'국제상사계약에 관한 UNIDROIT 원칙'의 Hardship 조항에 대한 유용성 고찰

A Study on the usefulness of the 'Hardship'Provisions of UNIDROIT Principlcs of International Commercial Contracts

The purpose of this paper is to examine the usefulness of the 'Hardship Provision' of UNIDROIT Principles, and to find the countermeasures if there are any problems. For this purpose, this writer made a comparative studies to find any differences for the 'Hardship' between this Principles and individual legal systems (for example civil law system and common law system), and aJoo between this Principles and CISG. In civil law system (for example in France and Germany) and in common law system (for example in U.K and U.S.A) there are same or similar legal theories corresponding to the 'Hardship Provisions', but there is no such legal concept in CISG. Even though civil law and common law systems have a similar legal theories, their effects of Hardship are mainly to terminate the contract and to exempt the disadvantaged party from any liability for damages. On the contrary, the 'Hardship Provision' of the Principles entitles t hc- disadvantaged party to request renegotiations. And if both parties fail in reaching agreement within a reasonable time, they may resort to The court. The practical problem is that the court of the forums would apply their individual domestic law as an applicable law according to the rules of private international law to the event which was resorted to each court, instead of the 'Hardship Provisions' of the Principles. Moreover ClSG has not any corresponding provision, so the Hardship provisions of the principles need to be complementary to the ClSG as an applicable law. If the both parties agree to submit their disputes arising from the Hardship to arbitration than to the court, the possibility to apply the Hardship Provisions of the Principles is enhanced because the arbitrators have no obligations to follow the rules of private international law. Thus it is desirable for the both parties of any long-term international contracts to insert Hardship Clause in their contracts, including the concrete circumstances of Hardship, its effect and arbitration tribunal for settling the disputes than to depend upon the Hardship Provisions of the Principles.