Boilerplate Clauses, International Commercial Contracts and the Applicable Law

Explains how boilerplate clauses fail in the intended aim of self-sufficiency, even under English law, their system of origin.

Giuditta Cordero-Moss (Edited by)

9780521197892, Cambridge University Press

Hardback, published 17 March 2011

426 pages
22.9 x 15.2 x 2.5 cm, 0.77 kg

With the aim of creating an autonomous regime for the interpretation and application of the contract, boilerplate clauses are often inserted into international commercial contracts without negotiations or regard for their legal effects. The assumption that a sufficiently detailed and clear language will ensure that the legal effects of the contract will only be based on the contract, as opposed to the applicable law, was originally encouraged by English courts, and today most international contracts have these clauses, irrespective of the governing law. This collection of essays demonstrates that this assumption is not fully applicable under systems of civil law, because these systems are based on principles, such as good faith and loyalty, which contradict this approach.

Introduction
Part I. How Contracts Are Written In Practice: 1. Negotiating international contracts: does the process invite a review of standard contracts from the point of view of national legal requirements? David Echenberg
2. Multinational companies and national contracts Maria Celeste Vettese
Part II. Methodological Challenges: 3. Does the use of common law contract models give rise to a tacit choice of law or to a harmonised, transnational interpretation? Giuditta Cordero Moss
4. Common law based contracts under German law Gerhard Dannemann
5. Comparing exculpatory clauses under Anglo-American law: testing total legal convergence Edward T. Canuel
6. Circulation of common law contract models in Europe: the impact of European Union system Jean-Sylvestre Bergé
Part III. The Applicable Law's Effects on Boilerplate Clauses: 7. The common law tradition: application of boilerplate clauses under English law Edwin Peel
8. The Germanic tradition: application of boilerplate clauses under German law Ulrich Magnus
9. The Romanistic tradition: application of boilerplate clauses under French law Xavier Lagarde, David Méheut and Jean-Michel Reversac
10. The Romanistic tradition: application of boilerplate clauses under Italian law Giorgio De Nova
11. The Nordic tradition: application of boilerplate clauses under Danish law Peter Møgelvang-Hansen
12. The Nordic tradition: application of boilerplate clauses under Finnish Law Gustaf Möller
13. The Nordic tradition: application of boilerplate clauses under Norwegian law Viggo Hagstrøm
14. The Nordic tradition: application of boilerplate clauses under Swedish law Lars Gorton
15. The East European tradition: application of boilerplate clauses under Hungarian law Attila Menyhárd
16. The East European tradition: application of boilerplate clauses under Russian law Ivan S. Zykin
17. Conclusion: the self-sufficient contract, uniformly interpreted on the basis of its own terms: an illusion, but not fully useless Giuditta Cordero Moss.

Subject Areas: Commercial law [LNCB], Company, commercial & competition law [LNC], Comparative law [LAM], Law [L]