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This book proposes a new analysis of the transformation of Europe through integration, exactly 30 years after the beginning of transformation scholarship. It consists of a reconstruction of the development and present condition of European integration in relation to private ordering. Looking at the interface between, on the one hand, the EU constitutional order and, on the other hand, private ordering, the book recounts three major structural transformations over the last six decades. Delving into the private law areas most exposed to the current modernisation wave – consumer law, internal market, lex mercatoria, digitisation, artificial intelligence, data protection, standardised contracts, finance and political economy, and labour – the book critically explores a reconfiguration of Europe's constitutional structures relative to, and that results from, what to some appears to be an almost irresistible rise of private ordering through a transformed hermeneutics (balancing). This is a magisterial survey of European law, European private law, and comparative law seen through a pathbreaking comparative methodology labelled 'juridical comparative hermeneutics' within civil law systems and across the civil-common law divide, which offers innovative analytical tools that afford a deep understanding of the evolution of the disciplines.
There remains an urgent need for a deeper discussion of the theoretical, political and federal dimensions of the European codification project. While much valuable work has already been undertaken, the chapters in this volume take as their starting point the proposition that further reflection and critical thought will enhance the quality and efficacy of the on-going work of the various codification bodies. The volume contains chapters by representatives of the Common Frame of Reference, the Study Group and the Acquis Group as well as by those who have not been involved in particular projects but who have previously commented more distantly on their work - for instance those belonging to the Trento Group, and the Social Justice Group. The chapters between them represent the most comprehensive attempt so far to survey the state of the codification project, its theoretical, political and federal foundations and the future prospects for enforcement and compliance.
This is a remarkably ambitious work of scholarship. What can Europe bring to private law, and what can it take away? And how do we shape the institutional design of the governance model(s) that comprise Europe ? A stellar collection of contributors provides important fresh insights into the evolving and varied patterns according to which private law is generated in Europe. Stephen Weatherill, Somerville College, Oxford, UK The debate concerning the desirability and modes of harmonisation of European Private Law (EPL) has, until now, been mainly concerned with substantive rules. The link between rules and institutions suggests that governance of both the process of harmonisation and its outcome is necessary. This book covers various perspectives on the challenge of designing governance for EPL: the implications of a multi-level system in terms of competences, the interplay between market integration and regulation, the legitimacy of private law making, the importance of self-regulation, the usefulness of conflict of law rules, the role of intergovernmental institutions, and the aftermath of enlargement. In addressing these, the book s achievements are to successfully link two areas of scholarship that have so far remained separate, EPL and new modes of governance, and to address institutional reforms. The contributions offer different proposals to improve governance: the creation of a European Law institute, the improvement of judicial cooperation among national courts, the use of committees for implementation of EPL. Suggesting practical institutional reforms that can improve the process of Europeanisation of private law, this book will be of great interest to scholars of law, politics, political science, sociology and economics. It will also appeal to policymakers, and members of both European institutions and national institutions dealing with European matters.
In The New European Private Law, Martijn W. Hesselink presents a revised and supplemented collection of essays written over the last five years on European private law. He argues that the creation of a common private law in Europe is not merely a matter of rediscovering the old ius commune or of neutrally establishing the present 'common core' which may be codified in a European Civil Code. Rather, it is a matter of making choices, some of which may be highly controversial. In this book he discusses some of the most important choices which will have to be made with regard to culture, principles, politics, models, rights, concepts and structure in the new European private law.
The private law of the Member States of the European Union has become more and more 'European'. The fact that the European Union is making ever more use of directives as an instrument to achieve private law goals, is, in this context, not the most important development. Of much more substance is the fact that one increasingly realises that a uniform European private law has to be created, in one way or another, in the near future, if a truly common European market is to function at all. Over the last decade, Europe has witnessed the emergence of a vigorous debate about the need for and the feasibility of a future European ius commune in the field of private law. This book critically discusses this debate and provides a systematic overview of the various initiatives taken and describes the fragmentary European private law that already exists (by way of European directives, international conventions, etc.). In addition, the author aims at making a contribution to the debate by suggesting that the experience (good or bad) of the so-called 'mixed legal systems' is of great importance to the European private law venture and to the development of a uniform private law for Europe. This idea is supported by insights from Law & Economics and illustrated by South African law in particular. This idea of 'European private law as a mixed legal system' is then applied to the law of contracts, torts and property. This book takes up the challenge to give a critical examination on the various methods of creating this ius commune. A detailed table of contents, list of abbreviations, bibliography, table of cases and index complete the book and make it a valuable study for everyone interested in European private law.
The Europeanisation of European Private Law (EPL) is an ongoing process that has gained momentum with the communautarisation of judicial cooperation in civil and commercial matters with the Amsterdam Treaty. This work examines the governance structure of EPL. It proves that more can be achieved towards the Europeanisation of private law through a new approach involving innovative modes of governance in EPL. In order to test this hypothesis, it is necessary to look at this exercise from three different angles. The first angle provides a study about the tools and the context with which one can further Europeanise private law and bridge the gaps between the main legal families, common law and civil law. The second angle encompasses a study of what has and what has not been achieved in the development of EPL by looking at both EU and non-EU initiatives. The final angle then examines the role of governance in the future development of EPL. As such, this study confirms that the further Europeanisation of EPL requires a multi-level mode of governance, confirming the traditional supra-national Community Method mode of governance in EPL with the introduction of intra-governmental innovative methods in EPL such as the Open Method of Coordination (OMC) and soft-law. These innovative modes, together with the traditional mode of governance, can take forward the development of EPL so that it can better serve the needs of the European legal community in the future.
Business law and labour law are driving forces and core areas of European private law. New concepts and approaches are thus required that are not limited to civil law and that are different from those traditionally embraced by national private law. These new challenges regarding the current status and perspectives of European private law are discussed in this volume by sixteen highly reputed researchers from across Europe. The contributions concern various areas of European private law, including contract, property, company, competition and labour law. This book will be an invaluable source for all those working on European law and private law within Europe.
This book emanates from a duo-colloquium which explored the Europeanisation of private law in the context of efforts to consolidate the consumer acquis, the Draft Common Frame of Reference, the appointment of an Expert Group on a Common Frame of Reference in the area of European contract law, the passage of the Consumer Rights Directive and the proposed Common European Sales Law. This book, with fully updated contributions, critically reflects on whether the process of Europeanisation, which has shaped private law in the EU Member States, has now reached a significant turning point in its development, a point of punctuated equilibrium. Written by a team of leading authors, the topics covered will be of concern in all European legal systems and beyond.
In recent years the impact of human rights and fundamental rights on private law has risen in prominence and led to a whole series of detailed investigations. 'Constitutionalization of private law' is the flag under which most of the research on the increasing impact of national constitutional rights on national private legal orders is sailing. In the absence of a European Constitution, the constitutionalization of European private law suggests a process: constitutionalization instead of constituent power, demos, and the magic constitutional moment. The Charter of Fundamental Rights and the European Convention of Human Rights constitute the two pillars on which the transformation of European private law rests. This volume clearly demonstrates the change that has taken place, at the national and at the European level. Private law is no longer immune to the intrusion of fundamental and human rights. Whilst member states and the EU are driving the process by adopting ever more concrete and more comprehensive lists of human and fundamental rights, at the national, the European, and international level with overlapping contents, the true and key players in this development are the national and European courts. Contributions to this volume give this process a face and a direction, which is highlighted in the introduction by Hans-W. Micklitz.
The book is a must read for anybody interested in the future development of European private law. European Private Law News This volume contains a valuable collection of essays by a group of reputable academics, each dealing with a particular aspect of the development of a substantive law of contract at European level. The contributors have a variety of interests and perspectives. The topic is clearly of great current interest throughout the European Union and beyond. Peter Stone, University of Essex, UK European Private Law after the Common Frame of Reference brings together several interesting contributions from a distinguished group of scholars, and sheds light on the important issue of legal harmonization from an interdisciplinary and comparative perspective. Francesco Parisi, University of Minnesota, US and University of Bologna, Italy The Common Frame of Reference has several potential functions, some reconcilable, others mutually exclusive. Its size, its shape, its true legal nature and its content all remain contested. Modest or ambitious, toolbox or code-in-waiting? Its chameleon character is its strength and simultaneously its weakness, and equally the reason why it has attracted such attention. In this book the editors have assembled a veritable who s who in the field and it is a terrific read. Stephen Weatherill, University of Oxford, UK This book paves the way for, and initiates, the second-generation of research in European private law subsequent to the Draft Common Frame of Reference (DCFR) needed for the 21st century. The book gives a voice to the growing dissatisfaction in academic discourse that the DCFR, as it stands in 2009, does not actually represent the condensed available knowledge on the possible future of European private law. The contributions in this book focus on the legitimacy of law making through academics both now and in the future, and on the possible conceptual choices which will affect the future of European private law. Drawing on experience gained from the DCFR the authors advocate the competition of ideas and concepts. This fascinating book will be a must-read for European lawyers, private lawyers in the Member States and academics dealing with conceptual issues of the future of the national and the European private law. Advanced students in both law and international business will also find this book invaluable, as will US scholars interested in the US EU comparison of different legal orders.