The UNIDROIT Principles of International Commercial Contracts and ...

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410 (2002) 36 R.J.T. 375 Another ICC arbitration case concerned a dispute over a contract of distributorship signed by parties domiciled in Switzerland, Singapore and Belgium, where the main issue re f e r re d to the regulation of re p u rchase of the inventories, following the contract termination by agreement of the parties. Even though the parties had indicated the Swiss law as applicable to the contract, the arbitral tribunal, when deciding on the exchange rate to be chosen for the payment of the re p u rchase in local currency, re f e r re d to Article 6.1.9(3) of the Principles. It intended, thus, to validate i n t e rnationally the solution given by the domestic law (Swiss law) applicable in the particular case 62 . Finally, a very interesting ICC arbitral award re n d e red in Colombia also applied the Principles to a contract governed by the Colombian Commercial Code, so as to demonstrate that the solution found under domestic law corresponded to modern intern a t i o n a l commercial law 63 . In Argentina, as well as in other ME R C O S U R countries, the Principles can be a helpful instrument to interpret and supplement the domestic law (of the forum or of a foreign State) applicable to the international contract. The Argentine legal doctrine supports such application, according to the distinguished opinion of Antonio Boggiano, judge of the Argentine Supreme Court, who says that: [t]he Principles of the UNIDROIT can be used to interpret, supplement and apply the national law chosen by the parties or applicable by virtue of the rules of conflicts of laws: the rules of the applicable national law may reveal themselves as very rigid or of little conformity with the international contracts […]. 64 It seems reasonable to recommend the supplementary application of the Principles in arbitrations taking place in the MERCOSUR region, since the region’s arbitration rules generally show the 62 Cited by K.P. BERGER, “The Lex Mercatoria and the UN I D R O I T Principles of I n t e rnational Commercial Contracts”, (1997) 28 Law and Policy in Intern a t i o n a l Business 982. 00.07.1995 – ICC International Court of Arbitration, case 8240, in [www.unilex.info] – UNIDROIT Principles – cases (by date). 63 00.12.2000 – ICC International Court of Arbitration, case 10346, in [www.unilex. info] – UNIDROIT Principles – cases (by date). 64 Antonio BOGGIANO, “La Convention interaméricaine sur la loi applicable aux contrats internationaux et les Principes d’UN I D R O I T”, (1996) Unif. L. Rev. 2 2 6 . This opinion is also supported by Michael Joachim Bonell and other eminent authors, cf.: M.J. BONELL, loc. cit., note 7, p. 212 and 213.
THE UNIDROIT PRINCIPLES AND MERCOSUR COUNTRIES 411 needed flexibility for such application. However, in the practice of judicial litigation, given the scarce international vocation of the ME R C O S U R domestic and international legislations and the little creativity of case-law in matter of international contracts, we think that hardly any situation may arise in which, over and above the applicable national law, the judge will be led to perf o rm the “international test” with the aid of the Principles. However, should the MERCOSUR countries ratify the 1994 Inter- American Convention on the Law Applicable to Intern a t i o n a l Contracts (Mexico Convention), the creative and effective use of the Principles shall be assured by force of its Article 10, below: Article 10 In addition to the provisions of the foregoing articles, the guidelines, customs, and principles of international commercial law as well as commercial usage and practices generally accepted shall apply in order to discharge the re q u i rements of justice and equity in the particular case. At judicial level, for instance, the Principles were applied by an Australian court in 1997. The Federal Court, when applying the domestic law in a suit filed by an American company (Hughes A i rcraft Systems International) against an Australian govern m e n t agency (Airservices Australia), grounded on the violation of the principles of good faith and fair dealing in matters of bidding p ro c e d u res, decided to refer to the Principles to confirm its understanding under the light of international law. It thus declare d that the general obligation of good faith and fair dealing was not only s h e l t e red by several legal systems, but also recognized as a fundamental principle of international commercial contracts under Article 1.7 of the Principles 65 . On another occasion, the Principles w e re used by a Dutch court to enlarge the French law’s concept of good faith, applicable in the particular case. The dispute involved a contract for delivery of fish signed by a French seller and a Dutch purc h a s e r, subject to the 1980 UN Convention on Contracts for the International Sale of Goods ( Vienna Convention). Following the first delivery the purc h a s e r 65 Federal Court of Australia, Hughes Aircraft Systems International v. Airservices A u s t r a l i a, [1997] 558 FCA (30 June 1997), available online: Federal Court of Australia [http://www.fedcourt.gov.au/judgments/judgmts.html]. 30.06.1997 – Federal Court of Australia, nr. 558, in [www.unilex.info] – UN I D R O I T Principles – cases (by date).
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