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INTERNATIONAL TRADE - Unidroit study: Issues relating to Long-Term Contracts

the Villa Aldobrandini in Rome

The Unidroit Principles 2010 cover virtually all the most important topics of general contract law (see above).

However, while the Unidroit Principles, whose main source of inspiration was the United Nations Convention on Contracts for the International Sale of Goods (CISG), can undoubtedly be considered a sort of “general part” of international sales law and other contracts to be performed at one time, it remains to be seen to what extent they provide adequate solutions also for contracts to be performed over a period of time, or so-called long-term contracts. In fact, while the Unidroit Principles as they now stand already contain a number of provisions particularly suited to the special needs of this latter type of contract, there are still issues requiring further consideration which could be the subject of additional provisions or explanations in the comments.

For instance, Article 2.1.15, which sets out in general terms the parties’ duty to negotiate in good faith (or, more precisely, not to negotiate in bad faith), may need additional specification with respect to long-term contracts involving (re-)negotiation of specific terms in certain circumstances. Likewise, since long-term contracts typically evolve as a result of a change in circumstances, so that the parties’ obligations cannot be fully determined in advance, Article 5.1.1, which provides that the parties’ obligations are not limited to those expressly stipulated in the contract but may also be implied, may require further elaboration. The same is true of Article 5.1.3 which states in general terms the parties’ duty of co-operation, which is particularly relevant in the context of long-term contracts. Even more important, the Unidroit Principles do not address the question as to whether, and if so, to what extent, parties to long-term contracts in general and to so-called “relational” contracts in particular, are entitled, even in the absence of any special provision to this effect in the contract, to terminate their contract for irreparable breakdown of their mutual trust and confidence (so-called “termination for just cause”). This topic was chosen by the Governing Council in 2005 for inclusion in the third edition of the Unidroit Principles, then about to be prepared, but after a first reading of the respective draft chapter, the Working Group decided not to continue work on the topic but to take it up in another context at some time in the future.

At its 92nd session in May 2013, the Governing Council was seized of a Memorandum prepared by the Secretariat concerning possible future work on long-term contracts in general, and investment contracts in particular.  The Governing Council expressed its appreciation for the Secretariat’s Memorandum which provided a useful basis for further examination of the topic of long-term contracts in general, and investment contracts in particular. However, at this early stage the Council´s discussion had focused on the general questions as to whether the topic should be included in the Institute’s Work Programme 2014-2016 and, if so, what approach should be adopted in carrying out the work. 

In view of the different views expressed, the Governing Council finally agreed to postpone the decision on the approach to be taken until the scope of the work to be carried out had been better defined and invited the Secretariat to undertake preliminary in-house steps to identify the issues related to investment and other long-term contracts not adequately addressed in the 2010 edition of the UNIDROIT Principles of International Commercial Contracts.

Following this decision the Secretariat undertook an inquiry among the members and observers of the Working Group that had prepared the 2010 edition of the UNIDROIT Principles, as well as among other experts who over the years had shown particular interest in the Principles, soliciting comments and suggestions as to the proposed work on long-term contracts in general, and investment contracts in particular. The Secretariat submitted the results of its inquiry to the Council. 

The Governing Council instructed the Secretariat to set up a restricted Working Group for the purpose of formulating specific proposals for appropriate amendments and additions to the current black-letter rules and comments of the UNIDROIT Principles of International Commercial Contracts 2010. The first meeting of the Working Group was held from 19 to 22 January, 2015.

- Draft Agenda (UNIDROIT 2014 - Study L - Misc. 2 Rev.)

- The UNIDROIT Principles of International Commercial Contracts and Long-Term Contracts (UNIDROIT 2014 - Study L Doc. 126)

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