Private Law in a European and International Context
September - October 2022
S1 - Block 1
Prof. Laura Burgers
Notes
1
, Table of Contents
WEEK 1: the Evolving Concept of Private Law
Reading 1: Weinrib, The idea of Private Law 5
Reading 2: Manko, EU Competence in PL (2015) 7
Reading 3: Schmid, The Thesis of the Instrumentalisation of PL by the EU in a Nutshell (2011) 11
Reading 4: Burger, Bartl & Mak, the Evolving Concept of PL in Europe 12
Legislation 13
Tutorial 1 (06/09) 13
Lecture 1 (07/09) - Introduction 15
WEEK 2: Europeanisation of Private Law
Reading 1: Kukovec, Law & the Periphery (2015) 18
Reading 2: Baaij, Negative integration and the government’s role in the marketplace (2022) 18
Reading 3: Loos, Positive Integration 19
Legislation 20
Case-Law 20
Tutorial 2 (13/09) - Positive & Negative Integration 22
WEEK 3: Constitutionalisation of Private Law, Human Rights and Private Law
Reading 1: C. Mak, Human Rights in Private Law (2021) 25
Reading 2: Collins, On the (in)compatibility of Human Rights discourse and PL (2012) 28
Reading 3: Bartl, Additional Points for Reflection (2021) 32
Case-Law 33
Tutorial 3 (20/09) 34
WEEK 4: Private Law and Digitalization
Reading 1: Davola, Technology & regulations 37
Case-Law 40
Tutorial 4 (27/09) 41
WEEK 5: Private Law and Sustainability
Reading 1: Hinteregger, Civil Liability and the Challenges of Climate Change (2017) 43
Reading 2: Dadush, The Law of Identity Harm (2018) 47
Reading 3: Grear, Deconstructing Anthropos (2015) 48
Legislation 50
Case-Law 50
2
,WEEK 6: Private Law & Financialisation
Reading 1: Vogel, The market for virtue (2005) 52
Reading 2: Sjafjell & Mahonen, Corporate purpose and the misleading shareholder vs stakeholder
dichotomy (2022) 53
Additional reading: Comparato, Financial Crises and European Private Law (2021) 55
Tutorial 56
WEEK 7: Private Law and Globalisation
Reading 1: Pistor, Ch 1 - A Code for the Globe (2019) 58
Reading 2: Pistor, Ch 6 - Empire of Law (2019) 60
Legislation 62
Case-Law 62
Preparation for the exam 63
Questions for Week 1 63
Questions for Week 2 63
Questions for Week 3 63
Questions for Week 4 64
Questions for Week 5 64
Questions for Week 6 64
Questions for Week 7 65
3
, SYLLABUS NOTES
● Preparation for the tutorials:
○ Questions x academic texts:
■ 1) What is the main point that the author(s) aim to deliver?
■ 2) What arguments are brought forward in the text to support the position of the author?
■ 3) How does the position of this author fit into the larger academic debate?
■ 4) Think of at least one question you have in relation to this text.
■ 5) Are you convinced by the author and why (not)?
○ Questions x case law:
■ 1) Who is the claimant?
■ 2) Who is the defendant?
■ 3) What are the relevant legal facts?
■ 4) What is the central legal question / what are the central legal questions?
■ 5) What are the political and/or societal stakes behind this case?
● Aim of the tutorial this week:
○ a) the idea of private law
■ In the Weinrib reading, we find what we may consider a classical conception of private
law, which focuses foremost on the relationship between the parties rather than any
societal issues that such a relationship may raise/contribute to. It is then this classical
conception of private law that has been both historically challenged, due to the rise of
the labour movement and social democracy, as well as currently under new scrutiny in
relation to the contemporary societal challenges such as digitalization or sustainability.
These changes may be seen as functionalism (Weinrib) or instrumentalization of private
law (Schmid).
○ b) Europeanisation of private law
■ The traditional concept of private law has not been challenged only by societal
developments, but importantly also by European integration, as well as (be it to a
smaller extent) by globalisation. European integration has been in fact one of the most
transformative forces in the field of private law. In this first class we will outlines some of
the basic concepts related to the Europeanisation of private law, sketching the European
specific dynamics of instrumentalization (Manko, Schmid)
KEYNOTE
case law, legislation, lecture additions to the readings
4
September - October 2022
S1 - Block 1
Prof. Laura Burgers
Notes
1
, Table of Contents
WEEK 1: the Evolving Concept of Private Law
Reading 1: Weinrib, The idea of Private Law 5
Reading 2: Manko, EU Competence in PL (2015) 7
Reading 3: Schmid, The Thesis of the Instrumentalisation of PL by the EU in a Nutshell (2011) 11
Reading 4: Burger, Bartl & Mak, the Evolving Concept of PL in Europe 12
Legislation 13
Tutorial 1 (06/09) 13
Lecture 1 (07/09) - Introduction 15
WEEK 2: Europeanisation of Private Law
Reading 1: Kukovec, Law & the Periphery (2015) 18
Reading 2: Baaij, Negative integration and the government’s role in the marketplace (2022) 18
Reading 3: Loos, Positive Integration 19
Legislation 20
Case-Law 20
Tutorial 2 (13/09) - Positive & Negative Integration 22
WEEK 3: Constitutionalisation of Private Law, Human Rights and Private Law
Reading 1: C. Mak, Human Rights in Private Law (2021) 25
Reading 2: Collins, On the (in)compatibility of Human Rights discourse and PL (2012) 28
Reading 3: Bartl, Additional Points for Reflection (2021) 32
Case-Law 33
Tutorial 3 (20/09) 34
WEEK 4: Private Law and Digitalization
Reading 1: Davola, Technology & regulations 37
Case-Law 40
Tutorial 4 (27/09) 41
WEEK 5: Private Law and Sustainability
Reading 1: Hinteregger, Civil Liability and the Challenges of Climate Change (2017) 43
Reading 2: Dadush, The Law of Identity Harm (2018) 47
Reading 3: Grear, Deconstructing Anthropos (2015) 48
Legislation 50
Case-Law 50
2
,WEEK 6: Private Law & Financialisation
Reading 1: Vogel, The market for virtue (2005) 52
Reading 2: Sjafjell & Mahonen, Corporate purpose and the misleading shareholder vs stakeholder
dichotomy (2022) 53
Additional reading: Comparato, Financial Crises and European Private Law (2021) 55
Tutorial 56
WEEK 7: Private Law and Globalisation
Reading 1: Pistor, Ch 1 - A Code for the Globe (2019) 58
Reading 2: Pistor, Ch 6 - Empire of Law (2019) 60
Legislation 62
Case-Law 62
Preparation for the exam 63
Questions for Week 1 63
Questions for Week 2 63
Questions for Week 3 63
Questions for Week 4 64
Questions for Week 5 64
Questions for Week 6 64
Questions for Week 7 65
3
, SYLLABUS NOTES
● Preparation for the tutorials:
○ Questions x academic texts:
■ 1) What is the main point that the author(s) aim to deliver?
■ 2) What arguments are brought forward in the text to support the position of the author?
■ 3) How does the position of this author fit into the larger academic debate?
■ 4) Think of at least one question you have in relation to this text.
■ 5) Are you convinced by the author and why (not)?
○ Questions x case law:
■ 1) Who is the claimant?
■ 2) Who is the defendant?
■ 3) What are the relevant legal facts?
■ 4) What is the central legal question / what are the central legal questions?
■ 5) What are the political and/or societal stakes behind this case?
● Aim of the tutorial this week:
○ a) the idea of private law
■ In the Weinrib reading, we find what we may consider a classical conception of private
law, which focuses foremost on the relationship between the parties rather than any
societal issues that such a relationship may raise/contribute to. It is then this classical
conception of private law that has been both historically challenged, due to the rise of
the labour movement and social democracy, as well as currently under new scrutiny in
relation to the contemporary societal challenges such as digitalization or sustainability.
These changes may be seen as functionalism (Weinrib) or instrumentalization of private
law (Schmid).
○ b) Europeanisation of private law
■ The traditional concept of private law has not been challenged only by societal
developments, but importantly also by European integration, as well as (be it to a
smaller extent) by globalisation. European integration has been in fact one of the most
transformative forces in the field of private law. In this first class we will outlines some of
the basic concepts related to the Europeanisation of private law, sketching the European
specific dynamics of instrumentalization (Manko, Schmid)
KEYNOTE
case law, legislation, lecture additions to the readings
4
