Abstract The Model Law on Electronic Transferable Records (2017) enabled the use and transfer of electronic and digital trade documents across borders. This Model Law influenced the enactment of the 2023 Electronic Trade Documents Act (ETDA) in the United Kingdom, which is a pioneer in this regard. In implementing the Model Law, however, the UK Parliament used permissive wording and allowed significant discretion regarding the assessment of the reliability, integrity, and recognition of electronic trade documents. This has caused significant legal uncertainty that parties can deploy when they try to avoid foreign obligations. The defence of public policy is one way by which parties can try to frustrate the efficient circulation of electronic trade documents. Although English courts apply public policy within a narrow scope, they usually need to hear such applications and determine them, which can be burdensome. This article critically examines relevant provisions of the ETDA vis-à-vis the evolving technology and the lack of guidance apart from factors that the courts may consider. Detailed analysis is then provided to show how courts can circumvent or mitigate the legal uncertainty by using public policy in a positive manner. This involves a consideration of relevant policies underpinning electronic trade documents. A major argument is that there is ample scope to apply English public policy in a way that promotes the circulation of ETDs. This argument is then complemented by an examination of how mandatory rules can serve as a basis to further determine what could be saved from the foreign law, considering the vague criteria in section 2(5) of the ETDA.

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 This article addresses the concept of fundamental non-performance in light of the Unidroit Principles of International Commercial Contracts and the Arab civil codes. A comparison is made with the criteria drawn up in the Principles for the purpose of exploring the aspects of harmony among the rules of jurisdiction compared. Despite the significant similarities, the notion of fundamental non-performance articulated in the Unidroit Principles is distinct and represents a fair model and reasonable guidance for national legislature and judiciary.

Abstract Trade usages are a pivotal building block in international commercial law. Besides serving as a useful tool to aid interpretation of commercial contracts, trade usages, depending on the applicable laws and rules, are frequently deemed binding on the parties, even in the absence of the parties’ knowledge or awareness. The normative value that tends to be assigned to trade usages is justified on various grounds, including that the community of traders, and not the legislator(s), is in the best position to formulate the most efficient rules to govern the traders’ transactions. Nevertheless, trade usages have been exposed to various forms of criticism, including that, in practice, their existence is difficult to prove and that courts and arbitral tribunals have been willing to accept the existence of trade usages based on flimsy evidence. This article first explores the very concept of trade usages, focusing on the following questions: (i) how are trade usages defined, if at all; (ii) what is the theoretical foundation of trade usages; (iii) what justifies assigning normative value to trade usages; and (iv) what are the critiques directed towards trade usages? Second, the article explores the possibility of relying on artificial intelligence technology in order to maximize the efficiency of usages of international trade.

Abstract This article aims to explore the emergence of blockchain arbitration and the legal challenges it poses from a private international law perspective. It examines the legal implications of this new type of arbitration and its feasibility under international regulatory frameworks (including the European Union, the USA, and the 1958 New York Convention), and it assesses leading decentralized justice platforms such as Kleros, Aragon, and Jur. The study highlights the fundamental differences between blockchain arbitration and traditional arbitration, identifying challenges such as the absence of a seat, the anonymity of parties and arbitrators, and the tension between decentralization and legal oversight. Finally, it explores future trends and proposes recommendations to adapt existing regulatory frameworks, concluding that, while blockchain arbitration will not replace classical arbitration in the short term, it could establish itself as a valuable complement to resolve disputes in the global digital economy.

Abstract The New York Convention provides for cases in which recognition and enforcement of a foreign award may be refused in a country. However, this Convention is silent on the question of whether the courts of that country may reconsider the dispute after the refusal of exequatur. This study shows that there is no prohibition against such reconsideration and that there are various reasons in favor of their jurisdiction.

Abstract Cet article voudrait montrer les difficultés que nous avons rencontrées en passant d’une langue à l’autre et d’une loi à l’autre au cours des cinq années d’élaboration des règles de procédure civile européenne ELI-Unidroit, à travers cinq questions: comment traduire, littéralement ou dans l’esprit ? ; comment résoudre les questions générales de légistique ? ; quand décider qu’un mot est intraduisible ? ; comment procéder lorsqu’il y a un mot dans une langue mais plusieurs dans une autre ? ; et que faire lorsque le même mot présent dans les deux langues a un champ d’application différent ? L’anglais était la langue de travail, mais le français, en tant que deuxième langue, améliorait la version anglaise, et vice versa. Le philosophe Walter Benjamin estimait que la vérité de la traduction ne se trouvait ni dans la langue cible, ni dans la langue originale, mais quelque part entre les deux. On pourrait extrapoler cette affirmation à la traduction juridique, qui consiste certes d’abord à donner le même effet obligatoire à une norme originaire dans une langue cible, mais qui implique ensuite et plus profondément un sens et un effet obligatoire entre deux langues de travail. This paper would like to show the difficulties encountered in moving from one language to another and from one law to another over the five years of drafting the ELI-Unidroit Model Rules of European Civil Procedure, through five questions: how to translate, literally or in spirit ?; how to resolve general questions of legislative drafting ?; when to decide that a word is untranslatable ?; how to proceed when there is one word in one language but several in another ?; and what to do when the same word present in the two languages has a different scope ? English was the working language; but French, as a second language, improved the English version, and vice versa. The philosopher Walter Benjamin believed that the truth of translation lay neither in the target language nor in the original language, but somewhere in between. We could extrapolate this statement to legal translation, which certainly consists firstly in giving the same obligatory effect to an original norm in a target language, but which secondly, and more profoundly, implies a meaning and an obligatory effect in-between two working languages.

Abstract The ELI–Unidroit Model European Rules of Civil Procedure do not ignore the extensive and increasingly relevant role of technology in civil procedure and even acknowledge the potential role of AI in civil justice. Nonetheless, it was decided not to include special provisions dealing with the use of AI in, and for decision-making in, the civil justice system. Despite the absence of rules, several questions were raised on the use of AI in judicial decisions and left unanswered. Now, the scenario in which the ELI–Unidroit Rules can be applied is largely different, being densely populated by an increasing number of principles, self-governance instruments, legislative actions of varying character and scope, regulations, and international harmonizing instruments. This article dives into this current context and identifies several selected solutions to the problems raised and not solved in the ELI–Unidroit Rules. The article is exclusively focused on two sets of rules: on the one hand, those addressing automated decision-making; and on the other hand, those governing the use of AI systems classified as high risk on the basis of their intended application for the administration of justice.

Abstract In this article, the author discusses the challenges encountered during the translation of the European Law Institute/Unidroit Model European Rules of Civil Procedure into Spanish. This prompts some reflections on the connection between law and language, concluding that any legal translation constitutes an exercise in comparative law.

Abstract Harmonizing civil procedure across different legal systems is a complex challenge. The European Law Institute (ELI) – International Institute for the Unification of Private Law (Unidroit) project, From Transnational Principles to European Rules of Civil Procedure, demonstrates that meaningful convergence is best achieved not through mandatory rules but through the voluntary adoption of well-designed procedural models. Genuine procedural convergence does not entail merely copying isolated legal rules but, rather, embracing a common procedural model rooted in a shared legal ideology. This shared foundation is best established through a unified approach to procedural principles. This article examines the constellation of procedural principles developed by the Obligations Working Group of the ELI–Unidroit project, which positions the principle of loyal cooperation as the overarching procedural principle. This principle underscores the joint and shared obligations of all participants in civil litigation—courts, parties, and lawyers—to collaborate in ensuring a fair, efficient, and accessible dispute resolution process. Other procedural principles function either as clarifications of this core principle’s goals and values or as methods and tools for achieving them. To illustrate how this common understanding fosters convergence, the article analyses Croatia’s recent procedural reforms, which reflect the ELI–Unidroit’s approach to procedural principles. Examples of converging norms include the redrafting of the principle of loyal cooperation in Article 10 of the Croatian Code of Civil Procedure and the introduction of a pre-procedural obligation to attempt settlement in the new Act on Amicable Dispute Resolution. Additionally, the 2022 Code of Civil Procedure amendments incorporated a modernized approach to illegally obtained evidence, aligning with the principle of proportionality and Rule 90 of the ELI–Unidroit Rules.