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Introduction to the Principles of European Contract Law (PECL)

Participants in the work of the Commission

Chairman of the Commission
Ole Lando [Denmark]

Members of First Commission
[preparatory meetings commenced
in December of 1980]
Members of Second Commission
[Meetings: September 1992 through
May 1996]
Brigitte Berlioz-Houin [France]
Massimo Bianca [Italy]
Michael Joachim Bonell [Italy]
Ulrich Drobnig [Germany]
André Elvinger [Luxembourg]
Dimitri Evrigenis [Greece]
Roy M. Goode [England]
Guy Horsmans [Belgium
Roger Houin [France]
Ole Lando [Denmark]
Bryan McMahon [Ireland]
Denis Tallon [France]
J.A. Wade [Asser Institute]
Frans J.A. van der Velden [Netherlands]
William A. Wilson [Scotland]

Additional members
Hugh Beale [England]
Alberto Bercovitz [Spain]
Isabel de Magelães Collaço [Portugal]
Konstantinos Kerameus [Greece]
Georges Rouhette [France]
Claude Witz [France]
Reinhard Zimmerman [Germany]

Observers
Franz Werro [Switzerland]
Christian von Bar [Germany]
Hugh Beale [England]
Michael Joachim Bonell [Italy]
Michael Bridge [England]
Carlo Castronovo [Italy]
Isabel de Magelhães Collaço [Portugal]
Ulrich Drobnig [Germany]
Marc Elvinger [Luxembourg]
Arthur Hartkamp [Netherlands]
Ewoud Hondius [Netherlands]
Guy Horsmans [Belgium]
Konstantinos Kerameus [Greece]
Ole Lando [Denmark]
Bryan McMahon [Ireland]
Georges Rouhette [France]
Pablo Salvadore Coderch [Spain]
Matthias E. Storme [Belgium]
Denis Tallon [France]

Additional members
Hector McQueen [Scotland]
Willibald Posch [Austria]
Jan Ramberg [Sweden]
Thomas Wilhelmsson [Finland]


Kai Krüger [Norway]


Excerpts from a commentary on the work of the Commission
[Full text of commentary presented below]

"Each member's intention is to report on his or her respective national legal rules in order to facilitate the co-operative discovery of the common core of all European private law systems."

'"[T]he evolution of contract law must be seen in the light of the expansion and internationalisation of trade and economics."

"[T]he work of the Lando-Commission resembles . . . that of the American Law Institute (ALI). The ALI is a private organisation of lawyers working on a systematic set of legal rules common to all states of the USA, published in several volumes: the Restatements on the Law. For, in the United States, as in the European Union, there are considerable differences between the contract laws of the individual states, and a common core has to be found. The American Law Institute began publishing Restatements as early as the beginning of the 1920s. This non-governmental, scientific initiative furthered a debate which has been based on common concepts and one common legal method. Without doubt a comparison between the Lando-Commission and the American Law Institute can be drawn; in fact, the Lando-Commission explicitly refers, in the introduction to the PECL Part I, to the Restatements as a model, and the PECL have been called 'European Restatements'. Both initiatives provide solutions for lawyers and national courts in cases where their own law is silent or where their law is in need of reform, and such reform may be brought about by the courts."


Reproduced with permission of Kluwer: published in European Review of Private Law (2000) issue 1

The Work of the Lando-Commission from an Alternative Viewpoint

Kristina Riedl
University of Salzburg and European University Institute, Florence

Introduction
I. Extended perspectives on the Lando-Commission and its work

a. European (dis-)integration of private law
b. The paradigm shift in the law governing contractual relations
III. A narrower perspective than the Lando-Commission's perspective
a. Mandatory Europeanisation: law making from 'above'
b. Optional Europeanisation: the alternative approach from 'below'
Conclusion

Introduction

One way to approach the complex issue of Europeanisation of Private Law is to focus on private initiatives. The Lando-Commission [1] is one of them. It has become one of the most noted 'non-governmental' unification projects within private law. For more than twenty years an ever growing number [2] of legal academics drawn from all the Member States of the European Community has been working on behalf of this project, elaborating common European principles of contract law ('The Principles of European Contract Law', PECL).[3]

There is a clear and convincing reason why, in the early seventies, the Lando-Commission initiated a project to achieve a Community-wide uniform legal basis for contract law: the Lando-Commission begins from the supposition that the mere unification of international private law rules cannot satisfy the needs of the common European market. The unification of rules on 'choice of law' cannot avoid the fact that, for instance, for a Milan pasta producer, Palermo is closer than Munich.[4] This geographic/economic paradox stems from the fact that differences between the legal systems of the Member States give rise to transaction costs for businessmen. From this geographic/economic point of view, trading under the laws of one country seems more attractive than exporting goods under foreign and usually less familiar laws - even if the frontier might be near at hand. The example mirrors the problematical situation to which the whole idea of the European market integration must respond: divergent rules of contract law may give rise to distortions of competition or deter businessmen or consumers from cross-border sale or purchase of goods and services. Thus, in order to complete a common market without frontiers, one must eliminate such obstacles to cross-border contracts, created by differing national rules of contract law.[5] The unification of rules on 'choice of law', such as the EEC Convention on the Law Applicable to Contractual Obligations,[6] may have its merits but necessarily fails in terms of market integration. For, assuming the existence of different legal systems, the idea of unifying international private law cannot sufficiently respond to the practical needs of the common market.[7] The Lando-Commission proposes a Community-wide, uniform 'infrastructure' for the contractual relationships of parties doing business. It provides for a set of rules detached from national legal systems and thus facilitating cross-border trade within Europe. Apparently, projects such as the Lando-Commission provide a solution to very practical needs.[8] By the same token, however, the presentation and analysis of the work of the Lando-Commission reveal the normative concerns behind such an initiative. In fact, the demands of the business world for common European rules only indicate the tip of an 'iceberg' lying underneath.

What makes the Lando-Commission and the PECL interesting is the fact that the project does not simply attempt to resolve the practical concerns mentioned (limited to its pragmatic function the effect of the PECL law appears a little unrealistic; one may indeed wonder, if the collection of mere 'Principles' can at all meet the needs of the highly specialised and complex business community of modern Europe). What at first sight seems to be too cautious an approach, acquires a rather complex dimension once we look at the range of controversial fundamental and policy issues underlying the Europeanisation process. The most striking development is the rise of a new scheme of governance distinct from traditional governance structures: the building of the European Union has brought about a system of 'multi-level governance' in Europe.[9] In transforming sovereign European nation states into members of a new political entity sui generis, the classical dualism of states and international organisation has been transgressed. New forms of non-national and non-state structures of governance have been established, regulatory policies have been Europeanised. Applying this perspective to the field of private law, the impact of European integration on (systems of) national private law becomes discernible. Since the building of the European entity has been guided by strategies of market building, new institutional frameworks of economic and social regulation have been created. Market-driven regulations at European level have been increasingly intervening in national private law. Europe, and no longer the legislation of the Member States, determines the extent of the realm of private ordering. Thus, the efforts of the Lando-Commission have to be seen in the light of the emergence of this new scheme of governance in Europe. From this 'constitutional vantage point', the exemplary nature of the work of the Lando-Commission becomes visible.

It is this vision which I will elaborate in this paper. The essence of my argument is to perceive the Lando-Commission as working in two, at first sight contrasting, directions: a wide and a narrow one. The wide perspective on the one hand does not confine the project of the Lando-Commission merely to its pragmatic function; the Lando-Commission is more than just the answer to the practical needs of the business world. It serves, at the same time, to correct the deficiencies in such ongoing processes as the Europeanisation of private law and/or the trans-nationalisation of contract law. The narrow perception on the other hand limits the critical function attributed to the Lando-Commission to that of a 'non-legislative' project of contract law unification. This latter view differs from the Lando-Commission's self-perception as a 'legislative' project.[10]

According to these thoughts, the article is structured as follows. In the first part of the narrative (I.), I will outline the wide view of the Lando-Commission's project, arguing that the Lando-Commission's endeavour represents a symptom of both the impact of European integration on private law (I.a.) and the general paradigm shift in contract law (I.b.). Drawing upon the conclusions from this more expansive account, I will turn to the narrow account of the Lando-Commission's project in the second part of the narrative (II.), arguing that the Lando-Commission's desire for codification is too ambitious an outlook (II.a) and that Europeanisation from 'below' [11] might be a more satisfactory response to the peculiarities of the Europeanisation process (II.b.). In light of the insights obtained, one wonders how the critical functions attributed to the Lando-Commission can be realised. In the conclusion, I devote particular attention to one institutional actor which might be able to fulfil this task: the European judiciary.

I. Extended Perspectives on the Lando-Commission and Its Work

a. European (Dis-)Integration of Private Law

In the process of European integration we are confronted with a striking paradox: on the one hand, the law has been the main tool for integration. On the other hand, this same law has operated as a disruptive factor when it comes to the coherence of national legal systems.[12] The impact of a body of supranational rules on the municipal level has sometimes had the effect of making the unity and rationality which are necessary for the efficient operation of the legal machine less attainable. The structure of national legal systems has being subjected to Community regulation, so that the basic orientation of our legal systems as well as individual legal fields have been affected; for legal academics in particular, confusion rather than order has gained the upper hand. In Europe one is thus dealing with a meta-national reshaping of private law rules, which can no longer be explained without giving serious consideration to the ongoing and pervasive number of disintegrative processes. The background-logic of these influences is strongly characterised by rationales of an economic and social nature: since the building of the European entity has been guided by strategies of market building, new institutional frameworks of economic and social regulation have been created. These European activities in economic law and social regulation do not only affect the European economy but also the (national) development of private law. In this context, examples of market-driven regulations at the European level might be discussed which have had a selective impact on national private law, such as the Directive on Unfair Terms in Consumer Contracts.[13] The result of such an analysis (which I cannot undertake in this essay, since I am restricting myself to the work of the Lando-Commission) would clearly demonstrate that it is no longer the legislation of the Member States which determines the extent of the 'private', but European economic and social regulation, following a logic quite distinct from traditional law-making policies of nation states.

There are different ways to respond to these meta-national influences on our law. One is to accept them as anomalies. Another is to assimilate the resulting changes into the existing legal systems. However, the European machine is accelerating, producing an ever confusing amount of supranational rules and thereby extensively affecting the deeper structures of our legal systems. It is becoming more and more doubtful whether our traditional legal systems are able to respond to these developments in a satisfactory way.[14] An alternative approach to the scenario outlined has been undertaken by the Lando-Commission. The PECL, to 'consolidate the rapidly expanding volume of Community law regulating specific types of contract',[15] provide for a legal framework of common European principles - a Community-wide infrastructure of contract law. The promising potential of the Lando-Commission is to reach a compromise between the obvious need for a common legal framework of contract law and the patchwork character of European legislative activities. The merits and fascination of such an approach seem to derive from an implicit scepticism: the Lando-Commission's initiative is a symptom of the failing process of integration as far as private law is concerned; ie, the institutional incapacity, at both European and national level, to cope with the complexity of legal integration.

Considering both these levels (ie, European and national) it is important to note that the initiative of the Lando-Commission does not belong exclusively to either of these levels; the group rather operates in a sphere detached from either. On the one hand, although aiming to discover 'European' principles of private law, the initiative is not a purely European one. For the Lando-Commission is neither dependent on the European authorities nor has it ever received a mandate from the European Union. On the other hand, the participants of the Lando-initiative, although representing different nation states, have no mandate from their national governments; rather, a new member is chosen and invited to participate by the common consent of the whole group. As members of the Lando-Commission they are not political representatives of their national governments, but might be seen as 'scientific' representatives of their national legal systems. Each member's intention is to report on his or her respective national legal rules in order to facilitate the co-operative discovery of the common core of all European private law systems. To put it in other words: according to the Lando-Commission's analysis, common European principles shall be discovered by cross-border, non-governmental, scientific co-operation among jurists from all the Member States of the Union. This 'private' effort by legal experts is the crucial and distinctive feature of this project, thus rendering it remarkable. Whilst neither our national legislators nor our traditional legal systems (such as private international law) can any longer satisfy the needs of a united Europe, the thinking of the Lando-Commission allows the introduction of considerations of market integration or harmonisation of laws into the private law arena - without the underlying pressure of political considerations.[16]

This idea opens up a new way to mediate between the two levels of private law regulation, the national and the European, which at first sight seem to be irreconcilable. Thus, the Lando-Commission is more than a philanthropic enterprise by some legal academics meeting several times a year at their own expense in different universities across Europe. Keeping in mind the scenario established by the integration project (ie, the regulatory functions of European legislation, the institutional framework of the European economy, their fundamental impact upon private law, the affect on the realm of private ordering etc), one comes to appreciate the evolutionary and critical perspective on the Europeanisation process which the work of the Lando-Commission brings.

b. The Paradigm Shift in the Law Governing Contractual Relations

As indicated, the process of Europeanisation of private law is characterised by a re-shaping of private law rules at a meta-national level. Contract law in this respect offers an interesting example. For, crucially, contract law has been witnessing the phenomenon of denationalisation even before the process of integration had begun - and this development has been accelerating since the Europeanisation process. In fact, specifically in the area of contract law, transformations have been occurring for decades, leading to the phenomenon that codified law is highly divergent from the reality of contemporary contract practice. This development is due to the fact that, after the codification era, the functions of contract law have been subject to an irreversible paradigm shift. As the core area of private law closest to the market, the evolution of contract law must be seen in light of the expansion and internationalisation of trade and economics. There are indeed several factors on which the internationalisation (globalisation) process in the field of contract law is dependent: due to growing trade and economic relationships, the phenomenon of mass-contracts has appeared, the liberalisation and trans-nationalisation of contracts has increased, and there has been the rise of several new categories of contracts in order to regulate specific contractual relationships (such as consumer contracts), setting new standards of social justice in the private sector.[17] These factors mirror broader developments, for modern contract law is developing a dual commitment: freedom and coercion.[18] This paradigm shift has to be seen as an irreversible global development.[19] Contract law has been and will be further subject to a challenging process of globalisation.[20]

A very important feature of this process of trans-nationalisation is that, within their international organisations, business people have established common customs and practices beyond their national contract laws; arbitrators have applied general principles of law to international commercial disputes. This phenomenon has often been equated with 'law' (lex mercatoria).[21] The deficiencies of such a 'law' are obvious: created by 'private' governance structures, it is not embedded in the traditional legal system. Hence, it is operating beyond the institutional frameworks and controlling influence of the traditional constitutional state. A new law has been emerging in a 'paralegal' law-making [22] process, without an official (supra-) national authority being involved. Given the above-mentioned trans-nationalisation of contract law and the irreversible intensification of international economic activities, the issue of the deficiencies of the lex mercatoria will not go away. A serious analysis of the work of the Lando-Commission therefore needs to take into account these current developments within contract law. In particular, one has to ask if the PECL are able to correct deficiencies of 'private' governance structures as established by practice.

So far, we have seen that contemporary contract law has, for several decades, been affected by two important phenomena: codified national contract law has had to face the expanding trans-nationalisation of contractual relationships, especially of the business community; by the same token it has been increasingly subject to the European regulation processes. Therefore, contract law is doubly forced to react: on the one hand, it is still exposed to the trans-nationalisation paradigm, on the other hand it is also exposed to the Europeanisation paradigm; in a nutshell, to a colourful pervading collection of disintegrative processes. Both developments have in common that they are opposed to national contract law traditions. Against this background, the discovery or creation of a 'common' European contract law hardly seems conceivable. Nevertheless, what seems unimaginable in theory may be feasible in practice. The PECL have potential to consolidate the practical needs of contracting parties in socially and economically developed systems, providing a 'common' basis for contractual relations and the patchwork character of European legislative activities. This incoherence is not just a 'technical' one. Rather, it is a normative challenge to traditional contract law. By way of meta-national reshaping of contract law rules, the Lando-Commission implicitly (rather than explicitly) responds to this normative challenge. The work of the Lando-Commission, thus, does not restrict itself to remedying the disintegrative interventions of European legislation; by the same token, it remedies the inability of national systems to respond to the paradigm shift in contract law. These observations have shown that the old patterns of justice are undergoing drastic changes. Through projects such as the Lando-Commission, a new law-finding process is emerging, able to tame and/or remedy the meta-national legislative interventions, in areas where traditional legislation is failing. But what exactly is this new law-finding process about? Let us focus on the working methods of the Lando-Commission and the final objective the group wishes to achieve.

II. A Narrower Perspective than the Lando-Commission's Perspective

a. Mandatory Europeanisation: Law-Making from 'Above'

The specific intention of the Lando-Commission is apparently to focus on the creation of a Civil Code: the PECL shall function as the first step towards a European Code of Contracts.[23] Such a perspective, as Lando pointed out in his exposition [24] , echoes Thibaut's idea of abstract and homogeneous codification.[25] Accordingly, the idea of codifying divergent legal rules of sovereign countries is not new. What is new - since Thibaut and/or the era of codification - is the European context, together with the social and economic paradigm shifts which, as we have seen, are having a particular impact on concepts of contract law. Against this background, the project of the Lando-Commission can be perceived as 'codification' at a higher level or, more accurately, mandatory Europeanisation of law. Examples of mandatory Europeanisation are, in the first place, European legislation, but also projects focusing on the objective of a European Civil Code. Its main character is the resolute applicability of legal rules once brought into force 'from above' ie, by an official, legislative authority.

The question of 'European codification of private law or not?' is indeed at stake; the essence of all the arguments canvassed is the enforcement question. Among the supporters of mandatory Europeanisation, besides Lando, I might mention Tilmann,[26] Schulze,[27] Gandolfi,[28] Tunc,[29] and Sacco.[30] These authors doubt that the mere writings of the academics and their discussions can bring about the Europeanisation of contract law,[31] rather it must be 'installed' by a legislator. It is nearly ten years since the European Parliament, requesting a 'common system of private law',[32] endorsed a European Civil Code. However, if we look at the present state of legislation, the enthusiastic pronouncement by Parliament seems to have remained mere wishful thinking. This enforcement deficit - even despite the involvement of a European institution - strengthens the arguments of those opposing codification. Such critical writers, such as Legrand,[33] Zimmermann [34] Markesinis,[35] and Kötz [36] advance cultural arguments such as the paradigm of legal traditions and national mentalities. According to these authors, every nation is too greatly infused with its own 'mentalité' (Legrand) [37] to accept an 'outlandish' law. A European Civil Code, in consequence, seems an illusory enterprise.[38] I do not want to elaborate further on this discussion nor on the reasons for the failure of the European codification idea, hitherto; what is important for me in the context of my paper is the enforcement question which this discussion raises. For the crucial enforcement of a Europeanised private law is feasible, and better achieved without the 'drastic' means of mandatory Europeanisation.

Hence, I believe that it is misleading to perceive the work of the Lando-Commission as an example of mandatory Europeanisation of private law. Even though Lando is essentially right in reflecting, in his essay, on how the PECL can come 'into force'; furthermore, he is right in stressing the need for an institutional authority to fulfil this task, since the PECL are a product of a mere 'private' initiative. Nevertheless, the enforcement of the PECL must not necessarily be done by a national or European legislator. In my view, a European code may be a backward step.

b. Optional Europeanisation: the Alternative Approach from 'Below'

In fact, to perceive the PECL as an example of mandatory Europeanisation of law might be barely compatible with the overall logic of the integration process. Given the objective of a common market, the Community operates a flexible system, preferring dynamic harmonisation to a 'static' codex.[39] Thus, the codification idea not only challenges national legal cultures - mentalités, but it also runs contrary to the current step-by-step policy of the European Community. I would therefore argue that the PECL are not necessarily a part of mandatory Europeanisation of private law, but might better be perceived as a promising example of optional Europeanisation, which stops one step before codification.

But what exactly is optional Europeanisation? It is a procedure which leaves it up to the actors involved (the parties) to decide whether they take an active part in the Europeanisation process. In the process of optional Europeanisation, the rules are not imposed by a legislator, but from 'below'. Distinct from national or European legislation, jurisdiction and international conventions, optional 'law' is not automatically applicable. Rather, it is made applicable from 'below'; the contracting parties decide if this alternative law shall govern their individual contract. For instance, Article 1.101 (2) of the complete and revised version of the PECL [40] states: 'These Principles will apply when the parties have agreed to incorporate them into their contract or that their contract is to be governed by them'. Thus, the PECL leave it to the private parties to opt for them. Once adopted by private parties, the PECL come into force and as a consequence, the parties are subject to mandatory rules established by the PECL (Article 1.102 PECL)[41] or mandatory law 'of national, supranational and international law which, according to the relevant rules of private international law, are applicable irrespective of the law governing the contract' (Article 1.103 PECL). This solution suggested by the Lando-Commission renders the issue of a code dispensable. Thus, I believe that we can content ourselves with seeing the PECL as a set of rules without ambitions to become a mandatory codification. In this sense, my interpretation of the PECL is narrower than that of Lando.

If considered in this narrow way, the work of the Lando-Commission resembles a famous example: that of the American Law Institute (ALI).[42] The ALI is a private organisation of lawyers working on a systematic set of legal rules common to all states of the USA, published in several volumes: the Restatements on the Law. For, in the United States, as in the European Union, there are considerable differences between the contract laws of the individual states, and a common core has to be found. The American Law Institute began publishing Restatements as early as the beginning of the 1920s. This non-governmental,[43] scientific initiative furthered a debate which has been based on common concepts and one common legal method. Without doubt a comparison between the Lando-Commission and the American Law Institute can be drawn; in fact, the Lando-Commission explicitly refers, in the introduction to the PECL Part I [44] , to the Restatements as a model, and the PECL have been called 'European Restatements'.[45] Both initiatives provide solutions for lawyers and national courts in cases where their own law is silent or where their law is in need of reform, and such reform may be brought about by the courts.

What is important in the context of this essay is that the Restatements are not mandatory law. Thus, they are neither codified, nor enforced by any legislator. Nevertheless, the Restatements of the ALI are one of the most influential authorities in American law. In particular, the Restatement on Contracts [46] is one of the most successful products of the ALI, being highly appreciated by lawyers, courts and federal legislators and enjoying 'quasi-legislative' authority.

Hence, the example of the Restatements might demonstrate that, even where several divergent contract laws exist, the introduction of a code is unnecessary to 'enforce' common legal rules of private law, so long as the common rules are elaborated by legal experts and voluntarily accepted by official authorities such as legislators and courts. But the example of the Restatements also shows that institutional support is indispensable.[47]

III. Conclusion

The project of the Lando-Commission, taken as a point of reference, has revealed interesting insights into the needs of modern contract law and the demands of the Europeanisation process. They are very practical needs, but cannot be answered through the medium of our traditional legal disciplines (such as international private law), nor can they wait and hope for the elaboration of a comprehensive code. That is why I believe - on this point dissenting from Lando - that the PECL should not be perceived as an example of mandatory Europeanisation of private law. But we should value the PECL as an exemplary model of optional Europeanisation. They offer an alternative way to curb and remedy European legislative interventions and at the same time to remedy deficiencies of 'private' governance structures as established by practice (lex mercatoria). But how can the critical function ascribed to the PECL be put into practice?

There is one institutional actor, namely the European judiciary, which deserves particular attention. We have already seen that the Lando-Commission offers a set of rules which, at present, is a mere suggestion. Article 1.101 PECL leaves it to the private parties to opt for them. But there might be reasons why private parties hesitate to choose such an option. Not only does the set of rules offered by the Lando-Commission consist of mere principles, the scope of which is moreover limited to contract law - hence, it is not comparable with a coherent system of national private law. But also, the PECL in their present state have not been proven to work in practice; private parties will hesitate to adopt a set of rules to govern their contracts which has never before been adopted. Furthermore, the political independence of the Lando-Commission (as discussed in point II.a.) might make parties raise the question of control.

Therefore, it is suggested that the judiciary could use the PECL when they are called to decide cases of contract law. In particular, the European Court of Justice could refer to the PECL in deciding issues of contract law and in applying principles of contract law common to the laws of the national Member States. The judiciary is in a position to shape the rather general rules which the PECL contain, and clarify their meaning. But given the above-mentioned multi-level situation in Europe, a dialogue has to develop between and among European and national institutions to guarantee a homogenous standard of application. Thus, national courts deciding matters of private law, can also refer to the PECL. In addition, we will need to take account of the education of our judges, as Lando does when he maintains that 'this new European law should then be taught to the students, who when they become judges will apply it in their decisions'.[48] Lando's argument contains a very thoughtful and observant account of the mentalité aspect invoked by Legrand (see above, point II.a.). Finally, it is important to require that every time a national judge decides according to 'European rules', he or she shall be subject to powerful criticism from the European judiciary and from supranational academic and institutional discourse.

To summarise: the work of the Lando-Commission does not only respond to the specifics of the Europeanisation process and to the internationalisation and globalisation of contractual relations. It should also be understood as an effort to preserve the 'normative quality' of private law in an post-legislative era. Thus, the Lando-Commission becomes a crucial actor (of several) in a complex scheme of deliberation processes. Ideally, this picture should lead to a fruitful discourse culture between the actors within a system of multi-institutional governance; with the judiciary of Europe, and not a legislator, exercising the 'final say'.


FOOTNOTES

1. I use the popular, though not official, expression 'Lando-Commission', referring to the chairman and initiator of the project, Professor Lando from Copenhagen Business School. The Lando-Commission's official name is 'Commission on European Contract Law' (CECL). For more information, see the Lando-Commission's homepage at [http://www.ufsia.ac.be/~estorme/CECL.html].

2. To date, the Lando-Commission consists of more than 20 members.

3. The first results were published in book form in 1995: cf, O. LANDO & H. BEALE (eds), The Principles of European Contract Law, Part I. Performance, Non-performance and Remedies, Nijhoff, Dortrecht 1995. For a preview of the second and enlarged part, see [http://ra.irv.uit.no/trade_law/doc/EU.Contract.Principles.1997.preview.html].

4. This example refers to Lando's famous question to his students 'how many miles it is to the frontier'; cf, O. LANDO, 'European Contract Law,' in P. Sarcevic (ed), International Contracts and Conflicts of Law, Graham&Trotman, London, Dortrecht, Boston 1990.

5. Cf, O. LANDO, 'Principles of European Contract Law: An Alternative to or a Precursor of European Legislation?,' 40 (1992) American Journal of Comparative Law (AmJCompL) 574.

6. 1980 Rome Convention of the Law Applicable to Contractual Obligations, OJ 1998 C 27/98, 34. (consolidated version).

7. That is why some authors speak of 'second best solution' if they talk about the unification of rules on 'choice of law'; cf, for instance, H. HEISS, 'Europäisches Vertragsrecht: in statu nascendi?,' (1995) 36 Zeitschrift für Rechtsvergleichung (ZfRVgl) 54.

8. See, D. BUSCH, 'Indirect Representation and the Lando Principles,' [http://law.kub.nl/ejcl/23/abs23-1.html], also in ERPL (1999). further, from the creditor's standpoint, cf the analysis of L. OLSEN, 'The choice of the aggrieved party ­ An analysis of the remedies in the Principles of the European Contract law,' (1999) ERPL 21.

9. See, CHR. JOERGES & O. GERSTENBERG (eds), Private Governance, Democratic Constitutionals and Supranationalism. Proceedings of the COST A7 seminar. Florence, 22 to 24 May 1997, Office for Official Publications of the European Communities, Luxembourg, 1998.

10. See, O. LANDO (1992) AmJCompL (op cit note 5) 574.

11. See, CHR. U SCHMID, '"Bottom-up" Harmonisation of European Private Law: Ius Commune and Restatement,' EUI Working Paper in Law, San Domenico di Fiesole, No. 7/99, p79 [http://www.iue.it/PUB/].

12. Cf, CHR. JOERGES, 'The Impact of European Integration on Private Law: Reductionist Perceptions, True Conflicts and a New Constitutional Perspective,' (1997) European Law Journal (ELJ) 378.

13. Council Directive 93/13/EEC of 5.4.1993, OJ 1993 L 95/23 of 21.4.1993.

14. Cf, CHR. JOERGES, 'The Europeanisation of Private Law as a Rationalisation Process and as a Contest of Legal Disciplines. An Analysis of the Regulation of Unfair Terms in Consumer Contracts,' 3 (1995) ERPL 175.

15. See See http://www.ufsia.ac.be/~estorme.PECL.html and [http://ra.irv.uit.no/trade_law/doc/EU.Contract.Principles.1997.preview.html].

16. I am aware that this political independence is only one side of the coin and could also perceived as a lack of responsibility. Indeed, one could criticise the conception of the Lando-Commission as suffering a legitimacy deficit. In the conclusion, I will argue that it might be task of the European judiciary to remedy this lack of control (see III).

17. In my LLM-Thesis, I entered into a deeper analysis; cf, K. PREINERSTORFER, Die Lando-Commission (Commission on European Contract Law). Rechtswissenschaft als Vermittler zwischen Europäisierungsprozeß und Privatrechtsentwicklung, LLM-Thesis EUI, San Domenico di Fiesole, 1998.

18. Cf, CHR. JOERGES & G. BRÜGGEMEIER, 'Europäisierung des Vertrags- und Haftungsrechts,' in P.-Chr. Müller-Graff (ed), Gemeinsames Privatrecht in der Europäischen Gemeinschaft, Nomos, Baden-Baden, 2nd edition, 1999, 301.

19. Further, L. NIGLIA, Contract Through Integration. The Impact of the EEC Directive in Unfair Terms of National Regimes of Law of Contract. Thesis EUI, San Domenico di Fiesole 1998.

20. Several national legislators have been trying to respond to this paradigm shift in contract law, but only the Netherlands, the Nordic states, Louisiana and Quebec have managed to reform their codifications, whilst for instance Germany's 'Schuldrechtsreform' has remained but a mere draft.

21. Cf, F. DE LY, International Business Law and Lex Mercatoria, North Holland, Amsterdam, London, New York, Tokyo 1992.

22. DE LY (1992) (op cit note 21) 244.

23. Cf, O. LANDO & H. BEALE (1995) (op cit note 3) preface xvii.

24. Cf, O. LANDO, 'Optional or Mandatory Europeanisation of Contract Law,' 7 (1/2000) ERPL.

25. 'Über die Nothwendigkeit eines allgemeinen bürgerlichen Rechts in Deutschland,' 1814, reprinted in H. HATTENHAUER, Thibaut und Savigny, Ihre programmatischen Schriften, Vahlen, Munich, 1973, 61.

26. Cf, W. TILMANN, 'Eine Privatrechtskodifikation für die Europäische Gemeinschaft?,' in P.-Chr. Müller-Graff (ed), Gemeinsames Privatrecht in der Europäischen Gemeinschaft, Nomos, Baden-Baden, 2nd edition, 1999, 579.

27. Cf, R. SCHULZE, 'Auf dem Weg zu einem europäischen Zivilgesetzbuch?,' (1997) 41 Neue Juristische Wochenschrift (NJW) 2742.

28. Cf, G. GANDOLFI, 'Pour un code européen des contrats,' 91 (1992) Revue Trimestrielle du Droit Civil (RevTrimDrCiv) 706.

29. Cf, A. TUNC, 'L'unification du droit des contrats en Europe: Avec ou sans loi,' 39 (1993) Rivista di diritto civile 701.

30. Cf, R. SACCO, 'The System of European Private Law. Premises for a European Code,' (1992) Italian Studies in Law 71.

31. Cf, O. LANDO, 'Why codify the European Law of contract?,' 5 (1998) ERPL 533.

32. Resolution of the European Parliament of 26.5.1989 (Doc A2-157/89, OJ 1989 C 158/89, 400), and Resolution of 6.5.1994 (Doc A3-329/94, OJ 1994 C 205/94, 518).

33. Cf, P. LEGRAND, 'Against a European Civil Code,' 60 (1996) Modern Law Review (MLR) 44.

34. Cf, R. ZIMMERMANN, 'Savigny's Legacy. Legal History, Comparative Law and the Emergence of a European Legal Science,' 122 (1996) Law Quarterly Review 576.

35. Cf, B. MARKENSIS, 'Why a code is not the best way to advance the course of European legal unity,' 5 (1997) ERPL 519.

36. Cf, H. KÖTZ, 'Gemeineuropäisches Privatrecht,' in Festschrift für Konrad Zweigert, Mohr, Thübingen 1981, 481.

37. Cf, P. LEGRAND (1996) MLR (op cit note 33) at 44.

38. P. LEGRAND (1996) MLR (op cit note 33).

39. See, K. GLEICHMANN, 'Methoden der Rechtsangleichung und Rechtsvereinheitlichung innerhalb der EWG,' in H. Coing ed al (eds), Methoden der Rechtsvereinheitlichung, Alfred Metzner, Frankfurt a/M, 1973, 35.

40. See http://www.ufsia.ac.be/~estorme.PECL.html

41. Article 1.102 (1) PECL: 'Under these Principles, parties are free to enter into a contract and to determine its contents, subject to the requirements of good faith and fair dealing, and the mandatory rules established by these Principles'.

42. See, further, G. C HAZARD, 'American Law Institute ,'http://soi.cnr.it/~crdcs/crdcs/hazard.htm.

43. There has never been a governmental order in respect of the American Law Institute. It was founded in 1923 with the support of the American Bar Association. As an initiative from legal science, it has been independent of official, governmental will. Nevertheless, the ALI has political importance and might be attributed 'quasi-legislatory' authority. I elaborated on this point in my LLM Thesis, K. PREINERSTORFER (1998) (op cit note 17) at 43 ff.

44. Cf, O. LANDO & H. BEALE (1995) (op cit note 3) at xx.

45. Recently, CHR. U SCHMID (1999) (op cit note 11); see, also, H. HEISS, 'Europäisches Vertragsrecht,' 36 (1995) ZfRVgl 54 (at 56); TH. SCHINDLER, 'Die Restatements und ihre Bedeutung für das amerikanische Privatrecht,' 6 (1998) ZEuP 276; A. ROSETT, 'Unification, Harmonisation, Restatement, Codification, and Reform in International Commercial Law,' 40 (1992) AmJCompL 683.

46. Cf, AMERICAN LAW INSTITUTE, Restatements on Contracts 2nd, St. Pauls, Minnesota, 1981.

47. Additionally, Professor Lando has pointed to this problem in focusing on the institutional realisation of his project; see, O. LANDO (1998) ERPL (op cit note 31) at 534.

48. Cf, O. LANDO (1995) ERPL (op cit note 31) at 531.


Pace Law School Institute of International Commercial Law - Last updated July 8, 2003
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