Demande reconventionnelle / Recevabilité de la réplique du demandeur à une demande reconventionnelle déposée au-delà du délai de 30 jours prévu à l'article 5(2) et après la signature de l'acte de mission /Articles 5(2) et 10 du Règlement CCI /Pouvoir du tribunal arbitral d'autoriser le dépôt de conclusions quand il le juge approprié, oui

'On the admissibility of Claimants' reply

As a fourth issue, the Tribunal is requested to determine whether a formal Reply to the counterclaims is admissible after expiration of the 30 days period specified in Article 5(2) of the ICC Rules.

That article provides in its paragraph 2:

"It shall be open to the Claimant to file a Reply with the Secretariat within 30 days from the date when the counter-claim was communicated to him."

In the present case, it is not denied that the counterclaims were delivered to Claimant's counsel on February 26, 1988 and that the Reply of Claimants was not delivered before August 5, 1988 more than 5 months later, even after the signature of the Terms of Reference which took place on July 4, 1988.

Defendant, as Counterclaimant, complains-as it did through its counsel, by several letters addressed in May 1988, to the Secretariat of the ICC Court-that Claimants did not comply with the ICC Rules.

According to a letter sent by that Secretariat, on May 20, 1988, to Defendant's counsel, it had been understood that parties had entered into settlement discussion and this arbitration was held in suspension for several months. Claimants add that suspension was due, among other reasons, to the failure of the Counterclaimant to pay its share of fees.

The Tribunal considers-whatever be the reasons of the delay-that, irrespective of Article 5(2) of the ICC Rules, it has the power to permit further pleadings, whenever it deems it appropriate.

It results only from Article 5(2) combined with Article 10 of the said Rules, that after expiry of the 30 days specified in the first one, the Secretariat of the ICC is entitled to transmit the file to the Arbitrators, with or without the Reply to counterclaim. If the Arbitrators are able to draw up the Terms of Reference, in absence of the Reply, and if they permit subsequently the Claimant to file the same, without any damage for the other party-as it is the case-, there is no sanction to Article 5(2). The objection of Defendant is dismissed.'