Determination of Applicable Substantive Law / due process / necessity of an interim award, no/ amiable composition/ application and interpretation of the contract/ common rules of national laws concerned / international trade usages / legal expectations of the parties involved.

'Concerning the law applicable to the merits, the Terms of Reference stipulated that the Tribunal would have the responsibility of its determination in compliance with the terms of article 13.3 of the ICC Rules of Arbitration and article 1496 of the New French Code of Procedure.(...)

The parties have also explicitly conferred upon the Arbitral Tribunal the power of amiable compositeur (Terms of Reference, art. IV).

These stipulations have been exacted out by the Claimant parties in their first submissions. They pointed out correctly that the parties have never, in their contracts, inserted a clause concerning the applicable law and that they have left it to the Tribunal to come to a decision about this matter. They feel that the parties have implicitly intended to elude state legislation in this present dispute, by way of the stipulation stated in the clause of amiable composition, reference to Incoterms, international trade usages, and the designation of the ICC as the center for institutional arbitration. This clause has never been contested by the defendants.

However, on several occasions, during the legal discussion assigned to particular details, the parties referred in writing to certain points of French law, not that these references have raised on the part of the other party the least objection or lead to a debate on the question.(...)

The Arbitral Tribunal does not consider it necessary to issue a preliminary award concerning the applicable law to the merits in order to ensure due process. It has been observed effectively that each party could, throughout the proceedings, justify its arguments based on those rules which it found pertinent, in the absence of all discussion or disagreement concerning their applicability to the present case. Also the claimant's last statement does not indicate a desire to illustrate the concrete utility of reopening the debate concerning the applicable substantive law after the rendering of a partial award. Under these circumstances, the Arbitral Tribunal refuses to prolong any longer proceedings which have lasted more than 2 years, and determines here by its final award, and only inasmuch as this determination is useful for the motivation of its award, the rules of the applicable law to the merits.

The parties having mentioned one after the other, but nonetheless sporadically, Tunisian and French legislation, the first being that of the seller's enterprise and the place of delivery, the second, that of the companies of two out of three buyers and the place of arbitration, the Arbitral Tribunal will take into consideration these indications of localisation. These two systems being relatively close in contractual matters, the Arbitral Tribunal will decide, when necessary, according to those rules governing obligations and contracts common to both French and Tunisian laws. It is only where, pertaining to a specific question, the solutions given by these two systems differ and where it would be appropriate to apply a state law, that the Arbitral Tribunal will proceed to do so. But chiefly it will apply contractual stipulations; it will take into account trade usages, and it will assume, when necessary, the powers of amiable compositeur.

These references coincide with the legal expectations of the parties involved.'