Recevabilité d'une demande reconventionnelle/ Art. 16 du Règlement/ Droit d'introduire une demande reconventionnelle réservé dans l'acte de mission, sous conditions/ Recevabilité dépendant des conditions prévues/ Conditions non remplies/ Demande reconventionnelle irrecevable.

'Opinion regarding liability for the counterclaims

At the beginning of the section of this Award dealing with the counterclaims it should be noted that no such counterclaims were originally raised by the Defendants. The terms of reference signed by both parties and the tribunal contained the following section in this respect:

"Defendant I (Licensor) reserves its right to file a counterclaim in respect of the losses and damages incurred.

In the unlikely event that the tribunal should conclude that the Licence did not expire in accordance with its terms; that the Agreement was not validly concluded; or that the waivers in Articles 13 and 16 of the Agreement were invalid and ineffective, then Defendant I wishes to have the option to file a counterclaim in respect of damages suffered and losses incurred as a result of Claimant's breaches of the Licence and the Agreement."

This wording indicates that the Defendants only reserved the option to file counterclaims in case one of three conditions was fulfilled. The preceding section of this award, however, shows that none of these three conditions is fulfilled because the tribunal neither concluded that the licence did not expire in accordance with its terms, nor that the Agreement was not validly concluded, nor that the waivers in Article 13 and 16 of the Agreement were invalid or ineffective.

In these circumstances it must be examined whether the counterclaims raised by the Defendants at a time of the procedure when they did not yet know what the conclusions of the tribunal were with regard to these three conditions are admissible in this procedure in view of the cited clause of the terms of reference. That clause, suggested by the Defendants themselves and signed by them with the rest of the terms of reference, expressly limited the option to raise counterclaims at a later stage. Its limitations must be taken into account in deciding that admissibility of the counterclaims. This is confirmed by Article 16 of the ICC Arbitration Rules according to which parties may make new counterclaims only "on condition that these remain within the limits fixed by the terms of reference..."

This cannot mean that the Defendants could not submit the counterclaims as they in fact did at a later stage of the procedure after the terms of reference because they did not and could not know whether one of the possible three conditions mentioned in that clause for the admissibility of counterclaims would be fulfilled in the conclusions of the tribunal. However, in view of these express conditions for counterclaims, this submission of counterclaims by the Defendants must be considered as conditional depending on how the tribunal finally concluded with regard to the three conditions mentioned in [...] the terms of reference. Therefore, only if one of these three conditions at least is fulfilled in the conclusions of the tribunal, can the counterclaims be considered as admissible in this procedure.

On the basis of this interpretation it is only now, at the time of the award on liability, that it can be decided whether one of these conditions is fulfilled and whether therefore the counterclaims are admissible. As indicated before, the preceding sections of this award show that none of the three conditions is fulfilled in the conclusions of the tribunal.

This being the case, it must now be decided that the counterclaims are not admissible. "