Constitutional Values And European Contract Law

Author: Stefan Grundmann
Publisher: Kluwer Law International
ISBN: 9041127658
Size: 57.21 MB
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Two major developments in European Private and European Business Law come together when we speak about "Constitutional Values and European Contract Law". European Contract Law has become extreme¬ly dynamic over the last 10 years, both in substance and perspec¬tive: all core areas are considered now in legal science and in EC legislation, and there are even the prospects of some kind of codification. On the other hand, constitutional values and their impact on private law have been an issue of high concern in major Member States over decades, namely Italy and Germany, but as well the Netherlands - hence the strong presence of scholars and practising lawyers from these countries in this book. Constitutional values have, however, found their way to the EC level and the national discussions have inspired a European one, with three core values discussed: Fundamental Freedoms, fundamental rights and constitutional system building principles- such as the social welfare state or the rule of law. Their impact on private law can be sensed nowadays quite considerably also on the European level. These fundamental values are often seen as the ingredient, which renders European Private Law, namely European Contract Law, more responsive to social values or more "humane". For all these reasons, the book combines comparative law, EC Law and interdisciplinary approaches to the question "Constitutional Values and European Contract Law". Outstanding scholars from six Member States and beyond - quite a few also practising lawyers - discuss the issue and do so for the first time on such a broad and all encompassing basis.

The Emergence Of Eu Contract Law

Author: Lucinda Miller
Publisher: OUP Oxford
ISBN: 0191029645
Size: 30.23 MB
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The emergence of a pan-European contract law is one of the most significant legal developments in Europe today. The Emergence of EU Contract Law: Exploring Europeanization examines the origins of the discipline and its subsequent evolution. It brings the discussion up-to-date with full analysis of the debate on the Common Frame of Reference and the future that this ambiguous instrument may have in the contemporary European legal framework. One of the central themes of the book is exploration of the multi-level, open architecture of the EU legal order, and the implications of that architecture for the EU's private law programme. The analysis demonstrates that the key to understanding European contract law in the 21st century lies in adopting a perspective and mechanisms suitable for a legal order populated by multiple sources of private law. Legal pluralism is offered as a theoretical construct with the capacity to shape the future of European private law, shifting the analytical spotlight beyond the traditional, centralized, legislative means of regulation. In so doing, softer mechanisms are introduced for the governance of contract law; mechanisms that enable coordination between the different sites at which contract law operates. This reorientation in thinking about European contract law, indeed about Europeanization itself, enables the inevitable diversity and pluralism that is a feature of multi-level Europe to be captured within a framework that maximizes the opportunities for mutual learning and exchange across private law sites.

Financial Services Financial Crisis And General European Contract Law

Author: Stefan Grundmann
Publisher: Kluwer Law International
ISBN: 904113526X
Size: 61.98 MB
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Speculation is rife on the origins of the worldwide financial crisis of 2008, with a preponderance focusing on alleged shortcomings in corporate governance. This book offers a distinct yet complementary perspective: that the most useful path to follow, if we want to understand what happened and forestall its happening again, is through an analysis of contract relationships - specifically, banking contracts entered into in the financial services sector, considered under the rubric of contract law rather than company law. Because banking is the area of European contract law which is most thoroughly developed, banking contracts can be seen as paradigmatic of typical assumptions and shortcomings often examined in the more general debate on contract law. And indeed, the very thoroughness of European banking contract law makes it a promising ground on which to build effective preventive measures. In this book thirteen noted scholars, recognizing that modern contract law must take into account global markets and risks, consider banking contracts within networks and within mass transactions. Always attending to the long-term relationships that characterize financial services contracts, they focus on such cross-sector issues as the following: rule-setting and the question of who should best regulate and at which level; networks of contracts as the backbone of a market economy; the complex interplay between market regulation and traditional contract law; avoiding erroneous assumptions about the future development of prices; the passing on of the risk via securitization; rating relationships affected by conflicts of interests; remuneration problems; core duties of information and advice in an agency relationship in services; fiduciary duties of loyalty and care; types of clients and level of protection; differentiation in information available on various markets; and the question of enforcement.

The Constitutional Foundations Of European Contract Law

Author: Kathleen Gutman
Publisher: OUP Oxford
ISBN: 019102547X
Size: 46.54 MB
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Situated within the context of the ongoing debate about European contract law, this book provides a detailed examination of the European Union's competence in the field of contract law. It analyses the limits of Union competence in relation to several relevant Treaty provisions which potentially confer competence on the Union to adopt a comprehensive contract law instrument and the exercise of Union competence in connection with the operation of the principles of subsidiarity, proportionality and sincere cooperation. It also explores the viability of several alternative and complementary routes to the adoption of such an instrument, including enhanced cooperation, an intergovernmental treaty and certain American techniques. Setting forth an elaborate account of the context for this debate and its chronological development at the European level, this book charts the discussions relating to the European Union's competence to regulate contract law and offers a comparative analysis of the approach taken to the approximation of contract law in the American setting. Setting forth a detailed account of the context for this debate and its chronological development at the European level, the book charts the discussions that have occurred within and outside the EU relating to the transnational competence to regulate contract law. Situating European constitutional law within the continued debate about European contract law, it also reflects upon the contract law structure of the United States and examines the viability of alternative and complementary routes to the adoption of a comprehensive instrument of substantive contract law.

Fundamental Rights In European Contract Law

Author: Chantal Mak
Publisher: Kluwer Law International
ISBN: 9041126716
Size: 45.56 MB
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Our modern insistence on democratic social values has engendered an intense debate over the intersection of fundamental rights and contract law. In particular, case law in several European national jurisdictions has exerted significant pressure on traditional contract law instruments to conform more transparently with the fundamental rights enshrined in the EC Charter. This pressure is clearly evident in a number of societal areas subject to contract law, among them employment, housing, and privacy. It can even be argued, as this author does, that fundamental rights intermediate between politics and law. Taking its cue from many initiatives toward the development of a more coherent, even harmonised, European contract law, this book is the first major study to examine the following essential questions with detailed reference to actual judicial developments: • To what extent do fundamental rights affect contract law? • In which types of cases can fundamental rights be applied? • What does the explicit consideration of fundamental rights add to contract law adjudication? The author approaches the analysis along two different avenues: first, a comparative overview of developments in case law, and second, a more general theoretical view on the interaction between fundamental rights and rules of contract law which is tested against examples from various legal systems. The focus throughout is on developments in case law, because the impact of fundamental rights in contract law has been felt on the level of dispute resolution rather than on the level of legislation. Germany and the Netherlands are chosen because their judiciaries have been notable for their early and continuing attention to the theme, and England and Italy for perspectives on developments under common law and civil law systems respectively.

Constitutionalization Of European Private Law

Author: Hans-W. Micklitz
Publisher: Oxford University Press (UK)
ISBN: 0198712103
Size: 76.90 MB
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One of the most topical questions in the legal systems is whether and to what extent fundamental rights impact our rights and obligations in our contractual relations. The European Union has integrated the Charter of Fundamental Rights into the Treaties of Rome and Lisbon. This book highlights whether and to what extent fundamental rights affect the position of citizens generally and in various fields of law, such as private (contractual) law, labour law,financial services, intellectual property rights, and the judicial protection in courts.

The Many Concepts Of Social Justice In European Private Law

Author: H. W. Micklitz
Publisher: Edward Elgar Publishing
ISBN: 0857935895
Size: 74.20 MB
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'Does European regulatory private law offer a genuine model of justice for society? Beyond its initial libertarian focus on economic integration through the market citizen, might it now serve the social inclusion of the vulnerable? In the wake of Hans Micklitz's inspired and relentless pursuit of meaning within the ongoing constitutionalization of private law relationships, this rich collection explores the implications of new, specifically European, forms of access rights, which ensure (horizontally and vertically) enforceable and non-discriminatory opportunity for market participation.' Horatia Muir Watt, Columbia Law School, US This insightful book, with contributions from leading international scholars, examines the European model of social justice in private law that has developed over the 20th century. The first set of articles is devoted to the relationship between corrective, commutative, procedural and social justice, more particularly the role and function of commutative justice in contrast to social justice. The second section brings together scholars who discuss the relationship between constitutional order, the values enshrined in the constitutional order and the impact of constitutional values on private law relations. The third section focuses on the impact of socio-economic developments within the EU and within selected Member States on the proprietary order of the EU, on the role and function of the emerging welfare state and the judiciary, as well as on nation state specific patterns of social justice. The final section tests the hypothesis to what extent patterns of social justice are context related and differ in between labour, consumer and competition law. The Many Concepts of Social Justice in European Private Law will prove to be of great interest to academics of law, as well as to private lawyers and European policymakers.

Rules And Principles In European Contract Law

Author: SECOLA Conference
Publisher:
ISBN: 9781780685434
Size: 19.20 MB
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In its case law the Court of Justice of the European Union has acknowledged general principles of EU law, which have a constitutional status. In addition the Court of Justice has also recognised 'general principles of civil law', relying upon values which are traditionally rooted in the domain of private law. The pervasive use of principles, both in the case law of the Court of Justice and in other EU projects of 'soft ' and 'hard' law, challenges legal scholarship. Although the concepts of principles and rules have been widely discussed within the context of national legal orders, they need to be rethought at the European level, because the traditional view of a principle does not fit the European Union's constitutional architecture. This also applies to the general principles of civil law, for instance good faith. They also have to be redefined to be consistent with the European Union's legal order.The contributions in this book examine EU general principles and their distinction from rules both within the context of the European Union as well as of the Member States. Moreover, they focus on the relevance of EU general principles for contract law and of principles of civil law for a European contract law

Human Rights In Private Law

Author: Daniel Friedmann
Publisher: Bloomsbury Publishing
ISBN: 1847311881
Size: 30.67 MB
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Traditionally,the theory of human rights limited its application to the public domain, namely the relationships between individuals and public authorities. The great expansion of human rights legislation and concepts in modern national and international law has given rise to a major issue relating to their potential impact on private relationships. This book examines this important topic, which may revolutionize private law. It presents new approaches which strive to broaden the application of human rights to the private field on the ground that power can be abused and human rights can be infringed even when all parties are private. The subject is examined from theoretical and comparative perspectives by leading scholars representing a diversity of legal systems - the United States, Canada, England, South Africa, Germany and Israel. Among the contributors are Professor Todd Rakoff (Harvard), Professor Roger Brownsword (Sheffield), Professor Hugh Beale (Warwick) and Professor Ewan McKendrick (Oxford), Professor Ernest Weinrib and Professor Lorraine Weinrib (Toronto), Professor Christian Starck (Gottingen), Professor Andreas Heldrich (Munich) and others.

The Politics Of A European Civil Code

Author: Martijn Willem Hesselink
Publisher: Kluwer Law International
ISBN: 9041124101
Size: 20.76 MB
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With a significant number of claims having been brought under NAFTA Chapter 11 in the last 3 years, public and professional interest in this topic has been growing significantly. Quite simply, anyone doing business under NAFTA, or anyone representing a company doing business under NAFTA, must be completely familiar with the provisions of Chapter 11. Combining expert commentary with complete primary source materials and case law, Kluwer Law International's "Investment Disputes Under NAFTA" is the must-have resource for anyone planning - or already involved in - a Chapter 11 claim. NAFTA's Chapter 11, like many treaties, sets forth rules for arbitration. Current procedures have been developed, in part, as cases have arisen and been resolved. This book enables anyone interested in these procedures to know exactly the current state of the law. Only "Investment Disputes Under NAFTA" delivers: Article-by-Article explanations of the ins and outs of Chapter 11; a valuable collection of key case law that has been affected by Chapter 11; accurate and thorough cross-referencing to help you quickly and easily find all relevant material; and logical organization of all materials as well as a complete index and table of cases. This one-of-a-kind resource is practice based and user-friendly. It is the only product to collect the body of NAFTA jurisprudence. It also incorporates substantial references to decisions in other investment treaty cases, decisions by mixed claims commissions and other arbitral bodies, Iran-U.S. Claims Tribunal jurisprudence, and International Court of Justice decisions. Kluwer Law International's "Investment Disputes Under NAFTA" also contains charts presenting valuable information such as the arbitrators in each case, the rules under which the arbitrations have been conducted, and the remedies granted in each particular case