In the framework of their contractual relationship, the Claimant (a Moroccan broker) agreed to provide certain services to the Respondent (a French builder). The Respondent paid part of the commissions into a Swiss bank account, but afterwards refused to pay the balance, arguing that it had become part of an American group under a policy which prohibited it from paying in a country other than that where the agent was located or the services rendered. In order to further justify its refusal to pay the remaining commissions, the Respondent alleged that the reason why the Claimant demanded payment be made in Switzerland was due to bribery, which in its view was an illicit purpose under the Swiss Code of Obligations. The Claimant filed an arbitration suit to recover the commissions plus damages and interest. The contract contained a choice of law clause in favor of a particular domestic law (Swiss law).
The Arbitral Tribunal rejected the allegations of corruption and ordered the Respondent to pay the commissions plus interest. In particular, in order to confirm that the claim for interest was part of the general claim for damages, the Arbitral Tribunal quoted an author according to whom [f]rom a functional perspective, the interest claim in Art. 78 CISG, just as the one in 7.4.9 of the UNIDROIT Principles, and any statutory interest claim constitutes the minimum lump sum compensation for damages in areas where the creditor need not prove the actual damages incurred. It is a long-standing practice of international arbitrators, as well as of the Iran-U.S. Claims Tribunal, to consider the interest claim as part of the general claim for damages.
In awarding the Claimant the rate of interest provided for in Art. 104 of the Swiss Code of Obligations (5%), the Arbitral Tribunal held that nothing in the contract suggested that the parties intended to exclude the right to interest for delayed payment. In reaching this conclusion, it pointed out that such an exclusion would have been difficult to reconcile with [t]he usages of international trade which are echoed by, among others, the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) or again the UNIDROIT Principles of International Commercial Contracts […] (translation from French original). |