{"title":"On Some Enquiries Into Rebalancing Values in Rules","authors":"M. Storme","doi":"10.54648/erpl2020071","DOIUrl":"https://doi.org/10.54648/erpl2020071","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44684288","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Book Review: Anna Nylund & Magne Strandberg (eds), Civil Procedure and Harmonization of Law. The Dynamics of EU and International Treaties","authors":"J. Werbrouck","doi":"10.54648/erpl2020078","DOIUrl":"https://doi.org/10.54648/erpl2020078","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48571899","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
According to part of the US scholarship, the use of big data and prediction algorithms could entail a paradigmatic change in contract law: No longer would one have general and abstract legal norms, but rather granular and personalized ones, customized on the needs and features of the contracting parties. This shift to a law tailored to specific individuals could affect both default and mandatory rules and provide for a more efficient and just legal system. The argument goes that such a flexible and technology-driven regulation is also capable of addressing the issue of unfair personalized pricing schemes applied by businesses in online transactions. The present contribution adopts a futuristic approach and investigates whether these doctrinal proposals could possibly pave the way for an amendment of the Directive 93/13 on unfair terms in consumer contracts. In doing so, the main elements of the unfair terms control are highlighted, together with their link with national default rules, which serve both as a benchmark for the assessment of the unfair character of the clause and as gap-fillers. Based on a comparison with the findings of US scholars, it then explores how the unfair terms control may change in order to reduce cross-subsidies to a minimum and tackle discriminatory pricing schemes. Finally, this article elaborates further on how the modifications could be implemented within a new enforcement mechanism, using a technology that would also cover so-called smart contracts. personalization, unfair terms control, big data, consumer contracts. Motsclés: Personnalisation, Contrôle de clauses abusives, Grandes bases de données, Contrats conclus avec les consommateurs Schlüsselwörter: Personalisierung, Kontrolle missbräuchlicher Klauseln, Big Data, Verbraucherverträge
根据美国部分学者的说法，大数据和预测算法的使用可能会导致合同法的典型变化：不再有一般和抽象的法律规范，而是根据合同各方的需求和特点定制的精细和个性化的法律规范。这种向针对特定个人的法律的转变可能会影响默认规则和强制性规则，并提供一个更高效、更公正的法律体系。有观点认为，这种灵活且技术驱动的监管也能够解决企业在在线交易中应用的不公平个性化定价方案的问题。本贡献采用了一种未来主义的方法，并调查了这些理论建议是否可能为修订关于消费者合同中不公平条款的93/13号指令铺平道路。在这样做的过程中，强调了不公平条款控制的主要要素，以及它们与国家违约规则的联系，这些规则既是评估该条款不公平性质的基准，也是填补空白的工具。然后，在与美国学者的研究结果进行比较的基础上，探讨了如何改变不公平的条款控制，以将交叉补贴降至最低，并解决歧视性定价方案。最后，本文进一步阐述了如何在新的执行机制内实施修改，使用的技术也将涵盖所谓的智能合同、个性化、不公平条款控制、大数据、消费者合同。Motsclés:Personalization，Contrôle de claussives，Grandes base de données，Contrats conclus avec les consommateurs Schlüsselwörter:Personalizerung，Kontroller missbräuchlicher Klauseln，Big Data，Verbraucherverträge
{"title":"Personalized Unfair Terms Control: EU Law Meets Innovative US Doctrines","authors":"F. Patti","doi":"10.54648/erpl2020075","DOIUrl":"https://doi.org/10.54648/erpl2020075","url":null,"abstract":"According to part of the US scholarship, the use of big data and prediction algorithms could entail a paradigmatic change in contract law: No longer would one have general and abstract legal norms, but rather granular and personalized ones, customized on the needs and features of the contracting parties. This shift to a law tailored to specific individuals could affect both default and mandatory rules and provide for a more efficient and just legal system. The argument goes that such a flexible and technology-driven regulation is also capable of addressing the issue of unfair personalized pricing schemes applied by businesses in online transactions. The present contribution adopts a futuristic approach and investigates whether these doctrinal proposals could possibly pave the way for an amendment of the Directive 93/13 on unfair terms in consumer contracts. In doing so, the main elements of the unfair terms control are highlighted, together with their link with national default rules, which serve both as a benchmark for the assessment of the unfair character of the clause and as gap-fillers. Based on a comparison with the findings of US scholars, it then explores how the unfair terms control may change in order to reduce cross-subsidies to a minimum and tackle discriminatory pricing schemes. Finally, this article elaborates further on how the modifications could be implemented within a new enforcement mechanism, using a technology that would also cover so-called smart contracts.\u0000personalization, unfair terms control, big data, consumer contracts. Motsclés: Personnalisation, Contrôle de clauses abusives, Grandes bases de données, Contrats conclus avec les consommateurs Schlüsselwörter: Personalisierung, Kontrolle missbräuchlicher Klauseln, Big Data, Verbraucherverträge","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42048120","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Online information obligations have come under heavy criticism, among other things because they are felt to be too numerous, too long, and insufficiently transparent. To date, empirical research on online disclosures employed quantitative research designs that were restricted to a consumer-centric perspective in pre-contract conclusion scenarios. The aim of this article is to add to our understanding of online information disclosures in Europe by investigating them from multiple perspectives. We report on how the most relevant stakeholders inGermany, the largest consumermarket in the EUand the pioneer of the transparency principle, view disclosures online as currently defined in European law.We obtained responses on online information obligations’ goals and target groups, their shortcomings and how they could be improved, compliance and processing costs for businesses and consumers, and transparency. We conclude by advocating a paradigm shift in research on information obligations and the formulation of the EU policies that govern them. We propose the alternative view that consumers read disclosures mainly in a post-contract conclusion scenario, as this is a more realistic assumption on their actual use case. On this basis we submit various policy proposals. Transparency, online information obligations, consumer policy, empirical legal studies, qualitative research
{"title":"The Principle of Transparency in Practice: How Different Groups of Stakeholders View EU Online Information Obligations","authors":"Alexander J. Wulf, O. Seizov","doi":"10.54648/erpl2020063","DOIUrl":"https://doi.org/10.54648/erpl2020063","url":null,"abstract":"Online information obligations have come under heavy criticism, among other things because they are felt to be too numerous, too long, and insufficiently transparent. To date, empirical research on online disclosures employed quantitative research designs that were restricted to a consumer-centric perspective in pre-contract conclusion scenarios. The aim of this article is to add to our understanding of online information disclosures in Europe by investigating them from multiple perspectives. We report on how the most relevant stakeholders inGermany, the largest consumermarket in the EUand the pioneer of the transparency principle, view disclosures online as currently defined in European law.We obtained responses on online information obligations’ goals and target groups, their shortcomings and how they could be improved, compliance and processing costs for businesses and consumers, and transparency. We conclude by advocating a paradigm shift in research on information obligations and the formulation of the EU policies that govern them. We propose the alternative view that consumers read disclosures mainly in a post-contract conclusion scenario, as this is a more realistic assumption on their actual use case. On this basis we submit various policy proposals.\u0000Transparency, online information obligations, consumer policy, empirical legal studies, qualitative research","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48074169","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Scope of Defense Against Hostile Takeovers in Poland: Another Argument for the Triviality Thesis","authors":"M. Wolangiewicz","doi":"10.54648/erpl2020061","DOIUrl":"https://doi.org/10.54648/erpl2020061","url":null,"abstract":"M&A, takeovers, hostile takeovers, acquisition, defence","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45490312","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Fernando Gascón Inchausti & Burkhard Hess (eds), The Future of the European Law of Civil Procedure","authors":"J. Werbrouck","doi":"10.54648/erpl2020070","DOIUrl":"https://doi.org/10.54648/erpl2020070","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45601864","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"C. Sganga, Propertizing European Copyright. History, Challenges and Opportunities","authors":"Johan Van de Voorde","doi":"10.54648/erpl2020069","DOIUrl":"https://doi.org/10.54648/erpl2020069","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48726562","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"L. Gutkin, Die Europäisierung der AGB-Kontrolle von Preisänderungsklauseln*","authors":"M. Loos","doi":"10.54648/erpl2020068","DOIUrl":"https://doi.org/10.54648/erpl2020068","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":"1 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70981419","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The search for instruments to protect the environment has lead to the rediscovery of some ancient legal concepts, notably the res communes in the sense of article 714 of the Belgian and French Civil Code (Article 3.43 of the new Belgian Civil Code) and the public trust doctrine in United States law. The res communes are things which cannot be appropriated by anyone (such as water in rivers and seas, atmospheric air, nature and several components of nature), on which each therefore has a subjective right of use and enjoyment. This subjective right is protected, as are all subjective rights, by a cause of action (even independent of any tort). The fact that the right concerning res communes or the public trust benefit in principle everyone has interesting implications: it is not an exclusive subjective right, but an inclusive subjective right. The category of inclusive subjective rights is rather unknown and neglected in legal analysis. This contribution analyses this category, firstly identifying some inclusive subjective rights (next to the res communes and the public trust, it studies in the first place the rights to use public highways and more generally government property destined for public use (domaine public) and in the second place the collective rights of inhabitants of local communities to certain goods held by the incorporated community). It analyses then some of the general principles of their legal status, followed by an examination of their protection by legal action before the courts. Environmental protection - res communes - subjective rights - French law - Belgian law - Code Napoléon - inclusivity - inclusive subjective rights - exclusivity - public trust doctrine
{"title":"Les droits subjectifs inclusifs en droits belge, français et américain Analyse à partir du droit aux choses communes (y compris la public trust doctrine), du droit à l’usage des voies publiques et du droit aux biens communaux","authors":"J. Van de Voorde","doi":"10.54648/erpl2020062","DOIUrl":"https://doi.org/10.54648/erpl2020062","url":null,"abstract":"The search for instruments to protect the environment has lead to the rediscovery of some ancient legal concepts, notably the res communes in the sense of article 714 of the Belgian and French Civil Code (Article 3.43 of the new Belgian Civil Code) and the public trust doctrine in United States law. The res communes are things which cannot be appropriated by anyone (such as water in rivers and seas, atmospheric air, nature and several components of nature), on which each therefore has a subjective right of use and enjoyment. This subjective right is protected, as are all subjective rights, by a cause of action (even independent of any tort). The fact that the right concerning res communes or the public trust benefit in principle everyone has interesting implications: it is not an exclusive subjective right, but an inclusive subjective right. The category of inclusive subjective rights is rather unknown and neglected in legal analysis. This contribution analyses this category, firstly identifying some inclusive subjective rights (next to the res communes and the public trust, it studies in the first place the rights to use public highways and more generally government property destined for public use (domaine public) and in the second place the collective rights of inhabitants of local communities to certain goods held by the incorporated community). It analyses then some of the general principles of their legal status, followed by an examination of their protection by legal action before the courts.\u0000Environmental protection - res communes - subjective rights - French law - Belgian law - Code Napoléon - inclusivity - inclusive subjective rights - exclusivity - public trust doctrine","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45472614","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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