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 12: Re-allocating Horizontal and Vertical Regulatory Powers in the Electronic Marketplace: What to do with Private International Law

Sophie Stalla-Bourdillon


Sophie Stalla-Bourdillon INTRODUCTION The Directive 2000/31/EC on e-commerce (ECD) is certainly the ‘key instrument which …define[s] European e-regulatory policy and harmonise[s] significant legal domains which represented major obstacles to the development of the electronic Single Market’.1 Before going any further, it is important to pause for a moment and reflect on the precise characteristics of the ECD as a typical instrument of ‘régulation’. Indeed, under the influence of English and American Law, legal French has been enriched with the word ‘régulation’ to be distinguished from ‘règlementation’. This is more than a mere updating of the vocabulary. It is important to point out that the former embodies something different from the latter: it is ‘a work, consisting in introducing regularities into a social object, ensuring its stability, its durability, without setting neither all the elements nor the whole sequence, thus without excluding changes’.2 This mutation of the law-making philosophy entails significant consequences: it affects the way statutes are conceived and, as a consequence, drafted. As a result, statutory law no longer sets up a permanent trade-off between different interests with which private actors must comply, but seeks to adapt itself to the diversity of facts, finding its legitimacy in practical achievements more than in ethereal values. In other words, it relies on heterogeneous normative powers Edwards L. (2005), ‘Preface’, in The New Legal Framework for E-Commerce in Europe, Edwards L. (ed), Oxford and Portland, Oregon: Hart Publishing, pp. v–ix, at p. v. 2 Jammeaud A....

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