This article focuses on some contract law issues regarding party autonomy and its limits, particularly from the perspective of the doctrine of good faith and fair dealing. It will first enter into some conceptual definitions before moving to some conflict of laws issues and finally discuss the various functions of good faith and fair dealing in their relationship with arbitration. The perspective in this contribution is primarily comparative and international and relates to contracts only. With respect to the latter, the arbitration agreement itself is also not covered as being the subject of another Conference contribution.
I. Good Faith and Fair Dealing in Contract Law: Concept and Misunderstandings
Good faith is an essentially civil law concept which is based on and was developed in Roman law (bona fides) and did find its way into most civil law codifications, notably in France in the Napoleonic Civil Code of 1804 and in Germany in the codification of civil law entering into force in 1900. From there, the notion of good faith spread into other civil law jurisdictions and further developed at the time of recodifications such as in the 1992 Dutch Civil Code or, more recently, the Brazilian Civil Code of 2005. However, the concept no longer is exclusively civilian having been incorporated in the United States in the Uniform Commercial Code (“UCC”) as “good faith and fair dealing” and also finding its way into international conventions such as the Vienna 1980 Convention on the International Sales of Goods (“CISG”).