Originally from World Arbitration And Mediation Review (WAMR)

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THE APPLICATION OF TRANSNATIONAL

RULES IN ICC ARBITRAL AWARDS
Yves Derains*

I. INTRODUCTION

The application of transnational rules1 to international
transactions and to the disputes resulting from them has been the
object of an ongoing discussion among scholars for more than 40
years as a part of the debate on the Lex Mercatoria.2 The very
existence of transnational rules, their legal status, their content,
and their role are disputed.

For many years, international arbitrators, in particular those
acting under the auspices of the International Court of Arbitration
of the International Chamber of Commerce (ICC) have been
applying transnational rules in their awards in order to resolve
disputes submitted to them.3 International arbitrators appear to
pay little attention to the accuracy of the terminology they use
when they depart from the application to the merits of the dispute
of the law of a particular State, referring for example to “general
principles of law,”4 “lex mercatoria,”5 “usages of international