MEPLI Highlights Report 2011

On 29 May 2012, M-EPLI published its annual highlights report describing a selected range of events, publications and teaching experiences by M-EPLI fellows in the course of 2011.

The entire report is available for download or may be read online by clicking the cover page below.


Read MEPLI Highlights 2011 online

Download MEPLI Highlights 2011

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CESL v CISG

On 11-12 May, the Max Planck Institute for Comparative and International Private Law held a so-called ‘CISG Conference’ where experts on the international sale of goods came together to review the Vienna Convention in the light of similar structures such as its latest contender, the Common European Sales Law, or the UCC. Accompanied by William Bull and Mark Kawakami, my hopes were high as we were eager to hear what world renowned speakers made of fresh European private law developments (and why not, draw inspiration from that).

Who were these speakers and what did they cover? For a very structural feedback of the program, it is worth saying that the organizers, led by Ulrich Magnus (Hamburg) covered no less than four continents: Harry Fletchner (Pittsburgh) and Larry DiMatteo (Florida, Gainesville) covered the USA, Bruno Zeller (Victoria) brought the Australian perspective, Franco Ferrari (NYU) gave insights into the African experience and Ulrich Magnus himself, joined by Robert Koch (Hamburg), went straight to one of the most sensitive debates of the event, referring to Europe and its CESL.

Attending a Max Planck Institute event was in my case a premiere. It so goes without saying that I was impressed with the quality of information disseminated there, whether I’m talking about the speaker panels or the audience in general (even Reinhard Zimmermann himself joined some of the sessions). However, the tone of the discussion was somewhat predictable. Assemble a room full of CISG-friendly high-profile researchers, and no matter how neutral they strive to be in their analysis of all non-CISG regional sales law, the end result will always bear an echo of ‘if only more universities taught CISG courses, this would be a better commercial and legal world’. Being less familiar with Australian or African sales law, I will focus on depicting the sessions covering the USA and Europe (Although truth be told, I cornered Bruno Zeller in one of the coffee breaks before his talk – who by the way, finished his PhD in two years part-time; Intimidating. – to ask him about how the application of the CISG in Australia can be described overall and he instantaneously replied ‘poor’.)

The USA experience portrayed by Harry Fletchner and Larry DiMatteo was focused on comparative perspectives between the CISG and the UCC. The discourse was fluid and narrative, emphasis was placed on the drafting procedures, generous references to Karl Llewellyn were made, together with some comments on the desirability of provision reviews, interesting differences were underlined (e.g. Statute of frauds – CISG less formal) and then the conclusion followed naturally: practitioners are not rejecting the CISG, it is just a matter of the latter being applied where it is eligible to be applied. End of story. A very descriptive example of two sales regimes competing for jurisdiction, with an overall constructive message.

But then, the acronym CESL was pronounced (very chameleonic set of letters, I don’t think there were two speakers pronouncing it in the same way) and the audience caught fire. Ulrich Magnus and Robert Koch did a wonderful job trying to have a neutral researcher’s take on the CESL, and while the first approach was rather anatomical, focusing on specific provisions, the second was more case-study oriented, as Robert Koch actually adapted a case to understand the sequences of conflict of laws. The message resulting from both presentations: the CESL is trying to replace the CISG, and wrongfully so, since the CISG has all instruments necessary to cover situations arising from contracts of sale, while the CESL is a mere theoretical tool that should stay theoretical. The issues touched upon were extensive and covered, amongst others, procedural aspects, like jurisdictional issues (e.g. if a contract is covered by the CISG by virtue of its opt-out nature, what happens if the parties actually opt into the CESL?), substantive aspects, like the scope of the CESL on contract actors and its specific category of SMEs (to quote DiMatteo “What is a shmee? Maybe something like a shinook.”), but the exciting part if I may say so, was that even political aspects were addressed. This was very much reflected by a discussion on how the Commission has a plan to take over contract law, and it is doing so gradually. There was even intense speculation on how the CESL will enter into force in no time and when the Commission will make a point by showing that legislative efforts creating an optional instrument do not support the internal market, a creeping mandatory instrument on European private law will take CESL’s place.

So in the end I was rather confused. Was it a CISG conference, was it an anti-CESL conference, probably the answer lies in the eye of the beholder. One thing is for sure: I am getting really interested in this topic and am looking forward to episode 2 of the Cecil/Sezl/Ceezil/Sesl debate, here, at M-EPLI, on June 15.

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MEPLI-fellow Agustin Parise awarded most accomplished Argentine young jurist 2009-2011

On April 10, 2012, MEPLI-fellow Dr. Agustin Parise received a distinction from the Argentine National Academy of Law and Social Sciences. Agustin was named the most accomplished Argentine young jurist for the period 2009-2011. This award was established in 1985 and distinguishes Argentine lawyers that have not turned 35 years of age and that have shown the highest standards of academic production. Agustin is currently a PhD. Researcher at MEPLI working at the Department of Foundations and Methods of Law, under the guidance of MEPLI-fellows Prof. Dr. C.H. van Rhee and Prof. Dr. J.H.M. van Erp.

Congratulations Agustin!

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The Harmonization of European Law: An Ignorant American’s Perspective

There is much emphasis in the European legal discourse about the importance of harmonization and whether it is attainable, sustainable, and/or desirable. The irony in all of this – at least from my rather uninformed, American perspective – is that in continuously proposing new instruments and “better methods” to harmonize European law (see e.g. DCFR, CESL, etc.), the average consumer is left with more choices, but not necessarily with tangible benefits.

As the merits of these new, allegedly harmonizing proposals continue to be discussed amongst the academics, the European Commission appears to lean on the side of caution. In other words, rather than promulgating any measure via a directive or a regulation, the EC opts to appease all parties by making the instruments optional or voluntary in nature (a subject I learned a great deal from a lecture given by my colleague, William Bull, who specializes in this particular area). By increasing the number of choices available via these optional instruments, what the EC is essentially doing is giving businesses and consumers alike a bigger buffet of rules to choose from.

While giving people the freedom to choose is often seen as democratic – or as something inherently good – modern psychologists have suggested that an abundance of choice is not necessarily good, but at times, rather inhibiting and possibly harmful to the actual decision making process. (Iyengar and Lepper, 2000). The phenomenon called the Choice Overload Problem (or similarly the Paradox of Choice) essentially states that giving a consumer an abundance of choice freezes them from actually making an intelligent choice. Even when they do make a choice, there is instant regret (based on the idea of opportunity costs) about not having picked one of the myriad of other possible choices. (Schwartz, 2004). Given this hindrance, some psychologists claim that the more choices that a consumer has, the less likely that they will actually make the purchase. This phenomenon is often illustrated by a study conducted by Proctor & Gamble, which showed that after they reduced the number of Head and Shoulders shampoo available to customers from 26 to 15, Proctor & Gamble increased their sales by 10%. (Osnos, 1997).

I must quickly point out my own ridiculousness here, that yes, I am indeed comparing a business choosing a particular legal framework to a customer picking a particular brand of shampoo, but I posit that the comparison is not too ridiculous as to refute the studies conducted by Iyengar, Lepper, and Shwartz entirely. Following their logic, perhaps what ails the European legal system is not necessarily the debate over whether European harmonization is desirable or whether the European Commission is acting ultra vires when promulgating a particular directive/regulation, but it is the overabundance of these optional instruments, guidelines, and other measures that needlessly increase the number of legal authority that the legal consumer must consider before taking action.

Given this background, there are two major concerns that continue to bother me if this state of overabundance is to continue: 1) entities from non-European countries will be reluctant to do business with European companies relying on the “uncertain” European rules, thus decreasing the attractiveness of doing business with Europe; and 2) even an aspiring student of great intelligence will opt to study a more straightforward and concrete national law for the fear that studying European law is a senseless task, given the very real possibility that by the time they graduate, what they’ve learned is obsolete.

As a former practitioner and a newly self-proclaimed academic, I understand that studying the law is supposed to be a challenge – a worthy one at that. However, when there is an overabundance of legal authorities and a constantly changing scheme, I merely suggest that there ought to be a line drawn somewhere separating a difficult challenge from an absurdly senseless challenge where the goal keeps moving further and further away every time one draws near.

My concluding remark, for which I am soliciting criticism, is that from a rather ignorant American’s perspective, the cost of learning, debating, and trying to apply the continuously changing (or “harmonizing”) European law is so cumbersome that perhaps it is doing more harm than good to the European legal framework.

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!! If anyone is remotely interested in the subject discussed above, or the relationship between psychology and the law in general, I strongly recommend that you join us for MEPLI’s roundtable on 15 June 2012, where the infinitely awesome, Dr. Gary Low will be presenting “a psychology of choice of law.” I guarantee that it will be a more worthwhile endeavor than reading my post, not to mention that it will actually be educational.

For more information, please follow this link and RSVP by 8 June 2012:

Thanks for reading!

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Max Planck Encyclopedia of European Private Law Published

I just received the impressive new Max Planck Encyclopedia of European Private Law. This two volume-work containing more than 2000 pages is the joint effort of a large group of authors all associated (or once associated) with the Max Planck Institute for Comparative and International Private Law in Hamburg. It offers concise and highly informative entries on 500 topics in the field, setting the current debate in its historical and comparative context and providing an invaluable companion to present-day scholarship in European private law. This book re-affirms that the emergence of European private law is one of the most significant developments in present-day law. The book is published by Oxford University Press and was edited by Jürgen Basedow, Klaus Hopt, Reinhard Zimmermann and Andreas Stier.

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