On codification in the 21st century and contractual terrorism

 

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Jan Smits and I recently attended a conference (‘Reforms regarding the consolidation of the rule of law in European countries’, 5-6 June 2014) at the ‘Lucian Blaga’ University of Sibiu, having been invited there by one of MEPLI’s visiting researchers we were happy to host in Maastricht last year, Sebastian Spinei. The conference was organized under the umbrella of the Association of Latin Law Faculties (link in Romanian) and brought together a wide array of specialists from Italy (Elena Ioriatti – Universita di Giurisprudenza di Trento), France (Guillaume Le Floch – Université  de Rennes), Spain (Maria Salas Porras, Juan José Hinojosa Torralvo, Antonio Márquez Prieto, Rocio Caro Gandara – Universidad de Málaga), Germany (Francisca Sanchez del Hierro, Arnold Rainer – University of Regensburg), the Czech Republic (Pavel Klima – University of Prague) and of course Romania (e.g. Cãlina Jugastru, Ioan Leş, Sebastian Spinei – ‘Lucian Blaga’ University of Sibiu; other universities were also represented).

The main theme, that of legal reforms, was chosen in the light of Romania’s adoption of four new codes (civil law, civil procedure, criminal law, criminal procedure) in the past years.

One of the particularities of the event was the wide ambit of the subjects covered by the theme (from private law to criminal law), equally reflected in its interdisciplinary nature (from law to forensics and education). A second particularity was the lack of a strict language policy, as speeches easily flowed in English, French, Spanish as well as Romanian.

As far as the MEPLI presentations are concerned, Jan Smits gave a talk that touched upon the adequacy of codification in the contemporary legal landscape. His views, which you can read more about on SSRN, brought an original contribution to the discussion regarding the new Romanian Codes. Interpreting his perspective, I would say that as end-users of law become more and more empowered by virtue of their access to and control over information, the choice of the Romanian legislator to not only codify but also to further horizontally harmonize national legislation (e.g. the old Commercial Code has now been incorporated in the New Civil Code that entered into force in 2011) is somewhat curious. In other words, while Western European countries take legislative measures to increase out-of-court private enforcement of law [1] as well as private law-making [2], Romania seems to have reinforced the classical view of law as a state-dominated instrument.

My own presentation focused on unfair terms in consumer contracts (Directive 93/13) as an example of contractual terrorism [3]. More specifically, I spoke about recent developments in Romanian consumer law, namely the modification of Law 193/2000 which now allows for representative actions to be brought by consumer organizations on behalf of consumers [4]. These are actions for the determination of the unfair nature of contractual terms. While this might not be a novel approach if compared to the consumer laws of other Member States, what is indeed quite a substantial change is the extent of the subsequent legal effects. Should a court find a specific term to be unfair, this will not only have an impact on the term in the contracts at hand (the clauses will be removed from the contract), but it also affects all the other ongoing contracts in which the professional uses that term, as well as all future contracts from where that term must be removed. I will further elaborate on these developments in a separate blog post.

The discussion that ensued after our presentations seemed to me a genuine dialogue manifesting the interest of the participants to engage in an exchange of knowledge with a powerful legal-culture dimension. To illustrate this, the Dean of Sibiu’s Faculty of Law was interested in the role of legal custom as a source of law in comparative perspective (Dutch and Romanian). This was particularly interesting in view of the fact that most of these participants were not only academics, but practitioners as well (lawyers or judges).

Overall, there are two things I took away from the conference: (1) the realization of just how important a broad comparative law awareness is in shaping the future of a legal system: in a room full of Italian, Spanish, French and Romanian lawyers, differences in legal doctrine are very difficult to spot (this, of course, does not mean they do not exist). Perhaps off the record it can be stated that this pre-existing familiarity is one of the reasons why Romania chose to draw inspiration from legal systems such as Quebec, Italy and France for its new codification efforts (at least in private law), as opposed to embracing the PECL/DCFR as a model law. As romantic as it sounds, the history of sharing the Code Napoleon is informal partial unification of law at best that echoes the past rather than projecting the future. And (2) I really need to improve my Spanish.

 

[1] See for instance Art. 6:240(4) BW stating that consumer organizations that wish to bring a claim against a professional on the grounds of unfair contract terms are required to negotiate with that professional on the solution of the conflict before having access to a court action.

[2] See for instance the development a scheme for the approval of codes of conduct in the United Kingdom: Consumer Codes Approval Board (CCAB) operated by the Trading Standards Institute (http://www.tradingstandards.gov.uk/advice/ConsumerCodes.cfm)

[3] See Gheorghe Piperea’s wider account of contractual terrorism: http://www.juridice.ro/320886/terorism-contractual.html

[4] Arts. 12, 13, Law no. 193/2000 (http://www.anpc.gov.ro/anpcftp/legislatie/131017/legea_193_2000_131017.pdf)

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