The Growing Importance of European Law and How It Affects Teaching and Research in the Field of the Private Law of Obligations (Torts, Contracts and Restitution)
Schlechtriem, Peter, Texas International Law Journal
I. PRELIMINARY REMARKS
The all-encompassing concept of "European law," comprising such divergent topics as the permitted bending of cucumbers, the shape of caterpillar seats, the requirements for practicing law and admission to the bar, uniform rules on the liability of innkeepers, harmonized rules on time-sharing contracts, as well as rules on auditing and bookkeeping, etc., is not only vast in content but also in regard to its sources. Therefore, I have to limit the subject matter of my contribution. Since this conference is devoted to Hans Baade in honor of his excellence both in teaching and practicing international law as a counselor and expert, I would like to narrow my topic to the profession of law professors and scholars. I will devote my contribution to the influence of the growing European law in general and the directives in particular on teaching and research. And, being a law school professor of private law, I have to cut back my topic even further and will deal with the growing importance of European private law, in particular the law of obligations-i.e. contracts, torts, and restitution-and how it has or should have changed teaching and scholarly research.
II. SOURCES OF EUROPEAN LAW
The instruments used to achieve approximation, harmonization, or unification of law are manyfold and well-known, so that I need not describe them in detail. The least ambitious attempt at unification or harmonization of law are model laws,1 which are merely an invitation to national legislators to enact new laws or reform old ones in order to bring them in line with those of other countries. While such model laws, promulgated by the United Commission on International Trade Law (UNCITRAL), have become quite important on the international level, specific European model laws are rare.2 However, the European Principles of Contract Law, which I will take up later, might become a very important model law for the unifying reform of domestic contract codes. Also, the UN Convention on the International Sale of Goods, although not intended to be only a model law, has served as a model for a number of domestic codifications-including several former socialist countries and Scandinavia-and for reform projects.3
Conventions, which come in many forms and differ in details that cannot be spelt out here, are classic instruments for unification or harmonization of law on an international level.4 The Convention on the Inkeeper's Liability, elaborated and concluded by the member states of the Council of Europe in 1962 in order to facilitate tourism by implementing a uniform regime of liability for lost or destroyed luggage of hotel guests, is but one example.5 More important is the Convention on the Recognition and Enforcement of Judgements,6 which was concluded by member states of the European Community, but acceded to by European non-member states in the so-called Lugano Convention;7 also worthy of mention here is the Rome Treaty on Uniform Conflict of Law Rules for Contractual Relations.8 Although conventions may be effective as a vehicle for unifying or harmonizing the law, they have one great disadvantage: despite meticulous preparation, the signatory states are frequently reluctant to implement them and are "likely to drag their feet for many years before ratifying."9 In addition, once ratified and enacted, it becomes very difficult to amend or improve conventions. It is, therefore, quite understandable that the European Community no longer intends to harmonize the conflict of law rules by a convention of its member states but rather by a so-called regulation.
The most important instruments are, of course, legal acts of the European Community which may "penetrate directly into the legal systems of its member states."10 They are prepared and enacted by the organs of the European Community, i.e. the European Commission, the European Council, and the European Parliament in a complicated procedure of co-decision, producing general rules in the form of directives or regulations. …