On The Nature And Functions Of Principles Of Intemational Commercial Contracts

The Principles of International Commercial Contracts (PICC) was drawn up by the Governing Council of UNIDROIT in May 1994.As an another important document of the International Unification of Contract Law after United Nations Convention on the International Sale of Goods (CISG) in 1980,it makes up for the shortcomings of CISG. The new edition of PICC was unanimously approved by Governing council in April 2004, which has many new contents and its system is more complete. PICC is applied in many ways at the field of international commercial. And it plays a considerable role in adjusting the legal relationship between the two parties. But PICC is applied in a narrower scope in our country. In order to meet the development of the International Commercial activity and master more about PICC, it is necessary to make a further study on PICC. The nature and functions of PICC are closely linked, so we should determine the nature of PICC before studying its functions.This text is divided into three parts to launch a discussion:In the first part, I determine the nature of PICC and then summary the features of it. At present, there are demarcations about the nature of PICC, and it is regarded as international trade usages, a model law and an international restatement of international law or general principles of law. In my opinion, PICC should not belong to any kind of subsistent legal norm, and its nature should be studied in many aspects. Firstly, according to the form of PICC, it has the nature of international restatement of international law. Its form is similar to the form of the international restatement of international law. Secondly, according to the form of its application, its nature is flexible. The nature of PICC is decided by the form of PICC which is chosen by judges or arbitrators or the parties. When judges or arbitrators identify PICC as international trade usages which are applied to a particular case, PICC has the nature of international trade usages; When judge, arbitrator or the parties identify PICC as general principles of law which is applied to a particular case, PICC has the nature of general principles of law; When some country modifies the contract law referring to it, PICC has the nature of a model law. It is conductive to explain the functions and the application forms of PICC. And then I make a summary of the features of PICC. As is known to all, the forms of PICC are very flexible and it is playing a more and more important part in international commercials, which have attracted more attention from many countries. I divide the feathers into some aspects: first, PICC has many new contents and it's system is more complete; second, PICC is more impartial; third, the application of PICC is flexible; fourth, PICC is applied widely; fifth, some provisions of PICC are forward-looking; sixth, other feathers of PICC comparing to Domestic Law. The discussion of this part prepare for the next part.In the second part, I study the functions of PICC. Including its application as an applicable law, a model law, rules of law which are used to interpret or supplement international uniform law instruments and rules of law which are used to interpret or supplement domestic law. When PICC is used as an applicable law, it is divided into three ways: first, express choice by the parties; second, PICC applied as a manifestation of"general principles of law", the"lex mercatoria"or the like referred to in the contract by the parties; third, PICC applied in the absence of any choice of law by the parties. In this part I discuss the functions of PICC in two aspects: the realities and the basic legal theory and give some typical cases.In the third part, I discuss the application of PICC in China and the enlightenment us. In the above passage, I have discussed that PICC make more success and is applied in more ways. But there are only a few scholars studying PICC and only a little paper study referring to it. So I think it is necessary to study PICC, which is my aim to write this text. In this part, firstly I discuss PICC is applied in our country in several ways: first, severed as a model for national legislators; second, applied in the court; third, applied in the arbitration; fourth, applied in other ways, for example, severed as a guide for drafting contracts. From the four aspects, I mainly discuss the realities and the basic legal theory. By discussing its application in our country, PICC is applied more narrowly in our country than in the foreign countries. In order to learn more about PICC, and make it play a role in China, I put forward the following proposals. First of all, organize scholars to study PICC deeply in order to perfect our country's legislation. Secondly, propagate the contents of PICC by cultivating many judges and arbitrators who can master PICC. Fourthly, introduce more about its contents in our law textbook.