Detailed Contract Regulations and the UPICC: Parallels with National Law and Potential for Improvement: The Example of Norwegian Law

One of the purposes of the UNIDROIT Principles of International Commercial Contracts (“UPICC”) is to be chosen as the applicable law in international contracts. Commercial parties may be inclined to choose the UPICC as the governing law for their contracts, if they are confident that the UPICC will provide harmonization and correspondence with commercial practice. In comparison with national law, the UPICC have both advantages and disadvantages in this respect. Thanks to their drafting history, the UPICC may be deemed to represent a distillate of the world’s rules on international contracts, and thus, arguably, the best thinkable regulation for international contracts. On the other hand, there is no centralized court with jurisdiction to interpret and apply the UPICC. This may make it difficult to develop a consistent case law. Moreover, many of the UPICC provisions are based on general clauses, for example the many provisions based on the principle of good faith. As long as there is no unitary understanding of how far the principle of good faith goes and what its effects may be, the provisions will be applied variously, depending on the legal tradition of the interpreter. The explanatory comments published by UNIDROIT on each provision of the UPICC could be an effective means of enhancing the consistent development of case law. This chapter addresses the ways in which the explanatory comments may play an important role in respect to one specific aspect of the application of the UPICC: the relationship between the UPICC and detailed contract regulation. As an illustration of the relevance of this topic, and of the difficulty in identifying a commercially oriented and uniform approach unless clear guidance is provided, some examples taken from the practice of Norwegian law will be made.