► Full reference: V. Ulfbeck and O. Hansen, « Des clauses de durabilité dans un droit des contrats non durable ? » (Sustainability Clauses in an Unsustainable Contract Law?), Revue internationale de droit économique, 2021/4, vol. XXXV, pp. 69-90; French translation of the article first published as “Sustainability Clauses in an Unsustainable Contract Law?”, European Review of Contract Law, vol. 16, no. 1, 2020, pp. 186-205.
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► Summary: the authors start from the observation that companies in global value chains, often led by a firm with strong market power, insert sustainability clauses into their contracts, or refer to their codes of conduct, imposing on the supplier requirements relating to the environment, working conditions, human rights and anti-corruption, and often obliging it to pass them on to its own suppliers. They examine the view that general contract law, that is, default rules, should develop to serve this sustainability agenda, through three areas: principles of interpretation, express terms and the notion of third-party beneficiary.
They then highlight the internal tension created in the chain by the pursuit of sustainability goals external to the parties’ interests, set against the need to protect the supplier as the weaker party: the incalculable nature of sustainability obligations and unilateral variation rights are two examples. Finally, they seek to reconcile these conflicting goals within a contract law that is itself sustainable.
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🦉 The article is available in full text to those registered in Professor Marie-Anne Frison-Roche’s courses.