La défenderesse, une entité de droit public d'un pays d'Asie occidentale, a conclu un contrat avec une agence de publicité d'un pays d'Europe occidentale en vue de publier une annonce dans la presse. L'annonce publicitaire a été dûment publiée mais la défenderesse a omis de payer le prix convenu. La demanderesse a engagé une procédure d'arbitrage afin de recouvrer le principal, les intérêts et les frais. Les parties étaient convenues dans leur contrat de nommer l'arbitre amiable compositeur, avec pour mission de trancher l'affaire conformément aux principes de l'équité.

'1. There is no doubt that [Claimant] published the advertisement of [Respondent] required under the Contract. This is recognized by [Respondent] in the aforesaid fax . . . and attested by the production of a copy of the advertisement.

Therefore, the price . . . is due pursuant to the Contract. As an amiable compositeur, the Arbitral Tribunal has the power to vary an amount due under the Contract. However, [Respondent] has not alleged any fact which could justify a reduction of the price. It has even formally accepted that the price is due. In light of these circumstances, the Arbitral Tribunal finds that the price should remain unchanged.

2. The Contract provides that interest is due for late payment of the price at the rate of 1.8% per month from the date on which payment was due until full payment. The date on which the price was due was June 3rd 1999. The amount of interest estimated by [Claimant] to be due as of the day of the Request for Arbitration was . . . In the aforesaid fax . . ., [Respondent] has agreed that interest accrued on the price was due and has further recognized the figure of . . . to be correct.

The contractual interest rate, as interpreted by the parties, appears to be vastly in excess of interest rates currently enforced in dollar-based international loans. Allowing [Claimant] to collect from [Respondent] the amount of interest requested in the Request for Arbitration would be inequitable against [Respondent].

The Arbitral Tribunal thinks that its powers of amiable compositeur allow it to vary or disregard contractual provisions having the effect of unfairly or inequitably penalising a party for the consequences of its contractual breaches. Similarly, the Arbitral Tribunal is entitled, when a contractual provision may be interpreted in several ways, to interpret that provision in the manner producing the best results from the standpoint of equity.

Thus, the Arbitral Tribunal is of the view that its powers of amiable compositeur allow it to reduce the amount due under a contractual default interest formula if this amount would be inequitable, or to interpret or apply a contractual default interest formula in a manner yielding equitable results. Particularly so in circumstances where, as in the present case, the party owing the interest does not appear to have negotiated, or had an opportunity to negotiate the details of the contractual terms, but instead to have simply signed off on a standard order form presented by the other side.

The fact that Claimant produced evidence showing that Respondent agreed to the computation of interest made by Claimant does not deprive the right of an Arbitral Tribunal as amiable compositeur to use such powers when considering the evidence. [Respondent], having not been represented by counsel in the present arbitration proceedings, may not have fully realised the implications of the amiable compositeur provision of the Contract and may therefore have accepted the reading of the interest clause made by [Claimant] without perceiving that this could be challenged. The Arbitral Tribunal is thus of the view that it is just and equitable, and within its powers of amiable compositeur, to give little weight to Respondent's admission.

On February 25 2003, the one month US$ Libor rate was 1.33750 and the one year rate was 1.38375 (see the Financial Times edition of February 26). In the opinion of the Arbitral Tribunal, equity is best served by interpreting the contractual interest formula as saying that the rate of 1.8% per month referred to in the Contract is to be understood as a one month rate in a manner consistent with the practice of international financial markets, namely as a per annum rate computed monthly on a compounded basis.

3. The evidence adduced by [Claimant] shows that expenses incurred by professionals to collect the debt amounts to US$ 3,530. This amount appears reasonable and it is equitable in the view of the Arbitral Tribunal that these costs should be borne by [Respondent]. In the aforesaid fax . . ., [Respondent] agrees to the principle that it should bear debt collection costs incurred by [Claimant].

4. The amount of US$ 5,000 claimed for the cost entailed by the enforcement and recognition of the arbitral award is not justified, be it for legal or equitable reasons. This item of damage is only potential at the time of the making of the award. If it were to be sustained by [Claimant] in the future, it would not flow directly from a breach of the Contract. It would be therefore outside the scope of the powers of the Arbitral Tribunal to indemnify [Claimant] for such kind of damage. The claim is therefore denied.

5. As [Claimant] is the party prevailing in this arbitration, the Arbitral Tribunal decides that [Respondent] should pay the cost of arbitration. [Respondent] will therefore reimburse to [Claimant] the cost of arbitration, which the Court has fixed at . . ., which [Claimant] has already paid to the ICC.

Furthermore, [Claimant] is entitled to reasonable legal costs incurred for prosecuting this arbitration. The amount of US$ 5,000 claimed by [Claimant] appears reasonable and is therefore awarded to indemnify it for its reasonable legal costs incurred for the arbitration.'