- Arbitral Award
- ICC International Court of Arbitration, Brussels 8548
LONG-TERM CONTRACTS - AGENCY CONTRACT - BETWEEN A NORTH AMERICAN AGENT AND A GERMAN-BELGIAN GROUP OF COMPANIES - SILENT AS TO APPLICABLE LAW - PARTIES AGREE ON THE APPLICATION OF DUTCH LAW
GOOD FAITH IN CONTRACT PERFORMANCE - REFERENCE TO UNIDROIT PRINCIPLES TO CONFIRM THE SOLUTION ADOPTED UNDER APPLICABLE DOMESTIC LAW
A North American agent (Claimant) concluded a so-called collaboration contract with a German-Belgian group of companies (Respondents), according to which the first would have to identify on the market potential distributors and purchasers of the Respondents' products on payment of a commission. In turn, Respondents would have to enter into contracts with clients identified by the Claimant. Claimant had developed numerous professional contacts but no contract had been entered into by Respondents with these potential clients. Respondents subsequently decided to create a subsidiary in the Claimant's territory, thus rendering the latter's activity unnecessary. Therefore, the collaboration contract, which was concluded for three years, was terminated by Respondents after two years. Claimant then commenced arbitration proceedings against Respondents, stating that he had never been paid for his work and claiming damages for breach of contract.
As for the law applicable to the merits of the dispute, since the contract was silent on the issue, the parties agreed to apply Dutch law on the proposal of the Arbitrator.
On the merits, the Arbitrator decided to grant the Claimant both the payment of the commission and the compensation for damages. The Arbitrator stated that Dutch law requires that the performance of contractual obligations is based on the principles of good faith and justice. He added that these principles are not only sanctioned in Dutch law but have an international dimension, as confirmed by the UNIDROIT Principles and the lex mercatoria.
In the opinion of the Arbitrator, Respondents would have to pursue in good faith the business opportunities identified by the Claimant and play an active role in the conclusion of the contracts. By avoiding negotiating in good faith contracts with the many clients identified by the Claimant, Respondents had violated their contractual obligations and deprived the Claimant of the commissions he was entitled to expect.
E. Jolivet, La jurisprudence arbitrale de la CCI et la lex mercatoria, in Gazette du Palais, 2001, n.119, pp.36-44}}