En 1996, une société allemande (le demandeur) souscrivit un contrat de vente de produits pharmaceutiques à une société russe (le défendeur). L'acheteur s'abstint de payer l'intégralité de la somme qu'il devait au vendeur en contrepartie des produits livrés conformément à leur contrat. Le vendeur engagea une procédure d'arbitrage afin de recouvrer le solde. Le tribunal arbitral retient comme droit applicable la règle pertinente des Incoterms et les usages du commerce.

'3.1 Applicable Rules of Law

3.1.1 Claimant's position

Claimant contends that, under the German Conflict of Law Rules, German law is applicable to the Claimant's claims pursuant to Article 28 of the Civil Code Introduction Act. Claimant adds that, pursuant to such provision, the applicable law is determined by the location of the headquarters of the party having the "characteristic" obligation under the Contract, i.e. the Seller. Claimant further states that since its headquarters are located in Berlin, Germany, German law is applicable . . .

Claimant asserts that the UN Convention on the International Sale of Goods ("CISG") should be applicable to its claims, since the CISG has been incorporated into German as well as Russian law . . .

3.1.2 Respondent's position

Respondent has not stated its position.

3.1.3 Tribunal's discussion

Article 17 of the ICC rules states the following:

1

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 which it determines to be appropriate.

2

In all cases, the Arbitral Tribunal shall take account of the provisions of the contract and the relevant trade usages.

The Contract does not provide for an applicable law. It only refers to CIP ("Carriage and Insurance paid to...") [Russian town] (Article 1.1 of the Contract).

The Sole Arbitrator finds that since no agreement between the parties was reached concerning the applicable rules of law, the "appropriate" rules of law have to be determined. In doing so, the Sole Arbitrator will consider the provisions of the Contract and the relevant trade usages. The Sole Arbitrator has examined the wording of Article 17(1) of the ICC rules and finds that such wording does not bind the Sole Arbitrator to apply the CISG or a domestic law e.g. German law.

Therefore, the Sole Arbitrator decides that the sole rules of law applicable to the Contract and the present dispute will be the CIP terms and trade usages.

3.2 Claimant's claim for payment

3.2.1 Claimant's position

Claimant claims payment of . . ., i.e. the unpaid balance of its first shipment under the Contract of the pharmaceutical products . . . made on August 21, 1996. Claimant further states that, in accordance with Article 4.1 of the Contract, such amount became due and payable 90 days after the delivery date, i.e. on December 1, 1996 at the latest . . .

3.2.2 Respondent's position

Respondent has not stated its position.

3.2.3 Tribunal's discussion

After examining the Contract, the Sole Arbitrator finds that Claimant was under an obligation to deliver the pharmaceutical products agreed upon in the Contract (Article 1.2 of the Contract . . .)

The Sole Arbitrator notes that Claimant has performed its obligation in this respect by shipping these products to Respondent on August 21, 1996. Indeed the CIP rules provide that the seller must "deliver the goods into the custody of the carrier".

The Sole Arbitrator further notes Claimant issued invoice no. . . . in connection with this delivery on August 19, 1996 in the amount of . . . and according to Article 4.1 of the Contract, payment for such products delivered to Respondent was to be made within 90 days from the delivery date. In the present case, the payment was due and payable at the latest on December 1, 1996.

Respondent has made no reservation as to the quality or the quantity of the goods delivered. It has acknowledged that such amount was due, has made partial payments from 1997 to 1999 for a total amount of . . . and only mentioned difficulties to timely fulfil its obligation to pay . . .

Accordingly, the Sole Arbitrator decides that Respondent shall pay Claimant the [unpaid balance].'