The Regulatory Function of European Private Law
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The Regulatory Function of European Private Law

Edited by Fabrizio Cafaggi and Horatia Muir Watt

In the context of the current debate on the desirability and process of forming European private law (EPL), this book considers one fundamental question addressing its descriptive and normative dimension: does and should EPL pursue regulatory objectives beyond market integration?
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Chapter 11: E-commerce from a Regulatory Perspective

Francesco Cardarelli


Francesco Cardarelli 1. THE REGULATORY FUNCTION OF TORT LAW Tortious liability appears to be only one of the many, possible, instruments of regulation and should be examined not within a general theory framework – which does not exist in EU law – but in its relationship with the specific regulatory framework. This means, on the one hand, that the existing tort provisions in EU law cannot be compared among themselves, and on the other hand their coherency must be considered having in mind what the objectives of the EU law are. Although this approach may not be very appealing for a traditional legal scholar – especially if brought up in a European continental environment – it opens the way to a law and economics analysis in order to assess its efficiency. This criterion could also be usefully applied to e-commerce regulation, comparing the tort provisions with the aims of Directive 2000/31 and verifying the economic effects of its enforcement both on e-commerce providers and on the parties that claim to have received damage. 2. COMPETING MODELS FOR LIABILITY IN ELECTRONIC COMMUNICATIONS Having this in mind, the provisions in Articles 12, 13, 14 and 15 of the Directive should be examined considering that its aim is, essentially, that of promoting the development of information society services, and therefore of the European undertakings that offer such services. Comparative lawyers have unanimously pointed out that this is a typical example of competition between legal systems in a globalized economy. In this case the competing model is the...

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