• Période d'application

• Taux d'intérêt

La demanderesse, société allemande, demande le règlement des montants impayés qui lui sont dus pour des travaux de construction réalisés dans un Etat d'Asie occidentale. Le tribunal arbitral, s'appuyant sur le contrat signé entre les parties, déclare que le droit suisse est applicable.

'Interest rates

The Plaintiff has claimed, with its request for arbitration, various rates of interests far above the normal rate of the moratory interests in Swiss law.

In the hearing held on June 9, 1993, the question of the rate of interests was discussed and Mr [Z], on behalf of [Claimant], said that the company would produce the loan agreement concluded with the [bank] which had been rendered necessary for the financing of the works performed in execution of the Agreement dated February 9, 1977.

This loan agreement was never produced by the Plaintiff.

The document produced was a letter from the [bank], dated June 29, 1993, which only states that . . . "the following interest rates were actually charged to [Claimant]". The letter ends by the following sentence: "We, [bank], confirm furthermore that we did the financial handling for the [project] as well as the related payment matters."

The rates mentioned in this letter are not the same at [sic] those which are mentioned in the request for arbitration. Moreover they start on April 1981 whereas, in the request for arbitration, they start in January 1978! It must be stressed that the interest rates mentioned in the request for arbitration are supported by a letter dated August 30, 1989 issued by the same [bank]!

In view of these contradictions and of the fact that the loan agreement concluded with the bank was not produced, nor any bank statements concerning the amount of the debts of the Plaintiff towards the bank, during the period under scrutiny, the Arbitral Tribunal considers that it is impossible to take into account the interests claimed by the Plaintiff, which has not brought the necessary proof although the burden of proof laid on it (Article 8 of the Swiss Code on Civil Rights).

The Plaintiff had not only to prove (Article 106 of the Swiss Federal Code of Obligations) that the interests charged by the bank were higher than the Swiss normal moratory interests, but also that they were charged during the whole period under scrutiny on the total amount of . . . and that the said amount constantly represented a debt of the Plaintiff towards the bank deriving from the loan granted for the execution of the Agreement of February 1979.

Consequently, the Arbitral Tribunal will retain only the moratory interests rate applicable according to Swiss law (Article 104 of the Swiss Federal Code of Obligations). Article 104 paragraph 3 of the Swiss Federal Code of Obligations however disposes that the moratory interests can be increased up to the applicable discount rates in vigour at the place of payment.

The Arbitral Tribunal has ascertained that, during the period concerned, the discount rates in Germany had oscillated between 5 and 8.75 percent. Therefore, the Arbitral Tribunal considers that an average rate of 6 percent is reasonable in the present case.

<i>Dies a quo for the interest rates</i>

From the letter sent by the [contracting authority] to [bank] on April 29, 1989, a copy of which was addressed to [Claimant], one can take it for granted that there was an agreement between the Parties as to the payment of the amount of . . . as full settlement.

The content of the said letter is perfectly unequivocal and the reference to such a settlement . . . has never been contested by the Plaintiff after it has received the copy thereof.

Consequently, one has to assume that there was a previous settlement between the Parties as to the final figure. If this had not been the case, [Claimant] had the obligation, according to the rules of bona fides, to deny the existence of a settlement, which it has never done. On the contrary, [Claimant], fifteen months later, has presented a claim which is exactly of same amount . . .

Even if there was no prior settlement to the letter of April 29, 1989, this letter should be considered as an offer to settle for an amount of . . . which has been tacitly accepted by [Claimant].

The amount of . . . which had to be transferred to [Claimant] did not include the interests as to which [Claimant] did not present any claim until it filed its request for arbitration, in June 1990.

Therefore, one has to assume that [Claimant] had renounced to the past interests. Such renunciation has to be assimilated to a remittal of debt which, according to Swiss law, can also be granted tacitly (see Von Thur, "Partie générale du Code fédéral des Obligations", Vol. II, Ed. Lausanne 1934, p. 568).

In consequence thereof, the moratory interests can only run as of the day the Plaintiff should have received the amount of . . . that is shortly after April 29, 1989.

The Arbitral Tribunal decides that the moratory interests on the total amount of . . . run as of May 1, 1989.'