| 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) |
| Compensable or compensatable?Eric Clive 10 March 2009 14:47 Editing is a dull job but occasionally the relentless chipping produces a tiny spark of interest. The spark last week was the question whether the national notes in the full version of the Principles, Definitions and Model Rules of European Private Law (the DCFR) should use “compensable” or “compensatable” to describe a type of harm or condition for which compensation could be obtained. 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) |
| In a wide-ranging Resolution, dated 25 November 2009 (P7_TA-PROV(2009)0090), on the Stockholm programme the European Parliament called for action on many legal fronts, including private international law, succession law, criminal law and matrimonial property law. In relation to contract law, the Parliament strongly advocated the immediate use of the DCFR and the development of an optional instrument. 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) |
| Having listened on several occasions to distinguished English and Scottish judges trying desperately to explain why negotiations cannot be looked at for the purposes of interpreting contracts I found it fascinating to hear another distinguished lawyer, Lord Goldsmith, the former Attorney-General, trying desperately to explain to the Iraq Inquiry today why the negotiations leading up to a UN Security Council Resolution had to be looked at in order to interpret that Resolution. 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) |
| 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) |
| 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) |
| 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) |
| Frankfurt ELI meetingEric Clive 23 March 2010 11:01 A further meeting towards setting up a European Law Institute was held at Frankfurt on 13 March. According to reports, it was a productive meeting. It was decided to proceed straightaway to the formation of a preliminary association which would carry the real work forward. The preliminary association has now been set up by Matthias Storme under Belgian law. Here is an excerpt from an English translation of the constitutive document. Read more...Comments (0) |
| There were three main topics on the agenda of this important conference – the CFR as a “toolbox” for improving EU legislation; the proposed Consumer Rights Directive; and the prospects for an optional instrument. Read more...Comments (1) |
| 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) |
| 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) |
| Edinburgh, Tilburg, HelsinkiEric Clive 12 June 2010 17:45 When I first came across ETHYRN in the headings to emails from the Law School I assumed it was the name of a colleague who was having a leaving party. I soon learned that it was the Edinburgh – Tilburg - Helsinki Young Researchers’ Network and that it was having a beginning party in the form of a conference on “Europeanisation”. 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) |
| 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) |
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For a while it looked as if initiatives for the formation of a European Law Institute might get bogged down in useless rivalry and competition. The Hamburg meeting convened by Reinhard Zimmermann on 22 and 23 June to try to find a common way forward is therefore greatly to be welcomed. The following account of the meeting and “Hamburg Memorandum” have now been made publicly available on the website of the European Law Institute. Read more...Comments (0) |
| There is a short article by Lord Mance, in English, in the latest issue of the Zeitschrift für Europäisches Privatrecht (3/201 at 457-462). He has high praise for the Draft Common Frame of Reference, which was “among the first purchases made by the new library of the new United Kingdom Supreme Court”. He hopes it will be consulted whenever any novel or difficult question arises before the Supreme Court in the fields of private law covered by the DCFR. 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) |
| The Scottish Law Commission has published its response to the Government’s request for evidence and views on the topics covered in the European Commission’s Green Paper on European contract law. It is an excellent response, providing both evidence and well-considered views. 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) |
| 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) |
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| 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) |
| 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. Read more...Comments (0) |
| 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. 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) |
| 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) |
| 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) |
| 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. Read more...Comments (0) |
| 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?” Read more...Comments (0) |
| Conference at TrierEric Clive 16 February 2012 11:41 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. Read more...Comments (0) |
| 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... |
| 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. Read more...Comments (0) |
| 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. 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... |
| This conference, held at the University of Roma Tre from 9-11 May 2012 under the guidance of Professor Luigi Moccia, covered a wide range of issues. There was plenty of discussion of the proposed Common European Sales Law (CESL) but that was by no means the only question discussed. Read more... |
| Christian von Bar reports that good progress is being made on the Korean translation of the Draft Common Frame of Reference (DCFR). Read more...Comments (0) |
| On 27 November an Interparliamentary Committee Meeting on the proposal for a Common European Sales Law was held at the European Parliament. The meeting brought together MEPs and Members of national parliaments. It was addressed by a number of powerful and impressive speakers. 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) |
