Les parties, des sociétés d'Europe de l'Est, ont conclu un contrat aux termes duquel la défenderesse s'engageait à dédommager la demanderesse pour le préjudice qu'elle avait subi du fait de la disparition frauduleuse de marchandises placées sous la garde et le contrôle de la défenderesse. Ce dédommagement devait prendre la forme d'une livraison d'autres marchandises ou d'une commission sur le commerce de certains produits. Aucun paiement d'intérêts n'était demandé, à condition que le contrat soit exécuté avant la date convenue du 15 juin 1996. La défenderesse n'a réglé qu'une partie de la somme due et la demanderesse a donc engagé une procédure d'arbitrage afin de recouvrer le solde impayé, plus des intérêts. Le contrat des parties, qui était en français, prévoyait que l'arbitre agirait « en arbitrage équitable ».

'1. Is there a legal obligation for the Respondent to compensate the Claimant for the loss?

In its Answer to the Request of Arbitration, the Respondent points out that the Parties never entered into a written contract specifying either that the Respondent would provide for the Claimant a suitable space for storage of [goods] or that the Respondent would take care and keep control of such storage. Therefore there can be no legal obligation for the Respondent to compensate the Claimant for the damages incurred. The Respondent simply rendered a service to the Claimant by providing for it in [company X disposing of warehouses] a convenient space for the storage of [goods]. If there exists a contract it is probably between the Claimant and [company X].

The absence of previous written contract between the Parties relating to the storage of [goods] shipped by the Claimant to [State A] was confirmed by the Claimant: "It is true that the fee arrangement was not laid down in writing . . .". Nevertheless the Respondent acknowledges that it "has rendered a service to the Claimant by providing him with a storage space for . . . his . . . [goods]" and it would be unusual that such a service be rendered free of charge. Both Parties recognize that there was an oral agreement. The Respondent declares: "The Parties had verbal [oral] communications and agreements for running [conducting] of their join[ed] operations which can be concluded [inferred?] from the fact that the Respondent had provided the Claimant . . . a suitable . . . space . . . for storage of the . . .[goods]" (Answer to the Request for Arbitration), whereas Mr [T] testified that the Parties agreed orally upon a fee that would be paid by the final buyer of the goods . . .

Moreover in its Statement of Reply, the Claimant produced as Exhibit 8 a fax from the Respondent to the Claimant dated . . . written in French and signed by Mr. [S] stating:

"Confirmation

We accept that the delivery of the goods be made upon written instruction from [Claimant]." (free translation)

A few days later, in order to proceed with the first transaction, the Claimant under the signature of Mr [T ] sent a fax to the Respondent (for Mr [S]'s attention) to suggest that it should countersign a declaration relating to the withholding and release of [goods]. This was accepted and on . . ., the following fax was sent to the Claimant:

"This is to certify that upon receipt of the [goods] from the airport of . . . thru our forwarding agent [company X] into our/their premises in . . ., that we will hold the [goods] at the disposal of [Claimant], until we have received from you the release of these [goods] to the final buyers. We also confirm that all future deliveries shall always be kept at the disposal of [Claimant] until you ([Claimant]) release the [goods] by fax to the final buyer. Accepted and agreed on above. [Company X]. [Mr S], Dept. Gen. Manager. "

This document shows that the Respondent was wrong in its Answer in claiming that it never took "any commitment to take care of and keep control of these [goods]".

This explains also why the Set-off Agreement mentions that the 2,500 boxes of [goods] which disappeared in . . .1994 were "under the custody and control of [Respondent]". As the passage printed in heavy type in the fax above quoted shows, the commitment made by the Respondent applied not only to the first transaction contemplated at that time but to any other transaction that followed. And it is the second transaction which is the subject matter of the arbitration . . .

In asserting in its Answer that "There can be no legal obligation for the Respondent to compensate for damages incurred", the Respondent misled the tribunal because this obligation arises precisely from the above-mentioned commitment. The Set-off Agreement had for sole purpose to "liquidate" the indemnity due to the Claimant as a consequence of the non-compliance by the Respondent with its previous written undertaking: "Whereas [Claimant] has sustained a loss of . . . as a result of a fraud, the disappearance of 2,500 boxes of [goods] on or about . . . 1994 which were under the custody and control of [Respondent], the following solution is agreed to compensate [Claimant] for such a loss . . ." (free translation), and there is no need to try to clarify the circumstances in which the fraud occurred from the moment the Respondent has admitted to be at fault in a document which has all the features and also the legal nature of a settlement agreement. Moreover as the Respondent did not simply render a service (implicitly alleged: free of charge) as it tends to suggest, but agreed to store the [goods] against a perfectly adequate fee, the Arbitrator sees no reason to moderate the damages to be awarded by using his powers of "amiable compositeur" subject to the comments made below.

The Arbitrator finds as a fact that the Respondent signed the Set-off Agreement under pressure. It seems that during a year and a half the Respondent refused to recognize its fault, declaring to the Claimant that it had to address itself to Mr [M], to whom apparently the 2,500 boxes of [goods] were released . . ., and who hereafter disappeared . . .

Why then did the Respondent change its position? The second witness produced by the Claimant, Mr [M] who introduced himself as a business friend of Mr [T], but added that he did not represent [Claimant] nor have authority to represent it . . ., explained the reasons thereof and the role he played in detail to the Tribunal. At no moment did this gentleman seem to realize that the kind of contact he took in [city] first with "a political friend . . ." and second with "the Ambassador of [State A]" at a time [of delicate State negotiations] could be qualified as blackmail and considered as reprehensible not only with regard to criminal law but also with regard to validity of the Set-off Agreement itself. Threat is considered in all systems of law as a legitimate ground for the party to avoid the contract (see also UNIDROIT Principles, art. 3.9). The fact that the witness claims not to be a representative of [Claimant] has no influence thereon because it is generally admitted that the threat which vitiates the consent of a contracting party may come either from the other party or from a third party (see e.g. UNIDROIT Principles, art. 3.11) presumed under these circumstances to be accessory to the other party. Of course the threat must have determined the signature of the threatened party or as UNIDROIT Principles express it, it should have left it "no reasonable alternative" but who can say that it was not the case when the witness declared: "As a result of that (his visit to the ambassador of [State A]) suddenly I got informed by the Ambassador that they wanted to seek a solution . . . then Mr [S] approached me and we tried to set dates to meet . . . [At the . . .1996 meeting which took place in his office] there was no controversy left . . . there was no discussion about the amount and there was no discussion about the fact that [Respondent] had to pay it. So the whole exercise in my office was to formalize and conclude something, and not a discussion . . ."

And the witness concluded ironically: "I informed people . . . that it's wonderful how correctly [State A] state companies interpret commercial law . . . " but the true conclusion is that his own understanding of law obviously does not take into consideration the elementary rule according to which the end does not justify the means. The party who has been victim of a threat may usually at law avoid the contract totally or partially and receive damages. The Arbitrator, using his powers of "amiable compositeur", considers however that it is fair and reasonable having regard to the circumstances to reduce by half the amount of damages which the Claimant was entitled to be paid under the Set-off Agreement.'