Institutions that provide credit to consumers have usually included a clause in the loan documentation that allows the credit provider to unilaterally amend the applicable interest rate. Over the past years, these clauses and the way they have been used has come under increased scrutiny. This article charts a number of relevant developments and identifies focus points for the future. Under Dutch law, consumers claim that these clauses are unreasonably onerous and should be invalidated. Dutch courts have to take into account the supranational origin of this provision. The Dutch Hoge Raad (Supreme Court) has given some guidance on the assessment of such clauses in consumer mortgage loans, but has given no principled ruling. In the assessment of the unfairness of an interest rate amendment clause, it is key whether the negative consequences for consumers of these clauses are balanced by the consumer’s contractual rights. Setting aside an interest rate amendment clause can have far reaching consequences, especially if the contract cannot survive without this clause. While the Dutch landscape is still evolving, the German Bundesgerichtshof (Federal Court of Justice) solves this through supplementary interpretation of the contract. It is debatable whether this practice is compatible with European Court of Justice (ECJ) case law. In conclusion, it is noted that the discussion about the unfairness of interest rate amendment clauses should take place in the wider context of both interpretation of the clause and the banks’ duty of care when supplying revolving consumer loans.
{"title":"Testing the Unfairness of Interest Rate Amendment Clauses in Revolving Consumer Loans","authors":"C. Spierings","doi":"10.54648/erpl2022027","DOIUrl":"https://doi.org/10.54648/erpl2022027","url":null,"abstract":"Institutions that provide credit to consumers have usually included a clause in the loan documentation that allows the credit provider to unilaterally amend the applicable interest rate. Over the past years, these clauses and the way they have been used has come under increased scrutiny. This article charts a number of relevant developments and identifies focus points for the future. Under Dutch law, consumers claim that these clauses are unreasonably onerous and should be invalidated. Dutch courts have to take into account the supranational origin of this provision. The Dutch Hoge Raad (Supreme Court) has given some guidance on the assessment of such clauses in consumer mortgage loans, but has given no principled ruling. In the assessment of the unfairness of an interest rate amendment clause, it is key whether the negative consequences for consumers of these clauses are balanced by the consumer’s contractual rights. Setting aside an interest rate amendment clause can have far reaching consequences, especially if the contract cannot survive without this clause. While the Dutch landscape is still evolving, the German Bundesgerichtshof (Federal Court of Justice) solves this through supplementary interpretation of the contract. It is debatable whether this practice is compatible with European Court of Justice (ECJ) case law. In conclusion, it is noted that the discussion about the unfairness of interest rate amendment clauses should take place in the wider context of both interpretation of the clause and the banks’ duty of care when supplying revolving consumer loans.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44500577","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}
Officially supported export credits matter greatly for private contracts: they provide the possibility of large export transactions and contracts which would otherwise not take place. It is therefore important to know how these instruments are regulated on an international level. The international regulation for public European export finance has three levels: rules set by the WTO to curb export subsidies, the Arrangement on Officially Supported Export Credits (which is a gentlemen’s agreement) and the EU state aid framework. Whilst the WTO framework has an official carve-out for the Arrangement, the EU state aid regime does not. Post-Covid, this article looks at the way to proceed with regulating official export credits, and how the different levels of regulation should be applied (and when), concluding that the Arrangement should be the core text of international regulation on export credits.
{"title":"Quo Vadis? Export Credit Regulation After Corona: State Aid, WTO Export Subsidies Laws and the Arrangement","authors":"Bob Jennekens","doi":"10.54648/erpl2022022","DOIUrl":"https://doi.org/10.54648/erpl2022022","url":null,"abstract":"Officially supported export credits matter greatly for private contracts: they provide the possibility of large export transactions and contracts which would otherwise not take place. It is therefore important to know how these instruments are regulated on an international level. The international regulation for public European export finance has three levels: rules set by the WTO to curb export subsidies, the Arrangement on Officially Supported Export Credits (which is a gentlemen’s agreement) and the EU state aid framework. Whilst the WTO framework has an official carve-out for the Arrangement, the EU state aid regime does not. Post-Covid, this article looks at the way to proceed with regulating official export credits, and how the different levels of regulation should be applied (and when), concluding that the Arrangement should be the core text of international regulation on export credits.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46636315","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}
French and Belgian law merely offer doctrines that allow for the dislocation of the risk a party bears in its capacity of debtor, namely the risk of impossible or more onerous performance of obligations. Both legal systems are debtor centrist in that regard. In light of the socio-economic crisis following the outbreak of the coronavirus SARS-CoV- 2, this debtor centrist approach appears to be insufficient. The present article argues that this insufficiency is due to the debtor centrist approach and could be resolved by allowing for a doctrine that takes the materialization of the creditor risk, the frustration of purpose, into account. As German law, but also Dutch and English law, provide, such an approach exists and proves more apt to deal with contract cases arising under the current crisis.
{"title":"The Coronacrisis and Its Impact on Creditors: Frustration of Purpose","authors":"Tom Hick","doi":"10.54648/erpl2022020","DOIUrl":"https://doi.org/10.54648/erpl2022020","url":null,"abstract":"French and Belgian law merely offer doctrines that allow for the dislocation of the risk a party bears in its capacity of debtor, namely the risk of impossible or more onerous performance of obligations. Both legal systems are debtor centrist in that regard. In light of the socio-economic crisis following the outbreak of the coronavirus SARS-CoV- 2, this debtor centrist approach appears to be insufficient. The present article argues that this insufficiency is due to the debtor centrist approach and could be resolved by allowing for a doctrine that takes the materialization of the creditor risk, the frustration of purpose, into account. As German law, but also Dutch and English law, provide, such an approach exists and proves more apt to deal with contract cases arising under the current crisis.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45776774","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}
This article challenges the view that European Union private law (EPL) is inherently instrumental, due to its role in achieving the EU Treaties’ goals, such as completing the internal market. In particular, we claim that characterizing EPL as instrumental, and contrasting it to national private laws in that regard, misses the mark. This is because, contrary to national private laws, it is only a partial legal order. Accordingly, theoretical approaches to private law and its goals that have been devised for complete legal orders cannot apply to EPL, which is not self-standing and needs to be complemented by national private law concepts, in line with the EU principle of national autonomy. Moreover, even if taken on its own, EPL is not particularly instrumental. On the one hand, many of its provisions can be interpreted as applying non-instrumental considerations, such as personal autonomy and interpersonal justice. On the other hand, the European Court of Justice often uses non-instrumental concepts when adjudicating private law disputes and is not focused solely on implementing the public goals of the Treaties. In view of these facts, commentators should be careful when asserting that EPL is particularly instrumental, when compared to national private laws.
{"title":"Rethinking the Instrumentality of European Private Law","authors":"","doi":"10.54648/erpl2022023","DOIUrl":"https://doi.org/10.54648/erpl2022023","url":null,"abstract":"This article challenges the view that European Union private law (EPL) is inherently instrumental, due to its role in achieving the EU Treaties’ goals, such as completing the internal market. In particular, we claim that characterizing EPL as instrumental, and contrasting it to national private laws in that regard, misses the mark. This is because, contrary to national private laws, it is only a partial legal order. Accordingly, theoretical approaches to private law and its goals that have been devised for complete legal orders cannot apply to EPL, which is not self-standing and needs to be complemented by national private law concepts, in line with the EU principle of national autonomy. Moreover, even if taken on its own, EPL is not particularly instrumental. On the one hand, many of its provisions can be interpreted as applying non-instrumental considerations, such as personal autonomy and interpersonal justice. On the other hand, the European Court of Justice often uses non-instrumental concepts when adjudicating private law disputes and is not focused solely on implementing the public goals of the Treaties. In view of these facts, commentators should be careful when asserting that EPL is particularly instrumental, when compared to national private laws.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49648142","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 article presents the Polish courts’ application of the national Private International Law Act 2011 (PIL 2011) during the 10 years it has been in force. The analysis of jurisprudence is supplemented with observations on recent developments in Polish doctrine. The authors discuss correct and erroneous solutions adopted by courts, which are illustrated by provided examples of judgments regarding diverse legal issues. The article deals with mistakes consisting in ignoring the need to search for the applicable law. It also concerns, on the one hand, faulty perceptions and applications of newly introduced instruments (such as the so-called informative provisions or new conflict rules concerning issues that have not been regulated before in the conflictof- laws sphere) or of instruments shaped differently than in the past (such as renvoi). On the other hand, it considers problems that emerged in relation to mechanisms that are well known to Polish judges (such as the public policy exception). Challenges relating to delimiting PIL 2011 from other sources of PIL are also discussed.
{"title":"10 Years of Application of the Polish Act on Private International Law of 2011","authors":"Paulina Twardoch, Agata Kozioł","doi":"10.54648/erpl2022029","DOIUrl":"https://doi.org/10.54648/erpl2022029","url":null,"abstract":"The article presents the Polish courts’ application of the national Private International Law Act 2011 (PIL 2011) during the 10 years it has been in force. The analysis of jurisprudence is supplemented with observations on recent developments in Polish doctrine.\u0000The authors discuss correct and erroneous solutions adopted by courts, which are illustrated by provided examples of judgments regarding diverse legal issues. The article deals with mistakes consisting in ignoring the need to search for the applicable law. It also concerns, on the one hand, faulty perceptions and applications of newly introduced instruments (such as the so-called informative provisions or new conflict rules concerning issues that have not been regulated before in the conflictof- laws sphere) or of instruments shaped differently than in the past (such as renvoi). On the other hand, it considers problems that emerged in relation to mechanisms that are well known to Polish judges (such as the public policy exception). Challenges relating to delimiting PIL 2011 from other sources of PIL are also discussed.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41545068","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: Elise Bant, Wayne Courtney, James Goudkamp & Jeannie Marie Paterson (Eds), Punishment And Private Law, Reviewed By Giuseppe Portonera. Hart Publishing. 2021.","authors":"","doi":"10.54648/erpl2022025","DOIUrl":"https://doi.org/10.54648/erpl2022025","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47446930","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":"Editorial: Der Robo-Richter auf dem Vormarsch in Europa?","authors":"A. Janssen","doi":"10.54648/erpl2022026","DOIUrl":"https://doi.org/10.54648/erpl2022026","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47730121","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":"Editorial: On Various Shades Of Multi-Level Law","authors":"M. Storme","doi":"10.54648/erpl2022019","DOIUrl":"https://doi.org/10.54648/erpl2022019","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41583621","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}
This article takes stock of legal responses to temporary performance impediments in long-term contracts due to the Covid-19 crisis. Are there mechanisms in contract law that can adequately address the disruption caused by the pandemic and by government measures to contain it? And are contract law doctrines able to provide solutions with a long-term view? The article analyses tenants’ protection in commercial and residential lease contracts in England and the Netherlands. The analysis confirms that English contract law provides only a narrow scope for relief based on frustration. Dutch contract law offers broader possibilities for rent discounts on the basis of unforeseen circumstances, good faith and the defects regime in tenancy law. Overall, both systems struggle with two problems: the valuation of rent discounts in times of crisis, and the financial protection of vulnerable parties when payment obligations are revived after the crisis. Long-term changes to contract law should include adjustments of the default rules for long-term contracts to address these issues, linked to a principle of social force majeure.
{"title":"Covid-19 and Long-Term Contracts","authors":"V. Mak","doi":"10.54648/erpl2022021","DOIUrl":"https://doi.org/10.54648/erpl2022021","url":null,"abstract":"This article takes stock of legal responses to temporary performance impediments in long-term contracts due to the Covid-19 crisis. Are there mechanisms in contract law that can adequately address the disruption caused by the pandemic and by government measures to contain it? And are contract law doctrines able to provide solutions with a long-term view? The article analyses tenants’ protection in commercial and residential lease contracts in England and the Netherlands. The analysis confirms that English contract law provides only a narrow scope for relief based on frustration. Dutch contract law offers broader possibilities for rent discounts on the basis of unforeseen circumstances, good faith and the defects regime in tenancy law. Overall, both systems struggle with two problems: the valuation of rent discounts in times of crisis, and the financial protection of vulnerable parties when payment obligations are revived after the crisis. Long-term changes to contract law should include adjustments of the default rules for long-term contracts to address these issues, linked to a principle of social force majeure.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46539056","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}
Eva Pander Maat, D. V. Maurik, Rosario Garza Islas, G. Piscitelli
The joined cases NT1 & NT2 present the first claim before the High Court of England and Wales (the Court) on the right to be forgotten, established by the Court of Justice of the European Union (CJEU) in the seminal Google Spain case. Both claimants, NT1 and NT2, had submitted a request for the de-listing of search results related to their prior criminal convictions. This case note considers how the Court was therefore faced with the question how to strike a balance between, on the one hand, the right to privacy, and, on the other hand, the publicity of criminal trials. In deciding upon this question, the Court notably weighed both EU and national law sources. It considered three main criteria: the nature of the offence, the public interest in the disclosure of the information concerned, and the rehabilitation of the claimant. This case note argues that the opposing conclusions reached in either of the joined cases are exemplary of the way these three criteria are embedded in the broader common law understanding of privacy and the concept of rehabilitation after criminal convictions. As regards the first criterion, on the nature of the offence, the joined cases suggest that if the offence does not involve dishonesty or is old and ‘not serious’, there is a greater chance that the Court does not consider it necessary for the information to remain public. As regards second criterion, on the public interest, it appears that if the claimant is active in public life in a manner related to the offences, this enhances the public interest in the information. Regarding the third criterion, on rehabilitation, it appears that the Court attaches great value to the concept of remorse for past convictions. The case note embeds these judicial considerations in the emphasis on ‘privileged principles of open justice’ in the English and Welsh common law jurisdiction, which have inhibited the post-war revolt to develop a strong right to privacy in civil law jurisdictions on the European continent. Finally, the case note reflects on post-Brexit data protection standards in England and Wales. Whilst assessing that courts will not be able to easily dismiss the relevance of CJEU case law on data protection, the case note identifies several stumbling blocks to lasting EU-UK equivalence on data protection laws and concludes that if anything, Brexit will diminish legal certainty for citizens and data subjects in England and Wales.
{"title":"The Right to Be Forgotten in the UK: A Case Note on the English and Welsh High Court Reasoning in NT1 & NT2 v. Google and the Post-Brexit Prospects in the GDPR era","authors":"Eva Pander Maat, D. V. Maurik, Rosario Garza Islas, G. Piscitelli","doi":"10.54648/erpl2022014","DOIUrl":"https://doi.org/10.54648/erpl2022014","url":null,"abstract":"The joined cases NT1 & NT2 present the first claim before the High Court of England and Wales (the Court) on the right to be forgotten, established by the Court of Justice of the European Union (CJEU) in the seminal Google Spain case. Both claimants, NT1 and NT2, had submitted a request for the de-listing of search results related to their prior criminal convictions. This case note considers how the Court was therefore faced with the question how to strike a balance between, on the one hand, the right to privacy, and, on the other hand, the publicity of criminal trials. In deciding upon this question, the Court notably weighed both EU and national law sources. It considered three main criteria: the nature of the offence, the public interest in the disclosure of the information concerned, and the rehabilitation of the claimant. This case note argues that the opposing conclusions reached in either of the joined cases are exemplary of the way these three criteria are embedded in the broader common law understanding of privacy and the concept of rehabilitation after criminal convictions. As regards the first criterion, on the nature of the offence, the joined cases suggest that if the offence does not involve dishonesty or is old and ‘not serious’, there is a greater chance that the Court does not consider it necessary for the information to remain public. As regards second criterion, on the public interest, it appears that if the claimant is active in public life in a manner related to the offences, this enhances the public interest in the information. Regarding the third criterion, on rehabilitation, it appears that the Court attaches great value to the concept of remorse for past convictions. The case note embeds these judicial considerations in the emphasis on ‘privileged principles of open justice’ in the English and Welsh common law jurisdiction, which have inhibited the post-war revolt to develop a strong right to privacy in civil law jurisdictions on the European continent. Finally, the case note reflects on post-Brexit data protection standards in England and Wales. Whilst assessing that courts will not be able to easily dismiss the relevance of CJEU case law on data protection, the case note identifies several stumbling blocks to lasting EU-UK equivalence on data protection laws and concludes that if anything, Brexit will diminish legal certainty for citizens and data subjects in England and Wales.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42546221","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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