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October 18, 2010

Week 2 – The realities of unifying contract law in Europe: an introduction

Harmonisation between Member States of the EU in any legal arena can offer a huge amount of security and unity between 27 often disparate legal traditions – yet the Union is often depicted either as the brash bogeyman, disregarding and purging swathes of well-rooted domestic law, or too limp to bring about the change it dreams of.

This is particularly the case in the field of contract law. Academics, the Commission and the Parliament have all highlighted the benefits of how harmonisation in this area would afford a huge degree of convenience and advantage to consumers as well as businesses, who otherwise remain lost in a maze of competing legal systems. Any movement towards harmonisation in this area by an originally economic Union is therefore logical, and a multitude of academic developments and projects reflect its appeal.

However, reality is less kind to these engagements. Putting these proposals into hard law poses a series of insurmountable issues: firstly, codification has been mooted through academic channels as a possible solution, running alongside current domestic codes. The disparate nature of European legal traditions does unfortunately undermine these efforts, especially with the British and Irish trend of shying away from codified law. The vast mix of languages involved also is problematic here when the translation of ‘legalese’ is considered – with legal phrasings often being interpreted strictly and specifically within domestic legal orders. More globally, the fear of a pan-European, homogenised standard of law can strike fear into even the mildest of natural lawyers – with the critique that unification en masse slows legal development and ingenuity in this ever-expanding field of law.

These challenging issues highlight the difficulty of harmonising law in this field – even before any individual civil law constructs and ideas are analysed. Before any complex and varying components of European civil law can be broken down, it can be seen that an uncertain and questionable foundation for harmonisation in this area exists – and remains the reasoning as to why movements in this area are often confined to soft law, ‘opt-in’ works of academic merit, rather than direct hard law of a secure European Union.

The focus of this blog therefore will be a comparative reflection on the civil law of European countries, highlighting the differences, similarities, advantages and disadvantages of individual alternative legal systems throughout the year.


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Links Used

EU Consumer Protection:
http://ec.europa.eu/consumers/rights/gen_rights_en.htm

Notices and Other Communications under UNCITRAL:
http://kluwerconstructionblog.com/2010/08/30/updating-the-uncitral-arbitration-rules/

The Right of Withdrawal and Unfair Contract Terms:
http://www.casebooks.eu/consumerLaw/chapter4/

Law Society speaks out on EU consumer contract law:
http://international.lawsociety.org.uk/node/5794

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