Making European Tort Law: The Game and its Players
In the last decades, building a common European tort law has become a primary goal for many European institutions and research groups. On the one hand, EU institutions frequently highlight the need of simplifying the current diversity in European tort law, and try to achieve this goal injecting the European legal framework with (so far quite incoherent) pieces of legislation. On the other hand, many research groups aim to enhance the Europanization process through means that are much differentiated one to the other. Some of these groups (like the European Group on Tort Law and the Study Group on a European Civil Code) adopt a top-down approach, and seek to draft a ‘soft’ European tort law. Others (e.g. the ‘Ius Commune Casebook for a Common Law of Europe’ project and the ‘Common Core of European Private Law’ project) follow a bottom-up path, committed as they are to develop a better knowledge on tort law across the European law-users. Despite the number and the qualities of such enterprises, there is no agreement on what should be done nor on who should do it. It is from this debate that the paper takes off, aiming to offer an overview of the endeavours currently under way, of the different techniques and methodologies they adopt, and of the possible outcomes that they are likely to produce in the short run as well as in the long run.
Product Liability in a Global Context: the Hollow Victory of the European Model
Abstract: In the last few decades, product liability has established itself as a subject in its own right in many parts of the world. This is well-known for the United States and Western Europe but it is also true in Central and Eastern Europe, on the Pacific Rim (including Australia), parts of Latin America, and elsewhere. Surprisingly, the numerous countries which have recently adopted special product liability rules have sought guidance not from American law but from the European model, especially from the EC Directive of 1985. This Directive has become something like an internationally leading blueprint so that globally speaking, the American approach has become almost an outsider. Yet, while the European model has had great worldwide influence on the law on the books, it has had very little impact on the law in action. In most countries, the European influence has neither significantly affected the nature nor the frequency of suits for damages caused by defective goods. This discrepancy between the Directive’s influence in theory and its impotence in practice illustrates how deceptive and ineffective mere blackletter law harmonization can be.
The Human Rights Act and Parliamentary Democracy
The Human Rights Act 1998 is the culmination of an aggressive campaign for the incorporation into domestic law of the European Convention on Human Rights, a campaign in which the judges joined forces with other political activists. Variously described as 'brilliant';' 'a masterly exposition of the parliamentary draftsman's art';2 and even 'a thing of intellectual beauty',3 the Act has also been greeted as an 'ingenious compromise' between the 'maximalists' and 'minimalists', the former supporting a judicial power to invalidate legislation, as is the case in Canada.4 But although it is purported to reconcile in 'subtle' form the protection of human rights with the sovereignty of Parliament (a claim even more credible after an important but unsung Commons amendment), the Act also represents an unprecedented transfer of political power from the executive and legislature to the judiciary, and a fundamental re-structuring of our 'political constitution'.s As such it is unquestionably the most significant formal redistribution of political power in this country since 1911,6 and perhaps since 1688 when the Bill of Rights proclaimed loudly that proceedings in Parliament ought not to be questioned or impeached in any court or any other place. In the words of Baroness Williams of Crosby, we have crossed our 'constitutional Rubicon',7 at least to the extent that the courts may now declare a statute incompatible with Convention rights. The enactment of the Human Rights Act 1998 was marked by an unusually high quality of debate, particularly in the House of Lords, with powerful performances by the Lord Chancellor and Lord Lester of Herne Hill. The performance of the latter on one occasion was too much for Lord Campbell of Alloway, unaccustomed it seems to cerebral rather than ceremonial contributions in their Lordships' House. Lord Campbell was heard to protest (in a manner dubbed 'offensive' by Lord Ackner)8 about 'these escoteric lectures on law at this time of night', having 'never heard anything like this after dinner' in the 18 years he had been in the Lords.9 He had better get used to it: the law and the lawyers are about to dominate all the debates, at all times of the day and night, before and after every meal time. Indeed in the Second Reading Debate on this Bill in the House of Lords 'full of