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    Aula 03 - Pathological Clauses

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    Paulo Fernandes

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    (=). Wolters Kluwer Kluwer Law International Law & Business Source: Asbitraton Intemational, Vol 7 No. 4 (1881), pp. 365-388 Pathological Clauses: Frédéric Eisemann's Still Vital Criteria Benjamin G. Oavis(i) WHEN preparing this article, my office was being renovated. Inthe course of the informa ‘insgeciions ofthe Works by other members of the Secretariat, one ofthe assistants who has been with the ICG fer over 28 years advised me that | was workirg in the former office of Frege Eleemann Fredric Eizemann, who Colne the prrase ‘pathological clauses’ or ‘clauses pathologiques had a long and dstingu shed career atthe ICC 8s Secretary-General a tie then Cour of Arbitration (nou, ne international Cour! of Aratration). la his seminal 1974 article (2) Elsemann presented and analyzed a series of afbivalion cavses he calee trem ‘peas, lainted with various pathologies, thst he had taken from ni ‘Sark museum of erbittation. ‘What with cork museums and pears, | was stimulated to make a thorough search of the premises, Who could know what ches might be found?! did not fing the dark museum, Out | eit ind some pearls farm Internatione! arbitration which neve suracad since Fisemann’s tne 1. Eisomann’s Crtorla When the topic of pathological arbitration clauses is examined, itis useful atthe beginning 1 set out Eisemann’s cxtena as to the essential functions ofan araiation clause. These are our, renslated inte English from the original Frenen(3) "365" 0 ‘The firs, whichis common to all agreements, i to produce mandatory consequences for ie parton, 2 “The second, isto excuse tho intervention of state courts in the settement ofthe dispuies, atleast Selore the Issuance of tre awa, a ‘The thi, i 0 glve powers to the arbitrators to asoive tne disputes biel 20 ance between the pares, “) ‘The fourth, is to permit he puting in place of a procedure loacing under tne Gest conditions of efficiency {nd rapidity to the rendering ofan aware thats SuscopUDO of judicial enfoccoment ‘These four interconnected criteria, as discussed more fully Below, are vai today as they weve when E'semann orystalzed thinking on the subject (4) n many ways, these formulations ae tMe crown jewels of Essemann's ariel, They are a synthesis of the four pants any draften{5) af arbitration clauses, whines for ad hoe or insitutcna) arsivation, should nave ir mind as a6) decides an each word of ne tent Inte folowing sections, | examine sixteen arbitration clauses recently seen containing myrad pathologies wth gard to the essential functions. Is frtunate that many of these clauses wil Seem unusval to readers 2 creat to the eiforts of arbirstion clause dratters, either due to reflection o” biter experience, lo keep in mind Eisemann’s criteria My intention isto provide a basis for futher reflection as to het should be aveised is al ‘Steumstances in drafing the ariration clause ‘The next to sections examine aritration clauses seen in the last two years which, tog lessercr greater ‘extent ave presented certain iypes of pathologies The methodology Ihave ‘olowad is fst te aceon the arbitration clause, Then, to the extent possibie, | present the result nthe State Cour or belore the Avbivel Trbunal. Final. |retum to Eisemarn's catecia and highght where the exserta functions of he etbivation clause nave not boon respected, 966" 1 Lesser Pathology (a) What a diforence 3 ‘may’ makes A slant patnoicay is presented inthe following clause") The above clause is, on the ane hand, definitive ‘with regard to the place of arbitration and the applicant ofthe ICC Rules (shal) while, on he olher hond, the actual reference to arbitration (may be refered’ is less certain In tne case ofa vecalcivant gary, even Indefeteness in the reference to arbitration raises two concerns. Fist, faced with an objection to jursdicion, the Arbital Tabunal constituted inthe matter might have to {termine what ine intention of ihe parties was in using the ‘may’. The use of may’ could suggest something ther than mandatory ablation. Thus, the essential uncon ~ to produce mandatory consequences for the Pps - is missing onthe face of the clause. One can imagine thal numercus submesions on nis point end ‘hus costs forthe parlies and the need for a parla, interim, of final award, would appear icely wnere there was a recelcivent party Second, a party is encouraged by the indefinteness to seek a decision of a fecal court to interpret the arbiration clause eiter nih the intent o resist ar compe! arbtvation. in such a case, depending on the altitude towards areitration of the iew as applied by the local court, a party coud find isa with 2 preliminary ‘junction preventing i from proceading withthe arbitration sought, Recent. US Distnct Gourd?) wos faced ‘with ths language and determined thal such 2 clause provides for permissive arbitration unth one of the parbis chooses to invoke the aritaton clause. When such an election is made by @ party. inthe 1S District Court's view. then the arbitration becomes mandatory forthe parties Inte actual ICC arbtration, the party raising the jurisdictional objecton withdrew it ater this decision, Would such a decision, which i in line wit the sirang US federal py in favour of arbitration, be made by another lecai court in anotner countzy? Without going into a comparson of jurisprudence in other setings, Kis procedure.{12) ‘The judge inv tec the claimant to continue the aritraton before the ICC.(13) Thus, the abivation was able to proceed wit this assistance ror a natenal coun, However, the question is open 85 fo what would Neve Deen the consequences #anatter slates courts had been called on fo secice the point. Agel mipeeelsion In the arbitration clause should in all circumstances, be avoided ifthe arbiraton cause isto accomplish its fscental functons In relation to Eisemann's essential functions, the above clause is disfunctional with regard o (ithe fist function, a6 it does not clearly create mandatory consequences forthe parties due tothe lack of spectrcity a6, tothe arbival nsitution, (i) the second exserta lune, 25 sate court intervention prot tothe aware was ‘heeded fo cause the matter to proceed, and (s)he faurn function, because the beet corditens of eficiency ‘and rap dy for ine rencering ofthe award were not putin place with such an imprecision, AA second type of clause contains 2 ror-obvious substantial mprecssion:(?) Leaving aside the restiction of ‘rptration fo problems of execution of he contract, a subject Diet could be of great canced if he dispute arose about validity ofthe contrac,(s4) ne point at han isthe reference to atbivala” Tne defendant argued that ‘etbivator could mean a three-memner Arbitral Tribunal. The Gamant in this cae sought thal the matier ‘be heard by a scle arbtvator to be chosen by the partes pursuant tothe cause. In accordance with this reading of the clause ang Arie 23 ofthe ICC Rules tne paris have a 30 dey opportunity to select ine sole frbirator. Arce 2.3 states that (inthis case, the defendant rejected claimants proposals tory te Seo nine soe otivelorand aSsr%8 fete worst st" was ised he same meer ees sped in Aide 27 of ne ICC Rules. atic 2.2 stetes.() The Intemational Cour of Arbivaton, faced with te dispute as to the number of arbitrators raised alter the introduction ofthe Request for Avbiaton, had to look fst at Article 2 1 oF the ICC Rules which states in relevent part") Avice 2 1 provides thatthe partes are es to determine tne number and choice of stbatrators toeer the case, in tne sbove clause, the use of ‘rotator would meke «very dficul forthe International Cour of Arbitration to see ts way la organizing an arbitration with 2 tvee-mermber Avbival Trbural The commen wil of the pares 2s expreased inthe arivaton clause anpears fo opt spectically for an aratratar in the singular The confit between whal he detendan! may have intendec by including such language nis arbitration dause and wha! areutralinsttulion could understand by is wording leads toa stuation where the elendant’s stated assumption about whet ne clause meant was not te interelation paced on toy he insttation. The Inermational Court of Arttration would be unlikely to graft on to the clause the interpretation sought by the defencant~ en exercise in incorporation ey relerence sihich went again the apperent pia ‘meaning othe clause, which prevails Ifthe claimant hough it hac somehow sipped a point past the Gefendant at the tie of the negotiation ef the contract. one might worger estate cour woule er would nol follow tis view. Il'sole’ ar one’ hac been added, this apparent misunderstancing might have Geen avoided for the ICC in administering the arbitration or forthe stale court atthe time of enforcemart ofthe award. I ‘one or mora’ had been added, the Neviblity sought by the defendant wauia have Deen appareni on te face of the clause. ‘This dause i pariculary distunchonal as othe fourth Eigemenn function, sinoe it leaves coom ‘or a dispute 135 fo the numberof ab tratars and coulé lead to ancther interpretation by a state cour! atthe time of enforcement ofthe award (15) "979" (2) n what language(s) ts(are) the contract and translation? appears thal, together with the numberof drafts negotiated in the period up tothe sigring ofthe contract, the additonal comipicalion of te corivact eng drafiec in two langueges can create a geometicalincease In associates problems. ‘Thus, there ae a group of clauses which state, taken from the orginal Franch ‘place of aritation wil be Barcelona i (Party A) isthe Claimant anc Paris # (Party | is the Clsimeni (Emphasis added). (16) This In [eel does not cause specie problems in terms of tha setting in moter of the arccedure. Depending an who ‘5 the camant, the Iniemational Court of Arbivation contiems tne related place of arbitration under Avtcle 12 fof the ICC Rules (17) However, where such 2 cariracl ‘also drafted 2 Second language and signes By the ‘same parties on the same cay in the second language, the Soanish version as revansated ino Engish, ‘might say, place of srbtration willbe Barcelona i (Pariy A) the Defendant ane Paris (Party 8) the ‘Defendant (Emghasis added) (18) The cenfusien arses fam the misttansiation it ona dracon or he other, of the French ‘demanderesse’ (Claimant) and the Spanish 'cemancada' (Defendant). Eacn party. relying on its version, might not see the problem thai day and assume the close resamblance or "aux aris’ ofthe wards was correct. Buti wil come up inthe event o erotvalion proceedings. ‘This situation has been seen atthe International Cour af Araiation with, of course, no express provision as fo which ofthe two versions ofthe contract controls. In such a case, the International Court of Arbitration is ‘icely 0 fx 2 neuval site, nthe absence of any clear agreament onthe place of arbitraion. ifthe ArDial ‘Tribunal were fo decide the question, the place of arbivation would be changed accordingly. Thus, while the pparios nave red to olscourage raoid recourse fo aroiration oy Toresaeing the oher's home country a place ff asbiration they have instead ftalyvitated their efots through an unfortunate sip ofthe word processor ‘Tie clause i patiouledy vuineraole on tha fret Ecemann functon(marcatory consequences) ae the place of _afaation is not set as sought by the parties, Inthe context of an ad hoc arbivation, one Could wonder where ‘such an arbieton would be fixed.(18) The clause is also vulnerable on the fourth function a to efficiency ‘and rapidity leading fo the rendering of 2n_"372"| award, since the contracicory language makes any plsce ‘of arbitration selected notin conformity wit ene or both aibitration clauses (20) (0) Ad hoe and institutional arbitration in the same clause, or not? ‘Another example of pathology is where the definition ofthe disputes to be refered to arbitration leads to elternstve laws being applied and, even, diferent places of arbitration. Suen 2 defen ofthe disputes may also lead to a question as to whether the arbitration should proceed under the auspices of an Inston or through ad hoc ariation, For example, Sellers (A) and Buyer (B) entered a contract with the folowing arbitration clause:() The Sellers (A) and Supplior (C) nad tho folowing arbilvation clause (tanlatod into Englch}(*) One can understand the ‘900d intentions of tne drafers ofthe contrac arbiration clause between the Sellrs and the Buyer who ware. trying to tie the disputes, the applicable law, the place of arbitration, and the sition together in two related (@) Reference to arbitration? ‘The next cause presents 2 fLmvercifcuty of mprodsien. Translated into Englih tem tre enginal German slates (") can ofly nole that @ Luxembourg Court. orginally seised with @ Gaim fox damages, was presented withthe defence of lack of junsd ction based on the 76") allegation thet the cleuse was an aroivation Clause, The Luxembourg Court held that the Cause was an avolvabon cause, slating ‘Such a clause constitutes an arbitration clause defined as an agreement by which the pertes to.2 contract undertake, price to disputes arising, to submit io araitaton the diferences wrich arise between them under the contact (27) “Turning to Eisemanr's four essential functans, the clause s dis-unctional on the frst s te having mandstory consequences wih regard fo arbitration and second requting the intervention ofthe sate caurt por tthe Issuance of ne aware (t) Reference to two arbitral institutions in the same clause, or not? ‘The next cause lustrates the risks of combining provisions refering to two arbitral nsiturians in the same clause *) There ere at east Iie views ofthe above cause and its cerlain the darties would present at least hose: Fret, tha reference tothe Korean Commarcial Arbitration Tribunal by @ single arbitrator’ could be viewed as the selacton of an appointing authoniy forthe nomination of the Sola Matvatr Tor an arbivation under ihe auspices ofthe International Ceurt of Arbitration of the ICC. ‘A second aporcach n arqument, lacing reliance an the use ef ‘befae" inthe clause, could be thet the above ‘atbitration clause Is nat imied to having @ Kocean Commercial Arbiration Trbunsl a8 an appointing autnariy but rather that the parties intended to have 2 commercial arbivatin under the auspices of the Korean Commercial Arbiation Tribunal with the ICC Rules somehow being used a 2 suppletve choice 3! procedural Rules. The elerence fo the ICG Rules would not inthis theory, be a reterence to ICC arbitration ‘thio approach could be that the ICC Rules, purevant 0 Article 81 ofthe ICC Rus, state that Winere the parties have agreed to submit to arbitration by the International Chamber of Commerce, they sat Be {deemed thereby to have submitted pso facto tothe present Rules. Further to this argument, the roles of the Injernetional Ceur of Abivalion and the Secretariat defied inthe ICC Rules as well as special features such 2s the Terms of Reference under Aticie 12 are incorporated by reference in the above clause. The arbitration ‘would thus be in all respects an (CC arbiraton suDjec o said Rules and the references to Korean Commercial Abivation "377"| Tribunal are merely localizing within Secu! the place where the arbitration should occu, Under tit argument ‘Korean Commercial Aratration Tebunal in ho manner rofers to ‘pointing authonty ‘Whatever te arguments presented, the sole arbitfator faced with such a clauee, however appointed, nes @ sifficl task for @ paralintenm/or final award lo determine his jurisdiction. In this mater, the sole arbirator ‘ppeinled under the ICC Rules hela in an interim aware! that ne had jurisdiction. Probably al four ofthe essential unctions othe arbitration cause are placed in jeopardy by such a hybrid clause. The mandatory consequences for the partes are unclear as to where they are mandatory. A state Courts intervention with regare tothe interpretation of the clause on appointment of the approprate cole _rbitrator appears likely. (28) The powers of any sole arbirstor agported by whatever appointing authority {ould be signifcanty contasied Finaly, te condone for efficent and rapid rendoring ofthe award are not the best and the enforcement of any award could be atlacked on at easl one of these grounds. ‘Alast ganoral dantin the d ecussion of this cause is tho use by pottos of an spaointing authory whether for institutional 9 ed hac arbivation When parties choose such an appointing authority, they musi make sure ‘atthe appointing authority has the capabilty to make the appointment sought and tke willrgness to make ‘uch an appointment, I elter of these characreristes is absent, ne partes may find tremselves either with ‘an inappropriate appointment ar no appointment zt all A party may have fo selse a state court, passby at ‘he piace of arbivavan if alco datined n ine agreement in ofder to gel 29 appropriate apoointment made. A cifically that could have been avoided might create problems cus to tne lace of suicent attentan to tis point in making the selection of the appointing authorty (28) "The above stated clause 's particularly dis-unctenal on the Hird essential function, as whatever acbitrator named by wherever is faced with an extremely dificult preliminary point as 0 his powers, {@) The nonexistent institution ‘A further clause presents the ificuly of a lack of rasearch as to the instulons referred to. The clause, a6 translated from the exginal German, saies (*) With such a clause. there can be long debate 2s to whether tnere is a Chamber of Gommerca inthe city of tho Buyer. If hare ic guen a Chamber of Commerce, the {question could arise 2s to whether such Chamber of Commetos tas @ tiounal wich underiakes arbitration In adaiton inthe evant of several Chambers of Commerce inthe cy (presumably the ct-lis) where only ‘one has @tilounal, he question arises whether even that one Chamber of Commerce cauls have jarsaiclon ‘over the case i ight of the language ofthe cause creating @ defeult option where there is mote than ene. ‘Chamber of Commerce. One ean magine the above arguments being presentec to eny Chamber of Commerce inthe city seised withthe case, 2s well as tothe Intemational Court of Arbitation ofthe ICC. In ‘any case, the arbitral trounal seised with the case and the parties would probably expend substantial time on this preliminary peint of jursdictior flowing rom the warding ofthe clause before having the opportunity to aderess the merts ofthe dispute Inthe prosent case, the Intemational Court of Arbitration slowed the matter to proceed tothe Arbitral THounal {determine its own jurisdiction. The above stated ciause is partoulary cls functional as regards the absence of mandatory consequances for the parties (the frst essential function) and not proving the best conditions for an efficient and rapid rendering of the eward (the fourth essental function), @) Summary for the section ‘An Oregon Court was confronted withthe above-stated clause ina breach cf contract. fraud and declaratory Judgment action end, puisuart to 2 motion ia dismiss based on the causa, hel that ine agreerrent prowded bo for arbitration ana for chaice of forum The cout held the abivalion clause fo be enforceable. not fincing {evidence thatthe Agreement should be revoked. Tho regan judge also held tne choice of forum provision to be enforceable, nding the law did not support the pla nliffs contention thal ts enforcement would be Unreasonable an unjust. The Court held thatthe plambis has produced na evidence to suppor clam that lingation in Europe would be so gravely cfcul and incovenient thatthe pa mifs would for al practical purposes be deprved of thai day m court (36) This rving somewhat highlghts te nsk thal vecourse fo 3 Stale Court to consitue an arbtvaton clause may net lead to & clanfeation of the arbivation clause The Dlainits thus found themselves n Europe either in the Berin Court orin arbitration, These rtte’s were ‘wihcrawn from the nternatonal Court of Arbitration by the aartas pcr ta constiutan of ine Arpt! Tribunal = apparartiy {6 proceed before the West Berin Court, “The fst of Elsomann's essemal functions is weakaned as thera appear tobe few mandtory consequences for the partes with regard te subsidiary arbivation The secona essential function = potenialy waived as the {Cause might require a prececing stale-court intervention. The third essential luncton is made aleatory #6 the atoitreto’s powers care be argued 1a be potertaty piminated at any tme, cendering inoperative any hope ot fulfing the fourth essential function ef elficiency and repicy in tendering an enforceable award () Conciliation and arbitration for diferent disputes pursuant to the seme clause. Under clauses previously ciscussed in Section i the separate questions of the separation out of disputes and reference to canciiaton mere discussed. When these ara combina n are clause, insuimouniable problems are encourered. The following aritration clause, translated from the French, tates’) In he above clause the previous comments wit regard i the possibia consequences ef separating out cisputes into two éistinck procedures remsin generally applicable. A recalcitrant defendant could argue persuasvely thal the words, ‘isputes carcerning the mercnansise’reter tos delivery, packaging, price. qual. and conformity with spectications, not more. It couls go an to argue that eny dispute presented by claimant pursuant to De ‘Second paragraph isin acta fst paragraph aispute. Moreover, suppose that a state cour udge Vs seises with 2 request io inlervetthe clause. Wit the added twist of he cistinction between tha cisputes, one could fine thar to conceive that the slate court judge would simply ignore te distinction mace by the partes. 2 Judge tock a decision ntarpreting whet fas under what part ofthe arotration clause, one could mmmedctely See the defendant arguing that the disputes actualy refered to arbtalin fll under the interpretation as to what was incuded in the frst paragraph ‘Supocse, futher, that an arbitator (ether with or without the assistance ofan interpretation of a state court) 'S faced wih submissions as to Mis jnsciction. The issues presented being 80 fine, ne case woul likely have toe ergued all the way tough the merits for the atraar to be abla to decide whether ne has junssicvon Turning (9 Gisernann’s essential functions, the fst essential function is destroyed in relaon te the fst paragraph ofthe clause, since thace disputes do not lead to mandalory consequences. The thi essential function is weakened as the sibtvators' powers are so ereumscrbes, Finally, te conditene are far from ‘optimal forthe rendering ofan enforceable award, tavching on the heart ofthe fourth essential function (4) Dual attribution of jurisdiction or not? The following ad hoe arbitration clause is transated from the engine Frere") Here the lstessentallunction of mandatory consequencas is so several unfuliled as to frustrate tre hope {or ary arbitration in the absence of 2 rasconabie solution by the parties. (€) The floating arbitration ‘A urtier ad fos arbitration clause that has been noted states, a8 translated tom the French") This clause though shor, presents two major defects. First, there isthe question ofthe Arbical Tribunal The clause provides for na mechanism ta determine whether Avoiral Tibunal meens one of more than one areirstor. fer purposes of argument. ieans tree arbitrators, inthe event 2 recalcitrant defercant did rot propose & co.arbirator, the Cisimart would presumably nave to seek the appointment of @ co-atb trator on Sohal of te defendant by tne state court of te county ofthe defendant. One would lope thet the stale cour (Dut which. ‘state court?) would be amenable fo making such an appointment sromptly. Further as there sno place of arbitration, cermiting a reference tothe state court al the place of arbitration, 2 mechanism would have o be developed fo determine how the Chairman of the Arbitral Tribunal would be appomnted This covld be by the parties, but there is no time-iitfor such decision. If eppcinted by the co-aroirators, the same problem of ‘ime mts would be present. Possibly, a competent slate cout (the same ane as above in the defendants {country} could set suc time limits. This same state court coulé also appoint the Charman of tne Arbitel “Tribunal in the event of non-agreement ofthe partes or tha co-atbtatars. The probiem of having so much of ‘he mechanism for puting in piace ofthe arbitration degendent on the state courts isa glaring weakness Assuming the Arpitral Tribunal as been put in place, cnee it started to examine tha matter, and presumably eterminad the place of arbitrstion, t woul find thal he parties have restricted its pawers to ‘interpreiaian’ of the conlract. It might be argued that the worse of imitation Inthe Glauee pravent the arptretors from making fan award on damages, Presumably. asserting the _"383") Arbiral Tibunas interpretation, he winning ary right have to go {0 state cout to seek an aware Of darhages. Again, the state cour inlevention is substantial and due tothe cratting cf te arbitvation clause. (fthere had been a reference to ICC aroraton in the clause, the diffcultes as to the number of arbitrators and piace of arbitration could be resolved through the default mechanisms of Article 2 and Article 12 ofthe ICC Rules.) “Turning \o Eisemann’s essential functions, this clause is so fraught wih sks of delay forthe fist essential funtion that & does nat provide mandatory consequences forthe parties, The second eeseatial function is ‘efeated due to the need for so much ‘echnical assistance’ from the site courts before and alte ihe issuance of the aware. These probleme leave the otrer two functions (ararator’s powers and efficiency and rapiiy) oating ( Summary for the section ios arbies, Hommage A Frederic Eleamenn, Le Aricorum, ICC, H, Sealaert ane L. Marva, Les Ciauses ‘Comromssoires Pathotogiques, Revue de "Avbirage 1968 No. 1 Graig, Park and Paulsson. Part li Chapter 9, international Charaber of Commerce Arbitration 2ne Ea. (1890), =. Gallas, Quelques Observations sur la Redaction aes Clauses d/arbirage CIROI, Recuel Penant 1887 5. As this presentation is essentially about how not o craft arbitration clauses, drafters’ sttention is drawn to the several pubications on the suajeet of dreting arbivaun cizuses. See S. Bond, Mow to Draft an Arbitration Clzuse (Revisited), International Court ef Arbitration Bulletn, Vol. |, No.2 (Decemiver 1980). N Liner, rating the International Arbitration Clouse, The international Lawyer. Vel. 20, No.4 (7986), Craig, atk and Paulsson, supra Note 4 66. The masculine pronoun ‘he’ used in this discussion stands for ne" and ‘shen recognition ofthe growing ‘umber of women sering as ICC arbitrators, acing as counsel, and drafing arbitration causes. Any cispute of whatever nature arising out of orin any way relating to the Agreement or Io is construction ‘or tuthimanis may be referred to arbitration Such aroivation shal take placa in USA and shall proceed ‘accordance with the Rules of Conciation and Ariration af the Intemational Camber of Commerce 7 Craver Coal Export Conteany, Ine. Taiwan Power Company, USOC Easter Dstret of Kentucky, Cv ‘Action Na 80-11. (Maren 5, 1980), See Bond, syora, Note 5 © See Clune: 1978981, 1881-999, 1984:947, 961, Scatert and Marie, spa, Note 4 10 Arde 7 ofthe ICG Rules slates: Where there is no prime facie agreement between the parties to arbitrate or where there isan agreement out tdaas not specty tne international Chamber of Commerca, and ifthe Defendant does not file an Answer within the period of 20 days provided by paragraph tof Aricle 4 or refuses arotration by the International Chamber of Commerce, the Cisimant shall be informed thatthe fibration cannot proceed. 11 Societe Asland e! Sooiéte European Eneray Corporation, YGl ée Paris, reprinted in Rewe de TAvoirage, 1980.No. 2 12 CGriginal French states: ‘Atendu que les partes, parla clause itgieuse, ont menifesté sans équivoque leur voionte de recourr& Tarbirage pour regler toutes les dilutes reas de axgcution de leurs conventions; ‘Que Si existe & Paris, une ‘Chambre de Commerce offcielie’ la Chambre de Commerce Internationale coiganisme de orot privé, constius marifesterent le centie cariiage reconru § Pars par Ie preique des relations miemetionelas, tant er France qu’ 'étranger, pour organise les procedures ce réglemenis des ilérends par a voiearbivale, quelles que soient la nature du lige Ip rationale des partes en cause ov la Toi appicabe su lige ‘Attend quen convenant ce eoumetre leur diferend & arbitrage devant la Chambre de commerce officielle { Paris, les partes ont @ evidence, dans leur commune vaiona, designé fa Chambre de commerce imernationale & Pats, comme crate crganisateur de leur procedure dareirege ibid 43. For he mission of cooperation of the slate judge discussing this and other cases, see also G. Pluyete, Le paint de vue di jugo, Rowue de ioivrage, 1990, No.2. + fy dispute arising out ofthe execution ofthis cartract which the contracting pares fil te salt in an amicable way shal be eeties bythe arbitration cour ofthe inetnational Chamoer af Gammeree In Pars in ‘ccordance with the rules af the aration. Decis on of te arbitrators fal and binging for bath partes, 14 On scope of clauses, see Bone, sure, Note 8 and Craig, Park end Pelsson, sua, Note 4. at Pet Sropteré S"fitere the pares have agreed that he disputes sal be seid by a sole arbitatr, they may, by agrecrent nominate rin sonitmation by ine Gout tre parce ol eo to narvnate a eae arbestr sehin 30 days rn fete when he Garrats Request fox Ab baton has bev cotsmurrcated Toe Strerpady, he sole arbiter sal be gopomted by te Cour op eputo maybe sets Ey 2 sole solver or by thee arbtralors In he flowing Ailes the wort ‘ariratar senatos 9 single arbitat: cr hee eters asthe case aye Ina Cour ot bration dose not teases Spates Insofar she pris shal ot hove proses “horse appoints of contri the appoinirents 0. arivatrs in seaorsarce wh the provisos oS Sete (Emphses acces) 15" See Convention on he Recognition and Eniorcomert of Foreign tial Awards, New York, Jure 1, 1300, arile VN) 16, Orginal fonsh Varcitrege se derculers# Barcelona sila pare cemanerese est (Parte A) #4 Pars siieparte donanderesse est (Parte 8)” 7" Rei 12 tates. -The ave of artration shal be fied by the itematonl Cou of Ariston, unless agreed upon oy tre paies + "Grigial Spanish el eraltaj se dosarotera en Barcslone sn pane eemancada as (Pare A) yon Pars site parte demanded es (Pale 8)” 40 inan Eset West soting (or European roa, the mechanism in the European Convention on iteationl Commas Arovaton ef 1961 stile WV() might be used. See D Hescher European Convenor {nteratonai Commer! Arpraton oF 185, Commentary Yearedok Corsercal Abiraton (1990), Vol XY, tgs 835-08. Otero, pesumatly the Afra buna’ would detonate placa of bon 3b" Brother pot sean, whic 0 warning lo the awyer wo comes the dispute the eo ition Gf tne arireton proceacings. sho wansion ote conte ven bythe cet ti etl evenly several Ses that th chen has proades the grt contrac and ne rgh ansiaon, Translators sometimes orgot ite shrases such an Zur when. nthe cote ofthe arbraton couse, can chonge te locaton of he Sibitation andthe local pubic polcy under whi the aration gows foward rot caught prt the tna Snrd te whole prococue canbe for nought as ot having beeh conducts in corformiy wth he rbration Snveerent Thos porte ary of concam wth a detauling Oeteccant Ph afeences renting fom the presen Conta! for *OS-elaled disputes shal be seted according to the abivaton and egal provisions governing th salers FOB sonvact rom ts supper for he cares) n question CIF related dpuias shale seed n Jepan sccoding Japanese lew Sit dferences resuting fem the present Contant sha be nay sted Geneve acording to the rules «ot coneliaton and abtraton atthe intemational Chamoer of Commerce by three arivsiors maceardance Sith the said oles. The appa iw wil ete awn forse n Alger (2) 21" Onginal French: Tous aferonde secoulat au prbsen: Conta (ss) caron anche detnaivorent & Genovesuvantleegament de conciaton ot darutrage de a Chambre de Consmercs Internationals par toi aries contomément ce reglement Cp rot applicable ses Je dat.en mgveuren Algae itself. Uncer the LOIP, inthe absence of 2 clause or inthe absence of an agreement of he pares on the rhame of avatars ~ 97 of coarbsrators fr the choice ol the president — each party can seise tha judge ofthe place of arbitraton who wil designate the missing arhirater or ab vators In the above clause, in an Stbiration under tne ICC Rues, pursuant to Arbee 2.1 ofthe ICC Rules (Insofar as he parties shal rot have provided otherwise." the parties have agreed on @ procedure for nomnatien by the Swiss courts of GENEVA and LAUSANNE. Thue, the wage at the plece of aration wouls only intervene f the GENEVA ‘and LAUSANNE judgas refused io appoint arbivators. The GENEVA and LAUSANNE judges might reuse to ppoint due to the fact hat thers is enother cometent appoining autharty (the other jude] present inthe Gauss In such ease, however te place of afuivaton being Swiss Romande, ncusing several cantons, the ‘Guestion is presented as to which edge or judges @ party should seise as the jude at ihe place of eration, See Lalve, Poudre st Reymond, La Drot de /arbirage, Eaivons Payor (1982) p 328-330 on Artie 179 of the LDIP and Bucher, Le Nouvel Arbitrage international en Suisse, Esivons Helbing et Lichterhaln (1988), poe. 58-68 5S" Accord, see Lalve, Pousret, Raymond, supra, Note 32. p. 330. See a pragmatic aparaach by analogy of Eisemann, supra, Note 2, pp. 134—136, "This contract shal be governed by German law place of performance is Berlin (Wes!) Jurisdiction shall be fone of Bevin (West), Subsidatiy, he partes agree thai disputes arising in eelation to ths conlrec shal be Settled by the Arbival Tebunal of ine International Cnamoer of Commetce. The arbitral proceedings shall ake place in BemiSwizerland, Inthe afiiral proceedings, German substantve and formal (Se) aw shall be Spplad, The award atthe Arbiral buna ie inding and fal (34) 34. Orginal German reads ‘Auf diesen Verag fincet deutsches Rach! Anwendung. Erflungsot ist Bevin West), Gericntsstand sel Bern (West) sein. Millswe'se vereinbaren die Parteien, dass Stietigketen im

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