Demandes reconventionnelles / Recevabilité / Articles 4 et 5 (1) du Règlement CCI

La convention d'arbitrage, faisant référence au Règlement d'arbitrage de la CCI, stipulait, entre autre, que « la procédure arbitrale sera régie par le règlement d'arbitrage de la CCI, le chapitre XII de la loi suisse sur le droit international privé du 18 décembre 1987 et, dans le silence de ces textes, à titre indicatif, par les principes du Code fédéral de procédure civile ».

'The only question to be settled at this stage is whether the counterclaims submitted by the Defendant are admissible.

In short, the Claimants consider that this condition is not fulfilled for two reasons:

- first, because the procedural conditions enabling a counterclaim are not fulfilled in this case;

- secondly, because, further to the assignment of claims which the Defendant has made to . . ., it no longer has quality for various reasons to submit the other applications it claims.

The Defendant contests this argumentation: first of all because the applications it submits are in its opinion in connexity with those of the statement of claims; secondly because the assignment has not in itself deprived the Claimant of the right to claim for liberation in its favour or in favour of a third party of the funds deposited with the Escrow Agent and being only partial, it has not deprived the Claimant of the rights it has retained.

Procedural conditions for the counterclaims

The admissibility in principle of the counterclaims must be settled in consideration of the rules of procedure applicable to the present dispute. According to the arbitration clause, these are in order of priority the Rules of the ICC, of the PILA, and, subsidiarily, but only as guidelines, of the Federal Law on Federal Civil Procedure of December 4, 1947 (LPC).

According to Art. 5(1) of the ICC Rules, "If the Defendant wishes to make a counter-claim, he shall file the same with the Secretariat, at the same time as his Answer as provided for in Article 4." The rule only contains a provision of form and time and does not settle the question as to what other conditions such a claim must fulfil in order to be admissible. It cannot be concluded along with the Defendant that this is a qualified silence, opening the door widely to the discretionary power of the arbitrators. On the contrary it must be admitted along with the Claimants that the question is not solved and that it must be in accordance with other principles of procedure applicable to the dispute.

The PILA does not contain any particular rule with respect to conditions which must be fulfilled in order for a party to present counterclaims.

According to art. 31 par. 1 LPC: "the Defendant may submit a counterclaim for the claims covered by art. 41 and 42 of the Federal Law of Judiciary Organisation of December 16, 1993 (= OJ). This claim must have a legal connexity with the principal claim or the two claims must be subject to compensation." This provision deals with the question at stake. It must nonetheless be noted to begin with that the arbitration clause mentions this law as a "guideline", which must inspire the Arbitrators in the conduct of the case. The Arbitrators are therefore not really bound by the interpretation which could be given to this rule in consideration of the specificity's of an ordinary procedure in Swiss law submitted to the highest judiciary authority. The Arbitrators are thus entitled to give to these guidelines an interpretation adapted to the needs of an international arbitration.

The question to solve is whether it is justified that the Arbitrators be able to decide on complementary applications submitted to them by the Defendant at the same time as those of the Claimant or whether they must refer the parties to another procedure. The answer is largely dictated by reasons of economy and opportunity: the Judges (or the Arbitrators) must be able, if a party so requests, to settle in the same procedure all the claims which may arise between parties with respect to the same system of legal relationships for which they adopted the same arbitration clause. To that effect, it is in itself sufficient that there be claims opposing the two same parties and based on a set of joint facts, enabling the Tribunal to lead a common investigation. This is why it is requested that there be a relation of connexity between these claims.

Even in the system of Art. 31 par. 1 LPC, this requirement may not be interpreted too strictly. This is evident considering that it is sufficient that the two claims have quality to be submitted to the Federal Court in direct procedure (Art. 41 and 42 OJ) and that they be subject to compensation; it is evident that claims opposing the same two parties on different matters are also subject to compensation; and if they are not subject to compensation, it is necessary but sufficient that there be a material link between them.

Even if it were to be admitted that a more strict interpretation should be retained in the particular field of ordinary procedure, the Tribunal considers that it is in conformity with the practice and spirit of arbitration procedures in commercial matters that claims opposing the same parties, with respect to claims based on the same arbitration clause and deriving from the same legal relationship or from a system of related facts, be submitted to the same tribunal.

In this case, the Claimants claim that the Defendant be obliged to liberate the Escrow Accounts, whereas the Defendant submits a series of applications tending in particular to liberation of the Escrow accounts in favour of the assignee, but also to payment of amounts of money related to the Agreement.

It is correct that the applications are of a different nature, but it is evident that they are in connexity. Indeed, they oppose the same parties, they are based on the same arbitration clause and derive from the same contract. Moreover, in the event that the Tribunal decides that the assignment of the claims to a third party had no effect on the guarantees, it could have to examine whether the conditions of liberation are fulfilled, which implies examination of the facts related to the subject matter of the counterclaims.

Consequently, the Tribunal considers that from this point of view, the counterclaims are admissible.'