1973 CONTRACT WAS VOID IN SO FAR AS IT ARRANGED FOR AID FROM THE FUND TO GO TO THE BUILDING OF SHIPS IN RESPECT OF WHICH THE COMMISSION HAD NOT GRANTED SUCH AID . THEY TOOK THE VIEW THAT AID FROM THE FUND WAS LINKED TO COMPLETION OF A SPECIFIC PROJECT AND COULD NOT THEREFORE VALIDLY BE TRANSFERRED BY THE RECIPIENT TO A DIFFERENT PROJECT .
6 THE ARBITRATOR WAS OF THE OPINION THAT UNDER GERMAN LAW THE VALIDITY OF A CONTRACT TO SHARE AID FROM THE FUND DEPENDED ON WHETHER SUCH SHARING AMOUNTED TO AN IRREGULARITY UNDER THE RELEVANT COMMUNITY REGULATIONS . CONSIDERING THAT A DECISION ON THE POINT WAS NECESSARY IN ORDER TO ALLOW HIM TO MAKE HIS AWARD HE REFERRED THE MATTER TO THE COURT FOR A PRELIMINARY RULING .
APPLICABILITY OF ARTICLE 177
7 SINCE THE ARBITRATION TRIBUNAL WHICH REFERRED THE MATTER TO THE COURT FOR A PRELIMINARY RULING WAS ESTABLISHED PURSUANT TO A CONTRACT BETWEEN PRIVATE INDIVIDUALS THE QUESTION ARISES WHETHER IT MAY BE CONSIDERED AS A COURT OR TRIBUNAL OF ONE OF THE MEMBER STATES WITHIN THE MEANING OF ARTICLE 177 OF THE TREATY .
8 THE FIRST QUESTION PUT BY THE ARBITRATOR CONCERNS THAT PROBLEM . IT IS WORDED AS FOLLOWS :
' ' IS A GERMAN ARBITRATION COURT , WHICH MUST DECIDE NOT ACCORDING TO EQUITY BUT ACCORDING TO LAW , AND WHOSE DECISION HAS THE SAME EFFECTS AS REGARDS THE PARTIES AS A DEFINITIVE JUDGMENT OF A COURT OF LAW ( ARTICLE 1040 OF THE ZIVILPROZESSORDNUNG ( RULES OF CIVIL PROCEDURE )) AUTHORIZED TO MAKE A REFERENCE TO THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES FOR A PRELIMINARY RULING PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 177 OF THE EEC TREATY?
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9 IT MUST BE NOTED THAT , AS THE QUESTION INDICATES , THE JURISDICTION OF THE COURT TO RULE ON QUESTIONS REFERRED TO IT DEPENDS ON THE NATURE OF THE ARBITRATION IN QUESTION .
10 IT IS TRUE , AS THE ARBITRATOR NOTED IN HIS QUESTION , THAT THERE ARE CERTAIN SIMILARITIES BETWEEN THE ACTIVITIES OF THE ARBITRATION TRIBUNAL IN QUESTION AND THOSE OF AN ORDINARY COURT OR TRIBUNAL INASMUCH AS THE ARBITRATION IS PROVIDED FOR WITHIN THE FRAMEWORK OF THE LAW , THE ARBITRATOR MUST DECIDE ACCORDING TO LAW AND HIS AWARD HAS , AS BETWEEN THE PARTIES , THE FORCE OF RES JUDICATA , AND MAY BE ENFORCEABLE IF LEAVE TO ISSUE EXECUTION IS OBTAINED . HOWEVER , THOSE CHARACTERISTICS ARE NOT SUFFICIENT TO GIVE THE ARBITRATOR THE STATUS OF A ' ' COURT OR TRIBUNAL OF A MEMBER STATE ' ' WITHIN THE MEANING OF ARTICLE 177 OF THE TREATY .
11 THE FIRST IMPORTANT POINT TO NOTE IS THAT WHEN THE CONTRACT WAS ENTERED INTO IN 1973 THE PARTIES WERE FREE TO LEAVE THEIR DISPUTES TO BE RESOLVED BY THE ORDINARY COURTS OR TO OPT FOR ARBITRATION BY INSERTING A CLAUSE TO THAT EFFECT IN THE CONTRACT . FROM THE FACTS OF THE