Originally from World Arbitration And Mediation Review (WAMR)

Preview Page

GENERAL PRINCIPLES OF LAW IN

INTERNATIONAL COMMERCIAL ARBITRATION
– CHALLENGING THE MYTHS
Emmanuel Gaillard*

I. INTRODUCTION

The debate over the question of whether arbitrators can
resort to general principles of law rather than the legal system of
a given State in order to resolve issues related to the merits of a
dispute has been obfuscated by questions of vocabulary. The very
meaning of the word ‘general’ is ambiguous: are the principles
‘general’ because they operate at a level of generality such that
they are limited to broad precepts such as good faith or pacta sunt
servanda, or are they ‘general’ because they are accepted in a
large number of legal systems around the world? The confusion
is all the more persistent that certain principles are general in
both meanings, while others are ‘general’ only in the latter sense.
Good faith is a broad precept and is recognized in virtually all
legal systems. A party’s duty to mitigate its losses is a very
specific rule pertaining to the assessment of damages; it is
nonetheless ‘general’ in that it is accepted in the vast majority of
legal systems. Only the second meaning comes into play when
one considers the arbitrators’ discretion to resort to general
principles of law.

Another source of confusion stems from the fact that the early
proponents of the application of ‘general principles’ in arbitration
chose to treat this question in the context of the existence of a ‘lex
mercatoria.’ It would be misleading, however, to equate ‘general
principles’ with ‘lex mercatoria.’ The doctrine of ‘lex mercatoria’
itself is intrinsically ambiguous in that it sought to identify rules
which are perceived as ideally suited for international
commercial transactions – something that national laws were