What is UNIDROIT?
The International Institute for the Unification of Private Law (UNIDROIT) is an independent international organization established in Rome. Its purpose is to examine the needs and methods required to modernize, harmonize and coordinate the law between states, especially commercial law, and to regulate uniform principles and rules to achieve these goals.
There are 63 countries that are members of UNIDROIT. UNIDROIT has a three-tier structure consisting of a Secretariat, a Board of Directors and a General Assembly.
There are four UNIDROIT Principles issued by UNIDROIT to date.
Features of the UNIDROIT Principles
UNIDROIT's main legal objective is to prepare harmonized uniform rules of private law. Uniform rules prepared by UNIDROIT are about the unification of substantive law rules.
- Being of General Quality
UNIDROIT Principles are a set of general rules that create an equal and fair situation for the parties to be applied to commercial contracts and comply with the requirements of international commercial relations. It is not rules prepared for a single contract, but covers all contract law.
- Based on the Will of the Parties
The UNIDROIT Principles are based on the will of the parties. It is sufficient for the parties to indicate the application of these principles in the contract. The provisions set out in the principles can be freely decided by the parties except goodwill, non-abuse of right and lesion provisions.
- Being Related to International Conventions
The UNIDROIT Principles are specific to international conventions. The reason for this is that the contract provisions regulated by national law cannot fully meet the contracts with foreign elements. The application of the UNIDROIT Principles to contracts with a foreign element gives the parties greater freedom of will.
- Being Related to Commercial Contracts
The UNIDROIT Principles are particularly applied in international relations between merchants or contracts that qualify as commercial work. However, the term commercial relationship needs to be interpreted broadly. Accordingly, it can also be applied to professional services with investment and/or concession agreements. It cannot be applied to consumer contracts.
Scope of the UNIDROIT Principles
UNIDROIT Principles 2016 consisted of 11 chapters. If we list the provisions in these sections;
Section 1: In this section, which includes a preliminary article, the freedom to contract, the form of the contract, the binding nature of the contract, the mandatory rules, the parties to depart from these rules and make changes in these rules, the interpretation of the principles and filling the gaps, goodwill, practices and practices, communiqués and definitions are governed.
Section 2: This section contains provisions regarding the establishment of the contract. Especially; issues such as the establishment of the contract, requisition, acceptance, written confirmation, contract subject to principal or formal agreement, negotiations made in bad faith, keeping the contract confidential, contradiction between standard provisions and non-standard provisions, inconsistency on type articles are regulated. At the same time, the authority of the representatives was mentioned.
Section 3: This section discusses the validity of the Agreement. In this context; matters not addressed in the contract, initial impossibility, definition of error, cancellation due to error, error in expression and communication, fraud, threat, excessive use, periods, partial cancellation, retrospective effect of cancellation, compensation, mandatory nature of provisions, unilateral declarations, mandatory rules There are provisions applicable to infringing contracts.
Section 4: The provisions in this section are assigned to the interpretation rules. Interpretation of the parties' intentions, statements and behaviors, conditions and conditions suitable for interpretation, reference to the contract, beneficial interpretation, adverse interpretation rule, language contradictions, substitution of the absent term were among these provisions.
Section 5: This section contains provisions regarding the scope of the Agreement and the rights of the third party. Explicit and implicit obligations in the contract, the duty of cooperation between the parties, the final debt or vehicle debt, the determination of the type of debt, the determination of the quality of the performance, the price determination, the provisions regarding the contract with an unknown duration are included. At the same time, this section includes that the contracts made for the benefit of the third party, the withdrawal of the third party's right or the waiver of the third party.
Section 6: It contains rules regarding fulfillment. In this context; The provisions such as time of fulfillment, fulfillment at once, partial fulfillment, fulfillment order, early fulfillment, place of fulfillment, cost of fulfillment, offsetting of payments, offsetting non-monetary debts, pledge loyalty, over fulfillment are in this section.
Section 7: This section, which covers the provisions of non- fulfillment, includes regulations such as the definition of non- fulfillment postponement of fulfillment, additional time for fulfillment, and exemption provisions. In the subtitle of fulfillment; It includes provisions such as fulfillment in money debt, execution of non-monetary debt, correction and replacement of defective p fulfillment, legal penalty, change of remedy. In another subtitle; the provisions regarding the termination of the contract are included. In the subtitle of compensation; The right to compensation, full compensation, certainty of the damage, predictability of the damage, reduction of the loss, delay interest to be applied in case of not paying money debts, compensation calculation money, compensation provisions determined by the contract are available.
Section 8: In this section, where the clearing provisions are regulated, the conditions of the clearing, the exchange with different currencies, the clearing by notification are regulated.
Section 9: The provisions in this section are examined under three separate headings.
The transfer of rights section includes the transfer of monetary and non-monetary rights, partial transfer, future rights, prohibition of transfer, transfers one after another, rights regarding the transferred right and the guarantees of the transferor.
The debt transfer section has regulated the types of transfers, third party execution, and rights related to the debt transferred.
In the last part, the transfer of contracts was mentioned.
Section 10: This section contains regulations about the statute of limitations. Accordingly, the statute of limitations has been shown, the suspension of the statute of limitations in the proceedings and the arbitration proceedings, the right of return, the right of exchange, limitations in force majeure, death and incompetence is regulated.
Section 11: The rights of the joint creditor and the debtor, the effect of court decisions and the sharing provisions are regulated in this section, which refers to the joint debtor and the creditor.
What Happens If UNIDROIT Principles Contrary to Local Law?
If the UNIDROIT Principles are against local law, local law provisions, not the UNIDROIT Principles, apply. However, if the parties agree that disputes arising from their contracts will be resolved in accordance with the UNIDROIT Principles, the UNIDROIT Principles are applied first. However, even in this case, the UNIDROIT Principles should not contradict the international public order and the mandatory provisions of the country.
Conclusion
The UNIDROIT Principles on International Trade Agreements, adopted in Rome in 1994, have been applied for a long time in international commercial arbitration. The UNIDROIT Principles reflect the nature and content of legal concepts and institutions in important legal systems around the world. For this reason, it is chosen as a solution method in disputes arising in international commercial contracts.