At first sight, discussing the relationship between soft law and party autonomy may not appear problematic. If “soft law” is understood as generally referring to instruments of a normative nature with no legally binding force and which are applied only through voluntary acceptance, it follows that in the field of contract law, party autonomy is the very raison d’Otre and limit of soft law. Standard terms and model clauses, definitions of trade terms, such as the INCOTERMS, and uniform “customs and practices,” such as the Uniform Customs and Practices relating to Documentary Credits (“UCP”), are binding only if expressly or implicitly agreed upon by the parties and to the extent that they do not contrast with the principles and rules of the applicable law from which parties may not derogate.
Yet, what is true of traditional soft law products applies only in part to a new type of soft law instrument that has recently emerged, such as the UNIDROIT Principles of International Commercial Contracts (“UNIDROIT Principles”) and the Principles of European Contract Law (“European Principles”).
The characteristic feature of the latter instruments is that they are not limited in scope to a particular type of transaction (e.g., supply of machinery, trade of commodities, construction contracts) or to specific aspects thereof (e.g., delivery terms, modes of payment), but provide a comprehensive set of rules relating to contracts in general, which is comparable to the general part of contract law found in domestic laws. Hence, a number of new questions which have not come up with respect to other soft law products have arisen and are worth being analyzed in more detail.
Cite this article:
Garima Srivastava. Party Autonomy and Unidroit. Research J. Humanities and Social Sciences. 5(4): October-December, 2014, 412-419.