On The Nature And Application Of Principles Of International Commercial Contracts

In May 1994 the Governing Council of UNIDROIT adopted the UNIDORIT Principles of International Commercial Contracts (PICC),and the new edition of PICC was unanimously approved by Governing Council in April 2004. As an another important document of the International Unification of Contract Law after United Nations Convention on the International Sale of Goods (CISG) in 1980, PICC2004 is modern, widely representative, authoritative and practical. PICC2004 receives high praise, and so be placed on a very important position, it is foreseeable that the new edition of PICC would be the new development of the uniform of the international commercial law. But now, there are demarcations about the nature of PICC, and this influences the application directly. That is just the main thread of the thesis.At present, the PICC is regarded as an international trade usages, a model law, an applicable law or an international restatement of general principles of contract law. All of these theories determine the nature of PICC from only one aspect, and this is hard to avoid two problems: one is that every theory puts emphasis on a certain function of PICC, and ignores other functions, even ignores other more important functions; the other problem is that all the theories above believe that different countries have the same emphases in determining the nature of PICC, this neglects the background of different country in a certain extent. So, we should take four factors at lest into account: first, although PICC dose not have legal sanction,it still has strong authority and persuasion; second, PICC is not a simple gatheration of contract laws from different countries, it is a kind of conformity and development of commercial laws; third, PICC is not only a generic law, but a excellent law; fourth, PICC is not the final document, so that UNIDROIT can perfect it in any time according to praxis. Thereby,in my opinion, we had better hold a more multidimensional angle of view. However, the meaning of the application of PICC is not the same when determining the nature of PICC in different dimensionalities, it bases on circumstances. Being enslaved by my knowledge about the circumstance of the nation and the justiciary practice, I emphasize on two natures of PICC, as an applicable law and as a model law. And I limit the"application"in two aspects, one is the application of PICC in judging and umpiring activities, I discuss PICC as a applicable law, the other is using PICC for reference in legislation.In the second part, I discuss the application of PICC as an applicable law and as a model law in four aspects: the conditions, the principles, the cases and the limits. To ensure that we can master the application as a whole, I also mention the other aspects of the application of PICC. As the applicable law, the conditions of application are: international, commercial, and there is conflict rules which can direct PICC. The basic principles of the application are the doctrine of autonomy of the parties, the doctrine of the most significant relationship, the doctrine of convenience. The cases are (1)when the parties have agreed that their contract be governed by PICC;(2)when the parties have agreed that their contract be governed by general principles of law, the lex mercatoria or the like;(3)when the parties have not chosen any law to govern their contract;(4)to interpret or supplement international uniform law instruments;(5)serve as a model for national legislation. In terms of the limits, I mainly refer reservation of public order.In the third part, I focus on discussing the application of PICC in China. I think we can analyses this issue from three aspects: the application of PICC in Chinese foreign-related judgment; the application of PICC in Chinese legislation, as a model law; the limits of the application of PICC in China. As for the application of PICC in Chinese judgment, I believe it should include four ways at lest. The ways are PICC can be applied as the applicable law as a result of the doctrine of autonomy of the parties or the doctrine of the most significant relationship, be applied in ascertaining of foreign law, be applied to interpret and supplement international law instruments. Referring to the influence of PICC as a model law to Chinese legislation, Chinese Contract Law should use it for reference. As for the limits of the application of PICC in China, I would like to talk about reservation of public order .I consider that China has taken a position that neither better for parties to have a reasonable anticipation, nor for them enhance their competitive abilities in international market. So, we need improve on the Chinese reservation of public order, in order to accommodate the economical globalization.