Arbitration and the New Rules Applicable to International Sales Contracts under the United Nations Convention

Abstract

whilst the procedural rules and those relative to the enforcement of arbitral awards are being harmonised, substantive rules, without which the judges and arbitrators cannot decide disputes, remain at odds. To fill this gap, arbitrators searching to free themselves from national rules may in future seek to utilise the Vienna Convention on Contracts for the International Sale of Goods of 1980. How will they do it?1 The role of arbitrators, the manner in which they are accustomed to accomplishing their mission, and their great freedom in the choice of the substantive law applicable, are three elements which will lead arbitrators frequently to utilise the Vienna Convention, and they will no doubt apply it in a more homogenous fashion than national judges, particularly since the role of trade usage, which is of considerable importance in arbitration and international commerce in general, is well defined by the Convention. #### (1) The Role of the Arbitrators > ‘It is tempting and habitual to compare the judge and the arbitrator, by insisting on the fact that the former acts in the name of the state and in the interest of the law, whereas the latter is chosen by private citizens, acts in their interest and often prefers equity to the law.’2 Such concepts as arbitration and conciliation, and arbitration and ‘amiable composition’, continue to evolve together in the major arbitration regulations, in the minds of those who use them, and in practice. The aggressiveness exhibited in certain arbitrations has not yet destroyed the image of friendly settlement that arbitration enjoys. That arbitration requires an agreement between the parties, its secret nature, that it is the method of choice of many associations for resolving disputes between their members, the apparently lesser degree of formality of its procedures – all of these factors contribute to giving arbitration an aura that it does …