- Arbitral Award
- ICC International Court of Arbitration 12460
INTERNATIONAL SALES CONTRACT - GOVERNED BY CISG – GAPS IN THE CONVENTION TO BE FILLED ON THE BASIS OF THE GENERAL PRINCIPLES UNDERLYING THE CONVENTION - SUCH GENERAL PRINCIPLES ARE CONTAINED AND FURTHER DEVELOPED IN THE UNIDROIT PRINCIPLES
An international sales contract contained a choice of law clause in favour of the “substantive law” (“droit matériel”) of a country party to the CISG. The Arbitral Tribunal interpreted this generic reference to the substantive law of the country in question as an indication that the CISG was applicable in the case at hand. At the same time however the Arbitral Tribunal pointed out that the gaps in the CISG would have to be filled on the basis of the general principles underlying the Convention and that these general principles are contained and further developed in the UNIDROIT Principles and that only where the solution cannot be found in the UNIDROIT Principles reference to the domestic law of the country in question was justified.
Voir la sentence partielle dans l’affaire 12460 en 2004 qui énonce :
“CISG, as per its article 7, may be supplemented by those general principles which have inspired its provisions and particularly those which have been substantiated and codified in the UNIDROIT Principles of International Commercial Contracts and actually used in relation with the CISG implementation. This can be observed in arbitral jurisprudence (see ICC Publication No. 642.2002) and in various ICC precedents. At the hearing, the Tribunal raised the issue with the parties whether they might be relevant. The Tribunal has accordingly concluded that the UNIDROIT Principles should provide guidance.
Finally, for any legal question not treated in the CISG or the UNIDROIT Principles, the Tribunal will apply the laws of France.”}}
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.139 fn 31)}}