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Papers by Pascal Pichonnaz

Research paper thumbnail of Berufliche und freiwillige Vorsorge in der Scheidung : 5. Symposium zum Familienrecht 2009, Universität Freiburg

Research paper thumbnail of Vermögensrechtliche Probleme der nichtehelichen Lebensgemeinschaft

Research paper thumbnail of Ch.8 Set-off, Introduction to Chapter 8 of the PICC

Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC), 2015

Chapter 8 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with set-... more Chapter 8 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with set-off. Set-off, also known as compensation, is generally defined as a mechanism by which two (or more) reciprocal obligations of an obligor (debtor) and an obligee (creditor) can be extinguished up to the level of the smaller amount if the requirements fixed by the applicable law are met. It is therefore an effective and simplified way of discharging a party's obligation, avoiding overlapping payments (‘circuity of payment’) or performances. Chapter 8 addresses the issue of set-off in five provisions: conditions of set-off, foreign currency set-off, set-off by notice, content of notice, and effect of set-off. It considers set-off in the case of assignment of rights, transfer of obligations, assignment of a contract, and when the obligation is affected by the limitation period.

Research paper thumbnail of Ch.8 Set-off, Art.8.4

Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC), 2015

This commentary analyses Article 8.4 of the UNIDROIT Principles of International Commercial Contr... more This commentary analyses Article 8.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning content of notice. According to Art 8.4, the notice must specify the obligations to which it relates. If the notice does not specify the obligation against which set-off is exercised, the other party may, within a reasonable time, declare to the first party the obligation to which set-off relates. If no such declaration is made, the set-off will relate to all the obligations proportionally. This commentary discusses the consequences of absence of specification by the first party, with particular emphasis on multiple obligations of the other party, multiple obligations of the first party, and multiple obligations on both sides. It also considers the burden of proof relating to content of notice.

Research paper thumbnail of Ch.8 Set-off, Art.8.2

Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC), 2015

This commentary analyses Article 8.2 of the UNIDROIT Principles of International Commercial Contr... more This commentary analyses Article 8.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning foreign currency set-off. Art 8.2 deals with set-off in the case of freely convertible currencies and restrictions to set-off between foreign currencies. Where the obligations are to pay money in different currencies, the right of set-off may be exercised, provided that both currencies are freely convertible and the parties have not agreed that the first party shall pay only in a specified currency. This commentary discusses the principle of set-off for freely convertible currencies, conversion and the exchange rate for freely convertible currencies, set-off in currencies that are not freely convertible, and burden of proof relating to foreign currency set-off.

Research paper thumbnail of Ch.8 Set-off, Art.8.3

Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC), 2015

This commentary analyses Article 8.3 of the UNIDROIT Principles of International Commercial Contr... more This commentary analyses Article 8.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning set-off by notice. Under Art 8.3, the right of set-off is exercised by notice to the other party. This means that set-off can operate outside a courtroom and has a discharging effect on the obligation of the first party without the intervention of a judge or arbitrator. This commentary discusses the principle of set-off by notice, the form of notice of set-off, and time to give notice (‘anticipatory notice’). It also considers two other modes of set-off, set-off within insolvency proceedings and set-off by agreement, and concludes by explaining the burden of proof relating to set-off by notice.

Research paper thumbnail of Ch.7 Non-performance, s.1: Non-performance in general, Art.7.1.7

Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC), 2015

This commentary analyses Article 7.1.7 of the UNIDROIT Principles of International Commercial Con... more This commentary analyses Article 7.1.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning force majeure. According to Art 7.1.7, force majeure can be broadly defined as ‘the result of an impediment beyond a party's control and which that party could not reasonably have taken into account at the time of conclusion of the contract, or have avoided or overcome it or avoided or overcome its consequences on the ability to perform’. In other words, when non-performance is triggered by an event which could be qualified as force majeure, the obligor is no longer liable for damages. However, force majeure does not remove the ‘non-performance’ as such; as a consequence, the aggrieved party still has the right to terminate the stranded contract. This commentary discusses the relationship between the application of force majeure clauses and contractual practice, Art 7.1.7(1) as a default rule, consequences of force majeure, and burden of proof relating to for...

Research paper thumbnail of Part III Set-Off Between Solvent Parties, 8 Claims Arising From the Same Contract or Different Contracts

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part V Conclusion, 14 Conclusion

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part III Set-Off Between Solvent Parties, 7 The Requirement of Mutuality

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part III Set-Off Between Solvent Parties, Introduction

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part III Set-Off Between Solvent Parties, 6 General Aspects of Set-Off Between Solvent Parties Under Civil Law

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part II Jurisdiction and Applicable Law, 4 Applicable Law

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part III Set-Off Between Solvent Parties, 5 General Aspects of Set-Off Between Solvent Parties Under English Law

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part II Jurisdiction and Applicable Law, 3 Jurisdiction Issues

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part I Introduction, 2 General Aspects of Set-Off

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part IV Set-Off Against Insolvent Parties, 13 Insolvency Set-Off Under Civil Law

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part III Set-Off Between Solvent Parties, 9 The Requirement That Claims Be of the Same Kind

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part IV Set-Off Against Insolvent Parties, 12 Insolvency Set-Off Under English Law

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part I Introduction, 1 Introductory Remarks

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Berufliche und freiwillige Vorsorge in der Scheidung : 5. Symposium zum Familienrecht 2009, Universität Freiburg

Research paper thumbnail of Vermögensrechtliche Probleme der nichtehelichen Lebensgemeinschaft

Research paper thumbnail of Ch.8 Set-off, Introduction to Chapter 8 of the PICC

Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC), 2015

Chapter 8 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with set-... more Chapter 8 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with set-off. Set-off, also known as compensation, is generally defined as a mechanism by which two (or more) reciprocal obligations of an obligor (debtor) and an obligee (creditor) can be extinguished up to the level of the smaller amount if the requirements fixed by the applicable law are met. It is therefore an effective and simplified way of discharging a party's obligation, avoiding overlapping payments (‘circuity of payment’) or performances. Chapter 8 addresses the issue of set-off in five provisions: conditions of set-off, foreign currency set-off, set-off by notice, content of notice, and effect of set-off. It considers set-off in the case of assignment of rights, transfer of obligations, assignment of a contract, and when the obligation is affected by the limitation period.

Research paper thumbnail of Ch.8 Set-off, Art.8.4

Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC), 2015

This commentary analyses Article 8.4 of the UNIDROIT Principles of International Commercial Contr... more This commentary analyses Article 8.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning content of notice. According to Art 8.4, the notice must specify the obligations to which it relates. If the notice does not specify the obligation against which set-off is exercised, the other party may, within a reasonable time, declare to the first party the obligation to which set-off relates. If no such declaration is made, the set-off will relate to all the obligations proportionally. This commentary discusses the consequences of absence of specification by the first party, with particular emphasis on multiple obligations of the other party, multiple obligations of the first party, and multiple obligations on both sides. It also considers the burden of proof relating to content of notice.

Research paper thumbnail of Ch.8 Set-off, Art.8.2

Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC), 2015

This commentary analyses Article 8.2 of the UNIDROIT Principles of International Commercial Contr... more This commentary analyses Article 8.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning foreign currency set-off. Art 8.2 deals with set-off in the case of freely convertible currencies and restrictions to set-off between foreign currencies. Where the obligations are to pay money in different currencies, the right of set-off may be exercised, provided that both currencies are freely convertible and the parties have not agreed that the first party shall pay only in a specified currency. This commentary discusses the principle of set-off for freely convertible currencies, conversion and the exchange rate for freely convertible currencies, set-off in currencies that are not freely convertible, and burden of proof relating to foreign currency set-off.

Research paper thumbnail of Ch.8 Set-off, Art.8.3

Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC), 2015

This commentary analyses Article 8.3 of the UNIDROIT Principles of International Commercial Contr... more This commentary analyses Article 8.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning set-off by notice. Under Art 8.3, the right of set-off is exercised by notice to the other party. This means that set-off can operate outside a courtroom and has a discharging effect on the obligation of the first party without the intervention of a judge or arbitrator. This commentary discusses the principle of set-off by notice, the form of notice of set-off, and time to give notice (‘anticipatory notice’). It also considers two other modes of set-off, set-off within insolvency proceedings and set-off by agreement, and concludes by explaining the burden of proof relating to set-off by notice.

Research paper thumbnail of Ch.7 Non-performance, s.1: Non-performance in general, Art.7.1.7

Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC), 2015

This commentary analyses Article 7.1.7 of the UNIDROIT Principles of International Commercial Con... more This commentary analyses Article 7.1.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning force majeure. According to Art 7.1.7, force majeure can be broadly defined as ‘the result of an impediment beyond a party's control and which that party could not reasonably have taken into account at the time of conclusion of the contract, or have avoided or overcome it or avoided or overcome its consequences on the ability to perform’. In other words, when non-performance is triggered by an event which could be qualified as force majeure, the obligor is no longer liable for damages. However, force majeure does not remove the ‘non-performance’ as such; as a consequence, the aggrieved party still has the right to terminate the stranded contract. This commentary discusses the relationship between the application of force majeure clauses and contractual practice, Art 7.1.7(1) as a default rule, consequences of force majeure, and burden of proof relating to for...

Research paper thumbnail of Part III Set-Off Between Solvent Parties, 8 Claims Arising From the Same Contract or Different Contracts

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part V Conclusion, 14 Conclusion

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part III Set-Off Between Solvent Parties, 7 The Requirement of Mutuality

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part III Set-Off Between Solvent Parties, Introduction

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part III Set-Off Between Solvent Parties, 6 General Aspects of Set-Off Between Solvent Parties Under Civil Law

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part II Jurisdiction and Applicable Law, 4 Applicable Law

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part III Set-Off Between Solvent Parties, 5 General Aspects of Set-Off Between Solvent Parties Under English Law

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part II Jurisdiction and Applicable Law, 3 Jurisdiction Issues

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part I Introduction, 2 General Aspects of Set-Off

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part IV Set-Off Against Insolvent Parties, 13 Insolvency Set-Off Under Civil Law

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part III Set-Off Between Solvent Parties, 9 The Requirement That Claims Be of the Same Kind

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part IV Set-Off Against Insolvent Parties, 12 Insolvency Set-Off Under English Law

Set-Off in Arbitration and Commercial Transactions, 2014

Research paper thumbnail of Part I Introduction, 1 Introductory Remarks

Set-Off in Arbitration and Commercial Transactions, 2014