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The Role of the UNIDROIT Principles and the PECL in the Interpretation and Gap-filling of CISG

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CISG Methodology
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The Role of the UNIDROIT Principles and the PECL in the Interpretation and Gap-filling of CISG*Pilar Perales Viscasillas A. Introduction The use of the UNIDROIT Principles of International Commercial Con-tracts, 2004 (UPIC)1 and the Principles of European Contract Law (PECL)2* The present work is written under the Research Project of the Ministry of Science and Technology (Spain) (DER2008-02244/JURI): Uniform International Com-mercial Law and Its Impact on European Contract Law: UNIDROIT Principles 2004 and International Commercial Arbitration under UNCITRAL. Head of the team: Pilar Perales Viscasillas. 1 International Institute for the Unification of Private Law (UNIDROIT), 1st ed., Rome 1994, and 2nd ed., Rome 2004, available at http://www.unidroit.org. The UPIC, drafted by a group of experts under the auspices of UNIDROIT, have followed very closely the CISG, especially in the first edition. The second edition of the Principles goes further as they deal with several issues not touched expressly by the CISG, inter alia the authority of agents, third party rights, and set-off. The UPIC have been well received in practice as well as by scholars: their success is higher as it was foreseen by their drafters, as recognised by Bonell, An International Restatement of Contract Law. The UNIDROIT Principles of International Commercial Contracts, 3rd ed., New York 2005, 264. Thus, there was the need for a second edition amending the Principles when necessary and extending their scope. The new 2004 Preamble adds two new purposes: the interpretation and supplementation of domestic law and their application when the parties have not chosen any law to govern their contract, the latter in line with Art. 1:101(3)(b) PECL. Case law on the UPIC is available at www.unilex.info. Most of the cases cited in this paper can be found in this database. 2 Drafted by the Commission on European Contract Law (or Lando Commission after their president Ole Lando) and published by Lando/Beale (eds.), Principles of European Contract Law, Parts I and II, The Hague 2000 (Part I and Part II). Part I and Part II were published in 1995 and 1999, respectively, and deal with formation of contract, validity, performance, non-performance and remedies. Part III was pub-lished in 2003 and deals with assignment, assumption of debts, set-off, precriptions and conditions. The European Principles are similar to the Restatements of Law in the United States and have closely followed both the CISG and the UPIC. They

The Role of the UNIDROIT Principles and the PECL in the Interpretation and Gap-filling of CISG*Pilar Perales Viscasillas A. Introduction The use of the UNIDROIT Principles of International Commercial Con-tracts, 2004 (UPIC)1 and the Principles of European Contract Law (PECL)2* The present work is written under the Research Project of the Ministry of Science and Technology (Spain) (DER2008-02244/JURI): Uniform International Com-mercial Law and Its Impact on European Contract Law: UNIDROIT Principles 2004 and International Commercial Arbitration under UNCITRAL. Head of the team: Pilar Perales Viscasillas. 1 International Institute for the Unification of Private Law (UNIDROIT), 1st ed., Rome 1994, and 2nd ed., Rome 2004, available at http://www.unidroit.org. The UPIC, drafted by a group of experts under the auspices of UNIDROIT, have followed very closely the CISG, especially in the first edition. The second edition of the Principles goes further as they deal with several issues not touched expressly by the CISG, inter alia the authority of agents, third party rights, and set-off. The UPIC have been well received in practice as well as by scholars: their success is higher as it was foreseen by their drafters, as recognised by Bonell, An International Restatement of Contract Law. The UNIDROIT Principles of International Commercial Contracts, 3rd ed., New York 2005, 264. Thus, there was the need for a second edition amending the Principles when necessary and extending their scope. The new 2004 Preamble adds two new purposes: the interpretation and supplementation of domestic law and their application when the parties have not chosen any law to govern their contract, the latter in line with Art. 1:101(3)(b) PECL. Case law on the UPIC is available at www.unilex.info. Most of the cases cited in this paper can be found in this database. 2 Drafted by the Commission on European Contract Law (or Lando Commission after their president Ole Lando) and published by Lando/Beale (eds.), Principles of European Contract Law, Parts I and II, The Hague 2000 (Part I and Part II). Part I and Part II were published in 1995 and 1999, respectively, and deal with formation of contract, validity, performance, non-performance and remedies. Part III was pub-lished in 2003 and deals with assignment, assumption of debts, set-off, precriptions and conditions. The European Principles are similar to the Restatements of Law in the United States and have closely followed both the CISG and the UPIC. They

Chapters in this book

  1. Frontmatter I
  2. Table of contents XI
  3. Preface 1
  4. Methodological Problems in the Drafting of the CISG 5
  5. Tracing Methodology in the CISG: Dogmatic Foundations 33
  6. Literal Interpretation: The Meaning of the Words 61
  7. Legislative Intention and the CISG 91
  8. Case Law Precedent and Legal Writing 113
  9. The Observance of Good Faith in International Trade 133
  10. An Economic Analysis of the CISG 151
  11. Homeward Trend: What, Why and Why Not 171
  12. Macro-Systematic Interpretation of Uniform Commercial Law: The Interrelation of the CISG and Other Uniform Sources 207
  13. The CISG and Its General Principles 261
  14. The Role of the UNIDROIT Principles and the PECL in the Interpretation and Gap-filling of CISG 287
  15. Constructive Interpretation – Applying the CISG in the 21st Century 319
  16. The Interpretation of the CISG in China 343
  17. The Interpretation of the CISG in the Arab World 355
  18. CISG and Arbitration 375
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https://doi.org/10.1515/9783866537224.287

Chapters in this book

  1. Frontmatter I
  2. Table of contents XI
  3. Preface 1
  4. Methodological Problems in the Drafting of the CISG 5
  5. Tracing Methodology in the CISG: Dogmatic Foundations 33
  6. Literal Interpretation: The Meaning of the Words 61
  7. Legislative Intention and the CISG 91
  8. Case Law Precedent and Legal Writing 113
  9. The Observance of Good Faith in International Trade 133
  10. An Economic Analysis of the CISG 151
  11. Homeward Trend: What, Why and Why Not 171
  12. Macro-Systematic Interpretation of Uniform Commercial Law: The Interrelation of the CISG and Other Uniform Sources 207
  13. The CISG and Its General Principles 261
  14. The Role of the UNIDROIT Principles and the PECL in the Interpretation and Gap-filling of CISG 287
  15. Constructive Interpretation – Applying the CISG in the 21st Century 319
  16. The Interpretation of the CISG in China 343
  17. The Interpretation of the CISG in the Arab World 355
  18. CISG and Arbitration 375
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