Rebus Sic Stantibus: A Comparative Analysis for International Arbitration

The present paper examines clausula rebus sic stantibus in a transnational and comparative perspective, within the context of international commercial arbitration. The approach adopted will be grounded on functional comparative methodology, which is based on the assumption that “every society faces essentially the same [legal] problems and solves them by different means but with often similar results”. This constitutes an attempt to derive principles from the common features of a selected set of legal systems, and from authoritative soft laws instruments. The importance of this approach is, contrarily, to select the most modern trend and to erase national parochialisms. In the first part of the paper some highly influential European jurisdictions will be compared in order to assess whether the clausula rebus sic stantibus finds a uniform application. Secondly, turning away from the national setting, attention will be devoted to the implementation of the clausula in transnational law, namely under the Principles of European Contract Law (PECL) and the UNIDROIT Principles on International Commercial Contracts (PICC). This analysis has the purpose of ascertaining whether rebus sic stantibus may be considered as part of the general contract principles of transnational law, and to what extent with regard to the applicable law it can constitute an applicable principle within the realm of international commercial arbitration. Finally, the second part of the paper will address the relevance gained by the clausula, in light of the position adopted in many European jurisdictions and in soft law codifications, allowing us to answer affirmatively to the question whether the rebus sic stantibus is now part of the general contract principles.