23 April 2008

New Papers: Jan Smits on European Private Law

Professor Jan Smits (Tilburg University and the new Tilburg Institute of Comparative and Transnational Law, TICOM) has posted several new papers in the area of European Private Law on SSRN:

Jan M. Smits, 'A European Law on Unjustified Enrichment? A Critical View of the Law of Restitution in the Draft Common Frame of Reference (CFR)' (forthcoming in: EUROPEAN PRIVATE LAW BEYOND THE CFR, Antoni Vaquer, ed., Tilburg, 2008). Download here. This is the abstract:

This contribution discusses the European principles on unjustified enrichment as recently published in the Draft Common Frame of Reference (2007). These principles (or rather: model rules) were drafted with a view to the improvement and elaboration of the present European acquis in the field of private law. This contribution considers not so much the substantive details of the new model rules, but more the need for and the function of drafting principles in this area of the law. This is a legitimate approach as the law of restitution is traditionally not a core area of European legislative intervention. It is concluded that, in view of the multilevel regulation of European private law, enrichment law is better regulated at the national level than at the European one.

Jan M. Smits, 'Law Making in the European Union: On Globalization and Contract Law in Divergent Legal Cultures' (67 Louisiana Law Review, 1181-1203 (2007)). Download here. This is the abstract:

An important problem of law making in a globalizing world is how to deal with diverging national legal cultures. Since the emergence of the nation-state, law making has primarily been a task for the national legislatures and courts. They `make' law for relatively homogeneous societies that are usually characterized by a common language and culture. As a result of increasing globalization, this is now rapidly changing. If the law is to retain its role of regulating society (be it no longer a national, but a global one), new ways of making and enforcing law have to be found. This article offers an account of how to deal with some questions caused by increasing globalization in the field of private law. This account is not a general and theoretical one, but one that is based on the experience of the European Union (EU) in the field of contract law. European contract law is thus used as paradigmatic for globalisation and private law as a whole. There is every reason to do so: the European Union has wide experience with making law for diverging jurisdictions. In addition to this, contract law can be considered one of the most important vehicles for globalization as it facilitates economic transactions.

Jan M. Smits, 'Convergence of Private Law in Europe: Towards a New Ius Commune?' (in: COMPARATIVE LAW: A HANDBOOK, Esin Örücü & David Nelken, eds., pp. 219-240, Oxford: Hart Publishing, 2007). Download here. This is the abstract:

This contribution - a chapter in a well-known textbook on comparative law - discusses several of the questions which the emergence of a European private law raises. First, attention is paid to the need for convergence of private law: what are the reasons usually given for harmonising or unifying private law and are these reasons in any way convincing? Secondly, the question is raised how convergence of private law takes place at present. Thus, unification by treaties and harmonisation through Directives are discussed, together with the far-ranging idea of creating a European civil code. A third question is whether convergence of private law is at all possible. Some have argued that the differences among the 28 private law systems we have in Europe (27 national systems and Scots law) are too large to come to any real convergence. Finally, various other methods to reach (further) convergence of private law in Europe will be considered. Should the European Union continue with the present harmonisation process by issuing European directives or should other methods (also) be used to reach more convergence of law? For instance, such wide-ranging pleas have been made for promoting a European legal science and education and for convergence of law through competition of legal systems.

Keep an eye out also for the new Tilburg Institute of Comparative and Transnational Law - TICOM Research Paper Series on SSRN.

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