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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
Les extraits publiés ici constituent une annexe à l'article de Brooks W. Daly, « La correction et l'interprétation des sentences arbitrales dans le cadre du règlement d'arbitrage de la CCI », page 65.
Ces extraits sont expurgés de certaines mentions non utiles à leur compréhension. En particulier, les noms des parties sont remplacés par les termes de demandeur ou de défendeur ou leur équivalent en anglais. Les textes sont reproduits dans leur langue originale.
Affaire n° 8810
Date de la « décision » : décembre 2000
Lieu de l'arbitrage : Paris, France
'1. On 2nd August 2000, [counsel to Respondent] made an application for the interpretation of the Interim Award dated 28th June 2000, rendered by the Arbitral Tribunal in the ICC case no. 8810 [...]
2. [Claimant in the arbitration proceedings] submitted « Comments on the application for interpretation of the Interim Award of June 28, 2000 » on 15th September 2000.
3. The ICC Court of Arbitration granted the Arbitral Tribunal an extension of time up to 17th November 2000 to submit its decision on the application to the Court.
[. . . . . . . . . . . .]
The Arbitral Tribunal's Findings
20. The Arbitral Tribunal is of the view that to interpret an Award should not lead to revisiting the issues at stake on the merits of the case. Interpretation should only be granted in case there is a need of clarification of the Award or a need to improve such wording which would enable the parties to fully understand what the Arbitral Tribunal meant in its decision.
21. In the present case, the Arbitral Tribunal first decides that there is no need to have full adversarial proceedings on interpretation, since the parties have been given the opportunity to fully explain their position.
22. As far as Items 3 and 4 of the operative section of the Interim Award [...] are concerned, the Arbitral Tribunal considers that they are self-explanatory, and that there is no ambiguity in the wording of the decision, as is rightly indicated by Claimant in its « Comments on the application for interpretation of the Interim Award of June 28, 2000 » [...]
23. As far as Respondent's other request are concerned (deletion of part of the wording of Items 3 and 4 of the operative section of the Interim Award, rectification of alleged mistakes, inconsistent reasons or incorrect assumptions), these complaints pertain to the reasons and the merits of the case and fall outside the scope of a request for interpretation. [Page77:]
24. The Arbitral Tribunal does not follow Respondent's complaint that the Arbitral Tribunal did not hear arguments on certain issues, or that certain assumptions « relate to issues which have not been the subject of any discussion, let alone any evidentiary proceedings before the Arbitral Tribunal » or that « the Arbitral Tribunal was not in a position, on the basis of the pleadings and evidence before it, to assess » any other issue. Respondent is entitled to reserve its rights regarding the respect of rights and defence, but the Arbitral Tribunal considers that the parties have been given full opportunity to express themselves on all subjects which are covered by the Interim Award, over the last few years, in an arbitration procedure which gave rise to numerous written submissions, expert reports, testimony and oral presentation hearings and numerous orders or awards already rendered by the Arbitral Tribunal.
25. Consequently, the application for interpretation of the Interim Award of June 28, 2000 submitted by Respondent on 2nd August 2000 is dismissed.'
Affaire n° 9235
Date de la décision <sup><a href="#footnote1">1</a></sup>: février 2001
Lieu de l'arbitrage : Le Caire, Egypte
'Decision of the Arbitral Tribunal [...] concerning Clarification, Correction and Addition to the Arbitral Tribunal's Final Award of December 16, 2000
(a) Introduction
1. The Final Award in the above Arbitration was signed in Cairo and dated December 16, 2000. It was sent to the Parties by the ICC on or after December 20, 2000.
2. On January 19, 2001 [Claimant] submitted to the ICC a request for clarification, correction and addition to the Final Award under the ICC Note on this subject of October 1, 1999. It attached an opinion on Egyptian law.
3. This request was timely.
4. It was forwarded to the Arbitral Tribunal which by letter of January 22, 2001, invited [Respondent] to respond.
5. On January 30, 2001, [Respondent] presented its response, requesting [Claimant]'s requests should be dismissed in their entirety in a supplementary award, and claiming costs in this connection [...] It attached an opinion on Egyptian law.
6. On February 12, 2001 [Claimant] presented an unsolicited and belated four-pages reply, accompanied by yet another opinion on Egyptian law.
7. On February 14, 2001, [Respondent] reacted with a short letter.
8. The Arbitral Tribunal will address [Claimant]'s requests, as submitted on January 19, 2001, and
answered by [Respondent] on January 30, 2001, dealing with [Claimant]'s Materials purchased claim last.
[. . . . . . . . .] [Page78:]
(e) Material purchased
15. Finally, [Claimant] contended that the Arbitral Tribunal overlooked [Claimant]'s claim [...] regarding materials purchased, for which nothing was granted [...]
16. There is no doubt that such a claim was made in the arbitration by [Claimant]. The claim was made in [Claimant]'s Request and it is detailed in Schedule 11, « Materials Purchased by [Claimant] on behalf of [Respondent] », of [Claimant]'s Schedule of Costs and Damages [...] and it is recorded in points 149 and 320 of the Final Award.
17. There is no doubt that in respect of this claim nothing was awarded in point 1237 (where the irrelevant words « the Arbitral Tribunal » in the second sentence appear due to a typing error).
18. The question is : has the Tribunal decided this claim in its Final Award ?
19. During the course of the arbitration several bases, methods and parameters were used by the Parties and their consultants for the Final Measurement and Valuation/Final Account of the works executed by [Respondent]. They were often inconsistent in method with one another ; sometimes the method included and dealt with the cost of materials purchased by [Claimant] for the account of [Respondent] so that the final figures allowed for this cost, sometimes not at all.
20. Faced with conflicting methods, the Arbitral Tribunal took as its base line the valuation made by Messrs [...] in the Joint Expert Report [...] Several adjustments, corrections, revisions and the like were made by the Arbitral Tribunal in its Final Award to the figures agreed between Messrs [...] on a « figures-as-figures » basis. No adjustment, positive or negative, was made in respect of [Claimant]'s claim for the cost of purchase of materials. The question hence becomes : did the figures in the Joint Expert Report allow for this category of costs ? If so, the claim has necessarily been decided in the Final Award, if not, not.
21. It might have been thought that the two Quantity Surveyors of the Parties with all the figures and cost records before them and some considerable time devoted to accounts under the Sub-Contract and with little difference between the Parties on the figures would address this matter in their Report. If a measurement and valuation is being made of a given item of work, if it is certified to be payable to the contractor, in this case [Respondent], and if the contractor did not supply the material in question (for « supply » Bill items) or supply the material forming part of a « supply-and-fix » Bill item, then the amount of such Bill item should not be included in the valuation in favour of the contractor, in this case [Respondent]. Indeed, Messrs [...] valued certain Bill items at zero on the ground that supply was not by [Respondent] (e.g. the ductile iron pipes) with the result that [Respondent] was not entitled to payment of the corresponding Bill item. This is the proper course for arriving at the FMV : the contractor is due the amount payable under the Bill for items work undertaken (or supply provided by it) : the valuation is for materials supplied and work performed by the contractor as per the Bill items, not for the value of Bill items not performed by the contractor. Their notes in the Bills in the terms « No allowance has been made in the following rates for [type of material] purchased by [Claimant] » is ambiguous since it may mean either that no adjustment has been [Page79:] made to exclude materials supplied by [Claimant] or that materials supplied by [Claimant] have been disallowed
22. At para. 62 of [Respondent]'s Post-Hearing Brief, [Respondent] observed that the Quantity Surveyors excluded the value of cast iron pipes and galvanised pipes from the measured value of the works in their Joint Expert Report, gave the Bill item references and concluded that [Claimant]'s claim must hence fail for these items of materials. This is erroneous. The exclusions were in respect of ductile iron pipes which were not part of [Claimant]'s claim for materials purchased. Whenever galvanised pipes were mentioned in Bills 4 and 5 the Quantity Surveyors noted : « No allowance has been made in the following rates for galvanised pipes supplied by [Claimant]. »
23. The same mistake was made in the letter of January 30, 2001, of [Respondent]'s Counsel. It is, however, apparent from the credit given to [Claimant] under item 7 in Appendix I of [Respondent]'s Post Hearing Brief that [Respondent] had seen that the cost of the panel boards purchased by [Claimant], the largest of the five items, was not covered by the Joint Expert Report.
24. It is accordingly clear that the Joint Expert Report did not exclude from the FMV the value of those materials purchased by [Claimant] for [Respondent] which are the subject of [Claimant]'s claim.
25. It follows that [Claimant] is right in its submission that the Final Award in substance omitted to decide [Claimant]'s claim for the cost of materials purchased for the account of [Respondent].
26. There are six items of materials purchased by [Claimant] for the account of [Respondent].
27. The first, [Claimant]'s claim panel boards for EGP [...], was admitted by [Respondent] in full in its Reply [...] Hence EGP [...] must be awarded to [Claimant].
28. The second claim concerns galvanised steel pipes. [Claimant] originally claimed FRF [...] and [Respondent] admitted FRF [...] The Arbitral Tribunal must award [the latter amount].
29. The third item consists of cast iron pipes and fittings. [Claimant] claimed FRF [...] [Claimant] withdrew that claim on February 12, 2001. The Arbitral Tribunal awards nothing.
30. The fourth concerns galvanised sheet. [Claimant] claimed FRF [...] including FRF [...] for transport, which figure [Respondent] conceded [...] This must be awarded to [Claimant].
31. The fifth item relates to fire alarm monitor modules. [Claimant] claims USD [...] and [Respondent] admitted USD [...] The Arbitral Tribunal will allow the latter figure.
32. [Claimant]'s sixth claim [...] for hotel expenses must be dismissed.
33. This gives a total of FRF [...], USD [...], EGP [...] to be additionally awarded to [Claimant].
(f) Interest
34. On these sums in FRF, USD, and EGP, interest runs in favor of [Claimant] at the same rates and from the same dates as in the Final Award of December 16, 2000.
35. As far as the interest calculation made in view of the Garnishment orders [...] is concerned, the initial EGP balance [...] in favour of [Respondent] [...] must be corrected, by deducting the above EGP [...] to derive EGP [...] due to [Respondent] before May 1, 1997.
36. These EGP [...] were reduced on May 1, 1997, by [...] to [...]
37. On November 13, 1997, the Garnishment orders were lifted [...]
38. Accordingly, 5 percent interest ran for 196 days on EGP [...] only, which equals [...]
39. Originally, EGP [...] were awarded to [Respondent]. Accordingly, [Claimant] must now receive the difference [...] from [Respondent].
(g) Costs
40. Finally, [Claimant] wishes the Arbitral Tribunal to alter its decision on costs in view of the suggested changes to its decision. Since however the corrections are minor, the Arbitral Tribunal sees no reason to change its decision on costs.
(h) [Respondent]'s claim for costs
41. The Arbitral Tribunal must reject [Respondent]'s claim for costs in the correction and interpretation proceedings. [Claimant] wins in part.
42. The Arbitral Tribunal renders its present Decision in the legal nature of an additional award made pursuant to article 51 of Egyptian Law No. 27 as an additional award to its Final Award of December 16, 2000, which shall remain in force and effect as rendered.
Based on the foregoing, the Arbitral Tribunal, without altering its Final Award of December 16, 2000, which shall remain in full force and effect, renders the following additional Decision:
1. [Respondent] shall pay to [Claimant] FRF [...] plus 5 percent simple annual interest thereon from May 1, 1997, to the date of payment.
2. [Respondent] shall pay to [Claimant] USD [...] plus 5 percent simple annual interest thereon from May 1, 1997, to the date of payment.
3. [Respondent] shall pay to [Claimant] EGP [...] plus 5 percent simple annual interest thereon from November 14, 1997, to the date of payment.
4. [Respondent] shall, moreover, pay to [Claimant] EGP [...]
5. [Claimant]'s further requests for clarification, correction and addition to the Final Award of December 16, 2000, are rejected.
6. [Respondent]'s claim for costs in connection with the present procedure is rejected.'
[Page81:]
Affaire n° 9391
Date de l'addendum : juillet 2000
Lieu de l'arbitrage : Istanbul, Turquie
'Addendum to the Award of 14th March, 2000
On March 14, 2000 the Arbitral Tribunal rendered by majority its final Award in the above referenced matter.
The Award was notified to the Parties by the ICC International Court of Arbitration on 21st March, 2000.
With a fax dated 24th April, 2000 [...], Counsel for Defendant [No. 2], drew the attention of the ICC International Court of Arbitration [to] a contradiction in point 3 of the operative part of the Award, requesting its correction.
The request was forwarded to the Parties by fax dated 10th May, 2000 inviting them to communicate to the Arbitral Tribunal not later than within 14 days any comments to that request.
The Parties did not react.
Defendant No. 2's request is founded.
Therefore point 3 of the operative part of the Award has to be corrected and shall read as follows:
Each Party has to bear 50% of the arbitration costs fixed by the ICC Court of Arbitration at [...]
Taking into account that the provision [...] has been paid in full by Claimant ([...] will be reimbursed to Claimant by ICC), Defendants shall pay to Claimant (within one month from the date of the notification of the Addendum to the Parties) the sum of [...] as reimbursement for the provisions already paid.
Reasons
There is an obvious computational error in the original of point 3 which calls for a correction in the above expressed way.'
Affaire n° 9908
Date de l'addendum : octobre 2000
Lieu de l'arbitrage : Boston, Etats-Unis
'Arbitral Tribunal's Discussion of Interest
1. This arbitration arose out of agreements concluded by sophisticated business entities with access to highly competent counsel. Absent fraud or violation of public policy, New York law in such circumstances holds contracting parties to the terms of [Page82:] their bargain. Neither Party at any time alleged that any of the contract terms were contrary to public policy. Respondents' arguments about fraud were rejected by the Arbitral Tribunal as completely baseless.
2. Absent fraud or public policy violations, arbitrators go beyond their powers if they disregard clear contract terms or attempt to re-draft an agreement to reflect personal notions of commercial justice.
3. As discussed below, in this case the Arbitral Tribunal applied the specific language of the Parties' contracts, rather than the generic default rules that would have applied in the absence of such terms.
4. Claimants' Application suggests that the Tribunal misunderstood the relevant law, in that interest should (i) run from date of substantial completion, rather than the contractually stipulated payment date, and (ii) be payable on all amounts due (including « affirmative claims ») rather than on amounts not « contested in good faith » as provided in the contract.
5. As stated in the Award, the Parties' contracts provide for interest to run on amounts « not paid when due ». [...] The Parties' contracts also provide that payment is due on delivery of certain documentation establishing, inter alia, that title to all work has vested in the Owner. [...] The Tribunal found such documentation to have been delivered on 17 August 1998. Thus interest began to run from 18 August 1998. The Tribunal finds no reason to ignore the contract language on due date in favor of the « substantial completion » default rule proposed by Claimants, which the Tribunal had already found to be of doubtful application under the facts of the case.
6. As stated in the Award, the Parties' contracts provide that interest is due unless amounts have been « disputed in good faith ». [...] Again, the Tribunal finds no reason to disregard the clear contract language in favor of an award of interest without regard to good faith disputes. The Tribunal notes that the contracts speaks [sic] of amounts « disputed in good faith » rather than the Claimants' suggested formulation [...] of amounts « unreasonably withheld ».
7. The maximum amount that could be disputed "in good faith" was the [...] for liquidated damages [...] and [...] for "unperformed obligations" [...] However, when making payment of [...] in August 1998, Respondents withheld not only the maximum amount for liquidated damages, but an additional amount.
8. Respondents believed they had withheld [...] See Respondents' letter of 17 June 1998, Respondents' Exhibit 701. On the basis of this Exhibit, the Tribunal found that Respondents wrongfully withheld [...], the excess over the amount that could be withheld for unperformed obligations. For good order, the Tribunal notes that neither side ever contested the accuracy of this Exhibit 701, or sought to correct the payment amount noted in the Terms of Reference or amendments thereto.
9. Respondents apparently miscalculated the amount withheld. The total amount paid, rather than being the [...] reflected in the Terms of Reference and their subsequent Amendments, was actually [...] Respondents' figures have been accepted by Claimants. Thus the amount withheld should be [...] rather than [...] [Page83:]
10. Most of this additional [...] was paid before August 1998, while a small amount [...] was paid thereafter. Claimants take the position (favorable to and accepted by Respondents) that the small post-August payments should be treated « as if they had been received on August 18, 1998 ». [...]
11. In essence, Respondents only thought they were withholding [...] In retrospect their bad faith withholding appears less serious than they themselves had originally believed. Although they intended to withhold [...] (of which [...] would have been wrongful under the contract), their miscalculation meant that they really only withheld [...] (of which only [...] was not disputed « in good faith »).
12. Had the Tribunal used [...] as the amount withheld, rather than the [...] set forth by Respondents in their Exhibit 701, this would have resulted in a bad faith underpayment smaller by [...], which would have resulted in [...] less interest due.
13. Normally, one would expect the Parties to use the hearings to make such arguments about interpretation of Exhibits and amounts in Terms of Reference. After the proceedings have been closed, no further submissions or arguments are to be made or evidence produced unless requested or authorized by the Arbitral Tribunal. See ICC Rules Article 22. In this arbitration, the proceedings were declared closed on 4 February 2000. [...]
14. Nevertheless, ICC Rules Article 29 allows correction of an error that is « clerical, computational or typographical » or « of a similar nature ». In this case, Claimants and Respondents now both agree that the amount actually withheld was less than the amount presented to the Tribunal in Exhibit 701. Therefore the Tribunal accepts recalculation of interest by reference to the amount withheld now accepted by all Parties, but according to its original methodology. Thus the amount due Respondents is reduced by [...]
Conclusions
A. Both Claimants and Respondents now submit that the amount to be treated as paid by Respondents as of 18 August 1998 should be [...] rather than [...], resulting in a corresponding reduction in the amount wrongfully withheld. Claimants and Respondents do not, however, agree on the methodology for interest calculation.
As set forth above, the Arbitral Tribunal affirms the calculation method set forth at pages 87 and 88 of its Award, imposed by the Parties' agreements. Applied to the figures now agreed upon by the Parties, interest is thus due to Claimants in an amount of [...] rather than [...], which results in a reduction of [...] in the sum owed by Respondents.
D. The cost of these Applications is fixed at [...] Neither side made its Application in bad faith or frivolously. Thus the costs shall be borne 50 % by Claimants and 50 % by Respondents. Each side shall bear its own legal fees.'
[Page84:]
Affaire n° 10172
Date de l'addendum : juin 2000
Lieu de l'arbitrage : Genève, Suisse
'On 4 April 2000, the Claimant [...] made an Application under article 29.2 of the ICC Rules in relation to the Award on Jurisdiction. In its Application the Claimant requested an interpretation of the Award as follows :
Over which of the Claimant's claims has the Tribunal reserved its position to decide whether or not it has jurisdiction (as per paragraph 7.2 of the Award), being claims which :
(a) have not been brought by the Claimant under the arbitration clause contained in the Assignment Agreement ;
(b) give rise to different matters in dispute to those in the present Arbitration ; and
(c) have been brought by the Claimant as claims in Case No[...] . ?
This question may alternatively be expressed as follows :
What is the correct interpretation of the words « claims arising under the Joint Operating Agreement » and « [Claimant]'s claims, as submitted in this present arbitration » in paragraph 7.2 of the Award on Jurisdiction ? Are these words to be interpreted as referring to claims brought by the Claimant in the present arbitration (albeit that they do not give rise to matters in dispute in this arbitration) ? If so, what are these claims ?
The Arbitral Tribunal invited the Respondent to comment on the Application.
The Respondent by letter dated 11 May 2000 submitted its comments and concluded that the Award on Jurisdiction is perfectly clear and does not require any interpretation whatsoever.
By letter dated 18 May 2000 Claimant reiterated its request for interpretation and asked the Arbitral Tribunal to exercise its discretion to give an interpretation of its Award since the point upon which the interpretation is sought is important in view of the Arbitral Tribunal's suspension of this arbitration.
The Arbitral Tribunal accedes to the Claimant's Application to give an interpretation of paragraph 7.2 of its Award since the Arbitral Tribunal is of the view that it has an obligation to clarify issues which do not seem clear to one of the parties.
The « claims arising under the Joint Operating Agreement, articles 9 and 21 » contemplated by paragraph 7.2 of the Award, are claims for reimbursement of advances for Petroleum Costs, the calculations and procedure for which are governed by those articles of the JOA. The underlying substantive issue in this arbitration, whether it is stated as a claim or not, is how such calculations and procedure should be carried out.
A determination of that issue requires an interpretation of those articles of the JOA. We have decided that the Arbitral Tribunal in Case [...] is the appropriate body to make that determination (i.e., the determination of how the calculations and procedure for the reimbursement of advances should be carried out). [Page85:]
Should that Tribunal not make the determination, then we will decide whether we have jurisdiction to do so, and, in the affirmative, will decide on the merits of Claimant's claim for [...] When so doing we will also decide on any remaining claims of Claimant arising exclusively out of the Assignment Agreement, including any such claims based on agency or fiduciary duty.
The Arbitral Tribunal will now answer Claimant's alternative question on page 4 of its April 4, 2000 Application. The Arbitral Tribunal is thus not answering Claimant's question, paragraphs (a), (b) and (c).
Operative conclusions
1. [Claimant]'s first question
What is the correct interpretation of the words « claims arising under the Joint Operating Agreement » ?
is answered as follows : The « claims » arising under the Joint Operating Agreement means matters in dispute which may be necessary elements for the determination of claims in this arbitration, even though those matters in dispute are not themselves expressed as « claims » herein.
2. [Claimant]'s second question
What is the correct interpretation of the words '[Claimant]'s claims, as submitted in this present arbitration » ?
is answered as follows : « [Claimant]'s claims » are those claims that are expressed as « claims » herein. As now further clarified by [Claimant]'s request for interpretation, see footnote 4 and paragraph 10b, all [Claimant]'s claims (including breach of fiduciary duty and duty as agent) arise only under the Assignment Agreement and not under the Joint Operating Agreement or otherwise.
3. [Claimant]'s third question
Are these words to be interpreted as referring to claims brought by the Claimant in the present arbitration ?
is answered above.
4. The same is true as regards [Claimant]'s fourth question :
If so, what are these claims ?'
Affaire n° 10189
Date de l'addendum : mai 2001
Lieu de l'arbitrage : San Diego, Etats-Unis
'1. Introduction
This is an Addendum to the Final Award dated 4 December 2000 in Case No. 10189 [...] between [Claimant] and [Respondent]. This Addendum constitutes part of the Final Award pursuant to Article 29(3) of the ICC Rules of Arbitration. [Page86:]
The Application for Correction and/or Interpretation of the Award was made by [Respondent] in a document dated 5 January 2001 and comprising some 11 pages. [Claimant] replied in a document dated 23 February 2001 comprising some 13 pages together with exhibits A to H. [Respondent] provided a reply submission of some 11 pages dated 27 February 2001. [Claimant] provided a final response of some 12 pages dated 4 March 2001.
2. Submission of the Parties
2.1 [Respondent]'s Submissions
In its original Application for Correction and/or Interpretation of the Arbitral Award, [Respondent] sought the issuance of an addendum as follows :
Notwithstanding any statement or indication in the Award to the contrary :
A. [Claimant] shall not be entitled to share in any portion of royalties [Respondent] receives from DMs 2 after August 31, 2006 ;
B. [Claimant] shall not be entitled to share in any portion of royalties [Respondent] receives from Non-DMs after January 31, 2001 ; and
C. [Claimant] shall not be entitled to share in any portion of royalties [Respondent] receives from Non-DMs which are not [of state X] or from Non-DMs to whose licensure [Claimant] has consented in writing.
In relation to the first correction or interpretation sought, [Respondent] contended as follows :
In the Award, the Arbitral Tribunal set forth its conclusions that Phase III of the [Agreement] expired in May or June of 1995 and that the DM royalty-sharing obligation survived the expiration of Phase III. The Arbitral Tribunal also determined that the duration of this obligation is limited. Specifically, the Arbitral Tribunal also determined that the DM royalty-sharing obligation ends 13 years after the date [Respondent] licensed the DMs. As stated in the Award :
Since the parties agree the DM licenses were granted at the end of August 1993, and since the date 13 years later is August 31, 2006, [Respondent]'s contractual obligation to share a portion of DM royalties with [Claimant] will end August 31, 2006.
[Respondent] then referred to the declaration which was made in paragraph 2(b) of Section J of the Final Award (pages 41-42), and contended as follows :
Notwithstanding the conclusion of the Arbitral Tribunal and of the parties that DM royalty-sharing is of limited duration, the Award includes language that is susceptible of [Page87:] an interpretation that such royalty-sharing must continue for so long as [Respondent] receives applicable DM royalties :
[Respondent] respectfully submits inclusion of the following statement in an addendum to the Award would appropriately address this discrepancy : « Notwithstanding any indication or suggestion in the Award to the contrary, [Claimant] shall not be entitled to share in any portion of royalties which [Respondent] receives from DMs after August 31, 2006. »
As far as the second correction or interpretation sought by [Respondent] is concerned, [Respondent] contended that declaration 2(b) of Section J of the Final Award could be construed as requiring [Respondent] to share with [Claimant] a specified portion of Non-DM royalties for so long as [Respondent] receives such royalties. [Respondent] contended that such a duration would be inconsistent with the [Agreement] and with the rationale which the Arbitral Tribunal articulated in the Award and with the positions the parties had articulated in the arbitration. [Respondent] submitted :
In the Award, the Arbitral Tribunal set forth its conclusion that [Respondent] had violated the restriction against licensing certain Non-DMs without [Claimant]'s consent. The Arbitral Tribunal also determined, however, that the duration of this restriction is limited. Specifically, the Arbitral Tribunal found and concluded that the restriction ends seven years after commencement of Phase III of the [Agreement].
As stated in the Award :
Since the parties agree Phase III commenced no later that January 1994, and since the date seven years later is January 31, 2001, the contractual restriction against licensing certain Non-DMs without [Claimant]'s consent will end on January 31, 2001.
However, notwithstanding the conclusion of the Arbitral Tribunal and of the parties that the restriction is of limited duration, the Award includes language that is susceptible of an interpretation that the (remedial) Non-DM royalty-sharing must continue not just until January 31, 2001 (the date the restriction expires), but rather for as long as [Respondent] receives applicable Non-DM royalties :
[Respondent] respectfully submits inclusion of the following statement in an addendum to the Award would appropriately address this discrepancy : [Page88:]« Notwithstanding any indication or suggestion in the Award to the contrary, [Claimant] shall not be entitled to share in any portion of Non-DM royalties which [Respondent] receives after January 31, 2001. »
The third correction or interpretation sought by [Respondent] is based on the following contention :
In identifying the royalties to which the remedial Non-DM royalty-sharing is to apply, the Award limits the universe of applicable royalties (1) by type of equipment and (2) by market. Thus, the Award states that the universe of applicable royalties is to be comprised of « royalties received…for sales of infrastructure and subscriber equipment for CDMA-based digital cellular systems, CDMA-based personal communications systems, and CDMA-based wireless PABX systems, for use in [state X]… » The Award is susceptible of an interpretation, however, that it does not limit the universe of applicable royalties by (3) nationality of manufacturer or (4) by existence of [Claimant] consents. However, as discussed below at pages 7-11, the absence of these latter two limitations would be inconsistent with the [Agreement], with the rationale the Arbitral Tribunal articulated in the Award interpreting the [Agreement], and with the positions the parties articulated in the arbitration.
[Respondent] submitted :
[Respondent] respectfully submits inclusion of the following statement in an addendum to the Award would appropriately address this discrepancy : « Notwithstanding any indication or suggestion in the Award to the contrary, [Claimant] shall not be entitled to share in any portion of royalties which [Respondent] receives from Non-DMs who are not [state X] manufactures or from Non-DMs [...] to whose licensure [Claimant] has consented in writing. »
2.2 [Claimant]'s Submissions
[Claimant] submitted that the corrections or interpretations sought by [Respondent] were not corrections of a nature which fell within Article 29(2) of the ICC Rules of Arbitration, but were an attempt by [Respondent] to seek to rewrite the Final Award.
In relation to the first correction or interpretation sought by [Respondent], [Claimant] stated that it was improper because it would limit [Claimant]'s royalty-sharing to payments by the DMs which are received by [Respondent] on or before 31 August 2006, however, Sections 8.1.3 and 8.2.3 of the [Agreement] referred to a period of sales not to a period of receipt of the proceeds of such sales. [Claimant] contended as follows :
First, [Respondent]'s proposed Addendum (A) is improper because, as drafted, it would limit [Claimant]'s royalty sharing to payments by the DMs which are received by [Respondent] on or before August 31, 2006. Section 8.3 of the [Agreement], however, has no time limitation on [Respondent]'s obligation to share royalties with [Claimant]. The only time limitation, as set forth in Sections 8.1.3 and 8.2.3, provides that the DMs' royalties to [Respondent] shall cease to be payable with respect to sales by the DMs thirteen years after the license grant. Thus, for example, [Claimant] is entitled to royalties based on sales by the DMs made on August 31, 2006 even if [Respondent] does not receive its royalty payment from the DMs until after August 31, 2006. [Respondent]'s proposed Addendum (A) would unfairly allow [Respondent] to avoid sharing royalties with [Claimant] simply by postponing its collection of royalties until after August 31, 2006.
[Claimant] also contended, inter alia, that if the Tribunal adopted [Respondent]'s proposal to limit [Respondent]'s obligation to share royalties to a specific date,[Page89:][Respondent] could attempt to avoid its royalty sharing obligation by re-negotiating the terms of each DM licence.
In relation to the second correction or interpretation sought, [Claimant] contended that this was misguided for two reasons. First, [Respondent]'s argument ignored the distinction between its breach of the [Agreement] by granting licences to non-DMs without [Claimant]'s consent within the seven year approval period and damages that flow from such a breach ; damages which may accrue both inside and outside the seven year approval period. Second, [Respondent] waived this argument by failing to assert it during the arbitration.
In relation to third correction or interpretation sought, [Claimant] contended that it should be rejected because it would unfairly deprive [Claimant] of royalties from PCS, Wireless PABX and infrastructure equipment sales by nonDMs whom [Respondent] licensed without [Claimant]'s consent.
3. Determination
In paragraph 2(b) of Section J of the Final Award, the Tribunal declared, inter alia, that [Respondent] must share with [Claimant] 20 % of the royalties received from DMs for sale of equipment for use in [state X] « for so long as [Respondent] receives such royalty payments ». Subarticles 8.1.3 and 8.2.3 provide that royalties payable by DMs shall cease to be payable with respect to sales in [state X] upon the expiration of 13 years after the licence grant. It is common ground that this date is 31 August 2006. It follows that the phrase « for so long as [Respondent] receives such royalty payments » in paragraph 2(b) of Section J of the Award, insofar as it applies to DMs, means royalty payments up to 31 August 2006. To avoid any misinterpretation, it is appropriate to clarify this. The Tribunal believes that the appropriate clarification is one which refers to sales up to 31 August 2006, rather than to royalties received up to that date. Otherwise, royalties received after that date, but in respect of sales made prior to that date, would not be encompassed. Thus, the following clarification is appropriate :
[Claimant] shall not be entitled to share in any portion of royalties [Respondent] receives from DMs with respect to sales in [state X] occurring after 31 August 2006.
The second correction or interpretation sought by [Respondent] concerns the sharing of royalties received from non-DMs. The Tribunal has noted, in the top paragraph of page 11 of the Final Award, that Sub-article 8.4 requires [Respondent] to obtain [Claimant]'s consent to non-DMs licences for 7 years after the commencement of Phase III. This 7 year period expired on 31 January 2001. [Respondent] could license non-DMs after that date without [Claimant]'s consent and there is no obligation under the [Agreement] to share royalties with respect to non-DMs licensed after 31 January 2001. It follows that the obligation of [Respondent] to share royalties with [Claimant] with respect to non-DMs, which the Arbitral Tribunal has established in the Final Award, must cease on 31 January 2001. It is necessary to clarify the declaration made in paragraph 2(b) of Section J of the Award to make this clear. Accordingly, the following interpretation is appropriate :
[Claimant] shall not be entitled to share any royalties [Respondent] receives from sales in [state X] by non-DMs occurring after 31 January 2001.
The third correction or interpretation sought by [Respondent] relates to royalties received by [Respondent] from non-DMs which are not [of state X] or from non-DMs to whose licensure [Claimant] has consented in writing. [Page90:]
It was implicit in the reasoning of the Arbitral Tribunal, contained in the Final Award, that the obligation imposed on [Respondent] to share royalties received from non-DMs did not apply to royalties received from non-DMs to whose licensure [Claimant] had consented in writing. Thus, for example, on the top of page 5 of the Final Award, the Tribunal specifically referred to Subarticle 8.4 of the [Agreement] (which required [Claimant]'s consent to the licensing of certain non-DMs for a period of 7 years). Moreover, it is also implicit in the Award that there is no obligation on [Respondent] to share royalties received from non-DMs who are not [of state X]. Thus, on page 36 of the Final Award, the Tribunal reproduced Sub-article 8.4 of the [Agreement] which clearly provides that there is no obligation imposed on [Respondent] to obtain [Claimant]'s consent to licence non-[state X] manufacturers. It is appropriate, therefore, to issue an interpretation which makes it clear that the declaration contained in paragraph 2(b) of Section J of the Award is not intended to embrace these two situations.
The following interpretation is therefore appropriate :
[Claimant] shall not be entitled to share any royalties [Respondent] receives from non-DMs which are not [of state X] or from non-DMs to whose licensure [Claimant] has consented in writing.
4. Declarations
For the avoidance of doubt, the Tribunal declares that the Final Award is to be interpreted so that :
A. [Claimant] shall not be entitled to share in any portion of royalties [Respondent] receives from DMs with respect to sales in [state X] occurring after 31 August 2006 ;
B. [Claimant] shall not be entitled to share any royalties [Respondent] receives from sales in [state X] by non-DMs occurring after 31 January 2001 ; and
C. [Claimant] shall not be entitled to share any royalties [Respondent] receives from non-DMs which are not [of state X] or from non-DMs to whose licensure [Claimant] has consented in writing.'
Affaire n° 10386
Date de l'addendum : avril 2000
Lieu de l'arbitrage : Seattle, Etats-Unis
'1. Preamble
1.1 The Consent Award in this matter, dated 10 March 2000, has been delivered by the International Chamber of Commerce International Court of Arbitration (« ICC »).
1.2 The Arbitral Tribunal has noted two typographical errors in the Consent Award.
1.3 The Arbitral Tribunal therefore has prepared an addendum to its award containing corrections to the typographical errors.
1.4 The addendum was submitted for the approval of the Court within 30 days of the date of such award, in terms of Article 29(1) of the ICC Rules.
2. Addendum to Award
2.1 Articles 4.1.1 and 4.1.2 of the Consent Award dated 10 March 2000 should now read: [Page91:]
(a) 4.1.1 Orders the Respondent, [...], to pay the Claimant, [...], the sum of Japanese Yen ("¥") *,***,***,***.
(b) 4.1.2 Orders the Respondent, [...], to pay the Claimant, [...], the sum of ¥ ***,***,*** by way of interest from 27 March 1998 to 2 February 2000.
2.2 In all other respects, the award is confirmed.'
Affaire n° 10609
Date de l'addendum : juillet 2001
Lieu de l'arbitrage : Londres, Royaume-Uni
'Whereas the Arbitral Award in the dispute between [Claimant] and [Respondent] rendered on 9 May 2001 was notified to the Parties by the International Court of Arbitration on 17 May 2001 ;
Whereas by request of 21 May 2001 [Claimant] applied for the correction of a computational error appearing in paragraph 97 of the Award in accordance with Art. 29 of the ICC Rules of Arbitration ;
Whereas [Respondent] on 8 June 2001 commented on the application made by [Claimant] in conformity with Art. 29 paragraph 2 of the ICC Rules of Arbitration ;
Whereas [Claimant] replied to [Respondent]'s comments by letter on 14 June 2001 ;
Whereas having considered Claimant's application, Respondent's comments and Claimant's reply thereto, the Arbitral Tribunal has decided to issue an Addendum which shall constitute part of its Final Award of the 9 May 2001.
Whereas the English Arbitration Act of 1996 paragraph 57 (3) (a) provides for the correction or interpretation of an Award by an Arbitral Tribunal sitting in London.
Claimant has requested that the Arbitral Tribunal correct the Final Award on the ground that it made an error in computation. The Tribunal did in fact deduct from the purchase price an amount of [...] paid by Respondent as of a pre-closing deposit of [...] and then also deducted the entire [...] deposit from the amount of damages found. The Tribunal thus deducted [...] from the purchase price twice and corrects the award by adding [...] to the amount of damages specified in the Award. The amount of damages awarded is therefore [...]
Paragraph 97 of the Award shall therefore be corrected accordingly and the disposition of the Final Award of 9 May 2001 be read as follows:
Disposition
It is for the foregoing reasons that the Tribunal rules, directs, and orders:
1. [Respondent] shall pay [Claimant] an amount of [...] with interest at 10 percent per annum from 1 August 1999 to the date of payment. [Page92:]
2. [Respondent] shall pay all costs of this arbitration, including the administrative costs of the ICC International Court of Arbitration and the fees and expenses of the arbitrators as determined by the ICC Court of International Arbitration in a total amount of [...] and therefore reimburse to [Claimant] its deposit of [...]
3. [Respondent] shall pay [Claimant] an amount of [...] to defray in part the cost of [Claimant]'s legal assistance.
4. If enforcement is sought of this award in a country other than the United States and, under the law of that country, the amounts awarded must be converted into local currency, the enforcement authorities of that country are requested to direct that the conversion into local currency be made, at the option of [Claimant], at the exchange rate in effect at the time of the rendering of this Addendum to the Final Award, the date of the Final Award, the date of the decision of enforcement, or the date of payment. The purpose of this request is to avoid that [Respondent] benefit from any possible fluctuation in the exchange rate.
5. All other claims by [Claimant] are rejected and denied.
6. [Respondent]'s counterclaims and demands are rejected and denied.'
L'un des co-arbitres a ajouté la phrase suivante :
'Since I concur in the above correction of the Award, the amount of damages I considered appropriate in my separate opinion must also be increased by [...]'
Date de la « décision » : novembre 2001
'By request of 23 August 2001 [Claimant] applied for correction of an error in the Tribunal's Addendum, notified to the parties on 3 August 2001.
Regardless of whether Article 29 of the ICC Rules of 1998 permits a request for correction of an addendum correcting a final award after expiration of thirty days of the receipt of the original award, [Claimant]'s second request, in substance, reiterates a request upon which the Tribunal has already ruled and is therefore inadmissible. That being so, the Tribunal need not rule either on whether [Claimant]'s second request is admissible under Art. 57.4 of the English Arbitration Act of 1996.'
Affaire n° 10820
Date de la « décision » : octobre 2001
'La société [défenderesse], rappelant que la sentence l'a condamnée au paiement d'une somme de [...] au titre de la rupture du contrat d'agence commercial et d'une somme de [...] au titre de la brusque rupture du contrat d'agence, expose que le [Page93:] Tribunal Arbitral a tenu compte de toutes les sommes représentatives des frais de l'agent pour le calcul de l'indemnité de rupture, alors que le calcul de l'indemnité pour brusque rupture ne les retient que partiellement, et qu'ainsi l'indemnité de rupture est calculée sur une base annuelle différente de celle utilisée pour le calcul de l'indemnité pour brusque rupture.
[. . . . . . . . .]
La société [défenderesse], considérant que cette différence d'approche dans la prise en compte des frais de l'agent constitue une erreur matérielle, demande de rectifier le montant calculé pour l'indemnité de rupture en reprenant une base annuelle identique à celle retenue pour le calcul de l'indemnité de brusque rupture.
[L]a demande de la société [défenderesse] est irrecevable par son objet. En effet, sous couvert d'une demande en rectification d'erreur matérielle, la société [défenderesse] demande en fait au Tribunal Arbitral de réviser sa sentence pour des raisons de fond.
Le raisonnement de la société [défenderesse] consiste à dire que le calcul de l'indemnité de rupture doit être fondé sur les mêmes bases que le calcul de l'indemnité de brusque rupture, et au surplus que les bases retenues pour le calcul de l'indemnité de rupture doivent s'aligner sur celles retenues pour le calcul de l'indemnité de brusque rupture, et non l'inverse.
Ce faisant, la société [défenderesse] défend une position juridique qui n'est pas celle retenue par le Tribunal Arbitral dans la sentence. Elle tend à démontrer que le Tribunal aurait commis non une erreur matérielle, mais une erreur sur le fond de son raisonnement. Si le Tribunal Arbitral faisait droit à la demande de la société [défenderesse], outre le fait qu'il considère cette demande erronée, il modifierait en tout état de cause substantiellement la motivation et le montant des condamnations prononcées et agirait au-delà de ce qui lui est permis dans le cadre d'une action en rectification d'erreur matérielle.
[Le demandeur] demande au Tribunal Arbitral de dire que la procédure suivie par la société [défenderesse] est abusive et dilatoire et de condamner celle-ci à une somme de [...] pour procédure abusive ainsi qu'à une somme de [...] et aux dépens conformément à l'article 31 du Règlement. [Le demandeur] expose également que le Tribunal Arbitral aurait commis une erreur de calcul dans sa sentence.
En ce qui concerne tout d'abord l'erreur de calcul dont l'existence est alléguée par [le demandeur], le Tribunal constate que [le demandeur] ne formule aucune demande tendant à ce que cette erreur soit rectifiée. Le Tribunal Arbitral considère par conséquence qu'en l'absence de saisine à ce sujet, il n'a pas à statuer sur la question ainsi soulevée.
En vertu de la clause d'arbitrage, le Tribunal Arbitral ne peut être saisi que de litiges afférents au contrat ayant lié les parties. La demande [du demandeur] de dommages-intérêts pour procédure abusive se rattache aux difficultés d'exécution de la sentence arbitrale. La demande [du demandeur] pour procédure abusive, qui n'entre pas dans les prévisions de la clause d'arbitrage ou de ses suites, est donc irrecevable.
En revanche, la demande de rectification matérielle est un incident de procédure qui se rattache directement à la procédure d'arbitrage. Le Tribunal Arbitral a donc le pouvoir de statuer sur les frais de l'incident de la même manière que sur les frais de [Page94:] la procédure principale en application de l'article 31 du Règlement. Notamment, en vertu de l'alinéa 2 de l'article 31, le Tribunal Arbitral peut prendre à tout moment de la procédure des décisions sur des frais autres que ceux fixés par la Cour.
La Cour internationale n'ayant pas fixé de frais administratifs, les frais de l'incident se limitent aux frais raisonnables encourus par les parties à l'occasion de cette procédure. La somme de [...] réclamée par [le demandeur] paraissant raisonnable, et la société [défenderesse] succombant à ses prétentions, le Tribunal Arbitral condamnera la société [défenderesse] à payer [au demandeur] la somme de [...]
Par ces motifs
Le Tribunal Arbitral:
- déboute la société [défenderesse] de sa demande en rectification d'erreur matérielle,
- condamne la société [défenderesse] à payer [au demandeur] la somme [...] au titre des frais de l'incident,
- déboute [le demandeur] de sa demande en dommages-intérêts pour procédure abusive.'
Affaire n° 10888
Date de l'addendum <sup><a href="#footnote3">3</a></sup>: janvier 2002
'Procedural Issues
Form
Pursuant to Article 29(3) ICC Rules, the decision to correct the Award shall take the form of an addendum and shall constitute part of the Award. The provisions of Articles 25, 27 and 28 shall apply mutatis mutandis.
The Secretariat of the ICC International Court of Arbitration has specified in this respect that where the Arbitral Tribunal decides to correct the Award, this decision shall take the form of an addendum, which shall be part of the Award. On the other hand, where the Arbitral Tribunal reaches the conclusion that there is no need to correct the Award and thus rejects the application for correction, this shall take the form of a « decision ». [...]
so that an addendum to the final award and an award on costs are necessary (see Article 31 ICC Rules).
Costs
On the one hand, Claimants have requested that the costs of the Motion to Correct Award, including attorney's fees, be assessed against Respondents. They have evaluated these costs in the amount of [...]
On the other hand, Respondents have submitted that Claimants should bear any additional costs imposed by the ICC International Court of Arbitration, as well as legal costs incurred in connection with the Motion to Correct Award, in an amount estimated at [...] They have also claimed that the award should be subject to an appropriate set-off reflecting such costs.
Regarding the latter issue, it should be noted that the present ruling upon application for correction pursuant to Article 29 ICC Rules does not encompass such set-off against the amount awarded in the Final Award. Not only would it imply further examination of facts and legal issues but it also does not comply with this Arbitral Tribunal's brief, particularly Terms of Reference, especially within an application for correction of a Final Award.
In conclusion, Claimants do not prevail and the Final Award will not be corrected. Respondents' requested relief is also dismissed but it did not generate much work for the Arbitral Tribunal or for the Claimants' counsel to respond.
It is thus fit to have Claimants bear most of the costs of this correction proceeding. However, the spirit of correction proceedings being to generate an addendum to the main proceedings and not to bring new proceedings, it seems right to limit the costs of such proceedings in the present case. This results in the ICC and the arbitrators waiving any remuneration [...] and it is thus appropriate to reduce the amount Claimants shall pay to Respondents as a compensation for their legal fees, whatever the amount of work performed.
Therefore, it is decided that Claimants shall bear the costs of this proceeding and pay [...] due as contribution for the legal costs incurred by Respondents in this matter.
Addendum to Final Award
This Arbitral Tribunal :
Dismisses Claimants' Motion to Correct Award.
Orders that Claimants shall pay to Respondents [...] as a compensation for their attorney's fees.'
1 Voir B.W. Daly, « La correction et l'interprétation de la sentence arbitrale dans le cadre du règlement d'arbitrage de la CCI » à la p. 72, notes 51 et 52.
2 Designated Manufacturers
3 Voir B.W. Daly, « La correction et l'interprétation de la sentence arbitrale dans le cadre du règlement d'arbitrage de la CCI » à la p. 71, note 44 et le texte correspondant à celle-ci.