bluuebunny/crossref_metadata_2025 huggingface dataset:
Überlegungen zu dem schwierigen Verhältnis von EU-Privatrecht und nationalem Privatrecht
Authors: Micklitz Hans-W.
Published: April 2022

Abstract: The present essay starts from the premise that many private lawyers share my intuition that the research field has received relatively little attention. There is an abundant debate about the Common Frame of Reference and the Common European Sales Law; but the influence of primary Community law on private law as well as the visible European regulation of private law in all its facets have been neglected. The structuring of the different levels of relations between EU and private law discloses specific deficiencies. In the final part of the essay the reasons are investigated which may lie behind this limited attention.

Résumé: Le point de départ de cette contribution est un constat partagé par de nombreux privatistes – l’importance limitée du sujet. Alors que le projet de cadre commun de référence et le droit commun européen de la vente ont été abondamment débattus, tant l’influence du droit européen primaire sur le droit privé que la régulation européenne de toutes les facettes du droit privé ont été négligées. L’analyse structurelle des différents niveaux de la relation entre le droit de l’Union européenne et le droit privé met en évidence les défaillances spécifiques à chacun de ces niveaux. La dernière partie de l’étude est consacrée aux raisons qui peuvent expliquer l’attention limitée portée à ces questions.
The Belgian Civil Code: How to Restore its Central Position in Modern Private Law?
Authors: Samoy Ilse , Peeraer Frederik
Published: April 2022

Abstract: This essay addresses the status of the Belgian Civil Code in the twenty-first century. If the French revision process should have a successful outcome, Belgium will be one of the last countries to use a nineteenth century code. Does Belgium also need a revision of its Civil Code, or are there suitable alternatives? If a revision is advisable, a more fundamental question arises: How can a revised Belgian Civil Code cope with the stratification of private law and the multiple challenges every European legal system faces today?

The first part of this essay briefly elucidates the challenges for the Belgian Civil Code. The second part looks for suitable responses, including (but not limited to) a possible revision of the aforementioned code. The third part will argue that a modernization of the Belgian Civil Code is essential to restore its central position in private law. Since two of the key advantages of codes are their durability and their comprehensive scope, a modern Belgian Civil Code’s content should be limited to concepts, basic principles, and general rules. Any attempt to offer an overview of private law in its entirety in a single civil code can only be detrimental to those two key advantages. Because of the limited powers of a national legislature, the further development of the law can only result from collaboration between many different actors. An unremitting emphasis on the facts underlying hard legal questions and on the legal discourse is a necessary element of such a collaborative contribution.
The Attribution of Acts: Towards a Principled Assessment under EU and National Private Law
Authors: Sieburgh Carla
Published: April 2022

Abstract: Attribution of conduct almost necessarily touches upon the essence of a person, be it a private person (a natural person or a private legal person) or a public person. The result of such attribution may substantially restructure the essence of that person. Through attribution, a court moulds the person to whom the act is attributed into a shape that fits in with the court’s understanding of justice or of what a desirable result is. To prevent the ends envisioned by the court to drive it mechanically to attribute conduct to a person as if it were that person’s own conduct, a refined and balanced approach to attribution has to be adopted. The court must balance the interests of the person to whom the act is to be attributed, the interests of society as a whole, and the protection of the legitimate and reasonable expectations of third parties. With regard to the attribution of unlawful acts, the reasoning of the Supreme Court of the Netherlands in the case of Knabbel en Babbel may be a source of inspiration: The conduct of a person will constitute an (unlawful) act of another person if it is generally held in society that the conduct must be considered to be that other person’s act. Attribution of conduct of person A to person B as if it were person B’s own conduct can follow from the nature of A’s conduct and capacity, viewed against the background of relevant acts, omissions, and circumstances within the sphere of responsibility of B. Rather than proceeding on the basis of one principle that may be upheld or rejected in favour of another principle, it is advisable to start assessing attributability on the basis of all interconnected principles and interests. The assessment of attribution, which takes place in fields such as state liability, state aid, competition law, public procurement law, and the provision of Internet services, will thus reflect a broader range of arguments. Those arguments may derive from the fields of international and supranational laws just mentioned, from the branch in which a legal person is active, from private law doctrines regarding attribution (the protection of legitimate expectations within the ambit of agency law, the attribution of acts to a state, to a company, or to an employer on the basis of authority, the attribution of unlawful acts to a state, to an enterprise, or to an employer), and from human rights law. An approach is thus called for that seeks to reconcile respect for different aspects of persons: One may act as an official who observes the applicable regulations or as a person making use of one’s freedom of expression. This will improve the level of substantive justice achieved by the judgment.
English as Common Legal Language: Its Expansion and the Effects on Civil Law and Common Law Lawyers
Authors: Künnecke Martina
Published: April 2022

English has become the common language in a globalized legal world. However, the far-reaching consequences of the domination of key areas of the international practice of law by legal English are not yet fully understood and analysed. This article is concerned with an analysis of the expansion of legal English in global legal practice. This area has also been described as the ‘Law Market’, i.e. the area of activities of global lawyers in coping with the regulatory and legal frameworks in which international businesses function.’2 Much of the existing research into legal English as a common language is concerned with the development of legal English as a vehicle language for non-native English speakers in the sense of a lingua franca.3 The discussion is divided into either promoting the use of legal English as global language4 or pointing to its limitations ‘in that its legal terminology is premised on the tools of the (minority) common law system’5. This article aims to assess the interface and dynamics between lawyers using legal English as a common language as well as foreign languages in their legal work. This includes lawyers trained in the common law and/or civil law. Its aim is to gain a better understanding of global lawyering and communication in law and business relationships and to develop strategies for the internationalization of legal education and training in the UK.
Liability in the Medical Sector: The Breast-Taking Consequences of the Poly Implant Prothèse Case
Authors: De Bruyne Jan
Published: April 2022

The article deals with the liability of third-party certifiers in the medical sector and especially focuses on the role of TüV Rheinland in the recent Poly Implant Prothèse (PIP) breast implant case. The aim of the contribution is twofold. Firstly, it provides an overview of the different challenges that courts face when having to decide on the liability of certifiers of medical devices towards third parties. These, for instance, relate to the strict conditions under which certifiers can incur third-party liability under national law. Whether product certifiers can be held liable depends on the jurisdiction where the claims have been filed. Therefore, the PIP breast implant case is also interesting from a private international law perspective. Third-party certifiers can be sued before the courts of their domicile. Whether they can be brought before courts in other Member States depends inter alia on the interpretation of the place of the damaging event and the place of the damage. The difficulty to pinpoint these locations not only emerges in the field of jurisdiction but also manifests itself within the search for the applicable law as identical connecting factors are employed in that area of private international law. Secondly, the article examines the decisions that have been issued by national courts in the PIP breast implant case. Rulings in France and Germany denied compensation for patients who purchased the defective breast implants. The PIP case is currently pending before the European Court of Justice (ECJ). It thus remains to be seen what stance the ECJ will take and especially what the consequences might be for certifiers in the medical sector. Based on the analysis of these decisions, the contribution puts forth a number of reasons why the threat of liability seems the most effective way to guarantee that third-party certifiers issue accurate and reliable certificates. This in turn ensures that only safe medical devices are placed on the European market and safeguards the health of consumers. Future scandals with medical devices might in this way be prevented.
The Risk of Misusing Trusts: Some Lessons from the Italian Experience
Authors: Braun Alexandra
Published: April 2022

In the course of the past decade, several European legislatures have introduced devices into their legal systems that are functionally similar to trusts, including the Czech Republic, which has inserted a new set of provisions into its new Civil Code. Such developments are sometimes accompanied by fears that trusts might be misused or abused. Some of the concerns commonly raised about trusts are that trustees could misappropriate trust property to the detriment of beneficiaries, or that trusts could be used to shield assets from creditors, spouses or forced heirs of the settlor. Other fears are that trusts can be used for money-laundering purposes or to hide assets from tax authorities, and that third parties dealing with trustees may be unaware of the trust’s existence.

This article discusses Italy’s experience with trusts, where they have become a popular instrument used in a variety of contexts, often to make up for shortcomings of domestic laws. Its aim is to provide a brief overview of the nature of the trusts employed in Italy, and their purposes, and to discuss whether and to what extent some of the concerns mentioned above have materialized in legal practice, and how they have been addressed. The Italian experience demonstrates that not all concerns that are generally voiced against trusts necessarily arise in practice. It further shows that where issues have arisen concerning, for instance, creditor protection, the legal system is well equipped to tackle or mediate risks of misusing and abusing trusts. Italian courts have reacted effectively even though there is no national legislation providing Italian courts with special powers.
Who Has the Last Word?
Authors: Loth Marc
Published: April 2022

Abstract: This article analyses the process of judicial lawmaking in European private law as a continuous dialogue between the national courts and the European Court of Justice (ECJ). It addresses questions into the structure, the legitimacy, as well as the effectiveness of those dialogues. With regard to the first question, a recurring pattern of dialogue is described and explained, namely the practice of claiming the last word without actually using it. In answer to the second question the participation in dialogues between courts is justified from the perspective of finding an equilibrium between the national and supranational interests and values involved (as prescribed by the identity clause of Art. 4 sec. 2 TEU). In the third part it is claimed that the quality of the judicial dialogues can be enhanced by better reasoned judgments of the participating courts, in which they truly inform each other on their respective legal systems. Thus, the notion of a judicial dialogue can not only help us to obtain a better insight into the nature of the process of judicial lawmaking, it can also contribute to the improvement of the process itself.
Penalty Clauses and the Recent Decisions by the UK Supreme Court in Cavendish v. Makdessi & ParkingEye v.Beavis
Authors: Schelhaas Harriët N.
Published: April 2022

Abstract: The UK Supreme court recently rendered two important decisions on penalty clauses: Cavendish v. Makdessi and ParkingEye v. Beavis. The penalty clause is a controversial legal concept in Europe because it can result in high and unreasonable payment obligations. Most European legal systems agree that some form of protection against unreasonable penalty clauses is needed, but differ in the way penalty clauses are restricted. The most extreme approach is followed by English law, where a distinction is made between invalid penalty clauses and valid liquidated damages clauses. The new UK Supreme Court cases introduce new elements in English law in this respect. In this issue, the two decisions are discussed from a comparative perspective by a number of authors from different legal systems (English & Welsh, Belgian, German, Dutch, French, Italian, Swedish and Polish law).
The Principles of Effectiveness, Proportionality and Dissuasiveness in the Enforcement of EU Consumer Law: The Impact of a Triad on the Choice of Civil Remedies and Administrative Sanctions
Authors: Iamiceli Paola , Cafaggi Fabrizio
Published: April 2022

Abstract: In the conventional approach, rights were defined by EU law, while remedies were established by national legal orders. The situation has changed. The principle of procedural autonomy has been severely limited by general principles, such as the ones of effectiveness and equivalence. The power of Member States to define procedures, sanctions and remedies is strongly affected by the principles of effectiveness, proportionality and dissuasiveness.
Schockschaden und Hinterbliebenengeld nach deutschem Recht und Angehörigenschmerzensgeld nach türkischem Recht
Authors: Çevik Ipek
Published: April 2022

Zusammenfassung: Nach verschiedenen Unfällen wie der Flugzeugabsturz von Germanwings wurde in der deutschen Literatur heftig diskutiert, ob ein Angehörigenschmerzensgeld nach deutschem Recht benötigt würde. In 2017 hat der Gesetzgeber eine neue Regelung zum Hinterbliebenengeld im § 844 Abs. 3 BGB verabschiedet. Der vorliegende Artikel vergleicht das Angehörigenschmerzensgeld nach türkischem Recht mit dem Anspruch auf Schockschäden und Hinterbliebenengeld nach deutschem Recht. In diesem Zusammenhang werden die Ansichten in der Literatur in Bezug auf die Einführung eines Angehörigenschmerzensgeldes in das deutsche Recht dargelegt.

 

Abstract: After various accidents like the plane crash of Germanwings it was heatedly discussed within German literature whether a compensation for the pain and suffering of relatives would be needed in the German law. In 2017 the legislator passed a new regulation concerning the bereavement damages of relatives and dependants in § 844 section 3 BGB (German Civil Code). The present article compares the compensation for the pain and suffering of relatives according to Turkish law with the damage claim caused by shock and the bereavement damages according to German law. In this context, the views in literature on the introduction of a compensation for the pain and suffering of relatives into German law is being described.
The Law and Economics of Cyber Insurance Contracts: A Case Study
Authors: Visscher Louis , Nieuwesteeg Bernold , de Waard Bob
Published: April 2022

Abstract: We combine cyber risk literature with insurance law and economics literature to study cyber insurance contracts. We aim to explore to what extent current cyber insurance contracts contribute to social welfare, both theoretically and empirically. First, we discuss main trade-offs in insuring cyber risk within a theoretical framework. This framework also includes strategic behaviour of market participants and impediments for market growth that result from the complex dynamics of cyber risk. Subsequently, a case study in the Netherlands compares the theoretical expectations with the actual state of cyber insurance contracts, prices and market participants. The results suggest that insurers currently halt between two options: either a strategy of rigorous market penetration with easily accessible and attractive insurance products, or a strategy of significant hedging of correlated risks that reduces the potential of cyber insurance. We aim to assist lawyers, legal counsels and judges when drafting or reviewing actual cyber insurance contracts.

Résumé: Pour étudier les contrats de cyber-assurance, nous réunissons la documentation sur le cyber-risque, le droit des assurances et la littérature économique. Nous nous donnons pour objectif d’étudier dans quelle mesure les contrats de cyber-assurance contribuent à la protection sociale, aussi bien en théorie qu’en pratique. Nous évoquons d’abord les principaux choix à opérer en matière d’assurance des cyber-risques dans un cadre théorique. Ce cadre inclut également un comportement stratégique des participants au marché et des obstacles à la croissance du marché qui proviennent de dynamiques complexes du cyberrisque. Une étude de cas aux Pays-Bas compare ensuite les expectatives théoriques avec l’état actuel des contrats de cyber-assurances, des prix et des participants au marché. Les résultats indiquent que les assureurs hésitent entre deux options: soit une stratégie de pénétration rigoureuse du marché avec des produits d’assurance facilement accessibles et attractifs, soit une stratégie de couverture importante de risques corrélés qui diminuent le potentiel de la cyber-assurance. Nous souhaitons aider des avocats, des conseillers juridiques et des juges dans la rédaction ou la supervision de textes de contrats de cyber-assurance.
Breach of Contract and Damages for Non-Pecuniary Loss
Authors: Kryla-Cudna Katarzyna
Published: April 2022

Abstract: The purpose of this article is to investigate whether non-pecuniary interests of the parties should be protected in contract law and what should be the scope of such protection. The article sheds light on the theoretical framework of contract remedies and claims that the compensability of non-pecuniary loss is necessary for an adequate protection of the interests of the parties to a contract. It further investigates the policy arguments against the recoverability of non-pecuniary loss in contract law and argues that such arguments cannot be considered a sufficient justification for a bar to compensation of moral damages. Finally, based on a survey of case law from several European jurisdictions, the article provides insight into the kinds of non-pecuniary consequences that may arise from a breach of contract.

Résumé: L’objectif du présent article est de rechercher si les préjudices moraux des parties devraient être protégés en droit des contrats et quelle devrait être l’étendue de cette protection. L’article examine le cadre théorique des solutions contractuelles et soutient qu’il est nécessaire d’inclure le dommage moral afin de pouvoir protéger de manière adéquate les intérêts des parties à un contrat. Il recherche en outre les arguments politiques réfutant la recouvrabilité du dommage moral en droit des contrats et indique que de tels arguments ne peuvent être considérés comme une justification suffisante pour faire obstacle aux préjudices moraux. Finalement, en se basant sur l’étude de plusieurs affaires portées devant différents tribunaux européens, l’article donne un aperçu de sortes de dommages moraux pouvant provenir d’une rupture de contrat.
Policy, Politics and Aesthetics in Non-American Private Law: A Comparative Study of Contract Performance Interruption
Authors: Mcdougall Pascal
Published: April 2022

Abstract: In the United States, it is widely accepted that ‘policy,’ meaning conflicting societal values and interests that can be weighed, plays an important role in private law reasoning. However, in many other polities, including France, England, Quebec and English Canada which this article scrutinizes, the role of policy in private law is either strenuously denied or reduced to an exceptional consideration of social concerns under residual doctrines like good faith, abuse of right or unconscionability. As a result, full-blown and routine invocations of policy are still considered to be an exotic American feature and to be absent from these systems. In this article, I refute this persisting view and show that such policy arguments are as a matter of fact relied on by authoritative actors in France, England, Quebec and English Canada. Taking interruption of contractual performance following breach as a case study, I rely on cases and treatises from these four jurisdictions to produce an integrated repertoire of policy arguments that have been invoked for a series of related contract law questions. I thus provide the basis for the application of American private law insights in legal systems where they have largely been ignored. I suggest that there are important political and aesthetic stakes to this jurisprudential transplantation, in that it allows for innovative forms of contestation of marketbased normative reasoning and of the traditional professional styles adopted by non- American jurists.
Quandary of Smart Contracts and Remedies: The Role of Contract Law and Self-Help Remedies
Authors: Poncibó Cristina , Dimatteo Larry A.
Published: April 2022

Abstract: Smart contracts provide a quandary for contract law remedies. The self-enforcing nature of smart contracts implies that there is little possibility for breach and thus, little need or opportunity to apply contract law remedies. This article explores if this is really the case. It concludes that contract law remains applicable to smart contracts relating to the enforceability of its terms based on legality, public policy, and contracts policing doctrines. In such cases, post hoc judicial or arbitral claims remain likely and the dispute resolution bodies would seek to apply contract remedies. In order to diminish instances of litigation or arbitration the smart contract should include self-remedying or internal measures (remedies). The article divides internal measures into proactive and reactive measures. These measures should be considered in the drafting of a smart contract in order to diminish resort to contract remedies. In the end, contract law and contract remedies will remain important as default law. In addition, like smart contracts, some of contract law rules are immutable and cannot be made obsolete by blockchain technology.
Remedies for Inequality in Exchange. Comparative Perspectives for the Evolution of the Law in the 21st Century
Authors: Grebieniow Aleksander
Published: April 2022

Equality in exchange has long been a popular topic for comparative legal studies. The following article examines the legal remedies provided by Private Law for the instances of contractual imbalance in the twentieth and twenty-first centuries. Until recently, most studies on this topic were limited to the French, German and English legal systems. The present article looks instead at the so-called ‘derived legal systems’: specifically, those of Switzerland, Poland, Italy and the Netherlands. Each of these systems marks a new stage in legal evolution, distinguished by a constant striving for greater flexibility and certainty within the field of contractual relations.
Private Law, Conflict of Laws, and a Lex Mercatoria of Standards-Development Organizations
Authors: Contreras Jorge L.
Published: April 2022

Technical standards created by industry standards-development organizations (SDOs) enable interoperability among products manufactured by different vendors. Over the years, SDOs have developed policies to reduce the risk that SDO participants holding patents covering the SDO’s standards will disrupt or hinder the development and deployment of these standards. These policies, including commitments to license standardsessential patents (SEPs) on terms that are fair, reasonable and non-discriminatory (FRAND), gain transnational application given the international character of SDO activities and are most effectively interpreted and applied on the basis of private law (contractual) principles. However, SDO policies are typically embodied in an SDO’s governing documents, which are in turn regulated by the law of the jurisdiction in which the SDO is based. This somewhat arbitrary linkage of SDO policies to national and state law has created inconsistencies in their interpretation and threatens to spark jurisdictional competition in an unproductive race to the bottom. This article poses the question whether it would be possible to decouple SDO policy interpretation from the patchwork of national and state laws that purport to govern such policies in favour of a common lexicon of interpretive principles derived from the shared understanding of SDO participants: a ‘lex mercatoria’ of standardization.
Good Governance of Private Standardization and the Role of Tort Law
Authors: Verbruggen Paul
Published: April 2022

This article enquires into the potential of tort law to control private standardization and foster good governance in regulatory decision-making. Private standardization has been characterized as a political game of winners and losers: while for some firms it brings about opportunities for product development, innovation and market access, for others it means switching costs and barriers to trade. With so much at stake, firms have strong incentives to influence standardization and ensure that it meets their narrow private interests. This dynamic puts pressure on the integrity and quality of private standardization and has led policy-makers to require standards development organizations (SDOs) to adhere to good governance principles such as stakeholder participation, transparency and the use of state-of-the-art scientific research. Drawing on case law from the United States and Europe regarding the liability for negligent standardization, the article finds that tort law currently offers limited incentives for SDOs to comply with good governance norms. The degree to which compliance with such norms can be required appears to fundamentally depend on an ex post weighing of interests under the circumstances. This balancing, the article argues, should at least involve consideration of (i) the magnitude of risk private standardization is concerned with; (ii) the existing internal rules and procedures for private standardization; (iii) the costs concerned with the (re)organization of such rules and procedures; and (iv) the character and societal benefit of private standardization.
Assessing the Duty of Care for Social Auditors
Authors: Terwindt Carolijn , Van Ho Tara
Published: April 2022

This article analyses the appropriate duty of care under English tort law for social auditors towards third parties at risk of suffering damages from their negligence. After explaining the work of social auditors, the article considers whether the duty of care established for financial auditors is an appropriate one for social auditors. It concludes that a robust duty of care does exist for social auditors to guard against negligent audits that could harm workers at audited facilities. Due to differences between the financial and social audit, it further argues the duty of care for social auditors should be both broader than that required of the financial audit industry and non-delegable.
Reallocating Gains: A Systematic Approach to Disgorgement of Profits
Authors: Boosfeld Kristin
Published: April 2022

The article argues that a ‘bilateral’ conceptualization of disgorgement of profits provides appropriate solutions when gains have been made in violation of rights. For reasons of deterrence, it is usually clear that the defendant should disgorge (part of) his gain. The deterrence argument, however, does not explain why the claimant should receive it. The article develops a differentiated model considering both the positions of the right-holder and of the profit-maker. Its main proposition is that both should be put into the position they would have been in had the profit-maker made the gain in a lawful way. To this end, he would have had to come to an agreement with the right-holder regarding the use of the right. This hypothetical contract, the particulars of which are elaborated in this article, is used as a starting point to find appropriate solutions for the reallocation of profits.
17th Annual Conference on European Tort Law, Vienna
Authors: Bell Andrew J.
Published: April 2022

The following report outlines highlights from the 17th Annual Conference on European Tort Law, hosted by the European Centre of Tort and Insurance Law (ECTIL) and the Institute for European Tort Law of the Austrian Academy of Sciences and University of Graz (ETL) in Vienna, Austria, in April 2018. It recounts in brief the conference’s opening lecture on personality rights, key themes from the national reports on tort law development in 2017, and the conference’s special session on liability for railways, buses, and aeroplanes.
Overriding Mandatory Provisions and Arbitration: A Cadmean Victory for Commercial Agents?
Authors: Aschauer Christian , Klever Lukas
Published: April 2022

In a recent decision, the Austrian Supreme Court declared an arbitration clause invalid in the light of the European Court of Justice’s Ingmar decision since it was to be expected that the arbitral tribunal would not apply articles 17 and 18 of the Commercial Agents Directive. According to the Supreme Court’s reasoning, that is the case wherever the parties have chosen a lex causae for their main contract which does not contain provisions similar to articles 17 and 18 Commercial Agents Directive. In the view of the authors, such understanding of the commercial agents directive is neither required by the principle of effectiveness of EU law, nor is it justifiable under the regime of the New York Convention.
Passengers Are Not Automatically Responsible for Fines Imposed on Airlines Estonian Court Declares a Lufthansa Standard Term Unfair
Authors: Ginter Carri , Linntam Albert , Härginen Kadri
Published: April 2022

The standard terms of airlines foresee the semi-automatic reimbursement by passengers of fines imposed by national authorities on the airlines. In certain circumstances, this mechanism is contrary to Directive 93/13/EEC on unfair contract terms. Greater protection of consumer rights by national courts is needed
Private Enforcement as a Deterrence Tool: A Blind Spot in the Omnibus-Directive
Authors: Pavillon Charlotte
Published: April 2022

The Directive on better enforcement and modernization of EU consumer protection rules or Omnibus-directive does not acknowledge the deterrence function of private enforcement of EU consumer law. The article demonstrates that the balancing of the principles of effectiveness, proportionality and dissuasiveness requires more attention when it comes to ‘civil remedies’. Indeed, the Court of Justice of the European Union (CJEU) has in recent years put a clear emphasis on the deterrence function of the nonbinding effect of unfair contract terms, a civil sanction imposed by civil courts. These courts, however, are struggling with the implications of this function. They are actively searching for direction by referring new preliminary questions to the CJEU. Empirical research conducted in the Netherlands shows that Dutch district courts largely recognize their role as enforcer of EU consumer law. It also reveals that these courts consider the proportionality and the dissuasiveness of the sanction to be at odds when the gap left after the removal of an unfair contract term is not filled with national law.

European consumer law, sanctions, civil law, unfair contract terms, civil courts
An Optimal Conflict Rule for Assignment
Authors: Verhagen H.L.E.
Published: April 2022

In this contribution the proposal by the European Commission for a set of conflict rules for the third-party effects of cross-border assignments is critically reviewed, with special reference to securitizations and similar receivables-based transactions. The conclusion is that the current version of this proposal is too rigid to provide the optimal solution for the future European capital market. Such optimal solution can only be reached when party autonomy is allowed to prevail.
Choice of Law in International Premarital Agreements. A Comparison Between the US and the European System (Part II)
Authors: Terradas Beatriz Añoveros
Published: April 2022

I have recently published an article in this journal entitled ‘Jurisdiction Clauses in International Premarital Agreements: a comparison between the US and the European system’. The article analyses questions of jurisdiction that arise when contemplating international premarital agreements. It advises giving the parties freedom to choose the competent court, while establishing a series of limitations in order to protect the vulnerable party. It also promotes the idea of extending the analysis to questions of choice of law, which is the aim of the study I present now, conceived as a second part or continuity of the previous article. I will be using the main results achieved in the last article, and some ideas may reappear in this study as I also want it to stand alone.
Private Governance and the Potential of Private Law
Authors: Ulfbeck Vibe , Hansen Ole , Petersen Clement Salung
Published: April 2022

Private governance can be defined as the phenomenon of private actors pursuing public goals and interests in the exercising of traditional state functions in the forms of rulemaking, implementation and dispute resolution. Private governance in these three ‘columns’ can have different sources and can be either ‘state driven’ or ‘market driven’. Whereas implications of private governance have to some extent been explored in public law, this article analyses the legal implications in private law and suggests a specific systematic approach. As examples, we focus on the supply chain as a market driven private governance system and the private provision of universal services as a state driven private governance system. The analysis shows how such private governance systems pose an immense challenge to the existing doctrines of private law and create considerable legal uncertainty. The analysis also leads to two more precise findings: (1) a private law analysis can benefit from focusing on the interplay between private governance in the three columns, and (2) the implications in private law seem to be of a different nature in the market driven as compared to the state driven private governance systems analysed.
Introduction to the Contributions on Nordic Contract Law: The Restatement of Nordic Contract Law
Authors: Håstad Torgny
Published: April 2022

The Nordic countries have had a close co-operation with joint legislation in many fields since the beginning of the 20th century. Above all, it has resulted in a common contract law. For the benefit of non-Nordic lawyers and future Nordic cooperation a Restatement of Nordic Contract Law was published in 2016.
Anti-Suit Injunctions in European Transnational Litigation: Past, Present and Post-Brexit Future of an Unusual Remedy
Authors: Altun Kahraman
Published: April 2022

Anti-suit injunctions are the frontline in the clash of civil and common law. Of course, the imbalance of powers between the systems’ courts is critical. However, both approaches have their advantages. Whilst civil law approach establishes harmony between Member States’ courts and provides for a high degree of legal certainty and predictability, the common law approach gives greater flexibility to judges in order to do justice in the individual case, which at times is necessary to prevent abusive litigation tactics. Whilst the Court of Justice of the European Union (CJEU) rightfully held that the Brussels regime does not allow for anti-suit injunctions in non-obligation-based cases, the remedy should not have been banned in obligation-based cases. Civil law dominated Europe has unfortunately missed the opportunity to learn from the common law approach in a rather arrogant manner. Now however, it is time to look forward. It is crucial to realize that even greater conflicts may arise from 1 January 2021, but that the future also provides a unique opportunity to resolve the issue once and for all. In the eye of the inevitable reemergence of the anti-suit injunction it is high time to address the issue. Otherwise, parties involved in cross-border litigation in Europe may be in danger of having to litigate with minimum legal certainty or even becoming playing balls amongst jurisdictions. Such a situation would scare off parties and decrease Europe’s attractiveness as a legal venue. Therefore, it is not only in the parties’, but also in both the UK’s and EU-27s interest to resolve the issue of anti-suit injunctions in transnational litigation in Europe.
Sanctions for Lack of Fulfilment of Information Duties: Searching for an Adequate Regulatory Model for Personalized Agreements
Authors: Poludniak-Gierz Katarzyna
Published: April 2022

The effectiveness of the protection-by-information model in consumer law depends primarily on the method of structuring pre-contractual duties and sanctions correlated with the lack of fulfilment of said duties. Modern legal doctrine considers applying technology to law-making i.e. to fix flaws in the existing protection-by-information model. However, during this discussion, the problem of sanctions for lack of fulfilment of information duties has been disregarded. This article fills this gap by exploring how the use of technology might influence the adequacy of contemporary sanctioning models. There are two main approaches towards how lack of fulfilment of information obligations should be sanctioned. First, the fact that consumer acts based on his false impression of reality can trigger liability. As a result, the individual protection mechanism (i. a. regulation of mistake and deceit) is seen as a proper sanction for non-compliance with information duties. Second, failing to provide pre-contractual information might itself be sanctionable. In this scenario, standardized protection mechanisms are preferred (Unfair Commercial Practices Directive, Consumer Rights Directive). However, the balance achieved by linking specific sanctioning mechanisms to particular pre-contractual obligations is disturbed by the use of personalization tools during contracting. Therefore, the postulate of answering the personalization of contracts with personalization of pre-contractual information duties is discussed. The possibility of extending the scope of personalization to sanctions of these norms is considered. Finally, the introduction of smart execution mechanisms is explored, and the influence of technical changes on the essential characteristics of protection-by-information model is observed.
The Principle of Transparency in Practice: How Different Groups of Stakeholders View EU Online Information Obligations
Authors: J. Wulf Alexander , Seizov Ognyan
Published: April 2022

Online information obligations have come under heavy criticism, among other things because they are felt to be too numerous, too long, and insufficiently transparent. To date, empirical research on online disclosures employed quantitative research designs that were restricted to a consumer-centric perspective in pre-contract conclusion scenarios. The aim of this article is to add to our understanding of online information disclosures in Europe by investigating them from multiple perspectives. We report on how the most relevant stakeholders inGermany, the largest consumermarket in the EUand the pioneer of the transparency principle, view disclosures online as currently defined in European law.We obtained responses on online information obligations’ goals and target groups, their shortcomings and how they could be improved, compliance and processing costs for businesses and consumers, and transparency. We conclude by advocating a paradigm shift in research on information obligations and the formulation of the EU policies that govern them. We propose the alternative view that consumers read disclosures mainly in a post-contract conclusion scenario, as this is a more realistic assumption on their actual use case. On this basis we submit various policy proposals.

Transparency, online information obligations, consumer policy, empirical legal studies, qualitative research
Online Platform Service Providers on Platform 9¾: A Call for an Update of the Unfair Contract Terms Directive
Authors: Hajek Bea
Published: April 2022

This article argues for an update of the Unfair Contract Terms Directive of 1993 in light of the Commission’s Digital Single Market Strategy of 2015. The Directive in its current setup tolerates a certain amount of differences in the unfairness assessment based on national law due to its minimum harmonization approach and the mechanism of decentralized enforcement by national courts according to national law, designed by the CJEU. A comparative unfairness assessment of contract terms of five popular online platform service providers according to the national laws of Germany, the UK and France reveals just how different the result really is. The differences in national unfairness assessment according to the laws of the Member States go beyond the amount of differences justified by the Directive viewed from the perspective of the Commission’s legislative strategy. This inconsistency can be resolved by an update of the Unfair Contract Terms Directive. A modernization and the adoption of a maximum harmonization approach seem the most adequate considering the Digital Single Market Strategy. Right now, the Directive is stuck on the symbolic platform 9¾ – in between platform 9, the offline world for which it was created, and platform 10, the digital market.

Online Platform Service Providers, Unfair Contract Terms, Digital SingleOnline Platform Service Providers, Unfair Contract Terms, Digital Single Market, Liability Clauses
Contractual Performance in COVID-19 Times: Does Anglo-French Legal History Repeat Itself?
Authors: Vassileva Radosveta , Pédamon Catherine
Published: April 2022

The Severe Respiratory Syndrome Coronavirus 2 (COVID-19) pandemic has dealt a universal challenge to contractual performance, but legal systems have responded differently. In this article, we focus on two jurisdictions with distinct paths of development – England and France – to examine if they have drawn from their own legal history to craft solutions to this challenge and to consider if either has bettersuited tools to address it. Notably, the UK has refrained from intervening in the area of contract law, thus relying on long-standing common law doctrines and equitable remedies, while, in France, the government has intervened with a series of ordonnances providing contracting parties with new tools tackling difficulties of performance, which add to the existing arsenal in the Code civil. The article demonstrates that the responses to the COVID-19 challenge by England and France have historic roots and illustrate important legal cultural differences vis-à vis state intervention in the area of contract in trying times. Moreover, even though, at first glance, parties contracting under French law have more tools balancing freedom of contract and fairness, a closer look reveals that over protection or under protection may lead to the same outcome for contractual relationships on both sides of the Channel. Ultimately, in both countries, parties seem better off settling their disputes themselves, away from the courts.
Legal Ignorance: France
Authors: Taylor Simon
Published: April 2022

This contribution considers the role of legal ignorance in French private law. After a short description of how the issue of legal ignorance has been approached by French academic writers, the article focuses on three areas: the law of contract, limitation periods and tort law. With respect to contracts, the article demonstrates that ignorance of the law has principally been approached through the perspective of contractual consent. The study considers the extent to which ignorance of the law can vitiate contractual consent before turning to examine the role played by informational duties in strengthening contracting parties’ rights in the event of legal ignorance. The study then looks at how legal ignorance can impact on the application of limitation periods. This includes examining the issue of whether the fact that a new type of claim has only recently been recognized by the courts should mean that the starting point for the limitation period should only run from that moment. On the role of legal ignorance in tort law, the contribution in particular highlights the link between legal ignorance and issues relating to the retroactivity of case law rules. The article concludes by considering the prospects for legal change in this area.
Legal Ignorance in Portugal
Authors: Pinto Oliveira Nuno Manuel
Published: April 2022

Under Portuguese law, the general principle according to which ignorance of law is no excuse is strictly interpreted, so as to refer exclusively to the validity of statutes. It does not preclude the relevance of mistakes of law in contract and in tort. In contract law, all mistakes are treated alike, irrespectively of whether they refer to facts or to legal norms. In tort law, ignorance of relevant legal norms will normally exclude the tortfeasor’s liability for wilful, intentional misconduct. In what concerns forfeiture and prescription, Portuguese law combines longer, objective, and shorter, subjective prescription periods, such as the three-year prescription period applying to claims on tort and unjust enrichment. In general terms, the shorter, subjective prescription periods start running from the moment the holder knew of the existence of his or her right.
The Rule of Legal Ignorance in Spanish Law: Relevance, Meaning, and Scope
Authors: Rodríguez de las Heras Ballell Teresa
Published: April 2022

The rule ignorantia juris non excusat constitutes a historical principle in Spanish law as a key pillar of the collective organization of the legal system. The rule embodies the assumption that the effectiveness of the laws cannot rely on subjective elements, such as knowledge or ignorance, interest or carelessness, but it is based on an objective and social component of the legal system aimed to ensure that the enforcement of the laws is general and unconditional. Today, it is still inspiring the legal system and expressly enshrined in Article 6.1 CC, but their meaning must be duly contextualized in the current exuberance of legislation and regulations. Last decades, continuous efforts have been made to enhance the publicity of laws, improve comprehensibility, and implement technological solutions aimed to ensure accessibility of legislation, case law, and public authorities’ decisions. This article traces the origin and the evolution of the principle in Spanish law and the current expressions and applications of legal ignorance in private law. The analysis of the state of the doctrinal debate and the latest case law invites two reflections. First, the excessive use of legal ignorance as an invalidating mistake as a tool to alleviate contractual unfairness, inadequate institutional practices, or commercial abuse blurs its contours, debilitates the principle of contract preservation, deteriorates legal certainty, and discourages transactions. Second, the regulation of increasing information duties as a strategy to attenuate the impact of legal ignorance is making preand contractual processes complex, overinformed, and formalistic, with the risk of inviting purely formal compliance.