CISG and the Law Applicable in International Commercial Arbitration: Remarks Focusing on Three Common Hypotheticals
Files
Description
It is common knowledge that many contracts that include an agreement to arbitrate will also specify the applicable law to govern the substantive merits of the contract itself. Having negotiated about the appropriate type of forum, the parties are likely to have considered the issue of applicable law as well, in particular where the parties have resorted to recommended arbitration clauses, such as that of the LCIA, which also expressly suggest to insert a choice of law clause into the contract. This is why the hypothetical to be dealt with first relates to a dispute arising from an international sales contract between parties with places of business in different Contracting States to the CISG that does contain a choice of law clause stating "This contract is subject to the laws of the State of New York, United States of America." In this author's opinion, the CISG applies to disputes arising out of such contracts containing a similar choice of law clause, and this irrespective of the view one takes on how arbitral tribunals have to approach the issue of applicability of uniform substantive law conventions, such as the CISG, in general. According to some commentators, the reason for arbitral tribunals having to apply the CISG in cases like the one at hand, where the parties have chosen the law of a Contracting State to the CISG to apply to their contract, is linked to the autonomy granted to the parties by the applicable rules to determine the law applicable to the merits of the dispute, and this irrespective of whether the CISG's applicability requirements stricto sensu (set forth in Articles l(l)(a) and I (l)(b) CISG) are met and of whether the seat of arbitration is located in a Contracting State. Where the applicable rules allow parties to choose the law (or rules of law) applicable to the merits of their dispute, as do most of the arbitration rules as well as most domestic rules regarding international arbitration, certainly those modelled after the UNCITRAL Model Law, and the parties have agreed on the law of a Contracting State to the CISG, the CISG is to apply as part of the law chosen.
Source Publication
A Tribute to Joseph M. Lookofsky
Source Editors/Authors
Mads Bryde Andersen, René Franz Henschel
Publication Date
2015
Recommended Citation
Ferrari, Franco, "CISG and the Law Applicable in International Commercial Arbitration: Remarks Focusing on Three Common Hypotheticals" (2015). Faculty Chapters. 568.
https://gretchen.law.nyu.edu/fac-chapt/568
