Non-mandatory Rules and EU Private Law

• Department of Law

The EUI Private Law Working Group hosts an event with Mateusz Grochowski (Max Planck Institute for Comparative and International Private Law).

Abstract

The concept of non-mandatory rules is one of the most intrinsic ideas of the classical contract law. Its essence builds on a two-pronged cooperation scheme between the lawmaker and market actors. They provide a framework of cooperation in forming contractual architecture and, on a flipside, a tool for building collective knowledge on the optimal regulatory content. The growth of EU private law brought considerable changes to this landscape. The strongly regulatory character of the European approach towards contracts entails a substantial shift of proportions between mandatory and non-mandatory rules. The EU contract law is built almost exclusively of non-variable provisions and barely leaves margin for parties’ disposition in the classical fashion. Speaking of non-mandatory rules in European contract law could sound hence almost like an oxymoron. But is it indeed? Firstly, although the EU contract law scarcely refers to non-mandatory rules as such, it broadly ‘outsources’ their setting and enforcement upon the Member States (with the CJEU as the main architect of this dynamic). Secondly, the EU law contains several instruments that follow the same basic functions as default rules, using different institutional design. This includes, in particular, various forms of standardization, private regulation (both induced and acknowledged by the public lawmaker), and other sorts of collaborative creation and enforcement of rules. Such cooperative schemes are increasingly widespread in the regulatory strategies for the online economy. The growing technical and epistemic complexity of the market necessitates there regulatory cooperation, instead of the arbitrary imposition of rules. In this way the present-day EU law provides a unique laboratory for observing how the old concepts of optionality and regulatory cooperation – embedded in the classical form of non-mandatory rules – evolve under the pressure of new market realities and the new governance strategies.

All interested fellows, PhD researchers, professors and visiting academics are invited to participate.