NOT FOR PUBLICATION
How to Fill Gaps in International Private Law Conventions:
Conflict of Laws or General Principles?
Ulrich Drobnig, Hamburg
I. Introduction
International conventions on aspects of civil or commercial law can never be
complete: They deal only with an isolated topic – such as sales, leasing, factoring.
And while they can and must deal fully with their central topic, inevitably they will
not and they cannot deal exhaustively with more marginal aspects. Sometimes the
drafters had intended to deal fully with a special feature, but ran into difficulties – an
unbridgeable diversity of opinions or merely lack of time at the expiration of a preset time limit for final negotiation.
These two specific features combined at the conclusion of the final deliberations on
the UN-Convention on contracts for the international sale of goods 1980 in Vienna
(CISG). The Convention (ratified so far by no fewer than 75 states) deals at two
points with interest for unpaid sums of money:
Art. 78 provides: “If a party fails to pay the price or any other sum that is in arrear,
the other party is entitled to interest on it, without prejudice to any claim for damages
recoverable under article 74.”
And the corresponding provision in art. 84 (1) says: “If the seller is bound to refund
the price, he must also pay interest on it, from the date on which the price was paid.”
Neither art. 78 nor art. 84 par. (1) fix the rate of interest. In fact, all attempts to close
this gap that had been undertaken in the final days of the negotiations in Vienna,
failed.1
While interest for delayed payment is usually only a minor point which is discussed
at the end of a judicial or arbitral proceeding, nevertheless not infrequently the
amounts involved may sum up considerably. Both the amounts to be paid as
purchase price for international transactions and the duration of judicial or arbitral
1 proceedings may have the effect that high amounts pile up. Some relevant arbitration
proceedings involved amounts of interest of some hundred thousand US-$.
In the past 30 years, several hundred court decisions and arbitral awards have dealt
with the issue of interest. However, none of the varied approaches taken by the
courts and by arbitrators in the “member states” of the UN-Sales Convention has
prevailed. Also the opinions of commentators in general and of some internationally
renowned specialists are divided.
The present writer believes that the relevant practice of international arbitrators,
although not easily accessible, deserves special attention for two reasons: Factually,
because of the broader and more varied practical situations with which international
arbitral tribunals are confronted; and legally, because of the broader view which
arbitrators often use to take. In addition, a new modern approach to supranational
commercial law provides a key to a convincing solution by offering a commercially
sound approach.
II. The two Avenues for Filling Gaps in CISG
Many writers and virtually all courts take the liberty of disregarding the clear and
unequivocal hierarchy of subsidiary sources which the UN Sales Convention has
established for filling gaps in the text of this instrument.
CISG art. 7 par. 2 offers two avenues for the solution of problems “governed by this
Convention which are not expressly settled in it”: They are “to be settled in
conformity with the general principles on which it is based or, in the absence of such
principles, in conformity with the law applicable by virtue of the rules of private
international law.”
This hierarchy of the subsidiary sources for matters “governed by this Convention
which are not expressly settled in it” is well considered and seeks to preserve the
uniformity of the Convention as far as possible beyond the letters of its text.
As set out in the Introduction (supra I), two provisions (art. 78 and art. 84 par. 1)
expressly provide that the debtor of a monetary obligation (practically, the buyer
2 according to art. 78 and explicitly the seller under art. 84 par. 1) are obligated to pay
interest on any amount of money owed to the other contracting party. In fact, this
obligation is not fully regulated since the Convention in neither case fixes the rate of
interest rate.
In my opinion there cannot be any reasonable doubt that the debtor’s obligation to
pay interest is a matter that is “governed by this Convention”;2 merely the interest
rate is “not expressly settled in it”.3 Consequently, the interest rate is to be “settled in
conformity with the general principles on which it [i.e., the Convention] is based”.4
Three decades have passed since CISG was agreed in 1980. First decisions applying
it were rendered in the late 1980s; however, extensive and consistent judicial practice
did not develop until the early 1990s. Practically therefore, experience by courts and
arbitrators is now available for almost 20 years – of course, more so in the countries
that ratified CISG in the 1980s and 1990s than in newcomers since 2000.
III. Practice of Courts and Arbitral Institutions
The practice of courts and certain institutionalized arbitral bodies is placed here on
the same level – in spite of the obvious institutional differences that exist between
these bodies. The common denominator is the high degree of uniformity in applying
the law as distinct from the practice of ad-hoc arbitrators.
1. Courts in Europe
A broad review of court practice in eight European countries reveals by which
method the courts in various regions of Europe have filled the gap with respect to the
rate of interest left open in CISG articles 78 and 84 par. 1.
Courts in Germany5, Italy6, the Netherlands7, Switzerland8 as well as in France9,
Croatia10 and Hungary11 have disregarded the Convention’s prescribed hierarchy of
sources. In none of the some 50 decisions, the courts have attempted to base their
decision on general principles on which CISG is based, as prescribed by the primary
alternative in art. 7 par. 2 CISG. This primary source has not even been mentioned.
Instead, the second, and secondary, source, i.e. the conflict of laws approach, was
3 applied. In other words, the interest rate was determined according to the law
governing the contract of sale. In the 27 member states of the European Union, this
governing law can be chosen by the parties.12 If the parties have not chosen the law
to be applied to their sales contract, the law at the seller’s ordinary residence governs
the contract of sale.13
However, there is one remarkable exception that deserves special mention. In May
2003, the Supreme Economic Court of Belorussia rendered two decisions in a
litigation between a US-American seller and a Belorussian buyer, a state enterprise.
This state enterprise was condemned to pay the outstanding purchase price plus
interest to the American seller. The court invoked art. 7.4.9 of the UNIDROIT
Principles of International Commercial Contracts (UPICC). The interest rate was
fixed upon the basis of information given by the Belorussian State Bank; according
to this information, in March 2003 the interest rate for short-term US-$ credits had
amounted to 13,4 %, and the judgment rendered in May 2003 awarded this interest
rate to the American plaintiff.14 One may speculate on the source of inspiration for
this innovative decision by a court in a country which in many other countries is
regarded with suspicion, due to ignorance. Perhaps the American lawyers who
probably were employed by the plaintiff had happened to realize that the UNIDROIT
Principles would be useful for their client’s case.
2. Courts and arbitral institutions in the Americas, Australia and China
a) Argentina. – Three decisions of first instance commercial judges from 1991 and
1994 have reached reasonable results, although on a vague basis. The earliest pays
lip service to the general rule that the rate of interest is to be determined by the lex
contractus, here the law of Ohio; this law, however, was not applied but rather a kind
of lex mercatoria.15 A similar recourse to “old usages and customs” is to be found in
two other decisions from 1991 and 1994 in cases where foreign exporters claimed
interest on unpaid claims for purchase prices from the insolvent Argentine purchaser.
In both cases, the prime rate for US-$ was granted to the foreign plaintiffs which, the
court said, is “internationally known and used,” even though “contractually not
agreed.”16 In a later case from 2002, involving an Argentine seller’s claim against a
Uruguayan buyer for payment of the purchase price, an Argentine second instance
4 court applied CISG, but with respect to the claimed interest recurred to Argentine
law as governing the contract.17
b) United States. – It appears to be very controversial, according to which law under
CISG the rate of interest is to be determined. In 1994, the following case was brought
before the U.S. District Court of New York: An Italian buyer of – as it turned out –
defective – machines who had cancelled the contract and claimed repayment of the
purchase price, was held to be entitled to interest on the already paid sum of the
purchase price. Due to the gap in CISG, the court “in its discretion” granted the rate
of interest for American Treasury Bills.18 Ten years later, in 2004, another U.S.
District Court refers to an article in a Law Review which sketches no fewer than nine
different suggestions for solving the dilemma, especially: the law governing the
contract; the law of the creditor’s place of business; the currency of payment; trade
usages; the general principle of full reparation of damage; and the lex fori.19 The
District Court applied the lex fori, including its conflict rules. According to the
applicable conflicts rule of Illinois, the Illinois legal rate of interest of 5 % was
applied.20
c) Australia. – One Australian case deserves to be mentioned – not so much for its
intellectual contribution, but for two external reasons: The Malaysian defendant
buyer was condemned to pay no fewer than US-$ 348.000 as interest. And in spite of
this amount the court did not indicate the legal basis for its decision.21
d) China (People’s Republic). – It is difficult to find a basis for the vivid practice of
the Chinese International Economic and Trade Arbitration Commissions (CIETAC).
The application of the rules of CISG is based on brief, but clear considerations. The
stronger is the contrast to the considerations of the arbitrators with respect to the rate
of interest. The interest rates were set at rates between 6 % and 8 %; occasionally a
rate of 9 % is granted for amounts in US-$ – however, no reasons are given or even
indicated; the rate of interest appears to be a matter of discretion.22
3. Interim account
Before turning to the important and vivid arbitral practice, a short interim balance of
court practice is useful. The picture that can be derived from court practice is – as
could be expected – not quite uniform for the almost 20 countries whose case law has
5 been reviewed. The great majority of courts in Europe invokes the secondary
alternative of CISG art. 7 par. 2, i.e. the conflict of laws approach for determining the
rate of interest for the payment of interests under international sales of goods and
they choose for this purpose the lex contractus. No attempts are made to justify this
practice in the light of art. 7 CISG which clearly designates this approach as the
secondary solution. Worse, even if the courts and probably the majority of writers
choose a conflict-of-laws approach, I am afraid that they have not chosen the
appropriate conflicts rule. Only two decisions of the Belorussian Supreme Economic
Court have directly chosen the approach, which I regard as correct, namely invoking
art. 3.4.9 of the UNIDROIT Principles. And a reasonable result, although by
invoking a vague legal basis was also achieved by the Argentine commercial judges.
By contrast, the practice of the Chinese Foreign Trade Economic Arbitration
Commissions appears to be based on the discretionary application of Chinese law, i.e.
the lex fori.
IV. Arbitral Practice
The following analysis of international and national arbitral practice on international
sales and related contracts is based on the analysis of some 90 awards. These awards
have been rendered mostly in arbitration proceedings conducted under the rules of
the International Chamber of Commerce in Paris; but also relevant awards of
national institutions, especially at chambers of commerce have been covered.
Roughly, four major approaches have been used by arbitrators.
1. Lex contractus
It will not come as a surprise that some 20 awards (i.e., a little less than 25 %) adopt
the approach of the courts in Europe (supra III 1) by applying the law governing the
contract of the parties. That is usually done without explanation or justification,
especially if there is a choice of law by the parties.23 Similarly, absent a choice by the
parties, if the lex contractus is determined on an objective basis, mostly by looking at
the characteristic performance under a contract of sale which is that of the seller.24
One arbitral court thought that the application of the lex contractus is preferable to
6 that of the law at the seller’s place of business, but without giving a reason.25 In a
note, Y. Derains, an experienced staff member of the International Chamber of
Commerce, criticized the award; he prefers to look at the currency involved and its
rate of inflation.
In some countries, the issue of interest is in part intertwined with procedural law, so
that issues of qualification may arise. In a Canadian-Indian construction case the
arbitrators were asked to apply, according to an Indian conflicts rule, for the periods
before and during the arbitration procedure French law (!) as lex fori; since however,
according to French law that is a matter of substantive law, in the end Indian law was
applied.26 This case illustrates the complications that may be caused by applying
conflict rules.
In some cases, the arbitrators determined the interest rate according to the lex
contractus, although the currencies involved differed from the currency of that law.27
One arbitral court at least expressed doubts with respect to the application of the lex
contractus and would have favoured the currency of the contract involved “in special
cases”; however, in the specific case both approaches led to the same result.28
2. Lex fori
Only very few arbitral awards have applied the lex fori.29 This reluctance of ICCarbitrators is justified since most of the controversial transactions are not connected
with either Paris or France.
3. Law at the Creditor’s Place of Business or the Place of Payment
About a dozen arbitral awards fix the interest rate by recourse either to the creditor’s
place of business or to the place of payment. These two connecting factors, while not
identical, mostly coincide. Neither of these is – contrary to the lex contractus or the
lex fori – a merely general category of the conflict of laws. Rather, they point to the
specific act of payment, either to the person of the receiver or to the point of payment.
a) Law at the creditor’s seat. – In two cases have arbitrators of the International
Chamber of Commerce given reasons for determining the rate of interest according
to the law at the creditor’s place of business. In one case, the arbitrators invoke a rule
7 of “international law” according to which the victorious party of an arbitration
proceeding may claim damages for the damage caused by delayed payment of a
monetary claim; since this damage arises at the creditor’s place of business, it must
be compensated according to the market conditions of that country. In the given case,
a rate of 8 % interest was held to be adequate.30 A similar result was achieved in
another case in favour of a French plaintiff: The French rate of interest was applied
since the plaintiff would have invested the money owed to him in French currency in
a French commercial bank.31
Several other arbitrators have come to the same result – but without indicating the
reasons for their choice. If such sellers’ claims for payment of the purchase price
were declared to be subject to the seller’s law,32 the result coincides with the result
reached under the lex contractus –approach (supra II), but on a different basis. There
is no coincidence of result, however, in the reverse situation, when after avoidance of
the contract of sale the buyer demands repayment of the purchase price from the
seller.33
b) Law of the place of payment. – Two proceedings before an Austrian institutional
arbitration board dealt with claims for interest of US-$ 250.000 and DM 346.000,
respectively. The arbitrators expressly held, that gaps in CISG must be filled
according to the general principles of the Convention rather than by conflict rules.
One of the general principles of the Convention being that of full reparation of
damage, a creditor who typically is doing business on the basis of bank credits, is
therefore entitled to the same rate of interest for credits, which he has to pay for bank
credits in the currency or currencies of the litigated contract.34
4. Currency of Payment
About 15 arbitral awards have determined the rate of interest by referring to the
contractual currency. In many cases, the same result has been achieved indirectly by
those awards that determined the rate of interest by reference to the law at the
creditor’s place of business or the place of payment (cf. preceding no. 3). This clearly
outnumbers those awards that use the conflict of laws approach (supra no.s 1 and 2).
The facts and the holdings of a few significant arbitral awards should be presented.
In a case from 1992, an Italian seller, after avoidance of the contract, demanded
8 damages and interest from the Finnish buyer; the latter had not paid the purchase
price that had been fixed in German marks. After having reviewed various
alternatives for fixing the rate of interest, the arbitrator considered that
“the rate of interest is closely bound up with a definite currency. It would be
inconsequent in computing the delay interest for an agreed [purchase] price in a
stronger currency to take into account the interest rate in a country with a weak
currency and high inflation and therefore a high rate of interest … . For this reason it
is not correct to look at the law governing the contract, the lex fori or the place of
payment.”
The plaintiff invokes the German bank rate and the arbitrator allows this.35
The main points of the preceding award are confirmed by a later ICC-award of 1998.
After running into difficulties, the parties of a long-term sales contract, a
Liechtenstein general distributor and an Italian merchant, had terminated their
distribution contract and agreed upon its liquidation. Contractual currency was the
US-$. Since the contracting parties were Europeans, the rate of interest was
determined according to the three-months LIBOR for the US-$ plus 1 %.36
In a dispute between a Cypriot seller and a Cypriot shipping line, which against
instructions had delivered sold goods to the Libyan purchaser, the seller sued the
shipping line. It demanded damages for breach of the contract of transportation,
which was subject to Swiss law. However, the arbitrators regarded it as inadequate to
apply the Swiss rate of interest since this applies only to payments of Swiss francs.
Applying “reasonable economic standards”, for an obligation in US-$ an interest rate
of 8,8 % was held to be adequate.37
Brief mention also deserve two awards of the Arbitration Board of the Hungarian
Chamber of Commerce of 1995. Both deal with sales to Austrian buyers. In the first
case, the Hungarian seller had avoided the contract because the Austrian buyer had
not furnished the contractually agreed payment guarantee. Although Hungarian law,
as the seller’s law, governed the contract, the arbitrators held the Austrian shilling to
be relevant for determining the rate of interest. The reason given is convincing: the
Hungarian rate of inflation at the time was 20 % as against 5 % for the Austrian
shilling. It would be inequitable to allow the Austrian buyer to enjoy an interest rate
of 20 % - i.e., four times the inflation rate of the buyer’s home country.38 Nine other
awards of arbitrators have rendered awards along the same lines.39
9 The trend to determine the rate of interest according to the currency of the payment
owed was also strongly supported by recent academic restatements of international
and European contract law. This is true especially for the UNIDROIT Principles of
International Commercial Contracts (UPICC) of 1994/2004.40 According to art. 7.4.9
par. 2 UPICC, the interest rate is the average bank short-term lending rate to prime
borrowers for the currency of payment. At least one court41 and several arbitral
bodies have applied this rule.42 The European Draft Common Frame of Reference of
200943 contains an equivalent rule (III. – 3:708 par. 1); and this has been applied in
one case.44
V. Conclusions
The summary overview provided in Parts II – IV, while not exhaustive, is intended to
provide a fair picture of the very different approaches of judicial and arbitral practice
in important jurisdictions. Which conclusions can be drawn from it?
1. In Continental Europe (the United Kingdom is not a party to CISG) the courts
almost unanimously apply the law governing the contract of sale or similar contracts.
Unless the parties have chosen the applicable law, the law governing a sales contract
is held to be the law of the seller’s country since the seller – rather than the buyer –
performs the characteristic performance. This means that also the buyer’s main
obligation, namely to pay the purchase price, is governed by the law at the seller’s
place of business. This makes sense in the critical situations of late payment or nonpayment covered by CISG art. 78: the creditor will look for credits at its bank in
order to bridge the gap caused by the buyer’s delay or default. The costs of this credit,
i.e. the interest rate charged by the seller’s bank, must be borne by the buyer.
2. Matters are different in the reverse situation: if a sales contract is not or cannot be
performed by the seller, but the buyer had already paid, partly or fully, the purchase
price, and after avoidance of the contract claims repayment of the purchase price
(CISG art. 84 par. 1). According to the majority view, the buyer’s claim for
repayment is subject to the law governing the sales contract, i.e. the seller’s law.
However, is it really adequate to apply the seller’s law on the rate of interest,
10 although it is the buyer who had made payment and may have to use bank credit at
the interest rate at his place of business?
3. Is the interest rate of the seller’s place of business adequate, if the parties had
agreed on a purchase price in a currency other than the seller’s domestic currency?
Those arbiters who dealt with this issue, have replied in the negative. Rightly, in my
view, they admitted interest at the rate of the currency agreed by the parties.
4. Most convincing is the rule that is directly supported by about 15 arbitral awards:
the rate of interest depends upon the currency which the parties have agreed for their
monetary claims. Economically, the interest rate is a function of the currency: the
stronger the currency, the lower the interest rate; and vice versa.
Indirectly, usually the same result is achieved by those arbitral tribunals that regard
the law at the seat of the creditor or the law of the place of payment as decisive.
Each of these three alternatives is neutral, since no contracting party is disadvantaged.
Recent informal proposals for international sets of commercial rules, especially the
UNIDROIT Principles for International Commercial Contracts 2004 (art. 3.4.9
par. (2)) and the European Draft Common Frame of Reference (art. III.-3:708 of
2009) have adopted them. The UNIDROIT-Principles have already been applied by
almost a dozen of arbitral awards45 and even an ordinary court.46 The relevant
European Principles were adopted in at least one case.47
5. The rule supported here (supra no. 4) can also be cast in the form of a rule of the
conflict of laws: The rate of interest of a monetary claim is governed by the law of
the currency of that claim.
11 Notes
1
Cf. the account by Schlechtriem, a member of the German delegation,
Schlechtriem, Einheitliches UN-Kaufrecht (Tübingen 1981) 93 s.
2
CISG art. 7 par. 2.
3
CISG ibidem.
4
CISG ibidem.
5
Sup.App.Ct. Frankfurt a.M. 18 Jan.1994, NJW 1994, 1013, English summary: in
J.L. & Com. 14 (1994 – 1995) 201 ss. and Behr, The Sales Convention in Europe.
From Problems in Drafting to Problems in Practice: J.L. & Com. 17 (1998) 264 –
291 (287 s.). – Sup.App.Ct. Düsseldorf: 10 Feb. 1994, RIW 1994, 1050 (1051),
English summary: Behr (supra) 279 s.; 28 May 2004, IHR 2004, 203, IPRspr.
2004 no. 37 p. 93 s., and 22 July 2004, IHR 2005, 29, IPRspr. 2004 no. 39
p. 101. – Sup.App.Ct. München 2 March 1994, RIW 1994, 595 (596); English
summary: Behr (supra) 280. – Sup.App.Ct. Hamm 8 Feb.1995, IPRax 1996, 197
(198); short English summary: Behr (supra) 282 s. – Sup.App.Ct. Koblenz 31 Jan.
1997, RIW 2003, 172. – Sup.App.Ct. Karlsruhe 20 July 2004, IHR 2004, 246,
IPRspr. 2004 no. 38 p. 97. – Sup.App.Ct. Hamburg 25 Jan. 2008, IHR 2008, 98
(102).
6
Trib. Pavia 29 Dec. 1999, Corriere Giuridico 2000, 933; Trib. Padova 31 March
2004, Giurisprudenza di merito 2004, 1065; broad German summary: IHR 2005,
33; Trib. Forli 9 Dec. 2008, CLOUT case 867.
7
App.Ct. ´s-Hertogenbosch 2 Jan. 2007, CLOUT case 828; First Inst.Ct.
Amsterdam 15 Apr. 1994, NIPR 1995 no. 230; First Inst.Ct. Amsterdam 15 May
1996, NIPR 1996 no. 405; First Inst.Ct. Roermond 6 May 1993; Ital. summary:
Dir.Comm.Int. 9 (1995) 450 – 451.
8
Federal Court 28 Oct. 1998; extract: SZIER 1999, 179 – 182 (181 f.); Ital.
summary: Dir.comm.int. 16 (2002) 415 s. – From the rich practice of the Cantonal
courts, only a selection can be mentioned here: Comm.Ct. Aargau
25 Jan. 2005, IHR 2006, 34. – Cant.Ct. Nidwalden 23 May 2005, summary:
SZIER 2006, 196 (202); also already 12 Nov./3 Dec. 1991, summary: SZIER 1998,
81. – App.Trib. Ticino 15 Jan. 1998 (summary: SZIER 1999, 189 (190)); Ital.
summary: Dir.Comm.Int. 16 (2002) 413 s. – Cant.Ct. Valais 27 May 2005,
12 summary: SZIER 2007, 152 ss. (154). – Comm.Ct. Canton Zürich 25 June 2007,
IHR 2008, 31 (33). – Cant.Ct. Zug 12 December 2002,
http://www.globalsaleslaw.org/content/api/cisg/urteile/720.htm.
9
Cf. C. Witz , Droit uniforme de la vente internationale de la marchandise: Recueil
Dalloz 2005, 2281 (2289 with references); App.Ct. Paris 7 Oct. 2009,
http://www.cisg-france.org/decisions/071009v.htm.
10
High Comm.Ct.: 26 July 2005; abstract: CLOUT Case 919; – 24 Oct. 2006;
abstract: CLOUT Case 917; – 26 Sept. 2006; abstract: CLOUT Case 918.
11
Ct. Capital Budapest 24 March 1992, reported by Vida, IPRax 1993, 263 s.
12
Regulation (EU) no. 593/2008 on the Law governing contractual obligations of
17 June 2008 (Rome I) art. 3.
13
Rome I (preceding n.) art. 4 par. 1 lit. a).
14
Sup.Econ.Ct. Belorussia 20 May 2003 (7-5/2003 und 8-5/2003); Ital. summaries of
both decisions: Dir.Comm.Int. 2007, 435; cf. also ibidem 468.
15
Juzgado Nacional de Primera Instancia en lo Comercial no. 7 of 20 May 1991,
http://www.unilex.info/case.cfm?pid=1&do=case&id=14&step=FullText.
16
Juzgado Nacional de Primera Instancia en lo Comercial no. 10 of 23 Oct. 1991,
http://www.unilex.info/case.cfm?pid=1&do=case&id=184&step=FullText.
17
Cervecería y Maltería Paysanda S.A. v. Cervecería Argentina S.A., Cámara
Nacional de Apelaciones en lo Comercial de Buenos Aires 21 July 2002; Engl.
translation: http://cisgw3.law.pace.edu/cases/020721a1.html; CLOUT Case 636.
18
Delchi Carrier, SpA v. Rotorex Corp. (U.S. District Court, N.D., New York 9 Sept.
1994), 1994 WESTLAW 495787 sub no. 14; Ital. summary: Dir.Comm.Int. 9
(1995) 459 f. This issue was not dealt with by the appellate court (Delchi Carrier
SpA. v. Rotorex Corp., 71 F.3d 1024 (2d Cir. 1996)).
19
Thiele, Interest on damages and rate of interest under art. 78 … CISG:
http://www.cisg.law.pace.edu/cisg/biblio/thiele.html.
20
Chicago Prime Packers, Inc. v. Northern Food Trading Co. (N.D. Illinois 2004):
IHR 2004, 156.
21
Downs Investment Pty. Ltd. v. Perwija Steel SDN BHD ( S.Ct. Queensland 17 Nov.
2000): http://cisgw3.law.pace.edu/cases/001117a2.html;
Ital. summary: Dir.Comm.Int. 16 (2002) 437 – 439. In the decision on defendant’s
13 unsuccessful appeal, the issue of interest was not mentioned, cf. Downs Investment
P/L v. Perwaja Steeel SDN BHD, [2001] Q.C.A. 433 (12 Oct. 2001).
22
The text is based upon English translations of the full texts of the awards. For
brevity’s sake, only the CLOUT-numbers of the abstracts are indicated here:
CIETAC: 12 Jan. 1996, CLOUT Case 678; 14 Feb. 1996, CLOUT Case 855;
15 Feb. 1996, CLOUT Case 854; 31 May 1996, CLOUT Case 853; 6 March 1997,
CLOUT Case 712; 4 Apr. 1997, CLOUT Case 713; 11 Apr. 1997, CLOUT Case
852; 30 Apr. 1997, CLOUT Case 714; 2 June 1997, CLOUT Case 865; 18 Aug.
1997, CLOUT Case 681; 8 Oct. 1997, CLOUT Case 860; 12 Apr. 1999, CLOUT
Case 684; 21 May 1999, CLOUT Case 771.
23
ICC arbitral award no. 6230 (1990), Coll./Rec. ICC Arbitral Awards I (1991 –
1995) (1997) 86 (98); ICC arbitral award no. 6283 (1990): ibd. 100 (107); ICC
arbitral award no. 6531 (1991), ebd. 143 (145); ICC arbitral award no. 7114 (1994),
ICC Int.Court Arb. Bull. 15 no. 1 (2004) 70; ICC arbitral award no. 7565 (1994),
http://www.unilex.info/case.cfm?pid=1&do=case&id=141&step=Keywords; ICC
arbitral award no. 8402 (1997), ICC Int.Court Arb. Bull. 15 no. 1 (2004) 87; ICC
arbitral award no. 9333 (1998), Coll./Rec. ICC V (2001 – 2007) 575 (582 f.).
24
ICC arbitral award no. 4327 (1984), YB Comm.Arb. X (1985) 52; ICC arbitral
award no. 7197 (1992), Clunet 1993, 1028 (1033), Coll./Rec. ICC III (1991 – 1995)
(1997) 500 (505); ICC arbitral award no. 7878 (1997), ICC Int.Court Arb. Bull. 15
no. 1 (2004) 68; ICC 7987 (1996), ebda. 81; ICC arbitral award no. 10274 (1999),
Coll./Rec. ICC V (2001 – 2007) 229 (245 f.).
25
ICC arbitral award no. 6754 (1993), ICC Int.Court Arb. Bull. 15 no. 1 (2004) 87,
Coll./Rec. ICC III (1991 – 1995) 600 with critical note by Y. D.[erains] 603
(604 s.).
26
ICC arbitral award no. 8175 (1996), ICC Int. Court Arb. Bull. 15 no. 1 (2004) 83.
27
Arbitration Court of the Chamber of Commerce Hamburg 21 March 1996, RIW
1996, 766 (771) (not printed in NJW 1996, 3229 ff.), YB Comm.Arb. XXII (1997)
35 (43); Ital. summary: Dir.Comm.Int. 12 (1998) 1104 (1106).
ICC arbitral award no. 8402 (1997), ICC Int. Court Arb. Bull. 15 no. 1 (2004) 87.
14 28
ICC arbitral award no. 8611 (1997),
http://www.unilex.info/case.cfm?pid=1&do=case&id=229&step=FullText,
second-last para.
29
ICC arbitral award no. 8123 (1995), ICC Int. Court Arb. Bull. 15 no. 1 (2004) 82
sub no. 140; ICC arbitral award no. 8264 (1997), ebd. p. 86.
30
ICC arbitral award no. 7331 (1994), Clunet 1995, 1001 (1005) with approving note
D.H.[ascher]; Coll./Rec. ICC III (1991 – 1995) (1997) 592 (596).
31
ICC arbitral award no. 7986 (1999), Coll./Rec. ICC V (2001 – 2007) 533 (556).
32
ICC arbitral award no. 7197 (1992):
http://www.unilex.info/case.cfm?pid=1&do=case&id=37&step=Keywords;
ICC arbitral award no. 8644 (1997), abstract: ICC Int. Court Arb. Bull. 15 no. 1
(2004) 91 f.; http://www.unilex.info/case.cfm?pid=1&do=case&id
=1014&step=Keywords; International Commercial Arbitration Court, Chamber of
Commerce of the Russian Federation: a) 9 September 1994;[Italian summary]:
Dir.Comm.Int. 12 (1998) 1081; b) 10.2.2000,
http://www.unilex.info/case.cfm?pid=1&id=1079&do
=case, http://www.unilex.info/case.cfm?pid=l&do=case&id=1079&step=Abstract
sub 3.3.3.
33
ICC arbitral award no. 7531 (1994): http://www.unilex.info/case.cfm?pid=
1&id=139&do=case; International Commercial Arbitration Court, Chamber of
Commerce of the Russian Federation: 15 April 1994, [Italian] summary:
Dir.Comm.Int. 12 (1998) 1080.
34
International Arbitration Board of the Austrian Chamber of the Economy (Sch4366) of 15 June 1994, RIW 1995, 590, and (Sch-4318) of even date, RIW 1995,
592. In a critical note Schlechtriem pleads for applying the law of the currency
involved (p. 594) – which is almost identical to the solution of the arbitrators.
Italian translations of the awards in Dir.Comm.Int. 9 (1995) 487 ss. with note Mari.
Cf. also ICC arbitral award no. 7153 (1992), Clunet 1992, 1005; Coll./Rec. ICC III
(1991 – 1995) (1997) 443 (critical note D.H.[ascher] 446).
35
CCI arbitral award no. 7585 (1992), Clunet 1995, 1015, Coll./Rec. ICC III (1991 –
1995) (1997) 606 (609); CLOUT Case 301. In a note Derains approves in
particular that the arbitrator used the discount rate rather than the statutory interest
15 rate since the latter rarely reflects the factual inflation (Clunet 1995, 1032,
Coll./Rec. ICC III 613).
36
ICC arbitral award no. 8908 (1998), ICC Int. Court Arb. Bull. 10 no. 2 (1999) 83 ff.
37
ICC arbitral award no. 6573 (1991), Coll./Rec. ICC III (1991 – 1995) (1997) 382.
38
Arbitration Court of the Hungarian Chamber of Industry and Commerce of 17 Nov.
1995 (VB/94124). Extracts in Clunet 1995, 1056 with approving note SeidlHohenveldern; Ital. summary: Dir.Comm.Int. 12 (1998) 1092. In the same sense:
idem 5 Dec. 1995 (VB/94131); summaries: SZIER 1996, 141; and Dir.Comm.Int.
11 (1997) 752; Clunet 1995, 1056 with approving note Seidl-Hohenveldern.
39
Arbitral awards no. 5904 (1989), Coll./Rec. ICC II (1986 – 1990) 387, 389. –
No. 6219 (1990), Coll./Rec. ICC ibidem 428. – No. 6527, Coll./Rec. III (1991 –
1995) 185. – No. 6653 (1993), ibidem 512, 518); however, on procedural grounds
this part of the award was later annulled by a French court: Cour d’appel Paris
6 Apr. 1995, Clunet 1995, 971 with note Loquin, who agrees with the procedural
aspect of this decision, but shares the substantive opinion of the arbitrators. –
No. 7388 (1996), ICC Int. Court Arb. Bull. 15 no. 1 (2004) 76. – No. 8521 (1997),
ibid. 88. – No. 8769 (1996), ICC Int. Court Arb. Bull. 10 no. 2 (1999) 75; Ital.
summary: Dir.Comm.Int. 15 (2001) 189. – No. 8817 (1997), Coll./Rec. ICC IV
(1996 – 2000) 415. – No. 10696 (2001), ICC Int. Court Arb. Bull. 15 no. 1 (2004)
94.
40
M.J. Bonell, An International Restatement of Contract Law. The UNIDROIT
Principles of International Commercial Contracts (ed. 3 2004) 441.
41
Sup.Econ.Ct. Belorussia 20 May 2003 (supra n. 14).
42
ICC arbitral award no. 8128 (1995), Coll./Rec. ICC IV (1996 – 2000) 440;
agreeing note D.H.[ascher] 443 ss. (444). – Arbitration Tribunal of the Chamber
for Commerce and Industry Lausanne: 25 Jan. 2002, Ital. summary: Dir.Comm.Int.
18 (2004) 170; as well as 21 Jan. 2003, Ital. summary: ibidem 182; – National and
international Arbitration Tribunal Milan 1 Dec. 1996, Dir.Comm.Int. 15 (2001)
186 (187). – International Commercial Arbitral Tribunal of the Chamber of Trade
of the Russian Federation (340/1999) 10 Feb. 2000 (supra n. 32 in fine). –
International Commercial Arbitral Tribunal of the Chamber of Trade of the
Russian Federation (11/2002) 5 Nov. 2002, Ital. summary: Dir.Comm.Int. 18
16 (2004) 176 – since the contracting parties agreed on both German and Russian law,
the Arbitration Court applied as “international rules” the UNIDROIT Principles,
including art. 7.4.9; the same arbitral tribunal (100/2002) of 19 May 2004,
Unif.L.Rev. 2006, 202 (204); Ital. summary: Dir.Comm.Int. 18 (2004) 176; this
arbitral tribunal remarked that Russian CC art. 395 contains a rule similar to
UNIDROIT-Principles art. 7.4.9. – Arbitral Tribunal of the Chamber of Commerce
Stockholm 29 March 2005, Ital. summary: Dir.Comm.Int. 21 (2007) 448; Internet:
http://www.investmentclaims.com.
43
Principles, Definitions and Model Rules of European Private Law. DCFR (Outline
Edition 2009) 251.
44
ICC arbitral award no. 8402 (1997), ICC Int. Court Arb. Bull. 15 no. 1 (2004) 87.
45
Supra n. 42.
46
Supra n. 41.
47
Supra n. 44.
17