bluuebunny/crossref_metadata_2025 huggingface dataset:
Authors: Huber Peter
Published: June 2017

This commentary focuses on Article 3.1.1 concerning the scope of application of the rules on validity in Chapter 3 of the UNIDROIT Principles of International Commercial Contracts (PICC). The PICC do not deal with invalidity arising from lack of capacity. The Official Comment states that the reason for the exclusion of capacity matters lies in their ‘inherent complexity’ and in the fact that they are treated in an ‘extremely diverse manner’ by domestic legal systems. The provision has been changed in the 2010 edition of the PICC. Ar 3.1 of the 2004 edition had also excluded invalidity arising from immorality or illegality from the scope of the PICC. These matters are now governed in Section 3.3 of the 2010 edition.
Authors: Huber Peter
Published: June 2017

This commentary focuses on Article 3.2.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the concept of mistake. Art 3.2.1 defines mistake as an erroneous assumption relating to facts or to law existing when the contract was concluded. Based on this general definition of the concept of mistake, Art 3.2.1 does not follow those national legal systems that try to distinguish between different types of error. Instead, it takes a very broad approach to the concept of mistake. Furthermore, even errors in expression or transmission are regarded as mistakes under the PICC. This commentary discusses the purpose of Art 3.2.1, erroneous assumption relating to facts or to law, relevant time, burden of proof, and consequences of a mistake.
Authors: Huber Peter
Published: June 2017

This commentary focuses on Article 3.2.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning an error that occurs in the expression or transmission of a declaration. Art 3.2.3 serves two purposes. The first is to attribute errors in expression and transmission to the party from which the declaration emanated. This is of particular relevance for errors in transmission, as in this case a third party (the transmitter) may commit the mistake which will then, under Art 3.2.3, be attributed to the party making the declaration. The second purpose is to protect the mistaken party in those cases where, as a result of the application of the rules on contractual interpretation, the contract is concluded on terms that the mistaken party did not intend. This commentary discusses the general principles of the right to avoid the contract, specific fact patterns, and burden of proof, along with the liability of both parties for damages under Art 3.2.16.
Introduction to Chapter 4 of the PICC
Authors: Vogenauer Stefan
Published: June 2017

Chapter 4 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with the interpretation of contracts, unilateral statements, and other conduct of the parties. The concept of contractual interpretation underlying the PICC is that of ‘determining the meaning to be attached to the terms of a contract’. In the context of dispute resolution, interpretation is concerned with establishing whether a given set of facts falls within the scope of application of a contractual term and therefore triggers the legal consequences spelt out in this term. The PICC seek to distinguish the process of interpretation from that of supplying omitted contractual terms and from that of implying obligations, although there is no clear line between these three mechanisms.
Authors: Vogenauer Stefan
Published: June 2017

This commentary focuses on Article 4.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning reference to contract or statement as a whole. Art 4.4 refers to the internal context of the contract or statement. This is a factor that is relevant in contractual interpretation, and it would have been possible to include it amongst the circumstances listed in Art 4.3. The drafters chose to follow the more traditional approach of the Romanistic systems, which devote a separate provision to this factor. The holistic approach advocated for the reading of contracts and statements in Art 4.4 corresponds to the basic hermeneutic principle that words cannot be understood in isolation. Art 4.4 is concerned with the internal context that is confined to the parameters of the contract or statement itself. This commentary discusses inconsistencies in the contract or statement and the weight of arguments from the internal context.
Authors: Vogenauer Stefan
Published: June 2017

This commentary focuses on Article 4.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the interpretation of contractual terms. According to Art 4.5, contract terms shall be interpreted so as to give effect to all the terms rather than to deprive some of them of effect. The rule or maxim that, in the case of doubt, all contract terms should be given full effect is part of the modern lex mercatoria. This ‘rule of common sense’ can be traced back to Roman law. This commentary discusses the requirements for the ‘rule of common sense’, with particular emphasis on irremediable ambiguity and standard terms.
Authors: Vogenauer Stefan
Published: June 2017

Article 5.1.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with express and implied obligations. According to Art 5.1.1, the contractual obligations of the parties may be express or implied.
Authors: Vogenauer Stefan
Published: June 2017

This commentary focuses on Article 5.1.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning duty to achieve a specific result and duty of best efforts. According to Art 5.1.4, to the extent that an obligation of a party involves a duty to achieve a specific result, that party is bound to achieve that result. To the extent that an obligation of a party involves a duty of best efforts in the performance of an activity, that party is bound to make such efforts as would be made by a reasonable person of the same kind in the same circumstances. The distinction between duties to achieve a specific result and duties of best efforts helps to define the scope of the parties' contractual obligations. This commentary discusses the consequences of such a distinction as well as the content of the duty of best efforts.
Authors: Vogenauer Stefan
Published: June 2017

This commentary focuses on Article 5.1.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the determination of the quality of performance. Under Art 5.1.6, where the quality of performance is neither fixed by, nor determinable from, the contract, a party is bound to render a performance of a quality that is reasonable and not less than average in the circumstances. The provision is a specific application of one of the general underlying principles of the PICC: the idea of favor contractus. This commentary discusses the priority of the general rules of contractual interpretation, average quality as a minimum threshold, standard of reasonableness, and burden of proof of the party alleging non-performance because of insufficient quality of performance.
Authors: Vogenauer Stefan
Published: June 2017

This commentary focuses on Article 5.1.8 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning a contract for an indefinite period. Art 5.1.8 stipulates that a contract for an indefinite period maybe ended by either party by giving notice a reasonable time in advance. Art 5.1.8 deviates from the principle of pacta sunt servanda and is in contrast with the idea of favor contractus. As far as its requirements are concerned, it permits the unilateral cancellation of contracts concluded for an indefinite period without any further justification. This commentary discusses the requirements for a contract for an indefinite period, with particular emphasis on contract required by good faith and notice given a reasonable time in advance. It also considers the legal consequences of an ending contract, along with the burden of proof of the party wishing to bring the contract to an end.
Introduction to Section 5.2 of the PICC
Authors: Vogenauer Stefan
Published: June 2017

Section 5.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with contracts in favour of third parties. It covers the creation of a third party right by way of contract and includes the basic rule that provides for the validity and enforceability of contracts in favour of third parties and states the requirements for bringing a third party right into existence. It also defines the rights and duties of the parties in the triangular relationship arising from a contract in favour of a third party. These provisions provide default rules for the conflict of interests typically arising between the three parties involved. Section 5.2 also discusses the defences of the promisor, the extent of the original parties' power to modify or revoke the third party's right, and the right of the third party to renounce the benefit conferred upon it.
Authors: Vogenauer Stefan
Published: June 2017

This commentary focuses on Article 5.2.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning contracts in favour of third parties. Art 5.2.1 stipulates that the parties to a contract can validly agree to benefit a third party, and that it is possible that the third party acquires a right from such an agreement. It also introduces a particular terminology for denominating the parties in the triangular relationship. There are two original parties (‘the parties’) whose agreement contains the promise of one of them (‘the promisor’) to the other (‘the promisee’) to benefit a third person (‘a third party’). This commentary discusses the ‘relativity’ or ‘privity’ of contracts, validity of contracts in favour of third parties, power of the promisor and the promisee to create third party rights, content of the beneficiary's right, rights of the promisee, and implications of invalidity of contracts for third parties.
Introduction to Section 5.3 of the PICC
Authors: Rowan Solène
Published: June 2017

Section 5.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with conditional obligations and conditional contracts. It consists of five articles concerned with five basic issues: the types of condition covered by Section 5.3, the effects of such conditions, interference with conditions, the duty to preserve rights pending the fulfilment of conditions, and restitution for the fulfilment of ‘resolutive conditions’. The introduction of a Section on conditions is in line with the approach taken by a number of legal systems that have well-settled and codified rules on the topic. Such rules have a long lineage in the European legal tradition that can be traced back to Roman law.
Authors: Rowan Solène
Published: June 2017

This commentary focuses on Article 5.3.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning restitution in case of fulfilment of a resolutive condition. A contract or obligation that is subject to a resolutive condition comes into existence and effect from the moment the contract is formed. It operates largely in the same way as a contract or obligation that is not conditional, except that it is susceptible to being discharged upon the fulfilment of the condition. If the condition is fulfilled, the suspension comes to an end. The contractor obligation that had hitherto been in force ceases to have effect. Art 5.3.5 deals with the restitutionary consequences of a contract or obligation being discharged in such circumstances. This commentary discusses the scope of Art 5.3.5, restitution where the resolutive condition operates prospectively or retroactively, and the meaning of the phrase ‘with appropriate adaptations’.
Authors: Atamer Yesim
Published: June 2017

This commentary analyses Article 6.1.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the place of performance of a contractual obligation. The place of performance is the place at which the obligor has to perform the acts necessary to honour its obligation. According to Art 6.1.6, monetary obligations must be discharged at the place of business of the obligee and non-monetary obligations at the place of business of the obligor. This commentary discusses the relevance of place of performance, problems related to interpretation of stipulations regarding place of performance, default rule for determining place of performance, place of performance for non-performance and restitution claims, the notion of place of business and consequences of a change in place of business or a change of parties, legal consequences related to performance at a wrong place, and burden of proof relating to place of performance.
Authors: Atamer Yesim
Published: June 2017

This commentary analyses Article 6.1.9 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning currency of payment. Art 6.1.9 addresses the problems that can arise if the required currency for payment (‘currency of account’) and the legal currency at the place of payment differ; that is, if a foreign money obligation features in the contract. The main questions that arise from such a scenario are whether there is a right of conversion — the right to effect or ask for payment in the legal currency of the place of payment — and, if so, which party is entitled to exercise that right and which is the applicable rate of conversion. This commentary discusses the obligor's right to pay in either contractual or legal currency, the obligee's right to request payment in either contractual or legal currency, application of exchange rate when payment is on time and when the obligor is in default, problems related to devaluation or revaluation, and burden of proof with respect to currency of payment.
Authors: Atamer Yesim
Published: June 2017

This commentary analyses Article 6.1.12 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning imputation of payments. Art 6.1.12 addresses the problems that arise when the obligor has more than one debt with the same obligee but the sum paid is not sufficient to cover all debts. In that case, the obligee must know which of the several obligations are to be discharged. This commentary discusses the scope of application and taxonomy of Art 6.1.12 with regard to imputation of payments, the obligor's right to impute, the obligee's subsidiary right to impute, imputation by law, applicability of Art 6.1.12 in the case of partial payment, and burden of proof relating to imputation of payments.
Authors: Atamer Yesim
Published: June 2017

This commentary analyses Article 6.1.16 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning cases where the application for public permission is neither granted nor refused. Once the party in charge has taken all necessary measures without undue delay and with reasonable care and diligence, both parties can do nothing other than await the decision of the relevant authority. But the situation may arise where the authorities remain inactive and neither grant nor refuse the application. Art 6.1.16 offers a solution to this ‘nothing happens’ situation and gives the parties a chance to resolve it. This commentary considers cases where the application for permission was filed but no decision was taken, as well as the consequences if missing permission affects the contract in general or if missing permission affects only certain terms of the contract.
Authors: Schelhaas Harriet
Published: June 2017

This commentary analyses Article 7.1.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the additional period for performance allowed by the aggrieved party in a case of non-performance. Art 7.1.4 stipulates that the aggrieved party can only react to the other's party proposal to cure its non-performance by accepting appropriate and prompt cure. Under Art 7.1.5, the aggrieved obligee may adopt a proactive approach to non-performance. The obligee can set the obligor an additional period of time for finally performing its obligations. Art 7.1.5 also allows the obligee to resort to the full panoply of remedies after the period has lapsed, particularly to termination, even if the delay in performance is not fundamental. This commentary discusses the requirements for fixing an additional period of time, as well as the legal consequences of allowing an additional time limit for performance.
Authors: Schelhaas Harriet
Published: June 2017

This commentary analyses Article 7.1.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning exemption clauses. According to Art 7.1.6, a clause which limits or excludes one party's liability for non-performance, or which permits one party to render performance substantially different from what the other party reasonably expected, may not be invoked if it would be grossly unfair to do so. The possibility of striking down exemption clauses by virtue of Art 7.1.6 is an exceptional control mechanism. Art 7.1.6 acts as a specific safeguard against unfair exemption clauses. The scope of this provision applies not only to exemption clauses in standard terms, but also to individually negotiated exemption clauses. An exemption clause may not be invoked if it would be grossly unfair to do so. This commentary also discusses the legal consequences of an exemption clause being ‘grossly unfair’.
Authors: Schelhaas Harriet
Published: June 2017

This commentary analyses Article 7.2.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the right of an aggrieved party to require performance of non-monetary obligations. According to Article 7.2.2, a party may require performance from the other party who does not perform unless: performance is impossible in law or in fact; performance or, where relevant, enforcement is unreasonably burdensome or expensive; the party entitled to performance may reasonably obtain performance from another source; performance is of an exclusively personal character; or the party entitled to performance does not require performance within a reasonable time after it has — or ought to have — become aware of the non-performance. This commentary discusses the conditions and exceptions with respect to the right to require performance of a non-monetary obligation.
Authors: Huber Peter
Published: June 2017

This commentary analyses Article 7.3.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the aggrieved party's right to terminate the contract if the other party fails to perform an obligation under the contract. Art 7.3.1 sets out the requirements which must be met if one party wishes to terminate the contract in response to the other party's non-performance. The basic rule is that termination will be available as a remedy if the other party's non-performance amounts to a fundamental non-performance. This commentary discusses the policy considerations underlying Art 7.3.1, freedom of contract, termination for fundamental non-performance, termination after expiry of an additional period of time for performance, use of the Nachfrist mechanism within the doctrine of fundamental non-performance, termination for partial non-performance, burden of proof relating to termination, and effects of termination.
Authors: Huber Peter
Published: June 2017

This commentary analyses Article 7.3.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning anticipatory non-performance. Both Arts 7.3.3 and 7.3.4 govern the so-called ‘anticipatory breach’; that is, cases where there are reasons to believe, before the date for performance, that there will be a non-performance by the other party. The purpose of Art 7.3.3 is to equate a fundamental non-performance which is (only) to be expected with a fundamental non-performance which actually occurs at the date of performance. This commentary discusses the requirements for the right to terminate, including a notice of termination, as well as the effects of termination.
Introduction to Section 7.4 of the PICC
Authors: McKendrick Ewan
Published: June 2017

Section 7.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) is concerned with remedy of damages. It covers the right to recover damages in the event of non-performance as well as the measure of damages, particularly the use of foreseeability as a limiting factor on the recoverability of damages. A notable feature of Section 7.4 is that the entitlement to recover damages is not linked to any notion of fault, nor to any system of notification of the defaulting party. Instead, the right arises on non-performance by the other party to the contract unless the non-performance is excused. The articles in Section 7.4 build upon, and in places develop, the rules to be found in the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Authors: McKendrick Ewan
Published: June 2017

This commentary analyses Article 7.4.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the certainty of harm. Under Art 7.4.3, compensation is due only for harm, including future harm, that is established with a reasonable degree of certainty. Compensation may be due for the loss of a chance in proportion to the probability of its occurrence. If the amount of damages cannot be established with a sufficient degree of certainty, the assessment is at the discretion of the court. There is a link between the requirement that the harm must be proved with sufficient certainty and the requirement that there be a causal link between the harm and the non-performance. The burden of proof is upon the aggrieved party to establish both the existence and the extent of the harm with a reasonable degree of certainty.
Authors: Pichonnaz Pascal
Published: June 2017

This commentary analyses Article 8.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning foreign currency set-off. Art 8.2 deals with set-off in the case of freely convertible currencies and restrictions to set-off between foreign currencies. Where the obligations are to pay money in different currencies, the right of set-off may be exercised, provided that both currencies are freely convertible and the parties have not agreed that the first party shall pay only in a specified currency. This commentary discusses the principle of set-off for freely convertible currencies, conversion and the exchange rate for freely convertible currencies, set-off in currencies that are not freely convertible, and burden of proof relating to foreign currency set-off.
Authors: Pichonnaz Pascal
Published: June 2017

This commentary analyses Article 8.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning set-off by notice. Under Art 8.3, the right of set-off is exercised by notice to the other party. This means that set-off can operate outside a courtroom and has a discharging effect on the obligation of the first party without the intervention of a judge or arbitrator. This commentary discusses the principle of set-off by notice, the form of notice of set-off, and time to give notice (‘anticipatory notice’). It also considers two other modes of set-off, set-off within insolvency proceedings and set-off by agreement, and concludes by explaining the burden of proof relating to set-off by notice.
Introduction to Chapter 9 of the PICC
Authors: Mazza Francesca
Published: June 2017

Chapter 9 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with assignment of rights, transfer of obligations, and assignment of contracts. In essence, the assignment of a right under Section 9.1 of the PICC is effective without the participation of the obligor. The effect of notice of the assignment to the obligor is that the obligation is no longer discharged in favour of the assignor. The PICC offer efficient and practical solutions to issues concerning the assignment of monetary rights and thereby may contribute to facilitating the transfer of such rights. With respect to the assignment of non-monetary rights, the PICC are the only international instrument that attempts to provide a comprehensive solution. However, the PICC do not address issues of third party rights, with the exception of Art 9.1.11.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.1.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the definition of the notion of ‘assignment’. Art 9.1.1 defines the assignment of a right as the transfer by agreement. Regarding the terminology, the UNIDROIT Working Group preferred the term ‘assignment of a right’ over ‘transfer of a right’ in the light of the fact that, in some legal systems, transfer is a broader term which includes a transfer by operation of law. In principle, the assignment becomes effective and the transfer occurs at the time of the agreement. However, this is only correct with regard to the assignor and a single assignee. This commentary discusses the notion of transfer, transfer by agreement between assignor and assignee, object of the transfer, and the time aspect of transfer.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.1.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning assignment of a right without individual specification. According to Art 9.1.6, a number of rights may be assigned without individual specification, provided such rights can be identified as rights to which the assignment relates at the time of the assignment or when they come into existence. The provision clarifies that the assignment of a bundle of rights is effective. It does not matter whether the bundle of rights consists of existing or future rights, or both. The PICC do not offer an explicit answer for what happens if the bundle of rights includes some rights which cannot be identified as rights to which the assignment relates (whereas the remaining rights can). This commentary discusses the principle of partial validity as it applies with respect to the assignment of a bundle of rights (as opposed to the complete invalidity of the assignment).
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.1.12 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning adequate proof of assignment. Under Art 9.1.12, if the notice of assignment of a right is given by the assignee, the obligor may request the assignee to provide within a reasonable time adequate proof that the assignment has been made. Until adequate proof is provided, the obligor may withhold payment. Unless adequate proof is provided, notice is not effective. Art 9.1.12 essentially protects the obligor against the risk of receiving fraudulent notice from a person who purports to be the assignee. This commentary discusses the rationale and scope of Art 9.1.12, the obligor's right to request adequate proof of the assignment, and the timing and effects of adequate proof that is given by the assignee.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.1.13 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning defences and rights of set-off. According to Art 9.1.13, the obligor may assert against the assignee all defences that the obligor could assert against the assignor. The obligor may exercise against the assignee any right of set-off available to the obligor against the assignor up to the time notice of assignment of a right was received. The purpose of this provision is to protect the obligor's interests. This commentary discusses the notion of defences with respect to set-off, the time at which the defences come into existence, procedural defences, waiver of defences, remedy available to the assignee. It also considers the scope of application and rationale of Art 9.1.13 regarding rights of set-off, including the requirements, burden of proof, and consequences in the case of notice of set-off.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.1.15 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the undertakings of the assignor with respect to the assignee. According to Art 9.1.15, the assignor undertakes that the assigned right exists at the time of the assignment. This is not the case if, for instance, the contract from which the purported right arises had never been concluded or was void, or had previously been avoided. Similarly, if the obligor had already performed its obligation, the right would no longer exist. If a future right is assigned, no such undertaking exists. Rather, the assignee takes the risk that the future right never comes into existence. This commentary discusses the rule which entitles the assignor to assign the right, assert against the assignee all the defences that the obligor would have been able to assert against the assignor, the right of set-off against the assignee if it was available to the obligor before the notice of assignment of a right was received, and reimbursement of payment by the obligor.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.2.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the modes of transfer of an obligation. Under Art 9.2.1, an obligation to pay money or render other performance may be transferred from one person (the ‘original obligor’) to another person (the ‘new obligor’) in two ways: by an agreement between the original obligor and the new obligor subject to Article 9.2.3, or by an agreement between the obligee and the new obligor, with the new obligor assuming the obligation. This commentary discusses the notion of transfer of an obligation, transfer by agreement, participation of the obligee in the transfer, object of the transfer, and the issue of time in transfer.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.2.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the obligee's consent as a requirement for the transfer of an obligation. According to Art 9.2.3, the transfer of an obligation by an agreement between the original obligor and the new obligor requires the consent of the obligee. The reason for this rule is that the change of obligor may considerably affect the obligee's position. Therefore, the change may not be imposed on the obligee. Lack of consent of the obligee, whether it has been refused or not solicited, makes the transfer ineffective. Until the obligee has given its consent or refused it, as the case may be, the agreement between the original obligor and the new obligor is not fully effective and can be said to be ‘in suspense’ or ‘in abeyance’.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.2.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the circumstances under which the original obligor is discharged. According to Art 9.2.5, the obligee may discharge the original obligor or retain the original obligor as an obligor in case the new obligor does not perform properly. Otherwise the original obligor and the new obligor are jointly and severally liable. As a default rule, Art 9.2.5(3), which provides for the joint and several liability of the original and new obligor, applies unless the obligee has agreed to discharge the original obligor by virtue of Art 9.2.5(1) or (2). Art 9.2.5(3) stipulates that the obligee is not required to express a choice. If it remains silent, the default rule of joint and several liability applies. The burden of proof lies with the original obligor to provide persuasive evidence that it has been fully or partially discharged.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.3.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the assignment of contracts and its definition. Under Art 9.3.1, ‘assignment of a contract’ means the transfer by agreement from one person (the ‘assignor’) to another person (the ‘assignee’) of the assignor's rights and obligations arising out of a contract with another person (the ‘other party’). This commentary discusses legal transfers and the ‘no form required’ rule with respect to transfer by agreement between assignor and assignee, as well as the obligee's consent as a requirement for the transferred obligations. It also considers the notion of transfer, object of the transfer, and the issue of time in the transfer.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.3.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning exclusion in the assignment of contracts. Art 9.3.2 clarifies that Section 9.3 of the PICC does not apply to transfers made under special (domestic) rules governing the transfer of contracts in the course of transfer of business. These types of assignment are generally subject to specific and distinct rules under the applicable domestic law, under which all contracts are transferred under certain conditions in their entirety by operation of law. However, the PICC apply to the transfer of any individual or specific contracts pertaining to the transferred business.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.3.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the obligee's advance consent with respect to the assignment of contracts. Article 9.3.3 states that the obligee may give its consent in advance, in which case the assignment of contract becomes effective when a notice of assignment is given to the other party or when the other party acknowledges it. ‘In advance’ means that it can be given before the assignor and the assignee agree on the transfer of contract. The consent can be given before an obligation contained in the contract is due or comes into existence (provided that the contract exists). Notification can be made by either the assignor or the assignee.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.3.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the circumstances under which the assignor (that is, the original obligor with respect to the transferred obligations) is discharged. As a default rule, Art 9.3.5(3) applies, unless the other party has agreed to discharge the assignor under Art 9.3.5(1) or (2). Under Art 9.3.5(3), the assignor and the assignee are jointly and severally liable. Transfer of contracts may involve the transfer of a number of obligations. In this event, the other party may choose to exercise different options in respect of the different obligations. Art 9.3.5(3) does not require the other party to express a choice. If it remains silent, the default rule of joint and several liability applies.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.3.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning defences and rights of set-off with respect to assignment of contracts. Transfer of contracts typically involve the transfer of both rights and obligations. With regard to defences and set-off, Art 9.3.6 makes reference to the respective provisions in Sections 9.1 and 9.2 of the PICC. Accordingly, Arts 9.1.13 and 9.2.7 apply when a contract is transferred. With regard to the terminology when applying Art 9.2.7 to the transfer of a contract, the assignor of the contract is referred to as the ‘original obligor’, the assignee as the ‘new obligor’, and the other party as the ‘obligee’.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.3.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the assignment of contracts that involves an assignment of rights. Transfer of contracts typically involve the transfer of both rights and obligations. With regard to rights transferred with the contract, Art 9.3.7 makes reference to the respective provisions in Sections 9.1 and 9.2 of the PICC. Arts 9.1.14 and 9.2.8 apply accordingly when a contract is transferred. As to the terminology when applying Art 9.2.8 to the transfer of a contract, the assignor of the contract is referred to as the ‘original obligor’, the assignee as the ‘new obligor’, and the other party as the ‘obligee’.
Authors: Wintgen Robert
Published: June 2017

This commentary analyses Article 10.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the suspension of the running of the limitation period by judicial proceedings. Under Art 10.5, the running of the limitation period is suspended when the obligee performs any act, by commencing judicial proceedings or in judicial proceedings already instituted, that is recognised by the law of the court as asserting the obligee's right against the obligor; in the case of the obligor's insolvency when the obligee has asserted its rights in the insolvency proceedings; or in the case of proceedings for dissolution of the entity which is the obligor when the obligee has asserted its rights in the dissolution proceedings. This commentary explains how the commencement of judicial proceedings can affect the running of limitation periods.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.1.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the effects of defences on the relationship between the obligee and the obligors. Under Art 11.1.4, a joint and several obligor against whom a claim is made by the obligee may assert all the defences and rights of set-off that are personal to it or that are common to all the co-obligors. However, the obligor may not assert defences or rights of set-off that are personal to one or several of the other co-obligors. This commentary discusses the common defences that the obligor can assert against the obligee, along with personal defences which involve the right to avoid the contract for mistake, fraud, threat, or gross disparity.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.1.8 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the effects of the court's decision as to the liability to the obligee of one joint and several obligor. The obligee can commence judicial or arbitral proceedings against all the obligors together. In that case, the court decision will bind the obligee and all the obligors because they are all parties to the legal proceedings. Under Art 11.1.8(1), a decision by a tribunal (state court or arbitral tribunal) has no effect on the other obligors, neither on their obligations towards the obligee nor on the rights of recourse. This commentary explains the effects of a decision in favour of the obligee and in favour of the obligor.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.1.10 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the extent of contributory claim of the performing obligor against its co-obligors. In a contractual setting, joint and several obligations arise because the obligors obliged themselves by a common commitment towards the obligee or by separate commitments in the knowledge of the commitments of the other obligors. Contribution between joint and several obligors is a generally accepted principle. Art 11.1.10 provides for a personal claim of the performing obligor against its co-obligors. According to this provision, a joint and several obligor who has performed more than its share may claim the excess from any of the other obligors to the extent of each obligor's unperformed share. This commentary considers the obligor's contractual claim to contribution, performance of more than its share, and contribution in money. It also addresses the amount of the contributory claim, costs and interest, duties before performance, and burden of proof relating to contributory claim.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.1.11 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the right of a performing obligor to benefit from the obligee's rights. If a joint and several obligor, having performed more than its share, can claim contribution under Art 11.1.10, it may additionally exercise the rights of the obligee against the co-obligors. The right of a performing obligor to benefit from the obligee's rights is often called subrogation. The rationale of subrogation is to strengthen the right to contribution: the subrogated obligor can take advantage of all the privileges and securities that the obligee's claim entails and may thus enforce its contributory claim even where the co-obligor has become insolvent. This commentary considers the requirements and extent of subrogation, subrogation into the obligee's claim, subrogation into rights securing performance, the mechanism of subrogation and enforcement, and precedence of obligee's rights in the case of part payment under paragraph 2 of Art 11.1.11.
Introduction to Section 11.2 of the PICC
Authors: Meier Sonja
Published: June 2017

Section 11.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with the plurality of obligees in a contractual setting. Where an obligor is bound towards a plurality of obligees, various issues arise. The main questions concern the relationship between the obligees and the obligor, and the relationship between the obligees. Section 11.2 provides for three types of plurality of obligees: separate claims, joint and several claims, and joint claims. This Section appears to be only of limited assistance. Substantial rules are provided only for one type of plurality which is, arguably, rare in practice, namely joint and several claims.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.2.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the allocation of shares between obligees with joint and several claims. Joint and several obligees usually provide for an apportionment so that each obligee has the right to receive its internal share of the obligation. Under Art 11.2.4, joint and several obligees are entitled to equal shares, unless the circumstances indicate otherwise. An obligee who has received more than its share must transfer the excess to the other obligees to the extent of their respective shares. The size of each obligee's share is determined by the contract between the obligees. This commentary considers the measure of apportionment, the obligee's obligation to transfer excess share to the other obligees, and apportionment in other cases.
Introduction to Arts 2.1.1–2.1.14
Authors: Anderson Ross G
Published: June 2017

Chapter 2 of the UNIDROIT Principles of International Commercial Contracts (PICC) contains the core provisions on contract formation. It has two sections: the first deals with offers, acceptances, negotiations, standard terms, and standard firms; the second deals with agency. The fundamental rules on formation of contract which focus on the law of offer and acceptance are provided in Arts 2.1.1–2.1.14. The ‘classical’ model of contract law centres on the parties' agreement to assume obligations with private law consequences, whereas the ‘neoclassical’ model adopts a less strict approach but with a similar focus. This chapter covers contract formation in modern commercial practice, along with provisions relating to electronic signatures, letters of intent, and notices.
Diplomatic Law
Authors: Denza Eileen
Published: June 2017

Diplomatic Law was first published in 1976. The book places each provision of the Convention in its historical context; provides commentary on the application of the Convention by the UK, the US, and other States; and thoroughly examines topical problems in the field including the abuse of diplomatic immunity and terrorist violence. This updated edition also highlights important new trends in the application of the Convention regime. It explores the interaction between State and diplomatic immunity (as shown in the Pinochet case), examines methods of establishing and conducting diplomatic relations under conditions of physical danger, and looks at increased evidence of disregard for the rules of secrecy in diplomatic communications. The book also explores the greater latitude for diplomats to ‘interfere’ in the internal affairs of the receiving State in the interest of protecting human rights and evaluates the impact of adoption of the UN Convention on Jurisdictional Immunities of States and their Property.
Preamble
Authors: Denza Eileen
Published: June 2017

This chapter describes the Preamble of the Vienna Convention on Diplomatic Relations set forth by the International Law Commission, the main legal body which promotes the progressive development of international law and oversees its codification. It briefly describes three theories that form as the basis of the statements written at the Preamble —the ‘exterritoriality’ theory, the ‘representative character’ theory, and the ‘functional necessity’ theory. All of these theories heavily influence matters regarding diplomatic privileges and immunities. Ultimately, the Preamble to the Convention has two important legal functions—to state the view of the participating States on the theoretical basis of diplomatic privileges and immunities, and to make explicit the relationship between the Convention and customary international law.
Definitions
Authors: Denza Eileen
Published: June 2017

This chapter examines Article 1 of the Vienna Convention on Diplomatic Relations which defines some of the key terms used in the Convention. The article specifically defines nine terms—(a) head of the mission; (b) members of the mission; (c) members of the staff; (d) members of the diplomatic staff; (e) diplomatic agent; (f) members of the administrative and technical staff; (g) members of the service staff; (h) private servant; and (i) premises of the mission. Definitions (a) to (h) of the Article that concern the various categories of persons whose appointment, privileges, and immunities are prescribed by the Convention are almost entirely formal in character. The last definition, definition (i) premises of the mission, is objective. According to the International Law Commission on their 1958 draft, premises include the buildings or parts of buildings used for the purposes of the mission.
Establishment of Diplomatic Relations
Authors: Denza Eileen
Published: June 2017

This chapter analyses the Article 2 of the Vienna Convention on Diplomatic Relations which states that diplomatic relations, and of permanent diplomatic missions, takes place by mutual consent. It outlines the changes and development that led to the formation of the article. The International Law Commission traces the roots of the second article from a state’s right to legation, the right of sending a diplomatic mission to a foreign state. However, in order to determine whether an entity has the ‘right of legation’, it is necessary to determine whether or not it is a State. For most of the Parties of the Convention, the right to conduct diplomatic relations is generally regarded as flowing from recognition as a sovereign State. The chapter describes some instances where recognition plays an important factor in diplomacy, such as the status of Palestine and the Holy See.
Functions of a Diplomatic Mission
Authors: Denza Eileen
Published: June 2017

This chapter examines the development of Article 3 of the Vienna Convention on Diplomatic Relations which provides an overview of the functions of a diplomatic mission. The International Law Commission cites the notions of the diplomat Ernest Mason Satow who states that the functions of a diplomatic mission are to represent the sending State, to protect its interest and those of its nationals, to negotiate with the government of the receiving State, to report the sending government on all matters of importance to it, and to promote friendly relations in general between the States. The chapter looks into the two main points of discussion within the Commission that emerged throughout the Article’s formation: the function of ‘protecting in the receiving State the interests of the sending State and of its nationals’, and the entitlement of diplomatic missions to perform consular functions.