International Commercial Contracts Applicable Sources and Enforceability 1st Edition by Giuditta Cordero Moss ISBN 9781139949187 1139949187

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ISBN 10: 1139949187

ISBN 13: 9781139949187

Author: Giuditta Cordero-Moss

Any practising lawyer and student working with international commercial contracts faces standardised contracts and international arbitration as mechanisms for dispute settlement. Transnational rules may be applicable, but national law is still important. Based on extensive practical experience, this book analyses international contract practice and its interaction with the various applicable sources: which role is played by the contractual regulation, which by national law, which by transnational sources, what is the interaction among these factors, and how does this all apply to contracts that refer disputes to international arbitration?

 

International Commercial Contracts Applicable Sources and Enforceability 1st Edition Table of contents: 

1 Explanation of the term ‘commercial’

2 Explanation of the term ‘international’

3 The public international law dimension

1 Contract practice and its expectations in terms of the governing law

1 The rationale of contract drafting

2 The models for international contract drafting

3 The dynamics of contract drafting

4 Examples of self-sufficient contract drafting

4.1 Boilerplate clauses

4.1.1 Entire agreement clause

4.1.2 No waiver clause

4.1.3 No oral amendments clause

4.2 Subject to contract clause

4.3 Early termination clause

4.4 Arbitration clauses

4.5 Other clauses

5 Conclusion

2 The role of transnational law

1 Introduction

2 Sources of transnational law

2.1 The CISG

2.2 The Principles of International Commercial Contracts (UPICC) and the Principles of European Contract Law (PECL)

3 Sources harmonising specific sectors

3.1 INCOTERMS

3.2 UCP 600

3.3 Summing up

4 The difficult task of harmonising legal traditions

4.1 General principles

4.2 Restatements of principles: the UPICC and the PECL

4.2.1 Entire agreement

4.2.2 No waiver

4.2.3 Subject to contract

4.2.4 Early termination

4.3 Digests of principles: Trans-Lex

4.4 Trade usages

4.5 Summing up

5 The difficult task of harmonising legal areas

5.1 Unilateral declarations in public international law

6 The difficult task of replacing the governing law

6.1 Private international law

6.2 Sources conflicting with the governing law

6.2.1 The UCP 600

6.2.1.1 Case 1

6.2.1.2 Case 2

6.2.1.3 Case 3

6.2.2 The UPICC: irrevocable offer

6.3 Gaps in transnational sources

6.3.1 Choice between contracts

6.3.2 The CISG as an expression of transnational law

6.4 Summing up

7 The autonomous contract

7.1 Standard contracts

7.2 ‘Good commercial practice’

8 Conclusion

3 The impact of the governing law

1 English law privileges predictability

2 Civil law systems privilege justice, but to different extents

3 Convergence between civil law and common law?

4 The effects of the governing law on the interpretation of contractual terms

4.1 Boilerplate clauses

4.1.1 Entire agreement

4.1.2 No waiver

4.1.3 No oral amendments

4.2 Subject to contract

4.2.1 Negotiations in good faith

4.2.2 Exclusion of liability

4.2.3 Conclusion

4.3 Early termination clauses

5 Contractual terms contradicting, supplementing or being supplemented by non-mandatory rules of the governing law

5.1 Representations and warranties clauses

5.2 Liquidated damages

5.3 Force majeure

5.3.1 Supplier’s failure

5.3.2 Choice between contracts

5.4 Hardship clause

6 Contractual terms contradicting mandatory rules of the governing law

6.1 Firm offer

6.1.1 Revocation

6.1.2 Revocation and reliance

6.2 Amendments to a contract

6.2.1 Unilateral obligation

6.2.2 Factual benefit

7 Does arbitration ensure a uniform approach to contractual terms?

7.1 Arbitration as a unitary system?

7.2 Various approaches

7.3 The importance of the selection of arbitrators

7.4 Conclusion

8 The drafting style does not achieve self-sufficiency, but has a certain merit

4 Which state law governs an international contract?

1 Introduction

2 The most important conflict rule for contracts: party autonomy

2.1 Which law to choose

2.1.1 Choice of one of the parties’ law

2.1.2 Criteria for choosing the governing law

2.1.2.1 Literal interpretation: English law

2.1.2.2 Purposive interpretation: Germanic law

2.1.3 Accurate application assumes a thorough understanding of the law

2.2 Tacit choice of English law for international contracts?

2.2.1 The use of common law contract models

2.2.2 The governing law

2.2.3 Drafting style as a partial choice of law?

2.2.4 Drafting style as a tacit choice of law?

2.2.5 Drafting style as the closest connection?

2.2.6 Conclusion

2.3 Choosing transnational law?

3 What if the parties have not chosen the governing law?

3.1 First step: determination of the forum

3.1.1 Exorbitant jurisdiction

3.1.1.1 The legal question of exorbitant jurisdiction

3.1.1.2 The regulation of international jurisdiction in civil cases

3.1.1.3 Restrictions under private international law

3.1.1.4 Restrictions under public international law

3.1.1.5 The public international law dimension of the Yukos case

3.1.1.6 The decision

3.1.1.7 Consequences of the violation of public international law restrictions on exorbitant jurisdiction

3.2 Second step: application of the choice-of-law rules of the lex fori

3.2.1 The Rome Convention provided for presumptions

3.2.1.1 Loose interpretation: Article 4.2 as a weak presumption

3.2.1.2 Strict interpretation: Article 4.2 as a strong presumption

3.2.1.3 Conclusion

3.2.2 The Rome I Regulation

4 Are all rules of any other connected laws excluded, once the governing law is chosen?

4.1 The scope of party autonomy: classification and exclusive conflict rules

4.2 Classification in arbitration

4.2.1 Company law

4.2.2 Legal capacity

4.2.3 Winding up and insolvency

4.2.4 Property

4.2.5 Assignment, security interests and collateral

4.3 Overriding mandatory rules

4.3.1 Competition law

4.3.2 Labour law

4.3.3 Agency contracts

4.3.4 Insurance

4.3.5 Good faith and fair dealing

4.4 Overriding mandatory rules of third states

4.5 Impossibility of the performance due to a foreign law

4.6 Illegality of the performance under a foreign law

4.7 Violation of the ordre public of the lex fori

5 Private international law and arbitration

5.1 The relevance of private international law in arbitration

5.2 Which private international law is applicable?

5 Does arbitration ensure a self-sufficient contract?

1 Briefly on commercial arbitration

1.1 Different forms of arbitration

1.1.1 International Chamber of Commerce www.iccwbo.org/court/arbitration/

1.1.2 London Court of International Arbitration www.lcia.org

1.1.3 Arbitration in Switzerland www.swissarbitration.ch/index.php

1.1.4 International Arbitral Centre in Vienna wko.at/arbitration/

1.1.5 Stockholm Chamber of Commerce www.sccinstitute.se/

1.2 The relevance of national law to international arbitration

1.3 Is there a difference between international arbitration and domestic arbitration?

1.4 When does state law become relevant to international arbitration?

1.4.1 International arbitration and the state law of the place of arbitration

1.4.1.1 The relevance of the lex arbitri to the procedure of the arbitral proceeding

1.4.1.2 The relevance of the lex arbitri to the challenge of an arbitral award

1.4.1.3 The relevance of the lex arbitri to the enforcement of an arbitral award

1.4.2 International arbitration and the state law of the place(s) of enforcement

1.5 Specific criteria for invalidity or unenforceability of arbitral awards: is an international award really detached from state law?

1.5.1 Challenge to the validity

1.5.2 Enforcement

2 Grounds for refusing enforcement or for invalidity of the award

2.1 Invalidity of the arbitration agreement

2.1.1 National arbitration laws on the validity of arbitration agreements

2.1.2 UNCITRAL Model Law on the validity of arbitration agreements

2.1.3 Article II of the New York Convention on the validity of arbitration agreements

2.1.4 Competition between state law and Article II of the New York Convention

2.1.5 May the more-favourable-law provision of Article VII assist?

2.1.6 Is the procedural requirement of Article IV an obstacle?

2.1.7 Conclusion

2.2 Legal capacity

2.3 Constitution of the arbitral tribunal

2.4 Excess of power

2.5 Irregularity of procedure

2.6 Ordre public conflict

2.6.1 International ordre public as a corrective to positive ordre public

2.6.2 Truly international ordre public as a transnational phenomenon

2.6.3 Conflict with principles, not with rules

2.6.4 Fundamental principles

2.6.4.1 Company law

2.6.4.2 Insolvency

2.6.4.3 Property and encumbrances

2.6.4.4 Competition law

2.6.4.5 Agency

2.6.4.6 Labour law; insurance

2.6.4.7 Good faith and fair dealing

2.6.4.8 Embargo

2.6.5 Conclusion

2.7 Conflict with the arbitrability rule

2.7.1 The law governing arbitrability in the phase of the challenge to an award

2.7.2 The law governing arbitrability in the phase of enforcement of an award

2.7.3 The law governing the dispute is irrelevant

2.7.4 Arbitrability is equal to the ordre public in international disputes without a connection to the lex fori

2.7.5 Conclusion

3 The power of the arbitral tribunal in respect of the parties’ pleadings

3.1 The procedural rules

3.1.1 Arbitration agreements

3.1.2 Arbitration rules

3.1.2.1 Party’s default

3.1.2.2 Adverse inferences

3.1.2.3 Additional information

3.1.2.4 Burden of proof

3.1.2.5 Impartiality

3.1.2.6 Fair hearing

3.1.3 Arbitration law

3.1.4 Particularly on investment arbitration

3.2 The ultimate borders: excess of power, the adversarial principle, procedural irregularity

3.2.1 Excess of power

3.2.2 Fair hearing

3.2.3 Procedural irregularity

3.3 The tribunal: an umpire or an inquisitor?

3.3.1 Excess of power regarding questions of law: may the tribunal disregard the choice of law contained in the contract?

3.3.1.1 The difficult borderline between a review of the applicability of the law and a review of the merits

3.3.1.2 The tribunal disregards the contract’s choice and applies national law

3.3.1.2.1 Disregard of the contract’s choice in favour of the otherwise applicable law

3.3.1.2.1.1 Violation of the ordre public of the lex arbitri?

3.3.1.2.1.2 Application of the chosen law refers to the excluded law

3.3.1.2.1.3 Application of private international law

3.3.1.2.1.4 Conclusion

3.3.1.2.2 Disregard of the contract’s choice in favour of a law that is not otherwise applicable

3.3.1.2.2.1 Has the tribunal exceeded its power?

3.3.1.2.3 Disregard of the contract’s choice of law in favour of transnational sources

3.3.1.2.3.1 Would this be considered as an excess of power?

3.3.1.2.4 Conclusion

3.3.2 Excess of power regarding questions of law: may the applicable law be disregarded if the parties do not sufficiently prove it?

3.3.3 Excess of power regarding questions of law: may the tribunal develop its own legal arguments?

3.3.4 Excess of power regarding questions of fact: is the tribunal bound to decide only an invoked facts?

3.4 Fair hearing: inviting the parties to comment

3.4.1 Distinction between domestic and international arbitration?

3.5 Procedural irregularity

3.5.1 Decision at law or in equity (ex bono et aequo)

3.5.1.1 Is transnational law the basis for a decision at law or ex bono et aequo?

3.5.1.2 The application of transnational sources and procedural irregularity

3.5.1.3 Conclusion

3.5.2 Burden of proof: may the tribunal request additional information to undermine uncontested evidence?

3.6 Conclusion

6 Conclusion

Bibliography

Index

 

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