Three issues, all related to the question of how to comply with the applicable law while taking into account the expectations of the parties and the needs of international commerce, will be discussed in this paper: the specificity of international trade as a means of avoiding the application of a given rule in light of a recent decision of the French Cour de cassation (1) What should prevail?: The clause of a contract, or the rule that makes it invalid? (2) Is the arbitrator obligated to follow the interpretation of a provision, or more generally the rule, established by the case law? (3)

1. THE SPECIFICITY OF INTERNATIONAL TRADE AS A MEANS OF AVOIDING THE APPLICATION OF A GIVEN RULE

A decision of the French Cour de cassation of 12 October 20111 may be of some interest to underline the specificity of international trade as a means of avoiding the application of a given rule.

The roots of the case go back to the beginning of the 1990s when a Lebanese company, Groupe Antoine Tabet, entered into several financing agreements with the Republic of Congo. A dispute arose between the parties regarding the performance of the agreements. Among other proceedings, an ICC arbitration with its seat in Paris was initiated and the arbitral tribunal rendered no fewer than four arbitral awards — several of which were challenged before judicial courts. In its fourth and final award, the arbitral tribunal ruled that the outstanding payments due pursuant to one of the financing agreements should accrue interest at the annual rate of 10% until 31 December 2004 as provided by the contract and at the rate of 4.5% thereafter.

Groupe Antoine Tabet initiated a procedure to set aside the award before the Paris Court of Appeal, arguing that the arbitral tribunal, while applying French law, had exceeded its mandate and violated the principle of adversarial proceedings, by setting a 4.5% interest rate higher than the French legal interest rate (which, for reference, was 2.27% in 2004) but lower than the contractual interest rate provided by the parties up to 31 December 2004 (which amounted to 10%).

The Court of Appeal rejected these claims, stating that (i) the arbitrators had set this interest rate in accordance with the ‘general principles of French law’, by seeking the common intention of the parties, and that (ii) the parties had been afforded the opportunity to debate both the scope of application of the contractual interest rate and the principle of its reduction during the arbitral proceedings.

In a decision dated 12 October 2011, the French Cour de cassation overruled the Court of Appeal’s decision. The Cour de cassation held that the parties had not had the opportunity to discuss the applicable interest rate during the arbitral proceedings and that, apart from the case of Article 1244-1 of the French Civil Code, the judge (or, as applicable, the arbitral tribunal) can only reduce the contractual interest rate to the amount of the legal interest rate. Therefore, by setting an intermediate interest rate, the arbitrators had necessarily rendered a decision in equity and not in law.

It is unclear what were the parties’ respective positions before the arbitral tribunal regarding the interest rate. It seems, nonetheless, that the arbitrators’ choice of an interest rate at 4.5% was driven by the desire to take into account the claims of both parties in ‘splitting the difference’. However, according to French law, a judge cannot determine the interest rate on behalf of the parties, except by choosing the legal interest rate.

Consequently, the French Supreme Court ruled that by tempering the contractual interest rate, the arbitral tribunal had ‘necessarily’ rendered a decision in equity, en amiable compositeur, without the authorization of the parties.

This ruling is severe, because one could have considered that the arbitral tribunal’s decision was a mere misapplication of the applicable law, which would not lead to the award being set aside. However, as rightly pointed out by Eric Loquin, it was for the Court of Appeal to justify its denial of the set aside action on the grounds that such an error of law by an arbitral tribunal could not form the basis for setting aside an award, rather than leaving the denial of the set-aside open to an interpretation that equity could properly be taken into account by the arbitral tribunal.2

It is unclear whether the arbitral tribunal in that case intentionally chose to disregard the substantive applicable law and for what reasons. It is also unclear whether ‘the specificity of international trade’ or more likely the parties’ intentions played any role in the tribunal’s decision-making process.

However, the decision of the Cour de Cassation shows the court’s view that the application or non-application of a given rule contained in the law applicable to the merits is a subject that can merit review when controlling of whether an arbitral tribunal has properly carried out its mission.

The specificity of international trade can be expressed by the application by arbitral tribunals of transnational rules. International arbitral tribunals, unlike national courts, enjoy a certain freedom in respect of the application of the rules to settle the dispute brought before them. This freedom is expressed in different ways, among which are the taking into account of (i) trade usages and (ii) the principles of international law of commerce or lex mercatoria.

This specificity of arbitration arose out of the concern of arbitration users that their contractual relationship and the environment in which they conduct business be taken into account by the arbitrators. This specificity distinguishes arbitrators from national judges. Users frequently feel that the latter do not understand the realities of trade and commerce.3

This concern is addressed by the ICC Arbitration Rules: Article 21(2) of the 2012 Rules (formerly Article 17(2) of the 1998 Rules) states that:

“[i]n all cases the Arbitral Tribunal shall take account of the provisions of the contract and the relevant trade usages”.

This idea is to assure parties that whatever legal rules may apply to the dispute, the arbitral tribunal will not lose sight of either the terms of their contract or the business practices of their trade.4

Unlike some other rules, the ICC rules do not explicitly require the tribunal to render its decision ‘in accordance’ with the provisions of the contract and trade usages. One reason for this is that the arbitral tribunal cannot reasonably be expected to decide ‘in accordance’ with the provisions of the contract if those provisions are not valid under public policy provisions of the applicable rules of law.5

Article 1511 of the French Code of Civil Procedure states that:

“the arbitrator settles the dispute according to the rules of law that the parties have chosen; failing that, in accordance with rules he deems appropriate. He takes into account, in any case, the trade usages”.

This provision (unchanged following the reform of the 2011 Decree) follows the same principle: while judging according to the applicable law, the arbitrators will have to take into account the trade usages applicable to the parties’ business.

Trade usages are, like any other usages or customs, rules of conduct created by the practice of business operators. As pointed out by Eric Loquin, one of the distinctive feature of trade usages compared to mere usages or customs is their international nature. International trade usages develop in a transnational community of merchants and businessmen (the international coffee trade, for example) and thus are not part of a given legal system.6

Trade usages may be deemed incorporated into the contract as a matter of specific intent (for instance, if reference is made in the contract to Incoterms, or contracting regulations), or by implication (a custom is not referred to but is deemed by the arbitrators to have been within the contemplation of the parties).7 In other words, trade usages may be grouped broadly into two categories. First are those usages that arise out of the parties’ own course of dealing. Second are those practices known to and regularly observed by contracting parties in the particular area of trade.8

This distinction is reflected, for example, in Article 1(9), ‘Usages and Practices’, of the UNIDROIT Principles of International Commercial Contracts (2004), as follows:

“(1) The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves.

(2) The parties are bound by a usage that is widely known to and regularly observed in international trade by parties in the particular trade concerned except where the application of such usage would be unreasonable.”

Trade usages should not be confused, as they sometimes are, with the distinct concept of lex mercatoria. Both notions are to a certain extent related to customary business practices. However, the term ‘lex mercatoria’ normally refers to legal rules arising out of international commerce.

French case law has recognized that the arbitrator who applies the lex mercatoria (‘principes généraux des obligations généralement applicables dans le commerce international’) in the absence of any choice of applicable law by the parties has validly exercised his mission to judge in law.9

The French Supreme Court also ruled that an arbitrator has validly applied the rules of international commerce — lex mercatoria, as the law applicable to the dispute on the grounds that these ‘rules’ emerged from customary practice and received the national jurisprudence’s assent. This ruling has also been interpreted as showing the willingness of the French Supreme Court to preserve the possibility to refuse the qualification of lex mercatoria to rules that would have not received the national jurisprudence’s assent.10

2. WHAT SHOULD PREVAIL: THE CLAUSE OF A CONTRACT OR THE RULE THAT MAKES IT INVALID?

First of all, it should be noted that arbitrators are generally reluctant to declare the parties’ contract void, even if its clauses would appear to be illegal according to the applicable rules. In Pierre Mayer’s view:

“One reason for such reluctance is probably related to the fact that the arbitral process rests on an agreement between the parties. An arbitrator derives his powers from the bare will of the parties”.11

What is the real significance of the contractual origin of the arbitrators’ powers? Is it relevant to provide an answer to the question “What should prevail?: The clause of a contract, or the rule that makes it invalid”?

Traditionally, as a matter of private international law, the parties may choose to include a given national law as the governing law in their contract. This possibility gave rise to a debate among international private law scholars. According to Niboyet, the parties’ agreement can include a law other than the law that should apply according to the conflict of laws rules, the lex contractus. Such an ‘incorporation’ is possible as far as the lex contractus allows it. According to Dumoulin, the national law referred to in the contract as the governing law shall apply as a contract. This ‘incorporation’ requires an express choice by the parties, that is to say that it will not require using objective connecting factors to determine the applicable law of the contract (Pierre Mayer considers on the contrary that the law designated as the lex contractus is not ‘incorporated’ in the contract because it is in fact the contract that is governed by it.12 Therefore, accordingly what should prevail is not the clause of the contract but the rule of law that makes it invalid).

One might consider, to a certain extent, ‘incorporation’ is inherent to arbitration.

First, the arbitration agreement is itself the ‘incorporation’ into the contract of the arbitration mechanism as a means to settle disputes. In this way, the status of arbitrators is different from the status of national judges: arbitrators are fundamentally contractual authorities. They are ad hoc private judges whose mission is of contractual origin (despite the mission’s jurisdictional character). In other words, the parties have chosen by means of a contract, have ‘incorporated’ into the contract their judges of the contract. This ‘incorporation’ has become possible by the institution of arbitration itself as it is recognized by a legal system.

Second, the arbitrator will necessarily consider that the applicable law has been contractually incorporated by the parties within the frame of the agreement, because the primary mission of the tribunal is to be the ‘true guardian of the contract’ including the provision of the applicable law. This is, in our view, the essential reason for which arbitrators are reluctant to set aside or not to apply clauses of the main agreement that should or might be invalid under the applicable law.

The question that arises next is the nature of the invalidating rule. First, one should distinguish whether the rule that would render a contractual clause invalid is an overriding mandatory provision of the law applicable to the contract or not. This issue is in fact twofold, since a clause of the contract can be either contrary to a provision of the applicable law or to a mandatory provision of a foreign law (‘loi de police’).

There is not a single definition of ‘mandatory rules of law’ in international arbitration. It is however, generally accepted that a ‘mandatory rule’ could be defined as:

“an imperative provision of law which must be applied to an international relationship irrespective of the law that governs that relationship.”13

For Fouchard, Gaillard and Goldman:

“mandatory rules are generally defined from a purely functional point of view as rules that would not meet their objectives if not applied to a number of situations which they define themselves”.14

Mandatory rules of law are thus characterized by their imperative nature, justified by public policy protection. Such ‘mandatory rule’ in international arbitration actually reflects the legislator’s interventionism in national contractual law.

As regards the French legal system, mandatory rules have arisen to limit the principle of contractual freedom consecrated in the French Civil Code. Indeed, both social and economic factors have led the legislator to impose mandatory rules in the contractual relationship, mainly to protect the weak party. Thus several mandatory rules govern the contract’s formation in order to guarantee the consent of all parties and a breach of such rules must be sanctioned by the nullity of the contract. Other mandatory rules aim at protecting social values considered as essential. For instance, the validity of the contract is subject to that contract having a lawful purpose.

This results in a distinction between mandatory rules protecting public order which are binding upon the parties, and non-mandatory rules (called ‘règles à caractère supplétif’) which enable parties to freely negotiate their contract.

The question whether a provision of the applicable law could invalidate a contractual clause is, in itself, not an easy one, as most of the time legislators do not mention in the law whether a given rule has a mandatory or non-mandatory nature. Under French law, some rules contain the self-explicit terms “[t]oute stipulation contraire au présent article est réputée non écrite” which dispel any doubt. In the absence of any specific indication, judges and arbitrators will have to look at different sources such as preparatory works and case law to find the answer.

If the arbitral tribunal has to decide between the application of a contractual clause and the application of a rule that renders it invalid, the tribunal will have to apply the rule whenever it is a mandatory rule and consequently discard the clause contrary to it. By refusing to do so, the arbitral tribunal faces the risk of having its award set aside by the judicial courts for breach of the international public policy. The rationale of such principle is well known: the precedence of essential national policies or rules over party autonomy.

On the contrary, if the clause of the contract is illegal in the light of non-mandatory rules, arbitrators cannot restrict the effectiveness of the contractual provisions chosen and agreed by the parties to govern their relationship. In this case, the principle of party autonomy will come into full force, the contract being deemed to be the ‘law of the parties’ as stated in Article 1134 of the French Civil Code.

The question is more complex when the arbitral tribunal has to deal with a mandatory provision foreign to the law applicable to the contract that would nonetheless invalidate a contractual clause. In those instances, arbitral tribunals are often much more reluctant to invalidate a contractual provision by applying a law that was not chosen by the parties. However, the arbitral tribunal could decide to do so if it considers that such a foreign provision is an international overriding mandatory rule. Indeed, national judges are frequently provided with the option to apply a foreign mandatory rule that would have a legitimate interest to be applied and consider itself applicable to the case at hand.

First of all, foreign mandatory rules may be applied when their non-application would result in a violation of international public policy. However, in that case, it can be stated that:

“the grounds for the application of such rules do not lie in mandatory rules doctrine but in that of international public policy”.15

In practice, when the contractual clause enacts a behaviour widely considered as unacceptable (such as corruption or antitrust violations), arbitrators prefer to cancel the provision on the ground of international public policy rather than foreign mandatory rules, in order to avoid the setting aside of their award by national judges.

French courts are reluctant to take into account foreign mandatory rules when reviewing arbitral awards in case of annulment procedures. According to Pierre Mayer:

“Judges are quite ready […] to apply their own country’s mandatory rules of law, that is to say the lex fori, even if it is not the law governing the contract. […] On the other hand, the possibility of making such an exception in favour of mandatory rules of a foreign law is met with far greater reluctance.”16

Yet, the French provisions on arbitration enable the national judges to control the application of foreign mandatory rules by arbitrators when international public policy is also at stake.17

Indeed, Article 1520-5° of the French Code of Civil Procedure provides that a procedure to set aside the award can be initiated in case of a violation of the international public policy, which could include the foreign mandatory rules. Such a hypothesis could particularly materialize when the foreign mandatory rule aims at penalizing a conduct also considered as unacceptable by the French conception of international public policy.

More tenuous is the question of the application of foreign mandatory rules that do not form part of the international public policy. In certain circumstances, arbitrators do apply a mandatory rule foreign to the governing law chosen by the parties. For example, they may take into account the foreign mandatory rule as an element of fact when it has an impact on the performance of the contract or the legality of its purpose.

In fact, the question is whether the arbitral tribunal should only take into account the private interests or rather contribute to general interest identified by the foreign law claiming its application.

According to Pierre Mayer, the arbitrator should not:

“refrain from taking into account interests that admittedly exceed those of the parties but which legitimate nature can be universally perceived. […] It would be most unsound for international arbitrators to adopt a stance of general indifference as regards general interests protected by states. The very survival of arbitration as a means of dispute resolution could be undermined as a result”18.

Arbitrators should determine the applicability of foreign mandatory rules by taking into account the purpose and nature of the rules and the connection between those rules and the case at hand, having consideration to the efficiency of the award. If the foreign law at stake is the law of a state where the execution of the award may be sought, by applying its mandatory rules the risk that the national judge of that state will refuse the execution of the award is minimized. In Fouchard, Gaillard and Goldman’s words:

“Where arbitrators are invited to apply mandatory rules other than those of the lex contractus, the underlying philosophy is essentially the spirit of international cooperation in defending vital national policies. The emphasis is thus […] on the closeness of the objective connections between the rule and the situation in dispute.”19

3. IS THE ARBITRATOR OBLIGED TO FOLLOW THE INTERPRETATION OF A PROVISION, OR MORE GENERALLY THE RULE, ESTABLISHED BY THE CASE LAW?

1. Definition of Case Law

First of all, it appears to be necessary to define what is meant by the terms ‘case law’, ‘jurisprudence’ or ‘precedent’, since the arbitrator may be confronted to both national judicial case law and the jurisprudence emanating from other arbitral tribunals.

In most national systems, domestic courts follow earlier cases but may also depart from them. The degree of deference to earlier cases will vary from one jurisdiction to another, the precedential value of cases being weaker in civil law countries. The terms ‘case law’ and ‘jurisprudence’ refer to the body of precedent existing in a national system and binding national courts.

Under the common law doctrine of stare decisis (to stand by what is decided), national courts have a legal obligation to follow precedents.20

In civil law systems such as France, jurisprudence is viewed as the set of decisions whose outcome can be taken into account or even applied by other courts in the future. Domestic courts are under no legal obligation to follow those precedents, but higher courts may overrule lower courts’ decisions to ensure the coherence of the solutions adopted.21 In both systems, jurisprudence is the set of solutions provided by national courts in the context of their interpretation of legal provisions or in order to compensate for the lack of applicable legal provisions, and which constitutes a source of law.

The process of developing jurisprudence rests on two fundamental elements: an institutional and a normative one. The institutional element refers to the jurisdictional hierarchy between lower and higher courts, while the normative one refers to the substantive rule that courts’ decisions have established. As will further be examined, arbitral precedent lacks this institutional element, which makes it difficult to assess the existence of an arbitral jurisprudence.22

2. The Application of National Case Law by Arbitral Tribunals

It is commonly admitted that although common and civil law jurisdictions adopt different approaches on this matter, case law is in both systems regarded as a key source of law and the decisions of the highest courts have significant influence, even when they are not legally binding on lower courts. The importance of easily accessible case law as a source of law therefore leads to the conclusion that it is an integral part of the body of law, which would point towards its application by arbitral tribunals.

The question of the application of domestic case law by international arbitral tribunals is also linked to one of the most recurring issues of international arbitration, that is the question about the role of the arbitrator as opposed to that of a national judge. A component of the answer is to analyze the procedural behaviour of the arbitrator during the arbitral process and, in particular, his application of the applicable law to solve the dispute at hand.

The definition of the role and the function of arbitrators and arbitral tribunals is key to resolving the question of the use of national case law by arbitral tribunals. The question has been indeed studied though the prism of the arbitral tribunal’s procedural status.23

Traditionally, the main argument allowing the arbitrator not to apply national case law rests upon the specificity of the arbitrator’s mandate. According to this reasoning, the procedural duty of arbitrators in applying the applicable law, and therefore, in most of the main legal systems, the case law of the highest court, is less rigorous than the duty of a national judge. The rationale behind this idea is twofold: arbitral tribunals are not attached to any particular legal system, since the great majority of modern arbitration laws leave them substantial freedom in their application of the law, and the specificities of international commerce, which the arbitral tribunal is supposed to take into consideration in the context of an international arbitration.

The first part of the argument emphasizes the procedural differences between arbitral tribunals and national courts: arbitral tribunals are vested with a temporary judicial mission. In this respect, arbitral tribunals will focus on the case submitted to them and endeavour to settle the dispute between the parties rather than participate in the development of the applicable law.

It can however be argued that it falls within the mandate of the arbitrator to render a decision in conformity with the applicable law to the dispute and that national case law is, as said before, an integral part of this applicable body of law. Therefore, the adjudicative function and mandate of international arbitral tribunals prevent them from disregarding the applicable law and case law, since except when the parties have expressly provided for the award to be rendered in amiable composition, the decision of the arbitral tribunal must be rendered in law.

According to the second part of the argument, arbitral tribunals must take into account the specificities of international trade, which could lead them to avoid or discard national case law, since the solutions borne by those decisions have been influenced by domestic considerations which are not suitable for the needs of disputes of international trade.

I personally do not follow this analysis as it puts aside an essential need of international trade, which is the consideration of the parties’ expectations in order to provide them with predictable results and legal certainty. In effect, the respect of the parties’ expectations implies that the case law of the national applicable law be treated in the same manner as before the domestic courts. This is especially true when the parties have expressly chosen the applicable law.

To conclude, the question of the application of domestic case law by an arbitral tribunal is linked to the arbitrator’s mandate, which does not allow it to disregard an entire aspect of the applicable law. However, a particular judicial precedent could be put aside by the arbitrator whenever this decision is deemed to be inapplicable to the case at hand. There are indeed some instances where domestic judges would not apply a long-standing precedent because it is simply unsuitable for international matters. Similarly, a decision by an arbitral tribunal to disregard such a precedent would not amount to a refusal to apply case law, but to a reasoned interpretation of the national law applicable to the dispute before it, and would result from a careful analysis and consideration of national case law.

3. The Application of Arbitral Jurisprudence by Arbitral Tribunals

Contrary to national courts, arbitral tribunals lack a jurisdictional organization that would constitute the institutional element of arbitral jurisprudence. Indeed, without such an institutional hierarchy, the arbitral tribunal is not bound by a higher jurisdiction the function of which would be to unify the case law. Institutional arbitration also lacks such an element since arbitral institutions have no adjudicative power but only an organizational function.24

As far as the normative element of jurisprudence is concerned, some authors consider that it is not to be found in the authority of the precedential rule created, but rather in the eventual acceptability of the solution provided, which will allow it to be subsequently applied by another arbitral tribunal in a similar case.25

According to this view, there is an emergence of arbitral jurisprudence, as illustrated by the award rendered in the Dow Chemical case, in which the arbitral tribunal made an express reference to the progressively emerging arbitral case law, pointing out that arbitral tribunals should take it into account since it is by essence consistent with the needs of international business and provides specific suitable rules purposely created for international arbitration.26

Some authors argue that predictability and consistency being indispensable elements of the law, arbitral tribunals are thus under a moral obligation, albeit not legal, to follow precedents so as to foster a predictable normative environment.27

However, it is striking that reliance on past cases by arbitral awards remains extremely rare, especially for substantial matters. Indeed, surveys show that only 15% of ICC awards cite other arbitral decisions. Furthermore, among those awards, the vast majority of citations were made with regard to matters of jurisdiction or procedure, or in connection with the determination of the law applicable to the merits or the powers of the arbitral tribunal to order provisional measures. Aside from procedural issues, there is thus little precedential value or self-standing rule creation in commercial arbitration awards.28

The rationale behind this situation is to be found in the place of jurisprudence as a source of law. It can be argued that the creation of rules by case law depends on the current need for predictability, and that there is no such need when arbitrators apply a national law, since it is sufficiently developed to be predictable. On the contrary, matters of jurisdiction and procedure specific to international arbitration need to be rooted in purposely created rules arising from arbitral decisions. Thus, arbitral precedent is a necessity for certain types of disputes, not for others.29

1
Cour de cassation, First Civil Chamber, 12 October 2011, Société Groupe Antoine Tabet v. République du Congo; commentary of Bensaude, Denis Gazette du Palais, Volume n°24, 24 January 2012, p. 11.

2
Loquin, Eric, JurisClasseurr Procédure civile, fascicule 1038: Arbitrage. — Instance arbitrale. — Arbitrage de droit et amiable composition, 30 September 2009, n°65.

3
Craig, Laurence, Park, William, and Paulsson, Jan, International Chamber of Commerce Arbitration, Oceana Publications, 1998, p. 331.

4
Derains, Yves and Schwartz, Eric, Guide to the ICC Rules of Arbitration, 2nd edition, Kluwer Law International 2005, pp. 242-243.

5
Derains, Yves and Schwartz, Eric, Guide to the ICC Rules of Arbitration, 2nd edition, Kluwer Law International 2005, pp. 242-243.

6
Loquin, Eric, ‘Les règles matérielles duo commerce international (III. —Droit du commerce international, Quatrième Séance)’, Revue de l’arbitrage, Volume 2, 2005, pp. 443-464, spec. pp. 450-453.

7
Craig, Laurence, Park, William, and Paulsson, Jan, International Chamber of Commerce Arbitration, Oceana Publications, 1998, p. 332.

8
Paris Court of Appeal, 6 December 2001, Société Gothaer Versicherungsbank VVAG v. Taffin et autre, Revue de l’arbitrage, Volume 4, 2001, pp. 933-934

9
Cour de cassation, Second Civil Chamber, 9 December 1981, Société Fougerolle v. Banque du Proche Orient, Revue de l’arbitrage, Volume 3, 1982 pp. 183-189, commentary of Couchez, Gérard.

10
Cour de cassation, First Civil Chamber, 22 October 1991, Société Compania Valenciana de Cementos Portland v. société Primary Coal Inc, Revue de l’arbitrage, Volume 3, 1992 pp. 457-461, and commentary of Lagarde, Paul.

11
Mayer, Pierre, ‘Reflections on the International Arbitrator’s Duty to Apply the Law’ - The 2000 Freshfields Lecture, Arbitration International, Volume 17 Issue 3, 2001 pp. 235-248, spec. p. 243.

12
Mayer, Pierre, Heuzé, Vincent, Droit international privé, Montchestien, 10th edition, 2010, n°707.

13
Mayer, Pierre, ‘Reflections on the International Arbitrator’s Duty to Apply the Law’ - The 2000 Freshfields Lecture, Arbitration International, Volume 17 Issue 3, 2001 pp. 235-248.

14
Fouchard, Phillipe, Gaillard, Emmanuel and Goldman, Berthold, International Commercial Arbitration, Kluwer Law international, 1999, p.850.

15
Fouchard, Phillipe, Gaillard, Emmanuel and Goldman, Berthold, International Commercial Arbitration, Kluwer Law international, 1999, p.850.

16
Mayer, Pierre, ‘Mandatory rules of law in international arbitration’, Arbitration International, Volume 2 Issue 4, 1986, pp. 274-293, spec. , pp. 281-282.

17
Seraglini, Christophe and Ortscheidt, Jerôme, Droit de l’arbitrage interne et international, Montchrestien 2013, p. 817.

18
Mayer, Pierre, ‘Reflections on the International Arbitrator’s Duty to Apply the Law’ - The 2000 Freshfields Lecture, Arbitration International, Volume 17 Issue 3, 2001 pp. 235-248, spec. p. 246.

19
Fouchard, Phillipe, Gaillard, Emmanuel and Goldman, Berthold, International Commercial Arbitration, Kluwer Law international, 1999, p.852.

20
Kaufmann-Kohler, Gabrielle, ‘Arbitral Precedent: Dream, Necessity or Excuse?’, Arbitration International Volume 23, Issue 3, 2007, pp. 357-378, spec. pp. 357-358.

21
Jacquet, Jean-Michel, ‘Avons-nous besoin d’une jurisprudence arbitrale ?’, Revue de l’arbitrage, Volume 3, 2010, pp. 445-467, spec. p. 447.

22
Jacquet, Jean-Michel, ‘Avons-nous besoin d’une jurisprudence arbitrale ?’, Revue de l’arbitrage, Volume 3, 2010, pp. 445-467, spec. pp. 450-451.

23
See notably Berger, Klaus Peter, ‘The International Arbitrator’s Application of Precedents’, Arbitration International Volume 9, Issue 4, 1992, pp. 5-22 and Born, Gary, International Commercial Arbitration, Wolters Kluwer 2014, p. 3809 et seq.

24
Jacquet, Jean-Michel, ‘Avons-nous besoin d’une jurisprudence arbitrale ?’, Revue de l’arbitrage, Volume 3, 2010, pp. 445-467, spec. p. 453.

25
Jacquet, Jean-Michel, ‘Avons-nous besoin d’une jurisprudence arbitrale ?’, Revue de l’arbitrage, Volume 3, 2010, pp. 445-467, spec. p. 457.

26
Dow Chemical, ICC Interim Award n°4131, 23 September 1982.

27
Kaufmann-Kohler, Gabrielle, ‘Arbitral Precedent: Dream, Necessity or Excuse?’, Arbitration International Volume 23, Issue 3, 2007, pp. 357-378, spec. pp. 372-374.

28
Kaufmann-Kohler, Gabrielle, ‘Arbitral Precedent: Dream, Necessity or Excuse?’, Arbitration International Volume 23, Issue 3, 2007, pp. 357-378, spec. pp. 361-362.

29
Kaufmann-Kohler, Gabrielle, ‘Arbitral Precedent: Dream, Necessity or Excuse?’, Arbitration International Volume 23, Issue 3, 2007, pp. 357-378, spec. pp. 372-374.