Michael Joachim Bonell, The UNIDROIT Principles in practice: the experience of the first two years Go to Database Directory || Go to Bibliography || Go to CISG Case Search Form

Reproduced with permission from the International Institute for the Unification of Private Law, Uniform Law Review (1997) 34-45

The UNIDROIT Principles in Practice --
The Experience of the First Two Years

Michael Joachim Bonell [*]

INTRODUCTION

When deciding in 1994 the publication of the UNIDROIT Principles the Governing Council of UNIDROIT recommended their widest possible distribution and stressed the need "[...] to monitor their use with a view to a possible reconsideration of them at some time in the future".[1]

After two interlocutory reports by the UNIDROIT Secretariat containing first information as to the distribution of the UNIDROIT Principles in practice,[2] in view of their more than favourable reception in the international business and legal community -- up to now more than 3,000 copies of the volume containing the integral version of the UNIDROIT Principles have been sold worldwide -- in September 1996 a formal inquiry was launched with a view to gathering more detailed information as to the different ways in which the UNIDROIT Principles have been used in practice so far. A detailed questionnaire was prepared and circulated to some 1000 individuals chosen from among those who had shown a particular interest in the UNIDROIT Principles during their preparation and/or after their publication.

The inquiry turned out to be a great success. As of the end of December 1996 208 replies (more than 20% of the total number of questionnaires sent out) had been received. As confirmation of the truly worldwide distribution of the UNIDROIT Principles, replies came from 39 countries of all the major regions of the world, ranging from large countries such as the United States, Japan and Russia to smaller ones such as Uruguay, the United Emirates and Estonia. More than half of those who replied are practising lawyers and in house counsel, the rest being professors. Many of them indicated they were also arbitrators.

This paper is intended to provide, also in the light of the results of this inquiry, a first overview of the experience of the UNIDROIT Principles in practice in the first two years following their publication. After a brief account of the reception of the UNIDROIT Principles in academic and professional circles and their use as teaching materials (I), attention will be focused on the other ways in which the UNIDROIT Principles have been used: in particular as a model for national and international legislation (II); as a [page 34] guide in contract negotiations (III); as the law chosen by the parties to govern their contract (IV); and as rules of law referred to in judicial proceedings (V). Finally, a survey will be provided of awards and decisions applying the UNIDROIT Principles (VI).

I.  RECEPTION IN ACADEMIC AND PROFESSIONAL CIRCLES

The UNIDROIT Principles are meeting with the greatest interest in academic and professional circles. Over the years they have been the subject of numerous seminars and colloquia in many parts of the world. Some of them were held even before the adoption of the final version of the UNIDROIT Principles: this was the case of the seminar held in January 1992 at the Law School of the University of Miami,[3] the seminar held in December 1993 in Rome organised by the Centre for Latin American Studies and the Centre for Comparative and Foreign Studies[4] and the seminar held in February 1994 at the Law School of Tulane University in New Orleans.[5] Of the seminars held after the publication of the UNIDROIT Principles, mention may be made among others of the seminars held in October 1994 in Paris at the International Chamber of Commerce and in November 1994 in Milan at the National and International Court of Arbitration,[6] the seminar held in October 1995 in Rome organized by the Journal Diritto del commercio internazionale,[7] the Inter-American Congress held in November 1996 at the University of Carabobo, Valencia (Venezuela)[8] and the seminar held in November 1996 at the Universidad Panamericana in Mexico City.[9] [page 35]

The UNIDROIT Principles are, moreover, the subject of a growing number of scholarly writings published in the most important legal journals world-wide[10]and, what is even more important, their reception has generally been very positive. [11]

A particularly prestigious forum for an extensive discussion of the UNIDROIT Principles is the forthcoming Congress of the International Academy of Comparative Law to be held in Bristol in 1998. The UNIDROIT Principles will be the subject of a special section of that Congress, and the single National Rapporteurs will be invited to consider the Principles from the viewpoint of their own legal systems and/or their local business communities, in order to highlight convergencies and divergencies in content and advantages and possible shortcomings of the different ways in which the Principles have been used in practice.

The UNIDROIT Principles have moreover been included by a great number of Law Schools and Universities all over the world in their courses and/or teaching materials,[12] including, among others, in North America: Boston University, Columbia University School of Law (New York), Dickinson University School of Law (Carlyle), Fordham University School of Law (New York), Loyola University School of Law (New Orleans), McGill University (Montreal), New York University School of Law, Rutgers University School of Law (Camden), Southern Methodist University School of Law (Dallas), Temple University School of Law (Philadelphia), Tulane University School of Law (New Orleans), University of California (Berkeley, Davis, Hastings and Los Angeles) University of Mexico City (Autonoma, Iberoamericana and Panamericana), University of Texas (Austin), Yale University School of Law (Princeton); in South America: University of Caracas, University of Colombia, University of Rio de Janeiro, University of São Paulo; in Africa: University of South Africa (Cape Town), University of Tunis; in Asia: Korea Energy Law Institute, University of Beijing, University of Teheran, University of Tokyo; in Europe: Asser College Europe, Copenhagen Business School, University of Antwerp, University of Barcelona, University of Berlin (Humboldt), University of Bologna, University of Bristol, University of Budapest, University of Cádiz, University of Copenhagen, University of Dresden, University of Edinburgh, University of Freiburg, University of Geneva, University of Genoa, University of Glasgow, University of Gothenburg, University of Hamburg, University of Heidelberg, University of Helsinki, University of Leuven, University of Lisbon, University of London King's College, University of Louvain la Neuve, University of Madrid (Autonoma, Carlos III and [page 36] Complutense), University of Munich, University of Osnabrück, University of Oxford, University of Paris I, II and XII), University of Rome (I and II), University of Seville, University of Sofia, University of Stockholm, University of Toulouse, University of Turin, University of Utrecht, University of Würzburg, University of Zurich.

II.  MODEL FOR NATIONAL AND INTERNATIONAL LEGISLATION

The UNIDROIT Principles have, already in their draft form, served as an important source of inspiration in some of the most recent codifications. This can be said among others of the new Dutch Civil Code, the new Civil Code of Quebec and, more recently, the new Civil Code of the Russian Federation.[13] Yet references to individual provisions of the UNIDROIT Principles may be found also in the Final Report of the Commission for the Revision of the German Law of Obligations.[14] After the publication of the UNIDROIT Principles, the Estonian Government has officially declared that it considered them one of the most important and authoritative sources of inspiration in the drafting of the new law on obligations, at present under preparation.[15] Likewise, most of the provisions of the draft Civil Code of the Republic of Lithuania dealing with contracts in general follow very closely the UNIDROIT Principles,[16] and the same is expected to occur as concerns the new Czech Civil Code currently under preparation.[17] Also the Scottish Law Commission expressly refers in its proposals for the reform of the rules on interpretation of legal acts to specific provisions contained in chapter 4 of the UNIDROIT Principles, namely to Articles 4.1 and 4.2, 4.4, 4.5, 4.6 and 4.7.[18] Outside Europe, mention may be made of the recent drafts for the revision of [page 37] Article 2 of the Uniform Commercial Code, concerning sales contracts,[19] the draft of a new Commercial Code of Tunisia[20] or of the draft Uniform Law on General Commercial Law ("Loi uniforme relative au droit commercial général") which is currently being prepared by the 15 member States of the Organization for the Harmonization of Business Law in Africa ("Organisation pour l'Harmonisation en Afrique du Droit des Affaires") established in 1993.[21] Furthermore, specific provisions of the UNIDROIT Principles have been chosen as the basis for a tentative draft code prepared by a member of the New Zealand Law Commission and intended to lay down the basic principles of the New Zealand law of contracts.[22]

III.  GUIDE IN CONTRACT NEGOTIATIONS

Though not expressly mentioned in the Preamble as one of their purposes, the use of the UNIDROIT Principles as a guide in contract negotiations has so far turned out to be one of the most important ways in which they are being used in practice. This is certainly due also to the fact that the Principles have been translated into many languages. The complete version (i.e. the text of the articles and the comments) is available in Chinese, English, French, Italian, Portughese, Russian, Slovak and Spanish, while the German version is in preparation.[23] In addition, the "black letter rules" have been translated into Arabic, Bulgarian, Czech, Flemish, Hungarian, Korean and Serbian, while a Japanese translation is in preparation.

Turning to actual figures, no less than 59% of the persons (110 in number) who replied to the UNIDROIT Secretariat's questionnaire indicate that they used the UNIDROIT Principles in the course of contract negotiations. 30.9% of them declare that they had done so to overcome language barriers (more than half specifying they had done so on more than one occasion), while 32.1% have used the UNIDROIT Principles as a checklist of issues to be addressed (three quarters specifying they had done so on more than one occasion), and 37% as a model for contract provisions (more than half specifying they had done so on more than one occasion). [page 38]

IV.  LAW CHOSEN BY THE PARTIES TO GOVERN THEIR CONTRACT

27.3% of the persons who replied to the UNIDROIT Secretariat's questionnaire (30 in number) indicate that they chose the UNIDROIT Principles as the law governing the contract: half of them by expressly referring to the Principles in the contract (more than a third specifying they had done so on more than one occasion) and the other half by considering the UNIDROIT Principles as an expression of "general principles of law", the lex mercatoria or the like (almost a third specifying they had done so on more than one occasion).

With respect to the use of the UNIDROIT Principles both as a guide in contract negotiations and as lex contractus chosen by the parties, unfortunately not all replies indicated the nationality of the parties and the kind of transactions involved. However, of those containing this information 48.5% refer to North-North (more than half of which intra-European), 38.2% to North-South, 12.5% to East-West and 0.8% to South-South relationships. As to the kind of transactions involved, they range from sales contracts (44%), commercial agency and other distribution contracts (15%), to construction and engineering contracts (18%), transport and insurance contracts (4%) and other (19%).

V.  RULES OF LAW REFERRED TO IN JUDICIAL PROCEEDINGS

23.1% of the persons who replied to the UNIDROIT Secretariat's questionnaire (45 in number) indicate that they referred to the UNIDROIT Principles in support of a particular argument developed in a statement of claim or defence. 86.4% of them did so in an arbitral proceeding (more than a third specifying they had done so on more than one occasion) and 13.6% in a State court proceeding (a third specifying they had done so on more than one occasion). Although not all the replies provided details as to the specific provisions invoked, it appears that Chapters 2, 4, and 7 played the most important role.

Even more important, 13.1% of the persons who replied to the questionnaire (25 in number) indicate that they referred to the UNIDROIT Principles in support of a solution adopted in an arbitral award (more than half specifying they had done so on more than one occasion) and one reply indicates that this has been done in two State court decisions.

Taking into account that not all those who may have used the UNIDROIT Principles have received the questionnaire and that only some 20% of the recipients have replied, it may be estimated that the number of cases in which the UNIDROIT Principles have been used in judicial proceedings runs into the hundreds, and that the number of arbitral awards and court decisions applying in one way or another the UNIDROIT Principles is somewhere in the fifties.

Unfortunately enough only a few of these awards and decisions have been published so far. While some others have at least been brought to the attention of the UNIDROIT Secretariat, the majority are still unknown, thus impeding a complete [page 39] analysis of the way in which the UNIDROIT Principles are actually interpreted and applied in practice.[24]

VI.  ARBITRAL AWARDS AND COURT DECISIONS APPLYING THE UNIDROIT PRINCIPLES

(a) As a means of interpreting the applicable domestic law

A first group of awards and court decisions refers to the UNIDROIT Principles to demonstrate that a particular solution provided by the applicable domestic law conforms to internationally accepted standards.

This is the case of an award -- unpublished[25] -- rendered in 1992 by the Court of Arbitration of Berlin even before the final version of the UNIDROIT Principles was published.

The case concerned a contract for the delivery of machinery concluded between an economic unit of the German Democratic Republic and economic unit of another East European country. When, following the reunification of Germany, Western markets were opened to the enterprises of the former G.D.R., the machinery in question lost all value for the German importer. Consequently the latter, invoking the supervening of a radical change of the circumstances existing at the time of the conclusion of the contract, refused to take delivery of the goods and to pay the price. The arbitral tribunal decided in its favour and, in order to prove that the principle according to which a substantial change in the original contractual equilbrium may justify the termination of the contract is increasingly accepted at international level, referred among others to the provisions on hardship contained in the UNIDROIT Principles.

More recently, two other awards of this kind -- both unpublished -- were rendered by the Court of Arbitration of the International Chamber of Commerce.

The first of these awards, rendered in 1995, concerns a contract of distributorship between parties from Switzerland, Singapore and Belgium. After termination of the contract by agreement, the question arose as to how to regulate the buying back of the inventories. Although the parties had indicated Swiss law as the law governing their contract, the arbitral tribunal, in deciding the rate of exchange to be chosen for the payment in the local currency, referred to Art. 6.1.9(3) of the UNIDROIT Principles for a confirmation at international level of a similar rule of Swiss law.

The second, rendered in 1996, concerns a construction contract between a United States company and a governmental agency of a Middle East country. One of the issues at stake was the enforceability of contractional obligations to negotiate in good faith. The contract did not contain any choice of law clause and one of the parties [page 40] invoked the application of the UNIDROIT Principles. The arbitral tribunal, although deciding that the law governing the contract was that of the State of New York, referred to the UNIDROIT Principles -- defined as a "useful source for establishing general rules for international commercial contracts" -- in order to demonstrate that the same solution provided by the law of the State of New York, i.e. the enforceability of the Parties' express obligation to negotiate in good faith, corresponds to the general principles of law as reflected in the UNIDROIT Principles (in particular Articles 1.1, 1.3, 1.7 and 2.15).

Basically along the same lines is the unpublished decision rendered by the Court of Appeal of Grenoble on 24 January 1996.[26]

The dispute concerned faulty packaging of machinery transported from the United States to France. In its judgment the Court expressly referred to Arts. 2.21 ("Conflict between standard terms and non-standard terms") and 4.6 ("Contra proferentem rule") which it considered to embody generally accepted principles of international trade law.

(b) As a means of interpreting international uniform law

Three awards -- two rendered by the International Court of Arbitration of the Federal Chamber of Commerce of Vienna, [Award No. 4318 and Award No. 4366 of 15 June 1994] [27] and one by the Court of Arbitration of the International Chamber of Commerce [ICC Award No. 8128 of 1995] [28] -- refer to the UNIDROIT Principles in order to fill a gap in the United Nations Convention on Contracts for the International Sale of Goods (CISG).

The first two cases related to disputes arising from contracts between an Austrian seller and a German buyer for the supply of steel. As CISG, which governed the two contracts, does not determine the rate of interest to be applied, the arbitrator filled this gap in accordance with Article 7(2) CISG. In view of the fact that one of the general principles underlying the Convention is full compensation for the damage suffered, the arbitrator in both cases granted the average bank short-term lending rate applied with respect to the money of payment in the country of the creditor (as the payment had to be made there) and in support of this solution expressly referred to Article 7.4.9(2) of the UNIDROIT Principles.

The third case concerns a sales contract between an Austrian and a Swiss company. The contract was governed by CISG, and the sole arbitrator filled the gap to be found in the Convention as to the applicable rate of interest by applying the annual London International Bank Offered Rate (LIBOR) plus 2%. In doing so the arbitrator expressly [page 41] referred to the rule laid down in Art. 7.4.9(2) of the UNIDROIT Principles (as well as to the same rule contained in Art. 4.507(1) of the Principles of European Contract Law) which he defined as "one of the general principles according to Art. 7(2) CISG".

There is also a State court decision -- more precisely, one rendered by the Court of Appeal of Grenoble on 23 October 1996 -- using the UNIDROIT Principles as a means to supplementing CISG.[29]

The case concerns sales contract between a German and a French company. In order to determine its own jurisdiction in conformity with Art. 5(1) of the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters, the Court had to determine the place of performance of the seller's obligation to return part of the price unduly paid by the buyer. CISG, which governed the contract, is silent on this point. The Court, while openly rejecting the opposite solution adopted by both French and German domestic law, decided in favor of the buyer's place of business. In doing so, it based itself on the general principle that monetary obligations are to be performed at the obligee's place of business, which could be extracted not only from Art. 57(1) CISG, but also -- and more convincingly -- from Art. 6.1.6 of the UNIDROIT Principles.

(c) As the law governing the contract

Yet, there are even awards in which the UNIDROIT Principles are chosen as the law governing the contract.

Three of these awards have been rendered by the Court of Arbitration of the International Chamber of Commerce.

The first[30] concerns a series of contracts for the supply of equipment concluded by an English company and a governmental agency of a Middle East country. The contracts referred to no further specified "principles of natural justice" as the applicable law. In a partial award, rendered in 1995, on the question of the law applicable to the substance of the dispute the arbitral tribunal, after a detailed analysis of the origin and nature of the UNIDROIT Principles, concluded that the latter are today the most genuine expression of general rules and principles enjoying wide international consensus and as such should be applicable as the law governing the contracts in question.

The second, rendered in 1995, concerns a contract between a United States company and a governmental agency of a Middle East country, containing a provision [page 42] according to which any disputes which might arise would be settled on the basis of no further specified "Anglosaxon principles of law": this was sufficient to induce the arbitral tribunal to refer expressly to the UNIDROIT Principles, and in particular to the rules on interpretation contained therein.

The third concerns a contract between an Italian company and a governmental agency of a Middle East country. The contract did not contain any choice of law clause, since both parties had insisted on the application of their own national law. In a partial award the arbitral tribunal declared that it would base its decision on the "terms of the contract, supplemented by general principles of trade as embodied in the lex mercatoria". On the basis of this decision, the same arbitral tribunal subsequently, when dealing with the merits of the dispute, referred, with no further explanation, to individual provisions of the UNIDROIT Principles, thereby implicitly considering the latter a source of the lex mercatoria. Thus, apart from another partial award on some preliminary questions of substance in which it referred to Arts. 4.8 ("Supplying omitted terms") and 4.6 ("Contra proferentem rule"), in its final award, rendered in 1996, the arbitral tribunal invoked Arts. 7.4.1 ("Right to damages"), 7.4.7 ("Harm due in part to aggrieved party") and 7.4.13 ("Agreed payment for non-performance") in support of its reasoning.

Another award of this kind was rendered by the National and International Court of Arbitration of Milan.[31]

The case concerns a contract of commercial agency between an Italian and a United States company. The contract did not specify the applicable law, but at the outset of the arbitral proceeding the parties agreed that the dispute would be settled "in conformity with the UNIDROIT Principles tempered by recourse to equity". In its decision the sole arbitrator applied a number of individual articles of the UNIDROIT Principles, in some cases even invoking the accompanying Comments: more precisely, Articles 1.3 in order to affirm the binding character of the parties' original agreement, 4.1 in order to interpret a party's written declaration as a notice of termination, 7.3.1 in order to exclude the right to terminate the contract for an event with respect to which the parties had made express provision for the renegotiation of the contract should it occur, 7.3.5 in order to confirm the validity of a contract term which in the event of termination expressly grants the agent the right to a commission for orders so far received, 7.4.1 - 7.4.2 in order to affirm the aggrieved party's right to full compensation for the harm it has sustained as a result of the non-performance of the other party, 7.4.3 - 7.4.4 in order to exclude compensation for the costs incurred by the aggrieved party for the purchase of a house in the place where the contract was to be performed, 7.4.9 to grant, as a last resort, interest at the statutory rate fixed by the law of the State of the currency of payment, 7.4.13 in order to uphold a contract term providing for a higher rate of interest for the delay in the payment of certain specific debts. [page 43]

CONCLUSIONS

The UNIDROIT Principles, as the result of the work of a group of experts acting under the auspices of an intergovernmental organisation such as UNIDROIT with no legislative power, may have appeared at first sight to a sceptical observer to be little more than an academic exercise of no practical utility.[32]

The experience of the first two years since their publication has shown that this is not the case. Their success in practice has gone beyond all expectations.

The reasons for the favourable acceptance of the UNIDROIT Principles in practice are manifold. One might be their intrinsic merits. As pointed out by an eminent Swiss arbitrator,[33] "[t]he UNIDROIT Principles, are likely to find a quite universal acceptance, since they have been worked out [...] with the contribution of over seventy well known specialists from all major areas and legal systems of the world, including formerly socialist countries, Latin America countries and countries of the Far East."

Yet there might also be more practical reasons for the success of the UNIDROIT Principles. To quote an experienced American lawyer,[34] "[...][t]he great importance of the [UNIDROIT] Principles is that the volume exists. It can be taken to court, it can be referred to page and article number, and persons who are referred to its provisions can locate and review them without difficulty. This alone is a great contribution towards making lex mercatoria definitive and provable." [page 44]


FOOTNOTES

* Professor, Law Faculty, University of Rome I La Sapienza; Legal Consultant, Unidroit.

1. Cf. Report on the 73rd Session of the Governing Council (Rome, 9 to 13 May 1994), UNIDROIT 1994, C.D. (73) 18, p.22.

2. Cf. UNIDROIT 1995, C.D.(74) 9 and UNIDROIT 1996, C.D. (75) 8.

3. Cf. 40 American Journal of Comparative Law (1992) containing contributions by M.J BONELL, U. DROBNIG, E.A. FARNSWORTH, M. FONTAINE, M.P FURMSTON, R. HYLAND, D. MASKOW, A. ROSETT and D. TALLON.

4. Cf. M. J. BONELL -- S. SCHIPANI (eds.), "Principi per i contratti commerciali internazionali " e il sistema giuridico latinoamericano, Padova 1996, containing contributions by J. ADAME GODDARD, E. AIMONE GIBSON, E.C. BANCHIO, L.O. BAPTISTA, F. HINESTROSA, A. LEON STEFFENS, J.C. MOREIRA ALVES, L.G. PAES DE BARROS LEAES, G. PARRA-ARANGUREN, S. RIPPE, J.C. RIVERA, H. VEYTIA.

5. Cf. 3 Tulane Journal of International and Comparative Law (1994) containing contributions by E.A. FARNSWORTH, A. HARTKAMP, M.J. BONELL, A.M. GARRO, O. LANDO, M. EVANS.

6. Cf. Institute of International Business Law and Practice (ed.), UNIDROIT Principles for International Commercial Contracts: A New Lex Mercatoria?, ICC Publication n° 490/1 (1995), containing contributions by J.-P. BERAUDO, G. DE NOVA, U. DROBNIG, E.A. FARNSWORTH, M. FONTAINE, M.P. FURMSTON, V. GAYMER, A. GIARDINA, J. HUET, A. KOMAROV, P. LALIVE, R. MONACO, R. MORERA, K. RAZUMOV, H. RAESCHKE-KESSLER, C. REYMOND, D. TALLON, H. VAN HOUTTE.

7. Cf. papers presented by G. ALPA, P. BERNARDINI, M.J. BONELL, F. BONELLI, S. CARBONE, C. CASTRONOVO, A. DI MAJO, U. DRAETTA, U. DROBNIG, E.A. FARNSWORTH, L. FERRARI BRAVO, G.B. FERRI, M. FONTAINE, F. GALGANO A. GIARDINA, P. KAHN, E. KRAMER, P. LALIVE, O. LANDO, R. LUZZATTO, P. SCHLECHTRIEM, D. TALLON, P. WINSHIP to be published as a separate volume by Editore Giuffrè, Milan (under press).

8. Cf. papers presented by J.M. ABASCAL, L.O. BAPTISTA, J.-P. BERAUDO, .A. BOGGIANO, M.J. BONELL, L. BORJAS HERNANDEZ, R. EYZAGUIRRE ECHEVERRIA, E.A. FARNSWORTH, L. FERRARI BRAVO, F. HINESTROSA, H.M. HOLTZMANN, F.K. JUENGER, B. KOZOLCHYK, R. ILLESCAS ORTIZ, D. OPERTTI BADAN, G. PARRA-ARANGUREN, J.L. SIQUEIROS, J.S. ZIEGEL (to be published).

9. Cf. papers presented by L.M. ABASCAL, F. CONTRERAS VACA, R. CRUZ MIRAMONTES, J. ESQUIROL, A. GARRO, J. ADAME GODDARD, J.L. GONZÁLEZ ALCÁNTA, F.K. JUENGER, B. KOZOLCHYK, P. LINZER, L. PEREZNIETO, J. PERILLO, A. ROSETT, J. SANCHEZ CALERO, J.L. SIQUEIROS, J. SMITH, L. TRAKMAN, J. C. TREVIÑO AZUÉ, D. VAGTS, H. VEYTIA (to be published).

10. For a comprehensive bibliography see M.J. BONELL, Un "codice" internazionale del diritto dei contratti, Giuffrè Editore, Milan, 1995, pp. 410-440; for further updates see Uniform Law Review, 1996, pp. 210-213, 423, 626-628, 808.

11. The intrinsic quality of the UNIDROIT Principles has been confirmed also by the UNIDROIT Secretariat's inquiry: only 20 (less than 10%) replies made critical remarks on individual provisions and almost all of them concerned only one provision.

12. According to the UNIDROIT Secretariat's inquiry their total number is 95.

13. Cf. A. KOMAROV, The UNIDROIT Principles of International Commercial Contracts: A Russian View, Uniform Law Revue 1996, p. 247 et seq. (at p.249): " In relation to the new Russian civil code the Principles have already played the role indicated for them in the Preamble [...] in the sense that they have served as a model for national legislation."

14. Cf.Bundesminister der Justiz (ed.), Abschlußbericht der Kommission zur Überarbeitung des Schuldrechts, Köln 1992, pp. 149 and 165.

15. See the letter of 8 June 1995 from the Ministry of Justice of Estonia to UNIDROIT: "[...] At present time we're elaborating a new draft law of obligations of the Estonian Republic. The UNIDROIT Principles of International Commercial Contracts is certainly one of the most important and authoritative sources for drafters of the new law of obligations because it contains a positive experience of different States."

16. Cf. Part II, Book 5 ("Contract Law") of the draft Civil Code as submitted to the Parliament of Lithuania in September 1996. The provisions of the UNIDROIT Principles which have been more or less literally taken are Articles 1.1 - 1.4 and 1.7 of Chapter 1, Articles 2.1 - 2.16 and 2.20 - 2.22 of Chapter 2, Article 3.10 of Chapter 3, the entire Chapter 4, Articles 5.1 - 5.3 and 5.6 - 5.8 of Chapter 5, Articles 6.1.1 - 6.1.6 and 6.1.14 - 6.1.17 of Chapter 6, Section 1, the entire Section 2 of Chapter 6 and the entire Sections 1, 2 and 3 of Chapter 7.

17. According to information received from one of the members of the Codification Commission the relevant provisions of the UNIDROIT Principles are Arts. 2.1 to 2.11, 4.1 to 4.6, 7.1.7, 7.4.2 to 7.4.6 and 7.4.13.

18. Cf. Scottish Law Commission, Discussion Paper No. 101, Interpretation in Private Law, August 1996, p. 23, 33, 52, 55 and 58, respectively.

19. Cf. The American Law Institute, Uniform Commercial Code Revised Article 2. Sales, Council Draft No. 2 (November 1, 1996), with references to specific providions of the UNIDROIT Principles at pp. 5 (Art. 2.19 (2)), 16 (Art. 1.2), 25 (Art. 2.20) and 112 (Art. 7.1.4).

20. Information supplied in a reply to the UNIDROIT Secretariat's questionnaire.

21. Information supplied in a reply to the UNIDROIT Secretariat's questionnaire. -- The member States of OHADA (French acronym of the Organization for the Harmonization of Business Law in Africa) all belong to the so-called "Zone Franc": Benin, Burkina-Faso, Comores, Ivory Coast, Mali, Senegal, Niger, Chad, Cameroun, Congo, Gabon, Equatorial Guinea, Guinea-Bissau, Central African Republic and Togo.

22. Cf. R. SUTTON, Commentary on "Codification, Law Reform and Judicial Development", Appendix -- Tentative Scheme for a Draft Code, in 9 Journal of Contract Law 1996, p. 204-205. The provisions in question are Arts. 1.1, 1.3 - 1.5, 3.3, 3.8 - 3.12, 3.16 - 3.18, 7.1.1, 7.1.2, 7.1.7, 7.3.3 - 7.3.6 and 7.4.2 - 7.4.9.

23. The different versions may be ordered directly from UNIDROIT, Via Panisperna 28, I-00184 Rome, FAX: +39-6-69941394 or e-mail: unidroit.rome@agora.stm.it

24. The UNIDROIT Secretariat is in contact with the major international arbitration centres in order to see how to obtain in future regular information about awards rendered in application of the UNIDROIT Principles. As far as ad hoc arbitrations are concerned, it can only be hoped that arbitrators will spontaneously inform the UNIDROIT Secretariat of the awards they have rendered.

25. See the references in D. MASKOW, Hardship and Force Majeure, in 40 American Journal of Comparative Law 1992, p. 657 et seq. (p.665).

26. Unpublished. Cf. the summary published in the Uniform Law Review 1997-1.

27. Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft, Wien, Schiedsspruche SCH 4318 and SCH 4366 of 15 June 1994: for an English translation see M.J. BONELL (ed.) UNILEX. International Case Law & Bibliography on the UN Convention on Contracts for the International Sale of Goods, Transnational Publishers, Inc., Irvington, NY, Third release (1997), E.1994-13 and E.1994-14. For extracts of the original German version see Recht der internationalen Wirtschaft 1995, p. 590 et seq., with note by P. SCHLECHTRIEM (p. 592 et seq.); for a succint presentation in French, see I. SEIDL-HOHENVELDERN in Journal du droit international, 1995, pp. 1055-1056.

28. Cf. award No. 8128 of 1995, an abstract of which has been published in Journal du droit international 1996, p. 1024.

29. Unpublished. Cf. the summary published in the Uniform Law Review 1997-1.

30. For extensive references see P. LALIVE, L'arbitrage international et les Principes UNIDROIT (Paper presented at the colloquium on "The UNIDROIT Principles of International Commercial Contracts: An International 'Restatement' of Contract Law?", held in Rome on 6-7 October 1995) (under press). See also K. BOELE-WOELKI, Principles and Private International Law -- The UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract law: How to Apply Them to International Contracts, in Uniform Law Review 1996, p. 652 et seq. (p. 661), who points out that "[t]his significant award may be regarded as the official entrée of the Principles into international arbitration."

31. Award No 1795 of 1 December 1996.

32. For such a view, e.g., C. KESSEDJIAN, Un exercice de rénovation des sources du droit des contrats du commerce international: Les Principes proposés par l'Unidroit, in Revue critique de droit international privé 1995, p. 641 et seq.; R. HILL, A Businessman's View of the UNIDROIT Principles, in 13 Journal of International Arbitration 1996, p. 163 et seq.

33. Cf. M. BLESSING, Regulations in Arbitration Rules on Choice of Law, in ICCA -- Congress Series No. 7: XIIth International Arbitration Congress, Vienna, 3-6 November 1994, The Hague / London 1996, p. 391 et seq. (p. 401).

34. B.S. SELDEN, Lex Mercatoria in European and U.S. Trade Practice: Time to Take a Closer Look, in 2 Golden Gate University School of Law, Annual Survey of International & Comparative Law 1995, p. 111 et seq. (p. 122).


Pace Law School Institute of International Commercial Law - Last updated October 9, 2008
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