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Lawyers involved in international commercial transactions know well that
unforeseen events affecting the performance of a party often arise. Not
surprisingly, exemptions for non-performance are dealt with in a significant
number of arbitral awards. This very useful book thoroughly analyzes
contemporary approaches, particularly as manifested in case law, to the scope
and content of the principles of exemption for non-performance which are
commonly referred to as ‘force majeure’ and ‘hardship.’ The author shows that
the ‘general principles of law’ approach addresses this concern most
effectively.
Generally accepted and understood by the business world at large, this
approach encompasses principles of international commercial contracts derived
from a variety of legal systems. Its most important ‘restatements’ are found
in the 1980 United Nations Convention on Contracts for the International Sale
of Goods (CISG) and the UNIDROIT Principles of International Commercial
Contracts (UPICC).
Establishing specific standards and “case groups” for the exemptions under
review, the analysis treats such recurring elements as the following:
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contractual risk allocations;
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unforeseeability of an impediment;
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impediments beyond the typical sphere of risk and control of the obligor;
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responsibility for third parties (subcontractors, suppliers);
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legal impediments (acts of public authority) and effect of mandatory rules;
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involvement of states or state enterprises;
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interpretation of force majeure and hardship clauses;
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hardship threshold test;
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frustration of purpose;
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irreconcilable differences;
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comparison with exemptions under domestic legal systems (impossibility of
performance, frustration of contract, impracticability)
The book is a major contribution to the development of the use of general
principles of law in international commercial arbitration. It may be used as a
comprehensive commentary on the force majeure and hardship provisions of the
UPICC, as well as on Art. 79 of the CISG. In addition, as an insightful
investigation into the fundamental question of the limits of the principle of
sanctity of contracts, this book is sure to capture the attention of business
lawyers and interested academics everywhere.
Chapter 1. Introduction. § 1. Force Majeure and Hardship in
International Commercial Transactions. § 2. General Principles of
Commercial Contracts: Methodological Approach.
Chapter 2. Scope of Application of
General Contract Principles. § 3. General Remarks on the Governing
Law and the Application of General Contract Principles. § 4.
Choice of Law Agreement Providing for the Application of a National Law. §
5. No Choice of Law Made by the Parties.
Chapter 3. The Concept of Non-performance. § 6. The Concept of
Non-Performance under General Contract Principles. Chapter 4.
Force Majeure Excuse.§ 7.The Force Majeure Excuse as a General
Principle of Law. § 8. Individual Requirements of the Force
Majeure Excuse under General Contract Principles. § 9. Legal
Effects of the Force Majeure Excuse. § 10. Interpretation and
Effects of Force Majeure Clauses.
Chapter 5. Hardship (Change
of Circumstances): Fundamental Change of the Equilibrium of the Contract. §
11. Hardship as a General Principle of Law. § 12. Individual
Requirements of the Hardship Defence. § 13. Legal Effects of
Hardship. § 14. Interpretation and Legal Effects of Hardship
Clauses. § 15. Hardship Distinguished from Other Remedies.
Chapter 6.
Conclusion.
Bibliography,
Principles on Force Majeure in the
CISG, UPICC,PECL, the TLDB-Principles and ICC Force Majeure Clause 2003,
Principles on Hardship in the UPICC, PECL, the TLDB-Principles and ICC
Hardship Clause 2003, Index