M-EPLI Talk with Anna Beckers, Nicole Kornet, and Pim Oosterhuis on regulation in commercial law- ‘A Multidimensional System’

On 23 October 2013, M-EPLI fellows Anna Beckers, Nicole Kornet, and Pim Oosterhuis delivered a M-EPLI Talk entitled ‘A Multidimensional System of Commercial Law’.            In the presentation, the three fellows first touched upon the current regulatory landscape in commercial law and subsequently offered their view on how commercial law should be regulated (if at all).

The current state in commercial law can be described as one of a multidimensional regulation. There is regulation on global level, such as the Unidroit Principles or the Convention on the International Sale of Goods; regulation on European level, examples being the Commercial Agent Directive or the proposed Common European Sales Law. Furthermore, commercial law is regulated on national level, usually in the form of civil and/or commercial codes (e.g. French Code de commerce, German BGB, UK’s Sale of Goods Act 1979, etc.). One must also not forget about the relevance of private self-regulation, such as the INCOTERMS or UCP 600; and last but not least there is the regulation in commercial relationships between private parties in the form of contracts.

In order to present their view of how regulation in commercial law should work, Anna, Nicole and Pim provided two basic assumptions, upon which their criterion of when and how a commercial relationship should be regulated is subsequently based: first, commercial law facilitates the exchange of goods and services; and second, this facilitation of goods and services can be best achieved by means of party autonomy. Hence, a criterion is that commercial law should facilitate the exercise of party autonomy and enforce agreements between private actors. It therefore means that further regulation is needed in cases where either private actors jeopardize the exercise of party autonomy (e.g. by fraud) or where party autonomy can have negative effects on the market or on society.

Anna, Nicole and Pim further claim that regulation in commercial law can also be viewed as a system consisting of three interconnected, but to a certain extent individual, criterions, which in the end determine whether and what kind of regulation is needed. These criterions are actors, level and form. The first criterion (Actors) determines who should regulate, i.e. whether private actors, such as contracting parties, or rather public actors, such as national legislator, are best able to protect the relevant interest. The second criterion (Level), defines at what level should regulation take place, this being global, regional, national, local, etc., depending on the interest to be regulated, the relevant market and society. The final criterion (Form) then depends on the choice of the relevant actor and relevant level and determines the form this regulation in commercial law should take. A distinction was made between regulatory forms of convention, supranational legislation (e.g. EU Regulation), national legislation, optional instruments, model contracts, etc.

A more extended version of this debate will be included in an upcoming MEPLI publication.






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