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

Les conditions relatives à l'ingénierie comportaient la clause suivante :

'Any differences or disputes arising from this contract or from agreements regarding its performance shall be settled in an amicable manner by both parties to the Contract. An attempt to arrive at a settlement shall be deemed to have failed as soon as one of the parties to the contract so notifies the other party in writing.

If an attempt at settlement has failed, the disputes shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce in Paris by three arbitrators appointed in accordance with the rules.

The place of arbitration shall be Zurich in Switzerland. The procedural law of this city shall apply where the rules are silent.

The Arbitral award shall be substantiated in writing. The court of arbitration shall decide on the matter of costs of the arbitration.'

Les conditions relatives à la construction comportaient la clause suivante :

'If any differences of opinion or disputes shall arise out of or in connection with this contract, or from any agreements regarding the implementation of this contract, the parties concerned will in the first place make an effort to settle them without recourse to arbitration. The attempt to reach agreement shall be considered as having failed as soon as one of the parties has informed the other party to this effect in writing.

If the conciliation attempt has failed, the disputes shall be finally and bindingly settled, eliminating legal proceedings, under the rules of Conciliation and Arbitration of the International Chamber of Commerce in Paris (ICC) by three arbitrators appointed in accordance with those rules.

The venue of the arbitration proceedings shall be Zurich/Switzerland. The procedural law of this venue shall apply as far as the ICC Rules do not contain any relevant provisions.

The language of the arbitration shall be English.

The arbitration award shall be duly substantiated in writing. The Court of Arbitration shall also decide on the costs and expenses of the procedure and their refund.

An appeal to the Court of Arbitration shall not entitle the Contractor to interrupt or delay any services.'

<i>Décision du tribunal arbitral</i>

'Thus, it results from the two arbitration agreements applicable to the Contract that, before resorting to arbitration, the parties must attempt to settle their dispute amicably. It is only if this attempt has failed that the dispute may be resolved by arbitration. The attempt is deemed to have failed as soon as one of the parties had informed the other party to this effect in writing.

In a nutshell, Respondent no. 1 holds that the Request for Arbitration is inadmissible because the Claimant did not inform it in writing of the failure of the amicable settlement phase before filing the Request for Arbitration. That this phase took place is not disputed. The Arbitral Tribunal cannot share Respondent no. 1's conclusion.

Indeed, in its letter dated April 3rd, 1998, Claimant wrote to both Respondents:

"We hereby invite you to discuss our problems in an amicable way during the next 30 days, i.e. until May 04, 1998. In case we cannot reach a solution to our differences within this period, we propose to appoint Chilean arbitrators, and hold the arbitration in Chile.

In the event we do not solve our differences and do not reach an agreement in the proposed, we will proceed according to what was agreed on this matter in the Contract."

Such letter was clearly indicating that, should no amicable settlement take place by May 4, 1998, either on the substantial dispute among the parties or on the organisation of an arbitration in Chile, Claimant would resort to arbitration under the appropriate clauses. Fixing in advance in a letter a date by which the attempt to amicably settle the dispute would be held as having failed in this absence of a settlement was an acceptable substitute to sending a letter notifying Respondents of such failure. Therefore, by May 4, 1998, Claimant was entitled to file a Request for Arbitration without breaching the obligation to attempt to reach an amicable settlement.

The fact that negotiations continued after May 4, 1998, does not modify that conclusion. It is not unusual to find an amicable solution to a dispute in parallel with an arbitration procedure. It is what happened in this case where the parties were still considering the possibility of an amicable settlement several weeks after the filing of the Request for Arbitration as it results from the various correspondence submitted to the Arbitral Tribunal.

Therefore, the Arbitral Tribunal concludes that Respondent no. 1's argumentation in order to establish that the Request for Arbitration is inadmissible is factually wrong. This finding is sufficient to declare the Request for Arbitration admissible.'