Determination of the applicable substantive law / choice of London as place of arbitration not an indication of intent to the application of English Law / application of lex mercatoria, no /application of a conflict of law rule directly chosen by the arbitrators / contract center of gravity or connection test

'It is a widely recognized principle in international arbitration that parties have autonomy to choose any law to be applied by the arbitrator to the merits of the dispute. The Agreement does not contain an express choice-of-law provision.

The Claimant contends that the parties gave no indication of the law that was to govern their contractual relationship. The Claimant therefore argues that the international principles of law and lex mercatoria should apply. The defendant believes that the selection of London as the place of arbitration and of English as the language of the contract should be interpreted as an indication of a choice of English law.

In the present arbitration the Arbitrator takes note that the parties agree that their disputes should be resolved by a neutral international tribunal under a neutral set of laws and rules.

The choice of London as the place of arbitration and English as the language of the contract does not, in itself, indicate an intention of the parties that English law should govern the validity of the agreement to arbitrate.

(...)

The Arbitrator therefore does not believe the parties implicitly chose English law or another national system of law to govern their contractual relations. He does take note of the view of the parties that they intended a neutral system of law to apply.

Under Article 13(3) of the ICC Rules, when the parties have not indicated a governing law, the Arbitrator has discretion in the choice of the applicable law.(...) He is authorized to refer to any conflict of laws system at his disposal, and "is by no means obliged to give preference to one of them, above another" (ICC Awards N° 2930 (1982) and 2637 (1975).

The conflict of laws principles that arbitrators in international commercial cases most frequently consider to determine the governing law are (1) application of the choice of law system in force at the seat; (2) cumulative application of the choice of law systems of the countries having a relation with the dispute; (3) application of general principles of conflict of laws; and (4) application of a rule of conflict chosen directly by the arbitrator.

(…)

In complex international relationships such as that under review, a widely accepted choice of law principle in most jurisdictions, including England, Liechtenstein and France, is the center of gravity, or the connection, test. Under this test, the arbitrator selects the substantive law of the jurisdiction that has the greatest connection with the dispute. Application of this principle to the present dispute has the advantage that it can be deemed to be an application of all four choice of law principles listed above.

The relevant connections in the dispute before the Arbitrator are the following: (...)

It is evident that Swiss law is the neutral system of law with the greatest connection both with the relationship between the parties and with their present dispute. The parties' contractual relationship is governed by a contract concluded by the parties in Switzerland. The Claimant demands release of the documents stored in the Bank ABC in Geneva, under a contract with the bank governed by Swiss law. The payment of commissions was to have been made in Defendant's Swiss bank account and into Claimant's Swiss bank account, according to the relevant agreements. Compared to these connections, connections to any one of the other relevant jurisdictions are considerably less significant.

Taking into account the submissions of both parties, the nature of their relationship, and the circumstances of the present case, the Arbitrator concludes that the law applicable to the dispute before him is Swiss law.'