Richard j howarth I. Introduction

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1998 ICC Arbitration Rules

The ICC International Court of Arbitration is not governmental, but a creation of the International Chamber of Commerce.212 The ICC Rules of Conciliation and Arbitration (the Rules) 'provide a code that is intended to be self-sufficient in the sense that it is capable of covering all aspects of arbitrations conducted under the rules, without the need for any recourse to any municipal system of law or any application to the courts of the forum'.213 Hence in the same manner as for the UNCITRAL Model Law, in an arbitration governed by the Rules 'one can talk of arbitration which is "transnational" or "a-national"';214 and as discussed earlier in the context of the Deutsche Schactbau case,215 the a-national character may extend to the substantive law of the contract.216 However, any doubt that may have lingered concerning legitimacy of choice by the arbitral tribunal of the Lex Mercatoria as the substantive law has been extinguished with the revised version of the Rules given effect on 1 January 1998. Article 17(1) provides that 'the parties shall be free to agree upon the rules of law to be applied by the Arbitral Tribunal to the merits of the dispute. In the absence of any such agreement, the Arbitral Tribunal shall apply the rules of law which it determines to be appropriate'.

Accordingly, by significantly amending the previous version of the Rules217 to now permit arbitral application of the 'rules of law' deemed appropriate, the ICC has ensured that 'an arbitrator does not have to select choice of law rules but can proceed to a direct selection of the governing law'.218

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