La défenderesse, une société italienne, nomma le demandeur agent exclusif, chargé de la vente de ses produits dans une partie de l'Europe et dans un pays africain. La rémunération de l'agent était fixée à 7 % du prix net départ usine de toutes les ventes dans le territoire ayant donné lieu à paiement du prix. Le 19 août 1991, au cours de la première année du contrat, la défenderesse signa un contrat de vente avec une société dans le territoire et le demandeur demanda à connaître le prix de vente pratiqué et réclama paiement de la commission correspondante. La défenderesse prétendit qu'aucune commission n'était due, car la demanderesse n'avait entrepris aucune activité promotionnelle pour cette vente et le contrat d'agence avait été signé après la fin des négociations menées avec la société acheteuse. Le demandeur engagea alors une procédure d'arbitrage.

Droit applicable

'The January 1, 1991 Agreement does not provide a clear answer to that question inasmuch as its Article IX merely refers to "the Laws of International Chamber of Commerce Paris" without further explanation.

Claimant expressed the view that Belgian law should apply. He stated in his brief dated April 27, 1995 that "the claimant is of the opinion that Belgian law is applicable for the reasons expressed in the petition". And it was said in the petition dated December 21, 1993: "The 1st January 1991 agreement contains no provisions with regard to applicable law. However, my petitioner is of the opinion that Belgian law is applicable to the present dispute, given that most of the points of contact - my petitioner's registered office, the Territory in which my petitioner was required to fulfil its commitments, the place where the contract into being (sic), where entitlement to commission arises and where commissions are to be paid - are located in Belgium. These places of contact are given by way of example."

Defendant did not express any view on this question.

The arbitrator is of the opinion that the contract is governed by Belgian law for the following reasons.

The Convention of Rome on the law applicable to contractual obligations, dated June 19, 1980, was ratified by Italy on July 25, 1985 and by Belgium on July 31, 1987.

This convention states in its article 4, paragraph 1: "To the extent that the law applicable to the contract has not been chosen in accordance with Article 3, the contract shall be governed by the law of the country with which it is most closely connected" (emphasis added).

Article 4, paragraph 2 adds: "Subject to the provisions of paragraph 5 of this Article, it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence, or, in the case of a body corporate or unincorporate its central administration. ...." (emphasis added).

Article 4, paragraph 5 specifies: "Paragraph 2 shall not apply if the characteristic performance cannot be determined, and the presumption in paragraph 2, 3 and 4 shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country."

In the present case, the characteristic performance was for [Claimant] to act as an exclusive sales representative in a given territory . . .

In view of the facts:

- that the potential right to a commission for the sale of August 19, 1991 arose in Belgium

- that [Claimant]'s central administration is in Belgium

- that it does not appear from the circumstances as a whole that the contract is more closely connected with another country than Belgium,

Belgian law must apply.'

Applicabilité du contrat d'agent commercial à la vente du 19 août 1991

'Article 4 of the Agency Agreement entered into between [Claimant] and [Defendant] on January 1, 1991 states: "The company shall pay the representative seven percent (7%) on all sales on ex works net invoice price of all paid sales invoices in the said territory."

This agreement was still in force and had not been terminated on August 19, 1991 when a contract was signed between [Defendant] and [company X] relating to the purchase by [company X] of a . . . plant, model . . ., at a cost of . . .

Nor had it been terminated when [Claimant], on May 5, 1992 wrote to [Defendant] to ask for payment of the commission, as the above mentioned plant model had been delivered.

Under article 1134 of the Belgian Civil Code: "Agreements legally entered into constitute the law between the parties who concluded them ... They must be executed in good faith."

The wording of article 4 of the 1 January 1991 agreement provides that the claimant is entitled to a 7% commision "on all sales on ex works ...". The use of the term "all" is essential to the resolution of the present dispute. Indeed this word is absolutely clear and does not allow for any exception. It expresses the intention of the parties to conclude an exclusive agency agreement and is the counterpart of the Representative's overall duties within the Territory.

Article 4 further specifies "... on ex works net invoice price of all paid sales invoices in the said Territory". It would seem to result from this wording that the agreement makes a distinction between: the entitlement to a commission for [Claimant] which arises at the time when the order is passed, and the payment itself of the commission which becomes due only when the invoice has been paid to [Defendant].

The agreement does not provide for a specific mechanism of notification by [Defendant] to [Claimant] that the payment of the invoice has taken place. However, as it was said above and pursuant to article 1134 of the Belgian Civil Code, "agreements must be executed in good faith", which means that the company ([Defendant]) has the general duty to inform the representative ([Claimant]) when the payment is made.

Such information was not specifically provided in the present case. However it does not clearly result from the overall correspondence between the parties from May 5, 1992 (enclosure 5 to the petition for arbitration) to August 12, 1993 (enclosure 19 to the petition for arbitration) that the payment to [Defendant] has not been made. On the contrary, the letter from [Defendant] to [Claimant's counsel] dated June 24, 1993 (enclosure 18 to the petition for arbitration) implicitly establishes that this payment has been made.

The 7% commission on the sale made by [Defendant] to [company X] of a . . . plant, model . . . at a cost of . . . is therefore due and [Defendant] owes [Claimant] the sum of . . .'

Le droit à commission suppose-t-il l'exercice d'une activité de promotion ?

'In his letter to [Claimant's counsel] dated June 24, 1993, [Defendant] states: "We think that the negotiations for acquiring the order from [company X] are not part of the agency contract, since no promotion activity, essential for obtaining commissions, has been carried out by the company [Claimant] and all the negotiations have been concluded by our sales director before signing the agency agreement".

This argument cannot succeed. Article IV of the agency agreement does not subordinate the right to a commission to the existence of a prior specific promotion activity by [Claimant]. One must not add to the contents of Article IV which is unambiguous and gives a right to a commission on all sales concluded by [Defendant] in [Claimant]'s allotted territory, regardless of the way in which these sales were arrived at.'

Intérêts

'[Claimant] requests a delayed payment interest calculated at 8% a year and it is not disputed that 8% represents under Belgian law the applicable legal interest on outstanding debts.

As it was said above and pursuant to Article IV of the 1 January 1991 agreement, the payment of the 7% commission became due by [Defendant] to [Claimant] at the time when the invoice relating to the August 19, 1991 sale to [company X] was paid to [Defendant].

For the reasons stated above and in the absence of a specific payment notification mechanism, coupled with the fact that [Defendant] remained silent during the entire proceedings, it is not precisely known when the . . . invoice relating to the model . . . was actually paid to [Defendant].

However, in the continuing silence of [Defendant], there is all reason to believe that this payment had taken place before February 24, 1993, when [Claimant] sent to [Defendant] its first registered reminder letter (enclosure 14 to the petition for an arbitration), which constitutes an unambiguous and formal notice for payment. If, at that time, [Defendant] had not yet been paid, it should have let [Claimant] known so. [Defendant]'s failure to answer this registered letter is tantamount to the recognition that the payment had taken place. All the more so since [Defendant], when it finally answered [Claimant] on June 24, 1993, did not contest in any way that the payment had occurred.

Therefore, a delayed payment interest calculated at 8% a year from the date of the first registered payment reminder, that is February 24, 1993 is due to [Claimant] until full payment of the outstanding amount.'