Dans le cadre d'un contrat de construction (« Main Contract ») conclu entre le défendeur et X, le défendeur confiait en sous-traitance au demandeur, aux termes d'un "Agreement", la fourniture, l'installation et la maintenance d'ouvrages électriques. Le demandeur prétend que le défendeur aurait abusivement retenu des sommes dues et refusé de donner mainlevée des garanties de bonne fin qui avaient été émises, en dépit de l'achèvement des travaux et bien que le défendeur ait lui-même obtenu paiement dans le cadre du contrat principal de construction. Le demandeur réclame des dommages-intérêts et la mainlevée des garanties de bonne fin. Le défendeur prétend pour sa part que la demande d'arbitrage du demandeur est irrecevable et que ses demandes sont prescrites ou frappées d'estoppel et introduit une demande reconventionnelle en dommages-intérêts. Le tribunal arbitral, dans une première sentence intérimaire, détermine le droit applicable au fond du litige, rejette le moyen de défense du défendeur relatif à l'irrecevabilité et approuve en partie/rejette en partie son argument en défense relatif à la prescription et à l'estoppel. Dans une deuxième sentence intérimaire, le tribunal arbitral rejette la demande soumise par le défendeur visant au prononcé d'ordonnances provisoires à titre conservatoire. Dans une troisième sentence intérimaire, le tribunal arbitral rejette certaines demandes du demandeur, considère que d'autres sont sans objet et accepte d'autres demandes en leur principe, reportant à plus tard la détermination du montant. La demande reconventionnelle du défendeur est considérée comme recevable, en raison de la responsabilité du demandeur, le montant des dommages-intérêts devant être fixé dans la sentence finale.

Dans la sentence finale prononcée à la majorité, le tribunal arbitral examine les diverses demandes soumises par chaque partie. Dans ce cadre, il applique le droit civil koweïtien qu'il compare aux <b>Principes d'UNIDROIT </b>(art. 7.1.6 (afin de déterminer si un comportement peut être considéré comme constituant une faute lourde), art. 7.4.7 (réduction des dommages-intérêts en fonction du comportement des parties), art. 7.4.3(3) (évaluation du montant du préjudice par le tribunal). Il accorde au demandeur un paiement au titre de travaux supplémentaires et une indemnité pour dommage aux ouvrages électriques. Il accorde par ailleurs au défendeur une indemnité au titre des frais généraux du siège et du site, des coûts de main d'œuvre supplémentaires et d'une certaine partie de ses frais financiers. Une compensation est opérée entre les montants adjugés à chaque partie, laissant un solde en faveur du défendeur. Les frais de l'arbitrage sont répartis entre le demandeur et le défendeur en fonction de l'admission de leurs demandes respectives (90 % supportés par le demandeur et 10% par le défendeur).

Première sentence intérimaire

<i>Sur le droit applicable au fond :</i>

'Claimant contends that the issues of the entire dispute should be governed by Kuwaiti law, either as the law explicitly chosen by the Parties (Art. 38 of the Agreement, Art. 80 of the Main Contract) or, in the alternative, as the proper law of the contract in application of all the relevant criteria of Kuwaiti and other rules of conflict of laws.

Respondent submits that the Parties made a "negative choice", i.e. each Party intended to avoid the other Party's (Kuwaiti or Italian) national law and the law of a third country was likewise excluded. Respondent explains this submission by referring mainly to Clause 38 of the Agreement where the Parties […] chose to limit the applicability of Kuwaiti law to one Party (the Claimant) and to its performance of the Agreed Works in Kuwait […] Respondent concludes from this interpretation that the Parties have chosen, as the law applicable to the merits, that part of the Kuwaiti and Italian legislation which was common to them at the time the Agreement was entered into.

The Arbitral Tribunal holds that the Parties have neither explicitly nor tacitly agreed on the substantive law.

The choice of Kuwaiti law in the Main Contract (Clause 80) between X and Respondent may not be understood to apply to the contractual relationship between the Parties as well; if the Parties had intended to refer to the applicable law clause in the Main Contract, they would have done so in the same way as they did in the first version of Clause 20 of the Agreement ("[…] in accordance with the settlement of dispute clause in the Main Contract […]").

By Clause 38 of the Agreement, Claimant (not both Parties) undertook to abide "by the regulations and customs in Kuwait" and to "follow the rules of Kuwait and Kuwaiti law" […] [The Parties] chose a wording the scope of which is obviously restricted to Claimant's and its staff's activities when performing the Agreement […] By choosing such a restricted wording in Clause 38, the Parties did obviously not deal with the much wider question as to which law shall be applicable to their Agreement in general (validity, interpretation; each Party's rights and duties; statute of limitation, etc.)

In the absence of any clear indication by the Parties as to the applicable law, the Arbitral Tribunal shall apply the law designated as the proper law by the rule of conflict which it deems appropriate (Art. 13(3) of the ICC Rules).

The Arbitral Tribunal does not deem it necessary in this case to designate a national private international law in view of the fact that all rules of conflict which may be found in legislations which have some connection with this case, indicate to Kuwaiti law as the proper law of the Agreement:

The Agreement has been signed in Kuwait. It is both Parties' understanding that the place where a contract has been concluded is an important or even the decisive criterion in their respective national (Kuwaiti and Italian) laws. It may be added that the place of arbitration is in Italy which is an additional justification to take into consideration the Italian private international law in accordance with opinions expressed formerly in the doctrine […]

The most characteristic elements of performance of the contract […] are obviously the services rendered, the work done and the goods supplied by the Kuwaiti party. The place of residence of the party which has to carry out the characteristic performance of the contract at issue is the decisive criterion in Swiss private international law, which law is connected with this Arbitration in view of the fact that the proceedings are governed, inter alia, by the Swiss Intercantonal Concordat on Arbitration […] This connection exists even if the applicability of Swiss law should be understood to be limited to procedural points only.

When looking directly to the substantive law with the closest connection, the Kuwaiti law must again be the conclusion. With the exception of the nationality and the residence of Respondent (Italy) the Agreement and its performance do not have any link whatsoever with other countries than Kuwait where the entire Agreement was discussed, concluded and performed. The price had also been agreed and paid in Kuwaiti currency.

However, in accordance with a well-established practice in international commercial arbitration, the arbitrators shall take account also of the principles generally applicable in international commerce […] This proviso is particularly justified in view of the fact that the Parties refrained from choosing explicitly Kuwaiti law as the law on the merits […]

The Arbitral Tribunal concludes that Kuwaiti law and, to the extent necessary, principles generally applicable in international commerce are applicable to the merits of the dispute.'

Sentence finale

<i>Clause d'arbitrage :</i>

'Should any dispute occur that requires arbitration proceedings this will be referred to the International Chamber of Commerce in Paris and will be carried out in accordance with their regulations for such disputes. All meetings connected with any arbitration proceedings will be held in Italy and will be under the auspices of Swiss law. The conclusion of the above arbitration proceedings will be final and binding on both parties and under no circumstances will any dispute be taken to a legal court.'

<i>Sur les règles applicables à la procédure :</i>

'Pursuant to Sect. 6.1 of the Terms of Reference, the proceedings were governed, subject to the mandatory provisions of the law at the place of arbitration, i.e. of Italian law, by the ICC Rules of Arbitration 1975 ("ICC Rules") and, as to what is not covered by the ICC Rules, by the Swiss Intercantonal Concordat on Arbitration, dated March 27/August 27, 1969 ("Concordat"), and where both those rules are silent, by such further rules as the Arbitral Tribunal may determine from time to time. Some further rules were adopted within the Terms of Reference.

On January 1, 1989, the Swiss Federal Act on Private International Law (PIL Act), which contains a chapter (Arts. 176-194) on international arbitration, became effective. This new law became immediately applicable, starting January 1, 1989, [to] international arbitration proceedings pending on that date, even in cases where the underlying arbitration agreement referred explicitly to the Swiss Concordat (which remains applicable to domestic arbitration) ([cf.] Art. 176 PIL Act and Swiss Federal Court in BGE 115 II 97, 102, 288 and 390). The Arbitral Tribunal ruled (Sect. 5.2 of the Third Interim Award) that the Parties' reference to Swiss law encompasses the provisions regarding the timely application of amendments to the law and that consequently the Parties' reference to the Swiss Concordat has to be construed, as from January 1, 1989, as a reference to Chapter 12 of the PIL Act.'

<i>Sur la demande reconventionnelle du défendeur en dommages-intérêts en réparation du dommage résultant de la réalisation tardive des ouvrages :</i>

'Claimant pointed out […] that the damages to be awarded to Respondent for Claimant's delay have already been assessed (in the sense of Article 300 Sect. 1 of the Kuwaiti Civil Law no. 67) by the Parties in Clause 34, Part II of the Subcontract which provides that: "In case the Second Party [Claimant] fails to execute and complete the Agreed Works during the agreed period, he undertakes to pay to the First Party [Respondent] a penalty equal to […]" In Claimant's submission, Respondent should not be awarded damages in excess of said amount for the reason that Claimant did not commit "fraud or grave mistake". In this context, Claimant refers to Article 304 of the Civil Law no. 67 which provides that: "Where the damage exceeds the amount of the agreed upon damages, the creditor shall not be entitled to claim more than that amount unless he proves that the debtor had committed fraud or grave mistake." […]

Even if Art. 304 of the Civil Law were applicable, Respondent's claim for damages would not be confined to […] since - contrary to Claimant's submission - Respondent alleged and established that Claimant's delay is the result of Claimant's gross mistakes […]

Respondent made the relevant allegations both explicitly and implicitly:

a) Respondent explicitly alleged that Claimant's delays were due to its "flagrant disregard to his obligation" […], "gross error", "fundamental misunderstanding of their contractual obligations", "extensive delays", "potential disaster", "over 600 delayed electrical activities", "duty was breached grossly and continuously" […]

b) Moreover, Respondent's allegation that Claimant delayed the completion of the Agreed Works by 44 months (as compared to the contractual period of 24 months) and that Claimant's delay is attributable to Claimant's mistakes represents the implied allegation that Claimant's mistakes were gross mistakes.

The Tribunal holds that Respondent's allegations as to Claimant's gross mistakes are supported by the evidence:

a) A contractor's performance amounts to "gross mistake" if his conduct grossly violates a fundamental rule of the art or if he repeatedly or continuously fails to perform in a timely manner important parts of his obligations. The intent to harm the contractual party does not constitute a prerequisite of a culpa grave claim for contractual negligence. A party's conduct is grossly negligent if it shows an elementary failure of attention for the consequences of one's action and if it leads to a performance substantially different from what the other party reasonably expected (cf. Final Award in ICC case no. 6320 of 1992, ICCA Yearbook XX-1995, pp. 62ss, p. 87; UNIDROIT Principles, Article 7.1.6). "Gross mistake" under Kuwaiti law is not different from this generally accepted definition. If it were, Claimant would have submitted relevant authority in response to Respondent's allegations […] Had a narrower definition of "gross mistake" been established under Kuwaiti law, the Tribunal would have had to follow "principles generally applicable in international commerce" (Interim Award I), i.e. the definition recorded hereinabove.

b) It results from the Third Interim Award […] that Claimant's failures were extremely numerous and related to such important activities as the preparation of shop drawings and as-built drawings, the site supervision and co-ordination of the works and the dealing with the earthing problem.

c) The Neutral Expert […] expressed his surprise at the fact that the delay reached the extremely disproportionate period of 44 months […]

d) Subject to differentiations which shall have to be made when examining the various items of Respondent's Counterclaim, in a global approach dealing with Claimant's preliminary defence, the Arbitral Tribunal concludes that Claimant's failures in the timely performance of the Agreement amounts to "grave mistake" in the sense of Article 304 of the Civil Law no. 67.

Accordingly, Claimant's defence relating to the penalty clause must be rejected."

<i>Sur l'imputation de la responsabilité pour retard :</i>

'In its Third Interim Award, the Arbitral Tribunal had decided that Claimant is responsible for the delay of the Project and shall be liable, in principle, for the damages suffered by Respondent. The Arbitral Tribunal reserved the determination of the extent of Claimant's liability and the amount of damages resulting therefrom to the present Final Award.

In this context […] the Expert was asked, inter alia, to determine the extent of the delay for which Claimant is responsible, taking into account all relevant circumstances, in particular Claimant's failures referred to in the Third Interim Award as well as other subcontractors' delays and Respondent's own conduct. The Expert's Terms of Reference specified on the one hand that the findings of the Arbitral Tribunal as expressed in its Third Interim Award were binding on the Expert and on the other hand that he shall draw his own conclusions within the limits of such findings.

The Expert proceeded to determine the allocation of the responsibility for delay on the basis of two different global approaches […] His choice to follow global approaches is motivated by the lack of adequate evidence supporting a detailed allocation of delay to one or the other Party […]

In a first global approach, the Expert listed the main causes of the delay (those suggested by the Parties, and those found by the Expert) and allocated certain percentages of weight to them in a kind of "critical path" […]

In a second global approach, the Expert based his assessment of the development of the works mainly on the monthly payment certificates. He found that twelve months of the total 44 months was Respondent's own responsibility whereas Claimant bears the responsibility for a total of 32 months (72%) […]

The wording of Article 300 Sect. 1 of the Kuwaiti Civil Law no. 67 ("Compensation shall be estimated by the court[…]") indicates that apart from the debtor's failure other factors which may have contributed to the extent of the damages will have to be taken into consideration when the quantity of damage claims is to be assessed. This is particularly true with respect to the creditor's conduct as a contributing factor. This generally accepted principle may be summarized as follows: "Where the harm is due in part to an act or omission of the aggrieved party or to another event as to which that party bears the risk, the amount of damages shall be reduced to the extent that these factors have contributed to the harm, having regard to the conduct of each of the parties." (UNIDROIT Principles of International Commercial Contracts, Rome 1994, Article 7.4.7) Applying these principles to the instant case and considering the conduct of each of the Parties as described in the Tribunal's Interim Award III and in the Expert's Report, the Tribunal concludes that the amount of damages to be awarded to Respondent shall normally be reduced by one quarter.'

<i>Sur les coûts de main d'œuvre supplémentaires du défendeur :</i>

'Respondent submits that it suffered additional labour costs […] as a result of the disruptive effects of Claimant's delay and of the additional years of duration […]

Claimant contends that Respondent did not sustain any damage and that its Counterclaim is in any event inflated […]

The Expert rejected Respondent's calculation for various reasons, among others for the reason that Claimant should not be burdened with the consequences of an over- or underestimate of the labour costs laid down in the Main Contract […] The Expert found that the factual allegations submitted by Respondent did not allow him to satisfactorily assess the loss suffered by Respondent in its manpower productivity […]

After the Parties and the Tribunal had discussed this "non-liquet" result with the Expert […] the Expert was asked to deliver an amendment to his report "in which he shall evaluate Respondent's claim for manpower disruption […] in the Amendment, the Expert is not bound to necessarily state a precisely reasoned calculation of his assessment […], but may make an estimate based on his professional experience relating to normal consequences of manpower disruption causes" […]

The Tribunal holds that a contractor's manpower disruption caused by a subcontractor's delay falls into the category of damages which may normally not be established, in a claim for damages, in an arithmetically satisfactory manner. Manpower disruption belongs to the category of damages not ascertainable by calculation, which must be determined by the Tribunal, taking into account the ordinary chain of events. This approach is in accordance with Art. 300 Sect. 1 of the Kuwaiti Civil Law no. 67 of 1980, which provides that compensation shall be "estimated" by the Court. It is also in accordance with generally accepted principles in international commerce (cf. e.g. UNIDROIT Principles of International Commercial Contracts, Rome 1994, Article 7.4.3 Subs. 3: "Where the amount of damages cannot be established with a sufficient degree of certainty, the assessment is at the discretion of the court.").

The Tribunal holds that the importance of the delay (44 months) as compared with the contractual completion time (Interim Award III) sufficiently establishes that Respondent suffered additional labour costs as a result of such delay. As to the quantification of the additional labour costs, the Tribunal is particularly convinced by the Expert's method D […]

Accordingly, the Tribunal decides to award Respondent damages in the amount of […] for its manpower disruption costs.'

<i>Sur les charges financières du défendeur et les intérêts :</i>

'[…] Respondent claims interest on payments made to its Kuwaiti site, interest on its further claims and, originally, compensation for its rate of exchange losses […]

It is undisputed that Respondent had borrowed funds during the entire period for which it is claiming interest, that its interest rate averaged 13% per annum and that it had claimed damages and interest from Claimant as early as […]

Claimant addressed the present issue only in its Post Hearing Brief […] and only with respect to the restrictions applicable, under Kuwaiti law, on interest rates. It indicated that the interest rate may not exceed 7% according to Art. 110 and 111 of the Kuwaiti Commercial Code (law no. 68/1980).

Respondent replied […] as follows: "Whether this may apply to interest due on in [sic] Kuwait, this cannot apply to interests paid in […] under the local official banking rate (which averages 13%). In any event Claimant has provided no evidence that such a rate would exceed any rates announced by the Kuwaiti Central Bank."

The Tribunal holds that Kuwaiti law restricts the rate of interest only with respect to contractual rates and to the interest rate applicable when the payment of money the amount of which is known to the debtor is delayed (cf. Art. 110 and 111 of the Kuwaiti Commercial Code no. 68), but not however to interest aimed at compensating the aggrieved party for the fact that the damages awarded shall only be paid some time after the damage occurred and that the creditor may have incurred financial charges in order to survive the period during which he was awaiting compensation of his damages […] Kuwaiti law provides that the compensation shall include "the damage suffered by the creditor […] provided that this is a natural result of non-fulfilment of the obligation or delay thereof" (Art. 300 Sect. 2 of the Civil Law no. 67/1980). The Tribunal holds that the said financial charges may qualify, according to the circumstances of the case, as a "natural result" of a debtor's delay in paying damages owed to his contractual partner. Particularly, if the basis of the debtor's liability is "grave mistake" […] the normally applicable limits on interest rates are no longer applicable (Art. 300 Sect. 3 and Art. 304 Civil Law per analogiam).

This understanding of Kuwaiti law is in accordance with internationally accepted principles which otherwise would become applicable pursuant to the Tribunal's First Interim Award. Reference may again be made to the UNIDROIT Principles of 1994, which provide in Art. 7.4.9(3) that the aggrieved party is entitled to additional damages if the non-payment caused it a greater harm than covered by the normally applicable interest rate.'