Exporting economic democracy. Social Justice and private law from the point of view of non-European countries (original) (raw)
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Under EU law, contracts continue to play their traditional role within national systems, but no have been inserted into a new legal framework and have purposes beyond the traditional ones. The contract is no longer an isolated area, which governs the relationships between the parties, regardless of the context. Within the EU law, it can be observed on one hand a growing number of integrative interventions to protect the fundamental rights and the weaker parties (it is the case of the discipline concerning the consumers or protecting the SMEs). Thus, the EU law considers the legal subjects and their relationships from a global approach, no longer from the restricted perspective of the relations between the parties.
Principles and Rules in the Emerging European Contract Law
in (2013) 9 European Review of Contract Law, pp.
Legal principles play an important role in any system of law. Following the European Court of Justice, the treaties of the European Union have embraced the concept of "principles of law", mainly as a means to guarantee individual human rights in public and constitutional law. More recently, however, the ECJ has come to recognize as "general principles" private law and contract law norms and values. Furthermore, the notion of "principles" has played a key-role in impressive unificationb projects which aimed to promote convergence of national laws in Europe, such as the PECL ("Principles of European Contract Law") and the DCFR ("Draft Common Frame of Reference"). The proposed "Commen European Sales Law" (CESL) also opens with a separate chapter dedicated to "general principles" of contract law. The article invites the reader to think more carefully and critically about the role played by alleged "principles" in the law generally, and in the evolving European law of contract in particular. Part II points out the instability and vagueness of the concept of a legale "principle". Part III presents an original theoretical model which aims to reduce the inherent vagueness surrounding the concept and the distinction between legal rules and legal principles. The model suggests that while principles do often differ from tules in other respects as well (e.g., in their substantive content or analytical structure), these common distinctions fail to capture the most essential difference between pricniples and rules, which lies in their sharply distinct political function. Part IV applies this generale thesis to the multi-level constitutional architecture of European law, coming to the conclusion that the principles of European private law are those common core norms which are shared by the laws of most Meber States (ius commune europaeum). Part V applies and illustrates this claim on the various instruments by which the Union has attempted to promote the unification of contract law across Europe. Part VI concludes by claiming that the EUropean principles, including that ofsubsidiarity, are best understood as a balancing device by which the Union adjusts the level of regulation between legislature and cours on the one hand, and between the supranation and national powers on the others.
Towards a (Post)modern European Contract Law
A discussion of the development of a European private law and a European contract law is very appropriate here on Estonian soil. After regaining its independence, Estonia, together with the other newly independent states, has had the unique opportunity to completely recreate its private law system. Estonia has been forced to look at private law experiences in various parts of Europe and the world when making decisions concerning its own future. By necessity, Estonia as well as the other countries in the same position, have become showcases of the ongoing processes of the Europeani- sation of private law. Estonia has, for various reasons, including its pre-Soviet historical background, in principle decided to base the development of its private law on the German model.*1 From the point of view of Europeanisation, this seems, at the outset, like a step backwards ó why look (back) toward the law of a certain country, when legal ideas are moving across borders in Europe at an ever-incre...
Practical Handbook on European Private International Law
2012
This Handbook is elaborated within the project “Improving the knowledge on new EU regulations of the members of the national Judicial networks in civil and commercial matters in the MS of the EU”, Civil Justice Programme 2010. The Handbook is divided into two parts: Part I The Law Applicable to Contractual and Non-Contractual Obligations and Obtaining the Information on Foreign Law 1. Introduction 2. Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Regulation Rome I) 3. Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to noncontractual obligations (Regulation Rome II) 4. Obtaining the content of foreign law Part II Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 5. The Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments...
European Contract Law and Social Justice
To be published in: Elgar Research Handbook on EU Consumer and Contract Law, Christian W. Twigg-Flessner (ed.)
In this paper it is argued that social justice plays a role in European contract law by discussing the role of contract law and social justice within the European Union.