## Facts

- A Korean clothing seller and an Iraqi buyer entered into three international sales contracts for clothing.
- The contracts contained an ICC arbitration agreement providing for arbitration in Paris and used nonstandard language referring to the “laws and regulations” of the ICC in Paris.
- The seller delivered goods; a dispute arose concerning performance and/or payment, and the seller commenced ICC arbitration.
- The buyer challenged jurisdiction, invoking Jordanian Law No. 35 of 1983, asserted to invalidate agreements that bar Jordanian courts from disputes related to bills of lading or carriage of goods.
- The seller argued that lex mercatoria, including the CISG, should govern as the proper law of the contracts.

## Issues

1. Whether the tribunal had jurisdiction where the buyer asserted a foreign statute rendered the arbitration agreement null or inoperative for disputes connected to carriage of goods and bills of lading.
2. Whether lex mercatoria (including the CISG) could serve as the exclusive proper law of the contracts, or whether the tribunal had to select a single national law.
3. How to determine the law governing the arbitration agreement when the clause did not clearly identify a national law.

## Decision

- The tribunal issued an interim award confirming it had jurisdiction to proceed with the arbitration.
- The tribunal rejected the argument that Jordanian Law No. 35 of 1983 invalidated the ICC arbitration agreement under the law applicable to the arbitration agreement.
- The tribunal declined to treat lex mercatoria (including the CISG) as the sole proper law of the contracts.
- The tribunal held the claims in the arbitration should be governed by one proper law of contract and that concurrent application of different national laws should not occur.
- The tribunal determined that a national law had to be designated to address issues not regulated by the CISG (including unjust enrichment and limitation of claims).

## Legal Principles

- An arbitral tribunal may uphold jurisdiction where the arbitration agreement remains valid under the law governing the arbitration agreement, notwithstanding a foreign statute asserted to restrict forum selection for carriage-related disputes.
- Lex mercatoria, even when incorporating the CISG, may be insufficient as an exclusive governing law where the dispute may require rules on matters outside the CISG’s scope (e.g., unjust enrichment and limitation/prescription).
- Where parties have not clearly chosen a governing law, the tribunal may select a single national proper law to govern the parties’ claims and to fill gaps not covered by uniform sales law.
- The law governing the arbitration agreement may be determined through conflict-of-laws analysis (commonly by reference to the law most closely connected to the arbitration agreement, such as the law of the seat or the contract’s governing law).

## Conclusion

The interim award confirmed the tribunal’s jurisdiction despite reliance on a foreign anti-arbitration statute and required the designation of a single national proper law, treating lex mercatoria and the CISG as potentially applicable but not an exclusive substitute for national law when additional non-CISG issues may arise.


Interim Award in ICC Case No. 6149, XX Y.B. Com. Arb. 41 (1995)