| 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) |
| Sellier, the publishers of the DCFR, have sent us the announcement below. Read more...Comments (0) |
| Book Launch - The Unauthorised AgentLaura Macgregor 20 February 2009 15:29 On 10 January 2009 a conference was held at the offices of De Brauw Blackstone Westbroek, Amsterdam, to mark the publication of a book on agency law in Europe. Its title is The Unauthorised Agent: Perspectives from European and Comparative Law, published by Cambridge University Press. Read more... |
| Privity of contract in the DCFREric Clive 20 February 2009 15:56
Is the lack of a general privity of contract provision in the DCFR a “startling omission”? Simon Whittaker thinks so. Read more...Comments (0) |
| European Contract Law - LiteratureLaura Macgregor 25 February 2009 13:48 Recent years have seen the emergence of textbooks devoted to Contract Law within Europe. This term would encompass existing EU contract legislation, the DCFR, and also national systems of contract law within Europe. The publication of these texts underlines the fact that the subject is now seen as a discipline in its own right. Read more...Comments (0) |
| The Scottish Law Commission is consulting stakeholders on whether in its forthcoming Eighth Programme of Law Reform it should consider the possibility of a draft contract code based on the Draft Common Frame of Reference (DCFR). 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) |
| 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) |
| I have just seen an advert for a new book edited by Hans Micklitz and Fabrizio Cafaggi on “After the Common Frame of Reference”. The blurb refers to the DCFR as “very much a backwards looking 19th century codification project”. Read more... |
| On 25th March, Sub-Committee E of the House of Lords’ European Union Committee (Chairman, Lord Mance) will be taking oral evidence on the Common Frame of Reference (CFR) from Jonathan Faull, Director General, Justice, Freedom and Security at the EU Commission. I hope that the Sub-Committee will take the opportunity to ask how the Commission sees the relationship between the CFR and the new proposal for a Consumer Rights Directive. Read more... |
| Jonathan Faull, Director-General, Justice, Freedom and Security, European Commission gave evidence by video link to Sub-Committee E of the House of Lords’ EU Committee this afternoon. These are some of the key points (not necessarily in the order in which they were made) from the first part of his evidence - before technical problems cut off my link. 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) |
| In preparing a new edition of my introductory text on unjustified enrichment and trying to make use of the DCFR for definitions and filling gaps in our law (as with PECL in MacQueen & Thomson on Contract and McBryde on Contract), I came across a problem that may be a gap in the DCFR and certainly shows the need for continuing work on the text. 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 House of Lords European Union Committee published a largely critical report on the DCFR on 10 June 2009. Read more...Comments (0) |
| Today is the last day for submissions to the Scottish Law Commission relating to their Eighth Programme of Law Reform. Submissions can be uploaded online here: http://www.scotlawcom.gov.uk/html/eighth_programme.php. Here you will find details of the issues carried over from the Seventh programme. You will also find a note of the projects which have been suggested to the SLC, and you will be able to comment on these. Readers of this blog may be interested in the comment below which I posted today (although the posts do not appear immediately on the site). Readers of this blog are urged to make their own posting - I'm sure those at the Commission would be grateful for a flurry of last minute posts! : Read more...Comments (0) |
| Two mighty tomes dropped onto the European Private Law News desk over the summer, and seem worth drawing to readers' attention. 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... |
| The Acquis Group welcomes the objective of the the EU Commission’s proposal for a Directive on consumer rights (the so-called horizontal Directive) – a significant and much-needed move towards a more coherent European private law – but is highly critical of the actual content and drafting. Read more...Comments (0) |
| At least five of the six volumes of the Draft Common Frame of Reference have been spotted and photographed in an office in Osnabruck, Germany. Read more...Comments (0) |
| The conference organised by the Swedish Presidency of the EU in Stockholm from 22nd to 23rd October was a great success. The main point was “to discuss the future of the common frame of reference focussing on the political way forward”. The conference was well-attended (Ministries of Justice from throughout the EU being particularly well-represented) and extremely well organised. The important message to emerge is that work on a “political” common frame of reference (CFR) will go ahead. Read more...Comments (0) |
| 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) |
| At the Stockholm conference on the Common Frame of Reference for European Contract Law (the CFR) there were contributions from representatives of the Swedish, French, Czech and Spanish Ministries of Justice, from the European Commission and from the European Parliament. Together they give a good idea of official thinking on the CFR. Read more...Comments (0) |
| Klaus-Heiner Lehne, the Chair of the Committee of Legal Affairs and Chair of the Conference of Committee Chairs of the European Parliament is a vigorous and impressive politician. There is a recent profile of him at http://www.europeanvoice.com/article/imported/strategic-thinker/66336.aspx. And he gave a vigorous and impressive speech at the Stockholm conference on the CFR. Read more...Comments (0) |
| The first professor to express a view on the DCFR at the Stockholm conference was Jan Kleineman of the University of Stockholm, who was moderator of the first full session. He criticised the drafting of the model rules as being too difficult and complicated. 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) |
| 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) |
| 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) |
| 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) |
| A warm welcome to Viviane Reding, the EU’s new Commissioner Designate for justice, fundamental rights and citizenship. This is a new post, reflecting the fact that the justice dossier is now to be split from home affairs. Read more...Comments (0) |
| 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) |
| 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) |
| 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) |
| 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) |
| Congress in RomeEric Clive 21 March 2010 21:51 The Rome congress mentioned in the last entry was unlike any other legal conference I have attended. It had over 200 speakers and 2000 participants. Often there were five “streams” running (including e.g. sessions on “diritto civile” and “diritto comparato e diritto internazionale”) at the same time in different halls. It was organised by the Consiglio Nazionale Forense and held in the magnificent Complesso Monumentale di Santo Spirito in Sassia, on the right bank of the Tiber, which doubles as an ancient monument and an ultra-modern conference facility. 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) |
| A press report yesterday suggested that the EU had adopted new rules which would enable divorcing couples to choose the law which applied to the grounds of divorce. The impression given was that this applied to the United Kingdom. Of course, this was a misleading and inaccurate report. The true situation is that there has been a proposal that new rules in 10 EU countries (not including the UK) would regulate the choice of the law applicable to the grounds of divorce. 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) |
| 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) |
| Expert Group on CFR set upHector MacQueen 06 May 2010 11:47 The Official Journal for 27 April 2010 (OJ L105, 27.4.2010, 109–111) reveals a Commission Decision to set up the Expert Group on the Common Frame of Reference in the area of European contract law, as foretold by Commissioner Reding and her team in various speeches in recent months. 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) |
| On Friday I attended the first meeting of the European Commission’s expert group on a Common Frame of Reference on contract law. The official press release issued after the meeting gives the membership of the group, which “brings together legal academics, people practising contract law on a daily basis like lawyers and notaries, as well as consumer and business representatives”. It could be mentioned that it includes a legal academic (Professor Torgny Håstad) who is also a supreme court judge. Read more...Comments (0) |
| 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) |
| For me the most enjoyable chapter in Micklitz and Cafaggi’s excellent new book on “European Private Law after the Common Frame of Reference” (published by Edward Elgar) was Martijn Hesselink’s discussion of the ideas of Friedrich Hayek. What has Hayek got to do with European private law? 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) |
| When a small group is set up to do an important task there will inevitably be suspicion. How were these people chosen? What are they up to? Are they going to try to undo advances made with great effort by other more representative groups or networks? Read more...Comments (0) |
| The short article by ten German professors mentioned in an earlier post has now appeared in today’s Frankfurter Allgemeine Zeitung. Read more...Comments (1) |
| Penalty clausesEric Clive 12 July 2010 17:20 The Scottish Government has launched a consultation on a draft Penalty Clauses (Scotland) Bill. The Bill would implement the Report of the Scottish Law Commission of May 1999 on this subject. Read more...Comments (0) |
|
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) |
| The UK Ministry of Justice, together with the Scottish Government and the Northern Ireland Assembly, published on 18 August 2010 a "Call for Evidence" about the European Commission's Green Paper on a European Contract Law (which was noted on this blog here on 1 July 2010). 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) |
| In a letter dated 6 September to Dirk Staudenmeyer, the new chairman of the expert group on a Common Frame of Reference in the area of European contract law, Simon Whittaker has resigned as a member of the group. 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 occasion was the 12th W A Wilson Memorial Lecture at the Old College on 7 December. The heavy boots were worn by many of those who had trudged through the exceptional snow to get there. The revelation – by Professor Lionel Smith of McGill University – was that the notion of a fund (such as a trust fund) as a “separate patrimony” is by no means alien to the common law. Read more...Comments (0) |
| A common refrain in the debate on the future of European contract law has been that there is not enough evidence that the existing divergences between national legal systems cause practical problems for businesses. The response by the Federation of Small Businesses to the current round of consultations should help to remedy that. Read more...Comments (0) |
| An end to gold-platingEric Clive 16 December 2010 09:09 “Gold-plating” EU Directives means improving them or adding to them for purposes of their transposition into UK law. In an announcement yesterday, Vince Cable, the Business Secretary, said that this practice would end. Directives would be copied out directly into UK law. 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) |
| Reinhard Zimmermann, Jürgen Basedow and colleagues have come out in favour of an optional instrument (OI) on European contract law as the option “which appears to be preferable at present”. They do not, however, recommend the adoption of any specific option. It is too early for that as the content of an OI is not known. They keep their powder dry and reiterate concerns about quality and process which some of their number have expressed in the past. 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) |
| |
| It all started quietly enough with an email from Niall Whitty, the editor of the Stair Memorial Encyclopaedia, asking some colleagues and collaborators whether anybody would object to the use of “benevolent intervention” as a term of art in the next Reissue instead of or along with negotiorum gestio. Read more...Comments (0) |
| In Scotland abandoned objects belong to the Crown. So, as the Scottish Law Commission has observed, “Each day Her Majesty becomes the owner of countless cigarette ends, crisp packets, drinks cans, chewing gum blobs, and numerous sagging sofas, worn-out washing machines and defunct cars”. At a symposium on Monday, Kenneth Reid suggested that this rule on abandoned property should be changed and that it should be possible for the finder to become the owner. Read more...Comments (1) |
| Christian von Bar is just back from a trip to South Korea. There was great interest in the DCFR. Before he went he was sent a questionnaire by a number of law professors with detailed questions about the DCFR for him to answer in preparation for discussions. I have seen that questionnaire. It is in German and Korean, with quotes from the DCFR in English. It gets down to specifics. Why was this solution chosen rather than that? Why were these words used? 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) |
| 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. 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 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. Read more...Comments (0) |
| Working with the EU draftersEric Clive 20 June 2011 10:04 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. 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) |
| 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. 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) |
| 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). Read more...Comments (0) |
| 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. 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) |
| 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. 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) |
| Warsaw conference IEric Clive 08 November 2011 11:35 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. Read more...Comments (0) |
| 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. Read more...Comments (0) |
| 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. 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 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. Read more...Comments (0) |
| 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. Read more...Comments (0) |
| The 28th regime arrivesEric Clive 07 December 2011 14:22 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. Read more...Comments (0) |
| 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. 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) |
| 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) |
| 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. 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) |
| 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 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. Read more...Comments (0) |
| 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) |
| 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) |
| 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. Read more...Comments (0) |
| 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). 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... |
| The proposed Common European Sales Law (CESL) was discussed at today’s meeting of the Council of the European Union (Justice and Home Affairs). Differing views were expressed but in the end the Presidency was able to conclude that there was support for looking at the substance of Annex I of the proposed Regulation - i.e. the actual proposed legal rules. Disagreement about the legal basis (which continued to some extent notwithstanding an opinion from the Council’s legal service to the effect that article 114 of the TFEU was an appropriate basis) should not stop this work going ahead. Read more... |
| As well as giving clear backing for the continuation of work at a technical level on the Common European Sales Law, the Council of the European Union at its meeting on 8th June also made important progress on other matters of European private law. 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) |
| 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) |
| The European Law Institute (ELI) has published a most impressive, and constructive, 300 page paper on the proposed Common European Sales Law (CESL). It takes the political aims of the proposal as given and, as is appropriate for such a body, concentrates on technical legal points designed to make the CESL fulfil its intended purposes more effectively. Read more...Comments (0) |
| The influential Internal Market and Consumer Protection Committee (IMCO) of the European Parliament held a hearing on the proposed CESL on 24 September. It exposed the weakness of some of the arguments which have been heard so far and ought to have helped committee members, and others, to form their own informed view on the proposal. Read more...Comments (0) |
| In a press release issued yesterday the CCBE welcomes the proposal for a Common European Sales Law and suggests that its scope should be widened. In particular it suggests that there is “ no reason to limit the scope of the CESL Regulation to cross-border sales and to SMEs”. Read more...Comments (0) |
| The Committee on Economic and Monetary Affairs of the European Parliament has submitted an opinion on the proposed Common European Sales Law (CESL). In essence it supports the proposal and makes some suggestions for further work and specific changes. Read more...Comments (0) |
| The UK government has published its long-awaited response to its call for evidence on the proposed Common European Sales Law (CESL). The call seems to have elicited little in the way of evidence but many opinions, most of them opposed to, or dubious about, the idea of an optional CESL. In the light of these views the government has concluded that it will not support the CESL. It does, however, want to support the development of the internal market and calls on the EU Commission to explore other ways of doing this. 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) |
| The European Scrutiny Committee of the House of Commons continues to argue that article 114 of the TFEU is not a correct basis for the proposed Common European Sales Law (CESL). This is in spite of the fact that article 114 is the obvious basis for a measure which, everybody admits, is designed to improve the functioning of the European internal market and in spite of the fact that its use has been endorsed by the Legal Services of both the Council and the European Parliament. Read more...Comments (0) |
| Little noticed amidst the opposing cries of joy and horror that have greeted UK Prime Minister David Cameron's speech on the future relationship between the UK and the European Union on 23 January 2013 was his renewal of support for the removal of domestic legal barriers to online trade throughout the single market. Read more...Comments (0) |
| By a Decision of 17 January 2013 (2013/C 16/03) the European Commission set up an Expert Group on a European Insurance Contract Law. Read more...Comments (0) |
| The BBC reports that the Court of Justice has ruled Ryanair to be fully liable to reimburse the costs incurred by a passenger who endured a seven-day wait for a Faro-Dublin flight delayed as a result of the ash cloud caused by the eruption of Iceland's Eyjafjallajokull volcano in April 2010. Read more...Comments (0) |
| I was pleased to see that the article on “The Elective and Automatic Theories of Termination at Common Law: Resolving the Conundrum?” by David Cabrelli and Rebecca Zahn in the Industrial Law Journal, Vol. 41, No. 3, September 2012 had been cited with approval by the Supreme Court in the recent case of Geys v Société Générale, London Branch [2012] UKSC 63. This welcome news item sent me off to read the article and the report of the case. They are fascinating. What is of interest for the purposes of this blog is to compare the Supreme Court’s approach with the approach taken in the Draft Common Frame of Reference (DCFR) and the Common European Sales Law (CESL). Read more...Comments (0) |
| The Draft Common Frame of Reference (DCFR) uses the expression “unilateral juridical act” to denote a statement, “whether express or implied from conduct, which is intended to have legal effect as such” (art. II.-1:101(2). This expression, however, caused puzzlement and misconceptions in some quarters. Some commentators purported not to understand it: others read more into it than was intended. So it was abandoned in the proposed Common European Sales Law (CESL). Read more...Comments (0) |
| How should the law deal with this problem? A contract or a unilateral deed contains an expression which seems to have a perfectly clear meaning. Circumstances change radically, in a way which was unforeseen and unforeseeable, and the application of that clear meaning would produce manifestly unjust and incongruous results. This was the problem facing the UK Supreme Court in the case of Lloyds TSB Foundation for Scotland v Lloyds Banking Group plc [2013] UKSC 3. 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) |
| Two committees of the European Parliament have been looking at the Proposal for a Common European Sales Law (CESL) this week. The proceedings in both represented satisfactory progress. 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) |
| IMCO on CESL brieflyEric Clive 22 March 2013 16:23 The European Parliament’s Internal Market and Consumer Protection Committee (IMCO) had a discussion yesterday on the proposal for a Common European Sales Law (CESL). Read more...Comments (0) |
| “The effect of error on the validity of a contract is one of the most uncertain areas in our private law.” This is how Lord Malcolm began his opinion in the case of Wills v Strategic Procurement (UK) Ltd. [2013] CSOH 26 – and who could disagree? Read more...Comments (0) |
