Contrats pour la fourniture et l'installation (y compris l'assistance technique) d'une usine en Libye / Demandeur : acheteur libyen / Défendeur : vendeur suisse / Clause contractuelle de droit applicable se référant à « la Convention de La Haye » / Application par le tribunal arbitral de la Convention de La Haye de juin 1955 sur la loi applicable aux ventes à caractère international d'objets mobiliers corporels / Désignation de la loi libyenne, loi du lieu où le vendeur a reçu la commande et où le contrat a été conclu, en application de l'art. 3(2) de la Convention / La Convention de 1955 ne s'applique pas à une question connexe au contrat principal mais non assimilable à un contrat de vente.

'Article . . . provides that "the contract and settlement of the dispute shall be governed and interpreted in accordance with the International Law as per the Den Haag Convention" and that "the Arbitration Committee shall take into consideration the provisions of the contract and international trade practices".

The Arbitral Tribunal cannot ignore the clear reference to the Hague Convention as applicable law and cannot consider it as nonsense. But since there are several Hague Conventions, the point is to determine which was the Convention contemplated by the parties. Among said Conventions, there are two which may be meant by the reference, those which deal with sale contracts, namely: the Convention of June 15, 1955 and the Convention of December 22, 1986. But the latter is to be excluded since the Contract has been concluded in 1984.

That being, the Arbitral Tribunal holds that the law applicable to the Contract is the Hague Convention of June 15, 1955 on the law applicable to international sales of goods, the Contract provisions and international trade practice being taken into consideration.

Under article 3(2) of the said Convention, the law applicable to the Contract and its amendment is doubtless Libyan law, because the order for the plant has been received by Respondent in Libya where the Contract has been signed by the two parties. Actually this is a not contested by Respondent.

While not contesting that the Contract is governed by Libyan law as a result of implementation of the Hague Convention, Respondent maintains that this applies only to disputes arising out of the Contract itself, but that it does not necessarily apply to individual transactions between the parties which are only related to the Contract. Respondent' s notion is that such individual transactions should be governed by the law designated by the internal logic of the Hague Convention 1955, based on the criterion of order-acceptance, irrespective of the law applied to the Contract itself.

However, the implementation of said logic by Respondent concurs with final application of Libyan law, except for two Respondent counterclaims (counterclaim no. 3 for loss of profit concerning sale of . . ., and counterclaim no. 4 for pocket money for four students). Respondent holds these two counterclaims to be governed by Swiss law under the criterion of the Hague Convention.

The dispute over applicable law is finally limited to the two above-mentioned counterclaims 3 and 4. It ensues therefrom that there is no point in entering into the controversy in general, but it appears more adequate to limit it to the two said counterclaims, taking into account the specific content and circumstances of the latter.

As far as counterclaim no. 3 is concerned, it looks premature to settle the dispute over the applicable law in this respect by a partial award . . .

As far as counterclaim no. 4, concerning pocket money for four students in Germany, is concerned, assuming it is not governed by Libyan law as being the law of the Contract itself but by the Hague Convention as directly applicable to an individual transaction related to the Contract, it is worth pointing out that the Hague Convention applies to the extent it might be applied in accordance with its provisions. To put it differently, the Hague Convention deals with sale contracts, and it is applicable to the Contract entered into by the parties in the present arbitration because it involves a sale. But the Hague Convention cannot be directly applied to a claim arising out of pocket money paid to students, because such a claim is neither a sale contract nor assimilable to a sale contract. Application of the criterion of the Hague Convention of 1955 would be, therefore, an unjustified extrapolation. That being, there is no other law applicable to the said claim than the law applicable to the Contract to which the claim is related, namely the Libyan law.'