Title
ICC Award No. 11440, YCA 2006, at 127 et seq.
Content

Final award in case No. 11440 of 2003.

127

Facts

In 1998, the parties entered into a Master Agreement (MA) by which the respondent sold its business to claimant. For the determination of the final purchase price the MA provided a purchase price adjustment mechanism based on a Consolidated Financial Statement (CFS). Because of discrepancies between the auditors' reports with regard to the CFS, the parties entered into negotiations which resulted in 1999 in a Settlement Agreement (SA).

Notwithstanding the SA, the buyer alleged that the seller had violated representations, warranties and other obligations arising out of the MA and initiated ICC arbitration, claiming compensation from the seller. The seller asserted several counterclaims.

Because the seller argued that most of the claims were covered by the SA, the arbitral tribunal first established its scope, using a systematic approach to determine the intention of the parties. The first paragraph of the SA dealt with the adaptation of the purchase price. The second paragraph dealt with compensation for the negative issues. There was no direct or indirect reference to claims based on the "Representations and Warranties" as stipulated in Sect. 7 of the MA. The arbitral tribunal noted that: "If experienced business people advised by high-profile lawyers conclude a Settlement Agreement that comprises 128 a whole bundle of claims based on Representations and Warranties - the core element of the MA and any such transaction - it is hardly conceivable that this is not reflected in the text of the SA." Hence, the settlement clause of the SA comprised only claims within the framework of the price adjustment procedure and claimant was not precluded from founding its claims or breach of Representations and/or Warranties pursuant to Sects. 7 and 8 of the MA.

The buyer argued that it was entitled to compensation from the seller for the renewal of non-transferable software licences (the Licences). In the view of the buyer, the Licences were assets and should be transferred as part of the business. Moreover, the seller had not included them on the list of Licences specified in the MA. The seller argued that the Licences could not be qualified as assets and that it only was required by the MA to give the buyer "reasonable assistance" regarding the licences. The arbitral tribunal noted that the MA provided that a list should be supplied of licences for intellectual property rights which would not be able to be used by buyer. The seller had not provided such a list and had violated its information duties and thus breached the guarantee. The buyer was to be put in the same position it would have been if it had been supplied with the correct and complete information. The arbitral tribunal rejected the seller's argument that the buyer had not suffered any damage, but did find that the buyer had been negligent as it had been aware that there might be a problem. Therefore, the damage was to be reduced by one third.

The buyer also claimed compensation for expenses incurred as a result of computer problems related to the change from 1999 to 2000 (the Y2K-problem or -phenomenon). The arbitral tribunal held that also this claim did not fall under the SA, but was a claim for a breach of representations and warranties. It examined the buyer's actions from the ex ante point of view of what steps a "carefully acting businessman" should take, rather than using ex post judgment, i.e., with hindsight. The concept applied by the seller for dealing with this matter was in the view of the arbitral tribunal consistent and adequate. After determining which of the buyer's claims had been proven and their value, the arbitral tribunal reduced the total amount by one third because most of the buyer's replacements led to a higher standard of software and the buyer's policy was a broad approach including follow-up problems. Seller sought to reduce the compensation under the concept of "new for old". The arbitral tribunal found that the damages could be mitigated if the reduction did not constitute an unbearable burden for the buyer and that this determination should be made using judicial discretion. The buyer had been under a duty to inform the seller of facts which could be the basis for claims, but had not done so, although this did not appear to be intentional. However, the seller was aware of the problems 129 and the failure to notify was without financial consequences. Any added value had, however, been taken into account by the deduction of one third.

A number of other smaller claims decided by the arbitral tribunal are not included in this excerpt.

Excerpt

I. JURISDICTION AND APPLICABLE PROCEDURAL RULES

[...]

130

II. APPLICABLE LAW

[5] "Regarding the applicable substantive law the Master Agreement contains the following clause:

'This Agreement shall be governed by German substantive law without reference to other laws. The application of the United Nations Convention on Contracts for the International Sales of Good of 11 April 1980 shall be excluded.'

The Arbitral Tribunal has to apply the German Civil Code without the changes that have been made by the recent major revision.”2

III. SCOPE OF SETTLEMENT AGREEMENT

[...]

1. Real Intentions of the Parties

[8] "Based on these rules [ Sects. 133, 157 German Civil Code, added by the TransLex-Team ], as a first step and the predominant aim of any interpretation, the Arbitral Tribunal must try to find out what the common 'real intentions' of the parties were when they concluded the contract. There is no room or need for any further interpretation if those intentions are established. They are of factual nature and, therefore, must be alleged and in the case of dispute proved by the party who wishes to rely on it.

[9] "Though in the case at hand the scope of application of the SA was in dispute from the very first exchange of Briefs, no evidence was offered with respect to the parties' intentions. This is rightly stated by respondent regarding Claimant's Briefs but it is in the same way true for respondent's own submissions. The reason for that seems to be that claimant and respondent have the view that there is no need for any proof since the wording of the contract was clear and would correctly reflect the parties' intentions. Both parties' arguments illustrate, however, that they substantially disagree on the meaning of the text. Therefore either of the parties should have proved its thesis of the real intentions. Since such proof has not been furnished it is for the Arbitral Tribunal to assess by the above mentioned means and rules the will the parties presumably5 had and based thereupon to determine the content of the SA."

132

2. Tribunal's Interpretation of the SA

[10] "It is the wording of the contract any interpretation has to start with, followed by a systematic approach, i.e. putting the single word in the context of the phrase and the single provision into the framework of the contract as a unit. In addition, the history of the contract, the parties' interest and their behaviour after the conclusion are generally accepted means for the assessment of the meaning of the contract.

[11] "The paramount elements of the text of the SA are the 'purchase price adjustment and the numerous references to the MA.

[12] "(1) In the ingress of the SA the parties, after referring to Sects. 4/5 of the MA and the therein provided purchase price adjustment mechanism and the reports delivered by Consulting Society 1 and Consulting Society 2, 'in connection with this adjustment procedure' state that - claimant has raised claims based on the Consulting Society 2 Report in connection with the price adjustment procedure', and that - the parties have come to an agreement regarding their differences in the determination of the amounts payable under the purchase price adjustment and the claims raised by the claimant, referring to the before quoted claims also related to the price adjustment procedure.

[13] "(2) Consequently, the SA in its para. 1 deals with the adaptation of the purchase price.

[14] "(3) Para. 2 of the SA concerns 'compensation for negative issues affecting 1999 as ascertained in the Consulting Society 2 Report'. Although the negative issues are not specified, the reference to the Consulting Society 2 Report in light of the above quoted sequence of the ingress,6 indicates that the compensation is understood as part of the price adjustment mechanism. Furthermore, there is no direct or indirect reference to claims based on the Representations and Warranties as stipulated in Sect. 7 of the MA. Taking in consideration the permanent references made to the MA in the other parts of the SA one would expect that a respective reference had been made to Sect. 7 of the MA if the compensation was a payment based on that provision.

[15] "(4) At a first glance an indirect relation to Representations and Warranties might be seen in the second sentence of para. 2 of the SA that reads:133

'The amount as per Sect. 8.2 last sentence of the Master Agreement7 (total amount of claims that can be made under the representations and warranties) shall be limited to... '.

Having a closer look at the function of Sect. 8.2 MA it turns out that the provision contains nothing else than a formula for the calculation of the 'total amount of claims that can be made' under that title (so called 'cap'). Thus, the second sentence of para. 2 of the SA only states the cap calculated on the basis of the new price pursuant paras. 1 and 2 of the SA. Therefore, from the sentence itself no conclusions can be drawn with respect to the question whether claims for Representations and Warranties are comprised. It is different from a systematic view: If the payments taken into account for the calculation of the cap had been those for breach of Representations and Warranties one could certainly expect that this was mentioned exactly at this point of the contract. Again, the missing reference to Sect. 7 of the MA indicates that there was no link.

[16] "(5) With regard to said second sentence of para. 2 both parties use the tool of systematic interpretation: Whereas claimant holds the view that 'the calculation of the cap itself establishes that no claims for Representations and Warranties were covered by the Settlement Agreement', respondent argues that if those claims were covered the calculation of the cap makes sense for claims arising in the future under the Representations and Warranties stipulated in para. 7 MA. It is true that claims under that title may arise after the SA had been concluded. On the other hand it is rather strange, that - in respondent's hypothesis - a whole bundle of claims for Representations and Warranties was covered and the cap was not reduced but fixed at a higher amount. Be that as it may, decisive for the Arbitral Tribunal is - as already mentioned - that no reference to the claims under Sect. 7 of the MA was made. If experienced business people advised by high-profile lawyers conclude a Settlement Agreement that comprises a whole bundle of claims based on Representations and Warranties - the core element of the MA and any such transaction - it is hardly conceivable that this is not reflected in the text of the SA.

[17] "(6) Para. 3 of the SA, in respondent's view, clearly indicates that the parties wanted to settle 'all mutual claims'. In support for this interpretation reference is made to a decision of the Appellate Court of Cologne.8 The Court 134 held that the clause 'all mutual claims between the parties are settled'9 covers claims not known to the parties at that time without additional clarification in that respect. First of all, any interpretation of a contract clause is individual and not transferable to another contract, in particular not to a very specific contract as the SA. Secondly, the published excerpt contains only the quoted phrase and, thus, leaves the context open which is of eminent impact for any interpretation. But even assuming that the Court wanted to state that its interpretation reflects a common understanding of such clause and that such common accepted language has to be taken in consideration in the normative interpretation the Arbitral Tribunal has to apply,10 the statement of the Court is not relevant for the case at hand.

[18] "The reason for that is twofold: The issue here is not whether the parties wanted unknown claims to be comprised, but to find out what kind or sort of claims they intended to settle. Because of that aim of interpretation it is necessary to read the first sentence as a whole, in its context and as part of a unit. Again, the clause is conceived with reference to the 'purchase price adjustment procedure' which is the dominating element of the SA. There is no indication that all possible claims for Representations and Warranty should be settled effecting claimant's renouncement of possible claims in a volume of ... million DM. Neither the language nor the structure of the SA give reason for the conclusion that this was implicitly done. In fact, it is not very plausible that parties of the standing of the claimant and respondent would make such renouncement without having it included in the wording of the contract. This view is supported by the reference that is made twice (para. 3 first and second sentences) to the Consulting Society 2 Report on which claimant's claims were - as expressly stated in the ingress - based 'in connection with the price adjustment procedure '.11

[19] "(7) For all these reasons the Arbitral Tribunal is of the opinion that the settlement clause in para. 3 of the SA comprises only claims within the framework of the price adjustment procedure. [There] is therefore no need to discuss the meaning of the disputed formula 'a party ... could have raised' insofar as Representation and Warranties claims are concerned. If some of the facts claimant relies on now for its claims could have been taken into account in the price adjustment procedure claimant is not precluded by the SA from founding 135 its claims on breach of Representations and/or Warranties pursuant Sects. 7/8 MA."

3. The Arbitral Tribunal's Conclusion

[20] "Regarding the disputed scope of SA the Arbitral Tribunal comes to the conclusion that the claims for representations and warranties as raised by claimants are not covered by the SA. The SA rather comprises all claims in connection with the price adjustment procedure."

[...]

2"The German Civil Code (BGB) will be applied in it's version before 1 January 2002; cf. Art. 229(5)."
5"For this so called normative interpretation cf. Palandt/Heinrichs, Sect. 133 margin nos. 9, 12."
6"The claimant has raised claims based on the Consulting Society 2 Report in connection with the price adjustment procedure.'"
7"Sect. 8 of the MA deals with 'Remedies for Representations and Warranties'."
8"Decision of 25 August 1999, partly published in MDR (Monatsschrift für Deutsches Recht)) 2000, 140."
9"Sämtliche wechselseitigen Ansprüche zwischen den Parteien erledigt sind."
10"See above [9]...."
11"Cf. [11]."

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