On The Application Of The "General Principles Of International Commercial Contracts" In International Commercial Arbitration

The UNIDROIT Principles of International Commercial Contracts(hereinafter referred to as the "UPICC")is international legal norm of contracts with the nature of "soft law".Specifically,UPICC is equipped with characteristics of international practice,general legal principles,model law and restatement,which cannot be directly legally binding.At present,it has been generally recognized that UPICC can be applied as the applicable law for substantive disputes in international commercial arbitration.In addition to the parties' choice of UPICC based on party autonomy principle,the arbitral tribunal may also apply its discretion to determine disputes referred to UPICC.The application of UPICC according to party autonomy is manifested in two situations: the parties 'explicit choice or implied choice.If the parties expressly agree to choose UPICC to solve disputes,the arbitral tribunal shall fully respect it.However,if parties explicitly agreed to apply "general legal principles" as the applicable law to merits,the arbitral tribunal can regard this agreement as an implied choice to UPICC and apply it.In terms of the scope of application of UPICC,in order to avoid conflicts with the contract laws of various jurisdictions as much as possible,UPICC give priority to the application of mandatory rules and give a broad interpretation of this concept.Also,the arbitral tribunal can specifically apply the provisions of UPICC to determine the validity of the contract,resolve the non-performance and the termination of the contract so on according to the parties' choice,so as to resolve the disputes.As far as the arbitral tribunal's discretion is concerned,this article uses both empirical and standardized research methods to explore how arbitrators can directly determine the application of UPICC.The research includes not only the latest arbitral awards made by the main international arbitration institutions,but also the latest arbitration rules and relevant arbitration legislation on how the arbitral tribunal determines the substantive law.Some arbitrators use the arbitration rule of like “failing such designation by the parties,the arbitral tribunal shall apply the law which it determines to be appropriate” to determine the applicable law to the merits of the case in hand.However,the standard of appropriateness shall be clarified case by case.The connection between International commercial arbitration,which is inherently autonomous,and International commercial legal norms usually presented in the form of "soft law" shall be valued.In order to improve the international influence of Chinese arbitration institutions,the arbitration rules have been revised,especially involved with the application of internationally uniform legal norms like UPICC in commercial arbitration.Although the number of cases referred to UPICC in China is rare,with deeply development of international arbitration,UPICC may provide new solutions for the application of Chinese arbitration substantive law towards internationalization.