Une société n'étant pas partie à cet arbitrage a commandé deux biens d'équipement industriel à la défenderesse (commande de 1996). Cette société tierce a ensuite commandé un troisième bien d'équipement (commande de 1997), dont elle a transféré la commande à la demanderesse, une société de leasing. La tierce partie a ensuite été déclarée en cessation de paiement et a été liquidée. La défenderesse a décidé de retenir une partie de l'équipement à titre de garantie pour ses créances impayées auprès de la société tierce. La défenderesse a fait valoir qu'elle n'avait pas accepté le transfert de la seconde commande de la société tierce à la demanderesse et que cette commande n'était qu'un élément de la première, qui avait été passée entre la tierce partie et elle-même. Le tribunal arbitral était notamment appelé à déterminer si la seconde commande était un contrat séparé ou une partie de la première commande, si la seconde commande avait été valablement transférée, si la défenderesse avait respecté ses obligations nées de la seconde commande, si la demanderesse avait dûment exécuté cette commande et si elle avait droit aux sommes demandées. Le tribunal arbitral a d'abord examiné le contenu et l'effet de la disposition contractuelle l'autorisant à trancher ex aequo et bono. Il s'est prononcé de la manière suivante, à la majorité de ses membres.

'IV. The Arbitral Tribunal's power

38. Claimant referred in its Request for Arbitration to the arbitration clause contained in Order 1996 and referred to in Order 1997, which reads as follows:

"General terms of delivery - Arbitration

Yours - and ours - general terms of delivery are cancelled by mutual agreement. In case of disagreement or interpretation on this contract the parties agree to apply to an arbitration panel composed of 3 members, nominated according the rules of the International Chamber of Commerce, having seat in Paris and deciding pro bono et aequo according the said rules." (Order 1996)

"Guarantee and General Terms of Delivery - Arbitration according to our last order as mentioned above." (Order 1997)

39. In its letter addressed to the Secretariat of the International Court of Arbitration of the ICC . . . Counsel for Respondent acknowledged the receipt of the Request for Arbitration and added the following:

"Although Respondent has not signed an arbitration agreement with the Claimant, the Respondent accepts to submit the present dispute to arbitration pursuant to the arbitration clause invoked by the Claimant. Thus, the Respondent accepts the constitution of a three member Tribunal, and Paris as the place of arbitration."

40. In the Claimant's view, the dispute relating to the 1997 Order has to be resolved through arbitration as stated in the terms of the arbitration clause contained in the 1996 Order, in the sense that the Arbitral Tribunal has the power to decide ex aequo et bono .

41. In respect of the merits of the claim, Claimant notes that the Arbitral Tribunal, when deciding ex aequo et bono, is not bound by any national law or rules of law. It may find guidance in the general principles of law that are contained in the Vienna Convention on the International Sale of Goods of 1980. Claimant adds that the Parties to the 1996 and 1997 Orders accepted to exclude the application of their respective General Conditions, which both contain a clause choosing a national law . . . In doing so, says Claimant, the parties to these Orders have concluded a negative choice of law clause which prevents the Arbitral Tribunal from the application of any of these national laws.

42. While it alleges that it had not signed an arbitration agreement with the Claimant, and that the latter has not become a successor in right to [third company], Respondent accepts, for reasons of convenience, the jurisdiction of the Arbitral Tribunal constituted under the Rules. Respondent shares Claimant's view that the arbitrators have the power to rule ex aequo et bono as provided for in Article 17.3 of the ICC Rules. Respondent notes, however, that such power does not relieve the arbitrators from deciding which law applies to the contract, as the Parties had not expressed an intention to exclude the application of a particular law. The Arbitral Tribunal should therefore follow the Rome Convention on the Law Applicable to Contractual Obligations of 1980 (Art. 4.2), which leads to the application of [the law of the Respondent's State].

43. The Tribunal accepts that the authorization to decide ex aequo et bono does not place the Tribunal in a legal vacuum, completely unrelated to the legal regime or particular national law to which each party to the 1996 and 1997 Orders must have referred when determining its conduct in concluding and performing its rights and obligations. In this respect, arbitrators, when deciding ex aequo et bono, may refer to the applicable substantive law, but they are not bound to apply it (see, inter alia, Fouchard/Gaillard/Goldman, Traité de l'arbitrage commercial international, No. 1506, 1653). Thus, equity and fairness may require that the Tribunal takes the pertinent provisions and solutions (Iratio scripta ) offered by such applicable law into consideration.

44. Such an approach is not excluded, in this dispute, by the fact that the parties to the 1996 and 1997 Orders have agreed not to apply their respective General Conditions, as this is argued by Claimant. [Third company] and [Respondent] did certainly not agree on the applicable law. In the Tribunal's view, this question was simply left open, to the extent it may be relevant although the Arbitral Tribunal was to receive the power to decide I ex aequo et bono. No evidence has been presented to the Tribunal that would demonstrate that the parties had the intention to restrict the Tribunal's power to the effect that it must strictly abstain from taking any guidance from the ratio scripta contained in national law.

45. When taking a particular national law into consideration (as explained under paragraph 43 above), an Arbitral Tribunal invested with the power to decide ex aequo et bono is not bound to apply each particular rule of such law (except for public policy reasons which are not relevant in this dispute). The Tribunal's decision has to be based on equity considerations which may lead to solutions different from those resulting from the applicable law. Such an approach is important and useful when a transaction involves parties from different countries and legal cultures. In such a case, equity and fairness may require not to confront one party with legal solutions which are familiar to the other party only.

46. In its pleadings, Respondent raised the objection that the Tribunal's power to decide ex aequo et bono should not go so far as to be applicable to the determination of the proper party to the 1997 Order. Although the arbitration clause in the 1996 Order does not provide for such a limitation of the Tribunal's power, Respondent affirms that the scope of the power of an amiable compositeur is limited to the substance of the contract and that the question whether [Claimant] became a party to the contract is an unrelated and different matter, outside the scope of such power.

47. The Tribunal notes, however, that Respondent's initial declaration to accept to submit the dispute to arbitration, as expressed in its letter of 7 May 2002, did not contain such a restriction, which therefore cannot be added unilaterally at a later stage. In reply to the question raised under the first item of the Terms of Reference, the Tribunal finds, therefore, that its power to decide ex aequo et bono does extend to the question whether the 1997 Order was validly transferred from [third company] to Claimant. The issue raised by Respondent is, anyhow, not as controversial than [sic] it appears to be when referring to the Parties' pleadings. As this will be developed below, the Parties agree upon the basic legal requirements in relation to such transfer (i.e. that some form of approval by Respondent either expressed or implied or through conduct is necessary), whereas they disagree when it comes to establish the pertinent factual elements that may, or may not, meet the legal conditions underlying such a transfer.

48. The Tribunal concludes therefore that it has the power to decide this dispute ex aequo et bono according to Article 17.3 of the ICC Rules and that in using its power it does not have to determine any specific applicable law. However, it may refer to the applicable law without being bound to apply it. This conclusion and the explanation given above are sufficient to deal with the first issue determined by the Terms of Reference.

. . . . . . . . .

X. The Tribunal's decision on Claimant's claims

152. It results from the above considerations that the Tribunal rejects Claimant's principal claim and its first subsidiary claim. The Tribunal accepts Claimant's second subsidiary claim in an amount that has yet to be determined x aequo et bono, but which is not higher than . . ., representing the fourth and the fifth instalment concerning the third [item of equipment].

153. The Tribunal understands that each Party has suffered a loss in [third company]'s insolvency. As explained above, such loss amounts for Claimant to . . . and for Respondent to . . ., according to the Parties' respective statements. When considering ex aequo et bono the amount to be awarded to Claimant in respect of its second subsidiary claim, the Tribunal cannot take into account these particular amounts, which are related to contracts different from the legal relationship involved in this dispute, and which concern a third party . . . not represented in this arbitration.

154. The Tribunal's mission is focused on the third [item of equipment]. Respondent accepted Claimant's payment while it benefited from retaining the third [item of equipment] as a security in respect of [third company]'s outstanding payments for the two first [items of equipment]. In its relation with [third company], Respondent was partly compensated for [third company]'s insolvency through the retention of the third [item of equipment] and its later sale to [company B]. In its relation with Claimant, Respondent made a double benefit to the extent it received full payment for the [equipment] from Claimant and a second payment of its (reduced) price from [company B]. Respondent argues that Claimant is not a party to the 1997 Order and that [Respondent] therefore was entitled to retain the [equipment] as a security for the outstanding payments under the 1996 Order which are, as it says, of no concern to Claimant. On the other hand, it rejects Claimant's request to be reimbursed for the two last instalments although it used the price received for the resale of the [equipment] from [company B] to cover outstanding payments from [third company] under the 1996 Order. The Tribunal holds that Respondent's attitude in this respect is not in conformity with equity and fairness.

155. The third [item of equipment] has been fully paid by Claimant. Respondent caused Claimant to pay the fourth and fifth instalment . . . although it knew that under the 1997 Order, which was alone to be considered by Claimant, these payments were not to be made by Claimant as long as the [item of equipment] had not been delivered. Claimant was deprived of the ownership of the [equipment], although it had paid fully its price. Claimant must accept, however, that the third [item of equipment] also served the purpose of securing [third company]'s payments for the two first [items of equipment]. It has been noted above that Claimant may not have paid the two last instalments if it had been reasonably diligent in safeguarding its own interests, in particular in requesting reliable proof of the delivery of the third [item of equipment]. In light of these circumstances, the Tribunal decides ex aequo et bono that this attitude of the Claimant shall have the effect of reducing by one third Respondent's liability . . .

156. Claimant requested to be awarded interest in an amount of minimum 5% per year on the amounts representing the fourth and the fifth instalments as from the date of their respective payment. Both Parties agreed that the Tribunal may decide the issue on interest also on an ex aequo et bono basis. From both relevant dates, the Tribunal chooses the middle date of 15 November 1999. Therefore, the amount to be awarded to Claimant is . . . plus interest at a rate of 5% per annum until the date of payment.

157. The Tribunal has thus conclusively dealt with the sixth item listed on its Terms of Reference.

XI. Fixing and allocation of the costs of the arbitration

158. Both Parties have submitted their statement on the costs involved in these proceedings. The Tribunal takes into account that the Claimant has been successful only with respect to a part of its claims. When considering further that the Tribunal's decision is to be made on anex aequo et bono basis, which includes the allocation of costs, the Tribunal finds appropriate that each Party will bear its own costs, expenses and counsel fees, and that the costs of the arbitration proceedings shall be shared equally between the Claimant and the Respondent. The advance on costs having been paid in equal shares, no reimbursement from one party to the other shall be made.

159. The Tribunal has hereby decided upon the seventh and last item of its Terms of Reference.'