The wealth of contributions recorded in the preceding pages, all very much to the point, show how enriching and relevant the seminar was and amply justify our wish to make the fruits of this experience more widely known through this publication.

It caught my attention that nobody at the seminar expressed any reservations over the intrinsic quality of the UNIDROIT Principles or their appropriateness to govern international commercial transactions. This should be highlighted in view of the fact that the UNIDROIT Principles have occasionally been criticized with regard to their substance and their ability to regulate international transactions efficiently.

However, the fact that they are appropriate in general does not necessarily mean that their application in each and every arbitration case is always appropriate. This was made very clear by various speakers, including Robert von Mehren, who, with an illustration from New York law, indicated that parties and counsel feel inclined to choose the application of a national law rather than transnational legal principles. Statistics from different institutions indicate that when the parties are considering the most appropriate legal framework for their transaction, they show a preference for the application of a national law. ICC statistics for the year 2000 indicate that 541 new cases were filed in that year. In 77% of those cases there was an explicit choice-of-law stipulation, which in 75% of cases designated a national law. In only 2% of the 541 new cases was reference made to international legal principles, including the UNIDROIT Principles.2

Professor Mayer has suggested that the UNIDROIT Principles do not constitute a self-contained or comprehensive legal system and, for that reason, that they may present gaps needing to be filled. Several speakers emphasized how important it is, in certain circumstances, to combine a choice of the UNIDROIT Principles with the choice of a national law to deal with matters (such as unjust enrichment) not covered by the Principles. The reverse situation is also found, that is where the parties have chosen a national law yet still rely, or wish to rely, on the UNIDROIT Principles, or where the arbitral tribunal feels that the UNIDROIT Principles have a role to play. An example is ICC case 8540, where the arbitral panel decided that New York law applied but that the conclusions that would result from the application of New York law were to be compared with those derived from the application of general principles of law, to be determined on the basis of the UNIDROIT Principles as a useful source for establishing general legal rules for international contracts. If parties are free to choose the applicable law or rules of law, then they are also free to decide how national law and transnational legal rules and principles shall interact for the purpose of resolving a dispute.

If we accept that the UNIDROIT Principles are intrinsically good, that they stand for sound and appropriate cultural compromises, and that they are adapted to international business transactions, their future will depend, at the end of the day, on how these factors appeal to the reason of arbitrators and their innermost beliefs as adjudicators on where to look for, and find, the best or more appropriate substantive solutions for disputes submitted to them. Arbitrators are often faced with a panoply of different laws, rules of law and principles, with ample choice-of-law freedom to select, against the backdrop of the circumstances of the case, the substantive solution that, because of its quality, usefulness and rationality, appears to them as the most appropriate.

Just as international commercial arbitrators, on account of their status, are de facto and de jure largely free to decide on their own jurisdiction, so they are free to decide choice-of-law matters, subject to certain restrictions. Yet the evaluation of those restrictions ultimately rests with the arbitrators themselves, particularly in the absence of an express stipulation on the applicable law. It is from this perspective that arbitrators have to judge which are the most appropriate laws or rules of law to govern a given transaction. Their convictions on the degree of excellence of those laws or legal rules will inevitably have an impact on their determination of the choice-of-law question. This is the yardstick by which the performance, and ultimately the success, of the UNIDROIT Principles will have to be measured.

In this connection, I would like to comment briefly on the issue of 'negative choice', which was frequently mentioned at the seminar. In my opinion, it is one technique among others used by arbitrators, within their broad choice-of-law freedom, to come to the most appropriate decision in the case in question. More important than the theoretical merits or demerits of this technique is, of course, that it be used wisely.

I cannot agree that the negative choice approach automatically applies whenever there are express or implicit indications that each party wished to avoid the application of the national law of the other party. Other decisive concurring factors must be present, such as the parties' desire to have a neutral decision for their case. Indeed, neutrality extends to the choice-of-law process adopted by arbitrators and it is in fact the prevailing factor when opting for a negative choice approach. This is where the UNIDROIT Principles may have an important part to play, for they are not only appropriate and well adapted to govern international cases, but also neutral. And it is in order to give expression to the parties' aspiration to neutrality that arbitral tribunals may resort to the negative choice-of-law technique. Even in such situations, however, there is no reason to believe that the arbitrators will necessarily conclude on the application of general principles of law, lex mercatoria or the UNIDROIT Principles. They may, for instance, decide on the application of a national law designated by the conflict-of-laws systems of the national jurisdictions connected with the dispute when they lead to the same substantive solution. Such convergence may be seen as an indication in itself that the substantive solution reached is neutral.

One example of negative choice that emphasizes the concerns of the arbitral tribunal regarding neutrality is the award rendered in ICC case 7375, where the arbitrators, by a majority opinion, show that the conflict-of-laws rules of the parties involved led to different and conflicting substantive solutions with respect to the statute of limitations, which was the principal issue in the case. To make a rule-of-thumb selection of one national conflict-of-laws system rather than another would influence the substantive outcome and lead to one party winning and the other losing on the basis of an abstract choice. A similarly unfair solution would have been reached if the tribunal had arbitrarily chosen to resort to the private international law of the forum, which was Switzerland. On account of its concern for neutrality, the arbitral tribunal decided that general principles of law should govern, including the UNIDROIT Principles to the extent that they express or stand for general legal principles.

These are just remarks, not conclusions. At the end of the day, the truth will lie in an enlightened, conservative approach to the application of the UNIDROIT Principles, as suggested by Professor Dessemontet. However, the combination of enlightenment and conservatism should not lead to timidity or shyness when the needs of a case call for the application of the Principles and the circumstances so permit. Professor Dessemontet also pleaded for better knowledge of the UNIDROIT Principles through education. Let us not forget that the UNIDROIT Principles are very recent and that they will need time to become better known and understood. I am reminded of Sergio Le Pera's comparison between lex mercatoria today and that which was incorporated into the common law by Lord Mansfield. How long did it take for this incorporation to be complete ?

I believe that today we are in a much better position to go faster. It is primarily for international commercial arbitral tribunals-not national courts of law, weighed down by their own parochial traditions-to act as harbingers of these new developments. On this basis, the UNIDROIT Principles have every chance of becoming widely accepted.

1
At the time the ICC/UNIDROIT seminar was held (April 2001), the author was incumbent Secretary General.

2
In 2001, 78% of the 566 new cases filed had an explicit choice-of-law stipulation, which referred to a national law in 77% of the cases.