Source of Concern or Room for Experimentation? Private Autonomy in the Development of Alternative Regulation in German and Dutch Private Law

State actors increasingly involve private parties in the development of binding alternative regulation in private law. This involvement may be welcomed as an exercise of parties’ rights, but private parties may simultaneously limit other parties’ rights. Consequently, state actors have sought to control the influence of private parties particularly in the German legal order, where the constitutional principle of private autonomy is interpreted so as to require the protection of weaker private parties from Fremdbestimmung (hetero-determination) coming from structurally much more powerful private parties. In comparison, while Dutch law generally recognizes principles of private autonomy and the need to protect parties from heterodetermination (‘heteronomie’), so far this has not permeated the Dutch discussion on alternative regulation. The idea of hetero-determination may serve as a starting point for a more active and consistent approach towards the development and limitation of alternative regulation in the Dutch legal order.</jats:p

The proposal for a Common European Sales Law:How its drafting process might affect the optional instrument’s added value and its success

Although article 114 TFEU leaves considerable room for discretion for the legislator to determine the impact of future legislation on the internal market, it is not certain whether optional harmonisation falls within this competence. The discretion of the Union legislature has resulted in consultations and an impact assessment that seem to be geared towards the swift adoption of the CESL. However, the CESL is to be an optional instrument, and its success depends on contract parties' voluntary adoption. Consequently, identifying the needs and preferences of legal practice is essential. If the drafters take these needs and preferences into account, this may help them to draft an instrument that provides a clear added value to contract parties, which may induce these parties to opt for the CESL.A better use of consultations and impact assessments could have contributed to identifying the needs and preferences of legal practice. In addition, a more functional approach that would take legal practice as a starting point could contribute to the added value of the CESL. A starting point for a functional approach could be often-used boilerplate clauses. Presently, the interpretation of these clauses in cross-border cases may lead to "surprises" for contract parties. Possibly, the CESL could provide a clear added value by providing a framework for the consistent interpretation of boilerplate clauses throughout the Union. However, a closer look at the draft CESL reveals that such certainty will not be provided. Further, questions on the competence of the CJEU in the interpretation of the CESL arise. Some more general conclusions on the possible future use of optional harmonisation will also be drawn

The Hidden Potential of Regulatory Impact Assessments (RIAs) in the Private Law Acquis

This article argues that regulatory impact assessments (RIAs) are an important method to improve the private law acquis that are currently overlooked. Many problems of unpredictability and inconsistency can be traced to poor regulatory choices in the private law acquis, including the overenthusiastic use of blanket clauses and the lack of coordination in the development of the acquis. RIAs are a very suitable means to prompt the legislator to reconsider these choices. The use of RIAs however currently shows severe shortcomings. Particularly, RIAs frequently contain doubtful and unsubstantiated assumptions, and they do not neutrally assess the benefits and detriments of all possible ways to develop the acquis. These shortcomings should be addressed if RIAs are to contribute to the quality of the private law acquis. A more thorough evaluation of past and future measures such as minimum and maximum harmonization, guidance, databases, and self-regulation and more coordination would contribute to the predictability and consistency of the private law acquis

De ontwikkeling van het privaatrecht in een meergelaagde rechtsorde:inzichten van multilevel governance

Perspectives of multilevel governance are used to contrast the EU legal order to the Dutch legal order. The characteristics of the EU multilevel legal order complicate the development of private law. The article compares the EU multilevel legal order to the traditional nation state and explains what consequences these differences have for the development of private law