Les parties ont conclu des accords visant à faire du défendeur un producteur de ciment compétent ayant une solide position sur le marché de l'exportation. La demanderesse a accusé le défendeur de violer la lettre et l'esprit de leurs accords. Après avoir présenté les demandes des parties, le tribunal arbitral a discuté la question de la loi applicable, ce qui a conduit à citer les <b>Principes Unidroit</b>. Aucune autre référence n'a été faite aux Principes ou aux « usages commerciaux applicables » ailleurs dans la sentence.

Le droit applicable

'[1] According to article 17 of the Rules, the primary source of the law applicable to the merits of the dispute is determined by the will of the parties. In article 5 of the Export Company Agreement, as well as in article 4 of the AEER [Agreement on Exclusive Export Rights, Upgrading of the Plant and Delivery of Cement], the parties have agreed that: "This agreement is governed by Lithuanian law." This choice of law clause has been interpreted as providing that Lithuanian law is to govern both the formation of the contract and the rights and duties of the parties arising from the contract as well. Throughout the proceedings the choice of Lithuanian law has not been disputed by the parties. (Claimant has expressly confirmed that the applicable law is Lithuanian and Respondents have impliedly confirmed this choice by invoking the provisions of the respective Lithuanian laws and arguing their applicability.)

[2] In its closing arguments Claimant has expressed the view that it is legitimate to look to the Unidroit Principles of International Commercial Contracts and the Principles of European Contract Law as a source of usage, customs and practice and that they are to be relied on when interpretation of the law is necessary in order to determine the parties' rights and obligations. Article 17 of the Rules confirms reliance on trade usage: "In all cases the Arbitral Tribunal shall take account of the provisions of the contract and the relevant trade usages." Both sets of principles represent the latest codification of international commercial trade usages. However, unless expressly incorporated by agreement between the parties, which they are not, they are not of mandatory but only of persuasive nature. Therefore, when necessary, the Tribunal refers in this Award to "the relevant trade usages" and such reference includes, but is not limited to, the Unidroit Principles and Principles of European Contract Law.'