Le différend, né entre deux sociétés d'Amérique du Nord et d'Amérique centrale, concernait le refus de la défenderesse de céder des actions à la demanderesse conformément à leurs contrats de cession de titres. Aux termes de l'acte de mission, l'arbitre unique devait déterminer si la demanderesse avait droit à ces actions, quelle était la convention entre les parties qui constituait le fondement contractuel de la demande, si la demanderesse avait respecté les engagements financiers qu'elle aurait pris et si la demanderesse avait été informée des tentatives de la défenderesse visant à obtenir des fonds supplémentaires. Conformément à la clause compromissoire entre les parties, l'arbitre devait trancher les différends ex aequo et bono.

'4.1 What are the terms of the agreement to arbitrate?

Claimant bases its claim on the Second Agreement . . . In the Course of the proceedings it became apparent that it is only this Second Agreement which forms the basis of Claimant's claim . . . and, within this Agreement, only the part which deals with the [X site]. This Second Agreement provides for arbitration according to the following terms:

Article 20. (Dispute Resolution, Applicable Law) "Any disputes, controversy or claim arising under, out of or relating to this contract, including without limitation, its formation, validity, binding effect, interpretation, performance or breach, as well as non-contractual claims, shall be referred to and finally determined by arbitration in accordance with the Arbitration Rules of the International Chamber of Commerce. The arbitral tribunal shall consist of one arbitrator. The place of arbitration shall be Zurich, Switzerland. The dispute, controversy or claim shall be decided by the arbitrator ex aequo et bono."

Respondent accepts that this dispute, as presented by Claimant, falls within the scope of the above arbitration clause (Terms of Reference, Section 4, at the end).

These arbitration proceedings are governed by the mandatory provisions of the Swiss Arbitration Act, i.e. Chapter 12 of the Swiss Private International Law Act ("PILA"). Article 187 PILA reads as follows: "1. The arbitral tribunal shall decide the case according to the rules of law chosen by the parties, or in the absence thereof, according to the rules of law with which the case has the closest connection. 2. The parties may authorize the arbitral tribunal to decide ex aequo et bono."

Consequently, the authority conveyed to the Sole Arbitrator is also covered by the mandatory provisions of Article 187 (2) PILA.

Based on Section 8.3 of the Terms of Reference, the Sole Arbitrator invited the Parties to develop the principles they expect to be applied under the concept of "ex aequo et bono" . . . Claimant submitted its position as to that issue . . ., with various references to scholarly writing. Respondent agreed to such presentation . . .

. . . . . . . . .

4.3 How far does the authority conveyed to the sole arbitrator go to adjudicate this case "ex aequo et bono"?

4.3.1 "ex aequo et bono" and/or "amiable compositeur"

Article 17 (3) of the Rules makes a distinction between those two concepts since it states:

"The Arbitral Tribunal shall assume the powers of an amiable compositeur ex aequo et bono only if the parties have agreed to give it such powers." (Emphasis added)

What is then the difference, if any?

A vast majority of leading authors in this field expects the amiable compositeur to still apply rules of law, however, with the authority to correct the outcome, according to his conveyed discretion. An arbitrator applying "ex aequo et bono" enjoys a wider area of authority, limited only by the principles of public policy, which need to be respected in any case (Karrer, Basle Commentary, N 191 to Article 187 PILA; Blessing, The New International Arbitration Law in Switzerland: A Significant Step towards Liberalism, Journal of International Arbitration, 1988, page 64; Andreas Bucher, Die neue internationale Schiedsgerichtsbarkeit in der Schweiz, 1989, page 120, N 318; and, most recently and in detail, Poudret/Besson, Droit comparé de l'arbitrage international, 2002, page 652 et seq, in particular page 654/55, N 711/12). But it should also be noted that there are authors who do not see significant differences between those two types of authority conveyed to an arbitrator (particularly Craig/Park/Paulsson, International Chamber of Commerce Arbitration, 2000, § 8.05/06, page 76/77).

But the subsequent arguments shall reveal that the above discussion is, for the purpose of this case, of academic nature only.

4.3.2 "ex aequo et bono" as task of the arbitrator

A general consensus reigns that an arbitrator appointed to decide a case according to the principle of "ex aequo et bono" is also bound to decide this case accordingly (Karrer, op. cit., N 199 to Article 187 PILA; Lalive/Poudret/Reymond, Le Droit de l'Arbitrage Interne et International en Suisse, 1998, N 24, to Article 187 PILA). Furthermore, an arbitrator deciding under the principle of "ex aequo et bono" must submit his arguments in a reasoned award (BGE 120 II 168).

4.3.3 "ex aequo et bono", public policy and Article 17(2) of the Rules

As shown above the limits of an arbitrator deciding under the authority of "ex aequo et bono" are the principles of public policy. One of those principles is the doctrine of "pacta sunt servanda" (Berti/Schnyder, Basle Commentary, N 73 to Article 190 PILA; BGE 120 II 166). The arbitrator should, therefore, in his decision respect the terms as established in the agreement between the parties. The parties to the agreement should see that their "fair and reasonable expectations" are respected (Blessing, Debate on Equity, in ASA Bulletin 1991, page 132 and op. cit., page 64; Poudret/Besson, op. cit., N 718; Lalive/Poudret/Reymond, op. cit., N 21, in fine to Article 187 PILA; Sandrock "Ex aequo et bono"- und "amiable composition"-Vereinbarungen: ihre Qualifikation, Anknüpfung und Wirkungen, in Jahrbuch für die Praxis der Schiedsgerichtsbarkeit, 1988, page 132).

This is also the view of Claimant . . . to which Respondent has consented . . . Moreover, the Sole Arbitrator is also bound by the terms of the agreements between the parties through Article 17(2) of the Rules: "In all cases the arbitral tribunal shall take account of the provisions of the contract and the relevant trade usages."

The facts that this provision of Article 17 of the Rules comes first and that the reference to "amiable compositeur" and "ex aequo et bono" is contained in the subsequent provision of Article 17(3) of the Rules only is not to be interpreted in a way that an arbitrator acting under the Rules and applying "ex aequo et bono" is not bound to the terms of the agreement between the parties (Bühler/Jarvin, in Weigand, Practitioners Handbook on International Arbitration, 2002, N 23 to Article 17, page 222).

An arbitrator deciding under the authority of "ex aequo et bono" should, to the extent the wording of the agreement is clear, not alter the terms of the agreement; he may do so only under very specific circumstances, in particular if he is to apply the further principle of "clausula rebus sic stantibus" (Craig/Park/Paulsson, op. cit., § 8.05, page 75/76; Sandrock, op. cit., page 133/134).

4.3.4 Conclusion

Therefore, and in accordance with the understanding between the Parties, and within the scope of Article 17(2) of the Rules, the Sole Arbitrator shall analyse the terms of the Second Agreement and if he finds no ambiguity in the wording, apply the terms of the Second Agreement - irrespective of the fact that the Sole Arbitrator has been conveyed the authority to adjudicate this case under "ex aequo et bono".

. . . . . . . . .

5.2 Guidelines of the sole arbitrator for the assessment of such costs and expenses

Whilst the Sole Arbitrator deciding under the principle of "ex aequo et bono" enjoys a large area of discretion in allocating costs of proceedings and expenses incurred for such proceedings he still deems it appropriate in this particular case not to deviate from the generally accepted principle of "loser pays".

Both Parties have requested to be compensated for their costs and expenses incurred . . . and have submitted their pertaining documentation. Consequently, the Sole Arbitrator should not disregard the fair and reasonable expectations of the Parties as to that issue and accord a compensation to the party who has prevailed on the merits of the case.

With regard to the reservation made by Respondent to reduce Claimant's request for compensation by . . . and by adjusting Respondent's claim for compensation accordingly, thus making both claims equal, to which Claimant objected, the Sole Arbitrator notes that Claimant had to bring up more of an effort to present its case since it had to shoulder the main burden of proof, whereas Respondent basically could content itself by denying Claimant's allegations - which, in essence, it did.

Therefore, the Sole Arbitrator deems the compensation in the amount of . . ., as requested by Claimant, to be fair and equitable under the prevailing circumstances of this case and, consequently, no adjustments should be made in this amount claimed for compensation.'