Originally from World Arbitration And Mediation Review (WAMR)

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GENERAL PRINCIPLES OF LAW IN

INTERNATIONAL COMMERCIAL ARBITRATION
HOW TO FIND THEM – HOW TO APPLY THEM
Klaus Peter Berger*

I. INTRODUCTION

There is a wide gap between the academic attention devoted
to the subject of general principles of law in international
arbitration and their practical significance. While much has been
written on this subject, there are relatively few published awards
in which a tribunal has actually applied general principles of law,
let alone decided a case solely on the basis of such principles. The
reasons for this are obvious: in the vast majority of cases,
arbitrators have to apply the law chosen by the parties, and the
parties’ choice of law typically relates to domestic laws. Also, the
contract itself often provides for the rights and remedies of the
parties. Therefore, disputes before international arbitral tribunals
are not so much about finding and applying the law as about
contract interpretation.

Yet, there is ample room for the application of general
principles of law in international commercial arbitration. Such
application entails two steps: first, easy and quick access to the
black letter text of and comparative references for those general
principles of law which are relevant to any given case (Section II);
and second, a profound knowledge by arbitrators and counsel of
what general principles of law are, what their content and
meaning are, and how they have been applied by other arbitral
tribunals in the past (Section III).

II. HOW TO FIND GENERAL PRINCIPLES OF LAW: THE TRANSLEX PRINCIPLES

A. The Law-Finding Problem

Even tribunals that are willing to apply general principles of
law most often refrain from doing so for one simple reason: lack