Vol. 8.2, June 2004


Why Are General Comparative Law Conferences Still Useful?

It seems that general associations of comparative law no longer attract the same number of members as before. This situation is also reflected in the number of people who regularly attend general meetings of these associations. One of the main reasons which may be given to explain this development is that, at least within Europe, comparative law is no longer seen as an area of the law that is restricted to a limited circle of specialists who are interested in foreign law and who can read and understand foreign legal texts. The continuing process of European integration has led to an awareness that, as a result of either European rule making or of intensifying trade relations between Member States, knowledge of national law no longer suffices for day-to-day legal practice. European law is not 'foreign' law, as it binds the Member States and their citizens as a result of their voluntary accession to the autonomous European legal order - an order that will even be stronger after the acceptance of the European constitution; see the web site 'The Future of the European Union - Debate': http://www.europa.eu.int/futurum/index_en.htm, the web site of the European Convention http://european-convention.eu.int/bienvenue.asp?lang=EN and, for more background information, http://www.unizar.es/euroconstitucion/Home.htm. Also, the law of other Member States is no longer seen as really 'foreign' in the sense of 'alien' , as it stems from countries with which close economic and political ties exist, and whose legal orders are based on the rule of law, whose legislatures are democratically elected and whose judiciaries are independent and trustworthy.

As a consequence, there are hardly any areas left that are not affected by law originating outside a national legal order. The result is that more specialist national organisations of academic and/or practising lawyers now frequently discuss problems from a comparative perspective. Comparative law has lost its idiosyncratic nature. In a sense, one could also say that comparative law no longer is 'comparative' law. In the European Union, European law is part of the law applicable in Member States. The comparative element that remains with respect to European law is the way national administrations, legislatures and judiciaries apply and interpret it. Differences and similarities can be observed, which can be analysed, compared and evaluated. However, the European institutions (especially the European Court of Justice) play a vital role here, to avoid diversity where uniformity should exist. Furthermore, comparative analysis is more and more a method to prepare not only unification or harmonisation of national laws ('top-down'), but also to solve national problems in a way based upon the experience of others ('bottom-up'). This can be done in a legislative format, but also in the form of judicial reasoning that takes into account solutions and arguments from other legal systems. Especially in the latter situation, knowledge of the underlying comparative analysis is necessary to understand, from a strictly positive sense, law that is still 'national' in the way it comes into existence, but that is certainly not strictly national as it is based on comparative analysis, from a substantive viewpoint. Such a 'bottom-up' approach, combined at the same time with a rejection of the 'top-down' model, can be seen in legal commercial practice; cf. the announcement by the International Chamber of Commerce with regard to the initiatives concerning a uniform European contract law: http://www.iccwbo.org/home/news_archives/2004/EU_commission.asp. The result of these various developments seems to be that interest in comparative law as a general subject is vanishing.

This is to be regretted. Comparative law is a way of legal thinking that demands openness of mind and awareness of possible pitfalls. Language is only one of these well-known pitfalls: see my editorial 'Linguistic Diversity and a European Legal Discourse', http://www.ejcl.org/73/editor73.html. It is for this reason that comparative lawyers developed a strict methodology to be able to decide what is comparative law and what is an attempt to make an excursion into foreign territory. There is a certain risk that these more fundamental aspects of the comparative analysis of law may be forgotten in a discourse between specialists, focusing on, to give but a random example, the energy market. Methodological problems are encountered by all comparative lawyers and the general study of comparative law still proves to be a source of invaluable experience to avoid mistakes and even blunders. A prime example of the risks involved is the use of a foreign language. Any comparative lawyer will readily acknowledge this, but still remarkable things happen in legal practice. Let me give an example, based upon what I recently heard. During a meeting of legal specialists, English was used as the language of communication, although none of the participants was a native speaker of English. Everyone used the word 'enshapement' as a term to denote the further elaboration of a draft programme for a seminar. As all present understood what was meant, no problems arose until an English lawyer joined the group who immediately asked what was meant by 'enshapement'. Only then did it become clear that it was an invented, in other words, non-existent, English word.

It is, therefore, still extremely useful to discuss the comparative analysis of law also within the framework of a general meeting of comparative lawyers. At least, as long as the meeting is an attractive combination of discussions on general questions as well as more specialised problem areas. Purely talking about the methodology of comparative law has, of course, its own merits and usefulness, but in my view the comparative legal analysis is foremost a way of practical legal thinking. Method and application should, therefore, always be discussed together. The world congresses on comparative law organised under the auspices of the International Academy of Comparative Law are excellent examples of what I mean.

XVIIth World Congress of Comparative Law

In my editorial to EJCL Vol. 7.2 of June 2003 (http://www.ejcl.org/72/editor72.html), a first public announcement was made regarding the XVIIth World Congress of Comparative Law, which will be held from Sunday 16 up to and including Saturday 22 July 2006 in Utrecht, the Netherlands. The congress will be organised under the auspices of the International Academy of Comparative Law in Paris (http://www.iuscomparatum.org/) and the Netherlands Comparative Law Association.

During a meeting of the Academy in May of this year, the topics to be discussed at this congress were chosen (see Topics.PDF). Also, the general reporters were named. According to the established procedure, the national committees of comparative law will be asked to approach national reporters to write about the various topics from the perspective of their national legal systems. This is done in close cooperation with the general reporters, to ascertain that all national reports follow a uniform structure and focus on the same problems. This facilitates a structured and fruitful discussions during the conference.

The steering committee in Utrecht started its work immediately after the Academy had decided that the next conference would be held in that city. For the time being, more information on the congress can be found in the editorial mentioned above and in the presentation held at the meeting of the Academy in May last (Presentation.ppt). The Congress Office of Utrecht University is gladly willing to answer any questions. A special congress e-mail address will become operational: AIDC-Utrecht-2006@fbu.uu.nl; in the meantime, information can be obtained through congres@fbu.uu.nl.

During the last congress, several reports were available on CD-ROM. Making more information available in digital format is one of the aims of the steering committee. A congress web site is being developed, which will be accessible soon (in any case, by the beginning of September): http://www.law.uu.nl/AIDC-Utrecht-2006. Through this web site and the EJCL web site, national and general reports will be made available to participants.

This issue

In this issue of EJCL, two articles are published: a French-language article written by Sylvette Guillemard, 'Liberté contractuelle et rattachement juridictionnel : le droit québécois face aux droits français et européen' and an English-language article by Martin Ebers, 'Information and Advising Requirements in the Financial Services Sector: Principles and Peculiarities in EC Law'. Furthermore, we publish a short review of two books and two announcements.

Sjef van Erp,

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