Academic journal article Asia Pacific Law Review

The Europeanisation of Contract Law and Its Significance for Asia

Academic journal article Asia Pacific Law Review

The Europeanisation of Contract Law and Its Significance for Asia

Article excerpt

I. Introduction

Throughout the last 200 years, the history of private law has been linked to the emergence and existence of the nation state. The first codes of the 18th century were still, essentially, meant to make the law more accessible by collecting the scattered provisions enacted at different places and in different times. For this purpose, scholars of the Enlightenment advocated the use of an elaborate and logical system that would help to rationalise the application of the law, and thereby increase legal certainty. It was only the French Civil Code of 1804 that pursued two other objectives of codification which have been highly influential for the subsequent development: The Code Napoléon explicitly abrogated all previous private law whether enacted by individual princes or cities, and it thereby turned codification into the vehicle of legal unification at the national level. Ever since then, private law has been connected to national sovereignty, and there were times when legal scholars were eager to point out the particular national brand of their respective system of private law and its content as a kind of national heritage.1

If that link can be considered as a correct assessment at all, it is limited to a fairly recent period of legal history. Roman law, as enshrined in the corpus iuris civilis, was authored by jurists from various parts of the Empire, some of them Romans, others of Greek or Macedonian origin. In the Middle Ages the ius commune was regarded, in many parts of Europe, as a subsidiary source of law supplementing the local statutes and customs, or at least as a common reference which provided guidance for the framing of legal concepts and classifications. It has thus served as a platform of understanding for legal scholars of various nationalities across the continent.2

The sceptical view that 'commercial law is not folklore'3 has been underpinned in the 20th century by a series of further developments. Various countries have adopted foreign codes although there was little cultural proximity between them and the country of origin. Thus, the Turkish Republic took over the Swiss Code of Obligations while Japan, Russia, China and Korea took the German Civil Code as a model. Moreover, ever since the late 19th century, a strong need for the international unification of private law has brought about numerous international conventions in the fields of intellectual property, the law of transport, maritime law, civil aviation, payment and securities, and the sale of goods. This need for unification was first perceived in Europe with its many small countries where cross-border transactions are much more frequent than in other parts of the world. But the globalisation of the late 20th century, the opening of markets and worldwide communication have strengthened the belief of the international community of both governments and business circles that the national character of private law, instead of reflecting the particular character of a country, is rather a barrier to global trade and welfare.

Again, European scholars were the first to analyse this situation with a view to harmonisation. Starting about 1980, an academic initiative has grown into a broad movement and has turned comparative law from theoretical analysis into a preceptor of legislation. This has led to the most recent initiatives of the European Commission, as will be outlined in part IV of this article. For a better understanding, it is, however, necessary to first take a look at the legislative bases and types of Union legislation, (see part II) and address the role of the case law of the European Court of Justice (see part II ). What will be the significance of this development for third countries, eg for Hong Kong and other Asian jurisdictions? Some concluding remarks will endeavour to speculate on this question (see part V).

II. Bases and Types of EU Private Law Legislation

The initial objective of the European Economic Community was not the harmonisation or unification of laws, but the integration of markets. …

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