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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
1. What degree of freedom does the arbitrator enjoy when he determines the law that he will apply to the merits of the dispute? This is a question that could not arise in antiquity, because the early conception of arbitration considered it as going hand in hand with equity. Aristotle considered that "the arbitrator aims at achieving equity, the judge at applying the law". But this has ceased to be true. A new kind or arbitration, based on law, has emerged, as part of which the arbitrator is supposed to apply the rules of law laid down by the legislator. 'Amiable composition' (i.e. arbitration based on equity) has become the exception and arbitration statutes treat it as such, sometimes even ignoring it.
In international arbitration, by definition, the laws of at least two, and sometimes several, countries are potentially applicable. A choice has to be made. A judge, if he were to rule on the dispute, would find himself in the comfortable situation of enjoying no freedom at all. He would apply his own conflict of laws rule. That rule would direct him to apply the law chosen by the parties, provided that the parties' choice meets certain conditions, expressed in the conflict of laws rule. In the absence of a choice by the parties, the conflict of laws rule would itself designate the applicable law by reference to a connecting factor. In both cases, the process is entirely mandatory: the judge is first under a duty to apply the conflict of laws rule, and then he is under a duty to apply the law determined in accordance with that rule.
The arbitrator's position is different. He owes no duty of obedience to anyone. Nobody dictates to him how he must reason. Being free is inherent to his position. He is the one who decides what the applicable law will be.
2. The question nevertheless arise, as to the scope of this freedom. We will see that there are a few restraints on the arbitrator's exercise of his freedom (I). But it is nevertheless so vast that it is necessary to describe the various uses which he makes of it (II), before trying to find out whether some directives may be established (III).
I. The Scope of the Arbitrator's Freedom
3. Since the arbitrator's freedom in determining the laws or rules of law applicable to the merits is the principle, the relevant question must be: where do constraints or limits on the exercise of such freedom come from?
A) is the Arbitrator's Freedom Excluded by an Agreement of the Parties on an Applicable Law?
4. The assertion that the arbitrator must apply the law chosen by the parties is accurate, but there are two nuances.
5. The arbitrator is bound to apply the law chosen by the parties to the merits of a dispute where the parties have expressly specified that law in the contract binding them to the arbitrator. In such cases, the arbitrator is obliged to apply that law. This is not a consequence of the principle of party autonomy. Rather, it is a consequence of the pacta sunt servanda principle. In their contract, the arbitrator and the parties have agreed that the arbitrator will apply a mutually agreed upon law.
This situation is not the most common one. It arises where the parties and the arbitrator sign terms of reference, a characteristic step in the procedure under the ICC Rules of Arbitration. Under French law, if the arbitrator subsequently applies a law different from that which was agreed upon in the terms of reference, the arbitrator's award could either be annulled or unrecognized for failure to conform to the mission of the arbitrator (Article 1520(3) of the French Code of Civil Procedure).
6. By contrast, when the choice of law clause is contained in the contract, and its scope or validity is being challenged by one of the parties to the arbitration, it is the arbitrator who will decide on the issue, and he may well find that the choice of law clause is null or inapplicable. His decision on this issue is final. It will not be reviewed by state courts.
7. Similarly, where there is no express choice of law clause and one of the parties alleges that a tacit choice of law "results from the terms of the contract or the circumstances of the case", to paraphrase the Rome Regulation on the law applicable to contractual obligations (Rome I Regulation), the arbitrator is free to decide whether such a choice exists or not.
B) Is the Arbitrator's Freedom Limited by the Conflict of Laws Rules of the Seat of Arbitration?
8. The arbitrator's freedom is denied by a theory, sometimes called 'territorialism', that the Institute of International Law adopted in a resolution passed in Neuchâtel in 1959. Pursuant to this resolution, "the connecting rules in force in the State where the seat of the arbitral tribunal is located should apply to determine the law applicable to the merits."
9. In his well-known article Lex facit arbitrum, F.A. Mann developed the arguments that, in his view, justified this solution.1 The first argument is based on the territorial power of the state of the seat:
"Whatever the intentions of the parties may be, the legislative and judicial authorities of the seat control the tribunal's existence, composition and activities. It is primarily the law of the seat that decides whether and on what conditions arbitration is permitted at all. No country other than that of the seat has such complete and effective control over the arbitral tribunal."2
The second argument equates the arbitrator with a judge: "[t]here is a pronounced similarity between the national judge and the arbitrator in that both of them are subject to the local sovereign."3 In response to Berthold goldman's argument according to which arbitration cannot be "assimilated to the function of the public service of the judiciary in the State where it is geographically located",4 Mann asserted: "Is it not for such State to say whether and in what manner arbitrators are assimilated to judges and, like them, subject to the law?"5
10. even though Mann's arguments may still have some seductive power in common law countries, they are not convincing. While it is true that the state of the seat of arbitration has the power to impose compliance with its rules - whether those rules are procedural, conflict of laws rules or rules relating to the arbitration agreement - and even has the power to prohibit all arbitration in its territory, this does not necessarily mean that a state wants to use that power. In fact, most often, it does not. As for the assimilation of the arbitrator with a judge, it has some foundation in that both perform a jurisdictional function. However, contrary to judgments, arbitral awards are not enforceable as such; they express nothing more than an intellectual point of view. An arbitrator is not a representative of a sovereign power rendering justice. While it is true that an arbitral award is intended to be enforced, it is the authority that exercises sovereign power, in other words the judge, who grants enforcement after performing a control. Mann's response to goldman is only a pirouette. one fails to see why a state would purposefully equate an arbitrator with a judge, as an arbitrator is not a judge.
Today, it is no longer considered that an arbitrator has an obligation to apply the conflict of laws rules of the seat.
11. While it is certain that an arbitrator is under no obligation to apply the ordinary conflict of laws rules of the seat, one may ask whether the situation is the same regarding conflict of laws rules specifically enacted, in a given country, for arbitrators sitting in that country.
12. Such a rule exists, for example, under Swiss law. Indeed, Article 187 of the Swiss Private International Law Act (PIL) states that "in the absence of a choice of law, the arbitral tribunal shall decide according to the rules of law which have the closest connection with the case". This provision applies to all arbitrations whose seat is in Switzerland (Article 176(3) of the PIL). Article 187 of the PIL is sufficiently vague so as not to seriously limit the arbitrator's freedom. Nevertheless, in a dispute concerning a real estate construction contract, for example, an arbitrator who wishes to apply the conflict of laws rules contained in the Rome I Regulation would probably be prevented from doing so, since the regulation would lead to the application of the law of the contractor, while the country where the construction takes place is the law with the closest connection to the case.
In my view, what leaves the freedom of the arbitrator intact is that a violation of Article 187 of the PIL is not sanctioned. Such violation does not fall within any of the grounds for annulment cases provided by Article 190 of the PIL. In my opinion, there is no legal obligation, and therefore no limit on the freedom of the arbitrator in the absence of a sanction affecting either the arbitrator or the award.
C) is the arbitrator's freedom limited by the obligation to apply pre-existing Conflict of laws rules?
13. Such an obligation is set out in laws deriving from the UNCITRAL Model Law (Model Law) on international arbitration.
Under Article 28(2) of the Model Law, "failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable". Three ways of reasoning appear to be excluded by this provision. First, an arbitrator is not allowed to determine the applicable law through connecting factors that he would determine by himself. Second, he may not take into consideration, when making his choice, the contents of the respective laws in conflict. Third, he must necessarily apply a national law, as opposed to the UNIDRoIT Principles or the lex mercatoria.
An arbitrator who disregards this provision does not put his award at risk, given the absence, in the Model Law system, of control by state courts of the reasoning leading to the determination of the applicable law. This is not true, however, when the seat is in england, given that, pursuant to Article 69 of the 1996 Arbitration Act, a party may appeal on the basis of a point of law.
14. I do not mean to say that, in the absence of a risk of annulment, an arbitrator would legitimately ignore such provisions. These are simply concerns, among others, that an arbitrator must consider in order to make the best use of his freedom. This is the issue to which we must now turn.
II. The Arbitrators' use of Their Freedom
15. In his Hague Lectures of 1963, Berthold goldman predicted, albeit cautiously, the following: "International practice does not lead one to consider that a private international law of international arbitration specific to this institution and independent from national laws is a hypothesis or a reverie."6 Nearly half a century later, this hypothesis has not become a reality. The reality is that, except for the general principle that an arbitrator should normally apply the law chosen by the parties, no conflict of laws rule generally applied in international arbitration has emerged, not even a general method for the determination of the applicable law.
16. I will address the various methods used by arbitrators to determine the law applicable to the merits of a dispute (A) before examining why these methods coexist and are often combined (B).
A) The Various Methods Used by Arbitrators to Determine the Law Applicable to the Merits of a Dispute
17. I will present the various methods chronologically, namely in the order in which they appeared in the practice of arbitration. These methods have accumulated over the years. The older methods have not given way to the newer methods.
18. The application of the conflict of laws rules of the seat is the oldest method and has not disappeared through the years. even though, as stated above, the conflict of laws rules of the seat are not binding on the arbitrator, an arbitrator may refer to them, especially if the country of the seat has enacted conflict of laws rules specifically applicable in international arbitration proceedings.7
19. The cumulative application method is frequently used. The arbitrator will look at the conflict of laws rules of the countries with which the dispute has substantial connections in order to determine whether they converge and designate the same applicable law. If they do, that designated law will be applicable to the merits of the dispute. Note that it is not necessary that the conflict of laws rules that he has consulted be identical: two different conflict of laws rules can converge in casu.
The cumulative application method has substantial merit. It prevents arbitrary decisions and respects the equality of the parties so long as the conflict of laws rules of the claimant's establishment and those of the respondent's establishment are among the rules taken into consideration.
Is it necessary to take into consideration the rules of other countries, such as the country of the seat or the country of the performance of the contract? When the arbitrator notices that such rules also converge, he will mention in his decision or award that they do in order to strengthen his choice of applicable law. However, it is not necessary that the conflict of laws rules converge, and it is therefore not necessary to research their content. A convergence of conflict of laws rules of the countries where the parties are established is sufficient to justify the solution. This solution should, in any event, prevail over a potential divergence from the ordinary conflict of laws rules of the seat.8
When all of the parties are established in member states of the european Union, the cumulative application method leads to the application of the conflict of laws rules of the Rome I Regulation, because such rules are common to all member states.
20. This solution is respectful of positive law but at the same time allows the arbitrator to exercise broad freedom as to which law to apply. Among these general principles is the principle designating the law 'most closely connected' to the contract. However, this principle is vague, and its application requires determining more significant factors. For instance, the Rome Convention of 1980 on the law applicable to contractual obligations (Rome Convention, now replaced by the Rome I Regulation) was deemed to reflect those general principles. The Rome Convention referred to the law with the closest connection to the contract (Article 4 § 1) and presumed - except for rare exceptions - that the habitual residence of the party that performs the main obligation under the contract is the one with the closest connection to the contract (Article 4 § 2). yet, the arbitrator could just as easily decide that the place of the performance of the contract is more revealing of a close connection. This criterion has been applied in several awards.9
21 The arbitrator may also choose to apply a conflict of laws rule contained in an international convention or in a european regulation - in practice the Rome I Regulation. This solution is tempting because a rule adopted at a supranational level may seem better suited to international disputes than a rule adopted by one state, which may differ from a rule adopted by another state. Moreover, both the Rome Convention and the Rome I Regulation are the fruits of a wide consensus, which reinforces their Authority.
In the past, this solution was frequently adopted, notably to the benefit of the Rome Convention or the Hague Convention of 1955 on the law applicable to the international sale of goods. The Rome I Regulation will likely have the same success as the Rome Convention.
22. one may even question whether the application of the Rome I Regulation has become mandatory when the arbitrator sits in a european Union state and all of the parties are nationals of european Union states. Personally, I do not think so. Treaties and european regulations are binding on states. Consequently, the conflict of laws rules contained therein are only binding on judges of those states. As the arbitrator does not represent any state, the arbitrator is not subject to any obligation resulting from a european regulation. However, the - optional - method of cumulative application naturally leads the arbitrator to apply the Rome I Regulation in the above-mentioned situations.
23. Which conflict of laws rules apply when one of the parties is established in a member state of the european Union while the other is not and when the conflict of laws rules of the Rome I Regulation and those of the non-european state do not converge? I would not apply the Rome I Regulation on the basis of its more general application or its supranational source, or even on the basis of the consensus that it reflects. This solution would be unfair. It would mean that when a party established in the european Union enters into a contract with a party that is established in a non-member state (for example, an American party), the conflict of laws rules of the european party would systematically be preferred over the conflict of laws rules of the other party.10
Paradoxically, it is more justified to apply the Rome I Regulation as a written solution resulting from a wide consensus when none of the parties are established in the european Union. Arbitral jurisprudence provides some examples.11
24. In the methods previously described, the arbitrator applies one or more pre-existing conflict of laws rules. As stated above, in some countries, the arbitrator is, in theory, under an obligation to apply such rules. However, there are no negative consequences for not doing so.
In other countries, the arbitrator is expressly exempted from any obligation to apply conflict of laws rules. As an example, under Article 1496 of the French Code of Civil Procedure, in the absence of a choice of law by the parties, the arbitrator "shall decide the dispute pursuant to the rules of law that he deems to be appropriate". This formulation is reproduced in the Spanish Arbitration Act (Article 34 § 2) and in numerous arbitration rules. For instance, Article 17 of the ICC Rules and Article 22 of the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce reflect a provision similar to that of Article 1496 of the French Code of Civil Procedure. During their 2010 revision, the UNCITRAL Arbitration Rules were notably modified to this end. Former Article 33 § 1 reflected Article 28 of the Model Law, while the new Article 35 § 1 provides that "failing […] designation by the parties [the arbitrator] shall apply the law which he deems appropriate".
The 'voie directe' (direct choice method), whereby the arbitrator simply chooses a law without referring to any conflict of laws rule is accordingly allowed in these countries. Under the direct choice method, the arbitrator applies his own reasoning to designate the law that he determines to be most appropriate. This is not to say that the arbitrator is exempt from justifying his choice of law. He is not. He may justify his choice of law by identifying connections between the chosen law and the contract,12 by ascertaining the expectations of the parties or by taking into account the respective content of the conflicting law.13
25. It is no surprise that arbitrators, noting the absence of success of both the lex mercatoria (which has never been designated as such, but which one could refer to as the 'law of international trade' or 'universally recognized legal principles') and the UNIDRoIT Principles in contractual practice, rarely find them to be the lex contractus, failing an agreement of the parties.
The decline of the lex mercatoria is obvious, as arbitrators rarely refer to it. The competition exercised by the UNIDRoIT Principles - in which it does not seem possible to see an expression of the lex mercatoria defined as the law spontaneously created by the society of users of international trade - was fatal to the lex mercatoria.14 When one has decided not to apply a national law, it is more tempting to refer to a collection of well-drafted and rationally presented written rules, than to principles that can only be ascertained through a long, uncertain and costly comparative law investigation
The number of awards that refer to the UNIDRoIT Principles, in situations where they had not been chosen by the parties, is relatively high. In a 2008 study of the period between 2002 and 2004, emmanuel Jolivet noted that 54 out of 980 awards 'mentioned' these principles.15 In most of the cases, however, one of the parties had invoked the UNIDRoIT Principles without the arbitrator actually following them, or reference was made to the UNIDRoIT Principles to strengthen the arbitrator's decision based on the application of a state law. Among the awards that either exclusively or principally applied the UNIDRoIT Principles, it is necessary to distinguish between those that consider the UNIDRoIT Principles to be the lex contractus from those - representing the large majority - that specifically apply one article from the UNIDRoIT Principles because the content of the applicable national law is not clear or seems particularly ill-adapted on a particular point.16 As an example, Article 7.4.9 of the UNIDRoIT Principles is frequently applied, as it allows one to determine the rate of interest for late payment in a much more satisfactory way than by applying a legal rate adopted by the national legislator, who only considers domestic situations.
B) The Use of Their Freedom by Arbitrators
26. Arbitral case law does not show a preference for one of the various methods mentioned above. Arbitral tribunals may apply any of them, and often use two or more converging methods in a single award.
27. An arbitral award rendered in 200117 provides a caricature of this syncretism. The dispute arose from a licensing contract between a French company and an Italian company, and the seat of the arbitration was in geneva. The arbitral tribunal began by declaring that, pursuant to Article 187 of the PIL, and failing any choice of law by the parties, the arbitrator should apply the law that he determined to be most closely connected with the case. The tribunal, considering that it had a choice among several methods, decided to reject the direct choice method since it risked inciting arbitrators to fail to justify their reasoning. The application of already existing conflict of laws rules remained possible. The arbitral tribunal identified such rules "through the so-called general principles of private international law method". However, in order to put forward such principles, the tribunal "relied on the Rome Convention of 1980 because both Italy and France are parties to the Convention".
It thus appears that the tribunal first turned to the conflict of laws rules of the seat, which provided it with vague guidance. The tribunal then turned towards the application of general principles of private international law, and eventually applied the Rome Convention, which supposedly expresses such principles but, most importantly, was designated by the cumulative method. Thus, the only method that was excluded was the direct choice method.
Under this line of reasoning, the various methods follow each other; as one fades away, the next one emerges and so on. More often, however, and more convincingly, the methods are all simultaneously used in so much as they converge. For example, in an ICC award rendered in 1992, the arbitral tribunal used the cumulative application method, which led it to apply Irish law. It noted that Irish law was that which had the closest connection to the contract and was also the law of the place where the main obligations of the contract were performed.18
28. Although it is impossible to systematize the approach adopted by arbitrators, it is nonetheless possible to highlight the principal considerations that guide their reasoning.
The most general of these considerations is that, ultimately, the arbitrators' choice of law must appear neither partial nor arbitrary. In particular, when the outcome of the case differs depending on which law is applied, it is essential that arbitrators not be suspected of having chosen the law applicable to the dispute according to the expected result of its application.
This consideration does not lead the arbitrators to always choose the same method. Depending on the circumstances of each case, the method that appears to be the most solidly grounded will vary. The arbitrator can, for instance, rely on the fact that the conflict of laws rules of the parties' respective places of establishment converge. If the arbitrator also finds that the conflict of laws rules of the forum converge with these rules, he will note this point as well. By contrast, and in the absence of such convergence, the arbitrator may use the direct choice method. However, as the direct choice method is an expression of the arbitrator's own will, it may well run the risk of appearing arbitrary. He must therefore substantiate his choice of law with reasons, which, depending on the case, could put forward subjective or objective factors. The use of the direct choice method can also be strengthened through reliance on general principles or international conventions. If it is possible to find sufficiently convincing evidence of the intentions or beliefs of the parties that a particular law applies, the arbitrator may neglect less determinative objective factors. If this is not possible, the theory of the closest connection will be invoked. Applying the law that has the closest connection with the case - as provided by the Swiss rule applicable to international arbitrations having their seat in Switzerland - will carry more weight than uncertain indications of the parties' expectations as to the applicable law.
In sum, the arbitrator does not blindly apply a predetermined method to the choice of law issue. When determining which method he will use, he will examine the circumstances and also the conflict of laws rules that are a priori potentially applicable.
29. When it is possible to reasonably ascertain the parties' expectations, these should be taken into account, as this ensures the respect of the parties' expectations and is in harmony with the contractual origin of the arbitrators' powers. It also excludes any suspicion of arbitrariness.19
It is often the case that ascertaining the parties' expectations is of no help, because they are identified, based on the very circumstances that the arbitrator should take into consideration in determining the applicable law. However, in some situations, the parties' expectations are revealed by declarations or behaviour that the arbitrator can invoke directly. Memorials exchanged throughout the arbitral proceedings can be used to identify the parties' expectation that a given law applies to the merits of the dispute. The parties may also have agreed on a conflict of laws rule, rather than on a substantive law. In such a case, the arbitrator will have to take such an agreement into consideration.20
30. In order to support the basis for their choice of law as strongly as possible, arbitrators have a tendency to strengthen their reasoning with as many converging arguments as possible, for example by reinforcing the application of the conflict of laws rule of the seat through its convergence with the conflict of laws rule contained in a treaty or by applying the direct choice method while making sure that the law deemed applicable corresponds to the law that the conflict of laws rule of the countries concerned would designate.21
31. As a consequence, it is difficult for an arbitrator who uses the direct choice method to adopt the dualist position of the Rome Convention and the Rome I Regulation. This dualism dictates that no subjective factors - revealed by the provisions of the contract or the circumstances of the case - be taken into consideration when they do not allow one to conclude with certainty that a choice of law was consciously made. This is a choice made by the legislator, addressing to judges the rules that will be widely applied and well enough known, so that parties involved in international trade may easily, and with sufficient certainty, determine which law will apply to their contract. Nonetheless, the arbitrator, to whom the rule is not addressed, is in a different position. His concern to fully justify his solution does not allow him to ignore subjective or objective factors. In addition, subjective factors, even if they are insufficient to characterize with certainty a choice of law, are particularly relevant when they render the expectations of the parties reasonably ascertainable.
For the same reason, when there are not enough subjective factors, arbitrators tend to consider all of the objective factors in order to determine where they converge rather than electing one of them as unique and sufficient.
Hence, arbitrators can neither reason in a dualist manner nor can they, when there is no express choice, rely on a single objective criterion, except if they have previously decided, for convincing reasons, to apply the Rome I Regulation.
32. As illustrated above, the notion of convergence plays a significant role in identifying the applicable law: convergence of national conflict of laws rules, convergence of the direct choice method and one or more conflict of laws rules, convergence of subjective factors with each other, convergence of objective factors with each other and convergence of subjective and objective factors.
However, sometimes there is no convergence. This may be the case where the conflict of laws rules of the countries where the parties are established designate different applicable laws, no subjective factor appears - for instance because the file reveals that the parties were in disagreement as to the applicable law - and the objective factors are dispersed, for example because the principal obligation of a contract falls on a party that is established in one country but performs the contract in another, and all of the other factors are divided between both countries. However, it is still necessary to determine the law applicable to the merits of the dispute and, for this purpose, to identify an objective element constituting a connecting factor.
Contrary to the solution provided by the Rome Convention and the Rome I Regulation, arbitrators use the place of performance of the main obligations under a contract and not the habitual residence of the debtor.22 This is not surprising, notwithstanding the wording of Article 4 §§ 1 and 2 of the Rome Convention, as the debtor's residence is less revealing of the closest connection than the place of the performance of the main obligations under the contract.
III. Suggested Directives
33. Although the diversity of methods used by arbitrators in order to determine the applicable law can be rationally explained, as we have just seen, the unfortunate result is a serious lack of predictability
It might be possible to introduce some order, and thereby some predictability, by establishing a typology of situations and a hierarchy between the various methods.
I make the following suggestions, always assuming that no express or clearly ascertainable choice of law, or conflict of laws rule, was made by the parties.
First situation: An international sale of goods; buyer and seller established in two different states; both states parties to the CISg: application of the CISg.
Second situation: All situations other than the first, in which the conflict of laws rule of the state in which the claimant is established designates the same law as the conflict of laws rule of the state in which the respondent is established: application of the law thus designated.
Third situation: All situations other than the first two, in which there are strong indications that the parties both expected a certain law to apply: application of that law.
Depending on the strength of these indications, this solution might prevail over the solution suggested in the second situation.
Fourth situation: All situations other than the first three, in which the parties agreed before the dispute arose that in case of a dispute the place of the arbitration would be in a given country: application of the conflict of laws rule of the state in which the arbitration takes place.
Fifth situation: All situations other than the first four: application of the law having the most significant connections with the contract, with special weight being given to the law of the state on whose territory the principal contractual obligation must be performed or was performed. In cases where the connections with the two states are symmetrical, subjective factors, even minor ones, must come into play.
In all situations: Application of the UNIDRoIT Principles, not as lex contractus but in specific circumstances, where the content of a given rule of the lex contractus is not clearly established or is manifestly inadequate.
1 Francis A. Mann, 'Lex facit arbitrum', in Pieter Sanders, ed., International Arbitration: Liber Amicorum for Martin Domke (1967) p. 158 et seq, in Arbitration International, 1986, p. 241 et seq.
2 Id., at p. 246
3 Id.
4 Berthold goldman, 'Les conflits de lois dans l'arbitrage international de droit privé', in Recueil des Courses de l'Académie de La Haye, Vol. 109 (1963-II) p. 373.
5 Id.
6 The French text reads: "La pratique internationale ne permet pas de considérer qu'un droit international privé de l'arbitrage, spécifique à cette institution et indépendante des droits nationaux soit une hypothèse d'école ou une rêverie."
7 Other examples include: Award rendered in 2000, ICC Case No. 10303, ICC Bulletin, Vol. 19, No. 1, p. 117: as the seat of arbitration was France, the arbitral tribunal decided to apply the Rome Convention adopted by France (the parties were Turkish and german); Award rendered in 2003, ICC Case No. 11024, in Les cahiers de l'arbitrage, No. 2008/2, Part II, p. 20: the arbitrator considered that, since the seat of arbitration was in geneva and since the arbitrator himself was of Swiss nationality, "the most logical initial approach leads inevitably to the conclusion that the source, the anchor, of the determination of the law applicable to the dispute must be found in Swiss international law".
8 Regarding the cumulative application method, see yves Derains, 'L'application cumulative par l'arbitre des systèmes de conflits de loi intéressés au litige', in Revue de l'arbitrage (1972) p. 99. For examples where this method was applied to arbitral awards, see Award rendered in 1992, ICC Case No. 7319, ICC Bulletin, Vol. 3, No. 2, p. 56: convergence of the parties' respective conflict of laws rules; Award rendered in 1998, ICC Case No. 8451 (unpublished): convergence of the parties' respective conflict of laws rules and that of the two successive seats of arbitration; Award rendered in 2004, ICC Case No. 12193, ICC Bulletin, Vol. 19, No. 1, p. 125: convergence of the parties' respective conflict of laws rules and that of the seat of arbitration.
9 See, for example, Award rendered in 1992, ICC Case No. 7319, ICC Bulletin,Vol. 3, No. 2, p. 56; Award rendered in 1998, ICC Case No. 8451 (unpublished).
10 See, however, the reasoning of the Award rendered in 1998, ICC Case No. 9636, ICC Bulletin, Vol. 19, No. 1, p. 112: application of the Rome Convention between a French party and a Turkish party because the Rome Convention was in force in the majority of the member states; superabundantly, however, the arbitrator noted that the Turkish conflict of laws rule designated the same law (Turkish law).
11 See Award rendered in 2004, ICC Case No. 12494, ICC Bulletin, Vol. 19, No. 1, p. 129: application of the Rome Convention between parties domiciled in non-member states, "as evidence of trade usages and internationally recognized principles applicable to conflict of laws issues".
12 See, for example, Award rendered in 1984, ICC Case No. 4451 (unpublished): designation of the law of the place of the characteristic performance of the contract; Award rendered in 1988, ICC Case No. 5866 (unpublished): the same solution was adopted, coinciding with the place where the contract was concluded and the place of the arbitration.
13 The arbitrator may, for example, decide not to apply a law that would cause the contract to be held void. See, for example, ICC Case No. 4145, Yearbook Commercial Arbitration, Vol. XII (1987) p. 97; Award rendered in 1996, ICC Case No. 8540 (unpublished).
14 See Pierre Mayer, 'Principes UNIDRoIT et lex mercatoria', in Philippe Fouchard and Louis Vogel, eds., L'actualité de la pensée de Berthold Goldman (Éd. Panthéon-Assas, 2004) p. 31 et seq.
15 Emmanuel Jolivet, 'L'influence des Principes d'UNIDRoIT en matière de pratique contractuelle et d'arbitrage', in Revue de droit uniforme (2008) p. 127 et seq.
16 On these distinctions, see Pierre Mayer, 'Le rôle des Principes d'UNIDRoIT dans la pratique de l'arbitrage de la CCI', in ICC Bulletin, Vol. 12, No. 2, p. 101-102.
17 Award rendered in 1999, ICC Case No. 10988, ICC Bulletin, Vol. 19, No. 1, p. 118.
18 Award rendered in 1992, ICC Case No. 7319, ICC Bulletin, Vol. 3, No. 2, p. 56.
19 See yves Derains, 'Attente légitime des parties et droit applicable au fond en matière d'arbitrage international', Travaux du Comité français de droit international privé (1984-1985) p. 81 et seq.
20 Award rendered in 1999, ICC Case No. 9893, ICC Bulletin, Vol. 19, No. 1, p. 113: reference made by both parties to the Rome Convention of 1980; Award rendered in 1999, ICC Case No. 10137, ICC Bulletin, Vol. 19, No. 1, p. 116: agreement of the parties as to the application of the conflict of laws rule of the seat of arbitration (Belgium); Award rendered in 2002, ICC Case No. 11864, ICC Bulletin, Vol. 19, No. 1, p. 122: evocation by the parties of the Rome Convention of 1980.
21 See ICC Case No. 7319, ICC Bulletin, Vol. 3, No. 2, p. 56; and ICC Case No. 8451 (unpublished).
22 See ICC Case No. 4451 (unpublished): the arbitrator designated the law of the place of the characteristic performance of the contract; ICC Case No. 5866 (unpublished): the same conclusion, which also coincided with the place of conclusion of the contract and the seat of the arbitration.