Fabrizio Cafaggi
- Published in print:
- 1993
- Published Online:
- March 2012
- ISBN:
- 9780199296040
- eISBN:
- 9780191700743
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199296040.003.0001
- Subject:
- Law, EU Law
This book resulted from the rising need to provide complementary insights about the institutional framework in which the European private law (EPL) has been established. Although constitutional ...
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This book resulted from the rising need to provide complementary insights about the institutional framework in which the European private law (EPL) has been established. Although constitutional lawyers may have already addressed this task, it is also important that private lawyers participate in related efforts so that the relation between the content of the EPL and the nature of rule-making may be further reinforced. While this said framework is comprised with European and national level institutions that influence the processes involved in establishing private law, and since law-making is perceived to be a dynamic process, it is important to note that the substantive rules and the production process are may be connected in several different integral ways since the quality and content may easily be affected.Less
This book resulted from the rising need to provide complementary insights about the institutional framework in which the European private law (EPL) has been established. Although constitutional lawyers may have already addressed this task, it is also important that private lawyers participate in related efforts so that the relation between the content of the EPL and the nature of rule-making may be further reinforced. While this said framework is comprised with European and national level institutions that influence the processes involved in establishing private law, and since law-making is perceived to be a dynamic process, it is important to note that the substantive rules and the production process are may be connected in several different integral ways since the quality and content may easily be affected.
Hans‐W Micklitz
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199607730
- eISBN:
- 9780191725258
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199607730.003.0003
- Subject:
- Law, EU Law
This chapter demonstrates that the existing EU law, primary Community law as well as the numerous pieces of secondary Community law, meant to privatize former state monopolies, produces elements of a ...
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This chapter demonstrates that the existing EU law, primary Community law as well as the numerous pieces of secondary Community law, meant to privatize former state monopolies, produces elements of a new European private law, which is designed to protect the economically and socially disadvantaged citizen. Understood in this way, universal services may be seen to form an integral part of the European Social Model. The argument is developed in three steps. Part 2 analyzes legal distinctions as conceptual differences. Translated into a private law perspective, this part deals with the possible scope of the law on universal services. Part 3 examines the hybridization of the public/private law divide in universal services. The traditional bilateral concept of private law relations does not work in universal services. It is much more a triangular relationship, where national and European regulatory agencies/networks intervene as intermediaries in the former citizen–state relationship and yield the citizen-consumer as a new social actor. Part 4 looks at the constitutionalization process of universal rights via the economic freedoms and fundamental basic rights enshrined in the Treaty. It suggests that constitutionalization allows for the development of constitutive principles of the law on universal services. Part 5 formulates possible perspectives on the law on universal services, the possibility of its generalization in the field of regulated markets as well as in the non-economic sector of public services where the impact of privatization is still strongly felt.Less
This chapter demonstrates that the existing EU law, primary Community law as well as the numerous pieces of secondary Community law, meant to privatize former state monopolies, produces elements of a new European private law, which is designed to protect the economically and socially disadvantaged citizen. Understood in this way, universal services may be seen to form an integral part of the European Social Model. The argument is developed in three steps. Part 2 analyzes legal distinctions as conceptual differences. Translated into a private law perspective, this part deals with the possible scope of the law on universal services. Part 3 examines the hybridization of the public/private law divide in universal services. The traditional bilateral concept of private law relations does not work in universal services. It is much more a triangular relationship, where national and European regulatory agencies/networks intervene as intermediaries in the former citizen–state relationship and yield the citizen-consumer as a new social actor. Part 4 looks at the constitutionalization process of universal rights via the economic freedoms and fundamental basic rights enshrined in the Treaty. It suggests that constitutionalization allows for the development of constitutive principles of the law on universal services. Part 5 formulates possible perspectives on the law on universal services, the possibility of its generalization in the field of regulated markets as well as in the non-economic sector of public services where the impact of privatization is still strongly felt.
Marise Cremona and Hans-W Micklitz (eds)
- Published in print:
- 2016
- Published Online:
- June 2016
- ISBN:
- 9780198744566
- eISBN:
- 9780191805868
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198744566.001.0001
- Subject:
- Law, EU Law, Public International Law
This book explores the interaction between EU external relations law and private law. In what ways might European private law be a tool to achieve EU external regulatory objectives? In what ways ...
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This book explores the interaction between EU external relations law and private law. In what ways might European private law be a tool to achieve EU external regulatory objectives? In what ways might developing EU external competence over the procedural dimensions of private law, including private international law, impact on substantive law, both externally and internally? The perception of EU external relations and private law as two separate fields unconnected to each other changes dramatically if private law is understood as regulatory private law, the space where regulatory law intersects with private economic activity. This book is intended to open up a field of enquiry into the to-date underexplored relationship between these two fields of law. In doing so it addresses both the ways in which EU private law extends its reach beyond the boundaries of the internal market, and the ways in which the EU contributes to the formation of private regulation at the international level. It is argued that changes in the scope of EU competence and its external relations practice in both private international law and regulatory private law, alongside the growth of international regulatory private law, combine in ways which are both interesting legally and of increasing importance.Less
This book explores the interaction between EU external relations law and private law. In what ways might European private law be a tool to achieve EU external regulatory objectives? In what ways might developing EU external competence over the procedural dimensions of private law, including private international law, impact on substantive law, both externally and internally? The perception of EU external relations and private law as two separate fields unconnected to each other changes dramatically if private law is understood as regulatory private law, the space where regulatory law intersects with private economic activity. This book is intended to open up a field of enquiry into the to-date underexplored relationship between these two fields of law. In doing so it addresses both the ways in which EU private law extends its reach beyond the boundaries of the internal market, and the ways in which the EU contributes to the formation of private regulation at the international level. It is argued that changes in the scope of EU competence and its external relations practice in both private international law and regulatory private law, alongside the growth of international regulatory private law, combine in ways which are both interesting legally and of increasing importance.
Hans-W. Micklitz
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780198705222
- eISBN:
- 9780191774294
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198705222.003.0007
- Subject:
- Law, EU Law, Constitutional and Administrative Law
This chapter first discusses regulatory private law in general and European regulatory private law in particular. It then uses three parameters — ‘scope’, ‘limits’, and ‘intensity’ — to examine the ...
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This chapter first discusses regulatory private law in general and European regulatory private law in particular. It then uses three parameters — ‘scope’, ‘limits’, and ‘intensity’ — to examine the relationship between the two legal orders as it stands today with the possible impact of the Lisbon Treaty on the competence order. It considers the issue of ‘intensity’; that the EU has intensified its grip on national law by shifting the focus from minimum to maximum harmonization. It discusses whether the maximum harmonization of private law matters affects ‘essential state functions’ and infringes the Member States' ‘national identities’.Less
This chapter first discusses regulatory private law in general and European regulatory private law in particular. It then uses three parameters — ‘scope’, ‘limits’, and ‘intensity’ — to examine the relationship between the two legal orders as it stands today with the possible impact of the Lisbon Treaty on the competence order. It considers the issue of ‘intensity’; that the EU has intensified its grip on national law by shifting the focus from minimum to maximum harmonization. It discusses whether the maximum harmonization of private law matters affects ‘essential state functions’ and infringes the Member States' ‘national identities’.
Stephen Weatherill
- Published in print:
- 1993
- Published Online:
- March 2012
- ISBN:
- 9780199296040
- eISBN:
- 9780191700743
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199296040.003.0003
- Subject:
- Law, EU Law
Several questions arise that concern the scope of available competence that is covered by European private law. While it is specified in Article 5(1) EC that the EC functions only within the bounds ...
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Several questions arise that concern the scope of available competence that is covered by European private law. While it is specified in Article 5(1) EC that the EC functions only within the bounds that are set by the founding Treaties, there is no legislative competence that addresses the issues in the particular field of private law. The constitutional landscape is said to be enriched in practice by the competence given by the EC Treaty to impose harmonization. However, certain issues have to be addressed that would not just assess legislative practices imposed in the past, but contemplate what may be adopted in the future of European contract law as well. This chapter attempts to examine the constitutional aspects of European private law, while drawing attention specifically to patterns of legislative harmonization.Less
Several questions arise that concern the scope of available competence that is covered by European private law. While it is specified in Article 5(1) EC that the EC functions only within the bounds that are set by the founding Treaties, there is no legislative competence that addresses the issues in the particular field of private law. The constitutional landscape is said to be enriched in practice by the competence given by the EC Treaty to impose harmonization. However, certain issues have to be addressed that would not just assess legislative practices imposed in the past, but contemplate what may be adopted in the future of European contract law as well. This chapter attempts to examine the constitutional aspects of European private law, while drawing attention specifically to patterns of legislative harmonization.
Hans Micklitz and Dennis Patterson
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199659654
- eISBN:
- 9780191748189
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199659654.003.0005
- Subject:
- Law, EU Law, Public International Law
This chapter demonstrates how the European Union, being understood as a market state, affects the private legal orders of the Member States and the design of the emerging European private legal ...
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This chapter demonstrates how the European Union, being understood as a market state, affects the private legal orders of the Member States and the design of the emerging European private legal order; first within the EU (the inner space of EU Statecraft) and second in the relations of the EU to the outside world (the outer space of European Statecraft or global governance). The national private legal orders may be equated with the pre-modern state nation and later the nation state of the twentieth century, whereas the emerging European private law may be equated with the EU market state. In the inner space of the internal market, the EU is smoothly but steadily building a genuine private law that must be kept distinct from nation state codifications. In the outer space the EU market state — and the Member States nation states — are engaged in using private law as a means to influence global governance processes. The chapter begins by clarifying the notion and concept of the market state in its relation to the EU. It then sketches out the concept of European private law as economic law within the EU and outside the EU. Finally it looks into the role of the EU market state in global governance through private law means.Less
This chapter demonstrates how the European Union, being understood as a market state, affects the private legal orders of the Member States and the design of the emerging European private legal order; first within the EU (the inner space of EU Statecraft) and second in the relations of the EU to the outside world (the outer space of European Statecraft or global governance). The national private legal orders may be equated with the pre-modern state nation and later the nation state of the twentieth century, whereas the emerging European private law may be equated with the EU market state. In the inner space of the internal market, the EU is smoothly but steadily building a genuine private law that must be kept distinct from nation state codifications. In the outer space the EU market state — and the Member States nation states — are engaged in using private law as a means to influence global governance processes. The chapter begins by clarifying the notion and concept of the market state in its relation to the EU. It then sketches out the concept of European private law as economic law within the EU and outside the EU. Finally it looks into the role of the EU market state in global governance through private law means.
Fabrizio Cafaggi
- Published in print:
- 1993
- Published Online:
- March 2012
- ISBN:
- 9780199296040
- eISBN:
- 9780191700743
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199296040.001.0001
- Subject:
- Law, EU Law
This book explores the relationship between constitutional and regulatory questions and private law, examining how European private law has developed under the influence of regional legal traditions ...
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This book explores the relationship between constitutional and regulatory questions and private law, examining how European private law has developed under the influence of regional legal traditions and the EU acquis communautaire. It focuses on the multiple actors and institutions that today contribute to legal and cultural integration within a multi-level framework, involving Member States and sub-national actors together with EU Institutions. It underlines the different roles of legislators, regulators and judges in building an integrated market which is consistent with fundamental rights and social policies while highlighting the principles and institutions that may preserve national legal identities in the context of European legal and political integration, striking a difficult balance between harmonization and differentiation. The book focuses in particular on competition and consumer law, and on tort and regulation. Attention is also drawn to the strategic role to be played by private international law. It is argued that the distinction between private and public law should be redefined by acknowledging a new balance between public institutions and private parties.Less
This book explores the relationship between constitutional and regulatory questions and private law, examining how European private law has developed under the influence of regional legal traditions and the EU acquis communautaire. It focuses on the multiple actors and institutions that today contribute to legal and cultural integration within a multi-level framework, involving Member States and sub-national actors together with EU Institutions. It underlines the different roles of legislators, regulators and judges in building an integrated market which is consistent with fundamental rights and social policies while highlighting the principles and institutions that may preserve national legal identities in the context of European legal and political integration, striking a difficult balance between harmonization and differentiation. The book focuses in particular on competition and consumer law, and on tort and regulation. Attention is also drawn to the strategic role to be played by private international law. It is argued that the distinction between private and public law should be redefined by acknowledging a new balance between public institutions and private parties.
Mark Freedland and Matthias Lehmann
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199678907
- eISBN:
- 9780191758157
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199678907.003.0005
- Subject:
- Law, EU Law, Law of Obligations
This chapter first examines the extent to which the treatment of non-discrimination in European private law represents a ‘constitutionalization of contract law’, and tries to make that assessment by ...
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This chapter first examines the extent to which the treatment of non-discrimination in European private law represents a ‘constitutionalization of contract law’, and tries to make that assessment by reference to the approaches of English and German law to that set of issues. It then discusses whether the prohibition of discrimination is an instrument of contract law, tort law, or general private law; the interaction of non-discrimination rules in European contract law with national law; and the interaction of non-discrimination rules in a European contract law instrument with rules for specific areas.Less
This chapter first examines the extent to which the treatment of non-discrimination in European private law represents a ‘constitutionalization of contract law’, and tries to make that assessment by reference to the approaches of English and German law to that set of issues. It then discusses whether the prohibition of discrimination is an instrument of contract law, tort law, or general private law; the interaction of non-discrimination rules in European contract law with national law; and the interaction of non-discrimination rules in a European contract law instrument with rules for specific areas.
Olha O. Cherednychenko
- Published in print:
- 2014
- Published Online:
- May 2014
- ISBN:
- 9780198712107
- eISBN:
- 9780191780257
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198712107.003.0006
- Subject:
- Law, EU Law, Constitutional and Administrative Law
Although it seems to be undisputed today that the harmonization of private law in the EU cannot take place without due regard for fundamental rights, many questions remain as to how and to what ...
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Although it seems to be undisputed today that the harmonization of private law in the EU cannot take place without due regard for fundamental rights, many questions remain as to how and to what extent European private law can and should be influenced by fundamental rights. This chapter aims to explore these issues in the context of financial services and consists of two major parts. The first part discusses legal constructs which may serve as gateways to the impact of EU fundamental rights on European private law in the light of the constitutional limits to such impact. Drawing upon this analysis, the second part of the contribution examines the actual and potential impact of EU fundamental rights on European financial services law, with emphasis on three major issues arising in this field: (1) consumer access to financial services; (2) substantive consumer protection in financial services; and (3) procedural consumer protection in financial services.Less
Although it seems to be undisputed today that the harmonization of private law in the EU cannot take place without due regard for fundamental rights, many questions remain as to how and to what extent European private law can and should be influenced by fundamental rights. This chapter aims to explore these issues in the context of financial services and consists of two major parts. The first part discusses legal constructs which may serve as gateways to the impact of EU fundamental rights on European private law in the light of the constitutional limits to such impact. Drawing upon this analysis, the second part of the contribution examines the actual and potential impact of EU fundamental rights on European financial services law, with emphasis on three major issues arising in this field: (1) consumer access to financial services; (2) substantive consumer protection in financial services; and (3) procedural consumer protection in financial services.
Reinhard Zimmermann, Kenneth Reid, and Daniel Visser (eds)
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199271009
- eISBN:
- 9780191699481
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199271009.001.0001
- Subject:
- Law, Comparative Law
Placed uniquely at the intersection of common law and civil law, mixed legal systems are today attracting the attention both of scholars of comparative law, and of those concerned with the ...
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Placed uniquely at the intersection of common law and civil law, mixed legal systems are today attracting the attention both of scholars of comparative law, and of those concerned with the development of a European private law. Pre-eminent among the mixed legal systems are those of Scotland and South Africa. In South Africa the Roman-Dutch law, brought to the Cape by the Dutch East India Company in 1652, was from the early nineteenth century onwards infused with and re-moulded by the common law of the British imperial master. In Scotland, a more gradual and elusive process saw the Roman-Scots law of the early modern period fall under the influence of English law after the Act of Union in 1707. The result, in each case, was a system of law which drew from both of the great European traditions whilst containing distinctive elements of its own. This volume sets out to compare the effects of this historical development, by assessing whether shared experience has led to shared law. Key topics from the law of property and obligations are examined, collaboratively and comparatively, by teams of leading experts from both jurisdictions. The individual chapters reveal an intricate pattern of similarity and difference, enabling courts and legal writers in Scotland and South Africa to learn from the experience of a kindred jurisdiction. They also, in a number of areas, reveal an emerging and distinctive jurisprudence of mixed systems, and thus suggest viable answers to some of the great questions which must be answered on the path towards a European private law.Less
Placed uniquely at the intersection of common law and civil law, mixed legal systems are today attracting the attention both of scholars of comparative law, and of those concerned with the development of a European private law. Pre-eminent among the mixed legal systems are those of Scotland and South Africa. In South Africa the Roman-Dutch law, brought to the Cape by the Dutch East India Company in 1652, was from the early nineteenth century onwards infused with and re-moulded by the common law of the British imperial master. In Scotland, a more gradual and elusive process saw the Roman-Scots law of the early modern period fall under the influence of English law after the Act of Union in 1707. The result, in each case, was a system of law which drew from both of the great European traditions whilst containing distinctive elements of its own. This volume sets out to compare the effects of this historical development, by assessing whether shared experience has led to shared law. Key topics from the law of property and obligations are examined, collaboratively and comparatively, by teams of leading experts from both jurisdictions. The individual chapters reveal an intricate pattern of similarity and difference, enabling courts and legal writers in Scotland and South Africa to learn from the experience of a kindred jurisdiction. They also, in a number of areas, reveal an emerging and distinctive jurisprudence of mixed systems, and thus suggest viable answers to some of the great questions which must be answered on the path towards a European private law.
Hans-W. Micklitz
- Published in print:
- 2016
- Published Online:
- June 2016
- ISBN:
- 9780198744566
- eISBN:
- 9780191805868
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198744566.003.0002
- Subject:
- Law, EU Law, Public International Law
This chapter discusses the internal and external dimensions of EU law, by first drawing distinctions between the two. The internal dimension refers to the scope of EU law, which is restricted to the ...
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This chapter discusses the internal and external dimensions of EU law, by first drawing distinctions between the two. The internal dimension refers to the scope of EU law, which is restricted to the number of Member States which have joined the EU. The external dimension is outward-looking, the attempt to analyse and define the reach and effect of European private law outside the territory of the EU. ‘Europeanizing’ private international law necessarily entails difficult distinctions between what is inside and what is outside. One possible solution to the problems of making this distinction and permit Euoprean private law to become and remain truly international would be to adopt a European private international law which is universally applicable. This would imply that the same rules apply to trans-border conflicts between Member States and to trans-border conflicts between Member States and non-Member States.Less
This chapter discusses the internal and external dimensions of EU law, by first drawing distinctions between the two. The internal dimension refers to the scope of EU law, which is restricted to the number of Member States which have joined the EU. The external dimension is outward-looking, the attempt to analyse and define the reach and effect of European private law outside the territory of the EU. ‘Europeanizing’ private international law necessarily entails difficult distinctions between what is inside and what is outside. One possible solution to the problems of making this distinction and permit Euoprean private law to become and remain truly international would be to adopt a European private international law which is universally applicable. This would imply that the same rules apply to trans-border conflicts between Member States and to trans-border conflicts between Member States and non-Member States.
Stephen Weatherill and Aurelia Colombi Ciacchi
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199594559
- eISBN:
- 9780191595714
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199594559.003.0003
- Subject:
- Law, Comparative Law, EU Law
This chapter begins with a discussion of the different forms and shapes of suretyships, and the diverse legal responses to them. It then addresses the question of whose interests should prevail. This ...
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This chapter begins with a discussion of the different forms and shapes of suretyships, and the diverse legal responses to them. It then addresses the question of whose interests should prevail. This is followed by discussions covering information disclosure and form-based requirements, intervention in the terms of the suretyship contract, legal rules affecting the context in which suretyships are agreed and enforced, and the constitutional dimension to the control exercised over private relationships, including contracts.Less
This chapter begins with a discussion of the different forms and shapes of suretyships, and the diverse legal responses to them. It then addresses the question of whose interests should prevail. This is followed by discussions covering information disclosure and form-based requirements, intervention in the terms of the suretyship contract, legal rules affecting the context in which suretyships are agreed and enforced, and the constitutional dimension to the control exercised over private relationships, including contracts.
Norbert Reich
- Published in print:
- 1993
- Published Online:
- March 2012
- ISBN:
- 9780199296040
- eISBN:
- 9780191700743
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199296040.003.0008
- Subject:
- Law, EU Law
In examining European private law, this chapter concentrates on the transformation of contract law through discussing the three fundamental functions of modern European contract law — autonomy, ...
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In examining European private law, this chapter concentrates on the transformation of contract law through discussing the three fundamental functions of modern European contract law — autonomy, regulation, and information. Autonomy refers to how the subjects of private law, particularly business entities, consumers, and other such actors, are able to proceed with efficient and secure economic transactions despite having to face certain restrictions. Looking into regulatory function entails how certain restrictions and contracts have become incorporated within consumer law. Lastly, the chapter investigates on how information may be viewed with certain ambiguities since such is already found in traditional rules. For this analysis, however, the author focuses more on the subtle and differentiated rules on the provision of information and how such may be required by law since information is relevant for rational decision-making.Less
In examining European private law, this chapter concentrates on the transformation of contract law through discussing the three fundamental functions of modern European contract law — autonomy, regulation, and information. Autonomy refers to how the subjects of private law, particularly business entities, consumers, and other such actors, are able to proceed with efficient and secure economic transactions despite having to face certain restrictions. Looking into regulatory function entails how certain restrictions and contracts have become incorporated within consumer law. Lastly, the chapter investigates on how information may be viewed with certain ambiguities since such is already found in traditional rules. For this analysis, however, the author focuses more on the subtle and differentiated rules on the provision of information and how such may be required by law since information is relevant for rational decision-making.
Chantal Mak
- Published in print:
- 2014
- Published Online:
- May 2014
- ISBN:
- 9780198712107
- eISBN:
- 9780191780257
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198712107.003.0008
- Subject:
- Law, EU Law, Constitutional and Administrative Law
This chapter explores the place of Article 47 of the EU Charter of Fundamental Rights (right to an effective remedy) in European private law and assesses whether this provision could form the basis ...
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This chapter explores the place of Article 47 of the EU Charter of Fundamental Rights (right to an effective remedy) in European private law and assesses whether this provision could form the basis of a judge-made European law on remedies. In order to make this assessment, first, the development of the right to effective judicial protection in EU law is sketched and the relationship of EU fundamental rights to European private law is explained. Subsequently, instances of the application of Article 47 of the EU Charter of Fundamental Rights in the case law of the Court of Justice of the EU are examined (including Alassini, Kadi, Otis, and Fuß/Stadt Halle). In light of the contemplation of the influence of the right to effective judicial protection in European private law, finally, the thesis is elaborated that, within certain boundaries, Article 47 can indeed support the further judicial development of effective remedies in European private law.Less
This chapter explores the place of Article 47 of the EU Charter of Fundamental Rights (right to an effective remedy) in European private law and assesses whether this provision could form the basis of a judge-made European law on remedies. In order to make this assessment, first, the development of the right to effective judicial protection in EU law is sketched and the relationship of EU fundamental rights to European private law is explained. Subsequently, instances of the application of Article 47 of the EU Charter of Fundamental Rights in the case law of the Court of Justice of the EU are examined (including Alassini, Kadi, Otis, and Fuß/Stadt Halle). In light of the contemplation of the influence of the right to effective judicial protection in European private law, finally, the thesis is elaborated that, within certain boundaries, Article 47 can indeed support the further judicial development of effective remedies in European private law.
John O. Haley (ed.)
- Published in print:
- 2011
- Published Online:
- June 2013
- ISBN:
- 9780804772730
- eISBN:
- 9780804777612
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804772730.003.0002
- Subject:
- Economics and Finance, Development, Growth, and Environmental
This chapter traces the historical process that led to the rise of one of the specific features of the Western legal tradition, the emphasis on private law and the reliance on adjudication disputes. ...
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This chapter traces the historical process that led to the rise of one of the specific features of the Western legal tradition, the emphasis on private law and the reliance on adjudication disputes. It examines a parallel historical process of fragmented power structures in Japan that partly accounted for the emergence of a similar Japanese legal tradition of adjudication as the primary means of formal law enforcement. However, in comparison with Western legal tradition, there is a distinct absence of a conceptual system of law or legal rights that could enable recognition of substantive rules and analogous principles of private or public laws. Still, this chapter notes that this historical background of political fragmentation and reliance on adjudication laid the foundation for the successful reception of European private law during the late nineteenth century.Less
This chapter traces the historical process that led to the rise of one of the specific features of the Western legal tradition, the emphasis on private law and the reliance on adjudication disputes. It examines a parallel historical process of fragmented power structures in Japan that partly accounted for the emergence of a similar Japanese legal tradition of adjudication as the primary means of formal law enforcement. However, in comparison with Western legal tradition, there is a distinct absence of a conceptual system of law or legal rights that could enable recognition of substantive rules and analogous principles of private or public laws. Still, this chapter notes that this historical background of political fragmentation and reliance on adjudication laid the foundation for the successful reception of European private law during the late nineteenth century.
Kenneth Reid and Reinhard Zimmermann (eds)
- Published in print:
- 2000
- Published Online:
- March 2012
- ISBN:
- 9780198299288
- eISBN:
- 9780191685651
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198299288.001.0001
- Subject:
- Law, Constitutional and Administrative Law, Legal History
Scotland has a special claim for the attention of comparative lawyers, of legal historians, and of those who seek to identify a common core in European private law or to develop a new jus commune. ...
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Scotland has a special claim for the attention of comparative lawyers, of legal historians, and of those who seek to identify a common core in European private law or to develop a new jus commune. For Scotland stands at the intersection of the two great traditions of European law—of the law of Rome, received and developed in Continental Europe, and of the law which originated in England but was exported throughout the British Empire. In Scotland, uniquely in Europe, there is to be found a fusion of the civil law and the common law. Law in Scotland has a long history, uninterrupted either by revolution or by codification. It is rich in source material, both printed and archival. Yet hitherto the history of legal doctrine has been relatively neglected. This work is the first study in the field of private law. Its method is to take key topics from the law of obligations and the law of property and to trace their development from earliest times to the present day. It shows that the reception of civil law was slow but profound, beginning in the medieval period and continuing until the 18th century. Canon law was also influential. This was flanked by two receptions from England, of Anglo-Norman feudalism in the 12th century and beyond, and, more enduringly, of aspects of English common law in the 19th and 20th centuries. In addition there was much that was home-grown. Over time this disparate mixture was transformed by legal science into a coherent whole.Less
Scotland has a special claim for the attention of comparative lawyers, of legal historians, and of those who seek to identify a common core in European private law or to develop a new jus commune. For Scotland stands at the intersection of the two great traditions of European law—of the law of Rome, received and developed in Continental Europe, and of the law which originated in England but was exported throughout the British Empire. In Scotland, uniquely in Europe, there is to be found a fusion of the civil law and the common law. Law in Scotland has a long history, uninterrupted either by revolution or by codification. It is rich in source material, both printed and archival. Yet hitherto the history of legal doctrine has been relatively neglected. This work is the first study in the field of private law. Its method is to take key topics from the law of obligations and the law of property and to trace their development from earliest times to the present day. It shows that the reception of civil law was slow but profound, beginning in the medieval period and continuing until the 18th century. Canon law was also influential. This was flanked by two receptions from England, of Anglo-Norman feudalism in the 12th century and beyond, and, more enduringly, of aspects of English common law in the 19th and 20th centuries. In addition there was much that was home-grown. Over time this disparate mixture was transformed by legal science into a coherent whole.
Kathleen Gutman
- Published in print:
- 2014
- Published Online:
- March 2015
- ISBN:
- 9780199698301
- eISBN:
- 9780191748882
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199698301.001.0001
- Subject:
- Law, EU Law, Constitutional and Administrative Law
This book provides a cohesive assessment of the extent of the EU’s competence in the field of contract law and an extensive comparative study of the American contract law framework. It analyses the ...
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This book provides a cohesive assessment of the extent of the EU’s competence in the field of contract law and an extensive comparative study of the American contract law framework. It analyses the limits of Union competence in relation to several relevant Treaty provisions that potentially confer competence on the Union to adopt a comprehensive contract law instrument and the exercise of Union competence through the operation of the principles of subsidiarity, proportionality, and sincere cooperation. It also explores the viability of several alternative and complementary routes to the adoption of such an instrument, such as enhanced cooperation, an intergovernmental treaty, and certain so-called ‘softer’ models, which include the American techniques of Restatements, uniform and model laws, and the Uniform Commercial Code. To lay the groundwork for this analysis, this book sets forth an elaborate account of the context for the debate about European contract law and its chronological development at the European level through present day events, including the Draft Common Frame of Reference, the Consumer Rights Directive, and the proposed Regulation on a Common European Sales Law. Fundamentally, it is an interdisciplinary work cutting across several fields of EU law and a novel comparative work on the approach taken to the approximation of contract law in the EU and the US.Less
This book provides a cohesive assessment of the extent of the EU’s competence in the field of contract law and an extensive comparative study of the American contract law framework. It analyses the limits of Union competence in relation to several relevant Treaty provisions that potentially confer competence on the Union to adopt a comprehensive contract law instrument and the exercise of Union competence through the operation of the principles of subsidiarity, proportionality, and sincere cooperation. It also explores the viability of several alternative and complementary routes to the adoption of such an instrument, such as enhanced cooperation, an intergovernmental treaty, and certain so-called ‘softer’ models, which include the American techniques of Restatements, uniform and model laws, and the Uniform Commercial Code. To lay the groundwork for this analysis, this book sets forth an elaborate account of the context for the debate about European contract law and its chronological development at the European level through present day events, including the Draft Common Frame of Reference, the Consumer Rights Directive, and the proposed Regulation on a Common European Sales Law. Fundamentally, it is an interdisciplinary work cutting across several fields of EU law and a novel comparative work on the approach taken to the approximation of contract law in the EU and the US.
Oliver Gerstenberg
- Published in print:
- 2018
- Published Online:
- February 2019
- ISBN:
- 9780198834335
- eISBN:
- 9780191872433
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198834335.003.0002
- Subject:
- Law, Constitutional and Administrative Law
At a first glance, to many observers the EU may appear to be an improbable illustration of the possibility of an extension of legitimacy and democratic justice beyond the state. In contemporary ...
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At a first glance, to many observers the EU may appear to be an improbable illustration of the possibility of an extension of legitimacy and democratic justice beyond the state. In contemporary European constitutional debate constitutionalism and social democracy have become antagonists, with the survival of the one seeming to require sacrifice of the other. Authors in the tradition of ordoliberalism have celebrated the Europeanization process because it seemed to ultimately disconnect constitutionalism from democratic practice and to firmly entrench a logic of market evolution that marginalizes politics. Social democrats, by contrast, have come to believe that democracy can only flourish if the solidary politics of the nation retains its sovereignty against cosmopolitan, ‘constitutional’ intrusions from without. Proposals to deepen constitutional integration therefore give rise to the social-democratic objection. This chapter offers a stylized account of both views, which more or less mirror one another. This chapter then also provides an in-depth analysis of the CJEU’s jurisprudence in various domains regarding the efficacy of the Charter of Fundamental Rights of the EU (CFREU) in European private law: employment law and unfair terms in consumer contracts in particular. The chapter concludes that, contrary to expectations and concerns about a constitutional asymmetry between economic freedoms and fundamental social rights, the CJEU has in fact in many cases raised the standard of protection beyond the standard envisaged by national legal orders, thereby unblocking development.Less
At a first glance, to many observers the EU may appear to be an improbable illustration of the possibility of an extension of legitimacy and democratic justice beyond the state. In contemporary European constitutional debate constitutionalism and social democracy have become antagonists, with the survival of the one seeming to require sacrifice of the other. Authors in the tradition of ordoliberalism have celebrated the Europeanization process because it seemed to ultimately disconnect constitutionalism from democratic practice and to firmly entrench a logic of market evolution that marginalizes politics. Social democrats, by contrast, have come to believe that democracy can only flourish if the solidary politics of the nation retains its sovereignty against cosmopolitan, ‘constitutional’ intrusions from without. Proposals to deepen constitutional integration therefore give rise to the social-democratic objection. This chapter offers a stylized account of both views, which more or less mirror one another. This chapter then also provides an in-depth analysis of the CJEU’s jurisprudence in various domains regarding the efficacy of the Charter of Fundamental Rights of the EU (CFREU) in European private law: employment law and unfair terms in consumer contracts in particular. The chapter concludes that, contrary to expectations and concerns about a constitutional asymmetry between economic freedoms and fundamental social rights, the CJEU has in fact in many cases raised the standard of protection beyond the standard envisaged by national legal orders, thereby unblocking development.
