'Law governing the merits of the dispute

121. The Parties disagree on the applicable substantive law with respect to [Claimant]'s claims in relation to the termination of the 2000 Distribution Agreement. The Parties' dispute on the applicable law stems from their different views regarding the nature of this claim and the scope of Article 25.1 of the 2000 Distribution Agreement ...

122. With respect to the claims in relation to the termination of the 2000 Distribution Agreement, [Claimant] objects to the application of Finnish law and submits the application of Greek law, arguing that the choice-of-law clause does not apply to tortious claims. Consequently, [Claimant] requests the application of Article 18A of Greek Law 146/1914, a provision prohibiting the sudden and unjustified termination of long-term commercial relationships where one party is in a position of economic dependence on the other, regardless of the law governing the dispute.

123. [Claimant] submits, in essence, that its claim for sudden and unjustified termination amounts to a claim for unfair competition and therefore falls outside the scope of the choice-of-law clause. The claim in relation to the termination of the 2000 Distribution Agreement is to be governed by Greek law which is the law designated by the conflict-of-laws rules contained in the Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (hereafter "Rome II").

124. On the other hand, the Respondent submits in essence that Finnish law applies to the entire dispute between the Parties in accordance with Article 25.1 of the 2000 Distribution Agreement as well as Article 4 of the Affiliate Agreements and Article 17 of the Service Agreement.

125. Article 25.1 of the 2000 Distribution Agreement provides for a choice-of-law clause which reads as follows:

25.1 This agreement shall be governed by and construed in accordance with Finnish law. ...

126. Articles 4 of the Affiliate Agreements [with other companies in Claimant's group] all incorporate the choice-of-law clause contained in the 2000 Distribution Agreement by express reference as follows:

4. Section 25 (applicable law and arbitration) of the Distribution Agreement shall be applicable to this Agreement ...

127. Article 17.1 of the Service Agreement contains a choice-of-law clause which reads as follows:

17.1 This agreement shall be governed by Finnish law. ...

128. The issues comprised in [Claimant]'s claims concerning the termination of the Distribution Agreement require that the Tribunal addresses the issue of the applicable law.

129. Before reaching a conclusion on the applicable law (vii), the Tribunal will summarize the Arbitral Tribunal's power regarding the determination of the law applicable to the dispute (i) and analyze the relevant issues on the matter (ii; iii; iv; v; vi).

(i) The power of the Arbitral Tribunal

130. As a preliminary matter, it may be useful to recall that, under Article 17 of the ICC Rules,1

The parties shall be free to agree upon the rules of law to be applied by the Arbitral Tribunal to the merits of the dispute. In the absence of any such agreement, the Arbitral Tribunal shall apply the rules of law which it determines to be appropriate. (ICC Rules, Article 17.1)

131. It is accepted that this rule is founded on the principle that the parties are free to agree upon the law applicable to the merits of the dispute. Only in the event that they fail to do so is the Arbitral Tribunal entitled to decide what rules of law ought to be applied ...

132. It is also generally understood that, in making such a decision, the Arbitral Tribunal is not required to choose the applicable rules of law by reference to an appropriate rule of conflict. Instead, it may simply apply directly the rules of law that it determines to be appropriate.2 ...

133. The freedom of the parties to choose the law applicable to the merits of the dispute is widely accepted and thus the Arbitral Tribunal does not ordinarily have to assess whether the parties' choice as regards the applicable law is well founded or has any particular connection with the subject matter of the dispute. It has only to respect it ...

134. However, depending on how the parties have articulated their choice of law, it may not be exhaustive. The choice of law intended to govern the contract (lex contractus) will not necessarily extend to claims that are of an extra-contractual nature and that nevertheless fall within the scope of the parties' arbitration clause. However, in many such cases, arbitrators have applied the lex contractus where the tortious acts were committed during the performance of the contract.3

135. Moreover, the freedom that the parties enjoy to choose the law governing the merits of their dispute is not unlimited. A considerable body of commentary and case law has emerged with respect to the possible application to a dispute of mandatory rules of law irrespective of the choice of law made by the parties ...

136. In view of the above, a number of questions arise in relation to the law applicable to the merits of the dispute. First, what is the nature of [Claimant]'s claims for which it requests the application of Greek law? Second, does the choice of Finnish law apply to [Claimant]'s claims? Third, does Greek law override the choice-of-law clause pursuant to the Rome II or Rome I Regulation? Alternatively, does Article 18A apply as a matter of mandatory law or public policy?

(ii) The nature of [Claimant]'s claims

137. According to [Claimant], the "termination claims" are to be classified in accordance with Greek law because the claims are based on Article 18A which only exists under Greek law and which regulates behaviours that fall outside the contractual relationships. Alternatively, [Claimant] contends that the claims would also be classified as tortious under Finnish law.

138. Furthermore, [Claimant] asserts that the "termination claims" are tortious by nature because they are not based solely on the termination of the contractual relationship but comprise a variety of other elements of behaviour which make the relevant acts tort.

139. According to [Respondent], [Claimant]'s termination claims are contractual by nature and therefore covered by the Parties' choice of Finnish law. [Respondent] alleges that [Claimant]'s claims are to be regarded as contractual because they relate to the expiry or termination of a contractual relationship. [Respondent] further contends that classification should be carried out on the basis of the facts, not the legal provisions on which [Claimant] bases its claims.

140. [Respondent] argues that [Claimant]'s classification of its claims - especially under Greek law - is irrelevant in an arbitration proceeding with its seat in Finland. It is moreover irrelevant because the classification of claims in EU private international law should be made autonomously, without reference to the taxonomy of the different countries but with reference the decisions of the European Court of Justice on the matter.

141. The Respondent moreover disputes [Claimant]'s classification of its claim as unspecified. It contends that [Claimant] fails to explain what behaviour allegedly falls outside the limits of the contractual agreement.

142. As a preliminary matter, the Arbitral Tribunal notes that there is no uniform answer to the question of which law should be the basis for the classification of the cause of action. The traditional approach is to effect the classification on the basis of the law of the forum. However, an arbitral tribunal has no lex fori and, for instance, Finnish law is not the lex fori of this Arbitral Tribunal although it is sitting in Finland.

143. In the opinion of the majority of the members of the Arbitral Tribunal (hereafter the "Majority" or the "Majority of the Arbitral Tribunal"), it is however well established in private international law that classification must be made on the basis of the factual circumstances on which the claim is based, regardless of the nature of the legal provision which the party seeks to apply ...

144. The first issue to be addressed is whether the claims have been made in tort or contract. The Tribunal notes that [Claimant] requests the application of Greek law for its primary claims ... where it seeks (i) an order that Respondent performs the 2000 Distribution Agreement; (ii) compensation for the amount of … per month from [the date when Respondent ceased using Claimant's services as distributor] until the issuance of the Tribunal's award; or alternatively; (iii) compensation for the non-observance of the notice period; and (iv) goodwill compensation.

145. The Tribunal, by a Majority decision, finds that [Claimant]'s claims above derive from the performance of a contract and are therefore contractual by nature, regardless of the provisions of Article 18A.

146. The Majority of the Arbitral Tribunal notes that this is confirmed by the case law of the European Court of Justice according to which even a "claim for compensation for the wrongful repudiation of an independent commercial agency agreement and the payment of commissions due under such agreement are proceedings in matters relating to a contract in the meaning of Article 5(1) of the [Rome] Convention" ...

(iii) The scope of the Parties' choice of law

147. For the sake of completeness, the Arbitral Tribunal will now turn to the question whether, if theoretically the Claimants' claims were both in contract and in tort, the choice-of-law clause governs both aspects of the claims.

148. [Claimant] alleges that the choice-of-law clauses contained in the Agreements pertain only to the contractual aspect of the relationship with [Respondent] and therefore do not apply to related tort claims or to the clause limiting or exempting a party's liability. Besides, [Claimant] argues that under Finnish law, a choice of law was not admitted for tortious matters before the Rome II Regulation entered into force.

149. It is the Respondent's view that the Parties' choice of law applies to contractual and non-contractual claims alike. According to [Respondent], a contractual choice of law also applies to non-contractual claims arising out or in connection with the parties' contractual relationship. [Respondent] argues that the fact that the parties have addressed their liability in tort in the contract clearly evidences that the Parties intended for their choice of law to apply also to matters of tort.

150. Furthermore, according to [Respondent], Finnish private international law allows the Parties to choose the law applicable to matters of tort.

151. The Arbitral Tribunal notes that Article 25.1 of the 2000 Distribution Agreement provides for a choice-of-law clause which reads as follows:

25.1 This agreement shall be governed by and construed in accordance with Finnish law. ...

152. The Majority of the Arbitral Tribunal finds that it is well established in international arbitration that, except where otherwise provided, it may generally be assumed that the parties agreed on an all-encompassing reference to the chosen substantive law, i.e. such reference includes not only contractual claims in the strict sense of the term but also e.g. tort claims arising out of and in connection with the contract containing the choice-of-law clause. ...

153. In the context of a contractual relationship, the substantive law chosen shall in particular govern the interpretation and performance of the contract, the consequences of the breach of the contract (including the assessment of damages) and the various ways of extinguishing the obligations. This is for example expressly stated in Article 10 of the Rome Convention and Article 12 of the Rome I Regulation.

The law applicable to a contract by virtue of this Regulation shall govern in particular: [...] (c) within the limits of the powers conferred on the court by its procedural law, the consequences of a total or partial breach of obligations, including the assessment of damages insofar as it is governed by rules of law; (d) the various way of extinguishing obligations (...).4 ...

154. The Arbitral Tribunal, by a Majority decision, thus finds that the 2000 Distribution Agreement as well as [Claimant]'s claims in relation to its performance/termination are governed by Finnish law per the choice-of-law clause.

(iv) Should Greek law apply pursuant to the Rome II or Rome I Regulation?

155. The question now arises whether Greek Law (Article 18A) may override the choice-of-law clause out of any of the three following considerations:

- as the law designated by the conflict-of-laws rules provided under the Rome I or Rome II Regulations;

- as a matter of public policy for the Greek State, having a vested interest in protecting certain essential values, such as fair competition, by means of enacted legislation;

- as a loi d'application immédiate.

156. [Claimant] contends that, in order to determine which law should apply to the termination claims, the Arbitral Tribunal should resort to the conflict-of-laws rules in the Rome II Regulation. It is [Claimant]'s view that pursuant to the Rome II Regulation a choice-of-law agreement regarding a tort is only valid if entered into after the event giving rise to the damage occurred (Article 14) and even so, is to be disregarded if the damage results from a restriction of competition (Article 6.4). Therefore the choice of law in favour of Finnish law is not applicable to the sudden and unjustified termination claims.

157. Furthermore it is [Claimant]'s submission that pursuant to the Rome II Regulation, Greek law is applicable to the "termination claims" both as the law of the country whose market is affected by the alleged unfair competition (Rome II, Article 6.3) and as the law of the country where the alleged harmful event and corresponding damage occurred (Rome II, Article 4.1).

158. The Respondent contends that parties' autonomy is the cornerstone of international arbitration and private international law alike. Therefore the Parties' repetitive and express agreement on Finnish law to govern their commercial relationship should be respected.

159. Regardless of whether it is covered by the Parties' choice of law, [Respondent] contends that the Arbitral Tribunal should apply Finnish law to [Claimant]'s claim under the voie directe method because it is the most appropriate solution and disregarding the choice of Finnish law would be inconsistent with the legitimate expectations of the participants in international commerce.

160. The Respondent also submits that if the Arbitral Tribunal were to find EU private international law applicable in international arbitration, the law applicable to [Claimant]'s claims should be determined in accordance with Rome I. In support of its allegation [Respondent] submits that the case law of the European Court confirms that the concept of tort is residual and defined as a negation of contractual liability and thus that one must first determine whether an obligation falls under the Rome I Regulation before even considering Rome II.

161. Furthermore, according to [Respondent], the lex loci damni does not apply in a situation where the Parties have made a choice of law which extends to non-contractual matters; and Rome II does not limit the parties' right to agree on the law applicable to torts.

162. The Arbitral Tribunal would first like to restate that international arbitral tribunals will not necessarily determine the applicable law by the conflict-of-laws method. In the case at hand, the Arbitral Tribunal however finds it appropriate to examine whether Greek law may override the choice of Finnish law pursuant to the relevant rules of international private law.5

163. Second, the Arbitral Tribunal notes that there is no uniform answer to the question of which private international law is applicable to an arbitral dispute. The traditional approach is to apply the private international law of the place of arbitration. Another method is to apply the private international law that the Arbitral Tribunal deems most appropriate ...

164. The Arbitral Tribunal further notes that Article 31(1), (2) of the Finnish Arbitration Act 967/1992 (hereafter "Finnish Arbitration Act") provides that:

The arbitral tribunal shall decide the dispute in accordance with the rules of law applicable to the substance of the dispute. If the parties have designated the law of a given state to be applicable to the dispute, the tribunal arbitral shall apply that law. [... unofficial translation]

165. Moreover, according to the relevant Finnish doctrine:

Any designation of a law or legal system of a given state will at least generally be construed, unless otherwise expressed, as directly referring to the substantive law of that state and not to its conflict-of-laws rules. Failing a choice of law by the parties, the arbitrators shall according to the travaux préparatoires apply the law determined by the conflict-of-laws rules which they consider applicable. ...

166. In view of the above, having taken into account the arguments of the Parties and considering that the Respondent has its domicile in a Member State, the Arbitral Tribunal finds it appropriate in the case at hand to also resort to the European Regulations on conflict of laws.

167. The Arbitral Tribunal, by a Majority decision, found in para. 145 above that [Claimant]'s claims are contractual. The relevant European Regulation is therefore the Rome I Regulation on the law applicable to contractual obligations. The principle under Rome I is the freedom of the parties to choose the applicable law. Only in the absence of a choice does one resort to the conflict-of-laws rules provided under the Regulation ... This principle is expressed in Article 3.1 of the Rome I Regulation which reads as follows:

A contract shall be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or to part only of the contract. ...

168. The Majority of the Arbitral Tribunal notes that, in the case at hand, the Parties have agreed on a choice-of-law clause in favour of Finnish law ...

169. The Arbitral Tribunal, by a Majority decision, finds that under Article 3 of the Rome I Regulation this choice is to be respected.

170. As stated above, the Arbitral Tribunal, by a Majority decision, finds that [Claimant]'s claims are contractual. However, for the sake of completeness, the Arbitral Tribunal will examine whether Greek law may apply pursuant to the Rome II Regulation on the law applicable to non-contractual obligations.

171. The general rule under Rome II is that the law applicable to a non-contractual obligation arising out of a tort shall be the law of the country in which the damage occurs. In the case at hand the alleged damage occurs in Greece ...

172. The Majority of the Arbitral Tribunal however notes that, under certain conditions, the parties can chose another law to govern a non-contractual obligation. This principle is provided under Article 14 of the Rome II Regulation which reads as follows:

The parties may agree to submit non-contractual obligations to the law of their choice:

(a) by an agreement entered into after the event giving rise to the damage occurred;

or

(b) where all the parties are pursuing a commercial activity, also by an agreement freely negotiated before the event giving rise to the damage occurred.

The choice shall be expressed or demonstrated with reasonable certainty by the circumstances of the case and shall not prejudice the rights of third parties. ...

173. Even though none of the Parties raised this point in that way, the Arbitral Tribunal would first like to note that the Rome II Regulation is applicable to events giving rise to damage occurring after 11 January 2009 and that it does not provide that the date on which the choice-of-law clause was made has any bearing on determining the applicability ratione temporis of the Regulation or its Article 14.6

174. It is the Majority's opinion that the conditions provided under Article 14 are all met in the case at hand: the Parties, which both pursue a commercial activity, entered into a clear and written choice of law before the event giving rise to the alleged damage occurred; and the record does not evidence that the choice of law was not "freely negotiated" at the time it was made.

175. As stated above, it is the view of the Majority that the scope of the choice-of-law clause provided under Article 25.1 of the 2000 Distribution Agreement encompasses not only contractual claims in the strict sense of the term but also tort claims arising out of and in connection with the contract.7

176. The Arbitral Tribunal, by a Majority decision, therefore finds that pursuant to Article 14, the choice of Finnish law would also be valid and should be respected under the Rome II Regulation.

177. The Majority of the Arbitral Tribunal notes that under Article 6.4 of the Rome II Regulation, the law applicable to a non-contractual obligation arising out of an act of unfair competition may not be derogated from by a choice-of-law agreement otherwise valid pursuant to Article 14 ...

178. However, the Majority of the Arbitral Tribunal finds that the conduct on which [Claimant]'s claims are based cannot be classified as acts of unfair competition. As stated above, it is generally accepted that classification is to be undertaken on the basis of the facts and not of the law which a party seeks to apply to those facts. The Majority of the Arbitral Tribunal finds it clear that the act of terminating or not renewing a contract does not per se constitute an act of unfair competition, regardless of its characterization under Greek law.

179. Moreover, under the Rome II Regulation the notion of act of unfair competition must receive an autonomous definition as per Recital 23 of the Regulation. The Majority finds it clear that the conduct on which [Claimant] bases its claims does not amount to unfair competition as autonomously defined in the Regulation.8

180. The Arbitral Tribunal, by a Majority decision, therefore finds that, pursuant to Article 3 of the Rome I Regulation, the choice of Finnish law made by the parties is to be respected. The Majority of the Arbitral Tribunal further finds that even if the Rome II Regulation were applicable to the case at hand it would not lead to Greek law overriding the express choice of the parties in favour of Finnish law, but rather to the application of Finnish law pursuant to Article 14 of the said Regulation.

(v) Should Greek law apply to the claims as a matter of ordre public?

181. Should the Arbitral Tribunal decide that Finnish law does govern the dispute in relation to the alleged sudden and unjustified termination of the 2000 Distribution Agreement, [Claimant] requests the application of Article 18A as a mandatory rule and/or a rule of international public policy. According to [Claimant], it is widely accepted that Arbitral Tribunals may take into account the mandatory rules of a law closely connected to the dispute and only have to apply the law chosen by the parties provided that it is not contrary to public policy.

182. [Respondent] alleges that the non-application of Article 18A does not contravene public policy or international public policy.

183. It is unclear whether [Claimant] raises the argument of public policy to seek the application of Greek law or whether it seeks the application of Greek law's mandatory rules "which constitute international public policy".

184. The Arbitral Tribunal notes that issues of "public policy" play several significant roles in international commercial arbitration. The New York, Inter-American, and other international arbitration conventions permit the non-recognition of arbitral awards when they conflict with the "public policy" of the enforcing state.9 Closely related are provisions of these conventions permitting non-enforcement of arbitration agreements or awards that concern matters not capable of settlement by arbitration.10 In both of these contexts, issues of public policy are considered by national courts in deciding whether to recognize and enforce an arbitration agreement or award.11

185. Public policy is also important in international arbitration because it can provide a basis to limit the parties' choice of law. If an award becomes unenforceable in the jurisdiction of enforcement by virtue of the application of the law chosen by the parties, then it may be possible to restrict party autonomy ...

186. The Arbitral Tribunal notes that [Claimant] wishes to base its claims for specific performance and compensation for loss of profit on Article 18A which reads as follows:

1. The abusive exploitation by one or more undertakings of the relationship of economic dependence of another undertaking, which has the position of client or supplier of goods or services (even in relation to only a specific type of product or service) and does not have an equivalent alternative solution, is prohibited. This abusive exploitation of a relationship of economic dependence may consist, in particular, of the imposition of arbitrary terms in respect of transactions, the discriminatory treatment or the sudden and unjustified termination of long-term commercial relationships.

2. Anyone who has a legitimate interest may seek the lifting and omission of the violation and ask compensation for any damage sustained as a result of a breach of the above paragraph 1 of this Article.

3. Anyone who, either as an individual or as the representative of a corporate entity, acts in contravention of this Article is punished by monetary penalty of between five thousand (5,000) and fifty thousand (50,000) Euros. Where there is recurrent abuse, the above limits on monetary penalties are doubled. [... unofficial translation provided by the Claimants]

187. The Arbitral Tribunal would first like to state that the authority of an arbitrator is derived primarily from the parties' consensual agreement. When a tribunal applies public policy, legitimate questions arise as to the tribunal's jurisdiction and power to deviate from the parties' agreement on another law.

188. While Article 18A is indisputably mandatory under Greek law and might well be considered as Greek domestic ordre public especially as that law provides for criminal sanctions, the Majority of the Arbitral Tribunal does not find any authority in the record evidencing that this law amounts to international public policy. Moreover, it can be noted that the Greek legislator enacted this provision in 1913, then repealed it and last reestablished it in 2005. It is difficult to accept that the objective and effects of a law could be that fundamental for the Greek State if it seems hesitant about its adequacy in the first place ...

189. The Arbitral Tribunal, by a Majority decision, therefore finds that [Claimant] fails to prove that Article 18A amounts to international public policy.

190. The Majority of the Arbitral Tribunal further finds that [Claimant] fails to prove that Finnish law provisions on the protection of distributors are unacceptable to the Greek legal order. In fact, the Majority finds that Finnish law protects the same values by requiring a reasonable notice period in the termination of long-term contracts of indefinite duration ...

191. This is important as an Arbitral Tribunal will not disregard a choice-of-law clause if there is no sufficient objective reason to do so. A merchant who ventures into international transactions should not expect that his own national law will apply, specially if agreed otherwise and when the law chosen itself considers the interests at stake (here the prohibition of abrupt termination of long-term contracts).

(vi) Should Greek law apply to the claim as a matter of loi d'application immédiate?

192. The Arbitral Tribunal now turns to the question whether Article 18A may supplement or override the Parties' agreement in favour of Finnish law.

193. [Claimant] contends that Article 18A is a mandatory rule of immediate application because it aims at ensuring healthy competitive relations in the Greek market; and is therefore of special significance for the Greek State.

194. According to [Respondent], in international arbitration, the only limit to the parties' choice of Finnish law is public policy.

195. [Respondent] further contends that, even if one were to accept that foreign mandatory provisions, other than those considered as public policy, can apply regardless of the Parties' choice of law, Article 18A is not applicable in the case at hand because (i) [Claimant] has failed to prove the mandatory nature of Article 18 A; (ii) the theory of foreign mandatory rules is primarily an academic concept which hardly ever finds its application in legal practice; (iii) Article 18A is not worthy of application as a mandatory provision because it is a Greek peculiarity which would only affect the Parties' interests and not an internationally endorsed provision protecting the public interest; and (iv) Finnish law recognizes and protects the same values and interests as Article 18A.

196. The Arbitral Tribunal notes that 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.12 According to one authority:

[A] mandatory rule (loi de police in French) is an imperative provision of law which must be applied to an international relationship irrespective of the law that governs that relationship.13

197. As a preliminary remark, the Arbitral Tribunal would like to state that it is the creation of the Parties and not an institution of a national system. Because arbitrators do not administer justice on behalf of any specific state, they do not have a duty to enforce national mandatory rules other than the ones of the law chosen by the parties.

198. Therefore, while it is well established that an arbitrator must apply the mandatory rules of the applicable law of the contract (lex contractus), there is uncertainty as to whether the Arbitral Tribunal must or may do so with regard to the mandatory rules of the place of performance or enforcement of the award.14 ...

199. Leaving this preliminary question somewhat open, the Majority of the Arbitral Tribunal notes that the mandatory rules method involves:

identifying rules which, in their own legal system, reflect essential policy, and then evaluating, given the closeness of the connections between the case and that legal system and the "consequence of their application or non-application", if it is appropriate to apply those rules in the case at hand.15

200. The Majority of the Arbitral Tribunal finds that while the dispute is closely connected with Greece it is not the only state concerned with [Claimant]'s claims. Moreover in the Tribunal's view, the protection of a weaker party in contracts does not as such in all and every circumstance amount to an essential policy.16 More importantly, the Majority of the Arbitral Tribunal finds that the consequence of the non-application of Art 18A is minimal considering that Finnish law recognizes and protects the same policy. Finnish law protects the same value by requiring a reasonable notice period in the termination of long-term contracts of indefinite duration ...

201. Therefore, the Arbitral Tribunal, by a Majority decision, finds that Article 18A does not apply as a mandatory rule.

(vii) Conclusion

202. In conclusion, the Arbitral Tribunal, by a Majority decision, holds that, pursuant to Article 17.1 of the ICC Rules and the choice-of-law clauses provided in the Agreements, it has to apply Finnish law to the dispute.

203. The Arbitral Tribunal, by a Majority decision, further holds that Greek law does not apply to the dispute either as the law designated by the conflict of laws rules by the Rome I or Rome II Regulation, as a matter of public policy; or as a loi d'application immédiate.

204. Therefore the Arbitral Tribunal will examine the Parties' claims and counterclaims under Finnish law.'

1
Editor's note: This and subsequent references are to the 1998 ICC Rules of Arbitration.

2
Derains/Schwartz, A Guide to the New ICC Rules of Arbitration, The Hague 2005, p. 234 and references.

3
Derains/Schwartz, A Guide to the New ICC Rules of Arbitration, The Hague 2005, p. 239 and references.

4
Regulation No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (hereafter "Rome I" or "the Rome I Regulation"), Article 12.

5
See para. 132.

6
See Articles 31 and 32 of the Rome II Regulation. Article 32 of the Rome II Regulation provides that: "This Regulation shall apply from 11 January 2009, except for Article 29, which shall apply from July 2008." On the applicability ratione temporis of the Rome II Regulation see also CJEU C-412/10, Deo Antoine Homawoo vs GMF Assurance SA (17 November 2011) which clarifies that "the only time to be taken into account is that when the event causing the damage occurred".

7
See para. 152.

8
Recital 23 of the Rome II Regulation provides that: "For the purposes of this Regulation, the concept of restriction of competition should cover prohibitions on agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition within a Member State or within the internal market, as well as prohibitions on the abuse of a dominant position within a Member State or within the internal market, where such agreements, decisions, concerted practices or abuses are prohibited by Articles 81 and 82 of the Treaty or by the law of a Member State."

9
New York Convention Article V(2)(b); Inter-American Convention Article 5(2)(b).

10
New York Convention Article II(1); Inter-American Convention Article 5(a).

11
See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614 (1985) (indicating applicability of U.S. antitrust laws, notwithstanding Swiss choice-of-law clause); Jarvin, "Comments on U.S. Court Decisions" in ICC, Competition and Arbitration Law 148-49 (1993); Lowenfeld, "The Mitsubishi Case: Another View", 2 Arb. Int'l 178 (1986).

12
E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International Commercial Arbitration § 1516 (1999)

13
Mayer, "Mandatory Rules of Law in International Arbitration", 2 Arb. Int'l 274 (1986). Prof. Mayer chose a test that is respectively in Articles 7 and 9 of the Rome Convention and the Rome I Regulation.

14
Franco Ferrari, Stefan Kröll, Conflict of Laws in International Arbitration (2011) Munich pp.328-337; E. Gaillard, The Legal Theory of International Arbitration (2010) Leiden, pp.113-134; and E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International Commercial Arbitration § 1516 (1999) p. 850; See Andrew Barraclough and Jeff Waincymer, "Mandatory Rules of Law in International Commercial Arbitration", 6 Melb. J. Int'l L. (2005) pp. 205-207; and Catherine Kessedjian, "Mandatory Rules of Law in International Arbitration: What Are Mandatory Rules?", 18 Am. Rev. Int'l Arb. (2007, nos. 1-2) pp. 147-149.

15
E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International Commercial Arbitration § 1522 (1999), p. 852 and references.

16
See [Respondent exhibit:] "A debated issue is whether mandatory rules which intend to protect the 'weaker' party in contracts should be treated as international mandatory rules and therefore be subject to special treatment: the contracts concerned here are primarily consumer contracts, labour contracts, and to some extent also tenancies." A fortiori, see also on European competition law: [Respondent exhibit] p. 661: "In its decision of 8 March 2006, it [the Swiss Federal Court] held that EC competition law could not be considered to form part of the foundation of all legal orders such as to qualify as a matter of public policy" and [Respondent exhibit] Swiss Federal Court, 8 March 2006, Tensacciai v. Terra Armata.