Leaving the Shadow for the Test of Practice - On the Future of the Principles of European Contract Law
Friedrich Blase
Copyright (C) 1999 Friedrich Blase
SiSU http://www.jus.uio.no/sisu (this copy)
1999
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1
Leaving the Shadow for the Test of Practice - On the Future of the
Principles of European Contract Law*
2
Friedrich Blase#
3
1. Introduction
4
The post war period has seen a vigorous debate on the existence and the
value of a lex mercatoria. Its protagonists1 lit the fire by
developing theories of a transnational commercial law or
modern2 lex mercatoria. Although the various theories differed
widely with respect to the terminology and legal nature of a lex
mercatoria, all approaches shared the view that it is derived from a
comparative analysis and application of a set of common principles,
rules and standards of international commercial law.3 The
raison d'etre of a lex mercatoria is that its application to
cross-border transactions and their dispute settlement procedures is
economically sound.4 Thus, their application would produce
superior results compared to the application of a national law.
1
Fragistas, Arbitrage é tranger et arbitrage international en
droit privé, Rev.cit.dr.int.priv. 1960, at 1 et seq., Goldstaijn,
The New Law Merchant, J.Bus.L. 1961, at 12 et seq., Schmitthoff,
International Business Law: A new Law Merchant, Current Law and Social
Problems, 1961, at 129 et seq.; Goldman, Frontières du droit et
lex merctaoria, Archives de philosophie du droit 1964, at 177 et seq.
2
The term 'modern' is used to distinguish the idea of a contemporary
lex mercatoria from the lex mercatoria which was the commonly accepted
body of law governing trade in Europe in the Middle Ages.
3
Berger, Creeping Codification of the Lex Mercatoria, at 1 et seq.
4
Ibid.
5
The analysis of a lex mercatoria came to a first climax in 1994, when
the International Institute for the Unification of Private Law
(UNIDROIT) in Rome presented its Principles of International Commercial
Contracts (hereinafter UPICC ).5 These principles which
intend to set forth 'general rules for international commercial
contracts'6 were developed by an intensive7 study of
the national laws of many nations, the 1980 UN Convention on Contracts
for International Sale of Goods (hereinafter CISG) and widely acclaimed
customs and usages in international trade.8 Since their
introduction in 1994 the UPICC have received wide recognition
both in academic research9 and teaching10 as well as
in the practice11 of international contract drafting and
commercial dispute resolution.12
5
The Principles are abbreviated in number of ways. The abbreviation
UPICC is not common although it mirrors the common form of
abbreviation used for conventions and bodies of national law.
6
UNIDROIT (ed.), Principles of International Commercial Contracts,
1994; for an overview see Berger, Die UNIDORIT-Prinzipien fýr
Internationale Handelsverträge, Zeitschrift fýr Vergleichende
Rechtswissenschaft 1995, at 217 et seq.; for a detailed study of the
UNIDROIT-Principles see Bonell, An International Restatement of
Contract Law, 1997, at 1 et seq.
7
Cf. Preamble of the UNIDROIT Principles of International Commercial
Contracts.
8
Work started in 1971 when the Governing Council of UNIDROIT decided
to include the elaboration of 'Principles of International Commercial
Contracts' in the Work Programme of the Institute, cf. Introduction,
UNIDROIT (ed.), Principles of International Commercial Contracts, 1994,
at vii.
9
Cf. Introduction, UNIDROIT (ed.), Principles of International
Commercial Contracts, 1994, at vii et seq.
10
See the exhaustive bibliography in Bonell, An International
Restatement of Contract Law, 2nd ed., 1997, at 527 - 561.
11
For example the Annual Willem C. Vis International Commercial
Arbitration Moot held annually since 1993 in Vienna, Austria; for a
report see Bergsten, The Fifth Moot and Plans for the Sixth, 2
Vindobona Journal (1998) at 51 et seq.
12
See Bonell, The UNIDROIT Principles in Practice: The Experience of
the First Two Years, Uniform Law Review 1997 at 34 et seq.; Mayer, Die
UNIDROIT-Prinzipien fýr internationale Handelsverträge, AJP
1998 at 499 et seq.
6
The post war period also saw the building of the European Communities
and the European Union (hereinafter EU). With the Economic and Monetary
Union well underway, enlargement towards middle and eastern Europe
apparently poses as one of the principal challenges for the EU in the
forthcoming years.13 However, a voice has been raised that the
EU must tackle another - somewhat less apparent - problem. It is in
need of greater harmonisation of its various national legal
systems.14 Particularly the contract law has been harmonised
only in a fragmentary fashion with much emphasis laid on the protection
of consumers.15 Certainty on the legal basis for cross-border
transactions is one of the main catalysts of trade. However, there is
no European-wide regulation of general contract law which applies in
these transactions. While the 1980 Rome Convention on the Law
Applicable to Contractual Obligations provides for a uniform conflict
of laws approach,16 this may not be enough. Harmonisation with
respect to the private international law does not mean that the same
case will receive the same judgement anywhere in the EU.
13
See also infra at The Success Story of the UPICC .
14
On 13 October 1999 the European Commission proposed doubling to 12
the number of countries negotiating to join the European Union. They
include Cyprus, the Czech Republic, Estonia, Hungary, Poland as well as
Slovenia and now also Bulgaria, Latvia, Lithuania, Malta, Romania and
Slovakia; see Norman, Brussels adds six to EU fast track, in Financial
Times, 14 Oct. 1999, at 1. For the general issues relating to
enlargement cf. Hamkens/Röttgers (ed.), Reform der EU - Mit oder
ohne Mittel- und Osteuropa, 1996.
15
See the discussions in Capeletti (ed.), New Perspectives for a
Common Law of Europe, 1978; for a more recent analysis see
Hartkamp/Hesselink et al. (eds.), Towards a European Civil Code -
Second Revised and Expanded Edition, 1998.
16
Lando, Unfair Contract Clauses and a European Uniform Commercial
Code, in: Capeletti (ed.), New Perspectives for a Common Law of Europe,
1978, at 267 (282).
7
These circumstances led Ole Lando in 1976 to the conclusion that Europe
must move beyond harmonisation in private international law and must
prepare for the establishment of a body of uniform contract
law.17 He founded the Commission on European Contract
Law18 with the goal to work out common principles of contract
law for the countries of the EU. The commission presented the first
part of its Principles of European Contract Law (hereinafter
PECL ) in spring 199519 - shortly after UNIDROIT had
released its set of principles. In their first part the PECL
cover some fundamental principles of contract law and rules concerning
performance, non-performance and remedies in case of non-performance.
In 1997 this work was released in French - the second official language
of the commission.20 In November 1999, a new book covering
Part I and II of the PECL was released.21 The
PECL therefore now cover also the aspects of formation,
interpretation and validity of contracts as well as the authority of
agents. While an 'unofficial preview of the provisional complete and
revised version' that featured only the black-letter-rules but not the
commentary could have been obtained through the Internet,22
the publication of the new version of the PECL was unexpectedly
delayed for far too long.
17
For a detailed study cf. Reithmann/Martiny, Internationales
Vertragsrecht, 5th edition 1996, at 1 et seq.
18
Lando, Unfair Contract Clauses and a European Uniform Commercial
Code, in: Capeletti (ed.), New Perspectives for a Common Law of Europe,
1978, at 267 (282 et seq.); Lando, Principles of European Contract Law,
RabelsZ 1992, at 261 et seq.
19
Also known as the Lando-Commission in honour of its founder and
chairman.
20
Lando/Beale (eds.), Principles of European Contract Law - Part I:
Performance, Non-performance and Remedies, 1995.
21
Cf. de Lamberterie/Rouhette/Tallon (eds.), Les principes du droit
européen du contrat - L'exécution, l'inexecution et ses
suites, 1997.
22
Lando / Beale (eds.), Principles of European Contract Law - Parts I
and II, prepared by The Commission on European Contract Law, Kluwer Law
International: The Hague, London, Boston, 1999.
8
2. History and State of Affairs of the PECL
9
The PECL presented in 1995 and 1999 are very similar to the
UPICC .23 Their origins and the work of the drafting
groups were largely the same. The PECL are also formulated as
black-letter rules, which are complemented by a more or less detailed
commentary. Not surprisingly, both sets of rules show a fair deal of
cohesion in terms of their content.24 Their mutual inspiration
was facilitated by the fact that a number of experts served in both
drafting groups.25 In particular both chairmen, Lando and
Michael Joachim Bonell, were also members of the other group.
23
See <
24
Cf. Bonell, An International Restatement of Contract Law, 1997, at
85.
25
For a detailed comparison of their content see Bonell, Restatement
at 88 et seq.
10
The short period of time which lay between the initial presentation of
the two projects in 1994 and 1995 seems to suggest that there was
either a race of private initiatives in the field of harmonisation of
international contract law26 or a co-ordinated timing in the
presentation. One desired effect of the co-ordinated release of both
projects may well have been to enable a combined analysis of their
academic and practical value. Rather than a discussion on the value of
one of the projects, the analysis following the releases could have
revolved around a comparison of the two sets of rules. Such an analysis
would have been to the benefit of both projects. After preparation
lasting 23 years for the UPICC and 19 years for the PECL
both drafting groups must have felt that the value of their work would
not have been adequately recognised if the other project was presented
significantly earlier. Considering the number of scholarly writings,
the reports on the use in dispute settlement and the influence in
legislative activity27 one cannot deny the impression that
until today the PECL have remained in the shadow of the
UPICC . The UPICC are at the center of attention in
academic and practical debate. So far, the PECL play little more
than a minor role.
26
Bonell, An International Restatement of Contract Law, 1997, at 87,
fn. 7.
27
Berger, Creeping Codification of the Lex Mercatoria, at 67.
11
Interestingly enough, the delay of the publication of the 1999 version
has brought the PECL into conflict with another project which -
although entirely different in its outset - has the same ultimate goal.
The project for a European Contract Code by the Pavia Group around
Guiseppe Gandolfi is scheduled to publish its findings in early 2000.
In contrast to the UPICC the collaboration of the
Lando-Commission with the Pavia Group is negligible. The latter does
not intend to find principles of contract law which are common to all
national laws within the EU, but rather approaches the codification of
contract law with a pragmatic attitude by looking at the most
challenging topics of contract law such as the effect of contracts on
ownership of movables and immovables.28 After reviewing the
various national solutions, Gandolfi formulates a possible European
regulation of the issue, which is subsequently distributed to the
members of the Pavia Group for approval.29
28
Cf. also infra at The Success Story of the UPICC
29
Cf. presentation of the project by Guiseppe Gandolfi at the Centrum
fýr Europäisches Privatrecht at the Westfälische
Wilhelms-Universität zu Mýnster on 12 December 1998.
12
Bearing in mind on the one hand the recent publication of the 1999
version of the PECL and on the other hand the challenge from the
project by the Pavia Group, now is a crucial time for determining the
future of the PECL . If the PECL are to step beyond their
undoubted academic value and are to enjoy a future outside legal
textbooks, they must face the test of practice. They must be catapulted
to the forefront of attention in European legal research, education and
practice.30
30
For an overview of the project cf. Academy of European Private
Lawyers (ed.), Code Europeen des Contrats - Avant-Projet, at 1 et seq.
13
3. The Success Story of the UPICC
14
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 instruments31 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.
31
Cf. infra at Necessary Steps for the Future.
15
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 publications32 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
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 fýr ausländisches und internationales
Privatrecht in Hamburg.
16
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.
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 <
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
<
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 fýr 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 fýr
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.
17
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.
18
4. Specific Value of the PECL
19
What then is the value of the PECL ? Their future will be
essentially decided on the question whether it has its own 'market'.
Are the PECL and the UPICC two similar sets of rules for
the same purpose?46
46
Since 1994/95 the use of the UPICC was encouraged in all
cases of the Moot. The competition of 1998/99 even included a contract
which was solely governed by the UPICC .
20
The PECL focus on Europe. The Europeanisation of trade has long
taken place. Hence, the PECL cannot ride on the back of the
enthusiasm which this trend might have provided at earlier times.
Instead, the focus of EU debate is on its institutional reform and the
eastern enlargement. Legal harmonisation is not 'chic' in Brussels
today. But a solemn focus on the input which the PECL might
deliver for a European Contract Code or a European Civil Code is too
short-sighted. The volume of cross-border trade in the EU is immense.
For example, more than half of Germany's exports are devoted to the
other member states of the EU.47 Another ten per cent of
exports is devoted to Eastern Europe, whose countries are preparing for
an admission into the EU.48 Already today, the PECL can
be used in these transactions and the dispute settlements thereof.
While preparing a contract the parties may refer to the PECL as
a check list or use it as a reference for the definition of
terms.49 They may decide that the contract shall be governed
by the PECL either as the sole set of rules or as a
supplementary set siding the application of the CISG or a national law.
The choice of the PECL as governing law should be upheld by
arbitral tribunals, if their lex fori has incorporated the UNCITRAL
Model Law on International Commercial Arbitration.50 It is
thus argued that the PECL will establish themselves in European
trade while the UPICC will be the dominant set of rules used in
global trade surpassing the European borders.
47
Cf. Bonell, The UNIDROIT Principles of International Commercial
Contracts and the Principles of European Contract Law: Similar Rules
for the Same Purposes?, ULR 1996, at 229 et seq.; cf. also Bonell,
International Restatement of Contract Law, 1997, at 99 et seq.
48
Cf. Deutsche Bundesbank (ed.), Monatsbericht März 1999, at 64.
49
Cf. Deutsche Bundesbank (ed.), Monatsbericht März 1999, at 64.
50
For this mode of application with respect to the UPICC cf.
Bonell, International Restatement, 2nd ed., at 238 et seq.
21
However, three advantages of the PECL over the UPICC are
evident which could prove to be the catalyst for success of the
PECL .
22
First, the PECL in their complete version will deal with more
issues than the UPICC . The drafters of the PECL add to
the first version chapters on formation, interpretation, and validity
of contracts as well as the authority of agents. Whereas the question
of authority of agents is expressly excluded from the scope of matters
governed by the UPICC ,51 the complete version of the
PECL deal with this issue extensively.52 Not only does
it address the issue of direct representation, but also deals with the
questions arising from indirect representation.
51
Cf. Article 17 of the UNCITRAL Model Law. The UNCITRAL Model Law has
been incorporated into the German Code of Civil Procedure as of January
1, 1998. For a detailed study cf. Berger (ed.), Das neue deutsche
Schiedsverfahrensrecht / The New German Arbitration Law, 1998.
52
Cf. Art. 3.1 UPICC .
23
The future work of the Commission on European Contract Law focuses on
the one hand on the invalidity of contracts arising from illegality and
immorality. Once rules for these issues have been laid down, only
invalidity arising from lack of capacity will not be addressed by the
rules on validity in the PECL .53 On the other hand the
Commission is undertaking research on the questions of conditions,
interest on interest, set-off, assignment of claims, assumption of
debts, plurality of debtors and creditors, prescription, and discharge.
These issues are not addressed in the UPICC . Since their
combined launch in 1994/95 the Lando-Commission has been more vigorous
in tackling these new legal questions.54
53
Cf. Art. 3.101 - Art. 3.304 PECL .
54
Cf. Art. 4.101 PECL , which reads: 'This Chapter [concerning
validity] does not deal with invalidity from illegality, immorality or
lack of capacity.'
24
Second, the PECL set forth general rules for contract
law55 whereas the UPICC restrict their application to
commercial contracts.56 The term 'commercial' is intended to
exclude consumer contracts.57 The PECL , on the
contrary, expressly include consumer contracts in their scope. Such a
wide application may seem rather illusionary considering the conflict
of laws rules concerning consumer contracts commonly in operation in
the EU. On the one hand the rules protecting the consumer in their
country of domicile demand adherence irrespective of the choice of
law.58 On the other hand inclusion of arbitration agreements
in consumer contracts is restricted.59 The practical
imposition of the application to consumer contracts set aside, it is
already the mere orientation on consumer contracts which add value to
the PECL . By considering the rather weak position of consumers
in contract negotiation, academics and practitioners might find that
the drafters of the PECL have balanced the interests of the
parties more evenly and regulated certain legal questions in more
detail than the UPICC .
55
The UNIDROIT Working Group has only relatively recently resumed a
review of the current principles and work on issues such as agency,
limitations of actions, assignment of contractual rights and duties,
contracts for the benefit of a third party, set-off, and waiver.
Interestingly enough, the Working Group has assigned a special report
on the adaptations of the UPICC in the light of electronic
commerce; cf. Report on the First Session of the Working Group for the
preparation of a second enlarged edition of the Unidroit Principles of
International Commercial Contracts, reprinted at <
56
Art. 1.101 PECL .
57
As already their name suggests, cf. also Preamble of the
UPICC .
58
Bonell, An International Restatement of Contract Law, 1997, at 51.
59
Reithmann/Martiny, Internationales Vertragsrecht, at 633.
25
Finally, the overwhelming advantage of the PECL is their future
prospect of inclusion in a codification. No global treaty with respect
to contract law is foreseeable.60 Although the CISG is one of
the most successful international legal harmonisation
initiatives,61 its scope is limited,62 the options
for reservations numerous63 and a number of its articles
bitterly disputed.64 In Europe the chances for an overarching
codification of the contract law are much higher. Even though legal
harmonisation is not at the core of the Brussels bureaucracy today, the
force of economic integration increased by the introduction of the EURO
will demand a legal framework identical in all member states of the EU.
Legal harmonisation follows economic harmonisation. This has been the
experience of German unification at the end of the 19th century and the
beginnings of the European Communities in the 1950's and 60's.
60
Cf. § 1031 para. 5 ZPO (German Code of Civil Procedure): If a
consumer is involved, arbitration agreements must be signed as a
separate document.
61
In fact the lack of this prospect brought UNIDROIT in the first
place to the conclusion that it should not opt for a draft convention
but rather non-binding set of rules; cf. Bonell, A Restatement of
Principles of International Commercial Contracts: An Academic Exercise
or A Practical Need?, RDAI 1988, at 873 (886).
62
For an updated list of the countries that have signed and adopted
the Convention, turn to <
63
See Art. 1 - 5 CISG. The CISG is narrowed to apply only to sales
contracts. Consumer purchases - though not consumer sales - as well as
combined contracts with a dominating service element are excluded. Even
if applicable, the CISG itself does not address questions concerning
the validity of the contract nor the effect on the ownership of the
sold goods. It leaves these questions to be regulated by the national
law applicable by virtue of the conflicts of laws rules.
64
See Art. 92 et seq. CISG. Especially the reservation of the writing
requirement for the conclusion, amendment or termination of the
contract (Art. 96, 12 CISG) might pose problems with respect to the
trade on the internet.
26
Europe shares a common legal tradition often referred to as the ius
commune .65 Although in parts greatly different, the
various national laws have Roman law as their common core. British
common law with its apparently distinct difference is undergoing
Europeanisation by developing more statutory law. The differences
between the United Kingdom and the civil law continent are constantly
decreasing66 thus enabling the integration of the British
system into the European development of a common civil or contract
code.
65
See only the relationship between Art. 48 and 49 CISG.
66
cf. in general Knýtel, Rechtseinheit in Europa und
römisches Recht, in ZeuP 1994, at 244 et seq.
27
The work of the Lando-Commission was backed by the European Parliament
in a resolution in 1993.67 With the parliament gaining in
strength and influence in the EU, this fostering relationship will be
of some importance towards the inclusion of the PECL in the
process of harmonisation.
67
Gordley, Common law und civil law: eine ý berholte
Unterscheidung, in ZeuP 1993, at 498 et seq.
28
5. Necessary Steps for the Future
29
The drafting of a European contract code is still far off. However, the
PECL must leave the shadow of the UPICC now and must be
taken to the 'market'. This requires a widely diversified marketing
strategy aimed at research as much as at education and practice.
30
Research into the PECL should be encouraged by conferences such
as the symposium held in early 1999 at the
Max-Planck-Institut.68 European journals may concentrate on
the presentation of essays on the PECL focusing on a comparison
with both national laws of the EU and international legal instruments
such as the UPICC and the CISG.69 Spread of research
books and essays could be increased by an Internet database similar to
the one provided for the CISG.
68
Resolution of 6 May 1994 (Dok. A3 - 0329/94), Official Journal of
the European Communities C 205/518.
69
'Europäische Vertragsrechtsvereinheitlichung und deutsches
Recht'; papers to be published at the end of 1999 in a joint issue of
the AcP and the RabelsZ.
31
The text of the PECL should be made available to students and
practitioners at attractive prices.70 Students could be
encouraged to evaluate their national legal problems by comparison to
the solution found in the PECL . Furthermore, law faculties
across Europe should be encouraged to organise a Moot competition which
focuses on the fragmentarily harmonised private law as well as the
PECL .71 While the well established Jessup-Moot Court
has its European counterpart,72 the Willem C. Vis
International Commercial Arbitration Moot has not. There is a gap
to be filled.
70
See for a first practice of this the contributions in the newly
established European Journal of Law Reform, Vol.1 (1999) No. 3.;
however, the contributions still focus largely on the UPICC .
71
Cf. a planned publication including both the UPICC and the
PECL : Centre for Transnational Law (CENTRAL) (ed.), Applying
Transnational Principles in Commercial Practice - A Reference Guide,
1999.
72
Cf. Flessner, Rechtsvereinheitlichung durch Rechtswissenschaft und
Juristenausbildung, RabelsZ 56 (1992), at 243 et seq.
32
Practitioners must be made familiar with the application of the
PECL in drafting contracts as well as dispute settlement. One
could also look at a revision of the 1980 Rome Convention to allow for
the choice of rules of law such as the PECL as the law governing
the contract.
33
Most important, however, is the institutionalisation of the Commission
on European Contract Law with similar facilities as UNIDROIT. Instead
of dissolving the Commission after the presentation of their next
results, it should be integrated into a wider institution devoted to
the unification of private law in Europe. Such an institution could
speedily enable the translation of the PECL into all European
languages and could encourage the implementation of the internet
database, the academic work in the European journals and the Moot
competition.
34
Unless such measures are taken in the near future, the success of the
PECL is in danger. The careful work of several decades could be
lost or at least diminished to that of an interesting comparative law
study. The result would be a long delay in the European harmonisation
process for many years, which is nothing less than an economically
significant lost opportunity. The legal profession would have failed to
serve the European people.
35
6. Endnotes
36
* This article coincides with the publication of Part I and II of the
Principles of European Contract Law prepared by the Commission on
European Contract Law. Published in the "The Vindobona Journal of
International Commercial Law and Arbitration" Volume 3 Issue 1, 1999
ISSN 1439-9741
37
1. Scholarship-holder of the Graduiertenkolleg 'Europäisches
Privat- und Wirtschaftsrecht' at the Humboldt-Universität zu
Berlin. Friedrich Blase is also the current Chancellor of the MAA
(FBLASE@MAA.NET).
38
Endnotes
39
Endnotes