The respondents, two Brazilian companies, entered into a contract with the claimant, a US company, which was to provide them with access to an online market for the purpose of locating and purchasing materials and services. The claimant initiated the arbitration to recover sums it alleged were due to it under the contract. The claimant argued that it was a services agreement, whereas the respondents characterized it as a contract of brokerage under which the broker was entitled to a fee only if the broker's role led to a definite purchase. The dispute resolution clause provided for ICC arbitration seated in Miami, Florida. The seat was confirmed in the Terms of Reference, which also established English as the language of the proceedings and Brazilian law as the law applicable to the merits. The arbitral tribunal interpreted the parties' contract in accordance with the relevant principles in Brazilian law. It also had regard to Brazilian law when ruling on interest.

Les défenderesses, deux sociétés brésiliennes, avaient conclu un contrat avec la demanderesse, une société établie aux États-Unis qui devait leur donner accès à un marché en ligne leur permettant de localiser et d'acheter du matériel et des services. La demanderesse a engagé l'arbitrage afin de recouvrer les sommes qui lui étaient dues, selon elle, conformément au contrat. La demanderesse arguait qu'il s'agissait d'un contrat de services, alors que les défenderesses y voyaient un contrat de courtage conformément auquel le courtier n'était en droit de percevoir une rémunération que si son intervention aboutissait à un achat ferme. La clause de règlement des différends prévoyait un arbitrage de la CCI ayant pour lieu Miami, en Floride. Ce lieu a été confirmé dans l'acte de mission, qui établissait également l'anglais comme langue de la procédure et l'application au fond de la loi brésilienne. Le tribunal arbitral a interprété le contrat des parties conformément aux principes pertinents du droit brésilien. Il a également tenu compte de ce droit pour se prononcer sur les intérêts.

Los demandados, dos empresas brasileñas, celebraron un contrato con el demandante, una empresa estadounidense, que debía proporcionarles acceso a un mercado en línea con el objeto de permitir la localización y compra de materiales y servicios. El demandante inició el arbitraje para recuperar importes que, según alegó, se le adeudaban con arreglo al contrato. El demandante afirmó que se trataba de un acuerdo de prestación de servicios, mientras que los demandados lo definieron como un contrato de corretaje en virtud del cual el corredor tenía derecho a una retribución únicamente si la intervención de este último conducía a una compra definitiva. La cláusula de solución de controversias preveía que la sede del arbitraje de la CCI fuera Miami, Florida. La sede se confirmó en el Acta de Misión, que también establecían que el inglés era el idioma del procedimiento y que la ley brasileña era la ley aplicable al fondo de la controversia. El tribunal arbitral interpretó el contrato entre las partes de conformidad con los principios relevantes de la ley brasileña. Asimismo se tuvo en cuenta la ley brasileña al decidir sobre los intereses.

'VI. Decision on merits

1. Introduction

A careful examination of the parties' debate held throughout the proceedings and of the facts above established clearly reveals that there are two central sets of issues upon which the final judgment of the present case depends.

The first set of issues relates to the interpretation of the Agreement, which must necessarily take into account the matters of law raised from the application of Brazilian Law as lex causae and the disputed facts resulting from their presentation by both parties.

The purpose of this part of this Award is to find and then rule on whether the Claimant's right to Variable Fees, as provided for in Section 2.2 of Schedule I of the Agreement, is or is not conditioned on the conclusion by the Respondents of any effective purchase of goods that were the object of CBEs [Competitive Bidding Events] during the Term of the Agreement.

Upon conclusion of the above determination, if it is decided that the Claimant's right to Variable Fees is not contingent upon any effective purchase by Respondents, a second set of issues related with Claimant's calculation of fees must be examined.

. . . . . . . . .

2. The interpretation of "the Agreement"

As the Parties agreed to Brazilian law being the applicable law, the interpretation of the Agreement must be made in accordance with the principles arising out of Article 85 of the Civil Code of Brazil of 1916 and from Articles 130 and 131 of the Brazilian Code of Commerce.

Article 85 of the Civil Code expressly states (in the Portuguese language) that: "Nas declarações de vontade se atenderá mais à sua intenção do que ao sentido literal da linguagem." This means that in the interpretation of the parties' statements, more attention shall be paid to their intention than to the literal meaning of the language.

Abiding by that subjective perspective, Brazilian law gives prevalence to the parties' bona fide intentions over the literal meaning of the wording used.

Such principle is, however, complemented with other legal principles and rules.

Among them, and especially applicable to commercial relations in Brazil, Articles 130 and 131 of the Brazilian Code of Commerce require the interpreter to construct his interpretation "seguindo o uso e costume recebido no comércio e pelo mesmo modo e sentido por que os comerciantes se costumam explicar" (...) "devendo procurar determinar-se o sentido que for mais conforme à boa fé e ao verdadeiro espírito e natureza do contrato bem como ao cumprimento subsequente dos contratos".1

Further to the well-established construction on contractual interpretation developed in Brazilian doctrine and case law from these rules and principles of law, the interpretation of the Agreement in this arbitration case shall also consider that Article 17(2) of the ICC Arbitration Rules compels the sole arbitrator to take into account the trade usages and the contractual stipulations.

Therefore, the sole arbitrator "is allowed to make reference to the lex mercatoria" and to further decide on the basis "of the general notion of good faith in business and the usages of international trade" (in ICC Award No. 5721, Clunet 1990, at 1019 et seq.).

Bearing in mind the above, some complementary points must be added to further define the rules of interpretation applicable to this arbitration.

First, the parties' intentions taking primacy over the literal meaning of the language used does not mean that the literal meaning is to be ignored. On the contrary, any agreement must receive an interpretative construction necessarily circumscribed and based on the language used by the parties, as was clearly explained in ICC Award No. 8694:

It is generally acknowledged that the tribunal has to look to the words used in the contract in order to determine the obvious and common intention of the parties. The tribunal may in no case ignore the intention of the parties or substitute the intention that has been clearly expressed in the contract with their presumed intention. If the terms used in the contract are clear and without ambiguity, the clauses must be interpreted along with their clear wording. (in Fouchard, Gaillard, Goldman on International Commercial Arbitration, Kluwer, 1999).

On the other hand, as a component of the principles of lex mercatoria governing the interpretation of rather complex and atypical aspects of international contracts, such as the one under analysis, the interpreter must take for granted the parties' experience and competence (in Yves Derains, Note to ICC Award No. 5346, Clunet 1991, ps. 1063 ss).

The presumption of competence of the parties forces any interpreter to assume that the parties have used the most adequate wording to express their common intentions in the agreement.

As a consequence, the meaning of some expressions, as well as the significance of some omissions, in business life, acquires a rather special value in the interpretation of contracts such as the Agreement being scrutinized in this arbitration (cf. among many authors Fouchard, Gaillard, Goldman on International Commercial Arbitration, Kluwer, 1999, p. 25; Yves Derains in Journal du droit international 1977, No. 3 p. 945(946; Klaus Peter Berger, "Power of Arbitrators to Fill Gaps and Review Contracts to Make Sense" in Arbitration International, 2001, No. 1, p. 8(9).

It is within the above identified juridical framework that a careful consideration of all the evidence produced during this proceeding, together with an attentive reading of all the main sections of the Agreement hereinabove transcribed, force the conclusion that the only legal and fair resolution of this first issue is to decide in favour of the interpretation sustained by the Claimant.

Firstly, it would be very strange that such experienced companies as the parties to this Agreement drafted and used terms of payments of the Variable Fees so complex as the ones actually used in the Agreement, if their common intention was to agree on Variable Fees conditioned on the conclusion of a purchase.

According to the facts presented during the proceedings, the parties freely negotiated the Agreement. If they intended payment conditioned upon conclusion of a purchase they would have stated it clearly and properly, instead of referring to "volume based fees" or "lowest on-screen bid price" or other conventional concepts such as the ones expressed in sections 2.2 and 2.3 of the Agreement.

Therefore, if the parties' common intention was to condition the payment of the variable fees on an effective purchase, there is no logical and reasonable explanation for the absence of any unequivocal and direct contractual language in the Agreement stating that mutual understanding.

Secondly, contrary to the Respondents' position, it is not possible to argue that the legal nature of the Agreement is that of an intermediation/brokerage Agreement, solely on the grounds that the intention of the Respondents was to actually purchase the goods and not simply to hire the Claimant to provide services with potential savings to the Respondents.

To allege and to prove that the motivation was to purchase goods with some implemented savings does not mean that the legal nature of the Agreement is necessarily one of a brokerage/intermediation nature, where the remuneration of the mediator is contingent upon an actual purchase.

In a performance of services contract nothing prevents the parties from agreeing on a set of special services to enable the client to procure some goods via the internet, leaving part of the price for such services dependent on potential, and not on effective, savings.

Furthermore, the ability to withdraw from the Agreement that is attributed to the Client in any intermediation/brokerage agreement is also compatible with a performance of services agreement, but in the latter, a fair allocation of risks usually implies variable fee payment terms conditioned on the services rendered, and not necessarily on actual results.

It is therefore not possible to categorically decide on the legal nature of the Agreement as being that of a brokerage/intermediation agreement, without having been proved beyond any reasonable doubt that its objective was the conclusion of effective purchases and that the agreed variable price stood contingent upon an actual purchase.

The Respondents did not comply with such burden of proof and there is no bona fide requirement to imply that effective purchase was a common condition of the Variable Fees for both parties.

In addition to the two main reasons above, the content of the Agreement as above transcribed and the Respondents' conduct after the term of the Agreement provide a strong complementary set of arguments that support the lack of conditionality sustained by the Claimant.

Starting with clause 1, where the Background of the Agreement is described, the parties expressly state, as a direct and immediate object of their agreement, "that [Claimant] will provide and Client will purchase: (i) access . . . to online auctions known as Competitive Bidding Events (CBEs), and (ii) provide operational services . . . and the additional services as set forth in Article 3".

In their own words, the parties state in the background of the agreement that it is an agreement for the purchase of services by the Respondents from the Claimant.

Such background is confirmed by the extensive and detailed list of services to be rendered by [Claimant] throughout the term of the Agreement, with the use of phrases such as, "Access to Market", "Structuring Events", "Training and Certification of Buyers", "Interaction with Suppliers", "Viewing CBEs" (Article 2) "Market Making Services" (Article 3).

Aside from being important in its own right, this set of services does not appear anywhere in the Agreement as exclusively related to the Fixed Fees mentioned in clause 2.1 of Schedule I of the Agreement.

On the contrary, the agreement on fees is included in the above-referred separate Schedule, comprised in the same clause (Section 2 of Schedule I) with a final part referring to Fixed Fees (Section 2.1) and another part as Variable Fees (Section 2.2).

Furthermore, the entitlement of the Claimant to Variable Fees stood dependent on an excess of sum over the amount paid as Fixed Fees (as these ones are always to be deducted from the total amount calculated for Fees-cf. last sentence of 2.2.1 and 2.2.2).

Also, the process of calculation of the Variable Fees (Section 2.2 and 2.3) clearly shows that the parties agreed on a variable part of the fees solely linked to the sum of price differentials, for all completed CBEs, which means the aggregate difference between Historic Prices and the lowest on-screen bid prices (and not the actual price) or, if necessary, as a cap to the above, linked to the sum, for all completed CBEs, of the product of each Historic Price, multiplied by the volume of goods of each Sourcing Project and the volume of goods eventually awarded in any Off-Line Sourcing Project.

The eventuality of any possible purchase as a result of an Off-Line Sourcing Project is therefore a possible element in the calculation of a Variable Fee, but does not imply any relevant conclusion on the sustained conditionality of actual purchase.

On the contrary, the scope of the Agreement being the conducting of CBEs, it would be nonsensical to interpret the reference to an exceptional circumstance (actual purchase in an Off-Line Sourcing) as a key point of the construction of the terms of payment of Variable Fees.

For purposes of argument, if the Variable Fees would only be due when an effective purchase happens, the parties' failure to establish some essential rules regarding that condition in the Agreement, such as the Respondents' obligation to communicate the purchase and all related procedures, is quite difficult to comprehend in light of their experience and competence.

Finally, it is not legally possible to accept the Respondent's concept of unjust enrichment to reach a conclusion in favour of the conditionality of the Agreement.

Firstly, because the Parties were able to freely negotiate the fees for the services rendered by the Claimant, without any sort of unlawful pressure.

Secondly, because an agreement to pay variable fees for services irrespective of any effective savings is not abusive or unfair per se, as the services undertaken by the Claimant had an intrinsic value agreed upon by the parties.

An enrichment cannot be "unjust", void and legally prohibited if it is based on a valid and binding agreement, as it exists here.

For all the above reasons, the first issue under dispute is hereby resolved in the following manner: The right of the Claimant to Variable Fees is not conditioned on the effective conclusion of any purchase of goods or services under the Agreement.

. . . . . . . . .

VIII. Interest

As referred to in section IV a) of the Terms of Reference the Claimant is also seeking to be paid . . . "pre-Award interests" and to be granted . . . "further relief as is just and appropriate herein".

According to Art. 1064 of the applicable Brazil Civil Code, who fails to pay on time any pecuniary obligation must pay interest since that obligation becomes payable until its effective payment.

Interests on the above amounts . . . until the date of effective payment are therefore due by the Respondents to the Claimant.

In what concerns the rate of interest, the Parties decided in section 6.3 of the Agreement that the applicable rate should be one of the following annual rates-"one and one half per cent per month or the maximum rate allowed by law whichever is less".

The law applicable to determination of the interest rate is the law of the place of payment, which in accordance with Art. 950 of the Brazil Civil Code of 1916 is the creditor domicile, except if a different place arises from the circumstances of the case.

In the current case, the above-referred invoices . . . expressively mentioned, without any objection from the Respondents, that the place for payment was the headquarters of the Claimant in [US city] or its bank account at [Bank].

As agreed by the parties, the applicable interest rate, since it is lower than 1.5% per month, shall therefore be the bank short term prime rate in force at the date of this Award, at [city where Claimant's headquarters are located].'

1
"following the trade customs and usages as understood and used by the traders" (…) "endeavouring to determine the meaning which is most in conformity with good faith and the true spirit and nature of the Agreement, as well as the parties' subsequent behaviour".