More important, the domestic laws governing the individual contracts in the cases in question are far from being only those of less developed countries or so-called emerging countries. Admittedly, quite often, the reference to the U nidroit Principles have had no direct impact on the decision of the merits of the dispute at hand, and individual provisions of the Principles were cited, either alone or together, with other legal sources such as the CISG or foreign domestic laws, essentially to demonstrate that the solution provided by the applicable domestic law was in conformity with current internationally accepted standards and rules.
For that party, the assurance that the solution adopted under the foreign law basically corresponds to the solution provided by a balanced and internationally accepted set of rules such as the U nidroit Principles may well have a beneficial psychological effect and increase its confidence in a fair judgement.
However, in a number of cases, the courts and arbitral tribunals have resorted to the U nidroit Principles in support of the adoption of one of several possible solutions under the applicable domestic law or in order to fill a veritable gap in the latter. Even more important, there are decisions, including decisions of courts of second and last instance, referring to the U nidroit Principles as a source of inspiration for openly revisiting the current law of their country.
Thus, for instance, courts in Australia and, although to a less extent, courts in England and New Zealand have, on a number of occasions, referred to the Principles as a source of inspiration in their attempt to affirm also at the domestic level the relevance of good faith in contract formation and performance or to admit recourse to extrinsic evidence for the interpretation of written contracts. Indeed, just like the US Restatements of the law, the U nidroit Principles are by their very nature particularly suited to serve as background law in applying domestic laws in an international context and, as such, may eventually become a sort of ius commune or the general part of transnational contract law.
Some doubts may arise in view of the fact that courts consider the interpretation and gap-filling of the applicable domestic law in principle to be their prerogative. Yet, on closer examination, it would seem that the answer should be in the affirmative.
Indeed, at least with respect to issues covered by party autonomy, not only arbitral tribunals but also domestic courts will normally follow the indications made by both parties as to how they wish to have ambiguities in the applicable law resolved or gaps filled, and, to this effect, it is irrelevant whether such indications are made by the parties in their pleadings with respect to specific issues under dispute or by a reference to the U nidroit Principles with respect to all issues that may become relevant.
As shown in the foregoing remarks, the fact that, despite the ever-growing internationalizsation of trade, cross-border transactions continue, to a large extent, to be subject to national laws presents a number of shortcomings, and soft law instruments such as the U nidroit Principles could represent a valid alternative to a strictly positivist or State law-centred conflict-of-laws approach. Yet, why is it that despite the widely acknowledged intrinsic qualities of the U nidroit Principles, their relevance in the international contract and dispute resolution practice is—at least at first sight—still rather limited?
Of the various reasons commonly given, none is really convincing.
Nor should it matter that the Principles cover only issues of general contract law but do not contain rules for specific contracts. Finally, the argument that the U nidroit Principles without a sufficiently developed case law concerning their application in practice do not provide the necessary certainty and predictability of solutions proves too much and too little at the same time. Too much because even highly sophisticated national laws, let alone less developed ones, do not always offer such clear and predictable solutions for the ever-changing scenario of cross-border business transactions; too little because more and more decisions—not only arbitral awards but also court decisions that apply in one way or the other the U nidroit Principles—are reported and annotated so that it may not take too much time until the Principles will also be corroborated by a sufficient body of case law.
So what is the true reason for the so far at least not too exciting performance of the U nidroit Principles in practice? The answer is at bottom very simple and quite sobering. The principal reason is the inherent conservatism, coupled with a good deal of provincialism, of the legal profession. No wonder that, when assisting their clients in cross-border transactions, most lawyers will advise them to insist, if their bargaining power permits them to do so, on the application of their own national law or otherwise to opt for the domestic law of a third country.
In fact, as shown by a number of empirical studies undertaken in different parts of the world, 98 most international commercial contracts contain a choice-of-law clause in favour of the national law of either of the parties or, if neither party is in a position to impose its own law, in favour of so-called neutral laws—mostly English law or Swiss law—with little if any regard to their intrinsic merits as compared to other possible choices.
All in all, the role that the U nidroit Principles already fulfil, side by side with the still dominant domestic laws, is far from insignificant, and one may expect that the recently adopted U nidroit Model Clauses for the Use of the U nidroit Principles in international contract and resolution practice will promote their relevance even more. Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide.
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Advanced Search. Article Navigation. Close mobile search navigation Article Navigation. Volume Article Contents. The limits of the traditional state law-centred conflict-of-laws approach.source link
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The actual role of the Unidroit Principles in international contract and dispute resolution practice. Some concluding remarks. The law governing international commercial contracts and the actual role of the U nidroit Principles Michael Joachim Bonell. Oxford Academic. Google Scholar. Cite Citation.
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Permissions Icon Permissions. For a compilation of primary materials relating to international trade law accompanied by commentary, see most recently, R. Goode, H. Kronke, E. McKendrick, J. Wool eds. International Instruments and Commentary, 2 nd ed. Oxford For a comprehensive analysis of the different approaches followed worldwide in the interpretation of the CISG, see F. Bonell, Le regole oggettive del commercio internazionale: Clausole tipiche e condizioni generali, Milan , p.
For a list of similar instruments produced by non-governmental organizations in the United States, see S. Karameus, Athens, , p. On the relevance that, in this context, is increasingly being given to the U nidroit Principles, see infra , pp. For similar acknowledgements, see recently, e. Essays in honour of Michael Joachim Bonell, Rome , p. Karrer, in Honsell, Vogt, Schnyder eds. Bonell, An International Restatement, cit. U nidroit , Study L Doc.
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U nidroit , C. Michaels, in S. Vogenauer ed. COM final. Regulation EC no. Recital no. For a detailed analysis of this in many respects innovative legislation see J. II, p. Comment 3. One example is U nidroit , an inter-governmental organisation responsible solely to its Member States, which operates on the basis of consensus. Mankowski, Art. Multi device Going Global is optimised for delivery over all major technology platforms including.
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This duty is in accordance with the International Chamber of Commerce. Icc Model Occasional Intermediary Contract. Below, I will first briefly explain the concept of soft law as used. Publication International Chamber of Commerce no. Pdf , Text File. However, it can be expensive and. Icc publication no icc model occasional intermediary contract download. For the sake of this agreement, it does not matter whether information is obtained. It includes the uniform contractual rules and their application in a simple and general form to assure equal balance for both parties.
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