University:
University College London
Course:
LAWS0023 | Commercial Law
Academic year:

2024
Views:

458

Pages:

3
Author:

N. Betz

The UNIDROIT Principles as an Inspiration for Legal Drafting and the Chinese Civil Code Presented by: Anna Veneziano (Professor of Comparative Law, Università di Teramo (Italy)) Ways to use the UNIDROIT Principles The UNIDROIT Principles may be used (and have been used in practice) for a number of purposes: 1. Tool for party autonomy  Chosen by parties as the law governing their contract/ as content of their contract  Guidelines for drafting international contracts  Guideline to reach settlement agreements 2. Tool for adjudicators a. By arbitral tribunals as the law governing the contract  When parties referred toLEX " MERCATORIA" or similar general categories  When parties did not choose any applicable law and it was clear they meant to exclude the application of domestic law b. Both by domestic courts and arbitral tribunals:  To interpret international uniform law  To support the interpretation of domestic law 3. Model for national and international legislators UNIDROIT Principles As A Model For National Legislators  Why are the Principles seen as a suitable model for legislators? 1. Neutral, balanced and practice-oriented set of rules of high technical quality 2. Developed through comparative law studies carried out over many decades 3. Prepared by a group of eminent experts representing all major legal systems and/or geo-political regions of the world 4. Adopted by an intergovernmental organization  Reference to the Principles by national legislators: 1. Transition economies implementing market-oriented contract laws, e.g. Russian Federation 2. (successive amendments), Estonia, Lithuania, China (Contract Law 1999) 3. Traditional legal systems in need of modernizations (also to render them more competitive in the international arena): e.g., Argentina, France  Different extent of impact: 1. Literal transposition 2. Inspiration for solutions adapted to the different style and goals of national law drafting and policy (relevant for the Chinese Civil Code)  Different types of provisions: 1. "Common core" of rules for international commercial contracts fostering convergence of legal systems 2. Innovative solutions particularly adapted to international contracts, but considered to be useful also for the modernization of general contract law Examples Of <> Provisions - Formation of the contract:  Influence of CISG and UPICC through the 1999 Contract Law (offer and acceptance; modes of acceptance; revocation of offer; time of conclusion of contract...)  E.g. modified acceptance [CISG Art. 19; UPICC Art. 2.1.11; 1999 Contract Law Arts 30-31; Civil Code Arts 488-489]  But: specie influence of UPICC for additional issues (e.g. ways to conclude a contract; interpretation of standard terms...) - Termination of the contract and fundamental non-performance:  CISG Art. 25; UPICC Art. 7.3.1; 1999 Contract Law Art. 94; Civil Code Art. 563 [but: additional reference to contracts concluded for an indefinite period of time)  Shenzhen Intermediate People's Court; Guangdong High People's Court (---). Case selected for a "Case Comment" by judges of the Court of First Instance, referring to Article 7.3.1 (right to terminate the contract) of the UNIDROIT Principles 2004 and Article 25 (fundamental breach) of the CISG to support their ruling that the Defendant's delay of performance constituted a fundamental breach of the agreement.  Force majeure: CISG Art. 79; UPICC Art. 7.1.7; 1999 Contract Law Art. 117; Civil Code Arts. 180 and 590 (with refinements based on 7.1.7 UPICC e.g., prompt notice to other party and proof required within a reasonable period of time) Example Of An Innovative Solution Supervening Events (Hardship):  UPICC Arts 6.2.1-6.2.3  The 1999 Chinese Contract Act did not contain any provision regarding change of circumstances, nor was the principle accepted in practice  Supreme People's Court confirmed a decision terminating an agreement on the transfer of the right of using a piece of land in case of substantial change circumstances on the ground of the principle of good faith and the principle of fairness  Comment by a judge of the Supreme People's Court making reference to the provisions on hardship of UPICC (2004)  2009: Art. 26 (Interpretation II of the Supreme People's Court of Several Issues concerning the Application of the Contract Law of the People's Republic of China) recognizing parties' right to request the intervention of court (to revise or terminate contract on the basis of the circumstances of the case)  Civil Code Art. 533: much more similar to UPICC provisions on definition of hardship and consequences (renegotiation; court's or arbitrator's revision or termination under the principle of good faith)