Strukturelle Schwächen in der Europäisierung des Privatrechts – Eine Prozessanalyse der jüngeren Entwicklungen (How Organisational and Structural Weaknesses Impacted the Harmonisation Process and What it Implies for European Private Law)
Rabel Journal of Comparative and International Private Law (RabelsZ), Vol. 75, No. 2, pp. 260-285, April 2011
27 Pages Posted: 11 Nov 2010 Last revised: 3 Mar 2013
Date Written: November 1, 2010
The European Commission (EC) has pushed for more harmonisation of private law in Europe. It has generously supported one network and currently seems to be preparing an optional regime of European contract law based on the academic draft ("Draft Common Frame of Reference", DCFR) published so far by the sponsored network. The process leading up to the current state has been marked by a number of structural and organisational weaknesses, amongst which the following are analysed in this paper: The persons involved have not decided nor even discussed what their draft should be used for. As a consequence, some parts aim for a restatement, others for an innovative new approach, others again for an academic paper and others for compromise in light of what may seem politically feasible; Enormous and frequently artificial time pressure has exacerbated the various problems; Discussion of different points of views has been avoided, undermining the legitimacy of the process; The more recent steps include the setting up of an expert group by the EC to prepare a draft of an optional European contract law which could be elected by the parties such that businesses might overcome the fragmentary state of contract law existing due to the divergent national mandatory rules on consumer protection. However, the new working group does not give rise to high hopes for a fresh or independent assessment of previous drafts; Lack of transparency and linguistic obstacles put this important process further at risk.
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Keywords: Harmonisation, Unification, European Law, European Contract Law, Optional Contract Law, DCFR, PECL, Lando-Principles, Regulatory Competition, Choice of Law, Comparative Law, Principles.
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