Enforcement of Penalty Clauses in Civil and Common Law: A puzzle to be solved by the contracting parties

摘要

This paper claims that there is a need for transnational rules to secure the enforcement of penalty clauses in international commercial contracts, due to the insufficiency of the contractual toolkit that parties may use to address both the clash between the civil and the common law traditions, and existing disparities among civil laws in this area. The international community acknowledged this need a long time ago, but unfortunately the tremendous effort exerted in many different harmonization projects is unlikely to lead to the certainty that actors in international trade demand.