Supranational Codification of Private Law in Europe and Its Significance for Third States

Abstract

Throughout the last 200 years, private law has been connected to national sovereignty, and there were times when legal scholars were eager to point out the particular national brand of their respective system of private law and its content as a kind of national heritage (Cf. Legrand, Pierre. 1999. Fragments on Law-as-Culture, 77 and 104. Deventer: Tjeenk Willink; idem. 1998. Counterpoint: Law is also Culture. In The Unification of International Commercial Law, ed. Franco Ferrari, 245 and 250 et sEq. Baden-Baden: Nomos; Samuel, Geoffrey. 2000. English Private Law in the Context of the Codes. In The Harmonisation of European Private Law, eds. Marc van Hoecke and François Ost, 47 et sEq. Oxford/Portland Oregon: Hart Publishing.). If that link can be considered as a correct assessment at all, it is limited to a fairly recent period of legal history. Roman law, as enshrined in the corpus iuris civilis was authored by jurists from various parts of the Empire. In the Middle Ages the ius commune was regarded, in many parts of Europe, as a subsidiary source of law supplementing the local statutes and customs, or at least as a common reference which provided guidance for the framing of legal concepts and classifications and has served as a platform of understanding for legal scholars across the continent (Nève, Paul. 1997. (Europäisches) ius commune und (nationales) gemeines Recht: Verwechslung von Begriffen?. In Festschrift für Karl Kroeschell zum 70. Geburtstag, eds. Gerhard Köbler and Hermann Nehlsen, 871 et sEq. München: Beck.).

In the twentieth century the sceptical view that “commercial law is not folklore” (Lando, Ole. 1978. Unfair Contract Clauses and a European Uniform Commercial Code. In New Perspectives for a Common Law of Europe, ed. Mauro Cappelletti, 267 at 285. Leiden/London/Boston: Sijthoff.) has gained ground. It has been underpinned by a series of further developments. Various countries have adopted foreign codes although there was little cultural proximity between them and the country of origin. Thus, the Turkish Republic took over the Swiss Code of Obligations, while Japan, Russia, China and Korea looked to the German Civil Code as a model. The impact of the French Civil code in large parts of Latin America is well known. Moreover, ever since the late nineteenth century, a strong need for the cross-border unification of private law has brought about numerous international conventions in the fields of intellectual property, the law of transport, maritime law, civil aviation, payment and securities, and the sale of goods. The globalization of the late twentieth century, the opening of markets and worldwide communication have further strengthened the belief of the international community of both governments and business circles that the national character of private law, instead of reflecting the particular character of a country, is rather a barrier to global trade and welfare.

The European integration has given further momentum to this development. An initiative of European academics started in the 1980s has grown into a broad movement and has turned comparative law from theoretical analysis into an inspiration of legislation. In October 2011 the European Commission formally submitted a proposal for a Common European Sales Law, as will be outlined in Sect. 3 of this paper. For a better understanding, it is however necessary to first take a look at the legislative bases and types of Union legislation, below 2. Some concluding remarks will speculate on what this could mean for third countries, e.g. in Asia, see below 4.