Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Tushar Kumar Biswas

I. Sources of private international law

The rules of private international law in India are not codified in a single instrument, but are scattered over different enactments. Some rules have also evolved by judicial decisions. National laws, including both statutes and case-law, are the most important sources of private international law in the Indian context, although statutory law has been slow to develop.

1. Major legislation

Sections 13, 14 and 44-A of the Code of Civil Procedure 1908 (Act No 5 of 1908, henceforth CPC) contain rules for the recognition and enforcement of foreign judgments and ss 9–20 deal with the question of jurisdiction of the courts. Section 5 of the Indian Succession Act 1925 (Act No 39 of 1925) prescribes rules relating to domicile and →succession to both movable and →immovable property. The Negotiable Instruments Act 1881 (Act No 26 of 1881) has a chapter (Chapter XVI) on relevant rules on private international law. The Companies Act 2013 (Act No 18 of 2013) contains provisions with respect to foreign →companies. Citizenship provisions of the Constitution of India as well as the Indian Citizenship Act 1955 (Act No 57 of 1955) provide guidance about the determination of the nationality of a person and as to when a person is to be considered a foreigner. Chapter XXII of the Patent Act 1970 (Act No 39 of 1970) deals with matters concerning international title arrangements. Apart from the provisions on insolvency in general, the Presidency Towns Insolvency Act 1909 (Act No 3 of 1909) and the Provincial Insolvency Act 1920 (Act No 5 of 1920) contain provisions concerning the insolvency of individuals or companies having relevant foreign connections. Part II of the Arbitration and Conciliation Act 1996 (Act No 26 of 1996) deals with the enforcement of p. 1certain foreign awards and, in effect, deals with awards to be enforced under the New York Convention of 1958 (Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3) and the League of Nations (Geneva) Convention on the Execution of Foreign Arbitral Awards of 1927 (Geneva Convention of 26 September 1927 on the Execution of Foreign Awards, 92 LNTS 301).

Codified personal laws as well as secular statutes govern most matrimonial matters. These laws lay down jurisdictional rules, but are silent on choice-of-law matters. Even the Foreign Marriage Act 1969 (Act No 33 of 1969) and the Special Marriage Act 1954 (Act No 43 of 1954) do not prescribe choice-of-law rules, despite the fact that they were enacted with the specific object of dealing with conflicts arising from mixed marriages.

The Indian Evidence Act 1872 (Act No 1 of 1872) contains specific provisions with respect to the application and ascertainment of foreign law. It also provides for situations in which courts can take judicial notice of foreign law and contains guidance as to how presumptions in respect of foreign law are to be applied.

2. International conventions

A treaty does not become a source of law in India simply through its ratification by parliament. This is true, in particular, with regard to matters involving the rights of private parties. A treaty provision does not have force of law until it has been implemented in municipal law by a statute or statutory provision.

In the field of arbitration, India is a signatory to the League of Nations (Geneva) Convention on the Execution of Foreign Arbitral Awards of 1927 as well as to the New York Convention 1958. The Arbitration and Conciliation Act 1996 gives effect to these conventions. Another area in which a multilateral treaty is a direct source of private international law is the →carriage of goods by sea and air. In order to give effect to the Convention for the unification of certain rules relating to international carriage by air signed at Warsaw on 12 October 1929 (Warsaw Convention, 137 LNTS 11), the Carriage by Air Act 1972 (Act No 69 of 1972) was enacted. India has also ratified the Montreal Convention (Convention of 28 May 1999 for the unification of certain rules relating to international carriage by air, 2242 UNTS 309). The Montreal Convention has been incorporated into the Carriage by Air (Amendment) Act 2009 in India.

Likewise, in order to give effect to the so-called Hague Rules agreed upon at the International Conference on Maritime Law in Brussels in 1924 (International Convention for the Unification of Certain Rules Relating to Bills of Lading signed at Brussels, 25 August 1924, 120 LNTS 155), the Carriage of Goods by Sea Act 1925 was enacted (Act No 26 of 1925). India is also a contracting state of the Collision Convention of 1910 (International Convention of 23 September 1910 for the Unification of Certain Rules of Law Related to Collision between Vessels, in K Zweigert and J Kropholler, Sources of International Uniform Law, vol 2 (AW Sijthoff 1972) 3), of the Salvage Convention of 1910 (International Convention of 23 September 1910 for the Unification of Certain Rules of Law Related to Assistance and Salvage at Sea, in K Zweigert and J Kropholler, Sources of International Uniform Law, vol 2 (AW Sijthoff 1972) 7; 206 LNTS 220) and of the Convention on the Limitation of Liability of Seagoing Vessels of 1957 (1957 Limitation Convention, International Convention of 10 October 1957 relating to the Limitation of the Liability of Owners of Seagoing Ships, 1412 UNTS 73). In addition, India is a party to the Berne Convention (Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, completed at Paris on 4 May 1896, revised at Berlin on 13 November 1908, completed at Berne on 20 March 1914, revised at Rome on 2 June 1928, revised at Brussels on 26 June 1948, revised at Stockholm on 14 July 1967 and revised at Paris on 24 July 1971, 1161 UNTS 3 and amended in 1979 Treaty Doc No 99-27 and 1985, 828 UNTS 221). The Copyright Act 1957 (Act No 2 of 1957) contains the text of the Berne Convention in the appendix.

India is a signatory to four Hague Conventions. It became a party to the Hague Service Convention (Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters, 658 UNTS 163) and also to the Hague Evidence Convention (Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters, 847 UNTS 241).

However, India has signed these Conventions with some reservations. It signed the Hague Adoption Convention (Hague Convention of p. 129 May 1993 on protection of children and co-operation in respect of intercountry adoption, 32 ILM 1134) on 9 January 2003 and ratified it on 6 June 2003 with a view to strengthening international cooperation and protection of Indian children placed in inter-country →adoption. With a view to abolishing the requirement of diplomatic or consular legalization for foreign public documents (→Legalization of public documents), India signed the Hague Legalisation Convention (Hague Convention of 5 October 1961 abolishing the requirement of legalization for foreign public documents, 527 UNTS 189).

It should be noted that India is not a signatory to other conventions arising out of the Hague Conference. Nonetheless, those conventions carry persuasive value to some extent. Judges have, on occasion, invoked some of the conventions to which India is not a party (Y Narasimha Rao and Others v Y Venkata Lakshmi and Another (1991) 3 SCC 451).

3. Role of case-law

Since there has been no significant legislative development in the area of private international law in India, case-law remains one of the most important sources. In some branches the legislature has been completely silent and the case-law is the exclusive source of private international law rules (KB Agrawal and Vandana Singh, Private International Law in India (Wolters Kluwer 2010) 64).

With regard to some issues of international family law, there is a complete lack of statutory rules to deal with matters containing foreign elements, and Indian courts, on various occasions, have laid down guidelines to deal with those issues. Of note are the matters pertaining to guardianship, →adoption and custody of children (→Guardianship, custody and parental responsibility), and the recognition of foreign divorces (Laxmikant v Union of India, AIR 1984 SC 468; Surinder Kaur Sandhu v Harbux Singh Sandhu, AIR 1984 SC 1224; Y Narasimha Rao and Others v Y Venkata Lakshmi and Another (1991) 3 SCC 451; →Divorce and personal separation).

The Indian Contract Act 1872 (Act No 9 of 1872), which primarily deals with the law of contract in India, is silent on private international law matters. It is the courts that have established the →proper law (doctrine) in India (Rabindra Nath Mitra v Life Insurance Corporation of India, AIR 1964 Cal 141; Delhi Cloth and General Mills Co v Harnam Singh, AIR 1955 SC 590). Similarly, developments in the law of →torts have all occurred through case-law.

4. Role of doctrinal writings

Indian courts have many times relied on the writings of English authors. This is primarily so because there has not been much doctrinal development in the area of private international law. In some matters, references have also been taken from North, Westlake and commentaries in Halsbury’s Laws of England.

II. History and development of private international law

1. History in the pre-independence era

It is a known fact that ancient India had trade with many other countries. Several disputes arising out of such foreign trade may have been decided by Indian courts. During the Mughal period in India, the personal laws of the parties governed transactions between them. Modern Indian law began in Bengal with the Warren Hastings’ Regulation of 1772. Section 23 of the Regulation, which concerned the civil law to be applied in the Bengal mofussil (region), prescribed the application of Hindu and Mohammedan laws to Hindus and Muslims respectively in matters relating to inheritance, →marriage, caste and other religious usages or institutions (FE Noronha, Private International Law in India (Universal Law Publishing 2010) 21).

The Regulating Act 1773 (13 Geo 3 c 63) was the first parliamentary Act of the British Government to apply in India. This Act applied in India from 1773 until the entering into force of the Independence Act 1947 (10 & 11 Geo 6 c 30), during which period India successfully adopted the common law system. Thus, the development of the Indian legal system has mostly followed the same trajectory as that of England. However, conflict-of-law rules emerged for the first time in India as a part of the Negotiable Instruments Act 1881. Extensive commercial activities of the British Government throughout British India increased the necessity of rules that would help in solving disputes involving foreign elements (KB Agrawal and Vandana Singh, Private International Law in India (Wolters Kluwer 2010) 48). At the same time, despite the codification of the Indian p. 1Contract Act in 1872, conflict-of-law issues remained unregulated, meaning that the courts decided cases following English precedents. There were no specific rules regarding the law of torts. In the absence of such rules for torts, the question of →choice of law remained open to the courts.

The Special Marriage Act 1872 (Act No 3 of 1872) was promulgated to facilitate mixed →marriages between different castes among Hindus. The Act also made provision for marriages between persons who did not profess the Christian, Jewish, Hindu, Muslim, Parsi, Buddhist, Sikh or Jaina religions and persons who professed the Hindu, Buddhist, Sikh or Jaina religions.

The Indian Divorce Act 1869 (Act No 4 of 1869) is applicable to marriages in which one of the parties to the marriage was Christian. Thus, this Act aims at facilitating the divorce of mixed marriages. Domicile as a →connecting factor is recognized by this Act and a person domiciled in India can obtain a decree of divorce. The Act does not, however, provide a solution where a person has no Indian domicile (→Domicile, habitual residence and establishment).

2. History in the post-independence era

Private international law dealing with conflicts between Indian law post-independence and the legal systems of other sovereign nations has gradually developed only in the last few decades with the emergence of transnational divorces and business disputes. It is through judicial activities and not through legislative measures that most of the development in private international law has taken place in the post-independence period. For example, the courts have propounded the proper law of the contract doctrine in some important decisions (Rabindra Nath Mitra v Life Insurance Corporation of India, AIR 1964 Cal 141; Delhi Cloth and General Mills Co v Harnam Singh, AIR 1955 SC 590).

Particularly in the post-independence era, the Indian Supreme Court has made important contributions in matrimonial matters, laying down guidelines for the recognition of foreign divorce decrees in India (Neeraja Saraph v Jayant Saraph (1994) 6 SCC 461). Moreover, a series of judgments delivered in Laxmi Kant Pandey v Union of India on 3 December 1986 (1987 AIR 232, 1987 SCR (1) 383) has provided a framework of norms and principles on the basis of which guidelines have been adopted for inter-country adoption (available at <www.adoptionindia.nic.in/guide_inter_country_chap1.htm>).

III. Administration of private international law

1. Courts

There are no courts specialized solely in private international law matters in India. These matters fall typically within the scope of the jurisdictional powers of the civil courts.

2. Application of foreign law

It is for the courts to resolve conflict of laws and to decide on the proper application of the provisions of foreign laws. However, parties must duly prove provisions of the foreign law, and the burden is on the party relying on foreign law to establish its content.

In India, if a party wants to rely on foreign law, the application of this law should be pleaded as fact and should be proved by evidence of experts in that law (→Evidence, procurement of). This is because Indian law provides that if a court is to take judicial notice of a fact, this fact should be proved (s 56 of the Indian Evidence Act 1872). An Indian court will take judicial notice only of laws in force in India and not of foreign law (s 57 of the Indian Evidence Act 1872). If a party fails to establish the foreign law, the court applies the →lex fori. But in cases where according to the appropriate conflict-of-laws rules of the court, a foreign law is to be applied to the dispute pending before a court, the court may not apply that law if →public policy prohibits its application.

IV. Basic principles of jurisdiction

Indian courts have jurisdiction to try all suits of a civil nature except for suits the cognizance of which is either expressly or impliedly barred (s 9 CPC). At the same time, no court shall proceed with the trial of any suit the cause of action of which is also directly and substantially in issue in a previously instituted suit between the same parties pending in the same or any other court in India having jurisdiction to grant the relief claimed. However, the pendency of a suit in a foreign court does not preclude the courts in India from trying a suit founded on the same cause of action (s 10 CPC).

In the Indian context, the question of jurisdiction can be classified into three categories, p. 1ie, jurisdiction relating to subject matter, pecuniary and local limits. The preliminary issues as to whether Indian courts have jurisdiction to try the suit in respect of matters having foreign elements is to be resolved first and if the answer is found to be in the affirmative, then the next question relating to jurisdiction will arise in the same way as it arises in an internal suit (KB Agrawal and Vandana Singh, Private International Law in India (Wolters Kluwer 2010) 228).

Insofar as the pecuniary jurisdiction is concerned, every suit shall be instituted in the lowest court competent to try it (s 15 CPC). In respect of jurisdiction based on subject matter, suits may be divided into three distinct categories, ie, suits in respect of →immovable property, suits in respect of movable property and suits of other kinds. Suits involving immovable property must be filed within the local limits of the jurisdiction where the property is situated (→Jurisdiction, limits under international law). In respect of suits for a wrong to a person or movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides, carries on business or personally works for gain within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the said courts (s 19 CPC).

In respect of other kinds of suits, an Indian court may exercise jurisdiction when, within the limits of the territory assigned to it: (i) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (ii) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the court is given or the defendants who do not reside, or carry on business, or personally work for gain acquiesce in such institution; or (iii) the cause of action, wholly or in part, arises (s 20 CPC). However, it may be noted that there is no specific provision in respect of statutory fora for dealing with cases involving foreign elements.

Where a court in India has jurisdiction, it may nevertheless decline to hear the case under the doctrine of →forum non conveniens. This doctrine is not laid down in the CPC, but is recognized in judicial practice (Glaxosmithkline and Horlicks Ltd v Heinz India (MANU/DE/0011/2009)). The doctrine requires a two-stage analysis: first, there must be an alternative, competent forum which appears appropriate; and second, it must be in the interests of justice to relegate the parties to the alternative forum.

In India, it is a well-settled principle that the parties cannot by agreement confer jurisdiction, where none exists, on a court to which the CPC applies. However, this principle does not apply when the parties agree to submit to the exclusive or non-exclusive jurisdiction of a foreign court. Thus, the parties to a contract may agree to have their disputes resolved by a foreign court, called a ‘neutral court’ or ‘court of choice’, thereby creating exclusive or non-exclusive jurisdiction in the foreign court (Modi Entertainment Network and Another v WSG Cricket PTE Ltd (MANU/SC/0039/2003, AIR 2003 SC 1177)).

V. Basic principles of choice of law

1. Obligations

As there is no statute on the subject of →choice of law in contract, the courts in India follow the common law rules relating to the proper law of contract. A contract is governed by the law either expressly or impliedly chosen by the parties. There is no objection to choosing a neutral system of law to govern rights and obligations under the contract, and a choice of a law that has no connection with the parties to the contract is a valid choice (KB Agrawal and Vandana Singh, Private International Law in India (Wolters Kluwer 2010) 94). However, where a contract is made in India and is to be performed in India, the parties are not permitted to choose foreign law as the proper law so as to avoid the application of Indian laws (SE Oil v M/s Gorakharam Gokalchand (1962) 64 Bom LR 113).

In the absence of a choice of law made by the parties, the law with which the contract has the most real and substantial connection will be applied. Among other factors, the place where the contract was made, the place where the contract is to be performed and the place of the court chosen by the parties must be taken into consideration where the parties have not made a choice of law. Where there is no express reference to the proper law of contract, there is a presumption in favour of the lex loci contractus. However, where a contract is made in one country but is to be performed in another country, p. 1the contract is presumed to be governed by the lex loci solutionis in the absence of other circumstances.

In the absence of codified law in India with regard to the law of →torts, the question of choice of law remains open to courts. In the absence of a contrary legislative directive, an Indian court, before which a suit for compensation for a tort committed abroad is brought, may (as evidenced by the only decision in this area, namely The Kotah Transport Ltd, Kotah and Others v The Jhalawar Transport Service Ltd and Others (MANU/RH/0056/1960, AIR 1960 Raj 224)) fall back upon the so-called ‘double actionability’ doctrine. For most torts, this doctrine is no longer the law in England following the enactment by the British Parliament of Private International Law (Miscellaneous Provisions) Act 1995 (1995 c 42) (VC Govindaraj, The Conflict of Laws in India (OUP 2011) 62–63).

2. Corporations

The Companies Act 2013 contains provisions regarding foreign →companies carrying on business in India as well as for the winding-up of companies, including companies incorporated outside Indian territory. Matters pertaining to the constitution of a company are governed by the law of the place of incorporation. Issues relating to the company are determined by applying the law of domicile (→Domicile, habitual residence and establishment) of the company where it is incorporated (Technip SA v SMS Holding (pvt) Ltd (2005) 5 SCC 465).

The status and capacity of a company are also determined by the law of its domicile. A company, which is considered to be an artificial person in the eyes of the law, is bestowed with a domicile of origin at the time of its incorporation. Indian law follows the rule that a company will acquire the domicile of the place where it is incorporated, which may be different from the domicile or →nationality of its shareholders. The law of domicile also determines the dissolution, amalgamation and winding-up of a company.

3. Property rights

Generally, property is classified as movable or immovable in the conflict of laws (→Property and proprietary rights; →Immovable property). In the absence of any direct authority, it is assumed that India follows the well-accepted principles of international law. The final decision as to whether particular property is movable or immovable is left to the law of the country where the property is situated, ie to the lex rei sitae of the property.

In respect of movable property, Indian law distinguishes between tangible movables and intangible movables. The lex situs governs transactions of tangible movables in general such as pledges and gifts. There is no specific rule for the law applicable to goods in transit. The ‘proper law theory’ applies in respect of intangible movables.

With regard to →immovable property, the law of the situs of the immovable ordinarily governs all transactions and all rights over or in relation to immovable property (s 16 CPC). An exception to the well-established principle of lex situs is also accepted by Indian courts concerning the equitable doctrine of actions in personam regarding immovables situated in a foreign country. However, section 16 CPC does not make it clear whether the proviso applies in cases where the property is situated outside Indian territory. In India, the principle of lex rei sitae is also followed in respect of mortgages, ie a person’s capacity to create a mortgage or terminate a mortgage, as well as formalities necessary for creating a mortgage are governed by lex situs.

4. Family matters

Family matters are not governed by the law of domicile or nationality, but are governed by the personal laws of each community. In the case of →marriage performed under the Special Marriage Act 1956 (Act No 30 of 1956), which permits marriage between persons belonging to the same religion or different religions or different nations, the status of the parties as well as the form and capacity of marriage (→Capacity and emancipation) will be governed by the Special Marriage Act 1956.

The Foreign Marriage Act 1969 also authorizes solemnizing marriages between the parties of whom one at least is an Indian citizen, ie the Act facilitates the solemnization of civil marriages by Indian citizens outside the country with another citizen or with a foreigner. Any person can marry under this Act either within his or her own community or in a different community. Marriages solemnized abroad and not covered by the p. 1provisions of the Foreign Marriage Act 1969 will come under the purview of the general rules of private international law. Indian domicile is a condition precedent under this Act in order to obtain any decree from Indian courts for the dissolution of marriage, annulment of a voidable marriage or a declaration of nullity for a void marriage (s 18).

Under Indian domestic law, guardianship and custody are different issues, but for the purposes of private international law, this distinction is not maintained. Primarily, questions of law in this field are dependent on the religion of the person.

5. Succession

In India, questions of →succession depend on the religion practised by the deceased. There are different laws for Hindus, Muslims and for other religions. Among Hindus, there are differences as to the applicable rules depending upon whether the Mitakshara or Dayabhaga school applies to them, and, among Muslims, whether the Muslim is a Sunnite or a Shiite. However, if the persons marry under the Special Marriage Act 1954, succession to their estate would be governed by the rules laid down in the Indian Succession Act 1925. However, this provision does not apply if the parties to a marriage solemnized or registered under the Special Marriage Act 1954 are Hindus. Christians in most of India are governed by the Indian Succession Act 1925.

The matter of succession in India is generally governed by the law of the domicile of the deceased insofar as movables are concerned and by the lex situs in the case of immovable property. Section 5 of the Indian Succession Act 1925 provides that succession to immovable property in India of a person shall be regulated by the law of India, irrespective of where the person may have been domiciled at the time of his or her death. Succession to the movable property of a deceased person is regulated by the law of the country in which such person had his or her domicile at the time of his or her death (s 5(2) of the Indian Succession Act 1925).

VI. Recognition and enforcement of foreign judgments

Foreign judgments are recognized and enforced under the provisions of the CPC in India. The courts in India have favoured the →comity and obligation theories as the basis for recognizing foreign judgments. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties, except where it has not been pronounced by a court of competent jurisdiction; where it has not been given on the merits of the case; where, on the face of the proceedings, it appears to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is properly applicable; where the proceedings in which the judgment was obtained are opposed to natural justice; where it has been obtained by fraud; and where it sustains a claim founded on a breach of any law in force in India (s 13).

The mere fact that a cause of action has arisen in a foreign country within the jurisdiction of a court in that country is not enough to confer jurisdiction on that court from a private international law point of view. The principles of ‘effectiveness’ and ‘submission’ must be applied in order to find out whether a foreign court had jurisdiction to hear the case (General Investment Trust Ltd v Sri Ramchandra Mardaraja Deo, Raja of Khalikote (MANU/WB/0056/1952, AIR 1952 Cal 508)).

The court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a court of competent jurisdiction, unless the contrary appears on the record. This presumption may be displaced by proving want of jurisdiction (s 14).

VII. Arbitration

India has enacted the Arbitration and Conciliation Act 1996, which adopts the UNCITRAL Model Law (United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration as adopted on 21 June 1985 and as amended on 7 July 2006, UN Doc A/40/17 and A/61/17). Section 28 deals with the rules applicable to the substance of the dispute and provides that where the place of arbitration is situated in India, in an arbitration other than an international commercial arbitration (→Arbitration, international commercial), the arbitral tribunal shall decide the dispute in accordance with the substantive law in force in India. In international commercial arbitration, the arbitral tribunal shall decide p. 1the dispute in accordance with the rules of law designated by the parties as applicable to the substance of the dispute. However, if the parties fail to designate any law, the arbitral tribunal shall apply the rules of law it considers to be appropriate given all the circumstances surrounding the dispute. The arbitral tribunal shall decide ex aequoet bono or as amiable compositeur only if the parties have expressly authorized it to do so. In all cases, the arbitral tribunal shall decide the matter in accordance with the terms of the contract and shall take into account any trade usages applicable to the transaction.