- Arbitral Award
- Court of International Commercial Arbitration of the Chamber of Commerce and Industry of Romania
CONTRACT BETWEEN A BELGIAN AND A ROMANIAN COMPANY - CHOICE OF LAW CLAUSE EXCLUDING ANY DOMESTIC LAW AND REFERRING TO GENERAL PRINCIPLES OF LAW RECOGNIZED TO BE APPLICABLE IN INTERNATIONAL TRADE LAW AS LEX CONTRACTUS - ARBITRAL TRIBUNAL DECIDES THAT UNIDROIT PRINCIPLES APPLY
RELEVANCE OF USAGES - REFERENCE TO ART. 1.9 UNIDROIT PRINCIPLES
The case concerned a contract between a Belgian company (Claimant) and a Romanian company (Respondent) which stipulated that ”any issue arising out the contract which has not been expressly by its provisions shall not be governed by a particular national law system, but shall be exclusively governed by the general principles of law recognized to be applicable in international trade law, unless otherwise provided by any contractual provision”.
Under the principle of lex voluntatis, the Arbitral Tribunal reasoned that the reference to the general principles above means the reference to the UNIDROIT Principles of International Commercial Contracts. The Arbitral Tribunal outlined the following paragraph of UNIDROIT Principles of International Commercial Contracts(1994): ”They may be applied when the parties have agreed that their contract be governed by general principles of law, the lex mercatoria or the like”. Consequently, the Arbitral Tribunal applied UNIDROIT Principles of International Commercial Contracts (1994) as lex contractus.
For the purpose of solving the merits of the dispute, the Arbitral Tribunal relied on article 1.8(2) [now Art. 1.9(2)] of the UNIDROIT Principles which specifies that ”The parties are bound by a usage that is widely known to and regularly observed in international trade by parties in the particular trade concerned (...)”.