Contrat de distribution exclusive entre une société néerlandaise, défendeur, et un distributeur américain, demandeur / Droit applicable au fond / Détermination des règles de conflit applicables en l'absence du choix par les parties d'un droit applicable / Art. 13(3) du Règlement CCI / Paris, siège de l'arbitrage fixé par les parties / Application cumulative des règles de conflit des pays des parties et du lieu de l'arbitrage / La règle de désignation du droit du pays avec lequel le contrat a les liens les plus étroits est acquise dans les trois systèmes concernés (français, américain et néerlandais) / Absence de présomption d'application du droit du pays du vendeur, s'agissant d'un contrat de distribution / Application des lois de l'Etat du New Jersey / En l'absence de stipulation contractuelle, il est normal d'appliquer pour les contrats internationaux le droit du pays où la partie qui fournit la prestation caractéristique a son siège / Solution préconisée à l'article 4(2) de la Convention de Rome de juin 1980

'Having determined that the parties agreed neither to choose nor to exclude any particular applicable law, the Tribunal now turns to consider the principles to be applied in the absence of a choice of law.

Under Article 13(3) of the ICC Rules, the Tribunal has the authority to "apply the law designated as the proper law by the rule of conflict which [it] deems appropriate".

The Tribunal has chosen to apply the cumulative rules of conflict, thus referring to the rules of conflict of the respective legal systems of the two parties as well as to that of the place of arbitration.

As the parties themselves chose Paris as the place of arbitration, the Tribunal considers that it was within their reasonable expectation that French rules of conflict be given some weight. This conclusion is reinforced if, in addition, the French rules of conflict are consistent with those of the legal systems of the home countries of the parties.

The Tribunal finds that, in the absence of a different choice by the parties, and unless the matter of governing law is resolved by an international convention, the acknowledged principles of conflict of laws in all three aforementioned legal systems apply the law of the country with which the contract has its most significant connection, whether they use the expressions "critères de rattachement" (France), "most significant relationship" (U.S.) or "most closely connected" (the Netherlands), to the Agreement.

Before the Tribunal can apply the above criteria to the case at hand or determine whether an international convention is relevant to the matter, it is necessary to decide how to characterize the Agreement. . . .

The Tribunal having decided that the Agreement is an exclusive distributor agreement, it can now turn to the application of the conflicts of law principles decided upon above.

The Claimant contends that the place of performance of the Agreement and the place with which the Agreement has the most significant relationship is the U.S. The Defendant contends that the Agreement is localized in the Netherlands.

The Tribunal accepts the Claimant's argument in this respect. It considers that the performance that characterized the Agreement is the distribution of products throughout the territory of the U.S., along with the various activities associated with the distribution, such as promotion of the product. The Tribunal does not accept the contentions of the Defendant because (1) it finds that the Agreement is not a sales agreement and is therefore not subject to

any presumption that the applicable law in the absence of another agreement should be that of the country of the seller and (2) it does not accept that "the production, bottling, and delivery of the product (FOB)" constituted the characteristic performance under the Agreement.

The Tribunal is well aware of the fact that the U.S. is comprised of a number of jurisdictions, and that, as the Defendant has pointed out, it might be difficult to demonstrate that the Agreement has dominant connections with any single State of the U.S. The Tribunal is unwilling to hold that "American law" be declared applicable in light of the occasional important variations between the law of the several States. It therefore opts for the laws of the State of New Jersey, which is the corporate seat and principal place of business of the Claimant.

The Tribunal considers that any party signing an international contract which does not contain a stipulation of applicable law knows or should know of the potential applicability of the law of the corporate seat and principal place of business of the party whose performance characterizes the contract. That is exactly the rule enshrined in Article 4(2) of the 1980 Rome Convention on the Law Applicable to Contractual Obligations. This rule was within the reasonable contemplation of the Defendant, which pointed out that "Dutch courts have, in practice, applied the provisions of the . . . Convention for many years, in anticipation of its actual entry into effect on 1 September 1991".

The Tribunal therefore considers that the substantive law of the State of New Jersey governs the Agreement and the rights and obligations of the parties hereunder.'