13th Biennial Meeting - Penn State Law

TEXAS INTERNATIONAL LAW JOURNAL
VOL. 42:625
E. Voluntary Contractual Applicability Texts: Incoterms, Uniform Customs and
Practices, Arbitration Rules
The UNIDROIT project on Principles of International Contracts involved
preparation of a Restatement of international contract law. 22 This project fulfilled
several practical needs. Professor Joachim Bonell has noted that the Principles can
elaborate general principles and rules relating to the law of contract in order to
provide the necessary legal environment for the interpretation of uniform laws
governing special types of transactions. 23 He noted that harmonization of specific
areas of law such as sale of goods, negotiable instruments, modes of transport,
intellectual property, and so on had been effective on a sectoral basis. 24 However, as
discussed by Ren6 David, the limited nature of unification poses the problem of how
to use national rules and techniques which have escaped unification to supplement
uniform law. 25 The Principles supplement areas of law, which have been harmonized
on sectoral basis.
The Principles also serve as a guideline for national legislative bodies
(particularly in developing countries) in enacting a basic code of contract law. In
addition, having been prepared by a prestigious independent international
organization in co-operation with a broad base of other academic, governmental,
and private groups, parties to international contacts may see fit to incorporate the
Principles into their contracts as applicable law even though they might not be
enacted as legislation.
Widespread recognition and use of rules drafted by respected and prestigious
international organizations on a voluntary basis by contracting parties is an
important source of harmonized international rules. This procedure is further
exemplified by the International Chamber of Commerce through its Incoterms 26 and
Letter of Credit Uniform Customs and Practices. 2 Similarly, the much used 1976
UNCITRAL 'Arbitration Rules' offer parties the option of making applicable a
carefully prepared set of arbitration rules to initiate a private arbitration process, in
lieu of utilizing institutional arbitration offered by organizations such as the
International Chamber of Commerce, American Arbitration Association, and other
institutionalized arbitration centers in major cities of the world. 8
This voluntary application technique is an alternative procedure by which
parties have achieved order and predictability in their international contracting. The
22. UNIDROIT Principles: A New Edition of the UNIDROIT Principles for International
Commercial Contracts (2004), available at http://www.unidroit.org/english/principles/contracts/main.htm.
23. Michael Joachim Bonell, UNIDROIT Principles 2004 - The New Edition of the Principles of
International Commercial Contracts adopted by the International Institute for the Unification of Private
Law, 9 UNIF. L. REV. 5 (2004).
24. See Michael Joachim Bonell, A "Restatement" of Principles for International Commercial
Contracts: An Academic Exercise or A Practical Need?, 7 INT'L Bus. L. J. 873 (1988).
25. Ren6 David, The International Unification of Private Law, in 2 INTERNATIONAL ENCYCLOPEDIA
OF COMPARATIVE LAW ch. 5 at 123-24 (Ren6 David et al. eds., 1971).
26. International Chamber of Commerce (ICC) INCOTERMS, 22 Y.B. INT'L L. COMM'N 399, U.N.
Doc. A/CN.9/348.
27. See ICC Banking Commission, UCP 1974/1983 REVISIONS COMPARED AND EXPLAINED:
DOCUMENTARY CREDITS (1984).
28. Report of United Nations Commission on International Trade Law on the Work of Its Ninth
Session, 31 U.N. GAOR Supp. (No. 17) para. 57, U.N. Doc A/31/17 (1976).
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