Published by De Gruyter

Volume 16 Issue 4

Issue of European Review of Contract Law

Contents
Journal Overview

Frontmatter

Publicly Available December 3, 2020

Frontmatter

Page range: I-IV

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December 4, 2020

The Principle of Directive-Compliant Development of the Law and the Contra Legem Limit

Thomas M.J. Möllers

Page range: 465-488

Abstract

The Europeanisation of domestic law calls for a classical methodology to ‘update’ the established traditions of the law. The relationship between European directives and national law is difficult, since directives do apply, but European legal texts need to be implemented into national law. Whilst directives are not binding on private individuals, there is no direct third-party effect, but only an ‘indirect effect’. This effect is influenced by the stipulations of the ECJ, but is ultimately determined in accordance with methodical principles of national law. The ECJ uses a broad term of interpretation of the law. In contrast, in German and Austrian legal methodology the wording of a provision defines the dividing line between interpretation and further development of the law. The article reveals how legal scholars and the case-law have gradually shown in recent decades a greater willingness to shift from a narrow, traditional boundary of permissible development of the law to a modern line of case-law regarding the boundary of directive-compliant, permissible development of the law.

December 4, 2020

Quo Vadis Contract Management?

Conceptual Challenges Arising from Contract Automation

Ralph Schuhmann

Page range: 489-510

Abstract

The progressive automation of management and production processes is increasingly affecting the way contracts are handled. Although for contract automation more concepts are currently being discussed than actually applied, the outlines of what will be possible in the future have become apparent. They raise the questions of what challenges contract handling will have to cope with in the future and whether the concept of contract lifecycle management (CLM) provides a suitable framework for this task. To give answers to these questions, the present article analyses the impact of the pull-effects of new forms of business and the push-effects of technology on the function, content, representation and usage of contracts. The results indicate that these developments entail major changes in the way contracts are handled and that the CLM concept will only be able to address them with considerable adjustments.

December 4, 2020

Breaching the Interpretative Wall between Private and Public Commercial Contracts

Scandinavian Case Law on Fundamental Labour Standard Clauses in Public Contracts

Maria Edith Lindholm Gausdal

Page range: 511-532

Abstract

From a purely contractual perspective, this article reflects upon labour standard clauses with the objective to ensure that the fundamental ILO conventions and the International Bill of Human Rights are complied with throughout global value chains in respectively business-to-business (private), and public commercial contracts. The clauses are in both settings based widely on the same standards; however scholarship on the two types of contracts has been quite separate. The article reviews some Scandinavian case law concerning labour standard clauses and procurement regulation. It finds that contractual argumentation supported the outcome in these cases, isolates this argumentation, and reflects on whether contractual perspectives on the public contract might inspire current research on private contracts. It finally argues that an actual fusion is already taking place, wherefore contract lawyers may play an important role as to whether ‘the interpretative wall’ should be breached, or whether this is not feasible due to the distinctive characteristics of each contract.

EU Legislation

December 4, 2020

European Union Legislation and Actions

Rossella Delfino

Page range: 533-537

EU Case Law

December 4, 2020

Dziubak Is a Fundamentally Wrong Decision: Superficial Reasoning, Disrespectful of National Courts, Lowers the Level of Consumer Protection

Judgment of the Court of Justice (Third Chamber) of 3 October 2019, Kamil Dziubak, Justyna Dziubak v Raiffeisen Bank International AG, (Case 260/18)

Fabrizio Esposito

Page range: 538-551

Book Review

December 4, 2020

Marta Cantero Gamito – Hans-W. Micklitz (eds), The Role of the EU in Transnational Legal Ordering: Standards, Contracts and Codes (Cheltenham: Edward Elgar, 2020) 352 pp, ISBN: 978 1 78811 840 8

Gralf-Peter Calliess, Nicholas Mouttotos

Page range: 552-556

December 4, 2020

Johannes W. Flume, Marktaustausch (Tübingen: Mohr Siebeck, 2019) 304 pp, ISBN: 978-3-16-156898-5

Klaus Ulrich Schmolke

Page range: 557-561

About this journal

This Journal deals with contract law and serves as a pan-European platform for discussion and analysis. The concept of a European Contract Law is still rather recent: the phrase was first coined in the 1990s. Since the early 2000s when this journal was created, European Contract Law has come to encompass an increasingly comprehensive body of law. There were three driving forces behind this development: the EC harmonisation of laws in the area of the internal market, a generally increased interest in comparative law discussions in contract law, and the European Commission’s Communication on European Contract Law, the Commission’s Action Plan and the Common Frame of Reference process. These developments brought about a changed climate of discussion. The foundations of contract law, examined from many perspectives and in view of various national legal systems and an increasing number of disciplines, are currently being discussed in great detail in the European arena. In 10 years contract law may be the first area of European private law to be regulated in a fully fleshed out European Code.

European Contract Law comprises diverse areas of the law such as sales, standard contract terms, distribution chains, marketing practices, research and development agreements, contract law copyright aspects, financial and investment services contracts, insurance contracts and e-commerce as well as non-discrimination within and beyond labour law and more generally, important aspects of labour contracts and other symbiotic contracts.

The importance and breadth of the field and the methods and questions involved are such that ERCL has established itself as the specialised European journal in this area. Since 2004 the standard of information and discussions on this platform have been consolidated: ERCL discusses the body of law in three sections: articles, case law, and literature on EC Contract Law. This takes place mainly in book reviews and, in addition, contains short sections on the most recent EC legislation, sectoral developments, national developments and other news. The Review focuses on existing law at the EC level and all rules influencing the formation, content and execution of contracts from default rules to regulation, from marketing aspects to the content of contracts, from consumer (and also labour) law to general contract law. The Review is open to a variety of approaches and provides the opportunity to read traditional 'dogmatic' explanations of the upcoming and existing law, assessments through comparative law studies as well as economic analysis and discussions of the philosophical foundations and major structural features. The Review is and has been the site of intense discussion of proposals for codification or, more generally, systemisation and comprehensive development of contract law at the EC level. The European Contract Law Code is too realistic an option and much too important not to be thoroughly discussed as transparently as possible with as many competing ideas and approaches as possible. Several special issues have followed this process in great detail. The journal is meant to help in establishing a functional market of ideas in one of the core areas of private law and one of the most important areas of European private law. ERCL is the journal covering this large body of law and the modern solutions to the problems encountered.