- Arbitral Award
- ICC International Court of Arbitration 11174
TERMS OF REFERENCE STATING THAT PARTIES AGREED TO THE APPLICATION OF A PARTICULAR DOMESTIC LAW (ROMANIAN LAW) – REFERENCE BY CLAIMANT TO INDIVIDUAL PROVISIONS OF UNIDROIT PRINCIPLES IN SUPPORT OF ITS ARGUMENTS – RESPONDENT DOES NOT OBJECT TO APPLICATION OF THE PROVISIONS IN QUESTION – ARBITRAL TRIBUNAL APPLIES THE PROVISIONS IN QUESTION
In a dispute the Terms of Reference stated the following: “The parties agreed that the agreements were subject to Romanian law”. Pursuant to Article 17.2 of the ICC Rules of Arbitration “the Arbitral Tribunal shall take account of the provisions of the contract and the relevant trade usages.”
When Claimant in its post hearing brief referred to the UNIDROIT Principles in support of its arguments, the Arbitral Tribunal invited both parties to comment on some individual provisions of the UNIDROIT Principles which could be helpful for the settlement of the dispute. Since Respondent did not object to the application of the provisions of the UNIDROIT Principles referred to by Claimant, the Arbitral Tribunal held that both parties consented to their application.
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.136 fn 24)}}