International Court of Arbitration Cour internationale d'arbitrage ...

36Amsterdam, The Netherlands and New York, USA.banks are open at all in New York on Saturdays.It is not disputed that no4. The purpose of the clause67. The General Agreement contains several references to the concept ofBusiness Days.For example, on page 12, §3 of the General Agreement, it is provided that thesale resulting from the exercise of the pre-emption right and the payment of theprice shall take place within 10 Business Days following the exercise of thatright.On page 16, point 4.4.3., the General Agreement provides that the transfer of allthe shares in case of a Put Option shall take place no later than 30 BusinessDays following the end of the month during which the pre-emption is exercisable.In addition, on page 17, §1, the General Agreement provides that on the date oftransfer of the shares, KPN shall pay to the Minority Shareholders the purchaseprice in cash upon delivery of the share transfer form.The provisions reviewed above refer to payments that had to occur during aBusiness Day; it is therefore contractually required in order for the GeneralAgreement to be effective that the definition given to the term "Business Day"allows international banking payments to take place.It is not contested by the parties that international clearing cannot take place ona Saturday in Paris.Saturdays therefore appear to have been excluded from the contractual definitionof Business Days in the General Agreement.5. The interpretation of the clause by the parties68. The attitude of the parties after the signature of the contract and up untilthe time when the dispute arose could also be taken into account, as that attitudeindicates how the parties themselves actually perceive the agreement indispute.This rule is sometimes referred to as "practical and quasi authentic interpretation"or "contemporary practical interpretation " and is commonly applied in arbitralcase law (Fouchard, Gaillard, Goldman, On international commercial arbitration,1999, page 258).This evidential means is also enshrined in Dutch law, as theterpretation is that one has to seek what, in the given circumA02338488/0.31/16 Oct 2002r°;,A MERCE ITEq,,Wral rule of in-C rpJ (Tj",PARBITRAGEINTERNAT;GN;+L CCLIRI OF ARBITRATIONy O/L CHaMeE ° cod