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Dec 06, 2001

General Principles of Law—More Predictable After All?

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Partner Emmanuel Gaillard (Paris-International Arbitration) authored an article entitled "General Principles of Law—More Predictable After All?," published in the Dec. 6, 2001 issue of the New York Law Journal.

The validity of choosing general principles of law—also frequently referred to as transnational rules or lex mercatoria—to govern an international contract is widely accepted in international commercial arbitration today.

In the first place, the parties to a contract may prefer not to have their contract governed by a particular national law and, instead, elect to have general principles of law apply. This option is now recognized in most legal systems to be binding on an arbitral tribunal. In the second place, it is increasingly accepted that an arbitral tribunal may choose to apply lex mercatoria when the parties are silent as to the governing law. As result of the progressively more regular recourse to general principles of law in international contracts, general principles of law are becoming increasingly specialized and coherent in arbitral practice.

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