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The Making of European Private Law: Regulation and Governance design

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  • Cafaggi, Fabrizio
  • Muir Watt, Horatia
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    Abstract

    The current debate on the desirability and modes of formation of European Private Law (“EPL”) is engaging a wide number of scholars and institutions. Current work concerns the search for a common core of EPL, the rationalisation of the acquis communautaire, the design of a European Civil Code. These ongoing projects raise at least two related questions concerning the challenges to Europeanisation of private law: First, what is the often implicit definition of private law standing behind the debate about the creation of EPL? Second, does the process of creation of EPL need some type of governance structure? In this paper, we thus intend to contribute to a better understanding of these two dimensions of the debate. First, we wish to highlight the internal transformation of private law and its increasing regulatory function to be considered in governance design. If we take into consideration the internal transformation of private law and its increasing regulatory function in addition to the role of private law in regulated sectors, we witness several phenomena that require consideration in the governance design, such as the change of private law sources, and the procedural nature of Europeanisation. Within this framework it is important to identify the interplay between EPL and private international law. The role of private international law (“PIL”) as a vehicle to ensure choice of rules for private parties might change quite considerably depending on the choices concerning private law rules, in particular whether there is harmonisation and which kind of private law rules are adopted. The role of PIL may also depend on the level at which rules are produced. Second, we address the issue of the appropriate governance structure. In other words, does EPL need a governance structure that will accompany its formation, consolidation and changes? More on the point, is there a link between the governance design and the definition of EPL?

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    Bibliographic Info

    Paper provided by CONNEX and EUROGOV networks in its series European Governance Papers (EUROGOV) with number 2.

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    Date of creation: 20 Mar 2007
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    Handle: RePEc:erp:eurogo:p0013

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    Web page: http://www.connex-network.org/

    Related research

    Keywords: European law; harmonisation; regulation; regulatory competition; private international law; multilevel governance;

    This paper has been announced in the following NEP Reports:

    References

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    1. Christian Joerges, 2004. "The Challenges of Europeanization in the Realm of Private Law: A Plea for a New Legal Discipline," EUI-LAW Working Papers 12, European University Institute (EUI), Department of Law.
    2. Snell, Jukka, 2002. "Goods and Services in EC Law: A Study of the Relationship Between the Freedoms," OUP Catalogue, Oxford University Press, number 9780199250097.
    3. Robert P. Inman & Daniel L. Rubinfeld, 1997. "Rethinking Federalism," Journal of Economic Perspectives, American Economic Association, vol. 11(4), pages 43-64, Fall.
    4. Scharpf, Fritz W., 2002. "The European Social Model: Coping with the challenges of diversity," MPIfG Working Paper 02/8, Max Planck Institute for the Study of Societies.
    5. Baldwin, Robert & Cave, Martin & Lodge, Martin, 2011. "Understanding Regulation: Theory, Strategy, and Practice," OUP Catalogue, Oxford University Press, edition 2, number 9780199576098.
    6. Romano, Roberta, 1985. "Law as a Product: Some Pieces of the Incorporation Puzzle," Journal of Law, Economics and Organization, Oxford University Press, vol. 1(2), pages 225-83, Fall.
    7. Charles M. Tiebout, 1956. "A Pure Theory of Local Expenditures," Journal of Political Economy, University of Chicago Press, vol. 64, pages 416.
    8. Abbott, Kenneth W. & Snidal, Duncan, 2000. "Hard and Soft Law in International Governance," International Organization, Cambridge University Press, vol. 54(03), pages 421-456, June.
    9. Van Den Bergh, Roger, 1996. "Economic criteria for applying the subsidiarity principle in the European community: The case of competition policy," International Review of Law and Economics, Elsevier, vol. 16(3), pages 363-383, September.
    10. Jules Stuyck, 2005. "EC Competition Law After Modernisation: More than Ever in the Interest of Consumers," Journal of Consumer Policy, Springer, vol. 28(1), pages 1-30, November.
    11. Fabrizio Cafaggi, 2006. "Rethinking Private Regulation in the European Regulatory Space," EUI-LAW Working Papers 13, European University Institute (EUI), Department of Law.
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    Cited by:
    1. Tony Prosser, 2008. "Self-regulation, Co-regulation and the Audio-Visual Media Services Directive," Journal of Consumer Policy, Springer, vol. 31(1), pages 99-113, March.

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