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 4: European System of Private Laws: An Economic Perspective

Wolfgang Kerber

Subjects: law - academic, european law


Wolfgang Kerber 1. INTRODUCTION Like legal scholars, economists have also based their theories on public policy on the fundamental difference between the (sovereign) nation state and the international (or global) level. The policy aim was the promotion of the welfare of the population in the nation states; therefore the nation state was the ‘natural’ place for the competences of economic and social policies. Beyond the level of the nation state, economics has always emphasised the importance of the international division of labour, based upon economic theories of international trade. Although the need to have an institutional framework for international trade (especially for enforcing free trade) has always been stressed, these international rules, based upon international treaties, have been seen in economics as very special rules – in much the same way that international law has been viewed from the perspective of the legal systems of the nation states. This paradigm of the strict separation of the national level and the international level has been increasingly questioned since the 1990s, because it no longer seems to grasp the recent economic, social, and legal developments in a globalised world. In political science, the law and economics more or less elaborated notions of multi-level governance or multi-level systems of jurisdictions have been suggested as an alternative approach.1 This is also linked with the thesis of the decreasing importance of the traditional nation state. This change of perspective seems to have been necessitated by several major developments of the last two decades: 1. Through liberalisation...

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