Cisg Arbitration Agreement

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18. For example, Article 17(1)(2) of the ICC Rules: “In the absence of such an agreement, the arbitral tribunal shall apply such legal standards as it deems appropriate.” See also Article 22.3 of the LCIA, Article 28(1) AAA Rules, Article 24(1) of the SCC Rules, Article 24, (2) Viennese Rules; and article 33 Swiss rules. One of the answers is that UN sales law is generally enforced by courts rather than national courts and that, conversely, arbitration disputes are often settled by UN sales law. 14. Netherlands Arbitration Institute Award 2319, 15 October 2002, CISG-online No. 740; ICC Award 8644, 1 April 1997, CISG-online No. 904; Arbitral Award 226/1999 of the International Arbitral Tribunal for Commerce to the Chamber of Commerce and Industry of the Russian Federation, 11 February 2000, cisg-online No. 1345. There is a consensus that the law of sale of the United Nations can be chosen either as a “non-governmental right” at the level of conflict-of-laws law (provided that the applicable arbitration rules allow such a choice) or as a “set of substantive rules” at the level of substantive law.

In the latter case, the rights and obligations set forth in the United Nations sales law are part of the contract of the parties, but the arbitrators shall continue to determine the law applicable to this contract. 37. See Article 8(1) and (2) of the UNECE. My research has not revealed any national or international arbitral law that explicitly sets out interpretative rules for an arbitration agreement. For example, the Swiss PILA refers only to the interpretative rules of Swiss legislation on obligations. But the primacy of real intent and the factual prevalence of the standard of adequacy are commonalities. A considerable number of public courts [24] and scientists [25] have held that the substantive validity of arbitration agreements can be governed by the United Nations sales law. Others rejected such a view and relied on the doctrine of the salvatoriale clause that the contract of sale is a separate contract from the arbitration agreement. [26] The three cases concerned an application for exequatur of a foreign arbitral award which the debtor was opposed by the debtor because of the absence of a written arbitration agreement, referring to Article V(1)(a) of the New York Convention and the creditor`s failure to make available the written arbitration agreement provided for in Article IV(1)(b). The third case (ATS 370/1998 of 26 May) concerns an arbitral award of the International Fruit and Vegetable Arbitration Chamber (“CAIFL”).

The creditor provided the correspondence between the parties, an invoice for the transaction on which the dispute was based, a delivery note from a previous transaction (indicating an existing practice between the seller and the buyer) and a letter of confirmation of sale with arbitration agreement from the CAIFL. . . .

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