The Proposed Common European Sales Law: Have the Right Choices Been Made? Introduction to a Special Issue

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Authors: G. Low, J. Smits

Volume 19 - p. 3

Europe’s Raison d’Être: Leadership, Democracy – or both? Reflections on G. de Búrca and J. Weiler

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Authors: A. Føllesdal

Volume 19 - p. 7

Review of M. Wojewoda, ‘Mandatory Rules in Private International Law’

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Authors: A. Zanobetti

Volume 19 - p. 9

The Court of Justice of the European Union as a Rhetorical Actor

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Authors: M. Paso

Volume 19 - p. 12

Content: The aim of this article is to discuss the nature of power the Court of Justice of the European Union exercises. It has been argued that the Court of Justice is a political actor. If it is, then it would make perfect sense to assume that the languag...e used in the Court of Justice would resemble the language used in political forums. The aim of the present article is to examine whether the rhetoric that the Court of Justice uses includes elements of political rhetoric. The present author’s first argument is that the rhetoric of the Court of Justice does have similar features to the rhetoric used in political speeches. The second argument is that reasoning that has a political flavour or a purely persuasive effect cannot be simply treated as bad and unacceptable. The legal decision is not purely legal but also a decision to solve a given problem of everyday life. Additionally, courts are social institutions with discretionary power. Legal decisions cannot therefore be void of emotional references.hide

More Consistency and Legal Certainty in the Private Law Acquis: A Plea for Better Justification for the Harmonization of Private Law

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Authors: E. Van Schagen

Volume 19 - p. 37

Content: The use of Article 114 TFEU to harmonize private law seems to be based on standard justifications that have facilitated legislative practices that may undermine the quality of the private law acquis. Arguably, better justification might limit these... practices. Firstly, better justification entails exploring more thoroughly which aim should be pursued by the harmonization of private law, and to make this aim explicit in directives reforming and repealing older directives. Secondly, better justification of the degree of harmonization would have been based on a careful analysis of which degree of harmonization should be pursued in what cases, rather than choosing a degree of harmonization, and abandoning it if disadvantages emerge. Moreover, a careful analysis of the advantages and disadvantages of the different degrees of harmonization might prompt a reconsideration of maximum harmonization, especially in rapidly developing areas. Thirdly, better justification would involve consideration of which aims blanket clauses in the acquis are to pursue, whether they are likely to further flexibility and fair decisions, and which disadvantages may arise from the use of blanket clauses. Also, there would be more attention paid to the availability of a hierarchical court structure and enforcement mechanisms, as these elements may significantly affect the effectiveness of blanket clauses.hide

Equal Treatment on the Grounds of Movement and Union Choice-of-Law Rules under Article 81 TFEU

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Authors: R. Babayev

Volume 19 - p. 63

Content: Union choice-of-law rules adopted pursuant to Article 81 TFEU aim to promote the exercise of the Treaty free movement rights by providing certainty over the applicable law and predictability of litigation in the context of cross-border contractual,... non-contractual or other civil law relationships. At the same time, due to the territorial connecting factors that these choice-of-law rules are based upon, any possible difference in treatment in terms of the applicable law imposed in light of them cannot be excluded. In this respect, it is not clear whether such a difference in treatment could also be contrary to Article 18 TFEU and the Treaty free movement provisions that prohibit discrimination, not only on the grounds of nationality, but also on the grounds of movement.hide

C. Von Bar and E. Clive (eds.), Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR)

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Authors: B. Akkermans, S. Van Erp, E. Ramaekers

Volume 19 - p. 83

S. Vogenauer and J. Kleinheisterkamp (eds.), Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC)

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Authors: N. Kornet

Volume 19 - p. 93

The German Constitutional Court’s Judgment on Transnational Budget Aids in the Euro Area

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Authors: P.-C. Müller-graff

Volume 19 - p. 97

Cases C-403/08 and C-429/08 Murphy, Judgment of 4 October 2011, not yet reported

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Authors: H. Kahlert, U. Haas

Volume 19 - p. 110