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Prof. (em.) Michael Martinek

Professor Michael Martinek held the chair for Civil and Commercial Law, Business Organisation Law, Comparative Law and Private International Law of University of Saarland in Saarbruecken, Germany, from 1986 to 2019. He was also director of the Institute of European Law. He was born on October 5, 1950 near Duesseldorf where he went to school until 1969, specialising in ancient languages (Latin, Greek, Hebrew). Thereafter he underwent a practical apprenticeship in his father’s transport and shipping business which lasted two years, one of which he spent abroad (London, Birmingham, Paris, Milan). From 1971 to 1976 he studied law and philosophy in Berlin, London and Hamburg and passed the first state examination in law (1976). After two years of practical experience as lawyer in different positions he passed the second state examination in Hamburg (1979). He wrote a doctoral thesis in law (Dr.iur., Berlin 1978) and one in political sciences (Dr.rer.publ., Speyer 1981). He was awarded the degree “Master of Comparative Jurisprudence” by New York University in 1982 after one years of studies in the USA. Thereafter he was an assistant to Professor Dieter Reuter at the universities of Tuebingen and Kiel. Having achieved the professorial qualification (venia legendi) in 1986, he was a docent at university of Muenster/Westfalia, before he was appointed professor for life at Saarland University in Saarbruecken.

Professor Martinek remained faithful to Saarland University despite calls to other universities (Erlangen-Nuernberg, 1990; Freiburg/Breisgau, 1993). By the end of March 2019 and at the age of 68 years, Professor Martinek has been relieved from his duties as active full time professor, chairholder and institute director at Saarland University. He now enjoys the status of a retired professor emeritus with less teaching obligations and more time for research and the supervision of doctoral candidates. He is still closely linked to the law faculty in teaching advanced law students. His major fields of research interest are German and European commercial and business law, trade regulation law and antitrust law, particularly the law of distribution systems and banking law. He has written more than thirty books or major treatises (some of them have become standard works) and more than two hundred and fifty articles, contributions and notes. In 1999 he was appointed Visiting Fellow to Warwick University school of law, England. In 2002 an honorary doctor degree has been conferred upon him by Zhongnan University of Economics and Law (ZUEL) in Wuhan, P.R. of China. In 2007 a doctor honoris causa by Université Lille 2 (Droit et Santé), France, and in 2009 a another doctor honoris causa by University of Craiova, Romania, followed. In 2013 the University of Warszawa, Poland, conferred an honorary doctor iuris degree upon him. He regularly is a visiting professor at ZUEL Wuhan and at University of Johannesburg (formerly: Rand Afrikaans University), Rep. of South Africa. In 2006 he was appointed Honorary Professor of Law and in 2015 Distinguished Visiting Professor at University of Johannesburg.

Pacta sunt servanda and renegotiation duties in international commercial contracts

Some jurisdictions have introduced, by amendment of their civil or commercial code, respectively by judge-made case law, a “duty of renegotiation” or “obligation to renegotiate” for the contractual partners in cases of hardship or of certain types of frustration of long-term (relational) contracts. This is designed to constitute a mandatory legal instrument for the parties to attempt themselves, in exercise of their private autonomy, an adaptation of their contract to materially changed circumstances. Only upon the failure of renegotiations can the court interfere and adjust the contractual content. The Unidroit Principles of International Commercial Contracts (2016), in their Article 6.2.3 on “effects of hardship”, provide for an “entitlement” of the disadvantaged party “to request renegotiations”. More so, in the scholarly writings on theory of contract law, the suggestion has been launched to even prescribe antecedent renegotiations in cases of (imminent) non-performance due to impossibility, default, or violation of warranty rights.

The paper analyses and explains the “doctrine of renegotiation duty”, which constitutes a clear exemption (or a flagrant violation) of the principle pacta sunt servanda. It shows that renegotiation duties have a blatant tendency to discriminate against the weaker party already disadvantaged by the material adverse changes. Thus, it submits to disestablish entirely the concept of prescribed antecedent renegotiations in all cases of hardship, and the more so in other situations of non-performance. This leaves, of course, voluntary renegotiations by the parties always and anytime untouched.