Self-enforcing Tools in International Contracts: A Comparative Perspective

One of the most important concerns of parties involved in contractual relationships is the achievement of their respective expectations. This issue is particularly enhanced within international business contracts, due to the absence of a comprehensive and uniform legal framework as well as the lack of a transactional court entitled to solve the disputes arising out of this kind of contract. Such elements concur to increase the transaction costs and the uncertainty about the positive outcome of the deal. In order to mitigate this phenomenon, contracting parties have developed different tools aimed at ensuring, as far as possible, the proper performance of the contract reducing the transaction costs. Within this field, the role of party autonomy has been significantly valorised through the development of new clauses and/or atypical contracts that have been then recognized by the case law and, in some cases, that have even been turned out in normative provisions of international treaties. Accordingly, the present Article will focus, adopting a comparative approach, on some of the most important juridical tools used by parties in international contracts in order to ensure the proper performance of obligations, as well as prevent and /or react to their breach: namely, penalty clauses; the “contratto autonomo di garanzia” (performance bond); and, under certain aspects, smart contracts.