http://www.law.ed.ac.uk/epln/ en-uk Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8924 I have lectured many times in lecture theatre 175 in the Old Quad over the past 50 years but never to such a cosmopolitan audience. The reason for this was that the symposium was being run in conjunction with a meeting of the Common Core project on interpretation on the following day (27 April) and national reporters were assembled for that. Fri, 03 May 2012 18:04:45 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8916 It seems that some of the English lawyers who are opposed to the idea that the Common European Sales Law (CESL) should apply in business-to-business (B2B) contracts are thinking that their case would be strengthened if the United Kingdom were quickly to ratify the United Nations Convention on Contracts for the International Sale of Goods (CISG). This is worth considering. Mon, 29 Apr 2012 12:06:42 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8913 The proposed EU Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession was approved by the European Parliament on 13 March. Final Council approval is expected before the end of the Danish Presidency. Fri, 19 Apr 2012 16:48:54 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8912 The question is prompted by some articles which have begun to come online in advance of a conference to be held at the University of Chicago on the proposed Common European Sales Law (CESL). Wed, 17 Apr 2012 15:49:57 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8911 The proposed Regulation on a Common European Sales Law (CESL) was discussed briefly on 12 April in the European Parliament’s Committee on the Internal Market and Consumer Protection (IMCO). Different views were expressed. Many were hostile to the proposal. It is clear that lively debates lie ahead. Mon, 15 Apr 2012 21:18:19 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8910 In its recent Discussion Paper on Formation of Contract (Scot Law Com DP 154, March 2012) the Scottish Law Commission makes extensive use of the Draft Common Frame of Reference: Principles, Definitions and Model Rules of European Private Law (DCFR) and the proposed Regulation on a Common European Sales Law (CESL) in reviewing the current law of Scotland and asking about possible reforms. It addresses a problem posed by the existence of these two recent instruments. Which should be used? Sat, 13 Apr 2012 12:30:00 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8879 The European Parliament held a public hearing on the proposal for a Common European Sales Law on 1st March. In his opening remarks Klaus-Heiner Lehne, Chair of the Committee on Legal Affairs and rapporteur for the Common European Sales law, said that this was a particularly important project – for the internal market and for the citizens – and that the Parliament planned to hold a series of hearings and workshops. The objective was an instrument which could be adopted and accepted. Wed, 06 Mar 2012 17:30:19 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8875 The UK government has launched a call for evidence on the proposed Regulation on a Common European Sales Law. The consultation paper can be found via https://consult.justice.gov.uk/digital-communications/common-european-sales-law . The consultation ends on 21 May 2012. It is a joint consultation by the Ministry of Justice, the Department for Business, Innovation & Skills, the Scottish Government and the Northern Ireland Executive. Thu, 29 Feb 2012 16:42:39 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8868 On 16 and 17 February a workshop took place at Tsinghua University School of Law, Beijing. This was the first meeting of the collaborators in a project which aims to investigate contract law in China and Europe in a comparative and cross-cultural perspective. The outcome of the project, funded by The China European School of Law, will be an edited book to be published in 2013. Thu, 22 Feb 2012 09:18:00 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8864 The ERA conference at Trier last week on “An Optional European Sales Law” was, in retrospect, more consolidation than revelation. There were papers on the political debate, on the legal basis and scope of the proposed Regulation, on the conflict of law issues and on the text of the proposed Common European Sales Law (CESL) itself. On the broad question of policy there was support from most speakers but obstinate opposition from BEUC, the European consumers’ umbrella organisation. Fri, 16 Feb 2012 11:41:40 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8853 Korrasut Khopuangklang, a postgraduate from Thailand, gave an interesting presentation yesterday on promises in Thai law, Scottish law and the Draft Common Frame of Reference (DCFR). Sun, 21 Jan 2012 14:04:18 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8844 Only four reasoned opinions objecting to the Proposal for a Common European Sales Law on the ground that it infringed the subsidiarity principle were received by the EU institutions within the 8 week deadline allowed under the Protocol on the application of the principles of subsidiarity and proportionality. Thu, 04 Jan 2012 22:38:31 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8840 The Feasibility Study on which the current Proposal for a Regulation on a Common European Sales Law was largely based was referred to in the recent Scottish case of Lloyds TSB Foundation for Scotland v Lloyds Banking Group plc [2011] CSIH 87; CA115/10. The reference did not, however, prove productive. Wed, 03 Jan 2012 13:09:06 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8836 The idea of opting out but remaining half in is not confined to such matters as saving the eurozone from disaster. Thu, 21 Dec 2011 22:27:38 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8824 I was at an interesting meeting in Brussels last Friday. It was at the Brussels offshoot of Maastricht University and it was a discussion on the proposed Common European Sales Law. The sub-title was “Have the right choices been made?” Tue, 12 Dec 2011 22:52:54 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8823 The House of Commons debated the question of the Common European Sales Law on 7 December and adopted the Draft Reasoned Opinion prepared by its Scrutiny Committee which has already been mentioned and criticised in this blog. Mon, 11 Dec 2011 22:34:11 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8819 The “28th regime” has been the name given to the idea of an optional contract law outside the laws of the Member States of the European Union which would be available for parties to choose as the law governing their contract. It was never a very accurate name as it ignored the fact that a single Member State, such as the United Kingdom, might have two or more systems of contract law. Thu, 07 Dec 2011 14:22:19 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8801 The European Scrutiny Committee of the UK House of Commons has concluded that the proposal for a Common European Sales Law “does not respect the principle of subsidiarity”. This is an astonishing conclusion. Mon, 27 Nov 2011 23:34:34 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8793 Oxford University Press has announced the forthcoming publication of an English language version of the new Max Planck Encyclopedia of European Private Law. The available information, including sample entries – see http://ukcatalogue.oup.com/product/9780199578955.do – is enough to whet the appetite. Tue, 21 Nov 2011 22:13:04 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8790 The European Law Institute has opened its office in Vienna and, to mark the occasion, is staging, on 17th November, a public presentation of the organisation and the work of the secretariat. The indefatigable Viviane Reding, Vice-President of the European Commission and EU Commissioner for Justice, Fundamental Rights and Citizenship, will be there to lend support. Thu, 16 Nov 2011 10:49:56 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8788 At a conference in London on the EU contract law project a few years ago I found myself standing next to a stranger. I introduced myself - “Eric Clive, Edinburgh University”. He replied “Thismus Bestopt”. I learned his real name later but I will always think of him as Thismus. Wed, 15 Nov 2011 16:41:32 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8785 The new Czech civil code was approved by the Chamber of Deputies, the lower House of Parliament, on 9 November 2011. It consists of over 3000 articles and covers virtually the whole of private law, including the law of obligations, property law, family law, and succession law. There will no longer be separate commercial and civil codes. However, the code will not cover company law: there is a separate law on corporations. And it will not cover private international law: there is a separate code on that topic. Mon, 13 Nov 2011 12:06:37 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8784 In an unscripted part of her speech to the Warsaw conference on European Contract Law, delivered on 10 November 2011, EU Commissioner Viviane Reding quoted another speech delivered the previous day in the European Parliament by the UK's Deputy Prime Minister, Nick Clegg, as indirect support for the idea of a CESL. Sat, 11 Nov 2011 14:41:23 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8783 Another interesting point that emerged from the Warsaw conference on European Contract Law was whether the familiar, if not always satisfactory, EU technique of harmonising the domestic laws of Member States by way of Directive was at an end, at least in the field of private law. Sat, 11 Nov 2011 13:05:58 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8782 The two UK Law Commissions (of England & Wales, and the Scottish Law Commission), published a joint advice to the UK Government on the Common European Sales Law (CESL, or Cecil to the Law Commissions' teams over the last month) on Thursday 10 November 2011, within a month of the publication of the CESL proposal itself. Fri, 10 Nov 2011 23:36:43 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8781 The mood at this conference was more positive and constructive than at some earlier Presidency conferences on this subject. This was probably due partly to the fact that there is now a concrete proposal for a Regulation on the table and partly to the background economic situation. Fri, 10 Nov 2011 17:21:36 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8774 The Polish Presidency and the European Commission are organising a conference on European Contract Law which will be held in Warsaw in the next two days (9 and 10 November). I am in Luton airport on my way there now and hope to be able to report on the proceedings in this blog. Wed, 08 Nov 2011 11:35:40 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8773 Of all the bad arguments which have been used against the idea of a Common European Sales Law the slippery slope argument is probably the worst. In its typical form it goes something like this. If we accept an optional Common European Sales Law then we will get an optional European law on another type of contract, and then one on another type, and then more on further types, and then a compulsory law and, before we know where we are, we will all be under the jackboot of a uniform European contract law which ignores valued British traditions. This is bad in three ways. In a strong form it is simply an invalid argument. In a weaker form it is unappealing. And in any form it is based on unexamined assumptions which need to be examined. Sat, 04 Nov 2011 11:48:43 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8769 In the early 1860’s William McEwan, the Scottish brewer, found that his ordinary beer was not entirely suitable for export to the further outposts of the British Empire. So he developed McEwan’s Export, a brand more suited to the export market. It became very popular not only abroad but also at home. It did him and his company no harm whatsoever. The Common European Sales Law would operate in the same way. Tue, 31 Oct 2011 10:37:12 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8766 A review of the reactions on the web to the proposed optional Common European Sales Law suggests that it has been generally well-received. However, there are occasional references in the blogs to the argument that the law would not be understandable without a mass of case law on it and that the development of this would take “years of litigation”. How strong is this argument? Sat, 28 Oct 2011 10:53:02 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8764 The EU’s Council of Ministers approved the new Consumer Rights Directive on 10 October 2011. Member States now have two years to implement the Directive. The UK government has already indicated its intention to introduce a consolidated consumer rights Bill which would usefully bring together in one place various consumer protection provisions. Fri, 27 Oct 2011 11:23:04 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8760 The European Commission published its proposal for a Regulation establishing a European Sales Law optional instrument on 11 October 2011, a day earlier than expected (apparently to avoid the announcement being overshadowed by other Commission statements to be published on the 12th). Wed, 11 Oct 2011 13:54:13 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8759 Commissioner Reding (below) has called a press conference for 12.30 on Tuesday 11 October on which she will announce a proposal to bring more coherence to European contract law. It is thought that this will be the long awaited proposal for an optional instrument, expected to be a European Sale of Goods Law. Tue, 10 Oct 2011 19:13:45 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8756 In an experiment recently carried out by ‘mystery shoppers’ from the EU-supported European Consumer Centres' Network , the so-called shoppers attempted to make 305 cross-border purchases in 28 countries from websites which were pre-selected as being apparently friendly to cross-border purchasing. 94% of the orders were delivered (up from 66% in 2003) and 99% of the products were in conformity with the order and apparently fault free. Fri, 06 Oct 2011 19:55:38 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8753 Your correspondent learned at a conference in Berlin 22-24 September 2011 that the European Commission has indicated that it will publish a Proposal for a Regulation on a European Sales Law (?) on 12 October 2011.* This will be based on the drafts already published in May and August this year, and begin a process that may lead, finally, to an "optional instrument" or a "common frame of reference" for a European contract law. Thu, 28 Sep 2011 15:01:09 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8740 An article on page 1 of the business section of today’s Scotland on Sunday notes the fears of the Federation of Small Businesses (FSB) that the apparent opposition of the UK government to a Europe-wide optional instrument on contract law contradicts the government’s stated desire to see an export led recovery spearheaded by small and medium-sized enterprises. Mon, 18 Sep 2011 23:10:53 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8715 The UK government (specifically the Ministry of Justice and the Department for Business, Innovation and Skills) has asked the English and Scottish Law Commissions to advise on the potential advantages and problems of an Optional Instrument (OI) and the work undertaken by the Expert Group in the context of (a) consumer transactions and (b) business to business contracts with a focus on SME’s. The Commissions are to deliver their formal advice by October 2011. They plan to publish their advice. Mon, 07 Aug 2011 23:15:04 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8713 The name of this blog – European private law – itself implies a distinction between private law and public law but the distinction can be difficult and pernicious, as the current question of the mutual recognition of protection orders makes clear. Wed, 02 Aug 2011 12:26:25 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8690 The metaphor of the toolbox is widely used in the current debate on European private law. It has been criticised in the committee rooms of the House of Lords. It has been mocked in the great hall of the Sorbonne. It is still used. It has its delights and its dangers. It may be time to abandon it. Sat, 24 Jun 2011 10:37:32 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8687 In some of the later stages of the work of the Expert Group on European contract law the drafting committee worked with two of the Commission’s legislative drafters – or “legal reviewers”. They were good – so good that, if their colleagues are of similar standard, it is surprising that so much European legislation is so bad. I can only suppose that time constraints, political pressures and the dead hand of tradition (the pernicious “shall”, the sexist “he”) often get in the way. Tue, 20 Jun 2011 10:04:29 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8685 The Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 were made on 13th June 2011, laid before Parliament on the same day, published on the internet on the afternoon of 16th June and come into force on 18th June. All a bit of a rush, it seems. Except that those in the know have seen them coming for some time. They give effect to an EU Regulation of 2009. Sat, 17 Jun 2011 14:48:30 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8682 Representatives of the EU Parliament, Commission and Council, after a difficult “trialogue”, reached agreement late last Monday on the shape and content of the proposed Consumer Rights Directive. Although final approval is still required this is a major step forward. Consumers and businesses should both benefit from having clear and uniform pan-European rules on such matters as pre-contractual information rights and withdrawal rights in distance contracts. Mon, 12 Jun 2011 20:52:33 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8681 The European Parliament supported yesterday by a large majority (521 for, 145 against, 8 abstentions) the idea of an optional instrument in European contract law. It endorsed the Report by Diana Wallis responding to the Commission’s Green Paper on this subject. Fri, 09 Jun 2011 15:54:17 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8676 In his valedictory lecture the other night Zenon Bankowski mentioned the merits of metaphors for teaching purposes. If you give a class a metaphor – particularly if the class is composed of people from very different backgrounds – they are likely to read it in different ways and to throw these different meanings back into the discussion to stimulating effect. No doubt true. Tue, 06 Jun 2011 16:44:52 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8673 Yesterday saw the inauguration in Paris of the European Law Institute. First reports of the meeting are that it went according to plan, with formal speeches of support for the new institute, including a speech from Viviane Reding the EU’s Justice Commissioner. The first seat of the ELI will be in Vienna. This is entirely fitting as Christiane Wendehorst of the University of Vienna has put as much hard work as anyone into the institute’s foundation. Fri, 02 Jun 2011 15:32:52 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8670 Ross McDonald, who is on the editorial board of the European Review of Private Law, has asked me to publicise the following call for papers. Fri, 02 Jun 2011 10:50:56 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8660 The European Conservatives and Reformists group held a hearing in Brussels on 3rd May on the European Commission’s contract law plans. The group wanted to hear a range of views including those of the European Commission (given to the hearing by Vice-President Reding herself), those of representatives of small businesses and those of representatives of consumers. The European Contract Law Feasibility Study was published on the day of the hearing itself but the content of the actual text does not seem to have had much influence on the discussion. Tue, 16 May 2011 22:23:39 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8658 The European Commission’s press release on the publication of the text produced by the expert group on European contract law describes the text in various ways. First it is a “feasibility study on a future initiative on European contract law” – a name which defies acronymising. Interested parties are invited to send their feedback on “the individual articles drafted by the expert group” by 1 July 2011. Then it is said that the Commission will have to determine if and to what extent “the expert group’s text” can serve as a starting point for a political follow-up initiative on European contract law. And finally it is said that this study provides the EU institutions with “a toolbox” for any future EU initiative in the field of contract law. Thu, 11 May 2011 16:31:26 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8656 Below is the manifesto of the European Law Institute which was agreed at a meeting in Athens on 15th and 16th April. There is to be an Opening Congress in Paris on June 1st. Wed, 10 May 2011 11:04:12 +0100 Hector L MacQueen, Eric Clive and Laura Macgregorhttp://www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8653 The text of the articles agreed by the Expert Group on European contract law will soon appear on the European Commission’s website. Its publication will help to focus the debate on the best way forward in European contract law. It should help to show what one option – an optional law on sales transactions and related services – might look like in practice. Mon, 01 May 2011 19:07:36 +0100