- Arbitral Award
- ICC International Court of Arbitration 12123
- Parties unknown
ARBITRATION AGREEMENT INDICATING “EUROPEAN LAW” AS THE LAW APPLICABLE TO THE MERITS OF THE DISPUTE – ACCORDING TO ARBITRAL TRIBUNAL “EUROPEAN LAW” MAY BE UNDERSTOOD AS “A SORT OF AMALGAM OF FUNDAMENTAL PRINCIPLES TO WHICH THE MAJOR EUROPEAN SYSTEMS ASPIRE, E.G. THOSE WHICH ARE AT THE BASIS OF PROJECTS FOR A EUROPEAN CIVIL CODE, THOSE OF UNIDROIT, THOSE TO BE FOUND IN INTERNATIONAL CONVENTIONS OF UNIFORM LAW, THOSE OF THE LEX MERCATORIA, AND SO FORTH”
In a dispute the arbitration clause provided that the law applicable to the substance of the dispute is “European Law” without further explanation. The Arbitral Tribunal found that the notion of “European law” may have a significant meaning and indicate “a sort of amalgam of fundamental principles to which the major European systems aspire, e.g. those which are at the basis of projects for a European Civil Code, those of UNIDROIT, those to be found in international Conventions of uniform law, those of the lex mercatoria, and so forth.” However in the case at hand it was not necessary further to develop this point, since the parties have subsequently narrowed their choice and requested the Arbitral Tribunal to apply French law .
Before addressing the present case in detail, one should consider certain matters of a general nature.
The arbitration clause states that the merits are to be governed by ‘European Law’ without further explanation. The expression may have a significant meaning, seeking thereby to indicate a sort of amalgam of fundamental principles to which the major European systems aspire: for example, those which are at the basis of projects for a European Civil Code, those of UNIDROIT, those to be found in international Conventions of uniform law, those of the lex mercatoria, and so forth. This type of analysis does not however appear necessary, since the parties have subsequently narrowed their choice and chosen to ask the arbitral tribunal to apply French law to the merits, regardless of any consideration of wider inspiration.
The choice was made at the commencement of the arbitration proceedings (and in TOR) and reflects a power granted to the parties by art. 17 of the ICC Rules.”
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.149 fn 51)}}