Chapter 13: The Fallacy of the Common Core: Polycontextualism in Surety Protection – a ‘Hard Case’ in Harmonisation Discourse
Mel Kenny* and James Devenney** ‘Take but degree away, untune that string, And hark what discord follows. Each thing meets In mere oppugnancy.’ – W. Shakespeare, Troilus and Cressida, Act 1, Scene iii, 109–110 I. INTRODUCTION This chapter is located in the context of EU initiatives aimed at creating a single market in financial services1 and the increasingly acrimonious debate on the future of European Private Law.2 More specifically, this chapter focuses on the protection * Reader in Commercial Law, School of Law, University of Leicester, UK. ** Chair in Commercial Law, School of Law, University of Exeter, UK. We are grateful to the participants and organisers of the 2008 WG Hart Workshop (Institute of Advanced Legal Studies, London). 1 See Kenny, M (2007), ‘Standing Surety in Europe: Common Core or Tower of Babel’, 70 Modern Law Review 175 at 177–9. 2 See, for example, Markesinis, B (1997), ‘Why a Code is Not the Best Way to Advance the Cause of European Legal Unity’, 5 European Review Private Law 519; Legrand, P (1997), ‘European Legal Systems are Not Converging’, 45 International and Comparative Law Quarterly 52; Legrand, P (1997), ‘Against a European Civil Code’, 60 Modern Law Review 44; Legrand, P (2003), ‘The Impossibility of Legal Transplants’, 4 Maastricht Journal of European and Comparative Law 111; Legrand, P (2006), ‘Antivonbar’, 1 Journal of Contract Law 1; von Bar, C (2002), ‘From Principles to Codification: Prospects for European Private Law’, 8 Columbia Journal of European Law 379; Lando, O (2003), ‘Does the...
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