Contrat de vente de gasoil / Le demandeur (représentant grec d'une société d'Antigua ayant un bureau en Suisse), vendeur, allègue que l'acheteur grec a résilié à ses torts le contrat / Clause stipulant « arbitration, if any in London according to the ICC Rules » / Droit applicable au fond / Détermination de la règle de conflit / Règle du lien le plus étroit selon les droits anglais et grec / La Convention de Rome de 1980 (art. 3 et 4) incarne le droit moderne des conflits en matière d'obligations contractuelles : selon son art. 4(5), les présomptions de la Convention tombent lorsque le contrat a des liens plus étroits avec un autre pays (la Grèce)

'There being no clear choice by the Parties, the Tribunal should, under the ICC Rules, determine the substantive law applicable to the present dispute, as designated by the rule of conflict it deems appropriate.

The Contract was entered into in Greece, between a Greek corporation and the Greek agent of an Antiguan corporation doing business through its office in Switzerland, the situs of the arbitration being London.

There being no indication of the Parties' choice of the applicable law, the Tribunal shall successively study the rule of conflict under English law (applicable according to Claimant) and under Greek law (applicable according to Defendant). Thereafter, the Tribunal shall examine whether, under modern conflict of law rules, the system of the Rome Convention should be considered.

The English rule

As discussed above, Claimant's basic argument is:

"Under English law, the applicable law is the proper law of the contract, i.e. the system of law by which the parties intended the contract to be governed, or where their intention is neither expressed nor can be inferred from the circumstances, the system of law with which the transaction has its closest and most real connection. The concept of contractual intention is a broad one, encompassing not only any express intent but also any intention which is to be inferred from matters such as the terms of the contract, the nature of the transaction and the circumstances of the case (Dicey & Morris, Conflict of Laws Rules 180 pp. 1161-1190)." Failing a clear contractual intention, English law, as stated by Claimant refers to "the system of law with which the transaction has its closest and most real connection".

The Tribunal therefore notes that, under the English conflict of law rule, it is the system of law "with which the transaction has its closest and most real connection" that should be the substantive law of the dispute.

The Greek rule

As to Defendant, as discussed above, it "derives from all contractual elements that Greek law is the proper law of the contract. The contract was concluded in Greece by an agent of the Claimants who is a Greek law company, and the contract's performance is also situated in Greece."

The Tribunal notes that such an approach is in effect similar to that indicated by the English conflict of law rule, i.e. the closest and most real connection.

The Rome Convention

The Tribunal notes that modern law applicable to contractual obligations has been embodied in the Rome Convention of 1980. Such Convention is however not applicable to the case at hand as it came into force as between Greece and the United Kingdom on April 1, 1991, i.e. after the Contract.

It nevertheless represents the general trend of modern international law.

Article 3 states the principle under which "A contract shall be governed by the law chosen by the parties" and Article 4.1. enunciates that "To the extent that the law applicable to the contract has not been chosen in accordance with Article 3, the contract shall be governed by the law of the country with which it is most closely connected . . .".

There is, in this case, as seen above, no "law chosen by the parties". The Tribunal should thus determine "the law of the country with which [the contract] is most closely connected".

In this regard, Article 4.2. establishes a presumption according to which: ". . . it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance . . . has, at the time of conclusion of the contract, his habitual residence . . . if the contract is entered into in the course of that party's trade or profession, that country shall be the country in which the principal place of business is situated or, where under the terms of the contract the performance is to be effected through a place of business other than the principal place of business, the country in which that other place of business is situated".

This, however, is only a presumption. Such is the reason why § 5 of the same Article 4 states that ". . . the presumptions in paragraphs 2, 3 and 4 shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country".

The presumption of the Rome Convention would lead to the application of Swiss law, even though the Parties have not argued that such law should be applicable. Switzerland has incorporated, under Articles 116 and 117 of its recent Federal Code on Private International Law (Loi Fedérale Suisse sur le Droit International Privé), the relevant provisions of the Rome Convention. Therefore, in Switzerland, the application of the law of the seller's place of business would only be "presumed".

In fact, the Tribunal finds no connection with Switzerland that would justify the application of the Rome Convention's presumption and the Parties have not argued that Swiss law should be applied.

Although Switzerland appears to be Claimant's main place of business, at least for the purpose of the present case:

- Claimant is a corporation registered in Antigua;

- Claimant was represented in Greece by a Greek agent;

- The negotiation of the Contract did not take place in Switzerland;

- The contract was not entered into Switzerland;

- The product did not originate from Switzerland;

- The service was not performed in Switzerland

- The parties never invoked the applicability of Swiss law.

For these reasons, the Tribunal shall not apply the presumption of article 4.2 of the Rome Convention.

Whether it chooses the English conflict of law rule or the Greek conflict of law rule, or the Rome convention, the Tribunal must now determine the law which the contract has the closest connection.

The facts of the case show that the contract is not closely connected with England. The tribunal further notes that claimant has not substantiated its contention according to which English law would be applicable as being the most appropriate in relation to an international oil sale contract.

The facts of the case show that the country with which the Contract is most closely connected is Greece:

- The negotiation of the contract took place in Greece;

- It was negotiated between the Greek agent of the seller and a Greek buyer;

- Delivery was to take place in Greece;

- Both parties agree that Defendant's mission was to purchase oil for the needs of Greece.

In the Tribunal's opinion, it is clear from the above that the Contract is more closely connected with Greece than with any other country. Greek law is therefore the substantive law of the Contract.'