Professional Documents
Culture Documents
Final Award between W., a Corporation organized and existing under the
laws of the Republic of X. (Claimant) and F.,a State agency (Defendant I).
and
a bank authorized and existing under Y. law (Defendant 2), rendered
by the Arbitral Tribunal consisting of Messrs. Hilmar Raeschke-Kessler
(Chairman). Me. Jean Patry and Prof. Dr. Dobrosav Mitrovic.
a,
FACTS
1.1)
1.
2.
'
See also above, p. 222, the decision on appeal of the Swiss Federal Tribunal of 30.12.1994
De toute Cvidence, un Tribunal arbitral est prive des moyens dont dispose
la Commission de la Communaute (ainsi que, au-dessus d'elle, la Cour de
Justice dans sa fonction de contrble) pour se livrer a ces apprkciations
Cconomiques complexes et ces etudes de marche. On se bornera a constater ici
l'existence de cette difficult6 considerable, qui semble avoir CchappC a
l'attention du Tribunal federal en son arrCt du 28 avril 1992 ainsi, d'ailleurs, qu'a
un savant commentateur de cette decision (prof. L. Idot, Revue de I'arbitrage
1993, no 1, pp. 128-136); dans une interessante note a la suite de I'arrCt, l'auteur
observe d'abord que si le Tribunal fCdCral a justement observi. que rien
n'emdchait les arbitres d'appliquer le droit communautaire, le vrai problbme
Ctait de savoir s'il y avait obligation pour eux d'appliquer ce droit, ce que I'arrCt
semble admettre implicitement sans en expliquer les raisons. Quant a la
question de savoir si l'application du droit communautaire de la concurrence
"reprksente pour les arbitres une charge excessive", question negligee par I'arrCt,
l'auteur y rCpond succinctement par la nCgative, de la faqon suivante : "il est
evident qu'un arbitre ne dispose pas des mCmes moyens que la DG IV, mais on
ne lui demande pas d'Ctablir la preuve de pratiques anticoncurrentielles
complexes, requkrant des mois d'enquCte et il lui suffit de se prononcer sur la
liceit6 d'un contrat".
Final Award between W., a Corporation organized and existing under the
laws of the Republic of X. (Claimant) and F.,a State agency (Defendant I).
and
a bank authorized and existing under Y. law (Defendant 2), rendered
by the Arbitral Tribunal consisting of Messrs. Hilmar Raeschke-Kessler
(Chairman). Me. Jean Patry and Prof. Dr. Dobrosav Mitrovic.
a,
FACTS
1.1)
1.
2.
'
See also above, p. 222, the decision on appeal of the Swiss Federal Tribunal of 30.12.1994
"Dear Sirs,
... Agreement in B.
The MOD also handed circular Nr. 4 A188 to Defendant 1). Circular
Nr. 4 A188 u.a. obliges the partners to contracts with MOD to refrain
from paying moneys to an agent. The partner also has to assure to the
MOD that his prices do not contain commissions for agents or similar
moneys. It is disputed between the parties whether Defendant 1)
already knew of the MOD-circular and of circular Nr. 4 A188 when
concluding the ...... Agreement with Claimant, and whether the MoDcircular is applied by the Z. authorities.
3)
"Dear Sirs,
... Agreement in B.
The MOD also handed circular Nr. 4 A188 to Defendant 1). Circular
Nr. 4 A188 u.a. obliges the partners to contracts with MOD to refrain
from paying moneys to an agent. The partner also has to assure to the
MOD that his prices do not contain commissions for agents or similar
moneys. It is disputed between the parties whether Defendant 1)
already knew of the MOD-circular and of circular Nr. 4 A188 when
concluding the ...... Agreement with Claimant, and whether the MoDcircular is applied by the Z. authorities.
3)
5)
6)
11.
B.
Arbitration Procedure
C.
REASONS
I.
Procedural Issues
1.
iI
I
(...I
I
2.
(...I
3.
4.
No Security on Costs
,
I
Defendants are of the opinion that they are entitled to demand from
Claimant a security for the procedural costs. Defendant 1) moved the
Arbitral Tribunal to order Claimant to deposit US-$600.000,- as
security for procedural costs Defendant 2) made the same motion. The
Arbitral Tribunal dismissed the motions in Order No. 5 sect. 3 of .....,
and announced that the reasons will be given in the Arbitral Award.
The decision is based on the following considerations:
Defendant 1) gave as the main reason for its motion that Claimant is
an off-shore-company in X. without any assets, except US-$ 10.000,distributed as the share capital. X. is the Claimant's state of domicile,
and Y. has no bilateral convention of securing the costs of arbitral
procedures. If Defendant were to win the case, Art. 26 of the ICCrules could not be implemented and respected.
5)
6)
11.
B.
Arbitration Procedure
C.
REASONS
I.
Procedural Issues
1.
iI
I
(...I
I
2.
(...I
3.
4.
No Security on Costs
,
I
Defendants are of the opinion that they are entitled to demand from
Claimant a security for the procedural costs. Defendant 1) moved the
Arbitral Tribunal to order Claimant to deposit US-$600.000,- as
security for procedural costs Defendant 2) made the same motion. The
Arbitral Tribunal dismissed the motions in Order No. 5 sect. 3 of .....,
and announced that the reasons will be given in the Arbitral Award.
The decision is based on the following considerations:
Defendant 1) gave as the main reason for its motion that Claimant is
an off-shore-company in X. without any assets, except US-$ 10.000,distributed as the share capital. X. is the Claimant's state of domicile,
and Y. has no bilateral convention of securing the costs of arbitral
procedures. If Defendant were to win the case, Art. 26 of the ICCrules could not be implemented and respected.
5.
'I
7.
cc)
5.
'I
7.
cc)
One party had brought forward a claim for damages against the other
at the beginning of the arbitration, and had added the claim for
consequential damages after the Terms of Reference had taken effect.
The Arbitral Tribunal awarded damages and consequential damages.
The US Court of Appeal held that the Arbitral Tribunal did not
thereby exceed its authority.
8.
(...>
a)
aa)
A claim is new and not within the limits of Art. 16 ICC-Rules only if
it raises issues of fact andlor law which are completely new compared
with the issues in dispute so far,
Carte Blanche (Singapore) v. Carte Blanche International, USCourt of Appeals, 2nd cir. (1989) p. 6297 et seq.; cf.
CraigParkIPaulsson, loc.cit., p. 255 et seq..
One party had brought forward a claim for damages against the other
at the beginning of the arbitration, and had added the claim for
consequential damages after the Terms of Reference had taken effect.
The Arbitral Tribunal awarded damages and consequential damages.
The US Court of Appeal held that the Arbitral Tribunal did not
thereby exceed its authority.
8.
(...>
a)
aa)
A claim is new and not within the limits of Art. 16 ICC-Rules only if
it raises issues of fact andlor law which are completely new compared
with the issues in dispute so far,
Carte Blanche (Singapore) v. Carte Blanche International, USCourt of Appeals, 2nd cir. (1989) p. 6297 et seq.; cf.
CraigParkIPaulsson, loc.cit., p. 255 et seq..
"... and we have stated that in our Final Plea, that we are not
asking for a double award. That is an award of $83-something
million against the bank and of $63-odd million against the
first defendant.
b)
In its Final Brief, Claimant also relied on the claim derived from Art.
11 1 CO. Therefore there is no substantial change of the basis of claims
directed against Defendant 2). As against Defendant I), the Claimant
slightly reduced the claims against Defendant 2), as compared with the
Replica, and to this extent withdrew the claim. This does not affect the
admissibility.
9.
a)
"... and we have stated that in our Final Plea, that we are not
asking for a double award. That is an award of $83-something
million against the bank and of $63-odd million against the
first defendant.
b)
In its Final Brief, Claimant also relied on the claim derived from Art.
11 1 CO. Therefore there is no substantial change of the basis of claims
directed against Defendant 2). As against Defendant I), the Claimant
slightly reduced the claims against Defendant 2), as compared with the
Replica, and to this extent withdrew the claim. This does not affect the
admissibility.
9.
a)
After the briefs were submitted, a hearing was scheduled for .... to .....,
for taking evidence and possibly for the Parties' Final Pleadings .
aa)
bb)
b)
aa)
After the briefs were submitted, a hearing was scheduled for .... to .....,
for taking evidence and possibly for the Parties' Final Pleadings .
aa)
bb)
b)
aa)
bb)
cc)
dd)
c)
10.
Admissible Evidence
a)
b)
bb)
cc)
dd)
c)
10.
Admissible Evidence
a)
b)
c)
aa)
bb)
Further, the majority of the Arbitral Tribunal hold that those exhibits
presented by Claimant are admissible without restrictions to which
Defendant 1) is a party. This follows from sect. H IV 3 of the Terms
of Reference and from Order No. 5 sect. 1, of .......
Order No. 5 is directed not only to the Claimant but to all Parties. As
the conclusion of the M-84-contract and of the construction-contract
between the MODand Defendant 1) is undisputed, it was Defendant 1)
who had to present the originals of the contracts, which it possesses.
Any obligations to secrecy it may have towards the MOD cannot be
held against the Claimant because Defendant 1) in sect. 7 of the
Agreement of ....... agreed to full cooperation, and to "exchange all
information and documents necessary or desirable to enable each other
to fulfill their duties under this Agreement".
c)
aa)
bb)
Further, the majority of the Arbitral Tribunal hold that those exhibits
presented by Claimant are admissible without restrictions to which
Defendant 1) is a party. This follows from sect. H IV 3 of the Terms
of Reference and from Order No. 5 sect. 1, of .......
Order No. 5 is directed not only to the Claimant but to all Parties. As
the conclusion of the M-84-contract and of the construction-contract
between the MODand Defendant 1) is undisputed, it was Defendant 1)
who had to present the originals of the contracts, which it possesses.
Any obligations to secrecy it may have towards the MOD cannot be
held against the Claimant because Defendant 1) in sect. 7 of the
Agreement of ....... agreed to full cooperation, and to "exchange all
information and documents necessary or desirable to enable each other
to fulfill their duties under this Agreement".
cf.
11.
Substantive Issues
1)
a)
c)
The Defendants also allege that mandatory laws of the State of Z. are
violated; this will be discussed separately under 111.
2.
cf.
11.
Substantive Issues
1)
a)
c)
The Defendants also allege that mandatory laws of the State of Z. are
violated; this will be discussed separately under 111.
2.
3.
The Agreement of ...... is not invalidated for the reason that the Parties
agreed to give merely the Claimant's mailing address in L. rather than
the corporation's domicile in X.
b)
b)
Under sect. 16 of the Agreement the Claimant merely gave a telefaxor telex-number for the notices to be sent, but did not name a person
as Defendant 1) named "Col. S.". The Tribunal holds that this does not
affect the Agreement.
If anything, this might be a lack of consent in a minor issue, which
does not invalidate an agreement,
BGE 103 I1 190, 194.
Art. 2 sect. 1 CO expresses the general legal concept of favor
contractus if the parties have agreed on all contractual issues of
objective relevance,
KramerISchmidlin, Berner Kommentar, Art.2 Co, ann. 17 et
seq.; Bucher, loc.cit., p. 126.
The Arbitral Tribunal is convinced that any incompleteness in sect. 16
of the Agreement did not prevent Defendant 1) from making contact
with the Claimant while the Agreement was in force, as documented
by its letter of ..... on whose legal effects Defendant 1) relies. Col. S.,
3.
The Agreement of ...... is not invalidated for the reason that the Parties
agreed to give merely the Claimant's mailing address in L. rather than
the corporation's domicile in X.
b)
b)
Under sect. 16 of the Agreement the Claimant merely gave a telefaxor telex-number for the notices to be sent, but did not name a person
as Defendant 1) named "Col. S.". The Tribunal holds that this does not
affect the Agreement.
If anything, this might be a lack of consent in a minor issue, which
does not invalidate an agreement,
BGE 103 I1 190, 194.
Art. 2 sect. 1 CO expresses the general legal concept of favor
contractus if the parties have agreed on all contractual issues of
objective relevance,
KramerISchmidlin, Berner Kommentar, Art.2 Co, ann. 17 et
seq.; Bucher, loc.cit., p. 126.
The Arbitral Tribunal is convinced that any incompleteness in sect. 16
of the Agreement did not prevent Defendant 1) from making contact
with the Claimant while the Agreement was in force, as documented
by its letter of ..... on whose legal effects Defendant 1) relies. Col. S.,
in charge of the M-84-project for Defendant I), stated that "I sent
faxes confirming that I received the letter, that the delegation is going,
or that the delegation will be accepted or this sort of thing" .
4.
5.
a)
in charge of the M-84-project for Defendant I), stated that "I sent
faxes confirming that I received the letter, that the delegation is going,
or that the delegation will be accepted or this sort of thing" .
4.
5.
a)
d)
The text of sect. 2 of the Agreement does not require the Claimant to
prove its activities in favour of Defendant 1). The Arbitral Tribunal
considers this to exonerate Claimant from the burden of proof.
However, the dispute does not depend on this question since the
Claimant did in fact establish its activities to the satisfaction of the
Arbitral Tribunal.
c)
6.
d)
The text of sect. 2 of the Agreement does not require the Claimant to
prove its activities in favour of Defendant 1). The Arbitral Tribunal
considers this to exonerate Claimant from the burden of proof.
However, the dispute does not depend on this question since the
Claimant did in fact establish its activities to the satisfaction of the
Arbitral Tribunal.
c)
6.
a)
cf.
Col. S., in charge of the M-84-project for Defendant I), stated that he
studied the letters and arranged them in three groups. Most letters had
contained information on the exchange of delegations; these he kept to
himself. The second group was saying "you must try to convince your
partners or you must do everything to accept them nicely or so on".
The third group he sent on to the higher intermediary if they contained
something new such as the rocket launcher. He sent faxes to the
Claimant confirming receipt of letters, or relating to the delegations.
Col. S. also stated, upon question by the Arbitral Tribunal, that he
confirmed the receipt of some of Claimant's letters by his signature
and that he saw some letters by Claimant to Defendant 1) whose
receipt had been confirmed by Mr. D., then Y. ambassador to Z.
The statements of Col. S. and of Lt. General J. the director of
Defendant l), also establish that Defendant 1) did not object to the
contents of the Claimant's letters it received until ..... did not inform
Claimant until then that its services were not desired, considered
irrelevant or unvaluable.
b)
BGE 102 I1 234, 246; 101 I1 329, 331; 105 I1 16, 18;
KramerISchmidlin in Berner Kommentar, Art. 1,
ann. 102; GuhllMerzlKummer, loc.cit., p. 91.
from objecting that the services rendered by Claimant were not desired
and had no value.
c)
a)
cf.
Col. S., in charge of the M-84-project for Defendant I), stated that he
studied the letters and arranged them in three groups. Most letters had
contained information on the exchange of delegations; these he kept to
himself. The second group was saying "you must try to convince your
partners or you must do everything to accept them nicely or so on".
The third group he sent on to the higher intermediary if they contained
something new such as the rocket launcher. He sent faxes to the
Claimant confirming receipt of letters, or relating to the delegations.
Col. S. also stated, upon question by the Arbitral Tribunal, that he
confirmed the receipt of some of Claimant's letters by his signature
and that he saw some letters by Claimant to Defendant 1) whose
receipt had been confirmed by Mr. D., then Y. ambassador to Z.
The statements of Col. S. and of Lt. General J. the director of
Defendant l), also establish that Defendant 1) did not object to the
contents of the Claimant's letters it received until ..... did not inform
Claimant until then that its services were not desired, considered
irrelevant or unvaluable.
b)
BGE 102 I1 234, 246; 101 I1 329, 331; 105 I1 16, 18;
KramerISchmidlin in Berner Kommentar, Art. 1,
ann. 102; GuhllMerzlKummer, loc.cit., p. 91.
from objecting that the services rendered by Claimant were not desired
and had no value.
c)
b)
7)
a)
111.
In Particular: Agreement of
Activities of Claimant
b)
7)
a)
111.
In Particular: Agreement of
Activities of Claimant
The majority of the Arbitral Tribunal does not share the Defendants'
opinion. The Agreement of ..... is not invalid due to an infringement of
bona mores, Art. 19 LDIP, 19, 20 CO. It should be added that
numerous decisions of the Arbitral Tribunal regarding this section I11
of the Reasons were unanimous.
1)
a)
aa)
bb)
b)
The majority of the Arbitral Tribunal holds that the law of Z. is not to
be considered in this context. In sect. 9 of the Agreement the Parties
expressly chose Swiss law, thereby expressing that any laws of third
states conflicting with this Agreement should not be taken into
account by the Arbitral Tribunal.
aa)
Defendant 1) also argues that the Agreement of ..... is void because the
Claimant, a corporation domiciled in X., was unable to perform the
services stipulated in sect. 3 of the Agreement in Z. due to compulsory
provisions of Z. law. Under Art. 1 of the "Law No ... of .... Regulating
Commercial Agencies" only such legal or natural persons may engage
in commercial agency in Z. who are nationals of Z. The Claimant
objects that Z. law is not applicable to it because its shareholders Mr.
A. and Mr. G. are Z. nationals, which satisfies Z. law.
bb)
The majority of the Arbitral Tribunal does not share the Defendants'
opinion. The Agreement of ..... is not invalid due to an infringement of
bona mores, Art. 19 LDIP, 19, 20 CO. It should be added that
numerous decisions of the Arbitral Tribunal regarding this section I11
of the Reasons were unanimous.
1)
a)
aa)
bb)
b)
The majority of the Arbitral Tribunal holds that the law of Z. is not to
be considered in this context. In sect. 9 of the Agreement the Parties
expressly chose Swiss law, thereby expressing that any laws of third
states conflicting with this Agreement should not be taken into
account by the Arbitral Tribunal.
aa)
Defendant 1) also argues that the Agreement of ..... is void because the
Claimant, a corporation domiciled in X., was unable to perform the
services stipulated in sect. 3 of the Agreement in Z. due to compulsory
provisions of Z. law. Under Art. 1 of the "Law No ... of .... Regulating
Commercial Agencies" only such legal or natural persons may engage
in commercial agency in Z. who are nationals of Z. The Claimant
objects that Z. law is not applicable to it because its shareholders Mr.
A. and Mr. G. are Z. nationals, which satisfies Z. law.
bb)
did. Defendant I) was aware before signing the M-84-contract that the
Agreement of ...... was subject to immediate termination, as is evident
from its letter of ...... to the Claimant and the termination of ......,
shortly after.
a)
2)
b)
did. Defendant I) was aware before signing the M-84-contract that the
Agreement of ...... was subject to immediate termination, as is evident
from its letter of ...... to the Claimant and the termination of ......,
shortly after.
a)
2)
b)
3)
The Arbitral Tribunal holds that the Agreement of ..... would be null if
the Parties, when closing the Agreement, had intended that Claimant
was to effect the conclusion of a contract between MOD and the
Defendant 1) by illicit means, such as bribery. The Defendants did not
allege that the Parties jointly had such intentions, nor did the taking of
evidence convince the Arbitral Tribunal of such intentions.
a)
The Arbitral Tribunal has given special attention to this point because
the language of sect. 2 of the Agreement exonerates the Claimant from
any proof of its services. Combined with other circumstances, this
provision might imply joint illicit intentions of the Parties. However,
the copies of the Claimant's telefax letters to Defendant 1) establish
that Claimant did indeed render services.
The Arbitral Tribunal further holds that the amounts of fees agreed
upon in sect. 4 and 5 of the Agreement and the pertaining Amendment
I11 do not imply joint illicit intentions of the Parties. This does not
prejudice the question whether the fees are justified by Claimant's
services rendered, which will be discussed below.
Defendant 1) asserted that the stipulated fees are disproportionately
high and unusual. The Arbitral Tribunal holds that this circumstance
as such is not sufficient to invalidate the Agreement.
aa)
Principal and agent are free to stipulate the fees due to the agent. A
brokerage agreement is not invalid merely because an unusually high
commission is agreed upon. Excessive fees may be cut back to the
appropriate amount by the court at the principal's motion, under the
conditions specified in Art. 417 CO. The reduction is not effected ex
officio but only at the principal's request. If the principal pays the
excessive fee without reservation it cannot be reclaimed,
Mr. A.B, the lawyer who conducted the negotiations with the
Defendants for the Claimant, explained, concerning the amount of
fees, that he commenced the negotiations at 25% and went back to
15%, and to 20% for the spare parts. M.B. and Mr. D. , negotiating on
behalf of Defendant I), could not decide on this. The decision was
made by General T., then director of Defendant I), who accepted the
15% within 5 minutes. For Z., there were no "standard-commissions";
for "you don't get what you deserve, you get what you negotiate". He
had signed contracts with 25% commissions on huge amounts. Mr. A.
also stated that he took "whatever I could get".
The Claimant may have got the better of the Defendant 1) in
negotiating the fees. However, Art. 21 CO shows that this does not
invalidate the Agreement. Defendant 1) raised no substantiated
objections to the statements of Mr. AB. and Mr. A. concerning the
course of the negotiations and the amount of fees agreed upon. Neither
M.B. nor Lt. General T. or Mr. D., who was present during the
examination of Mr. AB, were called as witnesses.
The statements of Mr. AB. and Mr. A. do not point to illicit intentions
of the Parties on conclusion of the Agreement especially as Defendant
1) asserted that until receipt of the MOD-circularit had no reason to be
suspicious towards Claimant's intentions. The Arbitral Tribunal also
3)
The Arbitral Tribunal holds that the Agreement of ..... would be null if
the Parties, when closing the Agreement, had intended that Claimant
was to effect the conclusion of a contract between MOD and the
Defendant 1) by illicit means, such as bribery. The Defendants did not
allege that the Parties jointly had such intentions, nor did the taking of
evidence convince the Arbitral Tribunal of such intentions.
a)
The Arbitral Tribunal has given special attention to this point because
the language of sect. 2 of the Agreement exonerates the Claimant from
any proof of its services. Combined with other circumstances, this
provision might imply joint illicit intentions of the Parties. However,
the copies of the Claimant's telefax letters to Defendant 1) establish
that Claimant did indeed render services.
The Arbitral Tribunal further holds that the amounts of fees agreed
upon in sect. 4 and 5 of the Agreement and the pertaining Amendment
I11 do not imply joint illicit intentions of the Parties. This does not
prejudice the question whether the fees are justified by Claimant's
services rendered, which will be discussed below.
Defendant 1) asserted that the stipulated fees are disproportionately
high and unusual. The Arbitral Tribunal holds that this circumstance
as such is not sufficient to invalidate the Agreement.
aa)
Principal and agent are free to stipulate the fees due to the agent. A
brokerage agreement is not invalid merely because an unusually high
commission is agreed upon. Excessive fees may be cut back to the
appropriate amount by the court at the principal's motion, under the
conditions specified in Art. 417 CO. The reduction is not effected ex
officio but only at the principal's request. If the principal pays the
excessive fee without reservation it cannot be reclaimed,
Mr. A.B, the lawyer who conducted the negotiations with the
Defendants for the Claimant, explained, concerning the amount of
fees, that he commenced the negotiations at 25% and went back to
15%, and to 20% for the spare parts. M.B. and Mr. D. , negotiating on
behalf of Defendant I), could not decide on this. The decision was
made by General T., then director of Defendant I), who accepted the
15% within 5 minutes. For Z., there were no "standard-commissions";
for "you don't get what you deserve, you get what you negotiate". He
had signed contracts with 25% commissions on huge amounts. Mr. A.
also stated that he took "whatever I could get".
The Claimant may have got the better of the Defendant 1) in
negotiating the fees. However, Art. 21 CO shows that this does not
invalidate the Agreement. Defendant 1) raised no substantiated
objections to the statements of Mr. AB. and Mr. A. concerning the
course of the negotiations and the amount of fees agreed upon. Neither
M.B. nor Lt. General T. or Mr. D., who was present during the
examination of Mr. AB, were called as witnesses.
The statements of Mr. AB. and Mr. A. do not point to illicit intentions
of the Parties on conclusion of the Agreement especially as Defendant
1) asserted that until receipt of the MOD-circularit had no reason to be
suspicious towards Claimant's intentions. The Arbitral Tribunal also
a)
.I1.
b)
1
I
!!
5)
a)
.I1.
b)
1
I
!!
5)
a)
"Of course, W. did in fact lobby MOD on the S.'s behalf and
supply the S. with information on the status of its bids as well
as the bids of its competitors. W.'s activities were in perfect
accord with the laws of Switzerland, did not violate the laws of
Z., and were well-received by the S. during the first year of the
Agreement."
b)
b)
6)
a)
"Of course, W. did in fact lobby MOD on the S.'s behalf and
supply the S. with information on the status of its bids as well
as the bids of its competitors. W.'s activities were in perfect
accord with the laws of Switzerland, did not violate the laws of
Z., and were well-received by the S. during the first year of the
Agreement."
b)
b)
6)
The other one, I also lobbied the Minister of Finance that they
talk to the people in the Ministry of Defence also to give them
a chance, because Z. will really get benefit from that, they will
reduce their debts. This is a part of lobbying, gathering
information for them. It's not secret information to know what
would be the number of tanks they want, how much
ammunition they want, what would be the training procedures,
what would be the best for the Y. to work, to bring their people
to Z., to bring the people? This is part of the lobbying."
This describes some of the activities which the Claimant had
undertaken in sect. 3 of the Agreement in favour of Defendant 1). The
majority of the Arbitral Tribunal does not qualify this and the further
statements of Mr. A. as illicit activities.
Mr. A., credibly, explained this as protecting the Claimant's know how
against other agents, of British or American companies. The majority
of the Arbitral Tribunal does not see this as malicious intent or illicit
activities.
7)
Defendant 1) put its suspicion forward for the first time in its Final
Brief of ....., after the hearing of evidence, and repeated it in the oral
Final Pleadings held on .... and .... .
a)
The other one, I also lobbied the Minister of Finance that they
talk to the people in the Ministry of Defence also to give them
a chance, because Z. will really get benefit from that, they will
reduce their debts. This is a part of lobbying, gathering
information for them. It's not secret information to know what
would be the number of tanks they want, how much
ammunition they want, what would be the training procedures,
what would be the best for the Y. to work, to bring their people
to Z., to bring the people? This is part of the lobbying."
This describes some of the activities which the Claimant had
undertaken in sect. 3 of the Agreement in favour of Defendant 1). The
majority of the Arbitral Tribunal does not qualify this and the further
statements of Mr. A. as illicit activities.
Mr. A., credibly, explained this as protecting the Claimant's know how
against other agents, of British or American companies. The majority
of the Arbitral Tribunal does not see this as malicious intent or illicit
activities.
7)
Defendant 1) put its suspicion forward for the first time in its Final
Brief of ....., after the hearing of evidence, and repeated it in the oral
Final Pleadings held on .... and .... .
a)
b)
c)
d)
e)
b)
c)
d)
e)
IV.
1)
2)
aa)
No fees are due to Claimant on ..... from Defendant 1) for the 66 M84-tanks not yet delivered. The claim for fees and damages concerning
the 66 M-84-tanks does not become due until, and to the extent that,
Defendant 1) receives payment for its outstanding deliveries as
provided in the Agreement of.. ....
c)
The Arbitral Tribunal holds that Claimant has to prove what moneys
Defendant 1) received under the Agreement for the delivery of the 149
tanks until ...... The Arbitral Tribunal is satisfied that 60% of the total
value of the M-84-contract has been paid to Defendant 1). As Lt.
General J. stated the Defendant 1) so far has received about 60% of
the "total contract price". The Claimant has not proven its allegation
that Defendant 1) had received 75% of the total contract value, while
Mr. A. stated that he was "in a position to give to the exact cent" the
amount paid to Defendant 1).
aa)
a)
b)
IV.
1)
2)
aa)
No fees are due to Claimant on ..... from Defendant 1) for the 66 M84-tanks not yet delivered. The claim for fees and damages concerning
the 66 M-84-tanks does not become due until, and to the extent that,
Defendant 1) receives payment for its outstanding deliveries as
provided in the Agreement of.. ....
c)
The Arbitral Tribunal holds that Claimant has to prove what moneys
Defendant 1) received under the Agreement for the delivery of the 149
tanks until ...... The Arbitral Tribunal is satisfied that 60% of the total
value of the M-84-contract has been paid to Defendant 1). As Lt.
General J. stated the Defendant 1) so far has received about 60% of
the "total contract price". The Claimant has not proven its allegation
that Defendant 1) had received 75% of the total contract value, while
Mr. A. stated that he was "in a position to give to the exact cent" the
amount paid to Defendant 1).
aa)
a)
b)
The motion was submitted in the Replica of ....., the last day on which
Claimant was allowed to introduce new facts, allegations and means
of evidence into the arbitration procedure. Had the motion been
granted, Claimant could have exceeded the term of preclusion ending
on ....
bb)
15% thereof =
e)
US$ 46.099.140,36
-----------------------------------
The Claimant demands the fees of 20% of the contract value for the
spare parts and ammunition stipulated in the M-84-contract and in
Amendment 111. The Arbitral Tribunal dismisses this claim.
Amendment 111 is subject to reasonable interpretation in the principle
Agreement. Both
of good faith. Amendment 111 alters sect.5 of the
provisions show that they concern separate agreements on spare parts
etc., as apparent from the language "value of all contracts". This
obviously means subsequent contracts but not the original M-84contract which was the object of the .....-Agreement.
US$300.327.602,40
US$ 7.000.000,00
US$ 307.327.602,40
This Arbitral Award therefore does not preclude the Claimant from
raising new claims in a new procedure against Defendant 1) if more
M-84-tanks are delivered to the MOD and/or Defendant 1) receives
more payments for the delivery of M-84-tanks, in addition to the 60%
decided on herein, under the Agreement of ..... Any payments to
Defendant 1) which exceed 60% do not become res judicata by this
Award.
d)
60% thereof =
attachment =
total
US$ 500.546.004,-
The majority of the Arbitral Tribunal holds that the following amounts
are due to Claimant from Defendant 1) for the M-84-tanks delivered
and paid for under the M-84-Agreement:
The motion was submitted in the Replica of ....., the last day on which
Claimant was allowed to introduce new facts, allegations and means
of evidence into the arbitration procedure. Had the motion been
granted, Claimant could have exceeded the term of preclusion ending
on ....
bb)
15% thereof =
e)
US$ 46.099.140,36
-----------------------------------
The Claimant demands the fees of 20% of the contract value for the
spare parts and ammunition stipulated in the M-84-contract and in
Amendment 111. The Arbitral Tribunal dismisses this claim.
Amendment 111 is subject to reasonable interpretation in the principle
Agreement. Both
of good faith. Amendment 111 alters sect.5 of the
provisions show that they concern separate agreements on spare parts
etc., as apparent from the language "value of all contracts". This
obviously means subsequent contracts but not the original M-84contract which was the object of the .....-Agreement.
US$300.327.602,40
US$ 7.000.000,00
US$ 307.327.602,40
This Arbitral Award therefore does not preclude the Claimant from
raising new claims in a new procedure against Defendant 1) if more
M-84-tanks are delivered to the MOD and/or Defendant 1) receives
more payments for the delivery of M-84-tanks, in addition to the 60%
decided on herein, under the Agreement of ..... Any payments to
Defendant 1) which exceed 60% do not become res judicata by this
Award.
d)
60% thereof =
attachment =
total
US$ 500.546.004,-
The majority of the Arbitral Tribunal holds that the following amounts
are due to Claimant from Defendant 1) for the M-84-tanks delivered
and paid for under the M-84-Agreement:
a)
Interest
The Claimant demands 10% interest on the due claims calculated in
US$ and 15% on those calculated in Pound Sterling. To prove the
interest rates it has submitted an excerpt from the "Economist" of
October 20126, 1990. Exhibit .... shows the interest rates for prime
lending in the ..... and ....... valid on ......
The Claimant has maintained the interest claims in the Replica and in
the Final Brief. Although the Defendants contested the interest rates,
Claimant failed to specify its allegations or to offer hrther evidence.
The interest rates shown in exhibit ...... are daily interest rates which
the Arbitral Tribunal knows to have become invalid long since.
Claimant had to prove the applicable rate of interest for the entire
period of time and failed to do so.
The Claimant is therefore entitled only to the statutory interest rate of
5% pursuant to Art. 104 sect.1 CO, proof of higher damages lacking.
b)
c)
a)
Interest
The Claimant demands 10% interest on the due claims calculated in
US$ and 15% on those calculated in Pound Sterling. To prove the
interest rates it has submitted an excerpt from the "Economist" of
October 20126, 1990. Exhibit .... shows the interest rates for prime
lending in the ..... and ....... valid on ......
The Claimant has maintained the interest claims in the Replica and in
the Final Brief. Although the Defendants contested the interest rates,
Claimant failed to specify its allegations or to offer hrther evidence.
The interest rates shown in exhibit ...... are daily interest rates which
the Arbitral Tribunal knows to have become invalid long since.
Claimant had to prove the applicable rate of interest for the entire
period of time and failed to do so.
The Claimant is therefore entitled only to the statutory interest rate of
5% pursuant to Art. 104 sect.1 CO, proof of higher damages lacking.
b)
c)
V.
1)
2)
The Claimant's request in its letter of ...., and even more in the
lawyer's letter of ..... was clear. Claimant unequivocally demanded to
open an irrevocable letter of guarantee pursuant to sect.6 of the
Agreement and advised Defendant 2) that it was held to be in breach
of the Agreement and "fully responsible for all damages and legal
consequences arising from that breach".
b)
The clear language of the heading and the entire contents of sect. 6
show that it is not merely an accessory surety. In international
commerce, guaranty promises are regularly given by letter of
guarantee.
BGE 75 IT 49.
This is the intent expressed by the Parties in sect.6 of the Agreement.
V.
1)
2)
The Claimant's request in its letter of ...., and even more in the
lawyer's letter of ..... was clear. Claimant unequivocally demanded to
open an irrevocable letter of guarantee pursuant to sect.6 of the
Agreement and advised Defendant 2) that it was held to be in breach
of the Agreement and "fully responsible for all damages and legal
consequences arising from that breach".
b)
The clear language of the heading and the entire contents of sect. 6
show that it is not merely an accessory surety. In international
commerce, guaranty promises are regularly given by letter of
guarantee.
BGE 75 IT 49.
This is the intent expressed by the Parties in sect.6 of the Agreement.
5)
Defendant 2) cannot be heard with the defence that under Y. law the
contract between the guarantor (Defendant 2) and his principal
(Defendant I) must be in writing.
6)
a)
5)
Defendant 2) cannot be heard with the defence that under Y. law the
contract between the guarantor (Defendant 2) and his principal
(Defendant I) must be in writing.
6)
a)
However, the Parties obviously did not understand this literally when
they concluded the Agreement falsa demonstratio non nocet. The
purpose of a bank guarantee cannot be to grant to the creditor a
position stronger than the one he would have if the debtor had duly
performed the contract.
-
VII.
Costs
1)
As the Claimant has paid the entire advance on costs, it has a claim
against both Defendants jointly to be reimbursed 50% of the advance
on costs.
The Defendants have to reimburse
Claimant
3)
VI.
US$ 700.000,-
US$350.000,-
The same deliberations apply to the normal legal costs incurred by the
Parties. Therefore, each Party has to bear its own costs, the costs of its
lawyers and the costs of the witnesses named by it and heard by the
Arbitral Tribunal. For the witnesses named by both Parties, the costs
fall on the Party who presented the respective witness at the hearing.
However, the Parties obviously did not understand this literally when
they concluded the Agreement falsa demonstratio non nocet. The
purpose of a bank guarantee cannot be to grant to the creditor a
position stronger than the one he would have if the debtor had duly
performed the contract.
-
VII.
Costs
1)
As the Claimant has paid the entire advance on costs, it has a claim
against both Defendants jointly to be reimbursed 50% of the advance
on costs.
The Defendants have to reimburse
Claimant
3)
VI.
US$ 700.000,-
US$350.000,-
The same deliberations apply to the normal legal costs incurred by the
Parties. Therefore, each Party has to bear its own costs, the costs of its
lawyers and the costs of the witnesses named by it and heard by the
Arbitral Tribunal. For the witnesses named by both Parties, the costs
fall on the Party who presented the respective witness at the hearing.
VIII.
US$46.099.140,36 plus
5% interest on US$ 8.908.190,- from ......,
5% interest on US$ 13.362.285,- from ......,
5% interest on US$ 23.828.665,36 from ......;
2)
3)
11.
The costs of Arbitration are US$ 700.000,of which Claimant bears 50% = US$350.000,and the Defendants 1) and 2) 50% = US$350.000,-.
111.
IV.
Each Party shall bear its own costs, the costs of its lawyers and of the
witnesses it has presented.
VIII.
US$46.099.140,36 plus
5% interest on US$ 8.908.190,- from ......,
5% interest on US$ 13.362.285,- from ......,
5% interest on US$ 23.828.665,36 from ......;
2)
3)
11.
The costs of Arbitration are US$ 700.000,of which Claimant bears 50% = US$350.000,and the Defendants 1) and 2) 50% = US$350.000,-.
111.
IV.
Each Party shall bear its own costs, the costs of its lawyers and of the
witnesses it has presented.
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l'ensemble de ces prestations devant permettre a A de produire et commercialiser dans de brefs delais des couleurs indCltbiles compktitives et, en
particulier, aptes a concurrencer celles de B.
Alors mCme que les connaissances que le Defendeur s'Ctait ainsi
engage a transmettre a la Demanderesse ne faisaient encore l'objet, lors de la
signature du contrat, ni d'une documentation ni de droits de propriCtC
industrielle, en particulier de brevets, elles n'en constituaient pas moins un
know-how ou savoir-faire transmissible. On peut en effet definir le knowhow, a la suite de J.M. Mousseron (Aspects juridiques du know-how, Cahier
de droit de l'entreprise 1972, p. 6) de "connaissance technique transmissible
mais non immediatement accessible au public et non brevetee"; ou avec Engel
(Contrats de droit suisse, Beme 1992, p. 721) de "savoir technique,
commercial ou Cconomique, d'application pratique et de valeur patrimoniale,
dont le titulaire a la maitrise et le profit"; ou encore, avec Frangois
Dessemontet (Le savoir-faire industriel, thitse Lausanne 1974, p. 7)
d'"ensemb1e des connaissances non brevetees utilisCes dans l'industrie"; ou
enfin, avec Pedrazzini (Le contrat de licence, TDS VII, 1, 3, p. 118) de
"connaissances (techniques mais aussi commerciales ou Cconomiques) qui
n'ont besoin ni d'Ctre protegees par un brevet ni d'Ctre secretes, donc
accessibles en soi aux tiers, mais que ceux-ci perdraient beaucoup de temps et
d'argent ri rechercher et acquerir." Tel Ctait prCcisCment le but poursuivi par A
en s'assurant le concours du Defendeur : Ctre en mesure de produire et
commercialiser rapidement des couleurs compCtitives, domaine dans lequel
elle avait perdu une grande partie de son savoir-faire et du march6 (cf. ch. 1
ci-dessus).
En conclusion, contrairement a ce que paraissent avoir envisagC les
parties tant dans leurs Ccritures que dans leurs plaidoiries, la presence ou non
d'une documentation et, moins encore, de droits de propriCtC industrielle n'est
pas decisive pour admettre l'existence d'un know-how contractuel et pour
qualifier le contrat tendant au transfert de ce know-how.
c.
La qualification du contrat
l'ensemble de ces prestations devant permettre a A de produire et commercialiser dans de brefs delais des couleurs indCltbiles compktitives et, en
particulier, aptes a concurrencer celles de B.
Alors mCme que les connaissances que le Defendeur s'Ctait ainsi
engage a transmettre a la Demanderesse ne faisaient encore l'objet, lors de la
signature du contrat, ni d'une documentation ni de droits de propriCtC
industrielle, en particulier de brevets, elles n'en constituaient pas moins un
know-how ou savoir-faire transmissible. On peut en effet definir le knowhow, a la suite de J.M. Mousseron (Aspects juridiques du know-how, Cahier
de droit de l'entreprise 1972, p. 6) de "connaissance technique transmissible
mais non immediatement accessible au public et non brevetee"; ou avec Engel
(Contrats de droit suisse, Beme 1992, p. 721) de "savoir technique,
commercial ou Cconomique, d'application pratique et de valeur patrimoniale,
dont le titulaire a la maitrise et le profit"; ou encore, avec Frangois
Dessemontet (Le savoir-faire industriel, thitse Lausanne 1974, p. 7)
d'"ensemb1e des connaissances non brevetees utilisCes dans l'industrie"; ou
enfin, avec Pedrazzini (Le contrat de licence, TDS VII, 1, 3, p. 118) de
"connaissances (techniques mais aussi commerciales ou Cconomiques) qui
n'ont besoin ni d'Ctre protegees par un brevet ni d'Ctre secretes, donc
accessibles en soi aux tiers, mais que ceux-ci perdraient beaucoup de temps et
d'argent ri rechercher et acquerir." Tel Ctait prCcisCment le but poursuivi par A
en s'assurant le concours du Defendeur : Ctre en mesure de produire et
commercialiser rapidement des couleurs compCtitives, domaine dans lequel
elle avait perdu une grande partie de son savoir-faire et du march6 (cf. ch. 1
ci-dessus).
En conclusion, contrairement a ce que paraissent avoir envisagC les
parties tant dans leurs Ccritures que dans leurs plaidoiries, la presence ou non
d'une documentation et, moins encore, de droits de propriCtC industrielle n'est
pas decisive pour admettre l'existence d'un know-how contractuel et pour
qualifier le contrat tendant au transfert de ce know-how.
c.
La qualification du contrat
personnel (art. 2.2), d'assurer les rapports avec les fournisseurs (art. 2.3) et
avec les clients, en particulier pour mettre au point les applications techniques
(art. 2.4). I1 etait dbs lors de l'essence mCme de ce contrat que celui-ci
s'etende sur une certaine dude, fixee en l'espbce a trois ans. Pour se
convaincre qu'une facult6 de revocation ou de rkpudiation immediate serait
manifestement contraire au contrat et
la volonte des parties, il suffit
d'imaginer I'hypothbse inverse, soit celle ou, sit6t aprbs avoir acquis les
elements de base necessaires pour demarrer avec la production des couleurs
indelebiles, la Demanderesse aurait prCmaturCment rompu le contrat, privant
ainsi le DCfendeur de la rCmunCration contractuelle jusqu'a 1'Ccheant ! I1 ne
fait pas de doute que C aurait protest6 contre une telle revocation et reclam6
son dQjusqu'a 1'CchCance du contrat.
Une telle atteinte la volonte des parties ne pourrait se justifier que si
le droit de revoquer ou repudier en tout temps Ctait dictC ici par des
considerations d'ordre public l'emportant nettement sur le principe pacta sunt
servanda. Selon la jurisprudence, la ratio leais de l'art. 404 CO est que le
mandat implique g6nCralement une relation de confiance caractkriske au point
que, si cette confiance disparait, le maintien du contrat n'a plus aucun sens
(cf. en dernier lieu ATF 115 I1 464 = JdT 1990 I 3 12 c. 2a). Or, on ne saurait
considerer que le contrat de know-how implique une telle relation de
confiance caracterisee et reciproque. Elle n'est en tout cas pas plus forte que
dans le contrat d'entreprise. Si le cessionnaire compte certes sur les
connaissances et llexpCrience professionnelles du cedant, comme le maitre de
l'ouvrage sur celles de I'entrepreneur, on ne saurait en particulier considerer
que le lien n o d par le cCdant, comme par l'entrepreneur, postule qu'il puisse
s'en liberer en tout temps. Or, si l'art. 377 CO autorise le maitre se departir
du contrat en payant le travail dej& fait et en indemnisant complbtement
I'entrepreneur, celui-ci ne peut en revanche se soustraire a ses obligations
contractuelles.
En conclusion, le Tribunal arbitral estime que le contrat de know-how
conclu entre les parties ne saurait Ctre qualifiC de mandat et que l'art. 404 CO
est inapplicable en I'espece. Cette disposition serait inconciliable avec la
volontk des parties, sans Ctre pour autant justifiee par une consideration
d'ordre public. I1 serait paradoxal, et mCme inadmissible, que la soumission
de ce contrat international au droit suisse ait pour consCquence de l'emporter
sur le principe pacta sunt servanda qui est lui considirk comme relevant de
l'ordre public au sens de l'art. 190 al. 2 lit. e LDIP (cf. notamment TF, Bul.
ASA 1992, p. 365 c. 2a et 381c. 6a).
d.
personnel (art. 2.2), d'assurer les rapports avec les fournisseurs (art. 2.3) et
avec les clients, en particulier pour mettre au point les applications techniques
(art. 2.4). I1 etait dbs lors de l'essence mCme de ce contrat que celui-ci
s'etende sur une certaine dude, fixee en l'espbce a trois ans. Pour se
convaincre qu'une facult6 de revocation ou de rkpudiation immediate serait
manifestement contraire au contrat et
la volonte des parties, il suffit
d'imaginer I'hypothbse inverse, soit celle ou, sit6t aprbs avoir acquis les
elements de base necessaires pour demarrer avec la production des couleurs
indelebiles, la Demanderesse aurait prCmaturCment rompu le contrat, privant
ainsi le DCfendeur de la rCmunCration contractuelle jusqu'a 1'Ccheant ! I1 ne
fait pas de doute que C aurait protest6 contre une telle revocation et reclam6
son dQjusqu'a 1'CchCance du contrat.
Une telle atteinte la volonte des parties ne pourrait se justifier que si
le droit de revoquer ou repudier en tout temps Ctait dictC ici par des
considerations d'ordre public l'emportant nettement sur le principe pacta sunt
servanda. Selon la jurisprudence, la ratio leais de l'art. 404 CO est que le
mandat implique g6nCralement une relation de confiance caractkriske au point
que, si cette confiance disparait, le maintien du contrat n'a plus aucun sens
(cf. en dernier lieu ATF 115 I1 464 = JdT 1990 I 3 12 c. 2a). Or, on ne saurait
considerer que le contrat de know-how implique une telle relation de
confiance caracterisee et reciproque. Elle n'est en tout cas pas plus forte que
dans le contrat d'entreprise. Si le cessionnaire compte certes sur les
connaissances et llexpCrience professionnelles du cedant, comme le maitre de
l'ouvrage sur celles de I'entrepreneur, on ne saurait en particulier considerer
que le lien n o d par le cCdant, comme par l'entrepreneur, postule qu'il puisse
s'en liberer en tout temps. Or, si l'art. 377 CO autorise le maitre se departir
du contrat en payant le travail dej& fait et en indemnisant complbtement
I'entrepreneur, celui-ci ne peut en revanche se soustraire a ses obligations
contractuelles.
En conclusion, le Tribunal arbitral estime que le contrat de know-how
conclu entre les parties ne saurait Ctre qualifiC de mandat et que l'art. 404 CO
est inapplicable en I'espece. Cette disposition serait inconciliable avec la
volontk des parties, sans Ctre pour autant justifiee par une consideration
d'ordre public. I1 serait paradoxal, et mCme inadmissible, que la soumission
de ce contrat international au droit suisse ait pour consCquence de l'emporter
sur le principe pacta sunt servanda qui est lui considirk comme relevant de
l'ordre public au sens de l'art. 190 al. 2 lit. e LDIP (cf. notamment TF, Bul.
ASA 1992, p. 365 c. 2a et 381c. 6a).
d.