X. AG and Y. SA v. A. [The Valuation of the Nigerian and Malaysian Commissions] No. 4A_438/2008 - Swiss International Arbitration Law Reports (SIALR) - 2008 Volume 2 No. 2

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December, 2007

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Headnote

The distinction between arbitration and contractual expert

determination or valuation is based on several criteria including (i)

the terms used by the parties in their agreement to describe the task

of the arbitrator, expert or valuer; (ii) the scope of the task with

which the third party is entrusted; and (iii) the effects of the decision

to be made by the third party, in particular, whether such a decision

is capable of enforcement in debt collection proceedings.

Summary of the Decision

A. and X. AG concluded a Commission Agreement pursuant to which

A. authorised Y. SA (owned by X. AG) to use its name and agreed not to

compete with Y. SA, in consideration of the payment by X. AG to A. of

commissions on the sales of machines and accessories to A.’s customers.

The Commission Agreement provided that the parties were to agree on

an auditor, who was to verify and certify X.’s yearly statement of

commissions. In case of discrepancies between the calculations

contained in X.’s statement of commissions and the auditor’s

certification, the latter was to prevail. The agreement further provided

that “the Auditor’s decision shall be final and both parties waive all

challenge of this decision” and that any disputes “arising out of or in

connection with” the agreement were to be settled by arbitration.

A dispute arose between the parties concerning the statement of

commissions for 2005. The auditor informed the parties that they should

submit the dispute to arbitration in the event that they could not resolve

the matter themselves. A. then filed a request for arbitration with the

ICC seeking (i) a declaration that the disputed orders be included in the

statements of commissions and (ii) an order directing X. AG and Y. SA to

pay various sums in commissions, processing fees and interest. X. AG

and Y. SA objected to the jurisdiction of the arbitral tribunal.

In a preliminary award, the arbitral tribunal inter alia declared that it

had jurisdiction and that the disputed orders were to be included in the

statements of commissions. On the merits, the arbitral tribunal

interpreted the agreement as entitling A. to commissions on all orders

placed during a fixed period, even if the commission became payable