Le défendeur/consultant, une entreprise danoise d'ingénierie, a conclu un contrat pour la fourniture d'assistance technique au demandeur/client, une entreprise allemande de construction qui envisageait de soumettre une offre pour un projet de construction en Allemagne. Le projet de construction a été attribué au demandeur/client qui a poursuivi sa collaboration avec le défendeur/consultant aux termes d'un contrat complémentaire relatif aux détails de la conception. Pendant la construction, le demandeur/client a engagé des frais supplémentaires à la suite de sous-estimations des quantités dans son offre dont il imputait la responsabilité au défendeur/consultant. En conséquence, le demandeur/client a entamé une procédure d'arbitrage contre le défendeur/consultant afin de recouvrer ces frais. Au cours de l'arbitrage, les parties n'étaient pas d'accord sur la question de savoir si leur accord incorporait le contrat type de la FIDIC portant sur les relations client/ingénieur (« Livre blanc ») et, dans l'affirmative, si un délai de prescription d'un an, figurant à la partie II de celui-ci, était valable au regard du droit allemand et, par conséquent, si la demande du demandeur/client était ou non forclose.

Contrat type de la FIDIC portant sur les relations client/ingénieur-conseil (le 'Livre blanc »), deuxième édition (1991). Clause 17.

'6.2.3 . . . A draft FIDIC Agreement was handed over by [Respondent] to [Claimant] during a meeting on 30 May 1995. In the FIDIC Agreement Clause 17 it is stated that

[N]either the Client nor the Consultant shall be considered liable for any loss or damage resulting from any occurrence unless a claim is formally made on him before the expiry of the relevant period stated in Part II, or such earlier date as may be prescribed by law.

In Part II [Respondent] had by hand written one (1) year as the Duration of Liability and that it was to be reckoned from May 22, 1995. Part II was communicated to [Claimant] in the meeting during 30 May 1995 or shortly thereafter. The draft FIDIC Agreement is not mentioned in the minutes from the meeting held on 30 May 1995.

. . . . . . . . .

6.2.4 [Claimant argued as follows:] . . . However, contract conditions at variance to normal practice have not been agreed by the Parties through the performance of the contract. [Respondent] could not expect [Claimant] to have agreed on contract terms that, in comparison to the equilibrium that should normally prevail in such contracts, created a considerable unbalance through the alleged acceptance of conditions likely to cause a considerable damage to [Claimant].

In particular the conditions contained in Clause 17 and 18.1 of Part II would create such unbalance. In the guide to the FIDIC Agreement ten (10) years is recommended as figure in the statute of limitation. Furthermore, it is suggested that the duration should begin to elapse at the completion or termination of the services. This is to be compared with the one (1) year term from the beginning of the services as [Respondent] alleges was agreed between the Parties. This period is unreasonably short and it was possible that [Respondent]'s liability would have been covered by the statute of limitation prior to the completion of [Respondent]'s services.

. . . . . . . . .

6.2.6 [The Arbitral Tribunal found as follows:] . . . The Parties had earlier made their intention clear to enter into the FIDIC Agreement and had now agreed on the wording by the exchange of various drafts and views on individual clauses. [Claimant] must have been aware that [Respondent] presumed that the Agreement was valid between the Parties, even without joint signatures on the FIDIC Agreement. The exchange of the written drafts fulfils the requirement of a written contract under German Law (§ 127 BGB). [Claimant] had therefore to object before 30 June 1995 if it did not wish to be bound by the typed version of the FIDIC Agreement sent to [Claimant]. [Claimant] never objected and is therefore bound to the FIDIC Agreement by way of passivity.

Thus, the majority of the Arbitrators find that the FIDIC Agreement in its entirety was validly agreed between the Parties.

6.3 What are the legal effects of the time- and amount limitations in Clauses 17 and 18.1 of the FIDIC Agreement?

[Respondent] has contended that the claim under these proceedings has been time barred since the one (1) year limitation period of Clause 17 has elapsed. [Claimant] has contested this contention, even if the Arbitral Tribunal should find that the FIDIC Agreement had been concluded by the Parties.

6.3.1 [Claimant]'s Legal Grounds

[Claimant argued that the time bar in Clause 17 in Part II was void under German law.]

6.3.2 [Respondent]'s Legal Grounds

Any claim that [Claimant] may have had on [Respondent] is unenforceable, since the one (1) year limitation period in Part II, as validly agreed between the Parties, had elapsed when [Claimant] filed the request for Arbitration.

[Respondent argued that the time bar in Clause 17 in Part II was valid under German law.]

6.3.3 Findings of the Tribunal

The Arbitrators, as per 6.2 above, have found that the entire FIDIC Agreement was validly agreed between the Parties. Thus, the issue here is whether the limitation period of one (1) year stated in Clause 17 in Part II can be validly applied or if the statutory limitations in German law should be applied instead.

[Respondent] undertook to deliver a work result to [Claimant]. [Respondent] had to perform the Tender Design calculations and deliver them to [Claimant] before 30 June 1995. The Arbitrators have therefore qualified the FIDIC Agreement as agreed by the Parties as a works contract.

The Arbitrators have not found that the limitation period agreed by the Parties should be void according to German law. A reduction of the statutory limitation period is permissible according to § 225 sent. 2 BGB [Bürgerliches Gesetzbuch (the German Civil Code)]. The reduction of the limitation period was proposed by [Respondent] and was accepted by [Claimant] as is evidenced by the Annex to the letter of 13 June 1995. The reduction has thus been agreed between two business parties. The reduction of the period of limitation agreed by two business parties with equal bargaining power cannot be deemed unreasonable or create an unreasonable imbalance between the parties.

The reduction does also not contravene the principles of § 9 of the AGBG [Allgemeines Bürgerliches Gesetzbuch (the Austrian Civil Code)], since the AGBG is not applicable. The insertions in Part II have to be specifically drafted by the parties for each individual contract. The provisions of Part II have no meaning unless their details are entered into the blanks by the Parties. The insertion in respect of the reduction of the period of limitation is therefore no preformulated general condition but a specific provision, which has been individually agreed upon by the Parties.

[Claimant]'s claim was thus time barred before the request for Arbitration was filed to the ICC and the claim is therefore not recoverable.'