The UNIDROIT Principles of International Commercial

Contracts and the Principles of European Contract law:

Similar Rules for the Same Purposes?

Michael Joachim Bonell •

INTRODUCTION

The year 1994 marked a turning point for two remarkable projects in the field of
contract law. It was in that year that the Governing Council of the International
Institute for the Unification of Private Law (UNIDROIT) gave its impr'imatur to the
publication of the Principles of International Commercial Contracts (hereinafter
UNIDROIT Principles),l and the Commission on European Contract Law concluded
its work on the first part of the Principles of European Contract Law (hereinafter
European Principles).2
The UNIDROIT Principles have proved to be extremely successful. Barely two
years after publication over 3000 copies have been sold worldwide and - what is
even more significant - the great majority of orders of the Principles have come from
circles such as international law firms, corporate lawyers, chambers of commerce,
arbitration courts and the like, which are the kind of potential users to whom the
Principles are mainly addressed. Moreover, in addition to the five official versions
(English; French; German; Italian; Spanish) the text of the black letter rules of the
UNIDROIT Principles has also been translated into Arabic, Bulgarian, Chinese, Dutch,
Hungarian, Japanese, Serbian, Slovak and Russian. 3 Finally, and most important of all,
there are already reports of the first court decisions and arbitral awards referring to the
UNIDROIT Principles in one way or the other. 4
In the meantime the Commission on European Contract Law has embarked on
the preparation of the remaining chapters of the European Principles. Work is
expected to be concluded by the end of 1996 so that the complete version will be
publ ished in 1997 or, at the latest, in early 1998.

Professor of Law, University of Rome I "La Sapienza"; Legal Consultant, Unidroit.

0. International Institute for the Unification of Private Law, Principles of International Com-
mercial Contracts (Rome, 1994).
2 Cf. O. LANDO - H. BEALE (edsl. The Principles of European Contract Law, Part I: Performance,
Non-performance and Remedies (Dordrecht, 1995).
3 For the text in Arabic, Chinese, English, French, German, Italian, Russian and Spanish, see M.J.
BONELL, An International Restatement of Contract Law. The UNIDROIT Principles of International Com-
mercial Contracts, Irvington, N.Y., 1994, p.1S? et seq.
4 For a summary of five of these awards see M.J. BON ELL, Un "codice" internazionale del diritto
dei contratti. I Principi UNIDROIT dei Contratti Commerciali Internazionali, Milano, 1995, pp. 193-196.

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 Michaelloachim Bone/l

In recent years each of these sets of Principles has been the subject of a sub-
stantial body of legal writings dealing with them either in general or with respect to
specific topics they cover. 5 It now seems to be the right time to undertake a combined
analysis of the two instruments with a view to comparing their content, scope and
intended uses. 6 After a brief description of the origins and preparation (part I) and the
formal presentation (Part II) of the UNIDROIT Principles and the European Principles,
Part III is devoted to an identification of the similarities and divergencies between the
two instruments, with an attempt to distinguish policy differences from those of a
merely technical nature. Finally Part IV addresses the basic question of the relationship
between the UNIDROIT Principles and the European Principles, i.e. whether there is a
risk that they will compete with one another or whether they may co.-exist while
serving different purposes.

I. ORIGINS AND PREPARATION

7. The UNIDROIT Principles

It was in 1971 that the UNIDROIT Governing Council decided to include in the
Work Programme of the Institute what in the original French version of the resolution
was indicated as an "essai d'unification portant sur la partie genera Ie des contrats (en
vue d'une Codification progressive du droit des obligations 'ex contractu')".7 A small
Steering Committee, composed of Professors Rene David (University of Aix-en-
Provence), Clive M. Schmitthoff (City University of London) and Tu'dor Popescu (Uni-
versity of Bucharest), in representation of the civil law, the common law and the former
socialist systems, was set up with the task of making preliminary inquiries on the
feasibility of such a project. In a first report in 1974 the Steering Committee stressed the
great importance of the project and laid down in broad terms the structure it should
take. 8
However, due to other commitments of the Institute, the project - initially given
the somewhat misleading title of "Progressive Codification of International Trade Law"
- and only later renamed "Preparation of Principles for International Commercial
Contracts" - did not for some years enjoy priority status. 9

5 For an up-to-date bibliography on. the two instruments see M.J. BON ELL, Un 'codice', cit., pp.
410-417.
6 For a first comparison of this kind, limited however only to Part I of the European Principles, see
A.S. HARTKAMP, The UNIDROIT Principles for International Commercial Contracts and the Principles of
European Contract Law, in 2 European Review of Private Law (1994), pp. 341-357; R. ZIMMERMANN,
Konturen eines Europaischen Vertragsrecht, in juristenzeitung 1995, pp. 477-490.
7 cr. UNIDROIT 1971, CD. 50th Session, p. 93.
8 cr. UNIDROIT 1974, Study L - Doc.7.
9 For further details regarding the preliminary inquiries made at that time on the feasibility of such
a project, as well as regarding the first concrete plans of realisation elaborated by the Steering Committee,
see M.J. BON ELL, The UNIDROIT Initiative for the Progressive Codification of International Trade Law, 27
The International and Comparative Law Quarterly (1978), p. 413 et seq.

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 UNIDROIT Principles and European Principles: Similar Rules for the Same Purposes?

Only in 1980 was a special Working Group set up with the task of preparing the
various draft chapters of the Principles. The members of the Group, which included
representatives of all the major legal and socio-economic systems of the world, were
leading experts in the field of contract law and international trade law. Most of the
members were academics, some high ranking judges or civil servants, all sitting,
however, in a personal capacity and not expressing the views of their governments. 10
The Working Group appointed from among its members Rapporteurs for each of
the different chapters of the Principles. Their task consisted in preparing, after the
necessary comparative studies, a first draft together with comments.
As to the working method, it was obviously impossible to take into account the
law of every single country of the world, nor could every legal system have an equal
influence on each issue at stake. From among the national codifications or compilations
of law greater attention was naturally given to the most recent ones, such as the United
States Uniform Commercial Code and the Restatement (Second) of the Law of Contracts,
the Algerian Civil Code of 1975, the 1985 Foreign Economic ContraGt Law of the People's
Republic of China, the drafts of the new Dutch Civil Code and of the new Civil Code of
Quebec, which finally entered into force in 1992 and 1994 respectively. As far as inter-
national legislation is concerned, such an important and universally appl ied instrument as
the United Nations Convention on Contracts for the International Sale of Goods (C1SG)
was an obligatory point of reference. Whenever appropriate, account was taken also of
other international instruments prepared 'by UNCITRAL 11. Moreover special attention
was given to non-legislative instruments elaborated by professional bodies or trade
associations and widely used in international trade. 12
The preliminary drafts prepared by the Rapporteurs were discussed by the Group
as a whole at its twice yearly working sessions. After their second reading the drafts
were circulated among a wider group of experts, drawn from both academic and

10 The Group was composed of Patrick Brazil (Canberra); Paul-Andre Crepeau (Quebec); Samuel
K. Date-Bah (Accra); Adolfo Di Majo (Rome); Ulrich Drobnig (Hamburg); E. Allan Farnsworth (New York);
Marcel Fontaine (Louvain-Ia-Neuve); Michael P. Furmston (Bristol); Alejandro Garro (Buenos Aires); Arthur
S. Hartkamp (The Hague); Hisakazu Hirose (Tokyo); Huang Danhan (Beijing); Alexander S. Komarov
(Moscow); Ole Lando (Copenhagen); Dietrich Maskow (Berlin-Potsdam) and Denis Tallon (Paris).
The author had the honour of serving as Chairman of the Working Group. Secretary to the
Group was Lena Peters of the UNIDROIT Secretariat.
11 E.g. the UNCITRAL Legal Guide on Electronic Funds Transfer (1986), the UNCITRAL Model
Law on International Credit Transfers (1992), the UNCITRAL Legal Guides on Drawing Up International
Contracts for the Construction of Industrial Works (1988) and on International Countertrade Transactions
(1993), as well as the Convention on International Guarantee Letters (1995) and the draft Model Statutory
Provisions on the Legal Aspects of Electronic Data Interchange (EDI).
12 E.g. INCOTERMS, the Uniform Customs and Practice for Documentary Credits or the Force
Majeure (Exemption) Clause and the drafting suggestions concerning hardship provisions prepared by the
International Chamber of Commerce, the General Conditions for the Supply and Erection of Plant and
Machinery for Import and Export n. 188A (1953) and n. 574A (1955) of the United Nations Economic
Commission for Europe, the FIDIC Conditions of Contract for Works of Civil Engineering or for Electrical and
Mechanical Work or the UNIDO Model Form of Turnkey Lump Sum Contract for the Construction of a
Fertilizer Plant (1983).

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 Michael Joachim Bonell

business circles throughout the world for comments on the drafts. The drafts were also
periodically examined by the UNIDROIT Governing Council - the Institute's highest
scientific body - which offered its advice on the policy to be followed, especially in
those cases where the Working Group had found it difficult to reach a consensus. 13
Moreover, the drafts were submitted to the Governments of the 56 Member States of
the Institute for information. 14 The Working Group concluded the last reading of the
different draft chapters in February 1994, and in May of the same year the final text of
the UNIDROIT Principles was submitted to the Governing Council for approval.

2. The European ~rinciples

The origins and preparation of the European Principles were largely similar.
It was Ole Lando who in 1976, on the occasion of a symposium on "New Per-
spectives for a Common Law of Europe" held at the newly established European
University Institute, first launched the idea of embarking on the drafting of a European
Uniform Commercial Code or, if this proved to be too ambitious, at least a European
Restatement of Contract Law. 15
After informal discussions in Brussels, which resulted in a commitment by the
EEC Commission to provide some financial support for the project, the Commission
on European Contract Law - also known as the "Lando Commission" in honour of its
founder and chairman - was set up and began its actual work in 1982 16 . Like the
UNIDROIT Working Group, this Commission was composed of academics and practi-
tioners in their personal capacity. Unlike the former, however, which was composed
of experts from all the five continents, the membership of the latter was intentionally
restricted to lawyers from member States of the former European Community, now the
European Union. 17
Also the working method of the Commission very much resembled that of the
UNIDROIT Group. This is true not only with respect to the appointment of

13 From the beginning the Governing Council had been regularly informed of the state of the work
on the project. However. while the Council initially limited itself to acknowledging work in progress, as
from 1990 it examined in detail the contents of the single draft chapters as prepared by the Wprking Group
(Cf. UNIDROIT 1990; CD. 69 - Doc 24. pp. 9-33 (formation and validity); UNIDROIT 1991; CD. 70-
Doc. 22, pp. 9-37 (performance in general); UNIDROIT 1992; CD. 71 - Doc 18. pp. 4-23 (hardship, non-
performance in general, specific performance and termination; UNIDROIT 1993; CD. 72 - Doc. 18. pp. 5-
27 (damages and general provisions)).
14 The replies were in general extremely positive; see in particular the detailed observations of the
governments of Australia and Canada (UNIDROIT 1994, Study L - (WG)WP 3).
15 O. LANDO. Unfair Contract Clauses and a European Uniform Commercial Code, in M.
CAPPELLETTI (ed), New Perspectives for a Common Law of Europe (1978), p. 267 et seq. (pp. 284-288).
16 cr. O. LANDO - H. BEALE (eds), The Principles of European Contract Law, Part I: Performance,
Non-performance and Remedies (Dordrecht,19951, cit., Preface, pp. ix-x.
17 Thus the Commission was initially composed of members from Belgium, Denmark, France,
Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands and the United Kingdom; after 1987 also
from Portugal and Spain; and after 1995 also from Austria, Finland and Sweden.

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 UNIDROIT Principles and European Principles: Similar Rules for the Same Purposes?

Rapporteurs for the preparation of the preliminary drafts of the individual chapters, but
also to the sources of inspiration. Indeed, notwithstanding its mandate to prepare
Principles of European Contract Law, the Commission did not confine its sources to
the national laws of the member States of the European Union, but also drew on legal
materials from outside Europe, such as the American Restatements on Contract and
Restitution and conventions such as CISG 18.
Naturally the Commission on European Contract Law was from the outset aware
of the work being conducted by the UNIDROIT Group and vice-versa. 19 Moreover, as
the two groups were dealing with the individual chapters at different times, it was
inevitable that each group was influenced by the work of the other. While the
UNIDROIT Group started its work with the chapter on formation, followed by those
on interpretation, validity, performance and non-performance, the Commission took
these topics in the inverse order. Consequently each group, as it proceeded from one
topic to another, profited by having at its disposal the results of the other's work, at
least in the form of a preliminary draft.

II. STRUCTURE AND fORMAL PRESENTATION

1. The UNIDROIT Principles

The UNIDROIT Principles are composed of a Preamble and 119 articles divided
into seven chapters, namely "General Provisions" (Chapter 1); "Formation" (Chapter
2); "Val idity" (Chapter 3); "Interpretation" (Chapter 4); "Content" (Chapter 5);
"Performance" (Chapter 6) and "Non-Performance" (Chapter 7). Chapter 6 has two
sections dealing with "Performance in General" and "Hardship" respectively, while
Chapter 7 has four sections, namely one concerning "Non-Performance in General",
one on the "Right to Performance", one on "Termination", and one on "Damages".
There are provisions, such as that which lays down the principle of freedom of
contract 20 and the one dealing with the formation of the contract,21 which are very
concise and formulated in general terms, while others, such as the provision on the
currency of payment 22 or that on the right to cure,23 are on the contrary much more
detailed. In general the UNIDROIT Principles are drafted more in the style of the
European codes than in the notoriously more elaborate fashion typical of common law
statutes.

18 Cf. O. LANDO - H. BEALE (eds), The Principles of European Contract Law, Part I: Performance,
Non-performance and Remedies (Dordrecht, 1995), cit., Introduction, pp. xx.
19 The mutudl exchdnge of information was fdcilitated by the fact that a number of experts,
including the author, were members of both groups.
20 UNIDROIT Principles, Art. 1.1.
21 UNIDROIT Principles, Art. 2.1.
22 UNIDROIT Principles, Art. 6.1.9.
23 UNIDROIT Principles, Art. 7.1.4.

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Each article is accompanied by comments and, where appropriate, by factual

illustrations intended to explain the reasons for the black letter rule and the different
ways in which it may operate in practice.
As to their formal presentation, the UNIDROIT Principles deliberately seek to avoid
the use of terminology peculiar to any given legal system. The international character of
the Principles is also stressed by the fact that the comments on the black letter rules
systematically refrain from referring to national laws in order to explain the origin and
rationale of the solution retained. Only where the rule has been taken over more or less
literally from the world wide accepted CISG is explicit reference made to its source.

2. The European Principles

As already pointed out,. the European Principles are not yet ready in their com-
plete version. Only the chapters on general provisions, performance, non-performance
and remedies have been published while the chapters on formation, authority of
agents, validity, interpretation, contents and effects are still in draft form. Subject to
any deletions or additions which may be made when consolidating the different
provisions, it is expected that the complete version of the European Principles will
consist of some 134 articles divided into nine chapters, namely "General Provisions"
(Chapter 1); "Formation" (Chapter 2); "Authority of Agents" (Chapter 3); "Validity"
(Chapter 4); "Interpretation" (Chapter 5); "Contents and Effects" (Chapter 6); "Perform-
ance" (Chapter 7); "Non-Performance and Remedies in General" (Chapter 8) and
"Particular Remedies for Non-Performance" (Chapter 9).
There are striking similarities in the drafting style and the formal presentation of
the European Principles and the UNIDROIT Principles. The only significant difference
is that the former, in addition to the black letter rules and comments, contains notes to
the rules identifying the principal sources utilized and describing briefly the manner in
which the issue is dealt with in the various legal systems of the member States of the
European Union.
The absence of comparative notes in the UNIDROIT Principles has been criticised
on the ground that the indication of the national precedents for the solutions adopted in
the UNIDROIT Principles would have conferred on them greater authoritative
character. 24 However, in this respect it should be borne in mind that, as already pointed
out, it was inevitable in the preparation of the UNIDROIT Principles that the laws of
some countries played a more significant role than those of others: consequently it might
even have been counterproductive to highlight this fact by including comparative notes
in the official text of the Principles. On the other hand, notwithstanding the much more
restricted and homogeneous legal background of the European Principles, even their
comparative notes do not always provide adequate support for the solutions adopted.

24 Cf. K.P. BERGER, Die UNIDROIT-Prinzipien fur Internationale Handelsvertrage, in Zeitschrift

fUr Vergleichende Rechtswissenschaft 1995, p. 217 et seq. (p. 218).

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III. CONTENTS COMPARED

To indicate precisely the extent to which the contents of the UNIDROIT

Principles and the European Principles correspond or diverge is far from easy. A direct
article by article comparison is almost impossible, since there are issues which in one
instrument are dealt with in a single article while in the other in more than one article,
and because in both instruments there are single articles addressing several issues
which are dealt with in separate articles in the other instrument.

1. Corresponding provisions

Taking as a point of reference the UNIDROIT Principles, about seventy of their

articles have corresponding provisions in the European Principles.
Thus, with respect to the Preamble and the chapter on General Provisions, the pro-
visions of the UNIDROIT Principles which have either a literal counterpart in the Euro-
pean Principles, or at least with respect to which the latter contain basically the same
rules, are paragraphs 1 and 2 of the Preamble, Article 1.2 (No form required), Article
1.4 (Mandatory rules) and Article 1.5 (Exclusion or modification by the parties).25
In the chapter on formation this is true of Article 2.1 (Manner of formation),
Article 2.2 (Definition of offer), Article 2.4 (Revocation of offer), Article 2.5 (Rejection
of offer), Article 2.6 (Mode of acceptance), Article 2.7 (Time of acceptance), Article
2.9 (Late acceptance. Delay in transmission), Article 2.11 (Modified acceptance),
Article 2.13 (Conclusion of contract dependent on agreement on specific matters or in
a specific form), Article 2.15 (Negotiations in bad faith), Article 2.16 (Duty of
confidentiality) and Article 2.22 (Battle of forms).26
In the chapter on validity the same can be said of Article 3.2 (Validity of mere
agreement), Articles 3.4 (Definition of mistake) and 3.5 (Relevant mistake), Article 3.6
(Error in expression or transmission), Article 3.8 (Fraud), Article 3.9 (Threat), Article
3.10 (Gross disparity), Article 3.11 (Third persons), Article 3.12 (Confirmation), Article
3.13 (Loss of right to avoid), Article 3.14 (Notice of avoidance), Article 3.15 (Time
limits), Article 3.16 (Partial avoidance), Article 3.17 (Retroactive effect of avoidance),
Article 3.19 (Mandatory character of the provisions) and Article 3.20 (Unilateral
declirations).27
As concerns the chapters on interpretation and on content, provisions which are
also to be found in the European Principles are Article 4.1 (Intention of the parties),
Article 4.2 (Interpretation of statements and other conduct), Article 4.3 (Relevant
circumstances), Article 4.4 (Reference to contract or statement as a whole), Article 4.5

25 Cf. Arts. 1.101 (2)(3)(a), 2.101(2) and 1.102 of the European Principles, respectively.
26 cr. Arts. 2.211, 2.201(1), 2.202(1)(2), 2.203, 2.204, 2.206, 2.207, 2.208, 2.103(2), 2.301, 2.302
and 2.209 of the European Principles, respectively.
27 Cf. Arts. 2.101 (1 )(b), 4.103,4.104,4.107,4.108,4.109,4.111,4.114,4.105(1 )(2),4.112,4.113,
4.115, 4.116, 4.118 and 4.120 of the European Principles, respectively.

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(All terms to be given effect), Article 4.7 (Linguistic discrepancies), Article 5.3
(Cooperation between the parties), Article 5.6 (Determination of quality of
performance) and Article 5.8 (Contract for an indefinite period).28
In the chapter on performance this is true of Article 6.1.1 (Time of perfornance),
Article 6.1.4 (Order of performance), Article 6.1.5 (Earlier performance), Article 6.1.6
(Place of performance), Article 6.1.11 (Costs of performance), Articles 6.1.12
(Imputation of payments) and 6.1.13 (Imputation of non-monetary obligations) and
Articles 6.2.1 to 6.2.3 on hardship.29
Finally, with respect to the chapter on non-performance, this is the case of Article
7.1.1 (Non-performance defined), Article 7.1.2 (Interference by the other party), Article
7.1.3 (Withholding performance), Article 7.1.5 (Additional period for performance),
Article 7.2.1 (Performance of monetary obligation), Article 7.2.2 (Performance of non-
monetary obligations), Article 7.2.3 (Repair and replacement of defective per-
formance), Article 7.3.1 (Right to terminate the contract), Article 7.3.2 (Notice of
termination), Article 7.3.3 (Anticipatory non-performance), Article 7.3.4 (Adequate
assurance of due performance), Article 7.3.5(2)(3) (Effects of termination in general),
Article 7.4.1 (Right to damages), Article 7.4.2 (Full compensation), Article 7.4.3
(Certainty of harm), Article 7.4.5 (Proof of harm in case of replacement transaction),
Article 7.4.6 (Proof of harm by current price), Article 7.4.7 (Harm due in part to
aggrieved party), Article 7.4.8 (Mitigation of harm), Article 7.4.12 (Currency in which to
assess damages) and Article 7.4.13 (Agreed payment for non-performance).30

2. Divergencies

As concerns the divergencies between the two instruments, there are first of all
provisions in the UNIDROIT Principles which differ in content from their counterparts
in the European Principles. In addition, there are issues addressed in the former which
are not dealt with at all in the latter and vice-versa. While most of these divergencies
appear to be of a merely technical nature, some others are of a "policy" nature, i.e.
they clearly reflect the different scope of the two instruments.

(a) Divergencies of a technical nature

Examples of divergencies of a merely technical nature are the adoption by the

UNIDROIT Principles of the "receipt" rule with respect to all kinds of notices the
parties may exchange (Art. 1.9(2)), as opposed to the provision in the European
Principles of the "dispatch" rule with respect to notices prompted by the (actual or

28 cr. Arts. 5.101, 1.106, 5.103, 5.107, 5.108, 5.109, 1.202, 6.108 and 6.109 of the European Prin-
ciples, respectively.
29 cr. Arts. 7.102, 6.1 10, 7.103, 7.101, 6.111, 7.106 and 6.1 14 of the European Principles, res-
pectivel '
3O Cf. Arts. 1.301(4), 8.101(3), 9.20 I, 8.106, 9.10 1(1), 9.102(2), 9.1 02( 1), 9.301(1 )(2) and 8.103,
9.303, 9.304, 8.105, 8.102 and 9.305(2), 8.102 and 9.501(1), 9.502 and 9.501 (2)(a). 9.501 (2)(b), 9.505,
9.506, 9.504(1 )(a), 9.504(1 )(b) and (2), 9.509 and 9.508 of the European Principles, respectively.

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anticipated) non-performance by one of the parties (Art. 1.303(4)); that according to the
UNIDROIT Principles a contract in writing which contains a clause requiring any
modification to be in writing may not be otherwise modified (Art. 2.18), while in the
European Principles the same type of clause establishes only a presumption to this
effect (Art. 2.106(1); and that the U NIDROIT Principles grant the party entitled to avoid
the contract the right to reliance damages irrespective of whether or not it has actually
avoided the contract (Art. 3.18), while the European Principles provide for the recovery
of such damages only where the contract has actually been avoided (Art. 4.17).
Other instances of divergencies not originating from any policy considerations
are that according to the UNIDROIT Principles, in the case that the third person
cannot or will not fix the price, the price shall be a reasonable price (Art. 5.7), while
the European Principles presume that the parties have empowered the court to appoint
another person to determine the price (Art. 6.106(1)); that the UNIDROIT Principles
grant the non-performing party the right to cure even if the aggrieved party has right-
fully terminated the contract (Art. 7.1.4), while according to the European Principles
the non-performing party may cure only where the time of performance has not yet
arrived or the delay would not be such as to constitute a fundamental non-
performance (Art. 8.104); and that the UNIDROIT Principles state in general terms that
exemption clauses may not be invoked if it would be grossly' unfair to do so (Art.
7.1.6), while the European Principles also make provision for the invalidity of such
clauses where non-performance is intentional (Art. 8.109).
Still further examples are that even in case of total and permanent impediment
the UNIDROIT Principles make termination dependent on the initiative of the parties
(Art. 7.1.7(4)), while the European Principles provide for automatic termination of the
contract in such cases (Art. 9.303(4)); that according to the UNIDROIT Principles in
case of termination either party may claim restitution of whatever it has supplied either
in kind or in the form of an allowance in money (Art. 7.3.6), while the European
Principles grant the right to recovery only in a limited number of cases, i.e. where a
party has paid for a performance which it did not receive or has properly rejected (Art.
9.307), or where a party has supplied property or rendered another performance for
which it has not received payment (Arts. 9.308 and 9.309); and that the UNIDROIT
Principles restrict the non-performing party's liability to foreseeable losses (Art. 7.4.4),
while the European Principles provide for an exception to this limitation in cases in
which non-performance was international or grossly negligent (Art. 9.503).
Provisions which appear only in one of the two instruments but not in the other
without there being any "policy" reason for their inclusion or exclusion clearly are, in
the UNIDROIT Principles, Article 1.1 (Freedom of contract), Article 1.3 (Binding cha-
racter of contract) in the chapter on general provisions; Article 2.3 (Withdrawal of
offer), Article 2.8 (Acceptance within a fixed period of time), Article 2.10 (Withdrawal
of acceptance), Article 2.20 (Surprising terms) and Article 2.21 (Conflict between
standard terms and non-standard terms) in the chapter on formation; Article 4.8
(Supplying on omitted term) in the chapter on interpretation; Article 6.1.2 (Performance
at one time or in instalments), Article 6.1.3 (Partial performance), Article 6.1.8

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(Payment by funds transfer) and Article 6.1.10 (Currency not expressed) in the chapter
on performance; Article 7.2.5 (Change of remedy), Article 7.4.10 (Interest on damages)
and Article 7.4.11 (Manner of monetary redress) in the chapter on non-performance.
In the European Principles, provisions with no counterpart in the UNIDROIT
Principles are Article 1.302 (Reasonableness) and Article 1.305 (Imputed knowledge
and intention) in the chapter on general provisions; Article 2.102 (Intention) and Article
2.103 (Sufficient agreement) in the chapter on formation; Article 4.106 (Incorrect
information) in the chapter on validity; Article 6.105 (Unilateral determination by a
party), Article 6.106 (Determination by a third person) and Article 6.107 (Reference to
a non existent factor) to the extent they refer to contractual terms other than the price,
and Article 6.112 (Alternative performance) in the chapter on contents and effects;
Article 7.107 (Property not accepted), Article 7.108 (Money not accepted) and Article
7.109 (Performance by a third person) in the chapter on performance; Article 8.107
(Performance entrusted to another) in the chapter on non-performance and remedies in
general); Article 9.101 (2) (Monetary obligations) and Article 9.302 (Contract to be
performed in parts) in the chapter on particular remedies for non-performance.
Yet even the inclusion of more controversial provisions, such as Article 2.14
(Contract with terms deliberately left open), Article 5.4 (Duty to achieve a specific
result; Duty of best efforts), Article 5.5 (Determination of kind of duty involved) and
Article 7.2.4 Uudicial penalty) of the UNIDROIT Principles, and Article 2.201(2)(3)
(dealing with proposals to the public), Article 2.107 (promises binding without
acceptance), the entire chapter on the authority of agents, Article 6.101 (Statements
giving riSe to contractual obligations), Article 6.103 (Simulation), Article 6.113
(Stipulation in favour of a third party) and Article 9.401 (Right to reduce price) of the
European Principles, seems ultimately due to preferences of a merely technical nature.

(b) Divergencies of policy

The most significant divergency between the two instruments appears right from
the outset. In the Preamble of the UNIDROIT Principles it is stated that they set forth
"general rules for international commercial contracts", whereas the European
Principles "are intended to be applied as general rules of contract law in the European
Community" (Article 1.101)(1) (emphasis added). It means that, while the UNIDROIT
Principles are confined to "international" and "commercial" contracts, the European
Principles apply to all kinds of contracts, including transactions of a purely domestic
nature and those between merchants and consumers. On the other hand, the territorial
scope af application of the UNIDROIT Principles is universal, while that of the
European Principles is formally limited to the member States of the European Union.
This difference in scope explains a number of additional divergencies of policy
appearing in subsequent provisions.
Some of these divergencies depend on the fact that the UNIDROIT Principles
specifically address international contracts, as opposed to the European Principles
which cover contracts in general, including purely domestic ones.

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 UNIDROIT Principles and European Principles: Similar Rules for the Same Purposes?

Thus, while in the European Principles the parties' duty to act in accordance with
good faith and fair deal ing is stated in general terms (Art. 1.201), the corresponding
provision in the UNIDROIT Principles (Art. 1.7) refers to "good faith and fair dealing
in international trade" (emphasis added), so as to make it clear that under the
UNIDROIT Principles the two concepts are not to be construed according to the
meaning generally attached to them in the domestic sphere, but in the light of the
special conditions of international trade. Likewise, while Art. 1.104(2) of the European
Principles states that the parties are bound by any usage which would be considered
generally applicable by persons in the same situation as the parties, Art. 1.8(2) of the
UNIDROIT Principles restricts the applicable usages to those which are "widely
known to and regularly observed in international trade by parties in the particular
trade concerned" (emphasis added), thereby excluding as a rule usages of a purely
local or national origin.
Some other divergencies derive from the fact that the UNIDROIT Principles relate
to contracts between merchants or other professionals, whereas the European Prin-
ciples apply to consumer transactions as well and therefore cannot unconditionally
adopt solutions which typically presuppose parties having the same bargaining power
and/or negotiating skill.
Thus, while both instruments provide that additional or modified terms contained
in writings in confirmation become part of the contract unless such terms materially
alter the contract or the recipient objects to them without undue delay, the European
Principles expressly confine the operation of this rule to situations in which both
contracting parties are professionals. 31 Similarly, the rule according to which a contract
in writing containing a merger clause cannot be contradicted or supplemented by
evidence of prior statements or agreements appears in the UNIDROIT Principles
without further qualification (Art. 2.17), while in the European Principles the same rule
applies only where the merger clause has been individually negotiated (Art.
n.
2.105(1 32 Likewise, the UN IDROIT Principles subject the incorporation of standard
terms to the general rules on formation (Art. 2.19), with the result that a mere reference
to the standard terms will normally suffice to incorporate them in the contract. By
contrast, the European Principles provide that non-individually negotiated contract
terms will be binding only when the party invoking them has taken appropriate steps to
bring them to the other party's attention before or when the contract was concluded,
and expressly specify that a mere reference to such terms in the contract document is
insufficient for this purpose (Art. 2.104).33 Again, while the UN IDROIT Principles

31 Cf. Art. 2.12 of the UNIDROIT Principles and Art. 2.210 of the European Principles.
32 There is only a presumption to this effect if the merger clause has not been individually
negotiated (Cf. Art. 2.105(2)).
33 It should be noted that the European Principles draw a distinction between "non-individually
negotiated terms" and "general conditions of contract"; while the latter are defined as "[...] terms which have
been formulated in advance for an indefinite number of contracts of a certain nature" (Cf. Art. 2.209(3)), no
further definition is given of the former.

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 Michael Joachim Bonell

provide for the avoidance of the contract or its individual terms only where elements of
both procedural and substantive unfairness exist,34 the European Principles, in addition
to such a rule,35 permit the striking out of non-individually negotiated contract terms
simply because they are substantively unfair, i.e. if, contrary to the requirements of
good faith and fair dealing, they cause a significant imbalance in the parties' rights and
obligations arising under the contract (Art. 4.110).36
Finally, there are divergencies which stem from the universal sphere of appli-
cation of the UNIDROIT Principles as opposed to the regional vocation of the
European Principles.
A first example can already be found with respect to the intended use of the two
instruments. While both state that they are applicable when the parties have expressly
referred to them or have subjected their contract to "general principles of law", the
"/ex mercatoria" or the like, and when it proves impossible to settle the issue raised in
accordance with the law otherwise applicable,37 the UNIDROIT Principles provide
for two additional uses, i.e. as a means of interpreting and supplementing existing
international instruments and as a model for national and international legislators
(emphasis added).38 By contrast, while the text of the European Principles is silent in
this respect, significantly enough the Introduction states that "[they] will assist both the
organs of the Communities in drafting measures and the courts, arbitrators and legal
advisers in applying Community measures" (emphasis added).39
Another example is that, while both instruments provide that payment may be
made in any form used in the ordinary course of business, the UNIDROIT Principles
deem it necessary to add the further qualification "at the place for payment",40 thereby
taking into account the fact that modes of payment which are normal business practice
in some regions of the world, are not necessarily so in others. Furthermore, while
according to the European Principles a monetary obligation expressed in a currency
other than that of the place for payment may always be paid in the currency of the
place for payment at the current rate of exchange, unless the parties have stipulated
that payment shall be made only in the contractually agreed currency (Art.
7.111 (1)(2)), the UNIDROIT Principles, in view of the fact that there are countries in

34 cr. Art. 3.10 ("Cross disparity") according to which a party may avoid the contract or any of its
individual terms if, at the time of the conclusion of the contract, the contract or te"m gave the other party an
excessive advantage by its exploitation of a bargaining handicap of the the first party.
35 cr. Art. 4.109 ("Excessive or grossly unfair advantage").
36 Significantly enough this latter provision corresponds almost literally to Art. 3(1) of EEC
Directive 93/13 of 5 April 1993 on Unfair Terms in Consumer Contracts.
37 Cf. Preamble to the UNIDROIT Principles. paras. 2, 3 and 4 and Art. 1.101(2), (3)(a) and (4)of
the European Principles, respectively. - According to Art. 1.101 (3)(b) of the European Principles they may
also be applied "when the parties have not chosen any system or rules of law to govern their contract", but
this should not be considered as a veritable difference of policy with respect to the UNIDROIT Principles.
38 Cf. Preamble to the UNIDROIT Principles, paras. 5 and 6.
39 Cf. O. LANDO - H. BEALE (eds), The Principles of European Contract Law, Part I: Performance,
Non-performance and Remedies (Dordrecht, 1995), cit., Introduction, p. xvii.
40 cr. Art. 6.1.7 of the UNIDROIT Principles and Art. 7.110 of the European Principles.

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 UNIDROIT Principles and European Principles: Similar Rules for the Same Purposes?

the world whose econ'omy does not permit the adoption of a freely convertible
currency, state that payment must be made in the contractually agreed currency not
only when expressly stipulated, but also when the currency of the place for payment is
not freely convertible (Art. 6.1.9(1 n.
Lastly, the UNIDROIT Principles, but not the
European Principles, contain provisions specifically dealing with the case where the
validity of single transactions or their performance is subject to public permission
requirements, thus reflecting the fact that situations of this kind continue to occur
quite frequently in East-West and North-South trade and only rarely, if at all, within
the European single market,41

IV. TERMS OF CO-EXISTENCE

Once the European Principles are finalised, the question will inevitably arise as to
how they can co-exist with the UNIDROIT Principles. Will there be room for both
instruments or are they bound to compete with each other? And if they do not
overlap, what are precisely their respective functions?

1. Two sets of "Principles" for the same purposes?

At first sight it may seem suprising that such similar instruments as the
UNIDROIT Principles and the European Principles could have been elaborated more
or less contemporaneously. However, a closer examination reveals that there were
several good reasons for pursuing the two projects in parallel.
To begin with, when in the early Seventies UNIDROIT decided to undertake
work with a view to preparing uniform rules on international commercial contracts in
general, it was not at all certain that such an ambitious programme could ever be
successfully accomplished. At that time the two Hague Uniform Sales Laws had been
adopted only by a small number of countries, mostly belonging to Western Europe,
while the work on what was eventually to become the universally accepted CISG had
just begun within the recently established UNCITRAL. Under these circumstances it is
no wonder that some years later a similar project for the codification of general
contract law was launched at the European level, where in view of the more
homogeneous economic and political environment the chances of success naturally
appeared greater. And when with the passage Qf time the UNIDROIT project gained
increasing support, work on both projects had reached such an advanced stage that it
was no longer realistic to abandon one in favour of the other.

41 Arts. 6.1.14 - 6.1.17. - The Principles do not address the question of which public permission
requirements should be given effect in a particular case, i.e. whether, in addition to those of the law of the
forum, those of the lex contractus and possibly even those of third countries are relevant, and if so to what
extent. What the UNIDROIT Principles do is to provide the criteria for determining which party has to apply
for the permission, what that party has to do in performing its duty and, finally, what are the consequences
of the permission being refused or being neither refused nor granted.

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 Micha~1 Joachim Bonell

Yet there were also substantial reasons in support of the two projects. UNIDROIT,
being an intergovernmental organisation of a universal nature which addresses the
entire world, had no other choice than to confine the scope of its project to
international commercial contracts. Due to the differences which continue to exist at
world-wide level between the economic and political structures of the various
countries, the legal regimes of purely domestic contracts vary considerably from State
to State; moreover consumer protection, while highly developed in some regions, is
virtually unknown in others. By contrast, the wider scope of the European Principles is
wholly justified in view of the fact that they are designed to operate within the Single
European Market, where any distinction between contracts entered into by nationals of
one State and cross-border contracts would appear rather artificial, and where even the
legal regime of consumer transactions has reached a high degree of harmonisation. 42

2. UNIDROIT Principles and European Principles: no real competition

The future existence of two similar sets of "Principles" has led some commen-
tators to make catastrophic forecasts. Parties and arbitrators, it is argued, will be faced
with two entirely equivalent, and therefore competing, instruments, and the need to
choose between two leges mercatoriae is seen as a veritable "nightmare scenario".43
In less dramatic, but still preoccupied, tones it has been observed that the question as
to the precise relationship between the UNIDROIT Principles and the European
Principles (as well as between the two and the C1SG)44 will be the subject of
discussion for many years to come. 45
Yet are these fears justified?
To begin with, in view of their different origin and scope it is unlikely that there
will be any real competition between the UNIDROIT Principles and the European
Principles outside Europe.

42 cr. C. CASTRONOVO, I 'Principi di diritto europeo dei contratti' e I'idea di cod ice, in Rivista
del diritto commercia Ie 1995,I,p. 21 et seq. (p. 30 et seq.).
43 See in particular H. RAESCHKE-KESSLER, Should an Arbitrator in an International Arbitration
Procedure apply the UNIDROIT Principles?, in Institute of International Business Law and Practice (ed.),
UNIDROIT Principles for International Commercial Contracts: A New Lex Mercatoria?, ICC Publication n°
490/1 (1995), p. 167 et seq. (pp. 174-175); c. KESSEDJIAN, Un exercice de renovation des sources du droit
des contrats du commerce international: Les Principes proposes par l'Unidroit, in Revue critique de droit
international prive 1995, p. 641 et seq. (p. 669).
44 As to the relationship between the UNIDROIT Principles and C1SG, see A.S. HARTKAMP, The
UNIDROIT Principles for International Commercial Contracts and the United Nations Convention on Con-
tracts for the International Sale of Goods, in Asser Institute (ed.), Comparability and Evaluation. Essays on
Comparative Law, Private International Law and International Commercial Arbitration, Nijhoff Publishers,
1994, p. 95 et seq.; M.J. BON ELL, The UNIDROIT Principles of International Commercial Contracts and the
Vienna Sales Convention (C1SG) - Alternatives or Complementary Instruments? in ULR 1996-1, p. 26 et seq.
45 SANDROCK 0., Das Privatrecht am Ausgang des 20. Jahrhunderts: Deutschland - Europa -
und die Welt, in Juristen Zeitung, 1996, p. 1 et seq. (p. 4).

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 UNIDROIT Principles and European Principles: Similar Rules for the Same Purposes?

Thus, legislators from Africa, the Americas, Asia or Oceania can hardly be
expected to take as a model the European Principles which by their own admission
"are designed primarily for use in the Member States of the European Community"
and "have regard to the economic and social conditions prevailing in the Member
States".46 And indeed, in a number of law reform initiatives undertaken outside the
European Union It was the UNIDROIT Principles which served, at least to a certain
extent, as a model: suffice it to mention the new Civil Code of the Russian Federation
or similar projects underway in China, Estonia, Indonesia,47 Israel 48 and New
Zealand. 49 As pointed out by the Australian Government,

"[...] The [UNIDROIT] Principles could be a timely additional resource for the authorities
of those and other countries in their efforts in drafting an important and difficult area of
commercial law. In that respect those authorities may derive confidence from the fact that
the [UNIDROIT] Principles [...] have been drafted in an atmosphere free from any
particular political or ideological persuasion and by some of the most eminent world
experts in this area of the law".50

Similarly, in the context of international commercial contracts between business

persons both or at least one of whom are non-Europeans, why should the parties or, in
case of disputes, the arbitrators refer to the European Principles which openly present
themselves as a "European lex mercatoria",51 instead of the UNIDROIT Principles
whose declared objective "is to establish a balanced set of rules designed for use
throughout the world"?52 Confirmation of this can be found in a recent arbitral award
in which the arbitrators, called upon to settle a dispute between an English company
and an Iranian governmental agency in accordance with "principles of natural justice",
expressly stated that
"[...] general legal rules and principles enjoying wide international consensus, applicable
to international contractual obligations and relevant to the Contracts, are primarily
reflected by the Principles of International Commercial Contracts adopted by UNIDROIT
(the 'UNIDROIT Principles') in 1994 [... J. In consequence, without prejudice to taking into
account the provisions of the Contract and relevant trade usages, this Tribunal finds that

46 cr. O. LANDO - H. BEALE (eds), The Principles of European Contract Law, Part I: Performance,
Non-performance and Remedies (Dordrecht, 1995), cit., Introduction, p. xx.
47 For further details see M.J. BON ELL, Un "cod ice" internazionale del dirillo dei contralli, cit., p.
132 et seq. and p. 193.
48 See A. BARAK, Common Values in the UNIDROIT Principles and in the future Israeli
Codification (Paper presented at the international colloquium on the Principles of UNIDROIT and Modern
National Codifications held in Jerusalem on 23 November 1995).
49 See R. SUTTON, Commentary on 'Codification, Law Reform and Judicial Development', in 9
Journal of Contract Law (1996), p. 200 et seq. (pp. 204-205). .
50 cr. Letter of the Attorney General's Department to the Secretary-General of UNIDROIT of 19
November 1993.
5I cr. O. LANDO - H. BEALE (eds), The Principles of European Contract Law, Part I: Performance,
Non-performance and Remedies (Dordrecht, 1995), cit., Introduction, p. xviii.
52 cr. International Institute for the Unification of Private Law, Principles of International Com-
mercial Contracts, cit., Introduction, p. viii.

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 Michael Joachim Bonell

the Contracts are governed by, and shall be interpreted in accordance to, the UNIDROIT
Principles with respect to all matters falling within the scope of such Principles, and for all
other matters, by such other general legal rules and principles applicable to international
contractual obligations enjoying wide international consensus which would be found
relevant for deciding controverted i?sues falling under the present arbitration". 53

And more recently even in a judgment rendered by a State court, in a dispute

between a French and a U.S. company, two articles of the UNIDROIT Principles were
applied as they were considered to represent "principles of international trade law".54
On the other hand, the European Principles, and not the UNIDROIT Principles,
will be the obligatory point of reference for the legislative and judicial organs of the
European Union when drafting or interpreting Community law. The same applies
mutatis mutandis to the parliaments of single member States, and to courts when
deciding intra-European disputes. Finally, while even parties operating within Europe
are in theory free to choose as the rules governing their contracts the UNIDROIT
Principles instead of the European Principles, in practice it is likely that they will prefer
the latter to the former, especially in contracts between merchants and consumers. 55

3. Future prospects

Neither the UNIDROIT Principles nor the European Principles have been
prepared with a view to becoming binding instruments. Both were conceived as a set
of non-binding rules which would be applied by virtue of their persuasive value only.
Yet even if, due to their success in practice, they were to be converted into binding
instruments, there would be room for both. To be more precise, contrary to what has
been suggested,56 there is no need to merge them into a single set of rules, and indeed
one might even argue that to do so would be almost impossible. And again the reason
lies in the different scope of the two instruments.
To begin with, even supposing that the UNIDROIT Principles were to be
converted into an international convention at some stage in the future,57 why should
this signify the end of the European Principles? The new convention, adopted at
world-Wide level, would necessarily have to be restricted to international commercial

53 For an arbitral award in which a similar conclusion was reached where a contract between a
U.S. company and a Saudi Arabian governmental agency made reference to no further specified "Anglo-
Saxon principles of law", see M.l. BONELL, Un "codice' internazionale del dirillo dei contralli, cit., pp. 195-
196.
54 Cf. Cour d'Appel de Grenoble (Chambre commercia/e), 24 January 1996 (unpublished).
55 In this sense explicitly, e.g., W. TILMANN, Zweiter KodifikationsbeschluB des Europaischen
Parlaments, in Zeitschrift fUr Europaisches Privatrecht 1995, p. 535 et seq. (pp. 536-537).
56 See in particular H. RAESCHKE-KESSLER, op. cit., p. 175; implicitly also A.S. HARTKAMP,
Principles of Contract Law, in A.S. Hartkamp - M.W. Hesselink - E.H.Hondius - C.E. du Perron - J.M.B.
Vranken (eds.), Towards a European Civil Code, Dordrecht 1994, p. 37 et seq.
57 In favour, e.g., J.P. BERAUDO, Les principes d'Unidroil re/alifs au droit du commerce inter-
national, in La Semaine )uridique 1995, I, 3842 (p. 194).

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 UNJDROIT Principles and European Principles: Similar Rules for the Same Purposes?

contracts. Consequently, the European Principles would continue to play an important

role within the European Union if only with respect to purely domestic transactions
and cross-border transactions between merchants and consumers. On the other hand,
the day the European Principles become part of a future Common European Code of
Private Law as called for by the European Parliament in two resolutions,58 there will
still be a need for an instrument such as the UNIDROIT Principles to provide rules
governing international commercial contracts involving non-Europeans.

CONCLUSIONS

For the purpose of unification or harmonisation of law there is nothing worse

than duplication of work leading to the adoption of different instruments competing
with one another in the same area. At first sight it might appear that the more or less
contemporaneous preparation of two sets of rules such as the UNIDROIT Principles
and the European Principles is an example of such a duplication. A closer examination
demonstrates that this is not the case.
It is true that both instruments address basically the same issues of general
contract law and are very similar in terms of formal presentation. However, they
definitely differ as to their scope. The UNIDROIT Principles relate specifically to
international commercial contracts, while the European Principles are intended to
apply to all kinds of contracts, including transactions of a purely domestic nature and
those between merchants and consumers. Moreover, while the territorial scope of the
UNIDROIT Principles is universal, that of the European Principles is formally limited
to the member States of the European Union.
It follows that the two instruments in actual practice not only do not overlap but
may well coexist and play equally important, but not interchangeable, roles. Indeed,
outside Europe or in commercial transactions involving non-Europeans, it will be the
UNIDROIT Principles that apply, while within the European Union or in purely intra-
European contracts, especially between merchants and consumers, it will be the
European Principles that prevail.
In these circumstances it should not be surprising either, nor cause too great
concern, that the two instruments do not entirely coincide as to their content. Some of
the differences clearly depend on their different scope, and such differences of policy
would at any rate be hard, if not impossible, to overcome as long as both instruments
maintain their present sphere of application. As to the differences of a purely technical
nature, the competition between different solutions may even be beneficial: time and
actual practice will determine which rules should ultimately be preferred.

58 See Resolution of 26 May 1989, Official Journal of the European Communities C 158/401 of 26
June 1989 and Resolution of 6 May 1994, Official Journal of the European Communities C 205/518. For the
different ways in which these resolutions could be implemented, see W. TILMANN,op. cit., pp. 534-535.

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 Michael Joachim Bonell

l.ES PRINCIPES D'UNIDROIT RELATIFS AUX CONTRATS DU COMMERCE INTERNATIONAl. ET l.ES PRINCIPES
EUROPEENS DU DROIT DU CONTRAT: DES REGl.ES SEMBLABl.ES POUR l.ES MEMES BUTS? (Resume)
par Michael Joachim Bonell (Professeur de droit a l'Universite de Rome I "La Sapienza";
Conseiller juridique, UnidroiO
A deux ans de la publication des Principes d'Unidroit re/atifs aux contrats du commerce
international, et avec la prochaine adoption de la deuxieme partie des Principes europeens du
droit du contrat, I'auteur pose la question des rapports entre ces deux instruments, leurs
objectifs respectifs et les conditions dans lesquelles ils sont destines a s'appliquer.
Les deux premieres parties, consacrees I'une aux origines et aux conditions d'elaboration
de chacun des deux instruments, I'autre a leur structure et a leur presentation formelle, mettent
en valeur les nombreuses similitudes, parfois meme Hfrappantes H, qui les caracterisent.
Passant dans la troisieme partie au contenu des deux instruments, I'auteur note que 'de
nombreuses dispositions des Principes d'Unidroit se retrouvent de fac;on substantiellement
semblable dans les Principes europeens. Quant aux divergences, certaines sont de caractere
technique, tandis que d'autres touchent a des points de fond. Ces dernieres, que I'auteur
developpe de fac;on plus detaillee, derivent pour I'essentiel de la difference qui affecte la portee
tant materielle que geographique des instruments: Hreg/es generales pour les contrats du
commerce international n dans Ie cas des Principes d'Unidroit, Hregles generales du droit des
H
cont~ats dans la Communaute europeenne pour les Principes europeens.

L'auteur arrive dans la quatrieme partie a la question centrale, a savoir la coexistence

possible des Principes d'Unidroit et des Principes europeens. La reponse offerte est sans
ambigui'te: la portee differente de ces instruments rend evidente I'utilisation des Principes
d'Unidroit en dehors de l'Europe ou encore lorsque I'un des contractants sera non europeen.
(voir a cet egard les premieres experiences pratiques). En revanche, les Principes europeens
seront une reference obligee pour les organes legislatifs ou judiciaires de I'Union europeenne,
et seront plut6t susceptibles d'inspirer les parties au sein de I'Union europeenne surtout lorsque
sont en jeu des consommateurs.
L'auteur conclut en rappe/ant que meme si I'on envisageait un jour de faire de ces deux
corpus de Principes des instruments contraignants, leur portee specifique continuera de justifier
leur existence distincte.

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