Recevabilité d'une demande reconventionnelle/ Exception de compensation/ Art. 5, 11, 16 et 26 du Règlement/ Droit interne de procédure/ Lien de connexité suffisant entre 7 contrats/ Contrats formant un ensemble contractuel à la base d'une coopération économique et commerciale intégrée et continue.

'The ICC Rules of Arbitration which, by effect of Article 8 of the Rules, apply to these arbitration proceedings contain two provisions on the admissibility of counterclaims. Article 5 of the Rules presupposes their general admissibility by stating a 30-day deadline for their filing with the ICC. Article 16 of the Rules introduces a further temporal criterion: the signing of the Terms of Reference after which new claims or counterclaims may be made only if they remain within the limits of the Terms or are agreed upon by the parties.

Apart from these provisions, the Rules are silent, their character being entirely procedural as they do not establish any substantive requirements under which a counterclaim shall be admitted or rejected. This cannot, however, mean that, within the said formal requirements, any counterclaim is to be admitted and adjudicated by the Arbitral Tribunal. In this respect, it is generally recognized that a counterclaim which is not covered by an Arbitration Agreement of the parties must not be accepted by the Arbitral Tribunal which would otherwise exceed its jurisdiction.

In cases where the Rules are silent, Article 11 stipulates reference to a municipal procedural law not to be necessary. With regard to the enforceability of the award (see Article 26 ICC Rules) it is, however, generally advised to refer to the local procedural law of the place at arbitration since, under Article V 1 (d) New York Convention of 1958, both recognition and enforcement of an award may be refused on the grounds that the "Arbitral procedure was not in accordance with the law of the country where the arbitration took place" [...] It is the Arbitral Tribunal's opinion that reference to French Procedural Law as the "lex loci arbitri" should, therefore, be made.

[...]

The concept of sufficient relationship under Article 70 (1) CPC is a broad and very flexible concept, appreciated sovereigntly by the judges.

[...]

The requirement of a certain relation between claim and counterclaim is also a predominant principle in international doctrine. It is often described as the conflict between the parties' interest of resolving all issues in dispute between them on the one hand and, on the other hand, the interest to prevent the abuse of process leading to unnecessary delay and expenses [...]

In this case, the presence of such a relation is contested by Claimant whereas Defendant insists that claims and counterclaims are inseparable from each other.

Yet, before examining the relationship in issue, the Arbitral Tribunal has drawn its attention to the fact that Defendant not only raised counterclaims but also used its counterclaims as defence to Claimant's claims by means of set-off.

The Arbitral Tribunal noted that Article 70 (2) French CPC provides in this respect as follows:

"Toutefois, la demande en compensation est recevable même en l'absence d'un tel lien, sauf au juge à la disjoindre si elle risque de retarder à l'excès le jugement sur le tout."

With regard to this provision, Defendant's counterclaims may have to be considered admissible in any event as a defensive mean of set-off, irrespective of their admissibility as offensive means.

Apart from these considerations, all seven orders appear, in fact, to be commercially linked with each other to a substantial degree. They all contain the same identical Arbitration Clause [...] Furthermore, all seven orders have the same object [...] All contracts have been concluded within two meetings [...] This is confirmed by the parties' subsequent conduct of not distinguishing in their further contractual behaviour between orders invoked by Claimant and those invoked by Defendant. The orders also highly resemble one another going by their outward appearance.

Furthermore the Claimant itself linked the various orders by stating and invoking events that were raised on the occasion of one order to justify its position concerning the following orders.

According to the information in the possession of the Arbitral Tribunal, it considers all seven contracts, be they invoked by Claimant or Defendant, to be part of one single economic and commercial long-term cooperation.

In its opinion, it is, therefore, clear that there exists a close relation between the orders and it is, besides, in both parties' interest to have Defendant's counterclaims considered as admissible and, thereby, have the entire dispute settled together.'