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

- effet du rapport préexistant entre les parties

- nature du délit comme facteur déterminant

'201. As noted above, through Order No. 1 the Tribunal scheduled submissions from the parties on the question which law should apply to the merits of the disputes that are the subject matter of the present arbitration. . . .

202. In essence, the position taken by [Claimant] in its briefs was that Indian law is the law applicable to the 9 November 1995 Agreement, as the appropriate conflict of law rules point to application of the rule of the law with the closest connection to the contract. This law, [Claimant] argued, is the law of India. While noting that [Defendant] had not formulated the precise tort that [Claimant] was alleged to have committed and that the law applicable to tort would depend on the precise tort alleged, [Claimant] concluded that because the alleged torts had taken place in India, Indian tort law would also apply.

203. [Defendant], on the other hand, while agreeing that the law with the closest connection to the 9 November 1995 Agreement should be applied by the Tribunal, concluded that in a contract of sale, the closest connection was with the law of the state where the seller had its place of residence, namely Turkish law. It further argued that as the alleged tort liability of [Claimant] was closely linked to the conclusion and performance of the 9 November 1995 Agreement, the law applicable to the contractual relationship, i.e., Turkish law, also applies to tort.

204. On 22 December 1997, the Tribunal issued Order No. 9 on the Applicable Substantive Law, in which it decided the following:

For the foregoing reasons, the Arbitral Tribunal renders by majority the following decisions:

1. Determines that the law applicable to the Agreement executed between Claimant and Defendant on 9 November 1995 is Turkish law.

2. Reserves its decision regarding the law applicable to Defendant's counterclaims based on tort pending Defendant's provision of further and better particulars regarding its counterclaims.

3. Reserves all further decisions.

205. Order No. 9 was issued as an Interim Arbitral Award on 19 March 1998. [Arbitrator nominated by Claimant] dissented from the findings of the majority, opining that the law applicable to the 9 November 1995 Agreement between the parties is Indian law, as the Agreement is, in his view, more closely connected with India than with Turkey. As to the tort alleged by [Defendant], he opined that, as the tort is not specified, the appropriate course would be either to throw out [Defendant]'s counter-claim insofar as it is based on tort, or alternatively to hold that it is not possible to make an order on the applicable substantive law regarding tort. In his view, even if a specified tort claim arises out of contractual obligations, the applicable law should also be Indian law.

206. At the Hearing for Oral Argument, the parties agreed that, in light of the strong similarities between Turkish and Swiss commercial law, any reference to Swiss law was to be understood as a reference to Turkish law, unless expressly otherwise indicated. . . .

207. As noted above, in the Interim Award on Applicable Law, the Tribunal reserved its decision with regard to the law applicable to the tort claims advanced by [Defendant]. In light of the contentions made in [Defendant]'s Post-Hearing Memorial and at the Hearing for Oral Argument, as well as [Claimant] responses thereto, the Tribunal hereby proceeds to decide this question.

(b) The law applicable to [Defendant]'s counterclaims in tort

208. The Tribunal's Interim Arbitral Award of 19 March 1998 set out the method according to which the applicable law is determined in an arbitration taking place in The Netherlands. In particular, it referred to Article 1054(2) of the Netherlands Arbitration Act 1986 as the starting point for the determination of the applicable law, which provision reads as follows:

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.

209. In its Interim Arbitral Award of 19 March 1998, the Arbitral Tribunal decided that it would apply both Dutch conflict of law rules and the conflict of law rules generally applied by international arbitrators in similar cases in determining the applicable law (see Interim Award at § 68). Accordingly, the Tribunal will follow this method in determining the law applicable to [Defendant]'s counterclaim in tort.

210. As noted above, the law governing the November 1995 Agreement was held by the Arbitral Tribunal in its Interim Arbitral Award to be Turkish law. In addition, it has been common ground between the parties since the Hearing for Oral Argument that unless a party specifically refers to Turkish law as being different from Swiss law, any reference by the parties to Swiss law would be deemed to be a reference to Turkish law. . . .

211. As a preliminary matter, the Arbitral Tribunal must identify the tort of which [Defendant] complains in this case. The tort is said by [Defendant] to lie in the following acts:

• The allegedly slanderous accusations that [Claimant] officers made against [Defendant] prior to the purported termination of the Agreement by [Claimant] . . .;

• The bringing by [Claimant] of a criminal complaint for conspiracy and fraud against [Defendant] almost at the same time that [Defendant] and [Claimant] agreed on an extended delivery schedule . . .;

• The alleged breach of the rules of good faith (Article 2 CC), and in particular the alleged breach of the duty of loyalty that contracting parties owe each other, taking into account recent Swiss cases such as van Deuren, Swissair Beteiligungen, Grossen, SFM . . .

212. [Defendant] has relied on the application of Turkish law to its counterclaim in tort, invoking an exception to the lex loci delicti commissi rule based on a pre-existing relationship between the parties. . . . [Claimant] has denied that the alleged tort is connected to the Agreement. The Tribunal notes, however, that this objection seems to be directed at the jurisdiction of the Arbitral Tribunal rather than the applicable law . . .

213. More specifically, as mentioned before, [Defendant] disputes the allegations made in the criminal complaint and regards them as slanderous. [Claimant]'s tort is said by [Defendant] to have been committed by these allegedly slanderous accusations, as well as [Claimant]'s bringing of a criminal complaint containing such allegations against [Defendant].

214. In addition, also as mentioned before, [Defendant] regards the bringing of the criminal complaint by [Claimant] as a breach of the rules of good faith governing the behaviour of parties to an agreement, which allegedly amounts to a tort. It contends that [Claimant] breached the rules of good faith in that [Claimant] on the one hand agreed to postpone the dates for the deliveries of . . . originally set out in the November 1995 Agreement and on the other hand decided to bring a criminal complaint against [Defendant]. The Tribunal understands [Defendant]'s argument to be that the criminal complaint does not amount to a tort per se, but becomes a tort in the factual context in which it was brought and in light of the obligations binding the parties under the Agreement.

215. [Defendant] does not, however, contend that the complaint was tortious because it caused Mr. [X] and Mr. [Y] to be wrongfully imprisoned. The Tribunal therefore infers that [Defendant] does not rely on a tort of false imprisonment.

216. The Tribunal notes that [Claimant]'s behaviour appears to be closely linked to [Defendant]'s delays in delivering . . . under the 9 November 1995 Agreement and to the course of action that [Claimant] believed that it was entitled to adopt as a consequence of the said delays. This is clear from the allegations made by [Claimant]'s officers in the criminal complaint, which essentially focus on [Defendant]'s delay in performing and failure to perform the Agreement.

217. The Tribunal notes therefore that [Claimant]'s alleged tort is closely related to the non-performance of the November 1995 Agreement by [Defendant]. In effect, the facts that [Defendant] alleges amount to a tort represent [Claimant]'s response to [Defendant]'s own delay in performing the Agreement. Indeed, the Tribunal notes that there is no essential or relevant fact relied upon by [Defendant] as the factual basis for its counterclaim in tort that is unrelated to its delay and ultimate non-performance of the Agreement.

218. Accordingly, for the purpose of determining the proper law of the alleged tort, the Tribunal notes that the alleged tort is represented by [Claimant]'s reaction to [Defendant]'s own delay in performing the Agreement, which reaction [Defendant] found objectionable. In English terminology, the alleged tort may be described as "contractual negligence". (see Mustill & Boyd, Commercial Arbitration, London 1989, 2nd ed., p. 117: "Most instances of claims in tort submitted to arbitration relate to 'contractual negligence': i.e. the breach of a duty of care arising from a contract.") It is therefore more than "closely connected" with the Agreement: it is mostly, if not entirely, a reaction by [Claimant] to [Defendant]'s delay and non-performance.

219. The Tribunal now turns to the choice-of-law rules in The Netherlands, after which it shall examine the practice of international tribunals.

Dutch Conflict of Law Rules

220. In its Interim Arbitral Award of 19 March 1998, the Arbitral Tribunal pointed out that, whereas the traditional rule in tort matters is the lex loci delicti commissi . . ., there are two important exceptions to that rule.

221. The first exception, which is prima facie relevant for present purposes, is the application to the claims in tort of the law governing the pre-existing relationship between the parties and is termed "accessoire aanknoping " in Dutch. This exception and the rationale behind it have already been set out in the Interim Award . . . In the present case, the pre-existing relationship between the parties is the November 1995 Agreement.

222. The second exception to the lex loci delicti commissi rule is party autonomy, i.e., the application to the claims in tort of the law chosen by the parties. This exception is irrelevant for the present purposes as the parties made no choice as to either the proper law of the contract or the proper law of the alleged tort.

223. According to Dutch scholars, the exception of accessoire aanknoping may be applied only where a close connection is found to exist between the tort and the pre-existing relationship (see Strikwerda, Inleiding tot het Nederlandse Internationaal Privaatrecht, Groningen 1995, at p. 202 ¶ 182 (". . . onrechtmatige daad nauw verbonden . . . met een andere rechtsverhouding . . ." [the tort is closely connected with another legal relationship]). The exception of accessoire aanknoping was adopted by Hof [Court of appeal] 's-Hertogenbosch in its decision of 8 January 1973 (see Strikwerda at AK II.679). The Dutch Supreme Court has not determined whether this rule is part of the Dutch system of conflict of laws (see Strikwerda at 203-4).

224. The question whether it is necessary that the parties to the tort claim are the same as the parties to the pre-existing agreement for the exception to apply, makes no difference in the present circumstances, as [Claimant] and [Defendant] are the parties to the Agreement and the counterclaim in tort was brought by [Defendant] against [Claimant].

225. According to Dutch conflict of law rules and Dutch commentators, therefore, the foregoing considerations - in particular the close relationship between the alleged tort and the Agreement - point to the applicability of the exception to the principle of lex loci delicti based on the pre-existing relationship between the parties.

226. The Tribunal therefore turns to the conflict of law rules generally applied in international arbitration.

Conflict of Laws Rules Generally Applied in International Arbitration

227. In a seminal paper on torts in international arbitration, Professor Reymond relates that arbitrators sitting in international arbitrations generally find that claims in contractual negligence are governed by the proper law of the contract and that the proper law of the contract exerts a form of vis attractiva on claims resting on the law of tort that relate to a breach of the contract in dispute between the parties (see Reymond, "Conflits de lois en matière de responsabilité délictuelle devant l'arbitre international", Travaux du Comité français de droit international privé 1988-1989 at 97-106; 107-119 (Discussion); 100; 102). The law governing the contractual aspects of the dispute is regarded as having a strong claim to be applied to claims sounding in tort when the latter claims arise out of an alleged breach of the contract. Professor Reymond expresses this point as follows:

la jurisprudence arbitrale fournit en tout cas un premier critère: lorsque, dans le contentieux relatif à l'exécution ou à la liquidation d'un contrat, surgit, à titre principal ou reconventionnel, une demande fondée sur la responsabilité délictuelle, l'arbitre la résout volontiers selon le droit applicable au contrat, en tout cas lorsque le problème extra-contractuel s'est posé à l'occasion de l'exécution du contrat ou en relation avec celui-ci. Il y a en quelque sorte extension du champ d'application du droit qui régit le contrat, considéré comme le droit le plus proche du problème extracontractuel (see Reymond at 104).

[In English translation this passage reads as follows:

. . . arbitral case law provide a first criterion [for the determination of the law applicable to claims in tort]: where, in a dispute relating to the performance or rescission of an agreement, a claim arises, whether as a main claim or a counterclaim, based on extra-contractual liability, arbitrators tend to refer to the system of law applicable to the contract, in any event where the issue in tort arose in connection with the performance of the agreement in dispute between the parties or in relation to said agreement. There is, as it were, a kind of extension of the scope of application of the proper law of the contract, which is regarded as closest to the issue in tort.]

See also in this regard ICC Award No. 6320 of 1992, to which reference was made in the Interim Award . . .

228. Two further factors appear to be relevant at this juncture. First, Article 1054(2) of the Dutch Code of Civil Procedure does not make a distinction between contractual and tortious matters. This provision refers rather to the law to be applied by an arbitral tribunal in making its decision and thereby appears to determine the law applicable to the dispute as a whole, whether the claims to be adjudicated upon sound in contract or tort.

229. Article 1496 of the French Code of Civil Procedure, on which the Dutch provision was modelled, also makes no such distinction, stating that "the arbitrator shall decide the dispute in accordance with the law chosen by the parties". The Tribunal notes that both provisions are intended, in the absence of a choice by the parties of the law governing their agreement, to confer on the arbitrators the same degree of discretion whether the law to be determined is that relating to the contract or to a tort. (See also the comment by Professor Fouchard and the question put to Professor Reymond, in Reymond at 114.)

230. The second factor is that in its Interim Award, the Tribunal determined that Turkish law was the law applicable to the November 1995 Agreement (the "pre-existing relationship" in this case with respect to tort) on the basis that the Agreement had its closest connection with Turkish law. This factor is relevant because the rationale behind the lex loci commissi rule is to apply the law of the country with which the tort has the most significant relationship. Because the alleged tort in this case is said to consist of actions taken by [Claimant] in reaction to [Defendant]'s delay in performing its contractual obligations and as the tort alleged resembles "contractual negligence", the alleged tort has a strong link to the law applicable to the Agreement .

231. Professor Reymond concludes in his study that the proper law of the tort is determined under separate rules only where the tort in question bears no relationship to the agreement in dispute between the parties. See Reymond at 104. See also Derains, Le processus arbitral CCI - VIIIème partie: Le choix du droit applicable au contrat et l'arbitrage international, The ICC International Court of Arbitration Bulletin, 1995, I, 10-18 at 17. 1

232. The lex loci delicti commissi rule has been applied in two reported ICC awards and another international arbitral award (see ICC Award No. 3043 of 1978, Clunet 1979, 982, note Derains; ICC Award No. 1990 of 1970 (Clunet 1974, 897, note Derains) and an Award of the Czech Arbitration Chamber of 1977 (Yearbook 1979 at 195). The first of these awards involved a claim of "contractual negligence", whereas the second related to claims of unfair competition and the third to issues of unjust enrichment.

233. In light of the foregoing considerations, the Tribunal concludes that Turkish law shall govern [Defendant]'s counterclaim in tort, on the basis that the counterclaim is represented by [Claimant]'s reaction to [Defendant]'s delay and non-performance in supplying the promised cargo. In this respect, the Tribunal regards it to be significant that there is a strong relationship between [Defendant]'s counterclaim and the contractual relationship of the parties.

234. The Tribunal´s conclusion is strengthened by the following considerations. First, splitting the applicable law between the contractual claims and [Defendant]'s counterclaim in tort would be artificial in light of the fact that the claims by both parties arise out of the same set of factual circumstances. Second, this conclusion must accord with the legitimate expectations of the parties, as they did not choose a system of law to govern their agreement and Turkish law was found by the majority of the Arbitral Tribunal to have the closest connection with the Agreement.

235. Finally, the application of one system of law to all the claims and counterclaims of the parties also contains a pragmatic element. While applying two different systems of law to contractual and extra-contractual claims is not impossible, it is certainly complicated. As such, it can only be justified by objective considerations, such as the fact that the tort is not closely connected with the performance or non-performance of the agreement under dispute. For the foregoing reasons, this is not so in the present case.'

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Editor's note: This article was published in English and in French.