Reproduced with permission of Uniform Law Review / Revue de droit uniforme, vol. VIII (2003-3) 631-640
Loukas Mistelis [*]
I. INTRODUCTORY REMARKS -- THEORETICAL BACKGROUND
Arbitration is constantly gaining in acceptance and popularity despite occasional, largely unsubstantiated, criticism. The prime characteristic of this private system for dispute settlement, apart from the binding nature and easy enforcement of awards, is the fact that the parties effectively have a say in the way their bespoke arbitration should be structured and what it should ultimately look like. Arbitration tribunals are held to ensure due process throughout the proceedings. The parties' autonomy extends to decisions relating to applicable law or standard for the determination of their rights and obligations.
It has been argued for many years that, despite the "confidentiality" of arbitration and the absence of consistent or official publication of awards, there is effectively a transnational legal order which emanates from the practice of international arbitration tribunals.
Indeed, while globalisation, in the aftermath of 11 September 2001, is no longer fashionable, the main premise -- which has it that, in international commercial relations , the incremental organic creation of an autonomous system may be observed [page 631] which operates on the basis of rules of law rather than legal systems -- is appealing and increasingly well-founded. Effectively, we could speak of a lex arbitralis materialis which consists of transnational substantive rules, general principles of law and practice as generally expressed in the work of leading arbitration institutions and international law firms. In addition, such an emerging autonomous system is compatible with the Rules of many of the major international arbitration institutions. Such a system can only work if it is predictable enough and if it is an accurate reflection of accepted practice(s). As a rule, i t will operate owing to party autonomy, and once widely acceptable, it will have a significant role to play in facilitating trade. A possible disadvantage of such a system may be that it is culturally neutral or, where it does express a legal culture, this may not be universally acceptable. However, it may be argued that, to the extent that lawyers and law firms are the ultimate users of this autonomous system, those who participate in major business dispute resolution share the same culture, irrespective of their place of work.
Against this background, the Unidroit Principles of International Commercial Contracts  were elaborated in 1994 (and currently an expansion of the Principles is due for adoption). They represent a modern approach to international trade law  and are increasingly used in international contract practice and dispute resolution. [page 632]
The ambit of the UNIDROIT Principles is not restricted to a particular kind of transaction but covers the general part of contract law. The aim is simply to reflect and restate existing international contract law. The decisive criterion in drafting them was not just which rule had been adopted by the majority of countries, but also which of the rules under consideration had the most persuasive value and/or appeared to be particularly well-suited to cross-border commercial transactions. Hence, they are not subject to the compromises which so often dominate international legislative efforts.
Historically, international commercial arbitration began to embrace transnational rules, codified . or otherwise, with the emergence of a modern attitude to the issue of determining the applicable law. Applicable law, in international commercial arbitration, is one of the most hotly debated topics. While in the past, it was nearly always necessary, at least in theory, for the tribunal to determine a conflict-of-laws system and use it to determine the applicable substantive law, in recent years, following arbitral practice, arbitration laws and rules empower tribunals to determine substantive laws or rules of laws directly. This method is also known as voie directe, i.e. direct reference or determination. Direct choice was always possible for the parties, who do not need to justify their choice of law or rules of law.
In practice, a tribunal is often assisted in determining the applicable law. For example, the parties may have made a partial choice of law, solutions may be offered by the contract itself, the circumstances of the case and the submissions of the parties, or the law or rules governing the arbitration may offer a conflict-of-laws rule. Arbitrators determine the applicable law indirectly, using conflict-of-laws rules (voie indirecte) or directly, applying the law they consider appropriate (voie directe). [page 633] Although voie directe is becoming quite popular in modern arbitration laws  and rules, the voie indirecte method is still codified and practised in many arbitration rules and laws.
Voie directe, backed by a lex arbitralis materialis, as is the case with the UNIDROIT Principles, has a positive impact on arbitration by simplifying choice-of-law problems and attributing significance to rules or law and non-legal standards in addition to the traditional application of law.
II. THE AWARD: ISSUES AND OUTLOOK
The separate Arbitral Award rendered in 2001 by the Arbitration Institute of the Stockholm Chamber of Commerce in case 117/1999 addresses all the issues outlined supra.
1. "Separate Award" -- relevant facts
The dispute involved a Luxembourg company, neutrally named "European Company" and a Chinese company, neutrally referred to as "Technical Corporation". The European company was licensor and licensee; the Technical Corporation was licensee and licensor. Their contractual relationship lasted from 1980 to 1995. In 1998, they reached a settlement which effectively imposed on them a secrecy obligation until 31 December 2002. However, alleged breaches of the secrecy obligation were recorded and the European company filed a request for arbitration with the Arbitration Institute [page 634] of the Stockholm Chamber of Commerce, claiming damages for breach of secrecy obligation.
The case was referred to the arbitration tribunal in July 2000. The place of arbitration was Stockholm and the arbitration tribunal consisted of two Swedish arbitrators (one being the Chairman) and one Chinese arbitrator. On 24 October 2000, the European company requested determination of the issue of applicable law in a final partial award. Respondent agreed with claimant in respect of this request. There had been no agreement as to the applicable law in either the 1980 or the 1998 agreement.
2. Voie directe -- its application by the tribunal
Both parties made submissions concerning applicable substantive law. Claimant (the European company) submitted that the tribunal should apply Swedish law or, alternatively, (1) the UNIDROIT Principles, or (2) Luxembourg law, presenting the following arguments:
As was to be expected, respondent made a different submission, to the effect that Chinese law should apply, supported by the following arguments:
The tribunal took a rational approach. In particular:
How the tribunal employed voie directe in this case to arrive at the application of the UNIDROIT Principles is not obvious. It is undisputed that voie directe is a modern method of dealing with conflict of laws, an autonomous arbitral conflict of laws rule. It aims at shifting the focus from Savigny's a priori abstract localisation of legal issues and their linkage to a particular national legal system to the determination of applicable substantive rules, be they of national legal origin or not, which the tribunal deems appropriate.
"Appropriate" has a broad meaning and can be applied in a wider sense. Accordingly, a particular national system may be appropriate because it is highly developed, sophisticated and suitable for the contract or dispute in question, even if not closely connected to the dispute. A national system of law or a set of legal or non-legal rules which are directly or closely connected with the transaction and the dispute will normally also be appropriate to determine the substance of the dispute. Ultimately, this autonomous arbitration conflict-of-laws rule facilitates a wider acceptance and application of international legal and non-legal standards which are relevant to the resolution of disputes in international arbitration.
It would appear that in the partial award here reviewed, the tribunal was guided by the submissions of the parties, and the principles codified in the Rome Convention, in particular Article 4. It is puzzling why the tribunal considered the Rome Convention. Indeed, again the question is whether, and if so, to what extent, the tribunal needs to explain how it reached a particular decision. Is this reliance on these sources to determine the appropriate rules of law satisfactory? Should the tribunal stipulate the criteria for determining which rules or standards are most appropriate?
The tribunal noted that the parties deliberately refrained from selecting any law in any of their contractual documents. Against this background, it was essential that the tribunal should not disturb the balance introduced by that lack of choice and look at neutral, mutually acceptable solutions. It has also been argued that whatever choice a tribunal makes with respect to the applicable law, it should be guided by its duty to select the law which better corresponds to the legitimate expectations of the parties. This attempt comes close to the principle of hypothetical choice of law (what the parties would have chosen, had they made a choice). Hypothetical choice of law has, however, been rejected, at least within the EU and most emphatically in Germany. [page 637]
The tribunal's reasoning in relation to the criteria that point towards the appropriate law is esoteric and occasionally misguided. It was right in assessing the submissions of the parties, but given the Swedish law and the SCC Arbitration Rules, there was no justification for looking at conflict of laws in general, and at the Rome Convention in particular. It is also significant that the Rome Convention could not offer a solution in the context of the underlying bilateral agreements between licensors and licensees that are, at the same time, licensees and licensors. The doctrine of depeage in Articles 3(1) and 4(1) of the Rome Convention combined with the characteristic performance of Article 4(2) could have led to the application of both Luxembourg and Chinese laws.
The tribunal was, however, correct in ultimately relying on non-national standards that meet the standards of neutrality (balance-keeping), sophistication and development (appropriateness test) required to govern the merits of the dispute. While the tribunal has a rather unclear roadmap of how to arrive at the appropriate destination, there is no doubt that the destination itself was appropriate. Hence, the solution adopted by the tribunal is welcome, in particular insofar as it turns rules of law into the primary source of applicable standards to be supplemented, if necessary, by national law. This destination can and should be reached without the signposts provided for in traditional conflict of laws.
3. Application of the UNIDROIT Principles
The UNIDROIT Principles aim at avoiding, or at least considerably reducing, the uncertainty accompanying the use of lex mercatoria and to provide a restatement of accepted principles of international contracts. According to the Preamble, the UNIDROIT Principles:
"[...] set forth general rules for international commercial contracts.
[...] shall be applied when the parties have agreed that their contract be governed by them.
[...] may be applied when the parties have agreed that their contracts be governed by general principles of law, the lex mercatoria or the like.
[...] may provide a solution to an issue raised when it proves impossible to establish the relevant rule of applicable law.
[...] may be used to interpret or supplement international uniform law instruments.
[...] may serve as a model for national and international legislators."
If the international business community and arbitrators recognise the UNIDROIT Principles, they will be part of the lex mercatoria. In actual practice, a growing number of cases are being reported in which the Principles have been applied as the applicable law to govern international sales contracts. For example, in two other [page 638] cases, the UNIDROIT Principles were applied without express reference to them by the parties. The award here reviewed is another prominent addition to this list.
The UNIDROIT Principles have also been used in international arbitration proceedings as a means of interpreting domestic law  or as a means of interpreting international uniform law. Hence, they have been and may be applied again in situations not expressly contemplated in the Preamble. In the Stockholm award, they were used as a primary source of rules of law to determine the rights and obligations of parties, to be supplemented, at need, by Swedish law.
One additional peculiarity of this case is that the parties could not have contemplated the UNIDROIT Principles in 1980 or even in 1995, since they were only [page 639] published in 1994. In other words, the UNIDROIT Principles in this case could not have been the rules of law applicable on the basis of the parties' agreement. However, absent agreement by the parties as to the law or rules of law governing the merits of the dispute, it is possible under several arbitration rules and laws to arrive at the application of the UNIDROIT Principles.
The tribunal's decision to apply the UNIDROIT Principles is not only doctrinally correct but it is also sensible. Where there is no agreement by the parties nor potential consensus between them, neutral, developed and sophisticated rules of law should be applied as the most appropriate. Whether this particular case is also a victory for supporters of the lex mercatoria is rather an academic question. In fact, the tribunal arrived at the application of the UNIDROIT Principles by operation of the Arbitration Rules applicable. Apparently, this is the first case where a tribunal, operating under the auspices of the Stockholm Chamber of Commerce, was called upon to apply the most appropriate rules of law. There are some "precedents" in ICC arbitral practice, with similar results.
Partial Award in SCC case 117/1999 is proof that voie directe can work effectively if there are applicable standards or rules of law which are neutral, developed and sophisticated. The UNIDROIT Principles are a codified and hence, predictable set of rules of law which can serve as "most appropriate" rules to govern the merits of arbitration disputes. [page 640]
* LLB (Athens), MLE, Dr Iuris (Hannover), MCIArb, Clive M Schmitthoff Reader in International Commercial Law, School of International Arbitration, Centre for Commercial Law Studies, Queen Mary University of London (United Kingdom); Adjunct Professor, Pace University Law School (United States of America) and Secretary of the CISG-AC.
1. But see, e.g., Yearbook of Commercial Arbitration, Journal du droit international, International Legal Materials, Bulletin of the ICC Court of Arbitration, ASA Bulletin and ICSID Reports, which periodically and quite systematically publish awards.
2. See, e.g., Julian D. M. Lew, Applicable Law in International Commercial Arbitration (New York: Oceana 1978); Klaus Peter Berger, International Economic Arbitration, Kluwer (The Hague et al), 1993; Yves Dezalay / Bryant Garth, Dealing in Virtue - International Commercial Arbitration and the Construction of a Transnational Legal Order, University of Chicago Press (Chicago & London), 1996; Richard P. Appelbaum / William L. F. Felstiner / Volkmar Gessner (eds.), Rules and Networks. The Legal Culture of Global Business Transactions, Hart Publishing (Oxford), 2001; Julian D.M. Lew / Loukas A. Mistelis / Stefan M. Kröll, Comparative International Commercial Arbitration, Kluwer Law International (London, The Hague), 2003, chapters 2, 4 and 18.
3. The World Trade Organisation Doha Ministerial Declaration (November 2001) makes no reference to globalisation which seems to have been put on hold. Instead harmonisation at a regional level is encouraged. See, inter alia, <http://www.wto.org/english/thewto_e/minist_e/min01_e/min01_e.htm. The position has not changed with the Cancun Ministerial Conference (Summer 2003).
4. More or less synonymous with lex mercatoria. See, e.g., Klaus Peter Berger, The Creeping Codification of Lex mercatoria Kluwer (The Hague et al), 1999); Thomas Carbonneau (ed.), Lex Mercatoria and Arbitration: a Discussion of the New Law Merchant, revised edition 1998, Kluwer and Juris Publishing (New York et al), 1998; Berthold Goldman, "lex mercatoria", 3 Forum International, 1983, 194; Aleksandar Goldstájn, "The New Law Merchant Reconsidered", in F. Fabricius (ed.), Law and International Trade, Festschrift für Clive M Schmitthoff, 1973, 171; Roy Goode, "Usage and Its Reception in Transnational Commercial Law", 46 The International Comparative Law Quarterly, 1997, 1-36; Martin Hunter, "Publication of Arbitration Awards and lex mercatoria", 54 Arbitration, 1988, 55; Ole Lando, "The lex mercatoria in International Commercial Arbitration", 34 The International Comparative Law Quarterly 747, 1985; Lew, supra note 2; Andreas F. Lowenfeld, "lex mercatoria: An Arbitrator's View", 6 Arbitration International, 1990, 133; Lord Mustill, "The New Lex Mercatoria -- the First Twenty-five Years", in Bos & Brownlie (ed.), Liber Amicorum for Lord Wilberforce (Oxford), 1987, 149-183 and 2 Arbitration> International, 1988, 86; Luke Nottage, "The Vicissitudes of Transnational Commercial Arbitration and the lex mercatoria: A View from the Periphery", 16 Arbitration International, 2000, 53-78; Jan Paulsson, "Le lex mercatoria dans l'arbitrage CCI", Revue de l'Arbitrage, 1990, 55.
5. See, e.g., AAA International Rules Article 28; ICC Article 17; LCIA Article 22.3; Stockholm Chamber of Commerce Article 24. But see also the traditional UNCITRAL Rules Article 33.
6. Hereinafter referred to as Unidroit Principles. They were published in 1994 and can be found at <http://www.unidroit.org/english/principles/pr_main.htm>.
7. See, e.g., M.J. Bonell, "The Unidroit Principles of International Commercial Contracts -- Nature, Purposes & First Experiences in Practice", <http://www.unidroit.org/english/principles/pr-exper.html>; M.J. Bonell, "The Unidroit Principles in Practice -- The Experience of the First Two Years", in <http://www.cisg.law.pace.edu/cisg/biblio/pr-exper.html>, 27 Unif. L. Rev., 1997, 34; Alejandro Garro, "The Contribution of the Unidroit Principles to the Advancement of International Commercial Arbitration", 3 Tulane Journal of International & Comparative Law, 1994, 93; Detlev Vagts, "Arbitration and the Unidroit Principles", in: Contratación internacional, Comentarios a los Principios sobre los Contratos Internationales del Unidroit (Univ. Nacional Autonoma de Mexico), 1998, 265-277 <http://www.cisg.law.pace.edu/cisg/biblio/vagts.html>; Hans van Houtte, "Unidroit Principles of International Commercial Contracts", 11 Arbitration International, 1995, 373. On 27 April 2001, ICC and Unidroit jointly organised a symposium on the Use of the Unidroit Principles in International Commercial Arbitration. The proceedings were published in ICC Bulletin 2002 Special Supplement as UnidroitPrinciples of International Commercial Contracts; extracts and discussion of the awards were published in 12(2) ICC Bulletin.
8. See, e.g., LEW / MISTELIS / KRLL, supra note 2, Chapter 18, paras. 18-41 - 18-70.
9. See Michael BRIDGE, The International Sale of Goods: Law and Practice, Oxford University Press (Oxford), 1999, 54 et seq.
10 Similar to the UNIDROIT Principles, but not yet used by arbitration tribunals, are the Principles of European Contract Law. These are a restatement of rules of contract law common to all European jurisdictions. See Hugh BEALE / Ole LANDO, Principles of European Contract Law, Kluwer, 1999. See also the commentary at <http://www.cisg.law.pace.edu/cisg/text/peclintro.html> The Principles of European Contract Law also provide a useful set of contractual rules which may be adopted by parties or be inferred by a tribunal for the interpretation of contractual provisions. Other codifications of transnational law include, e.g., the CENTRAL Principles available at <www.tldb.de>.
11. See, e.g., LEW, supra note 2; Horacio GRIGERA NAON, "Choice-of-law Problems in International Commercial Arbitration", 289 Recueil des cours de l'Acadmie de droit international de La Haye, 2001, 9.
12. See further: Emmanuel Gaillard / John Savage (eds.), Fouchard Gaillard Goldman on International Commercial Arbitration Kluwer Law International (The Hague et al), 1999, at paras. 1552 et seq.; LEW / MISTELIS / KRLL, supra note 2, at paras. 17-66 - 17-77.
13. See, e.g., ICC awards No. 10533 (2000) and No. 10452 (2001), both unpublished but cited in GRIGERA NAN, supra note 11, at 36, footnote 8.
14. See, e.g., France, NCPC Article 1496; Germany, ZPO section 1051(2) (limited voie directe); Netherlands, CCP Article 1054(2); Switzerland, PIL Article 187(1).
15. See, e.g., AAA ICDR Article 28(1); ICC Rules Article 17(1); LCIA Article 22(3); NAI Rules Article 46; SCC Rules Article 24(1); WIPO Rules Article 59(1).
16. See, e.g., Model Law Article 28(3); England, Arbitration Act section 46(3); European Convention Article VII; UNCITRAL Rules Article 33(1); Vienna Rules Article 16(1).
17. Stockholm Arbitration Report 2002, 59-65.
18. Idem, 65-70 (by Herbert KRONKE) and 71-81 (by Juan FERNANDEZ-ARMESTO).
19. The provision reads:
"(1) The Arbitrator shall decide the merits of the dispute on the basis of the law or rules of law agreed by the parties. In the absence of such an agreement, the Arbitrator shall apply the law or rules of law which the Arbitrator considers to be most appropriate."
20. Article 24(1).
21. Article 4(2). This provision is particularly helpful if there is one predominate (characteristic) performance, or in the case of bilateral contracts if one performance is a payment (hence making the other performance characteristic).
22. See supra note 17, at 65.
23. See, e.g., LEW / MISTELIS / KRLL, supra note 2, para 17-42, 17-49 et seq., 17-67 et seq.
24. Ibid, at 17-73.
25. KRONKE, supra note 18, at 68.
26. See, e.g., ICC case No. 7110, 12(2) ICC Bulletin 39 (2001); ICC case No. 9875, 12(2) ICC Bulletin 95 (2001). Comments by Julian LEW and Pierre MAYER in ICC Bulletin Special Supplement -- UNIDROIT Principles, 2002, at 60 et seq. See also KRONKE, supra note 18, at 69.
27. See, e.g., Yves DERAINS, in ICC Bulletin Special Supplement -- UNIDROIT Principles, 2002, 13.
28. See KRONKE, supra note 18, at 69 and Gerhard KEGEL / Klaus SCHURIG, Internationales Privatrecht, 8th ed., Beck (Munich), 2000, at 575 et seq.
29. Comment 4(b) in the Preamble. See also UNIDROIT Principles for International Commercial Contracts: A New Lex Mercatoria, ICC Publication 490/1, 1995.
30. There are over 60 (or, according to some reports, as many as 100) reported awards that refer to or apply the UNIDROIT Principles. (KRONKE, supra note 18, at 66). See, e.g., the award in ICC case No. 8331 (1996), 125 Journal du droit international, 1998, 1041; Milan Court of Arbitration award No. 1795, 1 December 1996, Unif. L. Rev., 1997, 602; International Arbitration Centre for the CCI of the Russian Federation award No. 116, 20 January 1997, cited in M.J. BONELL, An International Restatement of Contract Law, 2d ed., Transnational Publishers (New York), 1997, 252. One ICC award denies application of the Principles: ICC case No. 8873, 125 Journal du droit international, 1998, 1017. See also ICC Bulletin Special Supplement, 2002, UNIDROIT Principles of International Commercial Contracts and 12(2) ICC Bulletin for extracts and discussion of awards. Many awards are also available at <www.unilex.info>.
31. See ICC award No. 9797, 28 July 2000, Andersen Consulting v Arthur Andersen and Andersen Worldwide Société Coopérative, 15(8) Mealey's IAR A1 (2000) and Michael Joachim BONELL, "A 'Global Arbitration Decided on the Basis of the UNIDROIT Principles: In re Andersen Consulting Business Unit Member Firms v Arthur Andersen Business Unit Member Firms and Andersen Worldwide Société Coopérative", 17 Arbitration International, 2001, 249. See also award in ICC case No. 8502, 1996, 10(2) ICC Bulletin, 1999, 72. The contract between a Vietnamese exporter and French and Dutch buyers was for the supply of rice. The contract did not contain a choice of law clause. The Tribunal decided to base its award on "trade usages and generally accepted principles of international trade" and to refer "in particular to the 1980 Vienna Convention or to the Principles of International Commercial Contracts enacted by UNIDROIT, as evidencing admitted practices under international trade law" [emphasis added]. The individual provisions it referred to were Articles 76 CISG and 7.4.6 (Proof of harm by current price) of the Principles. Another award was rendered in an ad hoc Arbitration held in Buenos Aires, award of 10 December 1997, Unif. L. Rev., 1998, 178. The contract was for the sale of shares (between shareholders of an Argentine company and a Chilean company). The contract did not contain a choice of law clause and the parties authorised the tribunal to act as amiables compositeurs. Notwithstanding the fact that both parties had based their claims on specific provisions of Argentine law, the tribunal decided to apply the UNIDROIT Principles, holding that these constituted "usages of international trade reflecting the solutions of different legal systems and of international contract practice" [emphasis added], and that as such, according to the Model Law, Article 28(4), they should prevail over any domestic law. The individual provisions of the Principles applied to the merits of the case were Articles 3.12 (Confirmation), 3.14 (Notice of avoidance) and 4.6 (Contra proferentem rule).
32. See, e.g., Court of Arbitration, Berlin, 1990, award in case SG 126/90, American Journal of Comparative Law, 1992, 657 at 665; ICC case No. 8240, 28 Law & Policy in International Business, 1997, 943 at 982; ICC case No. 8540, Unif. L. Rev., 1997, 600; ICC case No. 8486, 125 Journal du droit international, 1998, 1047; Zurich Chamber of Commerce award of 25 November 1994, XXII Yearbook of Commercial Arbitration, 1997, 211; Court of Arbitration of the Economic Chamber in Prague award of 17 December 1996, Unif. L. Rev., 1997, 604.
33. See, e.g., International Court of Arbitration of the Federal Chamber of Commerce in Vienna, 15 June 1994, awards in cases SCH 4318 and SCH 4366, Recht der internationalen Wirtschaft, 1995, 690, 122 Journal du droit international, 1995, 1055; ICC award No. 8128, 1995, 123 Journal du droit international, 1996, 1024.
34. See also for a recent review of practice Anthony C. SINCLAIR, "Using the UNIDROIT Principles of International Commercial Contracts in International Commercial Arbitration", 6(3) International Arbitration Law Review, 2003, 65-74.
35. See, e.g., the examples in FERNANDEZ ARMESTO, supra note 18, at 75 et seq. Most awards relating to UNIDROIT Principles are published in www.unilex.info.
36. This new trend started with Article 1496 of the French New Code of Civil Procedure where reference is made to rules of law rather than law. See also supra notes 14 and 15 for further examples of arbitration rules and laws.
37. See, e.g., ICC case No. 7375 of 5 June 1996 where the parties have chosen no law but agreed to the application of general principles of law; the tribunal applied general principles including the UNIDROIT Principles. In ICC case No. 9875 of January 1999, the tribunal applied lex mercatoria including the UNIDROIT Principles. Both awards are available at <www.unilex.info>.