Hugh Collins

The law of contract

This text sets out the modern law of contract as a coherent set of principles based upon moral values and social policies contemporary to the 1990s.

Discrimination, Equality and Social Inclusion

Although laws against discrimination have conventionally been justified and articulated according to various conceptions of equality, tensions between different notions of equality undermine the coherence of these explanations. The aim of social inclusion is proposed as part of an alternative justification for discrimination laws. As well as exploring the meaning and implications of the policy of social inclusion for discrimination laws, the extent to which the law already embodies this idea is assessed with particular reference to the scope of anti-discrimination laws, proof of discrimination, justification defences, and positive discrimination. It is concluded that the goal of social inclusion has the potential to provide a vital ingredient in a more coherent, though not uncritical, account of the aims of anti-discrimination legislation.

The Unfair Commercial Practices Directive

Abstract In an examination of the main provisions of Directive 2005/29, the solutions adopted for a number of the key design issues are assessed. First, has the Directive overcome the problem of the inherent vagueness and unpredictability of a general clause that forbids unfair commercial practices? Second, is it the case that the Directive has no implications for contract law and competition law? Third, will the provisions requiring maximal harmonisation lead to a decline in consumer protection in some Member States? Fourth, will the new comprehensive duties to provide material information prove workable and affordable by business? The article also assesses the degree of protection afforded to vulnerable groups, and the extent to which the Directive will contribute towards building coherence in European contract law. L’examen des principales dispositions de la directive 2005/29 permet d’évaluer les solutions adoptées pour un certain nombre de questions clefs. En premier lieu, la directive a-t-elle résolu le problème du flou et de l’imprévisibilité inhérents à une clause générale qui prohibe les pratiques commerciales déloyales? En second lieu, est-il exact que la directive n’a pas de conséquences sur le droit des contrats et le droit de la concurrence? En troisième lieu, les dispositions exigeant une harmonisation maximale vont-elles conduire à un déclin de la protection des consommateurs dans certains Etats membres? En quatrième lieu, est-ce que les nouvelles et vastes obligations d’information seront-elles praticables et abordables dans le milieu des affaires? L’article évalue également le degré de protection accordé aux groupes vulnérables, et la mesure dans laquelle la directive pourra contribuer à construire une cohérence en droit européen des contrats. In dieser Untersuchung zu den wichtigsten Vorschriften der Richtlinie 2005/29 werden die Lösungen zu einer Reihe konzeptioneller Kernanliegen bewertet. Hat die Richtlinie erstens das Problem der Unbestimmtheit und Unvorhersehbarkeit einer Generalklausel zum Verbot unfairer Handelspraktiken überwunden? Stimmt es zweitens, dass die Richtlinie keine Auswirkungen auf Vertrags- und Wettbewerbsrecht hat? Werden drittens die Bestimmungen, die eine Vollharmonisierung erfordern, zu einem Rückgang des Verbraucherschutzniveaus in einigen Mitgliedsstaaten führen? Werden sich viertens die neuen umfassenden Pflichten zu substantieller Information für die Praxis als praktikabel und finanzierbar erweisen? Der Beitrag befasst sich schließlich mit dem Maß an Schutz für schwächere Gruppen und der Frage, bis zu welchem Niveau die Richtlinie zur Kohärenz im europäischen Vertragsrecht beitragen wird.

The Alchemy of Deriving General Principles of Contract Law from European Legislation: In Search of the Philosopher's Stone

Abstract The Manifesto on Social Justice in European Contract Law proposes to derive European private law principles, including principles of fairness in contract law, from the acquis communautaire. This task encounters the difficulty of the predominant regulatory character of the acquis, which resists reformulation in the traditional general and abstract principles of private law. This problem cannot be ignored or dismissed, but it can be accommodated once it is appreciated that European private law will itself comprise a modern hybrid of law and regulation in its logic and modes of governance.

Redfearn v UK: Political Association and Dismissal

In Redfearn v UK the European Court of Human Rights examined the question whether dismissal for membership of a political party is compatible with freedom of association under Article 11 of the European Convention on Human Rights. The Court endorsed a strong commitment to multi-party democracy and protection of employees against the domination of the employers. This note discusses the judgment and its implications for UK law, looking at three key issues: first, whether the law of unfair dismissal provides effective protection against action that poses a threat to the enjoyment of Convention rights; second, the grounds under which an employer may justify the lawfulness of a dismissal that interferes with a Convention right; third, the available remedies against the employer when there is a breach of a Convention right.

Labour Law: The right to bargain collectively

Introduction Workers join trade unions for a purpose, usually to secure the benefits of higher wages, better conditions of employment, and greater job security, generally gained by a process of collective bargaining. As already explained in Chapter 12, by this process trade unions and employers negotiate a collective agreement to regulate working conditions and to resolve disputes at the workplace. At one time more than two-thirds of the workforce had their terms and conditions of employment regulated in this way, and even today the terms and conditions of just under one-third of workers are regulated by such agreements. Collective bargaining thus continues to be an important process, given that collective agreements are likely also to have an important indirect impact, in the sense that they will influence the terms and conditions of employment of workers beyond those immediately affected by them. In this chapter, we consider the role of the law in the collective bargaining process, the importance of which is recognised in a number of international treaties and by the law and practice of all developed countries. The role of the state in the collective bargaining process arises in a number of ways. The first relates to the need to establish collective bargaining machinery, the role of law arising where it is not possible for the parties to agree to such machinery being established voluntarily. The second is the duties on the parties in the collective bargaining process, in terms of the way they conduct themselves and the steps taken to ensure that bargaining takes place in a transparent and informed way. And the third relates to the legal status and effects of collective agreements. Are they legally binding contracts? What is their effect on the contract of employment? In Britain, conventional wisdom is based on Kahn-Freunds ideas of ‘legal abstention’ and ‘collective laissez faire ’, whereby the state was largely removed from the process of collective bargaining, which was left to the self-regulation of labour and capital. But although a profound insight, ‘collective laissez faire ’ is a principle that may tend to under-estimate the active involvement of the state in building and sustaining collective bargaining institutions in the past, and focus too narrowly on particular forms of state intervention.

The Voice of the Community in Private Law Discourse

Formalist private lawyers, with their view of law as an autonomous sphere and their emphasis upon allocative rules, tend to approach the issue of the harmonisation of private law in Europe with the following question: are the substantive rights and remedies of private individual actors sufficiently similar within each of the Member States to allow for the unification of autonomous private legal systems. Here the issue is essentially one of terminology. While sceptical voices maintain that formal private law is also a more complex matter of interrelated procedures and practices, many formalists conclude that whilst the terms of rights and remedies may differ slightly throughout Europe, there is sufficient substantive convergence to allow for harmonisation. However, lawyers of a sociological persuasion who see private law as being contingent upon society ? a process reflexively and recursively facilitating economic activities and responding to social change ? consider harmonisation to be dependent upon the harmonisation of market practices themselves. This paper, one of the most subtle of sociological contributions, tackles this issue with an innovative eye to the increasing blurring of the distinction between public and private concerns. The voice of Europe is the voice of a political collective and theoretically, under the once sacrosanct paradigm of the public/private divide, should not be heard within the ‘individualistic’ sphere of private law. However, just as national private law judges are generally responding to social concerns and are seeking to integrate collective voices within a once ‘atomised’ realm, so too are they taking note of the political voice of Europe: attempting to respond to the desire for integration and harmonisation within their jurisprudence.

European Social Policy and Contract law

Abstract This report on the sector of employment contracts and European social policy examines the proposals for initiatives and legislation contained in a recent Commission Green Paper entitled ‘Modernising labour law to meet the challenges of the 21st Century’. It describes the proposals and offers some reservations about their content. The underlying problem with the Green Paper, it suggested, is the incoherence of the policy of ‘flexicurity’.

Harmonisation of European contract law: citizenship, diversity, and effectiveness

Proposals from the European Commission to work towards greater harmonisation of contract law, and indeed private law more generally, have been described in terms that apparently distance these plans from the introduction of a code civil europa. Nevertheless, the programme for developing ‘non-sector-specific measures’ into a ‘common frame of reference’ constitutes in its fundamentals and aspirations the ambition to create a European law of contract. And the method for the construction of this code replicates the process devising the great European codes of the nineteenth century: a painstaking scholarly endeavour to find consistency and coherence in the divergent national private law systems, except that no legislative process is foreseen.

Labour Law: Nature and sources of labour law

What is labour law? What are the aims of labour law? Why is it regarded as a distinct and important field of study? One place to start thinking about these questions is the Universal Declaration of Human Rights, adopted by the United Nations in 1948. Universal Declaration of Human Rights, Article 23 (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. (2) Everyone, without any discrimination, has the right to equal pay for equal work. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. (4) Everyone has the right to form and to join trade unions for the protection of his interests. Article 23 identifies many of the characteristic aims of labour law: to secure fair access to labour markets under conditions of equal opportunity; to ensure that the conditions under which people work are just, safe, healthy, and respectful of human dignity; to require pay to be fair and sufficient for a decent standard of living; to protect job security and fair treatment at work; to permit workers to form trade unions and other representative organisations to protect their interests at work. In pursuing these aims (and others), the objects of labour law include the contract of employment between employer and worker, working conditions within organisations, relations between workers, access to employment through the labour market, and more generally measures to steer the economy with a view to promoting full employment with decent jobs. Most studies of labour law have not examined these topics dispassionately, but have rather been concerned critically to assess how far labour law achieves the central aims identified in Article 23. The case for studying this subject rests in part on the crucial economic, social and political significance of paid work in a market economy and in part on the distinctive characteristics and problems that labour law must address.