Dispute Avoidance and European Contract Law; Dealing with Divergence

Since early 2000 the European institutions have politically prioritised the need for greater coherence and uniformity in European private law. Contract law in particular has remained centre stage. Concerns that the functioning of the Community’s internal market has been hampered by divergence in Member States’ national contract rules, and that both business and consumers are dissuaded from contracting cross border, have prompted a series of landmark Communications, an Action Plan and most recently, full institutional support for the delivery of a decidedly cryptic ‘Common Frame of Reference’, comprised of general principles, model rules and uniform legal terminology. Despite a lack of convincing empirical data in support of the convergence thesis, a diminished business interest has in part allowed the proponents of a comprehensive codification of private law to set the political and academic agenda. Yet this clamour for codification has in many respects overlooked the mechanics of commercial contracting in particular, the importance of contract drafting and the complex negotiations that lead to deals both domestically and cross border. This book therefore engages with two ‘holy grails’ of modern contract scholarship – the appropriate design of EC contract rules and judicial treatment of preliminary, incomplete bargains. In so doing, the study reveals the weakness of existing soft law initiatives and framework codes in capturing the degree of specificity and complexity in the field. Instead, the case is made for a viable methodology of dispute avoidance aimed at re-conceptualising and re-orientating the harmonisation effort.

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