Vol. 12.3, December 2008


On the Trend Towards Recodification and Reorientation in Private and Business Law

Codification is en vogue again: the Netherlands introduced its new patrimonial law on 1 January 1992; Germany set in force its modernized law of obligations on 1 January 2002; Brazil replaced its Código civil of 1916 by the Novo Código Civil Brasileiro of 2002; and Russia, China and many East European countries which formerly had legislations of “really existing socialism”, have introduced new Civil Codes or are working on them. And France is following all of these developments in steps: the traditional three-book structure of the Code civil has been abandoned through the addition of a new Book 4 on security rights; the law of prescription has been recodified; and there is a great deal of discussion about the academic avant-projet de réforme du droit des obligations (also known as the Catala project, Ministère de la Justice, July 2008, available at http://www.dimitri-houtcieff.fr/files/projet_droit_des_contrats_blog8_2_.pdf) and about a draft by the Académie des Sciences Morales (cf. the blog http://www.dimitri-houtcieff.fr, entry of 14 November 2008). In general private law, things in Europe and sometimes elsewhere are on the move…

In the European Union, discussions on a Common Frame of Reference for European Contract Law are continuing. Performing an EU study contract, a group of academics presented and published an Academic Draft Common Frame of Reference (DCFR), which relies heavily on the Lando Principles of European Contract Law, but covers wide new fields and tries to integrate the acquis of the existing EU private law regulations and directives. However, at the moment a European Code of Obligations does not seem to be taking shape: Le rêve est fini (The dream is over) exclaimed one of the speakers – Denis Mazeaud – at a recent conference organized in Paris by the French EU-Presidency of the second semester of 2008 on the subject “Which European Contract Law for the European Union?” (see http://www.justice.gouv.fr/index.php?rubrique=10045&ssrubrique=10281&article=16137 – with a video of the opening speech of Justice Minister Rachida Dati). According to the positions and reports adopted by the Council of Justice and Home Affairs Ministers of the EU on 18 April (see Oliver Remien, Zweck, Inhalt, Anwendungsbereich und Rechtswirkung des Gemeinsamen Referenzrahmens: Eine erste Analyse des Standpunktes des Justizministerrates vom 18.4.2008: Gemeinschaftsprivatrecht 2008, 124-128) and 27 and 28 November 2008 (see Press Release 16325/08, http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/jha/104584.pdf, p. 30, and document 15306/08, available at http://www.consilium.europa.eu), a Common Frame of Reference for European Contract Law will be drafted, but in a much more restricted manner than the academic DCFR. As to its structure, it will consist of definitions, common fundamental principles and “model rules”; as to its scope, it will preferably deal with the general law of contracts, also include consumer contracts as in the proposed directive on consumer rights of 8 October 2008, and possibly special contracts falling within the consumer acquis might be included at a later stage. In view of the diversity of legal traditions, alternative solutions on certain subjects could be presented. The Council, the European Parliament and the Commission will be involved in setting up the Common Frame of Reference, which according to the April position will be a non-binding instrument to be used by the lawmakers at Community level. It is true that the European Parliament wants more and has passed a new resolution on the common frame of reference for European contract law on 3 September 2008 (http://www.europarl.europa.eu/sides/getDoc?type=TA&reference=P6-TA-2008-03978&language=EN&ring=B6-2008-0374 ), but in the EU, the Council and the Member States (and hopefully their parliaments) still hold a key position. Thus, national codifications will continue to blossom in Europe. National legislators are trying to develop good private law legislation for their respective countries and to a certain extent they also try to increase their appeal on the scene of European harmonization of private law. It is less a competition of legal systems than it is of legislators; one might say it resembles a beauty contest.

But is there only recodification – a remarkable phenomenon in itself – or also a reorientation? In 2009, it will be twenty years since the Berlin wall was torn down, and, of course, east of Germany too, legislators were adapting to some kind of market economy system and legislation. But even in the West, many things have since changed; German and European company and capital market law underwent considerable modifications. After two decades, are new and softer reorientations needed or to be expected? “Why the Wind Changed: Intellectual Leadership in Western Law”, was the title of a paper by Ugo Mattei published in 1994 (American Journal of Comparative Law 42 (1994) 195-218), and Europeanization of laws has sometimes been regarded as simultaneously being Americanization. There is some truth in this analysis. But on the recodification front, the US currently does not appear to have very much on offer, arguably with the exception of Article 9 of the Uniform Commercial Code on security rights, which has impressed many people and which some American salesmen are trying to rest of the world to take an interest in. So the phenomenon of recodification and perhaps also the striving for more European harmonization and a Common Frame of Reference seem to strengthen the European position. And many will argue that the American glamour of the second half of the 20th century has lost at least some of its allure in the early 21st century. The financial market crisis further deglorifies American economic and (de)regulatory approaches, though the US certainly holds an influential and strong position in areas such as competition law and legal education. So is the wind changing again? Will the legal rules of a social market economy (and “Rhenanian capitalism”) exert more force of attraction and influence? After the Doing Business Reports of the World Bank (for a critical attitude towards such ”statistical comparative law”, see Mathias M. Siems, Statistische Rechtsvergleichung, Rabels Zeitschrift fuer auslaendisches und internationales Privatrecht 72 (2008) 354-390 with an English summary) and an English initiative presenting England as the “jurisdiction of choice” (http://www.lawsociety.org.uk/documents/downloads/jurisdiction_of-choice-brochure.pdf), in France a Fondation de droit continental (http://fondation-droitcontinental.org) has been created and in Germany an initiative “Law Made in Germany” has just been started (http://www.lawmadeingermany.de, on the older IRZ-Stiftung, see http://www.irz.de). Or will there be new rising legal stars? If, as many think, a pluricentral world is about to emerge, then perhaps also the legal world will not be monocentral. This should make Comparative Law even more interesting, important and useful. The Electronic Journal of Comparative Law will continue to offer a forum for worldwide legal discussion and to build bridges.

This Issue

The current issue contains five contributions. The first of these is a discussion by Enabulele and Imoedemhe of the challenges regarding the unified application of international law in the municipal realm. The author of the second paper, Shael Herman, completes his EJCL trilogy on the Louisiana Code of Practice (1825) by analysing its uses of analogia iuris. The third contribution is that of Antonios Emmanuel Platsas, who comments on the functional and the dysfunctional in the comparative method of law. The fourth author, Branka Rešetar, examines the link between sociology and family law with regard to matrimonial property in Europe. Finally, Julia Sloth-Nielsen takes a look at the interaction and development of children’s rights, children’s law and economics in Southern and Eastern African law reform processes.

Oliver Remien

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