Optional Law: A Plea for Multiple Choice in Private Law
| DOI | 10.1177/1023263X1001700401 |
| Author | Jan M. Smits |
| Published date | 01 December 2010 |
| Date | 01 December 2010 |
| Subject Matter | Editorial |
17 MJ 4 (2010) 347
eDItoR IAL
oPtIonAL LAW: A PLeA foR MULtIPLe
ChoICe In PRIvAte LAW
J M. S*
§1. INTRODUCTION
With the recent publication of the Green Paper on European contract law,1 the European
Commission breathed new life into the old plan to develop an optional contract law for
the European Union.2 is optional code would be bas ed on an amended version of
the Dra Com mon Frame of Reference of European Private Law (DCFR)3 and cou ld be
chosen by pa rties as t he law applicable to t heir contract. We ca n expect that such a set
of rules wil l see the light of day in the com ing decade, even though realit y is dierent at
the moment: t he Rome I-Regulation4 that entered into force only t wo months aer t he
publication of the DCFR leaves no doubt that a choice for anything other tha n a national
jurisdiction is not possible.
is editorial praises the initiative taken by the European Commission. What is
more, it is a plea for the introduction of optional l aw in many more areas tha n contract
law alone. As the prevai ling view is that the conduct of private ac tors (such as citizen s
and r ms) is governed by on ly one law, a v iew of optional law defends the notion that
these actors should be le w ith a mu ltiple choice among various ju risdictions. i s is
elaborated in three parts. Section 2 sketches some recent European phenomena related to
optional law. Section 3 asks how thes e phenomena can be assessed and what advantages
optional law can have compared to more traditiona l forms of law. In the nal section 4, it
is claimed that optiona l law can also create better law at the national level.
* Professor of European Private Law at Ma astricht Unive rsity and Research professor of Comparative
Legal Stud ies at the University of Helsin ki.
1 Green Paper from th e Commission on policy options for progress towards a Europea n Contract Law for
consumers an d businesses, COM (2010) 348.
2 Compare European Voice, ‘Call for single contract law system’, 17 June 2010. A lso see European
Parliament resolut ion of 25 November 2009 on the Communication from the Commission – An area of
freedom, secu rity and justice ser ving the citi zen, [2009] OJ C 285 E, No. 99.
3 C. Von Bar and E. C live (eds.), Principle s, Denitions and Model Rules of Eu ropean Private Law : Dra
Common Frame of Refe rence (DCFR) (Sellier Europea n Law Publishers, Mun ich 2009).
4 Regulation (EC) No 593/2008 of the European Parliame nt and of the Council of 17 June 2008 on the law
applicable to contra ctual obligation s (Rome I), [2008] OJ L 177/6.
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