Le différend concerne un contrat d'achat/vente entre un acquéreur indien (demandeur) et un vendeur turc (défendeur). Le demandeur a résilié le contrat en raison du défaut de fourniture par le défendeur de la quantité convenue conformément aux spécifications du contrat. Le défendeur soutient que la résiliation est nulle. Le tribunal arbitral a déterminé la question du droit matériel applicable par une ordonnance émise à la majorité de ses membres qui a ensuite été incorporée dans une sentence intérimaire, dont des extraits sont reproduits ci-dessous.

• Loi applicable

- decline de la lex loci delicti

- effet du rapport préexistant entre les parties

- nature du délit comme facteur déterminant

Sentence intérimaire

'The Parties' Contentions

A. Claimant's contentions

. . . . . . . . .

33. With regard to the law applicable to tort, Claimant contends that the English rules of conflict of laws have been adopted in India and "for that reason the law of Torts as determined by English conflict of laws rules should decide the proper law".

34. As an initial matter, Claimant argues that Defendant has not formulated the precise tort that Claimant is alleged to have committed. As a result, the law applicable to tort will depend upon the precise tort alleged.

35. Without prejudice to this objection, Claimant states that several considerations are relevant.

- First, in English conflict of laws rules whether an act done in a foreign country is a tort depends on the combined effect of the law where the act is done and the law of England, and in addition (in exceptional circumstances) the law of another country if this has the most significant relationship to the occurrence and the parties.

- Second, an act done in a foreign country is a tort and actionable in England only if it is both actionable as a tort in England (or is an act that if done in England would be a tort) and actionable according to the law of the foreign country where it was done, although a particular issue may be governed by the law of the country with the most significant relationship (with respect to that issue) to the occurrence and the parties.

36. Considering these rules, because the alleged torts took place in India, Claimant concludes that Indian tort law applies.

37. In its Reply Submission, Claimant says that there is no applicable rule of "accessory attachment" in the English conflict of law system and "[t]here is no reason for determining the applicable law in respect of the alleged Tort law either by the Swiss Private International law or the Dutch Rule of Conflict" (p. 9). Rather, the principle to be followed should be the lex loci delicti commissi, for the following reasons.

- First, the law of the place where the events occur is the only law that can attribute legal consequences to them.

- Second, application of that rule would accord with the legitimate expectations of the parties.

- Finally, it is the prevailing doctrine on the Continent of Europe and in the United States, as well as in England and India.

38. Claimant concludes, however, that the torts alleged by Defendant are "unintelligible" and requests the Arbitral Tribunal to determine whether there is any cause of action in respect of the torts alleged by Defendant at § (e) of its Response and Counterclaim before determining the question of applicable law in respect of torts liability.

B. Defendant's contentions

. . . . . . . . .

44. With respect to the applicable law of tort in connection with a breach of contract, Defendant contends that "in the absence of an express choice of law . . . the claims brought by the injured party against the tortfeasor are governed by the law applicable to such contract". In support of this contention, it cites principles of Swiss and Dutch private international law and a reported ICC decision. It argues that the torts liability of Claimant is closely linked to the conclusion and performance of the 9 November 1995 Agreement between Claimant and Defendant and concludes that the law applicable to the contractual relationship - i.e., Turkish law - applies also to tort.

45. Defendant notes in addition that Turkish commercial law is practically identical to Swiss law and for that reason Swiss doctrine and case law could also be used to interpret Turkish provisions.

46. In its Reply Submission, Defendant states that the rule of lex loci delicti is "superseded when the tort occurs in connection with the breach of a contract", in which event " the claims brought by the injured party against the tortfeasor are governed by the law applicable to such contract". Accordingly, Turkish law should apply also in respect of tort.

The Tribunal's Findings

A. Applicable Conflict of Laws Rules

47. As an initial matter, the Tribunal is to determine whether it is to apply conflict of laws rules, and if so which rules, in order to determine the applicable substantive law.

48. Claimant argues that Indian conflict of laws rules are to be applied, which, it argues, are the same as English conflict of laws rules. Defendant, on the other hand, relies on article 13(3) of the ICC Rules and article 1054(2) of the Netherlands Arbitration Act and seems to argue that Dutch conflict rules or conflict rules as generally applied by international arbitrators are to be applied.

49. The question as to how the substantive applicable law should be determined is rather complex. Such matter is likely to give rise to confusion unless various steps in the process are clearly distinguished. The process can essentially be described according to the following four steps.

50. Step 1 . The starting point is the Netherlands Arbitration Act 1986. This Act is controlling in view of the fact that the arbitration takes place at Amsterdam and article 1073(1) of the Act provides that the provisions of the articles 1020-1073 (Title I) shall apply if the place of arbitration is situated within The Netherlands.

51. The Netherlands Arbitration Act appears to contain provisions for determining the applicable substantive law. Article 1054(2) of the Act provides:

If a choice of law is made by the parties, the arbitral tribunal shall make its award in accordance with the rules of law chosen by the parties. Failing such choice of law, the arbitral tribunal shall make its award in accordance with the rules of law which it considers appropriate.

52. Article 1054(2) contains two rules for determining the substantive applicable law. The primary rule is the law chosen by the parties. The alternative rule, which applies in the event that the parties have not chosen an applicable substantive law, as in the present case, is the law which the arbitral tribunal deems appropriate. The alternative rule provides for the so-called "voie directe" [direct choice], which means that the arbitral tribunal may determine the applicable substantive law without going through the intermediate step of determining which conflict of laws rules it deems applicable.

53. Article 1054(2) of the Netherlands Arbitration Act is modelled after article 1496 of the French Code of Civil Procedure, which is contained in the French arbitration law applicable to international arbitration.1 It is also drafted in view of the modern practice prevailing in international arbitration. In the Explanatory Memorandum, the Minister of Justice observes in this respect:

In case such a choice of law is lacking, the arbitrators are not obliged, as is prescribed in article VII of the Geneva Convention of 1961, "to apply the proper law under the rule of conflict that the arbitrators deem applicable". The draft Act omits the detour via the rules (of conflict of laws) that are deemed applicable. As is the case under the French Act, according to the second paragraph [of article 1054], the arbitrators are empowered to make a direct choice of the rules of law applicable to the dispute itself. This is in conformity with the practice prevailing in international arbitration. 2

54. The following steps 2 through 4 need not be taken if the parties have agreed on an applicable law. On the other hand, if no choice of law is made by the parties, as happened in the present case, the applicable law is to be determined according to steps 2 through 4.

55. Step 2 . The second step is necessary in the present case since the parties have agreed on the applicability of the ICC Arbitration Rules and those rules also contain provisions for determining the applicable substantive law. To this end, article 13(3) of the ICC Rules provides:

The parties shall be free to determine the law to be applied by the arbitrator to the merits of the dispute. In the absence of any indication by the parties as to the applicable law, the arbitrator shall apply the law designated as the proper law by the rule of conflict which he deems appropriate.

56. It should be noted that, whilst the primary conflict of laws rule in article 1054(2) of the Act and article 13(3) of the ICC Rules is substantially similar, the alternative conflict rule is different. Article 13(3) of the present version of the ICC Rules (1988) namely reverses the "voie directe " [direct choice] of article 1054(2) of the Act into a "voie indirecte " [indirect choice].

57. Conceptually, article 13(3) of the ICC Rules constitutes a contractual replacement by the parties for the conflict of laws rules contained in article 1054(2) of the Netherlands Arbitration Act. 3

58. Considering that the alternative conflict rule of article 1054(2) of the Act differs from the rule contained in article 13(3) of the ICC Rules, the rather theoretical question arises whether the Act allows the parties to deviate from article 1054(2) in this respect. The provisions of the Netherlands Arbitration Act are mandatory unless the Act specifically allows the parties to agree otherwise. Mandatory provisions in the Act prevail over any provisions in arbitration rules which are in violation thereof. The provisions of the second part of article 1054(2) of the Act do not allow the parties to agree otherwise. Strictly speaking, therefore, the alternative conflict rule contained in article 13(3) of the present ICC Rules should be ignored.

59. However, the alternative conflict rule contained in article 13(3) of the ICC Rules can be viewed as forming part of the primary conflict rule of article 1054(2) of the Act (i.e., "If a choice of law is made by the parties, the arbitral tribunal shall make its award in accordance with the rules of law chosen by the parties"): the alternative conflict rule of article 13(3) is a method agreed to by the parties for arriving at the law chosen by them, be it that they have mandated a third person (i.e., the arbitral tribunal) to make the choice for them. As we will see below, in practice it scarcely makes any difference whether either conflict rule is applied.

60. The Tribunal notes that the above (theoretical) conflict will no longer arise under the latest version of the ICC Arbitration Rules, effective 1 January 1998 (which is not applicable in the present case). Article 17(1) of the 1998 Rules harmonizes the conflict of laws rules of the ICC Rules with article 1054(2) of the Netherlands Arbitration Act (and many other modern arbitration laws):

The parties shall be free to agree upon the rules of law to be applied by the Arbitral Tribunal to the merits of the dispute. In the absence of any such agreement, the Arbitral Tribunal shall apply the rules of law it determines to be appropriate.

61. Step 3 . Following the alternative conflict rule contained in article 13(3) of the ICC Rules, the Tribunal must determine which rules of conflict it deems appropriate. The question which conflict of laws rules may be resorted to in the present case is discussed below.

62. Step 4 . On the basis of the rules of conflict chosen by the Tribunal, the tribunal will determine which substantive law applies.

63. The traditional rule for determining which system of conflict of laws rules should be applied is to apply the conflict of rules system of the forum. That rule is still followed by the courts in the majority of countries, including The Netherlands.

64. With respect to international arbitration it is argued that it has no forum and, hence, the system of conflict of laws rules as applied by the courts at the place of arbitration need not be applied in an international arbitration taking place in that country. However, as explained above, the Netherlands Arbitration Act adopts basically the traditional rule for international arbitration in The Netherlands since it specifically sets forth conflict of laws rules for determining the law applicable to the substance of the dispute (i.e., article 1054(2) of the Act).

65. That being said, there is little difference in practice as regards methodology between the alternative conflict rules contained in article 1054(2) of the Act and article 13(3) of the ICC Rules. As mentioned before, article 1054(2) of the Act provides for the "voie directe " [direct choice] whilst article 13(3) of the ICC Rules imposes a "voie indirecte " [indirect choice]. That difference does not matter so much in practice. As it is rightly pointed out by the late Professor J.C. Schultsz with respect to article 1054(2) of the Act:

If no law has been chosen by the parties, arbitrators are free to determine the applicable rules of law. There is no "intermediate stage" where arbitrators must consider which conflict of laws rules they deem applicable as there is in Article 28 UNCITRAL Model Law. It is submitted, however, that there is no intrinsic difference: arbitrators cannot, in international cases, apply cumulatively the domestic laws of all countries which have connections with the case. As soon as there is a divergence between these laws, they must make a choice one way or another and that forms part of conflict of laws technique. [footnote omitted] 4

66. In other words, under the direct choice rule, arbitrators must still apply some conflict of law rule for determining the applicable substantive law. The only difference would seem to lie in the choice of the system of the conflict of laws rules. Under the indirect choice method, the arbitrators must expressly determine which system (national or international) they deem applicable. On the other hand, under the direct method, arbitrators may simply chose conflict rules they deem fit, without being bound by one particular system.

67. On the other hand, the application of Indian or English (and, for that matter, Turkish) conflict of laws rules would be excluded. India and Turkey may be considered in connection with the question whether the law of either country applies as substantive law to the merits. The conflict of laws rules of either country, however, do not come into play for determining whether the substantive law of either country is to be applied in view of the Dutch and international dislike of the theory of "renvoi ".

68. Considering the foregoing, the Tribunal will apply both Dutch conflict of laws rules and the conflict of laws rules as generally applied by international arbitrators in similar cases. The "voie directe " of article 1054(2) of the Act and the reference to conflict of laws rules in article 13(3) of the ICC Rules do not forbid such an application. The Tribunal notes, however, that these conflict rules do not substantially differ from the Dutch conflict rules which are described in the next section.

. . . . . . . . .

135. The determination of the law applicable to [Defendant]'s counterclaims in tort is based, first of all, on the general considerations set out in §§ [55] et seq. above as the applicable conflict of laws rules.

136. Accordingly, the Arbitral Tribunal must determine which rules of conflict it deems appropriate (see also Step 3 at § [61] above).

137. In so doing, the Arbitral Tribunal will apply both Dutch conflict of laws rules and the conflict of laws rules as generally applied by international arbitrators in similar cases (see also § [68] above).

138. Traditionally, the Dutch conflict of laws for torts is based on the lex loci delicti rule whereby claims arising out of a tort are in principle based on the law of the country in which the tort took place.

139. This principle is, however, open to a number of important exceptions due to the steady decline of the lex loci delicti principle, not only under the law of the Netherlands, but also from a wider perspective based on comparative law, as summarized below.

140. The preeminent role of the lex loci delicti rule has been the object of increasing criticism as from the 50s. The movement against the lex loci delicti commissi rule started in the United States of America in the writings of commentators such as David Cavers, Albert Ehrenzweig, Willis Reese and Brainerd Currie.

141. The then existing choice of law rules, including the lex loci delicti commissi, were said to be mechanical in operation and to take no account of the policy considerations underlying the substantive rules of law between which a court was to be called upon to choose.

142. The evolution of the conflict of laws in the United States took new impetus in 1963, when the Court of Appeals of New York decided in Babcock v. Jackson that the lex loci delicti commissi was to be discarded. 5

143. This was the first reported decision in which a court had adopted the new approach to the conflict of laws propounded by the commentators referred to above. The after-Babcock consisted of a gradual spreading of these theories to areas other than the tort law and to jurisdictions other than New York.

144. Eventually, the ideas discussed in the so-called "U.S. conflicts revolution" spread across the Atlantic. They could only be considered with major qualifications in Europe due to the need for certainty underlying the civil law systems based on a codified set of conflict of laws rules.

145. Be that as it may, although these ideas do not appear to have had direct influence on the cases reported in the Netherlands, 6 their effect was felt nevertheless as the role of the lex loci delicti was increasingly reduced over the time in a number of European jurisdictions, most notably of which the Netherlands7 and Switzerland. 8

146. The reasons for the decline of the lex loci delicti rule are manifold and may be summarized as follows.

147. Firstly, as a rule originally used to exercise jurisdiction in criminal matters and applied mutatis mutandis as a conflict of law rule to tort claims, the rule is mainly based on personal liability and fault. However, the substantive law of an increasing number of States no longer require "fault" as an essential ingredient of a tort. The emphasis is more and more on the aggrieved party's right to compensation and less and less on the defendant's "fault".

148. Secondly, the relevance of the "place of tort" as a connecting factor has lost its significance as a consequence of technological evolution. Often the place of tort is fortuitous and therefore it fails to reflect any real connection between the tortious relationship between the parties and the system of law of the country in which the tort took place.

149. The trend away from lex loci delicti was emphasized by the making of new choice of law rules for special torts: tort tends to be regarded no longer as one, all-embracing category or source of liability, and specific rules for specific torts (product liability, traffic accidents, etc.) have come into being in the meantime, sometimes as a consequence of an international treaty and sometimes through new statutes on the conflict of laws.

150. The Hague Convention on the Law Applicable to Traffic Accidents of 4 May 1971 sets out the lex loci delicti rule in its article 3, but goes on in its articles 4, 6 and 7 to make provision for exceptions to that rule.

151. The Hague Convention on the Law Applicable to Product Liability of 2 October 1973 has effectively discarded the lex loci delicti as a rule. The main choice-of-law rule is contained in articles 4 and 5, and a subsidiary role for lex loci delicti is to be found in article 6 almost as an ultima ratio . Article 9 contains a further exception to the lex loci delicti rule.

152. In addition to the existence of special rules for specific torts which are no longer exclusively based on the lex loci delicti rule, there is evidence of a trend away from the lex loci delicti rule even without those conflict of laws rules with [sic] deal not with specific torts, but with torts in general.

153. An example is the draft (EC) Convention on the Law Applicable to Contractual and Extra-Contractual Obligations, which eventually became the EC Rome Convention, 1980. 9 The drafters eventually decided to expedite the preparatory works by concentrating solely on contractual obligations and this is why the Rome Convention on the Law Applicable on [sic] Contractual Obligations of 1980 contains no provisions on tort in its present (final) version. However, the authors of the first drafts of the Convention did include torts and did have to decide whether the lex loci delicti was to be regarded as a rule, and, if so, to which exceptions that rule would be open. The relevant provisions of the draft Convention were contained in article 10 which read as follows:

Non-contractual obligations arising out of an event which has resulted in damage or injury shall be governed by the law of the country in which that event occurred.

However, if, on the one hand, there is no significant link between the situation arising from the event which has resulted in damage or injury and the country in which that event occurred, and, on the other hand, the situation has a closer connexion with another country, then the law of that other country shall apply.

Such a connexion must normally be based on a connecting factor common to the victim and the author of the damage or injury or, if the liability of a third party for the acts of the author is at issue, it must normally be based on one which is common to the victim and the third party.

Where there are two or more victims, the applicable law shall be determined separately for each of them. 10

154. The two most important exceptions to the lex loci delicti rule in The Netherlands (and, for that matter, a number of other countries) are as follows:

(i) the application to the tort of the law governing the pre-existing relationship between the parties. 11

(ii) party autonomy.

155. As regards (i), the pre-existing relationship exception may be summarized as follows. Whenever a tort is committed by a party against another and amounts to a breach of duties existing between those same parties and arising out a relationship binding on the parties prior to the commission of the tort (such relationship may, for example, be a contract), claims in tort are then based on the law which governs said pre-existing relationship.

156. As a matter of Dutch law, the law governing the pre-existing relationship between the parties will also govern the tort provided, however, that the tort and the pre-existing relationship are closely connected.

157. Whether a tort is closely connected with a pre-existing relationship between the parties can only be established taking into account all the relevant circumstances of the case.

158. As regards (ii), one important factor is the identity of the parties to the contract with those involved in the tort.

159. At this juncture one has to turn to the practice of international tribunals with special regard for ICC awards.

160. In ICC Award no. 6320 of 1992, the agreement under dispute contained a choice-of-law clause in favour of a national system of law, which the Award does not reveal. One of the claims asserted by the claimant was in damages based on RICO (Racketeer Influenced Corrupt Organizations Act). The arbitral tribunal held that such a claim would not be governed by United States law, but by the national system of law on which the parties had agreed in their agreement. The relevant part of the Award reads as follows:

The Tribunal need not determine what the status of a RICO claim such as one brought by claimant would be under United States law. Suffice it to confirm that the characterisation of such RICO claim as delictual under United States law would not alter the result for a claim brought before an international arbitral tribunal which, in the event that the parties have provided that the dispute is to be decided under a particular national law, must apply this law also to issues of a delictual nature. This in any case when an "extra-contractual" issue presents a link itself with respect to the contract's performance, where it can be said that the scope of application of the law governing the contract is extended because it is the law most closely connected with the extra-contractual issue.

161. In sum, the emerging exception to the lex loci delicti in a situation in which the parties are bound by a pre-existing relationship such as a contract is to the effect that claims in tort are governed not by a separate system of law, but by the system of law which applies qua proper law of the contract, provided that the tort claim is closely connected with the contract.

162. It is not clear, at this stage of the arbitral proceedings, where exactly the Defendant draws the line between counterclaims sounding in contract and counterclaims sounding in tort.

163. To the extent that the Defendant complains of the breach of rights, which breaches qualify as a tort as opposed to a breach of contract, a distinction is to be made depending on the relationship that such a tort has with performance by Claimant of the Agreement.

164. If such an alleged tort is connected with the Agreement in a sufficiently close way, Turkish law would appear to be in principle applicable on the basis that the pre-existing relationship between the parties, i.e., the Agreement, is governed by Turkish law.

165. If such an alleged tort is not connected with the Agreement in a way which is sufficiently close, then the law of the country in which the tortfeasor acted or the law of the country in which the aggrieved party suffered the damage is to govern the counterclaims based on tort.

166. Consequently, the Arbitral Tribunal reserves its decision on the law applicable to tort on the basis of further and better particulars regarding the counterclaims from Defendant.

167. One caveat should be added on the role of Indian law. Allegations that a party acted in breach of Indian provisions, such as foreign exchange regulations, can only be substantiated by an indication of the contents of such provisions and by proof by one party that the other failed to comply with such provisions. However, the consequences of such breaches as a matter of contract or tort between the parties shall be governed by the law applicable to contract (i.e., Turkish law) or tort, as the case may be.'

Opinion dissidente

'27. The Arbitral Tribunal is agreed that the Respondent has not set out in any intelligible form the tort alleged by the Respondent and, in my opinion, unless that tort is specified the question of applicable substantive law in respect of such tort cannot be determined. It is not as if the same law will be applicable, whatever the Tort alleged.

28. As far as I can see, the Arbitral Tribunal is not called upon to decide a hypothetical question as to what would be the law applicable to the Tort which the Respondent might specify until that is done. The function of the Arbitral Tribunal is to decide the questions which arise before it and discuss the law in so far as it is necessary for that purpose. It is not a part of our function to lay down the law in the abstract or on a hypothetical footing with a view to guide either party. Any observations made by us in doing so may, however unwittingly, serve as an indication to the concerned party, that if it wants a particular law to be applied, it must allege or specify the tort in a particular way and that could not possibly be the intention of the Tribunal.

29. In my opinion, as the Tort alleged by the Respondent is not specified by the Respondent in any intelligible form, only two courses are open to the Arbitral Tribunal; one is to throw out the counter claim of the Respondent in so far as it is based on Tort as the tort is not specified or alternatively, to hold that it is not possible to pass any order on the applicable substantive law in respect of Tort as the tort is not specified, making it clear that the alleged tort must be specified to enable the Arbitral Tribunal to pass any order on the law applicable to such Tort.

30. I may clarify that, in my opinion, even if the Tort which may be specified arises out of contractual obligations the law applicable would still be Indian law, as that is the law applicable to the contract.'

1
Article 1496 of the French Code of Civil Procedure provides: "L'arbitre tranche le litige conformément aux règles de droit que les parties ont choisies; à défaut d'un tel choix, conformément à celles qu'il estime appropriées." English translation: The arbitrator shall decide the dispute according to the rules of law chosen by the parties; in the absence of such a choice, he shall decide according to the rules he deems appropriate.

2
Memorie van Toelichting [Explanatory Memorandum], submitted by the Minister of Justice to the Dutch Parliament on 11 July 1984, Doc. No. 18 464, reprinted in Tijdschrift voor Arbitrage, 1984, no. 4A, page 19 at page 40.

3
See article 1020(6) of the Act, providing: "Arbitration rules referred to in an arbitration agreement shall be deemed to form part of that agreement."

4
J.C. Schultsz, Legislation in the Netherlands and International Arbitration, 93 Mededelingen van de Nederlandse Vereniging voor Internationaal Recht (86) pp. 19-20.

5
12 N.Y. 2d 473; 240 N.Y.S. 743; 191 N.E.2d 279; 95 A.L.R.2d 1.

6
R. van Rooij and M.V. Polak, Private International Law in the Netherlands (1987) p. 137

7
See, in particular, Th. M. de Boer, Beyond Lex Loci Delicti. Conflicts Methodology and Multistate Torts in American Case Law (1987).

8
Imhoff-Scheier/Patocchi, Torts and Unjust Enrichment in the New Swiss Conflict of Laws (1990).

9
R. van Rooij and M.V. Polak, Private International Law in the Netherlands (1987) p. 139.

10
Reprinted in Lipstein (Ed.), Harmonisation of Private International Law by the E.E.C., Institute of Advanced Legal Studies (1978) p. 143.

11
This principle is termed accessoire aanknoping in Dutch, an exception which exists in a number of other jurisdictions.