M-EPLI Roundtable: ‘Walking on Common Grounds? New Insights on the Asian, European, and Latin American Principles of Contract Law’

On January 26, 2016, I had the great pleasure of attending a M-EPLI Roundtable organised by Agustin Parise entitled ‘Walking on Common Grounds? New Insights on the Asian, European, and Latin American Principles of Contract Law’. The roundtable was an opportunity to instil curiosity, discuss, and bring more awareness to the Latin American, Asian and European Principles of Contract Law.

The European principles of contract law, in their diverse expressions [Draft Common Frame of Reference (DCFR), Principles of European Contract Law (PECL), Principles of European Insurance Contract Law (PEICL), Principles of European Law, Sales (PEL S)] have received significant attention, especially in academic circles. The ongoing projects on the Principles of Latin American Contract Law and the Principles of Asian Contract law have not been as visible, and it is the great merit of this roundtable to make efforts to bring these projects in the spotlight of the academic debate. The presentations of the speakers were truly eye opening, the work on the Principles of Latin American Contract Law and the Principles of Asian Contract Law being capable of unraveling a whole new word of ideas for comparative contract law enthusiasts.
Looking back at the contributions of all the speakers and the attendees, the fact that this academic gathering was called a ‘roundtable’ seems really appropriate; the time allocated for presentations and the time for discussions was distributed equally, and the overall atmosphere of the discussions was very open to various perspectives and ideas. Professors, researchers, and law students sat together around the long table of the beautiful Bestuurskamer, at Maastricht University, and any pretention of hierarchy was left at the door. All the participants had an equal voice in the debate, and all the contributions brought something interesting to the overall discussion. Much is owed in this regard to the organisers, but also to the chairs of the roundtable’s two sessions and plenary discussion: William Bull, Jiangqiu Ge, Liuhu Luo, and Janwillem Oosterhuis (all from Maastricht University, and MEPLI fellows).
The roundtable began with a short introduction by Jan Smits, which set the scene and introduced the main aims of the roundtable: (1) to present the status of the development of principles of contract law across the world, with an emphasis on Latin American, Asian, and European regional efforts in this regard; (2) and to make comparisons between the different projects that purport to expose such principles.
The first session of the roundtable was focused on the Latin American scene. The first presenter was Agustin Parise, who placed the Principles of Latin American Contract Law in their historical context. He explained how the civil law in Latin America found its expression in three generations of Civil Codes, and now is looking for common roots with the Principles of Latin American Contract Law. After presenting the concept of ‘generations’ of civil codes in general, highlighting the various enactments which reflect generational shifts from first generation to second generation, and then third generation codes, Parise showcased the prior attempts to harmonise the law in Latin America. Parise’s presentation then focused on third generation codes – the latest and most modern Latin American codes – and on the interaction between these codes and the Principles of Latin American Contract Law. He also made a few general points regarding the degree of homogeneity in Latin America (the prevalence of the civil law tradition, the fact that most Latin American countries share a common language, a common legal language, particularly in the area of private law, a liberal institutional framework, and a common interest for the safeguard of human rights). It is of no surprise then that the first question that followed his presentation was whether or not there is such a thing as a ‘Latin American flavour’, and whether it would be possible to bottle that flavour in an instrument like the Principles of Latin American Contract Law.
The debate that followed in many ways anticipated the speech of Rodrigo Momberg, from the Institute of European and Comparative Law, Oxford University, who spoke about the search for a Latin American identity, which ideally ought to be reflected in the Principles of Latin American Contract Law. He first introduced the Principles of Latin American Contract Law and their place in the harmonization of Latin American law. The main point made by Momberg was that it is hard to look for a ‘Latin American flavour’, or a special identity, within the area of the law of contracts, because at the most basic level all the attempts to formulate principles of contract law have been quite similar in contents, particularly when it came to contract law in the civil law tradition. Perhaps what truly stands out as a sign of a Latin American flavour in the Principles of Latin American Contract Law is the conservative approach of its drafters, reflected in the provisions on the form of contracts (no express principle of freedom of formalities), the fact that causa was maintained as an essential element of the contract, and the traditional division between absolute and relative nullity, coupled with the need for judicial declaration.
The element of causa then received further attention from Iñigo de la Maza, from the Universidad Diego Portales, Chile, who spoke about the concept of a ‘contract’, as reflected in the Principles of Latin American Contract Law. He critically assessed the concept of a contract as a subjective ‘agreement’, for which the element of causa traditionally played an important role, perhaps not in its practical applications, but as a reflection of a particular 19th century liberal ideology. What de la Maza aptly noticed was the fact that legal systems tend to appeal less to the concept of causa as contract law jurisprudence evolves and other, more suitable tools, such as vices of consent, or the concept of imprévision, take over. What better example of this evolution than the recently enacted reform on the law of obligations in France, where the concept of causa was abandoned? At the time of the roundtable the reform was not yet passed into law, but the comparison between the approach of the French reform and that of the Principles of Latin American Contract Law was a leitmotiv in the discussion that followed de la Maza’s presentation, particularly due to the insightful contributions of Matthias Martin, visiting from the Université de Lorraine, France.
The second half of the roundtable was focused on the Principles of Asian Contract Law and the various European attempts to formulate principles of contract law. Shiyuan Han, from Tsinghua University, China, joined the roundtable via Skype and delivered a very informative and detailed presentation of the work that is being done at the moment on the Principles of Asian Contract Law. The actual work was preceded by a large number of meetings in forums and conferences, seminars and smaller meetings, and at the moment the working group is fully immersed in the drafting process. So far, the chapters on formation, validity, interpretation, performance and non-performance of the contract have been finalized. Han also explained the methodology used by the working group. It was fascinating to notice that the language used by the drafters is English, but with civil law terminology (for instance, the drafters use the term ‘non-performance’ and not ‘breach’ when discussing non-fulfilment of contractual obligations), and the fact that the drafters pay special attention to the provisions of the CISG and the UNIDROIT Principles before formulating the provisions of the Principles of Asian Contract Law.
Jan Sits followed with his presentation on the European projects formulating principles of contract law. Smits’ talk was focused much less at bringing awareness to the European projects. The European projects for codifying contract law at various levels, and the formulation of contract law principles purported to be European, are generally familiar to comparative contract scholars. That is perhaps why Smits chose to critically assess the conceptual packaging of European principles of contract law, and challenge the idea that these principles reflect a common European core. What we generally understand to be principles in the law have nothing in common with the provisions of projects like the PECL or the DCFR . General principles are supposed to be overarching, performing a gap-filling or superseding role in their interaction with other, more specific rules. Most projects that aim at formulating principles of contract law (including non-European efforts, like the new Principles of Latin American Contract Law and the Principles of Asian Contract Law) include many very specific provisions, and look more like detailed codification projects than actual attempts to formulate principles. In addition, their reflection of a common core was put into question by Smits, as this highly specific regulation inevitably puts the drafters of such principles in a position to choose between a variety of rules, and such choices often hide policy decisions that lurk in the background of what looks like an academic or scientific endeavour.
The presentations were then followed by a plenary discussion that followed the main themes of the roundtable: the need to bring about more awareness into the wonderful comparative law work underlying and reflected in the Latin American and Asian projects formulating principles of contract law, the search for local flavours, identity, and the cultural value of the newly developed principles, the practical and academic value of such projects, and the need for more diversity or more harmonisation in the area of contract law. On this last point, it is interesting to notice that regional academic projects formulating principles of contract law are multiplying, and this creates a paradox of diversity and harmonization: parties to a contract (particularly commercial parties) will now have new tools to rely upon and choose as the applicable law to their contractual relationships, so in a way it can be said that the law is becoming more diversified, but the formulation of Latin American, Asian, or European principles of contract law might also have a harmonising effect, as national legislators could look for inspiration or for added legitimacy by incorporating provisions from these principles into national legislation.
This is an exciting and vibrating time for comparative contract scholars, and in such a context, it was indeed very enriching to participate in the thought-provoking experience that was the MPLI roundtable ‘Walking on Common Grounds? New Insights on the Asian, European, and Latin American Principles of Contract Law’.

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