Les demandeurs et le défendeur conclurent un contrat de fourniture d'une certaine quantité de riz, d'une qualité définie et pour une période convenue. Les demandeurs allèguent le défaut de fourniture du riz par le défendeur, alors que toutes les formalités requises avaient été accomplies. Le défendeur est accusé de chercher à retarder l'exécution, d'invoquer des difficultés nées d'une intervention étatique et d'une inondation dans le pays d'exportation et de tenter de renégocier les prix convenus. Le contrat de vente contient une clause d'arbitrage se référant au Règlement d'arbitrage de la CCI. Le défendeur refuse de prendre part à la procédure arbitrale. L'arbitrage se poursuit donc ex parte, conformément à l'article 15(2) du Règlement d'arbitrage de la CCI dans sa version de 1988. Le tribunal arbitral décide d'appliquer au contrat les usages commerciaux et les principes du commerce international généralement admis, tels qu'ils ressortent de la Convention de Vienne de 1980 sur les contrats de vente internationale de marchandises et des <b>Principes d'Unidroit </b>(dont l'article 7.4.6 est visé pour le calcul des dommages-intérêts). Le tribunal arbitral estime que le défendeur a manqué à ses obligations et qu'il ne peut se prévaloir d'aucun événement de force majeure l'ayant empêché de s'exécuter. Des dommages-intérêts sont accordés aux demandeurs. Les frais de l'arbitrage doivent être supportés pour trois quarts par le défendeur et pour le quart restant par les demandeurs, chaque partie devant supporter ses propres frais de défense.

Les sentences dans les affaires nos 8501, 8502 et 8503 se rapportent à des litiges nés à propos de contrats ayant tous pour objet la fourniture de la même marchandise dans des circonstances comparables. Le même tribunal arbitral a tranché les trois affaires et prononcé les trois sentences en retenant le même schéma concernant les questions et arguments d'ordre juridique. C'est la raison pour laquelle une seule de ces sentences, représentative des trois, sera présentée ici.

<i>Sur le droit applicable :</i>

'The Contract concluded between the Parties, and upon which the present proceeding is based, is silent as to the law to be applied on the merits. There is, accordingly, no express choice of law clause. Similarly, having regard to the correspondence exchanged between the Parties, the Arbitral Tribunal is of the opinion that no implied choice of law can be inferred from the relationship between the Parties.

The Contract, as well as the present arbitration, involve, on the one hand, a Vietnamese seller and, on the other hand, a Dutch buyer acting through its French company. The place of arbitration is Paris, France.

This dispute has connections with several national laws, all of which may have a relevant role. Under Article 13(3) of the ICC Rules, the Arbitral Tribunal shall apply the law designated by the rule of conflict "which it deems appropriate".

The Arbitral Tribunal notes that the Respondent has not stated its position as to which law should apply. Respondent has never submitted, in the context of this arbitration or in the correspondence between the Parties, that Vietnamese law should apply. The Arbitral Tribunal is of the opinion that it is not required ex officio to identify potential issues that might possibly arise under Vietnamese law.

Although the Contract contains no choice of law clause, it refers to international trade usages. Article 6 of the Contract, with respect to the price to be paid by the buyer, provides that INCOTERMS 1990 shall apply. Similarly, Article 13 of the Contract stipulates, as regards force majeure, that the clause of UCP 500 shall apply.

It thus appears that the Parties have, to a large extent, agreed to submit their relationship to recognized trade usages such as the INCOTERMS or the Uniform Customs and Practice for Documentary Credits (UCP), published by the ICC. The Arbitral Tribunal considers that by referring to both the INCOTERMS and the UCP 500 the Parties showed their willingness to have their Contract governed by international trade usages and customs.

The application of the relevant trade usages is consistent with Article 13(5) of the ICC Rules and with the arbitral practice . . .

For the foregoing reasons, the Arbitral Tribunal finds that it shall decide the present case by applying [to] the Contract entered into between the Parties trade usages and generally accepted principles of international trade. In particular, the Arbitral Tribunal shall refer, when required by the circumstances, to the provisions of the 1980 Vienna Convention on Contracts for the International Sale of Goods (Vienna Sales Convention) or to the Principles of International Commercial Contracts enacted by Unidroit, as evidencing admitted practices under international trade law.'

<i>Sur l'indemnisation due au demandeur en raison du manquement du défendeur :</i>

'The Arbitral Tribunal found that the Respondent failed to comply with its obligations under the Contract and that said failure was not legally justified. It now remains to calculate the amount of compensation due to the Claimants caused by the Respondent's default.

As regards the applicable law on the question of compensation, the Arbitral Tribunal, as previously mentioned, considers that the Parties have expressed their mutual intention to have their relationship governed by general principles of international trade.

The INCOTERMS 1990 or the UCP 500, to which reference is made in the Contract, contain no provision regarding the effect of the failure by one party to fulfil its obligations under the Contract.

The Arbitral Tribunal considers that this question should be examined in light of generally admitted principles of international trade as contained for example in international treaties. For this reason, the Arbitral Tribunal is of the opinion that the principles embodied in the Vienna Convention on the International Sale of Goods of 1980 (Vienna Sales Convention) reflect widely accepted trade usages and commercial rules. Although the Vienna Sales Convention is not as such directly applicable to the Contract (Vietnam has not ratified this Convention), the Arbitral Tribunal finds that it may refer to its provisions as the expression of usages in the world of international commerce . . .

Article 76 of the Vienna Sales Convention reads as follows:

"(1) If the contract is avoided and there is a current price for the goods, the party claiming damages may, if he has not made a purchase or resale under Article 75, recover the difference between the price fixed by the contract and the current price at the time of avoidance as well as any further damages recoverable under Article 74. ( ...)

(2) For the purposes of the preceding paragraph, the current price is the price prevailing at the place where delivery of the goods should have been made or, if there is no current price at that place, the price at such other place as serves as a reasonable substitute, making due allowance for differences in the cost of transporting the goods."

The method of calculation of damages in the Vienna Sales Convention is analogous to that envisaged by different national laws. . . .

Finally, the Arbitral Tribunal shall refer to the work of the International Institute for the Unification of Private Law (Unidroit). Article 7.4.6 of the Unidroit Principles of International Commercial Contracts provides:

"(1) Where the aggrieved party has terminated the contract and has not made a replacement transaction but there is a current price for the performance contracted for, it may recover the difference between the contract price and the price current at the time the contract is terminated as well as damages for any further harm.

(2) Current price is the price generally charged for goods delivered or services rendered in comparable circumstances at the place where the contract should have been performed or, if there is no current price at that place, the current price at such other place that appears reasonable to take as a reference."

Based on these applicable principles of law, the Claimants are entitled to damages calculated as the difference between the contract price and the relevant market price. The contract price is easily determined by the contractual provisions agreed upon by the Parties, which include the initial Contract and its amendment. . . .

With respect to the determination of the relevant market price, two issues must be addressed. One needs first determine the reference time at which the market price is calculated, and the place of reference. . . .

[Reference to Article 76 CISG and various national laws.]

It results from the foregoing analysis that, unless a current price is not available, damages should be calculated with reference to the market price at the place where delivery of the goods should have been made. In the present case, the goods being sold FOB Ho Chi Minh City port, the place of delivery of the goods for the purposes of this provision is Ho Chi Minh City . . .

As regards the relevant time to refer to the local market price, the Arbitral Tribunal shall apply the general rule according to which the relevant time for specifying the current price is that of the default. . . .'

<i>Sur les intérêts :</i>

'The Claimants' prayer for relief asks for the application of compound interest. The Arbitral Tribunal notes that the granting of compound interest is not a universally recognized practice in international trade. Some national laws prohibit the capitalization of interest. Moreover, the Claimants have not shown any particular reason why in this case compound interest should be granted. As a consequence, the amount hereby awarded shall bear simple interest. . . .

. . . the amount awarded shall bear interest commencing . . . the date the Request for Arbitration was received by the ICC until payment.

As to the rate of interest, the Arbitral Tribunal considers that the rate of 12% per annum requested by the Claimants is not excessive and that it would have been up to the Respondent to contest this rate, which it has not done. . . .'