General Dynamics United Kingdom Limited (United Kingdom) v. The State of Libya

Abstract

Procedure — Evidence — Document production — Whether negative inferences must be drawn from a party’s failure to produce documents as ordered by the tribunal

Applicable law — Contract — Whether remedies in case of default stipulated in a contract precluded the application of other remedies under the applicable law — Whether obligations under the contract were reciprocal

Contract — Breach of contract — Whether Article 107 of the Swiss Code of Obligations was applicable — Whether the claimant’s notice of default was valid — Whether the State validly exercised a drawdown against the advance payment guarantee — Whether the claimant was required to grant an extension of the advance payment guarantee

Defence — Contract — Non-performance — Whether the claimant’s delay entitled the State to withhold payment

Defence — Force majeure — Armed conflict — Whether one party’s force majeure notice relieved the other party of its contractual obligations — Whether civil war or foreign military intervention in the host State amounted to a force majeure event — Whether the defence was precluded by prior default — Whether the failure to give notice of a force majeure impediment precluded the State from relying upon force majeure events to excuse its non-performance — Whether non-compliance with the obligation to consult on the continuation of the contract after six months of force majeure impediments was of any legal consequence

Counterclaim — Contract — Abuse of rights — Bad faith — Whether the claimant acted in bad faith or abused its rights during its contractual relationship with the State — Whether the State may recover for alleged waste of time, labour and resources

Remedies — Damages — Whether the claimant would have retained the drawn amount but for the State’s breach of contract

Costs — ICC Rules, Article 37 — Whether costs should reflect the relative success and failure in the arbitration