Transcript recht van de internationale handel

GENERAL CONTRACT LAW
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Conflict rules: see Ch. 3 IPL
Most national legal systems have no specific rules for cross-border
transactions or international contracts in general (see Ch. 3 IPL)
Uniform international law (by international instruments) ?
In the EU some harmonisation of general contract law. Esp.
Consumer law, but some rules for business contracts, eg Late
Payment Directive
International conventions on specific types of contracts (sales,
carriage or tarnsport, …)
OHADA Uniform Acts (on commercial contracts) and draft general
contract law 2004
Soft law and model laws, next slide
Obligations arising out of other instruments, but relevant for
contract law:
National mandatory law
International soft law, eg Principles on business and human rights
GENERAL CONTRACT LAW
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« soft law » and model laws on general contract law
Possible optional instruments* : Unidroit « Principles », PECL
(Lando-commission). Conflict rule will determine whether accepted
as « law » or merely as contract clauses
Other restatements in contract law in general: Draft Common Frame
of reference (DCFR)
Model laws on specific questions, e.g. Uncitral model law electronic
commerce;
*Examples of existing optional instruments: CISG (opt-out),
European trademark, societas europea, international last will,
european procedures. On Oct 11, 2011, the EU Commission
published a Draft optional sales law (« CESL »)
UNIDROIT PICC
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Unidroit Principles for International Commercial contracts
« Principles », i.e. no Convention or Model Law
First edition 1994 (120 art.)
Enlarged edition 2004 (185 art.)
Further enlarged 2010/2011 (211 art.) (Endorsed by Uncitral)
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Intended scope of application: international commercial contracts
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Regulated matters: Formation (incl. Representation), Validity (defects of
consent, specific clauses), Interpretation, « Contents », Performance Nonperformance and remedies, Set-off, Contractual Assignment of rights and
contracts, Transfer of obligations, Limitations of Actions (Prescription)
Additional chapters 2010/2011: conditional obligations, illegality, plurality
of debtors or creditors, unwinding of failed contracts (restitution)
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Not covered: non-contractual assignment
UPICC PREAMBLE
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Preamble: Purpose of the Principles
These Principles set forth general rules for international commercial
contracts.
They shall be applied when the parties have agreed that their contract be
governed by them.
They may be applied when the parties have agreed that their contract be
governed by general principles of law, the lex mercatoria or the like.
They may be applied when the parties have not chosen any law to govern
their contract.
They may be used to interpret or supplement international uniform law
instruments.
They may be used to interpret or supplement domestic law.
They may serve as a model for national and international legislators.
See also 1.4. : applicable insofar as the conflict rule allows it
UPICC– INTERPRETATION AND
GAP-FILLING
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Art. 1. 6 (Comp. 7 CISG) – Autonomous (& teleological) interpretation
(Interpretation and supplementation of the Principles)
(1) In the interpretation of these Principles, regard is to be had to their
international character and to their purposes including the need to
promote uniformity in their application.
(2) Issues within the scope of these Principles but not expressly settled by
them are as far as possible to be settled in accordance with their
underlying general principles.
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But also duty to act in good faith: Art. 1.7 (Good faith and fair dealing)
(1) Each party must act in accordance with good faith and fair dealing in
international trade.
(2) The parties may not exclude or limit this duty.
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And art. 1.9 Usages and practices (comp. 9 CISG)
UPICC– GENERAL PROVISIONS
JURIDICAL ACTS
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Art. 1.1: Freedom of contract
Art. 1.2: No form required (unless ...)
Art. 1.3: Binding character of contract
Art. 1.7: Duty to act according to good faith & fair dealing
How intention is determined – interpretation of acts: Art. 4.1 and 4.2
(4.1. for contracts, 4.2 for unilateral acts) – Quid merger clause – No oral
modification clause
Usages and practices – Art. 1.9
Rules on notices in 1.10
E-COMMERCE
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Uncitral model law 1996 (1998) deals i.a. with:
- « Data messages » cover EDI, e-mail, telegram, telex and telecopy
- Art. 5: Information shall not be denied legal effect merely because it is
in the form of a data message
- Art. 6: Writing < accessible so as to be usable for subsequent reference
- Art. 7: Signature
- Art. 8: Whether a data message can be an « original »
- Art. 13: Attribution of data messages (who is the sender)
- Art. 15: Time of (1) dispatch and (2) of receipt
CISG Advisory Council Opinion No. 1 on e-communication under CISG
UN Convention on the Use of Electronic Communications in International
Contracts 2005 (in force but only 6 ratifications, i.a. Russia)
EU Directive 1999/93 on electronic signatures: different degrees of esignature; legal effects
EU Directive 2000/31, framework directive e-commerce
- Art. 9 Treatment of contracts: equivalence (some exceptions)
- Rules relating to information duties, conclusion contract, receipt, ...
UPICC– FORMATION
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Very similar to CISG
2.1.1.: conclusion of the contract by offer and acceptance or by
conduct of the parties that is sufficient to show agreement
Rules on offer and acceptance similar to CISG
Art. 2.1.12 (Writings in confirmation)
Art. 2.1.14 (Contract with terms deliberately left open)
Art. 2.1.17 and 2.1.18 on merger clauses and clauses on
modification in a particular form.
Going beyond CISG: Art. 2.1.15 on liability for negotiations (or
breaking off) in bad faith
Specific rules for battle of forms (2.1.22) (NB. comparative law:
usually knock out; Engl = last shot; NL = first shot)
UPICC– AUTHORITY OF
AGENTS
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Not in CISG , inspired by Unidroit Convention (1983, not in force)
Deals with « authority », i.e. external relationship
Not internal relationship (eg. agency contract) (2.2.1)
Authority by grant (express or implied) (2.2.2); authority based on
belief caused by the principal (2.2.5 (b))
Direct relationship in case of disclosed agency (2.2.3)
In principle no direct relationship in case of undisclosed agency
(2.2.4)
Liability if the agent acts outside authority: positive interest (2.2.6)
Art. 2.2.7 on conflicts of interest,
Art. 2.2.9 on ratification
Art. 2.2.10 on effect of internal termination of autority
UPICC– VALIDITY
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Not in CISG
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Ch. 3.2. Deals with defects of consent giving rise to a right to
avoid the contract (4 grounds) (next slide)
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« Negative reflex effect » of rules on non-performance in Art.
3.2.4.
Esp. important for sales (CISG rules on non-performance not
displaced by UPICC rules on e.g. mistake)
UPICC– VALIDITY
The 4 defects of consent (cont.):
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Mistake (3.2.2.): 4 cases of mistake (shared, caused, left in error,
contract not yet relied upon) + requirement of material difference,
no gross negligence, risk not assumed or to be bourne
Caused = normally by giving information (« representations »*)
turning out to be incorrect
* Often a contract will contain explicut representations warranted by a
party.
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Error in expression or transmission: treated as mistake of the
sender (3.2.3)
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Fraud (3.2.5.)
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Threats (3.2.6)
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Gross disparity or excessive advantage (with abuse of
circumstances) (3.2.7)
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UPICC– VALIDITY
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Deals with defects of consent (cont.):
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General rules on « avoidance » and its effects (in CISG avoidance
means termination; here avoidance means annullment)
Attribution of acts or omissions to third parties (3.2.8)
Exercise of the right: by notice to the other party (3.2.11) within a
reasonable period (3.2.12), not anymore after confirmation (3.2.9)
Effect = retroactive (3.2.14)
Avoidance gives rise to a right to restitution (a non-contractual
obligation) (3.2.15)
Possibly damages for precontractual liability (3.2.16)
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UPICC– VALIDITY
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Ch.3.3. deals with « illegality », or rather with the effect of
mandatory rules outside the PICC not specifying their effect on the
contract
Eg contract caused by corruption: in principle voidability (3.3.1.
UPICC)
Rules on restitution in case of violation of mandatory rules in art.
3.3.2.
NB. Conflicts may arise between contradictory mandatory rules of
countries, e.g.:
- (Anti-)Boycott: Arab league boycotts Israel and blacklists companies
doing business with Israel; USA prohibits companies to take part
in boycott or more generally discriminate on the basis of race,
national origin etc. (see US Export Administration Act).
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UPICC– CONTENTS OF
CONTRACTS IN GENERAL
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Ch. 5 contains various rules
Under interpretation: supplying an omitted term (Art. 4.8) where
important for the determination of their rights and duties
Art. 5.1.2: implied obligations stem from (a) the nature and
purpose of the contract; (b) practices established between the
parties and usages; (c) good faith and fair dealing; (d)
reasonableness.
Art. 5.1.3. Duty to co-operate with each other
Art. 5.1.4. Distinction duty result / merely best efforts
Art. 5.1.7. Price determination mechanisms: normal price;
unilateral unless manifestly unreasonable; third party decision:
exernal factor ceasing to exist
Art. 5.1.8. Contract for an indefinite period: ending by notice with
reasonable time
Art. 5.3.1 ff.: rules on conditional obligations
UPICC– CONTENTS
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Art. 5.2.1. ff. Contracts in favour of third parties; rule on defences
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stipulator
beneficiary
(3rd party)
(provision) (original
contract)
promisor
resulting relationship
CONTENTS OF CONTRACTS
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Main obligations will depend on the type of contract (sale, service
contract, …)
Non-specific additional obligations and other clauses:
« Boilerplate clauses » (see also Ch. 3 IPL)*, eg «no material
adverse change »; « indemnity » (from and against third party
claims); waiver of copyright; waiver of privacy (use of personal
data); confidentiality clauses; non-disparagement clauses
Reaction in national law, esp. consumer law (many clauses will be
unfair in at least consumer contracts); YODA (you own your
device Act), etc.
* Some boilerplate clauses are discussed separately: entire agreement clause,
no waiver clause, no oral amendment, severability or divisibility, clauses
on notices, hardship and force majeure, clause specifying essential terms
or fundamental breaches, sole remedy clause, clause shortening
prescription or limitation
CONTENTS OF CONTRACTS
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Clauses related to the responsibility of buyer/client in their home
country:
- Eg sustainability clauses imposed on supplier (to protect against
unethical behaviour of suppliers) (esp. because certain efforts
may be required by law, e.g. California Transparency in Supply
Chains Act 2010)
- Incl. clauses against trafficking and slavery stipulated by
client/buyer
- Anti-corruption clauses (ICC model anti-corruption clause 2012)
or more generally compliance clauses; they may also give the
client rights to inspect the supplier
UPICC - PERFORMANCE
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Modalities of (performance) of the obligation:
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Time of performance (Art. 6.1.1.)
Order of performance (Art. 6.1.4.) in principle simultaneous
Place of performance (Art. 6.1.6)
- Monetary obligation: creditor’s place (« obligee »)
- Other obligations: debtor’s place (« obligor »)
Monetary obligations: means of payment, currency etc. (6.1.7 ff.). See
Topic 10 (International Payments)
Rules where public permission required for performance (6.1.14 ff)
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Hardship (change of circumstances) Art. 6.2.1 ff.
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Performance as extinction of an obligation
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Art. 6.1.12-13: imputation of performance
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UPICC – REMEDIES FOR NONPERFORMANCE
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Overview of remedies for non-performance:
Withholding performance (suspension)
Specific performance
Termination (called « avoidance » in CISG) and price reduction
Damages
General principles:
Free choice, no hierarchy of remedies (« pari passu ») (but sometimes
fundamental breach required)
Combinability, esp. of damages and other remedies
Largely self-help (unilateral declaration)
By notification (usually within a reasonable time)
Instruments for restraining termination as a remedy:
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Additional period for performance (Art. 7.1.5)
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The seller’s right to cure (Art. 7.1.4)
UPICC – NON-PERFORMANCE
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« Non-performance » of an obligation as general (unitary) concept) (Art.
7.1.1, shift from «(breach of) contract » to « obligation »)
In view of the availalbe remedies distinction between:
- non-performance caused by the creditor itself (7.1.2): no remedy
- non-performance excused under 7.1.7 (force majeure): only withholding
performance, termination and interest on money due
- non-performance cured without delay (7.1.4): only withholding
performance, damages
- non-performance not excused: all remedies
Rule on exemption clauses: only if not grossly unfair (7.1.6)
UPICC – REMEDIES FOR NONPERFORMANCE
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Withholding performance (7.1.3.)
(the rule on anticipatory breach as in CISG is missing) (but implied
in 7.3.3/7.3.4)
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Right to (enforce) (specific) performance
- always for monetary obligations (7.2.1) (no exception for cases
where you can sell it elsewhere)
- in principle for other obligations (7.2.2) unless impossible or
unlawful; unreasonably burdensome, reasonably available
elsewhere, strictly personal character; must be requested within a
reasonable time
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Termination (next slide)
Damages (s. further)
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UPICC – REMEDIES :
TERMINATION (1)
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Grounds for termination:
- fundamental non-performance (7.3.1. (1) (2))
- after an additional period granted for performance (Nachfrist,
7.1.5. and 7.3.1 (3))
- in case of anticipatory fundamental non-performance: 7.3.3. and
7.3.4.
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Mode of termination (7.3.2):
- by notice
- in case of late or defective performance: within a reasonable
time
UPICC – REMEDIES :
TERMINATION (2)
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Scope of termination: all obligations, unless extended over time
and divisible (7.3.6 (2))
? Price reduction
Effects of termination:
- release from (outstanding) obligations (7.3.5 (1))
- restitution of performances (in kind or in money) (7.3.6. (1))
- surviving clauses (7.3.5 (3))
- damages reserved (7.3.5 (2))
UPICC – REMEDIES : DAMAGES
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Except where non-performance is excused (7.4.1.)
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General measure of damage:
- positive interest (see 7.4.2 (1), incl. lost profit)
- includes non-pecuniary loss (7.4.2. (2))
- includes loss of a chance (7.4.3.)
- limited by foreseeability test (7.4.4)
- restriction where due to creditor or non-mitigation of harm by creditor
(7.4.7, 7.4.8)
- includes costs of mitigation (7.4.8 (2))
UPICC – REMEDIES : DAMAGES
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Calculation of damage:
late payment: interest (plus further damage) (Art. 7.4.9); interest rate in
7.4.9 (2, place of payment); dies interpellat pro homine (7.4.10)
reasonable substitute transaction: price difference (plus further damage)
(Art. 7.4.5)
current price (Art. 7.4.6)
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Agreed payment for non-performance: clauses binding unless grossly
excessive in relation to actual harm (7.4.13)
(compare Council of Europe Resolution 1978(3) on penal clauses in civil
law; UNCITRAL Uniform Rules on contract clauses for an agreed sum due
upon failure of performance 1983)
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NB. An ‘indemnity’ is an autonomous obligation to pay an amount (not as
compensation for non-performance of another obligation)
UPICC – SET-OFF
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Requirements:
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Obligations of the same kind between 2 parties – incl. monetary debts in different
but freely convertible currencies (8.2.)
Different models in national laws: either automatic if stricter conditions are met, or
by unilateral declaration. Unidroit Principles chooses last model.
- Can be set-off by notice (8.3.) by one party where:
- its own obligation (« active obligation ») is payable (entitled to perform)
(8.1.(1)a)
- the obligation of the other party (« passive obligation ») is:
(a) due (8.1.(1)b) and
(b) ascertained or arising from the same contract ((8.1.(1) b and (2))
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In UPICC no « retroactive » effect (8.5 (3)) (but in some cases a partly similar rule,
cfr. set-off & prescription; set-off & assignment)
UPICC does not deal with contractual set-off (netting) but does not exclude it
UPICC – ASSIGNMENT OF
RIGHTS
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Assignment = transfer of a right (property)
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Scope of Ch. 9.1:
- contractual assignment of contractual rights
- not: rights embodied in a negotiable instrument (9.1.2.)
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Limits to assignability
- where significantly more burdensome (9.1.3.)
- partially assignable ? If divisible (9.1.4)
- no-assignment clauses have NO effect (1) for rights to payment of
money and (2) in case of good faith of assignee (9.1.9)
UPICC – ASSIGNMENT OF
RIGHTS
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Requirements for assignment:
- existence of the right ? For future rights assignment takes place with
retroactive effect as soon as the right comes into existence (9.1.6)
- mere agreement assignor / assignee (neither notice nor consent
required for the transfer as such) (9.1.7)
Duty to perform of the debtor:
- according to (order of) notice (9.1.10 and 9.1.11)
- The assignee may demand adequate proof of assignment (9.1.12)
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UPICC – ASSIGNMENT OF
RIGHTS
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All defences available + set-off available at time of notice (9.1.13)
(valuta) + transfer
of property
assignor
assignee
(substituted
creditor)
(provision) (original
contract)
debitor cessus
resulting relationship
(substituted creditor)
UPICC – NEW DEBTORS
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Ch. 9.2. Substitution or addition of debtor
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3 Types (9.2.5)
- substitution: original debtor discharged
- subsidiary liability of the original debtor
- solidary liability of old & new debtor (« joint and several » in Eng. law)
Several more specific institutions or instruments can be classified in this
scheme.
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Independent new debtors ? See e.g.: documentary credit, independent
guarantees
UPICC – PLURALITY OF
PARTIES
Ch. 11.1. Plurality of debtors (2 types):
- either separate debtors
- or « joint and several » (= solidary debtors)
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Art. 11.1.3. ff deal with the availability of defences, effcets of
performancce and set-off, release, etc. for the other debtors.
Art. 11.1.9 ff. deal with the apportionment of shares and the internal
relationship between solidary debtors (contributory claim + subrogation)
Ch. 11.2. Contains rules on plurality of creditors (3 types)
- separate
- joint and several
- joint
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UPICC – LIMITATION OF
ACTIONS
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System of a double period: 3 / 10 years (10.2)
- 3 years from (constructive) knowledge (after the creditor knows or
ought to know the facts as a result of which the creditor’s right can be
exercised)
- 10 years from the day the right can be exercised
Renewal of limitation period by acknowledgment (irrespective of 10
years) (10.4)
Suspension in case of proceedings (judicial, arbitral and similar): 10.5 to
10.7 – without a one year extension !?
Prolongation until one year after impediment (force majeure, death or
incapacity) ceases: 10.8
Effects of expiration:
- « weak effect » (art. 10.9); no restitution because not « undue »
(10.11)
- set-off possible until assertion of prescription (10.10)
- not ex officio by the judge