The parties entered into an advertising contract, according to which the claimant was to place an advertisement in a journal on behalf of the respondent at an agreed price. Upon the respondent's failure to pay the price, the claimant initiated arbitration proceedings to recover the sum due. The parties' contract contained an arbitration clause giving the arbitrator the powers of amiable compositeur.

'Claimant and Respondent agreed that the arbitrator is named "amiable compositeur" and is to decide the case according to the principles of equity;

As the place of arbitration is Paris (France), the Arbitral Tribunal examines hereinafter whether the clause as agreed between the parties is valid under French law;

Article 1497 of the French "New Procedural Code" stipulates that the arbitrator shall decide as "amiable compositeur" provided the agreement to arbitrate entrusted him this mission;

The fact that the parties named the arbitrator "amiable compositeur" and empowered him to decide the case according to the principles of equity, demonstrates the parties' intention that the Arbitral Tribunal acts as "amiable compositeur" deciding the case according to the principles of equity.

Thus, this contractual provision is not contrary to French law and the Arbitral Tribunal shall make use of the powers granted to him in accordance with French law and as he deems appropriate (Matthieu de Boisséson, Le droit français de l'arbitrage interne et international, Paris, 1990, n° 663, p. 593-594; Lamy, April 1997, article 1497, p. 35-36);

In order to decide on the issues to be determined as defined in the Terms of Reference and on the Claimant's claim, the Arbitral Tribunal shall analyse the documentary evidence submitted by Claimant;

. . . . . . . . .

Claimant requests:

First: That the defendant is obligated to pay the claimant the amount of principal . . . plus the agreed contractual interests accrued, at a rate of 1,4% per month of delay, since the date on which the payment should have taken place . . ., up to the date in which all sums are effectively paid to the claimant.

The Arbitral Tribunal found, based on the evidence analysed above, that Claimant performed its undertakings under the Advertising Contract . . . and Respondent has no valid defence against Claimant's request for payment of the principal amount and is in breach of contract;

Thus, Claimant is entitled to the principal amount provided for in the Advertising Contract . . .

Article 1.2 of the Advertising Contract . . . stipulates that any delay in payment shall involve, without need of any demand for payment, the additional late-payment interest, at the rate of 1.4% per month of delay;

The principal amount was due as of August 13, 1994, and the late-payment interest is requested as of August 15, 1994;

Considering the fact that the Advertising Agreement . . . explicitly waived the necessity to send a dunning letter after the contractual 30 days payment term, late--payment interest is due as of August 15, 1994;

An interest for late-payment at a rate of 1.4% per month means 16.8% per year;

Given the evolution of the general trends of interest rates since 1994, an interest for late payment at the rate of 16.8% is extremely high, and using his powers to decide the case according to the principles of equity, the Arbitral Tribunal hereby reduces the interest for latepayment to 1% per month i.e. 12% per year as of August 15, 1994;

Claimant requests:

Second: That the defendant Party is forced to pay the sum of . . . prudentially estimated as damages caused to the claimant for the non-fulfilment of the contract by the defendant, which shall be destinated [sic] among others, to indemnify and compensate the professional to negotiate an amicable solution with [Respondent], without success because of [Respondent]'s refusal to reach an extrajudicial agreement, provoking therefore the filing of the present request for arbitration, and consequently our professional fees.

The analysis of the letters sent by Claimant demonstrate that Claimant made several attempts to obtain payment, and that representatives of Claimant were sent to Respondent, but without success;

The question should be asked whether Claimant can be entitled to obtain damages in addition to interest for late-payment;

Interest for late-payment compensates the fact that a creditor did not receive money due and owing and, therefore, had to attract money either from lenders or from other parties;

The interest for late-payment is already dealt with above;

The evidence submitted by Claimant demonstrates that it incurred additional costs in its repeated attempts to obtain payment, and that Respondent had no valid defence against the claims made by Claimant;

However, Claimant does not evidence the costs incurred in its attempts to obtain payment of the unpaid amount;

Although it is equitable to compensate Claimant for the fact that additional efforts had to be deployed, this compensation may not compensate for the costs of the arbitral proceedings (see hereafter);

Using his power to decide this case according to the principles of equity, and considering that no evidence as to the costs incurred by Claimant is provided, the Arbitral Tribunal reduces the amount claimed as compensation for non-fulfilment of the contract by Respondent to [by half];

Claimant requests:

Third: That the defendant is also obliged to pay the costs of the present proceedings, according to Article 20(2) of the Rules of Conciliation and Arbitration of the International Chamber of Commerce . . .,1 taking into consideration that the same have been started due to [Respondent]'s lack of cooperation.

Considering that Claimant performed its contractual undertakings and that Respondent absolutely failed to honour, even partially, its contractual undertakings, the Arbitral Tribunal considers that Respondent should bear all costs of the arbitral proceedings as fixed by the International Court of Arbitration;

Claimant further claims payment of his lawyer's fees . . .;

The Arbitral Tribunal received no evidence as to the Claimant's lawyer's fees, and making use of his power to decide the case according to the principles of equity, the Arbitral Tribunal grants Claimant an amount of [75% of the sum initially calculated] for covering his counsel's fees . . .'

1
NDLR : Il est fait référence ici au Règlement d'arbitrage de la CCI de 1988.