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Le  Raisonnable  en Droit du Commerce International

[On Reasonableness in International Commercial Law]

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SUMMARY

In the same proportion as international commercial law sources multiply, the concept of 'reasonableness' expands, suggesting either a particular eagerness for this notion with 'adjustable contents', or a practical mean for third parties, judges and arbitrators, to fill in the gaps of the international commercial law.

Indeed, this concept remains mysterious. Although Chaïm PERELMAN relied on it as an ideal of fairness, Old Europe's lawyers educated under the roman-Germanic tradition might be bothered by the troublesome changeability in the standard of 'reasonableness'. Obviously, the search for the balanced judicial that started in the Antiquity (bonus pater familias) comprises much uncertainty. So does also the 'reasonableness', following this rule that is sometimes for the better or the worse, according to the case's circumstances, the judges and referee's propensity. This notion is ever-present in the Common Law of international commercial contracts, although not supported by a deep study in the philosophy of law (jurisprudence).

The concept of 'reasonableness' in international commercial law became a discrete but necessary cornerstone of international conventions on conflicts of laws such as the 19 June 1980 Rome Convention on the law applicable to the contractual obligations, the second Hague Convention on conflicts of laws applicable to the international sale of goods (1986), the inter-American Mexico Convention of 1994. The same phenomenon also appears in other conventions dealing with conflicts of laws in other fields than in international commercial law. This suggests that the recurrence of 'reasonableness' often originates in the difficult drafting of the texts of law.

The material or substantial law such as the uniform laws of 1964 on the international sale of goods, and especially the Vienna Convention on this subject abounds with more or less useful signs of the 'reasonableness', which can also be found many times in the Conventions of the United Nations Commission for International Trade Law (U.N.C.I.T.R.A.L.)

The majority of doctrine seems quite satisfied with this flexible concept allowing them as well as judges in their mission of arbitrator of international commercial law to judge pacifically many cases. Some well-known specialists of comparative law applaud the doctrinal efforts on this key convention, since it regulates the sale that is the most common contract in international commercial law.

Some proponents of this kind of law unification went farther although they did not succeed in proposing some Conventions. They suggested instead some codifications of international or regional laws, such as the Unidroit Principles, or the European Contract Law or the von Bar Commission's and PAVIE Group's works).

Arbitrators also support eagerly the 'reasonableness', looking for more flexible and fair solutions, especially when they are entitled powers as amiable compositeurs ; They do not hesitate to get inspiration from the informal sources of law such as the UNIDROIT principles.

Why? May be because these recent texts refuse to tie the interpreter, judge or arbitrator's hands, who is in the best position to define the 'reasonableness' and the 'unreasonableness' in casu. This implies obviously diffuse and contradictory case law. Nevertheless, the works performed by the U.N.C.I.T.R.A.L., U.N.I.D.R.O.I.T. and many Universities around the world finally suggest certain homogeneity within some international commercial law areas, thanks to databases, an instrument that is necessary to practitioners.

All these expressions of the 'reasonableness' call for an assessment of the notion and of its purpose.

Undoubtedly, the 'reasonableness' provides the international trade with a dose of flexibility that can rescue contracts and markets, by lenience towards the risks of economic life. The activities of international trade actors are therefore appreciated with more or less softness, depending upon circumstances and their behavior. A French law Professor called this the reasonable of modulation and the reasonable of conformity. Aiming for what is fair is a virtue of this notion, which though remains vague. Fairness is not less variable than 'reasonableness'.

Nonetheless, behaviors and actions still are to be appraised with the help of the 'reasonableness', as a strict rule steering good and bad behaviors could lead to subjectivity and even arbitrary. Nevertheless, as an author suggested, the 'reasonableness' provides the Code Napoléon with "roundedness" that it lacked.

The study of all provisions referring to the 'reasonableness' in the Vienna Convention, in the UNIDROIT principles as well as other drafts of Restatements shows a worrying frequent use of the 'reasonableness' as a standard, in a so called spirit of originality, that leaves the interpreter with an uncontrolled autonomy.

Moreover, there are some more troubles linked to a still unrestrained flexibility of the concept, illustrated by some comparative case law and by the arbitrators' practice, and still undefined functions. Nevertheless, 'reasonableness' provides to the international commercial law for a softening favorable to international trade, together with a strengthening of equity and good faith, both inseparable from it.


Pace Law School Institute of International Commercial Law - Last updated January 5, 2004
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