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Leaving the Shadow for the Test of Practice - On the Future of the Principles of European Contract Law*

Friedrich Blase#

1. Introduction

2. History and State of Affairs of the PECL

3. The Success Story of the UPICC

4. Specific Value of the PECL

5. Necessary Steps for the Future

6. Endnotes




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Leaving the Shadow for the Test of Practice

On the Future of the Principles of European Contract Law

Friedrich Blase

copy @ Lex Mercatoria

Leaving the Shadow for the Test of Practice - On the Future of the Principles of European Contract Law*

Friedrich Blase#

5. Necessary Steps for the Future

The drafting of a European contract code is still far off. However, the PECL must leave the shadow of the UPICC now and must be taken to the 'market'. This requires a widely diversified marketing strategy aimed at research as much as at education and practice.

Research into the PECL should be encouraged by conferences such as the symposium held in early 1999 at the Max-Planck-Institut.  68  European journals may concentrate on the presentation of essays on the PECL focusing on a comparison with both national laws of the EU and international legal instruments such as the UPICC and the CISG.  69  Spread of research books and essays could be increased by an Internet database similar to the one provided for the CISG.

The text of the PECL should be made available to students and practitioners at attractive prices.  70  Students could be encouraged to evaluate their national legal problems by comparison to the solution found in the PECL. Furthermore, law faculties across Europe should be encouraged to organise a Moot competition which focuses on the fragmentarily harmonised private law as well as the PECL 71  While the well established Jessup-Moot Court has its European counterpart,  72  the Willem C. Vis International Commercial Arbitration Moot has not. There is a gap to be filled.

Practitioners must be made familiar with the application of the PECL in drafting contracts as well as dispute settlement. One could also look at a revision of the 1980 Rome Convention to allow for the choice of rules of law such as the PECL as the law governing the contract.

Most important, however, is the institutionalisation of the Commission on European Contract Law with similar facilities as UNIDROIT. Instead of dissolving the Commission after the presentation of their next results, it should be integrated into a wider institution devoted to the unification of private law in Europe. Such an institution could speedily enable the translation of the PECL into all European languages and could encourage the implementation of the internet database, the academic work in the European journals and the Moot competition.

Unless such measures are taken in the near future, the success of the PECL is in danger. The careful work of several decades could be lost or at least diminished to that of an interesting comparative law study. The result would be a long delay in the European harmonisation process for many years, which is nothing less than an economically significant lost opportunity. The legal profession would have failed to serve the European people.

 68. Resolution of 6 May 1994 (Dok. A3 - 0329/94), Official Journal of the European Communities C 205/518.

 69. 'Europäische Vertragsrechtsvereinheitlichung und deutsches Recht'; papers to be published at the end of 1999 in a joint issue of the AcP and the RabelsZ.

 70. See for a first practice of this the contributions in the newly established European Journal of Law Reform, Vol.1 (1999) No. 3.; however, the contributions still focus largely on the UPICC.

 71. Cf. a planned publication including both the UPICC and the PECL: Centre for Transnational Law (CENTRAL) (ed.), Applying Transnational Principles in Commercial Practice - A Reference Guide, 1999.

 72. Cf. Flessner, Rechtsvereinheitlichung durch Rechtswissenschaft und Juristenausbildung, RabelsZ 56 (1992), at 243 et seq.

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