Competitive markets

Developing neutral legal standards for international contracts

  • 4 November 2015

The main purpose of this study is to deal with the issue of the lex mercatoria and/or general principles of law as a contractual solution for the choice of the governing law which can be used when no agreement on a domestic law is possible or appropriate.

When choosing the applicable law, parties may wish to agree on neutral solutions, instead of submitting the contract to the domestic law of one of the parties. When this is the case they may opt for the law of a third country or they may decide to submit their contract to a-national rules of law, such as “principles of law generally recognized in international trade”, “Unidroit Principles on International Commercial Contracts”, or other transnational rules.

ICC has followed this second approach in several of its model contracts by providing optional choice-of-law clauses referring to “principles of law generally recognized in international trade” in conjunction with the Unidroit Principles.

The Task Force which has prepared this study has been created, within the ICC Commission on Commercial Law and Practice, with the purpose of exploring the pro’s and con’s of choice-of-law clauses based on general principles of law and the Unidroit Principles and of clarifying the practical use that can be made of such solution in order to construe choice of law clauses which may help parties to escape the rigid alternative between “my law” or “your law”.

The Task Force was chaired by Fabio Bortolotti (Italy) and Franco Silvano Toni di Cigoli (Italy) and has benefited from the active participation of the following Task Force members: Stefano Catelani (Switzerland), Bruce Collins (Australia), Gaby El Hakim (Bahrain), Richard Gwynne (UK), Philip Landolt (Switzerland), and Galyah NatanEpstein (Israel). ICC Secretariat oversight was provided by ICC Senior Policy Manager, Emily O’Connor (France).