Europe needs a true business law

Abstract

This contribution is concerned with the status of business law in Europe, especially in the European Union. The first observation that may be made is that the civil law, which is dominant in Member States, was never made for business. Codification is at its heart and was always 19th Century anthropomorphic, geared to natural persons in what we now call consumer law. This also remained true for newer codifications like the ones in The Netherlands in 1992 and it is not different in recent Belgian proposals which still look for a unitary approach, basically the same for consumers and business or professional dealings unless some specific exceptions and clarifications are made for the latter and they are few. It follows that there was never a true commercial and financial law or law concerning professional dealings except incidentally as lex specialis to the civil codes and their intellectual systems, sometimes still expressed in commercial codes but they are fragmentary.

The common law of contract and movable property, by contrast, derived from commercial law and practice and was in business always more independent, even within the common law, more fact and need based and practical. That gave it an advantage in business, helped by equity, much missed in civil law where in commerce and finance the greatest differences with the common law are: modern commercial and financial structures are likely to be equitable in a common law sense.

This article explores how this divide is reflected in international business dealings, notably in the transnational commercial and financial flows in operations between professional participants and how the modern lex mercatoria or law merchant reacts in contract and movable property law to a more dynamic and forward moving legal business environment and what the approach should be in commercial nations in Europe including the EU. It is submitted that this law needs to be fundamentally separated from consumer law and that the accent shifts here to asset liquidity, risk management and transactional and payment finality.

Keywords: commercial law, financial law, business law, transnationalisation, modern lex mercatoria, the business contract, commercial movable property.