Règlement d'arbitrage de la CCI de 1988

Art. 6, 8, 11, 29, 33, 35, 46, 50 CVIM

Le litige se rapportait à deux contrats ayant pour objet l'exportation de marchandises par le demandeur au défendeur. Le contrat n° 1 portait sur la vente de marchandises A dont la livraison était prévue en 1993/94. Le contrat n° 2 portait sur la vente de diverses marchandises énumérées en annexes, dont des marchandises B et des produits associés C, ainsi qu'une quantité supplémentaire de marchandises A. La livraison devait également avoir lieu en 1993/94. Par la suite, divers avenants furent conclus, modifiant certaines conditions de ces contrats. L'importation des marchandises était soumise à autorisation. Les licences d'importation que détenait le défendeur arrivaient à expiration au milieu de l'année 1994. Il insista donc auprès du demandeur pour que celui-ci lui expédie les marchandises avant cette date, ce qui se réalisa pour une partie seulement des marchandises. Le défendeur paya celles expédiées avant la date d'expiration des licences, mais se limita à un paiement partiel de celles expédiées par la suite, refusant tout nouveau paiement et demandant à ce que le montant restant dû soit compensé avec les dommages-intérêts qui, prétendait-il, lui étaient dus. Ces dommages-intérêts étaient présentés comme fondés sur la livraison de marchandises A non conformes, la non-expédition des marchandises C et le préjudice en résultant. En complément à la demande de paiement des montants dus aux termes des divers contrats conclus par les parties, le demandeur réclamait également le remboursement d'une pénalité mise à sa charge par l'administration des douanes de l'Etat d'exportation pour ne pas avoir crédité un compte en devises étrangères, comme l'exigeait la réglementation des exportations de cet Etat.

Le droit applicable

'For the Tribunal it is clear that, in the first instance, the contractual terms as agreed by the Parties in the framework of their contractual relationship shall be looked at and applied to determine the disputed issues. In case of ambiguity and to the extent necessary, contractual terms may have to be interpreted by the Tribunal.

In addition to the foregoing, the Tribunal has to have regard to the relevant usages of the trade, for two reasons: First, the Parties had specifically referred to the Incoterms 1990 . . . Second, trade usages are to be observed on the basis of Article 13 (5) ICC Rules (which Rules had been chosen by the Parties).

Matters or issues which had not been contractually agreed among the Parties and which cannot be determined by having regard to trade usage (including the Incoterms), will have to be determined on the basis of the 1980 Vienna Sales Convention ("CISG"), as correctly pleaded by both Parties.

. . .'

Sur le paiement des marchandises A - Les prétentions des parties

'Claimant maintains that it had completely fulfilled its obligations arising under Contract [no. 2] and its Additional Agreements . . . Although Claimant had submitted all the necessary documents to Respondent, Respondent did not adhere to the terms of payment as determined in the Additional Agreement 4. . . . Respondent only effected payments totalling . . . instead of the total amount of . . . owed pursuant to the Contract . . .

Respondent . . . justifies the withholding of two thirds of the purchase price by arguing that the goods delivered did not confirm to the contractual specification . . . As recipient of "non-conforming goods", Respondent refused to pay the full contract price in accordance with Article 50 CISG . . .

According to Respondent, Article 35(1) CISG requires a seller to deliver goods "[…] which are of the quantity, quality and description required by the contract [...]". Article 35 (2) CISG provides:

"Except where the parties have agreed otherwise, the goods do not conform with the contract unless they:

(a) […] (b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement; (c) possess the quality of the goods which the seller has held out to the buyer as a sample or model; […]."

In support of its argument of delivery of "non-conforming goods", Respondent alleges that during the course of negotiations of Contract [no. 1] and Contract [no. 2] Claimant continually represented to Respondent (i) that Claimant was controlling all exports of [goods A] and (ii) that Respondent would be the sole importer [in states Y and Z] and purchaser of such [goods] . . . Accordingly, Respondent maintains that those representations (sole exporter of [goods A] and exclusive buyer of [goods A]) became part of Contract [no. 2] between Claimant and Respondent . . .

Respondent explained that it decided to enter into the Contracts only because it saw an opportunity to become the sole importer and seller of surplus [goods A] in [state Y] and it was on such assumption that Respondent had been confident to make a profitable business out of it. In dealing with Claimant, Respondent therefore always stressed the importance to be the only distributor in . . . for unused surplus [goods A] . . .

Claimant, however, denies that it made any representation of exclusivity towards Respondent. . . .

Further, Claimant argues that Contract [no. 2] - apart from the fact that it does not contain any provision granting Respondent the exclusive right to purchase [goods A] - contains a "written modification clause" . . . and an "integration clause" . . . By inserting those clauses, the Parties specifically intended to exclude any and all oral alterations and amendments to the Contract [no. 2], and moreover intended that the written Contract should supersede any and all prior written or oral negotiations or agreements. Claimant asserts that the commitments of the Parties under the written contractual documents were neither modified nor amended by means of any exchanges of correspondence . . .

Claimant also rejects Respondent's argument of "non-conformity of the goods" by stating that the supplied [goods] had been supplied in strict compliance with the contractual documents. Accordingly, the alleged "exclusivity" has nothing to do with the quality of the goods. Thus, Respondent should be blamed for a continuous misinterpretation of Article 35 and Article 50 of CISG . . .

Regarding Respondent's allegation that the last shipment of [goods A] was effectuated late . . ., Claimant contends that it timely honoured the Contract . . .

Respondent accuses Claimant that - despite its promise to deal exclusively with Respondent - it had already concluded agreements with other [goods] dealers in [state Y] . . .

. . . Respondent confronted Claimant with the allegation that, despite Claimant's repeated assurances of granting an exclusive right to purchase [goods A], Claimant "flooded" the [state Y] market on a large-scale by sales of [goods]. By "flooding" the [state Y] market with [goods A], Claimant had not only infringed Respondent's right of exclusivity but at the same time was also responsible for deflating the market price of [goods A]. . . .

In addition to the foregoing, Respondent also counter-claims damages including lost profits in the amount of . . . The counter-claim is essentially based on the arguments (i) that [goods A] did not meet the particular purpose (pursuant to Article 35(1) CISG) for which Respondent purchased them, because they were not exclusive in [state Y] and (ii) that the [goods] did not possess the quality of goods which Claimant held out to Respondent as a sample or model. The samples or models of [goods A] were of an exclusive nature, whereas the [goods A] delivered to Respondent were not of an exclusive nature . . .

Respondent also states that the notification of delivery of non-conforming goods was made on 31 January 1995 and for a second time on 9 February 1995 . . . Respondent is of the opinion that it conformed with the requirement of notification of the non-conformity within a reasonable time after discovery . . .

Claimant rejects Respondent's allegations. Claimant maintains having executed the delivery of [goods A] in accordance with the terms specified in the contractual documents. . . .

Respondent further justified the withholding of a portion of the contract price for [goods A] on a different line of arguments: it alleged that Claimant delivered [goods B] but declined to deliver [goods C] as required by the Contract [no. 2] and its Annexes. On . . . Respondent's import permit for [goods C] expired. Thereafter, Respondent was prohibited from importing [goods C] into [state Y]

Respondent argues in its counter-claim that due to Claimant's failure to ship the [goods C] before [import licence expiry date], Respondent was compelled to have a custom-made substitute [product] manufactured . . .

In addition to the foregoing, Respondent alleges further that it should also be entitled to recover its actual damages and lost profits on [goods B] and [goods C] from Claimant. . . .

With respect to the non-delivery of [goods C], Respondent justifies the withholding of two thirds of the purchase price of [goods A] by the fact that [goods A], [goods B] and [goods C] are the subject-matters of the same Contract, and any damages of Respondent relating to the same contract may be taken into account for reducing the contract price pursuant to Article 50 CISG.

Claimant rejects any and all of those alleged damages and lost profits and calls them unfounded and not supported by any pieces of evidence . . .'

Les questions à résoudre

'The question whether Respondent correctly withheld two thirds of the total contract price . . . depends on the determination of the following issues:

1. Did the Parties contract for an exclusive right for Respondent to import [goods A from state X] in [state Y]? And: did Claimant or its predecessor represent that it would control all [state X] exports of [goods A] to the [state Y] market in the sense that it would see to it that no other [state X] firm would effectuate supplies to a [state Y] importer other than Respondent?

As a further subsidiary issue: Was Claimant's supply of [goods A] . . . late?

2. Was Claimant obliged to deliver [goods C] prior to [import licence expiry date]? If so, did Claimant satisfy its obligation when offering the shipment by air [a fortnight earlier]?'

La décision du tribunal concernant l'exclusivité

'. . .

Looking at the wording of the contractual documents and of the quoted provisions, nothing therein supports Respondent's position that the Parties had contracted for an exclusive right to market [goods A] in [state Y].

Nevertheless, Respondent maintains that - although not explicitly provided for in the contractual documents - Claimant orally represented to Respondent the right of exclusivity from the beginning of their negotiations, and inspired in Respondent the understanding that it would control all exports from [state X] of surplus [goods A] to other countries, in particular [state Y].

Further, Respondent also maintains that the right of exclusivity was not only represented to it orally but was moreover subsequently confirmed in writing, by the exchange of correspondence between the Parties. . . .

The crucial question to be determined by this Tribunal, therefore, is whether or not the Contract had to be understood as an exclusive contract . . .

In the first instance, the relevant Contract has to be looked at. It is clear that le contrat fait loi entre les parties. Respecting the unambiguous contractual terms agreed upon by both parties is, beyond any doubt, the basis of any international business and trade. The notion of pacta sunt servanda is reflected in any national law known to the present Arbitrators and is certainly reflected in the Vienna Convention . . . The obligation of each party to honour the contractual terms has its limits only in very exceptional circumstances, for instance where the freedom of the parties to themselves regulate the affairs is restricted through mandatory rules of law, or where an agreement violates public policy, or in the extremely rare situations where the contractual equilibrium became so seriously affected that the agreement has to be considered frustrated on the basis of clausula rebus sic stantibus (or similar motions [sic] as laid down in national legislations of civil law and common law countries). None of these exceptional situations is relevant in the present context.

In the instant case, two provisions are of paramount importance: First, the so called merger clause (sometimes called integration clause) and, second, the written modification clause. Both of them may be characterised as typical clauses, and there can be no doubt for any party engaged in international trade that the cluases mean, and must mean, what they say.

The merger clause makes sure that only the terms as reflected in the signed agreement will form part of the contractual obligations, thus excluding any extrinsic understandings, oral explanations, assurances or representations during prior negotiations which are not as such reflected in the written contract. Thus, by agreeing to a merger clause as part of a contract, the contractual parties clearly acknowledge, confirm and warrant for the benefit of each other that any and all prior discussions, negotiations, representations will be of no legal effect, unless they are directly reflected in the signed Contract. Prior discussions could thus only be relevant for interpretation purposes; however, this is not an issue in the present case.

In this context it seems helpful to refer to Article 8 (3) CISG which reads as follows:

"In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the Parties have established between themselves, usages and any subsequent conduct of the Parties."

This sub-paragraph is a part of Article 8 which is the only article in the Convention which deals with the interpretation of the statements of the Parties and their conduct. Article 8 as such provides for a broad scope of elements which may have to be taken into consideration when interpreting the intentions of contractual parties. Such a broad scope, however, can validly be excluded by a merger clause. This is so, because Article 6 CISG clearly provides that the parties are free to derogate from, or vary, the effect of any of the provisions contained in the Convention. The Commentary on the 1980 Vienna Sales Convention by Bianca and Bonell, ad Article 8, p. 102, 1987, states the following: "A merger clause is a clause that states that all of the agreements between the parties are integrated into their written agreement. It is primarily designed to prevent recourse to prior negotiations for the purpose of supplementing or modifying the writing". The Commentary further states that "… a tribunal should carefully scrutinize the language of any merger clause in an effort to read it as bearing evidence of negotiations only for the purposes of supplementing or modifying the writing, and not for the purpose of explaining the writing". Heinrich Honsell, Kommentar zum UN-Kaufrecht, 1996, ad Article 8 N. 4, states the following: "Article 8 ist grundsätzlich abdingbar. Die Parteien können daher vereinbaren, dass ein Vertragsinhalt ausschliesslich den schriftlich fixierten Text umfasst". In English translation: "The parties may validly exclude the application of Article 8 CISG. They, therefore, can agree that the content of a contract is exclusively reflected by the written text".

. . .

The written modification clause to which the present Parties have also explicitly agreed in the framework of the Contract (see Article 9.3) has the same effects as the merger clause with regard to any future negotiations, promises and any other extrinsic evidence which otherwise might be adduced for supplementing, altering or contradicting the written contract. The significance of the written modification clause is explained in Article 29 (2) CISG which reads as follows:

"A contract in writing which contains a provision requiring any modification or termination by agreement to be in writing may not be otherwise modified or terminated by agreement. However, a party may be precluded by his conduct from asserting such a provision to the extent that the other party has relied on that conduct."

The Commentary Bianca/Bonell ad Article 29, p. 242, explains that the parties' declared intention requiring a written document for any kind of modifications should prevail. "Thus, the parties' declared intention overrides the provision in Article 11 CISG that the contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. If the parties agree that modifications of the pre-existing contract or an agreement to terminate it must be in writing, then this requirement as to form has to be complied with".

The rule reflected in Article 29 (2) CISG does, under certain circumstances, allow an exception in those cases where the conduct of a party has justified the other party to rely on such a conduct. The kind of conduct which will lead to such preclusion is, however, not specified in the CISG. The Commentary Bianca/Bonell, on p. 243, gives an example. In the instant case, however, it is the Tribunal's opinion that there is no room whatsoever for applying the exception clause. The present Parties have agreed to the written requirement for any kind of modifications, and there is no evidence of a conduct which could be of a nature as to do away with that specific requirement.

. . .

The combination of the two discussed clauses, i.e. the merger clause reflected in Article 9.5 of the Contract and the written modification clause as per Article 9.3 of the Contract, make it almost impossible that, in the instant case, Respondent could rely on any kind of verbal promises or assurances, or any kind of written references which are not at the same time also reflected in an Amendment or Supplement to the Contract.

. . .

In the overall appreciation of the situation, the Tribunal also wishes to remark that, in its view, the granting of any exclusivity is an aspect of very considerable importance and implications for both Parties. . . . If exclusivity had indeed been contemplated by both Parties, then one would normally have expected the Parties to settle some further terms such as provisions regarding minimum quantities to be taken during specified periods of time, the duration of the Contract, conditions for granting or maintaining the exclusivity, and provisions for terminating the Contract. None of them are traceable in the Contract at issue. From this perspective, the Tribunal finds that, from the outset, a high threshold would in any event have to be met for satisfying the burden of sufficiently proving that exclusivity had indeed being [sic] agreed between the Parties. However, in the instant case, such a threshold of proof has unquestionably not been met.

Respondent has also made an argument that, due to overall promises of exclusivity, it had been induced to make the agreement with Claimant, and that without such promised exclusivity it would not have entered into the Contract. Thus, Respondent alleged that it became the victim of a material mistake and that it was well-founded to invalidate the Contract.

However, the Tribunal finds that such an argument is not meritorious. Respondent or its witnesses have explicitly affirmed that they had been told that exclusivity could not be reflected in the Contract to be signed. Respondent, not being a naïve novice in business, must therefore have known that it is, at best, left with an oral promise (if such promise had been given, which is in itself a matter that remained disputed, but needs no further exploration due to the irrelevance of this aspect).

The Tribunal therefore finds that Respondent has no legal basis to invalidate the Contract on the argument of misrepresentation, or on an argument of material mistake. However, even if such an argument would have to be considered, the outcome of the Tribunal decision would in no way be different because in any event Respondent had obtained deliveries which it did not pay as yet, and whether such payment is due as a contractual payment obligation or on the basis of unjust enrichment will not make much of a difference.

The Tribunal also wishes to remark in passing that the alleged breach of exclusivity could not be qualified as making the sold [goods A] "non-conforming goods" under the terms of Article 35 CISG. Respondent's argument fails on its legal grounds and for lack of proof.'

Sur la livraison des objets B et C

'Respondent invokes, by way of one of its counterclaims, that Claimant failed to perform its obligation to timely supply [goods C] and, consequently, counterclaims damages suffered as a consequence of such alleged breach.

The Contractual Parameters

Contract [no. 2] provides, in Article 1, that the goods as per Annex 2 were to be "effected in 1993-1994", on "CIF terms - port . . . - in accordance with Incoterms-1990" . . . As already discussed above, the Contract and its Amendments did not stipulate any more precise time or time frame within which the Claimant's deliveries were to be effectuated. . . .

As a starting point, the wording of the Contract, therefore, inspires the understanding that the seller (Claimant) could properly discharge its duty to deliver the goods up to 31 December 1994, without being in default under the terms of the Contact.

The Incoterms 1990 (ICC Publication 460), as explicitly referenced in the Contract, provide for a set of international rules for the interpretation of the most commonly used trade terms in international contracts. Contrary to the term FOB (Free on Board), which indicates that the buyer may choose the date of delivery within the agreed period because the buyer itself has to arrange the carriage of the goods, a CIF-clause (Cost, Insurance, Freight) is generally not intended to authorize the buyer to determine the appropriate date of shipment. Under a CIF-clause the seller is entitled to choose the time of performance, as long as such performance is effected "on the date or within the period stipulated" in the contract (Incoterms 1990, pp. 150-155 on CIF, Clause A.4.), and the buyer must "accept delivery of the goods when they have been delivered in accordance with A.4. and receive them from the carrier at the named port of destination".

It should also be noted that the CIF-clause does not make a distinction between a relatively short delivery period, such as e.g. two weeks, and a long delivery period, such as the two years as per the relevant Contract, in the sense that the delivery date should be at seller's option only in the first instance, whereas in the second instance of a long delivery period the option to choose the date would rather shift over the the [sic] the buyer.

The Contract does not contain a reversed provision in the sense that, contrary to A.4. of the Incoterms, buyer would be entitled to determine or speciify the time for shipping the goods, for instance in the sense that, during 1993/1994, Respondent had the right or option to call the delivery of the goods which then would have to be delivered by Claimant forthwith, or within a certain time frame. Absent such a clause reversing the effects of the Incoterms, the right to choose the date of delivery remained entirely with Claimant, and Claimant could validly elect, for instance, to ship the goods in the second part of December 1994.

Moreover, according to Article 33(b) CISG, the seller must deliver the goods:

"if a period of time is fixed by or determinable from the contract, at any time within that period unless circumstances indicate that the buyer is to choose a date."

The cited CISG provision makes it clear that if the parties agree on a period of time as the time of performance, it is, in general, the seller who is to choose the time of delivery. The seller's obligation of performance must occur by the end of the period agreed upon; but otherwise, the seller can discharge his obligation at any time during that period, without being in default.

However, Respondent invokes that Claimant had been under an obligation to effectuate the delivery of [goods C] prior to . . . when its [state Y] import licence expired. In support of such argument Respondent referred to various letters and telexes . . .

The Tribunal thus needs to examine that further correspondence and communications exchanged between the Parties in order to determine whether, during the life of the Contract, a mutual agreement had been reached to accelerate the delivery terms within the time-frame running from 1 January 1993 until 31 December 1994.

. . .

The Tribunal's Analysis

Reviewing this correspondence, the Tribunal (more precisely; the Majority of the Arbitrators) has to conclude that, although both Parties explored ways and means to accelerate the deliveries, Claimant never confirmed in a legally binding manner that it shall effectuate the delivery of [goods C] prior to [import licence expiry date]. Such a confirmation would have necessitated a mutual consent on essentials (such as the pricing of the transportation costs by air-shipment and their securing by either Party) so as to amend the Contract and to substitute the new terms for the initial provisions (as contained in the Contract). . . .

One Arbitrator (the "Dissenting Arbitrator") has voiced a different opinion in the sense that Claimant was bound to effectuate the delivery of [goods C] prior to the expiry of the [state Y] import licence . . . He basically argues that, based on Respondent's letter of . . ., an agreement between the Parties had been reached in the sense that the deliveries were to be effectuated by Claimant by end of May/beginning of June 1994. His argument goes further in the sense that Claimant, by shipping [goods B] at or around that time, should also contemporaneously have shipped [goods C] because, as he argues, [goods B] and [goods C] formed an unseparable [sic] package and could not be dissociated from each other . . . The subsequent correspondence is, in his view, to be seen under the perspectives of Article 46 (1) CISG, i.e. as a request for subsequent proper performance. As a subsidiary line of arguments he says that, even if the two items should not be seen as one single package, he would reach the same conclusion because he would then intepret the delivery clause contained in the Contract rather in the sense that buyer (here: Respondent) was to be given the right to choose the time of delivery, and not Claimant . . . In his view it would be "incompatible with the principles of good faith to allow the Seller to remain at liberty to determine the time of delivery .….." . . . He also says that there was no apparent reason why Claimant should not have accommodated Respondent to effectuate the shipment of [goods C] prior to the expiry of the [state Y] import licence, "unless it did not have [goods C] which it had undertaken to deliver and failed to disclose this fact to the Respondent" . . . Finally the Dissenting Arbitrator expressed the view that it must have been apparent to Claimant that the delivery of [goods B] was useless for Respondent unless it also received the pertaining [goods C]; having shipped [goods B] by early June 1994, Claimant was no longer at liberty to delay or withhold the shipment of [goods C]. As a result, the Dissenting Arbitrator concludes that Respondent's counterclaim connected to the costs for manufacturing a substitute [product] in an amount of . . . was justified and should be allowed as partial set-off against Claimant's claims . . .

The Majority Arbitrators do see and fully acknowledge the merits of the opinion as expressed by the Dissenting Arbitrator, and they fully understand his argument. However, they differ as regards the starting point, i.e. when he concludes that there had been a mutual agreement between the Parties that the deliveries should occur end of May / beginning of June 1994. The fact is that, from the evidence available to the Tribunal, such an agreement had not really been reached, absent an explicit confirmation by Claimant in respect of the schedule as it was proposed by Respondent in its letter of . . .

Further, it is certainly very reasonable to argue, as the Dissenting Arbitrator does, that [goods B] (requiring the use of [goods C]) would seem to be of little commercial use unless [goods C] would also be available. However, the essential legal question is whether the "reasonableness" of such approach in fact matured to the level of an inseparability of performance under the terms of the Contract.

. . . the Parties have, however, failed to establish a clear contractual link between any of the items listed in Annex 2, and in particular in respect of the supply of [goods B] and [goods C]. . . .

If the Parties had intended to condition the supply of [goods B] upon the simultaneous supply of [goods C], then the Parties (in particular Respondent) should have said so in the framework of the Contract. They did not, and it would seem to stretch the notion of contract-interpretation a little too far to now argue that the two items were necessarily linked as far as the time-period for delivery is concerned. It is the view of the Majority Arbitrators that the Arbitral Tribunal cannot go so far as to read into the Contract a provision or condition which does not exist, or to subsititute a perhaps more reasonable provision for those contained in the Contract, or to remove Respondent's risk to receive some of the items (as per Annex 2) already in early 1993, whereas other items might be delivered by Claimant as late as in December 1994.

It may be added that, from the correspondence submitted to the Tribunal, it also appears that the delivery of the various items should occur (within the contractual period of time, i.e. 1993/94) on the basis of their availability. . . . In any event, the Contract does not provide for a representation or warranty, expressed by Seller (Claimant), in the sense that the goods to be shipped to Respondent would be readily available during the entire time-window 1993/94, so to speak "on call", or on short notice.

Having said this, the Majority Arbitrators are likewise not convinced of the Dissenting Arbitrator's subsidiary argument that, in the instant case and having regard to the long time-frame of two years, it was rather intended between the Parties "that the Buyer should choose the time of delivery where it is obvious that the Buyer wished to order in accordance with his own requirements" . . . The very premise of this argument, i.e. the obviousness that the Buyer's requirements should prevail, has in no way been established in the framework of the present arbitration; quite the contrary could also be true, i.e. that the shipment should occur when the goods became available to Claimant and became cleared for exportation. If indeed the Contract should be understood, or was meant to be understood, in the sense that Respondent, within the time-frame 1993/94, should be in the "driver's seat" to call the deliveries it intends to import into [state Y] or [state Z], then the Contract should have said so in some fashion; however, it did not. Thus, the CIF delivery term must, in the view of the Majority Arbitrators, be given the meaning it has among merchants, and Article 33 (b) CISG cannot be reversed.

. . . In the absence of a mutual agreement . . ., the Majority Arbitrators must reach the conclusion that Claimant had the right to exhaust the time window as it had been contractually agreed, and this means that Claimant had a right to timely deliver the items as per Annex 2 until 31 December 1994, and not only until [import licence expiry date].

The Majority Arbitrators also remark that Respondent could have negotiated the Contract on the basis that the delivery would be conditional upon the availability of [state Y] import permission, and that Respondent would have the right to call the delivery within the time-window of the import permit. However, Respondent did not conclude the Contract on such a basis. In fact, it entered into a quite different contractual arrangement, and it is clearly for Respondent to bear the commercial risks associated therewith. Those risks were by the way quite obvious, and must have been obvious to Respondent (as a highly sophisticated buyer in this trade) when entering into the Contract(s). Respondent might have underestimated the risk that the import licence (which apparently is issued for a period of 12 months) could ultimately not be renewed or remain valid during the entire delivery time of "1993/94". However, it would neither seem fair not contractually tenable to now shift the risk and responsibility over to Claimant for something which clearly fell into Respondent's risk sphere (and moreover contractual duty), or to interpret into the Contract a link which is not there, i.e. the link that deliveries were to be timed so as to come within the term of [state Y] import licences.'

Sur le remboursement de la pénalité mise à la charge du demandeur

'Claimant's Allegations

Claimant claims the payment of . . . representing the pecuniary penalty imposed on Claimant by [the customs authority for failure to credit appropriate foreign currency account with foreign exchange earnings from exported goods within 180 days]. . . .

By the middle of 1995, Claimant had only credited the amount of . . . to the specified currency account held with the designated bank. Because Respondent withheld the remaining portion of the contract price, Claimant failed to credit the outstanding sum of . . . within the time frame of 180 days. The failure to comply with [state X] legislation resulted finally in a pecuniary penalty of . . . imposed on Claimant by the [customs authority].

. . . Claimant takes the position that its payment or debt vis-à-vis the customs department is recoverable from, and must be compensated by, Respondent.

Respondent's Allegations

Respondent argues that it cannot be held responsible for the pecuniary penalty imposed on Claimant by the . . . Customs department.

Respondent acknowledges that Claimant was unable to deposit on the designated bank account the unpaid portion of the contract price. However, Respondent maintains that it was entitled to withhold the outstanding contract price because Claimant did not comply with its contractual obligations . . .

The Tribunal's Determination

It is the clear view of this Tribunal that Respondent should not be held responsible for the internal working of the customs and fiscal system and of its effects on Claimant. Clearly, the CISG (of which [state X] is a signatory) provides for the right to withhold the contract price, if the merchandise does not conform to the contractual obligations, and it is for the present Tribunal to determine whether or not the withholding was meritorious.

It should also be taken into consideration that Claimant itself agreed to a change of the payment mode as stipulated in Contract [no. 2]. In Additional Agreement 4 the initial payment by letter of credit was changed to a payment by bank transfer against a made-out invoice and supporting cargo documents for the goods delivered. Thus, by mutually waiving Respondent's obligation to pay by letter of credit, Claimant itself waived a method which would have assured a prompt payment (by L/C), but instead agreed to a payment method with an in-built risk of late payment beyond 180 days. One might also argue that Claimant should in any event have drawn Respondent's attention to the danger of incurring such a penalty under [state X] customs laws, possibly with an indication that Claimant would seek reimbursement from Respondent if the payment was not made promptly.

Finally, Claimant has not produced any evidence of actual and definitive payment and enforcement of the pecuniary penalty.

Conclusions:

To conclude on this aspect, the Tribunal has to state that

• Respondent is not responsible or liable as far as the penalty proceedings are concerned, and Claimant's claim for a reimbursement of . . . as consequential damages for withholding the balance of the contract price must be dismissed.'