- Arbitral Award
- ICC International Court of Arbitration 11926
INTERNATIONAL CONTRACT SILENT AS TO APPLICABLE LAW – SOLE ARBITRATOR DECIDES TO APPLY TRANSNATIONAL PRINCIPLES AND RULES SUCH AS THE UNIDROIT PRINCIPLES, THE PRINCIPLES OF EUROPEAN CONTRACT LAW OR THE CENTRAL LIST OF PRINCIPLES AND RULES OF THE LEX MERCATORIA – SUCH PRINCIPLES TO BE COMPARED WITH CORRESPONDING PROVISIONS OF ITALIAN LAW AS THE OTHERWISE APPLICABLE LAW IN ORDER TO AVOID TAKING EITHER OF THE PARTIES BY SURPRISE
In a dispute the Sole Arbitrator, face with the question whether the Respondent was entitled to avoid the contract for mistake, decided to base its decision on transnational principles and rules such as those contained in the UNIDROIT Principles, the Principles of European Contract Law or the CENTRAL list of principles and rules of the lex mercatoria. At the same time, however, the Sole Arbitrator pointed out that before applying such transnational rules he would compare them with the corresponding provisions of Italian law, since Italian law was the applicable law according to the relevant conflict-of-laws-rules and he intended to avoid taking a decision which could take either of the parties by surprise.
“The Sole Arbitrator will first of all examine the question whether the Respondent may avoid the contract for material error under principles of transnational law as they are expressed in such comprehensive systems as the UNIDROIT Principles of International Contract Law, the Principles of European Contract Law (PECL, also known as Lando-Principles) or the Transnational Law Data Base (TLDB) of the Center for Transnational Law (CENTRAL) (hereinafter a)). The Sole Arbitrator will nevertheless test any result which flows from the application of such Principles against the solution which the Italian law applicable to the parties’ relation in accordance with the applicable conflict of law rules […] would yield, in order to avoid unreasonable and unexpected decisions which would take any one of the parties by surprise (hereinafter b)).”
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.135 fn 23)}}