1951

AT

Abu Dhabi Arbitration 18 ILR 144

1939, the Sheikh of Abu Dhabi entered into a written contract in Arabic language with Petroleum Development Limited to transfer to the Company the exclusive right to drill and win mineral oil in certain area of Abu Dhabi. The agreement contained and arbitration clause. Art 17. The ruler and the company declare that they base their work in this agreement on goodwill and sincerity of belief and on the interpretation of this agreement in a fashion consistent with reason The company claimed that the agreement covered the seabed and subsoil contiguous to the ruler’s sovereignty. The umpire decided that the agreement excludes from the concession the Shelf. Resolution Lord Asquith: (status of Continental shelf doctrine in CIL) there are in this field so many ragged ends and unfilled blanks, much merely tentative and exploratory, that in no form the doctrine have assumed the hard lineaments or definitive status of rule of CIL. [See later North Sea Continental Shelf Cases 1969]

What is the proper law of this contract? This is a contract made in Abu Dhabi and wholly to be performed in that country. If any municipal system of law were applicable, it would prima facie be that of Abu Dhabi. But no such law can reasonably be said to exist. The Sheikh administers a purely discretionary justice with the assistance of the Koran; and it would be fanciful to suggest that in this very primitive region there is any settled body of legal principles applicable to the construction of modern commercial instruments. Nor can I see any basis on which the municipal law of England could apply. On the contrary, clause 17 of the Agreement repels the notion that the municipal law of any country, as such, could be appropriate. The terms of that clause invite, indeed prescribe the application of principles rooted in the good sense and common practice of the generality of civilised nations – a sort of ‘modern law of nature’. I do not think that on this point there is any conflict between the parties. But albeit English Municipal law is inapplicable as such, some of its rules are in my view so firmly grounded in reason, as to form part of this broad body of jurisprudence, this ‘modern law of nature’ The English law principle of interpretation ‘expressio unius est exclusio alterius’ [the expressly signalled excludes the not signalled] is ‘rooted in the good sense and common practice of the generality of civilised nations’