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 13: The Making of European Private Law: Governance Design

Fabrizio Cafagii

Subjects: law - academic, european law


1 Fabrizio Cafaggi 1. THE DEFINITION OF EPL AND ITS MULTILEVEL DIMENSION European Private Law (EPL) is a stipulative not a legislative definition;2 the result of scholarly work, which has entered policy discussion, concerning desirability and feasibility of the harmonization process of different areas, traditionally associated with private law. This debate has focused for some time on the opportunity to draft a European Civil Code.3 After extensive debate, even among European institutions, the focus has shifted onto a less 1 This chapter builds on a working paper jointly prepared with Horatia MuirWatt in the summer of 2005 for the research project on regulation and governance within the NEW GOV project. Thanks to Karen Banks, Bruno de Witte and Paolo Ponzano for useful conversations concerning some of the issues addressed in the chapter. Thanks for valuable research assistance to Lukasz Gorywoda and Sophie StallaBourdillon. Responsibility is my own. 2 The expression ‘private law’ is not defined in the resolutions of the European Parliament; see Alpa, G. (2000), ‘European Community Resolutions and the Codification of “Private Law”’, European Review of Private Law, 2 (8), 321–34, at p. 324. On the European private law see Hesselink, Martijn Willem (2000), The New European Private Law: Essays on the Future of Private Law in Europe, The Hague and London: Kluwer Law International; Smits, J. (ed.) (2001), The Contribution of Mixed Legal Systems to European Private Law, Antwerp: Intersentia; Grundmann, S. (2001), ‘The Structure of European Contract Law’, European Review of Private Law,...

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