INADEMPIMENTO CONTRATTUALE E RISARCIMENTO DEL DANNO NEL DIRITTO INTERNAZIONALE PRIVATO

The topic of my dissertation is Breach of Contract, Remedies and particularly Damages in Private International Law. Therefore my attention shall be focused on the conflict-of-law issues, nonetheless paying as well due attention to the comparative issues, as a necessary preliminary study to my analysis. The undisputed and ever increasing relevance of international contracts in both private and business transactions, together with the differences detectable in the substantive laws in the many legal orders, justify the attention paid to this topic, due to the possible diverse outcomes of the same dispute in the different jurisdictions. Among these differences, for instance, the several possible remedies available against breach of contract (specific performance, reduction of the price of purchase, termination of the contract, damages) and their pre-requisites. Civil law orders, on one side, show a preference for specific performance or reduction of the price as a result of their moral approach to breach of contract and in fact generally require fault of the breaching party in order to assess damages, whereas common law systems, on the other side ‒ implementing an economic approach ‒ favour damages, regardless of fault. The aforementioned differences in substantive law show the importance of studying the conflict-of-law rules in breach of contract and its consequences, in order to assure – inasmuch as possible – the quest for the “best governing law” and uniformity in the final outcome of the dispute. And although international uniform law conventions, such as the 1980 Vienna Convention on International Sales of Goods or soft-law tools, such as UNIDROIT Principles or the Principles of European Contract Law, have undoubtedly contributed to harmonization, they cannot assure uniformity. The Vienna Sales Convention, for instance, has not been ratified by every country (UK, Brazil, Portugal and India, among others, have not ratified it and Japan only recently has) and it only applies “to contracts of sale of goods between parties whose places of business are in different States” (Art 1(1)), therefore leaving out of its scope private transactions as well as business transactions other than the aforementioned ones (for instance, disregarding contracts whose international character is borne out of the place of performance being other than the one in which both parties happen to have their place of business). Furthermore, it states the right to interests on damages (Art 78), but it does not provide for any criteria in order to calculate them. This shows, once again, that uniform law conventions do not necessarily or thoroughly prevent conflict-of-law issues from arising. Therefore, the question to be addressed states as follows: dealing with the breach of a contract bearing multi-state connections, which shall be the law governing the breach of contract and the remedies against it? Shall all these issues be governed by the law applicable to the contract or should there be exceptions? From a general point of view it may be assessed that the law applicable to the contract applies, with a few exceptions. As far as the law applicable to damages is concerned, for example, the issue of the possible concurrence of the lex fori with the law governing the contract arises. The matter concerning the law applicable to damages has traditionally been split into two separate issues, the first one pertaining to the remoteness (i.e. forseeability) and the heads of damages and commonly governed by the law applicable to the contract in light of the fact that such issues play no role in the correct carrying out of the process and the enforcement of the lex fori is therefore ruled out. The second one is related to the measure and quantification of damages and, as stated in case-law concerning extra-contractual liability which may nevertheless be addressed to as for breach of contract as well, a restricted enforcement of the lex fori should be justified, but only as far as aspects pertaining to the proper functioning of the judicial mechanism are concerned, such as, for instance, the manner of assessment of damages. Some legal orders, for instance, will require a jury to assess the measure and quantification of damages, in which case, the lex fori applies. As for the matter concerning interests, relevant differences may once again be pointed out from both the substantive and the PIL point of view. From the substantive-law point of view some legal orders, such as the Italian and the Swiss ones, do not allow compound interest and others, such as the Islamic ones, do not allow the assessment of interests at all, although providing for alternative means of compensation. And while common law orders usually characterize interests as a matter of procedure therefore applying the lex fori, in the civil law countries the same issue is considered as a matter of substance and thus governed by the lex contractus. These differences, once again, underline the possible different outcomes of the same dispute and the importance of the detection of the proper applicable law. I nevertheless wonder if, as far as international transactions by privates and small business firms (and not by big corporations, which entail different issues and mechanisms) are concerned, the different rule of governing interests by means of the law of the domicile of the non-breaching party shouldn’t be stated, instead. If interests are assessed to protect the economic power of the non-breaching party, such party being a private or a small firm, this party will probably see its own economic power better safeguarded by the enforcement of the law applicable in the economic and legal context in which he commonly lives and does his business, rather than the lex fori or the law applicable to the contract, which might have been simply chosen by the parties or have no connection with the environment he usually deals with. One last relevant issue must be borne in mind: whereas two States provided not only for the same substantive rule, but also for the same conflict-of-law rule, uniformity would still not be necessarily assured, due to possible discrepancy in the characterization of the same issue. As far as contractual obligations are concerned, characterization problems may in fact arise in connection with pre-contractual liability, but also donations as well as maintenance obligations. Therefore, in order to implement, insofar as possible, harmonization in the outcome of an international dispute, uniformity in both conflict-of-law rules and jurisdiction criteria should be pursued. Just like uniform PIL rules do not – themselves – assure uniformity, harmonized jurisdiction rules will never – alone – ensure uniformity in the outcome of the same dispute due to the possibility of multiple forums being competent at the same time in international contractual matters. Under the Brussels I regulation, for instance, the forum of the defendant’s domicile (Art 2(1)), but also the one of the place of performance of the obligation in question (Art 5(a)), as well as the one possibly agreed upon by the parties by means of a choice of court agreement (Art 23 – prorogation of jurisdiction, which shall be exclusive unless the parties have agreed otherwise), may each have jurisdiction over the same contractual issue. The same rules have been adopted between EC Member States (including Denmark), Switzerland, Norway and Iceland with the New Lugano Convention, signed on October 30th 2007.