Chapter 9 - The Use of National Techniques in the Development of European Private Law

Summary

Introduction

The case studies found that the coexistence of actors had generally not benefited the quality of the law on STCs, contrary to pluralist arguments. However, the previous chapters have indicated that instances of innovation and mutual learning have developed, and regulatory competition may provide actors with an additional incentive to develop innovative rules. In addition, European initiatives – especially initiatives from non-state actors, and, otherwise, especially in already internationalised fields – have prompted actors to take into account the interests of non-national actors. It follows that in some cases, the coexistence of actors has proven beneficial. It has been argued that the development of a framework, based on the principle of private autonomy and concerns of Fremdbestimmung where national state actors retain a prominent role, will likely help to improve European private law.

According to pluralist perspectives, the coexistence of actors may also strengthen European private law developed through national techniques. However, the case studies indicated that the use of national techniques has not been amended to take into account interdependence. Especially in the Dutch case study, the lack of interaction between courts has led to inconsistency and unpredictability. Both in German and the Dutch legal order, the restraint of national and European actors has limited the responsive development of the acquis. More generally, national and European actors have adopted a narrow approach in the debate on the further development of European private law. This chapter asks whether these problems and the lack of benefits are visible more widely, or whether the coexistence of actors has benefited European private law developed through national techniques.

Paragraph 9.2 will discuss the use of codifications and paragraph 9.3 will turn to the use of soft laws. Subsequently, paragraph 9.4 will consider blanket clauses and paragraph 9.5 will analyse the use of general principles. Paragraph 9.6 will draw general conclusions.

The use of codifications in a multilevel legal order

Dutch and German actors have not taken interdependence as a starting point in their interaction with other actors or in the development of the law on STCs through codifications and problems of responsiveness, consistency and predictability have been signalled in the case studies.