When approving previous editions of the UNIDROIT Principles of International Commercial Contracts, the Governing Council emphasised the need for the Secretariat to monitor the use of the Principles in actual practice and to inquire with the international legal and business communities whether new topics should be considered for inclusion in future editions. Consistent with this instruction, following the adoption of the Model Clauses for the Use of the UNIDROIT Principles of International Commercial Contracts in 2013 (which are available here), the Secretariat drew the Governing Council’s attention to long-term contracts and the possibility of future work on the Principles in this area.
The 2016 edition of the UNIDROIT Principles is not intended as a revision of the previous editions. As amply demonstrated by the extensive body of case law and bibliographic references on the UNILEX database (see www.unilex.info), the UNIDROIT Principles continue to be well received generally and have not given rise in practice to any significant difficulties of application.
The main objective of the fourth edition of the UNIDROIT Principles is to take better into account the special needs of long-term contracts. To do so, the content of the 2010 edition has been altered only marginally: only six provisions have been amended, i.e. the Preamble and Articles 1.11, 2.1.14, 5.1.7, 5.1.8, and 7.3.7. Indeed, the majority of alterations were made to the Comments, in particular on the Preamble (amendments to Comment 2) and Articles 1.11 (addition of a new Comment 3), 2.1.14 (amendments to Comments 1-3 and addition of a new Comment 4), 2.1.15 (amendments to Comment 2 and addition of a new Comment 3), 4.3 (amendments to Comment 3 (which has become Comment 4) and addition of a new Comment 3), 4.8 (amendments to Comments 1-3), 5.1.3 (amendments to the Comment (which has become Comment 1) and addition of a new Comment 2), 5.1.4 (addition of a new Comment 3), 5.1.7 (amendments to Comments 2-3), 5.1.8 (amendments to the Comment (which has become Comment 1) and addition of a new Comment 2), 7.1.7 (addition of a new Comment 5), 7.3.5 (amendments to Comment 3 and addition of a new Comment 4), 7.3.6 (amendments to Comment 1), and 7.3.7 (amendments to Comments 1-2).
As a result, the 2016 edition of the UNIDROIT Principles, like the 2010 edition, consists of 211 Articles (as opposed to the 120 Articles of the 1994 edition and the 185 Articles of the 2004 edition) and covers virtually all the most important topics of general contract law. For ease of comparison, the 2016 edition contains a table of correspondence of the articles of the four editions.
At its 92nd session in May 2013, the Governing Council of UNIDROIT was seized of a Memorandum prepared by the Secretariat concerning possible future work on long-term contracts (cf. UNIDROIT 2013 – C.D. (92) 4(b)). The Memorandum recalled that the UNIDROIT Principles already contained a number of provisions which took into account, at least to a certain extent, the special needs of long-term contracts. Yet at the same time the Memorandum pointed out that there were still issues particularly relevant in the context of long-term contracts that the Principles did not address at all or did so only in part.
At its 93rd session in May 2014, the Governing Council was seized by a second Memorandum of the Secretariat containing an analytical survey of specific issues that might be addressed in the envisaged work on long-term contracts in the context of the UNIDROIT Principles (cf. UNIDROIT 2014 – C.D. (93) 3). On the basis of this Memorandum, the Governing Council decided to instruct the Secretariat to set up a restricted Working Group composed of experts that have shown particular interest in the proposed work on long-term contracts, for the purpose of formulating proposals for possible amendments and additions to the black-letter rules and comments of the current edition of the Principles with a view to covering the special needs of long-term contracts.
The Working Group that was set up was composed of Michael Joachim BONELL, Emeritus Professor of Law, University of Rome I, Consultant UNIDROIT (Chairman of the Group); Catherine CHAPPUIS, Professor of Law, Faculty of Law, University of Geneva, Member of the Groupe de travail Contrats Internationaux; Neil COHEN, Jeffrey D. Forchelli Professor of Law, Brooklyn Law School, New York; François DESSEMONTET, Emeritus Professor of Law, University of Lausanne; Paul FINN, Former Judge, Federal Court of Australia, Adelaide; Paul-A. GELINAS, Avocat aux Barreaux de Paris et de Montréal, Paris; Sir Vivian RAMSEY, Former Judge, Technology and Construction Court, Royal Courts of Justice, London; Christopher R. SEPPÄLÄ, Partner, White & Case LLP, Legal Advisor to the FIDIC Contracts Committee; Reinhard ZIMMERMANN, Professor of Law, Director at the Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg.
The Working Group held its first session in Rome from 19-22 January 2015. The session, which was attended also by a number of observers representing international organisations and other interested bodies (Cyril EMERY, Legal Officer, UNCITRAL Secretariat, Vienna; Pilar PERALES VISCASILLAS, Professor of Law, Universidad Carlos III de Madrid, Member of the CISG Advisory Council; Don WALLACE, Jr. Chairman of the International Law Institute, Washington, DC; Giuditta CORDERO MOSS, Professor of Law, University of Oslo, Member of the Norwegian Oil & Energy Arbitration Association; Pietro GALIZZI, Legal Affairs Department, Senior Vice President, ENI SpA, Milan.), was devoted to the examination of a position paper on “The UNIDROIT Principles of International Commercial Contracts and Long-term Contracts” prepared by Professor M.J. Bonell and containing a list of issues with related proposals and/or questions, for further consideration by the Working Group. For the Report of the session, see UNIDROIT 2015 Study L – Misc. 31 Rev.
The Working Group held its second session, at the kind invitation of the Max-Planck-Institut für ausländisches und internationales Privatrecht, in Hamburg from 26-29 October 2015. The proposed amendments and additions to the UNIDROIT Principles of International Commercial Contracts’ black-letter rules and comments were carefully examined and finalised, with a view to their submission to the UNIDROIT Governing Council for adoption at its 95th session on 18-20 May 2016. For a Report of the session, together with a list of participants, see UNIDROIT 2016 – Study L – Misc. 32.
At its 95th session in May 2016, the UNIDROIT Governing Council adopted the amendments and additions to the 2010 UNIDROIT Principles of International Commercial Contracts recommended by the Working Group on Long Term Contracts (which are set out in document UNIDROIT 2016 – C.D. (95) 3), with the exception of the new provisions on termination for compelling reason, and authorised the Secretariat to prepare and publish a new edition to be known as the “2016 UNIDROIT Principles of International Commercial Contracts”. The Report on the Governing Council’s deliberations is available in document UNIDROIT 2016 – C.D. (95) 15.
In accordance with the Governing Council’s authorisation, the Secretariat prepared and published the new edition of the Principles in May 2017, and it is available here.