The Unidroit whose headquarter located in Rome, Italy is an institution whose purpose is the unification/uniform of the state-owned legal systems in relation to private law. The aim of this institute is to create an equal, fair, balanced set of rules for use in the whole world.
Eventually, with the 63 member countries including Turkey, the institute has a highly respected position in the private law community. The Institute continues its work by publishing conventions, model laws, guidelines principles and guidelines intended for uniformity.
I. PURPOSE AND SCOPE
Purpose: An equal, fair and balanced integrity to be used all over the world by creating a uniform set of rules that will meet the needs of international commercial relations and be applicable to all commercial contracts.
Scope: It contains rules that can be applied to all international commercial contracts. In order for these principles to be applicable to an existing contract, two criteria must be found: Pertaining to international contracts and pertaining to commercial relationship
Content: Unidroit Principles consist of seven chapters. These chapters can be summarized as follows:
- Chapter: These articles are included: Freedom of contract, no form required, binding character of contract, exclusion or modification by the parties, interpretation and supplementation of the Principles, good faith and fair dealing, usages and practices, definitions.
- Chapter: Articles about the formation of the contract are included.
- Chapter: Articles about the legality of the contract are included.
- Chapter: Interpretation rules are included in this chapter.
- Chapter: Articles about the content of the contract are included.
- Chapter: Articles regarding the fulfillment of any obligation are included.
- Chapter: Non-performance of obligation is regulated in this chapter.
II. LEGAL NATURE
Although on this controversial topic some scholars suggest that the Unidroit Principles are restatement (collection), it should be accepted that the Unidroit Principles are included in Lex Mercatoira, given that the Unidroit Principles are a comparative study of the general principles of the contractual law consisted important sources of Lex Mercatoria.
III. CIRCUMSTANCES THAT UNIDROIT PRINCIPLES CAN BE APPLIED
In order for the Unidroit Principles to be applied to an international commercial contract, the parties shall agree on this subject. The Parties may agree that these provisions will be applied to the contracts in various ways: with an explicit clause in the mp0 with that Lex Mercatoria is the law to be applied in the event of any dispute arising out of a contract between them, by interpreting the legal system chosen if the legal system chosen by the parties is insufficient to resolve the dispute.
IV. RELATIONSHIP BETWEEN THE UNIDROIT PRINCIPLES AND APPLICABLE LOCAL LAW TO ARBITRATION
If the parties set forth that the dispute will be resolved by arbitration and at the same time refer to the Unidroit Principles; if there is a conflict between Local Law and Unidroit Principles; Local Law applies. Nevertheless, the parties can explicitly decide in case of such a conflict that the Unidroit Principles will be applied. However, even in this case, Unidroit Principles cannot be contrary to the international public order and the compulsory provisions of the country. At points where Local Law is silent, arbitral tribunal apply Unidroit Principles as a subsidiary rule.
V. SIMILARITIES AND DIFFERENCES WITH OLE LANDO PRINCIPLES
a- Similarities: Both of the texts aimed at providing a uniformity on the international platform, and included bona fine and good faith based provisions in their texts. In this respect,
it is possible to comment that both texts are close to the common law model.
b- Differences: While the Unidroit Principles are aimed at creating uniform law all over the world, Ole Lando Principles' application is limited only to the European Union countries. At the same time, although the Unidroit Principles pertain to international commercial disputes, the Ole Lando Principles are regulated to be applied to all contractual relations. Therefore, Ole Lando Principles are discussed in more detail. Unidroit Principles, however, are still applied in a much larger area than the Ole Lando Principles.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.