Suchergebnisse

AbstractThis article examines the problem of divergent judicial interpretation of harmonized documents. Drawing on the experience of harmonization of the law of arbitration, it points out that divergent interpretation runs much deeper than is commonly assumed, and shows strong similarities to the 'transplant effect' discussed in the literature on legal transplants. The article examines why the transplant effect shows up in harmonization, and considers its importance for the eventual success or failure of harmonization projects.

Globalization brings the perceived need for offsetting the effects of deregulation & world competition through harmonization & regulations. The author searches for an acceptable explanation for this approach & for counterarguments to explain its errors. The optimal degree of diversification & homogenization is determined by competition as producers are given free entry into markets. The current transformation of productive structures from big production units to a network style of producing suggests that a transformation of nations could evolve in parallel; functional federalism & competition are preferable to political integration. Harmonization is essentially the suppression of differences; whereas in a free market people seek for optimal differentiation. It is the diversity of standards, not set rules & standards, which bring innovations & profits to consumers. International public goods result in no one bearing direct responsibility for damages caused to specific individuals. It is the network of individuals, interdependent, but exercising individual rights, who use the price system & the judicial system to find solutions to their problems. 4 References. L. A. Hoffman

The central bargain of CESL is to provide firms that do business throughout the European Union the protection of a set of uniform rules that will override the many local laws that now govern consumer and small business transactions. The price for that protection is that firms that opt into CESL must accept an onerous set of mandatory terms intended to protect consumers and SMEs. In practice that price is too steep. The key objective of all contractual arrangements is to secure mutual gains from trade for both sides. That objective is hampered by insisting on intrusive mandatory terms that make contracting more costly and less efficient that it ought to be. A far better approach, fully consistent the principle of subsidiarity, allows any firm to pick its preferred standardized terms for any given class of transactions. That approach has been adopted in the American decision in Carnival Cruise v. Shute. It should work equally well in the European context.