1. The United Nations Convention on Contracts for the International Sale of Goods, adopted on 11 April 1980 (Vienna Convention), provides a good illustration of the special nature of the arbitrator's task when faced with an international private law convention. It will be recalled that Article 1.1 of the Vienna Convention states that the latter is applicable if one of the following two criteria is met: the parties have their places of business in different Contracting States, or the rule of conflict of the forum refers to the law of a Contracting State. Given that an arbitrator, unlike a State court, does not have a forum, the question of the applicability of the Vienna Convention appears in a rather different light in arbitration than before a State court. An arbitrator will not think in terms of rules of conflict or territoriality. Rather, he will either consider that the parties have explicitly or implicitly chosen the Vienna Convention and apply it on this ground (I), or find that no such choice has been made and thus apply the Vienna Convention if he considers such a choice to be appropriate (II). In the second case, he will enjoy considerable discretion, for his choice is not subject to review by State courts as the review of arbitral awards on the merits is prohibited by the New York Convention and the vast majority of national arbitration laws.

I. Explicit or implicit choice

2. It is necessary to distinguish between two situations. More often than not, the parties will have chosen a national law to govern their contract (A). However, they may occasionally have referred directly to the Convention (B).

A. Reference to the national law of a Contracting State

3. It is well known that the rules on the international sale of goods laid down in the Vienna Convention form part of the national laws of Contracting States. They can therefore only be excluded if it is proved, in accordance with Article 6 of the Convention, that this was what the parties intended. For State courts, the applicability of the Convention does not raise particular problems: if the applicable law is that of the country where the court is located or that of another Contracting State, the court will apply the Convention unless it is established that the parties intended otherwise. What about for arbitrators?

4. When the parties have chosen the law of a Contracting State, arbitrators-like State courts-will infer that the Vienna Convention is applicable to the relations between the parties. There have been many awards in which arbitral tribunals have done so.2 2[Page44:] Such solutions are justified, for in arbitration, as in State court proceedings, there is no requirement that the parties should be familiar with the content of the law they have chosen in order for it to be applied. There simply needs to be no doubt about their intention to adopt it.

5. These solutions are but the logical conclusion to be drawn from the fact that as this is a convention of substantive law, the rules it contains are incorporated in the laws of the States that are parties thereto, just like any other rules, be they national or treaty-based. Such solutions are therefore not based on a renvoi by the national law to the Convention, for the Convention is fully part of national law.

6. In some awards, however, there is a tendency to base the solution on Article 1.1(b) of the Convention, according to which the Convention is applicable where the rules of private international law lead to the application of the law of a Contracting State.3 This reference to the rule of conflict contained in the Convention is sometimes based on the parties' choice of law. However, such reasoning wrongly treats the rule of party autonomy as a rule of conflict, whereas it is in fact a substantive rule, at least for arbitrators. Thus, the renvoi under Article 1.1(b) cannot be applied when the law chosen by the parties is that of a Contracting State. In such situation, either the parties' choice of law is valid, in which case the provisions of the Convention will apply without renvoi, or it is invalid.

7. It is of course possible for the parties to expressly exclude the application of the Vienna Convention. In this case, arbitrators, like courts, will apply Article 6 of the Convention, which allows the parties to derogate from the Convention. If the parties have explicitly expressed a wish to oust the Convention, this will be respected. Thus, in a case in which the parties had chosen Austrian law to govern their contract, the arbitral tribunal recalled that this meant that the Convention would be applied unless a contrary intention was explicitly stated.4

The parties' wish to exclude the application of the Convention may be implied rather than explicit. Thus, a reference to the 'provisions of the Italian Civil Code' can be interpreted as implicitly excluding the Convention,5 as the latter, while forming part of Italian law, is not incorporated in the Italian Civil Code.

8. On the other hand, an arbitrator would not correctly apply the parties' will if he were to exclude the Convention for the sole reason that the parties had not specifically displayed their intention to adhere to it. For example, an arbitral tribunal excluded the Convention in a case in which a Polish seller and a Greek buyer had opted for the application of Swiss law. Seeing this choice as an expression of the parties' wish to choose a 'neutral' law, and given that the seat of the arbitration was in Zurich, the arbitral tribunal considered that the parties meant to refer to the Swiss Code of Obligations and to exclude the Vienna Convention.6 However, apart from the fact that selecting Switzerland as the seat of the arbitration has little bearing on the interpretation of the parties' intention regarding the law applicable to the merits, it is hard to see how an arbitrator, without any explicit or implicit indication by the parties that he should do so, should apply only part of the contractual law chosen by them, i.e. the Code of Obligations, and not the Swiss rules on international sales as they result from the Convention. Nor is there any reason to think that the Vienna Convention would not meet the demands of 'neutrality' ascribed to the parties in this case.7[Page45:]

9. Criticism may also be levelled at those awards in which a reference to a national law is taken to mean domestic law only. This happened in a case where the parties had made their dispute subject to 'the substantive law of France'.8 The arbitrators interpreted this as a reference to French domestic sales law, but in so doing they seem to have overlooked the fact that the Vienna Convention is a convention of substantive law and that the rules it contains are therefore substantive rules.

10. What about when the parties have referred to the law of a Contracting State but have not mentioned the Vienna Convention in the arbitration proceedings? Is this to be taken as a kind of procedural agreement,9 the effect of which would be to exclude the Convention? The answer is yes if we are to judge by an award rendered in a case where both parties had limited their arguments to French domestic sales law, without any reference to the Vienna Convention.10 There is no reason to criticize this solution. After all, the Vienna Convention is not mandatory, so it is difficult to see why an arbitrator should raise the question of its application of his own motion. One may perhaps wonder why, in the latter case, the arbitrator felt it necessary to exclude the application of the Convention when none of the parties had made any reference to it. This can probably be explained by a pedagogical concern on the part of the tribunal, which in itself cannot be criticized.

11. There have been examples of other, more unusual situations. In one contract, the parties had designated French law and referred to the Vienna Convention to fill any gaps.11 This was a strange provision, to say the least, for when the Convention is applicable, it is the role of domestic law to fill gaps rather than the opposite. The arbitrator therefore inquired into the parties' intention and came to the conclusion that they had intended French domestic law and the Vienna Convention to be applied to different matters, the latter to sales and the former to all other kinds of contracts.12

B. Direct reference to the Convention

12. It sometimes happens that the parties have included in their contract a direct reference to the Vienna Convention as the law applicable to their relations.13 Should the arbitrator, in such case, check that the prerequisites for its application have been satisfied? For instance, it may be that the parties do not have their places of business in Contracting States, as provided in Article 1.1(a) of the Convention, or that the sale cannot be considered as international within the meaning of the Convention since the two parties are established in the same State. The second situation occurred in a case where the two parties were established in Norway.14 However, the arbitrator rightly gave effect to the parties' stated wish.

13. The real question, in fact, is not so much whether it is possible for the parties to make their relations subject to the Vienna Convention, but rather the implications of such a choice.

Opinions differ as to the status of an international convention relating to substantive law when its scope is extended through party autonomy. Some consider that the effect of the parties' will is to bring the contract within the scope of the instrument they have chosen,15 while others see it as having the opposite effect of incorporating the instrument into the parties' contract, with the result that any mandatory provisions in [Page46:] the chosen instrument would not override any contractual provisions to the contrary.16

14. Is there a place for such a discussion when it comes to arbitration? An award answered positively in a dispute over a sales contract between a Finnish seller and an Italian buyer, in which the parties had inserted a clause subjecting it to the Vienna Convention.17 Finland, it will be recalled, has not accepted the second part of the Vienna Convention. The arbitrator therefore enquired as to whether the Convention was applicable in its entirety and whether it had contractual or statutory status as far as the parties were concerned:

Now, it is important to analyse whether the Convention is applicable in its entirety and whether its application comes from the agreement of the parties or because of the applicable law.

a) When the Convention is only applicable because it has been chosen by the parties, it has the same nature as an agreement. As with all contractual agreements, some of its provisions can then be avoided by the law declared applicable by the conflict of laws rules in the absence of choice. . . .

b) When the Convention is applicable because it has been ratified, it has the same nature as a Statute or an Act of Parliament.

15. In other words, the arbitrator sought to determine whether the contract was subject to the law of a State that had adopted the Vienna Convention. If this had been the case, the Convention would have been regarded as having legislative status. If not, it would have been treated as having contractual status. This approach has been rightly criticized.18 Firstly, it is meaningless in the case of the Vienna Convention, as this instrument is not mandatory and cannot therefore come into conflict with the contractual provisions, which are naturally intended to prevail. Secondly, it is only in the courts that a conflict can arise between a convention whose application is extended by the parties and a national law designated by a rule of conflict; this is not possible before arbitral tribunals, which are not subject to a system of conflict of laws that might designate a law other than that chosen by the parties. As far as arbitrators are concerned, the rules of law chosen by the parties necessarily apply on an exclusive basis, and there is no need to distinguish between these rules according to whether they derive from national law, a substantive law convention or an anational instrument such as the UNIDROIT Principles of International Commercial Contracts.

Hence, in the case discussed above, the arbitrator had no need to resort to a rule of conflict to determine whether the Vienna Convention applied as a contract or a statute. The mere fact that the parties had agreed to make their relations subject to the Vienna Convention meant that it should be applied just like any other system of law.

16. It may, on the other hand, be that the applicable mandatory provisions of a national law that is not that of a Contracting State are incompatible with the rules of the Vienna Convention chosen by the parties. This situation, however, is no different from that in which a mandatory law (loi de police) foreign to the law chosen by the parties is taken into consideration. An arbitrator is free to take such rules into consideration, especially when the matter has a bearing on the validity and enforcement of the award.[Page47:]

II. Application of the Vienna Convention when it has not been chosen by the parties

17. The situation is clearly different when no choice has been made, be it implicitly or explicitly. In this case, an arbitrator may nonetheless apply the Vienna Convention in one of two ways: either pursuant to a rule of conflict (A), or directly (B).

A. Application of a rule of conflict

18. As an arbitrator does not belong to a particular jurisdiction, he is not subject to a particular system of conflict of laws, but is free to refer to the system he considers appropriate. There was indeed express provision to this effect in the pre-1998 ICC Rules of Arbitration.19 Although the conflict of laws approach is now regarded as obsolete in arbitration,20 arbitrators can-and often do-continue to resort to it. When an arbitrator has recourse to a rule of conflict to determine whether or not the Convention should be applied, he will generally look to see whether the law of a Contracting State is applicable to the contract. In this case, he will be applying the connecting factor contained in Article 1.1(b) of the Convention (a). Sometimes, the arbitrator will apply the Convention on the basis of the place where the parties are established. In this case, it is the connecting factor contained in Article 1.1(a) that is applied (b).

a) Reference to the law of a contracting state

19. There are many possibilities open to an arbitrator who, in order to designate the law applicable to a contract, looks for the rules of conflict of laws appropriate to a given situation. Usually, the arbitrator will apply the various rules of conflict that may be applicable. These will not include the rules of conflict at the seat of the arbitration, for there is no particular reason to take these into consideration. Other connections, however, may be used.

20. This method may lead to the designation of an international convention containing rules of conflict, which in turn refers to a national law incorporating the Vienna Convention. For instance, arbitrators have referred to the rule of conflict contained in The Hague Convention on the Law Applicable to International Sales of Goods of 15 June 1955 because it was in force in each of the States where the parties had their places of business.21 In such case, the law of the country where the seller has its place of business is to be considered applicable, and the Vienna Convention will apply if it has been adopted by that country.

21. Arbitrators sometimes apply an international convention on conflicts of laws that designates the Vienna Convention, not on the basis of the private international law in force in the countries where the parties have their places of business, but simply because it is appropriate to do so. For instance, the Rome Convention of 19 June 1980 on the Law Applicable to Contractual Obligations was applied by an arbitral tribunal as the connecting factors it contains were regarded as reasonable and widely accepted in the international community.22 Article 4(1) of the Rome Convention states [Page48:] that the governing law is that with which the contract is most closely connected and Article 4(2) that this law is presumed to be that of the country where the party that is required to perform the characteristic obligation of the contract has its domicile.

22. Sometimes arbitrators do not refer to an international convention on conflicts of law, but instead directly choose a connecting factor that leads to the law of a Contracting State. The connecting factor might, for instance, be the place where the goods are delivered. Thus, in a case where the sales were specified to be 'Ex Works', as defined in the Incoterms, with delivery at the seller's place of business in Italy, the arbitral tribunal designated Italian law as the law governing the sales contract.23 Consequently, the Vienna Convention was applicable, as Italy is a party to the Convention. Alternatively, the connecting factor might be the country with which the contract is most closely connected, as used in the Rome Convention. For instance, an arbitral tribunal designated the law of Romania (a Contracting State) on the grounds that this was the country with which the contract had 'the closest connection'.24

b) Place of business of the parties

23. Article 1.1(a) of the Vienna Convention provides that the Convention applies when parties have their places of business in different Contracting States. Can arbitrators apply the Convention on the basis of this connecting factor, without reference to the national law applicable to the contract? The answer is undoubtedly yes, for in such a case the Convention is part of the law of both seller and buyer and thus has a very close connection with the contract.25 An arbitrator must be sure, however, to check that the States in question have not made any reservations over the provisions of the Convention that are concerned by the dispute.

24. There are many awards referring in this way to Article 1.1(a) of the Convention.26 An arbitral tribunal held, for instance, that: 'Pursuant to Art. 1(1) a) of the Convention, the Convention regulates contracts on sale of goods between parties who have their places of business in different countries, if these countries are signatories to the Convention. Romania (where the Claimant has residence) as well as Italy (where the Defendant has residence) are signatories to the Convention.'27

B. Direct application of the Convention

25. The approach adopted by arbitral tribunals under the former ICC Rules of Arbitration is understandable, as these referred to use of an appropriate rule of conflict. However, this approach has become redundant under the current Rules, which allow arbitral tribunals to seek directly the rules of law they deem to be appropriate. This change is quite natural and in keeping with the autonomous nature of arbitration. As arbitrators do not have a system of conflict of laws and their awards are not subject to review on the merits, they have freedom in determining the applicable rules of law.

26. This freedom may lead arbitral tribunals to apply or exclude the Convention, without any review by State courts. However, there are limits to the exercise of such freedom. For instance, it would be unacceptable for an arbitral tribunal not to apply the Convention when its application is clearly justified, for example when both parties [Page49:] have their places of business in Contracting States. It would be equally strange if an arbitral tribunal were to extend the application of the Convention to areas in which it is explicitly stated that it does not apply, such as sales of stocks and shares, unless the parties have clearly expressed a wish for this. On the other hand, it should conceivably be possible to extend the application of the Convention to trade cooperation agreements, such as distribution agreements, that are closely linked to sales falling within the substantive scope of the Convention.28 Likewise, there should be no reason to criticize an arbitral tribunal for applying the Convention in cases where a State court would not have applied it on account of the parties' not having their places of business in Contracting States. Arbitral tribunals should at all times be guided by the legitimate expectations of the parties: it is important to avoid the unexpected application of rules of law that the parties could not reasonably have foreseen.

27. On what grounds may the Vienna Convention be applied when it has not been chosen by the parties and they do not have their places of business in Contracting States? Some arbitrators have considered it necessary for the dispute to be governed by general principles of international trade law, as these are reflected in the Vienna Convention.29 There has also been a case in which the arbitral tribunal used the Vienna Convention to back up the solution it arrived at by applying domestic law: although at the time the Convention was not applicable in the States concerned, the arbitral tribunal regarded it as having 'universal' value due to the large number of signatory States.30

In another case, the arbitral tribunal noted that the 1998 ICC Rules of Arbitration allowed it to designate the applicable rules of law without using a rule of conflict and held that: 'The 1980 United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention) enjoys a strong recognition in the arbitration practice as a set of rules reflecting the evolution of international law in the field of international sale of goods.'31

28. There are various lessons to be learned from these awards. Firstly, even when an arbitral tribunal does not use a rule of conflict, it makes sure that the international instrument it wishes to apply is substantively applicable to the dispute. In the above-mentioned case, for instance, the arbitral tribunal went to the length of stating that: 'No party has ever contested that the dispute subject to the present arbitration relates to the execution of a contract for the sale of goods. . . . None of the exceptions provided for by articles 2 and 3 of the Vienna Convention apply in the present case.'32 This approach is to be commended for two reasons: (i) applying the Convention outside its substantive scope could take the parties by surprise; (ii) the Convention can claim to reflect generally accepted practices only in the substantive field to which it applies. However, as already noted, an exception should be made for trade cooperation agreements linked to sales transactions that come within the scope of the Convention: in such cases, it is conceivable that an arbitral tribunal could apply the Convention if this appears to be the intention implicitly or explicitly expressed by the parties, although the tribunal would not be bound by any solutions adopted by State courts.

29. Secondly, it is interesting to note that arbitrators appear to attach great importance to the fact that the Vienna Convention has been adopted by a large number of States. This they see as a reflection of the authority generally ascribed to the rules it contains. [Page50:] Once again, this attitude is to be commended, for it is important not to thwart the legitimate expectations of the parties by applying to their contract an international instrument that does not enjoy a minimum of international recognition.

30. At a more general level, a tendency can be seen amongst arbitrators to liken general principles of law to international trade usages. There is no doubting that the rules laid down by an international convention as widely adopted as the Vienna Convention can be described as general principles of international sales law. But does this justify calling them usages? Such a view, which implies including the Vienna Convention within a broad conception of lex mercatoria, is espoused by various writers and can be seen in many awards.33

As an example, an arbitral tribunal applied the Convention on the basis of the following reasoning: 'the arbitral tribunal finds that it shall decide the present case by applying to the Contracts entered into between the Parties trade usages and generally accepted principles of international trade. In particular, the Arbitral Tribunal shall refer, when required by the circumstances, to the provisions of the 1980 Vienna Convention on Contracts for the International Sale of Goods (Vienna Sales Convention) or to the Principles of International Commercial Contracts enacted by UNIDROIT, as evidencing admitted practices under international trade law.'34

31. As has been rightly pointed out by Emmanuel Gaillard,35 the real practical issue raised by such reasoning is that a broad conception of usages allows an arbitral tribunal to temper the parties' choice of a State law when the arbitration rules or the procedural law to which they have submitted require the tribunal to take account of trade usages 'in all cases'.36 By including the Vienna Convention within the concept of trade usages, it becomes possible to apply the Convention even when parties have chosen the national law of a non-Contracting State.

32. Although this possibility has been criticized,<footnotre_37> it should not be ruled out altogether. Whilst arbitrators must certainly be highly respectful of the choice of law expressed by the parties, there are circumstances in which this might lead to a very unfair result. There is nothing wrong in allowing an arbitrator to correct such a result in exceptional cases. It may also have escaped the parties that a particular provision specific to the national law chosen by them- which law is often unfamiliar to them, especially when they wished to designate a 'neutral' law-would render a toughly negotiated contractual provision null and void. Clauses limiting liability 38 and the rules relating to sellers' warranties 39 are good examples of such situations. In this case, it is sometimes necessary for arbitrators to be able to weigh the interests involved and give the contract precedence over the law designated by the contract. They may achieve this by applying as trade usages convention rules that uphold a contract rather than the rules of a national law that make it invalid. Although the Vienna Convention does not cover questions relating to the validity of the contract, whenever it is applicable it will override any rule that would render the contract null and void.40 Arbitrators will in such case need to take into account the interests which the provisions in question (national law, international convention) were intended to protect, the seriousness of the contractual breaches at stake, and all the other circumstances of the case.

1
This article is based on a paper presented at a colloquium organized by the ICC Institute of World Business Law on 20 June 2005 to mark the 25th anniversary of the Convention.

2
ICC case 7153 (1992), J.D.I. 1992.1006 (Annot. D. Hascher); ICC case 6653 (1993), J.D.I. 1993.1040 (Annot. J.-J. Arnaldez); ICC case 8324 (1995), J.D.I. 1996.1019 (Annot. D. Hascher); ICC case 8855 (1997), J.D.I. 2000.1070 (Annot. J.-J. Arnaldez); ICC case 8908 (1998), (1999) 10:2 ICC ICArb. Bull. 83; ICC case 9083 (1999), (2000) 11:2 ICC ICArb. Bull. 78: 'The United Nations sales law (CISG) . . . itself constitutes substantive law . . .'; ICC case 9187 (1999), (2000) 11:2 ICC ICArb. Bull. 93: 'The parties agreed in Art. 14 of the contract that "the proper law of the Contract is the law of Switzerland". The parties do not agree on whether this clause includes the United Nations Convention on Contracts for the International Sale of Goods ("CISG"); while Claimant answers this question to the positive, Defendant argues that Art. 14 of the Contract should be interpreted to mean that only Swiss domestic law, particularly the CO, applies. As a rule, Swiss law encompasses every international convention to which Switzerland is a party. Since Switzerland is a party to the CISG, the latter, consequently, is a part of Swiss law.'; ICC case 9448 (1999), (2000) 11:2 ICC ICArb. Bull. 103: 'The United Nations Convention on Contracts for the International Sale of Goods . . . forms part of Swiss substantive law.'

3
ICC case 7645 (1995), 11:2 ICC ICArb. Bull. 34 at 35: 'According to art. 1 subpar. 1) b) the Convention applies to contracts of sale of goods between parties whose places of business are in different states when the rules of private international law lead to the application of the law of a contracting state […] As it already has been seen, the choice of Austrian law by the parties as governing law of the contract is to be regarded as being valid and binding on them. By this reference to Austrian law, the Vienna Convention became, based on the just discussed clause, applicable to the contractual relationship between the parties.' A similar line of reasoning was taken in ICC case 7754 (1995), (2000) 11:2 ICC ICArb. Bull. 46 at 47: 'Under Article 1.1 of the CISG, the Convention applies: "(…) (b) when the rules of private international law lead to the application of the law of a Contracting State". Under the present circumstances, one can say that French law is designated by a rule of private international law, that of "party autonomy" . . .'

4
ICC case 9083 (1999), (2000) 11:2 ICC ICArb. Bull. 78: 'The United Nations sales law (CISG) (not excluded in the present case) itself constitutes substantive law, unless excluded by the parties (Art. 6).'

5
ICC case 10849 (2000), unpublished.

6
ICC case 8482 (1996), (2000) 11:2 ICC ICArb. Bull. 56.

7
In ICC case 7565 (1994), (1995) 6:2 ICC ICArb. Bull. 64 at 65, the arbitrators replied as follows to the argument that the neutrality requirement expressed by the parties through their choice of Swiss law ruled out the application of the Convention: 'Certainly in incorporating the Convention's provisions such as to make it part of Swiss law so far as international sales of goods are concerned, Switzerland has rather increased than decreased the degree of neutrality the parties are suggested to have sought in the present circumstances.'

8
ICC case 7754 (1995), (2000) 11:2 ICC ICArb. 46 at 47: 'It is the opinion of the Tribunal that when the parties initially referred to "French law" in the contract, what they had in mind was the domestic law of France; and such view is confirmed by the wording of the above mentioned Article of the Terms of Reference, designating "the substantive law of France".'

9
On the treatment of procedural agreements by the French courts, see. M.-N. Jobard-Bachellier, 'La répartition des tâches entre juge et parties dans l'établissement du contenu de la loi étrangère. Bilan de la jurisprudence de la Cour de cassation (2002/1er trimestre 2003)', Gaz. Pal., 25-26 June 2003, 1625.

10
ICC case 8453 (1995), (2000) 11:2 ICC ICArb. Bull. 55: 'It is also undisputed that the contract is subject to French law (art. 16 of the Contract). Both parties referred in their memorials and pleadings to the legal provisions applicable to sale contracts (art. 1582 et seq. of the French Civil Code). None of the parties referred to the UN Convention of 1980 on the International Sale of Goods (Vienna Convention) which is therefore considered as non applicable.'

11
ICC case 8769 (1996), (2000) 11:2 ICC ICArb. Bull. 69: 'Article XXIV of the Contract for Manufacture and Article 22 of the Toolings Agreement both provide that "the arbitrator will interpret the contract and settle the dispute in accordance with French law and suppletorily with the United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on 11 April 1980".'

12
'This is somewhat confusing because in French law international sales […] are principally, not just suppletorily, governed by the Vienna Convention. As the Sole Arbitrator understands the clause, the parties meant that the international sales law aspects should be governed by the Vienna Convention. Other aspects, such as construction law or mandate aspects, should be governed by general French law. To the extent, however, that French law is silent, the Vienna Convention would fill the gaps.' Ibid.

13
See e.g. ICC case 8213 (1995), (2000) 11:2 ICC ICArb. Bull. 49.

14
ICC case 8740 (1996), (2000) 11:2 ICC ICArb. Bull. 64.

15
P. Lagarde, Case Comment on Cass. com. 4 February 1992, Rev. crit. dr. internat. privé 1992.495.

16
P. Mayer, 'L'application par l'arbitre des conventions internationales de droit privé' in L'internationalisation du droit. Mélanges en l'honneur d'Yvon Loussouarn (Paris: Dalloz, 1994) 275.

17
ICC case 7585 (1994), (1995) 6:2 ICC ICArb. Bull. 60, J.D.I. 1995.1020 (Annot. Y. Derains). With regard to this award, see also H. Muir Watt, 'L'applicabilité de la Convention des Nations unies sur les contrats de vente internationale de marchandises devant l'arbitre international' RDAI/IBLJ 1996/3, 401.

18
Y. Derains, supra note 17.

19
Article 13(3) of the 1988 ICC Rules of Arbitration read as follows: 'In the absence of any indication by the parties as to the applicable law, the arbitrator shall apply the law designated as the proper law by the rule of conflict which he deems appropriate.'

20
Article 17(1) of the 1998 ICC Rules of Arbitration reads as follows: 'In the absence of any such agreement, the Arbitral Tribunal shall apply the rules of law which it determines to be appropriate.'

21
ICC case 7585 (1994), (1995) 6:2 ICC ICArb. Bull. 60, J.D.I. 1995.1020 (Annot. Y. Derains).

22
ICC case 7205 (1993), J.D.I. 1995.1031 at 1032 (Annot. J.J. Arnaldez); see also ICC case 8908 (1998), (1999) 10:2 ICC ICArb. Bull. 83.

23
ICC case 8716 (1997), (2000) 11:2 ICC ICArb. Bull. 61 at 63: 'it must be noted that the parties have clearly agreed on an international sale of goods, in which they refer to the "Ex Work" [I]ncoterm. The choice of the "Ex Work" [I]ncoterm expresses a localisation of the performance of the contract at the place where the seller is established, namely in Italy. Therefore, it cannot exceed the parties['] expectations to refer to the rules applicable to the international sales of good[s] in Italy, in order to rule on the present dispute. The Vienna Convention being ratified in Italy, it is therefore decided to apply it where the parties['] agreement does not provide for any solution, in respect of the present disputes.'

24
ICC case 8247 (1996), (2000) 11:2 ICC ICArb. Bull. 53: 'In order to properly frame the case, the first issue to be resolved is that of the substantive law applicable to the Contract. Such law appears to be the substantive law of Romania, with which the Contract has the closest connection.'

25
See e.g. P. Mayer, supra note 16.

26
ICC case 7153 (1992), J.D.I. 1992.1006 (Annot. D. Hascher); ICC case 7331 (1994), (1995) 6:2 ICC ICArb. Bull. 73 and J.D.I 1995.1001 (Annot. D. Hascher); ICC case 7531 (1994), (1995) 6:2 ICC ICArb. Bull. 67; ICC case 7844 (1994), (1995) 6:2 ICC ICArb. Bull. 72.

27
ICC case 8962 (1997), (2000) 11:2 ICC ICArb. Bull. 76.

28
As, for instance, in ICC case 11849, unpublished.

29
ICC case 7331 (1994), (1995) ICC ICArb. Bull. 73 at 74-75 and J.D.I. 1995.1001 (Annot. D. Hascher): 'general principles of international commercial practice, including the principle of good faith, should govern the dispute. The Tribunal believes that for the present dispute, such principles and accepted usages are most aptly contained in the United Nations Convention on Contracts for the International Sale of Goods . . .' The arbitral tribunal nonetheless felt the need to back up the solution by reference to the rule of conflict in Article 1.1(a)-'Applying the Vienna Convention to the present dispute is all the more appropriate since Yugoslavia and Italy are signatories to such convention'-which is explained by the fact that the arbitration was subject to the 1988 ICC Rules of Arbitration.

30
ICC case 6281 (1989), J.J. Arnaldez, Y. Derains, D. Hascher, Collection of ICC Arbitral Awards 1991-1995 (The Hague: Kluwer Law International, 1997) 409 and J.D.I. 1991.1054 (Annot. D. Hascher).

31
ICC case 9887 (1998), (2000) 11:2 ICC ICArb. Bull. 109 at 110.

32
ICC case 9887 (1998), ibid.

33
See the authorities mentioned by E. Gaillard, 'La distinction des principes généraux du droit et des usages du commerce international' in Etudes offertes à Pierre Bellet (Paris: Litec, 1991) 203, and the references cited on pp. 207-209.

34
ICC case 8501, J.D.I. 2001.1164 (Annot. E. Jolivet).

35
E. Gaillard, supra note 33 at 210-211.

36
e.g. Art. 28 of the UNCITRAL Model Law on International Commercial Arbitration, Art. 1496 of the French Nouveau Code de procédure civile, and Art. 17 of the ICC Rules of Arbitration.

37
E. Gaillard, supra note 33.

38
See E. Jolivet, 'Les clauses limitatives et élusives de responsabilité dans l'arbitrage CCI', Gaz. Pal., Cahiers de l'arbitrage, 2005/1 (27-28 April 2005) 22.

39
See V. Heuzé, La vente internationale de marchandises : Droit uniforme (Paris : LGDJ, 2000) at 246ff.

40
V. Heuzé, ibid. at 248-249, writes as follows on the dualism of the seller's warranty under French law : 'The Vienna Convention avoids these difficulties by providing for a single means of recourse by the buyer in the event of the non-conformity of the goods delivered. But this great advantage of the CISG would be seriously undermined if the parties were allowed to bring actions for annulment under the lex contractus, on the pretext that the CISG does not cover questions concerning the validity of the contract. This is why we believe that whenever the buyer's claims are of the kind that Articles 35 and following of the Vienna Convention are intended to satisfy, the latter provisions alone should be applied, and thus any rule of domestic origin should be excluded.'