Le défendeur, un fabricant d'outils espagnol, engagea le demandeur comme son agent avec pour mission d'assurer la promotion de ses produits auprès de clients situés en Allemagne et dans d'autres pays. Les contrats conclus avec les clients devaient être signés par le fabricant. Le contrat d'agence prévoyait une commission de 10 % pour le demandeur, celle-ci devant être payée au plus tard deux semaines après réception du versement du client. L'agent prétendit que le mandant n'avait pas payé des commissions se rapportant à des ventes qu'il avait réalisées grâce à l'intervention de l'agent en Allemagne et en Belgique.

'1) As to the law applicable to the merits of the case

The agreement to arbitrate as contained in the arbitration clause under section 7 of the contract of May 24, 1993 states:

If in a case of dispute an agreement will not be reached, both sides agree to submit their differences to the International Chamber of Commerce in Paris (France).

By this agreement the parties did not expressly agree upon the law applicable to the merits of the case. The first task of the arbitrator is therefore to determine the applicable substantive law in this matter (as set forth in point 1 of the issues to be determined in the Terms of Reference).

It should be considered that art. 13(3) of the ICC Rules states:

The parties shall be free to determine the law to be applied to the merits of the dispute. In the absence of any indication by the parties as to the applicable law, the arbitrator shall apply the law designated as the proper law by the rule of conflict which he deems appropriate.

The jurisprudence and the doctrine admit the entire freedom of arbitral tribunals to decide for themselves which rules of law or set of legal rules they consider appropriate to settle a dispute without being bound to refer to a specific system of conflict of laws (see: Pierre Lalive "Les règles de conflit de lois appliquées au fond du litige par l'arbitre international siégeant en Suisse" in Revue de l'arbitrage 1976; Philippe Fouchard "Arbitrage commercial international" 1963, Dalloz p. 351; ICC Awards numbers 2585, 2558 (1976), 2886 (1977), 3880 (1983) in Collection of ICC Arbitral Awards 1974-1985).

In this case as the parties failed to choose the law applicable to the merits and in the absence of a contractual choice of the place of arbitration (Paris was decided by the Court) the French law as lex fori need not be referred to for the determination of the law governing the contract as this element would be in this case fortuitous, especially as an arbitral tribunal in such a case is said to have no forum (see ICC Awards no. 1422 (1966) and no. 4132 (1983), p. 186 and 164 of the Collection of ICC Arbitral Awards 1974-1985; Yves Derains "Les normes d'application immédiate dans la jurisprudence arbitrale internationale" in Etudes offertes à Berthold Goldmann, Paris 1982).

The arbitrator will proceed to examine the elements of the case in determining which criteria are relevant in this dispute to find the law applicable to the contract.

According to the circumstances that:

- The agreement of May 24, 1993 is an international agency contract between a German agent and a Spanish principal.

- The nationalities of the parties are German and Spanish.

- The contract was signed at 2 different places: [a German town] for Claimant and [a Spanish town] for Defendant.

- The language of the contract is English.

- The territory granted to the agent is Germany. This is also the place where the Defendant has to market its products through its intermediary.

- The language of the inquiries and offers is German.

- The invoices are made in German and the price is calculated in DM.

- The Defendant as supplier has its registered offices in Spain.

- The Claimant as agent has its registered offices in Germany where it has its main location.

The arbitrator, on the basis of the general concepts of private international law, defines the criteria to determine the law applicable to an agency contract as those of the closest connection with the country in which the characteristic performance of the contract is to take place and also the place where the agent has its main location.

In this case the Claimant as agent has its main location in Germany. Germany is the territory in which the agent has to seek customers for the supplier. Germany is the country in which the characteristic performance of the agent is to take place and the country also in which the supplier has to deliver its products through the intermediary of the agent.

Germany is therefore the country with which the contract has the closest connection.

Consequently, the German substantive law is applicable to this contract.

2) As to the substance of the dispute

According to point 2 of the Terms of Reference, the arbitrator shall decide if Claimant's claims are justified and if so, for what amount. The claims concern the payment of the alleged outstanding commission fees and a 5% interest rate to be applied to them.

a) Payment of the alleged outstanding commission fees

Under German law Art. 84(1) HGB (German commercial code), the commercial agent is a self-employed intermediary who has continuing authority to negotiate or to conclude transactions on behalf of the company he represents (the principal). The term "self-employed" applies to someone who is free to organize his activity and plan his working schedule himself.

In conformity with this definition, under the agreement dated May 24, 1993, Claimant is a commercial agent. The agreement defines the duties of the agent under sections 1, 2 and 5 as follows:

The supplier grants the agent the agency in the territory of Germany for all kinds of tools which will be produced in his factory.

The agent will solicit for customers and inquiries/orders for the products.

The agent normally does not work as a reselling trader; the delivery contracts will be undersigned by the supplier and the customer.

According to this task description, Claimant should search for customers to buy tools produced by Defendant. The sales agreements concluded with such customers on behalf of Defendant are the results of its prospecting of the market.

Art. 87(1) HGB states that the usual remuneration for the agent as a result of his activities is the commission.

This commission was fixed in the agreement under section 4 as follows:

The prices of the products (invoice prices) include a 10% commission for the agent. This fee has to be paid not later than 2 weeks after having received the payment from the customer against invoice (the same in case of part payment by the customer).

Under the agreement, the soliciting conducted by Claimant led to the conclusion of the following sales agreements:

. . .

As evidence of all these transactions, Claimant submitted several orders of customers sent to Defendant as well as Claimant's own invoices for commission fees.

The arbitrator accepts this evidence as being well founded and sufficient.

The arbitrator takes into account that articles 87 and 87a HGB stipulate as a prerequisite for the right to commission that the agent's activity has led to the conclusion of a transaction between the principal and the customer, and that the agent, however, does not receive the commission until the principal has filled the order.

The arbitrator also considers that the agreement says that this commission is due "not later than 2 weeks after having received the payment from the customer against invoice (the same in case of part payment by the customer)".

In the absence of any contradictory evidence from the Defendant and considering that the invoices for the commission fees were mailed to Defendant between 3 to 11 months after the transactions took place, the arbitrator considers that all the customers had paid the Defendant by the time the Claimant submitted its invoices for commission to Defendant and that at least 2 weeks had passed since the customers had paid the supplier as stipulated in section 4 of the agreement. (On the maturity of payment see Palandt § 271 no. 1.)

Once again in the absence of any contradictory evidence from the Defendant, it should be concluded that the solicitations of Claimant led to said transactions and that the Defendant filled the orders in delivering the tools to the customers within the meaning of art. 87(1) HGB.

The arbitrator has no doubt that all commission fees mentioned above are then owed to Claimant . . .

According to art. 87 HGB and section 4 of the agreement, Claimant as agent is entitled to ask for the payment of the commission fees which are owed to it by Defendant.

These commission fees are as follows: . . .

b) Concerning the 5% interest rate

Claimant also claims 5% interest per year to be paid on the commission fees owed to it by Defendant.

Art. 353 HGB allows merchants to claim interest starting from the day when their claims, which arose from business done with each other, become due and art. 352(1) HGB fixes the legal interest rate at 5% per year.

It is noted that both Claimant and Defendant are merchants according to art. 6(1) HGB. As the conclusion of the agreement of May 24, 1993 was in the interest of both Claimant and Defendant, it is a bilateral business agreement ("ein beiderseitiges Handelsgeschäft") within the meaning of art. 343(1) HGB (BGH NJW 1960, 1853, Baumdach/Duden Hopt, HGB, 26. Auflage, § 343, 2) A.).

Therefore Claimant as agent is entitled to receive 5% interest on the commission fees still owed to it from the date the commission fees became due, i.e. the date of their invoicing by Claimant.

The interest owed to Claimant is calculated as follows: . . .'