Vol. 4.1, June 2000


Netherlands Comparative Law Association - European private law

In this editorial, I will start with an announcement and then develop a theme which I hope will lead to a series of articles and debate about the nature, sources and content of what is now called 'European private law'.

EJCL as the host web site for the Netherlands Comparative Law Association
First of all, I would like to announce that this is the first issue containing the official web site of the Netherlands Comparative Law Association. Papers, articles, reports (and in the future perhaps even books) which the association publishes in English, French or German will become electronically available through this site. The Netherlands Comparative Law Association already republished its national reports for the XVth International Congress of Comparative Law (Bristol, 1998) electronically at the web site of Utrecht University. The URL of the reports is: http://www.library.uu.nl/publarchief/jb/congres/01809180/15/ content.htm. The above implies that, unlike the articles in the EJCL itself, the electronic publications of the Netherlands Comparative Law Association will, in fact, most of the time be an electronic republication of a text already available in print. We felt, however, that a larger audience might be interested and that publication on our web site would give the various papers and reports the wider availability that they deserve. The association intends to use this web site also for making announcements to its members and other interested Dutch and foreign comparative lawyers.

The electronic publications of the Netherlands Comparative Law Association are not the responsibility of the editorial board of the EJCL, but remain the responsibility of the Association itself. We decided, however, that, for practical reasons, one of the editors should be the coordinator. The editorial board decided that I should be the coordinating editor, being both editor-in-chief of the EJCL and a board member of the Netherlands Comparative Law Association.

The Netherlands Comparative Law Association's part of the EJCL web site is introduced by prof. Ewoud Hondius (Utrecht University), the chairman of the Association. Next, we publish a report (in Dutch: preadvies) by prof. Esin Örücü. It was presented at the 1999 annual general meeting of the association and led to a lively and interesting debate.

We warmly invite other national comparative law associations to use our web site as a host for (re)publishing, e.g., working papers or comparative studies. If you want to react to any of the publications of the Netherlands Comparative Law Association or if you want to have more information about the EJCL as a host web site, please contact me by e-mail (S.vanErp@PR.unimaas.nl).

European private law
The two areas in which we publish new articles are the comparative study of private law and the methodology of comparative law. The study of European private law brings both areas together. Comparative lawyers who are interested in methodology are attracted by the development towards a more general European private law, as it is here that comparative law goes further than just comparing: it is aimed at selecting and choosing common principles or perhaps even common rules. See, e.g., various of the articles written by my Maastricht colleague, prof. Jan Smits, (to be found at: http://www-edocs.unimaas.nl/index/FDR.PRIVAATRECHT. Smits.titels.htm) and my inaugural lecture, which was published in EJCL (http://www.ejcl.org/31/abs31-1.html). At the same time, more practically oriented lawyers who are working in this area of law cannot escape from the methodological questions which are raised by the fact that it is not just a comparison that they perform, but - as I have mentioned earlier - it is also a choice they make. Before I continue, I should, first of all, answer two preliminary questions: What is 'European' private law and what is 'private law' in this respect? Generally speaking, those who study this area of the law consider 'European' to mean the law of (1) the countries that belong to the European Union or the European Economic Area, (2) those countries that will become members of the European Union in the near future (e.g. countries in Central and Eastern Europe, Turkey) and (3) countries such as Switzerland with which, irrespective of whether they will be European Union members or not themselves, the European Union has close political, socioeconomic and legal ties. Often developments in Europe are compared with what is happening in the United States, as in both cases a process of political and economic integration triggers legal integration in various areas and in various forms. As to European 'private law', it is my impression that, apart from contract, tort and property law, this increasingly implies family law, environmental law and ICT law. I refer to an article we published in our very first issue and written by our editor prof. Katharina Boele-Woelki on principles of family law ('The Road towards a European Family Law', to be found at http://www.ejcl.org/11/abs11-1.html). Within the framework of the Trento Common Core project (aimed at finding a common core of European private law), a study is made of property and environment and of property and information. The URL of the Trento project is http://www.jus.unitn.it/dsg/common-core/meeting/6/home.html; for an overview of European ICT law, see the official EU web site: http://europa.eu.int/comm/internal_market/en/media/index.htm

Those who study European private law are therefore confronted with having to understand and analyse legal systems from very differing traditions (English and Irish common law, French, German and Scandinavian civil law and the mixed legal system of Scotland). They also have to be interested in completely new problem areas (e-commerce, environmental law, ICT law). The author Pierre Legrand, e.g., puts very fundamental questions to European private lawyers; whether a foreign comparative lawyer can really understand a legal system which is not his/her own or if one is only chasing a phantom of 'real' knowledge. Personally, I do not share his pessimistic view that the latter is more often the case than the former. I think that knowledge of a legal system can be gained by a foreign lawyer, but that this lawyer will have to be critical, as prof. Örücü explains in the report which we now publish electronically. The debate on this and other questions relating to the development of European private law is open and I think that the EJCL offers a very good place for this debate.

It is one of the enormous advantages of an electronic journal that, technically, we can publish at any moment we wish. Nevertheless, publication might still take a considerable time because of the reviewing process. This will, however, be different in the case of short articles aimed at a rapid debate. The EJCL therefore constitutes a forum that could be used for an immediate exchange of views. So far, this has not happened, but the Editorial Board (and the assistant editor) are ready for it.

Sjef van Erp,

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