Harmonization, preferences, and the calculus of consent in commercial and other law

This article forms part of a special edition of the Common Market Law Review.

Publishers Abstract:
There are many potential gains from harmonization, but proponents of harmonization with respect to commercial law across the European Union are likely to stress the potential reduction in transaction costs. One form of compromise is not to harmonize but to offer an attractive alternative that might appeal to jurisdictions, or even to businesses and individuals. The alternative might be limited to, or more attractive for, cross-border transactions. The Draft Common European Sales Law fits this description, even as it incorporates many mandatory terms. It offers an opportunity to think specifically and generally about harmonization.

Section 2 begins quite generally with the relationship between local preferences and harmonization. Section 3 takes a brief detour to include the role of harmonization in promoting union-wide identity. Section 4 takes account of local preferences, and the role of the median voter, in order to understand what might be harmonized. Section 5 introduces the inefficient moves a majority might make because of its ability to impose "external costs."