European Private Law after the Common Frame of Reference

European Private Law after the Common Frame of Reference

Edited by Hans-W. Micklitz and Fabrizio Cafaggi

This book paves the way for, and initiates, the second-generation of research in European private law subsequent to the Draft Common Frame of Reference (DCFR) needed for the 21st century. The book gives a voice to the growing dissatisfaction in academic discourse that the DCFR, as it stands in 2009, does not actually represent the condensed available knowledge on the possible future of European private law. The contributions in this book focus on the legitimacy of law making through academics both now and in the future, and on the possible conceptual choices which will affect the future of European private law. Drawing on experience gained from the DCFR the authors advocate the competition of ideas and concepts.

Chapter 10: Fitting the Frame: An Optional Instrument, Party Choice and Mandatory/Default Rules

Horatia Muir Watt and Ruth Sefton-Green

Subjects: law - academic, european law


Horatia Muir Watt and Ruth Sefton-Green I. 1. INTRODUCTION Tool-box, Code or Mere Source of Inspiration? The legal status of the proposed Common Frame of Reference is, to say the least, somewhat obscure.1 A recent press release by the Council2 now defines it as ‘a set of non-binding guidelines to be used by the lawmakers at Community level on a voluntary basis as a common source of inspiration or reference in the lawmaking process’.3 The academic Draft Common Frame of Reference4 indicates, too, that it has been drawn up on the assumption that it could serve as a legislator’s guide or tool-box, leaving open its destiny as a political text.5 As a mere source of inspiration to which Community lawmakers may or not choose to refer, such a framework is clearly of seriously diminished interest. Indeed, in this perspective, it becomes entirely unimportant that whatever text emerges from the political process may not be a ‘frame of reference’ at all, in the sense 1 See von Bar, C., E. Clive and H. Schulte-Nölke (eds) (2008), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference Interim outline edition, Sellier (henceforth ‘DCFR’) para. 6, admitting that it is mute whether and to what end and by what means there will be a Common Frame one day. See Reich, N. (2006), ‘A Common Frame of Reference (CFR) – Ghost or Host for Integration?,’ ZERP, Bremen, Diskussionspapier 7/2006. 2 Press Release of 18 April 2008, 8397/08 (presse 96)...

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