The Foundations of European Private Law
Title: The Foundations of European Private Law
Publisher: Hart Publishing
Citation: Oxford, Hart Publishing, 2011
There remains an urgent need for a deeper discussion of the theoretical, political and federal dimensions of the European codification project. While much valuable work has already been undertaken, the chapters in this volume take as their starting point the proposition that further reflection and critical thought will enhance the quality and efficacy of the on-going work of the various codification bodies. The volume contains chapters by representatives of the Common Frame of Reference, the Study Group and the Acquis Group as well as by those who have not been involved in particular projects but who have previously commented more distantly on their work - for instance those belonging to the Trento Group, and the Social Justice Group. The chapters between them represent the most comprehensive attempt so far to survey the state of the codification project, its theoretical, political and federal foundations and the future prospects for enforcement and compliance.
Table of Contents:
General Introduction and Acknowledgements v List of Contributors xi Table of Cases xv Table of Legislation and Preparatory Instruments xxv PART ONE: THEORETICAL FOUNDATIONS 1. Editorial Introduction 3 Roger Brownsword 2. ‘Restatements’ in Europe and the US: Some Comparative Lessons 11 Hans Schulte-Nölke 3. Dogmatising Non-legislative Codifications: Non-legislative Reference Texts in European Legal Discourse 31 Nils Jansen 4. If You Don’t Like Our Principles We Have Others: On Core Values and Underlying Principles in European Private Law: A Critical Discussion of the New ‘Principles’ Section in the Draft Common Frame of Reference 59 Martijn Hesselink 5. The Need for Codified Guiding Principles and Model Rules in European Contract Law 73 Bénédicte Fauvarque-Cosson 6. Old and New Insights for the Protection of Consumers in European Private Law in the Wake of the Global Economic Crisis 89 Brigitta Lurger 7. The Economics of Private Law Harmonised Law-making: Mechanisms, Modes and Standards 115 Fernando Gomez and Juan-José Ganuza 8. Of Islands and the Ocean: The Two Rationalities of European Private Law 139 Ralf Michaels 9. The Theoretical Foundations of European Private Law: A Time to Stand and Stare 159 Roger Brownsword PART TWO: POLITICAL FOUNDATIONS 10. The Political Foundations of European Private Law: Editorial Introduction 177 Leone Niglia 11. A Transnational Genealogy of Proportionality in Private Law 185 Duncan Kennedy 12. Balancing in Private Law and the Imperatives of the Public Interest: National Experiences and (Missed?) European Opportunities 221 Norbert Reich 13. New Paths of Private Law 249 Guido Alpa 14. Political Foundations of European Private Law: Rethinking the East–West Division Lines 265 Marek Safjan and Aneta Wiewiórowska-Domagalska 15. The Impact of the Harmonisation of Private Law on the Reform of Civil Law in the New Member States 285 Paul Varul 16. European Private Law: Political Foundations and Current Challenges 293 Reiner Schulze 17. Of Jurisdictional Balancing in European Private Law 309 Leone Niglia PART THREE: MULTI-LEVEL STRUCTURE OF PRIVATE LAW 18. The Multi-level Structure of Private Law: Editorial Introduction 319 Stephen Weatherill 19. Plurality of Sources in European Private Law, or: How to Live With Legal Diversity? 323 Jan M Smits 20. Private Law in a Federal Perspective. 337 Walter van Gerven 21. European Private Law: Unification, Harmonisation or Coordination? 353 Kåre Lilleholt 22. Top-Down or Bottom-Up? A Look at the Unification of Private Law in Federal Systems 363 Mathias Reimann and Daniel Halberstam 23. The Foundations of Private Law in a Multi-level Structure: Balancing, Distribution of Law-making Power and other Constitutional Issues 379 Matthias E Storme 24. A New Role for Private International and Procedural Law in European Integration? A Critical Comment 393 Lubos Tichý PART FOUR: ENFORCEMENT AND COMPLIANCE 25. Enforcement and Compliance: Editorial Introduction 415 Hans-W Micklitz 26. A Critical Note on Two EU Principles: A Proceduralist View on the Draft Common Frame of Reference (DCFR) 421 Ianika Tzankova and Martin Gramatikov 27. Public and Private Enforcement: The Practical Implications for Policy Architecture 437 Christopher Hodges 28. The Hybrid Quality of European Private Law 453 Hugh Collins 29. ‘DCFR, Please Meet National Procedure’: Enforcing the Frame of Reference using National Procedural Law 465 Johan Lindholm 30. Individual Private Enforcement of Consumer Rights in Civil Courts in Europe 487 Marco Loos 31. Enforcement and Compliance: An EU Law Perspective 513 Jules Stuyck 32. From ‘Toolbox’ to Academic Standard:– The Current and Future Status of the Draft Common Frame of Reference 531 Ewoud Hondius 33. A Need for a New Structure for European Private Law 555 Frydryk Zoll 34. Administrative Enforcement of European Private Law 563 Hans-W Micklitz Index 593
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