UNIFORM PRIVATE LAW
Updated A.Y. 2020-2021
The phenomenon of globalization was possible through technology advancement and web revolution. Geopolitically it started with the European unification with continuously wider competencies and increasingly members after the fall of the communist regimes in Eastern Europe in 1989, and continued with the open policy of China sanctioned by its adhesion to the WTO in 2001. Legal systems are the result of the evolution of societies. Actually, they are not confined within the boundaries of national States due to cross-border mobility of people, goods, services and information. This had increased the openness of legal systems to external influences of various nature, such as economic, social, cultural, and strictly normative. Nowadays we are facing an incredibly increase of ‘non-national’ legal systems beside traditional systems.
The aim of the course is to enlighten the interplay between traditional legal systems and the ‘non-national’, supranational legal systems. Law is the product of history, social and economic developments, intellectual and legal culture, mentality and ideology, philosophy and religion, language. To understand deeply and globally the complex eco-system in which the law is immersed, the so-called ‘law in action’ and its dynamics (players, instruments, purposes), it is required an introduction to the comparative methodology before approaching the main issue concerning uniform law. This subject will be discussed starting from the differences between unification, harmonization and conflict of law and arriving to the analysis of contract law and some practical cases.
Learning should be an active and self-motivated experience. Accordingly, class members are expected to contribute with substantive comments during the class. Students who passively listen to lectures are unlikely to absorb the comparative methodology, develop their critical thinking and expand their personal knowledge system. Therefore, learning Uniform Private Law is best accomplished when students are provided not only with theory, but also with practical experiences like presentation and discussion of topics and cases, accompanied by lectures provided by guests, experts and practitioners in different fields.
The final grade of the course is composed by grades on a written exam and contribution during the class attendance and with the presentation of the team project, both compulsory. Students who may not attending the class, do not present a project and collect extra points.
The written exam (2h) concerns on three open-ended questions, each requiring the student to provide his/her so reasoned and elaborated as possible written answer about topics and issues covered during the class. Consistency of the reasoning and correctness of the language will be evaluated. The result of the written exam is the sum of the points in all the parts on a 30-points scale (where the minimum passing grade is 18).
The team project concerns on developing, drafting and presentation of legal topics in group (2-4 persons) in order to practice and prove their (written and oral) communication skills in the field of uniform private law. The project evaluation would add or subtract up to 2 points to the result of the written exam.
Textbooks: 1) Vincenzo Zeno-Zencovich, Comparative Legal Systems, Roma TrE-Press, 2017 (Chapters 7, 8, 9); 16) Katharina Boele-Woelki, Unifying and Harmonizing Substantive Law and the Role of Conflict of Laws, Hague Academy of International Law, Leiden, 2010 (Chapters 1 to 9); 2) Pietro Sirena, Introduction to Private Law, Il Mulino, 2019 (Chapter 3, 4, 7, 8, 10).
Teaching materials: 3) Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law, in The American Journal of Comparative Law, Vol. 39, 1991, 1-34 and 343-401 (except p. 358-384); 4) Ugo Mattei, Three Pattern of Law, Taxonomy and Change in the World’s Legal System, ibid, Vol. 45, 1997, 5-44; 5) Hugh Beale et al., Contract Law, 2nd ed., Oxford, 2010, p. 3-30, and 77-86; p. 6) Tadas Klimas, Comparative Contract Law, Durham (north Carolina), 2006, p. 1-18; 7) Alain Levasseur, Comparative Law of Contract. Cases and Materials, Durham (North Carolina), 2008, p. 1-26; 8) Ewan McKendrick, Contract Law, 7th ed., Oxford, 2016, p. 3-15; 9) Scherer/Palazzo/Baumann, Global Rules and Private Actors: Toward a New Role of the Transnational Corporation in Global Governance, in Business Ethics Quarterly, Vol. 16, 4, 2006, p. 505-524; 10) John W. Cairns, Watson, Walton, and the History of Legal Transplants, in Ga. J. Int’L & Comp. L., vol. 41, 2013, p. 637-696; 11) Alan Watson, Legal Transplants and European Private Law, in Ius Commune Lectures on European Private Law, 2, 2000, p. 1-11; 12) Pierre Legrand, The Impossibility of ‘Legal Transplants’, in Maastricht Journal of European and Comparative Law, vol. 4, 1997, p. 111-124; 13) Michele Graziadei, Legal Transplants and the Frontiers of Legal Knowledge, in Theoretical Inquiries in Law, vol. 10.2, 2009, p. 723-743; 14) George Rodrigo Bandeira Galindo, Entanglements in Legal History: Conceptual Approaches ed. by Thomas Duve, Frankfurt am Main, 2014, p. 129-146; 15) Mathias Siems, Malicious Legal Transplants, in Legal Studies, vol. 38, 2018, p. 103-119; 17) Bart Van Vooren/Ramses A. Wessel, EU External Relations Law, Cambridge, 2014, p. 1-18, 34-54; 18) Isidora Maletic, The Law and Policy of Harmonisation in Europe’s Internal Market, Cheltenham, 2013, p. 6-27, 68-89; 19) Michal Bobek, Of Feasibility and Silent Elephants: The Legitimacy of the Court of Justice through the Eyes of National Courts, in Judging Europe’s Judges ed. by Adams/de Waele/ Meeusen/Straetmans, Oxford, 2013, p. 197-234; 20) Nial Fennelly, The National Judge as Judge of the European Union, in The Court of Justice and the Construction of Europe, The Hague, 2013, p. 61-78; 21) Christian Twigg-Flesner, Some Thoughts on Consumer Law Reform: Consolidation, Codification or a Restatement?, in English and European Perspectives on Contract and Commercial Law. Essays in Honour of Huge Beale, edited by L. Gullifer and S. Vogenauer, 2014, 67-83; 22) Ole Lando, CISG and CESL: Simplicity, Fairness and Social Justice, ibid, 237-249; 23) Stefan Vogenauer, ‘General Principles’ of Contract Law in Transnational Instruments, ibid, 291-318; 24) Christian von Bar, The Numerus Clausus of Property Rights: A European Principle?, ibid, 441-454; 25) Gilles Cuniberti, Conflict of Laws. A Comparative Approach, Cheltenham, 2017, p. 112-131.
The teaching materials’ topics overlap the textbook. They are intended to develop and practice the notions presented by the textbooks’ authors. They have been numbered in order to facilitate non-attending students, exhorted to learn following the numbers.