UNIDROIT

Abstract The Unidroit Principles of International Commercial Contracts (UPICC) is one of the most successful instruments in the world. One relevant feature is their hardship model. It has been followed by other international instruments such as the Principles of European Contract Law and the Draft Common Frame of Reference and has even been incorporated into various Civil Codes over the years (Argentina, France, China, and Belgium). While it is an indisputable success story, what needs to be analysed now is whether this success will continue in the future. Therefore, this article focuses on highlighting the achievements of the UPICC hardship model—such as the use of the term ‘hardship’, the conditions for hardship, its incorporation into various Civil Codes, and the possibility of agreeing otherwise—but it also underlines the aspects that need to be improved in a future revision of the UPICC, such as limiting it to supervening events, adding the condition of ‘to have avoided or overcome it’, solving problems with renegotiation and adaptation, and limiting the legitimacy to claim. This reassessment is necessary for the UPICC to remain up to date with the changing needs of international trade and thus continue this success story in relation to the UPICC hardship model.

Abstract The International Institute for the Unification of Private Law’s (Unidroit) Principles of International Commercial Contracts (UPICC) provide a uniform international instrument setting out general rules for international commercial contracts as an alternative to the State law-centred approach to contracting and dispute resolution. While the UPICC are well known among academics and frequently referred to in practice in many regions of the world including Europe, Latin America, and Asia, they are applied far less often in the Middle East and North Africa (MENA). This is in spite of the fact that their use appears to be widely permissible under MENA States’ domestic legislation, and international trade involvement provides opportunities for them to be applied productively. The reasons for less usage in the MENA region are manifold and include, among others, a judicial tendency to apply domestic law, the hierarchy between the Islamic Sharia and lex mercatoria, the limited involvement of experts from the MENA region in the elaboration of the UPICC and their subsequent promotion, and limited linguistic accessibility. Potential advantages of greater usage include the promotion of fair and harmonized contract practices and facilitating the resolution of cross-border private legal conflicts as well as the UPICC’s use as a model and reference for modernization and harmonization of contract law across the region and beyond. This article examines the use of the UPICC in MENA and the potential for facilitating their future impact in the region, focusing on Arab jurisdictions influenced by Islamic law.

Abstract Political boundaries are often porous to finance, financial intermediation, and financial distress. Yet they are highly impervious to financial regulation. When inhabitants of a country suffering a deficit of purchasing power are able to access funds flowing in from a country with a surfeit of such power, the inhabitants of both countries may benefit. They may also benefit when institutions undertaking such cross-border intermediation experience economies of scale and are able to innovate and to offer funds and services at lower costs. Inevitably, however, at least some such institutions will sometimes suffer distress in one country and may then transmit such distress to other countries in which it operates. The efficacy of any response to such cross-border transmission of distress may turn on the response being given due effect in both (or all) the territories in which the distressed financial institution operates. This situation creates a conundrum for policymakers, legislators, and regulators who wish to enable those subject to their jurisdiction to access the benefits of cross-border financial intermediation, yet cannot make rules and regulations that would have effect outside that jurisdiction. This book explores this conundrum and offers a response. It advocates for the creation of a model law that would address the full range of financial institutions, and that would enable relevant authorities to cooperate with counterparts in advance of the onset of distress and to give appropriate effect in their jurisdiction to measures taken by counterpart authorities in other jurisdictions in which the distressed institution also operates.

A fundamental challenge in international water law is reconciling the sovereignty of one state with regard to the use of transboundary water resources within its territory on the one hand, and the territorial integrity of co-riparian states on the other. At its core, this conflict concerns the extent of the restrictions on riparian states regarding the utilization of shared watercourses under international law. This chapter provides an overview of the development and theoretical bases of international water law. At the beginning of the twentieth century, the rules governing the non-navigational uses of transboundary watercourses were still unclear and highly controversial, and the general discourse on the matter was dominated by the two opposing theories of absolute territorial sovereignty and absolute territorial integrity. A balance between these opposing views was eventually found in the theory of limited territorial sovereignty. Current international water law is based on the theories of limited territorial sovereignty and the community of interest, from which the rights and obligations of the riparian states of shared watercourses are derived.

Ever-increasing water scarcity in the Nile Basin requires the riparian states to agree on a permanent form of cooperation and find better means of managing and utilizing the Nile’s water. Accordingly, in 1997 they began negotiations on the Cooperative Framework Agreement aiming to conclude a comprehensive basin-wide treaty on the Nile and to establish a Nile Basin commission as a permanent cooperation vehicle. The Nile Council of Ministers adopted the Agreement in 2009 despite Egyptian-Sudanese protest, although the riparian states were unable to reach consensus on core issues. This chapter examines the Agreement’s drafting process and discusses its provisions and remaining controversial issues, before recommending amendments to its text. While the Agreement adopted key provisions verbatim from the 1997 United Nations Watercourses Convention, and overall provides a sound basis for the joint management and use of the Nile, some amendments would be necessary to reconcile the interests of all the riparian states and align the Agreement with international water law principles. In particular, it is argued that the current Article 14 on water security should be removed from the Agreement, and the use allocation should be guided by the principle of equitable and reasonable utilization without granting current de-facto use levels protected status. Equally important, the Agreement should include an obligation of prior notification for planned measures, together with detailed provisions on the notification procedure.

This article presents the provisions on contract validity in the Unidroit Principles of International Commercial Contracts (PICC) and studies their potential interaction with the United Nations Convention on Contracts for the International Sale of Goods (CISG). After a brief history of the PICC rules on validity, it examines the provisions contained in Chapter 3, sections 1, 2, and 3, of the PICC, namely general provisions; grounds for avoidance; and illegality, in both theory and practice. Finally, this work distinguishes validity issues under the PICC and the CISG in order to demonstrate the potential interplay between these two successful international instruments of uniform law.