<i>Clause de règlement des différends</i>

'Any controversy that may arise among the parties with respect to the legal relation arising out of this Agreement shall be submitted to senior management representatives of the parties who will attempt to reach an amicable settlement within fourteen (14) calendar days after submission.

If an amicable solution cannot be reached by negotiation, the dispute shall be finally settled by arbitration by a panel of one (1) arbitrator, which shall be appointed by both parties. In the event the parties fail to appoint the arbitrator within the following fifteen (15) days as of the initiation of the arbitration, such arbitrator shall be designated by the International Chamber of Commerce, Paris, who conducted in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce, Paris. The site of the arbitration shall be Mexico City, and the language to be used in the arbitration shall be the English Language. The award of the arbitrator shall be final and binding upon both parties, and neither party shall seek recourse to a court of law or other authorities to appeal for revision of such award or any other ruling of the arbitrators. The cost of the arbitration shall be borne by both parties in equal amounts.'

<i>Décision du tribunal arbitral</i>

'Issue number 1 of the Terms of Reference, reads as follows:

1. Has [Claimant] complied with the "amicable solution" procedure set forth in clause Twenty Four (third paragraph) of the Agreement?

The Agreement included the following covenant (clause Twenty Four (third paragraph):

"Controversies in General. Any controversy that may arise among the parties with respect to the legal relation arising out of this agreement shall be submitted to senior management representatives of the parties who will attempt to reach an amicable settlement within fourteen (14) calendar days after submission."

[Defendant] argued [Claimant]'s non-compliance to the aforementioned provision. [Defendant] stated that no senior management representative was involved in said negotiation process, yet only a legal representative (apoderado) of [Claimant]. [Defendant] alleged that contacts with such representative were only in the form of requests of payment of the due amount in favor of [Claimant].

[Claimant] alleged that there were several contacts between the parties in order to comply with the aforementioned provision. [Claimant] alleged among other considerations in its favor, the content of various written communications sent from [Claimant] to [Defendant]. Those communications were introduced as [Claimant]'s evidence. Moreover, [Claimant] introduced evidence in support of the foregoing in the form of affidavits rendered by . . . Those affidavits depict various communications involving management representatives.

The sole arbitrator produces the following analysis regarding the issue depicted herein.

The evidence introduced by [Claimant] reflects that there were prior management contacts between the parties. This, in addition to other contacts which involved [Claimant]'s legal representative.

Nevertheless, a prior mandatory process of communication between the parties in conflict cannot be understood as a process wherein a formal description of its contents (such as description of the representatives, timing provisions, formal encounters) is of the essence. A prior process like the one set forth in the Agreement, rather implies an attitude and behavior of the parties inspired in a true and honest purpose of reaching an agreement. Henceforth, if one of the parties considers in good faith that its counterpart is not authentically committed to foster the possibilities of settling the dispute, for instance, because of the quality of its representative, it is expected that the former would express so during the process. So that, the counterpart might be able to put a prompt remedy to said objection.

Applying these ideas to the issue in comment, the sole arbitrator's view is as follows.

(i) The parties' management officers were in direct contact. This is evidenced by the affidavits rendered by . . . (starting as of November 1997). [Claimant]'s request for arbitration was received at the Court Secretariat on May 14, 1998.

(ii) [Claimant] delivered to [Defendant] various communications inviting to settle differences among the parties. [Claimant]'s letters in connection with the foregoing dated January 27, 1998 and March 25, 1998, were produced prior to the initiation of these arbitration proceedings.

(iii) [Defendant]'s allegation objecting the characteristics of [Claimant] representative involved in the process is a post factual argument. If [Defendant] was truly committed to settle the controversy and considered the characteristics of the [Claimant]'s representative as an obstacle in doing so, it would be expected that [Defendant] should have raised such point at that time. It did not occur.

(iv) The above commented clause which requests for a prior settlement process, does not preclude the intervention of legal representatives. Pursuant to Mexican Law, a legal representative (apoderado) can perform a task on behalf of his client unless there is a mandatory prohibition stating the contrary. There is none in this case.'