International and European ‘soft law’ codes: lessons for English law?

Abstract

INTRODUCTION Summary of main points (1) Differences between the ‘soft law’ codes, PECL, the Principles of European Contract Law , and UNIDROIT's Principles of International Commercial Contracts (2004) and the common law rules will be considered (21.02 and 21.03). (2) The civil law notion of ‘good faith’ (articulated in each of the soft law codes) will be considered (21.03). (3) The question whether the common law rules should be codified will be considered (21.25). There are various ‘soft law’ codes: (1) the global ‘commercial’ contract code, UNIDROIT's Principles of International Commercial Contracts ; (2) PECL, the Principles of European Contract Law , drafted by the (Lando) Commission for European Contract Law; (3) the ECC, the draft European Code of Contracts , drafted by the Academy of European Private Lawyers, under the direction of Giuseppe Gandolfi; and (4) DCFR, the Draft Common Frame of Reference , prepared by the Study Group on a European Civil Code, and the ‘Research Group on EC Private Law’ (the ‘Acquis Group’). Project (3) is in part a revision of project (2). There are lucid summaries of these projects in the essay by Benedicte Fauvarque-Cosson, and of projects (1) and (4) by Stefan Vogenauer. As for (1), Fauvarque-Cosson and Vogenauer note that the UNIDROIT Principles are international, as distinct from (merely) European; and their emphasis is on commercial contracts, and not consumer relations.