En 1993, à la suite de l'acceptation de son offre, une société britannique (demanderesse) s'est engagée à fournir à un Etat asiatique X (défendeur) du matériel de maintenance. Les biens ont été expédiés en janvier 1994 et livrés au défendeur en mars 1994, c'est-à-dire dans le délai de livraison stipulé dans le contrat. En mai 1994, le défendeur a informé la demanderesse que les biens n'étaient pas conformes aux spécifications contractuelles et que celle-ci avait donc commis un manquement au contrat. La demanderesse a rejeté cette allégation et a soutenu que, faute d'avoir pris réception à titre provisoire des biens dans un délai de 14 jours à compter de leur livraison, le défendeur était désormais propriétaire des biens et en avait la responsabilité. Elle a engagé une procédure d'arbitrage aux fins de recouvrer le montant non réglé qu'elle prétendait lui être dû.

'(7) Summary of the Parties' respective claims

1. By their Particulars of Claim dated 2 September 1994, the Claimants contend inter alia:

(a) The Contract is a sale of goods contract based on Incoterms and governed by [State X] law. On matters which are not specifically dealt with by Incoterms, [State X] law will apply, in particular the provisions regarding "sale" under [State X code].

(b) Article 23 of Part B General conditions of the Contract states:

"For all matters not covered by the invitation to tender-Parts A and B the performance of the contract shall be governed by the law referred to, where appropriate, in Article XXIII of Part A."

and further Article XXIII of Part A Special Conditions of the Contract states: "Law of [State X]."

(c) The contract is a "sale on approval". The relevant sections of the code are as follows:

Section [1] "A sale on approval is a sale made on condition that the buyer shall have the opportunity to examine the property before acceptance."

Section [4] "When the property has been delivered to the buyer in order that he may examine it, the sale is complete in the following cases:

(1) If the buyer does not notify his refusal within the time fixed by the contract, usage or notification, or

(2) If the buyer does not return the property within the time, or

(3) If the buyer pays the price or part of it, or

(4) If the buyer disposes of the property or does any other act from which acceptance may be implied."

In the case of "sale on approval", the property remains with the seller at delivery until the buyer adopts the transaction under Section [2].

(d) The delivery term is specified in the Contract Part A Special Conditions XI Calculation of Prices:

"1. Delivered Duty Paid, but excluding taxes and import dues, to [city in State X] (INCOTERM)."

The relevant clauses of the Incoterms, as published in the ICC booklet 'Incoterms 1990', are as follows:

A4 Delivery.

Place the goods at the disposal of the buyer in accordance with A3 on the date or within the period stipulated.

A5 Transfer of risks.

Subject to the provisions of B.5., bear all risks of loss of or damage to the goods until such time as they have been delivered in accordance with A.4.

The transfer of property and risk does not take place until the goods are provisionally accepted in accordance with the Contract. The goods are "presented" by the seller to the buyer for provisional acceptance in accordance with the Article 9.2 of the Contract to take place "at the earliest possible opportunity and at the latest within two weeks of presentation of the supplies at the place of destination".

(f) [sic] The transfer of property and risk therefore pass only after the issue of provisional acceptance or in circumstances previously specified in Section [2] of the [code].

(g) The failure of the Defendants to issue provisional acceptance within the time limit laid down in the Contract resulted in completion of the sale and the Defendants is [sic] obliged to pay sums due to the Claimants in accordance with the provisions laid down in the Contract.

. . . . . . . . .

2. By their Particulars of Defence dated 10 Nov 1994, the Defendants contend inter alia:

. . . . . . . . .

(b) At the time of tender opening, the [Buyer's] Tender Evaluation Committee rejected the lowest evaluated tender since the goods offered were engines of hand-cranked type. Therefore the Claimants' tender was accepted instead since their goods conformed with [Buyer's] Specifications, which is the main criteria of [Buyer] in awarding the Contract.

(c) For the above-mentioned reasons, this sale was, in fact, a sale on specifications stipulated by [Respondent] in the Conditions of the Tender and Contract, and not a sale on approval according to the Civil and Commercial Code, Section [1] which the Claimants is [sic] relying on.

(d) A sale on approval according to the Civil and Commercial Code, Section [1] in Chapter . . . (some Particular Kinds of Sale) Part . . . is a sale on condition that the Seller proposes several types of goods for the buyer's examination before acceptance. This case is not a sale on approval since it was already stipulated in the Specifications that the goods delivered shall meet the Specifications of this tender only. Thus Sections [2], [3] and [4] which are the succeeding and extensive sections of [1] cannot be applied to this case.

. . . . . . . . .

(m) This sale is a general sale by tender and Claimants shall completely deliver all the goods which was specified in the Specifications he himself offered. This sale is not "sale on approval" under Section [1]-[4] of the Civil and Commercial Code of [State X]. That the Claimants did not deliver the goods completely and correctly according to the Contract is inferred that no delivery occurs [sic]. The period as specified in Article 9.2 is only the starting of time the Buyer's acceptance of goods, not the time Buyer shall inform the delivery of non-conformity to the Seller. However [Buyer] insists that [Buyer] has started the acceptance within the period specified in Article 9.2 and has already and completely informed the Claimants of his default of the Contract within the reasonable time.

. . . . . . . . .

(8) Issues to be determined

In the light of the undisputed facts, the following issues from the Terms of Reference were left to be determined in the Arbitration:

(a) On matters which are not specifically dealt with by Incoterms, does [State X] law apply, in particular the provisions regarding "sale" under sections . . . of the Civil and Commercial Code (the "Code")?

(b) Is the contract a "sale on approval" and thereby governed by Section [1] and Section [4] of the Code, or a sale by specifications stipulated by the Defendants in the Conditions of the Tender and Contract?

(c) In the case of "sale on approval", does the property remain with the seller at delivery until the buyer adopts the transaction under Section [4]?

(d) What is the effect of Part B, General Conditions of Contract, Clause 9.2 and does it apply to the dispute?

(e) As the goods were delivered to the Defendants' warehouse on 31st March 1994, should provisional acceptance have taken place at the latest on 14th April 1994?

(f) Were the Defendants entitled to certify "Provisional Acceptance for Lot No. 10 . . . by their fax of 7 June 1994? What is the effect of this certification?

(g) Has title to the goods passed to the Defendants?

. . . . . . . . .

Findings of the Arbitral Tribunal

(A) The applicable law

(16) The Arbitral Tribunal, with respect, cannot accept the contentions of the Claimants on this issue for the following reasons:

(i) Clause 23 of Part B (the general conditions) does not exclude [State X] law when construing the provisions of Clause 9.2. Clause 23 states that "for all matters not covered by the invitation to tender-Parts A and B-the performance of the contract shall be governed by the law referred to, where appropriate, in Article XXIII of Part A. The applicable law is in fact covered in Article XXIII of Part A, that is to say, the Law of [State X], and therefore Clause 23 is not intended to exclude [State X] law.

(ii) Even if the issues in the present case are not covered by the invitation to tender, which the Tribunal does not accept that they are not, it is clear that the Tribunal must apply [State X] law. Rather than excluding [State X] law, the Tribunal is of the opinion that on a proper construction of this clause, it reinforces the applicability of [State X] law.

(iii) Furthermore, by the Invitation to Tender . . . it is expressly provided that "the invitation to tender consists of Parts A, B and C", and "Part A, B and C together, thereto constitute the complete condition for the preparation of tenders and for the placing and execution orders in response to this invitation to tender". Part A contains the Special Conditions, Part B the General Conditions and Part C the Specifications. It is however provided that "where they exist, the Special Conditions in the articles of Part A supplement, make explicit, amend or derogate from the corresponding articles of Part B." Article XXIII therefore prevails.

(B) The nature of the sale

(17) Having regard to all the facts of the case and to the testimony of the expert witnesses called by both parties, the Tribunal is of the opinion that, notwithstanding the provision of Clause 9.2 of the General Conditions, for the following reasons, the transaction is not a sale on approval as contended by the Claimants:

(i) There was an invitation to tender to which the Claimants responded by their letter of 2nd March 1993 and their proposal of 9th March 1993 . . . This was accepted by the Defendants by their letter of 28th October 1993 . . .

(ii) The Defendants had, in accordance with the terms of the Contract, paid 60% of the purchase price.

(iii) There was therefore already a concluded contract to supply the goods in accordance with the specifications in Part C and with the Claimants' proposal.

(18) This is not consistent with a sale on approval contemplated by Sections [1]-[4] of the Civil and Commercial Code. Section [4] expressly provides that: "where the property has been delivered to the supplier in order that he may examine it, the sale is complete in the following cases . . .". The Arbitral Tribunal accepts the contention of the Claimants that on a proper reading of that provision, on a sale on approval, no concluded contract is in existence unless one of the four conditions exists.

(19) In the present case, this was clearly a sale on specifications or by description. The Claimants have agreed that goods supplied do not conform to that description, and therefore the next issue to be determined is whether, by failing to signify "provisional acceptance" within two weeks, the Defendants have thereby accepted them by virtue of clause 9.2 and have lost their right to reject them.

(C) The effect of clause 9.2

(20) What then is the effect of Clause 9.2? The determination of this question is crucial to the resolution of the issue of whether, from the undisputed facts, the Defendants were precluded from rejecting the goods after 14th April 1994.

(21) The Arbitral Tribunal is of the opinion that in construing that clause, regard must be had to all the other provisions of the Contract, in both Parts A and B. Clause 9 which governs "Acceptance" of the goods, contemplates a two-stage process:

(i) "provisional acceptance" which by clause 9.2 "will take place at the earliest possible opportunity and at the latest within two weeks of the presentation of the supplies at the place of destination", and

(ii) "final acceptance" which by clause 9.3 "will take place at the expiry of the guarantee period". By clause 10.1 "this period will run as from the date of the acceptance of the suppliers (sic) at the place of destination".

(22) The Tribunal is of the opinion that clause 9.2 cannot be read in isolation, but in the context of the other provisions, especially clause 10. On a proper reading of clauses 9 and 10 then, a failure to signify provisional acceptance within the two week period would not preclude the Defendants from rejecting them as not being in conformity with the specifications or description in the contract for the following reasons:

(a) Clause 10 provides that the guarantee period is fixed in Article X.1, which is "12 months from the date of provisional acceptance."

(b) Since the guarantee period is to commence from the date of provisional acceptance, clause 9.2 merely provides that provisional acceptance must take place at the latest, within two weeks of presentation of the supplies. If no such provisional acceptance has been signified, then it is deemed to have been provisionally accepted, and the period of guarantee starts to run. Final acceptance then takes place "at the expiry of the guarantee period".

(c) Clause 9.5 provides that if there is no guarantee period, "provisional acceptance shall be deemed to constitute final acceptance".

(23) The Arbitral Tribunal is therefore of the opinion that whole purport of the "Acceptance" provision in clause 9 is intended to determine the guarantee period as well as to when risk is transferred to the buyers. Any "provisional acceptance" after the two week period, or the failure to reject within that period for non-conformity, would not thereby, in the opinion of the Arbitral Tribunal, preclude the buyers from rejecting the goods. Accordingly, the title to the goods had not passed to the Defendants.

(24) In view of the Tribunal's finding that the whole purport of the "Acceptance" provision of clause 9 is to determine the guarantee period, and that the failure to reject the goods within the "provisional acceptance" period would not preclude the buyers from rejecting the goods, the retroactive certification of provisional acceptance of Lot 10 to 12 May 1994 did not have any impact on the dispute in question. The effect of the retroactive certification for that lot would simply mean that the guarantee period would commence from the date of provisional acceptance as certified by the Defendants.'