Data
- Date:
- 00-00-2007
- Country:
- Arbitral Award
- Number:
- 13284
- Court:
- ICC International Court of Arbitration 13284, Geneva
- Parties:
- --
Keywords
CONTRACT GOVERNED BY CISG - ONE PARTY INVOKING APPLICATION OF PROVISIONS ON HARDSHIP CONTAINED IN THE UNIDROIT PRINCIPLES AND IN THE PECL – APPLICATION DENIED SINCE "HARDSHIP RULES, AS ARTICULATED IN THE UNIDROIT PRINCIPLES OR THE LANDO PRINCIPLES, ARE NOT ACCEPTED IN ALL LEGAL SYSTEMS AND MAY THEREFORE HARDLY BE REGARDED AS A TYPICAL, UNIVERSALLY APPLIED TRADE USAGE"
Abstract
In this case, the seat of the arbitration was Geneva and the CISG was the applicable law. Faced with the absence of provisions on hardship in the Vienna Convention, the sole arbitrator refused to give effect to the Unidroit Principles or the European Principles of Contract Law, considering that these cannot be considered as commercial usages:
"The disagreement between the parties focuses on the question whether the absence of such provisions in the Vienna convention ought to be regarded as a gap that needs to be filled. Based on the preparatory works, this question should be answered negatively... (certain) authors have suggested that the Unidroit principles and, in particular, the hardship clause contained therein, could be regarded as reflecting an international trade usage in the meaning of article 9(2) CISG or article 17(2) of the ICC rules. They overlook that the hardship rules, as articulated in the Unidroit Principles or the Lando Principles, are not accepted in all legal systems and may therefore hardly be regarded as a typical, universally applied trade usage"
(abstract kindly reported by François Mansourati)
Fulltext
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Source
Excerpts published in OLIVET (E.), MARCHISIO (G.), GÉLINAS (F.), « Trade Usages in ICC Arbitration », in. Trade Usages and Implied Terms in the Age of Arbitration (dir. Fabien Gélinas), Oxford University Press, 2016, p. 229.}}