and also for an additional amount corresponding to the con-
tractual 5% royalty on respondent’s sales from 1994 to 1999. Claimant also
L:
claims an additional royalty corresponding to alleged additional sales realized
by respondent after the Contract’s termination on the basis of the raw material
which respondent disposed of at that time. Respondent however, has denied
such additional sales, and no evidence of their existence has otherwise been
provided by claimant. . .
VI. COSTS
[44] “Arbitral international tribunals have broad moderating powers in allo¬

cating the defence and arbitration costs, and they are not bound, in doing so, to
;ÿ impose the payment of such costs upon the failing party when particular cir¬
cumstances require a different decision. In the instant case, claimant has suc¬
ceeded in demonstrating that respondent has repeatedly violated its contractual
obligations. Consequently, even if claimant has not succeeded in all its claims,
respondent should bear most of the legal and arbitration costs of the case.
Respondent will therefore bear its own legal costs, two thirds of claimant’s
reasonable legal costs, and five sixths of the Costs of the arbitration.
(••••)
[45] “Claimant has also justified [an amount] as legal costs. Such costs are
reasonable given the complexity of the case, and respondent shall be ordered
to pay two thirds of that amount to claimant. The Tribunal considers that the
fees of ‘consultant’ (expert consultant hired by claimant) should be borne by
claimant since it failed to prove the required causal nexus.”

I
£
H f!
l 'i
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t Final Award in case no. 12421/MS of 2005
i Parties: Claimant: Company X (Barbados)

S
Respondent: Exclusive Distributor Y (Italy)
I Place of
arbitration: London, UK
f
< Published in: Unpublished; original in English
Subject matters: —fallimento (winding-up proceedings)

- breach of contract
- sales in excess of maximum trade price
- restitutionary damages
Facts
On 21 June 2000, X and Y entered into a Distribution Agreement under which Y

became the exclusive distributor of X’s products in Italy. The Agreement was
governed by English law and provided that disputes be settled by ICC arbitra¬
tion in London by a panel of three arbitrators.
A dispute arose between the parties when X terminated the Agreement, alleg¬
ing that Y breached it by selling products to customers at a higher price than the
maximum trade price established by X and by selling products at a discount to
its subsidiary H. X commenced ICC arbitration, seeking a declaration that it
lawfully terminated the Agreement and restitutionary damages by way of an
account of profits in respect of the profits Y had failed to pass on to X. X also
sought compensation by way of damages, arguing that Y’s actions resulted in a
loss of sales, as did Y’s inclusion of a copyright fee due under Italian law to the
selling price of the products. Y counterclaimed for damages suffered as a result
of X’s allegedly premature and wrongful termination of the Agreement.
On 1 May 2004, Y was placed in liquidation (liquidazione ). On 30 November
2004, the ICC arbitral tribunal issued a Partial Award stating that X lawfully
terminated the Distribution Agreement because of Y’s breaches of contract.
On 1 February 2005, the tribunal was informed that Y had been placed in
fallimento (winding-up proceedings) on 15 September 2004 by the Bankruptcy
Division of the Court of First Instance of Bologna, Italy; the liquidator submit¬
ted that as a matter of Italian law the arbitration could no longer proceed and
that all disputes between the parties, including Y’s counterclaim, were to be
Reprinted from the Yearbook Commerciaf Arbitration 79

decided, by the Bologna bankruptcy court. X argued in reply that this rule did
not apply to non-monetary claims and that Y and its liquidator were still bound
by the arbitration agreement as far as the counterclaim was concerned.
In respect of its claim against Y, X argued that English, rather than Italian, law
applied by virtue of the provision in the EC Insolvency Regulation that the law
of the State of the opening of insolvency proceedings (here, Italian law) does not
apply to “lawsuits pending” (here, allegedly, the English arbitration). X initially
accepted that, under English law, its claim against Y could not be settled in
arbitration because of Y’s fallimento. Its position changed, however, following
a 2004 decision of the High Court in Mazur Media (see below), in which the
court held that the provision of English law that court proceedings must be
stayed pending insolvency proceedings does not apply to foreign insolvency.
X therefore submitted that the arbitrators should proceed to make a final award
on X’s monetary claims for damages, as well as on Y’s counterclaim.
The arbitral tribunal agreed with X, “but not without much doubt and hes¬
itation”, noting that the situation was paradoxical: if the winding-up order had
been made in England, arbitration would have been stayed; if the arbitration had
taken place in Italy it would have been stayed as a result of Y’s fallimento.
However, because the arbitration was English and the winding-up order
Italian, there was to be no stay.
The arbitrators concluded that in the circumstances, also considering Y’s
intention not to pursue the counterclaim, X was entitled to an award dismissing
that counterclaim. They noted however that whether “that award has any and if
so what effect will be a matter for the court before which the question arises”.
They tribunal then proceeded to decide on the merits of X’s claims against Y.
The Agreement between the parties provided that Y was not to exceed the trade
price for the products, being “the monthly gross trade list price of the
Products .. . issued on a monthly basis to Y by [X]”. Y did in fact sell products
in excess of the published trade price, contending that the published trade price
was not the maximum selling price for the purposes of the Agreement and that
since no such maximum price was ever notified to it, it was free to sell the
products at whatever prices it chose.
The arbitrators agreed, on the basis of the evidence, with X’s contention that
the parties operated on the basis that the published trade price was the same as
the maximum selling price. They therefore held that Y was in breach of the
contract when it sold products to customers at prices in excess of the trade price.
The arbitral tribunal dismissed X’s contention that Y also breached the
Agreement by selling products at discount rates to subsidiary H. The tribunal
held that nothing in the Agreement obliged Y to pass on profits to X.
Nor did Y breach the Distribution Agreement by including the cost of an
Italian licensing fee in the selling price of the products. X alleged that this
resulted in an increase in price that depressed sales. The arbitrators reasoned

«
-

that it was unlikely that the inclusion of a minimal charge such as the one at
issue - approximately €0.05 - affected sales.
X sought restitutionary damages in respect of Y’s breaches of contract. The
tribunal held that X was not entitled to this exceptional remedy, as it was not
proved or apparent that Y was guilty of deliberate, cynical and morally repre¬
hensible conduct. The appropriate relief for Y’s only breach of contract - selling
products above the trade price -was therefore “the normal one” of compensation.
As mentioned above, X claimed that there had been a loss of earnings because
Y’s actions depressed sales of the products. X argued that it could show by
reference to comparative sales performances that the shortfall in sales in Italy
had been 8%.
C; The tribunal was unable however to conclude on the evidence before it that
overall sales were depressed to the extent indicated, or to any extent, reasoning
that there might be any number of reasons why X’s products sold less well in
Italy than in other countries.
The tribunal therefore dismissed all claims and counterclaims, only awarding
nominal damages to X for Y’s breach of contract.
Excerpt
(....)
[1] “Our Partial Award (AwardNo. 1), dated 30 November 2004, was notified
to the parties on 8 December 2004. As recorded in the award ... the tribunal
received and cook into account written submissions and witness statements
which were submitted to it on behalf of Y by its then solicitors Z on 21
September 2004.
[2] “Y had been placed in liquidation (liquidazione ) with effect from 1 May
2004 following a shareholders’ meeting on 2 April 2004. At a hearing on 11 May
2004, the arbitrators were informed by solicitors Z that the liquidator wished to
continue with the arbitration, on the ground that Y’s counterclaim was regarded
as a significant asset of the company.
[3] “Following notification of the Partial Award there was a period of inac¬
tivity on the part of Y, and solicitors Z did not respond to requests by both
solicitors W [for X] and the tribunal to state their client’s position as to the
further conduct of the arbitration (although by letter dated 23 December 2004,
solicitors Z sought an extension of time to ‘appeal’ the Partial Award, to which
the Chairman responded by letter on 13 January 2005).
: [4] "By means of a communication dated 1 February 2005 from [Y’s new
solicitors] K, the tribunal was informed, for the first time, that, on the liquida¬
tor’s application, the Bankruptcy Division of the Tribunale [Court of First
Instance] of Bologna had by Order dated 15 September 2004 (a copy of
::
v
; Reprinted from the Yearbook Commercial Arbitration 81
i
which was supplied to the arbitrators) placed Y in fallimento. These are ‘insol¬
vency proceedings’ and ‘winding-up proceedings’ within the meaning of Art. 2
of Council Regulation No. 1346/2000/EC on Insolvency Proceedings (the
Insolvency Regulation). The Order of the Bologna Court appointed A as cur-
atore (liquidator under the Insolvency Regulation). By a subsequent Order
dated 27 September 2004, the Court appointed B [of law firm K] as legale
della procedura to assist liquidator A in dealing with the issues raised by the
ongoing arbitration proceedings before the present tribunal.
[5] “We do not know why it was that we were not informed of the orders of
the Bologna Court and the appointment of A and B until February 2005, or why
submissions were made by solicitors Z ostensibly on behalf of Y at a time after
the order of fallimento had been made.”
I. EFFECT OF THE ITALIAN FALLIMENTO (WINDING-UP

PROCEEDINGS)
[6] “B has submitted to us that the Partial Award is, as a matter of Italian law,
entirely ineffective so far as Y in fallimento is concerned. This is disputed by
solicitors W on behalf of X. We take the view that it is not for us to pronounce on
the validity or effectiveness (if any) of the Partial Award as a matter of Italian or
any other law: this is a question to be addressed and decided by the courts of Italy
or of any other country before which it is sought to enforce the award, or to rely
on it as finally determining as between X and Y the issues with which it deals.
[7] “As well as insisting on the validity of the Partial Award, X’s representa¬
tives argue that the arbitration can and indeed must continue until it terminates
by the making of a final award. We have received extensive and helpful written
submissions both from B and from X’s representatives as to the effect of Y’s
fallimento on the arbitration, having regard to the provisions of Italian law and
the Insolvency Regulation.
[8] “B submits that as a matter of Italian law, in particular Art. 52 of the
Bankruptcy Law (legge fallimentare), the arbitration cannot proceed in any
respect, either as regards X’s claim or Y’s counterclaim, and that all disputes
between the parties fall to be decided by the Bankruptcy Court of Bologna. B
submits that the arbitral tribunal is bound to give effect to Italian law, having
regard in particular to Arts. 4 and 17 of the Insolvency Regulation, by staying all
further proceedings in the arbitration.
[9] “X’s solicitors accept that the effect of Art. 52 is that all monetary claims
against a company in fallimento must be brought before and dealt with exclu¬
sively by the Bankruptcy Court as part of the process of liquidation. However,
they contend that the same does not apply to non-monetary claims against the
company; and they submit that the company (and the liquidator) continue to be

U
*
F CASE NO. 12421, 2005 ARBITRAL AWARDS
bound by the arbitration agreement so far as any counterclaim falling within its
scope is concerned. It would not, therefore, in solicitors for X’s submission, be
open to the liquidator of Y to bring court proceedings to recover losses allegedly
suffered by the company due to X’s breaches of the Distribution Agreement of
21 June 2000, as liquidator A has indicated he is considering doing.
[10] “The position originally adopted by solicitors for X was to accept that the
Í falUmento of Y meant that the arbitration could not, or at least need not, proceed
so far as X’s claim was concerned: see, in particular, their letter of 2 March 2005.
The argument presented on behalf of X was and is that the effect of the fall-
imento falls to be determined by English, not Italian law, by virtue of Arts. 4.2(f)
and 15 of the Insolvency Regulation.1 Under English law, by virtue of Sect.
130(2) of the Insolvency Act 1986 proceedings against a company in liquidation
are automatically stayed by operation of law, unless and until the court gives
permission for them to be continued. Without conceding that Sect. 130(2) nec¬
essarily applies to arbitration proceedings, solicitors for X were, as we under¬
stood the position, willing to accept that the arbitration should not proceed so
far as their client’s claim was concerned.
[11] “X’s position has, however, now changed, as a result of the decision of
Lawrence Collins J. in Mazur Media Ltd v. Mazur Media G.M.B.H (2005) 1
Lloyd’s Rep. 41. In that case the question arose whether the effect of Sect. 130(2)
of the Insolvency Act was that English court proceedings should be stayed
following insolvency proceedings in the country of the debtor, to which the
Insolvency Regulation applied. It was assumed without the contrary being
argued that the question was to be answered as a matter of English law, by
virtue of Art. 15 of the Insolvency Regulation. Lawrence Collins J. held that
Sect. 130(2) has no application to foreign insolvency proceedings, and that
whereas the English court has an inherent jurisdiction to stay proceedings in
the interests of justice such a course could not be taken where the effect of doing
so would be to circumvent the provisions of Council Regulation No. 44/2001
(the Judgments Regulation).
1. "Art. 4.2(f) provides:

‘(2) The law of the State of the opening of proceedings shall determine the condition for the
opening of those proceedings, their conduct and their closure. It shall determine in particu-
lar: . . . (f) the effects of the insolvency proceedings on proceedings brought by individual cred¬
itors, with the exception of lawsuits pending.’
Art. 15 provides:
‘The effects of insolvency proceedings on a lawsuit pending concerning an asset or a right of
which the debtor has been divested shall be governed solely by the law of the Member State in
which that lawsuit is pending.’”
Reprinted (tom the Yearbook Commercial Arbitration 83

[12] “On the basis of this decision and reasoning it is now submitted on behalf
of X that the arbitrators should proceed to make a final award not merely on Y’s
monetary claim but also on X’s monetary claims for damages arising from Y’s
breaches of the Distribution Agreement. At solicitors for X’s request we held a
further hearing on 23 May 2005 at which the matter was debated with counsel
representing X.2 Counsel submitted not merely that we could and should make a
final monetary award in X’s favour, but that we had no alternative but to do so:
he pointed out that this is an English arbitration governed by English law, which
is both the proper law of the contract and the lex curiae. By virtue of Art. 15
English law determines the effect on the arbitration of the fallimento of Y. It is
now clear that Sect. 130(2) has no application to foreign insolvency proceedings.
And arbitrators have, counsel submitted, no power either under the ICC Rules
or under the general law to stay arbitration proceedings. A party to an arbitra¬
tion who wishes to have an award in its favour is entitled, provided, obviously,
that it can make out its case, to insist on having one from the arbitral tribunal.
[13] “We have decided that we should accept these submissions made on
behalf of X but not without much doubt and hesitation. The position is para¬
doxical: if a winding-up order had been made against Y in England (which could,
of course, have been done, notwithstanding that it is not an English company)
the effect of Sect. 130(2) would have been to stay the arbitration, assuming it
were held to constitute an ’action or proceeding’ within the meaning of that
statutory provision. Even if Sect. 130(2) does not apply to arbitration proceed¬
ings as such, it undoubtedly applies to court proceedings to enforce an arbitral
award. If the arbitration had been proceeding in Italy the effect of Y’s fallimento
would, again, have been to stay the arbitral proceedings: see for example [Italian
Supreme Court], 4 September 2004 no. 17891 and the other decisions there cited
at pp. 4-5. But because the arbitration is English and the winding-up order
Italian there is to be no stay.
[14] “We also have misgivings about the meaning and effect of Art. 15 of the
Insolvency Regulation. In the first place, it is not clear that an arbitration is a
‘lawsuit pending’: the phrase might only refer to court proceedings which are
pending. We were told by counsel that neither the text of the Insolvency
Regulation in other languages nor the travaux préparatoires gave any real assis¬
tance as to the meaning of the phrase.3 Secondly, we are not clear as to the
2. "Although Y was not represented at this hearing, there being, as we were informed, no funds to
enable representation to be arranged, we have, as stated above, been provided with full and helpful
submissions by B, which we have taken fully into account in our deliberations.”
3. “Following the hearing we were helpfully supplied with the text of the Virgos/Schmit Report on
the Convention, and the text of Art. 15 in various other languages. These documents confirm the
correctness of what counsel said.”
84 Reprinted from Ihe Yearbook Commercial Arbitration

I
meaning of the phrase ‘concerning an asset or a right of which the debtor has
been divested’ in the Article. Presumably it is intended to limit or restrict in
some way the types of ‘lawsuit pending’ to which the Article applies - otherwise
it would simply have read: ‘The effects of insolvency proceedings on a lawsuit
pending against the debtor shall be governed solely by the law of the Member
State in which that lawsuit is pending.’ Again, the travaux préparatoires do not
provide further assistance as to the meaning of the phrase. But, as noted above,
Art. 15 was assumed to be applicable in the Mazur Media case, and it is clearly
possible to regard the present arbitration proceedings as a lawsuit concerning an
.j-
asset or right of which Y has been divested, namely the benefit of its rights under
the Distribution Agreement itself.
[15] “B has made it clear that he has no intention of pursuing the counterclaim
on behalf of Y: on the contrary, he says the arbitration agreement has become
entirely irrelevant so far as the company in fallimento is concerned. In these
;r circumstances, insofar as Y’s various claims could have been maintained by way
of counterclaim in the face of our Partial Award (a matter on which there might
t have been considerable scope for debate) it seems to us that X is entitled to an
award dismissing the counterclaim; but whether that award has any and if so
what effect will be a matter for the court before which the question arises.
[16] “At the close of the hearing on 23 May 2005 we invited X’s representa¬
tives to state within six weeks the terms of the orders they sought by way of final
award, and to provide such evidence as they considered necessary to make good
their entidement to such orders. In response, we were provided with a List of
Issues, extensive further written submissions and a supporting Witness
Statement made by Mr. C of solicitors W on behalf of X, together with exhibits.
Having considered these materials we propose to deal as succinctly as possible
with each of the remaining issues.”
II. MERITS
1. Sales in Excess of Maximum Trade Price
[17] “Definitions clause (o) of the Distribution Agreement dated 21 June 2000
stated the price payable by Y for products supplied by X as follows:
‘(i) For Products I (excluding Budget Products) the Trade Price less 55% of
the Trade Price for Products III and less 15% of Trade Price for Products IV
and less any discount referred to in 8.6 herein or such other price as agreed;
(ii) For Products II it will be the Trade Price less a 15% commission dis¬
count off the Trade Price of the Products II. At the end of each Quarter
XI . .. will review the average retail price of the Products II and apply any
i

relevant retrospective discount in the range of 0-10 percent (plus or minus)

of the Trade Price and less any discounts referred to in clause 8.5 and 8.6
herein;
(iii) For all Products [X] will set the maximum retail price at which Y can
sell the products for/
The Trade Price was defined as ‘the monthly gross trade list price of the
Products priced in Italian Lire and issued on a monthly basis to Y by [X]’.
Clause 10.1(i) of the Distribution Agreement provided:
‘Y will not sell the Products above the maximum sale price informed to Y.
[X] will notify Y of the maximum sales price as soon as it is aware of it and
of the applicable .. . price band. This term is a fundamental term of this
agreement.’
[18] “Y accepts in its Answer to the Request for Arbitration that it sold pro¬
ducts to its customers at prices in excess of the Trade Price. But it contends that
this was perfectly permissible, and not a breach of the agreement. The Trade Price
was not the maximum selling price for the purposes of [the definitions clause (o)
above] or clause 10.1(i). No such maximum selling price was, says Y, ever notified
to it. It was, therefore, free to sell the products at whatever prices it chose.
[19] “In response, X contends that the parties throughout operated on the
basis that the published Trade Price was also the maximum selling price. [The
Witness Statement of Mr. C of solicitors W] (here summarizing the evidence
primarily of Mr. M, a Senior Manager of X) explains that it was essential to X
that the Trade Prices should not be exceeded, since if they were royalties payable
by X to J (manufacturers of the product) would be increased. Documents exhib¬
ited to the witness statement support the contention that Y understood that the
maximum sale price and the Trade Price were one and the same thing ....
[20] “Y pleads that the imposition of a maximum selling price infringed Art.
81(1) of the EC Treaty. But it seems to us that the Distribution Agreement was a
vertical agreement to which the block exemption granted by Regulation 2790/
1999 applied, and that the imposition of a maximum sale price upon a distributor
is permissible under Art. 4 of that Regulation.
[21] “We therefore find that Y was in breach of the contract when it sold
products to its customers at prices in excess of the relevant Trade Price.
[22] “The primary relief which X seeks as a consequence of this breach is an
account of profits in respect of those sales in excess of the Trade Price where the
excess was not passed on to X. This claim is put in two ways: first, it is said that Y
owed fiduciary duties to X and so is liable to account as a fiduciary. Reliance is
placed on the judgment of Mason J. in the High Court of Australia in Hospital

J
Products Ltd v. United States Surgical Corporation & ors (1985) 156 CLR 41 at
pp. 92-102.
[23] “But on the issue of fiduciary duty, Mason J. was in the minority in that
case. The majority held that the relationship between the parties to a commercial
distributorship agreement was not a fiduciary one, for the reasons explained by
Gibbs. CJ at pp. 72-74, Wilson J. at pp. 118-119 and Dawson J. at pp. 140-149.
We respectfully consider that the opinion of the majority of the High Court of
Australia correctly reflects the English law on this question, and we see nothing
in the present Distribution Agreement to distinguish it from an ordinary,
commercial distributorship contract, where each party acts, subject to the
r- terms of the contract, on its own behalf and in its own interests.
[24] “Alternatively, X seeks an account of profits or restitutionary damages, a
remedy which is now available under English law following the decision of the
House of Lords in A-G v. Blake (2001) 1 AC 268, and which was granted by
Morritt V-C in Esso Petroleum Company Ltd v. Niad Ltd (2001) EWHC
0004155 on facts which have some similarity with those of the present case,
in that the dispute was between Esso and the operator of one of its outlets
under a sole distribution agreement. This claim raises legal questions of
considerable difficulty which we do not propose to discuss at length in this
Award. We make the following observations at this stage:
(1) whilst Lord Nicholls made it clear in Blake that the remedy of an account
of profits for breach of contract (there being no fiduciary relationship
between the parties) is only to be granted in exceptional circumstances
(at p. 285) he did not identify, except in the most general terms, what
those circumstances are;
(2) in the great majority of cases the principle that damages are awarded to
compensate the claimant, not to punish the defendant, willcontinue to apply;
(3) one feature which does appear liable to attract the remedy is deliberate and
cynical conduct on the part of the contract-breaker, although Lord
Nicholls said that this feature would not by itself suffice (at p. 286). The
fact that the defendant had behaved in such a way as to offend the court’s
sense of propriety, so that justice cried out for some remedy to be found,
was clearly a feature which influenced the House of Lords in Blake itself,
and also the Court of Appeal in Experience Hendrix v. PPX Enterprises
Inc. (2003) 1 All ER (Comm.) 830. Professor Burrows (a leading academic
authority on this subject) concludes that deliberate, cynical and morally
reprehensible conduct is, indeed, a necessary (although not a sufficient)
condition for an award of restitutionary damages;4
4. "See Burrows Remedies for Torts and Breaches of Contract 3d ed. (2004) pp. 406-407.”
Reprinted from the Yearbook Commercial'Artiitnition 87

(4) Esso Petroleum Company v. Niad Ltd can be explained on the basis that
there was, indeed, such conduct on the part of the defendant: in that case
Esso, in order to counter the severe competition it was facing from super¬
markets such as Tesco and Sainsburys, set up an elaborate scheme, to
which the defendant petrol retailer expressly subscribed, under which pet¬
rol was supplied to retailers under special terms and in return the retailers
agreed to supply petrol to the public at ‘Pricewatch’ prices, which were
equivalent to the lowest prices available daily in the relevant geographical
area. The scheme was supported by extensive national and local advertis¬
ing. Having expressly agreed to participate in the scheme, the defendant
proceeded to charge its customers prices for petrol greater than the daily
Pricewatch prices, and continued to do so following warnings that it
should stop. So the defendant got the benefit of the Pricewatch terms
for its inward supplies from Esso, together with the benefit of the adver¬
tising for which Esso paid, and yet itself sold the petrol on at prices which
gave the lie to the advertising and the whole basis of the Pricewatch
scheme. Given that it was, as Morritt V-C said (at p. 63), ‘almost impos¬
sible to attribute lost sales to a breach by one of several hundred dealers
who operated Pricewatch’ it is not surprising that the judge was prepared
to order an account of profits, or alternatively restitutionary damages
(equivalent to the difference between the Pricewatch prices and those actu¬
ally charged by the Defendant) in the face of such flagrant behavior.
[25] “Having regard to the points set out above we do not consider that X has
made out a sufficient case for an award of restitutionary damages or an account
of profits. They do not in terms allege that Y was guilty of deliberate, cynical and
morally reprehensible conduct, and we certainly do not feel able to conclude
that it was, on the basis of the limited materials we have seen and not having
heard Y’s side of the story. It is to be noted that the claim under consideration is
only made in relation to Products I, because X accepts that additional profits
made on sales of Products II were duly passed on to it under the payment
mechanism for those products [footnote omitted]. This does not suggest delib¬
erate and cynical wrongdoing on the part of Y. Moreover, the present case does
not have the particularly striking feature present in the Esso case - that the
distributor was taking advantage of the special terms offered by the supplier,
together with the latter’s expenditure on advertising, whilst deliberately failing
to honour its own side of the bargain.
[26] “Accordingly we take the view that X’s remedy for Y’s breach is the
normal one of compensatory damages. We consider below whether any recov¬
erable loss has been proved on the evidence.”

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2. Discount Sales to Y’s Subsidiary
[27] “Y had a subsidiary called H5 through which it sold products licensed

under the Distribution Agreement to certain categories of customer. H pur¬
chased the products from Y at what X terms ‘discount rates’, ie. at prices
lower than those charged to Y’s other customers. H sold those products on at
a profit. The primary complaint of X is that H’s profits were not ‘passed on or
disclosed to X’ [footnote omitted]. But the tribunal cannot find in the
; Distribution Agreement anything obliging Y to pass on any profits to X,
even assuming (which, for present purposes at least, it is prepared to do) that
:P H falls to be treated as equivalent to Y itself. Nor do we understand what case is
ñ based on the alleged failure to disclose H’s profit margins to X. In the case of
Products II we can, of course, see that X would have genuine grounds for
complaint if, treating sales made by H as equivalent to sales made by Y itself,
the average prices used for the purpose of calculation of the retrospective dis¬
count under definitions clause (o)(ii) of the Distribution Agreement were lower
than they should have been, so that excessive retrospective discounts were
allowed.6 But the claim is not presented on this basis.
[28] “The same answer seems to us to apply to X’s complaint that, in the
accounts which it presented to X, Y deducted the amounts attributable to certain
rebates allowed to H to its customers. If this resulted in the payment or
allowance of excessive retrospective discounts there would be a claim for the
relevant amount. But that is not the claim which is made.
[29] "X’s primary claim under this heading ... is for the amount by which
the prices charged by H to its customers exceeded the prices charged by Y to
H. But we can see no basis for such a claim, any more than we can in relation to
the claim which is made in respect of direct sales by Y to customers. X was
entitled to receive the Trade Price. Y could sell the product for whatever sums
it chose beneath that price (upon the basis that, as we have found on the limited
evidence before us, the Trade Price was the same as the maximum retail price).
If sales by H at prices greater than the Trade Price, along with such sales made
by Y itself, diminished overall sales of product under the Distribution
Agreement X is entitled to damages as compensation, if it can prove that it
has suffered any.”
5. "Owned as to 98% from May 1998 to November 2001 and 100% from then until 31 March 2002
when according to Y’s Amended Answer H was merged with Y.”
6. "The same might apply to the further retrospective discounts allowable under clauses 8.5 and 8.6
of the Distribution Agreement.”

3. SIAE Stickers
[30] “The SIAE [Societá Italiana degli Autori ed Editori - Italian Association
of Authors and Editors] stickers are a form of collective licensing fee in Italy.
They had to be purchased and affixed to the products covered by the Distribution
Agreement before sale. Clause 5.9 of the Distribution Agreement provided:
‘X will pay for the compulsory SIAE stickers for the B Products and A
Products and Y will source, pay and apply the SIAE sticker for the C Products.’
[31] “Having invoiced X for the stickers for the relevant products as provided
for by this clause, Y also included a charge in respect of the stickers in the prices
which it charged its customers. X complains that this constituted a breach of Y’s
obligations under the Distribution Agreement to maximize sales and revenue
(clauses 5.1 and 10.1(h)) and to refrain from any action that might reduce sales. Y
responds that it was entitled to charge whatever prices it wished for the pro¬
ducts, and that the inclusion of the element relating to the stickers reflected the
costs incurred by it over and above the bare cost of the stickers themselves.
[32] "The Tribunal agrees with Y on this point, except that, as we have already
found on the evidence before us, Y was not entided to charge more than the
relevant Trade Price for products. We find wholly implausible and reject the
suggestion that the inclusion in Y’s selling prices of a small element (approxi¬
mately €0.05) referable to the SIAE stickers of itself constituted a breach of Y’s
obligations under clause 5.1 and 10.1(h) of the agreement. To the extent that this
element contributed to the excessive prices above the Trade Prices X’s remedy is
in damages, as already explained.”
4. Compensation
[33] “We have found that Y was in breach of the Distribution Agreement
insofar as the prices charged by it, or by H, were above the notified Trade
Prices. But we have rejected X’s claims that it is entitled to be paid the difference
between the Trade Prices and the actual selling prices, whether as an account of
profits or on any other restitutionary basis.
[34] “X claims in the alternative damages for these breaches of contract. Para.
52 of the Consolidated Statement of Case states as follows:
‘X also makes a claim in damages for its loss of earnings by reason of the
following:
(i) the reduction in sales and loss of revenue caused by Y selling Products
above the maximum price set by X;
(ii) The reduction in sales revenue as a result of Y passing on the cost of the
SIAE sticker to its customers.

By reference to comparative sales performances for X’s Products in other
£ countries, the shortfall in sales up to November 2002 arising by reason of
Y’s breaches can be demonstrated to be 8% of the overall sales for the
I products. The claim for general damages up to November 2002 is therefore
6.4 million euros.’
In para. 43 and Schedule 3 to Mr. C’s Witness Statement this figure is amended to
€4,771,1407
[35] “If it could be shown that the charging of excessive prices by Y depressed
overall sales of products under the agreement X would be entitled to damages
for breach of the obligation not to charge more than Trade Prices and also,
perhaps, for breach of clause 10.1(h). There are a number of ways in which,
in theory, X could have sought to make good such a claim, albeit that it would
probably have entailed expense in terms of expert evidence. But we are quite
.£
unable to conclude that overall sales were depressed to the extent of 8%, or any
other percentage, of X’s gross turnover on the basis of the material which has
been presented to us.
[36] “The witness statement contains no explanation of why or how this con¬
clusion can be drawn from ‘comparative sales performances for the Claimant’s
products in other countries’. There might be any number of reasons why X’s
products sold less well in Italy than in other countries. It is a bare assertion, and
derives no support from the two Reports, dated 19 April 2002 and 13 June 2002,
which the witness exhibits. To the contrary, the former report states in para. 2.4:
‘However it would appear that the terms of the contract were not properly
adhered to since Y decided to apply higher retail prices than those decided
upon by X. We are unable to estimate the effect that this increase in retail
price may have had on sales in terms of volume.’ (emphasis added)
[37] “In . . . its written submissions X requests the Tribunal, if it is not satisfied
that X has established any of its claims, to give X an opportunity either to submit
further evidence on the relevant issue or to elect to adjourn the issue indefinitely
‘along with the other issues which X has chosen not to pursue at this time’. The
Tribunal is not prepared to accede to this request: the Order made by the
Tribunal on 23 May 2005 required X to produce such evidence as it considered
necessary to establish its entitlement to the relief sought, in order that a Final
7. "Para. 43 also identifies a further claim for damages for 'the reduction in revenue by reason of the
lower Trade Prices set by the Claimant on the basis of the erroneous sales information provided
by the Defendant’. This claim has not been pleaded and no evidence has been provided in support
of it.”
Reprinted from the Yearbook Commercial "Arbitration 91

Award could be made and this arbitration brought to a close. The suggestion that
a party who has failed to make good his case should simply be sent away and
invited to have another try is not consistent with the normal way in which both
litigation and, in our experience, arbitration is conducted. We appreciate that X
may, in certain respects, have been placed in difficulty as a result of Y’s insol¬
vency and consequent non-participation in the proceedings, for example because
Y has not made full disclosure of documents. But it was X’s decision to insist on
carrying on with the arbitration following the order of the Bologna Court.
[38] “It follows that X’s claim for compensation by way of damages fails, and
that it is entitled only to nominal damages for Y’s breaches of contract. No
question of interest therefore arises.”
5. Counterclaim
[39] “As stated [at [9]] above, it has been made clear to us that Y has no
intention of pursuing its counterclaim (although it has not been formally with¬
drawn), and no evidence in support of it has been produced. The counterclaim
therefore falls to be dismissed.”
III. COSTS
[40] "We consider that X is entitled to the costs of the arbitration (including
the costs of defending the counterclaim, and the costs of the preliminary issue)
up until February 2005, when it was informed of the order of fallimento made by
the Tribunate of Bologna. On the basis of the breakdown of costs exhibited to
Mr. C’s Witness Statement, and a further breakdown provided subsequently by
solicitors W at the Tribunal’s request, we fix the amount of X’s recoverable legal
costs and expenses at £ 450,000, which is slightly in excess of 70% of the amount
claimed. We make no award of costs so far as the period after February 2005 is
concerned. We reach this decision on the basis that X’s pursuit of its damages
claim since that date has been in substance unsuccessful.
[41] “The ICC Court of Arbitration has fixed the costs of the arbitration (the
arbitrators’ fees and expenses and the ICC administrative expenses) at US$
200,000. So far as those fees and expenses are concerned, we consider that
they should be borne equally by the parties: X was successful on the
Preliminary Issue, but the determination of that issue was a markedly less
time-consuming task than has been the consideration and determination of
the issues covered by the present Award, on which X has been substantially
unsuccessful.
[42] “The parties having each paid an amount of US$ 165,000 pursuant to
Art. 30 of the Rules it follows that US$ 130,000 will be reimbursed to the parties

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in equal shares (ie. US$ 65,000 to each party) upon receipt of their banking
instructions.”
IV. REMAINING ISSUES
[43] “In .. . X’s written submissions the Tribunal is invited, once it has deter¬
mined the issues which are the subject of those submissions and the present
Award, to ‘adjourn the balance of X’s claim indefinitely, with provision for
X to pursue the adjourned issues at some point in the future if necessary’.
Again, the Tribunal is not prepared to accede to this invitation. Arbitration
proceedings governed by ICC Rules are intended to be conducted and brought
to a conclusion with reasonable despatch. It is not consistent with this principle
that claims should be left outstanding indefinitely, to be revived at the unilateral
behest of one of the parties (a consensual stay is different). X’s counsel having
asserted that the Tribunal had no power under the ICC Rules or otherwise to
order a stay of the proceedings, even in the face of insolvency and winding-up
proceedings to which the Insolvency Regulation applies, it comes as something
of a surprise to find that we are now being asked to do precisely that.”
V. AWARD
[44] “We therefore award and determine as follows:
(1) save that we award the sum of €10 byway of nominal damages, X’s claims
for monetary relief (whether in debt, damages or otherwise) are dismissed.
(2) Save for the claim for declaratory relief which was determined in X’s
favour by our Partial Award dated 30 November 2004, X’s other claims
are likewise dismissed.
(3) Y’s counterclaim is dismissed.
(4) Y shall pay to X its legal costs and expenses, which we assess in the sum of
£450,000.
(5) The arbitrators’ fees and expenses and the ICC administrative expenses,
fixed by the ICC Court at US$ 200,000, are to be borne equally by the
parties.”
Reprinted from the Yearbook CommerciaTArbitration 93

;
•' •ÿ . 1
I Award in case no. 13278 of 2005
Parties: Claimants: (i) Corporation (Luxemburg);

(2) Tobacco group (nationality not indicated)
Respondents: (1) Professional motorbike racer
(nationality not indicated)
(2) Limited Partnership (Netherlands)
Place of
arbitration: Paris, France.
Subject matters: - contractual penalty for termination of contract

- damages for wrongful termination of contract
- dolo (Spanish law)
Facts
On 12 October N-l,1 the second claimant (Claimant 2) entered into a Memo¬

randum of Understanding (MOU) with the first respondent (Mr. Respondent
1), a professional motorbike racer. The MOU provided that Claimant 2 would
sponsor Mr. Respondent 1 and that Mr. Respondent 1 would ride for two con¬
secutive seasons (N and N+l) in a motorbike Championship for the X Racing
Factory Team (the X Factory Team). Under the MOU, if Claimant 2 wished to
terminate the relationship after the first season, it would have to pay Mr.
Respondent 1 his salary for the second season; conversely, Mr. Respondent 1
would have to pay the same amount as penalty if he was the party seeking to
terminate the relationship. The parties agreed to conclude a final contract con¬
taining all MOU stipulations before 15 November N-l.
Consequently, on 1 November N-l, the first claimant (Claimant 1), a corpo¬
ration related to Claimant 2 and engaged in the business of managing promo¬
tional and sponsorship activities, acting in its own name and in the name and on
behalf of Claimant 2, entered into an agreement with limited partnership
Respondent 2, Mr. Respondent l’s agent, acting in its own name and on behalf
of Mr. Respondent 1 (the Agreement).
1. Note General Editor. The years and racing seasons in this award have been deleted to protect the
parties’ privacy; they are indicated as "N”, “N-l”, “N+l” and "N+2”.

The Preamble of the Agreement stated that Respondent 2 was the owner of all
rights required for the sponsoring and hiring of Mr. Respondent 1 and was
therefore allowed to enter into the Agreement. Further,
- the First Clause provided that Mr. Respondent 1 would ride a X factory
motorbike for the Y-X Team - X’s "satellite” team,2 rather than the official
X Team as indicated in the MOU - under the management of Z, the company
operating and managing the Y-X Team;
- the Third Clause provided that Respondent 2 would receive from Claimant 2
a retainer fee, plus variable sums depending on Mr. Respondent Ts placement
in the Championship;
- the Fifth Clause provided that the Agreement was entered into for the entire
N season and that the advertising and image rights were granted until 31
December N;
- the Sixth Clause provided that the contract would be “renewed automatically,
mutatis mutandis, for the N+l Season, in order to allow Claimant 2 to inte¬
grate the rider into the team or eventually into another prestigious team”. It
further specified the variable sums that Claimant 2 would pay to Respondent
2 for the N+l Season in addition to the retainer fee, depending on Mr.
Respondent Ts placement in the Championship in the N season. If Mr.
Respondent 1 were to finish below the fifth place, only the original retainer
fee would be owed. The last part of this clause reproduced the mechanism of
the penalties for termination in the MOU and provided that Respondent 2
granted Claimant 2 the pre-emption right to have the services of Mr.
Respondent 1 for the N+2 season;
- the Tenth Clause provided that Mr. Respondent 1 would be liable to both
Claimant 2 and the Y-X Team for any direct damages and prejudice due to his
non-fulfilment or incomplete fulfilment or fault with respect to the Agree¬
ment;
- the Thirteenth Clause provided that Mr. Respondent 1 was to have equal
status with any other team rider until such time as it became mathematically
impossible for him to finish the Championship at minimum fifth place. In
particular, Claimant 2 undertook to provide Mr. Respondent 1 with equal
equipment and support to that supplied to other team riders and to provide
Mr. Respondent 1 with motorbikes built and maintained to no less a standard
than the motorbikes made available to the other team riders. If the Y-X Team
2. Note General Editor. As explained later in the award, manufacturers are allowed to have only one
official team, comprising two riders, in the Championship. Satellite teams use bikes similar to the
one used by the official team but the set-up is made by different technicians.

could provide new developments to one team rider only, then such develop¬
ments should be for Mr. Respondent l’s benefit;
i - Fourteenth Clause provided that any party could notify the other party of
the
a contractual breach; if the breach was not remedied within fifteen days, the
party in breach was to pay the other party a specified amount as penalty;
- the Sixteenth Clause stipulated that the Agreement cancelled and superseded
all previous agreements entered into between the parties;
- the Seventeenth Clause provided that the Agreement was subject to Spanish
law and that disputes should be referred to ICC arbitration.
Three related contracts were also concluded. First, on 1 December N-l,
Claimant 2 and X entered into a Main Sponsorship Agreement, whereby X
was to organize and manage the X Factory Team, consisting of Mr. H and
Mr. M as riders, in the N and N+l Championship, with main sponsorship
4 from Claimant 2. Under the Main Sponsorship Agreement, X also agreed to
lease four factory bikes to the Y-X Team pursuant to a lease agreement to be
entered into between X and Z.
Second, on 9 January N, X and Z entered into a Lease Agreement as provided
for in the Main Sponsorship Agreement. The Lease Agreement provided that
nothing required X to provide Z with engineering support by X mechanics or
engineers. Rather, Z was to hire at its own expense and responsibility a number
of engineers, in consultation with X. Exhibit B to the Lease Agreement was a
confirmation letter signed by Mr. Respondent 1, according to which Mr.
Respondent 1 was to fulfil any obligation of Z under the Lease Agreement
referring directly or indirectly to himself; Mr. Respondent 1 further confirmed
in the letter his understanding and agreement that he had no contractual rela¬
tionship with X.
Third, on 15 March N, Claimant 1 and Z entered into a Sponsorship
Agreement in order to allow the participation of the Y-X Team in the
Championship with Mr. Respondent 1 and Mr. J as riders.
The N season of the Championship started in March N, with Mr. Respondent
1 and Mr. J as riders for the satellite Y-X Team and Mr. FI and Mr. M as riders for
the official X Team. On 12 August N, a Y-X Team manager and Mr. Respondent
1 exchanged some correspondence as to the disappointing results for the first
half of the season. On 5 October N, the parties held a meeting in Japan, on the
occasion f a Championship race, to discuss the situation. On 8 October N, two
press articles were released, according to which Mr. A, a rider with the compe¬
titor W Team, was rumoured to join X for the N+l season and replace
Mr. Respondent 1, who would then join the W Team. During the month of
October N, several press articles were released, in which Mr. Respondent 1 was
!
quoted to have said that he would be happy to leave Y-X for W and that he had
discussed his wish with Y-X, but that he could not leave his team because of the
high contractual penalty for early termination. On 2 November N, the parties
met in Spain. On the same day, Mr. Respondent 1 entered into an agreement
with the W Team for the N+l season.
On 24 November N, Mr. G, the Sponsoring Director of Claimant 2, and Mr.
Respondent 1 held a telephone conversation. On 28 November N, Mr.
Respondent 1 and Respondent 2 (collectively, Respondents) sent Claimant 1
a letter attesting the rescission of the Agreement “by joint consent”. In
November N, Mr. Respondent 1 ended the N season of the Championship
for the Y-X Team below the fifth place.
In a letter of 28 November N, Claimant 1 claimed that there never had been
any intention on the part of Claimant 1, Claimant 2 or the Y-X Team to end their
collaboration with Respondents, objected to what it deemed the unilateral ter¬
mination of the Agreement and sought payment of the contractual penalty for
premature termination. Claimant 1 also claimed damages, arguing that
Respondents’ timing of their announcement had prevented the Y-X TEAM,
Claimant 1 and Claimant 2 from putting together a world-class team of riders
for the N+l season. Though Mr. A did take Mr. Resp 1’s place in the Y-X Team,
second rider Mr. J was also leaving and had to be replaced by a rider with a lower
level of competitiveness, because by the end of November the best riders were
no longer on the market.
On 6 May N+l, Claimant 1 and Claimant 2 (collectively, Claimant) filed a
Request for Arbitration with the ICC International Court of Arbitration against
Respondents.
By the present award, the sole arbitrator found in favor of Claimant, directing
Respondent 2 and Mr. Respondent 1 jointly and severally to pay the contractual
penalty for termination and interest thereon. She denied Claimant’s request for
damages in addition to the contractual penalty.
The arbitrator first concluded from the Agreement - which she interpreted
under Spanish law principles of contract interpretation - and from the related
contracts that the parties’ intention was for a two-season contract. Hence, Mr.
Respondent 1 prematurely terminated the Agreement at the end of the N season.
The sole arbitrator dismissed the Respondents’ contention that the penalty
clause was inapplicable pursuant to the Spanish Supreme Court’s finding that
penalty clauses are inapplicable if there is a change “in circumstances related to
the basic assumptions considered by the promisor when he entered the clause”.
The Respondents argued that there had been a change in circumstances in
the present case because (1) Mr. Respondent 1 accepted to ride for the Y-X
Team on the assumption that there would be no material difference between
the satellite and the original team, which allegedly proved not to be the case;

■s-.-áávJKKr '-r
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(2) X unexpectedly failed to provide technical developments and upgrades dur¬
ing the N season; (3) Mr. Respondent 1 did not expect that the X motorbike
would have significant stability problems, resulting in an unusually high number
of accidents and (4) he did not expect the Y-X Team to hire Mr. A, a successful
rider, which would result in Mr. Respondent 1 being relegated to second rider
and second preference of the sponsors.
The sole arbitrator disagreed, holding that (1) it appeared from the record that
the X motorbikes leased to the Y-X Team were identical to those used in the X
Factory Team and that the terms of the Lease Agreement, which Mr.
Respondent 1 expressly accepted, had been complied with; (2) there was no
basic assumption under the relevant contracts that Mr. Respondent 1 would
get upgrades and improvements; (3) the facts were ambiguous as to the reason
for Mr. Respondent l’s falls during the N season and Mr. Respondent 1 himself
said at the hearing that his falls during the N season may have been linked to an
accident he suffered during the first race of the season, for which however he
gave no specific reason; finally, (4) there was no basic assumption when Mr.
Respondent 1 entered into the Agreement that the X or Y-X Teams would
refrain from hiring new (top) riders for the N+l season.
The arbitrator also dismissed the Respondents’ argument that if a penalty was
granted, it should be reduced, as provided for in the Spanish Civil Code in cases
where the obligation has been partly or irregularly performed. Here, reasoned
the arbitrator, there was no partial or irregular performance bur rather a total
lack of performance.
The sole arbitrator then denied Claimant’s request for damages in addition to
the contractual penalty for termination. She first dismissed Claimant’s conten¬
tion that the parties expressly provided for damages in the Agreement, holding
that on the contrary the penalty clause was intended to deal fully with all the
financial consequences of the termination of the Agreement for the N+l season.
Nor were damages owed because Mr. Respondent 1 acted with dolo, “a con¬
cept under Spanish law roughly equivalent to bad faith” that comprises the
elements of voluntariedad (wilfulness) and conciencia (consciousness) to cause
damage. Claimant argued that Mr. Respondent 1 consciously and deliberately
failed to perform under his contractual obligations, as he continued giving assur¬
ances that he would ride for X in the N+l season, while being aware that he
would not, and waited until late November to communicate his decision, there¬
by putting Claimant in a position that prevented it from procuring the services
of another top rider.
The sole arbitrator considered that the element of conciencia was missing in the
present case, as in the circumstances Mr. Respondent 1 could believe that Mr. A
would replace him and that therefore his leaving the Y-X Team would not cause
any damage to Claimant. Though it appeared that the structure contemplated by

Claimant for the N+l season (taking into account Mr. A’s arrival and Mr. J’s
departure) was Mr. A and Mr. H riding for the X Factory Team and Mr.
Respondent 1 and Mr. M riding for the Y-X Team, there was no element on
record showing that Mr. Respondent 1 had been informed of this plan.
In the last part of the award, the sole arbitrator granted interest at the average
Spanish legal rate for the years N, N+l and N+2 and ordered that Claimant bear
30% and Respondents 70% of the costs of the arbitration. She also granted
Claimant’s request that the award be declared immediately enforceable (exécu¬
tion provisoire).
Excerpt
[1] “The issues that arise for the Sole Arbitrator’s determination in this Award
are in substance the following: (1) the Sole Arbitrator will first examine whether
Claimant is entitled to the payment of the penalty claimed in light of the ter¬
mination of the Agreement at the end of the season ... ; (2) second, the Sole
Arbitrator will determine whether the penalty clause is inapplicable on grounds
of change of circumstances and whether the penalty can be reduced ; (3) ...
finally, the Sole Arbitrator will address the issue whether Claimant is entitled
to the payment of damages claimed in addition to the penalty and in what
amount.
(....)
[2] “The parties have not disputed the jurisdiction of the Sole Arbitrator,
which is derived from the arbitration clause contained in the Seventeenth
Clause of the Agreement [footnote omitted].3 The Seventeenth Clause of the
Agreement further provides for the law governing the merits of this dispute:
‘The present contract shall be subject to the laws of Spain. ...
I. TERMINATION OF AGREEMENT
[3] “Claimant has argued that Mr. Respondent 1 unilaterally terminated the
Agreement at the end of November N in violation of Mr. Respondent l’s
3. “The Seventeenth Clause of the Agreement reads as follows:

'. . . . Any controversy or dispute between the parties arising out of or relating to this agreement,
or a breach thereof, which cannot be resolved by mutual agreement, shall be settled by binding
arbitration conducted by triple arbitrator in accordance with the rules of the International Cham¬
ber of Commerce, in English language, in the venue of Paris, by one or more arbitrators, who shall
be fluent in English and will be appointed in accordance with such Rules of Arbitration.’”

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two-year term established in the Agreement. Thus, in accordance with the terms
t of the penalty clause contained in the Sixth Clause of the Agreement,
t Respondents are to pay a retainer fee of (Amount 6).
i [4] "Thus, the first question that arises for the Sole Arbitrator’s determination
is whether Mr. Respondent 1 wrongfully terminated the Agreement at the end of
the N season, which implies determining the term of the Agreement.
!
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[5] "It is Claimant’s submission that the intention of the parties with respect to
a two-year commitment was always clear whether at the time of the signing of
the MOU or at the time of signature of the Agreement. In fact, the parties
entered into the Agreement at the end of the N-l season, amid great expectations
and with every intention of using all means available to support Mr. Respondent
1 in his efforts to be a champion rider in the Championship. All the participants
involved - X, Claimant 2, Claimant 1, Z and Mr. Respondent 1 clearly -
demonstrated their intent to launch a project that could win them the
Championship, even if it took them two years.
[6] “Conversely, Respondents have argued that the Agreement contained a
provision for an automatic renewal for a second season but not a stipulation that
required the parties to extend the contract for a second season (prórroga forzosa).
[7] “In light of the parties’ disagreement as to the term of the Agreement, the
Sole Arbitrator will proceed to the interpretation of the contractual provisions at
stake under the applicable law.”
1. Principles of Contract Interpretation Under Spanish Law
[8] “Art. 1281 et seq. of the Spanish Civil Code provide for the general prin¬
ciples of contractual interpretation under Spanish law. In particular, Arts. 1281,
1282 and 1285 of the Spanish Civil Code read as follows:4
'Artículo 1281
Si los términos de un contrato son claros y no dejan duda sobre la intención
de los contratantes, se estará al sentido literal de sus cláusulas.
Si las palabras parecieren contrarias a la intendón evidente de los contra¬
tantes, prevalecerá ésta sobre aquéllas.
4. "... ; the Sole Arbitrator will quote in Spanish from documents submitted in Spanish in light of
Art. 11 of the Terms of Reference dated 20 September N+l which reads as follows:
'As provided in Seventeenth Clause of the Contract, the language of this arbitration shall be
English.
The Parties may nevertheless submit documents, including legal authorities, and present wit¬
nesses in Spanish or French without translation.’"
Reprinted from the Yearbook Commercial'Arbitration 101

Artículo 1282
Para juzgar de la intención de los contratantes, deberá atenderse principal¬
mente a los actos de éstos, coetáneos y posteriores al contrato.
Artículo 1285
Las cláusulas de los contratos deberán interpretarse las unas por las otras,
atribuyendo a las dudosas el sentido que resulte del conjunto de todas.'
Under Spanish law, the principles of contractual interpretation may thus be
summarized in the following terms:
‘ ... la interpretación de los contratos y demás actos jurídicos, aunque haya

departir de la expresión contenida en las palabras pronunciadas o escritas, no
puede detenerse en el sentido riguroso o gramatical de las mismas y ha de
indagar fundamentalmente la intención de las partes y el espíritu y finalidad
que han presidido el negocio, infiriéndose de las circunstancias concurrentes y
de la total conducta de los interesados
[9] “Respondents have argued that the articles of the Spanish Civil Code referred
to above applied to the construction of contractual terms in general but did not
govern the interpretation of penalty clauses pursuant to the Spanish Supreme
Court. According to Respondents, the Spanish Supreme Court has developed
principles of contract interpretation, which apply specifically to the construction
of penalty clauses, one of which is that in case of doubt whether a penalty clause has
been agreed upon or not, or whether such clause is enforceable or not, the court
must rule that the clause was not agreed upon or is not enforceable. Accordingly,
each and every submission of Claimant suggesting the application of general prin¬
ciples of contract interpretation should be dismissed.
[10] “Upon examining the case law referred to by Respondents in connection
with the interpretation of penalty clauses . . . the Sole Arbitrator fails to follow
Respondents’ argument that Art. 1281 et seq. do not apply to the interpretation
of penalty clauses. As a matter of fact, the violation of such legal provisions often
constitutes grounds for appeal before the Spanish Supreme Court against deci¬
sions of the lower instances regarding penalty clauses in the cases referred to by
Respondents. The Spanish Supreme Court held that penalty clauses are to be
interpreted restrictively where there exists difficulties or doubts as to their exis¬
tence or scope. Put differently:
. Siendo de recordar que la cláusula penal ... es un pacto acesorio cuya

finalidad es la de asegurar el cumplimiento de la obligación convenida,
5. “See Decision of the Spanish Supreme Court, 31 December 2002 (RJ 2003/247) . ..

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sustituyendo en la previsión de las partes a la indemnización de daños y

perjuicios si se produce el incumplimiento, constituyendo una excepción al
régimen normal de las obligaciones, por lo que las dudas respecto de su
existencia y alcance han de ser interpretadas con carácter restrictivo ... lo
que impide aplicarla a supuestos distintos de los previstos por las partes . . . ,’6
[11] “In light of the above, Respondents’ argument is ill-founded. The Sole
Arbitrator will thus interpret the Agreement in accordance with Art. 1281 et seq.
of the Spanish Civil Code, bearing in mind that to the extent there is a doubt as to
the existence or scope of the penalty clause contained in the Sixth Clause of the
Agreement, such clause is to be interpreted restrictively.”
2. Duration of Agreement
[12] “The Sole Arbitrator will first examine the wording of the contractual ■
clauses regarding the term of the Agreement.

[13] “Claimant has argued in this respect that the Agreement clearly shows a
two-year commitment with a one-year right to renew. In particular, the year
N+2 is expressly mentioned in the final paragraph of the Sixth Clause and would
have little meaning in a contract that could not be renewed for the year N+l.
The mention of *mutatis mutandis’ in the Sixth Clause, together with the phrase
‘in order to allow Claimant 2 to integrate the RIDER into the TEAM or, even¬
tually into another prestigious team’, explains why the Fifth Clause makes the
Agreement ‘effective . .. until the end of the last race of the season’: this was to
gain flexibility in the event that Mr. Respondent 1 was committed through the
end of the N+l season. Further, the very existence of a penalty clause negates
the theory that renewal was ‘optional’. In addition, the wording of the clause
itself makes clear that the commitment for N+l was part of the contractual
terms in Claimant’s yiew. Moreover, Claimant argued that the Agreement con¬
spicuously failed to provide any deadline for notifying a party’s intent not to
renew. If the Agreement had really- treated renewal as an ‘option’, it would have
provided for a deadline prior to the conclusion of its initial term, by which a
party should notify the other of its intent not to renew. Such a clause is not
needed, however, when a penalty clause evidences that the choice is between
fulfilling the commitment for both seasons, or paying a penalty for not honour¬
ing the N+l commitment.
[14] "On the other hand, Respondents have in substance submitted that it is
difficult to accept that the parties opted for indirect, strange and confusing
6. "See Decision of the Spanish Supreme Court, 10 November 1983 . . . and decision of the Spanish
Supreme Court, 6 May 1998
Reprinted from the Yearbook Commercial 'Arbitration 103

language to achieve something as simple as ‘this contract is entered into for a

term of two seasons’. Accordingly, a contract for two seasons does not appear to
be the right interpretation.
[15] “Turning now to the contractual clauses at issue, the Fifth Clause of the
Agreement provides:
‘FIFTH. This Contract shall become effective on the date first above writ¬
ten and shall be effective for the entire N season, until the end of the last race
of the season (the ‘Term’). Nevertheless, Respondent 2 acknowledges and
accepts that all the advertising and image rights are granted and the consent
of the RIDER has been given in order to allow Claimant 2 to exploit the
image of the riders and/or the TEAM, for commercial, publicity and com-
municational purposes, up to 31 December N.’ (emphasis added) [footnote
omitted]
[16] “The relevant parts of the Sixth Clause of the Agreement further provide:
‘SIXTH. The present Contract will be renewed automatically, ‘mutatis

mutandis’, for the N+l Season, in order to allow Claimant 2 to integrate
the RIDER into the TEAM or, eventually into another prestigious team. . . .
If this contract is terminated for the season N+l by one of the Parties,
the terminating party, unless in the case of fault of the other Party, will have
to fulfil its financial obligations. Claimant 2 will be obliged to pay to the
RIDER the retainer fee and, on the opposite, the RIDER will be obliged to
pay this same amount to Claimant 2 as penalty, in case of breach of the
Contract.
Respondent 2 hereby grants Claimant 2 the pre-emption right to have
the services of the RIDER for the Championship . . . for the motorcycling
season of N+2. To enable the exercise by Claimant 2 of the rights hereby
granted Respondent 2 will present to Claimant 2 a complete project for the
N+2 season together with economical obligations therein contained for the
Main Sponsor (the project).’ (emphasis added) [footnote omitted]
[17] “Upon examining the wording of these clauses in connection with one
another, the Sole Arbitrator holds the view that the Agreement was entered into
for a period of one year - the N season pursuant to the Fifth Clause of the
Agreement - it being specified that it would be automatically renewed mutatis
mutandis for another year - the N+l season pursuant to the Sixth Clause of the
Agreement - thus totalling a number of two seasons. The Agreement further
provides that in the event that one of the parties decided to terminate for the
season, it was to pay the amount of the retainer fee as penalty.

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[18] “In other words, the Agreement on its face contemplated two seasons,
t leaving, however, the possibility to terminate the Agreement for the N+l
season, provided the terminating party complied with its financial obligations,
Furthermore, the fact that a pre-emption right on Mr. Respondent 1 services was
r considered for the N+2 season at the end of the Sixth Clause makes little sense if
the Agreement were not automatically renewed for the N+l season. This literal
i interpretation of the Agreement is further consistent with the entire contractual
framework between the parties.
e [19] “First, with reference to Art. 1285 of the Spanish Civil Code, the Sole
Arbitrator notes that the other contractual provisions also foster an interpreta¬
tion in favour of two seasons. In particular, the Eighth and Ninth Clauses of the
I Agreement read in junction with one another appear to refer to a possible
renewal for the N+2 season, which would make no sense if there were no
renewal of the Agreement for N+l.
[20] “Further, the First Clause of the Agreement, which refers to Mr.
Respondent l’s integration in the Y-X Team for the N season only, appears
rational if read in connection with the first paragraph of the Sixth Clause
providing for the automatic renewal of the Agreement for N+l with the Y-X
Team or the possibility for Respondent 2 to integrate Mr. Respondent 1 into
another prestigious team for the N+l season. As Mr. G, who participated in the
negotiation and drafting of the Sixth Clause of the Agreement, explained at the
Hearing on 9 March N+2, the latter possibility was inserted as the sponsor’s
guarantee to integrate Mr. Respondent 1 into a team other than the Y-X team for
the N+l season.
[21] “As a matter of fact, such insertion of a guarantee to be integrated into
another prestigious team for the N+l season possibly addressed Mr.
Respondent l’s concern at the time as explained at the Hearing on 21 March
N+2 with respect to the evolution within the Y-X Team as opposed to the X
Factory Team, which he was to integrate at first pursuant to the parties’
negotiation ....
[22] “Thus, the purpose of the Agreement was in any event to retain Mr.
Respondent l’s services for N+l.
[23] “This is further consistent with the negotiations between the parties prior
to signing the Agreement. In particular, the MOU, which was signed a month
before the Agreement, expressly stipulated a period of two seasons, i.e., N and
N+l.
[24] “Claimant has argued with respect to the MOU that it should be read
together with the Agreement to interpret the parties’ intention. In particular,
Claimant pointed out that Recital 6 to the Agreement stipulated that ‘The
RIDER and Claimant 2 have subscribed a “Memorandum of Understanding”
for sponsoring on 12 October N to be completed by means of a Final Contract.’

Since an agreement that is ‘cancelled’ can hardly be ‘completed’, and since the
Sixteenth Clause is a general boilerplate provision and Recital 6 referred to
concrete elements specific to the Agreement, Recital 6 should take precedence
over the Sixteenth Clause to the extent that the two conflict.
[25] “Conversely, Respondents have argued that the Agreement differed from
the MOU in several contractual provisions relevant to the dispute, especially the
provision on the contractual term initially agreed for two seasons in the MOU
but shortened to one season in the Agreement. The Agreement cancelled and
superseded the MOU. Hence, according to Respondents, the MOU may be used
to explain statements made by the parties but should not be used to establish the
obligations of the parties.
[26] "Upon examining the record, it is undisputed that the MOU was can¬
celled and replaced by the Agreement pursuant to the Sixteenth Clause of the
Agreement nor is it disputed that the MOU may be instrumental in interpreting
the parties’ intention. The Sixteenth Clause of the Agreement reads as follows:
‘SIXTEENTH. The present Contract cancels and supersedes all previous agree¬
ments signed between the Parties.’ The parties disagree, however, on the defi¬
nition of their obligations under the Agreement in light of the MOU.
[27] “The relevant parts of the MOU regarding the period of time during
which Mr. Respondent 1 was to provide his services read as follows:
‘Claimant 2 . . . and the rider Mr. Respondent 1 hereby confirm their agree¬
ment that Claimant 2 will sponsor such rider, who will provide his services
to the X Racing Factory Team, as rider of an official X Motorcycle in the
Championship during the N and N+l seasons. It is agreed that the rider
should be provided with the same material in quantity and time compared
to other X official riders.
Renewal:
The contract will remain in force for a period of 2 seasons (N and N+l),
with the following conditions for N+l ... .
In case of interruption of the contract at the end of N Season by one of the
parties, the breaking party will have to fulfill its financial obligations.
Meaning that Claimant 2 will have to fulfill its N+l obligations by paying
to the rider the N+l agreed fixed salary. And the rider will have to pay this
same amount to Claimant 2 as a penalty if he breaks this contract.
This document constitutes a Memorandum of Understanding. The

parties agree to draw up and subscribe the Final Contract that will contain
each and every stipulation from the present Framework Agreement, within
a period ending 15 November N-l . . . .’

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K CASE NO. 13278, 2005 ARBITRAL AWARDS
&
7 [28] “Whereas Claimant has submitted that the intention with respect to a
two-year commitment was clear since the very inception of the negotiation,
'
Respondents have denied Claimant’s interpretation of the Agreement as a

two-season contract on the basis of the MOU.
[29] “In the Sole Arbitrator’s opinion, there is no inconsistency between the
terms of the MOU and those of the Agreement establishing Mr. Respondent l’s
obligation to provide his services for N and N+l as mentioned above. Both
contracts envisioned a cooperation for two seasons - interestingly enough under
the heading ‘Renewal’ in the MOU - and stipulated a penalty in case one of the
parties put an end to their relationship at the end of N.
[30] “Second, taking further into consideration all surrounding circumstances,
any doubts as to the two-year term of the Agreement are dispelled. Specifically,
Claimant has argued that all agreements ancillary to the Agreement, including
the Main Sponsorship Agreement, the Sponsorship Agreement and the Lease
V Agreement were valid for both the N and N+l seasons.
[31] “Respondents have denied Claimant’s interpretation relying on agree¬
ments ancillary to the Agreement, as contracts entered into between one of
■:! the parties and a third party are irrelevant to construe a contractual clause
between Claimant and Respondents.
[32] “The Preamble of the Agreement provides inter alia:
‘2. Claimant 2 and Z have reached a sponsorship pre-agreement concerning

i the Championship in the N ... and N+l seasons ... for the racing team
called Y-X (hereinafter referred also as “the TEAM”).
3. Claimant 2 has committed itself with Z to contribute to the TEAM, by
:ÿ
various means, among which hiring and paying the services of the
professional racing rider Mr. Respondent 1 (hereinafter, “the RIDER”
who shall integrate the TEAM, the TEAM having already confirmed its
interest in such RIDER.’
[33] “Thus, the Agreement explicitly refers to an ancillary agreement, the

Sponsorship Agreement, for the purpose of enabling Mr. Respondent 1 to ride
for the Y-X Team in the Championship ... .Asa matter of fact, other agreements
proved necessary for the implementation of this project, namely the Main
Sponsorship Agreement, whereby Claimant 2 and X agreed that Claimant 2
would as main sponsor contribute a certain amount to the Y-X Team under
the Sponsorship Agreement, and the Lease Agreement, whereby X was to lease
race motorbikes to the Y-X Team for use in the Championship .... In particular,
Art. 3 of the Sponsorship Agreement . . . , Art. 13 of the Main Sponsorship
Agreement ... and Arts. 1.1(q) and 12 of the Lease Agreement . .. equally stip¬
ulated a two-year term, i.e. including the N and N+l seasons. Art. 5 of the
! Reprinted from the Yearbook Commercial Arbitration 107

Sponsorship Agreement further provided that Mr. Respondent 1 would be one of

the riders for the Y-X Team in N+l ....
[34] “Accordingly, the contractual nexus referred to above contemplated a
two-year cooperation. The contracts referred to above, even though entered
into with or between third parties to this arbitration, were in fact required to
implement the object of the Agreement and thus materialize Mr. Respondent l’s
riding for the Y-X Team. As a result, the Sole Arbitrator does not consider such
contracts as irrelevant in interpreting the Agreement. To the contrary, such
contracts, which were contemporaneous with the signature of the Agreement,
point to the parties’ intention of sponsoring Mr. Respondent 1 as rider in the
Championship for both the N and for the N+l seasons.
[35] “On the other hand, the Sole Arbitrator does not deem the fact that Mr.
Respondent 1 was seeking a three-year contract with [another team, T] prior to
signing the Agreement as relevant. Claimant has submitted that, in October N-l
when the MOU was signed, Mr. Respondent 1 was seeking a three-year spon¬
sorship commitment and reportedly had a three-year offer from T. For Claimant
this leads to infer that Mr. Respondent 1 was unlikely to settle for a contract with
Claimant 2 for one year only.
[36] “According to Respondents, such reasoning is hard to follow, considering
that the length of any contractual commitment depends on the conditions and
terms offered by each team. Any contract is attractive to a rider if it may allow
him to become a world champion. Therefore, offers are not comparable. As
Respondents pointed out, Mr. Respondent 1 as a professional Championship
rider sets the terms and conditions of his commitment depending on the team
making the offer.
[37] "In the Sole Arbitrator’s opinion, one cannot reasonably compare T’s
offer with X’s offer to determine the parties’ intention with respect to the dura¬
tion of Mr. Respondent 1’s commitment to ride for X, whether for the X Factory
Team as stipulated in the MOU or the Y-X Team as subsequently stipulated in
the Agreement.
[38] “Moreover, the Sole Arbitrator is of the view that a two-season commit¬
ment may also be inferred from the press releases issued towards the end of the
N season ... in which Mr. Respondent 1 was reported to have declared inter alia
that [he did not wish to leave X for W since he signed on for another year with X
and there would be a penalty to pay if he were to leave earlier] and [did not deny
that he had a pre-agreement with the W Team but needed Claimant 2 to cancel
the penalty]. Even though statements made in the press must be viewed with
caution as they are not always reliable, they are of some interest here as they
give an indication that Mr. Respondent 1 was bound under the Agreement for
the N+l season unless payment of the penalty was effected, which points to the
same conclusion as the other more reliable elements of the record.

P'
i
\
[39] "Finally, the correspondence exchanged subsequently between the
parties acknowledges the commitment for the N+l season .... As a matter
I+ of fact, the parties primarily debated the characterization and financial conse¬
quences of the termination at the end of N in such correspondence. The parties
did not dispute, however, the fact that they were bound for N+l as well.
[40] “Consequently, the record shows that the parties’ intention was for a
two-season contract. The difference in drafting between the pre-contractual
document, the MOU, and the Agreement itself, as alleged by Respondents,
might be due to the wish of the parties to strike a balance and accommodate
Mr. Respondent l’s concern with respect to the Y-X Team mentioned earlier.
[41] “Be it as it may, the mere insertion of a penalty clause corroborates the
interpretation of the Agreement as a two-season commitment. As the parties
contemplated a two-year project, the penalty clause acted as a deterrent to end
-V,
their relationship unreservedly at the end of N. The main function of a penalty
r ■
clause under Spanish law is precisely to guarantee the fulfilment of the obliga¬
tion secured by the penalty [footnote omitted] i.e. the parties’ commitment for
the N+l season in the present case.”
3. Conclusion
[42] “Therefore, in light of the foregoing considerations, the Sole Arbitrator

finds that there is no doubt as to the existence or scope of the Sixth Clause of the
Agreement. Accordingly, there is no ground for restrictive interpretation and
Respondents are to pay to Claimant as a result of the termination of the
Agreement at the end of N the amount owed as penalty.”
II. CONTRACTUAL PENALTY FOR TERMINATION
[43] “The Third and Sixth Clauses of the Agreement pertaining to the amount
of the penalty read as follows:
‘THIRD.- As consideration for the services rendered by the RIDER, as

described in this Contract, Respondent 2 will receive from Claimant 2 the
following amounts:
(a) Amount 6 as retainer fee.
SIXTH .... If the RIDER has come in first place in the N Season World
Championship Finals, the retainer fee awarded for the N+l Season will be
Amount 1. If the RIDER was to come in second place, the retainer fee
r awarded would be Amount 2. If the RIDER was to come in third place,
the retainer fee awarded would be Amount 3. If the RIDER was to come in
:

fourth place, the retainer fee awarded would be Amount 4. If the RIDER
was to come in fifth place, the retainer fee awarded would be Amount 5. .. .
In the case the RIDER finishes the N Season within the Final Qualifica¬
tion in any place other than first to fifth, the retainer fee will remain
unchanged.
If this contract is terminated for the season N+l by one of the Parties, the
terminating party, unless in the case of fault of the other Party, will have to
fulfil its financial obligations. Claimant 2 will be obliged to pay to the
RIDER the retainer fee and, on the opposite, the RIDER will be obliged
to pay this same amount to Claimant 2 as penalty, in case of breach of the
Contract.’ (emphasis added) [footnote omitted]
[44] “It is undisputed that Mr. Respondent 1 finished the N season below the
fifth place [footnote omitted]. As a result, the amount of the retainer fee stip¬
ulated in the Third Clause of the Agreement remains unaltered. Thus,
Respondents are to pay to Claimant Amount 6 as penalty, no fault of
Claimant being claimed in this arbitration.”
1. Award to Be Issued Against Both Respondents
[45] “Having said that, the question arose during the Hearing as to the basis
upon which Claimant 1 acted and requested relief in this arbitration in its own
name and on behalf of Claimant 2 and as to the powers given by Mr. Respondent
1 to Respondent 2 in connection with the Agreement ....
[46] “In this respect, Claimant submitted in substance that in light of the
documents on record, the pre-hearing submissions, and prior pleadings, the
award should be issued against Respondent 2 and Mr. Respondent 1 who are
jointly and severally liable to Claimant 1 and Claimant 2. Claimant pointed out
that Respondent 2 and Mr. Respondent 1 would be satisfying the award by
paying either Claimant 1 or Claimant 2 ....
[47] “On the other hand, Respondents argued that the fact that Respondent 2
and/or Mr. Respondent 1 have not objected to being both named as respondents
in this arbitration and have accepted that Claimant 1 and Claimant 2 be clai¬
mants jointly in this arbitration does not mean the penalty clause was agreed
upon between all four entities or persons .... Respondents pointed out that Mr.
Respondent 1 was not a signatory to the Agreement containing the arbitration
clause but knew of the arbitration clause and was instrumental in performing the
obligations undertaken by Respondent 2 under the Agreement. As a result,
Respondents submitted that the Sixth Clause of the Agreement does not clearly
determine the promisor of the penalty clause. Reading the Sixth Clause in con¬
nection with Recital 5 of the Preamble, one may suggest that it refers to

fi
Respondent 2. However, the rules of interpretation on penalty clauses under the
applicable substantive law are strict, in that any ambiguity should result in the
penalty clause being unenforceable.
[48] “The Sole Arbitrator fails to grasp Respondents’ argument, according to
which the penalty clause in the Agreement entered into by Respondent 2 in its
own name and on behalf of Mr. Respondent 1 does not bind both Respondent 2
and Mr. Respondent 1 whilst the arbitration clause contained in the same
Agreement admittedly binds both Respondent 2 and Mr. Respondent 17
[49] “As mentioned earlier, the Agreement was entered into by Respondent 2
in its own name and on behalf of Mr. Respondent 1, it being understood that,
since Respondent 2 is the owner of all rights required for the sponsoring and
hiring of Mr. Respondent 1, it could conclude in its own name and on behalf of
Mr. Respondent 1 all professional, sportive and promotional agreements
contained in the Agreement .... There is no element on record leading to
.1' infer that the contracts entered into between Respondent 2 and Mr.
Respondent 1 whereby Respondent 2 represents Mr. Respondent 1 were not
valid under the applicable law. As a result, the Sole Arbitrator deems both
Respondent 2 and Mr. Respondent 1 validly bound by the Agreement, including
the penalty clause, and thus jointly and severally liable towards Claimant in this
arbitration.
[50] “With respect to Respondents’ argument according to which the penalty
clause is not enforceable if there is an ambiguity, the Sole Arbitrator has held
above that interpretation of the penalty clause must be interpreted restrictively
in case of doubt on its existence or scope. There is no such doubt in the present
arbitration and, hence, the rule requiring a restrictive interpretation does not
apply.
[51] “As to Claimant, there is no doubt on the basis of the record that
Respondents are liable to Claimant 1 and Claimant 2 jointly, Claimant 1 having
entered into the Agreement in its own name and in the name and on behalf of
Claimant 2
2. Change in Circumstances
[52] "Respondents have argued that if the penalty clause applied to the present
case, it would be unenforceable owing to the change of circumstances between
the time when it was signed and the time when the Agreement was terminated.
According to Respondents, the Spanish Civil Code contains no rule pursuant to
which a change in circumstances relating to the basic assumptions when entering
7. “See also Fouchard, Gaillard, Goldman, On International Commercial Arbitration, Kluwer Law
International 1999, no. 498 et seq., p. 280.”
Reprinted Irani the Yearbook Commercial-Arbitration Ill

I
into the penalty clause makes such clause unenforceable. The Spanish Supreme
Court has nevertheless accepted such rule. Accordingly, it applies to all penalty
clauses, irrespective of whether they secure the debtor’s performance through
coercion (fundón coerdtiva ) or liquidate damages (preliquidadón de daños). The
relevant test is the existence of a ‘change in circumstances related to the basic
assumptions considered by the promisor when he entered the clause’, not
material breach, or defective or late performance of the other contracting
party. To succeed with their defence, Respondents argue that they need to
show that there has been a change in circumstances as just described.
Respondents need not prove that Claimant 1, Claimant 2 or 2 caused such
change of circumstances.
[53] “According to Respondents, whichever function the penalty clause
intends to achieve, Spanish law will not require the party against whom a penalty
clause is stipulated to adhere to its promise if circumstances have changed. The
reason is that the promisor (el promitente) of the clause could not have formed
his consent considering basic assumptions (supuestos de base) that were not
known at the time and that were reasonably necessary to decide on the amount
of the penalty owed for nonperformance.
[54] “On the other hand, Claimant has argued that Respondents have errone¬
ously identified a principle of Spanish law whereby relevant changes in circum¬
stances relating to the basic assumptions considered when entering the penalty
clause make penalty clauses unenforceable. Such principle has no place under
Spanish law. On the contrary, the cases cited by Respondents to support their
theory is authority for another proposition, i.e. that a penalty clause is inapplic¬
able where the main contractual obligation, the breach of which triggers that
penalty clause, is altered or rendered impossible. Where the principal obligation
has been altered, the penalty clause will only remain applicable insofar as it is
consistent with the new terms of the main obligation. Where the main obligation
ceases to exist altogether or its breach becomes impossible, the penalty clause will
become inapplicable through obsolescence. Put in simple terms, in order to
render a penalty clause inapplicable, it is necessary to show that there has
been an alteration in the contractual relationship between the parties such that
it essentially varies the basic nature of the obligation the penalty seeks to secure.
According to Claimant, Respondents have failed to grasp such principles and
instead have opted to allege a variety of circumstances, which are wholly unre¬
lated to the obligation, the penalty clause was intended to secure. None of the
alleged ‘changes of circumstances’, even if true, could have materially altered the
parties’ bargain for a two-year commitment.
[55] "In the present case, due to the nature of the mischief that the penalty
clause is intended to deter, i.e. termination at the end of the N season or failure to

I
I
: CASE NO. 13278, 2005 ARBITRAL AWARDS
honour the commitmentfor the N+l season, the obligation cannot be performed
in part only. The ‘supuesto’ or 'premise’ is absolute: there is either performance in
N+l or there is not. Therefore, an ‘essential variation in the premises’ that could
legitimately vitiate the penalty clause in this case would consist in factors making
it extremely difficult or impossible for the parties to perform in N+l. In the
present case, however, Respondents merely allege factors that made it
undesirable or unattractive to Mr. Respondent 1 to continue for the N+l season.
V Respondents’ allegation that the penalty clause is invalidated by a so-called
‘change in circumstances’ must therefore fail according to Claimant.
[56] “The parties agree that the Spanish Supreme Court has developed some
case law on this particular topic. However, they have a different interpretation
of the main case relied upon in their respective arguments, namely the decision
of the Spanish Supreme Court of 16 September 1996 .... In particular, the
■v parties disagree on the test which such case imposes. Respondents are of the
view that the test is a change in circumstances related to the basic assumptions
considered by the promisor when entering into the clause as opposed to material
breach, defective or late performance of the other contracting party. Hence, a
change in circumstances pertaining to the economy of the contract is sufficient
to make the penalty clause unenforceable. By contrast, Claimant is of the opin¬
ion that the penalty clause does not apply only when the principal obligation, the
breach of which triggers the penalty, is altered or rendered impossible. As a
result, it is necessary to show an alteration in the contractual relationship such
that it varies the obligation the penalty seeks to secure making it thus difficult or
impossible to perform.
[57] “Upon examining the decision of the Spanish Supreme Court referred to
above, as well as the case law produced by Respondents in this respect ... the
test may be expressed in the following terms:
‘Puesto que la pena pactada sólo puede aplicarse si una vez establecida sigue
aún en vigor al producirse el incumplimiento que sanciona, y no cuando se
...
han alterado los supuestos en base a los cuales se pactó, pues si dichos
supuestos se alteran, como ocurrió en el caso ahora debatido, la eficacia de tal
cláusula desaparece, y así es de estimar cuando convenida la entrega de
determinadas obras en cierto dia, luego resulta que el volumen de tales
obras se aumentó y cambiaron los precios y hubo además exceso de obra,
que no se demostró inútil, haciendo preciso un tiempo mayor que el estipu¬
lado; todo lo cual hace variar esencialmente los supuestos básicos de la cláu¬
sula penal, cuya aplicación así ya no resulta procedente
[E]n el sentido de que para su exigencia es necesario que subsistan los
mismos supuestos con base en los cuales se pactó, pues si éstos se alteran
Reprinted from the Yearbook Commercial"Arbitration 113

con variaciones trascendentes, la eficacia de la cláusula desaparece,'6

(emphasis added )
[58] “In other words, where the basic assumptions upon which the parties
agreed at the time of the conclusion of the contract are significantly altered,
the penalty clause becomes ineffective. Accordingly, the Sole Arbitrator will
examine whether the circumstances alleged by Respondents constitute basic
assumptions which the parties made when entering into the Agreement and
whether such assumptions have significantly varied.
[59] “The Respondents have put forward several circumstances which alleg¬
edly changed between November N-l and November N. They argued that each
of these circumstances, let alone all of them together, is critical to the decision of
a top Championship rider to agree to stay in a team for a given period of time.”
a. Official and satellite teams
[60] “In particular, Respondents argued that the penalty clause was agreed
upon the assumption that there would be no material difference between the
satellite team (Y-X Team) and the official team (X Factory Team), as Claimant 2
representatives had represented and assured to Mr. Respondent 1. According to
Respondents, Claimant continuously represented that the teams were materially
the same and Mr. Respondent 1 gave credence to this representation. As a result,
he accepted to sign for the Y-X Team instead of the official team, but the parties
reduced the term to one season as a precaution in light of the fact that he would
not ride an official bike.
[61] “Respondents submitted that Claimant wilfully concealed critical
aspects, such as the difference between an 'official team’ and ‘satellite team’.
An 'official team’ is managed and developed directly by the motorbike manu¬
facturing company. Each motorbike manufacturer has only one ‘official team’ in
the Championship category comprising two riders. By contrast, a ‘satellite team’
is formed by a competitive but independent group of managers and technical
experts. It uses a similar but not equal bike to the one of the ‘official team’. In X’s
case, the ‘official team’ for the N season was the X Factory Team. There were
two other satellite teams using X bikes: the Y-X Team and the P Team.
[62] “From a technical standpoint, the motorbike company X directly pre¬
pares and develops the bike for the official team, but only leases and eventually
provides upgrades to the satellite teams. Thus, whilst X organized and managed
the official team and further prepared the bike for that team, it only leased a
8. “See Decision of the Spanish Supreme Court, 16 September 1986 . . . ; see Decision of the Spanish
Supreme Court, 22 January 1980 . . . .”

. i'-'— - -ÿ-ÿ-ÿ-ÿÿÿÿ: ■:

g similar bike to the Y-X Team. Furthermore, the internal structure of the official
and the satellite teams is entirely different. The technical crew are different and
I so are the managers.
[63] “On the other hand, Claimant submitted that there were two separate and
distinct Claimant 2 X teams mainly for marketing reasons. As a practical matter,
however, the teams were virtually the same. They had the same sponsor, the
same bike (a certain type of motorbike from the X factory), the same mechanical
means, and the same technical assistance. According to Claimant, it is disingen¬
uous for Respondents to make ex post facto an issue of the fact that Mr.
f Respondent 1 raced on a team managed by an independent company with a
different internal structure, when Mr. Respondent 1 had stated that the only
thing that mattered to him was to ride a factory bike. Furthermore, and as
additional evidence of X’s direct interest and involvement in the two
Claimant 2/X teams, X undertook direct financial responsibilities vis-à-vis
the riders of the Y-X Team despite the fact that the Y-X Team was principally
I managed by an independent company. As a result and still according to
Claimant, if there were differences in the commercial arrangements between
? the Y-X Team and the X Factory Team, these were not of consequence to
Mr. Respondent 1.
[64] “It is undisputed that like many manufacturers in the Championship, X
has a so-called ‘official team’, the X Factory Team, directly operated by X, and a
so-called ‘satellite team’, the Y-X Team, managed and operated by an
independent third party, Z. It is further undisputed that Claimant 2 sponsored
both the X Factory Team under its B brand and the Y-X Team under its Y brand
pursuant to the Main Sponsorship Agreement and the Sponsorship
Agreement .... The parties have taken different views, however, as to the
support and equipment provided to each team by X, Respondents’ main argu¬
ment being that the agreement was entered into upon the assumption that there
would be no material difference in this respect.
[65] “The thirteenth clause of the Agreement is relevant to this issue. It reads
as follows:
‘THIRTEENTH. For the entire duration of this Contract, Claimant 2 shall

organize and permit the RIDER to participate as official TEAM RIDER to
all the races and tests of the Championship. The RIDER will have not less
than equal status with any other TEAM Rider until such time as it is math¬
ematically impossible for the Rider to finish the World Championship at
minimum at fifth place in the relevant season. Claimant 2 undertakes to the
RIDER that when participating in Races and Tests:
1. The RIDER will receive equal equipment and equal support to that
supplied to any other TEAM Rider; and the Bikes made available to the

Rider at the Races will be built and maintained to no less a standard than the
Bikes made available to the Other TEAM Riders at such Races.
2. For the avoidance of doubt, in the case the TEAM may be only able to
provide new developments to one TEAM Rider then it shall be for the
RIDER.’
Thus, within the Y-X team, Mr. Respondent 1 was to be given preferential
treatment.
[66] “The record shows that the X motorbikes leased under the Lease
Agreement to the Y-X Team were identical to those used in the X Factory
Team. Both teams were supplied with the same standard configuration X
motorbike .... Similarly, X provided technical support to both teams, it
being specified under the Lease Agreement that X was not required to provide
Z with any engineering support or improvement of the motorbike ....
[67] “In accordance with . . . the Lease Agreement, Mr. Respondent 1 accept¬
ed the terms and conditions of the Lease Agreement, agreeing to fulfil any
obligation of Z under the Lease Agreement referring directly or indirectly to
himself and specifying that he had no contractual relationship with X and con¬
cluded an agreement with Z at his own risk and responsibility accordingly ....
[68] “In fact, as explained at the Hearings of 9 March N +2 and 16 March N+2
by the owner of Z and manager of the Y-X Team, Mr. Q, and by the managing
director of X Motor Racing, Mr. L, the motorbikes were identical in both the
‘official’ and ‘satellite’ teams and the technical support from X was the same,
irrespective of whether the staff responsible for the motorbike set-ups were that
of X or Z ... .
[69] “Hence, the support and equipment supplied by X to both teams appears
to have been equal, it being understood that the motorbike set-ups would be
done by each team separately. Mr. Respondent 1 himself confirmed at the
Hearing of 21 March N+2 that both teams received the same motorbike. He
also stated that he knowingly accepted when he signed up for the Y-X Team
under the Agreement that the X engineering evolution, or technical assistance
could vary during the season.
[70] “On such basis, Respondents’ argument according to which the
Agreement was entered into on the basic assumption that there would be no
material difference between the X Factory Team and the Y-X Team, fails. There
is thus no need to examine whether such assumption was significantly altered.”
b. Lack of performance and upgrades
[71] “According to Respondents, Mr. Respondent 1 expected that X’s efforts

would materialize in improvements in the performance and upgrading of the

• ;

motorbike, as Claimant 2 representatives had assured him. He did not expect so
few technical developments and upgrades during the N season.
[72] “Respondents submitted that Mr. Respondent 1 faced a lack of support
by X to solve technical problems. Owing to deficient insulation from the heat in
the exhaust pipe, the rider burned his legs in the bends. Mr. Respondent 1
requested that the exhaust pipe be corrected by improving the insulation, but
X never solved the problem. Mr. Respondent 1 ended up doing it himself with
his mechanics. He thought that a three-position button to control the gasoline
injection system was better than the two-position button used in X. He asked
for a three-position button but to no avail. He had to manufacture and install it
s. himself with the assistance of his mechanics. Respondents alleged that during the
whole season, X only provided Mr. Respondent 1 with one meaningful upgrade:
the head cylinder. In a normal season and team, the rider would have expected
? improvements or upgrades every two to four races, i.e. four to six upgrades
during the season.
[73] “Claimant replied that Respondents’ allegations with respect to the per¬
formance and upgrades of the bike seem trivial at best. The fact that the team’s
own mechanics could easily solve these issues suggests that they were not sig¬
nificant and appear to be standard practice. As mentioned in connection with the
‘official’ and ‘satellite’ teams ... the equipment and support provided by X were
the same for both teams, although the set-ups were done by each team separately
and could vary for each rider, the latter then making his ‘own destiny’ to use Mr.
L’s expression at the Hearing of 9 March N+2.
[74] “Mr. Respondent 1, as a professional and experienced rider in the
Championship, was undoubtedly aware of the ‘rules of the game’ when he
entered into the Agreement. Accordingly, he admitted at the Hearing of 21
March N+2 that he had received some improvements related to the exhaust
pipe, the insulation, the injection system and the head cylinders, however,
not to his satisfaction. Mr. Respondent 1 also stated that the engine had been
changed six times during the season in order to improve the running of the
motorbike and that he felt supported at least until mid-season.
[75] “As indicated earlier with respect to the ‘official’ and ‘satellite’ teams,
there was no basic assumption per se that Mr. Respondent 1 would necessarily
get upgrades and improvements by X to solve any technical problems .... Thus,
Respondents have not substantiated their allegations in this respect.
[76] “At any rate, Claimant cannot be blamed, even if such basic assumption
existed and was subsequently altered, quod non, in light of . . . the Agreement,
which Claimant observed in practice. Indeed, the witness hearing established
that the Y-X Team listened to Mr. Respondent l’s complaints, and tried to
improve the motorbike . . . .”

c Stability of the motorbike
[77] “According to Respondents, Mr. Respondent 1 did not expect a

motorbike with significant stability problems, nor the ensuing unusually high
number of accidents suffered by X riders, including himself, during the season.
He did not expect in November N-l that these accidents would even threaten
his physical integrity.
[78] “The X bikes used in season N had significant stability problems. During
the N season, Mr. Respondent 1 suffered Number S-2 accidents during official
competitions. In N, the Championship calendar included Number S races. Mr.
Respondent 1 was the rider to suffer one of the highest number of falls during
that season. Respondents submitted that Mr. Respondent 1 cannot be blamed for
the lack of performance or the number of accidents, which is to be blamed on the
motorbike. If one compares the number of accidents of the two X teams with the
two W teams in N, one realizes that there was something wrong with X that
year: X riders fell a total of more than twice as much as W riders. According to
Respondents, the number of injuries Mr. Respondent 1 suffered during the N
season also gives credit to the problems that arose that year. He undertook
surgery more than once in N as a consequence of the accidents suffered that
very year.
[79] “Conversely, Claimant denied that Mr. Respondent 1’s falls during the N
season were attributable to the motorbike. The statistics of the N+l season
disprove this theory. When Mr. Respondent 1 switched to W in N+l, there
was no dramatic change. During the N+l season, Mr. Respondent 1 was still
among the top four riders in falls and still registered falls in the double digits.
Furthermore and still according to Claimant, there are so many variables
involved in the stability of a professional motorbike rider that it is not possible
to attribute Mr. Respondent l’s falls to the bike alone. Accordingly, the physical
injuries suffered by Mr. Respondent 1 in the N season are irrelevant to the
determination of ‘changed circumstances’. While they may be the result of
bad luck, they do not contribute to determining the ability of the parties to
perform the obligation secured by the penalty clause - even though they may
have affected Mr. Respondent l’s wish to perform said obligation.
[80] “On the basis of the record . . . Mr. Respondent l’s number of falls did
not substantially vary from N ... when he rode for the Y-X Team, to N+l (N
number of falls minus 4), when he rode for the W Team. As a matter of fact, his
teammate within the Y-X Team, Mr. J, experienced less falls during N . . . and
the two riders of the X Factory Team experienced approximately the same
number of falls. . . .
[81] "It is difficult to draw any conclusion as to the stability of the X
motorbike from these numbers. Some appear to support Respondents’

Sc::3C>' . j:sÿ5B3ZBgg
Isi
arguments, while others disprove them. In any event, the stability of a
motorbike depends on a combination of various factors, which leads to interpret
any statistics on a case-by-case basis.Specifically, the number of falls depends on
the stability of the motorbike, the rider, the weather, the tyres, breaks, change of
gears, etc., as Mr. C explained at the Hearing of 9 March N+2
Respondent t himself, as an experienced rider in the Championship, shared
.... Mr.
that view and explained at the Hearing on 21 March N+2 that his falls during
the N season may have been linked to the accident he suffered during the first
race of the season without, however, attributing a specific cause to his fall.”
d. Arrival of Mr. A
[82] "According to Respondents, Mr. Respondent 1 never envisioned that X

■'S' would hire his rival in the Championship, Mr. A, during the term of his contract,
with the result that he would inevitably be relegated to second rider of the Y-X
Team or to second preference of his sponsors. Respondents contended that all
the technical and engineering resources during the season were focused on a
different project: developing a new X motorbike for Mr. A, entirely different
from the motorbike used during N. This was kept confidential at least from
Mr. Respondent 1 ... . Therefore, X stopped or limited its efforts to develop
[a certain type of bike] and started to develop a new bike in mid-N season.
In particular X prepared four engines, four chassis and four sets of parts for
the new bike to be ridden by Mr. A.
[83] "Claimant argued that the arrival of Mr. A was irrelevant to the parties’
ability to honour their commitments. It was an excuse for Mr. Respondent 1 not
performing but did not provide any justification. Quite to the contrary, it
seemed that the departure of Mr. A from the W Team offered Mr.
Respondent 1 the possibility to return to W, an opportunity that justified -
in Mr. Respondent l’s view - breaching the Agreement.
[84] “On the basis of the record, it is undisputed that pre-contractual talks
between X and Mr. A began at the end of the summer of N with the view to
upgrading X’s performance. Both the manager of X, Mr. L, and the manager of
the Y-X Team, Mr. Q, stated at the Hearings on 9 March N+2 and 16 March
N+2 that Mr. A and Mr. Respondent 1 could have competed alongside for X as
the structure contemplated was A and H for the X Factory Team and Mr.
Respondent 1 and M for the Y-X Team. As a matter of fact, the arrival of
Mr. A would have enhanced the performance of his teammates, including
that of Mr. Respondent 1, in terms of cooperation and feedback.
Ï [85] “Although it is entirely conceivable that Mr. Respondent 1 had doubts
about the consequences of Mr. A’s arrival, in particular in terms of equal treat¬
ment, there was no basic assumption when he entered into the Agreement that
\ Reprinted from the Yearbook Commercial Arbitration 119

l
the X Factory Team would refrain from hiring new riders including top riders
for the N+l season. Incidentally, contrary to Respondents’ allegation, there is
no element on record establishing that the new motorbike was being developed
in parallel during the N season exclusively for Mr. A. The press article referred
to by Respondents in this respect is dated 28 January N+l, after Mr. A had
signed up with X and Mr. Respondent 1 with W; it mentions development over
six months but not in direct and exclusive connection with Mr. A .... As a
matter of fact, in accordance with Mr. L’s testimony, such development would
have equally benefited Mr. Respondent 1 had he stayed with X.”
c. Conclusion
[86] “Therefore, the Sole Arbitrator finds that Respondents’ arguments with
respect to the alleged change of circumstances leading to the unenforceability of
the penalty clause contained in the Sixth Clause of the Agreement are without
merit.”
2. Discretion to Reduce the Penalty
[87] “As a subsidiary defence for the event that the Sole Arbitrator decided in
favour of the enforceability of the penalty clause, Respondents requested that
she exercise her discretion to reduce the penalty on grounds of the interplay of
three legal principles: good faith, change in circumstances, and discretion of the
courts to mitigate penalty clauses.
[88] “Art. 1154 of the Spanish Civil Code provides that the court shall equi¬
tably modify the penalty when the principal obligation has been partly or irreg¬
ularly performed. The provision refers to modification, but there is no doubt
amongst learned authors that it allows a reduction, not an increase. In the event
of partial or irregular performance, the provision leaves no discretion to the
court and mandates reduction.
[89] “Respondents submitted that the authority to reduce the penalty clause
was also an inherent consequence of the power of the courts not to enforce a
penalty clause in case of changed circumstances. According to learned authors,
the authority of the courts to interfere in the bargain by not enforcing the clause
relies on equitable considerations.
[90] “Claimant agrees that a reduction of the penalty pursuant to Art. 1154 of
the Spanish Civil Code must be based on partial or irregular performance.
Nonetheless, it submitted that there were no degrees in performance of the obli¬
gation the penalty intended to secure in the present case. Indeed, Mr. Respondent
Ts breach of the obligation was total: he simply failed to honour his commitment
for the N+l season. Thus, there is no basis for a reduction of the penalty.

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[91] “Moreover, Claimant denied Respondents’ argument in favour of reduc¬
ing the penalty for reasons related to the alleged change in circumstances, as it is
unsupported under Spanish law and intended to entice the Sole Arbitrator to
exercise powers of amiable compositeur, which the parties have not conferred
upon her. The inapplicability of a penalty clause based on an essential variation
in the premise that triggers the penalty and the reduction of a penalty based on
partial or irregular performance of the obligation secured by the penalty, do not
follow the same rationale. Respondents’ plea for a reduction in the penalty is to
be dismissed accordingly.
[92] “Art. 1154 of the Spanish Civil Code reads as follows:‘El Juez modificará
equitativamente la pena cuando la obligación principal hubiera sido en parte o
irregularmente cumplida por el deudor.'
[93] “The parties agree that pursuant to such legal provision, the court may
¡fi¬
reduce the amount of the penalty in case of partial or irregular performance of
the obligation the penalty clause intends to secure.9 However, Claimant is
correct in pointing out that there is no partial or irregular performance in the
case at hand. Respondents terminated the Agreement at the end of the N season,
which is precisely the action the penalty clause sought to deter. Considering the
nature of the action sought to be sanctioned, there is no room for partial or
irregular performance.
[94] “As regards reduction on the basis of changed circumstances,
Respondents have not produced any legal literature or case law in support of
their argument. Be this as it may, Respondents have in any event not established
any change of circumstances .... Therefore, there is no ground for reduction of
the penalty and Respondents are liable to pay Amount 6 ... in full.”
ní. COMPENSATION FOR DAMAGES
[95] “Claimant has contended that Respondents are further liable to pay
damages on two separate grounds: first, the penalty cannot be construed as a
limitation of liability and, second, the parties have expressly agreed to indemnify
the damages sought in this arbitration. According to Claimant, Respondents
knew that they were bound for the N+l season and took their decision to
terminate the Agreement with full awareness that this would constitute a vio¬
lation of their obligations. They did so at a time which, in light of the assurances
given that they would honour their commitment for N+l, put Claimant in a
9. "See L. Diez-Picazo, Fundamentos del derecho civil patrimonial, Madrid 1996, p. 402 . .. -.'El art.
1154 no permite reducir o moderar una pena conventional porque sea excesiva, a que éste es tema
que pertenece a la autonomía de la voluntad de las partes. Sólo la modera cuando, prevenida para el
incumplimiento total, el incumplimiento es parcial or irregular.

situation that foreclosed any chance of hiring another rider who would have
given them the exposure of a top rider like Mr. Respondent 1.
[96] “On the other hand, Respondents have argued that under Spanish law, a
penalty clause bars a creditor from claiming damages in addition to the penalty
clause, subject to the parties agreeing to the contrary.
[97] “The Sole Arbitrator will now examine the two grounds for the damage
claim as well as the related objections.”
1. Parties’ Agreement for Compensation for Damages (No)
[98] “On the basis of Art. 1152 of the Spanish Civil Code, Claimant has argued
that the Tenth Clause of the Agreement expressly recognizes Mr. Respondent
l’s liability to the Y-X Team and towards Claimant 2 ‘for any direct damages
and prejudices, that may be incurred to either party due to his non-fulfilment or
incomplete fulfilment or fault with respect to the present Contract and/or his
obligations as Pilot for the Team’. According to Claimant, by virtue of the Tenth
Clause of the Agreement, the parties demonstrated their intent that the penalty
stipulated in the Sixth Clause have a specific compensatory function only, i.e. to
provide compensation for the failure to honour the commitment for the second
year - in essence, an early termination penalty. In the Tenth Clause, the parties
made it clear that other types of harm would also be compensable, which is fully
permissible under Spanish law. Furthermore, and still according to Claimant,
the parties provided in the Fourteenth Clause of the Agreement for an additional
mechanism for compensating a breach, which further indicates their intent that
the payment of the penalty be not the only relief agreed upon.
[99] “Given that the parties have agreed otherwise, Claimant argued that it
was entitled not only to the payment of the N+I season retainer fee pursuant to
the Sixth Clause but also to compensation for damages that Mr. Respondent 1
caused to the Y-X Team and to its sponsor.
[100] “Claimant further argued that there is no support in the case law on Art.
1152 of the Spanish Civil Code for the novel and formalistic argument proposed
by Respondents, whereby the parties’ express agreement to allow additional
damages beyond those liquidated in a penalty would have to be found in the
penalty clause itself.
[101] “According to Respondents, Art. 1152 of the Spanish Civil Code should
be interpreted in the sense that a debtor may claim undetermined damages in
addition to a penalty if the parties have so agreed in the penalty clause and not
elsewhere in the contract. Otherwise, contracts including penalty clauses that are
found in day-to-day transactions would become incredibly difficult to enforce.
Respondents are of the view that the Tenth Clause of the Agreement simply
addresses the problem that Mr. Respondent 1 is not a party to the Agreement;

4

only Respondent 2 is. Such clause intends to clarify that Mr. Respondent 1 - in
addition to Respondent 2 - was also liable to Claimant 1 and Claimant 2 in case
of non-performance of the obligations under the Agreement. Respondents there¬
fore submit that there was no agreement between the parties as required by
Art. 1152 of the Spanish Civil Code that undetermined damages would be pay¬
able in addition to the penalty. Therefore, even in the worst-case scenario,
Respondents’ liability would be capped at the level of the penalty.
[102] “Art. 1152 of the Spanish Civil Code reads as follows:
J
'Artículo 1152
Z
En las obligaciones con cláusula penal, la pena sustituirá a la indemnización
r
de daños y al abono de intereses en caso de falta de cumplimiento si otra cosa
no se hubiere pactado.
a ■
Sólo podra hacerse efectiva la pena cuando ésta fuere exigible conforme a
¡K
las disposiciones del presente Código.’ [footnote omitted]
[103] “As mentioned earlier in connection with the interpretation of the Sixth
Clause of the Agreement ... the Spanish Supreme Court has defined a penalty
clause as follows:‘la clausula penal ...
es un pacto accesorio cuya finalidad es la
de asegurar el cumplimiento de la obligación convenida, sustituyendo en la pre¬
visión de las partes a la indemnización de daños y perjuicios si se produce el
incumplimiento .. . \10
[104] “Under Spanish law, the predominant function of a penalty clause is to
liquidate damages beforehand and to replace the payment of damages accord¬
ingly, it being specified that a contrary agreement is admissible if it is unequiv¬
ocal. [footnote omitted] Claimant has relied upon the Tenth and Fourteenth
Clauses of the Agreement to show the parties’ contrary agreement within the
meaning of Art. 1152 of the Spanish Civil Code.
[105] “The Tenth and Fourteenth Clauses of the Agreement provide the
following:
‘TENTH. Considering that Claimant 2 has contracted, with Respondent 2

the RIDER’s services but that the RIDER shall be under the instructions,
orders and discipline of Z, Respondent 2, and therefore, the RIDER will be
liable vis-á-vis Claimant 2, but also and especially vis-á-vis Z for any direct
damages and prejudices that may be incurred to either party due to his
non-fulfillment or incomplete fulfillment or fault with respect to the pre¬
sent Contract and/or his obligations as Pilot for the TEAM.
10. “See Decision of the Spanish Supreme Court, 10 November 1983 . . . .”
Reprinted from the Yearbook CommerciafArbitration 123

Î:
Respondent 2 subscribes and delivers to Claimant 2 a letter for Z, rec¬

ognizing its direct responsibility towards Z and agrees to compensate Z
for any damages and prejudice that may be suffered as a result of non¬
fulfillment of the RIDER’s obligations, as referred to in the Second Clause
of the present Contract.
Respondent 2 will be jointly liable vis-á-vis Claimant 2 and Z as regards
the strict, accurate and loyal fulfillment of the duties and obligations fixed
in charge of the RIDER.
FOURTEENTH. Any party to this Contract may notify the other party
of breach of any provisions of this Contract. When no remedy is given
within 15 (fifteen days) as of the receipt of the notification, the breaching
party shall pay the other party Amount 6 as penalty . . .
[106] “In light of the parties’ divergent views on such provisions, the Sole
Arbitrator will resort to contract interpretation pursuant to Art. 1281 et seq.
of the Spanish Civil Code referred to . . . above.
[107] “The wording of the Tenth Clause provides for Mr. Respondent 1 and
Respondent 2’s liability for damages towards Claimant 1 and Z in case of non¬
performance or incomplete performance of Mr. Respondent l’s obligations as
rider for the Team. Beyond the actual wording of the contractual clause, the Sole
Arbitrator will verify whether the parties’ intention was to provide for damages
arising out of the termination of the Agreement in addition to the penalty.
[108] “The Tenth Clause of the Agreement makes clear reference to the fact
that Mr. Respondent 1 would be riding for the Y-X Team managed by Z with
which Claimant 2 had entered into the Sponsorship Agreement .... The latter
contract is expressly mentioned in the Second Clause of the Agreement, to
which the Tenth Clause of the Agreement refers, and which reads as follows:
‘SECOND. Respondent 2 declares, guarantees and will be responsible and

liable for, and it will inform the RIDER, of all the sporting, professional and
advertising aspects of the Agreement between and Claimant 2 and Z, stating
the duties and obligations of the TEAM. Respondent 2 commits itself, as far
as its authority allows, to ensure that the RIDER will strictly and completely
respect and fulfill all above-mentioned aspects of this Contract. Respondent
2 will be liable in the case of the RIDER’s non-fulfillment of his duties and
obligations, vis-á-vis Claimant 2 and Z. In order to avoid any doubt, mis¬
understanding, and to facilitate the fulfillment by the RIDER of the terms
and conditions of the Agreement between Claimant 2 and Z, all the relevant
details are attached to this Contract, as Schedule no. 1.’
[109] “This tends to show that the Tenth Clause was agreed upon to remedy
the fact that Mr. Respondent 1 or Respondent 2 did not have a contract with Z,

r
■; CASE NO. 13278, 2005 ARBITRAL AWARDS
S
the company operating and managing the Y-X Tearn, for which Mr. Respondent
1 was to ride and which Claimant 2 was to sponsor.
[110] “In fact, the first paragraph of the Tenth Clause of the Agreement
addresses the issue of liability of Respondent 2 and Mr. Respondent 1 towards
Claimant 2 and Z for damages arising out of the non-performance or irregular
performance of Mr. Respondent 1’s obligations as a rider for the Y-X Team,
such as those stipulated in Art. 1.3 of the Agreement (e.g. obligation not to
compete in potentially hazardous events, obligation to refrain from activity
that might cause adverse publicity to Z or Claimant 2, obligation to comply
with instructions regarding safety equipment). The second paragraph of the
Tenth Clause of the Agreement, read in connection with the Second Clause
of the Agreement, addresses in turn the issue of liability of Respondent 2
towards Claimant 2 and Z with respect to Mr. Respondent Ts obligations as
rider under the Sponsorship Agreement. The third paragraph merely specifies
■x. .. that Respondent 2 would be jointly liable to Claimant 2 and Z for the fulfilment
of Mr. Respondent Ts obligations as rider.
[Ill] "As for the Fourteenth Clause of the Agreement, it does not refer to
damages but to a penalty in case a breach is not remedied within a specific time
limit, which acts as an incentive to promptly remedy the breach.
[112] “Having said that, the only obligation at stake in this arbitration is the
continuation of performance during the N+l season. For the non-performance
of such obligation, the Sixth Clause of the Agreement expressly provides a
penalty and the Agreement contains no basis for damages in excess of the
penalty, it being specified that such basis would have to be unambiguous.
[113] “Thus, with respect to that obligation in particular, i.e. the obligation to
perform in N+l, the Sole Arbitrator holds that the penalty clause under the
Sixth Clause of the Agreement was intended to deal fully with all the financial
consequences of the termination of the Agreement for the N+l season. In other
words, there was no contrary agreement allowing the parties to claim damages
beyond the amount of the penalty.”
2. "Dolo”
[114] “According to Claimant, Mr. Respondent 1 not only breached the

Agreement wilfully and deliberately but also continued giving assurances
until the very last minute that he would fulfil his contractual commitments
for the N+l season, thereby putting Claimant in a position that prevented it
from procuring the services of another top rider.
[115] “Claimant argued that dolo is a concept under Spanish law roughly
equivalent to bad faith. It implies wilful behaviour and is defined in legal writ¬
ings as 'el incumplimiento de la obligación realizado de modo consciente y volun¬
tario por el deudor’. The element of intent required for establishing dolo does not

!
need to rise to a level of malicious intent; it is sufficient that the breach be

conscious and deliberate for it to be considered ‘doloso'. Because Spanish case
law refers to the elements of dolo as comprising‘voluntariedad.' and ‘condénela’,
Claimant refers to dolo as willful or deliberate breach.
[116] “Mr. Respondent 1 had no complaints with Claimant or with the Y-X
Team. His problems were allegedly with the X motorbike. But Mr. Respondent
l’s contract was with Claimant, not with X. Whenever Mr. Respondent 1 com¬
plained about problems with the motorbike, Claimant responded by offering
him encouragement and support and by discussing his complaints with X. On
many occasions, Claimant reminded him that he had a two-year commitment
and Mr. Respondent 1 always accepted that he was bound to fulfil his commit¬
ment. In Claimant’s view, Respondents nevertheless ended up breaching the
Agreement in full awareness that they had a two-year commitment and with
total disregard for the needs of the Y-X Team and for the efforts of their sponsor.
[117] “Claimant further argued that Respondents demonstrated not only dolo
but also actual bad faith on 2 November N, when Mr. Respondent 1 confirmed
to Claimant his intent to honour his commitment for the N+l season while he
apparently had no intention of doing so. As Respondents admitted in their
Answer to the Request for Arbitration, this confirmation was given after Mr.
Respondent 1 had already taken ‘his decision to leave the Team’ and on the same
day that ‘Mr. Respondent 1 and W entered into an agreement for Season N+l’.
To make matters worse, Respondents then waited another month to finally
notify Claimant of Mr. Respondent l’s intention to abandon the Y-X Team.
Respondents’ notification letter of 28 November [N], as well as the subsequent
correspondence, was also made in bad faith according to Claimant, as there had
never been any ‘joint consent’ to rescind the Agreement.
[118] “Thus, not only did Respondents breach their obligations wilfully and
knowingly, i.e. with dolo, but they also acted in bad faith. Mr. Respondent 1
admitted that as early as 5 October N, he had made up his mind not to race for
the Y-X Team during the N+l season and that he ‘subsequently signed a pre-
contractual agreement with W’. However, Mr. Respondent 1 kept acknowledg¬
ing that he was contractually bound to X for N+l. Even if one were to believe
Mr. Respondent 1’s account of the facts, he kept entertaining the possibility of
honouring his commitment to Claimant during the N+l season, although he
had already reached an agreement with W.
[119] “Still according to Claimant, Respondents at any rate failed to timely
notify Claimant of their intention not to ‘renew’ for the N+l season. Therefore,
even under Mr. Respondent l’s version of the meeting of 2 November N,
Respondents had still not notified a decision with respect to the coming year
by the last date on which the ‘one-year contract’ was in effect. By any standard of
fair play, Respondents cannot be deemed to have given reasonable notice of their

Ii;
!
decision not to renew. Clearly, the failure by Respondents to be forthright about
their true intention on 2 November N was a manifestation of their bad faith.
[120] “Claimant submitted that Respondents’ dolo and bad faith pursuant to
Arts. 1102 and 1107 of the Spanish Civil Code entitled Claimant to all of its
damages suffered as a result of Respondents’ breach.
[121] “Respondents have conceded that the definition of dolo within the con¬
text of breach of contract has been fairly described by Claimant. The elements of
dolo are: (i) the consciousness that a party breached a contract obligation; and (ii)
the deliberate choice to breach such obligation. The intention to harm is not a
necessary element of wilful misconduct under Spanish law. But the conscious¬
ness of the breach is. Respondents have denied that this requirement was met in
the present case. In other words, Respondents have conceded that Respondent 2
and/or Mr. Respondent 1 deliberately decided to bring the contractual relation¬
...I. ship to an end but denied that the other prerequisite, i.e. the consciousness that
:: they would breach the Agreement, was met. Respondents have also conceded
that they might have been wrong in their interpretation of the Agreement but
insist that they acted in good faith and did not breach a contractual term con¬
sciously, i.e. with a clear understanding that they committed a breach.
[122] “In addition, Respondents argued that even if there was a breach of the
Agreement, quod non, the facts in this arbitration would not warrant a finding of
wilful misconduct (doloso), at least not under Spanish legal principles governing
penalty clauses. According to Respondents, the Sole Arbitrator should be mind¬
ful that the question is whether there was willful misconduct resulting in a
breach that would allow damages in addition to or in excess of a penalty clause,
not just whether there was wilful misconduct (incumplimiento doloso). This is an
important distinction when it comes to determining whether there was willful
misconduct in a case where there was a fair discussion as to the proper con¬
struction of a contractual clause.
[123] “Respondents further argued that they sought to terminate the
Agreement on good terms. That is why Mr. Respondent 1 requested on several
occasions to leave. It is in no one’s interest to leave a team on bad terms and
surely not in Mr. Respondent l’s who as a rider, depends on sponsors to par¬
ticipate in the Championship. Mr. Respondent l’s conduct shows, if anything,
his good faith and intention to leave on good terms.
[124] “Arts. 1102 and 1107 of the Spanish Civil Code relied upon by Claimant
read as follows:
'Artículo 1102
La responsabilidad procedente del dolo es exigible en todas las obligaciones.
La renuncia de la acción para hacerla efectiva es nula, [footnote omitted]

Artículo 1107
Los daños y perjuicios de que responden el deudor de buena fe son los pre¬
vistos o que se hayan podido prever al tiempo de constituirse la obligación y
que sean consecuencia necesaria de su falta de cumplimiento.
En caso de dolo responderá el deudor de todos los que conocidamente se
deriven de la falta de cumplimiento de la obligación.' [footnote omitted]
[125] “The parties agree upon the requirements for dolo under Spanish law,
namely the deliberate breach of an obligation {voluntariedad ) and the con¬
sciousness of breaching such obligation {conciencia). Malicious intent or intent
to harm, however, does not constitute a prerequisite. In other words, the ele¬
ments constituting dolo can be summarized as follows:
‘Todo ello lleva a pensar que en el concepto de dolo civil deben entenderse
incluidos no tanto los supuestos de voluntario incumplimiento cuando aquel¬
los en que el deudor es consciente que su comportamiento provoca o puede
provocar un daño y no adopta las medidas necesarias exigidas por la buena fe
para evitarlo.’11
Thus, dolo comprises in substance both the deliberate breach of an obligation
and the consciousness that such breach will or could cause damage to the other
party.
[126] “Respondents have conceded that they deliberately decided to bring the
Agreement to an end at the close of the N, season but denied the consciousness
of breaching any obligation with the effect of causing damage. The first require¬
ment of dolo {voluntariedad) not being disputed, the Sole Arbitrator will pro¬
ceed to review whether the second requirement of consciousness is met.
[127] “On the basis of the record before the Sole Arbitrator, the chronology of
the events relating to Mr. Respondent 1 leaving the Y-X Team at the end of the
N season are the following. On 5 October N, the parties met in Japan [on the
occasion of a race]. During such meeting, Mr. Respondent 1 reiterated his
discontent with the X motorbike and suggested a switch to W as he had already
done in July of that year in Germany, as well as in August in the Czech Republic
[on the occasion of two other races]. It is undisputed that on the occasion of the
meeting in Japan, Mr. Respondent 1 made up his mind to leave the Y-X Team at
the end of the N season and inquired about the possibility of doing so ... . Such
view was conveyed to Mr. G, which Ms. R’s testimony at the Hearing on 9
March N+2 confirmed in spite of Mr. G orally denying that fact in contradiction
11. “See L. Diez-Picazo, Fundamentos del derecho civil patrimonial, Madrid 1993, p. 612 . . . .”

z-zsyrsygyy -ÿ
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with his written statement .... It is undisputed that Claimant 2’s response was
that Mr. Respondent 1 should stay on the team in light of his two-year com¬
mitment under the Agreement ....
[128] “Shortly after the 5 October N meeting, a series of press articles were
released throughout the month of October, the topic of which was the possible
‘switch’ of Mr. Respondent 1 with Mr. A, the former joining W and the latter
joining X .... As already mentioned with respect to the interpretation of the
'ÿ
term of the Agreement . . . such press articles state that Mr. Respondent 1 was
fully aware of the financial consequences of such a switch of riders for X and W,
i i.e. the payment of a penalty as far as he was concerned.

[129] “On 2 November N, the parties met again in Spain. It is undisputed that
during that meeting the parties discussed Mr. Respondent 1 leaving the Y-X
Team despite his two-year commitment, which Claimant 2 representatives
¿Í-
repeatedly stressed .... The outcome of such meeting remains unclear,
however, in light of the record. Claimant’s witnesses mentioned in their witness
statements that Mr. Respondent 1 would stay ‘because he had to’ ... . However,
as gathered from the oral testimonies at the witness hearing, such a
straightforward conclusion ought to be tempered. First, Mr. G explained that
during that meeting no contractual issues were specifically raised. Second, Mr. Q
confirmed that the meeting was inconclusive, and that it remained unsettled
whether Mr. Respondent 1 would stay or not. In that respect, Mr.
Respondent 1 confirmed both in his written and oral statements that he never
said he would stay unreservedly .... Thus, it would appear that the parties tried
to discuss and reach a common view as to Mr. Respondent l’s future as a
Championship rider, which probably explains the subsequent letter of 28
November N.
[130] “Regarding Claimant’s argument that Mr. Respondent l’s decision to
leave was untimely, the Sole Arbitrator is of the view that both parties, as
experienced .professionals in the Championship business, should have made
their intent clearer with respect to the future of the Y-X Team or the X
Factory Team for that matter, and its riders. As a matter of fact, the decision
not to renew for the N+l season belonged to both parties under the Sixth Clause
of the Agreement. If Claimant knew of Mr. Respondent l’s discontent with X
and wish to switch to W since summer let alone in light of the press articles
released since the beginning of October N, the question arises as to why
Claimant 2 did not put Mr. Respondent 1 on notice in order to remedy the
alleged harmful potential absence of a rider, if any, although it was practically
clear under the circumstances that Mr. A would substitute Mr. Respondent 1
within X.
[131] “Be it as it may, from Mr. Respondent l’s standpoint, the circumstances
led him to believe that Mr. A would undoubtedly replace him and he could not
Í
S'.
I
I
i
!
-
M
have inferred in such a case that his leaving the Y-X Team would cause any
damage to Claimant, in that it would eventually have to hire Mr. H who hap¬
pened to be one of the substitute riders for the Y-X Team under Art. 6 of the
Sponsorship Agreement ....
[132] "Further, although Mr. Q explained at the Hearing on 16 March N+2
that the structure contemplated in Claimant’s view for the N-j-1 season could
have been Mr. A/Mr. H riding for the X Factory Team and Mr. Respondent 1/
Mr. M riding for the Y-X Team, there is no element on record showing that Mr.
Respondent 1 had been informed thereof nor that he knew if Mr. J would be
riding for X in N+l, or not. Indeed, Art. 5 of the Sponsorship Agreement
provided that Mr. J could be dismissed during the N season or not be renewed
as a rider for the N+l season, thereby possibly requiring a second rider to be
replaced ....
[133] “Hence, the record has. shown that Mr. Respondent 1 expressed his
discontent with X and his wish to switch to W repeatedly since summer N.
On the other hand, the record has not established that Mr. Respondent 1 told
Claimant at the meeting of 2 November N that he would stay with the Y-X
Team. Further, the record has not shown that Claimant, or X for that matter,
ever discussed with Mr. Respondent 1 the effect of Mr. A’s arrival or the con¬
ditions of their riding alongside for X according to the allegedly contemplated
N+l team structure referred to above. Having said that, the climate of uncer¬
tainty in the paddocks was in addition known to all participants in light of the
various press articles released on the topic.
[134] “Therefore, as a result of these facts, the Sole Arbitrator is not minded to
consider Claimant’s allegation that Mr. Respondent 1 gave assurances that he
would stay until the very last minute. Furthermore, the Sole Arbitrator does not
deem Mr. Respondent 1 conscious that his leaving at the end of the N season
would cause damage to Claimant under the circumstances. From Mr.
Respondent l’s standpoint, Mr. A would replace him within X and he could
not foresee that hiring Mr. M allegedly as a result of his leaving the Y-X Team
would entail any financial consequences for Claimant in terms of damages.
[135] “At any rate, the record has shown that Mr. Respondent 1, let alone both
parties, was fully aware that the financial consequences of his leaving at the end
of the N season would be the payment of the retainer fee as penalty pursuant to
the Sixth Clause of the Agreement. It has not shown that Mr. Respondent 1 was
aware that his leaving would cause any damage beyond the penalty amount.
[136] “As a result, the second requirement for dolo, which would give rise to
damages in addition to the penalty, is not met in the present case.
[137] “Therefore, the Sole Arbitrator will dispense with examining the parties’
arguments regarding the quantum of damages, as none can be claimed under
Spanish law.”

~ 'ÿ“•.•'-ÿ/--.-.Míícwy.-Sia:
•
I
í
IV. CONCLUSION
%
1. Amount Awarded
[138] "In light of the foregoing reasons, the Sole Arbitrator holds that
Respondents are to pay to Claimant Amount 6 as penalty as a result of the
termination of the Agreement at the end of the N season.”
2. Interest
■
i [139] "Claimant has claimed in its prayers for relief . .. interest on the
damages awarded to run from the date of breach, i.e. 28 November N, and
interest to be applied according to the applicable *tasa de interés legal in effect
in Spain when the award is made. In particular, Claimant has argued in its
Submission on costs that pursuant to Art. 1108 of the Spanish Civil Code
interest should be awarded with respect the amount of the penalty at the appli¬
cable legal rate from the date of the breach of contract, i.e. 28 November N, until
the date of payment. Based upon the rates established by the Ley de Presupuestos
Generales del Estado for the years N, N+l and N+2, Claimant has calculated an
average applicable legal interest rate of 3.85%. [footnote omitted]
[140] “On the other hand, Respondents have concluded in their prayers for
relief . . . that the claim for interest should be dismissed.
[141] “Art. 1108 of the Spanish Civil Code reads as follows:
'Si la obligación consistiere en el pago de una cantidad de dinero, y el deudor

incurriere en mora, la indemnización de daños y perjuicios, no habiendo
pacto en contrario, consistirá en el pago de los intereses convenidos, y a
falta de convenio, en el interés legal.’ [footnote omitted]
[142] “In light of the above, the Sole Arbitrator is of the view that awarding
interest on Amount 6 that Respondents are to pay to Claimant as a result of the'
termination of the Agreement at the end of the N season is justified in the
present case. Therefore, Respondents are to pay interest at the average applicable
legal interest rate of 3.85% on Amount 6 due to Claimant, from the date
Respondents terminated the Agreement for the N+l season, i.e. 28
November N, until payment.”
3. Provisional Execution
[143] “Claimant has further requested in its prayers for relief that the Award
be declared immediately enforceable (exécution provisoire . .. ), without,
I Reprinted from the Yearbook Commercial Arbitration 131

however, elaborating upon it. As for Respondents, they had ample opportunity
to object on this point, but did not do so.
[144] “The seat of the present arbitration being Paris, the Sole Arbitrator will
examine the relevant rules of the French Code of Civil Procedure (NCPC). Art.
1479 NCPC, which applies to international arbitration by virtue of Art. 1500
NCPC, provides:
‘The rules on provisional enforcement of judgments are applicable to arbi¬

tral awards.
In the case of an appeal or an action to set aside the First President or the
magistrate conducting the procedure, once the matter is referred to him or
her, may grant enforcement of the arbitral award and declare if provision¬
ally enforceable. He or she may also order provisional enforcement pur¬
suant to the procedure provided for in Arts. 525 and 526; his or her decision
shall be the equivalent of an enforcement order.’12
[145] “In the context of international arbitration, this entails in practice that
for international awards made in France, a declaration to that effect should
appear in the award itself. If provisional enforcement has been ordered in the
award, the judge may on appeal terminate it on specific grounds, i.e. if it is
prohibited by law or would have patently excessive consequences.13 In other
words, the purpose of such a declaration is the necessity to neutralize a stay of
enforcement in case of a request to set the award aside before French courts.14
[146] “As recendy highlighted by the Cour d’ Appel de Paris in its decision of
10 March 2005 rendered in connection with Art. 28 ICC Rules, a request to set
the award aside before the French courts will result in a stay of enforcement
unless the exécution provisoire of the award is declared. As a result, the award
may not be carried out without delay within the meaning of Art. 28 ICC Rules
unless such a declaration of exécution provisoire is made in the award.15
[147] “Consequently, the Sole Arbitrator will declare the present Award
immediately enforceable {exécution provisoire) as requested by Claimant.”
12. “See Fouchard, Gaillard, Goldman, On International Commercial Arbitration, Kluwer Law
International 1999, p. 1011.”
13. “See Fouchard, Gaillard, Goldman, On International Commercial Arbitration, Kluwer Law
International 1999, no. 1582, p. 900.”
14. “See Poudret/Besson, Droit comparé de l’arbitrage international, Bruylanc/L.G.D.J./Schultess
2002, no. 856, p. 845.”
15. “Art. 28(6} ICC Rules provides:
‘Every Award shall be binding on the parties. By submitting the dispute to arbitration under
these Rules, the parties undertake to carry out any Award without delay and shall be deemed to
have waived their right to any form of recourse insofar as such waiver can validly be made.”’

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$: 4. Costs
[148] “Claimant has requested that Respondents pay a[! Qf Claimant’s costs
if. related to the arbitration, including Claimant’s legal costs, plus interest .... In
particular, Claimant submits that it has incurred expenses in the amounts of
US$ ... and € . . . and paid the advance to the ICC in the amount of
US$ .... [footnote omitted]
[149] “On the other hand, Respondents have concluded that Claimant’s claim
to pay the costs related to the arbitration should be dismissed and that Claimant
should pay Respondents’ costs related to the arbitration .... Respondents sub¬
s; mit that they have incurred expenses in the amount of € . . . and paid the
advance to the ICC in the amount of US$ ....
[150] “In the present case, Respondents are liable to pay to Claimant the
amount of the penalty. However, Claimant does not prevail on all its claims,
namely its claim for damages. Under the circumstances, taking into account the
claims and the outcome, including the amount awarded and the fact that
Claimant had to start an arbitration to recover its due, as well as the parties’
conduct in the arbitration, especially the need for three instead of one witness
hearing occasioned by Respondent, the Sole Arbitrator in the exercise of her
discretion finds that Claimant shall bear 30% and Respondents 70% of costs of
the arbitration fixed by the ICC International Court of Arbitration.
[151] “The part of the costs of the arbitration within the meaning of Art. 31(1)
ICC Rules,16 which consists of the fees and expenses of the arbitrator and the
ICC administrative costs, has been fixed by the ICC International Court of
Arbitration at US$ .... The Sole Arbitrator notes that the parties have paid
the advances in this arbitration in equal shares, In view of the apportionment
referred to above, the Sole Arbitrator will order that Respondents bear 70% of
this amount and pay US$ . .. (70% of the total amount) - US$ . . . (share of the
advance on costs paid) directly to Claimant.
[152] “With respect to the other expenses incurred by the parties for this
arbitration within the meaning of Art. 31(1) ICC Rules, the Sole Arbitrator is
of the opinion that in light of the factors referred to above . . . and the
16. Art. 31(1) of the ICC Rules of Arbitration reads:

*' Decision as to the Costs of the Arbitration.
1. The costs of the arbitration shall include the fees and expenses of the arbitrators and the ICC
administrative costs fixed by the Court, in accordance with the scale in force at the time of the
commencement of the arbitral proceedings, as well as the fees and expenses of any experts
appointed by the Arbitral Tribunal and the reasonable legal and other costs incurred by the
parties for the arbitration.”

apportionment applied to the arbitration costs, it is reasonable that Respondents

contribute in part to Claimant’s costs and expenses.
[153] “Applying the apportionment referred to above, Respondents would
have to bear 70% of Claimant’s expenses .... However, given the disparity
in the amounts incurred by the parties as legal costs and expenses for this arbi¬
tration, the Sole Arbitrator finds it reasonable that Respondents contribute to
Claimant’s costs and expenses in the amount of US$ ....
[154] “Further taking all surrounding circumstances into account, the Sole
Arbitrator deems that the apportionment referred to above reflects a fair sharing
of the costs without there being in addition a need to award interest on such
costs. As a result, the Sole Arbitrator in the exercise of her discretion is not
minded to award interest on Claimant’s costs in the present case.”

■
INTERNATIONAL CHAMBER OF
COMMERCE
Parties: Claimant: Buyer (Non-European country)

Defendants: Sellers
S
?
Í Place of Paris, France
arbitration:
Published in: Unpublished
Subject matters: - stay of arbitration pending criminal proceedings (no)

- waiver of right to seek annulment of contract (no)
- fraudulent inducement {dot)
- mistake (erreur)
- precontractual liability
- equitable quantification of damages
- duty of confidentiality
Facts
The present case concerns the sale and purchase of the shares of a Luxembourg
insurance company operating under the European Union’s Freedom-to-
Provide -Services regime (FPS), the result of three Council directives (issued
in 1979, 1990 and 1994) allowing insurance companies to offer their products
in the European Union without having to be authorized to do so in countries
other than the country of their registered office or needing to set up an estab¬
lishment in those countries. Following the introduction of the FPS regime,
several EU Member States took measures to prevent funds from flowing to
Í
offshore centers such as Luxembourg, where at the relevant time banking secre¬
cy was protected also in respect of insurance companies and the proceeds of tax
evasion. Relevantly, France levied taxes on monies invested by French residents
in insurance products offered by Luxembourg insurance companies and
provided for an obligation to declare contributions to foreign insurance policies
on pain of a substantial penalty. The risks inherent to the pursuit of FPS

insurance activities in France and Belgium, the countries involved in the case at
issue, were referred to as “industry risks” or “general risks” in the award.
By a Share Purchase Agreement (SPA), Claimant purchased the shares in a
Luxembourg insurance company (the Luxembourg company) from Defendants -
five companies of the same group (the Defendant Group) - with the aim of
making it the central hub of its European insurance operations. The SPA was
governed by Luxembourg law; it also contained a clause providing for ICC arbi¬
tration of disputes in Paris.
A few years later, some of the Luxembourg company’s senior management,
staff and brokers were arrested in France in connection with criminal investiga¬
tions into suspected money laundering and tax evasion which allegedly involved
the company prior to the purchase of its shares by Claimant. Subsequently,
senior members of the management of the Defendant Group and a related
bank (the Bank) were also detained.
Claimant commenced ICC arbitration, seeking declaratory and injunctive
relief in respect of any past and future losses or damage resulting to Claimant
as a consequence of its acquisition of the Luxembourg company. Claimant
alleged that Defendants’ misrepresentations and failure to disclose material
facts in respect of the transaction breached their contractual and non-contractual
duties and that Claimant suffered substantial and continuing injury as a result of
Defendants’ actions. Defendants sought dismissal of all claims; they also filed a
counterclaim seeking damages on the ground that Claimant breached a duty of
confidentiality by divulging details about the arbitration to the press.
The Arbitral Tribunal denied Claimant’s request to annul the SPA on grounds
of dol (fraud) and erreur (mistake), but found that Defendants committed a culpa
in contrahendo in the negotiation phase of the SPA by intentionally withholding
information and were therefore liable for damages to Claimant. The Tribunal
further dismissed Defendants’ counterclaim, finding that there was no duty of
confidentiality between the parties.
The Tribunal first confirmed its earlier Order dismissing Defendants’ appli¬
cation to stay proceedings pending criminal proceedings in France, holding that
the issues at stake in each proceeding were fundamentally different and that
there was no reason to consider that the outcome of the criminal proceedings
might have an impact on the outcome of the arbitration.
The Tribunal held that the relief sought by Claimant was admissible even
though Claimant had contributed the shares in the Luxembourg company to
the capital of another company in the Claimant’s group. The arbitrators held
that by so doing Claimant did not waive its right to seek the annulment of the
SPA. Also, there would be no practical obstacles to the performance of an award
ordering the annulment of the SPA, considering that it would be within
Claimant’s power to take the necessary steps for such performance.
136 Reprinted from Hie Yearbook Commercial Arbitration

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CASE NO. 11961,2006 ARBITRAL AWARDS
f- The Arbitral Tribunal then dismissed Claimant’s argument that the SPA was
invalid on grounds of dol because the Defendant Group made misrepresenta¬
tions or withheld information on material facts, with the intention of inducing
Claimant to enter into the SPA. The arbitrators first made a distinction between
the “general risks” involving the conduct from Luxembourg of FPS activities in,
particularly, France and the risks specific to the Luxembourg company ("the
specific risks”). The former were well known at the time and a professional such
as Claimant could not ignore them. As to the latter, the Tribunal concluded that
on the basis of the evidence on record it was not proven that the Defendant
Group’s acts and omissions were motivated by an intent to deceive Claimant.
Nor was the SPA invalid because of an erreur as to the value of the business of
the Luxembourg company (rather than the value of the shares sold). Based on
the evidence, the Arbitral Tribunal concluded that the Luxembourg company
did not cease to be viable and that no convincing evidence was submitted that the
Defendant Group’s misrepresentations made Claimant’s project to make the
Luxembourg company the hub of its operations in Europe no longer possible.
The arbitrators held however that Defendants committed a culpa in contra-
kendo by breaching their duty to disclose material information in respect of the
“specific risks” of the Luxembourg company during the pre-contract sale
process. The tribunal reasoned that “Claimant was in a position to figure out
for itself that the conduct of FPS business in France entailed certain risks, but
could not have discovered, during the sale process, that the French Brigade de
Recherches et d’investigations Financières (BRIF) (Financial Research and
Investigation Brigade) had issued several requests relating to deposits to the
Luxembourg company’s account with the Bank and to certain practices of
the Luxembourg company’s brokers”. Although it was uncertain at the time
whether the BRIF Demands would lead to a criminal investigation, the
Defendant Group should have informed Claimant of those Demands.
On the issue of damages, the arbitrators considered that it appeared from the
evidence that the Luxembourg company’s business was detrimentally affected
by several factors during the relevant period. Lacking precise data to determine
the respective weight of the contributing factors, the Tribunal exercised its dis¬
cretion in respect of the individual items of the claim for damages.
It awarded a sum for the loss of the Luxembourg company’s value, denying
Claimant’s claim that the compensation be the price paid less the present value of
the Luxembourg company, and another sum for reputational damage, noting
that the detrimental impact of the investigation and arrests did not last for more
than a few months and with diminishing effect. The Tribunal did not award any
damages for the alleged impossibility to make the Luxembourg company the
hub of Claimant’s European operations, finding that there was no evidence that
Claimant’s expansion project has been significantly hampered or delayed.

The Arbitral Tribunal condemned the five Defendants in solidum notwith¬

standing the provision in the SPA that the Sellers of the Luxembourg com¬
pany’s shares did not act jointly and severally for the purposes of the SPA and,
particularly, with respect to the provision on indemnification. The Tribunal
reasoned that the sales team acted for all companies of the Defendant Group
and not individually, on behalf of each company, and concluded that there
was “no logical or other justification” in an order being issued to each
Defendant in proportion to the number of shares it held in the Luxembourg
company, nor in ordering each Defendant to pay one-fifth of the compensation.
The arbitrators then denied Defendants’ counterclaim, holding that the
parties did not enter into a confidentiality agreement regarding the arbitration
and that, while all parties involved in an arbitration have a duty of discretion,
they have no duty of confidentiality.
Finally, the Tribunal directed the Defendant Group, as the losing party, to
pay all the costs of the arbitration, bear its own legal fees and expenses and
compensate Claimant for its legal fees and expenses (which it found significantly
higher than Defendants’) up to a lump sum amount.
Excerpt
I. APPLICABLE LAW
[1] “As provided in the Terms of Reference:
‘The proceedings shall be governed by the ICC Rules and such other
mandatory rules under the law of France applicable to international arbi¬
tration taking place in France, and, where these Rules are silent, by such
other rules as may be agreed by the Parties or, failing the Parties’ agreement,
by the rules laid down by the Arbitral Tribunal.’
[2] “It is common ground that the Law of the Grand Duchy of Luxembourg
applies to this dispute.”
(....)
II. THE FREEDOM -TO -PRO VIDE -SERVICES REGIME
[3] “The Freedom to Provide Services (FPS) or Libre Prestation de Services

(LPS) regime in insurance is the result of three Council directives (issued in 1979,
1990, and 1994). It provides, in essence, that an insurance company may offer its

:.v.->£:-: -i--.-.-: L_

*
products throughout the territory of the European Union without having to be
« authorized to do so in countries other than the country of its registered office or
needing to set up an establishment in these countries.
l [4] “It was a well-known fact at the relevant time that the laws of the Grand
Duchy of Luxembourg protected banking secrecy and that such laws applied to
insurance companies. On 10 June 1991, the Council of the European Union
issued a directive on money laundering in the financial sector. In its implement¬
ing legislation, the Grand Duchy of Luxembourg did not cover the proceeds of
tax evasion.
[5] “As a consequence of the FPS on the insurance sector, a number of member
states, such as Italy, Greece, and Germany, took measures to prevent the flow of
funds to offshore centres such as Luxembourg. France was among the member
states that endeavoured and, to an extent, succeeded, in restricting the flow of
monies to be invested by French residents in insurance products offered by
Luxembourg offshore insurance companies [by levying taxes thereon and
providing for an obligation to declare contributions to foreign insurance policies
on pain of a substantial penalty]. [As a consequence,] at the relevant time, there
were risks inherent to the pursuit of FPS insurance activities in France and
Belgium, among other countries. This will sometimes be referred to hereafter
as the ‘industry risks’ or the ‘general risks’. The Luxembourg company lodged a
complaint against France with the European Union Commission based
on .. . the French tax provisions relating to the contracts with offshore
insurance companies.”
III. STAY OF ARBITRATION PENDING CRIMINAL

PROCEEDINGS (NO)
[6] “. . . . Defendants filed an Application for Suspension of the Proceedings

(the Application) [in connection with the pending criminal proceedings in
France], . . . The Tribunal issued an Order dismissing Defendants’
Application. The Tribunal decided that, (1) on the basis of the evidence submit¬
ted to it, it did not consider that there was any conflict between the issues
presented to it as arising out of the criminal proceedings and the issues before
it in these proceedings, and (2) it did not consider that the then-present situation
of the Parties was such that a complaint of inequality between the Parties or
violation of due process was founded.
[7] “Defendants informed the Tribunal that they reserved their rights to revisit
or challenge the Tribunal’s decision at a later stage, if necessary. Defendants also
noted that the Tribunal did not set out the reasons for its decision and assumed
that the Tribunal intended to do so in the final award or in an earlier award. This
issue was discussed at [a hearing]. . . .”

1. Defendants' Position
[8] “The Order summarized Defendants’ position as follows:
‘In their Application and in their Reply, Defendants argue that there is a
possible conflict between Claimant’s position in these proceedings and in
the French criminal proceedings, that the rule le criminel tient le civil en
l’état [criminal proceedings prevail over civil proceedings] is applicable to
arbitral proceedings with the seat in France and that it should be applied in
the instant case, failing which Defendants would be deprived of possibilities
of referring to the criminal proceedings (while Claimant could do so) and
that, therefore, the principle of equality of the Parties may be violated.’
[9] “According to Defendants, the French criminal proceedings are at the stage
of the instruction préparatoire [preparatory investigation] which will either end
by a decision of non-lieu [a decision that there is no ground for prosecution] or
a decision of renvoi [a decision to commence a criminal action]. In principle, the
instruction of the criminal proceedings is secret and Defendants and their Counsel
have no access to the documents which are part of the criminal file. Defendants
allege that there are several ‘areas of conflict’ between the criminal proceedings
and the arbitral proceedings, such as, (a) documents in the criminal proceedings
cannot be disclosed in the arbitral proceedings or to Defendants, (b) Defendants
cannot adduce evidence from the criminal file to counter witnesses’ evidence,
(c) Claimant may take inconsistent positions in the criminal proceedings and in
the arbitral proceedings, (d) potential witnesses in the arbitration ‘are constrained
by the fact that they are under criminal investigation’, and (e) there is a danger of
conflicting decisions between the French courts and this arbitration.
[10] “Defendants accept that the rule le criminel tient le civil en l’état is not
mandatory in international arbitration and the suspension has to be decided if
the decision in the criminal case is likely to have an [impact] on the civil (arbitral)
decision. For the reasons briefly summarized above, Defendants’ position is
that, in the instant case, the arbitral proceedings have to be suspended.
Defendants go on stating that if the Tribunal does not stay the proceedings,
there is a risk of violation of due process and of the equality between the Parties
(for reasons briefly indicated supra).”
2. Claimant’s Position
[11] “The Order summarized Claimant’s position as follows:
‘Claimant first points out that Defendants’ Application, if granted, would

result in Claimant’s claims being suspended for years, with all the

r~
i I
p
U
§ CASE NO. 11961, 2006 ARBITRAL AWARDS
consequences resulting therefrom with respect to evidence, and would pro¬
3 long the period during which Claimant suffers damages; generally, Clai¬
mant rejects Defendants’ reasons on which they base their Application.
Although Defendants have known about the French criminal procedure
f for several years, they have waited until a few weeks before the first evi¬
dentiary hearing to file their Application. Defendants had multiple occa-
sions to inform the Tribunal and/or Claimant of their intentions since the
beginning of the proceedings but in no way explain the long delay before
seeking a suspension. At some length, Claimant comments on the French
criminal proceedings and counter Defendants’ presentation as well as the
Æ
consequences drawn by Defendants. Claimant sees no conflict between
the arbitral proceedings and the French criminal proceedings: there is no
conflict between the issues in the two proceedings and the Parties have an
equal opportunity to present evidence to the Arbitral Tribunal. As the
French rule le criminel tient le civil en l'état is not mandatory in
international arbitration, it shall not be taken into account by this Tribu¬
nal which, however, Claimant acknowledges, has the discretion to do it.
None of the considerations adduced by Defendants in support of their
Application is founded: as already mentioned, there are no conflicts between
the issues arising under the criminal proceedings and the arbitral proceed¬
ings, and the denial of Defendants’ Application will not result in unfairness
or a breach of natural justice. In Claimant’s view, Defendants have violated
a duty of good faith in making their Application at this late stage
of the proceedings and without any consideration for the consequences
of the suspension for the other Party. In acting as they did, Defendants,
if followed by the Tribunal, would have caused great damage to Claimant.’”
3. Tribunal's Finding
[12] “It is settled law that it is within the discretion of an arbitral tribunal
?" sitting in France to apply the French rule le criminel tient le civil en état. The
Tribunal may apply such rule if it has good reason to consider that the decision
of the criminal judge could have an effect on the outcome of the arbitral
proceedings.
[13] “As regards a conflict between the issues in the criminal proceedings and
those in this arbitration, the Tribunal notes that the issues at stake in each
[ proceeding present fundamental differences. First, Claimant is not a party to
the criminal proceedings. Hence the ‘inconsistent positions’ argument can hard¬
ly apply. Second, Claimant’s case rests on Defendants’ attitude during the sale
process of the shares representing the Luxembourg company’s share capital, in
Reprinted from the Yearbook Commercial"Arbitration 141

connection with the alleged misrepresentations or non-disclosure to Claimant
of relevant and material information regarding the company, including the risk
of facing criminal charges, which was allegedly known by Defendants at the
time of the sale.
[14] “It is the Tribunal’s opinion that the risk of facing criminal charges is a
situation bearing consequences that are distinct from the consequences
resulting from the outcome of the arbitral proceedings; consequently, there
is no reason to consider that the outcome of the criminal proceedings,
whatever it may be, might have an impact on the outcome of this arbitration.
Hence, the Tribunal is of the opinion that there is no conflict between the
issues as they have been presented to it and those arising out of the criminal
proceedings.
[15] “Furthermore, the Tribunal notes that neither Claimant nor Defendants
are a party to the criminal proceedings, that there is no third-party criminal
liability (responsabilité pénale pour autrui) under French criminal law, and
that neither Party to the arbitration faces charges in the criminal proceedings.
The Tribunal has been informed that officers and/or employees of both Parties
have access to the criminal file, which means that each Party faces the same
restrictions with respect to accessibility to the criminal file and compliance
with the secret de l'instruction [confidentiality in the preparatory investigation].
The question of how each Party chooses to disclose, use or rely on the informa¬
tion it retrieves from the criminal file rests with each Party.
[16] “Given these factual and legal elements, the Tribunal is of the opinion that
the requirements pertaining to the principle of party equality have been met and
that there has been no breach of due process.
[17] “For the reasons stated above, the Tribunal confirms its dismissal of
Defendants’ Application for Suspension of the Proceedings.”
IV. RELIEF SOUGHT IS IMPOSSIBLE (NO)

[18] “Defendants raise a preliminary defence against Claimant’s claim to
annul the SPA on the basis of dol [fraud] or erreur [mistake]: they argue that
as the ownership of the Luxembourg company shares has changed hands since
the SPA was executed, the annulment sought is at best impracticable, if not
impossible. Claimant disputes this argument.”
1. Defendants’ Position
[19] "Defendants point out that Claimant no longer owns any of the shares
that Claimant purchased from Defendants pursuant to the SPA, since these
shares have been contributed to the capital of another company in the

I
:
K
Claimant’s group (Company X); they further point out that Company X is not a
party to the arbitration proceedings. Defendants argue that the change of own-
ership of the Luxembourg company shares creates a number of practical diffi¬
culties in relation to the relief sought by Claimant: in Defendants’ view, it is not
I clear how the Tribunal could order Company X to transfer back to Defendants
the Luxembourg company shares that company X currently owns; they add
that an annulment award would have an impact on the capital structure of
Company X.
In support of their argument, Defendants cite a decision from the Paris Court
I of Appeal that held that where a purchaser of shares resells these shares to a third
I party, the retrocession deprives the purchaser/reseller of the right to seek the
annulment of the first share purchase contract. Defendants contend that, since
5'
7
•
I Claimant contributed the Luxembourg company shares to Company X,
Claimant has deprived itself of the right to seek the annulment of the SPA.”
r 2. Claimant’s Position
: [20] “Claimant holds that the intra-group transfer of the Luxembourg

company shares between itself and Company X does not render an annulment
order impossible nor difficult as Company X is a subsidiary of Claimant and is
controlled by Claimant; if the Tribunal orders Claimant to transfer the
Luxembourg company shares back to Defendants as a consequence of an annul¬
ment decision, Claimant contends that it shall be in a position to comply with
such order.”
3. Tribunal’s Holding
[21] “The Tribunal observes that a sale and purchase of shares, on the one
hand, and a contribution in kind of shares to the capital of a company, on the
other hand, entail the same consequences with respect to the transfer of own¬
ership of the shares: title to the shares passes to the purchaser or to the
beneficiary of the contribution in kind. The Tribunal notes that Defendants
do not elaborate on the reasons that led to their conclusion that, by contributing
the Luxembourg company shares to the capital of Company X, Claimant has
deprived itself of the right to seek the annulment of the SPA. The Tribunal
notices that the Paris Court of Appeal decision cited by Defendants does not
contain an explanation in this respect. It appears, however, from that decision
that the cession of the shares occurred after the purchaser/reseller became fully
aware of the situation that led it to seek the annulment of the initial share
purchase agreement.

[22] “In the instant case, Defendants do not prove that when Claimant contri¬
buted the Luxembourg company’s shares to the capital of Company X, Claimant
was fully aware of the facts and circumstances that led it subsequently to seek the
annulment of the SPA. Therefore, the Tribunal’s opinion is that, at the time of the
two contributions in kind, Claimant cannot be deemed to have waived its right to
seek the annulment of the SPA. There is no evidence in the record of such a
waiver, which, according to a generally accepted principle, cannot be presumed.
[23] “It is a fact, however, that the ownership of the Luxembourg company
shares has been transferred to Company X and, although such company is a
subsidiary of and is controlled by Claimant, the two companies are different
legal entities. The Tribunal notes Claimant’s statement to the effect that it will
comply with a decision annulling the SPA. As Company X is not a party to these
proceedings, a decision annulling the SPA could not be enforced legally against
Claimant or against Company X and the efficacy of such a decision would be
dependent on Claimant’s compliance with the award.
[24] “In short, the Tribunal’s opinion is that (i) Claimant has not waived
its right to seek the annulment of the SPA by contributing the Luxembourg
company shares to Company X, and (ii) the fact that the shares are not presently
owned by Claimant does not constitute an obstacle to the performance of an
award ordering the annulment of the SPA considering that it would be within
Claimant’s power to take the necessary steps for such performance.”
V. SPA IS INVALID BECAUSE OF DOL (FRAUD) (NO)

[25] “At the outset of these proceedings, Claimant sought a remedy in the
form of damages. It is only in its Statement of Case that it asserted a claim for the
annulment of the SPA. It is Claimant’s case that the SPA has to be annulled on
the ground that its consent given was induced by false representations about
material facts or by the non-disclosure of material facts. The case is based on the
following provisions of the Luxembourg Civil Code:
‘Art. 1109. There can be no valid consent if such consent has been given
through mistake, or has been extorted through violence or surreptitiously
obtained by fraud.
Art. 1110. Mistake is not a cause for annulling the agreement except when it
occurs in the very substance [of the agreement].
It is not a cause for nullity when it occurs only in the person with whom
it is intended to contract, unless the consideration of such person were the
principal cause of the agreement.

-
%
>; ÏK
l CASE NO. 11961, 2006 ARBITRAL AWARDS
I Art 1116. Fraud is a cause of nullity of the agreement when the stratagems
practised by one of the parties are such, that it is evident that without such
stratagems the other party would not have contracted.
It is not to be presumed, but must be proved.’ [Translation by the
tribunal.]
[26] “The facts on which Claimant bases its claim may be summarized as
follows:
(a) an audit made by the Defendant Group one year before the SPA (the first
audit) identified the risk of money laundering attached to the business as
conducted by the Luxembourg company in France and set forth recom¬
mendations for the avoidance of such risk; neither the first audit nor the
information therein contained were disclosed to Claimant during the sale
process;
(b) a report of the same year by the Bank mentioned that payments were made
to the Bank’s postal cheque account under conditions which were not
compliant with the Bank’s requirements to identify money-laundering
practices; although known by the Defendant Group’s senior executives,
neither this report (the Bank report) nor the information therein contained
were disclosed to Claimant during the sale process;
(c) a further audit made by the Defendant Group (the second audit) contains
criticism of the Luxembourg company’s management and sales force for
not having discontinued certain business practices in France which were
not compliant with the Defendant Group’s recommendations nor with
applicable legislation on money laundering and tax evasion; neither
the second audit nor the information therein contained were disclosed
to Claimant during the sale process;
(d) the Defendant Group has refrained from informing Claimant of the enqui¬
ries conducted by the French Brigade de Recherches et d’investigations
Financières (BRIF) [Financial Research and Investigation-Brigade] or of
the TRACFIN ( Traitement des Renseignements et de l’Action contre les
Circuits Financiers Clandestins) [Treatment of Information and Action
Against Illegal Financial Circuits] investigation which began before the
conclusion of the SPA; these investigations, which dealt with anonymous
cash deposits made in France with the Bank were not disclosed to Claimant
during the sale process;
(e) the Defendant Group did not inform Claimant of the deficiencies of the
Luxembourg company’s management and sales force, which resulted in
exposing the Luxembourg company to legal risks; and

(f) the Defendant Group misrepresented to Claimant its actual reason for
disposing of the Luxembourg company.
[27] “The three elements of dol under the applicable law are: ‘a false repre¬
sentation, omission of fact, half truth or manoeuvre [stratagem] by the seller;
concerning facts material to the buyer’s decision to conclude a contract or the
terms on which to conclude a contract; which was motivated by wrongful
intent . . . Based on the facts summarized above, Claimant contends that the
‘objective mechanisms’ of dol - affirmative misrepresentations, non-disclosure
of material facts and fraudulent manoeuvres - are met in this case. The misre¬
presentations and the failure to disclose concern facts that are material to the
purchaser’s decision to enter into the agreement or to agree on the terms of the
sale.
[28] “The facts summarized above are convincing evidence that the Defendant
Group had the intention to deceive or to mislead Claimant by its affirmative
misrepresentations or its failure to disclose material facts. Claimant analyzes the
first audit, the Bank report and the second audit and finds in these reports
evidence of facts which were material with respect to its decision to purchase
the Luxembourg company. Claimant also argues that the Defendant Group’s
senior management and sales team withheld information concerning the BRIF
Demands ‘to conceal the investigations of the Luxembourg company’s business
and exposure to legal risks’.
[29] “With respect to the Luxembourg company’s management and sales
network, Claimant argues that the Defendant Group withheld and misrepre¬
sented the situation in order to conceal the deficiencies of the Luxembourg
company’s management and sales network, and the compliance dysfunctions.
[30] “Claimant also asserts that further evidence of dol is that the Defendant
Group misrepresented its true reasons for selling the Luxembourg company: the
reason why the Defendant Group sold the Luxembourg company was not the
existence of ‘geographic overlap’ with other subsidiaries of the Defendant
Group; the true reason is that the Defendant Group had concerns about legal
and other risks attached to the Luxembourg company and did not disclose them
to Claimant. The Defendant Group’s explanations of its reasons to part with the
Luxembourg company were part of the manoeuvres which constitute dol”
[31] “Having recalled the ‘three-part test’ under Art. 1116 of the Luxembourg
Civil Code - i.e., ‘a stratagem practised by one of the parties’, ‘without which it is
evident that the other party would not have contracted’, animated by a subjective
intention to deceive - Defendants state that dol has to be proven by the Claimant.

I v:n

According to Defendants, ‘a failure to disclose information will constitute a
manoeuvre only if it amounts to a deception’. For a manoeuvre to exist,
‘... the seller must (a) know the information; (b) realise that the buyer does
not know the information and will not discover it; (c) realise that, given its
importance, the buyer would not contract if it was aware of the informa¬
tion; and (d) deliberately withhold it’.
[32] “Defendants dispute Claimant’s definition of the second element of

dol under the applicable law by stating that material information ‘is infor¬
mation that would influence the purchaser’s decision as to whether to enter
into the agreement or the terms on which the Contract was concluded’:
Defendants’ contention is that it must be evident that the buyer would not
have entered into the contract, but for the manoeuvre: the withholding of
:r. information or misrepresentation ought to be determinant of the buyer’s
consent.
[33] “With respect to the third element of dol, being the intention to deceive,
Defendants object to Claimant’s position which is to infer the subjective element
of deceit where misrepresentations and/or omissions of material information is
proven. Defendants state that the Tribunal ought to be slow in finding an inten¬
tion to deceive when the manoeuvre is said to consist of an omission (silence).
[34] “Defendants reject Claimant’s argument to the effect that the burden of
proof ought to be reversed and that it is up to Defendants to prove that they fulfil
their obligations to disclose in good faith. In support of their position,
Defendants refer inter alia to the following elements.
(a) Claimant has failed to prove that it was induced to enter into the contract
by an erreur déterminante [determinative mistake]:
- Claimant, an experienced buyer, knew that the Luxembourg company’s
business was an offshore business and that tax evasion was part of it, and
was aware that anti money-laundering legislation would increase the
risk for FPS insurance providers, particularly in France;
- there is nothing in the three Audit Reports that would have come as a
surprise to Claimant;
- no information contained in the first audit was ‘determinant of
Claimant’s consent . . . , not disclosed elsewhere, already known to
Claimant and its advisers, or able to be discovered by obvious enqui¬
ries that Claimant could make if it wanted to’;
- the Bank report concerned the Bank and its control obligations under
French law; the Defendant Group shared the Bank’s concern and, when
informed of such concern, the Luxembourg company immediately took
steps to put an end to the brokers’ criticized conduct;

— the second audit was not reliable and was criticized by the Defendant
Group senior management; the conclusions of the audit were dismissed
as non-reliable;
- the TRACFIN and customs inquiries were made about deposits at the
Bank; there were no further enquiries by TRACFIN after that;
- contrary to Claimant’s contentions, the two BRIF’s Demandes de
renseignements [Demands for information] are not evidence that a
criminal investigation for money laundering had been launched; these
Demandes are part of normal police inquiries in relation with information
received from the postal organization; the Defendant Group or the Lux¬
embourg company had no reason to think that the latter had committed a
crime and that the BRIF’s Demands would result in criminal proceedings;
(b) Defendants did not commit manoeuvres nor are they guilty of réticence
dolosive [fraudulent reticence]:
- the fact that the Audit Reports were not included in the materials made
available to prospective buyers is not evidence of deceit: nothing pre¬
vented Claimant from insisting that copies of all Audit Reports be
communicated;
- as Defendants did not consider that the BRIF Demands constituted a
‘criminal law threat to the Luxembourg company’, they did not think
that there was anything to disclose in this respect; this behaviour is free
of manoeuvres or réticences;
—the Defendant Group did not conceal ‘misconduct by the Luxembourg
company’s management and sales network’: there was no evidence that
the Luxembourg company’s management was aware of the transactions
mentioned in the BRIF Demands;
—
the Defendant Group did not mislead Claimant as to its reasons for
selling the Luxembourg company: the Defendant Group did not want
to pursue offshore activities; Claimant’s argument based on the reasons
to sell the Luxembourg company is irrelevant;
(c) Claimant has failed to prove that it was induced to enter into the Contract
by deceit; the Defendant Group rejects Claimant’s theory of a conspiracy
between ail persons who were active in the sale process.”
3. Tribunal's Holding
[35] “It is a matter of agreement between the Parties that the legal provisions
on which the claim of dol is based are those set forth in Arts. 1109,1110 and 1116
of the Luxembourg Civil Code.

- •.v,„,;„v?7r
-
[36] “A preliminary question arises: in applying these provisions and passing
on the vice de consentement [vitiated consent] issue, is the Tribunal to be guided
by French (possibly Belgian) case law? Having carefully considered the expert
opinions expressed in this respect, the Tribunal came to the conclusion that it
does not need to make a determination on this question in abstracto: if and when
the Tribunal’s judgment on a given issue has to rely on case law, the Tribunal
shall examine whether the solution derived from French or Belgian case law is
accepted in Luxembourg.
[37] “The task of the Tribunal in the context of the fraud claim asserted by
Claimant is to determine whether, during the sale process as already described,
t. the Defendant Group made misrepresentations or withheld information on
material facts, with the intention of leading Claimant to enter into the SPA.
[38] “The Tribunal first notes that the sale process itself (open bid), as con¬
■i; ceived by the Defendant Group, was an adequate process for a company such as
the Luxembourg company and that the quantity of documents and information
made available was also in line with the standards of Merger 8c Acquisition
transactions.
[39] “As a matter of law, the Parties have expressed different opinions as to the
extent of the Seller’s obligation to inform the prospective buyer of the affairs of
the company the shares of which are offered for sale. Claimant’s position is that
the seller has an obligadon to provide information to the buyer in good faith,
even though such information is publicly available, while the Defendant Group
argues that there exists no such obligation for the seller to act as advisor to the
buyer.
[40] “It appears from the authorities submitted to the Tribunal that informa¬
tion which is a matter of public knowledge does not have to be identified by the
seller to the buyer and that this is especially so when the Parties in presence are
both professionals, as in the instant case. In this respect, the Tribunal notes that it
was common knowledge at the relevant time that the conduct, from
Luxembourg, of FPS activities in France and Belgium in the insurance sector
attracted monies which could be the proceed of tax evasion; although such
activities were perfectly legal under Luxembourg law, they could - and did -
at the relevant time present certain risks in the countries of residence of the
insurance subscribers. It cannot be seriously argued that an insurance company
such as Claimant, having decided to enter into the FPS activities from
Luxembourg, did not take into account the general risks (sometimes referred
to hereafter as the ‘industry risks’ or the ‘general risks’) associated with tax
evasion and/or money laundering in the context of offshore activities. It is
common ground between the Parties that in the months preceding the execution
of the SPA, Claimant was assisted by legal advisors. Claimant cannot - and does
1 Reprinted from the Yearbook Commercial 'Arbitration 149

not - contend that it was ignorant of the ‘industry risks’ and of the possible
consequences if such risks were to materialize.
[41] "It is settled law that the buyer has to exercise a reasonable degree of
diligence, failing which the error which it claims to have been committed when
entering into the purchase agreement could not be blamed on the seller. In this
respect, the Tribunal recalls that Claimant did ask to consult all audit reports but
has found no evidence that, being informed that there were no audit reports,
Claimant insisted that these documents be communicated. . . . Similarly,
although Claimant asked to receive documents relating to the Luxembourg
company’s compliance in general and did not receive any, Claimant did not
pursue its quest either (two other prospective buyers did ask for the audit
reports but, apparently, did not receive them). The notes taken during the pre¬
sentations made in Luxembourg and in Paris do not mention that Claimant or its
advisors raised a question concerning the audit reports.
[42] “The Tribunal has now to determine whether, in addition to the risks
inherent to the conduct of FPS activities in the context which has been summa¬
rized above, there were risks specific to the Luxembourg company which were
known to the Defendant Group, which ought to have been disclosed and which
were intentionally not disclosed during the sale process with the aim of leading
Claimant to enter into the SPA. To do so, the Tribunal has to review the docu¬
ments which were not disclosed and the information contained in such docu¬
ments, and determine whether, under the applicable law, these documents and
information should have been disclosed to Claimant.
[43] “Considering the content of the first audit report, the Tribunal is not
convinced that the Report or the information therein contained ought to have
been disclosed. As for the comments expressed in the Report on the weakness of
the offshore market and the risk of legislation in certain countries (which com¬
ments deal with ‘industry risks’ in general), it appears evident [sic]; as to the
identification of certain practices, it appears from the report that these practices
had been discontinued: being informed of the Defendant Group’s and of Bank’s
concern, the Luxembourg company reacted by putting an end thereto, and it was
noted by the Bank that the Luxembourg company had understood the Bank’s
protest and had acted accordingly with respect to the practices at issue. In this
context, the Tribunal notes that the procedures applicable within the
Luxembourg company with respect to the compliance with French legislation
were made available and that, therefore, prospective buyers had the possibility
to figure out precisely the Luxembourg company’s degree of compliance with
the applicable legislation and to put specific questions to the Defendant Group
and/or the Luxembourg company.
[44] “The Tribunal expresses a similar opinion with respect to the Bank’s
report. As already mentioned, the Report focusses on a certain bank practice

i

and concludes that actions had been taken to put an end to that practice. Another
practice had already been dealt with by the Luxembourg company's manage¬
ment and, under the circumstances, the Tribunal accepts the Defendant Group’s
position that the Report or the information contained therein did not have to
be disclosed.
[45] “The Tribunal has the greatest difficulties in following the Defendant
Group's argument according to which the second audit, being, in the
Defendant Group’s view, defective procedurally and as to statements it contains,
did not have to be taken into account. If it can be accepted that the document
itself - the second audit - did not have to be part of the materials made available
to prospective buyers (although Claimant, as the other bidders, had signed a
Confidentiality Letter and as the document could have been marked 'non copi-
able’), the same cannot be said of the factual information contained in the report.
Whether the report is defective - as alleged by the Defendant Group - it remains
£ that it contained certain information on aspects of the activities conducted by
the Luxembourg company in France relating to compliance matters. The risks
which the report identified could potentially affect the Luxembourg company
and its French business and, as such, constitute facts material from the pers¬
pective of the prospective purchaser.
[46] “Claimant contends that the Defendant Group fraudulently refrained
from disclosing the two Demands addressed by BRIF to the Bank, and from
informing it of the existence and nature of such Demands. Such information, it is
alleged, was so serious that it is evident that, had Claimant known of the exis¬
tence of these Demands, it would not have entered into the SPA. The Defendant
Group’s position is that, in these Demands, BRIF was only seeking information
following a police report on an incident which occurred in France at a post
office; this does not constitute a step of a criminal proceedings; it is a fact
that concerned essentially the Bank and, possibly, the Luxembourg company’s
clients and/or independent brokers, as the subject of the enquiry was the depos¬
its made to the Bank’s account.
[47] “There is little doubt in the Tribunal’s mind that these preliminary inqui¬
ries concerned the Luxembourg company and certain clients of the Luxembourg
company. . .. The Tribunal’s view is that, at the relevant time, it was not certain
that Demands would be followed by indictments ( mises en examen) of the
Luxembourg company’s manager, the Luxembourg company’s brokers and/
or the Defendant Group management; as mentioned above, the Defendant
Group considered that the practice at issue had been discontinued and thought
that the Luxembourg company was in compliance with French regulations
in general and, more specifically, with money-laundering legislation. It is a
fact that, since the second BRIF Demand and until the date of the sale of
the Luxembourg company, the Defendant Group, the Bank and/or the

t
Luxembourg company received no news whatsoever indicating that criminal

proceedings were under way: according to the decision of the Paris Court of
Appeal, the Luxembourg company was only indicted (mise en examen) at a later
date.
[48] “At the time the SPA was negotiated, it could be considered that the
Bank’s warning of a ‘scheme’ involving the ‘parties versantes’ [customers] had
been acted upon and that the ‘scheme’ had ceased to exist. Nevertheless, there
remained a risk that past practices could give rise to compliance difficulties and
the prospective buyer was entitled to be informed of that risk. The Arbitral
Tribunal notes, in this respect, that the Defendant Group’s senior manager in
charge of the sale made it very clear that there was an obvious need to inform a
potential purchaser about a police investigation, when he testified that:
'.... If an operation is involved in a criminal investigation, quite obviously
this will be part and parcel of the material elements that should be discussed
with a possible buyer, quite obviously. ... As a buyer you want to know if
the company is involved in a criminal investigation; if it is, the buyer shall be
told and if I were the buyer, I would want to be told. And if I were a seller, I
would say that.’
[49] “As already noted, the second BRIF Demand was sent by the Bank to the
Defendant Group’s Central Audit Department under cover of a memorandum
bearing the indication‘très confidentiel’ [very confidential]: this shows that the
Demand was taken seriously by the Bank and not simply as routine
matter. ... As to the TRACFIN inquiry, it is the Tribunal’s view that it did
not concern matters different from those coming under the BRIF preliminary
investigation.
[50] “The Customs Administration enquiry, mentioned by Claimant among
the ‘non-disclosed information’, appears, from the record, to date back to some
years earlier, to be unrelated to the Luxembourg company and to have had no
follow-up activities.
[51] “The Defendant Group chose an open and standard sale process for the
disposal of the Luxembourg company. However, the Arbitral Tribunal notes
that, although the Defendant Group states that the reports would be made
available to anyone who asked for them, the Defendant Group does not deny
that the two bidders who discovered the first audit report and asked for it were
not provided with it. A Defendant Group’s witness testified that ‘the first audit
report as well as the second audit report was available for the buyers but was not
given because it was not requested - sorry, it was requested by one, but they did
not ask to see it physically because they withdrew prior to that - but both
documents were treated in the same manner’.

!

[52] “To succeed in its dol claim, Claimant has to prove that the Defendant
Group’s attitude, with respect to the information identified above, constitutes
willful acts or omissions intended to lead Claimant to enter into the SPA.
Nevertheless, taking into account all these aspects of the situation of the
Defendant Group and/or the Luxembourg company prevailing during the rel¬
evant period, the Tribunal finds no conclusive evidence that the Defendant
Group had such intention.
[53] “The Defendant Group’s behaviour before and after the closing of the
SPA is difficult to reconcile with the intention to deceive: the Minutes of a
meeting of the Board of Directors of the Luxembourg company dated one
year before the SPA were made available to prospective buyers and were a
clear trail to the first audit report (these Minutes contain three references to
the first audit); these reports and the correspondence between the Bank, the
Defendant Group and the Luxembourg company’s management were left in
the files of the Luxembourg company after the closing of the SPA. There
was, however, no trail with respect to the Bank report or the second audit.
[54] “Claimant has alleged that the Defendant Group has not been
‘straightforward’ in stating the reasons for disposing of the Luxembourg
company. There are several documents on the record showing that a manager
of the Defendant Group received recommendations pointing to (a) a disposal of
the Luxembourg company and (ii) a disposal outside the Defendant Group. The
second audit contains a similar recommendation, based on the risks which
potentially affected the Luxembourg company. It was also reported that the
Defendant Group was not keen on pursuing offshore activities. . . .
[55] “The Tribunal’s view is that under all likelihood, the elements recalled in
this paragraph have contributed to the Defendant Group’s decision to sell the
Luxembourg company; consequently, the Tribunal has difficulty in considering
: that, in representing to Claimant that the disposal of the Luxembourg company

was part of a reorganization after a merger and the overlap of several subsidiaries,
the Defendant Group meant to deceive Claimant and to lead it to enter into
the SPA.
[56] “The Tribunal has given careful consideration to the material relating
to the presentations made in Luxembourg by the Luxembourg company’s
management and in Paris by the Defendant Group’s management and has not
found that the persons involved on behalf of the Luxembourg company or the
Defendant Group were part of the conspiracy (the term is used by the Defendant
Group) aimed at leading Claimant to enter into the SPA. The same finding
applies to the other individuals who had been informed of the three Audit
Reports and of the BRIF Demands.
[57] “The Tribunal does not find that the senior executives of the Luxembourg
b
' company were offered money in order to persuade them not to expose the true
I
Ii Reprinted from the Yearbook Commercial- Arbitration 153
I
situation of the Luxembourg company. It is not unusual in acquisitions such as

the purchase of the Luxembourg company that senior executives be rewarded
for services rendered to the company over the years, when these services have
contributed to the value of the company sold. Further, the alleged participation
of the Luxembourg company’s senior executives in the deceit is difficult to
reconcile with the post-acquisition events: the executives in question were
asked by Claimant to pursue their activities at the Luxembourg company and
they accepted to continue to serve. . . .
[58] “It appears from an Operational Review subsequently prepared by an
advisory company that during the period following the sale there were still
some dysfunctions from the tax evasion/anti-money-laundering point of view,
although the advisory company concluded that ‘legal requirements are generally
met by the Luxembourg company’s procedures’; such weaknesses cannot have
been unknown to Claimant, were it only through their representatives on the
Luxembourg company’s board; for Claimant to tolerate such a situation know¬
ingly and to keep the senior managers in place also contradicts the claim that senior
managers would have conspired with the Defendant Group to deceive Claimant.
[59] "In conclusion, the Tribunal decides that Claimant’s dol cannot be
accepted on the ground that it has not been proven that the Defendant
Group’s acts and omissions were motivated by an intent to deceive Claimant.
Having come to that conclusion, the Tribunal does not have to decide whether
the other conditions of dol are met.”
VI. SPA IS INVALID BECAUSE OF ERREUR (MISTAKE) (NO)

[60] “Claimant claims that its consent to the SPA was based on a material
mistake {erreur) in the meaning of Arts. 1109 and 1110 of the Luxembourg
Civil Code. It is worth recalling that these provisions read as follows:
‘Art. 1109. There can be no valid consent if such consent has been given
through mistake, or has been extorted through violence or surreptitiously
obtained by fraud.
Art. 1110. Mistake is not a cause for annulling the agreement except when it
occurs in the very substance [of the agreement].
It is not a cause for nullity when it occurs only in the person with whom
it is intended to contract, unless the consideration of such person were the
principal cause of the agreement.’ [Translation by the Tribunal.]
[61] “It is settled law that three conditions must be met in order for a claim
based on erreur to succeed: (i) there must be an erreur pertaining to a material

fact, (ii) the material fact about which the erreur is made must have been déter¬
minant of the mistaken party’s consent; and (iii) the erreur must be excusable.
[62] “The Parties also agree that the remedies that a mistaken buyer may seek
under the legal provisions quoted above are: the annulment of the agreement,
alternatively both the annulment of the agreement and damages, or, alternatively,
damages.
[63] “It is common ground that Claimant’s case rests on an erreur sur la sub¬
stance (as opposed to an erreur sur la personne or an erreur obstacle). With
respect to this first condition, the Tribunal has to deal with the following
issue: in a transaction providing for the transfer of shares of a company, do
the obligations of the seller in matters of disclosure concern the shares sold
or the business of the company sold? It has been held in the past by jurispru¬
dence, French and Belgian, that only the defects affecting the shares themselves
were to be taken into account in the resolution of a claim based on erreur.
z. [64] “As to the case law to which the Tribunal is referred for the determination
of this issue, both Parties rely essentially on standards derived from the French
jurisprudence, to a lesser extent from the Belgian jurisprudence, as the
Luxembourg case law on the annulment of agreements providing for the sale
of shares is relatively scarce.
[65] “Claimant advances a ‘realistic analysis’ of the doctrine of erreur when
applied to a sale of shares, pursuant to which the annulment of a sale of shares
agreement can be based on the fact that the acquired company lacks the ability to
achieve its corporate purpose, to conduct its economic activity and to make
profits. In support of its position, Claimant cites various French decisions,
being:
- Quille v. Gasquet (Supreme Court (Commercial), 1 October 1991, JCP 1992,
II, 21860, comments by A. Viandier): the share purchase agreement was
annulled on the ground that the company was deprived substantially of all
its assets a few days before the sale of the shares;
- Gerad v. Martin-Malburet (Supreme Court (Civil), 25 May 1972, JCP 1972,
II, 17249, comments by J. Ghestin): the contract for the sale of shares was
\ annulled on the ground of the impossibility for the company to expand the
hospital’s operations and of the uncertainties concerning the pursuit of
current operations;
- Lavipharm International v. Rousset et al. (Paris Court of Appeal, 12 October
2001, Bui. Joly): the sale of the shares of a pharmaceutical company was
annulled when it was discovered that a significant division of the company
was fraudulently represented to the purchaser.
l Claimant also cites a decision of the Luxembourg Court of Appeal (Commercial),
rendered on 9 February 2000 {Banque Nationale Paris Norge A/S v. Bikuben)

l:
which invalidated a loan agreement on the ground of an error affecting the sub¬
stance of the transaction.
[66] "Defendants argue that only certain kinds of erreur can give rise to the
annulment of a share purchase agreement: (a) an erreur concerning the cor¬
porate rights attached to the shares sold, or (b) an erreur concerning the ability
of the company of which the shares are sold to achieve its corporate purpose or to
maintain an economic activity; Defendants add that these circumstances must
exist at the time of the sale. Defendants identify several kinds of erreur that do
not give rise to an annulment: (a) the erreur about the value of the shares, (b) the
erreur concerning the reasons behind the sale or (c) the erreur regarding the
certainty/uncertainty of the future financial condition of the company.
[67] "In support of its position, Defendants cite two decisions of the French
Supreme Court which adopt and confirm a broader interpretation of Arts. 1109
and 1110 (Supreme Court (Commercial), 7 February 1995, D. 1996, comments
R. Blasselle; Paris Court of Appeal, 26 September 1997). On that basis,
Defendants write:
‘Since the early 1990s, French courts have accepted that an “ erreur sur les
qualités substantielles” can also include cases where the purchaser was mis¬
takenly unaware that the company was no longer in a position to achieve its
corporate purpose (“ réaliser son objet social”) or to maintain an economic
activity {“avoir une activité économique").’
[68] “The Tribunal shall now review the Parties’ respective contentions relat¬
ing to the material mistake alleged by Claimant and affecting the business of the
Luxembourg company.”
[69]“Claimant’s claim has been adequately summarized in its Post-Hearing

Memorial as follows:
'. .. . Claimant believed that the Luxembourg company was a successful

FPS provider with excellent management, no material legal risks and good
commercial prospects, which could operate in major European markets. In
reality, however, the Luxembourg company had seriously deficient man¬
agement and grave legal exposure, and was unable either to conduct pan-
European operations or carry on a commercially viable business. Moreover,
Claimant was mistaken about the Luxembourg company’s suitability as the
central hub of its contemplated European operations, which was the reason
that Claimant acquired the company.’
156 Reprinted from die Yearbook Commercial Arbitration

-_‘_ÿÿ--:-"i- -.--- 7- - i :•
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■i
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7

[70] “Claimant argues that due to the Defendant Group’s misrepresentations
and failures to disclose significant documents and information, its acquisition of
the Luxembourg company was based on a material mistake as to the nature and
the value of the Luxembourg company; according to Claimant, (a) the
Luxembourg company is no longer a commercially viable company (‘the
Luxembourg company is losing money when it writes new business’) and
(b) the Luxembourg company is unsuitable as Claimant’s European hub.
[71] “Claimant states that, as a result of the criminal investigations, the
Luxembourg company became commercially unviable. Claimant admits that,
following the managers being arrested (the arrests), and for the time being, the
company continues its operations and accepts new business but that, over time,
4 new business will no longer be profitable, making it pointless for the
Luxembourg company to pursue it. Claimant does not elaborate on the allega¬
.7, tion that the Luxembourg company is not suitable to serve as its European hub,
which, it is claimed, was the ‘basic corporate purpose for which Claimant
acquired the company’.”
[72] “Applying the standards set out by the French Supreme Court in 1995
(see supra), i.e., l’impossibilité manifeste de réaliser son objet social, de poursuivre
me activité économique et donc d’avoir une rentabilité, Defendants essentially
focus on two aspects: (a) the evolution of the Luxembourg company business
after the sale, and (b) the elements that Claimant does not consider to be the
cause of its material mistake.
[73] “With respect to the evolution of the Luxembourg company business
after the closing of the transaction, Defendants identify various elements,
such as: after the sale, the Luxembourg company enjoyed the two most
profitable years since its establishment - the Luxembourg company’s profits
three years later were greater than in the year of the SPA; the Luxembourg
company has continued to recruit personnel; the Luxembourg company
is backed by prestigious funds; the Luxembourg company has added new
products to its portfolio after the arrests. It is Defendants’ contention that
the criminal investigations have not had any impact on the Luxembourg
company’s ability to pursue its FPS activities from Luxembourg; they con¬
1 cede that there has been a fall in the Luxembourg company’s business
after the sale, but point out that this is due to circumstances unrelated
to the arrests; the Luxembourg company is still a profitable company.
Defendants further point out, in relation to certain case law which is
1
: invoked by Claimant, that:
:
:
I
I Reprinted from the Yearbook Commercial- Arbitration 157
5
(a) there is no evidence that the Luxembourg company cannot carry out today
the same business as it did before the sale to Claimant; Defendants affirm
that the Luxembourg company does carry out the same business;
(b) there is no allegation that the Luxembourg company’s assets were drained
out of the Luxembourg company before the sale; Defendants affirm that
this was not the case;
(c) there is no allegation that Claimant did not acquire the shareholders’ rights
that it was expected to acquire; these rights were duly transferred.
[74] “On the basis of the foregoing arguments, Defendants conclude that
Claimants did not make a material erreur as to the substance of the object matter
of the SPA, whether this object is to be construed as the Luxembourg company’s
shares or the Luxembourg company’s business. Alternatively, Defendants argue
that if Claimant did make an erreur, it could only be an erreur as to the value of
the Luxembourg company, which erreur cannot be remedied.”
3. The Tribunal's Holding
[75] “The Tribunal adopts the broader interpretation of the notion of erreur
which now prevails under French law - i.e., an erreur pertaining to the under¬
lying business and not to the shares - as the position in Luxembourg law is no
different; the Parties do not seem to be in disagreement as to the present status of
the law in this respect.
[76] “In its review of the situation of the Luxembourg company, the Tribunal
notes that Claimant operated the Luxembourg company during two years after
the sale without encountering any major problems: the Luxembourg company’s
operations were profitable, enabling its shareholders to distribute a dividend
two years after the year of the SPA. There is evidence that, during that period
and thereafter, the nature of the activities of the Luxembourg company were
essentially similar to those conducted before the sale. After the arrests, the
Luxembourg company continued to develop its clientele - except for France,
where it appears that the activities and the sales force were reduced. New pro¬
ducts were added. The number of employees was increased. Evidence as to the
status of the Luxembourg company in recent years can be derived, i. a. from its
Annual Reports for the two years following the arrests.”
[77] The Arbitral Tribunal quoted from the Annual Reports and concluded:
“Considering the above, it is difficult to adopt the view that the Luxembourg
company, as a result of the arrests, has ceased to be a viable company: the
Tribunal shall not adopt this view. The fact that the profit for the fiscal year
of the year of the arrests is lower than for the fiscal year preceding it and that the
fiscal year following it ended with a loss, for a variety of reasons, does not lead

;!

the Tribunal to change its view. The Annual Report of the year of the arrests
shows that, during that year, both the number of clients and the number of
contracts of the Luxembourg company grew.
[78] “One of Claimant’s arguments is that, due to the Defendant Group’s
misrepresentations and deficient disclosures, and the resulting arrests, its project
to make the Luxembourg company the hub of its operations in Europe is no
longer possible.
[79] “If, in the wake of the arrests, Claimant may have had reasons to entertain
this concern, it does not result from the reports quoted above that this project
could not have been achieved. No convincing evidence has been submitted to the
Tribunal in support of Claimant’s argument; on the contrary, prior to the
l,
arrests, Claimant had acquired an investment company and it was posted on
..f.
the Luxembourg company’s website that together with the Luxembourg
■r.
company it will provide an excellent European base. . . .
'7
[80] “Therefore, the claims based on erreur fail for lack of an erreur sur la
substance of the Luxembourg company. In view of this finding, the two other
conditions of erreur (was the erreur déterminante and excusable?) do not have to
be discussed.”
VII. PRE-CONTRACTUAL LIABILITY - CULPA

IN CONTRAHENDO (YES)
[81] “Claimant contends that, during the sale process, Defendants committed
a culpa in contrahendo by breaching their duty to disclose material information.
The claim is based on Arts. 1382 and 1383 of the Luxembourg Civil Code.
Defendants reject this cause of action.
[82] “As discussed above, the Tribunal did not accept Claimant’s claim based
on dol for the reason that there was no evidence that, during the sale process,
Defendants’ intent had been to fraudulently induce Claimant to enter into the
SPA. The Tribunal did not decide whether or not the other conditions of a dol
were met.
[83] “As discussed above, the Tribunal did not accept Claimant’s claim based
on erreur for the reasons that an erreur sur la substance of the Luxembourg
company was not proven. The Tribunal did not pass on to whether or not
t the other conditions of an erreur were met.
[84] “The Tribunal shall now review the alternative cause of action asserted by
Claimant and the resulting claim for damages.”
[85] “Claimant argues that, under Luxembourg law, contracting parties have a
duty to act in good faith during their pre-contractual negotiations and the
I
I
Reprinted from the Yearbook Commercial" Arbitration 159
I
performance of an agreement. Such duty gives rise to an obligation for the seller
to spontaneously disclose to the buyer material information about the object of
the sale. The duty extends to all information that the seller knows or should-
-
have known regardless of the buyer’s subjective knowledge as to the object of
the sale. The duty might require that the seller collect information so as to make
sure all material information is disclosed to the buyer.
[86] “A breach of the duty to disclose during the pre-contractual negotiations
is a ‘fault in contracting’, or a culpa in contrahendo. It gives rise to an autono¬
mous claim based on Arts. 1382 and 1383 of the Luxembourg Civil Code, that is
to an extra-contractual liability. Such claim does not require showing a wrongful
intent: a seller who negligently fails to disclose material information to a buyer
commits a culpa in contrahendo. The standard of behaviour used to assess
whether such negligence has been committed is that of a reasonable person
placed in the same circumstances.
[87] “Claimant further states that a seller’s duty to disclose is not excused by
the buyer’s obligation to inform itself, specifically when the information to be
disclosed is in the seller’s sole possession and is not accessible to the buyer by
means other than through the seller, or when the information could be disclosed
readily by the seller regardless of its independent accessibility to the buyer.
Claimant adds that the buyer’s obligation to inform itself extends only to infor¬
mation that is available to it, and that Luxembourg law does not impose on the
buyer an obligation to discover information that it has no independent way of
finding.
[88] “Turning to the facts, Claimant argues that any diligent person placed in
the same conditions as Defendants were during the sale process of the
Luxembourg company shares, would have disclosed to the potential buyers
the following information: the three Audit Reports, and the information
contained therein; the BRIF Demands, and the information contained therein;
the information collected prior to the sale concerning the Luxembourg com¬
pany’s management and sales force, and Defendants’ real reasons for selling the
Luxembourg company. The non-disclosure of the above-mentioned documents
and information constitutes a breach of Defendants’ duty to act in good faith and
is evidence of Defendants’ culpa in contrahendo.
[89] “With respect to the three Audit Reports, Claimant holds that the docu¬
ments and the information therein contained constitute, objectively, material
information about the Luxembourg company. The record shows that
Defendants were aware - or should have been aware - of the objective materi¬
ality of this information. Claimant recalls that, during the sale process, it did
request production of all audit reports but that Defendants failed to produce
them. Specifically, Claimant argues that Defendants are not discharged of their
duty to disclose by the mere fact that they have included in the materials made

ü££.¿
a
available prospective buyers the minutes of the meeting of the board of
to
directors of the Luxembourg company which contain references to the first
audit: such references were brief and innocuous, so that its review would
have required burdensome investigation which potential buyers are not
requested to conduct under Luxembourg law.
[90] “Claimant adds the following elements:
(a) on the face of the information provided to it, it was entitled to expect that
Defendants would disclose all material information regarding the Luxem¬
bourg company’s business;
(b) two potential bidders noticed the reference to the first audit, asked for the
report, but did not receive it;
(c) Defendants cannot be excused on the ground that Claimant should itself
have sought information regarding the general risks in the FPS industry, as
this was not the subject matter of the Audit Reports: the three reports reveal
specific practices, compliance dysfunctions and management deficiencies in
the Luxembourg company’s French business, as opposed to the Luxem¬
bourg company’s general status as an FPS company;
(d) With respect to the BRIF Demands, it is Claimant’s case that Defendants
knew or should have known that BRIF was conducting an investigation of
the Luxembourg company’s business that was highly material to potential
buyers; similarly, Defendants should have informed its sales team of the
existence of the BRIF Demands in order to allow it to fulfill its duty to
disclose; the fact that Defendants’ sale team was unaware of the Demands
does not excuse Defendants’ lack of disclosure. It is common ground that
the BRIF Demands and the information therein contained could not have
been obtained by Claimant through any independent means, i.e., indepen¬
dently from the Defendant Group, the Bank or the Luxembourg company;
(e) Turning to the Luxembourg company’s management and sales network,
Claimant argues that Defendants’ finding regarding the manner in which
compliance matters were dealt with were material to potential buyers and
should have been disclosed. This information was particularly important to
Claimant in view of its plans to use the Luxembourg company as its
European hub. Claimant sought information about the Luxembourg com¬
pany’s management and sales network by reviewing the documents
f provided to it by Defendants, but it had no way of independently obtaining
information as to the quality of the management and of the sales network;
(f) Finally, Defendants failed to disclose the true reasons for disposing of the
Luxembourg company, such reasons being that the company presented
reputational risks, compliance dysfunctions and management deficiencies;
Ii all these reasons were material to potential buyers; Defendants did not
!K:
discharge their duty in revealing another reason for disposing of the Lux¬
embourg company;
(g) Finally, Claimant states that it did not need to obtain strong representations
and warranties in the SPA as it had conducted a thorough due diligence and
as it relied on the fact that the Defendant Group was worthy of trust.”
[91] “Defendants qualify Claimant’s statements on the culpa in contrahendo

doctrine:
(a) the doctrine equally applies to a buyer’s negligence in protecting its own
interests and to a seller’s failure to disclose material information;
(b) the rule is that the buyer has an obligation to inform itself: the seller’s duty
to disclose information to the buyer is an exception to that rule;
(c) the scope of the seller’s duty to disclose information is comprised in the
scope of the buyer’s duty to inform itself;
(d) a professional buyer or a buyer who is advised by professionals will be held
to a higher standard concerning its duty to inform itself;
(e) limited representations and warranties reinforce the buyer’s obligation to
inform itself and lessen the seller’s obligation to disclose;
(f) a buyer’s duty to inform itself includes the duty to request information
from the seller;
(g) a seller’s duty to disclose applies when it is either impossible or difficult for
the buyer to access the information;
(h) a seller has to disclose only what it knows - or ought to know; and
(i) a seller is not required to disclose information when it is not entitled to
divulge it.
[92] “Defendants discuss the issue of the causal link that must exist between a
culpa contrahendo and the victim’s damages; Luxembourg law adopts the
in
critérium of the causalité adéquate, a theory which aims at distinguishing
between different operative causes of damages in order to retain the only
cause which, in law, is deemed adequate to have caused the damage; this theory
is different from the theory of équivalence des conditions which allows retaining
causes that have contributed to the damage, albeit indirectly. Defendants con¬
sider that only damages caused directly by a negligent failure to disclose material
information can give rise to relief, as opposed to damages resulting from a
different cause, such as the voluntary assumption of risks.

■i
- CASE NO. 11961, 2006 ARBITRAL AWARDS

[93] “Defendants point out that their liability with respect to the completeness
or accuracy of information provided to Claimant has been limited under the
SPA. Considering these contractual limitations, Claimant cannot seek to engage
Defendants’ extra-contractual liability on subject matters covered by the limita¬
tions, i.e., the disclosure of material information during the sale process.
Defendants add that any claim relating to the disclosure or non-disclosure of
information must be resolved under a provision in the SPA, which provides for
an indemnification period that has already expired.
[94] “Defendants argue that the sale process followed for the disposal of the
Luxembourg company conformed to standard practices: these are characterized
by the fact that potential buyers usually do not have access to all information
regarding the company being sold and that the seller disclaims its liability in this
respect. In the instant case, Defendants and their advisors followed the ‘usages of
the trade’ applying to such type of transactions; consequently, they cannot be
•? accused of négligence.
[95] “With respect to the three Audit Reports, Defendants state that they have
discharged their duty to disclose by inserting in the materials made available to
prospective buyers the minutes of a board of directors of the Luxembourg
company which mentions the existence of the first Audit Report: Claimant
knew therefore of the existence of the first report and had a duty to ask for
the document.
[96] “With respect to the BRIF Demands, Defendants argue that it was up to
Claimant to inform itself about possible criminal risks. Defendants add that a
reasonable seller in their position would not have known that these Demands
would have been important to the potential buyer; Defendants also contend that
they could not disclose the documents which are covered by the secret de
l’instruction.
[97] “Defendants claim that Claimant did not perform its duty to inform itself
about the Luxembourg company; Claimant relied mainly on the information
received during the sale process and failed to follow up on matters disclosed
during that process; in addition, Claimant did not ask for standard representa¬
tions and warranties; Claimant sought protection against unknown factors by
?ÿ offering a discounted price for the shares of the Luxembourg company.
Defendants point out that there is an important gap in time between the BRIF
Demands and the first arrests; according to Defendants, there was no indication
that the police investigated the practice that gave rise to the BRIF Demands
[until shortly before the arrests]. The investigations concern events that
! occurred both before and after the execution of the SPA; after the execution
of the SPA, the Luxembourg company continued to develop its FPS business,
specifically in France, in what appears to be an aggressive approach.
í
;
:

L
[98] “Defendants’ conclusion is that there is no causal link between their

alleged culpa in contrahendo and Claimant’s alleged damages.
[99] “With respect to the damages claimed, it is Defendants’ case that any drop
in the value of the Luxembourg company results from multiple causes, which
interrupts the causal link between the alleged negligence and the alleged
damages. Defendants contend that the non-disclosure of the Audit Reports,
the BRIF Demands, as well as the information contained in these documents,
did not cause any damage at all: had these documents and information been
disclosed, Claimant would have asked follow-up questions and, on the face
of the answers to these questions, would have purchased the Luxembourg
company in any event. As Claimant offered a price based on the assumption
that the Luxembourg company could lose its entire French business, Claimant
cannot prove that it would not have bought the Luxembourg company or that it
would have bought it at a lower price than the one it offered.”
3. The Tribunal’s Holding
a. Defendants’ duty to disclose
[100] “It is not disputed that the parties to a contract have to negotiate in good
faith. Although the Parties disagree as to the extent of the seller’s duty to inform
the prospective buyer, this disagreement appears to rest essentially on theoret¬
ical grounds. The Tribunal is satisfied that the principles set forth in Arts. 1382
and 1383 of the Luxembourg Civil Code apply and that the determination of
whether a party has breached its duty to negotiate in good faith is a factual
matter, the test to apply being whether the seller has acted as a reasonable person
would have acted in the same circumstances.
[101] “Among the facts to be taken into account in the instant case are the
following: (i) both Parties are professionals of the insurance sector; (ii) both
Parties are informed of the nature of the FPS activities in the insurance sector
and of the difficulties resulting from the attitude of sovereign states confronted
with the outflow of funds (sometimes the proceed of tax evasion) to offshore
centres; (iii) both Parties are informed of the legal and commercial environment
prevailing in Europe at the relevant time; (iv) the buyer is assisted by specialists
in the field of law, tax law, regulations, compliance insurance, etc.
[102] “The facts of the case have been discussed at length above, and there is
therefore no need to review them again in detail. Taking all these facts and
prevailing circumstances into account, the Tribunal came to the following
findings.
[103] “The distinction made by Claimant between the general risks attached
to the conduct of a FPS business (the ‘industry risks’) and the specific risks faced

ZiJZT—L
--
>7T.

by the Luxembourg company at the time of the sale is well founded. Claimant
was in a position to figure out for itself that the conduct of FPS business in
France entailed certain risks, particularly since France had taken legislative steps
aimed at curbing the flow of funds through the subscription of offshore
insurance products from France to Luxembourg; the possibility that the
French market could one day be closed to the Luxembourg company seems
to have been contemplated by Claimant and its advisors during the sale
process. . . .
[104] “Claimant could not have discovered, during the sale process, that BRIF
had issued several requests relating to deposits to the Luxembourg company’s
account with the Bank and to certain practices of the Luxembourg company’s
brokers. Although it was uncertain at the time whether the BRIF Demands
would lead to a criminal investigation, the Defendant Group should have
informed Claimant that the BRIF had requested such information. The possible
consequences of the BRIF enquiries should have led the Defendant Group to
analyze the situation of the Luxembourg company’s activities in France glob¬
ally, inter alia in the light of the findings of the second audit. Such analysis ought
to have induced the Defendant Group’s sale team to disclose to Claimant the
information contained in the BRIF Demands and in the second audit.
[105] “In the Tribunal’s view, the duty of the seller to negotiate in good faith
did not command that the first audit and the Bank Audit, nor the information
contained therein, be communicated to or shared with Claimant, as there were
good reasons to consider, at the relevant time, that the practices identified in
these reports had been discontinued. The same view is adopted with respect to
the alleged ‘defects’ of the Luxembourg company’s management and
commercial team: the Tribunal did not find evidence of the existence of a
‘scheme’, a money laundering of which the Luxembourg company’s manage¬
ment was aware at the time and in which it had taken part. Finally, the Tribunal
is not convinced that Defendants were negligent when they indicated their
reasons for disposing of the Luxembourg company but, considering the
Tribunal’s findings with respect to the information contained in the BRIF
Demands and in the second audit, this issue becomes moot.
[106] “It is the Tribunal’s opinion that the information identified above that
Defendants failed to disclose was material to a potential buyer; by not dischar¬
ging its duty, Defendants did not act as a reasonable seller would have in the
same circumstances and, therefore, Defendants committed a culpa in
contrahendo.
[107] “The Tribunal considers that the breach of the obligation to negotiate in
I£ good faith is attributable to the Defendants collectively as the sales team had
been acting on behalf of all companies of the Defendant Group which owned
Í
I

shares in the Luxembourg company. Defendants will therefore be held [liable]

in solidum.
[108] “The Tribunal does not accept the Defendant Group’s defence derived
from the provision in the SPA [limiting liability in respect of any ‘communica¬
tion, fact, act, dispute, documents or other information’ disclosed in the course
of the sale process]. This contractual limitation to the Defendant Group’s lia¬
bility does not apply to documents or information which were not part of or
referred to in the materials made available to prospective buyers, such as the
BRIF Demands and the second audit on which the Tribunal’s determination is
founded.
[109] “Similarly, the Defendant Group’s defence based on the provision in the
SPA pursuant to which the Defendant Group’s obligation to indemnify
Claimant under the SPA has already expired cannot be accepted: in asserting
a culpa in contrahendo claim, Claimant has placed itself outside the scope of the
SPA and such claim is therefore not caught by the SPA provision.
[110] “In a last defence, the Defendant Group argues that the secret de
l’instruction constituted an obstacle to the disclosure of the BRIF Demands
or their content to a potential buyer of the Luxembourg company. The
Tribunal does not understand how such secret could be invoked under the
circumstances, i.e,, at a time when no instruction had yet been initiated,
the BRIF Demands being, as the Defendant Group itself pointed out, part of
a preliminary enquiry initiated by the public prosecutor; further, the Tribunal
has seen no evidence that such a preliminary enquiry is covered by the secret,
particularly as Claimant had signed a Confidentiality Letter.”
b. Remedy
[111] “The legal principles governing the causal link between the negligence
committed by a party during the negotiation of an agreement and the damage
suffered by the other party are well known and there is no need to discuss them
here at length. The Parties accept that the doctrine of the ’causalité adéquate’ or
‘efficiente’ is applicable in this case.
[112] "Applying the principles governing the determination of the compen¬
sation of the injured party, the Tribunal took the following factors into account
to make its determinations.
[113] “It is stated in the Luxembourg company’s Annual Report for the year
of the arrests that the sales activities for that year were hurt by four factors, [one
of which was the legal investigation following the arrests]. Referring to the
continuation of the ‘legal investigation’ into the Luxembourg company’s
French activities and to the Luxembourg company’s indictment, a
Management Report of that year states that: ‘ . . . given the fact that most of

ÏÏ
I
the judicial control measures concern practices that the company had stopped
already some while ago, the direct impact of the judicial control on the daily
business of the company will not be substantial’.
[114] “The Management Report for the following year again points out the
difficulty facing the life-insurance sector due to [four, reduced to three, factors];
the same report indicates that the conditions of the indictment have no ‘material
effect’ on the Luxembourg company’s business and that ‘there is no need to
make a provision’. In relation to this criminal investigation and, in the board’s
views, ‘the company is able to continue as a going concern’.
(....)
[115] “Claimant points out that the Annual Reports and the Annual Accounts
of the Luxembourg company are ‘general corporate communications’ that
should not prevail over more comprehensive professional valuation of the
Luxembourg company, such as [expert Y’s] opinion; Claimant further states
that, as it still owns the Luxembourg company, it has no choice but to continue
to support it in public statements and to preserve the Luxembourg company’s
gjvalue.
existine
[116] “While considering that Claimant has a valid point on the necessity to
preserve the Luxembourg company’s value, the Tribunal is not prepared to
discard the statements made in the Annual Reports: the statements and the
Annual Accounts submitted to the shareholders constitute, in the Tribunal’s
view, objective evidence of the Luxembourg company’s situation during the
relevant periods and will be taken into account, without prejudice to the expert
opinions as to the value of the Luxembourg company submitted by both Parties.
[117] “At this stage, several conclusions may already be drawn:
(i) three factors, of different weight, had an impact on the Luxembourg

company’s sales for the year of the arrests, only one of which relates to
the criminal investigation which caused the arrests; the position consisting
in attributing the reduction of the Luxembourg company’s value and of
the Luxembourg company’s market share in that year entirely to the
arrests - more precisely to the Defendant Group’s breach of its good-
faith duty - cannot be reasonably sustained;
(ii) it appears that, one year later, the indictment of the Luxembourg company
had no substantial effect on the business of the company; this constitutes
evidence that, at that point in time, the detrimental effects of the arrests had
Í already been significandy reduced. The confirmation of this conclusion is
i- found in that year’s Management Report, which provides a useful indication
as to the time period during which the detrimental effects of the arrests were
felt: such period does not seem to have extended beyond the first, possibly
t the second, quarter of that year;
I
■
I
IL Reprinted from the Yearbook Commercial Arbitration 167
(iii) as previously noted, there is no evidence that Claimant took the decision
to close the Luxembourg company or transfer its activities or its business
to other companies, or otherwise dismantle the Luxembourg company, as
Claimant seems to have argued at one point; on the contrary, despite the
difficulties in operating in an unfavourable economic, financial, political
and legal environment, the Luxembourg company’s business and expansion
were pursued.
[118] “If it cannot be denied that, during a limited period as mentioned above,
the Luxembourg company’s business was detrimentally affected by several
(four, reduced to three, as mentioned above) factors, the Tribunal lacks precise
guidelines and data to determine the respective weight of the contributing factors.
The Defendant Group’s position to the effect that the arrests had no [impact] on
the Luxembourg company’s affairs cannot be sustained; nor can Claimant’s
position amounting to allocating the ‘blame’ entirely to arrests be accepted.
The truth lies, obviously, between these two extreme and unacceptable views.
[119] “It is the Tribunal’s position that the determination of the incidence of
the arrests will depend to a large extent on the nature of the prejudice of which
the compensation is claimed by Claimant. Consequently, the Tribunal may have
to make as many determinations on the causality issue as there will be items of
damages to be taken into account.
[120] “Claimant claims, under the culpa in contrahendo, that the following
prejudice was suffered by the Luxembourg company and has to be compensated
by the Defendant Group. Claimant states, in essence (excerpts):
(a) ‘If the Luxembourg company acquisition is not annulled, Claimant is

entitled to be compensated for the loss in value of its investment in the
Luxembourg company and the costs associated with the French criminal
procedure’;
(b) the ‘loss in value of its investment’ is ‘measured as the difference between
the purchase price that Claimant paid for the Luxembourg company and
the residual value of the Luxembourg company as of today’;
(c) ‘if the Tribunal does not annul the Luxembourg company acquisition, then
Claimant is also entitled to recover the costs that it incurs in responding to
the French criminal investigation. These costs are damages directly attrib¬
utable to the Defendant Group’s misconduct and Claimant is entitled to be
compensated for them in full’;
(d) ‘Regardless of whether the Luxembourg company acquisition is annulled,
Claimant is also entitled to compensation for the damage which the Defen¬
dant Group’s dol or bad faith caused to its European strategy (or which
resulted to that strategy from mistake).’

SíHSSC-I :-..- -•-• -:----- - : -_t ::ÿ"— nvïfi;::f 15

[121] “The Tribunal understands that the damage claim covers the following
prejudices:
(i) loss of the Luxembourg company’s value;

(ii) reputational damage caused to the Luxembourg company;
(iii) impossibility for Claimant to use the Luxembourg company as the hub of
its European expansion, or, at least, a delay in realizing such European
expansion;
(iv) the costs of acquisition;
jf
(v) the costs of operating the Luxembourg company during the periods start¬
ing on the closing of the SPA until the present time, and
(vi) the costs of defence incurred in relation to the criminal proceedings.
The first task of the Tribunal is to determine if and, in the affirmative, to what
extent, the negligence which the Tribunal decided that the Defendant Group
committed during the sale process was the cause of the damages sought. The
Tribunal will subsequently address the quantum of each monetary claim and the
relationship between the damage suffered by the Luxembourg company and
the ensuing consequences for Claimant.”
(i) Loss of the Luxembourg company's value

[122] “If Claimant had been informed of the content of the BRIF Demands
and of the findings of the second audit, as the Tribunal found it was the
Defendant Group’s duty to provide such information, it is Claimant’s case
that it would not have acquired the Luxembourg company. Claimant’s wit¬
nesses and experts declare that they believe that, in such situation, the purchase
of the Luxembourg company would not have taken place. There is no reason to
doubt that these witnesses and experts testified in good faith but such declara¬
tions are speculations, expressed ex post facto, and one cannot conceive that they
could have declared otherwise since Claimant, as from the Statement of Claim,
decided to seek the annulment of the SPA.
[123] “The Tribunal is not convinced that, had Claimant been duly informed
of the BRIF Demand and of the result of the second audit, it would have nec¬
essarily walked out of the sale process. It is not unreasonable to speculate that
Claimant could have chosen to proceed, but on different conditions: it could
have offered a reduced price, in which the risk of a criminal investigation would
have been factored; it could have sought protection of its interest against the risk
to the Luxembourg company through adequate contractual guarantees, such as,
i. e., a longer indemnification period, specific indemnification in case of a
criminal investigation relating to the Luxembourg company and/or its sales

agent in France, specific indemnification for a loss of value, loss of market share;
it could have requested that a substantial portion of the purchase price be put in
escrow.
Considering that Claimant would have pursued its project, the Tribunal can¬
not accept that Claimant’s claim for the loss of value of the Luxembourg
company be in the amount of the price paid for the Luxembourg company.
An order from the Tribunal to return to the situation existing prior to the closing
of the SPA would not be a justified compensation of the Defendant Group’s
negligence.
[124] “As a result of the Defendant Group’s failure to disclose, Claimant was
kept unaware of the risk of the occurrence of a criminal investigation involving
the Luxembourg company; had it been made aware of such risk, it is reasonable
to assume that, beyond the contractual protection mentioned above, Claimant
would have taken various measures to protect its interest, such as the imple¬
mentation of a rigorous control of the sales force in France, the strict application
of the procedures in force in France, the discontinuance of certain activities of
the Luxembourg company in France which could be criticized under the appli¬
cable legislation; Claimant could have caused the Luxembourg company to
adopt a somewhat less aggressive attitude towards the French Republic in the
Luxembourg company’s complaint to the EU Commission; Claimant could also
have taken measures to adopt its French sales force to the activities which the
Luxembourg company could still carry out without exposing itself further to the
risk of prosecution.
[125] “The quantification of the prejudice cannot be, as claimed by Claimant,
the price paid less the present value. First because the loss of value of the
Luxembourg company to be indemnified is not a permanent loss, but a loss
relating to a limited time period; second because the present value asserted by
Claimant, relying on the experts’ opinion, does not correspond with the
Luxembourg company’s situation as is described by the Luxembourg com¬
pany's management in the Annual Reports mentioned above. As mentioned
above, the reduction in the number of policies subscribed and in the
Luxembourg company’s market share can be attributed to several factors,
only one of which can be related to the Defendant Group’s negligence and to
the arrests.
[126] “The Tribunal notes that Claimant has not been able to provide detailed
justification of the prejudice suffered by the Luxembourg company other than
by comparing the purchase price to the present value, without allocation for the
causes contributing to the present value and without taking into account the fact
that such loss cannot be considered as permanent.
[127] “It is settled law - in France, Belgium and Luxembourg - that in a
situation where the Parties have been unable to provide the judge with precise

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elements enabling him to determine the exact cause and to calculate the prejudice
claimed under Arts. 1382 and 1383 of the Civil Code, the judge is justified in
using his discretion in determining the causal link and in fixing the amount of the
compensation. In the instant case, the Tribunal finds itself in the situation just
described; first, no evidence has been offered as to the allocation of the loss of
value of the Luxembourg company to the three contributing factors identified
by the Tribunal on the basis of the Luxembourg company’s Annual Reports/
Accounts for the fiscal years of the arrests and the following year; second, no
quantification of the prejudice suffered by the Luxembourg company was pro¬
posed but for the difference between the price paid for the Luxembourg
r company shares and its present value, which difference, as the Tribunal
found, is not an acceptable evaluation of the prejudice suffered.
[128] “Among the elements which have to be taken into account are the
following:
■
.«
(i) Claimant’s quantification of the present net asset value of the Luxem¬
bourg company;
(ii) the sales of the Luxembourg company were going down as from almost
one year before the arrests;
(iii) the evolution of the Luxembourg company’s market share in the relevant
years shows a reduction but the market share of most of the companies
appearing on the chart based on sector statistics decreased during that
period;
(iv) as argued by Defendants, there were new entrants in the market during
that period;
(v) worth noting is that the Luxembourg company’s market share increased
in the year following the year of the arrests compared to chat latter year;
(vi) the assumptions on which the valuations of the Luxembourg company
[were] made by the experts of both Parties appear equally unacceptable:
the experts called by Claimant assert that the Luxembourg company will
have no new business of value, hence the goodwill is zero, while the
expert called by Defendants values future new business at [a substantial
amount];
(vii) in the year of the arrests, the general meeting of shareholders of the
Luxembourg company decided to distribute a dividend, which fact is
not taken into account, as it ought to be, in Claimant’s valuation of the
Luxembourg company.
[129] "On the basis of the foregoing, the Tribunal finds that it has no option
f but to use its discretion in fixing the damage resulting for the Luxembourg
! company from the Defendant Group’s negligence during the sale process;
Í
II
l Reprinted from the Yearbook Commercial Arbitration 171
ARBITRAL AWARDS CASE NO. 11961,2006
accordingly, taking all prevailing circumstances into account, the Tribunal fixes
the amount of the loss of value of the Luxembourg company to be compensated
by the Defendant Group at [amount A]. The Tribunal finds that the damage
suffered by Claimant is equal to the loss of value of the Luxembourg company
and shall order the Defendant Group to compensate Claimant accordingly.”
(ii) Reputational damage

[130] “It is a fact that the arrests have had a detrimental effect on the
Luxembourg company’s reputation. The detention of several executives
and employees of the Luxembourg company and their mise en examen con¬
stituted, without any doubt, very bad publicity for the Luxembourg
company. Some time thereafter, the Luxembourg company’s sales activities
in France were disrupted and, eventually discontinued, at least temporarily. It
does not appear from the evidence that the activities in the other European
Union countries were significantly affected. Although the French portion of
the Luxembourg company’s business did suffer from the mises en examen, the
conditions which were imposed by the juge d'instruction on the Luxembourg
company did not affect the Luxembourg company, as its management
acknowledged.
[131] “The Luxembourg company’s management is reported to have suc¬
ceeded in maintaining the company as a going concern, and the Tribunal
takes the view that the detrimental impact on the Luxembourg company’s rep¬
utation and image did not last for more than a few months and with diminishing
effect. As the Tribunal has not been provided with evidence of consequences of
the Defendant Group’s negligence on the image of the Luxembourg company
and lacks precise elements to evaluate the detrimental effect of the Defendant
Group’s negligent conduct on the Luxembourg company, it shall use its discre¬
tion in fixing the monetary compensation.
[132] “Taking into account all relevant circumstances, the Tribunal fixes the
amount of the reputational damage to be compensated under this head of claim
at [amount B].”
(Hi) No European hub

[133] “As noted above, Claimant had informed the Defendant Group of its
intention to use the Luxembourg company as a hub for its expansion in Europe
(the ‘hub and spokes’ business model). The lack of specific contractual provision
to that effect would not necessarily exclude, within the scope of a culpa in
contrahendo claim, a prejudice relating to Claimant’s hub project.
[134] "However, as a matter of fact, the Tribunal is not convinced that the
Luxembourg company is not apt to be the hub contemplated by Claimant.

Admittedly, its name, having been associated with the criminal investigation,
could constitute a negative factor and hamper European extension, but this
could have been remedied by a name change. More specifically, relying on the
Annual Report of the shareholders meeting for year of the arrests and the year
after that, the Tribunal takes the view, as the Luxembourg company’s man¬
agement did, that whatever damage may have been caused to the Luxembourg
company’s reputation and value, the company could continue to operate, to
grow and to be the basis of the expansion in several European countries (i.e.,
Italy and Germany). Claimant has set up a company to own and operate the
new office building erected in Luxembourg, as well as a holding company,
thereby showing that the ‘cluster’ of companies, in Luxembourg, were, in fact,
constituting the hub that Claimant had contemplated.
[135] “The Tribunal did not find evidence that Claimant’s expansion project
has been significantly hampered nor delayed by the arrests. For these reasons,
■Z-
Claimant’s claim for damage to its European expansion through the
Luxembourg company cannot be accepted.”
(iv) Costs of acquisition

[136] “Claimant claims compensation for the costs incurred by it in the acqui¬
sition of the Luxembourg company. Clearly, such claim can only be asserted as
an accessory to a claim for the annulment of the SPA; as the Tribunal has dis¬
missed the annulment claim, the claim for compensation of the costs of acqui¬
sition fails for lack of any causal link between the Defendant Group’s negligence
Ü and the costs claimed.”
(v) Operational costs

[137] “If such a claim1 could be asserted as part of a claim for the annulment of
the SPA, it cannot be taken into consideration where the Tribunal has refused to
annul the contract. In addition, there is no causal link between the negligence for
I which the Defendant Group is being held responsible and a claim for reimburse¬
t ment of the operating costs of the Luxembourg company for the last five years.
I This claim is therefore dismissed.”
f (vi) Defence costs in relation to the criminal proceedings

[138] “As noted above, it is reasonable to consider that, had Claimant been
& informed of the risk of criminal proceedings involving the Luxembourg
1. "I.e., a claim for the costs for operating the Luxembourg company during the period starting at the
closing of the SPA until the Tribunal’s decision.”
:
k.
company, its managers and its sales force could have taken steps to reduce such
risk; in this respect, Claimant could have initiated contact with the BRIF, the
procureur de la République and/or the juge d’instruction and, thereby, could
possibly have reduced the detrimental consequences of the pending investiga¬
tion; no such possibility having been afforded to Claimant, the Tribunal’s view is
that the expenses incurred by the Luxembourg company in defending itself and
its personnel in the criminal proceedings have to be compensated. . . . The
Tribunal finds that it is reasonable to order that Claimant be reimbursed of a
lump sum [amount C] representing the aggregate of the fees and expenses of the
external advisors which appeared for Claimant and the Luxembourg company,
as their fees and expenses have been listed in Appendix A to the Statement of
Claim.
[139] “There is no evidence that the ‘internal costs’ and ‘miscellaneous
expenses’ charged under this head of claim by Claimant have been incurred
for the purpose of defending the Luxembourg company in the criminal proceed¬
ings; consequently, these costs and miscellaneous expenses shall not be consid¬
ered as damages.”
c. Interest
[140] “Claimant calculates the ‘present value’ of its payment to the Defendant
Group based on an interest rate of 5% per annum, which corresponds to the
legal interest in Luxembourg for the relevant years.
[141] “The Tribunal considers that it is appropriate to order that the amounts
to be paid by the Defendant Group to Claimant be increased by simple interest
at the rate of 5 % per annum from the date of the Request for Arbitration for one
year and at the legal rate applicable in Luxembourg as of the relevant time until
full payment.”
d. Defendants’ liability
[142] “Claimant’s claim is directed against the Defendant Group, that is

against the five companies of the Defendant Group, and Claimant seeks that
these companies be ordered to compensate it jointly and severally. As the
Defendant Group pointed out, the SPA provides that the Sellers of the
Luxembourg company’s shares did not ‘act jointly and severally for the pur¬
poses’ of the SPA and, particularly, with respect to the provision on
indemnification.
[143] “The Tribunal’s view is that the sales team acted for all companies of the
Defendant Group and not individually, on behalf of each Company. There is no
logical or other justification in an order of the Tribunal being issued to each

-ass::-:* ::
--
1

Defendant in proportion to the number of shares it held in the Luxembourg
company nor in ordering each Defendant to pay one-fifth of the compensation.
Therefore, the Tribunal shall condemn the Defendants in solidum.”
VIII. DEFENDANTS’ COUNTERCLAIMS

1. Defendants' Position
[144] “In their Answer and Counterclaim, Defendants contend that, to put
pressure on them during the negotiations which took place before the inception
of these proceedings, Claimant ‘divulged details of this dispute’ to the press,
which constitutes a breach of the obligation not to disclose information relating
to ongoing international arbitration and a breach of the confidentiality provision
L" in the SPA. Defendants request that they be compensated for the damage suf¬
X- fered, to be quantified in [amount ZJ.”
[145] “In its Statement of Reply and Defence to the Counterclaim, Claimant
rejects the counterclaim on the following grounds: (a) there is no factual basis, as
Claimant has not ‘divulged details of this dispute ... to the press’; (b) the
Defendant Group itself has made public statements referring to this arbitration;
(c) there is no evidence that the Defendant Group was in any manner damaged
by the press reports. According to Claimant, the Defendant Group’s
counterclaim is legally groundless: there is no confidentiality of the arbitration
in French law nor in the ICC Rules.
[146] “There is no generally accepted principle of confidentiality of arbitral
proceedings. The Defendant Group’s argument based on the SPA does not
apply: this contractual provision points to the obligation to keep confidential
the ‘terms’ of the SPA and the information contained in the SPA, and nothing
else. Claimant has not discussed the counterclaim further, whether in its oral
presentations or in the Post-Hearing Memorials.”
%:ÿ 3. The Tribunal’s Holding
$
[147] “. . . . The confidentiality provision of the SPA clearly covers the ‘terms’
of the SPA and the ‘information of any kind’ contained in the SPA. The arbi¬
tration provision in the SPA does not contain a confidentiality agreement. More
generally, the Parties have not entered into confidentiality agreement
concerning the arbitration proceedings.
v
I
m
[148] “The ICC Rules, under which these proceedings are conducted, do not
contain a confidentiality commitment from the Parties (under Art. 6 of
Appendix 1 to the ICC Rules ‘the work of the Court is of a confidential nature
which may be respected by every one who participates in that work in whatever
capacity’).
[149] “Most of the commentators acknowledge that there are no generally
accepted principles of confidentiality of international arbitral proceedings and
that, absent a contractual undertaking - as in the instant case - the existence of
the arbitration and its content are not confidential matters. (Expert Opinion of
Julian Lew in Esso/BHP v. Plowman, Arbitration International, 1995, p. 283; J.
Paulsson and N. Rawding, ‘The trouble with confidentiality’, Arbitration
International, 1995, pp. 304-305; E. Gaillard and J. Savage, Fouchard Gaillard
Goldman on International Arbitration, 1999, para. 384 (see also para. 1412)).
Contrary to Defendants’ contention, it is not accepted, as a matter of principle,
that confidentiality is inherent to international commercial arbitration. It is,
however, generally accepted that the parties - as well as the arbitrators have -
a duty of discretion covering the arbitral proceedings, the submissions and
evidence exchanged in the course of such proceedings, and the award, and
that the hearings are not to be open to the public.
[150] “For these reasons, the Tribunal finds that there is no duty of confiden¬
tiality applicable to the Parties; consequently, there is no need for the Tribunal
to make a finding on the factual aspects of the counterclaim. Further,
Defendants’ ‘counterclaim has not been quantified. The counterclaim is conse¬
quently dismissed.”
IX. COSTS
1. Legal Fees and Costs
(..•ÿ)
[151] “Under Art. 31.3 of the ICC Rules, the Tribunal has a general discretion
as to the Parties’ reasonable and other costs, in the meaning of Art. 31.1. There is
no general rule expressed in the ICC Rules that the unsuccessful party shall bear
the costs of the successful party or that each party shall bear its own costs
regardless of the result. As regards French law, there is also no rule expressly
qualifying the Tribunal’s general discretion, and the Tribunal does not consider
that the question of costs under the ICC Rules can be materially affected by the
Parties’ choice of Luxembourg law as the law applicable to the SPA.
[152] “How is the Tribunal to exercise its general discretion? In the circum¬
stances, the Tribunal takes into account, i.a., the following factor: the arrests
were bound to lead to a grave dispute requiring final adjudication; in every sense,

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ts;
these arbitration proceedings were therefore inevitable; for both sides, the con-
sequences of being wrong on the setting aside of the SPA were very serious;
therefore, these arbitration proceedings served the interests of both Parties.
[153] “As the Defendant Group has been held liable vis-à-vis Claimant, it is
logical that the Defendant Group bear its own legal fees and expenses; the
Tribunal so orders.
■
[154] “The Tribunal notes a significant difference between the Parties’ claim
for legal fees and expenses; without in any manner considering the legal fees
claimed by Claimant to be excessive, the Tribunal considers it reasonable that
the Defendant Group be ordered to pay the legal fees and expenses incurred by
; Claimant up to a lump sum amount [amount D].”
2. Costs of the Arbitration

'A
[155] “With respect to the costs of the arbitration, the Tribunal exercises its
discretion in the same manner as it did for the legal fees and costs and decides '
that the costs of the arbitration shall be borne entirely by the Defendant Group.
The Defendant Group shall be ordered to pay to Claimant the share of the fees
and costs of the Administrative Secretary to the Tribunal paid by Claimant. The
Defendant Group shall bear the costs fixed by the Court . .. and, consequently,
the Defendant Group shall be ordered to pay to Claimant the amount of the
advance on costs paid by Claimant.”
X. DECISIONS
[156] “For the reasons set out above in this final award, the Arbitral Tribunal
issues the following decisions:
(1) denies the application for a stay of the arbitral proceedings filed by First
Defendant, Second Defendant, Third Defendant, Fourth Defendant and
Fifth Defendant;
(2) declares that by contributing its shares of the Luxembourg company to
Company X, Claimant has not waived its right to seek the annulment of
the SPA;
(3) denies Claimant’s request to have the SPA annulled on the ground of dol;
(4) denies Claimant’s request to have the SPA annulled on the ground of
erreur,
(5) declares that Defendants committed a culpa in contrahendo during the
negotiation phase of the SPA; consequently, orders First Defendant,
Second Defendant, Third Defendant, Fourth Defendant and Fifth

Defendant, in solidum, to pay to Claimant, by way of damage, the

following amounts:
(i) for the loss of the Luxembourg company’s value, amount A, plus
simple interest at the rate of 5% per annum for a year from the
filing of the Request for Arbitration;
(ii) for reputational damage to the Luxembourg company, amount B,
plus simple interest at the rate of 5 % per annum for a year from the
filing of the Request for Arbitration;
(iii) for defence costs incurred in relation to the criminal proceedings,
amount C plus simple interest at the rate of 5% per annum for a
year from the filing of the Request for Arbitration;
(iv) the interest on the principal amounts mentioned under (i), (ii) and
(iii), at the legal rate applicable in the Grand Duchy of Luxem¬
bourg until full payment;
(6) dismisses the counterclaim asserted by First Defendant, Second Defen¬
dant, Third Defendant, Fourth Defendant and Fifth Defendant;
(7) decides that Defendants will bear their own legal fees and expenses, and
orders First Defendant, Second Defendant, Third Defendant, Fourth
Defendant and Fifth Defendant in solidum to pay to Claimant, towards
legal fees and expenses, a lump sum amount [amount D];
(8) decides that Defendants shall bear the costs of the arbitration as set out
above ... ;
(9) rejects any claim, counterclaim and request for relief not dealt with
otherwise in this Section.”

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I
Final award in case no. 12112
Parties: Claimants: (1) First Investor, in liquidation (EU

country);
(2) Second Investor (EU country)
Respondent: Ministry of Agriculture (Non-EU
country)
Place of Geneva, Switzerland

arbitration:
i¡
Subject matters: - joint venture agreement
- intention of parties as to applicable law
- breach of contract by failure to contribute to joint
venture
- force majeure
- contractual obligations transferred to successor
- limitation period to bring legal action (arbitration)
- damnum emergens
- lucrum cessans
- compound interest
- rate of interest
Facts
A State entity of State Y (the State Entity) and a non-State partner established a
joint venture for the cultivation of agricultural products, the breeding of live¬
stock and the processing and sale of the resulting products. The non-State
partner was replaced by two foreign investors, First Investor and Second
Investor (Claimants, collectively). Claimants and the State Entity concluded
two contractual instruments in respect of the joint venture: (1) a Contract for
the Creation of a Limited Liability Company (the Contract), under which the
parties undertook to create such company, established their mutual obligations
and regulated their relationship, and (2) the Statute of Limited Liability
Company “Company X” (the Statute), establishing Company X and setting
I
179
II Reprinted from the Yearbook Commercial- Arbitration
ARBITRAL AWARDS CASE NO. 12112
out the obligations of the partners toward it. The private partner was to con¬
tribute financial funding for the joint venture’s operation; the State partner was
to contribute land, workforce, equipment and facilities (offices, workshops,
greenhouses). The Statute provided that Company X would cease its activity
if it were unprofitable for a period of five years. The Statute also contained a
clause for ICC arbitration of disputes in Geneva.
The activities of Company X experienced serious difficulties from the start:
among other disturbances, the land had been only partly sown and was occupied
by farmers, who in some cases claimed ownership; the workshops were occu¬
pied by protesting wives of workers; no workers were available and the offices
were used by personnel of the State Entity or the local Municipality. Claimants
negotiated a solution to this situation with the Ministry of Agriculture of State Y
(the Ministry). The Ministry gradually replaced the State Entity, by then in
liquidation, as the State partner in the joint venture; the substitution was
complete at the latest when Claimants and the Ministry entered into a
Memorandum of Understanding (MOU) providing for a reduced contribution
to the joint venture on the part of the State partner. The reduction of the stat¬
utory capital of Company X was subsequently approved by an extraordinary
general assembly.
Company X commenced operations. The first budgetary years ended with
considerable losses and Claimants made additional financial contributions to the
joint venture. A few years later, incidents occurred in a neighboring country and
the Ministry asked Claimants whether it could make Company X’s land avail¬
able to an international organization to accommodate refugees. Claimants’
representative replied that Claimants might consider making “a particle” of
the land available, but on the following day State Y proceeded to make all the
land available to the international organization. The land was cemented.
Alleging that the steps necessary to restore the land for cultivation and grazing
would result in the complete interruption of Company X’s activities, Claimants
refused to approve the accounts for the successive year and to make further
financial contributions. They also commenced ICC arbitration, seeking the
dissolution of Company X for non-performance by the State partner and
damages for both damnum emergens and lucrum cessans. Arbitration proceed¬
ings commenced in Geneva, as provided for in the Statute. A Sole Arbitrator was
appointed and first issued an Interim Award on Jurisdiction finding that he had
jurisdiction and that the Ministry had standing in the arbitration.
By the present Final Award, the Sole Arbitrator dissolved Company X and
held that the Ministry breached its contractual obligations and was liable for the
damages caused to Claimants. The Arbitrator quantified those damages as being
the total amount of the financial contributions made by Claimants to Company
X {damnum emergens) and compound interest thereon.

S I
CASE NO. 12112 ARBITRAL AWARDS
The Sole Arbitrator first held that the law of State Y applied to the substance
of the dispute. He noted at the outset that as a rule it should not be easily found
in respect of a joint venture involving foreign investment that the parties have
chosen a law other than the law of the joint venture company to govern their
relationship. The law of the joint venture company is also normally the law with
which the relationship between the partners has the closest connection. Here,
the Contract contained ambiguous language that could be read to mean that
while the Statute and all other matters would be governed by the law of State
Y, the specific subject matter of the Contract - the mutual obligations of the
parties - would not. The Arbitrator concluded that this was not the parties’
intention. He noted that the parties only referred to the law of State Y in the
arbitration in respect of their mutual obligations. Further, like the Contract
also the Statute contained provisions creating obligations between the part¬
ners; hence, a determination that the Contract was governed by a different
law would mean that identical clauses would be governed by different legal
systems depending on whether they were contained in the Contract or the
Statute.
The Sole Arbitrator then considered the obligations of the parties under the
Contract and the Statute (the initial obligations) and concluded that the State
partner did not perform under those obligations because it failed to make avail¬
able the land, equipment and facilities that were its contribution in kind to the
joint venture. Non-performance was not excused on grounds of force majeure,
as the State partner did not prove that it was impossible to avert the circum¬
stances that led to non-performance by reasonable means, or that those circum¬
stances were unforeseeable. The Arbitrator added that before freely accepting an
-
obligation, a party must “be certain that he has the ability to perform it” the
State partner must have been aware of the unstable political, social and economic
situation of State Y in the relevant period.
Nor was liability for non-performance under the initial obligations set aside
by the agreement to reduce the State partner’s contributions to the joint venture
reached by the parties in the MOU and confirmed by the general assembly of
Company X. The Sole Arbitrator noted that the Ministry also failed to comply
with those reduced obligations and that the circumstances leading to this lack
of performance were similar to those which led to non-performance of the initial
obligations. Similarly, there was no evidence here that those circumstances
could not be averted or were unforeseeable.
The Arbitrator also found that the MOU did not cancel liabilities under the
original obligations. By taking the State Entity’s place as the State partner in the
joint venture, the Ministry assumed all of its obligations. There was no indica¬
tion that the parties intended to make an exception for liabilities out of non¬
performance under the Contract and the Statute.
:
ï Reprinted from the Yearbook Commercial Arbitration 181
The Sole Arbitrator then held that the Ministry further breached the agree¬
ment with Claimants by granting all of Company X’s land to an international
organization. It was evident that Claimants had not consented to this use of the
land, as could be seen from the discrepancy between Claimants’ willingness to
discuss the concession of “a particle” of the land and the Ministry’s decision to
make all the land available for a refugee camp.
The Arbitrator last dealt with the relief sought by Claimants. He granted
Claimants’ request to dissolve Company X, noting the provision in the
Statute that Company X would cease its activity if it were not profitable for
a period of five years, and the fact that Company X had never made any profit.
He denied however Claimants’ request that Company X first be put in liqui¬
dation, holding that there was “no evidence of the slightest likelihood” of any
valuable asset.
As to damages, the Sole Arbitrator reasoned that Claimants’ lost contribu¬
tions to Company X - with no prospective profits - constituted their damnum
emergens and should be compensated. Differently, lucrum cessans was explicitly
excluded by a provision in the Contract that “indirect losses and lost opportu¬
nities shall not be compensated”). The Arbitrator also awarded compound
interest on the damages, as provided for in the law of State Y, and directed
the Ministry to bear the costs of the arbitration and reimburse Claimants for
their legal costs.
Excerpt
[1] “The first phase for determining whether Claimants can obtain, as they
request it in their conclusions, the dissolution of Company X and damages
because of the alleged breaches of obligations by Respondent [the Ministry of
Agriculture of State Y] consists in ascertaining the obligations binding on the
Parties; the second phase consists in ascertaining whether these obligations have
been infringed. If it had to be admitted that obligations have indeed been vio¬
lated, it would be necessary to examine whether Respondent can nevertheless
avoid any liability because of particular (e.g., contractual clauses) or general
exceptions or material objections which impede the liability to arise (e.g.,
force majeure, Claimants’ consent to violation) or to be legally realized against
Respondent’s will (e.g., desuetude). Only if it appeared that all these conditions
are fulfilled, it would be necessary to calculate Claimants’ (financial) injury and
damages.”

*!
Si t.
I CASE NO. 12112 ARBITRAL AWARDS
I. APPLICABLE LAW
[2] “The legal relationship between the Parties depends, first of all, on the
contracts that they have concluded. This is true also as to determining the appli¬
cable substantive law (which is to be determined by the Sole Arbitrator pursuant
to Art. 17 ICC Rules). Indeed, according to the lex fori which is, as law of the
conflicts of laws, decisive as to the determination of the applicable law (see Art.
1(1)(b) and Art. 13 of the Statute on Swiss Private International Law of 18
December 1987, hereafter: PILS), the Parties are entitled to choose which
legal system will govern their relationship (see Art. 116(1) PILS). The Parties
are bound by two contractual instruments: the ‘Contract for the creation of a
limited liability company’ (hereafter ‘Contract’) and the ‘Statute of limited lia¬
bility company Company X’ (hereafter ‘Statute’).
[3] “The Statute creates and organizes Company X [the Company] and,
sw according to its nature, sets the obligations of the partners towards the
Company. It is without any possible doubt submitted to State Y Law
(cf. Art. 154 et seq. PILS and Art. 2 of the Statute).
[4] “The Contract obliges the partners of the Company to create the
Company and to adopt a certain behavior related to the Company’s constitution
and its activities (the beneficiaries of these obligations reciprocally agreed by the
partners being the partners themselves and, possibly, the - future - Company
itself).
[5] “This contract is a Joint-Venture contract. It is not necessarily governed by
the same legal system as the Stamte (see Art. 155 PILS, a contrario; see also Art.
150(2) PILS, if the joint-venture contract had to be considered as a simple
partnership; if it is a contract sui generis, Art. 116 PILS would be directly
applicable). It may happen that a foreign investor imposes to the recipient of
its investments to exclude the application of the national law of the company
created as far as obligations between partners are concerned, e.g., because it
insufficiently knows this law for ensuring a satisfactory legal certainty.
However, as a rule, it cannot be easily admitted that the parties to such a contract
have chosen a legal system other than the legal system governing the company to
the creation of which they oblige themselves by this contract. Indeed, this legal
system is normally the one with which the direct relationship between the
partners has, by far, the closest connection (it is therefore the law which
would be applicable if the Parties had not chosen any legal system, cf. Art.
117(1) PILS).
[6] “In the Contract, the Parties have included a clause which could be con¬
sidered as somewhat ambiguous: Art. 40 says that ‘matters not plainly covered in
this Contract or the Statute shall be governed by State legislation’, what could
indicate that matters covered in the Contract shall not. Besides, in the Contract,

I
ARBITRAL AWARDS CASE NO. 121 12
State Y Law is designated for all matters exceeding the pure object of the
Contract (i.e., obligations between partners), such as relationships between
the future Company and its workers and the organization of said Company
itself or its relationships to third parties, but not for the obligations constituting
the main object of the Contract, i.e., obligations between partners; the mention
of State Y’s investment law, which potentially radiates on many obligations of
the (public) State partner (see below), is prima facie not decisive as to the des¬
ignation of applicable law, since the object of this Law regards State Y as such
(and sets obligations of public law), and not as a party to a private contract.
[7] "For these reasons, it could be discussed whether, as far as the obligations
between partners, i.e., the primary object of the Contract, are concerned, a legal
system other than State Y Law has been impliedly chosen. The Contract does
however not mention any other legal system (even not the lex mercatoria or the
‘general (or “universal”) principles of commercial law’; where the Statute men¬
tions the International Trade Customary Rules, it also mentions State Y Law).
The fact that several clauses creating obligations between partners are also pre¬
sent in the Statute (e.g., Art. 15 of the Contract and Art. 13 of the Statute), whose
mandatory and voluntary submission to State Y Law is unchallengeable (cf. Art.
2 Statute), tends to indicate that the Parties have chosen State Y Law as the legal
system applicable also to the Contract: otherwise, identical clauses would be
governed by different legal systems, depending on whether they are foreseen in
the Contract or the Statute.
[8] "Moreover, although Claimants have sometimes quoted general principles
of commercial law, they have, also as far as reciprocal obligations were at stake,
referred to State Y Law; the same can be said of Respondent’s procedural behav¬
ior (cf. Its briefs, quoting as well universal principles of law and State Y Law, the
first obviously not excluding the latter). Therefore, Claimants’ and
Respondent’s procedural behavior - which is an element recognized as being
of importance in determining the will of the Parties at the moment of the con¬
tract (see, e.g., Record of the Decisions of the Swiss Supreme Court (hereafter:
ATF/BGE) 116/1989 vol. II p. 695, No. 2b/cc at the end (p. 698)), which [in
turn] is a universally admitted principle arising out of good faith which is rec¬
ognized as well in State Y contract law (see also, e.g., Art. 5.102 of the Principles
of European Contract Law (hereafter PECL)) - confirms that, according to the
rules to be applied by the Arbitral Tribunal (PILS and autonomous analysis),
State Y Law must be recognized as the substantive Law actually chosen by the
Parties to apply to all obligations of the Parties. The same conclusion would be
drawn out of a constructive interpretation of the Parties’ will (see ATF/BGE 123
III 3.5 or Art. 5.101 PECL) or out of the application of subsidiary rules applying
in absence of a choice of the applicable law by the Parties (cf. Art. 117(1) PILS).

i - •: -i isss’-s’-sssr.
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[9] “As a result, the substantive legal frame of all agreements and operations
relevant in the present trial is State Y Law.
[10] “Of course, in a relationship based on a joint-venture agreement and
consisting mainly in financing and managing a company, the primary source
of obligations is the joint-venture contract and the statute creating and organiz¬
ing the company. This general principle is recognized in State Y Law which
I acknowledges, as a rule, the primacy of the specific agreements in matters of
private transactions and especially in matters of companies. These agreements
must be interpreted in accordance with the Civil Code of State Y and State Y
Law on Commercial Companies. As it will be seen, State Y Law on Foreign
s Investments, which was regularly referred to in the Parties’ agreements, is also
relevant.”
II. INITIAL OBLIGATIONS
1. Definition
[11] “Besides Art. 2 [setting out the purpose of Company X], the Contract
foresees, especially, the following clauses related to the object of Parties’
obligations:
‘Article 6
After the registration of the Company according to State Y Company Law,
the Parties shall make every effort to ensure that an output volume of
approximately US$ ... is reached within not more than 15 months. The
Parties shall agree between themselves on the production programme and
shall plan the further expansion of production.
Article 8
The amount of the Statutory Capital shall be amount Z composed as fol¬
lows:
The State Party shall provide ... ;
The Foreign Party shall provide. . . .
Article 9
The State Party shall include in the calculation of its share buildings, instal¬
lations and other material value, use of rights in industrial property and
monetary resources and the right to use land, water and other natural
resources.
! Article 13
The land used by the Company shall be made available by the State Party as
part of its contribution on the Statutory Capital.
!ÿ Reprinted from the Yearbook CommerciaTArbitration 185

¡L
Article 15
The Company shall have the right of complete control over its Statutory
Capital after it has been contributed by the Parties. The parties to the
Company shall not have separate rights [on] individual objects forming
part of the property of the Company, even if they were brought in by a
party as a contribution. . . .
Article 23
The State Party shall assist the activities of the Company by:
— securing the Company the ownership of selected buildings, installations,

equipments and other material value and the the use of available
access to
infrastructure and gas, water and energy supply at contract price;
- equipping the Company with the sufficient number of connections for
telephones to enable it to maintain direct business communications;
— carrying out customs procedures connected with export and import
operations.
Article 29
In the event that one of the parties fails to comply, or to comply properly,
with its obligations under this contract, it shall be under a duty to com¬
pensate the other party for any losses caused by such non-compliance or
improper compliance.’
[12] “In addition to Art. 6, which is identical to Art. 2 of the Contract, the
Statute contains the following provisions which have relevance as to Parties’
obligations:
‘Article 5
The Company shall meet its obligations with its own funds. ...
The sale of the products of the Company should contribute to ensure the
inflow of foreign currency needed both for the Company’s requirement
and for transfer of foreign partner’s profits.
The Company shall carry on its activities on the basis of full cost account¬
ing, self-financing and self-support, also in foreign currency in accordance
with the current and long term plans of the Company. ...
Article 8
Each partner shall have the following principal obligations:
- To provide the necessary expertise and data within its particular control
for the Company to develop a business plan for the advancement of the
operations of the Company;

■
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- To perform the other duties required by the Statute for the fulfilment of
the purpose and objectives of the Company.
Article 10
.... The Company shall manage its own assets and shall be entitled to the
right of using and possessing these assets in conformity with the purpose
and objectives of its operation.
The Company enjoys the rights of protection of its property in compli¬
ance with relevant State Y legislation.
Article 11
.... The State party shall provide:
- in kind [a certain sum] in form of buildings and equipment ....
The State Party shall include in the calculation of its share buildings,
installations and other material value, use of rights in industrial property
U. and monetary resources and the right to use land, water and other natural
resources.
Article 13
The Company shall have the right of complete control over its Statutory
Capital after it has been contributed by the Parties. The parties to the
Company shall not have separate rights [on] individual objects forming
part of the property of the Company, even if they were brought in by a
party as a contribution.’
[13] “. . . . As it results in a fully convergent manner from [letters of the parties

and documents] or indirectly from the records of an extraordinary general
assembly of Company X, the Parties to the Contract and to the Statute had
initially set the contribution in kind of the State partner in different agreements
and decisions. ... It had thus been set that the contribution of the State partner
would inter alia consist in putting at the disposal of Company X and under its
management a certain amount of hectares of agricultural land; this contribution
was also meant to consist in organizing the sowing of wheat for 100 ha, of stover
[grain for fodder] for 150 ha, of vegetables for 30 ha, as well as the exploitation of
9 ha of greenhouses; it included selecting workers for the building up of teams
(250 and 600 persons), the working conditions having been agreed on according
to a business plan; this contribution was moreover meant to include buildings
for the offices of Company X, as well as some other immovable properties
(workshops). It results from the same documents and, in coordination herewith,
from the contract (Art. 8), the Statute (Art. 11) [and] the registration of
Company X as a limited liability Company .. . , that the contributions had to
L be performed to Company X no later than a certain date.”
!..
i
I Reprinted from the Yearbook Commercial-Arbitration 187
2. Non-fulfillment
[14] “It appears that the obligations as to the contribution were not complete¬
ly fulfilled by the State partner. It results from the aforementioned documents
that:
(i) only 174 ha had been sown (70 for wheat, 100 for feed, 4 for vegetables);
(ii) even sown hectares were not at the disposal of Company X because they
were occupied by peasants not working for the Company;
(iii) other hectares were used by pasturing beef cattle of private persons;
(iv) only 2/3 (6 ha) of the greenhouses had been put in cultivation;
'
(v) the workshops were occupied by protesting wives of workers;
(vi) the offices were used by the personnel of the State partner or of the
Municipality;
(vii) pieces of land (parcels) meant to be part of the capital contribution in kind
were claimed by private persons;
(viii) the selected workers were not working (on strike or working for private
purposes) ... ;
(ix) the planned teams had not been built up (mistakes existed in the listings
provided for by the State partner; the announced specialized workers did
not exist).
[15] “On their side, the Claimants had provided a contribution in cash and in
goods, the value of which was then evaluated to amount to a certain sum. This
amount is inferior to the amount agreed on for their contribution. However,
neither Company X nor the State partner did complain in any manner about the
fact that this amount was inferior to what had been foreseen.
[16] “It must be repeated at the present stage that the evidence of (the partial)
nonfulfillment by the State partner is clear and convincing. Notably, it is
contained in a letter which is signed also by an administrator representing
the State partner. This letter clearly presents the facts in a detailed manner
and resolutely characterizes them as (partial) non-fulfillment of the capital
contribution. The exposed facts and their characterization as (partial) non¬
fulfillment are not contested in any manner by Respondent in the following
correspondence.
[17] “This characterization is legally well-founded. The obligations have
clearly not been completely fulfilled. Not only had the contribution in kind
not been completely performed. But also, the obligations provided for in
Arts. 13 and 23(1) of the Contract (securing the ownership of selected buildings,
infrastructure, equipment etc.) must be considered as not having been

:!

completely fulfilled. As well, given the objectives assigned to the Company in
I the Contract, the non-performance of the basic contribution implied the
tí infringement of other obligations, which appeared out of reach (see Art. 6 of
g the Contract, its Art. 23(2) and (3)).”
:
V
a. Force majeure
[18] "However, non-performance does not mean in itself that one must admit
the liability of the State partner towards the foreign partner, or towards
Company X. Indeed, the (partial) non-fulfillment obviously results from several
factors, some of which could prima facie appear as having causes other than the
lack of willingness of the State partner to perform or even as being seriously
beyond the control of the State partner. Therefore, first of all, it must be exam¬
ined whether some irresistible events, amounting to force majeure, impeded the
■3' State partner to perform. Indeed, the Contract excludes the liability if a partner
can invoke such an event (see Arts. 31-35). Only if it cannot be established that
I" the non-fulfillment was not excused by circumstances of force majeure, the
other possible objections or exceptions would need to be examined (notably:
whether the subsequent agreements as to the reduction of capital suppressed, at
least impliedly, the liability; if no, whether the substitution of the original
partner by Respondent excluded the liability for events occurred before said
substitution; if not, whether the claims have fallen into desuetude); and only if
the liability were finally admitted, the Arbitral Tribunal would have to calculate
the injury and damages.
[19] “The regime of liability for non-performance chosen by the Parties in
Art. 29 of the Contract for the principle (non-compliance with obligations
creates liability), and in Arts. 31 to 35 for the excuses (force majeure), slightly
differs in its system from the ordinary statutory regime. State Y law foresees a
regime where fault is the ground of contractual liability, but is presumed in case
of any default in performance ... ; besides, State Y law excludes liability in cases
‘where the performance of the obligation of one party [has] turned out to be
impossible without being the fault of any of the parties’. Impossibility is
however of no excuse ‘when the performance of the obligation has turned
out to be impossible for the fault of the debtor’; in this case, ‘the creditor has
the right to request from him the compensation for the caused damage’; ‘the
debtor is culpable, when intentionally or because of carelessness [it] has created
circumstances making impossible the performance of the obligation or if he did
not take measures to prevent it’.
[20] “If one supposes that these two regimes lead to different results, which
cannot be excluded prima facie, the question of the coordination between them
should be examined. The coordination between the liability regime provided for

in the Contract and the statutory regime is explained in the statutory law itself:
the law prohibits the limitations of liability (‘Any agreement that dismisses or
limits the parties from the responsibility of the non-performance of the obliga¬
tions is not valid’); in the same spirit, the law allows the parties to exclude from
the excuses non-faulty impossibility (‘when performance ... is impossible . . .
without . . . fault, each [partyj does not have right to require . . . compensation
of the damage, unless . . . in the contract is provided otherwise’). This means that
agreements providing for a liability regime stricter for the nonperforming debt¬
or are valid.
[21J “State Y liability regime is a minimum standard. The coordination
between the statutory liability regime and the contractual liability regime pre¬
scribes the Arbitral Tribunal to examine first of all if their liability must be admit¬
ted according to the regime provided for in the Contract; if such a liability has to
be denied, the Arbitral Tribunal will examine whether liability must nevertheless
be admitted according to the statutory rules of State Y law. As it will be seen infra,
in the present case, the two regimes lead anyway to identical results.
[22] “The Contract provides inter alia:
1
Article 29
In the event that one of the parties fails to comply, or to comply properly,
with its obligations under this contract, it shall be under a duty to com¬
pensate the other party for any losses caused by such non-compliance or
improper compliance.
Article 31
The Parties shall be exempt from the effects of partial or total non-
compliance with their obligation under this Contract if such non-
compliance was the consequence of circumstances of force majeure arising
after the conclusion of the contract as a result of extraordinary events which
a Party could neither foresee nor avert by reasonable means. The expression
“circumstances of force majeure” applies to events which are beyond the
Party’s control and for whose occurrence it is not responsible, for example
earthquake, flood, fire.
Article 33
The Party which is unable owing to circumstances of force majeure to
comply with its obligations under this Contract shall make every effort,
with due regard to the provisions of the Contract, to make up for such non-
compliance as quickly as possible.’
[23] “As it is clearly established, as described supra, the State partner has failed
to (completely) fulfill its obligations. Non-performance being so established in

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fact, the burden of the proof that non-performance be caused by force majeure
lies on its side. If the file does not contain corresponding evidence, either in
Claimants’ or in Respondent’s exhibits or explanations, the Arbitral Tribunal
cannot admit the existence of circumstances of force majeure excluding the
liability.
[24] "In the present case, as to circumstances of the relevant time, it is obvious
that third parties (workers, their wives, peasants, who cannot be considered as
the State partner’s auxiliaries, whose behavior could be imputed to the State
partner) played a role in the disturbance and default of performance. However,
Respondent has not clearly alleged or explained that (or why) the behavior of
lir these third parties was impossible to prevent by reasonable means or irresistible.
The file contains absolutely no convincing evidence thereof. Moreover, the file
does not contain any allegations or explanations about any efforts made by the
State partner to avoid the occurrence of the third parties’ behavior; a fortiori, one
must acknowledge that no proof was presented to the Arbitral Tribunal explain¬
I ing that all reasonable means to avert it had been used, which would have sup¬
posed a description of the reasons why reasonable means were not sufficient and
why sufficient means would have been unreasonable. For these reasons, even if
non-performance does not exclusively originate in the direct abstention of per¬
formance by the State partner but also in disturbance by third parties, it cannot
be admitted that non-performance was caused by circumstances of force
I; majeure according to Art. 31 of the Contract.
[25] “The fact that the Arbitral Tribunal does not ignore the unstable political,
social and economic situation of State Y at the relevant period, and therefore the
difficulties for performing agreed obligations, does not allow it to change the
fô; notion of contractual obligation and the concept of force majeure and to con¬
I sider that the State partner was liberated simply because of the social unrest in
this country. Otherwise, any obligation in State Y at this time would have to be
considered, eo ipso, as subject to force majeure (which would prevent Law to be
an instrument of stability or contributing to stability). Nobody forced the State
e Y partner to agree on the obligations provided for in the Contract after negotia¬
tions. Once it had agreed to be bound on such obligations, it could not be
liberated from them simply because of the general situation in State Y.
I- [26] "Even if one admitted that the circumstances described at the relevant
time were in themselves irresistible, i.e., impossible to avert by reasonable
means, it was neither clearly alleged by Respondent, nor - above all - proven
that these circumstances were unforeseeable for the State partner. Before enter¬
ing an obligation, everyone must, before, be certain that he has the ability to
perform it. If he has or must have the slightest doubt about his ability to perform
at the given time, he must make all necessary verifications before promising
performance. The [original] State partner was a regional public entity. It

£
could only be aware of the social climate and forces in its own region and of the
corresponding difficulties of ensuring performance.
[27] “In such a contract between a state partner and a foreign partner, the
foreign partner legitimately relies on the national public partner as to questions
as the social climate and forces in the concerned region, that the foreign partner
cannot estimate properly (this arises clearly out of the principle of good faith,
which is central in State Y contract law ... ; impeño rationis, one can refer as
well, per analogiam and a fortiori, to UNIDROIT principles of international
commercial contracts, 1994, Art. 6.14 et seq., with reference to the role of a
national contracting party, even not public). If such a national public partner
promises by a contract that defined obligations will be performed, its foreign
partner can only have the expectation that it will be done so. That is to say that
the national public partner has a strict legal duty to check that performance will
be possible at the promisedrtime, taking also into consideration the social climate
that the foreign partner cannot estimate properly; if it has not made the
necessary verification, it must bear all consequences towards its foreign con¬
tractual partner.
[28] “In the present case, there is no clear evidence - and even no clear
allegations - that the social climate had completely changed, in an unpredict¬
able way, between the time of negotiations and the time of performance. It would
have been the duty of the State Y partner to ensure that the regional social forces
would not disturb performance of its contribution, by checking and, if necessary,
negotiating seriously with them before concluding the contract and entering the
obligations. In the present case, the non-performance being almost total, it cannot
be excluded that the organs of the State partner at the moment of concluding,
knew the difficulties and decided not to disclose them to ensure the perfor¬
mance of the foreign partner’s contribution before the latter noticed the diffi¬
culties. However, this will not be discussed, since it would not change the
outcome in any way. The existence of force majeure must be denied for
the only reason that it has not been proven that the State partner could not foresee
the circumstances that did not depend on it. Consequently, the Arbitral Tribunal
must admit that the conditions of Art. 31 for excusing non-performance are not
fulfilled.
[29] “Since the proof is not made that these circumstances were neither fore¬
seeable nor avertable, it is not necessary to examine whether the concept of force
majeure chosen by the Parties, which is exemplified in Art. 31 only by natural
catastrophes (‘earthquake, flood, fire’), excludes human behavior as possible
events of force majeure (such as strikes, occupation of buildings or fields by
third parties).
[30] “Some comments can nevertheless be made for information. In a contract
between a national public entity and a foreign partner, such exclusion would not

■!
î
I
be unreasonable, since the foreign partner has no possibility to check whether
such behaviors of said third parties - who are persons of the same region as the
state partner - really are irresistible and uncontrollable for the latter (given the
proximity between it and these third parties and its possible influence on them
or, at least, the possibility for it to predict sufficiently early their behaviors).
Therefore, the exemplification contained in Art. 31 could be considered as suf¬
ficiently precise and clear in order to exclude from the Parties’ concept of force
majeure the behavior of third parties from and in the same region as the State
partner. Such interpretation would only come to the same result as the conclu¬
sion explained supra and, accordingly, reinforces it.
[31] “Subordinately, the Arbitral Tribunal has to recognize that, according to
>ÿ the available evidence, the behavior of the State partner does not comply with
the obligations provided for in Art. 33 et seq. of the Contract. Even if one had
admitted that circumstances amounted to force majeure - which, clearly, cannot
be admitted - it would not be possible to exclude the liability: indeed, it has
neither been proven that the State partner did ‘every effort’ to make up for non-
compliance. In particular, the agreement on reduction of statutory capital and
the discussions [to settle the disturbances] cannot be considered as evidence that
every possible effort had been made to overcome the circumstances. The impor¬
tance and meaning of this agreement will be discussed infra.
[32] “The liability of the State partner being uncontestable under the liability
regime provided for in the Contract, it is not necessary to examine whether
liability would also exist according to State Y law, which only imposes a minimal
standard of protection for the creditor and does not prohibit stricter regimes (see
supra). Nevertheless, it is obvious that it has not been proved that the non¬
performance by the State partner was not caused by its fault; therefore, liability
would have to be admitted also if the regime of the law of State Y were applied.
Moreover, even if impossibility of performance would be admitted, it would be
necessary to recognize that it has not been proven that the State partner had not
been able to foresee the impossibility, so that, consequently, its promise would
have to be considered itself as a fault (imperitia culpae adnumeratur).”
b. Impact of reduction of statutory capital of Company X
[33] "It must now be examined what influence the agreement on the reduction
of the statutory capital of Company X had on the described liability of the State
I partner.
[34] “In an extraordinary general assembly of the partners of Company X, the
State partner and the foreign partners decided to reduce the capital, the new
capital amounting to 63.42% of the initial capital, the contribution of the State
partner remaining approx. 40% of the total statutory capital. An. 8 of the
I
Contract and Art. 11 of the Statute were accordingly modified. As it results from
the correspondence exchanged, the contribution of the State partner consisted
from then on:
(i) in putting at Company X’s disposal 219 ha of agricultural land (taken

from various state farms) instead of 600;
(ii) the offices of the enterprise;
(iii) 9 ha of greenhouses;
(iv) 2 warehouses.
[35] “The contribution so set was referred to in the records of the extraordi¬
nary assembly of the partners of Company X. There is therefore no doubt as to
the reduction of the capital contribution of the State partner, the non-perfor¬
mance of which had generated the aforementioned protests of Company X and
of the foreign partners. The contribution so set constituted from that point
forward the contribution due in natura by the State partner. However, as to
the liability generated out of the non-performance of the contribution initially
set, the general assembly records do not at all contain an agreement on its
suppression.
[36] “In the particular context, such a suppression cannot at all be presumed as
impliedly agreed simply because a modified contribution has been set for the
future. Indeed, the new setting of the contribution was clearly discussed in the
correspondence between Company X, Claimants’ representative(s) in said
Company and Respondent as an instrument for immediately getting out of
a disastrous situation where the planned activity was entirely impossible; all
documents produced insist on the very high time pressure (which is especially
understandable in the concerned branch of activity, where many steps had to be
taken - and therefore previously at least momentarily decided - before the end of
spring). In such a context of emergency, the discussions and decisions could not
aim to deal with the questions of liability and compensations for the already
occurred non-compliance with the contracted obligations. Understandingly,
this question was never mentioned in the correspondence of this period, since
all involved protagonists had to work on the elaboration of an immediately
achievable solution for starting the activity of Company X, saving the existence
of the large scale development project it embodied and not losing all investment
already made by the foreign partners.
[37] “From a legal point of view, it can be said that the attitude of Respondent,
negotiating and deciding for the State partner, and its proposals were a way of
trying to reduce the damage already occurred in its principle. From a contractual
point of view, it can be considered as a tender of performance non conforming to
the contract. The acceptance by the creditor of such a tender can appear
necessary not only from a practical point of view, as it was the case at this

J

time where it seemed urgent to find an immediately achievable solution, but also
from a legal point of view, since it is generally acknowledged in the European
legal systems that the aggrieved creditor has a duty to mitigate the damage (in
State Y Law, this derives from the possibility of the creditor to obtain compen¬
sation for the expenses made to prevent or diminish the damage; see also, nota-
bly, Art. 9.505 of the PECL: ‘The non-performing party is not liable for loss
suffered by the aggrieved party to the extent that the aggrieved party could have
reduced the loss by taking reasonable steps’).
[38] “Therefore, the acceptance, by the foreign partners, of this tender not
conforming to the then valid agreements at this time clearly cannot be consid¬
S-
ered as a renouncement to the State partner’s liability already arisen; this accep¬
tance had the sole meaning of reducing prospectively the obligation in natura
(‘specific performance’) as to capital contribution of the State partner (i.e., for
the future), without affecting the possible liability already arisen and not dis¬
cussed at this time (as a much less urgent matter). The rule according to which
acceptance of a tender of performance non conforming to the contract does not
imply a renouncement to a liability already arisen, is generally admitted (espe¬
cially, State Y law, pertaining to the tender not conforming to a contractual
obligation, does not provide for such a renouncement in case of acceptance;
this understanding corresponds - a fortiori - to the meaning of the rule
contained in Art. 9.401(1) and (3) of the Principles of European Contract
Law: ‘A party who accepts a tender of performance not conforming to the
contract may reduce the price .. . [and] remains entitled to damages for any
further loss it has suffered so far as these are recoverable’; this is in fact nothing
else than the general compensation rule of State Y law).
[39] “The factual probability that, if the activity of Company X from then on
had been satisfactory even with the reduced capital contribution, the foreign
partners would not have actually requested compensation, does not change
anything to the existence of the State partner’s liability.
[40] “Moreover, the modification of the Articles of the Contract and of the
Statute was limited to the reduction of capital (which is in itself prospective and
not retroactive), but did not affect the other obligations, which were equally
infringed (see above). So, these obligations were not restricted (even if such a
restriction would not have a retroactive effect without a specific agreement on
h the renouncement to liability).
[41] “Besides, the aforementioned constructive approach is confirmed in fact
by the circumstance that, after the reduction of capital contribution decided at
the partners’ assembly, the representative of the foreign partners continued to
complain about the fact that the initial capital contribution of the State partner
consisting in putting at Company X’s disposal 600 ha had not been completely
. fulfilled. This confirms that, being aware still of the non-compliance of the State
*?
partner with the original contractual agreements, he did not consider that this
initial non-compliance was an issue definitively closed and forgotten since the
extraordinary assembly.”
c. Conclusion
[42] “As a result, all conditions examined up to this point for the liability of
the State partner have to be considered as fulfilled. As explained supra, it still
remains to be examined whether the substitution and the overtaking of obliga¬
tions excluded these of the original partner’s liability which would be, conse¬
quently, not opposable to Respondent; if this had to be denied, it should still be
examined whether the right of claiming damages has fallen in desuetude. These
points will be examined infra, since, as it will be seen, other acts of non-compliance
with the contractual obligations were perpetrated by the State partner after
the reduction of the capital contribution but before the date at which substitu¬
tion is absolutely certain.”
III. OBLIGATIONS ARISING OUT OF THE AGREEMENT

FOLLOWING THE ASSEMBLY
1. Definition
[43] “The newly set contribution of the State partner consisted henceforward:
in putting at Company X’s disposal 219 ha of agricultural land (taken from
various state farms) instead of 600, in the property of the offices 'of the enter¬
prise’; in the property of 9 ha of greenhouses; in the property of 2 warehouses.
Simultaneously, it was agreed that the share corresponding to the value of the
greenhouse complex (approximately the half of the part of the State partner after
the reduction of capital) would be transferred from 'the State governmental
shareholder to the group of ex-workers of the greenhouse’. The idea of
providing the workers with assets (especially with the property of the land)
had been presented by Respondent as a means to improve the cooperation
between the persons working for the joint-venture and the latter; such transfer
would ensure the possibility for the Company to efficiently obtain fruitful
results out of the investments made.”
2. Non-fulfillment
[44] “As it results from the documents submitted by the Parties, the reduced
capital contribution which had been set at the assembly was not performed by
the State partner.

[45] “The representative of the foreign partners explained to their
Ambassador in a detailed report the non-performance of said contribution.
His complaints are repeated in the records of the partners’ assembly of
Company X, held one year later, where he explained that the Company suffered
losses; these losses originated in the State partner’s ‘lack of correctness’, which
had not achieved its capital contribution: the records establish that the State
partner’s representative admitted that the situation was indeed affected by the
problems that the foreign partners’ representative had described. The State part¬
ner’s representative explained simultaneously that everything possible would be
done to fulfill the non-performed contribution within 30 days and agreed to all
proposals made by the foreign partners’ representative. At the end of the part¬
ners’ assembly, it was formally decided that the State partner’s representative
would provide the Company with the answers on the following problems,
within 30 days:
«
(a) physical restitution of the greenhouses complex;
(b) restitution of the assets and tools belonging to Company X blocked in the
greenhouses, the listing of which was attached to the records of the assem-
bly;
(c) restitution of pieces of land (parcels) which had been planned to be used for
the realization of an agroindustrial zone;
(d) registration of property of the second workshop (2 compartments);
(e) the total liberation of the Central Palace.
[46] “In the complaints sent to the Ambassador of the state of the foreign
partners, it had been detailed that the offices were occupied because of third
parties’ claims; the occupation of the greenhouses by the ex-workers had even
lead to the deprivation of tools ([trucks] and other agroindustrial vehicles, etc.)
which had been a part of the capital contribution made by the foreign partners;
the second workshop had been sold by Respondent to a family, so that the
Company, looking for practical ways of continuing its activities, had to rent
some new quarters, while different parts of the equipment deposited in the sold
workshop was damaged, destroyed or robbed by third parties; the land put at
Company X’s disposal, consisting in ‘189 ha of [sand] instead of 600 ha of good
land promised’ was occupied by ‘thousands’ of sheep and cows, which pastured
on [planted] fields, although an armed security service had been organized by
the Company, which remained impotent as long as the political forces and the
police remained inactive; moreover, the zone of 9 ha planned to be used for the
setting up of agroindustrial infrastructures had been, distributed to private
persons.
! Reprinted from the Yearbook Commercial Arbitration 197

[47] “Respondent had itself directly various contacts with the foreign part¬
ners’ representative and with their Ambassador. The latter protested in a letter
against the fact that Company X was still deprived of the possession of the
promised items of the capital contribution. After a partners’ assembly, where
the representative of ‘the State Y partner’ promised to lodge within 30 days the
latter’s written position on the problems mentioned in the assembly decision, a
copy of the records was given to Respondent, in the person of the Vice-Minister.
A short time later, the legal assistant of the Ministry of Agriculture and the
financial assistant had a meeting with the representative of the foreign partners.
In a letter a month later, the representative explained that he did still not have
received the position of Respondent which he had requested in this meeting to
be communicated within a few days. He mentioned that he had asked his law¬
yers to request the ICC arbitration to be started in Geneva, as agreed in the
Contract and repeatedly explained that the performance of the capital contri¬
bution by the State Y partner had not been completed. Again a month later, the
foreign partners’ representative and representatives of Respondent had a meet¬
ing; according to a letter sent by the foreign parties to the Minister, they dis¬
cussed the practical possibilities of completing performance of the capital
contribution due by the State Y partner and a compensation for the damage
suffered by Company X. In this letter, the representative of the foreign partners
repeatedly mentioned the fact that the capital contribution of the State Y partner
had not been performed.
[48] “A few months later, the Parties signed a Memorandum of
Understanding. The file does not contain evidence that, in the described period
which lasted for more than two years, Respondent challenged that Company X
was actually deprived of the assets to be delivered to it as the State partner’s
capital contribution, although this deprivation was repeatedly mentioned in the
foreign partners’ protesting letters; as well, Respondent did not challenge the
expressed (even insisted on) characterization, by the foreign partners, of this
deprivation as a non-performance of the State partner’s capital contribution. If
Respondent had then considered that these facts were not real, it would have
protested against such depictions. As far as it results from the produced
evidence, this was not the case, although Respondent had more than two
years to do it. If protestations of Respondent had been made then, they
would most probably still exist in its records. Respondent would have easily
produced them in the present procedure. As a result, the fact that the State
partner was communicated the deprivation depicted by the foreign partners
and its characterization and did not challenge it leads the Arbitral Tribunal to
consider that the reduced capital contribution agreed at the assembly remained,
at least substantially, unperformed.

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[49] “The circumstances which resulted in the non-performance of the obli¬

g gations existing from the date of the assembly (reduced capital contribution and
i obligations like those provided for in Art. 23 of the Contract, see supra), were of
r
ii
similar nature to those which had led to non-performance of the initial obliga¬
tions. Disturbance by third parties is obvious, but there is no evidence that it was
impossible to avert, nor that it was unforeseeable. On the contrary, the file does
not even contain a description of the efforts made by the State partner to avert it.
p. The proof that the disturbing events were unforeseeable is equally absent. The
State partner should have checked its ability to perform before promising the
iff. performance of even a reduced capital contribution. For legal grounds referred
I:
S :
to in relation with the non-performance of initial obligations and are relevant
mutatis mutandis to decide on the questions of the burden of the proof and of the
existence of force majeure, the State partner’s liability for the non-performance
of the obligations existing after the assembly must be admitted. The meaning of
r: Æ! [subsequent] agreements and their influence on the liability, as well as the extent
of the substitution of the initial State partner by Respondent will be examined
infra, as well as the question of the desuetude.”
IV. OBLIGATIONS UNDER THE MEMORANDUM

OF UNDERSTANDING
1. Definition
[50] “The discussions and negotiations held by Respondent and the foreign
partners after the partners’ assembly led to the Memorandum of Understanding
(MOU). As it was considered in the interim award, ‘in this document, the
Ministry of Agriculture, acting in its quality of “State Y partner”, notably
I designates the premises and land which are part of the State partner’s contri¬
bution in kind to the capital of the Company, and thus behaves as a partner in
Company X’.
(....)
[51] “The question whether this agreement suppresses the liability already
arisen until the date of the MOU can be resolved in a way similar to what
was explained as to the influence that the decision taken at the partners’ assem¬
bly had on the liability already arisen before this date. The Parties’ will expressed
in the agreement clearly relates to the new setting of the State partner’s capital
contribution. It sets the obligations to be performed in kind in the future. The
agreement does not mention any renouncement by the foreign partners to their
rights related to their State partner’s liability already arisen. This circumstance
'X: would be enough to deny any renouncement by the foreign partners. Indeed,
such a renouncement cannot be presumed and would be impliedly possible only

I
if other elements clearly indicated such a will of the foreign partners, which is
not the case.
[52] "Moreover, the contract contains, just before the signatures, the clause
according to which the Parties declare that - after due fulfillment - they consider
to have solved their problems as far as their respective capital contributions are
concerned. This tends to exclude any other questions, such as liability for pre¬
vious non-compliance with the contract. Once again, the factual probability
that, if the Company had been successful after the date of the MOU, the foreign
partners would not have sued Respondent for liability (see supra) does not
change anything to the interpretation that must be given to the agreement
and that must of course be based on the situation at this date.
[53] “Besides, the paragraph where the aforementioned clause is contained
starts with the expression ‘after fulfillment of the promises classified in Nos.
1 to 5 above’. So, even if one had admitted a renouncement, one should still
examine whether this capital contribution fixed in Nos. 1 to 5 of the MOU has
actually been performed. On this question, see infra.
[54] “Respondent substituted itself to the original State Y partner by different
acts that constitute a process that lasted for some time and is easy to understand.
In its principle, the substitution has already been admitted in the interim award
rendered by the Arbitral Tribunal. It is obvious that the substitution was for¬
malized latest on the date of the MOU, where Respondent presented that it was
‘acting in its quality of State Y partner’. It is possible that the substitution was
made before the date of the MOU, since Respondent was already for long the
state entity to which the Company and Claimants complained and with which
they discussed and negotiated; the representative of the ‘State Y partner’ in the
Company was from long named by decision of Respondent (or power of attor¬
ney issued by it). Such a substitution could have happened also without being
formalized and expressed in plain words (see relevant provision in State Y law)
as it was on the date of the MOU. ... As it will be seen, in the present case, the
consequences of the substitution do not depend on the exact date at which it
takes place.
[55] “The substitution to be examined is a replacement of an original party by
a new party. When no particular statutory provision foresees it, this process
consists in a combination of transfer of rights and transfer of obligations. The file
contains not the slightest indication that the substituted party opposed in any
manner the necessary transfers, and one does not see the interests that it would
have to have done so, given the fact that its position consisted predominantly in
liabilities. Moreover, even an opposition would not have impeded a new party
(Respondent) to entering obligations for the benefit of the foreign counterparts,
which obviously accepted to deal with Respondent as their contractual partner

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! CASE NO. 12112 ARBITRAL AWARDS
(such an opposition would simply have had an effect on the transfer of the initial
State Y partner’s rights, which are not at stake in the present litigation).
[56] “As a rule, a substitution of a party in the contract by a new party consists
in transferring all rights and obligations, without differentiating between the
different obligations. The substitution is global. This is a logic consequence of
the rule that, normally, the original party is completely discharged of the obli¬
gations binding on him (see e.g., Art. 12.201 (‘transfer of a contract’) of the
PECL, para. 1: ‘A party to a contract may agree with a third person that that
person is to be substituted as the contracting party. In such a case the substitu¬
tion takes effect only where, as a result of the other party’s assent, the first party
,r. is discharged.’; this is only the generalization of the rule applicable to the transfer
of debt, which is known in State Y Law . . . ).
[57] “The foreign partners having consented to the substitution, this consent
normally meant the discharge of the original State Y partner and the latter’s
:: replacement with Respondent. Nothing indicates that the foreign partners paid
attention to the possibility of keeping the original State Y partner, being then in
liquidation, as their debtor; the name of the original State Y partner is even
completely omitted'in the exhibits produced for the period leading to substitu¬
tion. Therefore, it must be admitted that the substitution was ordinary and,
accordingly, completely discharged the original State Y partner. There is thus
no need to distinguish between the different obligations that Respondent
entered into by substituting itself to the original State Y partner.
[58] “The same conclusion results from an attentive analysis of the Parties’
interests and of the requirements of good faith. This allows first to examine
whether Respondent only substituted itself as partner in the Statute, entering
therefore only the obligations related to the capital contribution, or also as
contractual partner entering the obligations provided for in the Contract (nota¬
bly Art. 23 and the regime of responsibility provided for in Art. 29 et seq.).
[59] “The Ministry of Agriculture was involved in the discussions and
attempts to solve Company X’s problems almost from the beginning. Even
before the Company was created, Respondent had to issue an authorization
allowing the original State Y partner to become a partner of the joint-venture.
To do so, it could only know with precision the situation at the moment of the
creation of (he Company; it could not ignore that, besides the Statute, a Contract
between the partners also contained obligations. Moreover, in the present Joint-
Venture, contrasting to what may frequently happen (cf. Linklater&Paines/Ch.
Nightingale, Joint Ventures, 1st ed., 1990, p. 49 et seq.), the Contract was com¬
pletely disclosed: it is mentioned in Arts. 2 and 40 of the Statute; its modifica¬
tions were mentioned in the Assembly of partners (which was written down in
the minutes of the partners’ assembly of that day and, accordingly, could only be
present in the records of the Company); Respondent has not alleged not to have
known the content of the Contract and the obligations arising out of it.
I
Reprinted from the Yearbook Commercial -Arbitration 201
[60] “Therefore, there is no doubt that, assuming the position of the ‘State Y
partner’, the Respondent has assumed prospectively all obligations of ‘the State
partner’ towards Claimants, i.e., as to all prospective obligations. Thus, as to
performance and duties of care, Respondent was obliged as of the date of the
MOU as the original partner would have been; the same regime applied hence¬
forward. If any obligation of the State partner, in whatever contractual instru¬
ment (Statute or Contract) it may be provided for, has been breached after that
date, it cannot be challenged that Respondent is liable.
[61] “It remains to be seen if the substitution excluded the obligations con¬
sisting in the liability for the non-compliance with the contractual obligations
perpetrated by the original, substituted State partner. In other words, the
question is whether such compensation obligations must be treated differently
as other obligations.
[62] “To determine the legal meaning of Respondent’s behavior and state¬
ments in and before the MOU, all circumstances . . . and the requirements of
good faith have to be taken into consideration. .. . Under the point of view of
good faith, a good test consists in examining what the situation would be if some
rights arising out of the situation before the substitution were at stake. If, for
example, some dividends had to be distributed because the preceding years had
been fruitful, one hardly believes that the substituting partner would contest
having overtaken also the consequences of the substituted partner’s position, the
origins of which lie before the substitution. Besides, in a concrete perspective,
one must take into account the interests which motivated the intervention of
Respondent and, finally, its substitution to the original partner. Respondent was
not motivated by generosity, but by serious interests. The existence of the joint-
venture was interesting for the country and its government; especially, thanks to
the agroindustrial complex, it was likely to develop the agriculture and agroin¬
dustry in a region of State Y, or to initiate such a development on a large scale.
Promoting these achievements was an extremely important task for Respondent,
which as Ministry of Agriculture, was exactly in charge of the public interests
involved. It was logic that, by doing the contemplated act of private law (i.e.,
entering the contract by substitution), and expecting advantages as well in
quality of partner as in quality of guardian and promoter of the involved pro¬
moted public interests, it did not consider as something important to exclude the
liability arising out of already breached obligations (this also in regard to the
factual probability that, if the intervention of Respondent had really given place
to a restoration of Company X’s activity, the liability for already perpetrated
breaches of obligations would have been neglected by the foreign partners, as it
has been mentioned and discussed above; this question could only appear as
secondary while the Parties were fixing in detail the items of the capital contri¬
bution which was intended as the means to save the existence of the Company

- r.SJJr.-.,
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I;
and necessary to make it profitable). In other words, the intervention was not at
all a kind of judicial transaction where both Parties made mutual concessions -
what would then have understandingÿ included a renouncement to liability -
; but as a resolute commitment of Respondent to encourage the foreign partners
to continue their activity in State Y, because this presence and activity was
: important to Respondent - what makes an exclusion of liability simply appear
as an inappropriate topic.
[63] “Besides, good faith requires taking into account how the other party
could understand his partner’s behavior. Here, obviously, one must admit
-V.
that excluding the obligations related to liability already arisen would have
made the situation more complex. The foreign partners would have needed to
distinguish between obligations already violated before substitution and those
violated afterwards, and to discuss with different interlocutors for settling the
a
consequences. All the more would this have been more intricate as the exact
moment of substitution is everything but obvious. Besides, the foreign partners
would not only have two different entities as interlocutors (to discuss with or to
sue) for the same complex of facts, all this in a foreign country, but also have one
of them in liquidation, which strengthens the complexity. Such a situation
would have been extremely tortuous. Since it seems clear that the substitution
could not have the purpose of making the situation more complex, the substi¬
tution agreements cannot have the meaning of impliedly excluding the obliga¬
tions related to the non-compliance already perpetrated.
[64] “Besides, if Respondent had requested to exclude the already existing
liability from its obligations of substituting partner, it would have been per¬
ceived by the foreign partners, almost ready to abandon their presence in State Y
after the tormented years, as the sign that the involvement of respondent was
ambiguous. It could only have been felt as lack of commitment. It would have
been insufficient to encourage them to persist in their activity in the joint-
venture which had so far generated considerable losses and disappointments.
[65] “The Arbitral Tribunal considers therefore that it was not the intention of
Respondent to exclude the existing liability from the obligations it entered into
as substituting partner. And the foreign partners would not have accepted this if
it had been the intimate intention of Respondent. Since Respondent could at
least not ignore this,-it could in no case, according to good faith, have considered
that the substitution excluded the liability already arisen. As a result,
Respondent is also liable for breaches of contract perpetrated before the
substitution.”
;
■
2. Non-fulfillment and Crisis in Neighboring Country
[66] “Claimants explain that the capital contribution was not performed, at
least that it was far from entirely performed. Indeed, in a letter written to the
delegation of an official international agency, the representative of the foreign
partners again complained about the non-fulfillment of the State Y partner’s
contribution and of various problems which are related to the lack of possibility
to use the assets and items constituting the capital contribution (the behavior of
third parties is involved, but the file contains no evidence that it was
unavertable. . . . Besides, the accounts of Company X tend to show that the
activity could not really evolve in the year of the letter and the following
year. Moreover, Respondent itself considered that Company X had to be ‘reac¬
tivated’; this can only mean that Respondent itself considered that the Company
was inactive. If Respondent’s behavior during the crisis in the neighboring
country were to be considered as a breach of contract, it would not be necessary
to decide whether its behavior since the years of the crisis also amounts to non¬
performance, because the consequences would be identical as to legal
consequences.
[67] “During the crisis, Respondent asked the foreign partners’ representative
about the possibility to have land used by Company X serving for helping
refugees. The representative answered that for humanitarian reasons, he con¬
sented to granting ‘a particle’ of the land used by the Company for a period of
time 'to be agreed on’. The next day, Respondent put the whole surface
of agricultural land used by Company X (usufruct beneficiary) at the disposal
of organs which had to build up refugee camps. The land was cemented and
cultivation on it became impossible.
[68] “Independently of the question of the legal aptitude of the involved per¬
sons, according to State Company law, to decide on the disposal of the land used
by Company X for its activity in favor of third parties, in a way which made this
activity impossible, it is important to examine whether the foreign partners’
representative gave a consent to such disposition: according to the rule volenti
non fit injuria, such a consent would be taken into consideration for judging if
the entities he represented have right to compensation for damages arising out of
the acts he authorized.
[69] "If one compares the fax message in which the representative expresses his
consent to a limited use of ‘some particle’ of the land used by Company X for a
limited duration, ‘to be agreed on’, with the use of the land which was actually
made, it is obvious that the actual use does not correspond to what had been
consented to by the foreign partners’ representative. It cannot be considered that
there was a consent which would impede any right of the foreign partners to
compensation.

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;• CASE NO. 12112 ARBITRAL AWARDS
‘ [70] “It remains only to be seen if Respondent breached the contract by put¬
ting the whole land used by Company X for its activity at the disposal of
Ir organizations which transformed it in such a way that this activity became
impossible. In itself, a flow of refugees can be considered as an event amounting
to force majeure. It can be admitted that it was not foreseeable. But Respondent
:
has not proven that this event implied to concede the whole land used by
Company X for the construction of a refugees’ camp. It has produced no
evidence and even no explanations as to the impossibility to have the camp
set up elsewhere (totally or partially), in particular as to the absolute unavail¬
ability of other pieces of land.
[71] “The land used by Company X for its activity, given in long-term usu¬
7
fruct, was a part of its capital contribution (Art. 13 of the Contract). According
to Art. 23 of the Contract, Respondent had the obligation to secure the own¬
ership of the items selected for the activity of the Company: this contract means
that the partners cannot just formally perform their contribution and ignore
-Î
whether and how it is then usable by the Company. Besides, given the quality
of national public partner and its position towards a foreign investor, the word
‘ownership’ (to be secured), in the definition of Respondent’s obligation, can
only mean the actual possession.
[72] “The reference to [State Y’s] Law on Foreign Investment, repeatedly
mentioned in the contract, is also relevant for its interpretation, as to the obliga¬
tions of a public partner whose behavior can easily correspond to the State acts
which the aforementioned Law purports to prohibit. This Law is thus useful for
interpreting the words ‘securing the ownership’. This Law assimilates direct and
indirect deprivation of property (or analog rights, as usufruct). A fortiori, the
practical (and total) deprivation of possession of such a right must be assimilated
to the formal deprivation. Therefore, the practical deprivation, made in what¬
soever quality by Respondent (as partner or as governmental body using public
authority), is clearly a breach of Art. 23 of the Contract. Moreover, the Statute,
as well as the Contract, clearly says that the assets cannot be disposed of by one
of the partners (Art. 15 of the Contract; Art. 13 of the Statute).
[73] “Acting without a corresponding consent of the foreign partners,
Respondent perpetrated a clear breach of the Contract by disposing of the
land used by Company X. This is true independently of the question whether,
formally, it would have been necessary to observe the requested procedures
provided for by the Statute and State Company law. It must be mentioned
that even Respondent, in a letter of the Vice-Minister, protested against the
completion of said act and characterized it as illegal. Since this event, the
Company had almost no activity. As a result, the liability of Respondent
must be admitted.”

!'
V. STATUTE OF LIMITATIONS
[74] “The Contract does not contain a regime of prescription. According to

the relevant provision of State Y law, the legal actions prescribe within 10 years,
if another time-limit is not provided for by specific legal provisions. The provi¬
sions contained in the Law on Commercial Companies, which have been quoted
by Respondent, do not apply to relationship between partners. They are related
to relationships involving the Company or organs of the Company (what the
partners are not: only the partners’ assembly is an organ). Even the Articles
related to the capital contribution do not regard the problems to be solved in
the present dispute.
[75] “Prescription is interrupted notably by an action brought before a court
of arbitration. Interruption means that a new term starts to run. Since the first
infringement of the contractual obligations between partners by the State
partner took place eight years before thé commencement of arbitration, no
action was prescribed when Claimants lodged the request for arbitration
eight years later. Given the interruption occurred then, no action can have fallen
in desuetude at this day.”
VI. DAMAGES, DISSOLUTION OF COMPANY X AND INTEREST
[76] “Claimants have the right to obtain directly damages from Respondent
based on the Contract, which creates, as explained above, obligations directly
between the partners. This is especially true in the present case, where the Parties
have expressly foreseen in their Contract the obligation of a partner to com¬
pensate the other in case of breach of obligations (Art. 29). Strictly speaking,
there is no necessity to proceed to the dissolution and liquidation of the
Company in order to allocate damages to Claimants for such breaches.
[77] “Of course, to ascertain the exact amount of damages, the liquidation
usually appears as a preliminary step. Indeed, the amount of the injury suffered
by one partner of a Company depends on the amounts that he can obtain from
the Company, this being true for the damnum emergens and the lucrum cessans.
However, as said, conceiving the liquidation as a preliminary step is only a
practical means for determining the damages to which a partner is entitled
because of his partner’s behavior, and not a legal prerequisite. If the Judge
can ascertain the damages to which a partner is legally unconditionally entitled,
without proceeding to liquidation, it has the duty to do it. In such a case, pro¬
ceeding first to liquidation would appear as pure formalism, legally unfounded.
[78] “In the present case, the Company to be dissolved and liquidated has had
no activity for six years and its activity had been almost stopped eight years ago.
The Parties have not explained with the slightest likelihood that Company X

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exercises any possession on any tangible asset. Thus, it must be admitted that, if a
liquidator were designated, he would have no practical possibility for obtaining
the recognition and realization of any right on any asset which would result in an
amount of money exceeding the costs of his own activity. This will be developed
infra. Anyway, in the phase of determining the damages due by a partner direct¬
ly towards the other partner, the Arbitral Tribunal must consider that the liq¬
uidation of Company X would not result in the realization of any valuable asset.
[79] “There is no doubt about Claimants’ right to request the dissolution of
Company X. According to An. 38 of the Statute, the Company shall cease its
x activity if 'when over a period of 5 years, the Company is not profitable’.
Company X has made no profit from the beginning of its existence.
According to Art. 38 of the Statute, Claimants had the right to obtain its liqui¬
dation years ago. The Arbitral Tribunal will therefore have to pronounce the
dissolution of Company X.
a- [80] “In the present phase of determining the damages, it must be therefore
considered that Company X will have no activity in the future and that its assets
are lost. All capital contributions and loans made by partners to the Company
are practically not recoverable. This is the present situation.
[81] "Ascertaining the damages supposes to compare the present situation
with the situation which would have existed if the behaviors generating liability
had not been perpetrated. This second situation is of course, consubstantially,
hypothetical. As a rule, in contract law, the creditor’s expectations out of the
fulfillment of contract must be compensated (see the relevant provision of State
Y law). In a long term relationship such as the cooperation in the creation of a
Company and its activity, these expectations cannot be established easily.
[82] “The present situation regarding Claimants is easy to ascertain: they will
not obtain any profit from Company X and all payments that they made to
Company X are lost. The situation which would have existed is more difficult to
establish. However, the assumptions that the Arbitral Tribunal can make are
sufficiently sure to ascertain the injury to be compensated, given the frame that
the Parties set to the compensation.
[83] “The Parties have agreed on the following clause in their Contract:
,
'Article 30
The expression “compensation for losses” shall be understood to mean
compensation for losses caused to a party (production expenses; loss of a
damage to property) by a break (sic) of this contract on the part of the other
f party: indirect losses and lost opportunities shall not be compensated.’
[84] “This text seems prima facie to exclude the lucrum cessans. Not only does
it exclude clearly Tost opportunities’, which are typically part of the lucrum
Í
I
cessans. But, also, it exemplifies the expression ‘compensation for losses’ with
the ‘production expenses’ and ‘damage to property’ which represent exactly
what the damnum emergens consists in. It is besides understandable that the
State partner had wanted to limit its liability as to the lucrum cessans, which can
often reach important amounts. Moreover, if one interprets the Contract and the
Statute in a systematic way, the hypothesis of the loss of profits has indeed been
contemplated by the Parties in Art. 38 of the Statute, the absence of profit
generating the right of each Party to request the dissolution of the Company
(see supra). This confirms that, according to the prima facie meaning of Art. 30,
the Parties did not consider the loss of profit as subject to compensation.
Besides, it does not appear that State Y Law prohibits the Parties to choose
own methods of definition or calculation of damages. The character of minimal
standard of the statutory rules, which has been described above, applies to the
conditions of liability and not to the definition and calculation of damages.
. [85] “From the point of view of causation, the Arbitral Tribunal considers that
it is probable that, if the State partner had fulfilled its obligations, the Company
would still exist and would not have lost its capital and assets, and would have
managed to have a financially balanced activity. It does not consider as probable
that the Company would have been profitable as planned in the business plan.
Indeed, given the general situation of the State economy in the relevant period, it
is probable that many difficulties would have arisen and even the proper fulfill¬
ment of the State partner’s obligations would not have guaranteed profitability.
Besides, if the margins had been increased, this would have probably raised
requests from the workers of the Company, which it would have been difficult
for Company X not to satisfy, with the result of difficulties in repatriating the
profits.
[86] “Anyway, the lucrum cessans being excluded by Contract (see supra), it is
not necessary to develop these assumptions. As a result, the compensation is
limited to what Claimants have contributed to the Company, as capital contri¬
bution and as the loans with which they provided the Company in order to
allow it to continue its activities, the credited amounts being obviously
irrecoverable.
[87] “The only elements to quantify these amounts consist in the accounts of
the Company, established for the relevant years. They indicate especially the
positions ‘debts against partners’ showing thus the amounts paid by Claimants
to the Company to ensure the continuation of its activity. These accounts have
been established by the accountant chosen by the partners’ assembly and signed
by the Director of the Company. These were known to the foreign as well as to
the State partners and, as it results from the file, have not been contested as to
their exactitude. These are therefore credible as evidence.”

8
f
f CASE NO. 12112 ARBITRAL AWARDS
I [88] The sole arbitrator listed the amounts as they appeared from the accouncs
of Company X and concluded: “The total of the losses and expenses in capital
amounts therefore to sum Z. The interests must be added. Their calculation is
explained infra.
[89] “As to the amount allegedly due as indemnification by the international
humanitarian organization for having used the land to set up a camp for refugees,
i the Arbitral Tribunal must consider that it is not established that Company X
has been definitively deprived of the alleged amount because of Respondent’s
f
behavior. It is not even proven that Company X was indeed entitled to the
mentioned amount. The lack of evidence pertaining to this indemnification is
difficult to understand, since it results from the file than Company X paid an
amount to an attorney in order to recover the amount allegedly due by the
international organization. Therefore, some moves towards the international
:
organizations should have taken place, which it should have been easy to doc¬
ument. It is especially surprising that no specific answer to such moves could be
produced with Claimants’ pleadings. Thus, the Arbitral Tribunal cannot be
convinced of its existence. Since Claimants have the burden of the proof, the
claim pertaining to this amount allegedly due by the international organization
must be dismissed.
[90] “Based on the evidence which was provided before the proceedings were
closed, the Sole Arbitrator must assume that Company X has no realizable assets
any more. Therefore, the nomination of a liquidator by the arbitrator makes no
;; sense.
[91] “The Sole Arbitrator cannot examine whether the Parties have chosen a
liquidator after the closing of the proceedings. . . . Indeed, after the closing of
the proceedings, the Sole Arbitrator cannot take into account any new evidence
of any facts, should these facts have occurred before or after the closing of the
proceedings. . . .
[92] “For information, in order to be as clear as possible as to the meaning of
the award and to ensure its enforceability, the Sole Arbitrator describes here the
legal situation that would exist if a State Y Court appointed a liquidator despite
the arbitration clause or if the Parties decided themselves to appoint a liquidator.
Unless the Parties agree to suspend the enforceability of the award, the obliga¬
tions which are recognized in the award will not be affected by any hypothetical
procedure of liquidation or by any acts accomplished by a liquidator.
[93] “Claimants are entitled to interests on the damages which are considered
as due by Respondent in the present award. The relevant provision of the law of
State Y provides that damages for paying a sum of money consist of interest from
the date the delay began, at a rate defined by the law. Interest is added to the
capital sum at the end of each year. In the present case, the first acts which
generated Respondent’s liability took place several years ago. Damages were

already due at this time (see also . . . Art. 23 of the Contract). Interests are due on
the damages as soon as the latter were due. Given that the moments at which,
each year, the foreign partners actually paid to Company X the documented
amounts (as loans to cover the losses of the Company) are not precisely set, and
that an excessive complexity in the calculation must be avoided, it will be con¬
sidered that they were paid at the end of each year. It means that Claimants are
considered to have been deprived of these amounts from the end of each year.
The interests are considered to commence on the first day of each year as to the
amount which was due at this date.
[94] “According to the relevant provision of the law of State Y, the matured
interests are added to the sum at the end of each year. As to the percentage of the
interest, it is not possible to apply the percentage defined by State Y authorities,
since the currency of reference is the Dollar of the United States of America.
Claimants having their activities in Europe, it is appropriate to apply the
reference interest rate LIBOR-1 month in US$ + 1,5% (the 1 month rate
being, in an approximate measure of 0,5%, lower than the 12 months rate
which can be referred to in decisions defining the interest rate as LIBOR +
1%, see Bulletin de la Cour internationale d’arbitrage de la CCI, Vol. 15/1,
1st semester 2004, p. 90, especially ad final award in re No. 8521; see also p. 81
et seq. ad daims in re No. 7622).”
[95] The sole arbitrator calculated the applicable rate for the average of each
relevant year, calculated the interest owed and concluded: “Since Claimants,
who have acted joindy in the proceedings, have replaced in the contract one
entity, they are to be considered as joint creditors. Indeed, only a joint creditor-
ship corresponds to the position of one entity.”
VII. COSTS AND FEES
[96] “The Arbitral Tribunal must decide on the costs of arbitration, in

particular fix their amount and decide which of the Parties must bear them
(Art. 31(3) ICC Rules). Besides, it must grant an indemnity to the Party
whose legal actions are admitted, since the fees of its legal counsels appear as
‘necessary expenses to define the damage and the responsibility’, which are
included in the compensation according to State Y Law; besides, according to
Art. 31(1) in fine ICC Rules, the award shall fix ‘the reasonable legal and other
costs incurred be the parties for the arbitration’. In its decision, the Arbitral
Tribunal must consider the admission or rejection of the legal actions and the
procedural behavior of the Parties.
[97] "In the present case, Claimants’ actions are admitted in their principle.
The grounds of Respondent’s liability are based on factual allegations which, as a
whole, appeared to correspond to reality. The claimed amounts have not been

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si¬
te' CASE NO. 12112 ARBITRAL AWARDS
K granted in their entirety because of the method of calculation of damages, which
I is essentially a legal question, the solution of which has not required the Arbitral
I Tribunal to initiate investigations of facts. It cannot be considered that, if
I ■
Claimants had requested the payment of a lesser amount, the proceedings
would have been unnecessary or simpler. Indeed, before the Arbitral
Tribunal, Respondent did not offer to pay any amount to Claimants. In the
contrary, Respondent raised material and formal exceptions and objections,
I signifying that it contested any recognition of an obligation towards
I Claimants. As a result, the legal actions initiated by Claimants and the proceed¬
ings that they have accomplished appear to be justified and necessary for the
legal recognition of their rights. Therefore, Respondent must bear all costs of
arbitration and pay an indemnity to Claimants for their legal counsels.
[98] “The costs of arbitration, which include the costs for the interim award,
were fixed by the Court at US$ X (US$ A as administrative expenses, US$ B as
fees of the Sole Arbitrator and US$ C as his expenses). Respondent will therefore
have to pay to Claimants an amount corresponding to these costs.
[99] “Claimants are entitled to the reimbursement for their reasonable legal
costs. They have filed a note in which they mention such costs for a total amount
of EUR D. This amount does not seem unreasonable. This amount seems not
excessive if one takes into account the high complexity of the legal questions
which had to be solved as well in the interim award as in the present final
award. ... As a consequence of the rule provided for in the relevant provision
of State Y law, the matured interests on this sum must be added, at the end of
each year, to the obligation upon which the calculation of interests is made.”
(....)
Reprinted from the Yearbook CommerciaiArbitration 211

First partial award in case no. 12173 of 2004
Parties: Claimant: Buyer (Non-European country)

Respondents: (1) Seller (European country);
(2) Seller’s subsidiary company (Non-European
country)
Place of Zurich, Switzerland

arbitration:
Subject matters: - principles of contract interpretation

— United Nations Convention on Contracts for the
International Sale of Goods (CISG), Vienna 1980
- liquidated damages
- specific performance
- contractual limitation of damages
Facts
The parties concluded a Frame Contract for the sale and purchase of a certain
product. Sect. 7.4.1 of the Frame Contract (the specific performance provision)
provided that Seller and Seller’s subsidiary company (collectively, Respondents)
would either repair or replace products with serious generic defects (that is,
defects repeated throughout the product) within a contractually established
Warranty Period. Sect. 21.2 of the Frame Contract (the liquidated damages
provision) provided that Respondents would have a ninety-day period to
remedy major faults of the product that were attributable to them and that if
the fault was not remedied within that period, Claimant would be entitled to
liquidated damages. Sect. 27 of the Frame Contract (the liability cap provision)
provided that (i) Respondents indemnify Claimant for all claims and expenses
resulting from damage due to Respondents’ negligence, malicious act or reck¬
lessness up to sum B (Sect. 27.1); (ii) total liability in respect of any default shall
not exceed sum A (Sect. 27.2) and (iii) neither party shall have any liability for
incidental or consequential damages (Sect. 27.4). Sect. 36 of the Frame Contract
provided that the agreement was governed by and should be interpreted in
accordance with Swiss law; it further provided that disputes be referred to
ICC arbitration in Zurich.

A dispute arose between the parties and arbitration proceedings commenced

in Zurich as provided for in the Frame Contract. The parties agreed that the
arbitrators render a partial award on three issues concerning the construction of
the Frame Contract, namely: (1) the relationship between the liquidated
damages provision and the liability cap provision; (2) the relationship between
the specific performance provision and the liability cap provision and (3) the
relationship between the specific performance provision and the liquidated
damages provision. The parties reached an agreement in respect of the second
issue, finding that the liability cap provision did not prevent a specific perfor¬
mance claim. The arbitrators therefore examined only the first and third issues.
The Arbitral Tribunal stated at the outset that the United Nations (Vienna)
Convention on the International Sale of Goods (CISG) applied to the Frame
Contract because the Frame Contract was a purchase agreement. It noted that
the principles of contract interpretation under the applicable Swiss law, and the
CISG, require that the parties’ common understanding as to the meaning of a
specific provision be determined first. If no such common understanding can be
established, then the express wording of the contract must be considered, and
then the contract negotiations, both in respect of the individual provision and
within the context of the agreement (systematic analysis). Further, contract
interpretation must consider the principle of good faith and take into account
the rules of conventions and trade usages.
Applying these principles, the Arbitral Tribunal held in respect of the first
issue that claims for liquidated damages under the Frame Contract were subject
to the liability limitations of Sect. 27.2 but not to the limitations of Sect. 27.4.
In respect of the third issue, the arbitrators concluded that claims for specific
performance under the specific performance provision could co-exist with
claims for liquidated damages under the liquidated damages provision.
Excerpt
I. SCOPE OF PARTIAL AWARD
[1] “This Partial Award deals only with three discrete issues concerning the
construction of the Frame Contract, as follows (the Issues):
(i) What is the relationship between Sect. 21.2 of the Frame Contract (liq¬
uidated damages) and Sect. 27 of the Frame Contract (liability cap)?
(ii) What is the relationship between Sect. 7.4.1 of the Frame Contract
(specific performance) and Sect. 27 of the Frame Contract (liability cap)?

(iii) What is the relationship between Sect. 7.4.1 of the Frame Contract
(specific performance) and Sect. 21.2 of the Frame Contract (liquidated
damages)?
In fact, as recorded below, the second issue has since been agreed
by the Parties (see [at [42]] of this Partial Award).”
II. POWER AND DISCRETION TO RENDER PARTIAL AWARD
[2] “The Arbitral Tribunal has the power to render a partial award limited to
certain questions (Art. 2(iii) of the ICC Rules). It is a matter of the discretion of
■f the Arbitral Tribunal as to the circumstances in which a partial award should be
■i made (Craig/Park/Paulsson, International Chamber of Commerce Arbitration,
3rd ed. (2000), p. 361). Here, the Parties have specifically agreed with the
Arbitral Tribunal that a partial award be rendered on the Issues.
[3] “The Arbitral Tribunal considers it useful to render a partial award on the
Issues, since the questions involve important issues of contract interpretation,
the resolution of which will set part of the framework for deciding the many
claims in dispute. However, as the parties will be aware, given its limited ambit
this Partial Award does not, of itself, finally dispose of any claims.
[4] “The scope of this Partial Award is strictly confined to the Issues. Again as
the Parties will be aware, this Partial Award does not cover other questions of
contract construction such as (amongst others) the actual calculation of the
liability cap, or the calculation of liquidated damages pursuant to Sect. 21.2 of
the Frame Contract. Further, nothing in this Partial Award has any bearing
upon Claimant’s case as to the Respondents’ alleged gross negligence, and the
impact this is said to have upon the provisions of the contract. Lastly, nothing in
this Partial Award has any bearing upon Claimant’s reliance on antitrust issues.”
(....)
III. THE PARTIES’ SUBMISSIONS
[5] “Each Party has filed detailed submissions and put forward numerous
arguments on each of the Issues. The Arbitral Tribunal has carefully considered
each point. In the interests of brevity, however, the Arbitral Tribunal has set out
a brief summary only of each Party’s case, rather than rehearsing each submis¬
sion in full. Further reference to each Party’s submissions is made . . . below.”
1. Claimant
[6] “In the Request for Arbitration, Claimant addressed the issue of the rela¬
tionship between Sects. 27 and 21.2 of the Frame Contract, although only
;
,

indirectly. Claimant stated that the right to claim substantia] liquidated damages
as provided for in Sect. 21 of the Frame Contract compensates Claimant for the
fact that Sect. 27.4 of the Frame Contract drastically limits the possibility for
Claimant to claim damages for indirect or consequential loss.
[7] “In Claimant’s Brief I, Claimant focused on the question whether or not
Sect. 27 of the Frame Contract and the limitation of liability provided for
applied to the right to claim liquidated damages under Sect. 21.2 of the Frame
Contract. Claimant relied on the following arguments in order to demonstrate
that the liability cap in Sect. 27 of the Frame Contract does not apply to liqui¬
dated damages under Sect. 21.2 of the Frame Contract:
(a) There are no cross-references between Sect. 27 and Sect. 21.2 of the Frame
Contract. Further, there is no explicit delimitation. Claimant concludes
that, therefore, the Sections are independent from one another;
(b) Sect. 27 of the Frame Contract covers cases of liability for default, whereas
Sect. 21.2.1 of the Frame Contract applies where a major fault has occurred;
(c) Sect. 27.1of the Frame Contract deals with direct damages only, whereas
Sect. 21.2 of the Frame Contract mainly addresses consequential damages;
(d) Sect. 27.2 of the Frame Contract applies only to claims made under Sect.
27.2 of the Frame Contract;
(e) Sect. 27.5 of the Frame Contract shows the intention of the parties that the
limitation of liability is subject to any other explicit provision of the Frame
Contract;
(f) The complicated formula of Sect. 21.2.2 of the Frame Contract for calcu¬
lating liquidated damages would not make sense if Sect. 27.2 of the Frame
Contract were to apply;
(g) Mr. Y [who negotiated the Frame Contract on behalf of] Claimant stated
that a cap of sum A or 15% of the price of the product would not have been
acceptable;
(h) The contract history shows that Respondents had to abandon their
attempts to limit their exposure to liquidated damages.
Claimant also discussed the relationship between Sect. 27 and Sect. 7.4.1 of the
Frame Contract. It argued that Sect. 27 of the Frame Contract does not limit the
right of specific performance under Sect. 7.4.1 of the Frame Contract. This
follows from Sect. 7.5 of the Frame Contract, which reads as follows: ‘This
Sect. 7 shall be without prejudice to the provisions of Sect. 2.’
[8] “Claimant presented its final submission with respect to the Issues on date
Z. The submission is not repeated here. The arguments submitted by Claimant
are considered further below.”

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2. Respondents
[9] "In their Preliminary Answer, Respondents argued that their liability with
regard to any breach is capped at sum A or 15% of the price of the product
supplied under the Frame Contract.
[10] “In their Brief II, Respondents argued that the wording of Sect. 27 of the
Frame Contract is such as to set forth a comprehensive liability cap without
limitations. Respondents further contend that in the draft Agreement no. 5
Claimant had suggested to limit the scope of Sect. 27 of the Frame Contract
by adding the introduction ‘Subject to any other Section of the Contract’.
However, this introduction was deleted in further negotiations. In a later
draft, Claimant suggested that Sect. 27.2 of the Frame Contract be amended
by adding the phrase ‘however without prejudice to claimant’s other rights
and remedies under this Frame Contract’. This sentence, however, was struck
out.
[11] “Further, Respondents pleaded that, in the course of the contract nego¬
tiations, Mr. Y of Claimant had accepted the liability cap and understood
Respondents’ position in a discussion with Respondents.
[12] "Moreover, Respondents argued that the defaults referred to in Sect. 27 of
the Frame Contract encompass a major fault as set forth in Sect. 21.2 of the
Frame Contract. In particular, Respondents submitted that it is contradictory to
argue that Sect. 21.2 of the Frame Contract provides for a pre-quantification of
future damages while at the same time maintaining that Sect. 21.2 of the Frame
Contract is not covered by Sect. 27 of the Frame Contract.
[13] “Respondents also discussed the relationship between Sect. 21.2 of the
Frame Contract regarding liquidated damages and the right to specific perfor¬
mance as set forth in Sect. 7.4.1 of the Frame Contract. Respondents argued that
it follows from the wording of Sects. 21.1 and 21.2 of the Frame Contract that
the liquidated damages shall be in lieu of any other remedy thereby excluding
specific performance.
[14] “On date X, Respondents presented their final submission with respect to
the Issues. The submission is not repeated here. The arguments submitted by
Respondents are considered further below.”
III. ANALYSIS
1. Relevant Provisions of the Frame Contract
[15] “For the sake of convenience, the relevant provisions of the Frame
Contract are set out in full below.

'Sect. 7.4.1:
In the event that serious generic defect arising from the manufacture or
design of the product occurs in the operational part of the product pur¬
chased under this Frame Contract during the Warranty Period or within
ten (10) years after Warranty Period, Seller and/or Seller’s subsidiary
company, as appropriate at its option shall either repair or replace the
defective item free of charge as soon as possible from the date of Buyer
notifying Seller and/or Seller’s subsidiary company, as appropriate of such
defect, or Seller and/or Seller’s subsidiary company, as appropriate observ¬
ing such defect, whichever the earlier. Any item so repaired or replaced will
be warranted for the balance of the Warranty Period. For the purpose of
this sub-Section, a "serious generic defect” is a defect which is repeated
throughout the product.
Sect. 7.5:
This Sect. 7 shall be without prejudice to the provision of Sect. 27.
Sect. 21.2.1 :
In the event that a major fault, seriously affecting the use or performance of
the product, occurs during the term of the Frame Contract for reasons
directly attributable to Seller, there shall be a ninety (90) days grace period
commencing from the date of notification of such fault by Buyer to Seller,
or the observation of such fault by Seller (whichever the earlier) within
which Seller and/or Seller’s subsidiary company, as appropriate shall
remedy such fault.
If the fault in question is related to a responsibility of Seller contained in
this Frame Contract, the assumption shall be that the fault is due to a reason
directly attributable to Seller.
If the fault in question is not related to a responsibility of Seller contained
in this Frame Contract, the assumption shall be that the fault is due to a
reason not directly attributable to Seller.
Sect. 21.2.2:
In the event that such fault is not remedied within the said 90 day period,
Buyer shall be entitled to claim liquidated damages from the date that such
90 day period has expired calculated as follows:
- For the first 2.5 years of this Frame Contract, 1% per week;
- For the second 2.5 years of this Frame Contract, 0.5% per week;
to an aggregate maximum of 10%, such percentages to relate to the value of
the product purchased under this Frame Contract as the date of notification
or observation of such fault. Such value will be calculated using the prices in
Appendix 1.

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•Sect. 21.3:
Buyer’s remedies under sub-Sects. 21.1 and 21.2 shall be in lieu of any other
remedy in respect of loss incurred by Buyer due to the occurrence of the
faults described in sub-Sects. 21.1 and 21.2 above. However, for the avoid¬
ance of doubt, in the event that maximum liquidated damages are claimed
under sub-Sect. 21.2 and the fault in question has not been remedied at such
time, Buyer shall be entitled to terminate Seller and Seller’s subsidiary
company’s right to exclusivity under Sect. X above. This shall be without
prejudice to any implied legal rights which Buyer may have.
s
Sect 27:
£
Seller’s and/or Seller’s subsidiary company’s, as appropriate, entire liabil¬
ity, whether in contract or tort including negligence and Buyer’s only rem¬
edies in respect of any default are as set out in this Sect. 27.
Sect 27.1 :
Seller and/or Seller’s subsidiary company, as appropriate shall indemnify
Buyer and its officers, agents, affiliates and employees against all claims and
expenses whatsoever resulting from damage to property and/or physical
injury and/or death of persons arising out of or in connection with Seller
and/or Seller’s subsidiary company, as appropriate negligence, malicious
act, or recklessness. Upon Buyer’s request, Seller and/or Seller’s subsidiary
company, as appropriate shall hold harmless Buyer against any claims
raised against it by others on the grounds mentioned above. The indemnity
under this Sect. [27].1 in so far as it relates to damage to property shall be
limited to sum B, and is subject to Sect. 27.4, or 15% of the price of the
product supplied under this Frame Contract in any 12 month period pre¬
ceding the date that Buyer makes a claim pursuant to this sub-Sect. 27.1,
whichever is the greater in the aggregate.
Sect. 27.2:
Subject to Sect. 27.4 below, except in the case of any liability on the part
of Seller and/or Seller’s subsidiary company, as appropriate referred to in
sub-Sect. 27.1 above, Seller’s and/or Seller’s subsidiary company’s, as appro¬
priate total liability in respect of any default or defaults shall not exceed sum
A, or 15% of the price of the product supplied under this Frame Contract in
any 12 month period preceding the date that Buyer makes a claim pursuant to I
this sub-Sect. 27.2, whichever is the greater in the aggregate.
Sect 27.3:
Subject to Sect. 27.4 below, and notwithstanding Sect. 27.2 above, Seller
and/or Seller’s subsidiary company, as appropriate shall be liable in respect
of the patent and copyright indemnity as provided for in Sect. 24 for all
direct losses suffered by Buyer as a result of an infringement of third party.
!
t Reprinted from the Yearbook Commercial Arbitration 219
Sect. 27.4:
Except as provided in sub-Sect. 27.1 above, neither party shall have any
liability for incidental or consequential damages, including, but not limited
to, loss of profit, revenues, business, goodwill, loss, corruption or interrup¬
tion of data, loss of anticipated savings, loss of use of the Products or any
associated equipment, cost of capital, or downtime costs, even if foreseeable
by or in the contemplation of that party or any claim made against Buyer by
any other person.
Sect. 27.5:
Except as expressly stated herein, all conditions, warranties representations
and undertakings implied, statutory or otherwise, are hereby excluded
provided that nothing in this Frame Contract shall prejudice the parties’
statutory rights.
Sect. 27.6:
For the avoidance of doubt, where liability occurs under this Sect. 27 due to
a default relating to a Seller’s subsidiary company obligation, as set out in
Sect. 3 above and throughout this Frame Contract, Seller’s subsidiary
company shall be liable in accordance with the terms of this Sect. 27, and
where liability occurs under this Sect. 27 due to a default relating to a Seller
obligation, as set out in Sect. 3 above and throughout this Frame Contract,
Seller shall be liable in accordance with the terms of this Sect. 27.
Sect. 36:
This Frame Contract is governed and interpreted in accordance with the
laws of Switzerland, without reference to other laws.’”
2. Qualification of the Frame Contract
[16] “The parties are agreed that the Frame Contract qualifies as a purchase
agreement, because other (non-purchase) elements are clearly subordinated.
There is no reason for the Arbitral Tribunal to question this conclusion. This
classification is important, since the Vienna Convention on the International
Sale of Goods (‘CISG’) is thereby applicable.”
3. Applicable Law
[17] “It is common ground between the parties that the Issues are to be deter¬
mined in accordance with Swiss law, including the CISG. The Frame Contract
provides that it is governed and to be interpreted in accordance with the laws of

i

Switzerland, without reference to other laws (Sect. 36 of the Frame Contract).
The reference to Swiss law fails to specify whether the reference includes the
Swiss conflict of law rules. Claimant argues that these conflict of law rules do
apply. These provide for the application of the law chosen by the parties (Art.
118 of the Private International Law Act in connection with An. 2 of the Hague
Convention of 15 June 1955 on the Law Applicable to the International Sale of
Goods). On Claimant’s analysis, Swiss law includes the CISG.
[18] “Respondents in their submission plead the application of Swiss law and
of the CISG without giving reasons for this. Further, in the course of the hear¬
ing, Respondents expressly agreed on the application of Swiss law and of the
n CISG.
[19] “As there are no reasons to doubt the validity of the choice of law made in
Sect. 36 of the Frame Contract, Swiss law and hence the CISG (Art. 1 lit. b
CISG) apply to the Issues addressed in this Partial Award.”
3. Contract Construction
[20] “For the principles of contract interpretation under Swiss law and the
CISG, Claimant refers to the expert report submitted by Claimant. The expert
explains that the basis of contract interpretation consists in the determination of
the parties’ common understanding as to the meaning of a specific provision. If
an actual common understanding cannot be established, an objective contract
interpretation applies. Such interpretation starts with the express wording of the
contract, and then the contract negotiations. Contract interpretation must con¬
sider the principle of good faith. Further, a systematic analysis is called for.
Finally, general conventions and trade usages are helpful. In Claimant’s view,
the subsequent behaviour of the parties must also be considered.
[21] “Respondents generally agree with such principles of contract interpre¬
tation. In their final oral submissions Respondents stated that by and large the
parties are agreed on the interpretation principles, although there may be some
issues on the margins. Respondents were not specific as to the precise ambit of
such ‘issues on the margin’.
[22] “The Arbitral Tribunal follows the construction principles of the CISG
(Art. 8). Indeed, even aside from the CISG, the Arbitral Tribunal arrives at the
same result applying all of the criteria suggested by each Party.”
4. Relationship Between Sect. 21.2 ( Liquidated Damages )

and Sect. 27 ( Liability Cap )
[23] “Both parties rely on the wording of Sects. 27 and 21.2 of the Frame
Contract to support their viewpoint, reaching, however, contradictory
Reprinted from the Yearbook Commercial” Arbitration 221
!
conclusions. It is therefore necessary to first analyze the relevant wording. The

introductory phrase of Sect. 27 of the Frame Contract reads as follows:
‘Seller’s and/or Seller’s subsidiary company’s, as appropriate, entire liabil¬

ity, whether in contract or tort including negligence and Buyer’s only rem¬
edies in respect of any default are as set out in this Sect. 27.’
The relevant portion for the issue in question then continues:

‘Subject to Sect. 27.4 below, except in the case of any liability on the part of
Seller and/or Seller’s subsidiary company, as appropriate referred to in sub-
Sect. 27.1 above, Seller’s and/or Seller’s subsidiary company’s, as appropri¬
ate total liability in respect of any default or defaults shall not exceed sum A,
or 15% of the price of the product supplied under this Frame Contract in
any 12 month period preceding the date that Buyer makes a claim pursuant
to this sub-Sect. 27.2, whichever is the greater in the aggregate.’
With respect to incidental and consequential damages, Sect. 27.4 provides as

follows:
‘Except as provided in sub-Sect. 27.1 above, neither party shall have any
liability for incidental or consequential damages, including, but not limited
to, loss of profit, revenues, business, goodwill, loss, corruption or interrup¬
tion of data, loss of anticipated savings, loss of use of the Products or any
associated equipment, cost of capital, or downtime costs, even if foreseeable
by or in the contemplation of that party or any claim made against Buyer by
any other person.’
Relevant for the relationship at hand are only Sects. 27.2 and 27.4 of the Frame
Contract.
[24] ‘‘The wording suggests that Sect. 27 limits Respondents’ liability in
respect of any default. Sect. 27.2 of the Frame Contract more precisely limits
the total liability of Respondents in respect of any default or defaults. Hence, at
first sight, the wording seems to be clear.
[25] “As understood by the Arbitral Tribunal, Claimant in essence argues that
Sect. 27 of the Frame Contract fails to cover the liquidated damages remedy in
Sect. 21.2 of the Frame Contract. In Claimant’s view the latter constitutes a self-
contained regime.
[26] “The first of Claimant’s arguments in support of this analysis is that there
is no cross-reference between Sect. 21.2 and Sect. 27 of the Frame Contract. This
statement is correct. However, the wording of Sect. 27 of the Frame Contract

::r ' '
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í CASE NO. 12173, 2004 ARBITRAL AWARDS
undoubtedly governs the liability of Respondents; therefore no cross-reference
I is necessary. Further, there is no consistent use of cross-references within the
Frame Contract as a whole.
[27] “Secondly, Claimant argues that the concept of ‘liability’ under Swiss law
does not encompass liquidated damages. This line of reasoning can be followed
to the extent that it means that liquidated damages is a more specific - but not
entirely distinct - concept than the general ‘liability’ concept. Liquidated
damages are pre-quantified damages (expert opinion mentioned above). A
claim for liquidated damages is a damages claim which gives the party suffering
r.:-. damage a procedural advantage (expert opinion mentioned above). Therefore,
£.
since liquidated damages as a concept exists within the notion of ‘liability’, no
conclusions as to the relationship between Sect. 27 and Sect. 21.2 of the Frame
Contract can be drawn from such a distinction.
[28] “Claimant argues that Sect. 27 of the Frame Contract covers cases of
‘default’ whereas Sect. 21.2 of the Frame Contract deals with ‘major faults’.
Claimant maintains that a ‘major fault’ describes a technical situation, whereas
a ‘default’ is a breach of a contractual obligation. The Arbitral Tribunal under¬
stands this position as meaning that Sect. 21.2 of the Frame Contract is a per¬
formance mechanism. If the agreement were not to be performed in kind, the
performance obligation would be transformed into a payment obligation, which
would not amount to a ‘default’.
[29] “The parties agree that Sect. 21.2 of the Frame Contract provides for
liquidated damages, i.e. for a pre-quantification of damages in case of non¬
performance as opposed to a penalty provision. Hence, the liquidated damages
claim is the consequence of a breach of contract and not a performance mech¬
anism, i.e. a penalty provision. Indeed, Claimant concedes that a major fault
which is not remedied within 90 days becomes a default.
[30] “Based on the wording, Claimant further argues that the provision in
Sect. 21.3 of the Frame Contract providing that the liquidated damages claim
‘shall be in lieu, of any other remedy in respect of loss incurred by Buyer’
suggests that there is a choice for a claiming party to bring either a liquidated
damages claim under Sect. 21.2 of the Frame Contract or a general damages
claim under Sect. 27 of the Frame Contract.
[31] “This argument is not convincing. The fact that the liquidated damages
claim shall be in lieu of any other remedy does not have any impact on the
relationship between Sect. 21.2 and Sect. 27 of the Frame Contract. Sect. 21.3
of the Frame Contract clarifies whether or not the claim for liquidated damages
is the sole remedy with respect to loss. It obviously does not address the
question whether or not such damages claim is subject to the limitations
provided for in Sect. 27 of the Frame Contract.
1 Reprinted from the Yearbook Commercial-Arbitration 223

[32] “Contrary to Claimant’s position, Sect. 27.5 of the Frame Contract also
fails to give clues that would help resolve the issue under discussion. Sect. 27.5 of
the Frame Contract provides for the express exclusion of all conditions, war¬
ranties, representations and undertakings. Sect. 27.5 of the Frame Contract
clearly does not govern the relationship between Sect. 21.2 and Sect. 27.5 of
the Frame Contract.
[33] “Therefore, the Arbitral Tribunal concludes that neither the wording of
Sect. 21.2 nor of Sect. 27 of the Frame Contract leads to the conclusion that Sect.
27 of the Frame Contract does not apply to the liquidated damages claim.
Rather, the contrary is so: the wording of Sect. 27 suggests in terms that it
does apply to Sect. 21.2.
[34] “Aside from the express words of the agreement, the main argument of
Claimant that claims under Sect. 21.2 of the Frame Contract are not capped
under the provision of Sect. 27 of the Frame Contract is a systematic one.
Claimant argues that Sect. 21.2 of the Frame Contract prevails over Sect. 27
of the Frame Contract since it is a very specific rule with exhaustive provisions
on the limitation of liability. Since Sect. 21.2 of the Frame Contract provides for
a distinct, separate and exhaustive liability regime, Sect. 27 of the Frame
Contract must be eclipsed. According to Claimant, this view is supported by
the fact that the payment of consequential damages is excluded by Sect. 27.4 of
the Frame Contract, whereas liquidated damages may encompass consequential
damages.
[35] “The contract negotiation history, however, shows that the relationship
between Sect. 27 of the Frame Contract and other Sections of the Frame
Contract was discussed. In fact, the contract history clearly shows that
Claimant wanted to add the qualification ‘subject to any other Section of this
Frame Contract’ as an introductory phrase to Sect. 27 of the Frame Contract.
However, this was rejected by Respondents. Thereafter, Claimant suggested the
introduction of a similar qualification in Sect. 27.2 of the Frame Contract, which
was again rejected by Respondents. The final version does not contain any such
qualification.
[36] “This allows for the conclusion that the parties did not want to make the
application of Sect. 27 of the Frame Contract subject to any other Section of the
Frame Contract. Since the discussions regarding the relationship between Sect.
27 and the other Sections of the Frame Contract continued after the introduction
of the concept of liquidated damages in case of major faults as provided for in
Sect. 21.2 of the Frame Contract, the finding also applies to the relationship
between Sect. 27 and Sect. 21.2 of the Frame Contract. The liquidated damages
claim in the event of a major fault was included in the Frame Contract [on a
certain date during the negotiations]. The discussion on the relationship between
Sect. 27 of the Frame Contract and the other provisions of the Frame Contract

5 :
continued after such date. In other words, the contract history shows that the
parties did not want to make the application of Sect. 27 of the Frame Contract
subject to other contract clauses.
[37] “The next question to be considered is whether Sect. 21.2 of the Frame
Contract, by virtue of its specificity, precludes the application of Sect. 27.2 and
of Sect. 27.4 of the Frame Contract. Sect. 21.2 of the Frame Contract governs the
consequences of a major fault for which Respondents are responsible and which
is not remedied within 90 days. This is a normal stipulation for lack of perfor¬
mance or bad performance. The consequences of such a shortcoming is a liqui¬
2 dated damages claim, i.e. a pre-quantified damages claim. A damages claim falls
under the broad concept of liability as used in Sect. 27 of the Frame Contract
2 The question arises whether the application of Sect. 27.2 and/or Sect. 27.4 of the
Frame Contract is nevertheless precluded.
[38] “As for the relationship between Sect. 21.2 and Sect. 27.4 of the Frame
Contract, Respondents have not argued that Sect. 27.4 excluding consequential
damages prevents Claimant from claiming liquidated damages. Further, a
witness for Respondents testified that it was not discussed during the contract
negotiations whether Sect. 27.4 of the Frame Contract excludes liquidated
damages. The liquidated damages provision does not distinguish between losses
and consequential damages. In fact, in the Arbitral Tribunal’s view, the speci¬
ficity of the liquidated damages regime precludes the applicability of Sect. 27.4
of the Frame Contract to the liquidated damages claim. The application of Sect.
27.4 of the Frame Contract to a claim under Sect. 21.2 of the Frame Contract
would render a liquidated damages claim virtually impossible because it would
require Claimant to prove the origin and precise nature of each element of the
damages claim whereas it is the nature of liquidated damages that they represent
a pre-quantification of damages without the need to prove such damages. This
conclusion is not altered by the fact that Sect. 27.2 begins with the words
‘Subject to Sect. 27.4 below’.
[39] “While the right to liquidated damages precludes the application of Sect.
27.4 of the Frame Contract (exclusion of incidental and consequential damages),
the right to liquidated damages does not preclude the application of Sect. 27.2 of
the Frame Contract. The existence of a cap does not render the liquidated
damages claim impossible or devoid of any sense. Nor is there a contradiction
in the fact that the cap provided for in Sect. 21.2 is only slightly lower than the
overall cap provided for in Sect. 27.2 of the Frame Contract.
[40] “Claimant argues that in fact the parties had a different understanding,
and that such understanding was reflected in a Memorandum of Understanding
signed by the parties. In this Memorandum of Understanding Respondents
agreed to pay a financial contribution that exceeded the cap calculated pursuant
to Sect. 27 of the Frame Contract. However, in the Arbitral Tribunal’s view, the

Memorandum of Understanding is not a simple settlement agreement resolving

quantified claims. It is rather an agreement in the context of an ongoing rela¬
tionship that contains various elements and a strong incentive to foster
Claimant’s purchases. No specific understanding of the relationship between
Sect. 27.1 and Sect. 21.2 of the Frame Contract can therefore be deduced from
such an agreement.
[41] “Therefore, the Arbitral Tribunal holds that:
(1) Sect. 27.2 of the Frame Contract applies to Sect. 21.2 of the Frame
Contract, i.e. that liquidated damages claims pursuant to Sect. 21.2 of the
Frame Contract are subject to the limitations of Sect. 27.2 of the Frame
Contract; and that
(2) Sect. 27.4 of the Frame Contract does not apply to Sect. 21.2 of the Frame
Contract, i.e. that liquidated damages claims pursuant to Sect. 21.2 of the Frame
Contract are not subject to the limitations of Sect. 27.4 of the Frame Contract.”
4. Relationship Between Sect. 7.4.1 (Specific Performance) and Sect. 27

( Liability Cap )
[42] “The parties agree that Sect. 27 of the Frame Contract does not prevent a
specific performance claim under Sect. 7.4.1 of the Frame Contract and leaves
such performance claim unaffected. Therefore, the Arbitral Tribunal holds that
Sect. 27 of the Frame Contract does not affect a performance claim under Sect.
7.4.1 of the Frame Contract.”
5. Relationship Between Sect. 7.4.1 (Specific Performance) and Sect. 21.2

(Liquidated Damages)
a. General remarks
[43] “The relationship between Sect. 7.4 and Sect. 21.2 of the Frame Contract
must be assessed by reference to the applicable Swiss law (including the CISG).
As the parties come from countries with different legal traditions, it is important
to note the very significant differences in the approach to the concept of specific
performance that exist in civil and common law systems. Clearly, it is the civil
law approach that forms the backdrop to this particular issue.
[44] “The question addressed concerns the relationship between claims for
liquidated damages and claims for specific performance, and in particular,
whether such claims are mutually exclusive, or can co-exist. As a rule, Swiss
law provides for the right to specific performance and the right to claim damages
as cumulative remedies. In other words, unlike in the common law, a payment
aimed at curing a loss incurred, as a general rule, does not exclude the availability

r

of specific performance. This is also the case in connection with liquidated
| damages. Unlike the position for contractual penalties (Art. 160(1) of the
? Swiss Code of Obligations), there is no presumption that the payment of liq¬
uidated damages excludes a claim for specific performance. Indeed, the opposite
f- is the case.
[45] “The CISG also provides for a statutory right for specific performance
(Art. 46 CISG). Two observations may be made about this right:
(i) By providing a right for specific performance, the CISG follows the
■r
continental European tradition (von Caemmerer/Schlechtriem, Kom-
mentar zum Einheitlichen UN-Kaufrecbt, 2nd ed. Munich (1995) Art.
■;
46 no. 3). In other words, the CISG differs from the common law tradi¬
tion, where specific performance is treated as an alternative remedy to
damages, and is generally admitted only to the extent that a damages claim
fails to grant sufficient protection to the injured party;
(ii) Under the CISG, unlike Swiss law, the right to specific performance is
treated as a remedy, rather than the exercise of a performance obligation.
The uniform sales law does not regard the buyer’s right to require per¬
formance of an obligation as simply the logical consequence of the seller’s
contractual obligation, or even as identical to it, but rather as a statutory
‘remedy’ available in the event of a breach of contract. This is, in principle,
tantamount to a right to require performance in all cases of non-perfor¬
mance. However, under the CISG the buyer must not require specific
performance if it has resorted to a remedy which is inconsistent with
specific performance. Moreover, a court is not bound to enter a judgement
for specific performance unless the court would do so under its own law in
respect of similar contracts of sale not governed by the CISG (Art. 28
CISG). Under the CISG, the parties are free to agree otherwise (Art. 6
CISG).
[46] “As a matter of approach, bearing in mind the position in Swiss law and
under the CISG, the question arises as to whether there is any wording in the
agreement that is sufficient to rebut the presumption that specific performance
will be available. More shortly, the question is whether there is any wording in
Sect. 21 that disapplies Sect. 7,4.”
b. Analysis of the Frame Contract
[47] “The Frame Contract provides for an obligation to repair or replace items
having a ‘serious generic defect’ within the warranty period and 10 years there¬
after (Sect. 7.4.1 of the Frame Contract). The specific remedy provided for in

Sect. 7.4.1 of the Frame Contract in principle reflects the remedy for specific
performance available under the CISG, thereby adapting the claim for specific
performance to the particular needs of the parties in the context of the Frame
Contract. On the other hand, Sect. 21.2.2 of the Frame Contract provides a right
to claim liquidated damages from the date that a grace period of 90 days has
expired up to the date such fault is remedied.
[48] “On a proper analysis, the Frame Contract does not regulate the rela¬
tionship between Sect. 21.2 and Sect. 7.4.1 of the Frame Contract. However,
Sect. 21.3 of the Frame Contract clarifies that the liquidated damages claim shall
be in lieu of any other remedy in respect of loss incurred by Claimant due to the
occurrence of the faults. Sect. 21.3 of the Frame Contract shall be without
prejudice to any implied legal rights.
[49] “On balance, there is no wording in the agreement that would exclude
specific performance if liquidated damages are claimed. By stating that the liq¬
uidated damages claim shall be in lieu of any other ‘remedy in respect of loss’
incurred by Claimant, the Frame Contract does not exclude specific perfor¬
mance. Respondents argue that the term ‘loss’ must not be read narrowly.
Given the fact that the contractual remedy pursuant to Sect. 7.4.1 of the
Frame Contract can be considered a tailor-made remedy for specific perfor¬
mance and that, as a general rule, specific performance is not excluded unless
expressly agreed by the parties, this argument is not convincing. The replace¬
ment of a defective product is not properly characterized as a ‘loss’, since no loss
has occurred as long as there is a right for replacement of a defective product.
[50] “Sect. 21.3 of the Frame Contract further provides that the exclusivity
under Sect. X of the Frame Contract can be terminated if the maximum damages
are claimed and the fault in question has not been remedied at such time. Such
course of action presumes that there is an ongoing obligation to cure the major
fault even if the liquidated damages claim has started to run after the 90 days’
grace period. This is consistent with Sect. 7.4 giving rise to a separate and
continuing obligation.
[51] “Further, Sect. 7.4.1 and Sect. 21.2 of the Frame Contract address com¬
pletely different situations, namely either a serious generic defect arising from
the manufacture or design of the product repeated throughout the product, or a
major fault seriously affecting the performance of the product that is not cured
within 90 days. The set of circumstances envisaged by Sect. 21.2 of the Frame
Contract is so different from the one in Sect. 7.4.1 of the Frame Contract that it is
not possible to maintain that the cases captured by Sect. 7.4.1 of the Frame
Contract are just a subset of cases of Sect. 21.2 of the Frame Contract. The
fact that any particular event might be within the ambit of both Sections does
not alter this conclusion, since the contract was clearly drafted in terms of two
different regimes, triggered by different criteria.

,1
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rr CASE NO. 12173, 2004 ARBITRAL AWARDS
if [52] “The contract negotiation history does not suggest another interpreta¬
tion. The final version of Sect. 21.3 of the Frame Contract clearly states that the
liquidated damages claim shall be in lieu of any other remedy with respect to
‘loss’. Loss is a term of art under Swiss law and does not encompass ‘specific
performance5. The fact that the provision of Sect. 7.6 of the Frame Contract as
included in the draft as reflected in one of the Exhibits classifying that the
t warranties in Sect. 7 are not the exclusive rights was struck out before signing
does not exclude specific performance since such provision did not address the
relationship between Sect. 21.2 and Sect. 7 of the Frame Contract.
[53] “Respondents correctly state that Art. 46(1) CISG does not grant specific
performance if the buyer has resorted to a remedy which is inconsistent with
specific performance. Contrary to Respondents’ allegations, Art. 46(1) CISG
does not generally exclude the possibility that a person claims specific perfor¬
mance and the restitution of damages. Insofar as the claim for specific perfor¬
mance and for restitution of damages are not inconsistent, Art. 46(1) CISG does
T not exclude parallel claims (e.g., to the extent the damages refer to loss of income
or profit, where there would be no such inconsistency).
[54] “There is no general issue of double recovery as the liquidated damages
claim covers the time period as of the end of the grace period up to the point in
time when the major fault is remedied. Once the serious generic defect has been
remedied, the major fault triggered by the serious generic defect must also have
been remedied and as a consequence, the liquidated damages claim is stopped.
Any issue of double recovery at a concrete level, should it arise, will obviously
be addressed by the Arbitral Tribunal, as the applicable law requires.
[55] “Therefore, the Arbitral Tribunal holds that the claim for liquidated
damages does not exclude a simultaneous claim for specific performance.”
IV. AWARD
[56] “On the basis of its analysis of the facts and the applicable law as set out
above, the Arbitral Tribunal unanimously declares that:
(1) Claims for liquidated damages pursuant to Sect. 2L2 of the Frame Con¬
tract are subject to the limitations of Sect. 27.2 of the Frame Contract;
(2) Claims for liquidated damages pursuant to Sect. 21.2 of the Frame Con¬
tract are not subject to the limitations of Sect. 27.4 of the Frame Contract;
(3) Claims for specific performance pursuant to Sect. 7.4.1 of the Frame Con¬
tract are unaffected by Sect. 27 of the Frame Contract;
(4) Claims for specific performance pursuant to Sect. 7,4.1 of the Frame Con¬
tract are not per se excluded by the existence of claims for liquidated
damages pursuant to Sect. 21.2 of the Frame Contract.

All other issues, including the costs of arbitration occasioned by this Partial
Award and all other relief sought by the Parties, are reserved for determination
in one or several subsequent award(s).”
230 Reprinted liom the Yearbook Commercial Arbitration

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I-iv Final award in case no. 12502 of 2005
?
Parties: Claimant: French corporation
Respondents: (1) Danish corporation;
(2) Danish corporation
Place of Not indicated

arbitration:
Subject matters: - scope of arbitration clause

- intention of parties as to applicable law
- declaratory award on liability
- restriction of competition
- fraudulent inducement (dot)
- warranty obligation and breach of contract
- warranty and notice of event
- precontractual liability
— discretion of arbitrators in allocating costs of
arbitration and legal costs
Facts
First Respondent negotiated the sale of Company X and Company M, two

French companies of the Respondent Group (the Companies), to Claimant, a
French corporation ultimately controlled by a Swedish corporation (Claimant’s
Swedish parent company). Claimant’s Swedish parent company and First
Respondent entered into Heads of Agreement stating their mutual intent to
carry out the transaction and confirming their agreement on the basic conditions
therefor. The Heads of Agreement provided for a due diligence of the
Companies and stated that if no “legally binding agreement” were signed on
date X, the Heads would have “no further impact on the parties”. The parties
also expressed their intention that the transaction be governed by French law,
but that Danish law apply specifically to the Heads of Agreement.
Claimant’s Swedish parent company sent an Enquiry List to First Respondent
requesting, inter alia, copies of all agreements limiting the business of the
Companies and information on whether the Companies had violated any
laws, regulations or permits. The due diligence took place over two months;

Mr. H, managing director of Company X, had the task of collecting the

necessary documents in respect of Company X.
At the conclusion of the due diligence, First Respondent and Claimant
entered into a Share Purchase Agreement (SPA) for the sale of the shares in
the Companies. The SPA explicitly superseded any prior agreement, established
an Estimated Purchase Price and the manner in which the Final Purchase Price
would be determined, and contained warranties by First Respondent in respect
of the Companies - inter alia, that they were not a party to anti-competitive
practices. The warranties would remain valid for eighteen months after closing;
First Respondent would further indemnify Claimant for the consequences of
any procedure commenced against the Companies by a third party for a period
of three years from the closing. Claimant had the duty to notify First
Respondent in writing of any event giving rise to the implementation of these
provisions within thirty days from the date when the relevant division manager
of the Claimant became aware of such event. The SPA further provided that it
was governed by French law but that its "legal binding effect” was governed by
Swedish Law. It further contained a clause for ICC arbitration of disputes.
In a letter to Claimant’s Swedish parent company, Second Respondent,
another company in the Respondent Group and the direct parent company of
First Respondent, guaranteed the due performance of the SPA.
Approximately one month after closing, Mr. Z, the new chairman of the board
of Company X, attended a meeting of a trade association of which Company X
was a member. He allegedly discovered that beyond its ostensible purposes of
promoting the sales of the relevant product and of gathering useful statistics
regarding the markets, the trade association was also used as a tool to carry out
anti-competitive practices prohibited under Art. 81 of the Treaty Establishing
the European Community (EC Treaty) such as price-fixing and market sharing.
Company X allegedly stopped engaging in anti-competitive practices
immediately after Mr. Z attended the meeting. One month later, Claimant’s
Swedish parent company paid the final instalment on the purchase price of
the Companies. Neither Claimant nor Claimant’s Swedish parent company
notified the Respondents of Mr. Z’s findings.
Three years later, the EU Commission ordered Company X to undergo an
investigation as to alleged anti-competitive practices and subsequently con¬
ducted an on-the-spot investigation (a “dawn raid”) at Company X’s premises,
seizing various documents. Claimant submitted in the present arbitration that
following the dawn raid it initiated an internal investigation and reached the
conclusion that Company X had indeed participated, during the period First
Respondent owned and controlled it, in at least three anti-competitive
organizations.

il
IF
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L CASE NO. 12502, 2005 ARBITRAL AWARDS
Claimant's Swedish parent company then informed First Respondent of the
existence of the EU Commission investigation and stated that it considered First
Í Respondent responsible for any possible consequences of that investigation
F pertaining to the period before the acquisition of Company X. Second
Respondent replied that the warranty period provided for in the SPA had
expired, whereupon Claimant commenced the present arbitration proceedings,
seeking a declaration that First Respondent and Second Respondent were liable
for the loss suffered by Company X and/or Claimant as a consequence of any
fines imposed or any other measures taken by the EU Commission.
While arbitration was pending, the EU Commission issued a Statement of
V Objections stating that it had found evidence of infringement of Art. 81 of the
EC Treaty and indicating that it intended to render a decision finding that there
had been such infringement and imposing fines. The EU Commission specified
-:v that, given the transfer of ownership of Company X from the Respondent
•Ï, Group to the Claimant Group, First Respondent and Second Respondent, on
the one hand, and Claimant’s Swedish parent company and Claimant, on the
other hand, were jointly and severally liable with Company X.
By the present Final Award, the arbitrators dismissed Claimant's request for a
declaration of the Respondents’ liability, holding that First Respondent did not
commit acts of deceit {dol) in order to induce Claimant to enter into the contract
and that although First Respondent did breach its obligations under the war¬
ranties in the SPA, Claimant’s claim was time-barred.
The Arbitral Tribunal first held that it had jurisdiction over all claims, includ¬
ing claims for the alleged breach of the due diligence provision in the Heads of
Agreement. The arbitrators found that the arbitration clause in the SPA, which
referred broadly to all disputes “in connection with the contract", encompassed
all disputes concerning the negotiation and conclusion of the SPA, including the
Heads of Agreement. It was irrelevant that the Heads of Agreement were
between First Respondent and Claimant’s Swedish parent company, whilst
the SPA was entered into between First Respondent and Claimant: the parties
specifically referred to the Heads of Agreement in the SPA - by providing that
the latter superseded the former - so that the fact that one party was not the
same, though belonging to the same group, was clearly immaterial to them.
The Arbitral Tribunal then examined the issue of the applicable law. It held
that French law, the governing law of the SPA, also applied to disputes arising
under the Heads of Agreement, which the SPA explicitly superseded. The arbi¬
trators further considered the exception in the SPA that Swedish law, rather than
French law, governed the SPA’s “legal binding effect”. The arbitrators conclud¬
ed that this exception was the result of the parties’ concern that their agreement
might be invalid under French law because of the failure to specify the price of
the share purchase, and that the parties only meant to submit to Swedish law

j
those issues which could have given rise to problems if they had been governed
by French law, specifically the issue of the determination of the price. As a
consequence, Claimant’s main argument that First Respondent committed a
deceit {dot) to induce Claimant to enter into the SPA had to be decided
under French law: though deceit affects the consent of one of the parties to
an agreement and is therefore a matter of contract formation, the parties did
not have the formation of the SPA in its entirety in mind when they agreed to the
exceptional application of Swedish law, but only the SPA’s "legal binding
effect”.
The Arbitral Tribunal denied Respondents’ argument that the relief sought by
Claimant, a declaratory award, was inadmissible under French law, noting that
Respondents relied on French rules of civil procedure, which are not applicable
to international arbitrations.
The Arbitral Tribunal then held that it appeared on the basis of the evidence
on record that Company X had indeed been engaged in anti-competitive prac¬
tices at the time of its acquisition by Claimant, that certain managers within
Company X (notably, its managing director Mr. H) had been aware of those
practices and that they failed to disclose them to Claimant during the negotia¬
tion of the SPA. The arbitrators found however that Mr. Q and First
Respondent’s in-house counsel, who negotiated the SPA on behalf of
Respondents, were not aware of those practices.
The Arbitral Tribunal subsequently examined the issue whether there had
been deceit (dol) on the part of Respondents to induce Claimant to enter into
the SPA. The Tribunal applied French law, which it had found to be applicable.
It reasoned that under the French Civil Code there is dol when a party to the
agreement commits malicious acts (manoeuvres) with the intent to cause
the deceived party to enter into the agreement, and those acts are decisive for
the other party’s decision to enter into the agreement. In the case of alleged
deceit by way of silence, the party who remained silent must have been aware of
the information being concealed as well as of its importance for the other party.
Here, the arbitrators had found that First Respondent’s negotiators were not
aware of the anti-competitive practices at the time of the transfer of Company
X’s shares to Claimant. Hence, they could not have committed an act of deceit.
Differently, Mr. H, the managing director of Company X at that time, was
aware of those practices and intentionally omitted to disclose them to Claimant
though he was aware of their relevance. He therefore committed an act of deceit.
His dol however was not attributable to First Respondent as Mr. H did not
represent First Respondent in the negotiation and conclusion of the SPA and his
duties with respect to the due diligence were “ministerial” (collecting docu¬
ments). Moreover, he was not authorized to perform legal acts on First
Respondent’s behalf.

r
The arbitrators conceded that this conclusion may "look harsh” to Claimant
who was not negligent or imprudent when it entered into the SPA. However, the
Tribunal concluded that Respondents acted “just as diligently and in good faith”
- “[t]hat Mr. H did not is another story” - and that Claimant could have
obtained relief under the warranties in the SPA had it not omitted to notify
Respondents in a timely manner of the event giving rise to the possible imple¬
mentation of the warranties provision, that is, the discovery of the anti-com¬
petitive practices.
The Arbitral Tribunal then held that First Respondent committed a breach of
the SPA because it represented and warranted that Company X was not, on
closing date, a party to anti-competitive practices. As mentioned above,
; however, the Tribunal found that this claim was time-barred because
Claimant did not notify First Respondent in writing within thirty days of
Mr. Z’s finding out about the anti-competitive practices.
The Arbitral Tribunal found that First Respondent did not commit a pre-
contractual breach of its duty to inform Claimant properly, holding that the
arguments raised by Claimant in this respect were in fact arguments relating to
the formation of the SPA and thus falling thereunder.
Finally, the Tribunal in its discretion held that each party should bear its own
legal costs and an equal share of the costs of the arbitration. Although Claimant’s
claims were dismissed, Company X had been engaged in illegal anti-competitive
practices prior to its acquisition by Claimant and First Respondent breached the
SPA by not disclosing such practices to Claimant during the due diligence or
during the negotiations of the SPA. Hence, the Tribunal held that it would not
be appropriate here to apply the costs-follow-the-event method.
Excerpt
I. FACTUAL BACKGROUND
1. Events Leading to the Conclusion of the Share Purchase Agreement
a. The Heads of Agreement
[1] "Claimant’s Swedish parent company and First Respondent entered into
‘Heads of Agreement’, pertaining to the contemplated sale by First Respondent
of all the shares in the two French Companies. The recitals of the Heads of
Agreement state that Claimant’s Swedish parent company had an interest in
acquiring all the shares in the rwo French Companies, which First

1
Respondent was interested to sell.1 Accordingly, the two parties declared ‘their
mutual intent to carry out such a transaction’ and confirmed ‘their agreement on
the basic conditions for the intended transaction as base for the preparation and
negotiation in good faith of a legally binding agreement effecting the transac¬
tion’. Specifically, First Respondent and Claimant’s Swedish parent company
agreed as follows regarding the contemplated transaction:
(a) First Respondent would sell to Claimant’s Swedish parent company all the
shares in the two companies (Art. 1);
(b) The purchase price would be based upon the adjusted net equity of the sold
companies (Art, 2);
(c) No later than 75 days after Closing of the transaction, the Buyer (Clai¬
mant’s Swedish parent company) shall cause the Acquired Companies to
prepare a balance sheet as per the Closing Date (the ‘Transfer Balance
Sheet’ which had to be prepared in accordance with generally accepted
accounting principles in France (Art. 4);
(d) First Respondent would give to Claimant’s Swedish parent company ‘such
warranties may be reasonably required for the businesses of the
Acquired Companies’ and which would be ‘reasonably satisfactory to
the Buyer as well as satisfactory and appropriate indemnities’ (Art. 5);
(e) French law would govern the contemplated transaction, while Danish law
would govern the Heads of Agreement (Art. 14).
[2] “Arts. 10 and 13 of the Heads of Agreement provide as follows:
‘10. Due Diligence and Other Conditions Precedent

(a) The Buyer shall before signing of a legally binding agreement be entitled
to carry out a financial, market, technical, legal, environmental and human
resources due diligence of the Acquired Companies.
(b) Upon signing of these Heads of Agreement the Seller shall itself and
cause the Acquired Companies to grant the Buyer full access to all facilities,
books, records, documents and other information as is reasonably
requested by the Buyer for the due diligence of the businesses of the
Acquired Companies.
(c) Prior to Closing, the Seller will cause the Acquired Companies to be
operated in the usual and ordinary course consistent with past practices and
.
1 "The recitals of this Agreement also refer to a Share Purchase Agreement entered into between
Claimant’s Swedish parent company and First Respondent one year before pertaining to the sale
of all the shares in another Danish company (Danish Company A), a Norwegian company, as well
as the land and buildings on which the Danish company A had its production facilities.”
236 Reprinted from the Yearbook Commercial Aibitration

Sí

its assets to be maintained in good repair. During such time the Acquired
Companies will not without the Buyer’s consent enter into any commit¬
ments outside its ordinary course of business or decide on or effect invest¬
ments in excess of the budgeted investments or exceeding sum A without
the Buyer’s consent.
13. Nature of Heads of Agreement
(a) Except for Articles 10-14, these Heads of Agreement shall not be con¬
sidered a legally binding document, but is intended to evidence the
preliminary undertakings regarding the intended transaction contemplated
herein and the mutual intent of the parties to negotiate in good faith to enter
into a definitive binding agreement based on the terms contained herein.
(b) The proposed transaction is subject to
(i)completion of the Buyer’s due diligence to its entire satisfaction;
(ii) execution of definitive agreement mutually satisfactory to both parties
on such further conditions and provisions as are reasonable for this kind of
transaction, including satisfactory valuation of the inventory as per date Y
as well as valuation principles to be used for the valuation of the inventory
as per the Closing Date;
(iii) approvals from the Board of Directors of both parties;
(iv) regulatory approvals required for the intended transaction, if any;
(v) execution by Seller in the favour of the Buyer of a guarantee for all the
Seller’s obligations pursuant to the definitive agreement and
(vi) execution by the Buyer in the favour of the Seller of a guarantee for all
obligations of the final buyer pursuant to the definitive agreement.’
Art. 13(c) of the Heads of Agreement further provides that ‘if no legally binding
agreement affecting the transaction contemplated herein has been signed on date
X, these Heads of Agreement shall have no further impact on the parties’.
[3] "In a subsequent document entitled ‘Due Diligence, Enquiry List, the two
French Companies’ (hereinafter the ‘Enquiry List’), Claimant’s Swedish parent
company requested that certain information regarding the companies to be
acquired be provided and specified that ‘[I]f no information is available, please,
indicate that as well’. Among the information requested were copies of ‘agree¬
ments which limit the Companies’ business, for instance on restriction of sales to
certain markets, customers, volumes etc.’ (Sect. 5.1.6), ‘[information on
whether any of the Companies has violated (or has been alleged to violate)
any laws, regulations or permits’ (Sect. 9.3) and ‘[qopies of all major market
research reports, or summaries thereof, prepared by or for the Companies' (Sect.
22.1). This Enquiry List was faxed by Claimant’s Swedish parent company to
Mr. H, managing director of Company X, one of the two French Companies,

with copy to Second Respondent. In the cover letter, the manager of Claimant’s
Swedish parent company stated that he was aware that a lot of information was
requested on short notice, but emphasized that ‘it is of extremely great impor¬
tance that the required information is prepared in time for our visits. If an article
in the enquiry list is not applicable, it is important that you supply this infor¬
mation too.’
[4] “The due diligence of the two French Companies took place during two
months. With respect to one of the two companies, it is undisputed that the due
diligence included interviews with its management and that a so-called data
room was constituted on the company’s premises, where binders containing
documents provided in response to the Enquiry List and to additional requests
were placed at the disposal of the potential buyers (i.e., Claimant or Claimant’s
Swedish parent company). These binders were labelled and subdivided with
cover pages.”
(....)
b. The Share Purchase Agreement
[5] "After the due diligence had been carried out and after several revised
drafts had been exchanged between the parties, First Respondent and
Claimant entered into the Share Purchase Agreement pertaining to the sale of
the shares in the two companies. The following provisions of the Share Purchase
Agreement are of particular relevance to this arbitration.
(a) Art. 3.1 of the Agreement provides that closing ‘shall take place on the
Closing Date [i.e., two business days after signature of the Agreement by both
parties] at the offices of a law firm.
(b) As for the purchase price, the parties agreed on an ‘Estimated Purchase
Price’ and on how the ‘Final Purchase Price’ would be established, i.e., by
bringing forth the ‘Adjustments of Estimated Purchase Price and Estimated
Net Indebtedness’ set forth in Art. 6.1 of the Agreement.
(c) Under Art. 5.1 of the Agreement, the parties also agreed that a so-called
‘Transfer Balance Sheet’ (balance sheet for each of the two companies) would be
prepared:
‘The Buyer shall cause the Acquired Companies, to prepare the Transfer
Balance Sheet in accordance with the French GAAP [Generally Accepted
Accounting Principles]. . . . The Transfer Balance Sheet shall be prepared in
consultation with the present statutory auditors of the Acquired Compa¬
nies and the auditors of the Buyer shall cause the Acquired Companies to
attach a document to the Transfer Balance Sheet identifying any difference
in opinion as to any balance sheet item affecting the Transfer Balance Sheet
between the statutory auditors and the auditors of the Buyers and remarked

-.--ÿ--TT: : .j,;: ■' ~ ; ••••:
I':: CASE NO. 12502, 2005

! ARBITRAL AWARDS
to die Acquired Companies or Buyer during the [course] of
of the Transfer Balance Sheet.’
the preparation
F (d) In this respect, Art. 5.2 of the Agreement adds: ‘In establishing the Transfer
&. Balance Sheet, the parties shall apply the additional accounting and adjustment
rules set out in Schedule 8 attached hereto.’
(e) As is usual in share purchase agreements, the Seller made various repre¬
sentations and gave warranties regarding the businesses of Company X and M
respectively. In relevant parts, Art. 7 of the Agreement reads as follows:
r:
£
‘Except as specified in exhibit 1, no Acquired Company is on the Closing
t. Date
(v) a party to any contract, agreement or similar arrangement containing

any terms or conditions not consistent with fair market terms, conditions
and prices;
(vii) a party to or bound by any agreement or similar arrangement in viola¬

tion of any antitrust or similar law in any jurisdiction in which any of the
Acquired Companies has conducted business.’ (Art. 7.6.3)
Page 4 of the Agreement, which contains a list of exhibits and which is initialled
by the parties, does not mention any exhibit 1.
(f) Art. 7.11.1 of the Agreement further provides that the Seller represents and
warrants, except as disclosed in Exhibit 7.10.5 or in Schedule 11, that:
‘... no Acquired Company has been served with any summons or notice
to àrbitrate, and there is no suit, administrative, arbitration or other le gal
proceedings pending or threatened against them, and there is no such suit or
proceedings pending or threatened by any of the Acquired Companies
against any person or party and there are no circumstances likely to give
rise to any such suit or proceedings.’
(g) Under Art. 7.14.1 of the Agreement, First Respondent also represented and
warranted that it had disclosed to Claimant’s Swedish parent company all cir¬
cumstances regarding the business of Company X of which it was aware that
could have an effect on Claimant’s decision to contract on the terms under
which the transfer was made:
‘The Seller is not aware of any facts or circumstances relating to the affairs
of the Acquired Companies which, if disclosed to the Buyer, might

reasonably have been expected to influence the decision of the Buyer to

purchase the shares in the Acquired Companies on the terms contained in
the Agreement.’
(h) Under Art. 8.1.1 of the Agreement, First Respondent further undertook to
indemnify Claimant’s Swedish parent company for the full loss suffered by
Claimant’s Swedish parent company, Company X or M and caused by any
breach of any of the warranties and representations given in the Agreement:
‘In case any of the warranties and representations given by the Seller in this
Agreement should not be correct or be inaccurate or there should otherwise
be any breach of the warranties or representations which results in reduced
assets or increased debts or in reduced income or increased costs affecting
the result of any Acquired Company at any time or in any damages, costs,
liabilities, expenses or losses for any of the Acquired Companies or the
Buyer, then the Seller shall, without any way limiting or modifying any
other obligation otherwise imposed upon the Seller by law or this Agree¬
ment or any right or remedy at law available to the Buyer indemnify and
hold the Buyer or, at Buyer’s option, the Acquired Company concerned
harmless against, subject to Article 8,1.2 below, the full loss suffered due to
any such reduction or increase or other damages, costs, liabilities, expenses
and losses, as the case may be.’
(i) Art. 8.2.1 of the Agreement, under the heading ‘Exemption of liability’,
provides as follows:
‘The Seller will not be liable for any claim for breach of warranties pursuant
to this Article to the extent:
(i) the matter giving rise to the loss has been reasonably apparently dis¬
closed in any Exhibit or Schedule to this Agreement provided that the Seller
has in good faith attempted to make the disclosure with reference to the
warranty most relevant for disclosure.’
(j) Art. 8.3, which addresses the ‘Duration of the warranties’, reads as follows:
‘8.3.1 The warranties granted to the Buyer by the Seller pursuant to this
Article shall remain valid for claims made by the Buyer until eighteen (18)
months after the Transfer Date, except that the liability of the Seller to
indemnify the Buyer for breach of warranties with respect to environmen¬
tal matters shall remain valid for a period of ten (10) years from the Transfer

- rr—; zrrr—zrzzzzsGEEisszcr-xv
--- .

Date (it being clarified that this provision shall not imply any extension of
the period specified in Article 10.3.2 below; and
(ii) any matter relating to an indemnity claimed as a consequence of any
request, demand, injunction, judicial or administrative procedure against
any of the Acquired Companies arising from a third party shall be indem¬
nified by the Seller for a period of three (3) years from the Transfer Date, it
being specified that any such third party action initiated in connection with
matters referred to under Article 8.3(i), (iii) and (iv) shall be subject to the
time limits specified under these paragraphs, and
8.3.2 In the event any third party action has been made prior to the end of
V any relevant time period set out in Ardele 8.3.1, the Seller shall remain liable
t: until sixty (60) days after an agreement between the parties has been
reached or a final and enforceable legal judgement or administration
order has been rendered against the Acquired Company concerned with
respect thereto.’
(k) Art. 8.4.1 of the Agreement further provides that:
‘The Buyer shall notify in writing the Seller of any event giving rise to the
implementation of the provisions of Article 8.1 above within thirty (30)
days from the date when the relevant division manager of the Buyer became
aware of such event.’
(1) The parties also agreed on the following choice of law clause and arbitration
clause (Art. 16 of the Agreement):
T6.1 This Agreement shall be governed by, and construed in accordance

with French law in effect at the date hereof. However, the parties agree that
the question of the legal binding effect of this Share Purchase Agreement
shall be governed by Swedish Law.
16.2 Except as expressly set out in Articles 5.3 or 10.3.4 above, any
dispute, controversy or claim arising out of or in connection with this
Agreement, or the breach, termination or invalidity thereof, shall be
referred to and finally settled by arbitration under the Rules of Conciliation
and Arbitration of the International Chamber of Commerce by three (3)
arbitrators appointed in accordance with the said Rules. The arbitration
proceedings shall take place in Paris, France. The language of the proceed¬
ings, documentation and the award shall be English.’
(m) Under Art. 15.1 of the Agreement, the parties agreed that the Agreement
would supersede any prior understanding, written or oral, with respect to the
transactions covered by the Agreement, in particular the Heads of Agreement:
Reprinted faun the Yearbook Commercial Arbitration 241

‘15.1 This Agreement, including all Schedules and Exhibits thereto, con-
stitutes the entire agreement between the parties with respect to the trans¬
actions covered hereby and supersedes any prior understanding, written or
oral, with respect to such transaction, including the Heads of Agreement.’
(n) In an undated letter referring to the Share Purchase Agreement that was sent
to Claimant’s Swedish parent company, Second Respondent guaranteed the due
performance of the Agreement: ‘We, as guarantor, hereby irrevocably and
unconditionally guarantee to the Buyer, the due, full and punctual performance
of any and all obligations of the Seller referred to in or as a result of the
Agreement, including the financial obligations.’ Second Respondent made
this letter of guarantee subject to the governing law and dispute resolution
mechanism provided for in the Agreement.”
2. Events Following the Conclusion of the Share Purchase Agreement
[6] “Approximately one month after closing, Mr. 2, chairman of the board of
Company X, attended a meeting of a trade association created with the purpose
of promoting the sales of the product and of gathering useful statistics regarding
the markets. However, beyond those ostensible and honourable purposes, the
trade association was allegedly also used as a tool to carry out anti-competitive
practices. Indeed, its members were allegedly engaging in anti-competitive prac¬
tices prohibited under Art. 81 (then 85) EC Treaty, such as price-fixing and
market sharing. As developed below, the EU Commission is currently carrying
out an investigation and will decide whether the association and its members did
actually engage into such illegal practices.
[7] “Be that as it may, Claimant submits that immediately after Mr. Z attended
the meeting, Company X refrained from engaging in any anti-competitive prac¬
tices within the association or, for that matter, within any other organizations
which are currently under the scrutiny of the EC Commission. At that time,
Claimant did not report or otherwise notify either of the Respondents of
that event, namely, that Company X had allegedly been engaged in illegal
anti-competitive practices.
[8] “In a letter of one month later, Claimant’s Swedish parent company
informed First Respondent that it had transferred an amount corresponding
to the final instalment on the purchase price of the two companies. Attached
to this letter was a breakdown of the Adjusted Net Equity according to the
Transfer Balance Sheet as per the agreed date. Claimant made no objection
regarding the alleged anti-competitive practices at that time either.
[9] “As required under French tax law for the assessment and payment of final
transfer and stamp duties (droit d'enregistrement et droit de timbre), the parties

$
to the Share Purchase Agreement entered into an Acte Complémentaire. Art. 4

of this Acte Complémentaire confirms the final transfer price for Company X’s
shares. Two months later, Claimant’s Swedish parent company sent to Second
Respondent an original copy of the Acte Complémentaire, which had been duly
registered with the French tax administration. Again, Claimant did not make
any objection regarding the alleged anti-competitive practices Mr. Z had
discovered.
[10] “It is undisputed that Claimant did not notify Respondents of Mr. Z’s
findings either within 18 months from Transfer Date (as provided by Art. 8.3.1
of the Share Purchase Agreement) or, for that matter, within the three-year
period from the Transfer Date, as provided by Art. 8.3.1(H) of the
* Agreement. However, as developed hereunder, the parties disagree on the rea¬
:
sons why Claimant did not notify Respondents and on whether the time limits
provided by Art. 8.3.1 of the Share Purchase Agreement apply or not.
i-
[11] “Three years later, the EU Commission issued a decision ordering
Company X and its subsidiaries to undergo an investigation by virtue of Art.
14(3) of the European Council Regulation No. 17/62. The EU Commission
initiated its investigation after having received information revealing that pro¬
ducers of the product, including the companies subject to this decision, were
participating or had participated in anti-competitive agreements and/or concert¬
ed practices consisting of (i) price fixing, (ii) market sharing and (Hi) mutual
allocation of certain tender offers and customers. The EU Commission further
indicated that such information had revealed the existence of an important
number of meetings among those producers, during which information about
prices, fixation of sales quotas and distribution of customers had regularly been
exchanged. The EU Commission added that, should the existence of such meet¬
ings be established, the agreements and/or above-mentioned practices might
constitute very serious breaches of Art. 81 of the EC Treaty.
[12] "In the following days, the EU Commission conducted an on-the-spot
investigation (a so-called ‘dawn raid’) at Company X’s premises. During this
dawn raid, the EU Commission seized various documents, copies of which were
communicated by Claimant to Respondents in accordance with Procedural
Order No. 3 rendered by the Arbitral Tribunal. The EU Commission issued
an undated statement to be produced before this Arbitral Tribunal confirming
that an investigation regarding suspected anti-competitive agreements and con¬
certed practices contrary to Art. 81 EC Treaty had been carried out on at
Company X’s premises.
[13] “Claimant submits that after the EU Commission had carried out the
dawn raid at Company X’s premises, Claimant Group’s management initiated
an internal investigation - including an audit of Company X’s files and inter¬
views with former employees - in order to determine whether and to what

extent the EU Commission’s suspicions were founded. Claimant has not

produced any internal document summarizing the result of the audit and/or
interviews carried out during the investigation, but did produce documents
which, in Claimant’s submission, show that Company X had participated, dur¬
ing the period First Respondent owned and controlled the company, in at least
three anti-competitive organizations.
[14] “Claimant’s Swedish parent company informed First Respondent about
the existence of the investigation initiated by the EU Commission and stated
that it considered First Respondent responsible for any possible consequences of
the EU Commission’s investigation pertaining to the period before the
acquisition:
‘We would like to inform you that the European Commission

(“Commission”) has initiated an investigation regarding an alleged cartel
amongst European producers of the product. The Commission has, within
the framework of its investigation, carried out an on the spot investigation
at the premises of Company X and seized copies of documents allegedly
containing evidence of the aforesaid alleged cartel and Company X’s par¬
ticipation therein. . .. The Commission claims that this cartel was founded
already in the 1970s and that it is still in force. This would mean that when
we acquired Company X from you the alleged cartel had existed for a long
time. ... As you were ultimately responsible for the operations of
Company X before the sale, we are of the opinion that you are responsible
for any consequences of the Commission’s investigation pertaining to the
said period of time.’
[15] “Second Respondent replied that, according to the Agreement, the war¬
ranty period concerning possible violation of antitrust or similar law had
expired, so that it could not be held responsible for any liability whatsoever.
[16] “After a further exchange of correspondence, in which the Parties basi¬
cally restated their respective positions, Claimant initiated these arbitral
proceedings.
Subsequent to the start of these arbitral proceedings, the EU Commission
issued a ‘Statement of Objections’, addressed, inter alia, to Company X,
Claimant, Claimant’s Swedish parent company, First Respondent and Second
Respondent, stating that it had found evidence of infringement of Art. 81 of the
EC Treaty by allocation of sales quotas and apportionment of market shares,
development of common price calculation models, fixing of prices, concerted
assignment of customers and orders, and the submission of concerted bids in
response to several invitations to tender. In its Statement of Objections, the EU
Commission indicated that based upon the evidence collected during the

s;
investigation and described in the Statement of Objections, it intended to render

a decision (i) finding that the undertakings to which the Statement of Objections
is addressed infringed Art. 81(1) of the EC Treaty, (ii) imposing fines on these
undertakings in accordance with Art. 15(2)(a) of Regulation No. 17 and (iii)
requiring these undertakings to terminate the infringements in accordance with
Art. 3 of Regulation No. 17. Given the transfer of ownership from the
Respondent Group to the Claimant Group, the EU Commission specified
that First Respondent and Second Respondent must be held jointly and severally
liable with Company X for the infringement committed by Company X, and
that Claimant’s Swedish parent company and Claimant must be held jointly and
severally liable with Company X.
[17] “The Statement of Objections also contains the following information,
which is of relevance to the present case: (a) A restricted meeting between several
■X-.
members of the trade association (including First Respondent) was held to for¬
mulate basic principles
‘with a view to improving the existing system for coordinating competition.

The system worked out extended beyond the the trade association structure
proper and was interned to cover the entire sector. The objectives that were
set included establishing a market leader at national and international level
and by product group, controlling imports more effectively and reducing
the number of competitors, while the means proposed comprised holding
regular meetings at managing director level, carrying out detailed work at
sales manager level, holding regional meetings by product group, reducing
capacities and appointing account managers for key customers.’
(b) Mr. Z attended three (in Respondents’ submission, possibly four) meetings
of the trade association after the sale of Company X. Respondents argue that this
participation did not concern anti-competitive practices, whereas Claimant sub¬
mits that anti-competitive practices were discussed during these meetings.
[18] “At the time of the issuance of this Award, the EU Commission has not
rendered its decision or, at least, such decision is not on record.”
{....)
II. PARTIES’ POSITIONS AND RELIEF SOUGHT
[19] “The Parties’ positions are summarized in this Section. They will be
further referred to [below] as and when a specific issue is reviewed.”

1. Claimant's Position
[20] “In its written and oral submissions, Claimant has advanced the following
main contentions.
[21] “Company X was engaged in illegal anti-competitive practices before its
acquisition by Claimant. Specifically, Claimant submits that the EU investiga¬
tion and the internal investigation carried out by Claimant after the dawn raid
revealed that Company X was engaged in anti-competitive practices, such as
price fixing and market sharing, within certain sector organizations.
[22] “First Respondent was aware that Company X was engaged in the above-
mentioned practices at the time of the transfer. In this respect, Claimant submits
that both managers who negotiated the Agreement on behalf of First
Respondent were aware of these anti-competitive practices. . . .
[23] “First Respondent deceitfully induced Claimant to enter into the
Agreement. Claimant contends that the deceit issue is governed by French
law (and not by Swedish law) under Art. 16 of the Agreement and that it is
entitled to indemnification under Arts. 1116 and 1382 of the French Civil Code
(the FCC). Specifically, Claimant submits that (i) First Respondent did not
disclose the anti-competitive practices during the due diligence and the negoti¬
ation of the Agreement, (ii) First Respondent made incorrect representations
and withheld information regarding the anti-competitive practices with the
intent to deceive Claimant and (iii) the deceitful acts were decisive for
Claimant’s decision to enter into the Agreement, i.e., Claimant would not
have entered into the Agreement (at least not under the same terms) if it had
known of the anti-competitive practices.
[24] “Regarding (ii), Claimant contends that it was Mr. H, a manager of
Company X, who deceitfully induced Claimant to enter into the Agreement.
In support of its argument, Claimant argues as follows: Mr. H knew about the
anti-competitive practices; he knew that such practices were not legal; he
prepared (or, at least, read) the answers to the questions in the Enquiry List
regarding market limitation and illegal activities; he knew that no information
about the anti-competitive practices had been given in response to those ques¬
tions, or during the due diligence process, although he had been given the task of
ensuring that Claimant received all the information it asked for; he prepared (or,
in any event, had the final responsibility for preparing) the exhibits to the war¬
ranties and representations made in the Agreement and therefore knew that the
representations and information given were not correct, but nevertheless decid¬
ed to keep silent about the anti-competitive practices; he had a very strong
incentive not to disclose the anti-competitive practices, given that First
Respondent had been trying to sell Company X since some years, and that
there were no other potential buyers left except Claimant; he knew that the

¥ÿ
S
f.
disclosure of the anti-competitive practices would have jeopardized the whole
transaction.
[25] “In sum, Claimant submits that Mr. H was aware both of the information
he concealed and its importance to the other party and that this is a case of a
deceit under French law. Claimant also contends that deceitful intent may be
presumed under French law in certain circumstances and that a French Court
would have presumed that the manager had the intent to deceive Claimant.
Claimant further argues that the manager’s deceit is attributable to First
Respondent, both under French law (the law of the contract) and Danish law
v (because First Respondent is a Danish company). In this respect, Claimant
■K submits that the deceit committed by the manager must be attributed to First
Í. ■
Respondent because he represented First Respondent in the negotiation of the
Agreement, or, alternatively, because Mr. Q, the representative of First
Respondent, assigned to Mr. H the task of collecting documents during the
due diligence, of providing them to Claimant’s Swedish parent company and
of selecting disclosures to be made to Claimant’s Swedish parent company.
[26] “Finally, it is Claimant’s submission that the liability for a deceit is
neither limited by Art. 8.3.1 of the Agreement nor may be waived by agreement
and, consequently, that it is not time-barred as alleged by Respondents.
[27] “First Respondent violated its pre-contractual duty to provide to
Claimant complete and correct information about the anci-competitive practices
during the negotiation of the Agreement and must therefore indemnify
Claimant under Art. 1382 of the FCC. In this respect Claimant submits that
under French law a party who accepts to provide information to another party in
the course of negotiation of a contract is under a duty to inform the other party
properly and fully. In Claimant’s view, First Respondent obviously failed to
discharge that duty. Claimant also contends that First Respondent’s failure to
provide correct information results in a liability irrespective of whether or not
that failure constituted a deceit and that it is sufficient that the failure to inform
constitutes a faute (negligence), which is the case here. Claimant further argues
that even if the Arbitral Tribunal were to accept Respondents’ argument that the
Heads of Agreement exclude the pre-contractual duty to inform under French
law, Respondents would still be under a duty to provide information on the anti¬
competitive practices under the provisions of the Heads of Agreements. Given
that First Respondent breached such duty. Respondents must pay damages to
Claimant on that basis.
[28] “First Respondent breached the warranties set forth in Arts. 7.6.3(vii)
(representation that there were no anti-competitive practices) and 7.14.1 of
the Agreement (representation that First Respondent was not aware of anything
that, if disclosed, might reasonably have been expected to influence Claimant’s
Swedish parent company’s decision to buy Company X). Claimant is therefore

entitled to indemnification in accordance with Art. 8.1.1 of the Agreement.

Claimant also contends that the time limit set forth in Art. 8.3 of the
Agreement does not apply either under French law (which, in Claimant’s
view, applies to this issue) or Swedish law because such time limitation clause
was entered into by the guarantor in bad faith.
[29] “Art. 8.4.1 of the Agreement, which provides that the Buyer (i.e.,
Claimant) shall notify the Seller (i.e., First Respondent) in writing of any
event giving rise to the implementation of the provisions of Art. 8.1 within
30 days from the date the relevant divisional manager became aware of such
event, does not preclude Claimant’s claims in this arbitration. Claimant notes
that it is not disputed that Mr. Z was the relevant divisional manager, that he
became aware of the anti-competitive practices at date W and that the Buyer did
not notify the Seller in writing within 30 days. Yet, according to Claimant, Art.
8.4.1 of the Agreement does not preclude Claimant’s claims because (i) French
law does not recognize clauses limiting liability in case of a deceit or extra-
contractual liability based upon Art. 1382 of the FCC and (ii) Art. 8.4.1 of
the Agreement does not apply to the contractual claim based upon the breach
of the warranties (this provision was not triggered before the dawn raid; in any
event, a failure to comply with Art. 8.4.1 does not entail any preclusion or any
other sanctions; in addition, French law does not enforce contractual provisions
limiting liability under guarantees if such limits were negotiated in bad faith,
which is the case).
[30] “Company X did not participate in anti-competitive practices after the
transfer to Claimant. Indeed, after Mr. Z’s participation in a trade association
meeting, it was decided that Company X would no longer engage in the type of
co-operation in which the trade association had been involved. Company X has
thus no longer been engaged in anti-competitive practices within any of the
organizations. . . .
[31] “Contrary to Respondents’ contention, Claimant has not waived any of
its claims. Claimant argues that there are no circumstances that could possibly be
construed as a waiver by Claimant of its rights. With respect to claims based
upon breach of the Agreement, Claimant contends that Art. 8.1.3 of the
Agreement expressly excludes any tacit waiver of such claims. With respect
to claims based upon a deceit or breach of pre-contractual duty, Claimant argues
that such claims cannot be waived before they have arisen and that no claims that
could be waived had arisen before the dawn raid. Furthermore, Respondents’
assertion that a waiver may be inferred from mere passive conduct is incorrect.
[32] “Claimant does not request compensation for future and uncertain
damages, as alleged by Respondents. In Claimant’s submission, this is so because
it does not claim compensation for damages in this arbitration. On the contrary,
it is because the damage that Claimant and Company X may incur will only be

determinable in the future that Claimant requests only a declaratory award on

liability.
[33] “Claimant did not fail to mitigate any damages, as alleged by
Respondents. Indeed, Respondents have not established that the risk for
Claimant of suffering a loss due to the fact that Company X was engaged in
anti-competitive practices would have been reduced if Company X had acted
differently after the discovery of the anti-competitive practices. Further,
Claimant argues that it was not aware of any anti-competitive practices before
the Commission’s dawn raid and, therefore, could not take any step to mitigate
its damages.
?,ÿ [34] “Respondents’ argument that their liability should be limited to the Final
Purchase Price and Net Indebtness in respect of Company X, and not the second
French Company, M, in accordance with Art. 8.2.2.2 of the Agreement, is
without any merit.
[35] “The fact that Respondents did not participate in Company X’s defence
in the EU Commission investigation is not relevant.
[36] “Finally, Claimant argues that Second Respondent’s liability is based
upon the (undated) letter the latter sent to Claimant and under which it
guaranteed the due performance of First Respondent’s obligations under the
Agreement.
[37] “Based upon all of the above submissions, Claimant seeks to obtain a
declaratory award on liability, declaring that First Respondent and Second
Respondent are jointly and severally liable to compensate Claimant for any
loss resulting from any fines imposed or any other measures taken by the EU
Commission in connection with its investigation. Claimant does not seek to
obtain an award on the quantum of the damages.
[38] “In Claimant’s submission, Respondents’ argument that the relief
requested cannot be granted because declaratory awards cannot be rendered
under French procedural law is without any merit. In this respect, Claimant
submits first that this arbitration is subject to the French rules regarding arbi¬
tration (specifically Arts. 1492 to 1507 of the French Code of Civil Procedure)
and the ICC Rules, under which its request for a declaratory award is admis¬
sible. Second, Claimant contends that as a matter of French rules of civil pro¬
cedure, the claim would be admissible since Claimant has an actual and personal
interest in having Respondents’ liability determined.
[39] “Claimant also submits that several of the issues discussed during the
proceedings (mitigation of damages, the cap set forth in Art. 8.2.2.2 of the
Agreement, the cessation of Company X’s anti-competitive practices) pertain
in fact to the quantum of damages. Although, in Claimant’s view, the quantum
issues should not be a problem because Respondents’ arguments on those points
are not founded, Claimant has emphasized that the Arbitral Tribunal would

be free to limit the liability of Second Respondent in the award (for instance,
by limiting the liability to the fines imposed up to the cap set forth in Art.
8.2.2.2 or by limiting the liability to the period before the acquisition of
Company X).”
2. Relief Sought by Claimant
[40] “In its latest submissions, Claimant requests the Arbitral Tribunal to:
(1) establish that First Respondent and Second Respondent are jointly and
severally liable pursuant to Art. 8.1.1 of the Agreement to compensate
Claimant for the full loss suffered by Company X and/or Claimant as a
consequence of any fines imposed or any other measures taken by the
European Commission in connection with or as a result of its investiga¬
tions ... ;
severally liable pursuant to relevant rules of French law to compensate
Claimant for any loss resulting from any fines imposed or any other mea¬
sures taken by the European Commission in connection with or as a result
of its investigations ... ;
(3) order First Respondent and Second Respondent to jointly and severally
bear the costs of this arbitration; and
(4) order First Respondent and Second Respondent to compensate Claimant
for its own costs in this arbitration, including costs of legal representation,
in an amount which will be specified subsequently.2
In the alternative, if the Arbitral Tribunal were to find that it cannot grant the
claims as stated above, Claimant requests the Arbitral Tribunal to:
severally liable pursuant to Art. 8.1.1 of the Agreement to compensate
Claimant for the full loss suffered by Company X and/or Claimant as a
consequence of the fact that Company X was and had been engaged in
anti-competitive practices at the time of the acquisition by Claimant of
Company X;
severally liable pursuant to relevant rules of French law to compensate
2. “Claimant has specified the amount of its claim for costs and expenses in its Statement of Costs.
The issue of the costs of the arbitration, including the Parties’ claim for costs and expenses, will be
discussed below [at [239]-[245]].”

I Claimant for any loss suffered as a consequence of the fact that Company
X was and had been engaged in anti-competitive practices at the time of the
Î acquisition of Company X by Claimant;
(7) order First Respondent and Second Respondent to jointly and severally
£ bear the costs of this arbitration; and
(8) order First Respondent and Second Respondent to compensate Claimant
for own costs in this arbitration, including costs of legal representation,
its
in an amount which will be specified subsequently.”3
#ÿ 3. Respondents’ Position
[41] “In their written and oral submissions, Respondents have advanced the
following main contentions:
(a) Pursuant to Art. 16 of the Agreement, all issues in connection with the
formation of the Agreement, including any alleged vices du consentement,
are governed by Swedish law, whereas French law governs the performance
of the Agreement. Since Swedish law applies to the formation of the Agree¬
ment, any allegation of a deceit must be assessed under that law.
(b) Claimant’s claim based upon an alleged breach of the Agreement is time-
barred. Respondents argue that, pursuant to Art. 8.3.1(ii)of the Agreement,
Claimant’s claim based upon an alleged violation of Arts. 7.6.3(vii) and
7.14.1 of the Agreement should have been made within a period of three
years from the Transfer Date. Respondents contend that there is no justi¬
fication for refusing to apply Art. 8.3.l(i) of the Agreement under either
French or Swedish law. With respect to French law, Respondents submit
that Art. 1150 of the FCC, upon which Claimant relies, does not apply in
the present case because it relates to a faute lourde or faute dolosive in
the performance of the agreement - as opposed to a fault in the formation
of the contract - and because Claimant’s allegations relate to the formation
of the agreement.
(c) Claimant’s claim based upon an alleged deceit is time-barred. Respondents
contend that deceit is governed by Swedish law under Art. 16.1 of the
Agreement, as deceit relates to the formation of the Agreement and not
to its performance. Respondents argue that such claim is time-barred under
Arts. 30, 33 and/or 36 of the Swedish Contract Act. Should the Arbitral
3. “Claimant has specified the amount claimed for costs and expenses in its Statement of Costs. The
issue of the costs of the arbitration, including the parties’ claim for costs and expenses, will be
discussed below at [[239]-[245]].”

Tribunal consider that French law is applicable, Respondents argue that

Claimant cannot base its claim upon Art. 1116 of the FCC. Rather, the
claim can only be based upon the so-called ‘warranty of hidden defects’ set
forth in Arts. 1641 et seq. of the FCC. Such claim would also be time-
barred, as it was not brought within a short period of time from discovery
as required under Art. 1648 of the FCC.
(d) Claimant’s claim based upon an alleged breach of a pre-contractual duty to
provide complete and correct information is also time-barred. In Respon¬
dents’ submission, the pre-Agreement period falls under the scope of the
Heads of Agreement. The extent of First Respondent’s duty to provide
information to Claimant must be assessed within the contractual frame¬
work of Art. 10 of the Heads of Agreement, which is governed by Danish
law. Claimant’s allegation that First Respondent violated Art. 10 of the
Heads of Agreement or Danish law falls outside the ratione materiae juris¬
diction of the Arbitral Tribunal, since the Heads of Agreement do not
contain an arbitration clause. In addition, the parties to the Heads of Agree¬
ment and the Share Purchase Agreement are not the same, so that it is not
possible to extend the jurisdiction of the Arbitral Tribunal, which is derived
from the arbitration clause in the Share Purchase Agreement, to the Heads
of Agreement.
(e) Claimant’s failure to notify the Seller as required by Art. 8.4.1 of the Agree¬
ment bars Claimant from seeking indemnification. It is not disputed that
the relevant division manager within the meaning of Art. 8.4.1 of the Agree¬
ment, did not inform the Seller about his discovery of anti-competitive
practices within the 30-day time limit. In Respondents’ submission, even
though the Agreement does not explicitly set forth the consequences of
Claimant’s failure to comply with Art. 8.4.1, it was clearly the intention of
the parties that Claimant would forfeit its right to indemnification as a
result of such failure. Such provision would also apply if the Arbitral Tri¬
bunal were to find that First Respondent deceitfully induced Claimant to
enter into the Share Pinchase Agreement.
(f) In any event, should the Arbitral Tribunal consider that Claimant’s claims
are not rime-barred, the evidence shows that First Respondent committed
no wrongful act, whether in contract or in tort. Indeed, there is no evidence
whatsoever showing that First Respondent was aware of the anti-compet¬
itive practices or showing wilful concealment.
(g) First Respondent did not breach the Agreement, in particular Arts.
7.6.3(vii) and 7.14.1 thereof. In this respect, Respondents contend that
(i) there is no certainty that Company X actually violated EU competition
law; (ii) First Respondent’s representatives were not aware of any (if any)
anti-competitive practices Company X was engaged in; and (iii) First

-
Respondent negotiated the Agreement in good faith (in particular, its
representative instructed managers of Company X to open Company
X’s files to Claimant for the purposes of the due diligence of Company
X, and to organize interviews as desired by Claimant). Neither Claimant’s
representatives were aware of Company X’s involvement in the alleged
anti-competitive practices. As for Company X’s manager H, Respondents
argue that he was not a First Respondent representative and was not
empowered to negotiate the Agreement. His role was to open the files,
i.e., make them available to Claimant’s representatives, at Company X
4 during the due diligence process. He committed no fraudulent conduct;
4 quite to the contrary, he took every step to ensure that Claimant was
provided with all relevant information. Respondents further contend
that Claimant was aware of Company X’s activities with one of the sector
organizations, because of the extensive due diligence, of the specific sensi¬
tivity to competition issues and of Claimant’s own cartel investigation in
Sweden.
(h) First Respondent did not violate any pre-contractual duty towards Clai¬
mant. In Respondents’ submission, First Respondent’s pre-contractual
duties are defined by Art. 10 of the Heads of Agreement, not by French
law as alleged by Claimant. First Respondent fulfilled ifs pre-contractual
duties under the Heads of Agreement, since it granted access to the relevant
documents and information requested by Claimant and never refused to
organize interviews requested by Claimant.
(i) First Respondent did not deceitfully induce Claimant to enter into the
Share Purchase Agreement. In this respect, Respondents argue that deceit
is governed by Swedish law, as this issue relates to the formation of the
Agreement. Whatever the applicable law is, Respondents contend that
Claimant has failed to prove that Second Respondent had the intent to
deceive Claimant. Indeed, to establish liability for a deceit, it is not suffi¬
cient for Claimant to merely show that Respondents allegedly made mis¬
representations or allegedly failed to disclose certain information. Such
alleged misrepresentations or concealment of facts must have been made
with the specific intent to deceive, which Claimant failed to prove in the
present case. In this respect, Respondents submit that neither Claimant’s
representatives at the negotiations were aware of the anti-competitive prac¬
tices. As for Company X’s representatives, they did not intend to withhold
any information whatsoever from Claimant. In any event, even if the Arbi¬
tral Tribunal were to conclude that Company X’s representatives had com¬
mitted deceitful acts, First Respondent would not be liable, because First
Respondent had no knowledge of the anti-competitive practices at
Company X and neither Swedish law nor French law permits First

Respondent to be held liable for a deceit committed by Company X’s

representatives. In any event, even if Claimant had proven that Respon¬
dents had fraudulently concealed information regarding anti-competitive
practices with the intent to deceive, its claim would have to be dismissed
because Claimant has failed to prove the element of causation between the
alleged deceitful acts and Claimant’s decision to enter into the Agreement.
(j) Mr. Z’s participation in meetings of one of the trade associations after the
closing of the acquisition constitutes, under all possibly applicable legal
systems, a forfeiture of Claimant’s right to indemnification.
(k) In any event, even if the Arbitral Tribunal were to conclude that Respon¬
dents breached the Agreement, breached any of their pre-contractual duties
or deceitfully induced Claimant to enter into the Agreement, it would have
to conclude that Claimant did not suffer any damage. In this respect,
Respondents contend that
(i) the relief requested by Claimant for a declaratory award does not exist
under French procedural law, so that no award can be rendered by the
Arbitral Tribunal unless and until a final decision is rendered by the
EU Commission regarding the alleged anti-competitive practices;
(ii) Claimant’s alleged damage is future and uncertain and, thus, cannot be
indemnified;
(iii) in any case, Claimant violated its duty to mitigate its damage, as it did
not inform the EU Commission about the anti-competitive practices
when it became aware of such practices. Had it done so, Claimant
could have obtained a reduction of the fine, up to a 100% exemption.
(1) In any case, the duration of the alleged infringement should be taken into
account and the liability should be determined pro rata temporis until the
acquisition only.
(m) As First Respondent is not liable towards Claimant, Second Respondent
does not have any liability under the letter of guarantee it issued in favour of
Claimant. Respondents also note that Art. 16(1) of EC Regulation No. 1/
2003 provides that the national courts should avoid rendering decisions
which would conflict with a decision contemplated by the Commission
in proceedings it has initiated. Respondents submit that although this Reg¬
ulation does not deal with the case of arbitral tribunals, the same reasons
which inspired it should encourage arbitral tribunals to follow similar
guidelines. In other words, in Respondents’ submission, any decision by
the Arbitral Tribunal rendered before the EU Commission has made a final
determination and all applicable remedies have been exhausted is
undesirable. Respondents note, however, that there is no reason for the
254 Reprinted from the Yearbook CommerciaJ Arbitration

:j

Arbitral Tribunal to be concerned with this issue of potential inconsisten¬
cies if the Arbitral Tribunal dismisses Claimant’s claims.”
4. Relief Sought by Respondents
[42] “Based upon all of the above submissions, Respondents request the
Arbitral Tribunal to determine that:
(1) the parties agreed, after extended negotiations and mutual concessions,
$ that the Agreement would cover in a definitive manner any and all
: potential indemnifications of the type sought in this arbitration; and
(2) pursuant to Art. 8.3.1(ii) of the Agreement, Claimant’s request for relief is
time-barred and, therefore, inadmissible.
Subsidiarily.
(3) the allegations made in the Request for Arbitration are unsupported as far
as Respondents are concerned;
(4) there was no breach of the Agreement by either of Respondents nor is there
any other legal basis, such as an alleged wrongful action of either of Respon¬
dents or otherwise, which could entitle Claimant to indemnification;
(5) the damage alleged by Claimant is speculative and eventual, and therefore
cannot be indemnified; and
(6) neither of the Respondents has any liability towards Claimant in this arbi¬
tration.
In any event:
(7) the request for relief brought by Claimant should be dismissed in its
entirety;
(8) Respondents should be compensated by Claimant for all costs and legal
fees incurred in connection with this arbitration;4
and
(9) Respondents should be granted any other just relief that the Tribunal will
deem appropriate.”
4, "Respondents have specified the amount claimed for costs and expenses in their Statement of
Costs, as amended by a later Counsel for Respondent’s letter. The issue of the costs of the
arbitration, including the Parties’ claim for coses and expenses, will be discussed below at
[[239]-[245]].”

III. ISSUES TO BE DETERMINED
[43] “The Arbitral Tribunal, having received voluminous submissions from

the parties and heard their respective witnesses, considers that the issues that
arise for its determination in this Final Award are in substance the following:
(i) Does the Arbitral Tribunal have jurisdiction over all claims brought in
this arbitration?
(ii) What are the applicable laws to the claims brought by Claimant?
(iii) Is the relief sought by Claimant admissible?
(iv) Has Company X engaged in illegal anti-competitive practices at the time
of its acquisition by Claimant?
(v) Did Respondents or one of them deceitfully induce Claimant to enter
into the Agreement?
(vi) Did Respondents or one of them breach the Agreement?
(vii) Did Respondents or one of them commit a pre-contractual breach?
(viii) Under the applicable contractual and legal provisions, are any of the
alleged claims time-barred?
(ix) What are the costs and fees of this arbitration, and how should they be
allocated?”
IV. JURISDICTION OF THE ARBITRAL TRIBUNAL
[44] “The jurisdiction of the Arbitral Tribunal is derived from the arbitration
clause contained in Art. 16.2 of the Agreement, which provides as follows:
‘Except as expressly set out in Articles 5.3 or 10.3.4 above, any dispute,
controversy or claim arising out of or in connection with this Agreement,
or the breach, termination or invalidity thereof, shall [be] referred to and
finally settled by arbitration under the Rules of Conciliation and Arbitra¬
tion of the International Chamber of Commerce by three (3) arbitrators
appointed in accordance with the said Rules. The arbitration proceedings
shall take place in Paris, France. The language of the proceedings, docu¬
mentation and the award shall be English.’
In the Terms of Reference, the Parties confirmed that they had no objection to
the jurisdiction of this Arbitral Tribunal. Subject to the one exception men¬
tioned below, the parties thus agree that the Arbitral Tribunal has jurisdiction
over the present dispute.

:-:C-::-::-:î ._ i ■:.- - .-•
I
à(}- CASE NO. 12502, 2005 ARBITRAL AWARDS
35 [45] “With respect to Claimant’s claim based upon the alleged breach of Art.
10 of the Heads of Agreement, Respondents argue that such claim falls outside
the ratione materiae jurisdiction of the Arbitral Tribunal since the Heads of
fi Agreement contain no arbitration clause. Respondents also contend that the
parties to the Heads of Agreement and the Share Purchase Agreement are not
the same, so that it is not possible to extend the jurisdiction of the Arbitral
Tribunal to the Heads of Agreement.
[46] “In Claimant’s view, its claim based upon a violation of Art. 10 of the
Heads of Agreement is arbitrable before this Tribunal. Specifically, Claimant
submits that disputes and claims related to the negotiation and other related
procedures preceding the execution of the Agreement itself, including its claim
based upon a violation of Art. 10 of the Heads of Agreement, are so closely
connected with the Agreement that they must fall under the arbitration clause,
under which any dispute, controversy or claim arising out of or ‘in connection
with’ the Agreement shall be referred to arbitration, Claimant further submits
that this must surely have been the intention of the parties and that it would be
meaningless and impracticable to handle disputes related to the transaction as
such differently, depending on whether they originate in the period before or
after the execution of the Agreement.
[47] “The Arbitral Tribunal finds that Claimant’s claim based upon the alleged
violation of Art. 10 of the Heads of Agreement falls within the scope of the
arbitration clause contained in the Agreement. Indeed, the arbitration clause,
which refers broadly to all disputes ‘in connection with the contract’, must be
understood to encompass, inter alia, all disputes as to the negotiation and con¬
clusion of the Agreement. As Claimant’s allegation that First Respondent
breached Art. 10 of the Heads of Agreement is one of Claimant’s arguments
in support of its allegation that First Respondent breached its pre-contractual
duty to inform before entering into the Share Purchase Agreement, there can be
no doubt that such dispute is ‘in connection with’ the Agreement.
[48] “Furthermore, it should be stressed that the parties specifically referred to
the Heads of Agreement in the Share Purchase Agreement. Indeed, Art. 15.1 of
the Agreement provides that the Agreement supersedes any prior understanding
‘with respect to the transactions covered’ by the Agreement, ‘including the
Heads of Agreement’. Irrespective of whether or not Claimant is still entitled
to rely upon the Heads of Agreement,5 this shows, in the Arbitral Tribunal’s
view, that disputes regarding the Heads of Agreement are ‘in connection with’
the Agreement.
5. “This question will be addressed below. As will be explained, the Arbitral Tribunal finds that,
given the clear wording of Art. 15.1 of the Agreement, Claimant is no longer entitled to rely upon
the Heads of Agreement.”

[49] “It is true that the Heads of Agreement were entered into between First
Respondent and Claimant’s Swedish parent company, whilst the Share Purchase
Agreement was entered into between First Respondent and Claimant (i.e., a
French subsidiary of Claimant’s Swedish parent company). However, in the
Arbitral Tribunal’s view, this does not alter the conclusion that Claimant’s
claim based upon an alleged breach of Art. 10 of the Heads of Agreement
falls within the scope of the arbitration clause of the Agreement. Indeed, the
parties specifically referred to the Heads of Agreement in the Share Purchase
Agreement by providing that the latter superseded the former. This shows that
the fact that the parties to the Heads of Agreement and the Share Purchase
Agreement were not the same, but within the same Group, was not material
to the parties.
[50] “Furthermore, it is contradictory for Respondents to argue, on the one
hand, that the Share Purchase Agreement superseded the Heads of Agreement
(although the parties were not the same) and, on the other hand, to raise the
argument that the parties were not the same in the context of jurisdiction.
Precisely, in this arbitration, Claimant is directing its claims, including its claims
based upon Art. 10 of the Heads of Agreement, against the signatories of the
Share Purchase Agreement - directly or by reference in the letter of guarantee -
and not against the signatory of the Heads of Agreement. Whether Claimant
may derive rights from such Heads of Agreement is a substantive issue and not
one of jurisdiction. In order to be complete, it may be fitting to add that juris¬
diction goes to claims rather than to issues necessary to determine such claims:
Claimant is not raising a direct claim predicated on the Heads of Agreement, but
merely adding one more ground for the Arbitral Tribunal to grant its prayers for
relief.
[51] “For the above reasons, the Arbitral Tribunal finds that it has jurisdiction
over all claims brought in this arbitration.”
V. APPLICABLE LAW
[52] “As already explained, Claimant’s claims in these proceedings are based
upon the following three grounds:
(a) First Respondent deceitfully induced Claimant to enter into the Agree¬
ment, so that Respondents must indemnify Claimant for any damages
incurred as a consequence of such deceit;
(b) First Respondent breached the warranties set forth in Arts. 7.6.3(vii) (rep¬
resentation that there were no anti-competitive practices) and 7.14.1 (rep¬
resentation that First Respondent was not aware of anything that, if
disclosed, might reasonably have been expected to influence the decision

¡

of Claimant to buy Company X) of the Agreement, so that Claimant is
entitled to indemnification in accordance with Art. 8.1.1 of the Agreement;
and
(c) First Respondent violated its pre-contractual duty to provide complete and
correct information about the anti-competitive practices to Claimant dur¬
ing the negotiation of the Agreement and must, therefore, indemnify Clai¬
mant.
[53] “The question arises what law governs each of the above-mentioned
issues. Before examining this question, it is useful to reproduce Art. 16.1 of
the Agreement, which contains the following choice of law clause:
T6.1 This Agreement shall be governed by, and construed in accordance

with French law in effect at the date hereof. However, the parties agree that
Ü- the question of the legal bindinq effect of this Share Purchase Agreement
shall be governed by Swedish Law.’ (Emphasis added)”
1. Law Applicable to Deceit
a. Claimant’s position
[54] "Claimant submits that French law governs the deceit issue in accordance
with Art. 16.1 of the Agreement.
[55] “Specifically, Claimant argues that the wording ‘the question of the legal
binding effect of this Share Purchase Agreement shall be governed by Swedish
Law’ was added for a very specific reason, namely to avoid any challenge to the
enforceability of the Agreement under French law based upon the uncertainty of
the price. Indeed, while the parties had agreed throughout the negotiations that
the Agreement would be governed by French law, shortly before signature of
the Agreement, they became aware that, under French law, a share purchase
agreement must specify the purchase price with a certain exactness in order to be
valid. The parties were uncertain whether the Agreement complied with such
requirement. Due to this uncertainty, the Swedish Claimant proposed that the
legally binding effect of the Agreement be governed by Swedish law. In
Claimant’s submission, given the purpose of this last-minute amendment,
Art. 16.1 of the Agreement does not provide for application of Swedish law
to anything but actions for nullification on formal grounds. Claimant adds that
in fact, it could very well be argued that such clause does not provide for the
application of Swedish law to anything but actions for nullification based upon
the French provisions on purchase price, which were the specific provisions of

French law that the parties wished to avoid. Hence, the parties did not intend to
apply Swedish law to the formation of the Agreement, including any deceit
issue.
[56] “Claimant further submits that the Arbitral Tribunal should apply the
rules of law it deems appropriate to the issue of whether or not deceit by Mr. H
should be attributed to First Respondent, in accordance with Art. 17(1) of the
ICC Rules. In this respect, Claimant argues that the two possible choices appear
to be French law (the law governing the Agreement) or Danish law (because
First Respondent is a Danish company).”
b. Respondents’ position
[57] “Respondents submit that under Art. 16 of the Agreement, Swedish law
governs all issues in connection with the formation of the Agreement, whereas
French law governs the performance of the Agreement.
[58] “Respondents have explained in their written submissions that shortly
before the scheduled date of the execution of the Agreement, the French lawyers
responsible for the acquisition warned the parties that, under French law, the
uncertainty of the price might affect the proper formation of the Agreement and
its subsequent enforceability. Although neither Claimant nor First Respondent
wished to postpone the execution of the Agreement, they did not want to run the
risk that the Agreement might not be enforceable. Both parties’ respective legal
counsel knew more about Swedish and Danish law than French law, and knew
that under both of these legal systems, the Agreement was valid and binding.
Respondents submit that because the parties were not sure whether there might
be aspects of the Agreement other than the uncertainty of the price that might
render the Agreement unenforceable under French law, their counsel jointly
decided that Swedish law should govern not only the price issue, but also all
matters relating to the formation of the Agreement.”
c. Discussion and decision
[59] “It is undisputed that during the negotiation of the Agreement, the parties
first agreed that French law would govern the Agreement. But when the parties
realized that, under French law, the uncertainty of the price might affect the
proper formation of the Agreement and its subsequent enforceability, they
agreed at the eleventh hour to submit ‘the question of the legal binding effect
of this Share Purchase Agreement’ to Swedish law.
(....)
[60] “It appears that the uncertainty of the price under Arts. 1583 and 1591
(and Art. 1129, insofar as applicable to sale agreements) of the FCC was the

î
concern that led the parties to agree that the ‘question of the legal binding effect’
of the Agreement would be governed by Swedish law. Under Art. 1591 of the
FCC, a contract is valid only if the subject matter of the obligation is determined
(which case law, at least traditionally, held to mean that the price was either
ascertained or ascertainable ( déterminé ou déterminable) by the parties in their
agreement). To avoid the consequences of a possible ambiguity in the exact
determination of the price, the parties decided to have this very question gov¬
erned by Swedish law. . . .
[61] "On the basis of the evidence on record, the Arbitral Tribunal is of the
opinion that by stipulating the ‘question of the legal binding effect* of the
Agreement, the parties did not intend all issues in connection with the formation
of the Agreement to be subject to Swedish law. Rather, the parties simply
wanted to submit to Swedish law those issues which could have given rise to
problems if they had been governed by French law, specifically the issue of the
determination of the price and possibly other formalities required under French
law. In other words, the parties were in a situation where they had agreed to
French law governing their Agreement and had negotiated, drafted and retained
legal advice for their Agreement under French law. Faced with a specific snag
under French law (the certainty of the price, possibly also the need for an ordre
de mouvement), which could affect the legal binding effect of their contract,
they adopted Swedish law only for this limited aspect.
[62] "The Parties had otherwise already agreed that French law was to govern
the Agreement and amended Art. 181 of the Agreement with the applicability of
French law in mind. Thus, in the Arbitral Tribunal’s opinion, Swedish law is
applicable solely as an exception and should be strictly confined to what the
parties had envisioned, namely issues regarding the determinability of the price
and possibly other formalities which French law would require.
[63] "Deceit is a matter of contract formation rather than performance, as it
affects the consent of one of the parties to an agreement. Nevertheless, the
formation of the Agreement in its globality is not what the Parties considered
when they agreed as to the exceptional application of Swedish law: aptly, they
used the restrictive wording ‘legal binding effect’.
[64] “On the basis of the foregoing, the Arbitral Tribunal finds that French
law governs the issue of deceit.
[65] "The question of whether the alleged knowledge of the anti-competitive
practices and whether the alleged deceit committed by Mr. H could and should
be attributed to First Respondent is, thus, a matter that the Arbitral Tribunal
considers should also be decided under French law, the law chosen by the parties
to govern their Agreement.”
Reprinted from the Yearbook CommerciafArbitration 261

2. Law Applicable to the Alleged Breach of Contract
[66] “It is common ground between the parties that French law governs the
alleged breach of the Agreement, in accordance with Art. 16.1 of the
Agreement.”
3. Law Applicable to the Alleged Pre-Contractual Breach
[67] “Claimant submits that French law governs the question of whether or
not First Respondent committed a pre-contractual breach.
[68] “In Claimant’s submission, Respondents’ argument that the pre-contrac¬
tual duty to inform under French law is excluded in the present case since a pre¬
contract - namely the Heads of Agreement, which are governed by Danish law -
was entered into is without any merit, for the following reasons.
[69] “Pursuant to Art. 13(c) of the Heads of Agreement, ‘if no legally binding
agreement affecting the transaction contemplated herein has been signed by date
X these Heads of Agreement shall have no further impact on the parties’. Given
that the Share Purchase Agreement was signed later than that date and given that
there is no convincing evidence showing that the parties amended the date of
expiry of the Heads of Agreement, the latter have become null and void. In any
event, even if the Heads of Agreement could be shown to have survived the
expiry date set forth in Art. 13(c), the Share Purchase Agreement would have
definitively deprived the Heads of Agreement of any legal effect between the
parties, since the parties agreed that the Agreement would supersede any prior
understanding covered by the Agreement, in particular, the Heads of Agreement
(Art. 15.1 of the Agreement). In Claimant’s submission, given that the Heads of
Agreement have become null and void, they cannot exclude the pre-contractual
duty to inform under French law.
[70] “Claimant submits that if the Arbitral Tribunal were to accept
Respondents’ argument that the Heads of Agreement exclude the pre-contrac¬
tual duty to inform under French law, then Respondents pre-contractual duty
would be governed by the Heads of Agreements, which in turn are governed by
Danish law.”
[71] “In Respondents’ submission, Claimant does not have any cause of action
under French law for breach of a pre-contractual duty, because the Heads of
Agreement, which are governed by Danish law, constitute a pre-contract

: MTrir-
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à
specifically setting forth in its Art. 10 the extent of First Respondent’s duty to
provide information in the context of the due diligence. Respondents also sub¬
mit that the issue of whether First Respondent breached the Heads of
Agreement falls outside the scope of the parties’ arbitration agreement.
Y
[72] “In any event, if the Arbitral Tribunal were to find that it has jurisdiction
over an alleged breach of the Heads of Agreement or related issues under Danish
law - which is the case - Respondents submit that Art. 15.1 of the Agree ment
shows that the parties have manifested their intention to replace the Heads of
Agreement entirely and have all relationships relating to the formation of the
Share Purchase Agreement governed by Swedish law, in application of Art. 16.1
of the Agreement. In Respondents’ submission, this is also the case for an alleged
breach of pre-contractual duty to inform, which, to the extent that the parties
have decided that the Heads of Agreement should be terminated and have no
further effect, should be governed by the law governing the formation of the
ir
Agreement itself, i.e., Swedish law, and not by the general tort law provisions
under French law.”
[73] “As mentioned above, the Arbitral Tribunal has jurisdiction over
Claimant’s claim based upon an alleged breach of Art. 10 of the Heads of
Agreement.
[74] “In order to determine which law applies to the alleged pre-contractual
liability of Respondents, it is first necessary to determine whether Claimant can
still rely upon the Heads of Agreement, which are governed by Danish law, and
if so, whether Claimant’s pre-contractual claim based upon French law is
excluded because a pre-contract, namely the Heads of Agreement, was entered
into.
[75] “Art. 13(c) of the Heads of Agreement provides that ‘if no legally binding
agreement affecting the transaction contemplated herein has been signed on date
X, these Heads of Agreement shall have no further impact on the parties’. It is
undisputed that the Share Purchase Agreement was signed after that date.
Relying upon a legal opinion by a Danish law expert, Claimant argues that in
the absence of evidence showing that the parties amended the date of expiry of
the Heads of Agreement, the latter have therefore become null and void.
[76] “Whether or not the Heads of Agreement have really become null and
void simply because the parties did not enter into the Share Purchase Agreement
before the expiry of the deadline set forth in Art. 13(c) of the Heads of Agreement
can be left open, since the parties agreed that the Agreement would supersede any
prior understanding covered by the Agreement, in particular, the Heads of
Agreement. Indeed, Art. 15.1 of the Agreement reads as follows:

‘15.1 This Agreement, including all Schedules and Exhibits thereto, con¬
stitutes the entire agreement between the parties with respect to the trans¬
actions covered hereby and supersedes any prior understanding, written or
oral, with respect to such transaction, including the Heads of Agreement.’
[77] “Given the clear wording of Art. 15.1 of the Agreement, which specifi¬
cally refers to the Heads of Agreement, the Arbitral Tribunal finds that
Claimant can no longer rely on the Heads of Agreement. Indeed, this provision
clearly shows that upon signature of the Share Purchase Agreement, the parties
intended to replace the Heads of Agreement retroactively and in their entirety,
including the choice of law clause contained in the Heads of Agreement, by the
Share Purchase Agreement. At the time the parties entered into the Agreement,
the Heads of Agreement - the scope of which largely overlaps with the
Agreement- had fully served their purpose. They had been carried out and
had no standing to survive once the parties had reached their final arrangement.
Hence, the law governing the alleged pre-contractual liability must be deter¬
mined by application of Art. 16.1 of the Agreement.
[78] "As mentioned above, the Arbitral Tribunal has found that French law
governs the Agreement and that Swedish law is applicable solely as an exception
and should be strictly limited to what the parties had envisioned, namely issues
regarding the determinability of the price and possibly other formalities under
French law. The question of the pre-contractual duty to inform does not fall
under such exception. The alleged breach of First Respondent’s pre-contractual
duty to inform Claimant about the alleged anti-competitive practices is there¬
fore governed by French law.”
VI. CLAIMANT’S REQUEST FOR A DECLARATORY AWARD
1. Respondents’ Position
[79] “In their Statement of Defence, Respondents argue that Claimant’s

request for relief is not admissible. Specifically, Respondents submit that declar¬
atory awards or judgments regarding a speculative and future situation do not
exist under French civil procedural law, which opposes them unless a specific
provision authorizes them. In other words, Respondents submit that unless and
until a final decision regarding the alleged anti-competitive practices has been
rendered by the EU Commission (or any appellate body), no award can be made
retaining First Respondent’s Lability.
[80] “Respondents also argue that Claimant cannot reasonably claim damages
for the totality of the fine that the EU Commission might impose, because, for

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example, the EU Commission could find that the alleged anti-competitive prac¬
tices continued after the acquisition of Company X’s shares.”
i
[81] "In its Reply to Respondents Statement of Defence, Claimant submits
that the relief sought is admissible.
[82] “Specifically, Claimant argues that the rules upon which Respondents
rely are French rules of civil procedure which do not apply to this arbitration.
x In Claimant’s view, this arbitration is governed by the French rules on arbitra¬
tion, i.e., Arts. 1492 to 1507 of the French Code of Procedure and by the ICC
Rules, under which Claimant’s request for a declaratory award is admissible.
Claimant further submits that its claim would in any event also be admissible
under French rules of civil procedure, since Claimant has an actual and personal
interest to have Respondents’ liability determined.
[83] "In its Post-Flearing Memorandum, Claimant noted that its prayer for
relief has been phrased so that it requests the Arbitral Tribunal to establish that
Second Respondent is liable for the loss suffered as a consequence of the ‘fines
imposed’ by the Commission, which means that the Arbitral Tribunal may have
to address the question whether the future fines are subject to compensation in
their entirety or whether this is the case only for part of the fines.
[84] “Claimant has also stated that although the quantum issues should not be
a problem given that Respondents’ arguments on those points are not founded,
the Arbitral Tribunal would be free to limit the liability of Second Respondent,
e.g., by limiting the liability of the period before the acquisition of Company X.
In the event that the Arbitral Tribunalshould find that a quantum issue has to be
addressed but that such limitation cannot be made for [practical] reasons,
Claimant has requested the Arbitral Tribunal to grant alternative prayers for
relief, requesting the Arbitral Tribunal to establish that Second Respondent is
liable for the loss suffered as a consequence of the fact that ‘Company X was and
had been engaged in anti-competitive practices at the time of the acquisition by
Claimant of Company X’.”
3. Discussion and Decision
[85] "Respondents submit that declaratory awards are not admissible under
French law. As correctly pointed out by Claimant, Respondents rely upon
French rules of civil procedure, which are not applicable to international arbi¬
trations. Furthermore, nothing prevents a party from seeking a declaratory
award under the French rules on arbitration or under the ICC Rules.

[86] “Respondents’ argument is therefore without any merit and the Arbitral
Tribunal finds that the declaratory relief sought by Claimant is admissible.”6
VII. ANTI-COMPETITIVE PRACTICES
[87] -
“All of Claimant’s causes of action i.e. (a) First Respondent deceitfully
induced Claimant to enter into the Agreement; (b) First Respondent breached
the warranties set forth in Arts. 7.6.3(vii) and 7.14.1 of the Agreement; and
(c) First Respondent violated its pre-contractual duty to provide complete
and correct information - are based upon the same premise, namely that
Company X was engaged in illegal anti-competitive practices before its acqui¬
sition by Claimant and that such practices were not disclosed to Claimant before
the entering into of the Share Purchase Agreement.
[88] “Below, the Arbitral Tribunal will first examine whether Company X
was engaged in anti-competitive practices before its acquisition by Claimant. If
so, the Arbitral Tribunal will then examine whether such practices were dis¬
closed to Claimant during the negotiation of the Share Purchase Agreement and/
or upon its signature.”
1. Prior to Company X’s Acquisition by Claimant
[89] “Claimant submits that the EU investigation and/or the internal inves¬
tigation carried out by Claimant after the dawn raid revealed that Company X
had been engaged before its acquisition by Claimant in anti-competitive prac¬
tices, such as price fixing and market sharing, within certain following
organizations.
(••••)
[90] “Claimant further submits that the testimonies of witnesses all show that
Company X was engaged in anti-competitive practices before its acquisition by
Claimant and that they were aware of such practices. As for Second
6. “As will be explained below, the Arbitral Tribunal dismisses Claimant’s claims based upon an
alleged deceit by First Respondent, its claim based upon an alleged breach of the Agreement, as
well as its claim based upon an alleged breach of First Respondent’s pre-contractual duty. Thus,
whether Claimant’s principal relief sought (Le. its request that the Arbitral Tribunal establish that
First Respondent is liable for the loss suffered as a consequence of the 'fines imposed’ by the
Commission) or only its alternative prayer for relief (Le. its request that the Arbitral Tribunal
establish that First Respondent is liable for the loss suffered as a consequence of the fact that
‘Company X was and had been engaged in anti-competitive practices at the time of the acquisition
by Claimant of Company X’) is admissible, has become moot.”

jj
CASE NÓ. 12502, 2005 ARBITRAL AWARDS
Respondent’s in-house counsel, Claimant has indicated that she has never stated
that she was aware of the anti-competitive practices and that there is no reason to
doubt her testimony in this regard. With respect to Mr. Q, who was a member of
the Board of Company X and then Chairman of the Board, Claimant argues that
he was also aware of these anti-competitive practices.
[91] "Claimant’s argument regarding Mr. Q’s alleged knowledge of such prac¬
tices is based upon two allegations: Mr. Q, as a member of the management of
Company X, was actively involved in the management of the company and in
particular took an active part in the pricing strategies of the company, so that he
must have been aware of the practices.
?.. [92] “The Statement of Objections issued by the Commission contains infor¬
'
mation that Mr. Q participated in a meeting between several members of the

trade association during which anti-competitive practices were discussed.
Specifically, the Statement of Objections mentions that this meeting was held
to formulate basic principles
‘with a view to improving the existing system for coordinating competition.

The system worked out extended beyond the trade association structure
proper and was intended to cover the entire range of products. The objec¬
tives that were set included establishing a market leader at national and
international level and by product group, controlling imports more effec¬
tively and reducing the number of competitors, while the means proposed
comprised holding regular meetings at managing director level, carrying
out detailed work at sales manager level, holding regional meetings by
product group, reducing capacities and appointing account managers for
key customers.’
This information is based upon the handwritten notes taken by the managing
director of another member of the trade association at this meeting, which
mention Mr. Q’s name.
[93] “Claimant submits that these notes are clear evidence that Mr. Q partic¬
ipated, as a representative of First Respondent, in a meeting during which severe
anti-competitive practices were discussed and that he was aware of such prac¬
tices. Claimant further submits that Respondents’ argument that the meeting
was in fact a meeting regarding a specific project [Project S] should be rejected:
there are clear indications that such meeting was between selected producers of a
product on a European level and that the participants were not the same as the
companies involved in Project S. Furthermore, Claimant submits that Mr. Q’s
participation in the project’s meetings confirms that Mr, Q’s knowledge of the
business of Company X was much more detailed than what he has wished to
admit during the hearing. In particular, this shows that Mr. Q was aware of, and

actively involved in, Company X’s pricing strategy, which he discussed with Mr.
H and with another manager, who were aware of the anti-competitive practices.
Claimant contends that under such circumstances, it is simply impossible that
Mr. Q was unaware of the anti-competitive practices at Company X.”
[94] “In their written submissions, Respondents have neither denied nor
admitted that Company X had been engaged in anti-competitive practices
before its acquisition by Claimant. Respondents have noted, however, that
while Claimant must prove that Company X was engaged in anti-competitive
practices at the time it was sold in order to prevail in the arbitration, whether or
not Company X was engaged in anti-competitive conduct at that time is not
relevant to Respondents’ principal defences, namely, that Claimant’s claims are
time-barred, that First Respondent committed no deceit or similar wrong or, in
the alternative, that Claimant waived its right to indemnification.
[95] “With respect to Mr. Q, Respondents submit that he was not aware of any
anti-competitive practices at Company X or of the existence of the trade asso¬
ciation (and, a fortiori, any anti-competitive practices within that organization).
Regarding Mr. Q’s alleged participation in a meeting during which anti-com-
petitive practices were allegedly discussed, Respondents submit that while it is
true that Mr. Q participated in meetings that included certain competitors of
Company X within the context of Project S which did not involve anti-com¬
petitive practices, he never participated in any meeting of the trade association or
any other actual or alleged anti-competitive organization in that business, before
or after the date of the sale of Company X.
[96] “In this respect, Respondents submit that . . . the Statement of
Objections and Claimant’s interpretation of the hand-written notes - which
mention Mr. Q - are based upon many wrong, or at best uncertain, premises:
(a) First, a confusion between the trade association and Project S, itself based
upon a speculation of someone at the other member company who suc¬
ceeded the person who took the handwritten notes and who had therefore
no personal knowledge of the events. That person, in Respondents’ sub¬
mission, guessed that Project S could be a nickname for the trade associ¬
ation, which is wrong.
(b) Second, a characterization of the handwritten notes as one single document,
which is far from clear.
(c) Third, the absence of explanation of the context of the various notes
produced, i.e., whether they correspond to one meeting, or different meet¬
ings, or, perhaps because there was no meeting at all, to a discussion or
series of discussions with one or more unnamed persons.”

r
c
[97] “As correctly pointed out by both parties, in order to prevail in chis
arbitration, Claimant must establish, inter alia, that Company X was engaged
in illegal anti-competitive practices prior to its acquisition by Claimant. For the
reasons set forth below, the Arbitral Tribunal finds that the record shows that,
prior to its acquisition by Claimant, Company X had been engaged in illegal
anti-competitive practices within certain organizations and that Mr. H, Mr. B
and Mr. P were aware of such practices. The Arbitral Tribunal finds, however,
that Mr. Q was not aware of such practices at that time.”
v:
L Company X was engaged in anti-competitive practices within certain
organizations and Mr. H, Mr. B and Mr. P were all aware of such
practices
£ÿ
[98] “Documentary evidence on record clearly shows that Company X was a
member of certain organizations. One of the managers [Mr. B] confirmed that
Company X was a member of these organizations and testified at the hearing
that the participation in these organizations involved some illegal practices.
More specifically, with respect to the trade association, Mr. B testified that
the trade association meetings usually began with an official part, followed
by a quite unofficial second phase, during which the various members’ repre¬
sentatives, including Company X’s, would fix prices and distribute markets. Mr.
B also testified that there would be no record of the second phase of the meetings
and that he would keep his files at home rather than on Company X’s premises,
in order to preserve confidentiality. Consistent with Mr. B’s testimony, Mr. P
also testified that Company X had been engaged in anti-competitive practices,
within the trade association and other organizations, until its acquisition by
Claimant. He confirmed during the hearing that he knew at the time that
these practices were illegal. Both Mr. B and Mr. P testified that Mr. H,
Company X’s General Manager at the time, knew about the anti-competitive
practices and that he actually personally attended several meetings during which
anti-competitive practices were discussed .... Mr. B and Mr. P also both
testified that they were instructed to attend the meetings during which anti¬
competitive practices were discussed by their supervisors, i.e., in particular
Mr. H.
(....)
[99] “As for Mr. H, he confirmed at the hearing that he was aware of the fact
that Company X participated in the trade association, that he personally
attended official meetings of this organization and that he was aware that
there were unofficial meetings, which were attended by Mr. B and Mr. P.
However, when asked whether he personally attended any of the unofficial

meetings, Mr. H replied ‘No. I dp not remember.’ He also testified that Mr. B
and Mr. P did report to him with respect to the unofficial part of the trade
association meetings ‘from time to time’ only but denied that he would always
read Mr. B’s notes after such meetings. Mr. H also denied full awareness of the
anti-competitive practices that were discussed during these. In this context, he
testified that he very seldom watches television, that he does not ‘study’ the
newspapers and that he had never heard about the EU Commission’s work
about anti-competitive practices, nor about US antitrust legislation at the
time. In other words, in spite of his responsibilities as a high-ranking executive
of a French company, Mr. H seems not to have heard about anti-competition
rules.
[100] “Nevertheless, Mr. H admitted during his testimony that he knew that
his underlings attended the unofficial trade association meetings and that such
meetings were not 100% legal. Thus, maybe not very convincingly, Mr. H
denies having personally participated in illegal meetings. However, he does
not really dispute having been aware of his underlings attending such meetings
and the record overwhelmingly confirms such awareness as well as his subor¬
dinates’ knowledge of such awareness. Whether Mr, H personally attended the
illegal meetings, his reasons for not attending if that should have been the case,
whether he did instruct his subordinates to attend or simply let them do so are
questions which may be left open. That being said, generally speaking, the
Arbitral Tribunal is not convinced by Mr. H’s statements, in particular his
statement that he was unaware of competition law issues, and EU competition
law issues in particular.
[101] “For the purposes of this arbitration, the Arbitral Tribunal finds that the
evidence on record shows that
(1) Company X was engaged in anti-competitive practices - such as price

fixing and market sharing - at the time of its acquisition by Claimant
within the named organizations;
(2) Mr. H, Mr. B and Mr. P did know about such practices; and
(3) such practices amounted to competition restraints that Mr. H, Mr. B and
Mr. P knew or, at least, should have known to be in violation of EU
competition law, and that the EU authorities are likely to find illegal.”
ii Mr. Q was not aware of the anti-competitive practices at Company X at

the time of the acquisition
[102] “As mentioned above, Claimant’s argument regarding Mr. Q’s alleged
knowledge of the anti-competitive practices is based upon two allegations: (a)

—— .....
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:
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Mr. Q, as a member of the management of Company X, was actively involved in
the management of the company and, in particular, took an active part in the
pricing strategies of the company, so that he must have been aware of the anti¬
competitive practices; and (b) there is clear evidence that Mr. Q participated in a
meeting during which severe anti-competitive practices were discussed.
[103] “For the reasons set forth below, the Arbitral Tribunal finds that Mr. Q
was not aware of the anti-competitive practices at Company X at the time the
Share Purchase Agreement was entered into.
[104] “First, Claimant’s allegation that, given his position as Chairman of the
Board of Directors, Mr. Q was actively involved in the day-to-day management
of Company X and, in particular, in the pricing strategies of the company, is in
contradiction with Mr. Q’s own testimony. Indeed, Mr. Q testified that he was
not involved in the day-to-day management. In fact, Mr. Q was an executive at a
high level within the Respondent Group, with strategic responsibilities, over¬
seeing many companies at the same time, which had local managers to run the
local business he was tasked to supervise. The mere fact that Mr, Q was the
Chairman of the Board of Company X, one of First Respondent’s subsidiaries,
and that in such capacity, he discussed general pricing strategies of the company
during board meetings does not show that he was aware of the anti-competitive
practices. In particular, the documentary evidence upon which Claimant relies
to argue that Mr. Q took an active part in the pricing strategies of the company
shows that he discussed pricing strategies at a very general and strategic level, but
does do not show that he was aware of the anti-competitive practices.
Conducting illicit anti-competitive practices would be a very serious blemish
as a top-level executive in a large multinational group: such conduct may under
no circumstances be assumed and must be shown by whomever alleges that.
[105] “Second, Mr. Q testified at the hearing that he had no knowledge what¬
soever of any anti-competitive practices at Company X and that he had not
heard of the trade association at the rime. Thus, although he may have a personal
interest in denying the serious charges made against his personal integrity as a
high-ranking executive, there is no reason to doubt his credibility in this respect.
[106] “Third, Mr. H and Mr. B, who knew about the anti-competitive prac¬
tices, both testified that they did not tell Mr. Q about the trade association
meetings. This was also confirmed by Mr. Q at the hearing.
[107] “Fourth, regarding Mr. Q’s alleged participation in a meeting during
r
\;
which anti-competitive practices were allegedly discussed, there is no sufficient¬
ly convincing evidence on record to establish that he actually participated in a
meeting at which anti-competitive practices were effectively discussed. The
■
mere fact that the hand-written notes mention Mr. Q’s name on p. 2 is, in the
ÍÍ Arbitral Tribunal’s view, not sufficient evidence that he did participate in a
meeting at which anti-competitive practices were discussed. Furthermore, it
II
i
;
is not clear whether the eight pages of these notes, or only some of them, rep¬
resent notes of one single meeting or of different meetings or discussions. In this
respect, it is interesting to note that the pagination at the top of each page seems
to have been added by a person other than the writer, since the handwriting of
the pagination does not seem to be the same as the handwriting of the rest of the
text. Mr. Q participated in meetings that included certain competitors of
Company X within the context of Project S, but there is no convincing evidence
that he was in attendance at any trade association meeting or other meeting
during which anti-competitive practices were discussed. It could well be that
the meeting at issue was a Project S meeting. But based upon the evidence on
record, the Arbitral Tribunal is not in a position to determine with certainty
whether that meeting was a Project S meeting or a meeting the purpose of which
was to extend the illegal co-operation between the Respondent Group and their
competitors to other lines of products previously not covered, as alleged by
Claimant, and whether Mr. Q participated in such meeting. Therefore, the
Arbitral Tribunal finds that there is no sufficient evidence on record to establish
that Mr. Q participated in a meeting, during which anti-competitive practices
were discussed.
[108] “Fifth, it is noteworthy that in a fax Mr. Q asked Mr. P his advice and
comments regarding the representations and warranties to be made in the
Agreement. If, at the time, Mr. Q had been aware of any wrongdoing at
Company X, especially of any anti-competitive practices, he would certainly
not have asked this question to Mr. P, at least not in such a manner. It should also
be mentioned that in his answer Mr. P did not mention any anti-competitive
practices to Mr. Q.
[109] “For the above reasons, the Arbitral Tribunal finds that Mr. Q was not
aware of the anti-competitive practices at the time the Share Purchase
Agreement was entered into.”
2. Disclosure of Anti-Competitive Practices
[110] “In Claimant’s submission, no information regarding the anti-compet-

itive practices was provided during the negotiation of the Share Purchase
Agreement, even though First Respondent was asked several questions during
the due diligence, which should have elicited such information. Furthermore,
under Art. 7.6.3(vii) of the Share Purchase Agreement, First Respondent made
representations to the effect that Company X was not engaged in any such
practices.

—jr.vi Tszzzrzrzrrz::
[111] “Claimant has also noted that Respondents have suggested that the anti¬
competitive practices may somehow have been disclosed to Claimant during the
due diligence. Claimant argues that Respondents have presented no evidence
whatsoever supporting this allegation and have simply argued that evidence
possibly exists and that it could perhaps be provided through examination of
Mr. Z. Claimant submits that since Respondents have failed to adduce such
evidence before the Arbitral Tribunal, the Arbitral Tribunal should dismiss
Respondents’ allegations in this respect and rather consider the testimonies of
the manager who was responsible for the due diligence process on behalf
of Claimant and of Mr. P who was involved in the process on behalf of
Company X, both of whom confirm that the anti-competitive practices were
not disclosed during the due diligence.”
b. Respondents' position
...
[112] "Regarding the issue whether anti-competitive practices were disclosed
to Claimant during the negotiation or upon signature of the Share Purchase
Agreement, Respondents simply submit that it would be right to infer that,
had Mr. Z testified, he would have indicated that he learned about the trade
association and/or some or all anti-competitive practices prior to or during the
due diligence process.”
[113] “It is common ground that Mr. H received a due-diligence ques tionnaire
(the so-called ‘Enquiry List’), requesting, inter alia, copies of ‘agreements which
limit the Companies’ business, for instance on restriction of sales to certain
markets, customers, volumes etc.’ and ‘information on whether any of the
Companies has violated (or has been alleged to violate) any laws, regulations
or permits’. As a result of the hearing, it has become clear that not only Mr. H,
but also Mr. P read this Enquiry List at the beginning of the due diligence.
[114] “At this juncture, it is not necessary to determine who (i.e., Mr. H, Mr. P
or both of them) prepared the documents and information provided in response
to the Enquiry List, which were placed in the data room at the disposal of the
potential buyers, i.e., Claimant or Claimant’s Swedish parent company.
Whoever prepared them, it is clear that these binders did not contain any infor¬
mation regarding the anti-competitive practices at Company X.
[115] "For example, the executive summary of subdivision 5.1.6 of these bin¬
ders - regarding ‘Agreements which limit the companies’ business, for instance
on restriction of sales to certain markets, customers, volumes etc.’ - lists only
one document, namely a share purchase agreement entered into between
Claimant’s Swedish parent company and First Respondent some years earlier.

There is no mention of any agreement restricting competition to which

Company X was a party, or of any anti-competitive practices.
[116] “The executive summary of subdivision 9.3 of these binders - regarding
‘information on whether any of the Companies has violated (or has been alleged
to violate) any laws, regulations or permits’ - simply refers to subdivision 8.20 of
these binders, which in turn does not mention any anti-competitive practices.
A ‘list of the documents provided’ during the due diligence was established by
one of Claimant’s counsel for the due diligence. It is not clear whether all
documents reviewed by Claimant are listed or not. In any event, such list
does not mention any agreement restricting competition to which Company
X should have been a party.
[117] “The Share Purchase Agreement does not mention any anti-competitive
practices either. In this respect, Art. 7.6.3 of the Share Purchase Agreement
encapsulates a representation and warranty that Company X was not, on closing
date, ‘a party to any contract, agreement or similar arrangement in violation of
any antitrust or similar laws [of] any jurisdiction in which any of the Acquired
Companies has conduced business’, except as specified in exhibit 7.6.3. There is
no disclosure of the anti-competitive practices under exhibit 7.6.3 (which is not
appended to the Share Purchase Agreement).
[118] “For the above reasons, the Arbitral Tribunal finds that, whatever the
reasons, the anti-competitive practices at Company X were not disclosed to
Claimant during the negotiation or upon signature of the Agreement.
[119] “As for Respondents’ argument that the Arbitral Tribunal would be
right to infer that, had Mr. Z testified, he would have indicated that he learned
about the trade association and/or some or all anti-competitive practices prior to
or during the due diligence process, the Arbitral Tribunal considers that, in light
of the clear documentary evidence showing that no disclosure was made, such an
inference cannot be made.”
VIII. DECEIT IN THE INDUCEMENT TO CONTRACT
[120] “As already mentioned, Claimant submits that First Respondent deceit¬
fully induced Claimant to enter into the Agreement and that, accordingly,
Respondents must indemnify Claimant for any damages incurred as a conse¬
quence of such deceit, in accordance with Art. 1116 of the FCC. More specif¬
ically, Claimant argues that:
(a) First Respondent made incorrect representations during the negotiation

and - or, at least - withheld information from Claimant regarding the
anti-competitive practices;

- -- . JTïSiÿâ
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’~zr . ~ •- • -ÿ

(b) First Respondent made such representations or withheld such information
in order to cause Claimant to enter the Agreement, i.e., with the intent
i- to
deceive Claimant.
[121] “Indeed, Claimant submits that Mr. H intentionally withheld informa-

tion about the anti-competitive practices . .. and that Mr. H’s deceit is attrib¬
utable to First Respondent. ... It should also be noted that Claimant does not
seem to allege in its submissions that Mr. P committed a deceit.
[122] “In support of its allegation that Mr. H deceitfully induced Claimant to
enter into the Agreement, Claimant argues as follows: Mr. H knew about the
anti-competitive practices; he knew that such practices were not legal; he
prepared (or, at least, read) the answer to the questions in the Enquiry. List
regarding market limitations and illegal activities; he knew that no information
about the anti-competitive practices had been given in response to those ques¬
tions, or during the due diligence process, although he had been given the task of
"...
ensuring that Claimant received all the information asked for; he prepared (or, in
any event, had the final responsibility for preparing) the exhibits to the warran¬
ties and representations made in the Agreement and, therefore, knew that the
representations and information given were not correct, but nevertheless, decid¬
ed to keep silent about the anti-competitive practices; he had a very strong
incentive not to disclose the anti-competitive practices, given that First
Respondent had been trying to sell Company X since some years, and that
there were no other potential buyers left except Claimant; he knew that the
disclosure of the anti-competitive practices would have jeopardized the
whole transaction.
[123] “In sum, Claimant submits that Mr. H was aware of both the informa¬
tion he concealed and its importance to the other party and that this is a case of
deceit under French law. Claimant also contends that deceitful intent may be
presumed under French law in certain circumstances and that, in the present
case, a French court would presume that Mr. H had the intent to deceive
Claimant.
[124] “Claimant further argues that Mr. H’s deceit is attributable to First
Respondent, under both French law (the law of the contract) and Danish law
(because First Respondent is a Danish Company). In this context, Claimant
submits that Mr. H’s acts should be attributed to First Respondent because
Mr. H was an employee of First Respondent (he received his salary from
First Respondent and only 25% of his salary was reimbursed by Company
X) and because he had responsibilities in connection with the contemplated
transaction. Specifically, in Claimant’s view, the record shows that Mr. H repre¬
sented First Respondent because (a) Mr. H was assigned to make sure that
Claimant received all the information regarding Company X it requested during
Reprinted &om the Yearbook Commercial Arbitration 275

the due diligence, thereby performing a duty of First Respondent in connection

with the transaction - indeed, it was First Respondent that had undertaken to
provide full and correct information to Claimant regarding Company X’s
operations; (b) Mr. H participated very actively in the oral negotiations of the
Agreement, as confirmed by Mr. Q, who considered his presence there to be
indispensable; (c) subsequent to the execution of the Agreement, Mr. H
continued to represent First Respondent by negotiating the Transfer Balance
Sheet of both Company X and M, which included making some decisions that
affected the final purchase price by a substantial sum.
[125] “Claimant has argued that Mr. H’s deceitful acts would be attributable
under French law to First Respondent even if the Arbitral Tribunal were to find
that Mr. FI was not a representative of First Respondent. Indeed, relying on legal
opinions by two experts, Claimant submits that there is both strong evidence
and grounds to conclude that (i) First Respondent, acting through its
representative Mr. Q, did assign certain key duties with respect in particular
to the due diligence and preparation of the exonerating disclosure exhibits to the
Share Purchase Agreement to Mr. H, such assignment falling within the scope of
the provisions of Arts. 1384 and 1385 of the FCC and; (ii) under such provisions,
First Respondent should be held liable for the faults, including the withholding
of information relating to the illegal practices, of Mr. H when carrying out such
key duties.
[126] “First Respondent’s deceitful acts were decisive for Claimant’s decision
to enter into the Agreement, i.e., Claimant would not have entered the
Agreement if it had known of the anti-competitive practices. Claimant further
submits that if the Arbitral Tribunal were to find that Claimant would have
entered into the Agreement even if the anti-competitive practices had been
disclosed, but on different terms, then Claimant’s claim would be based upon
a dol incident, which is admissible under French law.
[127] “Any damages that will be incurred by Claimant as a consequence of the
EU Commission’s investigations will be incurred as a consequence of the fact
that First Respondent deceitfully induced Claimant to enter into the Agreement,
so that First Respondent has an obligation to compensate Claimant for any such
damages.”
2. Respondent's Position
[128] “First, Respondents argue that according to French case law, Claimant’s
action under the theory of deceit cannot be based upon Art. 1116 of the FCC,
but only upon the warranty of hidden defects. A claim under such theory would
be time-barred, as it was not brought within a short period of time from dis¬
covery of the alleged defect as set forth in Art. 1648 of the FCC.

c

[129] “Second, should the Arbitral Tribunal consider that Claimant’s action
can be based upon Art. 1116 of the FCC, Respondents argue that Firsc
Respondent did not deceitfully induce Claimant to enter into the Agreement.
Specifically, Respondents submit that Claimant’s claim based upon an alleged
deceit should be rejected for the following reasons: Claimant has failed to prove
that First Respondent had the intent to deceive Claimant. Indeed, to establish
liability for a deceit, it is not sufficient for Claimant to merely show that
Respondents made misrepresentations or failed to disclose certain information.
Such alleged misrepresentations or concealment of facts must have been made
;í
with the specific intent to deceive, which Claimant failed to prove in the present
case. In this respect, Respondents submit that neither Mr. H, Mr. P nor any
other Company X employees involved in the due diligence process intended to
withhold any information whatsoever from Claimant.
■i
[130] "In support of their allegation, Respondents argue that both Mr. P and
Mr. H testified that they did not conceal anything from Claimant and that they
would have told Claimant about the trade association meetings if they had been
specifically asked about the anti-competitive practices. Respondents further
contend that it was because they did not fully understand the true extent of
the consequences of the trade association meetings, which they perceived as not
T00% legal’, that neither Mr. H nor Mr. P considered it necessary to discuss
these meetings with Claimant without being prompted by Claimant to engage in
a discussion of the nature of such practices. As for Mr. H, Respondents further
argue that he had instructed Mr. P to be truthful about any question asked
during the due diligence, which is in itself exclusive of any intent to deceive.
In sum, Respondents submit that Mr. H and Mr. P may have been negligent in
not telling Claimant about the trade association meetings, but mere negligence
does not amount to concealment with specific intent to deceive.
[131] "In any event, even if the Arbitral Tribunal were to conclude that Mr. H
and/or Mr. P had committed deceitful acts, First Respondent would not be
liable, because First Respondent had no knowledge of the anti-competitive
practices at Company X and neither Swedish law nor French law permits
First Respondent to be held liable for a deceit committed by Mr. H or Mr. P.
In this respect, Respondents argue that both of First Respondent’s representa¬
tives during the negotiation of the Agreement were not aware of the anti¬
competitive practices. As for Mr. H and Mr. P, they did not represent First
Respondent during the negotiation.
[132] "More specifically, Respondents have raised the following arguments
regarding Mr. H:
(a) Respondents argue that during the course of the negotiation and perfor¬
mance of the Agreement, Mr. H acted as a representative of Company X

I
;
!
;
only, and notas a representative of First Respondent, for the following
main reasons. Even though he had as a formal matter entered into a contract
of employment with First Respondent, this contract had the sole purpose of
enabling Mr. H to receive unemployment benefits when his position would
be eliminated by Claimant upon closing of the Agreement. Although Mr. H
once gave a Claimant manager a business card from Second Respondent,
these business cards were only to be used for Mr. H’s duties relating to a
certain business.
(b) Respondents further submit that Mr. H did not work on behalf of First
Respondent in the context of the negotiation of the Agreement, but rather
acted as the managing director of Company X and provided information to
the representatives of First Respondent in order to assist them. Although
Mr. H attended several of the negotiation meetings, he did not actually
negotiate the Agreement, but was only present to bring and explain French
documents to be attached as exhibits to the Agreement. Mr. H also had the
responsibility, along with Mr. P, to gather documents to be made available
in the data room and to decide which documents should be attached as
exhibits to the Agreement. However, since Mr. H was absent for a signif¬
icant period during this time, Mr. P was in effect the person in charge.
(c) Mr. H’s role in the performance of the Agreement was moreover limited to
applying the guidance rules set forth therein, so as to establish the transfer
balance sheet of Company X, a process which First Respondent subse¬
quently reviewed. Finally, Mr. H attended the closing of the Agreement
only to tender his resignation letter. On that basis, Respondents argue that
during the course of the negotiation and performance of the Agreement,
Mr. H acted as a representative of Company X only, and not as a
representative of First Respondent.
(d) Respondents submit that Mr. H’s knowledge of the anti-competitive prac¬
tices cannot be attributed to First Respondent as a deceit on the basis of an
assignment or delegation of duty under French law. First, as a matter of
fact, Respondents contend that Mr. H did not receive any delegation of
duty, delegation of power or assignment of duty in a legal sense from
Mr. Q, given that Mr. H was simply asked to answer the questions
asked by Claimant and to collect documents for the due diligence, which
were simple tasks of execution. Second, as a matter of law, relying on a legal
opinion by an expert, Respondents submit that Claimant’s argument based
upon Art. 1384 of the FCC is without any merit, because such provision
does not apply in case of a deceit in the formation of the agreement.
(e) In any event, even if Claimant had proven that Respondents had fraudu¬
lently concealed information regarding anti-competitive practices with the
intent to deceive, its claim would have to be dismissed because Claimant has

_ ,.V r-~ ■ i 177 i 7+:7ïz*-.2nir£

failed to prove the element of causation between the alleged deceitful acts
and Claimant’s decision to enter into che Agreement. In this respect,
Respondents submit that if Claimant’s representatives in the negotiation
of the Agreement considered, as they maintain, that the existence of the
anti-competitive practices would have been a deal-breaker, they never
communicated this belief to First Respondent or Company X, nor did
they ever ask First Respondent or Company X about the existence of
such practices. If the existence of such practices had really been so material,
one could reasonably wonder why such questions and concerns were never
raised. Respondents further submit that the lack of materiality of this infor¬
■f. mation is even more glaring when one considers that Claimant is a sophis¬
ticated player in the industry and had its own experience in cartel cases.
t
[133] “In any event, Claimant’s failure to notify First Respondent of any
:>ÿ
breaches of warranties and representations in accordance with Art. 8.3.1 and
Art. 8.4.1 of the Agreement bars Claimant from seeking indemnification.
Respondents contend that these contractual provisions would remain applica¬
ble, even if the Arbitral Tribunal were to find that there was a deceit in the
present case. In any event, Respondents contend that Claimant tacitly waived
its right to any indemnification.”
[134] “As a preliminary matter, the Arbitral Tribunal must determine whether
Respondents’ argument that Claimant’s action under the theory of deceit cannot
be based upon Art. 1116 of the FCC, but only upon the warranty of hidden
defect, is founded.
[135] “Based upon the French case law produced by Claimant,7 the Arbitral
Tribunal is of the opinion that a hidden defect does not exclude an action based
upon a deceit under Art. 1116 of the FCC. As for the case law upon which
Respondents rely, it only concerns the relation between the action for hidden
defects (under Art. 1641 of the FCC) and the action for mistake (under Art. 1110
of the FCC).8 Hence, Claimant can rely upon Art. 1116 of the FCC to argue that
First Respondent deceitfully induced Claimant to enter into the Agreement.
7. “Cour de Cassation, First Civil Chamber, 6 November 2002. In this decision, the French Cour de
Cassation ruled that a cause of action based upon hidden defects does not exclude a cause of action
for annulment based on dol. .. .”
8. “The French Cour de Cassation ruled that given that the warranty of hidden defects constituted
the only possible basis of the action that was brought, the Cour d' Appel did not need to examine
whether a claim based on the error was possible .. . .”

Accordingly, the Arbitral Tribunal will examine whether the conditions set
forth in Art. 1116 of the FCC are fulfilled.
[136] “Art. 1116 of the FCC provides as follows:
‘Deceit is a cause of nullity of the contract when the malicious acts {man-
oeuvres) performed by one of the parties are such, that it is obvious that
without such malicious acts {manoeuvres), the other party would not have
contracted. If is not presumed, it has to be proven.’
[137] “It is undisputed between the parties that two cumulative conditions
must be satisfied in order for Art. 1116 of the FCC to apply: A party to the
agreement must have committed malicious acts or manoeuvres, with the intent
to cause the deceived party to enter into the agreement. Both parties also agree
that silence voluntarily kept by one party may constitute a manoeuvre under
Art. 1116 of the FCC if that party had knowledge of the relevant facts. The
malicious acts or manoeuvres must have been decisive for the other party’s
decision to enter into the agreement.
[138] “The parties disagree, however, as to whether the deceitful party’s intent
to cause the deceived party to enter into the Agreement may be presumed under
certain circumstances.
[139] “Claimant submits that such intent must be presumed if it appears
unquestionably probable {infiniment probable) that an honest individual
would have understood that he misled the deceived party by his acts or his
passivity, if it is established that the deceitful party lied, if the concealment of
information is of intentional character, or simply from the dual finding that the
deceitful party has concealed information of which he was aware and that he was
also aware of the importance of such information to the other party.
[140] “Respondents submit that the intentional element of deceit cannot be
presumed under French law and, accordingly, must be proven by Claimant. In
this respect, Respondents argue that the legal commentators cited by Claimant
in support of their argument that the intentional element of deceit may be pre¬
sumed under certain circumstances, must be taken with caution because: (a) they
are clearly contra legem; and (b) there is no case law supporting a presumption of
that kind in circumstances similar to the ones of the present case.
[141] “Having reviewed the case law and the legal authorities produced by the
parties, the Arbitral Tribunal is of the opinion that the question is not really
whether the intentional element of deceit may be presumed under certain cir¬
cumstances or not, but how such intentional element, which is a prerequisite for
a deceit, may be established in case of a deceit by way of silence. Indeed, in case
of a deceit by way of silence, it must be established that the silence by one party
to the Agreement was not caused by forgetfulness or negligence, but was an
expression of the intent to deceive the other party.

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K-
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t CASE NO. 12502, 2005 ARBITRAL AWARDS
St [142] “However, given that the intentional element of a deceit, like any other
I intentional elements, is difficult to establish in case of silence, French commen-
tators seem to recognize that the judge may derive such intent from the dual
finding that the party which remained silent was aware of the information being
concealed as well as of its importance for the other party. Indeed, in such a case,
the only explanation for such silence is that the party, which remained silent, had
! the intent to mislead the other party. In the Arbitral Tribunal’s view, this
problematic is summarized in convincing terms in the following extracts
from Les Obligations by Messrs Terré, Simler and Lequette:
‘. . . . For the contract to be annulled on the basis of deceit, the previously

identified material element must have been produced by one of the parties
for the purpose of misleading the other. This requirement will be relatively
easy to establish in cases of malicious acts or lies, since it would be difficult
to imagine how such behaviours could be explained otherwise than by an
intention to mislead the other party.’
Tn case of deceit by way of silence, the intentional element is more difficult
to establish. Silence by one party may, indeed, have been caused by for¬
getfulness or negligence rather than by an intention to deceive the other
party. However, the judge will usually derive the intention to deceive from
the dual finding that the party keeping silent was aware of the information
being concealed as well as of its importance for the other party. A person
who “consciously” remains silent commits deceit.’ (Translations provided
by Claimant’s counsel.)
[143] “The Arbitral Tribunal will determine whether First Respondent deceit¬
fully induced Claimant to enter into the Agreement in accordance with the
foregoing principles.
[144] “As previously stated, the Arbitral Tribunal has found that Mr. Q and
the other negotiator for First Respondent were not aware of the anti-compet¬
itive practices at the time of the transfer of Company X’s shares to Claimant, so
that they cannot have committed a deceit. It is not argued and, in fact, it does not
appear, based upon the record, that Mr. P committed a deceit.
[145] “The only remaining issue is, therefore, whether Mr. H committed a
deceit pursuant to Art. 1116 of the FCC and, if so, whether his deceitful acts are
attributable to First Respondent. The Arbitral Tribunal will examine these two
issues one by one below.”
a. Did Mr. H commit a deceit pursuant to Art. 1116 of the FCC?
[146] “As previously mentioned, the Arbitral Tribunal has found that Mr. H
was aware of the anti-competitive practices at the time of the acquisition of
; Reprinted from the Yearbook Commercial Arbitration 281

Company X by Claimant and that such practices were not disclosed to Claimant
during the due diligence. In order for Mr. H’s silence to qualify as a deceit under
Art. 1116 of the FCC, it must be established that: (i) he voluntarily withheld
information about the anti-competitive practices, with the intent to deceive
Claimant; and (ii) such deceit was decisive for Claimant’s decision to enter
into the Agreement.”
i. Voluntarily withholding information

[147] “Based on the record, the Arbitral Tribunal finds that the first condition
is fulfilled for the following reasons: As previously mentioned, Mr. H knew
about the anti-competitive practices and that such practices were not 100%
legal; As previously mentioned, the anti-competitive practices were not dis¬
closed to Claimant either by Mr. H or by anyone else.
[148] “It is undisputed that Claimant submitted an Enquiry List to First
Respondent at the outset of the due diligence, inquiring in particular about
agreements ‘which limit the companies’ business, for instance on restriction
of sales to certain markets, customers, volumes, etc.’ (Sect. 5.1.6) and about
‘whether any of the Companies has violated (or has been alleged to violate)
any laws, regulations or permits’ (Sect. 9.3), and that Mr. H read this Enquiry
List. Based on the record, it is not clear whether Mr. H or Mr. P prepared the
answers to these two questions, which do not mention the anti-competitive
practices. Be that as it may, the Arbitral Tribunal is of the opinion that Mr.
H and Mr. P reviewed the answers to the questions asked in the Enquiry List
before submitting them to Claimant, as evidenced by Mr. P’s testimony. During
his testimony, Mr. H denied having reviewed the answers with Mr. P, but the
Arbitral Tribunal finds that Mr. P’s testimony is more credible than Mr. H’s
testimony in this respect. In other words, the record shows that Mr. H read the
Enquiry List, that he (at least) reviewed the answers to the Enquiry List and,
thus, knew that no information had been provided about Company X’s partic¬
ipation in anti-competitive practices, although the Enquiry List should have
elicited answers about such practices.
[149] "The record also shows that after the due diligence, when the parties
were drafting and negotiating the Share Purchase Agreement, Mr. H was asked
by Mr. Q to select the Exhibits to the Agreement regarding the exceptions to the
representations and warranties made in the Agreement. Indeed, under Art. 8.2.1
of the Agreement, exceptions to the warranties made in the Agreement had to be
specified in writing in a document appended to the Agreement. Mr. Q testified
that Mr. H was responsible for the selection of these exhibits and that no docu¬
ments were selected during Mr. H’s sickness leave. During her testimony, the
other First Respondent negotiator, its in-house counsel, also confirmed that

i
Í
iI; CASE NO. 12502, 2005 ARBITRAL AWARDS
Mr. H selected these exhibits and that he explained them. At the hearing, Mr. H
admitted having read the Agreement and having collected the exhibits, but
denied having selected the documents. However, he could not give a clear
and coherent explanation as to how the documents were selected.
ÎV Nevertheless, the Arbitral Tribunal finds that the testimonies of Mr. Q and
the in-house counsel, which are credible, show that Mr. H was responsible
for the selection of the exhibits regarding the exceptions to the representations
and warranties made in the Agreement and that he decided which documents to
append to the Agreement with respect to certain guarantees (namely, to certain
Articles, especially Art. 7.6.3).
[150] “In other words, Mr. H knew that Claimant had asked specific questions
about possible illegal practices and market restrictions in the Enquiry List, that
First Respondent was going to represent that Company X had not violated any
antitrust laws or similar restrictions and that the anti-competitive practices had
T
not been disclosed to Claimant either in the answers to the Enquiry List or in the
Exhibits to the Agreement, but nevertheless remained silent about the anti¬
competitive practices. In the Arbitral Tribunal’s view, the only possible expla¬
nation why Mr. H remained silent is that he voluntarily withheld information
about the anti-competitive practices.
[151] “Respondents allege that Mr. H did not have the intent to withhold
information, but simply did not appreciate the true extent of consequences of
the practices he perceived as not 100% legal. This is not convincing. First, one
may wonder whether Mr. H could play down the illegality of such practices.
Not reading newspapers or watching TV is one thing and the privilege of any
private person. However, there are other means to get information and it is
hardly credible that a high-ranking executive (managing director) in a French
company may not know a minimum about EU Law, including EU anti¬
competition law, through seminars (including in-house) or discussions with
colleagues while attending business meetings. Second, Mr. H was aware that
these practices were not 100% legal and did not disclose them to Claimant,
although several clear questions of the Enquiry List should have elicited answers
and although several representations made in the Agreement guaranteed that
such practices did not exist. The only explanation for his silence is that he
withheld this information.
Furthermore, given that Claimant had asked several questions in the Enquiry
List that should have elicited answers regarding the anti-competitive practices
and given that the Agreement contained representations and warranties that no
such practices existed, Mr. H undoubtedly understood that the existence of such
practices were of importance to Claimant.
[152] “Mr. H testified that he instructed Mr. P, at the outset of the due dili¬
gence, to answer all questions asked by Claimant truthfully and to provide all
Reprinted from the Yearbook Commerci 283

information requested and such statement was confirmed by Mr. P and accepted
by Claimant. This does not show, however, that Mr. H did not have the intent to
withhold information about the anti-competitive practices. When reviewing the
answers to the Enquiry List and when selecting the exhibits to the Agreement,
he knew that such practices had not been disclosed, but nevertheless chose not to
disclose them. As for Mr. H’s statement that he specifically instructed Mr. P to
tell Claimant about the anti-competitive practices, Mr. P denied having received
such instructions. In the Arbitral Tribunal’s view, Mr. H’s statement is not
credible. If Mr. H had really specifically instructed Mr. P to tell Claimant
about the anti-competitive practices, one does not see why he did not disclose
such practices himself when he was asked to review the answers to the Enquiry
List and when he was asked to select the exhibits to the Agreement. Mere neg¬
ligence or forgetfulness may not be found, given the record.
[153] “Based on the foregoing, and in accordance with, the requirement under
French law described above, the Arbitral Tribunal concludes that Mr. H inten¬
tionally withheld information about the anti-competitive practices with the
intent to deceive Claimant. It is not quite without hesitation though that this
conclusion is reached. A dol is a malicious act, a manoeuvre intended to deceive
the other party, that is meant to vitiate its consent to enter into an agreement. It is
not certain that Mr. H did actually realize how serious the retention of infor¬
mation could be both in terms of illegality and of potential adverse pecuniary
consequences. Furthermore, his intent may have been more to avoid personal
embarrassment than to lead Claimant to enter into the Agreement.”
ii Deceit was decisive

[154] “As for the second requirement for a deceit, namely that the malicious
acts were decisive for Claimant’s decision to enter into the Agreement, the
Arbitral Tribunal considers that it is also fulfilled. Indeed, both the manager
who signed the Agreement on behalf of Claimant and the manager of the
Claimant Group who participated in the negotiation of the Agreement testified
that Claimant would not have signed the Agreement if it had known about the
anti-competitive practices at the time. These testimonies are not to be doubted,
especially as they convincingly emphasized that the Claimant Group was not
without hesitation as to the acquisition in the first place.
[155] “However, again, it is worth emphasizing that this conclusion is far from
inescapable. The Arbitral Tribunal does accept those testimonies at face value
because the good faith of the witnesses is not to be doubted. Nevertheless, when
Mr. Z discovered that Company X was engaged in illegal anti-competitive prac¬
tices, he did not cause Claimant to claim the benefit of the representations and
warranties. Neither did Claimant (or Mr. Z) rely immediately on a dol to nullify

—
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the Agreement or to request another relief. Such reaction, more exactly the lack
thereof, casts some doubts about Claimant’s reaction if the anti-competitive
practices had been dutifully disclosed during the due diligence process.
Would the Parties have agreed ‘to blow the whistle in Brussels’? Would they
have renegotiated the price? Those questions will remain unanswered, but the
fact is that it is not the knowledge of the anti-competitive practices which
prompted Claimant to seek redress: it is their consequences, when they occurred
a few years later, namely the imminence of possible sanctions imposed by the
Commission. Be that as it may, the Arbitral Tribunal does find that Mr. H’s acts
qualify as a deceit under Art. 1116 of the FCC.
[156] “Another question is whether Mr. H’s deceitful acts are attributable to
First Respondent. This issue will be examined below.”
b. Is Mr. H's knowledge and are his deceitful acts attributable

to First Respondent?
[157] “As already mentioned in an Arbitral Tribunal’s letter, the Arbitral

Tribunal has found that Mr. H did not represent First Respondent in the nego¬
tiation and conclusion of the Share Purchase Agreement. The Arbitral Tribunal
reached this conclusion for the following reasons:
(i) It is undisputed that Mr. H was the managing director of Company X, but
that he had a formal employment contract with First Respondent.
However, in the Arbitral Tribunal’s view, the fact that Mr. H had a formal
employment contract with First Respondent is not relevant to the issue of
whether or not he represented First Respondent in the negotiation and
conclusion of the Agreement, since this employment contract had the sole
purpose of enabling Mr. H to receive unemployment benefits once his
position was eliminated upon the closing of the Agreement. During his
testimony, Mr. H also confirmed that he was not performing any work for
First Respondent.
(ii) Truly, the record shows that Mr. H was asked by Mr. Q to make sure that
Claimant received all the information it requested regarding Company X
during the due diligence and that Mr. H was involved in the preparation of
the exhibits to the Share Purchase Agreement. But the record also shows
that he was asked to carry out these material tasks because, as the man-
aging director of the company which was being sold, he had personal
knowledge of the company’s files and because many of the relevant docu¬
ments for the due diligence regarding Company X were drafted in French.
The fact that he was entrusted with these material tasks does not mean that
he represented First Respondent.

(in) The fact that Mr. H participated in several meetings during which the
Agreement was negotiated does not show that he represented First
Respondent either. Quite to the contrary, the record shows that he did
not negotiate the Agreement on behalf of First Respondent during these
meetings. This was not only confirmed by Mr. H himself, but also by Mr.
Q. In other words, Mr. H was entrusted with some material acts in con¬
nection with the due diligence and the negotiation of the Agreement, but
was not authorized to perform legal acts (actes juridiques) on behalf of
First Respondent. Given that, under French law, a mandate or represen¬
tation only exists if the agent is authorized to perform legal acts on behalf
of the principal, and that Mr. H was not authorized to perform legal acts,
he did not represent First Respondent during the negotiation of the
Agreement within the meaning of French law. It is trite - and undisputed
in this arbitration - that, under French law, a contractual representation
will usually arise from a ‘mandate’ the purpose of which is limited to
carrying out legal transactions (actes juridiques). Mr. H’s role was not
to carry out legal transactions. His task was confined to purely ministerial
acts, namely collating documents and supplying the First Respondent
representatives and legal advisers with the material necessary to take
exceptions to representations and warranties.
(iv) Furthermore, Mr. H was not introduced to Claimant as a representative of
First Respondent during the negotiation of the Agreement, but as
Company X’s managing director. The fact that, during one of the nego¬
tiation meetings, Mr. H gave a Second Respondent business card, indi¬
cating ‘Second Respondent Representative’ under his name, is not
decisive. Indeed, it seems that these business cards were given to Mr. H
in connection with another assignment he carried out for Second Respon¬
dent and that he gave such a business card to Claimant’s representatives
for the purpose of providing them with his mobile telephone number,
which was not mentioned on his Company X’s business cards.
(v) The fact that Mr. H participated in the closing of the Agreement is not
material either, since his participation in the closing meeting was due to
the fact that he had to give his resignation as managing director of
Company X. Furthermore, the closing meeting did not involve any nego¬
tiation.
(vi) The Arbitral Tribunal is not convinced either by Claimant’s allegation
that Mr. H represented First Respondent by negotiating the Transfer
Balance Sheet of Company X, which allegedly included making some
important decisions that affected the final purchase price. Even though
Mr. H was involved in the preparation of the Transfer Balance Sheet of
Company X, his role was limited to applying the guidance rules set forth

,j

i in the Agreement, a process which Second Respondent subsequently
reviewed, as evidenced by Mr. Q’s testimony. In other words, he did
not negotiate the final purchase price, as alleged by Claimant, but only
carried out some calculations in this context.
[158] "Having found that Mr. H did not represent First Respondent during
the negotiation and conclusion of the Agreement, the Arbitral Tribunal will now
examine whether Mr. H’s knowledge of the anti-competitive practices and Mr.
H’s deceitful acts can be attributed to First Respondent as a deceit on the basis of
an assignment or delegation of duty.
[159] “As already mentioned, Claimant submits that Mr. H’s deceitful acts are
attributable to First Respondent under French law on the basis of an assignment
or delegation of duty. Indeed, relying on legal opinions by a law firm and by an
expert, Claimant submits that (a) First Respondent, acting through its
representative Mr. Q, did assign certain key duties with respect in particular
to the due diligence and preparation of the exonerating disclosure exhibits to the
Share Purchase Agreement to Mr. H, such assignment falling within the scope of
the provisions of Art. 1384(5) of the FCC; and (b) under such provisions, First
Respondent should be held hable for the faults, including the withholding of
information relating to the illegal practices, of Mr. H when carrying out such
key duties.
[160] "Claimant further contends that Respondents’ argument that Art.
1384(5) of the FCC does not apply to the specific case of a deceit, a fortiori a
deceit in the formation of the contract, is without any merit and is not supported
by any case law or other legal authorities. Claimant submits that it is not because
there is a special provision in the French Civil Code on dol (Art. 1116) that the
act amounting to a dol cannot fall within the scope of Art. 1384(5) of the FCC. In
this respect, Claimant submits that case law of the highest authority exists pre¬
cisely on that point and has ruled in the opposite direction to that contended by
Respondents. Indeed, Claimant argues that in a decision dated 7 February 1983,
the Cour de Cassation ruled that a bank was liable under Art. 1384(5) of the FCC
for the dol committed by one of its préposés during the formation of the contract.
[161] "Claimant’s expert gave the following opinion in this respect:
‘Even in situations giving rise to pre-contractual or tortious liability, it had

already been held that a dol committed by the préposé is to be attributed to
the commettant. In this respect, I must emphasize my total disagreement
with what is set forth in First Respondent’s Additional Submissions, name¬
ly that Art. 1384(5) of the French Civil Code is concerned with tort liability
under certain conditions but not in the specific case of deceit - a fortiori
deceit in the formation of an agreement - which is a distinct matter. Indeed,
Reprinted from the Yearbook Commerriáf Arbitration 287

Art. 1384(5) of the French Civil Code provides that the commettants are
liable for the damage caused by their préposés. Such provision covers any
wrongful act by the prépose, including a dol, as long as such an act is com¬
mitted within the framework of his duties (dans le cadre de ses fonctions).’
[162] “Respondents submit that Mr. H’s knowledge of the anti-competitive

practices cannot be attributed to First Respondent as a deceit on the basis of an
assignment or delegation of duty under French law for the following reasons.
First, as a matter of fact, Respondents contend that Mr. H did not receive any
delegation of duty, delegation of power or assignment of duty in a legal sense
from Mr. Q, given that Mr. H was simply asked to answer the questions asked
by Claimant and to collect related documents for the due diligence, which were
simple tasks of execution. Second, as a matter of law, and relying on a legal
opinion by an expert, Respondents submit that Claimant’s argument based
upon Art. 1384 of the FCC is without any merit, because such provision
does not apply in case of a deceit in the formation of the agreement. In this
respect, Respondents submit that the decision of the Amiens Court of Appeal,
upon which Claimant relied in a Post-Hearing Memorandum, is of no relevance,
because it related to a deceit in the performance of the contract, and not a deceit
in the formation of the contract.
[163] “The Respondents’ expert has summarized his opinion as follows:
‘Under French law, deceit at the time of the formation of a contract (Art.
1116 Civil Code) is not a simple wrongful act; its defining feature is the
intention to deceive the other party (manoeuvres). Essentially, the intention
is personal. One person cannot assume the intention of another. As far as
what would be characterized as deceit by non-disclosure is concerned, a
person cannot personally have had the intention to deceive the other party
if such person was not actually aware of the undisclosed information. In
substantive law, this is expressed through the exclusion of a third party’s
deceit.’
and:
‘Under French law, it is not possible to impute automatically to a contract¬

ing party the deceit by non-disclosure committed by a person whom the
latter party has instructed to carry out certain tasks for it in connection with
the conclusion of the contract. If the information not disclosed by this
person was not personally and actually known by the contracting party,
the latter has not committed a deceit. In addition, if the non-disclosure of
the information by the person was not committed with an intention to

:
i. -7v 7 r. r-T-vsv.- - ---r.-.- j.iLli'.XX"
i
deceive, no deceit has been committed, either by the contracting party or by
its substitute.’ (Translations by Respondents’ counsel.)
[164] “The expert has added in a later legal opinion that the only case in which
the question might appear to remain open is the case of a deceit committed by a
representative/agent. However, in his view, this theory of representation does
not apply in this case since Mr. H and Mr. P were not instructed to carry out
legal acts in the name and on behalf of First Respondent. In any event, even if
they were representatives of First Respondent, current case law (Decision of the
Cour de Cassation of 29 April 1998) does not merely apply the representation
>
:r mechanism automatically to make the representative’s deceit revert to the
principal. It requires, in addition, the principal’s awareness of the fraudulent
manoeuvres. Regarding this case law, Claimant submits that the fact that the
*ÿ principal knew of the deceit committed by the agent is no more than a passing
comment by the court, a mere obiter dictum, and should therefore not be con¬
strued as part of the decision’s ratio decidendi. Claimant further contends that
this case law lacks pertinence, since the Arbitral Tribunal has already found, in
the course of its deliberations, that neither Mr. H nor Mr. P did represent First
Respondent during the negotiation of the Agreement.
[165] "Having reviewed the parties’ arguments and the legal opinions submitted
by the parties on this issue, the Arbitral Tribunal finds that First Respondent -
acting through its representative Mr. Q - did assign certain key duties to Mr. H
with respect to the due diligence and the preparation of the exonerating disclo¬
sure exhibits to the Share Purchase Agreement. In other words, contrary to
Respondents’ allegation, there was an assignment or delegation of duty under
French law. However, First Respondent limited such assignment to ministerial
acts (collecting of documents) and did not authorize Mr. H to perform legal acts
{actes juridiques) on its behalf. Truly, First Respondent also requested Mr. H to
answer questions, but meant thereby to have him clarify factual issues which
might arise in the minds of Claimant’s representatives and lawyers. Mr. H was
not an agent with representation power but merely a préposé.
[166] “The Arbitral Tribunal finds that under French law, Mr. H’s knowledge
of the anti-competitive practices and Mr. H’s deceitful acts cannot be attributed
to First Respondent as a deceit, on the basis of such an assignment or delegation
of duty for the following reasons.
[167] “A dol dans la formation du contrat (Art. 1116 of the FCC), a deceit,
fraudulent and deceptive misrepresentation for instance, must be made with
knowledge of its falsity (or, possibly, with a reckless and extremely negligent
ignorance of such falsity, culpa lata dolo aequiparatur, faute lourde). French law
characterizes the dol as a vice du consentement (lack of consent) on the victim’s
side but also as a tortious act, an offence {délit), on the perpetrator’s side. As a

consequence, the dol will taint the agreement only if it originates from one of the
parties and such party must act intentionally:
‘This solution (i.e, the dol must originate from a party to the agreement)
results from the nature of the offence (dimension délictuelle) of the dol.
Under the limited scope of the psychological aspect, dol will vitiate the
consent of the victim in the same fashion, whether it emanates from the
other party or a third party. However, the annulment for dol is also a
penalty which should punish (frapper) only this one who is personally
liable. Only the dol emanating from a party will thus cause nullity, because
it would not be fair that an innocent party should suffer from a conduct
which could not be imputed to him. Hence, the obvious limits to the appli¬
cation of such rule. It is left aside if the party, without being the direct
perpetrator of the manoeuvre, should be estopped from relying on his
innocence. Either because he aided and abetted in the dol or instigated it.
Or further because the dol emanates from his agent (représentant), a care¬
taker (gérant d’affaires) of whom he has ratified the acts or even a person
having taken a commitment for him (porte-fort). . . .’ Terré, Simler,
Lequette, Droit civil , Les obligations, Sect. 235, p. 236 ( .. . free translation
by the Arbitral Tribunal).
[168] “The emphasis is thus that the dol is an intentionally wrongful act
(faute), an act meant to harm the other party and vitiate his consent (see the
expert’s first opinion). Liability under Art. 1382 of the FCC does arise out of a
faute, a fait quelconque de Vhomme. Liability under Art. 1384(5) of the FCC
does not; at least it is not anymore in faute that the jurisprudence and the doctrine
predicate the master’s (commettant) liability for the act of his subordinate
{préposé).
[169] “The expert opines that:
‘Although the principal does have to answer for its employee’s wrongful
acts, it is certainly not because the principal “takes over” the employee’s
wrongful act for itself; or the employee’s wrongful act “reverts” to the
principal; or the employee’s wrongful act is legally “supposed to have
been committed” by the principal. The basis of the principal’s liability is
to be found elsewhere. It is either in an independent wrongful act (failure
due to the choice of the employee, failure to supervise the employee); or to
be found in the risque-profit theory (the principal makes a profit from the
employee’s activities) or the risque-autorité theory; or further in the idea of
guarantee (the law provides the victim with a guarantor, which is the
principal. However, no one has thought that the employee’s wrongful

!

act could be extended to the principal by some kind of taking over or
extension of the personality of the employee who is guilty of the wrongful
act. As a result, the statement “Mr. H’s dol thus became that of his assignor,
Mr. Q and First Respondent”, is completely inaccurate under French law’.
(Expert report, English translation provided by Respondents’ counsel.)
[170] “It seems ‘thus that the predication of a dol (initially wrongful act), on
the one hand, and liability for subordinates {cura in eligendo, cura in instruendo,
cura in custodiendo, risk involved in a profit-seeking activity or risk involved in
exercising any authority), on the other hand, is very different, and it would be
illogical simultaneously to combine two repugnant causes of liabilities. Expert
for Claimant agrees that it is important to stress that the liability of the com¬
mettant is a strict liability, meaning that it does not require any negligence or bad
faith to be proved. However, he opines, in total disagreement with Respondents’
expert, that
‘Even in situations giving rise to pre-contractual or tortious liability, it has

already been held that a dol committed by the préposé is to be attributed to
the commettant. . . . Indeed, Art. 1384(5) of the French Civil Code provides
that the commettants are liable for the damage caused by their préposés.
Such provision covers any wrongful act by the préposé, including a dol, as
long as such an act is committed within the framework of its duties {dans le
cadre de ses fonctions). For instance, in a decision dated February 1983, the
French Cour de Cassation confirmed a Court of Appeals decision which
had decided that a bank was liable for the dol committed by one of its
préposés. Such a dol, which consisted of false declarations made to convince
a person to guarantee the loan of another, was committed before the exe¬
cution of the transaction, i.e. during the formation stage of the contract. It
was held that the dol committed by the préposé had to be treated as a dol by
the bank itself. If it were not possible to hold the fraudulent acts of such
préposés to be those of the company, there would be situations where one
could never claim the company’s liability for the consequences of those
fraudulent acts. The only condition required to attribute the acts of the
préposé to the commettant, as stated in Art. 1384(5) of the French Civil
Code, is that the act be committed within the framework of the duties of the
préposé.’
This is a very impressive argument which, however, may not be accepted for the
following reasons.
[171] "First, one may wonder whether it is possible for Claimant to argue any
tortious liability at all. Claimant did claim under the Agreement’s provision

relating to representations and warranties and, as a consequence, did not seek

nullity of such Agreement; quite to the contrary. Claimant sought responsabilité
contractuelle as a first remedy. It is a principle that, under French law, there is no
cumul des responsabilités contractuelle et délictuelle. In principle, it is where the
victim voids a contract based upon a dol that he may also claim based upon tort
( Cour de Cassation, First Civil Chamber, 4 February 1975, JCP 1975, II 18100,
note Professor Larroumet).
[172] “Second, and this is the fundamental reason, as just quoted,
Respondents’ expert states emphatically that ‘No one has ever imagined to
extend the “fault” of the subordinate to the master, by means of a sort of acqui¬
sition (emprunt) or extension of the tortious personality of the subordinate’
(second opinion).
[173] “Claimant’s expert does, however, cite the French Cour de Cassation
7 February 1983 decision. The facts of the case leading to this decision are similar
to the events which led to the present arbitration. However, this decision does
not seem to be a precedent fitting for this Award. The 7 February 1983 decision
would be a totally isolated decision: the expert does not cite any other case law
or author supporting the application of Art. 1384(5) of the FCC in the frame¬
work of a dol (Art. 1116 of the FCC). The 7 February 1983 Cour de Cassation
decision is an arrêt de rejet (a dismissal decision), which may limit its authority
as precedent but, worse, will not be hallmarked with a visa, i.e., an initial sac¬
rosanct express reference to a provision of the law. As a matter of fact, the Cour
de Cassation mentions in passing (not as a visa) Art. 1166 (rectius 1116) of the
FCC, which is a reference to the dol but in no way Art. 1384(5) of the FCC and
never uses the words commettant or préposé. It is not possible to be affirmative,
but this Cour de Cassation decision which, again, would be an isolated decision
that apparently did not draw much attention from the authors, does not seem to
make any use of responsabilité des commettants.
[174] “As a supplemental reason, under French law, where there is a delega¬
tion of duty or assignment and where the assignee commits a deceit, the principal
cannot be deemed to have constructive knowledge of the non-disclosed infor¬
mation by the assignee and, accordingly, cannot be deemed to have had the
intent to deceive the other party, if the principal was not actually aware of
the undisclosed information. This is further confirmed by the fact that even
in case of a deceit committed by a strictly speaking representative (or agent) -
which is not the case here, since the Arbitral Tribunal found that Mr. H did not
represent First Respondent - French case law does not seem to attribute the
deceit to the principal if the principal was not aware of the manoeuvres com¬
mitted by the agent.
[175] “Indeed, in its decision of 29 April 1998, the French Cour de Cassation
held that the principal was liable for the deceit committed by its representative

,J

because the principal was aware of the deceitful acts committed by the
representative:
‘Having noted that SCI had entrusted CEF with a mandate to sell the
apartments and that it was not established that this company had gone
beyond the limits of its representative power granted by the principal,
while SCI was aware of the deceitful information communicated by
CEF to the potential buyers and had benefited from the deceit ... the
cour d’appel was entitled to deduct that SCI was liable for the deceit com-
mitted towards the spouses Morin, third party acting in accordance with
good faith, by CEF in the performance of its mandate.’ (Free translation by
the Arbitral Tribunal.)
[176] “A contrario, it appears that the deceit of the agent cannot be attributed
to the principal in case of representation if the principal was not aware of the
:Y'< deceitful acts of the agent. The Arbitral Tribunal is of the opinion that, a fortiori,
the deceitful acts cannot be attributed in case of a mere delegation of duty (as
opposed to a representation) if the principal was not aware of the deceitful acts,
as is the case here.
[177] “In conclusion, the Arbitral Tribunal finds that the deceit of Mr. H
cannot be attributed to First Respondent, so that Claimant’s claim based
upon the theory of deceit must be dismissed. This conclusion may prima
facie look harsh to Claimant who definitely acted in good faith and did not
commit any negligence or imprudence when it entered into the Agreement.
However, this Tribunal does accept that and also that Respondents did act
just as diligently and in good faith at all times. That Mr. H did not is another
story. Claimant could have obtained full relief under the representations and
warranties provision if it had not been time-barred. The elapse of time is the
cause of this apparent injustice, not Respondents’ own conduct - which this
Tribunal found ethical.”
c. Time-bar and waiver
[178] “It is therefore not necessary to examine whether Respondents’ other

arguments with respect to the issue of deceit are founded (i.e., whether
Claimant’s claim is time-barred or whether Claimant waived its right to
indemnification).”
[179] “However, it may be fitting to add that, assuming for the sake of argu¬
ment that Mr. H’s deceitful acts were attributable to First Respondent, then
Mr. Z’s finding out about and knowledge of the anti-competitive practices as
well as his failure to give notice of his finding[immediately], would be attributable
Reprinted from the Yearbook Commercial Arbitrât!! 293

to Claimant. His position was the same as that of Mr. H, namely heading
Company X: attributing Mr. H’s knowledge to Company X’s parent
Company would of necessity lead subsequently to attributing Mr. Z’s, his suc¬
cessor’s, knowledge to Company X’s new parent company, i.e., Claimant.
Furthermore, Mr. Z was the relevant divisional manager within the meaning of
Art. 8.4.1 of the Agreement. Under this hypothesis, Mr. Z’s failure to react after
his finding out and the fact that the Agreement was performed after his finding out
- e.g., the final instalment on the purchase price was transferred at a later date -
would amount to a confirmation of the Agreement and a waiver of any indem¬
nification based upon a deceit.”
IX. BREACH OF THE SHARE PURCHASE AGREEMENT
[180] “In Claimant’s submission, since Company X was engaged in anti¬

competitive practices, it is obvious that the representation and warranty set
forth in Art. 7.6.3(vii) of the Agreement - to the effect that Company X was
not engaged in any such practices - was incorrect. In addition, since First
Respondent was aware of Company X’s engagement in anti-competitive prac¬
tices, it must be concluded that the warranty set forth in Art. 7.14.1 of the
—
Agreement to the effect that First Respondent had disclosed to Claimant all
circumstances regarding the business of Company X, of which it was aware, that
could have an effect on Claimant’s decision to acquire Company X, or the terms
under which the transfer was made - was also incorrect.
[181] “Claimant argues that under Art. 8.1.1 of the Agreement, First
Respondent has an obligation to compensate Claimant for the full loss suffered
by any of Company X or Claimant due to the fact that the representations and
warranties given by First Respondent in Arts. 7.6.3(vii) and 7.14.1 of the
Agreement were incorrect, or in other words, due to the fact that Company
X was engaged in anti -competitive practices. Since any damage that may be
incurred by Claimant or Company X as a consequence of the EU investigation
will be incurred as a consequence of the fact that the representations and war¬
ranties given by First Respondent in the above-mentioned Articles of the
Agreement were incorrect, First Respondent has an obligation to compensate
Claimant for such damage.
[182] “Claimant further submits that Respondents’ liability is not precluded
by any contractual time limitation set forth in the Agreement. In particular,
Claimant submits that, under French law, First Respondent cannot rely on
the time limitation set forth under Art. 8.3.1 of the Agreement because of its
deceitful behaviour. In this respect, Claimant argues that pursuant to Arts. 1134

---s:
35E3Z3

and 1150 of the FCC, a party is not entitled to rely upon a clause limiting its
liability under a given warranty if the limitation clause was entered into by the
guarantor in bad faith. Since Art. 8.3.1 of the Agreement to the extent that it
reduces First Respondent’s liability (by curtailing the duration of its liability)
under Arts. 7.6.3(vii) and 7.14.1 of the Agreement, was included in the
Agreement although First Respondent was aware that the warranties made in
such provisions were untrue and given that First Respondent deceitfully
induced Claimant to enter into the Agreement, it is clear that First
Respondent limited the duration and therefore the scope of the warranties in
bad faith. Under those circumstances, as a matter of French law, First
Respondent is not entitled to exonerate itself from liability under the warranties
set forth in Ans. 7.6.3(vii) and 7.14.1 of the Agreement, by arguing that the claim
was not brought within the time limit set forth in Art. 8.3.1 of the Agreement.
[183] “Claimant further submits that it is not necessary for the Arbitral
Tribunal to find that there was a deceit to conclude that the limitation set
forth in Art. 8.3.1 is not applicable. Indeed, under French law, it is sufficient
to establish gross negligence (which does not presuppose intent) in order to set
aside such a limitation clause. Claimant submits that First Respondent commit¬
ted, if not a deceit, at least faute lourde. On that basis, Claimant submits that its
claim is not time-barred.
[184] “Claimant further contends that Art. 8.4.1 of the Agreement - which
provides that Claimant shall notify First Respondent in writing of any event
giving rise to the implementation of the provisions of Art. 8.1 of the Agreement
within 30 days from the date when the relevant divisional manager became
aware of such event - does not preclude Claimant’s claim. Claimant does not
dispute that Mr. Z was the relevant divisional manager, that he became aware of
the anti-competitive practices at date W and that he did not inform First
Respondent of its discovery within the 30-day time limit. Yet, in Claimant’s
submission, Art. 8.4.1 of the Agreement does not preclude its claim for breach of
contract for the following reasons.
[185] “Before the dawn raid, neither Claimant nor Company X had suffered
any loss as a consequence of First Respondent’s incorrect representations, so
that no events had occurred that would have given rise to the implementation of
Art. 8.1 of the Agreement -in other words, Art. 8.4.1 had not been activated yet.
Even if the Arbitral Tribunal were to find that Art. 8.4.1 of the Agreement
became applicable, it would have to find that the failure to comply with this
provision does not entail preclusion. This is so because, under French law,
failure to comply with an agreed notification period regarding breach of war¬
ranties and representations bars claims under such representations and warran¬
ties only if this has been explicitly agreed. As the Agreement does not
specifically provide that failure to comply with Art. 8.4.1 of the Agreement

entails preclusion or any other sanction, Claimant’s failure to notify within 30

days does not bar its contractual claim. The parties did not intend Art. 8.4.1 of
the Agreement to extend beyond what is mentioned in its heading, namely
‘Procedure’, and therefore a failure to comply with such procedure does not
affect Respondents’ liability for breach of contact. Furthermore, Claimant
argues that Art. 8.4.1 of the Agreement should be interpreted in the light of
Art. 8.1.3, itself providing that there should be a waiver or release by Claimant in
writing in order for it to validly waive a right under the Agreement.
[186] “In any event, even if the Arbitral Tribunal were to find that Art. 8.4.1 of
the Agreement was actually activated by Mr. Z’s discovery, and that Art. 8.4.1
could therefore entail the preclusion of Claimant’s rights under the representa¬
tions and warranties, such precluding effect should still not be recognized in the
present case. This is so because French law does not accept contractual provi¬
sions that limit the liability under guarantees if such limits were negotiated in
bad faith or if the party seeking to limit its liability committed gross negligence.
Since First Respondent committed, at least, a faute lourde by representing that
Company X had not been engaged in anti-competitive practices even though it
knew that such practices existed, Respondents should not be allowed to rely
upon Art. 8.4.1 of the Agreement.
[187] “Finally, Claimant contends that Respondents’ argument that Claimant
waived its right to indemnification for loss caused by Respondents’ acts is
without any merit. In Claimant’s submission, this is so because Art. 8.1.3 of
the Agreement expressly provides that Claimant’s rights under the representa¬
tions and warranties are not affected by any event or matter whatsoever other
than ‘a specific and duly authorised written waiver or release executed by the
Buyer’. The parties had thus explicitly agreed that Claimant’s rights, to the
extent that they were based upon breach of the contract, could not by waived
by conduct. In any event, Claimant submits that there are no circumstances in
the case that could possibly be construed as a waiver by Claimant of its right to
indemnification and Respondents’ assertion that a waiver can be inferred from
mere passive conduct is incorrect.”
[188] “Respondents contend that Claimant’s claim based upon an alleged

breach of the Agreement is time-barred for two reasons.
[189] “First, Respondents argue that pursuant to Art. 8.3.1(ii) of the
Agreement, Claimant’s claim based upon an alleged violation of Arts.
7.6.3(vii) and 7.14.1 of the Agreement should have been made but was -
not made - within a period of three years from the Transfer Date, so that
it is time-barred.

,!
I
Si

[190] “Second, Respondents submit that Claimant’s failure to notify First
Respondent in compliance with Art. 8.4.1 of the Agreement - which provides
that Claimant shall notify First Respondent in writing of any event giving rise to
the implementation of the provisions of Art. 8.1 within 30 days from the date
when the relevant divisional manager became aware of such event - bars
Claimant from seeking indemnification. In this respect, Respondents note
that it is not disputed that Mr. Z, the relevant divisional manager within the
meaning of Art. 8.4.1 of the Agreement, did not inform First Respondent about
his discovery within the 30-day time limit. Respondents also submit that
Claimant’s argument that Art. 8.4.1 of the Agreement was not triggered before
Í-
the dawn raid (since it requires a loss to be triggered) is without any merit.
Indeed, in Respondents’ submission, given the clear wording of Art. 8.4.1,
this provision is triggered even if a loss has not yet materialized.
Furthermore, Respondents argue that even though the Agreement does not
■¥
explicitly set forth the consequences of a failure to comply with Art. 8.4.1, it
was clearly the intention of the parties that Claimant would forfeit its right to
indemnification as a result of such failure. As for Claimant’s argument that Art.
8.4.1 of the Agreement should be interpreted in light of Art. 8.1.3 of the
Agreement, which provides that there should be a written waiver or release
by Claimant in order for it to validly waive a right under the Agreement,
Respondents submit that it should be rejected because such an interpretation
would deprive Art. 8.4.1 of any meaning and would be contrary to Art. 1157 of
the FCC, under which a clause must be ascribed a meaning rather than none.
This was clearly not the intention of the parties in Art. 8.1.3, which deals with
the scope of the representations and warranties, not the procedure for triggering
indemnification under the warranties.
[191] “Respondents also submit that, contrary to Claimant’s contention, there
is no justification for refusing to apply Art. 8.3.1(ii) or Art. 8.4.1 of the
Agreement under either French or Swedish law. Specifically, with respect to
French law, Respondents argue as follows.
[192] “The only remedies provided in Art. 1116 of the FCC, which governs
claims for a deceit, are the annulment of the entire agreement and claim for
tortious damages, but not the setting aside of one clause only of the agreement.
Under French law, divisible deceit {dal divisible) is recognized only when the
sole purpose of the deceitful acts is to induce a party to include a specific
provision in the agreement. However, Claimant has never argued that the
alleged deceit by First Respondent was made to induce Claimant to accept
Art. 8.4.1 or Art. 8.3.1. Accordingly, these contractual provisions would be
applicable and enforceable even if the Arbitral Tribunal were to find that
First Respondent committed a deceit.

i
[193] “Art. 1150 of the FCC, upon which Claimant relies, does not apply in
the present case for two reasons. First, this provision relates to the performance
of the agreement and not to the formation of the agreement, and Claimant has
not alleged any deceitful acts occurring after the execution of the Agreement
which would form the basis of a deceit in the performance of the Agreement.
Second, the.scope of Art. 1150 of the FCC is limited to clauses that bear on the
extent of the liability of a party in case of breach, as opposed to clauses providing
for the obligations of that party. In Respondents’ submission, no deceit or
similar wrong can be committed in failing to perform an obligation upon
which the parties have not agreed.
[194] “In any event, should the Arbitral Tribunal consider that Claimant’s
claims are not time-barred, the evidence shows that First Respondent commit¬
ted no wrongful act, whether in contract or in tort. Indeed, there is no evidence
whatsoever showing that First Respondent was aware of the anti-competitive
practices or showing wilful concealment.
[195] “Respondents further contend that if the Arbitral Tribunal were to find
that Art. 8.4.1 of the Agreement is not applicable, then it would have to conclude
that Claimant tacitly waived its right to any indemnification. Indeed,
Respondents argue that Claimant’s failure to notify First Respondent in full
knowledge of certain perceived anti-competitive practices, at a time when a
reaction would have been expected in the circumstances, constituted a waiver
under either Swedish, French or Danish law. As for Claimant’s argument that a
waiver can never be inferred from mere inactivity, Respondents submit that it is
wrong. Respondents also contend that the active participation of Company X in
the trade association after the date of the sale of Company X, through Mr. Z, also
constitutes a waiver of Claimant’s right to indemnification.
[196] "In any event, Respondents contend that, should the Arbitral Tribunal
find that Claimant is not barred from seeking indemnification for breach of
contract, then it would have to conclude that First Respondent did not breach
Arts. 7.6.3(vii) and 7.14.1 of the Agreement for the following reasons:
(a) Given that no decision of the competent EU body has been rendered on the
issue whether or not Company X violated EU competition law at the date
of closing, there is no certainty that Company X actually violated EU
competition law. Unless and until such a decision is rendered, there can
be no breach of the representation and warranty set forth in Art. 7.6.3(vii)
of the Agreement.
(b) As for Art. 7.14.1 of the Agreement, Claimant has failed to prove that First
Respondent, at the closing date, was ‘aware of . . . facts and circumstances
relating to the affairs of Company X which, if disclosed to Claimant might
reasonably have been expected to influence the decision of Claimant to

: purchase the shares’ in Company X ‘on the terms contained’ in the Agree¬
; ment. In Respondents’ submission, the truth of the matter is that First
Respondent was not aware of any such facts and circumstances, because
both Mr. Q and First Respondent's in-house counsel were the sole repre¬
sentatives of First Respondent in the negotiations and because they were
not aware of the anti-competitive practices.”
a. Breach
[197] “Under Art. 7.6.3(vii) of the Agreement, First Respondent represented

and warranted that Company X was not, on closing date, a ‘party to or bound by
any agreement or similar arrangement in violation of any antitrust or similar law
in any jurisdiction in which (it) has conducted business’. In the Arbitral
Tribunal’s view, such warranty and representation is a so-called ‘objective’
clause. In other words, if the representation that is given is incorrect, such rep¬
resentation is breached irrespective of whether or not the party giving the rep¬
resentation was aware of its incorrectness.
[198] “In the present case, as previously mentioned, Company X was engaged
in illegal anti-competitive practices prior to its acquisition by Claimant until
closing date and such practices were not disclosed to Claimant during the due
diligence or during the negotiation of the Agreement. Hence, the Arbitral
Tribunal finds that First Respondent breached Art. 7.6.3(vii) of the Agreement.
[199] “The second representation and warranty that First Respondent alleg¬
edly breached is Art. 7.14.1 of the Agreement, which provides that First
Respondent was not, on closing date, ‘aware of . . . facts and circumstances
relating to the affairs of Company X which, if disclosed to Claimant might
reasonably have been expected to influence the decision of Claimant to purchase
the shares’ in Company X ‘on the terms contained’ in the Agreement. Contrary
to Art. 7.6.3(vii) of the Agreement, this provision refers to the awareness of First
Respondent. Thus, it is only breached if it is established that First Respondent
was aware of such circumstances on closing date.
[200] “As stated above, the Arbitral Tribunal has concluded that neither
Mr. Q nor the in-house counsel, who represented First Respondent during
the negotiation of the Agreement, was aware of the anti-competitive practices.
The Arbitral Tribunal has also found that Mr. H, who was aware of the anti¬
competitive practices, did not represent First Respondent during the negotiation
of the Agreement. The same is true with respect to Mr. P, who had been asked to
carry out some ministerial acts, but who was not authorized to perform any legal
Reprinted from the Yeaibook Commercial Artjitration 299

acts on behalf of First Respondent. On that basis, the Arbitral Tribunal finds
that First Respondent was not aware of facts and circumstances that, if disclosed,
might reasonably have been expected to influence the decision of Claimant to
purchase the shares of Company X within the meaning of Art. 7.14.1 of the
Agreement. In other words, the Arbitral Tribunal finds that First Respondent
did not breach Art. 7.14.1 of the Agreement.
[201] “Having found that First Respondent breached Art. 7.6.3(vii) of the
Agreement, the Arbitral Tribunal will now examine whether Claimant’s
claim based upon the breach of the Agreement is time-barred under Arts.
84.1 and/or 8.3.1 of the Agreement, as alleged by Respondents.
[202] “Art. 8.4.1 of the Agreement provides that Claimant shall notify First
Respondent in writing of any event giving rise to the implementation of the
provisions of Art. 8.1 of the Agreement within 30 days from the date when the
relevant divisional manager became aware of such event. It is not disputed that
Mr. Z was the relevant divisional manager within the meaning of this provision,
that he became aware of the anti-competitive practices at date W and that he did
not inform First Respondent of the Buyer’s discovery within the 30-day time
limit.
[203] “Contrary to Claimant’s allegation, the Arbitral Tribunal is of the opin¬
ion that Art. 8.4.1 of the Agreement was triggered by Mr. Z’s discovery of the
anti-competitive practices. Art. 8.4.1 of the Agreement refers to ‘any event’
giving rise to the implementation of the provisions of Art. 8.1 of the
Agreement. The discovery of the anti-competitive practices and thus of the
breach of the Agreement was such an event. The fact that Claimant had not
yet suffered any loss at that time is not material, since Art. 8.4.1 of the
Agreement does not require that a loss be incurred for this provision to be
triggered.
[204] “Another question is whether Art. 8.4.1 of the Agreement precludes
Claimant’s claim for breach of the Agreement. On the one hand, it is true
that Art. 8.4.1 of the Agreement, under the heading ‘Procedure’, does not spe¬
cifically provide that failure to comply with this provision entails preclusion or
any other sanction. Had the parties intended Art. 8.4.1 of the Agreement to have
such an [effect], they would probably have provided so explicitly. However, on
the other hand, one may wonder why the parties included such a provision if
failure to comply with it did not have any consequences.
[205] “Be that as it may, the question whether Art. 8.4.1 of the Agreement
precludes Claimant from seeking indemnification for the breach of the
Agreement can be left open, given that Claimant’s claim is in any event time-
barred under Art. 8.3.1 of the Agreement, as explained below.”

■/ Fÿ-.-:-V. .-ÿÿv:ÿ:ÿ-:-ÿ-: :7J IT?ÿ i-üsuszsæsÿ
p
*
b CASE NO. 12502, 2005 ARBITRAL AWARDS
l Time-bar
t; [206] “Art. 8.3.10(i) of the Agreement provides that the
I ‘warranties granted to the Buyer [Claimant] by the Seller [First Respon¬

dent] pursuant to this Article [Article 8] shall remain valid for claims made
by the Buyer [Claimant] until eighteen (18) months after the Transfer Date,
S: except that the liability of the Seller to indemnify the Buyer for breach of
I warranties with respect to
: (ii) any matter relating to an indemnity claimed as a consequence of any
! request, demand, injunction, judicial or administrative procedure against

any of the Acquired Company arising from a third party shall be indem¬
nified by the Seller for a period of three (3) years from the Transfer
Date. . .
It is common ground between the parties that Claimant did not raise its claim
within three years from the Transfer Date.
[207] “Claimant argues, however, that First Respondent cannot rely on the
time limitation set forth under Art. 8.3.1 of the Agreement because it committed
a deceit or, at least, gross negligence. Contrary to Claimant’s argument, the
Arbitral Tribunal finds that Art. 8.3.1 of the Agreement is applicable and
enforceable for the following reasons.
[208] “First, the record does not show that First Respondent deceitfully
induced Claimant to accept Art. 8.3.1 of the Agreement. Mr. H’s deceitful behav¬
iour - which, as explained above, is not attributable to First Respondent - related
solely to the anti-competitive practices, but not to Art. 8.3.1 of the Agreement.
In fact, Mr. H did not negotiate this provision. In other words, First
Respondent did not deceitfully induce Claimant to accept Art. 8.3.1 of the
Agreement, and this provision can therefore not be set aside on such basis.
Moreover, there is no sufficiently convincing evidence on record to conclude
that First Respondent committed gross negligence when negotiating Art. 8.3.1
of the Agreement.
[209] “Second, the Arbitral Tribunal is of the opinion that Art. 1150 of the
FCC, upon which Claimant relies, does not apply in the present case for two
reasons. First, as acknowledged by Claimant, this provision relates to perfor¬
mance of an agreement, as opposed to its formation. The record does not show
any facts that could amount to a deceit in the performance of the Agreement.
Indeed, the deceitful acts upon which Claimant relies all pertain to the formation
of the Agreement. Second, Art. 1150 of the FCC applies to clauses that limit
liability. Art. 8.3.1 of the Agreement does not limit the extent of First
Reprinted from the Yearbook CommerciarArbitratian 301

Respondent’s liability, but relates to the duration of the representations and

warranties, as also evidenced by its heading. Hence, the Arbitral Tribunal
finds that Art. 8.3.1 of the Agreement is not a limitation clause within the
meaning of Art. 1150 of the FCC.
[210J “Third, even if the Arbitral Tribunal had considered that Art. 1150 of the
FCC was applicable, it would have found that Claimant did not prove that First
Respondent entered into Art. 8.3.1 of the Agreement ‘in bad faith’ within the
meaning of Art. 1150 of the FCC, because, as explained above, First Respondent
did not deceitfully induce Claimant to accept Art. 8.3.1 of the Agreement or
commit gross negligence when negotiating this provision. For the very same
reasons, the general French legal principle, upon which Claimant relies and
according to which it is unlawful for a party to a contract to exonerate itself
in advance from liability deriving from its own deceit, would not lead to the
conclusion that Art. 8.3.1 of the Agreement is unenforceable. Thus, whether
such a general principle exists under French law can be left open.
[211] “Fourth, the Arbitral Tribunal notes that clauses like Art. 8.3.1 of the
Agreement, which limit the duration of the representations and warranties, are
very common in share purchase agreements. Furthermore, the three-year time
limit set forth in Art. 8.3.1(ii) of the Agreement is very reasonable.
[212] “For the above reasons, Art. 8.3.1 of the Agreement is valid and enforce¬
able under French law. Thus, given that Claimant failed to bring its claim within
the three-year time limit set forth in Art. 8.3.1(ii) of the Agreement, its claim
based upon a breach of the Agreement is time-barred.
[213] “Given that the Arbitral Tribunal dismissed Claimant’s claim based
upon a breach of the Agreement on this ground, it is not necessary to examine
the parties’ other arguments in this respect (e.g., whether Claimant waived its
right to indemnification by conduct).”
X. PRE- CONTRACTUAL BREACH
[214] “Claimant argues that First Respondent committed a pre-contractual

breach in violating its obligation to properly inform Claimant in the course
of the negotiation of the Agreement. Specifically, Claimant submits that it is
well established under French Law that a party who accepts to provide infor¬
mation to the other in the course of the negotiation of a contract is under a duty
to inform the other party properly and fully. In the event that a party violates
such duty to inform, it must indemnify the other party for all losses incurred as a
consequence of the fact that correct information was not provided, in accor¬
dance with Art. 1382 of the FCC.

s
[215] “In Claimant’s submission, since First Respondent did not inform
Claimant of the anti-competitive practices, but in fact provided untrue infor¬
mation in this regard, it is clear that First Respondent violated its obligation to
provide truthful information of all relevant facts concerning Company X.
Accordingly, First Respondent is under an obligation to indemnify Claimant
for any damages incurred as a consequence of the fact that correct information
was not provided, in accordance with Art. 1382 of the FCC.
[216] “Claimant further submits that if the Arbitral Tribunal were to conclude
that First Respondent had no direct knowledge of the anti-competitive prac¬
tices, First Respondent would nevertheless have violated its pre-contractual
duty to inform Claimant properly and truthfully, because under French law,
if someone undertakes to provide information, he is under a duty to inform
himself in order to be able to provide correct information (i.e., l’obligation de
s’informer pour informer). Failing to do so amounts to a fault under Art. 1382 of
the FCC.
[217] "Claimant further asserts that Respondents’ argument that the pre-
contractual duty to inform based upon Art. 1382 of the FCC is excluded
since the Parties entered into the Heads of Agreement is without any merit.
This is so because the Heads of Agreement have become null and void, in
accordance with Art. 13(c) of the Heads of Agreement. In any event, even if
the Heads of Agreement were to apply, they would not cover the negotiation
of the Agreement itself (as opposed to the due diligence). Moreover, the Heads
of Agreement terminated when no final agreement had been concluded, but
rather the negotiations continued for another month. During such period, no
‘pre-contract’ existed at all and, therefore, during such period, at the very least,
First Respondent was under the usual duty to inform.
[218] “Claimant also argues that its claim based upon a breach of First
Respondent’s pre-contractual duty is not time-barred, contrary to
Respondents’ allegation. In this respect, Claimant contends that: Arts. 8.3.1
and 8.4,1 of the Agreement do not apply, because its claims are based upon
the breach of Claimant’s pre-contractual obligation to provide correct informa¬
tion and thus are not based upon the Agreement. Even if Arts. 8.3.1 and 8.4.1 of
the Agreement had explicitly precluded Claimant from raising claims based
upon a breach of pre-contractual duty, such provisions would have been invalid
under French law, because French law does not recognize clauses limiting extra-
contractual liability under Art. 1382 of the FCC.
[21 9] “In fact, Claimant’s claim based upon a breach of First Respondent’s
pre-contractual duty under Art. 1382 of the FCC is subject to a statute of
limitations of ten years, in accordance with Arts. 1304 and 2270(1) of the FCC.
[220] “Finally, Claimant contends that it has not tacitly waived its right to
indemnification, as alleged by Respondents.”

[221] “Respondents argue that Claimant’s claim based upon an alleged breach
of First Respondent’s pre-contractual duty to inform should be dismissed
because (a) it is time-barred, like all other claims brought by Claimant; and
(b) Claimant failed to prove that First Respondent had any intent to deceive.
[222] “Respondents submit that the alleged breaches of a pre-contractual duty
cannot be a tort issue, as alleged by Claimant, because the parties contractually
organized their relationship prior to the execution of the Share Purchase
Agreement - diligence period - through the Heads of Agreement. In
Respondents’ view, if the Arbitral Tribunal were to conclude that the Heads
of Agreement still apply, then it would have to find that Claimant failed to show
that First Respondent did not comply with any of its obligation under the Heads
of Agreement, in particular, Art. 10 relating to the due diligence. If the Arbitral
Tribunal were to conclude that the Heads of Agreement should be entirely
cancelled and replaced by the Share Purchase Agreement, this would in fact
make the issue of the alleged breach of a pre-contractual duty to inform an
issue of formation of the Agreement. In this respect, Respondents argue that
Claimant failed to prove that First Respondent committed a deceit (which is a
sine qua non condition for Claimant to prevail) and that, in any event, Claimant
is precluded from seeking indemnification because it failed to comply with Art.
8.4.1 of the Agreement or, alternatively, because it tacitly waived its right to
indemnification.”
[223] “As previously stated, the Arbitral Tribunal has found that: (i) Claimant
can no longer rely upon the Heads of Agreement in support of its allegation that
First Respondent breached its pre-contractual duty to inform Claimant prop¬
erly and truthfully; and (ii) the choice-of-law clause contained in the Agreement
applies instead of the choice-of-law clause of the Heads of Agreement. The
alleged breach of First Respondent’s pre-contractual duty to inform is therefore
governed by French law.
[224] "As a preliminary matter, the question arises whether Claimant can rely
upon Art. 1382 of the FCC to claim damages for the alleged breach of First
Respondent’s pre-contractual duty to inform Claimant properly, or whether
Claimant can no longer rely upon such provision since the parties contractually
organized their relationship prior to the execution of the Agreement, as alleged
by Respondents, so that the issue is in fact an issue of formation of the
Agreement.

j
[225] “The Arbitral Tribunal is of the opinion that Claimant can no longer
rely on the tort liability based upon Art. 1382 of the FCC for the following
reasons.
[226] “The arguments raised by Claimant in support of its allegation that First
Respondent breached its pre-contractual duty are in fact arguments which relate
to the formation of the Agreement, as correctly pointed out by Respondents. In
this respect, as explained above, the Arbitral Tribunal has found that First
Respondent did not deceitfully induce Claimant to enter into the Agreement.
Based, inter alia, on the widely-recognized principle of non-cumul des respons¬
abilités under French law, the Arbitral Tribunal is of the opinion that Claimant
cannot rely on pre-contractual tort liability pursuant to Art. 1382 FCC, given
that a valid contract - the Share Purchase Agreement - was entered into.
[227] "Be that as it may, Claimant’s claim based upon an alleged pre-
contractual breach would have to be dismissed for another reason. The
Arbitral Tribunal has concluded that the Heads of Agreement became null and
void. It has not been disputed that the term of the Heads of Agreement elapsed
without being then replaced by a new agreement and that the Agreement was
signed only a month later. A period not covered by contract therefore existed
before the parties entered into the Share Purchase Agreement. Acts or omissions
by a party during that period thus possibly do not fall under the ‘contractual
liability’ umbrella, but rather under pre-contractual tort liability. Although it
seems very artificial to refer to such a short intermediate period to rely on the
pre-contractual duty to inform properly under Art. 1382 of the FCC, this is
at least arguable. One might point out, however, that Art. 15.1 of the Share
Purchase Agreement does exclude any pre-contractual tort liability: it seems
that the intent of the parties was to have the Share Purchase Agreement fully
regulate Respondents’ disclosure obligations in substitution of both the
Heads of Agreement and any other less extensive - albeit, possibly longer-
lived - pre-contractual duty to inform. Indeed, it is apparent that the parties
devised contractually a rather elaborate system of document and information
disclosure. They entered into a preliminary agreement (the Heads of
Agreement) and then provided for the representations and warranties in the
Agreement.
[228] “It follows that they clearly intended contractually to define the extent,
the nature and the lifetime of the disclosures. Furthermore, they agreed that the
Agreement would substitute any earlier agreement including the Heads of
Agreement. It follows that (i) the parties did exhaustively define the disclosures
and were in fact very comprehensive; and (ii) the parties absorbed their earlier
agreement into a final one, thus showing that the latter would encapsulate all
their agreements with respect to the representations. It is thus artificial to find in
a short period of ostensible time where the parties were under no contractual

obligations towards each other a possibility for a tortious liability. In fact, the
parties had no obligations at all during that period. In other words, the Parties
agreed upon an exhaustive matrix of disclosures and warranties and their agree¬
ment defines the nature, the time frame and the extent of such obligations.
[229] “Claimant is therefore not entitled to rely upon Art. 1382 of the FCC. It
should be emphasized that it is Claimant which bears the burden of proving that
the text of the Agreement, albeit clear, is not susceptible of only one
construction.
[230] “Nevertheless, the argument based upon First Respondent’s pre-
contractual duty to inform during this short intermediate period fails for another
reason. The Heads of Agreement became moot, while the Share Purchase
Agreement was entered into a month later. In the Arbitral Tribunal’s view,
Claimant has not shown what acts or omissions Respondents committed during
this specific period that could constitute a breach of First Respondent’s pre-
contractual duty under Art. 1382 or Art. 1383 of the FCC.
[231] “Under French law, a faute under Art. 1382 of the FCC requires that the
perpetrator of the act is aware of what he is doing. The action must be either
volontaire (voluntary) (without the consequences of the act necessarily being
understood) or intentional (deliberate). The Tribunal finds that Mr. Q had cer¬
tainly no intention to commit a fault or offence towards Claimant, on the
contrary he instructed Mr. H to disclose all information.
[232] “Under Art. 1383 of the FCC, whoever causes harm is liable for the
damage he causes, not only intentionally but also when committing an act by
negligence or imprudence. On that basis, First Respondent could be held liable
to compensate the damage that it through its legal representative Mr. Q caused
Claimant. If, namely, Mr. Q acted negligently or imprudently when he delegat¬
ed the material discharge of his duty to inform and disclose to Mr. H and/or
when he transmitted to Claimant incomplete information he had received from
Mr. H without having assured himself (Q) that the information was complete,
then First Respondent must be held liable for fault.
[233] “Under Art. 1382 of the FCC, a faute can be attributed to a legal entity,
e.g., First Respondent, not only on the basis that Mr. H was an employee of First
Respondent (which the Tribunal finds not to be pertinent), but on the basis that
First Respondent’s organization or management was inadequate. However, the
Arbitral Tribunal does not consider that First Respondent was negligent or
imprudent when it selected Mr. H or instructed Mr. H to provide Claimant
with the information it requested. Mr. Q did also dutifully vet the disclosures
when he specifically enquired about the way they were carried out.
[234] “Under French law, if someone undertakes to provide information, he is
under the duty to inform himself so as to be able to provide the correct infor¬
mation. First Respondent discharged that duty. Indeed, evidence on record, in

:.;ÿ

particular Mr. Q’s fax to Mr. P (with copy to Mr. H), shows that Mr. Q, who
represented Respondents during the negotiations, informed himself and dis¬
charged that duty. He organized the collection of information on the guarantees
by giving clear instructions to Mr. H. The fact that Company X had been
engaged in anti-competitive practices - a fact which was well known by both
Mr. H and Mr. P - was never conveyed neither to Mr. Q nor to Claimant. Mr. Q
had no special reason to assure himself that Mr. H’s information was correct. It
should be added that the duty to disclose information will not demand day-to-
day continuous investigation, so that Mr. Q did not have a duty to make sure
that there were no anti-competitive practices each time the parties met during
the negotiations. Mr. Q had discharged his duty and could not assume that Mr.
H was possibly deceiving him. The record shows that Mr. H, wilfully or not, did
deceive Mr. Q and thus, indirectly, Claimant and Respondents. The legal con¬
sequences of such deception must be considered within the legal and contractual
framework which the Parties defined by their successive agreements. Moreover,
even if Mr. Q had inspected the files himself, he would not have found anything
suspect because the problematic documents were not kept in the company’s
files, but rather privately by Mr. P.
[235] “Under these circumstances, it seems that Mr. Q and First Respondent
cannot be blamed for negligence. First Respondent cannot therefore be consid¬
ered as the perpetrator or instigator of the failure to disclose and held liable
under Art. 1382 and 1383 of the FCC.
[236] “Based on the foregoing, the Arbitral Tribunal dismisses Claimant’s
claim based upon an alleged breach by First Respondent of its pre-contractual
duty to inform Claimant.
[237] "Thus, the Arbitral Tribunal does not need to examine the other argu¬
ments raised by the parties (e.g., whether Claimant’s claim based upon the
alleged breach of its pre-contractual duty is time-barred; whether Claimant
waived its right to indemnification).”
XI. CONCLUSION
[238] “In sum, the Arbitral Tribunal has found that:
(1) First Respondent did not deceitfully induce Claimant to enter into the
Agreement, so that Claimant’s claim for indemnification based upon
Art. 1116 of the FCC must be dismissed.
(2) First Respondent breached Art. 7.6.3(vii) of the Agreement, but Clai¬
mant’s claim is time-barred under Art. 8.3.1 of the Agreement.

(3) Claimant’s claim, based upon an alleged breach of First Respondent’s pre- .
contractual duty to inform Claimant properly and truthfully must be dis¬
missed.
(4) Given that First Respondent is not liable, Second Respondent, which
issued a letter of guarantee, is not liable either.”
XII. COSTS
[239] “Respondents claim fees and expenses, plus interest at the applicable
French interest rate to be annually compounded from the date of the award,
in accordance with Arts. 1153(1) and 1154 of the FCC.
[240] “At its session, the ICC Court has fixed the costs of the arbitration at
USD X. Towards this amount, Claimant, on the one hand, and Respondents, on
the other hand, each paid an advance. Under Art. 31(3) of the ICC Rules, ‘the
final Award shall fix the costs of the arbitration and decide which of the parties
shall bear them or in what proportion they shall be borne by the parties’. It is
universally recognized that this rule gives the Arbitral Tribunal broad discretion
in deciding on the costs of the arbitration, which are defined at Art. 31(1) of the
ICC Rules.
[241] “A common method is to award costs to the party having prevailed in
the arbitration or, where there is no clear winner, to allocate costs in proportion
to the outcome of the parties’ claims (costs follow the event). Another criterion
adopted by arbitral tribunals under the ICC Rules is the general conduct of a
party and the more or less serious nature of the case it has defended. The only
general requirement is that the Arbitral Tribunal give the reasons for whatever
solution it adopts, in accordance with Art. 25(2) of the ICC Rules.
[242] “In the instant case, all of Claimant’s claims have been dismissed. It
would not be appropriate simply to apply the principle that costs follow the
event in the present case. Even though Claimant’s claims have been dismissed,
Company X was engaged in illegal anti-competitive practices prior to its acqui¬
sition by Claimant. First Respondent breached the Share Purchase Agreement
by not disclosing such practices to Claimant during the due diligence or during
the negotiations of the Agreement. The legal consequences of such factual
matrix could not be ascertained without a full fact finding procedure and a
most complex legal analysis (which the Parties acknowledged by supplying
comprehensive written submissions and authoritative legal expert opinions).
In this respect, it is noteworthy that the amount of each party’s costs has not
been disputed by the other party and that the amount of each party’s costs is
roughly comparable to the costs of the other party.

,1
w
[243] “Under these circumstances, the Arbitral Tribunal finds, in the exercise
of its discretion, that each Party shall bear its own legal and other costs incurred
in connection with this arbitration.
[244] “As regards the fees and expenses of the arbitrators and the ICC admin¬
istrative costs, they have been fixed by the International Court of Arbitration at
USD X, which the Parties advanced in equal shares.
[245] “For the same reasons as set forth above, the Arbitral Tribunal, exercis¬
ing its discretion, finds that the Parties shall bear the costs of this arbitration in
equal shares.”
(•••O
T
1"

-fí V---
Final award on jurisdiction in case no. 13085 of 2005
Parties: Claimant: Assignee Subcontractor

Respondents: (1) Supplier;
(2) Assignee Bank
Place of Helsinki, Finland

arbitration:
Subject matters: - assignment of contract and arbitration clause

- assignment v. pledge
- referral to parity commission as condition precedent
to arbitration
- waiver of condition precedent
Facts
Supplier entered into an agreement with a customer (the Customer Agreement)

for the construction of a plant. Clause 14.1 of the Customer Agreement read:
“All the disputes that may arise under the present Contract should be
settled by means of negotiations. If such a settlement will become impos¬
sible and the Sides would not be able to settle the disputes within 30 days,
then the disputes are to be presented for settlement to a parity commission
which will consist of 4 (four) members, 2 (two) members from each Side.
The parity commission is appointed within 10 days from the date of written
inquiry for that from one of the Sides.”
Clause 14.2 of the Customer Agreement read:
“If the parity commission is not able to settle the dispute within 15 days
from the moment of its organisation, none of the Sides is able to appoint
their representatives to the parity commission within 10 days, then basing
on the written inquiry of one of the Sides the dispute is to be settled by
Arbitration in the International Commercial Arbitration Court of the _
Chamber of Trade and Commerce of Russian Federation in accordance
with its regulations. During the settlement procedure in the court the

r
applied laws will be property and procedure legislation of the Russian

Federation.”
Supplier then concluded a Subcontract for Equipment Supply (the Subcontract)

with a subcontractor. The Subcontract provided that the Customer Agreement
applied to the Subcontract subject to certain amendments. One of these amend¬
ments was contained under the heading “14. Settlement of disputes and
Arbitration”; it read:
"14.2. All disputes arising out of or in connection with the present subcon¬
tract shall be finally settled under the Rules of Arbitration of the
International Chamber of Commerce by one or more arbitrators appointed
in accordance with the said Rules. The seat of arbitration is Helsinki,
Finland.
14.3. The right of the Sides to refer a matter to arbitration shall apply to
all disputes.
14.4. The language of the proceedings shall be English.”
The subcontractor’s rights and obligations under the Subcontract were subse¬
quently assigned to Assignee Subcontractor as a consequence of the assignment
of part of subcontractor’s business to Assignee Subcontractor.
Supplier obtained an on-first-demand bank guarantee (the Guarantee) from a
bank (First Bank) as surety for Assignee Subcontractor’s fulfilment of its war¬
ranty obligations under the Subcontract. Supplier later assigned rights related to
the Guarantee to a bank, Assignee Bank (the Assignment Agreement).
Ten days before expiry of the Guarantee, Supplier entered into a pledge
agreement (the Pledge Agreement) with Assignee Bank regarding its bank
account with Assignee Bank, the funds in that account and the funds to be
paid to it as well as Supplier’s receivables from First Bank under the
Guarantee. On the same day, Supplier and Assignee Bank also concluded
an agreement regarding Supplier’s rights under the Subcontract (the July
Agreement).
Four days later Supplier, through Assignee Bank, made a request to First Bank
for payment under the Guarantee of a certain amount. The request for payment
was based on Supplier’s assertion that Assignee Subcontractor had failed to
perform in accordance with the Subcontract. First Bank paid the requested
amount to Supplier’s bank account with Assignee Bank.
Another four days later, Assignee Subcontractor obtained an attachment of
Supplier’s real or moveable property to the amount of the Guarantee, against
both Assignee Bank and Supplier, from the City Court of Helsinki. The interim
312 Reprinted from tbe Yearbook Commercial Arbitration

-ZTT7X-.: :ÿ ;TA.
I
!
h" CASE NO. 13085, 2005 ARBITRAL AWARDS
measure order was later converted into a final order. Two months later, Assignee
L
Subcontractor obtained from the Helsinki court another attachment, this
time of the payment by First Bank of the sum under the Guarantee pledged
to Assignee Bank. The interim measure order was later converted into a final
order.
?... Six months later Supplier was declared bankrupt by a district court decision.
Assignee Subcontractor commenced ICC arbitration proceedings. It named
both Supplier and Assignee Bank as defendants, claiming that Assignee Bank,
though not a signatory to the Subcontract, was bound by the arbitration clause
therein as a consequence of the Subcontract’s assignment from Supplier. The
ICC appointed a sole arbitrator. Assignee Subcontractor and Assignee Bank
signed Terms of Reference; Supplier’s bankruptcy estate did not participate in
the drafting.
Under the Terms of Reference, the Sole Arbitrator was to decide first on two
procedural and jurisdictional issues, namely, whether the Sole Arbitrator had
jurisdiction with respect to Assignee Bank and whether Assignee Subcontractor
was obliged to refer the dispute to a parity commission before requesting
arbitration.
By the present award on jurisdiction, the Sole Arbitrator held that he lacked
jurisdiction over Assignee Bank and that Assignee Subcontractor’s request for
arbitration was premature.
In respect of the first issue, the Arbitrator disagreed with Assignee
Subcontractor’s argument that Supplier assigned all its rights under the
Subcontract to Assignee Bank under the Assignment Agreement, the
Pledge Agreement and the July Agreement (collectively, the agreements)
and that, as a consequence, the arbitration clause was also assigned to
Assignee Bank. The Arbitrator held that, on the contrary, the agreements
constituted only pledges or agreements for collateral purposes. In particular,
the initial Assignment Agreement was “a rather normal and straightforward
pledge” and though the July Agreement went to some extent beyond a
common pledge agreement, this was justified by the negative financial situ¬
ation of Supplier. Further, as a general principle of contract law, the assign¬
ment of obligations under an agreement requires the consent of the other
party, unless otherwise provided by the agreement. In this case, there was no
indication that Supplier and Assignee Subcontractor agreed that Supplier’s
rights and obligations under the Subcontract were assigned to Assignee Bank.
The remaining issue was whether Assignee Bank, as pledgee of the Guarantee,
was bound by the arbitration clause in the Subcontract. The Arbitrator reasoned
that the principle of party autonomy dictates that the applicability of an arbi¬
tration clause may not be extended beyond what the parties explicitly agreed
Reprinted from the Yearbook Commercial. Arbitration 313

upon. Here, it had not been shown that Assignee Bank, by accepting the pledge,
also agreed to be bound by the arbitration clause.
The Arbitrator therefore concluded that there was no arbitration agreement
between Assignee Subcontractor and Assignee Bank and that he lacked juris¬
diction over the dispute between those two parties.
The Sole Arbitrator then dealt with the second issue, that is, whether Assignee
Subcontractor was obliged to refer the dispute to a parity commission before
commencing arbitration. He held that although the parity commission mecha¬
nism in the arbitration clause was to some extent incomplete, as argued by
Assignee Subcontractor, it was not so ambiguous that it could be completely
disregarded by the parties. The inclusion of a parity commission appeared to be
an essential feature of the dispute-solving mechanism of the Subcontract, a view
strengthened by the fact that both Supplier and Assignee Subcontractor were
large commercial enterprises which must have been familiar with multi-tier
mechanisms for dispute resolution, which are rather common in construction
and related contracts.
The Arbitrator agreed with Assignee Subcontractor that referral of the dis¬
pute to a parity commission at this stage could be costly and cause delay, but
found that disregarding the parties’ agreement would be “a highly questionable
extension of the Sole Arbitrator’s mandate”.
The Sole Arbitrator dismissed Assignee Subcontractor’s argument that
Supplier and Assignee Bank forfeited their right to invoke Clause 14.1 of the
Customer Agreement - including the parity commission provision - because
they did not invoke it in their response to Assignee Subcontractor’s petition for
attachment to the City Court of Helsinki. The Arbitrator noted that the present
arbitration was a separate procedure, in which objections relating to Clause 14.1
should have been and were raised.
Nor did Supplier and Assignee Bank lose their right to invoke Clause 14.1 of
the Customer Agreement because they did not refer the claims for which
Supplier required payment under the Guarantee to a parity commission prior
to presenting claims for breach of contract and the request for payment under
the Guarantee. The Arbitrator held that the obligation in the Customer
Agreement to comply with certain conditions before initiating arbitration is
an obligation directed at the party that wishes to initiate arbitration.
In conclusion, Assignee Subcontractor was not entitled to initiate arbitral
proceedings against Supplier under the Subcontract.
The Sole Arbitrator finally held that in view of the outcome of the arbitration,
Assignee Subcontractor was to bear the costs of the arbitration and the legal
costs of Assignee Bank.

iz2z-?2z-z-y.-.-.-,---- - ■■
-Vr--

I Excerpt
[1] “In the Terms of Reference and the Timetable for the proceedings it has
been determined that the Sole Arbitrator will first decide separately on the
following two procedural and jurisdictional issues:
(i) Whether the provisions of the arbitration agreement applicable in the

dispute mean that Assignee Subcontractor is, or is not obliged to refer
the dispute to a parity commission in accordance with Clause 14.1 of the
Customer Agreement before requesting arbitration, and, as a consequence
hereof, whether the Sole Arbitrator has or lacks jurisdiction in this case;
(ii) Whether the Sole Arbitrator has or lacks jurisdiction with respect to
Assignee Bank;
Assignee Subcontractor has withdrawn its initial request for disclosure of
certain documents in Supplier’s possession. The Sole Arbitrator will therefore
not decide upon that matter.”
I. JURISDICTION IN RESPECT OF ASSIGNEE BANK
1. The Parties’ Positions
[2] “Assignee Subcontractor has asserted that the Sole Arbitrator has jurisdic¬
tion with respect to Assignee Bank. This has been contested by Assignee Bank
and Supplier. Assignee Bank has requested the Sole Arbitrator to dismiss
Assignee Subcontractor’s claims against Assignee Bank in their entirety due
to its lack of jurisdiction.”
a. Assignee Subcontractor
[3] “Supplier has assigned all its rights under the Subcontract to Assignee Bank
and Assignee Bank is the main beneficiary of the Subcontract. Therefore,
Assignee Bank is also bound by the arbitration clause. The assignment of all
Supplier’s rights under the Subcontract, including the arbitration clause, is a
consequence of the following agreements and assignments between Supplier
and Assignee Bank:
(a) The assignment of the Guarantee to Assignee Bank, including the assign¬
ment of all rights related to the Guarantee;
(b) The July Agreement between Supplier and Assignee Bank; and
(c) The Pledge Agreement.

[4] “By the Assignment Agreement, Supplier assigned the Guarantee and all
rights related to the Guarantee to Assignee Bank. Under the July Agreement,
Supplier gave Assignee Bank exclusive and irrevocable rights to decide and
handle all Supplier’s rights under the Subcontract, in other words the possible
receivables from Supplier, and it was further agreed that Assignee Bank would
be the main beneficiary of the Subcontract (cpro rata 70/30 except the legal
expenses to be covered first 100% to Assignee Bank’). Under the Pledge
Agreement, Supplier pledged to Assignee Bank its rights to the Guarantee
and all other receivables that Supplier may have from Assignee Subcontractor.
[5] “Regardless of the wording of certain provisions of the July Agreement,
the purpose and the overall interpretation of the provisions of the agreement
clearly show that Assignee Bank has the full power of decision regarding
Supplier’s rights under the Subcontract in relation to Assignee Subcontractor
and that Assignee Bank is in a position that legally corresponds to the rights of a
subrogee.”
b. Assignee Bank
[6] “Assignee Bank is not a party to the Subcontract containing the arbitration
clause under which Assignee Subcontractor has commenced the proceedings.
The Subcontract has not been assigned to Assignee Bank. It contains an express
provision prohibiting assignments. Supplier has given Assignee Bank a pledge in
Supplier’s receivables from Assignee Subcontractor, but as pledged, Assignee
Bank is not bound by the arbitration agreement between Supplier and Assignee
Subcontractor unless otherwise agreed. Assignee Bank has not entered into any
agreement to the effect that Assignee Bank should be a party to the arbitral
proceedings initiated by Assignee Subcontractor. The assignment was not an
assignment of ‘the Guarantee and all rights related hereto’ as claimed by
Assignee Subcontractor. Instead, the assignment was limited to ‘the proceeds
of any claim under the Guarantee’ and that it was made for collateral purposes
only, i.e. Supplier gave Assignee Bank a right of pledge in the Guarantee.
[7] “This initial pledge was subsequently renewed by a new pledge. The object
of this new pledge was Supplier’s bank account in Assignee Bank including the
funds in the account and funds to be paid to it together with interest. The new
pledge covered also, in addition to the receivables based on the Guarantee, all
other claims for damages and other receivables of Supplier from Assignee
Subcontractor.
[8] “The purpose of the July Agreement was for Supplier and Assignee Bank
to agree on converting the pledge into money. In other words, the July
Agreement should provide for how the parties should proceed with respect

r
r to the claims for compensation and payment made by Supplier to Assignee
Subcontractor and/or the Bank, as well as possible legal proceedings and
i: other measures related to those claims, set out Assignee Bank’s liability for
the administration and costs relating to these matters, and establish how any
payment made by the Bank or Assignee Subcontractor should be divided
between Supplier and Assignee Bank.
[9] “There has not been any assignment to Assignee Bank of either Supplier’s
receivables from the Bank or of Supplier’s receivables from Assignee
Subcontractor. Under Finnish law, the assignment of a receivable is character¬
- ized by the assignee substituting the original creditor so that the original creditor
does not remain bound by the contract, nor is the original creditor entitled, to
payment of the receivables after the assignment. This situation differs from
Supplier’s pledge to Assignee Bank since in the latter case Assignee Bank has
not been substituted for Supplier as the new beneficiary and only Supplier has
been entitled to make any requests for payment under the Guarantee.
[10] "Even if the Guarantee had been assigned to Assignee Bank, it would at
the most result in the jurisdiction clause of the Guarantee becoming applicable
to Assignee Bank. The jurisdiction clause of the Guarantee provides that Finnish
courts have jurisdiction. Even if the Sole Arbitrator had considered that the
Guarantee had been assigned, the effect of this therefore cannot be that the
arbitration clause of the Subcontract and the Customer Agreement would
become applicable against Assignee Bank.”
c. Supplier
[11] “Supplier has in its initial response to Assignee Subcontractor’s request

for arbitration argued that Assignee Bank is not a party to the Subcontract
containing the arbitration clause under which Assignee Subcontractor has com¬
menced these proceedings. Further, Assignee Bank has not entered into any
other possible arbitration agreements with Assignee Subcontractor with respect
to this dispute. Assignee Bank is only the pledgee since Supplier has given
Assignee Bank a pledge in Supplier’s receivables from Assignee
Subcontractor. As pledgee, Assignee Bank is not bound by the arbitration agree¬
ment between Supplier and Assignee Bank unless explicitly agreed, which
Assignee Bank has not done.”
2. Decision
[12] “Assignee Subcontractor has argued that the Assignment Agreement and
the Pledge Agreement together with the July Agreement has the meaning that
Supplier has assigned all its rights under the Subcontract to Assignee Bank and
'
I
that, as a consequence of this assignment of rights, the arbitration clause has also
been assigned to Assignee Bank. Assignee Bank has contested that all rights
under the Subcontract were assigned to it and claimed that the transactions
between Supplier and Assignee Bank were limited to a pledge of rights to
payment.
[13] “The first question then is to establish the scope of the transactions made
between Supplier and Assignee Bank. The initial assignment can, in the Sole
Arbitrator’s opinion, be described as a rather normal and straightforward
pledge. When the pledge was renewed by the Pledge Agreement, Supplier
and Assignee Bank also entered into the more far-reaching July Agreement.
In.support of its view that these agreements constituted a full transfer of the
Subcontract including the arbitration clause, Assignee Subcontractor has argued
that according to the agreement, Assignee Bank was given the full power of
decision over Supplier’s rights. The Sole Arbitrator agrees that the wording
of the July Agreement to some extent goes beyond what is common for a pledge
agreement. However, considering the circumstances of the case, most impor¬
tantly the financial situation of Supplier and the explanations given by Assignee
Bank, it is understandable that the parties wanted to settle the situation in a
firmer way than by a standard pledge agreement.
[14] “Further, as a general principle of contract law, the assignment of obliga¬
tions under an agreement requires the consent of the other party, unless
otherwise provided by the agreement. In this case, no indications have been
presented that Supplier and Assignee Subcontractor have agreed that
Supplier’s rights and obligations under the Subcontract have been assigned to
Assignee Bank. An assignment to Assignee Bank of Supplier’s obligations to
Assignee Subcontractor under the Subcontract would normally have required
the, at least implicit, consent of Assignee Subcontractor. It has not been shown
in the proceedings that Assignee Subcontractor has expressed any acceptance of
a transfer until initiating the arbitral proceedings. This lack of manifestation by
Assignee Subcontractor of acceptance of an assignment seems to support the
view taken by Assignee Bank that the Subcontract has not been assigned.
[15] “In the light of these circumstances, the Sole Arbitrator finds that the
Assignment Agreement and the Pledge Agreement together with the July
Agreement constitute only pledges or agreements for collateral purposes and
not an assignment of the Subcontract.
[16] “The next question that arises is then whether Assignee Bank, as pledgee
of the Guarantee, is bound by the arbitration clause in the Subcontract. The
question whether and to what extent an arbitration clause binds a third party is
sometimes complicated and the circumstances of the case must of course be
taken into account. Nevertheless, the starting point should be that a pledgee

bSÂ~f ••.Tï i. -
I
r is normally not bound by an arbitration clause in the underlying agreement to a

pledged object.
[17] “Assignee Subcontractor has referred to the Swedish Supreme Court’s
ruling in the so called Emja case (NJA 1997 s. 866) where the Court recognizes
that an arbitration clause may be applicable between one party to a contract and
another party to which the contract has been assigned. The Emja ruling is based
on Swedish law, which is not applicable in this dispute. Nevertheless, the
Swedish Supreme Court analyzes the arguments for and against the applicability
of the arbitration clause from a rather general perspective, which makes the
principal reasoning of the case of some interest also to the present dispute.
[18] “First it should be noted that there are some features that distinguish this
dispute from the Emja case. The most important factor is that the Emja case was
concerned with an assignment as opposed to a pledge. Further, the Emja case
was concerned with the transfer of a full contract while this dispute concerns the
transfer of rights to payment but not obligations. In addition this dispute con-
tains an express prohibition against assignment of the Subcontract. In the judg¬
ment of the Sole Arbitrator, these differences speak contrary to applying the
general principles outlined in the Emja case in the present dispute.
[19] “The main argument of the Swedish Supreme Court for finding the arbi¬
tration binding in the Emja case seems to have been that the assignor should not
be allowed unilaterally to liberate himself from the arbitration agreement by
assigning his rights. The ruling in the Emja case has consequently been criticized
for placing too little emphasis on the principles of contract law (cf., e.g.,
Heuman, Skiljemannaratt 1999 p. 111).
[20] “Against the arguments in favour of extending the applicability of an
arbitration clause beyond what the parties explicitly have agreed upon stands
the fundamental principle of party autonomy. It has not been shown in the
dispute now at hand that Assignee Bank, by accepting the pledge, has also agreed
to be bound by the arbitration clause. The view that Assignee Bank is not bound
by the arbitration clause in the Subcontract is further supported by the fact that
the Bank and Assignee Subcontractor have themselves explicitly agreed in the
Guarantee that the Guarantee itself is subject to the jurisdiction of Finnish
courts and not to arbitration.
[21] “As a result of the foregoing, the Sole Arbitrator concludes that Assignee
Subcontractor has not shown that there is an arbitration agreement between
Assignee Subcontractor and Assignee Bank. Consequently, the Sole
Arbitrator has no jurisdiction over the dispute between those two parties.
Assignee Subcontractor’s request for arbitration against Assignee Bank shall
therefore be dismissed.”
Reprinted from the Yearbook Commercial. Arbitration 319

II. OBLIGATION TO REFER THE DISPUTE TO A PARITY

COMMISSION
1. The Parties’ Positions
[22] “The relevant arbitration clause has been described above. . . . Supplier
and Assignee Bank have submitted that Assignee Subcontractor’s request for
arbitration is premature since Assignee Subcontractor has not complied with the
requirement in the arbitration clause that disputes are first to be referred to a
parity commission before arbitration proceedings can be initiated. Assignee
Subcontractor has contested that its action is premature.”
a. Assignee Subcontractor
[23] “Assignee Subcontractor is not obligated, under Clause 14.1, to refer the
dispute to a parity commission before arbitration for the following (alternative)
reasons:
(a) The arbitration clause is not to be construed as meaning that there is an

unconditional obligation of the parties to require establishment of a parity
commission before referring a dispute to arbitration. Different from the
Customer Agreement, Clause 14.2 of the Subcontract does not provide for
a time limit for the duration of the work of a parity commission, nor does it
contain any other provisions to regulate the work of a parity commission or
set out the conditions for when a party is entitled or obligated to refer the
dispute to arbitration. It is clear that the purpose of Clause 14.1 is to oblige
the parties to negotiate with each other in order to reach a settlement of
disputes which arise, but the clause does not prevent a party from seeking
recourse to arbitration if a settlement cannot be reached. Since the Subcon¬
tract does not set any time limits for the alternative dispute resolution
mechanism, by negotiation or parity commission, there is no obligation
to ‘accomplish’ the negotiations or the work of the parity commission
before arbitration proceedings may be instituted.
(b) Due to Supplier and Assignee Bank’s own failure to refer the dispute to a
parity commission, Supplier and Assignee Bank have lost their right to
invoke Clause 14.1 against Assignee Subcontractor. Supplier or Assignee
Bank should have referred the claims for which Supplier required payment
by the Bank under the Guarantee to a parity committee in accordance with
Clause 14.1, before Supplier presented its claims for breach of contract and
the request for payment under the Guarantee. By omitting to do so, Sup¬
plier and Assignee Bank have deliberately breached the Subcontract and

vu _-
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■- l'-j ræ&zsxs!

cannot invoke Clause 14.1 against Assignee Subcontractor’s present claims.
If the Sole Arbitrator considered that Clause 14.1 of the Subcontract is not
J: applicable to the claims presented in connection with the request for pay¬
ment under the Guarantee, Supplier should in any case have initiated the
i, : establishment of a parity committee after thirty days from the day when the
negotiations between the parties with respect to the claims began.
K (c) No need to establish a parity commission under the circumstances of the
case. In view of the negotiations which the parties, including Assignee
I■<.
Bank, conducted for several months before the request for arbitration,
there is no actual need for the establishment of a parity commission. In
the absence of a provision regulating the work of a parity commission, it
would be very hard for a parity commission to refer and handle this case, in
particular when considering the negotiations that were conducted between
the parties during several months.
(d) Forfeiture of the right to invoke Clause 14.1 on procedural grounds.
Regardless of Supplier’s failure to comply with Clause 14.1, Supplier has
forfeited its right to invoke Clause 14.1 against Assignee Subcontractor’s
present claims because neither Supplier, nor Assignee Bank has invoked
this ground in their responses to Assignee Subcontractor’s petition for
attachment to the City Court of Helsinki. These arbitral proceedings are
a direct continuation of the attachment matter. Consequently, Supplier and
Assignee Bank should already in the proceedings before the City Court
have invoked Clause 14.1. Since they did not raise this objection until later,
as part of the arbitral proceedings, Supplier and Assignee Bank have lost
their right to rely on Clause 14.1.
(e) Procedural time limit. Pursuant to Chapter 7 Sect. 6 of the Finnish
Procedural Code, the main hearing relating to a precautionary measure
shall be initiated within one month from the issuance of a final order in
a precautionary matter. This procedural time limit did not leave Assignee
Subcontractor time to require the establishment of a parity committee. An
obligation for Assignee Subcontractor to refer the dispute to a parity com¬
mittee would cause irreparable losses to Assignee Subcontractor since it
could mean that the attachment order against Assignee Bank and Supplier
were annulled. Considering Supplier’s bankruptcy, the annulment of the
attachment order could endanger Assignee Subcontractor’s possibilities to
reclaim the money.
(f) Process economy. The establishment of a parity committee would also
postpone the arbitral proceedings and hence be contrary to the principle
of process economy.”

b. Assignee Bank
[24] “Assignee Bank has responded:
(a) Interpretation of the arbitration clause. Clause 14.1 of the Subcontract

obligates the parties to present their claims to a parity commission before
requiring arbitration. Assignee Subcontractor’s interpretation of the clause
would mean that no effect was given to the parity committee requirement.
It is a well-established rule of contract law that an agreement is to be
construed in a way that gives effect to its provisions. The lack of time limits
does not per se invalidate the requirement to refer the dispute to a parity
committee but should instead be interpreted as meaning that a reasonable
time should be given for the parity committee proceedings.
(b) Forfeiture of Supplier’s and Assignee Bank’s right to invoke Clause 14.1
against Assignee Subcontractor due to prior failure by Supplier and Assign¬
ee Bank to require establishment of a parity commission. Neither Assignee
Bank nor Supplier has failed any obligation to require the establishment of a
parity committee since they have never been obligated to initiate any such
procedure. First, the presentation of disputes to the parity committee is an
obligation that is only directed towards the party who wishes to institute
arbitral proceedings. Neither Supplier nor Assignee Bank has initiated such
proceedings. As regards Supplier’s claim for payment under the Guarantee,
Supplier was not under any obligation to request the establishment of a
parity committee prior to making a claim under the Guarantee. The
Guarantee is an on first demand guarantee that is independent of the
main agreement. Finally, Assignee Bank is not at all bound by the arbitra¬
tion clause in question.
(c) The circumstances of the case. Negotiations are only a first step of the
dispute-solving mechanism of the Subcontract. The duty to initiate a parity
committee procedure is a separate requirement which is not satisfied by
conducting negotiations.
(d) Forfeiture of the right to invoke Clause 14.1 on procedural grounds.
According to Assignee Bank, what Assignee Subcontractor has invoked
in this respect is without merit and unfounded. The fact that Assignee
Bank has not invoked Clause 14 of the Subcontract against'Assignee Sub¬
contractor’s application for precautionary measure does not bar Assignee
Bank from invoking the clause against Assignee Subcontractor in these
arbitral proceedings. Clause 14 of the Subcontract does not apply to pro¬
ceedings for precautionary measures. In the context of a precautionary
measure it is irrelevant what the parties have agreed with regard to the
settlement of disputes.

F
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3
r CASE NO. 13085, 2005 ARBITRAL AWARDS
c
ft: (e) Procedural time limit. Assignee Subcontractor’s argument in this respect is
in Assignee Bank’s opinion faulty and unfounded. First, Assignee Subcon¬
?£ tractor could have requested the appointment of a parity commission
already at the time it made its petition for a precautionary measure. This
I would have allowed Assignee Subcontractor to commence arbitral pro¬
! ceedings within the time limit set out in Sect. 6 of Chapter 7 of the Finnish
Code of Judicial Procedure. The establishment of a parity commission
would not have had any negative effect on the interim attachment orders
granted to Assignee Subcontractor. Second, since Assignee Subcontractor
has presented almost identical claims against Assignee Bank in court of law
> ■
ft proceedings, Assignee Subcontractor can attend to its legal interests in

; those court proceedings and consequently it was not necessary for Assignee
Subcontractor to initiate arbitration proceedings.
(f) Process economy. The principle of process economy cannot be invoked in
:
order to circumvent Clause 14.1 of the Subcontract. No principle of process
economy overrides an express agreement between the parties.”
c. Supplier
[25] “Supplier has in its response to the request for arbitration submitted that
Assignee Subcontractor’s request for arbitration is premature for the following
reasons: According to Clause 14.1 of the Customer Agreement, disputes should
be settled by means of negotiations, and, failing such settlement within a certain
period of time, by a parity commission. This clause in the Customer Agreement
has not been amended by the Subcontract and is therefore applicable between
Assignee Subcontractor and Supplier. Supplier claims that Assignee
Subcontractor has not made any efforts whatsoever to comply with Clause 14.1
of the Customer Agreement and therefore Assignee Subcontractor is not entitled
to seek recourse to arbitration and the request for Arbitration is premature.”
2. Decision
a. The arbitration clause and the circumstances of the case
[26] “The parties agree that Clause 14.1 of the Customer Agreement applies
also to the Subcontract. According to Clause 14.1 of the Customer Agreement,
‘All the disputes that may arise under the present Contract should be settled
by means of negotiations. If such a settlement will become impossible and
the Sides would not be able to settle the disputes within 30 days, then the
disputes are to be presented for settlement to a parity commission which

’
will consist of 4 (four) members, 2 (two) members from each Side. The
parity commission is appointed within 10 days from the date of written
inquiry for that from one of the Sides.’
It is further clear from the facts presented in this case that Assignee
Subcontractor has not required the appointment of a parity commission to settle
the dispute. The question is then whether or not the requirement that disputes
are to be presented to a parity commission poses an unconditional bar to arbi¬
tration proceedings until it has been met.
[27] “Based on the fundamental principle of party autonomy in contractual
relationships, an arbitration agreement must unambiguously refer disputes to
arbitration. Otherwise the arbitrator does not have jurisdiction. In support of its
view that the duty to refer the dispute to a parity commission is not an absolute
requirement, Assignee Subcontractor has invoked that Clause 14.2 of the
Subcontract as opposed to Clause 14.2 of the Customer Agreement is not suf¬
ficiently precise as to the conditions for when a party has fulfilled its duty to
refer the dispute to the parity commission. The clause does not for example limit
the time for the commission to complete its work.
[28] “It could be argued that where the parties have expressed only in very
general terms an ambition to solve any dispute through negotiations before
referring the dispute to arbitral proceedings without stating what is required
in order to fulfil that duty, the requirement to negotiate could be given a limited
scope or even be seen as a nonbinding expression of an intention to solve dis¬
putes amicably rather than a binding bar to arbitration.
[29] “In the dispute now at hand, the arbitration clause first provides for a very
general duty to negotiate followed by a more detailed obligation to refer the
dispute to a parity commission. Had the clause only contained the general state¬
ment that disputes ‘should be settled by means of negotiations’, this could pos¬
sibly be construed as a non-binding recommendation to the parties. This
interpretation is however contradicted by the subsequent requirement that if
a settlement is not possible, the dispute is to be presented to a parity commission.
The exact composition of that commission is provided for in the clause (i.e., four
members, two from each Side) and it is also laid down that a request for the
establishment of the parity commission is to be made in writing.
[30] “Although it is not clear how much time must be given to the work of the
parity commission before arbitral proceedings may be initiated, some guidance is
given by the wording that the commission is to be appointed within ten days of
written inquiry. Reliance on this lime limit however presupposes that the party
that wishes to initiate proceedings has at least submitted a request for the appoint¬
ment of such a commission. In this case Assignee Subcontractor has not claimed to
have submitted a formal request for the establishment of a parity commission.

• .......
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[31] “The construction of the parity commission mechanism in the arbi¬
tration clause is to some extent incomplete, but in the view of the Sole
Arbitrator it is not so ambiguous that it could be completely disregarded
by the parties. Although the time limits for the work of a parity commission
once appointed is left open, the arbitration clause must at least be given the
minimum content that a party wishing to initiate proceedings is obligated to
present its counterparty with a formal request for the appointment of a parity
commission.
[32] “In the Sole Arbitrator’s view, the inclusion of a parity commission in
4- the dispute-solving mechanism of the Subcontract appears to be an essential
feature of what the parties have agreed on to solve their disputes. This view is
>ÿ
further strengthened by the fact that both Supplier and Assignee
Subcontractor are large commercial enterprises who must have been familiar
with these kinds of multi-tier mechanisms for dispute resolutions, which are
rather common in construction contracts and similar contracts. A multi¬
tiered mechanism is also an important feature in many types of ADR rules
and alternative methods for dispute resolutions. Multi-tiered dispute reso¬
lution clauses are for example part of the FIDIC Conditions of Contracts for
works of Civil Engineering Construction and are also to be found in some of
the optional ICC ADR clauses (Cf. Dyalá Jimenez Figueres, ‘Multi-Tiered
Dispute Resolution Clauses’, ICC Bulletin Vol. 14/No. 1-2003). There are
many good reasons for having such multi-tier mechanisms in construction
contracts and other contracts in spite of the potential weakness of a two-stage
procedure and the parties must have found that there were nevertheless
advantages in using the multi-tier mechanism.
[33] “The Sole Arbitrator understands Assignee Subcontractor’s concerns that
referral of the dispute to a parity commission could at this stage be costly, cause
delay and might not lead to the desired result. Nevertheless, if the Sole
Arbitrator for these reasons would disregard the conditions for arbitration
that are laid down in the Subcontract, this would in the Sole Arbitrator’s
view be a highly questionable extension of the Sole Arbitrator’s mandate.
Furthermore, it should be noted that alternative methods for dispute resolution
in general can provide valuable means to solve disputes in a cost efficient and
time-saving manner. Their efficiency would however risk being hampered if the
pre-arbitral requirements that the contracting parties have agreed upon could
unilaterally be set aside by one of the parties.”
b. Process economy
[34] “The above reasoning also applies to Assignee Subcontractor’s argument

on process economy. It might be that it would have been more cost efficient to

sidestep the requirement of the establishment of a parity commission and refer

the dispute to arbitration directly. However, the cost aspect of the chosen pro¬
cedure is typically something that the parties must be assumed to have consid¬
ered when they agreed on the arbitration clause. Arguments of process economy
cannot justify a deviation from what the parties have agreed upon with respect to
dispute resolutions, unless of course the parties agree to solve their disputes in
another way than initially agreed.
[35] “The Sole Arbitrator has also noted that according to the expert opinion
presented by Assignee Bank, Assignee Subcontractor’s attachment has lost its
importance as a result of Supplier’s bankruptcy since under Finnish law an
attachment order does not create any priority to the assets in question nor
does it prevent competing creditors from having the assets declared as executed.
Consequently it appears that Assignee Subcontractor’s claims in these arbitra¬
tion proceedings, if successful, would only result in a claim against Supplier’s
bankruptcy estate without priority.”
c Forfeiture of the right to invoke Clause 14.1 on procedural grounds
[36] “Assignee Subcontractor has further submitted that Supplier and

Assignee Bank have forfeited their right to invoke Clause 14.1 of the
Customer Agreement against Assignee Subcontractor because they have not
invoked that ground in their response to Assignee Subcontractor’s petition
for attachment to the City Court of Helsinki. This arbitration is however a
separate procedure and consequently, it is in these procedures that objections
relating to Clause 14.1 should be raised and have been raised. The Sole
Arbitrator therefore does not find that either Supplier or Assignee Bank has
forfeited its right to invoke the arbitration clause in this arbitration.”
d. Supplier and Assignee Bank’s failure to request the establishment

of a parity commission
[37] “Assignee Subcontractor has also argued that Supplier and Assignee Bank
have lost their right to invoke Clause 14.1 of the Customer Agreement against
Assignee Subcontractor because neither Supplier nor Assignee Bank referred the
claims for which Supplier required payment by the Bank under the Guarantee to
a parity committee in accordance with Clause 14.1, before Supplier presented its
claims for breach of contract and the request for payment under the Guarantee.
The Sole Arbitrator does not share this view. The obligation in the Customer
Agreement to comply with certain conditions before initiating arbitration is an
obligation directed at the party that wishes to initiate arbitration.”

« ¡V

&
e. Procedural time limit
I [38] “The fact that a party to a dispute takes action for precautionary measures
does not relieve that party from the agreed requirements for dispute resolution.
If the contrary view was accepted, it would indeed be difficult to uphold multi¬
tiered arbitration clauses. Further, as stated above, when two large commercial
parties like Assignee Subcontractor and Supplier have agreed to subject their
rights of arbitration to a prior procedure, it must be assumed that they have
taken the benefits and risks of that procedure into careful consideration, also
with respect to future needs for precautionary measures.
[39] “Furthermore, in this case Assignee Subcontractor has not even presented
a request for establishment of a parity commission despite the fact that the one-
month time period for initiating proceedings provided for by Chapter 7, Sect. 6
of the Finnish Procedural Code in relation to precautionary measures would
seem to have given room both for a request for the establishment of a parity
commission and for a subsequent request for arbitration. The Sole Arbitrator
has also noted that the Customer Agreement stipulates in Sect. 14.2 that the
parties may initiate arbitration 'if the parity commission is not able to settle the
dispute within 15 days from the moment of its organisation or none of the Sides
is able to appoint their representatives to the parity commission within 10 days’.
The time limit for the parity commission’s work under that agreement was
consequently very short. Lacking an express provision, it would seem natural
to apply a similar time limit to the multi-tiered arbitration clause in the
Subcontract. If the Subcontract was construed this way, this would mean that
there was room for complying with all the pre-arbitral requirements within the
one month-period stated in Chapter 7, Sect. 6 of the Finnish Procedural Code.
[40] “Considering what has been referred to above, the Sole Arbitrator finds
that Assignee Subcontractor cannot rely on the argument of procedural time
limits to avoid complying with the agreed mechanism for dispute resolution.”
f. Conclusions
[41] “For the above reasons the Sole Arbitrator concludes that Assignee
Subcontractor is presently not entitled to initiate arbitral proceedings against
Supplier under the Subcontract and that Assignee Subcontractor’s request for
arbitration was premature. Assignee Subcontractor is obviously free to initiate
new arbitration proceedings alter having fulfilled the contractual requirements
of the Subcontract in order to start arbitration, including a request for the
appointment of a parity commission. Assignee Subcontractor’s request for arbi¬
tration against Supplier in the proceedings now at hand shall however be dis¬
missed without prejudice.”

III. COSTS
[42] “First it should be noted that An. 31 of the ICC Rules grants wide dis¬
cretion with regard to the allocation of and decision on costs.
[43] “Assignee Subcontractor and Assignee Bank have sought recovery of
their legal costs. .. . Assignee Subcontractor has also sought recovery from
Supplier and Assignee Bank of the costs of the arbitration, which it has paid
as an advance on costs to the ICC. Further, regardless of the outcome of the case,
Assignee Subcontractor has requested that the Sole Arbitrator should order
Assignee Bank to compensate Assignee Subcontractor for its costs related to
one of Assignee Subcontractor’s briefs. Both Assignee Subcontractor and
Assignee Bank have claimed penalty interest on their costs, pursuant to Sect.
4(1) of the Finnish Interest Act, beginning one month from rendering the award.
Supplier has not sought recovery of any costs. Against Assignee Bank’s claims
for costs Assignee Subcontractor has invoked that Assignee Bank is not entitled
to compensation for VAT and that Assignee Bank’s cost claims should be cor¬
respondingly reduced. Assignee Bank has contested Assignee Subcontractor’s
claims for costs and stated that since Assignee Bank is a bank it can not deduct
VAT and the cost claims of Assignee Bank should therefore correctly include
VAT.
[44] “In view of the outcome, Assignee Subcontractor shall bear the costs of
the arbitration and the legal costs of Assignee Bank. The recoverable costs
should include VAT since Assignee Bank, being a bank, can not deduct VAT.
The Sole Arbitrator finds that the issues raised by Assignee Bank in the brief at
issue, which gave rise to the need for a third round of submissions, were justified.
The Sole Arbitrator therefore does not consider Assignee Subcontractor to be
entitled to compensation from Assignee Bank for its response in Assignee
Subcontractor’s brief.”
IV. AWARD
[45] “(1) The Sole Arbitrator dismisses Assignee Subcontractor’s request for
arbitration against Assignee Bank;
(2) The Sole Arbitrator dismisses Assignee Subcontractor’s request for arbi¬
tration against Supplier, without prejudice to Assignee Subcontractor’s right to
bring any action before an arbitral tribunal in accordance with the dispute res¬
olution procedure contained in the Subcontract;
(3) Assignee Subcontractor is ordered to pay to Assignee Bank the sum
of . . . including VAT, representing legal fees and compensation for expenses,
plus penalty interest on that amount pursuant to Sect. 4(1) of the Finnish Interest
Act, beginning one month from rendering the award and until payment is made;
(4) The cost of the arbitration shall be borne by Assignee Subcontractor.”

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I
Parties: Claimant: Buyer
Respondent: Seller
Place of Paris, France

arbitration:

;
Subject matters: - letter of credit (transferable and confirmed)
- formation of contract
- interpretation of contract
- lex mercatoria
- general principles of international commercial law
Facts
Seller made known to Buyer that a certain product was available with a supplier
in Country A. Seller and Buyer discussed the technical details of the sale and
carriage until Seller sent a fax to Buyer confirming the sale of a quantity of the
product at a certain price. Payment was to be by irrevocable, transferable and
confirmed letter of credit. That same day Seller asked Buyer to send the format
of the proposed letter of credit for its bank’s approval. Buyer replied also on the
same day that it could not make the letter of credit transferable because it was
already getting a transferable letter of credit from its customers; also, its bank -
Bank G - would not allow a confirmation on the letter of credit because it would
not allow the necessary documents to be presented at another bank.
Three days later, Seller sent Buyer a draft contract, saying “If any amendment
should be made, please let us know.” By an e-mail of the following day (the first
e-mail), Buyer proposed a large number of changes; it said in respect of payment
that the letter of credit would be irrevocable and might be transferable, but that
it seriously doubted whether it could be confirmed because this would require
the necessary documents to be presented at the confirming bank’s counters and
Bank G would “never let the documents get out of their hands - period”. Buyer
also proposed English law as the applicable law and arbitration in London.
Four days later, Seller replied that “today we will be sending you the contract.
We are just waiting to receive ... information regarding the Port ... in order to
avoid any trouble when loading and shipping.” In fact, Seller only sent a contract
one week later. The contract dealt with some of the points Buyer had raised in its

first e-mail, but riot with the letter of credit issue; it proposed ICC arbitration
instead of English law and London arbitration. Later that day the seller sent a
further revised draft contract. In this version, clause 12 (Terms of Payment) read
in part:
“At 30 days from B/L date by an irrevocable and confirmed documentary

Letter of Credit opened by Buyer at Bank G in favour of Seller against
presentation, at the counters of Buyer’s bank, of the following docu¬
ments. . . . Buyer to forward an irrevocable transferrable confirmed
documentary Letter of Credit in favour of Seller latest five days prior to
loading, and in a format acceptable to Seller, to Seller’s nominated bank. . . .
Prior vessel’s commencement of loading such Letter of Credit to be opened
by a first class international bank, acceptable to Seller.”
Clause 18 provided that the contract would come into force when signed and
stamped by both parties and when the letter of credit was opened by Buyer.
Clause 15 provided for ICC arbitration of disputes.
In an e-mail of the following day (the second e-mail), Buyer’s representative
pointed out that his comments in the first e-mail as to the transferability and
confirmation of the letter of credit were still valid. He continued: “We shall try
to comply as much as possible, but everything will depend also on what the two
banks will have to say at the end of the day.”
Seller replied on the same day by an e-mail reading: “Attached contract with
amendments. If something not in order, please tell me in return.” The e-mail set
out details Buyer had requested of Bank B, Seller’s bank, and concluded: “L/C
Irrevocable, Confirmed and Transferible [sic]; Beneficiary Seller; Terms and
Conditions of the L/C according to the contract herein”. In the accompanying
draft contract, clauses 12 and 18 remained as set out above.
There was no further discussion of the letter of credit issue. The parties cor¬
responded as to whether the ship nominated by Buyer could be accommodated
at the loading berth, and on other practical issues. Eventually, on a Friday Buyer
sent Seller a copy of the letter of credit issued by Bank G. On the following
Monday, Seller replied by an e-mail asking Buyer to amend the letter of credit to
make it transferable. Buyer reiterated that Bank G would not make the letter of
credit transferable because that would mean making it payable at the counters of
Bank B.
Buyer was eventually able to arrange for the letter of credit to be transferable
(though not confirmed). Seller sent an e-mail to Buyer thanking it for the
amendment and saying that Bank B asked to instruct Bank G “to add the
following points: (1) The transferer bank is Bank B; (2) The credit is utilizable
byBankB;(3) Documents to be presented at the counters ofBankB . . .’’.Buyer

•---ÿ7 1-7 7?ÿ: v.v ■,-■ ■-■■
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v
f replied that "as already explained to you from the beginning, our bankers are not
prepared to have the L/C payable away from their counters and the documents
not presented to the counters of Bank G . . . because we ourselves have to pre¬
sent the documents under the respective Letters of Credit from our custo mers.
There is no way that the whole transaction works out for us if the L/C is not
payable at the counters of our bank.”
On the following morning, Seller forwarded another request of Bank B that
was irrelevant to the present dispute; nothing was said of transferability. On the
same day, Buyer gave Seller notice that the nominated ship had berthed at port
and was ready to commence loading, but that the supplier was refusing to load
because Seller had failed to open a letter of credit in its favor. The cargo was
eventually loaded onto the vessel one week later than the agreed date. Buyer
commenced ICC arbitration against Seller, seeking demurrage and expenses as a
consequence of the delay in loading. The parties jointly appointed a sole
arbitrator.
The Sole Arbitrator held that Seller was bound by the contract and that it was
liable for the delay in loading. He noted at the outset that the parties had made
no choice as to the law applicable to their contract (Buyer’s suggestion that
English law should apply was expressly rejected by Seller) and that therefore
he had discretion to determine what law was appropriate. He dismissed Buyer’s
submission that he should apply lex mercatoria, saying that he had “reservations
as to the real existence of anything that can be described as lex mercatoria”,
although he was aware of debate on this topic. The Arbitrator saw no logical
reason to apply English law, as the dispute had no contact with England other
than the use of the English language, and decided to apply general principles of
international commercial law. He added that, “not surprisingly” those princi¬
ples led to the same result he would have reached by applying “English law
principles or those of the alleged lex mercatoria or, indeed, those of any other
system of law of which I am aware, or any principle of common sense”.
The Sole Arbitrator examined the exchange of correspondence between the
parties to ascertain when the contract was concluded and what its terms were.
He concluded that the contract came into existence when Seller was satisfied - or
represented that it was satisfied - with the format of the letter of credit: at the
latest, once the letter of credit was made transferable. Buyer had made it clear
from the beginning that it could not make the letter of credit transferable or
confirmed, and that the question was non-negotiable because it was out of its
control. As a consequence, neither transferability nor confirmation were a con¬
tractual obligation (though transferability could in the end be arranged). Seller
could not argue that the contract only came into existence when his requests in
this respect were satisfied.

The Arbitrator held that the provision in clause 12 that the letter of credit
should be “in a format acceptable to Seller" referred to the essential form of the
letter of credit, not to matters of detail. Also, after Buyer rejected Seller’s last
request that the letter of credit be made transferable, Seller did not pursue the
question further, effectively representing to Buyer that the letter of credit as it
then stood was satisfactory.
The Sole Arbitrator noted the discrepancy between the first part of clause 12,
providing for a letter of credit payable at Bank G’s counter, and the second part
of the same clause, providing for an “irrevocable transferable confirmed . . . let¬
ter of credit”. The Arbitrator noted that the contract contained “a number of
infelicities” as is frequently the case with contracts drafted by traders rather than
lawyers, and by traders whose first language is not English. It was therefore
necessary to read the contract as a whole with a view to ascertaining the parties’
true intentions. He held that it appeared from the correspondence between the
parties that although the original version of clause 12 referred to “an irrevocable
and confirmed documentary letter of credit”, by the time the parties reached an
agreement on the day of the second e-mail those words had been amended to
make the letter of credit payable at Bank G’s counters. Hence, the second part of
clause 12 was ineffective to the extent that it contradicted the first part of that
clause, which was consistent with Buyer’s qualification.
The Sole Arbitrator then dealt with damages. He directed Seller to pay to
Buyer the sum that Buyer had paid for delay to the shipowners under the
charterparty. This sum was lower than demurrage, because Buyer and the ship¬
owners had agreed to deduct the time that had been saved when unloading the
cargo at the discharge port from the loading-port demurrage.
The Sole Arbitrator denied Buyer’s claim for expenses. Buyer claimed reim¬
bursement for trips its representatives made to the loading port and to the seat of
Seller to assist with Seller’s letter of credit problems with the original supplier.
The Arbitrator concluded that in the first case the trip had been Buyer’s choice
and did not arise out of necessity, and that in the second case the trip was not
related to the delay in loading. Seller’s problems with its letter of credit arrange¬
ments with the original supplier were undoubtedly the reason the loading was
delayed, but that did not mean, in the Arbitrator’s opinion, that Buyer’s
expenses in this respect were caused by the delay. Rather, Buyer took the
initiative to send its representatives, without being asked to do so, “no doubt
because it wanted to find out what was going on so as best to protect its
commercial interests”. Had it been shown that the representatives’ presence
shortened the delay in loading, the Arbitrator added that he “might have
been open to the suggestion that the expenses were incurred to mitigate
Buyer’s claim”. However, this was not the case.

CLJ :-saÿa:s5s-a:5:y Â7v7Â:i?r ..
The Sole Arbitrator finally held that Seller should bear all the costs of the
arbitration and reimburse only 85 percent of Buyer’s legal costs, because
although Seller lost entirely on liability, on which the main battle between
the parties was focused, Buyer was not entirely successful on the quantum
issue. Also, the Arbitrator awarded a lower sum than requested as compensation
for the legal fees incurred by Buyer for one of its two sets of lawyers, finding that
the time spent by Buyer’s non-English lawyers on the case was in some instances
excessive and there probably had been duplication of work.
■i Excerpt
I. CONCLUSION OF THE CONTRACT
[1] "According to the documents before me, the parties’ dealings leading to
this contract started when Seller made known to Buyer the availability of the
products in question, to be loaded in Country A. Over the following weeks they
discussed technical details (the cargos’ specifications, the loading berth, etc.)
until Seller sent a fax to Buyer purporting to confirm the sale of a quantity of
the product at a certain price, payment by ‘irrevocable transferable and con¬
firmed L/C payable at 30 days from B/L date’, with ‘all other additional details
to be agreed’. Plainly there was no binding contract at that stage and I did not
understand the contrary to be argued.
[2] “That same day Seller asked Buyer to send the format of the proposed
letter of credit for Seller’s bank’s approval. Buyer, in a fax of the same day, said
‘Concerning payment, as we are already getting a transferable L/C from our
customers, our L/C cannot be further transferable. Also our bank does not
accept to allow a confirmation on the L/C because otherwise they would
have to give away documents’ negotiations to the confirming bank. L/C will
be strictly available at the counters of Bank G.’
[3] “Three days later, Seller sent Buyer a draft contract, saying ‘If any amend¬
ment should be made, please let us know.’ Buyer proposed a large number of
changes in an e-mail of the following day (the first e-mail). As to payment, Buyer
said ‘L/C will be irrevocable. Can be transferable. Doubt seriously whether it
can be confirmed. Reason is that if Bank G allows your bank to add their
confirmation, the confirming bank will also need documents to be presented
to them. Bank G will never let the documents get out of their hands - period.
(Off the record: if you definitely need a confirmation on the L/C, you may ask
your bank - if they accept it - to add a ‘silent confirmation’, i.e., without Bank G
knowing about it, while the documents’ negotiation will still take place in our
Í
I
I
bank).’ In the same message Buyer proposed English law and arbitration in
London.
[4] “In response, four days later, Seller said ‘. . . today we will be sending you
the contract. We are just waiting to receive .. . information regarding the
Port ... in order to avoid any trouble when loading and shipping.’ In fact
Seller did not send a new draft contract on the promised date: it was only
one week later that it did respond in substance and then it dealt with only
three of the many points Buyer had raised. Nothing was said about the letter
of credit. Seller did propose, instead of English law and London arbitration
under the rubric ‘Law and Jurisdiction’, ‘Chamber of Arbitration of the
International Chamber of Commerce in Paris’.
[5] “However, following a chaser from Buyer, later that day Seller sent a
further revised draft contract. Clause 12, headed ‘Terms of Payment’, provided
in part
‘At 30 days from B/L date by an irrevocable and confirmed documentary

letter of credit opened by Buyer at Bank G in favour of seller against pre¬
sentation, at the counters of buyer’s bank, of the following documents:
(There followed a list of five usual documents.) Buyer to forward an irrev¬
ocable transferrable confirmed documentary letter of credit in favour of
seller latest 5 days prior to loading, and in a format acceptable to seller, to
seller’s nominated bank . .. prior vessel’s commencement of loading such
letter of credit to be opened by a first class international bank, acceptable to
seller.’
Clause 15, the Law and Jurisdiction clause, now read:
‘The parties hereby agree to submit all disputes to the [sic] regarding this
contract to the Chamber of Arbitration of the International Chamber of
Commerce in Paris.
Clause 18, entitled ‘Come into Force’, read:
‘This contract will come into force in one of the following dates:
- When the contract is signed and stamped by both parties;
- When the L/C is opened by buyer.’
[6] “Commenting on this draft the following day, Buyer said, inter alia:
‘The L/C paragraph (12) we have corrected the word “quantity” and we
have left the rest of text as it is. However, our comments of our original e-

s
mail message are still valid in connection to the “ transferability” and “ con¬
firmation ” of L/C. We shall try to comply as much as possible, but every¬
thing will depend also on what the two banks will have to say at the end of
the day.’ (The second e-mail) (Emphasis added. The message to which
reference is made in the first line is the first e-mail referred to above).
After dealing with two other points, the author concluded: T would
assume that contract is now in order. The extremely high transportation
costs still remains however. Let us proceed immediately as such and we
shall keep you posted with whatever ship we are able to locate, if we can.’
%
[7] “In answer to that, the same day Seller sent a further e-mail to Buyer reading,
so far as material: ‘Attached contract with amendments. If something not in order,
please tell me in return.’ That message also set out details Buyer had requested of
Seller’s bank, and after those details concluded with the words ‘L/C Irrevocable,
Confirmed and Transferible [sic]; Beneficiary Seller; Terms and Conditions of the
L/C according to the contract herein’. In the accompanying draft, clauses 12 and
18 remained as in the previous draft, namely as set out above.
[8] “There was thereafter, at least until much later, no further discussion on the
question of transferability and confirmation of the letter of credit. On the
contrary, the parties behaved as if any questions surrounding those matters
had been resolved. Indeed it was accepted that by this time they had reached
an agreement. I consider the terms of that shortly.”
II. POST- CONTRACT DEVELOPMENTS
[9] “The parties’ subsequent exchanges were first about the question whether
the ship that Buyer had identified and nominated could be accommodated at the
loading berth, then about liability for tug charges, thirdly about the ship’s
capacity to provide electricity for shore pumps and then the confirmation of
the fixture of the ship X which in fact eventually loaded this cargo.
[10] "That evening (a Friday), Buyer sent Seller a copy of the letter of credit it
had procured to be issued by Bank G. On the following Monday, Seller sent an
e-mail saying ‘After receiving your L/C, I wonder whether there is any
Documentary Instructions to follow beside the L/C requirements. On the
other hand I kindly ask you to amend Clause 40 A of the L/C including
Transferable.’
[11] "Buyer replied that there were no further instructions as everything was
included in the letter of credit, and continued:
‘Concerning L/C, please note that it is somehow difficult for our bank to
make the L/C “transferable”, because as we have explained to you

repeatedly until now, according to the UCP rules, in order for a bank to
transfer an L/C (like in our case Bank B), the L/C must be payable at the
counters of such bank (Bank B). However, it is not possible to make L/C
payable at the counters of Bank B, as you know well and as per our agree¬
ment. As such, a ‘'transferable” L/C would not make much sense for any¬
body.’
[12] “As it happens Buyer was able to arrange for the letter of credit to be
amended so as to make it transferable, and on the following day Seller sent an e-
mail to Buyer reading: ‘Many thanks for the amendment of the L/C now to be
transferable. Our bankers . .. request you to instruct your bank to add the
following points: (1) The transferer bank is Bank B; (2) The credit is utilizable
by Bank B; (3) Documents to be presented at the counters of Bank B . . . ’ to
which Buyer responded ‘as already explained to you from the beginning, our
bankers are not prepared to have the L/C payable away from their counters and
the documents not presented to the counters of Bank G . .. because we our¬
selves have to present the documents under the respective L/C’s from our cus¬
tomers. There is no way that the whole transaction works out for us if the L/C is
not payable at the counters of our bank.’
[13] “Seller’s response to that, the following morning, was to say that they had
talked to their bankers who had asked for an amendment to extend the validity
and presentation of documents for 15 days. They said nothing further on the
matter they had raised the previous day. That same day, Buyer gave Seller notice
that the ship had berthed at port and was ready to commence loading, but as
Seller’s letter of credit with the supplier had not been established, the supplier
was refusing to load. Accordingly, said Buyer, Seller should immediately estab¬
lish its letter of credit and thereafter the question of an extension could be
considered.
[14] “The next morning, Seller responded by denying liability for the ‘incon¬
veniences occurred taking into account that the fixture of the vessel . . . has been
made without acceptance of the supplier. As you may realize since the inception
of your L/C and the arrival of the vessel two days later it is almost impossible to
proceed . . . due to the lack of time (only 2 days) ... So far, and hoping all these
troubles regarding the swifts and L/C amendments at the bank will be short [sic]
out this evening or tomorrow morning, we hope loading to commence eventu¬
ally tomorrow.’
[15] “Buyer vigorously repudiated that position in a fax the same day, pointing
out that it had fixed the vessel after Seller had accepted it in writing, and holding
Seller responsible. Thereafter, and over a considerable period, Buyer asked for
various amendments to be made to the letter of credit, which were all effected.
Nothing turns on those, save one argument raised by Seller in relation to the

1
question whether the letter of credit was satisfactory to it until they had all been
effected, an argument with which I deal at [[32]] below.
[16] “It is apparent from the evidence that the delays in loading ship X arose
from the fact that Seller had not promptly enough made its own financial
arrangements with the supplier. There were threats to have the ship off-berthed
unless those arrangements were quickly set up. As already mentioned, it was not
until one week after the agreed date that the ship started loading, completing
three days later. I make these observations just to complete the picture. It does
not seem to me that they affect the matter one way or another.”
III. LIABILITY
[17] “Against this background the essential questions that arise are: (i) what
did the parties’ contract provide in the relevant respects; (ii) was there a breach
or breaches of contract; (iii) if so, what were the consequences and (iv) can
recovery be made in respect of those consequences and if so, to what extent?
[18] “So far as (i) is concerned it is worth repeating that there plainly was a
contract, which was performed. The problem is to identify what it provided in
the material respects. That involves deciding when the contract came into
existence.
[19] "It was suggested in Buyer’s submissions that I should answer that
question and others arising by reference to lex mercatoria and not by reference
to English law (though it was of course said by Buyer that English law would in
any event lead to the same conclusions). The underlying justification for this
argument was that the contract did not refer to any governing law (indeed
Buyer’s suggestion that English law should apply had been expressly rejected
by Seller, and dropped), and that apart from the English language being used it
really had no connection with England.
[20] “Under Art. 17 of the [ICC] Rules, since the parties have not agreed upon
the applicable rules of law, I have power to determine and apply what rules are
appropriate.
[21] “I have reservations as to the real existence of anything that can be
described as lex mercatoria. (I am of course aware of the extremely learned
debate that has continued on this topic for the past quarter-century or more.)
On the other hand, I can see no particular reason in logic why English law
should be applied here. In my view, the right course for me to adopt is to
apply general principles of international commercial law here. And, not surpris¬
ingly, doing that leads to the same answer as I would reach if I were to apply
English law principles or those of the alleged lex mercatoria which Buyer urged
upon me or, indeed, those of any other system of law of which I am aware, or
any principle of common sense.

[22] “In deciding when the parties entered into their contract and what its
—
terms were two considerations that are inextricably intertwined in this case
I must look at the whole of the exchanges between them. The crucial question is
—
whether there was agreement when Buyer sent the message referred to [at [6]]
above (which reiterated the reservation contained in the first e-mail), or only
when Buyer failed to object further after Seller responded as mentioned [at [7]].
Seller suggested the latter because its message was, it said, ‘the last shot’ in the
relevant exchanges and Buyer’s failure to respond despite the invitation to do so
sealed the deal on its, Seller’s, terms. I see the force of that argument, especially
in the light of the wording of the e-mail itself which I set out at [[7]].
[23] “But Buyer had made its position dear in its first e-mail and again in the
message referred to [at [6]] above. That message suggested that the parties had an
agreement on the basis set out there, and that the questions which Seller was
trying to resolve there and then would have to be left to the banks to sort out -
but if they could not then Buyer was unable to acquiesce in Seller’s demands.
That position was - as it had always been - plainly a continuing one, whether
looked at in isolation previously, at that moment, or subsequently. It, and its
expression, were such that Seller could not bring an end to it simply by sending a
fresh draft contract unamended in the material respect and then relying on a
failure of Buyer to comment further. The ‘last shot’ approach is not appropriate
on the facts of this case.
[24] “To hold otherwise would, in my view, fly in the face of the parties’
manifest intentions. Buyer had made its position on the questions of transfer-
ability etc. abundantly clear throughout the negotiations. It had never retreated
from that position. It had never shown the slightest ability to do so or any hint of
a possibility that it might. On the contrary, Buyer had made it perfectly plain
that it regarded the question as non-negotiable because it was out of Buyer’s
control and thus must be left to the banks.
[25] “Seller’s ‘If something not in order . . . ’ message in the second e-mail
could not, in the light of what Buyer had been saying and had reiterated in
its message of the same date, be taken as a counteroffer. True it is that the
draft contract attached retained clause 12 in its previous form, but Buyer had
already made it clear that whilst it had not proposed specific wording to vary
clause 12, it did not agree to it, for it had to be read subject to the qualification
mentioned in the first e-mail in relation to transferability and confirmation. If
Seller had not been willing to work on that basis it should have said, in its second
e-mail, that it could not accept Buyer’s qualification and that clause 12 had to
stand as it was and be satisfied. Seller made no such point.
[26] “In Seller’s submissions it was said that ‘the reality of the situation is that
Seller was insistent upon a letter of credit that was both transferable and con¬
firmed. This was their position throughout the negotiations. Had Buyer not

7

acquiesced in this it is likely that the entire transaction would have fallen
through. Rather than risk that prospect, Buyer accepted Seller’s requirement
(even though they might have preferred not to).’ With great respect, it seems to
me that this contention precisely inverts the true situation. It was Buyer who
was insistent that the letter of credit could not be transferable and confirmed,
unless the banks agreed, and that confirmation was never going to be available;
and it was Seller who accepted that rather than lose the deal.
[27] “Much of the argument was devoted to the meaning of clause 12 of the
draft contract and in particular to the apparent conflict between the first part,
providing for a letter of credit payable at Buyer’s bank’s counter, and the second
■
which provided for an ‘irrevocable transferable confirmed . . . letter of credit’.
But it is inappropriate to look at this clause in a vacuum, as if it stood alone,
uncoloured by Buyer’s message referred to [at [6]] above and the other consis¬
tent messages. There was no signed contract. What the parties agreed to was a
contract based on Seller’s draft, but with a major qualification as already
explained. Anything in clause 12 that might be taken as contradicting that qual¬
ification must give way to it as a matter of ordinary principles of contractual
construction - whether under English law or generally.
[28] “Furthermore, there is another consideration which I have not so far
mentioned. The first draft of the contract provided by Seller had clause 12
start with ‘By an irrevocable and confirmed documentary letter of credit opened
by Buyer in favour of seller against presentation of;’. By the time the parties
reached agreement on the day of the second e-mail those words had been sub¬
stantially amended, as set out [at [5]] above so as to specify the bank and, more
importantly, to make the letter payable at that bank’s counters - a provision
wholly inconsistent with the concept of transferability and confirmation
referred to in the last part of the clause.
[29] "A strict, legalistic approach is not helpful when the interpretation of a
contract such as this is in question. This contract is typical of many contracts
negotiated between traders whose main concern is to do the deal, who are not
lawyers and who do not rely on lawyers to draft their contracts, and whose first
language is not English. I mean no disrespect when I say this; but it is a simple
fact that there are a number of infelicities in the contract: to take but one
example, the reference in the last line of clause 12 to a ‘first class international
bank’, when earlier the bank to be used has already been identified.
[30] “What is necessary is to read the contract, which in this case includes to
some extent - as already explained - the parties’ negotiations, as a whole with a
view to ascertaining the parties’ true intentions. That may mean reaching a
conclusion that there is redundancy or contradiction that must be resolved, as
I think is plainly necessary in relation to the clause 12 requirement for trans¬
ferability and confirmation. To the extent that those apparent requirements
Reprinted from the Yearbook Commereial Arbitration 339

contradict the earlier provisions in clause 12 (which are of course consistent with
Buyer’s qualification) they are ineffective.
[31] “In the result, of course, it was possible to have the letter of credit made
transferable. But it was never confirmed. Nor, in my view, did it have to be as a
matter of contractual obligation, any more than the contract required that it had
to be transferable.
[32] “Seller, in its submissions in this arbitration, argued that it came under no
obligations under the contract until all the amendments to the letter of credit
that it later requested had been effected. For this argument it of course relied
upon the words in clause 12 ‘in a format acceptable to seller’. This cannot be
right. Apart from anything else, it would mean that Seller might have postponed
its obligations more or less indefinitely simply by continuing to ask for changes
to the letter of credit. As a matter of construction of the contract I reject the
submission, since it seems to me that ‘format’ has to do with the essential form of
the letter, not matters of detail. Further, when, following its request mentioned
at [[10]] above) and Buyer’s rejection of that, Seller failed to pursue the question
further, it effectively represented to Buyer that the letter of credit as it then stood
was satisfactory. This is confirmed by the message referred to [at [14]] above,
with its reference to ‘inception of your L/C’, and the indication as to the likely
start of loading. Plainly Seller was satisfied with the format of the letter of credit
at the latest once it had been made transferable; the contract then came into force
(clause 18), and Seller’s obligation to load then arose.
[33] “Seller argued, relying once more on clause 12, that the provision of a
satisfactory letter of credit five days before the start of loading was a condition
precedent to its obligation to load, so that even if I reached the conclusion to
which I have come, it was not obliged to load before a certain date. Whilst the
provision of a satisfactory letter of credit must be a condition precedent to the
obligation to load, there is no express provision supporting Seller’s argument to
the effect that they should have five days’ grace after provision of a letter, nor in
my view is there any reason to imply a term that would have the result con¬
tended for.
[34] “What was required was that an acceptable letter of credit be opened no
later than five days before the start of loading. That does not mean that Seller’s
obligation to load did not arise for five days. It means that if Buyer was in breach
by providing a letter of credit less than five days before the start of loading and if
Seller could show that loss had thus been caused to it, for example because it had
become liable to demurrage in consequence, it would be able to mount a claim or
cross-claim for damages against Buyer.
[35] “What actually caused the delay in loading here was nothing at all to do
with any delay in providing an acceptable letter of credit under this contract: it
was all because of Seller’s own difficulties in setting up a letter of credit that

. I‘:' -2CÜ&:-
?
would satisfy its supplier. Indeed, it was as a result of the supplier’s demands that
Seller had to ask Buyer to make so many amendments to the letter of credit.
However that is not a matter for which Buyer can be held responsible in any
way. Seller’s performance under this contract was not made dependent on the
position under their supply contract with the shippers, either expressly or by
any kind of implication. Although Seller tried to argue that Buyer knew all along
that it, Seller, was wholly dependent upon its arrangements with Buyer in order
to arrange matters with the shippers, there was no evidence to support this
contention, let alone any argument that Buyer’s contractual obligations were,
or legally should be, in some way affected by any such knowledge.
[36] “Accordingly I conclude that Seller became bound to load under this
contract once the letter of credit had been made transferable at the very latest
and is liable for damages to the extent that it was in breach of its obligation.”
(....)
IV. QUANTUM
[37] “Against this background I turn to deal with the quantum of Buyer’s
claim. Originally Buyer claimed demurrage for which it contended it was liable
under the charterparty. In the course of submissions in the arbitration Buyer
sought to argue that it had an entitlement to demurrage under the contract itself,
regardless of the situation under the charter. It took that position, as it turned
out once further disclosure of documents had been given, because it appeared to
have negotiated a settlement of the shipowners’ claim under the charter at a
considerably lower sum.
[38] “I reject the suggestion that Buyer can maintain some claim independent
of its charterparty liability. Clause 8 of the contract form provided for laytime
and concluded ‘In case of delay the party responsible of this delay will support
the extra expenses’. In my view that plainly means that it is only some expense,
i.e., a sum or sums that the claiming party has disbursed, that can be recovered.
Thus it is necessary to look at the position under the charter.
[39] “The owners of the ship would have claimed a certain sum if loading port
demurrage alone had been in issue, but in fact only sought a lower sum after
giving credit for time saved at the discharging port, it having been agreed under
the charter that laytime was reversible. However, negotiations took place
between the owners and Buyer which appeared to lead to a settlement pursuant
to which Buyer was to pay only an even lower sum, though there was a
continuing dispute as to whether commission could be deducted from this.
Buyer paid the shipowner two instalments pursuant to this arrangement [adding
up to a lower sum]. The owners said that they had not agreed only to accept that
sum and asked for a further small amount as a contribution to commission.
Reprinted from the Yearbook Commercial Arbifration 341

[40] “Buyer did not adduce evidence to show how this argument terminated
and, indeed, in support of its argument that the full amount should be claimable
contended that the matter had not been settled with the owners of the ship.
However, it seems to me that, since the owners’ request for a contribution to
commission was made early, and having regard to the small amount involved,
the inherent probabilities are that it has meanwhile been settled. At all events,
since Buyer has chosen not to prove what happened after the shipowner’s
request, I think it right for me to assume against Buyer that its ultimate liability
to the owners is limited to the total paid.
[41] “I have considered whether it would be unjust to ignore the fact that, in
reaching this figure, credit had already been given against the owners’ notional
claim for loading port demurrage in effect for a certain sum because of the saving
of time in discharging. However, I have concluded that it would be unjust to
Seller if I were to award more than the sum paid, for the simple reason that if
there had been no loading port demurrage earned, Buyer would not have been
able to claim anything from the owners of the ship in respect of the time saved in
discharging: whilst laytime was reversible, there was no dispatch provision in the
charter. It follows that the only expense the owners have suffered is the sum
actually paid to the owners of the ship.
[42] “That leaves the claim for expenses. These were expenses said to have
been incurred in (i) sending a representative of Buyer to the loading port, and
(ii) sending two representatives of Buyer to the seat of Seller to assist with letter
of credit problems being experienced by Seller in relation to their purchase
contract.
[43] “As to (i), the representative in question made two trips. Buyer only
claimed, very fairly, in respect of the second of those. But the first trip was
made - and it was plainly Buyer’s intention that it should be made - in any
event, i.e., regardless of any question of delay in loading. That indicates to me
that the probabilities are that the second trip was made not because of any such
delays, but because Buyer simply wanted a representative present during load¬
ing. It was clearly not necessary for this to happen. As Buyer itself contended,
the loading terminal could not accept instructions from Buyer’s representative,
given that there was no contractual nexus between Buyer and the terminal.
Indeed, Seller did not have a representative on the spot, and yet matters pro¬
ceeded appropriately, so far as can be seen and subject to the delay. There was
nothing to indicate precisely what the gentleman in question was said to have
done as a result of the delayed loading. Given that it seems clear that he would
have been at the loading port in any event, with or without delay, purely as a
matter of Buyer’s choice but not out of necessity, I do not see how these
expenses can be said to have resulted from delay in loading and thus be recov¬
erable under clause 8.

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[44] "As to (ii), the expenses of sending two representatives to the seat of
Seller, I am bound to say again that I do not see how these can be said to
flow from delay in the loading. No doubt Seller was experiencing problems
with its letter of credit arrangements with the supplier, and no doubt (as I
have already said) that was the reason why the loading was delayed. But that
does not mean that Buyer’s expenses in this respect were caused by the delay.
Rather, they appear to have been incurred because Buyer took it upon itself to
send the individuals, without any request from Sellers that it should do so, no
doubt because it wanted to find out what was going on so as best to protect its
commercial interests. Further, there was no evidence to show what specifically
-•
the gentlemen in question did to assist. If it had been shown that their presence in
some way shortened the delay in loading, I might have been open to the sug¬
gestion that the expenses were incurred to mitigate Buyer’s claim. But in the
absence of anything of that sort, and given the factors I have already mentioned,
I have to conclude that these expenses too are not shown to have resulted from
"r
the delay in loading such as to be recoverable under clause 8.
[45] “In these circumstances Buyer’s claim succeeds only in sum X. I have
awarded interest, as agreed in . . . the Terms of Reference, at a rate (4.25%)
which is that normally used by LMAA [London Maritime Arbitrators
Association] arbitrators for the relevant periods, namely from the dates when
Buyer paid the two instalments of demurrage to the owners of the ship, as
referred to [at [37]] above, down to the date of payment.”
V. COSTS
[46] “Seller has lost entirely on liability. The main battle between the parties
was focused on that rather than on the quantum issues. On those Buyer has not
been entirely successful. However, Buyer still makes a substantial recovery.
Further the points on which it failed were not the subject of any great amount
of evidence, nor did they take me a great deal of time to determine. Nonetheless I
think that there are sufficient grounds here only to allow Buyer 85% of its
recoverable costs.
[47] “Those were claimed in the sum of amount Z plus A in respect of an
English lawyer’s fees for assisting. I have no problems with the lawyers’ hourly
charging rates in either instance. But it does seem to me that the time spent by
Buyer’s other lawyers was in some instances, especially when it came to pre¬
paring for and drafting submissions, rather high; and that there was probably
unnecessary duplication of work between the lawyers involved. Accordingly
I thought a lower sum only was an appropriate total to allow for those lawyers.
It also seemed to me that there was some unnecessary duplication between the
work done by the English lawyer and that done by his professional clients, so

I allowed a total of sum B only for him. In the result, Buyer being entitled to
85% of these sums, I awarded sum C.
[48] “I also awarded interest on these costs, and on the payment on account of
the arbitration costs, as set out in the dispositive part of the Award, below. Any
kind of justice requires this; commercial justice does, and so does common sense.
The rates I have applied are appropriate to the currencies used, as can easily be
seen, and need no further explanation.
[49] “I determine under Art. 31 of the Rules that Seller is to bear the whole of
the costs of the arbitration as determined by the Court. Since Buyer has paid half
of this sum, Seller must of course reimburse that amount, and for the sake of the
utmost - albeit hardly necessary - clarity, I have set this out in the dispositive
part of the Award too.”
VI. AWARD
[50] “I therefore award and adjudge that Seller shall forthwith pay to Buyer
the sum paid to the shipowners together with interest at the rate of 4.25%
(four and one-quarter percent) per annum compounded at three-monthly
rests from ... on half that sum and on the other half at the same rate and
basis from ... in both cases down to the date of payment.
[51] “I further award and direct that Seller shall bear and pay the whole of the
costs of this arbitration as determined by the Court, that accordingly it shall
reimburse Buyer the sum which Buyer has already paid on account of the costs
of the arbitration together with interest thereon at 4.25% (four and one-quarter
per cent) per annum compounded at three-monthly rests from the date of
Buyer’s payment to the ICC down to the date of reimbursement hereunder
of the said sum; and that it shall bear and pay its own costs and shall pay to
Buyer sum C in respect of Buyer’s costs, together with interest on the Euro sum
at the rate of 4% (four per cent) per annum and on the Sterling sum at the rate of
7% (seven per cent) per annum, in both cases compounded at three-monthly
rests from the date hereof down to the date of payment.”

Ií
:
I-
Parties: Claimant: Company ABC (nationality not indicated)

Respondent: (1) Company Z International SA
(nationality not indicated);
(2) Company W SA (nationality not indicated);
(3) Company Z SA (nationality not indicated)
Place of
Subject matters: - breach of contractual warranty

- causal link between breach of contract and damages
- waiver of pre-emption right
Summary
A seller sold all shares in a holding company to a buyer. The holding com¬
pany’s assets were solely the shares in subsidiaries of the seller. The arbitral
tribunal held that: (i) the seller violated its contractual obligation of repre¬
sentation and warranty by stating that it had full and exclusive title to the
subsidiaries’ shares, while in fact it failed to terminate the pre-emption right
of a third party ( Mr. X) on a subsidiary’s shares; (ii) the seller did not violate
its delivery obligation under the contract, because it duly transferred the
shares in the holding company. Although some French courts take the sub¬
stance of the business transferred into account when requested to invalidate
share sales for a fundamental error of the purchaser, in the current state of
French case law the purchaser of a controlling interest in a company may not
rely on a breach of the seller’s obligation to deliver in relation to such com¬
pany’s underlying assets; (Hi) on the facts of the case, the seller did not breach
its contractual obligations to warrant title to the goods (garantie d’éviction ),
to conduct business as a bon père de famille and to cause employees to
collaborate with the buyer; (iv) there was no causal link between the seller’s
breach of contract and the buyer’s losses, as the subsidiary’s collapse had
been caused by Mr. X’s conduct.
Reprinted ftom the Yearbook Commercial Aibitration 345

Mr. X - who was not a party to this arbitration but whose activities largely
determined the relations between the parties - founded and managed an Italian
company that bought advertising slots under "supplier agreements” and sold
them to customers wanting to advertise. The by-laws of the company provided
that Mr. X had a pre-emption right.
Company Z International SA (First Respondent) - a non-Italian company
jointly owned by Company Z SA and a wholly owned subsidiary of Company
W SA (Second Respondent) - entered the relevant Italian advertising market by
(i) incorporating a wholly owned subsidiary under the name Company Z Italia
srl and (ii) acquiring an interest in Mr. X’s company. Mr. X’s company was
renamed Company Z Italia SpA; First Respondent held 51 percent of its shares,
while Mr. X, who was also the company’s managing director, held 49 percent.
First Respondent and Mr. X entered into a Memorandum of Understanding
(MoU) in respect of the sale. The MoU provided, inter alia, that Mr. X could
oppose the first candidate chosen by First Respondent for the position of man¬
aging director, if First Respondent were obliged to revoke Mr. X for good cause;
if Mr. X also opposed a second candidate and that candidate was appointed, then
Mr. X would have the right to sell his interest in the company to First
Respondent (the Put Option). Also, the parties undertook not to sell their shares
to a third party (with the exception of an affiliate company of First Respondent)
for a period of five years.
First Respondent subsequently entered into negotiations with Company
ABC (Claimant) - a joint venture owned in equal parts by Company DEF
and Company GHI - for the sale of First Respondent’s subsidiaries, including
Company Z Italia SpA. During the negotiations, which involved the subsidiar¬
ies, Mr. X expressly mentioned his pre-emption right and the commitment of
Company Z Italia SpA’s shareholders not to sell their shares for five years. Mr. X
also pointed out the worrying financial situation of Company Z Italia SpA. (In
Italy, the relevant advertising business is characterized by a high need of
working capital.)
Claimant and First Respondent eventually reached an agreement for the sale.
First Respondent would incorporate a new holding company (Holdco or the
Holding) to which it would contribute all shares. First Respondent would then
transfer the shares in the Holding to Claimant on a certain date, date B (the
Closing Date).
In preparation of the sale, First Respondent entered into an agreement
(Accordo) with Mr. X. The Accordo provided, inter alia, that Mr. X waived
his pre-emption right on the condition that; (i) the Holding replace First
Respondent as party to the MoU as of the date (a far data) of the transfer of
First Respondent’s participation in Company Z Italia SpA (the Participation) to
the Holding; (ii) the Holding sell the shares in Company Z Italia SpA to a

i
;
purchaser selected exclusively among Company GHI, Company DEF,

Claimant or any of their parent companies, subsidiaries or affiliates; (iii) the
sale and purchase agreement between the Holding and the selected purchaser
be signed not later than date B. The Accorda also provided that First Respondent
grant to Company Z Italia SpA a temporary advance of €3,5 million, to be paid
according to an agreed schedule. The Accordo was to be no longer effective if it
was not signed and received by the Parties within a certain date (date A) pre¬
ceding date B.
Shortly after the Accordo was signed, Claimant entered into a Share Purchase
Ï Agreement (SPA) with First Respondent and its parent companies, Second
Respondent and Company Z SA (collectively, Respondents) for the sale of
V
First Respondent’s subsidiaries. Clause 12.10 of the SPA provided for arbitra¬
tion of disputes by an ICC arbitral tribunal in Paris.1
As agreed among the parties, First Respondent incorporated the Holding and
then entered into several share purchase agreements with it in respect of the
shares in First Respondent’s subsidiaries. A share purchase agreement was also
concluded, relevantly, in respect of First Respondent’s 100 percent interest in
Company Z Italia srl and First Respondent’s Participation in Company Z Italia
SpA (the Holding/First Respondent SPA). The Holding/First Respondent SPA
provided that title to the shares had to pass to the Holding on date B-2 at the
latest. First Respondent warranted that Mr. X’s pre-emption right had been
waived by the Accordo.
The Participation was transferred to the Holding under the Holding/First
Respondent SPA by an act certified by a notary.public in [an Italian city]. In
1. The clause read:

“All disputes arising out of or in connection with this Agreement shall be finally settled under the
Rules of Arbitration of the International Chamber of Commerce (ICC) of Paris, which Rules are
deemed to be incorporated by reference into this Clause. The seat for the arbitration proceedings
shall be Paris (France). The arbitrationshall be conducted in the English language, and the Parties
agree that no translation shall be needed for the use of documents in French or for the use of
French law materials. The arbitration award shall be written in English.
The tribunal shall be comprised of three arbitrators appointed as follows:
(i) if the dispute is between two Parties whatsoever, each of those Parties shall appoint an arbi¬
trator and the two arbitrators so appointed shall agree to appoint a third arbitrator who will
act as chairman of the arbitration tribunal. In the event that one of the Parties falls to appoint
an arbitrator or in case of disagreement between the two arbitrators on the choice of a third
arbitrator, such appointment shall be made by the International Court of Arbitration of the
ICC.
(ii) if the dispute in question is between more than two Parties, the three arbitrators shall be
appointed pursuant to the provisions of the Arbitration Rules of the International Chamber of
Commerce applicable in case of multiple parties.”

the meantime, First Respondent paid the temporary advances under the Accordo
to Company Z Italia SpA.
Closing under the SPA (transfer of the shares in the Holding to Claimant)
took place on date B+10.
Following the Closing, Mr. X - who was still Company Z Italia SpA’s man¬
aging director -showed a marked unwillingness towork with and under the new
shareholder and took several steps that allegedly worsened Company Z Italia
SpA’s financial situation. Inter alia, he terminated commercial agency contracts
with several agents and outsourced part of the company’s activity to Company J
srl, an Italian company held by one of Company Z Italia SpA’s former employ¬
ees. Company J srl was appointed exclusive commercial agent to sell advertising
space in the name of Company Z Italia SpA; it later appeared that Company J srl,
while receiving an agent’s fee, did not retrocede the amounts billed to and paid
by the customers to Company Z Italia SpA. Company Z Italia SpA was thus
emptied of all its assets and de facto liquidated, its business being, according to
Claimant, taken over by a company constituted by former employees of
Company Z Italia SpA, in particular the same employee behind Italian
Company J srl.
Mr X. also claimed that he had not renounced his pre-emption right as one of
the three conditions under the Accordo - that the Holding succeed First
Respondent as a party to the MoU before the date on which the shares in
Company Z Italia SpA were transferred to the Holding - had not been met.
He therefore commenced an action against First Respondent, the Holding and
Company Z Italia SpA in an Italian court, seeking an order declaring that the sale
of First Respondent’s interest in Company Z Italia SpA was ineffective. His
request was denied, whereupon Mr. X appealed. This proceeding was pending
before an Italian appellate court at the time of the present award.
Mr. X’s claim was the source of the dispute that arose between Claimant and
Respondents and led to the present ICC arbitration and award. When Claimant
became aware of Mr. X’s claim, it notified Second Respondent - in its capacity of
agent for the guarantors (that is, Second Respondent itself, Company Z SA and
First Respondent) - that the Holding had a claim against them for several
breaches of the SPA, in particular, a breach of the representation and warranty
that First Respondent had the exclusive ownership of the shares in First
Respondent’s subsidiaries, including Company Z Italia SpA.
Claimant then commenced ICC arbitration against Respondents as provided
for in the SPA. (Mr. X was not a party to the arbitration.) Claimant asked
the arbitral tribunal to rule that First Respondent: (i) failed to deliver to
Claimant (through the Holding) effective control over Company Z Italia
SpA; (ii) breached its obligation to warrant the purchaser a peaceful possession
of the shares of Company Z Italia SpA and (iii) breached its obligation to pro¬
vide sufficient funding to Company Z Italia SpA until the Closing, as well as its

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|; CASE NO. 12745, 2005 ARBITRAL AWARDS
obligation to cause Mr. X and the management and employees of Company Z
Italia SpA to cooperate loyally with Claimant. Claimant also asked the arbitra¬
tors to rule that such breaches were in direct link of causation with the losses
suffered by Claimant due to the destruction of the business of Company Z Italia
SpA, which was by then in liquidation. It further sought damages, interest and
the costs of the arbitration and legal costs.
Admissibility. The arbitral tribunal held at the outset that the claims were
admissible, denying Respondents’ argument that Claimant failed to notify its
claims within forty-five days of becoming aware of the cause for a claim as
provided in the SPA. The tribunal held that the issue whether Claimant had
validly given notice of claim could be left open, as under the SPA the only
sanction of a failure to give valid notice of claim was the payment of damages,
not the inadmissibility of the claim. Damages were owed only if Respondents
could prove that the delay in giving notice adversely affected their defense.
Respondents failed to do so.
The arbitrators also denied Respondents’ defense that Claimant’s claims were
inadmissible to the extent that they concerned representations and warranties in
respect of matters that were disclosed in the (disclosure) schedules to the SPA.
The tribunal disagreed, holding that under the SPA Claimant’s knowledge was
not a complete bar to recovery but a limitation of Respondents’ liability as
arising from their representations and warranties. Hence, whether and to
what extent disclosures affected Respondents’ liability was an issue of substance,
not admissibility.
Waiver of pre-emption right. The arbitral tribunal then examined whether
Mr. X waived his pre-emption right, as a precondition to determining whether
Respondents breached their obligations under the SPA. Mr. X claimed that he
did not waive his pre-emption right because one of the conditions set
out in the Accordo for a waiver had not been met, namely, the Holding had not
replaced First Respondent as a party to the MoU on the date the shares in
Company Z Italia SpA were transferred to the Holding. The tribunal first
held that it appeared from the Accordo in its entirety that the parties to it -
Mr. X and First Respondent - intended that the Holding’s succession to First
Respondent as a party to the MoU be effective as from the transfer of Company
Z Italia SpA’s shares to the Holding and that the whole transaction had to be
completed on or before date B. Hence, the substitution of First Respondent by
the Holding as a party to the MoU had to be effective on the date of the filing
with the notary public at the latest.
The tribunal then concluded that Mr. X’s pre-emption right had not been
waived because the MoU had not been assigned to the Holding, either expressly
or by means of facta concludentia {facta concludentia being a party’s conduct or
mode of action that unambiguously points to a certain position so that another
party may justifiably rely on such conduct).

The arbitral tribunal then examined whether First Respondent had breached
its obligations under the SPA, as alleged by Claimant.
Breach of delivery obligation ( obligation de délivrance conforme). The arbi¬
trators held that First Respondent’s obligation under the SPA was to deliver the
shares in the Holding. First Respondent did meet this obligation. The issue
whether the obligation to deliver also concerns the business transferred - here,
-
the shares in Company Z Italia SpA is “a controversial issue”. Although some
French courts have given consideration to the substance of the business trans¬
ferred when requested to invalidate share sales for a fundamental mistake of the
purchaser, in the current state of French case law the purchaser of a controlling
interest in a company may not rely on a breach of the seller’s obligation to deliver
in relation to such company’s underlying assets.
The arbitrators then noted that under French law, further to its obligation to
deliver the goods sold, the seller assumes two main obligations: to warrant title
to the goods {garantie d’éviction) and to warrant that the goods are free of
defects.
Breach of the obligation to warrant title to the goods sold ( garantie d’évic¬
tion). The obligation to warrant title to the goods sold covers encumbrances
resulting either from personal actions of the seller and from third party claims.
Only the latter case arose here. In relation with third party claims, the scope of
the seller’s warranty obligation is restricted to legal actions {troubles de droit)
the origin of which already existed before the sale. In the present case it was
undisputed that Claimant relied on a trouble de droit - Mr. X’s Italian court
action - the origin of which existed before the Closing Date. However, such
trouble de droit affected the shares in Company Z Italia SpA, which were not the
subject matter of the SPA. As a consequence, the garantie d’éviction did not
apply. The arbitrators accordingly denied Claimant’s request that the arbitration
proceedings be stayed pending the outcome of Mr. X’s court proceedings in
Italy.
Breach of representations and warranties. The arbitral tribunal found that
Respondents did breach the contractual representation made in a Schedule to
the SPA that Mr. X had waived his pre-emption right. The Schedule recited that
the Holding had “full, valid and exclusive ownership of the shares and securities
in the First Respondent Subsidiaries”, including Company Z Italia SpA. This
was not in fact true.
Breach of the obligation to conduct business as a bon père de famille and to
cause employees to collaborate. The arbitral tribunal then held that Respondents
did not breach their obligation under the SPA to conduct - and cause the
Holding and the subsidiaries to conduct - their business asa bon père de famille,
in particular by providing adequate funding to the subsidiaries. The arbitrators
found that the sum of €3.5 million paid by First Respondent to Company Z

r Italia SpA was such adequate funding and that it had been made duly available; a
slight delay in paying one of the installments was irrelevant, absent proof of
¡V
prejudice. Nor did First Respondent breach its obligations to cause Company Z
Italia SpA’s management and employees to cooperate with Claimant. The arbi¬
!• trators found that Respondents convincingly demonstrated that the manage¬
:
ment of Company Z Italia SpA duly collaborated with Claimant, both before
i the conclusion of the SPA and over the pre-Closing period.
Causal link. The arbitral tribunal then examined whether there was a causal
link between Respondents’ contractual breach of contractual representation and
warranties and Claimant’s losses. Claimant argued that Respondents’ breaches
7
.t of the SPA led to the complete collapse of Company Z Italia SpA and, eventu¬
(.ÿ ally, to its winding up.
The tribunal noted that while it did find that Respondents breached certain
representations and warranties made regarding the Holding’s title in the shares
£
in Company Z Italia SpA by failing to properly eliminate Mr. X’s pre-emption
right, this did not in itself entail that Respondents must compensate Claimant’s
loss. Under French law, the loss suffered must directly result from the alleged
contractual breach and the compensation may not exceed the loss that the party
in breach foresaw or ought to have foreseen. Moreover, a concurrent fault on the
part of the aggrieved party may in certain circumstances exclude or reduce the
liability of the party in breach.
The arbitrators further reasoned that several causes usually precede and bring
about the same loss. To operate a choice between these causes and determine
which one is the relevant one from a legal point of view, French authors resort to
two legal doctrines: the doctrine of equivalent causes (équivalence des condi¬
tions) and the doctrine of adequate causation (causalité adequate). Under the
doctrine of equivalent causes, all the circumstances that contributed to the
occurrence of the result will be deemed to have caused such result in an equal
manner. Thus, there is a causal link between the breach and the loss if the breach
is among the necessary conditions of the loss - without such breach, the loss
would not have occurred. Differently, pursuant to the doctrine of the causalité
adéquate only the act or event that is considered as having been the true cause of
a specific result will be taken into account. An act or event will be deemed the
cause of such result if, by human foresight, such result could be anticipated as
likely to follow from this act or event.
The arbitrators noted that French courts tend to apply the doctrine of ade¬
quate causation concurrently with the doctrine of equivalent conditions or even
alone in cases where several causes may be taken into account. In light of the
above, the tribunal examined whether Respondents’ breach of the SPA could be
deemed the adequate cause of the loss incurred by Claimant, that is, whether, by
human foresight, the collapse of Company Z Italia SpA could be anticipated as

likely to result from Respondents’ failure to properly waive Mr. X’s pre¬
emption right.
The tribunal answered this question in the negative, finding that the cause of
Company Z Italia SpA’s collapse was Mr. X’s conduct of the business after the
take-over. Respondents’ failure to obtain a proper waiver of Mr. X’s pre¬
emption right offered Mr. X, who was clearly unwilling to work in the new
structure and lacked confidence in the new management imposed by Claimant,
the possibility to make it more difficult for Claimant to take effective control of
Company Z Italia SpA. However, Respondents’ breach of contract was not the
adequate cause of Company Z Italia SpA’s winding up; it only facilitated Mr. X’s
possibly disloyal actions against the new shareholder.
The arbitral tribunal then calculated damages and interest and refused to stay a
decision on the quantum of damages until a final ruling had been issued by the
Italian courts.
Excerpt
I. SUBSTANTIVE APPLICABLE LAW
fl] “In accordance with Clause 12.9 of the SPA, French law is the law govern¬
ing the SPA.
[2] “Art. 2(d) of the United Nations Convention on Contracts for the
International Sale of Goods (CISG) specifies that the CISG does not apply to
sales of ‘stock, shares, investment securities, negotiable instruments or money’.
Therefore, the CISG does not apply.”
II. ADMISSIBILITY OF CLAIMS
(....)
1. Failure to Give Notice of Claims
[3] “Respondents submit that Claimant failed to notify its claims in accor¬
dance with Clause 9.3.1 of the SPA, which would render these claims inadmis¬
sible. This argument raises two preliminary issues, which the Arbitral Tribunal
shall address first, namely: (i) what are the requirements for a valid notice of
claim; and (ii) what is the sanction of a failure to comply with these
requirements?
[4] “The Arbitral Tribunal shall then determine whether Claimant validly gave
notice of its claims and, in the negative, what consequences follow therefrom.”

hi

a. Requirements for a valid notice of claim
L
[5] “Clause 9.3.1 of the SPA reads as follows:
Ï ‘If the Purchaser becomes aware of any action, fact or event that may give
rise to a claim against the Guarantors under this Agreement (a "Claim”),
I the Purchaser shall give a notice to the Guarantors’ Agent within forty-five
(45) days of the Purchaser’s becoming aware of any such action, fact or
I event, and in any event within the time limits provided in Clause 9.2.1. Any
delay in making such notification shall be sanctioned solely by the payment
of damages to the Guarantors, insofar as the Guarantors’ Agent is able to
; prove that such delay adversely affects the Guarantors’ defence (in such a
case, the amount of the damages shall be equal to 125% of the amount of the
prejudice thus established).
Such notice shall set out such details as are available of the specific
actions, facts or events in respect of which the claim is made, together
with a first estimate of the amount of Losses which are the subject of the
Claim. The notice shall enclose a copy of all documents establishing the
basis of the Claim. The notice shall mention whether the Claim is ... a First
Respondent Claim.’
[6] “The first sentence of Clause 9.3. l(i) of the SPA lays down the rule that
Claimant must notify any action, fact or event that may give rise to a claim
against Respondents and that the notification must take place within 45 days
of Claimant’s becoming aware of such action, fact or event. The primary
purpose of this rule, which is not uncommon in these types of transactions, is
to enable forthwith the seller to assess the likelihood and amount of its liability
and to timely begin the process of defending itself or to initiate legal actions
against third parties.
[7] “Clause 9.3.1(ii) is merely concerned with the substance of the notice of
claim. Its rationale is to ensure that the seller is in possession of all the infor¬
mation required to efficiently assess its potential liability with full knowledge of
the facts. Absent such a provision, the very requirement that a claim must be
notified in advance would be meaningless.
[8] “It follows from the above that a valid notice of claim under Clause 9.3.1
of the SPA must be lodged within 45 days of Claimant’s becoming aware of any
action, fact or event that may give rise to a claim (Clause 9.3.1(i)) and must
contain all the information listed at Clause 9.3.1(ii) of the SPA. In other
words, a notice given within the 45-day time limit of Clause 9.3.1(i) of the
SPA may not be considered timely unless and until it is properly substantiated.”

b. Sanction of an invalid notice of claim
[9] “Turning now to the next issue, the Arbitral Tribunal shall determine what
is the sanction attached to a failure to comply with the requirements mentioned
above,
[10] “The second sentence of Clause 9.3.1(i) of the SPA stipulates that ‘[a]ny
delay in making such notification shall be sanctioned solely by the payment of
damages to the Guarantors, insofar as the Guarantors’ Agent is able to prove
that such delay adversely affects the Guarantors’ defence (in such a case, the
amount of the damages shall be equal to 125% of the amount of the prejudice
thus established)’. Notwithstanding this provision, Respondents submit that
the implied sanction of a violation of Clause 9.3.1 of the SPA is the inadmis¬
sibility of the claim that was improperly notified. In support of their position.
Respondents rely on the observation that Clause 9.3.1(ii) of the SPA, as
opposed to Clause 9.3.1(i), does not provide that the exclusive sanction
would be the payment of damages. Besides, French courts have ruled on
several occasions that a claim that was improperly notified must be deemed
inadmissible.
[11] “As stated above, Clause 9.3.1(ii) of the SPA has no existence of its own,
its purpose being limited to determine the contents of a valid notice of claim.
Besides, a notice given within the 45-day time limit of Clause 9.3. l(i) of the SPA
may not be considered timely unless and until it is properly substantiated.
Therefore, the fact that no express consequence is attached to the failure to
include the relevant information is not decisive.
[12] "As correctly pointed out by Claimant, it would be illogical that different
sanctions be imposed depending on whether the notice has not been made
within the prescribed time limit or whether it has not been properly substanti¬
ated. It would not be less illogical to deem inadmissible a claim because the
notice did not mention an estimate of the losses incurred and to admit a
claim notwithstanding the fact that the notice was not lodged within the pre¬
scribed time limit. All the more so since the primary purpose of a notice of claim
is to enable the seller to timely assess its potential liability. As a matter of fact, the
two situations are similar under one reservation: if the notification is belated, the
seller goes unaware of the potential case for its liability whilst, in the case of a
timely unsubstantiated notification, the seller is cognisant of the buyer’s possible
claim and thus in a position immediately to request supplemental information,
namely the allegedly missing substantiation of the claim.
[13] “Finally, French case law is of no avail to Respondents. It is true that
French courts tend to deem inadmissible claims that are not notified in accor¬
dance with a contractual mechanism. However, this is only where the parties
have not expressly determined the consequence of a failure to comply with such

f CASE NO. 12745, 2005 ARBITRAL AWARDS
mechanism. To the contrary, French courts will apply the contractual sanctions
contemplated by the parties:
‘La sanction du non-respect de l’obligation varie selon qu’elle a ou non été

contractuellement prévue. Lorsque la sanction a été prévue par les parties, les
juges appliqueront la sanction contractuelle, visant à réprimer la mauvaise
exécution des procédures d’ information. Dans le cas contraire, c’est-à-dire
en l’absence de stipulation contractuelle, un débat s’instaurera le plus sou¬
vent sur la sanction applicable.’2
In the instant case, Clause 9.3.l(i) expressly provides that a delay in notifying a
ï claim ‘shall be sanctioned solely by the payment of damages to the Guarantors’.
[14] “Based on the above, the Arbitral Tribunal finds that the only conse¬
quence of a failure to give a valid notice of claim is the payment of damages.”
c Whether claimant gave valid notices of claims
[15] “The issue whether the notices of claims given were valid may be left
open. As stated above, the only sanction of a failure to give a notice of claim in
accordance with Clause 9.3.1 of the SPA is the payment of damages. However,
this sanction applies ‘insofar as the Guarantors’ Agent is able to prove that such
delay adversely affects the Guarantors’ defence (in such a case, the amount of the
damages shall be equal to 125% of the amount of the prejudice thus established)’
(Clause 9.3.1(i)).
[16] “In their Submission No. 1, Respondents have alleged that ‘. .. the first
claims notified to Respondents were confusing and hindered Respondents’ ability
to reply to the claim with precision and that ‘Respondents therefore suffered a
damage’. A similar stance was contained in Respondents’ Submission No. 2.
However, Respondents have neither explained how their defense was affected
by Claimant’s alleged failure to give a valid notice of claim nor established the
existence and extent of the resulting prejudice. To avoid any ambiguity: whether
Respondents were handicapped in their defense is an issue discrete from a possible
increase of the damage sustained as a consequence of the time elapsed from month
Y to month Y+4 of the relevant year. This separate issue will be addressed below.
[17] “Therefore, the Arbitral Tribunal finds Respondents’ defense that
Claimant’s claims must be deemed inadmissible based on Clause 9.3.1 of the
SPA to be without merit.’’
2. “DANIS/TRÉGUER, Note ad CA Paris, 3rd ck, 17 May 2002, in JCP, La Semaine Juridique
Entreprises et Affaires, no. 43, 23 October 2003, p. 1724)).”

2. Exceptions to Contractual Representations
[18] “Clause 8.1.3 of the SPA stipulates that:
‘All Representations and Warranties (except for the Z Contribution) are

made subject to any matter which is disclosed in Schedule 8 or any of the
Disclosure Schedules or in Part A of the Disclosure List, and the Guarantor
shall thus not be liable in respect of any Claim (except for the Z Contribu¬
tion) to the extent that the relevant actions, facts or events giving rise to the
Claim were disclosed in Schedule 8 or any of the Disclosure Schedules or in
Part A of the Disclosure List. Any disclosed matter shall limit the contents
and scope of such Representations and Warranties (except for the Z Con¬
tribution) to the extent that such matter has been properly disclosed in the
Disclosure Schedule (contents and, where applicable, amount) or in Part A
of the Disclosure List.’
[19] “Based on the above provision. Respondents’ second defense is that

Claimant’s claims, to the extent they relate to actions, facts or events that were
disclosed prior to contracting, constitute exceptions to the representations made
by Respondents and, accordingly, must be deemed inadmissible. This defense
raises the issue of the effect of the purchaser’s knowledge on the seller’s liability.
[20] “In M&A transactions, contractual representations are promises made by
the seller that certain past or existing facts relating to the company or the busi¬
ness sold are true. They increase the purchaser’s protection by enabling it to
ascertain a liability and claim recovery in case of breach. In anticipation of
representations, the seller will generally carry out a disclosure exercise - result¬
ing in the preparation of a disclosure letter which lists information disclosed to
the purchaser. The seller may then take exceptions to the representations and
warranties by reference to the disclosure letter. The parties are free to determine
the effect of the purchaser’s knowledge on the seller’s liability. In M&A trans¬
actions, this issue is generally dealt with explicitly.
[21] “In the instant case, the representations made by Respondents (and by
Claimant) were included in Schedule 8 to the SPA. Information disclosed to
Claimant was collected in Schedule 8 to the SPA, the various Disclosures
Schedules and Part A of the Disclosure List (Schedule l.l.l(b2) to the SPA).
The effect of Claimant’s knowledge on Respondents’ liability is determined at
Clause 8.1.3 of the SPA.
[22] “The first sentence of Clause 8.1.3 of the SPA may not clear up every
ambiguity as to the effect of Claimant’s knowledge on Respondents’ liability. As
a matter of fact, such sentence provides that ‘the Guarantor shall thus not be
liable ... to the extent that the relevant actions, facts or events giving rise to the

A
i
V
Claim were disclosed . . . ’, which may make one conclude that disclosures com¬
pletely defeat breach claims. On this basis, it could be argued that claims relating
to facts that were disclosed must be deemed inadmissible.
[23] “However, the second sentence of Clause 8.1.3 of the SPA further spe¬
cifies that e[a]ny disclosed matter shall limit the contents and scope of such
Representations and Warranties . . . ’ thus making it clear that the effect of
Claimant’s knowledge is not a complete bar to recovery but a limitation of
Respondents’ liability as arising from their representations and warranties. In
other words, whether and to what extent disclosures affect Respondents’ liabil¬
ity is an issue of substance, which the Arbitral Tribunal shall address when
assessing the merits of Claimant’s breach claims and not a question of admis¬
sibility. To illustrate this finding, it is the Arbitral Tribunal’s view that the full
disclosure of an action, fact or event would not make a claim inadmissible but
such claims would be dismissed as not meritorious.”
3. Conclusion
[24] “Based on the foregoing considerations, the Arbitral Tribunal shall dis¬
miss Respondents’ motion that Claimant’s claims are inadmissible.”
III. WAIVER OF PRE-EMPTION RIGHT
[25] "At this juncture, it is necessary to state what issue is really arising: it is
not as a first and foremost deciding factor to establish what the agreements
between Mr. X and Respondents were or how Italian law will give effect to
such agreements. The cornerstone is what the parties in this arbitration agreed to
and what effect French law does give to their agreement.
[26] "In this regard, it is fit to recall that the French civil code (hereinafter the
‘FCC’), which is not especially different from international arbitration practice,
lays down some rules for the construction of contracts (Art. 1156 et seq.). Thus,
Art. 1156 of the FCC provides that:
‘On doit dans les conventions rechercher quelle a été la commune intention
des parties contractantes, plutôt que de s'arrêter au sens littéral des termes.’
[27] "In agreements, one will seek what was the common intent of the con¬
tracting parties, rather than to rest upon the literal meaning of their wording.
Art. 1157 of the FCC provides that when a provision may have two meanings, it
should rather be understood in the meaning that will let it produce some effect
than in such meaning where it would be of no effect. Such interpretation rules
are obviously not mandatory but they are common sense guidelines to which
;K
r Reprinted from the Yearbook Commercial Arbitration 357

i.
judges and arbitrators will normally give considerable respect. Besides, they are
meant to extract from the contract the true and actual common intent of the
parties: they become unnecessary where such intent clearly results from any
other circumstances as interpretation is then not useful.
[28] “It follows that the exact meaning of the expression 'a far data', the
intricacies of Italian law (about which both parties supplied authoritative and
convincing legal opinions) will of necessity be less essential in the reasoning of
this award than the common purpose of the parties in the SPA; the issue is to
determine whether Respondents breached that agreement, especially their deliv¬
ery obligation or their representations and warranties.
[29] “It remains that the Arbitral Tribunal must determine a central and most
debated issue in this case, i.e., whether Mr. X’s pre-emption right on First
Respondent’s 51% interest in Company Z Italia SpA was properly waived.
This issue raises complex factual and legal questions, and the parties have devot¬
ed considerable attention to it in their impressive pleadings. The reason is that
Respondents’ alleged failure to properly waive Mr. X’s pre-emption right is
behind several breach claims advanced by Claimant, namely:
(i) The alleged breach by First Respondent of its delivery obligation;

(ii) The alleged breach by First Respondent of its obligation to warrant title to
the goods sold (‘garantie d'éviction’);
(iii) The alleged breach by Respondents of contractual representations and
warranties.
Ultimately, Claimant submits that Respondents’ failure to provide a valid waiv¬

er of Mr. X’s pre-emption right is the proximate cause of Company Z Italia
SpA’s collapse.
[30] “Therefore, the Arbitral Tribunal shall now determine whether, as a
purely factual matter, Mr. X’s pre-emption right was properly waived.”
{....)
1. Mr. X’s Pre-Emption Right
[31] “Art. 7 of the Articles of Association of Company Z Italia SpA reads as

follows:
‘Article 7 - TRANSFER OF SHARES

The shareholders who intend to transfer all or part of their shares must - at
the same conditions - offer them to the other shareholders who may
exercise their pre-emption right in proportion to the shares they hold.
This offer must be made through registered letter with acknowledgment
of receipt to be sent to the address that appears in the shareholders register.

ni"--::
<1
The pre-emption right must be exercised within thirty days from the date
of the acknowledgment of receipt of the registered letter.
The shares for which the pre-emption right is not exercised must be re-
offered under the same procedure to allow the shareholders who have
exercised their right to acquire the shares in their entirety.
The shares that may still not be so acquired by pre-emption may then be
freely transferred.’
Moreover, in accordance with Art. 5 of the MoU, Mr. X and First Respondent
committed not to sell their shares in Company Z Italia SpA to any third party
save a company affiliated to First Respondent for a duration of five years from
the date of the MoU.
[32] “In the first part of the relevant year, Mr. X and First Respondent
entered into the Accordo, whereby Mr. X agreed to waive his pre-emption
right on First Respondent’s shares of Company Z Italia SpA and undertook
not to object to the transfer of First Respondent’s shares to the Holding {Art.
2). The Accordo was drafted in Italian. Art. 3 of the Accordo reads as follows
(emphasis added):
‘3. Efficada. II presente Accordo sarà efficace dal momento della sottoscri-
zione di [First Respondent], Se non verra controfirmato e ricevuto dalle parti
entro e non oltre [date A] non potra in alcun modo essere considerato valido
in nessma delle sue parti. Tuttavia, le rinunce di cui all'art. 2 da parte del
[Mr. X] perderanno efficacia nel caso cui una delle seguenti condizioni non
sia rispettata da [First Respondent] o [Holdco]:
(i) [Holdco] dovrà subentrare a [First Respondent] nel MoU afar data
dal trasferimento della Partedpazione, che dovrà avvenire entro
[date B];
(ii) VOperazione dovrà essere stipulata con un acquirente da selezionarsi
esclusivamente tra una delle seguenti sodetà: [Company GHÍ];
[Company DEF]; [Claimant], o una qualsiasi delle loro sodetà control-
lanti, controllate o collegate ai sensi dell’articolo 2359 del Codice Civile;
(iii) il contratto di compravendita delle azioni tra [Holdco] e Vacquirente
selezionato dovrà essere firmato entro e non oltre [date B].’
The English translation of the above provision contemporaneously agreed upon

by the parties provides that:
‘3. Effectiveness. This Agreement shall be effective at the date of its signa¬
ture by First Respondent. However the Agreement shall not be longer valid
!
:
in the event it is not signed and received by the Parties within [date A].
Furthermore, the waiver granted by Mr. X shall be no longer valid if one of
the following conditions would not be fulfilled by First Respondent or
Holdco:
(i) Holdco shall succeed to First Respondent as Party to the MoU as of

the date of transfer of the Participation, which shall be performed
within date B;
(ii) the Transaction shall be entered into with a purchaser to be selected
exclusively among one of the following parties: Company GHI;
Company DEF; Claimant, or any of their parent companies,
subsidiaries or affiliates pursuant to Art. 2359 of the Italian Civil
Code;
(iii) the sale and purchase agreement between Holdco and the selected
purchaser contemplating the Transaction shall be signed not later
than [date B].’
[33] “It is common ground between the parties that, pursuant to the above
-
provision, the effectiveness of the Accordo and, accordingly, the waiver by Mr.
X of the rights conferred by the MoU and the Articles of Association of
Company Z Italia SpA - was dependent upon the fulfilment of three dissolving
conditions, namely that
(i) the Holding become a party to the MoU in the stead of First
Respondent;
(ii) the purchaser of First Respondent’s interest in Company Z Italia SpA be
Company GHI, Company DEF or Claimant or an affiliate thereof; and
(iii) the SPA be signed no later than date B.
The parties also agree that the second and third conditions were met.
[34] “However, the parties’ views differ as to whether the first condition was
met. The disagreement stems from a differing understanding of the moment in
time at which the Holding had to replace First Respondent as a party to the
MoU (Art. 3(1)). According to Claimant, the Holding had to succeed to First
Respondent as a party to the MoU on the Closing Date at the latest. According
to Respondents, ‘as of the date of’ is not an accurate translation of ‘a far data’,
which means ‘on or after’. In other words, the Holding could succeed to First
Respondent at any time, on or after the Closing.
[35] “The Arbitral Tribunal shall therefore determine when the Holding had
to succeed to First Respondent as a party to the MoU and whether the Holding
timely succeeded to First Respondent.”

¡j
2. When Was the Replacement of First Respondent
by the Holding to Take Place?
[36] “As already pointed out, there are two discrete issues of interpretation. Firs t,
what did Mr. X and First Respondent agree when they entered into the Accordo ?
Second, what did Claimant and First Respondent agree when they entered into
the SPA? Obviously, the two questions are connected, especially as First
Respondent was a party to the Accordo and to the SPA and may not necessa rily ‘
be assumed to have contracted contradictory or even hardly compatible commit¬

ments. Nevertheless, it is necessary to distinguish these two issues, the latter being
obviously more relevant to the determination of this arbitration than the former.
[37] “According to Art. 3(1) of the Accordo, the Holding had to succeed to
First Respondent as a party to the MoU 'a far data dal trasferimento della
Partecipazione, che dovra avvenire entro [date B]'. According to
■
Respondents, the expression ‘a far data’ must be translated by ‘on or after’
and means that the Holding could succeed to First Respondent as a party to
the MoU at any time after the transfer of Company 2 Italia SpA’s shares. In
support of this stance, Respondents have filed an unofficial translation into
English of the Accordo, in which‘afar data’ is translated by ‘on or after’.
[38] “Respondents have also filed two expert opinions drafted by Prof. U,
confirming that the expression 'a far data’ means 'on or after’. The first opinion
reads as follows in its relevant part:
‘Turning now to the interpretation of the meaning of the first double

condition, it is clear that the contracting parties specified date B as the
deadline by which the shares in Company 2 Italia had to be transferred
by First Respondent to Holdco. By contrast, the contracting parties agreed
no deadline in relation to Holdco’s adherence to the MoU but just a com¬
mencement date: “Holdco shall succeed to First Respondent in the MoU on
or after the date of transfer of the Participation. ...”
There can be no doubt as to the meaning of the expression adopted by the
contracting parties since the meaning of the expression used in the Italian
language means on or after that date. In truth date B constitutes both the
deadline for the transfer of the shareholding from First Respondent to
Holdco and the commencement date starting from which Holdco is called
upon to adhere to the MoU in place of First Respondent.’
Prof. U confirms his view in his second opinion:
‘When the contracting parties talk of the succession of Holdco in the MoU
they refer to the expression“afar data”, that in Italian means “commencing

on this date”. Instead, when the parties talk of the transfer of the share¬
holding they use the expression“ entro il ...” which indicates the time limit
within which the expected action must take place.’
[39] “From a purely linguistic point of view, Prof. U’s opinion is not sufficient
to find in favour of Respondents’ position. Claimant’s experts (Z and H) have
clearly confirmed that ‘a far data’ could not be translated by ‘on or after’. Thus,
Expert Z stated that:
‘Conversely, the translation of “a far data” by “on or after” seems to be

substantially incorrect in the context of the examined document, because it
introduces an idea of temporality as far as the moment when the event has
to occur is concerned, which is not included in the Italian expression. In
other words, to say that an event will have to be realised“afar data da . .
does not necessarily mean that such event can occur after the indicated
date.’
Expert H confirmed the above view:
‘In my opinion, the expression “afar data” can properly be translated by

“as of” or “as from” or even “with effect from”. It cannot in my view, be
translated using the expression "on or after”. The reason for this is that the
expression“afar data” refers to a date on which an event must take place.
The expression “on or after”, as translated in the second version, only refers
to a date from which the event should take place. There is, therefore, no
reference whatsoever to the date when such event takes place.’
[40] “Both experts confirmed their written statements during the hearing.
Expert Z unequivocally confirmed that the substitution of the Holding
could not take place after the transfer of the participation in Company Z
Italia SpA:
‘The Chairman: I will give you immediately all my questions. What I am

going to ask you - you told me now that the transfer of the participation had
to take place on or before date B. Now what I am going to ask you, and,
again, only a matter of language with respect to this sentence: The substitu¬
tion of First Respondent into the MoU, is it possible for this substitution to
happen before the transfer of the participation? Is it possible to happen on
the same day of the transfer of the participation, can it happen after the
transfer of the participation? And the fourth question: If the transfer of the

participation has happened on date B, could it happen after date B? So my

four questions again. You will tell me the language -
Expert Z: Excuse me, if you please, if you repeat the four questions, I say
yes or no to each of the four questions.
The Chairman: You say yes or no, or the language -
Expert Z: Okay.
The Chairman: The first question is: Is it possible for the substitution to
happen before the transfer of the participation?
Expert Z: No.
The Chairman: The second question, languagewise, the second question: Is
it possible for the substitution to happen the same day as the transfer of the
participation?
Expert Z: Yes.
* The Chairman: Now is it possible for the substitution to happen after the
transfer of the participation, but before date B?
Expert Z: No.'
Finally, Expert Z went on to explain how he would translate the expression ‘on
or after’ in Italian:
‘The Arbitrator:The last paragraph, you say that you cannot translate "afar
data” by “on or after”, and then you explain why. If you would like to
express the meaning “on or after”, what would you say in Italian?
Expert Z: “Alla datao dopo.” It means that “after” is “ dopo”, it is unequiv-
ocal that “after” is “dopo”.
The Arbitrator: They are [clearly two] expressions.“A far data” means one
thing and “alia data o dopo” -
Expert Z: “Dopo” means “after”, yes.’
Expert H appointed by Claimant also confirmed orally that ‘afar data’ could
notbe translated by ‘on or after’:
‘Q. Do you exclude that the words “a far data” can be translated by “on or
after”?
A. Absolutely, yes.’
And further:
‘Q. It doesn’t refer to the transfer of participation. So date B is the deadline

for the transfer of participation. So date B is the deadline for the transfer of
k participation, is that what you are saying?
I
&
A. Holdco must replace First Respondent in the Memorandum of

Understanding with effect from the transfer of the shareholding, which
must take place by date B. That is how I would translate.5
[41] “Moreover, Respondents appear to acknowledge in their post-hearing

brief that the expression ‘a far data5 may mean that an event ‘has to have effect
from a certain date, with, possibly, a retroactive effect from that date onwards5.
Yet, this is exacdy the stance defended by Claimant, which argues that the
substitution of First Respondent by the Holding ‘had to take effect at the
same date as the share transfer5.
[42] “Beyond this mere linguistic approach, the interpretation of the Accordo
leads to the conclusion that the parties to it intended that the succession of First
Respondent by the Holding as a party to the MoU be effective as from the
transfer of Company Z Italia SpA’s shares and that the whole ‘Transaction5
had to be completed on or before date B.
[43] “First, the English version of the Accordo agreed upon by the parties
translates ‘a far data by ‘as of’. It is true that the Italian version of the
5
Accordo must prevail in case of discrepancy (Art. 10). However, this translation,
which is a contemporaneous document, gives a first and most authoritative
indication of the parties’ intention at the time of contracting. One may hope
(perhaps naively) that the parties did read this English translation in due time
and would have reacted if ‘as of’ did not square with their common and actual
consent.
[44] “Second, it appears that the succession of the Holding as a party to the
MoU was a primary condition laid down by Mr. X to consent to forfeit his pre¬
emption right on First Respondent’s interest in Company Z Italia SpA. This is
easily understandable as the MoU did not only grant him a pre-emption right,
but virtually secured his position of managing director of the company by oblig¬
ing First Respondent to buy him out if it intended to revoke him. As a side note,
the Arbitral Tribunal observes that this is exactly what Mr. X pleaded in the
Italian proceedings:
‘(6) that the entry into the MoU in fact was and is [correction of the trans¬
lation [in the award]] the sole guarantee of the minority shareholder on the
one hand to be ensured management of the company and of the other, in the
event of its revocation to see his quota liquidated in accordance with the
parameters established therein. .. .’
[45] “Yet, if one were to interpret Art. 3(1) of the Accordo as meaning that the
Holding could become a party to the MoU at any time on or after the transfer of
Company Z Italia SpA’s shares, the condition laid down by Mr. X would be

sí
*
meaningless. As a matter of fact, Mr. X would have consented to waive his pre¬
emption right without any assurance that the Holding, as the new majority
shareholder, ever accept to be bound by the MoU.
[46] “It is worth recalling in this respect that under Italian law, a share sale
does not automatically operate the transfer to the purchaser of a shareholder’s
agreement concluded by the seller.
[47] "It may well be that, as suggested by Respondents, Mr. X could then have
requested that a court set a time limit for the Holding to enter into the MoU.
However, this solution seems hardly compatible with the precautions taken by
Mr. X to ensure that his rights arising under the MoU survive the transfer of
First Respondent’s interest in Company Z Italia SpA. Besides, Claimant’s expert
- Prof. O doubted that a court could retain jurisdiction over the Holding:
‘Q. Prof. U [the expert appointed by Respondents] yesterday told us that

Mr. X could have resorted to the courts on the basis of Art.1183 of the Civil
Code so as to obtain that a deadline be set down for the substitution. What
do you think of this possibility of having an order placed upon Holdco for
setting out a date for substitution?
A. I say that wouldn’t have been possible. The reason for this is that
Holdco was not the subject of the mandatory relationship that existed
between First Respondent and X. Instead, Holdco was a third party and,
as such, the judge would not have been able to set out any order applying
to Holdco.’
[48] “Following Respondents’ interpretation that the Holding could succeed

to First Respondent as a party to the MoU at any time on or after the transfer of
Company Z Italia SpA’s shares, the Holding, as the new majority shareholder,
would have had an opportunity to revoke Mr. X without being bound by the
provisions of the MoU before the outcome of any court action initiated by
Mr. X to force the Holding to become a party to the MoU.
[49] “Another argument militates against the interpretation proposed by
Respondents. The Holding was not a party to the Accordo, which was entered
into by First Respondent and Mr. X. Therefore, after the transfer of Company Z
Italia SpA’s shares to the Holding, Mr. X could only enforce the Accordo against
First Respondent, while the new majority shareholder would be the Holding.
[50] “The Arbitral Tribunal notes that Respondents’ expert, Prof. U,
acknowledged that Mr. X would have been very badly advised to accept a clause
such as Art. 3(1) as interpreted by Respondents:
‘Q. So you believe that Mr. X had stipulated a condition in his interest
which he had to go to the judge to prevail himself of?

A. Mr. X maybe was not assisted in a proper way, because if he was assisted,
if he had been assisted in a proper way, this clause should have been written
in a different way.’
[51] “In summary, the Accordo is an agreement made with a view to enabling
First Respondent to transfer its participation in Company Z Italia SpA to the
Holding and then subsequently to transfer the Holding to a purchaser accept¬
able to Mr. X (see the last recital of the Accordo). It was the intent of Mr. X to
limit his waiver to a certain period (i.e., till date B) during which the Company Z
Italia SpA’s shares had to be transferred and First Respondent had to lend
€ 3.5mio to First Respondent (Art. 4). It is difficult to fathom a reason out
of which Mr. X should have accepted to delay beyond date B the substitution
of the Holding into the MoU: there is no logical reason then to single out this
substitution.
[52] "However, the agreements between Mr. X and First Respondent are less
relevant than the actual intent of First Respondent and Claimant in this regard,
that is how they agreed to construe the Accordo in the framework of the SPA.
[53] “There is one argument that definitively speaks in favour of Claimant’s
interpretation of Art. 3(1) of the Accordo. First Respondent entered with the
Holding, then still its 100% subsidiary, into a share purchase agreement for the
sale of 51% of the issued share capital of Company Z Italia SpA. First
Respondent represented that the Company Z Italia SpA shares were freely
transferable:
‘5. Pre-emption Rights and Standstill commitments

Pursuant to the agreement (‘accordo’) entered into by the Seller and Mr. X,
all pre-emption rights and standstill commitments have been waived, so
that the Shares are freely transferable.’
This defeats Respondents’ interpretation of the Accordo.

[54] “First, assuming arguendo that Art. 3(1) of the Accordo actually did allow
the Holding to become a party to the MoU instead of First Respondent on or
after the transfer of Company Z Italia SpA’s shares to the Holding, First
Respondent was thus letting the Holding decide whether its above representa¬
tion to the same Holding would be true. Logically, it would have been for the
Holding to warrant to First Respondent that it would timely enter into the MoU
and thus release First Respondent from any obligation thereunder.
[55] “Second, [when the Holding/First Respondent SPA was concluded], the
parties had already entered into the SPA, so that First Respondent was bound
shortly to transfer the control of the Holding to Claimant. It is inconceivable
that in a large merger and acquisition transaction, with the assistance of

j'

reputable lawyers, a selling party would leave it to the purchaser and possibly a
third party (Mr. X) to cause the occurrence of an event which was the subject
matter of a representation, namely that all the formalities related to the transfer
would be effectively and duly completed (Clause 4.2.4 of the SPA).
[56] “Third, when Claimant formally notified Second Respondent of breaches
of representations and warranties, Second Respondent replied that the Holding
had acquired the title of ownership in the Company Z Italia SpA shares by virtue
of the share purchase agreement and the filing of the transfer of the shares with a
Public Notary in [an Italian cityj.lt was then Second Respondent’s position that
this fulfilled before the Closing the condition precedent according to which on
the Closing Date, the Holding would have exclusive ownership of the shares
in the First Respondent Subsidiaries (including Company Z Italia SpA). ...
Second Respondent was thus confirming that, when the SPA was registered
with the notary public, there was no step missing to make the transfer of the
A Company Z Italia SpA shares to the Holding fully valid. A similar representa¬
tion that the Holding had full, valid and exclusive ownership of Company Z
Italia SpA’s shares, which were free and clear of all liens, was also made in the
SPA (Clause 4.1.6 of Schedule 8 to the SPA).
[57] “In light of the above consideration, the Arbitral Tribunal reaches the
conclusion that the parties’ intention - as expressed in Art. 3(1) of the Accordo -
was that the substitution of First Respondent by the Holding be effective at the
latest on the date of the transfer of Company Z Italia SpA’s shares to the
Holding, which itself had to happen on or before date B.
[58] “The sale of First Respondent’s interest in Company Z Italia SpA to the
Holding was agreed upon in the share purchase agreement. In accordance with
Art. 6 of this agreement, title to Company Z Italia SpA’s shares had to pass to the
Holding at the latest on date B-2 by the delivery to the Holding of the relevant
share certificates:
‘6. Completion
Completion shall take place on date B-2 at the latest at which time the
Parties intend title to both the A Shares [Company Z Italia srl] and the
B Shares [Company Z Italia SpA] shall pass to the Purchaser.
At completion, the Seller shall deliver to the Purchaser duly executed
transfers in respect of both the A Shares and the B Shares in favour of the
Purchaser or its nominees together with the relative share certificates in
respect of both the A Shares and the B Shares.’
In the instant case, title to First Respondent’s participation in Company Z Italia

SpA appears to have passed to the Holding when the transfer was filed with a
notary public and the certificates were endorsed to the Holding.
Reprinted from the Yearbook Commercial Artntration 367

[59] “Therefore, the Arbitral Tribunal finds that the substitution of First
Respondent by the Holding as a party to the MoU had to be effective the
dite of the filing with the notary public at the latest.”
3. Whether the Holding Timely Replaced First Respondent by An Assignment
[60] “The effectiveness of the waiver of Mr. X’s pre-emption right was in
particular dependent upon the dissolving condition that the Holding ‘succeed
to First Respondent as a Party to the MoU’ (Art. 3(1) of the Accordo). It is
common ground between the parties that, under Italian law, the contemplated
substitution had to be operated by way of an assignment of contract. In other
words, First Respondent (the assignor) had to assign all its rights and obligations
arising under the MoU to the Holding (the assignee). The parties also agree that
Mr. X (the assigned party) had authorized beforehand the assignment of the
MoU by concluding the Accordo and that, in such a case, Art. 1407 of the ItCC is
the relevant provision. Art. 1407 of the ItCC reads as follows:
‘If a party agreed beforehand that the other party would substitute itself a
third party in the contractual relationship, the substitution has efficacy
against such party only when it has been notified to it or when it has
accepted it.’
[61] “As the Italian Supreme Court has confirmed it, it follows from the above
provision that an assignment of contract authorized beforehand is not effective
unless and until it has been notified to the assigned party or the latter has
acknowledged it (Decision of the Italian Supreme Court of 25 August 1986):
‘Even when it has been previously authorized by one party, the assignment
of a contract does not materialize in respect to that party until it has been
notified to it or until that party has accepted it. As a matter of fact, the
assignment of a contract is a trilateral agreement, which requires the con-
sent of all interested parties, including the assigned party, in respect to
whom it is essential to know when the substitution operates to the effects
provided by Art. 1408.’
[62] “In the instant case, Mr. X authorized the assignment of the MoU by
concluding the Accordo. It remains to determine whether the MoU was assigned
to the Holding and, in the affirmative, whether such assignment was notified to
or acknowledged by Mr. X on or before the transfer of Company Z Italia SpA’s
shares to the Holding, i.e. on or before the date of the filing with the notary
public.

y

a. Was the MoU assigned?
[63] “It is common ground between the parties that First Respondent did not
expressly assign the MoU to the Holding. Therefore, the Arbitral Tribunal must
ascertain whether the MoU was tacitly assigned by means oi facta concludentia.
As observed by Respondents’ experts themselves, a tacit assignment of the MoU
would have had to be clearly and unequivocally understandable, including for
Mr. X who was party to the MoU:
r ‘Q. Let’s have a look at the substitution that Holdco had to do. So Holdco
?
■
had to substitute itself in First Respondent in the MoU. How could that
■
substitution be made? Was it necessary that such an assignment or a sub¬
stitution in the contract be done exclusively in writing?
A. Not necessarily in writing. This is a point I do not take in my opinion,
but in any case, it is a sufficient fact, behaviour, we call it “facta conclu¬
dentia".
Q. What do you mean by “facta concludentia”?
A. “ Facta concludentia” means by a behaviour which is understandable by
the other party, as if it is in consent or an expression of will.’
And further:
‘The Chairman: Let me rephrase my question. I would like to know

whether first this conduct has to be unambiguous, or can an ambiguous
conduct survive in a certain circumstance?
The Witness: No, it must be a conduct which is clear, I mean give evidence
to the fact that there is this will expressed by the conduct.
The Chairman: Let me just qualify my second question. What is really
relevant, if I understand well, is not so much the will of the party who
had some conduct as whether the other party would understand that con¬
duct, is that correct?
The Witness: Yes, it is correct.’
It thus appears that facta concludentia is amounting to a party’s conduct or mode

of action, which unambiguously points to a certain position so that another
party may justifiably rely on such conduct.
[64] “Respondents have argued that the Holding succeeded to First
Respondent as a party to the MoU by the mere effect of the share purchase
agreement.
[65] “This argument must be rejected. Respondents do not appear to press it
further in their post-hearing brief. As a matter of fact, as explained by an Italian

1
legal author, shareholders’ agreements do not bind subsequent purchasers of

shares in a company (F. Galgano, Diritto commerciale, Le società, Edizione
1995/96, Zanichelli Bologna, p. 174). Shareholder agreements have only effect
between contracting parties: they are binding only for the shareholders who
have signed them, with the exception of the subsequent buyers of the shares
and the subscribers of new shares, as well as the heirs, or in the case of mergers of
the new company; nor are they binding on third parties or on the company. Prof.
O, Claimant’s expert, confirmed the position under Italian law in the following
words:
‘Q. So in the case in hand, you categorically exclude that the substitution
may have been complete, may have been effective - realized, as a result of
the transfer of shares between First Respondent and Holdço?
A. I can exclude, what I can exclude is that the assignment of the partici¬
pation also had, as one of its effects, the assignment of the contract. These
are two quite different things to assignments. The assignments of the par¬
ticipation relates, as it indicates to the participation itself, whereas the sub¬
stitution is equivalent to the assignment of the contract, which is something
different.’
[66] “The Arbitral Tribunal wishes to make two additional observations in

this respect. The first one is that it would not have been necessary for Mr. X (or
his lawyer) to subject the waiver of his pre-emption right to the succession of the
Holding as a party to the MoU if such effect had followed from the mere transfer
of Company Z Italia SpA’s shares. The second one is that the purchaser of
Company Z Italia SpA’s shares was not designated in the Accordo, Art. 3(11)
of which provided that it had ‘to be selected exclusively among one of the
following parties: Company GHI, Company DEF, Claimant or any of their
parent companies, subsidiaries or affiliates pursuant to Art. 2359 of the Italian
Civil Code’ [ItCC]. Actually, the Holding, which was set up on date B-32, did
not exist at the time the Accordo was concluded.
[67] “The share purchase agreement may therefore not constitute a clear and
unequivocal conduct of the parties showing their intention to assign the MoU.
Moreover, Respondents have not shown that such conduct would have been
understandable for Mr. X and that Mr. X would have taken Respondents’ con¬
duct as a notification of the assignment.
[68] “In light of the above, the Arbitral Tribunal finds that the MoU was not
tacitly assigned to the Holding. Accordingly, there is no need to determine if, as
a matter of principle, as argued by Claimant, such a tacit assignment was pro¬
hibited by the MoU.”

. ... ■tv-.w3 tíü l . _afl3CBÿgw,A«waSB3igat :-3ÿ5££E33l ..'-reiS-W"*?
Etren î/ concluded, the assignment was not effective

[69] “Even if the MoU had been assigned to the Holding, such assignment
would not have been effective on the date of the transfer of Company Z Italia
SpA’s shares to the Holding.
[70] “As stated above, Art, 1407 of the ItCC requires that an assignment
authorized in advance be subsequently either notified to or acknowledged by
the assigned party. According to Respondents, the Holding notified Mr. X that
it had succeeded to First Respondent as a party to the MoU in the month
following date B. Thereafter, confirmations were sent to Mr. X twice later in
the relevant year.
[71] “Given that Company Z Italia SpA’s shares were transferred to the
Holding at the date of the filing with the notary public, it appears that the
assignment was not timely notified to Mr. X. However, Respondents have
argued that the notification had a retroactive effect as of the date of the transfer
of Company Z Italia SpA’s shares.
[72] “According to the above-quoted decision of the Italian Supreme Court,
the assignment of a contract ‘does not materialize in respect to that party until
[the assignment] has been notified to it or until that party has accepted it’. In
other words, the notification to the assigned party or its acceptance has a con¬
stitutive nature, which excludes that the assignment be effective retroactively.
[73] “The Arbitral Tribunal notes that a similar mechanism is enshrined in the
UNIDROIT Principles:
‘Clause 9.3.4 (Advance consent of the other party)

(1) The other party may give its consent in advance.
(2) If the other party has given its consent in advance, the assignment of the
contract becomes effective when a notice of the assignment is given to the
other party or when the other party acknowledges it.’
[74] “Respondents do not allege that Mr. X expressly acknowledged the

assignment of the MoU to the Holding. Yet, under Italian law, the assignment
of a contract by conclusive behaviour is excluded unless it has been brought to
the attention of the assigned party (Decision of 25 August 1986 of the Italian
Supreme Court):
‘The claimant, even though admitting such principle, sustains that the
acceptance by the assigned party does not require a particular form and
can be expressed by conclusive behaviour. According to the claimant, such
acceptance would have been in the present case manifested by the sisters
Gallo by receiving relevant advances paid by the cooperative and, in written

form, by signing receipts and exchanging correspondence before the

beginning of the litigation. Such arguments cannot be invoked in the pre¬
sent case because the Court of Appeal held, with a detailed motivation in
fact (and, as such, not subject to review by the present Court), that the
cooperative “La Famiglia” paid to the sisters Gallo the various advances on
the price without ever mentioning the alleged assignment of contract.
[75] “In the present case, the Arbitral Tribunal has reached the conclusion that
First Respondent and the Holding did not even enter into an assignment of the
MoU by facta concludentia. Accordingly, there is no need to determine whether
the assignment of the MoU was tacitly acknowledged by Mr. X.
[76] “In any event, none of the circumstances cited by Respondents would
constitute such tacit acknowledgment. Respondents first refer to the fact that
Mr. X met personally representatives of Claimant on three occasions in May of
the relevant year. The Arbitral Tribunal fails to see how acceptance of the
assignment of the MoU to the Holding could be inferred from the fact that
Mr. X attended these meetings. Beyond the fact that they all took place before
the transfer of Company Z Italia SpA’s shares to the Holding (and that Mr. X did
not attend the last of these meetings), they were all dedicated to general pre¬
sentations on the structure of the transaction for the acquisition of the First
Respondent Subsidiaries and on the financial status of the subsidiaries.
[77] “Respondents then cite the fact that, on date B-31, Respondents’ counsel
sent to Mr. X the share purchase agreement entered into by First Respondent
and the Holding. Again, the Arbitral Tribunal fails to see how acceptance by
Mr. X of the assignment of the MoU could be inferred from a letter addressed to
Mr. X to which he did not react. In addition, it appears that this letter was sent
prior to the transfer of Company Z Italia SpA’s shares and that the share
purchase agreement of date B-31 attached thereto was replaced by a new agree¬
ment concluded later in the relevant year. Finally, Respondents have not estab¬
lished that Mr. X ever received the above communication, which appears to have
been sent to the . .. office of Company Z Italia SpA and not in . . . where Mr. X
was located. Thus, on the day of the filing with the notary public, Mr. X
requested a copy of the share purchase agreement, affirming that he had
never received it before:
‘Upon receiving First Respondent Holding Limited letter, please note the
following:
1. Shareholding structure of First Respondent Italia: could you please send
me copy of the SPA, since up to now I have never received?
This is the first step to eventually proceed in the recording of the new
shareholder.’

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[78] “Respondents then rely on an electronic message sent in the month of
date B by Company Z Italia SpA’s financial director to Mrs. S [of Company
GHI] asking that Claimant, in its capacity of new shareholder, notify the bank
having issued patronage letters to enable the amendment of such letters The
only fact that could be inferred from this message is that Company Z Italia
SpA’s employees were aware early in the month of date B that the Holding’s
shares would be transferred to Claimant and, accordingly, that Claimant-
would become, through the Holding, the new majority shareholder of
Company Z Italia SpA. Nothing more can be inferred either from another
electronic message of the same month sent by Mr. X to Mr. E [of Company
a: DEF], providing him with information about the two Company Z Italia SpA
directors.
[79] “Respondents have also relied heavily on the fact that, at the shareholders’
meeting of Company Z Italia SpA held on date B-2, Mr. X appointed Mr. F [of
:ï : Company DEF] and Mrs. S members of the board of Company Z Italia SpA.
This meeting took place after the transfer of the shares of Company Z Italia SpA
to the Holding. Accordingly, even if Mr. X’s conduct at this meeting had estab¬
lished that he accepted the assignment of the MoU, it would not have been
sufficient for a timely succession of the Holding as a party to the MoU. The
Accorda stipulates that the Holding ‘shall succeed to First Respondent as Party
to the MoU as of the date of transfer of the Participation which shall be per¬
formed within date B’ (Art. 3(1)). Thus, the text of the Accordo requires a
simultaneous transfer of Company Z Italia SpA’s shares and of the Holding
succeeding to First Respondent as a party to the MoU.
[80] "Obviously, this requirement made a lot of sense as it was Mr. X’s
guarantee to remain protected under the MoU in spite of the Holding having
become a majority shareholder in Company Z Italia SpA. It would not be fit to
give too much weight to this grammatical argument as Mr. X was protected as of
date B-2, which was two days before the date B deadline (as resulting from the
Accordo). However, this arbitration shows that Mr. X could possibly have made
use of this apparent departure from the text requirement of the Accordo. The
minutes of this meeting would rather show that Mr. X did not hold the Holding
as the new majority shareholder of Company Z Italia SpA:
‘The chairman remarks and requires that it be noted in the minutes that the
shareholder First Respondent, holder of 51% of the share capital, is not
present. In accordance to An. 2369 of the civil code, the chairman declares
that the assembly is normally constituted.’
Remarkably, the only fact that could be inferred from the circumstances evoked
by Respondents is that Mr. X knew that First Respondent intended to sell its

inteirest in Company Z Italia SpA to the Holding, which shares would then be
sold to Claimant. If he did actually know that the Holding had acquired the
Company Z Italia SpA shares, which would not be unlikely in the circum¬
stances, nothing however points to his knowledge, even constructive, that either
the Holding or First Respondent had notified him the assignment of the MoU or
that he had accepted such assignment.
[81] “In light of the above considerations, the Arbitral Tribunal finds that
even if the MoU had been validly assigned to the Holding, the assignment
would not have been notified to or acknowledged by Mr. X so as to render
the substitution of First Respondent by the Holding as a party to the MoU
effective in due time.”
4. Claimant's Subsequent Conduct Is Irrelevant
[82] "Respondents then point at two different sets of facts, which would
denote that Claimant also considered that Mr. X’s pre-emption right had
been properly waived.
[83] “First, in the Italian proceedings, Claimant took the position that Mr. X
had accepted the assignment of the MoU to the Holding. Such a consideration is
irrelevant when it comes to determine whether, on the Closing Date, Mr. X’s
pre-emption right had been waived in accordance with the Accordo. All the more
so since the Italian proceedings are primarily concerned with the proper exercise
of Mr. X’s pre-emption right rather than with the intérpretation of Art. 3(1) of
the Accordo. Besides, the procedural position of the parties is totally different in
this arbitration and in the Italian proceedings, and justifies that different and
regrettably even contradicting stances be advocated by the parties.
[84] “Respondents then cite the fact that Claimant closed the transaction,
even though the SPA gave the exclusive ownership of Company Z Italia SpA’s
shares by the Holding the status of a condition precedent to the purchaser’s
obligations. That Claimant may have considered, on the Closing Date, that
Mr. X’s pre-emption right had been validly waived and, hence, actually closed
the transaction, is irrelevant when it comes to interpreting Art. 3(1) of the
Accordo and to determining whether the condition laid down by this provision
was met. Whether, from a subjective point of view, a party regards, rightly or
wrongly, a condition as having been met has no bearing on the actual accom¬
plishment of such condition, which is a mere factual issue. This situation
should not be confused with an entirely different scenario, where a party
deliberately closes a transaction knowing that a condition has not been met.
In this case, the party may be deemed to have ratified the non-fulfillment of the
condition by its conduct and, hence, be estopped from challenging the validity
of the Closing.”

a
l; CASE NO. 12745, 2005 ARBITRAL AWARDS
: 5. Estoppel
[85] “In their post-hearing brief, Respondents have argued that Mr. X was
foreclosed from exercising his pre-emption right at the end of the month of date
B. Hence, even if the waiver of Mr. X’s pre-emption right were to be considered
ineffective, Company Z Italia SpA’s shares were validly transferred to the
Holding before the Closing Date. Respondents’ position is based on the
following premises:
(i) Pursuant to Art. 7 of Company Z Italia SpA’s Articles of Association, the

pre-emption right must be exercised within 30 days from the date of the
acknowledgment of receipt of the registered letter offering the shares to
the other shareholders;
(ii) According to Italian case law, when the shares have been sold to a third
party without having been properly offered to the beneficiary of a pre¬
emption right, the latter must challenge the effectiveness of the sale and
declare its intention to buy the shares within the relevant period of
exercise, which starts running when the seller’s intention to transfer the
shares to a third party comes to its knowledge;
(iii) The beneficiary of the pre-emption right must not only challenge the
effectiveness of the transfer, but must declare its intention to buy the
shares. Such declaration must be made either in the writ of summons
challenging the transfer or, at the latest, in a separate statement within
the period of exercise fixed by the by-laws;
(iv) In the instant case, Mr. X knew at date B-31 that Company Z Italia SpA’s
shares had been sold to the Holding. Accordingly, he had to challenge the
sale and declare his intention to buy the shares on date B-l at the latest. At
any rate, Mr. X had to declare his intention to buy the shares at the latest 30
days after the service of his writ of summons.
[86] “Respondents have mainly based their case on a decision of 23 September

1991 of the Court of Milan, which reads as follows in relevant part:
‘In light of this principle, it must be said that the substantive interest an
omitted shareholder seeks to protect by seeking a court declaration of
ineffectiveness (or nullity) is the interest in acquiring the shareholding on
the same terms and conditions as those agreed between the selling share¬
holder and the third party purchaser. A court declaration finding that the
procedures laid down in the by-laws were not observed has sense only if
designed to set aside the previous transfer so as to place the omitted share¬
holder in a position whereby it can acquire the shareholding of the selling
shareholder through exercising the right of pre-emption.

Applying these principles to the case in point, this Court rules that the
plaintiff’s claim must be dismissed for lack of standing to bring suit. The
plaintiff has limited itself to claiming the violation of its right of pre¬
emption in that it did not receive from Mr. Trabujo the notice prescribed
by the pre-emption clause contained in Article 6 of the by-laws. The plain¬
tiff’s allegation is true since there is no proof that the letter of 27 June 1988
reached the plaintiff. But in the writ of summons served between 22 and 24
June 1989 the plaintiff stated that she knew that Mr. Trabujo had sold his
shareholding (equal to 90% of the share capital) to Mr. Domenico Caprioni
for the nominal sum of ITL 18 million.
It is this Court’s view that such definite knowledge is a valid equivalent
of the notice prescribed by the by-laws. It follows that the plaintiff either
through the writ of summons or an independent statement, could have and
should have manifested its wish to exercise its right of pre-emption to
acquire the shareholding of Mr. Trabujo within the 15-day period fixed
by the by-laws.
But this wish was never manifested by the plaintiff, neither through the
writ of summons, nor a subsequent independent statement nor at the time
of clarifying its claims in these legal proceedings, and hence the plaintiff s
entitlement to exercise the right of pre-emption has lapsed. Therefore, the
plaintiff’s action for voidness/avoidance is to be dismissed for lack of
standing to bring suit.’
[87] “Respondents’ position does not stand analysis. First, the above decision
is not authoritative in the present context. Admittedly, the Court of Milan holds
that the pretermitted shareholder that has no interest in buying the shares has no
standing to challenge the sale made in breach of its pre-emption right. It also
rules that such interest must be declared within the time limit prescribed by the
by-laws to exercise the pre-emption right, which starts running when the pre¬
termitted shareholder gains positive knowledge of the sale.
[88] “What it does not say, however, is that the sale made in violation of a pre¬
emption right must be challenged within such time limit. To the contrary, the
Court of Milan states that the pretermitted shareholder must be replaced in a
position ‘whereby it can acquire the shareholding of the selling shareholder
through exercising the right of pre-emption’.
[89] “Mr. X’s lack of standing for failure to exercise his alleged right of pre¬
emption is the very argument that Claimant, First Respondent and Company Z
Italia SpA raised in the Italian proceedings:
‘Therefore, date B-31 marks the commencement of the 30-day period envis¬
aged by Art. 7 of the by-laws and within which shareholders could exercise
376 Reprinted ftom the Yearbook Commercial Arbitration

S -
their rights of pre-emption. That period expired on date B-l without Mr. X
ever having manifested any wish to exercise the right of pre-emption
granted to him in the by-laws.’
[90] “However, the defending parties in the Italian proceedings did not argue,
as Respondents are doing now late in this arbitration, that Mr. X was foreclosed
from exercising his pre-emption right due to the elapse of the time limit set in
Company Z Italia SpA’s by-laws. The Italian appellate court, in its decision,
i- dismissed Mr. X’s summary proceedings on the grounds that he did not declare
his intention to avail himself of his pre-emption right, and not because he was
foreclosed from exercising his pre-emption right:
‘The fact that Mr. X complains that the company purchasing the shares
■
did not succeed in the shareholders’ agreement (the so-called MoU)

entered into among Company Z Italia’s shareholders is not relevant in
this case in point, according to the Judges, since he did not declare his
intention to avail himself of the right of pre-emption even in light of such
complaints.’
[91] “Yet, and according to the decision relied upon by Respondents, such
intention may be declared in the writ of summons whereby the pretermitted
shareholder challenges the sale or even in a subsequent statement made within
the time limit for the exercise of the pre-emption right. Applying these princi¬
ples to this case, it thus appears that Mr. X could have manifested his intention to
buy Company Z Italia SpA’s shares until 30 days after his writ of summons.
[92] “Second, even interpreting the above decision as suggested by
Respondents, it is far from certain that Mr. X would be deemed foreclosed
on date B-l. As a matter of fact, as stated above, Respondents have not estab¬
lished that the date B-l letter from law firm G, to which the date B-31 share
purchase agreement was attached, was ever received by Mr. X. It is noteworthy
that even Respondents acknowledge the likelihood that the foreclosure was
completed later in the relevant year.
[93] “In light of the above, the Arbitral Tribunal comes to the conclusion that
Mr. X was not barred from exercising his pre-emption right on the Closing
Date.”
6. Conclusion
[94] “The Arbitral Tribunal finds that the pre-emption right of Mr. X on First
Respondent’s interest in Company Z Italia SpA had not been waived on the
Closing Date.”

IV. BREACH OF DELIVERY OBLIGATION ( OBLIGATION DE

DÉLIVRANCE CONFORME )
(....)
[95] “Claimant submits that First Respondent undertook to deliver not only the
Holding’s shares, but also the shares in Company Z Italia SpA, themselves
providing effective control over a business having definite characteristics.
Respondents object that the shares in Company Z Italia SpA were duly delivered
before the Closing Date and that any promises made by Respondents as to specific
characteristics of the company were kept. However, Respondents’ first defence is
that, under French law, a share sale cannot be considered as a sale of the business
carried out by the company. Accordingly, the seller’s obligation to deliver is
limited to delivery of stock or, possibly, of a controlling interest in the company.
[96] “Therefore, the Arbitral Tribunal shall first ascertain whether Claimant
may, as a matter of law, rely on a breach of First Respondent’s delivery obli¬
gation in connection with the transfer of Company Z Italia SpA’s shares to the
Holding. Should the Tribunal answer positively this question, it shall then
determine whether First Respondent breached its delivery obligation.
[97] "Art. 1603 of the French Civil Code (FCC) provides that the seller
assumes two obligations, namely ‘celle de délivrer et celle de garantir la chose
qu’il vend'. Art. 1604 of the FCC specifies that the ‘délivrance est le transport de
la chose vendue en la puissance et possession de l’acheteur’.
[98] “French case law holds that the seller must deliver goods that fully con¬
form to the goal pursued by the purchaser (Cass. 1 civ., 20 March 1989, referred
to in Malaurie/Aynès/Gautier, Contrats Spéciaux, 13th ed., Cujas, Paris 1999,
no. 299, p. 215):
‘Attendu que l’obligation de délivrance ne consiste pas seulement à livrer ce

qui a été convenu, mais à mettre à la disposition de l’acquéreur une chose qui
correspond en tous points au but par lui recherché.’
[99] "As a corollary, the seller breaches its delivery obligation when the goods
delivered do not meet the specifications agreed upon by the parties (J. Pallusseau,
Note ad Cass, com., 12 December 1995, in [1996] 20 Recueil Dalloz Sirey 278):
‘En revanche, constitue une inexécution de l’obligation de délivrance con¬

forme la non-conformité de la chose vendue aux spécifications convenues
entre les parties, aux spécifications contractuelles. Le vice [caché] s’apprécie
par rapport à la destination de la chose, et la non conformité par rapport au
contrat. La délivrance d’une chose différente de celle convenue au contrat
constitue une violation de l’obligation de délivrance conforme.’

TTÿZT.ttT
----
I :
[100] “It is unquestionable that, in the instant case, the ‘chose vendue’ was the
Holding’s shares. Clause 2.1 of the SPA provides that (emphasis added):
‘2.1.1 Upon the terms and subject to the conditions of this Agreement
(including in particular the conditions precedent set out in Clause 4), the
Seller shall, with effect as at the Closing Date, sell to the Purchaser all of the
shares in the Company (the ‘Shares’) and the Purchaser shall, with effect as
at the Closing Date, purchase or have the Substituted Purchaser purchase,
all of the Shares from the Seller.’
K
The term ‘Shares’ is defined at Clause 1.1.1 of the SPA (Definitions) as ‘all of the
f
shares in the Company, existing as at the Closing Date, which will be sold by the
Seller to the Purchaser under this Agreement, AS referred to in Clause 2.1’
(emphasis added). Moreover, item 4 of the recitals specifies that ‘(t)he Seller
wishes to sell to the Purchaser and the Purchaser wishes to purchase from the
Seller all of its shares in First Respondent upon the terms and subject to the
conditions set out in this Agreement (said transfer and all the ancillary transac¬
tions set forth in this Agreement altogether are referred to as the “First
Respondent Transaction”)’ (emphasis added).
[101] “It is likewise undisputable and undisputed that, on the Closing Date,
First Respondent transferred 100% of the Holding’s shares to Claimant.
[102] “However, although the parties did not resort to a so-called ‘asset deal’,
in which specific assets of the target company are transferred, individually or as a
whole, to the purchaser, but to a so-called ‘share deal’, whereby the purchaser
acquires a controlling interest in the target company, the ultimate purpose of the
transaction set up by the parties was the transfer to Claimant of the advertising
business run by the First Respondent Subsidiaries. Therefore, the issue is
whether contractual representations made by Respondents in relation to the
substance of the business transferred should be taken into consideration
when determining whether First Respondent fulfilled its obligation to deliver.
[103] “This is a controversial issue, which has given and still gives rise to a
great deal of debate. In several decisions, French courts indeed have given con¬
sideration to the substance of the business transferred when requested to inval¬
idate share sales for a fundamental mistake of the purchaser. In particular, in
a decision of 17 October 1995, the French Cour de Cassation held (Cass, com.,
17 October 1995, in Recueil Dalloz Sirey, 1996, 12th Cahier, p. 167):
‘Mais attendu qu’ayant retenu que la Sté Novopac n’aurait pas traité si elle
avait connu l’indisponibilité du matériel constituant l’essentiel de l’actif
immobilisé de la Sté APS, sans laquelle l’entreprise ne pouvait avoir aucune
activité et à défaut duquel l’acquisition perdait toute substance, la cour

d’appel a pu déduire que cette erreur, portant sur les qualités substantielles
des parts sociales objet de la cession litigieuse, entraînait la nullité de la
convention. ... ’
[104] “In the wake of the above decisions, an author has suggested that the
seller’s delivery obligation could encompass the purchaser’s expectations as to
the underlying assets or business (J. Pallusseau, Note ad Cass, com., 17 October
1995, in [1996] 12 Recueil Dalloz Sirey 167, 171; see also J. Pallusseau, Garantie
de l’acquéreur du contrôle, in La prise de contrôle d’une société, RJ Com. 1998,
no. 44, p. 55):
‘On l’a déjà observé, assez curieusement personne n’a songé à appliquer
l’obligation de délivrance à la cession de contrôle. Or, si on la soumet au
droit de la vente, on ne voit absolument pas pourquoi, ni sur quel fondement,
on exclurait l’obligation de délivrance departs sociales ou d’actions dès lors
qu’on lui applique les autres dispositions du droit de la vente.
L’obligation du vendeur de délivrer à l’acquéreur une chose conforme à
ce qui a été convenu convient très bien à la cession de contrôle. En effet, dans
le protocole de cession, les caractéristiques des parts sociales ou des actions
cédées sont généralement décrites par rapport à la réalité socio-économique
de la société.’
[105] “At any rate, on 12 December 1995, the Cour de Cassation nullified a
decision of the Colmar Court of Appeal, which had held that the purchaser of
100% of the share capital of a company could rely upon the seller’s warranty for
hidden defects in relation to a defect affecting the hotel operated by the
company. The rationale of this decision is that the extension of the scope of
the seller’s obligation to deliver to encompass the substance of the business
transferred by operation of the share sale presupposes that one disregards the
basic principle that a corporate body and its shareholders or parent company are
separate and independent entities (Y. Guyon, Note ad Cass, com., 12 December
1995, in [1996] JurisClasseur ed. No 111513; [1996] 12 Recueil Dalloz Sirey,
277):
‘L’arrêt commenté est une nouvelle application de la position très ferme de la

chambre commerciale en matière de personnalité morale. La Haute juridic¬
tion estime que la sécurité dans les relations juridiques implique le rejet des
théories qui, se fondant sur la prise en compte des prétendues réalités écon¬
omiques, méconnaissent l’existence et les conséquences de la personnalité
morale des sociétés.
(ÿÿÿÿ)

«

Cette position doit être approuvée car la personnalité morale, qui fait
l’objet de mesures de publicité, constitue une apparence aisément vérifiable.
Au contraire, il est beaucoup plus hasardeux de prévoir les conséquences qui
résulteront d’un lever éventuel du voile de la personnalité morale.
(....)
La personnalité morale est peut-être une fiction, c’est-à-dire selon la for¬
mule de Gény, une altération voulue du réel conduisant à des résultats
utiles. . . . Mais rien n’oblige à constituer une société ou à acquérir des droits
sociaux plutôt que des actifs. Si l’on fait ce choix, il faut en accepter les
conséquences.’
[106] “It is true that the reasons of the above decision suggest that, under
specific circumstances, the seller’s warranty for hidden defects could apply to
a share sale (Cass, com., 12 December 1995):
'Attendu qu’en statuant ainsi, alors que la non-conformité des locaux aux
normes de sécurité ne constituait pas un vice affectant les actions cédées dès
lors que la société Hôtel de l’Esplanade a pu, en engageant des dépenses
supplémentaires, continuer à exercer l’activité économique constituant son
objet social, la cour d’appel a violé le texte susvisé.’
[107] “However, to date, the French Cour de Cassation has not followed this
route. As French legal authors confirm it, in the current state of French case law,
the purchaser of a controlling interest in a company may not rely on a breach of
the seller’s obligation to deliver in relation to such company’s underlying assets
(Malaurie/Aynès/Gautier, op. cit., no. 304, p. 218):
‘Une cession de droits sociaux (par ex.: des parts sociales ), ne constitue pas,
selon la jurisprudence dominante, la vente des biens faisant partie de l’actif
social de la société (par ex. un immeuble dans une S.C.I., ou un fonds de
commerce exploité par une société), même si la cession confère au cession¬
naire le contrôle de la société (et donc la maîtrise de l’immeuble ou des fonds
de commerce).’
[108] “It thus appears that French courts tend to adopt a restrictive approach
and to strictly enforce the principle that a corporate body and its shareholders
are separate and independent legal entities. In the case at hand, the ‘actif social’ of
the Holding is not limited to the shares of Company Z Italia SpA. Quite to the
contrary, the Holding acquired prior to the Closing Date participations in
various subsidiaries.

[109] “In addition to the objection derived from the above principle, one may
wonder whether the remedies for a breach of the seller’s delivery obligation are
at all available to the purchaser where, as in the present case, the seller has made
contractual representations and warranties of a similar scope. In this respect,
even authors who take the stance that a purchaser may rely on the remedies or a
breach of the seller’s delivery obligation in relation to a share sale appear to
consider that this is only possible in the absence of contractual warranties to the
same effect, unless such contractual warranties are taken as merely characteriz¬
ing the seller’s delivery obligation (J. Pallusseau, op. cit., no. 32, p. 51):
‘OK le voit, les garanties conventionnelles ne sont pas sans poser des pro¬
blèmes importants et donc une certaine insécurité. Déplus, que peut-on faire
quand il n’y a pas de garanties conventionnelles ou qu’elles sont obscures ou
insuffisantes? La solution n’est-elle pas de rechercher dans le droit de la
vente des mécanismes de protection de l’acquéreur?’
And further (Ibid., no. 40, p. 53):
‘A la limite, on pourrait dire: - que les déclarations et affirmations du cédant

dans la garantie conventionnelle actuelle ne constituent rien d’autre que
l’aménagement conventionnel de l’obligation de délivrance conforme
( sous l’étiquette "garantie”). . . . ’
[110] “In the Arbitral Tribunal’s opinion, there are however conceptual objec¬
tions this reasoning. Significantly, if the legal warranty did bear upon the
to
underlying assets of a corporation, the contractual representations in this regard
would be unnecessary.
[Ill] “In light of the above considerations, the Arbitral Tribunal finds that
Claimant may not rely on an alleged breach of First Respondent’s obligation to
deliver. Therefore, the question whether First Respondent effectively failed to
deliver Company Z Italia SpA’s shares to the Holding may be left open at this
stage. Consequently, the Arbitral Tribunal shall dismiss Claimant’s motion that
‘Company Z International failed to deliver to Claimant (through the Holding)
effective control over Company Z Italia SpA\”
V. BREACH OF THE OBLIGATION TO WARRANT TITLE TO THE

GOODS SOLD ( GARANTIE D' ÉVICTION)
(....)
[112] “Claimant argues that First Respondent’s failure to provide a valid waiv¬
er of Mr. X’s pre-emption right on its shares in Company Z Italia SpA enabled

-TZ*ttZ3jS2S&¿22i
I 1I
1 him to challenge in court the Holding’s title to such shares, Hence, the argument
follows, Company Z Italia SpA’s shares were not transferred free of any liens.
According to Claimant, that constitutes a breach of both the seller’s obligation
to warrant title to the goods sold (‘garantie d’éviction’) and of specific contrac¬
tual representations made by Respondents. Respondents’ primary objection is
that Claimant may not avail itself of the statutory garantie d’éviction, which
would not apply to the shares in Company Z Italia SpA.
[113] “The Arbitral Tribunal has found above that Mr. X’s pre-emption
right was not properly waived on the Closing Date. Therefore, the Arbitral
Tribunal shall now first ascertain whether Claimant may, as a matter of law,
rely on the garantie d’éviction. It shall then determine separately whether such
facts also amount to a breach of the contractual representations made by
Respondents.
[114] “Under French law, further to its obligation to deliver the goods sold,
the seller assumes two main obligations. The first one is to warrant title to these
goods (‘garantie d'éviction’) (Arts. 1625 and 1626 of the FCC) and the second
one is to warrant that these goods are free of defects. It is common ground
between the parties that the garantie d’éviction covers encumbrances resulting
both from personal actions of the seller and third party claims, and that the
present case is only concerned with the latter situation.
[115] “In relation with third party claims, the scope of the seller’s warranty
obligation is however restricted to legal actions (‘troubles de droit’) the origin
of which already existed before the sale (Malaurie/Aynès/Gautier, op. cit.,
no. 355, p. 246):
‘La garantie que le vendeur doit a l’acquéreur contre les tiers a un domaine
plus restreint: l’acquéreur n’est pas un incapable, le vendeur n’est pas son
tuteur. Aussi, la garantie suppose-t-elle que le trouble avait une cause anté¬
rieure à la vente, et surtout, que le trouble soit un trouble de droit.
D’une part, le vendeur ne garantit pas les évictions dont la cause est
postérieure à la vente. La garantie suppose.une faute du vendeur, c’est-à-
dire que la cause d’éviction doit être antérieure à la vente.
D’autre part et surtout, le vendeur ne doit pas non plus garantir l’acquér¬
eur contre les troubles de fait provenant des tiers. Il ne doit protéger
l’acquéreur contre les tiers que s’il y a eu un trouble de droit antérieur à
la vente. .. .’
[116] “In this case, it is undisputed and undisputable that Claimant relies on a
trouble de droit, the origin of which existed before the Closing Date. However,
such trouble de droit affected the shares in Company Z Italia SpA which, as
correctly pointed out by Respondents, were not the subject matter of the SPA.

The question is therefore whether the garantie d'éviction owed by First

Respondent applies to the Holding’s underlying assets.
[117] “The answer is undoubtedly negative. As noted above (see supra [at
[108]]), French courts tend to adopt a restrictive approach and to strictly enforce
the legal independence existing between a corporate body and its shareholders.
As a French legal author expresses it (J.-J. Daigre, Commentary of CA Paris,
First Chamber, Sect. A, 28 June 1999, in Bull. Joly Sociétés, December 1999,
pp. 1184-1185):
‘Pour autant, il y a un lien évident entre les droits sociaux et le patrimoine

social, l’acquisition des premiers n'ayant aucun autre intérêt que de permet¬
tre d'exercer un pouvoir sur le second et d'en tirer les utilités économiques.
Ce que l'on achète, en acquérant des droits sociaux, c'est un bien, les titres, et
un pouvoir, sur les actifs de la société.
Mais ce pouvoir est considéré abstraitement et de manière générale. Dès
lors, quelle que soit la composition du patrimoine de la société, il existe par
principe. Ce n'est donc que lorsque la société est en réalité démunie de tout
moyen d'exploitation, soit pour des raisons matérielles, soit pour des raisons
juridiques, que le pouvoir est atteint parce qu'il y a défaut absolu. Ce n’est
qu'en cette hypothèse que la cession manque son objet et peut être annulée.
D'où la position manichéenne de la jurisprudence: tant qu’il y a une
possibilité de poursuivre ou de relancer l'activité ou d’accomplir l'objet
social, les titres confèrent le pouvoir de principe auquel ils permettent de
prétendre. Qu’il présente plus ou moins d’intérêt par rapport à ce qu'il était
précédemment est indifférent, au moins dans la conception juridique
actuelle.’
[118] “There is however an exception to the above principle. Thus, the Paris
Court of Appeal has ruled that the garantie d’éviction could be relied upon in
relation to the underlying assets of a company in circumstances where the
achievement of the corporate goal appears to be definitely compromised (CA
Paris, First Chamber, Sect. A, 28 June 1999):
‘Mais considérant que, s’agissant d’une cession d'actions, le principe de la

personnalité morale fixé par l’Article 5 de la loi du 24 juillet 1966 s’oppose à
ce que soit reconnu à l’associé un quelconque droit de propriété sur les actifs
sociaux; qu’il s’ensuit que la garantie d’éviction ne peut jouer que dans les cas
où l’éviction trouble l’objet même de la vente, c’est-à-dire l’usage des droits
sociaux vendus, ce qui suppose que la poursuite de l’activité sociale ou la
réalisation de l’objet social s’avèrent impossibles.

[119] “One should therefore find out whether Mr. X’s challenge of the validity
of the transfer of Company Z Italia SpA’s shares to the Holding made it impos¬
sible for the latter to achieve its corporate goal.
[120] “This does not seem to be alleged by Claimant. Rightfully. The scope of
the transaction concluded between the parties was not restricted to the Italian
subsidiaries, but encompassed 24 subsidiaries located in 13 countries (see
Schedule A to the SPA). Therefore, the mere fact that Mr. X challenged in
court the validity of the transfer of the shares in Company Z Italia SpA was
not up to preventing] the Holding from carrying its corporate goal. For this
reason, the garantie d’éviction does not apply to the transfer of the shares in
Company Z Italia SpA.
[121] “There is one further objection that disposes of Claimant’s reliance on
the garantie d’éviction. Under French law, éviction stricto sensu is suffered only
once the third party claiming title to the goods sold has succeeded in court
Sv (Malaurie/Aynès/Gautier, op. cit., note 9, no. 356, p. 247):
‘En son sens strict, l’éviction est une défaite en justice, la perte d’un droit par
un jugement: elle suppose que l’acheteur est condamné en justice à délaisser
tout ou partie de la chose vendue au tiers qui l’a poursuivi en justice.’
[122] "While it is true that French courts have slightly tempered the above rule
by holding that eviction could exist even without a final judicial adjudication, it
remains that the third-party claim must be indisputable and that the purchaser’s
fears of an eviction must be legitimate (ibid.):
‘Un premier élargissement s’est produit; écartant un légalisme excessif, la

jurisprudence a admis que l’éviction pouvait exister même en l’absence de
jugement: la garantie est engagée lorsque le tiers a engagé une procédure
contre l’acquéreur, que sa prétention est incontestable et qu’il existe donc
pour l’acquéreur un juste sujet de craindre une éviction.’
[123] “The Italian court dismissed the action initiated by Mr. X in summary
proceedings, holding that:
‘ ... the preliminary exception raised by all three defendants with regard to
Mr. X’s lack of interest in starting an action in order to achieve a judgment
of nullity and/or ineffectiveness of the transfer deed at issue, seems to be
grounded. Indeed, the shareholder’s power to have judicially declared the
nullity and/or ineffectiveness of the transfer deed, made in breach of his
right of pre-emption, seems to be exclusively aimed at the application of
such right, the only possible juridical situation; consequently, the action

started by the shareholder cannot be merely aimed at preventing the pur¬

chaser from entering the corporate structure. ... In this case in point, not
only has the plaintiff never requested the transfer in his favour of the shares
purchased from First Respondent Holding/Claimant on the terms of
purchase effected by the latter, but also he has never showed his intention
to purchase them on such condition, nor ever declared that he intends to
purchase them on the same conditions.’
This ruling was upheld by the Italian appellate court:
‘The fact that Mr. X complains that the company purchasing the shares did
not succeed in the shareholders’ agreement (the so-called MoU) entered
into among Company Z Italia’s shareholders is not relevant in this case in
point, according to the Judges, since he did not declare his intention to avail
of the right of pre-emption even in light of such complaints.
(....)
If one admits that the shareholder may consider the transfer of shares, of
which he was aware, as null, due to a breach of the pre-emption right,
though the same has not been exercised, such reference would bean exercise
of a mere clause of approval, i.e. the power to censure or not a transfer
where the transferor does not meet its approval, neither provided for in the
corporate agreement nor claimed.
Such remarks enable the Judges to conclude that the “fumus boni iuris”
of the claim filed by Mr. X does not exist and, therefore, the measures
invoked in the claim may not be accepted.’
[124] "Although this decision does not prejudge of the outcome of Mr. X’s
legal action on the merits, it does suffice, in the Arbitral Tribunal’s opinion, to
conclude that Mr. X’s claim could not be deemed undisputable and of such a
nature as to justify legitimate fears of éviction on the part of Claimant.
Therefore, the Arbitral Tribunal shall dismiss Claimant’s claim that First
Respondent breached its obligation to warrant title to the goods sold and
Respondents’ claim that the proceedings be stayed pending the outcome of
Mr. X’s legal proceedings before the Italian court.”
VI. BREACH OF REPRESENTATIONS AND WARRANTIES
[125] “Based on the same premise that Mr. X’s pre-emption right was not
properly waived on the Closing Date, Claimant has alleged that First

---
j CASE NO. 12745, 2005 ARBITRAL AWARDS

Respondent breached its obligation to warrant title to the goods sold and that
Respondents breached certain contractual representations. The Arbitral
Tribunal has found above that, as a matter of law, Claimant may not avail itself
of the garantie d’éviction. It shall now determine whether Respond ents
breached certain contractual representations regarding Company Z Italia
SpA’s shares. . . .
[126] “Claimant maintains that the non-waiver of Mr. X’s pre-emption right
on the Closing Date constitutes a breach of contractual representations and
warranties made by Respondents.
[127] “Claimant first relies on Art. 5 of the share purchase agreement between
i,
First Respondent and the Holding, which stipulates as follows:
'Pursuant to the agreement (“ accordo”) entered into by the Seller and Mr.
■H.
X, all pre-emption rights and standstill commitments have been waived, so
that the Shares are freely transferable.’
The above provision is of no avail to Claimant, which is not party to the

Holding/First Respondent share purchase agreement. Whilst Claimant could
have caused the Holding - which it now controls - to rely on this agreement and
to enforce it against First Respondent, it has not chosen this specific course of
action.
[128] “This being said, a similar representation was made in Art. 4.1.6 of
Schedule 8 to the SPA:
‘The Company [the Holding] has full, valid and exclusive ownership of the
shares and securities in the First Respondent Subsidiaries as listed in Dis¬
closure Schedule 4.1.6. Except as stated in Disclosure Schedule 4.1.6, these
shares and securities have not been redeemed and they are free and clear of
all Liens. These shares and securities represent the percentages of capital,
voting rights and dividend rights in each of the corresponding companies as
stated in Disclosure Schedule 4.1.6’ (emphasis added)
It is undisputable - and undisputed - that the above representation directly

applies to the shares in Company Z Italia SpA, which was one of the ‘First
Respondent Subsidiaries’ (see Schedule A to the SPA).
[129] “It remains to be determined whether, on the Closing Date, the Holding
actually had full, valid and exclusive ownership of Company Z Italia shares,
being recalled that, according to Claimant itself, the conclusion of the Holding/
First Respondent share purchase agreement was sufficient to transfer ownership
of these shares to the Holding.
v
[130] “Both parties appear to agree that a sale made in violation of a pre¬
emption right is subject subsequent annulment. In a case referred to by
to
both parties, the Court of Milan thus held that:
‘But the shareholders also have standing to protest against the transfer of a
company shareholding made by a fellow shareholder in breach of the pre¬
emption clause, since this breach involves an infringement of the individual
right-interest to be preferred to third parties in the purchase of the share¬
holding that the fellow shareholder intends to transfer. It is thus a question
of establishing which civil law sanction should follow the infringement of
this right. Since the real effect (according to the prevailing and preferable
opinion) of the pre-emption clause contained in the by-laws involves:
(i) its enforceability also against third party purchasers and

(ii) the limitation of the power of the shareholder to freely dispose of his
shareholding
it follows that a breach of it does not lead to the nullity (herein prevented by
(a) the fact that nullity applies solely in case of a breach of the mandatory
rules of law and not also contractual agreements, and (b) the consideration
that the lack of power can only be asserted by the transferor and not also by
third parties) but rather to the ineffectiveness of the transfer agreement,
ineffectiveness that the shareholders can legally assert before courts.’
[131] “In this case, Respondents failed to properly cause Mr. X to waive his
pre-emption right. As a result, on the Closing Date, there was a possibility that
Mr. X would challenge thesale of Company Z Italia SpA’s shares to the Holding
(which actually happened) and that such sale be declared ineffective (which may
still happen).
[132] “Therefore, the Arbitral Tribunal finds that, on the Closing Date, the
Holding had not full, valid and exclusive ownership of Company Z Italia SpA’s
shares.
[133] “For the same reason, Company Z Italia SpA’s shares may not be
deemed to have been sold ‘free and clear of all Liens’ on the Closing Date as
represented by Respondents.
[134] “In the Black’s Law Dictionary, ‘lien’ is defined as a ‘charge or security
or encumbrance upon property’ (Black’s Law Dictionary, 5th ed., West, p. 832).
In turn, the term ‘encumbrance’ is characterized as a ‘claim, lien, charge or
liability attached to and binding real property’ (Ibid., p. 473). Be it as it may,
the parties had a farther-reaching common view of the ‘Lien’ which, according
to Clause 1.1.1 of the SPA includes among others any ‘security interest,
388 Reprinted from the Yearbook Commercial Arbitration -

I"
I
!ÿ mortgage, lien, pledge, charge, encumbrance, easement, claim, privilege, cove¬
nant, agreement, option, undertaking, retention of title clause, limitation or
I restriction of any kind, right of first offer, right of pre-emption or other third
party right, that has the purpose or the effect of restricting in any manner the
ownership, use or transferability of any asset, right or security’. Obviously, the
1
?
pre-emption right of Mr. X constituted such an encumbrance on the Holding’s
ownership of Company Z Italia SpA’s shares.
[135] “It remains to assess the bearing on Respondents’ liability of the dis¬
closures made by Respondents prior to contracting.
5.' [136] “Representations are usually drafted in general terms and exceptions to
them are often agreed upon by the parties and recorded in disclosures. For
example, when the seller is asked to represent that a company is not affected
by any legal dispute but this is not true, then, instead of amending the terms of
the general representation, the seller will disclose details of all relevant disputes.
3' If the buyer accepts the disclosure, it will operate to exclude the seller’s liability
under the general representation in respect of the specific disputes disclosed.
[137] “The effect of a disclosure on Respondents’ liability is determined in
Clause 8.1.3 of the SPA:
‘8.1.3 All Representations and Warranties (except for the Z Contribution)

are made subject to any matter which is disclosed in Schedule 8 or any of the
shall thus not be liable in respect of any Claim (except for the Company Z
SA Contribution) to the extent that the relevant actions, facts or events
giving rise to the Claim were disclosed in Schedule 8 or any of the Disclo¬
sure Schedules or in Part A of the Disclosure List. Any disclosed matter
shall limit the contents and scope of such Representations and Warranties
(except for the Z Contribution) to the extent that such matter has been
properly disclosed in the Disclosure Schedule (contents and, where appli¬
cable, amount) or in Part A of the Disclosure List.’
[138] “In the instant case, both the MoU and the Accordo were shown to
Claimant in the Data Room. The MoU and the Accordo were also listed in
Pan A of Schedule l.l.l.(b2) ‘Disclosure List’ to the SPA entitled ‘General
Exceptions to the Representations and Warranties’. ‘Disclosure List’ is defined
in the SPA as ‘the list of documents set forth in Schedule 1.1.1.(b2), of which Part
A constitutes exceptions to the Representations and Warranties’ (Clause 1.1.1 of
the SPA).
[139] “It is thus undisputable that ‘the relevant actions, facts or events’ giving
rise to Claimant’s breach claim were disclosed prior to contracting. Hence,
Company Z Italia SpA should be excluded from the scope of the representation

that, on the Closing Date, the Holding would have full, valid and exclusive
ownership of the shares in the First Respondent Subsidiaries.
[140] “This is the conclusion that one should have reached if Respondents had
only disclosed the existence of Mr. X’s pre-emption right. In such a case,
Claimant would certainly be barred from advancing a breach of warranty
claim in relation with Company Z Italia SpA’s shares. However,
Respondents went far beyond that. Not only did they disclose the MoU, but
also the Accordo, from which Claimant could legitimately infer that Mr. X’s pre¬
emption right would be waived on the Closing Date.
[141] “Respondents also confirmed that an agreement had been entered that
provided for the waiver of such right (see Disclosure Schedule 4.1.6 to the SPA
(‘Shareholdings’)):
‘A new Memorandum of Understanding (“Accordo”) has been entered

which provides for the waiver of X’s pre-emptive rights (copy attached
hereto).’
Besides, it is noteworthy that the Holding’s ownership of the shares in the First
Respondent Subsidiaries was not only represented by Respondents, but also given
the status of a condition precedent to Claimant’s obligations under the SPA
(Clause 4.2.4). As stated above, the fact that Claimant nevertheless closed the
transaction is irrelevant. As a matter of fact, the above disclosure gave Claimant
the necessary comfort that, on the Closing Date, this condition would be fulfilled.
At the hearing, Mrs. L [of Company GHI] confirmed that, in Claimant’s mind,
the waiver of Mr. X’s pre-emption right was taken for granted:
‘Mme L: Non, la réponse est non. D’après mon souvenir, j’ai dû participer, je
pense, à une première réunion d’introduction avec la personne qui avait
conduit la négociation dans le mois qui précédait, puis, à la deuxième
réunion, au début de cette réunion M. V est venu en nous disant: cela y
est, nous avons un accord avec M. X, c’est bon, donc il n’y a plus de souci
du côté de l’Italie.
Je pense que c’est un des seuls moments dans ces réunions de négociation
ou le point a été évoqué, il nous a indiqué qu’il avait eu une réunion dans la
semaine avec M. X et qu’il avait signé un accord avec lui qui levait les
éléments concernant les problèmes que l’on pouvait avoir liés à cet action¬
naire minoritaire mais très significatif.’
[142] “Art. 1582 of the FCC defines a sale as the agreement whereby a party
agrees to deliver a good and the other party to pay for that good. As a matter of
French law, the seller will transfer title to the good sold and will have to comply

-ÿ--
.......
— -SI52AáúV* ■
•.-•ni SSKVíBSBK;
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1
F
l with ancillary obligations such as the delivery (Art. 1604), warranties against
eviction (Art. 1626 et seq.) or defects (Art. 1641 et seq.). Moreover, Art. 1602 of
the FCC calls upon the seller to explain clearly to what he agrees to oblige
himself:
I
$ ‘Le vendeur est tenu d’expliquer clairement ce à quoi il s’oblige. Tout pacte
obscur et ambigu s’interprète contre le vendeur.'
[143] “This is quite to the point. In so-called M&A transactions, the seller
knows that the buyer intends to purchase an interest in a company and not a
litigation. Even without interpretation to the expense of the seller as directed by
Art. 1602 of the FCC, it seems clear that the disclosures made by Respondents
gave the necessary comfort that Mr. X would have validly waived his pre-emp¬
tion right and thus would not exercise such right. What Respondents are guar¬
ft: anteeing is precisely that Mr. X will not call the validity of the sale of Company
Z Italia SpA’s shares into question. In other words, it was Respondents’ obli¬
gation to avoid any loopholes that Mr. X could use, possibly with a certain
amount of bad faith, to jeopardize the acquisition. Therefore, Respondents
may not take refuge behind disclosures to disclaim their liability.
[144] “In light ôf the above, the Arbitral Tribunal finds that Respondents
breached the representation made in Art. 4.1.6 of Schedule 8 to the SPA.”
VII. OTHER BREACHES
(....)
1. Seller’s Obligation to Manage as a 'Bon Père De Famille'
[145] “Clause 6.3 of the SPA reads as follows:
‘6.3.1 Between the date of this Agreement and the Closing Date, the Seller
shall, and shall cause the Company and each of the Subsidiaries to conduct
their respective business only as a bon père de famille in the ordinary course
of business, except as may be requested by the Purchaser or contemplated
in this Agreement and to use its commercially reasonable efforts to preserve
their respective business and the relationships with employees, suppliers
and customers.
6.3.2 The Seller undertakes from the date hereof and until the Closing Date:
(a) to provide adequate funding to the Subsidiaries, it being specified that
the Seller has already provided €... at the date hereof and shall

provide €.. . within the five (5) days following the date hereof; for
indicative purposes it is also specified that the funding requirement is
estimated to be € 6,211,000 for the First Respondent Subsidiaries
between . . . and date B, and
(b) to obtain prior approval of the Purchaser on the terms pursuant to
which any funding (other than incurred in the ordinary course of
business) is to be provided by the Company to any Subsidiary and
in particular the repayment of bank loan or the recapitalization of any
Subsidiary.’
[146] “The parties have conflicting views of the following three issues that
arise out of this provision:
(i) the time range of First Respondent’s obligation to fund Company Z

Italia SpA;
(ii) the contents of such obligation; and
(iii) whether Company Z Italia SpA’s funding needs were met.
The Arbitral Tribunal shall address these issues in turn.”
a. Time range of obligation
[147] “Pursuant to Clause 6.3.2(i) of the SPA, First Respondent undertook to

fund the First Respondent Subsidiaries ‘from the date hereof and until the
Closing Date’. Accordingly, First Respondent’s obligation was clearly limited
to the period starting on the date of the SPA and terminated on the Closing Date,
Le. date B-2.
[148] “Claimant’s submission that First Respondent’s obligation to provide
adequate funding to the First Respondent Subsidiaries started in two months
before already is groundless. This submission is based on the answer given by an
employee of the Bank, a Respondents’ advisor, to a question raised by Company
GHI two months before the date of the SPA:
‘Questions 2-5. If . . . the current shareholders of First Respondent . ..

reach a formal and binding agreement by the deadline stated in your
offer letter for the sale of the Target companies, the Vendors will take all
necessary steps to make sure that the operations of the Target companies are
funded until the Closing. If no agreement can be reached within this dead¬
line, the current shareholders of First Respondent will consider all the other
options available, including resuming the sale process of First Respondent’s
subsidiaries on a country by country basis.’

■ - ■5r aaaKS5B52 Ea 5a:
CASE NO. 12745, 2005

i ARBITRAL AWARDS
[149] "Nothing else can be inferred from this general statement made during
the negotiations of the SPA than the sellers5 accord in principle to fund the First
Respondent Subsidiaries between the date of the conclusion of the agreement
I formalizing the transaction and the Closing Date. In particular, this statement
l: may not be interpreted as the sellers5 undertaking to fund the subsidiaries as of
two months before the SPA. As a matter of fact, the Bank makes it clear that any
\ such undertaking shall start in that month ‘[i]f ... the current shareholders of
l First Respondent . . . reach a formal and binding agreement by a date in that
month5.
In any event, even giving to the above statement the meaning Claimant wants
to ascribe to it, First Respondent’sundertaking would have been superseded by
Î Clause 6.3.2 of the SPA. As a matter of fact, Clause 12.8.2 of the SPA clearly
specifies that the SPA ‘replaces and annuls any agreement, communication,
Í; ■
offer, proposal, or correspondence, oral or written, exchanged or concluded

between the Parties relating to the same subject-matter5.
[150] "Therefore, the Arbitral Tribunal reaches the conclusion that First
Respondent’s obligation to fund Company Z Italia SpA began on the date
the SPA was entered into and ended on the Closing Date.”
b. " Adequate funding ”
[151] “The parties have also conflicting views on the meaning of the expres¬
sion ‘adequate funding’, i.e. on the very contents of First Respondent’s under¬
takings. Claimant attempts to confer an extensive interpretation to this
expression. It thus argues that First Respondent undertook to provide
Company Z Italia SpA ‘with sufficient working capital in order to allow it to
maintain its portfolio of supplier agreements until the Closing’ (fn. omitted) or
‘with sufficient funding until Closing Date in order to allow it to preserve its
business’ (fn. omitted). Claimant appears to consider that First Respondent had
to make up for Company Z Italia SpA’s indebtedness at Closing Date (fn.
omitted). Respondents appear to consider that their obligation was limited to
the payment of the €3.5mio loan recorded in the Accordo.
[152] “The SPA does not define ‘adequate funding5. However, the intention of
the parties may be ascertained both from the nature of the business operated by
Company Z Italia SpA and from the parties’ conduct prior to the negotiations. It
is common ground between the parties that a characteristic of the market in
which Company Z Italia SpA operates is that operators, from which advertising
space is purchased, are paid in advance, whilst customers which buy such space
defer payment until the time at which the advertisement is actually shown. This
gap in the operating cycle means that companies active in the relevant field of
advertising brokerage have an enhanced need of cash and other liquid assets to

finante their everyday running of the business or, expressed in financial terms, a
high need of working capital. This is a first hint that ‘adequate funding’ was
intended to make up for Company Z Italia SpA’s chronic lack of working
capital, i.e. to enable it to meet its current obligations. In this respect, it is
noteworthy that shareholders’ loans, together with suppliers credit, bank over¬
drafts or lines of credit, are one of the mains sources of working capital.
[153] “The answer given by the Bank to questions raised by Company GHI at
the time the parties negotiated the SPA - upon which Claimant relied in support
of its affirmation that First Respondent undertook to fund Company Z Italia
SpA as of the month of the Accordo - confirms that ‘adequate funding’ was
considered as the financial support needed by Company Z Italia SpA to meet
its short-term obligations: ‘the Vendors will take all necessary steps to make sure
that the operations of the Target companies are funded until the Closing’. It is
noteworthy that the funds to be made available by First-Respondent were not
intended to reduce or cancel the indebtedness of the First Respondent
Subsidiaries, which was to be repaid as part of the post-Closing adjustments.
[154] “Finally, Claimant has argued that the cash crisis encountered by
Company Z Italia SpA was the result of First Respondent’s decision to divest
itself of its Italian subsidiaries and the resulting withdrawal of its financial
support. This may well be the case. However, these considerations are com¬
pletely irrelevant in the present context. Claimant knew what was Company Z
Italia SpA’s financial standing at the time it decided to proceed with the acqui¬
sition of the First Respondent Subsidiaries. It knew in particular that, due to the
specificities of the market in which it was operating or to an inappropriate
capital structure, Company Z Italia SpA was regularly incurring cash shortfalls,
which were compensated by First Respondent’s financial support.
[155] “This is precisely the reason why the parties agreed to introduce a
specific clause in the SPA providing for the seller’s obligation to fill in for
Company Z Italia SpA’s cash needs until the Closing. Mr. E:
‘The message coming out from the Italian business was consistent with the
message that was going out from some of the other target companies, which
was that there was an immediate funding issue. So clearly I went back and
discussed this with my colleagues and bosses at Company DEF. Clearly
this changed things significantly for us in a sense at the time, because it was a
real issue that needed to be addressed. And so the following week, I think it
was the month over the following week, there was an exchange of e-mails
between my colleagues on the Company GHI side of the due diligence
team and the vendors’ advisors, where basically we said: The funding
issue - there are severe cashflow difficulties in various territories, including
Italy, how do you propose that we address these issues? The reply came

;.:rT7?.7íTÿ7I-:-
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r back: We will fund these businesses. And that was then confirmed in meet¬
ings with the vendors later on in that week. The vendor made it clear when
we stated our position. We were not going to buy these businesses unless
is
the vendors address the funding issue pre-close. And if that was accepted, it
was accepted as a matter of principle, that the vendors would fully fund the
business pre-dose, and that, on the working capital front, they would
ensure that all businesses had sufficient funds to be able to pay all their
suppliers in time, so that when we acquired the company, there would be no
overdue creditors.’
* Then, Mr. E expressly confirmed that his understanding was that Company Z
Italia SpA would have sufficient cash to meet its needs in working capital:
;
The Arbitrator: May I ask you a question here ? When you say fully funded
and adequate working capital, what is the difference between these two?
The Witness: They mean the same thing. Fully funded, I think, was the
phrase that was used in some of the documentation. But the principle, as I
understand in the business sense, is that the business will have sufficient
cash to meet their working capital requirements, in other words, sufficient
cash to meet their payment requirements to suppliers. ... So that in really
what it means.’
[156] “In light of the foregoing considerations, the Arbitral Tribunal finds that
First Respondent’s undertaking to provide adequate funding to the First
Respondent Subsidiaries consisted in making available sufficient cash to fund
the Subsidiaries’ need of working capital until the Closing.”
c Whether the financial needs were met
[157] “The contemporaneous record establishes beyond any doubts that the
cash contribution needed by Company Z Italia SpA until the Closing amounted
to €3.5 mio. In an e-mail to First Respondent, Mr. X stated that the cash needs
of Company Z Italia SpA for the period of . . . through ... of the relevant year
amounted to €3.5 mio. At a meeting held early that year with representatives of
both Company DEF and Company GHI, Mr. X portrayed Company Z Italia
SpA’s financial standing as worrying and indicated that its need of financial
support could be estimated at € lmio in . . . and € 2.5mio over the months
of . . . and ... :
7/ a ensuite décrit la situation financière actuelle de Company Z Italia

comme étant très préoccupante, ses lignes de crédit étant utilisées à près de

95% et la soàété devant escompter son chiffre d’affaires chaque mois pour
éviter la cessation de paiement. Company Z Italia a actuellement un besoin
de financement de lm d’Euros fin. . . et d’environ 2.5m €en .’
As a side note, the Arbitral Tribunal observes that this contemporaneous doc¬
ument casts doubts on the accuracy of the testimonies of Mr. E and Mrs. L, both
of whom testified not remembering that Claimant had ever been informed of the
cash crisis encountered by Company Z Italia SpA before the SPA was signed.
[158] “Earlier in the relevant year, Mr. X and First Respondent entered into
the Accordo. In this context. First Respondent undertook to grant Company Z
Italia SpA a temporary advance in the form of a shareholder’s loan of a
maximum amount of € 3.5mio. Two months later, Mr. X communicated to
First Respondent the following cash forecast model, which clearly establishes
that Company Z Italia SpA’s negative cash balance amounted to €lmio at the
end of that month and € 3.2mio at the end of the following month, in other
words that the amount of cash needed from . . . through . . . was of € 3.2mio
(table omitted). [The table] also shows that, at the end of the preceding month,
Company Z Italia SpA had a positive cash balance of €724,035.
[159] “After the Closing, Mr. X confirmed that the €3.5 mio advance granted
by First Respondent had enabled Company Z Italia SpA to meet its ongoing
obligations until date B:
‘(3) Suppliers indebtedness. I want to confirm what I officially said several

times: Company Z Italia cash situation is really hard; we are losing suppli¬
ers, we are spoiling our relationships with relevant business centers and we
are losing our market image. The €3,5 mio financing has just solved our
financial temporary problems as at date B, and therefore our financial
structure problems have been just postponed.’
[160] “Claimant has objected that, on the Closing Date, Company Z Italia
SpA was still short of funds. According to the Independent Auditor’s report,
Company Z Italia SpA was short of funds in an amount of € 2,965,247 at
Closing Date, out of which €1,428,354 represented arrears due to suppliers.
[161] “At the hearing, Mrs. L confirmed that the advance paid by First
Respondent enabled Company Z Italia SpA to survive until the Closing:
‘Mme L.: Ces 3,5 millions étaient sans doute le résultat d’un compromis
entre M. X et M. V qui permettait à la société de survivre mais sans
doute pas de maintenir son activité future, donc, d’être gérée normalement,
c’est-à-dire de pouvoir renouveler ses contrats avec les grands [suppliers].

\
A
l
Í
Ils ont sans doute, avec 3,5 millions, assuré les échéances qui, si elles n’étaient
pas assurées, conduisaient au dépôt de bilan de la société.’
This is exactly the point. The fact that the amount of €3.5mio did not suffice to
avoid another cash crisis or did not enable to finance the growth of Company Z
Italia SpA’s business is irrelevant. As stated above. First Respondent undertook
to support the day-to-day operation of the company until the Closing. Nothing
more.
[162] “If the cause for Company Z Italia SpA’s demise is rooted in its funding
i1-
in whole or in part, then it thus appears that the true reason of Company Z
Italia’s collapse over the summer and fall of the relevant year lies in the lack of
financial support received by the company after the Closing and not in the
v
alleged inadequacy of the amount made available by First Respondent prior
to or immediately after the Closing Date:
i-
‘Mme L.: Sans doute, je pense que si nous avions été en mesure, dès [the
months following the Closing], de gérer directement les clients et de pre¬
ndre les rênes de la société, nous aurions sans doute pu construire cette
relation que nous construisons dans d’autres pays et avec des groupes
comme (Group I).’
[163] “Therefore, the Arbitral Tribunal considers that an amount of €3.5mio

was the adequate funding required by Company Z Italia SpA until the Closing.
As a side note, the Tribunal observes that this sum represents more than 50% of
the overall amount of funding both parties estimated would be necessary for all
the 24 subsidiaries included in the transaction (€6,211,000; Clause 6.3.2(i) of the
SPA).”
d. Whether the funding was made available
[164] “It is undisputable, and undisputed, that First Respondent paid the
€3.5mio temporary advance to Company Z Italia SpA, although with a slight
delay. Pursuant to the Accordo, Company Z SA had to pay this amount in two
instalments, the first one to be effected no later than eight working days from the
signing of the Accordo and the second one no later than date B. The advance was
actually paid as follows:
- € lmio in two months before date B;

- €850,000 two months later; and
- €1,650,000 four days after date B.

Claimant, which alleges that the delay incurred in the payment of the above
amount had dramatic consequences on Company Z Italia SpA’s situation, has
on the
failed establish that such four-day delay had any material impact
to
company’s situation. While Mr. X did complain earlier on that funding should
be forthcoming more rapidly, he apparently failed to supply Respondents with
the requested information as to Company Z Italia SpA’s exact immediate needs
and did not assert that the four-day delay had any material adverse consequences
on the operation.”
e. Termination of the supplier agreement
[165] “Clause 4.4.2 of Schedule 8 to the SPA provides that:
‘4.4.2 Supplier Agreements

Disclosure Schedule 4.4.2 identifies all . . . supplier agreements entered into
by the Company or First Respondent Subsidiaries. For the purpose of this
clause, “material supplier agreements” shall have the meaning referred to in
the paragraph (i) of the preamble to Clause 4.4. above.
All such . .. supplier agreements contain an exclusivity clause in favour
of the Company or First Respondent Subsidiaries.
None of the suppliers having entered into the above mentioned agree¬
ments with the Company or First Respondent Subsidiaries has notified its
decision to terminate such agreements prior to the normal contractual
expiring date provided by such agreements and, to the Seller’s knowledge,
there is no fact or circumstance, which are liable to result in the termination
of any such agreement prior to its normal contractual expiring date.
The “most favourable nation” terms contained in the Second
Respondent supplier agreements have been duly honoured.’
[166] “In the instant case, the Arbitral Tribunal has found that First
Respondent fulfilled its obligation to provide adequate funding to Company Z
Italia SpA. Even assuming that such obligation was breached, Claimant fails to
show that the termination or non-renewal of certain of the supplier agreements in
the fall of the relevant year was connected in any way with a cash shortfall as of
the Closing Date. It rather appears that First Respondent’s contribution remedied
as of the Closing Date Company Z Italia SpA’s cash shortfall, which revived in
the months following the Closing.”
f Withdrawal of financial support
[167] “Claimant has also alleged that, early in the relevant year, First
Respondent decided to withdraw the financial support provided to Company

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Z Italia SpA, which put the company in an almost irreversible situation of crisis
and deteriorated First Respondent’s relationship with Mr. X. In particular, the
argument follows: First Respondent decided not to renew certain bank guaran¬
tees and to stop funding the amounts due by Company Z Italia srl to the Group I
network, thus forcing Company Z Italia SpA to distract resources to be able to
make these payments.
[168] "It may well be the case that, having decided to restructure the group,
First Respondent’s shareholders decided to cease to financially support
Company Z Italia SpA or to reduce the extent of such support to the minimum
required. In particular, it appears that Company Z Italia srl’s debt towards
Group I was effectively transferred to Company Z Italia SpA, thus worsening
the latter’s financial situation. Mr. X’s report:
‘Month 1: the serious international crisis of First Respondent causes Group

I to renegotiate the commercial agreements with First Respondent in the
various European countries in which commercial agreements are in place;
in particular, in Italy, the guarantees offered by Company Z Italia srl are
considered insufficient, not only in respect of the amounts already owed
but particularly in respect of the amounts becoming due.
Month 2: the debt is transferred by Group I to Company Z Italia SpA,
which therefore finds that it has to meet huge unplanned financial liabilities,
and in payment periods not foreseen at all in the revised budget of
November of the year before. All this pain of termination of the contract
with Company Z Italia srl by Group I, with the consequent readily imag¬
inable financial harm.’
[169] “However, what is relevant here is whether Claimant, at the time of

contracting, had a clear and true picture of Company Z Italia SpA’s financial
situation. In this respect, Claimant’s allegation that ‘[t]he purchaser became
aware of such situation of crisis only after the signature of the Agreement’ (fn.
omitted) is in direct contradiction with the record. As noted above, Mr. X
drew the attention of Claimant’s representatives to the weak financial situa¬
tion of Company Z Italia SpA as early as early in the month of the Accordo,
describing such situation as ‘worrying’ and assessing Company Z Italia SpA’s
cash needs at €3.5mio through the month of date B. A few days later, Mr. E
(Company DEF) was provided with a copy of the due diligence report drawn
up by a consulting firm, in which it is specified that ‘[b]oth Company Z Italia
srl and Company Z Italia SpA seem to be on the verge of bankruptcy’.
The same statement was repeated in another draft report by another consult¬
ing firm.
[170] “More importantly, Claimant knew from the outset that Company Z
Italia SpA’s illiquid condition was not the consequence of a mere ephemeral
Reprinted from the Yearbook Commercial.Arbitration 399

crisis, but resulted from its very financial structure and, hence, that deeper
corrective actions would be necessary. Mr. X’s first report sent to Company
DEF:
‘To date, the financial requirements of our company for getting through
its immediate liquidity problems may be summarised as follows: (i)
€1,000,000 within end of the month of the Accordo; (ii) €2,500,000 within
date B.
In fact, based on the analysis of the company’s financial structure and of

its cash flow requirements, not only for the past but also for the future, it is
clear that until now we coped with the mismatch between cash outflows
and inflows by means of advances on invoices. Apart from reducing our net
profit, this is a restraint to the company’s growth. Our financial structure
instead should ensure liquidity sufficient to meet - if not altogether at least
in great part - the structural cash mismatch of our business.
The solution we believe feasible to solve the financial structure problem
outlined above, and which we are in part following, are: (i) reduction of the
cash flow mismatch; (ii) further medium-term loan for at least €3,000,000
or capital increase of at least €3,000,000.’
[171] “Finally, the Arbitral Tribunal notes that Company Z Italia srl’s debt
towards Group I was in any event charged by Company Z Italia srl to Company
Z Italia SpA, as Mr. X explains it in the very report quoted by Claimant in
support of its allegation that First Respondent withdrew its financial support
to Company Z Italia SpA:
‘Company Z Italia srl is an Italian company fully owned by Z International

SA which owns the rights and obligations deriving from the contract with
Group I.
Company Z Italia SpA operates the commercial management of Group I
on behalf of First Respondent, through Company Z Italia srl, as provided
by a contract between the parties.
Company Z Italia SpA has always paid Company Z Italia srl in accor¬
dance with the agreements between the parties, that is to say, in instalments,
and has borne the financial charges associated with payment in instalments.’
[172] “Therefore, even assuming, arguendo, that First Respondent ceased to

financially support Company Z Italia SpA early in the relevant year, Claimant
contracted with full knowledge of the facts, especially as to the desperate cash

■: ---si
needs of Company Z Italia SpA and the € 3.5mio commitment by First

Respondent.”
2. Seller's Obligation to Cause Management and Employees to Cooperate
[173] “Clause 6.2 of the SPA stipulates that:
‘6.2 Collaboration
Between the date of this Agreement and the Closing Date, the Seller shall
collaborate fully with the Purchaser and shall cause the Company’s man¬
agement and employees (as well as the management and employees of
each of the Subsidiaries, to the extent necessary) to collaborate fully with
the Purchaser in order to prepare and facilitate the change of control over
the Company and the Company’s integration in the Purchaser’s Group.’
[174] “Claimant contends (1) that First Respondent’s obligation to collabo¬

rate and cause Company Z Italia SpA’s management to collaborate extended
beyond the Closing Date and (2) that First Respondent breached this obligation.
Respondents dispute these allegations.”
a. Time range of obligation to collaborate
[175] “Claimant submits that First Respondent’s duty to collaborate and to

cause the First Respondent Subsidiaries to collaborate was not limited to the
pre-Closing period.
[176] “First and foremost, this submission is in direct contradiction with the
text of Clause 6.2 of the SPA, which expressly and unequivocally states that this
obligation is owed ‘[b]etween the date of this Agreement and the Closing Date’.
Claimant’s contention that the words ‘between the date of this Agreement and
Closing Date’ apply to First Respondent’s own obligation but not to the man¬
agement of the First Respondent Subsidiaries is not supported by the grammat¬
ical interpretation of this provision.
[177] “The fact that, pursuant to the transaction set up by the parties, First
Respondent would not have any means to control the management of the First
Respondent Subsidiaries after the Closing is also in opposition with Claimant’s
interpretation. The use of the words ‘shall cause’ - which, in accordance with
Clause 1.2.5 of the SPA, must be interpreted as the expression of the parties’
intention ‘to refer to the French law concept of “porte-fort’” - would rather
reinforce this finding rather than contradict it. Indeed, it appears very unlikely
that First Respondent would have accepted to assume such a stringent obligation
Reprinted from the Yearbook Commerciai Arbitration 401

knowing that it would have no means to ensure its fulfillment after having lost
and tránsferred the control of Company Z Italia SpA and the other First
Respondent Subsidiaries.
[178] “Finally, an obligation to collaborate during the pre-Closing period is
not unusual in M&A transactions. As a matter of fact, such transactions are not
exhausted by the mere conclusion of the contract, on the one hand, and the
closing, on the other, and numerous operations must be carried through in
the meantime, which require the collaboration of the subsidiaries’ management.
The purpose of the parties is to have seller deliver to purchaser companies which
are run efficiently, without effecting any abnormal operations (not in the
ordinary course of business) so that, at closing, the latter will acquire what it
negotiated and is paying for. Obligations or representations of the seller surviv¬
ing closing are unusual and usually specifically mentioned (see especially Clause
10 of the SPA). In this case, such pre-closing operations involved in particular
the sale to the Holding of First Respondent’s interest in its subsidiaries.
[179] “Therefore, the Arbitral Tribunal finds that First Respondent’s obliga¬
tion to collaborate and to cause the management of the First Respondent
Subsidiaries to collaborate with Claimant was limited to the pre-Closing
period.”
b. No breach of obligation
[180] “Claimant’s contention that First Respondent breached its obligation to

collaborate and to cause Company Z Italia SpA’s management to collaborate is
wholly unsubstantiated. As a matter of fact, Claimant merely refers to Mr. X’s
e-mail to Mrs. S [of Company GHI], in which he asserts that '[t]he Company Z
Italia SpA’s major shareholder was First Respondent and it is still First
Respondent since up to now I’ve not been informed of any sale of shares’.
Besides the fact that this mail was sent after the Closing and, hence, is not
relevant, it relates to the most debated question in this case in which Mr. X
was personally involved, namely the waiver of his pre-emption right, and, as
such, is not conclusive as to the issue whether First Respondent fulfilled its
collaboration obligation.
[181] “Furthermore, Respondents have convincingly demonstrated that, ‘to
the extent necessary (Clause 6.2 of the SPA), the management of Company Z
Italia SpA duly collaborated with Claimant and its shareholders, both before the
conclusion of the SPA and over the pre-Closing period: (i) prior to the conclu¬
sion of the SPA, a meeting was held in . . . between representatives of Company
DEF and Company GHI and the management of Company Z Italia SpA.
On this occasion, Mr. X depicted the financial situation of Company Z Italia

Í
SpA; (ii) during the pre-Closing period, Mr. X met Mr. F and Mrs. S
in . . • and discussed Company Z Italia SpA’s financial situation; (iii) at a meet¬
ing held in ... the CFO of Company Z Italia SpA made a presentation of
Company Z Italia SpA to Claimant’s management; (iv) shortly before date B,
Mr. X communicated to Mr. E (Company DEF) information requested by the
latter on one of the two Company Z Italia SpA directors, whom Mr. E was
assessing as a member of the board of directors of Company Z Italia SpA; (v) at
the date B-2 shareholders’ meeting of Company Z Italia SpA, Mr. X appointed
Mr. F and Mrs. S as members of the board of directors.”
V
?ÿ 3. Conclusion
\
> [182] “The Arbitral Tribunal finds that First Respondent did not breach its
obligations to manage Company Z Italia SpA as a bon père de famille and to
'ÿT*-
cause Company Z Italia SpA’s management and employees to cooperate with
Claimant. Therefore, Claimant’s motion that the Arbitral Tribunal ‘rule that, in
any event, First Respondent breached its obligation to provide sufficient fund¬
ing to Company Z Italia SpA until the Closing, as well as its obligation to cause
X and the management and employees of Company Z Italia SpA to loyally
cooperate with Claimant’ shall be denied.”
VIII. CAUSAL LINK BETWEEN BREACHES AND LOSSES
[183] “Claimant’s case mainly rests on the assumption that Respondents’

breaches of the SPA - which, inter alia, prevented it from exercising its share¬
holder’s rights - led to the complete collapse of Company Z Italia SpA and,
eventually, to its winding up. As a result, Claimant would have been deprived
of its investment and would thus have incurred an aggregate loss estimated at
€25,469,606 (fn. omitted), for which it seeks indemnification.
[184] “The Arbitral Tribunal has found above that Respondents breached
certain representations and warranties made regarding the Holding’s title in
the shares in Company Z Italia SpA by failing to properly eliminate Mr. X’s
pre-emption right. This does not in itself entail that Respondents must compen¬
sate Claimant’s alleged loss. Under French law, the loss suffered must directly
result from the alleged contractual breach and the compensation may not exceed
the loss that the party in breach foresaw or ought to have foreseen. Moreover, a
concurrent fault on the part of the aggrieved party may in certain circumstances
exclude or reduce the liability of the party in breach. Therefore, the Arbitral
Tribunal shall first ascertain whether Claimant’s loss was suffered as a conse¬
quence of Respondents’ breaches of the SPA. In the affirmative, the Tribunal

shall determine the extent of the compensation to which Claimant is entitled,

which Respondents have also disputed.”
(••>ÿ)
1. French Law Principles Governing Causation
a. Necessary condition
[185] “Art. 1151 of the FCC lays down the requirement that the obligation of
the party in breach to indemnify the loss suffered by the aggrieved party is
subject to the existence of a causal link between the breach and the loss:
‘Dans le cas même ou l'inexécution de la convention résulte du dol du débit¬

eur, les dommages et intérêts ne doivent comprendre à l'égard de la perte
éprouvée par le créancier et du gain dont il a été privé, que ce qui est une suite
immédiate et directe de l'inexécution de la convention.’
[186] “However, more often than not, several causes will have preceded and
brought about the same loss. To operate a choice between these causes and
determine which one is the relevant one from a legal standpoint, French legal
authors have principally resorted to two legal doctrines, namely the doctrine of
equivalent causes (‘équivalence des conditions') and the doctrine of adequate
causation (‘causalité adequate’) (Le Tourneau/Cadiet, Droit de la responsabilité
et des contrats, Dalloz, 2003, no. 1713, p. 446).
[187] “In accordance with the doctrine of equivalent causes, all the circum¬
stances that contributed to the occurrence of the result will be deemed to have
caused such result in an equal way (Malaurie/Aynès, Les Obligations, 10th ed.,
Cujas, Paris 1999, Sect. 92, p. 58):
‘L’idée est que tous les faits sans lesquels l’accident ne se serait pas produit,
qui, en d’autres termes, en ont été la condition nécessaire, en sont, de manière
équivalente, la cause, sans que l’on ne puisse à cet égard faire de choix ni de
mesure ’
In other words, for the admission of the existence of a causal link between the
breach and the loss, it is sufficient that the breach be among the necessary
conditions of the loss (Viney, Les obligations, La Responsabilité: conditions,
in Traité de droit civil, LGDJ Paris, 1982, no. 339, p. 411). Without such breach,
the loss would not have occurred.
[188] “Pursuant to the doctrine of the causalité adéquate, only the act or event
that is considered as having been the true cause of a specific result will be taken

S'
into account. An act or event will be deemed the cause of such result if, by
human foresight, such result could be anticipated as likely to follow from this
act or event (Ibid., Sect. 93, p. 59):
‘On estime qu’un événement est la cause d’un autre lorsqu’on peut prévoir,
en se fondant sur le déroulement habituel des faits tel que l’expérience le
révèle, qu’il suit un autre.’
The rationale behind the doctrine of adequate causation is that all the causes that
preceded the occurrence of a loss did not play the same role:
‘Tous les antécédents d’un dommage n’ont pas le même rôle. Il se peut que,
par suite d’un enchaînement de “ circonstances exceptionnelles”, un événe¬
ment provoque un dommage: il n’en est point la cause (causa causons) mais
seulement l’occasion (occasio causons).’
[189] “Legal authors generally acknowledge that French courts apply both
doctrines equally and that none of them has precedence over the other (Le
Tourneau/Cadiet, op. cit., no. 1717, p. 448; Bénabent, Droit civil, Les obliga¬
tions, 9th ed., Montchrestien 2003, no. 557, p. 373). Sometimes, French courts
will even apply both doctrines concurrently to establish the causal link (Viney,
op. cit., no. 347, p. 416). There seems to be nevertheless a propensity to apply the
doctrine of adequate causation (Bénabent, op. cit., no. 558, p. 373), in particular
in cases where several causes may be taken into account (Flour/Aubert/Savaux,
Droit civil, Les obligations, 2. Le fait juridique, Armand Colin, 2003, no. 167, p.
159):
‘D’assez nombreux arrêts suivent cette deuxième orientation. On constate,

d’ailleurs, une semblable faveur à la théorie de la causalité adéquate, dans
les hypothèses de pluralité de causes, et notamment dans celles où une faute
unique vient à produire un dommage en se conjuguant avec un.événement
de la nature.’
[190] “In any event, under either of these doctrines, only a breach without
which the loss would not have been incurred will be characterized as the cause of
such loss (Malaurie/Aynès, op. cit., no. 91, p. 58; Viney, op. cit., no. 352, p. 418).
[191] “Finally, French legal authors unanimously reject the doctrine of the
proximate cause, according to which only the cause which immediately preced¬
ed the occurrence of the loss should be taken into account (Viney, op. cit.,
no. 355, p. 420).”

b. Burden to evidence the causal link
[192] “As a rule, the burden to evidence the existence of a causal link lies with
the Aggrieved party (Viney, Les conditions de la responsabilité, in Traité de droit
civil, 2nd ed„ LGDJ, Paris 1998, pp. 181-182):
‘En l'absence de présomption légale, c’est le demandeur qui doit établir le
lien de causalité entre le fait reproché au défendeur et le dommage. Cette
règle, qui est admise par la plupart des systèmes juridiques, est constamment
affirmée par les tribunaux français, qui en tirent les conséquences en déci¬
dant qu'à défaut d'apporter la preuve du rapport de nécessité entre l'événe¬
ment désigné comme "cause” et le préjudice invoqué, la victime doit être
déboutée de sa demande.'
[193] “That the burden of proving the causal link pertains to the aggrieved
party is subject to exceptions. In particular, French courts appear to consider
that the existence of a causal link may be presumed where an obligation to
achieve a certain result has been breached (Cass. Comm., 22 May 2002):
‘Et attendu, enfin, que l'arrêt retient que Qapco et ses assureurs subrogés
étaient bien fondés à rechercher la garantie légale de l'entrepreneur et que, le
contrat d'entreprise conclu par la société Alsthom ayant eu pour objet de
transmettre la propriété de la chose, l'entrepreneur se trouvait tenu d'une
obligation de résultat qui emportait présomption de faute et présomption de
causalité; qu'ainsi, la cour d’appel n'a pas appliqué à la société Alsthom une
clause relative à la garantie légale du vendeur.
[194] “It appears that this rule is limited to cases where there is a statutory
presumption that the party in breach committed a fault, in particular as regards
the main obligation of the contractor in contracts for works (Mazeaud/
Mazeaud/Mazeaud, Leçons de droit civil, II, 1st Volume, Obligations Théorie
générale, Montchrestien, 9th ed. 1998, no, 563, p. 656):
‘Le lien de causalité entre l’inexécution de l'obligation et le dommage doit

être prouvé par la victime. Cette règle comporte de rares exceptions: quand
-
la loi édicte une présomption de faute ainsi contre les parents et les artisans
-, elle édicte, du même coup, une présomption de causalité; la victime n’a
donc à démontrer ni le défaut de surveillance des parents, ni que ce défaut de
surveillance est la cause du dommage .'
[195] “In this respect, the Arbitral Tribunal observes that all the decisions
referred to by Claimant, without exception, deal with disputes arising in

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connection with work contracts, i.e. precisely agreements where the contractor
agrees to an ‘obligation de résultat’. Furthermore, the Cour de cassation is not
I
1
fully constant in its rulings and, in several instances, has limited the extent of the
■
reversal of the burden of evidence (Jourdain, Conditions de la responsabilité, in

Í Chroniques, July/September 2002, p. 515):
r-'
I
1;
‘Elle fut approuvée par la première chambre civile de la Cour de cassation
qui, renonçant à faire jouer la présomption de causalité, énonça que “la
responsabilité de plein droit qui pèse sur le vendeur-installateur ne
s’étend qu’aux dommages causés par le manquement à son obligation de
r résultat”. Puis, tirant les conséquences de cette règle, elle poursuivit en
y
déclarant qu’il incombait en conséquence à la victime de démontrer que
l’explosion avait trouvé son origine dans la prestation effectuée, ce qu’elle
n’était pas parvenue à faire en l’espèce en raison de la pluralité de causes
■i hypothétiques retenues par les juges du fond.’
[196] “Finally, several commentators have criticized the rule that the breach of
an obligation to achieve a certain result gives rise to a presumption of causation,
stating that such presumption only applies to the causal link between the breach
and the fault of the party in breach, to the exclusion of the causal link between
the breach and the loss (Jourdain, RTD Civ., 1988, p. 708; see also Saint-Pau,
Droit à réparation, Conditions de la responsabilité contractuelle, Fait générateur,
Inexécution imputable au débiteur)'.
‘La solution retenue en l’espèce s’explique en réalité par une autre distinction
trop rarement faite entre deux sortes de liens de causalité nécessaires pour
relier le dommage à la faute du débiteur d’une obligation de résultat. ... Il
doit exister d’abord une première relation causale entre le dommage et
l’inexécution de l’obligation, c’est-à-dire l’absence du résultat promis; puis
il en faut une autre qui relie cette absence de résultat à la faute du débiteur
dans l’exécution. Seul le second lien de causalité est présumé et ne peut être
détruit que par la preuve d’une cause étrangère. . . . Quant au premier lien
de causalité (entre l’inexécution matérielle et le dommage), il n’est nulle¬
ment présumé en droit et doit être prouvé par la victime. . .. Prouver le
dommage ne suffit donc pas; le créancier doit encore établir l’inexécution
matérielle de l’obligation en démontrant que son dommage en résulte.’
[197] “The aggrieved party seeking compensation must show a causal link
between a breach by the other party and the damage sustained. However,
where a party promises the delivery of a specific occurrence, a ‘result’, the failure
for this result to materialize will usually in itself be tantamount to
misperformance.

It is uncertain whether French law does actually shift the burden of evidence
from the aggrieved party unto the other. One has to distinguish between the
wrongful act (faute) and the breach (inexécution). If an aggrieved party evi¬
dentes its damage, this party is dispensed with the proof of the causal link
between the wrongful act and the breach but it is left with the burden of proving
the link between the breach and the damage.”
2. No Presumption of Causal Link
[198] “In the case at bar, Respondents acted wrongfully in delivering

Company Z Italia SpA’s shares that were not fully unencumbered (free of
liens). However, Claimant still has to prove that the existence of such liens
did cause the damage it sustained.
[199] “At any rate, assuming for the sake of reasoning, that there should be a
reversal of the burden of proof, such shifting would be limited to what, under
normal expectations, a certain breach will entail as consequences. To be specific,
the failure to deliver stock free of encumbrances such as a right of pre-emption,
is likely to result in a third party possibly exercising a right of first refusal and
thus depriving the purchaser from the ownership and possession of such stock.
The reasonably expectable damage is thus the loss resulting from the deprivation
of the stock, namely its possible higher value than the price paid, and any
ancillary costs (such as defending in a court order against the beneficiary of
the right of pre-emption). The presumption of causal link would thus attach
to a chain of events leading from the breach to such damages but not to totally
different damages.
[200] “In light of the foregoing, the Arbitral Tribunal finds that the existence
of a causal link between Respondents’ breach and the actual losses incurred by
Claimant may not be presumed. Therefore, the burden to establish that such
breach caused the collapse of Company Z Italia SpA lies with Claimant.”
3. Causal Link Between Breaches and Losses
[201] “As stated above, there is a propensity of French courts to apply the
doctrine of adequate causation concurrently with the doctrine of equivalent
conditions or even alone in cases where several causes may be taken into
account. Therefore, the Arbitral Tribunal shall now determine whether
Respondents’ breach of the SPA may be considered as the adequate cause of
the loss incurred by Claimant, namely whether, by human foresight, the collapse
of Company Z Italia SpA could be anticipated as likely to result from
Respondents’ failure to properly waive Mr. X’s pre-emption right.

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[202] "The answer is negative. Ascertaining the causation link is performing

what has been branded an objective retrospective prognosis. It is namely
endeavoring to go back to the time of the events from which the damage was
subsequently to arise and determine what a reasonable person would have
predicted.
[203] “As of the Closing Date, the seller of stock loses all title to such stock
and the purchaser is the one who may exercise the stockholder’s rights. In the
acquisition of an enterprise or a company, it is the purchaser who should use his
newly acquired control. It is the purchaser who should forthwith, and subject of
course to different agreements with the seller, control and operate the acquired
company or undertaking. In particular, the purchaser as any entrepreneur will
have to ensure proper funding, staff, management of the company and to super¬
vise the operation.
[204] “If there is a difficulty in the actual transfer of a company, it is still in the
normal course of events that the purchaser will have some trouble enacting its
actual control and influence over the operation for a certain period. Litigation
with holders of pre-emption rights, labor disputes and conflicts with the man¬
agement are not unheard of. To be more specific, that a minority shareholder
seeks the annulment of a share sale made without consideration for his pre¬
emption right may be anticipated as likely to follow from the failure to waive
such right prior to offering the shares to a third party.
[205] “In the present case, the events that took place from the Closing Date up
to three months later, in particular the challenge by Mr. X of the transfer of
Company Z Italia SpA’s shares to the Holding, were well in the predictable
normal course of events and were not yet the sign that there may be more than a
misunderstanding that could be dispelled. The conduct of the parties shows that
the events were taking a course which, obviously puzzling and possibly
detrimental, was however not beyond belief: thus, it was not impermissible to
await the end of the vacation period to go down to Italy and meet with Mr. X.
[206] “The contemporaneous perception of both parties, which legitimately
assumed that there was a misunderstanding with Mr. X and that proper funding
and management would achieve a smooth and seamless take over of the Italian
business, well illustrates that litigation with the holder of a pre-emption right is
not a completely unexpected event:
‘Mme S: Nous venons de prendre en main ce Groupe et cette société, l’Italie

est dans les pays que nous avons définis comme étant clefs et importants pour
nous, c’eri un pays extrêmement important pour nous, c’est une activité
hyper importante, M. X est l’homme de la situation, il est à la tête de
Company Z Italia, c’est un homme qui incarne son business.

Je n’imagine pas une seconde aller intenter une quelconque action en

justice contre M. X, pour moi il y a un malentendu que l’on va réussir à
résoudre, il n’y a pas de raison de ne pas y arriver s’agissant de probléma¬
tiques peut-être légales, je ne suis pas juriste mais je fais confiance à nos
conseils, donc il ne me vient pas du tout à l'esprit d’aller attaquer cette
personne qui est complètement cruciale dans le développement de notre
activité.’
This testimony was confirmed by Mr. V [of Second Respondent]:
‘Counsel for Claimant: En [the month of the Closing], personne ne vous a

dit que le problème se posait ?
Mr. V: En [the month of the Closing], je sais qu’il y a eu des problèmes mais
cela ne m’avait pas paru dramatique dans la mesure où il y avait des contacts,
Mme S était allée à [an Italian city], Mr. K de Company DEF allait à [an
Italian city], cela me paraissait des choses qui étaient restées à peu près dans le
domaine du négociable.
Counsel for Claimant: D’accord, mais vous saviez qu’il y avait un pro¬
blème?
Mr. V: Peut-être, c’estpossible mais je n’avais peut-être pas pris conscience de
la gravité.
Counsel for Claimant: Vous savez qu’il y a un problème, mais vous n’avez
pris mesure de la chose et vous pensez que cela se réglerait?
Mr. V: Cela pouvait se régler.
Counsel for Claimant: Les personnes de Claimant ont aussi pensé a ce
moment que cela pouvait se régler, donc je crois que vous étiez bien sur
la même longueur d’onde a ce moment-là.
Mr. V: Jusqu'au mois de [two months after the Closing].
Counsel for Claimant: C’est cela. Lorsque vous dites dans votre affida¬
vit .. . (reads English text) vous avez été “absolutely astonished” à partir
de quand?
Mr. V: A partir du mois de [two months after the Closing].’
[207] “The record shows that Claimant had some contacts with Mr. X over
that period, such as the exchange of messages. Mr. X was challenging Claimant’s
indirect acquisition of the majority in Company Z Italia SpA stock capital but
was still (whatever his actual motivation) accepting Claimant as his discussion
partner for such an important issue as the funding. Thus, Claimant did endeavor
to get ‘things on track’ and was legitimately entitled to do so, especially as Mr. X
was the entrepreneur it had ‘invested in’. It is also true that the summer vacation
period was dismissing any sense of urgency.

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[208] "Two months after the Closing, Claimant notified Respondents of its
claim under the SPA, especially Clause 9.3, and stated that it was not yet in a
position to finally assess the damage resulting from this claim. Claimant
described what its damage would likely be (in the normal course of the events
to use again the concept predicating adequate causation) as follows:
‘We are not yet in a position to finally assess the damage resulting from this
claim; we shall provide you with further information in this respect as soon
as possible. However, this claim will in any case include all costs resulting
from the judicial proceedings entered into by Mr. X, as well as any cost,
•Í: expense, loss of profit or other liability connected with the impossibility for
First Respondent to exercise its rights as a shareholder and to take part and
control the management of Company Z Italia SpA. We hereby already
request the due indemnification of any such damage.’
[209] "The claim shows that, at that time, the damage incurred by Claimant
was in line with what would and could be expected from a difficulty in the
transfer of First Respondent’s interest in Company Z Italia SpA to the
Holding. Such damage was not arising from a loss of value of the Company
Z Italia SpA participation (the transfer of First Respondent’s interest had
not had (yet) any effect on Company Z Italia SpA operation) but from the
costs incurred by Claimant to defend itself in the legal proceedings initiated by
Mr. X.
[210] “Admittedly, two months after the Closing Mr. X had presented to the
board of auditors of Company Z Italia SpA and to the two Company Z Italia
SpA directors a report describing what he called the critical nature of
the situation facing Company Z Italia SpA and what corrective measures he
intended to take, such as cost reduction and non-renewal of some supplier
agreements. However, it is likely that Claimant was not made privy to this
report, which one of the directors failed to communicate. (At the evidentiary
hearing, the director testified that he did not inform Claimant of this report.)
At any rate, as will be seen below, the contents of this report did not foretell the
events that would follow, in particular the actions of Mr. X over the coming
months.
[211] “It follows from the above that the events that took place until two
months after the Closing, in particular the challenge by Mr. X of the transfer
of Company Z Italia SpA’s shares to the Holding, could be anticipated as likely
to result from Respondents’ failure to secure the waiver of Mr. X’s pre-emption
right. Accordingly, Respondents’ failure may be deemed to be the adequate
cause of any loss suffered by Claimant in this respect (such as, e.g., the litigation
costs).
iÍ
;
However, two months after the Closing is a watershed. From then on, the
situation did change rapidly and the events went totally off any reasonably
foreseeable track.
[212] “Taking advantage of the situation, possibly asserting his rights as a
wedge between Claimant and Respondents to foster his own interest (and not
anymore Company Z Italia SpA’s company purpose), Mr. X conducted himself
very differently. This new attitude was totally unpredictable at the time of the
Closing and the ensuing damage is not causally linked anymore to Respondents’
breach of the SPA:
(i) Mr. X confirmed the termination of a commercial agency contract

between Company Z Italia SpA and agent R. Several other identical agree¬
ments were terminated later on;
(ii) Company Z Italia outsourced part of its activity to Italian Company J srl,
which was appointed Company Z Italia SpA’s exclusive commercial agent
to sell advertising space;
(iii) by identical letters, Company Z Italia SpA notified several operators that
their supplier agreements would not be renewed the following year;
(iv) according to the report of the first auditing firm, 14 employees of
Company Z Italia SpA left the company or were terminated.
[213] “No one could have foreseen that Respondents’ failure to cause the
waiver of Mr. X’s pre-emption right would result in such actions and events.
The fact of the matter is that the parties themselves did not foresee them, which
is clearly evidenced by the contemporaneous record. Thus, it appears that until
the end of the relevant year, the parties still believed that there was only a
disagreement regarding the transfer of Company Z Italia SpA’s shares to the
Holding, which would be clarified shortly:
(i) First Respondent contested Mr. X’s statement that the transfer of Com¬
pany Z Italia SpA’s shares to the Holding was ineffective and urged Mr. X
to register the Holding as the company’s majority shareholder;
(ii) on the following day, Mr. V (of Second Respondent) asked Mr. X for a copy
of the minutes of the date B-2 general assembly of Company Z Italia SpA;
(iii) on the day after, the Holding invited Mr. X to authorize its representa¬
tives to examine Company Z Italia SpA’s accounts, to register the
Holding as the new majority shareholder as of the date of the filing
with the notary public and to appoint the directors designated by the
Holding, namely Mr. F and Mrs. S;
(iv) again one day later, Mr. F confirmed that he accepted his appointment as
member of the board of directors of Company Z Italia SpA;

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(v) five days lacer, Mrs. S accepted her appointment as member of the board
of directors of Company Z Italia SpA;
(vi) a week later, Second Respondent replied to Claimant’s notice of claim,
stating in particular that the claim did not meet the requirements of
Clause 9.3.1 of the SPA and, hence, was inadmissible, and that the
condition precedent set out at Clause 4.2.4 that the Holding should
have the exclusive ownership of First Respondent’s subsidiaries on the
Closing Date had been fulfilled;
(vii) a few days later, First Respondent and the Holding sent a joint letter to
Mr. X, stating that First Respondent was no longer the majority share¬
holder of Company Z Italia SpA and urging Mr. X to register the Holding
in the company’s share register;
(viii) on the same day, First Respondent requested from Mr. X a copy of the
£ minutes of the date B-2 shareholder’s meeting;
K. '
(ix) in a letter of a week later, Mrs. S stated that, under Italian law, no formal
acceptance was required for an appointment on the board of directors to
be valid and binding and that Claimant had contacted one of the directors
and Mr. X with a view to setting up an informal meeting aimed at solving
outstanding issues and identifying possible solutions;
(x) Claimant replied to Second Respondent’s letter, confirming that the
claim was made by the Holding and giving an estimate of the loss it
suffered;
(xi) one month Later, Second Respondent reiterated its objections to the
Holding’s notice of claim;
(xii) two weeks later, First Respondent refuted Mr. X’s statement that the
Holding never succeeded to First Respondent as majority shareholder
of Company Z Italia SpA and enclosed a copy of a share certificate of
Company Z Italia SpA endorsed by First Respondent in favour of the
Holding;
(xiii) on the same day, by a registered letter anticipated by fax, First
Respondent reminded Company Z Italia SpA (attention Mr. X with a
copy to the president of the board of auditors) that the Holding had
provided Company Z Italia SpA with a copy of Company Z Italia
SpA share certificate endorsed in favour of the Holding on date B-2.
[214] “At the hearing, Mrs. S described the unpredictable nature of Mr. X’s
attitude in the following terms:
'Mais avant de découvrir en [five months after the Closing] le rapport qui
nous avait été préparé par [the first auditing firm], nous n'avionspas lieu de
penser que l’opération elle-même était en danger. Il y avait une

problématique d’actionnariat, d’enregistrement, mais en tout état de cause,

on n’allait pas révoquer M. X, non.’
Mr. Q (of Claimant) confirmed that the events that took place over the fall of the
relevant year were completely unexpected:
‘Counsel for claimant: Vous avez accès à l’entreprise a la fin du mois de [four
months after the Closing}/ début [five months after the Closing], quelle
situation trouvez-vous à ce moment-là?
Mr. Q: Une situation que nous n’espérions pas bien sûr, une situation assez
dramatique puisque c’est à cette occasion que nous découvrons que l’entre¬
prise a été quasiment mise en liquidation. J’arrive dans des bureaux qui ont
été totalement vidés de tout mobilier, d’archives, il n’y a évidemment plus de
personnel, il n’y a plus de dossiers, il y a une entreprise complètement vide, le
seul personnel est une standardiste submergée par les appels de fournisseurs,
de clients, la société a quasiment été mise en liquidation.’
This understanding was shared by Respondents. ...

[215] “The parties have advanced several explanations to elucidate Mr. X’s
attitude. According to Mrs. S, Mr. X never had the intention to collaborate
with a group such as the one represented by Claimant:
‘Je pense que M. X n’a jamais eu véritablement le désir de travailler avec

un partenaire comme Claimant, je pense que c’était par essence un entre¬
preneur, il l’a d’ailleurs montré, il a construit, il a déconstruit, on pense
qu’il a reconstruit à côté, donc je pense qu’il fait fondamentalement partie
des gens qui devaient être en pleine possession de leur business, de leurs
moyens, de leur stratégie et qu’il s’accommodait probablement mal d’un
partenaire, si ce n’est un partenaire dormant, si ce n’est un partenaire
financier.
Donc, à la lumière de ce qu’il s’est passé, le sentiment que j'ai de tout cela
est qu’il nous a vu arriver. Je pense qu’il avait vraiment de gros besoins
financiers, il avait des lignes de crédit sur lesquelles il s’était engagé, je pense
que l’ambiance de la société avait été très difficile à vivre parce que, lorsque
vous courrez après les financements pendant des mois cela use, et il n’y avait
pas qu’eux qui étaient usés, et, enfin, vous voyez arriver des moyens finan¬
ciers mais avec probablement aussi une certaine rigueur de besoin de com¬
munication. Nous allions mettre en place des moyens de gestion, je ne m’en
suis pas cachée, je leur ai seulement demandé de travailler ensemble pour
mettre en place une société qui allait être saine.’

And further:
?
‘Monsieur X était l'entrepreneur qui avait besoin d’un partenaire dormant
financier, nous n’allions pas être ce partenaire dormant, financier, oui cer¬
: tainement, on en avait les moyens, on a eu les moyens, mais pas dormant, et,
pour nous il incarnait la société, on l’aurait soutenu, on aurait été derrière lui
mille fois parce qu’il avait le sens des affaires que nous ne connaissions pas
beaucoup à l’époque mais sur lesquelles nous pouvions construire sur la base
de M. X, des fonds, de cet appétit que nous avions dans ce business et de
toutes les relations internationales que nous avons pu créer après avec [the
suppliers], mais nous avions besoin de lui, lui ne souhaitait pas trop que nous
intervenions, donc il a gagné du temps.
Cela paraît assez clair maintenant, il nous a promenés avec ces mandats
que l’on devait signer, il nous a promenés et puis il a fermé la société et il nous
■A . a laissé tout le poids financier.’
[21 6] “This thesis appears to be backed up by the description made by Mr. X

of his relationship with Claimant:
‘In general, I have found Claimant’s continuous diktat to which it intends

to submit me and my whole management unpleasant. Even though I appre¬
ciated your verbal attempt at smoothing the tones I cannot help myself
from hiding a general feeling of annoyance caused by the demands of
your client and the way in which such demands are made, . . . ’
[217] “Another explanation is that Mr. X saw in the dispute opposing

Claimant and Respondents a good opportunity to foster his own interests
and used it as a pretext to try and extract additional financial support from
Claimant or to secure his position as managing director of Company 2 Italia
SpA. Thus, according to Claimant itself (fn. omitted):
‘The reality is that Mr X tried to use the weapon of his pre-emption right to
force Claimant to sign a new shareholders’ agreement, whereby the minority
shareholder would have had full and exclusive control over the company.
And, when he realized that he would not achieve that goal, he decided to use
his pre-emption right to prevent Claimant from gaining access to the
company for the time necessary to close it down and start another business.’
[218] "The fact of the matter is that three months after the Closing Mr. X sent
an e-mail to Mr. E, stating that he would agree to meet representatives of
Claimant provided that ‘an Interpartners agreement’ {between shareholders

and between members of the board) [be signed] in which Company Z Italia SpA
[Would] oblige itself to vote in favour of all [his] proposals concerning the
financial strategy of the Company’. In a letter late the same months, Mr. X
made the following proposals (translation):
‘The solution is quite straightforward: as soon as First Respondent indicates

who the two directors are (if you deem it appropriate, for the protection of
the interests of your client, by way of a letter jointly signed also by your
client) the board will appoint the new directors.
The above is the issue which can be immediately solved. Now I will focus
on my requests, which should be the object of the negotiations.
The possible solutions are in my view three.
The first one is taking note of the impossibility to carry on with the
relationship between shareholders. Consequently, the only possible solu¬
tion, in order to avoid continuous disputes, would be that either sharehold¬
er takes over the shares of the other. In this case, should I be the one to sell
my shares, I would resign as director unless I am requested to co-operate
with the company for an interim period aimed at handing over my offices.
The second solution is to rebuild a co-operative spirit to be reflected in a
new MoU.
By way of a preliminary remark, please note that I do not trust at all the
people introduced to me during the previous negotiations and who were even
nominated for holding the significant and important role of members of the
Board of Directors. In particular, those people have repeatedly showed me
their inadequacy with respect to financial policy issues. Therefore I deem
that, for the benefit of the company, I should be entrusted with full respon¬
sibility with respect to the financial handling of Company Z Italia SpA.
An essential condition is that, by way of an amendment to the MoU,
I should be granted, in addition to the personal position of Managing Direc¬
tor, also the power to appoint the President and the Financial Director,
whereas the other shareholder would be entitled to appoint two directors
without powers.
The roles of the parties would therefore be clear. I would not only deal
with the commercial management of the company, the acquisition of adver¬
tising slots and their resale but also with the financial management taking
over full responsibility for the economic aspects. I could not accept that this
important role is assigned to inadequate individuals.
[219] “Be it as it may, it follows from the above that the events that took place
over the fall of the relevant year [were] totally unpredictable and that no one
anticipated them as likely to result from Respondents’ breach of the SPA.

'
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[220] “In light of the foregoing, the Arbitral Tribunal finds that Respondents’
failure to cause the proper waiver of Mr. X’s pre-emption right was not the
adequate cause of Company Z Italia SpA’s collapse. The Arbitral Tribunal finds
that the cause was Mr. X’s conduct of the business after the take-over, his
unwillingness to work in the new structure and his lack of confidence in the
new management imposed by Claimant. Respondents’ failure to obtain a proper
waiver of Mr. X’s pre-emption right offered Mr. X the possibility to make it
more difficult for Claimant to take effective control but the Tribunal considers
that the Respondents’ breach of contract in this respect is not the adequate cause
ï
of Company Z Italia SpA’s collapse; it only facilitated Mr. X’s possibly disloyal
actions against the new shareholder.
[221] “It is thus unnecessary to determine whether Claimant’s way to address
the Italian conundrum after the summer of the relevant year was amounting to a
negligence.”
IX. DAMAGES
(....)
[222] “Claimant claims damages under the following heads:
(i) share of the global purchase price relating to Italy €10,471,690

(ii) the liquidation costs of Company Z Italia SpA €7,763,549.08
(hi) loss of profit € 3,719,906
(iv) damage to reputation € 1,000,000
(v) fees and legal costs € 2,532,363.20
Total: € 25,487,507.08 according to Claimant or actually € 25,487,508.28.
[223] “In essence, Respondents have objected that Claimant’s calculation of

its loss is flawed; that their liability is capped; that Claimant’s claim for interest is
null and void; that any amount recovered by Claimant from third parties should
come in deduction of damages awarded to it; and that the Arbitral Tribunal
should stay its decision on the quantum until the final decisions of the Italian
courts.
[224] “The Arbitral Tribunal shall first determine whether - and, in the
affirmative, to what extent - the damages claimed by Claimant aim at compen¬
sating losses sustained as a result of Respondents’ breach of contract, i.e. caused
by Respondents’ failure to have Mr. X’s pre-emption right waived. It shall then
deal with Respondents’ various objections.”

1. The Damages Claimed by Claimant
a. Share of the purchase price
[225] “Claimant submits that it had no other option than to liquidate

Company Z Italia SpA and, on this basis, claims damages corresponding to
the portion of the global purchase price allocated to Company Z Italia SpA
and Company Z Italia srl, i.e. € 10,471,690. Respondents dispute Claimant’s
calculation of the purchase price. First, Claimant has failed to deduct the amount
of cash left in the Holding (€4,201,418). Second, Claimant is not entitled to
include the value of Company Z Italia srl (€890,937).
[226] “Whether Claimant’s calculation of the share of the global purchase
price allocated to Company Z Italia is flawed and whether such share should
include the price paid for Company Z Italia srl’s shares may be left open. As a
matter of fact, the Arbitral Tribunal has reached the conclusion that only the loss
sustained by Claimant as a result of the legal proceedings initiated by Mr. X had
been caused by Respondents’ breach of contract. Therefore, the Tribunal rejects
Claimant’s claim for indemnification of the loss corresponding to the purchase
price of the Italian business it incurred by being allegedly forced to liquidate
Company Z Italia SpA.”
b. Costs of liquidation
[227] “Claimant has failed to establish that the liquidation of Company Z

Italia SpA was caused by Respondents’ breach of contract. Therefore, the
Tribunal dismisses Claimant’s claim for compensation of the costs it incurred
to liquidate Company Z Italia SpA.”
c. Fees and legal costs
[228] “Claimant claims payment of fees charged by various consultants it

commissioned both before and after the Closing, as well as the legal costs
incurred to defend itself in the Italian proceedings.
[229] “Among these fees and costs, the Arbitral Tribunal finds that only those
incurred by Claimant in relation to the legal actions initiated by Mr. X may be
deemed to have been caused by Respondents’ breach of the SPA. According to
Claimant, these fees amount to €860,147.09.
[230] “Respondents argue that the portion of law firm P’s fees directly relating
to services rendered in connection with the breach they allegedly committed
amounts to €180,000. Claimant has submitted the invoices issued by the law
firm P. All of them, without exception, refer to ‘professional services rendered in
favour of Claimant’ with respect to the ‘law-suit brought by X against

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Claimant . .. However, said invoices also include fees charged for services
1' rendered in connection with unrelated matters, such as ‘corporate advice and
i assistance in respect of Company Z Italia SpA’, ‘advice or assistance on business

situation of Company Z Italia SpA, on relations with Company Z Italia SpA’s
counterparts and on creditors’ threatened litigations against the company’, ‘lit¬
igation brought by another company against SpA etc.’.
[231] “Claimant has failed to establish the precise amount of legal costs it
incurred in relation with the legal proceedings initiated by Mr. X. Therefore,
Claimant shall only be awarded the legal costs that Respondents have acknowl¬
edged to be in connection with said proceedings, i.e. €180,000.
[232] "At this juncture, the Arbitral Tribunal wishes to specify that the above
finding would not be altered by a decision of the Italian courts dismissing Mr.
X’s legal proceedings. As a matter of fact, the legal costs claimed by Claimant
: would nevertheless have been incurred as a result of Respondents’ negligence in
providing a valid waiver of Mr. X’s pre-emption right.”
d. Loss of profit and harm to reputation
[233] “Claimant has not demonstrated that it sustained a loss of profit or that
its reputation was damaged. This issue may however be left open. As a matter of
fact, Claimant has failed to establish the existence of a causal link between
Respondents’ breach pf the SPA and the loss of profit and harm to its reputation
and good standing it would have incurred. Therefore, the Arbitral Tribunal
rejects Claimant’s claim for indemnification from such losses.”
2. Respondents’ Objections
a. Contractual limitation of liability
[234] “Respondents submit that, in accordance with the contractual limitation

of liability contained in Clause 9.2.4(ii) of the SPA, damages awarded to
Claimant may not exceed € 9,653,988. Moreover, pursuant to Clause 9.2.3(i)
of the SPA, a franchise of € 300,000 should be deducted.
[235] “It is correct that, with respect to First Respondent Claims (i.e. a claim
made in relation to representations and warranties granted by First
Respondent), the SPA caps Respondents’ liability by providing both a threshold
and a ceiling. First, pursuant to Clause 9.2.30(i) of the SPA, Respondents are
only liable for amounts claimed in excess of € 300,000:
‘the Guarantors shall not be liable under this Agreement in respect of any
Claim relating to the First Respondent Representations and Warranties
(a “First Respondent Claim”), unless the aggregate amount of all the

First Respondent Claims exceeds € 500,000; and where the aggregate

amount recoverable in respect of the First Respondent Claims exceeds
€500,000, the Guarantors shall be liable to pay the amount in excess of
€300,000 only.
Second, pursuant to Clause 9.2.4(ii) of the SPA, a First Respondent Claim may
not exceed one third of the ‘First Respondent Aggregate Value’. . . .
[236] “However, in specific cases, Clause 9.2.5 of the SPA excludes the appli¬
cation of the above limitations. This is in particular the case for claims relating to
the ownership of the shares in the subsidiaries or the existence of a Lien on such
shares (Clause 9.2.5(iv)):
‘9.2.5 Exceptions to the threshold and cap

The limitations set forth in Clauses 9.2.2, 9.2.3 and 9.2.4 shall not apply to
any Claim related to:
(iv) the ownership of the shares in the Subsidiaries and/or the existence of
any Lien on the shares in the Subsidiaries.’
[237] “In the instant case. Claimant’s claim is in particular derived from a
breach of the representation made at Art. 4.1.6 of Schedule 8 to the SPA that,
on the Closing Date, the Holding would have full, valid and exclusive ownership
of the shares in the First Respondent Subsidiaries, which would be free and clear
of all Liens. Therefore, the Arbitral Tribunal finds that Respondents’ liability is
not limited.”
b. Deduction of amounts recovered from third parties
[238] “In the year following the relevant year, Company Z Italia SpA (in
liquidation) initiated a legal action against Italian Company J srl, seeking pay¬
ment of amounts due under their contract and remained unpaid (€240,773.76).
Later in the same year, Company Z Italia SpA (in liquidation) initiated legal
proceedings against Mr. X, claiming payment of damages of €15,894,291. These
proceedings are pending before the Italian courts.
[239] “Respondents submit that any damages that Company Z Italia SpA
may be awarded in the above proceedings should come into deduction of
the amounts claimed in this arbitration. Moreover, Respondents refer to
the examination of Mr. Q, who testified that Company Z Italia SpA managed
to recover from various debtors about 75% of € 9mio of overdue invoices
(fn. omitted).

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;; [240] “Clause 9.2.10 of the SPA reads as follows:
:.
‘9.2.10 Insurance Proceeds and Other Recoveries from Third Parties
(i) Any amount for which the Guarantors would otherwise have been liable
under this Agreement in respect of any Losses suffered by the Purchaser or
the Company or any Subsidiary shall be reduced by the net amount of any
indemnification or other recovery actually received by the Purchaser or the
Company or any Subsidiary from any third party (including insurance
proceeds) in respect of such Losses.
(ii) The net amount of such indemnification or other recovery shall be equal
to the net amount received or to be received by the Purchaser or the
Company or any Subsidiary, less
(a) any reasonable costs and expenses incurred by the Purchaser or the
s: Company or the relevant Subsidiary in respect of such indemnification
or other recovery,
(b) any applicable Tax incurred with respect to such indemnification
and
(c) when indemnification consists in insurance proceeds, the aggregate
amount, if any, by which an independent insurance broker, jointly
appointed by the Purchaser and the Guarantor, estimates that the
Company’s (and/or any of the Subsidiaries’) premiums are likely to
be increased during the two years following the making of the
insurance claim.’
[241] “It follows from the above provision that only amounts recovered by
Claimant and for which Respondents would have been liable should come into
deduction of damages awarded in this arbitration.
[242] “The Arbitral Tribunal has reached the conclusion that Respondents
must be held liable for the legal costs incurred by Claimant in connection
with the Italian proceedings initiated by Mr. X. Therefore, should the Italian
courts award to Claimant a sum aiming at compensating said costs, this sum
if Claimant is in fact able to collect it will come into deduction of the amount of
€ 180,000 which the Arbitral Tribunal shall order Respondents to pay to
Claimant.”
c. Deduction of tax savings
[243] “Respondents have failed to demonstrate that the losses incurred by

Company Z ItaliaSpA resulted in any tax savings.”

d. Interest
[244] “According to Respondents, Claimant’s claim for interest would be null

and void. It is true that Claimant did not give any justification for its interest
claim. It is also true that such claim was not included in the Terms of Reference.
[245] “However, Art. 1153-1, first paragraph, of the FCC provides that an
order to indemnify carries along interest at the statutory rate, even where there is
no express claim for interest:
‘En toute matière, la condamnation à une indemnité emporte intérêts au

taux légal même en l'absence de demande ou de disposition spéciale du
jugement. Sauf disposition contraire de la loi, ces intérêts courent à compter
du prononcé du jugement à moins que le juge n'en décide autrement.'
In a recent case, the Cour d’Appel of Paris confirmed the arbitrators’ entitlement
to impose interest on damages awarded to a party, even if payment of said
interest has not been expressly sought (CP, Paris, 1st Ch. C, 6 November
2003, in [2004] 3 Rev. Arb. 631 et seq.):
‘Considérant que la Banque a saisi les arbitres d'une demande tendant à la

condamnation du CMNE à lui payer 1 651 133,38 F d'intérêts de retard du
19 septembre 2000 au 7 octobre 2001, capitalisés, en soutenant que la somme
de 129 000 000 F lui avait été accordée à titre d'indemnité et que les dis¬
positions de l’Article 1153-1 du Code civil étaient donc applicables;
Que le tribunal, au visa de l'Article 1475 NCPC, a confirmé le caractère
indemnitaire de la sentence et en a tiré les conséquences en rappelant que
selon l'Article 1153-1 du Code civil les intérêts courent à compter du pro¬
noncé du jugement, même en l’absence de demande ou de dispositions spé¬
ciales du jugement, et en observant que la sentence n'étant exécutoire qu’une
fois revêtue de la formule exécutoire il y avait lieu, en équité, de fixer au
12 octobre 2000, date de l’ordonnance d’exequatur, le point de départ des
dits intérêts;
Qu’en statuant ainsi il s’est conformé à sa mission. . . . ’
[246] “Therefore, any damages awarded to Claimant shall bear interest at the
French statutory rate from the date of this Award as results from Art. 1153-1 of
the FCC and case law, as cited for instance by Malaurie/Aynès (Malaurie/
Aynès, Les Obligations, 10th ed., Cujas, Paris 1999, footnote 4 ad No. 844,
p. 495). Such interest will be capitalized (Art. 1154 of the FCC) should payment
not occur within one year.”

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e. Stay of decision on quantum
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[247] “Respondents further request that the Arbitral Tribunal stay its decision
on the quantum until a final ruling has been issued by the Italian courts.
[248] “As already stated, there is no lis pendens exception between arbitration
v and state proceedings. In any event, the Italian court proceedings, though they
arise from the same set of facts, do not bring together the same parties. Besides,
the Arbitral Tribunal notes that Clause 9.2.10(ii) of the SPA expressly contem¬
plates the possibility that Claimant recover amounts from third parties after the
adjudication of its claims under the SPA (see Clause 9.2.10(ii), ‘the amount
received or to be received’). Therefore, the Arbitral Tribunal shall dismiss
Respondents’ request that the Tribunal stay its decision on the quantum until
the Italian courts have handed down a final decision in the above proceedings.”
" f Apportionment among the guarantors
[249] “Pursuant to Clause 9.3.5(iii)(b) of the SPA, ‘in case of a payment made
as a result of a First Respondent Claim, two thirds (2/3) of said payment shall be
made to the Purchaser by Second Respondent and one third (1/3) of said pay¬
ment shall be made to the Purchaser by Z’. Therefore, the Arbitral Tribunal shall
order that the damages awarded to Claimant (€180,000) shall be paid as follows:
€120,000 by Second Respondent; and €60,000 by Z.”
3. Conclusion
[250] “Therefore, the Arbitral Tribunal shall order Respondents to pay

Claimant the amount of € 180,000 plus compound interest at the French
statutory rate from the date of this Award, being specified that two thirds of
such amount (€120,000) shall be paid by Second Respondent and one third
(€ 60,000) by Z.”
X. TAX CLAIM
(....)
[251] “Representations regarding tax related matters were made in Art. 4.11 of
Schedule 8 to the SPA, which, in relevant parts, provides as follows:
‘4.11 Taxes
The Company and each of the First Respondent Subsidiaries have filed,
within the prescribed period and in a substantially exact and complete

manner, all foreign, national, regional and local tax, tax-related, social and
custom returns required by the applicable laws and regulations.
The Company and each of the First Respondent Subsidiaries have paid,
within the period provided for by the laws and regulations currently in force
in the State of residence of the Company and each of the First Respondent
Subsidiaries, all foreign, national, regional and local taxes of any nature what¬
soever imposed, assessed or collected under any law or payable pursuant to
any tax sharing or similar contract, including without limitation all income
and capital taxes, business tax, real estate taxes, tax in arrears, value added tax,
sales taxes, withholding taxes, duties (including, registration, transfer and
stamp duties), excise, equalization tax, advanced-payment tax, wages tax,
social contributions or other employment related taxes concerning the
employees of the Company and the First Respondent Subsidiaries, or tax-
related contributions or any other taxes or charges in the nature of the taxes
described above, in principle and interest (the “Taxes”).
(....)
Neither the Company nor any First Respondent Subsidiary has com¬
mitted any act or carried out any transaction, which, if challenged by any
Tax Authorities, could, in good faith, be expected to result in a liability. To
the Seller’s knowledge, there are no circumstances in which additional
Taxes, or penalties, fines or surcharges in relation to Taxes may be success¬
fully charged against the Company or any First Respondent Subsidiary.
(...)
All material deficiencies of Taxes asserted or proposed in writing or
otherwise asserted or proposed, with respect to the Company and First
Respondent Subsidiaries as a result of any audit, examination, investigation
or similar proceeding by any Tax Authorities have been paid or adequate
provision therefore has been recorded in First Respondent Accounts for
(the year before the relevant year).
(....)
The Company and each of the First Respondent Subsidiaries have duly
recorded in First Respondent Accounts for (the year before the relevant
year) their obligations in respect of all Taxes, or penalties, fines or sur¬
charges in relation to Taxes, due or that may become due by the Company
and each of the First Respondent Subsidiaries with respect to any periods
prior to the Closing Date inclusive and the provisions for Taxes as reflected
in those First Respondent Accounts provide a fair image of the potential
exposure of the Company and each of the First Respondent Subsidiaries in
relation therewith as of the Closing Date and have not been materially
underestimated in any manner.
Except as stated in Disclosure Schedule 4.11, there is no pending
subpoena, request for information, audit, examination, investigation or

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i CASE NO. 12745, 2005 ARBITRAL AWARDS

similar proceeding or any dispute with any Tax Authorities relating to the
4 Company or any First Respondent Subsidiary, nor have the Company or
s the First Respondent Subsidiaries entered into any settlement agreement
therein.
I The Company and First Respondent Subsidiaries do not own, have not
agreed to acquire any asset or to enter into any other transaction, and have
I
; not received or agreed to receive any services or facilities (including,
without limitation, the benefit of any license agreement), the consideration
of which was or will be in excess of or below its market value or determined
:ÿ otherwise than on at arm’s length basis. More specifically and except as
i-
provided in Disclosure Schedule 4.11, neither the Company, nor any First
Respondent Subsidiary, nor their shareholders has entered into or agreed to
enter into any inter-company transaction or arrangement which could lead
to or result in a tax liability for the Company or First Respondent
Subsidiaries.’
[252] “However, by virtue of Clause 8.1.3 of the SPA, Claimant may not
advance a breach of warranty claim in relation to facts or events that were
disclosed at the time of contracting:
‘All Representations and Warranties (except for the Z Contribution) are

made subject to any matter which is disclosed in Schedule 8 or any of the
shall thus not be liable in respect of any Claim (except for the Z Contribu¬
tion) to the extent that the relevant actions, facts or events giving rise to the
Claim were disclosed in Schedule 8 or any of the Disclosure Schedules or in
Part A of the Disclosure List. Any disclosed matter shall limit the contents
and scope of such Representations and Warranties (except for the Z Con¬
tribution) to the extent that such matter has been properly disclosed in the
Disclosure Schedules (contents and, where applicable, amount) or in Part A
of the Disclosure List.’
[253] “Claimant does not dispute that, in the instant case, Respondents prop¬
erly disclosed the fact that Company Z Italia SpA was being investigated by the
Italian tax authorities:
‘Disclosure Schedule 4.11.

Taxes:
General comment:
The First Respondent Subsidiaries are regularly controlled by the Tax
Authorities, as per local regulations and customary procedures and prac¬
tices. Moreover, copies of the services agreements are attached hereto.

Company Z Italia srl - None

Company Z Italia SpA:
Disclosure 4.11. First Respondent Taxes
The Italian tax authorities are currently investigating Company Z Italia
SpA for the two years preceding the relevant year.’
Accordingly, Claimant is barred from relying on a breach of the representations

and warranties made by Respondents as such were made subject to disclosures in
Schedule 8 to the SPA.
[254] “However, Claimant contends that its claim is based on a specific war¬
ranty given by Respondents with respect to investigations (Clause 10.1 of the
SPA) and which is not affected by Clause 8.1.3 of the SPA. Respondents dispute
this contention and assert that the parties’ intention was that the scope of Clause
10.1 would be limited to claims relating to investigations carried out by antitrust
authorities with respect to the supplier agreements. Therefore, the issue is
whether Claimant may claim indemnification of amounts owed by Company
Z Italia SpA to the Italian tax authorities on the basis of Clause 10.1 of the SPA.
[255] “In relevant parts, this provision reads as follows ... :
‘10.1 Specific warranties granted by the Guarantors with respect to inves-

tigation(s)
10.1.1 The Guarantors shall indemnify and hold harmless the Company or
the relevant Subsidiary or, if the Purchaser so chooses, the Purchaser,
against any and all losses, damages and expenses incurred as a result of
any investigation of any legal or regulatory authority, whether initiated
prior to the date hereof or thereafter, to the extent that such investigation
relates to any agreement, transaction, obligation, commitment,
understanding, or other arrangement, action or conduct, known or
unknown, or any combination of the foregoing (hereafter, any “Matter”)
relating to the Company or any Subsidiary, and the origin or cause of which
is prior to the Closing Date. In particular, the Guarantors shall assume, or
agree to pay, satisfy or remain unconditionally liable for any and all fines
and penalties and reasonable fees, costs and expenses arising out or related
to such investigation. This guarantee shall remain in force as long as the
Company or the relevant Subsidiary could be held liable with respect to any
Matter, the origin or cause of which is prior to the Closing Date.
Moreover should any of the contracts listed in Schedule 1.1.1.(c), prior to
its normal contractual date, be terminated or modified by any legal or
regulatory authorities for the reason of such investigation, then the

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Guarantors shall indemnify and hold harmless the Company or the relevant
Subsidiary, if the Purchaser so chooses, the Purchaser, against any and all
damages incurred by the Company or the relevant Subsidiary as a result of
such termination or modification, it being agreed that said damages shall be
calculated as set forth below.
The Parties shall then negotiate in good faith an amicable solution to
minimize and evaluate said damages, failing which the Parties shall appoint
an independent expert (the “Expert”). For the avoidance of doubt, it is
specified that Clause 12.10 shall not be applicable to said appointment of
the Expert. The Expert shall make a determination of such damages, which
shall be final and binding on the Parties and shall not be subject to any
recourse, except as necessary to enforce such determination. The Expert
shall fulfil its mission within a period of thirty (30) days after the date of his
appointment.
T.r •
Should the Parties fail to appoint the Expert within a thirty-day period as
from the request by either of the Parties to such appointment, then the most
diligent Party may via a ‘référé’ proceeding request the President of the
Commercial Court of Paris to appoint an independent expert. . . .
10.1.2 Warranties under Clauses 9 and 10
Should any factor event entitle the Purchaser to an indemnification under
both Clauses 9 and 10.1, then Clause 10.1 shall be exclusively applicable.
For the avoidance of doubt, it is specified that none of the limitations set
forth in Clause 9 shall be applicable to the specific warranties granted in
Clause 10.1.’
[256] “The grammatical interpretation of the above provision already shows

that the parties’ intention was that it should apply to investigations in connec¬
tion with the supplier agreements held by the First Respondent Subsidiaries. As
a matter of fact. Schedule 1.1.1(c) referred to in Clause 10.1.1(2) is a list of
supplier agreements held by certain Subsidiaries. As will be seen, the parties’
conduct at the time of contracting also demonstrates that the scope of Clause
10.1 of the SPA was intended to be limited to investigations carried out by
antitrust agencies.
[257] “It thus appears that, although with a slighdy different wording and
structure, this provision was first included in the draft share purchase agreement
relating to a subsidiary of Second Respondent, which, at the time, was being
investigated by the French Direction Générale de la Concurrence. This provision
was then entitled ‘Specific warranties granted by the Sellers with respect to
antitrust investigation(s)’.
:
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[258] “Moreover, Mr. V explained convincingly in his witness statement that

‘Clause 10 was inserted exclusively in order to cater for a situation where sup¬
plier contracts would be declared null and void by the competition authorities,
thereby reducing the value of the business that was going to be sold.’
Mrs. L’s general affirmation at the witness hearing that this type of clause is
usual in M&A transaction does not enable to depart from this finding.
[259] “It is telling that the parties included the disclosure of the ongoing tax
investigation into the Disclosure Schedule 4.11 to the SPA. If Claimant’s con¬
struction of Clauses 9 and 10 of the SPA were correct, then this disclosure would
have been perfectly useless and would produce no legal effect. It is a principle of
interpretation that a provision of a contract in case of ambiguity should be
constructed in such a way that it should produce some legal effect rather than
none (Art. 1157 of the FCC). Clause 10.1.2 of the SPA does not in any way
impair such logic.
[260] “Moreover, Clause 9 of the SPA specifically refers to investigations led
by ‘Tax Authorities’, a term which ‘has the meaning set forth in Art. 3.11 and
4.11 of Schedule 8’ (Clause 1.1.1 of the SPA), thus a rather limited and technical
meaning. On the contrary, the broad wording of Clause 10.1.1 of the SPA refers
to ‘any legal or regulatory agency’ a vocabulary that does not really fit the tax
authorities. Likewise, Clause 10.1.1(2) of the SPA refers to the damage incurred
if the said legal or regulatory authorities should terminate or modify a contract
listed in Schedule 1.1.1(c). Competition legal or regulatory authorities are more
often than not empowered to decree such kind of sanctions. It is most unusual
that the tax authorities may thus terminate or modify an agreement: in principle,
they will merely reassess the tax payable.
[261] “In light of the above, the Arbitral Tribunal finds that the parties’ inten¬
tion was to restrict the scope of Clause 10.1 to claims related to investigations
from antitrust authorities in connection with supplier agreements. It is thus
unnecessary to determine whether this Arbitral Tribunal would have jurisdic¬
tion to apply Clause 10.1 of the SPA in view of the provision of Clause
10.1.1(3).”
XI. RESPONDENTS’ COUNTERCLAIM FOR ABUSIVE PROCEEDINGS
(....)
[262] . "Art. 19 of the ICC Rules sets out the principle that the parties may not
advance new claims or counterclaims that are not within the limits fixed by the
Terms of Reference once these have been signed. In the instant case, it is undis-
putable that Respondents’ counterclaim for abusive proceedings is a new claim
and that it falls outside the limits of the Terms of Reference. Accordingly, this
counterclaim should in principle be declared inadmissible.

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I [263] “However, An. 19 of the ICC Rules confers upon the Arbitral Tribunal
the power to authorize the introduction of new claims after the signing of the
Terms of Reference in certain circumstances. The Arbitral Tribunal, which
retains broad discretion in this respect, must consider ‘the nature of such new
claims or counterclaims, the stage of the arbitration and other relevant circum¬
stances’. Respondents introduced their counterclaim for abusive proceedings in
their first written submission. Claimant could rebut it in both its second written
submission and its post-hearing brief. In other words, Claimant, which has had
ample opportunity to state its case in this respect, did not suffer any prejudice
from the fact that Respondents’ counterclaim was not mentioned in the Terms of
Reference.
[264] “This notwithstanding, the Arbitral Tribunal considers that this is not a
fit case for exercising its broad discretion. Respondents do not allege that
Claimant acted in bad faith during the proceedings but argue that the arbitration
itself was initiated in bad faith, which only came to light after the Terms of
Reference were signed.
[265] “This argument is without merit. Respondents knew perfectly the ins
and outs of Claimant’s action at the time the Terms of Reference were signed. In
fact, they were known to Respondents well before as, in accordance with the
SPA, Claimant had to file a notice setting forth the nature of its claim prior to
filing with the ICC. Moreover, it appears from the facts of this matter that
Respondents closely collaborated with Claimant until two months after the
Closing to try and resolve the situation in Italy. In fact, Respondents had already
stated four months after the Closing that Claimant’s position was not only
unwarranted but further inadmissible *dans la forme’. Therefore, the Arbitral
Tribunal shall not authorize Respondents’ counterclaim for abusive
proceedings.
[266] “In any event, the general principle is that everyone has a vested right in
a discretionary possibility to seek judiciary (or arbitration) remedies in case of
injury. A limitation to such vested right is to be construed very narrowly. As a
matter of fact, the French Cour de Cassation requires fraud, bad faith or such
recklessness that it is tantamount to a fraud:
‘(l’)exercice d’une action en justice . .. constitue en principe un droit et ne

dégénère en abus de droit pouvant donner naissance à une dette de dom¬
mages-intérêts que dans le cas de malice, de mauvaise foi ou d’erreur gros¬
sière équivalent au dol’.
(Cass, civ., 11 January 1973, in 1973 Gazette du Palais II, p. 710; Cass. Comm.,
4 July 1995, in Bull. Civ. IV, no 206. See also Malaurie/Aynès, Les obligations,
:
10th ed., Cujas, 1999/2000, no. 122, p. 63, who expressly require an intentional
or qualified (‘caractérisée’) wrongful act).
[267] “In order to prevail on their counterclaim for costs, Respondents should
therefore show a misuse of law ('abus de droit’). Respondents have not demon¬
strated that Claimant relied on groundless claims in bad faith. It is true that this
award finds largely in favour of Respondents. However, such a result was not
manifest from the outset.
[268] "Finally, Respondents did not adduce the first bit of evidence in support
of the extent of the loss allegedly incurred as a result of Claimant’s initiation of
these proceedings (€ 50,000). Therefore, the Arbitral Tribunal shall dismiss
Respondents’ counterclaim for abusive proceedings.”
XII. COST OF THE ARBITRATION
[269] “Claimant claims fees and expenses of € 1,028,161.27 (fn. omitted).

Respondents claim fees and expenses of € 812,376.67 (fn. omitted).
Respondents have objected to Claimant’s statement of costs, stating that no
description of the services rendered by Claimant’s counsel had been provided
whilst the latter handled other proceedings on behalf of Claimant and that the
‘in-house counsel time’ was extremely high, in particular as compared to the
time spent by Respondents’ executives. Based on this, Respondents requested
that, if appropriate, the Arbitral Tribunal reduce Claimant’s assessment to a
more reasonable figure.
[270] “Claimant’s counsel produced the detail of the services rendered to his
client. Moreover, counsel for Claimant confirmed that his firm did not represent
Claimant in any litigation before the French courts, the case referred to by
Respondents opposing Second Respondent to Company DEF and the services
rendered in this context being billed to Company DEF. Finally, Claimant’s
counsel noted that the cost of Claimant’s defence was roughly equal to the
cost of Respondents and specified that only the time of the three most involved
in-house counsel had been taken into consideration.
[271] “The ICC costs of arbitration amount to US$ 370,000.00. Towards this
amount, each of the parties paid an advance of US$ 185,000.
[272] “Within its Post-Hearing Brief, Claimant has asked the Arbitral
Tribunal to say that Respondents will bear all the costs of the arbitration and
indemnify Claimant for the legal costs it has sustained and will sustain in the
present proceedings, which precise amount will be provided to the Tribunal at a
iater stage. Within their Submission No. 3 (post-hearing submission),
Respondents have requested the Arbitral Tribunal to rule that in any event,
Claimant must bear all costs of the arbitration and indemnify Respondents
for the costs incurred in the present proceedings.

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* [273] “Under Art. 31(3) of the ICC Rules, 'the final Award shall fix the costs
of the arbitration and decide which of the parties shall bear them or in what
proportion they shall be borne by the parties’. It is accepted that this rule gives
the Arbitral Tribunal broad discretion in deciding on the costs of the arbitration,
which are defined at Art. 31(1). The only general requirement is that the Arbitral
Tribunal give the reasons for whatever solution it adopts, in accordance with
Art. 25(2) of the Rules (Derains/Schwartz, A Guide to the New ICC Rules of
Arbitration, The Hague 1998, pp. 340-344 and references).
[274] “A common method is to award costs to the party having won the
arbitration or, where there is no clear winner, to allocate costs in proportion
to the outcome of the parties’ claims (‘costs follow the event’). Another criteria
adopted by arbitral tribunals under the ICC Rules is the general conduct of a
party and the more or less serious nature of the case it has defended (Derains/
Schwartz, op. cit., pp. 341-342 and 344).
k [275] “In the instant case, Claimant has lost on most of its principal claims.
There should be no reason to depart from the principle that costs follow the
event. As this principle is understood and applied in international arbitration,
Claimant would bear the costs of this arbitration as well as all of Respondents’
reasonable legal and other costs.
[276] “However, Respondents do not fully prevail: the initiation of arbitra¬
tion proceedings was therefore neither abusive nor even unjustified. Moreover,
Respondents did breach the SPA. Claimant does not fall on the issue of breach
but rather on the issue of causation. It took significant effort and work for both
parties’ counsel to present their clients’ respective cases and to gather and
submit their evidence to the Tribunal on such issue and the final findings
in this connection were hardly discernible before the full evidentiary
proceedings.
[277] "Within the broad discretion Art. 31(3) of the ICC Rules leaves to the
arbitrators, it thus appears fit to order that Claimant shall bear 75% of the costs
of this arbitration, which allocation shall apply to both ICC costs and the
Respondents’ reasonable legal and other costs, Claimant bearing its own legal
and other costs.
[278] “The amount of Respondents’ costs has not been disputed by Claimant
and is roughly comparable to Claimant’s costs. There is no need to determine
whether the in-house counsel time included by Claimant is exaggerated.
Therefore, Claimant shall be ordered to pay Respondents the amount of
€609,282.50 as a contribution to the reasonable legal and other costs incurred
by Respondents for this arbitration.
[279] “The ICC costs have been fixed at US$ 370,000.00. Since both parties
have paid the advance in equal shares of US$ 185,000 each, Claimant shall pay
Respondents US$ 92,500.00.”

:
XIII. AWARD
[280] "Therefore, the Arbitral Tribunal hereby makes the following Award:
(1) Ordering that Respondents pay to Claimant the amount of €180,000.00,

plus compound interest at the French statutory rate on the amount so
awarded from the date of this Award until payment, being specified
(i) that two thirds of this amount (€120,000.00) shall be paid by Second
Respondent and one third (€60,000.00) by Z and
(ii) that any amount awarded to Claimant by the Italian courts to compen¬
sate it for the legal costs incurred in connection with the proceedings
initiated by Mr. X shall come into deduction of this amount.
(2) Ordering that Claimant bear 75% of the costs of this arbitration fixed by
the ICC International Court of Arbitration that is pay to Respondents the
amount of US$ 92,500.00.
(3) Ordering that Claimant pay to Respondents the amount of €609,282.50 as
a contribution to the reasonable legal and other costs incurred by Respon¬
dents for this arbitration.
(4) Denying all other claims of the parties.”

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Parties: Claimant: Contractor (Tunisia)

Respondent: Supplier (India)

arbitration:
Subject matters: - proof of damage

- United Nations Convention on Contracts for the
V- — failure to comply with discovery order
- failure to release payment security
- post-termination contractual obligations
- costs of arbitration
Summary
The CISG applied to a case between parties from non-CISG States because
the law applicable to their contract was the law of France, which is a CISG
State. All of claimant's claims were denied for failure to provide sufficient
and convincing evidence. The CISG requires proof that a damage has been
'’suffered”. Claimant did not supply such proof in respect of its alleged loss of
profit and loss due to fluctuation of the exchange rate between the Euro and
the US dollar. Nor did it prove that, had it suffered a loss, that loss would
have been caused by respondent's breach. As to an alleged loss of bank
interest because respondent did not release a payment security immediately
after the contract's termination, the tribunal held that Art. 81(1) second
-
sentence CISG which relevantly provides that avoidance of a contract
does not affect the contract’s provisions "governing the rights and obliga¬
tions of the parties consequent upon the avoidance of the contract”
comprises implicit contract terms, one of them being the release of payment
-
securities. However, in this respect too claimant failed to establish that it
suffered a loss. The arbitrators also dismissed for lack of proof claimant’s
claims for (i) general overhead costs, leaving open the question whether the
salaries of employees and executives dealing with the litigation could be
claimed under this heading, and (ii) moral damages, leaving equally open

the question whether the CISG allows such claim. Although claimant failed
in respect of all its claims, the origin of the arbitration lay in the respondent's
breach, and the tribunal decided that the parties should share the costs of the
arbitration equally and bear their own legal costs.
An entity of State X (the State X Entity) entered into a construction contract (the
State X Entity Contract) with a Tunisian contractor (Claimant) for the devel¬
opment of a project in State X (the Project). Claimant subsequently concluded a
subcontract for the delivery of a certain product to be used in the Project (the
Contract) with an Indian supplier (Respondent). The Contract provided for the
apphcation of French substantive law; it also contained an ICC arbitration
clause.
Upon conclusion of the State X Entity Contract, the State X Entity gave order
to a bank to open an irrevocable and non-transferable Letter of Credit in favour
of Claimant with a specified expiry date (the expiry date was later extended
several times). It was agreed that Claimant would assign the Letter’s proceeds
to banks that would then pay Claimant’s subcontractors. In the case at hand,
Claimant was to assign the proceeds of the Letter of Credit to the State Bank of
India (SBI) by a Letter of Assignment (the Assignment of Proceeds - AOP).
The Contract between Claimant and Respondent provided for delivery of the
product at a specified port of State X. The delivery was to take place in two lots,
twenty and twenty-four weeks, respectively, following the receipt by
Respondent of the AOP.
Claimant issued the AOP four months after conclusion of the Contract.
Respondent informed Claimant at first of the measures it had undertaken to
fulfil its obligations but, shortly thereafter, it sent Claimant an e-mail in which it
referred to the “war-like situation/Force Majeure conditions” in State X and
raised several issues: inter alia, that both the costs of the raw material for the
product and freight costs had risen and that it could not get insurance cover for
State X. Respondent concluded that it would have to stop production unless
these issues were resolved. Respondent claimed that it would have executed the
Contract had there not been a delay of four months between the signature of the
Contract and the issuance of the AOP.
Claimant insisted in turn that Respondent perform in accordance with the
Contract’s original terms. At that point, serious disturbances broke out in State
X and all deliveries thereto were temporarily stopped. When disturbances
ended, the Project was allegedly revived and Claimant asked Respondent
whether it was still willing to fulfil its obligations, to which Respondent replied
that the initial conditions were no longer applicable and requested a substantial
increase of the contract price. Claimant replied that if Respondent failed to
confirm within two days its willingness to perform under the original terms

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of the Contract it would consider that Respondent had decided unilaterally to
terminate the Contract. When Respondent did not reply, Claimant sent
Respondent an e-mail (the termination e-mail), stating that by not replying
Respondent had unilaterally terminated the Contract and asking Respondent
to cancel the AOP in its favor.
Claimant subsequently commenced ICC arbitration against Respondent as
provided for in the Contract. The arbitral tribunal first rendered an Interim
Award on Provisional Measures, ordering Respondent to release the AOP.
Respondent complied with this award. Six months later, the tribunal rendered
ÿ a Partial Award on the Merits, followed by an Addendum, in which it held that
A. the Contract had been terminated by the termination e-mail, that the termina¬
tion was imputable to Respondent’s breach of contract and that Respondent was
not excused for this breach. The arbitrators reserved their decision on the
quantum of damages.
In the subsequent proceedings, Respondent filed a request for discovery by
Claimant in respect of (i) the status of the State X Entity Contract; (ii) the status
of any agreement replacing the Contract and (iii) the status of any subcontract
whose performance has been delayed and/or has caused delay in the perfor¬
mance of the State X Entity Contract. By Procedural Order no. 6, the arbitral
tribunal ordered Claimant to submit certain categories of documents. In accor¬
dance with this Order, Claimant supplied a certain number of documents.
At the oral hearing, Claimant announced that due to the expiry of the Letter of
Credit the State X Entity Contract had come to an end. No relevant documents
were submitted. It also withdrew two substantial claims, namely, the request for
payment of the difference between the contractual price of the product and its
current price and a penalty claim for late shipment.
By the present Final Award - which incorporated the Interim Award on
Provisional Measures, the Partial Award on the Merits and the Addendum
thereto - the arbitral tribunal rejected all of Claimant’s claims for lack of proof.
The arbitrators held at the outset that the United Nations Convention on
Contracts for the International Sale of Goods (CISG) of 11 April 1980 applied,
as the parties chose French law to govern their contractual relation; France is a
contracting state to the CISG, though Tunisia and India are not.
The arbitral tribunal stated that it had previously decided in its Partial Award
on the Merits that the Contract was terminated by the termination e-mail, that
Respondent breached the Contract and that it was not excused for this breach.
The Final Award therefore only concerned the issue whether Claimant was
entitled to damages and the issue of who would bear the costs of the arbitration.
The tribunal noted preliminarily that Claimant failed to fully comply with the
discovery order in Procedural Order No. 6, in particular in respect of the status
of the State X Entity Contract, the performance of other subcontractors and the
I
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impact of the disturbances in State X. The tribunal was also “completely left in
the dark” in respect of the reaction of the State X Entity to the non-delivery of
the product by Respondent.
Claimant failed to give an acceptable explanation for this failure. In particular,
the tribunal dismissed Claimant’s argument that the issue in arbitration was the
Contract between Claimant and Respondent rather than the State X Entity
Contract, reasoning that various claims before the arbitrators had a relation
to the latter contract and that the consequences of Respondent’s breach could
not be appreciated without taking into consideration the main contract and its
performance.
Before dealing with the specific claims, the tribunal stated that, contrary to
Claimant’s opinion, the Partial Award on the Merits did not find that Claimant
was entitled to damages. Rather, it found that Respondent committed a breach
of contract; this does not entail ipso facto an entitlement to damages. Thus, the
Partial Award had no res judicata effect on Claimant’s entitlement to damages.
The arbitral tribunal then examined Claimant’s claims. It first dismissed the
claim for loss of profit, holding that it was neither convinced that Claimant
actually suffered a loss, nor, if a loss was suffered, that it was caused by
Respondent’s breach of contract.
Art. 74 CISG explicitly includes loss of profit among the damages that have to
be compensated. It also requires that damage must have been “suffered”. In the
present case, it appeared at first glance that Claimant did suffer a damage, since it
could not realize a profit. However, several factors pointed in the opposite
direction and, in the absence of information on most aspects of the case, led
the arbitrators to doubt first and then conclude that Respondent’s breach did not
cause any damage to Claimant in this respect.
The tribunal noted in particular that Claimant failed to give a satisfactory
explanation for its choice not to make a cover purchase to meet its obligations
under the State X Entity Contract. The most likely explanation, found the tri¬
bunal, was that Respondent’s product was no longer needed for the Project.
Further doubts arose because Claimant’s position as to the quantum of its loss of
profit was so “simplistic” as to hurt “common commercial sense”. Claimant
namely appeared to confound gross margin with profit. The arbitrators stressed
that they had the impression that there were many facts which Claimant did not
tell, most likely because they would have stood in the way of its arguments.
These doubts “finally prevailed over the initial preparedness to award
damages after the breach of contract committed by Respondent”, since
Claimant failed to convince the arbitral tribunal that it suffered a damage and
that that damage was caused by Respondent’s breach and not by other factors.
The tribunal then dismissed Claimant’s request for damages for loss of bank
interest. Claimant argued that due to Respondent’s refusal to release the AOP

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f immediately after the contract was terminated, it had not been able to request
§ payment for certain goods and services and as a consequence lost the interest that
it would have earned if it had cashed the money and invested it.
I The arbitral tribunal first found that Respondent was indeed obliged to release
the AOP following avoidance of the Contract. It noted that Art. 81(1) second
sentence CISG - which provides that avoidance does not affect any provision of
I the contract governing the rights and obligations of the parties consequent upon
the avoidance of the contract - was not helpful since, taken literally, it seems to
refer only to specific contractual provisions that are applicable after the con¬
tract’s termination (such as confidentiality clauses, clauses providing for resti¬
tution of documents, etc.). Such provisions, in the tribunal’s experience, are
seldom concluded; this was also the case here. Nor were commentaries to the
CISG of assistance; specifically, reliance on the rules of undue enrichment when
& describing the scope of post-avoidance contractual obligations was inadequate,
il as these obligations may be substantial and complicated. The arbitrators con¬
cluded that Art. 81(1) second sentence CISG also comprises implicit contract
terms, such as the release of payment securities. Thus, the tribunal held that
subsequent to avoidance Respondent had an obligation to release the AOP.
A failure to comply with this obligation can give rise to damages if a loss is
proven and a causal link is established. However, in the case at hand Claimant
again failed to establish that it suffered a loss, since the documents it supplied
were irrelevant.
Claimant also claimed damages for loss due to fluctuation of the exchange rate
between the Euro and the US dollar. It argued that it purchased equipment from
a supplier in Euros and, due to the fact that the AOP was still blocked when the
goods were ready to ship, it could not pay its supplier at that time. When pay¬
ment was finally made, the Euro had increased against the US dollar.
The arbitrators again found that the documents submitted by Claimant were
inconclusive and failed to justify the claim.
Claimant’s claim for general overhead costs was equally unsuccessful, also for
lack of proof, as Claimant only submitted an estimate and did not support its
claim by any evidence. The tribunal therefore left open the question whether the
salaries of employees and executives dealing with the litigation could be claimed
under this heading.
The arbitral tribunal then dismissed Claimant’s claim for aggravated
damages, by which Claimant sought “moral damages” and damages for loss
of reputation. The tribunal held that the latter was not proven in any way
and that it need not decide whether the CISG allows a claim for moral damages
because Claimant failed to supply any evidence in this respect.
The arbitrators finally noted that Claimant had prevailed in the first phase of
this arbitration, while fully losing the second and withdrawing two substantial

claims. On the other hand, the origin of the arbitration was Respondent’s
breach. The tribunal therefore decided to allocate the costs of the arbitration
by taking into account the origin of the dispute, not only “who wins in the end”.
It concluded that the parties should share the costs of the arbitration equally and
bear their own legal costs.
Excerpt
[1] “The Tribunal summarises its understanding of the agreed payment mech¬
anism as follows:
(1) Upon conclusion of the Contract with the State X Entity, Bank X opened
an irrevocable non-transferable letter of credit [LC] in favour of Claimant with a
specified expiry date. With respect to the payment of the subcontractors and in
view of the non-transférable character of the LC, it was provided that the pro¬
ceeds of the LC were assigned to a bank which would procure the payment to
the subcontractor. In the present case the ‘assignment of proceeds’ or ‘Letter of
Assignment’ was issued to the State Bank of India [SBI]. The AOP has the same
irrevocable character as the letter of credit. The Tribunal understands that pay¬
ment under the AOP can be claimed according to the same documentary con¬
ditions as set forth in the LC.
(2) Following the Interim Award on Provisional Measures, the AOP was
released.
(3) The validity date of the letter of credit issued in favour of Claimant was
initially fixed for a certain specified date. About five months after that date, the
LC was modified with an expiry date the following year.
(4) Claimant has not undertaken a cover purchase of the product.
[2] “During the Hearing, Claimant announced that the LC under the State X
Entity contract had come to an end as well as the contract with the State X
Entity. Whereas Claimant did not submit any evidence in this respect,
Respondent produced two Exhibits from which it results that indeed the
Claimant/State X Entity contract came to an end, but not the Project. It further
results that the product has not been supplied under the original contract. Items
3.4 to 3.6 of the first of the above two [Exhibits] - Minutes of a Meeting of high
ranking officials of the State X Ministry concerned - reads:
‘3.4 To notify the Tunisian company (Claimant) through an appropriate

letter of the decision to consider that the materials it supplied are sufficient
as a preliminary step towards the termination of the contract and the ami¬
cable and fair settlement of the outstanding matters.

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: CASE NO. 13133, 2007 ARBITRAL AWARDS

I 3.5 To continue [illegible] in the Project.
I 3.6 To continue the proceedings for the purchase of a smaller quantity of
£ the product.’
I
Í [3] “Further facts will be set out when dealing with the respective claims.”
I
I. APPLICABLE LAW
&
I [4] “The present Arbitration has been introduced on the basis of Art. 24 of the
Contract concluded between Claimant and Respondent, which reads as follows:
I
A
t: i ‘The present Contract shall be governed by and constructed under the

substantive law in force in France.
Any dispute arising in connection with this Contract that cannot be
.a. solved amicably, shall be finally settled by Arbitration.
The Arbitration shall be conducted in English Language in accordance
with the Rules of Conciliation and Arbitration of the International Cham¬
ber of Commerce.
The place of arbitration shall be Paris, France.’
[5] “Para. 1 of Art. 24 of the Contract provides: ‘The present Contract shall be
governed and construed under the substantive law in force in France.’ France is a
member state of the United Nations Convention on Contracts for the
International Sale of Goods (‘CISG’) of 11 April 1980 (Decree No. 87 - 1034
of 22 December 1987). The CISG applies to contracts of sale of goods between
parties whose places of business are in different states, when these states are
contracting states (Art. l(l)(a)) or when the rules of private international law
lead to the application of the law of a contracting state (Art. l(l)(b) CISG).
[6] “The Contract is a contract of sale; none of the exceptions of Art. 3 CISG
apply.1 The parties have their places of business in different states, but neither
Tunisia nor the Republic of India are contracting states. The parties have agreed
though to apply French law. The CISG is part of French law. Within French
1. Art. 3 of the United Nations Convention on Contracts for the International Sale of Goods (1980)
- CISG reads:
“(1) Contracts for the supply of goods to be manufactured or produced are to be considered sales
».
unless the party who orders the goods undertakes to supply a substantial part of the materials
necessary for such manufacture or production.
(2) This Convention does not apply to contracts in which the preponderant part of the obligations
of the party who furnishes the goods consists in the supply of labour or other services.”
;;
law, CISG is lex specialis with respect to international sales contracts.

Consequently the CISG applies in the present case.”
II. PROCEDURAL BACKGROUND
[7] “The Tribunal rendered two awards in this arbitration, namely an Interim
Award on Provisional Measures and six months later a Partial Award on the
Merits followed by an Addendum the following month. The two Awards and
the Addendum are hereby incorporated by reference into this Final Award.
[8] “The subject matter of the Interim Award on Provisional Measures was to
order Respondent to release the AOP and to allow Claimant to use the
corresponding funds for the further execution of the contract with the State
X Entity. When ordering Respondent to release the AOP the Arbitral
Tribunal found that the Contract between Claimant and Respondent had
been avoided (terminated) by the termination e-mail. The AOP was released
after the issuance of the Interim Award on Provisional Measures.
[9] “The Partial Award on the Merits dealt with the issue of whether this
avoidance was imputable upon Respondent and whether Respondent was
excused for it. The Tribunal, with a decision supported by its majority, came
to the conclusion that Respondent breached the Contract and was not excused.
The dispositive part of this Award reads as follows:
c(l) Respondent has breached the contract.

(2) Respondent is not excused for the breach.
(3) The termination by the termination e-mail was caused by Respondent’s
breach and is as such justified.
(4) Failing a breach of contract by Claimant there is no basis for Respon¬
dent’s counter-claim which is hereby rejected.
(5) The decision on the Quantum of Claimant’s damages, the decision on
costs and all other decisions are reserved.’
[10] “Procedural Order No. 5 organised the sequence and the dates of the
Memorials to be submitted in this second phase of the Proceedings.
[11] “Subsequent to Claimant’s Memorial on Quantum, Respondent submit¬
ted its ‘Memorial in Response on Damages’. Simultaneously it filed a request for
discovery, in which it asked the Tribunal to order Claimant to ‘completely
inform the tribunal and Respondent about (1) the status of the State X
Entity/Claimant agreement; (2) the status of any agreement replacing
Respondent/Claimant subcontract as the case may be and (3) the status of
any subcontract the performance of which has been delayed and/or has caused
delay in the performance of the State X Entity/Claimant agreement, and

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produce to the tribunal and Respondent complete copies of the following docu¬
ments Respondent specified in six subsequent paragraphs the documents
which it requested.
[12] “After having obtained Claimant’s comments, the Tribunal issued
Procedural Order No. 6 and ordered Claimant, on the basis of Art. 20(5) of
the ICC Rules, to submit certain categories of documents. The Tribunal granted
Claimant an extension of time for the submission of its rejoinder and the docu¬
ments in fulfilment of the Discovery. Procedural Order No. 8 clarified upon
Respondent’s request one aspect of Procedural Order No. 6. Due to settlement
negotiations, the Tribunal granted, upon request of both parties, an additional
time for the submission of Claimant’s reply and for Respondent’s rejoinder
(Procedural Order No. 9). Both submissions were received in due time.
[13] “The Tribunal issued Procedural Order No. 10, fixing the hearing date. In
view of the preparation of the Hearing, the Tribunal instructed the Parties that
£' ‘no new documents nor pleadings shall be accepted any more’. On the following
day, Claimant submitted pleadings in the form of a letter and ten new documents
(the post-expiry documents). It requested that the Tribunal disregard
Respondent’s letter addressed by the director general of the State X Entity to
Claimant’s chairman, submitted together with Respondent’s Memorial.
[14] “Claimant’s Counsel requested the Arbitral Tribunal that ‘the next
Hearing will be held as the previous Hearing in French’ and said that it
would take in charge the fees of the translator. The Chairman answered in
the following terms: ‘The language of the Arbitration is English and not
French. This cannot and will not be modified. The previous Hearing was
held in English with Claimant speaking in French through an English translator.
Only the English translation was taken into account and transcribed by the
Court reporter.’ This way to proceed was accepted by Claimant’s Counsel in
a fax.
[15] “With Procedural Order No. 11, the Tribunal rejected the post-expiry
documents and declined Claimant’s second request. Reference was made to
Procedural Order No. 10. Claimant objected and, on the basis of the
Tribunal’s letter, the subject matter was discussed at the Hearing.
[16] “The Hearing took place at the ICC headquarters. Since Claimant’s
Counsel wished to express herself in French, upon her request a translation
from the French to the English language and vice versa was provided, the
costs of which are borne by Claimant. The session was recorded by a court
reporter, who later distributed a verbatim transcript of the session.
[17] “At the Hearing, the admissibility of Claimant’s post-expiry documents
was discussed as a preliminary issue. Respondent’s Counsel declared that he
was not opposed to their admission, upon which the Tribunal decided that
these documents were admitted. As a preliminary issue as well, one of the

co-arbitrators made a declaration with respect to Claimant’s Counsel’s wish to

plead in French. In his opinion, even though the pleading is translated in English,
this is not in accordance with the Terms of Reference and the agreement of the
Parties for the use of the English language. The Chairman of the Tribunal com¬
mented that statement by saying that this opinion was not shared by the other
members of the Arbitral Tribunal and that the Terms of Reference were fully
respected since only the translation into the English language would be taken
into account.
[18] “During her oral pleadings, Claimant’s Counsel announced that due to
the expiry of the Letter of Credit under the State X Entity contract, the contract
with the State X Entity had come to an end. No documents about this new
development were submitted. Further Claimant withdrew two of its claims,
namely the request for payment valued at US$ 5,695,211 being the difference
between the price fixed hy the contract with Respondent and the ‘current price’.
Additionally, the penalty claim for late shipment of US$ 574,165 was
withdrawn.
[19] “On the second day of the Hearing, Respondent’s Counsel observed that,
even though he communicated the information of the termination of the State X
Entity contract to his client by phone, he reserved the right to comment on it
later on.
[20] “Subsequent to the Hearing, the Tribunal issued Procedural Order No.
12, in which it ruled on comments to the transcript and the submission of
additional documents by Respondent with respect to the termination of the
State X Entity contract.
[21] “The Parties and two members of the Tribunal submitted ‘errata lists’ to
the transcript which were exchanged and annexed to it. Respondent handed in a
brief submission together with three additional documents on the issue of the
termination of the State X Entity contract. Claimant was given a time limit to
comment on this submission. Claimant replied, upon which the Tribunal
informed the Parties that it would deliberate on the basis of the submitted
arguments and documentary evidence.
[22] “The submissions on the costs were made and one week later the Arbitral
Tribunal closed the proceedings (Art. 22(1) of the Rules).
[23] “By application of Art. 24(1) of the ICC Rules, the initial time limit for
rendering the Award was [a certain date]. The ICC International Court of
Arbitration extended this time limit for rendering the Final Award. . . .”
III. THE PARTIES’ CLAIMS
[24] “The Tribunal was initially seized with a Claim amounting to US$
14,809,000 and a counterclaim of US$ 2,083,155. After rejecting Respondent’s

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i; counterclaim in the Partial Award on the Merits, Claimant modified its claim by
claiming altogether US$ 11,950,474 and €300,000. At the Hearing, Claimant
Í declared that it withdraws two of its claims, namely the one for the difference
between the price fixed by the contract with Respondent and the ‘current price’
for US$ 5,695,211, and the claim aiming at the payment of the penalty for late
shipment of US$ 574,165. Following the withdrawal of these two claims and,
upon invitation by the arbitrators to check the exact amounts of its claims,
Claimant requests the tribunal to order Respondent to pay to Claimant as
damages:
r
Loss of profit: US$ 3,973,864
* Loss of bank interest: US$ 271,354
Loss due to fluctuation of US$ 483,082
the exchange rate:
* General overhead costs: US$ 420,000
Aggravated damages: US$ 400,000
Interest: the amount as calculated by the
arbitral tribunal
Legal costs: US$ 165,000 and € 400,000
These amounts take into account an increase of the claims made at the Hearing
for general overhead costs from US$ 400,000 to US$ 420,000 and the claim for
reimbursement of legal costs from €300,000 to €400,000. No additional docu¬
ments (except for legal costs within the submissions of [a certain date]) were
produced.
[25] “Respondent requests the Tribunal:
(a) to dismiss all claims made by Claimant;

(b) in the alternative, reduce the amount of damages awarded to Claimant in
accordance with Claimant’s duty to mitigate its damages pursuant to Art.
77 CISG;2
(c) order Claimant to pay all the costs of the arbitration including the costs of
Respondent’s Counsels and experts; and
(d) grant Respondent any other relief that the tribunal will deem just and
appropriate.
2. Art. 77 CISG reads:

“A party who relies on a breach of contract must take such measures as are reasonable in the
circumstances to mitigate the loss, including loss of profit, resulting from the breach. If he fails to
take such measures, the party in breach may claim a reduction in the damages in the amount by
which the loss should have been mitigated."

■
At the Hearing, Respondent modified its previous request under (c) and for¬
mulated a new one as recorded above.”
IV. ANALYSIS
[26] “The Tribunal has previously decided that the Contract between
Claimant and Respondent was terminated by the termination e-mail, that
Respondent breached the Contract and that it was not excused for this breach.
The subject matter of this Final Award is to determine whether Claimant is
entitled to damages pursuant to Arts. 74 to 77 CISG and the issue of who has
to bear the costs of this arbitration.”
1. Discovery
[27] “Prior to the examination of the individual claims, the Tribunal has to
address the issue of the discovery ordered by Procedural Order No. 6 and
commented in Procedural Order No. 8. The conclusion, which the Tribunal
will draw from this issue, has an influence on its position with respect to the
claims. Following Respondent’s request and after having given Claimant the
opportunity to comment, the Tribunal ordered the production of documents
as specified, detailed and listed in Procedural Order No. 6. The Tribunal gave
detailed reasons for its decision and explained the relation and pertinence of the
requested documents with the issues at stake. After having granted the time
requested by Claimant, Claimant submitted thirty-five documents, out of
which ten are legal texts, others have been submitted and only the remaining
documents were submitted in fulfilment of Procedural Order No. 6.
[28] “In particular the following areas though covered by Procedural Order
No. 6 were largely or totally omitted from Claimant’s submission:
(i) The execution of the State X Entity contract.

(ii) The impact which the war-like situation had on the execution of the State
X Entity contract.
(iii) The performance of the other subcontractors and how these performances
were influenced by the war-like situation in State X.
(iv) The claims made by the State X Entity.
(v) The claims made by Claimant against the State X Entity
Consequently, the Tribunal and Respondent are completely left in the dark with
respect to the conditions of the fulfilment of the State X Entity contract, to the
reaction of the State X Entity in view of the non-delivery of the product, the
impact of the disturbances in State X on this contract and the degree of contract
execution overall.

ST.
-
i
[28] “Through the comparison of the various modifications of the letter of
I
: credit, the Tribunal understood that the contract amount was reduced from
V: initially US$ 51,932,155 to US$ 47,211,050 and the LC was finally reopened
for US$ 21,697,591.06. The Tribunal later on learned that the total amount
?: executed under the Contract was around US$ 24,000,000. Even if the
Tribunal, for calculation purposes only, adopts Claimant’s view that the
AOP blocked the Contract execution for an amount of around US$
11,000,000, it has no information why only part of the Contract was executed,
nor why the initial Contract amount was so drastically reduced.
[29] “A dim light was shed on these issues by one of Respondent’s submis¬
sions and in particular [a certain document]. Even though it may well be that
v Claimant is not in possession of that (internal) document, it ought to have
informed the Tribunal about a number of facts which implicitly result from
the minutes of meeting (no delivery of the product, reduction of the contract
amount, and consequently of the scope and the envisaged ‘amicable and fair
setdement of the outstanding matters’).
[30] “Claimant’s position in respect of non-compliance with the discovery is
unfounded. As far as it alleges a confidentiality agreement, the Tribunal has not
seen one and reminds Claimant that it specifically offered the possibility to black
out or otherwise cope with this problem. The argument that the issue of the
litigation is Claimant/Respondent contract and not the State X Entity contract is
unfounded. Various claims have a relation to the State X Entity contract. The
Tribunal needed to know the attitude of the State X Entity in respect of the non-
fulfilment of Respondent contract, the time schedule, the influence of the dis¬
turbances, etc. Consequences of the breach of contract committed by
Respondent cannot be appreciated without taking into consideration the
main contract and its fulfilment.
[31] “These reasons were clearly put forward in Procedural Order No. 6.
Non-compliance by Claimant with the Procedural Order and lack of pertinent
explanations in Claimant’s Memorials and at the Hearing deprives the Tribunal
and Respondent of knowing the relevant facts about the fundamental issue of
this second phase of the Arbitration, namely why Claimant did not make a cover
purchase.
[32] “Claimant must have explained to the State X Entity the failure of one of
its suppliers and its own failure to supply the product for two and a half years.
How did the State X Entity react? How can it be explained that such a major part
of the Contract (around 20% of the whole contract value) was never supplied? If
one takes into account that the alleged profit on the product supply was, to say
the least, considerable, a ‘normal’ supplier would have been eager to proceed to a
cover purchase as quickly as possible. Claimant argues that the ‘windows’ for
using the LC were too short. Claimant had, as from the date the AOP was
released, the opportunity to use the eventually reopened and extended letter

of credit. Consequently, Claimant’s explanations might be right for certain time

periods but are not convincing for the whole period.
[33] “As it results from a Respondent’s letter, the Parties met in February of
the year following the Partial Award on the Merits. Had they reached agreement
at that time, Respondent stresses that it would have been possible to deliver the
new product within the time frame imposed by the new letter of credit. The
reason for not delivering was finally the disagreement on the sales price of US$
8,750,000. Claimant has not alleged to have made any other attempt to find
another supplier.
[34] “The Tribunal is not satisfied with the reasons given by Claimant. This
statement is of great importance, even after Claimant dropped its first claim for
the difference of prices. Not having understood Claimant’s attitude - the
Arbitral Tribunal is composed of three arbitrators who have wide experience
in international trade - the Tribunal was as well doubtful with respect to
Claimant’s other claims.
[35] “The Tribunal wants to add that it indicated quite clearly, in particular in
Procedural Order No. 6, that Claimant bears the burden of proof for its allega¬
tions. It added (page 4, sub 6 of Procedural Order No. 6):
‘Since neither Respondent nor the Tribunal are yet sufficiently informed
about the fullfilment of the State X Entity Contract and any replacement
contract, it is in Claimant’s own interest to submit any relevant document.’”
2. Res Judicata
[36] “The Tribunal has to discuss Claimant’s arguments in respect of res judi¬
cata of the first two Awards. Claimant argues that the Partial Award on the
Merits contains a statement that Respondent is liable to pay damages, whereas
Respondent’s position is that the Partial Award does no more than to state the
breach and its imputability and that Claimant is entitled, according to Art. 45
CISG,3 to claim damages as provided for in Arts. 74 to 77 CISG.

“(1) If the seller fails to perform any of his obligations under the contract or this Convention, the
buyer may:
(a) exercise the rights provided in articles 46 to 52;
(b) claim damages as provided in articles 74 to 77.
(2) The buyer is not deprived of any right he may have to claim damages by exercising his right to
other remedies.
(3) No period of grace may be granted to the seller by a court or arbitral tribunal when the buyer
resorts to a remedy for breach of contract.”

■■■"■i — _ ~
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[37] “The Partial Award states on p. 15 under No. 4 just before the dispositive
part:
Í
'
‘With respect to Claimant’s request, the majority of the Arbitral Tribunal
; decided that the contract is terminated and that Respondent has committed
a breach of contract. Consequently, by applying Art. 45(1)(b) CISG Claim¬
ant is entitled to claim damages from Respondent.’
[38] “The dispositive part of the Award is confined to stating that there was a
I
;
breach and that that breach is imputable on Respondent. It flows from that that
the Tribunal did not pronounce any entitlement to damages but, by quoting
literally Art. 45 CISG, only said that Claimant is ‘entitled to claim damages’.
l Consequently, the Partial Award only lays the ground for a claim for damages.
[39] “The mere fact of a breach, be it deliberate or negligent (a qualification
■i:
which has no place in the system of the CISG rendering superfluous any dis¬
cussion on that subject) does not entail ipso facto an entitlement to damages. The
res judicata effect of the Partial Award stops at the statement that there is an
entitlement to claim damages; the Partial Award does not state that there is
already an entitlement to damages or compensation. For this to be so, the addi¬
tional requirements of Arts. 74 to 77 have to be fulfilled.”
3. Claims
[40] “The Tribunal will now examine, one by one, the individual claims raised
by Claimant. Claimant raises seven items (including the claim for reimburse¬
ment of the costs of this arbitration). They will be examined in the order in
which they are raised.”
a. Loss of profit
[41] “Following abandonment of its initial claim for the difference between
the price fixed by the Contract and the ‘current price’, Claimant claims com¬
pensation for loss of profit of US$ 3,973,864. It refers to one of the Exhibits
submitted. Items 7 to 14 of the itemised price list of the State X Entity contract
contain prices for the ‘product and its accessories’. The overall amount for the
listed quality and quantities of product is US$ 11,483,315. Claimant subtracts
from this amount the contract price agreed upon with Respondent, namely US$
7,510,136. Claimant rounds down, in its calculation, the contract sum with the
State X Entity to US$ 11,483,000 and increases the one concluded with
Respondent by US$ 315. Even though the figures are incorrect, the result is
the same. This subtraction results in a figure of US$ 3,973,864.

'5
[42] “Claimant supports these heads of claim by relying on Art. 74 CISG4

according to which loss of profit is part of the loss to be compensated and quotes
among others two decisions of ICC arbitral tribunals, having decided in this
sense.
[43] “Respondent replies that Claimant does not demonstrate that it suffered
any actual loss. It further submits that the calculation which Claimant makes is
‘simplistic’ since it is not established that the difference between the contract
with Respondent and the prices in the State X Entity contract were true ‘profit’.
A profit of 53% on an item as ordinary as the product at issue here is extraor¬
dinary and requires specific justification which Claimant does not furnish. No
analytical accounting of Claimant’s business or the State X Entity contract is
submitted. According to Respondent, Claimant fails to take eventual additional
costs into consideration as these costs have been itemised in [an expert report].
[44] “Claimant replies to these arguments that additional costs like inspection,
erection, supervision and engineering are separate items and shown in Art. 4 of
the State X Entity contract. It does, however, not submit any further justifica¬
tion nor information about how the profit is calculated.
[45] ‘‘The Arbitral Tribunal is neither convinced that Claimant actually suf¬
fered a loss, nor, if a loss was suffered, that it was caused by Respondent’s breach
of contract, nor, subsidiarily, of the amount of damages.
[46] “Art. 74 CISG explicitly includes the ‘loss of profit’ into the damages
which have to be compensated. However, Art. 74 CISG specifically requires
that the damage, including the loss of profit, must have been ‘suffered’. That
means that the damage must have occurred, that it is not only hypothetical or
potential.
[47] “It appears at first glance that Claimant ‘obviously’ suffered a damage
since it could not realise the ‘margin’ which it calls profit. If Respondent had
performed, Claimant would have received the difference between the purchase
price and the sales price, e.g. the amount which it claims. Important elements of
the case render, however, this conclusion highly doubtful.
[48] “Due to the fact that Claimant made no serious attempt to undertake a
cover purchase and that the Tribunal was insufficiently informed about the
fulfilment of the State X Entity contract, the members of the Tribunal became
more and more doubtful whether Respondent’s breach effectively caused a

“Damages for breach of contract by one party consist of a sum equal to the loss, including loss of
profit, suffered by the other party as a consequence of the breach. Such damages may not exceed
the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion
of the contract, in the light of the facts and matters of which he then knew or ought to have known,
as a possible consequence of the breach of contract.”

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damage to Claimant. Most of the questions raised in this respect remained
without a satisfactory answer. This leads to a situation where the doubts prevail
over the normal course of the events.
[49] “The Tribunal has all through the proceedings been wondering why
Claimant did not actively pursue to undertake a cover purchase. It can be safely
stated that there was no serious effort on Claimant’s side to do that. The offers
from three named companies are neither negotiated nor do they entirely corre¬
spond to the Contract. Since then, no further effort was made. The Tribunal was
indeed surprised that, when the procedure started anew after the Partial Award
on the Merits, it received the same documents as produced at the beginning of
the arbitration, which are, to say the least, a preliminary exploration of some
suppliers. A ‘normal’ business operator would have acted differently. The
margin which Claimant is alleging was so important that it would have incited
every reasonable business operator to realise it. There must have been other
reasons.
[50] “The only reason given by Claimant for not having made a cover purchase
is that the successive validity periods of the letter of credit were too short. When
the letter of credit was reopened three months after the Partial Award on the
Merits, it provided for shipment until April of the following year. The letter of
credit was probably not reopened without prior negotiation between the con¬
tracting parties (Claimant and the State X Entity). If it had been too short,
Claimant would have protested and claimed against the State X Entity that
the insufficient validity period prevented it from fulfilling the contract.
Moreover, in order to comply with a shorter validity, Claimant could have
approached suppliers and prepared the conclusion of the contract. The validity
of a letter of credit has to take into account the delivery periods of the suppliers,
Additionally, Claimant, in February of the year following the Partial Award on
the Merits, was able to deliver within the remaining time period even though it
was much shorter than the initial delivery period.
[51] “For all those reasons, Claimant’s arguments did not convince the
Tribunal.
[52] “The Tribunal received very little information about the fulfilment of the
State X Entity contract. This was, however, one of the key elements of the
discovery order. On the basis of the documents submitted by Respondent, it
turned out that the product finally was no longer required. This may explain that
no real attempt for a cover purchase was made. It may be that the Project
suffered changes following the disturbances in State X. How did the State X
Entity react when it became aware that a major part of the contract could not be
supplied in time? No delay penalties were applied. It seems that there was a cde
facto’ reduction of the State X Entity contract which may have been the result of
the disturbances and not of Respondent’s non delivery.

[53] “Further doubts result from the documents submitted by Respondent

subsequent to the Hearing. Subsequent to the Hearing, Respondent submitted
two documents. One is a document in a non-English language. Based on the
English translation, submitted as well by Respondent, it is a Minutes of meeting
of high ranking officials of the State X Ministry concerned held [in the year
preceding the present Award]. The decisions resulting from this meeting are:
‘3-1 The equipment and materials that have already been supplied are suf¬
ficient (in addition to those which will arrive soon).
3-2 Department D shall prepare a new study in light of the latest technical
developments, and shall submit its required recommendations within one
month.
3-3 Company E shall, in light of the study referred to in clause (3-2), [pre¬
pare] a study regarding the possibility of taking advantage of the materials
and equipment supplied under Claimant contract for the rehabilitation of
the Project and their preparation so that they are ready to operate.
3-4 To notify the Tunisian company (Claimant), through an appropriate
letter, of the decision to consider that the materials it supplied are sufficient,
as a preliminary step toward the termination of the contract and the ami¬
cable and fair settlement of the outstanding matters.
3-5 To continue [illegible] in the Project site.
3-6 To continue the proceedings for the purchase of the product for a
smaller amount.
3-7 To cancel the bid for further work at the Project site and to stop the
procedure of obtaining thé approval of the Council of Ministers/the sec¬
retariat-general for the referral of such bid.’
Respondent submitted additionally an e-mail from an anonymous source

drafted, as Respondent says, by an ‘agent’ who obtained the internal and con¬
fidential document from the State X’s authorities. It explains that this ‘agent’
wants to remain anonymous. It results from this document that the State X
Entity contract was only fulfilled as per shortly after the date of the meeting
above for an amount of US$ 24,400,000 and that US$ 4,000,000 of further equip¬
ment are ‘on the way’. Numbers 5 to 7 of this e-mail correspond to the decision
taken in the meeting of the Ministry of State X.
[54] “Claimant, in a submission, vigorously attacks this submission. It con¬
tests the authenticity of the document and the translation, since the original is
largely unreadable. It says that it did not know the document. It further attacks
the interpretation which Respondent makes from this document as tendacious.
It says that it did not receive the announced letter of termination and of an
amicable settlement and that the envisaged purchase of the product is not for

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! the Project but for another project than the initial object of the State X Entity
contract. Moreover, it concerns a smaller amount of the product.
[55] “The Tribunal is obviously very cautious to accept these documents as
authentic and, if the precise translation would be of relevance, it would order a
neutral translation. But there are enough elements in these documents which are
I logical, uncontested and corroborated by other facts that these documents are
indeed of considerable importance.
[56] “The documents confirm that the State X Entity contract is not executed
any further, since the supplied materials are considered sufficient. Claimant does
not contest this fact. The contract is not terminated yet, but the announced letter
and the envisaged ‘amicable settlement’ are a preliminary step towards the ter¬
mination. Additionally, the Tribunal learns that the contract was only fulfilled
for some US$ 28,400,000. Contrary to what Claimant says, the Tribunal did
know neither this figure, nor the fact that only about 60% of the contract had
been delivered. Partial fulfilment explains at least pardy the various reductions
of the letters of credit.
[57] “Item No. 3-4 of the minutes of the meeting mentioned above announced
an ‘amicable and fair settlement of the outstanding matters’. This seems to
indicate that Claimant will be indemnified from the State X Entity for the
reduction of the scope of the Project. These elements support the Tribunal’s
conviction that it is not sufficiently informed about the negotiations with the
State X Entity and that there was probably either an agreed or - unilaterally -
announced reduction of the contract scope which rendered the supply of the
product redundant - in any case that the non-delivery of the product drew no
sanctions from the State X Entity for non-fulfilment.
[58] “The effects of the disturbances in State X on the contract execution have
not been elucidated. Claimant was asked to submit information about the
impact which they had on the contract execution, but did not comply. The
documents which were submitted lately from Respondent strongly indicate
that the project performance has been modified and that the product was,
after the disturbances, probably no longer needed. In the eyes of the
Tribunal, the logic of the behaviour of the parties, mainly resulting from the
lack of attempt to make a cover purchase and the lack of any contractual sanc¬
tions from the State X Entity, appears to be that, following the disturbances, the
project underwent changes which rendered the initial supply either redundant
or not urgent anyway. If that is so, Claimant’s loss of profit was not caused by
Respondent’s breach, but rather by the disturbances in State X and the mod¬
ifications in the Project decided by the State X Entity.
[59] “There are additional areas of doubt. The documents about settlement
negotiations were submitted by Respondent. Again, Claimant left the Tribunal
uninformed. When Claimant and Respondent tried to negotiate in February of

!

I
the year following the Partial Award on the Merits, the discussion was led in the ?
presence of the director general of the State X Entity. Claimant did not give any
information why this person was there, and why, above all, after the deal with
Respondent failed, no alternative was sought.
[60] “Claimant had the opportunity to enlighten the Tribunal about these
facts. It was even formally requested to do so in the frame of the discovery.
The Tribunal moreover specifically drew Claimant’s attention to the fact that
non-compliance with the instructions in the discovery order would have serious
consequences on the outcome of its claims. Claimant chose not to comply and
thus did not dispel the doubts of the Arbitral Tribunal.
[61] “The doubts of the Tribunal were further nourished by Claimant’s
position with respect to the quantum of the loss. Claimant’s position is to
such an extent ‘simplistic’ that it hurts common commercial sense. It is obvious
that the margin between purchase and sales prices is not equal to profit. The
margin covers fixed costs (overheads, financing, insurance and other items).
Only the difference between all the costs on the one hand, increased as the
case may be by taxes, and the sales price on the other may determine the profit.
Claimant leaves all these additional costs out. It rightly points to the fact that
certain costs have been paid under other Contract items (namely engineering,
erection and supervision), but there remain others (overheads, insurance,
guarantee costs, financing of earlier payments to sub-suppliers than prior to
the payment being received under the letter of credit, etc.) which cannot be
found there. Claimant, in a way which the Tribunal fails to understand, con¬
founds ‘gross margin’ with ‘profit’.
[62] “The members of the Arbitral Tribunal had the impression that there
were many facts which Claimant did not tell and that there must have been
reasons for not telling them. If they were not told, the only conclusion which
can be drawn is that they would have stood in the way of Claimant’s arguments.
[63] “These doubts finally prevailed over the initial preparedness to award
damages after the breach of contract committed by Respondent. Claimant failed
to convince the Tribunal that it effectively suffered a damage and, even if a
damage was suffered, that it was caused by Respondent’s breach and not rather
by other factors.
[64] “The Tribunal has considered whether it should take, as a basis for deter¬
mining the loss of profit, the price which finally failed to be agreed between the
Parties in February of the year after the Partial Award on the Merits, namely
US$ 8,750,000. It has been suggested that the loss of profit would consist in the
difference between the initial price of US$ 7,510,136 and US$ 8,750,000 as
envisaged in February of that year.
[65] “These considerations are largely theoretical, since they cannot overcome
the compelling doubts of the Arbitral Tribunal explained above. On its own

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account, this argument is not fully convincing either since the agreement with
Respondent was not finalised for reasons which remain unexplained and which
are in the exclusive knowledge of Claimant. Many factors may have influenced
this amount (abandonment of claims, increase of prices, the State X Entity’s
presence) so that it cannot be considered as a reliable benchmark.
[66] “The Tribunal has considered whether it is appropriate to grant Claimant
at least a ‘normal’ profit in the range of what Respondent subsidiarily suggested
as being the margin of a trader in the product at issue. It finally decided not to do
so. At first, the difference between a turnkey project and trading in the product
is too important, rendering a simple comparison or analogy inappropriate,
Secondly* there subsist serious doubts whether Claimant has really suffered
any damage in this respect.
[67] “For all those reasons, the majority of the members of the Arbitral
Tribunal came to the conclusion to dismiss this claim.”
b. Loss of bank interest
[68] “Claimant alleges that due to Respondent’s refusal to release the AOP
before the date in which it released it, following the Preliminary Award on
Provisional Measures, goods and services of an amount of US$ 17,425,487
were ready to be shipped or were already on site. As a consequence of the
AOP (‘sic’) and knowing that all payments were blocked, Claimant argues
that it could not start the shipment or claim payment before release of the
AOP. It specifically refers to a paragraph in a telex of the AOP Bank where
it is said: ‘If we receive a complying presentation under the LC for a shipment of
materials, we are not in a position to tell you that we would pay the proceeds to
Claimant and ignore the AOP to SBI.’ Thus, Claimant claims to have lost the
interest that it would have earned if it had cashed the money and invested it for a
period of ‘approximately’ nine months. The claim is calculated at a rate of
2.0767% p.a. on the basis of an ‘attestation’ of a banking corporation for a period
of nine months.
[69] “Respondent raises [five] arguments against this claim, namely (i) that it
was not a party to the AOP; (ii) that the AOP was issued several weeks after the
conclusion of the Contract between Respondent and Claimant; (iii) that it could
not have released the AOP prior to the Tribunal’s decision; (iv) that it is not
established that the said amount of US$ 17,425,487 would have entirely accrued
to Claimant and (v) that only the gross margin to that amount would have
remained with Claimant. Finally, Respondent argues that the time period of
nine months is only qualified as ‘approximately’.
[70] “The Tribunal rejects this claim as well. The thrust of this claim is that
Respondent allegedly, following the avoidance of the Contract, failed to release

the AOP. The Tribunal states at first that neither of its previous decisions has
decided on the merits of this particular claim. The Interim Award on Provisional
Measures was limited to determining the fact and the date of the avoidance,
the Partial Award on the Merits was limited to the imputability of the breach.
The Tribunal will consequently have to decide the merits and eventually the
Quantum of this claim.
[71] “The alleged breach took place after the avoidance of the Contract; prior
to that there was no obligation for Respondent to release the AOP since it still
had an entitlement to it which it could have used if it had decided to fulfil the
contract on its original terms.
[72] “Before deciding whether there was a breach, the Tribunal has to establish
that there was an ongoing obligation to restitute or release the payment security.
The answer to that question has to be found in Art. 81 et seq. CISG. The only
provision which provides for ongoing or subsisting contractual obligations is
Art. 81(1) second sentence, which reads:
‘Avoidance does not affect any provision of the contract for the settlement
of disputes or any other provision of the contract governing the rights
and obligations of the parties consequent upon the avoidance of the
contract.’
The text of Art. 81(1) second sentence CISG is not very helpful since it only
mentions other provisions of the contract consequent upon its avoidance. Taken
literally, this seems to refer only to specific contractual provisions applicable
after its termination (like confidentiality clauses, clauses providing for restitu¬
tion of documents, etc.). Experience shows, however, that contracts rarely con¬
tain explicit provisions with respect to the surviving obligations of termination
or avoidance. This is as well the case in Respondent contract which is altogether
silent on these issues.
[73] “The commentaries to the CISG are not abundant in describing the scope
of surviving contractual obligations. They are even divided as to the essence of
these surviving obligations, between application of rules of undue enrichment
(Neumayer/Ming, Convention de Vienne sur les Contrats de Vente
Internationale de Marchandises, Commentaire, Lausanne 1993, Art. 81 no. 3)
and a reverse set of obligations (Schlechtriem/Hornung, CISG Kommentar, 4th
ed., Munich 2004, Art. 81 CISG no. 10).
[74] “The Tribunal finds that rules of undue enrichment are inadequate to
govern the subsisting obligations after avoidance. The parties’ obligations
may be important and complicated. It is of the opinion that Art. 81(1) second
sentence CISG comprises as well ‘implicit’ contract terms. One of the core
obligations after avoidance, akin to reimbursement of money, appears to be

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the release of payment securities (e.g. bank guaranties (idem Schlechtriem/
Hornung, ibid.)). Thus, the Tribunal is of the opinion that subsequent to avoid¬
ance Respondent had an obligation to release the AOP.
[75] ‘‘The breach of post-avoidance obligations may give rise to damages. Art.
45 CISG applies in this case since it encompasses contract obligations and obli¬
gations under the CISG. The release obligation is one resulting from Art. 81(1)
second sentence CISG. This obligation was breached by Respondent by releas¬
ing the AOP only on the date in which it did.
[76] “A claim for damages for breach of this obligation has to fulfil the con¬
4' ditions of Art. 74 CISG, namely the accrual and proof of a loss and the causality
- between the breach and the loss. Claimant has once again failed to establish that
it suffered a loss.
’i.
[77] “Claimant relies on a number of documents. The documents are not
further explained by Claimant. They comprise four bills of lading and eight
invoices from Claimant to the State X Entity. All documents contain a reference
to the LC No. 0731683. The addition of the invoices arrives at the amount
alleged by Claimant of US$ 17,525,487.85. The submitted documents are no
proof at all. Claimant ought to have established that the AOP effectively
blocked payment from the State X Entity for a specified period and that it
suffered a loss of interest from this fact.
[78] “Claimant has submitted a telex from the AOP Bank from which it
deduces that any payment request, as long as the AOP was valid, might have
lead to payment to the SBI/Respondent. The text of this telex does, however, not
necessarily support this conclusion. The Arbitral Tribunal has understood the
payment mechanism as it set forth above; this understanding was already stated
in the Interim Award on Provisional Measures and has not been contested by
Claimant. This means that payment to SBI would only be made if the documents
submitted by Claimant did ‘comply’ to the AOP in favour of State Bank of
India. The Tribunal has expressed the opinion that the AOP requires the same
documents as the letter of credit; these documents are listed in the AOP Bank’s
telex. These documents contain under No. 5 ‘indication of the country of ori¬
gin’. Consequently, a supply from outside of India would not ‘comply’ with the
AOP. In addition to this more technical argument, the Tribunal is doubtful
whether this sentence alone bears out the position which Claimant adopts. A
specified letter of Claimant which would have revealed the precise question
which Claimant asked is not on record.
[79] “If Claimant’s position were right, it would mean that all payments from
the State X Entity, for the entire existence of the AOP in favour of SBI were
blocked, and that the AOP would have rendered unavailable any other payment
under the entire letter of credit. This is hard to believe in the absence of any
correspondence between Claimant and the State X Entity in this respect and,
Reprinted from the Yearbook CommerciSf Arbitration 455

moreover, in the absence of any correspondence between Claimant and its sup¬
pliers informing the suppliers that no payment can be made.
[80] “Finally, as results from the claim filed by [another supplier, ABC], the
Tribunal learnt that there were other AOPs in favour of other suppliers. There
must have been a mechanism which the Tribunal is unaware of to clearly dis¬
tinguish which amounts had to be paid to the respective AOP beneficiaries.
Even if there remained some doubts in the mind of the Arbitrators, there are
other compelling reasons for dismissing this claim.
[81] “There is no invoice submitted from any supplier. There is no correspon¬
dence between Claimant and the suppliers. If Claimant’s position were right, the
suppliers would have delivered but remained unpaid until the date on which
Respondent released the AOP. They must have insisted on being paid and
requested at least a loss of interest. Additionally, Claimant did not answer
Respondent’s argument that, if at all, it would only have suffered a loss on its
margin, but not on the entire amount. This argument is striking; it is plain
common sense. Finally, the duration of approximately nine months has not
been explained. If one takes as starting the latest date of the submitted bills of
lading, there are only seven months until the date on which the AOP was
released (by neglecting the time between delivery, submission of documents
and effective payment which have to be added at the suppliers’ and at
Claimant’s end).
[82] “For all these reasons, this claim has to be dismissed.”
c. Loss due to fluctuation of exchange rate
[83] “Claimant argues that it purchased equipment from supplier ABC for an
amount of €4,650,000. The goods were ready for shipment on date Y. Due to
the fact that the AOP was still blocked at that time, payment to ABC could not
be made. ABC finally presented the payment documents to the bank on date Z
after the cancellation of the AOP. Since the contract with ABC was concluded in
Euro and since the Euro increased against the US dollar, the currency in which
the LC is issued, Claimant alleges to have incurred a loss. ... Claimant claims an
amount of US$ 483,082 being the difference between the higher and the lower
exchange rate, multiplied by the price of the ABC contract.
[84] “Respondent objects against this claim several grounds. It argues that this
claim initially amounted to US$ 651,000. It was not stated in Claimant’s first
Memorial on Quantum. Since this was the first submission after bifurcation, the
claim is ‘undoubtedly waived’. Respondent further argues that Claimant’s claim
is a risk which it bears alone. It was Claimant’s decision to purchase on the basis
of Euros although the contract with the State X Entity was in US dollars. It
should have hedged this risk as it is usual in such a situation.

r
v CASE NO. 13133, 2007 ARBITRAL AWARDS
!i;
; [85] "The Tribunal holds as follows: The claim is not waived. Respondent
did not specify on which provision, legal basis or case law it relies. The
?ÿ Tribunal has examined whether a waiyer might result from the ICC Rules or
from French law.
Art. 33 of the ICC Rules does not apply since there is no failure to comply
with any provision of the Rules or any other situation to which Art. 33 applies.
Since the claim initially raised is stated in the Terms of Reference, the fact that it
was not stated in Claimant’s first Memorial on Quantum has to be considered as
i
an omission only. If the Tribunal would consider the argument of a waiver under
the substantive law of France, a waiver requires a specific declaration of renun¬
ciation (Cass, civ., Second Chamber, 10 March 2005, Bull. civ. Ill, no. 68) which
is not the case here either.
[86] “The Tribunal has determined its position on the basis of specified docu¬
ments submitted by Claimant. The documents submitted by Claimant fail to
justify the claim. They are altogether inconclusive. They fail to establish that
payment was due and claimed on date Y, that payment was not made, and it
finally could only be made on date Z. The first document is the contract with
ABC. It stipulates that payment is made from an AOP just as the payment to
Respondent. This is puzzling since the Tribunal has difficulties to understand
that this payment guarantee could have been disturbed by the separate AOP in
favour of SBI (see above). Appendix 1 to the contract which lays down the
wording of the assignment of proceeds is not submitted. The second document
is an inspection certificate but not, as contended by Claimant, a payment request
(invoice). The third document does not support that allegation either. It has been
dealt with above [at [77]] and the Tribunal has expressed its views on it.
[87] “The fourth document is as well inconclusive. It bears no reference nor
indication that it has anything to do with the ABC contract. It refers to a
different contract number than the ABC contract; its context is unexplained.
It is a Claimant document and not one from ABC. The difference of contract
numbers is puzzling and remained unexplained. There is no evidence that the
payment was made on that date.
[88] “All these reasons are more than sufficient to justify the Tribunal’s
decision, to reject this claim as well.”
d. General overhead costs
[89] “Claimant argues in this respect that, due to Respondent’s breach of

contract,Claimant had to pay personnel, experts, travel and hotel costs to
manage this arbitration and negotiate with new suppliers. Before the Hearing,
Claimant ‘estimated’ the additional costs at US$ 400,000 and increased this
amount to US$ 420,000 during the Hearing. Respondent considers this claim

as frivolous, in particular due to the fact that it is not supported by any

documentation.
[90] “The Tribunal notices in fact that Claimant fails to submit any
documentary evidence at all. The Tribunal rejects this claim as well.
[91] ‘“General overheads’ as a consequence of a breach of contract may very
well be claimed under Art. 74 CISG. They may be caused by a breach of contract
and are a foreseeable consequence of such a breach. It is, however, doubtful
whether the salaries of employees and executives who have to deal with the
litigation are the consequence of a specific case or matter. It may be argued
that their origin is the employment contract with the specific employee and
that the costs arise irrespective of a specific procedure. It would flow from
that that these costs would have arisen anyway, thus excluding a causal link
between the breach and the payment of salaries. The Tribunal does, however,
not have to decide this issue, since the claim has to be rejected for lack of proof.
Claimant has just submitted an estimate and did not support its claim by any
evidence at all.
[92] “The Arbitral Tribunal has no basis to examine any amounts claimed and
has to reject this claim as well for lack of proof. The Tribunal has no other choice
but to reject this claim as well.”
e. Aggravated damages
[93] “Claimant claims under this heads of claims US$ 400,000. It supports this
claim with the argument that the refusal to release the AOP ‘held Claimant
prisoner of Respondent’, and was used by Respondent as a tool to make
Claimant accept commercial concessions or the withdrawal of the arbitration.
It complains about an ‘ultimatum’. Claimant further relies on a sentence in the
Preliminary Award where the Tribunal expressed the opinion that the release of
the AOP was necessary to prevent a ‘considerable increase of damages’. In its
earlier submission, Claimant had called this claim ‘moral’ damages and alleged
that it suffered a loss of reputation and standing, in particular in the eyes of the
State X Entity. During the Hearing, it was debated whether the CISG indeed
just not mentions compensation of moral damages or whether they are specif¬
ically excluded.
[94] “After due consideration, the claim has to be dismissed. The Tribunal
makes a distinction between a financial loss caused by a loss of reputation,
business opportunities or the like and moral damages. The Tribunal is of the
opinion that under CISG a financial loss caused by a loss of reputation, business
opportunities or the like, is compensable. Under this aspect, the initial founda¬
tion of the claim was in line with the CISG. However, even at that time Claimant
failed to submit any evidence that it encountered difficulties with the State X

■-*75*7 .JijSjSZSaSZS-
I
I
C
Entity or other business partners due to the failure of Respondent.
Consequently, even though such loss may be claimed, there is no evidence in
the present case that there was indeed a loss. In the eyes of the Tribunal, the loss
is purely theoretical and cannot be compensated for.
[95] “When considering the claim under the aspect of the refusal to release the
AOP, which is different from the previous one, the result is the same. As already
set out above with respect to the claim under b, the Tribunal disposes of no
evidence that the refusal to release the AOP has effectively caused a loss to
Claimant. It may well have caused one, but due to the total lack of evidence,
the Tribunal cannot identify such a loss. Consequently, the Tribunal has to
decide that a loss has not been proven; if there had been one, Claimant would
have found means to put it under proof.
[96] “This does as well away with the argument that the Interim Award was
•• rendered to avoid an increase of damages. At that time, Claimant had already
claimed damages but had not yet proven them. At that time, such proof was not
yet required. The Tribunal expected though that due to Respondent’s refusal to
deliver, Claimant would suffer a damage and that Claimant would be able to
prove it. This is, however, not the case today.
[97] “Due to the fact that Claimant did not submit any evidence with respect
to this item and since no damages are proven, the Tribunal is not compelled to
decide whether the CISG may allow a claim for pure ‘moral damages’.”
f Interest
[98] “Due to the fact that all claims fail, there is no need to discuss this heads of
claim.”
g. Costs of the arbitration and legal costs
[99] “Following claims of initially more than US$ 16,892,000 and a subsequent
reduction to somewhat more than US$ 12,000,000, which was valid until the Oral
Hearing, the amount at stake is at present slightly more than US$ 6,000,000.
[100] “Claimant requests that Respondent bears entirely the costs of the arbi¬
tration and its ancillary legal costs. Respondent initially claimed that Claimant
bears entirely the costs of the second phase of the arbitration, but accepted to
bear its share for the first stage. At the Hearing, Respondent requested however
that Claimant bears the entire costs of the arbitration and the entirety of the
ancillary legal costs. It argues that Claimant knew from the beginning that it had
not suffered any damages and that its contract with the State X Entity would not
be performed due to the situation in State X. It made Respondent go through a
useless and wasteful arbitration.

■
[101] “The Tribunal’s decision with respect to legal costs is based on the
application of Art. 31(3) of the ICC Rules. This arbitration is peculiar in so
far as it is split into two totally different phases. Claimant won the first phase
and fully loses the second. It is true, on the one hand, that Claimant finally fails
in all its claims, and that it withdrew an important part of it at the very last
moment. On the other hand, the origin of the arbitration was set by Respondent.
It was Respondent’s breach of Contract which caused the arbitration.
Respondent refused to release the AOP and failed as well entirely with its
counterclaim. For these reasons, the Tribunal will not allocate the costs of
the arbitration by taking only into account who wins in the end, but as well
by looking at the origin of the dispute.
[102] “Consequently, the Tribunal decides that both Parties shall pay half of
the arbitration costs (i.e., fees and expenses of the Arbitral Tribunal and ICC
administrative costs fixed by the Court at US$ 400,000). Since both have con¬
tributed with identical amounts to the advance on costs, each Party has to bear
the amount which it has already paid, i.e. US$ 200,000.
[103] “With respect to the legal costs, the Tribunal finds as well that it is
appropriate to make a similar distinction. Even though Claimant did finally
not succeed in obtaining damages, the arbitration was nevertheless caused by
Respondent’s breach of contract. This leads the Tribunal to decide that each
Party has to bear its own legal costs and cannot claim reimbursement of them
from the other Party.”
V. AWARD
[104] "Based on the preceding developments, considerations and findings, the

Tribunal decides:
(1) The Tribunal rejects Claimant’s claims in their entirety for lack of proof.
(2) Each Party has to bear half of the arbitration costs fixed by the Court at
US$ 400,000 and bears the entirety of its own respective legal costs.”

P:
K
* Final award in case no. 13507 of 2007
Parties: Claimant: Company X (Spain)

Respondents: (1) Company Y (Switzerland);
(2) Company Z, in liquidation (Switzerland)
Place of
arbitration: Barcelona, Spain
.c:.
Subject matters: - res judicata effect of withdrawal of claim (no)

- allocation of costs and legal costs
Summary
Applying a Spanish law provision on withdrawal of claims in court actions —

in the silence of the ICC Rules and Spanish Arbitration Law - the Sole
Arbitrator held that when the claimant withdraws its claim and the
respondent does not oppose this withdrawal, the arbitrator’s decision termi¬
nating the arbitration has no res judicata effect.
Spanish Company A and Company B entered into a contract under which

Company B undertook to erect a plant in Spain (the Plant) and to supply the
know-how, license, engineering and equipment relating thereto (the Contract).
The Contract contained a clause providing that, if a good faith attempt to nego¬
tiate a settlement failed, the parties could agree to refer the dispute to mediation.
If the parties did not reach an agreement for mediation or mediation failed, the
dispute would be referred to ICC arbitration in Barcelona.
The parties subsequently entered into an Amendment to the Contract, pur¬
suant to which Spanish Company A transferred all its contractual rights and
obligations under the Contract to Spanish Company X (Claimant) and
Company B transferred all its rights and obligations under the Contract to
Swiss Company Y (First Respondent). Five months later, First Respondent
informed Claimant, by an Assignment Letter, that Swiss Company Z (Second
Respondent) was taking over First Respondent’s work on the Plant and that the
Contract had been transferred from First Respondent to Second Respondent.
A dispute arose between the parties. Claimant commenced ICC arbitration
against First Respondent and Second Respondent (collectively, Respondents),

alleging losses and seeking damages. A Sole Arbitrator was appointed. Initial
differences between Claimant and First Respondent as to the language of the
arbitration were settled by Procedural Order no. 1, by which the Sole
Arbitrator ruled that the language of the arbitration was English. Shortly
thereafter, a liquidator appeared on behalf of Second Respondent, indicating
that Second Respondent had become bankrupt and asking that the arbitration
proceeding be stayed. By Procedural Order No. 2, the Sole Arbitrator denied
this request.
Claimant and First Respondent signed Terms of Reference; Second
Respondent refused to sign. The Sole Arbitrator then issued Procedural
Order No. 3, by which he (i) finally rejected the Respondents’ application to
stay the arbitration; (ii) denied the Respondents’ objection to his jurisdiction
because of the bankruptcy proceedings pending in Switzerland in respect of
Second Respondent and because the condition precedent (amicable settlement
and mediation) in the Contract had not been complied with. He further
(iii) dismissed the Respondents’ request for bifurcation of the proceedings
and (iv) requested additional briefing from the parties prior to deciding on (a)
First Respondent’s jurisdictional objection seeking the determination of certain
technical matters by an expert before resorting to arbitration and (b) Claimant’s
application for an order to attach Respondents’ third-party credits in Spain.
By Procedural Order No. 4, the Sole Arbitrator rejected First Respondent’s
jurisdictional objection and denied the attachment order sought by Claimant,
finding that he lacked jurisdiction, without prejudice to Claimant’s right to seek
and obtain such order from a court of law.
Subsequently, in view of the reservations expressed by First Respondent
regarding the confidentiality of information and documentation to be supplied
as evidence in the arbitration and the failure of the parties to reach an agreement
in this respect, the Sole Arbitrator circulated among the parties a draft confi¬
dentiality agreement; the draft was later incorporated into a Protective
Confidentiality Order. The Sole Arbitrator then issued various Procedural
Orders dealing with document production issues and evidentiary matters.
First Respondent also experienced financial difficulties and its shareholders
eventually filed for liquidation in Switzerland. Claimant then applied for
interim measures premised on these liquidation proceedings; subsidiarily, it
applied for a declaration that First Respondent was in default and asked the
Sole Arbitrator to proceed to “immediately issue and award on the merits for
Claimant”. The Sole Arbitrator rejected Claimant’s application by Procedural
Order no. 8.
The above proceedings lasted approximately two years.
Two days after issuance of Procedural Order no. 8, the Sole Arbitrator
received a letter by e-mail from Claimant (the Claimant Letter), in which

li
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I
Claimant expressed its intention to withdraw from the arbitration. At the request
of the Sole Arbitrator, First Respondent replied by a First Respondent Letter, to
which Claimant reacted by e-mail (the Claimant E-Mail). The parties further
exchanged First Respondent Second Letter, Claimant Second Letter, First
Respondent Third and Fourth Letters and Second Respondent First and
Second Letters.
First Respondent did not oppose the withdrawal of Claimant’s claims; it
asked, however, that it be deemed a withdrawal with prejudice, that is, entitling
Respondents to a final award with res judicata effect and an order that Claimant
bear all arbitration and legal costs. Claimant contested this argument in its
Claimant Second Letter, arguing that it withdrew from the proceeding because
it believed that it would not be able to recover its losses and damages, and that an
award was not appropriate at this stage as nothing had yet been proved and
concluded in the arbitration.
By the present award, the Sole Arbitrator held that Claimant's withdrawal
had no res judicata effect.
The Sole Arbitrator first reasoned that Claimant’s withdrawal was uncon¬
ditional. Under Art. 38(2)(a) of the Spanish Arbitration Act - which provides
that the arbitrators shall issue an order for the termination of the arbitral
proceedings when the claimant withdraws his claim, unless the respondent
objects thereto and the arbitrators recognize the respondent’s legitimate
interest in obtaining a final settlement of the dispute - only the respondent
has the right, once the withdrawal is announced, to seek the continuation of the
arbitration. In the present case, First Respondent did not oppose the with¬
drawal of Claimant’s claims and the termination of the arbitration, merely
expressing its disagreement in respect of the legal effects of this withdrawal
and termination.
Claimant only sought to condition its withdrawal on the legal effects of the
ensuing award, and the allocation of costs, by its Claimant Second Letter. By
that time, however, its withdrawal had become final, absent an opposition by
Respondents. The Sole Arbitrator held that allowing Claimant to modify its
unilateral and unconditional withdrawal would both be contrary to Art.
38(2)(a) of the Spanish Arbitration Act and infringe the principles of good
faith and fairness of proceedings.
The Sole Arbitrator then noted that neither the ICC Rules nor the Spanish
Arbitration Act deal with the (res judicata) effect of a withdrawal. He found
guidance in the Spanish Code of Civil Procedure, which provides in respect of
the withdrawal of court actions that a withdrawal with the respondent’s consent
or without its opposition terminates the proceedings without res judicata effect.
This provision covered the case at issue, since Respondents did not oppose the
withdrawal.

The Sole Arbitrator determined the issue of the costs of arbitration and legal
costs under the ICC Rules rather than the Spanish Code of Civil Procedure, on
which Claimant relied, noting that the Rules expressly regulate the arbitrator’s
power to determine costs. Other than in respect of the issue whether a with¬
drawal has res judicata effect, there is no “gap” in this respect in the Rules.
Under the broad discretion granted to him by the Rules, the Sole Arbitrator
then determined that the costs of the arbitration be borne entirely by Claimant,
which unilaterally took the initiative both of commencing the arbitration and
withdrawing its claims. Though Claimant alleged that its withdrawal was
prompted by the liquidation of First Respondent, there was no evidence that
such liquidation necessarily frustrated Claimant’s rights.
The Sole Arbitrator viewed the issue of legal costs differently. He reasoned
that Claimant succeeded in overcoming numerous unsuccessful applications by
both Respondents to obtain a stay of the arbitration and challenge the jurisdic¬
tion of the Sole Arbitrator. Such applications substantially slowed down the
pace of the proceedings, which might possibly have ended otherwise by a
final award on the merits before or shortly after the liquidation of First
Respondent. Under such circumstances, the Sole Arbitrator ordered each
party to bear its own legal costs.
Excerpt
[1] “In the Claimant Letter, Claimant wrote the following:
‘After having received the Arbitrator Procedural Order No. 8 ([emphasis] in

original Arbitrator’s Note) this party has no other option than to present
the renunciation to continue the action against First Respondent in Liqui¬
dation and Second Respondent in Bankruptcy on the ICC Ref. 13507.
According to Appendix III of the ICC Rules An. 2.6 please proceed in
the notification of the costs and expenses to be covered by each party,
including Arbitrator fees.’
Such renunciation was clearly unconditional and meant to put an end to the
proceedings by the unilateral withdrawal of Claimant’s claims and final settle¬
ment of arbitral and general legal costs and fees by the Sole Arbitrator.
[2] “The First Respondent Letter did not reject or oppose such withdrawal,
but characterized it as a renunciation and withdrawal of Claimant’s claims with
prejudice; i.e., as entitling the Respondents to a final award with res judicata
effects, with Claimant’s obligation to bear all arbitral and general legal costs
and fees.

I

[3] “First Respondent’s position regarding the legal effects of the withdrawal
of Claimant’s claims was not accepted by the Claimant. In the Claimant E-Mail
Claimant stated as follows:
‘Entering into the analysis of First Respondent’s writ, the renounce to

the party to continue with this procedure, clearly, is to continue with
this arbitration procedure ([emphasis] in the original) and not to other
kind of actions, particularly criminal actions ([emphasis] in the original)
[aimed] to evidence the criminal liabilities of the corporate bodies that
control First Respondent. In this sense this party also does not want to
renounce to civil actions derived from the breach of the Contract signed
with my client. . . . The reason why this party does not continue with
the arbitration procedure is no other that the fact evidence that we will
never be able to execute our legitimate right to be paid by the losses
í
and damages caused and these because we can do nothing against the
illegal measures adopted by First Respondent out of this arbitration
procedure.’
Further, Claimant added:
‘It is clear that this procedure cannot end with an award at this stage,
because nothing has been proved and concluded until today. . . . Con¬
cluding, again and not having many hopes to be success, we ask that
none of the considerations of First Respondent can be accepted, deter¬
mining the costs that this gullible party, in the minimum possible due to
the circumstances occurred and of course not declaring Mr. Arbitrator
“res judicata” this matter, that it has to be said, will not end the contin¬
uation at this stage.’
[4] “The above paragraphs show that Claimant was then insisting on the
unilateral withdrawal of its claims and termination of the arbitration, although
denying that such termination may have res judicata effects or impose the
arbitral and legal costs and fees on Claimant despite the fact that the text of
Claimant E-mail cited above suggests that Claimant expects bearing at least
part of such costs and fees. Nothing indicates that Claimant subordinated the
termination of the arbitral proceedings it had unilaterally initiated to the
acceptance by its counterparts that such termination would not have res judi¬
cata effects.
[5] “ On the other hand, the disagreement of First Respondent with Claimant’s
position did not rest on the withdrawal of Claimant’s claim or on the ensuing
termination of the arbitral proceedings, but on their legal effects. This already
Reprinted from the Yearbook Commercial "Arb itrat io n 465

appeared from the First Respondent First Letter and became even more appar¬
ent from the First Respondent Second Letter, where it is stated that:
‘The withdrawal of a claim has per se a material res judicata effect (without
further proceedings and without a judgment on the merits by the Tribunal).
The res judicata is limited, however, to the scope of claims and relief sought
by Claimant according to the Terms of Reference.’
[6] “On the basis of their pleadings referred to above, the Sole Arbitrator
requested the Parties to frame their respective positions in terms of Art.
38(2)(a) of the Spanish Arbitration Act, that recites as follows:
‘The arbitrators shall also order the termination of the proceedings

where:
(a) the claimant withdraws his claim, unless the respondent objects there¬
to and the arbitrators recognize the respondent’s legitimate interest in
obtaining a final settlement of the dispute.’1
[7] “Clearly, such provision only applies in case of the unilateral withdrawal
from the arbitral proceedings by a claimant. Such scenario - the one presented
by Claimant when communicating its withdrawal of the action - was the only
one possibly being considered by the Sole Arbitrator when requesting the
Parties to formulate their arguments regarding the termination of this arbitra¬
tion under Art. 38(2)(a) of the Spanish Arbitration Act. This was understood by
First Respondent when, pursuant to such Article, it expressed in the First
Respondent Third Letter that it did not object to the withdrawal of
Claimant’s claims and requested the termination of this arbitration.
[8] “The Claimant Second Letter does not attempt to address Art. 38(2)(a) of
the Spanish Arbitration Act, nor denies its application, but argues that:
‘. . .
under Spanish Civil Code, the renounce to continue with the arbitra¬
tion procedure - as it is the same in any contract or bilateral obligation - has
to be accepted or rejected by the parties and therefore has to be a consensual
measure’.
1. “The Spanish text recites as follows:

'Los árbitros también ordenarán la terminación de las actuaciones cuando: (a) El demandante
desista de su demanda, a menos que el demandado se oponga a ello y los árbitros le reconozcan un
interés legftimo en obtener una solución definitiva del litigio.’”

—jzzíz-
--
?ÿ
\ :
:
On such basis, Claimant further argues that:
‘In our particular case, as far as we understand, First Respondent has

answered not accepting this proposal ([emphasis] in the original) but insist¬
ing in the fact that we should be condemned to pay all the costs and
expenses, including fees, costs and expenses incurred by First Respondent
and also to consider that our rights has to be considered “res judicata”.1
[9] “Art. 38(2)(a) of the Spanish Arbitration Act does not subject the effec¬
tiveness of a withdrawal to the agreement of the respondent so that so long as
the respondent shall not have accepted the withdrawal it may be retracted by the
withdrawing party. Under this provision, once the withdrawal is made, only the
non-withdrawing party has the right to request the continuation of the proceed¬
ings. As shown above, First Respondent did not reject or oppose the withdrawal
of Claimant’s claims and the accompanying termination of these arbitral pro¬
ceedings, but only limited itself to expressing its disagreement on the legal effects
purportedly and unilaterally assigned by Claimant to such withdrawal and ter¬
mination. Neither First Respondent nor Second Respondent required the con¬
tinuation of these proceedings after receiving the withdrawal of Claimant’s
claims.
[10] “Before the Claimant Second Letter, Claimant did not condition its with¬
drawal on the legal effects or the arbitral fee and cost allocation to ensue there¬
from. By then, the absence of opposition to such withdrawal - expressed in the
First Respondent First and Second Letter, confirmed by the First Respondent
Third Letter addressing the application of Art. 38(2)(a) of the Spanish
Arbitration Act in compliance with the Sole Arbitrator’s request, and evidenced
by the silence of Second Respondent - had rendered the withdrawal of
Claimant’s claims firm and final in accordance with such provision. Thus,
such withdrawal was irrevocably consummated with full legal effects before
the Claimant Second Letter.
[11] “In view of such circumstances, allowing Claimant to change its position
by modifying its originally unilateral and unconditional withdrawal of its claims
would be both contrary to Art. 38(2)(a) of the Spanish Arbitration Act and
infringe the principle of good faith consecrated by Art. 7(1) of the Spanish
Civil Code, as well as fairness principles embodied in Art. 15(2) of the ICC Rules.
[12] “It now remains for the Sole Arbitrator to determine the legal effects to be
attributed to the withdrawal of Claimant’s claims in view of the disagreement of
Claimant and First Respondent on such effects.
[13] “The ICC Rules do not address the question of whether the express
unilateral withdrawal of claims by the claimant has res judicata effects or not.
A withdrawal of claims resulting from the application of Art. 30(4) of the ICC
■
Rules for lack of payment of the advance on arbitral costs is without prejudice,
but such withdrawal may only occur after the ICC Court Secretary General has
proceeded as provided for in such Article, which has not happened so far in this
case. The Spanish Arbitration Act does not address this question either.
[14] "Only Art. 20(3) of the Spanish Ley de Enjuiciamiento Civil (Code of
Civil Procedure) regarding the withdrawal of court actions provides guidance to
settle this issue. This provision recites as follows:
'Emplazado el demandado, del escrito de desistimiento se le dará un traslado

por un período de diez días. Si el demandado prestare su conformidad al
desistimiento o no se opusiere a él dentro del plazo expresado en el párrafo
anterior, el tribunal dictará auto de sobreseimiento y el actor podrá pro¬
mover nuevo juicio sobre el mismo objeto. Si el demandado se opusiera al
desistimiento, el juez resolverá lo que estime oportuno.'
My free, of course unofficial, translation into English of this provision is as

follows:
‘The withdrawal petition shall be answered within ten days after served on
the respondent. If the respondent agrees with or does not oppose the with¬
drawal within such time-limit, the tribunal will decree the termination of
the proceedings and the claimant may initiate new proceedings on the same
subject-matter. If the respondent objects to the withdrawal, the court will
decide as it finds appropriate.’
[15] "Clearly, this provision indicates that a withdrawal of a claim with the
respondent’s consent or without its opposition terminates the proceedings to
which the withdrawal relates without res judicata effects. It has been found
above that First Respondent has not opposed the withdrawal of Claimant’s
claims in terms of Art. 38(2)(a) of the Spanish Arbitration Act and has, indeed,
acquiesced such withdrawal. Second Respondent did expressly refuse to pro¬
nounce itself Or comment on the withdrawal of Claimant’s claims, as stated by
Second Respondent in its Second Respondent First Letter and, for that reason,
has not advanced any opposition or objection to such withdrawal.
[16] “Such being the case, having in mind the letter and spirit of Art. 20(3) of
the Spanish Ley de Enjuiciamiento Civil and the powers vested in arbitral tri¬
bunals by Art. 15(1) of the ICC Rules, the Sole Arbitrator finds that the with¬
drawal of Claimant’s claims is without prejudice and deprived of res judicata
effects.
[17] “Regarding the issue of arbitral costs and fees fixed by the ICC Court, the
Sole Arbitrator is well aware of the fact that Claimant has invoked Art. 396 of

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the Ley de Enjuiciamiento Civil. According to this provision, if the withdrawal

of the claim has been acquiesced by the respondent, none of the parties has to
support the costs of the other. However, the Sole Arbitrator does not consider
that the matter of costs is not covered by the ICC Rules or by general
international arbitration practice, that unequivocally vest the arbitrators with
broad powers and flexibility to decide on cost allocation issues. In particular,
Art. 31(2) and (3) of the ICC Rules entitle the Sole Arbitrator to decide on
arbitral and general legal costs allocation without subjecting him to any rigid
or predetermined rules, of national or of any other source, commanding any
specific cost allocation in the case of withdrawal of arbitral claims. Unlike the
issue of whether a withdrawal of claims has or not res judicata effects, there is no
gap in the ICC Rules regarding cost and fee allocation by ICC arbitrators. Thus,
the Sole Arbitrator shall not take into account or apply Art. 396 of the Ley de
Enjuiciamiento Civil when elaborating and reaching conclusions as to cost and
fee allocation in the instant case.
[18] “Pursuant to such powers vested in him, the Sole Arbitrator considers
that it is fair to decide that the arbitral costs fixed by the ICC Court shall be
borne in their entirety by Claimant, which unilaterally took the initiative both of
commencing these arbitral proceedings and withdrawing its claims after almost
two years in arbitration. The Sole Arbitrator has taken into account for reaching
such conclusion that, although Claimant alleges that the withdrawal of its claims
was prompted by the liquidation of First Respondent, there is no evidence that
such liquidation necessarily frustrated Claimant’s rights within or without arbi¬
tration. That such liquidation could not have the radical effect of jeopardizing
Claimant’s ability to further pursue its claims in this arbitration or by commenc¬
ing future court or arbitral proceedings is confirmed by Claimant’s own erratic
conduct, initially seeking the termination of these arbitral proceedings without
prejudice in order to pursue its claims elsewhere, including, possibly, in a new
arbitration, and later the continuation of these arbitral proceedings despite First
Respondent’s ongoing liquidation.
[19] “However, the issue of general legal costs, fees and expenses should be
viewed differently and in light of other fairness considerations. Claimant has
succeeded in overcoming numerous and repeated applications by both
Respondents to obtain a stay of these arbitral proceedings and to challenge
the jurisdiction of the Sole Arbitrator to hear this case. Such applications -
proven without merit - substantially slowed down the pace of these arbitral
proceedings and unnecessarily delayed, among other things, the completion of
the Terms of Reference and the general organization of this arbitration, includ¬
ing the timing for the submission of memorials, production of evidence and
scheduling of a hearing on the merits. It is not to be excluded that had such
disruptions not taken place, these arbitral proceedings would have ended by a
t.
469
I Reprinted from the Yearbook Commercial Arbitration
final award on the merits before or shortly after the initiation of the liquidation
of First Respondent. Under such circumstances, the Sole Arbitrator concludes
that each Party shall support its own general legal costs, fees and expenses.
[20] “In view of the foregoing findings and considerations, the Sole Arbitrator
decides and declares as follows:
(1) Claimant’s claims are withdrawn, and the present arbitration proceedings
are accordingly terminated, without prejudice;
(2) Claimant shall bear, in their entirety, the arbitral costs and fees, fixed by the
ICC Court in the sum of ... ; and
(3) Each Party shall bear its own general legal costs, fees and expenses.”

• .7
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Parties: Claimant: Buyer (Bahamas)

Respondent: Seller (Thailand)
Place of
arbitration: Singapore
Subject matters: - United Nations Convention on Contracts for the

- substitute purchase must be made in reasonable
manner
— freight costs not included in computation of damages
- interest runs from date of non-performance
Summary
The arbitral tribunal examined the issue of substitute purchases caused by a

seller's non-delivery under both Swiss domestic law and the CISG, as the
relevant contractual provision was ambiguous and the parties' experts
agreed that there were no substantial differences in this respect between
the two regimes. Substitute purchases must be made in good faith (Swiss
law) or in a reasonable manner ( CISG). Under Swiss law, in application of
the principle of mitigation of losses, the good faith requirement means that
substitute purchases must be made in a reasonable manner: at a reasonable
price in line with the market conditions, within a reasonable time and at a
reasonable place given the type of goods at stake. Under the CISG,
substitute purchases must be made in a reasonable manner and within a
reasonable time after avoidance. A buyer making a substitute purchase need
only act reasonably in the circumstances and is not obliged to carry out
extensive investigations as to how the substitute goods can be purchased
on the most advantageous terms. On the evidence, the tribunal found
that the substitute purchases here had been made in a reasonable manner.
i There could be no set-off of the damages owed by the seller against
alleged freight savings made by the buyer, because Swiss law requires
S:: that the party arguing set-off must have a head of claim that can be used
against the opposing claim. This was not the case here. Also, under Swiss law,
Reprinted from the Yearbook Commercial Arbitra.tit 471

an injured party cannot claim from a defaulting party profits the latter has
earned from its breach; similarly, the defaulting party here ( the seller) could
not claim alleged profits made by the injured party ( the buyer) as a conse¬
quence of the seller's breach of contract. Freight costs are not included in the
computation of damages under the CISG.
The Bahamian buyer (Claimant) and the Thai seller (Respondent) entered into
three agreements (the Contracts) under which Respondent agreed to sell and
deliver - and Claimant agreed to purchase - a quantity of a certain product over
three consecutive years, Year A, Year B and Year C. The terms of each Contract
were identical but for the price of the product: US$ X per metric tonne for Year
A, US$ X+0.50 for Year B and US$ X+l for Year C. Payment was by Letter of
Credit to be opened by Claimant at the latest seven days before arrival of the
vessel at the loading port. The Contracts also provided for certain destinations to
which the product was to be delivered and regulated laycan, demurrage and
despatch money. The Contracts further contained the following clause:
“The parties hereby agree that Swiss internal law shall be applicable to this
Contract. In case [ . . . ] any dispute, difference or question shall at any time
hereafter arise between the parties in respect of or in connection with this
Contract, the parties shall use their best efforts to settle such disputes ami¬
cably, but in the event that such resolution is not possible, or disputes
arising in connection with present contract shall be finally settled under
the rules of Conciliation and Arbitration of the International Chamber of
Commerce. Place of Arbitration shall be in Singapore and the language shall
be in English. Insofar as applicable and to the extent, in which they do not
contravene with the terms hereof INCOTERMS 1990 shall apply.”
A dispute arose between the parties when, after some initial shipments,
Respondent declined to make the shipments requested by Claimant under the
Year A Contract; it made no shipments at all in Year B and Year C. Claimant
made substitute purchases and commenced ICC arbitration against Respondent,
seeking damages. Respondent argued in reply that it did meet its obligations
under the Contracts until 11 April of Year A, when the parties allegedly entered
into an Oral Agreement which provided that Claimant would from then on
provide Respondent with a Letter of Credit for each shipment a few weeks in
advance of the scheduled arrival of the nominated vessel (Respondent later
argued that it was agreed that Claimant would provide a Letter of Credit one
to two weeks in advance of the first day of laycan). As Claimant failed to provide
Letters of Credit timely as agreed in the Oral Agreement, Respondent deemed
that Claimant had terminated or cancelled the remainder of the Contract for

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! CASE NO. 13676, 2007 ARBITRAL AWARDS
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; Year A and the Contracts for Year B and Year C and made no further deliveries.
Respondent also filed a counterclaim for despatch money in respect of the
deliveries made.
The arbitral tribunal held that no Oral Agreement had been concluded to vary
the terms of the Contracts and that Respondent was in breach of contract. It also
granted Respondent’s counterclaim.
fc; Respondent claimed that the parties concluded the Oral Agreement because
there had been “problems” in relation to the first shipments of the product in
Year A. On the evidence, the arbitral tribunal held that, on the contrary, any
difficulty that arose in respect of these shipments was resolved with alacrity and
could be deemed a normal occurrence in international commerce. Respondent’s
argument that Claimant’s failure to open Letters of Credit timely was one such
problem was disproved by the fact that on several occasions Respondent
1 declined Claimant’s request for a shipment well before the deadlines for the
:3 issuance of a Letter of Credit under either the Contract or the alleged Oral
: Agreement. Nor did Respondent ever give Claimant’s failure to open Letters
of Credit as a reason for its non-performance, alleging, rather, production pro¬
; blems. An expen report also showed that at the relevant times Respondent’s
buffer stock had been insufficient, pointing in the direction of a scarcity of the
product.
fc As a consequence, the arbitrators were not convinced by Respondent’s con¬
tentions and concluded that no Oral Agreement had been entered into, that
i
■0 Respondent had been in breach of contract and that Claimant was entitled to
1 damages.
:: The arbitral tribunal then proceeded to assess such damages. Claimant sought
damages to compensate for eighteen substitute pinchases. The tribunal first
l noted that Swiss law applied, as it was the law chosen by the parties to govern
h their relationship. The relevant clause in the Contracts provided for the appli¬
' cation of “Swiss internal law”. The Claimant’s expert opined that this referenced
Swiss domestic law, consisting of primarily the Swiss Code of Obligations and
the Swiss Civil Code (the CO/SCC); Respondent’s expert contended that the
1980 United Nations Convention on Contracts for the International Sale of
I Goods (CISG) applied as an integral part of Swiss law. The experts agreed
:
1 later in the arbitration that there were no significant differences between
these two regimes in respect to the issues at hand. The tribunal therefore directed
Ik that the experts discuss the issues on the basis of both regimes and that there
3 would be no need for the tribunal to decide which regime applied.
Under both the CO/SCC and the CISG, a buyer need only show that seller
has defaulted, that substitute purchases were made and that these purchases were
performed in good faith (SCO) or in a reasonable manner (CISG). Claimant’s
expert opined that under Swiss law, in application of the general principle that an

aggrieved party has a duty to take all reasonable measures to mitigate its losses,
the good faith requirement means that substitute purchases must be made in a
reasonable manner, that is, at a reasonable price in line with the market condi¬
tions, within a reasonable time and at a reasonable place given the type of goods
at stake. Respondent’s expert did not disagree with this proposition, noting that
Art. 75 CISG states that substitute purchases must be made in a reasonable
manner and within a reasonable time after avoidance. A buyer making a
substitute purchase need only act reasonably in the circumstances and is not
obliged to carry out extensive investigations as to how the substitute goods can
be purchased on the most advantageous terms.
On the evidence before them, the arbitrators held that Claimant’s substitute
purchases had been made in a reasonable manner.
The arbitral tribunal then examined whether alleged savings made by the
Claimant on the freight paid in respect of fifteen out of its eighteen substitute
purchases - though not specified by Respondent - were earnings and should be
set off against the increased cost of the product paid by the Claimant in the
substitute purchases. The tribunal held that they should not.
It appeared from an expert’s report that under Swiss law the party arguing set¬
off must have a head of claim that can be used against the opposing claim. Here,
Respondent did not assert a claim or cause of action in respect of the freight
savings and did not provide any evidence. Also, under Swiss law if a defaulting
party profits from its breach - for instance by selling the goods to a third party at
a profit - these profits may not be claimed by the injured party. Since the savings
on freight by Claimant were not different in principle from such profits,
Respondent should not be allowed to rely on them as a ground for set-off.
The tribunal reached the same conclusion under the CISG, reasoning that the
costs of transporting goods does not appear to be included in the computation of
damages according to the CISG’s relevant provisions. This interpretation is
confirmed by commentaries. The tribunal also noted that the shipments
under the Contracts were or would have been on a Free-on-Board basis, so
that freight costs were solely for Claimant.
The arbitrators then dealt with and granted Respondent’s counterclaim for
despatch monies earned under the Year A Contract.
Claimant claimed interest to accrue from the time it paid for the substitute
purchases. The tribunal relied on the evidence of Claimant’s own expert to
dismiss this request, finding that in application of Swiss law default interest
ran here from the expiry of the time allowed to Respondent to perform.
Hence, in relation to substitute purchases in Year A, default interest would
only accrue from the end of Year A, while default interest in relation to Year
B and Year C was payable for substitute purchases made before the dates of
Respondent’s scheduled deliveries in those years.
474 Reprinted from tire Yearbook Commercial Arbitration

• i¿35S32ffiES32SSÍS¿.¡
ii

The tribunal finally directed that Respondent bear the costs of the arbitration
ri and compensate Claimant for ninety percent of its legal costs.
Excerpt
i
[1] “The following are the terms of the Contracts germane to the disputes:
f: ‘Clause 1 Commodity
The product to be suitable for manufacturing a certain type of finished
product.
I
■-
5. ‘Clause 2 Quantity
r - 80,000 metric tons (+/- 10%) for first quarter of the Year A and plus
§; buyer’s option of:
- 80,000 metric tons (+/- 10%) for second quarter of the Year A and plus
Ï buyer’s option of:
Ï
- 120,000 metric tons (+/- 10%) for the second half of the Year A (July-
December).’
! ‘Clause 5 Payment
By an irrevocable at sight letter of credit to be opened by the [Claimant]
favoring the [Respondent], at [Respondent’s nominated bank, latest in
: seven days before vessel’s arrival at load port, which shall be opened by
. the bank acceptable to the [Respondent].’
k ‘Clause 7 Destination
; [certain countries]’
- ‘Clause 9 Notice and Nomination
The [Claimant] shall propose [its] preferable laycan to the [Respondent] at
least seven days spread between first Iayday and cancelling date. The
f [Respondent] shall clarify [its] position on proposed laycan and confirm
it or counter with another seven days spread reasonably within one
working day after the [Claimant’s proposals. Any difference in both
parties’ option on laycan shall be settled with mutual discussion. Latest
jv seven days prior to the first Iayday of the vessel’s agreed laycan at loading
port, the [Claimant] shall nominate vessel with full particulars including
I■ nationality/flag/class, DWT, built year, ETA loading port and cargo intake
10% more or less in [the Claimant’s option but it should satisfy the ship¬
iv
'ÿ
ment size Clause 6. The [Claimant] shall fix the performing vessel subject to
the [Respondent’s approval within one working day after the receipt of the
[Claimant’s vessel nomination. Such approval shall only apply to the
l
I
[Respondent]’s ability to load the vessel in accordance with the terms of this
contract and shall not be unreasonably withheld.
The vessel will give five, three, two, one arrival notice to the
[Respondent] or ship agent which will be nominated by [the Claimant].’
‘Clause 10 Shipping Terms and Shipping Related Issues
10.1 [Claimant is] to nominate a single-desk bulk carrier with minimum 20
tons geared capacity, in good working order of minimum safe single pull
load of 20 mt each
10.3 [Respondent] to load into vessels holds, free of any risk, liability and
expense whatsoever to the [Claimant] at the guaranteed rate of 7,000 metric
tons PWWD of 24 consecutive hours. .. . [Claimant] shall guarantee that
nominated vessel has minimum four (4) workable gears and loading rate per
day as outlined above shall be based on four workable gears and pro-rata to
the number of gears available.
10.5 Lay-time to commence counting at 1300 hrs the same day of NOR
tendered before noon and lay-time to commence counting the following
morning at 0800 hrs if NOR tendered after noon, unless sooner com¬
menced in which case actual time used to count. Lay-time stop counting
on completion of loading.’
‘Clause 11 Demurrage and Despatch Money
Demurrage money at loading port to be paid by the [Respondent] to the
[Claimant] will be as per charter party but at the maximum rate of US$
8,500 per day or pro-rata for any part of a day for all time lost. Despatch
money at loading port to be paid by the [Claimant] to the [Respondent] at
the half rate of the Demurrage per day or pro-rata for any part of a day for
laytime saved.
Demurrage and Despatch money to be settled within 30 (thirty) days
after B/ L date. [Claimant] will present the following documents. ... ’
(....)
[2] “The Terms of Reference provided for the following questions to be
determined:
(1) What were the parties’ obligations under the Contracts?

(2) Does the Tribunal have jurisdiction to hear and determine the Respon¬
dent’s counterclaim for despatch money of US$ 19,670.00 relating to spot
sales contracts in Year A-1?
476 Reprinted from the Yearbook CommereiaJ Arbitration

SSÿuvSv
(3) Have the Claimant or the Respondent or both, breached any obligations
under the Contracts?
(4) If so, which obligations have been breached by the Claimant or the
Respondent or both?
(5a) Has the Claimant suffered loss and damage in consequence of any breach
by the Respondent; and if so,
(5b) What are the damages suffered by the Claimant?
(6a) Has the Respondent suffered loss and damage in consequence of any
breach by the Claimant; and if so,
(6b) What are the damages suffered by the Respondent?
(7) Whether interest is recoverable by the Claimant or the Respondent, and if
so, on what basis?
(8) Whether the Claimant or the Respondent is entitled to costs and expenses
arising out of this arbitration, including but not limited to reasonable
attorneys’ fees?
(9) Whether the Claimant or the Respondent is entided to any other relief?”
I. THE PARTIES’ OBLIGATIONS UNDER THE CONTRACTS
1. Sale and Purchase
[3] "The fundamental obligations of the parties under each Contract were the
sale by the Respondent and the purchase by the Claimant of the stipulated
quantities of the product conforming to identified specifications. The minimum
quantity to be sold and purchased was 80,000 MT (+/-10%) during the first
quarter of each year. The Claimant had options to purchase an additional quan¬
tity of 80,000 MT (+/-10%) for the second quarter of each year and a further
quantity of 120,000 MT (+/-10%) during the second half of each year. Each
shipment was to be of a size of about 40,000 MT.
2. Shipment and Payment
[4] “Clauses 5 and 9 of the Contracts contain the terms, inter alia, relating to
the nomination of a vessel and payment for each shipment of the product to be
made under each Contract. Clause 10 of the Contract, inter alia, sets out the
.terms relating to calculation and commencement of laytime.
[5] "It is common ground that the obligations under clause 5 and clause 9 are
independent. It is also common ground that ‘laycan’ is an abbreviation for ‘lay-
days cancelling’ and means the period (usually expressed as two dates) during
which a vessel must arrive at the load port and be ready to load. Readiness to
load is evinced by the tender of a notice of readiness (usually abbreviated to
Reprinted from the Yearttook Commercial -Arbitration 477

NOR). If a vessel arrives earlier than the first of the two dates there is no
obligation to commence loading but if she arrives after the second date a char¬
terer or shipper has the option of cancelling. ‘Laytime’ means the period of time
within which the cargo loading/discharging operation is required to be com¬
pleted. Laytime is usually either stipulated as a specific number of days or, per
clause 10 of the Contracts, calculated on a specified daily/hourly rate of loading/
discharging (in which event the amount of time available on laytime is ascer¬
tained by dividing the total amount of cargo by the daily/hourly rate). Thus a
vessel has to arrive sometime during laycan after which NOR can be tendered.
Laytime will start to run at a specified time after NOR is tendered. A vessel’s
arrival, tender of NOR and commencement of laytime are discrete events and all
may occur on the same day but this would be a coincidence unless contractually
stipulated.
[6] “Thus the plain meaning of the three clauses read together, is that the
sequence of steps relating to each shipment and payment therefor is as follows:
(i) first, laycan is agreed between the parties. The laycan is to have a seven-
day spread between first layday and cancelling date;
(ii) second, the Claimant nominates a vessel no later than seven days prior to
the first layday of the agreed laycan;
(iii) third, the Claimant fixes the vessel, if it receives the Respondent’s approv¬
al within one working day after receipt of vessel nomination;
(iv) fourth, the Claimant causes an irrevocable letter of credit favouring the
Respondent to be opened no later than seven days before the arrival at the
load port of the vessel that has been fixed pursuant to steps (ii) and (iii)
above;
(v) fifth, the vessel must arrive at the load port within the agreed seven-day
spread laycan and, before her arrival, the vessel must notify the
Respondent of the estimated time of arrival five days, three days, two
days and one day before arrival;
(vi) sixth, after the vessel’s arrival at the load port NOR may be tendered;
(vii). seventh, laytime commences at 13:00 hrs if NOR is tendered before noon
and at 08:00 hrs the following day if NOR is tendered after noon.
3. Oral Agreement
[7] “It is the Claimant’s case that in the Year A only the following shipments
of the product were made under the Year A Contract: [table omitted]. In its
Answer and Counterclaim dated as amended (Amended Answer and
Counterclaim) the Respondent pleaded that the following two further ship¬
ments of the product were made under the Year A Contract: [table omitted].

;is i--oc--x.--.---7-:-: .. .. i-::-: ¿yyvyÿÿrrzz: JIZ

The Claimant says that these two shipments were ‘spot sales’ and were not made
under the Year A Contract. No further shipments were made under the Year A
Contract. No shipments at all were made under the Year B and Year C
Contracts.”
a. Respondent’s arguments
[8] “The Respondent’s original defence pleaded in the Answer and

Counterclaim and Amended Answer and Counterclaim was essentially:
X
(i) that the Claimant had breached clause 5 of the Year A Contract by failing
■a
to open any irrevocable letter of credit in relation to the Claimant’s
requests for further shipments of the product between April and Decem¬
ber of Year A notwithstanding the Respondent’s oral requests therefor in
».
April, July, August, October and November of Year A. The Respondent
was thus not obliged to accept or propose any laycan period and was
entitled to refuse to deliver any further quantities of the product. The
Respondent deemed that the pending contracts for the Year A, Year B
and Year C were cancelled.
(ii) Further, as for the Year B and Year C Contracts, although the Claimant
had made inquiries as to the availability of the product it failed to open
any irrevocable letter of credit and the Respondent deemed that the
Claimant had terminated these two Contracts. This defence matured as
the arbitration progressed: First, in his witness statement, Mr. X (Assis¬
tant Vice-President, Marketing Department of the Respondent) states
that he reached an oral agreement with Ms. Y, the Claimant’s Senior
Vice-President (‘Oral Agreement’), after the first shipment had been com¬
pleted, to the effect that the Claimant would provide a copy of the appli¬
cation for a letter of credit a few weeks in advance of the scheduled arrival
of a vessel nominated by the Claimant and, second, in its Re-Amended
Answer and Counterclaim amplified by Mr. X in the course of his cross-
examination the Respondent’s defence was that the oral agreement called
for the Claimant to provide a letter of credit application or a letter of
credit one to two weeks in advance of the first day of laycan.
[9] “The Respondent says that the Oral Agreement came about because of the
following ‘problems’ encountered in relation to the very first shipment of the
product in February of Year A ( M/V ONE shipment):
(i) The laycan for M/V ONE was agreed to be 1 to 8 February of Year A.
According to Mr. X the Claimant provided the Respondent with a copy of

the application for a letter of credit on 26 January of Year A and caused the
letter of credit to be opened on that day. The Respondent was notified of
the opening of the letter of credit a few days later, on 30 January of Year A.
M/V ONE arrived at the load port on 4 February of Year A. She com¬
menced loading the same day.
(ii) The Respondent requested some amendments to be made to the letter of
credit. These amendments in the main corrected the description of the
documents required to be tendered under the letter of credit and were
advised by the issuing bank on 30 January Year A and 31 January Year A.
(in) Thereafter the Claimant requested a further amendment to the letter of
credit which was essentially to change one of the documents required to
be presented by the Respondent under the letter of credit from a ‘non-
negotiable clean on board ocean bill of lading’ to a ‘Mate’s receipt’. The
Respondent agreed to this amendment which was advised by the issuing
bank on 7 February of Year A, the day before loading of the product on
board the M/V ONE was completed and two days before she set sail.
[10] “Mr. X makes the following complaints concerning the above events in
his witness statement:
‘These amendments took time and put Respondent in a difficult position

because the letter of credit was opened only eight or nine days before
Claimant’s nominated vessel arrived and it was not in good order on the
date that Respondent started loading the product and was not in good order
until 7 February Year A, one day before Respondent completed loading of
the product. I felt these days were unworkable and after the First Shipment
was completed I informed Ms. Y on the telephone that she had to provide
me with the LC Applications at least a few weeks in advance for me to
check and ensure that all its terms were in order. Ms. Y agreed with my
request to do so and she did so for the Second, Third and Fourth Ship¬
ments.’
However, in the next paragraph of his witness statement, inter alia, he says:
‘Claimant’s nominated vessel, M/V ONE, arrived at Port X on 4 February

Year A. The letter of credit dated 26 January Year A was opened nine days
before the M/V ONE arrived at Port X in accordance with Clause 5 of the
Year A Contract. Respondent was assured of payment for the First Ship¬
ment as it had received Claimant’s letter of credit and proceeded to load the
product into the vessel. Respondent completed loading of the product in
the total volume of 34,410.20 metric tons on 8 February Year A. Annexed

■
- dTT

hereto are copies of the Laytime Calculation M/V ONE, the Statement of
Facts and the Mate’s Receipt for the First Shipment.’
As at 5 May Year C, (the date of Mr. X’s witness statement) therefore, the
Respondent’s chief or only complaint was in respect of the status of the letter
of credit during the period 4 February (the day loading commenced) to 7
February Year A (the day before loading was completed).
[11] “In the Respondent’s Closing submissions the alleged problems experi¬
enced with the M/V ONE shipment took on new dimensions. The Respondent
7'
submitted that the procedure to be followed pursuant to clauses 5 and 9 of the
Contract proved to be unworkable and that it was reasonable for Respondent to
have had real concerns as it was not assured of payment for the M/V ONE
shipment because the letter of credit was not in order by the contractually
stipulated deadlines and during the loading of the product by reason of the
facts that:
(i) Respondent was notified of the letter of credit only on 30 January Year A,
‘just’ two days before the first day of the agreed laycan, 1 February Year A
and five days before M/V ONE’s arrival on 4 February Year A;
(ii) there were three amendments to the letter of credit, the first two being
made on 30 and 31 January Year A respectively and the third being made
on 7 February Year A; and
(iii) on or about 7 February Year A Respondent had in its possession a letter of
credit requiring presentation of a bill of lading when ‘suddenly’ it was
informed by Claimant that only a mate's receipt would be provided and
the letter of credit had to be amended accordingly.
Respondent could not have refused to agree to Claimant’s proposed amendment

because if it did refuse it would only have been able to tender a mate’s receipt to
the bank and it then would not have been paid under the letter of credit.
[12] “The Tribunal has difficulty in accepting all these points which do not
accurately reflect the factual position.
(i) First, as noted above, Mr. X, in his witness statement, does not make much
fuss of the fact that the letter of credit was issued just two days before the
first day of the agreed laycan of 1 to 8 February and five days before the
vessel’s arrival on 4 February Year A. The Claimant had provided
Respondent a copy of the Claimant’s 26 January Year A application for
a letter of credit.
(ii) Second, it was the Respondent who requested the first two amendments
to the letter of credit.

ARBITRAL AWARDS CASE NO, 13676, 2007
(iii) Third, these two amendments were commonplace amendments and were
made timeously as the Respondent was notified of the amendments
around the time it received notification of the letter of credit itself on
30 January Year A.
(iv) Fourth, amendments to letter of credit terms are a regular occurrence in
international trade and, in the Tribunal’s view, the Respondent, a large
business concern engaged in the international sale of goods and Mr. X,
who impressed the Tribunal as an astute man of business well versed in
international commerce, would have been well aware of this.
(v) Fifth, it cannot be gainsaid that letters of credit can only be amended after
they are issued. Requirements for amendments may arise whether a letter
of credit is issued seven days or seventy days before a vessel’s arrival. The
provision by a buyer and subsequent tender to a bank by a seller of non-
conforming documents do occur in the course of international sale trans¬
actions. Two options are then available: (i) the non-conforming document
is amended so as to make it conform to the letter of credit terms or (ii) the
letter of credit terms are amended to substitute the non-conforming doc¬
ument in place of the document originally stipulated.
[13] “What transpired concerning the M/V ONE Shipment before 7 February
Year A was not a different scenario. Any ‘problem’ was resolved with alacrity -
the amendment to the letter of credit (allowing a mate’s receipt to be tendered to
Respondent’s bank in place of bills of lading) was issued by 7 February Year A
and the Respondent faced no impediments in obtaining payment under the letter
of credit. None of the points adverted to above should have or could have given
rise to any concern on the pan of the Respondent that it would not have been
paid on the M/V ONE shipment or subsequent shipments. Glitches in
international commerce do occur from time to time and those that did occur
in relation to the M/V ONE shipment cannot be said to have been major ones.”
b. Claimant’s arguments
[14] “Counsel for the Claimant submitted that there were other matters that
substantiated the Claimant’s position that there was no Oral Agreement
between the parties to vary clause 5 of the Contracts. The Tribunal will now
consider the parties’ evidence and submissions relating to these matters.”
i. Respondent’s declination of requests by Claimant

[15] “First, it is not in dispute that the Claimant made several requests in Year
A for further shipments of the product under the Year A Contract and that the

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Respondent either rejected these requests or resiled from its earlier acceptances
of the Claimant’s requests. The following table sets out these requests and the
Respondent’s declination of them: [Table 1 omitted].
[16] “ Second, it will be readily apparent from Table 1 that at least on five
occasions the Respondent either resiled from its earlier acceptances of or
rejected the Claimant’s requests for laycan well before the deadlines for the
issuance of a letter of credit under either Clause 5 of the Contract (seven
days before arrival of vessel) or the alleged oral agreement (one to two weeks
before first day of laycan).”
**■S
ii. Reasons given for declination of requests
[17] “Third, in respect of all seven requests for laycan set out in Table 1 the
Respondent offers various reasons for the ‘non-performance’ on its part:
(i) in its pleadings as amended the Respondent states that despite the Respon¬
dent’s repeated oral requests therefor (in April, July, August, October and
November of Year A) the Claimant, in breach of its contractual obligation
to provide a letter of credit or letter of credit application a few weeks in
advance of the first laycan day, failed to do so. The Respondent was
therefore not obliged to accept or counter-propose any laycan period
(including the laycan period of 8 to 15 May Year A requested by the
Claimant on 2 May Year A) and the Respondent was left with no
alternative but to refuse to deliver any further quantities of the product.
(ii) In his witness statement Mr. X said that after M/V FOUR shipment
Claimant ordered further quantities of the product but provided neither
applications for letters of credit nor letters of credit pursuant to the terms
of Clause 5. Consequently Respondent was not assured of payment and
could not make any delivery of the product. In relation to the six proposed
shipments (numbered 2, 3, 5, 6 and 7 in Table 1) Mr. X makes no mention
whatsoever in his written statement of proposed shipments number 2 and
number 3. He gave no reasons why the Respondent resiled from its pre¬
vious acceptances of the Claimant’s requests for laycan twelve and
eighteen days respectively, before the first day of laycan.
(üi) Mr. X did give details of Claimant’s failures to provide letters of credit or
applications therefor in respect of the proposed shipments numbered 5, 6
and 7 that led the Respondent to retract its earlier acceptance of the Clai¬
mant’s requests for laycan. He states that in each of the three instances,
(a) on receiving the Claimant’s request for laycan he spoke to Ms. Y and
reiterated that it was necessary for the Respondent to receive an applica¬
tion for a letter of credit; and (b) the Claimant failed to send to him a letter

of credit application. These three proposed shipments were cancelled by

the Respondent twenty-five days, forty-nine days and nineteen days
respectively before the first day of the agreed laycan. In his witness state¬
ment Mr. X did not explain why the Claimant was obliged to provide any
application for a letter of credit so well in advance of either the seventh day
before the first of laycan or one to two weeks before the first day of laycan
in respect of each of these three proposed shipments.
(iv) Mr. X was questioned in cross-examination in relation to the shipments
numbered 2, 3, 5, 6 and 7 and, specifically, why the Respondent had
cancelled these five proposed shipments before the deadlines fixed by
the alleged Oral Agreement for providing a letter of credit or application
therefor and had thus not even given the Claimant the opportunity to
comply with the alleged Oral Agreement. In his answers Mr. X recanted
his earlier evidence. He said that because the Claimant had failed to pro¬
vide applications for letters of credit on two occasions (i.e. for the agreed
laycans of 16 April to 23 April Year A and 8 May to 15 May Year A,
proposed shipments numbered 1 and 4 respectively in Table 1) the
Respondent had lost confidence and was constrained to reject all other
shipments withoút affording the Claimant the opportunity to comply
with the Oral Agreement (hereafter, also ‘problem shipments 1 and 4’).”
iii. Reasons given are unconvincing

[18] “ Fourth, the Tribunal finds the reason given by Mr. X in cross-examina¬
tion for the Respondent’s disavowal of its contractual obligations difficult to
accept. First, it ignores the fact that, even on its own account, the Respondent
had encountered no difficulty with three actual shipments (M/V FIVE, M/V
SIX and M/V FOUR) that had been made before problem shipments 1 and 4.
Second, Mr. X’s excuse contradicts the chronology of events. Even before
problem shipment 4, the Respondent had already resiled from its agreements
to the Claimant’s requests for laycan in respect of proposed shipments num¬
bered 2 (laycan 23 April to 29 April Year A) and 3 (laycan 29 April Year A)
twelve and eighteen days respectively before the first day of laycan. As noted
above Mr. X said nothing whatsoever in his statement about these two
shipments.
[19] "Third, earlier in his cross-examination when he was asked why the
Respondent had not waited until one week before 23 April Year A before can¬
celling proposed shipment numbered 2 (laycan 23 April to 29 April Year A) all
Mr. X would say at first was that as the Claimant had failed to provide a letter of
credit application for problem shipment 1 (laycan 16 April to 23 April Year A)
there was no ‘guarantee’ that the Respondent would receive a letter of credit

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application for proposed shipment number 2. This answer bespeaks a willing¬

ness on the part of the Respondent to treat one previous occasion of alleged
default on the part of the Claimant as justification for not making further ship¬
ments. When pressed further in cross-examination Mr. X ultimately said ‘I am
not exact sure I can answer this one correctly.’ However, Mr. X was not deterred
by this difficulty and he went on a little later in cross-examination to give the
answer adverted to above viz. that the Respondent had lost confidence and was
constrained to reject all other shipments because of the two alleged occasions
when the Claimant failed to provide applications for letters of credit timeously.
It seems to the Tribunal that Mr. X was not much bothered by the inconsistent
answers and was prepared to titivate the reason for the Respondent’s cancella¬
tion of all the proposed Year A shipments notwithstanding that he never over¬
came his earlier inability to answer ‘this one correctly’.
[20] “Fourth, even on a cursory examination of the events surrounding
problem shipments 1 and 4, it will be readily apparent that there were in fact
no ‘problems’ concerning these shipments. Mr. X makes no complaint about
problem shipment 1 {laycan 16 April to 23 April Year A) in his witness state¬
ment. The Respondent also made no averment relating to this shipment in its
pleadings. There was thus no joinder of issue regarding this proposed shipment
and the Claimant was unaware that the Respondent would make an issue of it.
Nevertheless, Ms. Y was cross-examined on this shipment at some length by
Respondent’s counsel. It was put to Ms. Y that seven days before the first day of
laycan was 9 April Year A and that the Claimant had not caused a letter of credit
to be issued by that day. Ms. Y’s not unreasonable reply was that the Claimant
was not obliged to open a letter of credit on the first day of laycan but only seven
days before the vessel’s arrival and that the vessel could arrive on the last day of
laycan. The following scenario was then put to Ms. Y:
‘If Mr. X had replied on 10 April Year A accepting the nomination of the
vessel, if Ms. Y had then contacted the shipowner on the same day and was
informed that the vessel was scheduled to arrive on the 16 April Year A, the
first day of laycan, then there would only have been six days before the
vessel’s arrival and even if Claimant managed to issue a letter of credit
within a day, they would have been in breach of contract.’
Ms. Y could but only agree and she did. She went on to say that if the
Respondent was so concerned by a day’s delay it could have made the vessel
wait one day. It was then put to Ms. Y that there was no provision in the
Contract that allowed the Respondent to make the vessel wait one day.
[21] “This line of cross-examination was based on conjecture and supposition
and was nothing to the point. In its submissions the Respondent states and it is

not in dispute that the Claimant nominated the vessel M/V TWO ‘around or just
before’ 9 April Year A. Ms. Y said in cross-examination that the Claimant could
procure the issuance of a letter of credit in one day. This was not challenged. The
Respondent could have responded to this nomination by asking for a letter of
credit to be issued by 9 April Year A and by pointing out that as a letter of credit
is to be issued seven days before the first day of laycan and that the Claimant
should ensure that the letter of credit would be issued forthwith failing which
laycan would be deemed to start seven days after receipt of the letter of credit
and the Respondent would not accept any NOR tendered by the vessel earlier
than the seventh day after the letter of credit had been received. Instead of this
simple expedient the Respondent chose to reject the nomination of the M/V
TWO on 9 April Year A.
[22] “There was in truth no ‘problem’ concerning this proposed shipment and
that is why Mr. X said nothing about it at all in his witness statement. It seems to
the Tribunal that problems regarding this shipment were thought up much later
in the day and surfaced, first, in the cross-examination of Ms. Y and, subse¬
quently, when Mr. X gave answers in cross-examination.
[23] “As for problem shipment 4 (agreed laycan 8 May to 15 May Year A) the
Claimant by its e-mail of 30 April Year A nominated the vessel M/V THREE
and requested the Respondent to confirm the nomination by the next day, 1 May
Year A. The Respondent rejected the nomination on 2 May Year A. In its
written submissions the Respondent stated that ¿/"Respondent had accepted
Claimant’s nomination on 2 May Year A and if the M/V THREE had arrived
on 8 May Year A, the first day of laycan, then any letter of credit would not have
been opened seven days before the vessel’s arrival and Claimant would then have
been in breach of its clause 5 obligations.
[24] “This submission is again based on conjecture and supposition. Of course
the vessel may have arrived on 8 May Year A. Indeed she may have arrived
before or after laycan or any day during the agreed laycan or she may not have
arrived at all! The point is that on the 30 April Year A or 2 May Year A the
Claimant was not in breach of the Year A Contract. There is nothing in the
Respondent’s suppositions to lead to the conclusion that as of 1 or 2 May Year A
it could be said with certainty the Claimant would have been in breach of Clause
5. If the Respondent had any concern about the possibility of the vessel arriving
too early it could have written to the Claimant on 1 or 2 May Year A along the
lines suggested above viz. notifying the Claimant that if the letter of credit was
received less than seven days before the vessel’s estimated time of arrival (ETA)
then laycan would be deemed to start only seven days after receipt of the letter of
credit and the Respondent would not be obliged to accept any NOR tendered
earlier by the vessel. It is to be noted that the Respondent would have had at least
five days’ notice of any nominated vessel’s arrival by reason of the last paragraph

■ ■
'iiwi
of Clause 9 of the Contracts which stipulates that the vessel is to give five, three,
two and one days’ notice of her ETA. It was not suggested by either party that
this contractual provision was not complied with in the shipments that were
carried out.
[25] "Mr. X did say in his witness statement that he was surprised by the
Claimant’s late nomination of the M/V THREE, that it would have been
very difficult for him to have approved any application for a letter of credit
on the same day it was received, that pursuant to Clause 5 of the Contract a
letter of credit must be opened at least seven days before the vessel’s arrival, that
nonetheless he was prepared to accommodate Ms. Y’s request if Claimant
s opened a letter of credit in accordance with the payment terms, that he called
Ms. Y on the same day and informed her that delivery would be made provided
[a named bank] opened a letter of credit. He says he also told Ms. Y that as the
vessel was to arrive on 8 May Year A, Claimant had to open the letter of credit
seven days prior i.e. on 30 April Year A itself (1 May being a public holiday) and
that Ms. Y agreed to this and stated that she would open the letter of credit
immediately. He then says that Respondent did not receive a letter of credit on
30 April Year A and that on 2 May Year A he instructed his assistant to e-mail
Ms. Y to inform her that Respondent could not deliver the product pursuant to
the order. Ms. Y’s evidence was that she could not recall having a telephone
conversation with Mr. X regarding this shipment.
[26] “It is not at all clear to the Tribunal why Mr. X asserted that the vessel
‘was to arrive on 8 May Year A’. He would have known that the vessel could
have arrived, legitimately, anytime during the seven-day spread of the laycan.
However, it is interesting to note that in recounting the alleged events of
30 April Year A, Mr. X, in his written statement, does not refer to the Oral
Agreement (which he says, elsewhere in his evidence, came about soon after the
first shipment on M/V ONE on or about 8 February Year A) but refers instead
to Clause 5 specifically and to the contractual requirement for a letter of credit to
be opened seven days before a vessel’s arrival. It strikes the Tribunal as peculiar
that in his alleged telephone conversation with Ms. Y, Mr. X would not have
reminded her of the Oral Agreement. After all it was his evidence that the Oral
Agreement came about as a result of the problems encountered in the course of
the M/V ONE shipment in early February Year A. Here then, on the 30 April
Year A, the Respondent was allegedly facing yet another ‘problem’ but Mr. X
appears to have forgotten all about the earlier problems and the alleged Oral
Agreement which resulted therefrom and calls on Ms. Y to adhere to the original
contractual arrangements.
[27] “Even if the Tribunal were to take a generous view of Mr. X’s tale it is
unable to understand why Mr. X acted with such alacrity and in a peremptory
manner on 2 May Year A given, as he himself states, that 1 May Year A was a

public holiday. It is perhaps because Mr. X’s version of the events of 30 April
Year A is so incredible that counsel for the Respondent stayed well clear of it in
his submissions.
[28] “The position is quite simply that no ‘problem’ of any sort is discernible
from either the Respondent’s evidence or submissions in relation to problem
shipment 4.
[29] “Fifth, the events surrounding problem shipments 1 and 4 were not much
different to those that occurred previously. The M/V FIVE shipment ... is
instructive. On 27 February Year A Ms. Y sent an e-mail to the Respondent
nominating the M/V FIVE for a laycan 15/22 March Year A to be ‘narrowed
into six days’ by 8 March Year A. On the same day, the Respondent replied to
Ms. Y accepting the nomination but stipulated that it was ‘subject to receipt of
your clean L/C seven working days in advance before loading’.
[30] “On 8 March Year A Mr. X sent a facsimile to Ms. Y referring to a
‘tentative laycan’ of March 16/22 for the M/V FIVE, complaining that he had
not ‘received any progress’ from the Claimant and stating that he would like to
remind Ms. Y that the letter of credit should be provided ‘within five working
days prior to the first day of layday . . . ’. Ms. Y replied by e-mail on the same
day and informed Mr. X that the letter of credit had in fact been issued on
2 March Year A and that she would be sending a copy of it via facsimile. In
this e-mail Ms. Y also informed Mr. X that the M/V FIVE’S ETA was 18 March
Year A. In the event, M/V FIVE arrived on 19 March Year A.
[31] “Thus it would appear that:
(i) as at 27 February Year A (almost three weeks after the alleged problems
encountered over the M/V ONE shipment) the Respondent: (a) was
prepared to and did accept a proposed laycan and vessel nomination on
the same day it received the proposal and nomination from the Claimant
subject to the provision of a letter of credit seven working days before
loadings (b) did not require sight of a letter of credit application one to two
weeks in advance of the first day of laycan;
(ii) as at 8 March Year A (although only seven days before the first day of the
15/22 March laycan mentioned in Ms. Y’s 27 February Year A e-mail and
eight days before the 16/22 March laycan mentioned in Mr. X’s 8 March
Year A facsimile) the Respondent: (a) was content to remind the Claim¬
ant to provide a letter of credit five working days prior to the first day of
laycan; (b) still did not require sight of a letter of credit application; and
(c) was aware and, apparently, prepared to accept that the nominated
vessel would not be arriving on the first day of laycan but a few days
after it.

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[32] “Mr. X has put forward the M/V FIVE shipment as one example of a
shipment that was performed without problems. Problem shipment 4 was used
by Mr. X as an instance of an occasion when the Claimant failed to provide a
letter of application well in advance of the first day of laycan which caused a loss
of confidence on the part of the Respondent who was thus constrained to reject
all other shipments.
[33] “It will be readily apparent from the discussion above that there is no such
appreciable difference between the M/V FIVE shipment and problem shipment
4 as to cause the first to be classified as a ‘flawless’ shipment and the other to be a
‘problem’ shipment. Indeed, in problem shipment 4, the Respondent could have
done what it did for the M/V FIVE and responded to the Claimant’s 30 April
Year A nomination of the M/V THREE on the same day accepting the nom¬
ination and stating that it was subject to a letter of credit being provided in
compliance with Clause 5.
[34] “The communications between the parties relating to the M/V FIVE
adverted to above demonstrate that
(i) the parties were prepared to and did make minor adjustments to laycan .
and
(ii) the Respondent and Mr. X must have been well aware that a vessel does
not have to arrive on the first day of laycan and she can do so anytime
during it.”
iv. Alleged real reason also unconvincing

[35] “It will be seen from Table 1 above that on each of the occasions the
Respondent either rejected the Claimant’s nomination of a vessel or resiled from
a previously agreed laycan[;] the reason for doing so given by the Respondent in
contemporaneous correspondence was that it was facing production problems.
In not a single instance in such correspondence did the Respondent mention a
failure by the Claimant to comply with either clause 5 of the Year A Contract or
the Oral Agreement.
[36] “In his witness statement and oral evidence Mr. X sought to explain
away the Respondent’s contemporaneous correspondence. He said that in
fact the Respondent had excess product to meet the Claimant’s orders. The
Respondent had not faced production problems but gave this reason for
non-performance because it would have been impolite to accuse a customer
in writing of a sensitive matter such as failing to perform a contractual
obligation.
[37] “The Tribunal is unable to accept this explanation. First, refraining from
being impolite is one thing but then to lay the blame for non-performance on

oneself when it is the other party who is supposed to be in default is quite

another thing. Second, Mr. X did in fact write to Ms. Y in terms that were,
by his standards, impolite or bordered on the impolite. His facsimiles to Ms.
Y dated the February 27 Year A and March 8 Year A read as follows:
‘27 February Year A

Subject: L/C for the product shipment
Regarding to tentative laycan during 5-12 March Year A, until this present,
we have not received any progress from your side. We would like to remind
you that L/C and vessel nomination should be sent us within five working
days prior to the first day of layday to arrange cargo without delay since
loading schedule in this month is quite congested.
Looking forward to hearing from you soon.’
‘8 March Year A
Subject: L/C for the product shipment to . . .
Regarding to tentative laycan during 16-22 March, M/V FIVE, until this
present, we have not received any progress from your side. We would like
to remind you that L/C should be sent us within five working days prior to
the first day of layday to arrange cargo without delay since loading schedule
in this month is quite congested.
Looking forward to hearing from you soon.’
If the Respondent did not feel inhibited from writing such letters to the
Claimant when the Claimant was not in breach of contract then nothing
could have been simpler than to adopt these or a form of these words when
writing to the Claimant on the occasions when the Claimant was allegedly in
breach.
[38] “Third, the contemporaneous exchange of correspondence between the
Claimant and the Respondent relating to proposed shipments 2, 3, 5, 6 and 7 in
Table 1 gives the lie to the explanation proffered by Mr. X. The first set of
correspondence commenced immediately after Mr. X’s facsimile of 9 April
Year A rejecting the Claimant’s nomination of the M/V TWO (vide above).
Replying on the same day to Mr. X’s 9 April Year A facsimile, Ms. Y reminded
Mr. X that the Claimant had agreed the 16/23 April Year A laycan for the M/V
TWO on 14 March Year A and she requested Mr. X to review the position and to
revert with his confirmation of the nomination. There was no reply. Over the
next two days Ms. Y then followed up with inquiries about the status of two
other agreed laycans 23/29 April Year A (proposed shipment 2 in Table 1) and 29
April/5 May Year A (proposed shipment 3 in Table 1).

ITÿT25S5JS52S5S2 :i::::-:-i-:-ri

[39] “The following is the exchange of e-mails between Ms. Y and Ms. Z
(Mr. X’s assistant at Respondent’s).
TO April Year A
Dear Ms. Z,
Since there is a problem at your plant, I would like to make sure that our
delivery . .. with lay/can 23-29 April is secure. I would appreciate if you
can re-confirm it to me by tomorrow/noon time.
Many thanks / Regards, Ms. Y’
TO April Year A 5:13 PM
Dear Ms. Y,
We are now waiting production plan from Production Manager, and will
come back to you soon.
Best regards, Ms. Z’
T1 April Year A
Ms. Z,
If possible, I would appreciate to know about this issue today. As 23 April is
not too far away, I do not want to risk my supply delivery to our plant in
country N. They in fact needed this cargo as early as possible and any
unexpected delay would put us in a very difficult position. If you confirm
that the laycan does not carry risk, we’ll start looking for a vessel today.
Many thanks for considering our situation as well and
Best regards, Ms. Y’
T1 April Year A 12:19 PM
Dear Ms. Y,
We just received updated production status from factory and learn that we
will be facing serious production problem till next month. Therefore, we
have to decline all your shipments proposed to load in April due to above
reason. As long as the said problem has been resolved as well, we would
inform you straight away. Hopefully, you fully understand our hard situ¬
ation and we deeply apologize for inconvenience caused.
T1 April Year A
Dear Ms. Z,
Thanks for informing us. I hope, the breakdown will be recovered soon and
you will all go back to normal business. I just would like to know if our lay/
can 29 April-5 May will also be a problem.
Good luck and best regards, Ms. Y’

‘11 April Year A 3:16 PM

Dear Ms. Y,
So far, we are unable to absolutely expect cargo availability until we got the
progress on production situation after [a holiday]. Then, we will contact
you soon.
[40] “It is clear from this exchange of e-mails that Ms. Y was concerned about
the status of the two agreed laycans subsequent to the M/V TWO laycan of 16/
23 April Year A that had been cancelled. There was no question of having to be
impolite to Ms. Y as it cannot be said and no suggestion has been made that at the
time of the e-mail exchange of the 10 and 11 April Year A the Claimant was in
breach of any contractual obligation or the Oral Agreement in relation to the
two laycans for which Ms. Y was making inquiries. It is startling then that three
times in this e-mail exchange the Respondent would rely on its production
problems as the only excuse for non-performance.
[41] “The same can be said for proposed shipments 5, 6 and 7. Twenty-five
days before proposed shipment 5, forty-nine days before proposed shipment 6
and nineteen days before proposed shipment 7 (when the Claimant could not
have been said to be in breach of any contractual obligation) the Respondent also
relied on these production problems as the only excuse for non-performance on
its part. Thus it would seem, whether or not its customers were in default, thé
Respondent would be prepared to use the same excuse for not performing its
contractual obligations and, moreover, use an excuse that attributed blame to
itself but which was also false - because in fact the. Respondent had sufficient
quantities of the product to fulfil the proposed shipments to the Claimant.
[42] “Fourth, whether or not the Respondent faced production problems, the
evidence that the Respondent had a shortage of the product at the relevant times
in Year A is overwhelming. In cross-examination Mr. X had admitted that: (a) in
his view, the safety stock for the Respondent to maintain in its [storage facility]
is about half a month of its monthly sales i.e. a given quantity of the product; and
(b) the Respondent in fact suffered from shortages of stock in April, May, June
and July Year A. A summary of the Respondent’s product stock levels for Year
A is set out below: (table omitted). It is evident that for the months of March to
September Year A, when the Respondent was rejecting the Claimant’s laycan
requests, the Respondent’s product stock was substantially less than the safety
or buffer stock.
[43] “The Tribunal notes the evidence given by the Claimant’s expert on the
relevant industry, Mr. W. Mr. W filed a report analyzing the Respondent’s
historical records of the level of the product production in Year A, Year B
and Year C, the length of stoppage hours in the Respondent’s plants and the

l-llï-IÏZ

corresponding [storage facility] records for the same period. Mr. W reached the
conclusion that the Respondent did not appear to have sufficient buffer stock on
several occasions, including during the times when it rejected the Claimant’s
laycan proposals. Mr. W’s analysis and conclusion is consistent at least with
Mr. X’s evidence.
[44] “In the Tribunal’s view, the main issue is not so much whether the
Respondent had sufficient stock of the product but whether the Respondent
was in breach of the Contracts to make shipments of the product. The Tribunal
notes that in the morning of the day on which Mr. W was due to give evidence,
the Respondent announced that it did not wish to cross-examine Mr. W.”
4. Findings on Issue no. 1
[45] “The Tribunal finds that the Contracts had not been varied by any Oral
Agreement. The Tribunal finds that:
(i) the Claimant was obliged to
(a) nominate a vessel only after the parties had agreed a laycan;
(b) fix the vessel subject to the Respondent’s approval within one
working day after receipt of vessel nomination;
(c) cause a letter of credit to be opened within seven days of the vessel’s
arrival at the load port; and
(ii) the Respondent was obliged to accept the Claimant’s requests for laycan
and for shipments of quantities of the product made in conformity with the
Contracts and to make shipments of such quantities in accordance with the
terms of the Contract.”
II. BREACH OF THE CONTRACTS
1. Year A
[46] “It follows from the discussion above that, in relation to the proposed
shipments set out in Table 1 above, the Respondent was in breach of its obliga¬
tions under the Year A Contract in failing to make shipments of the product
pursuant to the Claimant’s various requests therefor.
[47] “It has been noted above that there is also dispute between the parties
over the exact quantity shipped under the Year A Contract. What the actual
quantity shipped was turns solely on whether the M/V FIVE shipment was
made pursuant to a discrete, ‘spot sale’ contract or under the Year A Contract.

[48] “Ms. Y gave evidence that in discussions with Mr. X leading to the agree¬
ment on the M/V FIVE shipment, they had agreed to adopt the terms of the Year
A Contract, in particular the price of US$ X per metric tonne as the terms for
this spot sale. The Claimant submitted that this shipment was a spot sale and was
clearly not intended to be a shipment under the Year A Contract. The Claimant
relied on the following in support of this submission:
(i) the M/V FIVE shipment was bound for Country X, which is not a des¬
tination agreed on under the Year A Contract;
(ii) under clause 2 of the Year A Contract, the Respondent was only obliged
to deliver 80,000 metric tonnes (+/- 10%) of the product to the Claimant
in the first quarter of Year A. If this shipment onboard M/V FIVE con¬
stituted a shipment under the Year A Contract, the total quantity of the
product delivered to the Claimant in the first quarter of Year A would
have exceeded 80,000 metric tonnes (+/- 10%);
(iii) The quantity shipped onboard M/V FIVE was 62,000 MT but the contract
only envisages shipments of 40,000 MT each;
(iv) The loading method for the M/V FIVE (floating crane) was different;
(v) The demurrage rate for the M/V FIVE shipment was US$ 10,000 per day
compared to the US$ 8,500 per day under the Year A Contract.
[49] “Counsel for the Respondent submitted that reliance on these factors was
misplaced as on the evidence the parties did not treat the contract terms as
immutable:
(i) First, the contractual destinations under the Year A Contract are [certain
countries]. However, by an e-mail dated 26 March Year A, Ms. Y asked if
Respondent could make a delivery to a non-induded country, ‘Country
N’. Ms. Y admitted under cross-examination that when she made that
request for delivery to Country N, she believed that that was a delivery
to be made under the Year A Contract.
(ii) Second, whilst the delivery quantity stipulated by the Year A Contract
was 40,000 MT +/- 10%, that same request for a delivery to Country N by
Ms. Y called for a shipment of only 25,000 MT. Therefore, if a shipment
size of 25,000 MT is acceptable when the contract stipulates 40,000 MT,
then a shipment size of 62,000 MT must also be acceptable.
(iii) Third, Mr. F (the Claimant’s Vice-President), in his oral evidence frankly
conceded that the Country N shipment and the M/V FIVE shipment
ought not to be distinguishable - either both came within the Year A
Contract or both fell outside it.

(iv) Fourth, with respect to Cumulative Quantity, the Year A Contract calls
for a total of 160,000 MT of the product to be delivered in the first half of
Year A. Even without taking into account the M/V FIVE delivery, this
160,000 MT quantity would have been exceeded if all of Claimant’s
requests for the product had been fulfilled.
(v) Fifth, Claimant’s conduct at the material times also shows that it had in
fact treated the delivery onboard the M/V FIVE as being performed under
the Year A Contract:
(a) in an e-mail dated 25 November Year A, Ms. Y wrote to Respondent

■s
asking if ‘there is a possibility to provide us remaining quantity of our
existing Year A contract which is 101,612 m[etric] tons’. The remain¬
ing quantity of 101,612 MT under the Year A Contract mentioned by
Ms, Y is only correct if the delivery onboard the M/V FIVE is
counted as having taken place under the Year A Contract.
(b) by a letter dated 4 December Year A signed by Ms. Y and the 'Pres¬
ident & COO’ of Claimant, Claimant stated that 'in respect to our
contract of Year A, we had performed 178,387 m[etric] tons of the
product under May of Year A’. This figure of 178,387 MT performed
under the Year A Contract is only correct if the delivery onboard the
M/V FIVE is counted. In addition, the table attached to the said letter
furnished by Claimant clearly lists M/V FIVE as a delivery per¬
formed under the Year A Contract.
(c) in a letter dated 1 April Year C from Claimant’s solicitors to Res¬
pondent, it is stated that ‘our clients have instructed us that you have
delivered only a quantity of about 178,387 metric tonnes in Year A
out of the contractually agreed quantity’. Again, this figure of
178,387 MT is correct only if the delivery onboard the M/V FIVE
is counted.
[50] “On the evidence, the Tribunal finds that the M/V FIVE shipment con¬
stituted part of the deliveries made under the Year A Contract. It follows that
the quantity of the product not delivered under the Year A Contract is
101,612.63 MT.”
2. Year B and Year C
[51] “Ms. Y wrote to Mr. X on 25 November Year A in the following terms:
‘From: Ms. Y - Sent: 25 November Year A, 8:38 PM

To: Mr. X

Cc: Ms. Z
Subject: Respondent / Year A + Year B
Dear Mr. X,
I refer to telephone call of Ms. Z on 20 November. She was Indicating that
there is a possibility to provide us remaining quantity of our existing Year A
contract which is 101,612 metric tons.
As requested over our telephone call of the following day with you, we
would like to indicate how much of this quantity can be delivered when.
Please give us an assurance by writing us your capability to supply a/m
quantity. Since June, we have been setting delivery time from your source
and you were declaring us your inability to perform, sometimes at the last
minute. We do not want it to happen again. This has been causing us
money/time/effort, not to be able to function our existing contract. I
hope you understand our situation; we expect to receive your sincere reply.
Please clarify your position with regards to your telephone call of
20 November. Please also clarify your position for our existing Contract
of Year B. Since Respondent could not complete the commitments of Year
A, we would like you to give us a clear explanation if Respondent will not
be able to perform Contract of Year B.
Thanks for your attention / Best regards, Ms. Y’
Mr. X replied on 28 November Year A stating:
‘From: Mr. X - Sent: 28 November Year A 3:20 PM
To: Ms. Y
Cc: Ms. Z
Subject: Re: Respondent / Year A + Year B
Dear Ms. Y,
With reference to your e-mail message dated 25 November, please be
noted that, at this moment, we are unable to make a commitment regard¬
ing the quantity as well as loading period to be shipped next year since
Production Manager can not give me a clear picture of production plan for
Year B. However, we will try our best to inform you soonest when things
turn out.
Thanks for your kind understanding and very sorry for any inconve¬
niences.
Yours truly, Mr. X’
[52] “Mr. X’s reply avoids Ms. Y’s question regarding the balance quantity
remaining to be delivered under the Year A Contract. As to whether the
Respondent will be able to perform the Year B Contract Mr. X again alludes
to production problems. There can be no question that, as at 28 November

n

Year A, there was no basis for suggesting that the Claimant could be considered to
be in breach of the Year B Contract.
[53] “In his witness statement Mr. X states that in light of Claimant’s persis¬
tent failure to open letters of credit in the second half of Year A, he was very
doubtful that Claimant would fulfil its obligations under the Year B Contract.
He also said that
Tn light of Claimant’s numerous breaches of the Year A Contract by not

opening letters of credit pursuant to payment terms in Clause 5,
Respondent treated all the Contracts as repudiated by Claimant. Clearly
\
■
Claimant was not sincere in its orders of the products and I had given up
"i
hope that it would fulfil the remainder of the Year A Contract or the Year B
Contract and Year C Contract at all. I treated the Contracts as repudiated
by Claimant since the end of Year A because Claimant did not send any
LC application or open the letters of credit pursuant to Clause 5 of the
Contracts.’
According to the Respondent’s Swiss Law expert, Dr. S, even if the Claimant
had been in breach of the Year A Contract, the Respondent would not have been
able to rely on such a breach to terminate the Year B and Year C Contracts.
[54] "The Claimant sent the following facsimile to the Respondent on 4
December Year A:
‘Re: Contract for Year A

In respect to our contract of Year A, we had performed 178,387 m[etric]
tons of the product until May Year A.
Our Contract was signed on 6 December Year A-l for 280,000 mtons.
Since May Year A, we have been requesting stem dates in order to perform
remaining quantity of our Contract. Although all our stem dates have been
rejected up to today by stating production breakdowns at the plant, we
have been observing the product and bulk product deliveries in the market
which are originating from plant.
Considering that we hold the same quantity contracted for Year B and
Year C, you will understand that we are concerned by the discontinuation
of our co-operation. We would like to receive your views about your
company’s performance for the contracted product deliveries to our
company.
Therefore, as Claimant does not want to interrupt its cordial co¬
operation with you, we request you to transmit your kind reply with a
proposal for this Year A in accordance with the Contract within fifteen
calendar days from the date of the present letter.

We look forward to receiving your favorable reply in order to continue

our cooperation.’
The Respondent did not reply to the Claimant’s 4 December Year A facsimile.
[55] “The Respondent did not deliver any quantities of the product under the
Year B Contract notwithstanding the Claimant’s requests for laycans to be
agreed. In its written submissions the Respondent states that although the
Claimant made several proposals for laycan periods it never provided the
Respondent with a letter of credit pursuant to the Oral Agreement or clause
5 of the Year B Contract. In the light of the Tribunal’s findings above that there
was no Oral Agreement and that the Claimant was not obliged to open a letter of
credit before any laycan was agreed, this submission is bereft of substance and, in
any event, flies in the face of the reason given in Mr. X’s witness statement
referred to above viz. that he had already formed an intention by the end of
Year A to treat and did treat the Year B and Year C Contracts as repudiated.
[56] “By its letter dated 1 April Year C to the Respondent the Claimant’s
solicitors, inter alia, made a claim on behalf of the Claimant for the recovery
of losses said to have been sustained by reason of the Respondent’s breaches of
the Year A and Year B Contracts and inquired of the Respondent whether it
intended to fulfil its Year C Contract obligations. The Respondent did not reply
to the Claimant’s solicitor’s letter.
[57] “In these circumstances Mr. X’s statement in his witness statement that
Claimant never took delivery of any the product pursuant to Year B and Year C
Contracts and the Respondent’s submission that in Year C the Claimant never
proposed any laycan period nor placed any orders for the product pursuant to
the Year C Contract are nothing short of facetious.
[58] “It behoves the Tribunal to deal with Mr. X’s allegation in his witness
statement that he had a telephone conversation with one Mr. T of Claimant’s
Singapore office during which, inter alia, Mr. T is said to have acknowledged
that the Contracts had been treated as terminated by the parties. For the rea¬
sons discussed at length above the Tribunal has every reason to treat Mr. X’s
evidence with the utmost caution. Be that as it may, the Tribunal is unable to
understand:
(i) what legal effect this supposed ‘acknowledgement’ in mid-Year B would
have had given that Mr. X’s own evidence was that at the end of Year A he had
already treated the Year B and Year C Contracts as terminated; and (ii) why the
Respondent did not inform the Claimant of this alleged telephone conversation
between May Year B, when it was supposed to have taken place, and February
Year C when Mr. X served his witness statement.
[59] “In all the circumstances, in relation to issues 3 and 4 the Tribunal is
satisfied and finds that

(i) the Claimant had not breached any obligations under the Contracts (save
for despatch monies discussed below) and
(ii) the Respondent was in breach:
(a) of the Year A Contract by failing to deliver to the Claimant

101,612.63 MT of the product;
(b) of the Year B Contract by failing to deliver to the Claimant 280,000
MT of the product; and
(c) of the Year C Contract by failing to deliver to the Claimant 280,000
MT of the product.”
'•i:
■
III. LOSS AND DAMAGE
1. Despatch Money
v,_
[60] “It will be convenient at this stage to deal with the Respondent’s
Counterclaim for despatch monies earned under the Year A Contract and
issue 2: does the Tribunal have jurisdiction to hear and determine the
Respondent’s Counterclaim for despatch money of US$ 19,670.00 relating to
spot sales contracts in Year A-l?
[61] “In its closing submissions the Respondent confirmed that it was not
pursuing this claim for despatch money said to have been earned in Year A-l.
The Respondent accepts that this claim falls outside the arbitration clause of the
Contracts. The Tribunal finds accordingly.
[62] “In relation to the Year A Contract, the Tribunal has found that the M/
VFIVE shipment formed part of the deliveries under the Year A Contract. The
Respondent is therefore entitled to the despatch money of US$ 26,402.28
earned on this shipment and $ 918.50 being interest thereon computed at
5% per annum (for the reasons set out [at [111]-[112]] below) from 23 April
Year A until 31 December Year A. The Claimant also did not challenge Mr. X’s
computation of despatch money earned in the other Year A shipments. Eor
the M/V ONE Shipment the Respondent is entitled to despatch money of
US$ 2,829.40 and $ 110.00 being interest thereon computed at 5% per
annum from 20 March Year A until 31 December Year A. For the M/V
FOUR Shipment the Respondent is entitled to despatch money of US$
6,416.40 and $ 204.50 being interest thereon computed at 5% per annum
from 12 May Year A until 31 December Year A.
[63] “The Tribunal therefore finds that despatch monies and interest thereon
totalling US$ 36,641.30 are due from the Claimant to the Respondent. In his
closing submissions counsel for the Respondent submitted that Respondent
should be entitled to set off any despatch monies found to be owing by

Claimant to Respondent against any damages that may be found to be payable

by Respondent to Claimant. The Tribunal agrees.”
2. Claimant's Substitution Purchases
[64] “Clause 13 of the Contracts provides for the application of ‘Swiss internal
law’ to the Contracts. The parties have called expert witnesses to testify as to the
applicability of Swiss law in this Arbitration. Originally, the meaning and appli¬
cation of the phrase ‘Swiss internal law’ in the Contracts gave rise to some
differences of opinion between Prof. M, the Claimant’s expert, and Dr. S, the
Respondent’s expert; Prof. M opining that this referenced Swiss domestic law,
consisting of primarily the Swiss Code of Obligations (the ‘SCO’) and the Swiss
Civil Code (the ‘SCC’), with Dr. S contending that the United Nations
Convention on Contracts for the International Sale of Goods (the ‘CISG’)
applied as an ‘integral part of Swiss law’ and that the reference to‘Swiss internal
law' only results in an ‘exclusion of the provisions of Swiss private international
law’.
[65] “However, in the course of the Arbitration, the parties’ experts met and
agreed that there were no significant differences between either regime based on
its understanding of the facts. It was thus agreed that both experts would present
the issues on the basis of both regimes (i.e. the SCO/SCC and the CISG) and
that there would be no need for the issue of which regime to apply to be decided
by the Tribunal.
[66] "By reason of the Respondent’s breaches of its obligations under the
Contracts, the Claimant proceeded to make substitution purchases of the prod¬
uct. In contracts for the commercial sale of goods, the position under Swiss
internal law as set out in Prof. M’s expert report is that the Claimant (as
buyer) is entitled, in the event of default by the seller (the Respondent), to
make a substitution purchase for an amount up to the quantity for which the
seller is in default and thereafter to request compensation for the difference
between the agreed purchase price of the undelivered goods and the price he
had to pay in good faith for the substitution purchase. The same rule applies
under the CISG Art. 75. This forms the basis of the Claimant’s claims in this
Arbitration. Hence, the Claimant need only show: (i) default of the Respondent
(as seller); (ii) performance of the substitution purchases; and (iii) that the sub¬
stitution purchases were performed in good faith (SCO Art. 191(2)) or in a
reasonable manner (CISG Art. 75).
[67] “Ms. Y and Mr. F gave extensive evidence on the details of the Claimant’s
substitution purchases and the circumstances under which these purchases had
to be and were made. These witnesses also produced contracts, invoices, ship¬
ping and other documents relating to the substitution purchases. The Claimant’s

V... . ¿i-.-:-:-: _ iv35/2
I
witnesses evidence that the Claimant required the entire 280,000 metric tonnes
of the product which they were entitled to purchase from the Respondent under
each of the Year A, Year B and Year C Contracts to meet the needs of its pla nts
during that period and that the Claimant had no alternative but to make various
substitution purchases of the product to meet such needs was not seriously
challenged. Due to the higher FOB price per metric tonne of the product pur¬
chased from the alternative suppliers, the Claimant says it made a total loss of
US$ 3,370,060.12. In view of the Tribunal’s findings above that the M/V FIVE
shipment is to count as part of the total quantity delivered under the Year A
Contract, the substitution purchases said to have been made by the Claimant
must be reduced by the amount of that shipment.
;ÿ*
[68] “The Respondent sought to attack the Claimant’s quantification of its
:'L losses on various grounds some of which were not pleaded or even stated in its
c ■■
witness statements and they surfaced in the course of the Respondent’s cross-
examination of Mr. F and Ms. Y. In its closing submissions the Respondent
confirmed that it was relying on three grounds:
‘Respondent’s case on the quantum of damages it owes to Claimant consists

of three submissions made in the alternative. First, Respondent submits that
by failing to explain the large discrepancy between its estimate of damages
in April Year C and the damages now claimed in this arbitration, Claimant
has breached its good faith obligations and should not be allowed to recover
any damages.
Second and in the alternative, Claimant has overstated the price of the
product in Year A, Year B and Year C.
Third and in the alternative, if the Tribunal does not agree with the above
submissions, Respondent will show that the quantum of damages payable is
less than that sought by Claimant on account of the following four matters:
(i) The shipment to Country X onboard the M/V FIVE should have
formed part of the deliveries made under the Year A Contract;
(ii) The freight savings made by Claimant should be set off against the
losses incurred by Claimant in its substitute purchases;
(in) The increased costs of the four substitute deliveries in Year C resulting
from the termination of the contract made between Company ABC
and the Claimant should not be claimed against Respondent; and,
(iv) The commissions paid to agents for substitute contracts should not be
counted against Respondent.’
[69] “The Respondent’s first ground is without merit. Ms. Y’s evidence, which
the Tribunal accepts, was that when the Claimant’s claim was first formulated in
!
;
Year C she had not applied her mind properly to the computation of losses
prepared by her office and provided to the Claimant’s solicitors. Errors may
have been made and certain transactions wrongly included or inadvertendy
omitted. It was only when the Statement of Case in this arbitration was being
prepared that she and other officers from the Claimant gave thorough consid¬
eration to the actual losses suffered by the Claimant.
[70] “The Tribunal is satisfied not only that any ‘discrepancy’ has been
explained but also that the evidence substantiating the fact that the substitution
purchases were made after the Respondent had breached the Year A Contract is
overwhelming.
[71] “Under Swiss internal law a general principle is that an aggrieved party
has a duty to take all reasonable measures to mitigate against its losses
(Scbadenminderungspflicht/Schadensbegrenzungspflicht). The Claimant relies
on SCO Art. 191(2) which sets out the standard of mitigation required of a
buyer in commercial/sale contracts. Art. 191(2) states:
‘In commercial transactions, the buyer may claim as damages the difference
between the purchase price of the undelivered object of the purchase and
the price he had to pay in good faith for that replacement product.’
[72] “Prof. M opined that under the SCO, the good faith requirement means
that the substitution purchases are to be made in a reasonable manner, i.e.: (i) at a
reasonable price in line with the market conditions; (ii) within a reasonable time
upon waiving the seller’s performance; and (iii) at a reasonable place given the
type of goods at stake.
[73] "Dr. S does not disagree with this proposition. The standard of mitigation
required under the CISG is set out in Art. 75 which states that substitution
purchases be made ‘in a reasonable manner and within a reasonable time after
avoidance’. The duty and standard of mitigation is also expressly required under
CISG An. 77 which states
‘a party who relies on a breach of contract must take such measures as are
reasonable in the circumstances to mitigate the loss
A buyer making a substitute purchase need only act reasonably in the cir¬
cumstances and ‘ought not to be obliged to carry out extensive investigations
as to how he can purchase the substitute goods on the most advantageous
terms’ (Schlechtriem/Schwenzer, Commentary on the UN Convention on
the International Sale of Goods (CISG), 2nd ed., 2005 on Art. 75 no. 6 at
page 777).

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[74] “In ICC Arbitration Case No. 8128 of 1995, the arbitral tribunal noted
that:
‘The buyer may claim the costs following from purchase of goods in
replacement as damages if the transaction is reasonable in conformity
with Art. 75 of the Convention. The buyer concludes such a contract if
he behaves as a careful and prudent businessman undertaking in this
purchase. The buyer who has to buy goods in replacement does not have
an obligation to conduct a deep investigation in order to get the most
advantageous goods. ... In the present circumstances, the price of the
purchase in replacement is reasonable in the sense of Art. 75 of the Con¬
+ vention. A purchase in replacement, which must be made in a very short
period of time so that the goods can be delivered to the client within the
terms of contract, justifies a price higher than that agreed upon when there
was enough time.’
[75] “The Respondent pleaded that the standard required of the Claimant in
mitigating its losses was to purchase ‘alternative supplies at reasonable prices’. It
further stated that ‘reasonable prices’ would refer to the ‘current market price at
the material time in Thailand or an equivalent market’. The prevailing market
price for the product exports from Thailand for Year A was in the range of US$
X+2 to US$ X+3 per metric tonne as evidenced by the following. ... For the
Year B, the market price for the product exports from Thailand was in the range
of US$ X+2.50 to US$ X+9 per metric tonne as evidenced by the
following. .. . The Respondent itself quoted the Claimant an export price of
US$ X+9 as at May Year B. For the Year C, the market price for the product
exports from Thailand was in the upper end of the range of US$ X+2.50 to US$
X+9 per metric tonne as evidenced by the following. .. . Further, the export
prices for the product from Thailand as set out above are also substantiated by:
(i) documentary evidence from various Thai and Indonesian suppliers;

(ii) evidence from independent industry publications as to the range of prices
in the Thailand export market; and
(iii) unchallenged evidence from Mr. W, an expert in the concerned industry,
that the prices of its substitute purchases of the product were in line with
the market conditions.
[76] “There was no evidence before the Tribunal to support the Respondent’s
contention that the market price of the product in Year B and Year C was US$ X
per metric tonne.

[77] “At the eleventh hour, after the commencement of the hearing the
Respondent sought the Tribunal’s leave to produce two invoices of sales of
the product in an attempt to show that the market price in Year A was about
US$ X or less. . . . Ms. Y’s evidence was that the first sale was made pursuant to
an existing contract which fixed the price of the product sales in Year A at US$
X-0.50 FOB Port V, Indonesia.The price for sale of the product through Port V,
Indonesia is cheaper also because the load port is unable to export large quan¬
tities due to the constraints of the loading conditions. Hence, the first sale was
only for 18,600 metric tonnes as opposed to a normal shipment size of about
40,000 metric tonnes. As for the second sale, Ms. Y explained that this is not
indicative of the prevailing export market price of the product because Port G,
like Port V, is not able to export large quantities of the product due to the
loading conditions.
(....)
[78] “The Respondent did not produce any invoices of or other documents
relating to its own sales in Year B and Year C to show that the prices at which it
was selling the product were nowhere near the prices at which the Claimant
bought its substitute supply of the product. The Claimant has invited the
Tribunal to draw the inference that if the Respondent had disclosed evidence
of its sales, such evidence will show that the prices at which the Respondent sold
the product in Year B and Year C were substantially higher than US$ X+0.50
and US$ X+l, and that the Respondent had intentionally breached the
Contracts with the Claimant to make a quick profit from the escalating prices
for the product.
[79] “The evidence as discussed above shows clearly that the prices Claimant
paid for its substitution purchases of the product in Year A, Year B and Year C
were in line with market prices. Indeed, in the Tribunal’s view there is merit in
the submission by Counsel for the Claimant that in all the circumstances clear
inferences can and should be drawn that the market prices in Thailand for export
of the product escalated rapidly since the end of Year A, that the Respondent
chose to sell the product to third parties at the substantially higher prices obtain¬
ing from the second half of Year A and that this was the real reason why the
Respondent disavowed its obligations under the Contracts. The Tribunal there¬
fore rejects the Respondent’s second ground of complaint about the Claimant’s
quantification of losses viz. that the Claimant had overstated the price of the
product in Year A, Year B and Year C.
[80] “As for the Respondent’s four matters constituting its third ground of
complaint about the quantification of the Claimant’s losses (see [at [68]] above),
the Tribunal has already dealt with the M/V FIVE shipment. As to the remaining
elements the Tribunal proposes to deal with elements (iii) (Company ABC) and
(iv) (agents’ commission) first before considering element (ii) (freight savings).

[81] “Mr. F testified that the contract the Claimant made with Company AB C
for the supply of the product was one of the substitution purchases to procure
the product to make up for those quantities of the product the Respondent failed
to provide under the Contracts. Mr. F also testified that the Company ABC
contract was mutually terminated towards the end of Year B for commercial
reasons but when questioned by Respondent’s counsel, he refused to expatiate
what these reasons were notwithstanding the Tribunal’s direction that he should
answer Counsel’s questions.
[82] “It is clear from Mr. F’s evidence that if the Company ABC contract had
not been terminated, the Claimant could and would have purchased the product
from Company ABC in the first half of Year C instead of making the first four
Year C purchases [from another company]. Claimant’s counsel submitted that
there is no basis to assume that there was any insidious motive to deliberately
terminate this contract.
[83] “In the Tribunal's view, this is beside the point. Having entered into the
Company ABC contract as a substitution purchase the Claimant has to explain
why it agreed with Company ABC to terminate it. In the absence of satisfactory
explanation, the Tribunal is of the view that Claimant has not discharged the
onus on it to show that the first four substitution purchases in Year C were made
in a reasonable manner.
[84] “In the circumstances the Tribunal is of the view that the Claimant’s
losses in respect of the first four substitute purchase shipments in Year C
would be: (i) for the first, second and fourth substitute purchases, the difference
between US$ X+l/- per mt (the FOB price under the Year C Contract) and the
FOB price under the Company ABC contract of US$ X+5; (ii) for the third
substitute purchase, the difference between US$ X+l/- per mt and the actual
FOB price of US$ X+3.46 paid for this shipment as this actual price was in fact
less than the Company ABC FOB price.
[85] “The Claimant paid its agents a commission of US$ 0.25 per mt for three
substitute purchase shipments made in Year A and six substitute purchase ship¬
ments in Year B. The agent involved in these six Year B shipments was the one who
facilitated the procurement of the Company ABC contract. The contract with this
agent provides that the agency services to be rendered would include services
ancillary to the main job of facilitating and procuring sales of the product to the
Claimant such as providing finished product market reports and price trends.
[86] “The Respondent submit that it ought not to be made to bear any part of
the commission paid by the Claimant or, alternatively, it should bear only half of
such commissions.
[87] “The Tribunal notes that the services provided by the Claimant’s agent
for the three substitute purchase shipments in Year A did not include any
ancillary services.

[88] “Counsel for the Claimant submitted that, on the evidence, the Claimant
would not have entered into any agency agreement requiring the payment of
agents’ commission but for the Respondent’s breaches of the Contracts and that,
for some [countries], it would have been quite difficult for the Claimant to
conclude contracts for the purchase of the product directly with producers
without the intercession of agents well placed to facilitate the making of such
contracts.
[89] “That may well be so but the Claimant has not attempted to demonstrate
to the Tribunal that the Claimant could not have entered into an agency agree¬
ment to procure the Company ABC Contract that either (i) did not call for the
provision of ancillary services or (ii) attributed discrete fees to the agent for the
different tasks of facilitating contracts and provision of ancillary services.
[90] “The Tribunal agrees with Counsel for the Respondent that the
Respondent should not have to bear the entire agency fee of US$ 0.25 per
MT in relation to the six Company ABC shipments in Year B. In the
Tribunal’s view an agency fee of US$ 0.15 per MT for each of these shipments
would be a fair amount.”
3. Freight Savings
[91] “The Claimant made eighteen substitution purchases. In fifteen of these

the freight paid by the Claimant was probably lower than the freight it would
have had to pay to transport the product from the Respondent, if the
Respondent had performed the Contracts. It is not entirely clear on the
evidence what the freight savings amount to. The Respondent submits that
these savings in freight were earnings made by the Claimant and such earnings
should be set off against the increased cost of the product paid by the Claimant
in the substitution purchases. The Respondent also submit that the victim of a
breach must be put into the situation in which the victim would have been had
the contract been performed and, consequently, when ascertaining the loss and
damage actually suffered by the Claimant, from the Claimant’s perspective,
both the losses arising from the increased product prices and increased freight
costs and any savings from reduced freight costs ought to be taken into
account.
[92] “The Respondent’s expert Dr. S testified that the principle of set-off
requires that the party arguing set-off must have a head of claim that can be
used against the opposing claim. Under Swiss law, this principle is confirmed by
Art. 120 of the SCO which states:
‘If two persons owe each other a sum of money . . . each may set off his
obligation against his claim, provided both claims are due.’
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Thus it would appear that the Respondent cannot at Swiss law seek to set off any
savings in freight made by the Claimant against the Claimant’s claim for
damages arising from substitution purchases, because the Respondent must
first establish a head of claim for those freight savings before this can be set
off against the opposing claim. The Respondent has not asserted any claim or
cause of action in respect of any such freight savings and it has not provided any
evidence of the same.
[93] “Dr. S also testified that there is no basis under Swiss law for profits earned
by a defaulting party to be claimed by the injured or innocent party. Thus, even if
the Respondent, the defaulting party, were shown to have profited from its breach
V of the Contracts (e.g., by selling the product to third parties at a profit), the
X Claimant has no basis to claim against the Respondent for a disgorgement of
X: such profit. Since the savings on freight, being earnings or profits made by the
Claimant, are not different in principle from any profits made by the Respondent
on its sales to third parties of the product that should have been shipped to the
Claimant under the Contracts, then it seems to the Tribunal the Respondent
ought not to be entitled to make a claim against the Claimant, the innocent
party, to effectively disgorge its earnings made by way of freight savings.
[94] “Under the SCO, in the case of commercial sales transactions, the measure
of damages has been expressly set out under Art. 191(2) SCO to be ‘the
difference between the purchase price of the undelivered object of the purchase
and the price [the buyer] had to pay in good faith for replacement’. In other
words, unlike in the case of the general rule on torts (Art. 41 SCO) and the
general rule on breaches of contract (Art. 97 SCO), where the concept of damage
has not been defined by the legislature, Art. 191(2) SCO expressly sets out how
the damage is to be computed.
[95] “Arts. 74 to 76 of the CISG provide as follows:
‘74. Damages for breach of contract by one party consist of a sum equal to
the loss, including loss of profit, suffered by the other party as a conse¬
quence of the breach. Such damages may not exceed the loss which the
party in breach foresaw or ought to have foreseen at the time of the con¬
clusion of the contract, in the light of the facts and matters of which he then
knew or ought to have known, as a possible consequence of the breach of
contract.
75. If the contract is avoided and if, in a reasonable manner and within a
reasonable time after avoidance, the buyer has bought goods in replacement
or the seller has resold the goods, the party claiming damages may recover
the difference between the contract price and the price in the substitute
transaction as well as any further damages recoverable under article 74.

76 (1). If the contract is avoided and there is a current price for the goods,
the party claiming damages may, if he has not made a purchase or resale
under article 75, recover the difference between the price fixed by the
contract and the current price at the time of avoidance as well as any further
damages recoverable under article 74. If however, the party claiming
damages has avoided the contract after taking over the goods, the current
price at the time of such taking over shall be applied instead of the current
price at the time of avoidance.
(2). For the purposes of the preceding paragraph, the current price is the
price prevailing at the place where delivery of the goods should have been
made or, if there is no current price at that place, the price at such other
place as serves as a reasonable substitute, making due allowance for differ¬
ences in the cost of transporting the goods.’
[96] “Counsel for the Respondent suggested to Prof. M that under these three
CISG Articles, in computing loss one ought to take into account not only any
difference in the price of the goods but also any difference in transportation
costs. Prof. M disagreed and Respondent’s counsel submitted that Prof. M’s
answers were unconvincing. The Tribunal disagrees.
[97] “Art. 75 expressly provides in the case of a buyer who has entered into a
substitution purchase, that (i) the measure of damages, in relation to price of the
goods, is the difference between the contract price and the price in the substitu¬
tion purchase and that (ii) the buyer may recover any further damages recov¬
erable under Art. 74.
[98] “Art. 76 on the other hand is concerned with the situation where a buyer
has not made a substitution purchase. In such a situation, the buyer may also
recover any further damage recoverable under Art. 74 but, in relation to the
price of the goods, the measure of damages is provided to be the difference
between the contract price and the ‘current price’ either at the time of avoidance
of the contract or, if avoidance of the contract occurs after the buyer has taken
delivery of the goods, at the time of taking over of the goods. Art. 76(2) sets out a
definition of the ‘current price’ referred to in Art. 76(1) and provides that in
ascertaining the ‘current price’, due allowance be made for differences in the cost
of transporting the goods.
[99] “Thus, ‘current price’ (or any necessary allowance for differences in the
cost of transporting the goods in determining current price) is not at all relevant
to the express measure of damages provided in Art. 75. The framers of the CISG
could have included in the Art. 75 measure of damages the need to make
allowance for differences in the cost of transporting goods along the lines
they did in Art. 76(2). They did not. As it stands, therefore, the measure of
damages expressed in Art. 75 is the full measure and not just a prima facie one.

'ISJSA?
S
*

[100] “However, even if the Art. 75 measure of damages is only a pri ma facie
one, there are learned commentaries on the CISG thac support the conclusion
that freight expenses should not form part of the reckoning of losses:
(i) ‘[T|he buyer has no grounds to complain if the seller makes a profit from a
substitute transaction; such a profit cannot be offset against additional
damages claimed by the seller. The same principle applies to a profit
made by the buyer when purchasing goods in a substitute transaction.’1
(ii) ‘If a party makes a profit on the substitution transaction, he is not obliged
to return such profit or to impute it to any other damages.’2
(iii) ‘Advantages gained are not to be taken into account if there is no ade quate
connection with the loss and [they] are related to the injured party’s own
expenditure (e.g., Insurance benefits); it would be contrary to the principle
of good faith (Art. 7(1)) for the liable party to be exempted by them.’3
[101] “Any international sale of goods on an FOB basis would involve

insurance and transportation contracts and costs as discrete elements. If
‘insurance benefits’ are not to be taken into account in computing losses the
Tribunal cannot see how freight would have to be taken into account.
[102] “A proper analysis of the evidence of the Respondent’s Swiss Law
expert, Dr. S, discloses that he also agrees with this conclusion. The shipments
made or that would have been made under the Contracts were or would have
been on an FOB basis. The definition of FOB under the INCOTERMS 1990
(which applies by virtue of clause 13 of the Contracts) is:
‘“Free on Board” means that the seller fullfils his obligation to deliver when
the goods have passed over the ship’s rail at the named port of shipment.
This means that the buyer has to bear all costs and risks of loss of or damage
to the goods from that point. The FOB term requires the seller to clear the
goods for export.’
All the shipments made in relation to the substitution purchases were also on an
FOB basis. Dr. S, in his evidence, stated that any increase in freight rate is a risk
borne solely by a buyer. Dr. S opined that where a seller had properly performed
1. “Schlechtriem/Schwenzer, Commentary on the UN Convention on the International Sale of

Goods (CISG), 2005 on Art. 75 no. 4 at page 775).”
2. "Brunner, CISG, 2004, Art. 75 no. 7).”
3. “Schlechtriem/Schwenzer, Commentary on the UN Convention on the International Sale of
Goods (CISG), 2005 on Art. 74 no. 32 ac page 762-763)”

a sales contract a buyer would have no claim against the seller if transportation
costs increase. By parity of reasoning, if the seller breaches a sales contract, any
decrease in transportation costs must also be of no concern to the defaulting
seller.
[103] “Both parties’ experts were in agreement that where there are separate
contracts there is no room for any set-off of benefits incurred under one contract
against losses incurred in another. Prof. M at para. 74 of his Expert Report on
Swiss law (the ‘Expert Report of Prof. M’) opines that:
‘There would neither be any room for a set-off, for each substitution
purchase, between the various categories of losses/benefits, for instance a
possible loss on freight and benefit on FOB price of a given substitution
purchase.’
Dr. S was questioned by Counsel for the Claimant and the Tribunal on this
issue:
‘Q: Dr. S, next I would like to examine with you the principle regarding
the computation of damages. Would you agree that there is a general
principle of Swiss law, sir, that if there has been a breach of a sale contract,
and an innocent buyer has to make a substitution purchase, at a better
price than the agreed contractual price, then the buyer is entitled in
principle to keep the benefit of the substitution purchase, and we
would say in this case buyer’s damages would be nominal, there would
be no damages, it would be zero, but being the innocent party, he is not
obliged to return or account for the benefit, for any benefit he made to the
seller. And I think we have asserted, Prof. M has asserted, that this arises
out of the principle that the innocent buyer cannot somehow be consid¬
ered as the agent of the seller. Would you agree with that as a general
principle?
A: Yes, as a general principle as you have expressed it, yes.
Q: Now, I am taking two contracts and they are two contracts. You make
two substitution purchases pursuant to both these contracts, but then you
decide to sue in one suit, because it’s the same seller, so you list in your suit,
these two contracts, and I suppose the losses you make, and our contention
is that you would make a loss on the first contract of 50 dollars, and in
relation to the second contract, you would not make a loss, so the loss
would be zero. So you would claim as damages 50 dollars being the loss
that you make under the first contract?
A: Yes, if we are - we have to distinguish a claim made in a procedure and
the contract out of which a claim, a particular claim is derived. So, if - the

damages must be assessed according to a certain number of facts and these
are the damages arising out of a particular contract, so we have contract A
where there is a damage. And then in your case, there is a different contract
where there is no damage.
Q: Contract B, yes.
A: And then, there is a claim which deals with damages so I assume the
claim is based on the first contract.
Q: Yes.
A: In that situation, where we are talking about two different contracts,
the respondent cannot derive rights from the second contract because he is
%
not entitled to the benefit and he cannot compensate, therefore these
rights against or set off such rights which he does not have against an
obligation he might have out of the first contract to pay damages, because
he just does not have the right out of the second contract. (Emphasis
added)
Q: That’s correct.
Co-Arbitrator: Could I just ash you this question, Dr. S. Supposing you
have a seller and a buyer and the seller enters into two contracts with the
buyer, one contract is to sell him 1,000 tonnes of grapes at $100 a tonne, and
the other contract is to sell him 1,000 tonnes of apples at $100 a tonne. The
seller then defaults on the contract, on both contracts, so the buyer has to go
elsewhere to buy. The price of apples goes up, but the price of grapes goes
down, and apples go up by $50 a tonne, grapes go down by $50 a tonne. So
the buyer loses $50 or has to pay an extra $50 per tonne in respect of the
apple contract, but has to pay $50 a tonne less in respect of the grape con¬
tract. Now, if you add the two together, his position remains the same,
because he makes on one contract, he loses on the other. Does he have to
set off the gain he receives on one against the loss he suffers on the other, or is
he entitled to tell the seller, ‘Look, I had to pay $50 a tonne more on the
apple contract, so you have to compensate me for that. As far as the grape
contract is concerned, I didn’t have to pay anything more for the grapes, so
you don’t have to compensate me on that. But I don’t have to give you
credit, I don’t have to set off the benefit that I have got from the grape
contract against that.
A: My answer would be, if we are dealing with two separate contracts -
Co-Arbitrator: I’m talking about two separate contracts.
A: And it’s not one contract where in the same contract one has to sell
grapes and later -1mean, the situation of successive deliveries. So if it is two
different contracts, then you have to determine the damage in each contract,
and in the first contract, there is a damage, and in the second, there is none
and if there is a profit, what the doctrine says in this separate contract is that

you can keep it. So if you deal with separate contracts, you cannot set off
because if- the other party cannot set off, because to set off you must have a
—
claim, a sort of that is the principle of set-off and since in the other
contract, the other party is entitled to keep the profit, the other party
does not have the claim to this money because it belongs to the others
and it cannot set off something he possesses, a claim he possesses against
the damages for which he sued in the other contract, but that is because
there are two different contracts. When we have one contract then in my
mind, there is a totally different situation.’
[104] “It would follow that it is a principle of Swiss law that where an innocent
party makes a benefit, he need not disgorge or account for the same, and there
will be no room for such benefit to be set off against or be imputed to the losses
incurred in respect of another contract. This is so even where: (i) the contracting
parties are the same in both cases; i.e. the same parties entering into two separate
contracts; and (ii) the subject matter of the contracts is the same in both cases;
e.g., the supply of the product.
[105] “Thus it is common ground that under Swiss law:
(i) An innocent party may keep any benefit he may have obtained in a sub¬
stitution transaction (which arose due to the defaulting party’s breach of
contract) without having to set off / account for any part of it to the
defaulting party; and
(ii) Where there is a breach of two separate contracts between the same parties,
and there is a loss incurred on one, with a benefit obtained on another,
consistent with the principle enunciated above, the innocent party can
claim under the contract on which he made a loss, and does not need to
set off any of the benefit obtained in the other contracts.
[106] “Counsel for the Claimant submitted that in the context of contracts for
the international sale and supply of goods, at least five separate and distinct
contractual relationships are likely to be present:
(i) the supply contracts between the vendor and purchaser;

(ii) the substitution purchase contracts between the purchaser and various
third-party suppliers;
(iii) the contracts of affreightment between the purchaser and various third-
party shippers;
(iv) the contracts of insurance between the purchaser and various third-party
insurers; and
(v) the resale contracts between the purchaser and the subpurchasers.

[107] "Counsel submitted further that all of these contracts could thus give
rise to the potential for losses or savings that could have been incurred as a result
of one party’s breach of the contracts, but that does not mean that one would go
into each contract to try and arrive at a ‘net’ position. Counsel asked theoret¬
ically: should the Tribunal look into the difference in insurance premiums
between the original and substitute purchases? Should they also inquire as to
whether the Claimant’s resale contracts (of finished product, as well as the
product) have been affected by the failure in delivery, and to what extent?
Yet the Respondent would have this Tribunal make an isolated inquiry into
freight costs, without looking into other, equally relevant, items.
[108] “In the opinion of the Tribunal, applying the principles of Swiss Law
discussed above, in an FOB contract:
(i) where a seller is in default and a buyer, in making a substitution purchase,

pays less for the substitute goods purchased and for the transportation of
such substitute goods then the buyer will not have to disgorge or account
for earnings or profits made either
(a) by way of having paid a lesser price for substitute goods or

(b) by way of having paid lower transportation costs.
(ii) It seems to the Tribunal that it must follow that if an innocent buyer incurs
a loss because of higher freight costs only and, assuming the buyer paid a
lower price for substitute goods then any profits he earned in paying a
lower price for the substitute goods purchased cannot be taken into
account to reduce losses.
(iii) In the view of the Tribunal the obverse must also follow: where an
innocent buyer incurs a loss because of higher prices he had to pay for
substitute goods but if he makes savings in freight then such freight sav¬
ings or profits also cannot be taken into account to reduce the buyer’s
losses.
[109] "In these circumstances, the Tribunal concludes that the Claimant’s
claim for damages, being the difference between the prices for the product
provided under the Contracts and the higher prices they paid for the product
on the substitution purchases, should not be reduced by any savings in freight
costs that may have been made.
[110] “In the premises the Tribunal computes and finds the Claimant’s losses
to be as follows: (table omitted). Total loss for Year A to Year C (US$
3,000,792.49).”

IV. INTEREST
[111] “SCO Art. 104(1) provides that:
cIf an obligor is in default as to the payment of a financial debt, he shall pay

default interest at five percent per annum, even if the contract provides for a
lower rate.’
[112] “In the case of JdT 2001 A I 289, before the Swiss Federal Tribunal, a
dispute arose in relation to a letter of credit issued by a Saudi Arabian bank in
favour of a Lebanese company. The governing law was Saudi Arabian law. The
Swiss Federal Tribunal held that as the dispute was governed by Saudi Arabian
law, the issue of interest had to be determined according to Saudi Arabian law as
the substantive law applicable to the merits of the case. The substantive law
would govern the existence, scope and effects of the obligations between the
parties. This includes the consequences of non-performance of the laid obliga¬
tions, such as damages payable and interest. The Swiss Federal Tribunal denied
the plaintiff’s claim for interest as Saudi Arabian law did not award interest.
[113] “The Claimant has asked for interest to accrue from the time it made
payments for its substitution purchases. However the evidence of its Swiss Law
expert, Prof. M, is clear: default interest will run from the expiry of the time
allowed to the Respondent to perform and, in relation the Year A substitution
purchases, default interest would only accrue from the end of Year A. The
Tribunal has no reason to disagree with Prof. M’s opinion in this regard. It
would follow that default interest for Year B and Year C will only be payable
from the 31 March, 30 June and 31 December of each year in respect of substitute
purchases made by the Claimant before each of these dates.
[114] “The Tribunal therefore computes and finds the interest payable by the
Respondent to the Claimant to be as follows:
Year A
- Interest on US$ 257,211.00 (being the difference between US$ 293,852.30
and US$ 36,641.30 in respect of despatch monies and interest found by the
Tribunal to be payable by the Claimant to Respondent per [[60]-[63]] above
computed at 5% per annum from 31 December Year A until final payment.
Year B
- Interest on US$ 300,012.00 (being losses on substitute purchase shipment 1
in Year B) at 5% per annum from 31 March Year B until final payment;

- Interest on US$ 365,792.25 (being losses on substitute purchase shipments 2

and 3 in Year B) at 5% per annum from 30 June Year B until final payment;
- Interest on US$ 763,274.25 (being losses on substitute purchase shipments 3 to
7 in Year B) at 5% per annum from 31 December Year B until final payment.
YearC
and 2 in Year C) at 5% per annum from 31 Year C until final payment;
and 4 in Year C) at 5% per annum from 30 June Year C until final payment;
- Interest on US$ 694,257.46 (being losses on substitute purchase shipments 5,
6 and 7 in Year C at 5% per annum from 31 December Year C until final
payment.”
V. COSTS
[115] “As for costs and expenses arising out of this arbitration, Art. 31.3 of the
ICC Rules of Arbitration provides for the Tribunal to decide which party shall
bear them and in what proportion and to fix the costs of the arbitration. In
coming to its decision on which party should bear the costs or what proportion
of the costs should be recoverable, the Tribunal follows the general principle
that costs should normally follow the event viz. the party that prevails should
normally be entitled to the costs incurred.
[116] “The Claimant has succeeded on liability and virtually entirely on
quantum. The Respondent complains that the Claimant employed five lawyers
to represent it in this reference and that this number was excessive. The Tribunal
rejects this submission. First, the Respondent itself employed two (or perhaps
even three) Singapore lawyers to represent it and two Thai lawyers to assist in
the conduct of the defence and one of the Thai lawyers attended the hearings in
Singapore. Second, the Respondent requested that this dispute be submitted for
determination to a panel of three arbitrators,.after having first agreed to have the
dispute determined by a sole arbitrator. This signifies that the Respondent rec¬
ognized that the disputes involved issues of law and fact warranting a three-
member tribunal to hear and determine them.
[117] “One issue on which the Claimant did not succeed (despatch monies
payable under the Year A Contract) and one on which it did not succeed entirely
(commission payable to the agent who procured the Company ABC Contract)
did not take up that much time that would warrant a significant reduction in the
amount of costs recoverable by the Claimant. In the Tribunal’s view the
Claimant should have ninety percent of its legal costs.

[118] "The Claimant claims the following costs: (table partly omitted)
Total legal costs (US$) 420,000.00
Total Disbursements (US$) 212,755.33
The Tribunal considers that a sum of US$ 400,000.00 for costs of the Claimant’s
legal representation would be a reasonable sum. The Claimant is therefore enti¬
tled to legal costs of US$ 360,000.00.
[119] “The Tribunal has considered the items of disbursements claimed and
finds these to have been reasonably incurred and to be reasonable. The
Respondent has not challenged the Claimant’s computation of the conversion
into US dollars of the items of disbursements incurred in other currencies.
[120] "The advance on costs fixed by The ICC International Court of
Arbitration at US$ 240,000.00 has been paid by the parties in equal shares.
The Court fixed the costs of the arbitration at US$ 240,000.00 comprising: (i)
ICC administrative expenses at US$ 30,692.00 and (ii) the Tribunal’s fees and
expenses at US$ 209,308.00.
[121] “In relation to issue eight, the Tribunal finds that the Claimant is entitled
to costs and expenses arising out of this arbitration, including the ICC admin¬
istrative expenses, the fees and expenses of the Tribunal and reasonable attor¬
neys’ fees and disbursements incurred in and about this arbitration. The
Tribunal allows legal costs and disbursements recoverable by the Claimant at
US$ 572,755.33. The Respondent is to bear the costs of the arbitration fixed by
the Court at US$ 240,000.00 and the Respondent is to reimburse the Claimant
US$120,000.00 being the amount paid by the Claimant as its share of the advance
of costs fixed by the Court.”
VI. SUMMARY OF FINDINGS
[122] “The Tribunal’s decisions on the issues to be determined in this arbi¬

tration may be summarized as follows:
1. What were the parties’ obligations under the Contract?
(i) The Claimant was obliged to:
(a) nominate a vessel only after the parties had agreed a laycan;
(b) fix the vessel subject to the Respondent’s approval within one
working day after receipt of vessel nomination
(c) cause a letter of credit to be opened within seven days of the ves¬
sel’s arrival at the load port and

.... .IL.TÿZ

(ii) The Respondent was obliged to accept the Claimant’s requests for
laycan and for shipments of quantities of the product made in confor¬
mity with the Contracts and to make shipments of such quantities in
accordance with the terms of the Contract.
2. Does the Tribunal have jurisdiction to hear and determine the Respondent’s
counterclaim for despatch money of US$ 19,670.00 relating to spot sales
contracts in Year A-l ?
The Respondent agrees that the Tribunal has no jurisdiction and has with¬
drawn its claim for despatch money relating to spot sale contracts in Year A-l.
3. Have the Claimant or the Respondent or both, breached any obligations
r under the Contracts?
Both have breached.
4. If so, which obligations have been breached by the Claimant or the
Respondent or both?
(i) The Respondent breached its obligations to supply 101,612.63 MT of

the product under the Year A Contract and 280,000 MT of the product
under each of the Year B and Year C Contracts.
(ii) The Claimant breached its obligation under the Year A Contract to pay
despatch money and interest of US$ 36,641.30 to the Respondent.
5. (i) Has the Claimant suffered loss and damage in consequence of any breach
by the Respondent; and if so, (ii) What are the damages suffered by the
Claimant?
(i) Yes.
(ii) The damages suffered by the Claimant amount to US$ 3,000,792.49,
and after taking into account the despatch money and interest of US$
36,641.30 payable to the Respondent, the amount recoverable by the
Claimant is US$ 2,964,151.20.
6. (i) Has the Respondent suffered loss and damage in consequence of any
breach by the Claimant; and if so, (ii) What are the damages suffered by
the Respondent?
(i) Yes.
(ii) The damages suffered by the Respondent amount to US$ 36,641.40
being the despatch money and interest payable to it by the Claimant
under the Year A Contract and this amount has been applied to reduce
the amount recoverable by the Claimant.

7. Whether interest is recoverable by the Claimant or the Respondent, and if so,

on what basis?
Yes. Default interest computed at 5% per annum is recoverable under
Swiss Law, the law governing the Contracts.
8. Whether the Claimant or the Respondent is entitled to costs and expenses
arising out of this arbitration, including but not limited to reasonable attor¬
neys’ fees?
The Claimant is entitled to costs and expenses arising out of this arbitra¬
tion, including reasonable attorneys’ fees.
9. Whether the Claimant or the Respondent is entitled to any other relief?
Neither party has claimed other relief.”
(....)

üï:üI .— i.-:;-”
Parties: Claimant: Commodity trader (The Netherlands)

Respondent: Service company (France)
Place of
Subject matters: - applicable law to capacity of a corporation

- guarantee contract
- trade usages do not include good faith and apparent
authority
- good faith and apparent authority to conclude
contract
Summary
Respondent undertook to pay all expenses due by a third company to claim¬

ant under a related contract The parties had made a choice of applicable
law. However, as the parties' autonomy to choose the governing law does
not extend to the determination of the law applicable to the issue of a party’s
capacity and power to contract, the sole arbitrator determined the applicable
law to that issue. Noting a strong consensus for applying the lex societatis to a
corporation's capacity, he applied that law (in casu, French law). Under
French law, respondent’s undertaking was a “ lettre d'intention avec obli¬
gation de résultat” (a letter of intent creating an obligation to achieve a
specific result). A statutory provision of French law provides that such under¬
taking, if given by a corporation, must be authorized in advance by the
corporation's board of directors. As no such authorization had been given,
the agreement was unenforceable. The principles of good faith and apparent
authority did not change this conclusion, because (i) trade usages, though
they must be taken into account in international arbitration, neither include
the principles of good faith and apparent authority nor can supplant statu¬
tory provisions and (ii) good faith and apparent authority do not apply to
supplant or correct lex societatis in respect of the capacity of corporations in
the context of international arbitration. In any event, even applying these
principles there was no capacity in the present case, as apparent authority
i
requires that the other party be reasonably diligent. This was not the case
here as claimant had not made the necessary enquiries into respondent’s
capacity.
On 18 October of Year X, the Dutch commodity trader (Claimant) entered into

a Three-Party Agreement with two companies incorporated in non-European
Country Z: Company ABC and Company DEF, which was owned in part by
the French service company (Respondent). Company ABC operated a ware¬
house in Country Z; the Three-Party Agreement concerned the receipt, storage
and shipment of a certain commodity owned by Claimant (the goods) in and
from the warehouse. Company DEF agreed, under the Three-Party Agreement,
to certify receipt of the goods in the warehouse and take control over them for
Claimant, warrant the quantity and quality of the goods to Claimant and com¬
pensate Claimant for any and all costs and consequences that may result from
the wrongful release, loss or destruction of the goods. The Three-Party
Agreement provided that any dispute be decided by a competent court in
London.
On the same 18 October of Year X, Respondent sent a letter to Claimant (the
18 October Letter), in which it undertook to keep at least fifty-one percent of
the shares of Company DEF during the contract period and “see that [Company
DEF] fulfils its obligations” under the Three-Party Agreement. Respondent also
undertook to “pay all expenses” due by Company DEF for prejudices faced by
Claimant under the Three-Party Agreement. Respondent’s Board of Directors
did not issue a prior authorization for the 18 October Letter. The Letter
provided that French law applied to the relationship between the parties; it
also provided that any dispute be resolved by ICC arbitration in Paris.
A dispute arose between the parties when Company DEF failed to maintain
control over a consignment of the goods and deliver the consignment to
Claimant. Claimant commenced ICC arbitration against Respondent, seeking
compensation under the 18 October Letter for Company DEF’s breach of the
Three-Party Agreement.
By the present award, the Sole Arbitrator held that the 18 October Letter was
not enforceable against Respondent because it had not been authorized in
advance by Respondent’s Board of Directors as provided for under the appli¬
cable French law.
The Sole Arbitrator first determined the nature of the 18 October Letter
under French law, which governed the parties’ relationship. Respondent's
first two obligations under the Letter - to keep at least fifty-one percent of
the shares of Company DEF during the contract period and to see that
Company DEF fulfilled its obligations under the Three-Party Agreement -
corresponded undisputedly to a lettre d'intention, since they did not involve

■
%
any payment obligation. The parties disagreed, however, as to the nature (cau¬
tionnement, constituí or lettre d’intention ) of Respondent’s third undertaking -
to “pay all expenses” due by Company DEF for prejudices faced by Claimant
-
under the Three-Party Agreement on which Claimant’s claim for compensa¬
tion was based.
The Sole Arbitrator concluded that also the third undertaking was a lettre
d’intention under French law, since under both a cautionnement and a constituí a
guarantor undertakes to pay a specific debt in the event that the debtor fails to do
so - either by substituting for the debtor and paying the debt in its place (cau¬
tionnement) or by undertaking to pay an amount equal to a specific debt, whose
quantum can be specified by reference to the debtor’s principal obligation to pay
a sum of money (constituí). By contrast, a lettre d’intention is an undertaking by
a third party to compensate the creditor for the prejudices suffered as a result of
the debtor’s failure to perform an obligation. In the Sole Arbitrator’s opinion,
Respondent’s third undertaking under the 18 October Letter corresponded
exactly to the definition of a “ lettre d’intention”.
The Sole Arbitrator further held that Respondent’s third undertaking
amounted to an “obligation de résultat” (an obligation to achieve a specific
result) rather than an “ obligation de moyens” (a best efforts obligation). The
18 October Letter was therefore properly characterized as a “lettre d’intention
avec obligation de résultat ” under the applicable French law.
The Sole Arbitrator added, however, that this finding had a very limited
impact on the ultimate outcome of the arbitration, as all the above types of
undertakings are subject to the French statutory requirement for prior autho¬
rization by the Board of Directors, whose undisputed lack led the Sole
Arbitrator, as set out below, to conclude that the 18 October Letter was unen¬
forceable against Respondent.
The Sole Arbitrator first noted that while French substantive law applied to
the substance of the contract, the principle of party autonomy in the choice of
the governing law does not extend to the determination of the law applicable to
the issue of a party’s capacity and power to contract. The law applicable to such
issues is usually determined in accordance with the method used to determine
the law governing the contract in the absence of a choice by the parties. Under
both the ICC Rules and the French Code of Civil Procedure, where the parties
have not chosen the governing law the arbitral tribunal may determine that law
directly. It must also give reasons for its determination.
In the present case, the Sole Arbitrator noted that there is a strong consensus
in private international law that a corporation’s power to contract is governed by
the lex societatis, i.e., either the law of the corporation’s head office or the law
under which the corporation is organized. Here, the lex societatis was French
law in either case. The Sole Arbitrator therefore examined the issue of

Respondent’s capacity to enter into the 18 October Letter under French law,
and concluded that the 18 October Letter was not enforceable against
Respondent because it was not authorized by Respondent’s Board of Directors.
This finding was based on strict compliance with the relevant statutory provi¬
sions of French law. Claimant relied on the concept of “trade usages” to argue
that the strict rules which may apply to the powers of corporate representatives
under the lex societatis are considerably attenuated in international arbitration.
Claimant also suggested that international arbitrators may in any event have
recourse to substantive legal rules such as good faith, apparent authority and
estoppel.
The Sole Arbitrator disagreed. He held that the concept of trade usages in the
ICC Rules and the French CCP does not include substantive law principles
such as good faith, apparent authority and estoppel. Also, trade usages do not
constitute rules of law and cannot take precedence over the applicable law. Nor
do substantive principles such as good faith and apparent authority apply to
supplant or correct lex societatis in respect of the capacity of corporations in the
context of international arbitration. The Sole Arbitrator found that the arbitral
and court jurisprudence on which Claimant relied could be distinguished, inter
alia, because almost all decisions related to the enforceability or validity of
arbitration clauses, not the substantive contractual obligations of the parties.
While there is a strong consensus that the principles of good faith and apparent
authority provide a legal basis for upholding the validity of arbitration clauses,
it is equally clear that the French courts have not extended these principles to
other substantive contractual obligations of the parties, in particular to
guarantees.
In any event, the Sole Arbitrator found that good faith and apparent authority
would not provide a basis for holding that the 18 October Letter was enforceable
against Respondent. While the general principle of apparent authority is widely
recognized at the international level, it is also subject to an important limitation -
the other party must be reasonably diligent. Here, Claimant neither alleged nor
proved that it made enquiries regarding the authority of Mr. X, who signed for
Respondent, or regarding Respondent’s power to conclude the 18 October
Letter. The Sole Arbitrator added that the existence of specific legal require¬
ments for the enforceability of guarantees given by corporations - such as the
prior authorization of the Board of Directors - should not come as a complete
surprise to sophisticated commercial parties active in international trade, in
particular where the lex societatis of the corporation granting the guarantee is
the same as the substantive law governing the undertaking itself.
The Sole Arbitrator finally found that Claimant and Respondent should bear
the arbitration costs equally and each bear its own legal costs. He recognized the

%

current trend in favor of the principle of “costs follow the event”, but decided in
his discretion not to apply it here, reasoning that Claimant failed to meet the
standard of reasonable diligence and that, in turn, Respondent only questioned
the enforceability of the 18 October Letter after the commencement of the
arbitration.
Excerpt
I. JURISDICTION
;?•
[1] “The jurisdiction of the Sole Arbitrator is derived from the arbitration
agreement contained in the 18 October Letter from Respondent to Claimant,
which provides as follows:
‘Any dispute will be definitively solved according to the Arbitration Rules

of the International Chamber of Commerce (ICC) located in Paris by one
or three arbitrators duly nominated according to these Rules which is
accepted by the Parties.’
The Parties agree that the Sole Arbitrator has jurisdiction under this arbitration
agreement to decide issues relating to the 18 October Letter, including its
enforceability against Respondent.
[2] “There is, however, a dispute between the Parties on the scope of the Sole
Arbitrator’s jurisdiction under this arbitration agreement. Specifically,
Respondent argues that the Sole Arbitrator does not have jurisdiction to decide
on Claimant’s claims because this would necessarily require findings in respect
of Company DEF’s liability under the Three-Party Agreement.
[3] “For die reasons set forth below [at [19]-[55]], the Sole Arbitrator has
reached the conclusion that Claimant’s claims must be dismissed because the
18 October Letter is not enforceable against Respondent. As a result of this
finding on the merits, there is no need to rule on the jurisdictional objection
raised by Respondent.”
II. NATURE OF THE 18 OCTOBER LETTER
[4] “As a first step in deciding on the merits of this arbitration, it is necessary
to consider the proper legal characterization of the 18 October Letter. This
question of legal characterization requires a careful analysis of the precise nature
of Respondent’s obligations to Claimant.

[5] “It is common ground that Respondent’s first two undertakings in the 18
October Letter correspond to a 'lettre d'intention’ since they do not involve any
payment obligation:
‘We will keep at least 51% of the shares of Company DEF during the above
contract period;
We will see that the company fulfils its obligations under the execution of
these contracts and keeps the human, technical administrative and financial
means to do so. ...
’
[6] “Claimant’s claims for compensation in this arbitration are, however,

based primarily on Respondent’s third undertaking in the 18 October Letter,
which provides as follows:
‘We will pay all expenses due by [Company DEF] for prejudices faced by
Claimant under execution of the said contracts [the Three-Party Agree¬
ment].’
Claimant argues that this third undertaking is properly characterized as a ‘con¬

stituí ’ (or, alternatively, a ‘lettre d’intention avec obligation de résultat’) while
Respondent maintains that it amounts to a ‘cautionnement’.
[7] “It should be noted at the outset that the Parties rightly agree that the new
Livre IV: Des sûretés of the French Code civil, which came into force in March
2006 (Ordonnance No. 2006-346 of 23 March 2006), is not applicable to the 18
October Letter. This is because Art. 2 of the French Code civil makes clear that
such amendments do not have retroactive effect.
[8] “In any event, whether one applies the law before or after entry into force
of Livre IV: Des sûretés of the French Code civil, there is a fundamental
difference between the nature of ‘cautionnements’ and ‘constituís’, on one
hand, and ‘lettres d’intention’, on the other hand. In view of this fundamental
difference, it is evident that the 18 October Letter can only be properly char¬
acterized as a ‘lettre d’intention’ under French law.
[9] “In the case of both a ‘cautionnement’ and a ‘constitué, the guarantor
undertakes to pay a specific debt in the event that the debtor fails to do so:
'A “cautionnement” is an undertaking by the guarantor to substitute for the
debtor and pay a debt in its place.1 As shown by Art. 2013 (now Art. 2290) of the
French Code civil, a ‘cautionnement’ is not an open-ended indemnity. Rather, it
1. P. Simler, Cautionnement et garanties autonomes, 3rd ed. (2002: Litec) at para. 31, pp. 29-30.”

-- -----
"1C -.CT

is an undertaking to pay a specific money debt and it can never exceed the
amount of that debt:
‘Art. 2013 Le cautionnement ne peut excéder ce qui est dû par le débiteur, ni

être contracté sous des conditions plus onéreuses.
Le cautionnement qui excède la dette, ou qui est contracté sous des con¬
ditions plus onéreuses n'est point nul: il est seulement réductible à la mesure
de l'obligation principale.'
[10] “Similarly, a 'constituí' is an undertaking to pay an amount equal to a

specific debt. A‘constituí’ is not an open-ended indemnity. It must be possible to
verify the existence of the debt and the quantum of the debt by reference to the
debtor’s principal obligation to pay a sum of money. In this regard, Professor
Simler, one of the leading French commentators on this subject, has observed:2
‘[L]e constituant s'oblige à payer, non la dette même du débiteur garanti,

mais la même dette. ... Le montant de cette dette (du débiteur principal)
reste l’élément essentiel de détermination du montant da la garantie. Il ...
faut donc que la dette garantie existe et soit liquide mais non qu'elle soit
certaine et exigible.
Another leading French legal commentator has described the nature of the
‘constituí’ in the following terms:3
'Le constituí est un engagement indépendant de payer une somme, pris à

titre de garantie, non d’un risque, mais d’une dette (de somme d’argent, on
va le voir), toujours précise et si ce n’est déjà née, du moins devant naître
d’après le cours normal des choses.’ (Emphasis added)
[11] “By contrast, a ‘lettre d’intention' is not an undertaking to pay a specific

money debt. Rather, it is an undertaking by a third party to compensate the
creditor for the prejudices suffered as a result of the debtor’s failure to perform
an obligation. Professor Simler has explained this fundamental difference
2. "P. Simler, Cautionnement et garanties autonomes, supra fn. 1, para. 899, p. 809; P. Simler,
'Garanties autonomes, Nature juridique, caractères, typologie', Jurisclasseur, Fase. 387, 2005 at
para. 54, p. 20:15.”
3. “F. Jacob, Le Constituí ou l’engagement autonome de payer la dette d’autrui à titre de garantie,
(1995: LGDJ) at paras. 223-224, pp. 191-192.”

between ‘cautionnements’ and‘constituís’, on one hand, and ‘lettres d’intention’,

on the other hand:4
‘Certains engagements de tiers garants n’ont pour objet ni la dette même du

débiteur ( cautionnement ou constituí), ni une somme forfaitairement
déterminé (garantie autonome stricto sensu), mais la réparation du
préjudice causé à un créancier par le défaut d’exécution de l’obligation
du débiteur.
Tel est le cas de la lettre d’intention, lorsqu’elle est constitutive d’une
obligation défaire, de résultat ou même seulement de moyens. .. . Une telle
obligation se résout, en effet, en dommages et intérêts, comme le prescrit
l’article 1142 du Code civil. Si l’obligation principale était de somme
d'argent, le résultat final est souvent le même que celui d’un cautionnement
pur et simple de la ou des dettes garanties. Mais le fondement reste différent.’
(Emphasis added)
[12] “It is clear that Respondent’s third undertaking of the 18 October Letter
corresponds exactly to the above definition of a‘lettre d’intention’. Respondent
did not agree to pay a specific money debt in the place of Company DEF.
Rather, Respondent agreed to compensate Claimant ‘for all expenses due ... for
prejudices’ resulting from Company DEF’s failure to perform its obligations
under the Three-Party Agreement. In other words, Respondent agreed to pay
whatever damages Claimant would suffer due to Company DEF’s failure to
perform its obligations, not a specific sum of money.
[13] "Given the nature of this undertaking, the Sole Arbitrator finds that the
18 October Letter is properly characterized as a 'lettre d’intention’ under French
law. Having reached this conclusion, the next issue to be decided is whether
Respondent’s third undertaking amounts to an 'obligation de moyens’ (a best
efforts obligation) or an ‘obligation de résultat’ (an obligation to achieve a
specific result).
[14] “Under French law, it is well established that a 'lettre d’intention con¬
stitutes an 'engagement contractuel de faire ou de ne pas faire’ (contractual
undertaking to do or not do certain acts) that can, depending on its specific
terms, extend as far as an ‘obligation de résultat’, without constituting a ‘cau¬
tionnement’? This is also confirmed by Commentary on Art. 2322 of the new
Livre IV of the French civil code, which is relevant to the extent that it reflects
4. “P. Simler,‘Garanties autonomes, Nature juridique, caractères, typologie’, supra fn. 2, at para. 55,
p. 20.”
5. "Cass, com., 21 December 1987 (Bull. civ. IV, no. 281); P. Simler, Cautionnement et garanties
autonomes, supra fn. 1, at para. 32, p. 30.”

\
‘i
the current position under French case law. The party issuing a ‘lettre d’inten¬
tion avec obligation de résultat’ is fully liable for all damages sustained by the
creditor as a result of the debtor’s failure to perform its obligations, absent proof
that the damages were caused by some external factor. Consequently, the
practical effect a ‘lettre d’intention avec obligation de résultat’ is very similar
to that of a ‘cautionnement’ ,6
[15] “As a result of several relatively recent decisions of the French Cour
de cassation, it is now settled law that an undertaking to pay compensation in
the place of the debtor necessarily constitutes an 'obligation de résultat’ ?
3 Indeed, the Cour de cassation has even extended the concept of an 'obligation
de résultat’ to:
(a) an undertaking to do the necessary so that a subsidiary would have suffi¬

cient funds in its treasury to meet its obligations;8 and
(b) an undertaking to do the necessary to bring the restructuring of a
subsidiary to a successful conclusion.9
In view of these decisions of the Cour de cassation, there can be no doubt that
Respondent undertook an ‘obligation de résultat’ when it agreed to compensate
Claimant ‘for all expenses due ... for prejudices’ resulting from Company
DEF’s failure to perform its obligations under the Three-Party Agreement.
[16] “This conclusion is consistent with the general trend in the French case
law - contractual undertakings of this nature given by a parent corporation for
the benefit of its subsidiaries or affiliates are usually characterized as 'lettres
d’intention avec obligation de résultat’.10
[17] “For all of the above reasons, the Sole Arbitrator finds that the
18 October Letter is properly characterized as a ‘lettre d’intention avec obliga¬
tion de résultat’ under French law.
[18] “As a final matter, it should be noted that the decision on the proper legal
characterization of the 18 October Letter has a very limited impact on the
ultimate outcome of this arbitration. The Parties have argued that the 18
October Letter should be characterized either as a 'cautionnement’, a ‘constituí’
or a ‘lettre d’intention avec obligation de résultat’. All three of these types of
undertakings are, however, subject to the French statutory requirement for prior
6. “P. Simler, Cautionnement et garanties autonomes, supra fn. 1, at para. 32, pp. 30-31.19.”
7. “Cass, com., 26 January 1999 (Dalloz 1999, No. 38) at p. 577; Cass, com., 26 February 2002
(Dalloz 2002, No. 15) at p. 1273; Cass, com., 9 July 2002 (Dalloz 2002, No. 29) at p. 2327; Cass.
com., 19 April 2005 (Court File no. 01 12 347).”
8. “Cass, com., 26 February 2002 (Dalloz 2002, No. 15) at p. 1273.”
9. "Cass, com., 9 July 2002 (Dalloz 2002, No. 29) at p. 2327.”
10. “P. Simler, Cautionnement et garanties autonomes, supra fn. 1, at para. 32, p. 31.23.”

authorization by the Board of Directors, as will be discussed below [at [19]-

[55]]. Only a ‘lettre d’intention avec obligation de moyens’ is not subject to this
statutory requirement.11 Accordingly, the outcome of this arbitration could
only be different if the 18 October Letter were characterized as a ‘lettre d’inten¬
tion avec obligation de moyens’. However, neither Claimant nor Respondent has
advocated such a characterization and, as discussed above, Respondent’s third
undertaking in the 18 October Letter is inconsistent with such a characterization
under French law.”
III. ENFORCEABILITY OF THE 18 OCTOBER LETTER
[19] “In this arbitration, Respondent asserts that its Board of Directors did not
authorize the 18 October Letter. Claimant has not disputed this fact.
Accordingly, the Sole Arbitrator will decide the question of enforceability on
the basis that the 18 October Letter was not authorized by the Respondent
Board of Directors.
[20] “The enforceability of the 18 October Letter turns on the legal conse¬
quences, if any, resulting from the lack of board authorization. In order to
determine these legal consequences, it is necessary to consider the following
matters:
(i) the law applicable to Respondent’s power to contract;

(ii) the requirement for authorization of the Board of Directors under French
law; and
(iii) the applicability of this requirement under French law in the context of
international arbitration.”
1. Applicable Law to Respondent’s Capacity
[21] “This is an ICC arbitration with its seat in Paris, France. In deciding on
the law applicable to Respondent’s power to contract, it is therefore necessary to
consider the relevant provisions of the ICC Rules and the French [New Code of
Civil Procedure - NCCP].
[22] “Art. 17(1) and (2) of the ICC Rules provides as follows in regard to the
question of applicable law:
‘(1) The parties shall be free to agree upon the rules of law to be applied by
the Arbitral Tribunal to the merits of the dispute. In the absence of any such
11. “Cass, com., 26 January 1999 (Dalloz 1999, no. 38) at p. 577; J. Mestre, Obligations et contrats
spéciaux (RTD civ. 1999) at pp. 833-834.”

agreement, the Arbitral Tribunal shall apply the rules of law which it deter¬
mines to be appropriate.
(2) In all cases the Arbitral Tribunal shall take account of the provisions
of the contract and the relevant trade usages.’
Similarly, Art. 1496 of the French NCCP provides as follows:
‘Art. 1496 -L’arbitre tranche le litige conformément aux règles de droit que
les parties ont choisies; a défaut d'un tel choix, conformément à celles qu’il
s, estime appropriées. Il tient compte clans tous les cas des usages du commerce.’
[23] “Due to the fact that the Parties have made an express choice of law in the
18 October Letter, there is no dispute that this contract itself is governed by
French substantive law. It is, however, well established that the principle of
i'¬ party autonomy in the choice of governing law does not extend to the deter¬
mination of the law applicable to issues such as a party’s capacity and power to
contract. Accordingly, arbitral tribunals usually determine the law applicable to
such issues in accordance with the method used to determine the law governing
the contract in the absence of a choice by the parties.12
[24] “Where the parties have not made a choice of law or the choice of law
does not extend to the matter in question, Art. 17 of the ICC Rules and An. 1496
of the French NCCP empower arbitral tribunals to determine the applicable law
directly and without reference to any conflict-of-laws rule. Under this direct
choice method {‘voie directe’), arbitral tribunals are free to choose the rules of
law which they determine to be appropriate.13
[25] “Notwithstanding the very broad discretion under Art. 17 of the ICC
Rules and Art. 1496 of the French NCCP, arbitral tribunals are required to
provide a reasoned explanation for their choice of law in accordance with the
legitimate expectations of the parties.14
ll. "E. Gaillard and J. Savage, eds., Foilchard Gaillard Goldman on International Commercial
Arbitration (1999: Kluwer Law International) at para. 1532, p. 860.”
13. “E. Gaillard and J. Savage, supra fn. 12, at para. 1552, p. 876; Y. Derains and E. Schwartz, A Guide
to the ICC Rules of Arbitration, 2nd ed. (2005: Kluwer Law International) at pp. 240-242; W.L.
Craig, W.W. Park and J. Paulsson, International Chamber of Commerce Arbitration, 3rd ed.
(2000: Oceana Publications, Inc.) at para. 17.01, pp. 319-320; J.-L. Delvolvé, J. Rouche and G.
Pointon, French Arbitration Law and Practice (2003: Kluwer Law International) at paras. 270-
271, pp. 146-147; J.-F. Poudret and S. Besson, Comparative Law of International Arbitration,
2nd ed. (2007: Thomson - Sweet 8C Maxwell) at para. 685, pp. 586-587.”
14. "Y. Derains and E. Schwartz, supra fn. 13, at p. 242 (and ICC Awards cited at fn. 118); J.-L.
Delvolvé, J. Rouche and G. Pointon, supra fn. 13, at para. 273, p. 148; J.-F. Poudret and S. Besson,
supra fn. 13, at para. 685, p. 587.”

[26] “In the present case, the enforceability of the 18 October Letter depends
on Respondent’s power to enter into a specific form of contractual undertaking.
The Sole Arbitrator finds that there is a strong consensus in private international
law that a corporation’s power to contract is governed by the lex societatis, i.e.
either the law of the corporation’s head office or the law under which the cor¬
poration is organized.15
[27] “Respondent is incorporated under French law and maintains its head
office in Paris, France, as evidenced by the 18 October Letter. As a result,
whether one looks to the law of the corporation’s head office or the law
under which the corporation is organized, it follows that the lex societatis of
Respondent is French law.
[28] “Having reached this conclusion, it is necessary to:
(a) examine the requirement for board authorization of guarantees under the
French lex societatis; and
(b) determine whether it is appropriate to apply this requirement of the French
lex societatis in the context of international arbitration.”
2. Requirement for Board Authorization Under Applicable

French Lex Societatis
[29] “For the following reasons, the Sole Arbitrator finds that, under the
French lex societatis, the 18 October Letter is not enforceable because it was
not authorized by the Respondent’s Board of Directors.
[30] "First and foremost, Art. L 225-35 of the French Code de commerce
(formerly Art. 98(4) of Law No. 66-537 of 24 July 1966) sets forth an express
statutory requirement that all ‘cautions, avals et garanties’ must be authorized
by the issuing corporation’s Board of Directors:
‘Art. L 225-35. . .. Les cautions, avals et garanties donnés par des sociétés
autres que celles exploitant des établissements bancaires ou financiers font
l’objet d’une autorisation du conseil dans des conditions déterminées par
15. ‘‘M. Menjucq, Droit international et européen des sociétés (2002: Domac Droit Privé) at paras.
7879, pp. 99-101; E. Gaillard and J. Savage, supra fn. 12, at para. 1532, p. 860 as well as paras. 459-
462, pp. 245-247; W.L. Craig, W.W. Park and J. Paulsson, supra fn. 13, at para. 17.02, p. 328 citing
ICC Case No. 2694/1977 (JDI 1978) at p. 985; J.-F. Poudret and S. Besson, supra fn. 13, at para.
271, p. 234; J.-L. Delvolvé, J. Rouche and G. Pointon, supra fn. 13, at para. 99, p. 59; L. Collins,
-
ed-, Dicey, Morris & Collins: The Conflict of Laws, 14th ed. (2006: Thomson Sweet 8c Max¬
well) at Rule 162(2) and paras. 30-23-30-24, pp. 1345-1348; A. Redfem, M. Hunter, N. Blackaby
and C. Partasides, The Law and Practice of International Commercial Arbitration, 4th ed. (2004:
Thomson - Sweet & Maxwell) at para. 3-27, p. 146.”

K-.-.- •;:i-i-il
j .. ri-iü sr-n-jü- - :ÿ i
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■ii
CÁSE NO. 13954, 2007 ARBITRAL AWARDS

décret en Conseil d'Etat. Ce décret détermine également les conditions dans
lesquelles le dépassement de cette autorisation peut être opposé aux tiers.’
Unlike many cases relating to the authority of corporate representatives, the

enforceability of the 18 October Letter against Respondent thus turns on the
application of a French statutory provision, not on the internal rules and reg¬
ulations of the corporation.
[31] “Second, it is clear that Art. L 225-35 of the French Code de commerce
applies to the 18 October Letter whether it is characterized as a 'caution',a ‘lettre
d’intention avec obligation de résultat’ or a ‘constituí’. The French Cour de
cassation has expressly ruled that the statutory requirement for board authori¬
zation applies to both ‘cautions’ and ‘lettres d’intention avec obligation de
résultat’ .16
[32] “Moreover, the Cour de cassation has made clear that Art. L 225-35 of the
Code de commerce also applies to any other form of undertaking, such as a
v'r. •
‘constituí’, which involves the financial guarantee of another’s performance:17
‘. . . . [Q]uels que soient les termes employés, tout engagement entraînant

une obligation susceptible d'avoir des consequences financiers pour la société
garante en cas de défaillance de la personne garantie doit être regardée
comme entrant dans le champs d’application de l’Art. 98 de la loi du 24
juillet 1966, devenu L 225356 du Code de commerce. . . .’
[33] “There can be no doubt that Respondent’s third undertaking in the

18 October Letter constitutes a financial guarantee of Company DEF’s
performance:
‘We will pay all expenses due by the company [Company DEF] for pre¬
judices faced by Claimant under execution of the said contracts [the Three-
Party Agreement].’
16. “See for example: Cass, com., 28 April 1987 (Dalloz 1988, No. 23) at p. 341 re: application to
‘caution’; Cass, com, 23 October 1990 (JCP G 1990 No. 50) at p. 417 re: application to ‘lettre
d’intention avec obligation de résultat; Cass, com, 26 January 1999 (Dalloz 1999, No. 38) at
p. 577 (with Comment by L. Aynès atparas. 4-6, pp. 578-579) re: application to‘lettre d’intention
avec obligation de résultat’; Cass, com, 26 February 2002 (Dalloz 2002, No. 15) at p. 1273;
P. Simler, Cautionnement et garanties autonomes, supra fn. 1, at para. 33, p. 32 and para. 167,
p. 144:‘[L’Art. L 225-35] doit logiquement s’appliquer à toutes les formes de garanties remplissant
les mêmes fonctions, telles que les garanties autonomes ... ou les lettres d’intention.'”
17. "Cass, corn, 25 February 2003 (RJDA, 2003/7) at p. 656; see also: P. Simler, Cautionnement et
garanties autonomes, supra fn. 1, at para. 33, p. 32 and para. 167, p. 144.”

Accordingly, the 18 October Letter falls within the scope of Art. L 225-35 of the
Code de commerce.
[34] “Third, the French Cour de cassation has insisted for many years on strict
compliance with Art. L 225-35 of the Code de commerce'.
(a) In numerous decisions, the Cour de cassation has consistently held that
guarantees given without prior authorization by the issuing corporation’s
Board of Directors are not enforceable (‘inopposable’) against the corpo¬
ration.18
(b) The Cour de cassation has also found that affiliated corporations remain
distinct legal entities and, accordingly, a parent corporation must obtain
board authorization for guarantees granted in respect of its subsidiaries,
including those in which it holds a 100 percent interest.19
(c) Moreover, the Cour de cassation has even concluded that the failure to
obtain prior authorization cannot be remedied by the board of director’s
subsequent ratification of the guarantee.20
[35] “Fourth, as a matter of French law, it is well established that the principles
of good faith and apparent authority do not override the requirements of Art. L
225-35 of the Code de commerce.21 The French courts have made this position
clear in a number of decisions:
(a) In a decision dated 24 February 1987, the Cour de cassation ruled that a
corporation was not bound by a guarantee given by its president without
prior board authorization. In doing so, the Cour de cassation overturned
the decision of the Cour d’appel to enforce the guarantee based on apparent
18. “Cass, com., 28 April 1987 (Dalloz 1988, No. 23) at p. 341; Cass, com., 23 October 1 990 (JCP G
1990 No. 50) atp. 417; Cass, com., 8 October 1991 and Cass, com., 15 October 1991 (JCPG 1992,
No. 26) atp. 221; Cass, com., 5 March 1996 (Rev. soc. (2) April-June 1996) at p. 276; Cass, com.,
26 January 1 999 (Dalloz 1999, No. 38) at p. 577. See also: P. Simler, Cautionnement et garanties
autonomes, supra fn. 1, at para. 32, p. 32 and paras. 167-169 at pp. 144-147 (as well as other legal
commentators cited at fn. 76, p. 32).”
19. “Cass, corn., 29 November 1982 (JCP G IV 1983), p. 59; Cass, corn., 28 April 1987 (Dalloz 1988,
No. 23) at p. 341; Cass, corn, 5 March 1996 (Rev. soc. (2) April-June 1996) at p. 276; P. Simler,
Cautionnement et garanties autonomes, supra fn, 1, at para. 167, p. 144.”
20. “Cass.com., 8 October 1991 and Cass, com., 15 October 1991 (JCPG 1992, No. 26) atp. 221; CA
Paris, 28 February 2003 (RJDA No. 734) at pp. 656-657.”
21. “P. Simler, Cautionnement et garanties autonomes, supra fn. 1, at para. 167, p. 145; J.-F. Barbiéri
'Note on Cass. corn. 8 October 1991 and Cass, corn 15 October 1991’ (JCP G 1992, No. 26)
at p. 222.”

r • vs F-.il
_ JJVKKS
authority and the beneficiary’s legitimate belief that the corporation’s pres¬
ident had the requisite authority.22
(b) Moreover, in a long line of decisions, the French courts have repeatedly
held that the beneficiary of a guarantee is not entitled to rely on apparent
authority, but rather is obliged to verify that board authorization has in fact
been given by requesting an extract of the minutes of the relevant board
meeting.23
[36] “According to a number of French legal commentators, this strict

approach is justified because the theory of apparent authority presupposes
t
that the third party made a legitimate error. However, in these cases, the
error relates to the legal requirement for prior board authorization of a
guarantee under Art. L 225-35 of the Code de commerce. An error of law cannot
constitute a legitimate error, except in very exceptional circumstances (e.g.,
where there is a longstanding relationship of trust between the parties).24
Indeed, the French Cour de cassation has expressly held that ignorance of the
French legal requirement for board authorization of guarantees does not con¬
stitute a legitimate error even where the beneficiary of the guarantee is a foreign
corporation.25
[37] “While there has been some criticism of this strict approach, French legal
commentators acknowledge that it continues to reflect the current state of
French law.26 Some have suggested that the Cour de cassation may be unwilling
to permit any exceptions based on good faith and apparent authority because
Art. L 225-35 of the Code de commerce is considered to be a matter of French
‘ordre public’ (public policy).27 In this regard, it has been noted that Art. L 225-
35 of the Code de commerce serves an important public interest - it protects the
22. "Cass, com., 24 February 1987 (Rev. soc. 1988) at p. 407. For a similar decision see: CA Paris,
8 December 1995 (Rev. soc. 1996) at p. 356.”
23. "Cass, com., 6 May 1986, (BulL civ. IV, no. 86), p. 74; Cass, com., 24 February 1987 (Rev. soc.
1988) at p. 407; Cass, com., 18 June 1991, (Dr. sociétés 1991, no. 343); CA Paris, 19 February
2003, (Rev. soc. 2004) at p. 434; Cass, com., 16 November 2004, (Bull. Joly Sociétés 2005, no. 3),
p. 366.”
24. “Y. Guyon, Comment on Cass, com., 24 February 1987 (Rev. soc. 1988) at pp. 408-409;
Y. Guyon, Comment on CA Paris, 8 December 1995 (Rev. soc. 1996) at p. 356; Commentary
on C A Paris, 19 February 2003, (Rev. soc. 2004) at p. 43 4; M.-N. Jobard-Bachellier, Comment on
Cass, com., 21 December 1987 (Rev. critique DIP 1989) 347).”
25. “Cass, com., 8 November 1988 (Rev. critique DIP 1989) at p. 371.”
26. “D. Cohen, 'L’ engagement des sociétés à l’arbitrage’ (Rev. arb. 2006) 35 at paras. 54-60, pp . 5153;
Commentary on CA Paris, 19 February 2003 (Rev. soc. 2004) at p. 434.”
27. “M.-N. Jobard-Bacheliier, Comment on Cass, corn., 21 December 1987 (Rev. critique DIP 1989)
347 atpp. 356-358.”

corporation, its shareholders and creditors from improper schemes by-

management.28
[38] “In summary, Art. L 225-35 of the Code de commerce requires prior
authorization of the Board of Directors for all guarantees, failing which the
guarantee is not enforceable against the corporation. As a matter of French
law, it is clear that this statutory requirement applies to the 18 October
Letter. The French courts have insisted on strict compliance with Art. L 225-
35 of the Code de commerce and all attempts to circumvent or override this
statutory requirement based on principles of good faith and apparent authority
have been rejected.”
3. Applicability of Lex Societatis in International Arbitration
[39] “Having found that strict compliance with Art. L 225-35 of the Code de
commerce is required under the French lex societatis, the next issue to be deter¬
mined is whether this statutory provision is applicable in the context of an
international arbitration such as this one. Specifically, it is necessary to deter¬
mine whether substantive legal principles such as good faith, apparent authority
and estoppel should take precedence over or have a corrective effect on the
French lex societatis. There are two main arguments to be considered in this
regard.
[40] “First, as noted above, Claimant relies on the concept of ‘trade usages’ in
Art. 17 of the ICC Rules and Art. 1496 of the French NCCP as the basis for
arguing that the strict rules which may apply to the powers of corporate repre¬
sentatives under the lex societatis are considerably attenuated in international
arbitration. Second, although not specifically framed in these terms, Claimant
has suggested that international arbitrators may in any event have recourse to
substantive legal rules such as good faith, apparent authority and estoppel either
on freestanding basis or as a corrective measure applied to the relevant national
law.”
a. Trade usages in international arbitration
[41] “In view of Art. 17 of the ICC Rules and Art. 1496 of the French NCCP,
it is clear that the Sole Arbitrator is obliged to take into account international
trade usages. There has, however, been debate among legal commentators
regarding the exact meaning of ‘trade usages’. Some arbitrators and legal
28. “P. Simler, Cautionnement et garanties autonomes, supra, at para. 33, p. 32, referring to the
pleadings of the Advocate General before the Cour de cassation in its decision of 21 December
1987.”

'i
N
commentators have argued that ‘trade usages’ should be given a broad interpre¬
tation which equates this concept with general principles of international
commercial law. These rules of law, sometimes included within the notion of
‘lex mercatoria’, are derived from comparative law or other international
sources.29
[42] “The prevailing and better view is that the concept of ‘trade usages’ is much
more limited. Under this strict interpretation, ‘trade usages’ are confined to:
(a) practices known to and customarily followed in a particular business,

industry or professional field; and
(b) practices arising out of the parties’ own course of dealing.30 Unlike general
principles of international commercial law or ‘lex mercatoria’, trade usages
are therefore internal, not external, to the parties’ agreement.31
i.
[43] “Trade usages are clearly important for the interpretation and application
of international contacts. However, the fact that such practices must be taken
into account in all cases does not enable one to ignore the applicable law,
whether it is chosen by the parties or the arbitrators. Trade usages do not con¬
stitute rules of law and cannot take precedence over the applicable law or dis¬
pense with the necessity of identifying it.32
[44] "Given the prevailing view on this question, the Sole Arbitrator finds that
the strict interpretation of trade usages is the correct one and should be adopted.
Consequently, the Sole Arbitrator cannot agree with Claimant’s submission that
legal principles such as good faith, apparent authority and estoppel fall within
the meaning of trade usages. It follows that the concept of trade usages under
Art. 17 of the ICC Rules and Art. 1496 of the French NCCP does not provide a
basis for finding that the aforementioned legal principles take precedence over
the lex sodetatis in international arbitration.”
29. “See for example: ICC Case No. 4667, Award of 1984 (JDI 1987) atp. 1047; B. Goldman,‘La lex
mercatoria dans les contrats et l’arbitrage internationaux: réalité et perspectives’ (JDI106) 475 ar
p. 478; E. Loquin, ‘La réalité des usages du commerce international’ in Revue générale de droit
économique (1989), at p. 163. For one of the seminal articles describing and criticizing the broad
interpretation of ‘trade usages’ see: E. Gaillard, ‘La distinction des principes généraux du droit et
des usages du commerce international! in Mélanges Bellet (1991: Litec) (‘E. Gaillard - Usages’) at
pp. 201-217.”
30. “Y, Derains andE. Schwartz, supra fn. 13, atpp. 243-244; E. Gaillard and J. Savage, supra fn. 12,
at paras. 1513-1514, pp. 844-846; E. Gaillard- Usages, supra fn. 29, atpp. 216-217; J.-F. Poudret
and S. Besson, supra fn. 13, at para. 689, pp. 589-590.”
31. “Y. Derains and E. Schwartz, supra fn. 13, at p. 243.”
32. E. Gaillard and J. Savage, supra fn. 12, at para. 1514, p. 846; E. Gaillard - Usages, supra fn. 29, at
pp. 214-217; J.-F. Poudret and S. Besson, supra fn. 13, at para. 689, pp. 589-590.”

b. Impact of substantive law rules
[45] “In considering the capacity and power of corporations in the context of
international arbitration, it has been suggested by some legal commentators that
the lex societatis may be supplanted entirely or corrected by substantive legal
rules such as good faith and apparent authority.33
[46] “As noted above, Claimant relies on several international arbitral awards
and French court decisions where good faith and apparent authority have
provided the legal basis for enforcing agreements concluded by corporations.34
For two main reasons, the Sole Arbitrator finds that these legal authorities are
not relevant to the enforceability of the 18 October Letter:
(a) First, almost all of these legal authorities relate specifically to the enforce¬
ability or validity of arbitration clauses, not the substantive contractual
obligations of the parties. There is a strong consensus that the principles
of good faith and apparent authority provide a sound legal basis for
upholding the validity of arbitration clauses. Indeed, these principles
have been elevated to the status of substantive rules of international arbi¬
tration in France.35 It is, however, equally clear that the French courts have
not extended these principles beyond the realm of the arbitration clause to
other substantive contractual obligations of the parties and, in particular,
the French courts have not done so in respect of guarantees.36 While this
position may once again be open to criticism, it represents the current state
of French law.
(b) Second, none of the legal authorities cited by Claimant address the situa¬
tion where the enforceability or validity of a contact turns on the effect of a
specific statutory provision, rather than on the internal rules and regula¬
tions of the corporation. This is a critical point and one which distinguishes
all of these legal authorities from the present case.
33. "See for example: D. Cohen, ‘L’engagement des sociétés à l’arbitrage', supra fn. 26; E. Gaillard
and J. Savage, supra fn. 12, at paras. 463-470, pp. 247-253.”
34. “ICC Case No. 4667, Award of 1984 GDI 1987) at p. 1047; ICC Case No. 4381, Award of 1986
GDI 1986) at p. 1103; ICC Case No. 10982, Award of 2001 GDI 2005) at p. 1256; CA Paris, 10
June 2004 (Rev. arb. 2006) at p. 154 (cited by Claimant at Droits des Sociétés (2002: Juris-
Classeur) at p. 23); CA Paris, 28 October 2004 (Rev. arb. 2006) at p. 189; CA Paris, 24 February
2005 (Rev. arb. 2006) at p. 210.”
35. “See legal authorities cited above at fn. 34; D. Cohen, supra fn. 26, at pp. 47-55; E. Gaillard and J.
Savage, supra fn. 12, at paras. 463-470, pp. 247-253; J.-F. Poudret and S. Besson, supra fn. 13, at
para. 278, pp. 240-241.”
36. "D. Cohen, supra fn. 26, at paras. 54-59, pp. 51-53: This legal commentator is critical of the
French courts’ decision to limit the application of apparent authority to the arbitration clause but
nevertheless acknowledges that this position represents the current state of French law.”
536 Reprinted from the Yearbook Commercial Aibitration

r

[47] “In any event, the Sole Arbitrator finds that general principles such as
good faith and apparent authority do not, on the facts of this arbitration, provide
a basis for concluding that the 18 October Letter is enforceable against
Respondent. This is so whether these principles are applied directly as a sub¬
stantive legal rule or as a corrective of the lex societatis. While international
arbitrators are committed to holding parties to their contractual obligations,
it is important to recognize there is no general principle of favor validitatis.
The validity of the contract, in itself, is not something deserving of protection.
Rather, the validity of the contract is dependent on compliance with che appli¬
cable rules of law, whether they result from a national law or general
principles.37
[48] “It is clear that the general principle of apparent authority is widely rec¬
ognized at the international level. This principle is, however, subject to an
important limitation - the other party must be reasonably diligent.
Specifically, the other party has a duty to take such steps as are reasonable in
the circumstances to verify that its counterparty is duly empowered to sign the
contract in question.38 In this regard, the general principle of apparent authority
is entirely consistent with the position under the French lex societatis, as pre¬
viously discussed.
[49] “Turning to the facts of this arbitration, Claimant has not alleged nor has
it tendered any evidence to show that it made enquiries regarding:
(a) Mr X’s authority to sign the 18 October Letter on behalf of Respondent; or

(b) any other factual or legal issue relevant to Respondent’s power to conclude
the 18 October Letter. Rather, Claimant relies exclusively on the statement
contained in this letter that Respondent was ‘duly represented by Mr X’.39
In the absence of any evidence to show that relevant enquiries were made by
Claimant, the Sole Arbitrator finds that Claimant did not fulfil its duty to verify
the power of Respondent to enter into the 18 October Letter at the time of
contracting and thus failed to meet the standard of reasonable diligence.
37. "E. Gaillard and J. Savage, supra fn. 12, at para. 1466, p. 822.”
38. “M. Menjucq, supra fn. 15, at paras. 80-81, pp. 101-104; E. Gaillard and J. Savage, supra fn. 12, at
para. 1464, p. 821; J.-L. Delvolvé, J. Rouche and G. Poinçon, supra fn. 13, at para. 274, p. 149; J.-F.
Poudret and S. Besson, supra fn. 13, at para. 697, pp. 598-599; P. Simler, Cautionnement et
garanties autonomes, supra fn. 1, at para. 167, p. 145."
39. "In this regard, see the following passage relating the need to verify board authorization of
guarantees under French law - P. Simler, Cautionnement et garanties autonomes, supra fn. 1,
at para. 167, p. 145:'[L]e tiers doit verifier la réalité de 1’authorisation. Il ne peut se contenter de la
mention de son existence dans l’acte de cautionnement’ (citing inter alia Cass. Com., 6 May 1986
(Bull. civ. IV, No. 86)).”

[50] “Furthermore, the existence of specific legal requirements for the enforce¬
ability of undertakings such as ‘cautions, avals et garanties’ should not come as a
complete surprise to sophisticated commercial parties active in international
trade. Unlike ordinary commercial contracts, guarantees are subject to special
conditions and rules in many different legal systems around the world.
[51] “It is particularly difficult to accept that such specific legal requirements
would come as a surprise where the lex sodetatis of the corporation granting the
undertaking is the same as the substantive law governing the undertaking itself.
Indeed, several leading French legal commentators have specifically concluded
that, where the law governing a guarantee is the same as the law applicable to the
capacity or power of the corporation issuing the guarantee, a creditor claiming
to be ignorant of the content of such law must be regarded as negligent and
undeserving of protection.40
[52] “In the present case, the Parties expressly chose French law as the sub¬
stantive law governing the 18 October Letter. Moreover, Claimant was fully
aware that Respondent was a corporation subject to French law. Claimant has,
in fact, emphasized that securing a guarantee from a European corporation such
as Respondent was an ‘essential condition’ for its purchase of the Goods from a
Country Z firm. In these circumstances, a reasonably diligent commercial party
would have verified that all requirements of French law pertaining to the validity
and enforceability of the 18 October Letter were satisfied before proceeding
with the transaction.
[53] “Considering the evidence on record and the fact that the requirement for
board authorization of all guarantees results from a clear and longstanding
French statutory provision, the Sole Arbitrator finds that Claimant did not
meet the standard of reasonable diligence and therefore its ignorance of
French law was not legitimate. Accordingly, even if one were to assume that
the principles of good faith and apparent authority should take precedence over
or have a corrective effect on the French lex sodetatis, Claimant is not entitled to
the benefit of these principles in this arbitration.”
4. Conclusion on the Enforceability of the 18 October Letter
[54] “For all of the above reasons, the Sole Arbitrator concludes that the
18 October Letter is not enforceable against Respondent. Accordingly,
Claimant’s claims against Respondent in this arbitration must be dismissed.
40. “M. Menjucq, supra In. 15, at paras. 80-81, pp. 101-104; see also: R. Libchaber, Note on Cass.
com. 9 April 1991,‘La loi applicable aux sociétés et aux pouvoirs des dirigeants sociaux’ (Rev. soc.
1991) atp. 747; P. Simler, Cautionnement et garanties autonomes, supra fn. 1, at para. 167, p. 145.
See also: Cass, com., 8 November 1988 (Rev. critique DIP 1989) at p. 371.”

it
1
[55] “As a final matter, it should be noted that the decision to dismiss
Claimant’s claims is based on the Parties’ factual and legal submissions regarding
the liability of Respondent. The Sole Arbitrator provided the Parties with a full
opportunity to file evidence and make legal submissions in this arbitration.
Moreover, after several exchanges of written submissions, the Sole Arbitrator
requested the Parties to address several specific legal issues including inter alia
the following:
‘3. If the October Letter is unenforceable due to the fact that it was not
authorized by the Respondent’s Board of Directors, do the facts alleged in
- this arbitration give rise to any other legal cause(s) of action and, if so, what
defences are applicable to such cause(s) of action?’
In response to this request, the Parties took the position that the sole cause of
action or legal claim to be decided in this arbitration is Claimant’s claim for
breach of contract in regard to the 18 October Letter (i.e. other than the
subsidiary claims for interest and costs). The Sole Arbitrator has therefore decid¬
ed the liability of Respondent based on this position.”
IV. COSTS
[56] "Under Art. 31(1) of the ICC Rules, the costs of the arbitration are
divided into two main categories:
(a) the fees and expenses of the arbitrators and the ICC administrative
expenses, which are fixed by the ICC Court (the ‘arbitration costs’); and
(b) the reasonable legal and other costs incurred by the parties for the arbitra¬
tion (the ‘party costs’).
In this arbitration, the ICC Court has fixed the arbitration costs at US$ 24,000.
Claimant and Respondent have each paid equal advances of US$ 12,000 in
respect of the arbitration costs.
[57] “In Claimant’s Rebuttal and Final Submission as well as its oral submis¬
sions during the Hearing for Oral Argument, Claimant has requested an order
that Respondent pay all costs of this arbitration, including Claimant’s party
costs in the amount of approximately € 60,000. In Respondent’s Rebuttal and
Final Submission as well as its oral submissions during the Hearing for Oral
Argument, Respondent has requested an order that Claimant pay all costs of this
arbitration, including Respondent’s party costs in the amount of approximately
€50,000.
Reprinted from the Yearbook CommerciarArbitration 539

[58] “Art. 31(3) of the ICC Rules provides:
‘The final Award shall fix the costs of the arbitration and decide which of
the parties shall bear them or in what proportion they shall be borne by the
parties.’
It is well established that ICC arbitral tribunals have broad discretion in decid¬
ing on the costs of the arbitration. The only general requirement is that the
arbitral tribunal must give reasons for its decision on costs in accordance
with Art. 25(2) of the ICC Rules.41
[59] “Traditionally, there have been three approaches to the allocation of the
costs of the arbitration:
(a) the parties bear the costs of the arbitration equally;

(b) the costs are divided between the parties based on the outcome on the
merits; or
(c) the party that is unsuccessful on the merits bears the entire costs of the
arbitration.42
In recent years,, it has become increasingly common for arbitral tribunals to

prefer the third approach, which is often referred to as the principle of ‘costs
follow the event’.43
[60] “While recognizing the current trend in favour of ‘costs follow the event’,
the Sole Arbitrator does not consider it appropriate to apply this principle in the
present arbitration. As found above, Claimant did not fulfil its duty to verify the
power of Respondent to enter into the 18 October Letter at the time of con¬
tracting and thus failed to meet the standard of reasonable diligence.
[61] “Notwithstanding this finding, Claimant’s decision to commence this
arbitration was not entirely unreasonable. The evidence on record indicates
41. “Y. Derains and E. Schwartz, supra fn. 13, at pp. 371-374; E. Schâfer, H. Verbist and C. Imhoos,
ICC Arbitration in Practice (2005: Kluwer Law International) atp. 154; E. Gaillard andj. Savage,
supra fn. 12, at para. 1255, pp. 685-686.”
42. "Y. Derains and E. Schwartz, supra fn. 13, at pp. 371-374; E. Schafer, H. Verbist and C. Imhoos,
supra fn. 41, at p. 154.”
43. "E. Gaillard and J. Savage, supra fn. 12, at para. 1255, pp. 685-686; Award in ICC Case No. 8486
of 1996, Vol. XXIVa (1999) Y.B. Com. Art. 162 at pp. 172-173; J. Lew, L. Mistelis and S. Krôll,
Comparative International Commercial Arbitration (2003: Kluwer Law International) at para.
2482, p. 652; M. Bühler, 'Awarding Costs in International Commercial Arbitration; An Over¬
view’ (ASA Bulletin Vol. 22, No. 2 2004) 249 at pp. 259-262: this legal commentator confirms the
growing acceptance of the principle of ‘costs follow the event’, while noting that it is not of
universal application particularly in arbitrations involving state parties.”
540 Reprinted ftonn the Yearbook Commercial Arbitration

that Respondent did not put in question the enforceability of the 18 October
Letter until after the commencement of this arbitration. If Respondent had
taken this position clearly and unequivocally at an earlier stage, it is possible
that Claimant would have chosen to commence legal proceedings against
Company DEF and Company ABC before the English courts rather than to
commence this arbitration against Respondent. While Respondent’s conduct
does not have any impact on the merits of this dispute, the Sole Arbitrator
considers it appropriate to take this conduct into account in deciding on the
allocation of costs.
[62] “Considering these circumstances and the fact that both Parties acted
reasonably during the course of this arbitration, the Sole Arbitrator finds it
fair and reasonable that Claimant and Respondent should:
(a) bear the arbitration costs equally; and

(b) each bear its own party costs incurred in connection with this arbitration.”
(....)
Reprinted from the Yearbook CommerciarAibitration 541

--
í lû :•;
Parties: Claimant: Company A (Italy)

Respondent: (1) Respondent 1 (Italy);
(2) Respondent 2 (Italy);
(5) Respondent 5 (Italy)
Place of
arbitration: Geneva, Switzerland
Subject matters: - applicable law to validity of arbitration clause

- arbitrability of anti-trust issues
- restriction of competition
- EU and Italian competition law
- reduction of penalty for breach of contract
— legal costs for ancillary court proceedings
Summary
(i) In accordance with Art. V(l)(a) 1958 New York Convention, the validity
of the arbitration clause was examined under the law of the seat of arbitra¬
tion ( Switzerland ), lacking a choice by the parties. Under Swiss law, the
clause was valid as to both form and substance, (ii) The non-competition
clause in the context of a concentration agreement was examined under
Italian competition law, which applied even if the concentration fell
below the threshold for mandatory communication to the Italian anti¬
trust authority. Under Italian law on concentrations, the non-competition
obligation was reduced from five to two years. The arbitrators found that
they had full jurisdiction under Swiss law to decide competition issues.
(Hi) The non-competition clause need not be signed separately as provided
by Art. 1341 Italian Civil Code, because it had been negotiated, was not
included in standard conditions of contract and respondents had been aware
of it. (iv) The respondents had breached the non-competition clause. The
penalty for this breach was halved on the facts of the case, (v) Costs relating
to ancillary court proceedings were granted.

The Italian Company A (Claimant) entered into a Framework Agreement with the
Italian company XYZ srl and Respondents 1 to 5 to acquire the XYZ trademark
and commercial network and other assets. Respondents 1 to 5 were identified in the
Framework Agreement as warrantors of any and all undertakings made and/or
breaches committed by Respondents 1 and 2 under the Agreement. Art. 10 of the
Framework Agreement provided that Respondents would indemnify Claimant for
“any loss, damage, claim, proceeding”. Art 11 stated that Respondents 1 and 2
undertook not to carry out, whether directly or indirectly, any trading or business
activities which could compete with the activities of the XYZ business for a period
of five years after conclusion of the Agreement. Art. 11 further provided for a
penalty of € 3,000,000 in case of breach of the non-competition obligation.
According to Art. 17, substantive Italian law applied to the contractual relation¬
ship; disputes were to be referred to ICC arbitration in Geneva, while the Italian
courts in Milan had exclusive jurisdiction over all matters relating to the
Framework Agreement that could not be referred to arbitration.
Pursuant to the Framework Agreement, the parties subsequently entered into
a public Deed of Transfer in Italy. The Deed purported to be “a mere execution”
of the Agreement, which did neither “affect nor novate the provisions contained
herein, which shall continue to be wholly and exclusively valid and enforceable
between the Parties”. It was governed by Italian law and repeated verbatim both
the non-competition clause and the arbitration clause contained in the
Framework Agreement.
Two months after the Framework Agreement was concluded, Respondent 1
requested Claimant to be relieved from the non-competition obligation in
respect of part of the business. This request was rejected by Claimant.
A dispute arose between the parties when Claimant discovered that Italian
Company S, which was active in the field of the business at issue in the Milan
area, was linked to Respondents 1 and 2. Specifically, the registered office of
Company S was located beside the former premises of Company XYZ and
Company S carried out its business at premises leased to a company owned
by the daughter of Respondent 2, Respondent 1 and the wife of Respondent 1.
Also, Respondent 1 worked for Company S on a daily basis.
Claimant first filed an application with the Milan Court of First Instance,
seeking and obtaining an injunction to stop any of Respondent Ts activities that
were in breach of Art. 11 of the Framework Agreement. The Milan Court of
Appeal upheld this decision. At Claimant’s request, the Milan court of first
instance subsequently ordered the attachment of assets of Respondents 1 to 4
for an amount of €3,000,000, that is, the penalty provided by the Framework
Agreement in the case of breach of the non-competition clause.
Claimant also commenced ICC arbitration against all Respondents as
provided for in the Framework Agreement. Respondents 2 and 3 appeared

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■
T"- -- -íJ •.-..•.-j .—T..! ass:
-
J

before the arbitral tribunal; Respondents 1, 4 and 5 did not. The arbitral tribunal
held in its award that Respondents 1 and 2 breached the non-competition clause
in the Framework Agreement, which was valid and binding upon them for two
rather than five years as provided for in the Agreement. It also directed all
Respondents to jointly and severally pay Claimant the contractual penalty,
which it reduced to €1,500,000.
The arbitrators noted at the outset that in case of (partial) default of the
respondents an arbitral tribunal must, on its own initiative, consider the matter
of its own jurisdiction. Under Art. V(l)(<i) of the 1958 New York Convention,
the validity of an arbitration agreement is examined either by reference to the
law stipulated by the parties or, failing such a stipulation, to the law of the place
of arbitration. In the present case, Swiss law (the law of the seat) applied as the
parties, as is usually the case, did not make a separate stipulation in respect of the
law applicable to the arbitration clause.
The arbitration clause was valid as to both form and substance under
Swiss law. The arbitrators noted in respect to form that the Framework
Agreement was signed and each page thereof initialed by each and any of the
Parties. As to substance, the dispute concerned the implementation of the
Framework Agreement and therefore fell within the scope of the arbitration
clause therein.
Having found that it had jurisdiction, the arbitral tribunal concluded, on the
evidence before it, that Respondents 1 and 2 breached the non-competition
clause by carrying out the relevant business through Company S. The same
conclusion had been reached by the first instance and appellate courts in Milan.
The arbitrators next considered whether the non-competition clause in the
Framework Agreement was compatible with EU and Italian anti-trust laws.
They noted preliminarily that under Swiss law they had the power to decide
this issue. The arbitrators first held that EU competition legislation did not
apply. Specifically, Art. 81 (agreements limiting competition) and Art. 82
(abuse of dominant position) of the EU Treaty did not apply because the rela¬
tionship between the parties did not affect interstate commerce and the parties’
market share did not reach the standard, forty percent, for a dominant position.
Nor was the EU legislation on concentrations applicable, because of the parties’
limited turnover.
The arbitral tribunal then examined whether the non-competition provision
in the Framework Agreement was compatible with Italian antitrust law. It rea¬
soned that under Italian law, the agreement between the parties undisputedly
constituted a concentration. Concentrations involving a sum above a certain
minimum must be mandatorily communicated to the Italian antitrust authority,
the Autorità Garante. This was not the case here, where the sums involved were
below that sum. However, opined the tribunal, the basic principles of Italian

competition law, which mirror the provisions in the EU competition legislation,

apply to all concentration deals, even if they are not subject to the scrutiny of the
Autorità Garante. Thus, as provided by EU competition law - and confirmed by
several decisions of the Autorità Garante in the context of Italian competition
law - where a concentration is allowed, competition restrictions that are
necessary to the implementation of the concentration are justified. However,
they are only allowed for a maximum of three years when the transfer of the
undertaking includes goodwill and know-how, two years in other cases.
In the present case there was no transfer of goodwill and know-how to the
buyer. Therefore, the clause could be considered legitimate for two years only.
The arbitrators denied Respondents’ objection that the non-competition
clause was formally invalid under Art. 1341 of the Italian Civil Code, which
requires that clauses containing restrictions to contractual freedom - such as the
non-competition clause at issue - be separately approved and signed. The tri¬
bunal reasoned that Italian jurisprudence has made clear that (1) a separate
signature is necessary only where the clause is included in standard conditions
of contract; (2) there is no need of a separate signature where the conclusion of
the agreement has been preceded by negotiations and (3) as the scope and
purpose of the rule is to ascertain the contracting party’s knowledge of the
contractual clause restricting its freedom, no separate signature is required
where it is proved that the party was aware of the restriction.
On the facts of the present case, the tribunal concluded that the parties had
negotiated the Framework Agreement and that the Framework Agreement
could not be characterized as general conditions of contract within the meaning
of Art. 1341 Italian CC. Also, the tribunal found that there was no doubt that
Respondents were perfectly aware of the non-competition clause, inter alia,
because the clause was repeated in the Deed of Transfer.
The arbitral tribunal next dealt with the contractual penalty provided in the
Framework Agreement for breach of the non-competition clause, holding that
the penalty was applicable but granting Respondent’s request that it be reduced.
The penalty should be reduced € 1,500,000 from the original € 3,000,000,
because € 3,000,000 represented more than half of the price paid for
Company XYZ and, while justified by Claimant’s interest in the performance
of the non-competition clause by Respondents, represented a substantial
amount for Respondents, private persons, who did not have the same economic
means as Claimant, a large corporation. Also, Claimant did not show that com¬
petition by Respondents had a negative impact on its business, which on the
contrary increased significantly after the purchase of Company XYZ through
the Framework Agreement. The tribunal added that the consequences of the
breach remained limited to the activity developed by Company S, a small
company with a share capital of €20,000, in a limited geographical area.

!
The tribunal granted interest on the penalty at the rate of 6 percent agreed in
the Framework Agreement.
The arbitrators finally dealt with the issue of costs. Claimant sought legal
costs in respect of both the arbitration and the Milan court proceedings. The
tribunal noted that costs associated with ancillary judiciary proceedings are
increasingly allowed in (ICC) arbitrations. Since in this case the costs were
made in connection with Respondents’ breach, they could be qualified as
damages for which Claimant should be indemnified as expressly provided by
the Framework Agreement. They were also reasonable.
:?•
The arbitral tribunal allocated legal costs between the parties - 70 percent for
i.
Respondents and 30 percent for Claimant - reasoning that while Claimant won
-, on the principle of its claims (breach of the non-competition clause, validity of
the non-competition clause and validity of the penalty clause), Respondents
won on both the partial invalidity of the non-competition clause (which was
reduced from five to two years) and the reduction of the penalty (from €
3,000,000 to €1,500,000). The costs of the arbitration, which had been advanced
by Claimant also on behalf of Respondents, were to be borne by Respondents,
with interest.
Excerpt
I. JURISDICTION
[1] “As a consequence of the Respondents not having answered the Request
for Arbitration, the ICC Court, being prima facie satisfied that an arbitration
agreement under the Rules may exist, decided that this arbitration shall proceed,
it being specified that ‘this decision being administrative in nature, the Arbitral
Tribunal must still decide on its own jurisdiction in accordance with Art. 6(2) of
the Rules’.1 Art. 6(2) of the ICC Rules provides that:
‘If the Respondent does not file an Answer, as provided by Art. 5 [obliga¬
tion for the Respondent to file an Answer within 30 days from the receipt of
the Request from the Secretariat] ... the Court may decide, without
prejudice to the admissibility or merits of the plea or pleas, that the arbi¬
tration shall proceed if it is prima facie satisfied that an arbitration agree¬
ment under the Rules may exist. In such a case, any decision as to the
jurisdiction of the Arbitral Tribunal shall be taken by the Arbitral Tribunal
itself.’
1. “See Letter of the Secretariat of the ICC Court to the Arbitral Tribunal.”

[2] "It is indeed widely admitted that, in case of default, the Arbitral Tribunal
must, on its own initiative, consider the matter of its own jurisdiction.2 In the
case under scrutiny, it is true that Respondents 2 and 3 took part in the arbitral
proceedings without challenging the arbitration clause and the Arbitral
Tribunal’s jurisdiction. But still, three Respondents, namely Respondents 1, 4
and 5 did not participate at all in the arbitration proceedings.
[3] “Under Art. V(1 )(a) of the New York Convention for the Recognition and
Enforcement of Foreign Arbitral Awards of 1958 (the New York Convention),
the agreement to arbitrate is examined either by reference to the law stipulated
by the parties or, failing such a stipulation, to the law of the place of arbitration.
Given the generally recognized principle of the autonomy of the arbitration
clause on the one hand, and the fact that the law applicable to the arbitration
clause is rarely the subject of a specific stipulation, on the other, most national
courts’ decisions under the New York Convention have applied the law of the
country where the award was rendered.3 It is worth noting that the Italian
Supreme Court has declared that Art. II of the New York Convention consti¬
tutes a lex specialis rendering inapplicable the general Italian rules of form
concerning arbitration agreements.4
[4] “In the case at hand, the arbitration clause does not contain any reference
to the law applicable to it. As a consequence thereof, the validity of the arbi¬
tration clause must be examined under the law of the seat of the arbitration,
namely Swiss law.
[5] “Art. 178(1) of the Swiss Private International Law Act (the PIL Act)
provides that:
‘As to form, the arbitration clause shall be valid if it is made in writing, by

telegram, telex, telecopier, or any other means of communication that
establishes the terms of the agreement by a text.’
In the case under scrutiny, not only the Framework Agreement has been exe¬
cuted by each and any of the Parties thereto, including each and any of the
Respondents, but in addition each page of this Agreement, including the page
containing the arbitration clause, has been initialled by each and any of the
2. “Yves Derains and Eric A. Schwarz, A Guide to the ICC Rules of Arbitration, 2nd ed. Kluwer,
p. 104 and references.”
3. "W. Laurence Craig, William W. Park, Jan Paulsson, International Chamber of Commerce Arbi¬
tration, 3rd ed., Oceana Publications, Inc., 2000, no. 5.05, pp. 53 and 54 with reference to Com¬
mentary, XI YEARBOOK 450 (1986); see also Deutsche Schachtbau- und Tiefbohrgesellschaft
mbH v. Ras Al Khaimah National Oil Co. et al., decision of the Court of Appeal of England of
24 March 1987, [1987] 2 Lloyd’s L. Rep. 246, [1987] 2 All. E.R. 769.”
4. “Cass. 7 October 1980, 1980, Riv. Dir.Int. pp. 178, summarized in VII Yearbook 342 [1982].”

TZZZZZSZSZSñnZT't
i
J

Respondents. There is no question therefore that the arbitration clause
contained in the Framework Agreement is valid as to form.
[6] "As to substance, Art. 178(2) of the PIL Act reads as follows:
‘As to substance, the arbitration agreement shall be valid if it complies with

the requirements of the law chosen by the parties or the law governing the
object of the dispute and, in particular, the law applicable to the principal
contract, or with Swiss law.’
Pursuant to Swiss case law, the hypothesis of the choice by the Parties of the law
r applicable to the arbitration clause is relevant only where the parties have elected
for the arbitration clause a law different from the one applicable to the contract
itself.5 The arbitration clause under scrutiny does not contain such a reference.
[7] “The validity as to substance of the arbitration clause contained in the
Framework Agreement shall therefore be examined under Swiss law.
Pursuant to Swiss case law, when the existence of an arbitration clause is estab¬
lished, as it is the case here, there is no ground for a restrictive interpretation.
Quite to the contrary, one has to consider that the parties want that the arbitral
tribunal be vested with a general jurisdiction, and, in case of doubt, that they did
not intend to refer to arbitration only their disputes relating to the implemen¬
tation of their respective obligations, but also the ones concerning the validity of
the agreement that embodies such obligations.6
[8] “The formal validity of the arbitration agreement at stake having been
ascertained by this Tribunal, there is no doubt therefore that this agreement
contends the arbitral tribunal’s jurisdiction on all and any disputes arising out
of the implementation of the agreement in dispute, namely the Framework
Agreement. The dispute at hand precisely relates to the implementation of
[9] “As regards the arbitrability of the dispute, an issue which also relates to
the validity as to substance of the arbitration agreement, the Arbitral Tribunal
examines the issue in concreto below to conclude that the dispute at hand is
arbitrable.
[10] “It results from these explanations that the arbitration clause contained in
the Framework Agreement is valid as regards to both form and substance. This
Arbitral Tribunal is therefore vested with the jurisdiction to decide on the merits
of the case.”
5. "ATF 117 II 94, 98, JdT 1992 I 57.”

6. "ATF 116 la 56, 58-59, JdT 1990 1 563.”

II. ANALYSIS
[11] "The existence of the non-competition clause contained in Art. 11 of the

Framework Agreement is a matter of fact.
(1) The first issue to examine therefore is whether, as alleged by the Claimant,
the obligees to this contractual clause, namely Respondent 1 and
Respondent 2, actually breached it or not.
(2) Should the answer to the question put above be affirmative, then the Tri¬
bunal would have to examine Respondent 3 and Respondent 2’s first
defence, namely the compatibility of the non-competition clause with
EU and Italian anti-trust Laws.
(3) Should the answer to the question of compatibility with EU and Italian
anti-trust laws be affirmative, then the Tribunal would have to examine the
second defence of Respondents mentioned above, namely the formal valid¬
ity of the non-competition clause pursuant to Art. 11 of the Framework
Agreement and Art. 1341 of the Italian Civil Code (It.cc).
(4) Should the Tribunal find that the non-competition clause is valid with
respect to both (i) EU anti-trust law and (ii) the formal requirements for
such a clause, then the Tribunal would have to examine whether the penalty
clause must be applied as such (Claimant’s contention) or reduced ex aequo
et bono (Respondents 3 and Respondent 2’s contention).
(5) Finally, should the Tribunal conclude that the penalty clause is applicable
(as such or reduced) the Tribunal would have to decide whether or not the
warrantors, as defined by the Framework Agreement, are jointly and sev¬
erally liable for the payment of the penalty together with the obligees to the
non-competition clause.
The Tribunal will then decide on the issue of costs of the arbitration and of the
Milan Court proceedings (injunction and attachment).”
1. Breach of Non-Competition Clause
[12] “The Claimant contends that Respondent 1, direcdy or indirectly (i.e.

through Company S), breached the non-competition clause of Art. 11 of the
Framework Agreement in carrying out the business activity at issue in favour of
Company S on a daily basis during a certain period. The Claimant states that this
activity competes directly with the Business subject matter of the sale provided
for in the Framework Agreement.
[13] “The Claimant has produced Company S’s company register which
indeed shows that this company is active in the field of the business at issue.

Company S is domiciled near Milan. In addition, the Claimant has proven that
the premises where Company S carries out its business is leased to a company
named ABC. With respect thereto, the Claimant submitted an agreement by
which Company XYZ, represented by its sole Director Respondent 2, sells this
real estate to a company named DEF, which in turn leases the same real estate to
ABC represented by Respondent 1 in his capacity as Managing Director of the
latter. The Claimant also demonstrated that Company ABC is owned by
Respondent 2’s daughter, Respondent 1 and Respondent l’s wife. Moreover,
the Claimant has submitted investigation reports ...
(i) showing that Respondent l’s wife and/or Respondent 1 spent entire days
on the premises of Company S, that Respondent 1 and Respondent 1’s wife
are actually the managers of Company S, and that they behave as such with
the latter’s clients;
(ii) confirming that Respondent 1 and Respondent 1’s wife behave as the actual
managers of Company S.
Employees of the investigation agency that made the reports confirmed the
authenticity of the reports when heard by the Arbitral Tribunal. The director
of the investigation agency expressly declared to the Arbitral Tribunal, in pres¬
ence of Respondent l’s wife, that she was the individual identified as such in the
reports. This was not denied by Respondent l’s wife.
[14] “Respondent 2 admits that the premises where Company S carries out its
business are leased to the latter by a company named ABC of which Respondent
1 is a 25 percent shareholder. Respondent 2 briefly disputes however the seri¬
ousness and veracity of the investigation reports and submits that Respondent 1
had sometimes 'assisted’ his wife in the latter’s activities. In their common reply
and post-hearing brief, Respondent 2 and Respondent 3 dedicate a few pages to
again dispute the seriousness of all three investigation reports. The Respondents
however never expressly deny that Respondent 1 acted in breach of the non¬
competition clause contained in Art. 11 of the Framework Agreement. In addi¬
tion, Respondent 1 chose neither to appear in these proceedings nor to defend
himself with respect to the alleged breach.
[15] “In light of the contractual non- competition clause as per Art. 11 of the
Frame Agreement, and in particular of Art. 11.1.(a) and (c) of the same, and the
clear undertaking of Respondent 1 (and Respondent 2) contained therein ‘not to
carry out, whether directly or indirectly, any trading or business activities which
may compete with the Seller Business’ and ‘not to act, whether directly or
indirectly, as director, agent or employee, assist, cooperate or consult with or
howsoever provide information to third parties, whether on a full or part time-
basis, in the Business and the Territory’, the Arbitral Tribunal is led to conclude

that Respondent 1 did breach the non-competition clause of Art. 11 of the

Framework Agreement.
[16] “In this respect, the Arbitral Tribunal therefore confirms the facts on
which the Court of Milan based its decision; a decision that has been upheld
by the Court of Appeal of Milan (injunction prohibiting Respondent 1 from
pursuing any competing activities) and again by the Court of Milan in its
subsequent decision (attachment proceedings).”
2. Compatibility of the Non-Competition Clause with E U and Italian

Anti-Trust Laws
(....)
a. Arbitrability
[17] “The first question that the Arbitral Tribunal must examine with respect
to the Respondent 3 and Respondent 2’s allegation of the nullity of the non¬
competition clause consists of the arbitrability of a dispute relating to anti-trust
laws.
[18] “The question of the arbitrability of anti-trust disputes has encountered a
decisive turning point with the famous American Mitsubishi decision of 1985.7
In this case, an arbitral tribunal sitting in Japan had to decide, under Swiss law, a
dispute between Mitsubishi and its Puerto Rican distributor Soler. Soler argued
that the issue of antitrust law (in that case, American) was not arbitrable. The
American Supreme Court decided that such a dispute must be held as arbitrable.
[19] “In Switzerland (the seat of the present arbitration, and therefore (a) the
law according to which the issue of arbitrability must be decided8 and (b) the
place where the arbitral award is first subjected to judicial control), the Supreme
Court has held on various occasions that the arbitral tribunal to which an anti¬
trust law issue is submitted must decide on the merits of such issue.9 The Swiss
Supreme Court indeed no longer questions whether issues of anti-trust laws
are arbitrable or not. In other terms, the Swiss Supreme Court implicitly admits
that an arbitral tribunal can declare that a determined agreement is contrary to
7. “472 U.S.614 (1985).”

8. “Art. 177 of the Private International Law Act (PIL Act).”
9. “See Swiss Supreme Court, decision of 13 November 1998, considération 1.a), no. 3, referred to in
Antonio Rigozzi, 'Arbitrage, Ordre Public et Droit Communautaire de la Concurrence, in ASA/
Bull 1999/1 pp. 455 et seq., 459 and fn. 15; more recently, Swiss Supreme Court, decision of
8 March 2006, ATF 132 III 389.”

■
■. ,'.' •-JlM-zl-M-l-. li vi -M22j5*7Zv&s&s"S .-

? -I

Art. 81(1) of the EU Treaty and declare it null in terms of Art. 81(2) of that same
Treaty.10
[20] “This being said, it is clear that the EU law is part of the public policy of
the lex causae, namely Italian law. As set forth by the Swiss Supreme Court: ‘the
arbitral tribunal must, in any event, comply with the public policy of the country
of which it must apply the law’.11
[21] “As to the arbitral tribunal’s powers with respect to the control of the
conformity of a given agreement with EU anti-trust law, the European
Commission has the power to order a cessation of the contravention by
means of fines or injunctions. However, when the agreement at hand has not
been notified to the Commission, the arbitral tribunal is fully empowered to
decide its conformity with Art. 81 of the EU Treaty.12
[22] “The conclusion to be drawn from this overview is that the Arbitral
Tribunal has full jurisdiction to decide on the validity of the non-competition
clause contained in the Framework Agreement in dispute under anti-trust leg¬
islation (both EU and Italian).”
b. Compatibility with EU competition rules
[23] “Art. 81 of the EU Treaty prohibits
‘all agreements between undertakings, decisions by associations of under¬

takings and concerted practices which may affect trade between Member
States and which have as their object or effect the prevention, restriction or
distortion of competition within the common market’.
Thus, Art. 81 of the EU Treaty applies exclusively to agreements limiting com¬

petition within the Union, in other words, in connection - directly or indirectly -
with interstate commerce. This connection has to be clearly demonstrated by the
entity claiming that an agreement violates Art. 81 of the Treaty.
[24] “In the case at hand, it is undisputed that the agreement concerned (the
Framework Agreement) relates to the (Italian) domestic market. The
Respondents do not allege, let alone prove, that the commerce concerned by
the Framework Agreement has a connection, directly or indirectly, with inter¬
state commerce. The Arbitral Tribunal must therefore conclude that Art. 81 of
the EU Treaty is not applicable to the non-competition clause under scrutiny.
10. “Antonio Rigozzi, op. cit., p. 460, with reference to Nico Spiegel, ‘EuGH: SchiedssprUche und
EG-Kartellrecht’', EuZW, 1999, p. 568; also ATF 132 III 389 quoted above.”
11. “ATF 120 II 155; ASA/Bull 1994 p. 419."
12. “See Antonio Rigozzi, op. cit., p. 460.”

[25] “Art. 82 of the EU Treaty sanctions the abuse of a dominant position in

the common market as follows:
‘Any abuse by one or more undertakings of a dominant position within the

common market or in a substantial part of it shall be prohibited as
incompatible with the common market in so far as it may affect trade
between Member States.’
Here again, the first condition to be fulfilled for the application of Art. 82 is that
the deal must relate to the common market. As already set out, the agreement
under scrutiny relates to the Italian (domestic) market only. The Respondents
never contended, let alone demonstrated, that the Framework Agreement truly
affects interstate commerce, be it directly or indirectly.
[26] “In addition, pursuant to the case law of the Court of the European
Communities, there cannot be a dominant position where the market share is
below 40 percent.13 In the case at hand, Respondents 3 and Respondent 2 and the
Claimant agree that the market share concerned was between 14 and 18 percent
in the relevant year. The Respondent 3 and Respondent 2 contend that Claimant
purchase of Company XYZ would ‘certainly’ have increased this share to
22 percent due to Claimant’s increase of turnover of 17.6 percent for the
following year. Respondent 3 and Respondent 2 draw this last figure from
Claimant’s report to the balance sheet for the following year.
[27] “It stands to reason that the market share of an enterprise can in no
possible way be based upon - directly or indirectly - its turnover, to which
the market share is entirely foreign. Indeed, Respondent 3 and Respondent 2
do not explain the link they make between turnover and market share. In addi¬
tion, even if one had to consider the figure of 22 percent alleged by Respondent 3
and Respondent 2 as fact, this figure remains much below the threshold of
40 percent set by EU practice and the case law mentioned above. Respondent
3 and Respondent 2’s reasoning therefore, can only be dismissed by this Tribunal.
[28] “Be that as it may, the extract of Claimant’s report to the balance sheet for
the following year filed by the Respondents mentioned above mentions the issue
of market share as follows (in free translation):
‘We consider that our efforts have resulted in a further reinforcement of our
position amongst the specialists in the field, who represent in any event less
than 30 percent of the market. The Italian market indeed continues to be
13. "See European Court of Juscice, decision of 3 July 1991 in rcAKZOv. Commissions decision of
13 February 1979 in re Hoffman La Roche v. Commission; Tribunal of First Instance, decision of
12 December 1991 in re Hilti v. Commission."

extremely fragmented, with a share hold by not specialized enterprises
superior to 70 percent.’
The conclusion to be drawn from this statement is clear: Claimant’s market

share is inferior to 30 percent of the relevant Italian market, no matter how it
is calculated, and is therefore below the threshold set by EU practice and case
law for the characterization of a dominant position.
[29] “The Parties’ limited turnover also makes inapplicable the third pillar of the
EU competition discipline, namely that relating to concentrations: i.e. Council
Regulation (EC) No. 139/2004 of 20 January 2004 on the control of concentra¬
tions between undertakings (the EC Merger Regulation). The Tribunal deems
worth noting that this Regulation submits all concentrations to the control of
the Commission when the concentration has an impact on competition within the
European common market.14 However, the Regulation provides in Art. 6(l)(b),
í ■
second paragraph, in Art. 8(1), second subparagraph and in Art. 8(2), third sub-
paragraph that a decision declaring a concentration compatible with the common
market ‘shall be deemed to cover restrictions directly related and necessary to the
implementation of the concentration’.
[30] “Thus it results from Notice 2005/C 56/0315 that only restrictions
necessary to the implementation of a concentration can be considered ‘ancillary’
to it and be cleared by the Commission together with the concentration itself.
Additional restrictions remain ‘to be assessed in accordance with Art. 81 and
Art. 82 EC Treaty and the related regulatory texts and notices. They may also be
subject to any applicable national competition rules.’ This statement is con¬
firmed in the notice as follows:
‘Hence agreements which contain a restriction on competition, but are not

considered directly related and necessary to the implementation of the
concentration pursuant to this notice, may nevertheless be covered by
those provisions.’
[31] "The EU discipline of restriction to competition provided for in the

Notice is clearly stated (at 18-20 of the same), and is summarized as follows:
‘Non-competition clauses are justified for periods of up to three years,

when the transfer of the undertaking includes the transfer of customer
14. F. Pocar, Commentario Breve ai Trattati della Comunità e dell’Unione europea, CEDAM,
Milano, 2001, ad Art. 81, note 9 p. 368.”
15. “Commission Notice on Restrictions directly related and necessary to Concentrations (2005/
C 56/03).”

loyalty in the form of both goodwill and know-how. When only goodwill is
included, they are justified for period of up to two years.’
[32] “The practice of the European Commission in the application of the rules ‘
is consistent and offers clear confirmation of the rule: non-competition clauses
are legitimate if they are limited to three years in the case of goodwill and know¬
how being transferred to the buyer, and are limited to two years in all other
cases.
[33] “Concluding in this respect, the Tribunal, having shown that there are no
grounds for the application of the EU rules in the case under scrutiny since the
latter does not relate to inter-member state commerce, shall now address the
question under the Italian antitrust law, and specifically Law 287 of 10 October
1990 (hereafter referred to as: Law 287/90).”
c. Compatibility with Italian competition rules
[34] “Italian antitrust Law 287/90 applies to agreements, dominant positions

and concentrations (Art. 1). The basic provisions are Arts. 2 and 3, which are the
equivalent of Arts. 81 and 82 of the EU Treaty, and Arts. 5 and 6 which relate to
concentrations, corresponding to the EC Merger Regulation referred to above.
Art. 1.4 of Law 287/90 provides that ‘the interpretation of the norms contained
in the present chapter [i.e. Arts. 1 to 9] is made on the basis of the principles of
the European Community regulations in matter of the discipline of competi¬
tion’. The Tribunal will therefore examine the relevant provisions of Law 287/90
in light of the EU rules and practices.
[35] “Art. 2 of Law 287/90 prohibits agreements that restrict the competition
entered into by enterprises or associations of enterprises, while Art. 3 of the Law
prohibits the abusive exploitation of dominant positions in the market.
[36] “The issue of concentration is governed by Arts. 5, 6 and 16 of Law 287/
90. Art. 5 provides the definition of ‘concentration’. In particular, Art. 5.b states
that a concentration is deemed to arise when ‘one or more persons controlling at
least one undertaking or one or more undertakings, acquire the direct or indirect
control of the whole or parts of one or more undertakings whether through the
acquisition of shares or assets, or by contract or by any other means’. It is clear to
the Tribunal that the Framework Agreement presently at issue fits this
definition.
[37] “Art. 6 of Law 287/90 dictates the ‘Prohibition on concentrations
restricting free competition’, when the competent Authorities ( Autorità
Garante della Concorrenza e del Mercato) ascertain that these concentrations
‘create or strengthen a dominant position on the domestic market with the effect
of eliminating or restricting competition appreciably and on a lasting basis’. Art.

H
16.1 of Law 287/90 sets precise thresholds for mandatory communication to the
Autorità Garante, namely that the total turnover made at national level by all
interested companies be superior to €258,228,449.54 or that the total turnover
made at national level of the company that is being sold be superior to
€ 25,822,844.95.
[38] “In the case under scrutiny, the Claimant has declared to the Tribunal that
no notification to the Italian Autorità Garante was required (nor indeed carried
out) according to Art. 16.1 of Law 287/90. In addition, whilst the Tribunal has
no information as to the total turnover of the interested companies in the Italian
market, the information provided by the Parties (and in particular the
£
Framework Agreement itself) shows that the sold company, Company XYZ,
was far from contributing to the figures required by Art. 16.1 of the Law
mentioned.
The conclusion to be drawn therefrom is that the Framework Agreement
constitutes a concentration as defined by Art. 5.b of Law 287/90, although
this was not communicated to the Autorità Garante due to an absence of the
required minimum dimension.
[39] “The question to be answered at this stage of the reasoning is henceforth
whether a non-competition clause falls within the scope of Law 287/90
notwithstanding the fact that the communication of the concentration at issue
was not compulsory under Art. 16.1 of the given Law. In other words, do the
basic prohibitions of Law 287/90 (Arts. 2 and 3) apply to non-competition
clauses contained in a concentration deal not subject to the scrutiny of the
Autorità Garante ?
[40] “In this respect the Tribunal makes reference to the Commission Notice
on restrictions directly related and necessary to concentrations (2005/C 56/03)
mentioned above, which is part of the body of European competition law that
must be used for the construction and application of Law 287/90 as per Art. 1.4
of the latter. This Notice contains a clear statement to the effect that the approval
by the Commission of concentration agreements automatically covers only the
restrictions to competition which are ancillary and necessary to the implemen¬
tation of the concentration. By contrast,
‘for restrictions that cannot be regarded as directly related and necessary to

the implementation of the concentration, Arts. 81 and 82 of the EC Treaty
remain potentially applicable. . . . The mere fact that an agreement or
arrangement is not deemed to be ancillary to a concentration is not, as
such, prejudicial to the legal status thereof. Such agreements or arrange¬
ments are to be assessed in accordance with Arts. 81 and 82 of the EC
Treaty and the related regulatory texts and notices. They may also be
subject to any applicable national competition rules. Hence, agreements

which contain a restriction on competition, but are not considered directly

related and necessary to the implementation of the concentration pursuant
to this Notice, may nevertheless be covered by those provisions.’16
Furthermore, the Commission Notice discussed here states that:
‘Disputes as to whether restrictions are directly related and necessary to the

implementation of the concentration, and thus automatically covered by
the Commission’s clearance decision may be resolved before national
courts.’17
[41] “The Arbitral Tribunal recalls that the substantive Italian (and European)
competition rules are part of the law to be applied in order to solve the present
dispute. The relevant rules are compulsory for enterprises, and must be applied
by antitrust authorities, state courts and/or arbitral tribunals, according to their
respective functions and powers. In the case at hand, any such antitrust authority
(in the present case the Autorità Garante) is not competent for reason of the
absence of the necessary prerequisites, i.e. the dimension of the acquisition. The
substantive rules however remain valid, applicable and enforceable, and must be
abided by the addressees and applied by the other competent organs, i.e. judicial
courts or arbitral tribunals.
[42] “In this respect the Tribunal finds worth recalling that in the present case
the parties have included in Art. 11.1 (penultimate paragraph) an express
provision as to the consequences of a possible partial annulment or modification
of the non-competition clause ‘by any court or authority of competent juris¬
diction’. Therefore, the parties themselves were fully aware, and had even
expressly foreseen, that judicial courts or other competent authorities (surely
including the Arbitral Tribunal to which the settlement of disputes was con¬
ferred) could be called to verify the validity and enforce the non-competition
clause of Art. 11. And that in a context where the parties considered that their
concentration did not possess the necessary prerequisites to be subjected to the
scrutiny of both the European Commission and the Italian Autorità Garante.
[43] “The direct application of the Italian competition rules to the Framework
Agreement by the Tribunal means that the Tribunal has not to evaluate the
concentration in itself, but only its non-competition clause according to the
criteria provided for by Law 287/90, taking into account that this Law is shaped
and must be constructed and applied following the European model.
16. "92 Commission Notice 2005/C 56/03, no. 7.”

17. "Commission Notice 2005/C 56/03, no. 2.”

-- rÿrrÿíP7¿:~ -- - ■

[44] "As for concentrations, the European rules are those stated in the Notice
on restrictions directly related and necessary to concentrations described above.
Thus only non-competition clauses that are limited to three years if goodwill
and know how is transferred, and that are limited to two years in all other cases,
are legitimate and enforceable.18 The practice of the Italian Autorità Garante
fully complies with, and indeed makes direct application of, these EU rules as
shown by numerous decisions on concentration which were communicated to
the Autorità.13
[45] “In the present concentration deal the Parties agree that there was no
transfer of goodwill and know-how to the buyer. Therefore, the clause can
be considered ‘ancillary’ to the concentration and accordingly automatically
legitimate for two years only. For the remaining period contractually stipulated
in Art. 11 of the Framework Agreement, the evaluation must be conducted on
the basis of the general rules incorporated in Arts. 2 and 3 of the Law 287/90.
Excluding Art. 3 of the Law, because no sufficient evidence of a dominant
position by Claimant has been presented to the Tribunal, the evaluation must be
conducted according to Art. 2 which relates to agreements restricting
competition.
[46] "In this regard the Tribunal notes that the contractual engagement not to
compete contained in Art. 11 of the Framework Agreement clearly falls within
the prohibition of Art. 2 of Law 287/90. This is due to the fact that the restriction
on competition caused by the engagement is ‘consistente’ [sizeable], as requested
by Art. 2.2 because the share of Claimant in the relevant market, admitted by
Claimant itself, is between 14 and 18 percent. Respondent 3 and Respondent 2
claim that this share is approximately 25 percent, but this is not a decisive point
in view of the fact that the market share necessary for the application of the
general exception ‘de minimis’ is 10 percent.20
[47] “In this respect the Tribunal notes that
(a) the Notice 2001/C 368/07 referred to here clarifies that, ‘Although
not binding on them, this notice also intends to give guidance to the
18. “See Commission Notice 2005/C 56/03, no. 20 and Commission Decision of 12 April 1999 (IV/
M.1482 - King Fisher/Grosslabor, no. 26); Commission Decision of 14 December 1997 (IV/
M.884 - KNP BT/Bunzl/Wilbem Seiler no. 17).”
-
19. "C. 7488 - MCC - Soflpa Societa di Gestione del Risparmio Vending Sistem Italia Prowedi-
mentono. 15144; C. 7666 - Thyssenkrupp Airport Systems/ Ramo diAziendadiTeam Tecnología
europea applicata al movimentoTrabosa - Provvedimento no. 15435.”
20. "Commission Notice on agreements of minor importance which do not appreciably restrict
competition under Article 81(1) of the Treaty establishing the European Community {de mini¬
mis) (2001/C 368/07), Art. 7(a).”
Reprinted from the Yearbook Commercial Atbitration 559

and authorities of the Member States in their application of

courts
Art. 81’;21 and
(b) this Notice indeed constitutes a basic parameter for the construction, appli¬
cation and enforcement of the entire Law 287/90 and, specifically, of the
definition of ‘restrizione consistente' to competition requested by Art. 2.2
of the Law.
[48] “In conclusion the Arbitral Tribunal finds that the five years non¬
competition clause of Art. 11 of the Framework Agreement is null and void
for the part exceeding the restriction of two years which is to be considered
legitimate as ancillary and necessary to the concentration deal in conformity
with both European and Italian law, and practice on concentrations. The restric¬
tion for the additional three years constitutes a violation of Art. 2 of Law 287/90
interpreted and applied in conformity with the principles of the European legal
order concerning competition (Art. 1.4 of the Law).
[49] “It is hereby noted that the reasoning above and the conclusion deriving
therefrom express the opinion of the majority - and not the unanimity - of the
Arbitral Tribunal.”
3. Formal Validity of Non-Competition Clause under Italian Law
[50] “Respondent 2 and Respondent 3 contend that Art. 1341 It.cc provides
that any restriction to contractual freedom requires a formal and written
approval from the obligee. According to the Respondents mentioned, such
approval must be separate and distinct from the underwriting of general con¬
ditions of a contract predisposed by the other party.22 Respondent 2 and
Respondent 3 allege that the signatures of the Framework Agreement do not
comply with the requirements set forth in Art. 1341 It.cc. The Respondents
mentioned infer therefrom that the non-competition clause is null and void
under Italian law.
[51] “In answer thereto, Claimant states that the Framework Agreement was
not a ‘unilateral’ predisposed act, but an agreement negotiated in the course of
various meetings over several months. A letter of intent was executed more than
seven months before the execution of the Framework Agreement. The Letter of
Intent already contained the key elements of the Framework Agreement. That
aside, throughout the negotiations, the Respondents were legally advised by a
21. “Commission Notice 2001/C 368/07, Art. 1.4.”

22. "Respondents’ answers, with reference to Cass. 23657/04; Cass. 23560/04; Cass. 13807/04;
Cass. 13359/04; Cass. 9990/90; Cass. 6340/90; Cass. 742/80; Cass. 1009/80; Cass. 4680/80;
Cass. 1141/69.”

™&&2323EWS533SL

lawyer. In addition, the Public Deed of Transfer reiterated the non-competition
clause contained in the Framework Agreement.
[52] “Referring to Italian caselaw,23 the Claimant asserts that clauses
contained in agreements executed by public deeds cannot be considered as
general conditions of contracts under Art. 1341 It.cc and therefore, in no
event require any specific written approval.
[53] “Art. 1341 of the It.cc provides that:
‘Standard conditions prepared by one of the parties are effective as to the

other, if at the time of formation of the contract the latter knew of them or
should have known of them by using ordinary diligence.
In any case conditions are ineffective, unless specifically approved in
V writing, which establish, in favour of him who has prepared them in
advance, limitations on liability, the power of withdrawing from the con¬
tract or of suspending its performance, or which impose time limits involv¬
ing forfeitures on the other party, limitations on the power to raise
defences, restrictions on contractual freedom in relations with third parties,
tacit extension or renewal of the contract, arbitration clauses, or deroga¬
tions from the competence of courts.’
[54] “There is no doubt in the Arbitral Tribunal’s view that the non-compe¬
tition clause contained in the Framework Agreement constitutes a ‘restriction to
the contractual freedom in the relationships with third parties’ and therefore
falls within the scope of Art. 1341 It.cc mentioned above. However, pursuant to
constant Italian case law:
(i) the conditions of Art. 1341 It.cc are met only and to the extent that the
conditions set by one of the parties to the contract are conditions used for
an unlimited number of contracts of the same type. Conversely, Art. 1341
It.cc finds no application where the contract at hand constitutes a specific
and unique contract;24
(ii) there is no necessity of the so-called ‘doppia firma (double signature) (i.e.
a formal acceptance of the clause at stake, in addition to the formal sub¬
scription of the contract itself) where the conclusion of the agreement has
been preceded by actual negotiations;25
23. “Claimant’s post-hearing brief, with reference to Cass. 21 September 2004 no. 18917, Giust. Civ.
Mass. 2004; Cass. 21 January 2000 no. 675, Foro It. 2000, 1.1153."
24. “Cass. 86/230; Cass. II 04/23560.”
25. “Cass. 91/4638; Cass. 88/3091; Cass. 87/136; Cass. 86/4847; Cass. 82/2428; Cass. 1 04/23560.”

(Hi) the very scope and purpose of the rule is to ascertain the contracting
party/parties' actual knowledge of the contractual clause restricting its
freedom, a knowledge that cures the absence of ‘doppia firma'.26
[55] “In the case under scrutiny, the Claimant denies the characterization of
‘General Conditions of Contract’ to the Framework Agreement. According to
the Claimant, the Framework Agreement had been specifically drafted and
negotiated for the acquisition by the Claimant of the XYZ network and the
regulations of the relationships between the Claimant and the Respondents in
that respect. The Claimant explains that the negotiations lasted several months,
and indeed submitted to the Arbitral Tribunal the ‘Heads of Agreement’
(Lettera di Intenti) dated seven months before the Framework Agreement
was actually executed, that already contained the general terms of the non¬
competition clause in dispute. The Claimant further alleges (without being con¬
tradicted by the Respondents) that the Respondents were assisted throughout
the negotiations by an Attorney from Rome.
[56] “In such circumstances (that are not disputed by the Respondents), the
Arbitral Tribunal can only conclude that there had been concrete negotiations
amongst the Parties to the Framework Agreement (the Framework Agreement
is in fact much more elaborated than, and partially different from, the Heads of
Agreement) and that the Framework Agreement can in no possible way be
characterized as ‘General Conditions of Contract’ in the meaning of Art.
1341 It.cc quoted above.
[57] “In addition, there is no possible doubt in the opinion of the Arbitral
Tribunal, that the Respondents were perfectly aware of the non-competition
clause under scrutiny. This knowledge is demonstrated by three distinct factors:
(i) as set out above, the clause (in general terms) was already contained in the
Heads of Agreement;
(ii) the clause is contained - in unambiguous terms - in the Framework
Agreement;
(iii) the clause is again confirmed in the public Deed of Transfer that was
resigned by all of the Respondents, being emphasised that the non-com¬
petition clause of Art. 11 of the Framework Agreement is entirely repro¬
duced in this Deed of Transfer. It is worth emphasizing here that pursuant
to Italian case law, Art. 1341 It.cc is not applicable where, as it is the case
here, the agreement has been made by public deed.27
26. "See Genovese, Contratto diAdesione, [entry in Enciclopedia del Diritto]."

27. "Cass., Chamber 1, 21 September 2004, no. 18917; Cass., Chamber III, 21 January 2000, no. 675,
no. 1.”

—
7.7777/ : -T-l-'.vr 77.7J IÿÿíÿCTPíIMKR..
In addition, the knowledge by the Respondents of the non-competition clause is

confirmed by Respondent l’s letter to Claimant whereby he formally asks the
latter to be (partially) freed from the non-competition obligation contained in
[58] “Ex abundanti cautela, the Arbitral Tribunal notes that the requirement
of the double signature is held as complied with when, as it is the case for the
Framework Agreement under scrutiny, every and all pages of the contract are
signed in addition to the signatures at the end of the contract.28
[59] “For the aforementioned reasons, the Arbitral Tribunal must conclude
A" that Art. 1341 It.cc is not applicable in the case at hand. Respondent 3 and
Respondent 2’s argument that the non-competition clause is to be declared
null and void for non-compliance with the conditions set in this legal provision
can therefore only be rejected.”
4. Penalty Clause
[60] “In addition to Respondent 3 and Respondent 2’s allegation that the
nullity of the non-competition clause automatically triggers the nullity of the
penalty clause (argument that does not need to be addressed since this Tribunal
has concluded that the non-competition clause is valid for a period of two years),
the Respondents mentioned allege that the penalty clause is obviously excessive
and must be reduced ex aequo et bono in accordance with Art. 1384 It.cc.
Respondent 3 and Respondent 2 contend that the reduction can be effected
ex officio.29
[61] “The Claimant answers the Respondents’ allegations mentioned above by
stating that Art. 1384 It.cc indeed allows the judge to reduce an excessive penalty
taking into account the interest of the concerned party to the performance of the
obligation connected thereto. The Claimant explains that, pursuant to Italian
case law
‘The principle which the judge has to consider when exercising its power to
reduce the penalty is not the performance considered abstractly as such, but
the interest that the party has, in relation to the circumstances, to the exe¬
cution of the performance to which it has the right, taking into account the
consequences of the non-performance on the balance of the mutual
28. "Cass., Chamber 1 17 December 2004, no. 23560, no. 5.1.”

29. "Respondent l’s answer, with reference to Cass. civ. Plenary Sessionno. 18128/05; R3,pp. 17 and
18, with reference to Cass. civ. Plenary Session no. 18128/05; Cass. 3998/03; Cass. 7528/02; Cass.
6380/01; Cons. Stato 11 January 1996, no. 3157.”
I
obligations and of the actual incidence of the non-performance on the very

contractual situation.’30
The Claimant also contends that the Supreme Court specifies that the judge has
to consider the party’s interest to the performance and not the strict and sole
amount of the damages suffered.31 In addition, the judge should avoid an eval¬
uation of the damages effectively suffered by the party.32 Thus the judge has to
take into primary consideration the creditor’s interest to the performance at the
moment of the closing of the contract.33
[62] "In light of these principles, the Claimant explains that the main subject
matter of the acquisition was the trade mark ‘XYZ’ and its commercial network,
which necessarily involved the acquisition of the goodwill of the business pur¬
chased. Claimant paid approximately €5 million for that purchase. In addition,
as specified in the Framework Agreement, Claimant entered into various agree¬
ments with various companies directly or indirectly connected to the
Respondents’ family for the acquisition of a number of franchisees of
Company XYZ for a further consideration of €3 million. These agreements
have to be considered as part of the acquisition of the XYZ network.
[63] “Thus, the penalty was aimed at securing the permanent and total acqui¬
sition by Claimant of the goodwill of the business. In this respect (and even if the
damages caused by the breach of the non-competition clause cannot be
assessed), the amount of the penalty must be held as fair. Consequently, the
reduction of the same under Art. 1384 It.cc requested by Respondent 3 and
Respondent 2 must be rejected.
[64] “Art. 1384 It.cc provides that:
‘The penalty can be reduced equitably by the judge if the main obligation
has been implemented partially or if the amount of the penalty is manifestly
"i
30. “Claimant’s post-hearing brief, with reference in particular to: Cass. 26 March 1997, no. 2655,
Giust. Civ. Mass. 1997, 460; Cass. 5 November 2002 no. 15497, Giust. Civ. Mass. 2002, 1909;
Cass. 3 November 1999 no. 9298, Giust. Civ. Mass. 1999, 1897; Cass. 26 March 1997 no. 2655,
Giust. Civ. Mass. 1997, 460; Cass. 4 December 1982 no. 6643, Giust. Civ. Mass. 1982; Cass.ll
June 1981 no. 3789, Giust. Civ. Mass. 1981.”
.
31 “Claimant’s post-hearing brief, with reference to Cass. 23 May 2002, no. 7528 Giust. Civ. Mass.
2002, 905; Cass. 8 May 2001 no. 6830, Giust. Civ. Mass. 2001, 940; Cass. 14 April 1994 no. 3475,
Giust. Civ. Mass. 1994, 483.”
32. “Claimant’s post-hearing brief, with reference to Trib. Como 10 March 2005, Redazione Giuffrè
2005.”
33. “Claimant’s post-hearing brief, with reference to Rescigno, Trattato di Diritto Privato, Obbli-
gazioni e Contratti, II. Torino, 2004, 452 et seq.”

.-i

excessive, taking always into account the interest that the creditor had in the
implementation.’
It is noted that after some hesitation, the case law confirms that the judge can
also reduce the penalty on his/her own initiative.34
[65] “The criteria according to which the court has to weigh the penalty and,
as the case may be, reduce it, can be summed up as follows: the judge has to take
into consideration the interest of the party in the implementation of the perfor¬
mance to which it is entitled, on the one hand, and the consequences of the
violation of the obligation to perform on the balance of the services contractu¬
•it
ally agreed upon and the effective impact of the violation on the interest to the
performance of the party concerned, on the other. The latter must be evaluated
not only at the time of the agreement, but also at the time of the violation itself.35
With respect thereto, the duration of the said violation has to be taken into
account.36
[66] “In applying these criteria to the facts under scrutiny, the Arbitral
Tribunal notes that:
(i) with respect to the contractual balance at the time the Framework Agree¬
ment was made, the amount of the penalty (€3,000,000) represented more
than half of the price paid for the company (Company XYZ was acquired
for € 5,000,000, paid mainly through assumption of obligations). The
Tribunal notes that the amount of the penalty, while justified by Clai¬
mant’s interest in the performance of the non-competition clause by the
Respondents, represents a substantial amount for the Respondents, who
clearly do not have the same economic conditions as the Claimant;
(ii) with respect to the violation of the non-competition clause that took place
shordy after the conclusion of the Framework Agreement, the Claimant
did not show (and indeed did not allege) that such a violation had any
impact whatsoever on the development of its business. Quite to the
contrary, the facts of the case show that the Claimant’s business increased
significantly after the purchase of Company XYZ through the Frame¬
work Agreement. This situation is consistent with the breach ascertained
by this Tribunal that, whilst the Respondents’ activities constitute a clear
violation of the contractual obligations which they freely and validly
accepted, the facts of the case show that the consequences of this breach
34. "Cass. 10511/99; Cass. 8188/03; Cass. Plenary Session 18128/05."

35. “Cÿss. Chamber III, 3 September 1999, no. 9298.”
36. "Cass. Chamber II, 23 May 2002, no. 7528.”

remain limited to the activity developed in a small company (Company S,

with a share capital of €20,000) whose activity is restricted to a limited
geographical area;
(iii) that the duration of the non-competition clause, initially of five (5) years,
has to be legally reduced to two years. This decision implies that the
duration of the violation cannot exceed two years.
[67] “For the reasons set out above, the Arbitral Tribunal might substantially
reduce the penalty at stake,37 albeit the fact that the duration of the non¬
competition clause as reduced by the Arbitral Tribunal cannot be considered -
pursuant to the constant case law mentioned - as a factor in this respect. However,
the Arbitral Tribunal holds that Respondent l’s violation of the non-competition
clause shordy after the Framework was entered into, and continuing violation of
this same clause even after the issuance, by the Court of Milan, of the order
prohibiting to the Respondents the carrying on of any competing activity, is
simply unacceptable under the principle of good faith prevailing in commercial
relationships.
[68] “For all these reasons, the majority of the Arbitral Tribunal concludes
that the penalty clause must be reduced by €1,500,000 (one and a half million
Euros) only. Thus, the Respondents will be ordered to pay to the Claimant a
penalty of €1,500,000 (one and a half million Euros).
[69] “The Claimant asks that interest be added to the amount of the penalty.
The Claimant does not give any indication as to the rate and period of such
interest.
Art. 10.5 of the Framework Agreement provides for interest
‘on any amount to be paid pursuant to Art. 10.1 ... at 6 percent (the Agreed
Rate) for the period comprised between the date on which any liability, loss
or damage to be indemnified thereunder is actually . . . incurred by the
Buyer and the 5th Business Day following the date on which demand
for the payment of such indemnity is made in writing to the Buyer and
thereafter at a rate per annum equal to 1.5 percentage points over the
Agreed Rate until payment is actually received by the Buyer’.
[70] “According to the evidence brought in these proceedings, the violation

(and therefore the right to the penalty) is ascertained for the first time on the date
37. “Cass. Chamber II, 26 March 1997, no. 2655, where the penalty of ITL 500,000.- per day as from
30 October 1989 up to the date of enforcement of the judgement has been reduced altogether to
ITL 10,000,000.”

«
of the first investigation report evidencing the violation of the non-competition

clause. This date must therefore be held - pursuant to Art. 10.5 of the
Framework Agreement quoted above - as the starting date of the computation
of interest due on the penalty.
[71] “As regards the moment at which the demand for payment of the penalty
was made, the Tribunal - on the basis of the facts and evidence produced -
concludes that the demand was first made with the Request for Arbitration.
[72] “Therefore, the penalty in the amount of €1,500,000.- will bear interest at
the rate of 6 percent (the Agreed Rate) from the date of the first investigation
report until the date of the Request for Arbitration, plus 1.5 percentage points
over the Agreed Rate of 6 percent until payment is actually made by the
Respondents.”
5. Joint and Several Liability of the Warrantors

[73] “Respondent 3, one of the warrantors under the Framework Agreement
disputes that the Agreement ever implied a guarantee with respect to the penalty.
Respondent 3 in particular was only a 3 percent shareholder in Company XYZ.
He was not in a position to control the main shareholders’ (Respondent 2 and
Respondent 1) behaviour. Respondent 3 had never undersigned the non¬
competition clause. He could only guarantee (like the other warrantors) the
obligations which may concern him directly. According to Respondent 3 alle¬
gation, this was not the case for the non-competition clause and the penalty
connected thereto.
[74] “The Arbitral Tribunal cannot follow Respondent 3’s reasoning when
declaring that he did not undersign the non-competition clause or any of the
clauses contained in the Framework Agreement. For the reasons set out above,
based on the facts and documents of the case, it is clear that all the Respondents
validly and consciously (in the meaning of Art. 1341 It.cc) executed the
Agreement and each and any of the clauses contained therein. Therefore, Art.
10.1 of the Framework Agreement providing for a joint and several liability of
the Seller and the Warrantors (i.e. all the Respondents) for all and any conse¬
quences of all and any breaches of all and any covenants or undertakings to be
performed under the Agreement must be held as binding upon all the
Respondents, jointly and severally.
[75] “The Court of Milan stated in its decision of attachment that Respondent
5 was not to be included in the order. In addition to the fact that the decision was
of a provisional nature by essence, on the one hand, and that the summary
analysis by the Court leads to a confusion between the non-competition clause
and the clause of warranty contained in the Framework Agreement on the other,
the Tribunal notes that Respondent 5 has chosen not to participate in the

arbitration proceedings. In the absence of any conclusion by the Respondents

aimed at excluding the liability of Respondent 5, the Tribunal is bound to sustain
the conclusion reached of the joint and several liability of all the Respondents for
any breaches of the Framework Agreement.”
III. COSTS
[76] “Claimant asks to be indemnified of the arbitration fees, the costs

incurred in presenting the interim injunction applications before the Court of
Milan and its case before the arbitration Panel; the attorney’s fees incurred and
all other expenses, not limited to the legal and accountancy relevant costs
occurred as a consequence of the dispute. Upon request of the Arbitral
Tribunal, the Claimant submitted its Statement of Costs together with a
Note. The Respondents did not file any statement of costs. The Claimant’s
costs as per the Note are the following:
Procedure for an Interim Injunction before the Court

of Milan (court costs and attorney’s fees) € 33,554.79
Appeal procedure against the decision rendered by the
Court of Milan (court costs and fees) € 22,935.31
Sequestration proceedings € 43,781.41
Execution of sequestration (City A) € 8,465.79
Execution of sequestration (City B) €
9,122.50
Execution of sequestration (City C) €
8,009.10
Arbitration proceedings (costs and fees) € 67,261.14
Arbitration administrative costs and Tribunal fees US$ 225,000.00
(plus interest calculated at the Italian rate from the date of the payment made
by Claimant to the International Chamber of Commerce on behalf of the
Respondents to the date of payment of the sum due by the Respondents to
Claimant).
Grand Total €193,130.04 and US$ 225,000
[77] “Arts. 31.1 and 31.3 of the ICC Rules applicable to the case read as
follows:
‘1. The costs of the arbitration shall include the fees and expenses of the
arbitrators and the ICC administrative expenses fixed by the Court ... as
well as the fees and expenses of any experts appointed by the Arbitral
Tribunal and the reasonable legal and other costs incurred by the parties
for the arbitration.

¡2£;-S325?Hí5
Hi

3. The final award shall fix the costs of the arbitration and decide which of
the parties shall bear them or in what proportion they shall be borne by the
parties.’
As pointed out by the prevailing doctrine:
‘This wording is intended to permit the arbitrators the greatest possible

discretion in fixing the costs of the arbitration pursuant to Art. 31(3) ... the
manner in which the relevant language of Art. 3(1) should be construed is
r left to the appreciation of the arbitrators in each case.’38
[78] “In this respect, the Tribunal is bound neither by the substantive law
applicable to the Agreement in dispute nor by the procedural law of the place
of arbitration. Likewise, the Tribunal is not compelled to follow the rule ‘costs
follow the event’.39
[79] “Typically, the ‘legal and other costs’ include such items as the fees and
expenses of legal counsel, the costs of experts, consultants and witnesses, and
other costs associated with the production of documents. The allowability of
costs associated with ancillary judiciary proceedings is increasingly accepted.
Thus in ICC Case no. 6345 (1991), the Arbitral Tribunal held that the fees
incurred for the (failed) negotiation preceding the arbitration were part and
parcel of the ‘arbitration costs’. Likewise, in ICC Case no. 6959 (1992), the
Tribunal held that all costs (i.e. not limited to the assistance to the arbitration
proceedings), had to be taken into account.
[80] “In light of the principles recalled above, the Arbitral Tribunal considers
first that the costs and fees incurred in the judicial proceedings initiated by the
Claimant were made to have
(i) a Court Order prohibiting to the Respondents to condnue to breach the

non-competition clause and
(ii) the Respondents’ assets attached to secure the payment of the penalty
clause have to be considered as part of the arbitration costs.
This conclusion is all the more justified in that it is common understanding that
the costs incurred for a defence are to be characterized as ‘damages’.40
38. "Yves Derains, Eric A. Schwarz, A Guide to the ICC Rules of Arbitration, Kluwer, 2nd ed.,
p. 366.”
39. "W. Laurence Craig, William W. Park, Jan Paulsson, International Chamber of Commerce
Arbitration, Oceana Publications Inc.,NY, 3rd ed., 2000, no. 21.04 pp. 393 and 395.”
40. "W. Laurence Craig, William W. Park, Jan Paulsson, op. cit., no. 21.04, p. 294.”

[81] “The Framework Agreement indeed provides that Claimant will be

indemnified for ‘any loss, damage, claim, proceedings . . . ’.
[82] “As to the amounts claimed, the Tribunal holds that the costs claimed by
Claimant are reasonable in the meaning of Art. 33.1 of the ICC Rules. The
Claimant indeed had to revert on three occasions to the ordinary courts to
have (i) the order (and confirmation of the same) to the Respondents to stop
their competing activities in breach of the Framework Agreement and (ii) the
amount of the penalty attached and the attachments executed in various fora.
With respect to the arbitration proceedings that lasted one full year, the
Claimant developed an in-depth defence and had to participate in the hearing
of witnesses.
[83] "With respect to the allocation of such costs, the Tribunal notes that
whilst winning on the principle of its claims (i.e. the breach of the non-compe¬
tition agreement by the Respondents, the validity as such of the non-competi¬
tion clause, and the validity as such of the penalty clause), the Respondents
won on both the partial invalidity of the non-competition clause (that has
been reduced from 5 to 2 years) and the reduction of the penalty (from
€3,000,000 to €1,500,000).
[84] “In such circumstances, it seems reasonable to apportion the Claimant’s
costs and fees in the amount of €193,130.04 and the arbitration administrative
expenses and the fees of the tribunal as fixed by the ICC Court in the amount
of US$ 225,000.- as follows: 70 percent to be paid by the Respondents and
30 percent to be supported by the Claimant. As a result, Respondents will
have to pay to the Claimant
(a) the amount of €135,191 as participation to the latter’s costs and fees and
(b) the amount of US$ 175,000 as participation to the arbitration administra¬
tive expenses and arbitral tribunal’s fees.
In the absence of any indication on the Respondents’ side, the Tribunal cannot
-
take any decision on the costs incurred - as the case may be by the Respondents
in these proceedings.
[85] “The Claimant further requires that interest be paid on the advance on
arbitration costs that it had to pay to the ICC in lieu of the (defaulting)
Respondents. The Claimant indeed had to pay both its own share on advance
towards costs to the ICC in the amount of US$ 125,000 and the Respondents’
share in the same amount of US$ 125,000.
[86] “Art. 30.3 of the ICC Rules indeed provides that:
‘The advance on costs fixed by the Court shall be payable in equal shares by
the Claimant and the Respondent.’

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The prevailing doctrine and case law affirm the contractual nature of this
provision.41
[87] “In a communication of 1 January 1993 on Cost and Payment, the
Secretary General of the ICC Court of Arbitration declares:
‘it is not an accepted practice in ICC arbitration for a party to refuse to pay
all or part of its share of the advance on costs and to leave it to the other
party to pay for the defaulting party. ... The fact of nonpayment will be
brought to the attention of the arbitral tribunal so that it may be taken into
¿V account in fixing the final costs of the arbitration.’
This note is a consequence of both parties’ obligation to pay the advance on

costs, an obligation that results from both parties agreeing to the ICC arbitration
Rules.42
[88] “The Tribunal is of the view that the Claimant’s claim for interest on the
amount paid in lieu of the Respondents corresponds to an actual damage result¬
ing from the latter’s breach of its contractual obligation as per Art. 30.2 of the
ICC Rules quoted above, and is therefore justified. The Respondents will there¬
fore have to pay to the Claimant interest at the Italian legal rate on the amount of
US$ 125,000 as from the date on which Claimant paid in lieu of Respondents
until the date of notification of the present award.”
IV. AWARD
[89] “(1) The non-competition clause contained in Art. 11 of the Framework

Agreement is valid and binding upon Respondent 1 and Respondent 2 for a
duration of two years as from the date of the Agreement. This non-competition
clause has ceased to be effective [two years after the Framework Agreement was
signed];
(2) The non-competition clause referred to above has been breached by
Respondent 1;
(3) The penalty clause contained in Art. 11.3 of the Framework Agreement is
valid and binding upon all the Respondents;
(4) All the Respondents, jointly and severally, must pay to the Claimant the
amount of € 1,500,000 (one and a half million) for the penalty together with
interest at the rate of 6 percent as from the date of the first investigation report
41. "See Micha Buhler, 'Non-payment of the advance on costs by the respondent party - is there
really a remedy?’, in ASA/Bull. 2/2006 pp 290 et seq.”
42. "See e.g. ICC Interim Award, 26 March 2002, in ASA/Bull 4/2003 pp. 803 et seq.; ICC, Interim
Award, 27 March 2001, in ASA/Bull 1/2001, pp. 205 et seq.”

~
:
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-
until the date of the Request for Arbitration, plus 1.5 percent over the said rate
until payment is actually made by the Respondents;
(5) All the Respondents, jointly and severally, must pay to the Claimant the
amount of €135,191 corresponding to 70 percent of the costs and fees incurred
by the Claimant for its defence in the present arbitration and in the court pro¬
ceedings in Italy;
(6) All of the Respondents, jointly and severally, must pay to the Claimant
interest at the Italian rate on the amount of US$ 125,000.- (one hundred twenty
five hundred) as from the date on which Claimant paid in lieu of Respondents
until the date of the notification of the present Award;
(7) All the Respondents, jointly and severally, must pay to the Claimant
70 percent of the arbitration costs fixed by the ICC Court in the amount of
US$ 225,000, namely US$ 175,000.
[90] “Any and all other claims by the Parties are dismissed.”

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Parties: Claimant: Assignee of buyer (Republic of Korea)

Respondent: Seller (Australia)
Place of Vienna, Austria

arbitration:
Subject matters: - competence-competence

- applicable law to validity of arbitration clause
- interpretation of ambiguous arbitration clause
- applicable law to assignment
- assignment of contract and arbitration clause
- liquidated damages
- rate of interest
Summary
The arbitrator dealt with a poorly drafted sales contract that, inter alia,
referred to non-existent ICC rules and omitted the ICC’s name from
•what was essentially a standard ICC arbitration clause. Deciding on his
own jurisdiction on the basis of the principle of competence-competence,
the arbitrator examined the validity of the arbitration clause under the
applicable law, which he found to be English law ( the law applicable to
the contract ), in the absence of a different choice by the parties. He inter¬
preted the clause to mean ICC arbitration in Vienna because of the frequent
references to ICC rules in the contract and the similarity of the clause to
the standard ICC arbitration clause. He then found that the rights under the
contract, including the arbitration clause, had been validly assigned to the
present claimant. On the merits, the arbitrator awarded the claimant
damages on the basis of the liquidated damages clause in the contract,
which was triggered by the seller’s failure to deliver the goods timely, com¬
pensation for the costs of opening a letter of credit and interest on both sums,
as well as 85 percent of costs of the arbitration and claimant’s legal fees.

The Australian Seller entered into a sale and purchase contract (the Sale
Contract) with Buyer Company A for the delivery of certain goods within a
time limit of sixty days. Clause 19 of the Sale Contract provided that in case of
delay Seller would pay to Buyer 0.1 percent of the cost of the undelivered goods
for each day of delay, up to a maximum of three percent of that cost. Clause 22
provided that the Sale Contract was governed by English law; it further
provided “for arbitration in Vienna, Austria in accordance to the rules of
arbitration”.
Buyer Company A opened an irrevocable letter of credit for the sale price
with Bank Z for the benefit of Seller, as provided for in the Sale Contract. Both
the Sale Contract and the letter of credit were subsequently modified at the
request of Seller, which faced problems in delivering the goods within the con¬
tractually agreed time: the date for shipment was extended and the sale price
reduced, and the letter of credit was confirmed by a second bank, Bank Y.
Seller failed to deliver the goods also on the extended date. By a fax sent
shortly thereafter (the renunciation fax), Seller informed Company A that it
would not be able to deliver the goods and would, therefore, return the letter
of credit. In reply, Company A sent a debit note to Seller asking for three percent
of the sale price as liquidated damages for non-delivery (the liquidated damages
request). Several attempts to reach an amiable setdement failed.
Company A subsequently entered into an Agreement for Release and
Assignment (the Assignment Agreement) with the present claimant
(Assignee), by which it agreed to assign all claims it had against Seller to
Assignee against payment of a smaller sum than the sum it claimed from
Seller. Assignee then filed a request for arbitration with the ICC, seeking the
amount of liquidated damages and interest thereon from the date of the liqui¬
dated damages request. Seller did1 not react and did not appear in the arbitration,
arguing that it never entered into an arbitration agreement with Assignee. A sole
arbitrator was appointed.
By the present award, the ICC sole arbitrator held that he had jurisdiction to
hear the case and granted Assignee’s request for liquidated damages, together
with simple interest. He also directed Seller to reimburse Assignee for the
charges for opening the letter of credit, with simple interest on this sum, and
to bear 85 percent of the costs of arbitration and of Assignee’s legal costs.
The sole arbitrator reasoned at the outset that he had the power to decide on
his own jurisdiction under the doctrine of Kompetenz-Kompetenz, which is
recognized both in the ICC Rules and Austrian law, which applied as the law
of the seat of the arbitration. This doctrine - he noted - is also accepted in the
laws of the other countries with which the contract and the arbitration proceed¬
ings were connected: Australia, England and Korea.

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The arbitrator held that he had jurisdiction over the dispute because the Sale
Contract contained a valid arbitration clause and the right to refer disputes to
arbitration was validly transferred to Assignee with the Assignment Agreement.
The arbitrator examined the validity of the arbitration clause under English
law, which he found to be applicable as the Sale Contract provided that it was
governed by English law and there was no indication that the parties intended to
submit the arbitration agreement to a different law than the law applicable to the
underlying contract. He then found the arbitration clause to be valid under
English law. He stressed that the Sale Contract was poorly drafted and occa¬
t sionally incomprehensible: words were missing, legal terms were incorrectly
used, different clauses provided for conflicting obligations and reference was
made to non-existing ICC rules. In particular, the Sale Contract referred to
a version of the “International Chamber of Commerce’s Standards of Non¬
circumvention and Non-disclosure” that was not the official ICC standard
contract.
The same poor drafting appeared in Clause 22, which as seen above provided
“for arbitration in Vienna, Austria in accordance to the rules of arbitration”. The
arbitrator held that while the parties’ intent to refer disputes to arbitration could
not be doubted - “[t]hough in a contract like this, which has probably not been
drafted by a lawyer and reveals a number of errors, it is not appropriate to give
too much weight to the wording chosen, there is no conceivable other meaning
that could be given to the clause than being an expression of the parties’ will to
arbitrate” - other aspects, such as the type of arbitration and the applicable
arbitration rules, required interpretation.
Though “short-form” arbitration clauses such as the present one are generally
accepted, Clause 22 made no explicit reference to the ICC and mentioned
Vienna. The arbitrator held that it was unlikely that the reference to Vienna
meant a reference to an arbitral institution there; rather, it only determined the
seat of the arbitration. Further, English rules of construction - which are based
on the principles of infavorem validitatis and contra proferentem - allowed for
an interpretation of the clause as a reference to ICC arbitration in Vienna. In the
present case, the final draft contract was supplied by Seller, and Company A
could reasonably understand that draft to be governed as a whole by ICC rules,
since existing and even non-existing ICC rules were mentioned at several places
and references to ICC rules basically covered all issues in the contract. This
conclusion was further strengthened by the observation that Clause 22 closely
resembled “the clauses often used in practice to refer to ICC arbitration, with
the one exception that the ICC was not mentioned”.
The sole arbitrator then held that the rights under the Sale Contract, including
the right to refer disputes to arbitration, was validly assigned to Assignee under
the Assignment Agreement. This Agreement he found to be valid under the

applicable Korean law, and its effects under English law, which governed the
Sale Contract under which the assigned rights arose.
The arbitrator, having found that he had jurisdiction, considered the substan¬
tive claims in dispute and held that the liquidated damages clause in the Sale
Contract was valid under the applicable English law and that it was triggered by
Seller’s failure to deliver the goods within the (extended) contractually agreed
time limit. He further held that Assignee could also claim the damages its
assignor, Company A, incurred for the opening of the letter of credit.
The sole arbitrator granted interest on both sums above, finding that accord¬
ing to the applicable English law, interest should run on the liquidated damages
from the date of the liquidated damages request onwards and on the amount of
the charges for the issuance of the letter of credit from the date on which
Respondent received the request for arbitration. He fixed the interest rate at
7.71 percent, which was the average interest-rate in Korea, reasoning that since
the objective of awarding interest is to compensate a party for the temporary
withholding of money, interest is to be awarded at a rate applicable where the
creditor would have had to borrow the relevant amount: here, Korea.
The arbitrator finally directed Seller to pay 85 percent of the costs of the
arbitration and 85 percent of Assignee’s reasonable legal costs.
Excerpt
[1] “Claimant [Assignee] contends that on the basis of the facts submitted it
has a claim against Respondent [Seller] for liquidated damages to be enforced in
arbitration proceedings. It maintains that the contract between Respondent and
Company A contained in Clause 22 a valid arbitration clause in favour of ICC
arbitration in Vienna. This has been automatically transferred to Claimant with
the assignment of the claims arising under the contract by Company A.
[2] “In relation to the substantive claims, Claimant asserts that it is entitled to
the sum it seeks on the basis of Clause 19 of the Sale Contract, which provides:
‘CONTRACT NON-PERFORMANCE
If the Buyer delays in performing under this contract (in establishing pay¬
ment procedure) the Buyer agrees to pay to the Seller 0.1 percent for each
day of delay but not more than 1 percent of Buyer’s L/C face value. If the
Seller delays in delivery against contract schedule the Seller agrees to pay to
the Buyer 0.1 percent for each day of delay but not more than 3 percent of a
cost of undelivered goods. In case such delay is over 20 days the Buyer has a
right to annul the Contract and releases the Performance Bond in his favour
for the quantity that remains undelivered.’

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[3] “Claimant considers that this clause constitutes a valid liquidated damages
clause since the amount stipulated is a genuine attempt of the parties to quantify
the actual damages Company A would have suffered in case of late delivery.
Since Respondent did not deliver the goods the requirements of the clause are
met.
[4] "Furthermore, Claimant maintains that it is entitled to reimbursement
of the amount paid for the issuance of the letter of credit and of the amount
paid for the confirmation of the letter of credit as damages for the breach
of contract. These damages arise out of the complete failure to perform the
contract and are, therefore, not covered by the liquidated damages clause,
which only deals with damages arising from the belated performance of the
contract.”
■
I. JURISDICTION
2
1. Kompetenz-Kompetenz
[5] “In the present case it is first necessary to ascertain the jurisdiction of the
Sole Arbitrator. Respondent - though never formally challenging the Sole
Arbitrator’s jurisdiction - indicated in a telephone conversation . . . that it con¬
sidered itself not bound to participate in any arbitration with Claimant.
[6] “The -Sole Arbitrator has the power to decide on his own jurisdiction. The
doctrine of Kompetenz-Kompetenz is recognized in Art. 6.2 second sentence
ICC Rules and in Austrian law, which is the relevant law of the place of arbi¬
tration (Liebscher/Schmid, “Country Report: Austria”, in Weigand (ed.)
Practitioner's Handbook on International Arbitration, 2002, para. 36), as well
as in the laws of the other countries with which the contract and the arbitration
proceedings have certain links (English Law: Sect. 30 Arbitration Act 1996;
Australian Law: Sect. 16 UNCITRAL Model Law enacted by Part III of the
International Arbitration Act 1974; South Korean Law: see Lee, “Country
Report Korea”, in ICCA International Handbook on Commercial
Arbitration, at V. III).”
2. Valid Arbitration Clause
[7] “The Sole Arbitrator has jurisdiction to hear this case. Clause 22 of the
Contract for the sale of the goods constitutes a valid arbitration clause on which
Claimant can rely. The right to go to arbitration was automatically transferred to
Claimant with the valid assignment of Company A’s claims in the Agreement
for Release and Assignment.”

1
a. Relevant laws
[8] “There are a number of different laws which are relevant for the determi¬
nation of the Sole Arbitrator’s jurisdiction. According to the prevailing view in
international arbitration, arbitration proceedings are generally submitted to the
law of the place of arbitration, in the case at hand Austrian law. Though an
arbitrator, unlike a state court, is not part of the judicial system of any country, it
is widely recognized that he should apply the rules of the place of arbitration, in
particular its mandatory rules (Paulsson, International Commercial Arbitration,
in Bernstein, Handbook of Arbitration Practice, 3rd ed. 1998, at p. 557
para. 10.80).
[9] “This principle is an underlying principle of Austrian Law as well as the
laws of the other countries with which the arbitration proceedings and the
contract have a certain connection (for Austrian Law see Liebscher/Schmid,
“Country Report Austria”, in Weigand (ed.) Practitioner's Handbook on
International Arbitration, 2002, para. 96; for English Law see Mustill/Boyd,
Commercial Arbitration, 2nd ed. - 2001 Companion, 2001, at pp. 122-123;
for Korean Law see Tae Hee Lee, “International Commercial Arbitration in
Korea”, in ICC (ed.), International Commercial Arbitration in Asia, 1998, at 32;
for Australian Law see Pryles, “Australia”, in Pryles (ed.) Dispute Resolution in
Asia, 1997, at 58-59).
[10] “Consequently Austrian law governs not only the issue of whether the
Sole Arbitrator can decide on its own jurisdiction, but also whether the dispute
can be referred to arbitration and what form requirements have to be met for a
valid arbitration agreement.
[11] “By contrast, the question of whether the parties entered into a valid
arbitration agreement is generally governed by the law applicable to the arbi¬
tration agreement as such (see on Austrian Law: Liebscher/Schmid, “Country
Report Austria”, in Weigand (ed.) Practitioner's Handbook on International
Arbitration, 2002, para. 25). In particular, this law also governs the interpreta¬
tion of the arbitration agreement in case of ambiguities.
[12] “In the case at hand, the arbitration agreement is submitted to English
Law. Clause 22 provides in its last sentence, directly following the sentence
providing for arbitration: ‘This contract shall be governed by English Law’.
This choice also extends to the arbitration clause contained in the contract.
Irrespective of its separability there are no indications that the parties in the
present case wanted to submit the arbitration agreement to a different law than
the main contract. Without such indications a choice of law for the main contract
is generally considered to also extend to the arbitration agreement (see for
English Law, Russell on Arbitration, 21st ed. 1997, para. 2-094; Merkin,
Arbitration Act, 2nd ed. 2000, at 180; see also Germany, Oberlandesgericht,

1
Hamburg, 22 September 1978, V Yearbook Commercial Arbitration 262 (1980)

at 264 [Germany no. 20]; from the arbitration practice see NOFOTA award,
5 September 1977, IV Yearbook Commercial Arbitration 218 (1979) at 219; ICC
case no. 2626, 105 Clunet 980 (1978) at 981; ICC case no. 6840, 119 Clunet 1030
(1992) at 1032; ICC case no. 6379 of 1990, XVII Yearbook Commercial
Arbitration 212 (1992) at 215). That is particularly so in the present case
where the choice of law clause follows immediately after the arbitration clause.
There are no indications that the parties wanted to exclude their arbitration
clause from the choice made in relation to the substantive law.
[13] “English law, as the law governing the arbitration agreement and the
substantive contract between Respondent and Company A, also governs the
question of the effect which the assignment of the underlying claim has on
the arbitration agreement (Girsberger/Hausmaninger, Assignment of Rights
and Agreement to Arbitrate, 8 Arb Int 121 (1992) at 157 et seq.).
[14] “On the basis of these laws the Sole Arbitrator determines that he has
jurisdiction to hear the dispute.”
b. . Existence of a valid arbitration agreement between Respondent

and Company A
[15] “Respondent entered into Contract No. 1234 ZZ with Company A. The
conclusion of the contract is not only evidenced by the signed contractual doc¬
ument . . . and the witness statement of Mr. C . .. but also by later correspon¬
dence from both sides. For example, all correspondence between Respondent’s
representative, Claimant’s owner and Company A concerning delivery of the
goods, postponement of the dates of delivery and resulting changes to the letter
of credit . . . and then later the search for a solution for the effects of non¬
delivery ... is based on the assumption that Respondent was contractually
obliged to deliver a certain quantity of the goods. A number of these documents
originate from Respondent . .. and there is no reason to believe that any of the
documents submitted are not genuine.
[16] “The whole contract is poorly drafted. Words are missing (e.g., first
paragraph), the numbering jumps from 2 to 4, different clauses contain
conflicting obligations (Clauses 4 and 7 concerning time limits for presentation
of documents; Clause 22 and Additional Provisions concerning the number of
copies), reference is made to non-existing rules (Clause 23: ‘International
Chamber of Commerce’s Standards of non-circumvention and non-disclosure’),
legal terms are used in an incorrect way (Additional Condition: contract instead
of offer) and some clauses make no sense at all. Furthermore, the English used is
fairly bad.
i
[17] “That also applies to Clause 22 of the contract, which provides under the
heading 'Miscellaneous':
‘Any change of this contract must be returned from and signed by both
parties. This contract shall be legal and binding upon receipt of the counter
signed fax copy. Seller shall send Two (02) copies by mail or courier to
Buyer who shall sign and return One (01) copies of the dully executed by
the Seller. This shall not, whatsoever, delay issuance of the financial instru¬
ment and is mainly a formality of procedures. All appendics to the present
contract are to be considered its integral part. Any amendments and/or
addendum to this contract shall not be valid unless made in writing and
signed by both concerning parties. After the contract has been signed all the
preliminary agreements, discussions, and correspondence between the
parties concerning this contract are to be considered null and void. All
terms and conditions as per ICC 1995 Revision Publication N600, London
except where specified to the contrary above and these details shall be taken
having been returned in such contract for arbitration in Vienna, Austria in
accordance to the rules of arbitration. This contract shall be governed by
English Law.’ (Emphasis added).
[18] “Clause 22 deals with a number of separate issues at the same time
without a logical order or clearly distinguishing them, uses wrong references
and is generally drafted in bad English. That applies in particular to the part
containing the double reference to arbitration, which is not very clear.”
i. Agreement on arbitration as dispute settlement mechanism

[19] “Irrespective of any ambiguity, the clause makes clear that the parties
wanted arbitration as their mode of dispute settlement. It clearly provides for
‘arbitration in Vienna, Austria in accordance to the rules of arbitration’. Though
in a contract like this, which has probably not been drafted by a lawyer and
reveals a number of errors, it is not appropriate to give too much weight to
the wording chosen, there is no conceivable other meaning that could be
given to the clause than being an expression of the parties’ will to arbitrate,
There is no other clause dealing with the issue of dispute setdement in general
terms. Furthermore, the only other clause which addresses certain disputes
relating to force majeure, Clause 20, clearly evidences the parties’ intention to
arbitrate their disputes. It provides the parties can ‘cancel the Contract without
recourse to arbitration’ (Emphasis added) if the force majeure condition lasts for
more than 45 days. This wording presupposes that for all other disputes arbi¬
tration is anticipated. This is confirmed by the written witness statement of

Mr. C, who said that the parties had the intention to submit their disputes to
arbitration. ...”
a. Rules governing the interpretation of the arbitration agreement
[20] "In relation to all other issues, namely the place of arbitration but in
particular the type of arbitration and the applicable arbitration rules, the clause
contains no clear information but requires interpretation. As mentioned above
this interpretation of the arbitration agreement is governed by the law applicable
to it, English Law. According to English law the
‘object sought to be achieved in construing any contract is to ascertain what

the mutual intentions of the parties were as to the legal obligations each
assumed by the contractual words in which they sought to express them’.
(Pioneer Shipping v. B.T.P. Tioxide Ltd, [1982] A.C. 724; see also Lewison, The
Interpretation of Contraas, 2nd ed., 1997, para. 1.02).
[21] “As the Privy Council has held in Mitsui Construaion Co. Ltd. v. Att.
Gen. of Hong Kong, the fact that the contract is poorly drafted affords no reason
to depart from this rule:
‘But the poorer the quality of the drafting, the less willing any court should
be to be driven by semantic niceties to attribute to the parties an improbable
and unbusinesslike intention, if the language used, whatever it may lack in
precision, is reasonably capable of an interpretation which attributes to the
parties an intention to make provision for contingencies inherent in the
work contracted for on a sensible and businesslike basis.’
((1986) 33 Build-L.R. 1, 14, PC).

[22] “In trying to ascertain the mutual intentions of the parties the general
canons of construction usually find application. These include, inter alia, that the
arbitration clause should not be considered in isolation but that other clauses
should be taken into account, that drafts are to be interpreted against the drafter
(contra proferentem) and that an interpretation is preferred which renders the
agreement valid (on the canons of construction see Chitty on Contracts, 28th ed.,
1999, paras. 12-041 to 12-091; Lewison, The Interpretation of Contraas, 2nd ed.,
1997, paras. 6.01 to 6.14).
[23] “In particular, the latter rule has led to a tendency to go beyond these
canons of construction - which are anyway primarily only guidelines - where
the contract is so poorly drafted that applying the ordinary canons of construc¬
tion might render it void for uncertainty. Courts have been very reluctant to

hold an agreement void for uncertainty where the parties have entered into what
they believed to be a binding agreement. That is well expressed by Lord Denning
in The TROPWIND where he held that an agreement may be void for
uncertainty;
‘But this is only when it is impossible to make sense of it. Rather than
finding it meaningless, we should strive to find out what was really intended
- by amending the punctuation, or by supplying words and so forth.’
([1982] 1 Lloyd’s Rep. 232).
[24] “Particularly, for this task of avoiding voidness for uncertainty, recourse
should be made to the specific principles of interpretation developed for
international contracts, which can be found in Art, 4 UNIDROIT Principles.
Though these principles are to a large extent identical to the English canons of
construction they include certain additional or broader rules that supplement
the English principles to avoid that the bad drafting leads to the uncertainty of a
contract”
Hi Interpretation of Clause 22
[25] "On the basis of these principles the poorly drafted arbitration agreement
in Clause 22 is to be construed as a reference of all disputes to ICC arbitration in
Vienna.
[26] “Concerning the place of arbitration the clause provides for ‘arbitration
in Vienna’. In general, reference to a certain location in an arbitration clause can
have three meanings. It may be a reference to the seat of the institution under the
auspices of which the arbitration is to be held, it may be a designation of the
place where the hearings are to be held or it may be a determination of the place
of arbitration. In the majority of cases such references are meant to determine
the place of arbitration (Fouchard , Gaillard, Goldmann on International
Commercial Arbitration, 1999 para. 485 with reference to the cases in footnote
113).
[27] "As becomes apparent from the above, the determination of the seat of
arbitration is of considerable importance. It determines which law is applicable
to the arbitration and which courts have supervisory powers as well as their
extent. By contrast determining the place for the hearings or the place where the
arbitration institution is located is of little practical importance. Irrespective of
the place of arbitration the Sole Arbitrator is free to hold hearings wherever it is
convenient.
[28] “For that reason, determinations of the place for the hearings only make
sense where the parties wanted to ensure that the hearings are held at a certain

Kiaaai-aaüa;

place, which may be different from the place of arbitration. In the case at hand
there are no obvious reasons why the parties should have an interest in having
their hearings in Vienna. The parties to the original arbitration agreement,
Company A and Respondent, come from Australia and Asia and for reasons
of convenience a place for a hearing would have been fixed somewhere in the
region where the evidence is present, but definitively not in Vienna.
[29] “There are also no indications that the reference to Vienna could have
been meant as determining the seat of the Institution. The leading Viennese
institution for international arbitrations is the International Arbitral Centre
of the Austrian Federal Economic Chamber. Since the name of the institution
is unique, impossible to confuse with that of other institutions and already
carries a reference to its location it is unlikely that the reference ‘arbitration
in Vienna, Austria’ is meant to refer to the seat of the institution.
[30] “Therefore, the reference can only be meant as determining the place of
arbitration. This interpretation is confirmed by Mr. C’s written witness state¬
ment, according to which the parties intended to have ICC arbitration in
Vienna. ...
[31] “Such an interpretation of a clause of ‘ICC arbitration in Vienna, Austria’
would also be in line with the international practice. Though precedents are of
little value in the construction of a concrete arbitration agreement they are an
indication of what types of clauses are used in international contracts and what
these clauses usually mean. The use of the short forms such as ‘Arbitration, if
any by ICC Rules in London’ (or any other city) instead of the recommended
Model Clause is not uncommon in international practice. These clauses have
generally been interpreted as providing for arbitration according to the ICC
Rules with the place of arbitration being in the mentioned city (see
Mangistaumunaigaz Oil Production Association v. United World Trade Inc
[1995] 1 Lloyd’s Rep. 619; for further cases see Craig, Park, Paulsson,
International Chamber of Commerce Arbitration, 3rd ed., 2000, para. 9.01;
Fouchard, Gaillard, Goldmann on International Commercial Arbitration,
1999, para. 485).
[32] “In the present case the problem is, however, that the clause only provides
for ‘arbitration in Vienna’ without a direct reference to the ICC. The most likely
explanation for that is that the drafters just forgot the word. There are other
clauses where single words have been forgotten (e.g., first paragraph).
[33] "Even if that were not the case and the lack of reference were not due to an
involuntary slip, an application of the English rules of construction would allow
for an interpretation of the clause as a reference to ICC arbitration, with the
place of arbitration in Vienna. Once it had been established that the parties opted
for arbitration, English Courts have gone a long way in construing arbitration
clauses in a way to prevent them from becoming void for uncertainty (see

generally on this rule and on the reluctance to hold agreements void for uncer¬
tainty Lewison, Interpretation of Contracts, 2nd ed., 1997, para. 6.12 and
para. 7.11).
[34] “In this respect two rules of construction that are firmly established in
English contract law become important, the rules of in favorem validitatis and
contra proferentem. According to the first rule, arbitration agreements should be
interpreted in a way that leads to their validity in order to give effect to theintention
of the parties to submit their disputes to arbitration (Mustill/Boyd, Commercial
Arbitration, 2nd ed., 1989, at 107). According to the rule of contra proferentem
ambiguities in a draft are generally interpreted against the person who submitted
the draft. Since both rules are recognized also in various other countries, they are
considered to form part of a set of international principles of interpreting arbitra¬
tion agreements (Fouchard, Gaillard, Goldmann on International Commercial
Arbitration, 1999, para. 487 ec seq., who however object to the principle of in
favorem validitatis but reach the same result with the principle of good faith;
for references to other laws adhering to these rules of construction see also
Hochbaum, Miflglückte internationale Schiedsvereinbanmgen, 1995, at 37 et seq.).
[35] “Here, according to the written answers submitted by Claimant, the
parties discussed the terms jointly, but the final draft was submitted by
Respondent. This description of the drafting process is supported by the
documentary evidence submitted . . . [which shows] that Respondent sent
Company A a signed offer that was to be signed by Company A and
Claimant and then to be sent back to Respondent.
[36] “For a reasonable person in the position of Company A the draft could
only be understood in a way that the whole transaction was to be governed
by ICC rules. The contract mentions at several places existing and even non¬
existing ICC rules. These were to cover all relevant issues. That starts with the
heading of the contract which provides ‘Terms as per ICC 500 UCP\ Though
these terms only deal with the issues related to the letter of credit, in the way
they are used in the contractual document they seem to govern all contractual
issues. This impression is reinforced by the misguided reference in Clause 22,
according to which ‘[a]ll’ terms and conditions as per ICC 1995 Revision
Publication N600, London’, which is a publication that does not exist.
Furthermore, Clause 20 explicitly reiterates that the issues of ‘Force Majeure
Unforeseen Circumstances’ are to be considered ‘according to the rules and
regulation of the International Chamber of Commerce, Paris, revised 1993’ -
a reference which was unnecessary if one takes into account that the whole
contract was already to be governed by these Rules, the UCP 500. Also in
relation to the issue of confidentiality the contract provided in Clause 21 that
in case of breach of the confidentiality obligations ‘the International Chamber of
Commerce in London, United Kingdom will be applied to’. Since there is no

¡

such International Chamber of Commerce in London and Clause 22 makes clear
that this is a misguided reference to the ICC, the clause must have been under¬
stood that also these issues were to be referred to the ICC. Furthermore, Clause
23 provides that the parties 'abide by the International Chamber of Commerce’s
standard of non-circumvention and non-disclosure’ - again a non-existing set of
rules allegedly prepared by the ICC.
[37] “The number of references to the ICC, which basically covered all issues in
the contract, made it reasonable to believe that also the dispute resolution would
be submitted to ICC rules. This is even more so since the clause closely resembles
the clauses often used in practice to refer to ICC arbitration, with the one excep¬
? tion that the ICC is not mentioned. It is, however, mentioned as the institution to
which breaches in respect of the confidentiality rules had to be referred.
[38] “In light of all these circumstances and taking into account that at least for
Company A English was not the mother tongue, Company A’s understanding
of the clause - that it provided for Arbitration under the ICC Rules with the
place of arbitration in Vienna - evidenced by Mr. C’s written witness statement
was reasonable.”
c. Effect of assignment
[39] “The arbitration agreement concluded between Company A and

Respondent can be relied on by Claimant in the case at hand. Claimant’s action
is based on Company A’s contractual rights flowing from the contract for the
sale of the goods, which were covered by the arbitration agreement. These rights
were validly assigned from Company A to Claimant in the Agreement for
Release and Assignment . . . with the effect that also the arbitration agreement
concluded for their enforcement was automatically transferred.
[40] “The ‘Agreement for Release and Assignment’ is a valid contract of
assignment according to applicable Korean law. Sects. 449-452 Korean Civil
Code only require for the validity of these contracts that the right to be assigned
is assignable (see Bong, Forderungsabtretung als Sicherungsmittel im deutschen
und koreanischen Recht, 1991, at 105 et seq.).
[41] “The general assignability of Company A’s contractual rights as well as
the consequences of a valid assignment are determined by English law, which
governs the purchase contract under which the rights arise, as well as the arbi¬
tration agreement (Girsberger/Hausmaninger, "Assignment of Rights and
Agreement to Arbitrate”, 8 Arb Int 121 (1992) at 157 et seq.).
[42] “English law recognizes the principle that contractual rights can in
general be freely assigned and generally lead to an automatic transfer of the
arbitration agreements concluded for them. The English position in this respect
can be found in Shayler v. Wolf. Dealing with the question of the effects of an

assignment on arbitration agreements, the Court of Appeal held that ‘the arbi¬
tration clause also follows the assignment of the subject matter of a contract’
([1946] Ch. 320; see also Schiffahrtsgesellschaft Detlev Von Appen GmbH v.
Voest Alpine Intertrading [1997] 2 Lloyd’s Rep. 79; Tweeddale & Tweeddale, A
Practical Approach to Arbitration Law, 1999, at p. 96).
[43] “Sect. 82(2) Arbitration Act 1996 furthermore states that ‘a party to an
arbitration agreement includes any person claiming under or through a party to
the agreement’ (Emphasis added).
[44] “This view is in line with the prevailing position in international arbitra¬
tion where the rule of an automatic transfer of the arbitration agreement is
considered to be a general principle of Arbitration Law (see Paris Court of
Appeal, 25 November 1999, SA Burkinabé des ciments et matériaux v. Société
des ciments d’Abidjan, Rev d’ Arb 165 (2001) at 168; also Banque de Paris et des
Pays-Bas v. Amoco Oil Company, 73 F.Supp. 1464 (S.D.N.Y. 1983) at 1469
which considered it to be a basic principle of case law; for Austrian law see
Liebscher/Schmid, “Country Report: Austria”, in Weigand (ed.)
Practitioner’s Handbook on International Arbitration, 2002, para. 20).
[45] “The rationale for this rule is that without an automatic transfer of the
arbitration agreement a party could easily circumvent its obligation to arbitrate
by assigning the relevant claim and thereby deprive the other party of the con¬
tractually agreed mechanism for the enforcement (see for that Hosiery Mfg.
Corp. v. Goldston 38 N.Y. 2d 22, 143 N.E. 779 (1924) at 780). The only excep¬
tions to this rule are when the assignment as such is already invalid, the parties
have excluded the automatic transfer of the arbitration agreement or it would
lead to an unjustified change in the contractual set up of the arbitration. None of
these exceptions is, however, present in the case at hand.”
II. SUBSTANTIVE CLAIMS
[46] “Claimant has a right to demand payment from Respondent on the basis
of the assignment of Company A’s claim arising out of the Contract concluded
between Respondent and Company A.”
1. Claim for Liquidated Damages Under Clause 19
[47] “Company A has a claim against Respondent for liquidated damages

under Clause 19 of the Contract which provides:
‘CONTRACT NON-PERFORMANCE
If the Buyer delays in performing under this contract (in establishing pay¬
ment procedure) the Buyer agrees to pay to the Seller 0.1 percent for each

--
- : -Ti"; ■-
i
day of delay but not more than 1 percent of Buyer’s L/C face value. If the
Seller delays in delivery against contract schedule the Seller agrees to pay to
the Buyer 0.1 percent for each day of delay but not more than 3 percent of a
cost of undelivered goods. In case such delay is over 20 days the Buyer has a
right to annul the Contract and releases the performance Bond in his favour
for the quantity that remains undelivered.’
[48] “Clause 19 is part of contract no. 1234 ZZ concluded between

Respondent and Company A in 2000. The reference in the heading of page 3
to ‘Contract 1574 ZZ’ must be considered as a drafting mistake. There is no
indication that page 3 belongs to a different contract. Page 3 fits in relation to its
content and numbering perfectly between pages 2 and 4. In particular Clause 19
makes reference to the content of Clause 5 contained on page 2. It allows
Company A to draw on the ‘performance bond’, which Respondent was sup¬
posed to provide according to Clause 5.”
a. Liquidated damages clause is valid
[49] “Clause 19 constitutes a liquidated damages clause, which is valid accord¬

ing to the applicable English law. English Law distinguishes between liquidated
damages clauses and penalty clauses, which are not valid. Liquidated damages
clauses are genuine pre-estimates of damages. By contrast the sum payable in
penalty clauses has no connections with the potential damage of a breach but is
just an amount fixed primarily to prevent a party from breaching a contract
( McGregor on Damages, 16th ed., 1997, para. 481 et seq.). That in a given
case the sum provided for as liquidated damages exceeds the actual damage
does not exclude the classification of a clause as a liquidated damages clause.
As has been held by Lord Woolf in the decision of the Privy Council in Philips
Hong Kong v. Attorney General of Hong Kong ((1993) 61 B.L.R. 41):
‘so long as the sum payable in the event of non-compliance with the con¬
tract is not extravagant, having regard to the range of losses that it could
reasonably be anticipated it would have to cover at the time the contract
was made, it can still be a genuine pre-estimate of the loss that would be
suffered and be a perfectly valid liquidated damages provision.’
[50] “Clause 19 dealt with damages arising from a delayed delivery of raw
materials. This is an area where the actual damages suffered are often hard to
determine and to prove and where it consequendy makes perfect sense to avoid
the difficulties in fixing a sum as liquidated damages.

[51] “Furthermore, It is Respondent’s burden to prove that the stipulated sum

is a penalty rather than a liquidated damage (.McGregor on Damages, 16th ed.,
1997, para. 482). Respondent has not satisfied this burden. Neither has
Respondent submitted any proof nor are there any indications that the sum
agreed was primarily fixed as a threat to prevent the parties from breaching
the contract, i.e. in terrorem of the parties.
[52] “That Claimant has only paid a smaller sum to Company A for the
assignment of the claim does not affect the qualification of Clause 19 as a liq¬
uidated damages clause. It does not necessarily follow that the price is equal to
the actual damages suffered by Company A. Quite to the contrary, due to the
uncertainty involved in enforcing a right and the amount of time necessary for
that, it is normal that claims are sold with a considerable reduction in price. In
addition, the buyer may never be able to recover the money, either because he is
not able to prove his case or because the debtor is insolvent. In the case at hand,
Claimant in his written answers gave a reasonable explanation of how the parties
arrived at the figure. It constituted the costs actually incurred by Company A for
its performance of the contract. Delay in delivery, however, may lead to
damages which go well beyond the mere costs incurred. It may, for example,
result in lost profits.
[53] “The interpretation as a liquidated damages clause is in line with the
classification of the claim in the ‘Agreement for Release and Assignment’.
The fourth consideration mentions a claim of ‘[a certain sum] as liquidated
damages’ (Emphasis added) against the Seller and Art. 2(b) also mentions claims
of liquidated damages.”
b. Liquidated damages clause triggered by non-delivery
[54] “The clause was triggered when Respondent did not ship the goods at the
latest date of shipment agreed between the parties. There are several documents,
the genuineness of which is not doubted, which make clear that Respondent did
not deliver the goods. In particular in the renunciation fax Respondent admits
that due to external influences it did not perform its obligations.
[55] “On that date the contract was still in force. Nothing else can be derived
from the clause in the last line of first paragraph providing that ‘Any alteration
renders it (contract) void and immediately cancelable’ and from the clause in the
Additional Conditions that ‘The contract is valid for seven days from the issue
date’. The reference to the ‘contract’ in both clauses must be interpreted as a
reference to the ‘offer’ made in the document. Otherwise all the contractual
provisions make no sense. It was anticipated that it would take more than
seven days to fulfil the contract. Already according to Clause 4, Buyer’s Bank
had seven days time after receiving notice about the willingness to issue a

i
performance bond before it had to issue its letter of credit, which in turn was a
precondition for any performance by the Seller. According to a literal reading of
the clause, the contract would have already expired by then, which cannot be
something the parties intended. This is clearly evidenced by their later behav¬
iour. Furthermore, Clauses 22 and 23 explicidy provide that ‘changes must be
returned from and signed by both parties’, which would make no sense if any
change would render the whole contract void.
[56] “In addition, both parties’ behaviour indicated that they considered
themselves to be bound by the contract. Therefore, even if the clauses were
i
originally intended to lead to a termination of the contract, they were abrogated
;
by the later behaviour of the parties.
[57] “Due to the several amendments to the contract, the extended delivery date
was the relevant date from which time onwards liquidated damages began to accrue
under Clause 19. . .. When Respondent declared in its renunciation fax that it
-,
could not perform the contract it became obvious that performance would not
happen within the thirty days in which the full amount of 3 percent in liquidated
damages would have arisen. Therefore, Company A was already entitled to claim
the full amount of the liquidated damages on the date of the renunciation fax.
[58] “The wording of the clause does not make the accrual of the liquidated
damages for late payment dependent on any later delivery. Quite to the contrary
the clause makes clear that liquidated damages may also arise in case of termi¬
nation of the contract. The last sentence of Clause 19 does not constitute a
limitation of the right to liquidated damages but is meant to grant the additional
right to terminate the contract if the delay for delivery exceeds 20 days. In such a
case the buyer may additionally claim damages for breach of contract in relation
to the non-delivered goods. For these damages it may even draw on the 2 percent
performance bond. That does, however, in no way affect the buyer’s right to
claim liquidated damages for the first 20 days or even the full 30 days if it does
not make use of its right to terminate the contract.
[59] “It can also not be argued that the declaration in the renunciation fax,
which indicated that no performance would be made, prevented any further
accrual of liquidated damages for late delivery. Such an argumentation would
lead to absurd results. To interpret Clause 19 in such a way would unduly favour
the party making no performance at all over the party merely delaying perfor¬
mance. In relation to the damages incurred by Company A - which the clause
was meant to compensate - it makes no difference why the delivery did not take
place. The only thing which matters is that within the 30 days after the agreed
shipment date no goods were received by Company A. Whether or not the
goods are delivered after that period does not affect the amount of damages
incurred during the 30-day period for which that part of the clause was to
provide compensation.”

2. Charges for Letter of Credit
[60] “Claimant can in general also claim any damages Company A incurred
for the opening of the letter of credit. This claim is not covered by the liquidated
damages clause and can therefore be brought in addition to the liquidated
damages for delayed performance. Generally where a certain breach and the
types of damages arising from it are covered by a liquidated damages clause,
any further claim for higher actual damage is excluded by the clause. That does,
however, not apply to breaches or damages not covered by the liquidated
damages clause ( McGregor on Damages, 16th ed., 1997, para. 487).
[61] “In the present case, the first two sentences of Clause 19 clearly only
relate to damages arising from delayed performance. Though the heading of
Clause 19 seems to cover all forms of ‘Contract Non-Performance* the
following text of he clause obviously only deals with delay, from the buyer’s
side, as well as from the seller’s side. In a case of a mere delay of performance the
damages claimed would not have arisen. The fees paid for the letter of credit
would have been necessary expenses incurred for the fulfilment of the contrac¬
tual obligation to provide a letter of credit in return for the benefits anticipated
from the shipment of the goods. The expenses only became damages when the
obligation to ship the goods was not fulfilled and therefore no letter of credit was
needed. Since the anticipated benefit could not be realized the expenses incurred
became damages. But that is solely due to the complete failure to perform and
has nothing to do with the delay in performance.
[62] “Nothing else follows from the third sentence which provides:
Tn case such delay is over 20 days the Buyer has a right to annul the
Contract and releases the Performance Bond in his favour for the quantity
that remains undelivered.’
First, the wording of the sentence indicates it was primarily intended to cover
partial non-performance and not the complete failure to perform the contractual
obligations. The performance bond was intended to cover ‘the quantity that
remains undelivered’. In case of partial delivery the situation is comparable to
that described above: the fees incurred for the letter of credit are, at least in
relation to the part performed, still expenses and not damages since the buyer has
received the anticipated benefits in return. Secondly and even more importantly,
the third sentence shows that even cases of partial non-delivery were not
intended to be covered by the liquidated damages calculated on the basis of
the first sentence. They were to be compensated by drawings on the perfor¬
mance bond. That Respondent never provided the required performance bond
does not prevent Claimant from claiming the sum. The rationale underlying

rtw'-M
*|

these types of guarantees is not to exclude any further claim but to facilitate the
enforcement of those claims covered by a bond. Furthermore, Respondent can¬
not be allowed to benefit from the non-fulfilment of its obligation to provide a
performance bond.
[63] “Claimant has provided sufficient proof that a letter of credit was opened
in favour of Respondent. In this respect Mr. C’s witness statement ... is sup¬
ported by various documents. First, there are the numerous Swift messages,
which evidence the opening of a letter of credit and its various
amendments. .. . Second, Respondent in a letter requests amendments to the
letter of credit issued. . . . Third, in its renunciation fax Respondent’s
representative informed Claimant’s owner that he ordered Respondent’s bank
to return the letter of credit.
[64] “It is clear that Company A had to pay a certain commission for the
opening of the letter of credit. Claimant has, however, not provided sufficient
proof for the amounts it claims. It relies on the written witness statement of Mr. C
and certain exhibits. Payments made through banks are generally well documen¬
ted. There is usually at least a record showing the deduction on the bank account
of the party who made a payment, even if no other documents such as payment
instructions or a bill for the charges exist. It is general business practice that the
records for payments made are kept for a certain time and are easily accessible. It is
for this reason that the Sole Arbitrator did not consider the written witness state¬
ment of Mr. C in itself sufficient to prove payments made, but wanted to see the
records of these payments made. Despite requests from the Sole Arbitrator in the
oral hearing . . . and in Procedural Orders 6 and 7, no further documents were
presented and the promised translation of the bank account statement attached to
the original of a certain exhibit was not provided.
[65] “For the so-called confirmation charge Claimant only provided a copy
headed ‘Remittance Details’. It shows that a payment in the amount of the sum
sought under this heading was made on the application of [acronym omitted],
allegedly the short form for Company A, and that the beneficiary was Bank 2. It
does not contain any indication that this payment was made in connection with
the letter of credit. The bank account statement attached to the original pre¬
sented at the oral hearing was never translated though the Sole Arbitrator asked
for it, as indicated in the Minutes of the Meeting.
[66] “There are two points which raise doubts as to whether the Remittance
Details actually relate to the letter of credit in question. First, payment seems to
have been made . . . nearly a year after the letter of credit was issued and over
half a year after the transaction for which it was needed had been terminated. It
appears doubtful whether a bank would wait for such a long time before it
charges for its services rendered. Second, according to the Swift Messages
exchanged in the process of issuing the letter of credit, the charges for its

confirmation by Bank Y were to be borne by the beneficiary. . . . Consequently,

the ‘Remittance Details’ do not provide sufficient support for the witness state¬
ment of Mr. C.
[67] ‘The proof provided for the payment of charges for the opening of the
letter of credit is in this respect more convincing. The debit note issued and
the certificate of remittance are both, time-wise, in close connection with the
Agreement for Release and Assignment. Furthermore, both documents contain
a clear reference to the letter of credit as they mention its number. Therefore, the
Sole Arbitrator considers them sufficient to provide the necessary proof of
payment irrespective of the fact that they only evidence a payment from
Claimant to Company A but not from Company A to Respondent. It is,
however, clear that a letter of credit was issued and that payments had to be
made for that. The amount paid is in line with the charges of other banks for the
issuance of letters of credit for good customers.”
III. INTEREST
[68] “Claimant can claim interest on the amount of the liquidated damages at
the rate of 7.71 percent from the date of the liquidated damages request onwards
and on the amount of the charges for the issuance of the letter of credit from the
date on which Respondent received the Request for Arbitration.
[69] “Company A and Respondent had submitted their contractual relation¬
ship to English law, which consequently also governs the questions of whether,
from what time onwards and at what rate interest should be paid on any sums
due, the payment of which has been delayed,
[70] “Under English law - though the Common Law does not recognize a
right to interest as general damages - courts and arbitral tribunals in practice
generally award interest on a discretionary basis from the date when the loss was
incurred { Chitty on Contracts, 28th ed., 1999, para. 27-143). The relevant sta¬
tutes explicitly provide for such a discretionary power of the courts and tribu¬
nals which in case of arbitration also covers compound interest according to
Sect. 49 Arbitration Act 1996.
[71] “In the present case the liquidated damages began to accrue from the
extended date for delivery onwards, the day after the last date of a possible
shipment. By its renunciation fax to Company A, Respondent made clear
that the contract could not be performed within the 30-day period during
which liquidated damages continued to accrue at the rate of 0.1 percent per
day. That refusal of performance gave Company A the right to demand already
by its liquidated damages request letter the full 3 percent of liquidated damages.
Accordingly, interest can be granted from the date of the liquidated damages
request onwards.

:

[72] “With the renunciation fax, it also became obvious that the letter of credit
would not be used and any expenses incurred in this context had to be compen¬
sated by way of damages. Company A in its debit note, however, made no
reference to this amount. The first time Respondent was confronted with this
claim was the Request for Arbitration. . . . Claimant has not submitted any
materials from which it can be deduced that Respondent was aware of that
claim before. Therefore, the Sole Arbitrator considers this date to be the relevant
date from which interest on this part of the amount starts to run.
[73] “The interest rate is fixed at 7.71 percent, the average interest rate in
Korea. The objective of awarding interest is to compensate a party for the
temporary withholding of money. Consequendy, interest is usually awarded
at a rate at which the creditor would have had to borrow the amount recovered
over the period in question (Cremer v. General Carriers SA [1974] 1 WLR 341,
355 et seq.). Generally, it is the lex monetae, the law of the country whose
currency is to be used to pay the underlying debt, which governs the interest
rate. It is, however, recognized that in cases where the creditor would have to
refinance itself in a different country the rates of this country can be applied
( Helmsing Schiffarts-GmbH v. Malta Dry Docks Corporation 1977) 2 Lloyd’s
Rep. 678 et seq.).
[74] “The present case has no connections with the United States apart from
the currency chosen which was probably selected due to its world-wide accep¬
tance. There are no indications that Company A is refinancing itself at American
interest rates. The use of a Korean bank to issue the letter of credit makes it
highly likely that Company A is refinancing itself primarily in Korea. Therefore,
the relevant rate should be the average rate in Korea.”
IV. COSTS
[75] “Claimant furthermore claims reimbursement of its costs of the arbitra¬

tion. Under Art. 31.3 of the ICC Rules of Arbitration, the Sole Arbitrator has to
decide on the costs of arbitration. The costs of arbitration include the fees and
expenses of the Sole Arbitrator and the ICC administrative expenses; these costs
have been fixed by the International Court of Arbitration at a certain sum. The
costs of the arbitration, furthermore, include the reasonable legal and other costs
incurred by the parties for the arbitration.
[76] “In line with the prevailing practice at the place of arbitration (Derains
and Schwartz, A Guide to the New ICC Rules of Arbitration, 1998, at 341) the
costs shall be borne in proportion to the success of the parties in the arbitration.
As Claimant has succeeded on the vast majority of the merits, Respondent has to
bear 85 percent of all arbitration costs, i.e. the fees and expenses of the Sole
Arbitrator and the ICC administrative expenses and 85 percent of Claimant’s

reasonable legal costs fixed at a certain sum on the basis of the explanation and
evidence submitted by Claimant.
[77] “The calculation of Claimant’s legal costs is based on the invoices sub¬
mitted by Claimant. These invoices and not the additionally submitted detailed
time sheets are the relevant basis for the calculation since Claimant is only to be
reimbursed for the payments actually made, not for the eventually higher value
of the services rendered. In particular, the lump sum agreement for services
rendered until a certain date and the non-inclusion of the value added tax
into the invoices leads to a considerable reduction of the claim made in
Claimant’s brief. .. . This mode of calculation is, however, in line with
Claimant’s calculation in [a later] brief.”
(....)

a
Parties: Claimant: Seller (Liechtenstein)

Respondent: First Buyer (Spain)
Place of The Hague, Netherlands

arbitration:
Subject matters: - UNIDROIT Principles of International Commercial

Contracts
- duress
- good faith
- threat by bringing court action
Summary
Two conflicting bills of lading for the same shipment (a clean bill and a bill
mentioning defects as per an independent surveyor's report ) led to several
court actions in Spain, following which seller suggested to and signed with
buyer a settlement agreement terminating the contract and providing for a
compensation for costs. Seller claimed in arbitration that it concluded the
agreement under duress. The tribunal dismissed all of seller’s claims, which
were based on the UNIDROIT Principles that applied according to a
preliminary award on the applicable law: good faith, deviation from
past usages and practices, duty of cooperation, duty to mitigate losses,
fraud, threat (through the bringing of court actions ) and gross disparity.
Although seller’s claims failed, buyer’s reiterated bringing of an unsuccess¬
ful challenge to jurisdiction and its failure to pay its share of the advance on
costs led the tribunal to order that buyer pay 60 percent of the ICC costs
and compensate seller for its legal costs for the jurisdiction and costs phases
of the proceedings.
Seller and First Buyer entered into a sale contract in respect of certain goods to
be delivered CFR at a Spanish port. Payment was to be made by an irrevocable
letter of credit opened by First Buyer at Bank M on a certain date and payable

ninety days from the date mentioned on the bill of lading. The contract
contained the following arbitration clause:
“All disputes arising out or in connection with this contract shall be

finally settled under the Rules of Arbitration of the International Chamber
of Commerce by one or more arbitrators to be appointed in accordance
with said Rules, available via (ICC web site). Place of arbitration shall be
The Hague, The Netherlands. The language of the arbitration proceedings
shall be the English language. Copy of the ICC Rules of Arbitration will be
made available on request free of charge.”
On date A, the goods were loaded on board a Ukrainian vessel at a Russian port.
The charterer, Company W, issued a bill of lading indicating that the goods were
"clean on board” (the clean bill of lading). The clean bill of lading was trans¬
mitted to Bank M, to be included in the documents for the payment pursuant to
the letter of credit. On the same date, however, Surveyor P, a marine surveyor
nominated by Shipping Agency X, carried out a pre-shipment survey of the
goods and issued a report mentioning several serious defects and recommending
that these findings be inserted into the bill of lading and mate’s receipt relating to
the cargo. Accordingly, also on date A, the master of the vessel issued a second
bill of lading (the master’s bill of lading), as well as a Mate’s Receipt no. 1, which
noted the goods’ defects.
First Buyer sold the goods, while in transit, to a Spanish company, End Buyer.
When the ship arrived at the Spanish port of arrival, End Buyer presented the
clean bill of lading to the master of the vessel. Since the goods appeared to be
damaged and in view of the discrepancy with the master’s bill of lading,
however, the captain concluded that the clean bill of lading was a forgery and
closed the hatches.
Several court proceedings ensued. End Buyer sought and obtained the arrest
of the ship to guarantee the damage caused to the goods and subsequently
commenced a civil action against the shipowners and First Buyer to ratify the
vessel arrest; it also commenced criminal court proceedings for fraud against the
master of the vessel, charterer Company W and First Buyer. First Buyer sought
and obtained an interim measure forbidding Bank M from paying under the
letter of credit payable to Seller for the sale of the goods; this action was later
transferred to a second court, which confirmed the measure. The shipowners
commenced an action seeking judicial deposit of the cargo until the appearance
of a person entitled to receive it.
Three months later, Seller concluded an agreement with the shipowners; part
of the cargo was reloaded and eventually unloaded at another port. A few days
later, Seller suggested to and signed with First Buyer a Settlement Agreement in
which, inter alia, it agreed to terminate the sale contract and to pay a certain sum
to First Buyer for legal costs.

[

The present arbitration proceedings concern Seller’s claim that it was forced
to enter into the Settlement Agreement under economic duress in order to
escape from a “deadlock situation” created by the Spanish court proceedings,
and its request that the Settlement Agreement be declared null and void.
The three-member arbitral tribunal first rendered a preliminary award, by
which it dismissed First Buyer’s objection of lack of jurisdiction and lis alibi
pendens and held that the UNIDROIT Principles applied to duress as cause of
avoidance of the Settlement Agreement. It then issued a partial award on the
advance to cover the costs of the arbitration, by which it directed First Buyer to
reimburse Seller for the payment of its share of the advance on costs. First Buyer
did not comply with the partial award on costs.
By the present final award, the ICC arbitrators denied Seller’s request to
declare null and void the Settlement Agreement, finding “no fact, attitude or
judicial action characterizing duress caused directly or indirectly by First
Buyer”. The arbitrators held at the outset that the various court actions com¬
menced in the Spanish courts were all legitimate under the circumstances; that
Seller’s attitude was at the origin of the situation - the existence of two
conflicting bills of lading - that led to those proceedings and the alleged
deadlock situation, and that the obligations of the parties in the Settlement
Agreement were not disproportionate and such as could be expected in similar
situations.
The arbitrators then proceeded to examine whether the Settlement Agreement
was concluded under duress under the UNIDROIT Principles and concluded
that it was not.
Seller claimed that First Buyer acted in violation of good faith (Art. 1.7
UNIDROIT Principles). The tribunal noted, however, that First Buyer
objected to the inferior quality of the goods immediately and that its request
to stop payment under the letter of credit payable to Seller was logical
considering that End Buyer in turn applied in court for an order to stop payment
under the letter of credit in favor of First Buyer. Similarly logical was First
Buyer’s decision to join its own seller in the court proceedings where it was
sued itself as a seller. The arbitrators added that nothing in the file supported
Seller’s claim that pon authority, End Buyer and First Buyer fraudulently col¬
luded to have the contract declared void in an allegedly plunging market for the
goods.
The arbitral tribunal also dismissed Seller’s claim that First Buyer deviated
from usages and practices previously accepted and applied by the parties in case
of a dispute on the quality or the conformity of the goods (Art. 1.9 UNIDROIT
Principles), holding that the reference to the previous practices of the parties was
irrelevant here, in light of the specific situation created by the presence of two
conflicting bills of lading.

Seller argued that First Buyer did not comply with its duty of cooperation
(Art. 5.1.3 UNIDROIT Principles) by failing to take receipt of the goods and to
pay for them. The arbitral tribunal noted that in the case at issue First Buyer
could not take delivery of the goods, because ownership of the goods was
transferred to End Buyer at the conclusion of the contract, and in any event
taking delivery was impossible since the master of the vessel ordered the closing
of the hatches. The same considerations applied to Seller’s argument that First
Buyer violated its duty to achieve a specific result, here, to physically take over
the goods (Art. 5.1.4 UNIDROIT Principles).
Nor did First Buyer fail in its duty to mitigate losses (Art. 7.4.8 UNIDROIT
Principles) by “taking the side of End Buyer”. The tribunal reasoned that, on the
contrary, First Buyer was sued by End Buyer both in civil and in criminal court
and that it is “common judicial practice in litigation” that a defendant joins its
own contractor in the proceedings. The arbitral tribunal mentioned in this
respect the provision on third parties in Art. 6.2 of the 1968 Brussels
Convention and EU Regulation No. 44/2001.
The arbitrators also denied Seller’s claim that First Buyer committed fraud
(Art. 3.8 UNIDROIT Principles) and that its failure to accept delivery of the
goods led to a situation containing several elements of threat (Art. 3.9
UNIDROIT Principles).
As to fraud, the tribunal held that the facts of the case disproved Seller’s claim
that First Buyer committed fraud by stating that a fraudulent bill of lading was
presented, whereas it had already accepted the goods in the condition in which
they arrived at the Spanish port. In fact, the allegation that the clean bill of lading
was a forgery came first from the master of the vessel and an exchange of tele¬
faxes convincingly showed that First Buyer objected to the goods’ quality
immediately after the first stages of unloading.
As to threat, the arbitrators reiterated their finding that delivery of the goods
upon arrival was impossible at any event because the master had closed the
hatches. Seller’s argument that the court actions commenced in Spain constitut¬
ed a threat also failed. Although Comment 2 to Art. 3.9 of the UNIDROIT
Principles does state that “a threat can also lie on the bringing of a court action”,
it says so in respect of a situation where the court action is not founded and
where the claimant misuses its financial capacity against a respondent without
financial resources to pay lawyers. This was not the case here. Also, the court
action, according to the Comment, must be brought “for the sole purpose of
inducing the other party to conclude the contract on the terms proposed”.
Again, this was not the case here, where Seller was summoned as a third
party in an action commenced by End Buyer and where Seller itself proposed
the Settlement Agreement.

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!
i
Seller’s claim of gross disparity (Art. 3.10 UNIDROIT Principles) failed
because it was not based on gross disparity in the Settlement Agreement but
on the argument that End Buyer arrested the ship for a highly inflated claim.
Finally, the arbitral tribunal dealt with the apportionment of costs. Although
Seller failed in its claim, the tribunal considered that taking into account the time
spent for each stage of the proceedings - and thus in particular on the challenge
to Jurisdiction filed by First Buyer - First Buyer should bear 60 percent of the
costs of the arbitration. Further, because of First Buyer’s behavior in the arbi¬
tration - its “apathy”, its reiteration of its challenge to jurisdiction even after the
preliminary award, its failure to pay its share of the advance on costs - the
arbitral tribunal decided that First Buyer should compensate Seller for its
legal costs relating to the jurisdiction and advance-on-costs phases of the
arbitration.
r ■
Excerpt
I. BACKGROUND
[1] “The first stage is the sale contract agreed between Seller and First
Buyer. ... As it is common practice, the payment had to be made through an
irrevocable letter of credit payable 90 days from the date mentioned on the bill of
lading. It must be noted that the bill of lading is of huge importance for the
payment of the price to Seller. It conditioned the payment; the date of issue
governs the date of payment.
[2] “The goods were loaded at a Russian port, on board a Ukrainian
vessel. . .. The charterer was Company W. The bill of lading which was trans¬
mitted to Bank M, to be included in the documents for the payment pursuant to
the letter of credit, was issued by Company W on behalf of the master of the
vessel.
[3] “Upon arrival of the vessel at the Spanish port of discharge, the captain
ordered the unloading of the goods. It appeared that the goods were damaged. It
results from telefaxes dated on the first day of unloading, and the following
days . .. that First Buyer complained about the lack of conformity of the goods.
[4] “End Buyer, which was also the assignee of the bill of lading, presented the
document to the master of the vessel a few days later. The master declared that
the clean bill of lading was a false one and stopped the unloading in accordance
with Shipping Agency X agency order. . . . Such a declaration led End Buyer to
serve a criminal complaint against First Buyer. Falseness of the bill of lading was
caused mainly because it mentioned under the description of the goods that they

ARBITRAL AWARDS CASE NO. 13009, 2006 1
are ‘clean on board’. The controversial bill of lading was issued by the charterer ,
of the vessel, Company W, on date A. It was sent to Bank M in order to be f
included in the documents of the letter of credit.
[5] “The master of the vessel showed another bill of lading, issued by himself 5
[also on date A]. The description of the goods at the time of the loading opera¬
tions mentions certain defects. . .. These remarks are the same as those men¬
tioned on the ‘mate’s receipt no. T issued by the master of the vessel on date A.
They were requested by the pre-shipment survey issued on the same date A by
Surveyor P, a marine surveyor on consignment, ‘nominated by Shipping Agency
X, to carry out pre-shipment survey captioned consignment and assist master in
clausing bills of lading and mate’s receipt’. The remarks which were mentioned
on the bill of lading were recommended by the pre-shipment survey report with
the following wording:
‘Condition of Cargo and Recommended clauses.

The following clauses, based on total cargo inspection and the above men¬
tioned are recommended to be inserted into bills of lading and mate’s
receipt.’
[6] “Faced with this situation, End Buyer requested the Arrest Court to order
ship arrest as a precautionary measure. The court order was issued on [a certain
date]. First Buyer was also summoned in the proceedings to ratify the ship arrest.
[7] “Once the ship was under arrest, the owners of the vessel, represented by
the master on board, started ‘judicial proceedings to deposit the cargo under the
control of the court until an entitled receptor of the cargo appeared before the
court and justified his right to receive the cargo’. . . .
[8] “Faced with this situation, End Buyer, assignee of the clean bill of lading,
instituted criminal proceedings for fraud before the Criminal Court against
(i) the master of the vessel; (ii) the charterer of the vessel who delivered the
clean bill of lading and (iii) First Buyer, the re-seller of the goods. First
Buyer opposed the criminal action and summoned Seller in the criminal pro¬
ceedings as Seller provided the controversial bill of lading to First Buyer. The
inclusion of Seller in the criminal proceedings was also requested by Bank M.
Simultaneously, in the Criminal Court, End Buyer requested a court order to
stop payment of the letter of credit to First Buyer.
[9] “The payment of the resale from First Buyer to End Buyer had also to be
made through a letter of credit opened by Bank Y. Therefore, First Buyer
requested the blocking of the letter of credit payable to Seller before the First
Court of First Instance. The First Court of First Instance, after examining its
international jurisdiction, decided to transmit the file to the Second Court of

:-s:
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First Instance, which rendered a decision, not a provisional order, blocking the
payment of the letter of credit to Seller.
[10] “At this stage, it could be helpful to show a summary of the civil and
criminal proceedings started after the arrival of the goods at the Spanish port:
(1) At the initiative of End Buyer, a request for a vessel arrest against the
owners of the vessel to guarantee the damage caused to the goods;
(2) At the initiative of End Buyer, a civil ordinary action against the owners of
the vessel and First Buyer to ratify the vessel arrest;
(3) At the initiative of End Buyer, a criminal action, including civil precau¬
tionary measures, against (i) the owners of the vessel, (ii) the charterers
who delivered the clean bill of lading and (iii) First Buyer who sent the
clean bill of lading to End Buyer, for the blocking of the letter of credit
issued in favour of First Buyer (at a later stage, Seller was summoned to
appear in the proceedings by First Buyer);
(4) At the initiative of the owners of the vessel, a request for a judicial deposit
of the cargo until the appearance of a person entitled to receive it;
(5) At the initiative of First Buyer, a request for a court order blocking the
letter of credit in favour of Seller;
(6) At the initiative of First Buyer, a civil action to ratify the blocking of the
letter of credit in favour of Seller.”
II. LEGITIMACY OF CRIMINAL AND CIVIL COURT PROCEEDINGS
1. Ship Arrest
[11] "The civil action to arrest the vessel in order to have a guarantee of the
payment of damages which would compensate damage caused to the goods was
instituted by End Buyer on a certain date. At that date, End Buyer had knowl¬
edge of the clean bill of lading only. It could not be excluded that the mate’s
receipt and the bill of lading describing the goods with some defects which was
issued by the master of the vessel could have been forged in order to protect the
carrier in case damage was caused during the voyage. The situation was clarified
afterwards only when the pre-shipment survey report established by Surveyor P
at the Russian port on date A was disclosed. It could be remembered that
Surveyor P was nominated by Shipping Agency X. Thus neither First Buyer
nor End Buyer had an immediate knowledge of its content.
[12] “About the amount which grounded the arrest, it appears that the largest
part was to secure damage and a smaller part was to secure legal costs. At first
view, it could seem that the total was a huge amount in relation with the global

price of sale of the goods. Nevertheless it must be borne in mind that the
requesting party has to deposit a counter-security by means of a bank guarantee. |
Î
[13] “Therefore, in such a general context, the Arbitral Tribunal does not ;
consider that End Buyer did not act legitimately in requesting the arrest or 1
that the amount could be characterized as a misuse of a judicial action.
[14] “The court decision to arrest was notified to First Buyer on a certain date.
First Buyer was summoned to appear in the pending proceedings to ratify the
ship arrest and to offer a guarantee of the same amount as the amount the ship
arrest was supposed to secure. As First Buyer was the assignor of the clean bill of ,
lading to End Buyer, the summons served against First Buyer is legitimate.”
2. Criminal Proceedings
[15] “After the arrest of the vessel, the master showed the bill of lading he
issued, the mate’s receipt and the survey report. Thus it appeared that the clean
bill of lading could have been forged.
[16] “As it is a common practice amongst the lawyers specialized in litigation,
End Buyer, as private prosecutor, instituted criminal proceedings for fraud and
forgery against all parties having a possible link with the fraud: (i) the charterer
of the vessel who issued the clean bill of lading; (ii) the master of the vessel who
issued the claused bill of lading and (iii) First Buyer, seller of the goods and
assigner of the clean bill of lading. Facing a declaration of falseness of the clean
bill of lading, the criminal complaint against each person who established the
different bills makes sense. It will be up to the court to decide who is the author
of the sincere bill and who drafted the bill which does not describe exactly the
cargo as it was at the time of loading.
[17] “The summons issued against First Buyer could be grounded on a pos¬
sible collusion.
[18] "At the time End Buyer instituted the criminal proceedings against
Company W, the charterer, the master and First Buyer, the proceedings
could be considered as legitimate. A second criminal proceeding was instituted
against Seller at the initiative of First Buyer and of Bank M which had to pay the
letter of credit to Seller on the basis of the clean bill of lading. The inclusion of
Seller in the criminal proceedings at First Buyer’s request is not a misuse of the
defendant’s right. First Buyer could ascertain it had received the clean bill of
lading from Seller. First Buyer was sued because there was suspicion of fraud
around that bill. It is legitimate for First Buyer to wish the examining judge to
hear Seller’s explanation about the situation. The initiative taken by Bank M can
be explained by the will to be directly informed of the conclusion of the inquiry.
As the criminal Spanish system is inquisitorial, like in many European
continental states, only parties to the proceedings can have access to the file.

•i

[19] “Several times Seller mentioned that the arrest of the vessel was a result of
a premeditated action, even a collusion with Spanish authorities referring to the
arrest grounded on ship deficiencies. The Arbitral Tribunal has not found in the
file any element of whatever nature, intrinsic or extrinsic, to give some substance
to such an allegation.
[20] “There is no evidence of any perverse joint action between First Buyer
and End Buyer. It is sure that, both being Spanish trade entities, communication
between them is easier than between two foreign entities. Moreover referring to
the possible falseness of the bills of lading, both were on the same side because of
the linkage between Bank Y which was instructed by End Buyer to pay a letter
of credit in favour of Bank M and Bank M which was instructed by First Buyer
to pay a letter of credit in favour of Bank R, the confirming bank, for the final
payment to Seller. Nevertheless nothing in the file shows that End Buyer and
T
First Buyer could have created an artificial dispute about the clean bill of lading
in order to have the sale contact declared null and void because of a decrease of
the price of the goods in the commodities market.”
3. Blocking of the Letter of Credit at First Buyer's Request
[21] “At the time First Buyer requested the First Court of First Instance to
block the letter of credit ... the following objective elements were known to all
involved parties: (i) existence of two bills of lading; (ii) master’s declaration that
the bill of lading issued by the charterer was false; (iii) Surveyor P’s report
mentioning defects of the goods; (iv) mate’s receipt reproducing those mentions;
(v) criminal action against the owners of the vessel; (vi) court order to stop
payment of the letter of credit through which End Buyer had to pay First
Buyer and (vi) master’s decision to stop unloading. To say the least, all those
elements create confusion.
[22] “The possible use of precautionary measures would have the effect to
reverse the rule ‘pay first, discuss afterwards’. In such a controversial context,
the request for precautionary measures in court was legitimate.
[23] “The First Court of First Instance considered that it was grounded. After
having ordered the preventive precautionary measures, the First Court of First
Instance transmitted the file to the Second Court of First Instance which was
considered by the judge as having jurisdiction as to the merits of the dispute. The
case is still pending before the Second Court of First Instance.”
4. Shipowners' Request for a Judicial Deposit of the Cargo
[24] “The shipowners’ request was introduced at a time the vessel was under
arrest to guarantee the compensation for the damage caused to the goods. The

?
owners and the master were the subject matter of criminal enquiries for fraud
and forgery. None of these civil and criminal proceedings could be closed rap¬
idly. On the other hand, there is a need for a vessel to be used actively for
transport operations. Therefore the will of the owners of the vessel to escape
from the dispute opposing Seller of the goods, in that moment it was First Buyer,
to the sub First Buyer, End Buyer, and afterwards Seller, as original seller, can be
understood easily.
[25] “The Arbitral Tribunal does not consider that owners’ request had a
perverse aim. Its purpose was to allow the vessel to continue transport activity,
undoubtedly not to cause harm to Seller.”
5. Conclusion
[26] "As a conclusion of the study of the civil and criminal proceedings insti¬
tuted by End Buyer, First Buyer and the owners of the vessel, the Arbitral
Tribunal considers that none of them was illegitimate. On the contrary, a lawyer
having average professional capability would have been negligent in not having
advised a client in a similar situation to go to court, specifically to request an
order to stop payment of the letters of credit.
[27] “To escape from the situation born from the judicial proceedings which
could last for years, the parties concluded a settlement agreement.”
III. THE SETTLEMENT AGREEMENT
1. Description of Obligations Agreed in the Settlement
[28] “The proposal for a settlement agreement was made by Seller’s lawyer.
First Buyer was represented by its lawyer. In a preamble, the parties note the
‘disagreements between the parties, that do not need to be described’ which
arose from the sale contract and the documentary credit. They refer to the
case which was pending before the Second Court of First Instance and declare
their common will to settle their respective duties.
[29] “The settlement agreement has seven parts:
(1) In the first clause, the parties agree to put an end to the sale contract
‘transferring to “Seller” the ownership and the rest of the rights, claims
and obligations caused by or in relation to the sale contract of the men¬
tioned goods, including, eventually, the ones that could have been pur¬
chased due to the bill of lading’. First Buyer allows Seller to cancel any
obligation derived from the contract agreed between First Buyer and End
Buyer. First Buyer agrees to send back to Seller ‘all the original documents

I

that had been kept, have been received or can be received in the future from’
Seller or ‘from its agents, banks or other intermediaries in relation to the
contract of sale’. It appears clearly from the clause that each party is wishing
to come back to the situation prior to the conclusion of the contract;
(2) In the second clause, Seller agrees to pay a certain sum for legal costs. The
fairness of the clause depends on the liability of Seller in causing the situation
which obliged First Buyer to appear in court. It must be remembered that
First Buyer was sued by End Buyer in criminal court and was claimant against
Seller before the First Court of First Instance and the Second Court of First
Instance. The amount could take also into account the legal costs inferred
from the assistance given by First Buyer’s lawyer on several occasions as well
as in the study of the settlement agreement proposed by Seller’s lawyer,
'
(3) The third clause refers to ‘the cancellation of the joint agreement of the
documentary credit’. It mentions an agreement to cancel the letter of credit
■
and to obtain the approval of the bank for the cancellation. First Buyer
submits . . . that it asked Seller four times to comply with its obligations. It
mentions that it was Seller’s passivity which required maintaining the
blocking of the letter of credit and the proceedings;
(4) The fourth clause incorporates a specific agreement to cancel the proceed¬
ings for conservatory measures pending before the Second Court of First
Instance. It is mentioned that Seller and First Buyer ‘will present ... a
written joint withdrawal caused by the agreement bearing, each party,
its own legal costs and half the common legal costs’. It appears that as a
result of Seller’s refusal to cancel the letter of credit, the envisaged docu¬
ment has never been established. Clause four mentions also the withdrawal
by First Buyer of: (i) the summary court proceedings . . . before a criminal
court (the Second Criminal Court) and (ii) the voluntary jurisdiction sum¬
mary proceedings . . . before the First Criminal Court. Those two pro¬
ceedings have been closed. The clause includes also a general statement
about the withdrawal of ‘whatever other civil and/or criminal proceedings
relating to the described facts and to those ones caused by the present
agreement and bearing each party its own legal costs in all the proceedings’.
The Arbitral Tribunal invited the parties to mention if the arbitral pro¬
ceedings could be included in the scope of the clause. ... ;
(5) The fifth clause mentions that the settlement
‘agreement will depend irrevocably on the following facts:

(i) that End Buyer withdraw from criminal proceedings before the Second
Criminal Court ... ;
(ii) that the voluntary cancellation of the contract of sale and purchase
between First Buyer and End Buyer is accepted and there is a complete
settlement and waiving of actions by End Buyer against First Buyer, and

that End Buyer renounce, as well, to the ownership and whatever other ;
rights upon the goods;
(iii) that End Buyer lift the arrest of the vessel hold in the proceeding ... -
before the Arrest Court, and present a written withdrawal in the procee- :
ding . . . before the Arrest Court, bearing each party its own legal costs;
(iv) that Bank M present a written withdrawal in all proceedings relating to
all the facts which there are a party to, specially in the summary procee¬
dings . . . before the Second Criminal Court, without claiming any legal
costs to any of the parties and renouncing to all its rights derived from the
letter of credit, carrying out the devolution to Seller of all the original
documents that are kept by the bank.'
Those are ‘facts' the performance of which depends on the will of third parties. It
appears from the exchange of briefs that: (i) End Buyer withdrew the criminal
claim; (ii) the sub-sale contract between First Buyer and End Buyer was can¬
celled; (iii) End Buyer lifted the arrest of vessel. As it has been previously men¬
tioned in this award ... in the absence of a common request from First Buyer
and Seller, the blocking of the letter of credit is still pending. Therefore Bank M
could not perform the ‘withdrawal’ which is mentioned in the settlement
agreement;
(6) The sixth clause mentions the usual final agreement in a settlement agree¬
ment: ‘the duties between the parties are meant to be accomplished and
cancelled with the transaction and express renounce of rights and actions
and the commitment of not claiming or asking for anything else’. Seller’s
request to cancel the agreement for having been accepted under duress
deprives that commitment of effectiveness, at least as far as the present
dispute is concerned;
(7) The seventh clause ... is not relevant in this dispute.”
2. Balance of Obligations Agreed in the Settlement
[30] “The Arbitral Tribunal has presented the facts which were at the origin of
the situation for the settlement of which End Buyer, the owners of the vessel,
First Buyer and Bank M summoned each other in court and, at a certain point,
considered it was helpful to call upon Seller as third party or to sue it directly in
ex-parte or in adversary proceedings.
[31] “The court proceedings which are characterized by Seller as being the
‘deadlock’ from which it had to escape through the settlement agreement have

§

been analysed. Different clauses of the settlement agreement have been
described. At present, the Arbitral Tribunal is analysing the balance of rights
and duties agreed by the parties in the settlement agreement.
[32] “As to the substance of the dispute on the quality or the conformity of the
goods, there is no doubt that according to the Vienna Sale Convention [United
Nations Convention on Contracts for the International Sale of Goods, Vienna
1980 - CISG] system a contract can be declared void in some restricted circum¬
stances only. A declaration of avoidance of the contract is admitted in case of
fundamental breach which is defined by Art. 25 in the following terms: ‘a breach
of contract committed by one of the parties is fundamental if it results in such a
detriment to the other party as substantially to deprive him of what he is entitled
to expect under the contact . . . \ Whether or not there is a fundamental breach,
the creditor of the non-performed obligation has to allow the debtor to repair
the non performance.
[33] “Perhaps the circumstances of the present case would not have allowed a
declaration of avoidance. A reduction of the price taking into account the unex¬
pected industrial burden caused by the defect of the goods could have been a
possible amicable settlement. But it is not the Arbitral Tribunal’s duty to settle a
dispute about the quality or the conformity of the goods in accordance with
what was agreed by the contracting parties. The Arbitral Tribunal’s duty is to
determine if the settlement was agreed by Seller under ‘economic duress’.
[34] “Seller points out that the court proceedings were at the origin of the
deadlock situation from which it could escape only through the settlement
agreement. That is true. But it seems helpful to remember that the starting
point, directly or indirectly, of the proceedings, is the existence of two bills
of lading.
[35] “Deciding about falseness or forgery, which are criminal concepts, could
have been the task of criminal courts. The award is restricting its examination of
the facts to the accuracy of the statements contained in the bills of lading.
[36] “Seller considers that the bill of lading mentioning the goods as ‘clean on
board’ issued by Company W, the charterer, is in accordance with trade usages
and commercial practice. It submits that in spite of some defects of the goods,
the practice is to issue a clean bill of lading against a letter of indemnity. One can
understand that the purpose of the practice is to avoid delay in international
trade and to settle amicably disputes about small defects of the goods. The
drafting of a letter of indemnity which would have been sent to First Buyer
would have certainly solved most problems in this case. But it does not appear
from the file that a letter of indemnity was issued at any moment.
[37] “Seller insists that the goods were coming directly from the factory, a
factory previously visited by First Buyer executives, and thus were of good
quality. It appears from Surveyor P’s report that the goods were not of the
Reprinted from the Yearbook Commerciai Arbitration 607
E
!
same quality as if they were delivered directly from the factory. Surveyor P is a
surveyor of consignments whose report has credit and significance for the
Arbitral Tribunal. The report would not have mentioned imagined defects to
satisfy a possible request by First Buyer in the context of reduction of the price.
Surveyor P was nominated by the agency Shipping Agency X which is also an
entity independent from First Buyer.
[38] “Consequently the Arbitral Tribunal considers that Surveyor P’s report is a
document issued by an independent surveyor which has to be accepted as accurate.
[39] “The report mentions the defects previously quoted. . . . An important
element for this dispute is the mention immediately under the third heading:
‘3 Condition of cargo and recommended clauses.

The following clauses based on total cargo inspection and the above
mentioned are recommended into bills of lading and mate’s receipt.’
In the face of such a ‘recommendation’ any master of any ship, in any port of the
world, would have acted accordingly. Therefore the mate’s receipt and the bill of
lading issued by the master had to include the recommended clauses. On the
contrary, a master who would have decided to omit the recommended remarks
would have committed a professional breach.
[40] “As the clauses were mentioned in the documents at the time of loading,
they were also protection clauses for the master and the owners of the vessel
referring to a possible liability for damage caused during the sea voyage.
[41] “End Buyer which had in hand the clean bill of lading only was in trouble
in front of the master’s declaration about the defects and the falseness of the bill.
There is no doubt that when End Buyer knew of the existence of three docu¬
ments (survey report, mate’s receipt, bill of lading) contradicting the clean bill of
lading, suspicion increased. That gave rise to confusion which can objectively
explain the institution of a court action. As a growing ball of snow, the first court
action gave birth to five others. Seller’s silence when First Buyer was facing
claims brought by End Buyer did not help to cool the situation.
[42] “Consequently, the Arbitral Tribunal considers that Seller’s attitude is at
the origin of the court proceedings which created the situation from which it
tried to go away through the proposal of a settlement agreement.
[43] “As to the obligations accepted by both parties in the settlement agree¬
ment, they are usual ones in a similar situation. None which was not possible to
comply with was accepted by Seller. Seller’s lawyer, who was not aware of his
client’s intention to have a recourse against the validity of the agreement, would
not have accepted an obligation the performance of which would have been
unrealistic or too heavy. The balance between the obligations of each party is
therefore not disproportionate.”

J

IV. DURESS
[44] “Having decided that Seller’s attitude was at the origin of the situation it
characterized as a ‘deadlock’, that the introduction of court proceedings was
legitimate, that the rights and duties agreed in the settlement agreement were
balanced, the Arbitral Tribunal is scrutinizing at present if the settlement agree¬
ment was concluded by Seller under economic duress.
[45] “In accordance with the previous Tribunal’s decision in the preliminary
award, Seller is requesting the scrutiny to be made with reference to
UNIDROIT Principles.
[46] “As to the application of Art. 1.7 of the UNIDROIT Principles ... on
good faith and fair practices,1 the Arbitral Tribunal, contrary to Seller’s assess¬
ment, considers that First Buyer claimed from the beginning against the quality
of the goods. First Buyer’s letter . .. mentions the following: ‘By the present we
inform you that the shipment sold by you under invoice ... is currently being
received at the Spanish port in deplorable state and condition and totally out of
specification rules, of which we consider you entirely responsible’.
[47] “About Seller’s comments that the remarks on the mate’s receipt could
have led to the examination of the goods upon arrival ... the Arbitral Tribunal,
studying the facts at the origin of the court proceedings has mentioned that the
captain closed the hatches because he considered the bill of lading shown by End
Buyer was a false one. Then no survey of the goods at the time of their unloading
was feasible. Again First Buyer cannot be held responsible for the issue of a
‘clean bill of lading’.
[48] “About the fact that First Buyer requested the blocking of the bill of
lading because End Buyer applied in court to have an order to stop payment
of the letter of credit in favour of First Buyer .. . that is a proved fact.
Nevertheless it does not show any bad faith attitude on First Buyer’s part. It
is helpful to have in mind that the goods were re-sold to End Buyer during sea
carriage, at least without being previously examined by First Buyer. Thus it is
logical that, in front of an action grounded on falseness/forgery against it and
requesting nonpayment of the letter of credit issued in its favour, First Buyer
summons its own seller to appear in court.
1. Art. 1.7 of the UNIDROIT (International Institute for the Unification of Private Law) Principles
of International Commercial Contracts 2004 reads:
“'(Good faith and fair dealing)
(1) Each party must act in accordance with good faith and fair dealing in internacional trade.
(2) The parties may not exclude or limit this duty.”

[49] “As previously mentioned, nothing in the file shows a likely fraudulent
collusion between port authority, End Buyer and First Buyer in order to have
the contract to be declared void in a plunging market for the goods at issue.
Therefore Seller has not demonstrated that First Buyer acted in bad faith or
against fair practices.
[50] “As to the application of Art. 1.9 of the UNIDROIT Principles,2 Seller
asserts that First Buyer deviated from ‘usages and practices’ previously accepted
and applied by the parties in case of a dispute on the quality or the conformity of
the goods. . . .
[51] “The Arbitral Tribunal considers that in the circumstances of the situa¬
tion it is dealing with, the reference to the previous practices of the parties is
irrelevant. The irrelevance comes from the specific situation created by the
presence of two bills of lading. The duality of the bills caused uncertainty
about the origin of the damage to the goods (that led End Buyer to request
the vessel to be arrested). Secondly, the duality destroyed confidence in the
letter of credit payment system (that led End Buyer and First Buyer to request
to have the letters of credit under which they were debtors to be blocked by a
court decision). Previous parties’ practices could have been relevant only in case
of a dispute restricted to quality or conformity issues.
[52] “As to the duty of cooperation mentioned in Art. 5.1.3 of the
UNIDROIT Principles,3 Seller submits that ‘an unworkable or inoperative
letter of credit for whatever reason does not wash away First Buyer’s obligation
to fulfil its main duties under a sale contract’ which are ‘to take receipt of the
goods and to pay for them’.
[53] “The Arbitral Tribunal considers helpful to remember that First Buyer
resold the goods to End Buyer. The sale of the goods by the purchaser to another
First Buyer is not forbidden by the Vienna Sale Convention. Even more, it is
envisaged by several provisions, amongst them, Art. 68 about the passing of
2. Art. 1.9 of the UNIDROIT Principles 2004 reads:

"( Usages and practices)
(1) The parties are bound by any u sage to which they have agreed and by any practices which they
have established between themselves.
(2) The parties are bound by a usage that is widely known to and regularly observed in
international trade by parties in the particular trade concerned except where the application of
such a usage would be unreasonable.”
3. Art. 5.1.3 of the UNIDROIT Principles 2004 reads:
"{Co-operation between the parties)
Each party shall cooperate with the other party when such co-operation may reasonably be
expected for the performance of that party’s obligations.”
610 Reprinted from the Yearbook Commercial Atbitration

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_
risks. That Article deals precisely with the passing of risk when the goods are
sold during carriage. That seems to be the present situation. Risk as well as the
goods property were transferred to End Buyer at the time of the conclusion of
the contract. Therefore the obligation to take receipt of the goods could not be
performed by First Buyer.
[54] “In any case, the reality is different from what is described by Seller. It is
not a refusal to take receipt decided by First Buyer or End Buyer, but a refusal to
deliver decided by the master of the vessel who ordered the closing of the
hatches in accordance with the instructions given by Shipping Agency X
when facing two bills of lading. As it has been previously seen, the Arbitral
s Tribunal decided that Seller was liable for that situation. Thus First Buyer did
not ignore any duty to cooperate with Seller.
[55] “As to the duty to mitigate the losses envisaged by Art. 7.4.8 of the
UNIDROIT Principles,4 Seller considers that ‘First Buyer’s taking the side
■i
of End Buyer did not mitigate harm, on the contrary, it led to further harm
and severe deterioration of Seller’s position’.
[56] “Again, Seller’s position ignores the reality. It is a matter of fact that First
Buyer was sued by End Buyer in civil court and in criminal court. The grounds
for civil and criminal action were falseness and forgery of the clean bill of lading.
It is common judicial practice in litigation that a defendant requests that its own
contractor would be summoned to appear in court. An example of this practice
is given by Art. 6.2 of the Brussels Convention on Jurisdiction and Recognition
of Judgments or of the EEC Regulation 44/2000,5 which provides a specific rule
for third-party proceedings. Acting according to such a rule, or a similar one, is
not taking the side of the claimant. The purpose of such a rule of procedure is to
“(Mitigation of harm)
(1) The non-performing party is not liable for harm suffered by the aggrieved party to the extent
that the harm could have been reduced by the latter party’s taking reasonable steps.
(2) The aggrieved party is entitled to recover any expenses reasonably incurred in attempting to
reduce the harm."
5. Art. 6.2 of the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in
Civil and Commercial Matters and of Council Regulation (EC) No. 44/2001 of 22 December 2000
on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
reads:
“A person domiciled in a Member State may also be sued:
2. as a third party in an action on a warranty or guarantee or in any other third party proceedings,
in the court seised of the original proceedings, unless these were instituted solely with the object
of removing him from the jurisdiction of the court which would be competent in his case. ..."

have in court a complete situation which allows the judge to decide, being better
informed than in a truncated trial. Thus First Buyer did not fail to mitigate the
loss.
[57] “Seller refers also to Art. 5.1.4 of the UNIDROIT Principles6 on the duty
to achieve a specific result, According to the Claimant, ‘First Buyer must phys¬
ically take over the goods’.
[58] “The Arbitral Tribunal does not wish to repeat the considerations which
have been just mentioned above. It summarizes the grounds of its decision
remembering that the captain stopped the unloading because he considered
that the clean bill of lading was a false one. We must have in mind also that
the owners of the vessel requested to be allowed to deposit the goods under
court control until a final decision on the bills of lading. Therefore First Buyer
could not take over the goods ‘physically’.
[59] “As to Art. 3.8 of the UNIDROIT Principles on fraud,7 Seller maintains
that First Buyer committed fraud ‘by stating in ex parte summary proceedings
that a fraudulent bill of lading was presented, whereas: (i) First Buyer had
already accepted the goods in the condition as they arrived at the Spanish
port; (ii) the mate’s receipt contained merely immaterial remarks, not serious
enough to be treated as fraud’.
[60] “The Arbitral Tribunal has already mentioned that the first in time alle¬
gation of fraud was not coming from First Buyer. The master and the owners of
the vessel were the first people to mention that the clean bill of lading was a false
one.
[61] “About the acceptance of goods in the condition they were upon arrival at
the Spanish harbour, that is denied by First Buyer. First Buyer has shown an

“( Duty to achieve a speáfic result - Duty of best efforts)
(1) To the extent that an obligation of a party involves a duty to achieve a specific result, that party
is bound to achieve that result.
(2) To the extent that an obligation of a party involves a duty of best efforts in the performance of
an activity, that party is bound to make such efforts as would be made by a reasonable person of
the same kind in the same circumstances.”
"(Fraud)
A party may avoid the contract when it has been led to conclude the contract by the other party’s
fraudulent representation, including language or practices, or fraudulent non-disclosure of cir¬
cumstances which, according to reasonable commercial standards of fair dealing, the latter party
should have disclosed.”

7ZZ7í?77.L . :v 1
exchange of telefaxes which are convincing documents. The dispute about the
quality of goods began immediately after the first stages of unloading. . ..
[62] “Seller refers again to the mate’s receipt remarks. It was not the mate’s
receipt remarks which caused huge litigation. As Seller previously mentioned
they could have been solved through ‘a letter of indemnity’, the existence of
which has not been evidenced in these arbitral proceedings. Litigation was
caused by the presence of the Surveyor P’s report established at the time of
loading and a second bill of lading, issued by the owners of the vessel, bearing
the same date as the bill issued by Company W, and including remarks recom¬
mended by the survey report. Seller cannot ignore so long the survey report and
the claused bill of lading. They change completely the result of the analysis of the
situation. First Buyer cannot be blamed for having taken into consideration
those elements which are external to it having been created outside of its sphere
of influence.
í [63] “Seller refers also to Art. 3.9 of the UNIDROIT Principles on threat.8 It
mentions several facts which it considers they characterise as threat: (i) the sale
through auction announced by the shipowners; (ii) the risk that End Buyer
could buy the goods at low price through the auction process; (iii) the destruc¬
tion of its commercial reputation because of the sale of home-made goods
through auction. Seller maintains it would not have been in such a situation
if, primarily, First Buyer had fulfilled the obligation to take delivery of the
goods upon arrival and complained about the quality afterwards.
[64] “The Arbitral Tribunal stresses again that the delivery upon arrival was
not possible because the master of the vessel stopped unloading the goods. Its
decision was based on the existence of the clean bill of lading which he did not
issue. The clean bill of lading was sent by Seller to Bank M in order to get
payment of the letter of credit. As to the sale through auction, it should be,
in any case, authorized by a court decision. If Seller felt threatened, the cause is
not in First Buyer’s behaviour.
[65] “Seller submits also that, according to Comment 2 to Art. 3.9 of the
UNIDROIT Principles, a ‘threat can also lie on the bringing of a court action’.
8. Art. 3.9 of the UNTDROIT Principles 2004 reads:

“(Threat)
A party may avoid the contract when it has been led to conclude che contract by the other party's
unjustified threat which, having regard to the circumstances, is so imminent and serious as to leave
the first party no reasonable alternative. In particular, a threat is unjustified if the act or omission
with which a party has been threatened is wrongful in itself, or it is wrongful to use it as a means to
obtain the conclusion of the contract.”
¡
[66] “The UNIDROlTs Comment under Art. 3.[9] is certainly right in so far
as the court action is not grounded and in situations where the claimant misuses
its financial capacity against a respondent without financial resources to pay
lawyers. Seller is not deprived of financial capacity to appear as a respondent.
[67] “Referring to the six court actions in the present dispute - (i) court
ordered the arrest of the vessel; (ii) in criminal investigation, the captain declared
the clean bill of lading was false . . . and (ill) courts ordered Bank Y and Bank M
to stop payment of the letter of credit in favour of First Buyer and Seller respec¬
tively - the Arbitral Tribunal does not consider First Buyer misused its right to
apply to court in order to threaten Seller.
[68] “Anyhow the UNIDROIT Comment quoted by Seller continues as fol¬
lows: ‘... for the sole purpose of inducing the other party to conclude the
contract on the terms proposed’. In the present situation, it is a matter of fact
that Seller was summoned as a third party and that it was Seller itself which
proposed the settlement agreement the nullity of which it claims in this dispute.
[69] “As to the application of Art. 3.10 of the UNIDROIT Principles on gross
disparity,9 Seller asserts that End Buyer started a disproportionate action ‘by
arresting the ship for a highly inflated claim of about the half of the total
purchase price*.
[70] “The Arbitral Tribunal is afraid that Seller misunderstood the
UNIDROIT Principle as to the subject matter it refers. Gross disparity
which is envisaged would have to be included in the settlement agreement.
As previously decided, rights and duties of both parties agreed in the settlement
are well balanced. Anyhow, it was the task of the Spanish court which had to
settle the action to decide if the amount for which guarantee was requested was
excessive or not.”

“(Cross disparity)
(1) A party may avoid the contract oran individual term of it if, at the time of the conclusion of the
contract, the contract or term unjustifiably gave the other party an excessive advantage. Regard is
to be had, among other factors, to
(a) the fact that the other party has taken unfair advantage of the first party’s dependence, eco¬
nomic distress or urgent needs, or of its improvidence, ignorance, inexperience or lack of bargain¬
ing skill, and
(b) the nature and purpose of the contract.
(2) Upon the request of the party entitled to avoidance, a court may adapt the contract or term in
order to make it accord with reasonable commercial standards of fair dealing.
(3) A court may also adapt the contract or term upon the request of the party receiving notice of
avoidance, provided that that party informs the other party of its request promptly after receiving
such notice and before the other party has reasonably acted in reliance on it. The provisions of
Article 3.13(2) apply accordingly.”

V. CONCLUSION
[71] “Considering that the Respondent to Seller’s action to declare null and
void the settlement agreement for ‘duress’ is First Buyer, the success of Seller’s
allegation depends on facts, attitude, judicial actions characterizing duress which
have been effectively caused directly or indirectly by First Buyer.
[72] “The Arbitral Tribunal has not found any fact, attitude or judicial action
characterizing duress caused directly or indirectly by First Buyer. First Buyer,
like Seller, was caught in a large web of six civil and criminal proceedings the
cause of which is the existence of the clean bill of lading issued by Company W,
charterer of vessel. That clean bill of lading did not mention clauses recommend¬
ed by Surveyor P’s report which were included in the bill of lading, bearing the
same date, issued by the master of the vessel on behalf of the owners. First Buyer
is in no way involved in the creation process of any of those bills of lading.
[73] “Seller which transmitted the clean bill to Bank M in order to be paid in
accordance with the letter of credit ignored the claused bill of lading persistently.
It did not mention its existence in the request for arbitration. It minimized its
effect in its answer to the Arbitral Tribunal’s request about the duality of bills of
lading. Ignoring its existence, Seller tried to reduce the debate to the more
common situation where a bill of lading is issued clean of any clause, in spite
of minor defects of the loaded goods, against a letter of indemnity in favour of
the receiver of the cargo. Acting along this way, Seller has given the impression it
was trying to persuade itself of the existence of facts, and court proceedings
different from what the reality was. First Buyer cannot be held responsible for
such a wrong analysis of the situation.”
VI. COSTS
[74] “The English text of the agreement on costs mentioned in clause 4 of the
Settlement Agreement is the following:
‘[First Buyer and Seller] will present a written withdrawal in whatever

other civil and/or criminal proceedings relating to the described facts
and to those ones caused by the present agreement and bearing each
party its own legal costs in all the proceedings.’
Thus the Arbitral Tribunal invited both parties to present comments on the
possible application of the provision to the present arbitration proceedings in
so far as it stipulates that each party will bear its own costs.
[75] “In their respective answers, First Buyer . . . and Seller ... declared it was
their understanding of the clause that it should be restricted to the proceedings

which were going on at the time of the signature of the Settlement Agreement.
First Buyer wrote the following:
‘The share on costs was only agreed when both parties had withdrawn from
the proceedings instituted, and not in the case of one party suing the other’.
Seller wrote the following:
T am of the opinion that clause fourth of the litigious settlement agreement

refers to the legal costs each party has to bear itself as incurred or to be
incurred in the proceedings pending at the time the settlement agreement
was concluded only. Various proceedings in Spain, both civil and criminal,
were then pending, in relation to this matter (although Seller was no party
in the criminal proceedings). I have been advised by the Spanish solicitor
who assisted Claimant in concluding the settlement agreement, that in a
correct translation from Spanish into English the clause should read:
“. .. First Buyer and Seller will present a Written Withdrawal in whatever

other civil and/or criminal proceedings commenced in relation to the
described facts and which they are parties to, by virtue of the present
agreement and bearing each party its own legal costs in all the proceedings.”
(Emphasis added).
In his opinion, the parties indeed referred themselves in this clause to the
proceedings ongoing or commenced at the time.’
Consequently, in the absence of any agreement between the parties on another

way of sharing the costs, the Arbitral Tribunal is applying Art. 31 of the
Arbitration Rules.
[76] “Answering the question of the Tribunal about the amount of costs
incurred in the proceedings, Seller mentioned the following:
‘Throughout this arbitration, Claimant had incurred costs amounting to a

certain sum, consisting of legal fees and some disbursements, such as transla¬
tion costs. If a detailed specification is required, please let me know. A sig¬
nificant part to be attributed to the debate with respect to the jurisdiction/lis
alibi pendens and applicable law challenges, for which in my view Respondent
has to reimburse Claimant in any event, regardless of the final outcome of this
arbitration on the merits as the Arbitral Tribunal found against Respondent’s
invoked preliminary defences by partial award. This is as far as I understand
quite usual in ICC arbitration. Above all, this seems reasonable to me.’

iH
[77] “In order to take into consideration Seller’s request, the Tribunal invited
both parties to mention the costs incurred in each of the three stages of the
proceedings (jurisdiction etc.; costs; merits). Seller’s answer was the following:
‘this amount can be allocated over the three stages as follows: (i) jurisdic¬
tion/applicable law: 50 percent; (ii) costs: 5 percent; (iii) merits: 45 percent.
This division of costs is fair and reasonable for the following reasons:
(i) Respondent submitted six extensive memoranda challenging the juris¬
diction of arbitrators (undated but received by Claimant’s representative on
[dates indicated]) and one on applicable law. ... In reply, Claimant filed
memoranda on these issues on [dates indicated];
(ii) on the merits, Claimant submitted a Request for Arbitration on [date
indicated] and memoranda on [dates indicated]. These are the most impor¬
tant documents, correspondence by fax, e-mail etc. is for practical reasons
not taken into account.’
The Arbitral Tribunal considers Seller’s costs are reasonable.

[78] “First Buyer’s answer was the following:
The total amount of costs incurred by respondent is in the grounds of [a

certain sum] as follows: Jurisdiction/applicable law: 100 percent. The costs
incurred in the proceedings are on the basis of the number of submissions
served to the court in the jurisdiction discussion. First Buyer refrains from
sending any cost incurred in the rest of the proceedings, as it could be
understood as a tacit acceptance of the jurisdiction of the Arbitral Tribunal,
but makes formal and express reservation of rights to counter-claim the
amount of costs incurred in the proceedings as direct costs, damages and
prejudices before the competent court.’
[79] “In a message, the Arbitral Tribunal informed First Buyer that an answer
about the allocation of the costs between the three stages of the proceedings
would not be interpreted as an acceptance of the Arbitral Tribunal’s jurisdiction
and invited it to communicate the requested information before or on a certain
date. It specified that, in the absence of any answer, the Arbitral Tribunal would
consider there is no cost incurred during the stage of the proceedings on the
merits. As First Buyer has not answered up to this day, the Arbitral Tribunal
considers no cost has been incurred during the stage on the merits of the dispute.
[80] "In accordance with Art. 31.3 of the [ICC] Rules, ‘the final award shall fix
the costs of the arbitration and decide which of the parties shall bear them or in
what proportion they shall be borne by the parties’. Applying this provision, the

Arbitral Tribunal considers it must analyze the attitude of the parties during
each stage of the proceedings.
[81] “As to Seller’s attitude, it is a matter of fact that the claim to have the
Settlement Agreement declared null and void has been dismissed. It is not so
frequent that the claimant is dismissed entirely as to the merits of the claim. It is
not common that the local lawyer is requested to sign a settlement agreement
while the party has in mind the intent to have the settlement declared null and
void for duress. It seems the decision to sue was taken without a cold and deep
analysis of the whole situation.
[82] “As to First Buyer’s attitude, the Arbitral Tribunal understands quite
well the disappointment of a party who could have legitimately thought that
a dispute was definitively setded when facing a request for arbitration.
Nevertheless, this is a burden inherent to business activities. First Buyer should
have participated with fairness in the arbitral proceedings. The Arbitral Tribunal
notes that after having invited the Tribunal to draw up the Terms of Reference,
First Buyer remained silent when the Tribunal submitted the sixth version of the
Terms of Reference. That apathy caused delay until the approval of the Terms by
the International Cotut of Arbitration.
[83] “The challenge of the Tribunal’s jurisdiction can be considered as legit¬
imate in so far there could be some uncertainty about the reciprocal effect
between a setdement agreement and the main contract. Nevertheless, it is
contrary to a basic principle of arbitration to refuse payment of one’s share
of the provision on costs as if the challenge was successful. At the very least,
once the controversy was setded by the Tribunal, First Buyer would have acted
accordingly, paying its share of the provision on costs and refraining from
reiterating the challenge of jurisdiction in subsequent briefs.
[84] “Therefore the Arbitral Tribunal considers that the costs related to the
challenge of jurisdiction and to the proceedings closed by the award on costs
have to be borne by First Buyer. Thus First Buyer will bear its own costs and
will pay Seller [a certain sum].
[85] “Referring to the costs incurred for the dispute on the merits, Seller will
bear its own costs. As First Buyer did not mention any cost for the stage of the
proceedings on the merits, no reimbursement is ordered.
[86] “As to the ICC costs of the arbitration, it is a matter of fact that the Court
takes into consideration the time spent by the arbitrators to decide their fees.
Therefore if the Arbitral Tribunal would not have spent time studying parties’
submissions and drafting the awards on jurisdiction and costs, some reimburse¬
ment could have been ordered. The Arbitral Tribunal, taking into account time
it spent for each stage of the proceedings, decides that 60 percent of the costs
have to be borne by First Buyer.”
(....)

4
Parties: Claimant: Distributor Z (US)

Respondents: (1) Company A (Mexico);
(2) Subsidiary B (US)

arbitration:
2
Subject matters: - United Nations Convention on Contracts for the

- established practice under CISG
- violation of good faith
- termination of contract
- abuse of right
Summary
A manufacturer concluded parallel contracts with two US distributors. The

arbitrators found that the fact that three earlier contracts contained identical
termination clauses did not on the facts of the case constitute an established
practice under the CISG of offering the same termination terms in the fourth
contracts as well However, respondents acted in bad faith when concealing
the differences in the fourth contracts from claimant. The legal consequences
of this violation of good faith were assessed under Mexican law which
supplemented the CISG as per the parties’ agreement - because the CISG
—
though imposing a general duty of contractual good faith does not expressly
define its content and limits or provide remedies for its breach. Matters not
addressed in the CISG are to be settled in conformity with the general
principles on which the CISG is based or, in the absence of such principles,
in conformity with the applicable law. Claimant failed to prove any relevant
CISG principle. Under the applicable Mexican law, respondents’ breach of
good faith did not justify the granting of damages here because it was not
determinative for the conclusion of the contract at issue. Nor did the con¬
tract’s termination amount to an abuse of rights, since it served a useful
purpose and was not given with the intention to cause damage. Further,
claimant’s conduct, which was also to be taken into account under Mexican

law, showed that claimant chose upon discovery of the deception not to act
upon it. Respondents were therefore allowed to terminate the contract
without cause and were not liable for damages.
Manufacturer X, a Mexican company, established two entities to assist it to

export its products to the United States: Company A (First Respondent) and
Subsidiary B (Second Respondent). First Respondent and Second Respondent
(collectively, Respondents) then entered into a series of importer agreements
with Distributor Z (Claimant) and another US importer (Second Importer). As
part of this two-importer strategy, the first three agreements concluded with
Claimant and Second Importer (the First, Second and Third Agreements) were
negotiated and executed simultaneously and differed only as to the respective
territories and quotas.
When the parties negotiated the Fourth Agreements, Respondents introduced
certain differences in respect of Claimant, allegedly because they no longer had
full faith in Claimant due to certain stated facts (inter alia, purchase of a com¬
petitor). In particular, though both Fourth Agreements provided for an initial
term of ten years and automatic renewal for additional five-year terms, renewal
in Claimant Agreement no. 4 (but not in Second Importer Agreement no. 4) was
subject to a proviso allowing either party to terminate the agreement at the end
of the initial or any five-year renewal term without any material breach or
reason (Clause 18.2).1 Further, Claimant Agreement no. 4 (but not Second
Importer Agreement no. 4) provided for a mid-term review meeting; if either
party did not accept the proposals made by the other party at that meeting in
respect of contractual performance, it could cancel Claimant Agreement no. 4
with effect seven months after the meeting.
Both Fourth Agreements provided for the application of the United Nations
Convention on Contracts for the International Sale of Goods (CISG). Matters
not addressed in the CISG were governed by Mexican law as applicable in
Mexico City. The Fourth Agreements also provided that disputes be referred
to ICC arbitration in Mexico City.
1. Clause 18.2 of Claimant Agreement no. 4 read:

"(a) the continuation of the term of this Agreement into any renewal term as provided in [Clause]
18.1 shall be entirely optional with each Party;
(b) either Party shall be entitled, without proof of good cause or other reference to the prior
performance of the other Party under this Agreement, to cause the term of this Agreement to
expire by delivering an Expiration Notice pursuant to [Clause] 18.1; and
(c) neither Party shall be liable to the other Party for damages of any kind on account of the
expiration of this Agreement pursuant to this [Clause] 18.”

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*
When Claimant contacted Respondents to make arrangements for the mid¬
term review meeting, it learned that Second Importer Agreement no. 4 did not
contain this requirement. The meeting was held in Mexico City; on that occasion
Claimant was informed of the other differences between the two agreements,
notably, of the existence of Clause 18.2 that allowed parties to terminate the
agreement without cause. Following the review meeting, though objecting to
the differences in the two agreements Claimant concentrated on obtaining a
positive mid-term report from Respondents. As Claimant’s sales performance
was undisputedly very good, two weeks after the meeting the parties signed an
acknowledgment that the requirement to have a meeting pursuant to Clause 18.1
of Claimant Agreement no. 4 was satisfied and no further meetings were needed.
A dispute arose between the parties when Respondents unilaterally terminat¬
ed Claimant Agreement no. 4 under Clause 18.2 shortly after the mid-term
review meeting. The agreement was to come to an end upon expiry of the initial
ten-year term, four years after the notice of termination was issued. Claimant
commenced ICC arbitration, claiming that Clause 18.2 was unenforceable under
the CISG and Mexican law because it had been obtained through bad faith, as
Respondents represented during the negotiations that the Fourth Agreements
were identical.
The three-member arbitral tribunal dismissed the claim. It first made the
following factual findings: (1) Claimant could not rightfully expect, on the
strength of the renewal and termination clauses in the First, Second and
Third Agreements being identical for Claimant and Second Importer, that
these clauses would also be identical in the Fourth Agreements. The negotiation
practice between the parties, though based on a common text, involved a final
period of confidential negotiations between Respondents and each importer that
could in principle address any contractual issue. There was thus no established
practice of offering the same terms as to termination and renewal to both
Claimant and Second Importer; (2) Claimant did believe at the time of signing
Claimant Agreement no. 4 that the renewal and termination provisions in both
agreements were identical, because Respondents encouraged this belief and
intentionally concealed the differences; (3) there was “a pattern of concealment”
in Respondents’ conduct towards Claimant in respect of Clause 18 that
amounted to a lack of good faith; (4) Claimant failed to commence a legal action
as soon as it heard of the extent of the differences between the two agreements
and chose instead to maintain its contractual relationship with Respondents.
The arbitral tribunal then examined the legal consequences of its findings of
fact, noting preliminarily that it was undisputed that the CISG applied to the
dispute and that it was supplemented by Mexican law in respect of issues not
covered in the CISG.

Claimant's first argument was that Respondents were bound to an established

practice (Art. 9(1) CISG) of offering common termination and renewal provi¬
sions. The arbitrators denied this argument, reasoning that it appeared from the
facts of the case, as seen above, that no such practice existed. They added that
Claimant’s submission was contradictory because it sought to bind the parties to
an alleged usage or practice that they expressly agreed to disregard by freely
accepting the terms of Clause 18 of Claimant Agreement no. 4. The arbitrators
noted that the purpose of Art. 9(1) CISG is to supplement the express terms of a
contract with the presumed common intention of the parties based on estab¬
lished usages and practices, not to contradict and overrule the common intention
of the parties as expressed in their contract.
Claimant’s second argument was that it was induced to enter into Claimant
Agreement no. 4 through bad faith, fraud, misrepresentation and concealment; it
relied to this purpose on Art. 7(1) CISG and Mexican law. The arbitrators
dismissed this argument as well. They reasoned at the outset that Art. 7
CISG imposes a general duty of contractual good faith but does not expressly
define its content and limits or provide any remedy for its breach, Questions
concerning matters not addressed in the CISG are to be settled, according to Art.
7(2) CISG, in conformity with the general principles on which the CISG is based
or, in the absence of such principles, in conformity with the applicable law. Since
Claimant did not identify any general principle within the CISG that would
entitle it to the relief sought on the grounds of breach of good faith in the
circumstances of this case, the arbitral tribunal applied Mexican law, being
the governing law chosen by the parties in respect of matters not covered by
the CISG.
Mexican law - noted the arbitrators - recognizes a substantive obligation of
contractual good faith. Here, the facts of the case showed that Respondents’
pattern of conduct amounted to a lack of good faith in their contractual dealings
with Claimant relating to Clause 18 of Claimant Agreement no. 4. This conduct
satisfied the definition of both misrepresentation (dolo) and bad faith under
Mexican law.
However, the legal consequence of misrepresentation or bad faith in Mexican
law depends upon their relevance to the formation of the contract. In the present
case, the misrepresentation and bad faith were not a determinative cause of the
contract: first, the deception occurred after the execution of the contract, at the
time of the mid-term review; second, it appeared that the parties did not nego¬
tiate specifically the termination and renewal provisions of the importer agree¬
ments. Claimant’s determinative cause for entering into Claimant Agreement
no. 4 lay in its commercial terms.
Nor did Respondents’ termination of Claimant Agreement no. 4 and its
general pattern of bad faith in its dealings with Claimant amount to an abuse

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of right: termination served a useful purpose - Respondents wished to terminate

the distribution arrangement with Claimant because it had lost faith in the
relationship - and was not given with the intention to cause damage. The arbi¬
trators particularly noted that a notice of over four years was given. Hence, two
of the criteria for an abuse of right under Mexican law were not met.
The arbitrators added that the conduct of the innocent party on learning of the
deception of the other party is also important in Mexican law. Here, Claimant’s
immediate response when learning of the deception regarding the terms of
Clause 18 of Claimant Agreement no. 4 on the day of the review meeting
was to seek to preserve the contractual relationship and secure the issuance of
a positive mid-term review report. Claimant did not commence a legal action
based on breach of good faith.
j
The arbitral tribunal therefore concluded that the misconduct and breaches of
good faith established by Claimant did not, in the circumstances of this case,
entitle Claimant to any of the relief sought under the CISG and/or Mexican law
for breach of good faith.
Since Clause 18.2 stated that “neither Party shall be liable to the other Party
for damages of any kind on account of the expiration of this Agreement pursuant
to this [Clause] 18”, the arbitral tribunal found that the parties expressly agreed
that a termination notice might be issued without good cause and without any
right to damages.
Excerpt
I. PLACE OF ARBITRATION AND APPLICABLE LAW
[1] “The place of the arbitration pursuant to Clause 21 of the Fourth

Agreements is Mexico City, Mexico.2
2. Clause 21 of the Fourth Agreements read:

"21. Arbitration.
Any dispute, controversy or claim arising out of or relating to this Agreement shall be finally
determined and settled by arbitration. Such arbitration shall take place in Mexico City, Mexico or
such other place as the parties may agree upon, pursuant to the Rules of Conciliation and Arbi¬
tration of the International Chamber of Commerce (hereinafter the ‘appointing authority’).
Except as otherwise provided in this [Clause] 21, the panel of arbitrators shall consist of three
persons whose decision shall be final and binding on the Parties. All arbitration proceedings shall
be conducted in the English language. The arbitrators shall be chosen as follows. Each party shall
select one arbitrator. If either party fails to select an arbitrator, the arbitrator selected by the one
party shall be the sole arbitrator. If each party has selected an arbitrator, then the two arbitrators
shall select a third. If the two arbitrators do not agree on the selection of a third within fifteen days

[2] “Clause 22 of the Fourth Agreements provides for the applicable law as
follows:
‘22. Governing Law

This Agreement shall be governed by and interpreted in accordance with
the United Nations Convention on Contracts for the International Sale of
Goods and, as to matters not addressed in that Convention, by and in
accordance with Mexican law applicable in Mexico City; provided that,
as to activities performed pursuant to the terms of this Agreement in a
jurisdiction other than Mexico City, the law governing such activities in
such other jurisdiction shall prevail to the extent such law conflicts with the
law applicable in Mexico City.’
[3] “The Arbitral Tribunal has also taken into account the provisions of the
Fourth Agreements and the relevant trade usages in accordance with Art. 17.2 of
the ICC Rules.”
II. ANALYSIS
[4] “The Arbitral Tribunal proposes to begin by addressing factual allegations

relating to the degree of similarity between Second Importer Agreement and
Claimant Agreement; alleged misrepresentations or non-disclosure by represen¬
tatives of Respondents relating to terms, termination and renewal; and the dis¬
covery and significance of the differences between the term, termination and
renewal provisions of these agreements.”
1. Findings of Fact
[5] “The United States market was divided into two territories allocated to
Second Importer and Claimant (the ‘two-importer strategy5). This strategy
envisaged both competitive rivalry between Claimant and Second Importer as
to their sales performance in their respective territories, but also close co-oper¬
ation in respect of the development of Manufacturer X’s products and such
matters as national advertising. To promote a positive working relationship
between Claimant and Second Importer and to minimize the sources and the
after having been requested to do so by either party or by the appointing authority, the third
arbitrator shall be selected by the appointing authority. Judgement upon the decision and any
award made by the arbitrators may be entered by any court having jurisdiction thereof.”

1
likelihood of conflicts, Manufacturer X decided that the agreements with
Second Importer and Claimant should be as similar as possible. It was important
to the two-importer strategy that the two importers were treated on an equal
basis, and that Manufacturer X and Respondents did not favour one importer
over the other.
[6] “The chairman of Claimant knows the contents of both Claimant
Agreement no. 1 and Second Importer Agreement no. 1 [the First
Agreements], and states that the provisions of both versions, except as to terri¬
tories and quotas, were ‘virtually identical5. The negotiation process for the
subsequent agreements began with the preparation of a common draft for
•r Second Importer and Claimant, which would form the basis of subsequent
negotiations. The final negotiations by Manufacturer X and Respondents
with each importer were separate, and one importer was not privy to the dis¬
cussions with the others. The executed Second, Third and Fourth Agreements
were confidential, and Claimant and Second Importer did not receive a copy of
the final agreement executed by the other importer.
[7] “The term, termination and renewal provisions of Claimant Agreement
no. 3 and Second Importer Agreement no. 3 were identical. Clause 18 of these
Third Agreements provided for a four-year term with an automatic renewal for
one year, subject to optional termination at the discretion of either party. Clause
18.2 of these agreements defined the right of optional termination, in exactly the
same terms as would subsequently appear in the Fourth Agreements. .. .
[8] “Between the negotiation of the Third Agreements and the Fourth
Agreements certain differences arose between Claimant and Manufacturer X
that negatively affected their relationship. [These concerned purchases of certain
factories and] a dispute over participation in a national advertising campaign that
resulted in an ICC arbitration commenced by First Respondent against
Claimant. The dispute resulted in an award in favour of Claimant, but displeased
senior members of Manufacturer X and caused them to doubt Claimant’s com¬
mitment to Manufacturer X.
[9] “Manufacturer X decided to renegotiate the importer agreements
notwithstanding being less than midway through their four-year terms. The
impetus for this early re-negotiation was that the acquisition by a company
of a substantial shareholding in Manufacturer X caused alarm amongst
Manufacturer X’s distributors in the United States. A common draft of a new
importer agreement was sent to Second Importer and Claimant, and Second
Imponer and Claimant representatives came to Mexico City for a final negoti¬
ating session. This session was conducted under conditions of urgency, and
resulted in the simultaneous signing of Claimant Agreement no. 4 and Second
Importer Agreement no. 4 in Mexico City.

[10] “The common draft initially submitted to Second Importer and Claimant
had identical term, termination and renewal provisions. During the negotiations
Manufacturer X and Respondents made changes to these provisions. The renew¬
al period was increased from one to five years. The term was extended to ten
years. A clause was inserted in the draft of Claimant Agreement no. 4 providing
for a mid-term review. The provision of a mid-term review was the first time
that there had been any difference between the term, termination and renewal
provisions offered by Respondents to Claimant and Second Importer.
[11] "The new term, termination and renewal provisions were proposed to
Claimant and Second Importer at the end of marathon separate negotiation
sessions in Mexico City. In the final negotiations with Second Importer
Respondents agreed to the deletion of the proviso allowing for the optional
termination of the agreement at the end of the term, with the consequent dele¬
tion of Clause 18.2 which defined the right of optional termination. In contrast,
Claimant accepted the draft of Clause 18.2 as proposed by Respondents.
[12] “The result was that there were three differences between Clause 18 of
Claimant Agreement no. 4 and Second Importer Agreement no. 4 . . . with
Second Importer enjoying commercially more favourable terms in that the
renewal of its agreement was not subject to termination without cause, and it
had no requirement of a mid-term review.
[13] “The Arbitral Tribunal accepts that Claimant believed at the time of
signing Claimant Agreement no. 4 that the term, termination and renewal pro¬
visions in its agreement were identical to those in Second Importer Agreement
no. 4. Respondents encouraged this belief. The then chairman of Second
Respondent represented to Claimant’s in-house counsel, in presenting the
final draft including the ten-year term and the mid-term review, that Second
Importer draft had the same clause. The representation was made before Second
Importer negotiated the deletion of the optional termination and Clause 18.2
from its agreement with First Respondent, but was nevertheless false as it sug¬
gested Second Importer was also subject to a mid-term review.
[14] “Respondents knew that at the time of the execution of the Fourth
Agreements that Claimant believed that the term, termination and renewal pro¬
visions of its agreement were the same as for Second Importer Agreement no. 4,
and did not disclose the differences. Manufacturer X and Respondents consid¬
ered that there were valid commercial reasons to discriminate between the treat¬
ment of Second Importer and Claimant as to term, termination and renewal, and
specifically the loss of confidence in Claimant arising from its purchase of other
factories and the ICC arbitration. Respondents had sufficient confidence in their
relationship with Second Importer to grant an automatic renewal and dispense
with a mid-term review, but no longer had full faith in Claimant.

[15] “Respondents intentionally concealed the differences as to terra, termi¬
nation and renewal to Claimant. Respondents - and individual executives for
personal motives - wished to conclude new importer agreements for ten-year
terms as quickly as possible, and knew disclosure of the differences in Clause 18
of the two agreements would have resulted in protests and delay on the part of
Claimant. Respondents also knew that disclosure of discriminatory treatment in
favour of Second Importer would damage the cooperation and competitive
rivalry between Second Importer and Claimant that was essential to the two-
importer strategy.
;
[16] “Nevertheless, the agreement between Claimant and First Respondent is
accurately recorded in the written text of Claimant Agreement no. 4. Claimant
intended to sign and make the agreement that it in fact negotiated with First
Respondent, and did not intend to agree to the terms negotiated by Second
Importer of which it was ignorant. The Arbitral Tribunal accordingly rejects
the submissions from Claimant that Claimant and First Respondent intended to
agree to include in their agreement the Clause 18 of Second Importer Agreement
no. 4, rather than the Clause 18 of Claimant Agreement no. 4 in fact executed by
them.
[17] “Claimant Agreement no. 4 was negotiated against the background of the
two-importer strategy and the practice of the simultaneous negotiation of
importer agreements by Second Importer and Claimant, beginning from a
common draft. There was an expectation that the two importers would be trea¬
ted by Respondents on a similar and competitive basis. This shared expectation
was essential to maintain the competitive rivalry and co-operation between
Claimant and Second Importer. However, the practice also involved a final
period of private negotiation between Respondents and each importer, and
during this period the competitive rivalry was directed towards securing the
most favourable possible terms from Respondents, knowing that any conces¬
sions achieved at this stage could remain confidential. While these private nego¬
tiations concentrated on commercial terms such as quotas, it was also the
opportunity for Respondents to address contractual issues affecting an
individual importer, and for the importers to negotiate individual advantages.
[18] “The Arbitral Tribunal accepts, as stated by Claimant’s chairman, that
Manufacturer X and Respondents had represented to Claimant’s chairman at
various times prior to the Fourth Agreements negotiations that the Claimant
and Second Importer agreements were materially the same. In respect of the
Third Agreements negotiations, for example, Second Respondent advised
Claimant of a late modification to Second Importer Agreement no. 3, conclud¬
ing that ‘with this modification, both agreements will be substantially the same;
except, of course, for the Territory and Quotas’. It is not proved that these
representations were false at the time they were made, or were intended to
Reprinted from the Yearbook Commercial Arbitration 627 \

induce Claimant to believe that in future Claimant and Second Importer agree¬
ments would remain materially or substantially the same.
[19] “The fact that a particular term of Second Importer and Claimant agree¬
ments was the same in the Second and Third Agreements did not create an
expectation or practice that the term would remain the same in the Fourth
Agreements. The negotiating practice of beginning from a common draft
ensured the agreements were substantially the same, but did not mean any
particular term would be the same. Claimant has not proved that there was
any understanding or expectation that any amendment to the term, termination
or renewal provisions (or other framework terms of the importer agreements)
agreed by Respondents with one importer would be advised to the other
importer.
[20] “Further, prior to the negotiations of the Fourth Agreements there had
never been any discussion between Claimant and Manufacturer X, First
Respondent or Second Respondent specifically addressing term, termination
or renewal.
[21] “Accordingly, the Arbitral Tribunal rejects the submission of Claimant
that there was an established practice of offering the same terms as to term,
termination and renewal to both Claimant and Second Importer.
[22] “During the negotiations of the Third Agreements Second Respondent
referred to the failure of Claimant and Second Importer to accept proposed
modifications to Clauses 12 and 13 of the agreements, saying each importer
complained that the proposed change favoured the other importer. Second
Respondent went on to state that 'this is not a pick-and-choose cafeteria type
of agreement between importers and First Respondent. The parameters are
established by First Respondent and it is Second Respondent’s responsibility
to arrive at a product which is the most reasonable and equitable to all parties
concerned.’
[23] “The two-importer strategy and the practice of negotiating from a
common draft created an incentive for all parties to emphasize the need for
uniformity in the agreements (as First Respondent did in this letter) when it
suited their interests, and to justify differences between the importers when this
course favoured their interests. For example, at a certain date after the conclu¬
sion of the Fourth Agreements Respondents wished to include in a letter an
amendment to the Fourth Agreements’ terms clarifying the importers’ obliga¬
tions regarding the advertising co-op fund and prohibiting the acquisition of
other additional products for distribution. Second Importer accepted these
terms in a lengthy clarification letter. Respondents argued that the need to
maintain equality between the importers required Claimant to accept the
same terms. Claimant however refused to accept the uniformity argument,

1
1
pointing to the fact that Second Importer was guilty of irregularities in its con-
tributions to the co-op fund, so that different terms were justified.
[24] “Further, the Parties had the benefit of experienced legal advice in nego¬
tiating the Fourth Agreements. Claimant had the opportunity to address direct¬
ly in negotiations its expectations regarding the identity of the term, termination
and renewal provisions in the two agreements and, if necessary, seek appropriate
security within the terms of the agreement. It did not do so. Further, it agreed in
Clause 23.6 (the ‘merger’ clause) that [Claimant] Agreement no. 4 ‘supersedes all
prior discussions, negotiations and agreements between the Parties concerning
the subject matter of this Agreement’.
[25] “The distribution relationship of Claimant with Manufacturer X was not
exclusive. Claimant had acquired certain factories and had entered into a dis¬
tribution agreement for another product. The acquisition of a factory at the same
time as Claimant’s refusal to accept the terms of the above-mentioned letter
agreement proposed by Respondents (and already agreed by Second
Importer) without modifications and deletions (including the agreement not
to acquire additional products for distribution) negatively affected the relation¬
ship between Claimant and Respondents and Manufacturer X. Manufacturer X
expressed concern and disappointment that the acquisition of other products
would negatively affect Claimant’s ability to promote Manufacturer X pro¬
ducts. The relationship between Claimant and Respondents continued to erode.
[26] “Prior to the mid-term review, Claimant wrote to Second Respondent (with
a copy to Second Importer) suggesting that the mid-term review required by
Clause 18.1 of the Agreements no. 4 take place on a certain date. Claimant was
then told that Second Importer Agreement no. 4 did not require a mid-term review.
Claimant alleges that it specifically asked representatives of Respondents if there
were any other differences between Claimant Agreement no. 4 and Second
Importer Agreement no. 4, and was told that the mid-term review was the only
difference and this had been added to Claimant Agreement no. 4 as a result of the
ICC arbitration between First Respondent and Claimant.
[27] “The recollections of Respondents’ witnesses regarding these conversa¬
tions are not satisfactory. Accordingly, the Arbitral Tribunal concludes that at
the relevant date Respondents represented to Claimant that Clause 18 of
Claimant Agreement no. 4 was the same, except for the mid-term review, as
Clause 18 of Second Importer Agreement no. 4 and that this representation was
false.
[28] “Claimant raised its concerns in writing with Manufacturer X in a letter
of around that time, which stated in part:
T would like to take this opportunity to reiterate my statements during our

[recent] meeting of some serious concerns we have relating to [Clause] 18.1

of the Importer Agreement. Upon receipt of your letter, we were advised

by Second Respondent and Manufacturer X that Second Importer did not
have this provision in their agreement. We were very surprised and
extremely disappointed to learn this. During the long term of our partner¬
ship, Manufacturer X, First Respondent and Second Respondent represen¬
tatives have stated to me and other members of Claimant’s management -
on numerous occasions - that the terms of the agreements of both importers
were identical in all respects. We have always relied on these statements. It
was very disturbing to discover that this reliance was misplaced and that we
were singled out for unequal treatment.’
[29] “Representatives of Claimant and Respondents subsequently met in

Mexico City for the mid-term review meeting. Claimant was clearly concerned
at this time that Claimant Agreement no. 4 might be terminated on the basis that
Respondents were not satisfied with the mid-term review, in accordance with
Clause 18.1 of Claimant Agreement no. 4, and pressured Respondents to clarify
their true intentions. Two weeks later First Respondent signed and sent to
Claimant an acknowledgment (prepared and already signed by Claimant) that
the requirement to have a meeting pursuant to Clause 18.1 of Claimant
Agreement no. 4 ‘has been satisfied.in full and no further meetings or discussions
will be necessary or required’. In a covering letter the Chief Executive Officer of
Manufacturer X stated to Claimant’s chairman: 'Como te comenté en nuestra
reunión del ... la controversia surgida respecto a la reunión a que se refiere la
Sección 18.1 nunca obedeció en forma alguna a un deseo de dar per terminado el
Contrato de Importación, sino el deseo de buscar con ustedes caminos tendientes a
mejorar los márgenes de exportación.’3 In fact, Manufacturer X and Respondents
had considered termination of Claimant Agreement no. 4 at this time, but decid¬
ed not to do so.
[30] “On the day of the review meeting Claimant obtained a copy of Second
Importer Agreement no. 4. As from this date, Claimant knew of all of the
differences between Clause 18 of Claimant Agreement no. 4 and Clause 18 of
Second Importer Agreement no. 4. Accordingly, Claimant could have com¬
menced legal action at this time based on the allegations now raised of the
expectation of identity of the term, termination and renewal provisions of
Claimant Agreement no. 4 and Second Importer Agreement no. 4, bad faith,
misrepresentation and fraudulent alteration of the true agreement. Claimant
3. “English translation: 'As I mentioned to you in our meeting on . . . the controversy arising from
the meeting referred to by [Clause] 18.1 was never caused in any way by a desire to terminate the
Import Contract, but the desire to look with all of you for paths tending to improve export
margins.’”

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decided to adopt a prudent course, refraining from legal action so as not to
further damage a mutually highly profitable relationship with Respondents.
Instead, Claimant sought to establish the principle of equal treatment with
Second Importer in relation to Clause 18 (by seeking an acknowledgment
from Respondents of the true terms of Clause 18 of Second Importer
Agreement no. 4, and a consequent modification of Clause 18 of Claimant
Agreement no. 4 to make its provisions the same), with the consequent
automatic renewal that would protect its investment in the importation and
distribution of Manufacturer X’s products. Claimant continued its excellent
contractual performance, and a month later agreed to profit margin concessions
in favour of Respondents and Manufacturer X.
[31] “However, from this point the relationship between Claimant on the one
hand, and Manufacturer X and Respondents on the other, was characterized by
mutual distrust. Claimant’s communications to Respondents concealed its pos¬
session of Second Importer Agreement no. 4. Respondents did not acknowledge
the other differences in Clause 18 of Second Importer Agreement no. 4 until six
months later, and prepared for the termination of Claimant Agreement no. 4.
Around that time Respondents discussed internally the possibility of buying
Claimant’s rights under Claimant Agreement no. 4, and made their first offer to
purchase to Claimant’s chairman. In this and subsequent negotiations
Claimant’s chairman refused to sell Claimant, and insisted on Claimant’s rights
to term, termination and renewal provisions on the same basis as Second
Importer.
[32] “By a letter dated one year later, First Respondent gave Claimant notice
of termination of Claimant Agreement no. 4 in the following terms:
‘Pursuant to Clause 18.1 of Claimant Agreement no. 4, between you (i.e.,

Claimant) and the undersigned (i.e., First Respondent) (the Agreement),
you are hereby notified that the Agreement will expire at the end of its
initial term at [a certain date], unless terminated earlier by either party in
accordance with [Clause] 19 of the Agreement. This letter constitutes the
Expiration Notice (as defined in the Agreement).”
[33] “Respondents decided to terminate Claimant Agreement no. 4,

notwithstanding the very good sales performance of Claimant. The Chief
Executive Officer of Manufacturer X stated in oral testimony: ‘The point
here is not if they (i.e., Claimant) are doing a good job or not. The point is
whether we want to continue the relationship. . . . Basically the termination
notice is not because of performance.’ The Arbitral Tribunal has had
ample evidence that Claimant successfully performed its contractual obligations
at all times.

[34] “There is a pattern of concealment and strict insistence on their own

contractual rights in Respondents’ and Manufacturer X’s conduct towards
Claimant in respect of Clause 18 of Claimant Agreement no. 4. Respondents
concealed by misrepresentation when Claimant Agreement no. 4 was negotiated
the fact that Second Importer was not subject to a mid-term review, and when
Claimant leamt of this difference almost five years later Respondents and
Manufacturer X concealed the other differences in Clause 18 of Second
Importer Agreement no. 4. They subsequently concealed their intention to
terminate Claimant Agreement no. 4. They insisted that Claimant was bound
by the terms of Clause 18 it actually signed, insisted on the Clause 18.1 mid-term
review on the contractually mandated date, and in accordance with Clause 18.1
terminated the distribution relationship without cause. They took advantage of
the two-importer strategy and Claimant’s successful performance for as long as
it was convenient, and then terminated the distribution relationship after having
initiated negotiations to purchase Claimant from Claimant’s chairman.
[35] “Claimant’s conduct was not blameless, and at times Claimant’s chairman
was both aggressive and devious. Nevertheless, the Arbitral Tribunal concludes
that there was a lack of good faith in Respondents’ contractual relations with
Claimant in respect of Clause 18 of the Importer Agreement.”
2. Legal Consequences
[36] "The Arbitral Tribunal now turns to the legal consequences of its findings
of fact. The first issue is the applicability of the UN Convention [the CISG] to
this dispute. The Parties have resolved any doubt as to whether the CISG gov¬
erns the framework agreement by the express choice set out in Clause 22 of the
Fourth Agreements. The CISG does not apply exclusively to the Fourth
Agreements, but is supplemented ‘as to matters not addressed in that
Convention’ by Mexican law applicable in Mexico City.
[37] “There has been disagreement between the Parties as to the relative appli¬
cation of the CISG and Mexican law as to the specific matters at issue in the
arbitration, with Claimant, in general terms, attributing a greater relative impor¬
tance to the CISG, and Respondents stating that the matters in issue are outside
the CISG and subject to Mexican law. Claimant has also argued that should the
Tribunal find that the CISG does not apply, the result is the same under Mexican
law.
[38] “The Arbitral Tribunal has also considered the United Nations
Convention on the Limitation Period in the International Sale of Goods (as
amended by the Protocol Amending the Convention on the Limitation
Period in the International Sale of Goods), to which both Mexico and the
United States are parties.

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[39] “Claimant states that the First, Second and Third Agreements were iden¬
tical as to term, termination and renewal for Claimant and Second Importer, and
that this established a practice between the Parties. Respondents deviated from
this practice in respect of the Fourth Agreements by deleting the Respondent's
express termination option as to the Second Importer agreement, but withouc
doing the same for Claimant’s version. Claimant submits that pursuant to Art.
9(1) CISG4 Respondents are bound by the practice of offering common term,
termination and renewal provisions, and also argue that this established practice
is a binding usage in terms of Art. 1445 of the Mexican Code of Commerce and
Art. 17.2 of the ICC Rules.
Î5 [40] “The Arbitral Tribunal rejects this submission for two reasons. First, as
explained . . . above, there was a common negotiating practice of common drafts
followed by private negotiation with each importer (which was in fact followed
in the Fourth Agreements’ negotiations), but not any practice as to the identity
of the provisions relating to term, termination and renewal, nor any expectation
that each importer would be advised of the amendments to the framework terms
(such as Clause 18) agreed with the other importer during the confidential phase
of negotiations.
[41] “The fact that the provisions as to term, termination and renewal in the
First, Second and Third Agreements were in fact identical for Claimant and
Second Importer does not create a ‘practice’ to that effect within the meaning
of Art. 9(1) CISG, where Claimant had not seen and did not know the term,
termination and renewal provisions of Second Importer Agreements no. 2 and
no. 3, and had never discussed term, termination and renewal with Respondents
prior to the negotiations of the Fourth Agreements. Likewise, there was no
‘usage’ that term, termination and renewal would be identical within the mean¬
ing of Art. 9(1) CISG, Art. 1445 of the Mexican Code of Commerce or Art. 17.2
of the ICC Rules.
[42] “Secondly, Claimant’s submission is contradictory because it seeks to
bind the Parties to an alleged usage or practice that they expressly agree to
disregard. Claimant freely accepted the terms of Clause 18 of Claimant
4. Art. 9 of the United Nations Convention on Contracts for the International Sale of Goods, done
at Vienna on 11 April 1980 (CISG) reads:
"(1) The parties are bound by any usage to which they have agreed and by any practices which
they have established between themselves.
(2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their
contract or its formation a usage of which the parties knew or ought to have known and which in
international trade is widely known to, and regularly observed by, parties to contracts of the type
involved in the particular trade concerned.”

Agreement no. 4 that it now alleges are a departure from the established practice
of the Parties. The purpose of Art. 9(1) CISG is to supplement the express terms
of the contract with the presumed common intention of the parties based on
established usages and practices, but not to contradict and overrule the common
intention of the parties as expressed in the contract.
[43] “Claimant alleges bad faith and fraudulent alterations to the true agree¬
ment, and states that it was induced to enter into Claimant Agreement no. 4, to
grant monetary concessions to Respondents, and to make substantial invest¬
ments through bad faith, fraud, misrepresentation and concealment. Claimant
relies on the CISG (particularly Art. 7(1)5 and Art. 29(2),6 to overcome
Respondents’ reliance on the merger clause), and on certain provisions of
Mexican law (particularly Art. 1796 of the Federal Civil Code, relating to
good faith, and Art. 2238 relating to partial nullity). Claimant also submitted
that on various grounds under the CISG, Mexican law, and applicable
procedural rules the Arbitral Tribunal had the power to grant the relief sought
in the Request for Arbitration, including conforming the term, termination and
renewal provisions of Claimant Agreement no. 4 to be the same as Second
Importer Agreement no. 4. Claimant in particular referred to the ‘pro forma’
action under Art. 2232 of the Federal Civil Code.
[44] “Respondents deny any bad faith, fraud, misrepresentation and conceal¬
ment, and further deny any intention to deceive, reliance or damages. They
submit that these issues relate to validity of Claimant Agreement no. 4 and

"(1) In the interpretation of this Convention, regard is to be had to its international character and
to the need to promote uniformity in its application and the observance of good faith in
international trade.
(2) Questions concerning matters governed by this Convention which are not expressly settled in
it are to be settled in conformity with the general principles on which it is based or, in the absence
of such principles, in conformity with the law applicable by virtue of the rules of private
international law.”
“(1) A contract may be modified or terminated by the mere agreement of the parties.
(2) A contract in writing which contains a provision requiring any modification or termination by
agreement co be in writing may not be otherwise modified or terminated by agreement. However,
a party may be precluded by his conduct from asserting such a provision to the extent that the
other party has relied on that conduct.”

553
are thereforè excluded from the CISG by the terms of its own Art. 4(a)7 and are
governed entirely by Mexican law. They state that if Claimant believed that the
terms of Claimant Agreement no. 4 and Second Importer Agreement no. 4 were
identical as to term, termination and renewal then this was conceptually a
mistake under Mexican law, which pursuant to Art. 1813 of the Federal Civil
Code would only invalidate a contract where the mistake relates to Claimant’s
determinative purpose for entering into the contract as proved by its declara¬
tions at the time of execution or the circumstances of the execution.
Respondents state that the identity as to term, termination and renewal were
not Claimant’s determinative purpose in entering into [Claimant] Agreement
J
no. 4, and in any event an action for nullity for mistake is prescribed pursuant to
Art. 2236 of the Federal Civil Code because the prescription period for this
action is sixty days from the date the mistake was known.
[45] “There are different doctrinal views over whether Art. 7 CISG creates a
substantive obligation of good faith, that would be applicable to Claimant’s allega¬
tions in this arbitration, or merely establishes a rule of interpretation. There is clearly
a substantive duty of contractual good faith in Mexican law, also relied upon by
Claimant, introduced in Art. 1796 of the Federal Civil Code which reads as follows:8
'Art. 1796. Los contratos se perfeccionanpor el mero consentimiento, excepto

aquellos que deben revestir una forma establecida por la ley. Desde que se
perfeccionan, obligan a los contratantes no sólo al cumplimiento de lo expre¬
samente pactado, sino también a las consecuencias que, según su naturaleza,
son conforme a la buena fe, al uso o ala ley.’
[46] “Apart from good faith, the arguments raised by the Parties relating to the
validity and performance of Claimant Agreement no. 4 are matters ‘not
addressed’ in the CISG, and therefore are governed by Mexican law pursuant
to the express terms of Clause 22 of Claimant Agreement no. 4.

"This Convention governs only the formation of the contract of sale and the rights and obliga¬
tions of the seller and the buyer arising from such a contract. In particular, except as otherwise
expressly provided in this Convention, it is not concerned with:
(a) the validity of the contract or of any of its provisions or of any usage;
(b) the effect which the contract may have on the property in the goods sold.”
8. "English translation: ‘Contracts are concluded by mere consent, except those that require a form
established by law. From compledon, contracts oblige from the contracting parties not only the
performance of what has been expressly agreed, but also the consequences that, according to their
nature, conform with good faith, custom, and the law.’”

[47] “If, as Respondents argued, Claimant was acting under a unilateral

mistake in entering into Claimant Agreement no. 4 in the belief that the term,
termination and renewal provisions were identical to those in Second Importer
Agreement no. 4, then Claimant is not entitled to any relief under Mexican law
in respect of this mistake.
[48] “However, in addition to any mistake there were various misrepresenta¬
tions and concealments by the Respondent at the time of the final negotiations of
Claimant Agreement no. 4, at the time of the mid-term review, and in respect of
the termination of Claimant Agreement no. 4.
[49] “The Arbitral Tribunal has already concluded that Respondents’ pattern
of conduct cumulatively amounts to a lack of good faith in their contractual
dealings with Claimant relating to Clause 18 of Claimant Agreement no. 4. It
also finds that this conduct of Respondents satisfies the definition of both mis¬
representation {dolo) and bad faith in Art. 1815 of the Federal Civil Code, which
reads as follows:9
‘Art. 1815. Se entiende por dolo en los contratos cualquiera sugestión o

artificio que se emplee para inducir a error o mantener en él alguno de los
contratantes; y por mala fe la disimulación del error de uno de los contra¬
tantes, una vez conoádo.’
[50] “The legal effect of misrepresentation or bad faith in the Federal Civil
Code depends upon its importance to the formation of the contract. Art. 1816
provides as follows:10
‘Art. 1816. El dolo o malafe de una de las partes y el dolo que proviene de un
tercero, sabiéndolo aquélla, anulan el contrato si ha sido la causa determi¬
nante de este acto juridico.’
[51] "In terms of Art. 1816 the misrepresentation and bad faith established
in this case have not been a determinative cause of the contract within the
meaning of Art. 1816 for two reasons. Firstly, the deception at the time of
the mid-term review and in relation to the termination notice occurred after
the execution of the contract and so cannot be considered a determinative cause
9 . "English translation: 'Contractual misrepresentation means any suggestion or artifice chat is

employed in order to induce or maintain in error one of the contracting parties; and bad faith
means the concealment of the error of one of the contracting parties, once known.’”
10. “English translation: ‘The misrepresentation or bad faith of one of the parties and the misrep¬
resentation of a third party known to one of the contracting parties annul the contract if it has
been the determinative cause of the contract.’”
636 Reprinted from [he Yearbook Commercial Arbitration

1
'1
!
of the contract. Secondly, the Parties had never negotiated the term, termination
and renewal provisions of the importer agreements, notwithstanding the mar-
athon negotiations that accompanied the conclusion of the importer agreements.
The determinative cause of Claimant Agreement no. 4 lay in its commercial
terms, and Respondents’ deception relating to Clause 18 was of lesser signifi¬
cance. Respondents’ deception facilitated the rapid and harmonious execution of
an agreement where the determinative causes lay in its other provisions.
[52] “The conduct of the innocent party on learning of the deception of the
other party is also important in the Federal Civil Code. Art. 1823 provides:11
Í: ‘Art. 1823. Si habiendo cesado la violencia o siendo conocido el dolo el que
sufrió la violencia o padeció el engaño ratifica el contrato, no puede en lo
sucesivo reclamar por semejantes vicios.’
[53] “In this case Claimant learnt of the deception regarding the terms of
Clause 18 of Claimant Agreement no. 4 on the day of the review meeting.
Claimant’s immediate response was to seek to preserve the contractual relation¬
ship. This course included signing the agreement with First Respondent con¬
firming that the mid-term review requirement of Clause 18.1 had been satisfied
in full. This agreement was an affirmation by both Parties of their commitment
to Claimant Agreement no. 4, and in seeking and obtaining this agreement - in
relation to the very clause affected by misrepresentation - Claimant ratified
Claimant Agreement no. 4 within the meaning of Art. 1823, and so has no
claim for misrepresentation occurring prior to this date.
[54] “As a result of this ratification, the Tribunal concludes that the Limitation
Convention is not relevant.
[55] “There remains the question of the general pattern of bad faith by
Respondents, and also the concealment relating to the termination notice.
The Arbitral Tribunal has considered whether Respondents’ conduct in termi¬
nating Claimant Agreement no. 4 amounts to an abuse of rights in terms of Art.
1912 of the Federal Civil Code, which reads as follows:12
‘Art. 1912. Cuando al ejercitar un derecho se cause daño a otro, hay obliga¬
ción de indemnizarlo si se demuestra que el derecho sólo se ejercitó a fin de
causar el daño, sin utilidad para el titular del derecho.’
11. "English translation: 'Where, having ceased the duress or being known the misrepresentation, the
party that suffered the duress or deception ratifies the contract, then that party cannot subse¬
quently claim for these breaches.’"
12. “English translation: ‘When the exercise of a right causes damage to another, there is an obli¬
gation to indemnify that person where it is shown that the right was only exercised in order to
cause damage, without any useful purpose for the owner of the right.’”

[56] “Mexican jurisprudence establishes that abuse of right is composed of

both subjective and objective elements, as follows: (i) the exercise of a right;
(ii) the absence of any useful purpose to the exercise of the right; (iii) the inten¬
tion to cause damage; and (iv) actual damage. In the present case, the second and
third elements are not satisfied in respect of the termination of Claimant
Agreement no. 4. Respondents wished to terminate the distribution arrange¬
ment with Claimant because of the problems with this relationship. They gave
Claimant over four years’ notice, so that the termination of the relationship
could be smooth and well prepared, and were motivated by commercial con¬
siderations (the need to put an end to their relationship problems with Claimant)
and not the desire to hurt Claimant.
[57] “Claimant argued that the Arbitral Tribunal derived a power from Art.
2232 to conform Claimant Agreement no. 4 to the terms of Second Importer
Agreement no. 4. Art. 2232 relates to the ‘pro forma’ action and applies when a
lack of form causes the nullity of the agreement ('cuando la falta de forma
produzca nulidad del acto’). Claimant argued that an oral agreement existed
prior to the execution of the written Claimant Agreement no. 4, but the oral
agreement in respect of term, termination and renewal was fraudulently altered
when the agreement was recorded in its written form. This fraudulent alteration
meant that Clause 18 of Claimant Agreement no. 4 was a nullity (on the basis of
Art. 2238 of the Federal Civil Code, in that the nullity affected only a separable
part of Claimant Agreement no. 4, so that the remainder of the agreement was
valid), and pursuant to Art. 2232 the Arbitral Tribunal could give written form
to the oral agreement.
[58] “The Arbitral Tribunal rejects this submission for two reasons. Firstly,
there was no oral agreement prior to the execution of Claimant Agreement no. 4.
As already stated, the agreement Claimant intended to make and sign is accu¬
rately recorded in the written text of Claimant Agreement no. 4. Secondly, there
is no nullity of Clause 18 for lack of form because Mexican law, as submitted by
Respondents and confirmed by Art. 1796 of the Federal Civil Code and Arts. 78
and 79 of the Code of Commerce, does not require any formalities for a
commercial contract such as Claimant Agreement no. 4.
[59] “The Arbitral Tribunal accepts that the CISG imposes a general duty of
good faith independent of Mexican law. However, the CISG does not expressly
settle the content or limit of this duty of good faith, or provide any remedy for its
breach. Accordingly, these matters must be addressed in accordance with Art.
7(2) CISG, which provides as follows:
Art. 7

á

(2) Questions concerning matters governed by this Convention which are
not expressly settled in it are to be settled in conformity with the general
principles on which it is based or, in the absence of such principles, in
conformity with the law applicable by virtue of the rules of private
international law.’
[60] “Claimant has not identified any general principles within the CISG that
would entitle it to the relief sought on the grounds of breach of good faith in the
circumstances of this arbitration. In the absence of such principles, the Arbitral
Tribunal must have regard to Mexican law as the governing law chosen by the
Parties in respect of matters not covered by the CISG.
[61] “The misconduct and breaches of good faith established by Claimant in
respect of the execution and performance of Claimant Agreement no. 4 do not, in
the circumstances of this case, entitle Claimant to any of the relief sought in the
Request for Arbitration or Statement of Claim under the CISG and/or Mexican
law. Respondents’ wrongdoing when Claimant Agreement no. 4 was negotiated
was incidental and not a determinative cause of the execution of Claimant
Agreement no. 4. The written text of Claimant Agreement no. 4 accurately
recorded the agreement in fact reached by Claimant and First Respondent, and
Claimant ratified the agreement two weeks after the review meeting with full
knowledge of the prior misconduct and bad faith of Claimant. Finally, in termi¬
nating the agreement First Respondent was exercising a right agreed by the Parties
in executing Claimant Agreement no. 4 and Claimant is obliged to respect the
express agreement that either party might cause Claimant Agreement no. 4 to
expire ‘without good cause’ at the expiration of the ten-year term. Clause 18.2
states that ‘neither Party shall be liable to the other Party for damages of any kind
on account of the expiration of this Agreement pursuant to this [Clause] 18’. The
express agreement of the Parties that an Expiration Notice might be issued without
good cause, and without any right to damages, excludes any possible claim for
damages arising from the concealment of Respondents’ intentions and lack of good
faith in respect of the termination of the distributorship arrangement.
[62] “The Arbitral Tribunal must balance the application of good faith in
respect of the mid-term review and the notice of termination, with the express
terms of Claimant Agreement no. 4. This is clear from Art. 1796 where the first
obligation of the parties is to comply ‘with what is expressly agreed’ and also the
requirements of good faith. In the present case, the parties expressly agreed to a
mid-term review, no automatic renewal, and a right of termination without
cause, and the breaches of good faith do not affect the Parties’ primary obliga¬
tion to comply with the express terms of Clause 18.
[63] “Accordingly, Claimant has not established a right to any of the relief
sought in the Request for Arbitration.”

III. COSTS
[64] “Art. 31.3 of the ICC Rules provides that the final Award ‘shall fix the
costs of the arbitration and decide which of the parties shall bear them or in what
proportion they shall be borne by the parties’.
[65] “The Arbitral Tribunal has considered all the circumstances of this arbi¬
tration in reaching a decision in respect of costs, and particularly the following:
(i) Respondents have succeeded in the arbitration, and Clause 18 of Claimant
Agreement no. 4 has been upheld; (ii) Claimant has demonstrated Respondents’
misconduct and bad faith in the execution and performance of Claimant
Agreement no. 4; and (iii) the Parties have each cooperated in the arbitration
process to ensure the dispute was resolved as expeditiously as possible.
[66] “In these circumstances, the Arbitral Tribunal finds that Claimant on one
hand, and Respondents on the other, shall each bear one half of the fees and
expenses of the arbitration, including the fees and expenses of the arbitrators and
the ICC administrative expenses. Each party shall remain responsible for its
own legal costs.”

Parties: Claimant: Seller (British Virgin Islands)

Respondent: Buyer (Bahamas)
Place of London, UK
arbitration:
Subject matters: - interpretation of contract

- non-conformity of goods
- breach of contract
- loss of profit
Summary
A clause in the contract required buyer’s approval of the vessels to be used for
transporting the cargo at issue. Buyer withheld approval arguing, inter alia,
that it had reason to believe that the cargo did not comply with contractual
specifications. The sole arbitrator held that the power to withhold approval
was to be exercised reasonably and that buyer could not rely on conjectures
as to the cargo’s quality. However, buyer’s breach did not cause loss of profit
to seller as seller was able to sell the goods to a substitute buyer.
In September of Year X, the British Virgin Islands Seller and the Bahamian
Buyer entered into a contract whereby Seller agreed to procure a quantity of
certain goods and sell them to Buyer. Delivery was to take place at Rotterdam
port. The contract provided for a first shipment in October and a second ship¬
ment on a date to be notified to Seller by Buyer. Under Clause 6 of the contract,
shipment was conditioned upon Buyer’s approval of the vessels (“Shipments:
Max 25 years of age vessels to be utilized. Seller has to receive Buyer’s approval
for the vessels.”). The contract further provided for ICC arbitration in London.
Seller nominated six vessels, but none was approved by Buyer (with the excep¬
tion of a vessel that was approved when loading was no longer feasible for timely
delivery). No actual shipment took place under the contract.
Seller commenced ICC arbitration, seeking damages for Buyer’s breach of
contract in withholding approval of the vessels. Buyer argued that it was

i
'1
justified in withholding approval because the vessels were nominated on a

substitute basis and/or could not deliver the goods timely, and further because
the goods to be carried on board the vessels did not comply with contractual
specifications (were not “fresh”) and would therefore be rejected by Buyer upon
arrival.
A sole arbitrator was appointed; the parties agreed on the application of
English law to the merits of the dispute.
The sole arbitrator held that Buyer’s refusal to approve the vessels was a
breach of contract, but that Seller had suffered no damages as a consequence
as it sold the same goods to a substitute buyer.
The arbitrators first examined the scope of Clause 6 of the contract, which
concerned Buyer’s approval of the vessels. Buyer claimed that the second
sentence of Clause 6 (Buyer’s approval) was not conditioned upon the first
sentence (the age of the vessels) and that Buyer could withhold approval on
grounds other than technical reasons such as the age of the vessels. Seller argued
on the contrary that Buyer could withhold approval only on technical grounds
and should give reasons for its refusal.
The sole arbitrator reasoned that it was thus common ground between the
parties that Buyer had a power of (non-)approval under Clause 6 but that this
power was not absolute and unconditional. He held - in application of the rule
that a contract must be interpreted so as to give each clause effect and purpose -
that the first sentence of Clause 6 did not expressly limit the second sentence.
However, the first sentence did imply that the power conferred by the second
sentence should be exercised reasonably: the age of the vessel was an example of
a reasonable (technical) basis for refusing approval. Here, Buyer did not point to
any technical reason to refuse its approval. Hence, in the absence of technical or
age reasons the burden of proof shifted upon Buyer to establish that it did
exercise its power under Clause 6 reasonably.
Buyer sought to meet this burden by arguing that it was allowed under Clause
6, inter alia, to refuse vessels “programmed to load cargo which does not con-
form to the contract (alternatively cargo which Buyer reasonably believes not to
conform to the contract)”. The sole arbitrator disagreed. He held that the right
of non-approval was independent of the contractual provisions concerning the
quality of the goods and that in the absence of any specific wording to this effect
in the contract, there was no reason to link the contractual conformity of the
goods to the approval of the vessel(s). Further, there was no question of actual
non-conformity here but merely of Buyer’s “reasonable belief” that the goods
did not comply with contractual specifications.
Notwithstanding his finding that the alleged non-conformity of the goods
could have no impact on Buyer’s non-approval of the vessels, the sole arbitrator
dealt with this issue because a large part of the parties’ pleadings and witness

:rrar '-'i
_ _n a:a55ssgr>5:-: r
evidence was devoted thereto. He concluded that it was impossible to determine

the quality of the goods, because none were ever shipped. Thus, this defense
would require “an impermissible reliance upon inferences”.
The sole arbitrator then examined whether Seller experienced a loss of profit
as a consequence of Buyer’s breach of contract. The arbitrator reasoned that if it
is established that the goods earmarked for the contract are sold to another buyer
as a substitute buyer, loss of profits is an inappropriate basis to calculate any
damages because there was in fact no loss. Here, it appeared from the evidence
that the goods were sold to another buyer and that that buyer was a substitute
buyer because Seller would “in all probability” have been unable to supply both
orders from the goods available to it. Thus, Seller did not establish the existence
of a loss of profit flowing from Buyer’s breach of contract.
The sole arbitrator added that it might be possible to use the market-price
method to ascertain the quantum of damages. However, Seller did not supply
any evidence of the eventual sale of the goods so that it was impossible to
ascertain the existence of damages, if any.
Excerpt
I. JURISDICTION
[1] “Buyer had indicated early on in the proceedings that it challenged the Sole
Arbitrator’s jurisdiction to consider the dispute raised by Seller in its Request.
However, by letter . . . Buyer’s counsel informed the Sole Arbitrator and Seller
that Buyer ‘wishes to withdraw its case on jurisdiction and time-bar. Specifically
the case set out in paragraphs 1 to 17 of our First Memorial on Jurisdiction is
withdrawn, and we confirm our client’s acceptance that the Tribunal has
jurisdiction.’
[2] “The challenge to the jurisdiction of the Sole Arbitrator having been aban¬
doned, there is no decision to be made on the existence, validity, or scope of the
arbitration agreement. The Sole Arbitrator has jurisdiction to consider the
parties’ claims and defences.”
II. APPLICABLE LAW
[3] “The parties have agreed that the law to be applied by the Sole Arbitrator
to the merits of this dispute is English law, which is the law the Sole Arbitrator
will apply in accordance with Art. 17.1 of the Rules. By virtue of Art. 17.2 of the
Rules, the Sole Arbitrator shall also take into account ‘the provisions of the
Reprinted from tbe Yearbook Commercial Arbitration 643

■í
contract and the relevant trade usages’. There is no agreement within the mean¬
ing of Art. 17.3 of the Rules.”1
III. POINTS OF AGREEMENT AND DISAGREEMENT
[4] “The parties are agreed on the following facts and issues:
(1) First, they agree that in September of Year X, they entered into an agreement
for the purchase of a quantity of the goods ... CFR Rotterdam. By the
contract, the contracted goods were to be delivered at Rotterdam in week
42 (i.e., in October) followed by a second shipment on a date to be notified
by Buyer. The actual shipment of the goods was conditioned by a contrac¬
tual term which obliged Seller to receive Buyer’s approval for the marine
vessels which would be used for transport. The parties disagree, however, on
some of the other terms of this contract, specifically, whether there was a
term that required that the contracted goods be of a certain quality and the
extent to which Buyer’s right of (non-)approval of vessels is conditional.
(2) Second, rhey agree that Seller nominated to Buyer at least six marine ves¬
sels to transport the goods. . . . With one exception, Buyer did not give its
approval for these vessels. (The exception was vessel M but by the time of
nomination/approval it appears that it was not feasible to load the vessel
with the goods for timely delivery.) The parties dispute, however, whether
Buyer’s exercise of its contractual right of approval (or non-approval)
amounts to a breach of the contract.
(3) Third, the parties agree that no goods were delivered and that no monies
passed between them.
[5] "The points of disagreement are numerous:
(1) Buyer states that the goods Seller was going to supply to it were not of new
-
production not ‘fresh’ - which Buyer would have rejected. Seller denies
that the goods to be supplied did not conform to the contract specification.
1. Art. 17 of the ICC Rules reads:

“1. The parties shall be free to agree upon the rules of law to be applied by the Arbitral Tribunal to
the merits of the dispute. In the absence of any such agreement, the Arbitral Tribunal shall apply
the rules of law which it determines to be appropriate.
2. In all cases the Arbitral Tribunal shall take account of the provisions of the contract and the
relevant trade usages.
3. The Arbitral Tribunal shall assume the powers of an amiable compositeur or decide ex aequo et
bono only if the parties have agreed to give it such powers.”

. i-;;
(2) Buyer takes the position that Seller’s nomination of the vessels was wrong¬
ful and opportunistic, while Seller states that it acted with substantial good
faith which, it states, was lacking in Buyer’s behaviour.
(3) The parties also disagree on the inferences that should be drawn by the Sole
Arbitrator from the lack of evidence and statements made about the events
which occurred at the relevant time.
(4) Finally, they dispute losses, if any, arising out of Buyer’s withholding of
approval.
[6] “In summary, the parties are agreed that there was a contract between them
ft
for the sale of goods which were to be delivered to Rotterdam by Seller on a
marine vessel which had Buyer’s approval.
[7] “Seller argues that Buyer’s withholding of approval constitutes a breach of
ft
the contract. Buyer has not denied that it withheld approval. Buyer only dis¬
putes Seller’s position on the legal consequences of [Buyer’s] withholding of
approval by denying that the withholding of approval breaches the contract.
Specifically, Buyer justifies its non-approval on the basis that it did not approve
the vessels nominated by Seller because they were nominated on a substitute
basis and/or they were going to transport non-contractual cargo, and/or they
would be outside of the contractual time frame.
[8] “Additionally, Buyer justifies its non-approval because, it alleges, the
cargo which Seller would have supplied (from City A in Country Z) would
not conform to conditions of contract because it was not ‘fresh’ and would give
rise to a right of rejection of cargo.
[9] “Finally, Buyer claims that Seller has not suffered any loss, and hasfailed to
establish losses of the amount claimed.”
IV. SUMMARY OF CLAIMS
[10] “The Sole Arbitrator is required to decide whether Buyer’s withholding

of approval was justified. The question is whether Buyer’s non-approval
breached the contract in light of the two reasons it has advanced: (a) that
the nominated vessels were each justifiably unacceptable in some way, and
(b) that the cargo to be supplied from City A was not ‘fresh’ and hence
would be rejected upon discharge. If Buyer’s withholding of performance
under the contract is a breach not justified, the losses resulting therefrom
must be assessed.”

:
?
V. NON-APPROVAL OF VESSELS
[11] "The Sole Arbitrator first sets out the relevant facts, then a summary of
the parties’ respective legal positions, and third, his reasoning and decision on
this issue.”
1. Relevant Facts
[12] “Clause 6 of the contract provides: ‘Shipments: Max 25 years of age

vessels to be utilized. Seller has to receive Buyer’s approval for the vessels.’ It
is common ground that this provision is a term of the contract of the parties.
[13] “From the date of the contract, Seller exhibited performance, nominating
a vessel for the delivery. This was rejected by Buyer because the nomination was
on substitute basis and becauseii.had doubts arising from the lack of mention of
a load port. These reasons were disputed by Seller as a basis for withholding
approval, which, in its opinion, could be withheld for technical reasons alone.
[14] “In October of Year X, Seller nominated another vessel for the delivery,
loading at City A [in Country Z], It requested Buyer’s approval within a spec¬
ified time-window. It appears that this was the first time Buyer learned that the
goods were to be sourced from City A. Buyer did not respond to Seller’s
nomination.
[15] “Later in October of Year X, Seller nominated a third vessel for the
delivery, again loading at City A. It once again requested Buyer’s approval
within a specified time. Buyer did not respond in writing within this period.
Approval, however, was given three days later, linking it with conformity of the
cargo to the contract. The nominated vessel was Vessel M.
[16] “A few days later Buyer requested shipment from a certain country [other
than Country Z], while Seller stated that it could not deliver the first instalment
during the contractually stipulated time-period except from City A [in Country Z].
Again a few days later, Seller offered a shipment from a different Country Z city
arriving in Rotterdam in late December of Year X on an unnamed vessel. Buyer
rejected this suggestion due to the late delivery date. Last, Seller nominated another
vessel that could deliver part of the goods from yet another country to Rotterdam
in November of Year X. There was no specific response from Buyer to this offer.
By this time, under the contract, the goods ought to have been delivered.
[17] “Late in October of Year X, the parties explored modification of the
contract, with Buyer stating that it would purchase goods the following year
with a delivery schedule to be intimated during November of Year X, while
Seller stated that it would wait, but without prejudice to the present contract.
Seller followed up on the revised delivery schedule in November of Year X.

:':i
¡S

There was no specific response from Buyer. In late November of Year X, Seller
nominated another vessel for a cargo of the goods arriving in Rotterdam in late
December of Year X. No specific response from Buyer was received by Seller.”
2. The Parties' Legal Positions
[18] “The parties have referred, in their arguments, to Clause 6 of the contract
which was set out in the fax from Buyer to Seller dated the day before the
conclusion of the contract, and which provides as follows: *6 - Shipments:
Max 25 years of age vessels to be utilized. Seller has to receive Buyer’s approval
Í!
for the vessels.’
[19] “Seller argues that the second sentence in Clause 6 of the contract, which
requires Seller to receive Buyer’s approval for the vessels, is conditioned by the
first sentence of the same Clause, pursuant to which the vessels were to be no
older than 25 years. Seller also contends that this ability to withhold approval is
not absolute in as much as Buyer could not withhold approval (i) without assign¬
ing reasons or (ii) for reasons unrelated to the ‘technical characteristics’ of the
vessel nominated. According to Seller, Buyer is in repudiatory breach of the
contract because it rejected for extraneous reasons Seller’s [subsequent] nomi¬
nation of vessels. .. .
[20] “Buyer denies that the scope of its right under the second sentence of
Clause 6 of the contract is limited by the first sentence. According to it, the two
sentences quoted above constitute independent elements distinct from each
other. Buyer accepts that there is an implied limitation upon its right to not
approve vessels, but states that the scope of that limitation did not limit its
rejection of Seller’s nominations impugned in this arbitration. Buyer further
takes issue with Seller’s reliance upon nominations of vessels on ‘or sub’ basis
stating that its non-approval of these vessels cannot be considered a breach of
contract because they are not ‘nominations’ within the meaning of the contract
to which its conditioned power of approval attaches.”
3. The Sole Arbitrator’s Considerations and Decision
[21] “The Sole Arbitrator takes as starting point what is common ground
between the parties: that the power of approval accorded to Buyer by Clause
6 of the contract is not absolute and unconditional. The first issue is whether the
limitation on the power derives from Clause 6 itself (first sentence), or derives
from an implied term. In any event, it is a necessary implication from the parties’
common ground that the party upon whom the power has been bestowed must
act reasonably.

!
1
i
ARBITRAL AWARDS CASE NO. 14020, 2008 f
[22] “In the Arbitrator’s opinion, while, as a matter of law,2 the first sentence
of Clause 6 of the contract does not expressly limit the second sentence, it is
equally the case that the existence of a reason falling within sentence one would
imply a reasonable exercise of the power conferred by sentence two. In other
words, the absence of a reason that the nominated vessel is older than 25 years
goes some way towards establishing that the power under the second sentence
was not exercised in a reasonable manner. However, the absence of such a reason
is not sufficient alone. It is but one example of what would be considered a
reasonable basis for refusing approval.
[23] “In this respect, Seller has advanced a secondary case that the reasonable
exercise of the second sentence power must be judged by the yardstick of
whether there were any technical considerations. While the Sole Arbitrator
does not see how such a yardstick would attach to the second sentence as a
matter of law,3 he is persuaded that the lack of technical reasons provided by
Buyer in exercising such power is a relevant additional element to consider in
light of the failure to invoke any reason based upon age of the vessel.
[24] “Accordingly, the Sole Arbitrator decides that in the absence of technical
or age reasons related to the nominated vessel, the burden of proof shifts upon
Buyer to establish that it did exercise its power under Clause 6 of the contract
reasonably.
[25] “This, the Buyer seeks to do by advancing three situations: it may reject
vessels (a) which are 'programmed to load cargo which does not conform to the
contract (alternatively cargo which Buyer reasonably believes not to conform to
the contract)’; (b) which are incapable of delivering the cargo within the contract
time period, or (c) which are nominated on a ‘or sub’ basis.
[26] “Seller refutes this view on the ground that the conditioning of the approval
power of the method of delivery is independent of the right of rejection of the
goods for non-specification upon delivery. Seller also takes the position that even
if Buyer is correct in arguing that its right to reject vessels included the right to
reject them for what it believed was nonconforming cargo, the Buyer nonetheless
cannot rely on that for the non-approval of the first three vessels nominated . ..
because Buyer first raised the quality of cargo issue only thereafter.
[27] “The Sole Arbitrator is persuaded by Seller’s argument that the right of
non-approval accorded by Clause 6 of the contract is independent of the con¬
tractual provisions concerning the quality of the goods. The Buyer had a right to
reject the goods for non-conformity and Seller would not have been paid if this
2. “The Arbitrator considers that this is a situation which requires application of the rule against
redundancy: a written instrument must be interpreted to give each clause effect and purpose.”
3. “No legal authority is established by either party on the yardstick to be applied when interpreting
such provisions."

. -y
I--—-—
«
had occurred. There was provision for independent verification of the confor¬
mity of the cargo. In these circumstances, Buyer was adequately protected from
receiving below-specification cargo. As a matter of fact, no evidence has been
adduced which demonstrates that Buyer clearly requested Seller to have the
cargo examined or tested for conformity.
[28] “In the absence of specific words to this effect, tying in a requirement of
conformity of cargo with approval of a vessel does not fit in the contractual
scheme established by the parties: the right of examination for conformity is to
be exercised only after the goods have been transported by a vessel approved by
¿V Buyer. Even assuming such a linkage is within the contract, to permit Buyer to
deny approval on its ‘reasonable belief’ (in the absence of further specific words
to this effect) would be to accord one party a self-judging power on the per¬
formance of both parties of the contract.
[29] “Therefore, the Arbitrator concludes that for Buyer to reject a vessel
upon a purported belief of non-conformity of cargo, without any evidence of
such non-conformity, is outside the limits of the conditional power conferred
upon it by Clause 6 of the contract.
[30] “The same result obtains by application of English law and usages of the
trade. Sect. 27 of the Sale of Goods Act, 1979 (‘1979 Act’) provides that ‘it is the
duty of the seller to deliver the goods, and of the buyer to accept and pay for
them, in accordance with the terms of the contract of sale’. In the present arbi¬
tration, the seller has amply evidenced its efforts to effect delivery of the goods.
The buyer, on the other had, has not demonstrated that it conducted itself in a
manner to adhere to the contract by accepting the goods. As a result, Sect. 51(1)
of the 1979 Act is clear when it provides that 'Where the buyer wrongfully
neglects or refuses to accept ... the goods, the seller may maintain an action
against him for damages for nonacceptance’.
[31] “On this ground, Seller’s case is established. It repeatedly nominated
vessels for Buyer’s approval, who unreasonably withheld such approval. This
amounted to a breach of contract by Buyer.”
VI. GOODS NOT CONFORM TO CONTRACTUAL SPECIFICATIONS
[32] “Buyer has justified its refusal to provide approval on the basis that the
goods that Seller was going to deliver to it would not conform to the goods it had
contracted to purchase.
[33] “As already stated above, the Sole Arbitrator has held that the valid
exercise of the right not to approve vessels nominated by Seller does not include
the approval being withheld on grounds that Buyer ‘believed’ such cargo to be
non-conforming. Nonetheless, a large amount of the parties’ pleadings and
testimony was devoted to this issue.”
-
1. The Relevant Facts and the Parties’ Legal Positions
[34] “In October of Year X, when Seller nominated the second vessel, Buyer
claims that it for the first time learned of Seller’s intent to source the goods from
City A [in Country Z]. The delivery of City A goods, Buyer states, would be in
breach of the contract because those goods ‘were not fresh at all’. Buyer con¬
cludes that because of this it was entitled to reject the Seller-nominated vessels.
In order to establish that the City A goods were not fresh or new, Buyer relies
upon the fact that (a) since early September of Year X, one of its sister companies
had been receiving City A goods which were found to be of poor quality;
(b) Seller failed and refused to conform categorically that the goods it was
going to supply were fresh and (c) as a consequence it reasonably believed that
the City A goods which Seller intended to supply were non-contractual cargo.
[35] "Seller disputes Buyer’s arguments. It states that there was no purported
term of the contract requiring it to supply ‘fresh’ goods, much less requiring
--
Seller to ‘convince’ Buyer of the suitability of the cargo. The only requirement
was that the cargo conform to the Certificate of Analysis requiring the cargo to
have certain characteristics. Seller further argues that in any event, the goods it
going to source from City A were conforming to the contract condition. It
denies Buyer’s inferences from various selected facts, particularly given that the
central basis that Buyer relies upon turned out to be mistaken: Buyer’s sister
company’s poor prior experience was not with City A goods but with goods
from elsewhere in Country Z. Seller concludes its case on this issue by stating
that it had applied best efforts, over and above required by contract, in order to
satisfy Buyer of the conformity of the goods it was going to supply.”
2. The Sole Arbitrator’s Considerations and Decisions
[36] “The Sole Arbitrator considers that [it] is probably impossible to deter¬
mine in actual fact the quality of the goods that were to be the subject-matter
cargo, principally because no goods were ever transported. There was no sample
ever taken. The Arbitrator is persuaded by Seller’s argument that Buyer’s
defence requires an impermissible reliance upon inferences.
[37] “Primarily, Buyer’s defence fails because its seemingly convincing argu¬
ment that its state of mind was predisposed against City A goods, because of
experience of 26 deliveries, was subsequently found to be mistaken. A witness
statement establishes that the goods received by Buyer’s sister company in early
September of Year X which purportedly raised the concern about City A goods
was in fact not sourced from City A [in Country Z] but from City B in Country
Z. Moreover, Buyer has pointed to no evidence which indicates that Seller was
unable to source fresh goods from City C in Country Z. There is no basis

1
3
established upon which to doubt that Seller had trading arrangements with City
C in Country Z for the supply of variously aged goods, including freshly
produced goods. In fact, Buyer accepts that ‘had Seller been able to prove
that the product was fresh, the shipment would have been delivered in week
42 and there wouldn’t be any problem’. However, Buyer did not permit Seller to
make the delivery by refusing to grant approval for the vessels nominated by it.
Thus, Buyer has not established that there was a failure by Seller to perform its
obligations under the contract, and even assuming such a failure, it is clear that in
this arbitration Buyer cannot rely upon such failure as Seller’s failure to deliver
the product resulted from Buyer’s own withholding of the approval for the
marine vessels.
[38] “Then, there is the presence of a number of communications from Witness
M which evidence a number of instances when he confirmed that the cargo Seller
would supply would be in conformity with the contract. . . . Witness M repre¬
sented that the supply of these goods was fresh. Thus, if it turned out that the
goods were not fresh, this would give Buyer a valid right of rejection of the goods.
But Buyer was not permitted to self- judge and control Seller’s performance under
the contract on the basis of mere unsubstantiated, unproven speculation.”
VII. DAMAGES AND INTEREST
[39] “Seller claims its loss of profit as a loss arising from Buyer’s breach. Buyer
has claimed that in the event it is found in breach, no damages arise and Seller has
failed to prove the amounts which it has claimed.
[40] “Seller claims relief in a certain amount as its loss suffered. It claims
interest and costs above this amount. This is the amount of the sale in the
contract less the cost of procuring the goods from City C in Country Z, together
with freight and other costs. Buyer disputes this amount first, because it states
that it would anyway be entitled to reject the goods for non-conformity.
[41] “The Sole Arbitrator has already held, above, that Buyer has failed to
prove that the goods were non-conforming. Second, Buyer states that any
damages that are recoverable must be based on the market prices prevailing
for the goods at the time and not on the basis of the contract.
[42] “The Sole Arbitrator considers that it must be established that a loss was
indeed suffered in order for damages to flow from a breach of contract. Sect. 50
of the 1979 Act provides:
‘Damages for non-acceptance

(1) Where the buyer wrongfully neglects or refuses to accept and pay for
the goods, the seller may maintain an action against him for damages for
nonacceptance.

1
(2) The measure of damages is the estimated loss directly and naturally
resulting, in the ordinary course of events, from the buyer’s breach of
contract.
(3) Where there is an available market for the goods in question the measure
of damages is prima facie to be ascertained by the difference between the
contract price and the market or current price at the time or times when the
goods ought to have been accepted or (if no time was fixed for acceptance)
at the time of the refusal to accept.’4
The principles enshrined in Sect. 50 have been succinctly stated as follows:
‘When the seller is ready and willing to deliver the goods, and requests the
buyer to take delivery, and the buyer does not take delivery of the goods
within a reasonable time after such request, he is liable to the seller for any
loss occasioned by his neglect or refusal to take delivery, and also for a
reasonable charge for the care and custody of the goods.’5
[43] “In the present case, the Arbitrator has found that the buyer did not
indeed take delivery of the goods when requested to do so by the seller in
accordance with the contract. The ‘measure of damages is the estimated loss
directly and naturally resulting, [in] the ordinary course of events, from the
buyer’s breach of contract’.6
[44] “In Seller’s view, ‘even if Seller had sold the goods which the Buyer
refused to accept to another buyer this buyer would not have been a substitute
for the Buyer as Seller would have been in a position to supply the second buyer
in any event’. It relies upon Re: Vic Mill [1913] 1 Ch 564 for its proposition that if
it is not proved that there was a substitute buyer, loss of profit would attach to a
breach of a sale of goods contract for the buyer's breach. The corollary is that if
there was a substitute buyer, no losses were incurred, and hence loss of profits
does not automatically attach to a buyer’s breach of contract.
4. "See also Art. 74 CISG [United Nations Convention on Contracts for the International Sale of
Goods, done at Vienna on 11 April 1980]:
‘Damages for breach of contract by one party consist of a sum equal to the loss, including loss of
profit, suffered by the other party as a consequence of the breach. Such damages may not exceed
the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion
of the contract, in the light of the facts and matters of which he then knew or ought to have known,
as a possible consequence of the breach of contract.’”
5. "Halsbury’s Laws of England, Vol. 41, para. 205, p. 165.”
6. “Halsbury’s Laws of England, Vol. 41, para. 288, p. 211.”

[45] “Thus, if it is established that the goods earmarked for the contract were
sold to another buyer as a substitute buyer, loss of profits would be an inap¬
propriate basis to calculate any damages because there was no loss. This would
be particularly true if the goods could only be sold to one buyer, and if it was, in
fact, sold to a substitute buyer.
[46] “Seller states that in the present arbitration, Witness M’s evidence is that
the supply of goods available to Seller for sale purposes exceeded the then
market demand. However, the Tribunal is not satisfied that this is the correct
interpretation to draw from Witness M’s testimony, which was - at best -
inconclusive in this respect. For example, Witness M himself admitted that ‘it
might be’ that there was an excess of demand for goods at the relevant time.
Witness M outlines the manner of the business:
‘Q. You say that you sold the goods that you would have sold to Buyer to
others who were satisfied with its quality.
A. Yes.
Q. And did they make any issue about the freshness of those goods?
A. No.
Q. And was that the same goods? It could have been the same goods but
older or newer, that is what I am trying to get at.
A. No, but just to tell you that the goods destined to Buyer were fresh
production.
Q. And then you ultimately sold it to some other source?
A. Yes, we sold the right product in the right way.
Q. Is it that you sold the same type of product to others or the same pile of
goods, that is my question.
A. No, the same type of product but most probably the quantity not col¬
lected by Buyer, so we have not divided on the stockpile. This is the unlifted
quantity for trading. It is the new quantity available. The material was fresh
so most probably we load it altogether.’
[47] “Witness M testified that there was no minimum amount Seller was
obliged to lift from City C in Country Z under a contract of supply between
them. Therefore, Seller had access to a stockpile of goods with no minimum
obligation. Witness M's testimony establishes that the goods earmarked for
Buyer were indeed sold to another customer, in Country Y:
‘Q. Okay. Now what happened with your arrangement with City C in
Country Z? You had agreed with them to take a certain quantity in two
shipments, and so on. We haven’t seen the contract that you made with City

C in Country Z. Presumably you made an agreement with them that they

would give you this cargo, did you?
A. No. I guess it was a verbal agreement with no obligation. It was a kind of
contract slightly different from the other because in this case we deal with [a
different kind of customer].
Q. What was the nature of the agreement? What had they undertaken?
A. That they would give us the material, the fresh material, for exports and
we sold - now I don’t remember but we sold most the part in Country Y,
and. . , .
Q. Most of what you sold?
A. In Country Y.
Q. Of the material that you would have sold to Buyer, you sold in Country
Y, did you?
A. No, it was not a replacement of the material. We got additional custo¬
mers.
Q. No, you are getting on to a different question. What did you mean when
you mentioned Country Y? Just go back. What did you say then?
A. That we succeeded in some way to fulfil the obligation but as far as I
know the obligation with City C in Country Z is still pending today.
Q. So, this quantity, you fulfilled the obligation to take this quantity from
City C in Country Z?
A. I tell you yes but I was not in person in charge for that. I mean, my role in
the company was to sell the material and not buy the material, so I cannot
reply-
Q. But your inclination, or certainly what you said first, is that it was sold.
You did fulfil the commitment and you sold it in Country Y, or at least
mostly in Country Y.
A. Yes, as far as I know in Country Y and in other countries but I don’t
remember where.’
[48] “As the goods were sold to another buyer, it needs to be answered
whether that buyer was a ‘substitute’ buyer for Buyer, or an independent
buyer in which case there could have been two sales instead of one.
[49] “The Tribunal is satisfied on the weight of the evidence that the goods
earmarked for Buyer were sold to a customer in Country Y, and that Seller
would in all probability have been unable to supply both orders from the
City A goods available to it. This appears to be consistent with the underlying
rationale behind the business deal between the parties, which was driven by
Buyer’s sister company’s inability to source sufficient goods from its habitual
sources. The weight of the evidence points to the fact that demand for goods at
that time outstripped supply in the relevant markets. The Tribunal recognizes

•
■■■■■

that some of Witness M’s testimony is inconsistent with this proposition, but
there are serious questions as to the credibility of that evidence, particularly in
light of the circumstances that gave rise to the parties’ agreement in the first
place.
[50] “In these circumstances, Seller has been unable to establish the existence
of a loss flowing from Buyer’s breach of contract. Rather, it seems to have been
placed under no material prejudice by Buyer’s non-performance. Accordingly,
its loss of profits claim as originally pleaded fails.
[51] “Given that the goods was sold to another buyer, it is clear that the
Seller’s loss of profits claim, based upon the difference between its cost price
and the contract price fails. In these circumstances, it might be appropriate to
■i utilize the ‘market price’ method to ascertain the quantum of damages, if any,
although, as discussed below, Seller’s damages case also fails under this scenario.
According to one leading commentator,
‘the prima facie rule is founded on the general duty of the seller to mitigate
his damage by taking all reasonable steps to minimise his loss, and, where in
breach of a contract for the sale of goods a buyer refuses to accept or pay for
them, the reasonable step for the seller to take in normal circumstances is to
sell the goods for the best price that he can’.7
[52] “In the present arbitration, that is indeed what Seller did. In such a sit¬
uation, ‘the difference between the market or current price at which he sells
them and the contract price which he would have obtained for them is the true
measure of damages consequent on the buyer’s breach of the contract.’8
[53] “Seller has not adduced any evidence of the sale of the goods to the
Country Y customer. As a result, there is no evidence on the record enabling
the Sole Arbitrator to take a view on what the ‘true measure of damages
consequent on the buyer’s breach’ of the contract was, or if, indeed, there
were any compensable losses at all. In the absence of such evidence, let alone
proof, the Sole Arbitrator is not in a position to establish on his own initiative
the true measure of damages if, indeed, any compensable losses were incurred
at all.
[54] “Seller has made no alternative claim or adduced any other basis upon
which damages are due and owing. The Sole Arbitrator therefore cannot con¬
sider any other possible basis upon which damages would be due.”


VIII. COSTS
;
i
[55] “Each party’s claims have succeeded in part and failed in part. Buyer was
awarded its application for security for costs. Equally, Buyer just days before the
final hearing and after all written pleadings abandoned its objections to
jurisdiction.
[56] “In these circumstances, the Sole Arbitrator considers that the parties
should bear the costs of the arbitration as fixed by the Court of Arbitration
of the ICC in equal parts. ... In addition, each party shall bear its own costs of
representation.”
(....)

-i- : % =-.j -..i:-.: TZr?.
Final award in case no. 14108
Parties: Claimant: Joint Venture (US)

Respondent: State W

arbitration:
Subject matters: — constitutional procedures required for formation of

contract with State
- good faith
- estoppel
- UNIDROIT Principles of International Commercial
Contracts
- limitation period
Summary
State W granted the exploitation of an Area to the Joint Venture by a Pro¬

duction Sharing Agreement (PSA), which was concluded for twenty years
and could be extended by mutual agreement. One year before the contrac¬
tual expiry of the PSA the parties entered into a Renewal and Extension
Agreement (REA), which was signed by State W. Following the REA’s sign¬
ing and repeated assurances by State W that an extension had been granted,
the Joint Venture commenced a new exploration program. When the Par¬
liament of State W refused to approve both a Partial Amendment Agree¬
ment (PAA) closely linked to the PSA and the REA, the Joint Venture was
evicted from the Area. The arbitral tribunal held: lacking ratification of the
REA/PAA by Parliament, the PSA was not extended, so that the Joint
Venture could not claim damages for breach of the extension. However,
State W’s ambiguous and contradictory behavior amounted to a violation
. of its duty of good faith under the UNIDROIT Principles. On this basis,
State W was directed to reimburse the Joint Venture for the costs of the
exploration program it was led to commence by State W’s behavior. State
W’s counterclaims were denied because either unproved, time-barred or
factually wrong; the UNIDROIT Principles were again applied to the

issue of the moment on which a limitation period started running. State W

was directed to pay the costs of the arbitration and the Joint Venture’s legal
costs.
This arbitration was conducted through NetCase.
Contractor and State W entered into a Production Sharing Agreement (PSA) to

explore and develop the geological resources of a certain area (the Area). The
PSA was concluded for a period of twenty years, commencing on the date of the
first commercial discovery in the Area. Art. III(c) of the PSA included an option
for a five-year extension by mutual agreement of the parties. The PSA provided,
inter alia, that part of the product obtained from the Area would go to cover
Contractor’s expenditures (the Cost Product); the remaining product was to be
divided between Contractor and State W (the Share Product). The PSA was
ratified by a law of State W. Following the first commercial discovery in the
Area, the PSA entered into force and was to be in force until November of Year
X. Art. XXII of the PSA provided for ICC arbitration of disputes in Paris.
Contractor was subsequently replaced as Operator of the Area and party to the
PSA by the Joint Venture it created with another company, Company B.
Sixteen years after the first commercial discovery in the Area, and four years
before the expiry of the PSA in November of Year X, the competent Ministry of
State W and the Joint Venture commenced negotiating a five-year extension
of the PSA. To this purpose, in October of Year X-3, the Council of
Ministers of State W issued a Resolution appointing State W officials to a
State Committee charged with discussing the extension (the Extension
Committee Resolution). In the negotiations, the Ministry required among
other conditions for the extension that the Joint Venture relinquish 25 percent
of its interests in the Area: 10 percent would be granted to a State W-owned
Company, Company C, and 15 percent to another company, Company S, which
would then pay a signature bonus to State W.
In January of Year X-l, the parties concluded and signed a five-year Renewal
and Extension Agreement (the REA) containing, inter alia, the new conditions
mentioned above. The REA provided that it would become binding upon
exhaustion of constitutional procedures. Accordingly, the competent Minister
submitted the REA to the Council of Ministers for approval. The Council issued
a First and then a Second Resolution approving the REA; they also decided that
instead of submitting the REA to Parliament for its approval, as required under
State W law, a separate document, the Partial Amendment Agreement (the
PAA) would be submitted. The PAA included all the terms of the REA with
the exception of the clauses relating to the five-year extension and the 25 percent
interest relinquishment. It appeared from the evidence supplied in the

arbitration that this choice was motivated by the fact that the Parliament of State
W had recently refused to ratify agreements containing similar provisions.
The PAA was submitted to Parliament but subsequently withdrawn.
Parliament then requested to see the entire REA and eventually refused to ratify
either agreement.
While the PAA and later the REA were before the Parliament of State W, State
W representatives continued to assure the Joint Venture that the extension had
been approved and was final. In this period, subsequent to the execution of the
REA and before the Parliament’s final dismissal, the Joint Venture invested in a
new exploration work program.
Following Parliament’s refusal to ratify the PAA and the REA, State W con¬
sidered that the PSA had not been extended and had expired on its contractual
expiry date of November of Year X. It therefore evicted the Joint Venture from
the Area and replaced it with a new Operator, the State W-owned Company C.
The Joint Venture commenced ICC arbitration as provided for in the PSA,
arguing that the PSA was validly extended by the REA or in the alternative that
the PSA had been extended on its old terms, and seeking damages for breach of
the five-year extension of the PSA allegedly granted by the Council of Ministers
of State W. State W filed several counterclaims.
In the course of the arbitration, the Joint Venture suggested the use of
NetCase. State W agreed and the proceedings were entirely conducted in this
manner, which allows arbitrations to be conducted largely on-line on a secured
and dedicated platform.
The three-member arbitral tribunal held that the PSA expired in November of
Year X and was not renewed, either through the REA or on its old terms.
The arbitrators noted at the outset that the PSA did not in itself provide for an
extension; it merely allowed that an extension be agreed on in a subsequent
contract. No such extension was validly made. The REA provided that it
would be binding on the parties upon exhaustion of the constitutional proce¬
dures in State W. As it was uncertain what the parties meant by this expression,
the arbitrators examined the earlier drafts of the REA and concluded that in die
light of the parties’ negotiations the approval of the REA by the Council of
Ministers - though a necessary first step in the “constitutional procedures” and
validly given - was insufficient to make the REA binding on the parties. They
found that “constitutional procedures” could only mean in the parties’ mind
ratification by Parliament. Further, the REA did not become binding through
the PAA, since the PAA, according to its own terms, would come into effect
only if and when ratified by Parliament (which in itself further supported the
conclusion that the constitutional procedures mentioned in the REA meant
parliamentary ratification).
\
1
Having held that the PSA expired on November of Year X, the arbitral tri¬
bunal then denied the Joint Venture’s claim for damages in so far as it was
founded on a breach of the allegedly extended concession. However, the
Joint Venture also advanced its claim for damages on other legal bases, arguing
that State W was estopped from denying that the extension took place (i) because
of its own representations that the PSA had been legally extended and
(ii) because of its failure to use its best efforts to have the PAA ratified. The
Joint Venture further contended that State W was separately liable for breaching
its international obligations in respect of foreigners and their property.
The arbitral tribunal first dismissed this last argument, finding that it failed on
the facts: there could be no breach by State W of its international obligations in
respect of foreigners and their property where the concession was not extended
beyond November of Year X. If the Joint Venture had no right to an extension, it
was not affected in any manner by State W’s decision not to extend the
concession.
The former arguments advanced by the Joint Venture were based on the
concept of estoppel, which the arbitral tribunal found generally applicable
here (disregarding the technicalities of the doctrine as applied in the common
law jurisdictions) as part of the general principle of good faith, which is recog¬
nized by both State W and United States law. However, as State W accepted
both that its law is silent as to the precise content of the duty of good faith and
that it was legitimate for the arbitral tribunal to have regard to analogous prin¬
ciples of international law, the tribunal referred to the UNIDROIT Principles.
On this basis, the arbitrators held that the claim that State W did not use its
best efforts to have the PAA ratified was factually wrong in the circumstances of
the case.
The Joint Venture also contended that State W was precluded from arguing
that the extension was not final and binding because the highest competent
government officials represented to the Joint Venture’s representatives as well
as to third parties that the PSA had been legally extended. The arbitrators rea¬
soned that although State W’s behavior had been ambiguous and contradictory,
it did not amount to an extension of the PSA whether on old or new terms. Nor
was it the causation of the non-extension of the PSA. Consequently, the Joint
Venture could not claim compensation for the damages resulting from the non¬
extension. On the other hand, however, the Joint Venture was entitled to be
compensated for those damages caused by the steps it took, under the form of
actions or omissions, in reliance on the ambiguous and contradictory behavior
of State W, that is, the new exploration program.
The arbitral tribunal then dismissed State W’s counterclaims, holding that
they were either unproved or wrong on the facts of the case. The tribunal
again referred to the UNIDROIT Principles in respect of State W’s claim
660 Reprinted from file Yearbook Commercial Arbitration

w:
53TJEF-"
that the Joint Venture failed to withhold and pay certain taxes in respect of its
local employees for several years while the PSA was in force (a claim that the
tribunal denied finding that it was either time-barred, factually wrong or
unproved). The parties disagreed as to the applicable statute of limitations.
The arbitrators applied the five-year limitation period provided for in State
W law rather than the three-year limitation period in the UNIDROIT
Principles, reasoning that the latter could not apply when the applicable law,
State W law, clearly established specific rules. The arbitrators did apply the
UNIDROIT Principles subsidiarily, however, in respect of the question of
the moment in which the limitation period started to run, because of a lack
; of clarity of State W law as regards this specific issue.
The arbitral tribunal directed State W to pay the costs of the arbitration and
reimburse the Joint Venture for its legal costs.
Excerpt
[1] “The first issue to be solved by the Arbitral Tribunal is that of the exten¬
sion of the PSA. It will subsequendy deal with the issue of damages either
claimed by the Joint Venture or counterclaimed by the State W.”
I. EXTENSION OF THE PSA
[2] “In December of Year X-2, both the [Renewal and Extension Agreement
REA)] and the [Partial Amendment Agreement (PAA)] were signed by the
parties.1 No agreement regarding the extension of the [Production Sharing
Agreement (PSA)] was discussed thereafter. Consequendy, the Arbitral
Tribunal must first analyze carefully the provisions of those agreements in
order to decide whether an extension of the PSA was validly granted by State
W to the Joint Venture, although the PAA never received parliamentary approv¬
al. In case the analysis of those agreements is not sufficient to support such
conclusion, it will assess the behavior of the parties both before and after
their signature with a view to determining whether the PSA was nevertheless
extended.”
1. “Although the parties are in dispute as to the date of the initialling of the changes to the REA and
of signing of the PAA, it is common ground that both agreements were respectively initialled and
signed by them at about that time.”

!
1. Relevant Provisions of the REA and PAA
[3] “The Joint Venture asserts that an extension for five years on old terms of
the PSA was validly granted by the Minister pursuant to the REA. Respondent
disputes that such extension was ever granted as the PAA did not receive
Parliament ratification, a condition precedent to make the REA binding on
the parties, the REA and PAA forming one indivisible agreement.
[4] “In this respect, it is worth recalling that, since the beginning of their
negotiations, the parties had not contemplated that some of the provisions of
the REA they were discussing would be separately submitted for approval to
Parliament for approval under the form of a PAA. However, upon request of the
Council of Ministers with its First Resolution, State W presented to the Joint
Venture a PAA containing those terms that had to be submitted to Parliament
and the Joint Venture accepted such bifurcation. As a matter of fact, the PAA
includes all the terms of the REA with the exception of Art. 3 relating to the
extension and Art. 4 relating to the 25 percent interest and assignments.”
a. REA
[5] “Art. 24 (b) provides that ‘this Renewal and Extension Agreement and the
Annexes attached hereto represent the entire agreement between the parties
hereto with respect to the renewal and extension of the Agreement, superseding
all other previous oral and written communications, representations and agree¬
ments with respect to such renewal and extension (emphasis added). Thus, the
December version of the REA replaces every previous version and represents
what the parties intended to agree upon.
[6] “Beside the provisions of the PAA, the REA is thus the only legal source of
agreement between the parties regarding the extension of the agreement,
Therefore, the provisions of the previous versions of this REA should solely
be considered as an indicator of the parties’ intent as regards the utilization of
certain specific terms that are either not defined in the REA or ambiguous.
[7] “Art. 3.1 of the REA states that
‘the parties hereby agree that the development period referred to in Art. Ill
paragraph (c) . . . shall be renewed and extended for an additional period of
five years to terminate in November of Year X+5, and the Ministry hereby
grants such renewal and extension subject to the terms of the Agreement
and this Renewal and Extension Agreement. It is understood and agreed
that the Agreement as amended by this Renewal and Extension Agreement
shall not be subject to further extension or renewal.’

J

[8] “This provision conveys the impression that an extension for five years was
granted to the Joint Venture by the Ministry without the need to obtain further
approval as, in fact, no reference to ratification by Parliament or approval by any
other authority is mentioned in this Article. Additionally, the use of the present
tense when using the terms ‘the Ministry hereby grants’ seems to give an imme¬
diate effect to the extension. However, it is specified that the extension is granted
‘subject to the terms of the Agreement’ emphasizing that one should examine the
other provisions of the REA in this regard. The binding effect of the extension
cannot therefore, in accordance with this Article, be read alone as it refers to ‘the
terms of the Agreement’. One should therefore take into consideration the other
provisions of the REA in order to determine whether an extension was granted.
[9] “Further, it is to be noted that Art. 3.1 does not purport to grant an
extension only, but also a renewal with amendments. Contrary to the Joint
Venture’s suggestion, the extension of the PSA was not considered separately
from its renewal. Moreover, even the recital of the REA links the agreement to
extend the PSA and the one to amend it by stating the following:
‘the Ministry wishes to negotiate and execute this Renewal and Extension
Agreement to renew and extend the term of the Agreement and to amend
certain terms of the Agreement in order to make such terms consistent with
the terms of recent production sharing agreements executed between the
Ministry and third parties’.
From this provision, it is thus clear that both the extension and the amendments
of the PSA are to be considered altogether.
[10] "Art. 27 of the REA deals directly with its binding effect. It reads:
‘This Renewal and Extension Agreement signed by the Ministry and Con¬
tractor, shall be binding on the parties hereto upon exhaustion of the
constitutional procedures in the State, which will give the provisions of
this Renewal and Extension Agreement and its Annexes attached hereto,
full force and effect. Ministry represents that it has obtained such approval
of the State Council of Ministers on even date with the signing of this
Renewal and Extension Agreement and covenants that there are no further
approvals required by the Government in order to make this Renewal and
Extension Agreement binding on the State. Subject to the foregoing provi¬
sions, the terms and conditions contained in this Renewal and Extension
Agreement shall be effective as of the Renewal and Extension Effective
Date. Except as amended pursuant to this Renewal and Extension Agree¬
ment, all other terms and conditions of the Agreement, as in effect prior to
this Renewal and Extension Agreement, shall control.’

I
ARBITRAL AWARDS CASE NO. 14108 ■
-'U
[11] “The parties have divergent views as regard the meaning of the terms of $
this Article. The Joint Venture alleges that Art. 27 demonstrates the parties’ :
agreement regarding the binding effect of the REA. For it, the ‘the constitutional
procedures’ did not refer to the issuance of a law but rather intended to make
clear the parties’ intention to separate procedures. The Council of Ministers had
to approve the extension and the assignments and Parliament had to ratify the
other terms, covered by the PAA. For it, the exclusive approval of the extension
and the assignments by the State Council of Ministers is demonstrated by the
second sentence of the Article stating that ‘such’ approval had been obtained.
Further, it considers that the ‘constitutional procedures’ as regard the REA were
exhausted by the said approval of the State Council of Ministers as in fact ‘there
[was] no further approval required by the Government in order to make this
Renewal and Extension Agreement binding on the State’. With the approbation
of the State Council of Ministers, every condition was fulfilled for these matters
and the REA was binding.
[12] “The fact that the PAA was to be submitted to Parliament for ratification
was, in its view, independent. Therefore, whether the terms of the PAA were or
not approved by Parliament did not have any impact on the legal effect of the
REA. Indeed, the Joint Venture is of the view that in case Parliament would not
approve the PAA, the extension would take place under the existing terms of the
PSA, not amended, pursuant to the fourth sentence of Art. 27.
[13] “On the contrary, State W asserts that the whole of the REA was to come
into force when the constitutional procedures would be exhausted. The exhaus¬
tion of those constitutional procedures would only take place with parliamen¬
tary ratification of the terms of the PAA. Under a single circumstance could one
give a binding effect to the REA: the approval by Parliament of its 23 provisions,
subject of the PAA. Further, Respondent does not accept that the second
sentence of the REA defined the moment when the REA was to become binding
but solely informed that the Ministry had obtained approval of the REA by the
Cabinet and that no further approval by the Government was required.
[14] “The main issue hereby is to determine what the parties contemplated
when they inserted the words ‘exhaustion of the constitutional procedures’ and
what was the effect of the approval of the terms of the REA by the Council of
Ministers. However, it is true that the wording of Art. 27 is very ambiguous. As
such, it needs to be examined carefully and as a whole.
[15] “First, it is not disputable that by the first sentence of Art. 27, the parties
made a clear reference to the constitutional procedures of the State and further
specified that these constitutional procedures had to be exhausted before the
REA could become binding. The use of the future tense in the first phrase (‘will
give’) emphasizes that the binding effect of the agreement was conditional upon
the exhaustion of these constitutional procedures. Accordingly, the REA could

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not become binding by mere agreement of the parties since the additional con¬
tractual requirement that the constitutional procedures be fulfilled [existed].
[16] “The major question to which the Arbitral Tribunal has thus to answer is
the following: what did the parties mean by ‘exhaustion of constitutional
procedures’?
[17] “For the Joint Venture, the constitutional procedures were nothing else
than the approval of the Council of Ministers. To support its opinion, the Joint
Venture relies on the use of the terms ‘such approval’ in the second sentence,
which allegedly referred to the constitutional procedures. Although the Joint
Venture admits that the terms of the PAA had to be submitted to Parliament, it
considers that, with regards Arts. 3 and 4, the constitutional procedures were
exhausted by the Council of Ministers. For it, the ratification of the terms of the
PAA was an independent issue.
[18] “The Arbitral Tribunal cannot share this opinion. The use of the word
‘such’ is not sufficient to conclude that the constitutional procedures referred
v;
solely to the approval of the Council of Ministers. In fact, the Arbitral Tribunal
emphasizes that the entire wording of this second sentence is to be taken into
consideration in order to determine what the parties had in mind. The last part of
the sentence is of relevance to determine whether the approval by the Council
was sufficient or not. Indeed, it states that ‘no further approvals by the
Government’ was reqùired, which, contrary to the Joint Venture’s assertion,
seems to merely underline that the necessary steps to reach an agreement from
the Executive was completed. However, the fulfillment of the legal procedures
at the governmental level did not imply that no approval from other State
authorities was required. Indeed, the insertion of the words ‘by the
Government’ would have been meaningless if it was implied that further
approval was required. Should the approval by the Government be sufficient
and unique, the parties could have merely stated that ‘no further approvals’ or
‘no further approvals by any authority’ were required.
[19] “The text is more in line with Respondent’s explanation that the approval
by the Council of Ministers was a first step in the constitutional proceeding,
justifying the precision that ‘no further approvals by the Government’ were
necessary.
[20] “It is therefore very difficult to conclude, on the basis of the use of the
word ‘such’, that the parties intended the REA to be binding upon approval of
its terms by the sole Council of Ministers.
[21] “The terms ‘exhaustion of the constitutional procedures’ could not, as
asserted by the Joint Venture, have been added on purpose ‘to encompass the
parties’ intention to submit the bifurcated parts of the agreement to a distinct
procedure: Council of Ministers’ approval of the extension and assignments, and
Parliamentary ratification for the PAA’s terms’. To say the least, if so was the

case, it cannot be read from the wording of Art. 27. In reality, the REA failed to
make this distinction clear and to indicate precisely what the parties meant by
‘constitutional procedures’.
[22] “In the light of the parties’ silence as to the meaning they intended to give
to the words ‘exhaustion of the constitutional procedures’ and because of their
different possible interpretations, the Arbitral Tribunal needs necessary to
examine the previous drafts of the REA.
[23] “The two previous drafts to the December version are of much relevancy.
In the September of Year X-2 draft, Art. 27 provided that the REA would be
binding on the parties ‘upon issuance of the law approving this [REA] according
to the constitutional procedures in the State’. In this version, the constitutional
procedures thus meant the issuance of a law. In the version of October of Year
X-2 (on the basis of which the final REA was actually prepared), it was on the
contrary simply foreseen that the REA would be binding upon approval of the
Council of Ministers, with no reference of any kind to ‘constitutional proce¬
dures’. The parties thus first referred to the fulfillment of constitutional proce¬
dures, meaning the issuance of a law, to make the REA binding and subsequently
deleted every reference to constitutional procedures and simply referred to the
mere approval by the Council of Ministers.
[24] “Yet, it is undoubtedly on purpose that the terms ‘constitutional proce¬
dures’ were re-inserted in the December version and so particularly in view of
the latest version that had deleted it. The Joint Venture’s explanation is that, if
the parties had kept the terms of the October version, i.e. that the REA only
needed approval by the Council of Ministers, it would have been contrary to
their understanding that only the items falling within the Government’s
exclusive competence, rather than the entire REA, would immediately become
binding. For the Joint Venture, the reference to ‘the constitutional procedures’
in the final version of the REA was reintegrated only in order to evidence that
part of the REA, i.e. the terms of the PAA, had to be put before Parliament
without however affecting the legal effect of the approval of the extension by the
Council of Ministers.
[25] “The Arbitral Tribunal finds this explanation difficult to accept as it is in
fact impossible to deduce such a consequence from the wording of the REA. The
Arbitral Tribunal is rather convinced that the terms ‘constitutional procedures’
were added on purpose, because even if the approval by the Council of Ministers
might have been sufficient for a mere extension of the PSA, the extension of the
concession extended with amendments required parliamentary approval. The
Constitution of State W provides that ‘contracting concessions should not be
granted unless by a law and adds that the Council of Representatives is the
legislative authority of the state that shall enact laws. The issuance of a law
thus was a constitutional requirement in State W for concessions contracts to

lili:--—-
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become binding. In that view, it is noteworthy that the original PSA was ratified
by law. Similarly, further amendments to its terms of the PSA were ratified by
Parliament and incorporated into the terms.
[26] "Further, although Art. Ill of the PSA provided that the parties could
renew the PSA for an additional five years by mutual agreement, at no time is it
mentioned within the REA that the extension and the assignments would be
legally binding as soon as they received approval by the Council of Ministers
(the terms of Art. 27 making no distinction between the provisions of the REA)
irrespective of the ratification of the PAA; and at no time is it explained that the
major part of its provisions were to be submitted to Parliament under the form
of a PAA. There are no explanations as to the bifurcation of the agreement and as
to its consequences. As recalled by State W’s counsel within its closing state¬
ment, the first sentence of Art. 27 ‘does not divide up the moment of binding
between two different moments, or two different events. It does not [either]
divide it up between clause 3 and clause 4 on the one hand and the other 23
clauses on the other hand.’
[27] “Last, the REA states that ‘except as amended pursuant to this Renewal
and Extension Agreement, all other terms and conditions of the Agreement shall
remain in full force and effect’. For the Joint Venture, this sentence makes the
extension binding. In its opinion it means that in case Parliament would not
approve the PAA, the extension would take place under the existing terms of the
PSA.
[28] “Yet, as it results from the recital that the Ministry intended to agree
simultaneously to the extension and to the amendments of certain terms of
the PSA ‘in order to make (these terms) consistent with the terms of recent
production sharing agreements’, it seems difficult to sustain that the Ministry
would have been ready to extend the PSA on old terms. On the contrary, State
W considers that this sentence means that, if the REA comes into force, its new
provisions will apply and so will the remaining Articles of the PSA that are not
amended.
[29] “Again, the use of future tense tends to favor Respondent’s interpreta¬
tion. Ah amended terms of the PSA will naturally apply but so will the una¬
mended terms of the PSA. ‘All other terms and conditions of the Agreement
shall remain in full force’ necessarily refer to the terms that are not amended by
the PSA, in opposition to the those ‘amended pursuant to the Renewal and
Extension Agreement’.
[30] “The fact that unamended terms remain applicable does not imply that
the extension and the assignments were binding. The original PSA did not in
itself grant an extension: it contemplated that there could be an extension if the
parties reached a mutual agreement.

[31] “This last sentence of Art. 27 merely stated that both, new terms,
i.e. amended terms of the PSA, and unamended ones were to apply but did
not deal with the binding effect of these provisions. Further, the assignments
would, in any case, have to be considered as amended terms. In that light, Art.
XIX (a) of the PSA, relating to assignments, simply provides that the Contractor
is unable to assign any of its rights to a person not party to the PSA without the
written consent of the State. This provision implies merely that the Joint
Venture could not have assigned its interests to Company S without State
W’s consent. However, it does not mean that the Minister’s signature of the
assignments was sufficient and that, as an amendment of the PSA, it did not
require approval of the Parliament.
[32] “Therefore, the relevant provisions of the REA, particularly Art. 3.1 and
Art. 27, lead the Arbitral Tribunal to the provisional conclusion that the approv¬
al of the terms of the REA by the Council of Ministers was insufficient to make
the REA binding on the parties. Further, it is impossible to deduct from the four
sentences of Art. 27 that Arts. 3 and 4 solely required approval by the Council of
Ministers, whereas all the other terms of the REA would have needed ratifica¬
tion by Parliament. More importantly, nowhere in Art. 27 is it mentioned that
there existed two independent procedures as regard the binding effect of the
REA. However, it is not disputed by the parties that some terms had to go before
Parliament and others not. What is disputed is the fact that the approval by
Parliament of the terms of the PAA conditioned the binding effect of the
whole REA. Yet, from the lecture of Art. 27, it appears that the REA could
only become binding upon exhaustion of the constitutional procedures, proce¬
dures that were apparently not fully followed.
[33] “The REA and the PAA are closely linked and cannot be considered as
two totally independent agreements. Additionally, the PAA, which was signed
on the same day of the REA, states that the extension is subject to the PAA
coming into effect in November of Year X. Consequently, the provisions of
both agreements should not be read in an isolated manner. Moreover, it is
important to examine the provisions of the PAA in order to see whether it
gives indications as regard the bifurcation between the REA and the PAA as
well as indications of their respective binding effect.”
b. PAA
[34] “The recital of the PAA provides that ‘the parties agreed to renew and
extend the term of the Agreement for a five-year term to expire in November of
Year X+5 and to amend certain terms of the Agreement, as set out therein,
provided that this Agreement of Partial Amendment shall come into effect in
November of Year X’ (Emphasis added).

lí
[35] “State W contends that this provision and particularly the words
‘provided that’, shows that the agreement to renew and extend and the agree¬
ment to amend certain terms of the PSA were contingent on approval of the
PAA.
[36] “On the contrary, for the Joint Venture, this cannot be the case. For it, the
words ‘provided that’ only refer to the preceding phrase ‘and to amend certain
terms of the Agreement’, meaning that the legal force of the amended terms
depends on the coming into effect of the PAA in November of Year X. It
explains that Art. 3 of the PSA was not ‘set out’ in the PAA and that accordingly
the phrase ‘as set out therein’ could only modify the second part of the recital,
i.e. the PAA and the amendments. It then concludes that logically the ‘provided
that’ clause modifies the second part of the recital.
[37] “The Arbitral Tribunal concurs with the view that the words ‘as set out
therein’ can only refer to the phrase ‘to amend certain terms of the Agreement’.
Indeed, the amendments to the PSA only appear in the PAA and the PAA does
not contain the agreement to renew and extend the PSA, which is rather included
in the REA. However, the suggestion that the phrase ‘provided that’ could
consequently only refer to the second part of the recital is unsustainable. The
Arbitral Tribunal is not convinced by the ‘logical’ deduction relied upon by
the Joint Venture. The phrase ‘provided that’ indeed refers to the whole phrase
‘the parties agreed to renew and extend the term of the Agreement for a five-year
term to expire in November of Year X+5 and to amend certain terms of the
Agreement’, and so particularly because of the word ‘and’ that evidenced that
the parties agreed to cumulatively extend and amend the terms of the PSA
‘provided that’ the PAA comes into effect in November of Year X.
[38] “The ‘provided that’ did not need to be placed at the beginning of the
sentence in order to apply to the whole phrase. The condition upon which the
extension and the amendments of the PSA were to come into effect therefore
depended on the coming into force of the PAA in November of Year X.
Consequently, on the basis of the recital of the PAA, there is no doubt that
the binding effect of both the REA and PAA was to be simultaneous.
[39] “In order for the PAA to come into effect in November of Year X, the
constitutional procedures had to be exhausted, in accordance with its Art. 26.
This Article indeed states that ‘this Partial Amendment Agreement, signed by
the Ministry and the Contractor, shall be binding on the parties hereto upon the
exhaustion of the constitutional procedures in the State, which will give the
provisions of this Partial Amendment Agreement and its Annexes full force
and effect’. Art. 26 is of much relevancy. First, as Art. 27 of the REA, Art. 26
of the PAA uses the words ‘constitutional procedures’ and it is not disputed in
that case that they refer to the Parliament ratification as it is required by State W
law. Second, the binding effect of the PAA was to be obtained only after the said

ratification by Parliament. Third, the future tense once again emphasizes that
this requirement had not been already met.
[40] “Accordingly, it results from the PAA’s provisions that the PAA would
come inco effect if and when it obtained Parliamentary ratification. Further, the
parties’ agreement to extend and renew and to amend certain terms of the PSA
would be binding under the condition that the PAA came into force in
November of Year X. Consequently, neither the REA nor the PAA could
have a binding effect if Parliament would not give its approval to the PAA
by November of Year X. In the light of the PAA, both the legal force of the
extension and of the amendments were linked and conditional upon the exhaus¬
tion of the constitutional procedures, i.e. including parliamentary ratification.
As already pointed out, the REA also links the agreement to extend the PSA and
the one to amend as it states in its recital that: ‘the Ministry wishes to negotiate
and execute this Renewal and Extension Agreement to renew and extend the
term of the Agreement and to amend certain terms of the Agreement in order to
make such terms consistent with the terms of recent production sharing agree¬
ments executed between the Ministry and third parties’.
[41] “In view of the above, the Arbitral Tribunal is of the opinion that the legal
analysis of both the REA and the PAA - the agreements signed by the parties -
supports the conclusion that the PSA was not extended by the mere approval by
the Council of Ministers (even though this approval was necessary and was all
the more validly given by the Council) as it results from their terms that:
(i) constitutional procedures had to be exhausted in order to have the entire
REA become binding; (ii) constitutional procedures could in the parties’
mind only mean ratification by Parliament, as demonstrated by the previous
drafts of the REA and by the terms of the PAA and ( iii) approval by the Council
of Ministers was solely a first step within the constitutional procedure that did
not make the REA binding as further approbation of the PAA by Parliament
was required in order for the constitutional procedures to be exhausted.
[42] “As it will now be seen, such conclusion is confirmed by the historical
background to the parties’ negotiations.”
2. Parties’ Negotiations
[43] “Despite the fact that the PAA did not receive Parliament ratification, the
Joint Venture alleges, on the basis of the provisions of the REA and because of
Art. Ill (c) of the PSA, that the extension nonetheless acquired a binding effect
on old terms of the PSA. Indeed, as the amended terms of the REA, subject to
the PAA, did not receive approbation by Parliament, the extension, if granted,
could only be on old, unamended terms of the PSA.

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[44] "However, this suggestion is contradicted by the parties’ behavior, dur¬

ing their negotiations, either before December of Year X-2 or after, when the
bifurcation of the agreement was devised and implemented.”
a. Before December of Year X-2
[45] "The negotiations relating to the extension of the PSA began in August of
Year X-4 in State W’s capital city between the CEO of Contractor and the
highest authority of State W. Another meeting followed in State W in
October of Year X-3 in presence, inter alia, of Minister Mr. Z. Respondent
* asserts that ‘the green light’ given by the highest authority for an extension to
!
the Joint Venture was always conditional upon the requirement that any exten¬
sion would be on revised PSA terms. This is not denied by the Joint Venture
which alleges that ‘the highest authority . . . told the CEO of Contractor that
the Joint Venture should work directly with Minister Mr. Z ... on negotiating
the new terms of the extension’. Further, when asked at the hearing when, before
December of Year X-2, State W ever implied that it would be prepared to grant
the Joint Venture an extension on the old, existing terms, the CEO of
Contractor answered ‘State W had never implied that to me. The REA addresses
that question and confirms the extension.’ He even conceded that the amended
PSA should be put at the level of [other] PSAs signed more recently, which
terms naturally differ from the ones of the current PSA.
[46] “Additionally, the fact that the extension would, at that time, be granted
solely on new terms is confirmed by written evidence. First, in a letter from
Deputy Minister to Minister Mr. Z, dated April of Year X-3, it was recalled that
‘the two parties discussed the mechanism for implementing the verbal instruc¬
tions . . . which is summarized hereinafter: '. . . . 4. Amendment of the provi¬
sions of the agreement and its terms and conditions’.
[47] “Further, it was stated, in Meeting notes dated September of Year X-3,
that ‘the Minister continued to say that Contractor has the green light for a PSA
extension under the new economic terms and conditions all the way from the
top’. Minister Mr. Z also reported to his superior its conversations with
the CEO of Contractor. By letter of October of Year X-3, he stated that ‘the
Ministry confirms the following: no extension except by amending the current
Agreement’. At the same time, the Senior Vice President of Contractor stated to
Minister Mr. Z that they were ‘prepared at the meeting to start discussing the
terms of the extension’. It is thus established that the preliminary discussions
regarding the extension of the PSA were contingent upon the introduction of
new terms.
[48] "Subsequent to the issuance of the Extension Committee Resolution that
nominated a State committee to discuss the extension, the Joint Venture and

State W’s representatives met again in November of Year X-3. It results from the
Joint Venture’s position paper of November of Year X-3 that the Joint Venture
was ‘willing to consider certain terms contained in the PSA [and] believe[d] that
using the existing PSA as a starting document, and amending as agreed between
the Ministry and the Contractor [was] proper’. State W therefore repeated that it
was ready ‘to consider an extension of the PSA but only on the basis that the
PSA be amended in all relevant matters to the Ministry’s absolute satisfaction’.
Again, it was clear for both parties that amendments to the PSA were foreseen as
a condition for the extension to be granted. Moreover, State W even specified
that all the amendments proposed by it were to be accepted for that purpose.
[49] “The parties did not discuss whether there should be new terms or not.
Instead, they had divergent views as to the form that the extended and amended
PSA should take. Indeed, State W wanted to draft an entirely new PSA whereas
the Joint Venture suggested that they extend the current PSA with amendments
rather than renegotiate every aspect of the PSA. In any case, new terms had to be
taken into consideration.
[50] “More significantly, at that stage, Minister Mr. Z’s superior already indi¬
cated to Minister Mr. Z that ‘the constitutional procedures require in the first
degree the approval of the Council of Ministers on any text (agreement), there¬
after referring it to the Council of Representatives for its ratification in prepa¬
ration of issuance of the Resolution for approval considering the Agreements
(a law)’. Minister Mr. Z was thus aware, as early as November of Year X-3, that
the State W Constitution would require that a certain procedure be followed.
Minister Mr. Z’s superior did not, even at that time, consider that Art. Ill (c) was
sufficient for the extension to become binding, even on its original terms.
[51] “A letter from Minister Mr. Z to the CEO of Contractor of January of
Year X-2, including 20 items to be changed in the PSA, constituted the basis for
the negotiations. Within that letter, State W was requesting for the first time
25 percent of carried interest to Company C, which further became a subject of
discussions between the parties. Moreover, the Minister stated the following: T
would like to confirm that the Ministry has the desire to enter into negotiations
with you with respect to the possibility of reaching a new agreement for a period
of five years . . . ’, emphasizing once more that new terms had to be agreed upon
in order for the PSA to be extended. Discussions thus continued for a few
months where the parties tried to find an agreement on several points on
which they had opposite views, in particular the 25 percent assignment.
During that period, State W also recalled to the Joint Venture that ‘the
Ministry [was] only prepared to consider the granting of a new concession to
you and [was] not in any way considering an extension of the original PSA
with you’.

,j
[52] “From the beginning of the negotiations, State W thus clearly indicated
that it would grant an extension of the PSA under the condition that the Joint
Venture agreed to the proposed new terms, a fact which the Joint Venture was
perfectly aware of and never disputed. It even provided a draft REA based on the
terms of a more recent concession relating to another area in February of Year
X-2, emphasizing thereby its agreement to most of the new terms proposed by
State W. Moreover, this draft REA specified that the amendments made were to
be consistent with/the terms of recent production sharing agreements’ and that a
law was to be issued expressly in order to ratify this REA, in accordance with
•5. constitutional procedures in the State.
[53] “As emphasized by Respondent, ‘the mere fact that Contractor’s in-
house counsel drafted the agreements in the terms which he did demonstrates
i'-
that the Joint Venture appreciated that a requirement for parliamentary ratifi¬
■if
cation was the appropriate trigger to make the extension binding’.
[54] “Yet, it is more likely that Parliament ratification would not have been
! necessary for an extension on old terms pursuant to Art. Ill (c) of the PSA.
Indeed, both parties agreed that the Ministry had the authority to extend the
PSA on its original terms. However, this REA was never signed since the parties
had not yet found an agreement on every item and particularly on the question
of the assignments. It is solely injuly of Year X-2 that the Joint Venture accepted
the 25 percent carried interest and submitted in that view another draft REA
containing the same provisions as regards the issuance of a law.
[55] "Again, the reference to the issuance of a law demonstrates that the parties
understood that ratification by Parliament was necessary to make the REA (and
more particularly the extension) binding and that no extension on the original
terms was foreseen.
[56] “The parties finally met in September of Year X-2 in order to finalize the
agreement. Even though the State W’s representatives had received written
authorization to initial the agreement, the initialing was cancelled until the
return to State W of Minister Mr. Z who was travelling abroad. However, the
September draft also stated that ‘a law shall be issued expressly ratifying this
Amended and Restated Agreement’. Further, it was added that
‘This Amended and Restated Agreement, signed by the Ministry and the
Contractor, shall be binding on the parties hereto upon issuance of the law
approving this Amended and Restated Agreement according to the
Constitutional procedures in the State which shall give the provisions of
this Amended and Restated Agreement, together with all annexes attached
hereto, full force and effect notwithstanding any contradictory Govern¬
ment enactment.’

[57] “Therefore, until September of Year X-2, every draft of the REA included
new terms upon which the parties had been negotiating and referred to the
issuance of the law in order to make the REA, i.e. the extension and its amend¬
ments, binding. Yet, both parties were ready to sign this Agreement in full
knowledge of its content.
[58] “However, it was established in this arbitration that the actual reason for
not initialing the September version of the REA was State W’s will to include a
new third-party investor, named Company S, to the Area. This is in fact not
disputed by the parties. The idea was that this new partner would take 15 percent
out of the 25 percent working interest in the Area agreed to be assigned to the
Company C (and would in exchange pay a signature bonus), while Company C
would in fact take 10 percent working interest instead of the 25 percent.
[59] “The introduction of this new Company S was discussed at the house of a
prominent State W politician, in October of Year X-2. The Joint Venture indi¬
cates that during the course of this meeting, Mr. K of the competent Ministry
and the prominent State W politician advised it that the extension agreement
would become final and binding upon mere approval by the Council of
Ministers and that the provisions of the draft REA had to be amended accord¬
ingly. In response, State W underlines that the prominent State W politician was
not a member of the negotiating committee and that this specific meeting was
not, as such, part of the negotiations.
[60] “Subsequently to this meeting, Minister Mr. Z stated in a letter to his
superior that ‘the Ministry’s consent for granting the extension was pursuant to
Art. Ill (c) of the effective PSA, which states that “the development period shall
be twenty years from the date of the first commercial discovery, renewable for
five (5) by mutual agreement”, and provided that Contractor and its partners in
the Area accept said stipulations which are set forth hereinafter'.
[61] “In State Ws view, the agreement to extend the PSA was given by the
Ministry on the basis of Art. Ill (c) of the PSA but was also conditional on the
Joint Venture’s agreement of several terms, substantively modified in compar¬
ison to the current PSA, such as the 25 percent carried interests, a new percent¬
age of royalties, the formation of a joint consultative committee, the
introduction of facilities utilization fees etc. . . . New terms such as the assign¬
ments to Company S and Company C or even amended terms could not be
merely agreed by the parties on the basis of Art. Ill (c) as this Article simply
provides that the PSA can be renewed for five years by mutual agreement. Art.
Ill (c) does not contemplate that the parties can, by mutual agreement, insert
new binding terms.
[62] "Further, to support this opinion, one can rely on the Minister of Legal
...
Affairs’advice to its superior that ‘ the approval of the Council of Ministers
as regards the Renewal and Extension represents just one stage of the

constitutional stages [before] it (Council of Ministers) approves the treaties and

agreements prior to submission thereof the Council of Deputies and then to the
highest authority in accordance with the jurisdiction of each of them’.
[63] “New terms thus had to be approved firstly by the Council of Ministers
and subsequently required parliament ratification. Further, it is to note that
Minister Mr. Z explained within its letter that the Ministry gave its consent
to the extension, on condition that new terms would be agreed upon ('provided
that Contractor accepts such conditions’).
[64] “Nonetheless, it is significant that the terms of the draft REA were mod¬
ified subsequently to the foregoing meeting. The October version indeed
included the assignment to Company S and deleted every reference to the issu¬
ance of a law, despite the previous mentioned letter of the Minister of Legal
Affairs indicating the procedure to follow, which included submission of the
REA to Parliament.
In this draft, Art. 27 thus stated that the REA
‘... signed by the Ministry and the Contractor shall be binding on the
parties hereto upon the approval of this Renewal and Extension Agreement
by the State Council of Ministers which shall give the provisions of this
Renewal and Extension Agreement, together with all Annexes attached
hereto, full force and effect. Ministry represents that it has obtained such
approval of the State Council of Ministers on even date with the signing of
this Renewal and Extension Agreement and covenants that there are no
further approvals required by the Government in order to make this
Renewal and Extension Agreement binding on the State. . .. ’
[65] “From this version, it seems that the approval of the REA by the Council
of Ministers was thus sufficient to make it binding as no reference to any
constitutional procedures was made. The reason for deleting the reference to
the issuance of a law is undeniably linked with the introduction of Company S as
new beneficiary of the assignments of the Joint Venture. In any case the draft
REA was initialed and signed by the Joint Venture and Minister Mr. Z but did
not obtain the required final approval by the Council of Ministers.
[66] “In fact, the Council of Ministers issued a First Resolution in Year X-2,
further replaced by a Second Resolution in Year X-2, and approved the exten¬
sion of the PSA ‘by virtue of the stipulation of Art. Ill clause (c) of the Sharing
Production Agreement referred to above and taking into consideration the
amendments stated in this resolution’. The principle of the extension was there¬
fore accepted but subject to certain modifications. Hence, Art. 5 of that
Resolution provided that

‘Amendments of some expressions of item (27) as regards the validity

of the Agreement of Renewal and Extension for the text to become as
under: “this agreement of Renewal and Extension and signed by the Min¬
istry and the Contractor is considered binding on its parties upon com¬
pletion of the constitutional procedures in the State which grant
provisions of this Agreement of Renewal and Extension and its enclosed
addendums full force and effect”.’
[67] “It is consequently inaccurate that this Resolution unconditionally

approved the extension and the 25 percent relinquishment, as asserted by the
Joint Venture. In fact, a clear reference to the completion of constitutional
procedures was required by the First Resolution in order to make the REA
binding.
[68] “Further, it resulted from this Resolution that some of the REA’s terms
were to be submitted to Parliament in the form of a separate document, a PAA.
The Resolution indeed foresaw that the Minister had to ‘determine the items
stated in the Agreement which the Constitution requires their presentation to
the Council of Representatives and preparation of the draft partial amendment
to the Sharing Production Agreement in the Area as regards these items and
submit it to the Council of Representatives in completion of the constitutional
procedures’. According to this Resolution, in order for the constitutional pro¬
cedures to be completed, certain terms were to be ratified by Parliament. Should
these terms not be ratified by Parliament, the constitutional procedures would
not be completed. The terms of the Second Resolution (replacing the First
Resolution) were of similar effect.
[69] “It is thus clear that until the introduction of Company S as a third party,
the parties never foresaw and never agreed that an extension would be granted
on the PSA original terms. New terms were indeed subject of discussions
between the parties for almost two years before they finally reached an agree¬
ment. In the October of Year X-2 version of the draft REA, however, the
reference to the law was deleted, emphasizing that the REA had been approved
by the Council of Ministers, which made it binding. This version was however
not approved by the Council of Ministers as the First and Second Resolutions
specified that constitutional procedures had to be exhausted in order to have a
binding REA and that part of it required Parliament ratification. No extension
on old terms took place, as the extension, was agreed upon taking ‘into consid¬
eration the amendments stated in this resolution’ and which required Parliament
ratification.”

r
II

b. Discussions of December of Year X-2
[70] “In the light of these Resolutions, a PAA and a new REA were prepared.
The new version of the REA (dated December of Year X-2) modified once more
the wording of Art. 27, re-inserting a reference to constitutional procedures, as
recommended by the Council of Ministers within the First and Second
Resolutions. As to the PAA, Art. 26 also referred to constitutional procedures
and linked, within its preamble, the coming into force of the REA to the coming
into force of the PAA by November of Year X, as already pointed out.
[71] “These two agreements were discussed at a meeting held between the
r Contractor’s in-house counsel, for the Joint Venture, and Mr. K of the compe¬
tent Ministry in December of Year X-2.
[72] "The parties have opposite views as to Contractor’s in-house counsel’s
previous knowledge of the PAA. For the Joint Venture, Contractor’s in-house
counsel saw this PAA for the first time at this meeting and was further explained
that only its terms were to be submitted to Parliament. Allegedly, Mr. K of the
competent Ministry would also have added that if Parliament created any
problem with the PAA, the Joint Venture would still ‘have the extension of
the original terms with the 25 percent [assignment]’. On the other hand, State
W considers that Contractor’s in-house counsel had obtained a copy of the First
Resolution before coming to the meeting and agreed to both the amended REA
(containing an explicit reference to the constitutional requirements) and the
PAA, in perfect knowledge of their terms.
[73] "Further, the parties disagree as to the date of signature of both the REA
and PAA. The issue here is that the Joint Venture purports that it had signed the
REA and PAA only after receiving a comfort letter of Minister Mr. Z in
December of Year X-2 whereas State W declares that the agreements were
signed before the issuance of the said letter. In reality, the Joint Venture suggests
that without that letter, it would not have signed both the PAA and REA. In that
view, it also recalls that a draft of the comfort letter was previously prepared but
was subsequently modified, on its request, as it did not provide sufficient clarity.
State W however objects having written this draft letter. As it was not estab¬
lished that this draft letter was really prepared on State W’s side and as this issue
has no actual relevancy to the solution of the dispute, it will not be taken into
consideration by the Arbitral Tribunal.
[74] “Even though it is difficult to determine precisely on which day the
agreements were signed, the Arbitral Tribunal believes that the Joint Venture
expected the comfort letter before signing the REA. It is, in fact, evidenced by an
e-mail of December of Year X-2, whereby [the writer] indicated that 'this
approval is expressly conditioned upon the receipt, at or before such execution,
of the letter from the State W Ministry to the Joint Venture, a draft of which was
i
faxed to us on this date, executed by the Minister’ and by an e-mail of two days
earlier indicating that Contractor’s in-house counsel did not have yet the autho¬
rization to sign the PAA.
[75] “Further, the Arbitral Tribunal is of the view that what really matters is
the content and the context of the comfort letter. This letter indeed provides
that:
‘. . . [W]e would like to inform you that pursuant to the Council of Min¬
isters’second Resolution, the renewal and extension of the Production
Sharing Agreement of the Area for another five-year term has been
approved as set out in the Renewal and Extension Agreement, entered
into between the Ministry and the Joint Venture, Company S and
Company C. In accordance with Council of Ministers’ Resolution referred
to above, the Ministers empowered by virtue of the said Resolution, have
prepared a draft Partial Amendment Agreement of the valid PSA for the
Area, for the Parties’ execution, in relation to the Articles in the Renewal
and Extension Agreement which the Constitution requires to be referred to
the Council of Deputies (Parliament) for finalization of constitutional pro¬
cedures.
Upon ratification of the Partial Amendment Agreement and the issuance
of the law approving the same, the Articles so ratified in the Partial Amend¬
ment Agreement shall become part of and merged into the Renewal and
Extension Agreement, and the ratified Articles shall have full force and
effect the same as the other Articles contained in the Renewal and Exten¬
sion Agreement, and binding on the Parties in their entirety.’
[76] “For the Joint Venture, this letter assured it that the five-year extension
and the assignments would be binding regardless of the PAA’s outcome before
Parliament. On the contrary, State W considers that this letter only provided
what would happen in case Parliament ratified the provisions of the PAA. It
therefore denies that this letter foresaw what the situation would be in case
Parliament rejected the PAA.
[77] “Clearly, this letter is full of ambiguity. The first sentence of this letter
indeed states that the Renewal and Extension of the PSA was approved for
another five year, pursuant to the Council of Ministers’ Second Resolution.
However, as previously explained, the Second Resolution foresaw that the
extension was approved, provided that certain amendments be taken into con¬
sideration, and particularly the constitutional requirements. This seems to be
referred to in the sentence of the first paragraph where it is indicated that a PAA
was prepared containing the terms that needed Parliament approval ‘for final¬
ization of the constitutional procedures’. Thus, constitutional procedures were

---
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si
not yet finalized. But, on the other hand, the first sentence of that paragraph
stresses that the REA was approved ‘as set out in the REA, which refers to the
approval by the Council of Ministers, entered into .. . ’ which seems to indicate
that the extension indeed became binding as the REA effectively entered into
force.
[78] “As to the second paragraph, the Arbitral Tribunal is of the opinion that it
deals rather with consequences of the approval of the PAA rather than with the
consequences of its rejection. It merely states that in case of approval of the
PAA, the PAA will have the same value as the REA and both will be deemed to
form one agreement. Contrary to the Joint Venture’s allegation, this wording
cannot mean that in case Parliament refuses to approve the terms of the PAA, the
extension and the assignments would in any case have a binding effect. This,
even if the phrase * . . . and the ratified Articles shall have full force and effect the
same as the other Articles contained in the REA . . . ’, taken in isolation from the
context could give the impression that those terms of the REA that did not need
ratification by Parliament had already a binding effect.
[79] “In view of the above, the Arbitral Tribunal is of the opinion that this
letter was purposely ambiguous. On the one hand it was conveying the message
that the extension was already binding; on the other, it mentioned the need of
parliamentary approval, without being perfectly clear as to its consequences.
Such a behavior could be explained by the previous refusal of Parliament that
15 percent interest be allocated to a third party in another area. As Respondent
probably tried to avoid a similar situation, it intentionally remained unclear as to
the procedure to follow.”
c. After December of Year X-2
[80] “Subsequently to the respective signature of the PAA and initialing of the
changes of the REA by Contractor’s in-house counsel, a public ceremony was
held in January of Year X-l whereby Minister Mr. 2 formally signed, sealed and
executed the REA, signed the version of the PAA [in the language of State W]
and finally signed the Deeds of Assignment.
[81] “The Deeds of Assignment actually provided that the ‘Ministry extended
the term of the PSA for an additional period of five years commencing in
November of Year X’ and added that ‘this Deed of Assignment shall be binding
hereto as of the date and shall become effective in accordance with the terms and
conditions of the Renewal and Extension Agreement’. The use of the past tense
tends to suggest that the extension did occur. Further, the Joint Venture tinder¬
lines that following the signature of the Deeds, it assigned 10 percent of its
interest to Company C and 15 percent to Company S, in accordance with the
REA that provided that the extension commenced November of Year X.

Additionally, press releases from both sides were issued, announcing that an
agreement to extend the PSA was found. Yet, even if this way of proceeding did
not imply that the extension agreement was finalized, as pointed out by State W,
it, at least, gave such an impression. It is certain that the Joint Venture would not
have proceeded to the assignments if it was not convinced that the extension
would be granted.
[82] “The Arbitral Tribunal is of the view that the parties acted at that time as
if the extension was already binding on the parties, whether it was or not truly
the case.
[83] “Further exchanges of letters comfort this opinion. Firstly, in a letter of
February of Year X-l State W contributed again to the confusion in advising the
Senior Vice President of Contractor that ‘the final constitutional requirements
for the extension are completed [and] the only remaining work is to get the
ratification of Parliament for the partial amendment agreement’. On one
hand it asserts that the constitutional requirements for the extension are com¬
pleted, suggesting thereby that no further ratification is required but on the
other hand, it adds that the PAA still needs ratification, without however spec¬
ifying whether it is linked with the binding effect of the extension.
[84] “In any event, more significantly, when the competent Parliamentary
Committee requested to have more information regarding the terms of the
PAA, Minister Mr. Z responded that ‘non-amendment of these Articles for
the benefit of the State will lead, in the end, to the continuity in applying the
original Articles of the agreement’. Although State W suggests that it solely
intended to convince Parliament to ratify the terms of the PAA, this sentence
states for the first time that, in the hypothesis where the PAA would not be
approved, the extension would apply on old terms. Likewise, in a letter of March
of Year X-l , Minister Mr. Z reiterated this position, stating that: ‘as to extending
the original Agreement, all legal measures have been exhausted and have become
binding for the government because the Production Sharing Agreement ratified
by a law has given the government and the contractor the right to extend for a
period of five years without the need for another measure’.
[85] “The competent Committee of Parliament continued to require more
information on the PAA. Regarding the extension, it however clearly indicated
to Minister Mr. Z in April of Year X-l the following:
‘It also wishes to mention that your letter consisted of explicit indications
through which you have also attempted granting the right to the Ministry in
taking the resolution of extension without the need to refer to the rest of the
constitutional institutions existing in the country, While the Committee
expresses its rejection of such manner which does not conform with what it
ought to prevail amongst the country’s institutions in co-operation,

í
transparency and regard for the competences and authorities, it assures that
the provision of the original agreement make it entirely clear that any
amendment or extension to the period of the agreement is not the right
of the Ministry and that it certainly has to pass through the official
constitutional channels.'
The Competent Committee thus clarified that the agreement by the Ministry to
extend the PSA was insufficient as further constitutional procedures had to be
followed. It indicated that the original PSA did not contemplate that the exten¬
*- sion or any amendment to its terms were exempted to pass through
v constitutional procedures.
[86] “Subsequendy, the PAA was withdrawn by Minister Mr. Z’s superior in
order for the English and State W language versions to be checked. Contractor’s
CEO then wrote to State W’s highest authority indicating that, for the Joint
Venture’s part, the extension was granted and that the only remaining question
was to determine whether the extension was on old terms or new terms.
[87] “By letter of August of Year X-l, Minister Mr. Z however answered that
the REA was to be considered as 'an integral part’ that ‘shall be submitted to
Parliament for completing the proceeding required by the Constitution and
approval’. Minister Mr. Z’s position thus radically changed after the competent
Committee communicated its advice on the question of the binding effect of the
extension. Indeed, whereas in March he was indicating to the Joint Venture that
the extension had become binding and to Parliament that the PSA would be
extended on old terms in case of non-approval of the terms of PAA by
Parliament, he surprisingly stated in August that the REA had to be submitted
to Parliament for approval as they formed an indivisible package. He reiterated
its position in a letter addressed to the CEO of Contractor in October of Year
X-l whereby he explained that ‘the extension is therefore an integral part of the
whole agreement which shall be subject to constitutional and legal procedures’.
Moreover, following the Committee’s advice, he withdrew the PAA from
Parliament and, after advising the Joint Venture, submitted the REA to
Parliament.
[88] “However, he continued to try and persuade the Committee that the
extension had validly been granted by the Ministry. By letter of November
of Year X-l to the competent Committee, he repeated that ‘the government
may extend the term of the agreement on its original form for a period of five
years, on condition only this is the mutual agreement of the two parties
Additionally, Minister Mr. Z indicated to his superior that ‘because the original
agreement was approved by Parliament of that time, both parties do not need to
have the Parliament approval just to extend the agreement as per the original
Articles. In other words, the government can extend the agreement with its
Reprinted fiom the Yearbook Commercial Arbitration 681

original conditions for five years if it is agreed about that with Contractor’ and
added that ‘if the government sees so, it can extend the agreement with its
original format for additional five years without the need to get the parliament
approval because when the parliament approved the original agreement, it gave
both parties the right to extend without the approval of the Parliament about
that . . .
[89] “Yet, towards the Joint Venture, the Ministry asserted that ño extension
was granted on old terms as Parliament ratification was necessary to make the
whole REA binding while explaining to the Committee and the legal authorities
of State W, including Minister Mr. Z’s superior, that the PSA authorized an
extension on old terms and that such extension had been granted regardless of
the Parliament’s decision regarding the new terms. It even advised Minister Mr.
Z’s superior that, in the hypothesis that the Parliament would refuse to approve
the PAA, the Joint Venture could ‘go to arbitration and there is a great possi¬
bility to win the arbitration . . . ’.
[90] “Thus the Ministry adopted an ambiguous and contradictory behavior: in
the first place, it let the Joint Venture believe that the extension was granted by
approval of the Council of Ministers irrespective of the Parliament’s approval of
the PAA terms but subsequently affirmed that no extension was ever granted on
old terms as Parliament ratification of certain terms was necessary to have a
binding REA. At the same time, the Ministry tried to convince the Committee of
the Parliament that the PSA authorized the Ministry to grant the extension and
make it binding independently from further ratification by Parliament.
[91] “Even though Minister Mr. Z pointed out at the hearing that his state¬
ments to Parliament were part of a normal political debate and did not change
the existing legal situation, the Arbitral Tribunal finds that State W’s behavior
since December of Year X-2 was an incentive for the Joint Venture to take for
granted that the PSA would be extended, whatever be the Parliament’s reaction.
As a matter of fact, both parties knew that a negative reaction of Parliament was
likely to occur if it were made aware of the assignment to Company S. Indeed, it
was established at the hearing that Parliament had recently rejected a
Government’s proposed assignment of 15 percent interest to the same third
party in the PSA for another Area and the Ministry feared that the same
would happen to the current assignment, justifying the Council of Ministers’
original decision to submit to Parliament only the PAA, which did not mention
the assignments. Both parties were aware of that situation which explains that
the Joint Venture requested an assurance that the extension was already granted
and binding, notwithstanding Parliament’s future decision. The Ministry pre¬
tended to provide such assurance by its letter of December of Year X-2 and,
although.it was obviously ambiguous, the Joint Venture was content with it.

-c r-3 —-‘îI'TTîîS 777ÿry.c<jzz-.ÿr . T - --. -r-iv--.--,- V. VJ vv-í-r
[92] “However and not surprisingly in the circumstances, it is thus naturalQ

that, after the PAA being provided with the REA at its request, the competent
Committee of the Parliament issued two repons in March of Year X rejecting
the economic terms of both the PAA and REA and recommending the
Government not to renew the PSA. In that repon, the Committee particularly
indicated that ‘the original agreement in the Area was made with the Contractor
at a time when the Ministry had not been established . . . and hence any amend¬
ment of it, either to extend its period of validity or to amend its terms and
conditions must take place in accordance with the constitutional procedures
S’ that include the approval of the Council of Deputies, and the government
and the Ministry cannot consider that the extension of the period of validity
of the agreement does not require that it is referred to the Council of deputies for
approval’.
[93] “This recommendation thus confirmed that a certain procedure was to be
followed to make the whole agreement binding and emphasized that the
Government had failed to do so. This recommendation accordingly [led] to
the issuance by the Council of Ministers of a Decree that approved the recom¬
mendation of Parliament to refuse to renew or extend the agreement and to
amend the initial agreement. Contrary to the Joint Venture’s allegation, the
terms of that Decree stating that it would ‘annul, amend and supersede’ the
Second Resolution [do] not illustrate that the Council had approved the exten¬
sion within the Second Resolution as the Second Resolution never approved
unconditionally the extension.
[94] “The Arbitral Tribunal is of the opinion that the Ministry’s behavior does
not amount to an extension of the PSA whether on old or new terms. In addition
to the terms of the REA and of the PAA that clearly indicated that constitutional
procedures had to be exhausted in order to have a binding agreement, the
Arbitral Tribunal indeed underlines that it did not result from the parties’ nego¬
tiations that they intended to extend the PSA on its original terms. The Joint
Venture knew from the beginning of the negotiations that the PSA had to be
amended in order to be extended and never doubted that amendments had to be
approved by Parliament. During the parties’ negotiations, until the introduction
of Company S, the parties’ correspondence always reflected an understanding
that new terms would be introduced in the REA. In fact, the aim of the negotia¬
tions was to introduce changes to the original agreement and not only the one
relating to the assignments. No evidence was ever produced that the parties had
agreed that the extension and the assignments would be binding irrespective of
the Parliament’s decision regarding the amendments to the PSA as embodied in
the PAA.
[95] “Last, even though the amendments, subject to the PAA, could appear
insignificant in comparison to a 25 percent assignment, as suggested by the Joint

Venture, the parties never agreed that these assignments would be sufficient for
the extension to be granted on old terms.
[96] “At some time the Ministry and, in particular, Minister Mr. Z endea¬
voured to convince everybody, including the Parliament, that failing parliamen¬
tary approval the PSA would be extended on old terms, before saying the
contrary soon after. If such a behavior may be the source of liability - an
issue to be discussed later on - it is not sufficient to amount to an extension
against the very wording of the agreements signed by the parties. As previously
found, the extension as well as the amendments to the PSA, on the basis of the
REA and PAA, clearly required Parliamentary approval in order to become
binding. Thus, even though the Arbitral Tribunal is convinced that the Joint
Venture relied on State W’s assurance that the extension and the assignments did
not need Parliamentary approval, it is also of the opinion, in view of the legal
documents and the factual evidence submitted, that no binding extension legally
entered into force between the parties.”
3. Conclusion
[97] “Consequently, on the basis of the above, the Arbitral Tribunal is satis¬
fied that the PSA between the Joint Venture and State W was not extended and
therefore expired in November of Year X.”
II. DAMAGES CLAIMED BY THE JOINT VENTURE

[98] “The Joint Venture claims full compensatory damages for breach of the
five-years extension of the PSA allegedly granted by the Council of Ministers of
the Government of State W. More specifically, it contends that it is entitled to be
placed in the same position in which it would have been had State W not
breached the five-year extension. Its position is that if State W had recognized
the existence of the extension agreement as it should have done, the Joint
Venture would have produced and sold the product from the Area up to
November of Year X+5. It consequently requests the value of the volume of
product it would have been entitled to during the five-year extension. However,
since the Arbitral Tribunal has found that no extension of the concession took
place, the Joint Venture cannot be entitled to damages for breach of the allegedly
extended concession, as such.
[99] “However, the Joint Venture’s claim for damages, its amount being
unchanged, is advanced on other legal bases than the breach of the allegedly
extended concession. The Joint Venture contends that State W is estopped from
denying that the extension took place because (a) State W s own conduct pre-
eludes it from contending that the extension was not final and binding because

■
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-• •
4\
the Minister Mr. Z’s superior, Minister Mr. Z and members of the Ministry
represented to the Joint Venture’s representatives as well as to third parties
that the PSA had been legally extended, and (b) State W is precluded from
denying the effectiveness of the extension as it did not use its best efforts to
have the PAA ratified. Finally, the Joint Venture also contends that State W is
separately liable to the Joint Venture for breaching its international obligations
in respect of foreigners and their property.
[100] “This last additional legal basis relied upon by the Joint Venture to claim
damages is of no avail to it because it fails on the facts. The alleged breach by
State W of its international obligations in respect of foreigners and their prop¬
erty cannot take place in circumstances where the concession was not extended
beyond November of Year X. If the Joint Venture had no right to an extension, it
was not deprived of any property by State W’s decision not to extend the
concession.
[101] “The two additional legal bases relied upon by the Joint Venture to claim
damages are grounded on the concept of estoppel. The Joint Venture points out
that the doctrine of estoppel is applicable to the instant case as it is included
within the rubric of good faith, contained in the Civil Code of State W.
Consequently, the Joint Venture is of the opinion that it is entitled to compen¬
satory damages on this alternative basis.
[102] “The application of the doctrine of estoppel is not objected to by
Respondent. On the contrary, it asserts that ‘it is common ground between
the parties that general principles of goodwill and good faith apply to the parties’
relationship as a matter of State W law and further that those principles are
sufficiently wide to embrace the equitable doctrine of estoppel’.
[103] “However, Respondent suggests that this doctrine is not necessarily the
most appropriate in the instant case. For instance, it underlines that if ‘the parties
did not agree to a binding extension, the use of estoppel to treat the extension as
if it were binding undermines contractual principles’. The Joint Venture cannot
contend that State W is partially estopped from relying on Art. 27 of the REA so
as to be precluded from denying that there was a binding extension on original
terms. State W explains that the difficulty hereby is for the Joint Venture to
demonstrate that it existed a clear and unequivocal representation that indicated
that the Ministry no longer required exhaustion of the constitutional proce¬
dures. For it, the Joint Venture failed to establish the necessary representation
and the necessary reliance on that representation.
[104] “The Arbitral Tribunal is satisfied that certain aspects of the doctrine
of estoppel may be applicable to this case as part of the general principle
of good faith, while the technicalities of the doctrine as applied in the

common law jurisdictions should be disregarded. Indeed, Art. XXII (j) of the
PSA reads:
'This Agreement for such arbitration shall be given effect and shall be
interpreted and applied in conformity with principles of law common to
State W and the United States and in the absence of such common principle,
then in conformity with the principles of law normally recognized by
civilized nations in general, including those which have been applied by
International Tribunals.’
[105] “The doctrine of estopp el is not a principle of State W law. However, the
broader concept of good faith, which in any case encompasses the doctrine of
estoppel is a principle of law common to State W (State W Civil Code) and the
United States and, thus, is applicable to this case.
[106] "Additionally, Art. XXII (j) of the PSA refers to the ‘principles of law
normally recognized by civilized nations in general’ that may also be relied upon
in the absence of principles common to State W law and US law. Although both
State W law and US law recognize the good faith principle, no evidence has been
brought to the Arbitral Tribunal of an identity of the two laws in the application
of the principle. The Joint Venture has referred to the UNIDROIT Principles
and, while arguing that such principles would be inapplicable as they were not
chosen by the parties, State W points out that State W law is silent as to the
precise content of that duty of good faith and accepts that it is legitimate for the
Arbitral Tribunal to have regard to analogous principles of international law.
[107] “As stressed by Mr. Claude Reymond, the UNIDROIT Principles
‘offer reasonable solutions to respond to the needs of the modern economy in
light of the experience of some of the major legal systems’.2
[108] “In ICC case no. 7110 in 1995,3 the Arbitral Tribunal stated:
‘The reasons why this Tribunal considers the UNIDROIT Principles to be

the central component of the general rules and principles regarding
international contractual obligations and enjoying wide international con¬
sensus, which constitutes the proper law of the Contracts, are manifold:
(1) the UNIDROIT Principles are a restatement of international legal
principles applicable to international commercial contracts made by
a distinguished group of international experts coming from all
2. "Claude Reymond in UNIDROIT Principles for International Commercial Contract: a new lex
mercatoria, ICC Publication no. 490/1, p. 141.”
3. "Bulletin of the ICC International Court of Arbitration, 1999, vol. 10/2, p. 39.”

i
-
prevailing legal systems of the world, without the intervention of
States of government, both circumstances rebounding to the high
quality and neutrality of the product and its ability to reflect the pre¬
sent stage of consensus on international legal rules and principles gov¬
erning international contractual obligations in the world, primarily on
the basis of their fairness and appropriateness for international
commercial transactions falling with their purview;
(2) at the same time, the UNIDROIT Principles are largely inspired [by]
an international uniform-law text already enjoying wide international
recognition and generally considered as reflecting international trade
f.
usages and practices in the field of the international sales of goods,
which has already been ratified by almost 40 countries, namely the
k 1980 Vienna Convention of the International Sale of Goods;
(3) the UNIDROIT Principles are specially adapted to the contracts
i:
being the subject of this arbitration, since they cover both
international sale of goods and supply of services;
(4) the UNIDROIT Principles (see their preamble) have been specifically
conceived to apply to international contracts in instances in which, as
it is the case in these proceedings, it has been found that the parties
have agreed that their transactions shall be governed by general legal
rules and principles; and
(5) rather than vague principles or general guidelines, the UNIDROIT
Principles are mostly constituted by clearly enunciated and specific
rules coherently organised in a systematic way. . . . ’
Thus, this Arbitral Tribunal will refer to the UNIDROIT Principles where
appropriate, where no common principles between State W law and US law
are established.
[109] “The UNIDROIT Principles indeed contain provisions regarding fair¬
ness, such as good faith and inconsistent behavior. On one hand, Art. 1.7 of the
UNIDROIT Principles states that:‘each party must act in accordance with good
faith and fair dealing in international trade’. On the other hand, Art. 1.8 provides
that: ‘a party cannot act inconsistently with an understanding it has caused the
other party to have and upon which that other party reasonably acted in reliance
to its detriment’.
[110] "The Joint Venture alleges that State W is precluded from denying the
effectiveness of the extension on the ground that the PAA did not receive
Parliamentary approval because it failed to use its best efforts to have the
PAA ratified. Doing so, State W would have breached the prohibition to act
inconsistently and violated its good faith duty. The Joint Venture particularly
relies upon the fact that State W would have withdrawn the PAA from

Parliament under a false pretext, preventing it to either ratify or reject the PAA
by a vote. Moreover the Joint Venture is of the opinion that State W from the
beginning should have informed the Parliament of the signature bonus as it
represented a major economic advantage for State W. Last, it stresses that
given the Joint Venture’s acceptance of the conditions imposed for an extension,
the State W Government was, under the PSA, contractually required to grant the
extension. On the other side, State W objects to the Joint Venture’s allegations
and argues that since parliamentary ratification of the PAA was a condition
precedent to the extension, State W could not have agreed or insisted on the
original terms of the PSA.
[Ill] “The Arbitral Tribunal agrees that if it were established that the
Government of State W and, more specifically, the competent Ministry had
failed to make its best efforts to obtain the ratification of the PAA by
Parliament, the Joint Venture would be entitled to damages. Those damages
would not amount to the value of the volume of the product it would have
been entitled to during the five-year extension, claimed by the Joint Venture,
because State W indeed did not have a positive duty to convince Parliament. Its
obligation was not an ‘obligation de résultat’, a concept of the civil law legal
family to which State W law belongs. But the Joint Venture would be entitled to
the value of the chance lost to obtain the extension.
[112] “However, the Arbitral Tribunal finds that the Joint Venture’s position
is factually wrong. The Ministry did submit the PAA to Parliament with a view
to obtaining its approval and ratification. It even wrongly stated that the exten¬
sion was already binding to encourage Parliament to focus on the terms of the
PAA only. Even if the Ministry’s strategy in order to obtain the entering into
force of the extension of the concession is questionable, since it implied that
Parliament would not be informed of the assignments, the Joint Venture accept¬
ed it when accepting the division of the Agreement into a REA and a PAA. As
soon as the Parliament decided that it wanted to see the REA, which included
the assignments, this strategy was bound to fail and it was very unlikely that
Parliament would have ratified the PAA and the extension with the assignment.
The Government did not have any other choice than to submit the REA to
Parliament. In the circumstances, it is difficult to imagine which further effort
the Ministry could have used to obtain the ratification, not only of the PAA but
also of the extension with the assignments.
[113] "Consequently, the Joint Venture cannot obtain compensation on the
ground that State W would be precluded from denying the effectiveness of the
extension as it did not use its best efforts to have the PAA ratified.
[114] "The Joint Venture also contends that State W is precluded from arguing
that the extension was not final and binding because Minister Mr. Z’s superior,
Minister Mr. Z and members of the competent Ministry represented to the Joint

-
Venture’s representatives as well as to third parties that the PSA had been legally
extended. The Joint Venture argues that such behavior would entitle it to the
damages it is claiming, as it should be treated as if the PSA had been extended and
then breached.
[115] "Such a claim finds a basis in the already mentioned Art. 1.8 of the
UNIDROIT Principles which is a general application of the principle of
good faith and fair dealing. Art. 1.8 deals directly with the Joint Venture’s
claim presently discussed. As pointed out in the UNIDROIT official commen¬
tary, Art. 1.8 indeed:
T:
‘imposes a responsibility on a party not to occasion detriment to another
: party by acting inconsistently with an understanding concerning their con¬
tractual relationship which it has caused that other party to have and upon
which that other party has reasonably acted in reliance. The prohibition
contained in this Article can result in the creation of rights and in the loss,
suspension or modification of rights otherwise than by agreement of the
parties. This is because the understanding relied upon may itself be incon¬
sistent with the agreed or actual rights of the parties.’4
[116] “Thus, under this Article, a party is prevented from acting towards the
other party in a manner which would be contrary to its previous behavior
because, in doing so, the other party’s understanding of the relationships, on
which it relied, would be modified. It is a modern formulation of the principle
‘non concedit venire contra factum proprium’, a principle applied in many
international arbitration awards.5 In other words, a party is responsible for
the consequences of its conduct, its representations or even its silence if the
other party suffers damages for having reasonably relied on it.
[117] "As to the facts, the Arbitral Tribunal has already found that the
Ministry adopted an ambiguous and contradictory behavior: in the first place,
it let the Joint Venture believe that the extension was granted by approval of the
Council of Ministers irrespective of the Parliament’s approval of the PAA terms
but subsequently affirmed that no extension was ever granted on old terms as
Parliament ratification of certain terms was necessary to have a binding REA.
But the Arbitral Tribunal has equally found that the Ministry’s behavior does
not amount to an extension of the PSA whether on old or new terms. Moreover,
such ambiguous and contradictory behavior was not the causation of the non¬
extension of the PSA and consequently, the Joint Venture cannot claim
4. “UNIDROIT Principles of International Commercial Contracts, 2004.”

5. “See E. Gaillard,‘L'interdiction de se contredire au détriment d'autrui comme principe général du
droit du commerce international', Revue de l’arbitrage 1985, p. 24 et seq.”

compensation for the damages resulting of the same. The Joint Venture is enti¬
tled only to be compensated for those damages caused by the steps it took, under
the form of actions or omissions, in reliance on the ambiguous and contradictory
behavior of the Ministry.
[118] “In this respect, the Joint Venture alleges that, on the basis of the exten¬
sion which it was taking as granted to it, it completed an exploration program in
Year X-l. The process of exploration started at the beginning of March of Year
X-l, and the expenditures amounted to a certain sum. This is in fact not denied
by State W which recognizes having acquiesced to such performance. It however
adds that it was the Joint Venture’s choice whether to perform the exploration
work immediately or to await Parliament ratification as Art. 6 of the REA,
dealing with the work program, was inserted into the PAA. For it, the REA
allowed the Joint Venture to perform exploratory work prior to the moment
when the REA would become binding and the performance of this program
merely gave effect to the parties’ agreement that such work could be done in
advance of the moment of the binding effect of the extension.
[119] “The Arbitral Tribunal notes that in Art. 6 of the REA, the parties had
agreed that the Joint Venture would undertake an exploration work program no
later than the REA effective date, i.e. November of Year X. However, it is true
that this Article was also included in the PAA and as such needed ratification by
Parliament to become binding. The Joint Venture thus had no obligation to
perform this work before any decision was taken by Parliament, irrespective
of its view as to the extension of the PSA on old terms.
[120] “Yet, the Joint Venture does not contend that it had the obligation to
undertake this work but instead asserts that it did so in good faith, because it
believed that the extension was granted and because it thought that the PAA
would be subsequently ratified.
[121] "The Arbitral Tribunal is convinced that the Ministry behavior as from
December of Year X-2 largely contributed to the Joint Venture’s belief. If that
was the case, it would certainly not have undertook to start the work program.
Actually, if there was no extension, the Joint Venture would have been unable to
achieve a return on its investments as a result of a lack of time.
[122] "This conclusion is confirmed by the fact that the exploration program
began after the signing ceremony where the REA was signed. Further, State W
encouraged and participated in the exploration work program performed by the
Joint Venture, although it was perfectly aware that the Joint Venture was solely
performing this work because it was confident that the extension was to be
granted. The Joint Venture’s letter of October of Year X-3 made it clear that
‘should there be no extension, the Joint Venture would do only routine . . . ex-
pansion/modification projects that were identified as economic projects’ and
that any exploration work program would be tied to the extension . . . ’. It is

Û

solely in December of Year X-l that Minister Mr. Z, in a letter . . . requested that
the Joint Venture stop spending money ‘on operations that (the Joint Venture)
said were conform to the proposed renewed and extended agreement’.
[123] “Thus, even though State W was perfectly aware of the Joint Venture’s
exploration work and of the reasons that motivated the undertaking of such
work, it did nothing to stop it in good time. On the contrary, it took it a
long time before advising the Joint Venture to stop spending money on such
expenditures.
[124] “On the basis of the principles of good faith contained in State W law
and in the light of Art. 1.8 of the UNIDROIT Principles, State W must be held
ï".
responsible for the costs of the exploration work performed by the Joint Venture
í
ahead of the entering into force of the REA and for which it spent a certain sum.
Moreover, this work constituted benefits for State W to which it was not entided
M"
since the concession was not extended.
[125] “Even though State W denies that the Joint Venture has a right to such
reimbursement as the incurring of this expenditure resulted, in its view, from
work voluntarily] performed, it does not object to the principle of reimbursing
the Joint Venture. It stated that ‘on the facts of this case, justice to the Joint
Venture will be served by redressing the detriment it has sustained in performing
exploration work which, if the Tribunal accepts its argument, it would never
have performed had it not been induced to believe that the extension was
binding’. But it argues that ‘if the Tribunal is nonetheless satisfied that a clear
and unequivocal representation was made and relied upon, the relevant reliance
is at most a certain lower sum’.
[126] “The idea of refunding the Joint Venture for its work is therefore not
rejected as such. However, the amount that should be allocated is contested by
State W. It indeed underlines that this expenditure, sustained while the PSA was
still in force, was Cost Product that the parties recovered: if the expense had not
been incurred, there would have been that amount more by way of profit and
thus the Joint Venture’s share, after 50 percent tax, would have been 30 percent,
pursuant to Art. VII of the PSA, namely a loss of a lower sum. This is not denied
by the Joint Venture. In fact, when asked at the hearing whether he had any
comment regarding that calculation, its counsel answered that ‘the exploration
figures would be cost-recovered and I believe that would turn out to be about
30 percent for us and so those numbers sound right. ... I don’t believe there is
any dispute as to that issue.’
[127] “Therefore, on the basis of the principle of good faith contained in State
W law and in the light of Art. 1.8 of the UNIDROIT Principles, the Arbitral
Tribunal will order State W to refund the Joint Venture the lower sum
corresponding to its net exploration costs performed in reliance of State W’s
behavior.

[128] “The Joint Venture has requested that interest be compounded daily-
beginning on the date of the Tribunal’s award and condnuing until the date
of payment. Such request is incompatible with State W law which limits the
rate of interest to 5 percent per year. It has also requested ‘all accrued interest
in full’,
[129] “There are no accrued interests on the amount granted to the Joint
Venture as a refund of its exploration costs since neither the very principle of
this credit nor its amount was established before the issuance of this award.
[130] “Consequently State W will be ordered to pay 5 percent yearly interest
on the above amount, as from the date of this Final Award until the date of full
payment.
[131] “On the basis of the above, the Joint Venture’s claim for damages will be
dismissed, with the exception of an amount above that Respondent will be
ordered to pay to the Joint Venture, plus a 5 percent yearly interest as from
the date of this Award until the date of full payment.”
III. RESPONDENT’S COUNTERCLAIMS
[132] “State W alleges to have suffered losses because of the Joint Venture’s
operation and requests to be compensated for it. Even though it deleted several
of its original Counterclaims during the course of this arbitration, it maintains
those which relate to (a) Environmental Damage, (b) Area Management,
(c) Taxation, (d) Cost Product, (e) State W-ization and (f) Invoices and
Severance Payments.
[133] “For the J oint Venture, all these Counterclaims are to be rejected as they
lack legal or factual basis and are founded on the bad faith of Respondent/’
1. Environmental Damage Counterclaim
[134] “State W alleges that there was contamination in an aquifer because of

the Joint Venture’s operations. . .. State W is of the view that the Joint Venture
breached the standard practice and the State W Environmental Protection Law
applicable by virtue of Art. XVII (a) of the PSA.6 State W alleges that the Joint
Venture should have acted as a good operator and as such should have studied
6. Art. XVII of the PSA provides:

“(a) Contractor shall be bound by the laws of State W and regulations issued for the implementa-
tion thereof, including the regulations for the safe and efficient performance of operations carried
out for the execution of this Agreement and for the conservation of the resources of State W,
provided that no such laws, regulations, modification or interpretation thereof shall be contrary
to or inconsistent with the provisions of this Agreement.

r—
-i
-i
the possible impacts of its operations on the aquifer, which it failed to do.
Moreover, it should have carried out an environmental impact assessment as a
protection safety for the environment at the Area.
[135] “Since in State W’s view ‘the evidence of contamination before the
Tribunal is incomplete’ but liability established, State W requests, as a remedy
of the alleged contamination, the cost of an independent investigation of water
and soil contamination at the Area site, amounting to a certain sum.
Alternatively, it seeks the appointment of an expert to carry out assessment
of water and soil contamination in the Area.
[136] “The Joint Venture is of the opinion that this claim should be dismissed
by the Arbitral Tribunal. It indeed alleges that there was no contamination of the
‘3: aquifer and should it have been the case, the investigations conducted by the
parties ‘would have revealed evidence of [certain contamination] impacts’ and
they did not. Further, it explains that State W only detected traces of contam¬
ination in less than one third of the locations it tested, locations that were in fact
tested with contaminated equipment. Moreover, the Joint Venture underlines
that State W failed to present any evidence of contaminating factor Q above the
level which is safe to drink pursuant to the guidelines established by the [World
Health Organization].
[137] “It adds that, contrary to State W’s allegation, it did act as a prudent
operator taking into consideration the local environment. In that view, it under¬
lines that Minister Mr. Z as well as its own or independent experts conceded that
it acted in accordance with good relevant practice.
[138] “As to the requested remedy, the Joint Venture concludes that State W
failed to provide any justification for it. Additionally, it explains that no expert
should, under any circumstance, be appointed in order to discharge the burden
of proof of a party. Yet, it is what State W is attempting to obtain in these
proceedings. The Joint Venture recalls that prior to the takeover of the Area,
State W’s experts conducted an audit of the Area operations and that, in any case,
the Ministry had, pursuant to the PSA, an obligation to supervise operations in
the Area. State W thus had sufficient time to prove its claim contrary to what it
now suggests.
(b) The interests, rights and obligations of the State, the Minister and Contractor under, and for
the effective term of this Agreement shall be governed by and in accordancewith the provisions of
this Agreement and can only be altered or amended by the mutual agreement of all said con¬
tracting parties.
(c) The Contractor and sub-contractors of Contractor shall be subject to the provisions of this
Agreement which affect them. They shall also be bound by all regulations which are duly issued
by the State from time to time.”

[139] "In any case, the Joint Venture argues that State W’s environmental
counterclaim is barred by limitations, either under the three-year
UNIDROIT or the five-year State W law limitations. In that light, it explains
that the State W Environment Law does not, contrary to State W’s allegation,
disregard limitations periods as it deals only with statutory actions and not with
contractual remedies. It also argues that State W is barred, by the doctrines of
waiver and estoppel, from complaining of the Joint Venture’s practices that it
was aware of and had previously agreed to.
[140] “The Arbitral Tribunal is satisfied that it is sufficiently informed of
Respondent’s claim.The Arbitral Tribunal understands that Respondent blames
the Joint Venture from not taking the necessary precautions, i.e. studying the
possibilities of contamination, in view of the presence of the aquifer underlying
the Area, of which it was undoubtedly aware. Furthermore, the Arbitral
Tribunal understands that State W contends that the presence of contaminating
factor Q in water samples revealed contamination of the groundwater, contam¬
ination caused by the Joint Venture.
[141] “However, Respondent failed to establish, as of today, that the Joint
Venture, by its conduct, caused the foregoing alleged contamination. In fact, no
liability and no damage were ever established by State W. State W failed to bring
any evidence in this regard. It merely made deductions from the results of its
sampling tests but could not, for instance, show with certainty that the presence
of contamination in the aquifer was due to the Joint Venture’s operations and
that it did cause harm. It just concluded from very limited findings of contam¬
inating factor Q in water samples that ‘the obvious inference is that it is due to
related operations, in this case, of the Joint Venture’. However, this was not
supported by any relevant evidence.
[142] “State W stated that ‘no explanation has been given to suggest that the
presence of contaminating factor Q in water samples from the Area could be
anything other than evidence of contamination by the Joint Venture operations’.
Yet, the Arbitral Tribunal shares the view of the Joint Venture regarding the
burden of proof. Indeed, it is up to Respondent to justify its claim and to dem¬
onstrate that contamination of the groundwater actually occurred and that the
Joint Venture is responsible for it. State W had the burden of proving that the
presence of contaminating factor Q showed contamination because of the Joint
Venture’s operations. The Joint Venture on the other hand did not have any
obligation to demonstrate that the presence of contaminating factor Q did not
cause any contamination and that it was not responsible for it. State W thus
failed in its duty to prove its claim.
[143] “Likewise, when questioned at the hearing, Respondent’s expert con¬
ceded that they did not find contaminating factor Q in the monitor location.
This is most surprising as State W based its entire claim on the contamination by

contaminating factor Q. Yet, such a result was not even justified by

Respondent’s expert who merely indicated that ‘the fact that we have not
detected contaminating factor Q does not mean, sir, that there is no contami¬
nation of contaminating factor Q in the area, because the monitoring location
was not really hitting the contamination [level]. ... ’ Moreover, even though
State W indicated that some of its expert’s sampling results exceeded the
maximum permissible contaminating factor Q content for drinking water, it
was unable to prove that the water was undrinkable or contaminated and merely
concluded that ‘these results are indicative of further and more extensive con¬
tamination and establish the need for performing further investigation’.
T-
[144] “It is however true, as alleged by the Joint Venture, that ‘if the massive
impacts to groundwater alleged by State W existed in the Area, then the loca¬
tions would reflect the impact’. Last but not least, it seems that State W also did
not find any trace of contaminating factor Q in the samples that it took from
working [as opposed to monitoring] locations. In view of the above, it is clear
that State W’s allegation of contamination of the aquifer was not proved.
[145] “State W also failed to provide evidence that the Joint Venture’s [manner
of operating] was a source of contamination and that it caused any damage to
State W. Indeed, no evidence of any impact to water and no evidence of losses
(that could have affected that water) was produced to the Arbitral Tribunal.
Further, the Year X report (by State W’s experts) even noted that [the Joint
Venture’s manner of operating] was a normal practice.
[146] “As far as the obligation to act as a good operator is concerned, the
Arbitral Tribunal does not see how the fact that the Joint Venture did not,
allegedly, study the possible impacts of its operations on the aquifer, could be
a source of liability for violating the good relevant practice and breaching State
W’s Environment Protection Law (EPL), when in fact no contamination of the
aquifer has been established.
[147] “State W also relied [on the EPL where it states that any activity that
directly or indirectly damages or pollutes the soil or affects its natural charac¬
teristics and components in such a manner as to affect the soil’s productive
—
capacity shall be prohibited]. Whether that law is or is not applicable a dis¬
puted issue - the reference to it is irrelevant as, once again, no damage to the soil
was proven.
[148] “Furthermore, as emphasized by an expert, who described the require¬
ments of a prudent operator, ‘the important point is not that detailed, docu¬
mented procedures and studies be prepared and undertaken in order to
demonstrate a company environmental awareness but that, in actuality, the
company’s activities do not result in material environmental damage’.
[149] “Hence, no evidence showing that the Joint Venture’s activity resulted
in material environmental damage was brought by Respondent.

[150] “Consequently and on the basis of the specific allegations made and the
materials submitted in these proceedings, the Arbitral Tribunal finds that no
breach of contract by the Joint Venture has been proven by State W and no
liability established. In fact, the claim was not crystallized and its consequences
not identified. This is not even denied by State W which conceded that further
investigation had to be undertaken. The Arbitral Tribunal was not provided
with any element which would justify that the cost of an independent investi¬
gation be paid by the Joint Venture and State W Counterclaim to that effect must
be dismissed. Indeed, Respondent failed to prove its claim within the time that
was allocated to it, which was largely sufficient.
[151] “As regards the alternative remedy that an expert be appointed to assess
the contamination of the groundwater, the Arbitral Tribunal is also of the opin¬
ion that it cannot be granted. In accordance with Art. 20(4) of the ICC Rules and
Art. 6 of the IBA rules, applicable hereby pursuant to the Terms of Reference,
the Arbitral Tribunal is entitled to appoint an expert in order to ascertain dis¬
puted facts. However, such procedure cannot be used to exonerate a party of its
duty to establish the facts on which its claim is based, It may even less be used to
allow a party to investigate a factual situation with a view to making [up] its
mind as to the existence of a possible claim, which is what State W is in reality
asking from the Arbitral Tribunal.
[152] “In the circumstances, the Arbitral Tribunal need not decide whether
State W was precluded under the doctrines of waiver and estoppel to file this
counterclaim or whether it was barred by limitations. In the absence of proof of
contamination of the groundwater, this issue is irrelevant.”
2. Area Management Counterclaim
(....)
[153] “State W concludes that the Joint Venture, in breach of contract, failed to
act as reasonably prudent operator of the Area.
[154] “On the contrary, the Joint Venture states that this Counterclaim should
be dismissed by the Arbitral Tribunal as State W failed to demonstrate that:
(i) the Joint Venture failed to act as a reasonably prudent operator; (ii) that such
imprudence caused a loss in production and (iii) that the lost production resulted
in economic harm to State W.
[155] “The Joint Venture first argues that State W’s experts conceded that they
could not prove the loss of even the smallest quantity of product; their conclu¬
sions were thus based upon mere speculation. Indeed, State W’s experts assumed
greater volumes of production in the Area and also assumed unrealistic product
recovery factors for most parts of the Area in order to increase the theoretical
ulámate recovery of the product. Further, it alleges that State W failed to prove

îi

that the Joint Venture’s management of the Area caused it any loss as its experts
stated that ‘we do not dispute that there is no independent quantum attached’.
Similarly, State W’s allocations between lost and deferred product were corn¬
pletely arbitrary. .. .
[156] "Second, the Joint Venture recalls that State W, prior to November of
Year X at least, always considered that the Joint Venture followed sound
international practices in the relevant industry and always referred to its knowl¬
edge or experience of the field. In its view, State W thus failed to properly apply
the reasonable prudent operator test as its experts: (i) ignored the information
available to the Joint Venture when it was making the allegedly imprudent
's
operations; (ii) disregarded the economics of the operations the Joint Venture
allegedly failed to undertake and (iii) judged the Joint Venture’s development
decisions based, not on what a reasonable operator would have done under the
same conditions, but instead on their own hindsight view of best practices. . . .
I:
[157] “Third, as to [a specific manner of operating] more specifically, the Joint
Venture recalls that it did study the potential use of this manner but refrained
from using it, as any reasonable prudent operator would have done, since it
identified several risks. . . .
(....)
[158] “In view of the above and after having duly considered both parties’
position, the Arbitral Tribunal concludes that Respondent did not sufficiently
justify its Counterclaim. First, Respondent did not define with sufficient clarity
the standards and requirements of a reasonable good operator which in its view
the Joint Venture breached, bearing in mind that such standards and require¬
ments were actually not defined within the PSA. State W instead merely indi¬
cated its expectations as to the method that it would have liked the Joint Venture
to follow in order for the production of product to increase. . . . However, as
pointed out by the Joint Venture, State W applied an optimal standard to the
Joint Venture rather than referred to the manner a prudent operator would have
acted.
[159] "State W indeed indicated that even though it was true that the Joint
Venture obtained much product (initially quickly and cheaply), ‘when presented
with an area with the Area’s exceptional characteristics it is not good enough to
do well if - as here - a reasonable prudent operator would have done better’.
When referring to a reasonable prudent operator, State W had in fact in mind the
best possible operator. Hence, as convincingly emphasized by a Joint Venture's
expert, ‘to be reasonable, an operator need not to be perfect. While with hind¬
sight it may be easy to second guess a decision, the applicable standard requires
an evaluation of the decision within the context of what was known at the time,
judging how a reasonably prudent operator would have acted under the same or
similar circumstances.’

[160] “Thus, State W cannot allege that the Joint Venture breached its obliga¬
tions by not acting as a reasonable prudent operator as it is objecting to the fact
that the Joint Venture did not obtain the best results in terms of product pro¬
duction. Yet, it has not proven that the Joint Venture’s choices were deliberately
wrong and that it breached its obligations to (i) use suitable up-to-date equip¬
ment, machinery and methods; (ii) conduct operations in accordance with good
relevant practices and (iii) take all proper measures to prevent loss or waste of the
product, in accordance with Arts. Ill (b), IV (b) and XI (a) of the PSA. On the
[contrary], the Joint Venture has strongly evidenced that it acted in both parties’
interests and that it took all of its decisions in accordance with what it thought
were good and prudent practice.
[161] “Additionally, State W did not prove that the actions taken by the Joint
Venture presented any risks to the production and failed to evidence that these
actions caused it harm. It indeed failed to demonstrate convincingly that the
Joint Venture’s actions [led] to lost product and, obviously, that [its suggested
improvements] would have prevented such loss. . . .
[162] “Most significantly, State W never indicated to the Joint Venture, during
years, that it was not acting as a good and prudent operator and never suggested a
change in its way of proceeding, except for a certain change. However, when the
Joint Venture proposed such change, State W did not accept the Joint Venture’s
proposal in this regard.
[163] “Consequently, the Arbitral Tribunal finds that it was not demonstrated
by State W that the Joint Venture acted in an imprudent manner.
[164] “Moreover the Arbitral Tribunal is of the opinion that the Joint Venture
very well managed the Area, as attested by the statements and behavior of State
W’s representatives. Indeed, until November of Year X, State W’s representa¬
tives did not blame the Joint Venture for acting imprudently or for being a bad
operator. On the contrary, State W recognized the Joint Venture’s qualities and
its good management for 20 years. For instance, when asked at the hearing if he
were telling the truth when he told Parliament that Contractor followed sound
international practices in the product industry in the management and operation
of the sector, Minister Mr. Z answered ‘yes of course’. Similarly, he conceded
that State W wanted the Joint Venture to continue operating the Area after
November of Year X and even admitted that it had been requestedito explore
another area. In this regard, he pointed out: ‘we thought that Contractor, with
their experience in the country - and as I said, the Joint Venture, Contractor and
Company B. So we want from this side to give them an exploration area, new
exploration area and can give them the extension for five years.’
[165] “So, despite its further attempts to deny Contractor’s qualities at the
hearing, the Arbitral Tribunal finds it difficult to believe that the Ministry would
have intended to extend the concession with the Joint Venture if Contractor had

i

effectively indulged in many defaults and had realized many mistakes during the
20 years that it explored the Area.
[166] "It also results from a Minister Mr. Z’s letter to the competent Committee,
of November of Year X-l, that State W undoubtedly believed that the Joint
Venture managed in a very good manner the Area. He was indeed indicating
that 'the accumulation of experience of the company over 20 years in the man¬
agement and operation of the sector and its accumulation of knowledge of the
geological and technical characteristics of the area that have led to the maintenance
of continuity of production at these high rates . .. and the high rates of the local
workforce and State W-ization and replacement, and the impact it has on the
reduction of operating costs and keeping up with technological developments in
:
the industry are the best indication that Contractor has followed sound
international practices in the product industry in the management and operation
of the sector and preparation of programmes for new developments and their
establishment in a collaborative manner and the growth of rates of production
of these programmes and plans and the low and reasonable costs of production’.
[167] “The words speak for themselves: State W undeniably recognized, as
underlined by the Joint Venture, that ‘The Joint Venture had low operating
costs, made good use of technology, achieved high rates of production, and fol¬
lowed sound international practices in the management and operation of the Area.’
[168] “Therefore, it appears clearly that State W never, until the beginning of
this proceeding, challenged the Joint Venture’s management of the operations
and, on the contrary, plainly recognized that it was a reasonable prudent oper¬
ator, acting in conformity with international practices. As already stressed, the
Ministry’s intent to grant the Joint Venture an extension of the PSA for another !
five years as well as the exploitation of another area supports that view. Indeed,
the Ministry was perfectly aware of the Joint Venture’s area management.
[169] “Consequently this Counterclaim must be dismissed. In the circum¬
stances, the Arbitral Tribunal need not decide whether State W was precluded
under the doctrines of waiver and estoppel to file this counterclaim or whether it
was barred by limitations.”
3. Tax Counterclaim
[170] “State W alleges that the Joint Venture failed to withhold and pay over
tax in respect of its local employees from Year X-15 and its expatriate employees
from Year X-10 on the basis of the PSA provisions. State W relies particularly on
Art. IX (d) that states the following:
‘(1) Contractor shall be subject to the laws in force in State W which impose
taxes measured by income or profits and shall comply with the
j.
requirements of such laws with respect to the filing of returns, the assess¬
ment of tax, and keeping for review by authorised persons of books and
records. ...
(2) Contractor shall pay 50 percent Income Tax imposed by the State. The
State shall not impose a tax upon the income of Contractor at a rate higher
than the tax rate generally imposed upon the income of other companies.’
[171] “In accordance with the terms of the PSA and because of its quality of
employer, the Joint Venture was responsible for making sure that the tax due on
employees’ income was paid and was required to deduct the employee’s tax
liability at source and to account to State W in respect of the same. State W
asserts that even though the Joint Venture had finally accepted that State W
employees as well as its expatriate employees were liable to taxation, the
Joint Venture failed to remedy the non-payment of employee salaries from
Year X-15 to Year X and Contractor’s expatriates from Year X-10 to Year X.
State W adds that the Joint Venture had been aware from the outset of its
obligations to file tax returns and to withhold and pay over tax on its employees
and specifies that no amendments affected the underlying liability to pay income
tax.
[172] “State W thus requests that an award for unpaid taxes calculated by
reference to the Tax Authorities’ estimates be issued by the Arbitral
Tribunal. It recalls that it was allowed to so do on the basis of [two State W
Laws] and relied, for local employees, for Years X-15 to X-7 upon the Tax
Authorities calculations set out in its report issued in mid-Year X-5, and for
Years X-6 to X-l upon the calculations of a Tax Authority employee. As for the
expatriate salaries, no taxes are claimed for Years X-15 to X-ll, but for Year X-
10 to X-l it also relied upon the Tax Authority employee’s calculations. Last, it
contends that the Joint Venture’s liability for Year X is the same or substantially
similar to its outstanding liability in Year X-l. In that light, State W underlines
that the Joint Venture failed to co-operate with both Tax Authority and
independent auditors and failed to submit and/or provide access to documen¬
tation required in order that the Joint Venture’s tax liability for each of the Years
X-15 to X be properly assessed. Alternatively, State W requests that the Joint
Venture’s liability be assessed by an independent auditor or that damages be
allocated by the Arbitral Tribunal.
[173] “The Joint Venture contends that State W’s Tax Counterclaim is a claim
for underpayment of personal income tax by Contractor’s State W employees
from Year X-15 to Year X and by Contractor’s expatriates, third-country
nationals (TNC) and US-based employees from Year X-10 to Year X.
[174] "The Joint Venture explains that, on the basis of the three-year limita¬
tion provided in the UNIDROIT Principles, State W’s employee Counterclaim

’
accruing before Year X-2 are time-barred. It further denies the application of the
seven-year limitation period provided by [a State W Law] as, if State W law did
apply, the time limitation would be five years as provided by [a more recent State
W Law]. It also objects to State W’s reliance on a certain Article of the State W
Civil Code as the Joint Venture was never served with an official court order as
required by this Article.
[175] “The Joint Venture further alleged that State W is barred by waiver and
estoppel from pursuing its employee taxation Counterclaim as it had always
ample access to the information necessary to claim any underpayment of
employee income tax.
[176] “Additionally, its view is that, in any case, for Years X-2 to X, to which
::
no time bar applies, State W failed to prove that the Joint Venture’s employees
í
underpaid their taxes. First, it objects to State W’s reliance on the Statements of
Expenditures as these are records of the Joint Venture’s expenditures and not of
*
Contractor’s income taxes. State W should have calculated any alleged tax
underpayment on the basis of actual employee payroll information as those
were made available to it. State W’s conclusions are thus incorrect. Further,
State W failed to identify in its calculations which respective components of
Contractor’s employees’ income were taxable, excludable or deductible from
taxable income. The Joint Venture also asserts that US-based employees’ income
are not taxable under State W law as they are already subject to taxes by the US
government and adds that even if they were taxable, they would be exempted
from such tax under Arts. IX (d) (2) and IX (f) of the PSA. Last, it alleges that
State W failed to submit any evidence in regard to its claim for Year X taxes,
[177] “The Joint Venture concludes that in any event, if the taxes were con¬
sidered as owed by the Arbitral Tribunal, the damages would have to be reduced
by 70 percent as it would be able to recover the costs of such taxes from Cost
Product. This was in fact conceded by State W’s counsel at the hearing. Further
it objects to Respondent’s request for appointment of an independent expert.
[178] “Pursuant to Art. XXIII of the PSA, State W law is the substantive law
applicable to the PSA. Flowever, the Arbitral Tribunal may also take into con¬
sideration other laws and rules of laws including international law in order to
decide on the parties’ dispute, as provided by Art. XXII (j).
[179] “Yet, even though the Arbitral Tribunal is of the opinion that the
UNIDROIT Principles may be applied in the instant case, this cannot be the
case when the applicable law, hereby State W law, clearly establishes specific
rules. Then, even though the State W Law does not contain specific provision
regarding limitation, a five-year limitation period is contemplated by another
State W Law. State W specified in its Post-Hearing Brief that ‘although its
application is disputed and State W need not to rely upon it, it may be that
the more favorable seven-year statutory limitation period applies’.

T
[180] “However, the Arbitral Tribunal is of the opinion that the applicability
of this seven-year limitation, provided in a State W Law, has not been convinc¬
ingly demonstrated. This is the same for the applicability of a certain Article of
the State W Civil Code, referred to in Respondent’s Post-Hearing Brief. The
time limitation applicable is thus of five year, in accordance with State W law.
[181] “As provided by a certain State W Law, the limitation begins to run from
‘the date of maturity’. However, this Law does not give further specification to
the meaning of the terms ‘date of maturity’.
[182] “For Respondent, this means that time limitation cannot start to run
until the damage claimed for has occurred and can be proved. Hence, for it, the
Joint Venture’s outstanding tax liability for Years X-15 to X-7 could not be
barred as the Tax Authority was not able to assess the liability before February
of Year X-4. It is however surprising that State W did not assess such liability
before that time. Likewise it argues that for Years X-6 to X-3, it was again the
subject of an audit and in particular that a report was solely issued in mid-March
of Year X-4 for Year X-6, preventing it from establishing liability previously.
Thus time could not have started to run until that date which prevents this claim
from being time-barred.
[183] “These arguments are unsustainable. Respondent failed to demonstrate
that it was unable to establish liability before the alleged date and that such
impossibility was caused by the Joint Venture’s behavior. On the contrary,
the Joint Venture submitted in due time the tax statements as evidenced, for
instance, by a letter addressed to it of December of Year X-8 whereby the
Taxation Authority advised Contractor that it ‘thankfully submitted the Tax
Declaration for the year ending 31 December of Year X-9’ and that ‘the
Authority did not accept the declaration submitted and .. . decided to amend
it’. Even though it did not approve it, the Tax Authority was in possession of the
necessary information for Year X-9 as soon as December of Year X-8. Due to its
dissatisfaction and as soon as December of Year X-8, it decided to conduct
accounting of Contractor for the taxation on income. Therefore, State W failed
to convincingly demonstrate its reasons for not establishing liability before Year
X-4 as it was aware of some difficulties as soon as Year X-8.
[184] “In any event, the Arbitral Tribunal underlines that no evidence has
been brought to explain that the meaning of the terms ‘date of maturity’ indeed
implies that liability had to be proven, as alleged by Respondent. The Joint
Venture remained silent on this question.
[185] “Hence, the Arbitral Tribunal is of the view that, in accordance with
Art. XXII (j), because of the lack of clarity of State W law as regard the moment
time limitation can start to run, the UNIDROIT Principles should apply sub¬
sidiarily to that particular question. Art. 10.2 of the UNIDROIT Principles
provides that the limitation will start to run ‘on the day after the day the obligee

i

knows or ought to know the facts as a result of which the obligee’s right can be
exercised’, a solution that Respondent accepts to have some similarities to State
Wlaw.
[186] “This taxation issue was discussed between the parties at a very early
stage as reflected by a letter of the J oint Venture of May of Year X-l 8 in which it
was indicated that ‘regarding withholding of State W income taxes on the sal¬
aries of State W citizens, it is agreed that such withholding will begin in April of
Year X-l 8’. Moreover, it seems, from a testimony, that the Joint Venture sent its
payroll registers for its US expatriates and for its Third Country Nationals
R: employees to State W on an annual basis and that State W had access to the
Joint Venture’s payroll information for Contractor’s individual State W
employees. It was thus aware of the status of the taxation income for each
year. Further, every report made by the Ministry’s auditors and communicated
"I'
to State W suggested that the Joint Venture had not withheld enough from the
salaries of its employees. Consequently, in accordance with the limitation of five
years of State W law, combined with the UNIDROIT Principles on the starting
point of time limitation, the Arbitral Tribunal finds that every tax claim before
Year X-4 is time-barred and as such must be dismissed.
[187] “As for the remaining claims, i.e. for Years X-3 to X, State W solely
claimed an underpayment of personal income taxes. Yet, the Arbitral Tribunal is
of the view that Respondent did not efficiently justify that the Joint Venture’s
employees underpaid their income taxes. Ño sufficient explanation as to the
calculations was indeed provided by State W and those calculations were appar¬
ently made on mere extrapolations.
[188] “Further, as convincingly shown by the Joint Venture, State W failed to
calculate deductions and exclusions from taxable income as provided by a
certain State W Law [which, for] instance, indeed excludes expenses paid by
the Joint Venture to house its expatriates and TCN working in State W if this
housing represents ‘the residential quarters provided to the taxpayer to enable
him to perform his work’. Yet, State W claims that these employees owed taxes
on the basis of housing for Years X-3 and X-l and so without providing any
proof as to the reasons this exclusion would not apply.
[189] “Last, the Joint Venture’s US-based employees were not subject to
income tax under State W law. The Law mentioned above indeed states that
[tax shall be imposed on the income of residents and non-residents that is gen¬
erated or collected in State W from salaries and wages as well as allowances and
bonuses paid for the performance of any job]. Yet, State W merely indicates that
the only question is whether their income is collected or generated in State W
and concludes that ‘given such income ultimately derives from the Area opera¬
tions, the Tax Authority takes the view that such income is generated in State W

and accordingly taxable by law’. State W thus reached this conclusion on a mere
assumption but did not provide any evidence to that effect.
[190] “In view of the above, the Arbitral Tribunal thus dismisses State W’s
taxation counterclaim for Years X-3 to X. The entire taxation Counterclaim is
therefore dismissed by the Arbitral Tribunal.
[191] “The Arbitral Tribunal also rejects Respondent’s alternative request for
an auditor since, as already explained, it was up to Respondent to provide
evidence of its damages. Moreover, an expert should not be appointed in
order to help a party establish its claim, as it would be the case hereby.”
4. Cost Product Counterclaim
[192] “State W alleges that pursuant to Art. VII of the PSA, the Joint Venture
was entitled to recover certain expenditures sustained when exploring and devel¬
oping the Area. The Joint Venture was to deduct from the product produced
sufficient product to meet the properly recoverable expenditure, described as
‘Cost Product’. The remaining product was subsequently shared between the
parties.
[193] “State W further explains that as to the reconciliation of the estimated
prices with the actual prices for valuing the product taken as Cost Product, the
parties reached an agreement which results in a balance in favor of the Joint
Venture. . . .
[194] “They are still in dispute as to the alleged overstatement by the Joint
Venture of the recoverable expenditures. State W indicates that in the absence of
clear indications from the PSA, the practice between the parties was that the
Joint Venture presented within the Statements of Expenditures (SOEs) the
expenses it claimed to be entitled to recover and that subsequently State W’s
accountants review them in order to determine whether the expenditures
claimed were properly recoverable under the PSA. Yet, even though the parties
were supposed to reach an agreement upon completion of the audit by State W
external auditors, they only managed to agree on Years X-24 to X-16, leaving the
other years unresolved. As such, State W requests as a primary relief that the
detail of this counterclaim be addressed by reference to an independent auditor
and that, alternatively, it be allocated damages.
[195] “State W produced a line-by-line submissions regarding the Years X-2,
X-l and X accounts. It specifies that contrary to the Joint Venture’s assertion, no
credit note had already been given for certain lines. It adds that the others for
which the Joint Venture intends to give credit are of no relevancy since the PSA
had not been extended.
[196] “State W asserts that none of its counterclaims are time-barred in the
light of the amicable settlement that the parties were trying to reach on the

remaining issues. It was only in Year X-l to X, i.e. when the parties' settlement
negotiations had broken down, that it knew the facts upon which its rights to sue
could be exercised. Similarly it denies that waiver or estoppel could be opposed
to this Counterclaim as the Joint Venture failed to demonstrate that State W
knowingly gave up its right or intentionally acted inconsistendy with such right.
[197] “As to the burden of proving that the expenditures were or were not
recoverable, State W asserts that it is for the Joint Venture to show that it has an
entidement to make the deduction. As to the lack of documentation, State W
asserts that it had access only to the material that was located in State W at that
time, which was not necessarily sufficient. In any event, it argues that what is of
more relevancy is that there exists no documentation before the Arbitral
Tribunal to support the deductions made by the Joint Venture.
i'-;
[198] “Last, State W asserts that it is entitled to object to charges that are
unreasonable, unnecessary or excessive, as provided by Art. IV (5) (f) of the PSA.
[199] “The Joint Venture recalls thatunder Art. VII (a) of the PSA, its rights to
recover cost are described in a very broad manner. Further, it recalls the obliga¬
tions of both parties under Art. IV (f). It particularly underlines that in case State
W disagreed with any part of the Joint Venture’s statements, within three
months, State W was to provide the Joint Venture with written objections
from it and the parties were to try to reach an amicable solution. It however
emphasizes that nothing in the PSA states that the Joint Venture must accept
State W’s objections and reverse Cost Product charges and that no contractual
provision provides for a third-party resolution in case no agreement is found.
Thus, it considers that State W’s sole recourse in such a case was to timely file an
arbitration claim.
[200] “The Joint Venture then asserts that State W’s Cost Product
Counterclaims for Years X-15 to X-4 are time-barred and that so is the case
for the Years X-3 to X claims because of the contractual limitations period
contained in Art. IV (f). In that light, it indicates that the requisite written
objections for Years X-3 to X-2 were not provided until well after the arbitra¬
tion was under way and that the objections to the Year X-3 SOE were only
provided in May of Year X+2. Similarly, the objections to the SOEs for Years
X-2 and X-l were only provided in November of Year X-j-1 and only a draft
audit report of May of Year X+2 was provided as objections to the Year X SOE.
Thus, State W failed to file written objections to the Joint Venture within the
three months of receipt of each respective SOE. For all these reasons, it requests
that every Counterclaim for Cost Product from Years X-15 to X be dismissed.
[201] “However, the Joint Venture argues that in the hypothesis where the
Arbitral Tribunal would apply the five-year limitation, State W’s claims for
Years X-15 to X-6 would still be barred as well as those for Years X-3 to X
and that only the Years X-5 to X-4 claims would remain. It further alleges that

they are unsustainable on the ground that State W failed to prove that the Joint
Venture took deductions from Cost Product that were not allowed by the PSA.
[202] “The Joint Venture also alleges that State W has waived its Cost Product
Counterclaim and is estopped from pursuing it. It first explains that State W’s
complaints arose many years ago, as asserted by a Ministry’s Audit Manager, but
that despite few invitations to review the documentation supporting the Joint
Venture’s responses, it refused to do so and solely presented this claim after the
initiation of this arbitration. Then, the Joint Venture was evicted from the Area
and had no longer access to its supporting documentation. State W is thus pre¬
cluded from bringing a claim based on insufficient documentation as it itself
chose not to review it in due time. The onus to review the available documen¬
tation was on State W and its failure to do so is fatal for its Counterclaim. In fact,
the Joint Venture alleges that State W’s objections to its expenditures is not a
substantive claim that the expenditures were not for Area operations but a
technical objection that sufficient document was not provided. For all these
reasons, the Joint Venture requests that this Counterclaim be dismissed by
the Arbitral Tribunal. As to the appointment of an independent expert to
audit the disputed items, the Joint Venture considers that it is an attempt to
bifurcate the proceedings and that, in any event, the Cost Product is a matter of
contractual interpretation for the Arbitral Tribunal and not an ‘accounting
exercise’.
[203] “The provisions of the PSA clearly describe the procedure to follow in
regard to the recovery of the Contractor’s expenditures. Indeed, it results from
Art. IV (f) that:
‘The Contractor shall supply the Minister within ninety days from the end
of each quarter-year a Statement of Expenditure reflecting all expenditure
incurred and credits received by Contractor during such quarter-year and a
summary of cumulative expenditure since the Effective Date and, after
Initial Commercial Production, a Statement of Cost Recovery, both as
detailed in Annex C, Contractor’s records and necessary supporting docu¬
ments in respect of such quarter -year shall be available for inspection by the
Minister or his authorized representative any time during regular working
hours for three months from the date of receiving such statements.
Within the three months from the date of receiving such statement, the
Minister shall advise Contractor in writing if it considers:
(i) that the recording of costs is not correct;
(ii) that the costs of goods or services are not in line with the international
market prices for goods or services of similar quality supplied on similar
terms prevailing at the time such goods or services were supplied;

'-'-7T-7.7~.uI3I
SJ

(iii) that the conditions of the materials furnished by Contractor do not
tally with their prices, or
(iv) that the costs incurred are not reasonably required for operations.
Contractor shall confer with the Minister in connection with the problems
thus presented and the parties shall attempt to reach a settlement which is
mutually satisfactory. If within the time limit of the three-month period
provided for in this paragraph the Minister has not advised Contractor of its
objection to any Statement, such Statement shall be considered as
approved.’
a [204] “Pursuant to this Article, the Arbitral Tribunal finds that, on one hand,
the Joint Venture had the obligations (i) to establish Statements of Expenditures
i:
and (ii) to make available its records and necessary supporting documents for
inspection by the Minister for a period of three months and that, on the other
hand, State W had an obligation to indicate to the Joint Venture, in writing and
within that period of three months, if it had any objection and if it considered,
for instance, that the ‘costs incurred were not reasonably required’.
[205] "Contrary to State W’s assertion, it was not upon completion of the
audit by State W external auditors that the parties had to agree what expenses
were properly chargeable to the PSA. State W indeed did not have a contractual
right to decide whether or not an expenditure was rightly recovered but had a
right to indicate to the Contractor, within the three months time period from
receipt of the statement, that it considered the costs ‘not reasonably required for
the operations’. Respondent thus did not have a systematic right to decide
whether it accepted or not the expense but only the right to review them and
object within three months. Should it make an objection the parties had to try
and reach an amicable settlement. If such amicable settlement was not found, the
only alternative was arbitration. On the contrary, if no objection was made
during that three month period, the statement was to be considered approved.
[206] “Further, the Arbitral Tribunal wishes to emphasize that any contradic¬
tion between this Art. IV (f) of the PSA and Art. I (3) of Annex C (Accounting
Procedure) is resolved by Art. I (5) of the same Annex C which states that ‘in the
event of any inconsistency or conflict between the provisions of this Accounting
Procedure and the provisions of the Agreement, the provisions of the
Agreement shall prevail’. Hence, it is clear that Art. IV (f) of the PSA is the
relevant Article for determining the procedure to follow.
[207] “The Joint Venture did not fail to submit any of the SOEs for each
calendar year. Second, contrary to State W’s assertions, no evidence was brought
that State W submitted written objections to the statements presented by the
Joint Venture within the time allocated to it, and so particularly for Years X-3
through X. Further, the evidence on which State W relies to assert that ‘both
|.
parties were (in April of Year X-3 and subsequently) actively seeking to resolve
all outstanding audit issues’ does not prove that State W objected to the recovery
of certain expenditures that it would have considered ‘not reasonably required
to operations’.
[208] “As underlined by the Joint Venture, State W complained about Cost
Product since the beginning of the PSA. The procedure in order to recover
expenditures was thus well known by the parties. Indeed, the practice remained
the same since Year X-24. Yet, the foregoing, the Cost Product Counterclaim
was only brought by Respondent after the initiating of the instant arbitration. It
consequently appears that, by introducing this claim at a late stage whereas it
was aware of the proceeding and had complaints to make since Year X-24, State
W waived its right to introduce such a Counterclaim.
[209] “Moreover, State W could not validly assert, as it did in this instant
procedure, that the Joint Venture failed to produce the relevant documentation
as no evidence was brought to such an effect. In fact, State W even conceded that
its accountants were ‘given access to the available material located in State W at
that time’. Furthermore, letters transmitting the Joint Venture’s responses to the
Audit Reports for Years X-8 to X-5 by State W external auditors reveal that the
Joint Venture actually proposed to [State W] to review the documentation in
order to clarify the issues. It however appears that State W did not came to
inspect these supporting documents and thus failed to try to find an amicable
settlement with the Joint Venture, in accordance with Art. IV (f) of the PSA.
Again, State W has waived its right to assert a claim on the basis of a present lack
of documentation.
[210] “In any case, the Arbitral Tribunal is of the view that the burden of
proving that certain expenditures were not cost-recoverable fell upon State
W, which failed to provide adequate explanation to its Counterclaim. Indeed,
the PSA does not contemplate for the Joint Venture to justify its Statements of
Expenditures but instead gives a right to State W to object to some of them if
considered unreasonable or improper. In such a case, it is for the objecting party
to demonstrate that its position is justified and thus to prove that the expenditure
was not properly recovered on the basis of one of the grounds set forth in Art. IV
(f). Yet, as asserted by State W itself, only a line-by-line submission in relation to
the Years X-2, X-l and X accounts was provided and ‘the time-consuming
nature of the task has meant that State W has not had time to do a similar
task in relation to each year’.
[211] “State W thus did provide a line-by-line submission but for only three
years and failed to do so for each year for which it claims that expenditures were
not recoverable. Additionally, it did not provide any valid and detailed expla¬
nation to its submission.

I

[212] “As underlined by the Joint Venture, ‘State W has not submitted any
expert evidence, for example that the Joint Venture’s expenditures were not in
line with international market prices, or that the Joint Venture’s expenditures
were different from any customary practices in the product industry. Similarly,
State W has not submitted any analysis of the language of the PSA, or any
argument as to how the Joint Venture’s deductions did not comport with that
language.’
[213] “State W merely indicated that it objected to certain expenditures
without sufficiently justifying these objections. It even tried to reverse the
burden of proof by stating that ‘the Joint Venture has not proved that this
expenditure was properly payable to the contractor, and so cannot establish
that the expenditure is recoverable’. Its Counterclaim thus lacks justification.
[214] “Accordingly and for all the above reasons, State W’s Counterclaim on
■i Cost Product recovery is dismissed. Further, the Arbitral Tribunal rejects State
W’s request for an accounting as, as previously explained, an expert should not
be appointed in order to help a party establish its claim, as it would be the case
hereby.
[215] “However, on the basis of the parties’ agreement, the Joint Venture
should recover [a certain sum] as a result of the Cost Product valuation.
[216] “The Joint Venture has requested compounded daily interest on such
amount, beginning on the date of the Tribunal’s Final Award and continuing
until the date of payment. Such request is incompatible with State W law which
limits the rate of interest to 5 percent per year. It has also requested ‘all accrued
interest in full’.
[217] “The parties’ agreement to the existence of the Joint Venture’s credit was
communicated to the Arbitral Tribunal by a letter of Respondent’s counsel of
October of Year X+2 with no indication of the actual date of the parties’ agree¬
ment. Consequently, the Arbitral Tribunal is satisfied that interest at the same
yearly rate of 5 percent started to apply as from that date.
[218] “Consequently State W will be ordered to pay a 5 percent yearly interest
on the above amount, as from October of Year X+2 until the date of full
payment.”
J. State W-ization Counterclaim
[219] “State W explains that the aim of State W-ization was that, throughout
the course of the PSA, State W nationals would be trained in order to be able to i
obtain technical and skilled positions. If this was the case, State W could, upon
expiration of the PSA, exploit the production of the Area. Pursuant to Arts.
XXV and XI (f) of the PSA, the Joint Venture was to provide on-the-job training
for State W nationals and a joint committee was to be formed in order to
I
establish training programs for State W personnel. After formation of the Joint
Consultative Committee (JCC) in Year X-18, the long term objective was
however modified: expatriates were to be replaced by qualified State W
personnel.
[220] “State W however alleges that since the Joint Venture’s first plans and
efforts were unsatisfactory, a ‘State W-ization Committee’ was formed to estab¬
lish, inter alia, a counterpart system to further State W-ization. In Year X-8, the
Counterpart Programme was thus established, which, in State W’s mind, con¬
stituted a binding contract for the parties. In that view, it argues that its agree¬
ment to extend the PSA for five year was conditional upon the conclusion of,
and adherence to, an agreed replacement Programme. For it, it is undisputable
that:
‘in October of Year X-8, both parties contemplated that, upon expiration of
the agreed transition periods:
(i) all named State W nationals would be suitably trained to assume the
position of their expatriate counterparts without in any way jeopar¬
dizing the safety of the Area operations; and
(ii) all replaced expatriate counterparts would depart State W forthwith,
thereby decreasing the proportion of Cost Product, increasing the
proportion of share product for distribution in accordance with the
PSA and effecting the requisite transfer of skills and knowledge to
enable State W to assume operations on Year X’.
[221] “State W adds that the Joint Venture’s obligations under the PSA were
linked to the effective fulfillment of the Counterpart Programme as the replace¬
ment process could only be achieved through the effective training of the Joint
Venture’s State W employees. Accordingly, for it, the fact that the Joint Venture
failed to implement the Counterpart Programme implies that it breached its
training obligations under the PSA. It argues in that light that (i) instead of
making the position for which the State W nationals had been trained available
to them, it continued to assign the State W Counterparts to new training; (ii) it
failed to train sufficient State W nationals to replace those who had left; (iii) it
mostly replaced low level jobs and (iv) it failed to secure the removal of the
expatriate employees when permitting the State W nationals to occupy the
positions. State W thus concludes that the Joint Venture failed to respect
the principles underlying the Counterpart Programme and the policy of State
W-ization to which it had agreed. It further objects to the Joint Venture’s
explanations for not achieving State W-ization.

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[222] “State W thus requests to be allowed the difference between the salaries
paid to expatriates and the salaries which could have been paid to State W
nationals had the 95 positions been made available to State W nationals. As it
accepts that the level of Cost Product would have been reduced if the Joint
Venture had complied with its obligations, it states that its damages amount
to [a certain sum], net of tax.
[223] "Lastly, State W denies being time barred or/and estopped from bring¬
ing this Counterclaim.
[224] “On the other hand, the Joint Venture alleges that the Counterpart
Programme did not constitute a binding agreement but solely represented a
3' '
plan with targets and aspirations. The Joint Venture even relies on a State
W’s witness’s testimony to support its view and underlines that it had no con¬
tractual obligation to State W-ize. It adds that it did not commit itself to replace,
within a certain time frame, specific job positions with State W nationals as it
would have been senseless in light of the factors affecting State W-ization that
were, above all, not within its control. For instance, it states that a number of
positions that were targeted for State W nationals on the Counterpart
Programme spreadsheet had no State W national designated for the training
or that most of the State W nationals had not begun their training at the time
the list was drawn up. Further, it argues that State W recognized that State W-
ization of the Area was impeded by unavoidable factors.
[225] “The Joint Venture asserts that it had, under Art. XXV of the PSA, one
contractual obligation Le. ‘to provide on-the-job training for [certain State W
professionals] . . . but only to the extent commensurate with the efficient per¬
formance of .. . Operations’. It argues that it was entitled to choose its employ¬
ees on the basis of what was necessary to carry out the operations in accordance
with good practices but not on the basis of their nationality. Yet, it is of the view
that it did satisfy the foregoing obligation. In any case, the Joint Venture under¬
lines that State W failed to bring any evidence as to why, for each of the positions
for which it claimed damages, the Joint Venture erred when it determined that
there was no State W national qualified to take over the position. Yet, the two
witnesses presented by State W support the success of the Joint Venture’s State
W-ization.
[226] “The Joint Venture further alleges that, despite the fact that it did not
have any contractual obligation to that effect, its record of State W-ization was
very positive, as acknowledged by State W’s witnesses’ statements and the
Minister. It also states that when it was removed from the Area in Year X,
the Joint Venture had State W-ized 95 percent of its Area workforce and that I
the vast majority of the Joint Venture’s employees, at every level, were State W
nationals. It states that it is actually evidenced by the fact that, in November of
Year X, State W had a sufficiently trained local workforce to operate the Area

independently through its state-owned operating company, called Company C.

As such, the Joint Venture requests that this Counterclaim be dismissed.
[227] “It also argues that in any case State W’s Counterclaim for State
W-zation is time-barred, either under the three-year limitation of the
UNIDROIT Principles or the five-year limitation under State W law, as
State W is alleging that the Joint Venture breached the Counterpart
Programme as early as Year X-6 and though waited until February of Year
X+l to present this claim. Last, it argues that State W has failed to prove its
damages and provide justification for its calculations.
[228] "The Arbitral Tribunal has to examine the contractual provisions of the
PSA and the Counterpart Programme in order to determine whether there was
any breach of its obligations by the Joint Venture. Within the PSA, Art. XI (f)
indeed provides that a joint committee was to be formed in order, inter alia, to
‘establish training programs for State W personnel’. Further, pursuant to Art.
XXV of the PSA, the Contractor has the obligation ‘to the extent commensurate
with the efficient performance of the , . . Operations, to provide on-the-job
training for [certain State W professionals]
[229] “Therefore, under the PSA, there were only two obligations: to provide
on-the-job training to State W nationals and to create a joint committee to
establish these training programs. Both these obligations seem to have been
respected. Indeed, the JCC was formed in Year X-18, as recalled by
Respondent, and the Joint Venture did in fact provide training program, as
shown by the Joint Venture’s annual activity reports from Year X-7 to Year
X, where was indicated the training program for each year and the number of
man-days of training provided.
[230] “The obligations under the PSA were thus fulfilled, although such obli¬
gations were judged insufficient by Respondent. Moreover, even though State
W asserts that the efforts of State W-ization were unsatisfactory, the Joint
Venture produced since Year X-13 State W-ization plans, and no convincing
evidence was brought that they were challenged at the time by State W.
[231] “As to the Counterpart Programme, it has not been convincingly dem¬
onstrated by Respondent that it constituted a binding agreement. The Arbitral
Tribunal is in fact satisfied of the contrary. Indeed, what allegedly represents a
binding agreement is a mere report by the Committee to which is attached a list
of counterpart. This represents a mere indication of when replacement of expa¬
triate by nationals could eventually occur, as it would have represented an
advantage for both parties. However, there is not a single indication that the
parties considered this Programme binding and no reference to the Joint
Venture’s obligations to State W-ize is made. As conceded by State W, the
Counterpart Programme was built in a ‘certain degree of flexibility’ and ‘its

terms could not be strictly enforced’. None of these characteristics are indicative
of a binding contract but rather of a long-term objective.
[232] "In fact, the Joint Venture had indeed indicated that it was willing to
State W-ize its workforce, even though it did not intend to be bound by this
goal, and acted accordingly. The fact that it did not, allegedly, State W-ize
correctly is irrelevant as it was not bound to do so by a contractual obligation.
[233] “The Joint Venture was not legally obligated to replace expatriate
employees, whether junior or senior, with State W nationals but accepted to
try ‘to co-operate and to put the plan into effect insofar as they could reasonably
u- do so’. Moreover, the decision as to when exactly a State W national was ready to
take a position held by an expatriate, was to be made by the Joint Venture as
Contractor of the Area. As stated in the meeting of August of Year X-8 ‘it will be
Contractor’s decision whether the candidate is ready to take on the full respon¬
sibility of the position. This period is dependent upon the advancement of the
candidate and can be shortened or lengthened based upon the progress of
the counterpart and upon Contractor’s decision.’ This supports the view that
the Counterpart Programme was a mere guide that simply gave indicative time
frame for State W-ization but that could not be final since State W-ization
depended on the advancement of the candidate, that only Contractor was
able to analyze.
[234] ‘‘On the basis of all the above, the Arbitral Tribunal is satisfied that the
Joint Venture was thus not legally bound to State W-ize neither under the PSA,
nor under the Counterpart Programme.
[235] “Further, the fact that the Ministry was ready to extend the PSA under¬
mines State W’s position. Indeed, if State W-ization had so much value to
Respondent and the Joint Venture had breached its obligations in that regard,
it would reasonably not have considered granting the extension. It is noteworthy
that the final version of the REA upon which the parties had much discussions,
contained an Article regarding the creation of a State W-ization and Training
Subcommittee. Pursuant to this Article, the committee had to liaise with the
Operator with respect to, inter alia, ‘training and State W-ization plans pre¬
sented by the Contractor’. Hence, despite the introduction of the terms State
W-ization into the REA, it appears that the extension was not conditional upon
the exhaustion of the State W-ization process. No further detail as to State
W-ization was introduced within the REA.
[236] “Finally, State W’s Counterclaim is time-barred under the five-year
limitation period under State W law. Respondent alleges that the Minister
started to complain about the State W-ization process as soon as Year X-6
and yet State W waited until February of Year X+l to introduce its claim.
The Arbitral Tribunal does not share Respondent’s view that in order to present
a claim, one must be in a position to prove it or to know all the facts upon which
1
its rights to sue could be exercised. The Arbitral Tribunal objects to State W’s
position that it could not prove its claim until Year X-3, the date by which all
positions ought to have been State W-ized, -while criticizing since Year X-6 the
State W-ization process.
[237] “As already stated, in the absence of a clear indication of the meaning of
the terms ‘date of maturity5 under State W law, the Arbitral Tribunal is satisfied
that the time upon which the limitation starts running should be ‘on the day after
the day the obligee knows or ought to know the facts as a result of which the
obligee’s right can be exercised5, pursuant to Art. 10.2 of the UNIDROIT
Principles. As such, State W’s Counterclaim was time-barred.
[238] “For all the reasons above, the Arbitral Tribunal thus dismisses the State
W-ization Counterclaim.”
6. Invoices and Severance Counterclaim
[239] “State W alleges that the Joint Venture failed to pay (i) invoices in respect
of goods and services rendered prior to the expiry of the PSA and (ii) sums which
it ought to have paid to its employees upon the termination of their employment
in Year X. As these charges were supported by Company C, State W claims an
indemnity, pursuant to Art. XV of the PSA, or alternatively damages for breach
of Art. IV (d) and Annex C Art. II of the PSA.
[240] “As to the unpaid invoices, State W asserts that it is entitled to indemnity
under Art. XV of the PSA as Company C is . . . owned 100 percent by State W,
is controlled by the Ministry and funded by the Ministry of Finance. Therefore,
in its view, Company C acted as an agent for State W, with the result that State W
has suffered a loss for which it is entitled to be indemnified. It further argues that
it has proven its damages as its witness identified each of the invoices in issue as
well as the underlying documentation. As to the quantum, State W asserts that
the invoices discharged by Company C amount to [a certain amount]. As it
accepts that part of these sums would be recoverable as Cost Product but
however that the level of Cost Product would have increased, thereby reducing
the level of profit product, it states that its claim should be reduced by
70 percent.
[241] “As to severance payments, State W argues that, in accordance with its
Labour Law, the Joint Venture had an obligation to pay ‘end of service benefit’
to all employees at the stipulated rate ‘upon the end of his service’. The Joint
Venture was subject to the Labour Law pursuant to Art. XVII (a) and Art. II (3)
of the Annex C of the PSA and Company C had discharged the Joint Venture’s
liability on behalf of State W. Finally, State W accepts that its claim also be
reduced by 70 percent as part of the sums it claims would be cost- recoverable.

«-i-: ‘.-Vù-ÿL

[242] “As to the payment of invoices, the Joint Venture explains that State W
has failed to prove, on the basis of Art. XV of the PSA, that (i) State W was held
liable for damages to a third party and that (ii) this liability was on account of the
Joint Venture’s operations, Further, the Joint Venture alleges that it is surprising
that Company C paid voluntary the invoices whereas, as alleged, it ‘ha[d] no
obligations in respect of costs prior to November of Year X’. State W failed to
prove the reasons why the Joint Venture would be required to reimburse
Company C’s voluntary payments. State W’s evidence, on the contrary, clearly
shows that State W did not in fact incur any liability to pay the alleged invoices
but that the decision was taken to advance Company C’s own business goal.
t •
Additionally, the Joint Venture argues that State W’s allegation regarding the
cost-recovery provisions are irrelevant. Whether the Joint Venture, Company C
or another operator incurred the operating costs, this entity would have recov-
ered them as Cost Product and thus the Share Product going to State W would
have remained the same. Last, it argues that State W failed to evidence that the
amount it seeks to recover represents invoices that were paid, in the amount
claimed and for goods and services received by the Joint Venture before
November of Year X.
[243] “As to the severance payments, the Joint Venture argues that this
counterclaim should be considered moot since every change in employment
of the Joint Venture’s employees was caused by State W’s breach of the exten¬
sion agreement. Alternatively, the Joint Venture States that this counterclaim
should be dismissed on the ground that the employees to whom Company C
made severance payments were never severed from their employment and thus
were not entitled to severance payments. Moreover, it argues that there were
previous situations in which the employer changed, but the new employer
retained the services of the same employees in the same capacities and did not
make severance payments. Similarly the Labour Law should not apply to the
instant case. Further, State W’s Minister of Labour’s letter only prevented
Company C from diminishing the rights and benefits to which its employees
were entitled with the Joint Venture.
[244] “Last, the Joint Venture underlines that the indemnification provision of
the PSA did not apply as State W was not liable for damages to a third party on
account of the Joint Venture’s operations. In fact, Company C certainly made
these payments because it thought it would be good for its business. As the Joint
Venture is of the view that neither the Joint Venture nor State W was ever liable
to pay severance to employees under the Labour Law or any other provision, it
requests that this Counterclaim be dismissed. Additionally, it argues that State
W failed to support its quantum of damages and that this claim should, in any
event, be reduced by 70 percent, as conceded by State W.

[245] “As to the payment of invoices, the Arbitral Tribunal underlines that,
despite the witness statement of Mr. K of the competent Ministry and its accom¬
panying documentation, Respondent did not provide any document evidencing
that State W actually paid the invoices as a result of being held liable for damages
attributable to the Joint Venture's operations, as requested by Art. XV of the
PSA. Indeed, it is Company C that did pay the invoices. Further, assuming that
these invoices resulted from the Joint Venture’s operations prior to November
of Year X, State W did not convincingly evidence that (i) the Joint Venture
refused to pay these invoices as alleged and (ii) that State W was thus held liable
to do so. On the contrary and as underlined by the Joint Venture, a witness had
testified that ‘he took the decision that in order to keep the goodwill of these
contractors and demonstrate that Company C was properly funded, Company
C would pay for the Joint Venture’s invoices’. It thus seems that there was no
obligation on Company C (and consequently no obligation on State W) to pay
these invoices but that the decision to so do was strategic for Company C’s
future relationships with any suppliers. Yet, State W even conceded that
‘Company C has no obligations in respect of costs prior to November of
Year X’ and yet did not justify why then Company C did pay these costs.
[246] “Additionally, there is no evidence that State W requested Company C
to proceed to these payments as purported by Respondent. Hence, despite the
allegations that the Joint Venture’s reluctant behavior ‘put a strain on our budget
and generally made purchasing difficult and it has taken about a year to sixteen
months to regain normal credit facility with suppliers’, no damages to State W
caused by the Joint Venture’s operations were demonstrated. On the contrary, it
seems that only Company C could have suffered loss from the Joint Venture’s
alleged decision not to pay for services rendered during their operation of the
Area but this has not been demonstrated either.
[247] “Additionally, the Arbitral Tribunal is satisfied that the Joint Venture
did not breach Art. IV (d) and Annex C (2) of the PSA. Indeed, even though the
Joint Venture, as Operator, had to advance all costs of operations during the
term of the PSA, which is not denied, it also had a right to recover them. Yet,
Company C, which did advance the costs, was to recover them as would have
been the case if the Joint Venture had proceeded to the payment.
[248] “Further, the Share Product going to State W was to remain the same,
whether the Joint Venture or Company C advanced the costs. Thus State W
benefited from the fact that Company C made these payments and cannot argue
that the fact that the Joint Venture did not advance the costs caused it specific
harm. For State W, the result is exactly the same. Thus, the Arbitral Tribunal is
of the view that State W did not suffer any loss on that basis.
[249] “Consequently, the Arbitral Tribunal dismisses State W’s Counterclaim
for reimbursement of invoices.

.. t.-- ------ —— V_T. ir. - .. .
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1

[250] “As to the severance payments, it is to note that Respondent relied on
the alleged legal advice from the Ministry of Labour stating that ‘the employees
who continued to work for Company C are entitled to the same advantages as
per the Labour Law which provides that if the contract has not expired but the
employer has changed regardless of the reasons, the succeeding employer shall
be responsible for executing all obligations consequential on the previous
employment contract unless the contract states otherwise’. On that basis,
Respondent indeed concluded that ‘in light of the above, Company C (on behalf
of State W) had no option to make the severance payments pursuant to the
Labour Law’.
r [251] “Thus, the legal advice indicates that the Labour Law contemplates that
the employees who changed employer are entitled to the same advantages as
within their previous employment but does not provide specifically that sever¬
ance payments are to be made. As explained by the President of Labour Union
Í to the General Manager of Company C in a letter of December of Year X,
Company C was required, on the basis of the Labour Law, to adopt the same
employment conditions, pay the same salaries and maintain the same privileges
as were applied by the Joint Venture. State W’s conclusion that Company C had
to make the severance payments on that basis is not justified.
[252] “Additionally, the Labour Law provided clearly that [the new employer
shall be responsible for the execution of all the obligations in the work contract,
unless the parties otherwise agree in the contract], which shows that the Joint
Venture had in any case no obligations towards its former employees becoming
Company C’s employees. It has not been demonstrated that the parties agreed to
a contrary effect in the contract.
[253] “Respondent also relies on the Labour Law [where it states that at the
end of their service workers are entitled to a monthly pension or a lump sum
bonus in accordance with the provisions of the Social Insurance Law or any
other more favorable system]. However, Respondent provided no evidence that
some contracts were indeed severed and on the contrary alleged that Company
C ‘will absorb all current personnel at their current salary and benefits’ adding
that ‘there will be no changes to the conditions of employment for any
employees’.
It thus rather seems that the employers continued their work under the new
authority of Company C, that a mere transfer was effected and that the service of
these employees did not end, as provided by the Labour Law.
[254] “The Labour Law also provides that [workers may not be deprived of
any entitlement when the work contract is terminated]. Hence, since no contract
termination was established, no severance payments were to be made.
[255] “It is a fact that a witness testified that ‘the law provides for severance
payment upon termination of employment with a specific employer and this is
Reprinted fiom the Yearbook Commercial Arbitration 717

immaterial as far as severance payments are concerned, if the employee is

immediately employed by another employer’. Further, he added that 'even
though the employees were promised the continuation of their service with
Company C, the mere fact that their employer was changed constituted termi¬
nation of their employment with the Joint Venture and triggers the severance
payment provision’. Such interpretation is far from being convincing and is at
odds with the spirit of the Labour Law. It must as such be rejected. If Company
C proceeded voluntarily to severance payments, whereas it had no obligation to
do so, no reimbursement by the Joint Venture should occur.
[256] “In view of the above, the [Arbitral Tribunal] thus dismisses State W’s
Counterclaim regarding invoices and severance payments.”
7. Conclusion
[257] “Consequently, each Counterclaim submitted by Respondent is

dismissed.”
IV. COSTS
[258] “It is convenient to address first the dispute over party costs and then
consider the dispute over other arbitration costs.”
1. Party Costs
[259] “The Joint Venture seeks an order that Respondent pay all of ‘the Joint
Venture’s Costs’ in the sum of . . . together with daily compound interest from
the date of the Tribunal’s award until full payment and that Respondent is not
entitled to any order for its costs associated with these legal proceedings
Respondent seeks an order that the Joint Venture pay all or part of its costs in the
total sum of . . . together with interest. . . .
[260] “As both Parties recognize in their written submissions, this Arbitral
Tribunal enjoys a broad discretionary power in deciding the allocation of party
(and other arbitration) costs between the Parties and (as regards party costs)
assessing their recoverable amount, pursuant to Art. 31 of the ICC Rules. This is
not a case where the Parties have opted for an order that party costs should lie
where they fall; nor is there any mandatory rule of law qualifying the application
of Art. 31. To the contrary, both Parties assert the general principle that arbi¬
tration costs incurred by the prevailing party should be paid by the losing party.
Moreover, Art. 31(3) provides expressly for the Arbitral Tribunal to fix the costs
of the arbitration and to decide which of the parties shall bear them or in what
proportion they shall be borne by the parties: this amounts to ‘a complete

y
jurisdiction to allocate costs as [the arbitrators] see fit’ (Derains & Schwarz, A
Guide to the ICC Rules of Arbitration (2nd ed., 2005), p. 371; and see also Biihler
& Webster, Handbook of ICC Arbitration (2005), pp. 368-381).
[261] “As regards the allocation of party costs, the Tribunal has decided above
that all the Counterclaims advanced by Respondent are dismissed, in addition to
other Counterclaims which were abandoned by Respondent during the course
of these arbitration proceedings. Accordingly, as regards these Counterclaims,
the Joint Venture is unequivocally the prevailing party and should not be
required, as a general principle, to bear any pan of Respondent’s costs attrib¬
utable to the Counterclaims; and, conversely, Respondent should in principle
pay the costs of the Joint Venture incurred in defending these Counterclaims.
[262] “ As regards the Claims advanced by the Joint Venture, the position is
less unequivocal. The bulk of these claims have not succeeded, although a pay¬
ment is nonetheless required to be made by Respondent as decided above by the
? Tribunal. Although the Claims cannot be said to have succeeded in full, it can
also be said that the Defence did not fully succeed either. There are, moreover,
two further complicating factors in this case.
[263] “First, given the way in which the case was prepared and presented by
the Parties, the Arbitral Tribunal considers that it is not appropriate to distin¬
guish between costs incurred in relation to the Claims and Counterclaims, even
if it were possible to do so as a matter of accounting. Both Parties recognize, to
differing extent, the difficulties in reliably allocating party costs separately to the
Claims and Counterclaims. The Counterclaims were clearly a response to the
Claims; and this was for all practical purposes one commercial dispute, albeit
multi-faceted and massive. If the Claims had not been brought at all, it appears
unlikely to the Arbitral Tribunal that any Counterclaim would have been made
as an original claim. Equally, the Counterclaims, once made, ensured that the
Claims would be maintained in full.
[264] “Second, the Claims were brought manifestly in good faith by the Joint
Venture. It was not merely a question of the Joint Venture reasonably bringing
its claims in these proceedings, but rather the reverse. It was only at the main
hearing that the substance and strength of Respondent’s Defence to the claims
emerged, for the first time, with the oral testimony of certain of Respondent’s
factual witnesses. Until then, in the Arbitral Tribunal’s view, there was no suf¬
ficient answer clearly advanced by Respondent which could reasonably have led
the Joint Venture to have concluded that its full claims were or might be unsus¬
tainable. By the time of the hearing, however, the course of these proceedings
was firmly set; and there could be no question of the Joint Venture changing that
course then or after that hearing.
:
I
[265] “In these circumstances, for all these reasons, the Arbitral Tribunal con¬
siders that Respondent should bear all the legal costs incurred by the Joint
Venture in regard to both the Counterclaims and the Claims.
[266] “As regards quantification, the Tribunal seeks to compensate the Joint
Venture for its legal costs reasonably incurred in a reasonable amount. It bears in
mind that the Parties’ party costs are broadly similar, given certain differences in
sources of expenditure. It recognizes that this was a very large, complex and
difficult case for many reasons, requiring extensive expenditure bn legal specia¬
lists and other experts. It sees no reason to exclude from its assessment the Joint
Venture’s in-house legal costs which, if incurred out-house, would have
required greater, not less, expenditure.
[267] “In all the circumstances, the Tribunal quantifies the recoverable legal
costs of the Joint Venture in the sum of. . . .”
2. Other Arbitration Costs
[268] “As regards the allocation of other arbitration costs, the Arbitral
Tribunal reaches the same decision for the same reasons: Respondent should
bear in full all other arbitration costs, i.e. the fees and expenses of the Tribunal
and the ICC administrative expenses fixed by the ICC Court under Art. 31(1)
and (2) of the ICC Rules to the amount of. . . .
[269] “As both parties have equally advanced half of that amount each,
Respondent is consequently condemned to refund the amount to the Joint
Venture.
[270] “The Joint Venture has requested compounded daily interest on the
amount of the costs allocated to it, beginning on the date of the Tribunal’s
Final Award and continuing until the date of payment. Such request is
incompatible with State W law which limits the rate of interest to 5 percent
per year. It has also requested ‘all accrued interest in full’.
[271] “There are no accrued interests on the costs allocated to the Joint
Venture since neither the very principle of its credit nor its amount was estab¬
lished before the issuance of this award.
[272] “Consequently State W will be ordered to pay a 5 percent yearly interest
on the above amounts as from the date of this Award until the date of full
payment.”

Sentences Arbitrales de la CCI
initialement publiées au Journal du Droit International (Clunet)
2008-2011
::
■
j
g
-
Sentence finale rendue dans l’affaire 12418 en 2004
Droit applicable. - Droit français choisi par les parties. - Contrat de vente
internationale. - Application de la convention de Vienne sur la vente
internationale de marchandises. - Prise en compte des usages. - Application
subsidiaire du droit français.
Procédure. - Administration de la preuve. - Pouvoirs de l’arbitre. - Devoir
de collaboration des parties.
Le tribunal arbitral applique le convention de Vienne sur la vente internationale de

marchandises et règle plusieurs questions de preuve documentaire.
Le litige trouve son origine dans un contrat de fourniture, conclu en 1992, aux termes
duquel une société française A, non partie à la procédure arbitrale, aux droits de laquelle est
venue une société française B, partie défenderesse, s’est engagée à fournir à une société
grecque, partie demanderesse, plusieurs appareils d’un certain type fonctionnant grâce à un
logiciel de base pour lequel un contrat de licence d’utilisation avait préalablement été
conclu entre les mêmes parties. Plusieurs dispositions contractuelles portaient sur la gar¬
antie et la limitation de responsabilité du défendeur et prévoyaient que ce dernier - ou un
installateur qualifié présenté par le demandeur et accepté par le défendeur - fournirait un
support et une assistance technique à l’installation, l’utilisation et/ou le développement des
appareils, sur demande écrite du demandeur et à un coût supplémentaire.
Plusieurs livraisons du type d’appareil en cause ont été effectuées par la défenderesse
avant que les parties, à la suite de difficultés de maintenance et à l’initiative de la deman¬
deresse, décident en 1995 de mettre fin au contrat de fourniture, étant précisé que tout
nouvel achat d’appareils se fera selon un nouveau contrat. Parallèlement, la demanderesse
change de société de maintenance et conclut un nouveau contrat avec la société X, non
partie à la procédure, après avoir obtenu préalablement une garantie de la défenderesse. La
demanderesse reproche à la défenderesse d’avoir manqué à son obligation d’assistance et
allègue que les appareils livrés n’ont jamais été opérationnels du fait du manque de dili¬
gence et de rapidité du défendeur, ce dernier estimant que son obligation de garantie était
limitée aux seuls appareils livrés avant la date de résiliation du contrat.
Dans sa sentence, l’arbitre unique, qui siégeait à Paris, rappelle les règles de droit
applicables à la présente espèce ainsi qu’il suit:
« La clause d'arbitrage incluse dans le contrat de 1992 indique que les relations
contractuelles des parties sont régies par le droit français. Les parties s'accordent
d dire que cette désignation prévue par le contrat comprend, s'agissant d 'une vente
internationale de marchandises, la convention de Vienne de 1980 d laquelle la
France est partie. Toutefois, cette convention peut ne pas régler toutes les ques¬
tions posées dans la présente affaire, si bien que le droit interne français devra être
appliqué. De surcroû, et contrairement d ce que soutient la défenderesse, en vertu
de l’article ¡7 du règlement d 'arbitrage de la CCI, le tribunal arbitral tient compte
des usages du commerce pertinents.
Les parties, par ailleurs, s’accordent à dire que le droit français s'applique
également aux livraisons effectuées et aux engagements pris postérieurement à la
résiliation du contrat de 1992 alors qu’aucune mention expresse du droit appli¬
cable n’est faite dans l’engagement de garantie de 1995 ni dans les offres de
contrat de vente faites par la défenderesse postérieurement [d la date de résiliation
du contratfni dans les commandes passées par le demandeur. »
Reprinted from the Clunet 723

SENTENCES ARBITRALES AFFAIRE NO. 12418, 2004
Avant de trancher chacun des points litigieux figurant dans l’acte de mission, l’arbitre
relate un incident de procédure concernant la preuve.
« Un incident concernant la preuve a étéouvert par lettre de la demanderesse datée
du ( ... ) selon laquelle: « la version signée du contrat entre [la société X et la
société A] serait différente de la version versée aux débats » et qu’il existerait des
relevés semestriels des incidents de maintenance qui seraient en possession de [la
défenderesse et de la société X qui indiqueraient] le nombre de jours pendant
lesquels les pièces de rechange (...) étaient indisponibles ». En conséquence,
il était demandé au Tribunal arbitral d'enjoindre la société défenderesse « de
délier la société X de la clause de confidentialité qui les lie » afin que ces pièces
soient communiquées d la demanderesse.
Le ( ... ), l’arbitre unique a adressé une lettre ata parties en donnant d la
défenderesse jusqu’au ( . . . ) pour communiquer ses observations sur la demande
de la demanderesse.
[Dans le délai imparti], la défenderesse, se fondant exclusivement sur le droit
français, et notamment les articles 1315 et 1331 du Code civil et 138 du Nouveau
Code de procédure civile, a écrit en substance que la demanderesse manque d
fonder sa demande de communication de pièces, celles-ci n'étant pas suffisamment
identifiées ni leur existence prouvée et que, dès lors, la demanderesse est irrece¬
vable en sa demande.
Par lettre du (...), l’arbitre unique a pris la décision dont la teneur est
rappelée ci-après:
« Par la présente, je réponds à la demande des Conseils de la société deman¬
deresse en date du ( ... ) concernant une difficulté relative d des documents
détenus par un tiers et couverts par une obligation de confidentialité, au vu des
observations du Conseil de la société défenderesse en date du ( ... ).
Je tiens d’abord d rappeler aux parties la teneur de l'article XI de l'acte de
mission signé le ( ... ) qui dispose: « The rules governing the proceedings before
the Arbitral Tribunal shall be those resulting from the ICC Rules and the Terms of
Reference. Where they are silent, any ndes which the parties, or, failing them, the
Arbitral Tribunal may settle, whether or not by reference to a mtmicipal procedural
law applicable to the arbitration, will apply. »
Le règlement d’arbitrage en son article 20 prévoit: « 1. Le tribunal arbitral
instruit la cause dans les plus brefs délais par tous moyens appropriés. (...)
5. A tout moment de la procédure, le tribunal arbitral peut demander aux parties de
produire des éléments de preuve supplémentaires ». Par ailleurs, tant le règlement
d'arbitrage de la CCI que l’acte de mission (...) prévoient que le tribunal peut
entendre des témoins soit d la demande d'une partie, soit de sa propre initiative.
Par ailleurs, la pratique bien établie de l 'arbitrage commercial international mon¬
tre que le tribunal ne doit appliquer les règles de procédure du lieu de l 'arbitrage
que si celles-ci sont d'ordre public, nature qui, si ces règles n 'étaient pas appli¬
■
quées, pourrait entacher l’éventuelle validité de la sentence arbitrale.

En l’espèce, le défendeur n'indique pas que l’une des règles de procédure
française qu'il invoque serait d’ordre public. Il est d'ailleurs patent que, d’une
manière générale, en matière de preuve fort peu de règles revêtent cette nature.
De surcroû, le règlement d’arbitrage et l'acte de mission du ( ... ) contiennent
toutes les dispositions nécessaires d la solution de la requête présentée par la
société demanderesse.
La pratique de l 'arbitrage commercial international permet de dire également que
les parties doivent coopérer, autant que faire se peut, d la manifestation de la vérité.
Or, en l espèce, la demanderesse demande la communication de pièces préc¬
isément désignées, savoir:
0) version finale du contrat d 'assistance technique conclu entre [la société X
724 Reprinted from the Clunet

::.L-ZZHIXLZCI .......
ï:\
-
AFFAIRE NO. 12418, 2004 SENTENCES ARBITRALES
(2) les relevés semestriels d’incidents de maintenance pour la période allant de
1996 à 2001 des appareils.
Le tribunal arbitral demande donc a la société défenderesse la production de
ces pièces, étant précisé que:
(1) les relevés dont s 'agit peuvent prendre n 'importe quelle forme et n 'importe
quelle dénomination, mais doivent concerner les incidents de maintenance au cœur
du litige ayant donnélieu d la requête en arbitrage de la part de la demanderesse;
(2) le contrat et les relevés devront être communiqués au plus tard le (...), en
même temps que le mémoire que la société défenderesse doit produire conformé¬
ment au calendrier de procédure du ( ... );
(3) si la [défenderesse] confirme que ces pièces ne se trouvent pas en sa pos¬
session, elle relève la société X de son obligation de confidentialité afin de per¬
» mettre d cette société de remettre ces pièces;
(4) ce relevé de confidentialitédevra être communiqué d la sociétéX, avec copie
■h d la société demanderesse et au tribunal arbitral au plus tard le ( ... );
r:
(5) ce relevéde confidentialité devra indiquer que la sociétéX doit remettre ces
pièces d la société demanderesse, au plus tard le ( ... );
(6) dans l 'hypothèse évoquée au point (3), et si ces pièces devaient contenir des
informations confidentielles et des secrets d’affaires avérés, la société défender¬
esse pourrait saisir le tribunal arbitral, au plus tard le (...), d'une demande
circonstanciée afin que les pièces lui soient remises directement et que les condi¬
tions de leur communication d la société demanderesse soient organisées afin de
préserver cette confidentialité. »
Par lettre du (...), la défenderesse soumettait au tribunal arbitral une copie
d’une lettre qu'elle adressait d la société X, en application de la décision [de
l'arbitre], dont la teneur suit:
« On behalf of my client (...), I hereby release you from any applicable
confidentiality obligation based on technical assistance contract signed by
[company A] and your company for technical assistance of [products] sold by
company A to company X.
Such release is limited to:
—
a the signed copy of the technical assistance contract hereabove referred to;
b - the semi-annual statement of maintenance incidents regarding the [company
A] made products of [company X] for a period from 1996 to 2001. »
Par lettre du ( . . . ), la demanderesse soumettait d l 'arbitre unique une nouvelle
requête portant cette fois uniquement sur les relevés semestriels, le contrat signé
entre [la société A et la société X ]ayant entre-temps été communiqué par la
défenderesse. Elle indiquait: « La société X a informé notre cliente qu 'elle ne
pourrait s 'exécuter et communiquer les relevés périodiques afférents aux incidents
de maintenance [( . . .)] si elle n’obtenait pas une lettre l’ autorisant d être déliée
de son obligation de confidentialité émanant de [la défenderesse] et signée de la
main du président de ladite société ». De surcroît, les Conseils de la société
demanderesse proposaient le texte de la lettre que la société défenderesse devait
rédiger.
Par lettre du (...), l 'arbitre unique répondait de la manière suivante:
s [(...)] Il appartient aux conseils de la demanderesse et d cette dernière
d’expliquer d la sociétéX, que, dans le cadre du présent arbitrage, la levée de son
obligation de confidentialité par la lettre du Conseil est parfaitement valable et
suffisante, une lettre du Président de la société défenderesse n’étant pas néces¬
saire. De surcroît, d supposer même qu’une telle lettre fût nécessaire, le texte
proposé aujourd’hui par les Conseils de la demanderesse élargit leur propre
requête du ( ... ), dont les termes sont: «(...) des relevés semestriels des inci¬
dents de maintenance (...)». Il est vrai que les Conseils de la société demander¬
esse utilisaient le conditionnel montrant que leur cliente n’était pas certaine de

l'existence de tels relevés. C’est la raison pour laquelle, le tribunal arbitral a

précisé au point 1 de la page 2 de sa lettre du 23 juin que les relevés semestriels
en cause pouvaient prendre d'autres dénominations tout en précisant que seuls les
documents pertinents pour l’arbitrage étaient concernés. En d’autres termes, la
lettre de levée de confidentialité adressée d la société X par le Conseil de la
défenderesse doit être interprétée et mise en application au vu de la lettre du
tribunal arbitral du 23 juin et de la présente.
Je souhaite que la procédure d’arbitrage ne soit pas retardée indûment, raison
pour laquelle je pense que la difficulté invoquée par les Conseils de la demander¬
esse peut être aisément réglée au vu des explications ci-dessus. »
Par lettre du (...), la demanderesse J’adressait d la défenderesse lui deman¬
dant d’appuyer sa demande auprès de la société X afin qu’elle puisse obtenir les
pièces manquantes qui permettraient, disait-elle, de faire tout le jour dans cette
affaire. Par lettre du (..ÿ), clôturant ainsi l’échange de correspondance sur
l 'incident, la défenderesse répondait que la correspondance qu 'elle avait adressée
d la société X aux termes de la décision du Tribunal arbitral (...)»
Après avoir rappelé et analysé les faits de la cause, l’arbitre unique examine
ensuite chacune des prétentions des parties avant de débouter chacune des parties
de leur demande.
NOTE. -1. - Dans la présente espèce, le contrat relevait sans aucune difficulté du champ
d’application de la convention de Vienne sur la vente internationale de marchandises, les
deux conditions alternatives posées par son article 1 étant réunies. De fait, le critère
géographique de l’article 1.1 a), qui requiert l’établissement des parties dans des États
contractants différents (Grèce et France), était rempli. Il en était de même du critère
juridique de l’article 1.1 b) qui précise, outre l’exigence de l’établissement des parties
dans des États différends, que la convention est applicable « lorsque les règles de droit
international privé mènent d l'application de la loi d’un Etat contractant ». Dès lors, en
retenant la loi d’autonomie à titre de règle de conflit, la seule désignation par les parties du
droit d’un État contractant, à savoir le droit français, était suffisante pour justifier l’appli¬
cation des règles matérielles internationales de la Convention de Vienne par suite de leur
incorporation dans le droit français.
À l’évidence, conformément à l’article 17 du règlement d’arbitrage de la CCI, le tribunal
arbitral doit, dans tous les cas, tenir compte des usages du commerce pertinents. Il en est de
même au titre de la convention de Vienne qui retient, aux termes de l’article 9.2, que « sauf
convention contraire des parties, celles-ci sont réputées s'être tacitement référées ( ... )
d tout usage dont elles avaient connaissance ou auraient dûavoir connaissance et qui, dans
le commerce international, est largement connu et régulièrement observé par les parties d
des contrats de même type dans la branche commerciale considérée ».
Comme l’indique l’arbitre unique dans la présente sentence, le droit interne français de
la vente peut également avoir vocation à s’appliquer pour toute question non réglée par la
convention de Vienne. Toutefois, ce droit national ne peut intervenir qu’à titre subsidiaire
lorsque les principes généraux dont s’inspire la convention ne peuvent combler ses lacunes.
Le rôle subsidiaire dévolu au droit national, en l’espèce le droit français choisi par les
parties, résulte en effet de l’article 7.2 de la convention qui précise que « les questions
concernant les matières régies par la présente convention et qui ne sont pas expressément
tranchées par elle seront réglées selon les principes généraux dont elle s’inspire ou, d
défaut de ces principes, conformément d la loi applicable en vertu des règles du droit
international privé ».
II. - Les problèmes liés à la preuve documentaire dans l’arbitrage commercial
international demeurent toujours d’actualité en raison des divergences pouvant exister
entre les différents systèmes juridiques, tout particulièrement les systèmes de « droit

%

civil » et de Common Law (cf. Y. Derains, La pratique de l’administration de la preuve
dans l'arbitrage international: Rev. arb. 2004, p. 781; suppl. 2006 au Bulletin de la Cour
internationale d’arbitrage de la CCI, La production de documents dans l'arbitrage
international, Publication CCI n° 676). Certes, comme plusieurs sentences publiées
dans la présente chronique en ont fait état, la règle « actor incumbit probado » a été érigée
par les arbitres en un principe de portée universelle. Ainsi, selon ce principie, celui qui
réclame l’exécution d’une obligation doit la prouver et, réciproquement, celui qui se pré¬
tend libéré doit justifier le fait qui a produit l’extinction de son obligation (Sentence n° 1434
de 1975: JDI 1976, p. 978, obs. Y. D. - Sentence n° 3894 de 1981; JDI 1982, p. 987, obs. Y.
D- Sentence n° 6653 de 1993: JDI 1993, p. 1040, obs. J.-J. A.). Toutefois, si les questions
relevant de la charge et de l’objet de la preuve conduisent communément à l’application de
la loi qui régit le fond du droit puisque leur réglementation revient à un aménagement du
1" droit lui-même, les questions relatives à l’administration de la preuve, telle une demande de
* production de documents, relèvent par contre des règles de procédure applicables. Or, en
pratique, les parties définissent très rarement de telles règles de procédure dans leur con¬
vention d’arbitrage-
Le règlement d’arbitrage (1998) confère une grande liberté à l’arbitre dans la conduite
de l’instruction sous réserve du respect de la contradiction et du droit pour chaque partie de
recevoir un traitement égal à celui de l’autre. Cette liberté est tout particulièrement con¬
sacrée par l’article 15 du règlement qui dispose que, dans le silence de ce dernier, la
procédure est régie par les règles que les parties, ou à défaut le tribunal arbitral, détermi¬
nent, en se référant ou non à une loi nationale de procédure applicable à l’arbitrage. Par
ailleurs, l’article 20.1 du règlement prescrit au tribunal arbitral d’instruire la cause par tous
moyens appropriés et l’article 20.5 l’autorise à demander aux parties de produire des
éléments de preuve supplémentaires. Dans la présente sentence, en mentionnant en
outre que les règles de procédure du lieu de l’arbitrage ne s’appliquent que si elles sont
d’ordre public, l’arbitre affirme ainsi l’autonomie de la procédure par rapport à tout ordre
juridique national. Dans un tel contexte, l’arbitre peut valablement alléger pour une partie
le fardeau de la preuve et solliciter, comme dans la présente sentence, la collaboration des
parties à l’administration de la preuve.
L’autonomie de la procédure permet ainsi à l’arbitre de forger des règles adaptées aux
diverses situations auxquelles il peut faire face, tout particulièrement au cours de l’instruc¬
tion d’une affaire lorsque les parties n’ont fixé aucune règle. Les décisions prises par
l’arbitre unique et reproduites dans la sentence ici rapportée revêtent la nature d’ordon¬
nances de procédure ayant pour objet de fixer les modalités de la production, pendant la
phase écrite, de documents sollicités par le demandeur et d’identifier le type de document
recherché sur la base des informations fournies dans la demande. La démarche suivie par
l’arbitre apparaît similaire à celle préconisée par les règles de Y International Bar
Association on the Taking of Evidence in International Commercial Arbitration du 1er
juin 1999 ou à celle recommandée par la CNUDCI dans son aide-mémoire sur l’organi¬
sation des procédures arbitrales (1996) et qui reflètent une pratique suivie par les arbitres du
commerce international. A défaut d’information sur le contexte dans lequel la procédure
s’est déroulée, on peut toutefois s’interroger sur les raisons qui ont conduit l’arbitre à
recopier in extenso dans sa sentence finale les ordonnances de procédure rendues à
l’occasion d’une demande de production de documents à laquelle il avait été satisfait.
J.-J. A,
Mots-Cle’s: Arbitrage international Chambre de commerce et d’industrie (CCI) - Droit
-
applicable

S"¿Sm r*_ V.
-:-i
Sentence rendue dans l’affaire CCI n° 12605 en 2005

(original langue française)
Convention d’arbitrage.
— Groupe de sociétés.
Compétence. —
Absence de clause de juridiction dans un contrat.
—
Ensemble contractuel.
—
—
incluse dans d’autres contrats. —
Parties non identiques.
Indivisibilité de l’ensemble contractuel et du litige.
—
Qualification. —
La sentence arbitrale commentée illustre la possibilité d’une extension de la clause
compromissoire fondée sur la théorie des groupes de sociétés et de l'unité économique
formée par un ensemble contractuel, dont certains contrats contiennent une clause com-
promissoire et d’autres aucune clause de juridiction, mis en place par les différentes
filiales du groupe de sociétés.
À partir de l’année 1967, M. X. (le « demandeur »), un commerçant de nationalité
africaine, a engagé des relations d’affaires avec le groupe Y (non partie à l’arbitrage)
pour la distribution commerciale à l’étranger des produits de consommation du groupe
Y fabriqués sous différentes marques (les « produits »).
En 1980, M. X. a signé avec la société YA (non partie à l’arbitrage ou « YA »), une filiale
du groupe Y, un contrat pour la distribution de certaines marques des produits sur le
territoire d’un Etat africain a (le « contrat a 1980 »). Ce contrat est soumis au droit de
Djibouti et ne contient aucune clause de juridiction pour le règlement des différends entre
les parties.
En 1981, M. X. a consolidé ses relations commerciales en signant avec la société YB
(non partie à l’arbitrage ou « YB »), une autre filiale du groupe Y, un nouveau contrat pour
la distribution sous d’autres marques des produits du groupe Y dans le même État africain a
précité (le « contrat oc 1981 »).
En 1986, M. X. a étendu son activité commerciale sur le territoire d’un nouvel État
africain J3 en concluant deux autres contrats de distribution de certaines marques des
produits avec les sociétés YA et YC (non partie à l’arbitrage) (les « contrats P 1986 »).
En 1996, M. X. a confirmé le succès de son activité dans ce dernier pays en concluant
deux nouveaux contrats de distribution des produits avec la société YD (la « défenderesse
n° 1 »), et la société YE (la « défenderesse n° 2 ») (les « contrats P 1996 »), deux filiales de
nationalité anglaise du groupe Y. Ces contrats sont soumis au droit somalien.
Un différend est né peu de temps après la conclusion des contrats P 1996, M. X. s’étant
plaint auprès de la défenderesse n° 1 de problèmes liés notamment à un manque de stocks et
d’importations parallèles en provenance d’un pays tiers.
Enjanvier 1998, la défenderesse n° 1 ainformé M. X. de la réorganisation du groupe Y
et a sollicité un état détaillé des stocks des produits dans les deux pays africains a et p pour
mettre en place sa future politique de gestion des stocks et honorer les commandes du
demandeur. Celui-ci n’a pas été en mesure d’apporter les informations sollicitées mais a
continué à passer et à payer ses commandes.
En février 1998, les défenderesses et la société YA ont informé, chacune séparément, le
même jour, le demandeur de la résiliation des contrats p 1996 et le contrat a 1980 avec effet
en septembre 1998. Ces résiliations ont été confirmées malgré les sollicitations du deman¬
deur pour connaître les raisons de ces ruptures commerciales.
En mars 1998, la défenderesse n° 1 a confirmé au demandeur son refus définitif d’exé¬
cuter sa dernière commande.
i
1
En février 2003, le demandeur a introduit une demande d’arbitrage auprès de la Cour

internationale d’arbitrage de la CCI (la « Cour») à l’encontre des sociétés YD et YE pour la
rupture injustifiée des contrats p 1996 et ce pour l’ensemble de la relation contractuelle, y
compris, le contrat a 1980 conclu avec YA. Il a sollicité à cette occasion la réparation de
son préjudice financier.
La demande d’arbitrage est fondée sur l’article 19 des contrats p 1996 qui était rédigé
dans les termes suivants:
« Les parties s'efforceront à tout moment de résoudre toute dispute ci-dessus à
l'amiable et de manière opportune.
Les parties conviennent que toutes contestations, tous problèmes ou tous différ¬
ends éventuels afférents au présent Contrat ou y relatifs qui se présenteraient à tout
moment entre les parties et ne pourraient pas être réglés à l'amiable entre les
parties seront soumis à l'arbitrage et définitivement réglés conformément aux
règles de conciliation et d’arbitrage de la Chambre de commerce internationale
à Paris en vigueur à la date de soumission à l'arbitrage, lesquelles règles seront
réputées incorporées par référence dans le présent article 19.
Les parties conviennent que la condition suspensive pour toute procédure inten¬
tée devant n‘importe quel tribunal est que le problème ou le différend dont il s 'agit
doit tout d 'abord avoir été soumis à l 'arbitrage en vertu du présent article 19 et que
la procédure d’arbitrage doit avoir été dûment conclue ».
En réponse à la demande d’arbitrage, les défenderesses ont soulevé une exception
d’incompétence au motif que seuls les contrats P 1996 ont prévu une clause d’arbitrage
CCI pour le règlement de leurs différends avec le demandeur. L’arbitre unique n’est pas
compétent pour statuer sur le contrat a 1980 conclu entre le demandeur et la société YA car
celui-ci ne contient aucune clause de juridiction en cas de différends entre les parties. Selon
les défenderesses, « une partie ne peut être liée par une convention d 'arbitrage que si elle y
a consenti personnellement, c 'est-à-dire si la clause a été expressément stipidée entre les
parties ». Par ailleurs, la société YA n’ayant pas participé à la négociation ou à l’exécution
des contrats p 1996, elle ne peut être considérée comme ayant accepté une quelconque
clause compromissoire.
En outre, les contrats p 1996 et le contrat a 1980 sont des contrats distincts. Ils ont été
signés par des parties différentes et ne constituent pas un ensemble contractuel. Selon les
défenderesses:
« la jurisprudence n 'admet l'extension d’une clause compromissoire à un contrat
tiers, que lorsque les faits permettent de conclure à l’existence d'une volonté
commune de soumettre plusieurs conventions à une même clause compromissoire,
en particulier:
— lorsque le comportement ostensible d'une partie non-signataire d’une
clause compromissoire permet de penser que celle-ci a accepté ladite clause;
— en présence d’un ensemble contractuel, c’est-à-dire lorsque plusieurs con¬
trats se réfèrent les uns ata autres ou lorsque la clause compromissoire est stipulée
en faveur d’autres contrats compris dans un ensemble contractuel;
— dans le cadre de conventions indivisibles, indissociables, accessoires ou
complémentaires ».
Par ailleurs, il n’y a aucune confusion entre les différentes sociétés et contrats. En effet,
« l’appartenance de sociétés à un même groupe, ne permet pas en soi de conclure à une
confiision dans la gestion des contrats conclus par les différentes sociétés qui le composent
( . . . ) l 'extension d’une convention d 'arbitrage n 'est pas une simple question de structure
ou de contrôle ( ... ) d’où il résulte que l 'appartenance à un groupe de sociétés ne suffit
pas en soi à fonder l’opposabilité de la clause compromissoire à une partie non contrac¬
tante. Il faut une participation active du non-signataire à la négociation, à la conclusion ou

i:-:-?”.
à l 'exécution du contrat ». Or, aucune des défenderesses n’a participé à la négociation ou à

la conclusion du contrat a 1 980. La société YA a toujours été responsable de l’exécution de
ce contrat, et c’est elle qui a mis fin au contrat a 1980. C’est à elle seule que le demandeur a
sollicité la justification de la résiliation intervenue.
Compte tenu de ce qui précède, aucun élément n’est donc susceptible de fonder l’exten¬
sion de la clause compromissoire contenue dans les contrats P 1996 au contrat a 1980.
Même à supposer que les défenderesses aient géré certains aspects des contrats litigieux
de « manière commune, cela ne saurait constituer me modification du contrat [a] et
encore moins un accord postérieur et implicite sur les termes d’une quelconque clause
compromissoire. Pour les mêmes raisons, les contrats signés très postérieurement en 1996
portant sur [le pays p/ ne sauraient être considérés, comme semble le suggérer le deman¬
deur pour les seuls besoins de sa requête, comme des avenants ou autrement ayant pour
effet de modifier le contrat [a] (...) R est de jurisprudence constante que la validité
:;î d’une clause compromissoire dépend de savoir si la partie recherchée (en l'espèce [YA])
avait une connaissance effective de la clause compromissoire au moment de la signature
s. du contrat litigieux; la réponse est indiscutablement la négative. La clause compromissoire
n'est valable entre les parties que pour autant que ladite clause a été expressément stipulée
■■4.
entre les parties. Le demandeur ne saurait, en conséquence, démontrer une acceptation
non équivoque par [YA] d’une quelconque clause compromissoire en l'espèce ».
NOTE. — Nonobstant l’exception d’incompétence soulevée par les Défenderesses, la
Cour a décidé de mettre en œuvre la procédure d’arbitrage sur la base de l’article 6(2) du
règlement CCI. Il appartient donc à l’arbitre unique, siégeant à Paris, de se prononcer sur sa
compétence avant tout examen au fond du litige.
—
I. Le problème de l’extension de la clause compromissoire dans le cadre d’un groupe
de sociétés est a priori classique. La question soulevée dans l’espèce commentée est
toutefois plus complexe. En effet, le problème visé n’est pas de savoir si l’arbitre est
compétent pour statuer à l’égard de la société YA, signataire du contrat a 1980 car
celle-ci n’a pas été attraite dans la procédure par le demandeur. Par contre, la question
se pose de savoir si la défenderesse n° 1, qui a conclu la clause compromissoire avec le
demandeur dans le cadre des contrats P 1996, et qui est attraite dans la procédure sur la base
de cette clause, peut être tenue responsable pour l’inexécution alléguée du contrat a 1980
qu’elle n’a pourtant pas conclu mais dont elle aurait repris l’exécution à son compte.
Pour répondre à la question posée et décider de l’extension de la clause compromissoire
contenue dans les contrats P 1996 au contrat a 1980, l’arbitre a analysé le contexte écon¬
omique et j uridique qui a pu pousser la défenderesse n° 1 à assurer l’exécution du contrat a
1980 aux lieu et place de la société YA.
L’arbitre a examiné l’organisation du groupe Y qui comprend la société YA et les
défenderesses n° 1 et 2. L’arbitre constate que le groupe Y est composé très précisément
de trois échelons, des sociétés propriétaires, des sociétés exportatrices et des sociétés de
marketing, chacune ayant un rôle spécifique.
Les sociétés propriétaires des marques désireuses d’exporter leurs produits dans une
zone déterminée, font appel aux sociétés exportatrices intervenant dans cette zone, faute de
disposer de moyens humains et matériels nécessaires pour exploiter elles-mêmes les
marques déposées.
Les sociétés exportatrices, qui comprennent la société YA et les défenderesses n° 1 et 2,
exploitent les marques déposées par les sociétés propriétaires en vertu des contrats de
licence concédés par ces dernières, et se répartissent au niveau interne les tâches relatives
à l’exportation des produits, toutes marques confondues. La société YA gère l’ensemble
des opérations administratives relatives à l’expédition et à la facturation des produits tandis
que la défenderesse n° 1 assure la gestion globale des activités d’exportation.

Les sociétés de marketing sont chargées de recueillir les informations sur les marchés
locaux et de représenter les sociétés exportatrices auprès des distributeurs locaux. C’est
ainsi que l’une d’entre elles, la société YF (non partie à l’arbitrage) a représenté la société
YA et les défenderesses auprès du demandeur, sous le contrôle direct et les directives de la
défenderesse n° 1.
C’est dans ce contexte que la défenderesse nD 1 s’est substituée à la société YA pour
l’exécution et la gestion du contrat a 1980 en sus des contrats P 1986, et plus généralement
de l’ensemble des contrats conclus avec le demandeur. Sur la base des pièces produites au
dossier, l’arbitre a pu constater que la défenderesse n° 1 a pris une part prépondérante dans
l’exécution et la résiliation des contrats aux lieu et place de la société YA. C’est la défen¬
deresse n° 1 qui a échangé des correspondances avec le demandeur en ce qui concerne la
livraison des produits. C’est encore elle qui s’est posée vis-à-vis du demandeur comme la
société gérant g]obalement la relation contractuelle pour le groupe Y et la société YA. C’ est
également elle qui a annoncé au demandeur la réorganisation du groupe et demandé l’état
des stocks de ses produits, confirmé la résiliation définitive des différents contrats et le
refus d’accepter les dernières commandes passées par le demandeur. L’arbitre a pu ainsi
conclure que la défenderesse n° 1 a eu l’intention d’être « une véritable partie à ces
contrats, y compris ceux qu'elle n 'a pas directement signés et qui avaient été précédem¬
ment conclus par [YA] ».
La solution retenue par l ’arbitre, siégeant à Paris, est conforme à la pratique arbitrale en
ce qui concerne l’application de la clause compromissoire aux groupes de sociétés, et en
particulier la jurisprudence française. On citera la sentence arbitrale intérimaire rendue en
France en 1982 dans la célèbre affaire Dow Chemical d Isover où les arbitres se sont
reconnus compétents à l’égard de deux parties non signataires (la société mère et une
filiale) mais qui appartiennent à un groupe de sociétés dont deux des filiales ont signé
la convention d’arbitrage. Ils ont justifié leur décision en se fondant « sur la commune
volonté des parties à la présente procédure, telle qu elle résulte des circonstances qui ont
entouré la conclusion et caractérisé l'exécution puis la résiliation des contrats où elles
figurent, et en tenant également compte, à l 'exemple notamment de la jurisprudence fran¬
çaise relative à l 'arbitrage international, des usages conformes aux besoins du commerce
international, notamment en présence des groupes de sociétés ». Selon les arbitres, les deux
parties non signataires étaient fondées à invoquer la clause compromissoire car un groupe
de sociétés peut avoir une réalité économique unique en dépit de la personnalité juridique
distincte de chacune d’entre elles. C’est ainsi que « la clause compromissoire expressément
acceptée par certaines des sociétés du groupe, doit lier les autres sociétés qui par le rôle
qu’elles ont joué dans la conclusion, l'exécution ou la résiliation des contrats contenant
lesdites clauses apparaissent selon la commune volonté de toutes les parties à la procé¬
dure, comme ayant été de véritables parties à des contrats, ou comme étant concernées, au
premier chef, par ceux-ci et par les litiges qui peuvent en découler » (V. Sentence CCI n°
4132: Rev. arb. 1984, p. 137; JDI 1983, p. 899, note Y. Derains. - V. également CA Paris,
21 oct. 1983: Rev. arb. 1984,p. 97, note A. Chapelle; JDI 1983, p. 899, note Y. Derains, qui
a rejeté le recours en annulation contre la sentence aux motifs que « par une interprétation
souveraine des conventions (...) et des documents échangés lors de leur négociations et
de leur résiliation, les arbitres ont jugé, au terme d’une motivation pertinente et exempte de
contradiction, que, suivant la volonté commune de toutes les sociétés intéressées, les
sociétés Dow Chemical France et Dow Chemical Company avaient été parties à ces con¬
ventions bien que ne les ayant pas signées, et que la clause compromissoire leur était
désormais applicable »).
Les critères préconisés dans l’affaire Dow Chemical pour étendre la clause compromis¬
soire aux membres du groupe non signataires ont été repris et confirmés ultérieurement
dans la pratique arbitrale et judiciaire (V. notamment D. Vidal, L’extension de l’engage¬
ment compromissoire dans un groupe de sociétés: application arbitrale et judiciaire de la

y-.--- :i— -:-.J:-- :-_- ..¿•ÿti
-T -ÿ•-'ÿ
:
théorie de ¡’alter ego: Bull. CIArb. CCI, vol. 16n° 2, 2e semestre 2005, p. 67 et les extraits
de sentences arbitrales de la CCI portant sur l'extension de la convention d'arbitrage aux
CCI, Vol. 2, n° 2, nov. 1991, p. 20. _
parties non signataires: Bull. CIArb. CCI, vol. 16n° 2, 2S semestre 2005, p. 81 et Bull CIArb.
— M. Henry, La théorie du groupe des sociétés
appliquée aux arbitrages impliquant un Etat: RDAI/ILBJ 2006, n°3, p. 297. CA Pau
26 nov. 1986, Sponsor AB d Lestrade: Rev. arb. 1988, p. 153, note A. Chapelle).
Il faut néanmoins se garder de généraliser la solution très extensive préconisée par les
juridictions françaises. En effet, contrairement à la jurisprudence française qui applique
directement les règles matérielles dégagées par la jurisprudence (notion de groupes de
sociétés, présomption résultant d’une participation à l’exécution), on peut indiquer à
titre d’exemple que la jurisprudence suisse, anglaise ou américaine est plus restrictive
sur la question (pour une discussion en droit comparé, V. notamment M. Bühler et Th.
■a Webster, Handbook of ICC Arbitration, 2nd ed„ Sweet & Maxwell 2008, §6à61, p. 95.
J.-F. Poudret et S. Besson, Comparative Law of International Arbitration, 2"J ed., —
;•
The Group of Companies Doctrine »
—
Thomson, Sweet & Maxwell 2007, §250, p. 210. S. Wilske, L. Shore et J.-M. Ahrens,
— Where Is It Heading?: The American Review of
—
International Arbitration 2006, vol. 17, n° 1, p. 73. L. Heuman, Arbitration Law in
Sweden: Practice and Procedure: Juris Publishing 2003, § 2.7, p. 77).
Le droit suisse se distingue du droit français en soumettant la validité de la convention
d’arbitrage à une condition de forme. La volonté des parties doit être manifestée clairement
par un texte et ne saurait être déduite d’actes concluants non écrits (art. 178, al. 1 LDIP).
Une fois cette condition remplie, il y a lieu ensuite d’interpréter les textes pour déterminer
si toutes les parties ont effectivement voulu que les sociétés non signataires de la conven¬
tion soient parties à celle-ci. Comme indiqué par le professeur Poudret, cette interprétation
se fait en application des dispositions de l’article 178, alinéa 2, LDIP qui prévoient l’appli¬
cation du droit le plus favorable, soit le droit applicable choisi par les parties, désigné par
les arbitres ou du droit suisse au titre du droit du siège (V. J.-F. Poudret, L'extension de la
clause d’arbitrage: approche française et suisse: JDI 1995, p. 893). Le droit suisse n’appli¬
que donc pas les règles matérielles dégagées par la jurisprudence suivies en France, telles
que la notion de groupe de sociétés, la présomption de l’acceptation de la convention
d’arbitrage résultant d’une participation à l’exécution ou encore le principe de l’autonomie
de la clause compromissoire détachée de toute loi (V. en ce sens Cass. 1ere civ., 20 déc.
1993, Municipalité de Khoms El Mergeb d Sté Dalico: JurisData n° 1993-002549; Rev.
—
arb. 1994, p. 119, note H. Gaudemet-Talion. CA Paris, 7déc. 1994, Sté V 2000 d Sté
Project XJ 220 ITD et a.: JurisData n° ¡994-024732; Rev. arb. 1996, p. 245, note Ch.
—
Jarrosson. Cass. lre civ., 21 mai 1997: JurisData n° 1997-002165; Rev. arb. 1997, p.
538, note E. Gaillard. —
Cass. ln civ., 30 mars 2004, Sté Uni-Kod d Sté Ouralkali:
JurisData «° 2004-023083; Rev. arb. 2004, p. 723 et Rev. qrb. 2005, p. 959, note Ch.
Seraglini: « En vertu d’une règle matérielle du droit international de l’arbitrage, la clause
compromissoire est indépendante juridiquement du contrat principal qui la contient direc¬
tement ou par référence, et son existence et son efficacité s’apprécient, sous réserve des
règles impératives du droit français et de l’ordre public international, d’après la commune
volonté des parties, sans qu’il soit nécessaire de se référer à une loi étatique »). En droit
suisse, la considération de l’indépendance juridique des personnes morales peut être plus
importante que la notion économique de groupe de sociétés ( V. J.-F. Poudret et S. Besson,
op. cit. §258, p. 220 à 225).
Le droit anglais est également plus restrictif que le droit français. Les tribunaux anglais
ont ainsi annulé partiellement, pour défaut de compétence, la sentence rendue à Londres
par un tribunal arbitral en application du droit américain dans l’affaire Peterson Farm.
Selon les arbitres, le droit applicable à la clause compromissoire est distinct du droit
applicable au fond et dépend de l’intention commune des parties. De ce fait, les arbitres
ont appliqué la théorie des groupes de sociétés pour accorder des dommages et intérêts

subis par la défenderesse, y compris ses filiales dans le cadre de l’exécution du contrat de
vente. Ce raisonnement a été sanctionné par les juges qui considèrent que la théorie des
groupes de sociétés ne fait pas partie du droit anglais (V. Peterson Farms Inc. vs C&M
Farming Ltd., [2004] 1 Lloyd’s Law Rep. 603, 606 (Q.B.), [2004] All E.R (D) 50 (Feb.),
SIAR 2004:1 p. 265, note M. Davis). S’agissant du droit applicable à la convention
d’arbitrage en l’absence d’un choix fait par les parties, c’est le droit du lieu de l’arbitrage
qui s’appliquera (V. C. vs D., [2007] EWCA Civ 1541; D. Howell, « English Court of
Appeal Decision Supports The Position That The Proper Law Of The Arbitration
Agreement May Be The Law Of The Seat Of Arbitration Where Arbitration Clause
Contains No Express Governing Law », Medley’s IAR January 2008, vol. 23 #1, p. 27
et Asian DR April 2008 p. 62. — V. également Braes of Doune Wind Farm (Scotland) Ltd
vs Alfred McAlpine Business .Services Ltd [2008] EWCH 426 (TTC)).
L’existence d’un groupe de sociétés est une condition nécessaire mais est-elle suffisante
pour justifier l’extension de la clause compromissoire à un ensemble contractuel conclu
entre des parties signataires différentes? En d’autres termes, à supposer que la défenderesse
n° 1 ait repris l’exécution du contrat a 1980 conclu entre la société YA et le demandeur, la
question se pose de savoir si l’arbitre peut étendre les effets de la clause compromissoire
insérée dans les contrats p 1996 signés entre la défenderesse n° 1 et le demandeur au contrat
a 1980 conclu entre YA et le demandeur et qui ne contient aucune clause de juridiction.
C’est tout l’intérêt et la difficulté du cas d’espèce commenté qui porte la discussion sur
l’extension de la clause compromissoire dans le cadre d’un groupe de sociétés et d’un
groupe de contrats.
II.— Pour répondre à la question posée, il est utile de rappeler la notion d’ensemble
contractuel en raison de la diversité des expressions utilisées, tels que le terme de groupes
de contrats. Le groupe de contrats correspond en principe à la situation dans laquelle deux
ou plusieurs contrats, conclus entre des parties identiques ou différentes, sont liés entre eux
de telle sorte que les événements affectant l’un sont susceptibles d’avoir un effet sur les
autres. Comme noté par M. Cohen, le groupe de contrats se décline « en diverses variétés:
chaînes de contrats (succession de contrats ayant en tout et partie le même bien pour objet),
sous-contrats (contrats de même nature dont l’un, le sous-contrat, est dans la dépendance de
l’autre, principal); ensembles contractuels (contrats concourant à la réalisation d’une même
opération économique globalement » (D. Cohen, Arbitrage et groupe de contrats: Rev. arb.
¡997, p. 471. — plus généralement, V. Ph. le Tourneau, Droit de la responsabilité et des
—
contrats: Dalloz, 2008-2009, §944,p. 937. F.-X. Train, Les contrats liés devant l’arbitre
du commerce international: LGDJ 2003).
Dans ce cadre précis, l’arbitre s’est attaché, dans un premier temps, à rechercher l’exis¬
tence de l’unité économique de l’opération, à savoir la distribution des produits visés sur les
territoires définis.
Il constate d’abord l’absence de tout formalisme dans l’exécution des contrats en raison
même du mode de fonctionnement du groupe Y qui s’est mis en place progressivement.
C’est ainsi que la défenderesse n° 1 s’est substituée dans l’exécution de l’ensemble des
contrats conclus avec le demandeur à partir de 1994 « globalement, sans distinction, pour
l’ensemble des marques et sur les deux territoires » avec la collaboration de la société de
marketing YF. C’est cette dernière, sous le contrôle de la défenderesse n° 1, qui s’est
chargée de la réception et de l’exécution de l'ensemble des commandes qui a permis
principalement de connaître le nombre de cartons demandés pour chacune des marques,
quel que soit le contrat.
De la même manière, c’est la société YA qui s’est chargée de la facturation et de
l’expédition globale des produits quelles que soient la marque et la destination, sans aucune
distinction des contrats. Elle a ainsi « délégué à la [défenderesse n° 1] l’exécution des
contrats la concernant et n 'est, de ce fait, plus en contact avec le distributeur M. [X.], que

ce soit directement ou même indirectement par l’intermédiaire de [YFJ. La relation con-
tractuelle avec M. [X.] est donc détachée de [YA] à partir de 1994 et désormais assurée par
la [défenderesse n° 1], Il importe peu que la [défenderesse «° 1] consulte encore [YA] sur
certaines décisions affectant le budget. Les relations entre la [défenderesse n° 1], [YF] et
[YA] ne relèvent que de l’organisation interne du groupe Y ».
Il en est de même pour les paiements qui sont effectués par le demandeur « pour la
totalité des livraisons, quelles que soient les marques des [produits] et les territoires. La
pratique des parties était donc de globaliser les facturations et les paiements, à charge
pour les filiales du groupe [Y] d'effectuer les répartitions entre elles ».
L’arbitre observe ensuite que la fin des relations d’affaires avec le demandeur a été
décidée à l’initiative de la défenderesse n° 1 pour conclure à l’indivisibilité du litige qui est
soumis à arbitrage.
Même si chacune des sociétés contractantes a pris la précaution de résilier séparément
son contrat par voie d’huissier, c’est le « conseil d’administration de la [défenderesse n° 1]
qui a décidé de mettre fin à l ’ensemble des rapports contractuels avec le demandeur, y
compris le contrat [a] de 1980. Dans sa lettre du 4 mars 1998, la [défenderesse n" 1]
manifeste clairement son intention d 'assumer la responsabilité de la rupture des relations
contractuelles (...). La [défenderesse n° 1] qui se pose ici comme responsable de la
■
décision, indique clairement que c'est son conseil d 'administration qui a pris la décision de
résilier les contrats ( . . . ) Il résulte, en outre, des écritures des défenderesses, que c'est la
[défenderesse n° 1] qui a pris l’initiative de la rupture et que [YA] et la [défenderesse n° 2]
ont pris cette décision à la suite de la [défenderesse n° 1], Les circonstances de la résilia¬
tion démontrent que les relations d’affaires ont pris fin, à l'initiative de la [défenderesse
n° 1], par la résiliation simultanée de tous les contrats encore en vigueur. Les causes et les
circonstances de ces résiliations étant les mêmes, il n 'apparaît pas possible de diviser le
présent litige, qui porte sur les conditions dans lesquelles les contrats ont été résiliés, entre
ce qui relève du contrat a 1980, seul contrat à ne pas comporter de clause compromissoire,
et ce qui relève des autres contrats ».
Une fois constatée l’unité économique de l’opération et l’indivisibilité du litige né de la
résiliation des contrats, l’arbitre a recherché si la volonté des parties était d’appliquer la
clause compromissoire à l’ensemble contractuel.
L’arbitre a répondu par l’affirmative en considération des relations d’affaires entre les
parties qui ont évolué progressivement avec le temps sans qu’elles aient toujours éprouvé le
besoin de formaliser ces évolutions par des écrits. Le cadre contractuel s’est constitué par
« ajouts successifs de contrats conclus et amendés au fil du temps ( ... ) Certains contrats
ont été transférés entre les différentes filiales du groupe [Y] sans que ces transferts soient
formalisés à l'égard du [demandeur]. De même, certains contrats sont remplacés par
d’autres, sans que leur résiliation soit formellement actée (...)».
Dans ces circonstances, les clauses compromissoires contenues dans les contrats (3 1996
pouvaient-elles s’appliquer à l’ensemble de la relation contractuelle, en vertu d’un accord
tacite ou exprès?
Comme indiqué par l’arbitre, « la présence quasi systématique de clauses compromis¬
soires dans les différents contrats s 'explique par une position générale du groupe [Y] en
faveur de l'arbitrage, dont la [défenderesse n° 1] a fait part au [demandeur] en 1994
( . . . )La [défenderesse n° 1] indique plus généralement que les contrats ont évolué et que
de nombreuses clauses sont devenues des clauses ‘standard’ dans les nouveaux contrats.
La [défenderesse n° 1] indique enfin qu 'il serait difficile de persuader le département
juridique de modifier des clauses qui ont été acceptées ailleurs. Cette déclaration révèle
l’intention de la [défenderesse n° 1] de renouveler et d'unifier sa relation contractuelle
avec le [demandeur], La clause compromissoire fait ainsi partie des clauses que la
[défenderesse n° 1] entend appliquer systématiquement.

Par télécopie en date du ( ... ) 1994, le [demandeur] répond: « je suis d'accord
pour l'arbitrage de la Chambre internationale de commerce de Paris ». L’accord du
[demandeur], donné à la suite des explications de la [défenderesse n° 1], doit s 'entendre
comme étant donné sur un recours général à l 'arbitrage CCI ».
La constatation d’un ensemble contractuel dont l’exécution est assumée par un groupe
de sociétés a été ainsi utilisée par l’arbitre comme un indice suffisant de la volonté des
parties pour justifier l’extension de la clause compromissoire, incluse dans deux des con¬
trats de l’ensemble contractuel, à la totalité de l’opération économique, y compris à un
contrat qui ne contient aucune clause de juridiction. En d’autres termes, l’unité de
l’ensemble contractuel permet d’étendre l’efficacité des clauses compromissoires prises
chacune séparément, à condition qu’elles ne soient pas incompatibles entre elles, voire de
palier le cas échéant l’absence de toute clause attributive de juridiction. La pluralité de
parties distinctes s’efface en raison de l’unicité de l’ensemble contractuel (V. en ce sens
I. Najjar, La notion d'ensemble contractuel in Mélanges A. Decocq: Litec, 2004, p. 510.
F.-X. Train, note ss CA Paris, lre ch. C, 21 févr. 2002: Rev. arb. 2002, p. 961; D. Cohen,
—
op. cit. p. 491).
Par ailleurs, l’arbitre s’est appuyé sur le principe de l’autonomie de la clause compro¬
missoire par rapport au contrat principal pour constater qu’elle « ne doit pas obligatoire¬
ment figurer dans tous les contrats auxquels elle s’applique. Un accord des parties sur
l'application de la clause compromissoire à ¡’ensemble contractuel suffit, sans qu'il soit
nécessaire que cette clause figure expressément dans chaque contrat. Or, lorsque les
parties se sont mises d'accord sur la clause compromissoire en 1994, les distinctions
entre les contrats conclus par les différentes filiales du groupe Y parties à ces contrats,
s'étaient déjà effacées au sein d 'une relation contractuelle unique et indissociable, gérée et
organisée par la [défenderesse n° 1], Cette dernière, qui a exigé l’adjonction des clauses
compromissoires, ne pouvait donc concevoir le recours à l'arbitrage, que comme s ’appli¬
quant à la réalité des relations contractuelles de l'époque, qui formaient un ensemble
indissociable. Au surplus la rédaction de la clause confirme que les parties ont entendu
en faire une application très large. Elle vise, en effet: « toutes contestations, tous problèmes
ou tous différends éventuels afférents au présent contrat ou y relatifs ( ... ) ». Cette
formulation indique que le champ de la clause compromissoire ne se limite pas strictement
au contrat dans lequel elle est contenue mais est susceptible de s 'étendre à des contrats
présentant un lien de connexité avec celui. En second lieu, il est difficile de concevoir que
les parties, qui ont géré leur relation contractuelle de façon globale et indifférenciée, aient
pu délibérément choisir de diviser les compétences juridictionnelles et arbitrales au sein de
cette même relation contractuelle ».
Si la volonté du groupe Y, et en particulier celle de la défenderesse n° 1, est certaine en
ce qui concerne l’application de la clause compromissoire, comme clause « standard » dans
les contrats conclus avec le demandeur, on peut s’interroger sur la volonté réelle ou impli¬
cite des parties d’appliquer la clause compromissoire insérée aux contrats P 1996 au contrat
a 1980 qui a été conclue plus de dix ans auparavant entre la société YA et le demandeur. Ce
doute est balayé dans l’espèce en raison des circonstances propres à l’affaire. L’existence
du groupe de sociétés, son mode de fonctionnement et l’implication de la défenderesse n° 1
dans l’exécution et la résiliation du contrat a 1980 dans le cadre d’une gestion globale de
l’ensemble contractuel établi avec le demandeur, ont permis à l’arbitre de surmonter la
difficulté et de dégager la solution retenue, au-delà même des différentes personnalités
juridiques et des contrats distincts. En l’absence de groupe de sociétés constaté, il semble
que l’accord de volonté des parties, fondée sur la seule existence d’un ensemble contrac¬
tuel, soit plus incertaine et peut être source de difficultés pour justifier l’extension de la
clause compromissoire contenue dans un contrat à un autre contrat non signé par la partie à
laquelle elle est opposée (V. Sentence CCI n° 10982 (2001): JDI 2005, p. 1255, note
Y. et B. Derains).
736 Reprinted from the Cluaet

i
1
-
La décision de l’arbitre reflète la solution matérielle dégagée par la jurisprudence fran¬

çaise dans les affaires Dow Chemical et Dalico mentionnées précédemment. On relèvera
également que l’interprétation de la volonté des parties et de l’autonomie de la clause
compromissoire a été faite par l’arbitre sans qu’il ait eu besoin de recourir aux dispositions
du droit applicable (droit djiboutien pour le contrat a 1980 et droit somalien pour les
contrats p 1996). La solution est conforme à la jurisprudence française qui n’exige pas
un consentement ou une extension contractuelle expresse dans ces cas précis. Elle peut se
justifier dans cette affaire mais elle ne doit pas être généralisée pour plusieurs raisons.
Chaque affaire est unique, et dans ce cas précis, la sentence a été rendue à Paris en appli¬
cation des stipulations du contrat, l’arbitre ayant constaté que « tant selon le droit de
Djibouti, que selon le droit somalien, les termes du contrat doivent « être scrupuleusement
respectés » ( ...) Les déterminations du tribunal arbitral sont donc, pour l’essentiel,
fondées sur les stipulations contractuelles, elles-mêmes, dont les parties ne contestent
pas la validité ». De ce fait, le raisonnement de l’arbitre a été rendu possible d’autant
plus que la jurisprudence française le permet. Or, la conception française sur la théorie du
groupe des sociétés ou le principe de l’autonomie de la clause compromissoire n’est pas
■s aussi largement suivie qu’on pourrait le penser dans la pratique arbitrale et judiciaire.
L’extension de la clause compromissoire fondée sur l’unité économique du groupe ou
sur l’ensemble contractuel donne encore lieu à des controverses. Comme constaté par le
professeur Vidal, « la pratique ne fournit pas d’exemple significatif de l’extension fondée
exclusivement sur l’unité économique du groupe (...) En définitive, il semble conforme
au droit positif de considérer que si l’appartenance à un groupe qui représente une unité
économique est un indice, ou une circonstance qui prédispose à l’extension, elle doit être
complétée par un autre critère » (V. D. Vidal, op. cit. p. 77 et 78.
— — V. également J -F.
Poudret et S. Besson, op. cit. § 254, p. 215. S. Wilske, L. Shore et J.-M. Ahrens, op. cil.
p. 85).
S. J.
C. T.-N.
—
Mots-Clés: Arbitrage international Chambre de commerce internationale —Groupe
de sociétés

s
Sentence rendue dans l’affaire CCI n° 13509 en 2006
Procédure arbitrale. —
Sentence arbitrale antérieure. — Autorité de chose
jugée. — Opposabilité à l’égard des tiers. — Amiable composition.
Un tribunal arbitral siégeant à Paris décide qu’il jouit d’une grande latitude pour
apprécier, sans être lié par la loi procédurale ou la loi du fond, l'autorité de chose
jugée d'une sentence arbitrale rendue à propos d'un même contrat, sur le fondement de
la même clause compromissoire, par un autre tribunal siégeant également à Paris, mais
entre des parties différentes, le demandeur à la seconde procédure succédant aux droits
contractuels du défendeur dans la première procédure. Après avoir refusé toute autorité,
négative comme positive à la sentence, les demandes, les causes, et les parties aux deux
procédures étant différentes, il estime qu’il n'est pas lié par l'interprétation du contrat
retenue par le premier tribunal.
Il ajoute que la première sentence est opposable au demandeur à la seconde procédure
mais uniquement en ce qu‘elle a fait naître des droits subjectifs au profit de son adversaire
et non pour l’interprétation qu’elle a donné du contrat.
La présente affaire opposait deux sociétés liées par un contrat (le « contrat ») qui avait
pour objet d’organiser leur relation dans le cadre d’une filiale commune. Cette filiale, dont
elles contrôlaient chacune 50% des parts exploitait une usine conçue pour fabriquer un
produit intermédiaire, utilisée par les deux associées pour leur production finale.
Le contrat était soumis au droit français; conformément à la clause compromissoire y
figurant, le Tribunal arbitral siégeait à Paris et était investi de pouvoirs d’amiable
compositeur.
La demanderesse X. reprochait principalement à Y. d’avoir exporté une partie de la
production de l’usine hors d’Europe, en violation, selon elle, d’une limitation géographique
contractuelle dans l’usage du produit intermédiaire résultant nécessairement de la conjonc¬
tion de certaines stipulations du contrat. Elle lui reprochait également de ne pas l’avoir
informée à l’avance de décisions relatives à la gestion du personnel et donc de ne pas l’avoir
mise en situation de constituer un stock suffisant avant que ne se déclenche la grève que ces
décisions devaient entraîner.
En réponse, Y. invoquait, à titre principal, une sentence antérieurement rendue dans un
litige l’opposant à Z., son associé et cocontractant initial auquel X. avait succédé dans le
contrat et à qui elle avait acheté sa participation dans la filiale commune à une date où la
première procédure arbitrale était toujours pendante. Les premiers arbitres ayant jugé que
les dispositions du contrat invoquées à l’époque par Z. — les mêmes que celles invoquées
par X. dans la seconde procédure - « ne contiennent aucune stipulation ayant pour effet de
restreindre la production, la vente, la commercialisation ou l’usage » de la production de
l’usine, Y. demandait au Tribunal arbitral de se dessaisir sur le fondement de l’autorité de la
chose jugée attachée à la première sentence ou subsidiairement sur celui de son oppos¬
abilité à X.
Examinant cette question, le Tribunal s’interroge en premier lieu sur la loi applicable à
l’autorité de la chose jugée des sentences:
« Le Tribunal arbitral considère, comme les parties, qu 'il jouit d’une très grande
latitude. Le droit français constituera pour lui, sans le lier, une importante source
d’inspiration. Cela est justifié tout d’abord par le fait que le siège du Tribunal est
en France, que la sentence dont l’autorité est invoquée a été rendue en France, et
que le droit applicable au fond dans les deux instances est le droit français. Par
ailleurs, le Tribunal observe que les parties se sont toutes deux référées, sinon
toujours aux règles précises du droit français, du moins aux conceptions françaises

fondamentales en la matière. C’est ainsi par exemple que Y, dans son mémoire en
défense, s 'est référée à la distinction que connaît le droit français entre autorité de
chose jugée et opposabilité, et a invoqué, outre la «jurisprudence » arbitrale, la
seule jurisprudence française en matière d'opposabilité des sentences arbitrales;
X. a répondu sur le même terrain.
Le Tribunal arbitral, sans être lié par le détail des règles françaises, considère
qu'il est souhaitable qu'il se place sur le terrain qui a été celui commun aux deux
parties dans leur échange d’arguments, à tout le moins pour déterminer les con¬
cepts de base qui doivent prévaloir. »
Quant à la portée de l’autorité de la chose jugée, Y. invoquait une triple identité de
demandes, d’arguments et pièces, et de parties, entre les deux arbitrages. Le Tribunal se
prononce dans les termes suivants:
« Cette triple identité évoque celle qu'opère le droit français aux termes de l'article
1351 du Code Civil: que la chose demandée soit la même; que la demande soit
fondée sur la même cause, et que la demande soit entre les mêmes parties.
La situation n 'est cependant pas la même que celle qu'envisage l'article 1351
du Code Civil français. Ce texte concerne ce que l’on appelle parfois l’autorité
négative de chose jugée, et que le défendeur invoque au soutien d’une 'exception’
de choses jugée, plus justement qualifiée, selon la doctrine, de fin de non-recevoir à
la demande nouvelle. L 'autorité négative de chose jugée paraît proche de l 'insti¬
tution de common law dénommée cause of action estoppel.
C’est d’une façon très artificielle que Y. cherchant à s 'exprimer dans les termes
classiques de l 'autorité négative de chose jugée demande au Tribunal arbitral de se
« dessaisir » des demandes deX.: ( ... ). Ni la chose demandée, ni la cause de la
demande, ne sont les mêmes dans les deux instances.
Ce que Y. tente en réalité de faire, est de mettre en échec la demande de X. en
privant celle-ci de son argument fondamental, tiré de son interprétation des arti¬
cles (...) et (...) du contrat: cette interprétation a été rejetée par la (première
sentence], et ce qui a été ainsi jugé ne pourrait plus être contesté, même dans le
cadre d'une instance ayant un autre objet.
L’autorité de chose jugée qu'invoque ainsi Y. est ce que la doctrine appelle
l 'autorité positive de chose jugée; positive, dans la mesure où son objet n'est pas de
mettre obstacle au renouvellement d'un procès, mais avant tout de permettre à une
partie de se prévaloir, à l‘encontre de son adversaire, de la position déjà consacrée
dans un précédent jugement (ou une précédente sentence), position sur laquelle
elle peut dès lors s 'appuyer dans le cadre de son argumentation. Quoique positive
en ce sens, cette forme de l’autorité de chose jugée présente aussi un aspect négatif
car elle interdit à la partie adverse de contester ce qui a été jugé. Les droits de
common law consacrent une telle autorité sous le nom d'issue estoppel ou
collateral estoppel.
Quoique certains auteurs la nient, la distinction entre autorité négative et auto¬
rité positive de chose jugée apparaît réelle. Les conditions auxquelles elles sont
soumises ne sont d'ailleurs pas les mêmes; si l'identité de parties s'impose dans les
deux cas, en revanche les conditions d 'identité de la chose demandée et d'identité
de la cause de la demande ne sont pas exigées pour l'invocation de l'autorité
positive: par hypothèse on se prévaut de celle-ci de façon incidente, dans le
cadre d’une instance dont l'objet est différent.
Ainsi, tandis que la chose jugée par la [première sentence] n 'est pas de nature à
justifier une irrecevabilité des demandes de X. (ou un « dessaisissement » du
Tribunal arbitral à leur égard, comme l'exprime Y., l’autorité positive attachée
...
à l 'interprétation qu 'elle donne des articles ( )et( ... )du Contrat pourrait, si
les conditions en sont remplies, faire obstacle à ce queX. fonde son argumentation
sur une interprétation différente de ces clauses.

;
La première de ces conditions est que la notion même d'autorité positive de

chose jugée ait sa place dans le droit de ¡'arbitrage international.
A cet égard, le droit français ne fournit guère d’élément de réponse. Même dans
le domaine voisin, de l'autorité positive des jugements, il traduit des hésitations.
(...) Le Tribunal arbitral est sensible au fait que lorsqu'un point a été discuté
contradictoirement entre deux parties au cours d'une instance arbitrale, il n 'est
guère justifié que la solution énoncée dans la sentence soit remise en cause, même
dans le cadre d’une autre instance, dès lors que celle-ci oppose les mêmes parties.
Cela se traduirait par un coût en termes de temps et d’argent, et risquerait de
déboucher sur une contradiction entre les solutions retenues par les deux sen¬
tences. En sens inverse on peut faire valoir, en premier lieu que le second tribunal
arbitral, spécialement investi d’une mission par les parties, doit jouir de la même
4 liberté, à chaque étape de son raisonnement, que celle dont a joui le premier
tribunal arbitral (en ce sens, V. P. Mayer, Litispendance, connexité et une chose
jugée dans l’arbitrage international in Liber atnicorum Claude Reymond: Litec,
2004, p. 198); en second lieu, qu'une partie pourrait avoir décidé de ne pas former
de recours contre une décision parce qu‘elle se satisfaisait du dispositif de celle-ci,
tout en étant en désaccord avec l’un de ses motifs dont elle n’imaginait pas que
l’autorité serait susceptible de lui nuire par la suite (en ce sens, V. J. Héron, Droit
judiciaire privé, 2e éd., par Th. Le Bais E. J. A. 2002, n° 347, p. 262). Ces deux
considérations militent pour refuser, même entre parties identiques, toute autorité
aux simples motifs des sentences.
En revanche, lorsqu'est invoqué, comme en l’espèce, un élément du dispositif
consacrant une interprétation du contrat, il est naturel de le considérer comme
l'objet même de la sentence, et l’interprétalion retenue s’impose dès lors aux
parties et aux arbitres successifs ayant à connaître du même contrat (en ce sens
P. Mayer, op. cit., p.199); ¡’interprétation s'incorpore, 's’intègre’ en quelque sorte
dans le contrat comme l’ont soutenu à l’audience du (...) les Conseils de Y. Le
tribunal arbitral estime donc que le chef du dispositif de la [première sentence]
dont se prévaut Y est susceptible, par sa nature, de voir son autorité invoquée dans
la présente instance.
Encore faut-il, et c’est une seconde condition, que les parties aux deux instances
soient les mêmes. (...)»
À cet égard, Y. qui étaitpartie aux deux instances, faisait valoir plusieurs arguments dont
deux seulement méritent d’être relevés, les autres étant purement factuels. Elle soutenait en
premier lieu que X. ne succédait pas à Z. « pour l 'avenir » mais venait aux droits de Z. en se
substituant purement et simplement à elle dans le contrat; elle en déduisait que l’inter¬
prétation du Contrat par les premiers arbitres devait s’imposer à X. S’interrogeant sur le
bien fondé de cette conclusion, le Tribunal répond dans les ternies suivants:
« La réponse serait certainement affirmative si la [première sentence] avait été
rendue avant la cession. X. aurait succédé à Z. dans la position contractuelle de
celle-ci vis-à-vis de Y. telle que précisée par les termes mêmes du contrat et par
l’interprétation de celui-ci retenue par la sentence. Du fait de la cession, X. serait
mise dans la situation juridique de Z. au regard de l’autorité de chose jugée
attachée au chef de la sentence, relatif à l'interprétation du contrat. La situation
ne serait pas différente si, au lieu qu’une sentence ait été rendue, les parties étaient
convenues entre elles avant la cession, par un avenant au contrat, de retenir une
certaine interprétation d’une clause contractuelle.
Le problème qui naît du déroulement chronologique véritable des faits tient à ce
que la cession est intervenue au cours de l’instance [qui s’est conclue par la
première sentence], dont l'existence était connue par toutes les parties, mais
avant que la sentence ne soit rendue dans cette affaire.

X. invoque une jurisprudence de la Cour de cassation française qui concerne

une situation similaire. ('...)
Ainsi qu'il à été dit précédemment le Tribunal arbitral n 'est pas tenu de faire
application des principes ainsi adoptés en droit français, mais il peut s 'en inspirer
dès lors qu’ils lui paraissent raisonnables.
Le Tribunal arbitral partage le sentiment du commentateur anonyme de ces
arrêts, dont l’opinion a été produite par X. comme pièce (...): selon celui-ci
« cette jurisprudence est saine car elle évite ainsi de poursuivre une procédure
contre une personne qui n’ étant plus titulaire du droit, sera moins intéressée dans
sa défense, et d'opposer ensuite ce résultat à la partie qui n’a pu se défendre
utilement. ». En l’espèce il est certain qu’à partir de la cession la personne la
plus intéressée à faire prévaloir son interprétation du Contrat n 'était plus Z
mais X.
Cette jurisprudence paraît également conforme à la logique juridique d'une
cession de droits contractuels. Le cessionnaire succède à la situation juridique du
cédant, telle qu'elle existe à l'instant de la cession. Si, à cet instant, l’étendue des
droits du cédant était incertaine, la même incertitude affecte les droits du cession¬
naire; s 'ils sont litigieux, le cessionnaire a vocation à les faire déterminer dans une
instance à laquelle il sera lui-même partie. Pas plus qu'un avenant au contrat objet
de la cession, ne lierait le cessionnaire qui ne serait pas intervenu dans sa con¬
clusion, une sentence arbitrale interprétant le contrat, intervenue après la cession
sans que le cessionnaire ait été représenté à l 'instance n 'a pas d’autorité à l’égard
de ce dernier.
(...)
Le Tribunal arbitral ne voit pas non plus de contradiction dans l'attitude pro¬
cédurale de X. dénoncée par Y. à l’audience du ( ... ) [estimant incompatible
l’invocation d’une convention d’arbitrage et le refus de tenir compte d’une
sentence rendue sur le fondement de cette même convention]. Le fait qu’une per¬
sonne soit partie à une convention d'arbitrage l’habilite à former toute demande
qu’elle souhaite, dès lors qu 'elle entre dans le domaine couvert par cette conven¬
tion, mais ne confère aucune autorité à son égard, à une sentence rendue à l’issue
d'une procédure initiée sur le fondement de cette même convention, mais à laquelle
elle n a pas participé.
Y. soutenait également que X. aurait perdu le droit de se considérer comme tiers
à la sentence dès lors qu’elle aurait pu intervenir volontairement à la procédure et
ne l’a pas fait. Cet argument est également rejeté.
« Il convient tout d 'abord d 'observer qu 'il existe une différence entre avoir été
partie à une procédure et avoir eu la possibilité de l'être, sans l 'avoir été en réalité.
Pour que la seconde situation soit assimilée à la première, il faudrait que la non¬
intervention soit considérée comme contraire à un devoir d’intervenir, ou à tout le
moins comme un comportement gravement anormal, entraînant la déchéance du
droit de se prévaloir de la position de tiers.
Tel n'est pas le cas, aux yeux du Tribunal arbitral. Le cessionnaire, même s'il est
informé (comme en l'espèce) du litige opposant le cédant à un tiers, et dont le
résultat le concerne, peut avoir des motifs légitimes de ne pas y intervenir.
L'intervention volontaire dans un arbitrage, et spécialement dans un arbitrage
CCI, soulève de surcroît des difficultés particulières.
En premier lieu, la recevabilité même d’une telle intervention est douteuse. Le
rapport final établi par un groupe de travail de la CCI présidé par Af Jean-Louis
Devolvé a énoncé sans équivoque: « Once the Court has taken its initial decisions
to set the proceedings in motion, voluntar}’ intervention or joinder of a third party
by a claimant requires the agreement of all the parties » (ICC Court Bulletin, vol. 6
n° 1 [1995], p. 34). Bien que cette opinion puisse être discutée (V. par ex Y. Derains

i
et E. Schwartz, A Guide to the ICC Rules of Arbitration (...), 2“ ed. 2005, p. 54)
elle est revêtue d’un caractère quasi officiel qui peut avoir légitimement dissuadé
une partie de poursuivre la voie opposée. OrX. ne pouvait guère s’attendre à ce que
Y. consente à son intervention. ( ... )
En second lieu, il était également légitime que X., tenant de la clause compro¬
missoire CCI à laquelle elle était devenue partie, le droit de participer à la con¬
stitution de tout tribunal arbitral ayant à connaître d’une demande formée par elle
ou contre elle, ne souhaite pas y renoncer en se portant partie intervenante devant
un tribunal déjà constitué. »
Ayant déterminé que X. était un tiers par rapport à la première procédure arbitrale et
ayant conclu que la première sentence est dénuée d’autorité de chose jugée à son égard, le
& Tribunal est amené à s’interroger sur l’opposabilité de cette dernière aux tiers et donc à X. Il
y- statue dans les termes suivants:
«Appliquer [la notion d’opposabilité] ait chef du dispositif d 'une sentence arbitrale
dont l 'objet est d 'interpréter une clause d 'un contrat nécessite de bien préciser ce
que sont l’acte d'une part, les droits d’autre part, qui sont opposables «ta tiers, et
quels sont les effets de cette opposabilité.
— l'acte opposable aux tiers est la sentence, et plus précisément le chef du
dispositif relatif à l’interprétation. Il est donc exact que X. ne peut méconnaître ni
l'existence de la [première sentence] ni les effets juridiques qui sont attachés aux
divers chefs de son dispositif.
— s'agissant du chef du dispositif relatif à l’interprétation de certains articles
du contrat, son effet juridique est de préciser les droits et obligations respectifs,
découlant de cette interprétation, des deux parties au contrat qui ont soumis au
Tribunal arbitral la question de l’interprétation. Ce sont ces droits et obligations
qui sont opposables aux tiers. X. ne pourrait donc, en raison de cette opposabilité,
soutenir que Z avait le droit de s’opposer à des exportations par Y. ( ... ) hors
d’Europe. En revanche, la question de savoir si X. peut invoquer un tel droit pour
elle-même n’a pas été tranchée. L’opposabilité aux tiers ne peut avoir pour effet
d’affecter directement les droits et obligations des tiers, seraient-ils déduits du
même contrat. Soutenir le contraire reviendrait, sous prétexte d’opposabilité à
étendre l’autorité de choses jugée aux tiers, au mépris de son caractère relatif.
Il en résulterait, par exemple, cette conséquence insoutenable que, en cas de
pluralité de parties à un même contrat, il serait au pouvoir de deux de ces parties
d’adopter entre elles une certaine interprétation d’une de ses clauses, ou de faire
adopter par un tribunal une telle interprétation à l’issue d’une procédure à laquelle
nul ne serait invité à participer ni en mesure d’intervenir, et de prétendre que cette
interprétation s'impose aux autres parties au contrat. L’effet relatif des conven¬
tions dans le premier cas, l’autorité relative de chose jugée dans le second s 'oppo¬
sent à une telle conséquence, qui dépasse la notion d'opposabilité parce qu 'elle
affecte directement les droits et obligations de tiers.
(...)
Le Tribunal arbitral conclut que l’opposabilité de la Première sentence qui
s'impose à X. comme à tout tiers, n'a pas pour conséquence de priver celle-ci du
droit défaire valoir sa propre interprétation du contrat, dans la mesure où de cette
interprétation dépendent ses propres droits et obligations et non ceux de Z. »
Y. ayant fait valoir que la tierce opposition est exclue par le droit français de l’arbitrage
international, le Tribunal s’interroge sur la portée de cette règle quant à l’opposabilité des
sentences à l’égard des tiers. Il observe ce qui suit:
« Cette exclusion n 'entraîne pas, cependant, l’impossibilité pour un tiers de se
prévaloir, à l’encontre de celui qui invoque contre lui l'autorité d'une sentence de
sa qualité de tiers. ( . ..)
Reprinted from the Cliinet 743

II n'est d’ailleurs pas imaginable que le législateur ait voulu, en écartant

la tierce opposition en matière internationale, priver par là tout tiers de
la possibilité d’invoquer sa qualité, transformant ainsi l’autorité relative de
chose jugée en autorité absolue, et méconnaissant en même temps le principe
de la contradiction, »
Après s’être aussi prononcé en droit, le Tribunal s’interroge sur le caractère équitable de
la conclusion à laquelle il a abouti. Il rappelle en effet que les parties lui ont confié les
pouvoirs d’amiable compositeur et que « selon la doctrine majoritaire en France (...),
les arbitres sont par là autorisés à faire prévaloir sur toute autre considération ce que
requiert la justice au cas d’espèce, autrement dit: l 'équité ». Il fait à cet égard les observa¬
tions suivantes:
«(...) il serait particulièrement inéquitable, compte tenu des conditions dans
lesquelles la question de l’interprétation des articles (...) et (...) du contrat a
été soumise au premier tribunal arbitral de priver X. de l 'examen par le présent
Tribunal de sa propre argumentation.
Il convient en effet de rappeler que dans un premier temps (c 'est-à-dire dans sa
requête d'arbitrage et dans l’acte de mission) Y., alors opposée à Z., avait elle-
même considéré que le Contrat comportait une restriction géographique, dont elle
contestait seulement la licéité; elle ne demandait pas au tribunal arbitral de se
prononcer sur l’interprétation ducontrat. C'est seulement le (...), soit deux mois
après la cession des parts de Z. àX. que Y. a déposé un mémoire en réplique dans
lequel elle formulait une nouvelle demande [c’est-à-dire une demande de dire et
juger d’une part qu’il n’existait pas de limites géographiques contractuelles à la
vente des produits et une demande d’interprétation d’un terme contractuel de nature
à avoir une incidence sur l’objet du Contrat et les caractéristiques des produits finis
auxquels la production de Tusine était destinée],
Cette demande était de nature à affecter bien davantage, s'il y était fait droit, la
situation de X. qui devenait le partenaire de Y. que celle de Z. qui cessait de l'être. Il
en est d’autant plus ainsi que cette nouvelle demande de X était présentée, non
comme un élément d'une démonstration devant permettre d’établir une violation
par Z, dans le passé, des droits contractuels de Y. et partant de justifier une
condamnation de la première à verser des dommages-intérêts à la seconde,
mais, bien au contraire comme une conséquence de ces violations, accompagnant
la condamnation à payer des dommages-intérêts: le Tribunal arbitral était dès lors
invité à faire droit à cette demande dans son dispositif, sans pour autant qu 'y soient
attachées à leur tour de nouvelles conséquences intéressant directement Z. soit
pour le passé, soit pour le futur. L'objectif de Y. était ainsi, clairement, de voir
consacrer dans le dispositif de la sentence une interprétation du Contrat qu 'elle
tenterait d’imposer, au nom de l’autorité de chose jugée, à X. sans pour autant
— —
inviter celle-ci c’est le moins que l’on puisse dire à participer à l’arbitrage.
Dans ces conditions X. était la principale, sinon l’unique partie intéressée à ce
que la difficulté d'interprétation des articles ( ... ) et ( ... ) du Contrat soit
tranchée par un tribunal. Y. s’étant opposée aux diverses tentatives de X. pour
que celle-ci puisse être associée à la défense de son interprétation, il serait cho¬
quant qu 'elle puisse à présent se prévaloir de l’interprétation favorable à sa thèse
qu 'elle a obtenue du premier tribunal arbitral. Cela consacrerait une violation
caractérisée des droits de la défense de Y
Le Tribunal examine donc les demandes au fond des parties et adopte pour l’essentiel
une position identique à celle du premier tribunal.
Quant à la prétendue limitation à l’Europe, le Tribunal rejette l’interprétation de X. en
observant que « la seule lecture des articles du Contrat invoqués par X. conduit à conclure
744 Reprinted from the Climet

si

que l'objectif des parties, en décidant de réaliser ensemble le projet (. . .), était de
produire [le produit intermédiaire], prioritairement pour leurs besoins de production de
[produit fini] en Europe, mais sans exclure pour autant des utilisations en dehors d 'Europe
». Il ajoute après avoir examiné différents faits évoqués par X., notamment qu’elles n’aient
pas procédé à des exportations hors d’Europe pendant de nombreuses années après la
conclusion du contrat, ou que Y. avait initialement admis l’existence d’une limite géo¬
graphique contractuelle tout en contestant la validité au regard du droit de la concurrence,
que la conduite des parties, postérieurement à la conclusion du contrat ne permet pas de
faire valoir une interprétation différente de celle qui résulte de sa lettre même.
Le Tribunal se prononce par ailleurs sur la demande d’interprétation présentée par Y.,
après l’avoir déclarée recevable dans les termes suivants:
« Les limites à la recevabilité des demandes de nature déclaratoire que connaît le
droit français en matière judiciaire ne s'imposent pas dans le cadre d'un arbitrage
international. Dès lors qu 'il existe un désaccord entre les parties sur l 'interpréta¬
tion de leur contrat, qu 'il entre dans le champ de la convention d'arbitrage, et que
l 'une des parties veut le faire trancher par un tribunal arbitral, il entre bien dans la
mission de celui-ci de donner satisfaction à cette partie. »
Enfin, le Tribunal constate un manquement à son obligation de loyauté de la part de Y.
en gardant pour elle des informations relatives à la gestion du personnel qui, si elle n’avait
pas été cachée à X., l’aurait conduite à compléter son stock en anticipation de la grève que
ces difficultés ont provoquée. Jugeant toutefois que X. n’établissait pas l’existence de son
préjudice, il rejette sa demande d’indemnisation.
Pour chacune de ces décisions, le Tribunal prend soin de justifier qu’elles sont con¬
formes à l’équité.
NOTE. — —I. La question de l’autorité de la chose jugée des sentences est récurrente
en matière d’arbitrage international et fait depuis quelques années l’objet de travaux doc¬
trinaux (V. B. Hanotiau, L’autorité de la chose jugée des sentences arbitrales, in
l'arbitrage complexe: questions de procédure: Bull, de la Cour internationale d'arbitrage
de la CCI, supplément 2003, p. 45. — D. Hascher, L’autorité de la chose jugée des
sentences arbitrales: Travaitx comité fr. DIP 2000-2002, p. 17 et les sentences citées).
De nombreuses sentences arbitrales ont reconnu que des sentences antérieures bénéficient
de l’autorité de la chose jugée; un certain nombre de lois nationales le précise d’ailleurs
expressément, dont la loi française qui décide que: « la sentence arbitrale a dès qu 'elle
est rendue l 'autorité de la chose jugée relativement à la contestation qu 'elle tranche »
(CPC, art. 1476 et 1500). L’observation n’est pas surprenante tant il est vrai que l’autorité
de la chose jugée paraît universelle dans son principe et nécessaire à la sécurité juridique en
interdisant la remise en cause de situations juridiques définitivement acquises. Certaines
sentences en acceptent d’ailleurs le principe sans même s’interroger sur son fondement
(V. notamment Sentence n° 6233 de 1992 dans laquelle on peut lire que « The defendant is
right, however, in arguing that the requestwhich was submitted to the arbitral tribunal may
not lead, directly or indirectly, to changing the awards that were rendered. The arbitral
tribunal must indeed respect the res judicata effect of the two awards »: Recueil des
sentences arbitrales de la CCI 1991-1995, par J-J. Arnaldez, Y. Derains et D.
Hascher). La sentence commentée, qui consacre à la question une analyse particulièrement
complète quant au droit applicable, aux conditions et à la portée de l’autorité de la chose
jugée est donc du plus grand intérêt. Quant à la première question, certaines sentences ont
décidé que l’autorité de la chose jugée aurait une nature processuelle et devrait être appré¬
ciée selon la loi de procédure de l’arbitre qui se prononce sur cette autorité. Selon une
seconde série de sentences, elle relèverait du droit du fond. Pour d’autres enfin, l’autorité de
la chose jugée relèverait d’une règle matérielle (D. Hascher, op. cit.). Le tribunal décidant «
qu’il jouit d’une très grande latitude » pour déterminer les règles applicables et que le droit
Reprinted from the Chine t 745

français ne constitue qu’une source d’inspiration, en dépit du fait que le siège comme celui
du tribunal ayant rendu la sentence invoquée était situé en France et que le droit applicable
au fond était le droit français, la sentence semble devoir être rangée dans la troisième
catégorie. La sentence est également intéressante en ce qu’elle distingue entre autorité
négative et positive de la chose jugée. On sait que la première interdit à une partie de faire
rejuger un litige définitivement tranché et exige une identité de parties, de causes et de
demandes. Estimant que ces trois conditions n’étaient pas satisfaites, le tribunal s’interroge
sur la possibilité de retenir une autorité positive de la chose jugée — qui permettrait à une
partie lorsque les conditions d’identité de causes et de demandes ne sont pas remplies de se
prévaloir vis-à-vis de l’autre des faits et qualifications retenus dans une autre décision,
judiciaire ou arbitrale — et apporte une réponse théorique positive mais prudente à la
question. La sentence cherche en effet à concilier deux préoccupations classiques de la
jurisprudence arbitrale: d’une part, la nécessité d’éviter une contradiction de décision entre
sentences et, d’autre part, à préserver la liberté de décision des seconds arbitres et veiller à
ce que les parties se soient complètement exprimées sur une question qui a pu leur sembler
secondaire dans le cadre de la première procédure. En l’espèce, le tribunal admet que
l’interprétation contractuelle retenue par les premiers arbitres, incorporée au dispositif,
s’intégre au contrat et à ce titre aurait été de nature à bénéficier de l’autorité de la
chose jugée si les parties aux deux instances avaient été les mêmes, ce qui n’était pas le cas.
—
n. Ayant refusé toute autorité de chose jugée à la première sentence, le tribunal était
conduit à s’interroger sur son opposabilité au demandeur. Distinguant la notion d’oppos¬
abilité de celle d’autorité de la chose jugée, il juge que la première ne porte que sur l’effet
substantiel de la première sentence, c’est-à-dire la situation juridique créée ou constatée par
la première sentence. L’opposabilité de cette dernière interdisait donc de remettre en cause
le droit subjectif que le défendeur avait acquis vis-à-vis de son adversaire dans la première
sentence d’utiliser librement les produits litigieux partout dans le monde, elle n’interdisait
pas que le nouveau demandeur, devenu partie au contrat avant que la première sentence ne
soit rendue, puisse contester l’interprétation du contrat qui avait conduit le premier tribunal
à cette conclusion. On notera que la sentence contraste sur ce point avec un arrêt récent de la
Chambre commerciale de la Cour de cassation; au motif que « si une sentence arbitrale n’a
autorité de la chose jugée qu’eu égard au litige qu’elle tranche, elle n’en est pas moins
opposable au tiers », elle a décidé qu’une sentence, rendue entre un franchisé et son ancien
franchiseur, jugeant que le premier s’était à tort considéré comme libéré de son contrat de
franchise et le condamnant à des dommages-intérêts, était opposable au nouveau franchi¬
seur qui ne pouvait à nouveau soutenir que le premier contrat de franchise avait pris fin
(Cass, corn., 23 janv. 2007: JurisData ri32007-037125; Rev. arb. 2007, p. 769, note crit.
P. Mayer).
—
HI. Aux termes de la convention d’arbitrage, les arbitres, siégeant à Paris, étaient
investis des pouvoirs d’amiable compositeur et on sait que la jurisprudence française, saisie
dans cette hypothèse d’un recours en annulation, vérifie que les arbitres ont effectivement
tenu compte de l’équité (pour des décisions récentes et un état de la portée du contrôle
exercé, V. CA Paris, lre ch. C. 4 déc. 2003 et 15 janv. 2004: JurisData n° 2004-021783;
Rev. arb. 2004, p. 907, noteJ.-G. Betto. — Cass. ln cfv., 28 nov. 2007: JurisData n° 2007-
041619; Rev. arb. 2008, p. 99, note V. Chantebout). Il n’est donc pas surprenant que le
tribunal arbitral, s’il tranche en droit l’ensemble des questions qui lui sont soumises, prend
soin de préciser que les conclusions auxquelles il aboutit ne sont pas contraires à l’équité.
Les développements qu’il y consacre à propos de l’autorité de la chose jugée de la première
sentence ont été intégralement cités ci-avant. Quant à l’interprétation contractuelle qu’il
retient, le tribunal observe que « cette constatation, qui ( ... ) reflète la volonté réelle des
parties, non choquante en elle-même, ne saurait être jugée contraire à l’équité. ». De même
le tribunal, en rejetant la demande de dommages-intérêts soumise par le demandeur pour

y
défaut de préjudice, bien qu’il ait constaté la réalité de la faute contractuelle alléguée au
soutien de la demande, le tribunal observe ce qui suit:
« II est conforme à l'équité que la charge de la preuve d'un manquement d'une partie à
ses obligations contractuelles incombe à la partie qui s'en dit la victime, et il est conforme à
l'équité, si celle-ci n 'a pas satisfait à la charge qui lui incombait, qu 'elle ne puisse obtenir
ni dommages-intérêts ni condamnation sous astreinte de l'autre partie à mettre fin au
comportement qu 'elle dénonce. »
Ces motivations, pour sommaires qu’elles soient ne sont pas surprenantes. En effet, si
l’arbitre doit tenir compte de l’équité lorsqu’il en a reçu mission des parties, rien ne lui
interdit de maintenir la solution qu’il a dégagée en droit s’il estime qu’elle ne lui est pas
contraire.
B. D.
■ Mots-Clés: Arbitrage international - Chambre de commerce international - Procédure
arbitrale
'
Sentence arbitrale finale rendue dans l’affaire CCI n° 12305 en 2004
Procédure Arbitrale.
juridictionnelles. —
—
Pluralité de parties. Retrait d’objections
Prise en compte des actions des autorités de concurrence.
— Expertise. Contrat. —
Clause d’exclusivité.
Respect de formalisme accordé.
—
Devoir d’information. —
Contrat. — Option d’achat. — Présuppose la disponibilité du bien.
Contrat. Manquement grave. Déterminé à la lumière du
comportement des parties.
Dommages.
—
Frais d’arbitrage.
Quantification.
—
—
Répartition.
Preuve.
L 'affaire à l 'origine de cette sentence, rendue par un Tribunal Arbitral siégeant à Paris,
en application du droit belge, concerne deux groupes européens, qui ont envisagé une
collaboration dans le domaine des activités chaufoumières en Amérique du Nord, en Asie
et en Europe. Les parties ont conclu une lettre d 'intention en mars 1998 qui, trois mois plus
tard, aboutissait à la signature de trois protocoles d'accord, dont un de caractère général
et les deux autres portant sur l’Amérique du Nord et sur l'Asie.
Comme nous le verrons plus loin, au sujet de la demande reconventionnelle, il convient
de signaler que le « Protocole d’Accord Asie » prévoyait au sujet des frais que:
« Sans préjudice des accords particuliers à intervenir entre elles, les parties con¬
viennent que tous les frais propres à chaque partie (tels que, par exemple, les frais
de conseils, d'audits, etc.) seront supportés par la partie qui les a exposés. Les
parties partageront à parts égales les frais communs. Feront partie de ces frais
communs, à partager au sein de la Filiale Commune, les frais de prospection et de
développement engagés depuis deux ans par [la défenderesse] dans le Territoire,
dans la limite d’un montant approximatif de 2 millions de dollars US et sous
réserve de la fourniture à [la demanderesse] des justificatifs y afférents ».
Ce protocole fixait aussi une date butoir pour que les parties négocient et signent
l’ensemble des conventions complémentaires définitives nécessaires à sa mise en
œuvre. Aucune convention complémentaire définitive ne fut signée avant l’échéance
accordée par les parties.
La collaboration envisagée ne s’est finalement concrétisée qu’en Amérique du Nord. À
cet effet, « [u]ne convention . . . fut signée entre les deux groupes [laquelle] avait pour
objet ¡’organisation des apports des parties au sein de la Filiale Commune », la défender¬
esse assumant le contrôle avec une participation de 60%. Cette convention fut suivie
« [d’ujne Convention d’actionnaires fixant les rapports entre les partenaires ».
La sentence se réfère aux dispositions de la Convention les plus importantes, comme
suit:
« La Convention d’actionnaires . . . comporte un article 2 intitulé’Exclusivité ».
Les paragraphe 2.1 et 2.2 explicitent ce principe:
2.1 Chacune des parties s’engage à réaliser l’intégralité de ses Activités Chata
sur le Territoire [Etats-Unis et le Canada] exclusivement dans le cadre et par le
biais de la Filiale Commune . . .

2.2 En conséquence, chacune des parties s'interdit de développer des Activités

Chaux sur le territoire, . . . hors le cadre de la Filiale Commune.
Les paragraphes 2.4 et 2.5 prévoient des exceptions à ce principe pour les
nouveaux projets:
2.4 ... les parties s 'engagent à étudier ensemble tout projet de développement
pouvant mener à l'acquisition d’une Activité Chaux dans le Territoire . . . Tout
projet de développement sera préparé et présenté par la Direction Générale au
conseil d’administration. Ce dernier décidera alors de réaliser ou non ce dével¬
oppement. En cas de refus du conseil d'administration, aucune des parties ne
pourra procéder seule au développement du projet concerné sans l’accord de
l’autre partie.
et pour les activités accessoires:
2.5 .. . si le développement envisagé concerne une entreprise dont l’activité
principale n’est pas l’Activité Chaux ... la partie concernée s’engage, dès que
cela lui est possible compte tenu des exigences de confidentialité et de discrétion
que requiert ce genre d'opérations, à mettre officiellement au courant l'autre
partie de ce développement, par une communication au conseil d'administration
et à proposer à la Filiale Commune l'Activité Chaux accessoire de ce développe¬
ment à des conditions financières équivalentes à celles de l’acquisition de ce
développement. A défaut d’accord de l 'autre partie au sein de la Filiale Commune
sur la reprise par la Filiale Commune de cette Activité Chaux, la partie ayant fait
l'acquisition principale sera libre de conserver ladite Activité Chaux.
Enfin l'article 2.8 prévoit la sanction et dispose que si l'une des parties:
méconnaît de manière grave l’engagement d’exclusivité souscrit au titre des
articles 2.1 à 2.5 et ne prend pas, dans un délai d’un mois les mesures permettant de
remédier à cette violation dans un délai de six mois maximum ... la Partie Pré-
judiciée disposera . . . d’une option d'achat lui permettant d’acquérir la partici¬
pation de la Partie Défaillante dans la Filiale Commune . . .
selon la procédure décrite à l’article 6 qui prévoit la détermination de la valeur
de marché des titres vendus ».
De façon assez classique dans ce type d’opérations, les parties se sont aussi engagées à
ne pas céder leurs actions dans la Filiale Commune pendant une période de cinq ans. En
outre, chacune des parties dispose d’un droit de préemption sur les actions de l’autre. Sauf
accord des parties, la valeur de marché des titres de la Filiale Commune est déterminée
selon la procédure d’expertise prévue dans la Convention.
Selon ce que rapporte la sentence « [a]près la constitution de la Filiale Commune de
nombreuses difficultés sont apparues dans la gestion et le fonctionnement de cette dernière,
notamment celles liées à un manque d’information ou à une information tardive de [la
demanderesse] à l’occasion de la clôture des comptes des exercices 1999 et 2000 ». Ceci a
amené les parties à renégocier la Convention d’actionnaires pour, « compte tenu des con¬
séquences négatives de certaines acquisitions faites par la Filiale Commune et des diffi¬
cultés financières auxquelles elle était confronté », ajouter une disposition comme suit:
« (c j Toutefois, il est convenu entre les parties que compte tenu de la situation
financière de la Filiale Commune prévalant à fin juin 2001 et de l’opinion des
parties qu 'une durée minimale de trois années sera nécessaire pour aboutir à son
redressement, aucune nouvelle acquisition ni aucun nouvel emprunt ou crédit ne
sera réalisé(e) ou souscrit avant 2004, sauf accord contraire et exprès des parties.
A ce titre et pendant la même période, le financement de la Filiale Commune sera
assuré prioritairement par la voie de désinvestissements. Toutefois, cette voie de
désinvestissements ne sera pas retenue lorsque seront en cause des besoins de
financement mineurs et passagers. Les fonds issus des désinvestissements de la

L-r-: - i-, v i !ÿ:•ÿ; :...:-.:f::•:•-•• -: ■■ ■ ■■■/.y

Filiale Commune seront affectés prioritairement au désendettement de la Filiale
Commune. ».
En 2000, la demanderesse rendit publique une offre d’achat hostile de toutes les actions
d’un autre concurrent européen qui avait des actifs en Amérique du Nord. En vertu de la
Hart-Scott-Rodino Antitrust Improvement Act de 1 976, la demanderesse était tenue de
notifier cette OPA à la Federal Trade Commission des États-Unis (FTC). Suite à cette
notification et s’intéressant de près aux activités de la Filiale Commune, la FTC signifia à la
défenderesse une « subpoena duces tecum » et une « civil investigative demand ». La
sentence fait remarquer que « [a]fln de répondre ata questionnaires de la FTC, des con¬
tacts réguliers eurent lieu entre les administrateurs de [la Filiale Commune ] représentant
[la demanderesse] et ceux représentant [la défenderesse] ». L’OPA hostile échoua et la
r demanderesse retira son offre d’achat, entraînant la suspension des procédures pendantes
devant la FTC.
La sentence conclut à cet égard:
« Il résulte de ce qui précède, selon l'opinion du tribunal arbitral, que lors dé
l’OPA de [la demanderesse] ...
([la défenderesse] était au courant de ce développement (qui est d’ailleurs
public); (il n'est pas fait mystère que [la Filiale Commune] va acquérir le site
[objet de préoccupations de la FTC], si les autorités américaines de la concurrence
donnent leur accord;
(que [la demanderesse] ne s’oppose pas à cette acquisition;
(que tout au contraire les représentants de [la demanderesse] au conseil
d’administration de [la Filiale Commune] s'efforcent de démontrer que cette
acquisition ne nuira pas à l'état de la concurrence sur le marché de la chaux
dans tout ou partie du territoire américain;
(qu’enfin les deux parties collaborent à la rédaction des réponses à donner à la
FTC. ».
Quelques mois après l’échec de l’OPA hostile, celle-ci est renouvelée mais, cette fois-ci,
de manière amicale. Toutefois, concernant l’information donnée à cet égard par la deman¬
deresse à son partenaire, le Tribunal arbitral « constate que le 31 mai 2001 [la Filiale
Commune] a été officiellement informée par [la demanderesse] des conséquences de son
OPA sur X en ce qui concerne le site [objet des préoccupations de la FTC], mais tardive¬
ment et de manière lacunaire. Par contre, il est établi par les réponses de [la Filiale
Commune] à la FTC et après les réactions de Mme R. que la Filiale Commune est con¬
sciente des problèmes concurrentiels que risque de poser son acquisition du site [objet des
préoccupations de la FTC]. ».
Concernant la FTC, le Tribunal remarque que la FTC impose auxparties dans l’OPA, de
se séparer d’une certaine usine (dont le contrôle par la demanderesse risquait, aux yeux de
la FTC, de fausser la concurrence), leur interdisant en même temps de la vendre à la Filiale
Commune ou a d’autres concurrents identifiés par la FTC.
La demanderesse, son nouveau partenaire et la FTC se mettent donc d’accord pour
satisfaire les exigences de la FTC parmi lesquelles existait l’obligation de se séparer de
cette usine « après la clôture de l’acquisition » et imposait à la demanderesse de « signer
avec la FTC un'hold separate agreement’ qui lui faisait interdiction, jusqu'à la vente,
d’exercer tout contrôle sur [cette] usine ».
Lorsque la presse annonce que la demanderesse a acquis l’usine et qu’elle l’a ensuite
vendue à une autre société, la défenderesse « notifiait donc à [la demanderesse], en
application de l’article 2.8 de la Convention d’actionnaires de prendre, dans les six
mois, les mesures appropriées afin de réparer le préjudice subi par la Filiale
Commune ». Faute par [la demanderesse] d’apporter une solution « [la défenderesse]

menaçait d'exercer l’option d'achat sur les actions détenues par [la demanderesse] dans
[la Filiale Commune] à un prix égal à la valeur de marché telle que prévue à l’article 6. ».
Par la suite, et à travers ses avocats, la défenderesse exerce l’option d’achat prévue à
l’article 2.8 de la Convention. La procédure d’expertise est mise en marche sous les
protestations de la demanderesse. « Le dépôt de la procédure d'arbitrage le [ ... ] rendit
sans objet la poursuite de la procédure d'estimation ».
La demanderesse demande aux arbitres de déclarer qu'elle n’a pas manqué à ses obliga¬
tions contractuelles et demande que la défenderesse soit condamnée pour les dommages et
intérêts subis par la mise en œuvre abusive des dispositions contractuelles.
Outre le rejet des demandes principales, la défenderesse demande au tribunal d’ordonner
à la demanderesse de lui céder sa participation dans la Filiale Commune au prix déterminé
par la procédure d’expertise, plus dommages et intérêts. Elle demande aussi le rembourse¬
ment des frais engagés dans le cadre du Protocole d’Accord Asie et l’exécution provisoire
de la sentence à intervenir.
L’analyse du Tribunal arbitral est la suivante:
L’exclusivité
« Le Tribunal arbitral est d’avis que l'engagement d’exclusivité signifie que [la
demanderesse] n'a pas le droit de développer le site [objet des préoccupations de
la FTC] hors le cadre de la Filiale Commune. La Filiale Commune cependant ne
possède aucun droit de préemption. [La demanderesse] n’est pas obligée, dans le
cadre d'une acquisition, telle que celle visée à l'article 2.5, d'acquérir aussi
l 'Activité Chaux accessoire, si telle n'est pas son intention, mais si [la demander¬
esse] souhaite acquérir et conserver ce site, comme en l 'espèce [la demanderesse]
est tenue par les termes de l’art. 2.5, soit:
(mettre officiellement au courant [la défenderesse] par une communication au
conseil d'administration de [la Filiale Commune], et
(proposer à [la Filiale Commune] cette Activité Chaux accessoire dès que [la
demanderesse] pourra en disposer librement soit parce qu 'elle aura accompli
toutes les formalités pour en devenir propriétaire, soit parce qu'elle aura obtenu
toutes les autorisations permettant une libre exploitation, si de telles autorisations
sont obligatoires. ».
Le devoir d’information
« Dans cette première phase [la défenderesse] et [la Filiale Commune] sont au
courant de ce développement, [la Filiale Commune] sait qu’elle va probablement
acquérir [le site objet des préoccupations de la FTC], que [la demanderesse] ne s‘y
oppose pas mais que des problèmes de concurrence se posent et que la FTC
procède à une enquête approfondie.
Plus rien ne se passe jusqu'en janvier 2001, lorsque le conseil d’administra¬
tion de [la Filiale Commune] se réunit à Paris le 24 janvier, peu après que [la
demanderesse] ait annoncé son OPA amicale sur X. Les administrateurs repré¬
sentant [la demanderesse], soit notamment Afe L., prétendent avoir informé les
autres administrateurs des intentions de [la demanderesse] au sujet de l ’acqui¬
sition de X., mais hors séance officielle et hors procès-verbal, lors du repas qui a
suivi la réunion.
Il n’existe aucune preuve que [la demanderesse] ait tenue [la défenderesse] au
courant de ses contacts et négociations avec la FTC entre le 24 janvier et le 31 mai
2001 et encore fallait-il que M. C. adresse à [la demanderesse] un rappel le 15 mai
2001. ».
« Le Tribunal arbitral considère que [la demanderesse] n’a pas respecté l’obli¬
gation qui était la sienne au titre du paragraphe 2.5, première phrase, d’informer
son partenaire et la Filiale Commune, officiellement, dans le cadre d’une séance

I
i
du conseil d'administration, des exigences posées par la FTC au sujet des pro¬
blèmes de concurrence que posait la reprise de l 'Activité Chaux du site [objet des
préoccupations de la FTC] et la nécessité de céder cette activité à un tiers qui ne
soit ni le groupe H, ni [la défenderesse]. ».
Le devoir de la demanderesse de proposer l’acquisition de l’usine à la défenderesse
« Il est bien évident que [la demanderesse] ne peut être tenue de respecter son
obligation de proposer l’Activité Chaux accessoire du site [objet des préoccupa¬
tions de la FTC] à [la Filiale Commune] que si elle peut en disposer librement,
c 'est-à-dire si son droit de propriété est reconnu sans condition et l'entreprise à sa
libre disposition.
Or la fusion des activités de [la demanderesse] et de X. aux États-Unis allait
r" nécessairement avoir des conséquences sur le plan de la concurrence, étant
donné l'importance des deux groupes, et la FTC a dès le début fait état de ses
préoccupations à ce sujet. Il résulte clairement de la documentation produite que,
dans le Sud-Est des USA, le marché de la chaux était déjà fortement concentré
notamment en raison de la joint venture formée parX et Y et que l 'acquisition par
[la Filiale Commune] du site [objet des préoccupations de la FTC] aurait donné
à [la défenderesse], [la demanderesse], X. et Y. une domination sur 85% du
marché.
[La demanderesse] n’a pas été autorisée à conserver le site [objet des préoc¬
cupations de la FTC], toutes les dispositions ayant été prises par la FTC, pour
qu’elle ne puisse même pas exercer une influence ou un contrôle sur cette entre¬
prise pendant les 180 jours qui lui ont été accordés pour trouver un acquéreur, dont
la FTC se réservait le droit de refuser.
Il est de notoriété publique que la FTC dispose de moyens de contrainte con¬
sidérables, même si elle préfère imploser ses solutions via la signature de « Consent
decree ». Il résulte des pièces produites que les préoccupations de la FTC, sur le
plan de la concurrence, étaient sérieuses et que [la demanderesse], qui voulait au
début acquérir le site [objet des préoccupations de la FTC], s’est vu contrainte par
— —
la FTC de s’en dessaisir avec d’autres actifs pour que son acquisition du
groupe X. soit autorisée.
Le Tribunal arbitral constate que [la demanderesse] n’a pas violé l'obligation
résultant pour elle de l'application de l'article 2.5, deuxième phrase de la Con¬
vention d’actionnaires, de proposer à la Filiale Commune l 'Activité Chaux acces¬
soire du site [objet des préoccupations de la FTC]. ».
La méconnaissance grave de l’engagement d’exclusivité
« Pour qu 'il soit fait application de l'article 2.8 et de la sanction que cet article
prévoit, les parties sont expressément convenues qu'il faut de la part de la « Partie
Défaillante » un manquement grave:
Au cas où l’une des parties . . . méconnaît de manière grave l'engagement
.
d’exclusivité souscrit au titre des articles 2,1 à 2.5 . .
Dans ce contexte il y aurait une grave violation de l’engagement d'exclusivité
pris par [la demanderesse] si, après avoir acquis le site [objet des préoccupations
de la FTC] avec l'autorisation de la FTC, elle avait décidé de développer une
activité chaux pour son propre compte en refusant d 'apporter cette nouvelle acqui¬
sition à [la Filiale Commune], ou avait cherché à revendre ce site sans l’offrir
d'abord à [la Filiale Commune]. Or non seulement [la demanderesse] n’a pas été
autorisée par la FTC à faire l'acquisition du site [objet des préoccupations de la
FTC], mais elle n 'a pu, ni développer, ni même conserver cette activité, la FTC
ayant pris toutes les dispositions nécessaires pour que même durant les six mois
pendant lesquels [la demanderesse] a été autorisée à chercher un acquéreur, [la
demanderesse] ne puisse exercer aucun contrôle sur ce site, qu’elle avait

interdiction de revendre à [la défenderesse] ou au groupe H. [La demanderesse]

n'a donc pas méconnu de manière grave son engagement d’exclusivité.
s’il est vrai que [la demanderesse] n 'a pas informé à temps, complètement et de
manière officielle, [la Filiale Commune] de son intention initiale d 'acquérir le site
[objet des préoccupations de la FTC], mais a seulement informé la Filiale Com¬
mune tardivement et de manière lacunaire, il résulte du dossier que [la défender¬
esse] et [la Filiale Commune] étaient au courant de la première OPA hostile de [la
demanderesse] sur X, puis de l’OPA amicale et que, dès mars 2000, [la Filiale
Commune] s’attendait à ce que [la demanderesse] lui propose le site [objet des
préoccupations de la FTC] puisqu elle mentionne ce fait dans sa réponse à la FTC.
La mauvaise communication de [la demanderesse] ne peut donc être considérée
comme un manquement grave à l'engagement d’exclusivité.
[La demanderesse] n’a pas non plus proposé à la Filiale Commune l’Activité
Chaux accessoire [du site objet des préoccupations de la FTC], parce-que, d’une
part, il est très vite apparu que [le site objet des préoccupations de la FTC] n 'était
pas à sa libre disposition, mais surtout, que la FTC ne voulait à aucun prix que [le
site objet des préoccupations de la FTC] soit cédé à [la Filiale Commune] ou à
toute autre société du groupe [de la défenderesse],
Enfin, le Tribunal arbitral notera que, dès l’OPA initiale de [la demanderesse]
surX, l 'attitude de [la défenderesse] ou de [la Filiale Commune] est pour le moins
étrange. Bien qu'il s'agisse pour [la défenderesse] de faire entrer le site [objet des
préoccupations de la FTC] dans les actifs de [la Filiale Commune], ce « dével¬
oppement » ne donne lieu à aucune discussion au sein de [la Filiale Commune] du
propre aveu de ses représentants.
Or, [la défenderesse] était déjà informée de ce « développement » depuis janvier
2000. Elle avait de bonnes raisons de penser que ce site, si l'OPA de [la deman¬
deresse] surX. réussissait, lui serait forcément proposé par [la demanderesse]. Or
[la défenderesse] est restée totalement silencieuse jusqu’au 15 mai 2001. Comme
indiqué par M. W., le représentant de [la défenderesse] au conseil d’administration
de [la Filiale Commune] et président de ce conseil, [la Filiale Commune] durant
toute cette période avait d’autres priorités. Il fallait de toute urgence reconstituer
la direction générale, assurer son financement pour les années à venir et vendre
certains actifs pour améliorer la trésorerie. ».
« Le Tribunal arbitral est d’avis qu 'engluée dans ses difficultés d’organisation
et problèmes financiers [la Filiale Commune] n’a jamais réellement considéré
l 'acquisition du site [objet des préoccupations de la FTC], sauf peut-être de janvier
à mars 2000, qu 'elle y a en fait renoncé à l’époque comme convenu dans l’avenant
à la convention d’actionnaires du 21 juin 2001.
Le Tribunal arbitral considère par conséquent que si [la demanderesse] a
manqué à une partie de ses obligations contractuelles, les conditions de la mise
en œuvre de l'art. 2.8 de la convention d’actionnaires ne sont en tout cas pas
réunies. ».
Les dommages
«Le Tribunal arbitral considère que [la demanderesse] est certainement en droit
de demander le remboursement des frais d’expertise exposés en vain pour la
détermination du prix. A ce titre, les dommages réclamés sous (c) et (f) font par¬
tiellement double emploi. Le Tribunal arbitral considère par contre que [la deman¬
deresse] n 'a apporté aucune preuve des frais liés au suivi de l’expertise, de ceux
relatifs à la mobilisation de son personnel et du préjudice subi du fait du comporte¬
ment abusif de [la défenderesse] et de celui relatif à l’image de [la demanderesse].
L.. demanderesse] sera donc déboutée de toutes ses demandes en dommages-
mterêts à l'exception de celle relative aux frais d'expertise. ».
754 Reprinted from the Cluiiet

: --
• i - ~122-— - — ■■ ■= v ~?j. _. '-v ■-"-" uuoasai: 2EïVï.

Demande reconventionnelle
<r Le Protocole Asie est donc devenu caduc le 28 février 1999, la Filiale Commune
envisagée n'a pas été constituée et les frais de prospection engagés par [la défen¬
deresseJ ne peuvent pas être remboursés par [la demanderesse] qui n 'assume
aucune obligation à cet égard.
Le Tribunal arbitral constate que contrairement à ce qui a été indiqué dans
l’acte de mission [la demanderesse] a renoncé à soulever la question de sa com¬
pétence dans le cadre du Protocole d’accord Asie. Il en prend acte. Il partage les
conclusions de [la demanderesse], considère caduc le Protocole d’Asie depuis le
28 février 1999 et déboute [la défenderesse] de sa demande reconventionnelle en
remboursement de la moitié des frais encourus par [la défenderesse] soit EUR
1.013.581.56. ».
i
::
Frais de l’arbitrage
« Le Tribunal arbitral considère que dans le cas d’espèce les demanderesses doivent
supporter un tiers du coût de l’arbitrage en raison du fait qu'elles ont partiellement violé
leurs obligations contractuelles au titre de l’article 2.5 de la Convention d’actionnaires en
informant tardivement et de manière lacunaire les défenderesses et un tiers des frais de
défense des défenderesses.
Les défenderesses dont les principales conclusions sont rejetées supporteront les deux
tiers du coût de l’arbitrage et les deux tiers des frais de défense des demanderesses. ».
« Pour les raisons indiquées le Tribunal arbitral détermine que les défenderesses doi¬
vent compenser conjointement et solidairement les deux tiers des frais supportés par les
demanderesses pour leur défense, soit en chiffres ronds la somme de ( ...
) moins un tiers
de leurs propres frais de défense, soit en chiffre ronds (...), ce qui représente un total de
(...)».
NOTE. — I. —
En ce qui concerne la procédure, et à titre liminaire, il convient de
souligner que cette affaire mettait en cause une pluralité de demanderesses (trois sociétés
françaises et une du Royaume-Uni) et des défenderesses (une société belge, une des Pays-
Bas et une dernière de Gibraltar). Nonobstant les difficultés propres à l’arbitrage multi¬
partite (V. Complex Arbitrations: Perspectives on their Procedural Implications, ICC
Interntl. Ct. Arb. Bull., special supplement, ICC Publishing, 2003), aucun incident de
type processuel ne s’ est produit. Ceci est probablement dû au fait que les demanderesses
d’un côté et les défenderesses de l’autre appartenaient ensemble à deux groupes de sociétés
qui, par ailleurs, étaient rompus au commerce international. Ceci explique que le Tribunal
regroupe les demanderesses et les défenderesses sur la seule et même enseigne du groupe
auquel elles appartiennent et utilise le singulier pour y faire référence tout au long de sa
sentence.
Le bon déroulement de l’arbitrage a même amené les demanderesses à retirer, en cours
de procédure, l’objection de. juridiction qu’elles avaient soulevée à l’encontre de la
demande reconventionnelle. Voilà la preuve de ce qu’une procédure arbitrale évolue et
que, lorsque les arbitres ont su gagner la confiance des parties, celles-ci ont tout intérêt à
faire statuer l’ensemble du litige dans une même procédure arbitrale.
Un autre aspect très intéressant, même si la question n’a pas été posée comme point
litigieux au Tribunal arbitral —
mais qui a imprégné l’ensemble du litige —
a été le droit
currence — Federal Trade Commission (FTC)
—
de la concurrence et, plus concrètement, l’intervention de l’autorité américaine de la con¬
dont les conditions et injonctions ont
été à l’origine, même indirectement, du litige entre les parties. La façon dont le litige a été
présenté au Tribunal arbitral ne permettait pas aux arbitres d’élaborer sur l’interaction entre
arbitrage et droit de la concurrence (dont l’arbitrabilité n’est guère plus discutée et dont
l’application, par les arbitres, est devenue classique, à cet égard voir, notamment, sentences
«° 6932 de 1992: JDI 1994, p. 1065; Rec. CCI 1991-1995, p. 560, obs. Y. D.- sentence n°

7539 de 1995: JDI 1996, p. 1030, obs. Y.D. — sentence n° 8626 de 1996: JDI 1999, p.
1074, obs. J.-J A. — sentence n° 8423 de 1998: JDI 2002, p. 1079, obs. J.-J. A.). Aucune
des parties ne s’est insurgée contre les mesures assez contraignantes imposées par la FTC et
le Tribunal arbitral a reconnu que les préoccupations de la FTC, sur le plan de la concur¬
rence, étaient sérieuses.
Finalement, cette affaire sert aussi à illustrer l’intérêt pour une partie, à qui des manque¬
ments contractuels sont reprochés (en l’espèce, les demanderesses étaient accusées de non
respect du contrat) de déclencher la procédure arbitrale, même avec des prétentions, pour
l’essentiel, de type déclaratif, dans le but de mettre fin aux réclamations de son cocon¬
tractant ou d’arrêter les procédures précontentieuses en cours (dans cette affaire, les défen¬
deresses avaient entamé une expertise tendant à déterminer le prix de la participation des
demanderesses dans la Filiale Commune dans le but d’exercer leur option d’achat) et les
coûts y afférents.
II.— Sur les aspects de fond soumis à la considération du tribunal, la question centrale
concernait les engagements pris par les parties (et, plus concrètement, par les demander¬
esses) au titre de l’obligation d’exclusivité prévue dans la Convention d’actionnaires.
Fondé sur un raisonnement impeccable, le tribunal fait la part des choses entre l’interdic¬
tion réciproque imposée par les parties de ne pas développer des « activités chaux » en
dehors de la Filiale Commune, et les exceptions à cette exclusivité, qui impliquaient, d ’une
part, un devoir d’information vis-à-vis de l’autre partie, et d’autre part, l’obligation de
proposer à la Filiale Commune l’activité chaux (accessoire) ainsi qu’éventuellement de
tout nouveau développement (i.e. acquisition) envisagé par l’une des parties.
Le Tribunal écarte rapidement toute violation du droit d’exclusivité dans la mesure où
aucune activité chaux n’a été envisagée et encore moins développée par les demanderesses
en dehors de la Filiale Commune.
Les arbitres, en revanche, s’attardent davantage sur le devoir d’information qui incom¬
bait aux demanderesses du fait de leur OPA (d ’abord hostile, puis amicale) sur une « cible »
qui avait une « activité chaux » en Amérique. Tout d’abord, ils ne doutent nullement qu’il
s’agit bel et bien d’une obligation contractuelle
à celui d’obligation — — même s’ils préfèrent le terme « devoir »
clairement exprimée à l’article 2.5 de la Convention. Mais, plus
intéressant encore, le Tribunal va jusqu’à exiger que cette obligation soit exécutée dans les
conditions précises prévues dans la Convention. A cet égard, l’article 2.5 de la Convention
exigeait de « mettre officiellement au courant l'autre partie de ce développement, par une
communication au conseil d'administration » de la Filiale Commune. On rappellera que les
demanderesses avaient affirmé, sans en être tout-à-fait démenties par les défenderesses,
que les administrateurs représentant les défenderesses au sein de la Filiale Commune
avaient été informés des intentions des demanderesses « mais hors séance officielle et
hors procès-verbal, lors du repas qui a suivi la réunion » du conseil d’administration.
Pour le tribunal arbitral, il n’en est rien, l’obligation d’information devait s’accomplir de
façon précise, les parties elles-mêmes l’ayant qualifiée de « officielle ». Il importe peu
qu’une telle information ait pu parvenir, même officieusement, à la connaissance des
défenderesses. La réalité est que les demanderesses ne se sont pas acquittées de leurs
obligations conformément aux modalités contractuelles.
Il est fort probable que, dans cette affaire, la sévérité du tribunal s’explique par deux
raisons: d’abord, il faut se rappeler que, lors de l'OPA hostile, les parties ont communiqué
sans entrave et que les défenderesses ont été au courant de la situation jusqu’à ce que cette
OPA soit abandonnée. Il était donc légitime pour les défenderesses, face à l’absence de
communication de la part des demanderesses, de conclure qu’aucune nouvelle OPA n’était
envisagée concernant la même « cible ». Les défenderesses ne peuvent donc s’attendre à
une reprise immédiate de l’OPA qui, par ailleurs, ne paraissait pas probable. Ensuite, il
ressort de la sentence que, pendant toute la période des faits, la Filiale Commune a connu de
Reprinted from the Clunet
. A
a ssæ-

problèmes d’ordre financier et administratif, ce qui pouvait peser sur sa capacité à réagir et
sur la fluidité des communications entre les représentants des parties au sein de cette Filiale
Commune.
III.— Ayant trouvé que les demanderesses avaient manqué à leurs obligations de tenir
les défenderesses au courant de l’OPA amicale, il restait donc au Tribunal à s’interroger sur
le deuxième volet de l’article 2.5 qui consacre une obligation distincte: celle de «proposer
à la Filiale Commune l’Activité Chaux accessoire de ce développement ». Même si cette
obligation de « proposition » présuppose logiquement une communication d’information
préalable, le Tribunal prend soin d’en dissocier leur exécution. En effet, et à juste titre, les
demanderesses ne pouvaient manquer à l’obligation de « proposition » que si elles pou¬
vaient disposer de l’activité chaux accessoire « librement, c’est-à-dire si son droit de
propriété est reconnu sans condition et l 'entreprise à sa libre disposition ». Dans la mesure
où les autorités américaines de la concurrence ont empêché aux demanderesses d’acquérir,
voire même d’exercer, une quelconque influence sur « l'Activité Chaux accessoire », les
demanderesses ne pouvaient, ni en fait ni en droit, proposer à la Filiale Commune l’acqui¬
sition d’un bien dont les demanderesses savaient pertinemment qu’elles n’auraient jamais
la propriété ou le contrôle.
IV. - Il restait donc au Tribunal à s’interroger sur l’effet du manquement de l ’obligation
d’information à l’aune de l’article 2.8 de la Convention qui prévoit le déclenchement d’une
option d’ achat sur les parts dans la Filiale Commune détenues par la partie fautive en cas de
« méconnaissance grave » de l’obligation d’exclusivité.
Le Tribunal constate que le déclenchement de l’option d’achat relève un manquement
grave. D’autres tribunaux ont déjà été confrontés aux différences entre un simple manque¬
ment et un manquement qualifié de perturbateur, pour la continuité de la relation contrac¬
tuelle (V. sentence n° 6955 de la CCI: Yearbook of Commercial Arbitration, AJ. van den
Berg (ed), vol. XXIVa (1999), p.107 à 140). Dans cette affaire le Tribunal s’attarde à
expliquer ce qui aurait pu constituer, dans les circonstances, un manquement grave de
la part des demanderesses. Etant donné que le Tribunal avait déjà conclu au fait qu’il
n’existait pas de « droit de préemption » pour les défenderesses, qu’il n’y avait aucune
obligation pour les demanderesses d’acquérir « l’Activité Chaux accessoire » et que, en
l’espèce, les demanderesses étaient dans l’impossibilité d’effectuer une telle acquisition, le
Tribunal décide sans difficulté qu’il n’y pas eu de manquement — et encore moins de
manquement grave — à l’obligation d’exclusivité. Néanmoins, l’obligation d'information
n’étant pas visée à l’article 2.8 de la Convention comme un événement donnant droit à
l’exercice de l’option d’achat, le Tribunal revient sur le manquement des demanderesses au
devoir d’information et, soulignant que les défenderesses étaient de toute façon au courant
de la transaction (même si la communication « officielle » n’avait pas eu lieu), conclut que
ce manquement ne constitue pas « un manquement grave à l’engagement d'exclusivité ».
En effet, pour le Tribunal arbitral l’attitude des défenderesses semble capital au moment de
déterminer la gravité du manquement à l’obligation d’information. Selon le Tribunal, les
défenderesses étaient au courant de l’existence de l’Activité Chaux associée depuis 2000
(lors de TOPA hostile qui a échoué). Toutefois, aucune discussion sur cette possible
acquisition n’a lieu au sein des organes de direction des défenderesses. Une fois mises
au courant de l’existence d’une nouvelle OPA, les défenderesses demeurent silencieuses
sur leur intérêt pour l’Activité Chaux accessoire et elles vont même jusqu’à signer un
avenant à la Convention d’actionnaires prévoyant que « aucune nouvelle acquisition ni
aucun nouvel emprunt ou crédit ne sera réalisé ou souscrit avant 2004, sauf accord contraire
et exprès des parties ». Pour le Tribunal arbitral, les défenderesses n’ont pas réellement été
intéressées par l’acquisition du site en cause et, en vertu de l’avenant à la Convention, elles
y ont renoncé à cette possible acquisition.

V. — En ce qui concerne les dommages-intérêts, les demanderesses avaient demandé,

outre les frais associés à la procédure d’expertise déclenchée par les défenderesses,
d’autres dommages et intérêts relatifs au suivi de l’expertise par ses services internes,
au préjudice de son image et, en général, aux conséquences du « comportement abusif des
défenderesses ». L’analyse du Tribunal est assez classique, exigeant la preuve du dom¬
mage et faisant remarquer que certaines des demandes font double emploi. Ceci démontre
une pratique assez consolidée déjà, dans l’arbitrage international qui, même en présence
d’un manquement contractuel, n’ordonne le paiement de dommages et intérêts que lorsque
leur existence s’avère établie aux yeux du Tribunal (V. sentence n° 8463: ICC Interntl.
Ct. Arb. Bull. 12/N> I, 2001. p. 96).
À cet égard il faut souligner que la demande reconventionnelle des défenderesses ne
portait que sur le « Protocole d‘Accord Asie » et que le Tribunal, constatant que ce pro¬
tocole est devenu caduque, déboute entièrement les défenderesses de leurs prétentions à cet
égard. Aucun dommage n’a été demandé par les défenderesses au titre du manquement par
les demanderesses de leur obligation d’information.
VI.— En ce qui concerne les frais de l’arbitrage, il faut rappeler la grande liberté dont
jouissent les arbitres, conformément au Règlement de la CCI (art. 31), pour répartir les frais
de l’arbitrage entre les parties (V. sentences n° 10671: JDI 2006, p. 1453, obs. ESR.
sentence n° 12167: JDI 2007, p. 1270, obs. SJ-CTN. — Y. Derains etE. Schwartz, A guide—
to the ICC Rules of Arbitration, 2‘ ed.: Kluwer 2005, p. 368 à 374). La décision du Tribunal
arbitral à cet égard n’appelle que deux commentaires sur la méthode et sur la forme de la
condamnation. En ce qui concerne la méthode, le Tribunal prend en considération la
position de chacune des parties, au lieu de raisonner en termes de valeurs de leurs préten¬
tions (les demandes quantifiées des défenderesses s’élevant à un montant dix fois supérieur
à celles des demanderesses). Le Tribunal établit ainsi une proportion (d’un tiers, deux tiers)
sur la base des manquements contractuels constatés. Il semblerait que le Tribunal entende
ainsi dégager la « responsabilité » incombant aux demanderesses de ne pas avoir respecté
son obligation d’information. Il est permis de supposer qu’en l’absence de tout manque¬
ment des demanderesses à leurs obligations contractuelles, les défenderesses auraient
supporté l’intégralité des frais de l’arbitrage; le Tribunal a trouvé ici le moyen de com¬
penser un manquement contractuel dont les conséquences n’ont pas été dommageables.
En ce qui concerne la forme de la condamnation, on peut relever que le Tribunal, au lieu .
d’allouer un montant déterminé par le Tribunal au titre des frais de défense, applique la
même proportion (un tiers, deux tiers) aux frais respectifs des parties pour opérer ensuite
une compensation. Il n’y rien à dire sur cette démarche du Tribunal qui, au moins a le
mérite d’expliquer les chiffres alloués au moyen d’une simple opération arithmétique.
F. M.S.
Mots-Clés: Arbitrage international
Procédure arbitrale
— Chambre de commerce internationale

ss-irTssîzZzZ:
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■

(original en langue française)
——
Contrat. Agence commerciale. —Qualification.
Loi française n° 91-593 du 25 juin 1991.
— Régime juridique
applicable.
Indemnisation de cessation de contrat. Délai de la demande
d’indemnisation.
Nature juridique. — —
Article L. 134-12 du Code de commerce français.
Délai de déchéance. —
Délai de forclusion. Calcul —
—
du montant de l’indemisation.
?
La sentence arbitrale souligne l'importance de la qualification de la relation contrac¬
tuelle entre les parties en raison du régime juridique applicable qui en découle, soit les
dispositions de la loi française du 25 juin 1991 sur l’agence commerciale ou les disposi¬
tions du code de travail français. L’agent commercial en tant que mandataire indépendant
qui agit au nom et pour le compte du mandant est soumis à la loi de 1991 qui a été
transposée dans le Code de commerce. Il ne relève pas des dispositions du Code de
droit du travail comme le serait un Voyageur Représentant Placier (VRP) ou un salarié.
En application de l’article L. 134-12 du Code de commerce, l’agent commercial a droit
à une indemnisation de cessation du contrat qui doit être réclamée dans le délai d’un an à
compter de la cessation du contrat. Il s’agit d'un délai de déchéance et non pas de for¬
clusion car il sanctionne uniquement la négligence de l'agent qui n 'aurait pas sollicité le
paiement de cette indemnisation dans le délai précité. La demande d'indemnisation peut
être faite par l'agent dès la dénonciation du contrat, soit avant la date d’effet de sa
cessation. L’exercice d’un tel droit n’est pas soumis à un formalisme particulier sauf à
préciser que l'agent doit manifester clairement sa volonté à cet égard.
Un contrat d’agence commerciale exclusive a été conclu en juillet 1990 entre le deman¬
deur X., un agent de nationalité syrienne, et un défendeur Y., une société française, pour
une durée d’un an, renouvelable. Ce contrat a été résilié par le défendeur suite à une
restructuration interne de sa politique de distribution en septembre 1995, avec effet en
décembre 1995.
C’est dans ce contexte que le demandeur a saisi en 2003 la Cour internationale
d’arbitrage de la CCI d’une demande d’arbitrage tendant à faire constater que la résiliation
du contrat a été abusive et à obtenir le paiement de différentes indemnités, dont l’indemnité
de cessation du contrat, dues en vertu du droit français applicable au fond.
Dans sa réponse, le défendeur a soulevé une exception d’irrecevabilité pour cause de
forclusion des demandes, celles-ci ayant été introduites bien après le délai d’un an prévu à
l’article L. 134-12 du Code de commerce (« CC »): « la cessation du contrat d’agent est
intervenue le 31 décembre 1995, conformément au préavis de résiliation en date du 11
septembre 1995. Or la notification, telle que prévue par l'article L. 134-12 al.2 du Code de
commerce, devait intervenir entre le 1er janvier et le 31 décembre 1996 ( . . :) le droit à
indemnité pour cessation du contrat, dont se prévaut [le demandeur], n 'est devenu exigi¬
ble, à le supposer fondé, qu 'à compter du 1er janvier 1996 et c 'est à compter de cette date là
que [le demandeur] aurait dû notifier au mandant sa volonté de faire valoir ses droits et
non avant cette date . . . que le point de départ du délai d’un an est la cessation du contrat
et non la date à laquelle il est dénoncé et qu'aucune demande de cette nature n'a été
formulée entre les 1er janvier et le 31 décembre 1996 (...)».
Le demandeur soutient au contraire « qu 'en la forme, la notification faite par lui est
conforme ata articles 665 et suivants du Nouveau Code de procédure civile, puisqu'elle a

été adressée le 16 novembre par pli recommandé avec avis de réception, et reçue le
28 novembre. Ladite notification manifeste clairement son intention de se prévaloir ou
de revendiquer le droit à l’indemnisation (...) la loi ne prévoit aucune autre exigence et
qu’a fortiori, nul ne saurait l'interpréter comme [le défendeur] qui laisse entendre que
seule la sommation postérieure serait conforme à ses exigences ( ... ) l’interprétation du
[défendeur] a pour effet de vider le préavis de sa substance en interdisant à l’agent d’agir
pendant ce délai, alors que la raison d’être du préavis est de permettre à la victime de la
rupture de se retourner contre [le défendeur]. Le préavis est destiné à permettre à la partie
qui voit son contrat résilié de s’organiser pour redéployer autrement son activité et ne
saurait être utilisé comme une sanction par l’auteur de la résiliation pour lui permettre
d’éluder toute réparation du préjudice résultant de la rupture (...)».
Conformément à l’acte de mission qui a été signé avec les parties, l’arbitre unique,
siégeant à Paris, devait tout d’abord rechercher si le contrat litigieux relevait effectivement
de la loi de 1991 sur l’agence commerciale. Il a de ce fait examiné la nature juridique du
contrat en s’appuyant sur les dispositions de l’article L. 134-1 du Code de commerce qui
dispose que « [l]’agent commercial est un mandataire qui, à titre de profession indépen¬
dante, sans être lié par un contrat de louage de services, est chargé, de façon permanente,
de négocier et, éventuellement, de conclure des contrats de vente, d.’achat, de location ou
de prestation de services, au nom et pour le compte de producteurs, d’industriels, de
commerçants ou d’autres agents commerciaux (...)».
L’arbitre a ainsi retenu deux principaux critères:
—
mandant;
L’agent est un mandataire indépendant qui agit au nom et pour le compte du
— C’est un professionnel qui fait de la représentation de manière habituelle.

En partant de ces éléments, l’arbitre a analysé les dispositions du contrat avant de
conclure qu’il s’agit bien d’un contrat d’agence commerciale. Le demandeur exerçait
effectivement « une activité de prospection de clientèle et de promotion des ventes des
produits au nom et pour le compte du mandant [Y.], moyennant une rémunération sous
forme de commissions et en l’absence de lien de subordination ».
La nature juridique du contrat ainsi déterminée, l’arbitre s’est prononcé sur l’exception
de forclusion soulevée par le demandeur en considération de l’article L. 134-12 du Code de
commerce qui dispose qu’« [e]n cas de cessation de ses relations avec le mandant, l’agent
commercial a droit à une indemnité compensatrice en réparation du préjudice. L’agent
commercial perd le droit à réparation s’il n’a pas notifié au mandant, dans un délai d’un an
à compter de la cessation du contrat, qu‘il entend faire valoir ses droits ».
Au vu des pièces versées au dossier, l’arbitre a constaté que le demandeur a clairement et
valablement manifesté sa volonté de réclamer l’indemnisation de cessation conformément
au droit français. Le délai d’un an prévu à l’article L. 134-12 (2) du Code de commerce
étant un délai de déchéance et non de forclusion comme prétendu par le défendeur, l’excep¬
tion d’irrecevabilité qu’il a formulée a été rejetée par l’arbitre.
« 1. Sur la forme de la notification:
Attendu que la forme de ladite notification doit obéir aux articles 665 à 669 du
nouveau Code de procédure civile. En effet, la notification doit respecter le droit
procédural français, et ce conformément à la volonté des parties exprimée à
l’article 10 du contrat qui stipule que le « présent contrat est soumis et doit être
interprété conformément à la loi française ».
Attendu, qu’en plus, la notification doit exprimer clairement la volonté de
l ’agent commercial de faire valoir ses droits (...).
Attendu qu’au vu des pièces versées au début par le [demandeur], il se dégage
clairement que, par courrier en date du 11 septembre 1995, [le défendeur] a notifié
760 Reprinted iront the Clunet

au [demandeur] sa décision de résilier le contrat d'agent commercial avec effet au
Attendu que de son côté, le [demandeur] a envoyé le 16 novembre ¡995 au
[défendeur] une lettre recommandée avec accusé de réception . . , dans laquelle il
écrivait notamment:
« nous aimerions préciser que le contrat entre nos deux sociétés est soumis aux
lois françaises qui prévoient nonobstant toute clause contraire figurant au contrat
le règlement d'indemnités et la compensation des dommages résultant de la rési¬
liation du contrat d'agent.
Nous avons travaillé et représenté votre groupe depuis plus de quarante années
(...) il est juste que nous soyons dédommagés du travail fourni en quarante ans
pour ouvrir les possibilités du marché (...)»
% Attendu que par ladite lettre, l'agent commercial [X] a clairement exprimé sa
volonté de faire valoir ses droits, puisqu 'il rappelle au mandant que le Contrat est
soumis à la législation française qui prévoit le règlement d'indemnités et la com-
pensation des dommages résultant de la résiliation du contrat d’agent. Attendu
qu 'en outre, [le demandeur] a notifié à la société [Y.] sa volonté de faire valoir ses
droits par lettre recommandée avec accusé de réception et donc conformément aux
articles 665 à 669 du Nouveau Code de procédure civile. 2. Sur le délai de la
notification:
Attendu que par ailleurs, et concernant le délai de la notification, les disposi¬
tions de l'article L. 134-12, alinéa 2, du Code de commerce prévoient que « L 'agent
commercial perd le droit à réparation s 'il n'a pas notifié au mandant, dans un délai
d'un an à compter de la cessation du contrat, qu 'il entend faire valoir ses droits ».
(...)
Attendu qu’il convient de préciser, tout d'abord, la nature juridique du délai
d'un an ( . . . ) (a).
Ensuite, il sera nécessaire de préciser à quel moment l’agent commercial doit
notifier au mandant sa volonté de faire valoir ses droits (b).
a) La nature juridique du délai de l'article L. 134-12, alinéa 2, du Code de
Commerce
Attendu que la « forclusion » est la déchéance du droit d’ester en justice pour
cause d'expiration du délai légal, lien est, par exemple, ainsi lorsqu 'une partie à
un litige a laissé passer le délai légal pour faire appel ou pour se pourvoir en
cassation ( . . .)
Attendu qu’en revanche, le Tribunal arbitral considère que le délai d'un an de
l'article L. 134-12, alinéa 2, du Code de commerce, ne concerne en aucun cas
l’exercice d'une action en justice de la part de l’agent commercial. C'est plutôt un
délai à l’exception duquel l’agent commercial perd le droit à réparation. Il s'agit
d’un délai extinctif du droit à réparation faute pour l’agent commercial d’avoir
accompli une formalité qui est la notification au mandant dans im délai d’un an de
sa volonté pour faire valoir ses droits.
Attendu qu'en conséquence le délai de l'article L. 134-12, alinéa 2, du Code de
commerce, n’a pas pour but d’éteindre l’action dont dispose l’agent commercial
pour faire reconnaître son droit en justice, et qu 'il est plutôt un délai extinctif du
droit à réparation lui-même ( . . . )
Attendu qu’il en ressort qii’il n 'est point question de déchéance pour cause de
forclusion dans le cas d’espèce, mais plutôt d’une prescription extinctive qui con¬
stitue pour le débiteur un moyen légal de se libérer d'une obligation exigée par le
créancier ( ... )
b) Le moment de la notification de l’article L. 134-12, alinéa 2, du Code de
Commerce:
Attendu que l'article L. 134-12, alinéa 2, du Code de commerce fixe le point de
départ du délai de prescription au jour de la cessation du contrat.
Reprinted from the Clunet lffi.

Attendu que selon l’article L. 134-12, alinéa 2, du Code de commerce, la ces¬

sation du contrat est le point de départ du délai à l’expiration duquel l'agent
commercial perd le droit à réparation s'il nel 'interrompe pas par une notification
comportant son intention de faire valoir ses droits.
Attendu qu'il convient de distinguer, à cet égard, entre la cessation du contrat et
la date d'effet de ladite cessation. La première se constate dès la dénonciation du
contrat, la seconde s'apprécie, en revanche, le jour où la résiliation du contrat
commence à produire ses effets ( ... )
Attendu que l'article L. 134-12, alinéa 2, du Code de commerce n’empêche pas
que ladite notification puisse intervenir avant la date d'effet de la cessation du
contrat et l 'agent commercial qui peut notifier sa volonté pour faire valoir ses
droits à compter de la date d’effet de la cessation du contrat, peut aussi le faire dès
la dénonciation du contrat et ceci en application du droit selon lequel qui peut le
plus peut le moins.
Attendu que le préavis de résiliation permet à l’agent commercial de prendre
connaissance de l'acte de volonté du mandant tendant à mettre fin aux relations
contractuelles à une date bien déterminée. Il constitue, de ce fait, le point de départ
du délai à compter duquel l 'agent commercial peut notifier au mandant sa volonté
de faire valoir ses droits (... )
Attendu qu'Userait justifié de sanctionner l 'action de l 'agent commercial s’il ne
notifiait pas au mandant sa volonté de faire valoir ses droits à l 'expiration du délai
d’un an à compter de la cessation des relations contractuelles. Dans ce cas l’agent
fait preuve de négligence dont il doit assumer les conséquences. Il serait, en
revanche, mal fondé de frapper de déchéance une telle action de l’agent
commercial sous prétexte qu’il a notifié au mandant sa volonté de faire valoir
ses droits avant la date d’effet de la résiliation ( ... )
Attendu qu'à compter de la date de la dénonciation du contrat et jusqu'à l 'arri¬
vée du terme d'une année après la cessation du contrat, l'agent commercial doit
notifier au mandant sa volonté de faire valoir ses droits, à défaut de quoi il perd son
droit à indemnité (...)».
La procédure fondée sur l’article L. 134-12 du Code de commerce tendant à obtenir
l’indemnisation de cessation du contrat ayant été déclarée recevable, l’arbitre a examiné le
fond de l’affaire.
En l’absence de toute faute constatée à l’encontre du demandeur, l’arbitre lui accorde
l’indemnité de cessation de contrat sollicitée en considération du fait que le contrat
d’agence commerciale est un contrat d’intérêt commun en droit français. Le montant
fixé pour l’indemnité de cessation est équivalente au montant des deux dernières années
de commissions touchées par l’agent conformément à la jurisprudence française. Dans le
cadre de ce calcul, l’arbitre a pris en compte tous les versements effectués à l’agent pendant
cette période soit directement par le défendeur ou soit indirectement par ses filiales dès lors
qu’ils étaient liés à l’exécution du contrat d’agence en cause.
—
«A Sur le principe du droit à indemnité:
(...)
—
1 Fondement juridique de l’indemnité compensatrice
Attendu que confirmant et accentuant l'état de droit antérieur (celui consacré
par le décret du 23 décembre 1958), la loi du 25 juin 1991 (art. 4) précise que le
contrat d’agent commercial est un contrat d'intérêt commun et ajoute que les
rapports entre agent commercial et mandant sont régis par une obligation de
loyauté, autrement dit par me obligation de bonne foi, telle que prévu par l’article
1134 al.3 du Code Civil (...)
Attendu qu 'il en ressort que la notion d’intérêt commun inspire tout le contrat
d’agent commercial puisque celui-ci a pour finalité une valeur commune pour le

,:L
_ 7V.-.-.V :
•'
■
•s
mandant et pour l’agent, à savoir, la clientèle en tant que valeur patrimoniale

constituée en commun par le courant des affaires ( ... )
Plus fortement encore, l'article L. 134-12 du Code de commerce dispose qu'en
cas de cessation de ses relations avec le mandant, l 'agent commercial a droit à une
indemnité compensatrice en réparation du préjudice subi ( ... )
Attendu que l'article L. 134-12 du Code de commerce ajoute que « est réputée
non écrite toute clause ou convention ( ... ) dérogeant, au détriment de l 'agent
commercial, aux dispositions ( . . . ) des articles L. 134-12». Il s'agit bien évidem¬
ment d’une disposition d'ordre public ( ... )
2. Sur le bien-fondé de la demande d'indemnisation
Attendu qu'il ressort de ce qui précède que l'agent commercial n'a pas à
démontrer une quelconque négligence ou le non-respect de ses obligations par
f- le mandant pour demander une indemnité de cessation de contrat d'agence.
Attendu que doit être réputée non écrite toute clause ou convention, tel que
l'article 7.3. du contrat litigieux, qui limite l’attribution de l’indemnité à l'agent au
seid cas de non-respect des obligations contractuelles ( ... )
A ttendu que selon la loi du 25 juin 1991, seules trois circonstances emportent la
suppression du droit à indemnisation:
——
1 Article 134-13, Ia du Code de commerce: la faute grave de l’agent ( . . .)
2 Article 134-13, 2° du Code de commerce: lorsque la cessation du contrat
est due à l’initiative de l’agent commercial ( ... )
—
3 Article 134-13, 3° du Code de commerce: lorsque l’agent cède le contrat à
un tiers avec l’accord du mandant (...ÿ)
Attendu qu'il appartient au mandant d 'établir la réalisation de l’une de ces trois
circonstances, pour pouvoir se dégager de son obligation d’indemniser son agent
commercial pour cause de cessation du contrat ( ... )
Attendu qu 'en l’espèce [le défendeur] n'a pas réussi à établir la réalisation de
ces trois circonstances précitées.
—
B Sur la détermination du montant de l’indemnité compensatrice: ( ... )
Attendu que le Tribunal arbitral est appelé à fixer, tout d’abord, le mode de calcul
de l'indemnité de cessation de contrat d’agent commercial, ensuite, de déterminer
l’assiette de calcul de ladite indemnité et enfin d’en fixer le montant.
—
2.1 Sur le mode de calcul
Attendu que la loi du 25 juin 1991 ne fixe pas le montant de l'indemnité et que
l’article 12-1 de cette loi devenu article 134-12 du Code de commerce, parle d’une
indemnité compensatrice du préjudice subi sans autre explication quant à la méth¬
ode d’évaluation, ni à l’étendue de ce préjudice.
Attendu que par une référence à l’état de la jurisprudence en la matière, il
ressort que le juge du fond dispose d’un pouvoir d’évaluation du préjudice subi
( ... ) Attendu, en effet, que selon la jurisprudence française, l'indemnité repré¬
sente la part du marché perdue pour l 'agent commercial au moment de la cessation
du contrat. En d’autres termes, le préjudice subi consiste en un manque à gagner,
en commissions, que l’agent aurait pu légitimement escompter en cas de maintien
de son mandat ( ... )
Attendu, en outre, que la jurisprudence fixe très généralement l’indemnité au
montant des deux dernières années de commissions ( ... )
Attendu que la jurisprudence prend en compte, outre les commissions, certains
critères d'évaluation du préjudice susceptibles d’entraîner une variation de
l'indemnisation d’usage. Telles sont notamment les clauses de non concurrence
post-contractuelles et la durée du contrat.
Attendu qu’en effet les juges du fond considèrent que la clause de non concur¬
rence post-contractuelle intensifie le préjudice subi par l 'agent commercial; ce qui
peut justifier l'augmentation de l'indemnisation de fin de contrat à hauteur de trois
ans de commissions ( ... )

—
2.2 Sur le montant de l'indemnité compensatrice
Attendu qu'en l’espèce, il est question de savoir si le Tribunal, en plus des
commissions versées par le mandant à l’agent, doit inclure dans le calcul de
l’indemnisation les commissions versées à l’agent commercial par d'autres soci¬
étés «filiales » du mandant.
Attendu qu’il convient, à cet effet, de rechercher si les commissions à inclure
dans le calcul de l‘indemnité de cessation ont été versées par les supposées filiales
suite à l 'exécution du contrat d 'agent commercial liant le mandant (société mère) à
l'agent commercial.
Attendu, plus précisément, que le Tribunal doit rechercher si l’agent
commercial X. a perçu lesdites commissions en rémunération de son travail de
prospection de la clientèle et de promotion, sur le territoire [étatX], des ventes des
produits fabriqués par le mandant, la société [Y J et dont la liste est fixée en annexe
du contrat.
Attendu que dans l’affirmative, le fait que les commissions soient versées par
une filiale ne peut avoir de conséquences, celles-ci devant être prises en compte
dans le calcul de l'indemnité de cessation du contrat. En effet, dans de telles
circonstances, le principe de l'indépendance des sociétés filiales et la société
mère ne peut être valablement évoqué en raison du haut degré de confusion des
activités ( ... ) Dans ce cas, la notion d’unité économique et juridique de la filiale
et de la société mère peut l’emporter sur le principe de l’indépendance ( ... )
Attendu qu‘en raison du haut degré de confusion des activités, de la similitude
des dénominations ainsi qu’au vu des produits ayant fait l’objet de la rémunération
au profit de l’agent commercial et qui rentrent dans le cadre du contrat liant les
parties à la présente instance, il appert (sic) que le [demandeur] ait confondu, en
toute bonne foi, les différentes sociétés du groupe appartenant au [défendeur], ce
qui fonde juridiquement sa demande d’extension de l’assiette de calcul ( . . . )
Par ces motifs, le Tribunal arbitral déclare que doivent être prises en compte les
commissions versées par les sociétés filiales dans le calcul de l’indemnité com¬
pensatrice (...)».
L’arbitre a accordé ensuite une indemnité supplémentaire pour le manque à gagner de
l’agent commercial en raison de la cessation anticipée du contrat. II a rejeté par contre
toutes les autres demandes de l’agent (dont le retour d’échantillonnage, la mauvaise foi du
défendeur) pour défaut de fondement juridique.
L’arbitre a condamné enfin le défendeur à supporter la totalité du coût de l’arbitrage, y
compris les irais de conseil du demandeur, nonobstant le fait que le demandeur n’a pas
obtenu gain de cause pour l’ensemble de ses demandes. Cette décision est tout à fait valable
en application de l’article 31 du Règlement CCI qui accorde à l’arbitre un pouvoir d’appré¬
ciation souveraine à cet effet.
NOTE. — I.
— Le soin pris par l’arbitre de vérifier que le contrat qui lie les parties est
bien un contrat d’agence commerciale mérite d’être approuvée par souci de clarification.
L’agent commercial est un mandataire indépendant qui est chargé de promouvoir et de
vendre les produits du mandant sur un territoire donné. L’objet de son activité principale est
donc de permettre la conclusion de contrats entre le mandant et les tiers.
L’agent se distingue ainsi d’autres catégories d’intermédiaires, tels que les distributeurs
ou les VRP qui sont soumis à des régimes juridiques différents. En tant que mandataire
indépendant, l’agent commercial est soumis aux dispositions de la loi française de 1991 sur
I agence commerciale lesquels ont été intégrées dans le Code de commerce français. Le
distributeur, en tant que commerçant indépendant, est soumis aux dispositions du droit civil
et le VRp, en tant qu’intermédiaire salarié, est soumis aux dispositions du droit du travail.
Cette distinction entre les différents régimes juridiques applicables est importante car
elle peut soulever la question de l’arbitrabilité du litige qui est soumis à l’arbitre. Si les

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— ----
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différends liés aux contrats d’agence ou de distribution commerciale peuvent être soumis à
l’arbitrage, tel n’est pas le cas pour les différends liés aux contrats de travail qui sont en
principe soumis à la compétence des Conseils des Prud’hommes en droit français (V. en ce
sens F. Bortolotti, Le contrat international d'agence commerciale dans l’arbitrage de la
—
CCI: Bull. CCI Ier semestre 2001, vol. 1, n° 1, p. 52. sentence arbitrale CCI n° 8420
[1996]: Yearbook 2000, p. 328). La question ne s’est pas posée en l’espèce puisque l’arbitre
a retenu qu’il s’agissait bien d’un contrat d’agence commercial. Cette qualification du
contrat était en réalité surtout utile pour lui permettre d’examiner les conditions d’appli¬
cation de la loi française de 1991 et du Code de commerce français précités aux agents
commerciaux.
r-
II.— Dans le cadre du différend qui oppose les parties, l’arbitre a dû examiner la nature
'
juridique du délai d’un an prévu à l’article L. 134-12 (2) du Code de commerce en raison de
la confusion créée par le défendeur qui a invoqué l’existence d’une prescription de l’action
pour cause de forclusion. Comme expliqué par l’arbitre, le délai de l’article L. 134-12 (2)
du Code de commerce n’est pas un délai de forclusion mais plutôt de déchéance.
Concrètement, l’agent doit notifier au mandant dans le délai d’un an à compter de la
cessation du contrat, c’est-à-dire de la fin des relations contractuelles, sa volonté d'obtenir
le paiement de la réparation due. Faute d’une notification dans le délai requis, l’agent est
déchu de son droit à réparation sur ce point uniquement. La déchéance n’affecte pas le délai
de prescription ordinaire dont bénéficie généralement l’agent pour agir en responsabilité
contre le mandant.
Le délai de déchéance se distingue du délai de forclusion qui sanctionne le titulaire d’un
droit ou d’une action pour défaut d’accomplissement dans le délai légal, conventionnel ou
judiciaire, d’une formalité lui incombant, en interdisant à l’intéressé d’accomplir déso¬
rmais cette formalité (sous réserve des cas où il peut être relevé) (V. G. Cornu, Vocabulaire
—
juridique, 8e éd.: PUF 2007, V. Forclusion, p. 422. F. Rouvière, La distinction des délais
de prescription, butoir et de forclusion: LPA 31 juill. 2009, «° 152, p. 7). La déchéance,
quant à elle, traduit la perte d’un droit, d’une qualité, d’un bénéfice encourue à titre de
sanction pour cause de négligence ou d’indignité (V. G. Cornu, Vocabidaire juridique, op.
cit. p. 266).
La particularité du délai de déchéance prévu par l’article L. 134-12 (2) du Code de
commerce souligne surtout l’intérêt commun qui anime le contrat d’agence commerciale.
Le mandant et l’agent travaillent ensemble pour développer la clientèle sur un territoire
donné. Toutefois, lors de la cessation du contrat, la part de marché revient au mandant et
non pas à l’agent qui a agi en effet au nom et pour le compte du mandant tout au long de la
relation contractuelle. Il n’est donc pas étonnant que l’agent subisse un préjudice à l’issue
de la cessation du contrat puisqu’il perd le fruit de son travail et de son investissement sur le
marché donné. Il peut ainsi prétendre en droit français à une réparation de son dommage
— —
sous réserve de manifester clairement sa volonté dans les plus brefs délais (V. plus gén¬
éralement J.-M. Leloup, Agents commerciaux Statuts juridiques Stratégies profes¬
sionnelles, 6e éd.: Delmas. 2005, §1148 à 1150, p. 215 et 216. —D. Ferrier, Droit de la
distribution, 4e éd.: Litec, 2006, §227, p. 98. — Cass, corn., 18 mai 2005, na 03-20.820:
Dalloz, 2005, p. 1475, noteE. Chevrier.
2005, p. 857).
— Cass, corn., 27 sept. 2005, n° 03-Ï8.579: AJDI
S’agissant de la notification de la demande d’indemnisation, l’article L. 13412 (2) du

Code de commerce indique qu’elle doit être faite par l’agent dans un délai d’un an à
compter de la « cessation du contrat ». En l’absence de toute autre précision, il est néces¬
saire de rappeler la distinction entre la cessation du contrat et la date de prise d’effet de sa
cessation. Comme indiqué par l’arbitre, « [l]a première se constate dès la renonciation du
contrat, la seconde s’apprécie, en revanche, le jour où la résiliation du contrat commence à
produire ses effets ». L’agent n’est donc pas tenu d’attendre la date d’effet de la cessation
du contrat pour notifier au mandant sa volonté de faire valoir ses droits, contrairement à

l’argumentation du défendeur. H peut le faire dès la dénonciation du contrat par son

cocontractant, soit après réception de la lettre de résiliation ou de préavis (V. J.-M.
Leloup, op. cit. §1150, p. 216. — Cass, com., 11 mars 2008, «° 07-10.590).
Enfin, et s’agissant de la demande d’indemnisation, il faut se rappeler que la directive
européenne 86/683/CEE du 18 décembre 1986 sur l’agence commerciale, qui a été trans¬
posée en droit français, a accordé aux États membres la possibilité de choisir entre l’indem¬
nité compensatrice fondée sur le préjudice subi par l’agent et l’indemnité de clientèle qui
est basée sur l’avantage procuré au mandant par l’apport de nouveaux clients.
Le législateur français a opté pour la première solution, plus protectrice de l’agent
commercial, contrairement à l’Allemagne par exemple qui a choisi la deuxième possibilité
(V. F. Bortolotti, op. cit.p. 63 à 64.— V. également à titre de comparaison./. Burda, Agent
commercial et distributeur exclusif: où doit s'arrêter l’analogie? Retour sur une évolution
2009, n° 4, p. 455.
—
récente du droit suisse en matière de contrat de concession de vente exclusive: RDAl/IBU
V. également sentence arbitrale CCI n° 12855 (2004): JDI 2009,
p. 1393, note S. J. et C. T.-N.).
Le choix du législateur français peut se comprendre par le fait que le contrat d’agence
commerciale est un contrat d’intérêt commun en droit français. De ce fait, en cas de
cessation du contrat, l’agent a droit à une indemnité compensatrice en réparation du pré¬
judice subi (C. com., art. L. 134-12). 11 s’agit d’une disposition d’ordre public (C. corn., art.
L. 134-16) qui s’applique en faveur de l’agent sauf en cas de faute grave de ce dernier, de
cessation du contrat par l’agent ou de cession du contrat à un tiers avec l’accord du mandant
(C. com., art. L. 134-13). Aucune faute n’ayant été relevée à l’encontre de l’agent, l’arbitre,
en usant de son pouvoir d’appréciation souveraine, a fait droit à sa demande en lui accor-
dant une indemnité compensatrice équivalente à deux ans de commissions brutes versées
par le mandant ou ses filiales. La fixation de l’indemnité à deux ans est justifiée par l’équité
et les usages car la cessation du contrat est en soi constitutive du préjudice de l’agent. La
décision de l’arbitre s’inscrit dans la continuité de la jurisprudence française et n’appelle
pas de commentaires particuliers. Par ailleurs, le fait que l’arbitre ait décidé de prendre en
compte les versements faits directement par le mandant ou ses filiales dans le calcul des
commissions peut se comprendre car ils ont été effectués par les filiales en rémunération du
travail accompli par l’agent dans le cadre du contrat litigieux. Ces versements doivent donc
être pris en compte par l’arbitre dans le cadre du calcul de l’indemnisation due à l’agent.
L’intervention financière ponctuelle des filiales peut s’expliquer probablement pour des
raisons pratiques, de fonctionnement interne entre elles et la société mère justifiant ainsi la
décision de l’arbitre de rejeter le principe de l’indépendance des sociétés filiales et la
société mère (V. plus généralement J.-M. Leloup, op. cit. § 1150, p. 217. — V. également
M. Depincé, La clause de non-concurrence post-contractuelles et ses alternatives: RTD
corn. 2009, p. 259). Cette décision dispense l’arbitre d’examiner la délicate question de
l’extension de la clause compromissoire à des parties non-signataires ou encore de la
théorie des groupes de sociétés bien connue en arbitrage. Il n’avait pas besoin de l’aborder,
il est vrai, en l’absence de toute question soulevée par les parties à cet effet durant la
procédure d’arbitrage (V. à titre d’illustration sentence arbitrale CCI n° 12605: JDI 2008,
p. 1193, note S. J. et C. T.-N.).
S. J.
C. T.-N.
Mots-Clés: Arbitrage international — Chambre de commerce internationale —
—
Contrat d’agence commerciale (qualification) - Indemnisation de cessation du contrat

--- 1 -• :- ;-•v„-::a
'-H
Dol. — Analyse des termes contractuels. — présomption de compétence

professionnelle. Manœuvres dolosives (non). — Caractère déterminant de
l’erreur (non). — Erreur inexcusable (non). —
Obligation précontractuelle
Cause. — —
d’information (non). — Devoir de renseignement (oui). Nullité (non).
Distinction entre brevet inexploitable techniquement et
commercialement. — Existence d’une contrepartie et contrat aléatoire
synallagmatique. —
Clause de limitation de garantie. — Nullité (non).
i. ■
Dommage (lien de causalité). — Pluralité de causes de l’échec du projet. —

Spécificité du contrat (aléatoire et de développement industriel). — Lex
mercatoria. — Principe de bonne foi et de « coopération loyale, totale et
constante ». — Obligation d’information lors de l’exécution (oui).
Lex Mercatoria. Bonne foi. — Présomption de compétence
professionnelle. —
Devoir d’information vs devoir de renseignement. —
Obligations implicites et pouvoir de l’arbitre.
Procédure arbitrale. — Frais de l’arbitrage. — Règlement CCI. —
Comportement des parties lors de la procédure. — Pouvoir souverain des
arbitres.
La sentence commentée écarte la responsabilité de chacune des deioc parties dans

l’inexécution d'un contrat de sous-licence et dans l’échec consécutif de leur projet
d'exploitation commerciale et industrielle, mais sanctionne toutefois la défenderesse au
moment de la détermination de la répartition des frais de l’arbitrage. Dans cette affaire,
expressément soumise au droit français et entre deux parties françaises, l'arbitre procède à
une analyse juridique des faits litigieux et de la responsabilité des parties au regard des
principes de la lex mercatoria, substituant par la même au cadre juridique choisi par les
parties, une liberté et un jugement en équité lui permettant de dégager des principes et des
obligations pourtant étrangers à cette structure.
L’affaire CCI n° 12827 oppose deux sociétés françaises, une société B. de fabrication et
de commercialisation d’ustensiles de cuisine et le groupe C., venant aux droits de A., dans
le cadre d’un litige en matière de propriété industrielle. Depuis plusieurs années, A. effec¬
tuait des « travaux de recherches (...) le domaine des matériaux métalliques ». Plusieurs
brevets furent déposés entre 1982 et 1995, dont un en copropriété avec A portant sur une
technique visant à « déposer sur un substrat une phase quasi-cristalline ». La sentence
analysée tranche dès lors le litige entre A et B né suite à la paralysie du processus d’exploi¬
tation industrielle de ces brevets devant permettre la production de « poêles quasi cristaux »
optimales.
Ce processus a fait l’objet de l’intervention d’une pluralité d’acteurs, à travers la con¬
clusion par A. de divers contrats de sous-License, répondant à une certaine répartition des
droits d’exploitation et des obligations destinée à garantir le succès du passage de la phase
de recherche à celle d’exploitation des brevets. Parmi cette complexe chaîne contractuelle,
les relations de parties A. et B. ont quant à elles débuté par la conclusion d’un contrat de
sous-licence à titre exclusif en date du 11 janvier 1995. Conformément aux dispositions du
contrat de sous-licence entre A. et B., B., outre diverses conditions financières, avait pour

obligation d’exploiter la sous-licence et « à faire toute diligence pour trouver des

débouchés ». A. était tenu à cet effet de fournir à B. une assistance technique complète
« pendant la durée nécessaire à la mise au point et au démarrage de la phase d 'exploitation
industrielle » (une assistance redéfinie et précisée dans ses différentes phases (développe¬
ment/industrialisation/ingénierie), dans un avenant au contrat de sous licence, conclu le
6 novembre 1995).
Différents actes marquent l’évolution des rapports de A. et de B. au fil des précoces et
répétées difficultés d'exécution de ces deux parties — lettres, demandes d’expertise en
référés, constat d’huissier, mise en demeure de paiement par A. à B., abandon du projet «
poêles » pour le projet « Dôme » dès 1996 — , chacune des parties écartant toute respons¬
abilité dans les retards et inexécutions dès la fin de la phase de développement en invoquant
les manquements de ses autres partenaires dans cette chaîne opératoire afin de justifier sa
propre inexécution.
Les deux lancements en novembre 1998 et avril 1999 de la « poêle révolutionnaire » se
sont soldés par de véritables échecs, les produits ayant été retirés de la vente et les com-
mandes annulées. En dépit des efforts des parties, les tests demeurèrent infructueux et les
produits non-conformes aux normes sanitaires.
Dans ce contexte, B. décida d’arrêter les livraisons de poêles à revêtir de quasi-cristaux
et fit une proposition de règlement amiable à A. tout en spécifiant que, faute de proposition
sérieuse, la résolution judiciaire des contrats serait demandée. Ces courriers étant restés
sans suite, le groupe C. dénonça la reconduction du contrat de sous-licence de B. le
9 novembre 2001. Par lettre du 26 novembre 2002, B. mit en demeure A. de l’indemniser
par voie amiable de l’intégralité du préjudice subi dans un délai de soixante jours.
Suite à la négation du groupe C. de sa responsabilité dans l’échec du projet, B. intro¬
duisit, le 18 juillet 2003, une Requête d’arbitrage auprès du Secrétariat de la CCI afin
d’obtenir réparation de son préjudice né (i) des investissements éprouvés, (ii) de la dégra¬
dation d’image et de la perte corrélative de clientèle et de position sur le marché éprouvée,
et (iii) du coût du remboursement des produits refusés par le distributeur et les
consommateurs.
Les parties n’ayant soulevé aucune exception de procédure, le tribunal arbitral à juge
unique, sur le fondement du droit français, traite immédiatement les demandes de la
Demanderesse au fond. La clause arbitrale contenue à l’article 12.2 du Contrat de sous-
licence précisait en effet que «.l'arbitrage sera conduit conformément au droit français et
en langue française. Le lieu de l’arbitrage sera Paris, France ».
Le Tribunal examine dans un premier temps la demande principale qui porte sur la
nullité du contrat — construite autour de deux arguments, la nullité pour cause de dol
et la nullité pour absence de cause -, avant de traiter les demandes subsidiaires fondées sur
le comportement des parties dans le cadre de l’exécution de leurs obligations contrac¬
tuelles. Tout en soulignant la contradiction inhérente à demander au tribunal de constater
à la fois la nullité d’un contrat et l’inexécution de ce même contrat, le Tribunal prend soin
de rappeler qu’« aucune disposition ne l 'interdit et elle [cette contradiction] ne peut avoir
pour effet d’empêcher la Demanderesse de formider des demandes principales, i.e. la
nullité du contrat, et des demandes subsidiaires, i.e. l'inexécution du Contrat ». Suite à
cette analyse du cœur du litige, le tribunal procède à l’analyse des préjudices allégués par
les parties.
La sentence consacre d’importants développements à la question du dol. C’est en effet
tout 1 échec du « miracle des quasi-cristaux » qui trouve ici sa traduction en termes
juridiques, dans la mesure où la Demanderesse invoque des manœuvres dolosives et la
rétention d information de la part de la Défenderesse afin de lui cacher l’état d’avancement
réel de celte technologie et d obtenir son consentement au contrat. La Défenderesse a-t-elle
sciemment présenté les quasi-cristaux comme étant susceptibles de faire l’objet d’une
768 Reprinted from the Outlet

ŸüïïZZZïix.

application industrielle et d’une commercialisation, ou la Demanderesse a-t-elle simple¬
ment commis une erreur quant à l’état de cette technologie réduite au simple stade la
recherche? Il convient de souligner que c’est ce même état d’avancement que le Groupe
C. souligne lors de son rejet du règlement à l’amiable, celui-ci estimant qu’aucune respons¬
abilité ne peut lui être imputé face à l’échec d’un projet appuyé sur « une technologie
nouvelle, en phase de mise au point industrielle » dont les coûts et préjudices éventuels « ne
relèvent que du simple risque entrepreneurial ». La question de l’aléa et des conséquences
de son éventuelle dissimulation par la Défenderesse est ainsi au cœur de cette sentence.
Le Tribunal prend soin de rappeler les conditions du dol et d’analyser les manœuvres et
réticences invoquées au moment de la formation du contrat. Le tribunal se prononce sur
cette demande de nullité après avoir procédé à une analyse rigoureuse et séparée de chacun
de ces éléments: l’élément matériel, l’élément intentionnel et l’erreur déterminante de la
victime.
Les manœuvres dolosives devant être appréciées au moment de la conclusion du contrat,
le Tribunal analyse les termes du contrat afin de pouvoir se prononcer sur l’existence de
manœuvres dolosives visant à tromper la Défenderesse quant à (i) l’état d’avancement de la
technologie des quasi-cristaux, (ii)¡’existence d’un pilote industriel et (iii) les compétences
des autres partenaires du projet. Le dol est apprécié au regard de la nature du contrat de
sous-licence, un contrat « synallagmatique aléatoire » selon l’Arbitre qui, rappelant les
termes de l’article 1104, alinéa 2, et de l’article 1964 du Code civil, considère que
« l’événement incertain » dont dépend « l’équivalent » de la prestation de la
Demanderesse est constitué par le passage à la phase de développement, passage incertain
dont dépendaient les phases d’industrialisation et de vente. Le tribunal expose ainsi que:
« La question est de savoir si la Défenderesse a présenté:
— la technologie quasi cristalline comme étant aboutie et susceptible d'une
application industrielle certaine, impliquant une obligation de résultat quant à la
commercialisation immédiate alors que ladite technologie n 'en était qu 'au stade de
la recherche: dans ce cas, l’élément matériel serait constitué,
— ou la technologie quasi cristalline comme étant effectivement au stade de la
recherche, impliquant un « aléa » et/ou un « partenariat en vue de la commercia¬
lisation »: dans ce cas, l'élément matériel ne serait pas constitué.
Le contrat étant le reflet de l'intention commune des parties, il convient d’ana¬
lyser si les dispositions contractuelles du contrat de sous-licence pouvaient induire
la demanderesse en erreur, i.e. si la Demanderesse était en droit de considérer la
technologie des quasi-cristaux comme aboutie. Ainsi, comme il a été dit précédem¬
ment, le dol s'appréciant au jour de la formation du contrat, le Tribunal ne saurait
se fonder sur des faits postérieurs.
Le tribunal note que certaines stipulations contractuelles tendent à donner au
Contrat de sous-licence la nature d’obligation de résultat, i.e. une obligation
d’industrialisation des poêles revêtues de quasi-cristaux. Ainsi:
(i) le préambule du contrat de sous-licence ( ... ) établit que la Demanderesse
entend « bénéficier des brevets et du savoir-faire dans l’application suivante:
revêtement par projection thermique de poudre quasi cristalline [...] en vue
de prodidre des ustensiles de cuisson présentant les qualités propres aux quasi-
cristaux »;
(ii) la partie « Définition du contrat de sous-licence stipule que les 'Produits'
sont constitués de'tous les ustensiles de cuisson destinés tant au grand public
qu'aux professionnels' et que son 'Domaine' est 'l’activité consistant à fabriquer
et à revêtir en vue de leur production industrielle et de leur vente, les Produits avec
une poudre quasi cristalline »;
(iii) l’article 1.1 stipule que les brevets sont concédés « en vue de la fabrication
et de la vente des produits relevant du domaine du contrat »;
(iv) l’Article 3.1 stipule que « pendant la durée nécessaire à la mise au point et
au démarrage de la phase industrielle d’exploitation de la sous-licence »(...);

(v) l'Article 5 met à la charge de la Demanderesse une obligation d'exploiter la

sous-licence et « à faire diligence pour trouver des débouchés, notamment au
moyen d'une prospection commerciale et d’un effort publicitaire raisonnable.
De plus, l’article 5 prévoit que la Demanderesse doit 'satisfaire les commandes
de Produits », « assurer le servie? après-vente des produits » et les marques sous
lesquelles lesdits produits seront commercialisés:
(vi) l'Article 6.4 établit à la charge de la Demanderesse une obligation de
respecter les quotas de fabrication et de vente « qui constituent une condition
essentielle de la sous-licence » et dont la réalisation conditionne l’exclusivité de
la sous-licence dès lors que l’article 6.4 précise qu '« au cas où les quotas [ ... ] ne
seraient pas atteints f...]l 'exclusivité de la sous-licence serait résiliée de plein
droit »;
( vii ) l'Article 10.2 prévoit que « le présent contrat de sous-licence ayant pour
cotise et pour objet essentiel d'aboutir à une application industrielle économique¬
ment viable d’une invention scientifique majeure [ . . . ]»;
Par ailleurs, la phase d'industrialisation est expressément visée à l’Avenant
(Articles 1 et 3).
Il en ressort que lors de la conclusion du contrat de sous-licence, les parties
envisageaient une industrialisation très probable et imminente de l’application de
la technologie quasi cristalline.
Cependant, ainsi qu’il ressort d'autres termes du même contrat de sous-licence,
cette industrialisation n 'était pas certaine et était soumise à l’achèvement préal¬
able d’une phase de développement. Ainsi:
(i) le Préambule énonce que la Demanderesse « possède elle-même un savoir-
faire et une maîtrise reconnus ( . . . ), qui lui donnent une vocation à être associée à
l’élaboration du processus d’industrialisation des applications des Brevets et du
savoir-faire
(ii) l’Article 3.1 prévoit que la défenderesse s'est engagée à fournir une assis¬
tance technique 'pendant la durée nécessaire à la mise au point et au démarrage de
la phase industrielle d’exploitation de la sous-licence »
(iii) l'Article 10.2 énonce que « les délais et les efforts qui s’avéreront néces¬
saires pour parvenir à ce stade industriel ne peuvent être définitivement évalués à
ce jour » mais aussi, que les conditions de la durée de la sous-licence ont été
déterminées à partir des « prévisions moyennes », et enfin, le cas où, « le passage
au stade industriel d’exploitation des brevets et du savoir-faire [exigerait] un délai
et des investissements nettement supérieurs aux prévisions initiales ».
Par ailleurs, les termes de l’Avenant renforcent ce point de vue:
(i) l’Article 1 énonce ainsi que « la phase d’industrialisation ne sera mise en
œuvre qu 'en cas de succès de la phase I», i.e. la « phase de fin de développement »;
(ii) l'Article 2 prévoit expressément la participation de la Demanderesse à cette
« phase de fin de développement ».
Le Tribunal arbitral constate ainsi que, si les termes du contrat de sous-licence
laissent entrevoir une industrialisation très probable et imminente de la technolo¬
gie des quasi-cristaux, ils ne tendent pas moins à démontrer que la Défenderesse
n 'a pas présenté la technologie des quasi-cristaux comme étant aboutie dès lors
qu 'elle n'a pas dissimulé le fait que ladite technologie était encore dans une phase
de développement qui n’était pas achevée et devait 1"être au cours de l’exécution du
contrat de sous-licence.
Enfin le Tribunal relève que le contrat de sous-licence stipule comme seule
garantie « l’existence juridique et [ ... J la validité des Brevets ». Cette disposi¬
tion écarte ainsi toute garantie de la part de la Défenderesse quant au passage de la
phase de développement à la phase d’industrialisation et plus encore toute garantie
sur le succès commercial des poêles ».

—Zi
;
§j

Le Tribunal, après avoir estimé que « le présent contrat de sous-licence est un contrat
aléatoire, même si le terme « aléa » n 'est pas expressément énoncé », conclut dès lors que
« (i) la Défenderesse n 'a pas tenté de dissimuler à la Demanderesse à travers les termes du
contrat de sous-licence l’état d’avancement de la technologue quasi cristalline que ce soit
par des manœuvres dolosives, des mensonges ou encore une réticence dolosive, et (ii) la
Demanderesse avait connaissance de la nécessité d’aboutir à une phase de développement
avant d’aboutir à une phase d’industrialisation, i.e. avait donc connaissance du caractère
aléatoire du contrat de sous-licence ».
Le Tribunal écarte l’élément matériel du dol sur un autre point avancé par la
Demanderesse relatif à la capacité des autres intervenants, mais le retient en revanche
face à l’existence d’une clause du contrat de sous-licence faisant état de l’existence
d’un pilote industriel, inexistant en l’espèce.
Le tribunal souligne que « la Défenderesse a « menti » quant à l’existence du pilote
industriel dans les locaux de X. Or comme il a été dit précédemment, le mensonge sous-
entend la volonté d 'induire l 'autre en erreur dès lors que « l 'on concevrait mal que de tels
comportements puissent s'expliquer autrement que par la volonté d’induire le partenaire
en erreur » ». Le mensonge étant évident à la lecture de cette clause, l’élément intentionnel,
c’est-à-dire la volonté de tromper l’autre, est également caractérisée.
À l’inverse, ce deuxième élément est écarté concernant l’état d’avancement technolo¬
gique des quasi-cristaux et les compétences de ses partenaires contractuels, le tribunal
considérant que « la Défenderesse ayant exprimé la réalité de l’avancement de la tech¬
nologie quasi-cristalline au travers des termes du contrat. Son intention de tromper sa
cocontractante sur ces deux points n 'est donc pas établie ».
Enfin, quant au dernier élément, le caractère déterminant de l’erreur, le Tribunal ne le
considère pas constitué ni pour l’état d’avancement technologique, ni pour le pilote. Le
raisonnement du Tribunal face à ces deux points doit être distingué. Le Tribunal souligne
que la Demanderesse n’a demandé la nullité du contrat pour dol que huit ans après la
signature du contrat de sous-licence. Si le pilote avait réellement constitué un élément
déterminant du consentement de cette dernière, il paraît évident, comme le souligne le
tribunal, « qu’elle aurait dénoncé son absence et demandé la nullité du contrat dès lors
qu’elle aurait constaté l’absence dudit pilote ».
Quant au second point, l’état de la technologie des quasi-cristaux, le Tribunal place au
cœur de son analyse le caractère inexcusable de l’erreur en raison des compétences pro¬
fessionnelles de la Demanderesse, i.e. « de la connaissance qu’elle avait de l'état de la
technologie quasi-cristalline; de ses compétences professionnelles [...], des essais
qu 'elle a effectués sur ses propres installations ( ... ) », et conclut que « la
Demanderesse n 'a pas été victime d’une erreur et donc a priori d’une erreur déterminante.
Quand bien même elle l'aurait été, cette erreur n’aurait pas été provoquée par la
Défenderesse et n 'aurait pu être considérée comme excusable ».
Ainsi, le tribunal arbitral, tout en notant la position de la doctrine française selon
laquelle, « la réticence rend toujours excusable l’erreur (P. Malaurie et L. Aynès,
Obligation de contrat et quasi-contrat: Cujas, IIe éd. 2002) » semble toutefois faire
totalement abstraction de cette approche, l’arbitre écartant toute possibilité de réticence
dolosive, alors même que la Demanderesse mentionne dans son mémoire en réplique le fait
que la Défenderesse avait reconnu ne pas avoir transmis « des éléments primordiaux’ (la
poêle de référence et les moyens de contrôle (...), ce qui démontre que la Défenderesse
ne possédait pas à ce stade le plus petit commencement du savoir-faire pourtant promis ».
Le tribunal aborde ensuite la question de la nullité pour absence de cause, en prenant
soin de distinguer la cause objective de la cause subjective, seule l’absence de cause
objective au moment de la formation du contrat — c’est-à-dire l’absence de contrepartie
—
réelle , pouvant justifier la nullité dudit contrat, contrairement à la cause subjective dont
i
i
i’illicéité et non l’absence autorise à prononcer la nullité. Le tribunal souligne dès lors que
« siles motifs, i.e. la cause subjective, peuvent varier d’un contrat à un autre, il importe de
noter que « la cause est toujours la même pour un type de contrat donné » (F. Terré,
P. Simler et Y. Lequette, Les Obligations, T éd. 1998) ( ... ) plus précisément (i) dans un
contrat synallagmatique, la cause de l’obligation d'une partie réside dans l’obligation de
l'autre partie (Cass. ln civ., 12 juill. 1989: Bull. civ. 1989, 1, n°293) peu important « les
motivations personnelles à chaque partie » (Cass. 1n civ., 5 janv. 1999: RJDA 1999,
n° 376 - F. Terré, P. Simler et Y. Lequette, op. cit.); (ii) dans un contrat aléatoire, la
cause de l’obligation d’une partie est constituée par le risque ou la perte de chance d’un
gain, voulus par les parties. Dès lors, que cette chance et ce risque existent, l 'obligation a
une cause ».
Le Tribunal, après avoir écarté l’illicéité de la cause subjective au regard des termes du
contrat, va dès lors rechercher si le contrat synallagmatique, un contrat de sous licence en
l’espèce, constitutif également d’un contrat aléatoire, avait une cause objective, i.e. des
obligations à la charge du cocontractant et un risque de perte ou de chance d’un gain, au
moment de la conclusion du contrat.
Au regard des clauses du contrat, le Tribunal considère qu’il existait bien des obligations
—
à la charge de la défenderesse au jour de la conclusion du contrat une obligation de
délivrance des brevets, d’assistance technique, et une obligation de garantie « peu impor¬
—
tant que celle-ci soit limitée » mais prend soin d’examiner néanmoins si, en l’espèce, il
existe une contrepartie réelle, c’est-à-dire si les brevets sont valables et techniquement
exploitables. Si tel n’était pas le cas, ces obligations et leur corolaire, l’obligation de la
Demanderesse de verser une redevance et ses autres obligations financières, se trouveraient
sans cause. Le Tribunal considère dès lors que le cas particulier d’un brevet inexploitable
— —
techniquement et pouvant être annulé l’obligation du licencié se retrouvant sans cause
, est inapplicable en l’espèce dès lors que:
—
« le contrat de sous-licence comporte une limitation de garantie selon laquelle la
Défenderesse n’est responsable que de l'existence juridique et de la validité des
brevets:
— la Demanderesse a effectué et fait effectuer par l 'institut Ionesco, des essais
—
près d’un an avant la signature du contrat de sous-licence;
l’argumentation de la demanderesse repose sur le fait que les brevets sont
inexploitables commercialement et non techniquement or, ce risque était, indépen¬
damment de la limitation de garantie, à la charge de la Demanderesse;
— / 'argumentation de la Demanderesse ne se situe pas au jour de la formation
du contrat mais au jour de l’épuisement du lot 147-4.
Le Tribunal conclut donc que l‘obligation de la Demanderesse de payer des
redevances n’était pas, au jour de la signature du Contrat, dépourvue de cause ».
Enfin, le Tribunal considère qu’il existait bien un risque de non passage à la phase de non
industrialisation qui induisait un risque de perte et, à l’inverse, une chance de gain en cas de
passage à cette phase, ce qui justifie d’écarter l’absence de cause au regard du caractère
aléatoire du contrat de sous licence. Le tribunal rejette donc la demande de nullité pour
absence de cause.
Le tribunal procède par la suite à l’analyse des demandes subsidiaires de la
Demanderesse relatives à l’inexécution du contrat. Encore une fois, la construction de
l’argumentation de la Demanderesse, bien que surprenante en raison de la contradiction
inhérente entre demandes principales et demandes subsidiaires, ne justifie cependant pas le
rejet de ces moyens contrairement à la position de la Défenderesse. Le Tribunal considère,
en effet, qu’en l’absence de disposition sanctionnant une telle contradiction, il doit unique¬
ment « rechercher si il y a eu, ou non, inexécution, ou du moins mauvaise exécution, des
obligations incombant aux parties ». Il se prononce à cet égard sur cinq manquements
allégués de la Défenderesse, les deux premières justifiant par elles seules, selon la

--- -r-a-x-cr- -ü-I—T :::::ir:r *
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Demanderesse, l’engagement de la responsabilité de la Défenderesse sans qu’aucune
clause d’exclusion ne puisse être soulevée, dans la mesure où ils auraient rendu vains
ses efforts en vue d’une commercialisation du produit. Sont ainsi dénoncés les manque¬
ments à (i) son obligation de désigner un partenaire compétent aux fins d’assurer l’assis¬
tance technique nécessaire à l’exécution du contrat de souslicence, (ii) son obligation de
désigner un partenaire compétent pour fournir des poudres quasi-cristallines de qualité, (iii)
son obligation de fournir une poêle de référence et, enfin, (iv) des manquements relatifs au
respect de la procédure de contrôle des poudres quasi-cristallines. Le Tribunal rejette la
plupart de ces demandes faisant à la fois une application stricte du principe de force
obligatoire des conventions en procédant à une analyse des termes du contrat de sous¬
licence, mais laissant également part au jeu de la bonne foi afin de tempérer et même
ajouter aux dispositions contractuelles pour juger de certains manquements.
?ÿ S’écartant des termes stricts du contrat, le Tribunal souligne ainsi « que le bon sens et la
c bonne foi requis dans l'exécution d'un contrat portant sur les ustensiles alimentaires
exigent que la procédure de contrôle de la qualité des poudres soit la référence pour
les poêles postérieures à celles de référence. Dès lors, la Demanderesse était fondée à
croire que la Défenderesse avait l'obligation de contrôler la qualité des poudres quasi-
cristallines en respectant la procédure écrite dans ce document. Il convient de noter qu 'elle
était d'autant plus fondée à considérer cette obligation que le ministère de l'Economie
l'avait informée qu 'il rendait un avis favorable aux quasi-cristaux, dès lors que « le four¬
nisseur procède systématiquement à l 'analyse de chaque lot de poudre QC pour s'assurer
de la composition de celle-ci ». Le Tribunal arbitral décide que le mode opératoire de
contrôle des poudres devait s 'appliquer pour chaque nouveau lot de powlres réceptionné »
par la Défenderesse. De la même manière, le Tribunal sanctionne la mauvaise foi de la
Demanderesse en écartant sa demande relative à la non-conformité des poudres au regard
des normes alimentaires. Le Tribunal constate en effet que « la Demanderesse soutient que
la Défenderesse a failli à cette obligation car les poudres fournies n 'auraient pas rempli les
exigences des normes d’alimentarité établies par les autorités en octobre 2000. Or la
Demanderesse a quitté le projet en juillet 2000. Par conséquent, n’étant plus impliquée
au jour où les nouvelles normes sont entrées en vigueur, elle n’a pas d'intérêt à agir, i.e.
elle n'a pu souffrir d’aucune inexécution éventuelle du fait de la Défenderesse. Le Tribunal
arbitral relève que cette mauvaise foi de la Demanderesse dans cette allégation d'inex¬
écution est confirmée par ses propres développements sur ce point. En effet, elle reproche à
la Défenderesse de ne pas avoir appliqué les normes futures, i.e. étant encore non applic¬
ables, tout en reconnaissant qu'elle connaissait ces Jùtures normes mais qu'elle ne les avait
pas communiquées volontairement au motif que la.Défenderesse en tant que professionnel
devait s'informer. Or l'article 1134 du Code civil dispose que les parties doivent exécuter
de bonne foi les conventions, ce que la Demanderesse n’a pas fait en l’espèce (...) Le
Tribunal arbitral décide donc d'écarter cette demande ».
Enfin, le Tribunal analyse avec la plus grande rigueur l’existence d’un lien de causalité,
et non la preuve d’une simple concomitance, entre le préjudice et le manquement allégué,
rejetant dès lors par ce motif la plupart des demandes de la Demanderesse. À cet égard, le
Tribunal souligne que « la Demanderesse n'apporte pas la preuve de l'incompétence de X.
mais seulement de ce que les produits n 'étaient pas commercialisables, sans établir le lien
entre cette non-commercialisation et les qualités de l'assistance fournie par X. Ainsi, la
Demanderesse s 'en tient à une simple remise en cause de la qualité du savoir-faire transmis
par la Défenderesse à la société X. sans en apporter la preuve », ou encore « le Tribunal
arbitral considérant qu'il n'a pas suffisamment d’éléments pour déterminer si les diffi¬
cultés dit projet sont dues à la composition de la poudre, à la méthode de projection
thermique ou encore à la phase de polissage, ne peut conclure sur la cause précise des
difficultés rencontrées par les parties. Cependant, il semble avéré que chacune des phases
du process n 'avait pas atteint son stade final, nécessitant encore des recherches dans leur

domaine ». Quand à la prétendue incompétence d’un fournisseur, le Tribunal relève que

« comme pour X., elle [la Demanderesse] n’apporte pas la preuve d'un lien entre les
défauts des poêles revêtues et les poudres fournies ».
Le tribunal arbitral ne retient ainsi que deux inexécutions de la Défenderesse: le man¬
quement à l’obligation de la Défenderesse de fournir des poudres conformes aux exigences
établies par les parties et à l’obligation d’effectuer la procédure de contrôle des poudres.
En l’absence de dispositions contractuelles relatives aux dommages et intérêts en cas
d’inexécution, le tribunal arbitral procède à une application stricte de l’article 1147 et 1151,
en d’autres termes, la causalité est encore une fois centrale dans le raisonnement du
Tribunal. L’arbitre conditionne ainsi le droit à réparation à « (i) une inexécution contrac¬
tuelle ayant entraîné (ii) un préjudice dont il est établi le lien de causalité avec l’inexécu¬
tion contractuelle (C. Larroumet, Droit civil, Les obligations, Le contrat: Economica, t. Ill,
5e éd. 2003) », et prend soin de rappeler, au risque d’une certaine redondance, que « le
dommage doit être une suite immédiate et directe de l 'inexécution de la convention (Article
1151 du Code civil): selon la doctrine, «le dommage direct n‘est, en réalité, qu’une façon
de désigner l 'exigence d 'un lien de causalité entre l'inexécution imputable au débiteur et le
préjudice éprouvé par le créancier » (C. Larroumet, Droit civil, op. cit. § 654). La faute ne
sera source de responsabilité que si elle est effectivement à l 'origine du dommage. Ainsi, la
jurisprudence refuse d’admettre la responsabilité du débiteur en se fondant sur l’absence
de lien de causalité entre l’inexécution et le dommage éprouvé (Versailles, 15 févr. 1998:
JCP 1998, IV, 367) ».
L’Arbitre souligne que « la Demanderesse invoque « en tout état de cause », i.e. quelle
que soit la décision du Tribunal arbitral sur le dol, l'absence de cause et les inexécutions
alléguées, son droit à dommages et intérêts du fait de l'échec du projet. De ce fait, elle sous-
entend que la faute contractuelle de la Défenderesse résulterait de l’absence de réussite
commerciale. Or, comme il a été analysé précédemment, le contrat de sous-licence est un
contrat aléatoire sans obligation de résultat dont la seule garantie est limitée à l’existence
des brevets. Ainsi, (i) l'existence des brevets n’étant pas mise en cause et (ii) le contrat de
sous licence ne garantissant aucune réussite commerciale, le Tribunal arbitral ne saurait
retenir à l’encontre de la Défenderesse l’inexécution du contrat pour défaut de réussite
commerciale. Ainsi, les seules inexécutions retenues pour fonder l’éventuelle responsabil¬
ité contractuelle de la Défenderesse sur le fondement de l’article 1147 du Code civil sont
les deux inexécutions mentionnées ».
Le Tribunal considérant toutefois que la première condition de responsabilité, la preuve
d’une faute imputable à la Défenderesse, n’étant rapportée pour aucune des demandes d’indem¬
nisation pour les investissements de la Demanderesse, il rejette dès lors chacune d’elles au motif
qu’« aucune des parties n'a fourni de preuves suffisantes pour déterminer la cause précise de
l'échec du projet. Le Tribunal arbitral ne peut dès lors imputer l'échec du projet aux deux
inexécutions de A. ». De la même manière, l’arbitre rejette les demandes d’indemnisation pour
dégradation de l’image et pour les produits défectueux sur ce même motif, considérant qu'au¬
cune faute n’est imputable à la Défenderesse.
Quant aux demandes en réparation de la Défenderesse, l’arbitre estime que la seule faute
imputable à la Demanderesse est un manquement à son obligation d’information au nom du
principe d’exécution de bonne foi des conventions. L'arbitre considère toutefois qu’aucun
préjudice n’est constitué, « /'échec du projet ne pouvant être imputé à aucune des parties et
les investissements engagés étant les conséquences normales d’un contrat de sous-licence
prévoyant une phase de recherche de développement ». Le lien de causalité est, par con¬
séquent inexistant.
Rejetant toute indemnisation des parties, l’arbitre procède néanmoins à une hiérarchisa¬
tion des fautes de ces dernières afin de déterminer la répartition des frais de la procédure,
considérant que: « les seules fautes imputables à B [la Demanderesse] sont de ne pas avoir

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informé de bonne foi A. [la Défenderesse] de l’évolution de ses connaissances dans le

domaine de l’alimentarité et des nouveaux développements dans le processus industriel de
fabrication. En revanche, A. a commis deux fautes qui semblent, au Tribunal, avoir porté
atteinte plus sérieusement à la nature normale des relations entre partenaires économi¬
ques. Le non-respect de l’obligation de contrôle des lots de poudre, d’une part, le non-
respect de l'obligation de fournir une poudre conforme et constante aux caractéristiques
établies d’un commun accord, d'autre part, n’ont pas été de nature à faciliter la tâche de la
Demanderesse, constituant ainsi une violation contractuelle. Certes, le Tribunal arbitral
n'a pas été en mesure d’attribuer spécifiquement l'échec du projet à l 'une des parties mais
le comportement de A. [la Défenderesse] est plus critiquable que ne l’a été celui de B. [la
Demanderesse] ».
Æ"
ï"-
NOTE. — I.— La question de la nullité du contrat principal est centrale dans cette
sentence. À cet égard, il convient préalablement de souligner qu’à aucun moment la
validité de la clause compromissoire et, corrélativement, la compétence de l’arbitre,
n’ont été remises en cause par les parties, ce qui illustre une parfaite compréhension du
principe de séparabilité de la clause compromissoire. On ne saurait rappeler en effet qu’en
matière de vices de consentement, sauf en matière de violence ou peut être d’escroquerie à
l’encontre d’une partie, « la clause compromissoire n 'est pas directement atteinte, et elle
doit être considérée comme valable indépendamment du sort des autres clauses, afin que ce
sort puisse être déterminé par voie d’arbitrage conformément à la volonté des parties »
(P. Mayer, Les limites de la séparabilité de la clause compromissoire: Rev. arb. 1998, n°2,
p. 359 à 368, §10).
Le rappel rigoureux et méthodique du Tribunal des principes de droit français préalable¬
ment à sa décision en matière de nullité pour dol et pour absence de cause mérite une
certaine attention dans la mesure où il semble refléter un souci, au-delà de la simple clarté
de la motivation de la sentence, de compenser, voire combler, par la rigueur du raisonne¬
ment juridique, les innombrables incertitudes factuelles caractérisant cette complexe affaire
de propriété industrielle. On ne peut que citer la « conclusion », pour le moins surprenante de
l’arbitre, tant elle semble illustrer le délicat tâtonnement de l’arbitre face à la multitude de
faits ayant conduit à l’échec du « miracle » annoncé des quasi-cristaux. Celui-ci prit soin en
effet de préciser, avant de se prononcer sur une répartition des frais de procédure d’autant
plus inattendue à la lecture de cette parenthèse dans son raisonnement juridique, qu’« en
concluant cette sentence l’arbitre comprend les sentiments de frustration, de peine et de
chagrin qui ont été ressentis à la suite de l‘échec de leur projet commun. H est profondément
sensible aux aspects humains de ce dossier. Comme tout échec, celui-ci est traumatisant
pour ceux qui y avaient placé un énorme espoir ». Loin de faire preuve d’un tel « senti¬
mentalisme » dans ses considérations relatives aux différentes demandes des parties,
l’Arbitre prit à l’inverse soin de s’appuyer et de rappeler systématiquement le texte de
droit et son principe, la position de la jurisprudence et de la doctrine, et l’application au
cas d’espèce pour chaque demande des parties dans une conception objective et économique
du dol. Néanmoins, la rigueur apparente du raisonnement n’empêche pas l’arbitre d’appli¬
quer en dernier lieu des principes et des obligations implicites dégagés par la lex mercatoria
visant à sanctionner le manquement d’un professionnel à son « obligation d’information »:
la question du caractère excusable ou non de l’erreur est ainsi au cœur du raisonnement de
l’arbitre, contrairement au raisonnement appliqué par les juges français.
Après avoir rappelé la nécessaire réunion des trois éléments constitutifs du dol selon
l’article 1116 du Code civil français
déterminante de la victime — — élément matériel, élément intentionnel, et erreur
, l’arbitre procède à une analyse des termes du contrat de
sous-licence afin de dégager l’intention des parties en s’appuyant sur la description contrac¬
tuelle de l’état d’avancement de la technologie litigieuse sur laquelle les parties se sont
accordées.

À coté de cette analyse classique de la volonté de tromper au regard des dispositions

contractuelles, la présomption de compétence professionnelle retenue par le Tribunal afin
de se prononcer sur le caractère déterminant de l’erreur mérite d’être soulignée et préfigure
notamment son raisonnement en matière de cause. Le Tribunal souligne ainsi le caractère
inexcusable de l’erreur de la Demanderesse du fait «de la connaissance qu 'elle avait de
l'état de la technologie quasi cristalline; de ses compétences professionnelles [...], des
essais qu 'elle a effectués sur ses propres installations (...)». La. sanction de la présomp¬
tion de compétence professionnelle lors de la conclusion du contrat n’est pas nouvelle: elle
fût utilisée dès 1966 dans l’affaire CCI n° 1307 et a été régulièrement confirmée depuis (cf.
sentences citées dans le commentaire de l’affaire CCI n° 10982 de 2001 par Yves
et Bertrand Derains, notamment les sentences de 1975 dans les affaires n° 2438: JDI
1976, p. 969; sentence n° 2281: JDI 1980, p. 990; sentence n°3380; JDI 1981, p. 927.
— sentence n° 3130: JDI 1988, p. 932. — sentence n° 5346: JDI 1991, p. 1060).
Si la position adoptée par le Tribunal arbitral s’inscrit dans la lignée de la jurisprudence
arbitrale en matière de dol, elle apparaît toutefois à contre courant de la solution actuelle
retenue par la Cour de cassation française qui considère, comme le résume M. Ghestin, que
« l'erreur est toujours excusable lorsqu'elle a été provoquée par ledol de l‘autre partie »
(J. Ghestin, Traité de droit civil, Les obligations, Le contrat: formation: LGDJ, 3* éd. 1993,
«° 564). À suivre ces arrêts, il semble donc qu’il est mutile de s’interroger sur la question de
savoir si la victime du dol a ou non commis une erreur excusable. A l’inverse, l’arbitre
fonde toute une partie de son analyse quant à la caractérisation de l’erreur déterminante sur
une appréciation in concreto de la vraisemblance de la méprise en soulignant les termes du
contrat de sous-license et en insistant sur les compétences professionnelles de la
Demanderesse. L’arbitre, en concluant que « la Demanderesse n’a pas été victime
d'une erreur et donc a priori d’une erreur déterminante. Quand bien même elle l’aurait
été, cette erreur n'aurait pas été provoquée par la Défenderesse et n 'aurait pu être con-
sidérée comme excusable », rejette l’idée selon laquelle la caractérisation de manoeuvres ou
la réticence dolosive puissent, à elle seules, justifier l’abandon de la condition d’erreur
excusable ou, tout du moins, que cette condition soit réputée automatiquement satisfaite.
Contrairement à la conception morale et subjective du dol retenue par la Cour de cassation
dans son arrêt du 3 février 2001 (Cass. 3e civ., 21 févr. 2001: Bull. civ. 2001, III, n°20),
l’arbitre déduit des termes du contrat et des compétences professionnelles de la
Défenderesse le caractère non seulement inexcusable mais aussi inexistant de l’erreur
alléguée.
L’impact du dol sur le caractère excusable de l’erreur n’apparaît en effet dans son
raisonnement que dans un second temps. Loin de considérer, conformément à la position
de la Cour de cassation, que le dol, en tant que faute intentionnelle, doit être sanctionné
alors même que le contractant aurait commis une faute d’imprudence en négligeant de
s’informer, l’arbitre fait application de la jurisprudence arbitrale classique en matière de
dol en sanctionnant le défaut de vérification ou de renseignement de la Demanderesse qui
alléguait avoir été trompée sur l’état d’avancement de la technologie des quasi-cristaux.
L’obligation de se renseigner apparait dès lors comme le corolaire, implicitement sanc¬
tionné par l’arbitre, des compétences professionnelles de la Demanderesse, conformément
à une analyse des rapports de force en présence imprégnée des principes de la lex merca-
toria, et non du droit et de la jurisprudence française.
d’un droit national applicable par les parties — —

On peut en effet y voir l’une des applications de la lex mercatoria en dépit du choix
décrite par M. Gaillard (E. Gaillard,
Aspects philosophiques du droit de l’arbitrage international: Martinas, 2008, p. 152 à
162).
—
II. Concernant la demande en nullité pour absence de cause, il convient de revenir sur
le cas spécifique d’un contrat de sous-licence portant sur un brevet techniquement inex¬
ploitable. L’Arbitre rejette cet argument aux motifs que:
« le contrat comporte une limitation de garantie selon laquelle la Défenderesse n'est
responsable que de l'existence juridique et de la validité des brevets; la Demanderesse a

---i-Z:"-:-; -
S
Si
effectué, et fait effectuer par l 'Institut Ionesco, des essais près d 'un an avant la signature du
contrat de sous-licence.
L’argumentation de la Demanderesse repose sur le fait que les brevets sont inexploi¬
tables commercialement et non techniquement or, ce risque était indépendamment de la
limitation de garantie, à la charge de la Demanderesse.
L 'argumentation de la Demanderesse ne se situe pas au jour de la formation du contrat
mais au jour de l'épuisement du lot [référence]. Le Tribunal conclut donc que l‘obligation de
payer des redevances n'était pas, au jour de la signature du Contrat, dépourvu de cause »
(p. 78 et 79).
Tout le raisonnement de l’arbitre est ainsi centré sur la distinction entre application indus¬
trielle et commerciale, la première constituant l’unique cause du contrat de sous-licence.
¡h’
Il convient de préciser qu’au-delà du débat de l’impact de la clause de limitation de
* garantie sur la détermination de la cause du contrat de souslicence, la jurisprudence refuse
traditionnellement de considérer l’absence de résultat escompté par les parties comme une
hypothèse d’absence de cause. Ainsi, même en présence d’un savoir-faire réel lors de la
conclusion du contrat mais ultérieurement dépassé, la jurisprudence a écarté l’annulation et
même la réduction des redevances pour absence de cause, considérant que c’est la révéla¬
\ ■
tion du savoir faire qui constitue l’obligation de payer (Cass, corn., 13 juill. 1966, n° 64-
12.496). Contrairement aux allégations de la Demanderesse, qui soutient qu’« en tout état
de cause, l’impossibilité d’une telle commercialisation est aujourd'hui avérée, et le contrat
dépourvu de cause, ne pourra dès lors qu’être annulé de ce chef» (p. 67), le refus de
l’annulation sur le fondement de la cause est soutenu par la jurisprudence et la doctrine
qui considèrent que « l’inutilité du contrat n 'est pas impliquée par l’économie même de
celui-ci. L'objet de la contrepartie n’est pas inexistant. Son inutilité peut alors être éven¬
tuellement prise en considération sur un autre fondement, notamment pour erreur sur la
substance » (J. Ghestin, Traité de droit civil, Les obligations. Le contrat: formation: LGDJ,
3e èd. 1993, nù 854). L’arbitre ayant qualifié la convention comme étant aléatoire et ayant
rejeté l’existence d’une erreur déterminante quant à l’état d’avancement technologique des
quasi-cristaux, ce moyen fondé sur l’erreur aurait eu, en l’espèce, peu de chance de con¬
duire au prononcé de la nullité. Mais, plus que l’erreur relative aux chances d’application
industrielle, Teneur aurait pu être considérée comme déterminante si Verrons avait apporté
la preuve d’une «perte que ne peut justifier la conscience du caractère aléatoire de son
—
engagement » (JCl. Contrats Distribution, Fase. 45, «° 36, Erreur et aléa), une hypoth¬
èse non considérée en l’espèce par l’arbitre, la Demanderesse s’étant fondée, à tort, sur
l’absence de cause et non sur Teneur substantielle.
Concernant le cas particulier de l’annulation d’un contrat de sous-licence portant sur un
brevet techniquement inexploitable, on peut regretter que le rejet de cette hypothèse n’ait
pas été plus motivé par l’arbitre. Cette hypothèse découle de la considération de l’arbitre,
conformément à la position de la doctrine et de la jurisprudence modernes, que la licence de
brevet présente toutes les caractéristiques d’un contrat de louage de chose (J.-J. Burst,
Breveté et licencié, Leurs rapports juridiques dans le contrat de licence: Litec, 1970). Il
résulte de cette analyse qu’une telle convention tisse entre les parties un réseau de droits et
d’obligations réciproques qu’il conviendra d’analyser par rapport aux règles relatives au
bail, telles que les articles 1719 et suivants du Code civil. En termes de garantie, conformé¬
ment à l’article 1721 du Code civil, le bailleur auquel est assimilé le donneur de licence doit
garantir pour tous les vices ou défauts de la chose louée qui en empêchent l’usage.
Concernant les vices matériels, le donneur de licence garantit le caractère techniquement
exploitable de l’invention (Cass, corn., 24 juin 1975. n° 74-10.555: Bull. civ. 1975, IV,
—
n°214; D. 1976, jurispr. p. 193, note Schmidt. Cass, corn., 11 juill. 1988, n° 87-12.940:
Bull. civ. 1988, IV, n° 235) à l’exclusion de sa valeur commerciale (CA Paris, 26 mai 1975:
—
Ann. propr. ind. 1975, p. 232. TGI Paris, 24févr. 1975: PIBD 1975, III, p. 401).

Cette distinction entre exploitation technique et commerciale s’avère toutefois délicate.

L’Arbitre prend soin à cet égard de souligner qu’il « a constaté qu'il y a bien eu commer¬
cialisation, même si celle-ci n'a pas rencontré le résultat escompté ». Peut-on néanmoins
parvenir à une telle conclusion face à l’échec total du projet des quasi-cristaux et à l’impos¬
sible commercialisation des produits fabriqués en raison notamment de leur incapacité à
satisfaire les nonnes sanitaires en dépit des modifications du projet? La frontière entre le
caractère techniquement inexploitable et commercialement inexploitable est plus que
ténue: « entre le vice matériel rendant l’invention techniquement inexploitable dont le
donneur de licence est certainement tenu et le succès commercial de l’invention qu’il
ne garantit évidemment pas, il y a place pour le défaut qui n 'empêche pas véritablement
la réalisation de l'invention mais qui est si grave qu'il en interditpratiquement la com¬
mercialisation. La possibilité d’exploitation doits'entendre d'abord du point de vue tech¬
nique. Mais elle doit également s'entendre du point de vue commercial: si l'invention n 'est
réalisable que dans des conditions de laboratoire, ou à des prix qui interdisent l'accès du
marché, l’invention doit être considérée comme inexploitable (CA Paris, 2 juin 1988:
D. 1988, IR p. 202). La Cour précise que l 'impossibilité doit être constituée par des difficultés
insurmontables dont la preuve doit être rapportée par le licencié » (JCl. Brevers, Fase.
4730). La technologie des quasi-cristaux, en dépit de la très faible production et commer¬
cialisation sur lesquelles s’appuient l’arbitre, pourrait dès lors bien être considérée comme
« techniquement inexploitable » au regard du droit français, à condition toutefois d’établir
un « vice de conception » insurmontable affectant le brevet.
La difficulté de l’affaire commentée, face à la technicité des fautes alléguées et à la
pluralité d’acteurs impliquée, explique néanmoins le choix de l'arbitre de s’en tenir à une
lecture stricte de la responsabilité des parties au regard de la clause de limitation de garantie
contenue dans le contrat de sous-licence. Mais cette clause fait-elle irrémédiablement
obstacle à la demande de nullité de la Demanderesse? La clause qui restreint la garantie
contre les vices cachés est valable dans les conditions du droit commun ce qui implique, en
d’autres termes, que seul le donneur de licence de bonne foi puisse s’en prévaloir. A
l’inverse, celui qui connaissait le vice matériel ne saurait opposer à son licencié une clause
de non-garantie. Dès lors, on ne peut que regretter que le Tribunal arbitral ne se soit pas plus
penché sur la question de savoir si la Défenderesse « n 'avait pas, dès la conclusion du
contrat, connaissance de ce que le produit ne répondait pas aux critères d’alimentarité
autorisant sa commercialisation » (extrait de la Requête d’arbitrage, p. 66). Encore une
fois, l’arbitre semble faire prévaloir la présomption de compétence professionnelle de la
Demanderesse sur la question de la détermination de la bonne foi de la Défenderesse et de
son éventuelle dissimulation d'information.
—
III. Concernant les demandes des deux parties relatives à l’inexécution de leurs
obligations mutuelles, la bonne foi sous-tend à de nombreuses reprises l’analyse de
l’Arbitre. Affirmé par le droit européen, par les principes UNI-DROIT (article 5.1 de la
version de 2004 des principes UNIDROIT relatifs aux contrats du commerce international),
le principe de bonne foi ou de coopération est reconnu par la pratique arbitrale comme un
principe général du commerce international (V. les nombreuses références citées dans
l’affaire CCI n° 6673 (1992) in Recueil des sentences arbitrales de la CCI 1991-1995:
sentences 1784, 2114, 3099 et 3100, 3267,3131, 2520, 2508, Derains elJarvin: Recueil des
sentences arbitrales de la CCI, Kluwer-ICC publishing, p. 10, 53, 67, 76, 122, 278 et 292).
On peut notamment citer la sentence CCI n° 2443 rendue en 1975 où le tribunal arbitral
considéra que les parties « devaient être parfaitement conscientes que seule une coopéra¬
tion loyale, totale et constante être elles pouvait éventuellement permettre de résoudre, au-
delà des difficultés inhérentes à l’exécution de tout contrat, les nombreux problèmes résul¬
tant de l'extrême complexité dans la formulation et l’enchevêtrement des engagements
litigieux . . . Cette obligation, qu'à juste titre la doctrine moderne retrouve dans la bonne
foi qui doit gouverner l'exécution de toute convention, s'impose » (in obs. Y. Derains ss

i
i-í

l’affaire n° 2291: JDI 1976, p. 989). On ne peut que souligner l’importance, en l’espèce,
d’une telle coopération de bonne foi tout au long de l’exécution du contrat de sous-licence
face aux difficultés évidentes rencontrées par tout contractant dans le cadre du développe¬
ment d’une technologie nouvelle.
L’arbitre a ainsi fort justement sanctionné le comportement déloyal de la Demanderesse
qui s’était volontairement et sciemment abstenue de communiquer à la Défenderesse les
nouvelles normes sanitaires applicables à leur production. L’arbitre relève dès lors « cette
mauvaise foi de la Demanderesse dans cette allégation d’inexécution confirmée par ses
propres développements sur ce point. En effet, elle reproche à la Défenderesse de ne pas
avoir appliqué des normes futures, i.e. encore non applicables, tout en reconnaissant
qu’elle connaissait ces futures normes mais qu’elle ne les avait pas communiqués volon¬
S"
tairement au motif que la Défenderesse en tant que professionnel avait un devoir de
s’informer. Or l’article 1134 du Code civil dispose que les parties doivent exécuter de
bonne foi les conventions, ce que la Demanderesse n'a pas fait en l’espèce ».
Cette solution n’est pas nouvelle et confirme un devoir d’information déjà sanctionné
par la jurisprudence arbitrale, un devoir justifié moins par des considérations de «justice
distributive » ou de « moralisation » des rapports contractuels, qu’au nom de l’efficacité
économique et de la sauvegarde même du contrat: « the requirement that each party inform
its co-contractor of circumstances liable to jeopardize the performance of the contract has
sometimes been presented as a rule with a more general scope. Thus, as observed in an ICC
award made in 1985, the parties' obligation to collaborate with a view to ensuring that the
contract is properly performed imposes ( . . .) on each party a duty to inform, inparticidar»
(Sentence citée parSigvardJarvin, L 'obligation de coopérer de bonne foi. Exemples d'appli¬
cation au plan de l’arbitrage international in L’apport de la jurisprudence arbitrale, ICC
Publishing, p. 157).
Dans cette optique, l’arbitre accueille également une des demandes de la Demanderesse
en dépit du silence de la convention quant à l’obligation supposément violée, ajoutant par la
même à la loi des parties au nom du principe d’exécution de bonne foi. L’arbitre, en
considérant la bonne foi comme source d’obligations en dehors de toute stipulation con¬
tractuelle, consacre dès lors une conception active et on ne peut plus moderne de la bonne
foi, qui contraste néanmoins avec le peu de place laissée à cette dernière lors de la conclusion
du contrat et de son examen du dol. Comme le souligne Y. Picot, « la « bonnefoi-loyauté » est
une directive, un clin d’œil adressé au juge. A lui de dégager toutes les obligations con¬
tractuelles qui en résultent. » (I. Picot, Le devoir de loyauté dans l’exécution du contrat:
LGDJ 1989, p. 87). L’arbitre confirme cette approche, considérant en l’espèce que « le bon
sens et la bonne foi requis dans l'exécution d’un contrat portant sur des ustensiles alimen¬
taires exigent que la procédure de contrôle de la qualité des poudres soit la référence pour les
poêles postérieures à la poêle de référence. Dès lors, la Demanderesse était fondé à croire
que la Défenderesse avait effectivement l'obligation de contrôler la qualité des poudres
quasi-cristallines en respectant la procédure établie dans ce document ». La présomption
de compétence professionnelle voire d’égalité entre cocontractants consacrée par la lex
mercatoria conduit ainsi l’arbitre à écarter toute obligation précontractuelle d’information
mais à consacrer une obligation d’information tout au long de l’exécution du contrat au nom
de la protection, non pas de la partie supposée plus faible ou, en d’autres termes, de la moins
informée, mais au nom du maintien de l’efficacité du contrat.
—
IV. Enfin, la décision du tribunal arbitral quand à la répartition des frais d’arbitrage
mérite d’être soulignée à deux égards. Conformément aux dispositions de l’article 31 (3) du
Règlement d’arbitrage de la CCI, le tribunal arbitral « liquide les frais de l’arbitrage et
décide à laquelle des parties le paiement en incombe ou dans quelle proportion ils sont
partagés entre elles ». Le Règlement d’arbitrage de la CCI ne donne aucune règle ou critère
particulier à suivre par les arbitres qui sont donc libres de rendre la décision qu’ils

souhaitent sous réserve de la motiver, ce qui explique l’absence d’homogénéité de la

pratique arbitrale en la matière.
On ne peut qu’être surpris dans un premier temps face au raisonnement de l’arbitre en
l’espèce qui, après n’avoir accordé aucune indemnisation à aucune des parties, considérant
que l’échec du projet ne pouvait être imputé à aucune d’entre elles, met à la charge de la
Défenderesse deux tiers des frais d’arbitrage et deux tiers des frais raisonnables exposés par
les parties pour leur défense.
11 convient de comparer la sentence commentée à ime affaire CCI, non publiée, où le
tribunal arbitral considéra que « « despite the magnitude of the efforts and the ressources
deployed by the parlies neither one nor the other has really obtained a victory ».
Accordingly, the tribunal found it equitable to divide equally the arbitration expenses,
and to provide that each side would support its own legal fees » (affaire citée in
International Chamber of Arbitration, Third Edition, L. Craig, W. Park, J. Paulsson,
p. 396). Ces deux sentences illustrent ainsi, une nouvelle fois, la discrétion totale dont
jouissent les arbitres dans leur décision relative à la répartition des frais de procédure.
Alors même que le comportement des parties en cours de procédure ou encore leur
bonne foi a été pris en compte par l’arbitre conformément à une certaine pratique arbitrale
en la matière (V. notamment M. W. Bühleret Th. H. Webster, Handbook of ICC Arbitration
— Commentary, Precedents, Materials, Thomson/ Sweet&Maxwell, 2005, 1st ed.,§31 à41,
—
p. 368. R. Kreindler, Final Ruling On Costs: Loser Pays All? in ASA Special Series «°
26, July 2006; Best Practices in International Arbitration: ASA Conference of January 27,
2006, Zurich, p. 41. — M. Bühler, Awarding Costs in International Commercial
Arbitration: an Overview: Bull. ASA 2004, p. 249), la coopération de bonne foi des
deux parties tout au long de la procédure n’influe pas sur cette surprenante répartition
des frais d’arbitrage.
En outre, on peut regretter le caractère quelque peu sommaire de la motivation en
l’espèce, l’aibitre ayant procédé à une hiérarchisation des fautes commises par les deux
parties paraissant, à première vue, plus que subjective, notamment par la qualification du
comportement de la Défenderesse comme étant «plus critiquable» que celui de la
Demanderesse. Doit-on néanmoins déduire de la référence à « la violation contractuelle »
de la Défenderesse la volonté de l’arbitre de sanctionner le principe pacta sunt servanda en
usant de son pouvoir discrétionnaire à l’heure de la répartition des frais, après avoir pris soin
de ne pas violer le principe de causalité en allouant des dommages et intérêts indus au regard
de ce principe fondamental du droit français? En tout état de cause, l’arbitre distingue la
violation des obligations nées du contrat de la violation des obligations nées du principe de
bonne foi, les premières primant, dans son optique, sur les secondes.
Loin de s’écarter de la jurisprudence CCI en la matière, cette sentence confirme, comme
nous l’avions déjà souligné dans de précédentes affaires, que « la règle en matière de
procédure d'arbitrale CCI, s'il en existe une, serait plutôt que les arbitres distribuent
librement ces frais entre les parties » (V. E. Silva-Romero, JDI 2006, p. 1453).
Mes remerciements vont à Julie Fabreguettes pour son aide dans la préparation de cette
chronique.
E. S.-R.
— Mots-Clés: Arbitrage international

Nullité — Chambre de commerce internationale — Contrat
780 Reprinted from the Chinet

¡
Sentence finale rendue dans l’affaire CCI n° 12855 en 2004 (original en langue
française)
I. Contrat. —
Agence commerciale. — Voyageur de commerce. —
Qualification. — Régime juridique applicable. — Conséquences sur la
compétence du Tribunal arbitral.
IL — Rupture du contrat. — Indemnité de clientèle. — Article 418 u (1) du
Code suisse des obligations. — Nature juridique. — Considérations d’équité.
3'
i;
ni. — Frais de l’arbitrage.
tribunal arbitral.
— Répartition. — Pouvoir d’appréciation du
La sentence arbitrale souligne l’importance de la qualification de la relation contrac¬

tuelle entre les parties en raison du régime juridique applicable à chaque type de contrat et
de ses effets sur la compétence du tribunal arbitral. Les différends liés à un contrat d’agence
commerciale peuvent être soumis à l’arbitrage contrairement aux litiges liés à un contrat de
voyageur de commerce.
L’allocation d’une indemnité de clientèle en droit suisse a pour but de compenser la
valeur commerciale de la clientèle qui a été développée par l’agent au nom et pour le
compte du mandant, qui continue d’en tirer profit à l’issue de la relation contractuelle. Elle
n’a pas pour objectif de réparer un préjudice subi par l’agent. Elle est soumise aux con¬
ditions prévues à l’article 418 u (1) du Code suisse des obligations, lesquelles sont appré¬
ciées in concreto. L’augmentation de la clientèle doit être sensible. Elle est due au travail de
l’agent et le mandant en retire un avantage certain à la fin du contrat. L’allocation de
l’indemnité n’est pas automatique pour autant en raison des considérations d’équité.
Elle peut être refusée à l’agent si ce dernier a bénéficié de conditions favorables qui ont
facilité l’exécution du contrat et le développement de son activité.
La sentence arbitrale rappelle aussi le pouvoir souverain du tribunal arbitral de répartir
les fiais de l’arbitrage conformément à l’article 31 du Règlement CCI.
Les parties ont conclu en 1998 un contrat qualifié de « contrat d’agence commerciale »
par le demandeur X., un agent commercial de nationalité française et de « contrat de
représentation commerciale » par le défendeur Y., une société hongroise. Le contrat a
été rompu avec effet immédiat en 2002 par le défendeur aux motifs que le demandeur
aurait violé ses obligations contractuelles.
C’est dans ce contexte que le demandeur a saisi la Cour internationale d’arbitrage de la
CCI aux fins de faire constater que la résiliation du contrat était fautive et d’obtenir le
paiement d’arriérés de commissions et diverses indemnités en application du droit suisse
qui a été choisi par les parties.
L’arbitre unique, siégeant à Paris, a procédé, dans un premier temps et conformément à
l’acte de mission signé avec les parties, à la qualification du contrat en raison de la diver¬
gence de dénomination utilisée par les parties et de son impact sur la compétence arbitrale.
En effet, c’est de la qualification retenue que l’arbitre pourra se déclarer compétent ou non.
Selon le demandeur, il s’agit d’un contrat d’agence commercial car « il était chargé, en
toute indépendance et à titre permanent, de négocier des affaires au nom et pour le compte
du défendeur ce qui correspond à la définition que donne de l'agent le code suisse des
obligations (art. 418 a) applicable en l'espèce. Si l'arbitre devait considérer que [le
demandeur] est un salarié du [défendeur], il devrait se déclarer incompétent et le litige

devrait en vertu des dispositions impératives du Code du travail français être soumis au
Conseil des Prud’hommes de [ville] . . . ».
Le défendeur conteste que le demandeur soit « un agent commercial au sens du droit
suisse des obligations compte tenu du lien de subordination existant entre lui et la société
Y ... le [demandeur] est un voyageur de commerce, salarié de la société Y. soumis aux
articles 347 et suivants du Code suisse des obligations suisses. Il cite parmi d’autres pour
justiifier cette qualification le fait que les missions confiées au [demandeur] soient lim¬
itatives (art. 5), que [le demandeur] ne puisse faire des offres "que sur la base des con¬
ditions et prix fixés par le mandant” (art. 5.5), et qu'il soit tenu de fournir un certain
nombre d’informations au mandant (art. 6.4 et 6.5) et de faire un rapport mensuel (art. 5.9),
que le demandeur ne détermine pas la politique commerciale qui " est la décision arbitraire
du mandant" (art. 7.1) et enfin, qu’il soit tenu à un quota minimum (art.
8.10) . . . Fondamentalement, il n’aurait pas accepté de s’en tenir à suivre strictement
les instructions reçues de son mandant et de considérer les clients prospectés comme étant
ceux du mandant. Il n ’aurait pas davantage respecté son obligation d’informer son man¬
dant sur la solvabilité des clients. Ce faisant, il violait les dispositions de l’article 5.9 du
contrat qui lui imposait un compte-rendu mensuel ».
N’étant pas lié par la qualification du contrat par les parties, l’arbitre s’est attaché à
rechercher la réelle et commune intention des intéressées. II a ainsi analysé le contrat en
cause et son exécution par les parties pour déclarer qu’elles étaient bien liées par un contrat
d’agence commerciale. Cette qualification lui permet ensuite d’affirmer sa compétence
dans la mesure où les différends liés à un contrat d’agence commerciale sont arbitrables
«(...) une qualification précise du statut du [demandeur] est essentielle car elle
a des conséquences directes sur notre compétence; qu’en effet, si [le demandeur]
devait être considéré comme un voyageur de commerce, le litige qui l’oppose à la
société Y. devrait être soumis au conseil de pntd ’hommes français compétent.
Attendu en effet, que dans la mesure où il n’y a pas de convention franco-
hongroise en matière de compétence juridictionnelle, la compétence des tribunaux
français résulterait tant de l'article du code civil français (“l’étranger, même non
résident en France pourra être cité devant les tribunaux français, pour l exécution
des obligations par lui contractées en France avec un Français (...)’’), que
l’article R. 517-1 du Code du travail français (“( ...) le salarié peut toujours
saisir le conseil de prud'hommes du lieu où l’engagement a été signé (...). Toute
clause qui directement ou indirectement déroge aux dispositions qui précèdent est
réputée non écrite”); que pour sa part la Cour de Cassation française a clairement
précisé que "la clause compromissoire insérée dans un contrat de travail
international n’est pas opposable au salarié qui a saisi régulièrement la juridiction
française compétente en vertu des règles applicables, peu importe la loi régissant
le contrat de travail" (arrêt n° 4033 du 9 octobre 2001, Lamy, Cass. Vol. IV (2001-
2003); que par ailleurs la convention de Rome du 19 juin 1980 sur la loi applicable
aux obligations contractuelles entré en vigueur le 1er avril ¡991 et qui s’applique
sans condition de réciprocité (art. 2) dispose en son article 6 que s’agissant d’un
contrat individuel de travail "(...) le contrat est régi: a) par la loi du pays où le
travailleur, en exécution du contrat, accomplit habituellement son travail ...”
Attendu que l’article 418 a) du Code suisse des obligations applicables en
l’espèce définit l’agent commercial comme suit: “l’agent est celui qui prend à
titre permanent l’engagement de négocier la conclusion d’affaires pour un ou
plusieurs mandants ou d’en conclure en leur nom et pour leur compte, sans être
lié envers eux par un contrat de travail"
Attendu que l’article 347 du même Code des obligations précise que “par le
contrat d’engagement des voyageurs de commerce, le voyageur de commerce
s'oblige, contre paiement d’un salaire, à négocier et à conclure, pour le compte

•v~-r :— ■v.i-2
«
d'un commerçant, d'un industriel ou d’un autre chef d'entreprise (.. .) des
affaires de n'importe quelle nature hors de l'établissement ( . . . )”
Attendu qu 'il ressort clairement des définitions précitées du Code suisse des
obligations que ce qui caractérise le statut de voyageur de commerce est l'exis¬
tence d'un lien de subordination entre ce dernier et son employeur tandis que
l’agent exerce sa profession à titre indépendant ( ... )
Attendu que l’examen du contrat du [date] 1998 ne permet pas de conclure à
l'existence d'un lien de subordination du [demandeur] à l’égard de la société Y.;
qu 'en effet, le [demandeur] avait toute liberté dans la création de sa structure
juridique et dans l 'organisation de son travail; qu'en outre, il choisissait seul ses
méthodes de travail ainsi que ses collaborateurs (ÿÿÿ); que par ailleurs, [le
demandeur] pouvait refuser la distribution de nouveaux produits de la société
Y. (...) et il était libre de développer ou non des campagnes de publicité et de
sr positionnement sur le marché ( .. . ) qu 'en contrepartie de cette liberté laissée au
s [demandeur], celui-ci devait supporter seul les frais occasionnés par son activité
( ... fence compris lorsqu 'il s'agissait d'obtenir des informations commerciales
au profit de la société Y. (...) le fait que [le demandeur] se voyait imposer des
obligations d’informations à l'égard de la société Y. ( ... ), que certaines tâches
comme le transport et la facturation ( . . .) étaient directement prises en charge
par la société Y. et que certains quotas devaient être réalisés ne portent pas atteinte
■
au constat que [le demandeur] n 'était pas dans une relation de subordination
( . . . ) qu'il est constant selon le droit suisse des obligations que l 'agent est pré¬
sumé n 'avoir que le droit de négocier et non de conclure des contrats ni d’accepter
des paiements ( ... ) que le contrat du [date] y est conforme puisque [le deman¬
deur] ne pouvait pas conclure des contrats mais simplement les négocier ( ... )et
qu'il n 'était chargé ni de la facturation ni de l 'encaissement (... ) que la circon¬
stance que lle demandeur] devait se situer dans le cadre de la politique commer¬
ciale définie par la société Y. après consultation du [demandeur] n 'entame pas
davantage sa qualité d’agent; qu’en effet, si tant l'agent commercial que le voya¬
geur de commerce doivent situer leur action dans le cadre de la politique com¬
merciale définie selon le cas par son mandant ou par son employeur, il n’en
demeure pas moins que dans le premier cas l’agent adapte son action à cette
politique selon ses propres convenances et moyens . . . qu’il y a lieu de conclure
que le contrat [date] entre [le demandeur] et la société Y. est un contrat d’agence et
que nous sommes dès lors compétents pour connaître du litige né suite à la rupture
de ce contrat (...)».
L’arbitre a examiné ensuite le fond du litige pour constater que le contrat n’a pas été
valablement rompu par le défendeur en l’absence de fautes imputables au demandeur. Il fait
droit à la plupart de ses demandes (dont le paiement de commissions, arriérés, indemnités
compensatrice de la clause de non-concurrence et de préavis), à l’exception de l’indemnité
de clientèle pour des raisons d’équité.
«Attendu que l’article 418 u 1, 2 et 3 du Code suisse des obligations dispose que:
'‘1 Lorsque l 'agent, par son activité, a augmenté sensiblement le nombre de clients
du mandant et que ce dernier ou son ayant cause tire un profit effectif de ses
relations d’affaires avec ces clients même après la fin du contrat, l’agent ou ses
héritiers ont droit, à moins que ce ne soit inéquitable, à une indemnité convenable,
qui ne peut pas leur être supprimée par convention;
2 Cette indemnité ne peut cependant pas dépasser le gain annuel net résultant
du contrat et calculé d’après la moyenne des cinq dernières années ou d‘après celle
de la durée entière du contrat si celui-ci a duré moins longtemps;
3 Aucune indemnité n’est due lorsque le contrat a été résilié pour un motif
imputable à l'agent.

Attendu qu’il n’y a pas lieu à application de l'article 418 u3du Code suisse des
obligations dans la mesure où, comme il a été démontré ci-avant, le [demandeur] a
correctement exécuté les obligations découlant du contrat le liant à la société Z;
que les reproches formulés à cet égard par cette dernière, s’avèrent non fondés;
Attendu que selon le Tribunal fédéral le terme "indemnité" dont il est question à
l’article 418 u du Code des obligations est impropre; qu’en effet "il ne s 'agit pas
d’indemniser l'agent c’est-à-dire de réparer un préjudice subi par lui mais de lui
fournir une contre-prestation pour le profit que le mandant réalise, même après la
fin du contrat d’agence, du fait que le nombre de ses clients a augmenté grâce à
l'activité de l'agent. C’est pourquoi le droit à l'indemnité existe seulement si, de
par son activité, l’agent a augmenté sensiblement le nombre des clients du mandant
et que si ce dernier tire un profit effectif de ses relations d’affaires avec ces
nouveaux même après la fin du contrats" ( . .. )
Attendu que les conditions d'application de l'article 418 u du Code suisse des
obligations sont l’augmentation sensible du nombre de clients, que cette augmen¬
tation sensible provienne de l’activité de l’agent que le mandant en tire un profit
après la fin du contrat;
Attendu qu’à supposer que ces conditions soient remplies, il faut encore que
l 'indemnité n 'apparaisse pas comme inéquitable; que selon la jurisprudence et la
doctrine, ce serait le cas dans les circonstances suivantes: la rémunération de
l'agent a été supérieure à la moyenne des commissions stipulées pour d’autres
agents de la même branche; l’agent a bénéficié d’une situation de quasi monopole
du mandant pour les produits ou les services offerts; l 'agent bénéficie d 'avantages
sociaux ( ... )
Attendu que selon le contrat du [date] 1978, le [demandeur] bénéficie de
l’exclusivité de la représentation du mandant, qu’en conséquence le mandant
n 'aura pas d’autres représentants que l’agent (M. X.), sur ce secteur; il ne vendra
pas les produits mentionnés dans l’article 1 ni directement, ni indirectement, sans
passer par l 'intermédiaire de l 'agent et éloigne toute sorte de concurrence dans le
secteur indiqué ( ... ) que suite de cette exclusivité, [le demandeur] touche une
commission sur toute vente effectuée dans son secteur, même s 'il n 'en est pas à
l'origine ainsi que sur toute livraison effectuée dans son secteur quand bien même
elle est la résultante d'une commande passée dans un autre secteur ( ... ) que ces
différents éléments démontrent à suffisance que la situation du [demandeur] dans
son secteur est monopolistique en ce qui concerne les produits fournis par la
société Y. (...) s’il est incontestable que le [demandeur] a sensiblement aug¬
menté le nombre de clients pour les produits de la société Y. et a généré de la sorte
au profit de cette dernière un chiffre d’affaires important, il n'en demeure pas
moins que sa tâche a été facilitée par l'exclusivité dont il bénéficiait contractuelle¬
ment et qui Ta aidé dans l’écoulement des produits (...) il serait dès lors inéq¬
uitable au sens de l’article 418 U du Code suisse des obligations d’attribuer au
[demandeur] une indemnisation de cessation du contrat d’agence (...)».
L’arbitre condamne ensuite le défendeur à supporter les deux tiers des frais de l’arbitrage
conformément à l’article 31 du Règlement CCI, y compris les « deux tiers des frais de
conseil et de représentation que le [demandeur] a exposés; que ces frais devront être
remboursés sur présentation par le [demandeur] de la note d'honoraires de ses conseils;
qu 'au total le montant à rembourser ne peut toutefois excéder 50 000 € ».
NOTE. — — I. L’agent commercial tout comme le voyageur de commerce exercent
une fonction économique similaire, à savoir qu’ils doivent solliciter des commandes pour
le compte d’autrui. Leur situation juridique diffère toutefois fondamentalement car le
voyageur de commerce est soumis à un lien de subordination vis-à-vis de son employeur
contrairement à l’agent commercial qui est un mandataire indépendant (V. notamment P.

*j
ís

Engel, Contrats de droit suisse, 2e éd.: Staempfli Editions SA Berne 2000, p. 408 et 540.
Th. Steinmann, Ph. Kenel et I. Billotte, Le contrat d'agence commerciale en Europe:
Bruylant, LGDJ, Schulthess 2005, p. 54).
—
La qualification du contrat faite par l’arbitre par référence au droit suisse applicable au
fond est essentielle car elle détermine la compétence du tribunal arbitral. Ayant retenu qu’il
s’agissait bien d’un contrat d’agence commerciale (article 418 du Code suisse des obliga¬
tions ou « CO ») qui était visé dans l’espèce commentée, l’arbitre a pu poursuivre normale¬
ment sa mission en raison de la validité de la clause compromissoire, les litiges fondés sur
les contrats d’agence commerciale étant tout à fait arbitrables.
Il en aurait été différemment si l'arbitre avait retenu l’existence d’un contrat de travail en
raison de la nationalité française du demandeur. En effet, tout différend entre un salarié
français et son employeur est soumis en principe à la compétence du Conseil des prud’¬
t: hommes français compétent. Or, dans le cadre d’un contrat de travail international où les
■: parties ont prévu une clause compromissoire pour le règlement de leur différend, la
question se pose alors de savoir quelle est la loi applicable à la validité de la convention
d’arbitrage. S’agit-il de la loi du contrat, soit la loi suisse ou la loi du juge, soit la loi
française?
La question mérite d’être posée même si l’arbitre n’a pas eu besoin de le faire en raison
de la qualification du contrat qu’il a retenue. En considération du droit français et de la
jurisprudence française, on peut penser que c’est plutôt la loi du juge qui devrait être
normalement appliquée à la question posée. L’arbitre apporte une réponse indirecte en
citant Fanât de la Cour de cassation française du 9 octobre 2001 qui indique que « la clause
compromissoire insérée dans un contrat de travail international n’est pas opposable au
salarié qui a saisi régulièrement la juridiction française compétente en vertu des règles
applicables, peu importe la loi régissant le contrat de travail » (V. Cass, soc., 9 oct. 2001:
Rev. arb. 2002, n° 2, p. 347, note Th. Clay. V. également Cass, soc., 16 févr. 1990: Rev.
-
—
arb. 1999, «° 2,p. 47, note M.-A. Moreau. R.Dupeyré, L’arbitrage endroit du travail sur
www.bopslaw.com). De ce qui précède, on peut en déduire que le salarié disposerait en
réalité d’une option. Si la clause compromissoire lui est inopposable dans le principe, rien
ne lui interdit semble-t-il d’y renoncer postérieurement en engageant une procédure
d’arbitrage. À supposer que l’arbitre ait retenu l’existence d’un contrat de travail dans
le cas d’espèce commenté, on peut s’interroger si le demandeur n’aurait pas renoncé à la
protection du droit français en introduisant une demande d’arbitrage devant la Cour inter¬
nationale d’arbitrage de la CCI. La compétence de la juridiction prud’hommale n’apparaît
donc pas aussi impérative en droit international qu’en droit interne (V. notamment J.-L.
Delvolvé, G. Pointon et J. Ronche, French Arbitration Law and Practice A Dynamic —
Civil Law Approach to International Arbitration, 2nd ed.: Kluwer, 2009, § 81, p. 48. E.
Courtois-Champenois, L 'arbitrage des litiges en droit du travail: à la redécouverte d’une
—
institution française en disgrâce — Etude comparative des droit français et américain:
—
Rev. arb. 2003, n° 2, p. 349. G. Aubert, L 'arbitrage en droit du travail:, ASA Bull. 2000,
vol. 18, «° 1, p. 2).
II. — En application du droit suisse, rappelons que l’indemnité de clientèle vise, non
pas à réparer un préjudice subi par l’agent du fait de la cessation du contrat, mais plutôt à
compenser la valeur commerciale de la clientèle développée par l’agent qui a agi au nom et
pour le compte du commettant. De ce fait, elle est soumise à trois conditions précises
définies par l’article 418 u (1) CO lesquelles sont appréciées in concreto:
— l’augmentation de la clientèle doit être sensible;
— l’augmentation de la clientèle est due à l’activité de l’agent;
— le commettant en retire un profit certain, à savoir que la clientèle développée par
l’agent lui reste attachée à la fin du contrat.

L’octroi de cette indemnité n’est pas cependant automatique car elle doit être « équitable »:
l’indemnité est normalement accordée si l’agent a consenti à d’importants investissements
pour augmenter la clientèle et se voit privé des profits de son travail au bénéfice du commet¬
tant à la fin du contrat. Par contre, elle peut lui être refusée si l’agent a bénéficié par exemple
de commissions élevées pendant la durée du contrat ou d’une situation de quasi-monopole (V.
P. Engel, Contrats de droit suisse, op. cit. p. 551 à 554. — Th. Steinmann, Ph. Kenel et
I. Billotte, Le contrat d'agence commerciale en Europe, op. dt. p. 608 à 611).
Telle a été la situation en l’espèce. L’arbitre a pu relever notamment que le demandeur a
bénéficié d’une exclusivité territoriale quasi monopolistique, qu’il touchait des commis¬
sions pour des ventes effectuées sur son territoire alors même qu’il n’en a pas été à
l’origine. Ce faisceau d’indices a permis à l’arbitre de constater que le développement
de la clientèle par l’agent a été largement facilitée dans ces circonstances et qu’il serait
inéquitable au sens de l’article 418 u (1) CO de lui attribuer l’indemnité de clientèle
sollicitée.
On peut souligner que l’approche en droit suisse, qui est inspirée du droit allemand, est
différente de celle adoptée dans d’autres droits, tel que le droit français. Le législateur
français a en effet opté pour une politique plus protectrice de l’agent en permettant le
versement d’une indemnité compensatrice fondée sur le préjudice subi par l’agent à
l’occasion de la cessation du contrat. Ce choix était possible en raison de l’option qui a
été laissée par la directive européenne du 18 décembre 1986 sur 1’ agence commerciale, aux
États membres.
Le calcul de l’indemnité dépend donc du préjudice subi par l’agent qui peut être plus ou
moins important. Le calcul est moins précis qu’en droit suisse où l’indemnité de clientèle,
si elle est accordée à l’agent, est calculée « d’après la moyenne des cinq dernières années ou
d’après celle de la durée entière du contrat si celui-ci a duré moins longtemps » (art. 418 u
(2) O) (V. à titre de comparaison la sentence arbitrale CCI n° 12749 (2005): JDI 2009,
p. XXX, note S. J. C. et C. T.-N., supra. — J.Burda, Agent commercial et distributeur
exclusif: où doit s’arrêter l'analogie? Retour sur une évolution récente du droit suisse
en matière de contrat de concession de vente exclusive RDAI/IBLJ 2009, n° 4, p. 455).
IIL— En application des dispositions de l’article 31 du Règlement CCI qui lui confère
un large pouvoir d’appréciation quant à la répartition des fiais de l’arbitrage entre les
parties, l’arbitre a condamné le demandeur et le défendeur à supporter respectivement
un tiers et deux tiers de ces frais. L’arbitre a tenu compte de l’origine du litige qui est
liée au refus injustifié du défendeur d’assumer les conséquences financières de sa décision
de rompre le contrat mais aussi du fait que toutes les prétentions du demandeur n’étaient
pas fondées. La solution retenue, qui est liée à l’issue du litige, s’inscrit dans une tendance
constatée dans la pratique arbitrale (pour un développement plus détaillé sur le coût de
l’arbitrage CCI et de sa répartition, V. notamment sentence arbitrale CCI n° 12167 (2002)
et la doctrine citée: JDI 2007, p. 1270, note S. J. et C. T.-N.).
S’agissant des frais de conseils et de représentation, l’arbitre a procédé de la même façon
en condamnant le défendeur à supporter ses propres frais et les deux tiers des frais de
conseil et de représentation exposés par le demandeur. Comme indiqué dans la sentence,
ces frais devront être remboursés par le défendeur « sur présentation par le [demandeur] de
la note d'honoraires de ses conseils; qu 'au total le montant à rembourser ne peut toutefois
excéder 50 000 €».
Cette décision n’appelle pas d’observations particulières car elle relève du pouvoir
d’appréciation de l’arbitre. On peut toutefois se demander si les parties ont été invitées
par l’arbitre à soumettre le détail de leurs frais de représentation. Aucun chiffre n’a été
mentionné dans la sentence à l’exception du montant maximal de 50 000 €qui a été fixé
forfaitairement semble-t-il par l’arbitre. On peut le regretter car la connaissance exacte des
frais engagés par les parties auraient permis de mieux comprendre le raisonnement suivi

— -zi V-"
---
rl?ÿ" CÿíJí.; l.:J

par l’arbitre pour arriver au chiffre de 50 000 €, et les critères qu’il a adoptés pour retenir ou
rejeter les montants indiqués par les parties.
En l’absence de recommandations particulières dans le Règlement d’arbitrage CCI, on
peut indiquer que les solutions adoptées dans la pratique arbitrale traduisent l’expérience et
la culture juridique propre à chaque arbitre, mais surtout la liberté discrétionnaire que
l’article 31 du Règlement CCI accorde aux arbitres (V. notamment M. Bühler et Th.
Webster, Handbook of ICC Arbitration, 2nd ed.: Thomson/Sweet dc Maxwell, 2008,
— —
§31-11, p. 443. P. Patocchi, Deciding on costs how to determine the arbitrators’
remuneration, how the parties 'legal costs, awarding costs ex officio? in ASA Special Series
—
n° 29, September 2007, p. 49. R. Kreindler, Final Ruling on Costs: Loser Pays All? in
ASA Special Series n°26, July 2006, p. 41).
Certains praticiens y sont tout à fait sensibles mais d’autres émettent ou renouvellent
:ÿ
déjà le vœu que la pratique arbitrale soit plus cohérente, plus homogène sur la question de
l’allocation des coûts de l’arbitrage.
Comme expliqué par M. Yang, à Hong Kong comme en Angleterre, l’allocation des
coûts est déterminée par l’issue du litige (« costs follow the event »). U s’agit d’une
disposition d’ordre public à laquelle les parties ne peuvent pas déroger conformément
aux dispositions de la section 2GJ(3) de l’Ordonnance sur l’Arbitrage de Hong Kong
((Cap. 341) (« Une disposition dans la clause compromissoire tendant à faire payer les
parties ou l’une d’entre elles leurs frais liés à la procédure d’arbitrage est nulle (.,.)»)
(traduction libre des auteurs). Cette règle s’impose aux arbitres siégeant à Hong Kong ou à
Londres dans le cadre d’un arbitrage CCI. L’auteur relève néanmoins que la règle précitée
n’est pas d’application universelle. Tel est le cas à New York ou à Manille où l’approche
peut être différente (V. Ph. Yang, Costs in International Administered Arbitration: Asian
Dispute Review, July 2009, p. 87. — V. également R. Kreindler, op. cit. p. 42).
La question mérite d’être posée et l’occasion est donnée à la CCI d’y répondre dans le
cadre la révision du Règlement d’arbitrage de 1998 qui est actuellement en cours. Il est
peut-être permis d’envisager par exemple que le tribunal arbitral puisse aborder la question
de la règle applicable à l’allocation du coût de l’arbitrage avec les parties à l’occasion de la
rédaction de l’acte de mission.
S. J.
C. T.-N.
d’agence commerciale (qualification)
—
—
Chambre de commerce international
Rupture du contrat (indemnisation)
—
Contrat

Sentence arbitrale finale rendue dans l’affaire CCI n° 13438 en 2005 (original
en langue française)
Procédure. — Calendrier procédural. — Retard dans la production d’un

mémoire. — Admission.
Contrat. — Cession d’actions. — Garantie d’actifs et de passifs. —
Désignation d’un expert (non).
Contrat. — Cession d’actions. — Garantie de passif. — Nature de
l’arbitrage.
Contrat. — Cession d’actions. — Garantie de passif. — Parties à l’arbitrage.
— Compensation.
Un tribunal arbitral siégeant à Paris et appliquant le droit français se prononce sur une
garantie de passif et ordonne la compensation entre les créances de l 'acheteur, d 'une part,
et celles du vendeur contre l'acheteur et la société cédée, d'autre part.
Le présent litige porte sur la mise en œuvre d’un contrat de cession, par une société
française [X] à une société anglaise [Y] de la totalité des titres et droits de vote d’une
société [Z]. Le contrat avait été conclu en présence de [Z]. Le vendeur [X] ayant demandé à
[Y] le paiement du solde du prix et à [Z] le remboursement de son compte courant, [Y] a fait
valoir que les déclarations et garanties qui lui avaient été données s’étaient révélées inex¬
actes et trompeuses et que des sommes lui étaient dues au titre de la garantie de passif.
[Y] a alors engagé une procédure arbitrale, conformément à la clause compromissoire
figurant au contrat de cession et a demandé le paiement d’une indemnité et sa compensation
avec les sommes, d’un montant inférieur, qu’elle reconnaissait devoir à [X] ou être dues à
[X] par [Z],
[X] demandait le rejet de ces demandes ainsi que le paiement par [Y] du solde du prix et
le remboursement de ses créances par [Z] qui participait également à la procédure dans des
conditions qui ne sont pas explicitées dans la sentence mais qui était signataire de l’acte de
mission.
Le Tribunal règle en premier lieu une difficulté de procédure et rejette la demande par
[Y] et [Z] que soit écarté le Mémoire en duplique de [X], produit avec deux jours de retard
par rapport au calendrier procédural. H justifie sa décision dans les termes suivants:
« Mais attendu, d'une part, que la formule consacrée par le Tribunal arbitral dans
le calendrier, avec l 'accord des parties, selon laquelle le ( . . . )est« la date de la
clôture de la procédure écrite », vise à empêcher le dépôt d’autres mémoires ou
notes, après le mémoire en duplique, ce qui prolongerait indéfiniment le débat.
Attendu que le refus de prendre en compte le mémoire en duplique du défendeur
déséquilibrerait gravement la procédure aux dépens de celui-ci, puisque les
demandeurs auraient présenté un mémoire en demande et un mémoire en réplique
alors que [X] n'aurait pu adresser qu'un seul mémoire sans pouvoir répondre
valablement au mémoire en réplique de ses adversaires.
Attendu, d’autre part, que le retard de quarante-huit heures que les demandeurs
reprochent à [X] d’avoir apporté dans la remise de son mémoire en duplique ne
leur a pas porté préjudice puisque ce document est le dernier prévu par la procé¬
dure et que les demandeurs ne pouvaient pas y répondre par écrit.
Attendu qu ’[Y] et [Z] n 'ont pas soutenu que le retard invoqué ne les mettaient
pas en mesure de préparer l 'audience des plaidoiries et qu'ils n’ont pas demandé le
report de sa date ».

Le Tribunal examine ensuite chacun des chefs de demande de [Y] au titre de la garantie
de passif.
[Y] invoquait en premier lieu une clause dite « d'absence de changement défavorable
significatif» dans la situation de [Z] et de ses filiales et soutenait qu’une chute brutale de la
— —
rentabilité de cette dernière telle que définie par le contrat de cession entrait dans
cette catégorie. Elle ajoutait que la lettre d’intention signée par les parties stipulait que le
prix de cession avait été déterminé en tenant compte de la rentabilité de l’entreprise et des
prévisions des parties pour l’année suivante.
Cette première demande est rejetée au motif qu’une clause du contrat prévoyait une
réduction forfaitaire du prix au cas où le résultat de [Z] serait inférieur à un certain montant:
« Attendu qu‘il résulte clairement de ce texte que les parties ont prévu et réglé par
une disposition spécifique le cas oit [le résultat] serait inférieur à la somme de
.
( . . ). Que les parties ont dans ce cas décidé que le prix de cession des actions
serait alors révisé à la baisse.
Que le montant de la somme devant être déduite du prix primitivement fixé a été
.
crédit vendeur d’une valeur nominale de (
—
déterminé d 'un commun accord à ( . . ). Que cette somme a été déduite par [X] du
) accordée à [Y] à la date du( ... ).
Attendu que [Y] se réfère, pour justifier sa prétention du versement d’une somme
très supérieure à celle forfaitaire fixée, à l'article (. du Contrat qui garantit à
l'acheteur qu’« aucun élément n 'est intervenu qui pourrait avoir un changement
défavorable comme conséquence ».
Que le demandeur rappelle que le Contrat dans ses « définitions » précise que
« Changement défavorable signifie tout fait, événement, circonstance ou série de
faits, évènements ou circonstances quelle qu 'en soit la nature, cause ou origine
(y compris toute procédure judiciaire, arbitrale ou administrative intentée à l 'encon¬
tre d’une société garantie) affectant ou susceptible d’affecter de façon significative et
défavorable le patrimoine, la situation économique et financière, le chiffre d 'affaires
ouïes résultats, la rentabilité, les perspectives ou l 'activité d 'une société garantie, ou
l 'aptitude d 'une société garantie à satisfaire ses obligations au titre du contrat ou ses
garanties financières de réduire la valeur des actions ».
Mais attendu que ce texte de portée générale, s'il prend en compte tous les
évènements, circonstances, faits, quelle qu'en soit la nature, comme l 'origine, et
s'il peut servir de fondement à des demandes présentées par [Y], est sans portée
s'agissant de l'évolution [du résultat] que les parties ont entendu régler de façon
spécifique.
Attendu enfin que ne peut être retenue l 'argumentation des demandeurs, fondée
sur la lettre d 'intention et les courriels, par lesquels [X] se serait engagée en ce qui
concerne les prévisions [du résultat],
Attendu en effet que ce raisonnement, outre qu’il ne tient pas compte de la
solution consacrée par l’article (...) du Contrat [relatif à la baisse du résultat],
n 'est pas valable aussi au regard de l 'article (...) de ce texte.
Attendu en effet que l'article ( ... ) énonce: «Le présent Contrat et toutes ses
annexes et appendix représentent le seul et unique contrat entre les Parties rela¬
tivement à l’objet du présent contrat, remplacent et prévalent sur sous les projets,
négociations, contrats, accords et déclarations antérieurs écrits ou non et relatifs à
l 'objet des présentes. Aucun projet antérieur au présent contrat (et/ou d’une de ses
annexes ou appendix) ne pourra être utilisé afin de démontrer l'intention des
Parties dans le cadre du présent contrat ou ne pourra servir de preuve dans le
cadre d’une procédure ou d’une action juridique concernant le présent contrat » ».
Le Tribunal fait ensuite droit à une demande de [Y] au titre de l’arrêt ou de la chute du
volume de commandes de certains clients, fondée sur l’engagement contractuel par [X]
qu’aucun client des sociétés garanties représentant plus de 5 % de leurs ventes annuelles

■ I .
- ....
»: I-lüf.l

n’était « au mieux de la connaissance des Vendeurs ( ... ) susceptible de mettre fin à ou de
réduire ses relations commerciales avec les Sociétés Garanties ». Il constate:
« Attendu que le Tribunal relève que l 'activité du groupe [Z] est fondée sur des
contrats non récurrents auprès de ses clients et que par voie de conséquence s 'il est
exact que les prévisions budgétaires présentent nécessairement un degré d’incer¬
titude élevé en début d 'année, il est fortemen t probable que sur la fin de l 'année des
contacts précis avec les clients permettent d’avoir une meilleure visibilité, ce
d'autant plus que le nombre de clients importants est restreint.
(...)
Mais attendu que les pièces versées au dossier ne permettent pas de démontrer
que [X] était dans l‘incapacité d'anticiper une baisse de chiffre d'affaires avec les
clients concernés sur l'exercice 2003.
Attendu qu 'au cours des négociations il était convenu entre les parties qu’aucun
élément budgétaire ou prévisionnel permettant d'appréhender les chiffres
d’affaires par client n’a été communiqué à l'acquéreur potentiel et que l’identité
des clients devait être tenue confidentielle dans l’hypothèse où les négociations
n’aboutiraient pas afin de préserver les intérêts commerciaux de [Z],
Mais attendu qu 'en vertu de l’article ( ... ) [X] avait l’obligation d’informer
[Y] sur tout risque potentiel de baisse de chiffre d’affaires avec les clients repré¬
sentant plus de 5 % du chiffre d 'affaires des sociétés garanties.
Attendu que le Tribunal arbitral estime qu’il est difficile de croire que des
prévisions de chiffre d’affaires ne soient pas élaborées par client et que [X] ne
disposait pas des orientations prévisibles en terme de chiffre d’affaires pour
l’année à venir au moment de la cession ».
Le Tribunal accueille donc la demande de [Y] portant sur la perte de marge supportée
pour l’exercice suivant la cession, mais la rejette pour l’exercice ultérieur, au motif que les
« les éléments de prévisions n’étant pas disponibles à la date de réalisation, il ne peut être
reproché en conséquence à [X] de ne pas avoir apporté des précisions sur ce point ».
De même, le tribunal accueille favorablement une partie des demandes de [Y] au titre de
créances irrécouvrables, au titre de l’entretien et de la réparation de certains actifs dont
l’état n’était pas conforme aux garanties données par [X] et au titre du niveau des stocks. Le
reste des demandes est rejeté, soit parce que la preuve factuelle y afférente n’est pas
rapportée, soit parce qu’elle n’entre pas dans le cadre de la garantie donnée par [X],
soit parce que [Y] ne les ayant pas reprises dans ses dernières écritures, est réputée y
avoir renoncé.
De manière plus générale, [Y] soutenait qu’elle avait été victime non seulement de
déclarations inexactes mais encore que ces déclarations avaient été faites de mauvaise foi
et que le comportement de [X] relevait de la réticence dolosive, cette dernière l’ayant
délibérément trompée sur les perspectives de revenus de [Z] et sur les risques de perte de
certains clients. Elle demandait donc que la limitation de la responsabilité de [X] soit écartée,
conformément aux stipulations contractuelles relatives à la mauvaise foi du vendeur. Cette
demande est rejetée dans les termes suivants:
« Mais attendu que s"agissant [du revenu], le Tribunal arbitral a jugé que la
question d’un [revenu] inférieur à (...) a été réglée d’une manière spécifique
par les parties à l’article ( ... ) prévoyant alors la réduction du prix d’une somme
de (...).
Attendu qu’il n’appartient pas à [Y], pour tourner cette solution du plafonne¬
ment de la somme due, d’invoquer la mauvaise foi de [X], en se référant au surplus
à des documents et courriels dont l’article (...) ne permet pas de tenir compte.
Attendu aussi, à titre subsidiaire, comme le fait justement remarquer [X], que si
Ton prend connaissance des documents qui ne peuvent être pris en compte dans la
présente procédure, on relève que les documents et courriels visés ne concernent
pas la garantie prise par [X] mais seulement des prévisions qu ’[Y] ne pouvait
Reprinted from the Outlet 791

ignorer en particulier par référence au rapport de ( ... ) selon lequel [le revenu]
serait en baisse.
Attendu encore que la proposition faite par [X] de reporter de plusieurs mois la
date de la signature du Contrat de cession, pour qu '[Y] soit plus à même d’appré¬
cier l’évolution des résultats de [Z], laquelle n'a pas été acceptée, ne va pas dans le
sens de l’argumentation ¿/’[Y].
Attendu qu‘[ Y] soutient subsidiairement que le comportement de [X] a été
dolosif.
Attendu que le dol défini par l'article 1116 du Code civil, comme « les man¬
œuvres pratiquées par l'autre partie ( ... ) telles, qu’il est évident, que sans ces
manœuvres, l'autre partie n’aurait pas contractée ».
Attendu que ces agissements malhonnêtes et ces réticences graves d’informa¬
tions selon les précisions apportées par la jurisprudence relèvent de la mauvaise
foi que les parties ont entendu viser dans le contrat de cession et dont le Tribunal
arbitral a apprécié en considération qu 'elle n 'était pas caractérisée.
Attendu que le dol, comme la mauvaise foi, ne peut être invoqué en l’espèce.
Attendu que, s'agissant du reproche fait par [Y] à [X] de ne l'avoir pas informé que
certains clients importants n’avaient pas ou n’allaient pas maintenir leurs com¬
mandes, si le Tribunal arbitral a bien retenu que certaines critiques étaient fondées,
comme établi ci-dessus, il ne considère pas que celles-ci caractérisent la mauvaise
foi de [X] ou des manœuvres utilisées par cette société pour tromper (Y] ».
Finalement, le Tribunal rejette la demande de [Y] que « dans l'hypothèse où le Tribunal
ne s’estimerait pas suffisamment éclairé pour prononcer sa sentence, il y aurait lieu de voir
désigner un expert ». Il explique que « en raison de sa composition, [il] a considéré qu‘il
était en mesure de trancher tous les problèmes qui lui étaient soumis par les parties ».
Après avoir tranché les demandes de [Y], le tribunal analyse les demandes reconven¬
tionnelles de [X]. Celle-ci faisait valoir qu’une somme encaissée par [Z], sur décision d’une
cour d’appel, au titre d’un litige antérieur à la cession, devait être prise en compte à son
bénéfice. [Y] s’y opposait en faisant valoir que la demande n’avait pas de base contractuelle
et qu’un pourvoi avait été formé contre la décision d’appel en sa faveur. Le Tribunal,
retenant ce dernier argument, rejette la demande. [X] présentait également une demande
de dommages-intérêts, au motif que [Y] aurait indûment retardé le paiement des sommes
qui lui étaient dues, au moyen de demandes qui « par leur importance, leur exagération,
leur fondement, [relevaient] de l'intimidation et de la volonté de nuire ». Elle n’aurait pu de
ce fait mener à bien les projets qu’elle se proposait d’entreprendre, ce dont aurait résulté
une perte de crédibilité vis-à-vis de ses banquiers. La demande est rejetée au motif que la
demande de [Y] étant justifiée sur certains chefs, il ne pourrait lui être reproché d’avoir agi
de mauvaise foi.
Le Tribunal prononce, à la demande de [Y], la compensation des sommes qu ’elle, ou que
[Z], doit à [X] avec celles que cette dernière doit à [Y] et la condamne à payer à [X] le solde,
les intérêts dus sur les dettes vis-à-vis de [X] continuant à courir jusqu’au parfait paiement.
Il observe à cet égard que [Y] agit pour son compte et celui de [Z] et que la compensation
est prévue par le contrat de cession. Finalement, sur demande de [X], il constate que « la
sentence à intervenir sera rendue en dernier ressort et sans appel possible » invoquant au
motif de cette constatation l’article 28.6 du Règlement.
Le Tribunal laisse à la charge des parties les honoraires et frais de conseil et partage entre
elles par moitié les frais d’arbitrage.
NOTE. — I. Aux termes de son article 15, la procédure arbitrale est régie par le
Règlement et « dans le silence de ce dernier, par les règles que les parties, ou à défaut
le tribunal arbitral, déterminent, en se référant ou non à une loi nationale de procédure
applicable à l’arbitrage. Dans tous les cas, le tribunal arbitral conduit la procédure de

manière équitable et impartiale et veille à ce que chaque partie ait eu la possibilité d’être
suffisamment entendue ».
En l’espèce, la clause compromissoire stipulait que les arbitres appliqueraient la loi
française pour les règles de procédure ainsi que pour apprécier le fond du litige. L’acte
de mission ne reprenait pas cette précision, stipulant seulement, sous le titre « Procédure
arbitrale » que le litige serait « tranché conformément aux règles française pour le fond ».
On pouvait donc se demander si cette application avait pour effet d’écarter l’application du
droit français à la procédure. La question était purement théorique, la loi française de
l’arbitrage donnant tout pouvoir à l’arbitre pour régler la procédure en l’absence de stip¬
ulation contraire. L’article 1494 du Code de procédure civile dispose ainsi que « dans le
silence de la convention, l’arbitre règle la procédure, autant qu 'il est besoin, soit directe¬
VJ
ment, soit par référence à une loi ou à un règlement d’arbitrage ».
Â? La seule limite qui s’impose à l’arbitre en dehors du respect du Règlement est le « respect
des principes essentiels à l’administration d’une bonne justice, c’est-à-dire le principe du
traitement égal des parties, du respect du contradictoire, et plus généralement des droits de
la défense et de l’ordre public international au sens procédural du terme » (Ph. Fouchard,
E. Gaillard et B. Goldman: Traité de l’arbitrage commercial international, éd. 1996,
«° 1204).
Or, le calendrier procédural est un document purement provisionnel ainsi que l’indi¬
quent clairement les termes de l’article 18.4 qui dispose que: «(...) le tribunal arbitral,
après consultation des parties, fixe dans un document séparé le calendrier prévisionnel
qu‘il entend suivre pour la conduite de la procédure et le communique à la cour et aux
parties. Toute modification ultérieure de ce calendrier sera communiquée à la Cour et aux
parties ». De plus, si l’article oblige l’arbitre à consulter les parties, rien ne l’oblige à
recueillir leur accord pour établir le calendrier prévisionnel et a fortiori le modifier (affaire
CCI n° 10422, obs. EJolivet.p. 1142, spèc. p. 1151).
Il est vrai que le calendrier procédural décrivait la date prévue pour la production du
mémoire comme étant la date de la clôture de la procédure écrite. Elle ne constituait pas
pour autant la date de « clôture des débats » prévue par l’article 22 du Règlement et après
laquelle « aucune écriture, aucun argument ni aucune preuve ne peuvent être présentés,
sauf à la demande ou avec l’autorisation du tribunal », ainsi que le montre la program¬
mation d’une audience postérieure.
Dans ces conditions, le Tribunal arbitral avait tout pouvoir pour se prononcer sur
l’admissibilité d’un Mémoire en duplique produit tardivement par la défenderesse et sa
décision de le déclarer admissible ne peut qu’être approuvée dès lors qu’il prend soin de
vérifier sa compatibilité avec le respect des droits de la défense, la demanderesse ne
pouvant et n’ayant invoqué aucun grief. Au contraire, c’est une déclaration d’inadmissi¬
bilité du Mémoire en duplique delà défenderesse lui interdisant de répondre au Mémoire en
réplique qui aurait entraîné un déséquilibre entre les parties.
—
II. Dans son article sur « Arbitrage et garanties de passif», le professeur Viandier
notait que les garanties de passif confrontaient les arbitres « à des difficultés inattendues,
—
les unes touchant à la nature de la procédure est-ce une expertise ou un arbitrage? les
autres tenant à la place de société cédée » (Rev. arb. 1994, p. 439, n°24). Ces deux
—
questions se retrouvent dans la sentence commentée.
Celle du rapport entre arbitrage et expertise se posait en deux sens différents. En premier
lieu, la demanderesse, consciente des difficultés techniques propre à la matière, avait
suggéré à l’arbitre de désigner un expert « dans l’hypothèse où le Tribunal arbitral ne
s 'estimerait pas suffisamment éclairé ». Le Tribunal arbitral, largement maître de la pro¬
cédure comme on l’a vu ci-dessus, a en effet tout pouvoir pour désigner un expert, ce que
confirme l’article 20 (4) du Règlement qui stipule que « le Tribunal arbitral peut, après

avoir consulté les parties, nommer un ou plusieurs experts, définir leur mission et recevoir
leurs rapports ». On a cependant noté que « avant de nommer un expert, un tribunal devrait
y penser deux fois, cette mesure étant souvent coûteuse et prolongeant ordinairement la
durée de l'arbitrage » (Y. Derains et E. A. Schwartz, A guide to the ICC Rules of
Arbitration, éd. 2005, p. 280). De surcroît, l’un des avantages de l’arbitrage souvent
mis en avant est la possibilité de pouvoir sélectionner des arbitres ayant une bonne con¬
naissance de la matière litigieuse, ce qui devrait limiter les cas de recours à l’expertise
technique (ibid. p. 278). En l’espèce, en effet, c’est « en raison de sa composition » —sur
laquelle la sentence ne donne pas plus d’éclaircissement
mesure de trancher tous les problèmes qui lui sont soumis.
— que le Tribunal s’estime en
—
III. En second lieu, la nature des questions posées au Tribunal arbitral impliquant une
appréciation des comptes sociaux et de la valeur des actions cédées le conduisent à une
réduction du prix de cession. Sa mission, dès lors, est-elle celle d’un arbitre ou celle d’un
expert au sens de l’article 1592 du Code civil? La question n’était pas posée aux arbitres
mais n’était-elle pas à l'origine de l’insistance du défendeur pour que le Tribunal confirme
que la sentence serait rendue en dernier ressort? Il ne faisait en effet aucun doute que la
sentence était rendue en matière internationale, elle n’était pas susceptible d’appel, ce qui
rendait la demande superflue, sauf à analyser la mission du Tribunal en une mission de
fixation et d’ajustement du prix. Quoiqu’il en soit, la réponse ne semble devoir faire aucun
doute en l’espèce. L’accord des parties sur la vente et sur le prix était définitif et la
demanderesse n’en demandait pas l’ajustement mais la condamnation du vendeur à une
indemnité, ce qui peut avoir le même effet économique mais n’a pas la même nature
juridique (en ce sens, V. A. Viandier, préc., n°3I).
—
IV. Dans son article précité, le professeur Viandier notait qu’en dépit de l’intérêt de la
société cédée à participer à la procédure, elle n’est pas partie à la garantie de passif et ne
saurait ni être attraite dans la procédure contre son gré, ni se prévaloir de la garantie de la
clause compromissoire (A. Viandier, préc., n° 38). Dans la présente affaire, on sait seule¬
ment qu ’après que l’acheteur ait adressé une demande d’arbitrage au secrétariat, la société
cédée est intervenue dans l’acte de mission comme demanderesse n° 2 —
présenter de demande contre le vendeur — et défenderesse à la demande reconvention¬
mais sans
nelle, le vendeur demandant, outre le paiement du complément du prix par l’acheteur, le
remboursement par la société cédée des prêts qu’elle lui avait consentis. De manière
intéressante, le Tribunal ordonne néanmoins la compensation des sommes dues au vendeur
par l’acheteur et la société cédée avec celles dues par le vendeur au seul acheteur au titre de
la garantie du passif et justifie cette décision par une motivation qu’on aurait pu souhaité
plus développée: le fait que l’acheteur, comme le montrait ses mémoires, agissait pour son
compte et celui de la société cédée et la connexité des dettes avec les sommes qu’il devait
au vendeur.
B. D.
Procédure
— Chambre de commerce internationale —
— —
Arbitrage international Chambre de commerce internationale Contrat de cession
d’actions

s

Convention d’arbitrage. — Interprétation.

— Droit applicable.
Convention d’arbitrage. — Clause combinée.
— Interprétation.
Compétence du Tribunal arbitral.
négatif.
— Compétence-compétence. — Effet
?.r
Un tribunal saisi d'une clause compromissoire pathologique se déclare incompétent
■r
après l’avoir interprétée en lui appliquant la règle d’interprétation du droit français.
Un Tribunal arbitral siégeant à Paris était saisi de la clause compromissoire suivante
figurant dans une police d’assurance conclue entre la société anglaise [X] et la société
française [Y]; la police était soumise au droit fiançais :
r. : « Tout différend découlant de la présente Police non résolu de manière amiable
entre les parties dans un délai maximum de trente jours de sa survenance, sera
tranché définitivement suivant le Règlement de conciliation et d 'arbitrage de la
Chambre de Commerce Internationale par un ou plusieurs arbitres nommés con¬
formément à ce Règlement si les parties en conviennent; autrement il sera fait appel
au Tribunal de Commerce de Paris. \X\font élection de domicile à Paris au bureau
de leur mandataire général dont l'adresse figure sur cette police ».
Un litige étant survenu entre les parties, [Y] avait attrait [X] devant le Tribunal de
commerce de Paris qui, au regard de la clause ci-dessus, s’est déclaré incompétent et a
renvoyé les parties à l’arbitrage. Avant même que cette décision ne soit rendue, [X] avait
saisi la Cour internationale d’arbitrage d’une demande d’arbitrage. [Y] s’y étant opposé, au
motif que la clause « n’exprim[ ait] pas un accord des parties à l’effet de soumettre à
¡’arbitrage les différends susceptibles de les opposer », la Cour a estimé prima facie
qu’il existait une convention d’arbitrage et a décidé que l’arbitrage aurait lieu. Ainsi
que le Tribunal arbitral le rappelle, cette décision étant administrative, il lui appartenait
de statuer sur sa propre compétence, conformément à l’article 6 (2) du Règlement.
[Y] soutenait que la clause « ne consisterait pas dans une véritable clause compromis¬
soire prévoyant, sans autre forme de procès, la solution des litiges à venir entre les parties
par un Tribunal arbitral constitué et statuant selon le règlement de la Chambre de
Commerce Internationale ». Il s’en est suivi un débat quant à la nature de la clause, rapporté
ainsi que suit par le Tribunal arbitral:
« Selon [Y], les parties n’auraient envisagé l’arbitrage que comme une possibilité
dont elles auraient à convenir entre-temps tandis que, à défaut d’une telle convention,
laquelle n’a pas été conclue en l’espèce, le Tribunal de commerce de Paris serait
compétent. Et c’est pourquoi [Y] aurait saisi d’emblée cette juridiction au fond.
Pour [X] au contraire, la clause devait être interprétée comme l’expression de
la commune volonté des parties de soumettre leurs différends futurs à l’arbitrage
de la Chambre de Commerce Internationale, une telle volonté n’ayant pas pu être
aussitôt démentie par la prévision, au demeurant inutile, d’une convention nou¬
velle, autrement dit d’un compromis à conclure entre-temps. A cet égard, la
mention, à la fin de la première phrase de l’article 19, de l’éventualité d’une
convention (« si les parties en conviennent »), suivie dans une deuxième phrase,
séparée de la première par un point virgule, de la prévision d’un recours subsi¬
diaire au Tribunal de commerce de Paris, ne s’appliquerait qu’à la matière parti¬
culière de la constitution du tribunal arbitral. Il y avait donc accord entre les
parties pour s’en remettre au Tribunal de commerce de Paris, plutôt qu’à la

Cour d’arbitrage de la Chambre de commerce internationale, du soin d’intervenir

dans cette constitution ».
Le Tribunal conclut que la clause litigieuse ne constitue pas un engagement définitif des
parties de se soumettre à l’arbitrage et il se déclare donc incompétent à l’issue du raisonne¬
ment ci-après.
Il s’interroge d’abord sur la loi applicable:
« Statuant en arbitrage international, le Tribunal arbitral se doit au premier chef
de déterminer la loi applicable en vertu de laquelle la question d 'interprétation qui
lui est soumise doit être résolue.
(...)
Dire d'un contrat qu’il est régi par le droit français, c'est admettre du même
coup que l 'interprétation de ce contrat: «s 'effectue en consultant» la loi française
(P. Mayer et V. Heuzé, Droit international privé, T éd., n° 740, p. 496; ou con¬
—
formément à la loi française, Y. Loussouarn et P. Bourel, Droit international privé,
n° 381, p. 459; Batiffol et Lagarde, t. II, n° 604, p. 300 et l’arrêt de principe:
Cass, civ., 23 nov. 1892: S. 1894, 1, 441).
Etant donné les positions respectives des parties, la question essentielle que le
Tribunal arbitral doit résoudre est de savoir si la clause [litigieuse] est une clause
compromissoire (thèse de [X]) ou si elle n'est qu 'une clause de juridiction combi¬
nant, à titre de principe, clause d’attribution de compétence au Tribunal de com¬
merce et, à titre d'option supposant un accord complémentaire des parties,
convention d’arbitrage en faveur de la Chambre de commerce internationale.
S’ils 'agit du choix d’un for judiciaire français, nul doute que l’appréciation et
l’interprétation de ce choix à l’intérieur du système judiciaire de la France doivent
être déterminés d’après la loi procédurale française (P. Mayer et V. Heuzé, op. cit.
n° 01 et s.). Or celle-ci autorise la prorogation de juridiction entre commerçants
(NCPC, art. 48) et en matière internationale. Même si les conditions générales de
la police n’avaient pas spécifié que celle-ci serait régie par le droit commun des
contrats, cette solution s’imposerait donc.
En revanche, s’il s’agit d’une clause compromissoire, son interprétation en
vertu de la loi française ne va pas de soi. En effet, d'une part, en vertu du principe
d’autonomie, ou séparabilité, de la convention d'arbitrage par rapport au contrat
principal qui la contient ou auquel elle se réfère, la loi applicable à ce dernier ne
s 'étend pas nécessairement à elle. D 'autre part, la clause compromissoire n 'est
soumise, en vertu de la jurisprudence Dalico, à aucune loi nationale particulière,
son existence et son efficacité dépendant exclusivement de la commune intention
des parties sous la seule réserve des règles impératives du droit français et de
Tordre public international (Cass. lre civ., 20 déc. 1993: Rev. arb. 1994, p. 116,
note H. Gaudemet-Talion; JDI 1994, p. 432, note E. Gaillard et p. 690, note
E. Loquin; Rev. crit. DIP 1994, p. 663, note P. Mayer. — Cass. 1K civ., 30 mars
2004, Uni-Kod: Rev. arb. 2005, p. 959, note Ch. Seraglini; Bull civ. 2004, I, n° 95,
p. 76; RTD corn. 2004, p. 443, obs. E. Loquin; JCP 2004, II, 10132, note G. Chabot).
Il ne s'imposerait donc pas en l’espèce de chercher à appliquer les règles
d’interprétalion des contrats indiquées aux articles 1156 et suivants du Code
civil français en tant qu’incluses dans les règles du droit français des contrats
potentiellement applicables, si les parties elles-mêmes ne les avaient invoqués,
chacune à son profit, mais dans une démarche identique témoignant implicitement,
mais nécessairement de leur volonté commune de considérer leur convention et en
particulier [la clause litigieuse], comme régie en tous cas par le droit français de
l’interprétation des contrats.
De ce fait, le Tribunal arbitral n 'a aucune difficulté à les faire siennes et s 'y
référer ».

ti
s
Ayant ainsi retenu le droit français pour interpréter la clause, le Tribunal en rappelle les
dispositions pertinentes avant de les mettre en œuvre:
« La seule tâche du Tribunal est bien, conformément à l'article 1156 du Code civil,
de rechercher la commune intention des parties « plutôt que de s 'arrêter au sens
littéral des termes ». Les articles pertinents de ce code sont en l'espèce l'article
1157, dit de la règle de « l’effet utile » à donner de préférence à une clause taxée
d'ambiguité; celle de l'article 1158 qui incline à rechercher le sens le plus propre à
la matière; l‘article 1159 tendant à résoudre une ambiguité par référence à l ' usage
et enfin celle de l'article 1162 qui, «dans le doute» ( . . . ) conduit à interpréter
la convention « contre celui qui a stipulé et en faveur de celui qui a contracté
l'obligation ».
Mais en l'espèce, la clause litigieuse paraît moins pécher par ambiguité que par
maladresse de rédaction.
Lue dans son élan naturel, la première phrase de [la clause] permet assurément
de comprendre, et ceci en toute clarté, que c'est seulement « si les parties en
conviennent », qu'im différend découlant de cette police « sera tranché définitive¬
ment suivant le règlement de conciliation et d’arbitrage de la Chambre de com¬
merce internationale par un ou plusieurs arbitres nommés conformément à ce
règlement ».
La condition « si les parties en conviennent » termine la phrase, malencontreu¬
sement. Elle aurait été mieux placée au commencement de celle-ci: « si les parties
en conviennent etc. ». Mais littéralement, le sens est identique, quelle que soit la
place de la condition.
La suite signifie non moins clairement que, si les parties n 'en conviennent pas
(« autrement »...) le tribunal de commerce Paris sera compétent. Et ce n 'est pas
n 'importe quel tribunal de commerce, mais bien celui de Paris, plutôt que celui de
( ... ) qui aurait pu être compétent en raison du siège social de [Y] dans son
ressort. Sur quoi [X]/o«t immédiatement élection de domicile à Paris « au bureau
de leur mandataire général ». Tl y a prorogation de for judiciaire, ce que peut
expliquer le titre « juridiction » sous lequel la clause est insérée, encore qu'un titre
d’article ne soit jamais déterminant par lui-même et qu‘il ne soit pas rare qu 'une
clause d ’arbitrage apparaisse sous un tel titre, surtout dans les contrats rédigés en
anglais, qui est la langue ordinaire de [X], auteurs des conditions générales de
cette police, ici rédigée en français.
Il faut, en regard de cette évidence, user d’un certain effort de construction pour
soutenir que la’convention des parties’ visée dans la clause ne se rapporte qu’à la
constitution du Tribunal arbitral en dehors du mode et de la procédure de désig¬
nation propres à la Cour internationale d’arbitrage de la Chambre de commerce
internationale et que, à défaut d'une convention ainsi limitée dans son objet, les
parties devraient s’adresser au tribunal de commerce de Paris pour pallier leur
désaccord.
Tout d'abord, [X] n 'a fourni aucune preuve, testimoniale ou autre, des raisons
objectives ou subjectives pour lesquelles on aurait admis une telle dérogation au
mécanisme usuel de désignation et de confirmation des arbitres établi par le Règle¬
ment de la CCI. Ce mécanisme donne aux parties les meilleures garanties d’exer¬
cice de leur libre choix et leur offre un service efficace à l'effet de constituer un
tribunal arbitral parfaitement indépendant. Ce n 'est pas à dire que le tribunal de
commerce de Paris n 'en soit pas capable. Néanmoins, celui-ci n 'offre pas des
services aussi étendus et rodés aux affaires internationales. Alors que, tout au
contraire, il est pleinement en mesure de statuer au fond sur tout litige, même
international, qui lui est soumis.
En second lieu, [X] n‘est pas en état de se référer à un usage. S 'il s'agit d 'usage
général, on sait que l’arbitrage commercial international est de coutume entre

assureurs et réassureurs, mais il n’en est pas de même entre assureurs et assurés,
même lorsque l’assuré est, comme [X], une entreprise de quelque envergure à
laquelle ne s’adresseraient pas les restrictions destinées à protéger, en celte
matière, la partie faible (l’assuré) contre la partie dominante (l’assureur).
S’il s’agit plus spécialement d'usage en présence de la Cour internationale
d’arbitrage de la Chambre de commerce internationale, on ne peut pas dire
qu 'il soit usuel de retirer à cette institution les tâches réglementaires relatives à
la désignation et à la confirmation des arbitres au profit d’un tribunal étatique.
C’est même plutôt pour échapper à l’emprise de ce dernier que l'on recherche en
général les services de cette institution. On ne voit donc pas pour quelles obscures
raisons les parties, et [X] en particulier, auraient pu vouloir s’écarter des compé¬
tences de la Cour d'arbitrage en la matière si elles avaient effectivement convenu à
l’avance de choisir l’arbitrage comme mode de règlement de leurs litiges.
De plus, il n'est pas du tout certain que des parties puissent s'en remettre
entièrement et définitivement à un tribunal étatique du soin de constituer un Tri¬
bunal arbitral statuant selon le règlement de la CCI. Encore faut-il que l 'opération
reste compatible avec l'esprit et avec les règles essentielles de la CCI en raison
desquelles la Cour internationale d’arbitrage aurait à dire le dernier mot, par
exemple s’il advenait que tel ou tel arbitre, fût-il désigné par un tribunal étatique,
ne remplisse pas les conditions d'indépendance et d'impartialité requises (cf. Y.
Derains et E. A. Schwartz, A guide to the ICC Rules of Arbitration, ed. 2005, p. 142
—
et s. M.W. Buhler et Th. H. Webster, Handbook of ICC Arbitration, ed. 2005,
p. 126). On imaginé les difficultés auxquelles se heurterait alors la soi-disant
clause de désignation du Tribunal de commerce comme autorité de nomination.
Le bon sens s’oppose à ce que des parties averties comme [X] et [Y] se soient
ingéniées à se créer des complications.
La réalité est qu 'elles ont préféré laisser la porte complètement ouverte et à la
juridiction consulaire et à la juridiction arbitrale en vertu d’une clause optionnelle
dépourvue d’ambiguité : ou bien ce sera un tribunal arbitral, si elles décident
d’aller à l’arbitrage ou bien ce sera le tribunal de commerce de Paris. Dans ce
sens, la clause a un effet utile indéniable et le Tribunal arbitral ne peut pas lui en
conférer d’autre à moins de la dénaturer.
Peu importe à cet égard la jurisprudence en vertu de laquelle l’existence d’une
clause compromissoire dispense de tout compromis. Cela est vrai si la clause
compromissoire est inconditionnelle. Cela ne l’est plus si elle-même a prévu une
condition expresse pour qu’il y ait arbitrage, à savoir que les parties confirment
leur convention entre-temps, ou bien passent un compromis sur litige né.
Enfin, il n’a pas été contesté que les conditions générales de la police, y inclus
[la clause litigieuse] ne sont ni plus ni moins que celles de [X] auxquelles [Y] a
adhéré sans qu 'elles aient donné lieu à négociation effective entre les parties.
À supposer donc qu 'elles suscitent un doute, ce que le Tribunal ne pense pas,
elles devraient être interprétées en faveur de [Y] et contre [X] qui a été la partie
stipidante au sens del'article 1162 du Code civil, règle d’application générale tant
en droit international qu 'en droit national français des contrats ».
Le tribunal s’étant déclaré incompétent, il met les frais de l’arbitrage à la charge de [X] et
rejette une demande de cette dernière que les frais et dépens exposés devant le Tribunal de
commerce soient mis à la charge de [Y], au motif qu’il n’est pas compétent pour en
connaître.
—
NOTE: I. Saisi d’une clause combinée se référant à la fois à l’arbitrage CCI et au
tribunal de commerce de Paris, le Tribunal arbitral s’interroge en premier lieu sur la loi
applicable à la clause. La question était délicate puisque sa solution pouvait varier en
fonction de l’analyse qui en était faite: une clause compromissoire pour la demanderesse,
une clause attributive de juridiction pour la défenderesse.

En effet, au regard des règles française de conflit de loi, l’interprétation des clauses
contractuelles y compris les clauses attributives de juridiction est soumise à la loi con¬
tractuelle choisie par les parties, c'est-à-dire en l’espèce la loi française. De surcroît, la
validité de la clause attributive de juridiction désignant une juridiction française est égale¬
ment régie par la loi française (P. Mayer et V. Heazé, Droit international privé, 9e éd.,
n° 301 et 302).
En revanche, il résulte du principe d’autonomie de la convention d’arbitrage qu’elle
n’est pas nécessairement régie par la loi applicable au fond. La question est bien admise en
droit comparé (J.-F. Poudret et S. Besson, Droit comparé de l’arbitrage international, éd.
2002, n° 178 et 179) et cela, « que l'on estime que la convention d’arbitrage doit être
soumise à un droit déterminé en application des règles de conflits classiques ou que l’on
v admette comme le fait la jurisprudence la plus récente, que son existence et sa validité
doivent être régies par des règles matérielles adaptées au caractère international de
■
l 'arbitrage » (Ph. Fouchard, E. Gaillard et B. Goldman: Traité de l 'arbitrage commercial

i. international, éd. ¡996, n°412).
Rien ne permettait donc de conclure que la soumission du contrat principal au droit
français s’étendait à la clause litigieuse si elle devait in fine s’analyser en une clause
compromissoire. Il est vrai que la jurisprudence de nombreux pays (J.-F. Poudret et
S. Besson, préc., n°300) considère que les parties ayant fait élection d’une loi nationale
ont entendu étendre son application à tout le contrat y compris la clause compromissoire, et
de nombreux auteurs (par ex. Ch. Seraglini, Rev. arb. 2005, notess Cass. 1™ civ., 30 mars
2004, p. 959) penchent dans le même sens. Cependant, comme le rappelle le Tribunal
arbitral, en droit français, depuis la jurisprudence Dalico, les conventions d’arbitrage ne
sont pas en principe soumises à une loi nationale et, en vertu d’une règle matérielle du droit
de l’arbitrage international, leur existence et leur efficacité s’apprécient sous réserve des
règles impératives du droit français et de l’ordre public international, d’après la commune
volonté des parties. Dès lors que la loi française ne s’appliquait pas à la clause litigieuse au
regard du droit française de l’arbitrage international, la mise en œuvre des règles d’inter¬
prétation du droit français des contrats n’avait plus lieu d’être. Au demeurant, avant même
l’adoption de la jurisprudence Dalico, la Cour de cassation avait approuvé une courd’appel
d'avoir interprété une convention d’arbitrage sans au préalable rechercher la loi qui lui était
applicable et donc indépendamment de toute loi nationale (Cass. Ve civ., 14 déc. 1983:
Rev. arb. 1984, p. 481).
Or, le Tribunal échappe à ce dilemme en constatant que les parties invoquant toutes deux
les règles d’interprétation du Code civil, avaient implicitement indiqué leur volonté com¬
mune de soumettre la clause litigieuse au droit français, à tout le moins celui de l’inter¬
prétation des contrats. Cette analyse semble pouvoir se réclamer de l’arrêt Uni-Kod (Rev.
arb. 2005, p. 959, note Ch. Seraglini; Bull. civ. 2005,1, n° 95, p. 76; RTD corn. 2004, p. 443,
obs. E. Loquin; JCP 2004, II, 10132, note G. Chabot) dans lequel la Cour de cassation, en
notant que « les parties n’avaient pas soumis la validité et les effets de leur convention
d’arbitrage à ( . . . ) aucune loi déterminée » paraît a contrario avoir admis que les parties
puissent soumettre leur accord à une loi nationale. Un auteur (Ch. Seraglini, préc.) a
suggéré qu’il soit: « considéré qu’à défaut de dispositions manifestant une intention contra¬
ire des parties, le choix de la loi exprimé par les parties de façon générale doit être présumé
valoir pour l’ensemble des stipulations contractuelles, clause compromissoire comprise.
Cependant, la distinction serait maintenue entre « principe de licéité », soumis à une règle
matérielle française, et conditions de validité ordinaires de la clause d’arbitrage et applic¬
ables à toute convention, quelle qu’en soit la nature ». Quoique la conclusion par les
arbitres que la clause litigieuse n’est pas une clause compromissoire justifie a posteriori
l'application du droit français, sa mise en œuvre pour analyser la clause fondée sur la
position procédurale commune des parties interprétées comme un choix de loi applicable,
fait de la présente sentence une illustration de cette position.
Reprinted fan the Clunet 799
:
—
IL Les clauses dites « combinées », dans lesquelles les parties font référence à la fois à
un tribunal arbitral et une juridiction nationale, ne sont pas rares (sur ce point, V. Ph.
Fouchard, E. Gaillard et B. Goldman: Traité de l 'arbitrage commercial international, éd.
1996, n° 490). À travers l’interprétation de la volonté, les tribunaux arbitraux ou les juges
nationaux cherchent souvent à les sauver (V. par ex. sentence CCI n° 8790, 2000) notam¬
ment en articulant les compétences des juridictions respectives. Tel était sans doute l’espoir
du demandeur en soutenant que le rôle du tribunal de commerce de Paris était limité à la
constitution du Tribunal arbitral. Cette argumentation fait écho à un arrêt Paul Smith Ltd vs
H&S International Holdings dans lequel la High Court a interprété une clause qui, sous le
titre « language and law » prévoyait l’application au contrat du droit anglais et la com¬
pétence exclusive des juridictions anglaises sur le contrat comme signifiant que la loi
—
régissant l’arbitrage prévu par une clause compromissoire figurant également au contrat
— serait la loi anglaise, que les compétences des juridictions anglaises seraient limitées aux
seules difficultés d’application de la loi de l’arbitrage, en dépit d’une rédaction qu’elle
qualifie de « malheureuse ». Elle précisait que cette incongruité était insignifiante par
rapport aux conséquences désastreuses qu’il y aurait à considérer comme non écrite une
convention d’arbitrage dans un contrat commercial international (High Court, 18 janv.
1991: Yearbook 1994, p. 725).
Ayant retenu l’application du droit français, le Tribunal arbitral déclare rechercher,
conformément aux termes de l’article 1156 du Code civil, la commune intention des parties
plutôt que de s’arrêter au sens littéral des termes. Cependant, il fonde essentiellement sa
décision sur une analyse de la disposition dont il écrit que, « lue dans son élément naturel »,
elle permet de comprendre « en toute clarté », en dépit d’une « maladresse de rédaction »
que les parties ont fait élection de compétence au profit du Tribunal de commerce de Paris
sauf à ce qu’elles décident de soumettre leur litige à un Tribunal arbitral CCI au moyen d’un
nouvel accord.
Cependant, le Tribunal arbitral ne s’arrête pas à cette analyse littérale et cherche à
conforter sa conclusion en observant qu’il n’est pas d’usage dans l’arbitrage CCI de retirer
à cette institution son rôle dans la constitution du Tribunal arbitral; que la clause a pour
— —
effet utile de donner compétence au tribunal de commerce de Paris qui ne serait autre¬
ment pas territorialement compétent ou, sur accord nouveau des parties, à un tribunal
arbitral, excluant par là-même toute autre juridiction; enfin que le contrat ayant été rédigé
par le demandeur à l’arbitrage, le principe contra proferentem joue en sa défaveur. Ainsi
que le remarque le Tribunal à propos de ce seul dernier principe, ces règles d’interprétation
sont d’application générale en droit international autant qu’en droit français des contrats et
figure par exemple aux articles 4.3 (pour les usages), 4.5 (pour l’effet utile) et 4.6 (règle
contra proferentem) des Principes UNIDROIT relatifs aux contrats du commerce
international 2004. Même si le Tribunal arbitral n’avait pas retenu l’application du droit
français, on voit mal quel autre type de raisonnement il aurait pu mettre en œuvre.
—
III. Une dernière observation s’impose. Le Tribunal arbitral se déclare incompétent
alors que le tribunal de commerce de Paris saisi par le défendeur à l’arbitrage s’était déjà
déclaré incompétent au profit de l’arbitrage. Cette situation n’a rien de surprenant puisque
le tribunal de commerce ne pouvait décider autrement conformément à l’article 1458 du
Code de procédure civil, en présence d’une convention d’arbitrage apparente qui ne pou¬
vait être qualifiée de « manifestement mdle ». C’est là l’application de l’effet négatif du
principe de compétence-compétence qui, en droit français, veut que le Tribunal arbitral se
prononce en premier sur l’existence et la validité de la clause sous le contrôle a posteriori
du juge de l’annulation. Une difficulté se pose cependant du fait que, ainsi que nous
l’apprend la sentence, le jugement du tribunal de commerce a fait l’objet d’un contredit
qui n’avait pas été tranché à la date du prononcé de la sentence. Deux juridictions différ¬
entes peuvent donc être saisies de la question de l’effet de la convention litigieuse: la cour
d’appel saisie d’un éventuel recours en annulation et celle saisie du contredit qui a

ir.::

maintenant connaissance de la position du Tribunal arbitral. Il semble cependant que celle-
ci ne puisse que confirmer la décision de première instance ou, à défaut, surseoir à statuer,
tant que la sentence reste susceptible d’annulation, cette dernière ne permettant pas d’éta¬
blir que la Convention est « manifestement nulle ».
B. D.
—
T.V

3
I. - Convention d’arbitrage. — Validité. —

Compétence exclusive de
— — —
l’autorité judiciaire. Droit applicable. Droit italien. Convention de New
York du 10 juin 1958 (applicabilité).
— — —
IL Contrat. — Résolution. Force majeure. Sanctions internationales
à l’encontre de l’État du lieu d’exécution des obligations contractuelles. —
Embargo.
JH. — Intérêts. — Effets des sanctions internationales à l’encontre de l’État
du lieu d’exécution des obligations contractuelles. Taux. —
L 'arbitre unique rejette l‘exception d 'incompétence soulevée par la défenderesse sur la
base d'une disposition de droit italien relative à la dérogation à la compétence de l 'autorité
judiciaire, qui a été abrogée par la loi réformant le droit international privé. Il rejette
également l 'exception d 'incompétence fondée sur des dispositions relatives à la répartition
de la compétence territoriale et d'attribution entre les différents juges italiens.
L'arbitre unique décide que les sanctions internationales à l’encontre de la République
socialiste fédérale de Yougoslavie ne justifient pas la résolution du contrat.
L’arbitre unique accorde à la demanderesse une somme au titre des commissions
d’agence. Il accorde également une somme à la défenderesse au titre d’un paiement
effectué par la défenderesse pour le compte de la demanderesse et décide de compenser
les créances réciproques des parties.
L 'arbitre unique décide que les parties supportent les frais de l’arbitrage à parts égales.
Une société italienne X et une société yougoslave Y avaient conclu un contrat, par lequel
cette dernière était nommée représentant exclusif d’X pour la vente de chaussures sur le
territoire de la République socialiste fédérale de Yougoslavie. La commission était fixée à
15% du prix net facturé des produits objet du contrat. Un litige, que les parties n’ont pas pu
résoudre à l’amiable, ayant surgi quant au versement de la commission et aux frais de
transport de la marchandise, la partie yougoslave a saisi la Cour internationale d’arbitrage
d’une requête d’arbitrage sur la base de la clause compromissoire contenue au contrat.
L’arbitre unique examina tout d’abord l’exception l’incompétence soulevée par la
défenderesse sur la base de l’article 2 du Code de procédure civile italien en vigueur à
la date du début de l’instance arbitrale. Cet article prévoyait qu’il ne pouvait être dérogé à la
compétence des tribunaux italiens qu’à des conditions très restrictives. La seconde excep¬
tion d’incompétence de la défenderesse était fondée sur les articles 409 et 413 du Code de
procédure civile, qui identifient le juge compétent pour connaître de plusieurs catégories de
litiges, y compris les litiges en matière d’agence et de représentation commerciale.
L’arbitre rejeta l’exception de façon très nette dans les termes suivants:
«L’arbitre remarque à titre liminaire que l'argumentation de la défenderesse X, si
elle était suivie, aboutirait à invalider tous les arbitrages internationaux dans
lesquels figurerait une partie italienne. En réalité, la thèse soutenue par la société
X ne peut être suivie pour plusieurs raisons. Tout d'abord, l'article 2 du Code de
procédure civile italien a été abrogé par l’article 73 de la loi n° 218 du 31 mai
1995; ensuite et surtout, l'Italie a ratifié par une loi n° 62 du 19 janvier 1968 la
Convention de New York du 10 juin 1958 [ ... ]

II est à noter que les dispositions de la Convention de New York sont pleinement
en accord avec l’article 808 du Code de procédure civile qui reconnaît également
la validité et l'efficacité de la clause compromissoire et tout spécialement avec
l’article 832 du même code qui concerne l’arbitrage international et réserve
expressément dans son alinéa 2 les dispositions des conventions internationales.
Au surplus, et comme l'a fait remarquer le conseil de la demanderesse à l’audi¬
ence, les Comités italien (1920) et Yougoslave (1927) comptent parmi les premiers
membres de la Chambre de commerce internationale. Cet élément dé fait rend
l'argumentation de la défenderesse encore plus étonnante, car on voit mal pour¬
quoi et comment le Comité italien aurait pu concilier sa qualité de membre de la
CCI avec un droit interdisant l'arbitrage international.
Quant à la partie de l’argumentation relative à la prétendue violation des
articles 409 alinéa 3 et 413 du Code de procédure civile italien, elle doit également
être écartée car ces textes sur la compétence territoriale ou d’attribution ne con¬
cernent que la répartition des compétences entre les diverses juridictions étatiques
italiennes et sont sans application à un arbitrage international ».
L’arbitre unique rejeta ensuite l’argument de la demanderesse fondé sur la signature de
l’acte de mission par la défenderesse, puisque l’acte de mission comptait la compétence de
l’arbitre parmi les questions à résoudre:
« Ces raisons suffisent pour considérer que l’arbitre est compétent, mais il convient
d’écarter l’ argument de la demanderesse qui déduisait de la signature de l 'acte de
mission par la demanderesse son acceptation de la compétence de l'arbitre. L’acte
de mission retient sans ambiguité que l’une des questions à résoudre est précisé¬
ment celle de la compétence de l’arbitre, ce qui montre bien que la question n’était
pas déjà acquise ».
L’arbitre se déclara donc compétent dans les termes suivants:
« En conséquence, l’arbitre rejette l'exception d’incompétence opposée par la
société Y et se déclare compétent pour connaître du présent litige sur la base de
la clause compromissoire contenue à l 'article 5 du contrat liant les parties, telle
que complétée par l’acte de mission ».
Sur le fond, la défenderesse alléguait que le contrat n’avait jamais reçu de commence¬
ment d’exécution et que des événements de force majeure (les sanctions internationales à
l’encontre de la République socialiste fédérale de Yougoslavie et sa dissolution) avaient
rendu impossible l’exécution des obligations contractuelles et justifiaient le prononcé de la
résolution du contrat. L’arbitre unique constata que des livraisons de marchandises avaient
eu lieu et rejeta les arguments de la défenderesse comme suit:
« L'arbitre constate tout d’abord qu'à la supposer démontrée, l’absence de com¬
mencement d 'exécution d'un contrat ne serait pas en soi ime cause de résolution de
celui-ci. Ensuite et en l’espèce, il convient de relever qu’il y eu effectivement un
commencement d'exécution, puisqu 'il est établi par les pièces versées au dossier
que de la marchandise en provenance de l 'Italie a effectivement été transportée en
Yougoslavie. Les deux parties sont d’ailleurs convenues lors de l’audience (la
défenderesse revenant ainsi sur ses premières écritures) que le contrat avait
connu au moins un début d’exécution, puisque cinq factures correspondant à
des expéditions avaient été émises et réglées. Cette constatation ne dispense cepen¬
dant pas de se demander si un cas de force majeure a existé et s’il a été de nature à
provoquer, non la suspension du contrat, mais sa résolution ou sa résiliation.
Dès lors qu’il est constaté que des livraisons de marchandises ont bien eu lieu,
on ne peut qu'en déduire que si un cas de force majeure s'est produit, il n'est
intervenu qu’en cours d’exécution du contrat et ne pourrait donc affecter que les
obligations contractuelles non encore exécutées. Celles ici en cause sont relatives
804 Reprinted from lhe Outlet

"ÿT: 'ÿ-'ÿ-""J"- - - :VV:
¡.,

au paiement de la commission correspondant aux factures effectivement réglées à
la défenderesse.
Aujourd’hui, /es sawctíons internationales prise à l 'encontre de la République
socialiste fédérative de Yougoslavie ayant été levées, l’arbitre ne voit aucun élé¬
ment permettant d étayer l existence d’une quelconque cause de force majeure
relativement au lieu d'exécution du contrat ».
Quant aux effets de la partition du territoire de la République Yougoslave, l’arbitre:
« constate que la demande ne porte pas sur l’exécution du contrat pour l’avenir,
mais sur son exécution relative à une période où la partition de l ’ancienne Répub¬
lique socialiste fédérative de Yougoslavie n’avait pas encore eu lieu. L'arbitre
considère que la défenderesse n’apporte pas la preuve de l’incidence que la
•J partition de la Yougoslavie aurait pu avoir sur des livraisons déjà effectuées sur
ï: un territoire bien identifié ».
En ce qui concerne la demande en paiement des commissions, la sentence donna gain de
cause à la demanderesse et condamna la défenderesse à lui verser un montant correspon¬
dant au 15 % des sommes facturées et payées à la défenderesse en exécution du contrat, net
de la somme due par la demanderesse au titre de frais de transport. L’arbitre unique
accueillit également la demande reconventionnelle de la défenderesse relative au rembour¬
sement d’une somme versée par la défenderesse à une société tierce pour le compte de la
demanderesse.
Les sommes allouées aux parties furent augmentées des intérêts simples à compter de la
date à laquelle chaque demande avait été soulevée pour la première fois. Après avoir
examiné la position des parties (la demanderesse demandait un taux annuel de 10 % à
compter de la date de dépôt de la demande d’arbitrage, majoré de 6 % au titre d’intérêt de
retard), l’arbitre décida que les sommes allouées aux parties portent intérêt au taux annuel
de 6 %:
« L'arbitre a interrogé les parties à l’audience sur la question de savoir si les
intérêts devaient être pris en compte, ou s’ils devaient être neutralisés pendant
toute la durée de l'embargo. La demanderesse a considéré que les intérêts n'avai¬
ent cessé de courir, la défenderesse a soutenu la thèse inverse.
La question est fort délicate, car elle n 'est pas réglée par les divers droits
ataquéis les parties se sont référées (droit suisse et dispositions impératives des
droits italien et yougoslave). Par ailleurs, l'arbitre ne considère pas qu'il existe en
la matière un usage ou une règle spécifique quelconque du commerce
international. Il devra donc élaborer lui-même la solution.
Pour ce faire, l’arbitre expose ci-après les arguments qui peuvent jouer en
faveur de chacune des deux thèses invoquées.
Il doit être relevé dans un sens que l’embargo empêche, non les intérêts de
courir, mais leur versement, car il interdit tout transfert de fonds vers le pays
cible de l 'embargo. En revanche et comme l 'a relevé le conseil de la demanderesse
durant l'audience, rien n ’empêche le ressortissant du pays touché par l’embargo
de payer les sommes qu’il doit.
Toutefois en l'espèce, les parties étant chacune demanderesse et défenderesse
en raison de l'existence d’une demande reconventionnelle, l’arbitre considérera
que l’existence d'un doute chez chacune d'elles quant à sa qualité de créancière ou
de débitrice justifie que la question soit envisagée de la même manière pour les
deux parties.
Tout au long de la période d'embargo, les parties ont été empêchées de traiter
ensemble dans des conditions normales; il ne paraît pas de bonne justice à l’arbitre
de faire peser sur une partie le coût de l'embargo, mais il lui paraît également de
bonne justice d'éviter que celui-ci ne se transforme en aubaine pour une partie, eh
lui permettant en définitive de s'exonérer à bon compte de son défaut d ‘exécution.

En considération des éléments qui précèdent, l 'arbitre considère que les intérêts
qui seront retenus devront être destinés à neutraliser l 'érosion monétaire et donc à
éviter que la partie qui s 'est vue privée de fonds qui en définitive lui revenaient soit
pénalisée. Pour parvenir à cette fin, l 'arbitre considère qu'il doit retenir la solution
selon laquelle les intérêts ont continué à courir pendant la période couverte par
l 'embargo, mais le taux d'intérêt annuel doit être raisonnable. En l'absence de taux
contractuellement choisi par les parties, l’arbitre retiendra ici un taux de 6 %.
Ce taux est applicable à toutes les créances reconnues au profit de l'une ou de
l'autre des parties, dès lors que les intérêts ont été réclamés; le point de départ des
intérêts est fixé à la date de la demande d’arbitrage, soit le [ ... ], pour la créance
de la partie demanderesse X et à la date de son premier mémoire, soit le f ... J,
pour toute créance qui serait reconnue au profit de la partie défenderesse Y ».
L’arbitre ordonna la compensation entre les montants accordés aux parties au titre de
leurs demandes et décida que les parties supportent les fiais de la procédure à parts égales.
— —
NOTE. I. La première exception d’incompétence de la défenderesse se fondait sur
une disposition du droit italien relative à la compétence qui a été en vigueur jusqu’à 1995.
L’article 2 du Code de procédure civile prévoyait que la compétence du juge étatique « ne
peut pas être écartée en faveur d’une juridiction étrangère ou d'arbitres siégeant à l’étran¬
ger, sauf s 'il s'agit d 'un litige relatif à des obligations entre étrangers ou entre un étranger
et un italien n'ayant ni sa résidence ni son domicile en Italie, et si la dérogation est faite par
écrit » (traduction non officielle par nos soins). A l’appui de son objection, la défenderesse
invoquait la nature « d'application nécessaire » de l’article 2 et la clause de choix de loi
contenue au contrat, qui prévoyait: « Le droit suisse est applicable, ainsi que les disposi¬
tions impératives en vigueur de la République socialiste fédérative de Yougoslavie et les
dispositions impératives (en vigueur) de la République italienne ».
Le lieu de l’arbitrage étant Paris et la clause de choix de loi citée ci-dessus ayant pour
objet seulement le droit applicable au fond, on pourrait au préalable s’interroger (ce que
l’arbitre n’a pas fait) sur l’applicabilité du droit italien à la compétence de l’arbitre. Or, en
l’absence d’accord des parties sur la loi applicable à la convention d’arbitrage, la validité et
les effets de celle-ci sont généralement considérés comme étant soumis à des règles maté¬
rielles indépendantes de tout ordre juridique national (V. Sentence dans l’affaire n° 8910:
JDI 2000, p. 1085, obs. D. Hascher: « pour que la loi émirienne s'impose au tribunal
arbitral, encore faudrait-il qu’elle ait vocation pour régir la clause compromissoire
insérée dans le contrat de distribution exclusive en application de la méthode conflictuelle.
Or, le droit français de l 'arbitrage qu 'un tribunal arbitral siégeant à Paris doit appliquer,
exclut précisément cette méthode en posant le principe de l’autonomie de la convention
d'arbitrage non seulement par rapport au contrat de base mais également par rapport à
toute loi étatique » ; dans la jurisprudence française, V. Cass. 1n civ., 20 déc. 1993, Dalico:
JurisData n° 1993-002459; JDI 1994, p. 432, obs. E. Gaillard; Rev. arb. 1994, p. 116, obs.
H. Gaudemet-Talion: « en vertu d'une règle matérielle de droit international de
l 'arbitrage, la clause compromissoire est indépendante juridiquement du contrat principal
qui la contient directement ou par référence et que son existence et son efficacité s 'appré¬
cient, sous réserve des règles impératives du droit français et de Tordre public
international, d’après la commune volonté des parties, sans qu’il soit nécessaire de se
référer à une loi étatique ». - pour d’autres références, V. P. Fouchard, E. Gaillard et
B. Goldman, On International Commercial Arbitration: The Hague, Boston, London, 1999,
p. 228-236). En tout état de cause, la référence à la loi applicable au fond ne paraît pas
justifiée (pour l’application de la seule loi du lieu de l’arbitrage à l’arbitrabilité du litige,
V. Sentence rendue dans l’affaire CCI n° 12193: JDI 2007, p. 1276, obs. E. Silva-Romero;
contra, pour l’extension de lex causae à la clause compromissoire, V. Sentence dans
l 'affaire «° 6379, J.-J. Arnaldez, Y. Derains et D. Hascher, Recueil des sentences arbitrales
de la CCI 1991-1995. p. 134).

Le droit italien en matière de dérogation à la compétence d’une juridiction italienne en
faveur d’une juridiction étrangère ou d’arbitres siégeant à l’étranger a subi une évolution
importante. L’article 2 du Code de procédure civile était une règle obsolète, dès lors que la
faculté des parties de déroger à la compétence étatique était soumise à la condition de
l’absence d’un lien significatif du rapport avec l’ordre juridique italien. Cette disposition
témoignait encore de la méfiance du législateur italien à l’égard des clauses de choix de for
et de la nature exceptionnelle de celles-ci. Cependant, pour ce qui concerne l’arbitrage, déjà
à la date de son entrée en vigueur en 1940, la portée de l’article 2 du Code était limitée par
l’article 1er du protocole relatif aux clauses compromissoires, adopté à Genève en 1923 et
ratifié par l’Italie, qui obligeait les États contractants à reconnaître la validité_ des conven¬
tions d’arbitrage entre « parties soumises respectivement à la juridiction d’États contrac¬
tants différents », et par la Convention de Genève de 1927 sur l’exécution des sentences
$ arbitrales étrangères, qui intégrait le régime du Protocole en prévoyant la reconnaissance et
K. l’exécution des sentences arbitrales étrangères (A. Migliazza et R. Luzzatto, Le convenzioni
intemazionali in tema di arbitrato e il diritto italiano: Archivio giuridico, 1974, p. 214.
La portée de l’article 2 du Code tut ultérieurement réduite, voire annulée, en 1968, suite
à la ratification par l’Italie de la Convention de New York, d’après laquelle chacun des
États contractants « reconnaît la convention écrite par laquelle les parties s’obligent à
soumettre à un arbitrage tous les différends ou certains des différends qui se sont élevés ou
pourraient s'élever entre elles au sujet d’un rapport de droit déterminé, contractuel ou non
contractuel, portant sur une question susceptible d'être réglée par voie d’arbitrage »
(article II, alinéa 1; pour les effets de l’entrée en vigueur de la Convention sur l’article
2 du Code de procédure civile, V. Cour de Cassation italienne, 13 déc. 1971, n° 3620.
Cour de Cassation italienne, 25 janv. 1977, n° 361). Comme remarqué à juste titre par
—
l’arbitre unique dans la sentence ici rapportée, cette disposition était déjà en vigueur en
Italie à la date de la conclusion du contrat et à celle du début de l’instance arbitrale. La
priorité des règles de la Convention, qui était contestée par la défenderesse dans le cas
présent, est assurée par leur caractère de lex specialis par rapport au droit commun italien et
est aujourd’hui reconnue par l’article 2, alinéa 1, de la loi de droit international privé (loi
n° 218 de 1995).
L’article 2 du Code a été expressément abrogé par la loi n° 218 (art. 73), qui reconnaît
aujourd’hui le droit des parties de se soustraire à la juridiction italienne, sous réserve de la
preuve écrite de l’accord dérogatoire et de la nature « disponible » des droits faisant l’objet
du litige, et qui fait donc abstraction de la nationalité, de la résidence et du domicile des
parties (article 4, alinéa 2, de la loi n° 218: « La compétence italienne peut être écartée
contractuellement en faveur d 'un juge étranger ou d’un arbitrage étranger si la dérogation
est prouvée par écrit et le litige a pour objet des droits disponibles », traduction par nos
soins).
La motivation de l’arbitre unique sur ce point est claire et convaincante. Cependant,
l’affirmation d’après laquelle « l’argumentation de la défenderesse Y, si elle était suivie,
aboutirait à invalider tous les arbitrages internationaux dans lesquels figurerait une partie
italienne » ne paraît pas irréfutable, puisque l’article 2 du Code de procédure civile
(abrogé) n’interdisait pas la participation d’une partie italienne à un arbitrage international
(rectius, étranger) de manière absolue, mais la soumettait à des conditions très restrictives.
Il en va de même pour ce qui concerne la référence au rôle du Comité italien de la CCI: « on
voit mal pourquoi et comment le Comité italien aurait pu concilier sa qualité de membre de
la CCI avec un droit interdisant l’arbitrage international ». Force est de constater, non
seulement que l’interdiction n’était pas absolue et ne concernait pas les arbitrages inter¬
nationaux en tant que tels (mais seulement les arbitrages étrangers), mais aussi que le
soutien du Comité italien aux activités de la CCI n’était pas incompatible avec une législa¬
tion peu favorable à l’arbitrage.

La deuxième partie de l’exception d’incompétence soulevée par la défenderesse, fondée

sur les articles 409 et 413 du Code de procédure civile italien, était tout autant injustifiée.
Comme remarqué par l’arbitre unique, l’objet de l’article 413 (que l’article 409, n° 3,
déclare applicable aux « rapports d’agence, de représentation commerciale et aux autres
rapports de collaboration qui consistent en une prestation de service continue et coordon¬
née, pour la plupart personnelle, même si à caractère non subordonné », traduction par nos
soins) est la répartition de la compétence territoriale ou d’attribution entre les divers juges
italiens, et non la répartition de la compétence entre le juge étatique et le juge arbitral.
—
U. La deuxième exception de la défenderesse portait sur les effets des événements qui
ont affecté la Yougoslavie pendant les années 1990, et notamment les sanctions décrétées
par la communauté internationale à l’encontre de l’État en 1992 et la partition de son
territoire. Ces circonstances étaient présentées par la défenderesse comme des événements
de force majeure qui auraient rendu l’exécution de ses obligations contractuelles impos¬
sible et auraient justifié la résolution du contrat.
Les effets des sanctions internationales sur les obligations des parties font désormais
l’objet de nombreuses sentences arbitrales, décisions des tribunaux étatiques et contribu¬
tions de la doctrine. Il est généralement admis que les litiges qui portent sur les effets des
sanctions sont arbitrables ('pour la Suisse, V. Trib. fédéral, 23 juin 1992, Fincantieri-
Cantieri Navali Italiani SpA d OtoMelara SpA: ATF 118 II 353; Bull. ASA, 1993, p. 58
; contra, pour l’Italie, CA Gênes, 7 mai 1994: Yearbook Commercial Arbitration, 1996, p.
—
594. P. Fouchard, E. Gaillard et B. Goldman, op. cit. p. 347 et les références en note 468;
pour la pratique arbitrale, V. Sentence de la Chambre d’arbitrage national et international
de Milan, 20 juill. 1992: Yearbook Commercial Arbitration, 1993, p. 80. — Sentence
rendue dans l’affaire n° 6719: JDI 1994, p. 1071, note J.-J. Amaldez). Il est également
reconnu qu’un embargo affectant le lieu d’exécution des obligations contractuelles peut, à
certaines conditions, exonérer une partie de ses obligations (P. Mayer, Mandatory rules of
—
law in international arbitration: Arb. Int. 1986, p. 272-281. P. Fouchard, E. Gaillardet
B. Goldman, op. cit. p. 849). On peut distinguer à cet égard deux catégories de situations:
les sanctions pourraient être la conséquence de règles impératives directement applicables
au litige en tant que lex causae, ou bien, indépendamment de la loi applicable, l’embargo
pourrait être invoqué en tant que circonstance de fait qui rend l’exécution des obligations
contractuelles impossible, c’est-à-dire en tant que cause de force majeure au sens de la loi
applicable au contrat (C. Brunner, Force Majeure and Hardship under General Contract
Principles: Exemption for Non-Performance in International Arbitration: Alphen aan den
Rijn, 2009, p. 273, 281). On est bien dans ce dernier cas d’espèce. L’arbitre unique rejeta
l’exception sur la base des circonstances de fait de l’affaire. Il se boma à constater que les
obligations contractuelles avaient connu un début d’exécution, que les prétentions de la
demanderesse étaient relatives au paiement des commissions correspondant aux factures
effectivement réglées et que les sanctions internationales avaient été levées, pour en
déduire qu’aucune cause de force majeure n’avait empêché l’exécution, du moins partielle,
des obligations contractuelles, et que la résolution du contrat n’était donc pas justifiée.
—
III. Le passage le plus innovateur de la sentence ici rapportée est relatif aux effets de
l’embargo sur les intérêts accordés aux parties.
Il ressort de la sentence que l’arbitre unique avait interrogé les parties sur la question de
savoir si les intérêts sur le sommes allouées devaient être pris en compte pendant la durée de
sanctions internationales décrétées à l’encontre de la Yougoslavie ou s’ils devaient être
neutralisés pendant la période d’embargo. L’arbitre constata que la question n’est réglée ni
par les différentes lois applicables ni par une règle générale ou par un usage du commerce
international, et que la solution devait donc être élaborée par lui-même sur la base des
circonstances spécifiques de l’affaire. Il considéra l’exigence de ne pas faire peser sur la
partie créditrice les conséquences financières de l’embargo et le principe qu’aucune partie

.
I
4
:

ne peut tirer profit de son défaut d’exécution. Il considéra également l’absence d’un taux
contractuel et l’existence d’une demande principale et d’une demande reconventionnelle,
ce qui justifiait que la question soit tranchée de la même manière pour les deux parties. Sur
la base de ces éléments, il retint un taux réduit par rapport aux demandes des parties, qu’il
considéra « raisonnable ».
En l’absence de principes généraux et de règles contraignantes, la démarche de l’arbitre
unique n’est guère surprenante. La doctrine et la pratique arbitrale reconnaissent depuis
longtemps que l’arbitre international jouit d’une grande liberté dans la fixation du taux
d’intérêt (Y. Derains, obs. sons la Sentence rendue dans l'affaire n° 7986: JDI 2002,
—
p. ¡078. S. Boyd, Interest for the late payment of money: Arb. Int. July 1985, p. 153.
— H. Schônle, Intérêts moratoires, intérêts compensatoires et dommages-intérêts de retard
en matière d 'arbitrage international. Etudes de droit international en l’honneur de Pierre
—
3
»
— — —
Lalive: Basel, Frankfurt am Main, 1993, p. 649-670. Sentence ad hoc Liamco c/Lybie,
Genève, 12 juill. 1977: Rev. arb. 1980. p. 132, spéc. p. 187. Sentence rendue dans
l'affaire «° 6219: JDI ¡990, p. 1047, obs. Y. Derains. Sentence rendue dans l'affaire
n° 9466. J.-J. Arnaldez, Y. Derains et D. Hascher, Recueil des Sentences Arbitrales CCI,
2001-2007, p. 106). La pratique arbitrale a souvent évoqué le caractère « raisonnable » du
taux appliqué, la base duquel a parfois été indiquée dans une règle du commerce
international ou dans un principe général de droit international (Sentence du Tribunal
irano-américain, Mc Cullough & Company, Inc. d Ministry of Post, Telegraph &
Telephone, 22 avr. 1986: Yearbook Commercial Arbitration, 1987, p. 321-322.
Sentence CIRDI Asian Agricultural Products Ltd c/ Democratic Socialist Republic of
Sri Lanka, 27 juin 1990: International Legal Materials, 1991, p. 625). La référence à la
—
nature raisonnable du taux n'entraîne aucunement l’exercice d’un pouvoir d’amiable com¬
positeur par l’arbitre (Y. Derains, obs. sous la Sentence n° 7986, op. cit.).
A. C.
—
Mots-Clés: Arbitrage international Chambre de commerce internationale Convention
d’arbitrage

*.
/
-V.... ?..
I, - Lex mercatoria.
—
Validité d’un contrat de cession de créance (oui).
_
Intérêt à se prévaloir d’une clause contractuelle destinée à protéger la partie
adverse (non). —
Pacta sunt servanda (oui). —
Simulation (non).
Présomption de compétence et professionnalisme des marchands
—
internationaux (oui). ——
Principe de la bonne foi (oui). —
Venire contra
—
factum proprium (oui). Nemo auditur propriam turpitudinem allegans (oui).
Abus de droit (oui). —
Participation dans l’arbitrage commercial
international d’un État souverain / régime spécial (non).
H. —
Équité. —
Divergences entre équité et droit (non).
arbitres pour agir en tant qu’amiable compositeurs (non).
— Pouvoir des
— —
III. Preuves. Inférences négatives.
du dommage à l’image (non).
— Absence de témoins. — Preuve
IV. — Frais de l’arbitrage.

— Pouvoir souverain des arbitres (oui).
Dans cette sentence, le Tribunal arbitral rejette notamment la prétention de la

Demanderesse A (le cédant) de ne pas donner d’effet juridique à un contrat de cession
—
de créance passé par celle-ci en faveur d’un tiers (C) (le cessionnaire) — sur la base
d’une clause contractuelle visant à protéger l'État Défendeur B (le débiteur cédé). Le
manque d'intérêt légitime de la Demanderesse A à se prévaloir de ladite clause donne
l'occasion au Tribunal arbitral de revisiter et d'appliquer les principes qui s'érigent en
piliers de la lex mercatoria.
L’affaire commentée a opposé une société de constructionitalienne A (Demanderesse) à
un État souverain B (défendeur).
Vers la fin 1987, l’État B a lancé un appel d’offres international pour l’adjudication d’un
marché dont l’objet était les travaux de génie civil nécessaires pour la construction d’un
barrage sis dans le territoire de ce pays (ci-après le << Marché »).
La Demanderesse A a été choisie à l’issue dudit appel d’offres.
Le Marché, dont plusieurs clauses provenaient du contrat-modèle FIDIC, a été signé en
1989, et prévoyait la soumission des litiges à un arbitrage CCI et l’application du droit de
l’État B, très proche du droit français.
L’exécution du Marché ne s’est heurtée à aucun obstacle particulier. Tel que le précise le
tribunal arbitral dans sa sentence, « fijes travaux ont été exécutés à la satisfaction [de B]
et le litige ne concerne pas le Marché lui-même, mais le paiement de certaines sommes dont
[A] se prétend créancière envers [B] au titre du Marché tout en admettant être par ailleurs
débitrice de quelques montants (626'535’757 francs CFA), et avoir reçu de [l’Assureur]
me indemnisation d'environ 4 milliards et demi de lires ».
Le litige, en effet, est plutôt né de la cession d’une créance résultant du Marché, cession
que la Demanderesse A aurait opérée en faveur de la société C. Le tribunal arbitral arésumé
ce litige comme suit:
—
« fpjar un contrat daté, du 5 juin 1998, intitulé « Cession de créance » dont la
—
nature, la validité et la portée sont aujourd'hui contestées entre les Parties la

société [A] (en liquidation volontaire depuis le 13 juillet 1995) a déclaré céder
irrévocablement “avec tous les effets contractuels et légaux"sa créance contre [B]
à la société [C] pour un prix global de 10'508’000'000 lires italiennes et
l’251’780’000 francs CFA. [C] s’engageait par ce contrat à respecter certains
délais de paiement et [A], de son côté, s’engageait « à communiquer la cession de
créance intervenue » au débiteur cédé. Enfin, il était précisé que « l 'acte de cession
de créance est réglementé par le Droit Suisse ».
À la suite de cette cession, [C] et [B] ont signé, le 11 juin 1999, un Protocole
d’ Accord visant à réduire la dette de l’État à « 34,28 % du montant de lat créance
initiale de [B] » moyennant des engagements de paiements pris par l ’Etat ». Le
15 mai 2000, le ministère de l’Économie et des Finances [de B] J’est vu signifier
par huissier une lettre de M. [X], liquidateur de [A], en date du 5 mais 2002, dans
laquelle ce dernier affirmait entre autres que la cession inten>enue (i) n’avait
jamais été approuvée par le ministère de l’Eau et (ii) était caduque du fait de la
non exécution par [C] de ses obligations. Il sommait ainsi le ministère « de ne
procéder à virer aucun argent à [C] sauf notre accord préalable et à non plus
considérer valable l'accord de cession avec cette société ».
Le 27 juillet 2000, le ministère de l’Economie et des Finances [de B] a informé
[A] que les paiements à [C] avaient déjà été exécutés et qu’en tout état de cause, il
considérait que la caducité de la cession invoquée ne lui était pas opposable ».
Une fois le litige exposé, le tribunal arbitral a poursuivi en résumant les positions
juridiques des parties. Quant aux arguments de la Demanderesse A, le tribunal arbitral a
écrit ce qui suit:
« [l]a position juridique de [A] est exposée comme suit dans Demande d 'arbitrage,
du 9 décembre 2002, au paragraphe 7:
« La Demanderesse est titulaire exclusive de l’intégralité de la créance et tout
montant doit être payé à elle-même. La Demanderesse est venue à ta connaissance
d ’une escroquerie effectuée, ou essayée, au détriment de la Défenderesse. L 'escro¬
querie a consisté dans le fait qu 'un tiers s’est présenté à la Défenderesse comme
soi-disant cessionnaire de la créance de la Demanderesse, même s 'il n’en avait ni
le droit ni les pouvoirs. Il paraît que la Défenderesse aurait payé au tiers une partie
de la créance. Si elle a agit comme ça, elle l 'a fait sans préalablement vérifier
auprès de la Demanderesse si une cession de créance avait été ou non effectuée en
faveur du tiers et nonobstant le Marché prohibait tout genre de cession sans le
consentement exprès et préalable de la Défenderesse, consentement que la Deman¬
deresse n'a jamais sollicité.
Naturellement, la Demanderesse n'a aucune responsabilité en relation avec cet
épisode. Au cas où le tiers ait été payé, c 'est effectivement la Défenderesse la Partie
qui doit en supporter les conséquences ».
Cette position juridique n’a pas changé pour l’essentiel au cours de la procédure
arbitrale, même si elle a été complétée ou précisée dans sa formulation au cours des
divers Mémoires et, surtout, si elle a été complétée ou nuancée dans les plaidoiries
finales du 10 juin 2004. Ainsi, dans le Mémoire de la Demanderesse du 18 septembre
2003 (pages 2 et 3) la Demanderesse indique qu'elle démontrera que:
« i) au titre principal la « cession de créance » entre [A] et [C], est nulle et sans
effet; la nullité est une conséquence de l 'incessibilité de la créance; la cession nulle
peut au plus être convertie, en droit suisse, en mandat d'encaissement;
ii) au titre subsidiaire, l 'accord de cession est un acte simulé couvrant la nature
réelle de l’accord, qui constitue en réalité un mandat d’encaissement, ainsi rejoig¬
nant la même conclusion sous i) ci-dessus;
iii) au titre ultérieurement subsidiaire, l 'efficacité de l 'accord en question était
assujettie à des conditions suspensives qui ne se sont pas avérées et par conséquent
la cession de créance n 'est jamais devenue efficace.

H

Les trois alternatives ci-dessus sont pleinement exhaustives. Quelle que soit
l 'alternative qu'il faut adopter, en aucun cas la cession de créance n'a pris d 'effets,
en aucun la créance n'a été transportée dans la propriété [de C],
Il en découle que le paiement effectué par le Ministre des Finances à Monsieur
[Y] [de C] n 'est en aucun cas opposable à la Demanderesse, qui demeure le
—
titulaire exclusif de la totalité de la créance envers la République. Cette créance
n ’ayant à ce jour pas été honorée par la Défenderesse, la Demanderesse a droit au
paiement ici réclamé ».
Enfin, dans sa plaidoirie du 10 juin 2004, le Conseil de la Demanderesse a très
clairement présenté la synthèse de la position juridique de la société [A] comme se
composant de trois « alternatives » (ou, mieux, trois « variantes ») la première (A),
la principale, étant fondée, comme indiqué précédemment, sur la nullité et l’inop¬
v-'
4. posabilité [à B] de la prétendue cession, la seconde (B), subsidiaire, étant fondée,
dans l'hypothèse d’une validité de l'accord de cession, sur l’abus de droit et la
mauvaise foi et les négligences [de B], et la dernière variante (C), sous-catégorie
de la précédente, étant fondée elle aussi sur l'abus de droit de la Défenderesse mais
U
sur la responsabilité partielle de cette dernière (compte tenu d’une certaine légèr¬
eté de [A]). En outre, la Demanderesse a fait valoir à titre subsidiaire certaines
considérations d’équité.
On reviendra plus loin sur ces variantes ou positions subsidiaires et il suffira
de constater que la position fondamentale ou principale de la Demanderesse est
restée la même du début de la procédure, soit de la Demande d'arbitrage du
9 décembre 2002, jusqu 'aux Conclusions finales du 10 juin 2004: la demande en
paiement dont est saisi le Tribunal arbitral est fondée, de toute évidence, sur la
thèse de la titularité exclusive par [A] de la totalité de la créance (cf. par exemple
la page 58 des Conclusions du 16 février 2004), titularité elle-même fondée sur
l’allégation de l'absence d'une véritable cession et/ou de la nullité et de l'inop¬
posabilité de la « cession de créance » dont s’est prévalu [B] pour payer la
société [C] ».
D’autre part, le tribunal arbitral a résumé la position de la défenderesse comme suit: .
« [njotamment dans son Mémoire récapitulatif [ ... ] et dans la Plaidoirie
finale du 10 juin 2004), [B] oppose que cette demande de paiement est irrecevable
en considération de la cession de créance du 5 juin 1998, parfaitement valable, [A]
ayant cédé valablement tous ses droits à [C], En effet, en vertu de l'article 9 de cette
Convention, [C] est devenue « la propriétaire unique et exclusive de la créan¬
ce ... et la seide légitimée ... à encaisser des sommes dues par le Ministère ».
[A] n'a dès lors « plus aucune qualité pour agir contre l 'Etat [B] » ».
Le tribunal arbitral a ensuite procédé à l’établissement et à la résolution des points
litigieux comme suit:
« [dje ce bref résumé de la position respective des Parties, ainsi que de l’Acte de
Mission qui a été approuvé par les Parties et transmis à la Cour de la CCI, il résulte
que la première tache qui incombe au Tribunal arbitral est de rechercher si le
Contrat liant [A] à [C] est bien, en droit suisse, une cession de créance et si elle est
valable ou nulle. A cet égard, il convient de citer les principaux documents perti¬
nents et, d’abord, la Convention du 5 juin 1998 entre [A] et [C],
« Analyse des argumentations respectives:
Selon cette Convention:
« [A], par le présent acte, cède, avec tous les effets contractuels et légaux,
irrévocablement sa créance (la « créance ») de 23.253.721.930 lires italiennes
et 2.014.282.152 francs CFA plus les intérêts de retard à partir du 1er mai 1998
jusqu 'à la date du paiement effectif, pour les titres visés au préambule [àl 'encontre
de l'État [B]/

La cession de la créance comprend la cession de tous les droits appartenant à

[A] relatifs au capital, aux intérêts, ata clauses et aux réclamations, et tous ceux de
façon générale relatifs au Contrat visé au préambule ».
Il n 'est pas nécessaire à ce stade de citer les clauses relatives au prix de ladite
cession de créance et aux obligations [de C].
En revanche il y a lieu de citer les extraits suivants de la Convention:
A l'article 9, il est précisé que
« la cession de la créance de [A] à l 'encontre du ministère est considérée comme
ayant effet et validité à l 'encontre des Parties et du Débiteur à partir de la date de
signature du présent Acte.
A compter de la signature du présent Acte, [C] sera par conséquent la proprié¬
taire unique et exclusive de la créance à l'encontre du Ministère et la seule légit¬
imée à entretenir des rapports avec le Ministère ou à encaisser des sommes dues
par ce dernier en vertu des titres visés au préambule. »
À l'article II
« [A] s’engage dans les formes et délais qui lui seront indiqués par [C] à
communiquer au ministère la cession de créance survenue. »
A l’article 15, il est stipulé que
«Le présent Acte est réglementé par le Droit suisse auquel les Parties devront se
référer pour tout problème d'interprétation, d’exécution, de résolution ou autre ».
Enfin, on rappellera que, selon l’article 16,
« Toutes les controverses dérivant de l'Acte [de cession de créance] seront
soumises exclusivement au Tribunal Arbitral conformément aux « International
Arbitration Rules » de la Chambre de Commerce Internationale ... ».
De même, à l 'article 67 des Conditions générales contractuelles, il est précisé
notamment:
« Tout litige ou différend à propos desquels la décision (éventuelle) de l'Ingé¬
nieur n 'est pas devenue définitive et obligatoire comme il a été dit doit être finale¬
ment réglé selon le Règlement de conciliation et d’arbitrage de la Chambre
internationale de commerce par un ou plusieurs arbitres nommés conformément
à ce Règlement. »
Quelque temps après la conclusion de ce Contrat, le liquidateur [A], M. [X] (qui
avait par ailleurs signé le contrat de cession de créance avec, du côté de la société
[C] M. [Z] (pièce B33 de la Défenderesse) rédigeait, le 22 juin 1998 (pièce B35 de
la Défenderesse) un texte intitulé « Attestation », ainsi conçu:
« Je soussigné, [X], représentant de [A], société de droit italien [ ... ] certifie
que [A] a cédé le 5 juin 1998 à [C], société de droit de Gibraltar, une créance à
l’encontre du ministère de l’Eau [de B] d’un montant de 23'253‘721'930 lires
italiennes et 2’014 '281 T 52 francs communauté financière africaine, représentant
le principal et intérêts jusqu 'au 30 avril 1998.
La cession inclut tous les droits et accessoires de la créance, et en particulier les
intérêts de retard dus à raison de cette créance depuis le 1er mai 1998.
La présente est faite pour valoir ce que de droit ».
Quelques jours plus tard, le 29 juin 1998, la Demanderesse envoyait à son
Avocat [à B] (Me [P]) une lettre sur son papier « [A] — in liquidazione »
(Pièce B36), lettre déclarant avoir « pour objet de vous informer qu’en date du
5 juin ¡998, notre société a cédé la créance sur la maîtrise d’ouvrage [...] et
l ‘Etat [B] » La même lettre décharge Me [P] de sa « mission de défense de nos
intérêts [à B] » et l'autorise à « remettre tous documents de la société [A] en votre
possession à la société [C], cessionnaire de notre créance et de nos droits sur la
maîtrise d’ouvrage [ ... )et de l’Etat [B] ». La lettre précise encore à Me [P] que «
en tant que cessionnaire de la créance, la société [C] » est « seule habilitée à
négocier auprès de [B] le [recouvrement] de sa créance et le prie, au nom de [A] «

"1"— vi .
_ MM'X—: i.-::--;

rfe vouloir informer [B] de Ia cession de la créance intervenue au profit de la
société [C], ainsi que le confirme la copie de l'attestation du 22 juin 1998 ».
On notera encore, sans s’y arrêter à ce stade, que la Défenderesse s'est vu
signifier, à la demande [de C], la cession de créance le 3 juillet 1998 par un
acte d'huissier (cf les pièces B37 et B38 de la Défenderesse, ainsi que le «Mémoire
récapitulatif » de cette dernière p. 23).
Aux citations qui précèdent des passages pertinents des pièces soumises au
Tribunal, il y a lieu d'ajouter enfin le passage suivant du préambule du texte
intitulé « cession de créance » du 5 juin 1998 (préambule qui, selon l’article 1er
« fait partie intégrante et essentielle du Contrat ») à la lettre E où il est dit:
« [A] en vue de la cession de la créance, garantit:
a) que la créance est vraie et réelle et qu 'elle n 'est pas contestée par le Débit¬
eur;
b) qu 'il n'existe aucun empêchement contractuel ni légal à la cession à des tiers
de la créance;
c) que la créance n'a jamais été cédée auparavant;
d) qu'aucune déchéance n'est survenue et qu’ aucune nullité ou inexécution
rendant la créance en tout ou partie inexigible n’a été invoquée. ».
Au regard de ces divers textes, à première vue parfaitement explicites, et en
particulier de l’Acte dit «cession de créance» du 5 juin 1998, ily a lieu d’examiner
les positions prises, en fait et en droit, par la Demanderesse au cours de la Pro¬
cédure arbitrale, écrite et orale.
Selon les témoins requis par [A], M. [Q] et M. [X], le Liquidateur (ainsi que
selon la Note en réponse de la Demanderes edu 18 avril 2003, p. 6), c’est [C], en la
personne d’un certain M. [Y], qui aurait approché [A] en février 1998, d'abord
téléphoniquement, puis lors d’une visite à Milan, en se présentant comme parti¬
culièrement bien placé pour obtenir le règlement delà créance de [A] à l 'égard [de
B] et comme parfaitement informé des détails concernant le Marché, ainsi que bien
introduit vu ses relations amicales et professionnelles avec les autorités locales.
Si le Tribunal arbitral a regretté que la Demanderesse n 'ait pas jugé utile de
requérir le témoignage de M. [Y], /ras plus d'ailleurs que la Défenderesse (encore
que cette dernière n'y avait pas le même intérêt), il peut accepter comme vraisembl¬
able l’allégation que c'est bien [C] qui aurait pris l’initiative de proposer ses
services à [A], Selon le témoin [X], c'est M. [Y] qui a proposé de conclure un
contrat de cession, dont son Avocat, Me [R] (dont le témoignage n'a pas davantage
été sollicité) aurait préparé le texte, un texte accepté par [A] avec quelques mod¬
ifications seulement et, semble-t-il, assez facilement; et c 'est à la demande du même
M. [Y], qui l'a rédigée, que l’Attestation de la cession de créance a été signée à
Milan le 22 juin 1998 par le témoin [X], sur le papier à lettres de [A], afin de
permettre au représentant [de C] de montrer [à B] qu 'il pouvait agir.
Selon le témoin [X] et le témoin [Q], il se serait agi de « textes purement internes »,
bien que nécessaires, à M. [Y], pour éventuellement montrer à des tiers qu'il pouvait
négocier. Selon [Q], le Contrat de cession de créance était un simple « document de
façade », proposé on l'a vu par Me [R] et accepté par [A] avec quelques corrections
ou retouches. Questionné par le Tribunal sur les risques impliqués par de tels textes,
le témoin [X] a répondu que cette cession ne comportait, à son avis, aucun risque,
« car nous restions créanciers ».
Questionné par le Conseil de la Demanderesse, le témoin [X] a expliqué que,
pour lui, la créance [A] n 'avait qu'une valeur moyenne en comparaison des autres
créances, dont certaines beaucoup plus importantes, dont il devait s’occuper comme
liquidateur (de sociétés). Il a reconnu ignorer les conditions de validité d'une cession
de créance en droit suisse et n 'avoir pas soumis le texte proposé par [C] à un juriste,

pareille vérification lui paraissant inutile dès lors que le texte avait pour lui une «
valeur uniquement interne » et qu 'il lui paraissait inconcevable que [B] puisse payer
[C] sans consulter préalablement [AJ.
De son côté, le témoin [Q] a affirmé que, dans les négociations avec [C], l'acte
de cession proposé lui avait paru impossible, à cause de l’article 3 du Marché,
article contenant à son avis l'interdiction d'une telle cession à moins d’un accord
préalable du Maître de l'ouvrage. Le même témoin n'a pas déclaré (pas plus que M.
[X]) avoir jugé bon ou nécessaire de vérifier auprès d’un juriste la réalité d'une
telle interdiction. Il s'est dit avoir été rassuré par le fait que, dans la cession de
créance, une date butoir à fin 1999 avait été prévue et que M. [Y] et sa société
étaient obligés de rendre compte régulièrement de l’avancement de leurs efforts
tendant au remboursement par la Défenderesse. Sur ce dernier point, il y a lieu
aussi de noter les réponses données par M. [X] aux questions du Conseil de la
Défenderesse (tant par écrit, par exemple dans le Mémoire [de B], p. 35, ainsi que
lors de l'audience du 16 décembre 2003).
Sur le point de savoir quels renseignements avaient été pris par [A] sur la
solvabilité et la personnalité de M. [Y], les réponses ont été fort vagues; il semble
que [A] ait été suffisamment mis en confiance par la connaissance manifestée par
le représentant [de C], tant des Autorités locales [de B] que du contenu du dossier.
Quant à la prétendue obligation [de C] de rendre compte régulièrement à [AJ de ses
démarches, les réponses ont été également fort peu précises. Le témoin [X] a
déclaré avoir téléphoné à plusieurs reprises à M. [YJ, qui répondait que le
remboursement était « difficile ». Le témoin s’est contenté de ces réponses et a
estimé que, après 1998, s 'il n 'avait pas écrit à M. [Y], c 'est que cela n 'était pas
nécessaire (« non c 'era bisogno »).
De manière analogue, le témoin [Q] a déclaré avoir été « informé régulièrement
par M. [YJ » que cela « suivait son cours » et il a déclaré que M. [Y] avait « informé
périodiquement M. [X\ jusqu'à fin 1999 ». Il a précisé que « depuis cette date, nous
n 'avons plus eu de nouvelles et avons encore attendu un peu, puis après avons
considéré que [A] n 'était plus liée par la cession (sic) ».
« Il résulte des écritures et des témoignages produits par la Demanderesse que,
à l 'en croire, la « cession de créance » n‘en serait en réalité pas une malgré
l'Attestation et les confirmations ultérieures, mais une sorte de simple mandat
de paiement, à valeur « “ purement interne » entre [C] et [A], bien qu’exprimé
dans le langage d’une cession à la demande de M. [Y], afin d’être plus crédible à
l'égard du débiteur qu'était l’État [BJ. Ni M. [X] ni M. [QJ n 'ont estimé que cette
manière de faire présenterait des risques pour [AJ. Ce n 'est qu 'à un stade ultérieur
qu 'est apparue l 'idée que M. [Y] aurait pu tromper la grande confiance mise en lui
par [A], voire même se rendre coupable d'une « escroquerie ».
Sur ce point, il y a lieu de relever un certain flou dans l 'argumentation de la
Demanderesse qui, dans sa Demande d 'arbitrage du 9 décembre 2002, p. 10, parle
d 'une « escroquerie effectuée, ou essayée au détriment de la Défenderesse » (et non
pas de [A]). Selon la Demande d’arbitrage, « l 'escroquerie a consisté dans le fait
qu 'un tiers, représentant de [C], s 'est présenté à la Défenderesse comme soi-disant
cessionnaire de la créance de la Demanderesse, même s 'il n’en avait ni le droit ni
les pouvoirs ».
Si l 'affirmation peut sembler quelque peu singulière de la part de [A], signataire
tant de l 'Acte du 5 juin 1998 intitulé « cession de créance » que de l 'Attestation du
22 juin 1998, elle a été reprise, complétée ou nuancée plus ou moins clairement par
la suite. Ainsi, dans son témoignage lors des audiences des 15 et 16 décembre 2003,
M. [X], rendant compte d’une rencontre en avril 2001 avec les représentants de
[B], a prétendu que ces derniers auraient reconnu « qu 'il s’agissait d’une escro¬
querie dont nous avions été victimes » (sic), ce par quoi il semble comprendre soit

—
ii
I
■\

les deux Parties au présent litige, soit [A] elle-même. C'est d’ailleurs dans
ce contexte qu’il a été demandé aux témoins, sans obtenir aucune réponse
—
précise pourquoi, si elle s'estimait lésée par les agissements de M. [Y], elle
n 'avait jamais procédé à une mise en demeure, ni songé à une action en justice ou
une action arbitrale, ni déposé une plainte pénale contre ce dernier ou contre la
société [C].
En résumé, et sur le terrain des faits, le comportement affiché par [A] à l’égard
de la société [C] et de M. [Y], apparaît difficile à comprendre. Le Conseil de la
Partie défenderesse n 'a pas manqué à ce propos de relever la « très grande dis¬
crétion du liquidateur », et une imprudence susceptible de mettre en cause sa
responsabilité. Il s 'est demandé qui étaient exactement les actionnaires de [C],
et enfin si M. [X], ou [A] SpA, étaient liés par cette société et avait un intérêt à
ménager cette dernière.
:-:s Ces questions et les diverses interrogations écrites et orales formulées par la
Défenderesse [voir par exemple son Mémoire récapitulatif, p. 44-45] n’ont pas
suscité de réponses. Le Tribunal arbitral n 'est pas en mesure de répondre à ce
genre de questions ni de suppléer par des hypothèses à l'absence de témoignages
ou d’autres preuves sur ces divers aspects de fait du présent litige. Un autre point
qui a fait l'objet d'une allégation, non assortie de preuve, est le non-paiement par
[C] à [A] de ses obligations selon le contrat de Cession de créance. Il y a lieu de
relever en passant que, dans l 'hypothèse où il serait établi que [C], le cessionnaire,
ne s’est pas acquitté, ou pas acquitté complètement de ses obligations envers le
cédant [A], le Tribunal Arbitral devrait non seulement s 'étonner de la passivité ou
de la mansuétude de la Demanderesse envers le débiteur [C], mais constater qu 'il
n’a pas été expliqué ou démontré en quoi l 'inexécution de cette obligation serait, vu
les termes du Contrat du 5 juin 1998, opposable à [B], ou affecterait la validité de
la cession.
Sous réserve d’éventuelles considérations d’équité qui seront évoquées à propos
des thèses subsidiaires de la Partie demanderesse, le Tribunal ne peut que se fonder
sur les pièces du dossier, et en particulier sur les documents signés par les Parties,
qu’il convient maintenant d'analyser du point de vue juridique.
— — —
La thèse principale de la Demanderesse celle de la nullité de la cession de
créance et de son inopposabilité se heurte d'emblée à un obstacle, à première
vue majeur. Comment les représentants de [A], et en particidier son liquidateur M.
[X], peuvent-ils prétendre, en face des dispositions contractuelles dénuées d’ambi-
guttés d’un texte signé par eux et intitulé « cession de créance » (texte au surplus
confirmé gar une Attestation également sans ambiguités), que ce texte ne dit pas ce
qu'il dit, qu 'il n 'était qu'un « document de façade », à « valeur purement interne »
entre [A] et [C] (et ceci bien que destiné, de leur propre aveu, à permettre à M. [Y]
d’agir envers des tiers, ce qui signifie en négociant avec la Défenderesse) ? En
outre, à en croire la Demande d'Arbitrage du 9 décembre 2002 (p. 10), [B] aurait
été victime d 'une tentative d‘escroquerie émanant d 'un « tiers » se présentant à elle
« comme soi-disant cessionnaire (sic) de la créance de la Demanderesse »" et ceci
sans droits ni pouvoirs. Or, cette tentative, à la supposer établie, n’aurait été
possible que grâce, précisément, à ces « documents de façade »; c’est-à-dire
grâce à la complicité active et attx signatures répétées des représentants de [A].
Malgré ces obstacles à première vue majeurs compte tenu des textes qui ont été
cités plus haut, les représentants de la Demanderesse ont plaidé avec beaucoup
d’insistance, et non sans talent et courage, la thèse selon laquelle « malgré son
intitulé, l 'acte ne constituerait pas une véritable cession de créance » et, en réalité,
« dissimule un mandat » (Mémoire après enquêtes du 18 février 2004, n° 31, p. 43).
Dans le même Mémoire, la Demanderesse allègue « que l'intention des Parties
n 'était pas de transporter la créance litigieuse en propriété de [C] » - ceci en dépit
Reprinted &om the Clunet 817

I
de plusieurs dispositions du Contrat du 5 juin 1998, et, en particulier, de son article

9, selon lequel « à compter de la signature du présent acte, [C] sera par conséquent
la propriétaire unique et exclusive de la créance à l'encontre du ministère ».
La contradiction flagrante existant entre d’une part le texte clair du Contrat,
dans son titre comme dans ses diverses dispositions, ainsi que les autres textes
signés par la Demanderesse, et, d'autre part, les arguments aujourd'hui soutenus
par elle à l'appui de sa demande contre [B], suffit-elle à justifier le rejet de la
demande comme téméraire et mal fondée, et ceci par exemple au nom du principe
de la bonne foi et de l'adage « non venire contra factum proprium » ?
Le Tribunal arbitral estime devoir aller au-delà de cette constatation et exam¬
iner de plus près certains au moins des arguments juridiques invoqués par [A], en
particulier:
a) L 'argument selon lequel la réelle et commune intention des Parties aurait été
de « dissimuler » en réalité, sous un langage emprunté à la cession de créance du
droit suisse, un simple « mandat de paiement » ou une institution analogue, ceci
résultant « d 'accords autres que ceux qui résultent de l 'A cte de cession » (Mémoire
après enquêtes, n° 138, p. 46), c’est-à-dire d’une contre-lettre, thèse critiquée par
la Défenderesse dans son « Mémoire récapitulatif » du 24 mars 2004, n° 35, p. 64 et
s. (voir à ce sujet Mémoire après enquêtes de la Demanderesse, p. 48 et s.).
b) L 'argument selon lequel la cession de créance serait nulle et de nul effet, en
raison de l 'absence du consentement préalable du débiteur cédé. Dans ce contexte,
il y aura lieu de considérer le parti que la Demanderesse s'efforce de tirer d 'une
Consultation obtenue par elle de deux éminents juristes suisses, le Professeur [K]
et Me [L] de Neuchâtel.
Le premier argument de la Demanderesse, selon lequel l'intention des Parties
n’était pas de procéder à une véritable « cession de créance », mais seulement
de « simuler » cette dernière ou de « dissimuler » un mandat, c'est-à-dire de « conclure
un accord complètement différent », s 'appuie sur une attestation du ¡2 décembre 2003
de l’avocat [R], avocat de M. [Y] de [C], auteur du projet d’acte de cession de
créance sur les instructions de M. [Y] ( projet accepté par M. [X], on l 'a vu, moyen¬
nant quelques modifications ou retouches). Selon le témoignage de M. [X], il ne
semble pas que les quelques modifications apportées par [A] aient substantielle¬
ment modifié la structure ou la nature du projet de texte, si bien qu'il est surprenant
de lire (Mémoire après enquêtes de la Demanderesse, no ¡35) l’affirmation selon
laquelle "l 'acte est donc le résultat inévitablement contradictoire des intentions
poursuivies par les Parties à travers l 'opération en question De même, on voit mal
dans ces affirmations la preuve, ou même un indice quelconque, du fait qu'il s 'agir¬
ait en réalité d'un « acte atypique au contenu mixte et peu cohérent qui était destiné
à satisfaire aux exigences et buts des Parties » (même Mémoire, p. 46, «° ¡35).
Le même Mémoire de la Demanderesse s’appuie sur les dépositions de MM. [X]
et [Q] (résumées plus haut) et fait état du fait, allégué mais nullement prouvé, que,
pendant les négociations, M. [Y] se serait à son tour déclaré « conscient desdites
limites et aurait suggéré la rédaction de l’Acte dans une forme qui aurait permis de
—
les respecter » (?) affirmation au demeurant peu compréhensible, dès lors que,
selon les mêmes dépositions, c'est précisément M. [Y] qui a suggéré la forme de la
cession de créance (voir aussi même Mémoire n° 137).
La Demanderesse cite enfin, comme « l 'aspect le plus intéressant » aux fins de
son argumentation le fait que Me [R] aurait « toujours pensé qu 'il y avait d 'autres
accords » entre [A] et [C] sur « le mode de paiement à [A], par rapport à ce que
[C] aurait encaissé » de [B]. La Demanderesse semble en conclure (même Mém¬
oire no 138) que « l 'existence d 'accords autres que ceux qui résultent de l 'Acte de
cession » a donc été indiquée « de façon suffisamment claire (sic) par les Parties
qui intervenaient à l’Acte et a été confirmée par les preuves disponibles ». De

l 'avis du Tribunal arbitral, ces divers affirmations et arguments ne résistent pasà
l’examen. Ils n 'ont de toutes façons guère ou pas de force probante, dès lors que
la Demanderesse n’a jugé utile de produire comme témoins ni M. [Y] ni M. [R],
Enfin, dans l'hypothèse même où l'existence d’« autres accords » ou de contre-
lettres entre [A] et [C] aurait été établie, elles ne sauraient de toute évidence être
—
opposables au débiteur cédé selon l 'acte de cession an acte dont les disposi¬
tions, citées plus haut et dénuées d'ambiguités, on l’a dit déjà, ne sauraient être
contredites ou affectées à l 'égard des tiers qui l 'ignorent par une contre-lettre quel¬
conque. On observera à propos de l'affirmation selon laquelle « les nombreuses
dispositions contenues dans l'Acte du 5 juin 1998 qui ne sont pas typiques d'une
cession de créance, ou qui sont incompatibles avec un tel Acte (sic) constituent
autant d’indices de la nature réelle de l’Acte » (Mémoire après enquêtes nc 140),
que cette affirmation, elleaussi, ne résiste pas à l’examen, etest d'ailleurs totalement
contredite par l’Avis de droit produit par la Demanderesse elle-même.
Une semble pas, au demeurant, que la Demanderesse soit très convaincue par la
-, thèse que, par surabondance peut-être, elle a cru devoir ajouter à la thèse princi¬
pale de la nullité de la cession de créance. En effet, l 'Avis de droit qu 'elle a produit
et dont elle se réclame, de MM. [KJ et [L], sur le droit suisse applicable, contient la
déclaration suivante:
« Il nous paraît que si la validité de l'acte est contestée, et doit faire l'objet d'un
examen détaillé, sa nature en revanche ne prête pas à discussion: il s'agit, selon la
volonté commune des parties, d’une cession de créance »
Et les auteurs d’ajouter, avec pleine raison de l’avis du Tribunal arbitral,
« Une interprétation selon le principe de la confiance aboutirait au même
résultat: si l'on examine l’accord signé et que l’on tient compte des termes utilisés
ainsi que de l’ensemble des circonstances dans lesquelles les déclarations de
volonté ont été émises, il est difficile de voir autre chose dans l’accord qu’une
cession de créance au sens juridique du terme. »
Selon la Demanderesse, « la nullité est une conséquence de l’incessibilité de la
créance » ; la cession nulle peut au plus être convertie, en droit suisse, en mandat
d’encaissement. Cette thèse est fondée sur l’article 3 du Marché, et elle s’appuie
notamment sur l’Avis de droit déjà cité de MM. [KJ et [LJ.
L’article 3 des Conditions Particulières du Marché dispose, sous le titre «
cession et sous-traitance » ce qui suit:
« L’entrepreneur, sauf consentement écrit préalable du maître d’ouvrage, n’a
pas le droit de céder tout ou partie du marché ni un intérêt dans celui-ci, ni une
créance qui en résulte; il peut cependant opérer une cession valant nantissement au
profit de ses banquiers, de toute somme due ou à devoir au titre du présent marché,
après avoir avisé le maître d’ouvrage. »
En l’absence de consentement écrit préalable du maître d’ouvrage à la cession
litigieuse, la Demanderesse soutient et conclut (voir Mémoire après enquêtes du
16 février 2004, p. 58) à ce que le Tribunal arbitral, à litre principal statue que:
« l’Acte dénommé « cession de créance » de [A] à [C] est nulle (sic) et sans effet,
et que le paiement fait par l’État (de [B]) à [C] est donc inopposable à [A] ». Selon
l’article 164, alinéa 1, du Code des Obligations suisse, « le créancier peut céder
son droit à un tiers sans le consentement du débiteur, à moins que la cession soit
interdite par la loi, la convention ou la nature de l’affaire ».
Ainsi que l’observent avec raison MM. [K] et [L] (p. 5), « la créance étant dans
notre cas issue d’un contrat soumis au droit de [B], dont on retiendra ici l 'équivalence
avec le droit français, c’est ce droit qu’il convient de consulter pour déterminer si la
créance en cause pouvait ou non être cédée, et le cas échéant à quelles conditions ».
Il appartiendrait donc à la Demanderesse d’établir que, selon le droit applica¬
ble à sa créance à l’égard de [B], c'est-à-dire le droit de [B] inspiré du droit

français, la créance en question était incessible en raison, on l'a vu, de l’article 3

des conditions particulières du Marché citées plus haut.
De l’avis du Tribunal arbitral, la Demanderesse n 'a pas établi que, en vertu du
droit applicable, l 'article 3 en question a bien, comme elle le prétend, pour con¬
séquence l’incessibilité et donc la nullité absolue de la cession de créance. Il n’a
pas été davantage démontré qu'il existerait, en droit de [B], des dispositions
légales rendant la créance résultant d'un marché public incessible faute d'accord
préalable de l’administration contractante.
La finalité évidente de l'article 3 du Marché, qui limite la liberté de ¡’entre¬
preneur, est la protection du maître de l’ouvrage, et non pas la protection de
l’entrepreneur. Ainsi que l’observe la Défenderesse dans son Mémoire récapitu¬
latif, l’article 3 en question « institue un agrément préalable et ne constitue pas une
clause de prohibition absolue » et a été rédigé « dans le seul intérêt du maître
d'ouvrage ».
Cette constatation vaut aussi bien pour la cession du Marché lui-même du
barrage (dont il n’est pas question en l’espèce) que de la cession d'une simple
créance, postérieurement à l’exécution du Marché. On notera en passant à ce
propos que le texte de l’article 3 fait allusion aussi à la cession d’une créance
résultant du Marché, mais permet sans consentement préalable du maître une
cession valant nantissement au profit de ses banquiers. Il ne s'agit donc aucune¬
ment d'une nullité absolue au cas de défaut de consentement. Quoi qu’il en soit et
dans tous les cas, il est clair, comme le montre en outre l’article 63, alinéa 1, du
Marché concernant la sanction, que l’exigence du consentement préalable du
maître a été édictée dans le seul intérêt de ce dernier, auquel il revient seul de
décider s 'il lui convient de consentir à une cession, préalablement ou postérieure¬
ment, de s 'y opposer ou de la ratifier.
Il n‘a pas été allégué que le droit de [B] diffère du droit suisse à cet égard; de
toute façon, du point de vue de ce dernier droit, applicable à la cession, on doit se
demander quel pouvait être l’intérêt de [A], créancier cédant, de faire valoir
l’absence de consentement préalable, ou l’absence de ratification par [B] à son
contrat de cession avec [C]. Force est de conclure que la Demanderesse n’a pas
d 'intérêt légitime à se prévaloir de cet article 3 du Marché, ni d 'une façon gén¬
érale, ni surtout dans les circonstances de l’espèce. Les termes du contrat de
cession, ainsi que ceux de l 'Attestation subséquente sont parfaitement éloquents
à cet égard, en effet, ainsi qu’on l’a dit déjà.
a) [A] a garanti, notamment, qit ’il n’existait « aucun empêchement contractuel
ni légal à la cession à des tiers de la créance », et « qu’aucune nullité ou
inexécution rendant la créance en tout ou partie inexigible n ’a été invoquée ». En
—
outre, [A] qui s’est engagé à « communiquer la cession de créance survenue »
à [B] (lequel ne s’y est nullement opposé mais, au contraire, en a confirmé la
validité et les effets par actes concluants, en payant [C]ÿ - a précisé (article 9)
que la cession de créance avait « effet et validité à l ’encontre des Parties et du
Débiteur à partir de la date de signature » et elle a affirmé enfin, sans la moindre
réserve, que [C] sera « la propriétaire unique et exclusive de la créance à
l’encontre du ministère et la seule légitimée à entretenir des rapports avec le
ministère ou à encaisser . . . ».
Dans ces conditions, il est patent que la Demanderesse n’a ni établi ni rendu
vraisemblable un intérêt légitime quelconque à se prévaloir d’une absence de
consentement préalable. Et ceci d’autant moins qu'elle a déclaré elle-même à
plusieurs reprises n’avoir jamais demandé le consentement de [B], une abstention
surprenante de la pari d’un créancier cédant qui serait convaincu de la nécessité
de ce consentement pour que la cession soit valable. En prétendant utiliser à son
profit les seuls droits du maître de l’ouvrage qui découlent de l’article 3 du

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—
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Marché, et bénéficier de la non-réalisation, qui lui est due, d'une prétendue
condition de validité de la cession, elle commet un abus de droit.
On peut citer à cet égard un passage pertinent de la Consultation du Professeur
[K] (p. 10) où l’on peut lire ce qui suit:
« Le Tribunal fédéral a eu l 'occasion de se prononcer sur la question de l 'abus
de droit en relation avec une cession de créance (arrêt du Tribunal fédéral du
23 janvier 1962, ATF 88 II 18, JT ¡962 1 300). Il a en l’occurrence jugé que pour
qu’il y ait abus de droit, il ne suffit pas qu’une partie conteste la validité d’un acte
juridique entaché d’un vice de forme: il faut encore qu’en raison des circonstances
spéciales, sa contestation apparaisse manifestement contraire aux règles de la
bonne foi, tel étant notamment le cas de celui qui invoque un vice de forme
qu’il a dolosivement provoqué. En l’occurrence, le créancier avait annoncé au
s: débiteur qu’il avait cédé sa créance. Or cette cession était nulle, puisqu’elle n’avait
pas été revêtue de la forme écrite ... ».
Ces considérations s’appliquent parfaitement à la présente espèce (où il est sans
importance que le consentement préalable au sens de l’article 3 soit qualifié de
t question de forme ou de question de substance).
En l’occurrence, comme dans l’arrêt cité du 23 janvier 1962, le créancier avait
« annoncé au débiteur qu’il avait cédé sa créance » et, tout en s’abstenant de
rechercher le consentement de ce dernier, avait affirmé à multiples reprises que
la cession était parfaitement valable et de plein effet. Indépendamment même
d’absence d’intérêt légitime à se prévaloir de ce « vice de forme », il y aurait
abus manifeste du créancier cédant à contester la validité d’un acte juridique et à
tenter de tirer profit, contrairement à ses affirmations répétées, d’une situation qu‘il
a lui-même provoquée, et ceci pour « exiger du débiteur qu’il s’exécute à nouveau ».
Il suffira d’observer pour en terminer avec la Consultation de MM. [K] et [L],
qu 'une assez large part de ses autres développements ou bien sont fondés sur des
allégations dénuées de preuves de la Demanderesse, ou bien sont sans pertinence
vu les constatations auxquelles est parvenu jusqu’ici le Tribunal arbitral.
La Demanderesse s’est plainte à diverses reprises, de manière plus indirecte que
précise, de ce que [C] ne lui aurait pas payé le prix convenu aux articles 4 et 5 de
la Cession de créance: elle a mentionné par exemple n’avoir pas « reçu le prix de la
cession ... ».
On a déjà dit que la preuve de ce non-paiement n’avait pas été apportée mais, à
supposer qu 'elle ait été produite, on voit mal les conséquences juridiques qui
devraient en résulter pour [B], non partie au contrat de cession de créance,
laquelle est, à l’évidence, une res inter alios acta, un acte pour lequel, la Deman¬
deresse Ta souligné à plusieurs reprises, son consentement n’a pas été sollicité.
En tout état de cause, à supposer que le cessionnaire [C] n’ait pas exécuté ses
obligations résultant de la cession de créance [ . . , ], il appartenait, ou appartient,
à [A] d’agir par toutes voies appropriées, civiles ou pénales contre [C], et non pas
de tenter d’obtenir satisfaction contre la Défenderesse.
On a constaté plus haut que [A] a préféré choisir ce que l’on peut appeler la voie
de la passivité envers [C],pour des raisons que les témoignages de MM. [X] et [Q]
n’ont guère éclairées et qui pourraient être dues à ce que la Demanderesse décrit
dans son dernier Mémoire (du 16 février 2004), Mémoire après enquêtes) comme
« ¡’existence d’accords autres que ceux qui résultent de l’Acte de cession », (n° 138).
La Demanderesse soutient (Mémoire après enquêtes, n° 134, p. 45) que « mal¬
gré son intitulé l’acte [la cession de créance] ne constitue pas une véritable cession
de créance » ... et elle tente de persuader le Tribunal arbitral que l’acte échappe
à une définition légale précise (n° 135) et même (au n° 140, p. 47) que « les
nombreuses dispositions contenues dans l’acte du 5 juin 1998, qui ne sont pas
typiques d’une cession de créance ou qui sont carrément incompatibles avec un

tel acte (sic) constituent autant d’indices de la nature réelle de l’acte ». Ces
affirmations au demeurant nullement démontrées, sont étonnantes de la part
d'une Partie, qui, simultanément, a produit l’Avis de droit de MM. [K] et [L],
avis qui conclu de la manière la plus ferme en sens contraire.
Quelques brèves considérations suffiront enfin à disposer des arguments sub¬
sidiaires ou "alternatifs” présentés par la Demanderesse.
A. Selon l’Acte de mission (n° 7), la position de la Demanderesse consisterait à
fonder « en outre son droit à récupérer la créance entière sur les reconnaissances
de dette faites par les Représentants de [B] lors des réunions tenues en 2001 et 2002
avec les Représentants de [A], où la Défenderesse a offert à [A] sa disponibilité à
une transaction et même à un partage du recouvrement des sommes mal payées par
elle à [C], ainsi admettant que [A] était encore son créancier même après le
paiement irrégulier effectué en faveur de [C] en 1999 ».
La Demanderesse s’est en effet employée, par écrit et oralement, à prétendre
que, dans des échanges de correspondance et dans desr conversations obtenues par
ses représentants avec des responsables de [B], cet État aurait pratiquement pro¬
mis d'examiner favorablement ses revendications et aurait même, par là, reconnu
l’inopposabilité de la cession de créance, et sa propre position préférable à celle de
[C], Ainsi, dans son dernier Mémoire (Mémoire après enquête du 16 février 2004),
la Demanderesse invoque notamment l’absence de [A] aux réunions de négocia¬
tion entre M. [Y] et la Défenderesse, son absence de consultation, les « raisons
réelles pour lesquelles [A] ne fut pas interpellée », l’absence de « vérification »
faite par l 'État quant à la « légitimation de [C] à agir en qualité en titulaire de la
créance litigieuse », les « fausses justifications de l 'État », et même la « mauvais foi
de l'État » qui, « en favorisant [C] . . . était conscient de nuire à [A] », les
« modalités du paiement à [C] » ainsi que des « réunions entre [A] et le Gouverne¬
ment en 2001 ».
De l’avis du Tribunal arbitral, aucune de ces allégations ou affirmations n’a été
prouvée, ni, selon toute vraisemblance, ne pouvait l’être compte tenu des constata¬
tions faites jusqu 'ici, et, en particulier, vu les textes dénués d’ambiguité signés par
[A] et l’attitude de cette dernière société à l 'égard de [C]. Tl est donc superflu de s'y
arrêter. Il est également superflu de commenter les longs développements con¬
sacrés par les Parties, soit aux négociations entre la Défenderesse et [C], soit
aux efforts faits par [A] pour persuader [B] qu'elle était demeurée sa seule créan¬
—
cière, soit aux quelques témoignages produits à ce sujet toutes ces questions
apparaissant comme dénuées de pertinence et non susceptibles d'affecter en quoi
que ce soit les conclusions juridiques retenues plus haut sur la base des textes et
documents versés au dossier.
Sur un point de détail cependant, une précision mérite peut-être d'être apportée.
La Demanderesse, après avoir obtenu des premières fins de non-recevoir du Gou¬
vernement de [B ]face à ses tardives tentatives d’obtenir paiement, s'est efforcée de
tirer parti d 'une lettre du 14 janvier 1999 signée à son avis par un M [T], Directeur
général du Marché, et ayant pour destinataire le ministre de l'Economie et des
Finances (pièce T46), lettre versée au débat en la forme d’une copie certifiée
conforme à l’original établi le 20 juin 2003. À son avis, ladite lettre témoignerait
« que les principales administrations de [B] impliquées dans l’affaire étaient
pleinement conscientes quant à l'incessibilité de la créance sans consultation de
[A] et sans consentement préalable du maître de l’ouvrage. Le ministère des
Finances y était invité à prendre contact avec [A] avant tout paiement afin d’éviter
d'éventuel dérapage » (Mémoire du 18 septembre 2003, p. 50, n° 35).
L 'authenticité de cette lettre a été fortement contestée par la Défenderesse,
selon laquelle il ne s’agirait que d’un faux et d’« une pure invention créée spé¬
cialement pour servir les intérêts de [A] » (Mémoire récapitulatif, p. 29).

•• -"i:

Les pièces déposées de part et d 'autre et les témoignages produits ne permettent
en aucune manière au Tribunal arbitral de se prononcer sur le caractère soit de
pièce authentique soit de faux de ce document, mais la controverse ne revêt qu'une
faible pertinence. En effet, à le supposer authentique, le document en question
émane au surplus d’un responsable de [B] disparu dans des circonstances mystér¬
ieuses et qui n'a pu témoigner — et il est fort douteux qu’il ait pu engager la
Défenderesse contrairement à plusieurs autres prises de position des Autorités
de [B] ; il ne saurait donc suffire à renverser les conclusions qui précèdent.
Les développements consacrés par la Demanderesse à ses tentatives de négo¬
ciation et à ses conversations avec des représentants de [B], de même que les
considérations d’ordre économique relatives ata ressources de la Défenderesse
et au montant des concessions réciproques qui auraient été faites entre [C] et la
Défenderesse, pour aboutir au Protocole d’accord, n’appellent pas d’analyses ou
?ÿ de commentaires particuliers, vu les constatations qui précèdent sur l’existence et
la validité de la cession de créance. Ces développements n'ont été assortis
d’aucune preuve pertinente susceptible de modifier lesdites conclusions juridiques.
Du côté de la Demanderesse, les témoignages produits, en l’absence de M. [E]
représentant de [A] à [B], se ramènent à des affirmations de M. [X] et des échos de
seconde main. Quant aux témoins produits par la Partie Défenderesse, ils confir¬
ment au contraire les fins de non-recevoir qui semblent avoir été constamment
opposées par la Défenderesse aux réclamations de [A].
Selon ce que la Demanderesse a appelé sa deuxième « alternative » ou position
subsidiaire, dans l’hypothèse où la cession de créance serait pleinement valide
(comme l’a reconnu on l’a vu le Professeur [K] dans sa consultation), il n’en
resterait pas moins que [B] « aurait abusé de son droit » et agi contrairement à
—
la bonne foi alors que, selon l’article 1134 du Code civil de [B] « les conventions
légalement formées tiennent lieu de lois à ceux qui les ont faites. Elles doivent être
exécutées de bonne foi ». Or, ces deux articles s’appliquent au Marché et « le
paiement en faveur de [C] » aurait été « effectué en violation manifeste du Marché
et de la loi de [B] » et, « par conséquent, ne peut pas être opposé à [A] qui demeure
la seule titulaire de la créance » (Note en réponse du 18 avril 2003, p. 37-38).
Ici aussi, l’argumentation de la Demanderesse paraît se heurter à première vue
à un obstacle juridique: la validité même de la cession de créance et le texte de ses
dispositions selon lesquelles, on l’a vu, il y a cession irrévocable « avec tous les
effets contractuels et légaux » et [C] est devenue « la propriétaire unique et
exclusive de la créance à l’encontre du Ministère », « seule légitimée à entretenir
des rapports » avec ce dernier et à encaisser les sommes dues par ce dernier. On
voit mal a priori, cela étant, en quoi la Défenderesse aurait bien pu « abuser de son
droit » en exécutant son obligation de débiteur cédé dans les mains du cession¬
naire. En revanche, l’abus de droit pourrait se concevoir infiniment plus aisément
dans l’hypothèse précédente, soit la thèse principale de [A] selon laquelle la ces¬
sion de créance était mdle et de nul effet.
Le paiement fait entre les mains de [C] apparaît ainsi clairement comme
l’exécution d’une obligation et non pas comme l'exercice d’un droit (et encore
moins comme son abus).
Reste cependant T'argument selon lequel [B] aurait dû vérifier la réalité et la
validité du consentement de [A] et à tout le moins consulter cette dernière société, sa
créancière initiale. Il s’agit aussi de la thèse que l’on peut appeler « délictuelle »,
selon laquelle la Défenderesse aurait soit excédé les limites de son droit de
payer, soit révélé son « intention de mare » en obtenant une transaction très
favorable, à l’issue de ses négociations avec M. [Y], de la société [C]. Le Protocole
d’accord du 11 juin 1999, consacrant une transaction, conclu sans la moindre
considtation de [A], révélerait à tout le moins selon cette thèse une « légèreté

blâmable », sinon l’intention de nuire, contredisant par là l’interdiction de l'abus

de droit, les usages du commerce et les principes généraux du droit.
Ces thèses ne résistent pas à l’examen.
Sur le plan des faits, d’abord, la transaction consentie finalement par le Créan-
cier cessionnaire [C], dont on doit présumer qu’il était capable de défendre ses
intérêts commerciaux, à l’égal de [A], et était de toute manière considéré par cette
dernière comme « seule légitimée » à cette négociation, n’a rien d’extraordinaire, à
première vue, compte tenu aussi de la situation financière de [B] et de son crédit sur
le plan international. Rien n’indique que [A] aurait été à même d’obtenir davan¬
tage et, au surplus, par les termes mêmes de la cession de créance, et notamment
par le prix fixé pour cette cession, elle s’interdisait de critiquer le résultat obtenu
par [C].
D’autre part, il va de soi que les responsables de la Défenderesse ne faisaient
que s’acquitter de leurs obligations de service public en s’efforçant d’obtenir de
[C] une réduction de la dette. En tout état de cause, [B] ne pouvait se libérer de sa
dette qu’entre les mains de [C] et ceci en conséquence directe des décisions de la
Demanderesse et des textes clairs signés par cette dernière.
En résumé, pour une pluralité de raisons, les arguments de la Demanderesse
concernant la légèreté ou l’abus de [B] ou le caractère non libératoire de ces
paiements transactionnels ne peuvent qu 'être rejetés.
A défaut de démontrer que [B] aurait soit reconnu le caractère non libératoire
de son paiement de la créance, réduite par transaction, à [C] ou aurait reconnu en
quelques manières les réclamations ou demandes; la Demanderesse a fait valoir,
de manière subsidiaire, que l’équité commanderait au Tribunal arbitral d’admettre
une certaine obligation de paiement. Dans ce contexte, tout en concédant l’exis¬
tence d’une certaine « légèreté » de [A] envers [C], le Conseil de la Demanderesse
a estimé que les responsables de [B] auraient eux aussi fait preuve de négligence ou
de légèreté, par exemple en omettant de consulter [A] ou de l’associer aux négo¬
ciations qui, avec M. [Y], devaient aboutir à une transaction très avantageuse pour
la Défenderesse.
Il suffira de constater ici que le Tribunal arbitral a reçu pour mission de juger en
droit et n’a pas reçu des Parties les Pouvoirs d’amiable compositeur ou de juge
d’équité.
A supposer même qu‘il en soit autrement, le Tribunal ne discerne pas en quoi
l’équité pourrait affecter les conclusions juridiques énoncées plus haut. En parti¬
culier, on voit mal comment [A], cédant d’une créance contre l’Étal défendeur
dans les termes et les conditions que l’on sait, pourrait reprocher à cet Etat de
s’être fondé sur la situation et les textes juridiques ainsi créés et prétendre de lui à
une compensation quelconque, au nom de l’équité, parce que le cessionnaire [C]
aurait commis une « escroquerie » ou ne l’aurait pas payé, ce qui n’a du reste pas
été prouvé.
L 'argument subsidiaire tiré de l’équité ne saurait donc être retenu.
En résumé, dans ses conclusions finales (Mémoire après enquêtes, du J 6 février
2004, p. 58-59), la Demanderesse a soumis au Tribunal arbitral cinq demandes (1 à 5)
« à titre principal » et quatre Demandes (6 à 9) «à titre subsidiaire, si [C] a encaissé
comme "bon mandataire ».
// résulte des motifs qui précèdent que ces neuf Demandes ne peuvent qu’être
rejetées.
Il en est de même des Conclusions 11 et 12, concernant les frais de la procédure
et les frais d’arbitrage.
En vertu de l'article 31.3 du Règlement d’arbitrage de la Cour internationale
d arbitrage de la CCI, le Tribunal décide que les frais du présent arbitrage seront
supportés par la Partie qui succombe ».
824 Reprinted from the Chinet

-“I-I---- 1 J
■i
Dans le dispositif de la sentence, le tribunal arbitral décide, malgré le principe posé ci-
dessus, de condamner la Demanderesse A à ne supporter que les frais CCI de l’arbitrage
(honoraires, frais des arbitres et honoraires de la CCI) et de laisser les frais d’avocat (la
portion la plus importante des frais de l’arbitrage, 82 % de la totalité des frais selon une
étude de la CCI — cf. E. Jolivet, L’intérêt de recourir à me institution d’arbitrage,
l'exemple de la CCI, contribution au Liber Amicorum Robert Briner, Ouvrage collectif
sous la dir. de G. Aksen, K.-H. Bôckstiegel, M. Mustill, P. M. Patocchi, A. M. Whitesell:
ICC Pub. 693, 2005, p. 425. — Techniques pour maîtriser le temps et les coûts dans
l'arbitrage, Un rapport de la Commission de l'arbitrage de la CCI, Publication CCI «°
843, 2008, p. Il) à la charge de chacune des parties.
« La Demande reconventionnelle de [B]
■sa La Défenderesse a formé une demande reconventionnelle concluant au paie¬
V ment « d’une somme qui ne soit pas inférieure à la somme de I '500'000 Euros »,
une somme dont le montant n 'a pas été justifié ou documenté de manière plus
précise. Elle motive cette demande dans son « Mémoire récapitulatif du
24 mars 2004, p. 81-83) par les « pressions » multipliées par [A] à l’encontre
du Gouvernement de [B], ses accusations « dénuées de tout fondement », ses «
accusations » portées à l'encontre de [B] et notamment de son ancien ministre des
finances » qui ont mis en doute « la bonne foi et l'honnêteté des représentants de
l’Etat », avec « une légèreté blâmable qu’il est demandé au Tribunal arbitral de
sanctionner par sa condamnation à des dommages et intérêts ».
La Défenderesse a fait valoir aussi que « depuis sa réapparition en février 2000,
sous l'impulsion de M. [X], [A] a multiplié les pressions et les accusations intol¬
érables, obligeant par là l’État défendeur, pour la défense de ses intérêts, à
« l’engagement de frais importants », non spécifiés, du fait du temps passé à la
recherche de documents anciens et à la compréhension du processus de cession de
créance initié par [A] ».
De son côté, la Demanderesse a jugé « tout à fait surprenante la demande
reconventionnelle, estimant qu’il ne résultait" aucune perte d'image » et aucune
atteinte au crédit, du fait de la procédure d’arbitrage engagée par [A] (Note en
réponse du 18 avril 2003, p. 39-40).
Le Tribunal arbitral estime que, si la présente procédure arbitrale a pu sans
doute entraîner pour la Défenderesse la mobilisation de différents services et de
différents ministères, pour la « gestion » du litige (voir p. 20 la Réponse), la réalité
d'une atteinte au crédit et celle d’un préjudice matériel ou moral, n’a pas été
établie par la Défenderesse, et ceci d’autant moins que cette dernière a obtenu
gain de cause par la présente sentence.
Dans ces conditions, et pour les motifs qui précèdent, la demande reconven¬
tionnelle doit être rejetée et la conclusion n° 10 de la Demanderesse doit être
admise ».
NOTE. I. — La Sentence transcrite ci-avant nous apporte un nouvel exemple de la
création (insidieuse) d’un droit international (privé) matériel (¡ex mercatoria) par les arbi¬
tres du commerce international (V. par ex. E. Gaillard, Aspects philosophiques du droit de
l’arbitrage international: Martinus, 2008, p. 152 à 162. — V. également E. Jolivet, La
jurisprudence arbitrale de la CCI et la lex mercatoria: Cah. arb. 2002, p. 253 à 260). En
effet, même si le tribunal arbitral rappelle que les droits applicables en l’espèce sont le droit
de l’État B, d’inspiration française, et le droit suisse (applicable au contrat de cession de
créance), il ne se contente pas de citer des dispositions desdits droits mais préfère, chaque
fois qu’il doit donner une hase juridique à son raisonnement, se référer à des principes
appartenant, d’après certain auteurs, à la lex mercatoria (V. par ex. E. Loquin, Où en est la
lex mercatoria ? in Études Ph. Kahn: CREDIMI-Litec, 2000).

La méthode employée par le tribunal arbitral décrite ci-dessus est critiquable (P. Mayer,
—
Reflections on the International Arbitrator’s Duty to Apply the Law The 2000 freshfields
Lecture: 17 ARB INT’L 235, 238 (2001)). Nous croyons, comme Pierre Mayer, que les
arbitres ont le devoir de trancher le litige qui leur a été confié conformément au droit
applicable. La généralité des principes évoqués par le tribunal arbitral pour fonder juridi¬
quement sa décision suppose, néanmoins, que, tout au moins indirectement, celui-ci a
nécessairement fait référence au droit de l’État B, de souche française, et au droit suisse
(V., par ex., à l’égard du droit français, F. Terré et al., Les obligations: Dalloz, 9 éd. 2005,
§439 et s.). Le tribunal arbitral, en effet, fonde sa décision sur les principes suivants:
(i) l’adage pacta sunt servanda; (ii) la présomption de compétence et de professionnalisme
des marchands internationaux; et (iii) le principe de la bonne foi. Sans qu’il ne soit opportun
de revenir sur la controverse théorique désormais dépassée qu’a suscitée la lex mercatoria,
l’inutilité de la méthode peut être ici soulignée, nul ne doutant de l’existence de tels
principes au sein des droits choisis par les Parties. En revanche, les conclusions auxquelles
le tribunal arbitral parvient, du fait de l’application de ces principes, méritent d’être
décrites.
Il est tout d’abord certain, pour le tribunal arbitral, qu’un contrat international dont le
langage est dépourvu d’ambiguïté et passé par des commerçants internationaux doit pro¬
duire tous les effets juridiques résultant d’une force obligatoire plus ou moins sacro-sainte,
Pacta sunt servanda (V. C. civ. français, art. 1134).
En l’espèce, le tribunal arbitral, d’une part, rejette les allégations de la demanderesse A
concernant l’invalidité du Contrat de Cession de créance en raison de la clarté de son
langage. Le tribunal arbitral confirme que ladite Cession est valable. L’une des questions
que le tribunal arbitral se pose est particulièrement parlante à cet égard: « [c]omment les
représentants de [A], et en particidier son liquidateur M. [X], peuvent-ils prétendre, en
face des dispositions contractuelles dénuées d'ambiguités d’un texte signé par eux et
intitulé "Cession de créance” (texte au surplus confirmé par une Attestation également
sans ambiguités), que ce texte ne dit pas ce qu 'il dit, qu 'il n‘était qu’un "document de
façade", à "valeur purement interne” entre [A] et [C] (et ceci bien que destiné, de leur
propre aveu, à permettre à M. [Y] d'agir envers des tiers, ce qui signifie en négociant avec
la Défenderesse) ? ».
Par ailleurs, le tribunal arbitral, étant donné la clarté du contrat de cession de créance,
écarte la théorie de la demanderesse A selon laquelle ledit contrat ne serait qu’une sim¬
ulation. Pour le tribunal, en effet, ignorer le texte clair d’un contrat sous prétexte d’une
réalité diverse plus ou moins cachée n’est admissible que si la partie qui soulève la sim¬
ulation en apporte la preuve. En l’espèce, cette preuve n’a pas été apportée (pour un
exemple de sentence où une telle démonstration a été considérée comme réalisée,
V. Sentence rendue dans l’affaire CCI n° 10671: JDI 2006, n° 4, p. 1417 et s.).
La lecture de la sentence suggère ensuite, même si ce principe n’y est pas nommé
expressément, que les marchands internationaux sont présumés être des professionnels
compétents. La population de la societas mercatorum n’a pas d’incapables. Ce principe,
reconnu maintes fois par les arbitres CCI (V. Sentence rendue dans l 'affaire CCI n° 1512 de
¡971: JDI 1974, p. 905 et s. — Sentence rendue dans l’affaire CCI n° 2438 de 1975: JDI
1976, p. 969 et s.— Sentence rendue dans l’affaire CCIn° 3380 de 1980, JDI 1981, pp. 928
et s.; Sentence rendue dans l’affaire CCI n° 5346 de 1988: JDI 1991, p. 1080 et s.), est
exprimé dans la sentence à deux titres.
Premièrement, ce principe semble sous-tendre le renforcement, dans la lex mercatoria,
de la force obligatoire du contrat international. L’adage pacta s uní servanda doit, en effet,
être appliqué avec davantage de rigueur aux contrats internationaux. Il est certainement très
difficile en matière commercial internationale d’échapper à la lettre d’un contrat afin de lui
substituer la volonté réelle et commune plus ou moins cachée des parties. La demanderesse
A n’a pas réussi en l’espèce.

■
■
— ■
•- -
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'T-:

Deuxièmement, le tribunal arbitral s’étonne, avec raison, que la demanderesse A, sup¬
posée être un marchand professionnel et compétent, n’ait pas demandé à un juriste de
réviser le projet de cession qui lui a été proposé par la société C. Selon le tribunal arbitral,
« [Questionné par le Conseil de la Demanderesse, le témoin [X] a expliqué que, pour lui, la
créance de [A] n 'avait qu’une valeur moyenne en comparaison des autres créances, dont
certaines beaucoup plus importantes, dont il devait s'occuper comme liquidateur (de
sociétés). Il a reconnu ignorer les conditions de validité d’une cession de créance en
droit suisse et n’avoir pas soumis le texte proposé par [C] à un juriste, pareille vérification
lui paraissant inutile dès lors que le texte avait pour lui une “valeur uniquement interne’’
et qu’il lui paraissait inconcevable que [B] puisse payer [C] sans consulter préalablement
[A] ».
C’est enfin la motivation du tribunal arbitral découlant du principe de la bonne foi qui
-£ soulève le plus d’intérêt. Le cœur du raisonnement du tribunal arbitral repose, en effet, sur
r ledit principe et trois de ses corollaires les plus célèbres (V. également Sentence CCI
rendue dans l’affaire «° 10671: JDI 2006, n° 4, p. 1443 et s.).
Le tribunal arbitral considère d’abord que le comportement de la demanderesse A est,
quant à la validité du Contrat de cession de créance, contradictoire. Il se demande, en effet,
si « [l]a contradiction flagrante existant entre d 'une part le texte clair du Contrat, dans son
titre comme dans ses diverses dispositions, ainsi que les autres textes signés par la
Demanderesse, et, d’autre part, les arguments aujourd’hui soutenus par elle à l'appui
de sa demande contre [B], suffit-elle à justifier le rejet de la demande comme téméraire
et mal fondée, et ceci par exemple au nom du principe de la bonne foi et de l'adage “non
venire contra factum proprium”? ». Une réponse affirmative devrait, à notre avis, être
apportée à cette question. Il est, néanmoins, important de souligner, en passant, que le
tribunal arbitral ne se contente pas d’y répondre mais, dans un souci d’exhaustivité et
conscient de son devoir de persuader la partie perdante d’accepter sa décision ('sur ce
devoir, V. E. Silva-Romero, Wittgenstein et la philosophie du droit: PUF 2002, n° 245.
p. 309 et s.), traite tous les arguments soulevés par les parties dans l’arbitrage.
Le tribunal arbitral applique ensuite, même s’il le fait implicitement, le principe de
l’interdiction de se prévaloir de sa propre turpitude (nemo auditur propriam turpitudinem
allegans). La sentence, en effet, dispose quV [i]/y a lieu de relever en passant que, dans
l'hypothèse où il serait établi que [C], le cessionnaire, ne s'est pas acquitté, ou pas acquitté
complètement de ses obligations envers le cédant [A], le Tribunal arbitral devrait non
seulement s’étonner de la passivité ou de la mansuétude de la Demanderesse envers le
débiteur [C], mais constater qu 'il n'a pas été expliqué ou démontré en quoi l 'inexécution de
cette obligation serait, vu les termes du Contrat du 5 juin 1998, opposable à [B], ou
affecterait la validité de la cession ».
Le tribunal arbitral développe enfin des observations très intéressantes, sur la base des
opinions juridiques des experts présentées par la demanderesse A, sur la théorie de l’abus
de droit. La demanderesse, en effet, prétendait se prévaloir d’une clause contractuelle qui,
non sans ambiguïté, semblait exiger que toute cession devait être précédée par l’approba¬
tion de l’État B. Le tribunal arbitral suit le bon sens. Pour lui, la demanderesse A n’aurait
pas d’intérêt légitime à se prévaloir d’une clause dont le but est de protéger l’État B,
débiteur cédé. Il conclut que, « [djans ces conditions, il est patent que la Demanderesse
n’a ni établi ni rendu vraisemblable un intérêt légitime quelconque à se prévaloir d'une
absence de consentement préalable. Et ceci d 'autant moins qu‘elle a déclaré elle-même à
plusieurs reprises n 'avoir jamais demandé le consentement de [B], une abstention surpre¬
nante de la part d’un créancier cédant qui serait convaincu de la nécessité de ce consentement
pour que la cession soit valable. En prétendant utiliser à son profit les seuls droits du maître
de l'ouvrage qui découlent de l’article 3 du Marché, et bénéficier de la non-réalisation,
qui lui est due, d'une prétendue condition de validité de la cession, elle commet un abus
de droit ».

Le tribunal arbitral applique ainsi la lex mercatoria dans une affaire impliquant une
personne morale de droit public, l’Etat souverain B. Personne ne s’en plaint. Cette
sentence, en revanche, nous rappelle (ce que la mode et les errements de l’arbitrage en
matière ¿’investissements nous font parfois oublier) que l’Etat (i) agit souvent en qualité de
commerçant international et, de ce fait, (ii) se soumet à l’empire du droit du commerce
international (V. E. Silva-Romero, L 'arbitrage de la chambre de commerce internationale
et les contrats d'Etat: Bull. CCI, vol. 13, n° 1, 2002), (iii) participe sans problème à un
arbitrage international et (iv) peut en sortir victorieux.
—
II. Au regard de son devoir de persuasion, le tribunal arbitral, parmi tous les argu¬
ments soulevés par la demanderesse A et analysés, se penche sur certains d’entre eux basés
sur l’équité. Les idées de justice et d’équité, en effet, se trouvent toujours derrière le droit
positif et, plus particulièrement, derrière le principe de la bonne foi et ses corollaires
commentés ci-avant
Le tribunal arbitral, néanmoins, est de l’avis que la demanderesse A invoque en dernier
ressort l’équité afin de trouver une solution qui lui soit favorable au-delà du droit. La
stratégie était, désespérée. Le tribunal la réfute en soutenant qu'<r [i]/ suffira de constater
ici que le Tribunal arbitral a reçu pour mission de juger en droit et n 'a pas reçu des Parties
les Pouvoirs d'amiable compositeur ou de juge d 'équité. [ . . . ] A supposer même qu 'il en
soit autrement, le Tribunal ne discerne pas en quoi l'équité pourrait affecter les conclu¬
sions juridiques énoncées plus haut. En particulier, on voit mal comment [A], cédant d 'une
créance contre l'Etat défendeur dans les termes et les conditions que l'on sait, pourrait
reprocher à cet Etat de s 'être fondé sur la situation et les textes juridiques ainsi créés et
prétendre de lui à une compensation quelconque, au nom de l 'équité, parce que le ces¬
sionnaire [C] aurait commis une "escroquerie" ou ne l'aurait pas payé, ce qui n’a du reste
pas été prouvé ».
Le tribunal nous rappelle que le droit et l’équité ne sont pas des termes antonymes. Bien
au contraire, l’équité, ainsi que l’a très bien résumé Aristote (Aristote, Ethique à
Nicomaque, V, 14, 1137 b, 10-30, Paris, Vrin, 1994) et que le suggère le tribunal arbitral,
vient compléter et corriger le droit lorsque, du fait de son inévitable formulation générale,
son application à un cas d’espèce pourrait entraîner une injustice. Dans l’affaire commen¬
tée, toutefois, aucune injustice de la sorte n’a été prouvée. Si la méthode consistant à
s’appuyer sur des principes issus de la 1er mercatoria était critiquable, celle du recours
à l’équité apparaît plus juste. Loin d’être inutile, la référence à l’équité, comprise comme
un complément et correctif du droit applicable, permet une souplesse que tant les arbitres
que les parties recherchent.
III.— Il est rare de lire dans les commentaires des sentences CCI des considérations
portant sur l’analyse des faits et des preuves par les arbitres CCI. L’analyse des preuves par
le tribunal arbitral dans cette affaire est remarquable et mérite d’être signalée, à titre
d’illustration, à deux égards.
Le tribunal arbitral, en particulier, fait une analyse méticuleuse de la preuve par témoins
et s’étonne du fait que certains protagonistes n’aient pas été appelés à témoigner. Le
tribunal arbitral, par exemple, affirme que, « [s]/ le Tribunal arbitral a regretté que la
Demanderesse n 'ait pas jugé utile de requérir le témoignage de M. [Y ],pas plus d’ailleurs
que la Défenderesse (encore que cette dernière n 'y avait pas le même intérêt), il peut
accepter comme vraisemblable l’allégation que c'est bien [C] qui aurait pris l'initiative
de proposer ses services à [A]. Selon le témoin [X], c’est M. [Y] qui a proposé de conclure
un contrat de cession, dont son Avocat, Me [R] (dont le témoignage n 'a pas davantage été
sollicité) aurait préparé le texte, un texte accepté par [A] avec quelques modifications
seulement et, semble-t-il, assez facilement; et c 'est à la demande du même M. [Y], qui l 'a
rédigée, que l'Attestation de la cession de créance a été signée à Milan le 22 juin 1998 par
le témoin [X], sur le papier à lettres de [A], afin de permettre au représentant [de C] de
828 Reprinted from the Clunel

'I Vj'.'rVr
-
montrer [à B] qu 'il pouvait agir ». De même que cela arrive lorsque l’une des parties refuse
de produire des documents dont la production a pourtant été ordonnée par le tribunal
arbitral, l’absence d’un témoin peut elle aussi entraîner des inférences négatives de la
part du tribunal arbitral.
Par ailleurs, le tribunal arbitral rappelle très clairement le principe et les effets juridiques
de la charge de la preuve lorsqu’il rejette la demande reconventionnelle de l’État B. « Le
Tribunal arbitral estime que, si la présente procédure arbitrale a pu sans doute entraîner
pour la Défenderesse la mobilisation de différents services et de différents ministères”, pour
la “ gestion" du litige (voir p. 20 de la Réponse), la réalité dune atteinte au crédit et celle
d’un préjudice matériel ou moral, n'a pas été établie par la Défenderesse, et ceci d'autant
moins que cette dernière a obtenu gain de cause par la présente sentence. [ . . . ] Dans ces
conditions, et pour les motifs qui précèdent, la demande reconventionnelle doit être rejetée
et la conclusion n° 10 de la Demanderesse doit être admise ». Si ce principe n’est pas
contesté en doctrine, les allégations sans preuve sont néanmoins fréquentes en pratique.
Un tel rappel n’est donc pas inopportun.
IV. — La seule décision de la sentence qui pourrait paraître critiquable est celle portant
sur les frais de l’arbitrage.
D’une part, le tribunal arbitral se trompe lorsqu’il énonce le principe de répartition de
frais de l’arbitrage dans l’arbitrage CCI. La sentence, en effet, établit que, « [e]« vertu de
l’art. 31.3 du Règlement d'arbitrage de la Cour internationale d’arbitrage de la CCI, le
Tribunal décide que les frais du présent arbitrage seront supportés par la Partie qui
succombe ». L’article 31(3) du Règlement d’arbitrage de la CCI énonce que « [l]n sentence
finale du tribunal arbitral liquide les frais de l 'arbitrage et décide à laquelle des parties le
paiement en incombe ou dans quelle proportion ils sont partagés entre elles » et n’apporte
donc pas d’indications quant aux règles qu’un tribunal arbitral CCI devrait suivre pour
répartir les frais de l’arbitrage entre les parties. De son côté, la jurisprudence arbitrale CCI a
plutôt toujours soutenu que les arbitres détiennent une totale discrétion à l’égard de leur
décision quant aux coûts de la procédure arbitrale (V. note E. Silva-Romero sous Sentence
——
rendue dans l'affaire CCI ri1 12827: JDI 2009, p. 1376ets., spéc.IV,p. 1391 à 1392, V.
également Sentence rendue dans l’affaire CCI «° 11426: JDI 2006, p. 1443 et s. plus
généralement, E. Jolivet et L. Marquis, Les frais de l 'arbitrage. Chronique de jurispru¬
dence arbitrale de la Chambre de commerce internationale: Cahiers arb. n° 2009/4; Gaz.
Pal. 13-15 déc. 2009, na 347 à 349, p. 15 et s.).
D’autre part, étant donné le fait que la demanderesse A perd totalement l’affaire, le
tribunal arbitral aurait peut-être dû la condamner à supporter tous les frais de la procédure,
y compris les frais d’avocat. Le tribunal arbitral, toutefois, condamne la demanderesse à
supporter tous les frais CCI de l’arbitrage mais laisse à la charge de chacune des parties ses
propres frais d’avocat. Il est ainsi inévitable de penser que, du fait de la supposée escro¬
querie qui planait sur cette affaire, le tribunal arbitral a voulu suggérer, par le biais de son
refus à faire payer à la demanderesse A les frais d’avocat de l’État B, que nul n’était
vraiment totalement exempt de faute en l’espèce, probable illustration d’une application
de l'équité telle que mentionnée ci-avant.
E. S.-R.
Mercatoria
— Chambre de commerce internationale — Lex
Reprinted from the CJunet 829

Sentence fínate rendue dans l’affaire CCI n° 12290 en 2005 (original en langue
française)
I.
—
Tribunal arbitral.
Compromis. —
Compétence. — Nullité du contrat.
Accord devant des juridictions étatiques.
— —
IL —Droit applicable. —
Droit français. —
Convention de Vienne sur la
vente de marchandises de 1980. —
Applicabilité (non). Attente des parties.—
HI. — Contrat. — Droit français. — Cause licite. — Intention des parties.
IV. — Corruption. —
Contrariété au Droit français (oui).
l’Ordre public transnational (oui).
— Contrariété à
V.
— Corruption. -Preuve.
VI.- Contrat. — Nullité. —
— Indices de corruption.
Réparation et restitutions.
Cette sentence, rendue par un tribunal arbitral siégeant à Paris, en application du

—
droit français, porte sur un litige opposant la demanderesse la filiale (constituée dans
un « paradis fiscal ») d’une société prestataire de services dans le domaine de l’explo¬
ration et l’exploitation de ressources naturelles —
à un Etat africain. A l'origine de
l'affaire se trouve un ensemble assez complexe de contrats interdépendants, amende¬
ments et protocoles dont le but déclaré était l’acquisition de pétrole par la demanderesse
et l’assistance à l'Etat dans la réalisation de son Programme d’ajustement structurel
(« PAS »). Les opérations entre la demanderesse et l’Etat sont étroitement liées à
d’autres accords entre, la multinationale X et l’Etat d’une part et, d'autre part, entre
cette multinationale et la demanderesse. Toutefois, seuls la demanderesse et l'Etat étai¬
ent parties à l 'arbitrage.
Face à cette toile de parties et de contrats, on pourrait soupçonner d 'énormes difficultés
pour la mise en place de l 'arbitrage, surtout lorsque l’on constate que les seuls contrats qui
comportaient une clause d’arbitrage étaient ceux signés entre l’Etat et X (notamment, le
Contrat d’Achat). Ni le Protocole ni le Contrat de services (concernant le PAS) spécifiques
entre la demanderesse et l’Etat ne prévoyaient la soumission à l'arbitrage.
La mise en œuvre de l’arbitrage n 'a pas, néanmoins, donné lieu à de problèmes majeurs.
En effet, la demanderesse a initialement entamé une action en justice aux Etats-Unis.
Lorsqu’elle a été rejetée et un recours intenté en appel, la demanderesse a initié un
arbitrage devant la CCI (essentiellement sur la base du Protocole, le Contrat de services
et leur corrélation avec le Contrat d’achat). Après avoir contesté la compétence du tribunal
arbitral, l'Etat et la demanderesse se sont mis d’accord pour se désister de la procédure
aux États-Unis et soumettre leurs différends à l’arbitrage CCI initié par la demanderesse.
Au fond, la demanderesse allègue qu’en vertu des accords passés entre les parties et X,
la demanderesse s'engageait à payer à l’Etat le montant de 15 millions de dollars et à
fournir les services relatifs au Programme d’ajustement structurel en échange de 5 millions
de barils de pétrole. La demanderesse prétend avoir payé le prix prévu mais ne pas awir
reçu la totalité du pétrole convenu. Pour sa part, l’Etat, dénonçant l’opération objet de
l’arbitrage comme étant entachée de corruption, demande aux arbitres de constater le
caractère illicite du Protocole et de prononcer sa nullité ainsi que la restitution réciproque
des prestations exécutées ce qui, aux dires de l’Etat, laissait un solde en sa faveur qu’il a
souhaité réclamer à titre reconventionnel.

L’analyse du tribunal arbitral

Avant d’aborder le fond du litige, le tribunal considère important d’envisager successi¬
vement deux questions préliminaires relatives à sa compétence et au droit applicable.
Tout d’abord, concernant la compétence, et même si l’exception d’incompétence a été
rapidement écartée par le compromis (passé devant les juridictions américaines), le tribunal
nous explique:
#[...] dans la mesure où [l’État] a fait valoir que le contrat devrait être déclaré nul et
non avenu pour cause d'illicéité, le Tribunal arbitral examinera les conséquences que cette
prétendue nullité pourrait avoir sur sa compétence.
Dans la célèbre sentence Lagergren de 1963 (affaire CCI N° 1110), l’arbitre unique a
refusé de se reconnaître compétent après avoir jugé que le contrat avait une cause illicite et
l 'avoir déclaré nul et non avenu. Cependant, une pareille opinion ne peut plus être soutenue.
En effet, le principe de l'indépendance de la clause compromissoire (en vertu duquel
l’invalidité d’un contrat n’affecte pas la clause arbitrale) est largement accepté et est
consacré par le droit français (Civ 1, 30 septembre 1993 (1994) Rev. de l'Arb., p. 359).
Ce principe a été reconnu en particulier en ce qui concerne les contrats déclarés nuis pour
contrariété à l'ordre public ou aux bonnes mœurs (affaire CCI n° 6848, Annuaire, 1994, p.
124; CCI N° 3916; BOCKSTIEGEL, Public Policy and Arbitrability (Ordre Public et
Arbitrabilité), ICCA Congress Séries N° 3 (1987) p. 177 et suivantes, pp. 201-202). Ce
principe devrait s'appliquer à un compromis conclu à l 'issue d 'un litige, par exemple sous
forme d’un'Stipulated Order of Dismissal’, sauf le cas où la cause de l'invalidité du contrat
affecterait également le compromis. Le compromis n’est pas affecté par l’invalidité du
contrat. »
En relation avec le droit applicable et particulièrement la Convention des Nations Unies
sur la vente internationale de marchandises, le Tribunal considère:
« Étant donné que le fond de la présente espèce est régi par le droit français, la
Convention des Nations Unies sur la vente internationale de marchandises conclue
le 11 avril 1980 à Vienne (ci-après la « CVIM ») portant sur les contrats de vente
internationaux s 'appliquerait pour autant que les parties ne l ' aient pas exclue. En
faisant référence au droit français, les parties ont choisi un droit très proche de
celui [de l’État partie à l’arbitrage] lequel n 'a pas ratifié la CVIM. Il n 'a pas été
démontré au Tribunal arbitral que [l’État], en sa qualité d‘État-Partie, et [la
demanderesse], en sa qualité de société [du pays Y], ont, par leur choix univoque
en faveur du droit français, véritablement décidé de faire application de la CVIM.
Quoi qu 'il en soit, les Parties n 'ont pas débattu de l 'application de la CVIM. Par
ailleurs, l’application de la CVIM ne permettrait pas de trancher les questions
posées dans la présente Sentence. Le Tribunal arbitral décide par conséquent qu'il
ne sera pas fait référence à la CVIM dans le cadre du présent arbitrage. »
Sur les questions relatives aux allégations de corruption, au-delà de l’invocation de
dispositions du Code civil français applicables (art. 1108 et 1133) concernant la cause
illicite, l’analyse du tribunal arbitral est la suivante:
.. .
« une majorité de la doctrine, confortée par de nombreuses sentences arbi¬
trales, considère que l'immoralité des pratiques de corruption et de trafic
d'influence est fondée sur une règle véritablement internationale, de telle sorte
qu’il n’est pas douteux que celle-ci appartient à ¡’ordre public transnational (CCI
N° 2730; CCIN° 1110; LALIVE dans Congrès ICCA série N° 3 (New York 1986), p.
293). Certains vont même jusqu’à affirmer qu’il existe un consensus général quant
à l’existence d’un « droit commun à l’ensemble des nations » sur ce point
(KOSHERI/LEBOULANGER, l’Arbitrage face à la corruption et au trafic
d’influence, Rev. de l'Arb., 1984, p. 3,5).

~
— T-— iZTJSSSvïTFÿ" VV .
li.
— •:
—
r„zz2L 2-11:

Enfin, la France a ratifié la Convention OCDE sur la lutte contre la corruption
d’agents publics étrangers dans les transactions commerciales internationales
(ci-après
« Convention OCDE » dont l’article 1 prévoit:
« Chaque Partie prend les mesures nécessaires pour que constitue une infrac¬
tion pénale en vertu de sa loi le fait intentionnel, pour toute personne, d'offrir, de
promettre ou d octroyer iiti avantage indu pécuniaire ou autre, directement ou pay
des intermédiaires, à un agent public étranger, à son profit ou au profit d’un tiers,
pour que cet agent agisse ou s’abstienne d'agir dans l'exécution de fonctions
officielles, en vue d'obtenir ou conserver un marché ou un autre avantage indu
dans le commerce international.
Chaque Partie prend les mesures nécessaires pour que constitue une infraction
tr pénale le fait de se rendre complice d’un acte de corruption d’un agent public
# étranger, y compris par instigation, assistance ou autorisation. [...]».
Le 30 juin 2000, la France a transposé la Convention OCDE en adoptant la loi
N° 2000-595, entrée en vigueur le 29 septembre 2000 (CHARPIER, FCPA, Con¬
vention OCDE et Nouvelle Législation des États Membres de FOCDE, Lausanne
2004, p. 515). La France a ainsi confirmé et reconnu le caractère illicite de
la corruption d'agents publics étrangers dans les transactions commerciales
internationales. »
«Il résulte de ce qui précède que la corruption est illicite, tant en vertu du droit
français que des règles d'ordre public international. »
Et le tribunal justifie la recherche de l’intention des parties à la lumière du droit français
applicable:
« L’examen de la légalité de la cause permet au juge de s’assurer des motifs
qui ont amené les parties à conclure leur convention (MALAURIE/AYNES, Les
obligations, Paris 1999, p. 301). Cependant la jurisprudence estime que le juge
ne prendra en compte que la cause initiale et déterminante (Civ. I, 1 octobre
1996).
Il est dès lors nécessaire de déterminer en premier lieu la véritable intention des
parties. Une telle détermination est parfaitement possible, dans la mesure où
l’illégalité de la cause s'interprète généralement au moyen d’éléments subjectifs
(KOSHERI/LEBOULANGER, op cit, p. 3, 9).
[ÿ•ÿ]
Dès lors, en droit français, le juge (ou l’arbitre) doit déterminer l’intention des
parties en examinant les termes utilisés dans le contrat ainsi que le comportement
ultérieur des parties contractantes (Civ. 3e, 5 février 1971; Civ lre, 13 décembre
1988; 9 novembre 1993). Le juge peut se référer à la conduite précontractuelle des
parties afin de rechercher leur intention (voir notamment Civ 1, 18 février 1986,
Bull. civ. I,N° 31, en ce qui concerne les offres précontractuelles émanant de l'une
des parties). Ceci est confirmé par la pratique arbitrale et il a notamment été jugé
que « le but de l'interprétation est d’établir l’intention réelle des parties au-delà
des termes utilisés dans leur convention. Au regard de ce principe, l’ensemble des
circonstances, antérieures, concomitantes ou postérieures au contrat en cause,
doivent être prises en compte, car elles sont liées à l’objet de l’interprétation »
(CCI, N° 6848, dans Annuaire d’Arbitrage Commercial, Vol. XIX, p. 124-140,
p. 127-128).
Par ailleurs, l’article 1161 du Code Civil dispose que:
« Toutes les clauses des conventions s’interprètent les unes par rapport aux
autres, en donnant à chacune le sens qui résulte de l’acte entier. »
Il ressort de cette disposition que le contrat doit être considéré dans son
ensemble lors de l'interprétation de ses clauses les unes par rapport aux autres. »

En ce qui concerne l’obligation liée au Programme d’Ajustement Structurel

(« PAS »), le tribunal arbitral considère qu’:
.
«[ . . ] Il est cependant clair à la lecture du Contrat d 'Achat (et les parties sont
d’accord sur ce point) que X s'est engagée à soutenir les efforts déployés par le
Gouvernement en vue de la réalisation du PAS. Il s'ensuit que cette obligation
faisait partie de la cause du contrat.
Ce type d'obligation est inhabituel dans les contrats d’achat de pétrole (en fait,
il pourrait entraîner la requalification de ce contrat en une sorte de contrat de
services) et il est clair, avec le recul, que X ne disposait pas de l’expertise ni des
effectifs nécessaires pour s'acquitter de cette obligation. H est très étrange qu'une
société pétrolière internationale ayant la réputation de X ait conclu à la légère un
contrat stipulant des obligations qu 'elle n'a pas les moyens d'exécuter (ou aurait
d’ores et déjà exécutées). H est utile de rappeler que le signataire représentant X
était son Président, M. [ .. . ]. Cet élément doit être pris en compte au regard de
l’un des faits révélés lors des audiences: l’article 3.3 a été ajouté à la dernière
minute et par voie manuscrite. Il n’est pas inhabituel ou suspect de voir des ajouts
manuscrits dans des contrats, même lorsqu’Us sont importants. Cependant, ces
ajouts portent le plus souvent sur des clauses secondaires, sur la compétence ou
encore sur le droit applicable. Ils peuvent également porter sur des idées ou
modifications de dernière minute. II est nettement moins fréquent de les voir porter
sur l'une des obligations majeures et, encore moins, essentielles des parties. On
peut dès lors faire valoir que les obligations de X au titre du PAS étaient soit très
secondaires soit hautement suspectes. Ces deux éventualités semblent difficiles à
concilier avec la position et les arguments que la demanderesse fait valoir dans le
cadre du présent arbitrage.
Par ailleurs, il apparaît clairement que X intervenait dans son domaine d’acti¬
vité lorsqu‘elle achetait du pétrole ou menait des activités de prospection marine
ou terrestre, mais non quand elle acceptait d’apporter son soutien à un Programme
d’ajustement structurel. »
Concernant la preuve de l’existence même de la corruption la sentence énonce
que:
« [l’État] se fonde sur de nombreuses conditions anormales qui selon [lui]
démontrent le caractère illicite du Protocole en ce qu‘il a permis l’enrichissement
de certains dirigeants [de l’État].
Dans la mesure où le Tribunal arbitral a jugé que le programme d’ajustement
structurel et le prix de USD 3 constituaient la cause du Protocole et où [l’État]
prétend que ces obligations étaient fictives et dérisoires, il reste à analyser leur
nature et à déterminer s’ils occultent en réalité une autre cause, à savoir la cor¬
ruption.
En vertu d’un principe général, la charge de la preuve incombe à la partie
invoquant le caractère illicite du contrat (Civ. 1, Ier octobre 1986, Bulletin I N°
230, p. 220). Cependant, ce caractère illicite est souvent difficile à prouver, les
parties masquant l’objet réel du contrat derrière des stipulations contractuelles
anodines (MAYER, les Commissions illicites, publication CCI N° 480/2, 1992,
— —
p. 51). Les Tribunaux ou les arbitres peuvent, en principe, utiliser tous moyens
de preuve autorisés par la loi, étant entendu qu’ils ne sont pas liés par la formu¬
lation du contrat (Civ. 2 janvier 1907, Bulletin Arrêts Cour de cass., chambre civile
N°l.p.l).
Pour cette raison, les arbitres n’ont d’autre choix que de se reposer sur des
indications extracontractuelles (affaire CCI n° 8891, dans: J.D.1. 4, 2000, p. 1076,
1079; KOSHERI/LEBOULANGER, op. cit. p. 3, 6; ROSSEU PRAGER, Commis¬
sions illicites et arbitrage international: la question de la preuve, dans (1999) 15
Arbitration international 4, p. 331; TSCHANZ/ VULLIEMIN, Chronique de

-LV.
V?SÿT "
si

jurisprudence étrangère, Suisse, (2001) Rev. de I 'Arb.,p. 885-912). Il n’est en effet
pas nécessaire que la nature illicite du contrat se déduise des termes de celui-ci
(MALAURJE/AYNES, op. cit., p. 304). L 'exigence en matière de preuve est dès lors
réduite et peut se limiter à une présomption reposant sur des indices (KOSHER1/
LEBOULANGER, op. cit., p. 3, 6; ROSSEL/PRAGER, op. cit. p. 33]- TSCHANZ/
VULLIEMIN, op. cit.).
A cet égard, les éléments suivants ont été considérés comme des indications
d’une activité illicite:
— L’incapacité de rapporter la preuve d 'une quelconque activité (affaire CCI
n° 8891, op. cit. p. 1076, 1079; ROSSEL/PRAGER, op. cit. p. 331)
— La durée des négociations (affaire CCI n° 8891, op. cit., p. 1076 1079;
affaire CCI n° 3916, JDI 1984, p. 930, 932)
zr —La rémunération au pourcentage (affaire CCI n° 8891, op. cit. p. 1076 1080;
ROSSEL/PRAGER, op. cit. p. 331; KOSHERI/LEBOULANGER, op. cit. p. 3. 7;
BERKELEY, Institut du droit et des pratiques des affaires internationales de la
—
CCI Contrats d'intermédiaires et commissions illicites: (1990, Rev de l'Arb, p.
736)
— Le niveau de rémunération excessif (affaire CCI n° 8891, op.cit., p. ¡076,
1080, ROSSEL/PRAGER, op. cit., p. 331; KOSHERI/LEBOULANGER, op. cit., p.
3, 6; DERAINS, La lutte contre la corruption
— le point de vue de l'arbitre
international: Contribution au Congres AIJA, Montreux, 1996)
— Le pays en cause notoirement connu pour ses problèmes de corruption
(affaire CCI «° 1110; KOSHERI/LEBOULANGER, op. cit. p. 3. 9; TSCHANZ/
VULLIEMIN, op. cit.) »
Ayant estimé que certain des indices précédents étaient présents le tribunal déclare la
nullité du Protocole et se penche sur les conséquences pécuniaires de cette déclaration, tout
particulièrement, sur la demande reconventionnelle de l’État.
«[...] l'État a fait valoir avec succès que le Protocole ne pouvait être exécuté
pour cause d’illicéité et contrariété aux bonnes mœurs. En de telles circonstances,
un principe général de droit français veut que ni les réclamations formées en vertu
d’un tel contrat ni les demandes en restitution ou actions en enrichissement sans
cause au titre des obligations déjà exécutées ne soient recevables (« in pari causa
turpitudinis cessât repetido »). En effet, le droit français prévoit que dans l'hypoth¬
èse où un contrat est jugé nul pour avoir trouvé sa cause dans la corruption et où
cette cause est connue des deux parties, aucune action en répétition ne peut être
admise (Paris, Cour d’appel, 30 septembre 1993, « European Gas Turbine v.
—
Westman », Revue de l’Arbitrage, 1994 N° 2, p. 359-370, 366). Dans le cas
susvisé, la cour d’appel de Paris avait motivé sa décision par l’application de
l’adage « in pari causa turpitudinis cessât repetido ». Celui-ci veut qu'aucune
demande de restitution ne soit recevable en cas d 'immoralité des deux parties à un
contrat.
Cede théorie n 'est pas contestée si l 'obligation illicite ou immorale a été exé¬
cutée en pleine connaissance de cause. Etant donné que la corruption est un acte
délictueux, la connaissance qu 'en avaient les représentants ou agents [de l’État] ne
peut être imputée à ce dernier: les théories de la représentation et de la connais¬
sance présumée ne valent que pour les actes juridiques et ne sont pas applicables
aux faits juridiques.
Cependant, il faut alors se demander si certains des représentants [de l’État] ont
eu leur mot à dire quant aux divers contrats en cause et à leur exécution et s’ils
n'ont pas eux-mêmes été impliqués dans les pactes de corruption ou se sont abste¬
nus d’agir. Ceci constituerait un argument en faveur d'une connaissance présumée
et entraînerait un rejet de la Demande reconventiormelle.
Reprinted from the CLunet 835

Cependant, il n 'est pas nécessaire de trancher cette question.

Un principe général veut qu'une faute grave (négligence) équivaille à une
intention (« magna negligentia culpa est; magna culpa dolus est »).
En l’espèce, [l’État] a fait valoir de manière convaincante cinq éléments prou¬
vant de manière évidente que le Protocole n 'était pas un contrat conclu de bonne
foi, mais était entaché par la corruption.
Dès lors, les représentants [de l’Etat] auraient dû réaliser, lorsque le Protocole
leur a été présenté, qu’il ne s'agissait pas d’un contrat conclu de bonne foi et
refuser de l 'exécuter ou en toute hypothèse d 'exécuter les engagements repris dans
ce dernier. »
« Il est raisonnable de considérer que [l’État] a agi de manière inconsidérée en
exécutant et, en fait, en ratifiant le Protocole sans aucune réserve jusqu'à la date de
signature du Protocole. [L’État] a accepté le versement de la somme de USD
15'000'000 et a livré le pétrole, entérinant ainsi la cause illicite du Protocole.
Si [de l’État] avait été diligent, il n 'aurait pas accepté de confirmer un tel contrat
sans procéder préalablement à un minimum de « due diligence ».
Par ailleurs, un État ne peut en lui-même être corrompu; seuls ses dirigeants
peuvent être corrompus. Il semblerait dès lors que la règle « in pari causa » ne
devrait pas s'appliquer à un Etat précisément victime de la corruption, comme
C 'est ici le cas. Cependant, un Etat où la corruption est endémique ne peut s'abriter
derrière sa propre conduite qui l'aurait amené à participer à un montage entaché
de corruption pour ensuite formuler une demande en remboursement de l’indu.
Il en résulte que dans la mesure où [l’État] aurait dû se rendre compte du fait
que la cause du Protocole était illicite, sa demande de restitution n'est pas fondée.
La Demande Reconventionnelle [de l’État] est dès lors rejetée. »
— —
NOTE. I. La question de l’autonomie de la convention d’arbitrage, et de sa survie
face à la nullité du contrat dont elle fait partie, étant aujourd’hui acquise et reconnue par la
vaste majorité de systèmes juridiques (V. F.-E. Klein, Du caractère autonome de la clause
compromissoire, notamment en matière d’arbitrage international (Dissociation de la nul¬
lité de cette clause de celle du contrat principal),: Rev. crit. DIP 1961, p. 499 and Rev. arb.
1961, p. 48. — P. Sanders, L'autonomie de la clause compromissoire in Hommage à
Frédéric Eisemann: ICC Publication N° 321, 1978, 31. — S. Schwebel, International
Arbitration: Three Salient Problems « The Severability of the Arbitration Agreement »,
—
1987, p. 1-60. P. Mayer, L’autonomie de l'arbitre international dans l'appréciation de
sa propre compétence, in Collected courses of the Hague Academy of International Law,
—
Vol 217, Year 1989, Part V, p. 110. Ph. Fouchard, E. Gaillard et B. Goldman, Traité de
l 'arbitrage commercial international: Litec 1996, p. 389 et s.), il est permis de s’interroger
sur les raisons qui ont poussé le tribunal arbitral à s’attarder sur cette question, d’autant plus
qu’au cours de l’arbitrage, les parties ont renoncé à leurs objections à la compétence du
tribunal et ont signé un compromis dont la validité n’a jamais été contestée. Ên effet, la
compétence du tribunal découlant du compromis et la nullité demandée ne concernant que
le Protocole, même en l’absence de « principe d’autonomie » la compétence du tribunal
n’apparaissait pas susceptible d’être remise en cause.
Fort probablement, le tribunal a voulu, d’une part, répondre aux injonctions de l’article
6(2) du règlement d’arbitrage de la CCI, la Cour de la CCI ayant décidé de la mise en œuvre
de cet arbitrage sur la base de l’existence prima facie d’une convention d’arbitrage (ce qui
oblige les arbitres à prendre une décision sur leur compétence) et, d’autre part, il a voulu se
rasséréner face aux allégations de corruption qui entachaient le Protocole et au fait que le
— —
compromis avait pris la forme d’une « stipulation » accord de procédure formel entre
deux litigants passé devant un juge propre à la procédure américaine.
Le tribunal se préoccupe donc de confirmer, sur le fondement de ce que le tribunal dénomme
« l’indépendance » de la convention d’arbitrage, l’existence d’un compromis entre les parties
et le fait que la nullité alléguée du Protocole n’emportait pas celle du compromis.

i-.
-- ---ÿ ■■ r:r±_ ZESSZ5Z

S’agissant de la méthode, il aurait toutefois été plus approprié, pour un tribunal siégeant
en France, de « justifier » sa compétence sur la base « du pouvoir reconnu en matière
d’arbitrage international à l’arbitre d’apprécier la licéité du contrat au regard de règles
relevant de l’ordre public international et de sanctionner l’illicéité en prononçant en parti¬
.
culier sa nullité » (Paris, 29 mars 1991, Ganzc/SNCFT: Rev arb. 1991, p. 478). En effet,
en se référant à la « célèbre sentence Lagergren » de 1963 (V. Recueil des sentences
arbitrales de la CCI 1996-2000, p. 1) qui a raisonné en termes d’aibitrabilité du litige
et non de séparabilité de la convention d’arbitrage, on aurait pu penser que c’était la voie de
l’arbitrabilité que les arbitres songeaient prendre.
Pour une évolution de l’approche des arbitres face à 1’arbitrabilité de litiges portant sur
des activités illicites v. le commentaire sur la sentence n° 5943 de 1990 (JDI 1996, p. 1014;
Recueil des sentences arbitrales de la CCI 1996-2000, p. 431).
st-
a
—
II. Pas plus que la question de la compétence du tribunal, celle de la détermination du
droit applicable n’était appelée à susciter l’intérêt du tribunal arbitral. En effet, les parties
étaient d’accord avec l’application du droit français.
Ce qui attire surtout l’attention dans la sentence c’est le contenu du droit français
applicable et notamment la décision du tribunal de ne pas appliquer la totalité du droit
français, à savoir la Convention des Nations Unies sur la vente internationale de march¬
andises conclue le 11 avril 1980 à Vienne (CVIM). En principe, la CV1M est applicable «
lorsque les règles du droit international privé mènent à l’application de la loi d'un Etat
contractant » (art. 1.1.b). La France ayant ratiñé la convention et le droit français étant (en
vertu de la loi d’autonomie) le droit visé par « les règles du droit international privé »,
l’application de la CVIM paraissait acquise ( V. Sentence CCI «° 8324 de 1995: JDI 1996,
p. 1019; Recueil des sentences arbitrales de la CCI 1996-2000, p. 431, obs. D. H.).
Mais le tribunal est d’un avis contraire. Il décidé de « ne pas faire référence » à la CVIM
dans le cadre de l’arbitrage aux motifs: (i) qu’il n’a pas été démontré que les parties « ont,
par leur choix univoque en faveur du droit français, véritablement décidé de faire appli¬
cation de la CVIM», (ii) que les parties n’ont pas débattu de son application, et (iii) qu’en
tout cas, la CVIM ne permet pas de trancher les questions décidées par la sentence,
Ce raisonnement du tribunal soulève des interrogations.
Tout d’abord, en ce qui concerne l’intention des parties de rendre applicable la conven¬
tion, il faut rappeler que lorsque le contrat entre dans son champ d’application, la convention
est applicable de plein droit sauf exclusion des parties conformément à sa « clause d’exclu¬
sion » (art. 6). Que les parties aient ou non envisagé l’application de la CVIM n’est donc pas
une question pertinente, à moins que l’arbitre ne souhaite en inférer la volonté implicite des
parties d’écarter la CVIM ( V. Sentence CCI n° 6653 de 1993: JDI 1993, p. 1040; Recueil des
—
sentences arbitrales de la CCI 1991-1995, p. 513, obs. J.-J. A. V. aussi obs. S. J. sur la
Sentence n° 9608 de 1998: JDI 2004, p. 1294; Recueil des sentences arbitrales de la CCI
2001-2007, p. 669).
L’existence d’un débat entre les parties sur l’application de la CVIM n’est donc pas une
condition de son application. La question du débat est en revanche pertinente pour assurer
le respect du contradictoire entre les parties et éviter la sanction du juge de l’annulation. Ce
n’est pas parce qu’il n’y a pas eu de débat que la CVIM n’est pas applicable mais parce
qu’elle est applicable qu’il faut donc susciter le débat. Il appartenait donc au tribunal
arbitral de soulever d’office la question de l’application de la Convention.
L’argument tiré de l’insuffisance de la CVIM pour régler les questions litigieuses sem¬
ble plus convaincant. En effet, la convention ne régit pas « la validité du contrat ni celle
d'aucune de ses clauses non plus que celle des usages » (art. 4.a). Dans la mesure où la
question centrale de cet arbitrage était la nullité du contrat, la CVIM n’apportait rien à cet
égard.
i
—
III. En s’appuyant sur la doctrine et sur le Code civil français, le tribunal arbitral
entame l’analyse de la prétendue nullité du contrat à la lumière des conditions de validité
des contrats en droit français (C. civ., art. 1108) et s’attarde particulièrement sur l’exigence
d’une « cause licite » (C. civ., art. 1133) et sur le besoin de déterminer les motifs qui ont
amené les parties à conclure l’acte attaqué (V. P. Malaurie, L. Aynès et P. Stoffel-Munck,
Les Obligations: Defrénois, 4e éd. 2009, p. 626 et s.). Cette démarche est parfaitement
légitime et ne peut être qu’approuvée. En présence d’engagements illicites, la lettre du
contrat n’est qu’une façade qui cache la véritable intention des parties. La recherche de
cette intention devient alors un exercice compliqué où le contrat passe du statut de source
d’interprétation à celui d’écran au travers duquel il faut deviner la portée réelle des engage¬
ments des parties.
Dans cette affaire, la tâche du tribunal (et du conseil plaidant la nullité) était particu¬
lièrement difficile dans la mesure où il y avait plusieurs contrats impliquant des parties qui
n’étaient pas convoquées à l’arbitrage. Ceci explique pourquoi le tribunal a estimé néces¬
saire de se référer à l’article 1161 du Code civil français sur la possibilité de recourir aux
autres dispositions contractuelles pour donner un sens à l’acte entier. En effet, les arbitres
ont dû se pencher sur l’analyse d’une multiplicité de contrats contenant des obligations
dont la contrepartie se trouvait dans un avenant ou encore dans un autre contrat.
Ce qu’il faut remarquer c’est la méthode utilisée parle tribunal qui décide de procéder en
deux étapes. Premièrement, comme pour se dégager de tant de contrats et des obligations
plus ou moins explicites, le tribunal se recentre sur le Protocole et, suivant la doctrine qui
considère la cause des obligations dans les contrats synallagmatiques comme étant l’exécu¬
tion espérée des obligations par l’autre partie, arrive à la conclusion que la cause du
Protocole était l’exécution du Programme d’ajustement structurel (PAS) et le paiement
du prix convenu de USD 3/baril pour le pétrole. En deuxième lieu, le tribunal s’attèle à
l’analyse de la nature de ces prestations pour vérifier si elles ne cachent pas une autre cause:
la corruption.
—
IV. On ne peut plus contester que la condamnation de la corruption fait partie de
règles dites transnationales de l’arbitrage (P. Lalive, Ordre public transnational (ou réel¬
—
lement international) et arbitrage international: Rev. arb. 1986, p. 329. B. M. Cremades
et D. J. A. Cairns, Corruption, International Public Policy and the Duties of Arbitrators:
—
Disp. Resol. J. 76 (2004). B. M. Cremades, Corruption and Investment Arbitration in
Global Reflections on International Law, Commerce and Dispute Resolution, Liber
Amicorum in honour of Robert Briner: ICC Publication, p. 203-220 (2005)). Par consé¬
quent, on ne peut que saluer le fait que le tribunal arbitral fonde son raisonnement aussi sur
des sources internationales y compris la notion d’ordre public réellement international. En
effet, la distinction effectuée par le tribunal entre droit français et « les règles d’ordre public
international » montre bien que le tribunal a voulu faire référence à l’ordre public réel¬
lement international et non simplement à la conception française de l’ordre public
international. La référence à la Convention sur la lutte contre la corruption d’agents publics
étrangers dans les transactions commerciales internationales de 1997 (même si le tribunal
s’empresse de souligner que celle-ci fait partie du droit français applicable) montre bien
que la corruption même lorsqu’elle se passe dans des Etat tiers est contraire aux bonnes
mœurs dans une conception universelle.
V. — Si l’analyse factuelle de la situation soulevait des difficultés pour le tribunal
arbitral, il faut reconnaître que du point de vue juridique la tâche était plus facile. En
effet, tel qu’il ressort de la sentence, les arbitres ont pu bénéficier de l’expérience d’autres
arbitres qui ont été amenés à se prononcer sur des engagements illicites. Plusieurs de ces
sentences ont été publiées et ont fait l’objet de commentaires (V. affaire CCI n° 1110: JDI
1984, p. 921; Recueil des sentences arbitrales de la CCI 1974-1985, p. 498 et Recueil des
—
sentences arbitrales de la CCI 1996-2000, p. 1. affaire CCI n° 3913: JDI 1984, p. 920;

J.
__
l-'
J
■
—
Recueil des sentences arbitrales de la CCI 1974-1985, p. 497, affaire CCI n° 3916: JDI
—
1984, p. 930; Recueil des sentences arbitrales de la CCI 1974-1985, p. 509. affaire CCI
n° 4145: JDI 1985, p. 985; Recueil des sentences arbitrales de la CCI 1974-1985, p. 560 et
—
Recueil des sentences arbitrales de la CCI 1986-1990, p. 53. affaire CCI n° 5622: YB
XIX (1994) 105; Recueil des sentences arbitrales de la CCI 1991-1995, p. 220. affaire—
CCI n° 5943: JDI 1996, p. 1014; Recueil des sentences arbitrales de la CCI 1996-2000, p.
—
431. affaire CCI n° 6248: YB XIX (1994) 124; Recueil des sentences arbitrales de la CCI
1991-1995, p. 239. — affaire CCI n° 7047: YB XXI (1996) 79; Recueil des sentences
arbitrales de la CCI 1996-2000, p. 32. — affaire CCI n° 8891: JDI 2000, p. 1076;
—
Recueil des sentences arbitrales de la CCI 1996-2000, p. 561. affaire CCI n° 9333:
JDI 2002, p. 1094; Recueil des sentences arbitrales de la CCI 2001-2007, p. 575).
Ainsi, l’analyse des circonstances de l’affaire effectuée par le tribunal n’appelle pas de
? remarques particulières. Les arbitres concluent qu’aucune preuve n’a été apportée concer¬
nant l’exécution du PAS. Aucun document ou bilan comptable, aucun salarié ni sous-
traitant n’a témoigné, et les connaissances techniques de la part de la demanderesse,
requises pour exécuter sa prestation, n’ont pas été démontrées. Le tribunal arbitral souligne,
ajuste titre, qu'il incombait au demandeur d’apporter la preuve de son activité même si
c’est l’État qui allègue la corruption. Cette approche constitue un bon exemple de
comment, particulièrement dans l’arbitrage international, la notion de « fardeau de la
preuve » peut être relativisée pour permettre l’application d’une « obligation de collabo¬
ration » à la charge de la partie qui estmieux à même d’apporter la preuve d’un fait concret,
en l’espèce sa propre activité commerciale (V. sentence CCI n° 6653 de 1993: JDI 1993, p.
1040; Recueil des sentences arbitrales de la CCI 1991-1995, p. 513, obs.J.-J. A.). En ce qui
concerne la rémunération, et s’appuyant sur les contrats conclus entre la demanderesse et
X, le tribunal considère que la commission de 25 % du revenu brut de l’opération que X
s’est engagé à verser au demandeur en contrepartie de son assistance dans la mise en place
— —
du PAS est exorbitante, d’autant plus que comme le tribunal le juge la prestation liée
au PAS n’a jamais été exécutée et constitue donc une prestation fictive. Pour le tribunal,
aussi bien le mode de rémunération (en pourcentage) que son montant constitue des indices
très forts de corruption. Le tribunal arbitral retient donc que la rémunération liée au
Protocole comporte des montants destinés à assurer une corruption de nature à permettre
l’attribution du Contrat d’achat à X. Le tribunal ne trouve rien à reprocher concernant la
durée des négociations des contrats, qu’il considère brève (trois mois) mais pas au point de
constituer un indice de corruption. Toutefois, le tribunal trouve suspecte la façon dont, à la
dernière minute et par mention manuscrite, l’obligation relative au PAS a été ajoutée au
Contrat d’achat. Finalement, le tribunal fait référence à un état de corruption généralisé
dans le pays en cause et à des condamnations pénales intervenues en relation avec cette
affaire. A cet égard, la sentence affirme: « ... on ne peut ignorer le fait bien connu que
\)'É\2lÍ\ faisait face à une situation de corruption endémique. Les parties s’accordent sur ce
point », pour conclure qu’il « s’ensuit que les éléments du dossier sont objectivement
corroborés par les conditions existant à la date concernée dans [l’État] » et d’ajouter
que « les condamnations intervenues [dans l’État] constituent des indices complémentaires
convergeant avec les conclusions du tribunal ». D’autres indices tels que le caractère secret
de l’intervention du demandeur et la procédure d’enquête (qui n’a donné lieu à aucune
sanction) menée par l’autorité du marché boursier américaine (« Securities and Exchange
Commission — SEC ») ne sont pas considérés comme prouvant la corruption.
Le mérite de la sentence consiste à rappeler de manière ordonnée et succincte la
démarche d’un tribunal arbitral qui est confronté à des allégations relatives au caractère
illicite du contrat.
Tout d’abord, en ce qui concerne la preuve, le tribunal explique que la preuve directe du
caractère illicite du contrat est souvent difficile, voire impossible. Les arbitres doivent donc
s’appuyer sur des éléments extrinsèques au contrat et se contenter d’un faisceau d’indices.

Il est bien établi, surtout en matière d’arbitrage CCI que les arbitres peuvent avoir recours à
tous les moyens appropriés pour l’instruction de l’arbitrage (art. 20 du règlement de la CCI.
— Y. Derains et E. Schwartz, A guide to the ICC Rules of Arbitration, 2e éd.: Kluwer, 2005,
p. 271-273).
En ce qui concerne les « indices » proprement dits d’une activité illicite, il existe
aujourd’hui une « liste » plus ou moins établie des indices (non cumulatifs) qui permettent
à l’arbitre de conclure à la présence d’une activité illicite: l’incapacité à produire la preuve
d’une activité; la durée (très courte) soit des négociations amenant à la conclusion du
contrat soit de l’intervention découlant de la prestation litigieuse; et le mode de rémunération
et son montant (V. M. Scherer, Circumstantial Evidence in Corruption Cases Before
International Arbitral Tribunals: Transnational Dispute Management, Vol. 1
— issue 3,
July 2004). Le tribunal, à juste titre, reprend ces éléments dans son analyse des circonstances
de l’affaire. Toutefois, il conforte son analyse en se référant, d’une part, à la situation générale
de corruption qui caractérise l’État défendeur et, d’autre part, aux condamnations pénales
prononcées à l’encontre de certains de ses fonctionnaires par les tribunaux de cet État.
Retenir ces deux derniers indices, même à titre « supplémentaire », est plus discutable. En
ce qui concerne le caractère « notoire » des problèmes de corruption d’un pays, il est difficile
d’arriver à une telle constatation lorsque l’on vient de reconnaître combien il est difficile
d’établir l’existence de corruption. Cet indice, repris de la sentence Lagergren de 1963, traduit
en outre une certaine condescendance à l’égard des pays en difficultés économiques ou poli¬
tiques qui, si elle pouvait trouver une certaine justification en 1963, est aujourd’hui plus
difficile à défendre. Dans cette affaire, il n’y a toutefois rien à reprocher au tribunal arbitral
puisque les deux parties étaient apparemment d’accord sur cet « état généralisé de corruption
». En ce qui concerne les condamnations pénales, il est difficile de faire abstraction du fait
qu’elles ont été prononcées à l’encontre de leaders politiques, renversés comme résultat d’une
confrontation militaire interne qui a ravagé leurs pays, ce qui invite â les regarder avec
circonspection.
—
VI. Le Protocole ayant été déclaré nul et non avenu, il était évident que les demandes
principales devaient être rejetées. Mais l’État, qui avait déjà exécuté une partie de ses
obligations notamment en livrant plus de 2 millions de barils de pétrole, avait formé
une demande reconventionnelle visant le remboursement de l’indu.
Le tribunal commence par écarter le principe de droit français qui n’admet pas l’action
en répétition lorsque les deux parties ont participé à la corruption. En effet, le tribunal
considère qu’« un Etat ne peut en lui-même être corrompu; seuls ses dirigeants peuvent être
corrompus ». Sans distinguer entre la responsabilité pénale (qui est personnelle) et la
responsabilité civile (qui peut être imputée ou transmise), le tribunal conclut que la con¬
naissance de la corruption de la part de certains fonctionnaires ne peut être imputée à l’État.
Le tribunal conclut donc à un manquement grave de la part de « représentants de l’État »
(sans les identifier, mais, vraisemblablement, d’autre fonctionnaires qui n’étaient pas
directement impliqués dans la corruption) en estimant que l’État «aurait dû se rendre
compte du fait que la cause du Protocole était illicite » et qu’« un État où la corruption
est endémique né peut s’abriter derrière sa propre conduite qui l’aurait amené à participer à
un montage entaché de corruption pour ensuite formuler une demande en remboursement
de l’indu ».
Il faut reconnaître que si l’argument est ingénieux il apparait peu convaincant. Il aurait
été préférable de partir du constat, fait par le tribunal que, d’une part, la corruption était
notoire (« les représentants [de l'État] auraient dû réaliser, lorsque le Protocole leur a été
présenté, qu'il ne s'agissait pas d'un contrat conclu de bonne foi et refuser de l 'exécuter »)
et que, d’autre part, les organes de contrôle de l’État avaient été grossièrement défaillants
(le tribunal assimile leur négligence au dol et déduit un acte volitif de ne pas réagir face à la
corruption), pour en déduire non seulement une responsabilité directe de l’État pour une

lían:
"
«
Li
sorte de « culpa in vigilando » ou, encore, « culpa in eligendo » au moment de choisir ses
fonctionnaires, sinon, clairement, pour déduire une connaissance et participation passive à
la corruption, ce qui aurait permis au tribunal de s’appuyer sur les principes de droit
français qu’il a écarté. Toutefois, le tribunal ne peut faire qu’avec ce que lui fournissent
les parties. Il est probable que le raisonnement suivi ait été le seul possible à la lumière des
arguments des parties sur lesquels la sentence n’est pas très explicite.
F. M.S.
arbitral
— Chambre de commerce internationale — Tribunal
%ÿ
■j

.-/.jj- i¿x¿3T—7r---- r-"i -Y:•:: i: :_
Sentences partidle et finale dans l’affaire CCI n° 13139, rendues

respectivement en 2005 et 2006 (originaux en langue anglaise)
I. — Provision pour frais. —

Article 30(3) du Règlement CCI.
Condamnation du défendeur à rembourser au demandeur la moitié de l’avance
—
des frais qu’il a versée à la CCL
ordonner le remboursement. — — —
Compétence du tribunal arbitral pour
Forme de la décision: ordonnance procédurale
(non) ou sentence arbitrale (oui). Le* arbitri droit anglais.
H. — Droit applicable et ordre public. — Contrat international de
distribution. —
Droit coréen applicable au fond choisi par les parties. —
Applicabilité des dispositions d’ordre public du lieu de distribution.
omanien sur l’agence commerciale.
—
Droit
Pouvoirs du tribunal arbitral siégeant
—
dans un pays tiers, siège à Londres (Royaume Uni).
Le différend est lié à un contrat de distribution exclusive conclu en 1999 aux termes
duquel la demanderesse, un distributeur omanien, a accepté de distribuer dans le Sultanat
d’Oman les produits fabriqués par la défenderesse, un fabricant asiatique. Le contrat est
soumis au droit coréen et tous les différends doivent être réglés par le tribunal arbitral de
trois membres siégeant à Londres, conformément au Règlement d’arbitrage de la CCI.
Le litige porte principalement sur la question de savoir si le contrat a expiré en février
2002 à l’issue du terme prévu de trois ans ou s’il a été renouvelé régulièrement par les
parties. Dans l'affirmative, le contrat a-t-il été valablement rompu par la défenderesse en
octobre 2002 ?
Selon la demanderesse, la défenderesse n’a pas renouvelé ou a rompu illégalement le
contrat après les trois premières années initiales. Nonobstant le fait que le contrat n’ait pas
prévu d’accorder une période plus longue ou de permettre au distributeur omanien d’obte¬
nir un renouvellement de l’accord (« nothing in this agreement shall be construed as
granting any right to a longer time or any right to a renewal hereof »), il était compris
par les parties que le contrat serait renouvelé afin• de permettre au distributeur de
recouvrer ses investissements et d’en tirer profit. Par ailleurs, et selon les dispositions
impératives du droit omanien sur l’agence commerciale, le fait pour le concédant de ne pas
renouveler régulièrement ou de rompre un contrat de distribution réussi constitue un abus
de droit qui permet au distributeur de réclamer des dommages-intérêts. Finalement, la
demanderesse prétend que le contrat a été renouvelé par les parties en avril 2002 pour trois
années supplémentaires jusqu 'en février 2005. Par conséquent, la rupture du contrat
décidée par le fabricant en octobre 2002 était illégale. Le distributeur a sollicité du
tribunal arbitral qu’il constate l’illégalité de la rupture du contrat, et qu’il lui accorde
au titre des pertes de profits sur la base d’une période de vingt ans la somme de US$ 31
millions à laquelle il avait droit. À titre alternatif le distributeur a sollicité la condamna¬
tion du fabricant au paiement d’une somme de US$ 19.5 millions à titre de dédommage¬
ment pour perte d’investissements.
Selon le fabricant asiatique, le contrat était conclu pour une période déterminée ayant
expiré à l’issue des trois ans convenus. Le renouvellement du contrat en avril 2002 était en
réalité un acte simulé conclu par les parties pour répondre aux exigences du droit omanien.
En effet, comme expliqué par le distributeur, ce document était nécessaire pour lui per¬
mettre d’ouvrir les lettres de crédit en faveur du fabricant et d’obtenir le dédouanement des
véhicules. Pour le fabricant, le contrat a été rompu en octobre 2002, les parties n‘ayant pas
pu se mettre d’accord sur les termes de son renouvellement.

SENTENCES ARBITRALES AFFAIRE NO. 13139, 2005, 2006
Le tribunal arbitral a tout d'abord constaté que le contrat prévoyait bien une période de
trois ans seulement sans qu'il y ait une obligation de renouvellement. L’ accord écrit des
parties doit être appliqué conformément au droit coréen et non pas en application du droit
omanien sur l'agence comme demandé par le distributeur. S’agissant du renouvellement
supposé du contrat en avril 2002 pour trois ans supplémentaires, le tribunal arbitral a
estimé qu'il n'avait pas besoin de se prononcer sur la validité du renouvellement ou de la
rupture du contrat avant l’expiration de la seconde période de trois ans, car à supposer
même que le contrat a été effectivement renouvelé et qu'il a été irrégulièrement rompu,
l'examen du dossier tend à démontrer que le distributeur n 'aurait pas dégagé de profits
avant la fin de la deuxième période de trois ans. Il ne pouvait pas, par conséquent, pré¬
tendre à des dommages intérêts pour rupture prématurée du contrat. Le tribunal arbitral a
donc rejeté l 'ensemble des demandes du distributeur et a alloué les coûts de l'arbitrage, y
compris les honoraires des conseils, en tenant compte de l’issue de l’arbitrage gagné par
les parties, soit 90 % par le fabricant et 10% par le distributeur.
La clause compromissoire insérée dans le contrat de distribution prévoyait le règlement
des litiges par voie d’arbitrage, à Londres conformément aux Règles et Procédures de la
Chambre de commerce internationale (« A II disputes, controversies, claims or différencies
which may arise between the parties, out of, or in relation to, or in connection with this
Agreement, or for the breach thereof, which cannot be settled by amicable co-operation
and negotiation shall be finally settled by arbitration in London in accordance with the
Rules and Procedures of the International Chamber of Commerce. The award rendered by
the arbiirator(s) shall be final and binding on the parties concerned »).
Le droit applicable au fond prévu par les parties est le droit coréen (« The validity,
performance, construction, and effect of this Agreement shall be governed by substantive
laws of the Republic of Korea without recourse to conflict of laws principles »).
Sur les frais de l’arbitrage
Dans cette affaire, la Cour a fixé la provision pour frais à un montant global de US$
420.000. La demanderesse paya immédiatement sa part de US$ 210.000 contrairement à la
défenderesse qui refusa. La demanderesse s’y substitua en réglant le solde de la provision
de US$ 210.000.
Lors de la signature de l’Acte de mission, la demanderesse a sollicité du tribunal arbitral
qu’il ordonne à la défenderesse de lui rembourser la seconde part de US$ 210.000.
La demanderesse, en citant deux sentences arbitrales CCI, les affaires n° 10526 et 10671
ainsi que la doctrine, soutenait que la défenderesse était contractuellement obligée de
verser sa part de la provision.
La défenderesse asiatique, s’est appuyée sur l’affaire CCI n° 12361 et un article de M.
Secomb, ancien conseiller de la Cour internationale d’arbitrage de la CCI, pour indiquer
que la théorie selon laquelle chaque partie a une obligation contractuelle de payer une part
de la provision fixée par la Cour, n’était pas universellement acceptée. Par conséquent, la
bonne solution au problème devrait être fondée plutôt sur la notion de mesures provisoires.
En d’autres termes, l’article 30(3) du Règlement CCI ne créé aucune obligation entre les
parties concernant le versement de la provision sur frais contrairement à une mesure
intérimaire rendue conformément à l’article 23(1) du Règlement CCI. La demanderesse
n’ayant pas sollicité une mesure provisoire, sa demande doit être rejetée.
Le tribunal arbitral, après s’être reconnu compétent, ordonna le remboursement de la
part de provision incombant à la défenderesse en faveur de la demanderesse sous la forme
d’une sentence arbitrale, dans les termes suivants:
« 35. This is an arbitration having its seat in London. The lex arbitri is English
arbitration law, particularly the Arbitration Act 1996. The following discussion is
based on this.
(...)

!
AFFAIRE NO. 13139, 2005, 2006 SENTENCES ARBITRALES

« 37. If (the manufacturer) has an obligation to provide its half of the advance, it
would appear that it is in breach of that obligation. The question is whether such an
obligation exists.
(ÿÿÿ)
« 38. The Arbitral Tribunal agrees that by entering into the separable Arbitra¬
tion Agreement (see sec. 7 Arbitration Act 1996) contained in the Distributor
Agreement and referring to the ICC Rules, [the manufacturer] undertook, save
special circumstances, to pay its share of the advance should it become a
respondent in an arbitration pursuant to the Arbitration Agreement.
« 39. In the doctrine, a majority of the authors, starting with Messrs. Craig/
Park/Paidsson, followed by Prof. Fadlallah, are of the view that this obligation is
to be seen a contractual commitment. See the comprehensive discussion by Mr
t- Matthew Secomb in ICC Bulletin 2003, pages 59, 62 to 64.
« 40. A minority, particularly Mr. Mitrovic, is of the view that the obligation to
pay advances is administrative in nature.
« 41. In the view of the Arbitral Tribunal, the agreement to arbitrate is a
separable contract which differs in its nature from the contract on the merits
:
inasmuch as it is a contract of a procedural nature, but it is a contract nevertheless,
giving rise to a procedural obligation to provide the advance on costs.
« 42. The Arbitral Tribunal is of the view that (the manufacturer) accordingly
had an obligation to make the advance, unless it is excused from this.
(...)
«47. The Arbitral Tribunal’s view is that the defense (of the manufacturer) that
the request of the distributor is frivolous is not a valid excuse. It will be for the
Arbitral Tribunal to decide on the merits of this dispute in its Final Award. At
—
that stage the Tribunal will make its decision on the arbitration costs a decision
which may or may not be influenced by the frivolous nature of a claim, or its
seriousness.
(...)
« 49. Thus, in the Arbitral Tribunal’s view (the manufacturer) is not excused
from its obligation to make the advance on costs, and breached its contractual
obligations in this arbitration by not doing so.
« 50. The second interesting question in the present case is whether it indeed
follows, as (the distributor) argues, that the Arbitral Tribunal must now issue an
award for reimbursement of the share (of the manufacturer), which (the distributor)
has been obliged to pay in order that these proceedings coidd continue.
« 51. The ICC Rules are silent on this point. As far as the ICC Rules are
concerned, the question then is whether this means that no award may be rendered,
or whether the ICC Rules leave the question to arbitral tribunals to decide.
« 52. The International Court of Arbitration has, in various instances approved
awards granting the relief sought here by (the distributor). The view that in ICC
arbitration no such award may be rendered has no support in ICC practice.
« 53. As a matter of legal doctrine, the Arbitral Tribunal finds the conclusion
inescapable that if a contractual obligation, even if it is a procedural contractual
obligation, has been breached, it has jurisdiction to issue immediately a Partial
Award in favor of the party that substituted itself for the defaulting party.
« 54. What still makes the Arbitral Tribunal hesitate is more of a practical or
pragmatic order. If, because of the legal nature of the obligation in the breach,
arbitral tribunals all around the world, not just ICC arbitral tribunals, must now
issue immediate awards for reimbursement of advances practically for the asking of
the substituting party, the international arbitration system is burdened by a
mechanical and tedious exercise for which it was not designed.
« 55. This is particularly true of an administered arbitration such as ICC arbi¬
tration. One can understand Mr. Secomb 's concern (expressed in a very subtle way
;
;
at the end of his article) that the basic idea in ICC arbitration is that money matters
are to be handled by the Secretariat, and ICC arbitral tribunals are freed from such
matters. By involving ICC arbitral tribunals in awards for reimbursement of
advances, these money matters come in through the back door.
(...)
« 59. The decision of the Arbitral Tribunal to grant the relief requested, must
indeed be issued in the form of an award which deals in a final manner with a
separate claim that is independent and not preliminary to other claims in this
arbitration.
« 60. The Arbitral Tribunal is aware that issuing an award in the ICC system
means that a draft of the award must be submitted to the ICC Court. It is not for the
Arbitral Tribunal to by-pass this procedure.
« 61. Since the Arbitral Tribunal issues an award it need not discuss whether, in
the absence of a motion to issue a preliminary measure it might still be entitled to
issue such a measure sua sponte, and whether then the special requirements that
must be fulfilled for an arbitral tribunal to issue provisional or conservatory mea¬
sures are met. »
« Award
« (The Respondent) shall pay (the Claimant) USD 210,000 within 28 days of the
date of receipt of this Award, in reimbursement for (the Claimant) having paid this
sum to the ICC in place of (the Respondent).
« The costs of this award will be assessed and allocated at a later date. »
Sur la relation entre le droit applicable au fond et l’ordre public du lieu de distribution
Selon le distributeur omanien, en dépit du choix du droit coréen par les parties comme le
droit applicable au fond, le droit omanien relatif aux agents commerciaux devait s’appli¬
—-
quer (Omani Commercial Agents Law OCAL), notamment les dispositions relatives à la
prolongation des contrats d’agence. La loi omanienne considère en effet que constitue un
abus de droit le fait pour une partie de ne pas prolonger ou de résilier un contrat d’agence
réussi.
Le tribunal arbitral aborda le sujet dans les tennes suivants:
« 298. The Arbitral Tribunal is an arbitral tribunal having its seat in London,
England. As such, the Arbitral Tribunal operates under the English Arbitration
Act 1996. That Arbitration Act 1996 contains the Conflict of Laws to be applied by
arbitral tribunals having their seat in England. This is different from the Conflict of
Laws to be applied by English Courts.
« Section 46 (of the Arbitration Act 1996) provides as follows:
The Arbitral Tribunal shall decide the dispute in accordance with the law
chosen by the parties as applicable with the substance of the dispute or, if the
parties so agree, in accordance with such other considerations as agreed by them
or determined by the tribunal. »
Après avoir constaté que les parties ont choisi expressément le droit coréen comme droit
applicable sur le fond, que ce droit n’appliquait pas en matière de conflit de lois le système
du renvoi, et que ce choix ne relevait pas d’une volonté de frauder puisque c’est le droit de
l’une des parties au contrat (absence de fraus legis), les arbitres ont conclu que la seule
question qui restait à résoudre était celle de savoir si l’ordre public omanien devait s’appli¬
quer dans le cas d’espèce:
« 321. The Arbitral Tribunal notes that if English Conflict of Laws as applied by the
English courts had to apply, there would be no room for the application of a law
other than that chosen by the parties because the English Contracts (Applicable
Law) Act of 1990, section 2(2), expressly excludes Art. 7(1) of the Rome Convention
from the Conflict of Laws of England.

1

« 322. While the English Arbitration Act 1996 does not mention the public policy
exception well-known in private international law, the Arbitral Tribunal accepts
that the reference to the applicable law contained in Section 46 of the English
Arbitration Act is, by implication, subject to the public policy exception present in
all systems of private international law.
« 323. If any domestic public policy applies, this must be English public policy,
not Omani.
« 324. Even if Omani domestic public policy applied the Arbitral Tribunal is not
persuaded that it is violated here.
« 325. The criteria to be applied to determine whether, in view of Omani law, a
particular provision is of a public policy nature were discussed by the experts on
Omani law.
« 326. It turned out that (the distributor's) argument that Art. 10 of OCAL is of
T3S- public policy nature has no support, by [the distributor's] own admission, in Omani
r. Statutory Law or in legal writing by Omani legal scholars. The arguments sug¬
gested by [the distributor’s] legal expert, [... Jin support of the proposition were
entirely unconvincing.
(...)
« 334. On balance, the Arbitral Tribunal comes to the conclusion that today Art.
10 of OCAL is not of domestic public policy nature in Omani law.
« 335. Moreover, the Arbitral Tribunal is of the view that in any event the only
public policy that would be sufficient to impose the application of a law not chosen
by the parties under the Conflict of Laws to be applied by an international arbitral
tribunal having its seat in London, would have to be not just of a domestic nature,
but of a truly transnational nature.
« 336. To be applicable on a “truly" public policy basis, a foreign law must,
among other things aim at protecting interests which are not purely local but
appear worthy of protection in a supranational perspective.
« 337. [The distributor] has argued only that in Oman OCAL may have a
domestic public policy nature. [The distributor] did not even attempt to demon¬
strate that OCAL Art. 10 protects supranational interests as a norm of truly
international public policy.
(--ÿ)
« 339. It follows that the Arbitral Tribunal must apply substantive Korean law
alone.
« 363. In Korean law, there is no obligation, imposed by custom and overriding
the express agreement of the parlies, that the distributorship agreements must be
extended unless the distributor has performed unsatisfactorily.
NOTE. — —I. L’article 20(3) du Règlement CCI, version 1998, dispose que « [l]a
provision fixée par la Cour est due en parts égales par le demandeur et le défendeur. ( . . .)
Toutefois, toute partie peut payer l'intégralité de la provision correspondant à une
demande principale ou reconventionnelle si l 'autre partie ne verse pas la part qui lui
incombe. ( . . . ) ». Comme nous l’avons déjà remarqué dans l’affaire CCI n° 10526
(JDI 2001, p. 1179), le problème du défaut de paiement par l’une des parties de sa part
de la provision n’est pas nouveau dans l’arbitrage CCI, ni d’ailleurs dans les arbitrages ad
hoc. C’est un problème récurrent et une cause répétée de retard de la procédure d’arbitrage.
On note avec intérêt la remarque liminaire du tribunal arbitral au paragraphe 35 de la
sentence partielle. Siégeant à Londres, ils indiquent que la lex arbitri est la loi anglaise de
l’arbitrage, soit l’Arbitration Act de 1996 qui reconnaît la doctrine de l’autonomie de la
clause arbitrale. C’est probablement pour cette raison que les arbitres l’ont invoqué comme
lex arbitri pour justifier que la clause compromissoire est un contrat séparé. Mais leur
raisonnement se limite ensuite au Règlement CCI et sa pratique, et plus généralement à la
I
doctrine internationale (V. § 39, 40 et 53 de la sentence partielle, supra). Aucune référence

n’est faite à ¡’Arbitration Act de 1996. Par conséquent, il n’est pas permis de tirer des
conclusions sur la question de savoir si le tribunal arbitral est d’avis que seul l’ordre
juridique du siège offre la structure nécessaire au déroulement de la procédure d’arbitrage
ou si, au contraire, il estime que la loi anglaise n’est pas la source exclusive de son pouvoir
de décider si la convention d’arbitrage contient des obligations sur le versement de la
provision sur frais. Cette deuxième hypothèse nous semble être la bonne.
Selon les arbitres, la clause compromissoire figurant dans le contrat principal est un
contrat séparé, de nature procédurale. Elle se réfère au Règlement CCI qui créé une obli¬
gation pour les parties de verser la moitié de la provision en vertu de l’article 30(3).
S’agissant d’une obligation procédurale dont la source est contractuelle (« a contract
nevertheless, giving rise to a procedural obligation »), le défaut par la défenderesse de
payer sa part de la provision crée un différend de nature contractuelle qui entre dans le
champ d’application de la clause compromissoire. Les arbitres, qui tirent leur compétence
de la clause compromissoire peuvent par conséquent être compétents pour trancher un
différend sur la paiement de la provision.
Ceci étant, peuvent-ils se prononcer sur la question sous la forme d’une sentence arbi¬
trale? Après avoir constaté que le Règlement CCI est muet sur ce point, les arbitres
observent que, la Cour international d’arbitrage de la CCI a approuvé dans la pratique
de telles sentences. Par ailleurs, ils constatent, doctrine à l’appui, qu’ils sont compétents
pour rendre une sentence en faveur de la partie non défaillante dès lors qu’une obligation,
même de caractère procédurale, a été violée.
On sait qu’il existe dans la pratique deux écoles pour aborder la question de la compé¬
tence des arbitres pour rendre des décisions concernant la défaillance d’une partie de verser
sa part de la provision: d’une part, l’approche ‘contractuelle’ qui tend à montrer que
l’article 30(3) du Règlement CCI crée une obligation matérielle entre les parties, et
d’autre part, l’approche ‘administrative’ qui laisse penser que les provisions sont de la
compétence de la CCI. Ainsi l’obligation pour une partie de verser une provision est une
obligation vis-à-vis de la CCI et non pas à l’égard de l’autre partie. De ce fait les arbitres
agissent plutôt dans le cadre de l’article 23(1) du Règlement CCI et doivent ordonner une
mesure provisoire concernant la provision, mais pas une décision basée sur une quelconque
violation d’une obligation entre les parties (plus généralement, et pour des explications plus
détaillées, V. MM. Fadlallah et Secomb, op. cit. p. 57 et 63 ainsi que nos obs. sous l'affaire
CCI «° 10526: JDI 2001, p. 1184).
M. Secomb suggère dans son article qu’il peut y avoir une troisième approche: l’insti¬
tution CCI dispose d'un pouvoir exclusif sur le plan financier de l’affaire. Si cette approche
devait être suivie, toutes les décisions relatives aux paiements des provisions relèveraient
de la compétence exclusive de la Cour internationale d’arbitrage de la CCI, et non pas des
arbitres.
Nous ne partageons pas cette idée qui soulève des difficultés au niveau de l’exécution
d’une décision prise par la Cour internationale d’arbitrage de la CCI. Celle-ci ne pouvant
pas rendre de décisions coercitives, ses pouvoirs sont limités aux mesures administratives
tendant à organiser les procédures d’arbitrage. Ces décisions ne peuvent pas, par consé¬
quent, être exécutées par référence à la Convention de New York de 1958 ou autres
conventions.
Dès lors, il nous semble plus opportun de modifier le Règlement CCI sur cette question
pour clarifier le pouvoir des arbitres. Il serait tout à fait envisageable de leur attribuer, par
exemple, expressément le pouvoir de rendre des décisions en cas de défaillance d’une des
parties dans le cadre du paiement de la provision. On n’aurait plus alors à se demander si le
pouvoir des arbitres est de nature contractuelle ou pas, ou s’il relève des mesures provi¬
soires. Leur compétence découlerait directement du Règlement CCI.

. TT-7P
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Contrairement à la majorité qui s’est exprimée dans la doctrine, nous pensons qu’il
existe un doute sur le bien-fondé de l’approche contractuelle. Les arbitres sont nommés
pour trancher des différends sur le fond, sur des questions matérielles. L’organisation de la
procédure arbitrale peut engendrer des problèmes financiers qui sont d’une toute autre
nature. Il s’agit d’un problème administratif qui n’est pas visé par la clause compromis¬
soire. En effet, s’il est exact que les parties, en souscrivant la clause d’arbitrage CCI,
s’engagent, l’une envers l’autre, à tout faire pour assurer le déroulement normal de la
procédure arbitrale (V. Fadlallah, op. cit.), y compris à verser sa part de la provision,
cet engagement relève plutôt de l’obligation de bonne foi. Or, on peut se poser la question
de savoir si l’engagement visé est couvert par la formule habituelle que l’on trouve gén¬
éralement dans les contrats, à savoir « tous différends découlant du présent contrat ou en
relation avec celui-ci »? Nous ne le pensons guère car le Règlement CCI prévoit que le
tribunal arbitral instruit « la cause » (art. 20(1)) et rend une sentence. Le versement d’un
?' part de la provision ne fait pas partie de la cause. Le Règlement CCI prévoit des pouvoirs
pour les arbitres et la Cour pour pallier les difficultés pendant l’arbitrage (nomination,
récusation, remplacement des arbitres, choix de règles de procédure, langue, ou droit
applicable) et réagir contre les manœuvres dilatoires d’une des parties (notamment en
fixant un calendrier procédural, des dates d’audience ou encore en autorisant ou non
des demandes nouvelles, etc.). Rien n’est prévu par contre en ce qui concerne le pouvoir
d’ordonner à une partie de verser sa part de provision.
—
II. Le second volet de cette sentence arbitrale concerne le rôle que doit jouer l’ordre
public du pays de l’une des parties, quand les parties ont convenu de l’application du droit
matériel du pays de l’autre partie. Comme indiqué par le Professeur J.-B. Racine
(L’arbitrage commercial international et l’ordre public: LGDJ 1999, p. 233), l’arbitre
doit satisfaire avant tout les besoins du commerce international. Or, l’ordre public pose
des limites à la liberté des agents économiques. Une contradiction peut donc naître entre
l’ordre public et l’esprit du droit du commerce international fondé sur la satisfaction des
besoins du commerce international.
La sentence commentée soulève la question de savoir à quel titre, les arbitres, qui
tiennent leurs pouvoirs de la volonté des parties, seraient en droit d’écarter la loi coréennne,
choisie par les parties, en faveur de l’ordre public omanien, invoqué par la demanderesse.
Quelles sources les arbitres emploient-ils pour déterminer si l’impérativité de l’ordre public
omanien est telle qu’elle l’emporterait sur la loi coréenne? La sentence aborde indirecte¬
ment aussi la question de l’importance donnée au siège de l’arbitrage qui, selon le
Professeur Th. Clay (Le siège de l’arbitrage international entre « ordem » et « progresso
»: Gaz. Pal. 29 juin 2008, p. 20), reflète la conception que l’on se fait de l’arbitrage. « Plus
le siège entraîne de conséquences juridiques, plus on nationalise l’arbitrage . . . moins le
siège est perçu comme élément déterminant, plus l’arbitrage devient véritablement
international » (op. cit. p. 21). Quel rôle les arbitres attribuent-ils donc au siège quand
ils tranchent l’applicabilité éventuelle d’un ordre public étranger?
Sans réduire le rôle du siège à une peau de chagrin, l’approche du tribunal arbitral nous
semble bien plus transnationale.
À première vue, cette approche peut surprendre car rien dans le contrat ne laisse penser
qu’un autre droit que celui fixé par les parties puisse s’appliquer. Les arbitres auraient pu se
contenter de constater le choix des parties en faveur du droit coréen sans chercher plu s loin.
Il est tout à fait naturel qu’ils respectent la volonté des parties, d’autant plus que le choix de
Londres comme le lieu d’arbitrage entraîne l’application des dispositions de l’Arbitration
Act 1996. Or l’article 46 de l’Arbitration Act reconnaît la validité du choix des parties
quant au droit applicable sans aucune référence à l’ordre public. L’article 46 est muet sur ce
point et il n’ouvre la porte à l’application d’aucun ordre public quelconque, qu’il s’agisse
de l’ordre public du siège, du pays de l’une des parties ou du lieu supposé de l’exécution de

la sentence. (« The Arbitral Tribunal shall decide the dispute in accordance with the law
chosen by the parties as applicable with the substance of the dispute or, if the parties so
agree, in accordance with such other considerations as agreed by them or determined by
the tribunal »).
Les arbitres se sont pourtant montrés généreux et magnanimes dans l’interprétation de
l’Arbitration Act. Ils considèrent que cette loi accepte implicitement l’exception basée sur
l’ordre public, ce qui est le cas, à leur avis, dans tous les systèmes de droit international
privé (V. supra § 322).
Les arbitres se demandent ensuite quel est l’ordre public susceptible de s’appliquer. Ils y
répondent en indiquant que ce serait nécessairement l’ordre public anglais et non pas
omanien (V. supra § 323). Ils ne motivent pas toutefois clairement cette décision.
Ne serait-il pas alors permis de penser que c’est un ordre public autre que celui du siège
qui pourrait s’appliquer? Il est vrai que les tribunaux anglais n’appliquent pas la
Convention de Rome de 1980 sur la loi applicable aux obligations contractuelles (supra
§ 321) qui permet de donner effet à l’ordre public d’un pays tiers (« .. . effect may be given
to the mandatory rules of the law of another country with which the situation has a close
connection, if and in so far as, under the law of the latter country, those rules must be
applied whatever the law applicable to the contract. » (Conv. Rome, art. 7)). Mais est-ce
une obligation pour les arbitres siégeant à Londres d’être aussi stricts que les magistrats
anglais? Ne serait-il pas possible de penser plutôt que les arbitres devraient appliquer
l’ordre public omanien s’ils estiment que son objet et les conséquences de son application
sont légitimes? Le rattachement de l’ordre public omanien avec la cause du contrat de
distribution ne fait pas de doute même si cet ordre public n’appartient pas à la lex
contractus.
Tout en restants fidèles à leur approche transnationale, les arbitres ont analysé l’ordre
public interne omanien pour rejeter finalement l’argument du distributeur selon lequel cet
ordre public serait violé par le fabricant.
Ils déclarent ensuite de manière tout à fait intéressante, que le seul ordre public qui
pourrait les contraindre à appliquer un autre droit que celui convenu entre les parties est
l’ordre public véritablement transnational (« of a truly transnational nature », supra § 335;
« worthy of protection in a supranational perspective », supra § 336). Les arbitres n’ont pas
cherché à justifier ce choix par application d’une règle de conflit anglaise. Ils ne se sont
référés à aucun ordre juridique, qu’il s’agisse de celui du siège de l’arbitrage ou d’un autre
pays. Cette démarche n’est pas étonnante car elle est caractéristique de l’approche des «
transnationalistes ».
En conclusion, la décision des arbitres reste fidèle à la tendance actuelle dans l’arbitrage
des affaires internationales qui est de s’attacher aux normes généralement acceptées dans la
communauté internationale, et non dans la volonté d’un seul état, pour s’écarter de la lex
contractus.
C. T.-N.
Demandes nouvelles

a

(original en langue anglaise)
I. — Contrats de distribution. — Droit français. — Résiliation. _

Conditions. — Bonne foi.
IL — Contrat de Distribution. — Résiliation illicite. — Effet.
III. — Dommages. — Quantification. — Damnum emergens et lucrum
cessans. — « Gross Profit ».
ar IV. — Procédure arbitrale. — Frais de l’arbitrage.
:
Un Tribunal arbitral se prononce sur la résiliation d’un contrat de distribution et, la
jugeant fautive, sur la réparation du dommage souffert par le distributeur.
Un tribunal arbitral de trois membres, siégeant à Paris, était saisi d’un litige opposant
une société chypriote [X] à une société française [Y] et résultant de la résiliation par la
seconde du contrat de distribution exclusive la liant à la première.
Aux termes de ce contrat, [X] était le distributeur exclusif des produits de [Y] sur le
territoire chypriote et s’interdisait d’y distribuer des produits identiques ou similaires. Le
contrat, conclu depuis plus de 9 ans au moment de la résiliation, était d’une durée d’un an
tacitement reconductible par période d’une année sauf dénonciation donnée au moins 3
mois avant la date d’échéance. Le contrat était soumis au droit français.
Reprochant à [X] d’avoir renouvelé en 2004, aux frais de [X], une campagne promo¬
tionnelle initialement décidée d’un commun accord par les parties pour l’année 2003 mais
qu’elle lui avait donné instruction de ne pas poursuivre, [Y] lui a notifié qu’elle résiliait le
contrat avec un préavis de quelques jours. [X] considérait pour sa part qu’elle avait reçu
l’accord de [Y] et lui avait vainement demandé de revenir sur la résiliation avant de lui
notifier formellement une demande d’indemnisation pour résiliation anticipée.
Devant le tribunal arbitral, [X] soutenait que la résiliation soudaine, sans préavis, du
contrat violait l’article L. 442.6.5° du Code de commerce et qu’au regard de la durée de la
— —
relation des parties environ dix ans un préavis d’au moins douze mois aurait dû lui
être consenti. Elle ajoutait que [Y] lui avait donné préalablement son accord pour pour¬
suivre la campagne à ses frais par e-mail et qu’en tout état de cause, la résiliation n’était pas
conforme à l’article 14.1 du contrat qui n’autorisait la résiliation que dans l’hypothèse
suivante: « any failure of the Distributor to perform its obligations thereunder which
failure persists for thirty (30) days after written notice of it by [Y] », puisqu’elle n’ avait
reçu aucune mise en demeure. En outre, [Y] aurait résilié de mauvaise foi, invoquant un
motif futile mais en fait parce qu’elle était en cours de négociation avec un autre distri¬
buteur, alors que [X] avait toute raison de penser que son contrat serait renouvelé pour un
an.
Contestant le sens donné par [X] à son e-mail, [Y] soutenait qu’il avait pour seul objet
d’autoriser le prolongement de la campagne précédente de quelques mois, aux frais de [X],
pas son renouvellement. Selon [Y], il ne pouvait être interprété par [X] en ce sens alors
qu’elle lui avait clairement fait savoir et ce à plusieurs reprises qu’elle s’opposait à ce
qu’une nouvelle campagne soit lancée. Son renouvellement violait donc les dispositions
contractuelles relatives à l’approbation en commun de la politique marketing et à la pro¬
hibition de l’usage par [X] des marques et autres droits de propriété intellectuelle de [Y]
sans son accord préalable écrit. Il constituait donc une faute grave l’exemptant du délai de

prévenance contractuel de trente jours. Au demeurant, [X] connaissant depuis longtemps la
position de [Y], son refus de s’y soumettre avait duré plus de trente jours.
Dans un premier temps de sa décision, le tribunal arbitral se penche sur la validité de la
résiliation dans les termes suivants:
« Le Tribunal arbitral est d’avis qu 'au préalable, il doit statuer sur la licéité de la
résiliation de la Convention. Le caractère soudain de la résiliation ne justifie une
demande à part entière que si la résiliation est jugée légitime; [X] a implicitement
admis une telle analyse, en incluant des dommages-intérêts pour résiliation sou¬
daine dans sa demande de dommages-intérêts au titre de la résiliation abusive du
contrat ( . . . ).
La Convention de Distribution est un contrat d’un an, renouvelable automati¬
quement pour une période de douze mois, à moins que les parties aient manifesté
leur intention de ne pas renouveler la Convention, quatre-vingt-dix jours avant la
date de résiliation (le 31 décembre de chaque année) (art. 13). De plus, cette
Convention peut être résiliée plus tôt par [Y] dans certaines circonstances,
parmi laquelle « any failure of the Distributor to perform its obligations thereunder
which failure persists for thirty (30) days after written notice of it by [Y] » Dans [la
lettre de résiliation], [Y] a invoqué la violation par [X] de l’article 12-2 et 8-1 de la
Convention de Distribution, en lançant une campagne promotionnelle le 1er avril
2004, contrairement à la politique des ventes et de marketing de [Y] (qui avait été
portée à la connaissance de [X] à plusieurs reprises) et sans l’approbation pré¬
alable de [Y],
Les parties ont discuté en détail le caractère matériel d’une telle infraction. [X]
a prétendu qu’il avait été autorisé à monter une telle campagne à ses propres coûts
et se base sur le message électronique, envoyé par [A, un représentant de Y] à [B, le
responsable de l’agence de publicité en charge de la campagne], en réponse à un
e-mail de la même date mais envoyé plus tôt.
[ÿÿÿJ
Selon le Tribunal, il est parfaitement possible que [X] ait compris le message de
[A] comme un accord pour engager une nouvelle campagne de promotion, financée
par [X], bien que [Y, en la personne de A] n’avait pas réellement l’intention
d’approuver une telle campagne. Mais, ayant à faire à une prétendue inexécution
de la convention par [X], le tribunal considère que les termes du message de [A], le
fait qu’il ait été envoyé peu de temps après le message de [B] demandant une
réponse rapide, le fait qu’un accord ait été donné à l’agence de publicité en charge
de la campagne, et le fait qu’il traitait de la question du financement de la cam¬
pagne pouvait raisonnablement laisser penser à [X] que [Y] approuvait la pour¬
suite de la campagne de promotion. Dans ce contexte, ¡X] était en droit
d’interpréter ce message comme un accord de la nouvelle campagne de promotion;
et elle a pu le faire de bonne foi.
Le tribunal arrive aussi à cette conclusion en se fondant sur le comportement de
[A] lorsqu’il a découvert que la campagne a été mise en place. A l’audience, [A] a
expliqué qu’il avait découvert cette prétendue inexécution manifeste de la conven¬
tion durant sa visite à Chypre début avril 2004, . . . , et qu’il avait soulevé avec les
représentants de [X] la question de savoir pourquoi la campagne avait été mise en
place alors qu"elle n’avait pas été approuvée par [Y],
Il n’a, cependant, pas indiqué oralement ou par écrit à [C], représentant de [X],
que [Y] considérait que [X] violait la Convention en poursuivant la campagne
promotionnelle. La seule et première réaction de [Y] est la lettre de résiliation du 3
mai 2004. Ainsi, [Y] n’a pas permis des échanges de bonne foi qui doivent inter¬
venir entre les parties afin de résoudre ce malentendu.
De plus, le comportement de [Y] est en violation directe avec l’article ¡4.1.(b)
de la Convention. Rien n’empêchait [Y] d'envoyer une note à ¡X] lui demandant de
mettre immédiatement fin à la campagne de promotion et lui notifiant la résiliation

JJ*ÿ

¿e /a Convention au cas où la prétendue inexécution se poursuivrait
au-delà de
trente jours.
Il est vrai que dans le système juridique français, il a été établi, sur le fondement
de l’article 1145 du Code civil, qu 'un préavis n est pas nécessaire quand le débit¬
—
eur est en violation d’une obligation de ne pas faire en opposition à une obli¬
gation défaire. Mais cette règle n'est pas impérative. Elle ne s’applique pas au vu
de la disposition contractuelle claire de l’article 14.1.0)) de la Convention, selon
laquelle chaque manquement à l’exécution d'une obligation ne peut être invoqué
comme motif de résiliation anticipée que si elle perdure au-delà de trente jours
après notification écrite du manquement à l'exécution par [Y],
Le tribunal arbitral conclut que [Y] n'était pas en droit de résilier prématuré¬
ment la Convention en vertu de l'article 14 de celle-ci.
-i: [Y] compte alternativement sur le droit pour le créancier de résilier unilatér¬
T alement un contrat, à ses propres risques, du fait d'un comportement grave de la
part du débiteur. Il est vrai qu‘en droit français, ce droit a largement été reconnu
par les tribunaux, en plus des dispositions contractuelles (clauses de résiliation).
Mais le tribunal arbitral est d 'avis, au vu des circonstances décrites supra (...),
que le comportement de [X] ne peut être qualifié de « comportement grave », en
violation des devoirs fondamentaux d’une partie à la Convention de Distribution.
[...J
Le tribunal arbitral est parvenu à la conclusion que la résiliation de la con¬
vention par [Y], devenue effective le ( ... ), est illicite ».
Ayant conclu à l’illicéité de la résiliation, le tribunal arbitral décide que « [Y]
devrait être condamné à indemniser le dommage souffert par [X] du fait de la
résiliation anticipée du contrat, y inclus les dommages nés de sa résiliation brutale,
sans préavis suffisant ».
Il écarte l’application d’une clause stipulant que « upon termination or expira¬
tion of this Agreement, for whatever reason neither party shall be liable for com¬
pensation or consequential damages of any kind ...» au motif suivant:
« Le tribunal arbitral est d 'avis que cette disposition fait uniquement référence à
une résiliation licite fondée sur les articles 13-2 (a) ou 14 de la Convention. Elle ne
s'applique pas à une résiliation illicite, comme en l 'espèce. Le tribunal arbitral est
conduit à cette conclusion par les principes d’interprétation des contrats en droit
français, particulièrement le principe d’interprétation pro validitatem (art. 1157
du Code civil): au cas où les dispositions de l’article 15, en particulier les mots
« quelqu 'en soit la raison », se référeraient aussi à une résiliation illicite, cette
clause devrait être qualifiée de clause de non-responsabilité, qui ne s'applique pas
en cas de faute lourde. Le tribunal arbitral est d’avis que le comportement de [Y],
dans sa lettre du 3 mai 2004 est de cette nature ».
Quant au quantum, [X] soutenait que par application de l’article L. 442.6.5 du Code de
commerce, [Y] ne pouvait résilier le contrat sans respecter un préavis minimum d’un an, et
cela indépendamment du préavis contractuel de trois mois stipulé au contrat. Si [Y] avait
notifié sa décision de ne pas renouveler le contrat à son échéance, au lieu de le résilier à tort,
il aurait donc pris fin un an après ladite échéance. Elle demandait une somme équivalente
en bénéfice brut (« gross profit ») qu’elle aurait réalisée jusqu’à cette date, plus le rembour¬
sement du coût de la campagne promotionnelle, le remboursement des frais de voyage de
ses représentants liés à la résiliation et une indemnité pour atteinte à son image.
[Y] répondait qu’un préavis de trois mois, pour un contrat annuel, est conforme aux
exigences de l’article L. 442.6.5°, Elle ajoutait qu’en admettant que la résiliation d’avril
était infondée et n’avait pas d’effet immédiat, le contrat devrait prendre fin au plus tard à
son échéance, le 31 décembre. Elle contestait également l’évaluation du dommage de [X]
sur la base de son bénéfice brut, sans en déduire les charges supportées par [X] dans le cadre
de ses opérations commerciales normales ainsi que le calcul de la marge commerciale
Reprinted from the Cluoet 853

retenue par les experts de [X], Elle soutenait par ailleurs que les autres demandes de [X]
n’étaient pas établies.
Le tribunal arbitral tranche dans les termes suivants:
« Conformément aux déterminations du tribunal, [Y] doit dédommager [X] pour
les dommages subis par la résiliation illicite de la convention par [Y]. Conformé¬
ment à l’article 1149 du Code civil, les dommages sont calculés sur la base des
bénéfices dont il a été privé (« lucrum cessans ») et des pertes subies (« damnum
emergens ») en conséquence directe de la résiliation de la Convention.
Sur le premier point, le tribunal doit déterminer quels auraient été les bénéfices
de [X] si la Convention n'avait pas été résiliée à tort par [Y]. La première question
concerne la durée habituelle de la Convention. Selon l’article 13 de la Convention
de Distribution, le contrat aurait pu ne pas être renouvelé après le 31 décembre
2004. Contrairement à ce que prétend [X], le tribunal est d 'avis que [X] ne pouvait
compter sur la promesse de [Y] de renouveler le contrat après le 31 décembre
2004; le fait que le contrat a été à maintes reprises renouvelé par le passé, et la
satisfaction présumée de [Y], ne sont pas des raisons suffisantes pour appuyer cette
croyance.
[X] affirme que le préavis de 3 mois stipulé à l 'article 13.2.(a) de la Convention
n 'est pas conforme avec l'article L. 442-6-5° du Code de Commerce, une dispo¬
sition obligatoire qui devrait s 'appliquer en dépit des dispositions contractuelles.
Mais le tribunal observe que [Y] ne se fondait pas sur l 'article13-2 (a). L 'argument
de [X] n 'est pas pertinent pour la résolution du litige.
Le tribunal est d’avis, au vu de la notification de résiliation adressée par [Y] le 3
mai 2004 que [X] n 'était pas en droit de renouveler le contrat après le 31 décembre
2004. Cette notification, bien qu 'illicite pour une résiliation immédiate, est néan¬
moins valide pour notifier l 'intention de ne pas renouveler la Convention à la date
d’expiration de la période en cours, i.e. le 31 décembre 2004. Un préavis de sept
mois et demi est conforme aux exigences de l'article L. 442-6-5° du Code de
commerce. Aussi, le tribunal arbitral décide que [X] est autorisé à demander
les bénéfices qu 'elle aurait réalisés en exécutant la Convention du 14 mai au
31 décembre 2004.
Ces bénéfices sont égaux au bénéfice brut du Distributeur en cas d'exécution de
la Convention de Distribution. Le tribunal arbitral est d’avis que, afin de calculer
le bénéfice brut qu'un distributeur aurait pu réaliser si le contrat n 'avait pas été
résilié, il faut se référer au bénéfice moyen brut sur 2 ans avant la résiliation ».
Invoquant ses résultats en croissance au moment de la résiliation, pi] soutenait cepen¬
dant que sa marge annuelle aurait été nettement supérieure à celle réalisée les années
précédentes.
Estimant que [X] ne prouvait pas que ces bons résultats perdureraient tout au long de
l’année, le tribunal refuse de se fonder uniquement sur la marge prévisionnelle de l’année
de résiliation mais en tient néanmoins compte en calculant la marge commerciale men¬
suelle de [X] comme la moyenne de sa marge sur les deux ans précédant la résiliation, plus
sa marge prévisionnelle l’année de la résiliation. Il condamne [Y] à lui payer une indemnité
égale à cette moyenne mensuelle sur les sept mois et demi courant depuis la résiliation
effective jusqu’à l’échéance du contrat
Il rejette la demande tendant au remboursement de la campagne promotionnelle, [X]
étant indemnisé sur la base de sa marge brute et ayant accepté de financer la campagne. Il
rejette également la demande relative à l’atteinte de l’image commerciale dont il juge
qu’elle n’est pas établie.
Enfin, le tribunal condamne [Y] à rembourser à [X] les frais de voyage de ses repré¬
sentants liés à la résiliation ainsi que l’intégralité de ses frais de conseil dans la procédure
854 Reprinted (rom the Clunet

: —
ü
arbitrale dont il écrit qu’ils sont « la conséquence directe de la résiliation du contrat par
[Y] ». Il en va de même des frais d’arbitrage; le tribunal estime cependant que leur montant
dépend pour une part de celui des demandes de [X] qu’il a jugées partiellement excessives.
Il n’en met donc que deux tiers à la charge de [Y] et le solde à celle de [X],
— —
NOTE. I. Dans la présente sentence, le tribunal arbitral décide que la résiliation
d’un contrat de distribution est illicite après une analyse minutieuse des faits de l’espèce qui
ne peut qu’être approuvée. Le tribunal constate en effet non seulement que les circon¬
stances factuelles invoquées par le fournisseur — le renouvellement par le distributeur
d’une campagne promotionnelle en dépit de son opposition — ne sont pas établies de
manière définitive, le distributeur pouvant avoir mal interprété sa position, mais encore
que le fournisseur, lorsqu’il a découvert cette prétendue faute contractuelle, n’a pas pris les
mesures nécessaires pour tenter de résoudre les difficultés en engageant une discussion de
y bonne foi avec le distributeur.
:<
Implicitement, ce que le tribunal reproche au fournisseur est donc de ne pas s’être
concerté avec le distributeur quand il a constaté le désaccord qui les opposait.
L’existence d’une obligation de coopération ou de concertation de bonne foi n’est pas
nouvelle dans l’arbitrage commercial international (k titre d’exemple, V. Sentence CCI
n° 11776: JDI 2006, p. 1460, note Y. Derains) et se rapproche de l’exigence d’exécution de
bonne foi de ses obligations (Sentence n° 6317: JDI 2003, p. 1156, note S. Jarvin).
—
II. Pour autant, la résiliation, si elle est illicite, n’est pas sans effet. Simplement, elle
prend effet à la date d’échéance contractuelle et non à la date pour laquelle elle a été
notifiée, sous réserve que le préavis ainsi donné au cocontractant soit suffisant au regard
de l’article L. 442-6-5° qui dispose qu’est engagée la responsabilité du commerçant qui
rompt « brutalement, ....
une relation commerciale établie, sans préavis écrit tenant
.
compte de la durée de la relation commerciale. . ». En l’espèce, un préavis de sept
mois pour une relation contractuelle s’étant prolongée sur une période de neuf ans
apparaît suffisant au tribunal arbitral.
—
III. Le tribunal rappelle que le dommage indemnisé consiste dans les gains dont le
créancier a été privé et dans saperte de profits. Il se fonde sur l’article 1149 du Code civil, le
—
droit fiançais étant applicable au contrat litigieux. La solution qui repose sur le principe
—
de réparation intégrale des dommages est traditionnelle (V. sur la question J. Ortscheidt,
La réparation du dommage dans l 'arbitrage commercial international: Dalloz 2001, p. 61
et s.) et trouve de nombreuses applications dans l’arbitrage commercial international,
notamment sur le fondement des Principes UNIDROIT (Sentence rendue dans l’affaire
—
n° 11849: Yearbook Commercial Arbitration XXXII (2007), p. 60. Sentence rendue dans
l'affaire «° 10422: JDI 2003, p. 1142, note E. Jolivet) aussi bien que dans l’arbitrage
d’investissements (Sentence CIRDI Amco Asia et autres d République d'Indonésie,
20 nov. 1984: JDI 1987, p. 145, obs. E. Gaillard).
Le principe n’est toutefois pas d’ordre public et les tribunaux arbitraux n’hésitent pas à
faire application des clauses limitatives ou exonératoires de responsabilité que les parties
peuvent avoir insérées dans leurs contrats (V. Sentence dans l’affaire «° 7139 rendue en
1995: JDI 2004, p. 1272, note Y. Derains et B. Derains et la jurisprudence arbitrale citée).
Il est donc intéressant que le tribunal arbitral, dans la présente affaire, refuse de faire
application d’une clause stipulant que « upon termination . .. of this Agreement, for
whatever reason neither party shall be liable for compensation or consequential damages
of any kind». En effet, exonérer le fournisseur de toute responsabilité en l’espèce, alors
qu’il pouvait sauver le contrat en exigeant l’arrêt de la campagne litigieuse, serait revenu à
admettre qu’il puisse mettre fin au contrat à tout moment et aurait retiré toute portée au
choix des parties de s’engager dans ce contrat à durée indéterminée, rendant l’obligation du
fournisseur simplement potestative. Le raisonnement par lequel le tribunal y parvient

semble cependant discutable. Il rappelle que les clauses de non responsabilité sont écartées
en cas de faute lourde. La solution ne fait aucun doute en droit français qui assimile à cet
égard la faute lourde à la faute dolosive (F, Terré, Ph. Simler et Y. Lequette, Droit civil: tes
obligations: Dalloz 2009, § 615) et trouve un écho dans certaines sentences commerciales
internationales (Sentence n° 7139 rendue dans l 'affaire précitée). Le tribunal ajoute que la
résiliation abusive du Contrat constitue en l’espèce une faute lourde. Toutefois, on peut
regretter qu’il ne motive pas cette qualification. Il est vrai qu’il n’était pas nécessaire de le
faire puisque le tribunal n’écarte pas la clause parce qu’elle serait inapplicable en présence
d’une faute lourde mais au moyen d’une interprétation de la volonté des parties: la clause ne
viserait que les résiliations justifiées du contrat parce qu’à défaut elle serait nulle puisque
susceptible d’exonérer le fournisseur en cas de faute lourde. Mais on peut se demander si
toute résiliation injustifiée du contrat constitue nécessairement une faute dolosive. N’était-
il pas plus simple de déclarer la clause inapplicable en l’espèce au regard de la gravité de la
faute du fournisseur?
La sentence surprend également lorsqu’elle accepte l’identification faite par la deman¬
deresse entre profit perdu et marge brute (« gross profit »). Ainsi que le note un arbitre,
faisant application des Principes UNIDROIT, « le bénéfice . . . perdu à cause de l’inter¬
ruption du contrat et par conséquent des livraisons . . . n 'est pas la marge brute sur le prix
de vente, mais le bénéfice net après déduction de tous les frais encourus » (V. Sentence n°
10422 préc. et la jurisprudence arbitrale invoquée par l'arbitre). En l’espèce, la défender¬
esse faisait valoir que devaient être déduites des sommes demandées les dépenses exposées
dans le cadre du cours normal des affaires de la demanderesse. Le tribunal ne fait pas droit à
cet argument sans s’en expliquer. On note toutefois qu’il refuse de rembourser à la deman¬
deresse les coûts de la campagne promotionnelle, notamment parce qu’il l’indemnise sur la
base de son profit brut, ce qui revient de fait à déduire ces coûts des revenus perdus.
D’autres tribunaux arbitraux ont adopté une position différente dans des cas similaires,
décidant d’évaluer discrétionnairement la marge nette réalisée par le distributeur évincé
parce que les preuves mises à leur disposition ne leur permettaient pas de calculer plus
précisément (Sentence n° 10422, préc.).
—
IV. Quant aux frais d’arbitrage, il est fréquemment rappelé que le tribunal arbitral
jouit de la plus grande liberté pour les répartir entre les parties (notes E. Silva-Romero sous
Sentences rendues dans les affaires n° 10671: JDI 2005, p. 1269 et n° 11426: JDI 2006,
—
p. 1443. note Y. Derains sous Sentence rendue dans l’affaire n° 11776: JDI 2006, p. 1460.
— note F. Mantilla Serrano sous Sentence rendue dans l’affaire n° 12305: JDI 2009, p.
1356). En effet, l’article 31(3) du Règlement d’arbitrage stipule que « la sentence finale du
tribunal arbitral liquide les frais de l’arbitrage et décide à laquelle des parties le paiement
en incombe ou dans quelle proportion ils sont partagés entre elles », sans fixer aucune règle
de répartition à l’arbitre ni lui proposer aucune ligne directrice. La seule obligation qui
s’impose à lui est de motiver sa décision conformément à l’article 25(2).
En fonction de leur culture juridique et des circonstances de l’espèce, les arbitres sont
donc amenés à prendre en considération et à adopter les éléments les plus variés dans
l’exercice de leur pouvoir d’appréciation, tel que la complexité de l’affaire ou la bonne foi
des parties, que ce soit dans leurs relations, dans la position qu’elles ont défendue au fond
ou dans leur comportement procédural . Selon de nombreuses sentences toutefois, l’élément
prépondérant est le résultat de la procédure, quitte à le pondérer par d’autres considérations
(Sentence rendue dans l'affaire n° 7986: JDI 2002, p. 1071: « en général, la partie qui
succombe . . . doit supporter la totalité ou une grande partie des frais de l’arbitrage ».
Sentence rendue dans l'affaire 11426 précitée: « il est en général justifié de tenir compte —
—
dans le cadre de la décision sur les frais, surtout du résultat de la procédure, c’est-à-dire du
degré de réussite de chaque partie... ». Sentence rendue dans l’affaire 11776 précitée:
« le principe de bonne justice veut que la partie qui succombe supporte les frais de
l’arbitrage, du moins dans la proportion où la sentence donne raison à la partie adverse

LIVVî,::.
H
») et même parfois à l’écarter simplement (Sentence rendue dans l'affaire n° 12551: JDI
2007, p. 1301 note B. Derains; où le tribunal arbitral, après avoir noté qu'une partie
« n 'ayant pas gain de cause, il n 'eut pas été inhabituel de mettre tout ou la majorité
[des frais de l’arbitrage] à sa charge », condamne son adversaire au paiement de l'inté¬
gralité de ces frais en raison de son comportement lors de la naissance du litige).
La présente sentence se range manifestement dans cette catégorie, avec cependant une
double originalité. Alors qu’il est courant, sans pour autant qu’une règle puisse être établie,
que les arbitres répartissent les frais de l’arbitrage en fonction des sommes allouées et non
refusées à chaque partie, le tribunal arbitral se fonde sur la responsabilité de la défenderesse
dans la naissance du litige et la condamne à indemniser la demanderesse à hauteur de
ses frais d’avocat. Il est d’ailleurs remarquable qu’il traite la question avec celle des
dommages-intérêts et non pas dans le cadre de la répartition des frais d’arbitrage. Quant
Z à ces derniers (qu’il limite aux frais administratifs et honoraires des arbitres), le tribunal
arbitral les répartit entre les parties, à hauteur de deux tiers seulement pour la partie qui
succombe, au motif que la demanderesse n’a pas obtenu le plein de ses demandes. Cette
solution apparaît en effet équitable dès lors que ces coûts augmentent avec le montant des
demandes des parties.
K
B. D.
—
Mots-Clés: Arbitrage international Chambre de commerce internationale Contrats
de distribution
—

.-.'.'..i ::ÿ! -:-v: "
vi:.- r- «i¡>- •
■i
1 !
Sentence fínate dans l’affaire CCI n° 13646 en 2007

I.
— Compétence du tribunal arbitral.
Conditions de forme. —
Art. 178(1) LDIP.
—
—
Clause compromissoire.
Écrit (oui). —Signé (non).
—
II. —Contrat. —
Droit suisse.
précontractuel agreement to agree »).
(« —
— Consensualisme. —
Accord
Caractère obligatoire (oui).
m. — Contrat. —
Droit suisse. —
Responsabilité précontractuelle («
culpa in contrahendo »).
des parties. — —
Obligation de négocier de bonne foi.
Responsabilité partagée.
Attentes —
IV. —
Contrat. —
Droit suisse. —
Convention de Vienne de 1980 des
Nations Unies sur la vente internationale de marchandises (art. 73.2). —
Résolution du contrat par crainte de contravention essentielle (non).
V. — Dommages et intérêts. —
Calcul. —
Convention de Vienne de
1980 des Nations Unies sur la vente internationale de marchandises (art. 75). —
Droit suisse (C. obligations, art. 73.1).
Cette affaire porte sur deux ventes d'éthanol par le défendeur/vendeur (une société de
droit suisse), au demandeur/acheteur (une société de droit nigérien). L’arbitrage s’est
déroulé à Genève devant un tribunal de trois membres. Le droit suisse était applicable
au fond du litige.
La première vente a donné lieu à l’établissement et à la signature par les deux parties
d’un document intitulé [Kl]. La seconde a donné lieu à l’établissement par le défendeur
d’un document intitulé [K2], que seul le défendeur a signé.
Avant la conclusion du contrat Kl, les parties avaient conclu onze contrats suivant à
chaque fois le même processus de négociation, de conclusion et d’exécution, tous rédigés
selon le même modèle, et en termes pratiquement identiques (sauf ceux relatifs aux quan¬
tités, prix, périodes de livraison, dates limites pour la confirmation des lettres de crédit et
listes des documents à présenter à la banque).
En particulier chaque contrat comportait un article 14, ainsi libellé:
14. Arbitration & Applicable law. AU disputes arising in connection with the pre¬
sent contract shall be finally settled, provided that they are not settled in an ami¬
cable way, under the Rules of Conciliation and Arbitration of the International
Chamber of Commerce by one or more arbitrators appointed in accordance with
the said Rules.
The arbitration will take place in the English language, in Geneva, Switzerland.
The competence of common Courts of Justice is excluded.
This contract is construed and will be interpreted according to the Swiss law. »
Les documents Kl et K2 contiennent tous deux cette clause.
Le contrat Kl s’est matérialisé par écrit. Il avait pour origine un accord verbal négocié
aux mois d’octobre et novembre et confirmé par un courriel du 18 novembre de la même
année. Après quelques rectifications, le contrat fut signé par les parties. Il prévoyait la
fourniture d’un volume de 12 000 à 14 000 m3 d’éthanol à l’option du demandeur.

Le premier chargement, de 8 000 m3, donna Heu à des difficultés relatives tant à la
tardiveté de la confirmation des lettres de crédit qu’à leur paiement. Pour le second charge¬
ment, de 4 000 m3, le défendeur a cherché à modifier les conditions de paiement. Le
demandeur protesta contre cette modification unilatéralement imposée du contrat et insista
sur la nécessité de respecter le contrat tel que signé. Un échange de courriels s’ensuivit;
chaque partie resta sur sa position, et le second lot ne fut jamais livré.
Les accords K2 n’ont pas donné lieu à la signature d’un contrat proprement dit, comme
les parties en avaient l’habitude. En effet, un premier accord intervint en vue de la vente de
trois lots et fut suivi d’un accord pour trois lots supplémentaires. Aucune des parties n’a
contesté qu’un accord fût intervenu sur le nombre (six) de lots d’éthanol à livrer. Seul le
volume de ces lots a fait l’objet d’un désaccord, le demandeur alléguant que le volume de
chaque lot était de 6 000 à 8 000 m3 (à l’option du demandeur) et le défendeur soutenant que
ce volume avait été fixé pour chaque lot à 6 500 m3. Un document signé par le défendeur a
été envoyé au demandeur le 16 juin. Ce document faisant état de lots de 6 500 m3, le
demandeur demanda des modifications à cet égard. Le défendeur refusa les modifications
et déclara le contrat K2 « nul et non avenu ». Aucun lot ne fut livré au titre des accords dans
le cadre du contrat K2.
Les demandes du demandeur sont fondées, pour une partie, sur la violation alléguée du
contrat Kl , et pour une autre partie, sur la violation alléguée du contrat K2. Dans les deux
cas le demandeur considère qu’il existait un contrat de vente que le défendeur n’a pas
exécuté.
Analyse du tribunal arbitral
Sur la compétence, le tribunal considère:
« Il n’existe cependant aucun doute dans l 'esprit du Tribunal arbitral sur le fait que
le contrat dont les bases étaient ainsi précisées serait régi par les clauses usuelles
entre les parties, et que l 'écrit qui devait le formaliser (selon les termes du courriel
du 8 mai 2004: « contract to follow ») comporterait ces clauses. Parmi celles-ci
devait donc figurer, en particulier, la clause compromissoire incluse dans chacun
des douze contrats standards antérieurement conclus entre les parties.
Dans la mesure où les accords intervenus entre les parties et partiellement
matérialisés par le courriel du 8 mai ( ... ) constituaient (...) des contrats
véritables, créateurs d'obligations, et étaient susceptibles de donner naissance à
des litiges au cas où l'écrit promis par le vendeur ne serait pas établi, ou le serait
dans des termes qui ne conviendraient pas à l 'acheteur - ce qui s'est effectivement
produit — le Tribunal doit identifier la juridiction qui, dans la commune intention
des parties (ou, à défaut, dans l'intention de personnes raisonnables), a compé¬
tence pour connaître de tels litiges. Il serait, à cet égard, totalement déraisonnable
d’imaginer que les parties aient voulu distinguer les litiges nés avant l’établisse¬
ment de la forme finale du contrat, qui relèveraient de la compétence des tribunaux
étatiques nigérians ou suisses, de ceta qui surgiraient éventuellement à propos de
l 'exécution du contrat formalisé, relevant quant à eux de l 'arbitrage. Il ad 'ailleurs
été établi que les parties ne distinguaient pas radicalement la phase antérieure à
l’établissement de l’écrit de la phase postérieure à celui-ci, puisqu'il est même
arrivé que des contrats reçoivent un début d’exécution avant que l’écrit ne soit
rédigé. L'intention <jes parties était donc qu’un éventuel litige relatif à leurs
accords verbaux (partiellement confirmés par courriel) soit régi par la même
clause compromissoire que celle qui, d’une part, avait régi tous leurs accords
antérieurs et qui, d'autre part, devait être insérée dans l'écrit final concrétisant
leurs nouveaux accords.
Encore faut-il que les conditions de forme de la convention d’arbitrage posées
par le droit suisse soient respectées, puisque le siège du Tribunal arbitral est fixé en
Suisse et qu'il résulte de l’article 176 LDIP [Loi fédérale suisse de droit

Z-JZSïFLU
_
-X
' :
il
international privé] que les dispositions du chapitre relatif à l’arbitrage

international « s 'appliquent à tout arbitrage si le siège du tribunal arbitral se
trouve en Suisse et si au moins l 'une des parties n 'avait, au moment de la conclu¬
sion de la Convention d'arbitrage, ni son domicile, ni sa résidence habituelle en
Suisse ».
Aux termes de l'article 178, § 1er, de la LDIP: « Quant à la forme, la Convention
d 'arbitrage est valable si elle est passée par écrit, télégramme, télex, télécopieur ou
tout autre moyen de communication qui permet d'en établir la preuve par un texte ».
Selon la jurisprudence du Tribunal fédéral, dans un contexte international, la
signature n 'est pas requise pour la validité d 'une clause arbitrale. Il est seulement
demandé que le texte de la déclaration puisse être reçu par son destinataire dans
une forme visuelle et physiquement reproductible1. Selon la doctrine, l'accord peut
s être donné de manière indirecte2 et une acceptation tacite par l’autre partie peut
3: être valable selon les circonstances3. En d'autres termes, un véritable échange de
-s' déclarations n 'est en principe pas nécessaire, mais il suffit qu 'il résulte de l'inté¬
gralité des déclarations faites et conservées sous forme écrite que les parties
étaient bien d’accord sur la convention d’arbitrage4.
Les accords verbaux partiellement confirmés par le courriel du 8 mai (...)
impliquaient l’intention de recourir à l’arbitrage en cas de litige mais n’exprimaient
pas cette intention par écrit. Cet écrit est intervenu postérieurement: il s’agit du
document intitulé « K2 », signé par le défendeur et adressé au demandeur, dont
l’article 14 contient la clause compromissoire habituelle entre les parties.
Certes, le demandeur a refusé de signer ce document. Mais il l 'a fait en raison
des désaccords très précisément énoncés dans un courriel postérieur du défendeur.
L 'intention du demandeur n 'était pas de remettre en cause la vente, mais de voir
apporter certaines modifications, censées refléter l'accord précédent des parties.
L 'envoi de ce courriel manifeste donc clairement l'accord des parties sur tout ce
qui n'a pas fait l'objet d'une demande de modification, et en particulier sur la
clause compromissoire, dont il a été montré ci-dessus qu'elle constituait déjà une
clause tacite des accords verbaux conclus entre les parties. L 'article 14 du doc¬
ument K2 constitue donc, dans ces circonstances, le texte établissant la preuve de
la clause compromissoire, tel que le requiert l 'article 178, al. 1er, LDIP. La forme
écrite a par ailleurs été respectée par l’envoi des courriels [entre les parties]
puisque ceux-ci peuvent être imprimés3.
Le défendeur allègue que Mne D. n 'avait pas de pouvoir de représentation du
demandeur. Mais l’autorisation n’est pas liée à une forme particulière en droit
suisse, et peut se faire par acte tacite6 ainsi que par l'apparence créée dans le
monde des affaires7. Comme par son comportement tacite le demandeur a créé
l'impression que Mme D. était autorisée à communiquer les points d’accord et de
désaccord du demandeur, le défendeur ne peut invoquer l 'absence d 'un pouvoir du
1 .V. ATF ¡19. II, 394.

2. Wenger in Honsel/Vogt/Schnyder, Basler Kommentar zum schweizerischen Privatrecht: Internationales
Privatrecht, Basel 1996, art. 178, n° 15.
—
3 . Blessing, The Arbitration Agreement Its Multifold Critical Aspects in ASA Special Series n° 8, Bale
1994, paras. 8 et s.
4. Volken in Girsberger/Heini/Keller/Kren Kostkjewicz/Siehr/Vischer/Volken (éd), Zurcher Kommentar
zum IPRG, 2. éd, Zurich 2004, art. 178, n° 31.
-
5. cf. Wenger, op. cit., art. 178, n° 12. Volken, op. cit., art. 178 n° 31.
6. V. Fellmann, Berner Kommentar, Obligationenrecht, Der einfacheAuf trag, art. 394-406: Berne 1992,
art. 396, n° 124 et s.
7. Volken, op. cit., art. 178: IPRG n° 46; ATF 76, I, 352.

demandeur au profit de Af‘ D. De manière générale, il convient de souligner que

c 'est le représenté, et non pas l’autre partie contractante, qui est autorisé à faire
valoir l’absence du pouvoir du mandataire8.
Le tribunal arbitral conclut en se déclarant compétent pour statuer sur la demande visant
le contrat K2 et, pour les mêmes raisons, en déclarant que le droit suisse est applicable au
fond.
Sur le fond, le tribunal arbitral analyse d’abord les fondements des prétentions relatives
au contrat K2. Le premier fondement est l’inexécution par le défendeur de son obligation de
livrer les six lots de 6 000 à 8 000 m3 (au gré du demandeur) selon les termes des accords
intervenus verbalement. Le second fondement réside dans la violation par le défendeur de
son obligation de coopérer de bonne foi avec le demandeur pour surmonter les divergences
relatives aux volumes d’éthanol réellement convenus.
Sur l’inexécution alléguée à titre principal, le tribunal constate que « [l]es positions des
parties concordent quant à l’existence entre elles d’accords en vue de la vente de six lots
d’éthanol, accords intervenus, pour les trois premiers lots, dans les derniers jours du mois
de février ( .. .), et pour les trois derniers, dans les premiers jours du mois de mai [de la
même année] ». Toutefois, les parties sont en désaccord, d’une part sur la force obligatoire
de ces accords, d’autre part sur les volumes d’éthanol convenus. Sur la base de la preuve
apportée, le tribunal estime que le volume convenu était de 6 500 m3 par lot.
En ce qui concerne la force obligatoire des accords, le tribunal considère qu’ « [i]I est
parfaitement concevable qu’un accord verbal, valable et « binding » intervienne en vue de
la conclusion d'une vente, sans que cet accord constitue lui-même la vente, subordonnée
par les parties à la rédaction d'un écrit ». Le tribunal conclut ainsi que « le défendeur avait
l’obligation d’établir, dans un délai raisonnable compte tenu de la date prévue pour la
première livraison, le document conforme à son modèle standard, reprenant les termes des
accords verbaux, de le signer et de l’adresser au demandeur; il considère également que
celle-ci avait l’obligation de signer ce document s’il était conforme aux accords ».
Le tribunal constate qu’en adressant le document intitulé K2 au demandeur, le défendeur
a exécuté l’obligation mise à sa charge par les accords verbaux. En revanche, le refus par le
demandeur de signer ce document constitue une méconnaissance par le demandeur de ses
obligations, puisque le tribunal considère que le document écrit correspondait bien à ce qui
avait été convenu entre les parties. Par conséquent, il n’existait aucune obligation de
livraison à la charge du défendeur et la demande du demandeur en réparation du préjudice
causé par la prétendue inexécution de l’obligation de livrer est déclarée non fondée.
Sur le manquement (allégué à titre subsidiaire) aux obligations de bonne foi, le tribunal
considère tout d’abord nécessaire de confirmer sa compétence. À cet égard, le tribunal
remarque que le demandeur lorsqu’il a refusé de signer le document K2 proposé par le
défendeur « n'a pas proposé de conclure m contrat nouveau, mais a présenté une demande
de modification des termes du document K2, destinée, selon lui, à rendre le contrat écrit
conforme à l’accord verbal antérieur. Le défendeur . . . a accepté de traiter [cette
demande] « dans le cadre de la relation contractuelle établie en février et en mai »...».
Le tribunal confirme qu’ « [e]« effet, pendant plusieurs semaines, [le défendeur] s'est
abstenu de requalifier la demande de modification du demandeur en un refus d 'exécuter les
accords verbaux; il n 'a pas soutenu que ces accords étaient rompus du fait du demandeur,
et n'a pas traité la demande de celui-ci comme une offre d 'un contrat entièrement nouveau.
C’est bien une modification du document établi en exécution des accords verbaux anté¬
rieurs qu il s’est agi de discuter ». Il en conclut que « de cette analyse il résulte que la
clause compromissoire tacitement incluse dans les accords verbaux et confirmée par son
insertion, non critiquée par le demandeur, dans le document K2, régit les relations qui se
8. Poudret/Besson, Droit comparé de l’arbitrage international: Zurich 2002, n° 276.

7ZZ1Ï.L-

sont poursuivies entre les parties après le 17 juin et dont l'enjeu était l’éventuelle
acceptation par le défendeur des modifications demandées par le demandeur », et que de ce
fait, « P]e Tribunal arbitral est donc compétent pour déterminer si, par son attitude entre le
1 7 juin et le 1er septembre [de la même année], date à laquelle il a opposé un refus, le
défendeur a engagé sa responsabilité envers le demandeur ».
Après avoir analysé les éléments de preuve apportés par les parties, le tribunal considère
que le défendeur a laissé entendre qu’il était prêt à discuter avec le demandeur des mod¬
ifications sollicitées.
Pour le tribunal il s’agit ici, comme en matière de responsabilité précontractuelle,
d’apprécier l’exécution par le défendeur de son obligation de négocier de bonne foi,
tout en tenant compte du fait que l’objet de la négociation n’était pas la conclusion
d’un contrat ex nihilo, mais la modification d’un accord déjà conclu.
Le tribunal arbitral retient d’abord que la Convention de Vienne du 11 avril 1980 sur la
r vente internationale de marchandises (ci-après « C VIM ») ne contient aucune disposition sur
la responsabilité précontractuelle. Il convient dès lors de mettre en œuvre le droit suisse tel
qu’il résulte du Code des obligations et de la jurisprudence, notamment celle du Tribunal
fédéral: A cet égard le tribunal constate que le droit suisse consacre les principes suivants:
« La responsabilité résultant d’une « culpa in contrahendo » repose sur le
postulat fondamental que, pendant les pourparlers, les parties doivent agir selon
——
les règles de la bonne foi9.
L’ouverture de négociations impose ainsi aux parties des devoirs récipro¬
ques de loyauté, ainsi que de diligence, fondés sur des considérations éthiques10.
« En principe, chaque partie peut rompre les pourparlers sans être obligée
d’en donner les raisons. Ce n’est que dans des situations exceptionnelles qu’une «
ctdpa in contrahendo » sera retenue en cas de rupture des pourparlers. Par exemple,
la conclusion d’une lettre d'intention renforce la volonté des parties de négocier en
conformité des règles de la bonne foi. Il est déterminant à cet égard de juger la
—
rupture des pourparlers à l’aune des expectatives créées par la lettre d’intention »".
« H faut que le responsable ait créé, puis déçu de manière contraire à la
bonne foi des attentes déterminées du lésé, et qu’il existe entre les parties un
rapport spécial de confiance »n.
— Les expectatives d’une partie ne seront protégées que dans des cas limites et
« à la condition que le comportement de l’auteur du dommage soit propre à susciter
des attentes suffisamment concrètes et déterminées du lésé »13.
— En vertu de l'article 44 du Code des obligations le juge peut réduire les
dommages intérêts ou n’en point allouer, lorsque la partie lésée a contribué à créer
le dommage.
— En vertu de l’article 97 du Code des obligations qui est applicable à la «
culpa in contrahendo »u, celui qui viole ses devoirs doit réparer tout dommage qui
—
9. Article 2, alinéa 1er, du Code civil suisse. P. Piolet, La culpa in contrahendo aujourd’hui: Revue
—
suisse de jurisprudence, 1981, p. 225; ATF ¡05, II, 75; JdT 1980, 1, 66. R. Gonzenbach, Culpa in
contrahendo im schweizerischen Vertragsrecht: Thèse Berne 1987, p. 14.
1 0. Ch. Chappuis, Les règles de la bonne foi entre contrat et délit in Pacte, convention, contrat, Mélanges
—
en l'honneur du Professeur Bruno Schmidlin, Bâle 1998, p. 241. P. Tercier, La ctdpa in contra¬
hendo, Premières journées juridiques Yougoslavo-Suisses, Zurich 1984 in Publications de l'Institut
suisse de droit comparé, 1984, p. 227.
11. Arrêt du Tribunal fédéral du 21 mars 2006, 4.C 409/2005.
12. Ch. Chappuis, La responsabilité fondée sur la confiance: 8J 1997, 165, 170.
13. Arrêt du Tribunal fédéral du 21 juin 2002, 4.C. 82/2002: 8J 2003 149.
14. Privatrecht, Obligalionenrecht I, Basel 2003, Einl. zu Art. 97-109, n° 10, et ses références.

se trouve en rapport de causalité avec la faute commise.

— Pour des obligations basées sur la « culpa in contrahendo », l'intérêt dit «
positif », qui est celui « qui aurait été réalisé si le contrat avait été régulièrement
conclu et exécuté » ne donne pas lieu à réparation; en revanche dans l 'intérêt «
négatif », qui donne lieu à réparation15, figure « le gain que le lésé aurait réalisé
par la conclusion d’un contrat avec un tiers, conclusion à laquelle il a renoncé à
cause des négociations en cours par exemple »16. »
Le tribunal retient que « dans l’esprit des deux parties, le principe qu’une vente inter¬
viendrait entre elles était acquis et résultait d 'accords verbaux antérieurs », et que « le
défendeur a créé chez le demandeur la confiance dans le fait que ses besoins essentiels en
éthanol seraient en toute hypothèse couverts, à tout le moins par la fourniture de six lots de
6 500 m3. C’est cette confiance que le défendeur a brutalement déçue par son courriel
[déclarant le contrat K2 « nul et non avenu »], à un moment où les cours avaient con¬
sidérablement monté ».
En ce qui concerne la détermination de la responsabilité, le tribunal considère qu’il
incombait au défendeur de dissiper le plus rapidement possible la confiance créée dans
l’esprit du demandeur, ce que le défendeur aurait pu faire « en mettant clairement le
demandeur dans l'alternative de signer le document K2 ou de renoncer définitivement
ata six lots convenus, quel qu'en fût le volume exact. Il eût été extrêmement simple pour le
défendeur de prendre cette position ». Le tribunal souligne que « le défendeur savait, de par
ses relations d’affaires avec le demandeur, que celui-ci se fournissait en éthanol pour le
transformer dans ses usines au Nigeria, puis pour le retendre sur le marché local » et que
le demandeur « avait un besoin d’approvisionnement constant et régulier ». Il constate que
« le défendeur savait, ou en tout état de cause devait savoir que le demandeur aurait un
problème d 'approvisionnement au cas où le défendeur refuserait d’accéder aux demandes
modificatives du demandeur ». Le tribunal poursuit: « L’attitude du demandeur a été, au
départ, également fautive, sa demande de modification, prétendument destinée à ce que le
contrat de vente soit conforme aux accords antérieurs, étant manifestement en contradic¬
tion avec le courriel que lui avait adressé le défendeur, courriel contre lequel elle n’avait
élevé aucune protestation. L'on peut penser que l'attitude pour le moins négligente du
défendeur s’explique en partie par sa conviction justifiée que la demande, prétendument
fondée en droit, de modification du document K2, était dénuée de tout mérite ».
Le tribunal considère ainsi que « le demandeur a contribué pour moitié à la réalisation
de son propre dommage, et que les dommages-intérêts qui doivent lui être alloués doivent
correspondre à la moitié de ce dommage ».
En ce qui concerne le contrat Kl, le tribunal constate que le défendeur a refusé d’exé-
cuter le contrat en s’abstenant de livrer le second lot de 4 000 m3.
Le défendeur, invoquant l’article 73(2) de la CVIM (« Si l’inexécution par l'une des
parties d 'une obligation relative à une livraison donne à l’autre partie de sérieuses raisons
de penser qu 'il y aura contravention essentielle au contrat en ce qui concerne des obliga¬
tions futures, elle peut déclarer le contrat résolu pour l 'avenir, à condition de le faire dans
un délai raisonnable »), soutenait qu’il était en droit de déclarer le contrat résolu pour
l’avenir, en raison de l’attitude passée du demandeur.
Le tribunal ne fait pas droit à cette défense estimant que le défendeur n’a pas établi,
comme le requiert la CVIM, d’une part qu’il avait de sérieuses raisons de penser qu’il y
aurait contravention essentielle aux obligations du demandeur relatives au deuxième lot, et
d’autre part qu’il avait en effet déclaré le contrat résolu, et ce dans un délai raisonnable.
15. Wiegand, op. cit. «° 10.

16. Arrêt du Tribunal fédéral du 10 mai 2006, 4. C 399/2005.
fédéral du 22 mars 1974: SJ 1975 p. 1.
— dans le même sens, V. arrêt du Tribunal

’ÿ."ÿ.f-vjvítv. ' -V.V ’.'i v:.:
'

En ce qui concerne la crainte d’une contravention essentielle aux obligations du deman¬
deur, le tribunal arbitral considère:
« une telle justification, considérée isolément, comme peu sérieuse en raison du temps
passé depuis l'incident. Plus d’un an s ’était écoulé, et les parties, après une transaction,
s'étaient réconciliées et avaient accepté de conclure aux conditions ordinaires, c’est-a-
dire FOB, [un autre contrat]. Le défendeur ne pouvait donc « ressusciter » cette affaire pour
déclarer résolu, ou pour modifier en cours d’exécution, un contrat dont elle avait accepté
les termes en connaissance de cause ».
Le tribunal ajoute que:
« Les retards passés dans les paiements étaient de nature à susciter la crainte de
retards futurs, mais non celle d’un non-paiement. Or de tels retards, fréquents dans
les rapports entre les parties, ne peuvent être considérés comme une « contraven¬
r tion essentielle au contrat », selon les termes de l'article 73, § 2, de la Convention
de Vienne. Aux termes de l‘article 25 de la même Convention, une contravention est
essentielle « lorsqu'elle cause à l’autre partie un préjudice tel qu'elle la prive
substantiellement de ce que celle-ci était en droit d'attendre du contrat ». Le
défendeur ne pouvait craindre sérieusement de subir un préjudice aussi élevé du
fait d'éventuels retards dans le paiement ».
« Le contrat montre que les retards dans la confirmation des lettres de crédit ne
constituent pas une contravention essentielle: une sanction spécifique leur est
seulement attachée. Dès lors les retards dans les paiements, auxquels peuvent
conduire les retards dans la confirmation, ne constituent pas non plus une contra¬
vention essentielle ».
En ce qui concerne la déclaration, en temps utile, que le contrat était résolu, le tribunal
constate que l’intention du défendeur était d’imposer une modification au contrat Kl et non
de le dénoncer. Le tribunal souligne à l’égard de l’article 73(2) de la CVIM que,
« cette notification n 'est soumise à aucune condition de forme, encore faut-il
qu’elle ait un contenu signifiant une intention de mettre fin au contrat. Or tel
n 'est certainement pas le sens qui s'attache, notamment, à la phrase suivante de
la lettre du défendeur du. . . : « Based upon the above, we are ready and willing to
fulfill the amendment of the contract K1 » ».
Et ajoute que:
« Même en admettant que cette lettre doive être interprétée comme contenant une
dénonciation, il resterait douteux que la notification soit intervenue dans un délai
raisonnable. Aux termes du premier addendum au contrat, dont les parties étaient
convenues ..., le second lot devait être chargé en octobre ....ce qui imposait
d 'entrer en action quelques semaines auparavant. Une notification le 14 septembre
était donc notoirement tardive, surtout compte tenu du fait que l'autre chargement
que le demandeur attendait pour la même période venait d’être annulé aux termes
du courriel du Ier septembre . . . (« le contrat K2 est nul et non avenu »). Le
Tribunal arbitral considère donc que le défendeur n 'était pas en droit de déclarer
le contrat résolu, et qu’il ne l’a pas fait, en tout cas en temps utile ».
Finalement, sur les dommages-intérêts, le tribunal rappelle que le demandeur avait
conclu un accord valable en vue de l’achat de six lots de 6 500 m3, soit pour un total de
39 000 m3, à livrer sur une période de six mois. La moyenne du prix par m3 pour l’ensemble
de ces lots était de USD 1 94,5. Par ailleurs, le demandeur était en droit d’obtenir la livraison
de 4 000 m3 d’éthanol représentant le solde du contrat Kl .
Pour pallier les carences de livraison du défendeur, le demandeur s’est procuré quatre
lots d’éthanol auprès d’un autre fournisseur pour un total de 25 360 m3 à des prix variant
entre USD 310 et USD 330 par m3. Il est aussi démontré que les premières livraisons ont
Reprinted from the Ciunet 865

été destinées à couvrir les 4 000 nf dus aux termes du contrat Kl, laissant ainsi un solde
de 21 360 m3 au titre des quantités se rapportant aux accords qui auraient dû aboutir au
contrat K2.
En ce qui concerne les 4 000 m3 du contrat Kl, en tant que contrat de vente régi par la
CVIM et en application de l’article 75 de cette Convention, le tribunal calcule le préjudice
sur la base de la différence entre le prix du contrat (USD 208 par m3) et le prix de l’achat de
remplacement (USD 310 par m3).
S’agissant du dédommagement pour les 21 360 m3 de remplacement pour les accords
liées au contrat K2, en l’absence de contrat de vente et s’agissant de culpa in conlrahendo,
les règles appliquées par le tribunal sont celles du droit commun suisse.
Dans la mesure où le demandeur a été fautif en refusant de signer le contrat K2 présenté
par le défendeur, le tribunal considère que le prix de référence à prendre en compte ne peut
être le prix (inférieur) prévu contractuellement.
« Pour le Tribunal arbitral, il convient plutôt de prendre en compte la date à
laquelle le défendeur aurait normalement dû informer le demandeur de ce que
ses demandes modificatives étaient rejetées, et de prendre le prix qui existait à
cette époque comme point de départ du calcul des dommages et intérêts ».
En retenant la date à laquelle, au plus tard, le défendeur « attrait dû se manifester et
signifier son rejet de l’offre modificative au demandeur », le tribunal constate le cours
moyen du marché d’éthanol (USD 169 par m3) et conclut que « c 'est à ce prix « ex usine »
que le demandeur aurait pu s’approvisionner si le défendeur avait manifesté son refus à
temps ». Le tribunal majore le prix de USD 35 par m3 pour convertir le prix « ex-usine » en
prix FOB, conformément à l’accord des parties.
Le dédommagement octroyé au demandeur est également augmenté des frais de douane
encourus par le demandeur.
En ce qui concerne la demande du demandeur tendant à obtenir les intérêts sur les
sommes représentant le surcoût des achats de remplacement au taux du LIBOR sur un
an augmenté de deux points, le tribunal raisonne de la façon suivante:
« Selon l'article 73, § 1, du Code des obligations que le Tribunal considère appli¬
cable, par voie directe ou d’analogie, pour le calcul des intérêts faisant partie des
dommages-intérêts, le débiteur d'une créance doit des intérêts au taux de 5 % p.a.
Entre commerçants, un taux supérieur au taux légal peut être alloué lorsque le taux
d’escompte dépasse 5 % au lieu du paiement. Le paiement de dommages-intérêts et
donc d’une somme d 'argent constituant une dette portable (V. l'article 74 § 2, n° 1,
du Code des obligations), le lieu de paiement se situe au siège du demandeur, donc
au Nigeria. Il est notoire, et n'a pas été contesté par le défendeur, que le taux
d'escompte au Nigeria est supérieur à 5 % p.a. Dans ces conditions, le Tribunal
arbitral fait droit à la demande du demandeur d’un taux d’intérêts base sur le
LIBOR pour une année augmenté de 2 points. Comme le taux du LIBOR sur un an
est en général légèrement inferieur aux taux à un, trois ou six mois, le Tribunal
arbitral retiendra effectivement le taux dit LIBOR à un an ».
« Pour payer la marchandise de substitution, le demandeur devait utiliser des
lettres de crédit confirmées, dont les montants étaient débités de son compte avec
date de valeur à l'ouverture du crédit. C'est donc cette date qui détermine le
moment auquel le demandeur a subi un préjudice financier pour l’achat des quan¬
tités de remplacement. En droit suisse, cette date est également pertinente pour
faire courir les intérêts sur le dommage subi, sans qu’il soit nécessaire d'une
quelconque sommation ou mise en demeure ».
« Le Tribunal choisit comme date de départ pour faire courir les intérêts une
date unique pour les neuf lettres de crédit, soit le 1er décembre. . . Cette date
constitue une moyenne approximative, que le Tribunal est libre de prendre en

-ÿVTVVÿí;

compte dans le cadre de sa liberté d’apprécier le dommage. Elle a l'avantage de
permettre aux parties de calculer les intérêts dus, ce qui ne pourra que faciliter
l’exécution de là sentence ».
NOTE. — — I Le défendeur conteste la compétence du tribunal arbitral aux motifs
d’une part, que le contrat K2 n’a jamais été conclu, le demandeur ayant rejeté l’offfe du
défendeur, et d’autre part, que Tarticle 178(1) de la LDIP suisse exige que chaque partie
exprime son consentement par écrit.
Le tribunal constate que si les parties n’ont pas formellement signé un contrat
comme elles en avaient l’habitude -, elles ont néanmoins conclu des accords, cré¬
ateurs d’obligations qui, à leur tour, pouvaient donner lieu à des litiges, notamment
—
si le contrat définitif ne venait pas à être établi ou ne respectait pas les accords
conclus.
&
Ayant constaté l’existence des « contrats véritables », la méthode retenue par le tribunal
pour établir sa compétence à l’égard des litiges découlant de ces accords (qui devaient
:
;
donner lieu au contrat K2) est d’une logique impeccable.
Dans un premier temps, le tribunal cherche à dégager l’intention des parties constatant,
tout d’abord, que leur relation s’inscrit dans un courant d’affaires que constituent plusieurs
contrats standards successifs comportant les « clauses usuelles entre les parties » y compris
une clause compromissoire identique; pour ensuite, conclure, au terme d’un test de «
raisonnabilité », qu’il était invraisemblable que les parties - qui pendant les négociations
n’ont jamais remis en question la clause compromissoire - aient voulu soustraire à
l’arbitrage (qui était déjà prévu dans tous les contrats précédents et que le contrat K2
prévoyait également) les litiges relatifs à la phase antérieure à l’établissement du contrat
signé. Le tribunal conclut donc, à juste titre, que l’intention des parties était bien de
soumettre à l’arbitrage les litiges relatifs à leurs accords verbaux. Sur la base des faits
en cause et du comportement des parties, le tribunal ne fait que reconnaître avec ce test de «
raisonnabilité » que l’arbitrage (et non le recours aux tribunaux étatiques) est la juridiction
de référence dans les affaires internationales. Le tribunal recommit ainsi qu’il peut y avoir
accord tacite de soumission à l’arbitrage. On est très loin de l’époque où l’arbitrage était
considéré comme une juridiction d’exception et où l’on exigeait une manifestation de
volonté expresse pour y avoir accès.
Dans un second temps, le tribunal se penche sur la question de savoir si cette intention
s’est exprimée de façon à satisfaire les conditions de forme requises par le droit suisse
applicable. Retenant une solution assez classique (V. Sentence CCI n° J 0329 de 2000:
Yearbook Commercial Arbitration XXIX (2004) 108; Recueil des sentences arbitrales de la
CCI 2001-2007, p. 249, notamment p. 257), qu’il prend soin de confirmer sur la base de la
jurisprudence et de la doctrine suisses plus récentes, le tribunal constate que l’article 178(1)
de la LDIP n’exige pas la signature de la convention d’arbitrage sinon « la preuve par un
texte ». C’est ainsi à juste titre que le tribunal considère que les accords verbaux (même
tacites) exprimant l’intention des parties de se soumettre à l’arbitrage découlent des cour¬
riels échangés entre les parties et que le texte même de la Convention d’arbitrage à été
matérialisé, par la suite, par écrit dans le document K2 signée par le défendeur et envoyé au
demandeur le 16 juin.
De façon plus originale, et dans la mesure où le demandeur a également formulé des
demandes subsidiaires sur le fondement de la responsabilité précontractuelle du défendeur,
le tribunal se penche sur sa compétence à l’égard de manquements qui ne découlent pas des
accords (même verbaux) conclus entre les parties. A cet égard, constatant que les com¬
munications entre les parties après le refus du demandeur de signer le document K2
s’inscrivaient dans une démarche de modification des accords conclus et non de
proposition d’accords nouveaux, le tribunal considère que la Convention d’arbitrage qui
faisait partie des accords verbaux conclus entre les parties et qui a été transcrite dans le

document K2 s’applique aussi aux relations poursuivies entre les parties après le refus de
signature de ce document et à l’éventuelle responsabilité encourue par le défendeur lors¬
qu’il a mis fin à ces relations. Le tribunal se fonde notamment sur le fait que ces modifica¬
tions (et éventuels désaccords entre les parties) ne remettaient pas en cause la convention
d’arbitrage standard utilisée au préalable entres les parties et incorporée dans le document
K2 qui était l’objet des modifications.
Le tribunal nous montre ici d’une façon claire et convaincante que lors de négociations
contractuelles, lorsqu’il est établi que les parties se sont mises d’accord sur la Convention
d’arbitrage, celle-ci a vocation à s’appliquer non seulement à la responsabilité contractuelle
et précontractuelle sinon aussi á toute autre responsabilité qui pourrait découler des négo¬
ciations entre les parties relatives à leur relation contractuelle, même si cette relation n’a
pas abouti à la signature du contrat qui était leur but.
Finalement, la partie défenderesse ayant aussi mis en question la capacité du destinataire
de ses courriels à représenter le demandeur, le tribunal de façon directe et convaincante
écarte cette défense sur le fondement de l’absence de formalisme du droit suisse en matière
de représentation, du principe de la représentation apparente, et du principe général selon
lequel le défaut de représentation n’est recevable en tant .que défense que lorsqu’il est
invoqué par le représenté (V. par analogie Sentence CCI n° 5080 de 1985: Yearbook
Commercial Arbitration XII (1987) 124; Recueil des sentences arbitrales de la CCI
1986-1990, p. 80, notamment § 18, p. 83).
IL — À l’instar de la grande majorité des systèmes juridiques, le droit suisse privilégie
l’absence de formalisme en matière de formation des contrats (V. C. obligations, art. 1er
qui dispose: « 1. Le contrat est parfait lorsque les parties ont, réciproquement et d’une
manière concordante, manifesté leur volonté. 2. Cette manifestation peut être expresse ou
tacite »). En l’espèce, la question se posait du fait que les accords verbaux concernant le
contrat K2 ne se sont pas matérialisés par un écrit et n’ont pas été signés. Constatant que les
parties ne contestaient pas que des accords avaient été passés, même si l’existence de
contrat de vente lui-même était soumise à l’accomplissement d’une formalité écrite (ce
qui est une condition valable et exigible en droit suisse) (V. C. obligations, art. 16 qui
dispose: « 1. Les parties qui ont convenu de donner une forme spéciale à un contrat pour
lequel la loi n 'en exige point, sont réputées n 'avoir entendu se lier que dès l 'accomplisse¬
ment de cette forme. 2. S'il s 'agit de la forme écrite, sans indication plus précise, il y a lieu
d’observer les dispositions relatives à cette forme lorsqu 'elle est exigée par la loi »), le
tribunal considère que les parties ont conclu un contrat qui obligeait le défendeur à rédiger
un contrat de vente sur la base du modèle standard toujours utilisé par les parties, et le
demandeur à le signer, s’il correspondait aux accords conclus. Il n’y a là rien d’extraor¬
dinaire, mais il faut souligner qu’en décidant ainsi, le tribunal confirme que les « agreement
to agree » ne constituent pas de simples déclarations mais de véritables engagements
générateurs d’obligations.
Le tribunal constate qu’en proposant au demandeur le document K2 dûment signé, le
défendeur a respecté ses engagements et que c’est le demandeur qui a été fautif en refusant
de signer ce document.
III. — Comme on l’a déjà remarqué, ce sont les décisions relatives aux prétentions
découlant des accords sur le contrat K2 qui s’avèrent les plus intéressantes. À cet égard,
ayant débouté le demandeur de sa demande principale concernant le défaut de livraison, le
tribunal se doit d’aborder les allégations subsidiaires relatives à l’obligation de coopération
de bonne foi entre les parties pour surmonter les divergences relatives aux volumes d’étha¬
nol réellement convenus. Pour mémoire, si l’inexécution alléguée à titre principal est celle
d’une obligation de résultat, l’inexécution alléguée à titre subsidiaire est celle d’une obli¬
gation de moyens: négocier de bonne foi.

S575S.-rair£v
í;

De façon très complète et didactique, le tribunal commence parrappeler les principes qui
gouvernent la responsabilité précontractuelle en droit suisse
cation de la CVIM, qui ne comporte pas de dispositions à cet égard
— —tout en écartant l’appli¬
pour ensuite fixer
les critères qui vont lui permettre de conclure à la responsabilité du défendeur dans la
rupture des négociations.
Ce qu’il faut surtout retenir c’est l’importance qu’accorde le tribunal à l’état d’esprit des
parties au moment de la rupture des négociations et aux circonstances de ces dernières.
D’une part, le tribunal souligne que le demandeur n’a pas détrompé le défendeur qui était
convaincu qu’il pourrait se fournir auprès du défendeur et ce, peu important les points qui
restaient en discussion (essentiellement le volume des livraisons — plus important
qu’essayait d’obtenir le demandeur). D’autre paît, le tribunal relève que le défendeur se
—
trouvait en état de savoir que la rupture des négociations allait mettre le demandeur en
difficulté d’approvisionnement.
z- La rupture « brutale » des négociations et le fait que les cours d’éthanol se trouvaient à la
hausse à ce moment-là ne font que conforter le tribunal dans sa conclusion.
En ce qui conceme la répartition de la responsabilité, le tribunal rappelle sa décision
rejetant la prétention principale du demandeur relative au contrat K2 au motif que celui-ci
avait à tort refusé de signer le document K2 présenté par le défendeur. S’appuyant à
nouveau sur l’état d’esprit du défendeur, le tribunal conclut que l’attitude du demandeur
aurait pu laisser le défendeur penser que les demandes de modifications formulées par le
demandeur n’étaient pas sincères.
Le tribunal conclut ainsi que le demandeur a contribué par moitié à son propre dom¬
mage. Le tribunal n’explique pas comment il parvient à une répartition par moitié, mais on
ne saurait lui en tenir rigueur eu égard à l’ample liberté dont jouissent les arbitres en matière
de partage de responsabilité à condition qu’ils énoncent clairement les raisons de leur
décision (V. notamment Sentence CCI n° 8818 de 1997: Bulletin de la Cour internationale
d’arbitrage de la CCI, Vol. 17, N° 1, p. 70, notamment § 39, p. 84 et Sentence CCI n° 8383
de 1999: Bulletin de la Cour internationale d’arbitrage de la CCI, Vol. 16, N° l,p. 92,
notamment § 10.4, p. 102).
IV.
— En ce qui conceme le manquement à l’obligation de livrer le second lot du
contrat K 1, le défendeur a évoqué en défense sa « crainte d 'une contravention essentielle »
selon les termes de l’article 73.(2) de la CVIM. Le tribunal rappelle que ce texte exige: (i)
que les crainte soient sérieuses, (ii) qu’elles concernent une contravention essentielle au
contrat, (iii) que la résolution du contrat soit déclarée, et (iv) que cette déclaration soit faite
dans un délai raisonnable (V. V. Heuzé, La vente internationale de marchandises
uniforme: LGDJ 2000, § 434 et s. — — Droit
P. Schlechtriem et C. Witz, Convention de Vienne sur
les contrats de vente internationale de marchandises: Dalloz 2008, § 361 et s.; Recueil
analytique de jurisprudence concernant la Convention des Nations Unies sur les contrats
de vente internationale de marchandises, p. 226 (commentaires sous article 73)).
Pour le tribunal, aucun de ces éléments n’est présent en l’espèce: (i) les retards de
paiement invoqués par le défendeur appartenaient au passé et avaient fait l’objet d’une
transaction entre les parties, (ii) le retard de paiement ne constitue pas une contravention
essentielle d’autant plus que le contrat K2 prévoyait une sanction spécifique pour ces
retards, (iii) le défendeur n’a pas cherché à dénoncer le contrat mais à obtenir sa modifi¬
cation, et (iv) en tout état de cause, la lettre présentée par le défendeur comme portant
résolution a été expédiée trop tard eu égard aux délais de livraison prévus et au fait que
l’autre contrat (K2) venait d’être déclaré « nul et non avenu » par le défendeur.
L’analyse du tribunal n’appelle aucune remarque. Elle illustre combien les arbitres sont
stricts lorsqu’ils examinent la cohérence de l’attitude des parties au moment des faits par
rapport à leurs allégations dans l’arbitrage.

V. — Le tribunal examine la question du calcul du dommage sous deux angles

différents selon que le manquement considéré concerne une obligation de nature contrac¬
tuelle ou de nature précontractuelle.
Ainsi, en ce qui concerne le contrat Kl, il n’y avait qu’à appliquer la CVIM (art. 75) et
octroyer au demandeur la différence entre le prix convenu contractuellement et le prix
auquel il a dû se fournir pour couvrir ses besoins d’éthanol. La démarche du tribunal est
classique et ne mérite pas de commentaire.
S’agissant du calcul du dommage découlant de la culpa in contrahendo, le tribunal
applique le droit commun suisse. Le prix de référence n’est plus le prix contractuel;
d’un côté, il n’y a pas eu de contrat de vente, et de l’autre côté, la seule référence à un
prix contractuel se trouvait dans le document K2 que le demandeur a refusé à tort de sig ncr.
Le tribunal retient, à juste titre, le prix du marché au moment où le défendeur aurait dû
informer le demandeur que ses modifications du document K2 n’étaient pas acceptables.
Le tribunal octroie donc la différence entre ce prix et le prix de remplacement obtenu par le
demandeur aux conditions de marché. Cette démarche du tribunal semble être fortement
inspirée par les conditions du marché qui se trouvait alors en hausse. Toutefois, il n’y a rien
à reprocher au tribunal qui fournit un raisonnement détaillé et logique au soutien de ses
conclusions.
Le tribunal accorde également au demandeur des intérêts sur les montants alloués,
encore une fois sur la base du droit suisse applicable, la CVIM ne comportant pas de
dispositions applicables aux intérêts moratoires.
Même si en matière d’intérêts les arbitres jouissent d’une très grande liberté d’apprécia¬
tion ( V. Sentence CCIn° 6219de 1990: JDI 1990, p. 1047 ; Recueil des sentences arbitrales
de la CCI 1986-1990, p. 427. — Sentence CCI n° 5030 de 1992: JDI 1993, p. 1004;
Recueil des sentences arbitrales de la CCI ¡991-1995, p. 475. — Sentence CCI n° 6653 de
1993: JDI 1993, p. 1040 et 1053; Recueil des sentences arbitrales de la CCI 1991-1995, p.
512 et 525. —
de la CCI 1991-1995, p. 600.
—
Sentence CCI n° 6754: JDI 1995, p. 1009; Recueil des sentences arbitrales
Sentence CCI n° 8128 de 1995: JDI 1996. p. 1024;
Recueil des sentences arbitrales de la CCI 1996-2000, p. 440. — Sentence CCI n° 9466 de
1999: Yearbook Commercial Arbitration XXVII (2002) 170; Recueil des sentences arbi¬
trales de la CCI 2001-2007, p. 97), le tribunal s’attarde à justifier aussi bien le taux (sur la
base de l’article 73.1 du Code suisse des obligations) que la date (celle de la date valeur à
laquelle le compte du demandeur à été débité). Le tribunal, soucieux de faciliter l’exécution
de sa sentence et faisant ici encore usage de sa liberté d’appréciation, fixe une date unique
(une moyenne approximative) pour le départ des intérêts. Une telle approche constitue une
démonstration de l’usage raisonnable et justifié de la liberté des arbitres en matière de
détermination du dommage.
F. M.S.
Mots-Clés : Arbitrage international
Compétence du tribunal arbitral

L-j . :,2-:-:-:-.-;-2.
française)
I. — Convention d’arbitrage.
l’institution d’arbitrage.
— Lieu de l’arbitrage. — Siège de
IL — Convention d’arbitrage. — Renonciation. — Mesures provisoires

et conservatoires. — Compétence du tribunal arbitral.
ni. — Convention d’arbitrage. Renonciation. — — Juge étatique. —
f
Saisine d’une demande au fond. Litispendance. —
y Le tribunal arbitral se déclare compétent sur la base d’une convention d’arbitrage qui
fait référence à l’arbitrage CCI et qui prévoit que Genève est le lieu de l’arbitrage.
Le tribunal arbitral rejette l’exception d’incompétence fondée sur la saisine de la
juridiction étatique. Il estime qu’en demandant des mesures conservatoires à l’autorité
judiciaire, la demanderesse n’a pas renoncé à la convention d’arbitrage. Il estime égale¬
ment que la saisine par la défenderesse du juge étatique d’une demande au fond n’implique
pas la renonciation à la convention d’arbitrage.
Le tribunal arbitral décide que la suspension des paiements par la défenderesse n 'est
pas justifiée et condamne la défenderesse à payer à la demanderesse le solde du prix de
vente avec intérêts moratoires.
Le tribunal arbitral condamne la défenderesse à supporter les frais de l’arbitrage.
Un tribunal arbitral siégeant à Genève était saisi d’un litige opposant une société ita¬
lienne X, demanderesse, à une société algérienne Y, défenderesse, et concernant un contrat
de vente d’une machine d’emballage produite par X.
Le contrat prévoyait que 15 % du prix serait payé par Y avant la livraison de la machine,
et que le solde serait payé en douze acomptes mensuels selon un échéancier contractuel. Le
contrat contenait une clause prévoyant que toute réclamation, de quelque nature que ce soit,
concernant l’exécution des obligations du vendeur ne donnait droit à l’acheteur de sus¬
pendre ou de retarder le paiement du prix (clause « solve et repete »). Le contrat était
soumis au droit italien à l’exclusion des dispositions de la Convention de Vienne de 1980
sur la vente internationale de marchandises.
La défenderesse s’était acquittée seulement de l’avance sur le prix de vente et des trois
premières échéances: La demanderesse réclamait le paiement du solde.
Le différend fit également l’objet de deux procédures judiciaires devant les tribunaux
algériens: une demande de saisie conservatoire de la machine introduite par la demander¬
esse en arbitrage devant la section des référés d’un tribunal algérois avant le début de
l’arbitrage, qui fut rejetée par le juge algérien en raison du fait que la condition de l’urgence
n’était pas réalisée, et une requête introductive d’instance déposée par la défenderesse en
arbitrage devant la section commerciale du même tribunal algérois avant l’introduction de
l’arbitrage. Dans cette dernière procédure, l’acheteur invoquait des défauts techniques de la
machine et demandait la résiliation du contrat de vente.
Après un échange de correspondance avec le Secrétariat de la Cour internationale
d’arbitrage en début de procédure, la défenderesse avait cessé de participer à l’arbitrage.
Dans cette correspondance, la défenderesse s’était opposée à la mise en œuvre de la pro¬
cédure en soulevant une exception d’incompétence articulée en trois motifs: (i) la clause
contenue dans le contrat indiquait Genève comme siège de l’arbitrage, alors que la deman¬
deresse avait saisi la CCI, dont le siège est à Paris; (ii) par sa demande de saisie
i,
conservatoire la demanderesse avait renoncé à se prévaloir de la clause compromissoire

contenue au contrat; et (iii) la procédure engagée par la défenderesse devant lejuge algérien
entraînait la renonciation à la convention d’arbitrage.
Le tribunal arbitral rejeta la première objection, portant sur le lieu de l’arbitrage, dans les
termes suivants:
« Conformément à l'article 16 du Contrat de vente, le siège de l’arbitrage est à
Genève.
Les parties ont également prévu à l’article 16 du Contrat de vente que
l 'arbitrage serait soumis au règlement de la Chambre de Commerce Internatio¬
nale. Or, le fait qu’il s’agisse d'un organisme se trouvant à Paris n’a pas d'inci¬
dence sur le siège de l’arbitrage comme semble le soulever Y dans son courrier à la
Cour internationale d'arbitrage de la CCI [ ■] Il s'ensuit que le présent
■ ■
arbitrage se déroule sous les auspices d'une institution d’arbitrage se trouvant

à Paris mais que le siège de l’arbitrage est à Genève ».
Les deuxième et troisième objections furent rejetées comme suit:
« Les deux questions qui se posent en l'espèce sont celles de savoir, d 'une part, si la
saisine par la Demanderesse du Tribunal algérois [ ... ] d'une demande de
mesures conservatoires constitue une renonciation à la compétence du Tribunal
arbitral et, d'autre part, si l’introduction par Y d 'une procédure sur le fond devant
le Tribunal algérois [ ... ] constitue un obstacle à la compétence du Tribunal
arbitral.
(i) Les mesures conservatoires requises par X
Selon l’article 23 al. 2 du Règlement d’arbitrage de la CCI: « Les parties
peuvent, avant la remise du dossier au Tribunal arbitral et dans des circonstances
appropriées après, demander à toute autorité judiciaire des mesures provisoires ou
conservatoires. La saisine d’une autorité judiciaire pour obtenir de telles mesures
ou pour faire exécuter des mesures semblables prises par un tribunal arbitral ne
contrevient pas à la convention d’arbitrage, ne constitue pas une renonciation à
celle-ci, et ne préjudicie pas à la compétence du Tribunal arbitral à ce titre.
Pareille demande, ainsi que toute mesure promises [sic] par l’autorité judiciaire,
devront être portées sans délai à la connaissance du Secrétariat. Ce dernier en
informera le Tribunal arbitral ».
Il s'ensuit que l 'article 23, alinéa 2, du Règlement d’arbitrage de la CCI, que les
parties ont convenu d 'appliquer, prévoit expressément que la saisine d’une autorité
judiciaire pour obtenir des mesures provisoires ne constitue pas une renonciation à
celle-ci.
Le principe selon lequel la conclusion d’une convention d’arbitrage
n 'empêche pas les parties de s’adresser au juge pour ordonner des mesures
provisoires est également consacré par plusieurs dispositions légales et conven¬
tionnelles, reconnu par la jurisprudence et la doctrine de différents États et
rappelé dans de nombreuses sentences arbitrales (Sébastien Besson, Arbitrage
international et mesures provisoires, Etude de droit comparé, Schulthess 1998,
N3 611 et s., p. 554 s.) [ ... ]
Cette compétence du juge pour prononcer des mesures conservatoires implique
que les parties peuvent s’adresser à lui sans renoncer au bénéfice de la convention
d’arbitrage.
Dans le cas d’espèce, X a déposé f . . . ] avant la saisine du Tribunal arbitral,
une demande de saisie conservatoire devant la section des référés du Tribunal
algérien [ ... ] pour obtenir la saisie conservatoire de la Machine se trouvant en
Algérie chez la Défenderesse.
Selon X, cette procédure visait la mise sous séquestre de la Machine et a été
rejeté en raison du fait que la condition de l’urgence n’était pas réalisée [ ... J

v:

Au vu de ce qui précède, le Tribunal arbitral constate qu’en saisissant les
tribunaux algériens d'une requête de mesures conservatoires X n’a pas renoncé
à la clause compromissoire prévue à l’article 16 du Contrat de vente.
(ii) La requête de Y
En ce qui concerne la saisine par Y du Tribunal algérois d’une demande au fond
contre Y [ ... J également avant la saisine du Tribunal arbitral, elle ne saurait
constituer un obstacle à la compétence du Tribunal arbitral dès lors que l 'article 16
du Contrat de vente stipule que tous différends entre les parties résultant du Con¬
trat de vente seront réglés de manière définitive par voie d'arbitrage selon le
Règlement de conciliation et d'arbitrage de la CCI.
Les clauses contenues dans ce Contrat de vente, y compris la clause compro¬
missoire, lient les parties.
:.-r Or, la Requête d'arbitrage d’X [ ... ] porte sur un différend résultant du Con¬
* trat de vente de la Machine puisque cette dernière réclame le paiement de l'inté¬
gralité du prix de la Machine. Il s’agit donc d'un litige soumis à la clause
d'arbitrage en raison de la matière.
Comme susmentionné, Y ne pouvait pas inférer que la demande de mesures
provisoires déposée devant le Tribunal algérois par X impliquait que celle-ci
avait renoncé à la convention d'arbitrage. Par ailleurs, la saisine d’un tribunal
étatique d‘une demande au fond par la Défenderesse ne saurait invalider ou rendre
caduque la Convention d'arbitrage qui comme susmentionné lie les parties et ceci
en vertu du principe de la force obligatoire des contrats. Enfin, X indique n’avoir
jamais reçu d 'assignation par rapport à cette procédure devant le tribunal algérien
et n'a donc semble-t-il pas été en mesure de soulever une exception d 'incompétence
dans le cadre de cette procédure.
Le Tribunal arbitral n'a du reste pas été informé de la suite qui a été donnée à
cette procédure par le Tribunal algérois et en particulier si cette instance avait
rejeté sa compétence compte tenu de la clause compromissoire contenue à l'article
16 du Contrat de vente ».
Le tribunal arbitral se déclara donc compétent dans les termes suivants:
« Au vu de ce qui précède, le Tribunal arbitral se considère compétent pour
connaître de l’ensemble des prétentions d'X contenues dans sa Demande
d’arbitrage ».
Sur le fond, le tribunal constata que le contrat contenait effectivement une clause solve et
répété, qui interdisait à la défenderesse de suspendre les paiements en cas de réclamations,
et qu’en n’exécutant pas ses obligations de paiement selon l’échéancier convenu, la défen¬
deresse avait donc violé le contrat.
Le tribunal considéra que la défenderesse avait signalé à la demanderesse l’existence
d’anomalies et de défauts de fabrication dans le délai prévu au contrat et par la loi et qu’elle
n’était pas forclose de son droit de les invoquer. Il constata également que la période de
garantie de la machine n’était pas encore échue lorsque les défauts avaient été invoqués
pour la première fois par la défenderesse.
Cependant, le tribunal considéra qu’il appartenait à la défenderesse d’apporter la preuve
des défauts qu’elle invoquait afin de justifier son droit de retenir le solde du prix et de
suspendre les paiements. Le tribunal arbitral examina chacun des défauts invoqués par la
défenderesse à la lumière des éléments en sa possession, et conclut que la défenderesse
n’avait pas démontré que les anomalies invoquées constituaient des défauts de conception:
«Au vu de ce qui précède, le Tribunal arbitral considère qu'Y n 'a pas démontré que
l 'oxydation de l 'outil de découpe constituait un défaut de conception. En revanche,
il est vraisemblable que le problème de l 'oxydation de l'outil de découpe soit lié à
des causes postérieures à la livraison de la Machine et en particulier un mauvais
entretien [ ... ]
Reprinted from tbe Clunet 873

Au vu de ce qui précède, le Tribunal relève que les pièces du dossier démontrent

que le réglage manuel du système de pas de la Machine apparaît comme étant
conforme aux spécifications du Contrat de vente et ne saurait constituer un défaut
de conception [ . . . ]
Au vu de ce qui précède, les pièces du dossier ne permettent pas au Tribunal
arbitral de retenir un défaut de conception dans la buse de dosage de la Machine ».
De surcroît, la défenderesse n’avait pas présenté des conclusions devant le tribunal
arbitral et ne s’était pas déterminée sur les conséquences juridiques des défauts invoqués:
« Dans tous les cas, même à supposer qu 'Y ait été en mesure de convaincre le
Tribunal arbitral de l'existence d "un ou plusieurs défauts, il aurait encore fallu que
cette dernière se détermine juridiquement sur les conséquences contractuelles et
légales, en particulier par des conclusions en bonne et due forme, présentées dans
la présente procédure.
Tel n'est pas le cas en l’espèce. En particulier, les conclusions prises devant le
Tribunal algérois ne lient pas le Tribunal arbitral ».
La défenderesse n’ayant pas établi l’existence de défauts justifiant la suspension des
paiements, le tribunal arbitral condamna Y à payer à la demanderesse le solde du prix de
vente avec intérêts moratoires au taux contractuel à compter de la date d’exigibilité de
chaque billet à ordre:
« Pour toutes les raisons ci-dessus, le Tribunal arbitral conclut que la Défender¬
esse a violé ses obligations de paiement et doit être condamnée à payer à la
Demanderesse le solde dû, à savoir Euros 337'874. —
avec intérêts moratoires
à un taux égal au LIBOR 6 mois majoré de 3 points (conformément à l'art. 6.2 du
contrat) calculés à partir de la date d'exigibilité des billets à ordre respectifs
jusqu'à la date du paiement ».
La défenderesse fut également condamnée a supporter entièrement les frais de
l’arbitrage et les frais légaux de la demanderesse.
NOTE. — I.— La première objection de la défenderesse à la mise en œuvre de la
procédure n’avait aucune chance de succès. Dans son unique écriture, la défenderesse avait
soulevé que le contrat de vente « stipule clairement que le siège de l 'arbitrage est fixés [sic]
à Genève », ce qui était incontesté et incontestable au vue de la teneur de la clause
compromissoire («r Le siège de l’arbitrage est Genève »), alors que la demanderesse
avait saisi la CCI, dont le siège est à Paris.
L’objection était donc manifestement dilatoire, ou bien motivée par un manque de
connaissance du système arbitral CCI, dans lequel le siège de l’institution d’arbitrage
n’a aucune incidence sur le lieu de la procédure, qui peut être choisi librement par les
parties ou par la Cour internationale d’arbitrage.
Les clauses d’arbitrage font parfois réference au « Règlement d’arbitrage de la CCI à
Paris » ou « de Paris », sans pour autant donner d’indications spécifiques quant au lieu de
l’arbitrage. Dans un tel cas, on peut s’interroger sur la question de savoir si les parties
entendaient désigner Paris comme siège de l’arbitrage ou si la mention de Paris n’est
qu’une indication supplémentaire de l’institution (Y. Derains et E. Schwartz, A Guide to
the ICC Rules of Arbitration: The Hague, 2005, p. 213-214. — W. Craig, W. W. Park et J.
Paulssan, International Chamber of Commerce Arbitration: New York, 2000, p. 186). Un
problème pareil se pose lorsque la clause se réfère à la « CCI de Genève » ou « à Genève »
(CA Paris, 28 oct. 1997, Sté Procédés de Préfabrication pour le Béton c/Lybie: Rev. arb.
1998, p. 399, note de B. Leurent. — Sentence dans l’affaire n° 4023, Y. Derains et S.
Jarvin: Recueil des Sentences Arbitrales CCI, 1974-1985, p. 528). Ce n’est pas le cas de la
clause d’arbitrage ici en question, qui ne contenait aucune référence à Paris ou au siège de
l’institution et qui était donc sans ambiguïté.

II.— La deuxième exception d’incompétence soulevée par la défenderesse portait sur
un problème classique du droit de l’arbitrage, à savoir si la saisine d’une autorité judiciaire
visant à obtenir des mesures provisoires ou conservatoires entraîne une renonciation à la
convention d’arbitrage. La réponse unanime des lois et de la jurisprudence de plusieurs
États, des conventions internationales, des règlements d’ arbitrage et de la doctrine est par la
négative: la conclusion d’une convention d’arbitrage n’est pas incompatible avec une
demande de mesures provisoires et conservatoires adressée à l’autorité étatique (G.
Born, International Commercial Arbitration: Alphen aan den Rijn, 2009, p. 2053-2055.
— A. Carlevaris, La tutela cautelare neU'arbitraio internazionale: Padova 2006, p. 244
249). Cette solution est un corollaire du principe de la compétence concurrente du juge et
-
de l’arbitre pour ordonner des mesures provisoires, duquel s’inspire aujourd’hui la majorité
des ordres juridiques nationaux. Elle s’applique a fortiori dans les systèmes juridiques qui
interdisent à l’arbitre d’ordonner de telles mesures.
Le Règlement CCI affirme le principe à l’article 23, alinéa 2: «La saisine d'une autorité
judiciaire pour obtenir de telles mesures ou pour faire exécuter des mesures semblables
prises par un tribunal arbitral ne contrevient pas à la convention d’arbitrage, ne constitue
pas une renonciation à celle-ci, et ne préjudicie pas à la compétence du tribunal arbitral à
ce titre ». On retrouve une disposition presque identique à l’article 26, alinéa 3, du
Règlement CNUDCI, à l’article VT, alinéa 4, de la Convention de Genève de 1961, à
l’article 9 de la loi modèle CNUDCI et dans toutes les législations qui s’inspirent de
celle-ci. En Suisse, en l’absence d’une disposition expresse, cette solution est retenue
par la doctrine unanime (S. Besson, Arbitrage international et mesures provisoires:
Zurich, 1998, p. 192. — A. Bucher, Le nouvel arbitrage international en Suisse: Baie,
Francfortsur-le-Main, 1988, p. 76. G. Walter, W. Bosch et C. J. Brônnimann,
Internationale Schiedsgerichtsbarkeit in der Schweiz: Berne, 1991, p. 143). Les décisions
arbitrales qui ont consacré le principe sont également abondantes (Sentence rendue dans
l'affaire n° 2444: JDI 1977, p. 932, obs. Y. Derains: « le Tribunal arbitral, dans la présente
affaire, a indiqué que l'accord des parties sur l’arbitrage de la CCI ne les privait pas du
droit de faire procéder à une expertise judiciaire, à titre conservatoire, avant la mise en
Jarvin. — —
route de l’arbitrage ». Sentence rendue dans l’affaire n° 4156: JDI 1984, p. 937, obs. S.
Sentence rendue dans l’affaire n° 6709: JDI 1992, p. 998, obs. D. Hascher).
Cependant, la compatibilité de la saisine du juge étatique des référés avec la convention
d’arbitrage n’est pas absolue. En premier lieu, la demande d’une mesure provisoire et
conservatoire pourrait constituer une violation de l’accord compromissoire et une renon¬
ciation à celui-ci lorsque la convention d’arbitrage exclut le droit des parties de saisir le
juge pour obtenir de telles mesures (G. Born, op. cit. p. 2055). Il en va de même lorsqu’au
lieu d’exclure totalement le pouvoir des parties de saisir l’autorité judiciaire, l’accord des
parties le limite ou le subordonne à des conditions spécifiques (voir, par exemple, l’article
23, alinéa 2, du Règlement CCI, d’après lequel, après la remise du dossier au tribunal
arbitral, la saisine du juge est subordonnée à l’existence de « circonstances appropriées »).
Dans un tel cas, la compatibilité de la demande en référé avec la convention d’arbitrage
dépendra évidemment du respect des ces limites et conditions.
En second lieu, la saisine de l’autorité judiciaire risque de rendre caduque la convention
d’arbitrage lorsque la mesure sollicitée ne peut être qualifiée de provisoire ou conservatoire
et entraîne une ingérence dans la compétence exclusive de l’arbitre sur le fond du litige. Le
respect de cette condition s’avère parfois difficile à vérifier, en l’absence d’une définition
universellement acceptée de la notion de mesures provisoires et conservatoires. La pratique
arbitrale sur cette question est assez abondante. Dans la plupart des cas, les arbitres ont
exclu que l’initiative d’une partie devant le juge étatique comportait renonciation à la
convention d’arbitrage en raison de la nature provisoire ou conservatoire des mesures
sollicitées (V. Sentence rendue dans l’affaire n° 2444, préc.
l'affaire n° 4156, préc. — — Sentence rendue dans
Sentence rendue dans l’affaire n° 4998: JDI 1986, p. 1139, obs.

S. Jarvin. — Sentence rendue dans l 'affaire n° 4415: JDI 1984, p. 952, obs. S. Jarvin.
Sentence rendue dans l’affaire n° 4126: JDI 1984, p. 934, obs. S. Jarvin. — Sentence
—
rendue dans l'affaire n° 5103: JDI 1988, p. 1206, obs. G. Aguilar-Alvarez). En revanche,
dans des cas plus rares, la saisine du juge a été considérée incompatible avec la volonté des
parties de soumettre le litige à l’arbitrage lorsque la mesure solicitée était définitive et
empiétait sur la compétence des arbitres sur le fond du litige (V. Sentence rendue dans
l'affaire «° 5650: Yearbook Commercial Arbitration, 1991, p. 85. — dans la jurisprudence
française, V. Cass. Jr‘civ., 9oct. 1990: Rev. arb. 1991, p. 305, note de M.-L. Niboyet-Hogy.
— pour l’Italie, V. récemment COM., 21 oct. 2009, n° 22236: Rivista dell’arbitrato 2009, p.
709, note A. Carlevaris à propos d’une demande d’expertise judiciaire in Juturum
contra, pour la nature conservatoire d’une telle mesure, V. Cour constitutionnelle, 28
—
janv. 2010, n° 26, Giurisprudenza italiana, 2010, p. 250).
Au vu de ces principes, la décision du tribunal arbitral dans la présente affaire était
largement prévisible, dès lors que la mesure solicitée par la demanderesse devant les
tribunaux algériens (saisie conservatoire) avait indéniablement un caractère conservatoire
et que le tribunal arbitral constata quV aucun élément du dossier ne permet de retenir que
par cette Requête de saisie conservatoire X aurait investi le Tribunal algérois du pouvoir
de statuer sur le fond du litige. Ceci n 'est du reste pas allégué par la Défenderesse dans son
courrier à la Cour internationale d’arbitrage ».
L’initiative de la demanderesse était d’autant plus compatible avec l’accord compro¬
missoire qu’elle intervint avant la saisine du tribunal arbitral. A ce stade, la mesure ne
pouvait être demandée à aucune autre autorité et le Règlement CCI ne limite aucunement le
droit des parties de saisir les juges (<< Les parties peuvent, avant la remise du dossier au
tribunal arbitral [ ... ] demander à toute autorité judiciaire des mesures provisoires ou
conservatoires »).
III.— Contrairement à une demande de mesures provisoires et conservatoires, la
saisine du juge étatique d’une demande portant sur le fond du litige entraîne une renoncia¬
tion à la convention d’arbitrage lorsque l’autre partie accepte de participer à la procédure
— —
sans soulever une exception d’incompétence du juge (P. Fouchard, E. Gaillard et B.
Goldman, op. cit. p. 405, 441.
Commercial Arbitration, 2006, p. 95.
Sentence rendue dans l’affaire n° 10904: Yearbook
pour la Suisse, V. l’article 7 de la loi fédérale de
droit international privé: « Si les parties ont conclu une convention d'arbitrage visant un
différend arbitrable, le tribunal suisse saisi déclinera sa compétence à moins que: a. le
défendeur n 'ait procédé au fond sans faire de réserve »). Dans le cas présent, cet effet était
exclu puisqu’après la saisine du juge étatique par la défenderesse, la demanderesse ayant
engagé la procédure arbitrale. Reconnaître le droit d’une partie de renoncer à la Convention
d’arbitrage en saisissant les tribunaux étatiques priverait l’accord compromissoire de son
efficacité et de sa fonction et équivaudrait à admettre un pouvoir des parties de se libérer
unilatéralement de leurs obligations contractuelles.
L’initiative de la défenderesse ne pouvait pas être considérée comme une acceptation de
la renonciation de la demanderesse, puisque, comme remarqué par le tribunal arbitral et
comme rappelé ci-dessus, la demande de mesures conservatoires de la demanderesse
n’ impliquait pas que la demanderesse avait renoncé à la convention d’arbitrage. La deman¬
deresse n ’avait semble-t-il jamais reçu d’assignation par rapport à la procédure judiciaire et
n avait donc pas été en mesure de soulever une exception d’incompétence devant le juge
étatique. Par conséquent, une acceptation de la renonciation à la convention arbitrale de sa
part n’était meme pas concevable.
Le tribunal arbitral n’ayant pas été informé de la suite qui avait été donnée à la procédure
judiciaire en Algérie et la demanderesse en arbitrage n’ayant apparemment jamais reçu
d assignation par rapport a cette procédure, on ne sait pas sur quelles bases juridiques la
876 Reprinted ftom the Clunet

-I

défenderesse en arbitrage avait invoqué la compétence du tribunal étatique. On peut cepen¬
dant supposer qu’elle avait soulevé devant le juge algérien que la convention d’arbitrage
était « caduque, inopérante ou non susceptible d’être appliquée » (Cottv. New York, art. II,
al. 3) pour des raisons semblables à celles qu’elle avait invoqué dans sa correspondance
avec le Secrétariat de la CCI. Si tel est bien le cas, indépendamment du bien-fondé de ses
objections, la défenderesse aurait pu demander au tribunal arbitral de suspendre la procé¬
dure arbitrale jusqu’à la décision du juge étatique sur sa propre compétence, en vertu de la
jurisprudence Fomento (ATF 127 hi 279; Rev. arb., 2001, p. 835, note J.-F. Poudret;
Revue suisse de droit international et de droit européen, 2001, p. 554, note F.
Knoepfler) et de l’application à l’arbitrage des conséquences de la litispendance (article
9 de la loi fédérale de droit international privé: « Lorsqu’une action ayant le même objet est
déjà pendante entre les mêmes parties à l'étranger, le tribunal suisse suspend la cause s 'il
Üf est à prévoir que la juridiction étrangère rendra, dans un délai convenable, une décision
pouvant être reconnue en Suisse »). Suite à l’entrée en vigueur de l’article 186, alinéa 1 bis,
de la loi de droit international privé, cette solution n’est plus admissible aujourd’hui et ne
l’était pas à l’époque de la sentence ici rapportée, qui fut rendue quelques semaines après
l’entrée en vigueur de l’article 186, alinéa 1 bis (pour l’applicabilité immédiate de cette
disposition aux procédures arbitrales en cours dès son entrée en vigueur, V. S. Besson, The
Relationships between Court and Arbitral Jurisdiction: the Impact of the New Article 186(1
bis) PILS, C. Müller, New Developments in International Commercial Arbitration 2007:
Zurich, Basel, Geneva, 2007, p. 76-77). La nouvelle disposition permet à l’arbitre de
procéder à l’examen de sa propre compétence malgré l’existence d’une procédure étatique
portant sur le même litige («H statue sur sa compétence sans égard à une action ayant le
même objet déjà pendante entre les mêmes parties devant un autre tribunal étatique ou
arbitral, sauf si des motifs sérieux commandent de suspendre la procédure »).
A. C.
Mots-Clés; Arbitrage international

Kí-viffi
française)
L
CCI.
—— Demandes nouvelles.
Recevabilité. — —
Article 19 du Règlement d’arbitrage de la
Pouvoir du tribunal arbitral.
II. —
Compétence matérielle du tribunal arbitral. — Portée de la clause
compromissoire. —
Responsabilité civile délictuelle.
Une société française (la demanderesse X) a conclu en 2004 un contrat d’assistance

technique dans le secteur minier avec une société d’Europe centrale (la défenderesse Y).
Suite à un changement de contrôle de son actionnariat, la défenderesse a rompu le contrat
unilatéralement et brutalement sans respecter le préavis contractuel prévu ni payer le
solde des factures.
La demanderesse a alors saisi la Cour internationale d'arbitrage de la CCI aux fins de
faire constater que la résiliation du contrat était fautive et d’obtenir le paiement du solde
de ses factures en application du droit français.
L'arbitre unique, siégeant à Paris, a établi l’acte de mission et le calendrier provision¬
nel en accord avec les parties conformément au Règlement d'arbitrage de la CCI (le «
Règlement CCI »).
Dans le cadre de son mémoire, la demanderesse a sollicité de l'arbitre unique qu'il
déclare que la rupture du contrat a été abusive et qu‘il condamne la défenderesse au
paiement de la réparation de son préjudice.
Dans son mémoire en défense, la défenderesse a soulevé trois objections liminaires:
« i. Certaines demandes outrepasseraient la mission de l’Arbitre telle qu’elle est
définie aux Articles 4.1 et 5.1 de l’Acte de mission et seraient par conséquent
irrecevables par application de l'article 19 du Règlement CCI. La Défenderesse
fait ainsi valoir dans son mémoire en Défense: « Cette demande de [X] [fondée sur
la responsabilité civile délictuelle] invoquée pour la première fois dans son Mém¬
oire [Récapitulatif], est une demande nouvelle quant à son fondement, son objet et
son montant. Cette demande dépasse les limites de l'Acte de Mission et constitue
une demande nouvelle au sens de l'Article 19 du Règlement de la Cour interna¬
tionale d'arbitrage de Paris (...). Or [X] n'a, à aucun moment, sollicité l'auto¬
risation de l’Arbitre Unique pour présenter ces demandes nouvelles . . .
ii. Les demandes de nature délictuelle ne relèveraient pas de la compétence
matérielle de l’Arbitre Unique étant donné la rédaction de la clause compromis¬
soire et l'interprétation faite de ces clauses par les juridictions françaises. La
Défenderesse fait à cet égard référence à l'affaire « Casino » de la cour
d'appel de Paris en date du 6 avril 2006 . . .
iii. Les réclamations fondées sur les factures ne seraient pas de la compétence
de l'Arbitre Unique car les factures dont le paiement est demandé contiennent une
clause attributive de juridiction au profit du Tribunal de commerce de [ville fran¬
çaise], clause qui ferait échec à la compétence de l'Arbitre Unique. »
Lors de l’audience des parties, la demanderesse a fait valoir devant l’arbitre que:
« i. L’Acte de mission, et plus particulièrement l'Article 5.1, portait en germe les
demandes ultérieures de la Demanderesse, qui ne peuvent par conséquent pas être
considérées comme nouvelles au sens de l’Article 19 du Règlement CCI.
ii. La clause compromissoire serait large et non pas restrictive, et elle englo¬
berait donc tant les litiges contractuels que délictuels.

Hi. La Demanderesse a reconnu lors de l‘Audience que les factures contenaient

une clause attributive de juridiction mais soutenait qu'elle ne souhaitait pas se
prévaloir de cette clause, qui lui serait par conséquent inopposable. »
L’arbitre unique siégeant à Paris a fait droit à l’argumentation de la demanderesse en
s’appuyant sur l’Acte de mission signé par les parties. Il a rejeté les objections soulevées
par la défenderesse dans les termes suivants:
« 1. Objections fondées sur l'Article 19 du Règlement CCI
78. Il convient tout d’abord de rappeler que l’Acte de mission prévoit:
« 4. DÉCISIONS SOLLICITÉES
A. La Demanderesse
4.1. Vu l’article 1134 du Code civil, Vu les articles 1146 et suivants du Code
civil, Condamner la Société (défenderesse) à payer à la société [demanderesse] la
somme de 300 000 €correspondant aux honoraires annuels calculés sur la base
des tarifs conventionnels et la somme de 29 825 €au titre des prestations passées
soit la somme de 339 825 €avec intérêt au taux légal à compter de la mise en
demeure. Condamner la société [défenderesse] aux entiers frais de justice. ( . . . )
5.1. Au moment de la signature de l'Acte de Mission, le montant du litige est
provisoirement estimé à 345 724 €, soit:
—— 300 000 €au titre de la demande pour non-respect du préavis contractuel;
45 724 €au titre de la demande pour factures impayées.
La Demanderesse a toutefois précisé dans ses commentaires sur le projet n° 1
d’Acte de Mission en date du [date] 2006 que sa demande sera portée à une somme
proche de 600 000 €intégrant le préjudice lié à la brusque rupture, au rembourse¬
ment des frais engagés, préjudice lié à la perte de personnel qualifié et le préjudice
lié à l’arrêt brusque d'une mission qui a nécessité la mise en place dim outil sur
place en la création de [société Z] ».
79. Tout d’abord, il semble incontestable que les demandes de la Demanderesse
que la Défenderesse qualifie de « nouvelles » avaient été annoncées par la Deman¬
deresse lors de ses commentaires au Projet n° 1 d’Acte de Mission et que ce fait
avait bien été à l 'Article 5.1 del 'Acte de Mission. En effet, le second paragraphe de
cet Article prévoit:
« La Demanderesse a toutefois précisé dans ses commentaires sur le projet n° 1
d’Acte de Mission en date du [ . .. ] 2006 que sa demande sera portée à une somme
proche de 600 000 €intégrant le préjudice lié à la brusque rupture, au rembourse¬
ment des frais engagés, préjudice lié à la perte de personnel qualifié et le préjudice
lié à l'arrêt brusque d’une mission qui a nécessité la mise en place d’un outil sur
place en la création de [société Z]. »
80. En conséquence, la Demanderesse ne se trouvait pas dans l'obligation de
demander l 'autorisation de l‘Arbitre Unique pour présenter ses demandes fondées
sur les principes de la responsabilité civile délictuelle.
81. En outre, il semble clair quel 'article 19 du Règlement poursuit la finalité de
garantir le procès équitable en limitant la soumission de nouvelles demandes par
les parties de manière tardive, voire opportuniste.
82. En l'espèce, les demandes ont été annoncées au second paragraphe de
l'Article 5.1 de l’Acte de mission souscrit par les parties et développées dans le
Mémoire Récapitulatif. Il n'est pas du tout extraordinaire dans l’arbitrage
international sous l 'égide de la CCI que les demandes de la Demanderesse soient
précisées au premier mémoire post-Acte de mission.
83. La Défenderesse a donc eu l'opportunité de répondre à ces demandes dans
son Mémoire en Défense. En effet, la Défenderesse ne s 'est pas limitée à soulever
l'irrecevabilité des demandes de la Demanderesse fondées sur la responsabilité
civile délictuelle. La Défenderesse a également objecté à ces demandes en

. — '-V
— -'ÿi ~~ :.VJ “ ■
-v i.:. ™
s
alléguant l 'incompétence matérielle de l 'Arbitre Unique pour en prendre connais¬
sance et les trancher et y a même répondu au fond. Les parties ont également eu
l'occasion d’en débattre lors de l’Audience. Ainsi les droits de la défense de la
Défenderesse et le principe du contradictoire ont-ils été parfaitement respectés en
l'espèce.
85. Un ancien Secrétaire général de la Cour rappelait ainsi dans un récent
article que les tribunaux CCI prennent couramment en considération le souhait de
résoudre tous les litiges relatifs à une même relation d’affaires au cours d’une seule
procédure afin d'éviter la multiplication des procédures arbitrales (E. Schwartz,
Les nouvelles demandes: comment s 'orienter au sein de l’article 19 du règlement
d’arbitrage de la CCI: Bull. CCI. Vol. XVI1/2, 2006). L'auteur fait à cet égard
référence à la Sentence CCI N° 10660 aux termes de laquelle le tribunal arbitral
accepte de se prononcer sur certaines demandes « having regard to the desirability
of dealing with all the disputes between the parties in a single arbitration ».
L’auteur fait également référence à la Sentence CCI N° 11365 selon laquelle:
« refuser l’admissibilité de ces demandes nouvelles contraindrait la Demanderesse
à introduire une nouvelle demande d’arbitrage ce qui aurait pour effet d’augment¬
er considérablement les coûts de l 'arbitrage » (Bull. CCI, Vol. XVII/2, p. 81 et 93).
86. Pour toutes ces raisons, l'Arbitre Unique déclarera les demandes de la
Demanderesse sur le fondement de la responsabilité civile délictuelle recevables.
2. Objections fondées sur la compétence matérielle de l'Arbitre Unique
87. Pour le cas où l'Arbitre Unique déclarerait les demandes sur le fondement
de la responsabilité civile délictuelle recevables, la Défenderesse soulève des
objections à la compétence matérielle de l'Arbitre Unique à leur égard.
88. La Défenderesse allègue que l’absence dans la clause compromissoire
insérée dans le Contrat de la phrase « tous différends en relation avec le contrat »
ou de toute expression équivalente devrait être interprétée par l’Arbitre Unique
dans le sens de limiter sa compétence matérielle aux différends de nature contrac¬
tuelle.
89. L’Arbitre Unique ne partage pas l'interprétation proposée par la
Défenderesse.
90. Tout d’abord, l'Arbitre Unique est d'avis que la phrase utilisée dans la
clause compromissoire insérée dans le Contrat - « En cas de contestation » -
est suffisamment large pour englober tant des différends de nature contractuelle
que des différends de nature délictuelle. En effet, cette expression ne spécifie pas si
la contestation « doit découler » du Contrat ou « doit garder une relation avec
celui-ci ». L'Arbitre Unique doit par conséquent appliquer l’adage selon lequel
l’interprète ne doit distinguer là où le rédacteur ne l'a pas fait.
91. De surcroît, la Défenderesse n 'a apporté aucune preuve de l 'ambiguité de la
clause compromissoire insérée dans le Contrat ou de la commune intention des
parties de limiter la portée matérielle de celle-ci à la résolution de différends de
■
nature contractuelle.
92. En outre, une analyse de la jurisprudence arbitrale CCI (Sentence CCI
N° 6618; Sentence CCI N° 7924; Sentence CCI N° 9517: Bull. CCI, Vol. XIIU2
(2002), p. 68 et s.) portant sur des objections à la compétence matérielle du tribunal
arbitral similaires à celles soulevées par la Défenderesse démontre que d'autres
tribunaux arbitraux se sont déclarés incompétents seulement lorsqu'il ressortissait
clairement de la phraséologie de la clause compromissoire que la commune inten¬
tion des parties avait été de limiter la portée matérielle de celle-ci à la résolution
des litiges découlant du contrat, c 'est-à-dire de nature contractuelle (voir égale¬
ment Sentence CCI N° 12363, ASA Bulletin, Vol. 24, N° 3 (2006), p. 462-470;
Sentence CCI N° 5285 de 1989, Recueil des sentences arbitrales de la CCI, Vol. III,
p. 321).

93. L'Arbitre Unique considère enfin que l’affaire « Casino » doit être distin¬
guée de la présente affaire. La compétence du tribunal arbitral dans l’affaire
Casino résultait d’un compromis d’arbitrage qui ne saurait être comparé avec
la clause compromissoire du présent litige. En effet, l'article 1448 du nouveau
Code de procédure civile français prévoit que le compromis d’arbitrage doit, à
peine de nullité, déterminer l’objet du litige. Tel n’est pas le cas de la clause
compromissoire. Or, si le compromis d'arbitrage conclu par les parties dans
l’affaire Casino délimitait l’objet du litige, et si la compétence des arbitres était
circonscrite à la recherche de la responsabilité contractuelle de Casino, une telle
limitation ne peut être trouvée à l'Article 8 du Contrat dans celte affaire.
94. Pour toutes ces raisons, l’Arbitre Unique se déclarera compétent pour
trancher au fond les demandes de la Demanderesse fondées sur les principes de
la responsabilité civile délictuelle . . . ».
S’agissant des objections de la défenderesse fondées sur la présence d’une clause
attributive de juridiction dans les factures, celles-ci ont été finalement retirées par la
défenderesse qui a accepté de les soumettre à l’examen de l’arbitre.
NOTE. — — I. La sentence commentée est intéressante sur un double plan. Elle
rappelle tout d’abord l’importance de l’acte de mission signé par les parties dans le cadre
d’une procédure d’arbitrage CCI. En tant que document contractuel qui lie les parties et le
tribunal arbitral, l’acte de mission va fixer la mission du tribunal arbitral, délimiter l’objet
du litige ou encore définir dès le début le cadre de l’arbitrage (V. plus généralement S.
Lazareff, L'acte de mission: Bulletin de la Cour internationale d’arbitrage de la CCI 2006,
Vol. 17, N° 1, p. 22. — P. Sanders, The Terms of Reference in ICC Arbitration in Liber
Amicorum in honour of Robert Briner 2005, p. 693. — Th. Webster, Terms of Reference
and French Annulment Proceedings: Journal of International Arbitration 2003, Vol. 20, N°
6, p. 561. Fouchard/Gaillard/Goldman, Traité de l’arbitrage commercial
international: Kluwer 1996, paras. 1231-1234).
De ce fait, lorsque le tribunal arbitral est saisi par une partie d’une demande postér¬
ieurement à l’établissement de l’acte de mission, il doit vérifier si cette demande entre dans
les limites dudit acte.
Conformément à l’article 19 du Règlement CCI, qui a été introduit dans le Règlement
CCI de 1998 en remplacement de l’article 16 du Règlement CCI de 1988, « les parties ne
peuvent formuler de nouvelles demandes, reconventionnelles ou non, hors des limites de
l’acte de mission, sauf autorisation du tribunal arbitral qui tiendra compte de la nature de
ces nouvelles demandes principales ou reconventionnelles, de l'état d’avancement de la
procédure et de toutes autres circonstances pertinentes ».
La recevabilité des demandes nouvelles est donc admise sous réserve du contrôle du
tribunal arbitral qui doit décider si elles se rattachent par un lien suffisant avec les préten¬
tions originaires de la partie et si elles affectent la progression de la procédure. En l’absence
de précisions sur la question de savoir ce qui constitue une demande nouvelle au sens de
l’article 19 du Règlement CCI, le tribunal arbitral est libre d’interpréter l’article 1 9 sachant
que la qualification de demande nouvelle dépend largement de la manière dont la demande
a été décrite dans l’acte de mission (pour une discussion plus générale sur la notion de
demandes nouvelles, V. Pryles/Waincymer, Multiple Claims in Arbitration Between the
Same Parties in ICCA Congress Series 2009, p. 437. — E. Schwartz, Les « demandes
nouvelles »: comment s’orienter au sein de l’article 19 du règlement d’arbitrage de la CC:
Bulletin de la Cour internationale d’arbitrage de la CCI 2006, Vol. 17, N° 2, p. 57 citée par
l’arbitre dans la sentence commentée. — V. également Derains/Schwartz, Guide to the
ICC Rules of Arbitration: Kluwer 2005, 2e éd., p. 265.
— Y. Derains, Amendments to the
claims and new claims: where to draw the line? in Arbitral Procedure at the Dawn of the
New Millenium: CEPANI, Brussels, October 14-15, 2004, p. 65 et s.).

!
Dans le cas présent, l’arbitre n’a pas eu besoin de qualifier la demande car il s’agissait
d'une demande de dommages-intérêts fondée sur la responsabilité civile délictuelle. Celle-
ci a été d’ailleurs annoncée par la demanderesse dans ses commentaires au projet d’acte de
mission puis mentionnée dans le document définitif signé par les parties (art. 5. 1). De ce
fait, la demanderesse n’a fait que préciser ses demandes après la signature de l’acte de
mission, ce qui a permis à la défenderesse d’y répondre dans le cadre normal de l’échange
des mémoires prévu dans le calendrier procédural et d’en débattre ensuite à l’audience
devant l’arbitre. Les droits de la défense et le principe du contradictoire ayant été respectés,
rien ne s’opposait à l’examen de la demande formulée par la demanderesse d’autant plus
que la procédure n’était pas retardée.
S’il est exact « qu’il n 'est pas du tout extraordinaire dans l’arbitrage international sous
l’égide de la CCI que les demandes de la Demanderesse soient précisées ait premier
mémoire post-Acte de mission », et que « [n]id ne doit enfin perdre de vue que l’une
des finalités majeures de tout mécanisme de résolution de différends est de mettre fin
une fois pour toutes au différend opposant les parties », le souci légitime de l’arbitre
d’éviter une multiplication des procédures arbitrales est acceptable seulement si les
parties - en l’occurrence la demanderesse - ont respecté les règles de la loyauté et de la
bonne foi. A défaut, en cas de comportement déloyal prouvé, elles devraient en assumer les
conséquences.
S’agissant d’un arbitrage qui a lieu à Paris, il est opportun de se rappeler également la
règle de la concentration des moyens qui est à la charge des parties à l’instance.
Aux termes de l’arrêt de la première chambre civile de la Cour de Cassation du 28 mai
2008, « il incombe au demandeur de présenter dans la même instance toutes les demandes
fondées sur la même cause; il ne peut invoquer dans une instance postérieure un fondement
juridique qu’il s’était abstenu de soulever en temps utile. En déclarant la demande de
dommages-intérêts recevable, la cour d’appel a violé l’autorité de la chose jugée »
(Cass. Ire civ., 28 mai 2008, n° 07-13.266, Sté G et A Distribution ci SAS Prodim: Rev.
arb. 2008, n° 3 p. 461, note L. Weiller). Le demandeur doit donc regrouper toutes ses
demandes en début d’instance, faute de quoi, il risque de se voir opposer l’irrecevabilité de
ses prétentions.
Rappelons qu’un contrat de distribution a été résilié par le franchisé, la société G et A
Distribution, pour manquement du franchiseur, la société Prodim, à ses obligations con¬
tractuelles. Dans le cadre d’un premier arbitrage introduit par le franchiseur, le tribunal
arbitral a reconnu la responsabilité du franchisé. Le tribunal a toutefois rejeté la demande
du franchiseur tendant à la dépose de l’enseigne ayant observé qu’aucune demande
de dommages-intérêts n’a été formulée par le franchiseur pour non-respect de la clause
de non-réaffiliation.
Le franchiseur a alors introduit une deuxième procédure d’arbitrage pour obtenir
l’indemnisation visée, ce qu’il a réussi auprès du nouvel tribunal arbitral. Le franchisé a
alors formé un recours en annulation de la sentence arbitrale devant la cour d’appel de
Caen, dont la décision a été cassée par la deuxième chambre de la Cour de cassation
(V. Cass. 2e civ., 8 juill. 2001, n° 02-30.800). La cour d’appel de Versailles, saisie sur
renvoi, a déclaré recevable la demande de dommages-intérêts du franchiseur pour man¬
quement contractuel du franchisé à son obligation de non-réaffiliation. En décidant ainsi,
les juges versaillais ont écarté la fin de non-recevoir tirée de l’autorité de la chose jugée
ayant estimé que la première sentence arbitrale s’est prononcée seulement sur la question
de la dépose de l’enseigne et non pas sur la demande de dommages-intérêts pour violation
du contrat. Ce raisonnement a été sanctionné par la Cour de cassation en application de la
règle de concentration des moyens. En d’autres termes, les parties ne doivent pas se tenir «
en embuscade » mais agir avec rigueur en présentant tous les moyens de défense dès
l’instance relative à la première demande. A défaut, l’invocation ultérieure du moyen
risque d’être considérée comme tardive et rejetée par le juge ou le nouveau tribunal arbitral

2008, II, 10156, p. 31.

—
(G. Chabot, Application à l’arbitrage de la règle de « concentration des moyens »: JCP G
CA Versailles, 30janv. 2007, n° 05/354. —
V. également Cass.
P" civ., 7 févr. 2008, Société française de rentes et de financement Crédirente c/
Compagnie générale de garantie SA: Rev. arb. 2008, «° 3, p. 501, note J.-B. Racine.
— plus généralement, V. E. Loquin, De l’obligation de concentrer les demandes dans
l'arbitrage: Rev. arb. 2010, n° 2, p. 201).
—
II. - L’objection de la défenderesse fondée sur la portée limitée de la clause com¬
promissoire est classique et n’appelle pas de commentaires particuliers.
Comme observé justement par l’arbitre, sa compétence ne saurait être limitée aux
différends contractuels dès lors que la rédaction de la clause compromissoire est suffisam¬
ment générale pour lui permettre d'examiner également les différends de nature délictuelle.
C’est le cas en l’occurrence car la clause compromissoire était ainsi rédigée: « En cas de
contestation, le conflit sera tranché par la Cour d’arbitrage du Tribunal de la Chambre de
commerce internationale de Paris, saisie sur l’initiative de la partie la plus diligente. La loi
française sera appliquée et la langue française sera utilisée pour la procédure ».
Dès lors, en l’absence d’une volonté clairement exprimée des parties de limiter le champ
de compétence du tribunal arbitral ou d’exclure explicitement un type de litige, l’expres¬
sion « en cas de contestation » mentionnée dans la clause compromissoire qui oppose les
parties dans l’espèce commentée est assez large pour permettre à l’arbitre de se prononcer
sur l’ensemble des demandes de la demanderesse fondées sur les principes de la respons¬
abilité civile contractuelle et délictuelle.
Cette approche s’inscrit dans une tendance de la pratique arbitrale favorable à une
interprétation large de la clause compromissoire ou de la volonté réelle des parties.
L’objectif poursuivi est de favoriser autant qu’il est possible l’efficacité de la clause
compromissoire (V. notamment Blackaby/Partasides/Redfern/Hunter, On International
Arbitration, 5th ed, OUP 2009, § 2.57, p. 107. — E Jolivet, L 'incompétence de l’arbitre
in Chronique de jurisprudence arbitrale de la CCI et Les Cahiers de l’Arbitrage, Vol. IV:
Pedone 2008, p. 345. — C. Truong, Les différends liés à la rupture des contrats inter¬
nationaux de distribution dans les sentences arbitrales CCI: Litec 2001, § 54, p. 52).
S. J.
C. T.-N.
Compétence matérielle du tribunal arbitral

'
I. — Convention d’arbitrage. —
Portée ratione personae de la clause
compromissoire. —
Extension à une partie non signataire. —
Intervention de
la partie non signataire dans la négociation et l’exécution du contrat.
Théorie du groupe de sociétés. Exception d’incompétence (non) et
—
exception de recevabilité de la demande (oui).
n. Contrat.
réparation du préjudice. ——
Réparation des dommages.
Partie lésée.
— Droit à réclamer la
DI. —Responsabilité civile. —

Responsabilité fondée sur la confiance. —
Autonomie. Portée ratione materiae de la clause compromissoire.
Compétence du tribunal arbitral. —
Cumul de responsabilité contractuelle et
—
responsabilité fondée sur la confiance (non).
IV. — Frais de l’arbitrage. —
Frais de l’arbitrage et frais et honoraires
Critères
d’avocats. Article 31 du Règlement d’arbitrage CCI.
d’allocation des fiais. —
Pouvoir discrétionnaire de l’arbitre.
L'arbitre unique déboute les demanderesses de leur demande tendant à ce que la

défenderesse soit déclarée responsable pour violation du contrat et condamnée à payer
aux demanderesses une somme correspondant à la quantité de marchandises non livrées.
L’arbitre unique déclare la demande de la demanderesse n° 1 irrecevable et rejette la
demande de la demanderesse «° 2.
L'arbitre unique déboute également les demanderesses de leur demande alternative
fondée sur la confiance.
L’arbitre unique décide que les parties supportent les frais de l’arbitrage à parts égales
et que chacune d’elles supporte ses propres frais légaux.
Une société de Saint-Christophe-et-Nevis A (demanderesse n° 1) achetait à une société
ukrainienne B (demanderesse n° 2) des grains de tournesol et de céréales, que B, à son tour,
achetait auprès des producteurs ukrainiens.
Au lieu de contracter directement entre elles, A et B eurent recours à un intermédiaire X
(qui n’est pas partie à l’arbitrage), auquel A était liée par un contrat-cadre prévoyant l’achat
d’une quantité globale de produits. Les quantités de marchandise achetées pour chaque
livraison étaient ensuite définies dans des addenda au contrat-cadre. L’intermédiaire X et
B, demanderesse n° 2, conclurent un contrat similaire à celui passé entre A et X, prévoyant
l’achat par X des marchandises de B.
L’achat des marchandises par la demanderesse n° 1 s’effectuait principalement par le
biais d’un crédit octroyé par la banque Y (qui n’est pas partie à l’arbitrage) sur la base de
garanties qui lui étaient fournies sous la forme d’un nantissement des stocks des march¬
andises dont la demanderesse n° 2 était la propriétaire.
La défenderesse C est une société de surveillance chargée de vérifier l’existence et les
quantités des stocks entreposées pour le compte de la banque Y.
Cette relation contractuelle complexe était répercutée dans un « Collateral Management
Agreement » (« CMA », signé par la demanderesse n° 1, sous réserve de ce qui est dit
Reprinted from the Ciunet 885

ci-après, la demanderesse n° 2, la banque Y et la défenderesse C), qui contenait la clause

d’arbitrage sur la base de laquelle la procédure arbitrale fut initiée. Ce mécanisme, qui
permettait à la demanderesse n° 1 de préfinancer l’achat des marchandises auprès des
producteurs locaux, est décrit par l’arbitre unique dans les termes suivants:
« En pratique, le premier Demandeur achète des produits qui ne sont pas encore
dans les stocks de [la demanderesse n° 2], Le montant versé au titre de l’achat de
ces produits sert à financer en amont l'achat de grains. Ainsi, le premier Deman¬
deur pré-finance l'opération auprès des producteurs locaux. Ce préfinancement
s ’effectue soit par le biais d 'un crédit consenti par la [banque Y], soit sur les fonds
propres du premier Demandeur, soit de façon mixte [ ... ]
La [banque Y], en octroyant le crédit, demande à ce que des garanties lui soient
fournies sous la forme d'un nantissement des stocks de grains propriétés de [la
demanderesse n° 2] [ ... ]
Dans le cadre de cette relation commerciale, il est mis en place un « Collateral
Management Agreement » entre le premier Demandeur, [a demanderesse n° 2], la
[banque Y] et une société de surveillance qui a pour mission de vérifier l'existence
de la marchandise nantie et de contrôler les entrées et sorties de ces marchandises
[. . . 7 ».[FDCITBL]
Les demanderesses soutenaient que la défenderesse avait procédé à la mesure
des marchandises avec une légèreté coupable et n’avait pas vérifié de façon dili¬
gente les entrées et sorties de marchandises en violation du CMA. La faute ainsi
commise aurait causé un préjudice aux demanderesses, correspondant à la valeur de
la marchandise manquante.
L'arbitre unique examina tout d’abord l’exception de recevabilité des préten¬
tions de la demanderesse nc 1 soulevée par la défenderesse sur la base de l’identité
de l’entité signataire du CMA. Cette dernière était indiquée dans le CMA comme
étant une société de droit suisse, alors que la demanderesse n° 1 était une société de
droit de Saint-Christophe-et-Nevis.
À l’appui de son exception, la défenderesse alléguait que l’entité de Saint-
Christophe-et-Nevis n’étant pas partie au contrat sur la base duquel les demander¬
esses avaient formulé leurs demandes, elle ne pouvait pas se prévaloir de la con¬
vention d’arbitrage y insérée. Dans un premier temps, la défenderesse avait donc
conclu à l’incompétence de l’arbitre unique à l’égard de la demanderesse n° 1. Au
cours de la procédure, la défenderesse admit ne pas avoir soulevé cette exception
d’incompétence in limine litis, comme le prévoit l’article 186, alinéa 2, de la Loi
fédérale de droit international privé suisse, et retira son exception d’incompétence.
En revanche, la défenderesse confirma son exception de recevabilité de la demande
de la demanderesse n“ 1 du fait de son absence de qualité de partie au CMA. Elle
soutenait qu’elle n’était tenue par aucune obligation à l’égard de la demanderesse
n° 1, et que cette dernière n’avait pas qualité pour agir dans la procédure arbitrale.
Les demanderesses soutenaient que la société de Saint-Christophe-et-Nevis était
partie au contrat et que la défenderesse connaissait parfaitement la distinction entre
la société suisse et celle de Saint-Christophe-et-Nevis, ce qui serait démontré par le
fait qu’elle avait toujours émis ses factures au nom de la société de Saint-
Christophe-et-Nevis.
L’arbitre constata que la défenderesse avait retiré l’exception d’incompétence
et se déclara compétent pour se prononcer sur la demande de la demanderesse
n° 1. S’agissant de la recevabilité de cette demande, il considéra que la partie au
CMA était effectivement l’entité suisse et, par conséquent, il admit l’exception.
Il se référa notamment à l’adresse de la demanderesse n° 1 telle qu’indiquée
sur le CMA, qui laissait présumer que son domicile social était bien en Suisse et
que la société suisse et la société de Saint-Christophe-et-Nevis étaient des per¬
sonnes juridiques distinctes. Il conclut que la demanderesse n° 1 n’étant pas

partie au CMA, la défenderesse ne pouvait être tenue par aucune obligation à

son égard:
« Compte tenu des allégations des Parties, il convient de déterminer laquelle de
[la demanderesse n° 1] ou [l'entité suisse] a souscrit les obligations résultant du
CMA [...J
À cet égard, l'examen de la première page et de la page de signature du CMA
permet de constater que [l’entité suisse] est l 'une des parties au CMA en tant que
« Receiver ». La seule adresse qui figure à la suite de /7’en tité suisse] est /7'adresse
en Suisse],
L’Arbitre Unique estime également que l’indication d'une adresse en dessous
du nom d'une partie au contrat, sans autre précision, laisse présumer que cette
¿¡ÿr adresse est celle du domicile social de la partie identifiée comme partie au contrat
[...] Or, il ressort des pièces versées aux débats que [la demanderesse n° 1] n'a
-i. pas apporté la prettve que MM. [...], signataires du CMA, avaient l'autorité
pour engager [la demanderesse n° 1] [ ... ]
Sur la base des arguments respectifs des Parties et des pièces versées aux
débats, l'Arbitre doit en conclure que [l’entité suisse] et [la demanderesse n° 1]
étant des personnes juridiques distinctes, il ne peut pas être considéré que [la
demanderesse n° 1] soit partie au CMA.
En conséquence de quoi, l’Arbitre Unique décide, que [la défenderesse] ne peut
être tenue par aucune obligation à l'égard de [la demanderesse n° 1] au titre du
CMA, car elle n 'est manifestement pas partie au CMA.
Les demandes de [la demanderesse n° 1] à l’encontre de [la défenderesse]
doivent donc être déclarées irrecevables ».
L’arbitre examina ensuite l’argument subsidiaire de la demanderesse n° 1, qui avait
invoqué l’extension de la convention d’arbitrage contenue au CMA à son égard sur la base
de certains précédents CCI. Il rejeta cet argument de façon très nette:
« A titre subsidiaire, [la demanderesse n° 1] sollicit[e], toutefois, que la clause
compromissoire contenue au CMA lui soit étendue, en s'appuyant notamment sur
certaines sentences CCI [ÿÿÿ]ÿ Or, les Demandeurs n 'avancent aucune thèse
permettant à l 'Arbitre Unique de déterminer si [la demanderesse n° 1] peut se
prévaloir de la clause compromissoire contenue dans le CMA. En conséquence de
quoi, l'Arbitre Unique décide que [la demanderesse n° 1] ne peut pas bénéficier de
la clause compromissoire contenue dans le CMA, à défaut d 'avoir souscrit expres¬
sément une telle clause ou d'avoir prouvé qu'elle y avait adhéré sur le fondement
d’une théorie quelle qu 'elle soit ».
À l’appui de sa demande, la demanderesse n° 2 soutenait que la banque Y avait libéré des
fonds en faveur de la demanderesse n° 1 en raison de la quantité de marchandises entre¬
posées, et que la demanderesse n° 1 avait payé la demanderesse n° 2, qui avait, àson tour,
payé les fournisseurs. Par conséquent, la demanderesse n° 2 était débitrice de la deman¬
deresse n° 1 d’un montant correspondant à la marchandise manquante.
La défenderesse contestait cette thèse. Elle soutenait, entre autres, que la demanderesse
n° 2 n’avait pas qualité pour agir sur le fondement du CMA, car les fonds correspondant à la
marchandise manquante n’avaient pas été perçus par la demanderesse n° 2, mais par une
société tierce Z, qui avait ensuite payé les fournisseurs.
La demanderesse n° 2 n’ayant pas apporté la preuve qu’elle avait subi un dommage
direct, l’arbitre unique la débouta de ses prétentions contractuelles:
« L 'Arbitre Unique considère que [la demanderesse n° 2] n'a subi aucun préjudice
direct. D 'une part, au motif que le crédit octroyé par la [banque Y] a été versé à
/7'intermédiaire X], ce qui est reconnu par [la demanderesse n° 2] en affirmant que
/7'intermédiaire X] n 'est qu 'une société intermédiaire destinée à récupérer la TVA
,
[ ... ] D'autre part, du fait que la société qui aurait payé la marchandise inex¬
istante est [la société Z] et non le deuxième demandeur [...]».
L’arbitre unique examina ensuite la demande introduite à titre alternatif par les deman¬
deresses sur la base de la doctrine de la « confiance », telle qu’établie par certains aiTêts du
Tribunal fédéral suisse. Il considéra que la responsabilité fondée sur la confiance est
autonome par rapport aux autres types de responsabilité, notamment la responsabilité
contractuelle, et que les différents régimes de responsabilité ne sauraient pas être cumulés.
Les demanderesses ne pouvaient pas se prévaloir de la confiance car elles avaient initié
l’arbitrage sur le fondement de la responsabilité contractuelle de la défenderesse:
« La mise en jeu de la responsabilité fondée sur la confiance implique que la
responsabilité contractuelle ne puisse pas jouer, autrement elle viendrait se cumu¬
ler avec cette dernière, en présence d’une relation contractuelle. La responsabilité
fondée sur la confiance est, ainsi, autonome par apport [sic] aux autres types de
responsabilité civile [... J
il en résulte que [la demanderesse n° 2] étant partie au CMA et ayant initié cet
arbitrage sur le fondement de la responsabilité contractuelle, [la demanderesse
n° 2] ne peut se prévaloir du chef de responsabilité fondée sur la confiance.
En l’espèce, les Demandeurs soutiennent que [ . . . ] la marchandise annoncée
par [la défenderesse] ne se trouvait pas dans les entrepôts et de ce fait les attentes
des Demandeurs ont été déçues.
Or, cette argumentation, applicable uniquement à [la demanderesse n° 1], en
raison de la décision prise par l’Arbitre Unique à l’égard de [la demanderesse
n° 2] sur ce point [..-], est fondée sur l’inexécution d’une obligation contrac¬
tuelle résultant du CMA. En conséquence de quoi, l’Arbitre Unique décide que [la
demanderesse n° 1] n’étant pas partie au CMA, ne peut pas se prévaloir d’une
éventuelle inexécution du CMA de la part de [la défenderesse], pour engager la
responsabilité fondée sur la confiance à l’encontre de cette dernière, car ceci
impliquerait qu’il pourrait y avoir un cumul entre les deux régimes de respons¬
abilité, à savoir, celui fondé sur un contrat et celui qui résulte d’une confiance
spéciale née en dehors d’un contrat ».
Compte tenu de la stratégie procédurale des parties, l’arbitre unique décida que chacune
des parties devait supporter ses propres frais et honoraires d’avocats et que les demander¬
esses, d’un côté, et la défenderesse, de l’autre côté, devaient supporter la moitié des frais de
l’arbitrage tels que fixés par la Cour.
NOTE I. — La première exception soulevée par la défenderesse portait sur
l’identité et la nationalité de la demanderesse n° 1, ainsi que sur ses rapports avec l’entité
signataire du contrat et de la convention d’arbitrage y insérée.
Après avoir constaté que l’exception d’incompétence avait été soulevée de façon tard¬
ive, et avait ensuite été retirée par la défenderesse, l’arbitre unique examina la même
exception du point de vue de la recevabilité de la demande. La position de l ’arbitre unique
est claire. La nationalité différente des deux entités en question permettait de conclure
qu’elles étaient des personnes juridiques distinctes. Par conséquent, la demanderesse n° 1,
qui n’avait pas signé le contrat, n’était pas partie aux droits et aux obligations y afférents et
n’avait pas qualité pour agir dans cet arbitrage.
La motivation de l’arbitre unique sur ce point est convaincante et est corroborée par
l’argument des demanderesses, qui avaient « offert de produire les comptes annuels [ . . . ]
des deux entités démontrant que l’entité suisse n’a conduite aucune opération de négoce
portant sur l’achat et la vente de matières premières [...]. L’entité suisse n’est plus,
depuis de nombreuses années, qu’une société de services du groupe ». Indépendamment
des raisons pour lesquels le CMA avait été signé par la société suisse et non par la société de
Saint-Christophe-et-Nevis (sur lesquelles les demanderesses n’avaient semble-t-il pas

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fourni d’explications), cet argumentation ne fait que confirmer qu’il y avait bien deux
entités distinctes, et que l’adresse en Suisse de l’entité signataire du contrat coïncidait
avec son domicile social. La demanderesse n° 1 était donc un tiers par rapport au CMA
et n’avait aucun titre pour agir sur la base des obligations y afférentes.
À titre subsidiaire, les demanderesses avaient invoqué l’extension de la clause compro¬
missoire à la demanderesse n° 1 , qui ne l’avait pas signé. La motivation de l’arbitre unique
sur ce point est beaucoup moins persuasive. Il constata que les demanderesses n’avaient pas
indiqué à quel titre la convention d’arbitrage aurait pu être étendue à une partie non
signataire, et conclut succinctement qu’« à défaut d’avoir souscrit expressément une
telle clause ou d’avoir prouvé qu’elle y avait adhéré sur le fondement d’une théorie quelle
qu’elle soit », la demanderesse n° I ne pouvait pas s’en prévaloir.
En premier lieu, un argument relatif à la portée ratione personae de la convention
r d’arbitrage, et notamment à son extension à une partie non signataire, est une question
de compétence de l’arbitre, et non de recevabilité des demandes. Ayant constaté que la
défenderesse avait retiré son exception d’incompétence, l’arbitre aurait dû se borner à
constater que l’argument des demanderesses était désormais sans objet, et aurait donc
dû éviter de l’examiner. L’exposé des positions des parties contenu dans la sentence con¬
firme que les demanderesses avaient formulé cet argument subsidiaire dans le cadre de
l’exception d’incompétence soulevée par la défenderesse, et non dans le cadre de l’excep¬
tion de recevabilité de la demande.
En second lieu, et à titre subsidiaire, à supposer que l’argument des demanderesses ait dû
être examiné, on peut regretter le laconisme de la motivation de l’arbitre unique, qui s’est
borné à affirmer que les demanderesses « n’avancent aucune thèse permettant à l’Arbitre
Unique de déterminer si [la demanderesse n° 1] peut se prévaloir de la clause compromis¬
soire contenue dans le CMA ». Or, il ressort du résumé de la position des demanderesses
que celles-ci avaient articulé leur argument en invoquant « l’extension de la clause à une
société apparentée lorsqu’il est permis de déduire de l’intervention de cette société lors de
la négociation ou de l’ exécution du contrat qu’elle y a adhéré tacitement ou quand le groupe
de sociétés est conçu « comme constituant une véritable partie au contrat, notamment en
raison de la confusion opérée entre les personnes morales qui le composent » », et en
s’appuyant surplusieurs « précédents » CCI. C’est donc sur Iabase de l’intervention dans la
négociation et l’exécution du contrat et de la théorie du groupe de sociétés, qui sont
désormais des cas classiques d’extension de la convention d’arbitrage à des non signataires
(V. B. Hanotiau, Complex Arbitrations, Multiparty, Multicontract, Multi-issue and Class
Actions: The Hague, 2005, p. 32, 49), que les demanderesses avaient formulé leur argu¬
ment, que l’arbitre unique ne mentionne pas avoir examiné.
On peut supposer que les conditions auxquelles la jurisprudence (V., ex multis, CA
Paris, 21 oct. 1983, Isover-Saint-Gobain c/ Dow Chemical France: Rev. arb. 1984,
p. 98, note A. Chapelle. — CA Pau, 26 nov. 1986, Sponsor A.B. d Lestrade: Rev.
arb., 1988, p. 153, note A. Chapelle), la pratique arbitrale (V. Sentence rendue dans
l’affaire CCI n° 1434 de 1975: JDI 1976, p. 978; Sentence rendue dans l’affaire CCI
n° 2375 de 1975: JDI 1976, p. 973; Sentence rendue dans l'affaire CCI n° 4131 de
1982: Yearbook Commercial Arbitration, 1984, p. 131; Sentence rendue dans l'affaire
CCI n° 5103 de 1988: JDI 1988, p. 1206; Sentence rendue dans l’affaire CCI «° 5730 de
1988: JDI 1990, p. 1029) et la doctrine (P. Fouchard, E. Gaillard et B. Goldman, On
International Commercial Arbitration: The Hague, Boston, London, 1999, p. 284-289.
G. Born, International Commercial Arbitration: Alphen aan den Rijn, 2009, p. 1166: «
—
Under this principle, non-signatories of a contract may be deemed parties to the associated
arbitration clause based on factors which are often roughly comparable to those relevant
to alter ego analysis. In particidar, where a company is part of a corporate group, is subject
to the control of (or controls) a corporate affiliate that has executed a contract and is
involved in the negotiation or performance of that contract, then it may in some

circumstances invoke or be subjected to an arbitration clause contained in that contract,

notwithstanding the fact that it has not executed the contract ») ont assujetti l’extension de
la convention d’arbitrage à une partie non signataire n’étaient pas remplies en l’espèce, et
que la légèreté de la motivation sur ce point n’a donc pas influencé la décision de l’arbitre
unique. Il a d’ailleurs constaté non seulement que la demanderesse n° 1 n’avait pas souscrit
la clause compromissoire mais aussi qu’elle n’avait pas « prouvé qu’elle y avait adhéré ».
Cependant, on peut regretter le laconisme de la motivation sur ce point.
II. — La deuxième exception de la défenderesse visait spécifiquement la position de la
demanderesse n° 2, qui, aux dires de la défenderesse, n’avait subi aucun préjudice et n’avait
donc pas qualité pour agir sur la base du CMA.
Au vu de la structure de l’opération en question et des circonstances du cas d’espèce, la
décision de l’arbitre unique de déclarer la demande de la demanderesse n° 2 mal fondée
n’est guère surprenante. En premier lieu, la demanderesse n° 2 n’était pas concernée par le
crédit octroyé par la banque Y, qui avait été versé à l’intermédiaire X et non à la deman¬
deresse n° 2. En deuxième lieu, l’entité qui avait payé la marchandise, y compris celle dont
les demanderesses alléguaient l’inexistence, était la société Z, une entité du groupe de la
demanderesse n° 2, et non la demanderesse n° 2 elle-même. En outre, même à supposer que
la marchandise ait été payée directement par la demanderesse n" 1, et que la demanderesse
n° 2 était donc débitrice de la demanderesse n° 1 pour la valeur d’une livraison qu’elle
n’avait pas pu effectuer, il faudrait en conclure que la demanderesse n° 2 n’avait pas été
lésée directement.
III.— Afin de suppléer la faiblesse intrinsèque de leurs demandes, les demanderesses
avaient invoqué, à titre alternatif, la « responsabilité fondée sur la confiance ». Elles
soutenaient que les conditions de mise enjeu de ce type de responsabilité, telles qu’établies
par la jurisprudence du Tribunal fédéral suisse, étaient remplies en l’espèce, du fait du
rapport de confiance qui les liait à la défenderesse. Cette confiance était à l’origine de la
mission de contrôle et d’audit, des marchandises confiée à la défenderesse et justifiait les
attentes des demanderesses que les contrôles seraient effectués de façon diligente. Les
demanderesses soutenaient que la défenderesse avait déçu ces attentes en agissant de
façon légère et négligente dans la vérification de l’existence et de la quantité des march¬
andises entreposées.
La défenderesse réfutait cette argumentation sur la base de la nature non contractuelle du
rapport de confiance invoqué par les demanderesses. Elle relevait que la relation entre les
parties faisait l’objet d’un contrat. Les demanderesses ne pouvaient pas se prévaloir d’une
forme de responsabilité qui existerait seulement en dehors de tout contrat.
L’arbitre unique trancha la question sur la base de l’interdiction de cumuler les différents
régimes de responsabilité, notamment celui de la responsabilité fondée sur la confiance et
celui de la responsabilité contractuelle. Il observa que « [l]a mise enjeu de la responsabilité
fondée sur la confiance implique que la responsabilité contractuelle ne puisse pas jouer,
autrement elle viendrait se cumuler avec cette dernière ».
La demande n’étant pas fondée sur le contrat, on pourrait au préalable s’interroger (ce
que l’arbitre unique ne semble pas avoir fait) sur la compétence de l’arbitre, qui dépend de
l’étendue de la convention d’arbitrage. La clause compromissoire insérée dans le CMA
était rédigée de façon suffisamment large (« Ail disputes arising in connection with this
Agreement shall be finally settled under the Rules of conciliation and arbitration of the
International Chamber of Commerce ») pour couvrir une demande qui n’était pas fondée
sur le contrat mais avait son origine dans le rapport contractuel (V. F. Gonzalez, La
responsabilité délictuelle dans les sentences arbitrales de la Chambre de commerce inter¬
nationale, Bulletin de la Cour d'arbitrage de la CCI: 2002, n° 2,p. 4L — A. Carlevaris,
Ambito oggettivo dell’accordo compromissorio e arbitrabilità dette controversie non con-
trattuali: Rivista dell'arbitrato, 2010, p. 611, spéc. 622).

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=-
La question de savoir si la responsabilité contractuelle, invoquée par les demanderesses

à titre principal, pouvait se cumuler à la responsabilité fondée sur la confiance, invoquée à
titre alternatif, se posait dans des termes différents à l’égard des deux demanderesses. La
demanderesse n° 2 était partie au CMA et avait initié cet arbitrage sur le fondement de
la violation de ce contrat par la défenderesse. Le rejet de la demande subsidiaire fut donc la
conséquence prévisible du principe de l’interdiction de cumuler les deux types de respons¬
abilité. En revanche, la question était beaucoup moins claire en ce qui concerne la deman¬
deresse n° 1, qui n’était pas partie au contrat. C’est justement en vertu de l’absence de lien
contractuel entre la demanderesse n° 1 et la défenderesse qu’on pouvait envisager la
responsabilité de cette dernière pour la rupture du « rapport spécial de confiance » qui
la liait à la demanderesse n° 1, c’est-à-dire pour lui avoir laissé croire qu’elle pouvait faire
confiance dans un certain contexte juridique.
%- L’arbitre unique estima cependant que le comportement fautif invoqué par les deman¬
deresses faisait l’objet d’obligations contractuelles de la défenderesse, et que ce comporte¬
ment ne saurait constituer à la fois la violation d’une obligation contractuelle et la violation
d’une obligation de confiance, « car ceci impliquerait qu’il pourrait y avoir un cumul entre
les deux régimes de responsabilité ». Or, dans le cas d’espèce, la demanderesse n° l n’était
pas partie au CMA et ne pouvait pas se prévaloir de la responsabilité contractuelle. On
aurait donc pu distinguer la position d’une partie au contrat, oui pas se pi
qui ne pourrait pas prévaloir
cumulativement des deux régimes de responsabilité, et celle d’une entité qui n’est pas
partie au contrat, à l’égard de laquelle seule la responsabilité fondée sur la confiance
pourrait être invoquée. Force est de constater, à cet égard, que l’arbitre unique adopte
une interprétation extensive du principe d’autonomie de la responsabilité fondée sur la
confiance,
IV. - La dernière décision de la sentence qui mérite attention est la répartition des frais
de l’arbitrage.
D’après le Règlement CCI, les frais de l’arbitrage « comprennent les honoraires et frais
des arbitres et les frais administratifs de la CCI fixés par la Cour [ ... ] ainsi que les frais
raisonnables exposés par les parties pour leur défense à l’occasion de l'arbitrage ».
L’arbitre unique décida que chacune des parties supporte ses propres frais d’avocats et
que les parties supportent les frais de l’arbitrage stricto sensu à parts égales.
Compte tenu de la teneur tranchante des autres décisions de la sentence, cette solution
« de Salomon » est surprenante. Après avoir rappelé la « règle généralement admise en
matière d’arbitrage international » suivant laquelle l’allocation de la charge des frais de
l’arbitrage « s’inspire de la mesure dans laquelle chaque Parie a été ou non reçue en ses
demandes », l’arbitre unique s’en écarta nettement. Il trouva « équitable » que, dans le cas
d'espèce, les parties supportent leurs propres frais légaux et qu’elles partagent les autres
frais à parts égales, alors que les demanderesses avaient totalement perdu l’affaire.
Le pouvoir discrétionnaire des arbitres dans la répartition des frais de l’arbitrage est
incontestable et a toujours été soutenu par la jurisprudence CCI (V. Sentence rendue dans
l’affaire CCI n° 12827: JDI 2009, p. 1376; Sentence rendue dans l’affaire CCI n° 11426:
JDI2006,p. 1443; Sentence rendue dans l'affaire CCI n° 12456: JDI 2010, p. 1386. —
Jolivet et L. Marquis, Les frais de l’arbitrage, Chronique de jurisprudence arbitrale de la
E.
Chambre de commerce internationale: Cahiers de l’arbitrage «° 2009/4; Gaz. Pal. 13-15
déc. 2009, n°347 à 349, p.15 et s.). Contrairement à d’autres règlements d’arbitrage
(V. Régi, de la CNUDCI, art. 42, al. 1: « Les frais d’arbitrage sont en principe à la charge
de la partie ou des parties qui succombent »), le Règlement CCI ne prévoit pas de critères
de répartition des frais. Cependant, la règle « costs follow the event » est généralement
admise. Elle s’inspire du principe qu’une partie subit un préjudice du fait de devoir engager
des frais pour participer à l’arbitrage et que ce préjudice mérite d’être réparé intégralement
lorsque cette partie obtient gain de cause. Cette conclusion devrait s’appliquer a fortiori

:
lorsque la partie qui perd est le demandeur. On a du mal à comprendre pourquoi « il serait
équitable » de laisser un défendeur qui obtient gain de cause supporter des frais importants
du fait d’avoir dû assurer sa défense.
Les arbitres CCI procèdent parfois à l’allocation de la charge des frais de l’arbitrage sur
la base de critères autres que la mesure dans laquelle les demandes des parties sont admises,
par exemple lorsqu’il apparaît que les autres parties ont contribué à la naissance du litige,
ou que la décision sur le fond requiert la solution de questions juridiques ou contractuelles
objectivement complexes et controversées, ou bien que la partie gagnante n’a pas respecté
des décisions procédurales (F. Derains et E. A. Schwartz, A Guide to the ICC Rules of
Arbitration: The Hague, 2005, p. 372-373: « In some cases, where the claim failed entirely,
the arbitrators nevertheless decided that the arbitration costs should be shared rather than
borne entirely by the Claimant (in one case because the Respondent had « not been
sufficiently forthcoming with the information necessary to find the truth » and had failed
to comply with two of the Tribunal's orders regarding the production of evidence, and in
another because the « dispute stemmed from a difficult problem of interprÉtation of the
agreement and no party can be blamed for having decided to submit it to the decision of the
Arbitral Tribunal »).
Dans le cas présent, la décision de l’arbitre unique est motivée par l’attitude procédurale
hésitante de toutes les parties qui avaient souvent changé de stratégie et par les nombreux
incidents de procédure qu’elles avaient soulevés qui avaient rendu l’arbitrage long et
complexe:
« Cependant, en l'espèce, considérant, d’une part, que l'argumentation des Parties a
évolué de manière significative, tout au long de l'arbitrage et d'autre part, que des deux
côtés, les Parties ont soulevé plusieurs exceptions et incidents de procédure rendant cet
arbitrage très long et complexe, il serait équitable que les Parties supportent leurs propres
frais et honoraires qu 'elles on générés en raison de leur stratégie procédurale ».
Il y a un second élément qui semble avoir influencé la décision de l’arbitre sur la
répartition des frais de l’arbitrage, mais que l’arbitre évita d’examiner. Les frais d’avocats
de la défenderesse avaient été presque quatre fois plus élevés que les frais des demander¬
esses, qui avaient contesté les honoraires d’avocats de la défenderesse, définis « hors de
toute proportion ». Cet argument aurait mérité une analyse spécifique dans la motivation à
la lumière du critère de la nature « raisonnable » des fiais encourus par les parties (Régi.
CCI, art. 31, al. 1: V. Y. Derains et E. A. Schwartz, op. cit. p. 366: « This wording is
intended to permit the arbitrators the greatest possible discretion in fixing the costs of the
arbitration [ ... ] Whatever the ultimate decision, however, the arbitrators have normally
been expected by the Court to provide reasons for their decisions, in accordance with
Article 25(2) »). L’arbitre unique aurait pu distinguer la décision sur l’allocation des frais
d’avocats de la décision sur la répartition des honoraires et frais de l’arbitre et sur les frais
administratifs de la CCI, et aurait pu allouer à la défenderesse un montant inférieur à la
somme réclamée et « raisonnable ».
A. C.

sí
Sentence arbitrale intérimaire rendue dans l’affaire CCI n° 13763 en 2006

L Droit applicable. — Choix implicite. Interprétation.

Convention de Rome du 19 juin 1980.
H. — Acte de mission.
Portée.
— Énoncé de la position respective des parties.
—
T,
ni. — Demandes nouvelles. — Article 19 du Règlement CCI 1998.
Distinction entre prétention et argumentation.
—
%,
IV. — Estoppel.
L 'arbitre unique, siégeant à Paris était appelé à se prononcer sur un différend opposant
une société yéménite, demanderesse, à une société française, défenderesse, concernant
l’exécution d’un contrat de vente et d’installation au Yémen d'une machine pour le con¬
ditionnement de produits alimentaires.
L'avant-dernière clause du contrat conclu en langue anglaise était rédigée comme suit:
«ARBITRATION
Applicable Law and Court of Jurisdiction
Al /sic/ disputes arising from the contract shall be finally settled in accordance with the
Rules and Conciliation and [sic] Arbitration of the International Chamber of Commerce in
Paris. Such arbitration shall be effected by 3 arbitrators appointed in accordance with the
above rules.
English law shall apply to the arbitration process ».
Par dérogation à la clause compromissoire, les Parties sont convenues au début de la
procédure que le litige serait tranché par un arbitre unique désigné par la Cour internatio¬
nale d’arbitrage de la CCI et que cet arbitre unique maîtriserait à la fois la langue anglaise et
française ainsi que les droits anglais et fiançais.
L’acte de mission établi en application de l’article 18 du Règlement CCI de 1998 et signé
par les Parties mentionnait que, « concernant la loi applicable au fond, la demanderesse n’a
traité ce point ni dans sa Demande d’arbitrage ni dans sa Note en réponse [à la demande
reconventionnelle]. Par contre, dans sa Réponse à la demande d’arbitrage, la défenderesse
argumente que ce soit la loi française qui s’applique au fond. Cette question reste donc
ouverte et à déterminer par le Tribunal arbitral ».
Dans le cadre des échanges de mémoires ultérieurs, alors que la demanderesse a indiqué
ne pas contester l’application du droit français, la défenderesse a par contre modifié sa
position initiale concernant le droit applicable et soutenu que l’ interprétation de la con¬
vention d’arbitrage conduit à la désignation par les Parties de la loi anglaise.
La nouvelle argumentation développée par la défenderesse a conduit la demanderesse à
soulever des objections relatives à la portée de l’acte de mission et à opposer le principe de
l’estoppel « by representation ». C’est sur ces questions que l’arbitre unique, à la demande
conjointe des parties, se prononce dans une sentence intérimaire.
« 1. La clause contractuelle
89. Il convient tout d'abord d’identifier la loi au regard de laquelle la clause contrac¬
tuelle litigieuse doit être interprétée, c 'est-à-dire la clause compromissoire qui, selon l’une
des Parties, contient la désignation des lois applicables au Contrat.

90. Aucune des Parlies n 'a avancé d’opinion précise sur ce point, à l’exception de leur
acceptation commune de l 'application à l 'espèce de la Convention de Rome du 19 juin
1980 sur la loi applicable aux obligations contractuelles, la France étant signataire de la
Convention, conformément à l'article 1 de ladite Convention.
91. En application de l'article 3 al. 1 de la Convention de Rome, il est prévu que « le
contrat est régi par la loi choisie par les parties. Ce choix doit être exprès ou résulter de
façon certaine des dispositions du contrat ou des circonstances de la cause ». L 'article 3 al.
4 dispose que, lorsqu 'il y a un doute sur le consentement de l’une des parties relatif à ce
choix, ce problème doit, par le biais d'un renvoi à l’article 8 de la Convention, être résolu
—
par application de la loi qui régit le fond du contrat - c 'esl-à-dire, selon la loi même dont
la désignation est contestée, sauf s’il résulte des circonstances qu’il ne serait pas
raisonnable de déterminer /’effet du comportement (y compris le prétendu consentement)
d’une partie d’après la loi dont la désignation est contestée. Dans un tel cas, la partie
concernée peut se référer à la loi du pays dans lequel elle a sa résidence habituelle pour
établir qu’elle a consenti ou non (art. 8 al. 2 de la Convention de Rome).
92. La disposition du Contrat dont la signification est contestée par les Parties prévoit
que : « English law shall apply to the arbitration process ». Cette disposition apparaît dans
l'avant-dernière clause du Contrat intitulée «Arbitration ».
93. La question que les parties se posent est donc de savoir si cette disposition constitue
un choix exprès ou implicite (résultant des circonstances de la cause) et certain de la loi
anglaise en tant que loi applicable au Contrat.
94. Le débat entre les Parties démontre lui-même, de par sa nature tout à fait sérieuse,
qu 'à l 'évidence, la clause ne constitue pas un choix exprès de la loi applicable. En effet, le
Tribunal accepte, ainsi que le prétend la Demanderesse, que la référence à /’« arbitration
process » ne constitue pas per se une référence au Contrat.
95. Il convient donc de rechercher les circonstances de la cause afin de déterminer, en se
fondant sur la loi anglaise, s'il en résulte un choix certain de la loi anglaise comme loi
applicable au Contrat. Le cas échéant, il convient ensuite de s 'assurer qu’il est raisonnable
de déterminer l 'effet du comportement de la Demanderesse au regard de la loi anglaise
une vérification qui devrait prendre en compte le résultat d’une même analyse au regard de
—
la loi du pays de la résidence habituelle de la Demanderesse, à savoir le Yémen.
96. Il convient au préalable de replacer la disposition litigieuse dans son contexte
contractuel.
97. La clause en question porte un titre
Contrat. Ce titre est « Arbitration ».
— de même que toutes les autres clauses du
98. Selon la Demanderesse, ce titre est déterminant pour le débat : l'article ne traite que
de l 'attribution de compétence pour des différends liés au Contrat (à savoir les arbitrages)
et des questions connexes de procédure (à savoir, l’application du Règlement d’arbitrage
de la CCI et la composition du tribunal arbitral). En conséquence, la Demanderesse
considère que la phrase litigieuse est de la même nature que le reste de la clause
savoir procédurale - et désigne la loi de procédure anglaise comme applicable à tout
— à
arbitrage commencé en application de la clause.
99. La Défenderesse insiste moins que la Demanderesse sur la signification du titre de la
clause lui-même. Elle n 'en fait, en effet, aucune mention dans sa Réponse à la Requête.
Dans son Mémoire en Réponse et dans son Mémoire sur la loi applicable, elle regroupe le
titre avec la première phrase de la clause, à savoir « Applicable Law and Court of
Jurisdiction », en donnant à l’ensemble la même valeur contractuelle. Selon la
Défenderesse, la phrase litigieuse ne peut donc être lue sans que soit prise en compte
la référence à l ’« Applicable Law » dans le corps de l'article. Il s’ensuit de ce raisonne¬
ment que l'intention des Parties était de choisir la loi anglaise comme loi applicable au

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Contrat, et non uniquement comme loi de procédure applicable à tout arbitrage commencé
en application de la clause.
100. Le Tribunal considère que ce titre ne constitue pas un élément concluant-même si,
contrairement à la position initialement invoquée par la Défenderesse, on ne peut pas
l'écarter. En effet, les autres titres des clauses du Contrat ne désignent pas de manière
fidèle le contenu des clauses. A titre d’exemple, la clause intitulée « Erection » traite à la
fois de l'installation de la machine et de l’exécution des « test runs » une fois la machine
installée ; encore une fois, la clause intitulée « Price » couvre à la fois le prix et les
obligations des Parties concernant l'envoi et l'hébergement des techniciens de la
Défenderesse pour les besoins de l'installation, du démarrage et de la mise en service
de la machine.
101. Il convient donc de chercher plus loin que le simple titre de la clause afin de
TT
comprendre la signification de ces dispositions.
S-.
102. La première phrase de la clause « Applicable Law and Court of Jurisdiction », doit
être prise en compte dans l'interprétation de la clause. L’inclusion de cette phrase suggère
que les parties souhaitaient régler deux questions dans cette clause : celle de l'attribution de
juridiction — « Court of Jurisdiction » ; et celle de la loi applicable - « Applicable Law ».
103. Si l'on accepte que la première partie de la clause répond à la question de la
« Court of Jurisdiction », à savoir, l’arbitrage sous l’égide de la CCI, il n’est pas dérai¬
sonnable de déduire que la deuxième partie de la clause, c’est-à-dire la phrase litigieuse,
répond à celle de I’« Applicable Law », à savoir la loi anglaise.
104. La Demanderesse argumente qu'une telle conclusion viderait de sa substance la
référence à 1’ « arbitration process » dans la phrase considérée- le terme anglais «
process » étant assurément différent du terme « contrat ».
105. Cet argument est séduisant, mais, dans les circonstances de la cause, il ne résiste
pas à un examen approfondi pour les raisons suivantes.
106. Tout d’abord, la Demanderesse reconnaît elle-même que le terme anglais comporte
plusieurs significations différentes, dont notamment la même signification que le terme
« procès » en français, ainsi qu 'une signification plus large que le terme plus spécifique
« procedure ».
107. Deuxièmement, l’argumentation de la Demanderesse ignore la référence expresse
à la notion d' « Applicable Law » faite par les Parties au début de la clause. Cette notion
est traitée d 'une manière distincte de la question de la compétence : en effet, l 'utilisation du
mot « process » et non du terme plus spécifique « procedure » en conjonction avec cette
référence à la notion d’v. Applicable Law » en début de clause constitue un indice de ce que
les parties n'avaient pas l'intention de se limiter exclusivement à des questions de
procédure.
108. Troisièmement, cette argumentation ne répond pas à l’observation faite par la
Défenderesse selon laquelle « il est. . . surprenant que des parties non juristes s’attachent
parfaitement pertinente en l’espèce. —

à prévoir avec un tel souci de détail les règles applicables à la procédure, sans désigner
toutefois de la loi applicable au fond » observation que le Tribunal arbitral considère
109. Quatrièmement, il est à noter que les Parties ont choisi un mode neutre pour le
règlement de leurs différends potentiels, à savoir l'arbitrage sous l'égide de la CCI. On
peut déduire de ce qui précède qu 'aucune des parties ne souhaitait se trouver devant les
tribunaux étatiques de l'autre. En effet, les Parties n‘ont pas même pris le soin de désigner
le siège d’un tribunal arbitral éventuel — décidant ainsi que le siège de ce tribunal serait
déterminé en application des dispositions du Règlement de la CCI (en l’occurrence, les
Parties sont convenues de désigner Paris en tant que siège de l 'arbitrage une fois le litige
survenu).
i
110. Ce choix d'une juridiction neutre constitue l'indice d’un choix d’une loi applicable
au fond neutre - telle que la loi anglaise, plutôt que la loi nationale de l’une ou l ’autre des
Parties (loi française ou loi yémènite).
111. Cinquièmement, le Tribunal considère que les agissements des Parties lors de cette
procédure n’ont qu’une valeur mineure pour les besoins de l’interprétation de la
clause litigieuse. Premièrement, ces agissements ont eu lieu, par hypothèse, après la
survenance des circonstances de la cause et après que le litige soit né. Deuxièmement,
les arguments des deux parties n’ont pas toujours été cohérents. La Défenderesse a changé
de position sur la loi applicable. Quant à la Demanderesse, en dépit de sa position selon
laquelle la loi visée par la clause litigieuse s’applique aux seules questions de procédure,
elle n'a insisté sur ce point ni lors des discussions portant sur le titre IX del’Acte de mission
ni lors des discussions portant sur la formulation des règles particulières de procédure
applicables à l’arbitrage.
112. Finalement, les parties n’ont fait état d’aucune raison, au regard des dispositions
de la loiyéménite, à l’appui d’une thèse selon laquelle il serait déraisonnable de placer le
comportement de la Demanderesse dans un contexte de droit anglais.
113. En conclusion, il résulte de façon certaine des dispositions du Contrat et des
circonstances de la cause que la phrase litigieuse du Contrat constitue un choix de la
loi anglaise comme loi applicable au Contrat.
114. Cette conclusion ôte toute pertinence à l’argumentation de la Demanderesse selon
laquelle il serait illogique de déduire que les parties ont choisi une loi applicable au
Contrat pour les besoins de tout arbitrage commencé en application de la clause compro¬
missoire, et une autre loi applicable au Contrat en toute autre circonstance. Une fois
encore, le Tribunal considère que le titre de la clause n’est pas concluant en lui-même
et que, dans les circonstances de la cause, le Tribunal détermine que les parties ont
l’intention de traiter dans la clause litigieuse à la fois la question de la compétence et
la question de la loi applicable en général.
115. À la suite à cette conclusion, il n’y a lieu d’appliquer ni les dispositions de l’article [4]
de la Convention de Rome qui ne s’appliquent qu’en cas d’absence de choix de loi applicable
au sens de l’article 3 de ladite Convention, ni celles de l'article 17 du Règlement d’arbitrage
de la CCI, qui ne s 'appliquent également qu’en l’absence de choix de loi applicable par les
parties.
116. En outre, l 'argument de la Défenderesse en réponse vise à démontrer que les Parties
n’ont pas fait le choix du terme « procedure » en lieu et place du terme « process » dans la
phrase litigieuse puisque les questions de procédure ont déjà été traitées par référence au
Règlement de la CCI ; le terme « process » devrait en conséquence avoir une autre signi¬
fication, à savoir que le Contrat est superflu - même si, de l’avis du Tribunal, un tel argument
n 'emporte pas la conviction, pour la simple raison que l’article 15 du Règlement de la CCI
laisse ouverte la possibilité pour un tribunal arbitral d’appliquer une loi nationale de
procédure en conjonction avec le Règlement lui-même.
2. Les Parties ont-elles modifié leur choix initial de la loi anglaise en tant que loi
applicable lors de la signature de l’Acte de mission ?
117. Selon l’article 3 al.2 de la Convention de Rome, il est admis que « les parties
peuvent convenir, à tout moment, de faire régir le contrat par une loi autre que celle qui le
régissait auparavant soit en vertu d’un choix antérieur selon le présent article, soit en vertu
d’autres dispositions de la présente convention ».
118. La Demanderesse prétend que l 'argumentation delà Défenderesse figurant dans sa
Réponse à la Requête a été retranscrite dans l’Acte de mission et qu 'elle avait accepté cette
offre en indiquant dans son Mémoire en demande que l’application de la loi française
n 'avait pas été contestée avant le revirement de la Défenderesse dans son Mémoire en

.i 1'. i-
•-I
■: :
9:
Réponse. La Demanderesse a précisé qu 'elle considérait qu 'un acte de mission tel que
prévu par le Règlement d’arbitrage de la CCI constituait un accord liant les parties.
¡19. La Défenderesse conteste l'argumentation de la Demanderesse. Pour la
Défenderesse, on ne peut pas qualifier d’offre contractuelle son affirmation initiale
selon laquelle la loi française s'applique au Contrat - en effet, elle n'avait pas l‘intention
de contracter. En outre, un acte de mission n‘est qu 'un acte de procédure et donc n 'a pas de
force contractuelle.
120. Le Tribunal considère qu’un acte de mission peut formaliser un ou plusieurs
accords entre les parties pourvu que cel ou ces accord(s) existent) au préalable. En
d’autres termes, l'intention de contracter doit exister avant la signature de l’acte.
L’acte de mission n’est qu’un élément de preuve de cette intention.
121. En l’espèce, la non-existence d’une intention de contracter de la part de la
Défenderesse, qui prétendait initialement que la loi applicable au Contrat était la loi
s française, ressort de plusieurs éléments : (i) le contexte de cette affirmation, à savoir
un acte de procédure (sa Réponse à la Requête et éventuellement l’acte de mission lui-
même) alors que la Défenderesse savait pertinemment que son argumentation était sus¬
ceptible d’être attaquée par son adversaire ; (ii) son consentement, exprimé dans sa
Réponse à la Requête, aux critères auxquels l’arbitre unique devait répondre, à savoir
la maîtrise du droit français et du droit anglais ; et (iii) son acceptation, par la signature de
l’acte de mission, du fait que la question de la loi applicable restait ouverte et à déterminer
par le Tribunal (et à cet égard, le Tribunal n’accepte pas l’affirmation de la Demanderesse
selon laquelle cette question restait ouverte à son seul profit).
122. Le Tribunal rejette donc l’affirmation de la Demanderesse selon laquelle la
Réponse à la Requête et l’Acte de mission contenaient une offre de la Défenderesse revêtue
d’une intention de celle-ci de contracter, offre qui a été acceptée par la Demanderesse, qui
indique elle-même dans son Mémoire ne pas contester le fait que la loi française est
applicable au Contrat.
123. Le Tribunal considère donc que les parties n‘ont pas modifié leur choix initial de la
loi anglaise en tant que loi applicable au Contrat.
3. L’argumentation nouvelle de la Défenderesse concernant la loi applicable au Contrat
constitue-t-elle une nouvelle demande au sens de l’article 19 du Règlement de la CCI ?
124. La Demanderesse prétend que la nouvelle argumentation de la Défenderesse par
laquelle elle a modifié sa position initiale selon laquelle la loi applicable au Contrat est la
loi française, et adopté une position nouvelle selon laquelle la loi applicable est la loi
anglaise, constitue une demande nouvelle au sens de l’article 19 du Règlement d’arbitrage
de la CCI.
125. La Demanderesse argumente que, en application de l’article 19 du Règlement
d’arbitrage de la CCI, ce sont les Requête d’arbitrage et Réponse à la Requête d’arbitrage
qui fixent les termes du litige.
126. Selon la Demanderesse, en changeant sa position sur la loi applicable par rapport
aux termes de sa Réponse à la Requête d’arbitrage, la Défenderesse tente de modifier les
termes du litige, violant ainsi l’article 19 du Règlement.
127. La Demanderesse ajoute que, en dépit du fait que l’acte de mission ait laissé
ouverte la question de la loi applicable, la Défenderesse demeure la seule bénéficiaire
de cet état de fait, étant donné que la Défenderesse avait déjà défini sa position sur la
question (dans sa Réponse à la Requête).
128. La Défenderesse répond aux arguments de la Demanderesse en arguant tout
d’abord qu’un changement d’analyse sur la loi applicable à un contrat litigieux ne con¬
stitue pas une nouvelle demande au sens de l’article 19 du Règlement d’arbitrage de la
CCT. Cette nouvelle prise de position constitue un simple changement d’argumentation ou
i.
f:
de moyens, et non pas une nouvelle demande au fond. En effet, la demande reconvention¬
nelle que la Défenderesse a formulée dans sa Réponse à la Requête demeure inchangée,
puisque cette demande ne porte pas sur la loi applicable au Contrat (et ne comporte qu 'une
demande du paiement du solde du prix de la machine).
129. En deuxième lieu, la Défenderesse s'appuie sur les termes de l'article 19 du
Règlement d'arbitrage de la CCI et plus particulièrement sur l'interdiction de formuler
toute nouvelle demande « hors des limites de l’acte de mission ». La Défenderesse
rappelle que l’Acte de mission du 29 septembre 2005 prévoyait expressément que la
question de la loi applicable restait ouverte et à déterminer par le Tribunal arbitral.
L 'Acte de mission ne permet pas de considérer que cette ouverture bénéficiait à la seule
Demanderesse.
130. Enfin, dans l’hypothèse où il serait déterminé que la Défenderesse est liée par son
analyse initiale, de telle sorte qu 'il n 'y ait pas lieu de statuer sur le fait que les Parties aient
fait le choix d'une loi applicable au Contrat, la Défenderesse invite le Tribunal à appliquer
les règles de droit qu’il juge appropriées en application de l'article 17(1) du Règlement
d'arbitrage de la CCI.
131. Le Tribunal considère que, abstraction faite de la question de la nature de la
nouvelle argumentation de la Défenderesse (demande ou moyen), les termes de l’Acte
de mission du 29 septembre 2005 sont clairs et laissent ouverte, de manière générale,
la question de la loi applicable au Contrat. Les parties ont constaté dans l‘Acte de mission
que la question reste à déterminer par le Tribunal - une constatation qui n 'aurait pas eu
lieu si, selon la thèse avancée par la Demanderesse, celle-ci conservait la possibilité
d'approuver la désignation effectuée par la Défenderesse. Le changement d’argumenta¬
tion par la Défenderesse concernant la loi applicable n 'était donc pas hors des limites de
l’Acte de mission au sens de l’article 19 du Règlement d’arbitrage de la CCI. Le change¬
ment d’argumentation est donc permis.
132. Au vu de ce qui précède, il n’y a ni lieu ni besoin de considérer les autres moyens
soutenus par les Parties concernant cette question.
4. Est-il interdit à la Défenderesse de soutenir son argumentation nouvelle en ce qui
concerne la loi applicable par l 'application du principe de l 'estoppel « by representation » ?
133. La Demanderesse allègue que l'argumentation, développée par la Défenderesse
dans sa Requête d'arbitrage et répétée dans l’Acte de mission, selon laquelle la loi
applicable au Contrat était la loi française, constitue une « representation » au sens du
principe de l’estoppel « by representation » reconnu par le droit anglais comme par le droit
français ; que cette « representation » était la suivante : la Défenderesse « pensait » que la
loi applicable au Contrat était la loi française ; que cette « representation » a conduit la
Demanderesse à procéder à des recherches sur les règles de droit français et à les dével¬
opper à l'appui de son argumentation dans son Mémoire en demande du 14 novembre
2005 ; qu'autoriser la Défenderesse à changer sa position sur la loi applicable dans ces
circonstances exposerait la Demanderesse à un préjudice, à ravoir des frais et délais
supplémentaires nécessaires à la recherche des règles de droit anglais et à leur dével¬
oppement à l’appui de son argumentation, qui ne sont pas inhérents au litige ; que le
comportement de la Défenderesse viole le devoir de cohérence des parties à l’arbitrage. La
Demanderesse conclut que les exigences du principe de l’estoppel « by representation »
sont remplies en l’espèce et qu’il est interdit à la Défenderesse de changer sa position
initiale sur la loi applicable.
134. La Défenderesse répond en arguant tout d’abord que son comportement initial
concernant la loi applicable n’était ni clair ni sans équivoque : au contraire, une fois que la
question de la loi applicable a été soulevée lors de la rédaction de l’Acte de mission et
avant que la Demanderesse ne prenne position sur le point, la Défenderesse a admis qu’il
s’agissait là d’une question ouverte, qui devait être déterminée par le Tribunal arbitral.

.y.-y.r v

En substance, donc, pour la Défenderesse il n'y avait pas de « representation » au sens du
principe de l'estoppel « by representation ».
135. En deuxième lieu, la Défenderesse prétend que le principe de l'estoppel « by
representation » repose sur la mauvaise foi de la partie à l’encontre de laquelle l'estoppel
est invoqué et qu'en l’espèce, le fait que la Défenderesse ait initialement considéré que la
loi française s’appliquait au Contrat n'est pas le produit de sa mauvaise foi, mais le
résultat d’une analyse erronée de la clause compromissoire.
136. En troisième lieu, la Défenderesse argumente que le préjudice subi par la partie
qui invoque le principe de l’estoppel « by representation » doit avoir un caractère
Aï
exceptionnel — or tel n 'est pas le cas en l'espèce, les frais et délais mentionnés par la
Demanderesse étant inhérents à tout litige entre deux parties ayant des positions opposées.
s 137. Enfin, la Défenderesse allègue qu 'en matière d'arbitrage, et en particulier dans le
cas d 'un arbitrage sous l'égide de la CCI, puisqu 'il est admis qu'une partie est susceptible
de modifier son argumentation, il n'y a pas lieu d’interdire une telle modification sur
le fondement du principe de l’estoppel « by representation ».
138. Le Tribunal considère que le principe de l'estoppel « by representation » ne
s'applique pas à l’espèce pour les raisons suivantes.
139. Primo, le comportement de la Défenderesse, qui soutenait qu "en application de la
clause compromissoire et la Convention de Rome, la loi française s'appliquait au Contrat,
ne constitue pas une « representation » au sens du principe évoqué.
— En premier lieu, il n 'est pas certain qu'une déclaration concernant un état de droit
soit équivalente à une représentation de fait telle qu ‘exigée par le principe.
— En deuxième lieu, une déclaration d’opinion telle qu 'exprimée par la Défenderesse
(«je pense que. . . » —
voir le dossier de plaidoirie de la Demanderesse elle-même) n’est
pas une condition suffisante à l’application du principe.
— En troisième lieu, la déclaration considérée a été formulée dans un acte dè procé¬
dure. Il semble au Tribunal qu 'un tel contexte procédural démontre en lui-même que la
déclaration n 'est pas suffisamment claire et sans équivoque pour les besoins du principe de
l’estoppel « by representation ».
— En quatrième lieu, même à supposer que la déclaration initiale ait été suffisamment
claire et sans équivoque, elle s’est trouvée modifiée lors de la rédaction de l'Acte de
mission puisque la Défenderesse a alors accepté le fait que la question de la loi applicable
demeurait ouverte de manière générale (et sur ce point, pour les raisons évoquées ci-
dessus, le Tribunal n'accepte pas l'interprétation de l’Acte de mission donnée par la
Demanderesse) et surtout que cette question devait être résolue par le Tribunal. Ce chan¬
gement est intervenu avant que la Demanderesse n'ait pris position sur la question;
— En cinquième lieu, l'existence d'une différence d'opinion potentielle entre les
Parties sur la question de la loi applicable et donc de la possibilité d'un débat contra¬
dictoire sur ce point devant le Tribunal arbitral était présente dès le début de la procédure
arbitrale aux termes de la Requête de la Demanderesse, dans laquelle la Demanderesse a
expressément demandé que l’arbitre unique maîtrise les droits anglais et français - une
demande à laquelle la Défenderesse a consenti dans sa Réponse à la Requête. Cette
connaissance d’un différend potentiel sur la loi applicable dès le début de la procédure
indique que la « representation » de la Défenderesse n 'était pas suffisamment claire et non
équivoque pour les besoins du principe de l'estoppel « by representation ».
140. Secundo, la Demanderesse n 'a pas démontré que la Défenderesse a fait sa « rep¬
resentation » (à savoir que la loi française était applicable au Contrat) en sachant qu 'elle
était fausse oit avec l'intention que la Demanderesse s'y fie et qu’elle agisse selon cette
représentation et ainsi modifie sa position.
I
141. Quant à la fausse nature de la soi-disant « representation », la Défenderesse a

indiqué que son origine n 'était pas la mauvaise foi mais une erreur d’analyse de la clause
compromissoire. Dans ces circonstances, il n y a pas lieu de déterminer que la
Défenderesse savait que sa « representation » était fausse (c'est-à-dire contraire à ce
qu’elle croyait véritablement).
142. En ce qui concerne ¡’alternative, à savoir que la Défenderesse a fait sa soi-disant
« representation » avec l’intention que la Demanderesse s’y fie et qu’elle agisse en con¬
séquence, il convient de rappeler que la « representation » a été faite dans le cadre d’une
procédure d’arbitrage international où les deux parties sont représentées par des conseils
juridiques. Même si l’on peut imaginer que la Défenderesse avait l’espoir que la
Demanderesse se rallie à sa thèse, il n’est pas démontré qu’elle avait l’intention prévue
au principe et qu’il lui soit ainsi interdit de changer sa position ultérieurement.
143. Tertio, le Tribunal ne considère pas que le principe de « promissory estoppel »
s’applique dans un cas de manquement à la promesse faite par la Défenderesse.
144. Quarto, la Demanderesse n’a pas démontré qu’elle allait changer sa position à la
suite de la modification par la Défenderesse de son analyse sur la loi applicable. Au
contraire, les conclusions de la Demanderesse portant sur la question de la loi applicable
'
lors du présent débat démontrent qu’elle persiste dans sa position initiale selon laquelle la
loi française s’applique au Contrat.
145. Quinto, la notion d'incohérence soulevée par la Demanderesse correspond à
l’objectif général du principe de l'estoppel « by representation » à savoir sanctionner
un comportement « inequitable » ou « unconscionable ». Dans les circonstances de
l’espèce, la Demanderesse n’a identifié aucun élément permettant au Tribunal de conclure
qu’il serait « inequitable » ou « unconscionable » de laisser la Défenderesse changer sa
position sur la loi applicable par rapport à son analyse initiale.
146. Sexto, à la lumière des observations susmentionnées, il n’est pas nécessaire que le
Tribunal prenne position sur la nature du préjudice prétendument subi par la
Demanderesse.
147. En conclusion, il n’y a pas lieu d’appliquer le principe de l’estoppel « by repre¬
sentation » au cas d’espèce et d’interdire à la Défenderesse de s’appuyer sur sa nouvelle
argumentation concernant la loi applicable au Contrat. »
NOTE. — I.— Dans la présente affaire, la demanderesse n’avait pas traité, ni dans sa
demande d’arbitrage ni dans sa note en réponse à la demande reconventionnelle, de la
question de la loi applicable au fond de manière spécifique et explicite. La défenderesse
dans sa réponse à la demande d’arbitrage avait par contre soutenu que la dernière phrase de
la clause intitulée « Arbitration — Applicable Law and Court of Jurisdiction », à savoir
« English law shall apply to the arbitration process », portait sur la seule loi applicable à la
procédure et, invoquant les dispositions de la Convention de Rome de 1980, estimait que,
en l’absence de désignation d’une loi par les parties, le contrat était régi par la loi du pays où
la partie défenderesse avait son siège social et fournissait la prestation caractéristique, à
savoir la loi française. Cette position avait été reportée dans l’acte de mission avec la
mention que le tribunal arbitral déterminerait le droit applicable. Par la suite, au cours
d’un échange ultérieur de mémoires, alors que la demanderesse indiquait ne pas contester
l’application du droit français, la défenderesse modifiait sa position initiale en interprétant
la clause litigieuse comme désignant le droit anglais. Pour la défenderesse, le titre de la
clause indiquait clairement que l’intention des Parties était de régler non seulement la
question de la compétence arbitrale, mais également celle de la loi applicable au fond,
la clause compromissoire traitant déjà la question de la loi applicable à la procédure en
faisant référence au Règlement d’arbitrage de la CCL Tout en soulevant des objections
quant au changement de position adopté par son contradicteur, la demanderesse a maintenu

Lililí— -ici-i .:
sa position estimant que la convention d’arbitrage ne procède pas à la désignation d’une loi
applicable au fond et que les dispositions de la Convention de Rome du 19 juin 1980
conduisaient à faire application du droit français.
Dans la sentence rapportée, l’arbitre indique en conséquence devoir « identifier la loi au
regard de laquelle la clause contractuelle litigieuse doit être interprétée, c’est-à-dire la
clause compromissoire qui, selon l’une des Parties, contient la désignation des lois applic¬
ables au Contrat ». Le recours aux dispositions de la Convention de Rome du 19 juin 1980
sur la loi applicable aux obligations contractuelles ne résulte pas de l’application d’une
règle de conflit du for, l’arbitre siégeant à Paris, mais de l’accord des parties. Il doit
toutefois être souligné que la question devant être tranchée portait uniquement sur l’inter¬
prétation des termes controversés de choix de loi et non sur l’interprétation de la clause
a?, compromissoire proprement dite, la compétence de l’arbitre n’étant pas contestée. De fait,
«• le paragraphe 2 d) de l’article 1 de la Convention de Rome exclut de son champ d’appli¬
■i. cation les conventions d’arbitrage. Cette exclusion, qui peut trouver une justification dans
, l’existence d’autres conventions internationales traitant plus spécifiquement de l’arbitrage
international, concerne les aspects procéduraux ainsi que la formation, la validité et les
effets de la convention d’arbitrage. A l’évidence, dans le cas où cette dernière fait partie
intégrante d’un contrat, l’exclusion prévue par la Convention de Rome ne porte que sur la
clause elle-même et non sur l’ensemble du contrat. Il en résulte que l’exclusion prévue ne
concerne pas la prise en considération du choix du droit que les parties ont effectué dans
une convention d’arbitrage. La règle énoncée au paragraphe 1 de l’article 3 de la
Convention de Rome, d’après laquelle le contrat est régi par la loi choisie par les parties,
consacre en effet le principe de l’autonomie de la volonté des parties quant au choix du droit
applicable. Toutefois, ce choix doit être exprès ou résulter de façon certaine des disposi¬
tions du contrat ou des circonstances de la cause.
C’est donc par application de la Convention de Rome que l’arbitre unique dans la
présente affaire procède à l’interprétation des termes litigieux de choix de droit aux fins
de déterminer si la loi anglaise, invoquée par la défenderesse, est la loi applicable au
contrat. Le désaccord manifeste des parties sur le sens à donner aux termes « English
law shall apply to the arbitration process » contenue dans une clause intitulée
« Arbitration - Applicable Law and Court of Jurisdiction » écartant un choix explicite
du droit applicable, l’arbitre unique recherche à partir de facteurs objectifs ce qui aurait été
leur intention. C’est en confrontant les différents arguments développés par les Parties à
l’analyse des circonstances et des dispositions contractuelles mais aussi à la signification
raisonnable des termes employés que la sentence conclut au choix implicite de la loi
anglaise. Il doit être relevé que parmi les motifs de sa décision, l’arbitre note que les
Parties ont choisi un mode neutre de solution de leurs différends potentiels en recourant
à l’arbitrage de la CCI, écartant par là même toute compétence à leurs tribunaux respectifs,
et qu'un tel choix constitue l’indice d’un choix d’une loi neutre applicable au fond, plutôt
que la loi nationale, yéménite ou française, de l’une ou l’autre des Parties. À cet égard, le
principe d’autonomie, que consacre la Convention de Rome, autorise pleinement les parties
à faire choix d’une loi n’ayant aucun lien avec le contrat en cause.
R. — La Demanderesse ayant soutenu qu’un acte de mission tel que prévu par le
Règlement d’arbitrage de la CCI constituait un contrat entre les parties et la défenderesse
estimé que ce document n’est qu’un acte de procédure sans aucune valeur contractuelle,
l’arbitre unique fait une correcte interprétation de l’objet et de la nature de ce document en
considérant qu’un acte de mission peut formaliser un ou plusieurs accords pourvu cet ou ces
accords existent au préalable. De fait, l’acte de mission est un acte de procédure prévu par
i l’article 18 du Règlement (1998) qui a pour principale fonction de constater tout accord des
' ; parties, adapter, modifier ou compléter au besoin les termes de la convention d’arbitrage à
l’origine de l’investiture et de la compétence des arbitres. Mais ce document a également
pour vocation de délimiter la mission de l’arbitre au regard des demandes dont il est saisi et
f'i
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AFFAIRE NO. 13763, 2006
SENTENCES ARBITRALES
par l’arbitre.
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conditions requises en vue d’établir la perte d’un droit en vertu du principe de 1’« estoppel » »,
il est très clair que l’application de ce principe à l’espèce manque, de base. Les porteurs
n’ont pas fait de déclaration claire et non équivoque sur laquelle l’État débiteur pût à bon
droit se fonder et se soit fondé. L’État débiteur n’a pas modifié sa position. La dette serbe
reste telle qu’elle avait été contractée à l’origine. »), et la Cour internationale de Justice
(V. notamment Affaire du temple de Préah Vihéar (Cambodge c/ Thaïlande), Fond, Arrêt
du 15 juin 1962 : Rec. CIJ 1962, p. 6, spéc.p. 26: « C’est une règle de droit établie qu’une
partie ne saurait invoquer une erreur comme vice du consentement si elle a contribué à cette
erreur par sa propre conduite, si elle était en mesure de l’éviter ou si les circonstances
étaient telles qu’elle avait été avertie de la possibilité d’une erreur ». -Affaire du Différend
frontalier terrestre, insulaire et maritime (El Salvador/Honduras), requête à fin d’inter¬
vention, arrêt : Rec. CIJ 1990, p. 92, spèc. p. 118 : « Dans la mesure où le Nicaragua se
fonde sur l’estoppel, la Chambre se bornera à dire que quelques éléments essentiels requis
f- pour qu’il y ait estoppel ne lui semblent pas avoir été établis, à savoir une déclaration
qu’une partie a faite à une autre partie ou une position qu’elle a prise envers elle et le fait
que cette autre partie s’appuie sur cette déclaration ou position à son détriment ou à
l’avantage de la partie qui l’a faite ou prise. », la notion d’estoppel a été consacrée par
plusieurs sentences arbitrales comme un nouveau principe général du droit du commerce
international (E. Gaillard, L’interdiction de se contredire au détriment d'autrui comme
principe général du droit du commerce international (le principe de l’estoppel dans quel¬
ques sentences arbitrales récentes) : Rev. arb. 1985, p. 241). Ce principe est dorénavant en
France reconnu en matière d’arbitrage international depuis un arrêt de la Cour de cassation
du 6 juillet 2005 (Cass. lr‘ civ., 6 juill. 2005, Golshani d Gouvernement de la République
islamique d’Iran : Rev. arb. 2005, p. 993, note Ph. Pinsolle ; D. 2006, p. 1424, note E.
Agostini ; RTD corn. 2006, p. 309, obs. E. Loquin ; Gaz. Pal. 24-25 févr. 2006, p. 18, note
F.-X. Train).
Le principe de l’estoppel « by representation » a pour finalité de protéger une partie
contre le comportement incohérent de l’autre. Mais il convient de souligner que le change¬
ment d’argumentation de fait ou de droit effectué en cours de procédure par une partie n’est
pas à lui seul suffisant pour que le principe s’applique. Encore faut-il que l’autre partie
puisse démontrer que le changement intervenu lui cause un préjudice sans pour autant
être constitutif de mauvaise foi. Aussi, dans la présente sentence, l’arbitre procède t-il à une
analyse du comportement de chacune des parties et à la recherche d’éléments susceptibles
de caractériser un manque de loyauté procédural avant de décider de ne pas appliquer le
principe d’estoppel « by representation ». Le fait que la question de la détermination du
droit applicable demeurait ouverte et que le tribunal arbitral devait, aux termes de l’acte de
mission, se prononcer à cet égard apparaît être le motif déterminant retenu par la sentence.
Dans ce contexte, la défenderesse pouvait légitimement modifier une position prise anté¬
rieurement et en faire état dans le débat contradictoire qui s’instaure devant l’arbitre, sans
affecter les droits procéduraux de la demanderesse. Ên définitive, « le comportement
procédural de [la défenderesse] n’était pas constitutif d’un changement de position, en
droit, de nature à induire [la demanderesse] en erreur de ses intentions » (Cass. ln civ.,
3 févr. 2010, Mérial d Klocke Verspackung-ServiceGmbH : Rev. arb. 2010, p. 93, note
L. Weiller ; JCP 2010, 178, obs. J. Ortscheidt; Gaz. Pal. 28-29 mai 2010, n° 148 à 149, p.
39, obs. F.-X. Train).
J.-J. A.

r
i-.'.- ■-T7íV.J -J- :--¿J i
Sentence arbitrale finale rendue dans l’affaire CGI n° 14114 en 2007 (original
I. —
Groupe de sociétés. — Responsabilité du fait des filiales. — Actes
de concurrence déloyale.
IL — Procédure arbitrale. — Procédures parallèles. — Connexité.
III. — Demandes nouvelles. — Moyen de défense (non). — Recevabilité.
i IV. —
Concurrence déloyale. — Contrat de distribution exclusive.
Dommages-intérêts. — Appréciation. — Équité.
—
Un Tribunal arbitral, siégeant à Paris, tranche un litige portant sur de prétendus actes de
concurrence déloyale réalisés, après la résiliation d 'un contrat de distribution exclusive, par
la filiale sur le territoire contractuel du fabriquant ainsi que sur de prétendues violations des
obligations subsistantes à sa charge.
Il examine également la prétention que le rachat par un concurrent de son distributeur
constituait une faute justifiant la mise en place d'un nouveau réseau de distribution en
France et une demande de dommages et intérêts.
En l’espèce, un contrat de distribution exclusive avait été conclu entre un distributeur
français et un fabriquant suisse et avait pour objet l’organisation de la commercialisation et
de la maintenance des produits du fabriquant sur le territoire contractuel ; il avait été résilié
par le fabriquant après que le distributeur ait fait l’objet d’un rachat par un concurrent,
conformément à une disposition contractuelle offrant une faculté de résiliation dans cette
situation.
Le Tribunal arbitral observe à titre préliminaire que son examen « sera conduit sur la
base de la loi suisse applicable au fond de ce différend. Les arrêts des juridictions françaises
produits par les parties, tout en méritant le respect du tribunal arbitral, ont été rendus sur la
base du droit français et, en tout cas, ne lient pas ce Tribunal arbitral, comme cela a
également été reconnu à l’audience par les parties ».
Le Tribunal s’attache ensuite à l’examen des exceptions d’irrecevabilité soulevées
par les parties. Le fabriquant faisait valoir d’une part que les griefs invoqués par le deman¬
deur ne portaient pas sur ses actes mais sur ceux de ses filiales et d’autre part que le
demandeur demandait à ses filiales devant le juge étatique français réparation du même
préjudice que celui invoqué devant le Tribunal arbitral. Il soutenait en particulier que « la
personnalité juridique distincte des différentes entités du groupe (du fabriquant] limite
la responsabilité des fondateurs [en l’espèce le défendeur] aux obligations contractées
par la future société (Code des Obligations suisse, art. 64, al. 2, ci-après dénommé «
CO »), sauf dans le cas où la société mère a suscité par son comportement des attentes
particulières qui, ensuite, ne sont pas respectées de manière contraire à la bonne foi ».
Le demandeur répliquait que ces exceptions constituaient des demandes nouvelles
irrecevables par application de l’article 19 du Règlement CCI de 1998.
Analysant les faits de l’espèce (actions des filiales françaises sur la base des instructions
de la maison-mère, le fabriquant suisse, et de son président ; annonce d’ emploi publiée pour
le compte du groupe), le Tribunal observe :
« L’activité du Défendeur concernant la mise en place d’une organisation con¬
currente sur le marché français, le démarchage de la clientèle du Demandeur et la
récupération d’informations confidentielles de ce dernier, sous réserve de

/'évaluation de ces comportements du point de vue de la loyauté de la concurrence,

a été réalisée par le Défendeur par le truchement de sa filiale (. . .).
Ces agissements ne permettent toutefois pas de considérer [la filiale] comme un
simple instrument dans les mains du Défendeur au point de faire oublier la per
sonnalité juridique distincte des différentes entités. Le défendeur a, en effet, exercé
-
à l'égard de sa filiale le pouvoir d'influence et d’instigation lui revenant non
seulement par le fait qu'il était son actionnaire unique mais aussi grâce à l'identité
personnelle du PDG de la maison mère et de la filiale française. La levée du voile
social ne saurait être justifiée dans le cas d'espèce en l'absence d’un abus de la
personnalité juridique de la part du Défendeur.
L’indépendance légale de sa filiale n’exclut toutefois pas la responsabilité
délictuelle du Défendeur pour les dommages éventuellement causés au Demandeur
par des actes accomplis directement par le Défendeur et par cette filiale, sur
instigation ou non, en vue de la réalisation de la politique commerciale sur
le marché français du groupe (. . .). La responsabilité du Défendeur est fondée
sur l’article 50(1) CO, qui prévoit que « Lorsque plusieurs ont causé ensemble un
dommage ils sont tenus solidairement de le réparer sans qu’il y ait lieu de distinguer
entre l’instigateur, l’acteur principal et le complice » (. . .). Le Demandeur fait
référence à ce même fondement de la responsabilité du Défendeur lorsque, pour
répliquer à la deuxième exception d'irrecevabilité de la demande, il fait valoir que
l'on est en présence de deux codébiteurs solidaires, le Défendeur et [sa filiale] (. . .)
».
Il convient de préciser qu'aucun jugement ne sera prononcé à l 'encontre de [la
filiale], le Tribunal arbitral n 'ayant pas de compétence à cet égard. Les actes de
[la filiale] seront pris en considération uniquement dans la mesure où le Tribunal
arbitral considère que le Défendeur a agi de concert avec sa filiale et que ces actes
sont dès lors imputables au Défendeur également, en tant que co-auteur au sens de
l’article 50 CO.
En vue des considérations qui précèdent, mais sans préjudice de la décision au
fond, la demande du Demandeur est recevable.
C-.)
[Quant aux] actions entamées par le Demandeur devant de différentes juridic¬
tions françaises [elles] sont tout à fait indépendantes de l’action en arbitrage. Le
Tribunal arbitral, qui siège dans un arbitrage international, n'est pas lié par les
décisions de ces juridictions, compte tenu aussi du fait qu 'il doit appliquer pour sa
décision au fond une loi différente, la loi suisse. D'autre part, le Demandeur a
clairement précisé que dans le cas où une compensation lui est reconnue à la fois
par le Tribunal arbitral à l 'encontre du Défendeur et par le juge étatique à l 'encon¬
tre de sa filiale, il n‘y aura pas double dédommagement, les sociétés condamnées
étant considérées comme codébiteurs solidaires.
Comme cela a déjà été mentionné lors de l 'examen du point précédent (. . .), le
Tribmal arbitral retient en principe la responsabilité solidaire du Défendeur. Par
conséquent, il rejette l 'exception d 'irrecevabilité de la demande formulée à ce titre.
(...)
Enfin, l’exception de demande nouvelle, soulevée par le Demandeur sur le fondement de
l’article 19 du Règlement CCI est également rejetée :
« En effet, d’une part, il peut être soutenu, comme l’a fait le Défendeur, qu’il s'agit
d'une défense de procédure plutôt que d'une demande nouvelle ; d’autre part et
surtout, l’exception d'irrecevabilité de la demande a été soulevée par le Défendeur
dans son Mémoire N.l, l’autre partie ayant eu tous les moyens pour y répondre,
comme elle l’a d’ailleurs fait. Le droit d’être entendu a été pleinement respecté,
sans que le déroulement régulier de la procédure ait été perturbé ».

.1- i;.:-
■j

Sur le fond, le demandeur reprochait au défendeur un débauchage massif de ses
employés. Le Tribunal arbitral observe :
« Il faut rappeler que ce que le Demandeur reproche au Défendeur est d’avoir mis
en place des comportements déloyaux pour réaliser son activité concurrente en
France. Le Demandeur invoque la LCD, qui prévoit à son article 2, d’une façon
générale, ce qui suit :’Est déloyal et illicite tout comportement ou pratique com¬
merciale qui est trompeur ou qui contrevient de toute autre manière aux règles de la
bonne foi et qui influe sur les rapports entre concurrents ou entre fournisseurs et
clients Parmi ces comportements déloyaux et illicites aux sens de la loi s’insère,
selon le Demandeur, le débauchage massif de ses salariés. Compte tenu de la
désorganisation de son entreprise entraînée par ce débauchage, le Demandeur
3T fait référence aussi à l’article 9 de la LCD, qui vise la protection de l’atteinte à
S/ la clientèle, au crédit, à la réputation professionnelle, aux affaires et aux intérêts
économiques, ainsi qu’à l’article 41 CO, qui traite de la réparation du dommage
causé intentionnellement, par négligence ou imprudence.
Le Tribunal arbitral ne saurait suivre le Demandeur sur le terrain du prétendu
JL' caractère déloyal et illicite des comportements du Défendeur quant au débauchage
de ses employés par [la filiale],
Les investigations faites par des huissiers de justice concernant certaines
réunions organisées en Suisse par [le président du défendeur] apportent seulement
la preuve de la participation de certains employés du Demandeur, mais non celle
que ces derniers ont été demandé [sic] de fournir la liste du personnel ou des
projets en cours du Demandeur (. . .).
La liste des salariés du Demandeur trouvée auprès de [la filiale française] (. . .)
peut signaler l’intention de contacter certains d’entre eux en vue de leur emploi.
Toutefois, il ressort du dossier, en particulier de la correspondance adressée par
un grand nombre de ces salariés au Demandeur, que la décision de quitter ce
dernier pour rejoindre [sa filiale] a eu des motivations précises propres à chacun
d’eux. Le Tribunal arbitral en conclut qu’ils auraient quitté le Demandeur sans que
le Défendeur ou sa filiale n’aient eu besoin de disposer d’une liste de ces salariés.
(...)
Le Défendeur a profité de cette situation pour organiser son activité concur¬
rente, sans qu’un comportement déloyal ou illicite puisse lui être reproché.
D’après la doctrine et la jurisprudence suisse, le débauchage de salariés n’est
en principe pas déloyal ou illicite ( . .) ».
Or, ni la reprise de l’ancienneté des employés débauchés, ni l’offre de prix spéciale faite
à un nombre limité d’entre eux ne révèlent des incitations allant « au-delà de la pratique
dans ce genre d’affaires ».
Le fait que le débauchage des salariés du demandeur aurait excédé le nombre de per¬
sonnes nécessaires à l’activité concurrente du défendeur ne saurait non plus être retenu
comme preuve d’un comportement déloyal dès lors qu’il est intervenu en temps utile pour
que le défendeur organise l’activité de sa filiale pour l’échéance des contrats de mainte¬
nance du demandeur et que ce dernier est resté en mesure de faire face à ses engagements
commerciaux.
Le demandeur reprochait également au défendeur « la récupération d’informations
confidentielles » concernant sa clientèle et le « know-how du Demandeur sur la configu¬
ration spécifique de chaque site de production dont le Demandeur assurait l’entretien ».
Pour le Tribunal :
« Concernant ce chef de la demande il faut faire référence, en plus de l’article 2 de
la LCD (. . .), aux articles 5(b) (c) et 6 de la LCD, dont le texte est le suivant :

« Art. 5, Exploitation d’une entreprise d’autrui.

Agit de façon déloyale celui qui, notamment :
a .. . .
b. Exploite le résultat du travail d’un tiers, par exemple des offres, des calculs ou
des plans, bien qu’il sache que ce résultat lui a été remis ou rendu accessible de
façon indue ;
c. Reprend grâce à des procédés techniques de reproduction et sans sacrifice
correspondant le résultat de travail d’un tiers prêt à être mis sur le marché et
l’exploite comme tel » Art. 6, Violation des secrets de fabrication ou d’affaires
qu’il a surpris ou dont il a eu indûment connaissance d’une autre manière.
(...)
Il faut d’abord préciser que la légitimité de l'utilisation par an nouvel employ¬
eur de l’expérience professionnelle acquise par l’employé auprès du précédent
employeur n’est pas en question. Il est question ici de l'exploitation de la part
du nouvel employeur, (. . .), de secrets commerciaux ou de fabrication du Deman¬
deur. D‘après la jurisprudence du Tribunal fédéral (ATF 103 IV 283 p. 284) citée
par le Défendeur à l 'audience, « constitue un secret, toute connaissance particu¬
lière qui n’est pas de notoriété publique, qui n’est pas facilement accessible, dont un
fabriquant ou un commerçant a l’intérêt légitime à conserver l’exclusivité et qu’en
fait il n’entend pas divulguer. Il faut entendre par secrets de fabrication des
secrets commerciaux, des informations qui peuvent jouer un rôle sur le résultat
commercial » (. . .).
Le Tribunal établit alors sur la base des éléments de preuve figurant au dossier que la
documentation technique dont le défendeur a pu disposer dès le début de son activité n’était
pas en possession de la clientèle du demandeur et qu’elle n’avait donc pu être obtenue de
cette dernière mais uniquement des cadres du demandeur qui l’avaient rejoint et en dis¬
posaient grâce à leurs activités antérieures. Il observe que dans ces circonstances :
« L 'exploitation de la part du Défendeur (par le truchement de sa filiale (...) de la
documentation technique du Demandeur constitue un acte de concurrence déloyale
aux sens des articles 5 (b) (c) et 6 LCD (. . .). En effet, le Défendeur ne pouvait
ignorer que cette documentation, qui constituait le résultat du travail du Deman¬
deur, lui avait été rendue accessible 'de façon indue’ (article 5(b)) et que, celle-ci
étant déjà sur le marché, il l'a exploité comme telle (article 5(c)) en ayant obtenu
‘indûment connaissance’ (article 6).
L 'action du Défendeur en concurrence déloyale à ce titre entraîne le droit du
Demandeur au dédommagement du préjudice en résultant pour son activité de
maintenance, conformément à l’article 9(3) de la LCD, qui prévoit que « Celui
qui, par un acte de concurrence déloyale, subit une atteinte dans sa clientèle, son
crédit ou sa réputation professionnelle, ses affaires ou ses intérêts économiques en
général. . . 3 [il] peut en outre, conformément au code des obligations, intenter des
actions en dommages-intérêts et en réparation du tort moral, ainsi qu 'exiger la
remise du gain selon les disposition sur la gestion d'affaires » ».
En revanche, le Tribunal estime qu’il n’est pas prouvé que le défendeur se soit approprié
la liste de sa clientèle du demandeur de manière indue, ni que le démarchage de cette
dernière par le défendeur puisse être constitutif de concurrence déloyale. Il note en
particulier :
« Proposer des avantages particuliers [la gratuité des prestations de maintenance
jusqu’à l’échéance des contrats en cours, proposée à certains clients] en vue
d’induire un client à conclure un contrat de maintenance avec le Défendeur au
lieu du Demandeur apparaît comme une pratique normale. La documentation à
laquelle le Demandeur fait référence ne manifeste aucune intention de la part du
Défendeur de faire rompre un contrat conclu par un client avec le Demandeur.
908 Reprinted fixnn the Clunet

|

Compte tenu de leur caractère indirect et général, les attestations de (...) et de
(. . .) ne sauraient fonder l’intervention, en particulier, de l’article 4 (a) LCD, qui
prévoit que ’agit de façon déloyale celui qui notamment : a) incite un client à rompre
un contrat en vue d’en conclure un autre avec lui Dans le cas d’espèce, la preuve
d’une incitation à rompre un contrat avec le Demandeur n'a pas été fournie.
L'offre aux clients potentiels de conditions particulières, comprenant des con¬
ditions générales presque identiques à celles adoptées par le Demandeur ne con¬
stitue pas, aux yeux du Tribunal arbitral, une utilisation ’de méthodes de vente
particulièrement agressives 'prevue par l'article 3 (h) de la LCD
Quant à l’allégation par le demandeur que le défendeur aurait fait obstruction à son
activité de maintenance après l’expiration du contrat en cherchant vainement à augmenter
s le prix des pièces livrées puis en allongeant les délais de livraison de ses pièces, le Tribunal
note :
« Concernant ce chef de la demande il faut faire référence aux dispositions du
Second Avenant, üs'agit, en effet, d'établir s'il y a eu violation d'une obligation
;.i contractuelle de la part du Défendeur, même si le Demandeur ne demande pas la
réparation d’un préjudice découlant de cette violation. En effet, son intérêt est
d'établir que les mesures prises par le Défendeur constituent un acte de concur¬
rence déloyale ayant eu pour but de rendre plus difficile l’activité de maintenance
du Demandeur.
Il convient de rappeler que selon l'Article 4 du Second Avenant,’ En cas de
terminaison du contrat pour quelque raison que ce soit, le Fabricant s’engage à
livrer au Concessionnaire Exclusif des pièces détachées dans des conditions de prix
et de délais identiques à la période d’exécution du contrat, pendant une période de
10 (dix) années commençant à la date de terminaison du contrat’.
Concernant l’obstruction de l'activité de maintenance alléguée par le Deman¬
deur en tant qu'acte de concurrence déloyale en vue de l 'engagement de fourniture
de pièces détachées de la part du Défendeur, les considérations suivantes peuvent
être formtdées.
(. . .) ».
Si l’augmentation des prix, qui n’a jamais pris effet, ne peut justifier la condamnation du
demandeur, « L’allongement des délais de livraison de pièces détachées documenté par le
Demandeur (. . .) n’a pas été contesté par le Défendeur. Il constitue une violation des
obligations contractuelles du Défendeur telles qu’elles résultent de l’article 4 du Second
Avenant. Il sera pris en considération par le Tribunal arbitral lors de la détermination du
montant du préjudice concernant l’activité de maintenance (. . .) ».
Après avoir rejeté une demande relative à une prétendue violation de l’exclusivité
stipulée au contrat, essentiellement pour défaut de preuve, le tribunal s’interroge sur le
bien-fondé et les conséquences du refus par le défendeur de livrer après l’expiration du
contrat des équipements commandés ultérieurement et destinés à un client français [X].
« Il convient de rappeler qu 'au moment où la résiliation du Contrat a pris effet, le
( . .), le Défendeur s'était engagé par écrit à exécuter certaines commandes, parmi
lesquelles il y avait l 'équipement pour [X]. Il est vrai qu'autant la lettre du Deman¬
deur (. . .) que la réponse du Défendeur (. . .) font référence seulement à six
machines [A] destinées à [X], Toutefois, il est précisé dans l'annexe de la lettre
du Demandeur intitulé ’Delivery planning’ que la fourniture à [X] inclut les 6
machines [B], à installer en fonction de la performance positive de la première
machine [B], en même temps que les machines [A] supplémentaires. Par ailleurs, le
fait que le système [A] inclut dans sa configuration [B] ressort aussi de la lettre du
Défendeur du (. . .) contenant l'offre chiffrée pour un système [A] (. . .).
En vue de ce qui précède, selon le Tribunal Arbitral, le Défendeur s'était engagé
à livrer au Demandeur six systèmes [A] y inclus 6 [B].

SENTENCES ARBITRALES AFFAIRE NO. 141 14, 2007
Il résulte du dossier que le Défendeur n 'a pas fourni [l’élément B] destiné à [X],
justifiant initialement ce retard par le fait qu 'un délai plus long que prévu était
nécessaire pour la mise au point de cette machine (...). A ce dernier sujet, le
Demandeur a versé aux débats un communiqué du Défendeur selon lequel il avait
terminé le développement de [B] au mois de [avant que la résiliation du contrat n’ait
pris effet] (. . .).
C'est seulement par courrier du (. . .y[un an plus tard], [que] le Défendeur a fait
savoir qu'il avait changé d 'avis et qu 'il ne livrerait pas l'élément [B], de même que
les codes d’accès électroniques, invoquant la multitude de procédures et de
demandes extrêmement lourdes que vous souhaiteriez imposer au [groupe du
défendeur] par tous [les] moyens possibles en mentionnant que son 'consentement
de l’époque a été largement vicié’ (. . .).
Avant d'examiner cette exception, il y a lieu de souligner que, comme indiqué à
juste titre par le Demandeur, le Défendeur reconnaît dans cette lettre, implicitement
mais clairement, qu’ils 'était aussi engagé à livrer [l ’élément B]. A part la singidarité
sur le plan du droit de considérer un contrat comme vicié en raison d’une erreur
affectant une partie de son objet seulement, les conditions requises par l’article 24
(1) CO pour l'existence de l’erreur essentielle ne sont pas remplies en l’espèce.
En effet, même si à la date de l 'accord du (.. .) les relations entre les parties
s’étaient détériorées, c'est seulement à une date postérieure à cet accord que le
Demandeur assigne [les filiales du défendeur] en procédure urgente devant les
tribimaux français pour faire constater les actes de concurrence déloyale dont il a
été victime. Etaient également postérieure à cet accord les autres actions entamées
par le Demandeur devant différents conseils de prud’hommes tendant à faire con¬
damner des anciens salariés qui avaient rejoint [ladite filiale] pour avoir participé
à des faits de concurrence déloyale.
Il est par conséquent à exclure que le Défendeur puisse avoir fait confiance, au
moment de donner son consentement à l’accord du (. . .), dans le fait que le Deman¬
deur s ’abstiendrait d 'agir en justice contre le Défendeur et ses filiales, dans le
cadre d’une éventuelle dégradation future des relations entre les parties ».
Quant au quantum du préjudice causé au demandeur par les agissements fautifs du
défendeur, le Tribunal note :
« R convient de rappeler que le Demandeur a droit aux dommages-intérêts à deux
titres différents : (a) par rapport à son activité de maintenance, à titre de récup¬
ération d’informations confidentielles par le Défendeur (.. .jet pour l’allongement
des délais de livraison de pièces détachées (. . .); (b) pour le défaut de livraisons
par le Défendeur des six machines [B] destinées à [X], Les dispositions du CO en
matière de dommages-intérêts sont indirectement applicables dans le premier cas
en vertu du renvoi de l'article 9(3) LCD ( . .) et directement applicables dans le
deuxième cas.
Il a été décidé précédemment que le seidfait de concurrence déloyale imputable
au Défendeur est celui concernant la récupération d’informations confidentielles
et leur exploitation dans l'activité de maintenance de sa filiale ( . .).
Il s 'ensuit que le préjudice pour lequel le Demandeur a droit aux dommage-
sintérêts est seulement celui relatif ata contrats de maintenance sur les [produits
contractuels].
Par contre, l'absence de lien de causalité entre les autres faits de concurrence
déloyale ou le non-respect du Contrat allégués par le Demandeur et la respons¬
abilité du Défendeur conduit à exclure les autres préjudices revendiqués par le
Demandeur et chiffrés par [son expert] (. . .).
L'analyse [du premier poste de préjudice] faite par le [rapport d’expert] est
fondée sur une méthodologie de calcul bien détaillée et motivée, conforme à la
nu Reprinted from the Cluoet

asartÿÿ-E ....

pratique comptable. Elle est retenue par le Tribunal arbitral dans son résultat sous
réserve de deux aspects suivants.
D'abord, il faut tenir compte du fait que, comme mis en évidence par le [rap¬
port], le lien de causalité entre la perte et le comportement fautif du Défendeur V
explique principalement par le fait que [le demandeur] a perdu au profit de [du
défendeur] les techniciens en charge de ces contrats’ (...). Il faut donc établir
quel est le poids à attribuer à la qualification de ‘principalement’ utilisée dans le
[rapport] pour la perte des techniciens par rapport à la récupération d’informations
confidentielles. L’article 42(2) CO dispose que : Lorsque le montant exact du dom¬
mage ne peut être établi, le juge le détermine équitablement en considération du
cours ordinaire des choses et de mesures prises par la partie lésée Se prévalant du
pouvoir qui lui est reconnu par cette disposition et pour tenir compte du préjudice
résultant de l'allongement des délais de livraison des pièces détachées (. . .), le
?. Tribunal arbitral attribue équitablement au grief en question un poids égal à environ
40% du préjudice total calculé dans le [rapport],
De plus, le préjudice est à ce titre calculé dans le [rapport] avec référence à la
durée de vie de dix ans des [produits contractuels] pour les contrats résiliés ( . .)
et avec perte progressive des revenus du portefeuille des contrats de maintenance
restants [pendant cette période]. La disponibilité des pièces détachées pendant 10
ans (. . .) ne saurait être retenue comme justification suffisante à cet effet. Il faut
en effet tenir compte d’autres facteurs qui auraient en tout cas affecté la capacité
concurrentielle du Demandeur, tel l'absence d'accès aux innovations technolo¬
giques et la présence d’un nouveau concurrent sur le même marché [la filiale du
défendeur]. Faisant encore une fois appel à l’article 42(2) CO, le Tribunal arbi¬
tral estime que, sur la base d'une évaluation équitable du préjudice du Deman¬
deur, me durée moyenne de cinq ans pour les deux catégories de contrats de
maintenance (. . .) est plus conforme aux perspectives de développement techno-
logiques et commerciales du marché, et de l 'acquisition progressive par le Défen¬
deur d'un patrimoine d’informations techniques et du support informatique
nécessaire.
Au vu des considérations qui précèdent, le montant du préjudice subi par le
Demandeur pour l 'exploitation d'informations confidentielles de la part du Défen¬
deur, compte tenu de la valeur actuelle des contrats déjà perdus et des contrats
restants [est réduit de 76 %],
Le Tribunal applique le même raisonnement au préjudice né de la perte partielle du
contrat avec fX], allouant au demandeur la perte de marge qu’il alléguait avoir subie sur la
vente et, en la réduisant, la perte de marge sur la maintenance.
La demande reconventionnelle du défendeur, fondée sur une prétendue faute grave du
demandeur que constituerait sa cession à un concurrent est enfin rejetée :
« La demande reconventionnelle est dépourvue de fondement.
Comme relevé par le Demandeur, les actes imputés à cette société comme
contraires aux dispositions contractuelles, notamment la cession de ses actions
à une tierce partie (. . .) n 'ont pas été accomplis par le Demandeur mais par les
propriétaires des actions vendues à (.. .).
Aucun contrôle n 'aurait pu être exercé par le Demandeur sur ses actionnaires
lors de la vente de leurs actions.
Mais il y a plus. Le Contrat prévoit clairement la possibilité que la propriété
d’une des parties puisse être cédée à un tiers donnant le choix à l’autre partie, dans
ce cas, de résilier le Contrat. Cette éventualité a été prévue non seulement
dans le cas d'une prise de contrôle totale ou partielle d’une des parties mais
aussi dans le cas où une société concurrente prenne une participation dans
l’une des parties (article VII 6).

SENTENCES ARBITRALES AFFAIRE NO. 141 14, 2007
La prise de participation totale par (. . .) répond à une prévision contractuelle.

Elle a déterminé le Défendeur à résilier le Contrat, comme il avait le droit de le
faire. L 'évènement que le Défendeur prétend imputer à son cocontractant à titre de
faute lourde rentre parfaitement dans la prévision contractuelle.
(--ÿ)
Le caractère brutal de la rupture allégué par le Défendeur a trait aux relations
personnelles de longue durée entre [les anciens actionnaires du demandeur et celui
du défendeur] mais ne relève pas du droit.
Quant aux frais de l’arbitrage, le Tribunal note que chaque partie a obtenu gain de cause
et a perdu de manière équilibrée, la demande d’indemnisation du demandeur ayant été
réduite de 85 % et celle, reconventionnelle, du défendeur ayant été rejetée. Au vu de ce
résultat, il décide que chaque partie doit supporter les frais et honoraires qu’elle a encourus
pour sa défense ainsi que la moitié des frais administratifs et des frais et honoraires des
arbitres.
NOTE. — I. Les tribunaux arbitraux sont régulièrement confrontés à des difficultés
liées à l’existence d’un groupe de sociétés. Dans la configuration habituelle, ils doivent se
prononcer sur la possibilité d’étendre la convention d’arbitrage à une société du groupe qui
n’en est pas signataire. On sait qu’en droit français de l’arbitrage, depuis la fameuse
sentence Dow Chemical ( Sentence CCI no 4131 de 1982 : Rev. arb. 1984, p. 137 ; JDI
1983, p. 899, note Y. Derains), la clause s’étend aux sociétés du groupe tiers au contrat s’il
peut être inféré des circonstances de l’espèce, et notamment du rôle qu’elles ont joué dans
la conclusion, l’exécution ou la résiliation du contrat, que l’intention commune était
qu’elles soient liées par la convention d’arbitrage. L’appartenance du tiers au groupe de
sociétés d’un des signataires apparaît alors comme un indice de cette intention commune
qui ne se suffit pas en lui-même pour justifier l’extension de la clause mais n’est pas non
glus nécessaire. Pour une illustration récente, tirée du domaine proche de l’extension à un
Etat de la clause d’arbitrage conclue par un organisme qui en dépend, la Cour d’appel de
Paris a jugé dans l’affaire Dallah Real Estate que « L’Etat qui a créé un trust ayant la
personnalité morale pour s’occuper d’un projet et qui, parallèlement et après la disparition
de ce trust, continue de s’impliquer dans l’exécution du contrat et se comporte comme si le
contrat litigieux était le sien, sans qu’il soit fait état d’actes accomplis par le trust, partie
signataire, et qui, lors des négociations précontractuelles s’était déjà comporté ainsi, con¬
firme que la création du trust était purement formelle, et qu’il était la véritable partie à
l’opération économique. » (CA Paris, 17 févr. 2011 : Rev. arb. 2011, p. 286 ; Cahiers de
l 'arbitrage 2011, p. 470). La jurisprudence française est cependant loin d’être généralisée
comme le montre le refits des juges anglais de reconnaître la sentence rendue dans cette
affaire au motif qu’il n’existait pas en l’espèce de convention d’arbitrage opposable à l’État
(Dallah Estate and Tourims Holding Company v. The Ministry of Religious Affairs,
Government of Pakistan [2010] UKSC 46)
La question posée aux arbitres était très différente en l’espèce. Il ne s’agissait pas de
savoir si la clause compromissoire pouvait être étendue à la filiale française du fabriquant,
seule société partie au contrat de distribution, ce qui n’était pas demandé et était difficile¬
ment concevable. En effet, la filiale ayant été formée après la résiliation du contrat, on voit
mal comment elle aurait pu être impliquée dans sa conclusion, son exécution ou sa résilia¬
tion de manière à établir que l’intention commune des parties puisse avoir été qu’elle soit
liée par la clause. Le Tribunal prend donc bien garde de préciser qu’il n’a pas compétence
pour prononcer un jugement à l’encontre des filiales et qu’il ne le fera pas. Pour autant, la
responsabilité du fabriquant n’est pas écartée.
Confronté à une question similaire, un tribunal arbitral a déjà décidé que « le principe
de l’identité économique doit prévaloir sur celui de la dualité juridique » et qu’une société
ne saurait se prévaloir de l’effet relatif des contrats et de la personnalité juridique de sa
filiale pour s’exonérer du fait d’un acte de cette dernière, qui s’il avait été accompli par elle,

l’aurait été en violation de ses obligations contractuelles (Sentence CCI n° 10988 de 2003:
JDI 2006, p. 1407, obs. B. D.). Dans la présente affaire, le Tribunal arrive à un résultat
similaire, mais sur la base d’un fondement différent. Alors que la responsabilité du débiteur
dans la première affaire relevait de la responsabilité contractuelle, il s’appuie sur le droit
suisse qui établit une responsabilité solidaire, de nature délictuelle, des co-auteurs d’un fait
dommageable. Il décide donc que si le fabriquant et sa filiale, éventuellement sur l’insti¬
gation de la première, se sont livrés ensemble à des actes de concurrence déloyale au
détriment de la demanderesse, sa responsabilité est engagée à hauteur de l’entier préjudice
souffert.
Quel que soit son fondement juridique, la solution retenue par ces deux sentences doit
être approuvée en ce qu’elle ne permet pas à une partie de se cacher derrière une organi¬
sation juridique qu’elle a souvent elle-même déterminée pour échapper à la réparation d’un
<?• dommage auquel elle a contribué.
IL — Dès lors que le Tribunal arbitral jugeait recevables les demandes du distri¬
buteur fondées sur de prétendus actes de concurrence déloyale de la filiale de la défen¬
deresse pour lesquelles il avait déjà engagé des actions judiciaires en France, la question
des conséquences de la connexité entre ces actions et la présente procédure arbitrale,
avec le risque d’une appréciation contradictoire des faits litigieux et d’une double
indemnisation, se posait. Une solution aurait été que le Tribunal arbitral sursoie à statuer
dans l’attente de la résolution des contentieux parallèles français, avec l’accord des deux
parties ou à la demande de l’une d’elles (sur le pouvoir du tribunal arbitral de suspendre
la procédure, V. Y et B. D., note ss sentence CCI n° 9800 de 2000 : JDI 2004, p. 1284).
Mais dès lors que la suspension ne lui était pas demandée et qu’il jugeait que l’examen
des demandes connexes qui lui étaient soumises relevait de sa compétence, on voit mal à
quel titre il aurait pu les déclarer irrecevables, ni comment l’irrecevabilité aurait pu être
prononcée sans provoquer un déni de justice. Il est en effet inconcevable qu’elle
entraîne la consolidation du litige par renvoi devant les juridictions étatiques françaises
qui ne sauraient concurrencer la compétence exclusive que les arbitres tirent de la con¬
vention d’arbitrage.
Le Tribunal n’est cependant pas entré dans ce débat et a rejeté l’exception d’irrecev¬
abilité en justifiant un examen immédiat des demandes contestées par des motifs qui
doivent être approuvés. Il observe en premier lieu qu’il n’est pas lié par les décisions
du juge français ; en d’autres termes, un acte de la filiale peut ou non engager la respons¬
abilité de sa maison mère par application du droit suisse et en fonction de ses obligations
contractuelles et postérieures à la résiliation du contrat, qu’il constitue ou non une faute de
la part de la filiale aux yeux du juge français appliquant le droit français. De surcroît,
l’engagement par la demanderesse que « dans le cas où une compensation lui [serait]
reconnue à la fois par le Tribunal arbitral à l’encontre du Défendeur et par le juge étatique
à l’encontre de sa filiale, il n’y aura pas double dédommagement, les sociétés condamnées
étant considérées comme codébiteurs solidaires » réduisait les risques de double indemni¬
sation. Le Tribunal en tient d’ailleurs compte dans son dispositif en décidant que « la dette
du Défendeur [constatée par la sentence et dont elle ordonne le paiement] est de nature
solidaire avec la dette résultant de l’éventuelle condamnation de la [filiale] par la juridic¬
tion étatique, à concurrence de cette dernière condamnation ». Le risque de double indem-
■ nisation ne semble cependant pas totalement écarté. Si, du fait de ce dispositif, toute
condamnation par le juge français, au terme d’une des procédures existant à la date de
la sentence, semble devoir venir en déduction de la condamnation prononcée par la
sentence, en tout cas si elle a été exécutée préalablement à la sentence, peut-on être certain
qu’un juge saisi de l’exécution d’une des décisions françaises contre la filiale du fabriquant,
j postérieurement à l’exécution de la sentence rendue contre le fabriquant lui-même, s’esti-
1 mera lié par cette dernière et par la condamnation solidaire prononcée sur le fondement du
droit suisse par le Tribunal arbitral? La décision du Tribunal doit cependant être approuvée
,

dans la mesure où sa mission était de trancher le litige qui lui était soumis dans un délai
raisonnable et où tout risque de contradiction et d’indemnisation qui recouvre les mêmes
chefs de préjudice est inhérent à l’existence de plusieurs ordres juridictionnels ou à la
coexistence de juridictions arbitrales et étatiques.
III.
— Le Tribunal ayant rejeté les exceptions d’irrecevabilité soulevées par la défen¬
deresse, l’examen a posteriori de leur propre recevabilité, contestée par la demanderesse
sur le fondement de l’article 19 du Règlement alors en vigueur (dont les termes sont
similaires à ceux de l’article 23-4 du Règlement de 2011), perdait beaucoup de son utilité
pratique. L’article 19 subordonne la recevabilité de « demandes nouvelles », soumises
après la signature de l’acte de mission et sortant des « Imites » de ce dernier, à une
autorisation du Tribunal arbitral. En l’espèce, il était seulement indiqué à l’Acte de
mission, au titre de la position des parties qu’ « il est essentiel de relever que la société
[demanderesse] poursuit dans des termes très proches la réclamation de ’son préjudice’
devant les juridictions française à l’encontre de la filiale [de la défenderesse]. Il y néces¬
sairement une interdépendance entre cette dernière procédure et la présente action. ». Dans
ce contexte, on peut douter que l’exception d’irrecevabilité, qui repose sur une base fac¬
tuelle déjà invoquée dans l’acte de mission, soit véritablement nouvelle et outrepasse ses
limites. On peut également convenir avec le Tribunal arbitral qu’« il peut être soutenu,
comme l’a fait le Défendeur, qu’il s’agit d’une défense de procédure plutôt que d’une
demande nouvelle », de surcroît restant dans les limites de l’acte de mission, et la prudence
de la formulation apparaît comme le reflet de la difficulté que les Tribunaux arbitraux ont à
appliquer cette disposition (en ce sens, V. E. Schwartz, Les « nouvelles demandes » :
s'orienter au sein de l’article 19 du Règlement CCI : Bull. CCI 2006, vol. 17, n° 2). Le
véritable motif de la décision de recevabilité semble être, quelle que soit la qualification des
deux exceptions, qu’elles ont été soulevées tôt dans la procédure, n’en ont pas perturbé le
bon déroulement, et ont pu être discutées par la demanderesse, soit les éléments que les
arbitres sont invités à prendre en considération par les termes de l’article 19. L’objectif
recherché par cette disposition ressort bien de cette motivation : permettre aux parties de
faire valoir pleinement leur position sans pour autant permettre une perturbation indue de la
procédure provoquée par des demandes tardives qui la retarderaient sans juste raison ou la
déséquilibreraient au profit d’une partie.
IV. — On ne saurait être surpris que le Tribunal arbitral se prononce sur des questions
de responsabilité délictuelle nées d’actes de concurrence déloyale réalisés à l’occasion de
la résiliation du contrat de distribution exclusive. Sa compétence, qui n’était pas contestée
par les parties et sur laquelle il ne s’explique donc pas, est conforme à une jurisprudence
arbitrale bien établie. Une sentence décide ainsi que le Tribunal arbitral qui la prononce «
est compétent pour connaître d’actes de concurrence déloyale, soit d’actes illicites dans la
mesure où de tels actes sont intimement liés à l’inexécution ou la mauvaise exécution d’un
accord contractuel comportant une clause compromissoire » (sentence n° 10988 de 2003
préc. — dans le même sens, V. sentence CCI n° 12167 de 2002 : JDI 2007, p. 1270, note
E. Silva Romero). II reste que la rédaction de la convention d’arbitrage, qui fonde la
compétence des arbitres, doit leur permettre de se saisir du litige. En l’espèce, les actes
de concurrence déloyale invoqués étaient la résultante directe de la résiliation du contrat
rendant nécessaire pour la défenderesse de reconstituer un réseau de distribution ou vio¬
laient les obligations mises à sa charge par le contrat après sa résiliation. Ils entraient donc
dans le champ de la clause compromissoire qui portait sur « tout différend ou litige qui
pourrait survenir ».
Le recours par le Tribunal arbitral à l’équité en complément d’une appréciation
objective du quantum du préjudice sur la base des éléments objectifs fournis n’est pas
non plus isolé. Une sentence CCI n° 3093/3100 avait ainsi jugé en 1979 que « compte tenu
des circonstances et notamment du fait que l’on ignore encore la date du paiement effectif
914 Reprinted from the Cliinet

À
i
‘ÿi

de la dette de la défenderesse, le tribunal arbitral tient pour équitable d’arrondir à 1 100 000
dollars USA le montant de l’indemnité compensatoire qu’il convient d’allouer à la deman¬
deresse » (JDI 1980, p. 951, note Y. Derains). En l’espèce, le Tribunal arbitral pouvait
s’appuyer sur le Code des obligations suisse dont l’article 42(2) dispose que « Lorsque le
montant exact du dommage ne peut être établi, le juge le détermine équitablement en
considération du cours ordinaire des choses et de mesures prises par la partie lésée ».
D’autres sentences évoquent, avec le même effet, le pouvoir souverain que leur confère la
loi applicable (sentence «° 2193 de 2004 : JDI 2007, p. 1276, note E. Silva-Romero). La
cour d’appel de Paris (CA Paris, 17 janv. 2008 : Rev. arb. 2008, p. 333, note N, Melin) est
récemment venue apporter un appui manifeste à cette jurisprudence en jugeant que «
l’évaluation du dommage en équité, qui correspond d’ailleurs à un principe général du
droit reconnu dans tous les systèmes juridiques y compris [le droit applicable], sur la base
S'
des éléments objectifs fournis pour effectuer une appréciation globale, n’implique pas dans
ces conditions que l’arbitre unique ait excédé ses pouvoirs en s’attribuant ceux d’un ami¬
able compositeur ».
i: B. D.

i
:
s
Sentence arbitrale dans l’affaire CCI n° 14241 en 2007 (original en langue

française)
I.
— Acte de mission. —
Stipulations caractéristiques destinées à organiser
le déroulement de la procédure.
U. — Droit applicable.
—
Droit français choisi par les parties.
Convention de Vienne de 1980 sur la vente de marchandises. — Contrat de
—
vente d’équipement industriel. —Logiciels. —
Réception. —
Garantie de
——
performance. —
Part non essentielle des services (article 3.1). Part non
prépondérante des obligations du vendeur (article 3.2). Critère de
et non partielle de la CVIM.

—
détermination du caractère prépondérant de l’obligation.
—
Application totale
Qualification des logiciels comme étant des
biens mobiliers au sens de la CVIM.
in. —Compétence du tribunal arbitral pour prononcer des astreintes.
— Paiement de pénalités de retard. —
Montant dû en vertu de la sentence
arbitrale à venir.
—
Assimilation à une astreinte.
IV. —
Frais de l’arbitrage. —
Pouvoir discrétionnaire du tribunal arbitral
dans la répartition des frais et coûts de l’arbitrage CCI. —
Non-application de
la règle de la proportionnalité liée à l’issue de l’affaire.
Cette sentence, rendue à Paris, par un tribunal arbitral composé de deux co-arbitres
tunisiens et d'un président français, porte sur un contrat de fourniture d’équipements
industriels conclu en 1997 entre le demandeur, une société italienne, conseillé par un
avocat tunisien, et le défendeur, une société tunisienne, conseillé par un avocat parisien.
En vertu du contrat, le demandeur s'est engagé à fournir au défendeur des équipements
de meunerie nécessaires à la réalisation d’une semoulerie, d’une minoterie ainsi qu’à la
supervision du montage et de la mise en marche de ces équipements, pour un prix (en lires
italiennes) correspondant à 4,6 millions d’euros.
Le demandeur a réclamé le paiement du solde du prix dû par le défendeur, qui a réclamé,
à titre reconventionnel, la somme de 100 000 € environ en réparation des préjudices
causés par le retard des livraisons et le non-respect des garanties, ainsi qu’un certain
montant en Dinars tunisiens au titre de frais de personnel liés au montage.
Les arbitres ont condamné l 'acheteur tunisien à payer le solde du prix des équipements
mais ont aussi accueilli ses demandes reconventionnelles qui étaient fondées sur l’inex¬
écution contractuelle de certaines obligations du vendeur italien. Les demandes recon¬
ventionnelles ont été accueillies pour un montant supérieur à la demande principale, et le
tribunal arbitral a condamné le demandeur à supporter deux tiers des frais de l’arbitrage.
L’acte de mission, signé en août 2006, stipulait entres autres :
« I. Les Parties (. . .)
IL Documents produits par les parties jusqu'à la date de signature de l’Acte de
mission (. . .)
III. Rappel succinct des faits à l’origine du litige (. . .)
IV. Résumé de la position des parties ( . .)
V. Les demandes des parties ( . .)

VI. La clause compromissoire :

« Les parties conviennent de régler à l'amiable les difficultés et litiges qui
pourraient résulter de l’interprétation ou de l'exécution du contrat. Au cas où il
serait impossible de parvenir à un accord amiable, dans un délai de trente jours à
partir de la date de la notification de l'existence d'un différend, les deux parties
conviennent que tout différend découlant du présent contrat sera tranché défini¬
tivement, suivant le règlement de conciliation et d 'arbitrage de la Chambre de
commerce internationale de Paris par trois arbitres nommés conformément à ce
règlement. Le tribunal d’arbitrage se réunira à Paris ».
VII. Le lieu de l 'arbitrage :
L 'article 25 du Contrat prévoit que 'Le tribunal d’arbitrage se réunira à Paris'.
Le siège de l 'arbitrage est donc situé à Paris (France).
Le Tribunal pourra cependant, s'il l'estime nécessaire, et sans que cela
n'affecte la localisation de l’arbitrage à Paris, tenir toutes audiences (y compris
par moyen d'audio ou de visioconférence) et réaliser toutes mesures d’instructions
en d’autres lieux situés en France ou à l’étranger ».
VIII. La loi applicable :
Le présent contrat est régi par le droit français en vigueur à la date de signature
des présentes ».
IX. Questions litigieuses :
(ÿÿÿ)
Conformément à l'article 18.1 d) du Règlement, le Tribunal n'estime pas oppor¬
tun d'établir une liste des points litigieux à résoudre. »
X. Le Tribunal :
Le (. . .), le Secrétaire Généra! de la Cour internationale d 'arbitrage de la CCI
a (. . .) confirmé M. (. . .) en qualité de co-arbitre sur proposition du Demandeur, et
M. (. . .) en qualité de co-arbitre sur proposition du Défendeur.
Le (. . .), la Cour internationale d'arbitrage de la CCI a nommé M. (. . .) en
qualité de Président du Tribunal arbitral, sur proposition du Comité National
Français de la CCI.
Les trois arbitres ont accepté leur mission conformément au Règlement.
Les parties déclarent accepter la constitution ainsi faite du Tribunal, et n 'avoir
aucune objection à faire valoir à cet égard, »
XI. Règles de procédure :
1. Règles de procédure :
Le Règlement d'arbitrage de la CCI en vigueur depuis le 1er janvier 1998 est
applicable à la présente procédure.
Toute question non régie par ledit Règlement ou par le présent Acte de mission
sera tranchée par le Tribunal Arbitral, dans le respect de l’égalité des parties et du
contradictoire, de la manière qui lui paraîtra appropriée.
En ce qui concerne les questions de preuves écrites ou orales, le Tribunal Arbitral
pourra, s’il l'estime approprié, s’inspirer des Rides on the taking of evidence in
International Arbitration élaborées par l’International Bar Association.
Chaque partie s’oblige à collaborer loyalement et complètement à la procédure. »
2. Langue de l’arbitrage :
Les parties conviennent que le français sera la langue de l’arbitrage. La
sentence, les ordonnances de procédure, les audiences et tous écrits des parties
seront donc rédigés dans cette langue.
Tous documents et témoignages exprimés dans une langue autre que le français
devront être accompagnés d’une traduction en français, aux frais de la partie qui
les produira ou à laquelle sera ordonnée leur production, lesdits frais étant ensuite
inclus dans les frais de l’arbitrage.
Toute partie ayant l’intention de s'exprimer dans un langage autre que le
français, ou souhaitant présenter des témoins ou experts s’exprimant dans une

Zi-Lr-

langue autre que le français, devra pourvoir à l’interprétation à ses frais, lesdits
frais étant ensuite inclus dans les frais de l 'arbitrage.
3. Notification et communications (. . .)
4. Forme des notifications et communications :
Toutes notifications et communications pourront être effectuées par télécopie
ou courrier électronique confirmé par télécopie.
Toute notification accompagnée de documents ou d’annexes devra cependant
être effectuée par porteur, par lettre recommandée avec accusé de réception, ou
encore par courrier exprès (tel que FedEx, DHL ou Chronopost). De telles noti¬
fications seront alors confirmées par fax (les annexes ou pièces jointes ne devant
alors pas être faxées) et/ou courrier électronique.
5. Délais de procédure ( . .)
e 6. Mesures conservatoires et provisoires :
K Le Tribunal arbitral pourra, conformément à l’article 23 du Règlement, ordon¬
ner toute mesure conservatoire ou provisoire qu’il estimera appropriée.
7. Ordonnances de procédure :
Le Tribunal arbitral pourra, par ordonnance de procédure, impartir aux parties
to ILS délais pour la production de tous mémoires ou l‘accomplissement de toutes
diligences en cours de procédure. Le calendrier procédural émis en ce jour par le
Tribunal arbitral constitue une telle ordonnance de procédure.
Le Tribunal arbitral pourra également, lorsqu’il l’estime approprié, modifier
toute ordonnance de procédure ou délai qu’il aura précédemment prise ou imparti.
Toutes ordonnances de procédure pourront être signées par le Président du
Tribunal arbitral seul après consultation des co-arbitres.”
XII. Divers :
1. Conciliation
Après consultation des parties, le Tribunal arbitral pourra à tout moment leur
présenter ses vues quant à la résolution du litige et leur proposer de les assister
dans l’élaboration d’un règlement amiable. Au cas où une telle conciliation
échouerait, les parties déclarent renoncer à invoquer les vues présentées par le
Tribunal, l’assistance fournie par celui-ci ou le fait que le Tribunal ait acquis des
informations dans le cadre de la tentative de conciliation, comme fondement d’une
demande en récusation des arbitres ou d’un recours en annulation de la sentence.
2. Renonciation
En signant le présent Acte de mission, les parties s'accordent à soumettre leur
litige à l’arbitrage, en renoncent expressément à soulever toute objection procé¬
durale qu'elles pourraient avoir à l'égard d’évènements connus d’elles à la date
des présentes ou qu 'elles ne pourraient ignorer. Les parties s 'engagent par ailleurs
à notifier immédiatement au Tribunal arbitral toute objection qu’elles pourraient
avoir à l'égard de la procédure d'arbitrage. A défaut, elles seront réputées avoir
renoncé à ces objections.
3. Confidentialité
Les parties s'engagent à préserver une stricte confidentialité du présent
arbitrage et des informations qu’elles obtiendront à cette occasion, dès lors que
ces informations ne relèvent pas déjà du domaine public. Les sentences et ordon¬
nances du Tribunal arbitral demeureront également confidentielles, à moins que
leur divulgation ne soit requise en vertu d’une obligation légale ou pour les besoins
de leur exécution.
4. Secrétariat administratif du Tribunal
Le Président du Tribunal pourra, s’il l'estime approprié, désigner un secrétaire
administratif du Tribunal. En ce cas, les frais occasionnés par cette désignation et
par l 'activité du secrétaire administratif resteront à sa seule charge.
5. TVA (. . .). »
[
I Reprinted from the Clunet 919

£
;i
Dans un premier temps, le tribunal arbitral s’est penché sur la question du droit v
applicable,
L’analyse juridique des arbitres montre que la demande principale était fondée sur
l’obligation de l’acheteur tunisien de payer la dernière tranche du prix de l’équipement.
La demande reconventionnelle de l’acheteur était, quant à elle, basée sur (i) le ■;!
retard dans la mise en marche et la réception des installations causé par l’incapacité 4,
du vendeur de fournir les logiciels de mise en route et de supervision nécessaires au
fonctionnement des machines, (ii) l’incapacité du vendeur de lever les réserves consta¬
tées lors de la réception, et (iii) divers disfonctionnements des installations couverts par
la garantie contractuelle.
Les arbitres, après avoir constaté que le contrat stipulait que « Le présent contrat est régi
par le droit Français en vigueur à la date de signature des présentes », ont continué leur
analyse comme suit :
« Dans leurs Mémoires (. . .), les parties n’ ont fait référence ni au droit français de
la vente, ni aux règles de la Convention de Vienne de 1980 (ci-après « la CVIM »)
applicables en matière de vente internationale de marchandises.
Le Tribunal Arbitral a donc, lors de l’audience ( . .), invité les parties à s’expri¬
mer sur cette question.
.
Dans son mémoire (. .), le [demandeur] estime que la CVIM a vocation à
s ’ appliquer au présent litige, de même que ‘les grands principes du droit' à titre
supplétif.
Dans son mémoire (. . .), le [défendeur] ne se prononce pas clairement sur la
question, estimant que, si 'la vocation de la Convention de Vienne à s 'appliquer au
Contrat ne fait pas de doute dès lors que les parties ont expressément choisi de le
soumettre au droit français'(§(.. .)), cette application serait plus douteuse au
regard de l'article 3.2 de la CVIM dès lors que la notion de part prépondérante
de l’obligation serait prise dans une acceptation non quantitative mais par
référence à l’obligation caractéristique qui'dans les contrats de fourniture d
‘ensembles industriels est la garantie de performance’ (§ (. . .)).
Le [défendeur] soutient en outre que la CVIM ne serait pas applicable à l 'inex¬
écution reprochée au vendeur consistant à ne pas avoir mis en place le logiciel de
supervision, dès lors qu 'il s'agirait 'de prestations de services immatérielles que les
dispositions de la Convention de Vienne relatives à la vente de biens corporels
n'ont pas vocation à régir'. Selon le Défendeur, la CVIM ne couvrirait également
pas les dispositions contractuelles traitant de la supervision, du montage, des
essais de réception, de la mise en marche et de la garantie de performance. En
définitive, selon le Défendeur, la CVIM ne serait applicable qu ‘ata seules obliga¬
tions de fourniture de biens corporels'(...).
Les deux parties s’accordent pour considérer que le renvoi fait par le Contrat à
la loi française est susceptible de désigner la CVIM, cette dernière constituant le
droit français de la vente internationale. Il convient cependant de déterminer si cet
instrument est matériellement applicable dans le cas d’espèce. Les parties sont en
désaccord sur ce point.
(...)»
Après avoir constaté que l’objet de l’obligation du vendeur portait sur la fourniture
d’équipements à fabriquer, ainsi que sur des prestations immatérielles consistant à super¬
viser le montage de ces équipements et à assurer la mise en route du moulin, les arbitres ont
conclu que le contrat était bien un contrat de vente selon la CVIM. Le vendeur fournissait
en effet la totalité des éléments matériels nécessaires à la réalisation de la semoulerie et
de la minoterie. La présomption de l’article 3.1 de la CVIM ne trouvait donc pas à
s’appliquer.
:
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Le Tribunal arbitral a poursuivi ensuite :
II convient cependant de s'interroger sur le point de savoir si, dans le cas d 'espèce,
une part prépondérante de l'obligation du [vendeur] n’est pas représentée par la
fourniture de main-d'œuvre ou de services, auquel cas l'application de la CVIM
serait exclue en vertu de l’article 3.2 de cet instrument.
L' [acquéreur] reconnaît que, d'un point de vue quantitatif, le Contrat ne
correspond pas à l'hypothèse ainsi visée par l’article 3.2 de la CVIM, mais
affirme que cette notion de “part prépondérante" devrait être appréciée par
référence à l’obligation caractéristique du Contrat, qui serait ici la garantie
de performance. Le Tribunal Arbitral ne partage pas le point de vue ainsi avancé
par la Défenderesse.
Les termes employés par la CVIM indiquent en effet que l’article 3.2 de cet
instrument a entendu faire référence à un critère quantitatif, et non qualitatif. Si la
a. notion de “part essentielle" employée à l'article 3.1 laisse en effet la place à une
y .
appréciation aussi bien quantitative que qualitative, l’emploi des mots différents de
“part prépondérante" montre que la CVIM a entendu, à l’article 3.2, renvoyer à
une analyse de la valeur économique respective des prestations matérielles et
immatérielles.
Il n’y a donc pas de place, ici, pour une prise en compte du caractère qualitativement
essentiel de ces dernières (en ce sens, Cour d'appel de Grenoble, 26 avril 1995, Unilex, et
la note Hascher sous la sentence CCI 7153 de 1992, JDI 1992, p. 1009. — cf. également
V. Heuzé, La vente internationale de marchandises, droit uniforme : LGDJ 2000, p. 76. —
F. Ferrari, La vendita internazionale, applicabilità ed applicazioni della Convenzione di
Vienna del 1980 : Cedam, Padotie, 1997, p. 113-114 et la doctrine citée).
Dès lors que V [acquéreur] admet que les prestations matérielles à charge du
[vendeur] sont quantitativement prépondérantes par rapport aux prestations
immatérielles de supervision et de mise en route (. . .), le. Tribunal Arbitral con¬
sidérera que le Contrat ne tombe pas sous le coup de l’exclusion prévue par
l’article 3.2 de la CVIM. »
Arrivé à ce point, le tribunal arbitral devait encore trancher la question de savoir si
l’application de la CVIM devait être totale ou partielle :
« (...) U n’est pas douteux, aux yeux du Tribunal Arbitral, que les obligations de
supervision et de mise en route du [vendeur] ont bien vocation à être régies par la
CVIM. En effet, il résulte nécessairement de l'article 3.2 de la CVIM qu 'un contrat
de vente comportant à la charge du vendeur des obligations de fourniture de main-
d'œuvre ou de services a bien vocation à être régi dans son entièreté par cet
instrument dès lors que ces dernières obligations ne sont pas prépondérantes.
Cette disposition n’aurait aucun sens s'il fallait, dans ce dernier cas, distinguer
entre la nature des prestations. Si la CVIM avait entendu exclure dans tous les cas
de son champ d’application les prestations de main d’œuvre et autres services
accessoires à la fourniture, elle l'aurait précisé. Il en résulte que, lorsque
les fournitures de main-d'œuvre et de services sont accessoires aux fournitures
de marchandises et qu'elles ne représentent pas une part prépondérante de
l'obligation du vendeur, celles-ci sont attraites dans le domaine d’application
de la CVIM (en ce sens, J. Honnold, Uniform Law for International Sales, Kluwer,
1991, p. 107). »
Finalement, sur ce point, le tribunal arbitral s’est interrogé sur l’application de la CVIM
aux logiciels que le vendeur devait livrer et installer. L’obligation de fourniture, qui était à
l’origine une partie importante du différend entre les parties, résultait du descriptif explicit
des éléments à livrer, annexé au contrat. Pour le tribunal arbitral, cette question était

légitime eu égard à la doctrine qui s’accorde à considérer que la CVIM ne régit que les
ventes de biens mobiliers (V. Heuzé, op. cit. p. 78. - Ferrari, op. cit. p. 117) :
«(...) Le Tribunal Arbitral estime cependant que les logiciels doivent, être con¬
sidérés comme des biens mobiliers au sens de la CVIM ('en ce sens, V. Heiaé, op.
—
cit. p. 79. F. Ferrari, op. cit. p. 120). Même si, en l’espèce, les logiciels étaient
spécifiques et devaient être mis au point pour les besoins particuliers du fonction¬
nement des installations, ceux-ci en constituaient en effet des accessoires, aux¬
quelles ils devaient être intégrés. Il n‘existe donc pas de raison de leur appliquer un
régime différent de celui qui régit les autres obligations des parties. En conclusion,
le Tribunal Arbitral estime que le choix de la loi française emporte soumission du
Contrat dans son entier à la CVIM.
Pour les questions non régies par la CVIM, il sera fait application de la loi
française conformément à la volonté contractuelle des parties. »
Le tribunal arbitral a condamné le défendeur au paiement de la demande principale, soit
le solde du prix. Le tribunal a accordé aussi au demandeur des intérêts de retard, non prévus
dans le contrat, ni dans la CVIM, sur la base de l’article 1153 du Code civil français.
Le tribunal arbitral a poursuivi ensuite :
.
« ( .) Le [vendeur] demande encore au Tribunal Arbitral, sans fournir cependant
d’explications sur la justification de cette demande, de condamner ¡[’acquéreur]
au 'paiement de pénalités de retard de Cent Cinquante Euros (150 €.) par jour de
retard dans le règlement à compter d ‘un mois après le rendu de la sentence'.
Le [vendeur] demande ainsi au Tribunal Arbitral d’assortir ¡a condamnation
pécuniaire de 1’[acquéreur] d’une astreinte.
Une telle demande ne peut être accueillie, l’astreinte étant un remède applica¬
ble aux obligations défaire et non aux obligations de paiement, pour lesquelles
l’intérêt de retard joue déjà le rôle d'une pénalité. Elle sera donc rejetée. »
Le tribunal arbitral a condamné ensuite le demandeur à payer divers montants corre¬
spondant aux demandes reconventionnelles du défendeur, dont la perte d’exploitation
causées par les retards, les frais de réparations et remplacements. Le tribunal arbitral a
accordé en outre des intérêts sur les montants alloués à compter de la date de la sentence. Le
tribunal a conclu :
« Tout comme l'a fait le [demandeur], le [défendeur] demande au Tribunal Arbitral
de condamner son adversaire (Mémoire ( . .)) à lui payer une pénalité de 150 €
par jour de retard dans le règlement des sommes dues en vertu de la sentence.
Comme il a été dit (. . .), une telle demande ne peut être accueillie. La con¬
damnation sollicitée constitue en effet une astreinte, mesure de contrainte qui n 'est
pas applicable qu’aux obligations de faire. »
Chacune des parties a demandé que l’autre soit condamnée à prendre en charge la totalité
des frais de l’arbitrage. Les arbitres ont abordé la question dans les termes suivants :
« Il sera rappelé que, conformément au Règlement et à la pratique arbitrale, le
Tribunal Arbitral jouit d’un large pouvoir discrétionnaire dans la répartition des
frais et coûts de l’arbitrage.
En particulier, le Tribunal Arbitral n 'est pas lié par la règle de proportionnalité.
qui veut que ces frais et coûts soient répartis dans une mesure strictement équiv¬
alente à celle dans laquelle les parties se voient accorder satisfaction. Le Tribunal
Arbitral peut en effet déroger à cette règle si cela lui parait raisonnable et appro¬
prié compte tenu de l'ensemble des circonstances de l’affaire.
En l’espèce, même si le [demandeur] se voit accorder la quasi-totalité de sa
demande et le [défendeur] une partie seulement des siennes, le Tribunal Arbitral
estime que le [demandeur] doit supporter la majeure partie des frais de
l’arbitrage.

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Celui-ci a en effet engagé une procédure d’arbitrage alors que le litige trouve sa
source dans sa propre incapacité à mettre au point un élément d'importance fon¬
damentale pour le fonctionnement du moulin (le logiciel de supervision et de mise
en route). Le [demandeur] savait en outre, puisque cette question a été évoquée
entre les parties avant l’arbitrage, qu’elle avait causé au [défendeur] des pertes
d’un montant important. En engageant une procédure arbitrale dans ces condi¬
tions, elle a fait preuve de légèreté et il serait injuste de laisser à la charge du
[défendeur] la totalité des frais et coûts qu’elle a été contrainte d’exposer de ce
fait. Le Tribunal Arbitral dira donc que les frais de l 'arbitrage, d’un montant (. . .)
US$, seront supportés à hauteur de 2/3 par le [demandeur] et d'l/3 par
le [défendeur],
■:a
Le tribunal arbitral a finalement estimé — pour les mêmes raisons - que le
demandeur devait supporter les frais qu’il avait exposés pour sa défense (honoraires
d’avocat et autres frais) ainsi qu’une partie des frais exposés par le défendeur.
NOTE. — —I. L’acte de mission, ou « l’acte déterminant la mission de l’arbitre »
J. Arnaldez, Etudes offertes à Pierre Bellet : LexisNexis Litec 1991, p. 1) est un document
de grande importance dans l’arbitrage CCI même si les commentaires à son sujet sont
plutôt rares dans cette chronique (V. D. Hascher, ancien Conseiller général de la Cour qui
a commenté deux affaires CCI, à savoir l’affaire n° 7170: JDI 1993, p. 1062 et l'affaire
n° 5082 : JDI 1995, p. 1041. — plus généralement, V. Bühler/Webster, Handbook of ICC
— —
Arbitration, 2nd edn, Thomson/Sweet&Maxwell 2008, § 18-1, p. 257 et Part II Models,
Precedents and Examples, Document 15 « Terms of Reference », p. 570. S. Lazareff
L’acte de mission: Bull. CCI 2006, vol. 17, n° 1, p. 22. — P. Sanders, The Terms of
Reference in ICC Arbitration in Liber Amicorum in honour of Robert Briner: ICC 2005, p.
693. — Lazareff/Schafer, Mise à jour du Guide pratique de l 'usage de l 'acte de mission ed
1992 : Bull. CCI 1999, vol. 10, n° 2, p. 14. — ICC Commission report, « L 'acte de mission
selon le règlement d’arbitrage de la CCI de 1998: un guide pratique à son usage »: Bull.
CCI 1992, vol. 3, n° 1, p. 24).
Dans la mesure où l’article 18 du Règlement d’arbitrage CCI (version 1998) définit un
certain nombre de mentions qui doivent figurer dans l’acte de mission, sans proposer pour
autant un modèle, il nous a semblé utile de produire certains extraits dans cette chronique
pour illustrer l’exemple d’un acte de mission typique, y compris les stipulations sur les
règles de procédure.
L’article VII de l’acte de mission dans le cas d’espèce concerne le lieu de l’arbitrage.
Cette mention du lieu est obligatoire dans l’acte de mission en application de l’article
18(1) ¿1 du Règlement CCI 1998.
L’article Vil de l’acte de mission mentionne également le pouvoir des arbitres de tenir
des audiences et de se réunir pour délibérer ailleurs. Cette disposition n’est pas strictement
nécessaire car l’article 14(2) du Règlement CCI 1998 indique en effet que le tribunal
arbitral peut tenir des audiences et des réunions en tout autre endroit qu ’il estime opportun.
L’intérêt d’inclure de telles stipulations dans l’article VII tient, à notre avis, à deux
raisons: premièrement, les arbitres n’auront pas à demander l’avis des parties chaque fois
qu’ils estimeraient opportun d’organiser des audiences ou de se réunir ailleurs.
Deuxièmement, les arbitres attirent l’attention des parties sur l’intérêt d’utiliser des moyens
de communication modernes, « par moyen d’audio ou de visioconférence ». Dans notre
expérience, les conférences audio et visio sont, dans la pratique actuelle, plutôt limitées au
stade préparatoire de l’affaire et l’audience principale pour entendre les témoins et les
plaidoiries des avocats se fait toujours avec la présence physique de tous les acteurs
(arbitres, avocats, témoins, experts, interprètes et sténographes),
L’article VIII de l’acte de mission mentionne le droit applicable en reproduisant la
stipulation, concernée du contrat. Cette mention n’est pas strictement obligatoire.

L’article 18(1) g) du Règlement CCI 1998 ne demande que des précisions sur les règles
applicables à la procédure et non au fond. Celles-ci sont d’ailleurs traitées à l’article 17 du
Règlement CCI 1998.
L’article IX de l’acte de mission dans l’affaire commentée est libellé « Questions
litigieuses ».
Dans cet article, les arbitres traitent de plusieurs sujets, lesquelles ne sont pas obliga¬
toires mais peuvent être néanmoins utiles.
Dans le premier alinéa, le tribunal rappelle l’existence de l’article 19 du Règlement CCI
1998 qui limite la possibilité des parties de formuler des demandes nouvelles après la
signature de l’acte de mission.
Dans le deuxième alinéa, lesarbitres précisent qu’ils statueront en une ou plusieurs
sentences et dans l’ordre qu’ils estimeront le plus approprié. Que les arbitres puissent
rendre plusieurs sentences est prévu dans le Règlement CCI 1998 (art. 2 (Ut)). L’article
24 indique que la sentence finale doit être rendue dans un délai de six mois à partir de l’acte
de mission, mais il ne précise pas par contre le délai pour rendre des sentences intérimaires
ou partielles.
Dans le troisième alinéa, on peut noter que les arbitres n’ont pas estimé opportun
d’établir une liste dès points litigieux à résoudre. Ce faisant, ils se sont appuyés sur l’article
18(1) d) du Règlement CCI 1998 qui fait de la liste des points litigieux une simple faculté.
En pratique, on peut noter que les arbitres dressent une liste des points litigieux dans la
majorité des arbitrages CCI, dans le but de mieux préparer les parties dans la présentation
de leurs arguments.
L’article X de l’acte de mission résume la procédure de nomination des arbitres et se
termine avec deux déclarations. D’une part, les arbitres acceptent leur mission conformé¬
ment au Règlement CCI 1998, et d’autre part, les parties déclarent n’avoir aucune objection
à faire valoir à l’égard de la constitution du tribunal arbitral. Ces deux déclarations sont
importantes au vu des conséquences qu’elles font naître.
S’agissante des arbitres, en acceptant leur mission, ils s’engagent à l’accomplir jusqu’à
son terme (V. Régi. CCI 1998. art. 7(5)). Ils ne peuvent pas démissionner sans l’acceptation
de la Cour (V. Régi, art. 12(1)) et doivent accepter qu’elle puisse les remplacer pour
différentes raisons (V. Régi. CCI 1998, art. 11(3) et 12(1) et (2)). Ils sont obligés à rendre
en principe la sentence finale dans un délai de six mois (V. Régi. CCI 1998, art. 24).
Quant aux parties, en acceptant la constitution du tribunal arbitral dans l’acte de mission,
elles renoncent à faire objection à cet égard ultérieurement (V. Régi CCI 1998, art. 33).
L’article XI de l’acte de mission sur les « Règles de procédure » est divisé en plusieurs
sections.
Dans une section I, on notera la référence aux Rules on the taking of evidence in
International Arbitration de l 'International Bar Association (« IBA »). Celle-ci est très
fréquente dans la pratique actuelle, car plus qu’une obligation, c’est une possibilité laissée
aux arbitres de prendre en compte ces règles dont l’application domine, non seulement dans
les arbitrages CCI, mais aussi dans les arbitrages soumis à d’autres règlements d’arbitrage
ou des arbitrages ad hoc. Les arbitres peuvent ainsi’s ‘inspirer’ de ces règles, notamment en
matière de preuves. Le Règlement CCI étant muet sur ce point, les Rules on evidence de
Y IBA jouent un rôle important dans la pratique arbitrale d’autant plus qu’elles ont été
élaborées par des avocats internationaux qui viennent de milieux juridiques variés et
différents du monde entier.
À la fin de la section 1, les parties s’obligent à collaborer loyalement et complètement à
la procédure. On peut se poser la question de savoir quelle est l’utilité d’une telle déclara¬
tion, sauf pour les parties à montrer leur bonne volonté au début de la procédure ? A quoi
s’engagent-elles vraiment? Comme on le verra plus loin, cet engagement prend toute sa
924 Reprinted from the Cluaet

r--v— -r - ::
- --:-_-ÿTÍ
signification au moment où les arbitres liquident les frais de l’arbitrage et décident dans
quelles proportions les parties doivent supporter ces frais de l’arbitrage. Ils disposent à cet
effet de pouvoirs importants pour sanctionner les mauvais comportements des parties
(V. Régi. CCI 1998, art. 31(3)).
L’article XI, section 2 de l’acte de mission traite ensuite, de manière tout à fait classique,
de la question de la langue de la procédure et les frais d’interprétation et/ou de traduction.
L’intérêt d’indiquer que ces frais seront inclus dans les frais de l’arbitrage réside dans le fait
que le tribunal arbitral va décider qui, entre les parties, va les supporter en fin de compte. Il
est nécessaire de préciser dans l’acte de mission que ces frais font partie des frais de
l’arbitrage car l’article 31(1) du Règlement CCI 1998, qui traite des frais de l’arbitrage,
tout en énumérant divers frais, n’indique rien en ce qui concerne les frais de traduction et
d’interprétation.
L’article XI, section 4 de l’acte de mission sur la « Forme des notifications et commu¬
nications », est très courant aujourd’hui. Il fait primer l’électronique comme moyen de
communication et réserve la notification des documents concernant le fond du dossier, tels
que les conclusions et ses annexes, les témoignages et les rapports d’experts, par porteur,
lettre recommandée ou coursier international. De cette manière, l’organisation du planning
i-.; et de l’administration de la procédure se fait par courriel uniquement. Certains arbitres
préfèrent d’ailleurs aujourd’hui recevoir tous les documents, sans exception, par courriel
afin de les intégrer dans le mémoire de leurs ordinateurs portables qu’ils amènent à l’audi¬
ence. L’expression trave/ light retrouve ainsi tout son vrai sens.
L’article XI, section 6 de l’acte de mission concerne les « mesures conservatoires et
provisoires ». Le texte ne fait que rappeler le contenu de l’article 23 du Règlement et
n’ajoute rien de nouveau.
L’article XI, section 7 de l’acte de mission sur les ordonnances de procédure, est une
prolongation des pouvoirs accordés aux arbitres par l’article 20 du Règlement CCI 1998
(instruction de la cause). Rappelons que les ordonnances de procédure ont un caractère
administratif et ne sont pas, contrairement aux sentences arbitrales, ni contraignantes, ni
exécutoires. Les arbitres peuvent donc les modifier à tout moment (V. S. Jarvin, Les
décisions de procédure des arbitres peuvent-elles faire l’objet d’un recours juridiction¬
nel ?: Rev. arb. 1998, p. 611).
L’article XII de l’acte de mission porte sur la rubrique « Divers » qui est divisée en
plusieurs sections.
La section 1 concerne une éventuelle conciliation entre les parties. Cette clause, selon
laquelle les arbitres peuvent à tout moment présenter leurs vues aux parties quant à la
résolution du litige, est plutôt rare, voire pas encore courante ou typique dans arbitrage CCI.
Il est à noter que la clause figure dans une procédure d’arbitrage entre parties européennes
et africaines, deux parties dont les familles de droit appartiennent à la sphère du droit civil.
Nous pensons qu’une telle clause serait plus rare dans les procédures d’arbitrage entre deux
parties originaires des pays de common law. Toutefois, le monde est en marche et la stricte
distinction entre médiation et conciliation, d’une part, et arbitrage, d’autre part, est peut-
être en train de disparaître ou de se réduire (V. J. Almoguera, Arbitration and mediation
combined ; the independence and impartiality of arbitrators in Liber amicorum Bernardo
Cremades, La Ley, Madrid, 2010, p.101 et seq.).
La section 2 est une variation sur le thème de l’article 33 du Règlement CCI 1998 qui
porte sur la renonciation au droit de faire objection.
La section 3 sur la « Confidentialité » est une stipulation désormais courante dans
l’arbitrage CCI. L’article 20(7) du Règlement CCI 1998 prévoit d’ailleurs la possibilité
pour le tribunal arbitral de prendre toute mesure pour protéger les secrets d’affaires et les
informations confidentielles. Dans le cas d’espèce, l’obligation est renforcée par le fait que
les parties ont signé l’acte de mission. L’engagement devient contractuel en plus du fait

i
qu’il peut être ordonné par les arbitres (V. plus généralement, 1. Smeureanu, Confidentiality
in International Commercial Arbitration : Kluwer 2011)
La section 4 concerne finalement le secrétaire administratif du tribunal arbitral, qui est
un exemple du genre. La question de savoir si le tribunal arbitral doit avoir un secrétaire est
une question sensible à laquelle la Cour de la CCI a donné des lignes directrices dans une
note en date du 1er octobre 1995.
En effet, la nomination d’un secrétaire administratif ne doit pas conduire à une aug¬
mentation des frais de l’arbitrage. Comme il assume certaines tâches administratives pour
soulager les membres du tribunal arbitral, les arbitres doivent théoriquement supporter ses
coûts (dépenses et honoraires) sur leurs propres honoraires. C’est l’exemple suivi par le
président du tribunal arbitral dans cette affaire, contrairement à une certaine pratique
constatée.
Comme expliqué ci-avant, les fonctions d'un secrétaire doivent être clairement définies
et limitées à des tâches purement administratives. Il/elle ne doit en aucun cas devenir un
deuxième ou quatrième arbitre (selon le nombre d’arbitres dont est composé le tribunal
arbitral) choisi, non pas par les parties, mais par les arbitres. Confier la rédaction de la
sentence au secrétaire administratif
pratique — — ce qui arrive parfois malheureusement dans la
est contraire à l’idée de base que seuls les arbitres tranchent les questions à
résoudre et rédigent le résultat de leurs délibérations (V. plus généralement Th. Clay, Le
secrétaire administratif : Rev. arb. 2005, p. 931. — C. Partasides, The Fourth Arbitrator ?
The role of Secretaries to Tribunals in International Arbitration: Arb. Int. 2002, vol. 18, n°
2,p. 147).
II.— C’est sans hésitation que l’on se ralliera à la conclusion du tribunal arbitral que
«... le renvoi fait par le Contrat à la loi française est susceptible de désigner la CVIM,
cette dernière constituant le droit français de la vente internationale ».
Cette solution est conforme à l’article 1er (1) (b) de la CVIM (dans un même sens,
V. l’affaire CCI n° 6653 : JDI 1993, p. 1040 où le droit français était choisi par les parties
dans un contrat de vente internationale : « Le droit français de la vente est constitué par les
articles 1582 et suivants du Code civil mais, depuis le 1“janvier 1988, le droit français de la
vente internationale est constitué par la Convention des Nations Unies sur les contrats
de vente internationale de marchandises, dite Convention de Vienne du 11 avril 1980. ».
— V. également dans le même sens, l'affaire CCI n° 8324 : JDI 1996, p. 1019 (droit
français), obs. D. Hascher et l’affaire CCI n° 8855 : JDI 2000, p. 1070 (droit autrichien),
obs. J.-J. Amaldez).
C’est aussi la solution préconisée dans la doctrine (V. J. Lookofsky, Understanding the
CISG, 3rd edn. : Wolters Kluwer, DJ0F Publishing, 2008, p. 15. — Schlechtriem,
Kommentar zum Einheitlichen UN-Kaufrecht, Verlag C. H. Beck, München 2000, p. 54,
Rn 10, avec, à la page 71, de multiples références aux sentences arbitrales).
Mais la question du droit applicable ne s’arrête pas là. Ayant écarté l’écueil de l’article
3(1) de la CVIM
n’était pas le cas
—— l’acheteur fournit une part essentielle des éléments matériels, ce qui
le tribunal arbitral devait déterminer si éventuellement les services
immatériels rendus par le vendeur constituaient la « part prépondérante » de son obligation
(article 3(2) de la CVIM). Dans l’affirmative, la CVIM ne s’appliquerait pas, les auteurs de
la CVIM ayant estimé qu ’un tel contrat n’était pas un contrat de vente. Dans le cas contra¬
ire, la CVIM s’appliquerait, mais il aurait fallu encore déterminer si elle s’appliquait à la
totalité des prestations du vendeur, c’est-à-dire non seulement la fourniture des équipe¬
ments mais aussi la prestation des services tels que la supervision du montage et la mise en
route des installations.
Comme observé à propos de l’article 3(2) dans l’afiàire CCI n° 7153 à laquelle les
arbitres ont fait référence, « la frontière peut s’avérer difficile à tracer, la notion (. . .)
1
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part prépondérante dont dépend ou non l’application de la Convention étant laissée à
l’appréciation de l 'interprète ». Dans le cas d’espèce, le tribunal arbitral a analysé l’emploi
des mots dans l’article 3(1) et 3(2) de la CVIM respectivement pour conclure qu’il faut
opérer une distinction entre les termes « part essentielle » employés dans l’article 3(1) et «
part prépondérante » employés dans l’article 3(2). Selon le tribunal arbitral, le critère de
l’article 3(1) est d’ordre qualitatif tandis qu’il est purement d’ordre quantitatif ou écono¬
mique' dans l’article 3(2). Comme l’acquéreur a admis que la valeur des équipements était
supérieure à celle des prestations immatérielles de supervision et de mise en route, les
arbitres n’étaient pas obligés de pousser leur examen plus loin.
Les arbitres ont ensuite conclu que la CVIM devait s’appliquer à la totalité des presta¬
tions du vendeur, y compris les prestations immatérielles (V. en ce sens, P. Schlechtriem,
Kommentar zum Einheitlichen UN-Kaufrecht : 3. Auflage, 2000, p. 89 : « Fâllt der
Si
Liefervertrag mit arbeits — oder dienstvertraglichen Pflichten nicht unter die vom
Übereinkommen ex. Art. 3 II ausgeschlossenen Vertrâge, so ist das Übereinkommen im
Grande auf den gesamten Vertrag anwendbar. »).
La conclusion des arbitres que le logiciel fourni par le vendeur est un bien mobilier au
sens de la CVIM est également partagée dans la doctrine (en plus des références citées dans
la sentence arbitrale, V. J. Lookofsky, Understanding the CISG, 3rd ed.,préc.,p. 19etseq. :
« an international sale of a computer program should be regarded as a CISG sale of goods »,
avec de multiples références à la jurisprudence dans CLOUT et nord-américaine).
IV. — Le demandeur a requis du tribunal arbitral qu’il condamne « l’[acquéreur] au
paiement de pénalités de retard de cent cinquante euros (150 €) par jour de retard dans le
règlement à compter d’un mois après le rendu de la sentence ».
Le tribunal arejeté cette demande, de la même manière qu’il a décidé pour une demande
identique de défendeur. Il a refusé de condamner l’autre partie à payer des pénalités de
retard en considérant qu’« [u]ne telle demande ne peut être accueillie, l’astreinte étant un
remède applicable aux obligations de faire et non aux obligations de paiement ».
En rejetant les demandes des parties d’ assortir la condamnation pécuniaire d’une astreinte,
les arbitres n’indiquent pas en vertu de quelle règle de droit ils le font. Souvenons-nous que
les arbitres avaient décidé en ce qui concerne le droit applicable que « [p]our les questions
non régies par la CVIM, il sera fait application de la loi française conformément à la volonté
contractuelle des parties ». Comme la CVIM ne comprend pas de règles sur la procédure
arbitrale ou sur les pouvoirs des arbitres, on doit conclure que c’est en vertu d’une application
du droit français que les arbitres ont décidé de ne pas accueillir les demandes des parties. Il
faut donc rechercher la réponse en droit fiançais. Le pouvoir d’ordonner des astreintes
relèverait-il ou pas de la compétence des arbitres siégeant en France?
Selon le Professeur Charles JaiTosson, « [1]’astreinte, au vue de l’abondance de la
littérature qu’elle a suscitée, semble bien avoir plongé les juristes dans un abîme de per¬
plexité et ce, depuis des temps immémoriaux ». L’astreinte serait donc un moyen de
pression, comme une contrainte indirecte, qui se situe à la jonction entre l’imperium
merum et la jurisdictio. Comme l’injonction, elle est une mesure de police juridique qui
assure une meilleure efficacité au pouvoir juridictionnel du juge. L’arbitre pourrait recourir
.
à l’astreinte (op. cit.p. 273, § 68) d’autantplus qu’un examen de lajurispradence de la cour
d’appel de Paris montre qu’elle ne semble pas hostile à un tel pouvoir (V. Ch. Jarrosson,
Réflexion sur l’imperium in Études offertes à Pierre Bellet, op. cit.p. 271. — V. également
Poudret/Besson, Droit comparé de l'arbitrage international ; Bruylant, LGDJ, Schulthess
2002, § 540 qui estiment que la compétence des arbitres pour ordonner des astreintes est
une question controversée. Selon ces derniers, l’arbitre international siégeant en Suisse n’a
pas le pouvoir de prononcer une astreinte sauf accord des parties ou si la loi applicable au
fond le permet. « Dans ce dernier cas, l’astreinte peut uniquement renforcer la condamna¬
tion principale, dont l’astreinte est l’accessoire, et non une ordonnance de procédure »).

Dans l’affaire Sté Otor Participations d Sté Carlyle Holdings, la cour d’appel de Paris a
statué en indiquant que « le prononcé d’astreintes (. . .) constitue un prolongement inhérent
et nécessaire à la fonction du juger pour assurer une meilleure efficacité au pouvoir jur¬
idictionnel et ne caractérise ainsi aucun dépassement de la mission de l’arbitre » (V.
CA Paris, lre ch. C, 7 oct. 2004 : Rev. arb. 2005, p. 735, obs. E. Jeuland). Dans son
commentaire, le professeur Jeuland a répertorié la jurisprudence des cours d’appel français
qui ont adopté cette position depuis 1984 (p. 744) et fait le tour en droit comparé dans divers
pays pour conclure à l’existence d’une certaine disparité (pays favorables : Pays-Bas,
Belgique ; pays ayant des systèmes plus ou moins équivalents au droit français : les
pays de common law, Allemagne, Autriche, Portugal et les pays de l’Amérique du sud ;
pays hésitant : Suisse ; pays défavorable : Suède).
En conclusion, en France et à la date où la sentence a été rendue, il est admis que le
tribunal arbitral a le pouvoir de prononcer des astreintes. Le langage choisi par les arbitres,
« ne peut être accueillie », laisse d’ailleurs penser que la demande des parties ne posait pas
vraiment de problème au niveau de leur compétence. La demande était recevable. Par
contre, le vrai problème est de savoir si les arbitres ne voulaient pas ajouter une obligation
supplémentaire au défendeur, ayant considéré que « l’intérêt de retard joue déjà le rôle
d’une pénalité »? Au vu de la situation, on peut regretter qu’ils n’aient pas davantage
développé leur raisonnement avant de rejeter la demande d’astreinte.
Paris étant le lieu de l’arbitrage, la question de la compétence des arbitres est
dorénavant réglée par le nouveau décret français de l’arbitrage du 13 janvier 2011
(«° 2011-48). Selon les articles 1468 et 1506 du Code de procédure civile français
applicables dans un arbitrage international en France, le tribunal arbitral peut, à peine
d’astreinte, ordonner des mesures conservatoires et provisoires qu’il juge opportun. S’il
lui est possible de prononcer de telles mesures dans le cadre de mesures conservatoires,
on peut penser raisonnablement que le tribunal arbitral pourrait aussi ordonner des
astreintes en ce qui concerne l’exécution de la sentence qu 'U va rendre sur le fond.
Par contre, la question se pose de savoir dans quelles mesures il pourrait liquider
l’astreinte prononcée, étant dessaisi ex officio du dossier une fois la sentence rendue. La
question relèverait probablement de la compétence du juge de l’exécution.
V.
— Le thème de la répartition des frais de l’arbitrage revient régulièrement, presque
chaque année, dans la présente chronique.
Les arbitres dans l’affaire en cause rappellent que « conformément au Règlement et à la
pratique arbitrale, le Tribunal arbitral jouit d’un large pouvoir discrétionnaire dans la
répartition des frais et coûts de l’arbitrage ». Cette affirmation est répétée par la plupart
des arbitres CCI qui bénéficient effectivement de la plus grande liberté pour décider sur la
répartition des coûts de l’arbitrage.
Cette règle est connue et n’appelle pas de commentaires particuliers, sauf à noter que le
tribunal arbitral a souligné le fait qu’il « n’est pas lié par la règle de proportionnalité, qui
veut que ces frais et coûts soient répartis dans une mesure strictement équivalente à celle
dans laquelle les parties se voient accorder satisfaction. Le Tribunal arbitral peut en
effet déroger à cette règle si cela lui paraît raisonnable et approprié compte tenu de
l’ensemble des circonstances de l’afïàire ».
Comme beaucoup d’autres tribunaux arbitraux, ce tribunal ne s’est pas référé à une règle
de droit national quelconque pour aborder la question de la répartition des frais et coûts. La
source de son pouvoir dans ce domaine découle en fait du Règlement CCI et non d’un droit
national (V. l'affaire n° 8486 : JDI 1998, p. 1097, obs. Y. Derains).
Qu’en est-il toutefois de la « règle de proportionnalité » mentionnée par le tribunal
arbitral ?
Plusieurs tendances existent dans la doctrine internationale parmi lesquelles les
suivantes.

-i
1
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61

Beaucoup de praticiens, dont MM. G. Horvath ou M. L. Smith considèrent que cette
règle existe (V. G. Horvath, Guerilla tactics in arbitration, en ethical battle : Is there a
need for a universal code of ethics ?: Austrian Yearbook on International Arbitration 201 1,
CH Beck, Stampfli, Manz, 2011, p. 310 : . most countries apply the principle that costs
follow the event ». — M. L. Smith, Costs in international commercial arbitration in AAA
Handbook on international arbitration practice, AAA, ICDR, Juris, New York, 2010,
p. 313-318 : « The general principle is that costs should follow the event »).
D’autres partagent moins cet avis, parmi lesquels M. J. Y. Gotanda {Attorney's fees
agonises : the implications of inconsistency in the awarding of fees and costs in
international arbitrations in Liber amicorum Bernardo Cremades, op. cit. p. 546 : « con¬
ventional wisdom holds that in international arbitrations, tribunals follow the “cost follow
the event” approach in accordance with the practice of most countries. Unfortunately, there
'4 exists very little empirical data on the subject. A few limited studies have found that the
■T conventional wisdom may not be true, and recent decisions seem to indicate that awards of
* costs and fees are often arbitrary and unpredictable »).
Qu’en est-il des sentences arbitrales CCI récentes ?
Dans l’affaire CCI n° 8486 ( JDI 1998, p. 1047 ; Recueil des sentences arbitrales de la
CCI, vol. 4, p. 321), les arbitres ont considéré que « la partie gagnante devra être rembour-
sée de ses frais. C’est, après tout, la partie perdante qui a occasionné les coûts soit en
déposant une demande d’arbitrage injustifiée, soit en la contestant de façon injustifiée ».
Dans l’affaire CCI n° 10671 {JDI 2005, p. 1269, obs. E. Silva-Romero), les arbitres ont
indiqué que c’est l’usage que le tribunal arbitral mette à la charge de la défenderesse qui
succombe les frais de la procédure.
Dans l’affaire CCI n° 10982 {JDI 2005, p. 1256, obs. Y. et B. Derains), les arbitres ont
mentionné qu’il « est généralement admis que la partie qui succombe au fond supporte
l’intégralité ou une partie importante des frais de l’arbitrage. Une règle équivalente s’appli¬
que aux frais et honoraires raisonnables exposés par les parties pour leur défense ».
Dans l’affaire CCI n° 11426 {JDI 2006, p. 1443, obs. E. Silva-Romero), les arbitres ont
souligné « qu’il est en général justifié de tenir compte dans le cadre de la décision sur les frais,
surtout du résultat de la procédure, c’est-à-dire du degré de réussite de chaque partie ... ».
Dans l’affaire CCI n° 11776 {JDI 2006, p. 1460, obs. Y. Derains), le tribunal arbitral a
relevé que « le principe de bonne justice veut que la partie qui succombe supporte les frais
de 1’ arbitrage, du moins dans la proportion où la sentence donne raison à la partie adverse ».
Dans l’affaire CCI n° 12167 {JDI 2007, p. 1270, obs. S. Jarvin et C. Nguyen), l’arbitre
a mentionné la « règle d’après laquelle les dépenses doivent être supportées par la partie qui
——
succombe ». dans le même sens, V. affaire CCI n” 12551: JDI 2007, p. 13Ô1, obs.
B. Derains. affaire CCI n° 12855: JDI 2009, p. 1393, obs. S. Jarvin et C. Nguyen où le
tribunal a fait dépendre la répartition des frais de l’issue du litige.
Les exceptions à cette approche sont toutefois nombreuses.
Parmi l’une des exceptions les plus courantes, c’est la prise en compte de l’attitude ou du
comportement des parties durant, ou avant, la procédure d’arbitrage.
C’est ainsi le cas dans l’espèce commentée, mais aussi dans l’affaire CCI n° 10982 {JDI
2005, p. 1256, obs. Y. et B. Derains) où le gagnant portait une part de responsabilité dans la
genèse du litige et devait supporter en conséquence 25 % des frais d’arbitrage, y compris
ses propres frais d’avocat.
Dans l’affaire CCI n° 11670 (ASA Bulletin 2004, p. 333), les arbitres ont tenu compte des
« reckless or abusive requests or delaying tactics » (V. dans le même sens, les affaires CCI
«° 12551 : JDI 2007, p. 1301 et n° 13387 : JDI 2010, p. 1427, obs. B. Derains). Dans
l’affaire CCI n° 13209 {rapporté par S. Wilske dans SchiedsVZ — Zeitschrift fur
Schiedsverfahren, 2006, p. 188), les arbitres ont réduit les frais de la partie gagnante
qui avait insisté sur le présence personnelle à l’audience d’un témoin qui aurait pu être
ï Reprinted from the Clunet 929

:
examiné à moindre frais. Le témoin a dû prendre l’avion de Berlin à Istanbul pour un

examen sans intérêt pour le litige de 15 minutes. Les arbitres ont ainsi condamné le
comportement de la partie gagnante : « Procedural rights shall not be used abusively or
exercised unreasonably ».
Dans une autre affaire CCI n° 7986 {JD12002,p. 1071, obs. Y Derains), les arbitres ont
invoqué leur pouvoir d’amiable compositeur et laissé chacune des parties supporter leurs
propres frais d’avocat. Ils ont condamné les parties à partager les frais CCI et les honoraires
des arbitres (souvent dénommés les « frais d’arbitrage »).
Dans l’affaire CCI n° 1 1426 {JDI 2006, p. 1443, obs. E. Silva-Romero), les arbitres ont
tenu compte, outre la réussite des parties, de la difficulté de la question principale de
l’affaire, du fait que les positions des deux parties sur cette question étaient défendables,
de leur bonne foi et de la prestation de leurs avocats. De la même manière, dans l’affaire
CCI n° 1776 {JDI 2006, p. 1460, obs. Y. Derains), les arbitres ont tenu compte de la
complexité de l’objet du litige et de la bonne foi des défendeurs (qui ont perdu) pour
limiter leur condamnation à trois quarts des frais de l’arbitrage.
Dans l’affaire CCI n° 12167 {JDI 2007, p. 1270, obs. S. Jarvin et C. Nguyen), l’arbitre
ayant rejeté les demandes des deux parties, on pouvait s’attendre raisonnablement à ce qu’il
condamne les deux parties à supporter par moitié les frais de l’arbitrage. L’arbitre
a comparé l’importance respective des demandes principale et reconventionnelle pour
conclure que la demande principale « pesait » plus que la demande reconventionnelle.
Il a fait alors supporter au demandeur 75 % des frais de l’arbitrage.
Une variation a été apportée sur ce thème dans l’affaire CCI n° 12305 {JDI 2009,
p. 1356, obs. F. Mantilla Serrano). Le tribunal arbitral n’a pas raisonné en termes de
valeurs des prétentions respectives des parties mais sur la base des manquements
contractuels constatés.
Dans l’affaire CCI n° 12827 (JDI 2009, p. 1376, obs. E. Silva-Romero), l’arbitre a
procédé à une hiérarchisation des fautes des deux parties et les a condamnées supporter
respectivement deux tiers et un tiers des frais de l'arbitrage.
En conclusion, nous sommes d’avis - sans parler d’une pratique homogène ou d’un
usage (en ce sens, V. E. Jolivet et L. Marquis, Les frais de l’arbitrage, Chronique de
jurisprudence arbitrale de la Chambre de commerce internationale : Les cahiers de
l’arbitrage n° 2009/4, Gaz. Pal. 13-15 déc. 2009, «° 347 à 349, p. 15 et s.)
—
philosophie selon laquelle la partie gagnante devrait être remboursée (i) des honoraires
que la
d’avocat et autres coûts pour sa défense, (ii) des frais administratifs CCI et (iii) des honor¬
aires des arbitres, à savoir la « règle de proportionnalité », est une philosophie répandue
parmi les arbitres CCI, probablement la plus répandue. Certes, des exceptions à cette règle
ont pu être identifiées dans cette chronique. Celle-ci a été modifiée par les arbitres pour
différents motifs tenant aux circonstances de l’affaire en cause. C’est le cas notamment du
comportement des parties, de la difficulté de la question principale de l’affaire, de la bonne
foi des deux parties, de la valeur des prétentions respectives ou du manquement contractuel
constaté. Plus que de nouvelles règles, il s’agit plutôt d’exceptions à notre avis.
Ceci étant dit, on gagnerait en terme de prévisibilité sur la répartition des frais dans
l’arbitrage CCI si les arbitres adoptent systématiquement une approche de base, avec
cas échéant - des exceptions limitées. Plus de prévisibilité au niveau des principes pour
— le
calculer les frais, qui sont importants dans l ’arbitrage international, ne peut que faciliter les
transactions commerciales.
S. J.

■y-
_ :
Sentence arbitrale rendue dans l’affaire n° 14359 en 2007 (original en langue

française)
I. Contrat de distribution. —
Droit français. —
Application de la
Convention de Vienne de 1 980 sur la vente internationale de marchandises (non).
IL — Résiliation. — Clause de minimum d’achat.
III. — Force majeure. — Difficulté douanière (non).
IV.
— Renonciation. — Tolérance d’un manquement contractuel (non).
P V. —
Rupture brutale. —
Article L. 442-6, 5° du Code de commerce.
Absence de dommage spécifique.
—
-,
Un arbitre unique siégeant à Paris tranche un litige portant sur les conditions et con¬
séquences de la rupture par le fabriquant d'un contrat de distribution exclusive, par
application du droit français et notamment au regard de l'article 426-6-5° du Code de
commerce. Tout en jugeant que la résiliation était contractuellement justifiée par l’inca¬
pacité du distributeur à atteindre le minimum garanti contractuel, il n 'écarte pas la pos¬
sibilité que la rupture soit brutale au sens de cette disposition mais ne tranche pas la
question au motif que cette brutalité, serait-elle établie, n 'a entraîné aucun dommage
spécifique.
Le contrat avait été conclu entre une société française (le fabriquant) et une société
marocaine (le distributeur), pour une durée initiale d’un an au terme de laquelle il serait
reconduit tacitement sauf notification par l’une des parties de son intention contraire, trois
mois avant son échéance (art. 17.1). Par ailleurs, le fabriquant avait la faculté, en cas de
non-respect par le distributeur du minimum d’achat annuel contractuel de décider, dans les
trois mois suivant la fin de l’année contractuelle, soit de réduire le territoire ou l’éventail
des produits distribués, soit de supprimer l’exclusivité, soit de résilier le contrat par lettre
recommandée avec un préavis de trois mois. Deux mois et vingt jours après la première
échéance annuelle, et un mois après un changement de direction générale, le fabriquant,
usant de cette faculté, a résilié le contrat. Le distributeur contestait cette décision au motif
que le contrat avait été renouvelé par tacite reconduction et que les parties étaient con¬
venues d’écarter la clause sur le quota pour la première armée.
L’Arbitre unique s’interroge en premier lieu sur le droit applicable dans les termes
suivants :
« Il n'y a pas lieu d’appliquer la Convention des Nations Unies sur les contrats de
vente internationale de marchandises du 11 avril 1980 (« Convention de Vienne »)
au présent litige. Bien qu 'elle fasse partie du droit matériel français, auquel
¡'article 23, 1er alinéa du Contrat se réfère, le Contrat, étant un contrat de distri¬
bution, ne tombe pas dans le périmètre d'application de l’article 1, 1er alinéa de la
Convention de Vienne (voir Uncitral Digest of Case Law on the UN Convention on
the International Sale of Goods, http://www.cisg.law.pace.edu/cisg/text/digest-
art-01.html, Art. 1(3); OLG Düsseldorf, 11 juillet 1996, case law on Uncitral
text (Clout) n° 169 ; Metropolitan Court Hungary, 19 mars 1996, Clout, Abstract
n° 126 ; Hof Amsterdam, 16 juillet 1992, http://www.cisgw3.law.pace.edu/cases/
920716ul.html ;US Federal Court, State District court, Eastern District of Penn¬
sylvania, 29 août 2000, http://cisgw3.law.pace.edu/cases/00829ul.html). Le sujet
du litige n 'est pas les contrats de vente compris dans le cadre du Contrat, mais la
rupture du Contrat. Les parties ont évoqué, en demande et en défense, les
Reprinted from the dune t 931

dispositions de l’article 442-6(5) du Code de Commerce français. Ceci ne signifie

pas qu’elles ont - tacitement - exclu l’application de la Convention de Vienne,
mais simplement que les questions centrales du litige se situent en dehors de son
périmètre d’application ».
Se tournant ensuite vers la demande de dommages-intérêts présentée par la demander¬
esse, l’Arbitre unique affirme qu’« il y a lieu d’examiner, dans l’ordre suivant, si la rupture
du Contrat du. . . est nulle (1.), si elle est conforme au Contrat (2.), si malgré une con¬
formité au Contrat, elle revêt d’un caractère brutal (3.), et finalement si la rupture peut être
qualifiée d’abusive (4.) ».
Il rejette dans un premier temps l’argument de la demanderesse selon lequel la résilia¬
tion, prononcée quelques mois après la première échéance annuelle du contrat, aurait été
contraire à son article 17.1 (reconduction du contrat après la période initiale d’un an) au
motif qu’elle a été prononcée sur le fondement de l’article 3.4 du contrat (pour non-respect
de l’engagement minimum d’achat). Il observe :
« Le Contrat contient plusieurs dispositions de résiliation et c’est à la Partie qui
souhaite résilier de choisir la base qu'elle veut invoquer.
Le fait que la Défenderesse n'ait pas résilié le Contrat sur la base de l'article 17
n‘a donc aucun impact sur son droit d’invoquer, si les conditions en sont réunies,
une autre base pour mettre fin à son engagement contractuel.
Aucune autre raison ne peut conduire à la nullité de la résiliation ».
Il examine ensuite si la résiliation est conforme aux stipulations de l’article 3.4 et répond
par l’affirmative dans les termes suivants :
« Il y a lieu d’examiner si la rupture correspond spécifiquement aux conditions
formelles et matérielles de l’article 3.4 du Contrat ; si tel n’est pas le cas, la
résiliation serait fautive et pourrait donner lieu à des dommages et intérêts.
La résiliation basée sur l 'article 3.4 doit être prononcée par lettre recommandée
avec accusé de réception et être envoyée à l’adresse indiquée au Contrat (article
21). La lettre de résiliation correspond à ces critères.
L’article 3.4 exige un préavis de trois mois. Toutefois, la lettre du. .. ne con¬
tient pas de phrase qui mentionne spécifiquement que la rupture n'est pas immé¬
diate, mais fait courir ce préavis. D’un autre côté, la lettre de rupture ne contient
pas non plus de déclaration de rupture immédiate. La lettre se réfère spécifique¬
ment à l’article 3.4 et ouvre la possibilité d’une rencontre pour ’redéfinir les
conditions dans lesquelles [les] deux sociétés peuvent envisager de collaborer.’
L’arbitre est d’avis que la forme de la lettre du. . . correspond à l’article 3.4. Il
est suffisant que la lettre fasse spécifiquement référence à l’article 3.4 pour que le
destinataire de la lettre la comprenne comme étant le point de départ du préavis de
trois mois. De plus, la lettre ne déclare nullement une rupture immédiate, mais
ouvre la voie à une négociation, ce qui est conforme à l'esprit de l'article 3.4 et
contraire à une rupture avec effet immédiat.
L’arbitre est conscient qu 'aucune commande n 'a été passée ni exécutée pendant
le préavis. La raison (...) est toutefois un litige sur le non-paiement d’une partie
des factures antérieures, mais non un refus de fournir de la marchandise jusqu'à la
fin du Contrat. L 'absence de nouvelles commandes n’est donc pas déterminante
pour en déduire l’effet immédiat de la résiliation.
Du fait que la Demanderesse devait des sommes à la Défenderesse, celle-ci était
en droit d’exciper de l’exception d 'inexécution, c 'est-à-dire de surseoir à l 'exécu¬
tion de ses obligations jusqu’à ce que l'autre partie exécute les siennes. L'existence
de l’exception d'inexécution est reconnue en droit français pour tous les contrats
synallagmatiques (...) et ainsi pour les contrats de distribution exclusive [cita¬
tions omises].

• •• -i: ..i '-i-i ini:
N
:
Ainsi, le fournisseur peut refuser d'honorer des commandes si le distributeur est

en retard pour le paiement des commandes antérieures.
La rupture, basée sur l’article 3.4 du Contrat, requiert comme condition maté¬
rielle que la Défenderesse n 'ait pas respecté son engagement d'achat minimum.
(. . .) ».
Après avoir constaté que le distributeur n’a réalisé que moins de 20 % de l’objectif
contractuel annuel, l’Arbitre unique procède à l’analyse suivante:
« Une obligation contractuelle d’un chiffre d'affaires minimum peut être interpré¬
tée comme une obligation de résultat ou de moyens, en fonction de la rédaction du
contrat [citation omise],
La stipulation contractuelle de l'article 3.1, 1er alinéa (’Le distributeur
s'engage à atteindre le volume d'achats minimum annuel fixé à l 'Annexe 2’) semble
•?r plutôt suggérer une obligation de résultat. La réalisation de l'objectif est imposée
d’une manière catégorique: le distributeur's' engage à atteindre'. Il ne doit pas
seulement fournir ses meilleurs efforts ou faire en sorte que’. L'Arbitre ne tran¬
chera pas cette question pour autant car, même en admettant me obligation de
.î;. moyens, il s'agirait d'une obligation de moyens renforcée et la Demanderesse a
manqué à la satisfaire.
L‘Arbitre constate, conformément à la jurisprudence en la matière (CA Paris,
10 octobre 1989, Dalloz 1989 IR p-28) que le fait de n 'avoir atteint que 17,6% de
l'objectif est une forte indication d’une faute contractuelle.
( .)
Les informations supplémentaires données par la Demanderesse [sur demande
de l’Arbitre], en particulier dans son mémoire en date du 28 mars 2007 et pendant
l’audience, n’ont pas convaincu l'Arbitre sur le point de savoir si la Demanderesse
a effectivement fait tout ce qui était en son pouvoir pour réaliser l’objectif con¬
tractuel. L 'Arbitre retient à cet égard que le seuil des (...) a été fixé d'un commun
accord après une analyse du marché. La Demanderesse est active sur le marché
marocain du (. . .), qui n’est certes pas le même que celui [du contrat], mais assez
avoisinant pour permettre une opinion fondée sur les possibilités de commercia¬
lisation.
Il importe également de souligner que la Demanderesse a passé une première
commande [plusieurs mois avant la conclusion du Contrat], Les produits ainsi
livrés ont dû être vendus et ont dû permettre de connaître la réaction du marché.
Suite à cette expérience, le seuil des (...) a été fixé.
Quant aux efforts de marketing, tout ce qui peut être retenu résulte des deux
rapports de (...) et (. . .). Ces rapports montrent que la Demanderesse s'est lour¬
dement trompée, encore [trois mois après la conclusion du contrat], sur les chances
de pénétrer le marché. [Six mois après sa conclusion], elle préconise un change¬
ment radical de stratégie. Les rapports sont, par contre, assez laconiques sur les
visites chez les clients et la constitution d'un service de marketing ou l'emploi de
personnes pour la promotion des ventes. Aucune publicité dans les magazines
spécialisés ou aucune plaquette de publication n 'est versée au dossier. Le problème
de référencement chez les utilisateurs n‘est pas surprenant et aurait dû être pris en
compte lors de la conclusion du Contrat.
Ce qui est toutefois déterminant est l’écart très important entre le seuil con¬
tractuel et le résultat. La Demanderesse a réalisé moins de 20 % du chiffre con¬
venu. Elle ne peut pas se dédouaner en invoquant les erreurs d’appréciation du
marché ou des réactions, en quelque sorte prévisibles, des concurrents. Elle n 'évo¬
que ni une chute du marché ni une mauvaise conjoncture.
Il est toutefois à ce titre édifiant qu 'après la première commande [suivant la
conclusion du contrat] aucune autre commande n 'ait été effectuée jusqu’(. . .); au

lieu de commander mensuellement, il n'y a qu 'une seule commande pendant les six
premiers mois.
(...)
Les carences qu'elle invoque à l’égard de la Défenderesse ne sont pas réel¬
lement pertinentes. Les conséquences d’un possible retard dans la première liv¬
raison en (. . .) ne sont pas prouvées. Il n’y a aucun document dont résulterait une
réclamation du client.X 'absence d'un responsable chez la Défenderesse pendant
un certain temps n'a conduit à aucune doléance écrite de la Demanderesse. En tout
état de cause, ces incidents ne peuvent pas excuser un écart aussi important que
celui constaté en l’espèce. L'absence de correspondance et de réaction contem¬
poraine contribue à ne pas considérer ces manquements, s 'il y en avait, comme une
excuse valable. Les reproches formulés dans le cadre du litige douanier ne sont pas
fondés. La nomenclature appliquée par la Défenderesse ne peut pas être qualifiée
« d’erreur » ou « de faute ». Il suffit d’indiquer que les deux premières livraisons
sont passées sans problèmes. Les documents montrent au contraire que la Défen¬
deresse a activement soutenu la Demanderesse dans ses efforts à l’égard de la
douane marocaine pour justifier le code douanier appliqué. En ce qui concerne le
litige avec la douane, il ne peut être considéré ni comme un évènement de force
majeure, ni comme une excuse valable pour la Demanderesse. Il est évident, en
droit français, qu’il ne constitue pas un évènement de force majeure. La jurispru¬
dence française considère en effet que des problèmes avec la douane ne constituent
pas un cas de force majeure pour l ’importateur (Com. 20 juin 1995, n° 39-18.567).
La Demanderesse était l'importateur des Produits. L'article 6.2.1 du Contrat
stipule que les produits sont livrés « départ usine » conformément aux Incoterms
édition 2000 ou, éventuellement, « franco Marseille ». Elle supportait donc en tout
état de cause le risque d’éventuels problèmes avec la douane locale.
En plus, constitue seulement un cas deforce majeure un évènement qui rend
l'exécution du contrat impossible ou quasiment impossible. En l'espèce, l’appli¬
cation d 'un tarif douanier plus onéreiex n'a qu'une conséquence pécuniaire. Il est
fondamental qu 'un contrat doit être exécuté, même si son exécution est plus onér¬
euse pour une partie qu'initialement prévu et que la force majeure ne peut pas être
invoquée, lorsqu'une partie fait des pertes et veut éviter qu 'un risque qu'elle a
sous-évalué ou qui s'est concrétisé, neutralise ses obligations contractuelles.
L’article 19 du Contrat (’Force majeure’) est rédigé de la manière suivante :
'Aucune des Parties ne sera responsable d'un quelconque manquement aux
stipulations de ce Contrat si ce manquement est imputable à un cas de force
majeure. Il faut entendre par force majeure, tout évènement ne pouvant être sur¬
monté malgré une diligence raisonnable [du fabriquant] comme par exemple mais
non limité à: un incendie, une inondation, une explosion, une catastrophe naturelle,
une émeute ou une insurrection, une grève, des mesures prises par un gouverne¬
ment ou une instance gouvernementale de jure ou de facto ou des mesures judi¬
ciaires ou un acte de Dieu. (. . .) Le cas de force majeure ne dispensera pas le
Distributeur d'effectuer des paiements dus [au fabriquant], conformément aux
stipulations du Contrat.'
La définition de la force majeure en droit français, comme elle résulte de la
jurisprudence sur le fondement de l'article 1148 code civil et plus particulièrement
de l’arrêt de l’assemblée plénière de la Cour de cassation du 14 avril 2006 (Cass.
ass. plén., 14 avril 2006, Bull. n° 5) requiert qu 'un événement irrésistible ait rendu
l’exécution contractuelle impossible. L'arrêt de la chambre plénière de la Cour de
cassation du 14 avril 2006 (précité) a écarté le troisième élément classique de la
force majeure, à savoir l’imprévisibilité, cet élément étant compris dans l'irrésis¬
tibilité de l 'évènement, un évènement prévisible n'était pas irrésistible en toute état
de cause.

uü i
___ L-:---- '• - :•i,-.-.-.-* v i yj
Il apparaît, par conséquence, que l’article 19 du Contrat diverge de la définition

légale et prétorienne de la force majeure en droit français en ne requérant pas un
obstacle « irrésistible » ou « insurmontable », mais un « évènement ne pouvant être
surmonté malgré une diligence raisonnable ».
De l 'autre côté, les éléments cités dans la clause 19 sont ceux que l’on trouve
classiquement dans une clause de force majeure. La clause est donc ambigiie.
Même en admettant hypothétiquement que cette clause a baissé le seuil de Veffort
qui est demandé de la part de la partie affectée par un évènement de force majeure,
l'Arbitre est de l 'avis que la Demanderesse n 'a pas, face aux problèmes douaniers,
fait tout ce qui était requis de sa part au niveau du Contrat. La Demanderesse a
certes fourni toute une documentation sur son litige avec la douane, dont l’Arbitre
peut retenir qu 'elle a utilisé les moyens de recours dont elle dispose. Mais ce qui a
U: ■
frappé l'Arbitre, c'est l’absence totale de réaction pour exécuter, malgré ce bloc¬
age, le Contrat. Il n’y a aucune correspondance qui témoignerait d 'un effort en ce
sens. Aucune alternative n’a été explorée, aucun sacrifice commercial n’a été
envisagé. La possibilité d'une vente directe de produits finis a été évoquée en
audience, sans qu’elle n'ait été concrétisée d’aucune manière. Une « diligence
raisonnable » demande clairement plus d’un importateur pour surmonter une
difficulté au niveau contractuel.
Finalement, le litige avec la douane ne saurait excuser qu’une partie de la non-
réalisation du chiffre d'affaires annuel. Il est à noter à cet égard qu 'avant le litige
douanier, le chiffre contractuel à prendre en compte n'était que d’un montant
inférieur à [montant], donc 10 % du chiffre d’affaires annuel en 7 mois ».
En réponse à l’argument de la Demanderesse qui soutenait que la Défende resse aurait
renoncé à la réalisation du chiffre d’affaires minimum, l’Arbitre unique observe ce qui
suit :
« En ce qui concerne la question de savoir si la résiliation du 20 juin 2005 est
contractuellement justifiée, la fixation d'un objectif pour l’année contractuelle à
venir (basée sur l 'alinéa I de la clause 5.4) n'implique pas la renonciation à la non-
réalisation pendant l'année écoulée, L’Arbitre évoque à cet égard la clause 20,
alinéa 2, du Contrat, selon laquelle 'Le fait que l’une des Parties n’exige pas, à un
quelconque moment, le respect d’une stipulation du Contrat par l'autre Partie, ne
pourra pas être considérée comme un abandon de droits qui pourra à tout moment
exiger le respect de cette obligation’.
Le droit de résilier le Contrat par la non-réalisation du chiffre d’affaires est
limité, dans le temps aux trois premiers mois de l'année suivante. La fixation d'un
nouvel objectif n’empêche pas, pendant le temps contractuel limité de !’article 3.4,
d’invoquer pour autant la non-réalisation du chiffre d’affaires de l’année
précédente. Sinon, le délai des trois mois prévu du 2e alinéa de la clause 3.4
n'aurait pas d'utilité.
(...)
Même si l'on ne peut donc pas parler d'une renonciation au quota, la jurispru¬
dence considère l’argument qu’une tolérance du fournisseur peut valoir renoncia¬
tion (Lamy, Droit économique 2007 n° 4374). Or, en l’espèce cet argument ne peut
être retenu pour au moins deux raisons:
(les délais de tolérance, dont la jurisprudence avait à juger, étaient de plusieurs
années et donc très différents des faits de l'espèce; et
(en deuxième lieu, la clause 20.2 du Contrat s'oppose à considérer une « tol¬
érance » comme une renonciation effective.
L 'Arbitre arrive donc à la conclusion que la non-atteinte de l'objectif minimum
de chiffre d 'affaires est imputable à la Demanderesse. Partant de cette constata¬
tion, la résiliation du Contrat basée sur l'article 3.4 est justifiée ».
\
f R-eprinted from the Clunet 935
L’Arbitre unique ayant ainsi conclu que la résiliation était conforme au contrat, il
s’interroge sur la possibilité de la qualifier de brutale au sens de l’article L. 442-6, 5°
du Code de commerce.
« La rupture « brutale » au sens de cet article donne droit à des dommages et
intérêts. La rupture peut être « brutale », même si elle correspond au Contrat de
distribution. Pour qu'elle soit considérée comme « brutale », elle droit présenter un
élément de surprise (de Brosses, Droit et Patrimoine, juin 2003, page 54). Toute¬
fois, l'élément de surprise ne suffit pas ; il faut en plus que la rupture soit à la fois
surprenante, imprévisible et soudaine (CA Montpellier, 11 août 1999 : Cah. dr.
entr. 1999 n° 5, p. 19). La jurisprudence prend en compte tout le comportement des
Parties avant la rupture et pas uniquement la lettre de rupture elle-même. Ainsi,
une rupture peut être brutale, même si elle a été prononcée conformément au
Contrat, si le comportement d'une partie laisse légitimement croire à l'autre
que la relation contractuelle sera poursuivie (par ex. : Cass, corn, 23 mai
2000 : Petites Affiches 8 mars 2001, n° 48, p. 18, obs. M-R Garcia).
(...)
L'application de l ’article L. 442-6, 5° du Code de Commerce peut tout d’abord
se heurter à la constatation, (. . .) que la Demanderesse a commis une faute en ne
réalisant pas le chiffre d’affaires minimum et, (. . .), en ne payant pas toute la
marchandise. En effet, la quatrième phrase dudit article réserve expressément la
possibilité de résiliation pour faute.
Il a ainsi été jugé que la non-exécution doit être d’une certaine gravité (CA
Versailles, 29 février 1996). Le paiement des marchandises a également été con¬
sidéré comme un tel manquement grave (CA Versailles, 06 mars 2003). L 'Arbitre
hésite toutefois à considérer les manquements de la Demanderesse comme étant
d’une telle gravité; la tolérance de la Défenderesse, tant à l’égard du chiffre
d’affaires que du non-paiement des marchandises, en sont la cause principale.
En procédant par conséquent à l’examen de l’article L. 442-6, 5e du Code de
Commerce, l'Arbitre constate :
L’article L. 442-6 5ème du Code de Commerce français exige un préavis « écrit »
; en l’absence de préavis, la rupture est considérée comme « brutale ». Ceci peut
s’avérer problématique, car la lettre du 20 juin 2005 ne contient pas textuellement le
préavis contractuel, mais se borne à faire référence à V árdele 3.4 du Contrat.
L'Arbitre est conscient du débat autour de cette question (cf. par ex. JtirisClasseur
Commercial, fase. 303, n ¡03 et s. (108)). Il considère que le mot « préavis » ne
signifie pas le délai, mais la lettre de résiliation elle-même; cette interprétation
ressort de l’arrêt de la Cour de Cassation du 3 mars 2004 (Cah. dr. entr. 2004,
n° 3, p. 29). Par conséquent, la lettre du 20 juin 2005 est conforme à la loi. Même la
Défenderesse ne nie pas que la relation contractuelle aurait été poursuivie si
[l’ancien Directeur général] avait conservé son poste. Ce n'est qu’une nouvelle
direction, éh la personne de (. . .), qui a décidé de rompre le Contrat. De ce point
de vue, il y a bien un effet de surprise pour la Demanderesse. La Défenderesse
a changé d’avis dans un laps de temps de moins d’un mois. Bien que la carence
de la Demanderesse à réaliser l’objectif soit évident, l 'ancien Directeur Général de
la Défenderesse avait, dans les deux mois avant la rupture, donné l'impression que
celle-ci voulait continuer la relation contractuelle avec la Demanderesse. Ce com¬
portement est la continuation d’une tolérance tout au long de la première année
contractuelle pendant laquelle, dès son début, la réalisation de l’objectif était
compromise sans que la Défenderesse n 'ait averti la Demanderesse ou réclamé
une meilleure performance. (ÿ ■) S'y rajoute la livraison des équipements
■
[à l’issue de la première année contractuelle, destinés à mieux préparer la marchan¬

dise localement], ce qui laissait prévoir une continuation de la relation contractuelle.
H y a donc de fortes raisons de penser que la rupture était brutale au sens de
l’article L 442-6 n° 5.
936 Reprinted from the Chine!

:.7T7:;ÿ:r?7

Toutefois, l’Arbitre n 'est pas contraint de trancher cette question car, même en
acceptant une résiliation brutale, celle-ci n’a pas causé de préjudice à la Deman¬
deresse (...).
4. La résiliation n 'est pas abusive
Une résiliation peut également entraîner des dommages et intérêts si elle est
abusive (article 1134 du Code Civil). Ceci est le cas si elle contraire à la bonne foi,
comme par exemple en cas de duplicité (de Brosses, loc. cit. p. 57).
Même si le comportement de la Défenderesse présente un caractère surprenant,
on ne peut pas parler d’un comportement de mauvaise foi caractérisée ou de
duplicité. L’origine du changement d’attitude à l’égard de la Demanderesse est
le changement de la direction et une autre politique à l’égard du concessionnaire.
La nouvelle direction a pris sa décision très vite, sans laisser planer un quelconque
doute ou une incertitude, plus longtemps que cela était nécessaire. Même s'il existe
donc une certaine brutalité par rapport au comportement antérieur, il n’y a aucun
élément de duplicité ou de mauvaise foi ».
Se tournant ensuite vers la demande de dommages et intérêts présentée par la
Demanderesse, il observe:
« Il y a tout d'abord lieu de souligner que, bien que la rupture brutale d’une
relation contractuelle ouvre droit à des dommages et intérêts, les dommages et
intérêts qui peuvent être réclamés ne sont que ceux qui ont été causés par le
caractère brutal de la rupture (de Brosses, loc. cit. p. 60 ; CA Douai, 2e ch.,
15 mars 2001, SA Auchan d Sté PBC, JCP E 2001 II p. 1861, note M. Pédamon;
C. Lachièze, La rupture des relations commerciales à la croisée du droit commun et
du droit de la concurrence JCP E du 9 décembre 2004, 1815, n° 26). La rupture en
tant que telle est justifiée ; l 'autre partie contractuelle ne peut pas réclamer des
dommages et intérêts uniquement à cause du fait qu 'il y a eu rupture. Cette rupture
est l 'exercice d’un droit contractuel, qui peut être exercé conformément au Contrat
et qui ne peut donc pas être sanctionnée.
La réclamation de la Demanderesse est donc limitée au préjudice, dont elle peut
prouver qu’il a été causé par le caractère brutal de la résiliation.
En ce qui concerne la perte de revenus, il faut que les revenus, qui ne se sont pas
réalisés, aient un degré de certitude; une pure spéctdation ou même un modèle de
calcul ne saurait suffire. L'Arbitre s'appuie dans ce contexte sur l’analyse de
M. Gélinas (dans Evaluation of Damages in International Arbitration, Paris
2006, p. 11 s) et les sentences arbitrales qu 'il cite et qui confirment cette position.
L’Arbitre précise que le lucrum cessens comprend nécessairement un élément de
projection, car la perte a été constatée par la comparaison entre des évènements
futurs. Par conséquent, cette perte ne peut pas être établie avec la même certitude
que le damnum emergens. Toutefois, les dommages et intérêts ne sont pas destinés
qu 'à compenser une perte, et ne doivent pas procurer un profit, qui, dans le courant
’normal’ des relations, n 'aurait pas pu être réalisé. L'Arbitre demande donc une
base factuelle solide, dont il résulterait que, en l'absence de rupture ou de faute
contractuelle, le gain aurait été réalisé.
En d 'autres termes, s 'il n’y avait pas eu de rupture, la partie lésée aurait réalisé
le chiffre d’affaires qui lui a échappé à cause de la rupture (. . .).
L'Arbitre n 'examinera par la suite que les conséquences qui peuvent résulter de
ce fondement. L’exclusion de responsabilité prévue à la fin de l'article 3.4 du
Contrat ne s’applique pas car, comme il a été dit ci-dessus, ¡’application de
l’article 3.4 n'était pas fautive. Par contre, l'exclusion ne peut pas être invoquée
en cas de rupture brutale et contre une action basée sur l'article L. 442-6, 5°, qui
est d'ordre public.
( . .) ».
*
!
!•
v
\
t Reprinted from the Clunet 937
i
Sur ce fondement, l’Arbitre unique rejette l’ensemble des chefs de demande du distri¬
buteur (investissements engagés et perdus, réputation sur le marché, perte de marge, perte
d’exploitation subie), estimant notamment que les investissements réalisés l’ont été en
début de contrat et sont sans lien avec le sentiment de la demanderesse que le contrat allait
être poursuivi.
L’Arbitre rejette également la demande de dommages et intérêts présentée par la
Défenderesse, à l’exception d’une demande de paiement de factures impayées :
« L’Arbitre constate tout d’abord que rien ne s'oppose (...) en principe [à une
demande de compensation pour perte de marge commerciale sur le chiffre
d’affaires escompté].
(a) La clause 3.4 qui a été actionnée pour mettre fin au Contrat exclut le
paiement de dommages et intérêts en faveur de la Défenderesse, mais pas une
réclamation de la part du concédant.
Il est certes vrai que la clause contient toute une liste des conséquences en cas
de manquement à l'obligation d'atteindre le quota, et que la sollicitation de dom¬
mages et intérêts n'y figure pas. Toutefois, la clause ne les exclut pas non plus, et il
serait trop hasardeux de conclure à une exclusion implicite, sans avoir un fonde¬
ment dans la rédaction de la clause.
De plus, la non-atteinte d'un minimum contractuel constitue en l’espèce une
faute contractuelle qui, en principe, donne droit à des dommages et intérêts (article
1142 du Code civil).
(b) Toutefois, l’Arbitre considère qu 'il n’y a pas lieu d’accorder des dommages
et intérêts en l'espèce.
L'Arbitre se réfère tout d’abord au principe de l’article 1146 du Code civil,
selon lequel il n’y a pas de dommages et intérêts si le débiteur n 'a pas été au
préalable mis en demeure.
En l’espèce, la Défenderesse n’a jamais sommé la Demanderesse de respecter
son obligation de chiffre d’affaires minimum. Il y a eu au contraire une tolérance
de sa part, qui a perduré pendant toute Tannée contractuelle. Il est juste de dire
que l'application de la clause 3.4 du Contrat ne requiert pas de mise en demeure
préalable, mais ceci ne vaut pas pour une réclamation de dommages et intérêts
basée sur le droit commun.
L'arbitre est conscient de la récente jurisprudence de la Cour de Cassation, qui,
par un arrêt de principe de la chambre mixte du 6 juillet 2007 (n° 06-13.823), a jugé
qu’une mise en demeure n 'était pas requise pour allouer des dommages et intérêts
compensatoires, lorsque 'l’inexécution du contrat était acquise’. Or, cette inexécu¬
tion n 'était pas acquise pendant la validité du Contrat, dans la mesure où la Défen¬
deresse a toujours fait preuve d’une grande tolérance à l 'égard de l’inexécution de la
Demanderesse. Elle s’est comportée de telle manière que la Demanderesse pouvait
croire, encore à la fin du mois d'avril 2005, que le Contrat serait prolongé. De ce fait,
l’inexécution n’était pas acquise au sens de la récente jurisprudence.
L’Arbitre rajoute que le principe d’une mise en demeure contient un fort élé¬
ment d’équité ; la loi veut ainsi éviter que quelqu’un soit sujet à des réclamations en
dommages et intérêts, sans avoir été averti des conséquences de son manquement
contractuel. Au vu de la tolérance de la Défenderesse, un avertissement aurait été
nécessaire pour alerter la Demanderesse des conséquences de son manquement».
L’Arbitre unique ajoute, que pour la période postérieure à la première année
contractuelle :
« La Défenderesse a mis fin au Contrat elle-même; elle a ainsi empêché la Deman¬
deresse de réaliser ce chiffre d’affaires. Ainsi, la Demanderesse n’a pas commis de
faute en ce qui concerne le chiffre d’affaires de la période après le 1er avril 2005, et
n’est redevable d’aucune somme au titre de dommages et intérêts ».
938 Reprinted from the Ciunet

;
À défaut de stipulation contractuelle sur les intérêts de retard, l’arbitre unique fait
application de l’article 441-6, alinéa 6, du Code de commerce, soit le taux de la Banque
centrale européenne majoré de 7 points, à compter de la date d’exigibilité de chaque facture
impayée. Il laisse à chaque partie la charge de la moitié des fiais administratifs et des frais
et honoraires de Tarbitre ainsi que de ses propres frais de défense au motif que chaque
partie a succombé, soit pour l’intégralité de leurs réclamations, soit pour une part essen¬
tielle de celle-ci.
NOTE. — — I. L’arbitre unique observe avec raison que la Convention de Vienne sur
la vente internationale de marchandises ne s’applique pas au contrat litigieux, qui créait
principalement à la charge du distributeur les obligations d’importer les produits contrac¬
tuels et dont l’objet était l’organisation d’un réseau de distributeur, et d’atteindre un volume
.as minimum d’achat annuel. Certes, les parties avaient soumis ce dernier au droit français
dont on sait que, la France ayant ratifié la Convention, il intègre les règles matérielles
i1 qu’elle stipule. Plus généralement, la Convention est directement applicable à tout contrat
de vente internationale, à l'exception de ceux énumérés à l’article 2, régis par la loi d’un
État partie. Lorsque ses conditions d’application sont satisfaites, elle s’impose donc à
l’arbitre, sauf à ce que, conformément à son article 6, les parties l’aient exclue explicite¬
ment ou implicitement (en ce sens, V. A. Mourre : L'application par l’arbitre de la
Convention de Vienne sur la vente internationale de marchandises : Bull. CCI 2006,
vol. 17, n° I, p. 45, et les sentences citées ; pour une application récente, sentence CCI
n° 12290 de 2005 : JDI 2010, p. 1406, note F. Mantilla Serrano, sentence CCI «° 12418 de
2004 : JDI 2008, p. 1188, note J.-J. Arnaldez).
En l’espèce néanmoins, l’arbitre écarte la Convention au motif, non pas que les parties
auraient tacitement exclu son application en s’abstenant d’y faire référence dans leurs
soumissions, mais parce que le contrat dont la résiliation était à la source du litige était
un contrat de distribution. Il est en effet couramment admis que ces contrats, parce que leur
objet direct n’est pas la vente mais l’organisation d’un réseau de distribution et la fixation
du cadre dans lequel les ventes interviendront, n’entrent pas dans le champ d'application de
la Convention de Vienne, pas plus d’ailleurs que de la Convention de La Haye du 15 février
1955 sur la loi applicable à la vente internationale d’objets mobiliers corporels (cf. J.-P.
Viennois, Contrats de distribution, Règles communes aux différents contrats de distribu¬
tion : JCl. Commercial, Fase. 303). La Cour de cassation l’a confirmé, à propos de la
Convention de Vienne dans un arrêt contemporain de la sentence en décidant « qu’après
avoir rappelé d’un côté que les parties sont convenues de se soumettre à la loi française, de
l’autre que la Convention de Vienne du 11 avril 1980, sur les contrats de vente interna¬
tionale de marchandises, ratifiée par la France, a vocation à s’appliquer aux contrats de
vente de marchandises (. . .) dès lors que les parties n’en ont pas exclu l’application, la cour
d’appel a, à bon droit, examiné les fautes invoquées dans l’exécution de ces ventes au
regard des dispositions de la Convention de Vienne du 11 avril 1 980, sans qu’il importe que
ces opérations soient intervenues en application d’un contrat cadre de distribution
exclusive, lui-même non soumis à ladite Convention » (Cass, corn., 20 fèvr. 2007 :
D. 2008, panorama sur le droit uniforme de la vente internationale de marchandises,
obs. C. Witz, p. 2622; D. 2007, AJ 795, obs. E. Chevrier ; RTD civ. 2007, p. 302, obs.
P. Remy-Corlay ; RTD com. 2007, p. 586, obs. B. Bouloc, et 2008. 208, obs. P. Delebecque;
RDC 2007. 1255, obs. J.-B. Racine ; JCP 2007. I. 172, Chronique Droit international et
européen, par M. Luby et S. Poillot-Peruzzetto ( dir.), n° 1, obs. M. Nadaud).
On peut toutefois s’interroger sur le bien-fondé de la décision dans sa généralité.
L’examen des conditions de la résiliation conduisait en effet l’arbitre à se pencher sur
les conditions d’exécution des ventes intervenues dans le cadre de celle-ci et l’arbitre aurait
sans doute dû examiner les éventuelles contraventions de l’une ou de l’autre des parties au
regard de la Convention de Vienne avant de déterminer leur incidence sur la résiliation du
contrat, même appréciée par référence au droit français. II est vrai qu’aucune partie n’avait

plaidé l’application de la Convention de Vienne, mais on a noté que l’Arbitre unique, à

juste titre, n’en a pas conclu qu’elles excluaient tacitement son application. Ainsi que
l’observe un auteur, on ne saurait conclure de la seule référence des parties aux règles
internes du droit applicable qu’elles ont voulu exclure la Convention sans s’être assurées au
préalable de ce qu’elles avaient connaissance de son applicabilité (C. Witz, Panorama sur
le droit uniforme de la vente internationale de marchandises : D. 2010, p. 924). Il est donc
regrettable que l’Arbitre unique n’ait pas soulevé d’office la question et interrogé les
parties à cet égard, ce qui lui aurait à la fois permis de déterminer leur position expresse
et de pouvoir en tant que de besoin appliquer la Convention après un débat écartant tout
risque de violation du principe du contradictoire (en ce sens, F. Mantilla-Serrano, note sous
sentence CCI n° 12290, précitée)
II.— On ne peut en revanche qu’approuver l’analyse de l’Arbitre unique quant à la
forme de la résiliation du contrat et, avec la réserve ci-après, l’incidence du manquement
par le fabriquant à atteindre la quantité minimum d’achats. En particulier, en jugeant que la
lettre de résiliation satisfait à l’exigence contractuelle qu’un délai de trois mois soit con¬
senti au distributeur défaillant, au motif qu’elle se réfère expressément à la disposition
contractuelle qui formule cette exigence et que, loin de mettre fin immédiatement au
contrat, elle ouvre une période de renégociation des conditions de son exécution, l’arbitre
fait preuve d’une souplesse et d’une absence de formalisme bienvenue en matière de
commerce international et d’arbitrage. Le distributeur, en sa qualité de commerçant averti,
n’avait qu’à se référer à la disposition contractuelle pertinente qui était ainsi identifiée,
pour avoir connaissance de l’existence du préavis. Or, il ne semble pas qu’il ait à l’époque
critiqué la résiliation pour ne pas avoir respecté le préavis. Au contraire, il a cherché à «
organiser des rencontres avec la Défenderesse (. . .) qui n’ont toutefois pas abouti, la
Défenderesse faisant dépendre les rencontres et une décision sur la suite des relations
contractuelles d’un règlement de factures qu’elle avait en souffrance ». Quelle que soit
l’opinion qu’on puisse avoir de la décision de l’Arbitre quant à cette dernière question et du
bien-fondé de l’exception d’inexécution soulevée par le distributeur, il n’en reste pas moins
que faisant application de son pouvoir d’appréciation des faits, l’Arbitre unique pouvait
décider que la lettre, au regard des faits qui lui étaient présentés, n’entraînait pas une
résiliation immédiate du contrat, mais seulement à l’issue du préavis contractuel.
Par ailleurs, il est intéressant que l’Arbitre unique, ayant jugé la résiliation valable en la
forme, ne fasse pas une application automatique de la clause de résiliation, se bornant à
constater que les achats réalisés par le distributeur étaient loin (17,6 %) d’atteindre le
minimum contractuel sans que cette insuffisance puisse être imputée à des manquements
du fabriquant, mais procède à une analyse approfondie des circonstances de la conclusion
et de l’exécution du contrat. Il note en particulier que le distributeur a participé à la fixation
du minimum d’achat garanti et l’a accepté en toute connaissance de cause, qu’il n’en a
réalisé qu’une très faible proportion et que, en dépit des demandes de l’arbitre pour qu’il en
précise le contenu, il ne rapporte pas lapreuve d’efforts commerciaux pour remédier à cette
situation.
III. — L’analyse qu’il fait de la force majeure prête plus à discussion. Si on peut
partager l’idée, soutenue par un partie de la doctrine française, que la force majeure est un
évènement irrésistible qui rend l’exécution contractuelle impossible, on ne peut qu’être
surpris que l’Arbitre unique se réfère à cet égard à l’arrêt de l’assemblée plénière de la
Cour de cassation du 14 avril 2006, dont il écrit qu’il « a écarté le troisième élément
classique de la force majeure, à savoir l’imprévisibilité. » Bien au contraire, la Cour y
décide « qu’il n’y a lieu à aucun dommages-intérêts lorsque, par suite d’un événement de
force majeure ou d’un cas fortuit, le débiteur a été empêché de donner ou de faire ce à
quoi il était obligé, ou a fait ce qui lui était interdit ; qu’il en est ainsi lorsque le débiteur a

------- := \
__
été empêché d’exécuter par la maladie, dès lors que cet évènement, présentant un car-
actère imprévisible lors de la conclusion du contrat et irrésistible dans son exécution, est
constitutif d’un cas de force majeure. ». Cette décision, avec un arrêt du même jour rendu
en matière de responsabilité délictuelle, a été très largement débattue {BICC, Ie' juill.
2006, rapp. Petit, concl. de Gouttes ; D. 2006. 15 77, note P. Jourdain (2e esp.) ; ibid. IR
1131, obs. Gallmeister ; ibid, chron. 1566, par Noguéro ; ibid. Pan. 1933, obs. Bran, et
2645, obs. B. Fauvarque-Cosson ; JCP 2006. II. 10087, note Grosser (2e esp.) ; JCP E
2006, 2224, n° 11, obs. Legros ; Gaz. pal. 2006. 2496, concl. de Gouttes; Defrénois 2006,
p. 1212, obs. E. Savaux ; CCC 2006, n° 152, note Leveneur ; RLDC 2006/29, n° 2129,
note Mekki ; LPA 6 juill. 2006, note Le Maguerese ; RDC 2006. 1083, obs. J.-Y. Laithier,
et 1207, obs. Viney), souvent dans un sens critique, et diversement interprétée. A lire le
communiqué publié par la Cour de cassation, ces arrêts réaffirmeraient la conception
M. classique de la force majeure avec ses trois critères cumulés: extériorité, imprévisibilité
~ ■
et irrésistibilité (V. B. Fauvarque-Cosson, précité). Si, en dépit de ce texte, un critère

classique est rejeté, c’est celui de l’extériorité auquel la Cour ne fait aucune référence (en
ce sens, V.P. Jourdain, préc. et Ph. Brun, préc.), et non l’imprévisibilité. Certes, on ne
peut conclure de la seule affirmation par la Cour que la force majeure est caractérisée en
cas de réunion de l’imprévisibilité et de l’irrésistibilité, que son existence exige néces¬
sairement le premier de ces critères. Un auteur a ainsi pu écrire qu’on « se défend mal
(. . .) du sentiment que (. . .) la condition d’imprévisibilité ne reçoit guère qu’un hom¬
mage verbal. Et l’on se prend à espérer, du même coup, que ces arrêts ne condamnent pas
nécessairement la jurisprudence précitée qui se contentait de la seule irrésistibilité lors¬
que la prévision de l’événement ne pouvait suffire à en conjurer les effets, et sous la
réserve que toutes les mesures aient été prises pour l’éviter » {Ph. Brun, préc.). Il
n’empêche que la Cour a constaté dans ces deux arrêts que l’événement exonératoire
de responsabilité était imprévisible, et a précisé qu’en matière contractuelle, l’imprévi¬
sibilité s’appréciait au moment de la conclusion du contrat.
Par ailleurs, on peut s’étonner de la conclusion par l’arbitre que la clause de force
majeure insérée dans le contrat, stipulant qu’« il faut entendre par force majeure, tout
évènement ne pouvant être surmonté malgré une diligence raisonnable » était ambige au
motif que les exemples d’événements donnés « sont ceux que l’on trouve classiquement
dans une clause de force majeure ». En premier lieu, il était mentionné que la liste
d’exemples figurant au contrat {« un incendie, une inondation, une explosion, une catas¬
trophe naturelle. . . ») n’était pas limitative, et surtout, en second lieu, la précision que
l’événement ne peut pas être surmonté malgré une diligence raisonnable ne tend pas à
définir le type d’événement pouvant constituer un cas de force majeure mais l’incidence
qu’il doit avoir sur l’exécution du contrat. Ainsi une catastrophe naturelle, par exemple,
peut être ou ne pas être un cas de force majeure en fonction de l’intensité avec laquelle
elle affecte l’exécution du contrat et le degré d’irrésistibilité exigé par la règle de droit
définissant la notion de force majeure. Au demeurant, la clause contractuelle rappelait les
termes de la Convention de Vienne dont l’article 79 définit la force majeure en ces
termes : « Une partie n'est pas responsable de l'inexécution de l’une quelconque de
ses obligations si elle prouve que cette inexécution est due à un empêchement indépen¬
dant de sa volonté et que l’on ne pouvait raisonnablement attendre d'elle qu'elle le
prenne en considération au moment de la conchision du contrat, qu'elle le prévienne
ou le surmonte ou qu 'elle en prévienne ou surmonte les conséquences ». Or, les difficultés
douanières rencontrées affectaient au premier chef les ventes réalisées dans le cadre du
contrat de distribution dont on a vu qu’elles relèvent de l’application de la Convention de
Vienne. Si ces difficultés devaient constituer des cas de force majeure exonérant le
distributeur de ses obligations en qualité d’acheteur, il serait paradoxal de conclure
qu’il reste responsable de l’inexécution de son obligation, en qualité de distributeur,
de réaliser un minimum contractuel d’achat.
Reprinted from the Chmet 941

Ces observations faites, la solution retenue par l’arbitre semble devoir être approuvée et
cela qu’on se réfère à la définition classique du droit français, à celle de la Convention de
Vienne, ou à celle du contrat. Certes, il apparaît abrupt d’affirmer que « la jurisprudence
française considère que des problèmes avec la douane ne constituent pas un cas de
force majeure pour l’importateur » sur le seul fondement d’un arrêt de la Chambre com¬
merciale de la Cour de cassation du 20 juin 1995, qui se limite à approuver la condamnation à
des dommages et intérêts d’un importateur,au profit de son client, en dépit d’un accord entre
des parties sur le fait que le contrat les liant ne pouvait avoir d’effet, par suite du blocage des
marchandises en douane, mentionné dans une ordonnance de référé qui ne constatait pas la
renonciation par la société demanderesse à une demande en dommages-intérêts. Il reste
néanmoins, ainsi que le constate l’Arbitre unique, que le problème spécifique rencontré
en l’espèce, entraînait tout au plus une augmentation du coût d’importation à la charge du
distributeur et n’empêchait pas l’exécution du contrat: elle ne pouvait donc constituer un cas
de force majeure. La solution est classique (V. sentence CCI n° 10527 en 2000: JDI 2004, p.
¡263, note E. Jolivet, à propos d’une modification des règles de change « II faut donc que la
partie qui se déclare empêchée n’ait pu recourir à une solution alternative qui aurait, même à
un coût supérieur, permis l’exécution »). On peut ajouter qu’au regard de la faiblesse des
efforts commerciaux engagés par le distributeur, tels qu’ils sont rapportés par l’Arbitre
unique, l’existence d’un lien de causalité entre les difficultés douanières rencontrées et la
non-réalisation du minimum contractuel n’apparaissait pas évidente.
IV. — On pouvait également se demander si, comme le soutenait le distributeur, le
fabriquant, en laissant le contrat se prolonger pour une période de trois ans à l’expiration de
la première année contractuelle, alors qu’il savait que l’objectif de vente pour cette pre¬
mière année ne serait pas réalisé, n’avait pas renoncé à se prévaloir de la faculté de résilier
pour ce motif, quelques mois plus tard seulement. À cela, on pouvait rétortjucr que la
renonciation ne se présume pas, et d’autant moins en l’espèce qu’une disposition contrac¬
tuelle excluait que la tolérance d’une partie face à l’inexécution de ses obligations par
l’autre soit considérée comme une renonciation à ses droits. Le recours à la théorie de
Yestoppel, dont on sait qu’elle est parfois mise en œuvre par les arbitres du commerce
international au titre des principes généraux du droit (E. Gaillard, L'interdiction de se
contredire au détriment d'autrui comme principe général du droit du commerce
international: Rev. art. 1985, p. 241), n’a pas été envisagé par les parties, mais ne semblait
pas non plus pouvoir s’appliquer dès lors que le distributeur n’avait engagé aucun inves¬
tissement sur la base du sentiment qu’il pouvait avoir que le contrat serait prolongé.
L’Arbitre unique a préféré envisager la question sous l’angle de la rupture brutale d’une
relation commerciale établie.
V. — Il s’interroge en effet sur le caractère éventuellement brutal de la rupture au
regard de l’article L. 442-6, 5° du Code de commerce qui dispose qu’ce engage la respons¬
abilité de son auteur et l ’oblige à réparer le préjudice causé le fait, par tout producteur,
commerçant, industriel ( . .) de rompre brutalement, même partiellement, une relation
commerciale établie, sans préavis écrit tenant compte de la durée de la relation commer¬
ciale et respectant la durée minimale de préavis déterminée, en référence aux usages du
commerce, par des accords industriels ». Sa compétence à cet égard ne donnait pas lieu à
discussion. La Cour de cassation a en effet récemment rappelé que les conventions
d’arbitrage ne sont pas manifestement inapplicables aux litiges fondés sur cet article, «
peu important que des dispositions d’ordre public régissent le fond du litige dès lors que le
recours à l’arbitrage n’est pas exclu du seul fait que des dispositions impératives, fussent-
elles constitutives d’une loi de police, sont applicables » (Cass. lre civ., 8 juill. 2010: Rev.
arb. 2010, p. 511, note R. Dupeyré). En l’espèce, la clause compromissoire, qui visait « les
différends, controverses ou réclamations se produisant dans le cadre de ce Contrat ou de sa
violation, de sa cessation ou de sa nullité » s’étendait indiscutablement à la question

litigieuse. Tout au plus, peut-on regretter que l’Arbitre unique ne se soit pas justifié sur
l’application de la loi française, loi du contrat, aune demande relevant de la responsabilité
délictuelle, en principe soumise à la loi de l’État du lieu où le fait dommageable s’est
produit (Cass, com., 21 oct. 2008, non publié au bulletin). Mais il est vrai que l’arbitre
n’étant pas soumis aux règles de conflits du for, il applique les règles de droit qu’il juge
appropriées, conformément à l’article 17 du Règlement alors en vigueur et que la question
avait un intérêt pratique limité dès lors qu’il a jugé inutile de se prononcer sur le caractère
brutal de la résiliation, sa brutalité éventuelle n’ayant entraîné aucun dommage spécifique.
B. D.
•-L'
!
;
¡
I Reprinted from the Clunct 943
V
ft
------- KV.-.T?yÿ— T*j • .. :ÿ• ■-
-
- -'
I. Convention d’arbitrage. Inexistence. Validité.

Interprétation. —
Droit applicable.
IL — Compétence du Tribunal arbitral. Incompétence soulevée par —
;
l’Arbitre unique (oui). —
Principe de l’autonomie de la clause d’arbitrage.
Participation dans l’arbitrage d’un État souverain.
—
III.
(non).
—Droit applicable. —
Droit français. Droit choisi par les parties
Convention de Vienne de 1980 sur la vente internationale de
—
marchandises (non). —
Attente des parties.
IV. —
Lex Mercatoria.
professionnelle. —
—
Bonne foi.
Devoir de renseignement.
Présomption de compétence
Pacta sunt servanda.
—— —
Participation dans l’arbitrage d’un État souverain.
V.
—
Contrat. —
Nullité pour corruption (non).
raison de la loi interne de l’État souverain partie (non).
Preuve. — — Nullité en
VI.
— Ordre public réellement international. — Corruption.
VH. — Frais d’arbitrage.
Tribunal arbitral.
— Répartition. — Pouvoir d’appréciation du
La sentence commentée illustre une application du principe de l'autonomie de la convention

d’arbitrage utilisé par l’Arbitre unique afin de se déclarer compétent dans un litige opposant
un homme d’affaire à un État souverain. L’Arbitre unique poursuit en déterminant le droit
applicable au contrat principal. En l’absence de choix exprès des parties, l'Arbitre unique se
livre à une analyse de leur conduite au cours de la procédure. L'Arbitre unique décide ensuite
de l’inexistence d’une autre convention pour des raisons de preuve et non enraisondes
dispositions du droit interne de l’État souverain partie à cette convention. Par ailleurs, l 'arbi¬
tre analyse les allégations de corruption et retient que celles-ci ne sont pas démontrées. Enfin,
l’arbitre unique condamne l'Etat souverain à supporter les frais de l'arbitrage.
L’affaire CCI n° 14470 oppose un homme d’affaires des Émirats Arabes Unis (ci-après «
Monsieur H ») à un État souverain (ci-après « l’État »).
Les faits de l’espèce, assez simples, sont bien résumés par l’Arbitre unique, siégeant à
Paris, comme suit:
« Les parties ne semblent pas s'opposer sur l’existence du contrat du 22 janvier 1997
et sur son contenu. Il s'agit d’un contrat de vente (article 1er : objet) d’un lot de 600
véhicides répartis en 4 sous-lots en fonction de certaines spécificitéstechniques.
Le montant global du prix convenu est de 13.474.015 Livres Sterling.
Les parties ne s’opposent pas, non plus, sur la nature et l’étendue des obliga¬
tions souscrites ni sur la réalité de leur exécution. Le vendeur s’est obligé à livrer
les véhicules dans un délai ne dépassant pas les 16 semaines à compter de la mise
en place du financement qu’il s’est engagé à fournir aux termes de l’article 7 du
contrat. Celui-ci prévoit le paiement immédiat par virement bancaire de la somme

4 Millions £ Le reste, soit la somme de 9.474.015 £, devant faire l'objet d'un

financement de 24 mois « offert » par le vendeur. Le paiement de cette somme
devait se faire en quatre mensualités. Toutefois, la mise en place du financement
par [Monsieur H] était formellement subordonnée à la fourniture par l 'Etat [ . . . ]
d’une garantie bancaire émise par une banque mondiale de premier ordre.
Aucune des parties ne conteste le fait que le contrat a été signé par [Monsieur H]
lui-même en son nom et pour son compte; et que c'est [Monsieur MM], Ministre de
l’économie, des finances et du budget qui est le signataire du contrat pour le
compte et au nom de l’État.
En ce qui concerne l’exécution du contrat, il n’est contesté par aucune des
parties que l État a payé la somme de 4 millions £, mais qu 'il n’a pas été en mesure
de fournir la garantie bancaire. L'article 2 de l’avenant précise, en effet, que «
l 'Etat [ ... ]a informé [Monsieur H] qu’il n’est pas en mesure à présent de fournir
la garantie bancaire ». Ainsi les parties ne s'opposent pas sur les raisons qui les ont
conduits à négocier et à signer l'avenant du 13 mai 1997.
Il convient aussi d’observer que l’avenant est signé par [Monsieur H] et par
[Monsieur MM], Ministre de l’économie, des finances et du budget pour le compte
et au nom de l’État.
Les parties sont d'accord pour dire que, en contrepartie du premier versement
fait par l’État, [Monsieur H] a bien livré et l’État a réceptionné 135 véhicules de
marque X Elles sont aussi d’accord pour dire que l’avenant a prévu pour le reste,
soit pour 425 véhicules X ou 403 Véhicules Z, l’obligation pour l État de fournir, au
vendeur qui doit toujours mettre en place le financement, une lettre irrévocable
d'engagement. Les parties sont d’accord, ou en tout cas ne s’opposent pas, sur le
fait que c’est l État qui, cette fois encore, n'a pas été en mesure de fournir la lettre
d’engagement irrévocable.
Il doit alors être observé que le montant de cette deuxième somme n’est plus
libellé en Livres Sterling, monnaie retenue comme monnaie de compte à l'article 2 du
contrat initial. La somme relative à la deuxième phqse est fixée à 18.885.000 US$.
Les parties s’accordent à dire qu'aux termes de ¡'avenant, et au cas où il sera
possible de compléter la deuxième partie du contrat, le vendeur s'engage à fournir,
en complément de la première partie, soit 25 véhicules Z, soit 40 véhicules X
supplémentaires,
On peut observer que les deux parties réclament à un moment ou un autre la
mise en œuvre du contrat principal et de l’avenant. Le demandeur en demande
l’application à titre subsidiaire alors que l’État en réclame l’application à titre
principal dès lors qu'il conteste l 'existence et la validité du Protocole transaction-
nel.
C’est en raison de l'inexécution de l’avenant que le litige commence à naître
entre les parties. [Monsieur H\fera une première tentative formalisée par la pré¬
sentation d'un projet d’accord préliminaire. Ce projet, signé par [Monsieur H],
prévoit, pour [l’État], la signature du Ministre des finances. Le projet n'a jamais
reçu l’accord de l'Etat et a dû être abandonné.
Par la suite, les négociations de règlement amiable n’ont plus eu lieu entre
[Monsieur H], ou son conseil et le Ministre des finances, mais avec le Ministre
Directeur du Cabinet Présidentiel, [Monsieur J], et/ou [Monsieur K], Conseiller
Juridique à la Présidence de la République.
JMonsieur H] conclut de ces négociations qu’il est parvenu à un accord avec
.
l’Etat [ . . ]. Il prend l’initiative d’envoyer un projet et sollicite l’accord formel de
l'Etat. [Monsieur H] considère qu 'il y a un accord transactionnel ayant l’autorité
de la chose jugée et liant l'État. Il en réclame l'exécution pure et simple dans les
termes évoqués dans la partie relative à la position du demandeur. Il en établit
l'existence en se prévalant d'une lettre adressée par le Ministre Directeur du

__ —- --
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Cabinet Présidentiel à son collègue des finances, [Monsieur L], l 'informant qu 'il a
signé le Protocole Transactionnel sur instruction du Chef de l 'Etat et lui deman¬
dant de l’approuver.
Pour sa part, [l’Etat] estime qu 'un tel accord n 'a jamais existé, l 'État n’y ayant
jamais consenti. Elle estime qu 'un tel accord est nul de nullité absolue pour défaut
de pouvoir, absence de cause et illicéité.
Le Tribunal Arbitral doit donc se prononcer sur l’existence et la validité de
l 'accord transactionnel. Ce n’est que s 'il est convaincu de son inexistence ou de
sa nullité qu 'il envisagera la question de l 'application du contrat principal et de
l 'avenant. Auparavant cependant, et en conformité avec sa mission, le Tribunal
Arbitral doit dire sur quelle convention d’arbitrage, celle contenue dans le con¬
trat de vente non modifiée par l'avenant ou celle incluse dans le Protocole
as- d'Accord Transactionnel, il fonde sa compétence. Il doit aussi déterminer le
i1" droit applicable ».
;
L’Arbitre unique, dans sa Sentence, traite cinq questions qui méritent d’être commen¬
tées, à savoir (i) la question de sa propre compétence, (ii) la question du droit applicable au
contrat de vente, (iii) la question de l’existence du Protocole transactionnel, (iv) la question
d’une possible corruption dans l’affaire et (v) la question de la répartition des frais de
l’arbitrage.
Tout d’abord, quant à la question de sa propre compétence, l’Arbitre unique écrit:
« Alors que le demandeur se réfère, dans ses écritures, aussi bien à la convention
d’arbitrage insérée dans le contrat de vente, non modifiée par l’avenant, que celle
contenue dans le Protocole d’Accord Transactionnel, la défenderesse invoque
exclusivement l'article 13.2 du contrat de vente. Elle estime que seuls le contrat
et l 'avenant peuvent servir de base aux prétentions des parties.
Le Tribunal arbitral observe que les deux conventions d’arbitrage contenues
dans le contrat initial et dans le Protocole Transactionnel prévoient le recours à
l’arbitrage sous les auspices de la CCI et en application de son règlement. Il
observe toutefois des différences de rédaction entre les deux stipulations. Ainsi,
alors que l'article 13 du contrat prévoit que l’arbitrage doit avoir lieu à Londres,
Paris ou Genève, l’article 5 du Protocole est resté silencieux sur le siège arbitral.
Le Tribunal arbitral estime cependant que ces différences n 'ont aucune incidence
sur sa compétence. En effet, aucune des parties n'a soulevé l’objection d’incom¬
pétence ni contesté le déroulement de l’arbitrage à Paris, (lieu fixé par décision de
la Cour internationale d’arbitrage de la CCI). Il note aussi que les parties ont, par
la signature de l 'acte de mission, ainsi que par leur participation à la procédure
d'arbitrage, reconnu la compétence du Tribunal arbitral. Il en est d’autant plus
ainsi que les deux parties se sont prévalu des obligations et stipulations contenues
dans les deux actes conventionnels. Il estime que le fait pour la défenderesse
d’avoir soulevé la nullité du Protocole n’est pas de nature à remettre en cause
sa compétence. Outre le fait qu 'aucune contestation n'a été avancée de ce chef il
est admis que la convention d’arbitrage est autonome par rapport au contrat
principal et qu’en conséquence la nullité éventuelle de celui-ci n’entraîne pas
ipso facto celle de l’accord compromissoire. Un tel principe est solidement
admis en droit français et par la jurisprudence arbitrale internationale (Ph.
Fouchard, E. Gaillard, B. Goldman, Traité de l'arbitrage commercial
international: Litec 1996, n° 391 et s.) et est prévu par l 'article 6, 4° du Règlement
d’arbitrage de la CCI.
Pour ces raisons, le Tribunal arbitral estime, sans avoir à en décider formelle¬
ment, être compétent pour trancher l’ensemble des demandes et points litigieux
soulevés au cours de la procédure arbitrale dérivant tant du contrat initial que du
Protocole s’y rapportant ».

Ensuite, en ce qui concerne la question du droit applicable au contrat de vente, l’Arbitre

unique soutient ce qui suit:
« L'article 5.1 du Protocole d 'Accord Transactionnel désigne le droit matériel
français comme droit applicable. Le contrat initial de vente ne contient aucune
indication sur le droit applicable.
En application de l 'acte de mission, le Tribunal arbitral est appelé à déterminer
le droit applicable au contrat de vente. Il observe que dans leurs conclusions
respectives les parties se sont toutes les deux référées au droit français et aucune
d'entre elles n’a soulevé d’objections à cet égard ni invoqué un autre droit. D'une
part, [l’État] ne s‘est nullement prévalue des titres de compétence que pouvait faire
valoir le droit de l'État pour régir la vente. D’autre part, le demandeur ne s’est
point prévalu de la compétence du droit des Émirats Arabes Unis au titre de la loi
de lieu de résidence du débiteur de la prestation la plus caractéristique. Enfin,
aucune des parties n ’a invoqué la compétence éventuelle d’un droit tiers. De ce
fait, le Tribunal arbitral considère que les parties ont entendu implicitement, mais
sans équivoque, soumettre le contrat de vente au droit français. Û considère qu 'un
tel choix est valable et s’impose à lui, les parties ayant la possibilité de désigner le
droit applicable à leur contrat à tout moment, même postérieurement à sa conclu¬
sion et, y compris au cours de la procédure arbitrale. Il estime, en outre, que
l'application du droit français se justifie objectivement en raison des liens qui
unissent les deux accords et la nécessité, à défaut de volonté contraire, d’assurer
aux rapports contractuels une unité de traitement en le soumettant à une seule et
même loi.
Toutefois, le Tribunal arbitral constate qu’aucune des parties n’a invoqué
l'application des dispositions de la Convention de Vienne du 11 avril 1980 sur
la vente internationale de marchandises. Ces dispositions sont en ejfet applicables
au titre du droit français depuis la ratification parla France de ladite convention et
son entrée en vigueur. Le Tribunal arbitral n 'en fera cependant pas application. En
effet, les parties ont la faculté d'exclure l'application de la Convention de Vienne.
Et, en conformité avec la jurisprudence française (Cass. lre civ., 25 oct. 2005: Rev.
crit. DIP 2006, p. 373, note D. Bureau), il interprète leur comportement
procédural, à ce sujet, dans le sens de l'exclusion. Il en est d’autant plus ainsi
que les parties ont choisi un droit proche du étroit [de l ’État] ce qui ne serait plus le
cas s'il fallait faire application de la Convention de Vienne à laquelle l État [ . . , ]
n'a pas adhéré. Le Tribunal Arbitral fera donc application, au contrat de vente,
uniquement des dispositions du droit interne français, les seules à avoir été invo¬
quées par les parties, à l’exclusion de celles prévues à la Convention de Vienne.
Dans tous les cas cependant, le Tribunal arbitral fera application, pour la
résolution du litige, des dispositions de l’article 17.2 du règlement d'arbitrage
de la CCI et tiendra compte des stipulations contractuelles et des usages du com¬
merce ».
En outre, l’Arbitre unique, quant à la question de l’existence du Protocole transaction¬
nel, analyse avec davantage d’attention la question de savoir si un État peut invoquer son
droit interne pour échapper à l’application d’une convention d’arbitrage internationale. Sur
cette question, il écrit:
« Pour expliquer pourquoi aucun accord transactionnel n 'a pu être réalisé, l’État
se prévaut des termes de l 'article [XX] de la loi [XXX] selon lequel « tout décret,
tout arrêté, toute convention et de manière générale toute mesure, de quelque
nature qu 'elle soit, susceptible d’engager les finances publiques doit être revêtue
du contreseing du ministre des finances ». Le Tribunal arbitral estime que la
généralité des termes utilisés par la loi rend vraisemblable l'exigence du contrese¬
ing du ministre de l'Economie dès lors que les finances publiques sont engagées.

■>
î
S
s
Toutefois, ces dispositions ne sauraient être, dans tous les cas, opposables à des
partenaires étrangers. Cela serait le cas, dans une relation internationale de droit
privé, si parson comportement, la partie étatique a pu convaincre, son partenaire,
de l'existence de son consentement et de la perfection de l'accord transactionnel.
C’est donc au vu des circonstances propres à l'espèce que l'arbitre doit se
prononcer sur ce point. Les éléments de fait portés à la connaissance du Tribunal
arbitral montrent clairement que le demandeur n’a pu légitimement croire que le
Directeur du Cabinet Présidentiel pouvait valablement engager seul l’État.
L'ensemble des relations, et notamment le contrat principal ainsi que l’avenant,
n’ont été signés, du côté de l’Etat, que par le ministre de l'Economie. Dans l'accord
transactionnel préparé parses soins, le demandeur a, de lui-même, prévu l’appro¬
bation du ministre de l 'Economie. Toute l 'insistance du demandeur pour obtenir la
V’ signature du ministre de l 'Economie et des finances montre clairement que son
accord dûment formalisé par sa signature était, à ses yeux,_ nécessaire à la per¬
* fection de l 'accord. Dans sa lettre adressée au ministre de l Economie, le Directeur
du Cabinet Présidentiel lui demande son approbation attestant par là de la néces¬
sité de son intervention et de son accord [ . . . ]
De ce qui précède, le Tribunal arbitral est convaincu que l État n 'a pas donné
son consentement à la transaction et n 'en a pas accepté les termes tels que proposés
par le demandeur. Il estime, de ce fait, qu'aucun accord transactionnel n 'a été
conclu entre les parties au litige.
Cette conclusion rend naturellement sans objet l'examen de la validité de
l’accord transactionnel ».
De surcroît, l’Arbitre unique, après avoir décidé que le Protocole transactionnel n’a
jamais été formé (ce qui le conduit à rejeter la demande principale) et que le seul contrat
de l’espèce est le contrat de vente, examine la question de sa validité au regard de l’alléga¬
tion que Monsieur H et l’ancien ministre de l’Economie, Monsieur MM, auraient commis
des actes de corruption s’y rapportant. Il conclut ce qui suit:
« Le Tribunal arbitral ne peut méconnaître l’objection de nullité pour illicéité de
l’objet, s'agissant notamment d'une nullité pour corruption. Un tel chef de nullité
devrait pouvoir être invoqué d'office par l'arbitre et doit, à plus forte raison, être
examiné lorsque l'une des parties l'évoque. L'Etat soutient, à cet égard, que
l'accord transactionnel est nid dans la mesure où il est relatif à un contrat principal
lui-même illicite. A ce titre, la défenderesse invoque deux arguments. Le premier se
rapporte à la personne du Ministre de l'économie signataire du contrat de vente
[...]; le second est tiré de l'annexe A du contrat et de l 'annexe A de l'avenant.
Ces dernières chiffrent la rémunération d’une prestation qui ne serait pas, aux
termes de l’article 9-4 du contrat, à la charge du demandeur. Une telle rémunér¬
ation ne serait rien d’autre qu 'un habillage à des rétro-commissions illicites.
Le Tribunal arbitral adhère pleinement à la solution de principe annulant tout
contrat qui serait entaché d'illicéité. Il y a là en effet un principe d’ordre public
transactionnel, que ne contredisent pas les droits nationaux. Toutefois, il estime
devoir s 'appuyer sur des éléments convergents et sérieux rendant plus que vrai¬
semblable ou quasi certaine la corruption. L 'Etat invoque la condamnation par les
juridictions pénales [de l’État de Monsieur MM] ainsi qu’une sentence arbitrale,
dans laquelle [l’État] s 'était prévalu du même chef d 'annulation. Ce faisant, l 'Etat
[...] ne rapporte pas la preuve que le contrat, dont la nullité est invoquée, est
entaché de corruption. Le Tribunal arbitral estime que la défenderesse se devait de
fournir des éléments propres au contrat litigieux pouvant convaincre de sa nullité.
Le Tribunal arbitral ne peut, à cet égard, se satisfaire des éléments fournis pour en
déduire nécessairement la nullité du contrat particidier qu’il examine. Une telle
déduction, si elle était admise, serait en effet de nature à remettre en cause

l’ensemble des actes accomplis, dans l'exercice de ses fonctions, par [Monsieur
MM]. La condamnation pénale du ministre de l'Économie ne pouvait servir que
comme un indice qui, à lui seul, est insuffisant pour prouver l 'illicéité du contrat
litigieux. Il devait être corroboré par d'autres indices convergents.
L’argument tiré de la rémunération d'une prestation qui ne serait pas à la
charge du demandeur et auquel celui-ci ne répond pas de façon suffisante,
n'emporte pas non plus la conviction du Tribunal arbitral. En elle-même, l’affec¬
tation d 'une somme figurant dans l 'annexe A du contrat et reprise dans l 'annexe A
de l 'avenant, à une prestation qui n'est pas à la charge du vendeur, ne peut suffire
pour établir l 'illicéité de l 'objet. Elle n 'atteste aucunement de l 'affectation de cette
somme à des rémunérations illicites.
Le Tribunal arbitral est conscient des difficultés qu‘il y a à rapporter la preuve
de la corruption, opération par définition occulte, mais il estime que les arguments
avancés par la défenderesse sont insuffisants pour en établir la réalité. Les élé¬
ments fournis ne sont en effet nullement corroborés par d’autres faits (conditions
anormales de la conclusion des contrats, indication des bénéficiaires des paie¬
ments illicites, lieu de paiements, caractère manifestement excessif de la rémunér¬
ation du vendeur, rôle joué par le vendeur etc.). Le Tribunal arbitral fait aussi
observer que la rubrique aujourd’hui contestée par l’État a recueilli par deux fois
son consentement. La première fois lors de la conclusion du contrat, la seconde lors
de l ’établissement de l’avenant. Il serait alors illégitime et néfaste pour la sécurité
juridique, de permettre à la partie qui, par ailleurs, n’a pu établir l’affectation
illicite de cette somme, de revenir sur son consentement et de remettre en cause le
caractère global et forfaitaire du prix.
Pour ces raisons, le Tribunal Arbitral ne peut tenir le contrat de vente pour nul
et le considère valable et ce indépendamment du fait que la défenderesse ne
demande pas formellement la nullité du contrat de vente ni ne se prévaut des
conséquences juridiques qui lui sont habituellement rattachées ».
Enfin, après avoir rejeté la demande reconventionnelle de l’État basée sur le contrat de
vente (demande qui ne sera pas commentée dans le cadre circonscrit de la présente Note),
l’Arbitre unique considère la question de la répartition des frais de l’arbitrage. A ce dernier
égard, il soutient que:
« Le demandeur réclame la condamnation de l’État au paiement de la somme de
250.000 €au titre du remboursement des frais engagés dans le cadre de l’instance
arbitrale, ainsi que le remboursement de tous les frais d 'arbitrage. La défenderesse
demande, sans les chiffrer, la condamnation de [Monsieur H] à payer l’intégralité
des frais d'arbitrage et à mettre à sa charge les honoraires des avocats de [l’État],
Le Tribunal arbitral rappelle le contenu de l'article 31 du Règlement
d'arbitrage de la CCI qui octroie aux arbitres une large marge d'appréciation
en matière de liquidation des coûts de l'arbitrage.
Il indique que les frais de l'arbitrage fixés par la Cour internationale
d'arbitrage de la CCI (soit les frais et honoraires de l’arbitre ainsi que les frais
administratifs de la CCI), conformément à l'article 31(1) du Règlement d’arbitrage
de la CCI, se montent à 95.000 US$, somme entièrement réglée par la demander¬
esse à la CCI.
H estime, au vu des circonstances de l'espèce, qu'il n'existe pas de raisons
justifiant que ces frais et dépenses soient supportés par l’une plutôt que par
l 'autre des deux parties, et décide que celles-ci doivent supporter à parts égales
les frais de l'arbitrage fixés par la Cour. Que pour les mêmes raisons, chaque
partie doit supporter pour ce qui la concerne tous autres frais et dépenses
encourus, aucune des parties n’ayant présenté de document établissant la réalité
et le montant de ces dépenses.

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Toutefois, et dans la mesure où la défenderesse n’a pas honoré sa quote-part des
frais d 'arbitrage auprès de la CCI, celle-ci doit être condamnée au remboursement,
à la demanderesse, de la somme dont elle est débitrice, soit 47.500 US$ ».
NOTE. I. —Il est d’abord question, dans la sentence, d’une vérification par
l’Arbitre unique de sa propre compétence pour trancher le litige au fond.
Aucune des parties, néanmoins, ne contestait la compétence de l’Arbitre unique pour ce
faire.
L’État n’avait certes pas participé dans l’arbitrage dès ses premiers jours et échanges, et
la Cour internationale d’arbitrage de la CCI (ci-après la « Cour ») avait décidé, en absence
d’une réponse à la demande d’arbitrage de la part de l’État et conformément à l’article 6(2)
•S' du Règlement d’arbitrage de la CCI de 1998 (ci-après le « Règlement ») (« [s] i le défen¬
P deur ne répond pas à la demande comme il est prévu à l’article 5, ou lorsqu 'une des
■t.
parties soulève un ou plusieurs moyens relatifs à l'existence, à la validité ou à la portée de
la convention d’arbitrage, la Cour peut décider, sans préjuger la recevabilité ou le bien
fondé de ce ou ces moyens, que l'arbitrage aura lieu si, prima facie, elle estime possible
l'existence d’une convention d'arbitrage visant le Règlement [...]» [notre souligne¬
ment]), que l’arbitrage devait avoir lieu. En a donc résulté l’obligation pour l’Arbitre
unique, en accord avec la disposition transcrite ci-dessus, de prendre toute décision sur
sa propre compétence.
L’obligation imposée sur les arbitres par le Règlement de vérifier leur propre compé¬
tence lorsque la défenderesse n’a pas soumis de réponse à la demande d’arbitrage pourrait
faire l’objet de critiques. D’aucuns, pragmatiques, pourraient arguer, en effet, que l’article
6(2) du Règlement crée un problème là où il n’y en a point. Si aucune des parties ne conteste
la compétence arbitrale, pourquoi l’institution d’arbitrage devrait-elle, par le biais de son
règlement d’arbitrage, obliger les arbitres à vérifier, sua sponte, leur propre compétence?
Malgré cette position pragmatique, la CCI a conservé cette obligation à l’article 6(3) de
son Règlement d’arbitrage qui entrera en vigueur à compter du 1 janvier 2012 (ci-après le
« Règlement de 2012 »). La raison, nous semble-t-il, en est simple. La CCI a toujours voulu
s’assurer, à l’instar de ce qui est prévu à l’article 35 du Règlement (Régi, de 2012, art. 41),
que la sentence arbitrale soit susceptible de sanction légale. Il serait, en effet, totalement
inefficace de mener un arbitrage, où la défenderesse ne participe pas, jusqu’à son terme si
celle-ci, à travers un recours en annulation ou une opposition à l’exécution de la sentence
arbitrale, pouvait faire annuler ou s’opposer effectivement à la sentence arbitrale au motif,
par exemple, de l’inexistence ou de l’invalidité de la convention d’arbitrage.
L’Arbitre unique a donc dû procéder, dans l’affaire d’espèce, à une analyse de sa propre
compétence. Son analyse, néanmoins, laisse le lecteur de la sentence sur sa faim.
D’une part, l’Arbitre unique décide de traiter la question de sa compétence avant de
trancher la question de savoir si le Protocole transactionnel existe et est valable. Il justifie sa
méthode en affirmant que «[...] le fait pour la défenderesse d’avoir soulevé la nullité du
Protocole n’est pas de nature à remettre en cause sa compétence. Outre le fait qu’aucune
contestation n’a été avancée de ce chef, il est admis que la convention d’arbitrage est
autonome par rapport au contrat principal et qu’en conséquence la nullité éventuelle de
celui-ci n’entraîne pas ipso facto celle de l’accord compromissoire [...]».
Le principe de l’autonomie de la convention d’arbitrage n’était pourtant pas, à notre
avis, la bonne prémisse pour entamer l’analyse de la compétence arbitrale. La partie
défenderesse, en effet, alléguait l’inexistence du Protocole transactionnel, même si elle
l’a qualifiée, du fait des catégories du Code civil français, de question d’invalidité ou de
nullité dudit Protocole. Toutefois, tel que cela a été soutenu par Pierre Mayer (P. Mayer,
Les limites de la séparabilité de la clause d’arbitrage: Rev. arb. 1998, p. 359 et s.),
l’inexistence du contrat principal emporterait nécessairement l’inexistence de la clause

compromissoire incorporée dans celui-ci. Si en effet le consentement, c’est-à-dire cette
acceptation d’une offre de contracter, ne s’est pas formé en relation avec le contrat
principal, comment pourrait-il s’être formé à l’égard de la clause compromissoire incor¬
porée dans celui-ci? D’un point de vue pragmatique, néanmoins, il semblerait plausible
d’arguer, contre la position de Pierre Mayer, que, même dans des situations où l’une des
parties alléguait l’inexistence du contrat principal, les arbitres seraient compétents pour
décider sur l’existence ou l’inexistence dudit contrat parce que, tout bonnement, la lex
arbitriï l’a voulu ainsi. En d’autres termes, l’État hôte de l’arbitrage est toujours en mesure
de décider, par le biais de son organe législatif, voire, selon le système juridique, judiciaire,
que des arbitres peuvent trancher des litiges concernant l’existence du contrat principal.
Suivant ce pragmatisme, l’Arbitre unique se cantonne à laisser l’analyse de l’existence du
Protocole transactionnel pour un moment postérieur de la sentence et à examiner les deux
conventions d’arbitrage de l’espèce, celle du contrat de vente et celle du Protocole trans¬
actionnel, afin de déterminer si elles sont compatibles et fondent sa compétence. À cet
égard, l’Arbitre unique considère que «[...] les deux conventions d’arbitrage contenues
dans le contrat initial et dans le Protocole Transactionnel prévoient le recours à l’arbitrage
sous les auspices de la CCI et en application de son règlement. Il observe toutefois des
différences de rédaction entre les deux stipulations. Ainsi, alors que l’article 13 du contrat
prévoit que l’arbitrage doit avoir lieu à Londres, Paris ou Genève, l’article 5 du Protocole est
resté silencieux sur le siège arbitral. Le Tribunal arbitral estime cependant que ces différ¬
ences n’ont aucune incidence sur sa compétence. En effet, aucune des parties n’a soulevé
l’objection d’incompétence ni contesté le déroulement de l’arbitrage à Paris, (lieu fixé par
décision de la Cour Internationale d’Arbitrage de la CCI). Il note aussi que les parties ont,
par la signature de l’acte de mission, ainsi que par leur participation à la procédure
d’arbitrage, reconnu la compétence du Tribunal arbitral. Il en est d’autant plus ainsi que
les deux parties se sont prévalu des obligations et stipulations contenues dans les deux actes
conventionnels ». Il est pourtant regrettable que l’Arbitre unique n’ait pas précisé, confor¬
mément à une pratique de la Cour bien établie (A.-M Whitesell et E. Silva-Romero,
L'arbitrage à pluralité de parties ou de contrats: l'expérience récente de la Chambre de
commerce internationale in L’arbitrage complexe: Bull. Cour CCI, suppl. spécial, 2003,
p. 7 et s. -S. Greenberg, J. R. Feris et Ch. Albanesi, Consolidation, Joinder, Cross-Claims,
Multiparty and Multicontract Arbitration: Recent ICC Experience in Dossier of the ICC
Institute of World Business Law: Multiparty Arbitration, 2010, p. 161 et s.\ que les con¬
ventions d’arbitrage de l’espèce n’étaient pas incompatibles du fait que, dans les deux cas et
même si l’une des clauses compromissoires désignait trois villes comme possible siège de
l’arbitrage et l’autre était silencieuse à ce propos, la Cour devait, conformément à l’article
14(1) du Règlement (« [l]a Cour fixe le lieu de l 'arbitrage à moins que les parties ne soient
convenues de celui-ci »), fixer le lieu de l’arbitrage (Régi, de 2012, art. 18).
D’autre part, nous sommes d’avis que l’Arbitre unique aurait pu, étant donné que le
défendeur était un État souverain, faire une analyse plus poussée de sa compétence afin de
s’assurer que sa sentence soit susceptible de sanction légale et ainsi se demander si l’État en
question pouvait compromettre. D’un côté, il aurait pu dire que, conformément à la lex
arbitrii, c’est-à-dire le droit français de l’arbitrage, les États et les autres personnes morales
de droit public sont tenus par les conventions d’arbitrage internationales qu’ils passent. Sur
ce point, l’Arbitre unique aurait pu se référer, par exemple, à une jurisprudence arbitrale
abondante (Affaire CCI n° 2321 de 1974: Recueil des sentences arbitrales de la CCI, 1. 1,
p. 8 et s.; Affaire CCln° 1939 de 1971: JDI 1975, p. 919 et s.; Affaire CCI n° 4381 de 1986:
JDI 1986, p. 1103 et s.) ainsi qu’aux arrêts Galakis (Cass. lre civ., 2 mai 1966: JDI 1966,
p. 648 et s., note P. Level; Rev. crit. DIP 1967, p. 553 et s., note B. Goldman; Dalloz 1966,
p. 575 et s., note J. Robert) et Gatoil (CA Paris, ¡7 déc. 1991: Rev. arb. 1993, p. 281 et s.,
note H. Synvet). De l’autre, l’Arbitre unique aurait également pu examiner, ex abundante
cautela, s’il existait des règles de l’Etat défendeur que celui-ci aurait pu invoquer pour
échapper à l’application des conventions d’arbitrage internationales de l’espèce. Comme

3

on le verra plus bas, certaines de ces règles pourraient être invoquées par l’État pour
objecter à la compétence des arbitres.
II. —
de vente.
L’Arbitre unique se livre ensuite à la détermination du droit applicable au contrat
En l’espèce, le Protocole transactionnel désignait expressément le droit français comme

applicable tandis que le contrat de vente ne comprenait aucune clause d'electio juris.
À l’instar de la question sur la compétence arbitrale, celle du droit applicable au contrat
de vente n’était pas non plus controversée entre les parties. Malgré le fait que l’un des
points litigieux à résoudre identifié dans Pacte de mission était que « [l]e tribunal arbitral
déterminera, le droit applicable au contrat de vente », les parties n’ont toutefois pas adopté
des positions contradictoires sur la question et ont plutôt fondé tous leurs arguments con¬
9 cernant le contrat de vente sur la base du droit français.
K L’Arbitre unique, afin de remplir exactement sa mission, a décidé d’interpréter la con¬
duite décrite des parties.
?
¿ D’une part, l’Arbitre unique voit dans la conduite des parties à l’égard du droit appli¬
cable au contrat de vente un choix implicite du droit français comme applicable à celui-ci. Il
considère, en effet, que, « [e]n application de l’acte de mission, le Tribunal arbitral est
appelé à déterminer le droit applicable au contrat de vente. Il observe que dans leurs
conclusions respectives les parties se sont toutes les deux référées au droit français et
aucune d’entre, elles n’a soulevé d’objections à cet égard ni invoqué un autre droit.
D’une part, [l’État] ne s’est nullement prévalue des titres de compétence que pouvait
faire valoir le droit de l’État pour régir la vente. D’autre part, le demandeur ne s’est
point prévalu de la compétence du droit des Émirats Arabes Unis au titre de la loi de
lieu de résidence du débiteur de la prestation la plus caractéristique. Enfin, aucune des
parties n’a invoqué la compétence éventuelle d'un droit tiers. De ce fait, le Tribunal arbitral
considère que les parties ont entendu implicitement, mais sans équivoque, soumettre le
contrat de vente au droit français. Il considère qu’un tel choix est valable et s’impose à lui,
les parties ayant la possibilité de désigner le droit applicable à leur contrat à tout moment,
même postérieurement à sa conclusion et, y compris au cours de la procédure arbitrale. Il
estime, en outre, que l’application du droit français se justifie objectivement en raison des
liens qui unissent les deux accords et la nécessité, à défaut de volonté contraire, d’assurer
aux rapports contractuels une unité de traitement en le soumettant à une seule et même loi ».
Ce raisonnement de l’Arbitre unique s’inscrit tout d’abord dans la ligne de pensée des
arbitres CCI. La méthode qu’il a choisie est, en d’autres termes, reconnue dans la juris¬
prudence arbitrale CCI. Les arbitres CCI ont, en effet, eu recours à maintes reprises à une
théorie du choix implicite du droit applicable dans des affaires similaires au cas d’espèce. A
cet égard, Emmanuel Gaillard écrit que « [r]ien n’empêcherait donc les arbitres de découv¬
rir, dans l’attitude commune des parties, un accord implicite des parties sur la loi appli¬
cable, par exemple lorsque celles-ci argumentent sur la base du même droit, même si elles
n’ont pas expressément conclu à l’application de ce droit (comp. sentence CCI rendue en
1975 dans l'affaire 1434, dans laquelle [ . . . ] le tribunal arbitral a longuement raisonné
sur la loi applicable pour parvenir à la conclusion de l'existence d 'un choix tacite en faveur
de la loi à laquelle les parties s'étaient référées dans leurs écritures: JDI 1975, p. 978, obs.
Y. Derains ou sentence CCI rendue en 1975 dans l’affaire 2438: JDI 1976, p. 969, obs.
Y. Derains, qui a donné lieu, à tort, à un raisonnement analogue en présence d’un accord des
parties » (E. Gaillard, JCl. Droit international, 1996, Fase. 586-9-1: Arbitrage commercial
international — Sentence arbitrale — Droit applicable au fond du litige).
D’autre part, l’Arbitre unique, examinant encore une fois la conduite des parties, décide
d’exclure l’application de la Convention de Vienne du 11 avril 1980 sur la vente inter¬
nationale de marchandises. Dans ce sens, l’Arbitre unique soutient que «[...] le Tribunal
Arbitral constate qu’aucune des parties n’a invoqué l’application des dispositions de la
Reprinted fiom the Clunet 953

Convention de Vienne du IJ avril 1980 sur la vente internationale de marchandises. Ces

dispositions sont en effet applicables au titre du droit français depuis la ratification par la
France de ladite convention et son entrée en vigueur. Le Tribunal Arbitral n’en fera cependant
pas application. En effet, les parties ont la faculté d’exclure l’application de la Convention de
Vienne. Et, en conformité avec la jurisprudence française (Cars. ln civ., 25 oct. 2005: Rev. crit.
DIP 2006, p. 373, note D. Bureau), il interprète leur comportement procédural, à ce sujet, dans
le sens de l’exclusion. Il en est d’autant plus ainsi que les parties ont choisi un droit proche du
droit [de l’État] ce qui ne serait plus le cas s’il fallait faire application de la Convention de
Vienne à laquelle l’Etat [ . . . ] n’a pas adhéré. Le Tribunal arbitral fera donc application, au
contrat de vente, uniquement des dispositions du droit interne français, les seules à avoir été
invoquées par les parties, à l’exclusion de celles prévues à la Convention de Vienne ». Cette
décision de l’Arbitre unique doit être approuvée également. Force est cependant de constater
que l’Arbitre unique ne fait aucune analyse du contrat de vente à la lumière des dispositions
concernant le champ d’application de la Convention de Vienne.
Somme toute, la détermination du droit applicable au contrat de vente s’est avéré être
complètement inutile. L’Arbitre unique, en effet, ne base en fin de compte aucune de ses
décisions sur des règles du droit français pour trancher le différend concernant le contrat de
vente. On peut donc se demander si l’Arbitre unique, au lieu de se plonger dans une analyse
stérile, n’aurait pu, voire dû, se limiter, d’une manière beaucoup plus pragmatique, à
préciser que la détermination du droit applicable au contrat de vente était, dans le cas
d’espèce, sans conséquence.
—
III. Peut-être la question la plus intéressante de cette affaire a-t-elle trait à l’existence
du Protocole transactionnel.
L’Arbitre unique, après avoir analysé les pièces du dossier, parvient à la conclusion que
le consentement ne s’est jamais formé à l’égard dudit Protocole.
Néanmoins, il rejette un argument de l’État qui aurait, à notre avis, dû être accepté.
L’État, en effet, alléguait que l’une de ses lois supposait que, pour être valable, le Protocole
transactionnel devait être revêtu du contreseing du ministre de l’Économie du fait que les
finances publiques de l’État étaient engagées par la conclusion dudit Protocole. Le min¬
istre, en l’espèce, n’avait pas approuvé le Protocole.
Pour rejeter l’argument décrit ci-dessus, l’Arbitre unique écrit dans sa sentence que, «
[tjoutefois, ces dispositions ne sauraient être, dans tous les cas, opposables à des partenaires
étrangers. Cela serait le cas, dans une relation internationale de droit privé, si par son
comportement, la partie étatique a pu convaincre, son partenaire, de l’existence de son
consentement et de la perfection de l’accord transactionnel ».
Ainsi l ’Arbitre unique fait-il une application automatique et donc irréfléchie de la règle
selon laquelle un État ou, plus généralement, une personne morale de droit public ne saurait
invoquer une disposition de son droit interne pour échapper à une convention d’arbitrage
international. Il semblerait que l’Arbitre unique, du moins implicitement, trouve le fonde¬
ment de la règle dans des principes de la lex mercatoria. Il aurait plutôt dû, à notre avis,
baser sa décision sur le droit fiançais applicable en l’espèce.
D’un côté, on sait que cette règle trouve son origine dans les sentences des arbitres CCI
(J. Paulsson, May a state invoke its internal law to repudiate consent to international
commercial arbitration? Reflections on the Benteler v. Belgium Preliminary Award
(1986): 2 Arbitration International 90. - Y. Derains, Les tendances de la jurisprudence
arbitrale internationale: JDI 1993, p. 829 et s. -E. Gaillard et J. Savage (eds.), Fouchard,
Gaillard, Goldman On International Commercial Arbitration, The Hague: Kluwer
International Law, 1999, p. 325 et s.) et serait, pour certains (E. Gaillard et J. Savage,
op. cit.), partie intégrante de la lex mercatoria. L’appartenance de cette règle à la lex
mercatoria reste pour nous un mystère.
954 Reprinted from the CUmet

_ :••-- - <
D’aucuns, sans apporter une explication convaincante, voient le fondement de cette

règle dans l’un des piliers de la lex mercatoria, à savoir le principe de la bonne foi
(R. Briner, Commentary on Article ¡77 in S. V. Berti (ed.), International Arbitration in
Switzerland: An Introduction to and a Commentary on Articles 176-194 of the Swiss
Private International Law Statute, The Hague: Kluwer International Law, 2000,
p. 324). La proposition qui est sans cesse répétée lors de l’exposé de cette position est
qu’« une personne morale de droit public, y compris un Etat souverain, agirait de mauvaise
foi si, dans un premier temps, elle passait une convention d’arbitrage internationale et, dans
un second temps, c’est-à-dire lorsque un litige estdéjàné, elle essayait de ne pas s’y tenir en
invoquant une disposition — notamment d’inarbitrabilité du litige - de son droit interne ».
La règle, telle qu’expliquée conformément à ce premier fondement, devient sophisme. Elle
présuppose, en effet, que la personne morale de droit public soit la seule partie susceptible
■j s d’agir de mauvaise foi, La bonne foi comprend, toutefois, une dimension épistémologique.
T Est de bonne foi, en d’autres termes, celui qui ne savait pas que son comportement était
contraire au droit. Qu’en est-il, par conséquent, des situations où le cocontractant privé
connaissait l’existence, par exemple, de la règle d’inarbitrabilité et a, malgré ce fait, conclu
une convention d’arbitrage international avec une personne morale de droit public qui,
selon sa propre loi, ne pouvait pas compromettre? Qu’en est-il, par ailleurs, de l’hypothèse
où le cocontractant privé aurait dû connaître l’interdiction qui pesait sur une personne
morale de droit public de passer des conventions d’arbitrage international? Nul ne devrait
oublier que, selon certains (E. Loquin, La réalité des usages du commerce international:
Revue internationale de droit économique, 1989, p. 163 et s. — LordMustill, The New Lex
Mercatoria: The First Twenty Five Years in Liber Amicorum for The Rt. Hon. Lord
Wilberforce, Oxford: Clarendon, 1987, p. 149 et s. — E. Gaillard et J. Savage, op. cit.
p. 818), il y aurait un autre principe de la lex mercatoria selon lequel les marchands
internationaux sont présumés être des professionnels compétents. Nous croyons qu’un
commerçant international a un devoir de diligence à l’encontre de son cocontractant public
et le devoir de se renseigner, parmi d’autres choses, sur la possibilité que celui-ci aurait de
compromettre.
D’autres, sans en faire la démonstration non plus, trouvent le fondement de la règle dans
l’ordre public réellement international (J. Paidsson, May a state invoke its internal law to
repudiate consent to international commercial arbitration? Reflections on the Benteler v.
Belgium Preliminary Award, op. cit. — Y. Derains, op. cit.). Sur ce plan, les jeux de mots
atteignent des sommets. Nul ne sait véritablement ce que « ordre public réellement
international » veut dire. On dit, par exemple, que la bonne foi est une composante de
l’ordre public réellement international. On ajoute que le principe pacta sunt servanda se
trouve au cœur dudit ordre et qu’il serait violé si une personne morale de droit public
pouvait échapper à l’arbitrage international.
En définitive, les références à la bonne foi et à l’ordre public réellement international
constituent des fondements par affirmation et non pas par démonstration. Avec le prag¬
matisme propre de l’arbitrage international, on utilise la règle et ses fondements pour
assurer l’efficacité du système arbitral lorsqu’une personne morale de droit public est
impliquée.
D’autre part, on sait également que cette règle a ensuite été adoptée par des droits
positifs tels que, par exemple, le droit français (CA Paris, 17 déc. 1991, Gatoil: Rev.
arb. 1993, p. 281 et s., note H. Synvet), le droit suisse (L. suisse sur le droit international
privé, art. 177(2). — E. Silva-Romero, Requiem for the Ride of Article 177(2) of the Swiss
Private International Law Act in Liber Amicorum in honour of Robert Briner, 2005, p. 825
et s.) et le droit espagnol (L. espagnole sur l'arbitrage, art. 2(2)). Lorsque l’arbitrage
international a lieu dans ces juridictions, la question du fondement de la règle ne se
pose plus. Le législateur ou le juge ont tout simplement décidé d’en faire une composante
du droit positif.

Étant donné que le siège de l’arbitrage était Paris, l’Arbitre unique aurait pu faire
référence à l’arrêt Gatoil dans sa décision. Il est, néanmoins, probable que les parties
n’y ont pas fait référence.
Somme toute, cette discussion n’était pas non plus nécessaire étant donné que, en fin de
compte, le Protocole transactionnel, préparé par Monsieur H, prévoyait lui-même que
l’approbation du ministre de l’Économie était nécessaire pour que l’État donne son
consentement.
IV. — Il est aussi à remarquer l’intéressante analyse que l’Arbitre unique fait des
allégations de corruption dans cette affaire. Il conclut que « [l]e Tribunal arbitral adhère
pleinement à la solution de principe annulant tout contrat qui serait entaché d’illicéité. Il y a
là en effet un principe d’ordre public transactionnel, que ne contredisent pas les droits
nationaux. Toutefois, il estime devoir s’appuyer sur des éléments convergents et sérieux
rendant plus que vraisemblable ou quasi certaine la corruption [...]».
D’une part, l’Arbitre unique, comme d’autres arbitres CCI l’ont fait de par le passé
0Sentence du 19 août 1988, Affaire CCI rt° 5622 (extraits): Rev. arb. 1993, p. 327 et s.,
Broker v. Contractor, Sentence finale dans l'affaire CCI n° 5622 de 1988 in Yearbook
Commercial Arbitration, 1994, vol. XIX, p. 105 et s.), réaffirme le principe de l’apparte¬
nance de la lutte contre la corruption à l’ordre public réellement international.
D’une manière implicite, l’Arbitre unique qualifie l’analyse des allégations de corruption
comme une question de fond et non pas comme une question concernant sa compétence.
Même si la majorité des auteurs (A. Sayed, Corruption in International Trade and
Commercial Arbitration, The Hague: Kluwer International, 2004. - A. Kosheri et
Ph. Leboulanger, L’arbitrage face à la corruption et aux trafics d’influence: Rev. arb.
1984, p. 3ets.-J. Rosell et D. Pragner, Illicit Commissions and International Arbitration:
Arb. Int. (1999) 329.- H. Arfazadeh, Considérations pragmatiques sur la compétence relative
de l‘arbitre et du juge en matière de corruption: Bull. ASA 2001, p. 683 et s. -R. H. Kreindler,
Aspects of Illegality in the Formation and Performance of International Contracts Int ALR
(2003) 1. -A. Crivellaro, Arbitration Case Law on Bribery: Issues of Arbitrability, Contract
Validity, Merits and Evidence in Arbitration: Money Laundering, Corruption and Fraud -
Dossiers of the ICC Institute of World Business Law, Paris, ICC, 2003, p. 109 ets.) s’accorde
pour dire que les arbitres sont compétents pour déclarer la nullité d’un contrat entaché par la
corruption, nous persistons à croire que, lorsque deux ou plusieurs parties commettent des
actes de corruption par rapport à un contrat comprenant une clause compromissoire, les
arbitres devraient, comme l’a fait jadis le juge Lagergren (Affaire CCI n° 1100, Argentine
engineerv. British company, 1987, 3 Arb. Int. 282, note G. Wetter; [1994] 10 Arb. Int. 277;
Yearbook Commercial Arbitration, 1996, vol. XXI, p. 47 ets.), se déclarer incompétents.
Dans les mots de Lagergren, « [a]fler weighing all the evidence I am convinced that a case
such as this, involving such gross violations of good morals and international public policy,
can have no countenance in any court either in the Argentine or in France or, for that matter,
in any other civilised country, nor in any arbitral tribunal. Thus, jurisdiction must be declined
in this case. It follows from the foregoing, that in concluding that I have no jurisdiction,
guidance has been sought from general principles denying arbitrators to entertain disputes of
this nature rather than from any national rules on arbitrability. Parties who ally themselves
in an enterprise of the present nature must realise that they have forfeited any right to ask for
the assistance of the machinery of justice (national courts or arbitral tribunals) in settling
their disputes ». Il est important de souligner que la doctrine Lagergren a été - peut-être
inconsciemment - utilisée plus ou moins récemment par des arbitres agissant sous les
auspices du CIRDI (Inceysa Vallisoletana S.L. c/ El Salvador, aff. CIRDI «° ARB/03/26,
sentence du 2 août 2006, disponible à l’adresse http://italaw.uvic.ca/documents/
Inceysa_Vaisoletana_sp_001.pdf; World Duty Free Company Limited c/ Republique du
Kenya, aff. CIRDI n° ARB/00/7, sentence du 4 octobre 2006, disponible à l’adresse

---
iM
http://ita.law.uvic.ca/documents/VVDFv.KenycLiward.pdf; Mama Consortium Limited c!

Bulgarie, aff. CIRDI n° ARB/03/24, sentence du 27 août 2008, disponible à l’adresse
http://ita.law.uvic.ca/documents/PlamaBulgariaAward.pdf).
D’autre part, l’Arbitre unique précise que la preuve de la corruption est très exigeante. Il
faudrait, dit-il, avoir, même s’il reconnaît lui-même la difficulté d’apporter cette preuve, la
quasi-certitude de la corruption afin d’annuler le contrat.
Il semblerait que la seule preuve de corruption possible, étant donnée, pour des raisons
évidentes, l’absence de documents établissant la corruption, serait l’existence d’un témoig¬
nage très crédible en ce sens, voire le fait que l’un des individus suspectés d’actes de
corruption passe aux aveux.
V. — La décision de l’Arbitre unique quant à la répartition des coûts de l’arbitrage doit
enfin être critiquée.
L’Arbitre unique, après avoir rappelé la discrétion dont il jouirait, conclut, à cet égard,
V que « au vu des circonstances de l’espèce, [ . . . ] il n’existe pas de raisons justifiant que ces
frais et dépenses soient supportés par l’une plutôt que par l’autre des deux parties, [ . . . ]
celles-ci doivent supporter à parts égales les frais de l’arbitrage fixés par la Cour. Que pour
les mêmes raisons, chaque partie doit supporter pour ce qui la concerne tous autres frais et
dépenses encourus, aucune des parties n’ayant présenté de document établissant la réalité et
le montant de ces dépenses ».
D’un côté, il est vrai que les arbitres CCI ont une très large discrétion lorsqu’il s’agit de
prendre cette décision {sentences CCI n° 5285 de 1989, ICC International Court of
Arbitration Bull., vol. IV/ 1, 1993, p. 39; 5896 de 1992, ICC International Court of
Arbitration Bull., vol. IV/1, 1993, p. 40; 5987 de 1990, ICC International Court
of Arbitration Bull., vol. IV/1, 1993, p. 43; 6293 de 1990, ICC International Court of
Arbitration Bull., vol. IV/1, 1993, p. 46 et 7007 de 1992, ICC International Court of
Arbitration Bull., vol. IV/1, 1993, p. 46). Cette discrétion, néanmoins, n’est pas équivalente
à un manque de motivation. L’article 25(2) du Règlement (article 31(2) du Règlement de
2012) dispose que « la sentence doit être motivée ».
De l’autre, à la lecture de la décision de l’Arbitre unique quant aux frais de l’arbitrage, le
lecteur a l’impression qu’il n’a pas donné de motivation à son choix. A la lecture de la
Sentence, en effet, il aurait été peut-être plus juste de condamner Monsieur H à supporter
tous les coûts de la procédure arbitrale. Non seulement le demandeur n’a pas eu gain de
cause mais, aussi, il a basé sa demande sur un document, le Protocole transactionnel, auquel
l’État n’a jamais donné son consentement et dont les circonstances, même si cela n’a pas
été établi en l’espèce, laissent l’impression que des actes de corruption ont eu lieu entre
Monsieur H et Monsieur MM.
Nous ne pouvons que conclure en disant que c’est des décisions quant aux frais de
l’arbitrage comme celle-ci qui, de nos jours, dissuadent certains usagers traditionnels de
l’arbitrage de l’utiliser davantage.
E. S--R.

française)
L — Mesures conservatoires.
—
du tribunal arbitral.
— Saisine du juge étranger. Compétence
Article 23 du Règlement d’arbitrage de la CCI de 1998.
—
II. — Contrat. — Droit français. — Non-renouvellement du contrat. —
Article 442-6-1 du Code de commerce français. — Loi de police.
contractuel. — Obligation de bonne foi. Absence —
d’abus de droit.
Préavis —
Le différend est lié à un contrat de sous-licence gui n'a pas été renouvelé à l 'issue de son
terme.
Le litige porte principalement sur la question de savoir si la décision de la défenderesse
de ne pas renoicveler le contrat était valable au regard du droit français applicable au fond,
en considération de l’article L. 442-6-1-5° du Code de commerce français, du préavis
contractuel convenu entre les parties et l 'obligation de bonne foi.
Une société brésilienne (la demanderesse X) a conclu en 1995 un contrat de sous-licence
exclusive pour la fabrication de vêtements sous la marque d’une société française (la
défenderesse Y) pour une durée de deux ans expirant à la fin de l’année 1996. Le contrat
est reconduit tacitement pour la même période,, sauf dénonciation par Tune des parties
moyennant un préavis contractuel de six mois.
Par un courrier de juin 2006, la défenderesse a notifié à son co-contractant sa décision de
ne pas reconduire le contrat au 31 décembre 2006. La demanderesse a alors contesté cette
dénonciation et a demandé une compensation pour les dommages liés à la fin des rapports
contractuels.
Les parties ont tenté en vain de trouver un accord amiable si bien que la demanderesse a
saisi en septembre 2006 un tribunal civil brésilien afin d’obtenir des mesures conserva¬
toires à rencontre de la défenderesse, avant d’introduire en octobre 2006, une demande
d’arbitrage devant la Cour internationale d’arbitrage de la CCI (« la Cour »).
Le tribunal arbitral qui a été constitué en avril 2007, a établi l’acte de mission au terme
duquel il devait se prononcer sur i) la nécessité ou non de prononcer des mesures provi¬
soires en faveur de l’une ou de l’autre partie et ii) la validité de la dénonciation du contrat
par la défenderesse.
—
1 Mesures conservatoires
Préalablement à la saisine de la Cour, la demanderesse a saisi en septembre 2006 le juge
brésilien en vue d’obtenir des mesures conservatoires.
Par décision du 22 septembre 2006, modifiée le 6 octobre 2006, le juge a prononcé (i) la
suspension des effets du non-renouvellement du contrat entre les parties et une interdiction
à la défenderesse notamment de prendre des mesures auprès des franchisés et distributeurs
de la demanderesse. Les mesures provisoires ne resteront en vigueur que jusqu’à ce qu’une
décision ait été rendue par le tribunal arbitral dûment constitué.
Par décision du 2 avril 2007, à la demande de la défenderesse, le juge brésilien a de
nouveau modifié sa décision en indiquant que la demanderesse devait assurer toutes les
mesures et activités liées à la fabrication et distribution des collections de vêtements de la
société défenderesse pour les saisons automne/ hiver 2007 et printemps/été 2007/2008. La
défenderesse retrouvera en conséquence ses droits de faire réaliser la collection automne/
hiver 2008.

La demanderesse a fait appel de cette décision devant le juge brésilien en avril 2007. La
situation de droit a cependant changé suite à la constitution et saisine du tribunal arbitral.
Conformément au Règlement CCI 1998 et à la décision du juge brésilien, il incombait
désormais aux arbitres de se prononcer sur l’organisation de la situation transitoire et les
mesures provisoires.
À l’appui de sa requête tendant à confirmer sa demande de mesures conservatoires, la
demanderesse a indiqué ce qui suit devant les arbitres:
« La preparation et la fabrication des deux collections prend chaque année environ
12 mois. Dans l’intérêt des deux parties, il faut donc ménager me transition
ordonnée. Celles-ci ne s’entendant pas, le Tribunal arbitral doit organiser le
statu quo.
De ce fait, il est nécessaire que la demanderesse assume encore quatre collec¬
tions dont les deux premières (automne/hiver 2007 et prinlempsÉté 2008) sont déjà
en cours.
Aussi longtemps que les arbitres ne se seront pas prononcés, X. aura été dans
l’incapacité de déterminer exactement la « date butoir ». Or, ainsi que le montre en
particulier la déclaration écrite du 1er juin 2007 de M. . . ., il faut du temps pour
réorienter l'activité de l’usine, décider du sort clés employés, négocier avec les
syndicats, informer les actionnaires et réviseurs, etc. Il ne s'agit pas de déterminer
au fond la date à laquelle le contrat prendra fin mais de donner à X la possibilité de
s 'organiser en vue de cette issue ».
La défenderesse, quant à elle, a insisté que le tribunal arbitral confirme la décision du
juge brésilien d’avril 2007 qui laisse à la demanderesse la responsabilité de la fabrication et
la distribution des produits jusqu’au terme de la saison printemps/été 2007-2008 et qui
redonne plein effet au nonrenouvellement du contrat. La défenderesse a souligné les points
suivants:
« Le contrat prévoit un délai de six mois pour mettre fin aux relations contrac¬
tuelles, plus précisément indiqué qu'il n’y aura pas de renouvellement tacite. Or,
en l’espèce, X a d'ores et déjà bénéficié de plus de 12 mois depuis le 13 juin 2006.
Dès ce moment, X savait que le contrat prendrait fin et pouvait, donc devait,
s'organiser en conséquence. En réalité, elle cherche maintenant à obtenir des
arbitres ce que le juge brésilien lui a refusé en avril 2007 sans pouvoir alléguer
des faits nouveaux, soit des événements que n 'aurait pas connus ce magistrat ».
Par ordonnance du 13 juin 2007 et en application de l’article 23 du Règlement CCI 1998,
le tribunal arbitral a rejeté les demandes de mesures provisoires des deux parties « sans
nullement porter un jugement sur le fond du dossier ».
II — Validité de la dénonciation du contrat par la défenderesse
La demanderesse a contesté la validité de la dénonciation du contrat et sollicité du
tribunal arbitral ce qui suit:
« 1. De constater que Y a manqué à son obligation d’exécuter ses obligations
contractuelles de bonne foi;
2. De déclarer que l’article L. 442-6-1-5° du Code de commerce est applicable à
la relation commercial entre X et Y;
3. De dire que, dans le contexte des relations commerciales établies entre les
parties, le préavis de non-renouvellement du Contrat requis en vertu de l'article
L. 442-6-1-5° du Code de commerce ne saurait être inférieur de 18 à 24 mois;
4. De constater que, dans le contexte des relations commerciales établies entre
les parties, un préavis de non-renouvellement de 6 mois et 17 jours n 'est ni suffi¬
sant, ni raisonnable;
5. En conséquence, de déclarer que Y a violé:

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A. l’article 1134 al.3 du Code civil, et

B. l’article L. 442-6-1-3° du Code de commerce
6. De déclarer que Y. doit payer à X. des dommages et intérêts au titré de la
réparation des préjudices causes en vertu des violations de l 'article L. 442-6-1-5°
du Code de commerce et de l'article 1134 al. 3 du Code civil;
7. De condamner Y au paiement de dommages et intérêts à X pour un montant de
(...)
8. De condamner Y à payer les frais d 'arbitrage ainsi que défini à l'article 31(1)
du Règlement d'arbitrage de la Chambre de Commerce Internationale ».
La défenderesse a demandé au tribunal arbitral de:
« (a) Débouter X de ¡'ensemble de ses demandes:
(b) Constater que X n’a versé aucune redevance à Y depuis le ( ... ) 2006
T (...)
(c) Condamner X à supporter l’intégralité des frais de l’arbitrage et à payer Y
£ l'ensemble des frais exposés en relation avec le présent litige, en ce compris ses
frais de conseils et de défense ».
En résumé, le tribunal arbitral devait examiner la validité du préavis contractuel au
regard du droit impératif français, notamment de l’article L. 442-6-1-5° du Code de com¬
merce et le respect de l’obligation de bonne foi imposé par l’article 1134, alinéa 3, du Code
civil.
Le tribunal arbitral a rejeté pour l’essentiel les prétentions de la demanderesse.
Il a tout d’abord constaté que les conditions d’application de l’article L. 442-6-1-5° du
Code de commerce n’étaient pas remplies en l’espèce. Il s’est appuyé sur les critères
retenus en jurisprudence — caractère imprévisible, soudaine et violente de la rupture —
pour conclure à la validité du nonrenouvellement du contrat par la défenderesse. Ce droit a
été exercé conformément aux stipulations contractuelles et après considération des circon¬
stances particulières du cas d’espèce:
« 164. Le Tribunal arbitral est amené à considérer si le délai de préavis de six
mois convenu entre les Parties est conforme au droit impératif français. L'article
L. 442-6-1 du Code de commerce dispose:
« Engage la responsabilité de son auteur et l 'oblige à réparer le préjudice causé
le fait, par tout producteur, commerçant, industriel ou personne immatriculée au
répertoire des métiers:
(...)
5° De rompre brutalement, même partiellement, une relation commerciale éta¬
blie, sans préavis écrit tenant compte de la durée minimale de préavis déterminé, en
référenceÿ aux usages du commerce, par dés accords interprofessionnels (...)».
165. A titre liminaire, il y a lieu de relever que si le Tribunal arbitral devait se
prononcer sur le champ d'application de la disposition précitée, il conclurait que
celle-ci n 'est pas applicable dans le cas d'espèce. La jurisprudence à ce sujet est
contradictoire: la cour d'appel de Versailles juge en octobre 2004 que l’article L.
442-6-1 du Code de commerce s'applique à tout contrat soumis au droit français,
même exécuté à l'étranger (Pièce (...)). La cour d’appel de Lyon considère en
septembre 2004 qu’il s’agit d’une loi de police économique au sens du droit
international qui limite ses effets au territoire national (pièce (...)). Lorsque
la loi de police est la loi du for, l'intérêt précis qui s'attache, selon l 'ordre juridique
du for, à son application en l'espèce, l’emporte certainement sur l’intérêt, peu
pressant, d’une localisation objective de la question du droit. (P. Mayer/V.
Heuzé, Droit international privé, 8e éd„ Paris 2004, n° 124, p. 90). Le Tribunal
arbitral serait enclin à suivre le raisonnement de la cour d'appel de Lyon. En effet,
l 'objet de la loi en question est de sanctionner, par l 'octroi de dommages intérêts,
et éventuellement d’une amende civile, un délit économique. Cela justifie l’inter¬
vention du ministère de l’Économie à la procédure et laisse penser que le délit

économique doit s'être produit sur le territoire français pour que l'article L.442-6-
1 du Code de commerce soit applicable (.. . ).
167. En appliquant ce raisonnement au pouvoir du ministère de l’Economie
dans le cadre de l’article L. 442-6-1-5° du Code de commerce d’adopter des arrêtés
fixant un délai minimum de préavis et encadrant les conditions de rupture, le
Tribunal arbitral conclut que le champ d’application de la disposition en question
parait limité au territoire français et que la disposition vise à répondre au besoin de
protection des distributeurs français. Quant à l’application dans le temps, il
importe peu que la loi soit intervenue après la signature du Contrat dans la mesure
où elle vise la rupture qui constitue le délit économique. Par conséquent, la date du
contrat est indifférente. Le Tribunal n’a toutefois pas besoin de se prononcer sur la
délimitation du champ d’application de l’article L. 442-6-1du Code de commerce
vu qu’en l’espèce les conditions n 'en sont pas réunies de toute manière.
168. Selon la jurisprudence, la rupture des relations économiques peut être
préjudiciable et peut ouvrir droit à des dommages et intérêts si elle est « impré¬
visible, soudaine et violente » (CA Montpellier, 11 août 1999, Langlais c/ Quick:
RIDA 11/99 n° 1176). Le Tribunal arbitral va donc examiner si en l’espèce la
rupture des relations entre les Parties résultant du non renouvellement du Contrat
peut être caractérisée comme « imprévisible, soudaine et violente au regard du
délai contractuel (...) ou encore au regard des circonstances particulières du
cas d'espèce (... )
8.2.1 Le délai contractuel
169. X entretient des relations commerciales avec les sociétés détentrices de
droits sur la marque Y depuis 1983 (...) Il est donc exact qu'au moment de
l’annonce du non renouvellement du Contrat par Y„ bénéficiait d’une relation
commerciale établie de 23 ans avec le groupe des sociétés faîtière Y SA Quant
à la relation entre X et Y, elle date de la signature du Contrat le 31 juillet 1995.
170. Cependant, les deux Parties sont des opérateurs économiques importants
et des commerçants expérimentés. X. emploie 3‘000 employés et génère des profits
dépassant USD 100 millions . . . Il s’agit de partenaires contractuels égaux avec le
même pouvoir de négocier les termes contractuels qui les lient. Ceci est d'autant
plus vrai queX. affirme elle-même qu 'elle n‘était pas particulièrement intéressée à
entrer dans la relation commerciale avec les sociétés du groupe Y à l'origine
173. Au regard de ces circonstances, il est difficile de s'imaginer que X ait pu
subir une pression de la part de son partenaire contractuel ou ait pu se trouver en
situation d'infériorité. H y a donc lieu de conclure que X était entièrement libre de
négocier à sa guise les termes contractuels et notamment la durée du préavis de non
renouvellement et a volontairement accepté dès le départ l'idée d 'un préavis de six
mois de non reconduction des relations contractuelles ( ... )
176. Ainsi, X n’a pas apporté d'éléments convaincants pour établir un change¬
ment des circonstance par rapport à ses connaissances et sa situation au moment où
elle a librement convenu avec Y du délai de préavis contractuel, propre à rendre le
non-renouvellement des relations entre les Parties « brutal » au sens du droit impér¬
atif français. En d’autres termes, la seule durée de la relation commerciale entre les
Parties n'est pas de nature à rendre le délai de préavis convenu initialement insuf¬
fisant. Cela est d’autant plus vrai que les Parties l 'ont négocié at amis’ length. En
conclusion, le délai de préavis n 'est pas insuffisant et n’est donc pas propre en soi à
donner lieu d'appliquer l’article L. 442-6-1-5° du Code de commerce.
8.2.2 Les circonstances particulières à la présente espèce
177. Le Tribunal doit encore vérifier si les circonstances particulières de la
présente espèce et notamment les modalités de non renouvellement du Contrat
rendent la rupture d'une relation commerciale établies « brutale » au sens de

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l 'article L. 442-6-1-5° du Code de commerce. La rupture, pour être préjudiciable et

ouvrir droit à des dommages-intérêts, doit être brutale, c 'est-à-dire selon le droit
commun « imprévisible, soudaine et violente » (CA Montpellier, 11 août 1999,
Langlais c/ Quick: RJDA 11/99 n° 1176).
— —
178. La brutalité de la rupture qui peut être totale ou partielle est car¬
actérisée par l’absence de préavis écrit d'une durée suffisante, ceci en considéra¬
tion de « la durée de la relation commerciale ». L’idée sous-jacente au choix de ce
paramètre est que plus une relation s'inscrit dans le temps, plus elle entraîne des
habitudes et génère delà . . . confiance (Chagny, op. cit.p. 41) (...) En l’occur¬
rence, malgré l'échéance contractuelle du 31 décembre 2006, Y a formellement
autorisé X à réaliser l’intégralité de la fabrication et de la distribution de la
collection automne/hiver 2007.
JC." 179. S'agissant de l’importance jînancière des relations entre les Parties, X
TC invoque les investissements effectués pour développer la marque Y au Brésil d’une
part, et la progression régulière du chiffre d'affaires, d’autre part. Il n’est pas
contesté que X a investi régulièrement depuis le début de la relation commerciale
avec Y Cependant, en effectuant de tels investissements, X ne faisait là que remplir,
selon sa propre appréciation et au mieux de ses intérêts, ses obligations contrac¬
tuelles en vue d’atteindre les objectifs fixés d’un commun accord.
180. (...) H y a lieu de constater que non seulement Y n’a pas encouragé ce
type d’investissements mais s’y est opposée à plusieurs reprises ( ... )
182. Enfin, le Tribunal arbitral constate que la clause d’exclusivité du Contrat,
l’importance de la part du chiffre d’affaires réalisé par Y et la prétendue nécessité
pour X, en raison des clauses de confidentialité, de créer une division dévouée
exclusivement à Y, ne suffisent pas à créer la dépendance économique invoquée par
X au regard de l 'importance économique des deux partenaires et de la liberté totale
dont les Parties disposaient au moment de la signature du Contrat. La cour d’appel
de Paris a expressément dit pour droit que l’état de dépendance économique‘ne
saurait s ‘induire de la seule exclusivité’ ou’de la notoriété de la marque distri¬
buée’. En effet,'l’état de dépendance économique caractérise une situation dans
laquelle une entreprise est obligée de poursuivre des relations commerciales avec
une autre compte tenu de l 'impossibilité de s ‘approvisionner en produits substitu¬
ables dans des conditions équivalentes' (pièce (...)). Le dossier n’établit pas que
X ne peut pas utiliser ses installations pour d'autres produits que ceux de Y et le
contraire ressort même du reproche que celle-ci lui a fait de fabriquer des
vêtements oncurrents ( ... )
185. En outre, le critère retenu par la jurisprudence pour caractériser la situ¬
ation de dépendance économique est celui de l’impossibilité de s'approvisionner
en produits substituables dans des conditions équivalents (pièces ( ... )).Xn'a pas
contesté la lecture des pièces (...) et ( ... ) par Y, selon laquelle 103 employés,
soit près de 20 % des effectifs du site (. .), ont été recrutés après le 1er janvier 2007,
soit plus de six mois après que X ait été informée du non renouvellement du Contrat
(...) le seul fait d'engager de nouveaux employés témoigne de l'existence de la
solution de remplacement pour X et de l'absence d'une quelconque dépendance
économique de celle-ci au sens de la jurisprudence précitée ».
S’agissant des exigences de bonne foi et de l’interdiction de l’abus de droit, le tribunal
arbitral a constaté que la défenderesse n’a pas commis de fautes dans l’exercice de son droit
qui serait susceptible d’être sanctionné par les arbitres:
« 8.3.1 L’obligation de bonne foi et l’interdiction de l’abus de droit en droit
français
¡88. La bonne foi fait partie des notions cadres aux contours juridiques imprécis
dont le contenu reste flou et mal défini. Dans le contexte contractuel, cette notion
polysémique repose sur l'idée selon laquelle les contractants ont l’un envers

l’autre un devoir de loyauté qui leur impose davantage que le strict respect des
engagements contractuels. Agir de bonne foi, c'est se conduire en homme honnête
et consciencieux, c’est-à-dire faire ce à quoi l'on s'est engagé, et répondre aux
sollicitations de l’autre. Mais, de manière plus positive, c’est aussi faire preuve
d'initiative chaque fois que t 'honnêteté et la loyauté l 'exigent (...) La bonne foi
trouve plus souvent sonfondement dans ¡'article 1134 al. 3 du Code civil français
qui a la teneur suivante:
‘1. Les conventions légalement formées tiennent lieu de loi à ceux qui les ont
faites.
2. Elles ne peuvent être révoquées que dans leur consentement mutuel, ou pour
les causes que la loi autorise.
3. Elles doivent être exécutées de bonne foi.'
189. L 'obligation d 'exécuter le contrat de bonne foi est liée au devoir de ne pas
surprendre une confiance éveillée chez son cocontractant. Ainsi, les parties au
contrat sont liées par une obligation implicite accessoire qui leur impose de se
comporter loyalement l'une envers l’autre. La violation de ce devoir entraîne une
responsabilité, dans la mesure où une confiance justifiée a été abusivement trom¬
pée ou déçue de manière déloyale. La jurisprudence sanctionne également l’inten¬
tion de nuire à son cocontractant (Arrêt de la cour d'appel de Paris du 22 mai 1992,
citation juridique deX.n° (...)). L’abus de droit dans les contrats se caractérise
ainsi soit par une intention de nuire, soit à tout le moins par le dépassement du
cadre normal de l'exercice d'un droit. En cas d'abus, ce n'est pas à proprement
parler le caractère licite du droit lui-même qui est remis en cause, mais l 'usage qui
en a été fait, ce qui implique la prise en compte du comportement du contractant et
des motifs qui l 'ont conduit à agir. La distinction ainsi faite entre bonne foi et abus
de droit n’est pas très éclairante, car l’absence de prise en compte de l’intérêt du
cocontractant tend à faire dégénérer en abus l 'usage de tel ou tel droit et parce que
l'abus dans l 'exercice d’un droit peut s'analyser lui-même en une déloyauté. C’est
la raison pour laquelle la grande majorité de la doctrine considère que les 2
notions peuvent être employées l'une pour l'autre (Citation juridique de X n°
(...)). La jurisprudence elle-même emploie souvent l'une ou l’autre indistincte¬
ment, parfois même conjointement et si, s 'agissant de la résiliation unilatérale du
contrat de concession commerciale, c'est l'abus de droit qui fonde le plus souvent
la sanction du dépassement des limites à l’exercice de ce droit et non le manque¬
ment à la bonne foi par référence à l’article 1134 al.3 du Code civil, de sorte que
dans cette hypothèse, les deux notions se confondent effectivement, l'abus de droit
n'étant plus considéré que comme la sanction d’un manquement à la bonne foi
(Citation juridique de X n° ( ... )).
190. La jurisprudence citée par X confirme l'obligation d’exécuter les contrats
de bonne foi et le principe de l'interdiction de l’abus de droit, aussi bien dans le
contexte des contrats à durée déterminée (Arrêt de la Cour d’appel de Paris du 22
mai 1992, citation juridique de X n° ( ... )) que dans celui des contrats à durée
indéterminée (Arrêt de la cour d'appel de Paris du 22 mai 1992, citation juridique
de X n° ( . . . )). Il est certain que l’exigence de prévisibilité, au cœur de l’attente
légitime que le comportement d’un cocontractant peut créer chez l’autre, est plus
forte si les relations contractuelles sont de longue durée. L'appréciation du non
renouvellement d’un contrat à durée déterminée ne peut pas être effectuée exacte¬
ment de la même manière que la résiliation d’un contrat à durée indéterminée.
Néanmoins, les principes généraux de bonne foi et l 'interdiction de l 'abus de droit
sont communs à ces deux types de contrats. Question de degré et d'évaluation des
circonstances plutôt que différence de nature donc.
191. Le non-renouvellement d 'un contrat arrivant à son échéance contractuelle
n 'est en soi pas contraire au principe de la bonne foi. Une non-reconduction d'un
y

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---
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«
contrat à durée déterminée ne constitue ainsi pas un comportement déloyal, sauf à

établir l'attitude d'une partie propre à éveiller une attente légitime de reconduc¬
tion du contrat chez son cocontractant. La doctrine et la jurisprudence parlent du
comportement qui a fait naître dans l’esprit du cocontractant une confiance légit¬
ime dans une certaine stabilité du contrat ou le maintien d'un lien contractuel
(H. Kenfack, La consécration de la confiance comme fondement de la force obli¬
gatoire du contrat? in La confiance en droit privé des contrats, Dalloz 2008, p. 117
et 123 et les réf).
8.3.2 Le principe de la liberté contractuelle
192. Sauf circonstances particulières dans lesquelles elle va prévaloir, l’obli¬
gation de bonne foi trouve sa limite dans la liberté contractuelle: celle-ci permet à
chacun de tenir compte en priorité de ses propres intérêts en respectant les termes
■tr contractuels qui reflètent la commune et réelle intention. Le Tribunal acquiesce
:r avec une réserve à l’affirmation de X selon laquelle il existe une obligation positive
V de chaque partie de prendre en considération et de respecter l’intérêt de son
cocontractant. En effet, chaque partie reste libre de chercher des solution com¬
merciales plus avantageuses pour elle pour autant qu 'elle respecte les termes
contractuels et se comporte de manière loyale envers son cocontractant. En
d’autres termes, le devoir de prendre en considération l'intérêt de son cocontrac¬
tant ne suffit pas à lui seul pour obliger un partenaire à continuer une relation
commerciale désavantageuse pour lui-même du point de vue économique ou même
dont il ne veut plus sans motif économique.
193. En outre, toute rupture des relations contractuelles inattendue pour la
partie à qui elle est notifiée ne constitue pas nécessairement un abus de droit ou
un comportement déloyal. Le principe reste celui de la liberté contractuelle et
notamment celle de mettre fin à une relation contractuelle, que cette relation
soit à durée déterminée ou indéterminée. De surcroît, selon la jurisprudence,
une partie à un contrat à durée déterminée peut le dénoncer en respectant le
délai de préavis contractuel sans motiver sa décision: Ne pas donner ses raisons
n'est pas en soi commettre un abus de droit (Arrêt de la Chambre commerciael de
la Cour de cassation du 3 juillet 2001, pièce (...)).
194. L’exception ou plutôt un correctif à ce principe est donc l'exigence de la
bonne foi et l’obligation de se comporter loyalement envers son cocontractant.
C’est dans ce contexte que la jurisprudence française examine non seulement si le
préavis contractuel a été respecté mais encore s‘il permet au cocontractant d’orga¬
niser sa reconversion (Arrêt de la cvhambre commerciale de la Cour de cassation
du 6 mai 2002, pièce (...)). Cependant, cet arrêt constate que, dans la mesure où
les circonstances de fait permettent la reconversion du cocontractant, il n’ existe
pas d'obligation de ne pas diminuer les chances de reconversion du cocontractant
allant au-delà du respect du délai de préavis contractuel ( ... )
195. (...) Il est rappelé à nouveau que les parties sont libres d 'organiser leurs
—
relations commerciales comme elles l'entendent. En effet, il n’existe aucune pro¬
—
tection absolue même par l'interdiction de l'abus de droit contre des stipula¬
tions contractuelles commercialement défavorables, notamment contre une
inadéquation entre la durée du préavis contractuel et le temps effectivement néces¬
saire au cocontractant pour assurer sa reconversion.
196. Deux acteurs économiques importants disposant du même pouvoir de
négociation assument eux-mêmes les risque qu’ils prennent en acceptant des
termes contractuels dont certains peuvent s'avérer contraires à leurs intérêts.
Ainsi, ils ne peuvent pas, après avoir accepté de plein gré une stipulation défavor¬
able, recourir au principe général de l’interdiction de l’abus de droit afin de
remettre en cause tout l’équilibre contractuel. En effet, les contrats procèdent
toujours d'un certain équilibre et les concessions d’une partie sont souvent

contrebalancées par celles faites par l'autre et reflétées dans d’autres clauses du
même contrat. Ce n'est donc pas le rôle du juge ou de l'arbitre de corriger uni¬
latéralement cet équilibre contractuel en modifiant des clauses contractuelles
prises isolément en fonction des circonstances particulières. Il n‘y a pas lieu de
mieux prévoir que ne l'ont fait les parties mais de s 'assurer que l'une ne profite
abusivement ou de mauvaise foi des circonstances: il faut un abus ou une mauvaise
foi pour le juge ou l’arbitre intervienne.
197. En d'autres termes, pour admettre qu'une clause claire et précise soit
pourtant réputée non écrite, il faut d’abord pouvoir constater qu'elle a été stipulée
« en contradiction avec l 'économie générale du contrat » (Com. 15 févri. 2000: D.
2000. somm. comm. 365, obs. Ph. Delebecque). En l’espèce, le délai de préavis de
six mois ne remet pas en cause l 'économie générale du Contrat. Même si X devait
avoir établi la contradiction entre ses propres intérêts économiques et le délai de
préavis de non-renouvellement de six mois, cela aurait été insuffisant de toute
manière pour remettre en cause les principes de la liberté contractuelle des parties
et du respect des conventions.
198. En conclusion, le Tribunal arbitral retient que le strict respect des stipula¬
tions contractuelles n’est pas effectivement décisif quant à l'appréciation de la
bonne foi dans l’exécution du Contrat. Le Tribunal rejette cependant la thèse deX
selon laquelle l’inadéquation entre les termes contractuels et les intérêts écono¬
miques d’une partie est en soi constitutive d'un abus de droit caractérisé (ÿÿ ) ■
199. Il résulte de l'obligation de bonne foi et de celle de l’abus de droit

(çf. Sentence, n° ( ... ) ci-dessus) que l 'abus de droit est sanctionné parce qu'il
constitue un comportement répréhensible caractérisé par le dépassement ou le
détournement d’une prérogative a priori licite ( ... )
202. Hya donc lieu de rechercher si Y a éveillé une attente légitime chezXque
les relations commerciales continueraient au-delà du 31 décembre 2006 et Va
ensuite déçue de manière déloyale. Il est rappelé que le seul fait que le non-
renouvellement du Contrat par Y était contraire aux intérêts de X ne suffit pas
pour engager la responsabilité de Y ( ... )
208. S’agissant spécifiquement de la relation avec X, les PMT (plan à moyen
terme) à trois ans ont été utilisés depuis 1992 ( ... ) soit avant la conclusion du
Contrat litigieux en 1995. Ainsi, même si la pratique sur laquelle s 'appuie X pour
expliquer son attente de reconduction du Contrat devait avoir une certaine valeur,
elle n'est en tout cas pas propre à primer une règle contractuelle postérieure, à
savoir le délai de préavis de six mois sur lequel les Parties se sont mises d'accord
en 1995. Si X entendait déduire des PMT certains droits en relation avec la durée
des relations contractuelles avec Y, elle devait le faire comprendre à sa cocon¬
tractante lors de la signature du Contrat en 1995. En l’absence d’une telle indi¬
cation, une pratique antérieure et généralisée n 'est pas propre à remettre en cause
une règle contractuelle claire et non équivoque.
209. Enfui, la reconduction du Contrat à plusieurs reprises ne suffit pas à lui
seul à créer une attente légitime chez le cocontractant que le Contrat se renou¬
vellera nécessairement dans le future. En effet, l'absence de réserve à ce sujet par Y
ne permet guère de conclure que son intention était de modifier et non seulement
d’appliquer les dispositions contractuelles, notamment le délai de préavis contrac¬
tuel. Cela est d’autant vrai que Y a manifesté à plusieurs occasions son insatisfac¬
tion à l’égard des performances de X (... )
210. De même, la pratique d’élaboration des plans à trois ans (PMT) qui ne
coïncidaient pas toujours avec les échéances contractuelles ne suffit pas à elle
seule à créer une attente légitime de la reconduction du Contrat (...) Ils ne
constituent pas une « assurance » ou « un signe non équivoque » d’une intention
de Y de poursuivre les relations commerciales avec X pendant toute la durée du
"-ï
:

ï
1
J-
PMT en cours et notamment au-delà du terme expressément convenu dans le

Contrat. X ne pouvait pas s’y tromper et aurait dû clairement exposer son point
de vue si elle estimait les accords contractuels inapplicables dans les faits.
211. Par conséquent, l’initiative du Plan (à cinq ans 2005-2009) provient deX.
Ce plan n’a jamais été approuvé par Y ( . . . )
212. Enfin, quant à l 'incitation à développer une stratégie « plus aggressive », le
Tribunal arbitral constate que Y ne cherchait nullement à pousser X à développer
une nouvelle politique ou à fixer de nouveaux objectifs. Au contraire, il s’agissait
plutôt de rappeler àX son obligation d'atteindre les objectifs fixés auparavant d'un
commun accord entre les Parties et de remédier au déficit des performances que Y
reprochait àX ( ... )
215. En conclusion, Y. ne s'est pas comportée d’une manière propre à éveiller
une confiance légitime chez X quant à la poursuite des relations entre les Parties
au-delà de l'échéance contractuelle ».
— —
NOTE. I. La présente sentence arbitrale rappelle la possibilité laissée aux parties
de saisir préalablement les tribunaux judiciaires en vue d’obtenir des mesures conserva¬
toires lorsqu’une procédure d’arbitrage n’a pas été encore engagée ou lorsque le tribunal
arbitral n’est pas encore constitué. En dépit de l’existence d’une clause compromissoire
—
insérée dans le contrat, la saisine des tribunaux judiciaires qui est justifiée par une
situation d’urgence ou la nécessité de préserver un status quo en vue d’éviter des dom¬
—
mages irréparables à l’une des parties ne vaut pas renonciation à la clause compromis¬
soire dès lors que les mesures provisoires sollicitées n’affectent pas le fond du litige qui
relève de la seule compétence du tribunal arbitral. Elles doivent viser à protéger tempor¬
airement les intérêts d’une des parties jusqu’au prononcé de la décision par le tribunal
arbitral.
En l’espèce, la demanderesse a saisi le tribunal brésilien pour obtenir la suspension
provisoire des effets du non-renouvellement de son contrat et continuer entretemps à
assurer la préparation et la fabrication des prochaines collections en attente de la décision
du tribunal arbitral. En effet, tant que celui-ci ne se serait pas prononcé sur la validité de la
rupture du contrat, elle ne pouvait pas connaître la « date butoir » de la relation contrac¬
tuelle et organiser sa réorientation.
Le juge brésilien s’ est prononcé favorablement en ce sens, en prenant soin de préciser le
caractère temporaire de sa décision. Il appartient effectivement aux arbitres, une fois
nommés et saisis du dossier par la CCI, de se prononcer sur l’organisation de la situation
transitoire en considération de l’article 23 du Règlement CCI de 1998 (sur les conditions
d’octroi des mesures conservatoires, les types de mesures et les rapports avec les autorités
judiciaires, V. notamment A Redfern, Interim Measures in The Leading Arbitrators' Guide
to International Arbitration, 2K* ed., edited by L. Newman/R. Hill: Jurispublishing 2008,
—
p. 203. A. Yesilirmak, Les mesures provisoires et conservatoires dans la pratique arbi¬
trale de la CCI et les differents extraits de sentences arbitrales citées: Bull. CCI 2000,
—
vol. 11, n° I, p. 32. J. Lew, Analyse des mesures provisoires et conservatoires dans
l’arbitrage de la CCI: Bull. CCI 2000, vol. 11, n° 1, p. 24. —A. Reiner, Les mesures
provisoires et l’arbitrage international notamment l’arbitrage CCI: JDI 1998, p. 853.
V. également affaire CCI «° 14243 (2007): JDI 2010, p. 1448, obs. A. Carlevaris; affaires
—
CCI n° 10596 (2000) et n° 10973 (2001) in Recueil des sentences arbitrales de la CCI
2001-2007: Kluwer/ICC 2009, p. 315 et 327).
La saisine du juge avant celle des arbitres n’est pas une pratique nouvelle. Comme
expliqué précédemment, elle est nécessaire lorsque les circonstances l’exigent pour pré¬
server les intérêts d’une partie et lui éviter un dommage irréparable. Cette nécessité est
prise en compte dans la plupart des règlements d’arbitrage, en particulier l’article 23(2) du
Règlement CCI 1998 qui dispose que « fijes parties peuvent, avant la remise du dossier au

tribunal arbitral et dans des circonstances appropriées après, demander à toute autorité
judiciaire des mesures provisoires ou conservatoires. La saisine d’une autorité judiciaire
pour obtenir de telles mesures ou pour faire exécuter des mesures semblables prises par
un tribunal arbitral ne contrevient pas à la convention d’arbitrage, ne constitue pas une
renonciation à celle-ci, et ne préjudicie pas la compétence du tribunal arbitral à ce titre.
Pareille demande, ainsi que toutes mesures prises par l’autorité judiciaire, devront être
portées à la connaissance du Secrétariat. Ce dernier en informera le tribunal arbitral ».
Cette disposition a été reprise et développée par le nouveau Règlement CCI de 2012
dans ses articles 28 et 29.
L’article 28(2) du Règlement CCI 2012 reprend pour l’essentiel les dispositions de
l’article 23(2) du Règlement CCI 1998 et n’appelle pas de commentaires particuliers.
Par contre, l’article 29 sur l’arbitre d’urgence est une nouveauté. Désormais, une partie
peut saisir un arbitre d’urgence pour tenter d’obtenir des mesures conservatoires avant la
constitution du tribunal arbitral, en application de la procédure prévue à l’Appendice V du
Règlement CCI 2012. Cette requête est recevable à condition que le Secrétariat l’ait reçue
avant que le dossier ne soit remis au tribunal arbitral. Les parties s’engagent en outre à se
conformer à l’ordonnance qui sera rendue par l’arbitre d’urgence, sachant qu’elle ne saura
lier le tribunal arbitral qui peut modifier ou rapporter l’ordonnance, voire lever les mesures
ordonnées.
Cette nouvelle disposition offre une double alternative aux parties qui mérite d’être
soulignée.
L’article 29 évite tout d’abord aux parties de saisir deux autorités compétentes mais
concurrentes, le juge et l’arbitre. Il leur offre ensuite une option par rapport au Règlement
de référé pré-arbitral de la CCI de 1990 qui a été rarement utilisé en pratique par les parties
(V. plus généralement, J.-Y. Garaud/Ch.-H. de Taffin, Le règlement de référé pré-arbitral
—
de la CCI: Bull. CCI 2005, vol. 16, «° I.p. 33. T. Toulson, Van Houtte acts as emergency
referee, GAR, 9 Dec. 2010: http://globalarbitrationreview.com).
En mettant en place une telle disposition, la Cour internationale d’arbitrage de la CCI
(la « Cour ») donne le moyen à une partie d’obtenir rapidement des mesures conservatoires
contre une partie adverse récalcitrante à accélérer par exemple la constitution du tribunal
arbitral et à préserver les avantages de l’arbitrage (rapidité, souplesse de la procédure). La
politique de la Cour s’inscrit dans le prolongement des actions menées par les autres
institutions d’arbitrage qui ont adopté des dispositions similaires dans le cadre de la révi¬
sion de leurs propres règlements d’arbitrage (V. notamment Régi, d’arbitrage du ICDR
américain de 2009, art. 37; l'Appendice II du Règlement d'arbitrage de la SCC
Stockholm Chamber of Commerce de 2010, l’article 26.2 du Règlement d’arbitrage du
—
—
SIAC Singapore International Arbitration Centre de 2010).
Il reste à mesurer l’impact ou le succès du recours à l’article 29 par les parties, sachant
que l’ordonnance rendue par l’arbitre d’urgence est par définition temporaire, qu’elle
ne tranche pas le fond du litige et qu’elle ne lie pas les arbitres. De par sa nature, l’ordon¬
nance n’est pas exécutoire en vertu de la Convention de New York de 1958 pour la
reconnaissance et l’exécution des sentences arbitrales étrangères ou de toute autre con¬
vention. En toute hypothèse, cette initiative semble répondre à un besoin actuel des pra¬
ticiens du commerce international. En 2010, la SCC a ainsi reçu quatre (4) demandes pour
la nomination d’un arbitre d’urgence dans des affaires où le montant en litige a varié entre
500 000 €et 100 millions d’euros. Dans la même année, le SIAC a reçu une (1) demande à
cet effet.
Si le pouvoir des arbitres de prononcer des mesures provisoires résulte de l’accord des
parties et du règlement d’arbitrage, il faut rappeler que le tribunal arbitral doit encore
vérifier que ce pouvoir lui est reconnu en considération de la loi du siège de l’arbitrage.
—
C’est le cas en France où l’article 1468 du code de procédure français modifié par le

i
—
décret n° 2011-48 du 13 janvier 2011 portant réforme de l’arbitrage reconnaît explicite¬
ment aux arbitres ce pouvoir sauf à ordonner des saisies conservatoires ou sûretés judi¬
ciaires qui relèvent de la compétence exclusive des juges (V. plus généralement E. Loquin,
La réforme du droit français interne et international de l'arbitrage (Commentaire du
décret n° 2011-48 du 13 janvier 2011): RTD com. avr.-juin 2011, p. 255.
Jarrosson, Le droit français de l'arbitrage après le décret du 13 janvier 2011: Rev.
—
Ch.
—
arb. 2011, n° 1, p. 5. E. Gaillard et P. de Lapasse, Le nouveau droit français de
l’arbitrage interne et international: Dalloz 2011, n° 3, p. 175).
II. — Une partie, évincée d’une relation économique, tente souvent d’engager la
responsabilité de son co-contractant pour rupture fautive voire abusive du contrat.
S’agissant du droit français, l’article L. 442-6, 1, 5° du Code de commerce sanctionne le
■K!
fait pour une partie « [â]e rompre brutalement, même partiellement, une relation commer¬
.fl,
ciale établie, sans préavis écrit tenant compte de la durée de la relation commerciale et
Í,
respectant la durée minimale de préavis déterminée, en référence aux usages du commerce,
par des accords interprofessionnels ».
;
Dans le cas présent, la demanderesse allègue que la défenderesse n’a pas agi conformé¬
ment à ses obligations légales car l’article L. 442-6, 1, 5° du Code de commerce tient la
durée du préavis contractuel pour insuffisante en raison du fait que i) la relation comrner-
dale était établie et ii) la rupture de cette relation a été brutale.
Le tribunal arbitral était ainsi amené à considérer si le délai de préavis de six mois
convenu entre les parties était conforme au droit français.
À titre liminaire, le tribunal arbitral observe que la jurisprudence française est partagée,
voire contradictoire, quant au champ d’application de l’article L. 442-6, 1, 5° du Code de
commerce.
Selon une première tendance, l’article L. 442-6, 1, 5° du Code de commerce « s’impose à
une société française que son partenaire soit lui-même français ou étranger et que son
application est recherchée devant une juridiction française à propos d’un litige ayant
pour objet la rupture de relations commerciales établies résultant pour l’essentiel de
l’exécution d’un contrat de distribution que les parties ont entendu soumettre au droit
français et se trouvant par là aussi rattaché à l’ordre juridique français . . . ».
L’application de l’article précité serait donc impérative à l’égard d’une partie française
dès lors que le droit français est applicable, peu importe la nationalité du distributeur
(V. notamment CA Versailles, 14 oct. 2004, n° 2003-04512, Casa Milano d Sté Loris
Azzaro, confirmé par Cass, corn., 11 juill. 2006, n° 04-20.592).
Dans une seconde tendance de la jurisprudence, à laquelle le tribunal arbitral souscrit,
l’article L. 442-6, 1, 5° du Code de commerce est analysé comme étant une loi de police
économique au sens du droit international: le but est de protéger les distributeurs français
— par l’allocation de dommages et intérêts — contre un délit économique commis sur le
territoire national français. S’agissant d’une loi de police de protection, les conditions
d’application de l’article susmentionné sont plus strictes (nécessité d’un délit commis
sur le territoire français au détriment d’un distributeur français) (V. notamment Cass.
corn., 20 fèvr. 2007, na 04-17.752, Mimusa d YSLP: JurisData n" 2007-037496; JDI
2007, p. 1211, note S. Hotte. — plus généralement, V. Ch. Seraglini, Lois de police et
justice arbitrale internationale: Dalloz 2001).
Ce n’était pas le cas en l’espèce. Le contrat était exécuté au Brésil où la demanderesse
était d’ailleurs établie. La décision prise par la défenderesse de ne pas renouveler le contrat
dans ces circonstances ne pouvait produire d’effets particuliers sur le territoire français.
Les conditions d’application de l’article L. 442-6, 1, 5° du Code de commerce n’étant pas
réunies, le tribunal arbitral s’est attaché à rechercher si la rupture de la relation contrac¬
tuelle, selon le droit français, a été « imprévisible, soudaine et violente ». Cette démarche
;
n’est guère étonnante car un différend qui met en cause une loi de police n’en demeure pas
moins arbitrable. Comme expliqué par le Professeur Ch. Jarrosson dans l’affaire Labinal, «
[1]’arbitrabilité d’un litige n’est pas exclue du seul fait qu’une réglementation d’ordre
public est applicable au rapport de droit litigieux; en matière internationale, l’arbitre
apprécie sa propre compétence quant à l’arbitrabilité du litige au regard de l’ordre public
international et dispose du pouvoir d’appliquer les principes et les règles qui en relèvent
ainsi que d’en sanctionner la méconnaissance éventuelle, sous le contrôle du juge de
l’annulation » (CA Paris, 19 mai 1993; Rev. arb. 1993, p. 645, note Ch. Jarrosson. -
—
V. également R. Dupeyré, Note 8 juillet 2010, Cour de cassation (lre Ch. Civ.): Rev.
arb. 2010, n° 3, p. 515).
Le tribunal arbitral a écarté l’argument de la demanderesse en faisant prévaloir la
volonté des parties. En effet, s’agissant de deux opérateurs économiques importants, des
commerçants expérimentés, égaux avec le même pouvoir de négocier les termes contrac¬
tuels qui les lient, la demanderesse a volontairement accepté dès le départ et lors de sa
reconduction l’idée d’un préavis de six mois.
L’autonomie de la volonté des parties doit produire ses effets d’autant plus en l’absence
de circonstances particulières: les investissements de la demanderesse était faits en fonc¬
tion de ses intérêts, en dehors de toute intervention critiquable de la défenderesse. L’état de
dépendance économique alléguée ne peut s’induire de la seule exclusivité dans la mesure
où la demanderesse n’a pas réussi à prouver qu’elle était dans l’impossibilité de s’appro¬
visionner en produits substituables dans des conditions équivalentes.
Dans ces circonstances, le tribunal arbitral a considéré que la rupture du contrat par la
défenderesse ne pouvait être considérée comme brutale au sens de l’article L. 442-6, 1, 5°
du Code de commerce. Elle n’était pas:
(« imprévisible », car elle respectait à la lettre le mode de résiliation des rapports
contractuels prévu par le Contrat;
(« soudaine », car la Défenderesse avait formulé des reproches à la Demanderesse à
plusieurs reprises auparavant;
(« violente » car la Défenderesse était prête à faire des concessions importantes au
niveau du délai effectif de préavis de rupture des relations commerciales (ÿÿÿ).
Le tribunal arbitral a confirmé sa décision après avoir constaté les conditions dans
lesquelles la rupture du contrat été effectuée par la défenderesse conformément aux dis¬
positions de l’article 1134 (3) du Code civil.
La rupture a été exercée de bonne foi par la défenderesse qui n’a commis aucun abus de
droit à cet effet (V. plus généralement sur la rupture des contrats C. Truong, Les différends
liés à la rupture des contrats internationaux de distribution dans les sentences arbitrales
CCI: LexisNexis Litec 2002, p. 187 et s. - sur l’exigence de bonne foi qui est reconnue par la
majorité des systèmes juridiques, V. notamment M. Taok, La résolution des contrats dans
l’arbitrage commercial international: Delta/Bruylant/LGDJ 2009, p. 169 et s.
Vogenauer et J. Kleinheisterkamp, Commentary on the Unidroit Principles of
— S.
International Commercial Practice (PICC): OUP 2009, p. 167 (article 1.7 des
—
Principes UNIDROIT sur la bonne foi. V. également affaire CCI n° 10671 (bonne foi,
lex mercatoria): JDI 2006, p. 1417, obs.E. Silva-Romero; affaire CCI n° 6317 (1989): JDI
2003, p. 1156, obs. S. Jarvin).
Le tribunal arbitral rappelle ainsi clairement que la non-reconduction d’un contrat à
l'arrivée de son terme ne constitue pas en soi un comportement déloyal sauf à établir
l’attitude d’une partie propre à éveiller une attente ou confiance légitime de reconduction
du contrat chez son cocontractant. Selon les arbitres, « sauf circonstances particulières,
l’obligation de bonne foi trouve sa limite dans la liberté contractuelle: celle-ci permet à
■a
..i
chacun de tenir compte en priorité de ses propres intérêts en respectant les termes con¬
tractuels qui reflètent la commune et réelle intention (...) chaque partie reste libre de
chercher des solutions commerciales plus avantageuses pour elle pour autant qu’elle
respecte les termes contractuels et se comporte de manière loyale envers son cocontractant
(...) Ce n’est donc pas le rôle du juge ou de l’arbitre de corriger unilatéralement cet
équilibre contractuel en modifiant des clauses contractuelles prises isolément en fonction
des circonstances particulières (...)».
S. J.
C. T.-N.
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française)
I-
— —
Arbitrage multipartite. Appel en garantie.
partie à la convention d’arbitrage (non).
— Intervention de l’État
II.
in.
—— Compétence du tribunal arbitral.
Compétence du tribunal arbitral.
— Droit applicable.
— Liquidation judiciaire. _
Capacité du syndic.
—
IV. Convention d’arbitrage.
——
Opposabilité au non-signataire (oui).
Signature par un mandataire (oui). Stipulation pour autrui (non). Promesse
— —
de porte-fort (non).
V. —
Convention d’arbitrage. — Opposabilité au non-signataire (oui). —
Consentement. Partie—
l’exécution du contrat (oui).
concernée par —
le contrat (oui). Partie impliquée dans
VI.
—
—
Saisine de juridictions étatiques.
Renonciation à la convention d’arbitrage (oui).
—
—
VII. Frais d’arbitrage.
parties dans l’arbitrage (oui).
— Répartition. — Critères. — Comportement des
La procédure arbitrale à l’origine de la sentence analysée oppose le demandeur, per¬

sonne physique agissant ès qualités de syndic à la liquidation judiciaire de la société A, à la
société défenderesse qui s’ est portée acquéreur du portefeuille de clients de la société A
suite à la privatisation et mise en liquidation de celle-ci.
En effet, le litige trouve son origine dans le transfert du portefeuille de clients de la
Société A, société anonyme régie par la réglementation OHADA et dont un État africain
(« l’État ») était l’actionnaire majoritaire, à une société non contrôlée par cet État, con¬
formément aux exigences de la Banque mondiale et du Fond monétaire international.
À l’issue d’un appel d’offre, la défenderesse s’est vue attribuer ledit portefeuille. À cet
effet, l’État et la défenderesse ont conclu une « Convention de transfert de portefeuille »
(« la Convention ») qui a été modifiée au moyen de quatre avenants. Entretemps, la société
A a été mise en liquidation et un syndic de la liquidation a été désigné par le juge
-commissaire pour le suivi des opérations de liquidation. La Convention prévoyait le
recours à l’arbitrage en cas de litige. La société A n’était pas signataire de la Convention.
La clause d’arbitrage insérée dans la Convention prévoyait: « Tous différents découlant
du présent contrat ou en relation avec celui-ci seront tranchés définitivement suivant le
Règlement d’arbitrage de la Chambre de commerce internationale par un ou plusieurs
arbitres nommés par les parties ».
Le syndic de la société A a cru bon de devoirdemander l’annulation de la Convention, ce
qu’il a obtenu par ordonnance du juge-commissaire. En outre, le sSyndic a entamé plu¬
sieurs actions judiciaires devant les juridictions étatiques: deux actions en vue de la dés¬
ignation d’un expert, deux actions demandant l’autorisation d’un pointage contradictoire

des créances en recouvrement et de primes recouvrées, et une action en paiement de primes

dues.
Après toutes ces péripéties judiciaires, le syndic a finalement décidé de se prévaloir de la
clause compromissoire insérée dans la Convention conclue entre la défenderesse et l’État,
et d’entamer la procédure arbitrale à l’origine de la sentence commentée. La défenderesse a
contesté la compétence du tribunal arbitral et a demandé l’intervention de l’État. La Cour
de la CCI a décidé de ne pas joindre l’État à la procédure et a décidé, sur la base de l’article
6.2 du règlement d’arbitrage, que celle-ci se déroulerait uniquement entre le demandeur et
la société défenderesse. La Cour a aussi pris note de l’accord des parties pour désigner Paris
comme lieu de l’arbitrage.
Devant le tribunal arbitral, tout en maintenant son objection à la compétence, la défen¬
deresse a saisi le tribunal d’une demande d’appel en garantie de l’État.
Les parties ont toutes accepté la participation, à titre d’observateur, de l’Etat (qui a
soumis un mémoire préalable concernant l’appel en garantie) à la réunion pour l’établisse¬
ment de l’acte de mission et du calendrier de procédure. Les parties ont accepté de sou¬
mettre des mémoires sur les questions de compétence et d’intervention de l’État et ont
laissé au tribunal la faculté de les trancher avec le fond de l’affaire ou de façon préalable.
C’est cette dernière voie que le tribunal a emprunté.
Ainsi, la sentence analysée a pour objet de statuer (i) sur la compétence du tribunal
arbitral et, s’il retenait sa compétence, (ii) sur l’appel en garantie de l’État
Analyse du Tribunal arbitral
Sur la compétence, le Tribunal rappelle que la défenderesse estime que le demandeur ne
peut se prévaloir de la clause d’arbitrage parce que: (i) la société A (dont le demandeur est
le Syndic à la liquidation) n’était pas partie à la Convention, (ii) la clause d’arbitrage n’a
pas été transmise au demandeur et, en toute hypothèse, en saisissant les juridictions éta¬
tiques, (iii) le demandeur a créé une situation de litispendence et a renoncé à se prévaloir de
ladite clause.
Pour aborder la question de sa compétence, le tribunal considère nécessaire de
rechercher « la loi en vertu de laquelle le tribunal peut statuer sur sa compétence » et
conclut:
En l’absence d’un accord exprès des parties quant à la loi applicable à la clause
d’arbitrage et compte tenu des termes du Règlement CCI qui autorise l’arbitre à
« prendre toute décision sur sa propre compétence », sans lui prescrire d'appliquer
une loi étatique en particulier, le Tribunal déterminera la portée et les effets de la
clause d’arbitrage en se fondant sur la commune volonté des Parties et les usages
du commerce international.
Cependant, le Tribunal veillera, conformément à l’article 35 du Règlement CCI,
à ce que la sentence soit susceptible de sanction légale, i.e. s’assurera de la
compatibilité de son raisonnement avec l’ordre public international, en particulier
en France, lieu de l’arbitrage.
Sur la participation de la société A à la Convention contenant la clause d’arbitrage
À cet égard, le tribunal considère pertinent de rappeler certains faits qu’il considère
comme prouvés:
À titre préliminaire, le Tribunal constate que la Défenderesse soutient que [le
demandeur], « qui représente les intérêts des créanciers dans le cadre d’une structure
dissoute, ne peut réclamer plus de droits que les défunts organes sociaux ». Elle
reconnaît ainsi que si [la société A] devait être considérée comme pouvant se
prévaloir de la clause compromissoire stipulée à l’article 13 de la Convention, il
en serait de même pour [le demandeur]. [ ... ]

S
H

Parallèlement à cette Convention, le ministre de l’Économie et des Finances [de
l’État] a nommé M. X. comme Administrateur provisoire de la [société A] « chargé
de conduire jusqu a leur terme les opérations de privatisation de la [société A] et
de préparer la liquidation des portefeuilles non transférés ».
II ressort de ce qui précède que (i) la Convention a été signée uniquement entre
l’Etat et la défenderesse, fii) la Convention emporte disposition des biens de la
[société A] (transfert de son portefeuille à la défenderesse) et fiii) l’administrateur
provisoire était uniquement responsable des portefeuilles non transférés, i.e. ceux
qui n 'étaient pas objet de la Convention.
Le Tribunal arbitral doit ainsi déterminer si la [société A], et partant son Syndic
[demandeur à l’arbitrage], non signataire de la Convention, peut se prévaloir de la
clause compromissoire insérée dans celle-ci.
Le Tribunal arbitral constate qu’une convention d’arbitrage n’a d’effet qu’entre les
■A parties contractantes, de sorte qu’elle ne peut être invoquée à l’égard d’un tiers non partie
à ladite convention ni opposée par ce tiers à l'un de ses contractants. Toutefois, le tribunal
rappelle:
(...) fi) que rien ne s’oppose à ce que la convention d'arbitrage soit signée par
un mandataire et (ii) qu 'il est de jurisprudence constante que « les effets de la
clause compromissoire s'étendent aux parties directement impliquées dans
l’exécution du contrat dès lors que leur situations et leurs activités font présumer
qu’elles avaient connaissance de l’existence et de la portée de cette clause afin
que l’arbitre puisse être saisi de tous les aspects économiques et juridiques du
litige » (Cour d'appel de Paris, 7 décembre 1994: RTD com. 1995, p. 401,
romaint ajouté). Ainsi, il est largement admis que les effets de la clause
d’arbitrage peuvent être étendus à des tiers non signataires « lorsque les circon¬
stances de l'opération analysée démontrent l’existence d'une volonté commune
des parties à la procédure de considérer ce tiers comme étant concerné au
premier chef par cette opération ou comme étant une véritable partie à la con¬
vention énonçant la clause compromissoire, ou encore lorsque les circonstances
permettent de présumer que ce tiers a accepté sa soumission à ladite convention,
et a fortiori, s'il l’a expressément reconnu » (Sentence CCI n° 7604/1995;
S. Jarvin, Y. Derains et J.-J. Arnaldez, Recueil des Sentences Arbitrales de la
CCI, t. IV, p. 510; romain ajouté).
Le tribunal aborde donc dans un premier temps la possible représentation de la société
ABC. À cet égard, plusieurs possibilités sont examinées sur la base des allégations des
parties:
— Sur le Mandat
Les pièces soumises par les parties ne démontrent pas que l'État, en signant la
Convention et ses Avenants agissait au nom et pour le compte de la [société A].
Cependant, divers éléments peuvent être pris en considération pour déterminer que
l 'état agissait bien en tant que mandant de la [société A] :
— La [société A] est une société anonyme dont la personnalité juridique est distincte
de celle des actionnaires même majoritaires. Elle ne pouvait dès fors être engagée
sans mandat par l'Etat au titre de la Convention. En effet, l’Etat en signant la
Convention, procédait à une aliénation des actifs de la [société A], ce qui n 'aurait
dû se faire sans un mandat de ladite société propriétaire des biens transférés.
— Dans sa requête aux fins d’annulation d'une convention de cession d’actifs
immobiliers devant le juge-commissaire, [le syndic de la société A] demandait
l'annulation de la Convention aux motifs que l’Etat, « mandataire de la [société
A] », avait violé (i) ses obligations et (ii) les droits des actionnaires minoritaires
étrangers. Le Tribunal constate que cette qualification de mandataire n’a pas été
contestée par la Défenderesse.
:
— LaSurstipulation
la stipulation pour autrui
pour autrui correspond à une situation où deux parties à un
contrat, le stipulant et le promettant, entendent faire naître un droit au profit
d’un tiers bénéficiaire, étant précisé que l'acceptation de ce dernier n’est pas
une condition de la naissance de son droit.
Dès lors, est-il permis d’étendre au tiers la clause d’arbitrage figurant dans le
contrat liant le promettant et le stipulant?
La stipulation pour autrui « n’impliquant pas de représentation, le bénéficiaire
de la stipulation n'est lié que s’il a ultérieurement accepté ce mode de règlement
des litiges » (P. Fouchard, E. Gaillard et B. Goldman, Traité de l 'Arbitrage
Commercial International: LexisNexis Litec, p. 297.
Sociétés, p. 498).
— D. Cohen, Arbitrage et
La Cour de cassation, dans un arrêt de principe du 4 juin 1985, avait estimé que
le tiers ne pouvait se prévaloir de la clause compromissoire. Cependant, comme le
relève C. Larroumet, « la clause compromissoire doit lier le bénéficiaire de la
stipulation pour autrui, ce qui signifie qu’il peut l'invoquer comme elle peut être
invoquée contre lui. La raison en est que, non seulement le droit du bénéficiaire
nait en dehors de son acceptation par exception au principe de l'effet relatif des
contrats, mais encore et surtout que ce droit n’est que ce que le promettant et le
stipulant ont voulu qu’il soit. Ce droit résulte du contrat conclu entre eux et il ne
peut être envisagé en dehors de ce contrat. Dès lors, si le promettant et le stipulant
ont voulu une clause compromissoire, il ne parait pas possible de l’écarter en ce
qui concerne le tiers bénéficiaire [...]» (C. Larroumet, Promesse pour autrui,
stipulation pour autrui et arbitrage: Rev. arb. 2005, p. 903).
Le 11 juillet 2006, la Cour de cassation a adopté la position inverse, affirmant
que « la clause d 'arbitrage contenue dans le contrat liant le stipulant au promettant
peut être invoquée par et contre le tiers bénéficiaire d’une stipulation pour autrui »
(Cass. lre ctv., 11 juillet 1996: Rev. arb. 2006, p. 969, obs. C Larroumet).
II convient de préciser qu'une telle exception au principe de l’effet relatif des
contrats ne saurait être admise sans rechercher si le tiers avait connaissance de la
clause d’arbitrage.
Cependant, il ne semble pas que l 'on soit ici en présence d 'une stipulation pour
autrui. En effet, un tel mécanisme implique que seuls des droits naissent au profit
du tiers, sans obligation de sa part. Or, tel n’est pas le cas en l’espèce ainsi qu’il
sera dit ci-après.
— Sur la promesse de porte-fort
Dans sa demande d’arbitrage, le demandeur exposait qu'aux termes de la
Convention, « l’État, représenté par son ministre de l'Économie et des Finances,
se portant fort pour la société [société ABC], a cédé le portefeuille [ ... ] à la
Défenderesse » (Demande d’arbitrage, p. 3). Le Tribunal constate que la Défen¬
deresse n'a pas répondu cet argument.
La promesse de porte-fort « est l’ engagement d’un contractai envers un autre
de procurer le consentement d’un tiers, ce dont il résultera que le tiers sera lié par
le contrat s’il consent » (C. Larroumet, Droit civil. Les Obligations, Le Contrat, t.
III: Económica, § 826).
Dans le cadre d’une promesse de porte-fort, la Cour de cassation a décidé que
« l’application d’une clause compromissoire ne peut être étendue à des rapports
d’obligations qui ne résultent pas de la convention où elle est stipulée; dès lors une
cour d’appel a pu déduire d’une telle clause qu’elle était sans application à un
litige né de l’inexécution de l’obligation de garantie souscrite par un contractant
au profit de préteurs qui n’étaient ni parties, ni représentés à l’acte en cause mais
pour lesquels l’autre contractant s’était seulement porté fort de leur accord. »
(Cass. 1" civ., 16 juillet 1992: Rev. arb. 1993, p. 611).

-i:-:CüV JV- v-
A
~A.

Ainsi, dans les rapports entre le promettant et le bénéficiaire, la clause
d’arbitrage est obligatoire tant que le tiers ne ratifie pas la promesse; si le tiers
ratifie l’opération, le promettant est normalement libéré et le tiers devient partie
à la Convention. Il importe donc d’analyser si le tiers a, explicitement ou non,
ratifié l'opération, ce qui est une manifestation de sa volonté de contracter
(Ph. Delebecque, note ss Cass. lK cfv., 16 juillet 1992: Rev. arb. 1993, p. 611).
En tout état de cause, la notion de porte-fort est différente de celle de repré¬
sentation dans la mesure où la partie qui se porte fort pour autrui n‘engage qu'elle-
même, sans obliger la personne dont elle promet l'accord. En ¡'absence de preuve
d 'une ratification par la [société A] des engagements pris par l 'État, l 'argument du
Demandeur ne saurait être retenu.
Le tribunal aborde ensuite l’analyse du consentement des parties.
■4>- Seules peuvent en principe être attraites à la procédure arbitrale les parties qui ont
y
consenti à la clause compromissoire. Cependant, afin de déterminer si une per¬
* sonne non signataire du contrat est partie à la clause d’arbitrage, « il convient de
*:
ri.
déterminer si elle a eu la volonté de devenir partie au contrat dans laquelle elle est
insérée » (P. Mayer, note ss Cass. lre civ., 25 juin 1991: Rev. arb. 1991, p. 453). Le
Tribunal doit ainsi raisonner au moyen d’un faisceau d’indices incluant notam¬
ment les critères de contrôle d’une société par une autre, de représentation, de
participation à la négociation et à l’exécution du contrat pour déterminer s'il
convient d’étendre la convention d'arbitrage à la [société A],
R est incontestable que ni la Convention, ni ses avenants n’ont été signés par la
[société A].
De plus, rien dans la Convention ne permet de conclure que la [société A] a
participé à la négociation de la Convention ou encore a accepté d'être liée par la
convention d'arbitrage y figurant.
Enfin, la jurisprudence a estimé que « le contrôle étroit d'une personne jur¬
idique par l'État, soit le lien étroit existant entre celui-ci et celle-là, n 'est pas un
élément suffisant pour renverser la présomption résultant de l'absence de signa¬
ture de la clause compromissoire par l'État selon laquelle seule la société qui a
signé la clause est partie a l’arbitrage » (Aff. Westland: Rev. arb. 1989, p. 526). Dès
lors, le contrôle par l'État en tant qu’actionnaire majoritaire ne saurait justifier
d'ignorer la personnalité morale de la [société A] et l’absence de preuve de son
intention d'être liée par la clause compromissoire.
Cependant, et comme relevé par le Demandeur, la Convention n 'aurait pu être
conclue sans le consentement de la [société A], propriétaire du portefeuille visant à
être transféré. La [société A] était directement concernée par la Convention et sans
sa participation, la Convention aurait été dépourvue de tout objet.
De plus, la [société A] doit être considérée comme ayant implicitement accepté
la Convention ou à tout le moins l 'objet de celle-ci (le transfert de son portefeuille)
dans la mesure où elle a convoqué une assemblée générale, laquelle a pris acte de
la décision du Gouvernement de transférer son portefeuille.
[...]
Tant la Convention que ses avenants prévoyaient des prestations au bénéfice de la
[société A]. Si la jurisprudence arbitrale précise, à propos d’un contrat conclu par
un Etat et auquel le demandeur voulait attraire une société nationale, que « l’inclu¬
sion dans ce document de prestations au profit de cette société ne saurait suffire à
prouver son adhésion à l'ensemble des accords [...] et à établir son accord pour
être liée par la clause compromissoire figurant dans la convention initiale » ( Cour
d'appel de Paris, 16 juin 1998, Sté Swiss Oil d Sté Petrogab et République du
Gabon: Rev. arb. 1989, p. 309), tel ne semble pas être le cas en l'espèce.
En effet, si diverses prestations au bénéfice de la [société A] étaient stipulées,
cette dernière était également tenue à des obligations, notamment aux termes de
l’avenant n° 1.
Reprinted from the Climet 911

De plus, la [société A] était directement impliquée dans l’exécution de la Con¬

vention. En effet:
— Elle a participé, par le biais de son Administrateur provisoire, aux réunions du
Comité Paritaire de Suivi ayant pour objet le rapprochement des comptes courants
entre [société A] et la Défenderesse. Ce rapprochement des comptes était expres¬
sément prévu dans l’avenant n° 1.
— Elle a informé (i) les autorités concernées du transfert des dossiers d’avaries à
la Défenderesse conformément à la Convention et (ii) la Défenderesse de cette
correspondance.
II résulte de ce qui précède que si la Convention et ses avenants ont été signés
par l'Etat et non par la [société AB], la clause d'arbitrage insérée dans la Con¬
vention doit pouvoir être invoquée par la [société A] laquelle est directement
concernée par la Convention et par les litiges qui en découlent.
En ce qui concerne les effets de la saisine des juridictions étatiques, à plusieurs reprises,
par le demandeur, le tribunal rappelle que la plupart de ces recours ont précédé la procédure
arbitrale, et conclut:
L'arbitrage étant consensuel par nature, les parties peuvent renoncer à recourir à
l’arbitrage, une telle renonciation pouvant être expresse ou tacite. Le Tribunal
rappelle que le juge étatique saisi d’un litige à propos duquel une clause compro¬
missoire a été conclue ne peut soulever d’office son incompétence, les parties
comparaissant devant lui et n 'invoquant pas son incompétence devant être répu¬
tées avoir renoncé à la possibilité de porter leur litige devant un Tribunal arbitral.
R est admis que « Les parties renoncent [ ... J de manière implicite à la conven¬
tion d'arbitrage lorsque l'une des parties porte un litige devant une juridiction éta¬
tique et que l’autre se défend au fond sans contester sa compétence » (P. Fouchard,
E. Gaillard et B. Goldman, Traité de l’arbitrage commercial international: Lexis-
Nexis Litec, p. 457).
La saisine des juridictions étatiques doit cependant porter sur une demande au
fond qui aurait dû être soumise à l’arbitrage (CA Paris, 7 juillet 1994: Rev. arb.
1995, p. 107, note S. Jarvin). En effet, lorsque l’assignation n'est destinée qu’à
obtenir des mesures conservatoires ou provisoires, ces mesures ne peuvent être
considérées comme une limitation à l’étendue de la compétence du Tribunal arbi¬
tral (« la saisine des juridictions étatiques pour voir prononcer des mesures pro¬
visoires ou conservatoires ne s 'analyse pas en une renonciation au bénéfice de la
convention d’arbitrage sur le fond »: P. Fouchard, E. Gaillard et B. Goldman,
Traité de l’arbitrage commercial international: LexisNexis Litec, p. 728).
Les parties sont ainsi réputées renoncer implicitement à la convention
d'arbitrage lorsque:
— Elles portent le litige résultant d 'un contrat stipulant une clause d 'arbitrage
devant les juridictions étatiques. Ainsi, une partie qui a, dans un premier temps, «
invoqué la compétence d’une juridiction étatique, n'est plus recevable à se pré¬
valoir ultérieurement d’une convention d'arbitrage. » (Cass. 2e civ.. Il mars
1999);
— La saisine des juridictions étatiques porte sur me demande au fond qui aurait
dû être soumise à l’arbitrage (Cass. lre civ., 7 juillet 1994: Rev. arb. 1995, 107);
— La demande portée devant la juridiction étatique ne relève pas de la compétence
—
exclusive de cette dernière (Sentences CCI n° 6840 et n° 8910. S. Jarvin, Derains
et J.-J. Arnaldez, Recueil des sentences arbitrales de la CCI, t. III, 468 et t. IV,
p. 569);
— La partie défenderesse ne conteste pas la compétence des tribunaux étatiques
(P. Fouchard, E. Gaillard et B. Goldman, Traité de l’arbitrage commercial
—
international: LexisNexis Litec, p. 441, Sentence CCI n° 8910/1998. S. Jarvin,
Y. Derains et J.-J. Arnaldez, Recueil des sentences arbitrales delà CCI, t. IV p. 569).

T--— --.r.-.r.T:-!T757ÿ-.
---- ~
ITTTITsTl -1:
-J

II appartient ainsi au Tribunal arbitral de déterminer si le Demandeur, en
initiant diverses procédures devant les juridictions [de l’État], a renoncé à la
clause d'arbitrage figurant à la Convention et si la Défenderesse a accepté
cette renonciation.
[ÿÿÿ]
Indépendamment de ce qui précède, le Tribunal est d’avis que l’assignation en
paiement de la Défenderesse devant le tribunal de grande instance de l'Etat au titre
des primes recouvrées par la Défenderesse et non reversées à la [société A] aurait
dû relever exclusivement de la compétence du Tribunal arbitral. En effet, la clause
d'arbitrage stipule que « Tous différents découlant du présent contrat ou en rela¬
tion avec celui-ci seront tranchés définitivement suivant le Règlement d’arbitrage
de la Chambre de commerce internationale par un ou plusieurs arbitres nommés
Si'
par les parties ». Dès lors, la demande en paiement d’une somme en exécution de
cette Convention est indéniablement une demande « au fond » qui aurait dû être
* soumise à l’arbitrage.
ï- [...]
Enfin, le Tribunal note que le Demandeur expose que « les juridictions étatiques
■i saisies par le syndic sont notoirement incompétentes ». Cependant, c’est ce même
Demandeur qui est à l’origine des diverses procédures devant les juridictions
étatiques. Or, il n’est pas loisible aux parties à un contrat stipulant une clause
compromissoire de retenir comme bon leur semble la compétence de juridictions
différentes pour connaître de litiges issus de cette convention.
En vertu de l’article 17.2 du Règlement CCI, le Tribimal doit tenir compte des
usages du commerce international. Le principe de l’estoppel ou « principe d’inter¬
diction de se contredire au détriment d’autrui » est tin principe du droit du com¬
merce international (E. Gaillard, L’interdiction de se contredire au détriment
d’autrui comme principe général du droit du commerce international (le principe
de l’estoppel dans quelques sentences arbitrales récentes): Rev. arb. 1985, p. 241)
en vertu duquel « nul n 'est admis à se prévaloir de l’existence de faits contraires à
ses allégations précédentes » (CA Rouen, 2e ch. C, 25 novembre 2004: Gaz. Pal. 28
avril 2005, n° 118, p. 32).
Plus précisément, la Cour de cassation française a approuvé un arrêt qui avait
décidé « qu’une partie, qui a elle-même formé la demande d’arbitrage (...) et qui
a participé sans aucune réserve pendant plus de neuf ans à la procédure arbitrale,
est irrecevable, en vertu de la règle de l’estoppel, à soutenir, par un moyen contra¬
ire, que cette juridiction aurait statué sans convention d’arbitrage ou sur une
convention nulle f ... J » (Cass. 7™ civ., 6 juillet 2005: Rev. arb. 2005, p. 993).
Au vu de ce qui précède, le Demandeur ne saurait d’un côté intenter diverses
actions devant les juridictions étatiques pour ensuite exciper de leur incompétence
notoire devant le Tribunal arbitral.
Ceci est par ailleurs confirmé par l’adage « Nemo auditur pro priam turpitu-
dinem allegans » invoqué par le Demandeur.
Les Parties, à défaut d’avoir soulevé l’incompétence des juridictions étatiques,
doivent être réputées avoir renoncé au bénéfice de la clause d’arbitrage.
[ÿÿÿ]
Le Tribunal est d’avis que les demandes portées devant les juridictions étatiques
et celles présentées devant le Tribunal arbitral procèdent toutes de la même cause
et sont liées entre elles par une connexité réelle et juridique, à telle enseigne que
l’examen de la portée des obligations des parties peut donner lieu à deux inter¬
prétations différentes par des juridictions du même degré, ce qui pourrait être le
cas dans l’hypothèse où serait admise une compétence fragmentée.
[...]

Pour les motifs exposés ci-dessus, le Tribunal arbitral juge que les parties ont
renoncé à se prévaloir de la clause compromissoire stipulée dans la Convention. Il
se déclare ainsi incompétent pour connaître de la présente affaire.
Sur l’intervention de l’État, le Tribunal, s’étant déclaré incompétent, n’a pas vocation à
examiner l’appel en garantie de l’État.
Finalement, en ce qui concerne les frais de l’arbitrage, le tribunal conclut:
Comme rappelé ci-dessus, la règle établissant le pouvoir du Tribunal Arbitral de se
prononcer sur les coûts est prévue à l'article 31 du Règlement CCI. En ce qui
concerne les frais d'arbitrage, incluant les frais administratifs de la CCI, les
honoraires et frais des arbitres incluant la TVA, l 'approche générale est que le
remboursement incombe à la partie perdante.
Le Tribunal note que le Demandeur a, après avoir saisi les juridictions éta¬
tiques, nié durant la présente procédure la compétence de ces juridictions. De plus,
si le Demandeur pouvait, selon le Tribunal, se prévaloir valablement de la clause
d’arbitrage insérée dans la Convention, il doit être réputé avoir renoncé à ce droit
du fait de sa saisine des juridictions étatiques. Le Tribunal a ainsi estimé fondée
l’exception d’incompétence soulevée par la Défenderesse.
Néanmoins, le Tribunal est d’avis que la Défenderesse n’a pas œuvré de par son
attitude, à un déroulement serein de la procédure arbitrale, notamment en refusant
de payer sa part delà provision et en mettant en cause la qualité à intervenir de l’un
de ses confrères adverses. Elle a également contribué en grande partie à l’aug¬
mentation des frais en demandant la tenue d’une audience de plaidoiries alors que
le Tribunal arbitral s’était déclaré suffisamment informé. Enfin, à l 'issue de l’audi¬
ence de plaidoiries, la Défenderesse a adressé au Secrétariat une demande de
récusation du co-arbitre désigné par le Demandeur. Le Tribunal, sans se pronon¬
cer sur le bien-fondé de cette demande, ceci relevant exclusivement de la compé-
tence de la Cour d’arbitrage de la CCI, souhaite souligner que cette demande de
récusation est intervenue après l’audience de plaidoiries et en particulier après
que chacune des parties ait déclaré, conformément à l’Article 33 du Règlement
CCI, n’avoir aucune objection quant au déroulement de la procédure jusqu’à ce
jour.
Au vu de ce qui précède, le Tribunal estime qu’il serait injuste de faire supporter
au Demandeur l’intégralité des frais.
De ce fait, le Tribunal Arbitral décide que les frais de l’arbitrage CCI doivent
être partagés entre les parties mais de telle sorte que le Demandeur en garde la
majeure partie à sa charge [i.e. 60 % à la charge du demandeur et 40 % pour la
défenderesse],
NOTE, — I. — Voici une affaire qui nous interpelle au regard de la possibilité de
joindre une partie à l’arbitrage (la question de l’intervention des parties a déjà été l’objet
de quelques sentences arbitrales CCI: Sentence CCI n° 5333 de 1986, 4 ICLR 321: Rec.
CCI 1986- 1990, p. 495; sentence CCI n° 5625 de 1987, 4ICLR239: Rec. CCI 1986-1990,
p. 484. - V. aussi Complex Arbitrations, 14 Special Supplement, ICC Ct. Bulletin 2003).
Ce qui attire l’attention dans cette affaire est le fait que, tant la partie (défenderesse)
demandant l’intervention, que le « tiers » (l’État) dont l’intervention est demandée,
étaient (contrairement à la demanderesse), tous les deux signataires de la convention
d’arbitrage.
En effet, et de façon assez paradoxale, la demanderesse (le syndic nommé pour la
liquidation de la société A) n’étant pas signataire de la convention d’arbitrage qu’elle
invoquait, s’est vue immédiatement opposer une objection de juridiction doublée d’une
demande d’intervention adressée à l’encontre de l’État (qui fût l’actionnaire majoritaire de
la société A), lui-même signataire de la convention d’arbitrage et cocontractant de la

.....
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défenderesse. Ainsi, c’était plutôt le demandeur qui apparaissait comme un intrus dans la
relation contractuelle existante entre l’Etat et la défenderesse.
La sentence est avare de commentaires sur la procédure qui s’est déroulée devant la CCI
avant la saisine du tribunal arbitral, mais elle nous apprend que le demandeur s’est opposé à
l’intervention de l’État et que, nonobstant l’accord de principe donné par celui-ci (qui a
soumis un mémoire) pour participer dans l’arbitrage, la Cour de la CCI a refusé de le
joindre à la procédure (alors qu’il était partie à la convention d’arbitrage). En même temps,
la Cour a confirmé les co-arbitres désignés par les parties et permis la mise en œuvre de la
procédure sur la base de l’article 6(2) de son règlement d’arbitrage. Il faut donc se contenter
de supposer que les conditions requises par la pratique de la CCI pour autoriser ce type
d’intervention (V. A-M. Whitesell et E. Silva-Romero, Multiparty and Multicontract
S-
—
Arbitration Recent ICC Experience in Complex Arbitrations, ¡4 Special Supplement,
ICC Ct. Bulletin 2003) ne se trouvaient pas remplies.
» En tous cas, faisant preuve d’une grande expérience et d’habileté, le tribunal arbitral a pu
obtenir l’accord des parties et de l’Etat pour que celui-ci intervienne dans la procédure « à
.ÿ*
titre d’observateur » au moins pendant la phase de l’arbitrage portant sur la compétence du
tribunal. En effet, la défenderesse insistait pour que le tribunal tranche lui-même la
question de l’intervention de l’État dans la procédure arbitrale.
Malheureusement, nous n’en saurons pas d’avantage sur la possible intervention de
l’État, puisque le tribunal a fini par se déclarer incompétent estimant que les parties avaient
renoncé à se prévaloir de la convention d’arbitrage (V. infra VI) et la question de l’inter¬
vention de l’Etat n’a pas été abordée.
—
II et IR. Cette sentence évoque deux questions qui ne semblent pas avoir été au cœur
du débat entre les parties, mais qui revêtent, néanmoins, un certain intérêt dans la pratique
de l’arbitrage internationale.
Tout d’abord, le tribunal s’interroge sur la loi qui lui permettrait de statuer sur sa propre
compétence. Le tribunal semble assimiler loi applicable à la convention d’arbitrage et loi
qui régit les pouvoirs du tribunal arbitral (y compris son pouvoir de statuer en premier
ressort sur sa propre compétence). En effet, le tribunal se sent obligé de constater
« l’absence d’accord exprès des parties quant à la loi applicable à la clause d’arbitrage »
avant de viser les dispositions du règlement de la CCI (notamment, l’article 6(2)) et de
conclure qu’aucune « loi étatique » particulière ne le lie concernant sa décision sur sa
compétence.
La méthode choisie par le tribunal n’est pas très appropriée, même si le résultat emporte
l’adhésion. En effet, le pouvoir d’un tribunal arbitral de statuer sur sa propre compétence ne
trouve pas son origine dans l’existence ou la validité de la convention d’arbitrage. Encore
moins sur le règlement arbitral visé dans la convention, même si celui-ci est censé incor¬
porer un « principe général » du droit de l’arbitrage lorsqu’il autorise le tribunal arbitral à
« prendre toute décision sur sa propre compétence » (V. Régi. CCI, art. 6.2 et sentences CCI
—
«° 4131 de 1982: JDI 1983, p. 899; Rec. CCI 1974-1985, p. 465. Sentence CCI n° 5065
de 1986: JDI 1987, p. 1039; Rec. CCI 1986-1990, p. 330. -Sentence CCI n° 7604del995:
JDI 1998, p. 1027; Rec. CCI 1996-2000, p. 510 et, particulièrement, les observations
de D. Hascher). Si tel était le cas, en présence d’une convention inexistante ou invalide
(et donc incapable de conférer des pouvoirs), l’arbitre ne pourrait même pas rendre de
décision. L’origine de ce pouvoir (kompetenz-kompetenz) doit plutôt être recherché dans la
loi sur l’arbitrage de l’État siège de l’arbitrage ou, éventuellement, des États où la sentence
sera susceptible de reconnaissance ou d’exécution ou encore, pour certains, dans l’exis¬
tence d’un « ordre juridique arbitral » (V. E. Gaillard, Aspects philosophiques du droit de
l’arbitrage international: Martinas Nijhojf, 2008).
En se fondant sur « la commune volonté des Parties et les usages du commerce
international » les arbitres semblent emprunter, timidement, la voie d’un « ordre juridique

arbitral ». Le fait que l’arbitrage se déroule en France a, sans doute, conforté les arbitres
dans cette référence. En effet, à plusieurs reprises, les juridictions françaises ont eu recours
à une formulation similaire bien qu’à propos des conditions de validité de la convention
d’arbitrage (V. notamment CA Paris, 24 févr. 2005, Sidermetal c/ Arcelor: JCP 2005,
1179; Rev. arb. 2006, p. 210).
En ce qui concerne le fait que la société ABC soit en liquidation, question qui a aussi
suscité l’intérêt de la doctrine depuis plusieurs années (V. F. Mantilla Serrano,
— —
International Arbitration and Insolvency Proceedings: 11 Arb. Interntl., 1995, p. 69.
V. Lazic, Insolvency Proceedings and Commercial Arbitration: Kluwer, 1998. Ph.
Fouchard, Arbitrage et faillite: Rev. arb. 2003, p. 207. — D. Vidal Arbitration and
Insolvency Proceedings: ICC Ct. Bulletin, 2009, p. 51), le tribunal constate le pouvoir
du syndic pour ester en justice en représentation de la société en liquidation et confirme que
celui-ci peut invoquer les droits (y compris celui de se prévaloir d’une convention
d’arbitrage) de la société en liquidation (V. aussi Sentence CCI n° 7337 de 1996: YB
XXIVa 1999.149; Rec. CCI 1996-2000, p. 308).
—
IV et V. Dans la mesure où la société A (en liquidation), aux droits de laquelle venait
le demandeur, n’était pas signataire de la convention arbitrale invoquée, le tribunal arbitral
rappelle les critères dégagés par les sentences arbitrales, la jurisprudence française et la
doctrine pour étendre les effets d’une convention d’arbitrage à des non signataires, A cet
égard, il faut que la participation à la négociation, exécution ou résiliation du contrat soit de
nature telle qu’elle révèle, malgré l’absence de signature, une volonté d’être lié par le
contrat et donc par la convention d’arbitrage.
Le tribunal se demande d’abord si la société A a été représentée par l’État au moment de
la signature du contrat. Évoquant plusieurs possibilités (mandat, stipulation pour autrui,
promesse de porte-fort), le tribunal retient que, dans la mesure où le contrat entrainait la
disposition par l’État de droits et d’actifs appartenant à A, il y a un fort indice de ce que
l’État agissait aussi en tant que représentant de cette société. Le tribunal trouve réconfort
dans le fait que, devant les juridictions étatiques, la demanderesse a allégué que l’État était
mandataire de la société A sans que la défenderesse conteste cette allégation.
Le tribunal complète son raisonnement, en constatant que « la Convention n’aurait pu
être conclue sans le consentement de la [société A] » qui « était directement concernée » par
le contrat contenant la convention d’arbitrage et que cette société a accepté le contrat « dans
la mesure où, d’une part, elle a convoqué une assemblée générale, laquelle a pris acte de la
décision du Gouvernement de transférer son portefeuille » et, d’autre part, a accepté et
exécuté les obligations que lui imposait l’avenant n° 1 au contrat
—
VI. Le tribunal arbitral rappelle que les parties peuvent renoncer à une convention
d’arbitrage, notamment en saisissant les juridictions étatiques autrement compétentes sans
soulever l’existence de la convention d’arbitrage.
Pour constater que la demanderesse a renoncé à la Convention d’arbitrage, le tribunal
n’a fait que suivre une approche classique, déjà adopté dans d’autres sentences arbitrales
(V. Sentence CCI n° 10904 de 2002: YB XXXI 2006.95; Rec. CCI 2001-2007, p. 363.
Sentence CCI n° 8910 de 1998: JDI 2000, p. 1085; Rec. CCI 1996-2000, p. 569.
——
Sentence CCI n° 6840 de 1991: JDI 1992, p. 1031; Rec. CCI 1991-1995, p. 467). Pour
que la saisine d’une juridiction étatique emporte la renonciation à la Convention, il faut que
cette saisine comporte des demandes au fond qui auraient dû être soumises à l’arbitrage et
que la compétence de cette juridiction n’ait pas été contestée.
Ainsi, le Tribunal arbitral a considéré que si les demandes concernant la désignation
d’un expert et l’autorisation d’un pointage des créances concernant les primes recouvrées
ne valaient pas renonciation, la demande concernant le paiement de primes recouvrées et
non reversées, porte elle en revanche sur le fond et aurait du être soumise à l'arbitrage. Le

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tribunal en conclut que la saisine du juge étatique de cette dernière demande emporte
renonciation à la Convention d’arbitrage.
L’allégation de la demanderesse, soulevée a posteriori (i.e. seulement dans l’arbitrage),
concernant l’incompétence des juridictions étatiques, a permis au tribunal de rappeler à justé
titre le principe de l’interdiction de se contredire au détriment d’autrui, de l’assimiler au
principe dit de V estoppel et d’affirmer qu’il fait partie des principes du droit du commerce
international (V. Sentence CCI n° 10671: JDI 2006, p. 1417; Rec. CCI 2001-2007, p. 727).
VII. — S’agissant des frais de l’arbitrage, le tribunal fait usage de la liberté que
le règlement de la CCI (art. 31) laisse aux arbitres à cet égard et, prenant en compte le
comportement des parties, notamment le défaut de paiement par la défenderesse de
la provision demandée par la CCI, décide de faire supporter une partie des frais par la
*: défenderesse pourtant victorieuse dans cette arbitrage. À cet égard, le tribunal ne fait que
Í suivre une pratique bien établie de l’arbitrage commercial en général et particulièrement de
l’arbitrage CCI (V. Sentences n° 11426: JDI 2006, p. 1443; Rec. CCI 2001-2007, p. 751,
i"
——
obs. E. S.-R. Sentence n° 12167: JDI 2007, p. 1270; Rec. CCI 2001-2007, p. 777, obs. S.
J. etC. T.-N. Sentence n° 9613 de 1999: YB XXXII 2007.42; Rec. CCI 2001-2007, p. 463.
— Y. Derains et E. Schwartz, A guide to the ICC Rules of Arbitration, 2e ed.: Kluwer 2005,
p. 368-374).
F. M.S.

i
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_ • '
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- -T >::-r. y- m h-
I. —
Convention d’arbitrage. — Portée rationne materiae de la clause
compromissoire. — Compétence de l’arbitre. — Clause type d’arbitrage de la
CCI. — Article L. 442-6-1 du Code de commerce français. Nature —
contractuelle, délictuelle ou quasi délictuelle des demandes.
II. —
Règlement d’arbitrage CCI. — Mission de l’arbitre. — Acte de
mission (article 18 du Règlement d’arbitrage CCI). — Demandes nouvelles
(article 19 du Règlement d’arbitrage CCI).
HI. —
Droit applicable. — Application des règles de conflit du lieu de
l’arbitrage. — « Voie directe ». — Article L. 442-6-1 du Code de commerce
français. — Nature contractuelle, délictuelle ou quasi délictuelle des demandes.
L'arbitre unique rejette l’exception d'incompétence ratione materiae soulevée par la

Défenderesse sur la base de la nature non contractuelle des demandes de la Demanderesse
fondées sur les dispositions de l’article L. 442-6-1 du Code de commerce français, et se
déclare compétent pour connaître de ces demandes.
Il rejette également l'exception de recevabilité fondée sur le motif que les demandes
relatives à l’article L. 442-6-1 du Code de commerce dépassent les limites de la mission
conférée à l'arbitre par les parties.
L'arbitre constate que le contrat litigieux n 'a pas été prorogé par accord des parties et a
donc pris fin à la date d’échéance prévue.
Il décide que les conditions de l'article L. 442-6-1-2° (b) du Code de commerce ne sont
pas réunies et. par conséquent, il déboute la Demanderesse de sa demande fondée sur cette
disposition. Il constate également qu 'il n’y a pas eu de « rupture brutale » des relations
commerciales entre les parties au sens de l 'article L. 442-6-1-5° du Code de commerce, et,
par conséquent, il déboute la Demanderesse de sa demande fondée sur cette disposition.
L’arbitre unique condamne la Demanderesse à supporter 85 % des frais de l'arbitrage
et à rembourser à la Défenderesse 85 % de la moyenne des frais de défense encourus par les
parties.
Aux termes d’un contrat signé en 1997, la Défenderesse s’était engagée à fournir de
l’énergie électrique à la Demanderesse. Le contrat était censé rester en vigueur pendant
quatre ans, et pouvait se renouveler tacitement pour des périodes d’une année, sauf oppo¬
sition notifiée par l’une ou l’autre des parties trois mois avant la date d’échéance. Par un
premier avenant conclu en 2001, la durée du contrat fut portée à cinq ans, jusqu’au
31 décembre 2005. Un deuxième avenant conclu en 2004 confirma l’échéance en décembre
2005, sauf prolongation par accord des parties.
Un litige survint entre les parties suite à l’annonce faite par la Défenderesse en décembre
2005 que le contrat viendrait à échéance le 31 décembre 2005, et que les conditions prévues
ne pourraient plus s’appliquer à partir de janvier 2006.
La Demanderesse commença donc l’arbitrage en réclamant la compensation du préju¬
dice qu’elle soutenait avoir subi dans la mesure de la différence entre les tarifs prévus au
contrat et le prix payé pour l’énergie électrique achetée en 2006. La Demanderesse sou¬
tenait que les avenants n’avaient pas eu pour effet de modifier l’article VIII du contrat, qui
prévoyait la reconduction tacite du contrat d’année en année sauf préavis contraire signifié
Reprinted from the Chinet 985

par lettre recommandée trois mois auparavant. La Défenderesse n’ayant pas fait connaître
son intention de ne pasÿ vouloir reconduire le contrat de cette manière, le contrat avait été
tacitement reconduit. À titre subsidiaire, la Demanderesse invoqua les dispositions de
l’article L. 442-6-1 du Code de commerce français, qui obligent à réparer le préjudice
causé la partie qui abuse d’une relation de dépendance du partenaire contractuel ou qui
rompt brutalement une relation commerciale établie sans préavis adéquat.
La Défenderesse soutenait que la reconduction tacite du contrat avait été abandonnée lors
de la signature du premier avenant, qui prévoyait l’extinction de la relation contractuelle au
31 décembre 2005. Aux dires de la Défenderesse, le contrat avait bien pris fin en décembre
2005 conformément à ses stipulations, et la Demanderesse n'avait donc subi aucun pré¬
judice du fait de la Défenderesse, S’agissant de la demande subsidiaire de la Demanderesse,
la Défenderesse faisait valoir que les demandes fondées sur les dispositions de l’article L.
442-6-1 du Code de commerce était, d’un côté, exclues du champ d’application de la clause
compromissoire du fait de leur nature non contractuelle, et, de l’autre côté, hors des limites
de l’acte de mission. Sur le fond, la Défenderesse soutenait que les conditions prévues à
l’article L. 442-6-r du Code de commerce n’étaient pas réunies en l’espèce.
L’arbitre unique examina tout d’abord sa compétence à connaître des prétentions de la
Demanderesse fondées sur les dispositions de l’article L. 442-6-1 du Code de commerce. Il
observa qu’indépendamment de la nature contractuelle, délictuelle ou quasi-délictuelle de
ces demandes, la clause compromissoire contenue dans le contrat était rédigée de façon
suffisamment large pour couvrir des litiges autres que ceux qui trouvent leur origine directe
dans une disposition du contrat. En outre, il constata que les prétentions formulées par la
Demanderesse à titre subsidiaire concernaient la manière dont le contrat avait pris fins et
présentaient donc une relation suffisamment étroite avec la relation contractuelle pour
justifier l’application de la clause compromissoire. Par conséquent, il rejeta l’exception
de la Défenderesse dans les termes suivants:
« L 'objection soulevée par la Défenderesse pose ainsi la question de la portée
ratione materiae de la clause compromissoire contenue dans le Contrat. La Défen¬
deresse semble vouloir faire une distinction entre une clause dite « large » et une
clause dite « étroite »[ÿÿÿ]
Quoi qu'il en soit, on peut observer que la doctrine a tendance à se distancier de
plus en plus d 'une analyse purement sémantique des clauses compromissoires; elle
préfère considérer que la compétence d’un arbitre doit être refitsée exclusivement
dans les cas où la clause compromissoire la limite clairement aux litiges trouvant
leur origine dans l'inexécution du contrat [ ... ]
En l'espèce, la clause contenue dans l’article XI du contrat est la même que celle
que l'on trouve dans tous les contrats conclus entre les Parties depuis 1964.
Comme déjà mentionné, elle correspond à l’ancienne clause type de la CCI et
n'a jamais été mise à jour dans les conventions ultérieures. Rien n 'indique, cepen¬
dant, que les Parties aient ainsi voulu exclure la responsabilité délictuelle ou
quasi-délictuelle de la compétence des arbitres.
En outre, une interprétation même purement littérale de cette clause conduit à la
conclusion qu 'elle attribue à l’Arbitre la compétence de statuer sur tous « différ¬
ends » découlant du Contrat et qu'elle ne la limite donc pas aux seules « demandes
» (ou « prétentions ») pouvant se fonder directement sur une disposition contrac¬
tuelle. Par conséquent, un tel « différend » peut porter non seulement sur des
obligations stipulées dans le Contrat lui-même, mais inclure également les suites
que la loi donne à ces obligations selon leur nature (article 1135 du Code civil
français) [... }
Au vu de ces éléments, l’Arbitre estime que les prétentions fondées sur l’article
L. 442-6-1 du Code de Commerce ont une relation suffisamment étroite avec
— —
l 'exécution du contrat et plus particulièrement avec la manière dont cette exécu¬
tion a pris fin pour être couverte par la clause compromissoire. Par conséquent,

EE53SEKI3J3E?í.í. - rsÿr- -
V Arbitre rejette ¡'exception d'incompétence ratione raateriae soulevée par la

Défenderesse et admet sa compétence pour connaître des demandes fondées sur
les dispositions de l'article L. 442-6-1 du Code de commerce, sans examiner plus
avant la question de savoir si la responsabilité résultant de ces dispositions est de
nature contractuelle, délictuelle ou quasi-délictuelle ».
Il rejeta ensuite l’exception de recevabilité des demandes de la Demanderesse fondées
sur l’article L. 442-6-1 du Code de commerce. Il constata que ces demandes ne figuraient
pas dans l’acte de mission, dans lequel il avait été convenu que l’arbitre résoudrait tous les
points litigieux que les parties avaient soulevés dans leurs écritures déjà produites ou
qu’elles soulèveraient dans leurs écritures à produire. En outre, il constata que même à
supposer que les demandes en question soient qualifiées de « demandes nouvelles » au sens
de l’article 19 du Règlement CCI, les conditions d’admissibilité posées par cette disposi¬
MS" tion étaient réunies:
il
7?
« Il est exacte que de telles demandes n 'avaient pas été formulées dans la Demande
d'arbitrage et, par conséquent, elles, n 'étaient pas énumérées de manière exhaus¬
tive dans l'Acte de mission; au contraire, il y avait été convenu que l’Arbitre
»’• résoudrait tous les points litigieux que les Parties avait soulevés dans les écritures
déjà produites ou soulèveraient dans celles encore à produire.
Selon l’Article 19 du Règlement CCI, les arbitres peuvent autoriser ¡'introduc¬
tion de demandes nouvelles excédant les limites de l’Acte de mission, étant cepen¬
dant entendu qu'ils doivent tenir compte de la nature de ces demandes, de l’état
d’avancement de la procédure et de toute autre circonstance. En l’espèce, les
demandes fondées sur l’article L. 442-6-1 du Code de commerce reposent sur le
refus de la Défenderesse de poursuivre la relation commerciale sur la base dit
contrat et de ses avenants, tout comme celles s’appuyant sur l’interprétation de
certaines dispositions contractuelles dont l'interprétation est litigieuse. Les
demandes fondées sur l'article L.442-6-I du Code de commerce ont été formulées
dans la première écriture que la Demanderesse a produite après la signature de
l'Acte de mission. La Défenderesse a pu se prononcer sur ces demandes dans les
deux écritures qu 'elle a produites aux dates prévues par le calendrier prévisionnel.
Par conséquent, ces demandes nouvelles n'ont pas eu pour effet de freiner la
procédure ou de restreindre de quelque manière que ce soit les droits procéduraux
de la Défenderesse. Leur introduction dans la présente procédure aurait donc dû
être autorisée même si elles avaient été hors des limites de l’Acte de mission.
Il s 'ensuit que ces demandes doivent être examinées par l‘Arbitre sans qu'il soit
nécessaire d'analyser plus en détail la question de savoir si elles étaient hors des
limites de l’Acte de mission: l’objection soulevée par la Défenderesse contre leur
recevabilité est donc rejetée ».
Avant de passer à l’analyse du fond du litige, l’arbitre unique examina le droit appli¬
cable. Les parties ayant soumis le contrat au droit français, ce droit était applicable aux
prétentions de la Demanderesse fondées sur l’argument de la reconduction tacite du con¬
trat. En revanche, l’arbitre considéra que la détermination du droit applicable aux
demandes subsidiaires de la Demanderesse fondées sur l’article L. 442-6-1 du Code de
commerce dépendait de la qualification de la responsabilité instaurée par cette disposition
de contractuelle ou extracontractuelle. Cependant, il observa qu’en matière de respons¬
abilité délictuelle ou quasi délictuelle, le droit international privé français prévoit l’applic¬
abilité de la loi de l’État du lieu où le résultat de l’acte s’est produit (en l’espèce, la
Belgique) aussi bien que celle de l’État du lieu où le délit a été commis (en l’espèce, la
France). H décida donc d’appliquer le droit français aux prétentions de la Demanderesse
fondées sur l’article L. 442-6-1 du Code de commerce:
« La question aurait pu s'avérer plus délicate si l'on retenait la nature délictuelle
ou quasi délictuelle de cette responsabilité, car on aurait alors pu préférer

appliquer ta loi de l 'État du lieu où le résultat de l'acte s 'est produit, en l 'espèce le

droit belge [...] On notera cependant que la Cour de cassation française a eu
l'occasion de décider que le lieu où le délit a été commis «s’entend aussi bien de
celui du fait générateur du dommage que celui du lieu de réalisation de ce dernier ».
Quand bien même les arbitres siégeant en France ne sont pas tenus d’appliquer les
règles de conflit ordinaires de leur siège, l’Arbitre ne voit aucune raison de déroger
en l 'espèce à la solution préconisée par le droit international privé français et décide
d 'appliquer le droit français aux conséquences de ce que la Demanderesse considère
comme ayant été un abus de dépendance et une rupture brutale d’une relation
commerciale établie, que la responsabilité qui peut en résulter soit de nature con¬
tractuelle ou non ».
Sur le fond, l’arbitre constata que l’article VIII du contrat et l’article 7 des deux avenants
avaient le même objet, c’est-à-dire la durée du contrat. Cependant, l’article VIII du contrat
prévoyait la reconduction tacite, alors que l’article 7 des avenants s’inspirait du principe de
la prorogation par accord des parties. Reconduction tacite et prorogation par accord des
parties étant deux concepts différents et incompatibles, l’arbitre unique conclut que
l’article VIII du contrat avait été abrogé par l’article 7 des avenants, et que la prorogation
de la relation contractuelle entre les parties nécessitait donc l’accord des parties. Or, un tel
accord n’était jamais intervenu:
«Au vu de tous ces éléments, les demandes formulées par la Demanderesse devront
donc être rejetées dans la mesure où elles se fondent sur le principe de la tacite
reconduction du Contrat ».
L’arbitre aborda donc l’argument subsidiaire de la Demanderesse, qui se composait de
deux volets: (i) la Défenderesse avait abusé de la condition de dépendance technique et
économique dans laquelle la Demanderesse se trouvait (C. com., art. L. 442-6-1-2° (b)); et
(ii) la Défenderesse avait rompu brutalement la relation commerciale établie qui la liait à la
Demanderesse (C. com., art. L. 442-6-1-5°).
En ce qui concerne l’argument fondé sur l’article L. 442-6-I-2°(b) du Code, l’arbitre
constata que la Demanderesse n’était pas empêchée de s’approvisionner d’énergie auprès
d’autres fournisseurs, et qu’il n’y avait donc pas de relation de dépendance entre les parties.
Il estima en outre que la Demanderesse n’avait pas démontré que les prix proposés par la
Défenderesse en décembre 2005 pour la poursuite de la relation commerciale étaient « hors
de toute proportion » et que la Défenderesse avait abusé de sa puissance de vente. L’arbitre
débouta donc la Demanderesse de sa demande fondée sur l’abus de relation de dépendance.
Quant à l’argument de la Demanderesse fondé sur la « rupture brutale » d’une relation
commerciale établie (C. com., art. L. 442-6-1-5°), l’arbitre estima que la relation existant
entre les parties sur la base, entre autres, du contrat et de ses avenants, se qualifiait de
« relation commerciale établie », mais que la Défenderesse, qui avait annoncé à la
Demanderesse son intention de modifier les tarifs avec un préavis suffisant, ne pouvait
pas être tenue responsable de rupture brutale de cette relation. La demande fut donc rejetée:
« Il s'ensuit que le refus de la part de la Défenderesse de poursuivre la relation
commerciale aux conditions fixées par l'avenant n° 2 ne pouvait constituer une
surprise pour la Demanderesse. En d'autres termes, il semble qu’on ne puisse
considérer la modification tarifaire comme une rupture brutale de ladite relation;
au contraire, cette modification tarifaire avait été annoncée bien à l 'avance [ ... ]
la Demanderesse savait ou devait savoir depuis plus d'une année qu 'à partir du
Ier janvier 2006, elle ne pourrait plus bénéficier des conditions tarifaires fixées, du
moins en ce qui concerne leur principe, en 1997, c 'est-à-dire lors de la conclusion
du Contrat [ ... J Si, jusqu'au mois de décembre 2005, la Demanderesse est
néanmoins restée passive, elle ne saurait tenir la Défenderesse responsable de
la situation qui en a résulté [ ... ]

!
:

Au vu de ce gui précède, l’Arbitre ne peut que rejeter l'action fondée sur
l’article 442-6-1-5° du Code de commerce ».
En ce qui concerne les frais, l’arbitre uniq
ue énonça tout d’abord le principe selon lequel « les frais de l'arbitrage sont adjugés
contre la partie qui succombe » ou selon « me répartition qui reflète les succès relatifs que
les parties ont pu obtenir avec leurs demandes », tout en reconnaissant que « cette pratique
n’est pas universelle et les arbitres sont libres de décider autrement ». Cependant, il
constata que la répartition des frais en proportion du succès relatifs des parties se heurte
souvent à des difficultés pratiques:
« Une partie qui, en principe, a gagné la procédure ne peut pas avoir obtenu
entièrement gain de cause, car l’autre partie peut avoir manqué des points sur
des incidents ou certaines questions préliminaires. Des objections de nature pro¬
¥ cédurale soulevées par cette partie peuvent également avoir été rejetées [ ... ]
?ÿ>
Comment comparer, par exemple, le succès qu’une partie a obtenu sur une
question préliminaire ou une mesure provisionnelle avec le résultat que l’autre
a atteint sur le fond? Pour toutes ces raisons, la décision sur la répartition des frais
d’arbitrage ne pourra jamais être fondée sur une formule scientifiquement exacte,
mais comprendra toujours des éléments à caractère plus ou moins subjectifs ».
En exerçant son pouvoir discrétionnaire, l’arbitre décida donc de mettre 85% des frais de
l’arbitrage stricto sensu, c’est-à-dire des honoraires et des frais du tribunal arbitral, à la
charge de la Demanderesse, et 15 % à la charge de la Défenderesse. Quant à la répartition
des finis de défense, il appliqua la même proportion et ordonna à la Demanderesse de payer
à la Défenderesse un montant correspondant à 85 % de la moyenne des frais exposés par les
deux parties.
— —
NOTE. I. La Défenderesse contestait la compétence de l’arbitre unique à connaître
des demandes fondées sur les dispositions de l’article L. 442-6-1 du Code de commerce sur
la base de la formulation « étroite » de la clause compromissoire contenue dans le contrat et
de la nature non contractuelle des litiges afférents à ces dispositions.
La clause compromissoire était rédigée de la manière suivante:
« Tous différends découlant du présent contrat seront réglés définitivement suivant le
règlement de conciliation et d’arbitrage de la Chambre de commerce internationale, par un
ou plusieurs arbitres nommés conformément à ce règlement, le siège de l’arbitrage est fixé
à Paris ».
Comme observé par l’arbitre unique, la définition de la portée ratione materiae de la
clause correspondait à celle de clause type d’arbitrage de la CCI sous l’empire du
Règlement de 1988. L’interprétation restrictive de la Défenderesse se fondait sur la for¬
mulation plus large de la clause type proposée avec le Règlement CCI de 1998, applicable
en l'espèce, qui s’étend non seulement à « tous différends découlant du présent contrat »,
mais également à ceux « en relation avec celui-ci ». Sur la base de cette distinction, la
Défenderesse contestait l’applicabilité de la clause aux litiges relatifs à l’article L. 442-6-1
du Code de commerce, dont elle affirmait la nature non contractuelle.
La diffusion dans la pratique contractuelle des clauses type recommandées par les
institutions d’arbitrage a eu l’effet d’uniformiser l’interprétation des clauses compromis¬
soires (V. F. Gonzalez, La responsabilité délictuelle dans les sentences arbitrales de la
Chambre de commerce internationale: Bulletin de la Cour d'arbitrage de la CCI 2002,
n° 2, p. 46 : « plus la formulation se rapproche de la clause type proposée par la CCI, plus
l’analyse qu’en feront les arbitres est prévisible »).
La décision de l’arbitre unique de rejeter l’exception de la Défenderesse dans le cas
présent est conforme à la pratique et à la jurisprudence majoritaires, qui avaient reconnu
l ’applicabilité de la clause type proposée par la CCI antérieurement à 1998 à des

hypothèses de responsabilité extracontractuelle (V. Sentence rendue dans l'affaire n°

9517: Bulletin de la Cour d'arbitrage de la CCI 2002, n”2, p.8. - pour la jurisprudence
des États-Unis, V. JJ. Ryan & Sons, Inc. v. Rhône Poulenc Textile SA: 863 F.2d 315
—
(4th Cir. 1988). Contra, pour une interprétation restrictive, V. Sentence rendue dans
l'affaire n° 6309: JDI 1991, p. 1046, note J.-J. Arnaldez. - dans la jurisprudence des
États-Unis, V. Michele Amoruso e Figli v. Fisheries Development Corp.: 499 F.Supp.
—
1074, 180 (SDNY 1980). K.P. Berger, International Economie Arbitration: Deventer,
Boston, 1993, p. 124).
C’est justement afin d’éviter toute interprétation restrictive que la clause type de la CCI
de 1998, de laquelle se sont inspirées les clauses proposées par d’autres institutions
d’arbitrage (V. clause type de la London Court of International Arbitration :« Any dispute
arising out of or in connection with this contract »; clause type de 1’International Centre for
Dispute Resolution :« Any controversy or claim arising out of or relating to this contract »;
clause type de la Chambre arbitrale de Milan: « Tous différends découlant du présent
contrat ou en relation avec celui-ci ») a étendu la compétence arbitrale à tous différends
« en relation avec » le contrat. Cependant, la présente affaire démontre que la modification
du texte de la clause type pourrait encourager une interprétation restrictive a contrario de la
formulation plus ancienne.
La pratique arbitrale fait parfois abstraction de l’analyse sémantique de la clause com¬
promissoire en affirmant la compétence arbitrale sur les demandes extracontractuelles des
parties en raison du lien existant entre ces demandes et les prétentions des parties fondées
sur le contrat (V. Sentence rendue dans l 'affaire CCI «° 5779, citée dans la note de G.
Aguilar-Alvarez à la Sentence rendue dans l’affaire CCI «° 5477: JDI 1988, p. 1204.
—
Sentence rendue dans l'affaire CCI n° 6309, préc. Sentence rendue dans l’affaire CCI
—
—
n° 6519: JDI 1991, p. 1065, note Y. Derains. A. Carlevaris, Ambito oggettivo delV ac¬
corda compromisorio e arbitrabilità delle controversie non contrattuali: Rivista dell’ar¬
bitrai), 2010, p. 611). On retrouve un écho de cette tendance dans la sentence ici rapportée,
lorsque l’arbitre unique observe que « l’abus d’une relation de dépendance et la rupture de
la relation commerciale établie, dont se plaint la Demanderesse et sur lesquels l’Arbitre est
appelé à statuer, ont en effet pour origine l’absence d’une reconduction pure et simple du
Contrat contenant la clause compromissoire ».
On peut envisager une clause compromissoire excluant expressément la compétence
arbitrale sur les litiges de nature extracontractuelle, mais il s’agit d’une hypothèse très rare
dans la pratique. Comme souligné par l’arbitre unique, une telle volonté des parties ne
saurait être présumée (« la compétence d’un arbitre doit être refusée exclusivement dans le
cas où la clause compromissoire la limite clairement aux litiges trouvant leur origine dans
l’inexécution du contrat »). En l’absence d’une telle exclusion expresse, l’inteiprétation de
la clause devrait tenir compte de l’intérêt des parties de concentrer la résolution du litige
devant l’arbitre (V. F. Gonzalez, op. cit. p. 45).
Le second volet de l’exception de la Défenderesse portait sur la responsabilité fondée sur
les dispositions de l’article L. 442-6-1 du Code de commerce. Aux dires de la Défenderesse,
ces dispositions instaurant une responsabilité délictuelle la compétence de l’arbitre, qui est
limitée à la relation contractuelle, en serait exclue.
La nature de la responsabilité fondée sur l’article L. 442-6-1 du Code de commerce est
controversée dans la jurisprudence française. Certaines décisions ont affirmé que cette
responsabilité ne présuppose pas nécessairement l’existence actuelle d’une relation con¬
tractuelle entre les parties (y CA Montpellier, 11 août 1999, Quick Logistics et Services d
SA Geneviève Langlais, reproduite dans la note de R. Dupeyré, Cass., 8 juill. 2010: Rev.
arb. 2010, p. 521, qui a affirmé que l’article L. 442-6-1 « permet à la juridiction saisie
d’apprécier les conditions de rupture de toute relation commerciale établie qu’elle soit
précontractuelle, contractuelle et même post-contractuelle, dès lors que le législateur a
entendu condamner toutes ruptures de relations commerciales lorsqu’une des parties agit

-IL Uvj .2;:-
s
H
de mauvaise foi ». — Cass, com., 7 févr. 2007: Recueil Dalloz, 2007, p. 653 et s., note
E. Chevrier), alors que dans d’autres arrêts il a été affirmé qu’une « relation commerciale
établie » présuppose nécessairement l’existence d’un ou plusieurs contrats (Cass, com.,
22 oct. 2008: JCl. Périodique, 2008, II, 10187).
Comme rappelé ci-avant, l’Arbitre unique a évité de trancher la question de savoir si la
responsabilité fondée sur l’article L. 442-6-1 du Code de commerce est de nature contrac¬
tuelle, délictuelle ou quasi délictuelle, en affirmant qu’en l’espèce la clause compromis¬
soire n’excluait pas la responsabilité délictuelle ou quasi-délictuelle de la compétence des
arbitres. On retrouve la même approche dans un arrêt récent de la Cour de cassation, qui a
évité de se prononcer sur la nature abstraite de l’action en se fondant sur la formulation
large de la convention d’arbitrage et sur le lien étroit existant entre la relation contractuelle
T'
et les prétentions fondées sur l’article L. 442-6-1 du Code (Cass, com., 8 juill. 2010,préc.
CA Paris, 2 juin 2004, SA Cineco d Sté Shure Brothers Incorporated: Rev. arb. 2005,
—
i- p. 673 et s.).
8
■f
;y:
—
II. La Défenderesse contestait la recevabilité des demandes fondées sur l’article L.
442-6-1 du Code de commerce au motif qu’elles ne figuraient pas dans l’énumération des
points litigieux contenue dans l’acte de mission. L’Arbitre unique rejette l’exception en
relevant tout d’abord que l’Acte de mission ne contenait pas une énumération exhaustive
des points litigieux à résoudre, et, en second lieu, que les demandes en question étaient
recevables sur la base de l’article 19 du Règlement CCI.
« [À] moins que le tribunal arbitral ne l’estime inopportun », l’Acte de mission doit
contenir, entre autres, « une liste des points litigieux à résoudre »(Règl. CCI, art. 18, al.
1(d)). La faculté de ne pas inclure une liste de points litigieux a été introduite par le
Règlement CCI de 1998 afin de tenir compte du fait qu’au moment de la rédaction de
l’acte de mission les parties n’ont souvent pas encore développé leurs arguments de façon
suffisamment détaillée pour permettre au Tribunal arbitral d’identifier toutes les questions
à résoudre. En outre, l’identification des questions litigieuses pourrait elle-même s’avérer
difficile et retarder l’adoption de l’Acte de mission ou empêcher sa signature par une des
parties. Il est ainsi fréquent qu’au lieu d’énumérer les points litigieux, l’Acte de mission se
réfère aux questions soulevées par les parties, selon une formulation standard connue dans
la pratique comme « Goldman formula » (V. M. Schneider, The Terms of Reference: The
New 1998 ICC Rules of Arbitration: Bulletin de la Cour d’arbitrage de la CCI
Supplément spécial 1997, p. 26. — T. Webster, Terms of Reference and French
—
Annulment Proceedings: Journal of International Arbitration 2003, p. 582).
Dans le cas présent, l’Acte de mission prévoyait que l’Arbitre résoudrait non seulement
« tous les points litigieux que les Parties avaient soulevés dans les écritures déjà produites »,
mais aussi ceux que les parties « soulèveraient dans celles encore à produire ». Il s’agit
d’une pratique commune mais néanmoins douteuse, dans la mesure où elle prive l’article
18, alinéa 1(d), du Règlement CCI de son sens, qui consiste précisément à identifier les
points litigieux expressément, ou du moins par référence aux demandes déjà soulevées par
les parties dans leurs écritures antérieures. Cette pratique semble aussi confondre la
condition de la mention des prétentions des parties et celle de l’énumération des points
litigieux, qui sont au contraire deux conditions distinctes et cumulatives dans l'article 18,
alinéa 1, du Règlement.
C’est peut-être à cause de la nature peu orthodoxe de l’approche suivie lors de la
rédaction de l’Acte de mission que l’arbitre a évité de fonder sa décision uniquement
sur la formulation de l’Acte de mission (« ces demandes doivent être examinées par
l’Arbitre sans qu’il soit nécessaire d’analyser plus en détail la question de savoir si elles
étaient hors des limites de l’Acte de mission »). Cependant, au vu de la formulation large et
ouverte de l’Acte de mission, l’exception de recevabilité ne pouvait qu’être rejetée sur cette
base. D’ailleurs, la jurisprudence française a affirmé que la mission de l’arbitre est
:
délimitée par les prétentions des parties, et non seulement par l’énoncé des questions
litigieuses dans l’acte de mission (V, Cass, com., 6 mars 1996, Sté Farhat Trading
Company ci Sté Daewoo: Rev. arb. 1997, p. 69 et s., note J.-J. Arnaldez : « la mission
de l’Arbitre, définie par la Convention d’arbitrage, est délimitée principalement par l’objet
du litige, tel qu’il est déterminé par les prétentions des parties [ . . . ] la cour d’appel a
exactement retenu que les arbitres, investis par une clause d’arbitrage qui leur soumettait
« tout litige relatif au présent contrat », pouvaient statuer sur toutes les demandes qui leur
étaient soumises à cet égard, sans s’attacher uniquement à l’énoncé des questions liti¬
gieuses dans l’Acte de mission »). Les commentateurs du Règlement confirment que
l’énumération des points litigieux dans l’Acte de mission ne vise pas à limiter l’étendue
de l’arbitrage, mais plutôt à encourager les arbitres et les Parties à identifier les questions à
résoudre en début de procédure (V. Y. Derains et E. Schwartz, A Guide to the ICC Rules of
Arbitration: The Hague, 2005, p. 253: « The inclusion in the Rules of a requirement that the
issues be listed therefore derives not from any wish to limit the confines of the arbitration,
but rather from the desire to promote efficiency throught early identification of the ques¬
tions requiring resolution and possibly also to assist the parties and the arbitrators in
understanding the claims being made ». — W. Craig, W.W. Park et J. Paulsson,
International Chamber of Commerce Arbitration: New York, 2000, p. 275-276 ).
L’Arbitre a indiqué le fondement principal de la décision dans l’article 19 du Règlement
CCI. Il a relevé qu’à supposer qu’elles n’étaient pas couvertes par l’acte de mission, les
prétentions de la Demanderesse auraient dû être autorisées en tant que demandes nouvelles
au sens de cette disposition. L’article 19 prévoit qu’après l’adoption de l’acte de mission,
les parties ne peuvent formuler de nouvelles demandes « hors des limites de 1’acte de
mission » à moins que ces demandes n’aient été autorisées par l’arbitre, « qui tiendra
compte de la nature de ces nouvelles demandes principales ou reconventionnelles, de
l'état d'avancement de la procédure et de toutes autres circonstances pertinentes ». En
l’espèce, le lien étroit existant entre les demandes principales fondées sur l’interprétation
du contrat et les demandes subsidiaires fondées sur l’article L. 442-6-1 du Code, ainsi que le
fait que ces dernières avaient été formulées dans la première écriture produite par la
Demanderesse après l’acte de mission, justifiaient la décision de l’arbitre de les déclarer
recevables.
—
III. La détermination du droit applicable aux demandes fondées sur l’article L. 442-6-
I du Code de commerce posait pour la seconde fois à l’Arbitre unique le problème de
qualifier ces demandes, mais l’arbitre a encore une fois évité de trancher la question. Il a
relevé que le contrat prévoyait l’application du droit français et que l’application de ce droit
aurait donc été incontestable en cas de qualification de la responsabilité fondée sur l’article
L. 442-6-1 du Code de commerce comme étant de nature contractuelle. En revanche, si l’on
retenait la nature délictuelle ou quasi délictuelle des demandes, la mise enjeu des règles de
conflit aurait justifié l’application de la loi de l’État du lieu où le dommage s’était produit,
en l’espèce le droit belge. Cependant, Paris étant le lieu de l’arbitrage l’Arbitre s’est référé à
la jurisprudence française qui a étendu la notion de « lieu où le délit a été commis » non
seulement au lieu où le résultat de l’acte s’est produit mais aussi au lieu où le fait générateur
du dommage a été commis (en l’espèce, la France). Il a donc conclu à l’application du droit
français indépendamment de la nature contractuelle ou extracontractuelle de la respons¬
abilité fondée sur l’article L. 442-6-1 du code.
Le raisonnement de l'arbitre sur ce point paraît inutilement compliqué.
On note tout d’abord que les parties avaient choisi le droit applicable dans la clause
compromissoire, qui se référait à « tous différends découlant du présent contrat ». L’arbitre
ayant décidé que cette formulation couvrait toutes les demandes qui présentaient un lien
suffisamment étroit avec le contrat, et que tel était bien le cas des demandes fondées sur
l’article L. 442-6-1 du Code de commerce, le droit choisi par les parties aurait pu

v.iv

s’appliquer à ces demandes indépendamment de leur qualification. En d’autres termes,
l’éventuelle qualification de la demande comme étant de nature délictuelle n’aurait pas
nécessairement entraîné l’inapplicabilité de la loi choisie par les parties et l’application de
la lex loci commissi delicti. La pratique arbitrale tend à considérer le droit choisi par les
parties comme étant applicable à toutes les questions afférentes à la relation contractuelle, y
compris les demandes non fondées sur le contrat (V. Sentence rendue dans l’affaire CCl’n°
6618; Sentence rendue dans l'affaire CCI n° 9415; Sentence rendue dans l’affaire CCI n"
9651: H. Grigera Naon, Choice-of-Law Problems in International Commercial
Arbitration: Recueil des Cours de l’Académie de droit international, 2001, p. 263 et s.).
Cette solution est d’autant plus justifiée lorsque le pactum de lege utenda et la clause
compromissoire ont la même portée, comme dans le cas d’espèce. Elle permet de trancher
toutes les questions litigieuses soumises aux arbitres sur la base des mêmes règles de droit
w (G. Born, International Commercial Arbitration, Alphen aan den Rijn, 2009, p. 2216 et s.: «
Sfr
It is generally preferable to draft choice-of-law clauses with a scope that is identical to the
P parties' contractual dispute resolution mechanism. This enhances predictability, by
S
increasing the likelihood that quasi-contractual, tort, or statutory claims will also be
resolved according to the parties’ chosen law [ . . . J In general, the scope of choice-of-
law clauses should not be interpreted restrictively, but instead with a view towards sub¬
jecting the parties’ relationship to a single legal regime. This parallels a similar
interprEtative approach to the scope of arbitration agreements, which strongly favors
resolution of all disputes in a single forum »).
Le principe de l’autonomie des parties dans le choix du droit applicable indépendam¬
ment de la nature du rapport juridique en question paraît confirmé par le Règlement CCI
(art. 17, al. 1: « Les parties sont libres de choisir les règles de droit que le tribunal arbitral
devra appliquer au fond du litige ») et est aujourd’hui consacrée dans le Règlement n° 864
de 2007 sur la loi applicable aux obligations non contractuelles (Régi. « Rome II », art. 14 :
« Les parties peuvent choisir la loi applicable à l’obligation non contractuelle: a) par un
accord postérieur à la survenance du fait générateur du dommage; ou b) lorsqu’elles
exercent toutes une activité commerciale, par un accord librement négocié avant la sur¬
venance du fait générateur du dommage »; V. aussi le « considérant » n° 31 du Règlement:
« Afin de respecter le principe de l'autonomie des parties et de renforcer la sécurité
juridique, les parties devraient pouvoir choisir la loi applicable à une obligation non
contractuelle »).
À supposer que le choix du droit applicable contenu dans la clause compromissoire soit
limité aux seules relations contractuelles, la référence de l’arbitre unique aux règles de
conflit françaises pour identifier le droit applicable aux aspects non contractuels du litige ne
paraît pas justifiée. Tout en relevant que « les arbitres siégeant en France ne sont pas tenus
d'appliquer les règles de conflit ordinaires de leur siège », l’arbitre « ne voit aucune raison
de déroger en l’espèce à la solution préconisé par le droit international privé français ».
On peut « déroger » à une règle. Or, en l’espèce aucune règle n’imposait à l’arbitre de
fonder son choix du droit applicable sur le droit international privé français. Cette
approche, qui tend à identifier le siège de l’arbitre avec le for du juge, est désormais
obsolète (V. P. Fouchard, E. Gaillard et B. Goldman, On International Commercial
Arbitration: The Hague, Boston, London, 1999, p. 868). Elle ne se justifie ni sur la base
de l’article 1496 du couveau Code de procédure civile (CPP, art. 1511 après la réforme
récente: « Le tribunal arbitral tranche le litige conformément aux règles de droit que le
parties ont choisies, ou, à défaut d’un tel choix, conformément à celles qu’il estime appro¬
priées ») ni sur la base de l’article 17, alinéa I, du Règlement d’arbitrage CCI (« A défaut de
choix par les parties des règles de droit applicables, l’arbitre appliquera les règles de droit
qu'il juge appropriées »), qui permettent à l’arbitre de choisir directement les règles de
fond qu’il estime appropriées, sans passer par une règle de conflit quelconque. Il est vrai
que la méthode de la « voie directe » n’empêche pas aux arbitres de s’inspirer des règles de
!
conflit du lieu de l’arbitrage. Cependant, rien n’impose une telle démarche (P. Fouchard,
E. Gaillard et B. Goldman, op. ait. p. 868: « arbitrators sitting in France, for example,
■would be wrong to consider that such rules should take priority over other rules, or indeed
that they should be taken into account at all »). Bien au contraire, cette méthode impose à
l’arbitre de motiver sa décision par rapport aux règles de fond qu’il choisit et non par
rapport à celles de conflit (V. B. Goldman, Nouvelles réflexions sur la Lex Mercatoria,
Etudes dédroit international en l 'honneur de Pierre Lalive: Baie, Francfort-sur-le-Main,
1993, p. 253. — J.-F. Poudret et S. Besson, Comparative Law of International Arbitration:
London, 2007, p. 586-587). Une telle motivation est totalement absente dans la sentence,
qui au contraire contient des arguments pour parvenir à une solution différente (« Cette
solution [l’application du droit belge] aurait pu paraître d’autant plus justifiée dans un cas
comme celui-ci où l’auteur de l’acte savait ou devait savoir que le résultat se produirait
dans un autre Etat, en l’occurrence en Belgique »).
A. C.
Arbitrage international — Chambre de commerce internationale — Compétence maté¬
rielle du tribunal arbitral

4
Key-word Index
Index des mots-clés

LJÍ1.'."! .- :-ÿ :‘vZL.
P¡
Key-word Index (English)
Key-word in English Corresponding notion in French
Abuse of Right Abus de Droit

Adaptation of contracts Adaptation du contrat
Adhesion contract Contrat d’adhésion
Adjustment of price Ajustement du prix
Administrative contract Contrat administratif
Agency Contract Contrat d’agence commerciale
Amiable compositeur Amiable compositeur
Amiable composition Amiable composition
Anational rules Normes anationales
Applicable law Droit applicable
- to procedure - à la procédure
- to substance - au fond
- to arbitration agreement - à la convention d’arbitrage
Appointment of Arbitrator Nomination d’arbitre
Arbitrability Arbitrabilité
Arbitration Agreement Convention d’arbitrage
Arbitration Proceedings Procédure arbitrale
Arbitrator Arbitre
Armed conflict Conflit armé / Hostilités
Assignment Cession
Association contract Contrat d’association
Award Sentence
Bank guarantee Garantie bancaire

Bankruptcy Faillite
Barter trade Commerce de compensation
Bill of lading Connaissement
Bonos mores Bonnes mœurs
Boycott Boycottage
Breach of contract Violation du contrat; contravention
essentielle
Bribery Corruption
Brokerage contract Contrat de courtage
Cancellation of contract Annulation du contrat

Capacity to enter an arbitration agreement Capacité de compromettre
997
Changed circumstances Changement de circonstances

Charter contract Contrat d’affrètement
Claim Demande
Commission contract Contrat de commission
Company Société
Competence of arbitrator Compétence de l’arbitre
Competence-competence Compétence-compétence
Competition Concurrence
Concession Agreement Contrat de concession
Conciliation Conciliation
Concordat on Arbitration Concordat suisse sur l’Arbitrage
(voir : Suisse)
Condition depending on the will of a Condition potestative
contractual party
Confidentiality Confidentialité
Conflict of law rules Conflit de lois (Règles de - )
Consolidation of related arbitrations Jonction de demandes
Consortium contract Consortium
Construction contract Contrat de construction
Consultancy contract Contrat de consultance
Contract Contrat
Contract of carriage Contrat de transport
Contract for technical assistance Contrat d'assistance technique
Contract of works Contrat d’entreprise
Contractual penalty Pénalités contractuelles
Convention on Jurisdiction and the Convention de Bruxelles du 27 septembre
Enforcement of Judgments in Civil and 1 968 sur la compétence judiciaire et
Commercial Matters of 27 September 1968 l’exécution des décisions en matière civile
(Brussels Convention) et commerciale
Cooperation Coopération
Costs of arbitration Frais de l’arbitrage
Credit insurance Assurance-crédit
Criminal action Action pénale
Culpa in contrahendo Culpa in contrahendo
Costs of Arbitration Frais de l’arbitrage
Damages Dommages-intérêts / Préjudice

Delay Retard
Demurrage Surestaries
Devaluation Dévaluation
Development contract Contrat de développement
Dispute Différend
998
-ijzzzzzizz; i üj
Dissenting opinion Opinion dissidente

Distributorship contract Contrat de distribution, de représentation
Documentary credit Crédit documentaire
Equity Equité
Estoppel Estoppel
European Commission Commission de l’Union européenne
European Convention on International Convention européenne de Genève du 21
Commercial Arbitration (Geneva, 21 April avril 1961 sur l’arbitrage commercial
1961) international
European Court of Justice Cour de justice de l’Union européenne
European Law Droit européen
Evidence Preuve
Ex œquo et bono Ex œquo et bono
Exception non adimpleti contractus Exception non adimpleti contractus
Exchange losses Risque de change
Expert, Expert opinion Expert technique
Factoring contract Affacturage

Fait du Prince Fait du Prince
Fees of Arbitrators Honoraires des arbitres
FIDIC Conditions Fédération internationale des ingénieurs
conseils (FIDIC)
Force majeure Force majeure, Frustration
Foreign currency Monnaie étrangère
Foreign Exchange Regulations Contrôle des changes
Foreign Trade Credit Insurance Assurance-crédit
Fraud Fraude
Frustration Force majeure, Frustration
General conditions (of sale) Conditions générales (de ventes)

General principles of Law Principes généraux du Droit
Geneva Convention of 19 May 1956 on Convention de Genève du 19 mai 1956
International Carriage of Goods by Road relative au transport international de
marchandises par route (CMR)
Geneva Protocol of 21 September Í923 on Protocole de Genève du 21 septembre 1923
arbitration clauses relatif aux clauses d’arbitrage
Good Faith Bonne foi
Group of companies Groupe de sociétés
Guarantee Garantie
Hague Convention of June 15, 1955 on the Convention de La Haye du 15 juin 1955 sur
Law Applicable to International Sales of la loi applicable aux ventes à caractère
Goods d’objets mobiliers corporels
999
Hague Convention of July 1, 1964 relating to a Convention de La Haye du 1er juillet 1964
Uniform Law on the International Sale of portant loi uniforme sur la vente
Goods / ULIS internationale des objets mobiliers
corporels (LUVI)
Hague Convention of March 14, 1978 on the Convention de La Haye du 14 mars 1978
Law Applicable to Agency sur la loi applicable aux contrats
d’intermédiaires et à la représentation
Hague Convention of October 30, 1 985 on the Convention de La Haye du 30 octobre 1985
Law Applicable to Contracts for the sur la loi applicable aux contrats de vente
International Sale of Goods internationale de marchandises
Hague-Visby Rules (International Convention Convention internationale pour
for the Unification of certain Rules of Law l’unification de certaines règles en matière
relating to Bills of Lading) de connaissement (Règles de La Haye-
Visby)
Hardship Hardship
Hostilities Hostilités, conflit armé
ICC Conciliation Rules Règlement de conciliation de la CCI

ICC Arbitration Rules Règlement d’arbitrage de la CCI
ICC Rules for a Pre-Arbitral Referee Règlement de référé pré-arbitral de la CCI
Procedure
ICC Uniform Customs and Practice for Règles et usances uniformes (CCI) relative
Documentary Credits aux crédits documentaires
Incompetence of the Arbitrator Incompétence de l’arbitre
Incoterms Incoterms
Injunction Injonction
Insurance Assurance
Interest Intérêts
Interim and conservatory measures Mesures provisoires / conservatoires
Intellectual Property Propriété intellectuelle
International Arbitration Arbitrage international
International Centre for Expertise of the ICC Centre international d’expertise de la CCI
International Chamber of Commerce Chambre de Commerce Internationale
International commerce Commerce international
International customs Coutume internationale
International Court of Justice Cour internationale de Justice
International Organization Organisation internationale
International principles Principes de portée internationale
International tender Adjudication publique internationale
International trade usages Usages du commerce international
Interpretation of an arbitration agreement Interprétation de la convention d’arbitrage
1000
■■ . ]
Joint venture Consortium, contrat d’association
Lack of Consent Vices du consentement

Lease agreement Contrat de location
Legal representative of company Représentant légal d’une personne morale
Letter of credit Lettre de crédit / Crédit documentaire
Lex fori Lex fori
£
Lex loci solutionis Lex loci solutionis
rr Lex Mercatoria Lex Mercatoria
Licence and Supply Contract Contrat de fourniture et de licence
Lis pendens Litispendance
Lome Convention Convention de Lomé
Long term supply contract Contrat de fourniture de longue durée
Maintenance contract Contrat d’entretien / de maintenance

Mandatory Rules Lois de police
Maritime trade usages Usages du commerce maritime
Multiparty arbitration Arbitrage multipartite
Nationalization Nationalisation
Nemo auditur turpitudinem suam allegans Nemo auditur turpitudinem suam allegans /
Estoppel
New claim Demande nouvelle
New York Convention of 1958 (Convention Convention de New York du 10 juin 1958
on the Recognition and Enforcement of pour la reconnaissance et l’exécution des
Foreign Arbitral Awards, June 10, 1958) sentences arbitrales étrangères
Notice Mise en demeure
Novation Novation
Nullity of contract Nullité du contrat
OECD Convention of 17 December 1997 on Convention de l’OCDE du 17 décembre

Combating Bribery of Foreign Public 1997 sur la lutte contre la corruption
Officials in International Business d’agents publics étrangers dans les
Transactions transactions commerciales internationales
Offer and acceptance Offre et acceptation
Oil Pétrole
Pacta sunt servanda Pacta sunt servanda

Party Partie
Performance Bond Garantie de bonne fin
Place of arbitration Lieu de l’arbitrage
1001
Power of attorney Mandat

Prc-contractual liability Responsabilité précontractuelle
Pre-contractual relationship Relations précontractuelles
Price / Price Revision Prix / Révision du prix
Prima facie Prima facie
Promissory Note Billet à ordre
Proper law of the contract Proper law of the contract
Provisional enforcement of the award Exécution provisoire
Public International Law Droit international public
Public policy Ordre public
Rebus sic stantibus Rebus sic stantibus

Repudiation of contract Répudiation du contrat
Res judicata Autorité de la chose jugée
Review of the Constitutionality of a law Contrôle de constitutional par l’arbitre
Rome Convention of 1980 (Convention on the Convention de Rome du 19 juin 1980 sur la
Law Applicable to Contractual Obligations, loi applicable aux obligations
June 19, 1980) contractuelles
Sales/purchase contract Contrat d’achat/vente

Set-off Compensation
Settlement agreement Transaction
Sovereign immunity Etat souverain
Sponsorship agreement Contrat de mécénat
Stabilization clause Clause de stabilisation ou d’intangibilité
State contract Contrat d’État
Statute of limitation Prescription
Subcontract Sous-traitance
Supplier credit Crédit fournisseur
Surety {caution), meaning of Caution
Taxation Fiscalité
Termination Résiliation
Terms of reference Acte de mission
Tort Responsabilité délictuelle
Treaty of Rome Traité de la CEE
ULIS / Hague Convention of July 1, 1964 Convention de La Haye du 1er juillet 1964
relating to a Uniform Law on the International portant loi uniforme sur la vente
Sale of Goods internationale des objets mobiliers
corporels
UNCITRAL Arbitration Rules Règlement d’arbitrage de la CNUDCI
1002
ai'.
«j
'
UNCITRAL Model Law Loi modèle de la CNUDCI

UNIDROIT Principles Principes UN1DROIT
Uniform Customs and Practices for Règles et usances uniformes relatives aux
Documentary Credits crédits documentaires
Venire contra factum proprium Venire contra factum proprium 1 Estoppel

Vienna Convention on the Law of Treaties (23 Convention de Vienne sur le droit des
.f
May 1969) traités (23 mai 1969)
Vienna Sales Convention of April 11, 1980 on Convention de Vienne du 11 avril 1980 sur
Contracts for the International Sale of Goods les contrats de vente internationale de
marchandises
Visa Visa
Waiver Renonciation
War Conflit armé, hostilités
Warranty Garantie, conformité des marchandises
Washington Convention of March 18, 1965 on Convention de Washington du 18 mars
the Settlement of Investment Disputes 1965 pour le règlement des différends
between States and Nationals of Other States relatifs aux investissements entre Etat et
(ICSID) ressortissants d’autres Etats (CIRDI)
1003
í:.""1 ±-:-~
— UIüUú'ú'./' ’ • -I -
É
l’¬
Index des mots-clés (Français)
Mot-clé (Français) Notion ou rubrique correspondante

(Anglais)
Abus de droit Abuse of law

Acte de mission Terms of Reference
Action pénale Criminal action
Adaptation du contrat Adaptation of contracts
Adjudication publique internationale International tender
Affacturage Factoring contract
Ajustement du prix Adjustment of price
Amiable compositeur Amiable compositeur
Amiable composition Amiable composition
Annulation du contrat Cancellation of contract
Arbitrabilité Arbitrability
Arbitrage international International arbitration
Arbitrage multipartite Multiparty arbitration
Arbitre Arbitrator
Assurance Insurance
Assurance-crédit Foreign Trade Credit Insurance
Autorité de la chose jugée Res judicata
Billet à ordre Promissory note

Bonne foi Good faith
Bonnes mœurs Bonos mores
Boycottage Boycott
Capacité de compromettre Capacity to enter into an arbitration

agreement
Caution Surety (caution), meaning of
Centre international d’expertise de la CCI ICC International Centre for Expertise
Cession Assignment
Chambre de Commerce Internationale International Chamber of Commerce
Change Foreign Exchange Regulations /
Exchange losses
Clause de révision du prix Price revision
Clause de stabilisation ou d’intangibilité Stabilization clause
Commerce de compensation Barter trade
Commerce international International commerce
1005
(Anglais)
Commission de l’Union européenne European Commission

Compensation Set-off
Compétence de l’arbitre Competence of arbitrator
Compétence-compétence Competence-competence
Concession de distribution exclusive Distributorship contract
Conciliation Conciliation
Concordat suisse sur l’arbitrage Concordat on Arbitration (see
¡Switzerland)
Concurrence Competition
Conditions générales General conditions
Condition potestative Condition depending upon the will of
a contractual party
Confidentialité Confidentiality
Conflit de lois (règles de - ) Conflict of law rules
Conflit armé War, Hostilities
Connaissement Bill of lading
Consortium Consortium contract / Joint venture
Contrat Contract
Contrat d’adhésion Adhesion contract
Contrat administratif Administrative contract
Contrat d’affrètement Charter contract
Contrat d’agence commerciale Agency contract
Contrat d’association Association contract / Joint venture
Contrat d’assistance technique Contract for technical assistance
Contrat de commission Commission contract
Contrat de concession Concession agreement
Contrat de construction Construction contract
Contrat de consultance Consultancy contract
Contrat de courtage Brokerage contract
Contrat de distribution Distributorship contract
Contrat d’entretien / de maintenance Maintenance contract
Contrat d’entreprise Contract of works
Contrat d’Etat State contract
Contrat de développement Development contract
Contrat de fourniture et de licence License and supply contract
Contrat de fourniture de longue durée Long term delivery contract
Contrat de licence Licence contract
Contrat de location Lease agreement
Contrat de mécénat Sponsorship agreement
Contrat de sous-traitance Sub-contract
Contrat de transport Contract of carriage
Contrat de vente / d’achat Sales/purchase contract
1006
K.V.?X:£SC:
-i
Mot-dé (Français)
Notion OH rubrique correspondante
(Anglais)
Contrôle de constitutional par l’arbitre Review of the Constitutionality of a

law
Contrôle des changes Foreign exchange regulations
Convention d’arbitrage Arbitration Agreement
Convention de Bruxelles du 27 septembre Convention on Jurisdiction and the
1968 sur la compétence judiciaire et Enforcement of Judgments in Civil and
l’exécution des décisions en matière civile et Commercial Matters of 27 September
commerciale 1968 (Brussels Convention)
Convention européenne de Genève du 21 European Convention on
avril 1961 sur l’arbitrage commercial International Commercial Arbitration
international (Geneva, 21 April 1961)
Convention de Genève du 19 mai 1956 Geneva Convention of 19 May 1956 on
relative au transport international de International Carriage of Goods by
marchandises par route (CMR) Road
Convention de La Haye du 15 juin 1955 sur la Hague Convention of June 15, 1955 on
loi applicable aux ventes à caractère d’objets the Law Applicable to International
'
mobiliers corporels Sales of Goods
Convention de La Haye du 1er juillet 1964 Hague Convention of July 1, 1964
portant loi uniforme sur la vente relating to a Uniform Law on the
internationale des objets mobiliers corporels International Sale of Goods / ULIS
(LUVI)
Convention de La Haye du 14 mars 1978 sur Hague Convention of March 14, 1978
la loi applicable aux contrats d’intermédiaires on the Law Applicable to Agency
et à la représentation
Convention de La Haye du 30 octobre 1985 Hague Convention of October 30,
sur la loi applicable aux contrats de vente 1985 on the Law Applicable to
internationale de marchandises Contracts for the International Sale of
Goods
Convention de Lomé Lome Convention
Convention internationale (généralités) International convention (in general)
Convention internationale pour l’unification Hague-Visby Rules (International
de certaines règles en matière de Convention for the Unification of
connaissement (Règles de La Haye-Visby) certain Rules of Law relating to Bills of
Lading)
Convention de New York du 10 juin 1958 New York Convention of 1958
pour la reconnaissance et l’exécution des (Convention on the Recognition and
sentences arbitrales étrangères Enforcement of Foreign Arbitral
Awards, June 10, 1958)
Convention de l’OCDE du 17 décembre 1997 OECD Convention of 17 December
sur la lutte contre la corruption d’agents 1997 on Combating Bribery of Foreign
publics étrangers dans les transactions Public Officials in International
commerciales internationales Business Transactions
1007
(Anglais)
Convention de Rome du 19 juin sur la loi Rome Convention oí 1980

applicable aux obligations contractuelles (Convention on the Law Applicable to
Contractual Obligations, June 19,
1980)
Convention de Vienne du 23 mai 1969 sur le Vienna Convention on the Law of
droit des traités Treaties (23 May 1969)
Convention de Vienne du 11 avril 1980 sur les Vienna Sales Convention of April 11,
contrats de vente internationale de 1980 on Contracts for the International
marchandises Sale of Goods
Convention de Washington du 18 mars 1965 Washington Convention of March 18,
pour le règlement des différends relatifs aux 1965 on the Settlement of Investment
investissements entre Etat et ressortissants Disputes between States and Nationals
d’autres Etats (CIRDI) of Other States (ICSID)
Coopération Cooperation
Corruption Bribery
Cour de justice de l’Union européenne Court of justice of the European Union
Cour internationale de Justice International Court of Justice
Coutume internationale International custom
Crédit documentaire Documentary credit / Letter of credit
Crédit fournisseur Supplier credit
Culpa in contrahendo Culpa in contrahendo
Demande Claim
Demande nouvelle Amendment of claim
Dévaluation Devaluation
Différend Dispute
Dommages-intérêts Damages
Droit applicable Applicable law
- à la convention d’arbitrage - to validity of arbitration agreement
- au fond - to substance
- à la procédure
Droit européen
— to procedure
European Law
Droit international public Public international law
Entreprise commune Joint venture

Équité Equity
Estoppel Estoppel
État souverain Sovereign Immunity
Ex œquo et bono Ex aquo et bono
Exceptio non adimpleti contractus Exceptio non adimpleti contractus
Exécution provisoire Provisional enforcement of the award
1008
.
r. T
- , , irl'li I «'.ÿ.Vf. ■■
-!. . 1 -ÿÿÿ
:• -i-.-'-iS :• :•

(Anglais)
Expert technique Expert, Expert opinion
Faillite Bankruptcy
Fait du prince Fait du prince
FIDIC FIDIC / Engineer
Fiscalité Taxation
Force majeure Force majeure, Frustration
Frais de l’arbitrage Costs of arbitration
Fraude Fraud
Frustration Frustration
Garantie bancaire Bank guarantee

Garantie de bonne fin Performance bond
Garantie contractuelle Guarantee
Groupe de sociétés Group of companies
Guerre / Hostilités War / Hostilities
Hardship Hardship
Honoraires des arbitres Fees of Arbitrators
Hostilités Hostilities
Incompétence de l’arbitre Incompetence of the arbitrator

Incoterms Incoterms
Injonction Injunction
Intérêts Interest
Interprétation de la convention d’arbitrage Interpretation of an arbitration
agreement
Jonction de demandes Consolidation of related arbitrations
Lettre de credit Letter of credit / Documentary Credit

Lex fori Lex fori
Lex loci solutionis Lex loci solutionis
Lex Mercatoria Lex Mercatoria
Lieu de l’arbitrage Place of arbitration
Litispendance Lis pendens
Lois de police Mandatory mies
Loi modèle de la CNUDCI UNCITRAL Model Law
1009
j
(Anglais)
Mandat Power of attorney

Mesures provisoires/conservatoires Interim and conservatory measures
Mise en demeure Notice
Modifications des circonstances Changed circumstances
Monnaie étrangère Foreign Currency
Nationalisation Nationalization
Nemo auditur turpitudinem suam allegans Nemo auditur turpitudinem suam
allegans / Estoppel
Nomination d’arbitre Appointment of arbitrator
Normes anationales Anational rules
Novation Novation
Nullité du contrat Nullity of contract
Offre Offer
Opinion dissidente Dissenting opinion
Ordre public Public policy
Organisation internationale International Organization
Pacta sunt servanda Pacta sunt servanda

Parties Party
Pénalité contractuelle Contractual penalty / Liquidated
damages
Pétrole Oil
Préjudice Damages
Prescription Statute of limitation
Preuve Evidence
Prima facie Prima fade
Principes généraux du droit General principles of law
Principes de portée internationale International Principles
Principes UNIDROIT UNIDROIT Principles
Prix Price
Procédure arbitrale Arbitration proceedings
Proper law of the contract Proper law of the contract
Propriété intellectuelle Intellectual Property
Protocole de Genève du 21 septembre 1923 Geneva Protocol of 21 September 1923
relatif aux clauses d’arbitrage on arbitration clauses
Rebus sic stantibus Rebus sic stantibus

Règlement d’arbitrage de la CCI ICC Rules of Arbitration
Règlement d’arbitrage de la CNUDCI UNCITRAL Arbitration Rules
1010
-v-.ÿ > ■ ., -*i I - - - —.-fr- -
--
-1 iSE. :TTI-7i7ÿp;>yÿÿ
55

(Anglais)
Règlement de conciliation de la CCI ICC Conciliation Rules

Règlement de référé pré-arbitral de la CCI ICC Rules for a Pre-Arbitral Referee
Procedure
Règles et usances uniformes (CCI) relative Uniform customs and practices for
aux crédits documentaires documentary credits
Relations précontractuelles Pre-contractual relationship
Renonciation Waiver
Représentant légal d’une personne morale Legal representative of company
-
Résiliation (d’un contrat) Termination of contract / Rescission
Responsabilité délictuelle Tort
Responsabilité précontractuelle Pre-contractual Liability
Retard Delay
Risque de change Exchange losses
Sentence arbitrale Award

Société Company
Sous-traitance Subcontract
Sures taries Demurrage
Traité de Rome Treaty of Rome

Transaction Settlement agreement
Usages du commerce international International trade usages

Usages du commerce maritime Maritime trade usages
Venire contra factum proprium Venire contra factum proprium /

Estoppel
Vente / achat Sales / Purchase contract
Vices du consentement Lack of consent
Violation du contrat Breach of contract
Visa Visa
1011
!
.jjj... .. . • - -ÿ
---
~ _v_- l
&
Table of Cross-Referenced Cases
Table de correspondence des références

;
i
CASE/ Award REFERENCE: Obs.: Collection of
AFFAIRE rendered (JDI: "Journal du Droit ICC Awards/
in/ International”) Recueil:
Sentence (YB: "Yearbook Volume/
rendue en Commercial Arbitration”) page
(I.C.L.R.: “International
Construction Law Review”)
n° 369 1932 JDI 1974, 902 YD I 204

n° 519 1932 JDI 1974, 892 YD I 193
n° 536 1933 JDI 1974, 901 YD I 203
n° 953 1956 YB III (1978) 214 I 17
n° 1110 1963 JDI 1984, 921 YD I 498
1963 YB XXI (1996) 47 IV 1
n° 1250 1964 YB V (1980) 168 I 30
n° 1350 1968 JDI 1975, 931, YD I 239
n° 1397 1966 JDI 1974, 879, YD I 179
n° 1422 1966 JDI 1974, 884, YD I 185
n° 1434 1975 pi 1976, 978, YD I 263
n° 1455 1967 YB III (1978) 215 I 18
n° Ï5Û7 1970 pi 1974, 913, YD I 215
n° 1512 1967 YB V (1980) 170 I 33
1970 YB V (1980) 174 I 37
1971 YB I (1976) 128 I 3
JDI 1974, 905, YD I 207
n° 1526 1968 pi 1974, 915, YD I 218
n° 1581 1971 PI 1974, 887, YD I 188
n° 1598 1971 YB III (1978) 216 I 19
n° 1641 1969 JDI 1974, 888, YD I 189
n° 1675 1969 PI 1974, 895, YD I 197
n° 1677 1975 YB III (1978) 217 I 20
n° 1689 1970 JDI 1974, 886, YD I 186
n° 1703 1971 JDI 1974, 894, RT I 195
YB I (1976) 130 I 6
n° 1704 1977 JDI 1978, 977, YD I 312
n° 1717 1972 JDI 1974, 890, YD I 191
n° 1759 1972 JDI 1974, 886, YD I 186
n° 1776 1970 JDI 1974, 886, YD I 186
n° 1782 1973 JDI 1975, 923, YD I 230
n° 1784 1975 YB II (1977) 150 I 10
n° 1803 1972 YB V (1980) 177 I 40
n° 1837 1971 JDI 1979, 988, YD I 346
n° 1840 1972 YB IV (1979) 209 I 27
n° 1850 1972 JDI 1974, 910, YD I 213
n° 1939 1971 PI 1974, 919, YD I 222
1015
AFFAIRE rendered (JDI: “Journal du Droit ICC Awards/
Sentence (YB: “Yearbook Volume/
n° 1990 1972 JDI 1974, 897, YD I 199

YB III (1978) 217 I 20
n° 2068 1973 JDI 1974, 892, YD I 193
n“ 2073 1972 pi 1975, 932, YD I 240
n° 2074 1973 JDI 1975, 924, YD I 232
n° 2090 1976 YB VI (1981) 131 I 56
n° 2096 1972 JDI 1974, 886, YD I 186
n° 2103 1972 JDI 1974, 902, YD I 204
YB III (1978)218 I 21
n“ 2119 1978 JDI 1979, 997, YD I 355
n° 2129 1972 YB III (1978) 219 I 23
n° 2136 1974 JDI 1982, 993, YD I 456
n° 2138 1974 JDI 1975, 934, YD I 242
n° 2139 1974 JDI 1975, 929, YD I 237
YB III (1978) 220 I 23
n° 2142 1974 JDI 1974, 892, RT I 194
YBI(1976) 132 I 7
n° 2216 1974 JDI 1975, 917, YD I 224
n° 2249 1973 JDI 1974, 924, YD I 231
n° 2272 1975 YB II (1977) 151 I 11
n° 2291 1975 JDI 1976, 989, YD I 274
n° 2321 1974 PI 1975, 938, YD I 246
YBI(1976) 133 I 8
n° 2347 1979 JDI 1980, 961, YD I 376
n° 2374 1972 JDI 1978, 997, YD I 333
n° 2375 1975 PI 1976, 973, YD I 257
n° 2376 1976 pi 1977, 949, YD I 303
n° 2391 1976 JDI 1977, 949, YD I 302
n° 2404 1975 JDI 1976, 995, YD I 280
n° 2438 1975 JDI 1976, 969, YD I 253
n° 2443 1975 JDI 1976, 991, YD I 276
n° 2444 1976 JDI 1977, 932, YD I 285
n° 2462 1974 JDI 1975, 925, YD I 232
n° 2476 1976 JDI 1977, 936, YD I 289
n° 2478 1974 JDI 1975, 925, YD I 233
YB III (1978) 222 I 25
n° 2502 1977 JDI 1978,989, YD I 325
n“ 2508 1976 JDI 1977, 939, YD I 292
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AFFAIRE rendered (JDI; "Journal du Droit ICC Awards/
n° 2520 1975 JDI 1976, 992, YD I 278

n° 2521 1975 JDI 1976, 997, YD I 282
n° 2540 1976 JDI 1977, 943, YD I 296
n° 2546 1976 JDI 1977, 945, YD I 299
n° 2558 1976 JDI 1977, 952, YD I 306
n° 2559 1976 JDI 1977, 949, YD I 302
n° 2583 1976 JDI 1977, 950, YD I 304
n° 2585 1977 JDI 1978, 998, YD I 334
n° 2602 1976 JDI 1977, 949, YD I 303
n° 2605 1977 JDI 1978, 989, YD I 325
n° 2626 1977 JDI 1978, 981, YD I 316
n° 2637 1975 YB II (1977) 153 I 13
n° 2654 1976 JDI 1977, 949, YD I 303
n° 2673 1976 JDI 1977, 947, YD I 301
n° 2680 1977 JDI 1978, 997, YD I 334
n° 2689 1977 JDI 1978, 998, YD I 335
n° 2694 1977 JDI 1978, 985, YD I 320
n° 2730 1982 JDI 1984, 914, YD I 490
n° 2734 1972 pi 1978, 997, YD I 333
n° 2735 1976 JDI 1977, 947, YD I 301
n° 2745 1977 JDI 1978, 990, YD I 326
n° 2762 1977 JDI 1978, 990, YD I 326
n° 2763 1980 YB X (1985) 43 I 157
n° 2795 1977 YB IV (1979) 210 I 28
n° 2801 1976 PI 1977, 949, YD I 303
n° 2811 1978 JDI 1979, 984, YD I 341
n° 2879 1978 JDI 1979, 989, YD I 346
n° 2886 1977 JDI 1978, 996, YD I 332
n° 2930 1982 YB IX (1984) 105 I 118
n° 2977 1978 YB VI (1981) 133 I 58
n° 2978 1978 YB VI (1981) 133 I 58
n° 3031 1977 JDI 1978, 999, YD I 335
n° 3033 1978 YB VI (1981) 133 I 58
n° 3043 1978 JDI 1979, 1000, YD I 358
n° 3055 1980 JDI 1981, 937, YD I 422
n° 3086 1977 JDI 1978, 996, YD I 332
n° 3093 1979 PI 1980, 951, YD I 365
n° 3099 1979 YB VII (1982) 87 I 67
1017
n° 3100 1979 JDI 1980, 951, YD I 365

YB VII (1982) 87 I 67
n° 3130 1980 JDI 1981, 932, YD I 417
n° 3131 1979 JDI 1981, 922, YD I 407
YB IX (1984) 109 I 122
n° 3202 1978 JDI 1979, 1003, YD I 362
a" 3226 1979 JDI 1980, 959, YD I 374
n° 3235 1980 JDI 1981, 925, YD I 410
n° 3243 1981 JDI 1982, 968, YD I 429
n° 3267 1979 JDI 1980, 962, YD I 376
YB VII (1982) 96 I 76
1984 YB XII (1987) 87 II 43
n° 3281 1981 JDI 1982, 990, YD I 453
n° 3292 1980 JDI 1981, 924, YD I 409
n° 3316 1979 JDI 1980, 970, YD I 385
YB VII (1982) 106 I 87
n° 3327 1981 JDI 1982, 971, YD I 433
n° 3344 1981 JDI 1982, 978, YD I 440
n° 3380 1980 JDI 1981, 928, YD I 413
YB VII (1982) 116 I 96
n“ 3383 1979 JDI 1980, 978, YD I 394
YB VII (1982) 119 I 100
n" 3460 1980 JDI 1981, 939, YD I 425
n° 3472 1982 JDI 1983, 895, YD I 461
n° 3493 1983 YB IX (1984) 111 I 124
YB VII (1982) 124 I 105
n° 3572 1982 YB XIV (1989) 110 II 154
n° 3742 1983 JDI 1984, 910, YD I 486
n° 3779 1981 YB IX (1984) 124 I 138
n° 3790 1983 JDI 1983, 910, SJ I 476
YB IX (1984) 119 II 3
(1983) 1 I.C.L.R. 372 SJ II 447
n° 3820 1981 YB VII (1982) 134 I 115
n° 3879 1984 YB XI (1986) 127 II 11
n° 3880 1983 JDI 1983, 897, YD/SJ I 462
YB X (1985) 44 I 159
n° 3881 1984 JDI 1986, 1096, SJ II 257
n° 3894 1981 JDI 1982, 987, YD I 449
1018
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(I.C.L.R.: "International
n° 3896 1982 JDI 1983, 914, SJ I 481

YB X (1985) 47 I 161
n° 3902 1984 (1984) 2 I.C.L.R. 49 SJ II 452
n° 3913 1981 JDI 1984, 920, YD I 497
n° 3916 1982 JDI 1984, 930, SJ I 507
n° 3938 1982 JDI 1984, 926, SJ I 503
n° 3987 1983 JDI 1984, 943, YD I 521
n° 4023 1984 JDI 1984, 950, SJ I 528
n° 4126 1984 JDI 1984, 934, SJ I 511
n° 4131 1982 JDI 1983, 899, YD I 465
YB IX (1984) 131 I 146
n° 4132 1983 JDI 1983, 891, YD I 456
YB X (1985) 49 I 164
n° 4145 1983 YB XII (1987) 97 II 53
1984 JDI 1985, 985, YD I 559
YB XII (1987) 97 II 53
1986 YB XII (1987) 97 II 53
n“ 4156 1983 JDI 1984, 937, SJ I 515
n° 4187 1982 JDI 1983, 895, YD I 460
n° 4237 1984 YB X (1985) 52 I 167
n° 4265 1984 JDI 1984, 922, YD I 499
n° 4338 1984 JDI 1985, 982, YD I 555
n° 4367 1984 YB XI (1986) 134 II 18
n° 4381 1986 JDI 1986, 1103, YD II 264
n° 4392 1983 JDI 1983, 907, YD I 473
n° 4402 1983 YB IX (1984) 138 I 153
n° 4415 1984 JDI 1984, 952, SJ I 530
n° 4416 1985 JDI 1985, 969, SJ I 542
(1986) 3 I.C.L.R. 67 SJ II 462
n° 4434 1983 JDI 1983, 893, YD I 458
n° 4462 1985 YB XVI (1991) 54 III 3
1987 YB XVI (1991) 54 III 3
n° 4467 1984 JDI 1984, 924, X I 501
n° 4504 1985 JDI 1986, 1118, SJ II 279
1986 JDI 1986, 1118, SJ II 279
n° 4555 1985 JDI 1985, 964, SJ I 536
YB XI (1986) 140 II 24
1019
n° 4567 1984 YB XI (1986) 143 II 27

1985 YB XI (1986) 143 II 27
n° 4589 1984 YB XI (1986) 148 II 32
(1985) 2 I.C.L.R. 298 SJ II 456
n° 4604 1984 JDI 1985, 973, YD I 546
n° 4629 1989 YB XVIII (1993) 11 III 152
n° 4650 1985 YB XII (1987) 111 II 67
n° 4667 1984 JDI 1987, 1047, YD II 338
1985 JDI 1986, 1136, YD II 297
n° 4695 1984 YB XI (1986) 149 II 33
n° 4707 1986 (1986) 3 I.C.L.R. 470 SJ II 479
n° 4761 1984 JDI 1986, 1137, SJ II 298
1987 JDI 1987, 1012, SJ II 302
(1989) 6 I.C.L.R. 330 SJ II 521
n° 4840 1986 (1986) 3 I.C.L.R. 277 SJ II 467
n° 4862 1986 JDI 1987, 1018, SJ II 309
(1989) 6 I.C.L.R. 44 SJ II 510
n° 4972 1989 JDI 1989, 1101, GAA II 380
n° 4975 1988 YB XIV (1989) 122 II 165
n° 4996 1985 JDI 1986, 1132, YD II 293
n° 4998 1985 JDI 1986, 1139, SJ II 300
n° 5029 1986 YB XII (1987) 113 II 69
(1986) 3 I.C.L.R. 473 SJ II 482
n° 5030 1992 JDI 1993, 1004, YD III 475
n° 5065 1986 JDI 1987, 1039, YD II 330
n° 5073 1986 YB XIII (1988) 53 II 85
n° 5080 1985 YB XII (1987) 124 II 80
n° 5103 1988 JDI 1988, 1207, GAA II 361
n° 5117 1986 JDI 1986, 1113, YD II 274
n° 5118 1986 JDI 1987, 1027, SJ II 318
n° 5195 1986 YB XIII (1988) 69 II 101
n° 5269 1986 JDI 1987, 1029, SJ II 320
n° 5277 1987 YB XIII (1988) 80 II 112
n° 5294 1988 YB XIV (1989) 137 II 180
n° 5314 1988 YB XXI (1995) 35 III 309
n° 5333 1986 (1987) 4 I.C.L.R. 321 SJ II 497
n° 5346 1988 JDI 1991, 1060, YD III 414
n° 5418 1987 YB XIII (1988) 91 II 123
1020
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n° 5423 1987 JDI 1987, 1048, SJ II 339

n° 5428 1988 YB XIV (1989) 146 II 189
n° 5460 1987 YB XIII (1988) 104 I 136
n° 5477 1988 JDI 1988, 1204, GAA II 358
n° 5485 1987 YB XIV (1989) 156 II 199
n° 5514 1990 JDI 1992, 1022 YD III 459
n° 5548 1988 YB XVI (1991) 79 III 28
n° 5617 1989 JDI 1994, 1041 DH III 537
n° 5622 1988 YB XIX (1994) 105 III 220
n° 5625 1987 (1987) 4 I.C.L.R. 239 SJ II 486
n° 5634 1988 JDI 1994, 1034 DH III 530
n° 5639 1987 JDI 1987, 1054 SJ II 345
(1989) 6 I.C.L.R. 417 SJ II 528
n° 5649 1987 YB XIV (1989) 174 II 217
n° 5650 1989 YB XVI (1991) 85 III 34
n° 5713 1989 YB XV (1990) 70 II 223
n° 5721 1990 JDI 1990, 1020, JJA II 400
n° 5730 1988 JDI 1990, 1029, JJA II 410
n° 5759 1989 YB XVIII (1993) 34 III 175
n° 5779 1988 JDI 1988, 1206, GAA II 360
n° 5832 1988 JDI 1988, 1198, GAA II 352
(1990) 7 I.C.L.R. 421 GAA II 535
n° 5864 1989 JDI 1997, 1073 YD IV 485
n° 5865 1989 JDI 1998, 1008 DH IV 493
n° 5885 1989 YB XVI (1991)91 III 40
n° 5904 1989 JDI 1989, 1107, GAA II 387
n° 5910 1988 JDI 1988, 1216, YD II 371
n° 5943 1990 pi 1996, 1014 DH IV 431
n° 5946 1990 YB XVI (1991) 97 III 46
n° 5953 1989 JDI 1990, 1056, YD II 437
n° 5961 1989 JDI 1997, 1051 DH IV 465
n“ 5989 1989 YB XV (1990) 74 II 227
1989 JDI 1997, 1046 DH IV 461
n° 60572 1991 PI 1993, 1016, YD III 487
n° 6076 1989 YB XV (1990) 83 II 236
n° 6142 1990 JDI 1990, 1039, YD II 420
n° 6162 1990 YB XVII (1992) 153 III 75
n° 6197 1995 YB XXIII (1998) 13 IV 164
1021
n° 6219 1990 JDI 1990, 1047, YD II 427

n° 6230 1990 YB XVII (1992) 164 III 86
n° 6233 1992 YB XXI (1995) 58 III 332
n° 6248 1990 YB XIX (1994) 124 III 239
n° 6268 1990 YB XVI (1991) 119 III 68
n° 6281 1989 JDI 1989, 1114, GAA II 394
JDI 1991, 1054, DH III 409
YB XV (1990) 96 II 249
n° 6283 1990 YB XVII (1992) 178 III 100
n° 6286 1991 YB XIX (1994) 141 III 256
n° 6294 1991 JDI 1991, 1050, JJA III 405
n° 6309 1991 JDI 1991, 1046 JJA III 401
n° 6317
1
1989 JDI 2003, 1156 SJ V 623

n° 6320 1992 JDI 1995, 986 DH III 577
YB XXI (1995) 62 III 336
n° 6363 1991 YB XVII (1992) 186 III 108
n° 6378 1991 JDI 1993, 1018, DH III 489
n° 6379 1990 YB XVII (1992) 212 III 134
n° 6474 1992 YB XXV (2000) 279 IV 341
n° 6497 1994 YB XXIVa (1999) 71 IV 232
n° 6500 1992 JDI 1992, 1015, JJA III 452
n° 6503 1990 JDI 1995, 1022 YB III 613
n° 6515 1994 YB XXIVa (1999) 80 IV 241
n° 6516 1994 YB XXIVa (1999) 80 IV 241
n° 6519 1991 JDI 1991, 1065, YD III 420
n° 6527 1991 YB XVIII (1993) 44 III 185
nD 6531 1991 YB XVII (1992) 221 III 143
n° 6535 1992 JDI 1993, 1024, DH III 495
n° 6560 1990 YB XVII (1992) 226 III 148
n° 6573 1991 YB XXI (1995) 110 III 382
n° 6610 1991 YB XIX (1994) 162 III 277
n° 6648 1992 YB XXIII (1998) 30 IV 180
n° 6653 1993 JDI 1993, 1040 JJA III 512
JDI 1993, 1053 JJA III 525
n° 6670 1992 JDI 1992, 1010, JJA III 447
n° 6673 1992 JDI 1992, 992, DH III 429
n° 6709 1991 JDI 1992, 998, DH III 435
n“ 6719 1991 JDI 1994, 1071 JJA III 567
1022
7--7-1; -• •
Í:

AFFAIRE rendered (JDI:“Journal du Droit ICC Awards/
n° 6733 1992 JDI 1994, 1038 DH III 534

n° 6752 1991 YB XVIII (1993) 54 III 195
n° 6754 1993 JDI 1995, 1009 YD III 600
n° 6769 1991 JDI 1992, 1019, YD III 456
n° 6829 1992 YB XIX (1994) 167 III 282
n° 6840 1991 JDI 1992, 1031, YD III 467
n° 6850 1992 YB XXIII (1998) 37 IV 187
n° 6932 1992 JDI 1994, 1064 YD III 560
n° 6955 1993 YB XXIVa (1999) 107 IV 267
n° 6962 1992 YB XIX (1994) 184 III 299
n° 6998 1994 YB XXI (1996) 54 IV 7
n° 7006 1992 YB XVIII (1993) 58 III 199
n° 7047 1994 YB XXI (1996) 79 IV 32
n° 7063 1993 YB XXII (1997) 87 IV 75
n° 7081 1994 JDI 2003, 1132 SJ V 599
n° 7105 1993 JDI 2000, 1062 YD IV 548
n" 7139 1995 JDI 2004, 1272 YD-BD V 647
n° 7146 1992 YB XXVI (2001) 119 V 3
n° 7153 1992 JDI 1992, 1006, DH III 442
n° 7154 1993 JDI 1994, 1059 YD III 555
n° 7155 1993 JDI 1996, 1037 JJA IV 451
n° 7181 1992 YB XXI (1996) 99 IV 52
n° 7197 1992 JDI 1993, 1029, DH III 500
n° 7205 1993 JDI 1995, 1031 JJA III 622
n° 7263 1994 YB XXII (1997) 92 IV 80
n° 7301 1993 YB XXIII (1998) 42 IV 192
n° 7314 1995 YB XXIII (1998) 49 IV 198
n° 7319 1992 YB XXIVa (1999) 141 IV 300
n° 7331 1994 JDI 1995, 1001 DH III 592
n° 7337 1996 YB XXIVa (1999) 149 IV 308
n° 7385 1992 YB XVIII (1993) 68 III 209
n“ 7402 1992 YB XVIII (1993) 68 III 209
n° 7453 1994 YB XXII (1997) 107 rv 94
n° 7518 1994 JDI 1998, 1034 YD rv 516
n° 7528 1993 YB XXII (1997) 125 IV 112
n° 7539 1995 JDI 1996, 1030 YD IV 445
n° 7544 1995 JDI 1999, 1062 DH IV 533
n° 7563 1993 JDI 1994,1054 YD III 550
n° 7575 2002 JDI 2010, 1378 AC VI 803
1023
(I.C.L.R.: "International
n° 7585 1994 JDI 1995, 1015 YD III606

n° 7604 1995 JDI 1998, 1027 DH IV 510
n° 7626 1995 YB XXII (1997) 132 IV 119
n° 7639 1994 YB XXIII (1998) 66 IV 214
n° 7645 1995 YB XXVI (2001) 130 V 15
n° 7661 1995 YB XXII (1997) 149 IV 135
n° 7710 1995 JDI 2001, 1148 YD V 513
n° 7722 1999 YB XXXII (2007) 13 V 437
n° 7792 1994 JDI 1995, 993 DH III 583
n° 7893 1994 YB XXVII (2002) 139 V 67
n” 7920 1993 YB XXIII (1998) 80 IV 227
n° 7929 1995 YB XXV (2000) 312 IV 373
n° 7983 1996 JDI 2002, 1085 SJ V 567
n° 7986 1999 JDI 2002, 1071 YD V 553
n° 8032 1995 YB XXI (1996) 113 IV 66
n° 8035 1995 JDI 1997, 1040 DH IV- 455
a" 8113 1995 YB XXV (2000) 324 IV 385
n° 8128 1995 JDI 1996, 1024 DH IV 440
n° 8324 1995 JDI 1996, 1019 DH IV 435
n° 8331 1996 JDI 1998, 1041 YD IV 522
nD 8362 1995 YB XXII (1997) 164 IV 150
n° 8365 1996 JDI 1997, 1078 JJA IV 489
n° 8385 1995 JDI 1997, 1061 YD IV 474
n° 8420 1996 YB XXV (2000) 328 IV 389
n° 8423 1994 YB XXVI (2001) 153 V 39
1998 JDI 2002, 1079 JJA V 561
n° 8445 1996 YB XXVI (2001) 167 V 53
n° 8486 1996 YB XXIVa (1999) 162 IV 321
1996 JDI 1998, 1047 YD IV 527
n° 8501 JDI 2001, 1164 EJ V 529
n° 8528 1996 YB XXV (2000) 341 IV 402
n° 8547 1999 YB XXVIII (2003) 27 V 115
n° 8626 1996 JDI 1999, 1073 JJA IV 543
n° 8694 1996 JDI 1997, 1056 YD IV 470
n“ 8742 1996 JDI 1999, 1066 DH IV 536
n° 8782 1997 YB XXVIII (2003) 39 V 127
n° 8790 2000 YB XXIX (2004) 13 V 155
n° 8817 1997 YB XXV (2000) 355 IV 415
n° 8855 1997 JDI 2000, 1070 JJA IV 555
1024
s

n° 8873 1997 JDI 1998, 1017 DH IV 500

n° 8891 1998 JDI 2000, 1076 DH IV 561
n° 8910 1998 JDI 2000, 1085 DH IV 569
=2- n° 8938 1996 YB XXIVa (1999) 174 IV 333
n° 9163 2001 JDI 2005, 1283 YD-BD V 703
n° 9302 1998 YB XXVIII (2003) 54 V 141
n° 9333 1998 JDI 2002, 1094 SJ V 575
n° 9427 1998 YB XXVII (2002) 153 V 81
n° 9443 1998 JDI 2002, 1106 EJ V 589
n° 9466 1999 YB XXVII (2002) 170 V 97
n° 9608 1998 et JDI 2004, 1294 SJ V 669
1999
n° 9613 1999 YB XXXII (2007) 42 V 463
n° 9617 1999 JDI 2005, 1291 SJ-CTN 711
n° 9667 1998 JDI 2000, 1096 DH IV 579
n° 9762 2001 YB XXIX (2004) 26 V 167
n° 9771 2001 YB XXIX (2004) 46 V 187
n° 9781 2000 YB XXX (2005) 22 V 273
n° 9787 1998 YB XXVII (2002) 181 V 107
n° 9800 2000 JDI 2004, 1284 YD-BD V 659
n° 9839 1999 YB XXIX (2004) 66 V 207
n° 10060 1999 YB XXX (2005) 42 V 291
n° 10264 2000 JDI 2004, 1256 SJ V 629
n° 10274 1999 YB XXIX (2004) 89 V 229
n° 10329 2000 YB XXIX (2004) 108 V 249
n° 10377 2002 YB XXXI (2006) 72 V 341
n° 10422 2001 JDI 2003, 1142 EJ V 609
n° 10526 2000 JDI 2001, 1179 SJ V 545
n° 10527 2000 JDI 2004, 1263 EJ V 637
n° 10596 2000 YB XXX (2005) 66 V 315
n° 10671 JDI 2005, 1269 ESR V 689
JDI 2006, 1417 ESR V 727
n° 10758 2000 JDI 2001, 1171 JJA V 537
n° 10904 2002 YB XXXI (2006) 95 V 363
n° 10973 2001 YB XXX (2005) 77 V 327
n° 10982 2001 JDI 2005, 1256 YD-BD V 677
n° 10988 2003 JDI 2006, 1406 BD V 719
n° 11277 2003 JDI 2006, 1429 SJ-CTN V 737
n° 11307 2003 YB XXXIII (2008) 24 VI 3
1025
n° 11333 2002 YB XXXI (2006) 117 V _ 383

n° 11426 pi 2006, 1443 ESR V 751
n° 11440 2003 YB XXXI (2006) 127 V 393
n° 11443 2001 YB XXX (2005) 85 V 335
n° 11663 2003 YB XXXII (2007) 60 V 479
n° 11776 2002 JDI 2006, 1460 YD V 767
n° 11849 2003 YB XXXI (2006) 148 V 413
n° 11855 2003 JDI 2007, 1292 ESR V 797
n° 11869 2003 YB XXXVI (2011) 47 VI 573
n° 11961 2006 YB XXXIV (2009) 32 VI 135
n° 12045 2003 JDI 2006, 1434 SJ-CTN V 743
n° 12073 2003 YB XXXIII (2008) 63 VI 41
n“ 12112 YB XXXIV (2009) 77 VI 179
n° 12127 2003 YB XXXIII (2008) 82 VI 59
n° 12167 2002 JDI 2007, 1270 SJ-CTN V 777
n° 12172 2003 YB XXXII (2007) 85 V 503
n° 12173 2004 YB XXXIV (2009) 111 VI 213
n° 12193 2004 JDI 2007, 1277 ESR V 783
n° 12290 2005 JDI 2010, 1406 FMS VI 831
n” 12305 2004 JDI 2009, 1356 FMS VI 749
n° 12421 2005 YB XXXIII (2008) 102 VI 79
n° 12502 2005 YB XXXIV (2009) 130 VI 231
n° 12551 2004 pi 2007, 1301 BD V 807
n° 12711 2004 JDI 2006, 1454 EJ V 761
n° 12418 2004 JDI 2008, 1188 JJA VI 723
n° 12456 2004 JDI 2010, 1386 ESR VI 811
n° 12605 2005 JDI 2008, 1193 SJ-CTN VI 729
n°.12721 2007 JDI 2011, 1165 AC VI 885
n° 12745 2005 YB XXXV (2010) 40 VI 345
n° 12749 2005 JDI 2009, 1367 SJ-CTN VI 759
n° 12827 2005 PI 2009, 1376 ESR VI 767
n° 12855 2004 JDI 2009, 1393 SJ-CTN VI 781
n° 13009 2006 YB XXXVI (2011) 70 VI 595
n° 13085 2005 YB XXXIV (2009) 212 VI 311
n° 13129 2005 YB XXXIV (2009) 231 VI 329
n° 13133 2007 YB XXXV (2010) 129 VI 433
n° 13139 2005 JDI 2010, 1418 CTN VI 843
n° 13184 2006 YB XXXVI (2011) 96 VI 619
1026
n° 13278 2005 YB XXXIII (2008) 118 VI 95

n° 13387 2005 JDI 2010, 1427 BD VI 851
n° 13438 2005 JDI 2009, 1400 BD VI 789
n° 13507 2007 YB XXXV (2010) 158 VI 461
n° 13509 2006 JDI 2008, 1204 BD VI 739
n° 13646 2007 JDI 2010, 1434 FMS VI 859
n° 13763 2006 JDI 2011, 1174 JJA VI 893
n° 13676 2007 YB XXXV (2010) 168 VI 471
n° 13921 2006 JDI 2009, 1407 BD VI 795
n° 13954 2007 YB XXXV (2010) 218 VI 519
n° 14020 2008 YB XXXVI (2011) 119 VI 641
n” 14046 2007 YB XXXV (2010) 241 VI 543
n° 14108 YB XXXVI (2011) 135 VI 657
n° 14114 2007 JDI 2011, 1187 BD VI 905
n° 14241 2007 JDI 2011, 1199 SJ VI 917
n° 14243 2007 JDI 2010, 1448 AC VI 871
n° 14297 ■2007 JDI 2010, 1455 SJ-CTN VI 879
n° 14359 2007 JDI 2011, 1215 BD VI 931
n° 14470 2008 JDI 2011, 1229 ESR VI 945
n° 14637 2008 JDI 2011, 1244 SJ-CTN VI 959
n° 14753 2008 JDI 2011, 1257 FMS VI 973
n° 14817 2008 JDI 2011, 1268 AC VI 985
AC: Andrea Carlevaris

BD: Bertrand Derains
CTN: Corinne Truong-Nguyen
DH: Dominique Hascher
EJ: Emmanuel Jolivet
ESR: Eduardo Silva Romero
FMS: Fernando Mantilla Serrano
GAA: Guillermo Aguilar Alvarez
JJA: Jean-Jacques Amaldez
RT: Robert Thompson
SJ: Sigvard Jarvin
YD: Yves Derains
1027
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COLLECTION OF ICC ARBITRAL AWARDS. 2008-2011 VF PDF

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Collection of ICC Arbitral Awards

COLLECTION OF ICC ARBITRAL AWARDS

Jean-Jacques Arnaldez Yves Derains Dominique Hascher

Sold and distributed in North, Central and South America by:

Printed on acid-free paper

ISBN: 978 90 411 4916 9

The Authors vii

How to use this book? xi

Consolidated Analytical Table of Volumes I to VI xv

ICC Arbitral Awards 2008 - 2011 1

Key-word Index, 995

Table of Cross-Referenced Cases 1013

Les auteurs. vii

Introduction au Volume VI. x

Comment utiliser ce livre? xii

Table analytique consolidée des Volumes I à VI xv

Sentences arbitrales de la CCI 2008 - 2011 721

Index des mots-clés 1005

Table de correspondence des références 1013

The Authors / Les auteurs

Lecturer, University Panthéon-Sorbonne (Paris 1)

Lawyer, Paris Bar

Judge, Supreme Judicial Court (France)

4. La Table analytique du sixième volume couvre l’ensemble des sentences

5. A compter du second volume, la Table analytique consolidée renvoie à la

6. A la fin du volume VI, le lecteur trouvera une Table de correspondance des

How to use this book?

Second situation: the reader is looking for a specific issue

Paris, March 2013

Jean-Jacques Amaldez Yves Derains Dominique Hascher

Deuxième cas : le lecteur cherche une donnée spécifique

Un lecteur qui cherche un point particulier et ignore la terminologie exacte en

Le lecteur se reportera à la Table de correspondance des références et obtiendra au

Paris, mars 2013

Jean-Jacques Amaldez Yves Derains Dominique Hascher

Arb Int Arbitration International (London)

Bulletin ASA Bulletin de l’Association suisse de

Bulletin ICC/CCI The ICC International Court of Arbitration

ICLR The International Construction Law Review

JDI Journal du Droit International (Clunet)

JIA Journal of International Arbitration

Jahrbuch Jahrbuch fur die Praxis der Schiedsger-

RDAI Revue de Droit des Affaires Internationales:

Rev. Arb. Revue de l’Arbitrage (Paris)

YB ICCA Yearbook Commercial Arbitration

Consolidated Analytical Table

Table analytique consolidée

distributorship contract was not an- I 199

Markets III 555

- and delay in the submission of briefs I 433

and calculation of interest I 348

anational substantive rule I 229, 236

See also Applicable Law, to substance

Applicable law, to arbitration agreement

parties of a national law II 330

and compliance with the public policy of the place of

arbitration and of the place of enforcement of the

law of the seat of arbitration I 207, 399

interpreted as a renvoi to the private international

- closest connection to F.O.B. sale of goods contract II 223

- nationality of the arbitrator chosen by the parties I 418

common sense rules shared by civilized nations may

Lex loci solutionis I 347