La demanderesse, une société ayant son siège au Royaume-Uni, accuse deux citoyens des Etats-Unis de violation contractuelle, fraude et dol dans le cadre d'un contrat conclu pour constituer une société aux fins d'obtenir des contrats pour la conception, la fabrication, l'installation et l'entretien de systèmes et d'équipement de sécurité. La sentence finale de l'arbitre unique commence par la question de la loi applicable.

• Interprétation de la clause compromissoire

• Loi applicable

'A preliminary issue that must be decided in this case involves the law to be applied to the parties' disputes. The parties disagree over the effect of the following provisions of the Articles of Association, which is the contract governing the parties' relationship:

13.2. In the event that the Parties are unable to find an amicable solution, a Party shall be entitled to refer the dispute to arbitration by the International Chamber of Commerce in London [sic], who shall be guided by the Rules of Reconciliation [sic] and Arbitration and by the Law of the United States and such arbitration shall be heard in Dallas, Texas.

Each of the Claimant's claims is based upon the law of the State of Texas. Claimant argues that the phrase "guided by the . . . Law of the United States" is not an effective choice-of-law clause, and under Rule 17(1) of the ICC Arbitration Rules, the Arbitrator is free to decide which law to apply to the parties' claims and defenses. Claimant then argues that under general choice-of-law principles in the United States, the law of Texas should apply to both contract and tort claims.

Respondents argue that the same phrase is an effective choice of law that effectively excludes the law of the State of Texas in favor of the federal law of the United States. Respondents conclude that the Arbitrator has no discretion and must apply the law of the United States, and not the law of the State of Texas.

For the reasons stated below, the Arbitrator concludes that the law of the United States, including or supplemented by the law of the State of Texas, should be applied to the parties' disputes.

First, both parties cite the case of Porter Hayden Co. v. Century Indemnity Co., 135 F.3d 380 (4th Cir. 1998), in support of their position. The Arbitrator finds the case distinguishable and irrelevant to the present issue. In Porter Hayden, the governing law clause read, "all disputes concerning issues within the scope of the Agreement shall be determined in accordance with applicable common law of the states of the United States". Id. at 382. The court observed of this clause, "The Agreement's choice-of-law provision can reasonably be read merely as specifying that Maryland substantive law be applied . . . ." Id. at 383. The dispute, however, focused on whether the governing law provision selected Maryland or federal arbitration law, which allegedly differed over who decides the timeliness of a demand for arbitration - the courts or the arbitrator. The court found that federal arbitration law applied. The issue in Porter Hayden is not the same as in the present case, and the language of the governing law provision there specified that state law would govern, while Section 13.2 is not so specific in this case. Therefore, Porter Hayden is of little help in resolving the issue here.

Second, it should be noted that the phrase, "shall be guided by", is not the same as saying that all disputes "shall be governed by" or that a particular law "shall be applied to all disputes". See generally ICC Cases 7385 and 7402 of 1992, Collection of ICC Arbitral Awards 1991-1995 at 209, 213 (Kluwer 1997) (the phrase, "This Agreement shall be interpreted under the laws of [a U.S. state]", only selects the law applicable to questions of interpretation of the agreement); Mobil Oil Iran, Inc. v. Government of the Islamic Republic of Iran, Award No. 311-74/76/81/150-3 (14 July 1987), 16 Iran-U.S. Claims Tribunal Rptr. 3, 24 (similar phrase, same result). The phrase, "shall be guided by", indicates an intent that the parties expected the Arbitrator to review the law of the United States in connection with the parties' disputes, but it does not exclude the application of other law to some (or even all) of the disputes between the parties. In summary, the phrase "guided by" is not an exclusive choice of the law to be applied to the parties' disputes. Therefore, even if the contract referred specifically to the federal law of the United States, it would not necessarily be the exclusive governing law, but could be supplemented by state law such as that of Texas.

Third, the phrase, "Law of the United States", is a generic and inclusive term that in ordinary usage includes the laws of the various states that form the United States. If only federal laws were intended by this phrase, a draftsman would likely have specified "the federal law of the United States". Thus, it may be concluded that the parties intended the phrase to have its ordinary and general meaning, which would include within it the law of the State of Texas. See Branson & Wallace, "Choosing the Substantive Law to Apply in International Commercial Arbitration", 27 Va. J. Int'l L. 39, 59-60 (1986) (choice-of-law clause selecting the law of a state of the United States should be deemed to include federal law).

Further support for this position derives from various paragraphs of the Articles of Association - such as Paragraphs 10.8, 11.2 and 12.1 - which refer to the laws of the State of Texas. Although these are not choice-of-law clauses, they indicate that the parties intended the law of Texas to be relevant to the parties' relationship in some respects. Since the choice-of-law provision did not say that all disputes would be governed by the "Law of the United States", but merely that the Arbitrator would be "guided by" such law, the inclusive - or at least non-exclusive - aspect of these terms is highlighted by the reference to the law of Texas in the Articles of Association.

Fourth, the reference to the "Law of the United States" does not exclude the application of the conflicts-of-laws principles of the United States, nor does it say it is a selection of the substantive law of the United States. If the conflicts-of-laws principles of the United States were applied, they would be derived from the federal case law, which is summarized in the Restatement (Second) of Conflicts of Laws. Under Section 188(1) of the Restatement, the law to be applied to contract claims is that of the law that has the most significant relationship to the transaction and the parties. Under Section 145(1) of the Restatement, tort issues are to be determined by the law of the jurisdiction with the most significant relationship to the occurrence.

Claimant, an English company, argues in favor of applying Texas law, while Respondents, Texas residents, argue against the application of Texas law. Claimant is principally an investor in a company using Respondents' technology. The subject matter of the Articles of Association is the company that was to be formed and operated for the parties' benefit, . . ., which was incorporated, headquartered and operated in Texas. Virtually all actions taken under the parties' contract occurred in Texas. The conduct allegedly causing the injury occurred in Texas, the parties' relationship was centered in Texas, and both the place of performance of the contract and the location of the subject matter of the transaction were Texas. In this case, the law of the State of Texas has the most significant relationship to both the transaction and the occurrence. Therefore, under general conflicts-of-laws principles of the United States, the laws of the State of Texas should be applied to the contract and tort issues.

Fifth, if Section 13.2 were not considered an effective choice-of-law provision, as Claimant contends, the same result would nevertheless apply. Whether guided by Texas conflicts-of-laws principles (the state in which the arbitration takes place), general conflicts-of-laws principles of the United States, including federal case law (the country which is the situs of the arbitration), or by voie directe, the Arbitrator concludes that the substantive law of the United States, including or supplemented by the substantive law of the State of Texas, should be applied to the parties' disputes.

Finally, Section 17.1 reads: "The Agreement shall be governed and construed under United States Law." The earlier analysis applies equally to this section, and does not change the foregoing conclusions.'