COMPARATIVE PRIVATE LAW
Introduction and formation
Professor Mads Andenas MA PhD DPhil
University of Oslo; Senior Research Fellow, Institute of
Advanced Legal Studies, University of London; Visiting
Research Fellow, Institute of European and Comparative
Law, University of Oxford.
1
Overview of the introductory
lectures
• Introduction to the course
• DCFR and national law, in particular
the Common Law
• Comparative law in the Courts:
–The national supreme courts
–International and European courts
2
JUS5240 Comparative Private Law
Lecture Outline Autumn 2011
1-2. Two lectures on the DCFR by Professor Kåre
Lilleholt.
3. Overview of the topics of the course. Placing the
DCFR in an international perspective. The discipline
of comparative law. Legal transplants and
convergence of legal families.
4. Formation of contracts.
5. Interpretation, Reasonableness, Good Faith.
6. Liability and other Remedies.
3
Resources
• Subject page:
http://www.uio.no/studier/emner/jus/jus/JUS5240/ind
ex.xml
• Reading list:
http://www.uio.no/studier/emner/jus/jus/JUS5240/h1
1/pensumliste.xml
• Materials from previous years, see
http://www.uio.no/studier/emner/jus/jus/JUS5240/
h11/pensumliste.xml
4
Introduction lectures
• Overview of the topics of the course. Placing
the DCFR in an international perspective. The
discipline of comparative law. Legal
transplants and convergence of legal families.
5
Reading for today and next week:
Consult the literature list, for example, Bogdan,
Michael: Comparative Law, Kluwer/TANO 1994 and
Moss, G.C.: Lectures on Comparative Law, on the
topics of the discipline of comparative law, legal
transplants and convergence of legal families. As
preparation for this lecture, it is sufficient to use this
or other literature to familiarize oneself with these
topics. Some may find the article by
Andenas/Fairgrieve 'There is A World Elsewhere'
which is uploaded under course material helpful.
6
Today’s lecture
I Focus on the DCFR and the
Common Law
II Comparative law in the courts
7
Placing the DCFR in an
international perspective.
How do these international instruments interact:
• UNIDROIT Principles
• The Convention on the International Sale of
Goods (CISG) adopted by UNCITRAL.
• PECL
• DCFR
8
DCFR and Common Law
• DCFR
• Relationship to national legal
systems and traditions
• Special issues relating to the
Common Law.
9
DCFR and its general reception
• Some support from participants
• Critical approaches typified by
Zimmermann and Hugh Collins
10
The autonomies of law
• The autonomies of law as a challenge to a
European Civil Code or DCFR
• National legal systems
• Private law, public law
• Commercial law, private law
• European law in the national traditions of
private law
• A set of false dichotomies?
11
European law and the challenge of
common law
• Common law contracts in areas such as
finance, IP
• Common law practice with US and London
firms.
12
The efficiency of the common law
• World Bank: Doing Business
– Understanding regulation 2004
– Removing obstacles to growth 2005
• Réponse de l’Association Henri Capitant aux
Rapports "Doing business" de la Banque
Mondiale - Les droits de tradition civiliste en
question
13
How the common law sees itself
• Tennekoon and Wood
14
The role of legislation in the common
law of commerce
• Contract, case law and default rules in
legislation.
• Limited.
• No general codifications.
• Exceptions, insurance codifications.
15
Some features of the common law of
England: traditional argument
• Structure of contract law is different: limited
default rules, contract practice aims at
providing an autonomous and complete
regime.
• Interpretation of contracts: exclusionary rules
(pre-contractual negotiations and
postcontractual behaviour) and literalism.
Role of good faith.
• Creditor-friendly.
16
How is the common law developing
• Law on interpretation of contracts is changing:
exclusionary rules and literalism. Role of good faith.
• Creditor-friendliness is less obvious in insolvency but
still more freedom in constructing securities.
• Structure of contract law remains different in this
respect: limited default rules, contract practice aims
at providing an autonomous and complete regime.
But here many areas follow this direction.
17
Critical perspectives on these common
law features
• Structure of contract law: what is the cost of current
contract law practice with no default rules to rely on,
transaction cost in contracting, quality of contract
terms
• Interpretation of contracts: did these rules ever
provide the benefits envisaged?
• Creditor-friendliness: the economic cost benefit
analysis. Personal credit and security rights. Creditor
protection and access to credit without security.
18
Absence of principles
• P Birks English Private Law
19
How do courts use comparative
law?
20
The national paradigm and the closed
system
• Did it ever apply?
– In legislative reform
– In the courts
• Current developments: Italian and English courts, the
US.
– Fairchild v Glenhaven Funeral Services Ltd, [2002] UKHL 22.
– Sentenza n. 21748 del 16 ottobre 2007 (Sezione Prima
Civile, Presidente M. G. Luccioli, Relatore A. GiustiSentenza
n. 21748 del 16 ottobre 2007 (Sezione Prima Civile,
Presidente M. G. Luccioli, Relatore A. Giusti,
“Salute,accanimento terapeutico,stato
vegetativo,eutanasia”).
– Roper v Simmons 543 US 551 (2005).
21
The positions in the US debate.
• Harold Koh, Sir Basil Markesinis,
Jeremy Waldron, the ‘liberal’
justices
• Mary-Ann Glendon, The
Federalist Society, the
conservative justices
22
The positions in the English debate.
• Sir Basil Markesinis, Lord Bingham: making use of comparative
law as a tool
• John Bell: limitations of context but still of use in policy reform
and legal analysis
• Jane Stapleton, Lord Hoffmann
23
Can courts make use of comparative law?
–The use of foreign law
–The indirect entry points for
foreign law and comparative law
24
Fairchild v Glenhaven Funeral Services
Ltd, [2002] UKHL 22
Development of the law in this country cannot of course depend
on a head-count of decisions and codes adopted in other
countries around the world, often against a background of
different rules and traditions. The law must be developed
coherently, in accordance with principle, so as to serve, evenhandedly, the ends of justice. If, however, a decision is given in
this country which offends one’s basic sense of justice, and if
consideration of international sources suggests that a
different and more acceptable decision would be given in
most other jurisdictions, whatever their legal tradition, this
must prompt anxious review of the decision in question.
25
JD (FC) (Appellant) v East Berkshire Community Health NHS Trust
and others (Respondents) and two other actions (FC), [2005]
UKHL 23, per Lord Bingham:
The question does arise whether the law of tort should evolve,
analogically and incrementally, so as to fashion appropriate
remedies to contemporary problems or whether it should
remain essentially static, making only such changes as are
forced upon it, leaving difficult and, in human terms, very
important problems to be swept up by the Convention. I
prefer evolution.
26
Roper v Simmons 543 US 551 (2005), Kennedy J
(majority opinion):
It is proper that we acknowledge the overwhelming weight of
international opinion against the juvenile death penalty,
resting in large part on the understanding that the instability
and emotional imbalance of young people may often be a
factor in the crime. See Brief for Human Rights Committee of
the Bar of England and Wales et al. as Amici Curiae 10–11.
The opinion of the world community, while not controlling our
outcome, does provide respected and significant confirmation
for our own conclusions. It does not lessen our fidelity to the
Constitution or our pride in its origins to acknowledge that
the express affirmation of certain fundamental rights by other
nations and peoples simply underscores the centrality of
those same rights within our own heritage of freedom.
27
A starting point for international
courts
• The limited extent to which the ICJ cites other
courts
• The varying extent to which other courts cite
judgments from other jurisdictions
• An empirical equiry: counting citations
28
28
The increase in citations
• The ICJ beginning to cite other courts
• Other international courts have started to do
so, or do so to increasing degree
• National constitutional and other courts as
well
• Continues as an empirical equiry
29
29
What does the increase mean?
• Can this be a useful perspective in which to
compare
– the form and style of judgments, and,
– the sources of law?
• Does it say something about
– the relationship between different treaty regimes,
– between international and national law,
– the nature of international law, and,
– rule of law concepts and the role of courts?
30
30
Case studies
• The ICJ
• International criminal courts
• The European courts (not a cohesive category
here)
• The WTO panels and the AB
• Investment arbitration
31
31
The ICJ as a case study
• The form of ICJ judgments. No doctrine, no references
to cases but its own. Compare VCLT art 31. (Where
does this come from? Dead authors in the Lords and
the form of cassation)
• Bosnia and Herzegovina v Serbia and Montenegro
(2007), references to both the Trial Chamber of the
ICTY and the ICTR. Reliance on the ICTY for the intent
required for the crime of genocide and cites the ICTY
and the ICTR on the requirement of ‘substantiality’ in
establishing intent. See Rosalyn Higgins ‘A Babel of
Judicial Voices’ (2006) 55 ICLQ 791.
• Diallo (2010): the full break through
32
32
International criminal courts
as a case study
• Remarkable openness in the use of
international and national sources, including
US and German constitutional case law.
• In defining relevant tests under their statutes,
devising procedural rules etc.
• In particular ICTY’s exposed position could
militate against using national sources but this
does not obtain.
• ICC and national and regional (ECHR) sources.
33
33
The European courts as a case study I:
The ECJ I
The European courts are not a cohesive category
here
ECJ and national courts
ECtHR : Familiapress expressly followed ECtHR in
Lentia and Criminal Proceeding v X followed
Kokkinakis v Greece.
34
34
The European courts as a case study I:
The ECJ II
ICJ: Case T-115/94, Opel Austria v Council [1997] ECR II39; Case C-162/96 Racke v Hauptzollamt Mainz [1998]
ECR I-3655, citing Gabcíkovo-Nagymaros Project
(Hungary v Slovakia) on principle of pacta sunt
servanda which then was not given effect
Kadi as paradigm case: relies only on internal sources
Compare with ECtHR in Al-Adsani and the statement
about ‘the Convention … cannot be interpreted in a
vacuum’ and the rich use of other case law.
(Differences in facts and law may justify some of the
differences between these to ‘paradigm’ cases.)
35
35
The European courts as a case study II:
The ECHR I
Cites national case law also on the European Human
Rights Convention.
It cites decisions from international courts and tribunals
(including the ECJ), and of other international bodies
and committees.
The UN Human Rights Committee has a special position
in the UN human rights system, and the ECHR has in a
number of cases cited and taken due account of the
Human Rights Committee’s decisions.
Interesting examples of dialogues with national courts.
36
36
The European courts as a case study II:
The ECHR II
Bosphorus Hava Yollari Turizm Ve Ticaret
Anonim Sirketi v Ireland (2006) 42 EHRR 1
discusses the case law of the ECJ in detail. In
principle, the protection offered within the EC
legal system meets a requirement of
equivalency and gives rise to a ‘presumption
of conventionality.’ It referred to the
combination of the guarantees offered on the
domestic level and by the ECJ.
37
37
Investment arbitration as a case studie
•
•
•
•
•
Typically ICSID and bilateral investment treaty
References to other arbitral awards
Free and open use of authorites
Form of awards
Compare NAFTA awards
38
38
The WTO panels and the AB
as a case studie
• Intense discussion about WTO as closed and
autonomous system and the use of sources
outside
• State perspective: limit powers of DS and AB
• EU concepts unacknowledged in the
background
• The importation of US domestic discourses
about judicial review, legitimacy of
international tribunals (Goldstein)
39
39
The practice of national courts I
• The national paradigm and the closed system
• Current developments: Italian and English courts, the US.
– Fairchild v Glenhaven Funeral Services Ltd, [2002] UKHL 22.
– Sentenza n. 21748 del 16 ottobre 2007 (Sezione Prima Civile,
Presidente M. G. Luccioli, Relatore A. Giusti,
“Salute,accanimento terapeutico,stato vegetativo,eutanasia”).
– Roper v Simmons 543 US 551 (2005).
• The positions in the US debate.
– Harold Koh, Sir Basil Markesinis, Jeremy Waldron, the ‘liberal’
justices
– Mary-Ann Glendon, The Federalist Society, the conservative
justices
40
40
The practice of national courts II
• Can courts make use of comparative law?
– The use of foreign law
– The indirect entry points for foreign law and
comparative law
41
41
The practice of national courts III
Some current areas of particular use or where there is a
general recognition of comparative law as a persuasive
authority or source of law:
– Application of normative models from comparative law where
national law is undetermined.
– Giving weight to comparative law when reviewing factual
assumptions about the consequences of legal rules, or
assumptions about universal applicability of rules or principles.
Arguments based in this kind of analysis have been used to
overturn authority in domestic law in a number of cases.
– A particular role in applying European and international law,
including European Human Rights law.
– A further role in developing principles of domestic law.
42
42
The practice of national courts IV
The use of international law:
– Case law from international and other national
courts in resolving relationship between national
and international (including EU and ECHR) law
43
43
Fragmentation discourse and
constitutionalisation debate I
VCLT article 31(3)(c): ‘(c) any relevant rules of
international law applicable in the relations
between the parties’.
underlying objective of systemic integration.
Autonomous treaty regimes and limitations on
dispute settlement bodies.
‘International rule of law’
44
44
Fragmentation discourse and
constitutionalisation debate II
• Gilbert Guillaume ‘The Future of International
Judicial Institutions’ (1995) 44 ICLQ 848
• Rosalyn Higgins ‘A Babel of Judicial Voices’ (2006)
55 ICLQ 791
• International Law Commission (Martti
Koskenniemi) Fragmentation of International
Law: Difficulties Arising From the Diversification
and Expansion of International Law (2006)
• Positions in the US debate: Goldstein and
Slaughter
45
45
Constitutionalisation in courts
counteracting fragmentation?
• Courts’ use of precedent and other authorities to
secure coherence in their own jurisdiction
• Typical role of courts to deal with constitutional
principles, relationship to other jurisdictions etc
both at national and international level
• The use of authorities as a mechanism to
promote coherence in a wider international law
system
• Harold Koh’s process and compliance theory
46
46
Challenges to scholarship
• Hélène Ruiz Fabri: focus on form of judgment,
comparing use of sources of law across
jurisdictions, moving between national and
different international jurisdictions.
• Meeting the challenge of the US with legal
scholarship or systematic and analytical
(’doctrinal’) analysis which may assist courts.
47
47
The discipline of comparative law
• Comparative law as a discipline
• Comparative law as a method
Discuss the role of comparative law in
legislation, in the courts, in legal commercial
practice
48
Legal transplants and convergence
of legal families
•
•
•
•
What is a “legal transplant”
What is a “legal families”
Criticism of traditional comparative law
Lord Denning: “to move across the boundaries
that divide the law and discover the
underlying unities”
49
Traditional distinction common
law/civil law on contracts
Common law judge interprets contracts:
– Literally
– Does not imply terms
– Does not consider negotiations or subsequent
conduct
– Does not integrate with good faith or loyalty
– Caveat emptor
– Fairness = Predictability
50
Civil law judge interprets
contracts (traditional perspective)
– According to their purpose and the parties
intentions
– Implies terms
– Considers negotiations and subsequent
conduct
– Integrates with good faith and loyalty
– Reasonableness
– Fairness = balance in the specific case
51
The core international instruments
in our field:
What do they cover, what is their basis, and how
do these international instruments interact:
• UNIDROIT Principles
• The Convention on the International Sale of
Goods (CISG) adopted by UNCITRAL.
• PECL
• DCFR
52
Our three remaining main topics:
4. Formation of contracts.
5. Interpretation, Reasonableness, Good Faith.
6. Liability and other Remedies.
53
Reading
• Markesinis, Fedtke, Engaging with Foreign
Law, Oxford Hart Publishing 2009
• G Cordero-Moss, International Commercial
Law, UIO Oslo 2010
54
Past exam papers - JUR 1240 and
JUR 5240 - Comparative Private
Law
Autumn 2010
• Compare the approach to issues of (1)
interpretation and (2) formation of contracts
in the transnational restatements, principles
and international conventions on contract law.
You may wish to look into one or more
systems of national law to support your
argument.
55
Past exam papers - JUR 1240 and
JUR 5240 - Comparative Private
Law
Autumn 2009
Please explain the approach to interpretation of
contracts taken by the transnational
restatements of contract law.
Autumn 2008
Please explain the major differences and
similarities between two systems of law of your
choice belonging to different Legal Families.
56
Past exam papers - JUR 1240 and
JUR 5240 - Comparative Private
Law
Spring 2007
Please compare the role of good faith in the
performance of contracts in the common law,
the civil law and in the non-national law.
Spring 2006
Different legal systems have different
approaches to the liability for non performance
of contracts. Can you explain at least two of
these approaches?
57
Past exam papers - JUR 1240 and
JUR 5240 - Comparative Private
Law
Autumn 2006
The division into legal families does not always
reflect differences or similarities between
specific legal systems. Please illustrate at least
one legal institute within the law of contracts
that is treated substantially equally in two
different legal families, and one that is treated
differently. Is the division into legal families
useful, in your opinion?
58
Term paper : for discussion
Please explain the approach to interpretation of
contracts taken by the transnational
restatements of contract law, and discuss if the
DCFR represents anything new in this respect.
59
4. Formation of contracts
• In the international instruments, in the DCFR
• In national law: different models
60
Formation in common law
Two main elements:
1) Agreement
a) Offer
b) Acceptance
2) Consideration
Other elements: Intention to create legal
relations, Capacity, Formalities
61
The offer in common law
Definition – Statement by one person to another
person, evincing his/her willingness to enter into
contractual relations with that person on certain
terms.
Distinguish offer from an “Invitation to Treat” –
auctions, tenders, Carbolic Smoke Ball.
62
«Consideration» in common law
1) Must be a connection between the consideration
and the promise which it is said to support.
2) Must move from the promisee, but not necessarily
to the promisor (Coulls v Bagot’s Executor and Trustee).
3) Must be sufficient but need not be adequate
(Chappell & Co v Nestle & Co Ltd)– Illegal consideration
is not sufficient, and excessively inadequate
consideration may not be sufficient.
4) Past consideration is not good consideration
(Lampleigh v Brathwait).
63
French law and «cause»
Art 1108 of the Code Civil:
• Consent,
• Capacity,
• Object,
• Cause
64
Formation in the international
instruments:
• UNIDROIT Principles.
• The Convention on the International Sale of
Goods (CISG) adopted by UNCITRAL.
• PECL.
• DCFR.
65
Formation in the UNIDROIT
Principles :
PICC third edition 2010
CHAPTER 2 — FORMATION AND AUTHORITY OF
AGENTS
SECTION 1: FORMATION
66
CISG
The Convention on the International Sale of
Goods (CISG) adopted by UNCITRAL
Part II. Formation of the contract
67
Formation in PECL and DCFR :
• DCFR: contract as ‘bilateral or multilateral
juridical act’. ‘BGB’ translated into English’?
Role of legal scholarship.
• ‘Juridical act’ and ‘contract’, Art II.-1:1010(1)
DCFR. PECL: less precise?
68
Formation in PECL: Article 2:101
(1) A contract is concluded if:
(a) the parties intend to be legally bound, and
(b) they reach a sufficient agreement without
any further requirement.
(2) A contract need not be concluded or
evidenced in writing nor is it subject to any
other requirement as to form. The contract may
be proved by any means, including witnesses.
69
Formation in DCFR: Article II.-4:101
PECL Article 2:101 para(2) has been removed:
(2) A contract need not be concluded or
evidenced in writing nor is it subject to any
other requirement as to form. The contract may
be proved by any means, including witnesses.
70
UNIDROIT PICC and UNCITRAL CISG
No such general part relating to the formation of
contract law
71
Offer and acceptance in PICC and
CISG
UNIDROIT PICC and UNCITRAL CISG:
• An offer must be such that, through its
acceptance, a contractcan be brought into
existence. It must therefore be sufficiently
definite and be based on the intention, on the
part of the offeror, to be bound: Art 14 CISG;
Art 2.1.2 PICC; Art 2:201(1) PECL; Art II.–
4:201(1) DCFR.
72
Effectiveness and revocal
• An offer becomes effective as soon as it
reaches the offeree; Art 15(1) CISG; Art 2.1.3
PICC.
• Until that moment the offeror may revoke it at
any time. Art 15(2) CISG; Art 2.1.3 PICC.
73
Revocal
Even an offer that has already reached the offeree, and
has therefore become effective, may however be
revoked as long as the revocation reaches the offeree
before the latter has dispatched his acceptance. This is
not the case if: (i) the offer indicates that it is
irrevocable;(ii) the offer states a fixed time for its
acceptance; or (iii) the offeree can reasonably rely upon
the offer being irrevocable and has already acted in
reliance upon the offer. Art 16 CISG; Art 2.1.4 PICC.
74
Rejection and acceptance by
statement and conduct
An offer also lapses as a result of a
rejection reaching the offeror. Art 17 CISG; Art
2.1.5 PICC.
Acceptance by means of statement or conduct;
the moment when the acceptance becomes
effective and the contract is thus concluded;
time limits for acceptance and the
consequences of late acceptance. Arts 2:204–
2:208 PECL.
75
An offer also lapses as a result of a
rejection reaching the offeror. Art 17 CISG; Art 2.1.5
PICC; Art 2:203 PECL.
Far reaching agreement on acceptance: acceptance by
means of statement or conduct; the moment when the
acceptance becomes effective and the contract is thus
concluded; time limits for acceptance and the
consequences of late acceptance; modified acceptance.
Arts 2:204–2:208 PECL; Arts II.–4:204–4:208 DCFR.
76
Differences between PECL and PICC
77
DCFR compared
78
5. Interpretation, Reasonableness,
Good Faith
In the international instruments, in the DCFR
In national law: different models
79
Interpretation, Reasonableness,
Good Faith in the Common Law
80
Interpretation, Reasonableness,
Good Faith in German, French and
Italian law
81
Interpretation, Reasonableness, Good
Faith in the international instruments:
• UNIDROIT Principles.
• The Convention on the International Sale of
Goods (CISG) adopted by UNCITRAL.
• PECL.
• DCFR.
82
In the UNIDROIT Principles :
83
CISG
The Convention on the International Sale of
Goods (CISG) adopted by UNCITRAL
84
In PECL and DCFR :
85
6. Liability and other Remedies
• In the international instruments, in the DCFR
• In national law: different models
86
Liability and other Remedies in the
Common Law
87
Liability and other Remedies in
German, French and Italian law
88
Interpretation, Reasonableness, Good
Faith in the international instruments:
• UNIDROIT Principles.
• The Convention on the International Sale of
Goods (CISG) adopted by UNCITRAL.
• PECL.
• DCFR.
89
In the UNIDROIT Principles :
90
CISG
The Convention on the International Sale of
Goods (CISG) adopted by UNCITRAL
91
In PECL and DCFR :
92