Réserve relative à des demandes futures/ Recevabilité d'une nouvelle demande/ Art. 16 du Règlement/ Recevabilité de demandes futures excédant la compétence du tribunal arbitral/ Aucune mention de demandes reconventionnelles dans l'acte de mission/ Demande reconventionnelle excédant les limites fixées par l'acte de mission.

'Reservation of further claims

In its pleadings, the Claimant has reserved the right to raise further claims arising out of this Contract in other proceedings. Defendant thus requests this tribunal to hold that this arbitration finally settles all claims out of the contract and that any reservation of further proceedings is without effect.

This tribunal believes that it is outside the scope of its jurisdiction to rule on this request as it would imply making a determination whether unknown future claims to be submitted to another tribunal are admissible or not.

Counterclaim

a. [...] Defendant has raised a counterclaim for additional freight costs in connection with the contract. It submits that such counterclaim is within the limits of the terms of reference and, therefore, meets the requirements of Article 16 ICC Rules. Claimant is of the contrary opinion and has refused to sign a rider to the terms of reference.

b. Defendant raised its counterclaim after its initial response and after the execution and approval of the terms of reference. Although the definition of the issues in the terms of reference is broad, the terms of reference do not contain any reference to a counterclaim nor do they refer to the facts giving rise to the counterclaim.

c. It is generally accepted in ICC practice that, in spite of the wording of Article 5 ICC Rules, a Defendant may bring a counterclaim until the Terms of Reference are drafted. [...] Thereafter, a counterclaim is acceptable only if (i) the adverse party agrees to it or (ii) it is within the limits of the terms of reference (Art. 16 ICC Rules). In the present case, there is no agreement and, since the terms of reference do not even mention the facts giving rise to the counterclaim, the tribunal finds that the counterclaim cannot be deemed to be within the limits of the terms of reference. Therefore, the tribunal holds that it is not empowered to rule on the counterclaim and that the counterclaim must be dismissed without prejudice.'