Règlement d'arbitrage de la CCI de 1988

Art. 1, 6, 35, 46, 48, 49, 74 CVIM

Le défendeur commanda au demandeur une certaine quantité de matériel informatique que le fournisseur du demandeur (« initial supplier ») devait livrer afin de permettre au client du défendeur (« end-customer ») d'en assurer le montage. Avant livraison, une modification fut apportée au matériel, à l'insu du défendeur et du client final. Ce dernier informa le demandeur qu'il ne pouvait accepter la modification et réclama un matériel compatible avec la documentation initiale. Le défendeur informa entre-temps le demandeur qu'en raison de difficultés rencontrées par le client final, il n'avait besoin pour l'instant que de la moitié du matériel initialement commandé. Une première expédition du matériel, tel que modifié, eut lieu et fut acceptée par le défendeur. Il refusa toutefois d'accepter le reliquat, alléguant ne pas être lié par le contrat, faute de remise de la lettre de crédit qui y était visée et de réception de la dernière commande que devait passer le client final. La première question abordée par le tribunal arbitral se rapporte à l'existence, à la validité et au contenu du contrat. Le tribunal arbitral constata que le contrat conclu entre les parties avait force obligatoire en vertu du droit français comme de la CVIM. Il rejeta la prétention du défendeur selon laquelle le contrat ne serait pas entré en vigueur par suite de l'inexistence de la lettre de crédit, puisque la seule obligation subordonnée à la réception de la lettre de crédit était celle du demandeur consistant à livrer les marchandises dans un certain délai. Il conclut que le demandeur avait renoncé à cette condition en acceptant le paiement par un tiers.

Le droit applicable

'Under clause 9 of the disputed contract, the parties agreed that any dispute between them should be settled "in accordance with French law". They reiterated this choice in the Terms of Reference: under point XII, they stated that the "substantive law of France, excluding its conflict of laws rules, shall be applied by the Arbitral Tribunal". The Tribunal regards this choice as controlling, in accordance with the prevailing rule in international contracts, which is itself confirmed by Article 13.3 of the I.C.C. Rule [sic] of Arbitration.

However, one may wonder exactly to what set of rules a reference to "French law" leads today in an international contract. This is because the Vienna Convention on the International Sale of Goods (CISG) has been in force in France since its entry into force on 1 January 1988, that is prior to the signature of the disputed contract. Indeed, on several instances in their written or oral pleadings, the parties referred to the CISG. This prompts the Tribunal to state its position on this matter, although it must be pointed at the outset that no difference appeared between the French domestic law on sale and that laid down in the CISG on the issues under discussion in the present arbitration.

Under Article 1.1 of the CISG, the Convention applies: "(…) (b) when the rules of private international law lead to the application of the law of a Contracting State". Under the present circumstances, one can say that French law is designated by a rule of private international law, that of "party autonomy" - be it taken from the I.C.C. Rules of Arbitration or from the general law of international trade. Therefore one might conclude that the CISG is the sole source of rules to be applied in the present case.

However, under Article 6 of the CISG itself: "The parties may exclude the application of this Convention or (…) derogate from or vary the effect of any of its provisions". It is the opinion of the Tribunal that when the parties initially referred to "French law" in the contract, what they had in mind was the domestic law of France; and such view is confirmed by the wording of the above mentioned Article of the Terms of Reference, designating "the substantive law of France".

Therefore, should there be a difference between a relevant provision of French domestic law and the corresponding one in the CISG, the former should prevail. But no such difference surfaced during the discussions between the parties. Rather, the CISG appears more detailed on the disputed issues than the provisions of French domestic law. The Tribunal will therefore feel free to supplement its reasoning by references to the CISG, as the parties themselves did; but in so doing, it does not intend to set aside the applicable provisions of French law, which the parties expressly chose.'

Sur l'exécution du contrat

'Under the law of sale, the parties must deliver goods as stipulated in the contract (Fr. Civil code, art. 1603, 1625, 1234; CISG, art. 35). Conformity of the goods is the subject-matter of the dispute between the parties.

. . . It follows that strictly speaking, there was indeed a non-conformity between the goods referred to in the contract and those tendered. There remains to be seen whether the difference was of such a magnitude or irreversibility as to warrant a rescission of the contract, as Defendant later claimed. Under French law as in most national legal systems, only a fundamental breach of the contract warrants its rescission (résolution; see Article 1184 Civ. C.) and the rule is the same under the CISG (Article 49). In the present case, Claimant immediately pointed to Defendant that the difference could be cured by way of a minor mounting adjustment and at a minimal cost . . .

Claimant did what was necessary to allow the contract to be performed and to avoid its rescission, as contemplated by French law (article 1184 par. 3: "Rescission must be sought in court and time may be granted to the defendant according to the circumstances"). The CISG follows the same principle, while laying down more specific rules. According to Article 46.2, "If the goods do not conform with the contract, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract (…)"; under Article 48: ["](1) Subject to article 49, the seller may, even after the date for delivery, remedy at its own expense any failure to perform his obligation, if he can do so without unreasonable delay and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer"; and under Article 49, the buyer may declare the contract avoided only if "the failure by the seller to perform any of its obligations under the contract or this Convention amounts to a fundamental breach of Contract" (par. 1 a). In the present case, [initial supplier's] representative confirmed in his testimony that the work required on the manufactured bases to allow the motors to be adapted could be made at a trifle cost; indeed, never did Defendant or [end-customer] raise this issue of cost or request reimbursement for the work involved.

It follows that Defendant's persistent refusal to take delivery of the goods and its claim to rescind the contract on the ground of non conformity of the goods cannot be held justified. Indeed, the Tribunal notes that in the first telex whereby Defendant requested Claimant to defer the delivery of part of the ordered goods, it referred to "difficult situation in [end-customer]" . . .; no reference was made to a technical issue. . . . Whether [end-customer] knew of the technical change or not, it is a fact that they first prompted Defendant to require postponement of the delivery on grounds other than technical.

However, the Tribunal will take into account the fact that the goods were not exactly as described in the documents on which Defendant relied and that the mechanical parts which were manufactured by [end-customer] had to be adjusted by either enlarging the existing holes or drilling new holes.

It cannot be denied that neither of these solutions is totally adequate since both of them consist in an "approximative" solution, a "patching up" and do not meet the quality standards in force in the computer industry.

Yet Defendant does not establish that these defects and inadequacies would make the goods totally improper for their utilisation.

Nevertheless, Defendant has insisted that these inadequacies have caused her [sic] several problems, the existence and importance of which cannot seriously be denied by Claimant.

This damage suffered by Defendant justifies a reduction of the goods' price (réfaction du contrat in commercial matter under French law).

Taking into account the elements of the case, and in particular the non-conformity between the goods described in the contract and those tendered as well as the nature and the quality of the goods and their utilisation, the Tribunal considers that Defendant is entitled to a reduction in price corresponding to 25 % of the contract price of the remaining [goods].'

Sur le montant des dommages-intérêts

'The applicable principles, under French law as under most legal systems and the CISG, are that the plaintiff must be compensated for actual loss as well as lost profit (Fr. Civ. C, art. 1149; CISG art. 74). Claimant has raised a number of heads of damages, some of which appear justified, while others do not.'

Sur le taux d'intérêt applicable aux sommes restant dues

'Defendant challenged the interest rate put forward by Claimant, claiming that the applicable rate, if any, should be that of Singapore as the currency of the contract or of the creditor's residence. To that end, it relied on two arbitral awards. In ICC case No 5460, the dispute involved an Austrian resident and a South African firm. The single arbitrator awarded the claimant the Austrian interest as a "perfectly proper rate", without any particular justification; however, this was the rate claimed by the creditor and the issue does not appear to have been discussed. In ICC case No 6653-1993, the Arbitral Tribunal also applied the rate of the creditor's residence, which it justified as being in relation to the use which the creditor could have made of the sums and also to the currency of the contract (Journal du droit international, 1993, p. 1046). However, this tribunal was relying primarily on the CISG to adjudicate the dispute and had found that the Convention did not lay down any rule on the matter. In the present case, the parties expressly choose the "substantive law of France" to rule their relations. This leads the Tribunal to give primary consideration to the French law on the matter.

Under French law, the prevailing rule is that the assessment of contractual damages in an international contract is governed by the law of the contract, because the function of damages is "to substitute an equivalent to the obligation which was born under that law" (Batiffol-Lagarde, Droit international privé, 7° éd., t. 2, No 607, p. 336: "la fixation des dommages intérêts obéit à la loi du contrat parce qu'il s'agit de substituer un équivalent à l'obligation créée selon cette loi"; see to this effect, Cass. Civ. 15 mai 1935, Journ. dr. int. 1936.601, Rev. crit. dr. int. pr. 1936.463; Cass. com. 20 oct. 1953, Rev. crit. dr. int. privé 1954.386). The principle has also been applied by arbitral tribunals (ICC Case No 5428-1988, ICC Case No 5440-1991, quoted by Claimant). A further consideration is in favour of that solution; the choice of French law in this contract between a Polish firm and a Singapore firm obviously stemmed from the desire of each party to avoid the application of the other's national law and therefore to have a "neutral" law - and one with which to get acquainted easily - to govern their relations; the rate of interest is an element of that law (see Fr. Civ. C. art. 1907: "Interest is legal or contractual. Legal interest is fixed by law. Contractual interest may exceed that fixed by law, whenever this is not prohibited by the law (…)". The Tribunal therefore concludes that the rate of interest to be applied is the legal rate obtaining in France during the relevant period.'