• Journal of Arbitration Studies
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• v.23 no.3
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• pp.39-59
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• 2013

This article discusses the use of the UNIDROIT Principles of International Commercial Contracts in international commercial arbitration. Because the Principles are designed specifically for cross-border commercial transactions, the use of the Principles avoids many of the legal rules that would govern from otherwise applicable domestic law that do not reflect the expectations of parties in international trade.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.25
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• pp.41-71
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• 2005

"UNIDROIT Principles 2004" focused on an enlargement rather than a revision. An additional Section or Chapter so to speak, which are about, the Authority of a Agents, Third Party Rights, Set-off, Assignment of Rights, Transfer of Obligations and Assignment of Contracts, and Limitation Periods have been added, while the only change of substance made to the 1994 Edition, apart from two paragraphs in the Preamble, and three new provisions in Chapter 1 and 2 which are necessary to adapt the Principles to the needs of electronic contracting. The Principles which have the nature of the restatement of international uniform laws (for example CISG) are continuous exercise. Therefore we should note whether in the future our concerns would be on a additional topics on a improvement of the current text by monitoring the reception of the "UNIDROIT Principles 2004" in practice, and the application by contracting parties. The purposes of the Principles may be classified into three ; the rules of law governing the contract, means of interpreting and supplementing international uniform law or domestic law, or models for national and international legislator. Among them, the function of governing law may be applied by the express choice by the parties or by the implied choice like "general principles of law" or "les mercatoria", and it may be applied in the absence of any choice of law by the parties. Among there importance functions, this writer would like to emphasize the function to supplementing international uniform law instruments. The reason is that the CISG which has been established as an international uniform sales act and to which our country would be a contracting State from March, 2005, needs a lot of gap-filling. For this purpose it is advisable the parties to insert following provisions in their contract. "This contract shall be governed by the CISG, supplemented when necessary by the UNIDROIT Principles 2004" Thus success in practice of the UNIDROIT Principles over the last then years has surpassed the most optimistic expectations. It is hoped that the 2004 Edition of the UNIDROIT Principles will be just as favorably received by legislators, business persons, lawyers, arbitrators and judges and become even better known and more widely used throughout the World.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.51
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• pp.101-131
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• 2011

The Governing Council of UNIDROIT at its 90th session adopted on 10 May 2011 the third edition of the Principles of International Commercial Contracts("UNIDROIT Principles 2010"). The UNIDROIT Principles of International Commercial Contracts first published in 1994 and in a second edition in 2004, are taken by legislators worldwide as a model for contract law reform and increasingly used in international contracting and arbitration practice, as well as by the courts to interpret and supplement the applicable domestic law. The UNIDROIT Principles are particularly useful to parties when negotiating and drafting international contracts. The new edition of the Principles, UNIDROIT Principles 2010, prepared by a group of experts from all over the world including representatives of numerous international organizations and arbitration centers. The UNIDROIT Principles 2010 contain new provisions on restitution in case of failed contracts, illegality, conditions, and plurality of obligors and obligees, while with respect to the text of the 2004 edition the only significant changes made relate to the Comments to Article 1.4.

• Journal of Arbitration Studies
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• v.9 no.1
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• pp.161-182
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• 1999

The purpose of this paper is to examine the applicability of the UNIDROIT Principle in international commercial arbitration. For this purpose, I have studies the basic two characters of this Principles: One is of general rule(principle); Another is of international and commercial character. According to CISG, questions concerning matters governed by the CISG which are not expressly settled in it are to be settled in conformity with the general principles, so this Principles will cover many questions which are not expressly settled in the applicable law, by gap-filing, analogy or usage. In the preamble of this Principles, there are five cases in which the Principles shall be applied or may be applied. If the disputes are submitted to the any national court, the application of this Principles would be restricted because of the mandatory rules of national, international or supranational origin. But the disputes are submitted to arbitration, the arbitrator would have more discretional powers to apply the Principles than the judge. The reason is that in the arbitration, the arbitrators do not bear obligation to act in conformity with the law applicable by virtue of the rules of rules of private international law. I also examined the applicability of the Principles in cases which there are no mentions in preamble: When the international arbitrators choose the Principles; When the arbitrators decide ex aequo et bono; When the both parties have not chosen the governing law; When there are gaps in domestic law chosen by the parties; When the applicable domestic law is insufficient. In all these cases, the Principles may be applied more easily and conveniently in arbitration than in litigation. Thus to envisage the application of this Principle in international arbitration, first both parties in international commercial contracts should incorporate this Principle as a governing law in their contracts, and second, the arbitrators should try to apply this Principles in their arbitrations by choice, analogy, general principles or usage.

• 한국무역상무학회:학술대회논문집
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• 2004.12a
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• pp.9-40
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• 2004

"UNIDROIT Principles 2004" focused on an enlargement rather than a revision. An additional Section or Chapter so to speak, which are about, the Authority of a Agents, Third Party Rights, Set-off, Assignment of Rights, Transfer of Obligations and Assignment of Contracts, and Limitation Periods have been added, while the only change of substance made to the 1994 Edition, apart from two paragraphs in the Preamble, and three new provisions in Chapter 1 and 2 which are necessary to adapt the Principles to the needs of electronic contracting. The Principles which have the nature of the restatement of international uniform laws (for example CISG) are continuous exercise. Therefore we should note whether in the future our concerns would be on a additional topics on a improvement of the current text by monitoring the reception of the "UNIDROIT Principles 2004" in practice, and the application by contracting parties. The purposes of the Principles may be classified into three ; the rules of law governing the contract, means of interpreting and supplementing international uniform law or domestic law, or models for national and international legislator. Among them, the function of governing law may be applied by the express choice by the parties or by the implied choice like "general principles of law" or "les mercatoria", and it may be applied in the absence of any choice of law by the parties. Among there importance functions, this writer would like to emphasize the function to supplementing international uniform law instruments. The reason is that the CISG which has been established as an international uniform sales act and to which our country would be a contracting State from March, 2005, needs a lot of gap-filling. For this purpose it is advisable the parties to insert following provisions in their contract. "This contract shall be governed by the CISG, supplemented when necessary by the UNIDROIT Principles 2004" Thus success in practice of the UNIDROIT Principles over the last then years has surpassed the most optimistic expectations. It is hoped that the 2004 Edition of the UNIDROIT Principles will be just as favorably received by legislators, business persons, lawyers, arbitrators and judges and become even better known and more widely used throughout the World.

• International Commerce and Information Review
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• v.11 no.1
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• pp.333-351
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• 2009

The American Law Institute(ALI) has presented drafts of "Principles of the law of software contracts" to clarify and unify the law of software transactions. These principles apply to agreements for the transfer of or access to software. Providing these principles means something in software contracts. First of all, these principles seek to limit the scope to cover only contracts involving software exchanged or accessed for consideration, while UCITA includes a wide variety of "computer information". Secondly, this project is "Principles" instead of "Restatement" which means that these principles are not the law unless a court adopts it. This is for flexibility not to hinder law's adoptability of new legal issues that might be created in the future since the software industry has developed. Third, the project seek to balance between software transferor's interest and transferees to permit the use of remote disablement in limited circumstances. These principles, however, should be considered some concerns in the future work. For example, not to be a unconscionable agreement, it is better to suggest the specific click-wrap procedure and be more illustrative about what types of browser-wrap language are acceptable and what types are not.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.21
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• pp.129-151
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• 2003

Nowadays even if environment of international commercial transaction is changing quickly municipal law could not meet with such change accordingly. So far, however, efforts towards unification have prevailingly taken the form of binding instruments, such as non-national or supranational legislation, international conventions or international model laws. Among them, the UNIDROIT Principles with parties' autonomous and yet non-binding character do not only meet the substantive requirements of a true law merchant. In addition they also counter some of the main points of criticism against the modern lex mercatoria. As such the Principles constitute a cornerstone in the lex mercatoria debate and may become the heart of the new lex mercatoria. The purpose of this article is to ask whether there could be applied the Principles in international commerce. For the purpose it is to investigate when the Principles are applied in international commerce and how effectively the Principles are applied for the decision in international commercial disputes. Even though the Principles are used for reference by parties involved for the voluntary regulation of their contract, it is sufficiently expected that the Principles are to be a stepstone of uniform contract law in international commerce. Until now cases of appling the Principles are not satisfied with its expectation as a source of non-legislative means of unification or harmonization of law. Given the party's autonomy in the contract, this is among other things because business parties are strongly tend to observe their national laws in their international commerce. And also, even though there are a number of neutral and uniform regulations for international commercial contracts, parties do not often recognize their usefulness with being up to expectation. In order to explore the applicability of the Principles a number of cases of ICC International Court of Arbitration and others are quoted.

• Journal of Arbitration Studies
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• v.16 no.2
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• pp.151-182
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• 2006

The International Institute for the Unification of Private Law (UNIDROIT) established UNIDROIT principles, which could be applicable as international unified rules. The UNIDROIT Principles plays the role of interpreting and complementing CISG and functions as a law applicable to international commercial disputes. As shown by cases of practical application so far, the principles are expected to be applied frequently to international commercial arbitration in the future. In the situation that there is no internationally unified judicature, it is necessary to promote rational dispute resolution and legal stability through arbitration by adopting the UNIDROIT Principles of Lex Mercatoria as a governing law of international commercial contracts. In conclusion, UNIDROIT principles, along with CISG, are expected to playa great role as the applicable law of international commercial contracts and as standards for resolving international commercial disputes.

• Journal of Arbitration Studies
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• v.12 no.2
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• pp.221-262
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• 2003

In recent years, information technological revolution of using Internet in the Stock Market has shown reconsideration of Securities and Exchange Law. Since the 1998 Taipei Conference, ILA have studied upon it and presented 6th Interim Report during the 2000 London Conference. This paper summarizes a part of the 6th Interim Report. The Internet has created a medium to which traditional principles of jurisdiction may not have full relevance. To understand the jurisdictional issues posed by this new medium, we should first review the traditional principles of jurisdiction under international, U. S. law and Other Countries law. In previous reports, the general principles of jurisdiction in international law have been described. These principles are, however, difficult to apply in the context of Internet and other forms of computerized securities trading. Regulators all over the world are trying to address and solve jurisdictional issues raised by the Internet. The traditional rules of jurisdiction in international law, grounded as they are on a geography-based approach, may be in the process of being undermined by the Internet and other global networks allowing for remote access to information and to markets.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.12
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• pp.227-252
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• 1999

In this Article the writer introduces the origin and preparation of "the UNIDROIT Principles of International Commercial Contracts". In May 1994 the Governing Council of the UNIDROIT gave its formal imprimatur to the UNIDROIT Principles and recommended their widest possible distribution in practice. After brief discussion of the establishment procedure of the UNIDROIT Principles the writer discusses the legal nature of the Principles as an international restatement of contract law. The UNIDROIT Principles has more flexibility than international convention. But it has deficit in the sense of legal stability. Also the scope of application of the Principles was discussed. It can be applied only to the international commercial contracts. It includes two basic principles in it's application, i. e. "commercial contracts" and "international contracts". For the rest of the Article the writer concentrates on the contents of the Principles and the basic ideas underlying the Principles from the point of view of the comparision between the UNIDROIT Principles and "the UN Convention on the International Sale of Goods" (CISG). The UNIDROIT Principles are only restatements and the CISG is an international convention. The application of the CISG is obligatory due to its nature as an international convention. In the contrary the possibility of the application of the UNIDROIT Principles is more flexible. The UNIDROIT Principles is a more comprehensive instrument than CISG. Therefore it can be applied to all kinds of international commercial contracts. In the contrary the CISG can be applied only to international sales contract. Since CISG only deals with contracts for the sale of goods, and the scope of the UNIDROIT Principles is much wider, no overlap can occur where contracts other than sales contracts are concerned. Rather the UNIDROIT Principles can supplement the CISG and the CISG also can be criteria in interpreting the UNIDROIT Principles. As the conclusion the writer summarizes the meanings of the UNIDROIT Principles and presupposed the futur perspectives of the Principles.