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Common Frame of Reference and House of Lords Report

By Bartolus

Regular readers surely know that we are big fans of the Reports published by the British House of Lords EU Select Committee.

That Committee has recently published an interesting and comprehensive report on the "Draft Common Frame of Reference" ("DCFR"), the more common name given to the "Principles, Definitions and Model Rules of European Private Law." For the HTML browsable verion of the report, see here. For a pdf version, see here.

The Common Frame of Reference is an academic venture financed by the EU and is the product of collaboration by distinguished private law scholars across Europe over a number of years.

One of the main purposes of the Common Frame of Reference is to collect a body of uniform terms and concepts which can be used by EU institutions when they prepare legislation covering private and civil in the future. But as Professor von Bar explains in an introductory article, the purpose of the endeavor is to set out :

"[...] a framework set of annotated rules to which the European and national legislators and the European and national courts, including arbitral tribunals, can refer to when in search for a commonly acceptable solution to a given problem. This ?Common Frame of Reference? is also drafted with a view to allowing parties to a contract, whether cross-border or purely domestic, to incorporate its contents into their agreement."

The House of Lords report is very insightful, well-researched and quite critical. It concludes:

"We also remain opposed to harmonisation of the general law of contract. However, this is not now on the agenda and further discussion of it appears to us to serve no useful purpose [...] Above all, in our view, Europe should not commit itself, even in principle, to a generally interventionist view of the law of contract, which tends to over-regulate contractual terms and behaviour and to undervalue the virtues of party autonomy and the principles of freedom and choice for which Europe otherwise stands."

The House of Lords does not conclude that the venture is without value. It will certainly help to improve the quality of EU legislation. And also:

"Further, the comments, notes and comparative law material produced in the course of a substantial research programme underpinning the DCFR, which are to be published later this year, should on any view be a useful aid to mutual understanding, and be of general value nationally and at a European level.

For an equally insightful appraisal, look at Professor Simon Whittaker's "Assessment" prepared for the British Ministry of Justice.

There's also an interesting report prepared by the Scottish regional government in March 2009. Scotland has its own, separate legal system which is a mix of civil and common law. The Scottish government concluded intriguingly that because Scotland is a small jurisdiction, the Common Frame of Reference "represents a welcome opportunity to develop Scots law in a manner that is consistent with the theoretical foundations of Scots law."

For more studies (some but not all available online) and background have a look at the website of the Study Group on a European Civil Code.

Full post as published by EU Law Blog on June 14, 2009 (boomark / email).