- Arbitral Award
- Ad hoc Arbitration, Auckland
CONTRACT BETWEEN A NEW ZEALAND COMPANY AND AN AUSTRALIAN COMPANY - PARTIES' CHOICE OF DOMESTIC LAW (NEW ZEALAND LAW) AS LAW GOVERNING THE CONTRACT - UNCERTAINTY ON THE MATTER OF INTERPRETATION - ARBITRAL TRIBUNAL REFERENCE TO THE UNIDROIT PRINCIPLES AS THE MOST DEFINITIVE CONTEMPORARY INTERNATIONAL STATEMENT GOVERNING THE INTERPRETATION OF CONTRACTUAL TERMS
INTERPRETATION - CONDUCT OF PARTIES AFTER CONCLUSION OF THE CONTRACT - RELEVANT IN INTERPRETATION OF AMBIGUOUS CONTRACTUAL TERMS (ARTS. 4.1, 4.2 AND 4.3 UNIDROIT PRINCIPLES)
The award concerned a contractual dispute involving a New Zealand company and an Australian company. An issue arose as to whether post-contractual conduct by the parties was admissible as a means for resolving ambiguities found in the contractual agreement.
Because the law of New Zealand, which the parties had chosen as the law governing the dispute, was found to be uncertain on this issue ("in a somewhat unsettled state"), the Arbitral Tribunal, which was inclined to admit the taking into account of post-contractual conduct in cases of contractual ambiguity, sought confirmation at a comparative level and in so doing referred above all to Arts. 4.1, 4.2. and 4.3. of the UNIDROIT Principles. It pointed out that "[...] there could be no more definitive contemporary international statement governing the interpretation of contractual terms than in the UNIDROIT Principles".
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- D.A.R. Williams, Q.C., Auckland, New Zealand, who amply refers to the legal aspects of the case in his essay: Further Development of International Commercial Arbitration through the Unidroit Principles of International Commercial Contracts, 2 New Zealand Business Law Quarterly (1996), p. 7 et seq. (17-21)
Abstract published in English and French:
- Uniform Law Review / Revue de droit uniforme, 1999, 166-167}}