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Date: 06.04.1995
Country: France
Number:
Court: Cour d'Appel de Paris, 1ére chambre, section C
Parties: Thyssen Stahlunion GmbH v. Maaden General Foreign Trade Organisation Bulding Materials
Citation: http://www.unilex.info/case.cfm?id=200
This case involves an appeal against the award of an Arbitral Tribunal of the ICC International Court of Arbitration (ICC Court of Arbitration, Arbitral Award 1993, n. 6653/1993. See Abstract and Full Text in UNILEX).

The Arbitral Tribunal had entitled the buyer to partial avoidance of the contract and had required the seller to refund part of the price with interest at the LIBOR rate accruing from the date of payment of the non-conforming goods. In this respect, the Arbitral Tribunal had found that: (a) Art. 84 CISG does not require a formal request for payment of interest, and (b) as CISG does not determine the rate of interest (Art. 78 CISG), the applicable rate was to be the one currently used in international trade with respect to the currency in which payment had to be made, this being the 'most logical solution from an economic point of view'.

The seller appealed on the grounds that, under the terms of the arbitration clause and the 'acte de mission' submitted by the parties, the Arbitral Tribunal had no competence to make statements on the applicable rate of interest, and that as the Arbitral Tribunal had not given the parties the chance to reply on that point, had violated the principle of due process.

The appellate Court held that the Arbitral Tribunal's decision to require the seller to pay interest on the refunded price even in the absence of a formal request by the buyer was supported by Art. 84 CISG, which states that if the seller is bound to refund the price, it 'must' (and not 'may') also pay interest on it from the date on which the price was paid.

However, the appellate Court reversed that part of the arbitral award requiring the seller to pay interest at the LIBOR rate, on the grounds that the Convention is silent on the way in which the rate of interest is be determined, and that the decision to apply the LIBOR rate had been taken by the arbitrators without the parties being given the possibility to make their defense on that point, whereas the international trade usage invoked by the buyer does not provide rules to determine the applicable rate.