En 1994, la demanderesse, une société brésilienne, et la défenderesse, une société suisse, ont conclu un contrat aux termes duquel la demanderesse devait fournir à la défenderesse des quantités données d'un produit contre paiement, et la défenderesse devait rendre à la demanderesse des quantités similaires de ce produit après traitement. La défenderesse n'a pas livré certains de ses lots, ce qui a conduit la demanderesse à mettre fin au contrat. La demanderesse a soutenu qu'elle était propriétaire des lots que la défenderesse ne lui avait pas livrés ainsi que d'autres lots qui étaient en la possession de tiers. Le tribunal arbitral, à la majorité de ses membres, a fait droit à l'argument de la défenderesse selon lequel le droit brésilien devait s'appliquer aux prétentions fondées sur le contrat et la lex rei sitae à toutes les autres prétentions, y compris celles relatives aux droits de propriété.

'Title to lot 2

Title to lot 2 was validly transferred by the Claimant to the Defendant. . . .

Lot 2 was in storage . . . in . . . Germany, as of December 21, 1982. Lot 2 was to be delivered "free carrier" according to subparagraph 2.4.4 of the Agreement. . . .

In its pleading . . . the Defendant states that the Claimant transferred title to lot 2 due to the book transfer of April 25, 1994; it submits that the delivery nevertheless took place "free carrier", because the [product] was delivered to a "non-carrier" as per the Incoterms definition of the term. The agreed upon transfer had therefore taken place.

. . . . . . . . .

Although the delivery did not take place "free carrier" or in the form of a physical delivery, title was transferred by book transfer, i.e. through [a third company] as a bailee.

"Free carrier" delivery

The Defendant has submitted that the delivery did take place "free carrier". The Claimant's submission . . . asserts that the Agreement clearly distinguishes between delivery and book transfer. The completion of delivery "free carrier" under the Incoterms by way of book transfer pursuant to the Claimant overreaches the wording and scope of the provisions under the Incoterms; it, allegedly, has to be considered that title was not directly transferred from the Claimant to the Defendant.

It is a general precondition of delivery that the transferor does not retain possession and the acquirer gains possession without the intention of returning it in the immediate future. Delivery must take place as part of the performance of the transfer of title . . . However, title does not have to be directly conferred upon the transferee by the transferor himself. Instead, an agent in possession or a person instructed to perform or receive the delivery (Besitzdiener) can be used. In such transactions where the transferee immediately resells to a second transferee, the delivery by the transferor to the second transferee may comprise also the delivery to the first transferee. Finally, the delivery of documents of title to the person legitimated by the documents is equivalent to the delivery of the goods.

A delivery in the sense of a physical delivery or collection of lot 2 at [third company] did not take place. Delivery rather took place by way of the book transfer mentioned above.

. . . . . . . . .

Title to lot 3

Title to lot 3 was validly transferred by the Claimant to the Defendant. . . .

Lot 3 . . . has, since 1989, been in storage . . . in . . . Great Britain . . .

According to subparagraph 2.4.7 of the Agreement, lot 3 should be delivered "free carrier" or by "book transfer" at [storer]'s fabrication facility. As it was the case with lot 2, [an affiliate of Respondent] requested the Claimant's consent to a book transfer in the name of the Defendant. After the book transfer, lot 3 continued to be stored at [storer], although in [third party]'s name.

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English case law on delivery

Two cases which remain good law and which are cited in current English text books on the law of delivery reached the conclusion that, in the event of a third party being involved as in the instant case, it is the third party's treatment of the goods which determines delivery (as may be evidenced by a third party recording book transfers). Such cases are those of Wardar's (Import & Export) Co. v. Norwood & Sons [Court of Appeal, 1968] and of Dumenil v. Ruddin [Court of Appeal, 1953], the latter cited in the English Courts at least as recently as 1992, for example in the case of Edgestop v. McGorry. As it is generally known, English statutes are in many instances interpreted by the Courts, and that is the case of The Sale and Goods Act.

In the instant case, third parties recorded book transfers, thereby treating the goods involved in a manner that determines that their delivery did occur, despite the fact that the above mentioned cases do not specifically mention book transfers, which are a matter of fact rather than of law, and which is not a concept defined under the Agreement. In other words, book transfers have to be considered in the light of the principle that usual business practice in the industry involved is of basic importance to determine the effects of documentary evidence.

Under English law, constructive delivery is the transfer of possession from one person to another by the tender of some document, including those documents used in the ordinary course of business. A basic criterion to determine if documents qualify for the purpose of constructive delivery is the usual business practice in the industry involved.

In the instant case, it has been evidenced that book transfers happen in the normal course of business regarding title on [product]. As provided for in The Sale of Goods Act, delivery occurred in accordance with the terms of the Agreement, that is, through book transfers carried out by third parties, and delivery resulted into the transfer of title on lot 3 from the Claimant to the Defendant.

Title to lot 5

Title to lot 5 was validly transferred from the Claimant to the Defendant. . . .

Lot 5 was originally stored . . . in Great Britain . . .

According to subparagraph 2.4.5 of the Agreement, the parties, regarding lot 5, could also choose between a delivery "free carrier" or a book transfer. The parties agreed, in subparagraph 2.6, that the rights to the disputed material would pass from the Claimant to the Defendant "upon delivery". The Defendant requested for delivery to take place "free carrier". According to the Claimant's submission, the Defendant did not, however, collect the [product]. In contrast, the Defendant's submission asserts that lot 5 was shipped from [a company] in the UK to [a company in Germany] in June of 1994, and there was entered into the books to the credit of the Defendant's account. The Defendant contends that the Claimant confirmed the book transfer in a letter dated June 29, 1994. The parties, the Defendant claims, had agreed to this procedure in a faxed letter of April 18, 1994, because the Defendant had had difficulty in obtaining an export permit and for this reason it needed to store the material . . .

This description of the facts is disputed by the Claimant. It emphasizes that the Defendant chose delivery "free carrier" in its letter of April 18, 1994. This choice, it claims, was binding according to Brazilian law.

In addition, pursuant to the Defendant lot 5 allegedly was the property of [the processing company] during the time when it was being [processed] . . . An employee of the Claimant initially confirmed, in fax dated August 9, 1994 . . ., that the title to the [product] was to be transferred to the Defendant. Later, in a fax dated November 10, 1994, the Claimant withdrew this confirmation.

The Material Account Statements of [the third party] show a transfer of lot 5 from [the processing company] on June 24, 1994 . . . as was confirmed by the Defendant to the Claimant by letter of June 30, 1994 . . . From the Claimant's point of view this date merely marks the point in time when the [product] was prepared for delivery, not the point in time when the title to the [product] was transferred. It claims that such a transfer did not take place because the Defendant did not collect the [product] and that in fact the date in the Material Account Statements are no more than dates when interest payments would become due under the Agreement.

On April 26, 1995, the material finally was shipped from [the processing company in Germany] to [the third party's subsidiary].

According to the Claimant, the title to seven cylinders was simultaneously transferred to [the third company], so that at a minimum a subsequent transfer of the title to the Defendant was not possible. The Claimant further states that lot 5, or a part of lot 5, was confiscated by [the processing company] after the termination of the Agreement in order to obtain collateral for a credit in regard with [sic] the Claimant.

According to the Defendant, [the third company] could, at the most, have effected a bona fide acquisition of lot 5, because title to this lot had already been transferred to the Defendant in June of 1994. The Defendant states that the parties did not agree to a transfer of title, and that [the third company] was not able to acquire the lot in good faith, because [the third company] in a letter dated June 2, 1995, had recognized that four cylinders had already been transferred to the Defendant . . .'