Les parties conclurent des contrats stipulant la distribution exclusive par le demandeur en Côte d'Ivoire de véhicules à moteur fournis par le défendeur, un joint-venture réunissant des capitaux d'origines britannique et japonaise. Des difficultés surgissaient dans l'exécution de ces contrats, parmi lesquelles le désaccord sur les tarifs et le défaut d'exécution par le demandeur de ses obligations de paiement dans les délais impartis. Les relations des parties se détérioraient rapidement, conduisant le défendeur à résilier les contrats, en alléguant un grand nombre de manquements. Le demandeur déposa une demande d'arbitrage, invoquant l'absence de fondement de la résiliation prononcée par le défendeur ainsi que l'inexécution de bonne foi par le défendeur de ses obligations contractuelles et un manque général de coopération. Le défendeur conteste ces allégations, accusant le demandeur de mauvaise foi, d'hostilité et d'une attitude non coopérative. La loi ivoirienne, tout comme les usages du commerce international, tels qu'ils sont exprimés par les <b>Principes d'Unidroit</b> (article 5.3), imposent que les contrats soient exécutés de bonne foi. Dans ce contexte, le tribunal arbitral juge que la résiliation est intervenue abusivement et ordonne au défendeur d'indemniser le demandeur. Il ordonne en outre au demandeur de payer au défendeur le montant impayé dont il est redevable. Chaque partie ayant contribué à la complexité de la procédure d'arbitrage, le tribunal arbitral décide que chaque partie prendra en charge la moitié des frais de l'arbitrage.

<i>Sur la bonne foi des parties :</i>

'As stated in clause 1.2 of the Dealer Agreement and clause 13.1 of the Supplementary Agreement . . ., the law governing the Agreements and their interpretation is the law of the Republic of the Ivory Coast.

Thus, according to Article 13(3) of the ICC Rules, the Arbitral Tribunal must apply the laws of the Ivory Coast in order to decide the merits of this dispute.

Pursuant to Article 13(5) of the ICC Rules, the Arbitral Tribunal shall also take into account the provisions of the contract and the relevant trade usages. In doing so, the Arbitral Tribunal will pay particular attention to the specific nature of the Agreements and to the context within which they were entered into. As requested by Article 1156 of the Civil Code of the Ivory Coast, the Arbitral Tribunal will look for the real intent of the parties and not only the literal wording of the Agreements.

Article 1134 para. 3 of the Ivorian Civil Code stresses that contracts must be performed in good faith. Furthermore, Article 1135 of the same code recalls that a contract binds the parties not only according to its wording, but also to the consequences thereof resulting from equity, custom and the law. In a contractual relationship which is the extension in time of previous relations between a Japanese Group and an Ivorian Group, constitutes the result of negotiations between English, Japanese and Ivorian parties and deals with the distribution in the Ivory Coast of Japanese products, the custom to be taken into consideration by the Arbitral Tribunal within the framework of Article 1135 of the Ivorian Civil Code is to be found within the usages of international trade.

One consequence of the principle recalled by Article 1134 para. 3 of the Ivorian Civil Code, according to which contracts must be performed in good faith, is that the parties must cooperate in good faith to reach the common goals contractually agreed upon. It is on the basis of the identical text of Article 1134 para. 3 of the French Civil Code that French courts have decided that good faith and loyalty oblige a party to a contract to facilitate the performance of its obligation by the other party. . . . Indeed, as written years ago by the French lawyer Demogue: "les contrats forment une sorte de microcosme (...) une petite société où chacun doit travailler dans un but commun, qui est la somme des buts individuels, poursuivis par chacun, absolument comme dans la société civile ou commerciale" (R. Demogue, Traité des Obligations, 1927, [Vol.] IV, p. 191). Such obligation to cooperate in good faith in the performance of the contract has also become a fundamental element of the usages of international trade applicable to this case through Article 1135 of the Ivorian Civil Code and Article 13(5) of the ICC Rules. Such usage was pointed out by several awards rendered under the aegis of the International Court of Arbitration of the ICC. . . .

Further to a comparative study, Unidroit came to the conclusion that the obligation to cooperate in good faith in the performance of a contract amounted to a general principle applicable to international trade. Accordingly, this principle was reflected under Article 5.3 of the Unidroit Principles of International Commercial Contracts: "Each party shall cooperate with the other party when such cooperation may reasonably be expected for the performance of that party's obligations."

In conclusion, the Arbitral Tribunal will make its decision on the validity of the termination of the Agreement on the basis of the text thereof, in the light of the law of the Ivory Coast which requires good faith in the performance of contracts, such requirement also deriving from the usages of international trade.

Clause 6.2 of the Dealer Agreement and Clause 11.2.3 of the Supplementary Agreement authorized Respondent to terminate the Agreements, inter alia, in case of failure by Claimant to make any payment due to it by the due date, or for "serious breach" of Claimant's obligations. . . .

According to Clause 6.2 of the Dealer Agreement, a breach of Claimant "shall be deemed serious if during the previous two years the Dealer . . . has received two or more warnings for breaches of the same obligations or three or more such warnings for any breaches".

On the basis of the evidence submitted by both parties, the Arbitral Tribunal is convinced that a number of the breaches relied upon by Respondent took place.

. . . Clause 6.2 of the Dealer Agreement does convey the conclusion that, when the parties entered into the Agreements, their real intention, to which the Arbitral Tribunal must give particular relevance pursuant to Article 1156 of the Civil Code of the Ivory Coast, was that, even if the Dealer was in breach of his contractual obligations, many breaches, even repeated, would not be considered as serious breaches allowing termination before the expiry of a period of two years.

Such a contractual approach was reasonable, as the relations between a distributor of vehicles and a dealer require a close cooperation and an adaptation period. . . .

The existence of such an adaptation period was perfectly understandable and normal since the parties had decided to create a new structure in the frame of an already existing long relationship, in which, as Respondent knew, Claimant had not scrupulously complied with its contractual obligations.

Consequently, Claimant's breaches allegedly occurring within ten months after the signature of the Agreements and presented by Respondent as "serious breaches" cannot be so characterized under the Agreements and, thus, even if their occurrence were ascertained, they could not be a valid ground for termination of the Agreements by Respondent. . . .

Contrary to the "serious breaches" as defined by the Agreements, delays in payment by the Dealer allowed Respondent, according to the Agreement, to terminate immediately the Agreement.

However, the exercise of such a contracting right was available only if this breach of Claimant was indiscutably [sic] established, if it was not caused by other breaches on the part of Respondent and if Respondent did not exercise its right abusively. . . .

It appears from the facts of the case that, by its general behaviour, Respondent did not cooperate with Claimant in a way which would have allowed Claimant to strictly comply with all of its obligations. . . .

Therefore, the Arbitral Tribunal considers that Claimant's delays as regards payments were not clearly established as Claimant's defaults, as they were caused, in part, by Respondent's behaviour. . . .

Therefore, under the above-mentioned circumstances, where there was no certainty that Claimant was in breach of its obligations of payment, where the real intent of the parties was that no termination would take place before two years of the life of the Agreements in most of the cases of breach and where Claimant's breaches were largely caused by Respondent's attitude and by the latter's breach of its duty to cooperate, the Arbitral Tribunal decides that the termination of the Agreements by Respondent was not justified and, therefore, abusive.'