【導(dǎo)讀】them(*).Articles...]".contracts”.

　　

【正文】 case of incorporation of the Principles as terms of contract Where, as is the traditional and still prevailing approach adopted by domestic courts with respect to soft law instruments, the parties’ reference to the Principles is considered to be merely an agreement to incorporate them in the contract (see Comment 4 lit. (a), third paragraph, to the Preamble), the Principles and the individual contracts concluded in accordance with the Principles will first of all encounter the limit of the principles and rules of the domestic law that govern the contract from which parties may not contractually derogate (socalled “ordinary” or “domestically mandatory” rules). Moreover, the mandatory rules of the forum State, and possibly of other countries, may also apply if the mandatory rules claim application irrespective of what the law governing the contract is, and, in the case of the mandatory rules of other countries, there is a sufficiently close connection between those countries and the contract in question (socalled “overriding” or “internationally mandatory” rules). 4. Mandatory rules applicable in case of reference to the Principles as law governing the contract Where, as may be the case if the dispute is brought before an arbitral tribunal, the Principles are applied as the law governing the contract (see Comment 4 lit. (a), fourth paragraph, to the Preamble), they no longer encounter the limit of the ordinary mandatory rules of any domestic law. As far as the overriding mandatory rules of the forum State or of other countries are concerned, their application basically depends on the circumstances of the case. Generally speaking, since in international arbitration the arbitral tribunal lacks a predetermined lex fori, it may, but is under no duty to, apply the overriding mandatory rules of the country on the territory of which it renders the award. In determining whether to take into consideration the overriding mandatory rules of the forum State or of any other country with which the case at hand has a significant connection, the arbitral tribunal, bearing in mind its task to “make every effort to make sure that the Award is enforceable at law” (so expressly . Article 35 of the 1998 ICC Arbitration Rules), may be expected to pay particular attention to the overriding mandatory rules of those countries where enforcement of the award is likely to be sought. Moreover, the arbitral tribunal may consider it necessary to apply those overriding mandatory rules that reflect principles widely accepted as fundamental in legal systems throughout the world (socalled “transnational public policy” or “ordre public transnational”). 5. Recourse to rules of private international law relevant in each given case In view of the considerable differences in the ways in which domestic courts and arbitral tribunals determine the mandatory rules applicable to international mercial contracts, this Article deliberately refrains from stating which mandatory rules apply and the Article refers instead to the relevant rules of private international law for the solution in each given case (see . Article 9 of EC Regulation No. 593/2020 (Rome I) (replacing Article 7 of the 1980 Rome Convention on the Law applicable to Contractual Obligations)。 Article 11 of the 1994 InterAmerican Convention on the Law Applicable to International Contracts。 Articles 28, 34 and 36 of the UNCITRAL Model Law on International Commercial Arbitration。 and Article V of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards). (Exclusion or modification by the parties) The parties may exclude the application of these Principles or derogate from or vary the effect of any of their provisions, except as otherwise provided in the Principles. Official Comment 1. The nonmandatory character of the Principles The rules laid down in the Principles are in general of a nonmandatory character, . the parties may in each individual case either simply exclude their application in whole or in part or modify their content so as to adapt them to the specific needs of the kind of transaction involved (see the Model Clause in the footnote to the second paragraph of the Preamble). 2. Exclusion or modification may be express or implied The exclusion or modification of the Principles by the parties may be either express or implied. There is an implied exclusion or modification when the parties expressly agree on contract terms which are inconsistent with provisions of the Principles and it is in this context irrelevant whether the terms in question have been negotiated individually or form part of standard terms incorporated by the parties in their contract. If the parties expressly agree to the application of some only of the Chapters of the Principles (. “As far as the performance and nonperformance of this contract is concerned, the UNIDROIT Principles shall apply”), it is presumed that the Chapters concerned will be applied together with the general provisions of Chapter 1. 3. Mandatory provisions to be found in the Principles A few provisions of the Principles are of a mandatory character, . their importance in the system of the Principles is such that parties should not be permitted to exclude or to derogate from them as they wish. It is true that given the particular nature of the Principles the nonobservance of this precept may have no consequences. On the other hand, it should be noted that the provisions in question reflect principles and standards of behaviour which are of a mandatory character under most domestic laws also. Those provisions of the Principles which are mandatory are normally expressly indicated as such. This is the case with Article on good faith and fair dealing, with the provisions of Chapter 3