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1316 In order to enhance uniformity and predictability in the application of the general duty to act in accordance with good faith and fair dealing unter Article 1.7 PICC, arbitrators should look to other arbitral awards and decisions of national courts as well as to the legal doctrine when applying Article 1.7 PICC. By referring to legal doctrine and case law, it is more likely that arbitrators will not be influenced by their own legal background when applying the general duty of good faith and fair dealing unter Article 1.7 PICC.
1317 It is advocated that arbitral tribunals should, wherever possible, apply good faith on the basis of a codified non-national law text, such as the PICC. This is because the PICC are a codified instrument which have been specifically developed for international commercial contracts and on which a body of case law and doctrine can be built. The application of good faith will therefore be much less uncertain than when applying it as a general principle of law.
1318 However, if an arbitral tribunal decides, or is bound, to apply good faith as a general principle of law, it should give priority to the application of the specific manifestations of the general principle of good faith. (1.). If there is no specific manifestation of the general principle of good faith, then an arbitral tribunal may formulate a new specific manifestations of the general principle of good faith (2.). When applying the specific manifestations of the general principle of good faith, arbitral tribunals should refer to case law and doctrine to enhance certainty and predictability with respect to the application of the general principle of good faith (3.). References may be made to the role, scope and content of good faith unter other national and non-national laws in order to establish the role, scope and content of good faith as a general principle of law (4.).
1319 MAYER'S main critique with respect to the application of good faith as a general principle of law centres on the use of this principle as the source of already existing rules under contract law. He laments that every equitable solution could be imposed on the basis of the principle of good faith, thereby solely accentuating the moral element when in fact there is an existing specific rule that has been violated which could be invoked instead.
1320 If general principles of law are deemed applicable to the parties' contract, international arbitrators should first look for a more specific application of the principle of good faith, i.e., one that has been deduced from the principle of good faith in a large number of legal systems (e.g., the duty to mitigate damages) and then apply it to the facts of the case.
1321 To paraphrase WIGHTMAN, arbitrators should not 'jump to the very high level of generality of good faith [...] [and] leave behind "middle range" arguments which capture better the reason for the intervention'. In other words, good words should not be used 'as a cloak with which to envelop other doctrines' and should not be employed to subsume 'many contract doctrines [...] under a single amorphous doctrine of good faith'. Indeed, as argued by BRIDGE, '[t]he problem with a concept that explains everything is that it explains nothing'.
1322 As stated by FOUCHARD/GAILLARD/GOLDMAN, 'the principle of good faith is particularly used when understood as providing the basis for more specific rules, which may in turn become general principles. This is the case, for example, of the principle that a party cannot contradict itself to the detriment of another'.
1323 If there is so suitable existing specific manifestation of the general principle of good faith, an arbitrator may create a new specific rule on the basis of the general principle of good faith but, in doing so, should formulate such rule as specifically and precisely as possible.
1324 The role of good faith as a general principle of law is less developed and lacking in certainty due to its uncodified nature. Arbitrators should thus look to other awards of arbitral tribunals and legal doctrine in order to establish a predictable approach.
1325 In addition, by referring to legal doctrine and case law relating to good faith as a general principle of law, it is more likely that arbitrators will not be influenced by their own legal background when applying the notion of good faith.
1326 In order to establish the role, scope and content of good faith as a general principle of law, it may be necessary to examine its role, scope and content under other national laws or non-national laws.
1327 Indeed, the examination of the role and scope of good faith under other national and non-national laws may be helpful in order to ascertain the role, scope and content of good faith as a general principle of law, given that general principles of law are principles of law common to leading national legal systems and that the solutions adopted in some non-national laws may represent the approach taken by a majority of States.
1328 If an arbitral tribunal is directed to consider trade usages by the applicable substantive law, lex arbitri, or institutional arbitration rules, it should not - in the author's view - apply the general principle of good faith on this basis.
1329 It is submitted that a strict conception of trade usages should be followed, according to which only repeated, industry-specific practices - and not general principles - can constitute trade usages. As previously stated with respect to trade usages under the CISG, whilst there may be a trade usage which is derived from the principle of good faith, the general principle of good faith is too vague and imprecise to constitute a trade usage itself. The strict view adopted in ICC Case No 13954 of 2007, namely that the general principle of good faith should not be applied as a trade usage, is accordingly the preferable approach to take.
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