The interpretation and gap filling in international commercial contracts in the light of the CISG, UNIDROIT principles, PECL, DCFR and related case-law
9 November 2017
Universiteit Antwerpen, Stadscampus - Promotiezaal Grauwzusters - Lange Sint-Annastraat 7 - 2000 Antwerpen (route: UAntwerpen, Stadscampus
5:00 PM - 7:00 PM
Ayse Nihan Karadayi
Matthias Storme (Faculteit Rechten)
PhD defence Ayse Nihan Karadayi - Faculty of Law
This thesis examines contract interpretation and gap filling problems in the context of international commercial contracts in the light of the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG), the UNIDROIT Principles of International Commercial Contracts (PICC), the Principles of the European Contract Law (PECL), the Draft Common Frame of Reference (DCFR) and related case-law. It is placed in a particularly difficult context as the international character of the contract increases the risks of divergences on meanings attributed to the same wording by the parties whose legal and linguistic backgrounds are generally different. Moreover, the commercial character of the contract adds additional concerns such as efficiency and predictability in commercial relations.
The research approaches the subject from three main aspects: First, it focuses on the issues related with language as it constitutes the main tool to be used when it comes to ascertain the meaning of the contract. Second, it tries to explain the notion of "party intent" and interpretative methods which stem from different understandings of this notion as contract interpretation cannot only be described as a linguistic effort as it aims above all to discover the rights and obligations created by the parties. Third, "fairness" issues are treated as the good faith and fair dealing principle has an important content in contract interpretation and can also alter contractual meaning as an overriding principle.
In the light of these three pillars of contract interpretation and taking efficiency concerns and the law and economics approach into account, the thesis tries to explain the rules on interpretation contained in the CISG, PICC, PECL and DCFR.
Furthermore, again in the light of different interpretative methods and the law and economics approach, it examines the gap filling mechanisms provided by these instruments as it is not possible in real life for the parties of a contract to predict all contingencies at the time of contracting and provide for them. In this context, the notions of force majeure and hardship are also addressed as they also constitute consequences of a lack of foresight at the time of contracting.
Finally, related case-law is presented in order to better understand the concrete applications of the rules contained in CISG, PICC, PECL and DCFR.
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