Version du Règlement : 1988

Demandeur : société étasunienne

Défendeurs : diverses personnes morales et physiques mexicaines

A la suite de l'acquisition par le demandeur d'une participation au capital du défendeur n° 1, les parties au présent litige conclurent un pacte d'actionnaires concernant notamment la gestion dudit défendeur et visant la prise en compte, dans cette gestion, du demandeur en sa qualité de nouvel associé. Le demandeur prétendait que les autres défendeurs n'auraient pas respecté les règles relatives à la gestion de l'entreprise fixées entre les parties par ce pacte d'actionnaires qu'ils auraient empêché ses représentants d'exercer les fonctions qui leur étaient attribuées. Il avait donc mis en application le mécanisme d'achat/vente prévu par le pacte d'actionnaires comme moyen de mettre fin aux relations au cas où la dissolution de ces relations serait souhaitée. Les parties interprétaient différemment les déclarations faites lors de l'application de ce mécanisme, le demandeur alléguant que les défendeurs lui auraient cédé la totalité des actions du défendeur n° 1 qu'ils détenaient et les défendeurs affirmant avoir acquis les actions détenues par le demandeur en acceptant son offre. Les défendeurs prétendaient également que certaines dispositions du contrat de cession d'actions et du pacte d'actionnaires ainsi que des statuts modifiés du défendeur n° 1 seraient nulles ou auraient été frauduleusement élaborées ou exécutées de mauvaise foi ou violées par le demandeur. L'énumération des points sur lesquels le tribunal arbitral devait statuer, conformément à l'acte de mission, comprenait toutes mesures provisoires ou conservatoires sollicitées par le demandeur à l'action principale et les défendeurs à l'action reconventionnelle. Il fut statué sur cette question dans une sentence intérimaire dont proviennent les extraits ci-dessous.

Le contrat de cession d'actions et le pacte d'actionnaires ainsi que les statuts de la société dont les actions et les actionnaires faisaient l'objet de ces conventions (défendeur n° 1) contenaient une clause d'arbitrage qui prévoyait le règlement des différends par conciliation ou, à défaut, par l'arbitrage de la CCI. Les statuts prévoyaient l'application du droit mexicain au règlement des différends liés à leur exécution et à leur interprétation. Le contrat de cession d'actions et le pacte d'actionnaires stipulaient qu'ils seraient régis et interprétés conformément au droit mexicain. Les statuts précisaient en outre que toutes les questions non réglées par leurs dispositions seraient soumises aux règles générales du droit mexicain sur les sociétés. Le tribunal arbitral estima donc qu'il convenait d'appliquer les règles de fond mexicaines aux questions traitées dans cette sentence intérimaire.

'In the Addendum to the Request for Arbitration . . . and in its Opening Brief . . . Claimant requested the following interim measures:

a. that the shares in defendant and counterclaimant number 1 owned by defendants and counterclaimants numbers 2 to 7 be deposited with a receiver or in an escrow or trust (measure 1); 1

b. the appointment of a neutral third party to manage the operations and affairs of defendant and counterclaimant number 1 pending resolution of the arbitration (measure 2);

c. the principal place of business of defendant and counterclaimant number 1 and its subsidiaries, and the books and records of those entities, shall remain in their respective current locations (measure 3);

d. the purchasing, selling or refinancing of the assets of defendant and counterclaimant number 1 and/or its subsidiaries shall be prohibited (measure 4);

e. defendants and counterclaimants numbers 2 to 7 shall provide to Claimant's members of the Board of Directors of defendant and counterclaimant number 1 and its subsidiaries (measure 5):

i. copies in the ordinary course of business of all governmental filings and any publicly disseminated material;

ii. monthly operating statements and financial reports of defendant and counterclaimant number 1 and its subsidiaries;

iii. at least 20 days prior to the closing or any proposed purchase, sale, exchange, refinance, or any other transaction not in the ordinary course of business, a statement (a) disclosing the terms of the transaction, (b) any past or present relationship between any of the parties to the proposed transaction, (c) a detailed account of all proposed use of funds, and (d) copies of all documents showing the basis of any valuation involved in the transaction.

. . .

Regarding the law applicable to the adoption of interim measures by an Arbitral Tribunal, Claimant made the following argument:

"The relevant laws in Ontario, Canada (the site of this arbitration) and in Mexico both give arbitration tribunals broad powers to issue interim and conservatory relief.

The International Commercial Arbitration Act, which is the relevant law in Ontario, adopts the UNCITRAL Model Law and provides in Article 17:

'Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. The arbitral tribunal may require any party to provide appropriate security in connection with such measure.'

Likewise, Article 1433 of the Mexican Commercial Code states:

'Unless otherwise agreed to by the parties, the arbitration tribunal may, upon petition of any of them, order precautionary measures for the protection of the subject matter of the dispute. The arbitration tribunal may exact from either of the parties a sufficient guarantee in connection with such measures.'

Thus, the Arbitral Tribunal may grant the interim and conservatory measures requested by Claimant in order to protect the subject matter of this arbitration . . ."

In their brief . . . defendant and counterclaimants responded to the measures requested by Claimant with the following allegations:

a. Measure 1

i. Claimant does not demonstrate the need for such a measure and the conduct of defendants and counterclaimants does not justify it;

ii. the agreement of the Parties and the Terms of Reference refer to Mexican law, which does not contemplate any such interim measure;

iii. there is no legal basis for applying a law other than Mexican law; and

iv. defendants and counterclaimants have not requested the adoption of any such interim measure with respect to Claimant's shares. 2

b. Measure 2

i. its subject matter is not arbitrable under Mexican law and the Arbitral Tribunal is not empowered to issue such interim measure which is not subject to enforcement by Mexican courts;

ii. such interim measure is not justified because it is not permitted by the Mexican Ley General de Sociedades Mercantiles (LGSM) or defendant and counterclaimant number 1's bylaws;

iii. Claimant's designees to defendant and counterclaimant number 1's Board of Directors, Management Committee and other administrative functions have failed to perform their duties;

iv. such designees were regularly substituted by alternates, ". . . all of them lawyers entrusted with the task of raising legalistic obstacles and arguments . . .";

v. . . ., Claimant's appointed comisario, has failed to perform his duties and exercise the rights provided for in Articles 164 through 171 of the LGSM (in particular in Article 166); and

vi. rather than the interim measures requested, Claimant needs to exercise their rights under the LGSM and defendant and counterclaimant number 1's bylaws.

c. Measures 3, 4 and 5

i. Claimant does not demonstrate the need for such a measure and the conduct of defendants and counterclaimants does not justify it;

ii. the agreement of the Parties and the Terms of Reference refer to Mexican law, which does not contemplate any such interim measure;

iii. there is no legal basis for applying a law other than Mexican law;

iv. defendant and counterclaimant number 1's performance has improved since . . . left the company;

v. defendant and counterclaimants numbers 2 to 7 do not exist as a legal entity and would be in the physical impossibility to perform what is requested from them; and

vi. the LGSM and, in general Mexican legislation, provide for sufficient protection not only of minority shareholders ". . . but for all other third parties' interests and as such, the provisions of the LGSM are mandatory and not subject to arbitration."

In its Reply Brief . . . Claimant reiterated its position that both Ontario law and Mexican law give arbitral tribunals broad powers to order interim and conservatory relief. In addition, Claimant responded to defendants['] and counterclaimants['] allegations as follows:

a. Measure 1

i. the laws of Ontario and Mexico do not require a showing of party misconduct to justify a precautionary measure;

ii. Mexican law (article 1433 of the Commercial Code) expressly contemplates broad "precautionary measures for the protection of the subject matter of the dispute".

b. Measures 2, 3 and 4

i. defendants and counterclaimants fail to suggest how any interim measure is contrary to "the principles and rules of law regarding the structure, powers and liability of the bodies provided for in the L[G]SM";

ii. defendants and counterclaimants cite no statute or bylaw prohibiting any of the interim measures, and article 1433 of the Mexican Commercial Code expressly authorizes broad "precautionary measures for the protection of the subjectmatter of the dispute";

iii. defendants and counterclaimants numbers 2 to 7 have prevented Claimant's representatives from performing their duties in defendant and counterclaimant number 1 by . . .

iv. regarding the argument that [the family of defendants and counterclaimants 2 to 7] does not exist as a legal entity, the conservatory measures are sought as to defendant and counterclaimant number 1 and as to the individual members of the . . . family (defendants and counterclaimants numbers 2 to 7), each of whom is a party to the arbitration.

c. Measure 5

i. these measures arise directly from defendant and counterclaimant number 1's bylaws and the Shareholders' Agreement which provide for minority inspection rights, minority representation on Management Committees and Boards of Directors, participation in shareholders' meetings and the appointment of a minority comisario;

ii. defendants and counterclaimants do not challenge the legality of those contract provisions and such provisions directly reflect Mexican law; and

iii. thus, these conservatory measures should be ordered.

. . .

Findings

In its deliberations on the interim measures requested by Claimant, the Arbitral Tribunal reached the conclusion that, should any such measures be granted, their initial adoption should be in the form of an order to be immediately notified to the Parties, rather than in the form of a draft award to be submitted to the ICC Court for scrutiny and approval pursuant to article 21 of the ICC Rules.

In making this determination, the Arbitral Tribunal acted:

a. without prejudice to the incorporation of any such interim measure into this interim award; and

b. confident that the Parties would in good faith and without delay comply with the order of the arbitrators.3

The Arbitral Tribunal's conclusion was also in line with the ICC Commission on International Arbitration's opinion that orders for interim measures of protection should not normally be made in the form of an award, given the need for scrutiny and approval of a draft award by the ICC Court as required by article 21 of the ICC Rules.4

Moreover, the arbitrators were also confident that, in the same spirit of goodwill that they have demonstrated in signing the Terms of Reference, the Parties would refrain from any action likely to widen or aggravate the dispute, or to complicate the task of the Arbitral Tribunal or even to make more difficult, in any way, the observance of subsequent arbitral awards, including this one.

To the extent that interim measures are regarded as matters governed by laws of procedure, they are subject to article 11 of the ICC Rules, pursuant to which:

"The rules governing the proceedings before the arbitrator shall be those resulting from these Rules and, where these Rules are silent, any rules which the parties (or, failing them, the arbitrator) may settle, and whether or not reference is thereby made to a municipal procedural law to be applied to the arbitration."

This provision of the ICC Rules permits the Parties and the arbitrators to conduct the arbitration proceedings outside any specific national procedural law, except insofar as any such relevant procedural law contains rules that apply mandatorily.5 Likewise, section VII.3 of the Terms of Reference signed by the Parties and by the arbitrators provides that:

"The rules governing the proceedings shall be the ICC Rules, the rules set out in these Terms of Reference and, where the ICC Rules and the Terms of Reference are silent, such other rules as the Arbitral Tribunal may from time to time settle."

But the authority of the arbitrators to grant interim measures derives not only from their inherent powers to conduct the arbitral procedure, but also from Article 8(5) of the ICC Rules:

"Before the file is transmitted to the arbitrator, and in exceptional circumstances even thereafter, the parties shall be at liberty to apply to any competent judicial authority for interim or conservatory measures, and they shall not by so doing be held to infringe the agreement to arbitrate or to affect the relevant powers reserved to the arbitrator." [Emphasis added].

Although this provision refers primarily to interim measures sought from a competent judicial authority: (i) it does acknowledge the "relevant powers reserved to the arbitrator"; and (ii) it limits recourse to the judiciary after the constitution of the Arbitral Tribunal to "exceptional circumstances".6 In other words, the ICC Rules recognize that, once appointed, arbitrators have primary authority to order any such measures.7

Having concluded that arbitrators have the power under the ICC Rules to order interim measures,8 the next question is to determine whether mandatory provisions of relevant municipal law prohibit the adoption of such measures by an Arbitral Tribunal.

Not only have defendants and counterclaimants failed to specifically identify any such mandatory provision, but both the laws of Ontario 9 (lex fori) and Mexico 10 (lex contractus) expressly grant arbitrators that authority in substantially the same terms as Article 17 of the UNICTRAL Model Law on International Commercial Arbitration (the UNCITRAL Model Law): 11

"Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measures of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. The arbitral tribunal may require any party to provide appropriate security in connection with such measure."

The legislative history of article 17 of the UNCITRAL Model Law reflects the concerns of some of its members to specifically limit the power of the arbitrators to certain measures. Ultimately, the UNCITRAL Working Group adopted a broader power providing for the adoption of any measure of protection in respect of the subject matter of the dispute. 12

In view of these considerations, this Arbitral Tribunal concluded that:

a. the ICC Rules, the Terms of Reference and the arbitration laws of Ontario and Mexico authorize it to order interim measures; and

b. such authority includes the power to order any interim measure to protect the subject matter of the dispute.

Regarding exercise of such power by the arbitrators, interim measures of protection are intended to serve one or more of three basic objectives: (i) ensure that the purpose of the litigation is not frustrated pending pronouncement and enforcement of the final decision on the merits; (ii) regulating the conduct of and the relations between the parties during the proceedings; and (iii) preserving evidence or regulating its administration.13

In this case, Claimant contends that it has been effectively locked out of the company . . . in which it made a . . . investment. In addition, both Parties claim ownership of the entire company either as a result of the operation of clause . . . [buy/sell provision] of the Shareholders Agreement or by virtue of the issuance and acceptance of an offer under Mexican law. 14

Given this situation and without prejudice to their decision on the merits, the arbitrators concluded that the adoption of interim measures numbers 1, 3, 4 and 5 were required to protect the subject matter of the dispute and to regulate the conduct of and the relations between the parties as partners in disagreement, pending resolution of their dispute. The adoption of these measures by the Arbitral Tribunal would be compatible with the ICC Rules, the Terms of Reference, Ontario and Mexican law and it would contribute to accomplish objectives . . . described . . . above. Conversely, the arbitrators concluded that the interim measure number 2 would not serve the purpose of protecting the subject matter of the dispute and that compliance by defendants and counterclaimants with interim measures numbers 1, 3, 4 and 5 would further render it unnecessary.

Accordingly . . . the Arbitral Tribunal entered an Order for Interim Measures of Protection as follows:

a. Claimant and defendants and counterclaimants numbers 2 to 9 shall deposit in trust, or cause to be deposited in trust, with such bank in Mexico as shall be agreed upon in writing by them or, in default of such agreement, with . . ., all of their shares in defendant and counterclaimant number 1. Such shares shall not be withdrawn or in any way transferred by Claimant and defendants and counterclaimants numbers 2 to 9 until and only in such manner and on such terms as they shall so agree in writing or, in default of such agreement, this Arbitral Tribunal shall finally so determine. Claimant and defendants and counterclaimants numbers 2 to 9 shall not permit such shares to become subject to any lien or encumbrance (hereinafter measure a).

b. Pending resolution of this arbitration, defendants and counterclaimants shall maintain the principal place of business of defendant and counterclaimant number 1 and its subsidiaries, and the books and records of those entities, in their respective current locations (hereinafter measure b).

c. Pending resolution of this arbitration, defendant and counterclaimant number 1 shall not purchase or sell its assets or permit its subsidiaries to purchase or sell their assets in excess of a total aggregate amount of US$ 500,000.00, unless Claimant and defendant and counterclaimant number 1 so agree in writing prior to any such transaction (hereinafter measure c).

d. Pending resolution of this arbitration, defendant and counterclaimants numbers 2 to 9 shall not cause defendant and counterclaimant number 1 or its subsidiaries to purchase or sell their assets in excess of a total aggregate amount of US$ 500,000.00, unless Claimant and defendants and counterclaimants numbers 2 to 9 so agree in writing prior to any such transaction (hereinafter measure d).

e. Pending resolution of this arbitration, defendant and counterclaimant number 1 shall not refinance its assets in excess of a total aggregate amount of US$ 500,000.00 over and above its present level of indebtedness, unless Claimant and defendant and counterclaimant number 1 so agree in writing prior to any such transaction (hereinafter measure e).

f. Pending resolution of this arbitration, defendant and counterclaimants numbers 2 to 9 shall not cause defendant and counterclaimant number 1 or its subsidiaries to refinance their assets in excess of a total aggregate amount of US$ 500,000.00 over above their present level of indebtedness, unless Claimant and defendants and counterclaimants numbers 2 to 9 so agree in writing prior to any such transaction (hereinafter measure f).

g. Pending resolution of this arbitration, defendants and counterclaimants numbers 2 to 7 shall provide Claimant's members in the Board of Directors of defendant and counterclaimant number 1 or its subsidiaries (hereinafter measure g):

i. copies in the ordinary course of business of all governmental filings by defendant and counterclaimant number 1 and its subsidiaries, and any publicly disseminated material relating to such entities;

ii monthly operating statements and financial reports of defendant and counterclaimant number 1 and its subsidiaries;

iii. at least 20 days prior to the closing of any proposed purchase, sale, exchange, refinance, or any other transaction not in the ordinary course of business, a statement: (1) disclosing the terms of the transaction; (2) any past or present relationship between any of the parties to the proposed transaction; (3) a detailed account of all proposed use of funds; and (4) copies of all documents showing the basis of any valuation involved in the transaction.

Shortly after the issuance of this Order for Interim Measures of Protection, the parties initiated negotiations for a trust agreement to comply with measure (a). . . .

Additionally, defendants and counterclaimants purported to comply with measure (g) by letters of . . . However, the parties also disagreed with regard to the sufficiency of the information to which Claimant's members of the Board of Directors were entitled under such measure. Claimant expressed its frustration with the quality and comprehensiveness of the information provided by defendants and counterclaimants by letters of . . .

On . . . the Arbitral Tribunal met with the Parties to better understand and resolve their differences regarding compliance with measures (a) and (g). At this meeting, agreement was reached to the satisfaction of both Parties as to the information to be provided by defendants and counterclaimants to Claimant under measure (g), and as to the terms of the trust agreement for the deposit of shares pursuant to measure (a).

As indicated above, the adoption of interim measures (a), (b), (c), (d), (e), (f) and (g) was justified to protect the subject matter of the dispute and to regulate the conduct of and the relations between the parties as partners in disagreement, pending resolution of their dispute. However, as a result of this award, ownership of [Defendant number 1] will be consolidated in one of the Parties and their partnership will be terminated. Accordingly, the Arbitral Tribunal finds that it is unnecessary for interim measure (a) to be confirmed in this award. However, measures (b), (c), (d), (e), (f) and (g) shall be maintained until such time as this award is fully complied with, or the Parties dispose otherwise by mutual agreement in writing.

. . .

Decision of the Arbitral Tribunal

Now therefore, based on the foregoing:

. . . the Arbitral Tribunal decides to confirm measures (b), (c), (d), (e), (f) and (g) of the Order for Interim Measures of Protection dated . . ., until such time as this award is fully complied with by the Parties, or until the Parties dispose otherwise by mutual agreement in writing.. . .'

1
'Claimant has stated its willingness to have the deposit order apply to its shares in defendant and counterclaimant number 1 . . .'

2
'However, Claimant has expressly accepted that the deposit order apply to its shares in defendant and counterclaimant number 1 as well . . .'

3
'Notwithstanding the Arbitral Tribunal's lack of formal power to enforce interim measures, this course of action is not uncommon (Holtzmann and Neuhaus ["A Guide to the UNCITRAL Model Law on International Commercial Arbitration. Legislative History and Commentary", Klumer, Deventer-Boston, 1994, p. 531] refer to a note of the UNCITRAL Secretariat to the effect that ". . . an arbitral tribunal [is] empowered to take a failure to obey an order for interim measures into account in its final decision, particularly in any assessment of damages." Other experts share this view: Ramos Méndez, F., "Arbitrage International et Mesures Conservatoires", 57 Revue de l'arbitrage 1985; the works of Bernardini ["The Powers of the Arbitrator", p. 27], Bond ["The Nature of Conservatory and Provisional Measures", p. 16], Parra ["The Practices and Experience of the ICSID", p. 41], Schwartz ["The Practices and Experience of the ICC Court", p. 59], in Conservatory and Provisional Measures in International Arbitration, ICC Publishing, 1993; Craig, Park and Paulsson, International Chamber of Commerce Arbitration, 1990, p. 416 and 417; and Lalive, Poudret and Reymond, Le droit de l'arbitrage interne et international en Suisse, 1989, p. 365).'

4
'"Final Report on Interim and Partial Awards", ICC International Court of Arbitration Bulletin, December 1990, p. 25.'

5
'Arbitrators are naturally reluctant to order measures that are contrary to mandatory provisions of the laws of the jurisdiction in which they are to be executed.'

6
'These passages were added to the ICC Rules in 1975.'

7
'Article 23(1) of the 1998 version of the ICC Rules makes this unequivocally explicit.'

8
'Schwartz (cit., p. 58) identified some 25 orders for interim measures in ICC cases over the last 15 years.'

9
'International Commercial Arbitration Act.'

10
'Article 1433 of the Commercial Code.'

11
'Both Ontario and Mexico have incorporated the UNCITRAL Model Law on International Commercial Arbitration (1985) into their legal systems.'

12
'An illustrative list of measures within the power of arbitrators included measures to preserve goods such as by depositing them with a neutral third person (see Holtzmann and Neuhaus, cit., pp. 530 and 531 and Ramos Méndez, cit., p. 62).'

13
'Bond, cit., p. 9; Knoepfler and Schweitzer, "Les mesures provisoires et l'arbitrage", 225 Receuil de Travaux Suisses 1984 (Reymond and Bucher ed.).'

14
'Defendants and counterclaimants also claim that clause . . . [buy/sell provision] of the Shareholders Agreement is null and void under Mexican law.'