Data

Date:
00-00-2002
Country:
Arbitral Award
Number:
11638
Court:
ICC International Court of Arbitration
Parties:
--

Keywords

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“FOR THOSE MATTERS NOT GOVERNED BY THE CISG, THE LAW APPLICABLE SHOULD BE DETERMINED IN CONFORMITY WITH THE LAW APPLICABLE BY VIRTUE OF THE RULES OF PRIVATE INTERNATIONAL LAW. THE ARBITRATOR CONSIDERS THAT THE APPLICATION OF THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS SHOULD, ACCORDING TO ARTICLE 17(1) OF THE ICC RULES AND ARBITRATION, BE PREFERRED TO ANY DOMESTIC LAW WHICH HAS NOT BEEN DESIGNATED BY THE PARTIES, THE CONTENT OF WHICH HAS NOT BEEN ESTABLISHED AND WHICH THEREFORE DOES NOT SEEM APPROPRIATE TO SOLVE THE DISPUTE.
SUCH UNIDROIT PRINCIPLES ALSO APPEAR APPLICABLE TO THOSE MATTERS WHICH ARE GOVERNED BY THE CISG BUT NOT EXPRESSLY SETTLED BY IT SINCE ARTICLE 7(2) OF THE CISG PROVIDES THAT THEY SHOULD BE SETTLED IN CONFORMITY WITH THE GENERAL PRINCIPLES ON WHICH THE CISG IS BASED. AMONG THESE PRINCIPLES, IS THE NEED TO PROMOTE UNIFORMITY IN THE APPLICATION OF THE CONVENTION (ARTICLE 7(1)), WHICH IS MORE LIKELY TO BE FULFILLED BY APPLICATION OF THE UNIDROIT PRINCIPLES THAN OF ANY DOMESTIC LAW.
THEREFORE, THE ARBITRATOR SHALL APPLY THE CISG AND ALTERNATIVELY, FOR THOSE MATTERS NOT GOVERNED OR SETTLED BY IT THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS.”

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Abstract

In a dispute relating to an international sales contract governed by the CISG, the Sole Arbitrator decided to apply the UNIDROIT Principles not only to the matters governed by the Convention but not expressly settled by it, but also to the matters outside the scope of the Convention. With respect to matters governed by the CISG but not expressly settled by it the application of the UNIDROIT Principles was justified because Article 7(2) of the CISG provides that they should be settled in conformity with the general principles on which the CISG is based, and since one of these principles is the need to promote uniformity in the application of the Convention (Art. 7(1) CISG) it is more likely to be fulfilled by applying the UNIDROIT Principles than any domestic law. With respect to the matters outside the scope of the Convention, it is true that the law applicable should be determined in conformity with the law applicable by virtue of the rules of private international law. However, according to the Sole Arbitrator, under Art. 17(1) of the ICC Rules and Arbitration in the case at hand the application of the UNIDROIT Principles should be preferred to any domestic law which has not been designated by the parties, the content of which has not been established and which therefore does not seem appropriate to solve the dispute at hand.

Fulltext

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Source

Published in excerpt:

E. Jolivet, L'harmonisation du droit OHADA des contrats: l'influence des Principes d'UNIDROIT en matière de pratique contractuelle et d'arbitrage, in Unifrom Law Review, p. 127 et seq. (p.136, fn 27)}}