'113. In relation to the alleged failure of [Claimant] to fulfil other obligations under the Software Distribution Agreement, in its Memorial of . . . [Respondent] asserted that [Claimant] violated its obligations under sections 3.5.1 and 3.7.1. These provisions relate to the promotion and licensing of [X] software and the maintenance of business premises. [Claimant] apparently did not object to introduction of this claim during the course of the arbitral proceedings and, in any event, the Tribunal admits it under Article 19 of the ICC Rules.

. . . . . . . . .

F. [Respondent]'s Right of Set-Off

117. [Respondent] claims a right under § 387 et seq. of the German Civil Code to set off an amount of . . . against [Claimant]'s claim for license fees. [Respondent]'s claim is based on invoices due which [Respondent] alleges [Claimant] has not paid.

118. [Respondent]'s set-off constitutes a counterclaim for purposes of Article 19 of the ICC Rules. The claimed right of set-off is not included in the Terms of Reference. In the interests of fairness, to both parties, the Tribunal declines to permit assertion of the alleged set-off claim in the present arbitration.

119. [Respondent] indicated at the time that the Terms of Reference were signed that it wished to reserve the right to assert a set-off in the future against any amounts owing to [Claimant]. During the course of the present arbitral proceedings facts developed that led [Respondent] to assert a set-off, which it did on 19 November 1999. The Tribunal was presented with facts and documents bearing on [Respondent]'s set-off claim thereafter during the course of the arbitration.

120. Neither party made any significant submissions concerning [Respondent]'s set-off claim. [Respondent]'s evidence in support of the claim consisted almost entirely of a letter drafted by its counsel asserting the set-off, and a number of attached invoices. [Claimant]'s response to the claim consisted almost entirely of a letter by its counsel responding to [Respondent]'s letter. Neither party adduced witness testimony concerning the set-off.

121. The factual and legal bases for [Respondent]'s set-off are dissimilar to [Claimant]'s primary and alternative claims and to [Respondent]'s retention claim. The set-off depends upon [Respondent]'s right to payment for a variety of goods provided and services rendered. In order for the Tribunal fairly to decide this claim, it would be obliged to further delay the making of this award, in order to hear new evidence and argument. Given the date on which the set-off was asserted and submitted to the Tribunal, and the dissimilarity between the set-off and the other matters at issue in this arbitration, the Tribunal declines to consider the set-off claim in the present arbitration. [Respondent] remains free to pursue that claim by other means.'