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Hans-W. Micklitz, Anne-Lise Sibony and Fabrizio Esposito

For decades, consumer law has been the stepchild of the legal discipline, neither public nor private law, not classic but postmodern, not ‘legal enough’, ‘too political’, in short, a discipline at the margins, suffering from the haut goût and striving to change society through law for the ‘better’. Just like Atreyu, Frodo Baggins, Luke Skywalker, the Ghostbusters, Naruto Uzumaki, Dreamworks’ dragon trainer, and many others, consumer law is the underdog carrying the burden of saving the day. Times are changing. We are perhaps reaching the point at which the world comes to understand the real value of consumer law in a society that is dominated by and dependent on private consumption. Publishing houses and ever more numerous researchers from public and private law perspectives, working on national, European and international law are getting into what is no longer a new legal field. Now the time is ripe for a whole Handbook on Consumer Law Research which brings methodology to the fore. This first chapter pursues three aims: first, to embed consumer law research into the overall development of legal research since the rise of consumer law in the 1960s; secondly, to explain our choice to focus on the behavioural turn in consumer law research and present the range of contributions in this volume that engage with the upcoming strand of research; and thirdly, to explore how the recent attention to behavioural insights can be combined with a pre-existing body of doctrinal research and social legal research in consumer law, and outline avenues for further research.

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Edited by Hans-W. Micklitz, Anne-Lise Sibony and Fabrizio Esposito

Consumer law is worthy of greater academic attention at a time when many new questions arise and old ones need new answers. This unique handbook takes the reader on a journey through existing literature, research questions and methods. It builds on the state of the art to offer a springboard for jumping to the heart of contemporary issues and equips researchers with a starter’s kit to weave together rich traditions, ranging from socio-economics to behavioural analysis.
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Edited by Roger Brownsword, Rob A.J. van Gestel and Hans-W. Micklitz

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

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

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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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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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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