Contractualisation

Research Leader: Nicolas Carette

Presentation

Our research in this line is focused on one form of private ordering: contractualisation. We investigate both contracts and unilateral legal acts in the different fields of private (international) law. Our perspective is the paradigms of the law of obligations, particularly private autonomy and the binding effect of contracts.

Our general purpose is to research the scope and boundaries of private autonomy. On the one hand, we conduct research into private autonomy vis-à-vis mandatory or default statutory regimes in State regulation. On the other hand, we investigate the relationship between the parties to a contract and with third parties (e.g. categories of third parties, legal certainty vs. reasonableness).

Debates

Against that background, our research interests are the following.

Firstly and in light of the traditional Contract/Status divide, we investigate the contractualisation of family law and family property law from two different perspectives. On the one hand, we approach family law (status) from the paradigm of the law of obligations (contract). This research aims at determining to what extent family law can be considered to be contract law, and which opportunities for private family governance exist. On the other hand, we investigate which family law paradigms may be applied to contract law. Our research here aims at determining how property law and contract law may be used to privately regulate relationships as if it were family relations, for example between de facto cohabitants. This research will also allow us to redefine the Contract/Status dichotomy in general.

Secondly, we investigate the right to dispose of private property and the public law restrictions in this regard, from the perspective of article 1 of the First Additional Protocol to the ECHR (protection of property). Again, we will research these issues both in the relation between State and citizen and in the relation between citizens. Particular points of interest will be the application of property paradigms to the human body and to bodily parts, the remaining boundaries and restrictions in inheritance law (mandatory inheritance rights) and restrictions on land use through land planning and development.

Thirdly, our research concerns the increased ability for parties to choose the competent forum and the applicable law within the field of private international law. The expansion of the ability to choose raises questions on the extent to which a legal system can insert exceptions to this freedom by means of, for example, the application of the international public policy exception. In some instances such exceptions or limitations are necessary in order to protect certain members of society that are in a weaker (bargaining) position. The various points of departure in different States with respect to jurisdiction and conflict of laws rules has also led to much development in terms of the Europeanisation of PIL, whereby for the first time the enhanced co-operation procedure has been utilised in the context of the Rome III Regulation (law applicable to divorce).

Specific Research Questions

1. With regard to the Status/Contract dichotomy.

1.1. What are the scope and boundaries of contractual freedom in matrimonial property (and in property relations between cohabitants)?

1.2. What are the scope and boundaries of contractual freedom in inheritance law?

1.3. How can estate-planning techniques, including trusts and trust-like figures, be used to ‘contractualize’ family law and to ‘familiarize’ contract law, e.g. by creating a ‘community property’ between de facto cohabitants?

1.4. Which balance may be found between contractual freedom and State regulation of the insurance market, particularly in light of the need for transparency in insurance contracts from a consumer law perspective and in light of the prevention of reckless behaviour?

2. With regard to the right to protection of property

2.1. Can exceptional breach of the equality before public burdens justify a risk-based liability (without fault) in administrative law?

2.2. Which contractual paradigms can we apply to the exercise of the right to self-determination to the human body, bodily parts and interventions on the body (organ transplants, patentability of stem cells, clinical trials etc.).

2.3. Which restrictions on the protection of property can be applied with regard to inheritance law and to estate planning, between parties and vis-à-vis third parties (e.g. administration clauses)?

2.4. How should we assess restrictions on property on the basis of acquisitive/extinctive prescription?

3. With regard to private international law

3.1. Do general principles on party autonomy underlie the recent and upcoming EU and Hague Conference instruments in private international law?

3.2. How can we reconcile the application of the international public policy exception with the necessary accommodation of minorities?

3.3. What role do mechanisms of private international law play in finding the appropriate balance between individual choice and protection?

3.4. How can the tools of private international law assist in finding legal certainty for individuals involved?

3.5. What can we learn from PIL with regard to national legal pluralism?

3.6. How can we achieve a better protection of employees through private international law on employment in the international transport sector, in light of the increasing freedom of choice for the employer?