ICC Rules: 1998

Claimant: Agricultural machinery manufacturer (France)

Defendant: General trading company (Ukraine)

The parties entered into a contract for the sale of agricultural machinery by Claimant to Defendant. Payment for such machinery was to be made in four instalments, only the first of which was paid. Failing agreement on the postponement of further payment, Claimant delivered a default notice to Defendant, requesting the return of the machinery. However, the parties were unable to agree on the terms upon which their dispute might thus be settled. Claimant filed a Request for Arbitration, seeking the return of the machinery and payment of the outstanding price of such machinery plus interest, less the value of the machinery. The Arbitral Tribunal, comprising a sole arbitrator, first considered whether the default notice was effective under the contract between the parties. It decided that it was and that consequently all outstanding payments were due forthwith and that Claimant was entitled to take possession of the machinery. The amount due to Claimant was therefore the outstanding balance less the value of the machinery, if such value was less than the total amount of the unpaid balance and recoverable interest. In connection with the evaluation of the machinery, it stated as follows:

'In the absence [of] evidence of the value of the machinery Claimant's monetary claim must be deferred for a later Award. By this Award the parties are given directions for such evidence.

This Award also provides for the immediate return of the machinery to Claimant. In addition, Claimant has sought orders for the conservation of the machinery and access to it pending its return to Claimant, and for the provision to Claimant by Defendant of the original customs declaration (or a certified copy or duplicate thereof). Notice of Claimant's intention to seek these orders was given to Defendant on . . . after the matter had been considered in the course of the hearing at which Defendant was not present. Defendant has not made any specific objection to the orders sought although, as has been stated earlier, it has submitted by its post closing comments, that no award for the delivery of the machinery need be made.

The Tribunal has the power pursuant to Article 23 of the Rules to order any interim or conservatory measure it deems appropriate. In view of the main findings of this Award, it is in the Tribunal's view plainly appropriate that the substance of the interim and conservatory measures sought by Claimant should be provided for. This is to assist in the preservation of the machinery and the provision of evidence as to value.

. . .

As it is likely that further costs will be incurred in connection with the provision of valuation evidence and in relation to the preparation of another award dealing with the monetary claims, it is not appropriate for the Tribunal to fix the costs of the arbitration in this Award. The Tribunal therefore reserves the costs of the arbitration for such an award.

. . .

Accordingly (for the reasons given in this Award), the Tribunal awards, declares and orders that:

. . .

As conservatory and interim orders (pending possession):

The Defendant must:

(1) give immediate possession of the original customs declaration in respect of the said machinery (or a duly certified copy or duplicate thereof) to the Claimant;

(2) immediately disclose to the Claimant the whereabouts of the said machinery;

(3) allow to the Claimant and/or its nominated representatives immediate access to the said machinery upon request; and

(4) refrain from any further use of the said machinery.

. . .'