International business transactions

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OUTLINE International Business Transactions
Party Autonomy

  • CISG

    • Art 6  “The parties my exclude the application of the Convention or, subject to article 12, derogate from or vary the effect of any of its provisions.”

  • UNIDROIT Principles

    • Art. 1.1  “The parties are free to enter into a contract and to determine its content”

    • Art. 1.4.  “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 intl law.”

      • Does not discuss whether, in addition to mandatory rules of the forum and of the lex contractus, those of third States are also to be taken into account and if so, to what extent and on the basis of which criteria.

      • Comment says these questions are to be settled in accordance with the rules of private intl law which are relevant in each particular case (i.e. Art 7 of Rome Convention)

    • Art. 1.5  “The parties may exclude the application of these Principles or derogate from or vary the effect of any of their provisions, except as otherwise provided in the Principles.”

      • Exclusion/modification may be express or implied

      • Mandatory provisions to be found in the Principles

        • A few provisions of the Principles are of a mandatory character

          • Art. 1.7 on good faith and fair dealing

          • Ch. 3 provisions on substantive validity, except insofar as they relate or apply to mistake and to initial impossibility (Art. 3.19)

          • Art. 5.1.7(2) on price determination

          • Art. 7.4.13(2) on agreed payment for non-performance

          • Art. 10.3(2) on limitation periods

        • Exceptionally, the mandatory character of a provision is only implicit and follows from the content and purpose of the provision itself  Arts. 1.8 and 7.1.6

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