Innovating Private Law: On Law and Technology (Pavia, 8 February)

On 8 February I had the pleasure to accompany Jan Smits for a visit to Pavia, where we gave a presentation titled ‘Innovating Private Law: On Law and Technology’, on the third day of the Innovating Legal Studies and Practice Winter School 2017.

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Jan Smits Part of Discussion Group at European Parliament about New Consumer Directives Proposals

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On February 18, Jan Smits participated in the workshop organised by the European Parliament Juri Committee regarding the new Commission proposals on online sales of tangible goods, presenting views included in his paper on ‘The New EU Proposal for Harmonised Rules for the Online Sales of Tangible Goods (COM (2015) 635): Conformity, Lack of Conformity and Remedies’.

Find the full paper on SSRN.

 

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Sense and Sensibility (for Lawyers)

IMG_5707During the first lecture of the popular Comparative Contract Law course here at the Maastricht University Faculty of Law, MEPLI’s Jan Smits – the course coordinator – starts off by cautioning the first year students. He states that when one commences the study of law, they will inevitably start seeing the world through “legal goggles” where everything and anything we see could become a potential legal issue: A banana is no longer just a fruit, but a tort waiting to happen and every promise is a fundamental breach in disguise. Implied in his admonition is that as we embark on the study of law, it is important for us to maintain our sensibility and to hold on to our common sense with a kungfu grip.

The Harvard Professor v. The Chinese Restaurant

As we become more involved and intimate with the law, however, it is inevitable that some of us start to lose our grip on this notion of sensibility. A legal dispute that has received some viral attention recently illustrates this case and point.

The dispute is about a Harvard Business School professor (with a BA, JD and PhD all from Harvard) ordering some Chinese delivery. The restaurant’s website listed an old menu (with cheaper prices), which failed to reflect the increased price in their new menu. This meant that there was a $4 discrepancy between what the professor (who ordered online) expected to pay and what the restaurant charged him. The issue between the disputing parties, in essence, is about what the restaurant should do to remedy the situation.

My first question to the dear reader is, who do you sympathize with more: The “victim” (the Harvard law professor who was “cheated” out of $4 and is now on a vigilante crusade against the restaurant) or the “accused” (the family owned Chinese restaurant that is simply trying to make ends meet, but did not have the resources necessary to keep their website constantly up to date).

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Call for student applications: the User_Based Law Research Project

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‘The Faculty of Law, Maastricht University, and HiiL have been granted a subsidy from the Dutch Ministry of Education, Culture and Science in order to set up a Chair, with the purpose to involve prestigious lawyers, who work in the field of the internationalization of law, in research, teaching and PhD research. Part of the grant allows the Faculty of Law to assign a young researcher to write a PhD under the supervision of the Chairholder.’ – www.hiil.org

MEPLI conducts fundamental research in the field of European private law, covering the law of contract, property and tort, but also European procedural law, European legal theory and European legal history. Its establishment in 2010 marks the importance Maastricht University attaches to the international study of law and its commitment to facilitate both internationally leading academics and young scholars in pursuing high quality academic work. MEPLI’s main mission is to conduct creative and fundamental research with a special focus on exploring the consequences of Europeanization and globalization in the field of private law. In doing so, MEPLI questions the relevance of territorial and dogmatic borders delineating both national jurisdictions and the classical areas of law. Where useful, it also involves other disciplines (such as political science, economics and psychology).

The above-mentioned HiiL-UM framework supports the organization of events surrounding the research design and topics pursued by individual PhD candidates. In the light of this context, MEPLI is seeking to collaborate with students on a research project on User_Based Law.

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Fear and Loathing in Asia: Grappling with Withdrawal Rights

 

photo (41)Something happened to me over the summer and I’m still not quite sure how I feel about it. It all started when I was given the opportunity to present at the East China University of Political Science and Law (“ECUPL”) alongside fellowMEPLIers, Jan Smits, William Bull, Jiangqiu Ge, Catalina Goanta and Willem Loof. The topic of my short (and relatively mundane) talk was regarding consumer protection and withdrawal rights in the EU vis-à-vis China’s newly amended Consumer Protection Code [中华人民共和国消费者权益保护法].[1]

After highlighting some germane aspects of the EU’s Consumer Rights Directive (2011/83/EU), I gave my usual spiel about how “consumers are not weak and through collaborative consumer protection, they can protect themselves”. For this talk, I added a bit about how “mandatory withdrawal rights reduce party autonomy and the opportunity for consumers to haggle for a cheaper price, thus reducing the parties’ freedom to contract.”[2] Essentially, I (along with my Chinese counterpart Dr. Wenjie Zhao) advocated for keeping general withdrawal rights optional rather than mandatory (as is the case in the EU and China for most online purchases). My argument sounded reasonable enough at the time (if I may say so myself), but after the conference, while visiting Japan, I started to question some of the things that I had said during the conference and here is why…

 

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‘Setting the contract aside’ – Shanghai, 22 August (brief review)

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A rather numerous MEPLI delegation attended the workshop “Setting the Contract Aside: Comparative Perspectives”, taking place at the East China University of Politics and Law on Friday 22 August. The workshop focused on mapping the different remedies that are available in contracts challenged by defects of consent in various jurisdictions, both European and Chinese, and it was designed to encourage comparative discussions.

The list of presentations: Xuxu He – Avoidance for mistake and misrepresentation; Catalina Goanta – Unfair contract terms in European private law; Jiangqiu Ge – Undue influence in China; William Bull – Undue influence in European law; Keke Jin – Legal Capacity in Chinese law; Jan Smits – Avoidance for legal incapacity; Wenjie Zhao – The right of withdrawal and its problems in China; Mark Kawakami – On withdrawal rights; Willem Loof – The termination paradox. Some interesting points drawn from the discussions: the proximity of Chinese private law to German law leading to similarities with European jurisdictions; the question of whether mandatory consumer rights are necessary in Europe and China; the English underpinnings of some Chinese defects of consent (e.g. misrepresentation, undue influence, etc.).

The conclusion, in the words of Jan Smits: “Perhaps we have more in common than we thought – the Chinese and the European approaches seem to be very similar.”

More photos from the event are available on MEPLI’s Facebook page.

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