bluuebunny/crossref_metadata_2025 huggingface dataset:
Introduction to Section 7.3 of the PICC
Authors: Huber Peter
Published: June 2017

Section 7.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with the aggrieved party's right to terminate the contract if the other party does not perform. However, the PICC also severely restrict the scope of termination as a remedy. The crucial question is not whether there is a right to terminate, but rather when it will be available to the aggrieved party. Art 7.3.1(1) accepts the doctrine of fundamental breach as the basic rule for the availability of termination. For cases of delay, Art 7.3.1(3) introduces the Nachfrist mechanism. The basic structure of the system of remedies in Section 7.3 bears a strong resemblance to both the Commission on European Contract Law, Principles of European Contract Law (1998), and the United Nations Convention on Contracts for the International Sale of Goods (CISG) regimes.
Authors: Huber Peter
Published: June 2017

This commentary analyses Article 7.3.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning adequate assurance of due performance. Like Art 7.3.3, Art 7.3.4 relates to cases of ‘anticipatory breach’. In that context, Art 7.3.4 provides remedies for those cases which do not reach the high standard of probability required for the right to terminate under Art 7.3.3. Under Art 7.3.4, 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 resort to termination. This commentary discusses the requirements and consequences of adequate assurance of performance and the right to withhold own performance.
Authors: Huber Peter
Published: June 2017

This commentary analyses Article 7.3.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the general effects of a lawful termination. Lawful termination refers to a termination which has been declared (in time) and which is based on a valid ground for termination. According to Art 7.3.5, termination of the contract releases both parties from their obligation to effect and to receive future performance. Termination does not preclude a claim for damages for non-performance and has no effect on any provision in the contract for the settlement of disputes or any other term of the contract which is to operate even after termination. This commentary discusses release from future performance obligations, autonomy of ‘termination-resistant’ provisions, effects of unlawful termination, and proprietary aspects of rules in Arts 7.3.5–7.3.7.
Authors: Huber Peter
Published: June 2017

This commentary analyses Article 7.3.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning restitution with respect to contracts to be performed over a period of time. When a contract to be performed over a period of time is terminated, Art 7.3.7 stipulates that restitution can only be claimed for the period after termination has taken effect, provided the contract is divisible. The purpose of this provision is to exclude retroactive restitution after termination of a divisible contract which was to be performed over a period of time, based on the idea that ‘it may be inconvenient to unravel performances that may have been made, in the past, over a long period of time’.
Authors: McKendrick Ewan
Published: June 2017

This commentary analyses Article 7.4.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the right of the aggrieved party to recover damages. According to Art 7.4.1, any non-performance gives the aggrieved party a right to damages either exclusively or in conjunction with any other remedies except where the non-performance is excused under these Principles. The right of the aggrieved party to recover damages depends upon proof of non-performance by the other party to the contract. There is no requirement that the aggrieved party prove that the non-performance was attributable to the fault of the other party to the contract. Proof of fault may be relevant when deciding whether or not there has been non-performance, but fault is not the touchstone of liability in damages. Rather, the non-performance is what triggers liability in damages. The burden of proof is upon the aggrieved party to prove the non-performance of the defendant, and upon the defendant to prove that its non-performance was excused.
Authors: McKendrick Ewan
Published: June 2017

This commentary analyses Article 7.4.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning full compensation to which the aggrieved party is entitled for harm sustained as a result of non-performance. According to Art 7.4.2, such harm includes both any loss which the aggrieved party suffered and any gain of which it was deprived, taking into account any gain to the aggrieved party resulting from its avoidance of cost or harm. Such harm may be non-pecuniary and includes, for instance, physical suffering or emotional distress. The burden of proof is upon the aggrieved party to prove that it has suffered the harm in respect of which the claim has been brought, that (for example, in the case of non-pecuniary harm) it is entitled to recover damages in respect of that loss, and that the harm was suffered as a result of the defendant's non-performance.
Authors: McKendrick Ewan
Published: June 2017

This commentary analyses Article 7.4.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the foreseeability of harm. According to Art 7.4.4, the non-performing party is liable only for harm which it foresaw or could reasonably have foreseen at the time of the conclusion of the contract as being likely to result from its non-performance. This rule places a limit on the liability of the non-performing party. This commentary discusses the concept of foresight enshrined in Art 7.4.4, the phrases ‘could reasonably have foreseen’, ‘at the time of the conclusion of the contract’, and ‘likely to result’ as they relate to the foreseeability of harm. It also considers intentional or grossly negligent non-performance and the burden of proof of the aggrieved party to establish the foreseeability of harm.
Authors: McKendrick Ewan
Published: June 2017

This commentary analyses Article 7.4.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning proof of harm by current price. If the aggrieved party has terminated the contract and has not made a replacement transaction but there is a current price for the performance contracted for, Art 7.4.6 stipulates that it may recover the difference between the contract price and the price current at the time of termination as well as damages for any further harm. The aim of Art 7.4.6 is to provide a measure of certainty by stipulating the measure of damages recoverable in the case where the aggrieved party has not entered into a replacement transaction. The burden of proof is upon the aggrieved party to prove that it was entitled to terminate the contract between the parties and that there is a ‘current price’, and upon the non-performing party to prove that the aggrieved party did enter into a replacement transaction.
Authors: McKendrick Ewan
Published: June 2017

This commentary analyses Article 7.4.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning harm due in part to the aggrieved party. Art 7.4.7 deals with the case in which the harm suffered by the aggrieved party stems in part from its own act or omission or to an event for which it bears the risk. In such a case, the amount of damages shall be reduced to the extent that these factors have contributed to the harm, having regard to the conduct of each of the parties. The principle enshrined in Art 7.4.7 is equivalent in English law to the principle of contributory negligence. The burden of proof is upon the non-performing party to establish that the harm was due in part to an act or omission of the aggrieved party or to another event as to which the aggrieved party bears the risk.
Authors: McKendrick Ewan
Published: June 2017

This commentary analyses Article 7.4.8 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning mitigation of harm. Under Art 7.4.8, the non-performing party is not liable for harm suffered by the aggrieved party to the extent that the harm could have been reduced by the latter party's taking reasonable steps. The aggrieved party is entitled to recover any expenses reasonably incurred in attempting to reduce the harm. Art 7.4.8 avoids the misleading language of ‘duty’ and instead describes the effect of a failure to mitigate on the liability of the non-performing party. This commentary also discusses the burden of proof relating to mitigation of harm.
Authors: McKendrick Ewan
Published: June 2017

This commentary analyses Article 7.4.9 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning interest for failure to pay money. If a party does not pay a sum of money when it falls due, Art 7.4.9 stipulates that the aggrieved party is entitled to interest upon that sum from the time when payment is due to the time of payment whether or not the non-payment is excused. The aggrieved party is entitled to additional damages if the non-payment caused it a greater harm. This commentary explains how the rate of interest is determined as well as the burden of proof relating to the rate at which interest is payable.
Authors: McKendrick Ewan
Published: June 2017

This commentary analyses Article 7.4.10 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning interest on damages. Art 7.4.10 is concerned with the award of interest for the non-performance of non-monetary obligations. It does not purport to identify the rate at which interest is payable: it simply identifies the time at which the right to recover interest accrues. Both the text of Art 7.4.10 and the Official Comment are silent on the issue of the rate of interest that is payable. However, it is explicitly confirmed in the Official Comment that Art 7.4.10 takes ‘no stand on the question of compound interest’. Furthermore, the Official Comment states that, ‘when making the final assessment of the harm, regard is to be had to the fact that damages are awarded as from the date of the harm, so as to avoid double compensation’. As for burden of proof, the aggrieved party must prove the non-performance of a non-monetary obligation as well as the time of the non-performance.
Authors: McKendrick Ewan
Published: June 2017

This commentary analyses Article 7.4.11 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the manner of monetary redress. According to Art 7.4.11, damages are to be paid in a lump sum. However, they may be payable in instalments where the nature of the harm makes this appropriate. Damages to be paid in instalments may be subjected to indexation. This provision was considered to be ‘the mode of payment best suited to international trade’. A lump sum payment enables the parties to settle their dispute, draw a line under their relationship (assuming the contract to have been terminated), and move on to new contractual relationships elsewhere. It also avoids the administrative burdens associated with periodical payments of damages.
Authors: McKendrick Ewan
Published: June 2017

This commentary analyses Article 7.4.13 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the agreed payment for non-performance. Art 7.4.13 applies where a term of the contract provides that ‘a party who does not perform is to pay a specified sum to the aggrieved party for such non-performance’. According to Art 7.4.13, the aggrieved party is entitled to recover the specified sum from the non-performing party and it can do so irrespective of the harm which it has in fact suffered as a result of the non-performance. However, the specified sum may be reduced to a reasonable amount where it is grossly excessive in relation to the harm resulting from the non-performance and to the other circumstances. This commentary discusses the scope of Art 7.4.13 and the burden of proof relating to payment for non-performance.
Introduction to Chapter 8 of the PICC
Authors: Pichonnaz Pascal
Published: June 2017

Chapter 8 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with set-off. Set-off, also known as compensation, is generally defined as a mechanism by which two (or more) reciprocal obligations of an obligor (debtor) and an obligee (creditor) can be extinguished up to the level of the smaller amount if the requirements fixed by the applicable law are met. It is therefore an effective and simplified way of discharging a party's obligation, avoiding overlapping payments (‘circuity of payment’) or performances. Chapter 8 addresses the issue of set-off in five provisions: conditions of set-off, foreign currency set-off, set-off by notice, content of notice, and effect of set-off. It considers set-off in the case of assignment of rights, transfer of obligations, assignment of a contract, and when the obligation is affected by the limitation period.
Authors: Pichonnaz Pascal
Published: June 2017

This commentary analyses Article 8.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning content of notice. According to Art 8.4, the notice must specify the obligations to which it relates. If the notice does not specify the obligation against which set-off is exercised, the other party may, within a reasonable time, declare to the first party the obligation to which set-off relates. If no such declaration is made, the set-off will relate to all the obligations proportionally. This commentary discusses the consequences of absence of specification by the first party, with particular emphasis on multiple obligations of the other party, multiple obligations of the first party, and multiple obligations on both sides. It also considers the burden of proof relating to content of notice.
Authors: Pichonnaz Pascal
Published: June 2017

This commentary analyses Article 8.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the effect of set-off. According to Art 8.5, set-off discharges the obligations; if obligations differ in amount, set-off discharges the obligations up to the amount of the lesser obligation; set-off takes effect as from the time of notice. In order for the discharging effect of set-off to take place, the requirements of Art 8.1, as well as notice by the first party under Art 8.3, must be fulfilled. This commentary discusses the principle underlying the discharging effect of set-off, the scope of the discharging effect, and the prospective effect of set-off, specific consequences of set-off, and burden of proof relating to set-off.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.1.2 of the UNIDROIT Principles of International Commercial Contracts (PICC). According to Art 9.1.2, Section 9.1 of the PICC does not apply to transfers made under the special rules governing the transfers of instruments such as negotiable instruments, documents of title or financial instruments, or of rights in the course of transferring a business. This means that Section 9.1 of the PICC still applies with respect to such instruments or rights if they were assigned by way of a ‘normal’ assignment; that is, not under the special rules. However, the Official Comment makes clear that this is only valid if such transfer is allowed under the domestic law. The Official Comment mentions the bill of exchange as a negotiable instrument, the documents of title mentioned in the Official Comment are bills of lading or warehouse receipts — and the financial instruments are stocks and bonds.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.1.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the assignability of non-monetary rights. For a better understanding of Art 9.1.3, it is important to bear in mind the rule stated in Art 9.1.8, which provides for the right of the obligor to be compensated by the assignor or the assignee for any additional costs caused by the assignment. It was considered that the remedy set forth in Art 9.1.8 may not be sufficient when the assignment concerns a right to non-monetary performance, and therefore Art 9.1.3 was introduced. According to Art 9.1.3, a right to non-monetary performance may be assigned only if the assignment does not render the obligation significantly more burdensome. This commentary discusses obligations that are significantly more burdensome as well as the effects of transfer of a right to non-monetary performance, especially with respect to the obligee and obligor.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.1.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the assignment of future rights. According to Art 9.1.5, a future right is deemed to be transferred at the time of the agreement, provided the right, when it comes into existence, can be identified as the right to which the assignment relates. This commentary discusses future right as defined by the PICC, along with the relevant elements, relevant time, time and effort, and irrelevance of the obligor's perspective for the effectiveness of the assignment of future rights. It also considers the effects if right comes or does not come into existence.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.1.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning a right assigned by mere agreement between the assignor and the assignee. Art 9.1.7 stipulates that a right is assigned by mere agreement between the assignor and the assignee, without notice to the obligor. The consent of the obligor is not required unless the obligation in the circumstances is of an essentially personal character. The fact that an agreement in writing is not required is implied by the reference to a ‘mere’ agreement. However, some formal requirements may apply due to mandatory rules of the applicable domestic law which apply under Art 1.4. Some legal systems distinguish between the effectiveness of the assignment of a right as between the assignor and the assignee (inter partes) and as towards third parties, such as the obligor or creditors (erga omnes). This commentary also considers the burden of proof relating to the essentially personal character of the obligation.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.1.8 of the UNIDROIT Principles of International Commercial Contracts (PICC). According to Art 9.1.8, the obligor has a right to be compensated by the assignor or the assignee for any additional costs caused by the assignment. The additional costs for which the obligor claims compensation must be caused by the assignment of a right; that is, they must be a direct consequence of it. In particular, additional costs may be caused by the fact that performance has to be rendered at a different place or to more than one obligee in the case of a partial assignment. This commentary discusses additional costs relating to change of place of performance and partial assignments, as well as the obligor's right to choose to claim compensation from either the assignor or the assignee.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.1.10 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning notice of assignment received by the obligor from either the assignor or the assignee. Under Art 9.1.7 the assignment of a right is effective between the assignor and the assignee as the result of their agreement. As the consent of the obligor is not required, Art 9.1.10 was introduced to protect the obligor. According to Art 9.1.10(1), until the obligor receives valid notice of the assignment, it is discharged by paying the assignor. The effect of the notice on the obligor is that the assignment becomes effective towards it and that it is no longer discharged by paying the assignor. This commentary discusses the rationale and effects of the notice on the obligor, valid notice, notice instead of knowledge, rights to non-monetary performance, the issue of relevant time with respect to the notice to be given, and revocation of the notice made to the obligor.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.2.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning third party performance. Under Art 9.2.6, third party performance is allowed and the consent of the obligee is not required. Accordingly, the obligee cannot refuse to accept performance when it is offered by a third party. An exception is made for obligations which are of an essentially personal character. Under such circumstances, the consent of the obligee is required; otherwise the agreement between the obligor and the third party is ineffective towards the obligee. The obligee retains its claim against the obligor until the obligation has been duly performed.
Introduction to Chapter 10 of the PICC
Authors: Wintgen Robert
Published: June 2017

Chapter 10 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with ‘limitation periods’. The chapter, which was added to the 2004 edition of the PICC but was not amended in the 2010 edition, generally follows an international trend, but some of its provisions are quite unusual in comparison with most domestic laws. Arguably, these provisions cannot be considered as general principles of law or lex mercatoria. In respect of limitation periods, arbitral tribunals should therefore consider carefully whether it is possible to follow the opinion that ‘a reference to lex mercatoria or general principles of law can nowadays be regarded as a choice of the UNIDROIT Principles’.
Authors: Wintgen Robert
Published: June 2017

This commentary analyses Article 10.1 of the UNIDROIT Principles of International Commercial Contracts (PICC). Art 10.1 provides an overview of the scope of Chapter 10 of the PICC concerning ‘limitation periods’. According to this provision, the exercise of rights governed by the PICC is barred by the expiration of the limitation period. Chapter 10 does not govern the time within which one party is required under the PICC, as a condition for the acquisition or exercise of its right, to give notice to the other party or to perform any act other than the institution of legal proceedings. This commentary discusses the rights governed by the PICC, exclusion of notice requirements with regard to limitation periods, and prevailing mandatory rules of domestic law on limitation periods. It also considers the implications of inconsistent behaviour, good faith and fair dealing for limitation periods.
Authors: Wintgen Robert
Published: June 2017

This commentary analyses Article 10.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning modification of limitation periods by the parties. Under Art 10.3, the parties are allowed to modify the limitation periods. However, the parties may not shorten the general limitation period to less than one year, shorten the maximum limitation period to less than four years, or extend the maximum limitation period to more than fifteen years. This commentary discusses the possibility of modification under Art 10.3(1), with particular emphasis on modification by the parties as distinguished from other techniques, different kinds of modification, and means of modification. It also considers limits to modifications under Art 10.3(2), including limits in respect of the general period and limits in respect of the maximum period, along with the effect of agreements on limitation periods in violation of Art 10.3(2).
Authors: Wintgen Robert
Published: June 2017

This commentary analyses Article 10.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the suspension of the running of the limitation period by arbitral proceedings. If arbitral proceedings are recognised by a legal system, the institution of such proceedings must logically have a similar effect on the running of limitation periods as the institution of judicial proceedings. Under Art 10.6, the running of the limitation period is suspended when the obligee performs any act, by commencing arbitral proceedings or in arbitral proceedings already instituted, that is recognised by the law of the arbitral tribunal as asserting the obligee's right against the obligor. This commentary considers the beginning of suspension of the running of the limitation period under Art 10.6(1) and the end of suspension under Art 10.6(2).
Authors: Wintgen Robert
Published: June 2017

This commentary analyses Article 10.10 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the right of set-off with regard to limitation periods. Under Art 10.10, the obligee is entitled to exercise the right of set-off until the obligor has asserted the expiration of the limitation period. At first glance, the provision seems to be a logical consequence of the principle that the time-barred right is not extinguished and that it can still be relied on as a defence. In most major legal systems, however, payment by means of set-off with a time-barred claim is only possible under certain circumstances. In order to prevent the use of time-barred claims for the purpose of set-off, the burden of proof with regard to payment of these claims is on the obligee once the limitation period has expired.
Authors: Wintgen Robert
Published: June 2017

This commentary analyses Article 10.11 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the right of restitution with regard to limitation periods. Under Art 10.9(1), the expiration of the limitation period does not extinguish the right but only bars its enforcement, thus making the time-barred obligation a legal ground for voluntary performance. If there has been performance in order to discharge an obligation, Art 10.11 stipulates that there is no right of restitution merely because the limitation period has expired. The use of the word ‘merely’ implies that a restitutionary claim can be based on grounds other than the expiry of the limitation period.
Introduction to Section 11.1 of the PICC
Authors: Meier Sonja
Published: June 2017

Section 11.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with the plurality of obligors in a contractual setting. Questions of a plurality of obligors arise in various circumstances. Several obligors may jointly bind themselves towards the obligee in a single promise or a single contract. If is only one obligor, a second party may bind itself towards the obligee to perform the same obligation. Several persons may be responsible for the same damage, or may have stood surety for the same debt. Section 11.1 describes two kinds of plurality, namely joint and several obligations, on the one hand, and separate obligations, on the other hand, with a default rule in favour of joint and several obligations. It also addresses rules for joint and several obligations, the relationship between obligors and obligee, and the internal relationship between the obligors.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.1.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the effects of a release or settlement agreed upon by the obligee and all the obligors. Under Art 11.1.6, release of one joint and several obligor, or settlement with one joint and several obligor, discharges all the other obligors for the share of the released or settling obligor, unless the circumstances indicate otherwise. When the other obligors are discharged for the share of the released obligor, they no longer have a contributory claim against the released obligor under Article 11.1.10. This commentary discusses the possible consequences of the release of one obligor, including partial discharge of the remaining obligors and full discharge of all obligors. It also considers the presumption of partial discharge, the effect of an increase of the contributory shares, and waiver of joint and several liability.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.1.12 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning defences available to a joint and several obligor against whom a contributory claim is made by the co-obligor who has performed the obligation. Whereas Art 11.1.4 deals with defences and rights of set-off that can be raised by an obligor against the obligee requiring performance, Art 11.1.12 answers the question of whether an obligor may raise defences or rights of set-off against a co-obligor which has performed more than its share and now seeks contribution under Art 11.1.10. This commentary discusses common defences that can be raised by all the obligors against the obligee, the rule on personal defences, personal defences of other obligors, and common and personal rights of set-off.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.1.13 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the joint and several obligor's inability to recover contribution from a co-obligor. The contributory claims by the performing obligor against its co-obligors under Art 11.1.10 are separate: each obligor has to render contribution only in the amount of its internal share. Art 11.1.13 provides for an increase in the shares of the obligors not only in the event of the insolvency of one of them, but in all cases where the performing obligor is unable to recover contribution from another obligor. Where contribution cannot be recovered from one or more obligors, the shares of the remaining obligors have to be recalculated. The loss is spread in proportion to the respective shares, not equally.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.2.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the effects of joint and several claims. Under Art 11.2.2, full performance of an obligation in favour of one of the joint and several obligees discharges the obligor towards the other obligees. If the obligor is discharged by performance to any one of the obligees, it implies that it has the right to choose the recipient of its performance. However, this right has been restricted in the civil law tradition, where the majority of legal systems provide that the obligor which has been sued by one of the joint and several obligees can no longer discharge itself by performance to a different obligee, at least as long as the proceedings are pending. The PICC do not contain further rules as to the way in which the obligees can invoke the remedies set out in Chapter 7. In this case, each obligee appears to be entitled to claim damages for the loss it suffered as a result of a non-performance.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.2.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning defences that the obligor may assert against joint and several obligees. According to Art 11.2.3, the obligor may assert against any of the joint and several obligees all the defences and rights of set-off that are personal to its relationship to that obligee or that it can assert against all the co-obligees. However, the obligor may not assert defences and rights of set-off that are personal to its relationship to one or several of the other co-obligees. This provision stems from the drafters' view that plurality of obligees is, to a certain extent, a mirror image of plurality of obligors. This commentary discusses the rule on performance and set-off, the effect of a merger of obligations between the obligor and one of the obligees, the consequences of release and settlement by one of the joint and several obligees, limitation periods with regard to claims of the co-obligees, and effect of court judgment on the obligees.
Introduction
Authors: Denza Eileen
Published: June 2017

This introductory chapter outlines the development of the Vienna Convention on Diplomatic Relations, an international treaty that defines a framework for diplomatic relations between sovereign States. It elaborates three key details why the Convention serves as an important legal framework that regulates international relations. First, the Convention guarantees the efficacy and security of the machinery through which States conduct diplomacy, and without this machinery States cannot construct law, whether by custom or by agreement on matters of substance. The Convention constitutes the procedural framework for the construction of international law and international relations. Secondly, reciprocity forms a constant and effective sanction for the observance of nearly all the rules of the Convention, such as the treatment of representatives or diplomats abroad. Thirdly, the Convention never loses sight of the need to find solutions which would be acceptable to governments and to national Parliaments as a whole.
Appointment of the Staff of the Mission
Authors: Denza Eileen
Published: June 2017

This chapter considers Article 7 of the Vienna Convention on Diplomatic Relations which deals with the appointment of the members of the diplomatic mission to foreign States. According to the Article, the State may freely appoint and dismiss the members of the staff of the mission, and that in case of military, naval, or air attachés, the State may require the submission of their names for approval. Subject to Article 9, the receiving State may declare persona non grata or unacceptable before arrival to any member of the mission. In addition, the Article confers the sending State the freedom to specify the functions of each member. The State specifies them classifies them as either part of the diplomatic staff, administrative staff, or technical staff. As Article 7 deals with members of the staff of the diplomatic mission, the chapter also discusses a member’s exemptions from a receiving State’s immigration control and the immunity from employment claims.
Nationality of Diplomatic Staff
Authors: Denza Eileen
Published: June 2017

This chapter analyses Article 8 of the Vienna Convention on Diplomatic Relations which discusses the nationality of the diplomatic staff. The Article states the general principle that members of the diplomatic staff should be of the nationality of the sending State, and that the members may be appointed among persons having the same nationality of the receiving State as long as there is consent of that State. This consent may be withdrawn at any time. In addition, the Article expresses that the receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State. The requirement for consent of the receiving State under the Article applies only to appointment of diplomatic staff and does not extend to the administrative and technical staff.
Notification of Staff Appointments and Movements
Authors: Denza Eileen
Published: June 2017

This chapter considers Article 10 of the Vienna Convention on Diplomatic Relations which contains provisions regarding the notification of staff appointments and arrival and departure of members of diplomatic missions. Article 10 states that the receiving State, through its Ministry for Foreign Affairs, prior to the meeting shall be notified of the appointment, time of arrival, and time of final departure of the members of the mission. The Article also expresses that the Ministry is also notified of the time of arrival and departure of the relatives and private servants of the members of the mission. As they will be staying at the receiving State temporarily, the Article states that the members, along with their relatives and personal servants, are entitled to privileges and immunities. All of these notifications are usually compiled in a general list or diplomatic register. The chapter describes how the formation of the register varies from State to State.
Size of the Mission
Authors: Denza Eileen
Published: June 2017

This chapter explores Article 11 of the Vienna Convention on Diplomatic Relations which deals with the appropriate size of the diplomatic mission. Before the mission, both of the sovereign States involved can agree on its size. If there is no prior agreement, then the receiving party may require the size to be reasonable and normal. The Article also states that the receiving State may refuse to accept officials of a particular category. The International Law Commission decided that a balance must be struck between the interests of the sending and the receiving State. The chapter then highlights the controversy that emerged due to the text used in the second paragraph that certain nations such as United States became unhappy with the phrase ‘that the receiving State may refuse to accept officials of a particular category’ even though the Commission stresses that it non-discriminatory and is used in the context of the first paragraph regarding the size of the mission.
Precedence among Heads of Mission
Authors: Denza Eileen
Published: June 2017

This chapter discusses Articles 16, 17, and 18 of the Vienna Convention on Diplomatic Relations. Article 16 states that, in accordance with Article 13, heads of diplomatic missions take precedence in their respective classes in the order of the date and time of taking up their functions. It also states that any alterations made in the credentials of a head of mission that does not involve the changing of class shall not affect precedence. Lastly, the Article states that it is not prejudiced regarding the precedence of the representative of the Holy See. Article 17 on the other hand states that Ministry for Foreign Affairs or other similar body shall be notified of the precedence of the diplomatic staff, while Article 18 expresses that the procedure to be observed between each respective State for the reception of heads of mission shall be uniform in respect of class.
Exemption of Official Fees from Taxation
Authors: Denza Eileen
Published: June 2017

This chapter explores Article 28 of the Vienna Convention on Diplomatic Relations. The Article states that the fees and charges levied by the diplomatic mission in the course of its official duties shall be exempt from all dues and taxes. The Article serves as one of the fastest to finalize by the International Law Commission, as the principle of exempting tax during a diplomatic mission is universally accepted between sovereign States. For the most part, fees and charges levied by a diplomatic mission are likely to relate to functions which might be regarded as consular in nature—for example, passport and visa fees and charges for authenticating or legalizing documents. Possible restrictions and rules applicable where a diplomatic mission performs consular functions are discussed in the context of Article 3 of the Convention.
Inviolability of Residence and Property
Authors: Denza Eileen
Published: June 2017

This chapter looks into Article 30 of the Vienna Convention on Diplomatic Relations which deals with the inviolability of a diplomatic agent’s residence and property. Under Article 30, the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission. The agent’s papers, correspondence, and property shall likewise enjoy inviolability except as provided in Article 31.3. The chapter elaborates the scope of the inviolability in terms of private residences, papers and correspondence, property, and also exchange control. In addition, it also discusses the removal or towing away of motor vehicles of the diplomatic agent.
Professional or Commercial Activity by Diplomat
Authors: Denza Eileen
Published: June 2017

This chapter examines Article 42 of the Vienna Convention on Diplomatic Relations which specifies the professional or commercial activity done by a diplomat. Article 42 states that a diplomatic agent shall not practise for personal profit any professional or commercial activity in the receiving State. The basis of the Article comes from the notion that it would give the sending State assurance that its diplomatic agents abroad would limit their activities to their official duties. It would assist the receiving State by eliminating difficult problems, and would enhance the dignity of the diplomatic corps accredited to its government. Lastly, it would serve to protect diplomatic agents from any suggestion that they might be using the prestige of their office to further their outside interests. In addition, the chapter also describes the relationship between Article 42 and Articles 31.1 (c) which deals with immunity and 34 (d) which tackles taxes on private income.
Acquisition of Nationality
Authors: Denza Eileen
Published: June 2017

This chapter examines Optional Protocol concerning the Acquisition of Nationality to the Vienna Convention on Diplomatic Relations. Prior to the Convention, the position was that States which conferred their nationality as a matter of course on children born within their territory. The optional protocol of acquiring nationality formulated by the International Law Commission extends this rule. Under the protocol, a child whose father or mother is a member of a diplomatic mission of whatever rank and is not a national of the receiving State will not automatically acquire the nationality of the receiving State by virtue of birth within its territory. The exception therefore includes a child born to a father who is a member of the service staff of the mission and whose wife is a national of the receiving State, the illegitimate child born to a woman member of the mission, a child born to the sister of a diplomat married to a national of the receiving State, and a child born to a woman member of the mission married to a national of the receiving State.
The Law of Investment Treaties
Authors: Salacuse Jeswald W
Published: June 2017

The rapid growth in investment treaties has led to a burgeoning number of international arbitration decisions that have applied and interpreted treaty provisions in disputes between investors and states concerning their respective rights. This flurry of treaties and arbitral decisions has seen the creation of a new branch of international law - the law of investment claims. In this revised second edition, Jeswald Salacuse examines the law of international investment treaties, specifically in relation to its origins, structure, content, and effect, as well as their impact on international investors and investments, and the governments that are parties to them. Specific topics include conditions for the entry of foreign investment and general standards of treatment of foreign investments; monetary transfers; operational conditions; protection against expropriation; dispossession and compensation for losses; dispute settlement, including negotiation, arbitration, and conciliation; and judicial proceedings.
The Underlying Principles of Freedom of Religion or Belief—Towards a Holistic Conceptualization
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter discusses the underlying principles of freedom of religion or belief. While having its specific features as well as specific areas of application, the right to freedom of religion or belief epitomizes the very same principles which define the human rights approach in general: respect for human dignity, normative universalism, freedom, and equality. Highlighting these principles, which freedom of religion or belief shares with other human rights, is important against the background of a growing perception (or rather: misperception) that freedom of religion or belief allegedly stands in an uneasy relationship to other human rights, in particular freedom of expression or claims of gender emancipation. This chapter presents systematic arguments which underline a holistic understanding of freedom of religion or belief as an indispensable part of human rights in general. In order for the State to fulfil its task as formal guarantor of everyone’s right to freedom of religion or belief without discrimination, an inclusive secular constitution may provide the most suitable conditions.
Freedom to Adopt, Change, or Renounce a Religion or Belief
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter focuses on everyone’s right to adopt, change, or renounce a religion or belief without restraints. That part of freedom of religion or belief has always been particularly controversial and it continues to be contested in theory and practice. In many countries, converts suffer societal harassment, open or concealed forms of discrimination and sometimes brutal acts of persecution committed by State agencies or non-State actors. While the freedom to convert to another religion or belief (including non-belief) enjoys unconditional protection in human rights law, the freedom to induce others to convert by employing non-coercive measure of persuasion can be limited, if deemed necessary and in accordance with the criteria set out for imposing limitations. Nonetheless, the two issues of conversion and missionary activities closely belong together in practice, since restrictions imposed by States on ‘proselytism’ often aim at de-legitimizing acts of ‘apostasy’ as well.
Freedom to Worship
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter addresses issues concerning the individual freedom to worship. Given the crucial significance of worship for the understanding and practice of religion, the texts of some national constitutions reduce the right to freedom of religion or belief to the element of worship by replacing it with the term ‘freedom to worship’. However, this narrow or even exclusive emphasis on worship can become an excuse for marginalizing or simply ignoring other important aspects of freedom of religion or belief, such as running charity institutions, offering education services or participating in public debate. It is therefore advisable not to isolate the element of worship, but to see it in conjunction with the other elements of the right to manifest one’s religion or belief through observance, practice, and teaching. The chapter also discusses issues of interpretation such as the ceremonial use of plants and drugs, as well as ritual slaughter and observance of dietary practices.
Conscientious Objection
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter addresses issues concerning conscientious objection, notably the refusal by individuals to perform compulsory military service based on their genuinely held religious or other beliefs that forbid the use of lethal force. Throughout the past five decades, various international and regional human rights mechanisms have significantly changed their interpretation with regard to the existence and normative basis of a right to conscientious objection to military service. This chapter also discusses the question of who can claim conscientious objection; procedural issues; the problem of repeated trials and punishment of conscientious objectors; the nature and length of alternative service; refugee status claims based on persecution arising from conscientious objection; and conscientious objection in disputed territories. In addition, there are several issues of interpretation related to ‘selective’ objection against participating in certain wars and ‘total’ objection even against alternative civilian service. In addition to conscientious objection to military service, also other issues may give rise to objections, for example against the obligation to pay taxes for military expenditures; against carrying out abortions; against a duty to join a hunting association; against singing the national anthem or saluting the flag; and conscientious objection in the employment sphere.