El resurgimiento de los pactos limitativos en la contratación internacional: propuesta de una nueva regulación para América y Europa

Excluding liability clauses are complicated to negotiate on an international level because its validity can be easily challenged. For the major part of doctrine, the international commerce needs the validity of these clauses in order to enhance the contracts' celebration. Otherwise, it would suppose a very high contractual risk. From a comparative point of view, we realize that national legal systems have developed specific control tools, as well as the international conventions of contractual unification. In this study, we have classified in three blocks the limits that affect the validity of the excluding or restricting liability clauses, we have therefore adopted a “lege ferenda” proposal in order to harmonize and to wrap up the existing limits in the legal systems so that the differences are no longer that significant. This formula tries to minimize the risks and to ensure to the maximum the legal security and efficiency in international contracts.