The Use of the Unidroit Principles in International Construction Contracts
Dr Donald Charrett (2013) 30(4) International Construction Law Review 507.
The Unidroit Principles of International Commercial Contracts are a set of a-national principles that apply to the formation, validity, interpretation, performance and termination of commercial contracts. They are intended to be a modern statement of a “lex mercatoria” for international contracts in which the rules are not derived from any particular national law, but nevertheless embody contractual principles which are or can be recognized by the laws of any country, whether those laws are based on the common law or the civil law.
The UP have evolved from a considerable amount of work by a number of skilled and experienced lawyers from many countries and from all the major legal systems. It is suggested that they represent a set of overarching principles that are appropriate to regulate an international contract in a manner that is:
· fair to all parties;
· straightforward to apply;
· predictable in outcome;
· independent of a particular national legal system;
· generally consistent with the contract law and principles in any country (with some exceptions).
As a set of principles, the UP may be complementary to and supportive of the specific contract which applies to a given situation, in a similar way that the common law, civil law or statute law typically applies to regulate the entry into, and execution and termination of the contract in the given legal system. However, because the UP are transnational, they do not and cannot have the legal force of a national legal system which is based on government power. Any force that the UP have, can only be derived from the parties’ contractual arrangements. Furthermore, any such power the parties themselves have invested in the role of the UP will be illusory, unless that power is supported by a relevant legal system which supports the parties’ freedom of contract.
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