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This commentary focuses on Article 2.1.19 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning contracting under standard terms. Art 2.1.19 stipulates that where one party or both parties use standard terms in concluding a contract, the general rules on formation apply, subject to Articles 2.1.20–2.1.22. It spells out three cumulative criteria for provisions to qualify as ‘standard terms’: the terms must be drafted in advance; they must be for general and repeated use by one party; and they must actually be used without negotiation with the other party. This commentary discusses express vs implied incorporation of standard terms as well as special requirements for incorporation of arbitration and jurisdiction clauses.

This commentary focuses on Article 2.1.20 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning so-called surprising terms. Art 2.1.20 stipulates that no term contained in standard terms which is of such a character that the other party could not reasonably have expected it, is effective unless it has been expressly accepted by that party. In determining whether a term is of such a character regard shall be had to its content, language and presentation. Art 2.1.20 is an exception to the rule that a party which accepts the standard terms of the user is in principle bound by them, irrespective of whether it actually knows their contents. In this sense, it reflects the general principle of good faith and fair dealing. This commentary discusses express acceptance of surprising terms as required by Art 2.1.20, along with the burden of proof relating to such terms.

This commentary focuses on Article 2.1.21 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning conflict between standard terms and non-standard terms. Art 2.1.21 stipulates that in case of conflict between a standard term and a term which is not a standard term, the latter prevails. This article has also been characterized as ‘a principle in international trade’ in a French court decision. The non-standard terms may be set out in the same document as the standard terms or in a separate document. This commentary also discusses the burden of proof relating to the existence of a conflicting term which is not a standard term.

This commentary focuses on Article 2.1.22 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning battle of forms. The ‘battle of forms’ arises where the parties reach agreement on the essential terms, usually through a reply to an offer which identifies itself as an acceptance, but both parties indicate, more or less automatically, that their respective standard terms should govern the contract. Since the standard terms often conflict with each other, the question arises whether a contract has actually been concluded at all and, if so, which of the inconsistent standard terms should apply in a given situation. In this regard, Art 2.1.22 follows the ‘knock-out’ doctrine. This commentary discusses battle of forms and the general rules on offer and acceptance, requirements for application of the knock-out rule, result of applying the knock-out rule, battle of conflicting choice of law clauses and jurisdiction clauses, and other possible solutions to the battle of forms and the case for the knock-out doctrine.

Articles 2.1.19–2.1.22 of the UNIDROIT Principles of International Commercial Contracts (PICC) consider the incorporation of standard terms into a contract. The special rules on standard terms contained in Arts 2.1.20–2.1.22 recognize that parties typically treat standard terms differently to individually negotiated ones. The party that wishes to incorporate its standard terms into the contract is referred to as ‘the user of the terms’, whereas the other party that is sought to be bound by such terms is referred to as ‘the other party’. In the context of Art 2.1.20 on surprising terms, the party that has accepted the user's set of standard terms in principle is referred to as ‘the adhering party’.