CENTRE FOR THE STUDY OF EUROPEAN CONTRACT LAW ANNUAL REPORT Universiteit van Amsterdam

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3 CENTRE FOR THE STUDY OF EUROPEAN CONTRACT LAW ANNUAL REPORT 2012 Universiteit van Amsterdam

4 CENTRE FOR THE STUDY OF EUROPEAN CONTRACT LAW Postal address: P.O. Box BA Amsterdam Visitors address: Oudemanhuispoort CN Amsterdam tel: + 31 (0) fax: + 31 (0) y.terhorst@uva.nl

5 ANNUAL REPORT Introduction 3 2. CSECL s aim and research theme 5 3. Research group 9 4. Organisation Joint research projects & collaborations Teaching PhD research Publications Societal impact Conferences & seminars Invited lectures Other research activities Funds. 85

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7 1. Introduction The year 2012 was a year with many good results. The researchers of the Centre for the Study of European Contract Law (CSECL) published several A publications in leading international journals. Moreover, our researchers published five books, i.e. The Role of Legal Translation in Legal Harmonization, edited by Jaap Baaij; The Future of European Property Law, edited by Arthur Salomons et al.; Digital Consumers and the Law - Towards a Cohesive European Framework, edited by Marco Loos, Chantal Mak et al.; Principles of European law: Mandate Contracts, by Marco Loos and Odavia Bueno Díaz; and The service provider's duty to warn about defects caused by third parties: A case study on the precontractual and contractual duty to warn in English, German and Dutch law and in the Draft Common Frame of Reference, by Joasia Luzak. Furthermore, the CSECL organized three seminars. The topics were Private law and nationalism, Naar een gemeenschappelijk Europees Kooprecht voor de Europese Unie and (in cooperation with ACIL en ACELG) Postnational Rulemaking between Authority and Autonomy. As to policy oriented research with an important societal impact, researchers of the CESL produced two reports for the European Parliament, one on Remedies for buyers in case of contracts for the supply of digital content (by Marco Loos and Chantal Mak) and another on Unfair Contract terms in B2C Contracts (by Martijn Hesselink and Marco Loos). Finally, in 2012 one public PhD defense took place. Guido Comparato successfully defended his thesis on Nationalism and Private Law in Europe. Amsterdam, March 2013 Martijn W. Hesselink Director, Centre for the Study of European Contract Law 3

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9 2. CSECL s mission and research themes Mission The Centre for the Study of European Contract Law (CSECL) was founded in January 2006 and forms part of the University of Amsterdam s Research Priority Area Private and Public European Law. The Centre aims to promote high-quality research and education in the area of European contract law. Its research programme focuses on the interplay between the European, national and international laws of contract. Contract law is understood in a broad sense, namely the law governing economic transactions in Europe. General research theme The general research theme of our programme is European contract law. We understand contract law here in a wide and functional sense, i.e. the law of economic transactions. This includes both commercial and consumer contracts, and both general and specific contract law. It also includes the relevant aspects of general patrimonial law and the general law of obligations. Moreover, it includes important aspects of property law and, albeit to a lesser extent, of tort law. Finally, conflict of law rules are also included. European law is understood here as the law that is applicable in the European legal space, i.e. the interrelated laws produced by law makers operating at the national level (e.g. the civil code, the common law), the European level (the acquis communautaire) and the international level (e.g. the United Nations Convention on Contracts for the International Sale of Goods). Finally, law is also understood here in a broad sense including not only soft law but also the context in which the black letter rules operate. As a result, research will often be multi-disciplinary combining insights from comparative legal analysis, legal theory, political theory, economic analysis and other related fields. 5

10 Specific themes Over the past two decades, European private law has developed into an established field of academic research. Within that field we aim at innovative specific lines of research. In , the focus will be, in particular, on three specific themes, i.e. 1) EU private law integration and its effects on national private laws; 2) property, publicity, priority; and 3) the legitimacy of postnational private law. 1. EU private law integration and its effects on national private laws (directed by Aukje van Hoek and Marco Loos) This theme deals with the impact of EU law on the national private laws of the Member States. It addresses the interaction between national and EU private law, with regard both to secondary EU law (i.e. directives and regulations) and primary EU law (i.e. the founding Treaties), in particular the internal market dimension. The focus will be mainly, though not exclusively, on the specific areas of consumer law and private international law. Specific subjects of research include: the divergent interpretation of general clauses and open-textured concepts in contract law, caused in part by the multilingual character of European Union law; the spill-over effects of specific directives and regulations within Member State law; the (non-)compliance of national courts with rulings of the CJEU; the coordination between national private law systems through internal market law and EU private international law; and the consequences of harmonization for the systematic character of private law and for the ideal of codification. For this research theme, use will be made in the first place of classical legal analysis and comparative legal research, but also of insights from (consumer-) behavioural law & economics and law & language. This theme includes, in particular, the work of Jaap Baaij, Hugh Beale, Diana 6

11 Dankers-Hagenaars, Bram Duivenvoorde, Aukje van Hoek, Jeroen Kortmann, Candida Leone, Marco Loos, Joasia Luzak, Sacha Tamboer and Gerard de Vries. 2. Property, publicity, priority (directed by Arthur Salomons) As property law forms no part of the proposed Common European Sales Law, the debate on the harmonization of that part of patrimonial law focuses on the question whether incorporation of proprietary topics at a later stage or in a subsequent or other harmonisation instrument would be a viable and desirable possibility. Within this context, we will focus, in particular, on two topics: 1) justification for proprietary entitlements (acquisition of proprietary entitlements; the shape and extent of the protection of the titleholder and the justification of these entitlements and their protection; and patrimonial responsibility and priority); and 2) apparent entitlement (publicity systems, clearing and settlement; publicity and priority; and good faith purchase protection). The research within this theme will be conducted both from both doctrinal, comparative and theoretical perspectives. The first subtheme will include the work of Arthur Salomons, Selma de Groot, and Rolef de Weijs, the second that of Dewi Hamwijk and Arthur Salomons. 3. The legitimacy of postnational private law (directed by Martijn Hesselink) This research theme follows up on a fruitful line of research, running under the research programme, entitled European contract law, social justice and democracy. Moreover, the present theme is also closely related, substantially and personally, to the joint research project conducted by the CSECL together with the ACIL and the ACELG 7

12 (directed by Deirdre Curtin, Martijn Hesselink and André Nollkaemper) on The Architecture of Postnational Rulemaking. Within this theme, we will explore the political-philosophical foundations of postnational private law, by analysing the implications of leading theories of social justice for fundamental questions concerning the Europeanisation and globalisation of private law. We will address the normative question of legitimacy from the perspectives of both law making (democracy) and outcomes (justice). The question is whether there is anything special about postnational private law in this respect: do the private and postnational law dimensions make a difference from a legitimacy perspective? In particular, we will focus our attention on: the legitimatory potential of fundamental rights and general principles; the legitimacy of expert involvement in the shaping of European private law; the geographical locus where private law should be made (national, European or global); the normative analysis of clashes between different legal orders and legitimation (and its limits) through party autonomy (freedom of contract, choice of law, optional instruments, non-mandatory rules). In this context, thorough reflection on fundamental questions concerning methodology plays an important role, not only as an indispensable preliminary to high quality research, but also as an object of research, for example in relation to methods of legal comparison and to the idea of a developing common European legal method. This theme includes, in particular, the work of Marija Bartl, Martijn Hesselink, Josse Klijnsma, Chantal Mak, Marieke Oderkerk and Lyn Tjon Soei Len. 8

13 3. Research group The research staff consisted in 2012 of 12,39 full time equivalent (fte), of which 4,33 fte was occupied by PhD candidates. Director Prof. dr Martijn Hesselink Coordinator Dr Chantal Mak Management Assistant Yvonne ter Horst LLM 9

14 SENIOR RESEARCHERS Prof. Hugh Beale Contract (including European contract law) and commercial law. Dr Odavia Bueno Díaz European contract law; franchising contracts; empirical method. Dr drs Diana Dankers-Hagenaars The borderline of private and public law; question of codification; contract law. Prof. dr Martijn Hesselink European private law, private law theory and legal methodology. Prof. dr Aukje van Hoek Private International Law and Civil Procedure. Prof. dr Jeroen Kortmann European tort law. Prof. dr Marco Loos Contract law, consumer law and European private law. Dr Chantal Mak European contract law, the constitutionalisation of this field of law and the role of the judiciary in the harmonisation process. Dr drs Marieke Oderkerk General theory and methodology of comparative law, international family law. 10

15 Prof. dr Arthur Salomons Dutch and European property law. Dr Gerard de Vries Contract law. JUNIOR RESEARCHERS Jaap Baaij LLM Legal translation, legal interpretation, comparative law and philosophy of language. Olga Falgueras del Alamo LLM Harmonization of Insolvency Law at EU level. Dr Joasia Luzak Contract law, consumer law, consumer behaviour and European private law. Dr Rolef de Weijs European Property Law and Insolvency Law. 11

16 POST-DOCTORAL RESEARCHERS Marija Bartl LLM Legitimacy in postnational constellations; the market-re-embedding role of private law in the postnational setting, and its link to the democracy in private law debate; the constitutional aspects of (European) private law, and in particular the correlation between social justice and democracy in European Private Law. Dewi Hamwijk LLM The principle of publicity with regard to movable tangible assets. Lyn Tjon Soei Len LLM Private law theory broadly, and theoretical questions concerning the relationship between theories of justice and contract (private) law and questions concerning private autonomy and postnational lawmaking specifically. PhD CANDIDATES Bram Duivenvoorde LLM The notion of the average consumer in European consumer law Selma de Groot LLM The interplay between the security transfer and the right of pledge 12

17 Josse Klijnsma LLM SMEs in European Contract Law: A Rawlsian Perspective Candida Leone LLM Unfair terms in labour contracts Rafal Manko LLM Culture of Private Law in Poland: from Socialism to Europeanisation Sacha Tamboer LLM De klachtplicht bij non-conformiteit EXTERNAL FELLOWS Prof. dr Giuseppe Dari-Mattiacci The economic analysis of fundamental areas of the law, such as tort, contract, property and litigation, as well as the evolution of law and legal institutions, ancient law, and slavery. Prof. dr drs Matthias Haentjens Harmonisation of Securities Law, Custody and Transfer of Securities in European Private Law. 13

18 Dr Kai Purnhagen LL.M. The interplay of law and regulation on regulated markets in Europe, in particluar the role of systematisation within the emerging law of EU risk regulation. Dr Bas van Zelst (Inter)national commercial arbitration, European consumer law, European private law. CSECL staff in fte 2012 Professor 2,09 (Senior) University Lecturer 3,30 PhD-student 4,33 Post-doc and researcher 2,67 Total research staff 12,39 Administrative staff 0,83 Total staff 13,22 14

19 4. Organisation Management Prof. dr Martijn W. Hesselink is Director of the Centre for the Study of European Contract Law (CSECL). He is assisted by Coordinator dr Chantal Mak and Management Assistant Yvonne ter Horst LLM. The specific (three) themes within the research programme are led by the senior researchers prof. dr Arthur Salomons, prof. dr Marco Loos, prof. dr Aukje van Hoek and prof. dr Martijn Hesselink. The CSECL consists of a diverse research group where researchers interact with other researchers from different backgrounds in terms of nationality, gender, education et cetera. By creating attractive positions for assistant professors (more research time), occasionally in combination with the possibility of a tenure track to become associate professor, the CSECL has managed to attract and retain talented researchers. We leave as much autonomy as possible to individual researchers in expressing their creativity. It is for them to develop their own research projects, to distribute their research time over different activities such as writing more papers, reports for European institutions, organising conferences, editing volumes et cetera as long as they meet the publication requirements listed in the research programme. The CSECL actively searches for talented PhD students. All PhD positions are widely advertised in the CSECL s international networks. PhD students spend some time at a foreign university (mostly at Harvard, Columbia, NYU and the MPI in Hamburg). They are stimulated to develop their own research profiles which are visibly distinct from that of the research leaders. All researchers, including PhD students, participate in the Ius Commune research school. Moreover, all researchers are facilitated to excel in their work by showing confidence in their capacities to be innovative while at the same 15

20 time showing a real interest in their ideas and projects. Weekly meetings The Centre organises weekly meetings. These are dedicated, in turn, to paper presentations by invited leading scholars from across the world (the biweekly public CSECL seminars ) and presentation and discussion of work in progress of one of the group members ( internal seminars ). In addition, monthly lunch meetings are dedicated to the discussion of recent developments in legislation, case law and literature; each topic is introduced by one of the researchers. Interaction with teaching The Master s programme in European Private Law is directed and coordinated and, for the most part, taught by members of our research group. Students in that programme are invited to participate in CSECL seminars, conferences, and, where possible, research. 16

21 5. Joint research projects & collaborations Several specific research projects by members of the CSECL research group are carried out within the framework of one or more international collaborations. The aim is to intensify and extend international collaboration and exchange. Advising the European Commission and Parliament The CSECL advises the European Commission and Parliament, which is policy oriented research with an important societal impact: EC Expert Group on a Common Frame of Reference in the area of European Contract Law Prof. dr Martijn W. Hesselink and prof. dr Hugh Beale were appointed by the European Commission as members of an Expert Group on a Common Frame of Reference in the area of European contract law. The group's task was to assist the Commission in the preparation of a proposal for a Common Frame of Reference in the area of European contract law, including consumer and business contract law, and in particular in: selecting those parts of the Draft Common Frame of Reference which are of direct or indirect relevance to contract law; and restructuring, revising and supplementing the selected contents of the Draft Common Frame of Reference, taking also into consideration other research work conducted in this area as well as the Union acquis. On 3 May 2011, after one year's work, the Expert Group published its report A European contract law for consumers and businesses: Publication of the results of the feasibility study carried out by the Expert Group on European contract law for stakeholders' and legal practitioners' feedback which became the basis for the European Commission's 17

22 proposal, published a few months later, for a regulation on Common European Sales Law. European Parliament framework contract European contract law, including consumer law In April 2010 the CSECL was assigned a tender on European contract law, including consumer law, funded by the European Parliament. Members of the research group provide their expertise on European contract law to the Committee on Legal Affairs of the European Parliament in a form of standard briefing notes and ad hoc briefing papers. This should strengthen the Committee s knowledge on the subject and enable her to respond to proposals made by the European Commission and provide a solid basis for some of the Committee s own initiatives. The framework contract will run until 31 December In 2012 two ad hoc briefing papers were written for the European Parliament. One paper on Remedies for buyers in case of contracts for the supply of digital content, by Prof. Marco Loos and Dr Chantal Mak and the other on Unfair Contract terms in B2C Contracts by Prof. Martijn Hesselink and Prof. Marco Loos. During the Workshop Common European Sales Law organized by the European Parliament the papers were presented respectively on 19 June and 31 May. The Common Core of European private Law ( Trento Project ) The aim of this project is to establish common rules with respect to certain fields of private law of the different members of the European Union, although their methods of research are totally different. CSECL is involved in the following initiatives: Common Core: Interpretation of Commercial Contracts In 2010 Jaap Baaij initiated and launched a new comparative legal study for the Common Core of European Private Law. It is the most 18

23 comprehensive comparative study on interpretation methods to date. In 2011 twenty-four legal scholars from fifteen European legal systems and South-Africa joined as national reporters. In 2011 Jaap and his co-editors, Laura Macgregor and David Cabbrelli, from the University of Edinburgh, meticulously crafted a Questionnaire on the basis of which the national reporters drafted their draft reports. These reports will be reviewed and revised in 2012, after which the editors will commence their comparative analyses. The full manuscript is expected to be finalized late Common Core: Good Morals In 2012, Chantal Mak together with Aurelia Colombi Ciacchi and Zeeshan Mansoor (Groningen Centre for Law and Governance) initiated a new comparative legal study for the Common Core project on the topic of good morals. A questionnaire was drafted and set out among reporters in nearly all EU Member States. The national reporters will send in their answers mid-2013 and finalisation of the study is foreseen to take place in European Law Institute The European Law Institute, founded in June 2011 as an entirely independent organisation, aims to improve the quality of European law, understood in the broadest sense. It seeks to initiate, conduct and facilitate research, to make recommendations, and to provide practical guidance in the field of European legal development. Several members of the CSECL have become members of the European Law Institute, after the conclusion of the Co-PECL project. The Study Group on Social Justice in European Private Law Within the Social Justice Group CSECL researchers co-operate with researchers of the Paris I, the London School of Economics, the European 19

24 University Institute (Florence), the University of Helsinki, ZERP (Bremen), the Karl-Franzens-Universität Graz and the University of Catania. This group conducts common research of social justice and regulatory legitimacy within the European Contract Law. The network on Private Law Theory The PLT initiative aims to constitute a network of scholars reflecting the theoretical foundations and future developments of private law. The idea was born spontaneously in 2009 among a transnational group of scholars. PLT will build a forum for cross-cultural brainstorming what private law could mean in the 21st century. PLT embraces different theoretical backgrounds (liberal theory, social justice theory, deliberative theory, systems theory, economic analysis, critical theory, deconstruction, etc.) and different fields of law (contract law, property law, comparative law, competition law, corporate law, IP law, etc.). The Ius Commune Research School The CSECL cooperates with the Faculties of Law of the University of Utrecht, the University of Maastricht, the Catholic University Leuven (Belgium) and with individual researchers of the University Stellenbosch (South Africa), the University of Edinburg (Scotland), the Free University in Amsterdam, Tilburg University and the Erasmus University Rotterdam. Together with the University of Maastricht - Prof. Jan Smits the CSECL conducted the project National resistance against Europeanisation of private law: a multi-disciplinary investigation into the roles of nationalist ideology and the behaviour of firms and consumers. The project was funded by the Hague Institute for the Internalisation of law (HiiL), sponsored by The Netherlands Organisation for Scientific Research (NWO). It started in August 2008 and explored the resistance that exists against European integration in the field of private law by looking at two reasons for such 20

25 resistance: nationalist ideology and the behaviour of firms and consumers. It thus proposes an interdisciplinary approach in trying to answer one of the most fundamental questions about unification of (private) law: what explains national resistance against unification? In particular, this project focuses on the role of two particular factors which can explain national resistance, i.e. nationalist ideology (expressed in the guise of cultural and economic arguments) and the behaviour of the actors to be affected by legal unification. The answer to this question provides fundamental insights into the best way in which an effective European integration of law is to be achieved and what the role of the European and national legislator in this respect should be. PhD student Guido Comparato joined the CSECL to write a thesis about the subject; Gary Low was a PhD student at the Maastricht team. Guido finished his manuscript in September 2011 and then took up a postdoc position in a research project on European private law of prof. Hans Micklitz (European University Institute, Fiesole). Guido s manuscript was approved by his supervisors at the end of The PhD defense successfully took place on 23 October CSECL is partner of the Finnish Centre of Excellence in the Foundations of European Law and Polity Research. Furthermore, there are numerous international collaborations on an individual basis with scholars from many leading European and American universities including Harvard, EUI, LSE, Oxford and Sciences Po. Locally, the CSECL collaborates with other academics outside the Faculty of Law, especially with the Amsterdam Centre for Law and Economics (ACLE), through joint research projects and seminars. 21

26 Inside the Faculty CSECL participates in the Research Priority Area (RPA) European Private and Public Law, launched formally in The RPA includes three research groups, each with their own specific research programmes and research centres (the Amsterdam Centre for European Law and Governance (ACELG), the Amsterdam Centre for Tax Law (ACTL) and the Centre for the Study of European Contract Law (CSECL)). Although there are no common research activities planned for the area as a whole, there have been important collaborations between certain researchers from different groups. The most prominent example is the project The Architecture of Post-National Rulemaking: Views from Public International Law, European Public Law and European Private Law that is directed by Deirdre Curtin (ACELG) and Martijn Hesselink (CSECL) together with André Nollkaemper (Public International Law) and which started on 1 January The project aims to provide new reflections and insights into the discussion on the legitimacy of post-national rulemaking starting from three distinct but in this project uniquely combined legal perspectives. The main objective is to relate perspectives from public international law, European public law and European private law on postnational rulemaking and to examine through a new lens any legitimacy concerns that may arise from the new arrangements. The project will further develop a normative framework for the analysis of post-national rulemaking applicable across all three areas. This will require theoretical work on the concepts of rulemaking and legitimacy starting from the perspectives of the three different areas of law. After some time having been spent on reconciling concepts and defining future activities, the project in 2011 experienced a powerful official start sign with the organisation of a workshop entitled Framing and Taming Postnational Rulemaking. Views from Public International Law, European Public Law and European Private Law. The event, besides showing that the project s theme attracts intense interest, resulted in the formulation of a clear mission statement, available on the project website that was also launched in In parallel with the move from the organisational to the content 22

27 exemplified by the workshop, the regular project meetings focussed on the discussion of project member s papers and resulted in the publication of working papers and regular papers. Another successful international workshop took place in September 2012 and brought together many distinguished legal scholars from different countries and legal backgrounds to discuss Postnational Rulemaking between Authority and Autonomy. Furthermore, an Architecture Dialogues series was set up, in which leading scholars in the field are invited to enter into a dialogue with the project members and reflect on issues pertaining to the project's theme. The first installments of the Dialogues series took place in the second half of 2012 and attracted a diverse audience of scholars with expertise in international, European and private law. The project meetings continued to provide space for the discussion of project members papers. 23

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29 6. Teaching Private law in Europe has undergone rapid transformation over the last two decades. From being a branch of law that was hardly affected by European Community (EC) legislation, it has become the object of a multitude of harmonisation measures, to the point that the idea of a European civil code is now a priority on the political agenda. This development has given rise to a growing demand within the legal profession, within national and EC institutions and in academic research for lawyers with a thorough understanding of both existing European private law and the ongoing Europeanisation process and its dynamics. The Master's programme in European Private Law gives students a thorough understanding of this developing multilevel system of private law in Europe. Relevant insights from other disciplines such as Economics and Political Science are integrated into the discussion of legal questions, thereby broadening and deepening the debate. The Master s programme in European Private Law is directed and coordinated and, for the most part, taught by members of our research group. 25

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31 7. PhD research The Centre for the Study of European Contract Law supervises PhD students and so-called JUDOOZ. PhD students are appointed during three years and they have no teaching obligation, unless this is relevant to their research. JUDOOZ are Junior researchers who are appointed during six years and who teach 40% and conduct PhD research 60% of their appointment. PhD students and JUDOOZ are supervised by a supervisor and co-supervisor. They receive training offered by the Ius Commune research school and/or the Faculty of Law. In addition they attend relevant conferences and the CSECL seminars. The CSECL actively searches for talented PhD students. All PhD positions are widely advertised in the CSECL s international networks. PhD students usually spend some time at a foreign university (mostly at Harvard, Columbia, NYU and the MPI in Hamburg). They are stimulated to develop their own research profiles which are visibly distinct from that of the research leaders. On 23 October 2012 at 14:00 Guido Comparato defended his PhD thesis Nationalism and Private Law in Europe in the Agnietenkapel, Oudezijds Voorburgwal 231, Amsterdam. Supervisor: Prof. dr M.W. Hesselink; Cosupervisor: Dr C. Mak. In 2012 the Centre for the Study of European Contract Law supervised 9 PhD students, of whom 2 are JUDOOZ (Baaij and Tamboer). 2 PhD students whose PhD appointment has expired (De Groot and Manko) are working on their thesis and it is expected that they will finish it soon. During the year 3 PhD appointments were turned into respectively 1 University Lecturer appointment (Baaij), and 2 post-doctoral appointments 27