Martin J Doris, DISPUTE AVOIDANCE AND EUROPEAN CONTRACT LAW: DEALING WITH DIVERGENCE Groningen: Europa Law Publishing (www.europalawpublishing.com), European Studies in Private Law vol 2, 2008. xxi + 259 pp. ISBN 9789076871905. €55.
| Author | Hector L MacQueen |
| Published date | 01 May 2009 |
| DOI | 10.3366/E1364980909001619 |
| Date | 01 May 2009 |
| Pages | 353-355 |
Dr Martin Doris, now of the School of Law at the University of Glasgow, has revised a doctoral thesis written at the European University Institute at Florence and produced a critical analysis of contemporary developments in European contract law. Appearing to accept that divergent contract laws create problems for the single market of the European Union, he is nonetheless opposed to solutions based on a European Civil Code. Writing before the publication of the interim outline edition of the Draft Common Frame of Reference in February 2008, he sees that project as a “potential academic misadventure” (6). The construction and formulation of general principles purporting to represent the “best rule” for Europe on the basis of comparative law techniques simply fails to recognise or correspond with the “complexity of modern contracting processes”, “commercial contracting behaviour”, and the “increased specialisation of business agreements”, as well as the “role of contract drafting and the ability of parties to choose the most suitable forum and law applicable to their contract” (7). Good faith is an example of such a general principle. What is needed instead is empirical study of both commercial practice and actual judicial decisions – the real law in action. It will also have to take account of business’ tendency to remove its disputes from the courts in favour of arbitration. Such study will show where divergence of law is actually detrimental to cross-border and single-market activity, and where it may be left to develop without perpetuating barriers to the free movement of goods and services. Solutions are only needed where there are practical problems.
Against this general background Dr Doris proceeds to discuss as an example liability for pre-contractual negotiations. Despite his preference for empirical study, his method here is basically one of comparative law, the comparison being between English law's apparent rejection of pre-contractual liability, most famously exemplified by the decision of the House of Lords in
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