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
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.