- Arbitral Award
- ICC International Court of Arbitration, Mexico City 12949
SALES CONTRACT - BETWEEN SOME MEXICAN COMPANIES AND A CANADIAN COMPANY - GOVERNED BY A PARTICULAR DOMESTIC LAW (MEXICAN LAW) - APPLICABILITY OF CISG ACCORDING TO ART. 1(1)(A) OF THE CONVENTION - APPLICABILITY OF UNIDROIT PRINCIPLES AS "A COMPLEMENTARY SET OF RULES IN ACCORDANCE WITH TRADE USAGES" (ART. 17.2 ICC ARBITRATION RULES AND ART. 1445, PAR. 4 MEXICAN COMMERCIAL CODE)
WHEN NO SPECIFIC APPLICATION HAS BEEN AGREED BY THE PARTIES REFERENCE TO THE UNIDROIT PRINCIPLES CANNOT BE CONTRARY TO DEFAULT RUES OF THE APPLICABLE DOMESTIC LAW
UNIDROIT PRINCIPLES AS A VALUABLE INSTRUMENT TO INTERPRET COMMERCIAL OBLIGATIONS AND THE WILL OF THE PARTIES
The dispute arose out of a contract for the sale of machinery concluded between some Mexican companies and a Canadian company. At the beginning of the arbitral proceedings, after having chosen Mexican law as the law applicable to the merits of the dispute, the parties requested the Sole Arbitrator to express its considerations concerning the applicability of the CISG and the UNIDROIT Principles.
In a Procedural Order, the Sole Arbitrator confirmed the applicability of CISG according to Art. 1(1)(a) of the Convention, since the contract fell within its scope of application, although the agreement included provisions regarding obligations other than those of a sale of goods.
Regarding the applicability of UNIDROIT Principles, the Arbitrator affirmed that it could take them into consideration, with no need of previous agreement among the disputing parties, but such reference to UNIDROIT Principles cannot be contrary to default rules incorporated within Mexican legislation. Nevertheless, the UNIDROIT Principles, which are an expression of the lex mercatoria, could be considered as a valuable instrument for the interpretation of commercial obligation and the will of the parties, when such interpretation is needed. The Arbitrator concluded that the Principles are consistent with Mexican law as a complementary set of rules in accordance with trade usages (Art. 17.2 ICC Arbitration Rules and Art. 1445, par. 4 of the Mexican Commercial Code).
Published in English (excerpt):
- Special Supplement 2010: Decisions on ICC Arbitration Procedure: A Selection of Procedural Orders issued by Arbitral Tribunals acting under the ICC Rules of Arbitration (2003-2004), pp. 86-87}}