The Hague Choice of Law Principles, CISG and PICC: A Hard Look at a Choice of Soft Law

Abstract

The Hague Principles on Choice of Law in International Commercial Contracts are “soft” private international law rules. They empower parties to choose either State law or soft “rules of law” to govern their contract, regardless of whether they litigate or arbitrate. This article investigates the relationship between the Hague Principles and two sets of rules of law which parties may choose: the UNIDROIT Principles of International Commercial Contracts (PICC) or the United Nations Convention on Contracts for the International Sale of Goods (CISG). It makes three principal claims. First, the nature of the Hague Principles and their relationship with the PICC or the CISG gives rise to several normative ambiguities which need clarification. Second, the Hague Principles do not limit the parties' ability to divide their contract at a choice of law level (horizontal dépeçage): parties can influence not only which rules of law govern the contract but also their content. This is undesirable as a matter of principle. It may also facilitate results which the PICC and the CISG do not intend. Third, the Hague Principles provide that the law which the parties purportedly chose determines whether the parties agreed on a choice of law. They also provide a mechanism which designates the law which the parties purportedly chose in standard contract terms. Applied to rules of law, the suitability of these provisions is questionable: alternatives should be explored.

Keywords: Soft law; Hague Principles on Choice of Law in International Contracts; UNIDROIT Principles of International Commercial Contracts; United Nations Convention on Contracts for the Interna-tional Sale of Goods; choice of law agreements; rules of law; dépeçage; the battle of forms