the optional instrument and social dumping

In October 2011, the European Commission will present a draft regulation for an optional European contract law. When parties opt to apply it (opt-in), it will set aside all national rules, including mandatory rules of the Member States. The level of consumer protection of the optional instrument will be very high. A choice will only be possible for the entire instrument, preventing parties from cherry picking. The result should allow businesses to overcome the current legal fragmentation in Europe, providing them with the possibility to contract with one single set of rules throughout Europe. In other words, the objective is to eliminate one of the obstacles the internal market currently faces.This Paper will show that the choice for the optional instrument, unlike what is sometimes discussed, will be exercised by businesses, not consumers. It will be argued that a broad scope is essential to secure the possibility of cost savings and efficiency gains. A limited scope will make the ...

The European Commission proposes to introduce an optional instrument on contract law. In this paper, it is argued that an optional instrument on contract law may result in social dumping. The argument is based on empirical research concerning the Societas Europea and a choice of law with respect to international contracts. The paper itself does not include empirical research, but merely an educated guess on the basis of other empirical researches.

JS Afr. L., 2008

European Review of Private Law

The purpose of this paper is a reflection of the position and function of common European rules in respect of limitations to freedom of contract, and more specifically on the role of mandatory and non-mandatory rules in general. After dealing with this more generally in the first part, the article addresses in its second part the different techniques restricting freedom of contract that we find in the PECL, the acquis communautaire, or the draft 'common frame of reference' (CFR). It is especially critical of antidiscrimination laws.

European Review of Contract Law, 2008

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.

Under EU law, contracts continue to play their traditional role within national systems, but no have been inserted into a new legal framework and have purposes beyond the traditional ones. The contract is no longer an isolated area, which governs the relationships between the parties, regardless of the context. Within the EU law, it can be observed on one hand a growing number of integrative interventions to protect the fundamental rights and the weaker parties (it is the case of the discipline concerning the consumers or protecting the SMEs). Thus, the EU law considers the legal subjects and their relationships from a global approach, no longer from the restricted perspective of the relations between the parties.

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 ...

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.