1 COMPARATIVE PRIVATE LAW Introduction and formation Professor Mads Andenas MA PhD DPhil University of Oslo; Senior Research Fellow, Institute of Advanced Legal Studies, University of London; Visiting Research Fellow, Institute of European and Comparative Law, University of Oxford.

2 Overview of today’s lectures Introduction to the course DCFR and national law, in particular the Common Law Comparative law in the Courts: – The national supreme courts – International and European courts

JUS5240 Comparative Private Law Lecture Outline Autumn Two lectures on the DCFR by Professor Kåre Lilleholt. 3. Overview of the topics of the course. Placing the DCFR in an international perspective. The discipline of comparative law. Legal transplants and convergence of legal families. 4. Formation of contracts. 5. Interpretation, Reasonableness, Good Faith. 6. Liability and other Remedies. 3

Resources Subject page: ex.xml Reading list: 1/pensumliste.xml Materials from previous years, see h11/pensumliste.xml h11/pensumliste.xml 4

Introduction lectures Overview of the topics of the course. Placing the DCFR in an international perspective. The discipline of comparative law. Legal transplants and convergence of legal families. 5

Reading for today and next week: Consult the literature list, for example, Bogdan, Michael: Comparative Law, Kluwer/TANO 1994 and Moss, G.C.: Lectures on Comparative Law, on the topics of the discipline of comparative law, legal transplants and convergence of legal families. As preparation for this lecture, it is sufficient to use this or other literature to familiarize oneself with these topics. Some may find the article by Andenas/Fairgrieve 'There is A World Elsewhere' which is uploaded under course material helpful. 6

Today’s lecture IFocus on the DCFR and the Common Law II Comparative law in the courts 7

Placing the DCFR in an international perspective. How do these international instruments interact: UNIDROIT Principles The Convention on the International Sale of Goods (CISG) adopted by UNCITRAL. PECL DCFR 8

9 DCFR and Common Law DCFR Relationship to national legal systems and traditions Special issues relating to the Common Law.

10 DCFR and its general reception Some support from participants Critical approaches typified by Zimmermann and Hugh Collins

11 The autonomies of law The autonomies of law as a challenge to a European Civil Code or DCFR National legal systems Private law, public law Commercial law, private law European law in the national traditions of private law A set of false dichotomies?

12 European law and the challenge of common law Common law contracts in areas such as finance, IP Common law practice with US and London firms.

13 The efficiency of the common law World Bank: Doing Business – Understanding regulation 2004 – Removing obstacles to growth 2005 Réponse de l’Association Henri Capitant aux Rapports "Doing business" de la Banque Mondiale - Les droits de tradition civiliste en question

14 How the common law sees itself Tennekoon and Wood

15 The role of legislation in the common law of commerce Contract, case law and default rules in legislation. Limited. No general codifications. Exceptions, insurance codifications.

16 Some features of the common law of England: traditional argument Structure of contract law is different: limited default rules, contract practice aims at providing an autonomous and complete regime. Interpretation of contracts: exclusionary rules (pre-contractual negotiations and postcontractual behaviour) and literalism. Role of good faith. Creditor-friendly.

17 How is the common law developing Law on interpretation of contracts is changing: exclusionary rules and literalism. Role of good faith. Creditor-friendliness is less obvious in insolvency but still more freedom in constructing securities. Structure of contract law remains different in this respect: limited default rules, contract practice aims at providing an autonomous and complete regime. But here many areas follow this direction.

18 Critical perspectives on these common law features Structure of contract law: what is the cost of current contract law practice with no default rules to rely on, transaction cost in contracting, quality of contract terms Interpretation of contracts: did these rules ever provide the benefits envisaged? Creditor-friendliness: the economic cost benefit analysis. Personal credit and security rights. Creditor protection and access to credit without security.

19 Absence of principles P Birks English Private Law

How do courts use comparative law? 20

21 The national paradigm and the closed system Did it ever apply? – In legislative reform – In the courts Current developments: Italian and English courts, the US. – Fairchild v Glenhaven Funeral Services Ltd, [2002] UKHL 22. – Sentenza n del 16 ottobre 2007 (Sezione Prima Civile, Presidente M. G. Luccioli, Relatore A. GiustiSentenza n del 16 ottobre 2007 (Sezione Prima Civile, Presidente M. G. Luccioli, Relatore A. Giusti, “Salute,accanimento terapeutico,stato vegetativo,eutanasia”). – Roper v Simmons 543 US 551 (2005).

22 The positions in the US debate. Harold Koh, Sir Basil Markesinis, Jeremy Waldron, the ‘liberal’ justices Mary-Ann Glendon, The Federalist Society, the conservative justices

23 The positions in the English debate. Sir Basil Markesinis, Lord Bingham: making use of comparative law as a tool John Bell: limitations of context but still of use in policy reform and legal analysis Jane Stapleton, Lord Hoffmann

24 Can courts make use of comparative law? – The use of foreign law – The indirect entry points for foreign law and comparative law

25 Fairchild v Glenhaven Funeral Services Ltd, [2002] UKHL 22 Development of the law in this country cannot of course depend on a head-count of decisions and codes adopted in other countries around the world, often against a background of different rules and traditions. The law must be developed coherently, in accordance with principle, so as to serve, even- handedly, the ends of justice. If, however, a decision is given in this country which offends one’s basic sense of justice, and if consideration of international sources suggests that a different and more acceptable decision would be given in most other jurisdictions, whatever their legal tradition, this must prompt anxious review of the decision in question.

26 JD (FC) (Appellant) v East Berkshire Community Health NHS Trust and others (Respondents) and two other actions (FC), [2005] UKHL 23, per Lord Bingham: The question does arise whether the law of tort should evolve, analogically and incrementally, so as to fashion appropriate remedies to contemporary problems or whether it should remain essentially static, making only such changes as are forced upon it, leaving difficult and, in human terms, very important problems to be swept up by the Convention. I prefer evolution.

27 Roper v Simmons 543 US 551 (2005), Kennedy J (majority opinion): It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10–11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

28 A starting point for international courts The limited extent to which the ICJ cites other courts The varying extent to which other courts cite judgments from other jurisdictions An empirical equiry: counting citations 28

29 The increase in citations The ICJ beginning to cite other courts Other international courts have started to do so, or do so to increasing degree National constitutional and other courts as well Continues as an empirical equiry 29

30 What does the increase mean? Can this be a useful perspective in which to compare – the form and style of judgments, and, – the sources of law? Does it say something about – the relationship between different treaty regimes, – between international and national law, – the nature of international law, and, – rule of law concepts and the role of courts? 30

31 Case studies The ICJ International criminal courts The European courts (not a cohesive category here) The WTO panels and the AB Investment arbitration 31

32 The ICJ as a case study The form of ICJ judgments. No doctrine, no references to cases but its own. Compare VCLT art 31. (Where does this come from? Dead authors in the Lords and the form of cassation) Bosnia and Herzegovina v Serbia and Montenegro (2007), references to both the Trial Chamber of the ICTY and the ICTR. Reliance on the ICTY for the intent required for the crime of genocide and cites the ICTY and the ICTR on the requirement of ‘substantiality’ in establishing intent. See Rosalyn Higgins ‘A Babel of Judicial Voices’ (2006) 55 ICLQ 791. Diallo (2010): the full break through 32

33 International criminal courts as a case study Remarkable openness in the use of international and national sources, including US and German constitutional case law. In defining relevant tests under their statutes, devising procedural rules etc. In particular ICTY’s exposed position could militate against using national sources but this does not obtain. ICC and national and regional (ECHR) sources. 33

34 The European courts as a case study I: The ECJ I The European courts are not a cohesive category here ECJ and national courts ECtHR : Familiapress expressly followed ECtHR in Lentia and Criminal Proceeding v X followed Kokkinakis v Greece. 34

35 The European courts as a case study I: The ECJ II ICJ: Case T-115/94, Opel Austria v Council [1997] ECR II- 39; Case C-162/96 Racke v Hauptzollamt Mainz [1998] ECR I-3655, citing Gabcíkovo-Nagymaros Project (Hungary v Slovakia) on principle of pacta sunt servanda which then was not given effect Kadi as paradigm case: relies only on internal sources Compare with ECtHR in Al-Adsani and the statement about ‘the Convention … cannot be interpreted in a vacuum’ and the rich use of other case law. (Differences in facts and law may justify some of the differences between these to ‘paradigm’ cases.) 35

36 The European courts as a case study II: The ECHR I Cites national case law also on the European Human Rights Convention. It cites decisions from international courts and tribunals (including the ECJ), and of other international bodies and committees. The UN Human Rights Committee has a special position in the UN human rights system, and the ECHR has in a number of cases cited and taken due account of the Human Rights Committee’s decisions. Interesting examples of dialogues with national courts. 36

37 The European courts as a case study II: The ECHR II Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v Ireland (2006) 42 EHRR 1 discusses the case law of the ECJ in detail. In principle, the protection offered within the EC legal system meets a requirement of equivalency and gives rise to a ‘presumption of conventionality.’ It referred to the combination of the guarantees offered on the domestic level and by the ECJ. 37

38 Investment arbitration as a case studie Typically ICSID and bilateral investment treaty References to other arbitral awards Free and open use of authorites Form of awards Compare NAFTA awards 38

39 The WTO panels and the AB as a case studie Intense discussion about WTO as closed and autonomous system and the use of sources outside State perspective: limit powers of DS and AB EU concepts unacknowledged in the background The importation of US domestic discourses about judicial review, legitimacy of international tribunals (Goldstein) 39

40 The practice of national courts I The national paradigm and the closed system Current developments: Italian and English courts, the US. – Fairchild v Glenhaven Funeral Services Ltd, [2002] UKHL 22. – Sentenza n del 16 ottobre 2007 (Sezione Prima Civile, Presidente M. G. Luccioli, Relatore A. Giusti, “Salute,accanimento terapeutico,stato vegetativo,eutanasia”). – Roper v Simmons 543 US 551 (2005). The positions in the US debate. – Harold Koh, Sir Basil Markesinis, Jeremy Waldron, the ‘liberal’ justices – Mary-Ann Glendon, The Federalist Society, the conservative justices 40

41 The practice of national courts II Can courts make use of comparative law? – The use of foreign law – The indirect entry points for foreign law and comparative law 41

42 The practice of national courts III Some current areas of particular use or where there is a general recognition of comparative law as a persuasive authority or source of law: – Application of normative models from comparative law where national law is undetermined. – Giving weight to comparative law when reviewing factual assumptions about the consequences of legal rules, or assumptions about universal applicability of rules or principles. Arguments based in this kind of analysis have been used to overturn authority in domestic law in a number of cases. – A particular role in applying European and international law, including European Human Rights law. – A further role in developing principles of domestic law. 42

43 The practice of national courts IV The use of international law: – Case law from international and other national courts in resolving relationship between national and international (including EU and ECHR) law 43

44 Fragmentation discourse and constitutionalisation debate I VCLT article 31(3)(c): ‘(c) any relevant rules of international law applicable in the relations between the parties’. underlying objective of systemic integration. Autonomous treaty regimes and limitations on dispute settlement bodies. ‘International rule of law’ 44

45 Fragmentation discourse and constitutionalisation debate II Gilbert Guillaume ‘The Future of International Judicial Institutions’ (1995) 44 ICLQ 848 Rosalyn Higgins ‘A Babel of Judicial Voices’ (2006) 55 ICLQ 791 International Law Commission (Martti Koskenniemi) Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law (2006) Positions in the US debate: Goldstein and Slaughter 45

46 Constitutionalisation in courts counteracting fragmentation? Courts’ use of precedent and other authorities to secure coherence in their own jurisdiction Typical role of courts to deal with constitutional principles, relationship to other jurisdictions etc both at national and international level The use of authorities as a mechanism to promote coherence in a wider international law system Harold Koh’s process and compliance theory 46

47 Challenges to scholarship Hélène Ruiz Fabri: focus on form of judgment, comparing use of sources of law across jurisdictions, moving between national and different international jurisdictions. Meeting the challenge of the US with legal scholarship or systematic and analytical (’doctrinal’) analysis which may assist courts. 47

The discipline of comparative law Comparative law as a discipline Comparative law as a method Discuss the role of comparative law in legislation, in the courts, in legal commercial practice 48

Legal transplants and convergence of legal families What is a “legal transplant” What is a “legal families” Criticism of traditional comparative law Lord Denning: “to move across the boundaries that divide the law and discover the underlying unities” 49

Traditional distinction common law/civil law on contracts Common law judge interprets contracts: – Literally – Does not imply terms – Does not consider negotiations or subsequent conduct – Does not integrate with good faith or loyalty – Caveat emptor – Fairness = Predictability 50

Civil law judge interprets contracts (traditional perspective) – According to their purpose and the parties intentions – Implies terms – Considers negotiations and subsequent conduct – Integrates with good faith and loyalty – Reasonableness – Fairness = balance in the specific case 51

The core international instruments in our field: What do they cover, what is their basis, and how do these international instruments interact: UNIDROIT Principles The Convention on the International Sale of Goods (CISG) adopted by UNCITRAL. PECL DCFR 52

Our three remaining main topics: 4. Formation of contracts. 5. Interpretation, Reasonableness, Good Faith. 6. Liability and other Remedies. 53

Reading Markesinis, Fedtke, Engaging with Foreign Law, Oxford Hart Publishing 2009 G Cordero-Moss, International Commercial Law, UIO Oslo

Past exam papers - JUR 1240 and JUR Comparative Private Law Autumn 2010 Compare the approach to issues of (1) interpretation and (2) formation of contracts in the transnational restatements, principles and international conventions on contract law. You may wish to look into one or more systems of national law to support your argument. 55

Past exam papers - JUR 1240 and JUR Comparative Private Law Autumn 2009 Please explain the approach to interpretation of contracts taken by the transnational restatements of contract law. Autumn 2008 Please explain the major differences and similarities between two systems of law of your choice belonging to different Legal Families. 56

Past exam papers - JUR 1240 and JUR Comparative Private Law Spring 2007 Please compare the role of good faith in the performance of contracts in the common law, the civil law and in the non-national law. Spring 2006 Different legal systems have different approaches to the liability for non performance of contracts. Can you explain at least two of these approaches? 57

Past exam papers - JUR 1240 and JUR Comparative Private Law Autumn 2006 The division into legal families does not always reflect differences or similarities between specific legal systems. Please illustrate at least one legal institute within the law of contracts that is treated substantially equally in two different legal families, and one that is treated differently. Is the division into legal families useful, in your opinion? 58

Term paper : for discussion Please explain the approach to interpretation of contracts taken by the transnational restatements of contract law, and discuss if the DCFR represents anything new in this respect. 59

No lecture Wednesday12:15-14:00 Would this alternative suit? Wednesday12:15-14:00 60

4. Formation of contracts In the international instruments, in the DCFR In national law: different models 61

Formation in common law Two main elements: 1) Agreement a) Offer b) Acceptance 2) Consideration Other elements: Intention to create legal relations, Capacity, Formalities 62

The offer in common law Definition – Statement by one person to another person, evincing his/her willingness to enter into contractual relations with that person on certain terms. Distinguish offer from an “Invitation to Treat” – auctions, tenders, Carbolic Smoke Ball. 63

«Consideration» in common law 1) Must be a connection between the consideration and the promise which it is said to support. 2) Must move from the promisee, but not necessarily to the promisor (Coulls v Bagot’s Executor and Trustee). 3) Must be sufficient but need not be adequate (Chappell & Co v Nestle & Co Ltd)– Illegal consideration is not sufficient, and excessively inadequate consideration may not be sufficient. 4) Past consideration is not good consideration (Lampleigh v Brathwait). 64

French law and «cause» Art 1108 of the Code Civil: Consent, Capacity, Object, Cause 65

Formation in the international instruments: UNIDROIT Principles. The Convention on the International Sale of Goods (CISG) adopted by UNCITRAL. PECL. DCFR. 66

Formation in the UNIDROIT Principles : PICC third edition 2010 CHAPTER 2 — FORMATION AND AUTHORITY OF AGENTS SECTION 1: FORMATION 67

CISG The Convention on the International Sale of Goods (CISG) adopted by UNCITRAL Part II. Formation of the contract 68

Formation in PECL and DCFR : 69

5. Interpretation, Reasonableness, Good Faith 70