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E-raamat: EU Private Law and the CISG: The Effects for National Law [Taylor & Francis e-raamat]

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  • Formaat: 196 pages
  • Ilmumisaeg: 30-Sep-2021
  • Kirjastus: Routledge
  • ISBN-13: 9781003080602
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EU Private Law and the CISG: The Effects for National LawSuurem pilt
  • Formaat: 196 pages
  • Ilmumisaeg: 30-Sep-2021
  • Kirjastus: Routledge
  • ISBN-13: 9781003080602
Teised raamatud teemal:
Taylor & Francis e-raamatudRohkem infot Taylor & Francis e-raamatute kohta
Raamatu kodulehekülg: https://www.taylorfrancis.com/books/9781003080602
"EU Private Law and the CISG examines selected EU directives in the field of private law and their effects on the national private law systems of several EU Member States and discusses certain specific concepts of the United Nations Convention on Contracts for the International Sale of Goods (CISG) in light of the CISG's recent fortieth anniversary"--

EU Private Law and the CISG examines selected EU directives in the field of private law and their effects on the national private law systems of several EU Member States and discusses certain specific concepts of the United Nations Convention on Contracts for the International Sale of Goods (CISG) in light of the CISG’s recent fortieth anniversary.

The most prominent influence of EU law on national private law systems is in the area of the law of obligations, thus the book focuses on several EU private law directives that cover the issues belonging to contract and tort law, as interpreted in the case law of the Court of Justice of the EU. EU private law concepts need to be interpreted autonomously and uniformly rather than through the lens of national private law systems. The same is true for the CISG which has not only been one of the most successful instruments of the international trade law unification but had also influenced both the EU private law and domestic laws. In Part I, focused on the EU private law and its effects for national laws, chapters examine the recent Digital Content and Services Directive and its likely impact on the contract law of the UK and Ireland, the role aggressive commercial practices play in EU banking and credit legislation, the applicability of the EU private international law rules to collective redress, the unfair contract terms regime of the Late Payment Directive and its transposition into Croatian law, the implementation of the Commercial Agency Directive in Denmark, Estonia and Germany, and disgorgement of profits as remedy provided in the Trade Secrets Directive. In Part II, dealing with selected CISG issues, chapters discuss the autonomous interpretation of CISG’s concept of sale by auction and its notion of intellectual property, as well as the CISG’s principle of freedom of form and the possibility for reservations with the effect of its exclusion.

The book will be of interest to legal scholars in the field of EU private law and international trade law, as well as to the students, practitioners, members of law reform bodies, and civil servants in Europe, and beyond.



This book examines selected EU directives in the field of private law and their effects on the national private law systems of several EU Member States and discusses certain specific concepts of the United Nations Convention on Contracts for the International Sale of Goods (CISG) in light of the CISG’s recent fortieth anniversary.
Table of cases
xi
Table of legislation
xvii
Preface xxxiii
Abbreviations xxxix
Notes on contributors xlvii
1 EU private law and the CISG: An introduction
1(12)
Zvonimir Si Akoper
Ivan Tot
1 Introduction
1(2)
2 EU private law and the national private law systems
3(5)
3 The forty years of the CISG
8(2)
Bibliography
10(3)
PART I EU private law and the national private law systems
13(128)
2 Implementing Directive 2019/770/EU on Contracts for the Supply of Digital Content and Services: A common law perspective
15(22)
Paula Giliker
1 Introduction
15(3)
2 The key provisions of the Digital Content and Services Directive (DCSD)
18(6)
2.1 Scope of die DCSD
18(1)
2.1.1 Contracts to supply digital content or services in exchange for personal data
19(1)
2.1.2 Distinguishing the DCSD from the SGD
20(2)
2.2 Conformity of the digital content or service with the contract
22(1)
2.3 Remedies for lack of conformity
23(1)
3 Leaving the EU: the DCSD and the UK Consumer Rights Act 2015
24(5)
3.1 Key differences between the CRA 2015 and the DCSD
25(1)
3.1.1 No provision for digital services
25(1)
3.1.2 No provision for contracts to supply digital content in return for personal data
26(1)
3.1.3 Overlap between goods and digital content
27(1)
3.1.4 Conformity provisions based on the Sale of Goods Act 1979
27(1)
3.1.5 Remedies influenced by EU law but no right to termination
28(1)
3.2 Lessons to be learnt?
29(1)
4 Remaining in the EU: the DCSD and Irish consumer law
29(4)
4.1 A need for reform
29(2)
4.2 Implementing the DCSD
31(1)
4.2.1 A drafting dilemma
31(1)
4.2.2 A cultural divide?
32(1)
5 Conclusions
33(4)
Bibliography
34(3)
3 Aggressive practices and consumer credit in the EU
37(24)
Eleni Kaprou
1 Introduction
37(1)
2 Rationales for financial regulation
38(3)
3 EU banking and credit regulation and aggressive practices
41(17)
3.1 UCPD and aggressive practices
42(1)
3.2 Distance Marketing of Consumer Financial Services Directive
43(2)
3.3 Consumer Credit Directive
45(3)
3.4 Mortgage Credit Directive
48(4)
3.5 Payment Services Directive
52(3)
3.6 Payment Accounts Directive
55(3)
4 Concluding remarks
58(3)
Bibliography
59(2)
4 Challenges of cross-border enforcement of consumer law: Unfair contract terms
61(12)
Karmen Lutman
1 Introduction
61(1)
2 Private enforcement: individual claims
61(2)
3 Collective redress: injunctions and representative actions
63(3)
4 Public law sanctions
66(4)
5 Conclusion
70(3)
Bibliography
71(2)
5 Unfair contract terms relating to late payment in commercial transactions: The Late Payment Directive and its transposition into Croatian law
73(31)
Ivan Tot
1 Introduction
73(4)
2 The concept of commercial transactions in the LPD 2011
77(6)
2.1 Personal scope
77(1)
2.1.1 The notion of `public authority'
78(1)
2.1.2 The notion of `undertaking'
79(1)
2.2 Substantive scope
80(1)
2.2.1 The concepts of `delivery of goods' and `provision of services'
80(1)
2.2.2 The concept of `remuneration'
81(1)
2.2.3 Contracts and contract-like relationships
82(1)
3 Unfair contract terms regime in the LPD 2011
83(10)
3.1 Scope of the substantive fairness control
83(3)
3.2 Function of the substantive fairness control
86(1)
3.3 The meaning of `grossly unfair'
86(1)
3.3.1 `Crossly unfair' vs `unfair'
87(1)
3.3.2 An indicator of unfairness or a general clause?
88(1)
3.3.3 A gross deviation from `good commercial practice' contrary to `good faith and fair dealing'
89(1)
3.4 Black and grey letter rules
90(1)
3.5 Means to prevent the continued use of grossly unfair terms and practices
91(2)
4 Unfair contract terms relating to late payment in Croatian law
93(7)
4.1 Scope of application
94(1)
4.2 Invalidity of grossly unfair contract terms
95(1)
4.2.1 List of prohibited contract terms and practices
96(1)
4.2.2 Unfairness test
97(1)
4.3 Representative action
98(2)
5 Conclusion
100(4)
Bibliography
101(3)
6 Full freedom of contract in commercial agency law: A road less travelled
104(21)
Stephan Walter
1 Introduction
104(1)
2 Freedom of contract under Danish, Estonian, and German law
105(3)
2.1 German law
105(1)
2.2 Danish law
106(1)
2.3 Estonian law
107(1)
2.4 Summary
108(1)
3 Freedom of contract and the Commercial Agency Directive: a matter of scope
108(9)
3.1 Substantive scope
109(1)
3.2 Temporal scope
109(1)
3.3 Territorial scope
109(1)
3.3.1 The diverging doctrinal views
110(1)
3.3.2 The ECJ on the Directive's territorial scope
111(1)
3.3.2.1 Earlier case law
111(1)
3.3.2.2 Case C-507/15 Agro Foreign Trade & Agency Ltd v Petersime NV
112(1)
3.3.3 The aftermath of Agro Foreign Trade & Agency
113(1)
3.3.3.1 Answers given
113(1)
3.3.3.2 New questions raised
113(1)
3.3.3.2.1 Mixed contracts
114(1)
3.3.3.2.2 Contractual vs actual place of performance
114(1)
3.3.3.2.3 Narrow vs broad definition of `establishment'
115(1)
3.3.3.2.4 The (non-)exhaustive character of the Agro-Criteria
116(1)
3.4 Interim result
117(1)
4 Compatibility of existing rules on freedom of contract with the Directive
117(2)
4.1 German law
117(1)
4.2 Danish law
118(1)
4.3 Estonian law
118(1)
4.4 Interim result
118(1)
5 The way forward
119(3)
5.1 Direct consequences
119(1)
5.2 Indirect consequences
119(1)
5.2.1 Option 1: no additional freedom of contract
120(1)
5.2.2 Option 2: full freedom of contract
120(2)
5.2.3 Option 3: limited freedom of contract
122(1)
6 Conclusion
122(3)
Bibliography
123(2)
7 Comparative perspectives on disgorgement of profits in tort and contract
125(16)
Albert Ruda-Gonzalez
1 Introduction
125(1)
2 Disgorgement in contract
126(7)
3 Disgorgement in tort
133(3)
4 Final remarks
136(5)
Bibliography
138(3)
PART II The forty years of the CISG
141(47)
8 Auctions and auctionlike selling mechanisms in international sale of goods: A call for revisiting Article 2(b) CISG?
143(19)
Kristijan Poljanec
1 Introduction
143(1)
2 Historical background
144(2)
3 New circumstances and the need for autonomous interpretation of the term `auction'
146(1)
4 Autonomous interpretation
146(12)
4.1 Non-forced auctions
147(1)
4.2 `Sale by auction' or `sale at auction'?
148(1)
4.3 Auctionlike selling methods
149(1)
4.3.1 Public procurement
149(1)
4.3.2 Commodity exchanges
150(1)
4.4 Teleological approach
151(1)
4.4.1 Internet auctions as `local transaction'
152(1)
4.4.2 Unpredictability of internet auction
152(1)
4.4.3 Electronic reverse auction
153(1)
4.5 Comparative approach
154(2)
4.6 Systematic approach within the ambit of uniform law
156(1)
4.6.1 Agency law
156(1)
4.6.2 Sales law
157(1)
4.7 Implications of the proposed autonomous concept for the Croatian sales law
157(1)
5 Revision of Art 2(b) CISC
158(1)
6 Conclusion
158(4)
Bibliography
159(3)
9 Relieving the contract of problems that reservations create under Articles 12 and 96 CISG: Can Article 13 CISG operate as a self-help mechanism?
162(15)
Dila Okyar
7 Introduction
162(3)
1.1 The CISC as a successful instrument of unification: overcoming the impossible
162(1)
1.2 The presentation of the problem
163(2)
2 Preserving the international soul of the CISG through autonomous interpretation
165(1)
3 Liberating the contract from domestic form requirements: the principle of freedom of form
166(1)
4 Reserving the freedom of form: Article 96 CISG
167(7)
4.1 General overview
167(2)
4.2 The sphere of application
169(1)
4.2.1 The sphere of application as to the types of contractual declarations
169(1)
4.2.2 The sphere of application as to the types of form requirements
169(1)
4.3 The controversial legal effects of the reservation as to the determination of the law governing the form
170(1)
4.3.1 The majority view
170(1)
4.3.2 The minority view
171(1)
4.3.3 The proposed solution: Article 13 CISG
172(1)
4.3.3.1 General overview
172(1)
4.3.3.2 Applying Article 13 CISG as a self-help mechanism
173(1)
5 Conclusion
174(3)
Bibliography
174(3)
10 International versus domestic? The question of the applicability of intellectual property law to the CISG
177(11)
Sekife Esra Kiraz
1 Introduction
177(1)
2 Intellectual property rights under the CISG
178(2)
3 The CISG's preference of the term `industrial property or other intellectual property'
180(1)
4 The notion of `industrial property or other intellectual property'
181(6)
4.1 International character of the CISG as the standard for interpreting industrial or other intellectual property
181(4)
4.2 Uniform application of the CISG as the standard for interpreting industrial or other intellectual property
185(2)
5 Conclusion
187(1)
Bibliography 188(3)
Index 191
Zvonimir Slakoper is a Full Professor of Civil Law and the Head of the Department of Civil Law at the University of Rijeka, Croatia, Faculty of Law, and a Full Professor of Commercial Law at the University of Zagreb, Croatia, Faculty of Economics and Business. His expertise covers the law of obligations, especially banking contracts, and company law, and he has written, co-authored, and edited several books, including university textbooks, and many journal articles in these fields.

Ivan Tot is an Assistant Professor of Commercial Law in the Faculty of Economics and Business at the University of Zagreb, Croatia, and a Co-Chair of the European Law Institute Croatian Hub. His research mainly focuses on the law of obligations, banking law and European contract law.
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