- Arbitral Award
- ICC International Court of Arbitration 17146
INTERNATIONAL CONTRACT - REFERENCE TO UNIDROIT PRINCIPLES TO INTERPRET AND SUPPLEMENT APPLICABLE INTERNATIONAL LAW (TRANSNATIONAL RULES AND TRADE USAGES)
ARBITRATION CLAUSE - INTERPRETATION - ACCORDING TO PRINCIPLE OF GOOD FAITH, OF EFFECTIVE INTERPRETATION AND OF CONTRA PROFERENTEM RULE - REFERENCE TO ART. 4.5 UNIDROIT PRINCIPLES
"The contract between the parties contained an arbitration clause. According to this clause the arbitration institution should be designated in a separate contractual document, which, however, did not contain such designation. Due to lack of reference to an arbitration institution, the respondent contested the validity of the arbitration clause, which led the arbitral tribunal to resolve the question of its interpretation.
The contractual documents did not stipulate the applicable law. As the parties refrained from taking specific positions on the applicable law, the arbitral tribunal found that the existence, validity and scope of an arbitration agreement has to be examined by reference to transnational rules and trade usages. The arbitral tribunal further noted that these rules are the same as those commonly adopted for the interpretation of contracts in national laws. The arbitral tribunal identified that these rules encompass the principle of good faith, the principle of effective interpretation and the principle of interpretation contra proferentem stating that it would interpret the arbitration clause pursuant to these generally accepted principles. With regard to the principle of effective interpretation, the arbitral tribunal also referred to Article 4.5 of the UNIDROIT Principles.
The arbitral tribunal analysed the contractual documents finding that the parties’ intention was to resolve possible differences or disputes between them through administered arbitration. In addition to examination of the contractual material and other circumstances as a whole in order to establish the parties’ intent, the arbitral tribunal also resorted to the principle of effective interpretation. As a part of its analysis the arbitral tribunal noted that neither of the parties had argued that their intention would have been to have an ad hoc arbitration, which was in line with the arbitration clause, as otherwise it would have deprived a part of the arbitration clause, according to which the seat of arbitration is determined by location of headquarters of selected arbitration institution, of any meaning."
(cf. P. Taivalkoski in "Perspectives in Practice of the UNIDROIT Principles 2016", IBA Publication 2019, p. 211-212)