Interest on outstanding payments / French law / Starting point / Formal demand not necessary according to contractual provisions; Articles 1139 and 1153 of the Civil Code /Application to certain claims of the five-year bar of the statute of limitations (Article 2277 of the Civil Code), yes / Inadmissibility of those claims on interest which are not specified in the Terms of Reference, yes / Capitalisation of interest, yes

'The Claimant requests that the Defendant be sentenced to pay interest at the rate of 11.50% per annum (a rate the Defendant does not dispute) from . . ., until full payment; as well as intercalary interest on the amounts of which payment was allegedly delayed, i.e. FF . . . Furthermore the Claimant demands the capitalization of interest.

It was clearly agreed between the parties that "the balance of payment is due . . . as soon as the mission is fulfilled" and that "any delayed payment automatically entitles to interest calculated on the basis of the discount rate of the Bank of France, plus two points".

It is therefore established that the debtor was formally summoned to pay as a result of the agreement (cf. Encyclopédie Dalloz, Rép. Dr. civ., V° Mise en demeure, no. 5 and following; Mazeaud and Chabas, 2 Leçons de Droit civil, Book I, p. 711).

Article 1153 Civ. Code, quoted by the Defendant, does not cover this hypothesis, since under article 1139 Civ. Code, the Claimant is not obliged to notify a formal demand (cf.

Dominique Allix, "Réflexions sur la mise en demeure", J.C.P. 1977, Doc. 2844 and in particular on the consideration by the courts of implicit exemptions, n° 19).

In fact, the file shows that during the mission, the Claimant expressed his "regret and bitterness" regarding the nonregularisation of overdue fees . . .; in a telex of . . . referring to the Defendant's default, the Claimant recalled the issue of interest "resulting from noncompliance with the payment delays, and this until position no. . . . and any further position".

In is true that the Defendant adopted a very circumspect attitude towards the Claimant; an attitude that is inconsistent with the usages and principles that bind economic operators in international trade (C.F.G. Morin, "Le devoir de coopération dans les contrats internationaux", Droit et pratique du commerce international, 1980, pp. 9 to 28, G. Horsmans, "L'exécution du contrat et le comportement des parties", Rev. de dr. int. et de dr. comp., Bruylant, Bruxelles, 1980, pp. 301 and foll.). Nevertheless; with regards to interest that reached maturity at the end of the mission, the Claimant unduly waited until the matter was submitted to the International Court of Arbitration before requesting it.

In accordance with the five-year bar of the statute of limitations under Article 2277 Civ. Code, the Claimant's demand for payment of interest, due more than five years before the abovementioned date must therefore be rejected . . .; as to the claim for intercalary interest, it is not mentioned in the Terms of Reference of . . . and is therefore inadmissible.

Since the parties as business associates established a current account, and in accordance with commercial usages (that must be taken into consideration by the Arbitral Tribunal) we grant the Claimant's request on capitalization of interest with the above-mentioned restrictions.'