KluwerLawOnline.com - European Business Law Review

Competition in International Sales Law: Introduction to Special Issue

Wed, 22 May 2013 12:00:00 +0000

In 2011 the European Commission published a proposal for a Regulation on a Common European Sales Law (CESL). This contribution forms the introduction to a special issue of the European Buniness Law Review, discussing the proposed CESL from the viewpoint of competition. If the CESL would be introduced, commercial parties engaged in cross-border transactions within the European Union will have to make an informed choice between the available legal regimes (CESL, CISG and national laws). The question then becomes which of these regimes is the most attractive for parties. The common theme throughout the contributions by Dalhuisen, Kornet, Kruisinga, Low and Meyer is that the Common European Sales Law in its present form will not be an attractive competitor on the European law market.

Content Type Journal Article
Part of Volume 24, Issue 3
Authors
- Jan M. Smits, Professor of European Private Law at Maastricht University.
Journal European Business Law Review
Online ISSN 0959-6941
Print ISSN 0959-6941

Some Realism about a Common European Sales Law

Wed, 22 May 2013 12:00:00 +0000

In 2011 the European Commission came with a draft Regulation for a law covering (the largely contractual aspects of) sales of moveable assets within the EU (CESL). It is meant for cross-border sales to consumers but may also be used by professionals for cross border sales amongst themselves as long as one party is an SME. It is intended as an opt-in instrument. The present draft is a carve out from the Draft Common Frame on Reference (DCFR) earlier presented informally as a text for a codification of private law within the EU. CESL may well be seen as a first step in its adoptation. It raises first the issue of practical need and of the quality of the proposal as a response. A closely related question is whether the EU has sufficient formal authority to legislate in this field in which connection the project poses the further question whether traditional codification thinking in the civil law mould remains the proper way forward and whether statists initiatives of this nature that seek to monopolise the field and subjugate all other sources of law are the most appropriate method of law formation in international business dealings. These matters were never properly considered but affect fundamentally the credibility and prospects of CESL.

Content Type Journal Article
Part of Volume 24, Issue 3
Authors
- Jan H. Dalhuisen, Professor of Law King’s College London.
Journal European Business Law Review
Online ISSN 0959-6941
Print ISSN 0959-6941

The Interpretation and Fairness of Standardized Terms: Certainty and Predictability under the CESL and the CISG Compared

Wed, 22 May 2013 12:00:00 +0000

The vast majority of cross-border commercial sales transactions are concluded on the basis of standardized contracts. When assessing the competitive advantage of various regulatory instruments such as the new proposal for a Common European Sales Law (CESL) and the UN Convention on the International Sale of Goods (CISG), the nature and purpose of such contracts has to be borne in mind. Since standardized contracts aim to promote certainty, predictability and uniformity with respect to a business' rights and obligations in numerous transactions, a set of rules that fosters certainty, predictability and uniformity in the interpretation and enforceability of such standardized contracts should be preferred. This contribution compares the CESL and the CISG in relation to contract interpretation and the control of fairness of standardized contract terms and concludes that although the CESL may have a competitive advantage in the sense that it deals with standard contract terms more comprehensively, the nature of many of its provisions will not promote legal certainty, predictability and uniformity.

Content Type Journal Article
Part of Volume 24, Issue 3
Authors
- Nicole Kornet, Assistant Professor of Commercial Law at the Maastricht University.
Journal European Business Law Review
Online ISSN 0959-6941
Print ISSN 0959-6941

Incorporation of standard terms according to the CISG and the CESL: Will these Competing Instruments Enhance Legal Certainty in Cross-Border Sales Transactions?

Wed, 22 May 2013 12:00:00 +0000

This article compares the regulation of standard terms in the UN Convention on Contracts for the International Sale of Goods (CISG) and the Draft Regulation on a Common European Sales Law (CESL). Even though the CISG does not contain any express provisions concerning standard terms, this issue is governed by the Convention. The CESL contains an express provision concerning the incorporation of standard terms, but one may wonder what to conclude from this provision concerning B2B transactions. Concerning the battle of the forms, there is legal uncertainty in the application of the CISG as it is not clear from the text of the CISG and from the legal literature which approach should be followed. The provision in the CESL on this topic is rather clear as it provides which theory should be followed. However how, in practice, cases should be solved is not yet fully clear.

Content Type Journal Article
Part of Volume 24, Issue 3
Authors
- Sonja A. Kruisinga, LL.M. is Associate Professor of Commercial Law at the Molengraaff Institute for Private Law of Utrecht University in the Netherlands.
Journal European Business Law Review
Online ISSN 0959-6941
Print ISSN 0959-6941

A Psychology of Choice of Laws

Wed, 22 May 2013 12:00:00 +0000

There is certainly a lot of choice going around in the market for contract law. This is a good thing, since choice is key to self-determination and may help improve our laws. Yet there may be such a thing as choice overload, and the introduction of the Common European Sales Law is a timely reminder to consider its effect for the market for contract law. This article does just that. It explains what choice overload is, why it comes about, and what can be done to ameliorate its effects. The conclusion is that CESL will not cause choice overload but will not help in that respect either. Given the prospect of overload, this article evaluates the possible solutions to the problem, and advances the argument in favour of categorizing laws in order to help decision-makers to choose prudently.

Content Type Journal Article
Part of Volume 24, Issue 3
Authors
- Gary Low, Assistant Professor of Law, Singapore Management University.
Journal European Business Law Review
Online ISSN 0959-6941
Print ISSN 0959-6941

Promoting Uniform Sales Law

Wed, 22 May 2013 12:00:00 +0000

The success of the CISG as a uniform law convention has stirred the desire for subsequent projects. Now, the draft of a Common European Sales Law looms as a competing instrument at the regional level, which, although not yet final in form, obviously attempts to follow to some extent in the footsteps of the CISG in scope, structure and substance. To this extent, however, the experience of the latter cannot simply be transferred to the new instrument, as the CISG has thrived in a particular formative context that would be markedly different under the CESL. This article takes a look at the contribution of case law and academic studies to the practical success of the instruments, as well as the potential role of contract law practice and university legal education.

Content Type Journal Article
Part of Volume 24, Issue 3
Authors
- Olaf Meyer, Senior Research Fellow, Centre of European Law.
Journal European Business Law Review
Online ISSN 0959-6941
Print ISSN 0959-6941