Officiële Toelichting

The importance of the Principles for the purpose of the settlement of disputes by means of arbitration has already been stressed (see above the Comments on the Preamble). In order however to avoid undue heaviness of language, only the term ‘court’ is used in the text of the Principles, on the understanding that it covers arbitral tribunals as well as courts.

For the purpose of the application of the Principles a party's place of business is of relevance in a number of contexts such as the place for the delivery of notices (see Article 1.10(3)); a possible extension of the time of acceptance because of a holiday falling on the last day (see Article 1.12); the place of performance (Article 6.1.6) and the determination of the party who should apply for a public permission (Article 6.1.14(a)).

With reference to a party with multiple places of business (normally a central office and various branch offices) this Article lays down the rule that the relevant place of business should be considered to be that which has the closest relationship to the contract and to its performance. Nothing is said with respect to the case where the place of the conclusion of the contract and that of performance differ, but in such a case the latter would seem to be the more relevant one. In the determination of the place of business which has the closest relationship to a given contract and to its performance, regard is to be had to the circumstances known to or contemplated by both parties at any time before or at the conclusion of the contract. Facts known only to one of the parties or of which the parties became aware only after the conclusion of the contract cannot be taken into consideration.

Where necessary, to better identify the party performing and the party receiving performance of obligations the terms ‘obligor’ and ‘obligee’ are used, irrespective of whether the obligation is non-monetary or monetary.

In some cases the Principles refer to a ‘writing’ or a ‘contract in writing’ (see Articles 2.1.12, 2.1.17 and 2.1.18). The Principles define this formal requirement in functional terms. Thus, a writing includes not only a telegram and a telex, but also any other mode of communication, including electronic communications, that preserves a record and can be reproduced in tangible form. This formal requirement should be compared with the more flexible form of a ‘notice’ (see Article 1.10(1)).