La demanderesse, une société commerciale d'un pays africain, conclut un crédit revolving (« Facility Agreement ») avec la banque défenderesse (A) aux fins de financer l'achat de café pour la revente sur le marché international. Une banque (B) établie dans le même Etat que la demanderesse entreprit d'exécuter certaines obligations au nom de la banque défenderesse dans le cadre de la facilité de crédit. Ces obligations furent consignées dans un accord tripartite appelé « Tripartite Agreement » et prévoyaient notamment le versement de fonds par la banque B à la demanderesse sur présentation de certains documents et le remboursement de ces fonds à la banque B par la défenderesse. Un paiement ayant été effectué par la banque B, la défenderesse refusa de le lui rembourser au motif que la banque B n'avait pas obtenu les documents de transport exigés avant d'effectuer le paiement. Un différend les opposa quant aux documents qui devaient être présentés pour obtenir remboursement.

Il appartient au tribunal arbitral de déterminer si le comportement de la banque défenderesse valait renonciation à la convention de crédit que la demanderesse avait acceptée comme mettant fin à la convention et si la demanderesse était en droit de percevoir des dommages-intérêts et de se voir rembourser les frais de mise en place du crédit prévus dans le crédit revolving.

'3.4 The difference between the parties as to whether or not the Bank showed an intention no longer to be bound by the Facility Agreement turns, in the Tribunal's view, on the parties' different views as to the Bank's obligations on the proper construction of the Facility Agreement. The proper construction of the Facility Agreement is, of course, a question of law for the Tribunal and the evidence of various witnesses as to their understanding of what the relevant provisions of the Arrangements meant is therefore inadmissible and we have paid no regard to it.

3.5 The crucial provisions of the Facility Agreement in this regard are contained in article II(e), which provides:

"The Facility shall be utilised to finance 80% of the value of the Export Ready Coffee which value shall be determined using the ruling Government minimum price as stipulated by [State X] Coffee Development Authority for Export Ready Coffee. The Lender shall avail the Facility to the Borrower through a Commercial Bank in [State X] [[Bank B]] on a reimbursement basis. The Commercial Bank shall be required to make payments directly to the Borrower on production of the documents stipulated in clause (e)(ii) below and then the Commercial Bank shall submit an application for reimbursement to the Lender provided:

(i) reimbursement will be done when claims have accumulated to a minimum amount of US$ 250,000;

(ii) the following documents which the Commercial Bank shall obtain from the Borrower against payments made, are submitted together with the application for reimbursement:

• [Inspection Company] warehouse warrants and confirmation of the volume and the value of the Export Ready Coffee which [Inspection Company] shall issue to the Borrower on delivery of Export Ready Coffee by the Borrower at the Warehouse which shall be managed by [Inspection Company] under a Collateral Management Agreement to be entered into among [Inspection Company], the Borrower and the Lender; and

• the Ruling Government minimum price for Export Ready Coffee as stipulated by [State X] Coffee Development Authority."

3.6 It is also necessary to refer to certain of the provisions of the Tripartite Agreement:

(1) Recital B recorded that the Bank had requested [Bank B], of which the Claimant was a client, to perform certain obligations on the Bank's behalf in relation to the Facility and that [Bank B] had agreed to do so on the terms and conditions contained in the Tripartite Agreement.

(2) By clause 1:

"The Facility shall be availed to the Borrower through [Bank B] on a reimbursement basis as follows:-

(a) [Bank B] shall make payments directly to the Borrower. Such payments shall be 80% of the value of the Export Ready Coffee which value shall be determined using the ruling Government minimum price as stipulated by [State X] Coffee Development Authority for Export Ready Coffee delivered and received by [Inspection Company] who will manage the storage of the said coffee on behalf of [Bank A] under the Collateral Management Agreement entered into among [Inspection Company], [Bank A] and the Borrower.

(b) Subject to clause 1(c) below, [Bank B] shall release payments to the Borrower on production of the following documents:

(i) [Inspection Company] warehouse warrants and confirmation of the volume and Value of the Export Ready Coffee issued by [Inspection Company] to the Borrower on delivery of Export Ready Coffee to [Inspection Company] by the Borrower;

(ii) the Ruling Government minimum price for Export Ready Coffee as determined by [State X] Coffee Development Authority.

(c) [Bank B] shall verify the documents mentioned in clause 1(b) above and shall release payments to the Borrower on its being satisfied with the documents so produced.

(d) Reimbursement shall be done when claims have accumulated to a minimum of the amount of US$ 250,000.

(e) All applications for reimbursement together with the relevant documents shall be faxed to [Bank A] by [Bank B] and thereafter the original copies thereof shall be despatched by mail to [Bank A]."

(3) By clause 2, it was provided that [Bank B] would, on behalf of the Bank, issue release orders to [Inspection Company] to facilitate the release of the Export Ready Coffee for export.

(4) By clause 3, the Claimant was obliged to procure that [Inspection Company] delivered all export documents which should be raised in the Bank's name to [Bank B] to enable [Bank B] to collect payment from the International Coffee Buyers on behalf of the Bank and that such payments should be paid into an account designated by the Bank.

(5) Clause 4(a) provided that:

"In consideration of the performance by [Bank B] of the obligations set out in clause 1 above [Bank A] guarantees as a primary obligor and not as a surety merely to reimburse [Bank B] all the amounts paid to the Borrower under clause 1 above immediately upon receipt of the reimbursement application provided that such amounts to be reimbursed do not exceed the amount of the Facility granted to the Borrower by [Bank A] at any one given time."

3.7 On the proper construction of article II(e) of the Facility Agreement, we have no doubt that the only documents required to be produced by the Claimant to [Bank B] in order for the Claimant to be paid the 80% of the value of the coffee in question were those specified in article II(e)(ii). The Claimant was not required to produce any additional documents such as the FCR [forwarder's certificate of receipt] and indeed, in the context of the purpose of the Facility Agreement, any such requirement would not have made commercial sense. We reject the Bank's contrary submissions, based upon the Arrangements as a whole and, in particular clause 1(e) of the Tripartite Agreement and the need for the Bank's position to be secured at all times. Those submissions are contradicted by the plain language of article II(e). It was also submitted on the Bank's behalf that, once the coffee had been sold, there was nothing to prevent the Claimant procuring that [Inspection Company] delivered all the export documents in the Bank's name to [Bank B] to enable [Bank B] to collect payment from the buyers on the Bank's behalf. However, Mr [M (representative of Defendant bank)] was constrained to accept that what prevented the Claimant from doing so was the failure of [Bank B], as the Bank's agent, to issue release orders to [Inspection Company].

3.8 This conclusion is reinforced by the other documentary and oral evidence. If the Bank's construction of the Facility Agreement were correct, there would have been no need for the efforts to vary it which occurred at the meeting on 8 May 1995 nor any reason for the Bank's refusal to proceed with the Facility Agreement in its original form. We accept the evidence of Mr [S (official of Defendant bank)], whom we found to be an honest and straightforward witness, that what in fact happened was that it was only when the Bank received [Bank B]'s claim for reimbursement that it "realised that supporting documentation as called for under the Facility Agreement did not sufficiently protect its interests" . . . and so refused to reimburse [Bank B].

3.9 In these circumstances, we unhesitatingly conclude that the Bank's refusal on 25 April 1995 to reimburse [Bank B], on the ground that [Bank B] did not get shipping documents from the Claimant prior to paying the Claimant the 80%, of which the Claimant was advised by copy of the fax from the Bank to [Bank B], was a repudiation of the Facility Agreement. So too were the Bank's fax of the same day to the Claimant which stated that the Facility would have to be cancelled in the absence of provision of export documentation to [Bank B]; and its fax of 9 June 1995 to the Claimant which stated that it would only be prepared to proceed with the Facility if the amendments in its letter dated 9 May 1995 were accepted. We reject the Bank's submissions that there was no evidence of any intention on the Bank's part no longer to perform the Facility Agreement. The above faxes speak for themselves. In particular, it is unrealistic of the Bank to suggest that there was no evidence that [Bank B], on its behalf, would not have paid the Claimant 80% of the value of the coffee in question in respect of second and subsequent shipments. It is clear to us that [Bank B] was not going to part with further monies to the Claimant when the Bank was making it clear that it was not going to reimburse [Bank B] in respect of the first shipment. Also, the provision by the Bank of details of its US$ account in its fax to the Claimant of 25 April 1995 does not assist the Bank. The Bank was only prepared to continue with the Facility on terms other than those laid down in the Facility Agreement.

3.10 It is next necessary to consider the meeting which took place on 8 May 1995. We had considerable reservations about the veracity of Mr [K (Claimant's Executive Director)]'s evidence generally and, where it differed from that of the Bank's witnesses, are not prepared to accept it unless it is corroborated by the contemporaneous documentation. Adopting that approach, we are not satisfied that the Facility Agreement was varied at the 8 May meeting, despite the evidence of Mr [S] and Miss [G (senior legal officer with Defendant bank)] (who we also accept to be an honest witness) to the contrary. The documents referred to in paragraphs 2.10 and 2.11 above in our opinion contradict the existence of a variation to the Facility Agreement having been agreed at the meeting on 8 May 1995.

3.11 There is a further reason why we find that the Facility Agreement was never varied. In his oral evidence, Mr [S] made it clear that whatever may have been agreed on 8 May required the approval as a whole of the Bank's senior management; and that the Bank's senior management did not give its approval to [Bank B] continuing as the commercial bank. It is accepted by the Bank that such approval was never given and, in those circumstances, we find that, even if there was an agreement reached on 8 May 1995 between the individuals who attended the meeting as alleged by the Bank, it never became effective since it was never approved in its totality by the Bank's senior management.

3.12 There is one other matter relied upon by the Bank in the present context to which we should briefly refer. The Bank submitted that performance of the Facility Agreement became problematic because [Bank B] became under a disability on 10 April 1995 when placed under the statutory management of the Central Bank of [State X] and was unsuitable to carry out the function of making disbursements. In our opinion, however, the position of [Bank B] has no bearing on the Bank's position in the present case.

3.13 We further conclude that the Claimant's letter to the Bank dated 28 June 1995 referred to in paragraph 2.13 above was a valid acceptance by the Claimant of the Bank's repudiatory conduct and it had the effect of bringing the Facility Agreement to an end. In reality, given the Bank's position, the Claimant did not have the option to proceed with the Facility Agreement.

. . . . . . . . .

4.7 Simply stated, we consider that the Claimant has failed to prove on the balance of probabilities that it has suffered any loss of profit as the result of the Bank's repudiation of the Facility Agreement. There was, for example, no expert accountancy evidence to show any such loss and no other evidence sufficient to satisfy us of any such loss. It is perhaps noteworthy too that in its letter dated 28 June 1995, in which the Claimant wrote to the Bank to request the return of the US$ 60,000 paid on 30 November 1994 and interest thereon of US$ 8,750 at the rate of 25%, no mention whatever was made of any losses suffered by it as the result of the Bank's repudiation of the Facility Agreement. We are satisfied that, if the Claimant had in fact suffered loss as the result of the Bank's actions, Mr [K] would not have been slow to refer to it and claim it in that letter.

4.8 In those circumstances, we award the Claimant only nominal damages in the sum of US$ 100 . . .

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5.1 It was submitted on the Claimant's behalf that . . . it was entitled to the return of the US$ 60,000 facility fee paid by it on 30 November 1994 on the ground that there was a total failure of consideration. Against this, the Bank submitted that any failure of consideration was only partial since the Claimant did receive from [Bank B] 80% of the value of the coffee in the first shipment under the Facility Agreement. Although superficially attractive, the Bank's submission is not well-founded and we reject it. The essence of the Facility Agreement was that the credit facility granted under it was a revolving one. In fact, for the reasons already stated, the Claimant never obtained a facility which revolved. We consider, therefore, that the fact that the Claimant did obtain from [Bank B] 80% of the value of the coffee in the first shipment was not consideration at all for the US$ 60,000 facility fee. Such payment was also not a proper payment by [Bank B] on a reimbursement basis under the provisions of the Tripartite Agreement.

5.2 The Claimant is, therefore, entitled to the return of the US$ 60,000 facility fee. Its letter of 28 June 1995 to the Bank further claimed interest of US$ 8,750 incurred on the amount of the facility fee from 30 November 1994. However, Mr [Z] on behalf of the Claimant accepted that there was no evidence to support a claim for interest in that amount. Nevertheless, we consider that the Claimant is entitled to interest from 28 June 1995, when it accepted the Bank's repudiatory conduct as bringing the Facility Agreement to an end. We further consider that the rate of interest to be applied should be 6% per annum, being what we consider to be the appropriate commercial rate which the Claimant would have had to pay to borrow the money.'