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Leaving the Shadow for the Test of Practice - On the Future of the Principles of European Contract Law*

Friedrich Blase#

1. Introduction

2. History and State of Affairs of the PECL

3. The Success Story of the UPICC

4. Specific Value of the PECL

5. Necessary Steps for the Future

6. Endnotes




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Leaving the Shadow for the Test of Practice

On the Future of the Principles of European Contract Law

Friedrich Blase

copy @ Lex Mercatoria

Leaving the Shadow for the Test of Practice - On the Future of the Principles of European Contract Law*

Friedrich Blase#

3. The Success Story of the UPICC

The means to achieve much of the needed attention for the PECL can be derived from the success story of the UPICC. Undoubtedly, the spread of and the enthusiasm for the UPICC is largely facilitated by the economic trend of globalisation. Commercial law must provide the international trading community with a legal framework which offers adequate solutions with a high degree of certainty. The national laws by their very nature and the rather patchy international uniform instruments  31  do not provide this. The UPICC could indeed form the core for such a desired framework. Their careful elaboration and the expertise of the members of the drafting group must be seen as a guarantee of their quality.

From a business perspective this situation forms an interesting market for the product 'UPICC'. Additionally, UNIDROIT could also rely on its infrastructure as an effective means for taking its product to that market. Currently, the principles including the commentary are available in English, French, Italian and Spanish - the four official languages of UNIDROIT - as well as in Chinese, Czech, Dutch, German, Russian, Slovak and Vietnamese. These versions are available in stand-alone publications  32  as well as in several works dealing at least in part with the UPICC 33  Moreover, the text of the black-letter rules alone had been translated into Arabic, Bulgarian, Croatian, Farsi, German, Hungarian, Japanese, Portuguese and Serbian.  34  Finally, the Uniform Law Review published by UNIDROIT provides an excellent platform for essays and case reports on the progress of the principles.  35  In numerous conferences and colloquia,  36  the UPICC were made known to academics and practitioners. A second enlarged edition of the leading commentary on the UPICC had to be published within 3 years after the first edition.  37 

After less than 6 years in public, the UPICC have been subject of an uncountable number of research essays.  38  Law journals have dedicated substantial space or entire issues to the presentation of the UPICC  39  and the Internet's most prominent web site for research material on the CISG now includes contributions on the UPICC 40  The focus of many of the essays and articles has not only been for academic purposes, but also with a distinct ambition to underline the practical value of the UPICC 41  This value has been documented by a growing number of arbitral cases in which the tribunal referred to the UPICC in one way or another,  42  the most prominent case being the Channel Tunnel Construction Case.  43  The UPICC have been a role-model and template for the rewriting of the civil law of eastern European states.  44  Finally, the Annual Willem C. Vis International Commercial Arbitration Moot as the world's most recognised educational event in its field encourages the use of the UPICC to solve problems arising from the application of the CISG.  45  With an ever increasing number of student participants the service of this event to the spread and acceptance of the UPICC will be felt vigorously in future years as the participants join the legal profession.

All of these developments underline the immense recognition of the UPICC. Such results would not have been possible if the opportunities offered were not used by the drafters of the principles. Many members of the working group and others who have been affiliated with its work contributed initially to the publications on the UPICC. At the center of this group stands its chairman Bonell, who has tirelessly advocated the use of the UPICC in books, essays, conferences, symposia, colloquia and private discussions throughout the world. The success of the UPICC cannot be de-coupled from his name.

 31. Cf. infra at Necessary Steps for the Future.

 32. The UN Convention on Contracts for the International Sale of Goods may be the only exception. Although even this instrument is limited in scope and provides for a great number of reservations by the contracting states.

 33. The English, French, Spanish and Italian version are available at UNIDROIT, Rome, the Chinese version is available at Legal Publishers and Distributors, Beijing, the Czech version is available at CODEX Bohemia, the Dutch version is available at Koninklijke vermande; the Russian version is available at International Centre for Financial and Economic Development, the Slovak version is available at Iura Edition.

 34. Bonell, An International Restatement of Contract Law, 1997, Annex; Berger, Formalisierte oder schleichende Kodifizierung des transnationalen Wirtschaftsrechts, 1996, Anhang; Berger, Creeping Codification of the Lex Mercatoria, Annex.

 35. Translations of the complete versions into Arabic, Farsi and Portuguese as well as of the text of the black letter rules into Indonesian are in preparation.

 36. See contributions by Boele-Woelki (1996 at 652 et seq.), Boggiano (1996 at 219 et seq.), Bonell (1996 at 26 et seq, at 229 et seq., 1997 at 34 et seq., 1998 at 275 et seq.), Drobnig (1998 at 385 et seq.), Farnsworth (1998 at 397 et seq.), Ferrari (1997 at 451 et seq.), Fontaine (1998 at 405 et seq.), Furmston (1998 at 419 et seq.), Goode (1997 at 231 et seq.), Kahn (1998 at 519 et seq.), Komarov (1996 at 247 et seq.), Ramberg (1998 at 651 et seq.), and Rosett (1997 at 441 et seq.).

 37. The UNIDROIT Principles for International Commercial Contracts: A New Lex Mercatoria?, Institute of International Business Law and Practice at the International Chamber of Commerce in Paris, 1994; Colloquium on the UNIDROIT Principles at the Universidad Autónoma de México and the Universidad Panamericana in Mexico City, 1996; A new approach to international commercial relations: the UNIDROIT Principles of International Commercial Contracts, Inter-American Congress in Valencia, 1996; cf. also the papers presented at the Biannual 25th Conference of the International Bar Association in Melbourne, 1994; the papers presented at the Symposium 'Setting Forth the Law of Contract' at Miami School of Law, 1991, papers presented at the Symposia 'Alternativen zur legislatorischen Rechtsvereinheitlichung' (1991) and 'Europäische Vertragsrechtsvereinheitlichung und Deutsches Recht'(1999) held at the Max-Planck-Institut für ausländisches und internationales Privatrecht in Hamburg.

 38. Bonell, An International Restatement of Contract Law, 2nd ed., 1997; see also the remarks by Bonell in the preface to this second edition.

 39. See the detailed bibliography in Bonell, An International Restatement of Contract Law, 1997, at 515 et seq. and the select bibliography on the internet site of UNIDROIT at ‹http://www.unidroit.org/english/principles/pr-bib.htm›.

 40. Cf. American Journal of Comparative Law, Volume 40 (1992); Tulane Journal of International and Comparative Law, Volume 3 (1994); Tulane Law Review, Volume 69 (1995).

 41. The CISG Web Site maintained by the Institute for International Commercial Law at Pace University - School of Law, New York at ‹http://www.cisg.law.pace.edu›.

 42. 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; cf. also Berger, Arbitral Practice and the UNIDROIT Principles for International Commercial Contracts, AmJCompL 1998 at 129 et seq.; Hill, A Businessman's View of the UNIDROIT Principles, Journal of International Arbitration 1996 at 163 et seq.

 43. Bonell, The UNIDROIT Principles in Practice - The Experience of the First Two Years, ULR 1997 at 2 (8 et seq.), Bonell, Restatement at 120 et seq.; Bonell, Erste Entscheidungen zu den UNIDROIT Principles, Bull. ASA 1997 at 600 et seq.; Berger, Arbitral Practice and the UNIDROIT Principles for International Commercial Contracts, AmJCompL 1998, at 129 et seq.; Mayer, Die UNIDROIT-Prinzipien für interntionale Handelsverträge, AJP at (499) 510; for a recently published award see ICC Award 8486, reprinted in: Clunet / Journal du Droit International 1998, at 1047 (1048).

 44. Schlechtriem, UNIDROIT Principles (Einheitliche Prinzipien für Verträge) und Werkvertragsrecht, in: FS von Craushaar, at 157 et seq.

 45. The UPICC have influenced the drafting of the Russian Civil Code, the Estonian Law of Obligations and the Civil Code of the Republic of Lithuania, cf. Bonell, International Restatement, 2nd ed., at 236 et seq.

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