bluuebunny/crossref_metadata_2025 huggingface dataset:
The End of Expert Witnesses Immunity
Authors: Mcgrath Colm Peter
Published: April 2022

Abstract: This article examines the decision of the United Kingdom Supreme Court in Jones v. Kaney concerning arguments about the continued existence of an immunity from suit in tort enjoyed by expert witnesses in English law. It sets out the nature and role of the expert witness in the English common law before analysing the matrix of immunities that have attached to those involved in the judicial process throughout English legal history. It then examines the declining scope and protection offered by these immunities and contextualises the decision in Jones as part of this broader trend.
Civil Liability of Court-Appointed Experts in German Law
Authors: Thiede Thomas
Published: April 2022

Abstract: This article highlights some distinct features of the German rules on the liability of court-appointed experts. It lays out the origins, developments and discussions of German practice and literature in this area resulting in the enactment of the statutory rule on the liability of court appointed experts in section 839a BGB as an action in tort. Further requirements of such liability, including the standard of care expected from the expert and the limits of possible compensation for losses caused by an erroneous opinion are discussed.
Freedom of Contract in Free Movement Law: Balancing Rights and Principles in European Public and Private Law
Authors: Schepel Harm
Published: April 2022

Abstract: The right to free movement embodies both the power to interfere with contractual freedom and contractual freedom itself. Neither is absolute, and the realization of either needs justification in situations of conflict in light of the impact it has on the realization of the other. Where free movement rights embody fundamental rights capable of interfering with economic freedom - most notably, the prohibition of nationality discrimination - this constitutionalized private law will find its countervailing force in the ability of private parties to call upon the constitutional protection of their private autonomy - in privatized constitutional law. Where free movement rights embody economic freedoms, this privatized constitutional law will find its countervailing force in the ability of private interfering parties to call upon collective values laid down in fundamental rights and general principles of law - in constitutionalized private law. This settlement sacrifices both the doctrine of the supremacy of European Union law and the hierarchy of norms in its traditional constitutional understanding to an exercise in balancing rights and principles.

Résumé: Le droit de la libre circulation contient à la fois le pouvoir de s'immiscer dans le domaine de la liberté contractuelle et la liberté contractuelle elle-même. Aucun des deux n'est absolu et la réalisation de l'un doit être justifiée dans des situations de conflit à la lumière de l'impact qu'il a sur la réalisation de l'autre. Là où les droits de la libre circulation contiennent des droits fondamentaux pouvant s'immiscer dans la liberté économique - le plus évident étant l'interdiction de discrimination basée sur la nationalité - ce droit privé constitutionnalisé va trouver sa force compensatoire dans la possibilité pour les parties privées de faire appel à la protection constitutionnelle de leur autonomie privée - en droit constitutionnel privatisé. Là où les droits de la libre circulation contiennent des libertés économiques, ce droit constitutionnel privatisé va trouver sa force compensatoire dans la possibilité pour les parties privées intervenantes de faire appel à des valeurs collectives fixées dans les droits fondamentaux et les principes généraux du droit - en droit privé constitutionnalisé. Ce règlement sacrifie à la fois la doctrine de la primauté du droit de l'Union européenne et la hiérarchie des normes dans son sens constitutionnel traditionnel pour tenter d'équilibrer les droits et les principes.
Third-Party Litigation Funding: Current State of Affairs and Prospects for Its Further Development in Spain
Authors: Manuel Oliver Cojo
Published: April 2022

Abstract: Third-party litigation funding (TPLF) is a promising and fascinating practice that is receiving increasing attention. However, TPLF is still a novel institution, and hence there exists certain controversy as to what it actually stands for. In order to bring some clarity in this regard, a definition of TPLF will be provided. This definition will be used to compare TPLF with other ways of funding litigation disputes, to investigate its origins, and to examine its advantages and disadvantages. Nonetheless, the main purpose of this article is to shed light as to two supplementary issues. On the one hand, this article will show what is the current state of affairs of TPLF. For that purpose, a comparative analysis of several countries will be provided. This will show that TPLF is commonplace in common law countries such as Australia, though virtually non-existent in civil law countries. On the other hand, in order to determine the prospects for TPLF to expand into jurisdictions in which it has not developed so far, Spain will be taken as an example. This analysis will show that the possibilities for TPLF to grow in Spain are rather promising as TPLF may help overcome some of the challenges currently faced by the Spanish civil justice system. In addition, TPLF seems to be legally viable under Spanish law.

Resumé: Third-Party Litigation Funding (TPLF) est une pratique prometteuse et fascinante, qui reçoit une attention croissante. Cependant, le TPLF est encore une institution novatrice, à ce titre il existe un certain nombre de controverses concernant ce qu'il représente. Afin d'apporter de la clarté à cet égard, une définition du TPLF sera fournie. Cette définition sera utilisée pour comparer le TPLF avec d'autres moyens de financement de litiges contentieux, pour rechercher ses origines et examiner ses avantages et inconvénients. Néanmoins, le but principal de cet article est de faire la lumière sur deux questions supplémentaires. Dans un premier temps, cet article montrera quelle est la situation actuelle du TPLF. Pour cela, une analyse comparative de plusieurs pays sera établie. Elle démontrera que le TPLF est monnaie courante dans les pays de common law comme l'Australie, et pratiquement inexistante dans les pays de droit civil. Dans un second temps, afin de déterminer les perspectives du TPLF de se développer dans les juridictions où il n'est que peu implanté, l'Espagne sera prise comme exemple. Cette analyse montrera que les possibilités pour le TPLF de se développer en Espagne sont prometteuses puisque le TPLF peut permettre de surmonter certaines difficultés rencontrées actuellement par son système de justice civile. En outre, TPLF semblent légalement viables en vertu du droit espagnol.
No Market for Lemons: On the Reasons for a Judicial Unfairness Test for B2B Contracts
Authors: Schulte-Nölke Hans
Published: April 2022

Abstract: Judicial intervention into B2B contracts should be construed as part of state infrastructure to improve business efficiency and thereby that of the market itself. The main purpose of unfair contract terms regulation should be to discharge a business from reading, analysing, or even negotiating the bulk of contract terms presented to them by other businesses. This enables businesses to prepare standard terms in advance, particularly those underlying high-volume transactions. Their customers can rest assured that such contracts would need to pass a judicial fairness test before being enforced and can therefore accept the bulk of all terms presented to them in blissful ignorance of the terms' content. However, those terms which an efficient market economy would expect businesses to read carefully and, if necessary, negotiate need not be subjected to this judicial unfairness test. Such terms exempted from the fairness test are, if transparent, those that determine the price and the main subject matter of the contract, those that any aggrieved business had actually itself supplied, and moreover, all terms in a contract of such a high value for which reasonable parties would seek legal advice and painstakingly negotiate every word. There is also no need for a judicial fairness test for those terms that have, in fact, been negotiated in detail by the parties, since the main function of the test is to compensate for the lack of negotiations. In order to free the parties in the most efficient way possible from negotiating, or even reading, all other terms, the following judicially applied unfairness test should apply. The further removed a particular non-negotiated term is from what reasonable and honest parties would have agreed in individual negotiations, the more likely it is that the individual term is unfair.
Contractual Penalties in German Law
Authors: Faust Florian
Published: April 2022

Abstract: Under German law, penalty clauses are generally admissible. They mainly serve two functions: They are intended to prevent the debtor from breaching an obligation and to provide compensation to the creditor in case of breach. The first one of these functions is especially important if a claim for specific performance, which is routinely granted by German law, is difficult to enforce and if the creditor's loss is either difficult to prove or non-pecuniary and therefore not recoverable under German law. Both functions are - at least in part - also fulfilled by liquidated damage clauses and by guarantees. Under German law, the three types of clauses have to be clearly distinguished because different sets of rules apply. The judicial review of penalty clauses is more extensive than the review of liquidated damages clauses and guarantees: Unless the debtor is a merchant, the court may reduce the amount of a penalty when it has been triggered. Furthermore, for a penalty to be triggered, the debtor must be at fault.

Résumé: Le droit allemand admet généralement les clauses pénales. Elles ont principalement deux fonctions: elles tendent à empêcher le débiteur de ne pas exécuter une obligation et de fournir une compensation au créancier en cas de rupture contractuelle. La première de ces fonctions est spécialement importante lorsque la demande d'effectuer une prestation spécifique, qui est couramment acceptée en droit allemand, est difficile à appliquer et lorsque le dommage du créancier est, soit difficile à prouver, soit immatériel et par là non recouvrable en droit allemand. Les deux fonctions sont également remplies - du moins en partie - par des clauses d'indemnisation et par des garanties. En droit allemand, les trois types de clauses doivent être clairement distinguées car différentes sortes de règles s'appliquent. Le contrôle par les tribunaux des clauses pénales est plus étendu que le contrôle des clauses d'indemnisation et de garanties: sauf le cas où le débiteur est un commerçant, les tribunaux peuvent réduire le montant de la clause pénale si elle a été appliquée. De plus, pour que la clause pénale soit appliquée, il faut que le débiteur soit en défaut.
Should Private Lawyers Reconsider the Compensatory Principle in an Age of Administrative Enforcement?
Authors: Verheij Albert J.
Published: April 2022

Abstract: Law enforcement by public authorities (sometimes called quangos) has become the dominant mode of enforcement over the last couple of decades. This article critically analyses this trend in the light of some recent scandals in the Netherlands that exposed the inefficacy of the relevant public authorities. After an overview of the reasons why law enforcement by public authorities is preferred by policymakers, two Dutch scandals that featured prominently in the Dutch press in 2014 are analysed in detail. The inefficacy of the Dutch public authorities can be attributed to various factors: (in)dependence of the public authority, lack of resources and of expertise, internal tensions within the public authority, and the fact that public authorities are monopolists. Finally, the mere existence of a public authority can have a stifling effect on enforcement activities by other entities such as consumer associations. Since these contributing factors seem to be an inherent part of the design of public authorities, it is submitted that complementary law enforcement by private entities should receive serious consideration. In that context, relaxation of the compensatory principle in tort and contract law should receive special attention. It is submitted that the arguments that are commonly raised against such a relaxation (does not fit in our system, costly, potential for abuse) are unconvincing and further debate and research should take place.
A Storm in a Teacup? On Consumers Remedies for Nonconforming Goods after Weber and Putz
Authors: Luzak Joasia
Published: April 2022

Abstract: The Court of Justice of the European Union’s (CJEU) role is to interpret provisions of European law in a way that promotes the European legislator’s intentions. The clarity introduced by the CJEU is supposed to contribute to further harmonization of the Member States’ legal systems. When the Court’s judgment raises, however, as many questions as it answers, like in the Weber and Putz case regarding the assignment of liability for the costs that need to be made when a non-conforming good is replaced, the duty of consistent interpretation resting on national courts may be hard to fulfil. This article examines the implementation of the Weber and Putz judgment by German and Dutch courts, showing us differences in the national approaches to the test provided by the CJEU, pursuant to which the national judge can decide how to divide among consumers and sellers the costs for the removal of the already installed, non-conforming goods and for the installation of the new, conforming goods. Moreover, the conducted analysis presents potential unexpected effects of the Court’s ruling. Due to a lack of full harmonization of European consumer sales law, as well as damages having been left to national laws to regulate, in some Member States, for example in the Netherlands, consumers may be significantly better off if they choose the option-out created in the Weber and Putz case: to terminate the contract and claim damages instead of trying to give sellers another chance to perform.
Security in Movables Revisited: Belgiums Rethinking of the Article 9 UCC System
Authors: Helsen Frederic
Published: April 2022

Abstract: This paper compares Belgian law pertaining to the granting of security interests in movables to US law on this subject. The Belgian system is currently still in the implementation stage, leaving it less detailed but benefiting from stronger coherence and a fresh start. The US system, set forth in Article 9 of the Uniform Commercial Code (UCC), is much older and highly detailed and, therefore, better equipped to deal with the intricacies of practice, but at the cost of a loss of clarity and second-best solutions largely caused by path dependence. This study tries to identify the areas where one system might learn from the other. As the UCC system was a major source of inspiration for the Belgian reform, leading to the shared basic foundation of a functional approach to security interests, which are to be made publicly knowable by way of register publicity, the systems are ideally suited for a straight comparison. As the basic premises are identical, the focus can be shifted to their implementation. After setting out the boundaries within which security interests operate in terms of assets and debts covered, this paper follows the lifetime of the security interest, from the way they are set up between the parties, to how they are made enforceable against third parties, down to the way they meet their end in a possible bona fide purchase or foreclosure, comparing the two systems every step of the way. Given that the Belgian government is currently designing how the system will actually work and the difficulty of making changes to such a vast system once it is in place, this kind of analysis is of key importance for the future proper functioning of secured lending in Belgium. The lessons taken from this comparative analysis are therefore translated into actionable proposals and best practices for the implementation and application of the Belgian Pledge law. These range from the judicial adoption of similar guidelines on what constitutes a sufficient description of collateral, over the freedom to negotiate default clauses and the limitations to that freedom, to a broad conception of forced dispositions of collateral. This study anticipates judicial interpretation of the new Pledge law in order to provide Belgian practitioners and judges with the necessary tools ahead of time. From the other point of view, it shows those weaknesses of the UCC system that could be remedied through an overhaul of the system.
Claims Management Services: An Alternative to ADR?
Authors: Rott Peter
Published: April 2022

Abstract: The article discusses enforcement of consumer claims by claims management companies. Using the example of air passenger rights, it analyses the business model of claims management companies, including the contingency fees they charge, and the reasons for their success both in attracting customers and in enforcing their rights. It then compares that mode of enforcement with other routes of enforcement and reflects further areas in which claims management companies could act successfully. Finally, the article considers how the judicial enforcement system could be modified so as to avoid consumers paying parts of their claims to claims management companies.

Résumé: L’article examine comment des societes specialement instituees pour traiter des reclamations des consommateurs font valoir les droits de ces derniers. En utilisant l’exemple des droits des passagers aeriens, il analyse le modele operationnel de ces societes de traitement des reclamations, en incluant les honoraires de resultat qu’elles facturent et les raisons qui expliquent pourquoi elles parviennent tant a attirer des clients qu’a faire respecter les droits de ces derniers. L’article compare, ensuite, ce mode de mise en oeuvre de droits avec d’autres moyens et se penche sur d’autres domaines dans lesquels de telles societes de traitement des reclamations pourraient agir avec succes. Enfin, l’article examine comment le systeme judiciaire de mise en oeuvre des droits pourrait etre modifie afin d’eviter que les consommateurs payent une partie du montant de leurs reclamations aux societes de traitement des reclamations.
Kinship Bonds and Emotional Ties: Lack of a Family Relationship as Ground for Disinheritance
Authors: Amayuelas Esther Arroyo , Amorós Esther Farnós
Published: April 2022

Abstract: A topical issue in the context of the general debate about the need to retain or abolish forced share in Spain is the question of whether to broaden the range of grounds for excluding a forced heir from his or her share of the estate. There is particular debate surrounding the appropriateness of adding estrangement or the lack of a family relationship to the list of grounds, with the aim of increasing testamentary freedom. Some countries have a tendency to allow ties of affection to prevail over purely family or kinship ties in this matter, but sometimes at the cost of legal certainty and – since such a vague ground is not necessarily more respectful with freedom of testation – despite the risk that the courts may not always achieve the justice sought by a testator who wishes to disinherit a forced heir that shows no affection for her. This paper considers the different approaches to this topic between different legal systems. The Catalan and the German ones just represent extreme examples of radical different tendencies. In Spain, recent case law has provided new arguments for thinking about what the law says, how the courts interpret, and, finally, what the society expects.

Resumée: Faut-il étendre les causes qui permettent d’exclure un héritier réservataire de sa part dans le patrimoine? Telle est une des questions brûlantes qui agitent le débat sur le maintien ou l’abolition de la réserve héréditaire en Espagne. Le débat porte en particulier sur le point de savoir s’il est opportun d’ajouter aux causes d’exclusion, la séparation ou l’absence de relations familiales, dans le but d’accroitre la liberté testamentaire. Certains pays ont tendance à faire prévaloir les liens affectifs sur les liens de famille ou de parenté, parfois au détriment de la sécurité juridique. Le caractère vague d’un tel motif ne respecte pas nécessairement la liberté de tester, parce qu’il n’est pas sûr que les tribunaux y parviendraient à l’objectif de justice recherché par le testateur qui souhaite déshériter un héritier réservataire lorsqu’il ne montre pas de proximité affective avec lui. Cet article met en évidence les différentes approches de cette question par différents systèmes juridiques. Le système catalan et le système allemand donnent par exemple des réponses radicalement différentes. En Espagne, la jurisprudence récente a fourni de nouveaux arguments pour réfléchir à ce que dit la loi, ce que les tribunaux donnent comme interprétation et, enfin, ce que la société attend.
Penalty Clauses in English Law
Authors: Beale Hugh
Published: April 2022

Abstract: Since 1915, English law has distinguished between penalties (which are unenforceable) and ‘liquidated damages’ (which are enforceable) by the criterion of whether the amount agreed to be payable is extravagant and unconscionable in comparison to a genuine pre-estimate of the loss. Recent cases have suggested that a clause may also be valid, though it was not a genuine pre-estimate of the loss, if it had a commercial justification and was not merely aimed at deterring breach or even if it was aimed at deterring breach, provided that there was a broader social interest in ensuring compliance with the contract. The latest cases have been appealed to the Supreme Court. In one, the appellants argued that the doctrine of penalty clauses should be abolished or at least dis-applied when the parties ‘met on a level playing field’. But total abolition would leave unsophisticated businesses unprotected and partial disapplication would be difficult without developed criteria to determine when the doctrine should apply. More promising approaches may be to exempt clauses that form the ‘core’ of the contract or to ask what the commercial purpose of the provision is and whether its effects are proportionate to that purpose. It might be difficult, however, to determine what types of clause should fall within such a control, and it may be that the Supreme Court will decide to deal only with clauses that are triggered by a breach and to consider the legitimacy of clauses that have a commercial purpose other than compensation and including deterrence, provided that the effects of the clause are not extravagant and unconscionable.
The Justice Dimensions of the Relationship between Fundamental Rights and Private Law
Authors: Hesselink Martijn W.
Published: April 2022

Abstract: This article explores the justice dimensions of the relationship between the Charter of Fundamental Rights and private law. It reaches three main conclusions. First, a partisan interpretation of the Charter and its horizontal effects in terms of controversial values would be difficult to match with the reasonable pluralism of worldviews characterizing the European Union (EU). Instead, the interpretation of fundamental rights should be guided by the demands of a political conception of justice that is acceptable to people adhering to divergent understandings of individual and common good. Secondly, courts and other interpreters of the Charter must distinguish between fundamental rights, freedoms, and principles in accordance with their respective moral content and cogency. The generic and hyper-positivistic reference to the ‘constitutional’ or ‘primary EU law’ status of the entire Charter is far too crude. In particular, human rights, which every person equally has by virtue of his or her humanity, should have much stronger force than merely instrumental freedoms and principles. Thirdly, the facts of the reasonable pluralism of worldviews and of the indeterminacy of the Charter and its horizontal effects together call for judicial restraint. Because the fundamental rights, as formulated in the Charter, strongly underdetermine private law rules and outcomes of civil disputes, courts should, in principle, be deferential in cases where the reasons and interests raised by a constitutional right claim have already been adequately addressed in a robust democratic process. From the perspective of justice in each of these dimensions, the Court of Justice probably has been too partisan and activist in some recent private law cases, such as Alemo-Herron.
How to Make the Best of Mandatory Information Requirements in Consumer Law
Authors: Schaub Martien
Published: April 2022

Abstract: EU consumer protection relies inter alia on information requirements imposing on traders the duty to provide specific and mandatory information to consumers before the conclusion of a contract. If consumers make well informed choices this can serve their individual interest, but it is also thought to contribute to a healthy market. However, the imposition of stringent and specific information requirements has been criticized from several points of view. For example, behavioural scientist have argued that more information does not necessarily lead to better decisions. From an economic point of view, information requirements can even be harmful to consumer interests. Nevertheless, information requirements form a substantive part of EU consumer protection and therefor this contribution explores how information requirements may be of added value. It is argued that information requirements can add value to consumer protection when regarded in relation to general contract law. This point is illustrated by an analyses of the information duties of the Consumer Rights Directive in relation to general contract law.
Should the Implied Term Concerning Quality Be Generalized? Present and Future of the Principle of Conformity in Europe
Authors: de Elizalde Francisco
Published: April 2022

Abstract: One of the main inroads to the so-called Classic Contract Law has been made by implied terms imposing a certain quality on the subject matter of contracts, an outcome that has been achieved by resorting to a variety of legal sources and tools. Modernization and harmonization of European Contract Law, to this respect, has mainly focused on sales contracts (as an archetype to others), including the requirement of conformity in its terms. The article deals with the concept of conformity and assesses its profound implications to traditional notions of Contract Law. As in many European legal systems the principle of conformity is restricted to certain types of sales, it is necessary to furtherly deepen in national Law to assess the existence of equivalent requirements to conformity whenever it does not apply. To this end, the work undertakes a Comparative Law perspective following a realistic and functional methodology. As a central instrument in the modernization of Contract Law, the article assesses the desirability of generalizing the principle of conformity to all contracts, a position that, from a legal and economic perspective, is not recommended. The relationship between freedom of contract and reasonable expectations of the parties is an underlying tension to this matter in respect of which the present work proposes a solution.
Restitution Under an Illegal Contract: A Scots Law Perspective on Patel v. Mirza
Authors: Macleod John , Ezike Obiora
Published: April 2022

Abstract: The illegality doctrine is an area where Scottish materials are sparse and conflicting. There have therefore been calls for law reform in Scotland, even along the lines of the United Kingdom Supreme Court (UKSC) decision in Patel v. Mirza. Moreover, Patel is already being mentioned with approval in Scottish courts and texts, and this suggests that any case which comes after it is likely to follow it closely.
The (Legal) Qualification of the Embryo and Its Utilization for Scientific Research Purposes Under the European Multilevel Protection System of Fundamental Rights
Authors: Ferraro Angelo Viglianisi , D’Alvia Daniele
Published: April 2022

This article aims to bear further discussion on the disputed legal issue that centres on identifying a possible ontological qualification of the embryo. Notably, this article explores how scientific research and various medical treatments can affect the legal status of embryos. We consider, from a comparative point of view, domestic and international legal orders as well as specific legal venues such as courts, to show how the law and judicial interpretation of it can interact as legal formants to influence the legal qualification of the embryo. This article considers the law as a mere legal venue for establishing a possible uniform ontological qualification of the embryo hinging on the concept of human dignity. In fact, human dignity, as opposed to legal formants, can be used to define the internal and external limits to a proper legal qualification of the embryo. This is because human dignity informs the discourse on ‘life’, and we term this approach as a predetermined and unqualified connotation of life itself. Indeed, this approach can now be used to construct a possible limit to any interference, modification, or evaluation that can directly affect the legal qualification of the embryo tout court.
Blockchain & Data Protection  and Why They Are Not on a Collision Course
Authors: Moerel Lokke
Published: April 2022

Abstract: Recent publications on the data protection aspects of blockchain technology focus on the characteristics of the initial public (Bitcoin) blockchain, and do so in a generalized manner. The authors then conclude that the characteristics of a public blockchain are profoundly incompatible at a conceptual level with the principles of the EU General Data Protection Regulation (GDPR). The GDPR requires identification of a central ‘controller’ who is responsible for compliance with the GDPR, while a public blockchain decentralizes the storage and processing of personal data, as a result whereof there is no such central point of control. For lack of a better alternative, the authors conclude that all ‘nodes’ involved in operating a blockchain qualify as a controller under the GDPR, raising enforcement and jurisdictional issues that make it impossible for individuals to enforce their rights. The transparency and immutability of a public blockchain would further not sit well with principles of data confidentiality, data minimization, data accuracy and the rights of individuals to correction and deletion of their data.

I disagree with the analysis of these authors for a host of different reasons, the main one being that the authors focus on the shortcomings of the initial public (Bitcoin) blockchain when already many new types of permissioned private and consortium blockchain have been developed that significantly diverge from the original, permissionless public blockchain. In fact, these types of permissioned blockchain have been developed in response to the shortcomings of public blockchain. The authors further consider the data processing implications of blockchain as if this technology constitutes in itself a data processing activity for which a controller has to be identified. Controllership is, however, decided based on a specific use or deployment of a certain technology. Blockchain, like the internet, is a general-purpose technology that is subsequently deployed by actors for a certain purpose in a specific context. Applying the question of controllership to the internet at large would pose similar data protection issues under the GDPR as identified by the authors in respect of blockchain. This publication explains why none of these issues are currently hampering application of the GDPR to the internet and are equally unlikely to pose issues for blockchain applications. This publication describes the issues in their broader context, as well as how each of these issues can be addressed to ensure compliance with the GDPR. The conclusion is that the GDPR is also well able to regulate this new technology. This does not, however, mean that blockchain will thus be suitable for all use and deployment cases.
Digital Platforms: Regulation and Liability in the EU Law
Authors: Tereszkiewicz Piotr
Published: April 2022

Abstract: This article discusses the approaches towards regulation and liability of digital platforms, focusing on the European Union perspective. It demonstrates that the current regulatory and scholarly perception of platform liability in the European Union has been framed by the EU Electronic Commerce Directive 2000/31 provisions on liability of information society service providers. Subsequently, in light of scholarly writings and regulatory developments, two main approaches towards platform liability are identified and discussed: On the one hand, the idea of general provisions on platform liability, exemplified by the Discussion Draft on Digital Platforms. On the other hand, sector-specific provisions that densely regulate business models based on digital platforms, exemplified by the new EU Package Travel Directive 2015/2302. Both approaches are evaluated as far as their potential for inspiring legislative activity is concerned.
Private Law Regulation of Digital Intermediaries
Authors: Wielsch Dan
Published: April 2022

Communication in the digital world depends on Internet intermediaries. By means of technology they control access to information and function as creators of the public. In particular, platforms for social networks do not just facilitate communication but they shape sociality. However, as important as online intermediaries are for the entire spectrum of social life, they create autonomous normative orders, the rules of which they can self-enforce based on their control of the logical architecture. Under these circumstances the law should be cautious not to confuse the autonomization of emergent normativity and private regulation with their naturalization. The article enquires into the options of private law to regulate the regulatory activities of digital intermediaries. In order to apply private law review to digital regulation, it is essential to understand the terms of use and running code as manifestations of the autonomy of the digital. Private law would then act as a kind of constitutional law for the digital medium. In the context of such social constitutions, protection of freedom is primarily accomplished through developing standards of due process for private regulation. The focus of private-law instruments should be to induce procedural and participatory innovations in the normative orders of transnational media.
Market Access, the New Approach and Private Law
Authors: Van Leeuwen Barend
Published: April 2022

In James Elliott and Schmitt, the ECJ refused to extend the scope of application of European standards adopted under the New Approach to private law disputes. This article argues that the ECJ’s judgments were based on a static interpretation of the concept of market access, which is inconsistent with how the concept of market access has been developed in free movement of goods cases under Article 34 TFEU. It argues for a more consistent and dynamic interpretation of market access. Such an approach would bring private liability cases like James Elliott and Schmitt within the scope of application of EU law. As a result, the conditions and requirements for liability in private law could be reviewed by the ECJ. If the ECJ is not willing to extend the scope of application of the New Approach in this way, the EU legislature should include rules on private liability in the directives adopted under the New Approach.
The Doctrine of Precontractual Liability Under Chinese Law: A Comparative Outlook
Authors: Ding Chuanyan
Published: April 2022

The doctrine of precontractual liability was transplanted from the European civil law systems into Chinese contract law in 1999. Since then, it has gradually evolved into one with Chinese characteristics with the judicial interpretations of the Supreme People’s Court and numerous court decisions on precontractual liability. Although the doctrine of precontractual liability has been in use in China for almost two decades, little effort has been made to answer the following questions: What are the scope, nature and functions of the doctrine of precontractual liability? What remedies for precontractual liability are awarded to the aggrieved party? To what extent does it differ from its European counterparts after which it was modelled? This article aims to answer these questions through doctrinal and comparative analysis. It first delineates the doctrine of precontractual liability as stipulated in Chinese contract law and clarifies the distinction between precontractual liability and liability for breach of pre-contract. It then categorizes court decisions on precontractual liability into five categories in order to gain a better understanding of the scope of the doctrine in judicial practice and also investigates judicial approaches to the remedies for precontractual liability. This article further discusses the nature and functions of the Chinese doctrine of precontractual liability within the law of obligations.
European-Autonomous Property Rights: Does the EU Operate Its Own Numerus Clausus?
Authors: Akkermans Bram , Ramaekers Eveline
Published: April 2022

Property rights are at the core of property law. They are used to shape relationships between people and things. Their effect is generally against the world (erga omnes) and hence there are limitations on the number and content of those rights. The vast majority of legal systems within the EU operates a numerus clausus – or ‘closed list’ – of property rights. In the past decades, there has been an increase in the making of a European private law: private law rules at the EU level. This does not only concern rules of EU contract law, but increasingly also rules of property law at the EU level. Examples of the latter are rules relating tomortgage credit that influence the content of rights of hypothec, but also rules on the law applicable to international succession- or matrimonial property law cases. At the same time, there is influence of the four basic freedoms (freedom of movement of goods, persons, services and capital) on national private law. In this case law, the Court of Justice of the European Union (CJEU) relies on national law, but also provides its own EU terminology and definitions. This does not mean that a full-fledged law of property arises at the EU level, but it raises the question what system-elements are also present at the EU level. National legal systems generally operate on the basis of a closed system of property rights (a numerus clausus). Existing European Property Law research looks into the rise of European property law and the existence of principles such as the numerus clausus, in European legislation. This article focuses on the Court of Justice of the European Union and investigates whether EU law has its own numerus clausus: a list of property rights defined autonomously in European case law and legislation
Consumer Law, Enforcement and the New Deal for Consumers
Authors: Scott Colin
Published: April 2022

A key trend for consumer law and policy in Europe has been the progressive expansion of consumer rights. It has long been recognized that the vindication of consumer rights is challenging. The expansion of consumer rights from the 1960s was accompanied by the establishment of proactive regulatory agencies whose enforcement powers complement and to some degree displace mechanisms of individual consumer enforcement. In April 2018 the European Commission proposed extensive reforms of consumer law and policy in its New Deal for Consumers, a key component of which is a further significant shift away from judicial enforcement. This trend is balanced by new proposals to enhance opportunities for collective consumer redress. In this article I offer an assessment of where we are today with the varied mechanisms and trends for enforcement of consumer law and where we are heading, not simply with the New Deal for Consumers, but also with related policies such as the Digital Single Market Strategy. Overall the pattern suggests a number of key trends including: a shift from reactive to more proactive modes of enforcement; from individuated to more collective modes; more evidence of meta-regulatory approaches, and; greater cooperation in enforcement (both public private and transnational). These trends are not necessarily consistent as between each other, generating potential for tensions between approaches and underlying assumptions about both purposes and effectiveness in consumer law and policy.

Consumer Law, Enforcement, European Union
The ‘New Deal’ for Consumers: Towards More Effective Protection?
Authors: Tommasi Sara
Published: April 2022

The article analyses to what extent the New Deal for Consumers can represent a step forward in the effective protection of the consumer. Although there is a path to overcome the separation between the definition of rights at European level and remedies at a national level and to identify common criteria in the application of sanctions, more courageous measures would be needed. In particular, what is being proposed here is to link the effectiveness of the protection with the real balance between the rights and obligations of consumers and professionals to provide solutions that allow, in compliance with the principle of proportionality, to place the consumer in the same situation in which they would be found in the absence of the violation.
The Significance of the Principles of European Contract Law
Authors: Zimmermann Reinhard
Published: April 2022

In his autobiographical account ‘My Life as a Lawyer’ Ole Lando wrote: ‘I set out to try and unify the substantive contract law in the EU. My efforts started in 1976’. These efforts were to lead to the publication of the Principles of European Contract Law (PECL) in 1995 (Part I), 2002 (Parts I and II), and 2003 (Part III). According to Hugh Beale it is that work for which Ole Lando is best known; and it is for that work that he is regarded as ‘one of the most influential figures in the development of European private law to date’. The present contribution therefore deals with these Principles of European Contract Law.

Acquis commun, Acquis communautaire, Commentaries on European Contract Laws, Lando, Ole, Non-legislative codification, Principles of European Contract Law, Restatements, Textual Layers, UNIDROIT
Ole Lando and Choice of Law for Contracts
Authors: Nielsen Peter Arnt
Published: April 2022

The author represents the content of Ole Lando’s doctoral dissertation from 1961 on the choice of law for contracts. The dissertation examined the evolution of the choice of law rules for contracts in France, Germany, England, the US and the Scandinavian countries. It is concluded that Ole Lando in his dissertation proposed choice of law rules for contracts that in general were adopted two decades after his dissertation in the Rome Convention on Choice of Law for Contractual Obligations.

Harmonization, contract law, European private law, restatements
Judges in Utopia The Transformative Role of the Judiciary in European Private Law
Authors: Mak Chantal , Burgers Laura , Duin Joanna Van
Published: April 2022

This article introduces four contributions to a special issue on ‘judicial law-making in European private law’, which seeks to reconstruct and understand (aspects of) the evolving transformative role of the judiciary in light of the interaction between the national and European level. The paradigmatic examples of climate change litigation and judicial dialogue in consumer mortgage cases show how courts are asked to address sensitive political questions in cases brought by private parties in civil proceedings. A ‘utopian’ (self-)understanding of the judicial task explains and justifies how and to what extent judges may address such societal problems through private law, and at the same time transform private law itself.
‘I Know that I Know Nothing’: Extraordinary Circumstances in Air Passenger Rights Regulation
Authors: Pantazi Tania
Published: April 2022

According to European Passengers Rights Regulation (EU 261/2004), passengers are entitled to standardized compensation for flight cancellation and delays, unless the disruption was caused by ‘extraordinary circumstances’. Despite themajor legal and financial implications of this provision, its exact content remains uncertain, causing a constant debate between passengers, air carriers and national authorities. The European Court of Justice has clarified many of the disputed cases, but in some occasions its decisions have caused further confusion. In the last two years, new decisions of the European Court of Justice, such as on the matter of wildcat strikes, and relevant reports of European instruments show that the problems intensify. This article will investigate the current state of affairs with regard to the application of the ‘extraordinary circumstances’ exception and address some of the issues that remain uncertain, in an attempt to demonstrate the importance of the matter in the general context of European law. Deficiencies in the interpretation and enforcement of the Regulation will have to be addressed, in order to promote a more coherent application to the benefit of passengers and airlines.

air transport, Regulation 261/2004, passenger rights
Ole Lando Memorial Lecture: Contract Law and Human Dignity. Second Ole Lando Memorial Lecture, Vienna 2020
Authors: von Bar Christian
Published: April 2022

The second Ole Lando Memorial Lecture is about the influence of theconstitutional protection of human dignity on private contract law. The paper argues that where violations of human dignity occur, it is no longer possible to distinguish between the vertical and horizontal effects of fundamental and human rights. The article demonstrates this using the example of contracts that violate dignity, in particular within the law on assisted dying.

Human dignity, Contracts violating human dignity, Assisted dying Motsclés: Dignité humaine, Contrats portant atteinte à la dignité, Mort assistée Schlüsselwörter: Menschenwürde, Würdeverletzende Verträge, Sterbehilfe
Sales Contracts and the Circular Economy
Authors: Kryla-Cudna Katarzyna
Published: April 2022

The aim of this paper is to investigate the ways in which the law of sales can contribute to the circular economy. The paper focuses on the exercise of the remedies for non-conformity of the goods with the contract. In particular, the paper examines the remedy of repair and the remedy of replacement with a refurbished rather than a new good. A broader availability of these remedies may clearly support sustainability goals. At the same time, however, it may limit the protection of the contractual interest of the buyer. This paper offers a novel approach which allows for a broader applicability of repair and replacement with a refurbished good while at the same time ensuring an adequate protection of the buyer’s performance interest. Furthermore, the paper investigates other instruments within sales law, beyond repair and refurbishment, which can support the circular economy. In this respect, the paper examines the role of the length of legal guarantee periods, the burden of proof of the non-conformity and the regulation of sales of second-hand goods.

Repair, refurbishment, replacement, remedies for non-conformity, sustainability, circular economy Motsclés: Réparation, Remise à neuf, Remplacement, Recours pour non-conformité, Durabilité, Economie circulaire Schlüsselwörter: Reparatur, Aufarbeitung, Ersatz, Rechtsmittel bei Vertragswidrigkeit, Nachhaltigkeit, Kreislaufwirtschaft