European Contract Law and Social Justice

European Law …, 2004

European Review of Contract Law, 2006

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During the years of the Great Recession we are witnessing a growing tension between the action of the institutions of the European Union (EU) and the rights and values embodied by the Conventions of the International Labour Organisation (ILO) and by the European Social Charter (ESC). The present contribution hence explores the legal relationship between the EU and those legal orders. In developing this analysis I adopt a positivist approach to the definition of “social justice”. Thus, I consider that this concept includes the respect of international standards of protection of social rights. The analysis is developed in six sections. In the first section, the contribution provides a brief historical account of the relationship between the process of European integration and the two legal orders mentioned before. Coming to our main topic, in order to identify the said tension we focus on two areas which are examined respectively in the second and third section of our contribution. In section two I analyse briefly the labour market reforms imposed on Greece by the so-called Troika of the EU Commission,the European Central Bank, and the International Monetary Found. Section three presents the doctrine developed by the Court of Justice of the EU regarding the relationships between fundamental social rights and fundamental freedoms of the EU internal market. The present contribution shows that, with respect to both areas, the effects of the EU action have been openly condemned by the supervisory bodies of the ILO and of the ESC. This gives rise to an unprecedented conflict between legal orders, with EU Member States caught between the respect of EU law and the obligations stemming from international agreements which they have ratified. The outcome of this conflict is particularly difficult to foresee. The contribution thus adopts a legal perspective, by looking, in the fourth section, at the possibilities offered by the EU legal order for a more genuine commitment to the respect of international standards of protection of social rights. Following the definition adopted in the contribution, such a commitment could prove invaluable in getting the EU on the track of social justice. However, in section five I also consider the other possible outcome of the conflict, exploring the legal effects of a reduced commitment of EU Member States to the respect of international standards of protection of social rights, in the form of a concerted withdrawal from relevant international agreements. Finally, section six is devoted to concluding remarks, on the background of the ongoing economic and political crisis of the EU. Those conclusions explore the possible role of international standards in increasing the « output legitimacy » of the EU.

2015

The paper identifies three different approaches to social justice in contract law, corresponding to a classical liberal model, an ordoliberal model and the model consistent with European post-war constitutionalism. (i) In the classical liberal model law enforces the outcome of the social conflict and attributes juridical strength to social strength: contract law protects the spontaneous result of social conflict and the execution of the contract as it has been freely stipulated. This model is based on conflict, whose result is embedded by law. (ii) Ordoliberals intended to complete the bourgeois revolution, which assured individual freedom, but missed to develop an order in which individual freedom could be developed. This is exactly what the state had to do with interventions necessary to prevent market failures, i.e. necessary to conform and functionalize economic freedoms for the survive of an economic system based on competition. In line with this, contract law has to hide and shape social conflict, adapting the behaviour of contractual parties to achieve the aims pursued by the legal system. Cooperation between the parties to the contract has to be encouraged, i.e. solidarity vis-à-vis the system. There is no direct intervention aimed at balancing social weakness and, if this occurs, it is only an indirect effect. Ordoliberalism is now the paradigma of EC-contact law, as it is made clear by the many references to social market economy. EC-contract law based on cooperation is a contract law without solidarity: social justice may be an effect of contract regulation, but it is only a indirect effect. (iii) European national constitutionalism reacted at the end of 2nd world war to the ordoliberal paradigm. Solidarity became a way of distributing wealth: vertical solidarity between the State and its citizens and horizontal solidarity among citizens. Vertical solidarity is the one assured by the welfare state: it shapes indirectly the market, but it does not affect the market. Horizontal solidarity affects the market in a way that is different from the idea of enhancing cooperation between market operators towards a result that is beyond their interests. Conflict is therefore recognised, but is shaped ensuring equality arms for the parties: law fights social weakness with legal strength and social strength with legal weakness. This is the core of a social justice model which is based on both conflict and solidarity.

European Law Journal, 2007

The World Trade Organisation (WTO) is currently in crisis after the dramatic collapse of the current round of multilateral trade negotiations: the Doha Development Round. Despite recent tentative statements by the US Trade Representative, Susan Schwab, that some progress is being made, it is difficult to know when or if talks will restart. On one level, the talks' failure can be attributed to members' inability to agree on appropriate percentage cuts in barriers to international agricultural trade. This is a linear conception, however, which sees the problem only through a 'trade lens', focusing as it does on the level of trade barriers and not the motivation for their imposition. In reality, the core difficulty is what should the legal relationship be between the liberalisation of international trade and broader non-trade concerns like the right to food? This is part of a much wider debate recognised by the editors of this book: the relationship between international trade and human rights. As the editors point out in the opening chapter, at an early stage this relationship was conceived as one of coexistence , where interaction between trade and human rights issues were marginal. Linkages were subsequently created initially by various trade embargoes instituted by the United Nations encouraging the use of trade measures to force an end to apartheid and other human rights abuses. The relationship has since become more complex as, for example, trade agreements adopt human rights obligations-for example the Doha Declaration on the Agreement on Trade Related Intellectual Property Rights (TRIPS) and Public Health-and human rights norms are recognised in trade dispute-settlement proceedings-for example to promote a right to health (Asbestos, 1 Hormones 2 and the recently released GMO 3 panel decision) or a right to preservation of the environment more generally (Shrimp/Turtle) 4. The editors therefore identify a complex symbiotic relationship between trade and human rights existing on five levels: the human rights and international trade relationship might be studied on a constitutional theoretical basis to indicate how its philosophical, cultural and legal foundations affect law at both an international and domestic level; jurisdictional overlap and cooperation between complementary and competing regimes/institutions reveals different problems; the place human rights obligations occupy in trade regulation, particularly the extent to which members are permitted to impose trade sanctions for human rights purposes; the reverse relationship also raises complications, that is what role trade norms should play, if any, in human rights regulatory mechanisms both in terms of their rules and their dispute-settlement proceedings; finally, whether private

in (2013) 9 European Review of Contract Law, pp.

Legal principles play an important role in any system of law. Following the European Court of Justice, the treaties of the European Union have embraced the concept of "principles of law", mainly as a means to guarantee individual human rights in public and constitutional law. More recently, however, the ECJ has come to recognize as "general principles" private law and contract law norms and values. Furthermore, the notion of "principles" has played a key-role in impressive unificationb projects which aimed to promote convergence of national laws in Europe, such as the PECL ("Principles of European Contract Law") and the DCFR ("Draft Common Frame of Reference"). The proposed "Commen European Sales Law" (CESL) also opens with a separate chapter dedicated to "general principles" of contract law. The article invites the reader to think more carefully and critically about the role played by alleged "principles" in the law generally, and in the evolving European law of contract in particular. Part II points out the instability and vagueness of the concept of a legale "principle". Part III presents an original theoretical model which aims to reduce the inherent vagueness surrounding the concept and the distinction between legal rules and legal principles. The model suggests that while principles do often differ from tules in other respects as well (e.g., in their substantive content or analytical structure), these common distinctions fail to capture the most essential difference between pricniples and rules, which lies in their sharply distinct political function. Part IV applies this generale thesis to the multi-level constitutional architecture of European law, coming to the conclusion that the principles of European private law are those common core norms which are shared by the laws of most Meber States (ius commune europaeum). Part V applies and illustrates this claim on the various instruments by which the Union has attempted to promote the unification of contract law across Europe. Part VI concludes by claiming that the EUropean principles, including that ofsubsidiarity, are best understood as a balancing device by which the Union adjusts the level of regulation between legislature and cours on the one hand, and between the supranation and national powers on the others.

European Review of Contract Law, 2006

The structure of the relationship between the individual and the community or the state is not definite at the European level. However this is a crucial point for the definition of the ground-rules in private law, considering, in particular, that European jurists normally ascribe to private law a constitutive role both in the functioning of the integrated market and in the construction of a European citizenship. In contract law the relationship between the individual and the community or the state is mainly designated by the definition of freedom of contract and its limits. On the scene of European law, however, the question of the limits of freedom of contract finds very different and contrasting solutions. This article identifies three different modes of approaching the question, which we have experienced and are currently experiencing in Europe; they are respectively described as the paternalistic, the social and the perfectionist model. Although recent developments in the harmonisation process show a propensity for a combination of the first and the third model, this paper argues that the social model still has a chance to achieve a key role in European contract law.

2012

This essay aims to stress two main points. The first point: The general framework of European law (and specifically, contract law) is derived from Ordoliberalism doctrines. As a consequence, the Legislative plays a primary role in constructing the law: and so, European legal order is more a constructed order than a spontaneous order (with reference to F. Hayek ’s perspective). The second point: Within European contract law, parties’ private autonomy is assumed as a general principle, but the assumption is that party autonomy should be respected unless there a good reason to intervene; and often this reason does exist. If we consider specifically the Draft Common Frame of Reference, the main thing to note is the importance of general rules as good faith and reasonableness: the consequence is the centrality of judge’s power as to the construction of legal content of these rules. Nevertheless, here arises a specific problem: which is, and which should be, the right balance between the ...

International Journal of Social Science & Interdisciplinary Research, 2016

This paper is an attempt to review the book "Democratic Justice and the Social Contract" by Albert Weale. The work gains prominence in the wake of increasing demands for expansion of the deliberative democratic mechanisms and democratic justice. Practice of democracy, in a broader sense, reflects the basic idea that the people are the contract makers and that they can amend the contract according to their will. Hence, the idea of democratic contract that is based on the idea of social contract plays a prominent role in constructing institutions that are mutually beneficial to everyone. But the functional forms of these institutions make us wonder whether they really reflect the social contract derived democratic contract. Functional forms of democracy reveal many loopholes that undermine its theoretical assumptions like equality of individuals, democratic power derived from people etc. To overcome these loopholes and to make democratic practice more nearer to the assumptions of social contract different aspects of democracy like representation, expansion of decision making power in a horizontal and vertical manner, democratic justice, social security from structural violence etc. needs to be addressed. Representational mechanisms of a democracy should provide deliberative opportunities to all the sections of the people and the practice of democracy should be based on the idea of democratic justice that should take care of the structural violence. Weale's "Democratic Justice and the Social Contract" is an attempt to look at the practice of democracy in the background of its similarities to social contract theory and it tries to define the just conditions that are required for individuals and groups to be part of such a contract.