THE UNIDROIT PRINCIPLES 2010 A New Law for

THE UNIDROIT PRINCIPLES 2010: A New Law for the International Commerce

UNIDROIT: AN OVERVIEW PURPOSE § The International Institute for the Unification of Private Law (UNIDROIT) is an independent intergovernmental Organisation with its seat in the Villa Aldobrandini in Rome. Its purpose is to modernize, harmonize and co-ordinate private and commercial law and to formulate uniform law instruments, principles and rules to achieve those objectives. § Set up in 1926 as an auxiliary organ of the League of Nations (i. e. the current United Nations- ONU), the Institute was re-established in 1940 on the basis of a multilateral agreement, the Unidroit Statute. § MEMBERSHIP § Membership of UNIDROIT is restricted to States acceding to the UNIDROIT Statute. UNIDROIT's 63 member States from the five continents and represent a variety of different legal, economic and political systems as well as different cultural backgrounds. § STRUCTURE § There a Secretariat (Secretary-General and two Deputy Secretaries-General appointed by the Governing Council), a Governing Council (appointed by the General Assembly, consisting in twenty-five members and a President; the latter is appointed by the Italian Government) and a General Assembly (consisting of one representative from each Government). 2

UNIDROIT: THE PRINCIPLES § PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS § The Governing Council of UNIDROIT adopted on 10 May 2011 the third edition of the Principles of International Commercial Contracts (UNIDROIT Principles 2010). § Previous versions were drafted in 1994 and in 2004. The UNIDROIT Principles 2010 consists of 11 Articles; they contain limited new provisions on restitution in case of failed contracts, illegality, conditions and plurality of obligors and obligees; with respect to the 2004 edition the only significant change relate to Article 1. 4 (mandatory rules). § PURPOSE OF THE PRINCIPLES § The Principles set forth general rules for international commercial contracts. § They may be applied (i) when the parties have agreed that their contract is governed by general principles of law, the lex mercatoria or the like; or (ii) when the parties have not chosen any law to govern their contract. § They may be used to interpret or supplement international uniform law instruments or domestic law. § They may serve as a model for national and international legislators. 3

UNIDROIT: THE PRINCIPLES § UNIDROIT Principles shall be applied when the parties have agreed that their contract is governed by them. § Parties wishing to provide that their agreement (international commercial also national) be governed by the Principles might use the following wording: § “This contract shall be governed by the UNIDROIT Principles (2010) [except as § to Articles …]”. § Parties wishing to provide in addition for the application of the law of a particular jurisdiction might use the following wording: § “This contract shall be governed by the UNIDROIT Principles (2010) [except as to Articles…], supplemented when necessary by the law of [jurisdiction X]”. 4

STRUCTURE AND COMPARISON OF THE PRINCIPLES 1994 2004 v CHAPTER 1: GENERAL PROVISIONS v CHAPTER 2: FORMATION v CHAPTER 3: VALIDITY v CHAPTER 4: INTERPRETATION v CHAPTER 5: CONTENT v CHAPTER 6: PERFORMANCE v CHAPTER 7: NONPERFORMANCE v. CHAPTER 1: GENERAL PROVISIONS v. CHAPTER 2: FORMATION AND AUTHORITY OF AGENTS v. CHAPTER 3: VALIDITY v. CHAPTER 4: INTERPRETATION v. CHAPTER 5: CONTENT AND THIRD PARTY RIGHTS v. CHAPTER 6: PERFORMANCE v. CHAPTER 7: NON-PERFORMANCE v. CHAPTER 8: SET-OFF v. CHAPTER 9: ASSIGNMENT OF RIGHTS, TRANSFER OF OBLIGATIONS, ASSIGNMENT OF CONTRACTS v. CHAPTER 10: LIMITATION PERIODS 5

2010 UNIDROIT: GENERAL PROVISIONS § § § § ARTICLE 1. 1. (Freedom of contract) The parties are free to enter into a contract and to determine its content. ARTICLE 1. 2 (No form required) Nothing in these Principles requires a contract, statement or any other act to be made in or evidenced by a particular form. It may be proved by any means, including witnesses. ARTICLE 1. 3 (Binding character of contract) A contract validly entered into is binding upon the parties. It can only be modified or terminated in accordance with its terms or by agreement or as otherwise provided in these Principles. ARTICLE 1. 4 (Mandatory rules) Nothing in these Principles shall restrict the application of mandatory rules, whether of national, international or supranational origin, which are applicable in accordance with the relevant rules of private international law. ARTICLE 1. 7 (Good faith and fair dealing) (1) Each party must act in accordance with good faith and fair dealing in international trade. (2) The parties may not exclude or limit this duty. 6

UNIDROIT: SPECIFIC PROVISIONS §§ ARTICLE 3. 2. 6 § (Threat) § A party may avoid the contract when it has been led to conclude the contract by the other party’s unjustified threat which, having regard to the circumstances, is so imminent and serious as to leave the first party no reasonable alternative. In particular, a threat is unjustified if the act or omission with which a party has been threatened is wrongful in itself, or it is wrongful to use it as a means to obtain the conclusion of the contract. § ARTICLE 7. 3. 3 § (Anticipatory non-performance) § Where prior to the date for performance by one of the parties it is clear that there will be a fundamental non-performance by that party, the other party may terminate the contract. § ARTICLE 7. 3. 4 § (Adequate assurance of due performance) § A party who reasonably believes that there will be a fundamental non-performance by the other party may demand adequate assurance of due performance and may meanwhile withhold its own performance. Where this assurance is not provided within a reasonable time the party demanding it may terminate the contract. 7

UNIDROIT: SPECIFIC PROVISIONS ARTICLE 6. 2. 2 (Definition of hardship) There is hardship where the occurrence of events fundamentally alters the equilibrium of the contract either because the cost of a party’s performance has increased or because the value of the performance a party receives has diminished, and (a) the events occur or become known to the disadvantaged party after the conclusion of the contract; (b) the events could not reasonably have been taken into account by the disadvantaged party at the time of the conclusion of the contract; (c) the events are beyond the control of the disadvantaged party; and (d) the risk of the events was not assumed by the disadvantaged party. ARTICLE 6. 2. 3 (Effects of hardship) (1) In case of hardship the disadvantaged party is entitled to request renegotiations. The request shall be made without undue delay and shall indicate the grounds on which it is based. (2) The request for renegotiation does not in itself entitle the disadvantaged party to withhold performance. (3) Upon failure to reach agreement within a reasonable time either party may resort to the court. (4) If the court finds hardship it may, if reasonable, (a) terminate the contract at a date and on terms to be fixed, or (b) adapt the contract with a view to restoring its equilibrium. 8

CONCLUSIONS § UNIDROIT Principles 2010 can be used as a really fair and reasonable regulation for all commercial contracts, including shipping agreements; § This is particularly relevant when bearing in mind current importance of the “sustainability” (where fairness with all stakeholders is a must) in the international market and environment; 9