| Welcome and updateHector MacQueen 18 February 2009 12:00 Welcome to the European Private Law News blog of the Edinburgh Law School. We aim to report and comment on developments in European Private Law, having in mind mainly an audience of lawyers in Scotland; but we hope also to convey word of relevant developments in Scotland to those elsewhere. Read more...Comments (0) |
| The revised and expanded Outline Edition of the Draft Common Frame of Reference (DCFR) is now published and available in book form. See Hector's entry for 20 February for more details. Read more...Comments (0) |
| The uncorrected minutes of evidence on the Draft Common Frame of Reference taken before Sub-Committee E of the House of Lords’ EU Committee on 25 March 2009 are available at http://www.publications.parliament.uk/pa/ld/lduncorr/eue250309ev3.pdf. Read more...Comments (0) |
| On 12 May Lord Hoffmann gave a brilliant talk in the Law School on the case of the Achilleas (Transfield Shipping Co Inc v Mercator Shipping Inc [2008] UKHL 48). In that case the House of Lords recast the English law on damages for breach of contract. The purpose of this note is to ask how such a case might have been decided under the model rules of European private law in the Draft Common Frame of Reference (the DCFR). Read more...Comments (0) |
| The action moves to ScandinaviaEric Clive 24 September 2009 14:25 There is to be a conference at Aarhus on the Unification and Harmonization of International Commercial Law on 19th and 20th Cctober 2009. See http://www.asb.dk/article.aspx?pid=21229. The questions suggested for discussion by the speakers include the preferred methods of harmonisation or unification and whether there might be unintended consequences of some of the efforts currently underway – such as conflicts between different instruments or methods. Read more... |
| Towards a European Law InstituteEric Clive 04 November 2009 10:42 At a meeting held at the rather impressive Stockholm Centre for Commercial Law on 23 and 24 October further progress was made towards the formation of an unofficial pan-European body of law faculties, research centres, individual legal scholars and others with an interest in research into, and the development of, European public and private law. Read more...Comments (0) |
| This was the title of an interesting contribution to the Stockholm conference by Paul Abbiatti, Legal Consultant, Member of the International Chamber of Commerce. His answer in two words was “Maybe yes”. Read more...Comments (2) |
| The first step is for the UK and the tiny number of other EU countries which have not yet ratified the Convention on Contracts for the International Sale of Goods (CISG) to ratify it. This was the frank and sensible advice of Professor Johnny Herre, Stockholm School of Economics, in his talk to the Stockholm conference. Read more...Comments (0) |
| What is the relationship between a European Common Frame of Reference and other global or European private law instruments? We have CISG, PICC, PECL, ACQP and now DCFR and, eventually, CFR. Is it all getting excessive? Read more...Comments (0) |
| The DCFR and the CISGEric Clive 24 November 2009 13:21 In a clear, cogent and beautifully delivered speech to the Stockholm conference Professor Ingeborg Schwenzer of the University of Basel addressed the topic “Drafting new model rules on sales: CFR as an alternative to the CISG?” The speech was an impressive one which made many good points and provided much food for thought. Read more...Comments (0) |
| Professor Stefan Vogenauer of the University of Oxford spoke at the Stockholm conference on the theme “CFR and UNIDROIT principles of international commercial contracts: coexistence, competition or overkill of soft law?” The answer to the question across the whole range of contracts must surely be coexistence. The instruments are designed to serve different purposes. Professor Vogenauer’s view was, however, that for an optional instrument for commercial contracts there was no need for a CFR in addition to the Unidroit Principles. Read more...Comments (0) |
| In a recent judgment the Swedish Supreme Court made express reference to the DCFR, thus being the first European supreme court to do so. The unanimous judgment was delivered on 3 November (case nr. T 3-08, 3 November 2009). Read more...Comments (0) |
| I have just been reading the most interesting paper by Steven Walker on the Renaissance of Scottish International Arbitration to which Scott Wortley kindly provided this link in the ECCL blog. The Arbitration (Scotland) Bill 2009 (which has passed all its stages in the Scottish Parliament and is now awaiting Royal Assent) is a big step forward from the procedural point of view, but more could still be done. Read more...Comments (2) |
| Rome I Regulation in forceEric Clive 17 December 2009 16:28 The Rome I Regulation comes into force today, 17 December 2009. It determines which law applies to contracts having connections with more than one country. It is of both direct and indirect significance for European private law. Read more...Comments (2) |
| At the hearings of commissioners designate before the European Parliament on 12 January, Mrs Viviane Reding, the Commissioner Designate for justice, fundamental rights and citizenship, gave a most impressive performance. Read more...Comments (0) |
| Lord Goldsmith’s evidence to the Chilcot Inquiry provides food for thought on the proper role of subsequent conduct in the interpretation process. As in the case of prior negotiations there is here a dividing line between United Kingdom law and general European private law and international commercial law. Read more...Comments (0) |
| Aberdeen meeting on DCFREric Clive 07 February 2010 19:46 The Scottish Association of Comparative Law and Aberdeen University Law School held a session on the DCFR in Aberdeen on Friday. The session was organised by David Carey-Miller and Leone Niglia and opened by Margaret Ross, the head of school. It was attended by participants from Aberdeen, Dundee, Edinburgh and Glasgow. Read more...Comments (1) |
| Rome 1 and assignmentEric Clive 10 February 2010 14:55 Emails are flashing around on a question which was left outstanding in the Rome I Regulation on the law applicable to contractual obligations. The question is which law should govern the effectiveness of an assignment against third parties and priority between assignees. The matter is to be discussed at a private law forum in Glasgow University tomorrow evening (5 pm in the Walker Room of the Stair Building), when Elizabeth Crawford and Janeen Carruthers will speak, and at a meeting in London being organised by Roy Goode for 4 March. Read more...Comments (1) |
| Douglas v Glenvarigill Co Ltd [2010] CSOH 14 is a classic sale of goods case about a defective car and the buyer’s right of rejection, but is also noteworthy as the first Court of Session discussion, albeit brief, of the consumer’s repair and replacement remedies under the Consumer Sales Directive. Read more...Comments (0) |
| The Scottish Law Commission, after extensive consultation, has published its eighth programme of law reform. It is a full and interesting programme, including for example, a review of the law of homicide, the criminal liability of partnerships, compulsory purchase and heritable securities. The focus of this blog entry is only on those aspects of particular relevance to developments in European private law. They are significant. Read more...Comments (0) |
| European or global private law?Eric Clive 16 February 2010 13:20 If we take a long-term view and ignore certain political and transitional difficulties (and it is admittedly a big IF) it is easy to answer the question “Why European private law rather than national private laws?” For a single internal market to operate with 28 or more different private laws on such matters as contract, delict and movable property is wasteful, inefficient and non-competitive. It does not make sense. We simply do not need so many laws. To answer the question “Why European private law rather than global private law?” is more difficult. Read more...Comments (0) |
| The new EU Vice President for Justice, Fundamental Rights and Citizenship, Viviane Reding, renewed her commitment to the establishment of a European contract law in a speech in Brussels on 24 February 2010, arguing that it would be a tool to help the European economy out of recession. Read more...Comments (0) |
| Promotional prizesEric Clive 02 March 2010 22:42 A business sends a letter to a consumer undertaking to pay a prize if the consumer fills in and returns a claim form. The consumer does so. The prize is not paid and the consumer raises an action for payment. How should this situation be analysed for the purposes of European private law? Read more...Comments (0) |
| Terms applyEric Clive 03 March 2010 11:15 The best thing I have seen on television in the last week was a short commercial for discounted cinema tickets which said “Terms apply”. Five thousand Hallelujahs! Until now in such contexts I have seen only the ghastly, pleonastic “terms and conditions apply”. Now somebody, when space was tight, has seen the light. It is unnecessary to use both “terms” and “conditions”. Read more...Comments (0) |
| This was the title of an excellent presentation last night by Laura Macgregor, the Director of the Edinburgh Centre for Commercial Law to a joint meeting at Edinburgh University of the Scottish Lawyers European Group and the Europa Institute. She glanced into the past – to explain the background to, the nature and purpose of, and recent developments relating to, the DCFR – before glancing into the future. She thought the DCFR was likely to be highly influential in the ongoing reform of Scottish private law and as the basis for an official CFR which would function as a toolbox or dictionary for EU legislators. She noted that an opt-in instrument was still high on the agenda, and would be potentially useful, but thought that any talk of a European civil code was very premature and something of a red herring. Read more...Comments (0) |
| The DCFR in Dundee and RomeEric Clive 17 March 2010 10:51 I spoke on the DCFR at a seminar in Dundee last Wednesday and at an enormous congress in Rome on Saturday. At both there seemed to be interest in, and support for, the DCFR project. The seminar in Dundee was followed by an excellent meal in an Italian restaurant. So there was that in common too. Read more...Comments (0) |
| Your correspondent has belatedly caught up with a failed attempt in the now defunct (judicial) House of Lords to use European private law texts to unseat a rule of English law on the interpretation of contracts. Read more...Comments (1) |
| In a speech at the European Universities Institute in Florence on 10 April 2010 Viviane Reding, the Vice-President for Justice Freedom and Security in the European Commission, gave her support to the idea of a European Law Institute carrying out academic research and judicial training in European law. Read more...Comments (1) |
| The European Commission published its plan for justice, freedom and security over the next five years on 20 April 2010; this, it appears, includes an optional European contract law instrument and a European debt "attachment" process. Read more...Comments (1) |
| Johnnie MacLeod has drawn my attention to an article in the German press on the proposed recasting of the Late Payment Directive (Dir 2000/35/EC). Interestingly the focus of the article is on the legal effects – indeed on legal theory - rather than on the commercial effects of the proposal. The article is based on evidence given by Carsten Schäfer of the University of Mannheim to a recent hearing of the Justice Committee of the German Parliament. Read more...Comments (0) |
| Yesterday I attended a meeting of an advisory group on interpretation set up by the Scottish Law Commission to assist it in its review of Scottish contract law in the light of the DCFR. The group included many experienced Scottish commercial lawyers, both advocates and solicitors. Read more...Comments (1) |
| Nils Jansen’s new bookEric Clive 26 May 2010 21:59 Nils Jansen is a serious and thoughtful contributor to the great debates on the harmonisation of European private law. I had a good conversation with him in a bus at a conference in Paris. Although he and I seemed to be on opposite sides at the conference, we had some ideas in common about desirable features in a work like the DCFR. So I looked forward to reading his new book. It did not disappoint. Read more...Comments (0) |
| A correspondent has drawn my attention to an article in EuropeanVoice (17 June 2010) on a paper soon to be presented by Viviane Reding, the European Commissioner for Justice, on European contract law. The author of the article, Jim Brundsen, sets out some views on the idea of an optional instrument – the so-called 28th system - even before the Commissioner’s paper is published. This seems premature. It is normally better to read a paper before commenting on it. Perhaps because of that the views are strange. Read more...Comments (0) |
| The European Commission has today published a new "Green Paper on policy options for progress towards a European Contract Law for consumers and businesses". Read more...Comments (0) |
| I have recently acquired – rather belatedly, because it has been out for some time – the Commentary on the Unidroit Principles of International Commercial Contracts (PICC) edited by Stefan Vogenauer and Jan Kleinheisterkamp and published by Oxford University Press. It is a terrific book and will be near my right hand from now on. But I was startled to read in paragraph 36 on page 16 that “The PICC display a certain emphasis on social welfarism that has, for better or worse, gone out of fashion …” Read more...Comments (0) |
| One of the themes of the setting-up of the expert group was transparency. Transparency should not mean invisibility. So here is a brief report on what has been happening and on how to find out more. Read more...Comments (0) |
| If OK for UK why not for EU?Eric Clive 27 October 2010 14:34 I refer to the venerable argument that as Scotland and England have had different contract laws for hundreds of years and as this has not prevented or hindered the functioning of an integrated UK market there is no need for harmonising European contract laws for internal market purposes. Read more...Comments (2) |
| I have just sent off my response to the UK government’s call for evidence and views on the European Commission’s Green Paper on policy options for progress towards a European Contract Law for consumers and businesses. The consultation period closes on 26 November 2010. Read more...Comments (0) |
| On 16 December there was a symposium, organised by the Scottish Government and the Law Society of Scotland, on the topic “Good for Scottish law, Good for Scottish Commerce? Options for Reforming Contract Law across the EU”. The aims were to contribute to the Government’s thinking on the options presented by the EU Commission and to assist stakeholders in determining whether and how they might wish to respond to the EU Commission. There was a rich debate, well chaired by Lindy Patterson QC, and these aims were surely achieved. Read more...Comments (0) |
| This is the text of the Vienna Memorandum mentioned in the last blog post. Some comments will follow in the next post. Read more...Comments (0) |
| The Ministry of Justice in London, the Scottish Government and the Northern Irish Department of Justice have produced a consultation paper on the question of the UK’s response to proposals by the European Commission on the revision of the Brussels I Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Read more...Comments (0) |
| Late Payment Directive 2011Eric Clive 07 February 2011 11:35 On 24 January the Council of the European Union adopted, following agreement with the European Parliament, the new Late Payment Directive, which will significantly tighten the rules on late payment in commercial transactions. The objective is to further discourage deliberately delayed payment and thereby help small businesses in particular and improve the functioning of the internal market. The new Directive will replace the existing Late Payment Directive (Directive 2000/35/EC). Read more...Comments (0) |
| The UK Ministry of Justice has published a disappointing response to the European Commission’s Green paper on European Contract Law. It is disappointing because it misdiagnoses the problem and favours options which would do nothing for British businesses or consumers. Read more...Comments (1) |
| These are the splendidly mixed colours and metaphors in the title to an article in the Archiv für die civilistiche Praxis (Feb 2011 at pp. 1-34) by Walter Doralt. The blue button is the term sometimes used to describe an optional instrument on European contract law, the idea being that a business would put on its website a blue button which the customer would click if prepared to contract on the terms of the instrument. Read more...Comments (0) |
| The United Kingdom Government has opted in to the European Commission's proposal to revise the Brussels I Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The proposal would repeal and replace the current regulation and attempt to resolve certain problems and make it more useful. Read more...Comments (0) |
| 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. Read more...Comments (0) |
| 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. Read more...Comments (0) |
| 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. Read more...Comments (0) |
| 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. Read more...Comments (0) |
| 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? Read more...Comments (0) |
| The slippery slopeEric Clive 04 November 2011 11:48 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. Read more...Comments (0) |
| New Czech civil code approvedEric Clive 13 November 2011 12:06
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. Read more...Comments (0) |
| 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. Read more...Comments (0) |
| 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. Read more...Comments (0) |
| 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). Read more...Comments (2) |
| 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. Read more... |
| 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? Read more...Comments (0) |
| 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. Read more...Comments (0) |
| Last week I attended an excellent conference in Rome on “The Making of European Private Law”. I will report on the conference later. This post is just to pass on some news which emerged on its fringes. Anna Veneziano has been appointed as the new deputy Secretary-General of the Unidroit Institute. Read more... |
| In preparation for the next meeting of the United Nations Commission on International Trade Law (UNCITRAL) to be held in New York from 25 June to 6 July 2012 Switzerland has submitted a proposal to the secretariat for the undertaking of work in the area of contract law. At the Rome conference last week on “The Making of European Private Law” Renaud Sorieul, the UNCITRAL Secretary, indicated that the secretariat would see a particular interest in this proposal. Read more... |
| To hand, thanks to the generosity of Antoni Vaquer Aloy, two massive tomos (amounting to 1880 pages all told) of commentary on parts of the DCFR from the Spanish perspective, entitled Derecho Europeo de Contratos: Libros II y IV del Marco Comun de Referencia and published by Atelier in Barcelona. Read more...Comments (0) |
| It is often said that English law does not have any generally applicable concept of good faith. This is true if the emphasis is on “generally applicable”, but the concept of good faith is certainly found in English law. There is a most impressive analysis of its role in the recent judgment by Mr Justice Leggatt in Yam Seng Pte Limited v International Trade Corporation Limited [2013] EWHC 111 (QB) Read more...Comments (0) |
| Some of the amendments suggested in the excellent draft report by Mr Lehne and Mr Berlinguer to the European Parliament’s Legal Affairs Committee were considered in the last post. Here are some brief comments on a number of the other amendments suggested. Read more...Comments (0) |
| On 19th March the Legal Affairs Committee of the European Parliament held its fifth, and probably its last, public hearing on the proposed Regulation on a Common European Sales Law (CESL). It heard from umbrella organisations (UAPME, BEUC, E-Commerce Europe, CCBE) representing the main likely users of the law and also from Professor Hugh Beale. Read more...Comments (0) |
