Version du Règlement : 1988

Demandeur : revendeur de véhicules (Côte d'Ivoire)

Défendeur : importeur et distributeur de véhicules (Côte d'Ivoire)

Le litige se rapporte à la modification des conditions selon lesquelles une marque d'automobile était distribuée en Côte-d'Ivoire. Le défendeur, une entreprise commune dont une partie du capital était détenue par le fabricant du véhicule, avait été constitué pour prendre la place du demandeur en qualité de distributeur. Ce dernier devait avoir un nouveau statut de distributeur-revendeur. Des contrats furent conclus entre les parties, aux termes desquels le demandeur se voyait octroyer un droit exclusif d'acheter, de revendre et d'assurer le service après-vente des automobiles et le défendeur un droit exclusif de distribution. Les contrats furent conclus pour une période initiale de trois ans, renouvelables pour des périodes d'un an, sans préjudice des droits de résiliation des parties. L'exécution de ces contrats engendra des difficultés se rapportant notamment aux prix, aux paiements tardifs et à la location de véhicules. Les relations entre les parties se détériorèrent : le défendeur accusant le demandeur de nombreux manquements aux contrats et finissant par en annoncer la résiliation. Le demandeur déposa une demande d'arbitrage, alléguant à son tour des manquements aux contrats par le défendeur et concluant que la résiliation par celui-ci des contrats était abusive. Il chercha par la suite à retirer ses demandes, afin d'en introduire de nouvelles non seulement contre le défendeur, mais également contre une société nouvellement constituée par le groupe auquel appartenait le défendeur et destinée à intervenir comme nouveau revendeur (société X). La procédure se poursuivit néanmoins et conduisit à un jugement selon lequel la résiliation des contrats par le défendeur était injustifiée. Le tribunal arbitral décida que, puisque les parties avaient contribué toutes deux à la complication de l'arbitrage, son coût devait être réparti à égalité entre elles.

Récapitulation des procédures devant les juridictions étatiques :

'Claimant had made various payments for an amount of more than 2.5 billion FCFA. . . . Claimant sent Defendant two requests for delivery of a global number of 226 new vehicles. Since Defendant refused to release these vehicles, Claimant applied . . . to the First Instance Court of Abidjan (Tribunal de Première Instance), seeking interim relief for delivery of these 226 vehicles. . . . [T]he juge des référés of the First Instance Court of Abidjan granted it. In default of such delivery, an astreinte of 5 million FCFA per day would be levied.

Defendant released . . . 84 of the 226 vehicles requested by Claimant.

The Court of Appeal . . . rejected Defendant's appeal and increased the astreinte to 50,000,000 FCFA per day. Between the date of the First Instance judgement and the Court of Appeal decision, Defendant obtained an order staying enforcement so that no astreinte ran for that period. Defendant filed a recourse with the Cour de Cassation against the decision . . . of the Court of Appeal. Defendant's recourse was rejected by a decision of the Cour de Cassation . . . Claimant seized 136 among the 142 (226 minus 84) remaining vehicles it was entitled to receive pursuant to the Court of Appeal order. The six missing vehicles were supplied to Claimant . . . but Claimant rejected four of them alleging that they had been already used and damaged by Defendant.

Considering that Defendant had not fully complied with the Court of Appeal decision, since four of the 226 vehicles on its list were not new, Claimant applied . . . to the Abidjan Court of First Instance for an order which would entitle it to liquidate the astreinte for the whole period from service of the First Instance Judgement on . . . until . . ., and for the full amount of the astreinte as set by the First Instance Court and the Court of Appeal respectively. On . . . Claimant had applied to the First Instance Court of Abidjan for an order for a saisie arrêt (impounding order) of vehicles and spare parts belonging to Defendant, as security for its payment of the astreinte. The saisie arrêt was granted . . . As a result, 401 vehicles and 92 parcels of parts were blocked in [a forwarding agent's] hands as security for the astreinte. The proceedings relating to the liquidation of the astreinte and the validity of the impounding order were joined, and the First Instance Court of Abidjan liquidated . . . the astreinte due to Claimant to an amount of 3,980,000,000 FCFA. . . . Defendant appealed against this decision. On . . . the President of the Abidjan Court of Appeal suspended the enforcement of the . . . decision. . . . [T]he Court of Appeal of Abidjan, whilst rejecting the objections on jurisdiction raised by Defendant, upheld however Defendant's appeal against the order obtained by Claimant liquidating the astreinte, assessed the astreinte payable by Defendant to be nil and lifted the order impounding Defendant's assets. . . . Claimant filed a recourse against this decision of the Court of Appeal with the Cour de Cassation of the Ivory Coast.

[Company X], the new dealer appointed by Defendant, which had acquired from Defendant the vehicles and spare parts that had been the object of the impounding order, requested . . . the Court of Appeal of Abidjan to order [the forwarding agent] which had executed the impounding order to comply with [Company X's] orders of transit following the lifting of the impounding order. . . . [T]he Court of Appeal of Abidjan in an audience de référé recognized that [Company X] was the legitimate owner of the assets of Defendant that had been impounded, and ordered [the forwarding agent] to comply with [Company X's] orders of transit. Claimant appealed against this decision to the President of the Cour de Cassation of Abidjan who temporarily suspended this decision . . . and authorized Claimant to summon Defendant to the audience of . . . to rule on the . . . decision of the Court of Appeal of Abidjan.

. . . Defendant obtained from the First Instance Court of Abidjan an attachment order (saisie conservatoire) against the assets of Claimant, and especially its . . . vehicles, for an amount of . . . Invoking its fear that Claimant would transfer its assets to two companies . . . which were incorporated by Claimant's majority shareholder and which are located in Claimant's premises, Defendant obtained on the same date and from the same Tribunal two attachment orders (saisies conservatoires) against the assets of these companies for the same amount of . . . [T]he President of the First Instance Court of Abidjan suspended the execution of these saisies conservatoires and authorised Claimant to summon Defendant to the audience of . . . to rule on its request for lifting of these saisies conservatoires.

The Arbitral Tribunal has not been notified by the parties of any further event relating to the proceedings in the Ivory Coast since.'

Demandes des parties :

Le demandeur demanda entre autres la mesure conservatoire suivante :

'"Alternatively, should the Arbitral Tribunal consider that Claimant's claims are maintained in the present arbitration, Claimant requests the following relief from the Arbitral Tribunal:

As a conservatory measure:

given Defendant's and [Defendant's group's] fraudulent manoeuvres to strip Defendant of its assets through [Company X], order Defendant to deposit the sum as stated at para. . . . of Claimant's Reply as a guaranty for the payment of any sum which might be awarded to Claimant by the Arbitral Tribunal . . ."'

Le demandeur sollicita également du tribunal arbitral :

'"a finding that Claimant did not breach the arbitration agreement in applying for interim measures to the Court of the Ivory Coast in accordance with Article 8(5) of the ICC Rules ;

a finding that Defendant abusively refused to comply with the decisions of the Abidjan First Instance Court and of the Abidjan Court of Appeals until it was forced to do so by the Police by order of the Abidjan Public Prosecutor . . ."'

Le défendeur, parmi d'autres demandes, sollicita du tribunal arbitral la décision suivante :

'"In breach of the provisions of the Agreements relating to the resolution of disputes between the parties, the Claimant has wrongly and abusively made applications to the Courts of the Ivory Coast, purportedly to seek redress for alleged breaches of the Agreements by the Defendant, but in reality as a tool in its hostile and abusive campaign against the Defendant to harm its reputation, to disrupt its business, and potentially drive it into liquidation.

. . .

In addition and as a consequence of Claimant's abusive and wrongful applications to the Courts of the Ivory Coast, the Defendant will also seek the interim order detailed . . . below to preserve the status quo pending a final determination by the Arbitral Tribunal.

. . .

An award of damages arising from Claimant's applications to the courts of the Ivory Coast. These Claims are set out at paragraphs . . . of the Answer and Counterclaim (inclusive). In addition to these claims, the Defendant will seek the following additional awards from the Arbitral Tribunal:

An indemnity and/or damages and/or an order for reimbursement from the Claimant in respect of all penalties, fines or other liabilities, arising as result of awards, orders and/or directions made against the Defendant as a consequence of the Claimant's abusive and wrongful applications to the courts of the Ivory Coast in respect of the subject matter of this dispute and all related proceedings. Without limitation to this claim, the Defendant will seek damages and/or an Order for the reimbursement of any amounts it is ordered to pay to the Claimant by the Courts of the Ivory Coast in respect of the four vehicles the Claimant has purported to reject as being vehicles to which it is entitled under the Orders made by the local Courts relating to the seizure of vehicles, and by reason of this rejection, has sought to complain that the Defendant has failed to comply with the Orders made by the local Courts in the Ivory Coast. For the avoidance of doubt, the Defendant maintains that the Claimant wrongfully and abusively obtained such Court Orders and was not entitled to them for reasons given in the Answer and Counterclaim. However, the Defendant believes that the allegation made by the Claimant on the basis of its rejection of these four vehicles, that the Defendant has failed to comply with the Orders made against it is symbolic of its bad faith and abusive acts with regard to the Defendant in the Ivory Coast, not only on the basis that it was in breach of the agreements to refer disputes to arbitration, but also on the basis that there was no justification, under the Agreements or at all, for the Claimant's purported rejection of the said vehicles once it had taken possession of them . . .

The Defendant repeats and adopts its claims set out in . . . the Answer and Counterclaim and in addition to such claims and the new claims set out above will also seek, as detailed below, an Interim Order of the Tribunal arising from the abusive and wrongful activities of the Claimant in the Ivory Coast.

There have been, in summary, the following developments in the various Ivory Coast proceedings since the Defendant's description of them at paragraphs . . . of its Answer and Counterclaim:

• On . . . the Cour de Cassation of the Ivory Coast, without yet giving any reasons, rejected the objections of the Defendant to the earlier Court of Appeal decision and . . . confirmed that the Claimant was entitled to all the vehicles seized by the Claimant pursuant to its original application (granted by the Court of First Instance by interim order . . . and confirmed by the Court of Appeal . . .). The Defendant maintains that such seizure was wrongful and abusive.

• The two actions subsequently commenced by Claimant on the basis of purported non-compliance by the Defendant with the interim orders described above (for further seizure of vehicles and for liquidation of the fine (astreinte) imposed by the Court of First Instance and Court of Appeal) have been consolidated but there has not yet been a full hearing and a ruling by the Abidjan Court of First Instance, Seventh Chamber.

• At a procedural hearing on . . . that Court ordered the Claimant to lodge documents by . . . The Defendant has been ordered to make submissions on . . . It is understood that there will be a response from Claimant and a decision from the Court shortly thereafter.

In the meantime, as explained in the Answer and Counterclaim 401 vehicles and spare parts with a value of . . . are frozen in storage compounds and, if the Court holds that Defendant is in breach of the earlier court orders in failing to supply vehicles in timely fashion or in an appropriate state, then fines may be imposed and payments become due by the Defendant to the Claimant . . .

The Defendant denies that there was late or any non-compliance and maintains that the effect of freezing the vehicles and the size of the potential fine are wholly disproportionate to any theoretical loss to Claimant resulting from any late or non-compliance with the original court orders and is, of course, so arguing before the Court.

Defendant submits, however, that now that the arbitrators are seized of the file, it is no longer appropriate, as a matter of principle, for Claimant to persist with such or any applications to the local courts. As the Claimant itself confirms in its pleadings . . ., its applications were only made for temporary relief pursuant to Article 8.5 of the ICC rules. The Arbitral Tribunal will rule on the merits of the underlying disputes and now that it is seized of the matter, it has the power to order additional interim relief, if necessary.

Defendant will therefore request as a matter of urgency that the arbitrators make an interim order that neither of the parties take further steps in the said actions, either to liquidate the fines or otherwise and that the parties agree to postpone the same until after the arbitrators make their award. The effect of such an order by the arbitrators would be that the relevant vehicles and parts would remain frozen, as security for the Claimant's alleged damage and the status quo would thus be maintained until the arbitrators had ruled on the merits of the underlying disputes. . . ."'

Ordonnances procédurales relatives à des mesures provisoires et conservatoires :

Ordonnance procédurale n° 1

'"At the hearing held . . . during which the Terms of Reference were discussed and signed, the Arbitral Tribunal decided, in accordance with the parties, that the request of the Claimant concerning the withdrawal of its claim, as well as the request of the Defendant of an interim order that neither of the parties take further steps in the actions or as a result of the actions before the Courts of the Ivory Coast, would be the two preliminary questions to be solved rapidly.

The parties agreed that these two matters would be settled by procedural order(s) to be incorporated later on in an arbitral award. . . ."

. . .

By letter of . . . the Defendant, noted that no provision was made in Procedural Order no. 1 for determination by the Arbitral Tribunal of Defendant's application for the interim order, and requested the Arbitral Tribunal to give its decision upon this matter . . . at the same time as its decision in respect of the Claimant's application for the withdrawal of its claim. The Arbitral Tribunal answered by letter . . ., reminding of the terms of Procedural Order no. 1 and indicating that its decision on the withdrawal of the claim and on the interim measures would not be communicated to the parties at the same time, although it would do its best efforts to decide the second question within the shortest possible period.'

Ordonnance procédurale n° 2

'. . . Defendant informed the Arbitral Tribunal that Claimant apparently intended to artificially accelerate the proceedings before the Ivory Coast Courts, since as a result of Claimant's insistence, the matter should have come before the judge again on . . ., the day before the hearing planned by the Arbitral Tribunal. Consequently, Defendant asked Claimant to confirm that it had no intention to request the Ivory Coast judge to issue a judgement on . . ., and indicated that, failing such confirmation of the Claimant, it would have to seek from the Arbitral Tribunal an urgent temporary order.

. . . Claimant answered that, in its opinion, the action pending before the Abidjan First Instance Court should proceed and that the arbitrators had no power to make the order requested by the Defendant. The Claimant added that it had not attempted to "artificially" accelerate the judicial proceedings in the Ivory Coast, and that Defendant's comments must be disregarded by the Arbitral Tribunal as they constituted an abusive attempt to force the Arbitral Tribunal to make an immediate order.

. . . Defendant indicated that the effect of the Ivory Coast Court decision might be the liquidation of a fine and possible forced sale of vehicles and parts worth over 9 billion FCFA when Claimant only complained as to the supply of four vehicles worth no more than $ 80,000. Consequently, due to Claimant's answer . . ., Defendant required the Arbitral Tribunal to make an immediate interim order to compel the Claimant to agree with Defendant to adjourn the Ivory Coast proceedings until after the Arbitrators' ruling on the Defendant's application for an interim order.

. . . [T]he Arbitral Tribunal stated in Procedural Order no. 2 . . . that:

"[It] has no authority to interfere with proceedings before State courts.

However, the Arbitral Tribunal urges both parties to refrain from taking any steps that may deprive of any purpose the Arbitral Tribunal's decision to be rendered following the hearing to be held on . . .

In addition, the Arbitral Tribunal authorises both parties to inform the Abidjan First Instance Court of the present Order".

Each party submitted in time, according to Procedural Order no. 1, its memorials and answers concerning the withdrawal of Claimant's claim and Defendant's application for an interim order.'

Ordonnance procédurale n° 3

' Procedural Order no. 3 stated: ". . .

Concerning the interim order [sought] by Defendant

The Arbitral Tribunal has taken note of the procedure pending in the Ivory Coast in which Claimant is asking that the amount of fines (astreintes) be assessed (liquidées) and that the attachment on vehicles, as a guarantee for the payment of the fines be confirmed (validé).

Defendant has asked the Arbitral Tribunal to instruct the parties not to take further steps in the above mentioned proceedings nor to enforce any decision resulting therefrom.

The Arbitral Tribunal notes that it has no authority to interfere in State Court proceedings dealing with the compliance of prior judicial decisions rendered and thus outside the scope of the arbitration clause and its subject matter.

However, the Arbitral Tribunal calls the parties' attention to the fact that at the time of its award, it will take into consideration the financial consequences that may result on the parties to the present arbitration from the decisions obtained prior and during these arbitration proceedings and the moves of the parties relating thereto.

Concerning the security for costs asked by Claimant

The Arbitral Tribunal is not satisfied that the request for security for costs presented by Claimant is justified for the time being."'

Ordonnance procédurale n° 10

'. . . Claimant informed the Arbitral Tribunal that Defendant had obtained two attachments (saisies conservatoires) in Abidjan: one on the assets of the company . . ., the other on the assets of the company . . ., both for payment of . . . in principal, representing alleged "late payments by Claimant". Claimant submitted that the ground for these attachments was exactly the same in amount, and concerned the same questions that the Arbitral Tribunal had to decide. The Claimant added that these attachments, made after the hearings and exchanges of briefs of the parties, when the Arbitral Tribunal was deliberating revealed an inadmissible attitude of Defendant which could not be compared with the conservatory measures sought by Claimant which were made before the case was submitted to the Arbitral Tribunal. Claimant consequently requested the Arbitral Tribunal "to issue an order giving immediate injunction to Defendant to respect the status quo, to freeze any local attachment procedure until [the Arbitral Tribunal's award was issued]". . . . Defendant submitted that Claimant's application should be dismissed. Indeed, it emphasised that the attachments should be of no concern to Claimant, as they were made against other companies . . . Defendant explained that it had discovered recently that Claimant had been transferring its assets to these companies, "clearly in order to organise its affairs in view of the forthcoming arbitration award": that was the reason why Defendant made these attachments without informing the Arbitral Tribunal previously. Defendant pointed out that the measures taken, saisies conservatoires, were by their nature protective only, had no bearing on the merits of the dispute, and as such fell within the definition of "interim and conservatory measures" as provided under article 8(5) of the ICC Rules. Finally, as far as the proceedings by Claimant against Defendant in the Ivory Coast with regard to the impounding order and specifically the claim for an astreinte of around FCFA 9 billion were concerned, the Defendant informed the Arbitral Tribunal that:

"On . . . the Appeal Court of Abidjan upheld Defendant's appeal against the order obtained by Claimant liquidating the astreinte in the sum of FCFA 4.3 billion on the basis, inter alia, that there could be no question that the order had not been complied with by Defendant (given that it had in effect delivered all 226 vehicles claimed), and that, due to Claimant's failure to precisely identify the vehicles to be delivered, it had not been possible for Defendant to comply with the order more promptly. The Appeal Court has assessed the fine payable by Defendant to be nil and, as a consequence, has lifted the order impounding Defendant's assets. Claimant has now filed an appeal against the Appeal Court's decision to the Supreme Court of the Ivory Coast".

. . . Claimant reiterated its application for an immediate action of the Arbitral Tribunal, alleging that if Defendant were to continue its judicial abusive moves in the Ivory Coast, this would deprive the Arbitral Tribunal's award of any effect by disappearance of one party. Claimant also indicated that the Defendant, together with [Defendant's group] and [Company X] had started a new press campaign in the Ivory Coast; the Claimant joined some articles alleging that they confirmed [Company X] and Defendant's "attempt to employ the best workers of Claimant". Claimant added that Defendant's attitude directly violated Procedural Orders no. 2 and no. 3, and was in contradiction with Article 8(5) of the ICC Rules. The Claimant indicated that it was compelled to introduce a référé d'heure à heure to defend itself. Finally, it requested the Arbitral Tribunal "to issue an injunction order to Defendant to have Defendant respect [the Arbitral Tribunal's] previous orders as well as the institution of ICC arbitration itself". . . . Defendant repeated that Claimant has misrepresented the purpose of Defendant's actions in the Ivorian Courts, which were only to prevent Claimant from disposing of its assets prior to the issue of the Arbitral Tribunal's award on the merits. Defendant pointed out that it was not applying to the Ivorian Courts for a judgement on the merits. As far as the press campaign was concerned, Defendant emphasised that it was purely a [Company X] initiative for advertising and recruitment, which could not be said to be directed at Claimant or its staff. Finally, the Defendant stressed that the necessity of the référé alleged by Claimant proved that the appropriate forum for an urgent interlocutory application was the Ivorian Courts and not the present ICC arbitration procedure. . . . Claimant informed the Arbitral Tribunal that its référé d'heure à heure was "intended to obtain mainlevée of the interim order in Defendant's favour pursuant to which Claimant's assets, in particular the . . . vehicles, [had] been seized, allegedly to secure a purported debt of Claimant towards Defendant of . . ., as [had] the assets of two other companies, . . ., to secure the same purported debt". Claimant refuted the allegations made by Defendant . . .: Claimant indicated that it never attempted to dispose of its assets . . . and stressed that Defendant was clearly attempting to involve the Ivorian Courts in the merits of the case pending in this arbitration. Claimant added that Defendant's recent actions reversed the situation in the Ivory Coast, as the writ of distraint upon 401 vehicles which had been imposed to guarantee Claimant payment of the fine by Defendant had been lifted, and the fine previously ordered in favour of Claimant was also cancelled. Furthermore, Claimant continued denouncing "the tactics and fraudulent means used by Defendant, [Company X] and [Defendant's group] to organise Defendant's insolvency, so that Defendant and [Defendant's group] might escape justice". Claimant reaffirmed that Defendant had no right, on the grounds of Article 8(5) of the ICC Rules, to take the steps it had taken in the Ivory Coast and that Claimant's request was entirely justified and in accordance with Procedural Order no. 3. Therefore, "Claimant respectfully [asked] the Arbitral Tribunal to take all necessary steps to render the award within the shortest possible delay, whatever its contents [would] be, and to formally order Defendant to cease and desist from all its current doings in the Ivory Coast, and to refrain from any further action such as may interfere with Claimant business". Moreover, "in accordance with Order no. 3, Claimant respectfully [asked] the Arbitral Tribunal to take into consideration the further financial damage and prejudice to Claimant arising from Defendant's recent actions". . . . Defendant strongly refuted the allegations contained in Claimant's letter . . . It reaffirmed that its actions in the Ivorian courts aimed at obtaining a conservatory measure, and certainly not a "disguised enforcement measure against Claimant", as alleged by the Claimant. Defendant indicated, inter alia, that Claimant's allegations concerning an alleged [Defendant] strategy to organise its insolvency [were] blatantly false and unsupported; and it repeated that the Claimant's comparison between the present conservatory proceedings by Defendant and Claimant's interim proceedings in the Ivory Coast commenced prior to the arbitration was not only irrelevant but totally misconceived. Defendant stressed that after the impounding order was lifted, it quite properly exercised its rights to sell vehicles and spare parts to its dealer [Company X], in return for cash payments that amounted then to 900 million FCFA, which in itself was clear proof that Defendant was not organising its own insolvency. Defendant stressed that "in these circumstances, it would be manifestly wrong for the Tribunal to order Defendant to provide a deposit guarantee as sought, given that this would effectively replace security to which Claimant had not been entitled in the first place, and indeed [was] not entitled in any event". In conclusion, the Defendant requested the Arbitral Tribunal to reject Claimant's demand for an injunction and for security; and it repeated the Claimant's request for an award to be made on the merits of the parties' respective claims as soon as possible.

. . . [T]he Arbitral Tribunal issued Procedural Order no. 10, that reads:

"The Arbitral Tribunal has taken note of the attachments ordered by the judicial authorities of the Ivory Coast at the request of Defendant, as described by Claimant in its letter of . . . and of the subsequent letters to the parties on this subject.

In the light of Article 8(5) of the ICC Rules, the Arbitral Tribunal stresses that it fails to see that exceptional circumstances authorised Defendant to request such attachments to judicial authorities.

In particular, the Arbitral Tribunal must express its concern that Defendant decided to enter into that course of action at the present stage of the procedure, without even informing the Arbitral Tribunal.

The Arbitral Tribunal confirms the content of its Procedural Order no. 3 . . ., which reads as follows in its relevant part:

"the Arbitral Tribunal calls the parties['] attention to the fact that at the time of its award, it will take into consideration the financial consequences that may result on the parties to the present arbitration from the decisions obtained prior and during these arbitration proceedings and the moves of the parties relating thereto".

The Arbitral Tribunal considers that this statement applies to the present situation and enjoins both parties to refrain from taking any step that may deprive of its purpose the award presently under deliberation."

By letter of the same date, Claimant sent to the Arbitral Tribunal the Order . . . of the Supreme Court of the Ivory Coast . . ., which suspended the référé order of the Abidjan Court of Appeal . . .

. . . Defendant repeated that by not informing the Arbitral Tribunal prior to pursuing the attachment proceedings, it was not intending not to comply with Article 8(5), but it tried to avoid the detrimental effect of the efficiency of those proceedings that the [prior informing] of the Claimant could have had. Defendant also assured the Arbitral Tribunal that the attachment proceedings were purely conservatory in nature. Defendant added that Claimant was still seeking to obtain an astreinte of 6.92 billion FCFA liquidated against Defendant. Defendant expressed its trust that "in the light of the Arbitral Tribunal's latest ruling Claimant [would] reconsider its position".

Le tribunal arbitral examina par la suite la question de savoir si les contrats avaient été ou non valablement résiliés et les manquements invoqués par les parties à l'appui de leurs positions respectives. Le défendeur incluait dans la liste des manquements qu'il reprochait au demandeur, la violation de l'obligation incombant aux parties de soumettre leurs différends à l'arbitrage de la CCI, ce à quoi le demandeur répondit :

'that its application to the juge des référés was neither made in breach of the arbitration clause, nor was its application to the First Instance Court of Abidjan for liquidation of the astreintes. Claimant adds that the provisional decisions made by the courts of the Ivory Coast to order the delivery of the 226 vehicles, requested for delivery in . . . and which the Claimant paid for, were justified and should be confirmed by the Arbitral Tribunal. Claimant also alleges that, contrary to Defendant's affirmations, it had not attempted to delay nor to disrupt the arbitration proceedings: [on] the contrary, it was Defendant and [Defendant's group] which forced Claimant to initiate a second arbitration.'

Après règlement des comptes entre les parties, le tribunal arbitral examina les diverses autres demandes qu'elles avaient soumises.

Sur les décisions sollicitées par le demandeur relativement à la procédure :

'Claimant has requested the Arbitral Tribunal to make the following findings in relation [to] court proceedings in the Ivory Coast:

"- a finding that Claimant did not breach the arbitration agreement in applying for interim measures to the Court of the Ivory Coast in accordance with Article 8(5) of the ICC Rules;

- a finding that Defendant abusively refused to comply with the decisions of the Abidjan First Instance Court and of the Abidjan Court of Appeals until it was forced to do so by the Police by order of the Abidjan Public Prosecutor".

The Arbitral Tribunal has no authority to interfere with the proceedings in the Ivory Coast, including the problems of compliance with the decisions made by the Courts of that country.

However, it is the Arbitral Tribunal's view that Claimant did not breach the arbitration agreement by relying on Article 8(5) of the ICC Rules in applying for interim measures, before national Courts, under circumstances where it was not appropriate to resort to arbitration since the Arbitral Tribunal was not operational.'

Sur la demande du défendeur relative aux frais supplémentaires d'entreposage et d'assurance :

'Defendant explained that it continued to bear these costs as a result of Claimant's action to implement the astreinte as increased by the Court of Appeal of the Ivory Coast's decision . . ., blocking then 401 vehicles.

The Arbitral Tribunal acknowledges that it decided . . ., as stated in Procedural Order no. 3 . . ., that: "at the time of its award, it will take into consideration the financial consequences that may result on the parties to the present arbitration from the decisions obtained prior and during these arbitration proceedings and the moves of the parties relating thereto".

However, the Arbitral Tribunal could only take into consideration the mentioned financial consequences if, by doing so, it had not to question the merits of the decisions of the Ivory Coast Courts.

The Arbitral Tribunal stressed that the seizure of 401 vehicles was the result of a saisie arrêt granted . . . by the First Instance Court of Abidjan as a security for Defendant's payment of the astreintes Claimant intended to obtain, since it alleged that four of the 226 vehicles it has received from Defendant upon decision of the juge des référés of the First Instance Court of Abidjan, confirmed by the Court of Appeal . . ., were used vehicles.

The Arbitral Tribunal is not entitled to question the decision . . . of the First Instance Court of Abidjan.

Furthermore, the Arbitral Tribunal stresses that Defendant could have obtained the release of the 401 seized vehicles by supplying Claimant with four other new vehicles, on a provisional basis, without prejudice.

Consequently, the Arbitral Tribunal decides to dismiss Defendant's request for excess stocking and insurance costs.'

Sur les dommages-intérêts sollicités par le défendeur en raison du préjudice qui lui aurait été causé par l'action engagée par le demandeur en Côte d'Ivoire :

'In its post-hearing brief, Defendant requested the Arbitral Tribunal to make:

". . . a declaration that, by reason of Claimant's breaches of the Agreements, Defendant has suffered loss and damage and that as a consequence Defendant is entitled to the following financial awards . . .

- damages following Claimant's wrongful actions in the Ivory Coast . . ."

Defendant added that it: "maintains its claim for legal costs . . . Further, Defendant claims depreciation at a conservative rate of 1% per month of the retail value (less tax) of the 401 vehicles wrongly seized since . . ."

The Arbitral Tribunal dismisses this request, for the reasons already stated to dismiss Defendant's request for excess stocking and insurance costs and according to the Arbitral Tribunal's decision concerning Claimant's request for findings relating to the proceedings . . . in which it indicated that in its view Claimant has not breached Article 8(5) of the ICC Rules in applying for interim measures.'