Marcel Fontaine

The New Provisions on Plurality of Obligors and of Obligees in the UNIDROIT Principles 2010

1. “Plurality of obligors and of obligees” was one of the subjects retained by the Governing Council of UNIDROIT for possible inclusion in an enlarged third edition of the UNIDROIT Principles of International Contracts (hereinafter: UNIDROIT Principles). At its meeting held at UNIDROIT in Rome in 2006, the Working Group decided to deal with this topic. I had the privilege to be designated as Rapporteur. The subject was on the agenda of the next four sessions of the Working Group held in Rome in 2007, 2008, 2009 and 2010; the Drafting Committee had intermediary meetings at the Max-Planck Institute in Hamburg. The matter is now the subject of the new Chapter 11 of the UNIDROIT Principles. The chapter consists of seventeen articles, in itself the most extensive addition brought by the new edition. The issues at stake are indeed numerous, and sometimes very technical. But for practitioners involved in international trade, the concrete importance of having clear rules concerning plurality of obligors and/or of obligees cannot be over-estimated. Such situations are very frequent; when they occur, many questions must be answered. For instance, what is the extent of the rights of each of the several obligees towards the obligor? Or the extent of the obligations of each of the several obligors towards the obligee? Defences may have a common character, but some may also be specific to the single relationship between one obligor and one obligee: who can assert them, as the case may be? Once a joint and several obligee has received full performance, how is it to be allocated with the other obligees? Once a joint and several obligor has rendered full performance to the obligee, how are its contributory claims against the other obligors to be organised? What if one of the other obligors is unable to contribute? Etc.

L'avant-projet d'Acte uniforme OHADA sur le droit des contrats: vue d'ensemble

J’ai le perilleux privilege d’etre l’expert charge de preparer l’avant-projet d’acte uniforme OHADA sur le droit des contrats. Le moment est venu de vous le presenter dans ses grandes lignes. Les exposes et debats en table ronde de cette apres-midi et de demain matin permettront d’approfondir certains aspects. Je vous parlerai du lancement de la mission et de la methode adoptee (I), du contenu du projet et de ses principales caracteristiques (II). Je vous ferai part ensuite de quelques reflexions au sujet de certains debats qui entourent l’avant-projet (III).

Force Majeure Clauses in International Contracts

Obstacles outside the control of the parties may appear in the course of performing international contracts. The goods to be delivered are destroyed by fire or lost in a shipwreck. An armed conflict prevents the construction to continue. Under such circumstances, is the obligor liable, or may he claim a cause of exoneration? What is to happen to its obligation? What happens to the contract as a whole? Practitioners engaged in international trade generally prefer to organize the consequences of such events themselves, through contractual provisions called force majeure clauses. Force majeure clauses offer very original characteristics in the practice of international contracts. This chapter provides an analytical description of the force majeure clauses, which is followed by some critical considerations. It attempts to draw up a picture of the principal elements generally present in force majeure clauses, with the numerous variations, some of them better than others.Keywords: contractual provisions; force majeure clauses; international contracts; international trade; obligation