Wednesday, 6 June 2012

Between Scylla and Charybdis - Secola 2012 on principles and rules

Last Friday and Saturday, the majority of authors of this blog attended the Secola conference on 'Principles and specific rules in European contract law'. In the beautiful setting of the Aula Magna of the University of Messina (Sicily), different aspects of this theme were discussed. 

The speakers posed some intriguing questions on the role of principles in European private law and the possible future development of such principles, for instance in the context of the application of a Common European Sales Law (CESL).  These included:
- the concept of freedom of contract and its limits (Salvatore Patti)
- the role of the principle of proportionality in European private law - given its flexible nature, how can this principle facilitate access to the internal market and how does it affect the balancing of interests in private legal disputes? (Gary Low and Caroline Cauffman)
- the role of the principle of effectiveness - can Article 47 of the EU Charter of Fundamental Rights be applied to the review of national legal remedies, in order to upgrade remedies for the breach of EU law via a consistent interpretation of national laws? (Norbert Reich)
- general principles derived from the acquis communautaire (Elise Poillot)
- the role of principles in codification processes - to what extent does the proposed CESL require judges to make law and, in particular, do we expect the Court of Justice of the EU to fill in all blanks within CESL's scope? (Simon Whittaker)
- principles of law in soft law instruments, such as PECL and Unidroit (Jan Kleinheisterkamp)
- principles and rules - following a Dworkinian approach, to what extent can principles of European private law yield specific rules and legitimize the solutions to 'hard cases'? (Pietro Sirena and Yehuda Adar); in my opinion a very interesting approach, though it raises many questions (some of which I also struggled with myself in a paper prepared for last year's Utrecht conference on principles and law)
- the principle of efficiency and European contract law - why should the principle of efficiency be followed when drafting and applying measures of European contract law, such as the CESL? (Horst Eidenmüller); a perspective that raised eyebrows among some of my Amsterdam colleagues who attended the conference, for (social justice) reasons explained (to a certain extent) here and here
- unjustified enrichment (Carlos Ignacio Gómez Igüerre)
- good faith and reasonableness - submitting that both concepts match with a solidaristic view of (European) contract law, how can they be made operative in, for instance, the case law of the Court of Justice of the EU? (Emanuela Navarretta)

The proceedings of the conference are planned to be published in Secola's series of conference books.

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