Negotiating [In the Shadow of a] European Private Law

Abstract

Clear and predictable rules act as a shadow in which parties can negotiate. European Private Law cannot offer such a shadow because its rules are too diffuse and incoherent. Nor can national laws provide this in a cross-border context. The European Commission's initiative to review the consumer acquis and create a more consistent body of rules through a CFR must therefore be supported. However, to the extent that the CFR goes beyond the revision of the consumer acquis and envisages the creation of a European contract law, it is argued that a fundamental step is lacking. Before drafting technical rules, an open, transparent and political dialogue is needed about the values underpinning such a contract law. This dialogue can benefit from a diversity of views, including more radical welfarist ideas. Negotiation theory shows how to set up a more open process of developing a European contract law. As in any negotiation, several tensions must be managed: between distribution and creation of value, empathy and assertiveness and between the interests of the European constituency and its political agents. New processes of empowered deliberative democracy with a consensus model of decision making may inspire a means for handling this much needed dialogue on European contract law.