Résolution d'un contrat de vente prévoyant le règlement par l'acheteur (société autrichienne demanderesse) du prix par voie de crédit documentaire. Le vendeur (société turque) refuse d'accepter la lettre de crédit en raison de différences dans les termes du crédit et met fin au contrat /Droit applicable en l'absence d'accord des parties / Rome, siège de l'arbitrage fixé parla Cour CCI /Art. 13(3) du Règlement CCI / Absence de lex fori de l'arbitre / Application des principes de droit international privé exprimés dans les conventions internationales / Les Conventions de La Haye de décembre 1986, Art. 8(1), et de Rome de juin 1980, Art. 4(1) et (2) énoncent des principes reconnus de conflit de loi / Application de l'art. 13(5) du Règlement CCI

'The Contract does not provide for the law applicable to the relations established between the parties.

As provided in Article 13(3) of the ICC Rules of Arbitration, "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".

In accordance with the classical doctrine on conflicts of law, this rule should be determined by the law in force at the place of arbitration (lex fori).

However, this doctrine has been widely criticized, mainly in consideration of the fact that the arbitrator, differently from the national judge, has no lex fori. Therefore, the Arbitral Tribunal considers it more appropriate to apply the general principles of international private law as stated in international conventions, particular those in the field of the sale of movable goods.

The Hague Convention [of December 22, 1986] establishes the principles governing the determination of the law applicable to contracts for the international sale of goods. This Convention provides (Article 8.1) that in case of silence by the parties the law of the State where the seller has his place of business at the time of conclusion of the contract is applicable. This rule of conflict coincides with that provided by the EEC Convention of June 19, 1980 on the law applicable to contractual obligations, which points to the law of the State with which the contract has the most significant connection (art. 4.1). The presumption is that such a State is that in which the party rendering the most characteristic performance has its residence or principal place of business (art. 4.2).

Although neither of these Conventions has been ratified by Austria and Turkey, the rules of conflict therein set out may be considered as representative of the prevailing principles in the field.

The Contract has been concluded and signed in Istanbul and the seller had in Turkey its place of business at the time the Contract was signed. Therefore, the law applicable to the present dispute is the Turkish law. However, in conformity with Article 13(5) of the ICC Rules of Arbitration, the Arbitral Tribunal shall take account also of the provisions of the Contract and of the relevant trade usages.'