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Ch.10 Limitation periods, Art.10.1 »

Robert Wintgen
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary analyses Article 10.1 of the UNIDROIT Principles of International Commercial Contracts (PICC). Art 10.1 provides an overview of the scope of Chapter 10 of the PICC concerning ‘limitation periods’. According to this provision, the exercise of rights governed by the PICC is barred by the expiration of the limitation period. Chapter 10 does not govern the time within which one party is required under the PICC, as a condition for the acquisition or exercise of its right, to give notice to the other party or to perform any act other than the institution of legal proceedings. This commentary discusses the rights governed by the PICC, exclusion of notice requirements with regard to limitation periods, and prevailing mandatory rules of domestic law on limitation periods. It also considers the implications of inconsistent behaviour, good faith and fair dealing for limitation periods.

Ch.10 Limitation periods, Art.10.2 »

Robert Wintgen
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary analyses Article 10.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning ‘limitation periods’. Art 10.2 stipulates that the general limitation period is three years beginning on the day after the day the obligee knows or ought to know the facts as a result of which the obligee's right can be exercised. The maximum limitation period is ten years beginning on the day after the day the right can be exercised. This commentary discusses the general limitation period under Art 10.2(1) based on the obligee's actual or constructive knowledge; ignorance as a ground for postponement of commencement, rather than for suspension, of the general limitation period; burden of proof in relation to the date of knowledge relevant for commencement of the general period; maximum limitation period under Art 10.2(2); and computation of time, taking into account the meaning of ‘year’, official holidays, non-business days, and time zones.

Ch.10 Limitation periods, Art.10.3 »

Robert Wintgen
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary analyses Article 10.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning modification of limitation periods by the parties. Under Art 10.3, the parties are allowed to modify the limitation periods. However, the parties may not shorten the general limitation period to less than one year, shorten the maximum limitation period to less than four years, or extend the maximum limitation period to more than fifteen years. This commentary discusses the possibility of modification under Art 10.3(1), with particular emphasis on modification by the parties as distinguished from other techniques, different kinds of modification, and means of modification. It also considers limits to modifications under Art 10.3(2), including limits in respect of the general period and limits in respect of the maximum period, along with the effect of agreements on limitation periods in violation of Art 10.3(2).

Ch.10 Limitation periods, Art.10.4 »

Robert Wintgen
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary analyses Article 10.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning new limitation periods by acknowledgement. All major jurisdictions accept that a new limitation period starts to run if the obligor acknowledges the obligee's right. This rule is consistent with the policy considerations underlying limitation periods, since an acknowledgement makes it clear that the obligor is aware of its debt. According to Art 10.4, if the obligor before the expiration of the general limitation period acknowledges the right of the obligee, a new general limitation period begins on the day after the day of the acknowledgement. The maximum limitation period does not begin to run again, but may be exceeded by the beginning of a new general limitation period under Art 10.2(1). This commentary considers the definition of acknowledgement, the time of acknowledgement, burden of proof relating to the new limitation period, and effects of the obligor's acknowledgement of the obligee's right.

Ch.10 Limitation periods, Art.10.5 »

Robert Wintgen
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary analyses Article 10.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the suspension of the running of the limitation period by judicial proceedings. Under Art 10.5, the running of the limitation period is suspended when the obligee performs any act, by commencing judicial proceedings or in judicial proceedings already instituted, that is recognised by the law of the court as asserting the obligee's right against the obligor; in the case of the obligor's insolvency when the obligee has asserted its rights in the insolvency proceedings; or in the case of proceedings for dissolution of the entity which is the obligor when the obligee has asserted its rights in the dissolution proceedings. This commentary explains how the commencement of judicial proceedings can affect the running of limitation periods.

Ch.10 Limitation periods, Art.10.6 »

Robert Wintgen
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary analyses Article 10.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the suspension of the running of the limitation period by arbitral proceedings. If arbitral proceedings are recognised by a legal system, the institution of such proceedings must logically have a similar effect on the running of limitation periods as the institution of judicial proceedings. Under Art 10.6, the running of the limitation period is suspended when the obligee performs any act, by commencing arbitral proceedings or in arbitral proceedings already instituted, that is recognised by the law of the arbitral tribunal as asserting the obligee's right against the obligor. This commentary considers the beginning of suspension of the running of the limitation period under Art 10.6(1) and the end of suspension under Art 10.6(2).

Ch.10 Limitation periods, Art.10.7 »

Robert Wintgen
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary analyses Article 10.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the effects of alternative dispute resolution (ADR) on limitation periods. The provisions of Arts 10.5 and 10.6 apply with appropriate modifications to other proceedings whereby the parties request a third person to assist them in their attempt to reach an amicable settlement of their dispute. This commentary considers the definition of ADR and three requirements that must be met for a suspension of the limitation period in accordance with Art 10.7. It also discusses appropriate modifications with regard to the commencement and end of suspension of the limitation period.

Ch.10 Limitation periods, Art.10.8 »

Robert Wintgen
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary analyses Article 10.8 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the suspension of the limitation period in case of force majeure, death or incapacity. Many domestic legal systems, along with Art 21 of the UN Limitation Convention, provide for a rule which prevents limitation periods from running in the case of vis maior or force majeure. Under Art 10.8, if the obligee has been prevented from causing a limitation period to cease to run due to an impediment that is beyond its control and that it could neither avoid nor overcome, the general limitation period is suspended so as not to expire before one year after the relevant impediment has ceased to exist. This commentary discusses the rationale and effects of force majeure on limitation period, the end of suspension in the case of death and incapacity, and burden of proof relating to the suspension of the limitation period in case of force majeure, death or incapacity.

Ch.10 Limitation periods, Art.10.9 »

Robert Wintgen
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary analyses Article 10.9 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the effects of expiration of the limitation period. Limitation periods may be regarded by a legal system as a matter of procedural or substantive law. In the second case, there are two options with regard to the effects of the expiry of the limitation period. Either the obligation is extinguished (strong effect) or the obligation continues to exist but the obligor is granted a right to refuse performance (weak effect). Under Art 10.9, the expiration of the limitation period does not extinguish the right. For the expiration of the limitation period to have effect, the obligor must assert it as a defence. A right may still be relied on as a defence even though the expiration of the limitation period for that right has been asserted. This commentary also considers the PICC's stand on the influence of the running of the limitation period on securities, collateral, and ancillary claims.

Ch.10 Limitation periods, Art.10.10 »

Robert Wintgen
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary analyses Article 10.10 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the right of set-off with regard to limitation periods. Under Art 10.10, the obligee is entitled to exercise the right of set-off until the obligor has asserted the expiration of the limitation period. At first glance, the provision seems to be a logical consequence of the principle that the time-barred right is not extinguished and that it can still be relied on as a defence. In most major legal systems, however, payment by means of set-off with a time-barred claim is only possible under certain circumstances. In order to prevent the use of time-barred claims for the purpose of set-off, the burden of proof with regard to payment of these claims is on the obligee once the limitation period has expired.

Ch.10 Limitation periods, Art.10.11 »

Robert Wintgen
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary analyses Article 10.11 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the right of restitution with regard to limitation periods. Under Art 10.9(1), the expiration of the limitation period does not extinguish the right but only bars its enforcement, thus making the time-barred obligation a legal ground for voluntary performance. If there has been performance in order to discharge an obligation, Art 10.11 stipulates that there is no right of restitution merely because the limitation period has expired. The use of the word ‘merely’ implies that a restitutionary claim can be based on grounds other than the expiry of the limitation period.

Ch.10 Limitation periods, Introduction to Chapter 10 of the PICC »

Robert Wintgen
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
Chapter 10 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with ‘limitation periods’. The chapter, which was added to the 2004 edition of the PICC but was not amended in the 2010 edition, generally follows an international trend, but some of its provisions are quite unusual in comparison with most domestic laws. Arguably, these provisions cannot be considered as general principles of law or lex mercatoria. In respect of limitation periods, arbitral tribunals should therefore consider carefully whether it is possible to follow the opinion that ‘a reference to lex mercatoria or general principles of law can nowadays be regarded as a choice of the UNIDROIT Principles’.