Cette affaire est née d'un contrat de licence conclu en 1999 entre un demandeur britannique et un défendeur néerlandais.

'63. [In] 2002 [Respondent] entered into insolvency proceedings in both the Netherlands and the United States. Coincidentally, it was also [in] 2002 that [Claimant] submitted its initial Request for Arbitration to the International Chamber of Commerce. It was nevertheless some considerable time thereafter before the arbitration was actively pursued.

64. The Dutch insolvency proceedings consisted of [Respondent] filing in Amsterdam a petition and a draft "Akkoord", i.e. a composition with creditors. [Claimant] submitted a claim to [Respondent]'s court-appointed administrator in respect of [Respondent]'s pre-petition debt under the [Contract] and that claim was accepted as an admitted claim. Ultimately, after unsuccessful challenge by one creditor, the Akkoord became binding on all creditors after being approved by the Dutch court. The scheme of the Akkoord was to give to creditors shares in a new [Respondent] American holding company [A] in satisfaction of their outstanding claims. Shares were allotted pro rata to the amount of each creditor's claim. However, [Respondent] declined actually to transfer to [Claimant] its allotted shares in [A] on the grounds that the [Contract] was absolutely void, as claimed in this arbitration, and that accordingly [Respondent] owed nothing. This prompted a court application by [Claimant]. The District Court ordered [Respondent] to transfer the shares. Although [Respondent] had to comply with the District Court order and did in fact transfer the shares to [Claimant], it also appealed. The Court of Appeal dismissed the appeal whereupon [Respondent] has appealed to the Supreme Court. That appeal is pending. Subsequent to the conclusion of the oral hearing before us we were provided with a translation of the Advocate General's opinion recently issued in that appeal and with the parties' observations on that opinion. However, for reasons which will become apparent our conclusions have not been affected by any points which await determination in that appeal.

65. Thus, the present position is that the [A] shares have been transferred to [Claimant]. Subject to the pending appeal before the Supreme Court, [Claimant]'s pre-petition debt, assuming there was one, has been extinguished and [Claimant] does not seek an award from us for any pre-petition sums. The Akkoord is, however, relevant to this arbitration in two respects. Firstly, [Respondent] seeks by counterclaim the return of the shares on the grounds that it never had any liability in the first place to [Claimant]; secondly, it was [Respondent]'s case before us that if we were to make a monetary award in favour of [Claimant] we should implement the cram down effect of the Akkoord by making some order confining [Claimant] to an entitlement under the Akkoord in respect of the sum awarded.

66. We must also mention the United States Chapter 11 proceedings. The US bankruptcy court assumed jurisdiction over [Respondent] because [Respondent] had some (albeit very modest) assets in the United States, because it had American subsidiaries and because many of its bondholders were in the United States. Hence, under its own rules the US court was able to make orders in respect of the [Contract] notwithstanding that [Respondent] is a Dutch company, the other contracting party is an English company and the contract is to be performed in the Netherlands, is subject to English law and has no connection at all with the United States. [In] 2003 [a US judge] made an order . . . in the US Bankruptcy Court for the [District] by which he authorised [Respondent] to "reject" the [Contract] with effect from [date]. [Claimant] appealed to the District Court. The appeal was apparently based on a suggested conflict between Dutch and American law. It was dismissed . . . A further appeal has been lodged by [Claimant] to the Court of Appeals for the [Circuit] and is currently pending.

67. Under American insolvency law the "rejection" of a contract is somewhat like a disclaimer under English insolvency law. It was common ground before us that under American law a "rejection" does not actually terminate a contract; its effect is to permit the debtor to break the contract and to confine the creditor to proving in the insolvency for accrued amounts and for damages, including loss of bargain damages, for the breach. We noted that in giving judgment in the District Court [the judge] said: "[the judge] was merely permitting [Respondent] to breach the [Contract]; he was not terminating the [Contract]. As [the judge] expressly held, the ramifications of that breach, and the remedies therefor, were to be resolved by the arbitrators in accordance with the arbitration provision in the [Contract] and under English law . . . The arbitrators will decide whether the Order is enforceable and what effect, if any, it is to be given."

68. Initially, it seemed that [Respondent] would be submitting to us that we should give direct effect to the US Rejection Order. However, as the arbitration proceeded the issues narrowed considerably. Ultimately, whatever the possible ramifications of the pleaded case [Respondent] only contended that the US Rejection Order was a factor in the discretionary mix to be considered in relation to [Claimant]'s claim for specific performance. [Respondent] accepted that this could be its only possible relevance under English law and that for all other purposes we should not have regard to it. Accordingly, the US Rejection Order plays in the event a fairly minor part in our decision.

. . . . . . . . .

Specific performance and the US Rejection Order

147. Specific performance is under English law a discretionary remedy. Before addressing other factors material to the discretion in the present case, we should deal, albeit relatively briefly, with the US Rejection Order to which we referred at paragraphs 66 to 68 above. As we there explained, [Respondent] eventually accepted before us that the only possible materiality of the US Rejection Order to any issue we had to decide could be as a factor in the discretionary mix.

148. Although [Respondent] abandoned the argument that English law required us to recognise the US Rejection Order such that there was a discharge of primary liability under the [Contract], we should consider the argument for two reasons:

a) because of [Respondent]'s argument that although English law does not require recognition to this extent, it does (or should) recognise the US Rejection Order in the context of determining whether or not there should be specific performance; and

b) because, in deference and respect to the US court, we consider that we should state briefly why we are unable as a matter of English law to give the effect to the US Rejection Order that was originally suggested by [Respondent] and why even [Respondent] was driven to recognise that it was not possible, consistent with high authority, for us to do. As will, we hope, become clear, the reason for non-recognition has nothing to do with a lack of respect for the US court or an unwillingness to give as much effect as possible to its judgments. English law both has such respect and does seek to give effect so far as possible to judgments of the US court. The reason lies in fundamental English law rules on the recognition of judgments in an insolvency context and the decisive impact of an English choice of law clause on this issue.

149. English law has had to consider the impact of foreign judgments in the context of insolvency proceedings in numerous cases over many years. It is unnecessary for the purposes of this award to trace the history of the conflicts of law rules on this matter in full. There have been a number of cases over a substantial period which illustrate how firmly English law has resisted recognition of a foreign judgment which purports to cancel a debt or claim from affecting an English law contract. We need only mention the decision of the House of Lords in National Bank of Greece and Athens v. Metliss [1958) AC 509. There, the question arose what, if any, effect should be given by the English court to a Greek moratorium which applied to the debt sued upon. Each member of the House of Lords was emphatic that the Greek moratorium was wholly irrelevant to a debt of which the proper law was English law. [Respondent]'s concession that the US Rejection Order in the present case did not have any direct effect on the payment obligations as a matter of English law was undoubtedly correct.

150. Although we cannot as a matter of English law simply give effect to the US Rejection Order, we are inclined to accept [Respondent]'s submission that we would be entitled nevertheless to treat it as a factor in exercising our discretion over specific performance. This would be consistent with a number of statements made by English judges in cases involving the effect of United States Chapter 11 proceedings on English liabilities. It is to be stressed that they all fall well short of saying that full recognition is to be afforded under English law to Orders made in Chapter 11 proceedings. Nevertheless, in Felixstowe Dock & Railway v. US Lines Inc. [1989] QB 360 Hirst J (as he then was), whilst declining to give recognition to a United States Chapter 11 Order, did say: "I would like to stress that the court would in principle always wish to co-operate in every proper way with an order like the present one made by a court in a friendly jurisdiction (of which the United States is a most conspicuous example)." To similar effect was Hoffmann J (as he then was) in Banque Indosuez SA v. Ferromet Resources Inc. [1993] BCLC 112 at 117: "This court . . . will do its utmost to co-operate with the United States Bankruptcy Court and avoid any action which might disturb the orderly administration of Inc. in Texas under ch. 11."

151. The question remains, however, what weight should be given to the US Rejection Order in the exercise of the discretion here. There are a number of factors which, in our view, mean that there is less need for caution in this case than there is in the more usual "anti-suit" injunction cases or disputes which directly affect the ability of the US court to conduct Chapter 11 proceedings. In this case, the Chapter 11 proceedings are over. Nothing in our Award will affect the US courts in any way that we can detect. Whether or not we give effect to the US Rejection Order, there will be no impact on the US court's procedure. Furthermore, although there was considerable argument and evidence before the US court concerning the Rejection Order, particularly on appeal, it focused more on procedural and jurisdictional than substantive matters. Finally, the US court has expressly said that the extent to which there should be recognition of the US Rejection Order is a matter to be determined by us, the arbitrators. It has to that extent exercised jurisdictional self-restraint, leaving us to give such effect to the Order as we see fit. That is a situation very different to the Felixstowe case where the US court had made an express order and the English court was being asked to (and in fact did) act in a manner likely to frustrate it. Our overall view is that, whilst the existence of the US Rejection Order might in theory have some relevance to an exercise of discretion under English law, in the particular circumstances of the present case it has little or no impact on the question whether specific performance is here an appropriate remedy.

Specific performance: general factors

152. [Claimant]'s main interest in this arbitration is undoubtedly a financial one. It wants to recover the contract debts which have accrued and those which will accrue. It is perhaps uncommon for pure money claims to be the subject of an order for specific performance: the paradigm specific performance case would arise in the case of a disposition of real property. We bear in mind that there is nothing in principle which precludes the making of an order for specific performance of a payment obligation: cf. Beswick v. Beswick [1968] AC 58. Nevertheless, we are not aware of any case in which the remedy has been deployed to compel the future payment of licence fees under an intellectual property licence (on penalty-under English law-of contempt of court if not complied with). A more usual course would be to obtain a judgment for the amount of past royalties, possibly coupled with a declaration as to the licensee's liability for the future.

153. In the course of the final oral submissions [Claimant] put before us a fairly lengthy and by no means straightforward-and in some respects necessarily contingent-form of order for specific performance which it asked us to make. To our mind the form of order presented to us illustrated some of the difficulties to which the making of an order for specific performance would give rise in the present instance. We have concluded that in the exercise of our discretion an order for specific performance would not be appropriate in the present case. A normal pecuniary award, as made in the vast majority of ordinary commercial arbitrations where a claimant is successful, is the appropriate order under this English law contract notwithstanding that we were told that Dutch law may more readily grant an order akin to the English remedy of specific performance. We have come to this conclusion for the following reasons.

154. Firstly, whilst the situations are not exactly comparable, we regard the speech of Lord Hoffmann in Co-operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd [1998] AC 1 as persuasive also in the present context. We would need considerable persuasion that an order to, in effect, carry a television channel would be regarded under English law as a suitable order to make. We have to say that we were not really impressed by the suggestion of damage to [service]'s reputation if carriage to [Respondent]'s subscribers were to stop. Secondly, it is not possible to tell what (if any) defences may arise to payment of future monthly fees. It is not possible to tell whether [Claimant] will inevitably be ready, willing and able fully to perform all of its own obligations under the [Contract] during the (uncertain) duration of the life of the [Contract]. If, for example, there was an interruption in the . . . service between now and the end of the [Contract] or [Claimant] failed to pay its required share of the marketing costs under the agreement, [Respondent] might (and we stress might) have defences to payment of certain of the licence fees or at least cross-claims giving rise to an arguable set off. We cannot proceed on the assumption that the performance in exchange for which the licence fees are payable would necessarily be undertaken by [Claimant]. The situation differs considerably from that in Beswick v. Beswick where there was nothing further for either the beneficiary of the annuity or the claimant seeking to enforce the annuity in her favour to do. Whilst the potential lack of mutuality of performance is not a conclusive factor, it is a matter to be taken into account: cf. Price v. Strange [1978] Ch 337. We do not suggest that there is any reason why [Claimant] should not perform its obligations, but we would be reluctant to exercise our discretion to grant an order of specific performance to one party where we cannot be certain that the other party will necessarily perform all its obligations under the agreement throughout its (potentially substantial) future life.

155. Next, we draw attention to the fact that the [Contract] as a whole contains some obligations which patently could never be suitable for an order of specific performance; we regard it as significant that the fulfilment of several of these obligations does require the cooperation of both parties. Whilst we accept [Claimant]'s evidence that thus far there has in fact been no problem of cooperation, we cannot be sure that this state of affairs will always continue in the future. Further, we would in any event regard an order for specific performance of contingent obligations which may or may not arise, e.g. payment of the early termination amount, as inappropriate. Finally, we take into account that the [Contract] may well in any event terminate fairly shortly under its own terms. Whilst [Claimant] urged this feature upon us as tending to show that an order for specific performance would not harm [Respondent] unduly, in our view it is more relevant as tending to show that there is less need to make what in English law would be the exceptional order of specific performance. In short, it is our view that the ordinary commercial law remedy of an award of a pecuniary amount is the right order in the present case.

The Akkoord

156. We refer to what we said about the Akkoord at paragraphs 63 to 65 above. The question whether [Respondent] would on its counterclaim be entitled to delivery up of those shares in [A] which were previously transferred to [Claimant] is entirely moot. Given our views, as we have expressed them, about the competition law issues in this dispute, the question does not arise. Accordingly, we do not need to, and do not, make any decision on the point. The question does, however, remain whether we should make some, and if so what, adjustment of a pecuniary award in favour of [Claimant] by reason of the Akkoord. In other words, should we as arbitrators making an award under an English law contract implement, as [Respondent] urges, any "cram down" effect of the Akkoord under Dutch insolvency law?

157. We propose to deal with the point fairly shortly. There was an interesting discussion before us on various questions of Dutch insolvency law. However, it is our firm view that we do not need to, and indeed should not, even attempt to make rulings on Dutch insolvency law.

158. [Claimant] makes no claim in this arbitration for any sums which accrued due to it under the [Contract] prior to . . . 2002 when [Respondent] entered into Dutch insolvency. It has received the shares in [A] under the Akkoord in satisfaction of any such entitlement. It is only post-insolvency debts, i.e. monthly fees falling due after . . . 2002, which it seeks to recover in full. We were most grateful to the distinguished Dutch law experts who gave evidence before us . . . By the end of their evidence it became clear that they were in agreement to this extent as a matter of Dutch law. First, neither the Akkoord nor any other event in the Dutch insolvency purported to terminate any liability under the [Contract]. Second, neither the Akkoord nor any other event in the Dutch insolvency had any effect on any post-insolvency claim. Third, it is a matter for English law as the proper law of the [Contract] to decide whether claims for monthly fees falling due after . . . 2002 are pre-insolvency or post-insolvency claims.

159. Of course, the [Contract] antedated . . . 2002 and, from that, [Respondent] sought to persuade us that any claim under the [Contract] would be a pre-insolvency claim. We are prepared to accept that, as appears from authorities cited to us, a contractual right to a future payment may well under English law be treated as a present asset, at least for some purposes. But it does not follow that a right to future payment falls to be treated as a pre-insolvency claim. As at 3 December 2002 [Claimant] had not accepted any repudiation. Accordingly, as a matter of English contract law [Claimant] had no claim under or for breach of the [Contract] other than in respect of amounts which had already accrued due. [Claimant] could not prove in any insolvency in respect of any amounts which might fall due under the [Contract] in the future. It would only have been entitled to do that if it accepted [Respondent]'s repudiation and thereby terminated the [Contract], thus becoming entitled to prospective loss of bargain damages. This did not happen and, indeed, still has not happened. It follows that the only claim which [Claimant] could have had as at . . . 2002 was a claim for unpaid monthly fees to that date. Claims for monthly fees falling due subsequently are all post-insolvency claims.

160. Moreover, even if we had agreed with [Respondent]'s submission that [Claimant]'s claims in this arbitration were pre-insolvency claims we would not have been willing to adjust our award on account of any provisions of Dutch insolvency law. Even in a purely domestic English context, if one of the parties were, say, in liquidation, arbitrators (or indeed a court) resolving a contractual dispute would not adjust any award (or judgment) to take account of the fact that creditors of the party in liquidation might only be entitled to a dividend in the winding up. The award or judgment would be for the full amount; it would then be for the insolvency court to determine the entitlement of all creditors, including the judgment creditor. Similarly, in the present circumstances our award should be for that to which [Claimant] is entitled under English law, and it would be a matter for the Dutch insolvency court to decide the extent to which such award should be enforceable.

161. Finally, we should also say that, although the arbitration clause in the [Contract] is widely drawn, we do have grave reservations whether questions of Dutch insolvency law can properly be said to fall within it. Given what we have said above, we do not need to decide the point. But we, as English law arbitrators, would be singularly ill qualified to decide issues of Dutch insolvency law. When the parties opted for English proper law of the contract, arbitration "in accordance with English law" and even a default English court exclusive jurisdiction clause . . . they would perhaps have been surprised to learn that they would thereby be entrusting decisions on Dutch insolvency law to the arbitrators.

162. It follows from the above that in our view the Akkoord has no effect on [Claimant]'s claims in this arbitration.'