Abstract
Guatemalan law distinguishes the applicability of non-State law to govern international contracts depending on the agreed-upon dispute resolution mechanism, as State Courts interpret the domestic law as restrictive in favor of State Law. The use of instruments such as the UPICC, however, is allowed to both judges and arbitrators for supplementary or interpretative purposes. Yet, there are no reported cases of Guatemalan courts having used the UPICC. The authors continue by comparing several provisions of the UPICC with their counterparts in Guatemalan legislation. The authors conclude by emphasizing the potential use of the UPICC in Guatemala while acknowledging that the conditions for its use are more favorable in Arbitration than in a Judicial setting.
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Notes
- 1.
Unidroit Principles of International Commercial Contracts (2016).
- 2.
Vogenauer et al. (2009), p. 13.
- 3.
Paragraph 6 of the official comments to the Preamble of the Unidroit Principles of International Commercial Contracts (2016).
- 4.
The Questionnaire prepared by the General Reporters Alejandro Garro and José A. Moreno Rodríguez can be accessed at the following site: https://aidc-iacl.org/general-congress.
- 5.
See: Article 28 of the UNCITRAL Model Law on International Commercial Arbitration with amendments as adopted in 2006; Article 3 of the Hague Principles on Choice of Law in International Commercial Contracts.
- 6.
In Paragraph 4 of the Comments to the Preamble of the UNIDROIT Principles of International Commercial Contracts 2016, the following suggestion is made: “Parties who wish to choose the Principles as the rules of law governing their contract are well advised to combine such a choice of law clause with an arbitration agreement. The reason for this is that the freedom of choice of the parties in designating the law governing their contract is traditionally limited to national laws (but see now Article 3 of the 2015 Hague Conference on Private International Law’s Principles on Choice of Law in International Commercial Contracts, subject to certain limitations).”
- 7.
See Explanatory Note by the UNCITRAL secretariat on the 1985 Model Law on International Commercial Arbitration as amended in 2006.
- 8.
For further developments on the subject, see: Martinez Guzman (2016).
References
Martinez Guzman E (2016) La aplicación de los Principios de UNIDROIT en el derecho contractual guatemalteco. Universidad Francisco Marroquín, Guatemala, available at: http://www.tesis.ufm.edu.gt/pdf/527428.pdf
UNIDROIT Principles of International Commercial Contracts (2016)
Vogenauer S, Kleinteisterkamp J et al (2009) Commentary on the Unidroit Principles of International Commercial Contracts (PICC). Oxford University Press, UK
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Mendoza Montano, P., Martínez Guzmán, E. (2021). The Unidroit Principles of International Commercial Contracts (UPICC) as Reference for the Uniform Interpretation of Guatemalan Law. In: Garro, A., Moreno Rodríguez, J.A. (eds) Use of the UNIDROIT Principles to Interpret and Supplement Domestic Contract Law. Ius Comparatum - Global Studies in Comparative Law, vol 51. Springer, Cham. https://doi.org/10.1007/978-3-030-54322-8_11
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DOI: https://doi.org/10.1007/978-3-030-54322-8_11
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