Editor’s Picks: Six Previously Unpublished ICC Awards in the ICCA Awards Series 2025

Six recently published ICC awards are now available in the ICCA Awards Series. The published awards deal with a broad range of issues, including the extension of arbitration agreements to non-signatories, the interpretation of vague choice-of-law clauses, damages calculation under the CISG, amiable composition and equity in arbitration, validity of forum-selection clauses, the effect of non-assignment clauses on arbitration agreements, and arbitral jurisdiction over set-off defenses.

For example, in an award dealing with a dispute brought by an Italian buyer against a UAE seller and its parent company over undelivered steel coils, the sole arbitrator found that the non-signatory parent company was bound by the arbitration agreement despite not having signed the contract. The arbitrator applied the Swiss-law theory of interference—Switzerland being the seat of arbitration—as the parent company had negotiated the contract, provided the final draft of the arbitration clause, and conducted all breach-and-settlement negotiations through its broker. The arbitrator also considered that the same result could be reached under Article 8 of the CISG, because a reasonable person in the buyer’s position would have legitimately understood that the parent company’s behavior showed its intention to be bound by the arbitration clause.

The same award addressed the interpretation of a vague choice-of-law clause, which provided that the contract was governed by “international rules of arbitration”. Applying the closest-connection test, the arbitrator noted that the domestic laws of the countries where the parties were based were most closely connected to the facts, but found that the parties had intentionally excluded the application of their domestic laws. The arbitrator concluded that the CISG was the appropriate governing law, as both countries were CISG signatories and the CISG represented the “international rules” the parties sought to apply, with Swiss law (as the law of the seat) governing matters not regulated by the CISG.

In another award, the sole arbitrator ruled on a commission-fee dispute between a Canadian representative and a Belgian principal under representative agreements containing an arbitration clause referring to the application of “normal and customary practice in international trade and to general principles of equity internationally applied”. The arbitrator considered that the parties through this provision had conferred on the arbitrator the power to decide in equity (amiable composition), and that the applicable national law need not be determined in light of the parties’ choice that no national law should govern their relations. The arbitrator relied on the 2016 UNIDROIT Principles of International Commercial Contracts as reflecting those international trade usages on which consensus exists.

In a partial award on jurisdiction involving a US supplier and Turkish distributor, the sole arbitrator rejected the respondent’s challenge to Californian choice-of-law and forum-selection provisions. The respondent argued that these provisions violated principles of independence and impartiality because they favored the claimant’s home jurisdiction. The arbitrator held that principles of independence and impartiality relate to the decision-maker, not the chosen law or seat, and that there is no requirement in international arbitration that a neutral country’s law and seat be chosen.

The published arbitral decisions also shed light on jurisdictional issues. In a partial award addressing set-off, the sole arbitrator held that she had jurisdiction to hear a set-off defense based on claims arising under a separate contract containing a CIETAC arbitration clause, while the underlying contracts provided for ICC arbitration in Zurich. The arbitrator explained that under the Swiss principle le juge de l’action est le juge de l’exception, recognized by the Swiss Federal Supreme Court as applying in international arbitrations seated in Switzerland, tribunals have jurisdiction to hear set-off defenses even where the set-off claim falls under a different arbitration agreement.

More ICC awards are available by accessing the ICCA Awards Series on Kluwer Arbitration.