Miller, L.; (2009) The Europeanisation of contract law. Doctoral thesis , UCL (University College London).

Abstract

This thesis explores the Europeanisation of contract law through a critical analysis of the European Community's internal market programme of contract law harmonisation. This is a broad theme which raises topical and complex issues. The thesis first examines the pre-existing contractual backdrop in Europe through an Anglo/French comparative study on the rules for non-performance of contractual obligations. The analysis reveals how seemingly technical rules of contract law are underpinned by deeply embedded socio-economic, philosophical and historical values, unique to each jurisdiction. Recognition of the richness of contractual heritage and the gulf that separates each jurisdiction is a first indicator of the considerable obstacles for harmonisation. Nevertheless, the Community’s programme of contract law proceeds with optimism, pinning much on the ability to achieve harmonisation through sector-specific regulation and the drafting of common rules. The pitfalls of this approach are illustrated primarily through a study of the implementation of the EC Sales Directive into the contractual fabrics of English and French law. Fragmentation is found to ensue. Yet, the subsequent evolution of the EC programme, from sector-specific regulation towards more systematic and broader regulation – possibly even a codal instrument – is also revealed to be limited in its harmonising ability. Here, the thesis emphasises how the European contract law programme must embrace the post-national, multi-level architecture in which it operates. The co-existence of multiple sites of private law, and the interlocking and complex nature of interaction between each layer of governance, suggest that pluralism and diversity are here to stay. This indicates a more radical understanding of Europeanisation and has ramifications for the EC contract law programme. Internal market harmonising goals must be recalibrated and balanced alongside the preservation of diversity, in a coordinated framework of mutual learning. This is the charm and challenge of the Europeanisation of contract law.

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