Making European Private Law

Making European Private Law

Governance Design

Edited by Fabrizio Cafaggi and Horatia Muir Watt

This book covers various perspectives on the challenge of designing governance for EPL: the implications of a multi-level system in terms of competences, the interplay between market integration and regulation, the legitimacy of private law making, the importance of self-regulation, the usefulness of conflict of law rules, the role of intergovernmental institutions, and the aftermath of enlargement. In addressing these, the book’s achievements are to successfully link two areas of scholarship that have so far remained separate, EPL and new modes of governance, and to address institutional reforms. The contributions offer different proposals to improve governance: the creation of a European Law institute, the improvement of judicial cooperation among national courts, the use of committees for implementation of EPL.

Chapter 1: Introduction

Fabrizio Cafaggi and Horatia Muir-Watt

Subjects: law - academic, european law


Fabrizio Cafaggi and Horatia Muir-Watt 1. FRAMING THE QUESTIONS The current debate on the desirability and modes of formation of European Private Law (hereinafter ‘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, the advantages and disadvantages of codification of private law or of single subject matters.1 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 underlying the debate about the creation of EPL? Second, does the process of the creation of EPL require a particular type of governance structure? Private law definition – Private law operates through public legislation as well as private law-making. The former is ever more the combination of hard and soft law while the latter translates into codes of conduct, guidelines, principles and private regulations. European private law, marked by its regulatory function, encompasses both mandatory and default rules.2 Both in relation to legislation and adjudication the potential strategic differentiation between the two sets of rules has not yet been fully analysed.3 Can we separate private law legislation 1 See Grundmann S. and M. Schauer (2006), The architecture of European codes and contract law, The Hague: Kluwer; Hesselink M. (2006), ‘Introduction’, in Hesselink, M. (ed.), The politics of a European civil code, The Hague: Kluwer, p. 3; and also Research Group on the...