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Contract and Regulation

A Handbook on New Methods of Law Making in Private Law

Edited by Roger Brownsword, Rob A.J. van Gestel and Hans-W. Micklitz

Contract and Regulation: A Handbook on New Methods of Law Making in Private Law sheds light on the darker side of contracts. It begins by exploring the ‘regulatory space’ in which projects are planned, deals are done, and goods and services are consumed, then shows how a ‘bottom-up’ approach can be adopted in order to view this transactional space through the eyes of contractors. The expert contributors explore modes of governance that do not fit nicely into traditional contract theory, paying special attention to three key examples: governance and codes of conduction, networks and relations, compliance and use.
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Anna Beckers

This chapter focuses specifically on corporate social responsibility codes of conduct and argues that they can be described as a phenomenon of genuine regulation initiated by corporations. As a consequence, private law as the applicable legal framework itself needs to become more regulatory. The chapter starts by proffering an explanation of why corporate codes have only recently started to interest contract law scholars. It continues analysing the way in which corporations use (and do not use) contracts and contract law in developing and practising their codes, and how contract law doctrine perceives this strategy. Subsequently, a normative argument is developed and contextualized in favour of a stronger role for contract law in enforcing and regulating corporate codes. The chapter concludes with a discussion of the need for contract law to become regulatory in a novel sense: contract law needs to be responsive to codes of conduct, specifying clear rights and obligations that corporate regulators assume when developing a code of conduct. Keywords: Corporate social responsibility, codes of conduct, contract law, Varieties of Capitalism, contract governance

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Mislav Mataija

This chapter examines the impact of EU competition and free movement law on codes of conduct. It focuses on three sectors: the legal profession, sports regulation and the setting of product standards. In these sectors, industry bodies adopt a wide range of codes of conduct or similar documents, which are potentially open to challenge under the EU free movement or competition rules. The chapter assesses the relationship of such codes with EU internal market law through the lens of conflict (wherein EU law imposes requirements private regulators must fulfil), internalisation (wherein EU law refers to codes or relies upon them as implementation tools) and leverage (wherein EU law relies upon codes to reform the practices of private regulators). Finally, the chapter argues that EU internal market law can moderate or facilitate the use of codes of conduct in contract adjudication by providing a mechanism for courts to disregard discriminatory or unfair provisions. Keywords: Codes of conduct, competition law, internal market law, regulation of sport, standard-setting, legal services

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Rónán Condon

The interpretative turn in English contract law has opened contract law towards relational and network elements in contractual practices. Courts are more willing to take account of diffuse norms of co-operation. The driver is a modern understanding of markets and party intention. However, the merits of the interpretative turn are doubted. It is submitted that the revised understanding of party intention is an unsuitable prism through which to view contemporary contractual practices. Additionally, it undermines the discreteness of contract law. The author claims that contract law should be understood as a way to ‘contract out’ of the default background legal norms rooted in fairness, namely equity and tort law. When we re-conceptualise contract law in this way, the focus turns to developing interface rules between contract, tort and equity. This leads to ‘productive learning’ whereby discrete and relational elements can be balanced, repurposing the law for a society of long-term and network contracting. Keywords: contract, relational turn, networks, equity, tort

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Marie-Claire Menting

Industry codes of conduct increasingly play a role in regulating B2B and B2C relationships and have, as such, become part of the contractual regulatory space. Nonetheless, the relationship between these codes and contract law as the traditional way of regulating private relationships still remains opaque. This chapter sheds some light on the relation between industry codes and contract law by addressing one of the questions that the regulatory role of these codes raises: is there a need for a framework for industry codes in contract law? Building on an analysis of the practice of industry codes, their interaction with the traditional foundations of contract law and a number of Dutch contract law cases involving industry codes, it is argued that contract law itself already includes leads to overcome the conceptual challenges that industry codes pose and to give further shape to the relationship between these codes and contract law. Keywords: industry codes of conduct, foundations of contract law, regulation, B2B and B2C relationships

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Roger Brownsword, Rob A. J. van Gestel and Hans-W. Micklitz

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Monika Namysłowska

Compliance with contracts and regulations is increasingly being monitored by various experts, who assume the role of quasi-lawyers. The decision to employ a compliance officer, a trustee or a data protection officer primarily depends on the type of norms which need to be complied with. Particular professions aimed at monitoring compliance differ. However, all compliance specialists share several characteristic features, such as independence, which guarantee the effective performance of their tasks. Monitoring compliance is more and more often required by law and consists in performance of public tasks due to the delegation of the powers of public authorities to compliance professionals. The use of private actors to achieve the objectives of the state raises numerous doubts. The growing importance of compliance experts clearly illustrates the need to find a proper balance between the public and private interest as well as between private and public law. Keywords: compliance, monitoring compliance, compliance officer, trustee, data protection officer

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Catherine Mitchell

Although business networks are often created or supported by contractual arrangements between independent firms, there is a good deal of scepticism within network scholarship that the general law of contract has much of a role to play in networks. This chapter explores the role of contract law in facilitating the internal workings of network forms of commercial organisation. It considers which aspects of networks, and which network problems, can be adequately dealt with by contract law concepts and tools, and whether reform or development of contract law is necessary. While the sceptical view concerning the capacity of contract law to resolve problems in line with network expectations is certainly warranted, it is not clear that the commitment to ‘traditional’ contract doctrine is absolute in law, and that we cannot move to an alternative understanding, at least in the commercial sphere, that better accommodates expectations generated by the network. Keywords: networks, commercial contracts, English contract law

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Eric Tjong Tjin Tai

In the discussion between formal and informal contract law it is suggested that networks would benefit from informal contract law. This hypothesis is tested with the example of Dutch contract law, which is relatively informal. Three case studies are explored, which suggest that an informal contract law does remove certain barriers, but introduces other problems. Further doctrinal research is required in order to adequately facilitate networks. Solutions should not solely be looked for in additional rules, but rather in proportionate remedies and procedure-oriented communication structures. Keywords: networks, linked contracts, contract law, informal contract law

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Dorota Leczykiewicz

This chapter examines the relation between private regulation, effectuated through contract, and the desirability of compliance with such regulation, from the perspective of the fundamental precepts of contract law, in particular freedom of contract. It investigates what intellectual advantages can be gained by looking at the question of contractual performance as that of regulatory compliance. It observes that, unlike the contractual approach, the regulatory approach invites us to elucidate the strategic choices which states and the EU need to make vis-à-vis the enforcement of private regulatory regimes. The chapter argues that despite its limitations, it is contract law which offers a much more promising start to providing the grounds of judicial review of contracts producing regulatory effects. It is accepted, however, that the framework of contract law would have to be reformed to include more socially focused grounds for review, supplementing but not replacing the considerations of freedom to choose one’s individual goals and ability to bargain. Keywords: private regulation, freedom of contract, private enforcement, regulatory theory, review of contracts