En 1999, une société roumaine (le défendeur) souscrivit un contrat de vente de ferraille à une société allemande (le demandeur). Ce contrat, qui était régi par le droit roumain, faisait référence aux Incoterms et stipulait expressément qu'il incomberait au vendeur d'obtenir la licence d'exportation. Ce dernier n'ayant pu l'obtenir, le demandeur fut amené à supporter des coûts dont il chercha à récupérer le montant en ayant recours à l'arbitrage. Le défendeur affirma que les raisons de son échec à obtenir la licence d'exportation étaient indépendantes de sa volonté et invoqua la force majeure afin d'éviter d'avoir à verser une quelconque indemnité.

'132. The Contract provides in Article II for delivery "FCA Constanta according to INCOTERMS 1990". In international commerce, the FCA term means that the seller fulfills his obligations when he delivers the goods into the custody of the carrier at the named point. In addition, the seller must, inter alia, obtain any export license or other official authorization necessary for the export of the goods.

In Article IV of the Contract the parties made explicit reference to this latter obligation, which was implied by the parties' use of the FCA term, as follows: "[o]btaining of [the] export license is in charge of the SELLER after the BUYER accomplishes all the above mentioned conditions".

Moreover, the FCA term means that the seller undertakes to obtain any required export license at its own risk and expense, which implies that the seller must not only employ diligence, but must in fact obtain the export license in order to fulfill this obligation. If this were not the case, the risk of failure would be on the buyer, as opposed to the seller.

For this reason, the Arbitral Tribunal disagrees with the Respondent's position that its duty under the Contract was to use appropriate means to obtain the export license, as opposed to successfully procuring the license. The Arbitral Tribunal therefore concludes that by referring to the FCA term, the parties intended in the Contract to impose a duty on the Respondent to successfully obtain an export license for the goods.

. . . . . . . . .

153. Concerning the principle of force majeure as described in the Incoterms, the Claimant, in its Brief of October 12, 2001, stated its position in the following terms:

Concerning the non-obtaining of the export licence, it appears that the Defendant refers itself to the "force majeure" in order to exclude its responsibility.

According to Article VII of the Agreement, a case of force majeure is to be understood as described in INCOTERMS.

a) Firstly, it has to be figured out, that the INCOTERMS itself do not define the terms of force majeure. But regarding to general definitions, a force majeure is a non-performance arising out of causes beyond either party's control and without any fault or negligence on the part of the non-performing party. These causes are not mentioned in a complete enumerated form but concern in the normal case major events like fire, earthquake, war etc. In the practical application on this case, that would have meant for example that acts of civil or military authority, strike or embargo had changed suddenly and completely the political and economic outline conditions in Romania.

In its allegation of facts, the Defendant substantiate the non-according of the export license due to the Decision N° 276 issued by the Romanian Government in May 1995 concerning performing import-export transactions concluded at a level of societies.

These regulations were in force since four years, so that an argumentation of a sudden change in the economic and political structure of Romania which could be compared to these causes mentioned above (war etc.) is without foundation.

In this case, regarding only the first formal requirement of this event, it has to be concluded, that the non-obtaining of an export licence does not reach this extremely high scale of a force majeure by definition.

b) Secondly, even under further formal aspects the preconditions of a force majeure are not complied, because these causes were not unforeseeable for the Defendant.

To avoid any repetitions, we only want to draw the Tribunal's attention to the fact, that the Defendant is a public Romanian Company and is a well-known trading partner which has to have good relations with national bodies concerning the export market. Due to its position, the Defendant is in charge to know the national exporting regulations and procedures in Romania according to normal international trade practice. The Defendant had had the opportunity to avoid this event in demanding for example a pre-export-authorization by the Romanian Ministry or to conduct some safeguards.

c) Thirdly, the causes (i.e. non-obtaining of the export license) were not beyond reasonable control of the Defendant, on the contrary, it was a part of its contractual obligations. In consequence, it has to recognize the full responsibility in case of the non obtaining of the licence.

Nevertheless its behaviour by signing the contract including a contractual obligation (obtaining an export license) shows that the Defendant was acknowledging the risks of the non-obtainment. Based on this fact, it is inadmissible to relocate this essential Defendant's contractual obligations to a force majeure, which means on the other hand that the Claimant shares the Defendant's risks.

d) Finally, by choosing the FCA-INCOTERM status the Defendant has automatically to fulfil its delivering obligation in handing over the goods, cleared for export which concerns the obligation of providing the Claimant with an export license.

e) In conclusion, a contractual obligation of the Defendant is not valid to be used under terms of force majeure including a share of risks by both parties, if the non-performance results from the Defendant's negligence and none of the formal requirements of a force majeure is fulfilled.

. . . . . . . . .

162. Turning to the question of whether the Respondent may be exonerated from contractual liability due to an alleged case of force majeure, the Arbitral Tribunal agrees with the Claimant that, notwithstanding the terms of Article VII of the Contract [making reference to "Force Majeure as described in Incoterms"], the Incoterms do not contain any definition of force majeure. Nevertheless, with reference to Article 1083, upon which the Respondent has based its defense, the Arbitral Tribunal shall apply the principle of force majeure in a manner consistent with the usages of international commerce.

Accordingly, the Arbitral Tribunal agrees with the Claimant's position (see paragraph 153 above) that the Ministry's refusal did not result from any sudden change of government or political regime, strike, embargo, economic upheaval or any similar event that could satisfy the definition of force majeure. The Arbitral Tribunal further agrees with the Claimant that the Ministry's refusal cannot constitute a case of force majeure to the extent that this refusal was foreseeable (see paragraph 153 above).

Moreover, the Arbitral Tribunal agrees with the Claimant's interpretation that in accordance with the FCA clause contained in the Contract, the risk inherent in the Ministry's refusal to grant the export license was knowingly assumed by the Respondent. Under such circumstances, the Arbitral Tribunal concludes that the Respondent now must bear the responsibility of the risk it took when it signed the Contract.'