Stefan Wrbka

Introduction: Networks and Networked Governance

A much-discussed feature of the emerging global legal order has been the proliferation of so-called transnational regulatory networks. These new institutional forms consist of routinized, purposive interaction between diverse actors that share a common sphere of expertise. Such networks are of different types, some involving cooperation between public bodies, others entailing interaction between public, private and quasi-public institutional actors. These networks perform diverse functions: e.g. ‘enforcement networks’, designed to make enforcement more efficient across international borders; ‘information networks’ aimed at promoting information exchange; and, ‘harmonization networks’ setting standards and seeking uniformity in substantive and procedural normative standards.

Access to justice and collective actions ‘Florence’ and beyond

In modern societies, guaranteeing or enhancing access to justice is an important feature of legal systems. However, to support this ideal state, we must pose some questions regarding the meaning and relevance of this term: What exactly is meant by ‘access to justice’? Who shall enjoy it? And how can it be accomplished? These questions touch on various issues cutting across not only legal subjects, but different academic fields in general: In addition to law, access to justice is closely interlinked with the fields of economy, sociology and politics, just to name a few. The practical impact of the non-legal fields must not be underrated and – to a certain extent – will be borne in mind and reflected throughout this book. The main emphasis, however, will be put on current legal questions closely related to access to justice. The term ‘access to justice’ itself consists of two parts, ‘access’ and ‘justice’, which – when read together – can be seen as a kind of abbreviation. ‘Access’ often comes together with ‘equal’1 or ‘effective’.2 It embodies the older, more technical and procedural side of the overall concept: It is the question of enabling those in need to pursue their legal interests. ‘Justice’, on the other hand, has a more result-oriented meaning which should be reached through equal or effective access: The outcome of the procedure

The Notion of Consumer Under EU Legislation and EU Case Law: Between the Poles of Legal Certainty and Flexibility

The European Commission and the European Union (EU) legislator have steadily intensified their activities in the field of consumer protection to enhance business-to-consumer (B2C) transaction in the EU. This chapter aims to comment on some of these efforts. Unlike most other contributions in the field of EU consumer law it does not dive into an analysis of rights and obligations of businesses and consumers, but discusses one of the preconditions to declare consumer law applicable – the consumer notion.

The Flexibility of Law and Its Limits in Contemporary Business Regulation

Over the last three decades, the rapid pace of technological change, transformations in the composition of markets and the emergence of global production capacities and service providers have created many new opportunities for business, as well as consumers. Globalization is the new and irreversible economic reality of our age. Clearly these economic changes have contributed to the creation of new pressures on, and expectations of, those fields of law connected to the regulation of business, particularly cross-border business. Lawmakers and regulators have been compelled to respond to the new demands and challenges created by the emergence of a global economy. New expectations of law – in particular, that it be more agile or flexible in regulating the market economy – have prompted law-makers and regulators in multiple jurisdictions to adopt various novel regulatory techniques and legal forms to respond to this challenge.

The Potential and Limits of Teleological Reduction Shown with the Example of the Austrian Warranty Regime

One of the main purposes of contract law is to regulate the legal obligations between two parties to a contract. From the viewpoint of contractual parties, legal certainty is important to predict the consequences of possible ‘unwanted’ actions and events that could impair the parties’ expectations. Against this background the codification of private law rules, most notably in the form of civil codes is one of the most relevant mechanisms in civil law countries.

Comments on Legal Certainty from the Perspective of European, Austrian and Japanese Private Law

On occasion, lawmakers justify their moves with the argument of enhanced legal certainty. But what does ‘legal certainty’ mean? This chapter explains the certainty concept by taking a look at some more recent European (Union), Austrian and Japanese private law issues. In doing so, it argues that the certainty concept shows various facets that address different legal issues, comprising ideas of inter alia legal clarity, legal stability and legal peace.

The Shifting Meaning of Legal Certainty

In the context of legal modernity, the principle of legal certainty – the idea that the law must be sufficiently clear to provide those subject to legal norms with the means to regulate their own conduct and to protect against the arbitrary exercise of public power – has operated as a foundational rule of law value. As such, legal certainty has played a vital role in determining the space of individual freedom and the scope of state power. In this way, the ideal of legal certainty has been central in stabilizing normative expectations and in providing a framework for social interaction, as well as defining individual freedom and political power in modern societies. Legal certainty has been pivotal to the project of political liberalism and the ideals and aspirations of political modernity. This chapter introduces the concept of legal certainty and introduces the idea that the meaning of legal certainty has shifted.

The Dilemma of European Consumer Representation in Deliberative Networks: The Democratic Deficit in the Context of the Drafting of the Common European Sales Law

Stefan Wrbka engages with the Proposal for a Regulation on a Common European Sales Law presented by the European Commission in late 2011 in his contribution The Dilemma of European Consumer Representation in Deliberative Networks: The Democratic Deficit in the Context of the Drafting of the Common European Sales Law. Wrbka analyses this Proposal from the perspective of the role that consumer interest representation played in the drafting of the text. To be more precise it focuses on the impact the European Consumers’ Organisation (BEUC) had (and was allowed to have) in this context. The chapter covers key points of interest in this regard, such as the perceived ‘democratic deficit’ in European law making, the question of transparency of policy-making, ad hoc transnational networks installed by the Commission to craft new legislation and the role of lobbying groups and interests representatives in relation to EU consumer protection.

From Peasant to Shareholder

Today we think of group litigation as being a type of procedural exception to a general system of litigation by individual claimants. History, however, shows us that this has not always been the case. English courts in the thirteenth century routinely heard cases by groups represented by individuals – often villages or parishes represented by one of their number – without any special procedural rules or enquiry to differentiate the case from litigation between individuals. Tokugawa Japan – whose judicial system bore many similarities to the early English courts – likewise entertained claims by and against groups of litigants represented by one of their number. These were often villages represented by a headman – and like the early English courts the Tokugawa judiciary accepted these claims without any special rules to distinguish such cases from those involving individual litigants. Yeazell has suggested that over the centuries social and economic changes in England, which altered the political landscape and created a new type of group, the joint stock company, laid the groundwork for a turn towards the modern conception of group litigation. This would eventually result in the idea of a group unified for the purposes of litigation by a shared interest among its members in the case. Tokugawa Japan, like England thru the turn of the 19th century, underwent drastic social and economic change in the years between 1600 and 1868. Like England, these changes resulted in the creation of a new kind of group – the kabunakama – which was one of the main forms of business organization and a precursor to the joint stock company, whose form would be transplanted to Japan via legislative change in the late 19th century after the abandonment of the Tokugawa judicial system. Unlike the joint stock company in England, however, the appearance of the kabunakama in Tokugawa Japan did not coincide with any changes in the legal system’s approach to group litigation. Disputes involving the kabunakama, in fact, could not be heard in the Shogun’s courts. The Tokugawa legal system – despite its similar starting point in relation to group litigation and its overall similarities to the English system – never developed a separate approach to group litigation which differentiated it from cases involving individuals. This paper explores why this divergence occurred, arguing that the overall institutional framework of Tokugawa Japan and the nature of the kabunakama made a similar path of legal development to England all but impossible.