• Fondement juridique de l'octroi des intérêts

• Taux d'intérêt

La demanderesse réclame le versement de montants impayés afférents aux travaux de construction qu'elle a effectués pour la défenderesse jusqu'au 31 janvier 1992 au titre d'un contrat de sous-traitance. La défenderesse oppose une demande reconventionnelle en compensation par des créances qu'elle revendique en contrepartie envers la demanderesse. Les deux parties demandent des intérêts.

'Claimant's Claim 2

Current LIBOR rate plus 1% calculated on delayed payments and unpaid invoices . . .

(a) [Claimant]'s position

5.10

[Claimant] claims according to clause 15 (2) [of the subcontracting agreement] for due but not effected payments default interest. This clause reads:

If however, the payments due to the Sub-contractor are not effected within the said 30 days, then the Sub-contractor shall be entitled to receive interest at the current LIBOR rate for six months plus 1% (ONE PER CENT) calculated on the unpaid amount of valuations from their 31st day of receipt.

5.11

[Claimant] has submitted a list of delayed and outstanding payments, a confirmation of LIBOR rate by [bank] (November 4, 1992) and a corrected calculation of the default interest at the current LIBOR rate until June 30, 1992 . . .

5.12

As witness [X] explained, this calculation was made in the following way: the LIBOR rate plus 1% on the date the single invoice was due was applied for the whole time of delay of payment of this special invoice . . .

(b) [Defendant]'s answer

5.13

[Defendant] denies this claim because

- the default interest should be computed on the net balance which will be due to one party after setting off the claims and counterclaims which are justified in the opinion of the Arbitral Tribunal,

- the acceptance without any reservation of late payments is to be considered as a waiver of any right [Claimant] may have had to claim interest for late payment,

- the relevant LIBOR rate should not remain the same from the due date until the payment, but should vary according to the market.

(c) Arbitral Tribunal's decision

5.14

In the Arbitral Tribunal's opinion clause 15 (2) [of the subcontracting agreement] provides a special claim for default interest for delayed or non-payment of invoices which is under the contract a special claim for this case and therefore has to be dealt with separately.

The contract contains no clause in the sense that [Claimant] by accepting late payments without making any reservation would waive its right for default interest.

Also the way of computation of the default interest by [Claimant] is not contrary to the contract. The computation covers the time until June 30, 1992.

. . . . . . . . .

7.5

1. Interest on Claimant's Claim 1 1

Claimant claims interest at the prevailing current LIBOR rate for six months plus 1% starting July 1st, 1992 until the day of payment.

In the Arbitral Tribunal's opinion this claim is justified according to clause 15 (2) [of the subcontracting agreement] because of the unpaid invoices. The interest for the time until June 30, 1992 has been awarded to [Claimant] in Claim 2. Consequently for the time starting July 1st, 1992 until the day of payment the contractual interest has to be paid on the outstanding invoices in the amount of . . .

As to the interest rate the Arbitral Tribunal finds 5% as an average rate reasonable in the light of the contractual clause 15 (2) [of the subcontracting agreement].

Therefore Claimant is awarded 5% interest calculated on . . . starting July 1st, 1992 until the date of payment.

7.6

2. Interest on the balance of [Claimant]'s Claims 3 to 8 and [Defendant]'s Counterclaims 1 to 6 and 8 to 14, that is . . . in favour of [Claimant].

In principle both parties agree that interest on their respective claims has to be paid. [Claimant] claims default interest at 5% on the claims starting December 11, 1992 until the date of payment. Whereas [Defendant] asks for interest at the US$ LIBOR rate plus 1% on both amounts for an average rate to be determined by the Tribunal and until complete payment, the Arbitral Tribunal has applied analogously clause 15 (2) [of the subcontracting agreement] and awards [Claimant] 5% interest calculated on . . . starting March 1st, 1992 until the date of payment.

7.7

3. As to counterclaim 7 interest cannot be awarded since the claim of repayment on the one hand and the claim of return of the mortgage on the other hand have to be deemed like claims which both are not yet due.'

1
Outstanding payment for works performed until January 31, 1992 duly approved by Defendant but not paid.