- Arbitral Award
- ICC International Court of Arbitration 14748
SALES CONTRACT - BETWEEN A BELGIAN COMPANY AND A MONEGASQUE COMPANY - SILENT AS TO THE APPLICABLE LAW - ARBITRAL TRIBUNAL DECIDED TO APPLY RELEVANT COMMERCIAL USAGES - APPLICATION OF THE UNIDROIT PRINCIPLES WHICH IT CONSIDERED TO INCLUDE"NOTIONS WHICH BELONG TO THE LEX MERCATORIA, AS REFLECTED IN PARTICULAR BY THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACT"
REFERENCE BY THE ARBITRAL TRIBUNAL TO ART. 7.4.9 UNIDROIT PRINCIPLES
In a dispute between a Belgian company, Claimant, and a Monegasque company, Defendant, concerning the performance of a contract concluded in 2004 relating to the sale of frozen food products to be transported by ship. The Claimant alleged various failures during transport and unloading, which it claimed were attributable to the defendant, and claimed compensation for the resulting damage.
In a partial Award rendered in 2008, the Sole Arbitrator decided to submit the dispute to transnational rules. As the contract did not contain any provision in this respect, both parties proposed to refer to the connecting factors of the Rome Convention of June 19th, 1980 on the law applicable to contractual obligations, each of them claiming the application of its national law.
The Sole Arbitrator decided to apply the "usages du commerce pertinents", which it considered to include "les notions qui sont considérées comme appartenant à la lex mercatoria, telles que reflétées notamment par les principes d'UNIDROIT relatifs aux contrats du commerce international".
The Arbitral Tribunal noted that the Claimant, by choosing to resort to ICC arbitration, envisaged the application of international rules of law, without specific connection to any national law, while Respondent considered that it would be appropriate, in the event that Monegasque law could not be applied, to submit the dispute to the lex mercatoria.
The Sole Arbitrator expressly applied article 7.4.9. of the Unidroit Principles.
(Abstract kindly provided by François Mansourati)