Methodology of Uniform Contract Law (eBook)

Foreword 5
Preface 9
Acknowledgements 10
Contents – Summary 11
Contents – Outline 12
List of Abbreviations 18
Table of Cases 20
Table of German Cases 22
Introduction 24
1 Modern developments 24
2 Research questions and structure of the book 24
3 The subject matter: Transnational uniform contract law 25
Part 1 General aspects of uniform private law: Jurisprudential categories and purpose 28
1 Diversity in the law 30
1.1 Sovereignty of states and the role of private law 30
1.2 Distinctiveness of substantive contract law of distinct sovereign states 44
1.3 Party autonomy: How autonomous is the individual? 51
1.4 Conclusion 56
2 Unity through uniform private law 58
2.1 Why uniformity? 59
2.2 What uniformity? 63
2.3 Conclusion 78
Conclusion (Part 1) 79
Part 2 Methods of applying uniform private law within domestic legal systems 80
Introduction 80
3 Performance of payment obligations in the UPICC 82
3.1 Starting point: Article 7.2.1 UPICC and scholarly critique 82
3.2 Towards a methodology of transnational contract law: Doctrinal foundations 84
3.3 Scope of the payment rule in Art 7.2.1 UPICC 87
3.4 Conclusion 92
4 Exemplary application of the UPICC in the context of English law 94
4.1 Compatibility of the UPICC with English law 94
4.2 Scope of employer’s rights under construction contracts under English law 104
4.3 Conclusion 114
5 Exemplary application of the UPICC in the context of German law 115
5.1 Payment obligations in building contracts under German law 116
5.2 Compatibility of the solution provided by the UPICC with German law 134
5.3 Specific performance in German law: The civil law position 136
5.4 Conclusion 145
Conclusion (Part 2) 147
Part 3 The UNIDROIT principles in the conflict of laws 148
Introduction 148
6 Status quo of transnational law in the conflict of laws 149
6.1 Choice of law under English and German law – and the Rome Convention 149
6.2 Current use of the UPICC: Experience in practice 155
6.3 Consequences under the prevailing view regarding the UPICC as governing law 161
6.4 Conclusion 166
7 Methods of integration in the general conflict of laws 167
7.1 Review of the current discussion regarding the status of transnational law 167
7.2 Arbitration awards as source of law: ICC case No 7110 171
7.3 Reconciliation of UPICC with domestic conflict of laws 182
7.4 Conclusion 186
8 Methods of integration through commercial arbitration 188
8.1 Choice of law in commercial arbitration 189
8.2 Challenging awards based on a-national law under domestic arbitration law 197
8.3 The desirable standard in the law of arbitration: Discussion 218
8.5 Conclusion 227
9 Conclusion 229
Bibliography 233