Research Aim
The creation of a legally harmonised European jurisdiction supporting the actualisation of a European common market is a political goal. In practice however, European legislation in the fields of private and economic law deals frequently only with selected points of law, is unsystematic and has difficulties overcoming the existing differences between national legal systems. This reality applies above all in confrontations between wholly distinct legal traditions such as continental European civil law and Anglo-Saxon common law where the jurisprudence has developed separately over a lengthy period of time. It is in this realm of problems where the Institute’s foundational research on European private law is located. How will private law and economic law manifest themselves in the Europe of the future - in answering this question the Institute seeks to make a contribution. To what degree and in which fields of law is legal harmonisation wise and necessary? Can one – amid the many differences in national laws - ascertain common elements and legal principles that can serve as a foundation for a legal harmonisation? Is legal harmonisation better achieved through gradual alignment or through implementation of uniform legislation in one fell stroke? What role does community law have in this development through the setting of norms? What significance to case law and what role for an emerging “European Jurisprudence”? What can comparative law theory contribute towards concrete European legal development? It is the basic canon of these central questions that represents the common band connecting all Institute projects addressing private and economic law.
Research Objectives
United under a common roof, the individual projects extend over many areas and themes found in private and economic law. The Institute predominantly selects for study those legal fields which possess both considerable bearing on the European harmonisation process and which are presently developing in a particularly dynamic fashion. Thus, the projects in this area of research emphasis include, inter alia, the law of obligations (contract law and non-contractual obligations, especially tort law and unjustified enrichment), certain categories of contractual relation (insurance law and secured transactions), company law and foundation law, corporate governance (including the question of ascertaining the“correct” administration and control of firms), capital market law, competition law, and finally private international law and civil procedure.
Research Methods
As in other areas of research at the Institute, the work on private and economic law employs the use of multiple methodologies in order to analyse the various aspects of any given research topic. The key principle is to regularly make comparative appraisals from a functional comparative law perspective. This method is characterized by the examination and comparison of different possible legal solutions without reliance on the systemic perceptions of the individual national legal systems. One of many examples in this regard would be the project group “Europäisches Versicherungsvertragsrecht” which is assessing general insurance contract law in Europe. In addition to the functional comparative law analysis, a historic-comparative approach is also adopted. On one hand, this allows an ascertainment of the common sources of legal institutions that are now confronted in the guise of substantially dissimilar national legal systems. On the other, this approach allows one to examine to what extent earlier common European law can serve as a model for future legal harmonisation in Europe. In order that comparative and historical legal research may prove fruitful in the effort towards a modern law, it becomes advisable to work interdisciplinary in the context of legal research and to create a dialogue between legal historians and legal theorists (projects such as “Rechtsgeschichte und Rechtsvergleichung” as well as “Rechtsgeschichte und Privatrechtsdogmatik”).
Viewed as a whole, the spectrum of research projects undertaken by the Institute ranges from the historic-comparative exploration of the common roots of contemporary legal systems to the detailed comparative analysis of individual legal concepts (such as unjustified enrichment or good faith), the systematic organisation of current legal areas into a restatement of the law (as the Institute has undertaken with insurance contract law), and the explication of principles for the configuration of a – future – uniform law (the “Principles of European Contract Law” for example) and on to active, advisory contributions regarding concrete legal reforms undertaken at the national and European levels (as through participation in the “European Commission’s High Level Group of Company Law Experts” or through comments authored on the European harmonisation of private law).
Research Cooperations
Comprehensive comparative law research extending across multiple legal systems, the development of commonly recognised principles and the composition of concrete proposals for legal reforms demand an international network of legal scholars. The Institute actively participates in numerous international research cooperations – several being in existence for already many years. Included in this number are the “Commission on European Contract Law”, which is expounding the principles of European contract law, and the international “Study Group on a European Civil Code”, in which the Institute has taken over the areas of insurance contract law and the law of personal and proprietary security. In the “Forum Europaeum Konzernrecht”, similarly involving numerous international researchers, the Institute is participating in the formulation of a European corporate group law, and in the multilateral project group “Comparative Corporate Governance” questions of corporate control and organisation are being comparatively examined. Bilateral structures of cooperation, in contrast, are predominant with the systematic comparison of common law and civil law. Thus, Institute members are participating in work groups whose composition is formed by paired common law and civil law jurists and which are comparatively studying various legal fields (such as the law of unjustified enrichment). Further, the steady flow of guest scholars hailing from common law jurisdictions who come to the Institute in order to complete a research stay supports systematic comparison as does the mutual exchange of scholars under contracts of cooperation with the Universities of Cambridge and Oxford. An ongoing international dialogue among junior researchers and aspiring jurists is fostered by the Institute’s fellowship program for foreign scholars as well as internationally attended Symposia such as the Institute’s recently constituted post-doctorate conference.
Through international cooperations - indispensable in comparative law – a significant core of a “European jurisprudence” has in fact already developed. In this process the Max Planck Institute for Comparative and International Private Law has played an active and spirited role.
Individual Research Projects in the Fields of European Private and Economic Law