University of Helsinki Faculty of XXX
 

Private Law in a Multicultural and Multilingual European Society

 

Research Plan

Kuva

1. Abstract
2. Table of Contents
3. Background
4. Objective and Methods
5. Performers of the research and resources
6. Results

Private Law in a Multicultural and Multilingual European Society


1. Abstract

Research leader : Thomas Wilhelmsson, Professor of Civil and Commercial Law, University of Helsinki.

Title of project : Private Law in a Multicultural and Multilingual European Society.

Funding applied for from the Academy 523.904 e, equalling 15 person-years of work, for the period 2005-2007.

Site of research : Department of Private Law and Institute of International Economic Law (KATTI) at the University of Helsinki.

Description of project : The project analyses the substantive consequences for private law - for the structure, concepts and methods of private law - of the fact that the society to which it is applied is multicultural and multilingual. It focuses on three kinds of questions: (a) To what extent does the multiculturalism of the EU hamper the development of common private law rules and require rules that are specific for the state/region/culture in question and to what extent can the needed localism be met with variations in the application of common legislative provisions? (b) What problems for the common rules are posed by the fact that they are to be implemented in a multilingual society? (c) To what extent and under which circumstances is it possible to refer to cultural and linguistic values as the primary objective of protection by rules of private law?

The project draws its empirical material primarily from the European Union. The concrete studies are focusing on aspects of consumer culture and consumer expectations and the regulation of consumer markets as well as on some features of the regulation of financial markets. On this basis the project analyses on a more theoretical level the opportunities and shortcomings of private law in a multicultural and multilingual context. It contributes to the emerging European legal theory by analysing the new structures of (private) law in the European Union - as such a unique legal structure, the implications of which have not sufficiently been analysed in legal theory so far. The project is multidisciplinary, although with a strong foundation in legal theory.

The project will be able to make a significant contribution to the development of a legal theory recognising the new features of late modern society as well as the development of the European Union. It will also deepen the legal discourse on European/national private law and consumer law. In addition, from a practical point of view the project can make a contribution to the legislative processes based on the European Commission Action Plan on European Contract Law. It may contribute to the understanding of the relationship between European and national regulation in a multicultural setting which is necessary both for the European as well as the national legislator.

 

2. Table of Contents

1. Abstract
2. Table of Contents
3. Background
4. Objectives and Methods
5. Performers of the Research and Resources
6. Results

 

3. Background

The project deals with the relationship between private law on the one hand and culture and language on the other.

There has been much discussion concerning this relationship during the ongoing harmonisation processes within the European Union. The focus of the discussion has been on the question, whether and to what extent private law is a culturally relevant artefact. In other words, is the harmonisation of private law as such culturally problematic - as some like to believe (the "not converging" thesis/Pierre Legrand) - or does private law lack cultural relevance (the "contract law is not folklore" thesis/Ole Lando)? Probably both positions are as such untenable. Rather it is an object for research to find out what parts of private law are culturally determined and therefore difficult to harmonise and what parts are less connected with culture as well as legal culture.

Within the field of legal linguistics there has also been much discussion concerning the question how law in a multilingual setting can function on the basis of various linguistic versions. Within the sphere of private law there has been European research projects on the similarities and differences between legal concepts from various jurisdictions and the problems connected with such variations. As example one could mention the quite recently founded EU research network called "Uniform Terminology for European Private Law" (Zeitschrift für Europäisches Privatrecht 2003, 185). In Finland Heikki Mattila has analysed problems of this kind (Vertaileva oikeuslingvistiikka, Helsinki 2002).

These issues are important and certainly have an impact on the present project as well. Its focus is, however, elsewhere. It analyses the substantive consequences for private law of the fact that the society to which it is applied is multicultural and multilingual. In what way is the fact that the (European) society is multicultural and multilingual reflected in the structure, concepts and methods of its private law and how should it be reflected?

Issues like these have been addressed to a surprisingly small extent in the European debate so far. The harmonisation issue has been dealt with in terms of whether and in what areas harmonisation is needed, in terms of the forms and instruments of harmonisation (European Civil Code or not?) as well as in terms of specific rules and principles and their content (for example the Principles of European Contract Law). The literature is abundant. However, very small parts of this literature even shortly analyses the question what specific demands the multiculturalism and -multilingualism of the society to which the harmonised rules are to be applied puts for the structure, concepts and methodology of private law as opposed to a private law for a more homogeneous society.

The research team in previous basic research has laid the foundations for the project. The analyses of the private law of the pluralist, post-welfarist, late modern and globalised society in a previous research project funded by the Academy of Finland (the so-called HYS-project on "Welfare State Expectations, Privatisation and Private Law", funded 1996-1998) offer a solid ground for research concerning Europeanisation and multiculturalism. In this context one should especially mention the final reports of the above-mentioned project: Wilhelmsson & Hurri, From Dissonance to Sense: Welfare State Expectations, Privatisation and Private Law, Ashgate, Aldershot, 1999, as well as Wilhelmsson et al., Pieniä kertomuksia hyvinvointivaltion siviilioikeudesta, WSLT, Helsinki, 2000. As mentioned above, the research theme is closely connected with ongoing discussions on harmonisation of European private law. Several persons in the research team have participated in the European discussion through publications in this area: for example Paasilehto, A New Approach to Legal Culture and European Integration of Private Law, Helsinki 2002, as well as Wilhelmsson, Private Law in the EU: Harmonised or Fragmented Europeanisation? European Review of Private Law 2002, 77-94. An important strand of the project is the relationship between consumer culture, consumer expectations and European regulation. Issues relating to consumer expectations have been dealt with e.g. in the dissertations of the following team members: Bärlund, Reklamation i konsumentavtal, Helsingfors 2002, Norio-Timonen, Kuluttajavakuutusten vertailtavuus ja sääntely, Helsinki 1997, and Viitanen, Lautakuntamenettely kuluttajariitojen ratkaisukeinona, Helsinki 2003.

 

4. Objectives and Methods

The questions to be asked are in other words: How does private law function in a multicultural and multilingual environment, like the European Union? How should it be structured to perform as well as possible in such an environment, with regard to the position of individuals (see Sankari, below). This brings us to three kinds of issues.

Firstly, the efficiency and effects of rules are always partially determined by the societal context in which they are put to work. A certain rule may work well in a certain cultural context and less well in another. To what extent does the multiculturalism of the EU hamper the development of common private law rules and require rules that are specific for the state/region/culture in question? To what extent are different legislative solutions needed and to what extent can the needed localism be met with variations in the applications of common legislative provisions?

For example, in English law and business practice a party has a very limited obligation to inform the other party about negative circumstances when the contract is concluded. As this is accepted and recognised within the business community parties behave accordingly, and take adequate precautions when contracts are concluded. Obviously the transplantation of such a rule to a continental or Nordic environment, in which the trust in the information given by the other party traditionally plays a much stronger role, would have quite problematic consequences. This problem can be estimated as especially acute in consumer markets (see Viitanen, Norio-Timonen, Bärlund and Rosendahl, below). Even according to Eurobarometer surveys consumers in some member states expect to be protected by the law and the authorities in quite another fashion than in other member states, and their behaviour in the marketplace probably corresponds to this. Common and inflexible European regulations e.g. on information requirements and more generally on marketing and good commercial practice are therefore obviously not an optimal solution in all cases.

As mentioned above, the variations in consumer cultures and consumer expectations and their impact on national and European consumer law is one of the key issues of the project. Especially in this area a multidisciplinary approach, combining empirical research on consumer behaviour, cultural studies and law, is promising, as consumer research is well-developed within many disciplines of social sciences.

The developing area of Nordic studies provides fuel for specific studies on the impact of the Nordic culture on private law (see Harju, below). Needless to say, especially in the consumer field the Nordic peculiarities can enrich the European picture to a considerable extent.

Secondly, the question of language also brings about legal problems. What problems for the common rules are posed by the fact that they are to be implemented in a multilingual society? It is symptomatic that the EU has not even in its consumer protection directives been able to create a consistent language policy (Hans-W. Micklitz, Zum Recht des Verbrauchers auf die eigene Sprache, ZeuP 2003, 635). Three objectives are mixed: on the one hand the free movement of goods, services and information and on the other both the need for the consumer to get information and contract terms in a language (s)he understands and the need to promote the linguistic diversity within the Union. In many Member States the question concerning the effects of standard form contracts in foreign languages is a much-debated and unsolved issue. The problem of safeguarding the right to use minority languages in privatisation processes, e.g. of services of general interest, is a more general problem of the same nature. Such quite concrete legal issues are also addressed within the project.

Thirdly, private law may also offer a tool for protecting the cultural diversity and, as just mentioned, the linguistic diversity. This brings up a whole range of substantive private law issues. Can one and under what circumstances refer to cultural and linguistic values as the primary objective of protection by contract law, by tort law and by other parts of private law?

The project draws its empirical material primarily from the European Union. It may therefore contribute to the development of EC law. However, the project also has deeper ambitions. It aims at studying on a more theoretical level the opportunities and shortcomings of private law in a multicultural and multilingual context. It contributes to the emerging European legal theory by analysing the new structures of (private) law in the European Union - as such a unique legal structure, the implications of which have not sufficiently been analysed in legal theory so far (see especially the contributions of Wilhelmsson and Paasilehto, below).

Although the project is primarily focusing on Europe, comparative data from similar harmonisation developments elsewhere may be used to deepen the understanding. In the context of globalisation (especially the WTO) similar problems as those analysed by the project are encountered. The various consumer attitudes towards genetically modified products and their reflections in information requirements are just one example (Peter Rott, Genetically Modified Products and Consumer Concerns under WTO Law, The Journal of World Intellectual Property 2003, 571).

The research will be conducted both by senior researchers and doctoral students. As to researcher training the experience of the HYS-project (see above), which was very successful as producer of doctoral degrees, can be used. A close cooperation with the Finnish graduate school in law is also planned, as the most graduates in this school are working at the research institute KATTI at the University of Helsinki, as well as with the newly established graduate school at the Department of Private Law at the University of Helsinki. Several of the studies mentioned below are planned doctoral theses.

The following specific studies will be conducted within the project:

A. First, the general theoretical and conceptual framework of the project as well as the general conclusions to be drawn from it are presented in joint publications to which each member of the research team is contributing. In addition, legal-theoretical analyses are performed under the following sub-headings:

A general theory of private law in a multicultural and multilingual society , including the European multilingualism and its effects on private law (Wilhelmsson). This study focuses on the question, what consequences the inevitable Europeanisation of private law, whatever form it takes, seems to have and ought to have for legal reasoning within the area of private law, when analysed in connection with the special features which are characteristic for today's late modern society and with the cultural and linguistic diversity prevailing in the European society. The method can basically be described as social and legal diagnosis, and it attempts to relate the questions to recent development of social theory concerning late modern (post-modern) societies. The consequences for legal theory building of the fragmentation of legal materials caused by Europeanisation are analysed. Small stories rather than comprehensive systems move into the centre of legal reasoning.

Drafting the future? A study on the legal options of the European Union (Paasilehto). The aim of the study is to examine the relevance of legal theoretical tools for European integration strategies, especially in the area of private law. Three aspects will be explored. The first will examine the possible heuristic tools applicable to European studies. The second aspect will focus on the specific interrelation between the European law and the private law regimes in the intense global transformation. The need for harmonisation has to be evaluated in accordance with the global development. The third aspect will be the correlation of the legal discipline to other human sciences in the field of European studies. The study will bring the different branches of the project together and offer new approaches and strategies for harmonising European private law regimes both nationally and on the European level. The aim is to produce a conceptual framework for drafting the future in a multicultural and multilingual society.

An individual in the European Union: The effect of union citizenship in the field of private law and reflections on legal integration (Sankari). The purpose of this part of the project is to study EC law and questions of legal integration from the point of view of a private individual. Although the study is based on the tradition of European law, the aim is not to examine integration on the EU-level, but on the national level. As the individual is in the focus, the legal significance of Union citizenship is examined. The research question here is threefold: a) what is the current content of the legal concept "Union citizenship", b) what is the impact of this concept on the general substantive and personal scope of EC law, and c) the effect on the basic freedoms, especially in the area of free movement? The research hypothesis is that the individuals - as Union citizens or not - in addition to the rights and obligations that follow from the founding Treaties have also other rights. In addition to this, the EC has, through the integration of national legal orders, had an effect on the everyday legal status of the individual. The intertwined and complex network of EC-, national and international law follow the freely moving and residing Union citizen, the private individual, from one Member State to another, from a (legal) culture to another. Do Union citizens somehow risk their legal status when they move to another Member State, or whether is it only the new (legal) culture and language that make it seem so.

B . The impact of the diversity of consumer cultures and consumer expectations in the multicultural and multilingual European Union on private law and consumer law is above mentioned as the main area in which the theoretical tools developed within the project are tested. The theoretical conclusions of the project can also to a large extent be based on the concrete analyses in the consumer law area. Here, the following tentative sub-headings can be mentioned:

The consumer in the reality of the competition society (Viitanen). Competition law - but also EC consumer law - is based on an assumption that consumers make rational choices between consumer commodities after careful comparison of their features, especially their price. This rational decision-making procedure is the main incentive to promote competition. One of the basic conditions for rational decision-making is, however, that consumers have good opportunities to collect and compare information concerning different consumer goods and services. In practice, however, consumers have great difficulties in this respect. The study focuses on the questions, a) in which ways the present legislation promotes collecting and comparison of information which is needed in a rational decision-making procedure or prevents consumers from doing so, b) whether there are any legislative methods which may be used in order to promote possibilities to collect and compare information, and c) whether there are any differences in the present system and in possibilities for development between the Member States. The efficiency of information rules obviously to some extent is connected with cultural and linguistic features prevailing in the societies in which the rules are applied. The relevance of multiculturalism and multilingualism for information regulation therefore naturally is one focal area of the study.

Internationalisation of service markets and development of consumer protection (Norio-Timonen). The internationalisation of service markets allows a consumer to choose not only between more suppliers but also among products that have not before been available to him. New technical possibilities make it easy to purchase services abroad, and to carry out services virtually. Especially these kinds of services are often based on language in one way or another. The study concerns the challenges issued by the internationalisation of service markets to the development of consumer protection. The emphasis is on regulation, supervision and means of arbitration. The study combines the viewpoints of different fields of law, regulation of business activities and law and economics. The study aims at answering questions like: to what extent and how should and could consumer protection regulation be improved nationally and in the EU, bearing also in mind the effects of (different) consumer protection regimes on competition; how should co-operation between different authorities be improved in order to safeguard the protection of consumers; and how should the means of arbitration be developed? All these research question require an analysis of consumer behaviour and expectations in different European cultural settings.

Comparative advertising in a multicultural and multilingual EU (Bärlund). Since the year 2000 there is according to the EC Directive on Misleading and Comparative Advertising no possibility for the Member States of the European Union of prohibiting comparative advertising per se . For some member states this has meant a renouncement from previous provisions according to which comparative advertising was completely banned. For other member states the implementation of the directive has meant no real change of the legal situation. Different cultures concerning the lawfulness of a specific marketing method has had its cause in different attitudes towards fair practices in business life. As the Directive has introduced a common set of rules for the limitations of how to carry out comparative advertising, it is of utmost interest to study how the provisions in the EC Directive have been implemented in the legal system of the Member States. Can the possibly different ways of forming and interpreting the national rules on comparative advertisement be explained (at least partly) by different cultural and linguistic factors? The main purpose of the study is therefore to compare the national provisions and the interpretation of them in some European countries, such as the Nordic countries as well as England, France and Germany.

Contract law and media products (Rosendahl). In the western societies mass media has been given a special role as a safe keeper of information flows. Also in legal thinking the media is seen as an essential element of democratic process and therefore it is suggested that certain privileges should be guaranteed to the media. For example the constitutional rights, especially freedom of speech, should be given special weight in legal argumentation when media performance is evaluated. However, today the media is not only an institution, but also a very profitable business with relationships in the marketplace to consumers as well as businesses. This situation creates new dilemmas, such as how to regulate a global business, which has been granted a special status by the constitution. Besides new legislation also existing legal rules and principles may become problematic when a media company is involved. For example all rules of consumer law and trade law have not been applied to the media products even though there are no obvious legal obstacles to their application. It is the legal culture, which has not recognised media products as objects for such rules. But is it really feasible to apply these rules without any adjustment to the media? Media products may be defined as cultural products. The media selects and transmits information and entertainment, which are culture related, and it is essential for the media to pay special attention to the needs of the audience. Are there some new contract law rules and principles yet to be discovered? And do these rules reflect variations in the media culture and the status of the media in different countries? - This work is financed by a research grant of the University of Helsinki until the end of 2006.

C. Finally, financial markets are often considered the most globalised sector of the marketplace. To counterbalance the conclusions based on the studies of the regulation of the often rather local consumer markets the project includes some studies on the effect of multiculturalism on the regulation of financial markets as well:

Aspects on national discretion with regard to collective investment undertakings (Harju). In the EU, a directive from 1985 regulates undertakings for collective investment in transferable securities. The directive allows several legal forms for collective investment, like unit trusts, common funds and investment companies with variable capital. For historical reasons, only common funds are regulated in Finland and Sweden. The study, firstly, concerns the reasons behind this choice in Finland and in Sweden. The directive also allows national discretion on several other points, like corporate governance, shareholder democracy, beneficial ownership, capital requirements, listing and taxation. The study, secondly, concerns the reasoning behind and the limits of the national discretion in the context of a relation between national law and a framework directive. Furthermore, the analysis covers the reasons whether the same legal framework targeted to protect average investors is a suitable approach to address new instruments in financial markets, like hedge funds and derivatives funds. Finally, the study aims to answer questions whether national discretion can create distortion, and whether the creation of eventual false incentives could be avoided by fine-tuning of the legal framework. The study is set to the landscape of Nordic legal tradition. It produces materials for assessing the impact of the Nordic culture on private law as well as, more broadly, the relevance of national economic culture for the implementation and application of EC financial markets regulation.

Emerging non-bank payments systems and customer protection (Majuri). Efficient payments and payments systems are often described as the oil in the wheels of the market economy. Traditionally and due to strict regulation depository banks have maintained a nearly monopoly position in the payments business. Therefore the bank account based interbank payments systems are at the centre-stage of the financial system. In the very recent years there has been significant emergence of the non-bank payments intermediaries, such as telecommunication and internet operators. There has been regulatory reforms in this field, such as e-commerce directive and e-money directive, and new legislature techniques, such as country-of-origin -principle, have changed the legal landscape, but the fundamental questions related to the law of obligations remain unharmonised. The purpose of the study is to interpret and systematise the legal grey area between depository banking and other business activity in the payments business especially from the customer point of view. This implies a study of t he interaction between national civil law (especially the law of obligations), national legal and economic culture and a partially harmonised EC Law. - This study is financed by KATTI within its research project on Financial Market Law until the end of 2005.

Cross-border real security rights in movable property: Finnish private international law and the harmonisation of European security regimes (Juutilainen). The study deals with the divergences of the European regimes of contractual security rights in movables, both tangible and intangible. In different legal systems, different types of security rights are accepted and the preconditions for their effects against third parties vary. These divergences are a major cause of uncertainty in cross-border lending and trade. For a start, remedies will be sought in the domestic private international law. Lex rei sitae is the obvious but, as such, inadequate starting point. This conflict rule needs to be complemented somehow in order to provide certainty and predictability – and flexibility, when needed. Some scholars have even suggested replacing it. Developing conflict rules for these situations means a search for the balance between the interests of the secured creditor and the third parties, usually the debtor’s unsecured creditors. Harmonisation of substantive law of security rights would remove these problems partly, but the process is difficult due to the compromises it demands to be made. However, also this opening is worth of exploring and provides opportunities to rethink the domestic substantive law of security rights.

 

5. Performers of the research and resources

A. The Finnish team

Project leader:
Thomas Wilhelmsson, Professor of Civil and Commercial Law, University of Helsinki

Other members of the Steering Committee:
Dr. Pia Letto-Vanamo, Director of KATTI
Professor Heikki E.S. Mattila, University of Lapland

Postdoctoral Researchers:
Dr. Johan Bärlund, acting Professor of Private Law, University of Helsinki
Dr. Jaana Norio-Timonen, Docent, Senior Lecturer, University of Tampere
Dr. Satu Paasilehto, Researcher, Academy of Finland/University of Helsinki
Dr. Klaus Viitanen, acting Lecturer, University of Helsinki

Doctoral Students:
Ilkka Harju, Ministry of Finance
Teemu Juutilainen, University of Helsinki
Tuomas Majuri, Ministry of Finance
Riikka Rosendahl, KATTI, University of Helsinki
Suvi Sankari, KATTI, University of Helsinki

The division of labour between the researchers is noted above.

As the project aims at developing Europeanised researcher training (see below), two or three additional doctoral students could be included in the project, provided adequate funding is secured. The need to promote equality is taken into account when recruiting the new doctoral students.

The project is multidisciplinary, with a strong foundation in legal theory. Therefore the work is performed in close cooperation with the multidisciplinary Network for European Studies (led by Dr. Teija Tiilikainen) established at the University of Helsinki.

The multidisciplinary character of the project is also enhanced by the cooperation with the chair in legal linguistics at the University of Lapland (Heikki E.S.Mattila).


B. International cooperation

The harmonisation research projects based on the European Commission Action Plan on European Contract Law, funded by the VIth Framework Programme, are natural partners. The project leader is participating in two such research groups:

The Acquis Group. This group, the European research Group on existing Community Private Law was founded in 2002 and targets a systematic arrangement of existing Community law to elucidate the common structures of the emerging Community private law. It searches for possible principles that reflect common basic concepts and principles of Community private law which underlie individual pieces of legislation. It consists of scholars from each Member State of the "old" EU and some scholars also from the new Member States. It is headed by the well- known comparatist Professor Gianmaria Ajani, at the University of Torino, and the practical running is taken care of by the relevant departments of the universities of Münster and Bielefeld (Professors Reiner Schulze and Hans Schulte-Nölke). It is a part of the "network of networks", which most likely will receive funding through the VIth Framework programme, for the work on European harmonisation of contract law.

The Social Justice Group. This Group attempts to avoid a narrow legal agenda in the harmonisation debate and bring social justice and regulatory legitimacy on the fore in the European private law debate. It offers a critical, societally oriented, perspective on the harmonisation issues, taking more seriously in account the human rights aspects and the nature of Europe as a multi-level governance structure. The issues discussed by the present research project are part of the research theme of the group. It collects researchers from many of the Member states and is led from Amsterdam (Professor Martijn Hesselink) and London (Professor Hugh Collins, LSE).

In addition, the project also participates in the work of the Society of European Contract Law, SECOLA. The project leader is a member of its advisory board.

The members of the groups, representing most of the EU countries, in many cases base their work on national research groups, which are involved in the work. The present project group will function as a reference group for the above-mentioned European groups. Various members of the project group could also more directly be engaged in the work of the European groups.

The present project will also include some representatives of partnership institutions within the European networks directly in its work. Such close partners are:

- in Germany: The Faculty of Law at the University of Bamberg, as well as the research institute VIEW in Berlin, both represented through Professor Hans-W. Micklitz and his research team. Micklitz is one of the leading experts in Europe in consumer law, chairing the European Consumer Law Group for several years.

- in England: The Department of Law at the University of Sheffield, represented through professor Geraint Howells, known as well as one of the best experts in European consumer law.


C. Conferences

The project organises an international/European scientific conference with high profile on its subject. The conference will be arranged in the second year of the project in order to test its preliminary findings internationally and develop them further in an international context. The conference will be arranged in cooperation with the Department of Private Law at the University of Helsinki in a conference centre in the vicinity of Helsinki. Based on the experience from previous conferences arranged by similar research projects as well as the contacts within the European contract law networks mentioned above the estimated number of participants is 100, of which about 50 from abroad.

Various national low-budget research seminars will be arranged.

 

6. Results

The project will result in two final reports, one written in English for an international audience and published internationally, and one in Finnish for the Finnish legal community. It will produce five monographs by senior researchers, or teams of senior researchers, and five doctoral dissertations.

As to substance, from a scientific point of view the project will be able to make a significant contribution to the development of a legal theory recognising the new features of late modern society as well as the development of the European Union. It will also deepen the legal discourse on European/national private law and consumer law.

From a practical point of view, the project can make a contribution to the legislative processes based on the European Commission Action Plan on European Contract Law. It may contribute to the understanding of the relationship between European and national regulation in a multicultural setting which is necessary both for the European as well as the national legislator.

 

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