Arbitrability of a dispute concerning the payment of commissions to a commercial agent in the context of armament contracts with Iraq

Facts

Fincantieri-Cantieri Navali Italiani S.p.A. and Oto Melara S.p.A., two Italian companies specializing in the manufacture of military equipment, entrusted M. with the task of acting as an agent for the sale of ships and other military equipment to the Republic of Iraq. After the regular execution of the contracts until 1987, difficulties arose and the Iraqi authorities suspended their payments. M. then brought an arbitration claim before the International Chamber of Commerce Arbitration Court against the two companies to obtain the payment of the commissions to which he claims to be entitled. Relying on the UN Security Council resolutions prohibiting any commercial activity with Iraq, the companies raised the objection of the Arbitral Tribunal's lack of jurisdiction due to the non-arbitrability of the case.

Considerations

The Federal Tribunal dismissed the companies' appeal against the decision of the Arbitral Tribunal accepting its jurisdiction. It considered that the subject matter of the dispute, which concerns the agent's right to the payment of commissions, is of a patrimonial nature within the meaning of Art. 177(1) PILA and can therefore be the subject of an arbitration under Swiss law. The fact that the claims arise from contracts concluded with Iraq and are influenced by rules of public international law does not exclude arbitrability, as long as it does not appear…