Comparative Law — Overview
This theme contains three subjects, namely: Comparative and European Corporate Law, Comparative Private Law and Comparative Public Law
Comparative and European Corporate Law
Publications
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Showing key publications in this field, as selected by the author
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Show All 17 | Recent publications
J Armour and WG Ringe, 'European Corporate Law 1999-2010: Renaissance and Crisis' (2011) 48 Common Market Law Review 125 [...]
European corporate law has enjoyed a renaissance in the past decade. Fifteen years ago, this would have seemed most implausible. In the mid-1990s, the early integration strategy of seeking to harmonise substantive company law seemed to have been stalled by the need to reconcile fundamental differences in approaches to corporate governance. Little was happening, and the grand vision of the early pioneers appeared more dream than ambition. Yet since then, a combination of adventurous decisions by the Court of Justice, innovative approaches to legislation by the Commission, and disastrous crises in capital markets has produced a headlong rush of reform activity. The volume and pace of change has been such that few have had time to digest it: not least policymakers, with the consequence that the developments have not always been well coordinated. The recent 2007/08 financial crisis has yet again thrown many - quite fundamental - issues into question. In this article, we offer an overview that puts the most significant developments of this decade into context, alongside each other and the changing patterns of corporate structure in European countries.
P Davies, 'The European Private Company (SPE): Uniformity, Flexibility, Competition and the Persistence of National Laws' (2010) ECGI Working Paper 154/2010 [...]
In 2008 the European Commission put forward proposals for a European Private Company (SPE), following up on the adoption of the European Public Company legislation of 2001. Although speedy adoption of the SPE proposals was initially hoped for, subsequent negotiations among the member states have stalled, despite at least two revised drafts of the proposals having been produced by the Presidency of the European Council. This article seeks to identify the challenges posed to the national company laws of the member states by the Commission’s proposals for a ‘simple and flexible’ Community form of incorporation. It seeks to argue that the discussions among the member states have revolved mainly around the question of the appropriate role for mandatory rules in modern company law. Member states have been reluctant to see the SPE freed from mandatory rules to which their national companies are subject, because of the competition to their national laws which the SPE would generate. On the other hand, member states with few mandatory rules in their domestic law have been reluctant to see the SPE burdened with mandatory rules which do not apply to domestic companies, because otherwise their businesses will be deterred from taking up the new European form and obtaining its advantages. The article predicts that, of the possible legislative solutions to this confl ict, referring more of the rules applicable to the SPE to the national law of the state in which the SPE is registered is likely to be the dominant one, even though this will undermine both the uniformity and flexibility goals of the proposed legislation. It also considers how effective the ‘national law’ strategy is likely to be in the light of the Treaty provisions on freedom of establishment
P Davies, E Schuster and E van de Walle de Ghelcke, 'The Takeover Directive as a Protectionist Tool?' in Ulf Bernitz and Wolf-Georg Ringe (eds), Company Law and Economic Protectionism - New Challenges to Economic Integration (OUP 2010) [...]
DOI: http://dx.doi.org/10.2139/ssrn.1554616
When the European Commission first proposed a harmonised legal framework for takeovers in the EU, its aim was to facilitate takeover bids in order to create a more effi cient and competitive corporate landscape and to further the single market. In the view of the Commission, a functioning market of corporate control required rebalancing the division of powers between shareholders and management in companies facing a takeover bid. Taking the UK, EU’s most active takeover market, as a model, the Commission proposed to assign the sole decisionmaking power regarding the bid to the shareholders, with management primarily playing an advisory role. This so-called board neutrality rule, however, caused much controversy among the member states, and it was one of the main reasons for the Takeover Directive’s notoriously long adoption history. Failing to achieve consensus on this topic, the Takeover Directive was finally adopted in a “watered down” version, without a mandatory board neutrality rule. Instead, a rather complicated system of “options” was introduced, both at member state and at company level. Although it was clear that this approach would not create the same barrier-free market for corporate control the Commission originally had in mind, it was still hoped that it would be a step in this direction. At the very least, it was certainly expected that this approach would retain the status quo. This paper examines how the implementation of the Directive changed the takeover rules applicable to European companies. To that end, we analyse the pre-implementation rules regarding management’s role in takeovers in all member states, and compare them with the current legal framework. We find that, instead of facilitating the Commission’s ideal of a comprehensive, mandatory board neutrality rule, the Directive has, in aggregate, likely had an opposite effect. We argue that there are signs of protectionist motives driving member states’ choices regarding board neutrality, and we fi nd that the system of company-level choices is ineffective in its current form. We propose a simplifi ed and more coherent board neutrality rule, solely based on shareholder decision making. Acknowledging that a system allowing management to prevent unwanted bids might have advantages over a pure board neutrality rule in certain circumstances, we argue that shareholders are in a better position to decide on the optimal rules for a particular company than legislators.
ISBN: 978-0-19-959145
P Davies, R Kraakman, J Armour and L Enriques, The Anatomy of Corporate Law, Second Edition (OUP 2009) [...]
This book explains in detail how and why the principal European jurisdictions, Japan, and the United States sometimes select identical legal strategies to address a given corporate law problem, and sometimes make divergent choices. After an introductory discussion of agency issues and legal strategies, the book addresses the basic governance structure of the corporation, including the powers of the board of directors and the shareholders meeting. It proceeds to creditor protection measures, related-party transactions, and fundamental corporate actions such as mergers and charter amendments. Finally, it concludes with an examination of friendly acquisitions, hostile takeovers, and the regulation of the capital markets
ISBN: 978-0-19-956584-9
Courses
The courses we offer in this field are:
Postgraduate
BCL
Our taught postgraduate programme, designed to serve outstanding law students from common-law backgrounds
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Comparative and European Corporate Law (not offered in 2012-13)
The course consists of a comparative study of major areas of the company laws of the UK, continental Europe (in particular, Germany) and the United States as well as an assessment of the work done by the European Union in the field of company law.
The three areas or jurisdictions selected for comparative study have, collectively, had a very significant impact on the development of company law throughout the world. An understanding of these thus assists students in understanding both the content of, and influences upon, many others. The approach taken is both functional and comparative, looking at a series of core problems with which any system of corporate law must deal, and analysing, from a functional perspective, the solutions adopted by the systems in question. The course seeks to situate these solutions in the underlying concepts and assumptions of the chosen systems, as these often provide an explanation for divergences. To this end, the course begins with a contextual overview of ‘systems’ of corporate governance, which material is then applied in the following seminars on more substantive topics. Such a comparative study is intended to enable students to see their own system of company law in a new and more meaningful light, and to be able to form new views about its future development. Finally, a study of the ways in which the European Union is developing company law within its boundaries is also important, not only as illustrating, by a review of the harmonisation programme, the benefits to be derived from a comparative study in practice, but also because it shows new ways in which corporate vehicles can be developed to meet particular policy objectives.
The course assumes students have knowledge of the basic structure of corporate laws, such as would be gained from an undergraduate course (regardless of jurisdiction). MJur students who have previously studied company law in another jurisdiction may find it helpful to take Company Law at the same time.
The teaching group comprises Professor J Armour, Dr WG Ringe and Ms J Payne. Teaching consists of a combination of lectures, seminars, and tutorials. Guest lectures by visiting academics may also be given at various points.
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MJur
Our taught postgraduate programme, designed to serve outstanding law students from civil law backgrounds.
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Comparative and European Corporate Law (not offered in 2012-13)
The course consists of a comparative study of major areas of the company laws of the UK, continental Europe (in particular, Germany) and the United States as well as an assessment of the work done by the European Union in the field of company law.
The three areas or jurisdictions selected for comparative study have, collectively, had a very significant impact on the development of company law throughout the world. An understanding of these thus assists students in understanding both the content of, and influences upon, many others. The approach taken is both functional and comparative, looking at a series of core problems with which any system of corporate law must deal, and analysing, from a functional perspective, the solutions adopted by the systems in question. The course seeks to situate these solutions in the underlying concepts and assumptions of the chosen systems, as these often provide an explanation for divergences. To this end, the course begins with a contextual overview of ‘systems’ of corporate governance, which material is then applied in the following seminars on more substantive topics. Such a comparative study is intended to enable students to see their own system of company law in a new and more meaningful light, and to be able to form new views about its future development. Finally, a study of the ways in which the European Union is developing company law within its boundaries is also important, not only as illustrating, by a review of the harmonisation programme, the benefits to be derived from a comparative study in practice, but also because it shows new ways in which corporate vehicles can be developed to meet particular policy objectives.
The course assumes students have knowledge of the basic structure of corporate laws, such as would be gained from an undergraduate course (regardless of jurisdiction). MJur students who have previously studied company law in another jurisdiction may find it helpful to take Company Law at the same time.
The teaching group comprises Professor J Armour, Dr WG Ringe and Ms J Payne. Teaching consists of a combination of lectures, seminars, and tutorials. Guest lectures by visiting academics may also be given at various points.
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MSc (Master's in Law and Finance)
Comparative and European Corporate Law (not offered in 2012-13)
The course consists of a comparative study of major areas of the company laws of the UK, continental Europe (in particular, Germany) and the United States as well as an assessment of the work done by the European Union in the field of company law.
The three areas or jurisdictions selected for comparative study have, collectively, had a very significant impact on the development of company law throughout the world. An understanding of these thus assists students in understanding both the content of, and influences upon, many others. The approach taken is both functional and comparative, looking at a series of core problems with which any system of corporate law must deal, and analysing, from a functional perspective, the solutions adopted by the systems in question. The course seeks to situate these solutions in the underlying concepts and assumptions of the chosen systems, as these often provide an explanation for divergences. To this end, the course begins with a contextual overview of ‘systems’ of corporate governance, which material is then applied in the following seminars on more substantive topics. Such a comparative study is intended to enable students to see their own system of company law in a new and more meaningful light, and to be able to form new views about its future development. Finally, a study of the ways in which the European Union is developing company law within its boundaries is also important, not only as illustrating, by a review of the harmonisation programme, the benefits to be derived from a comparative study in practice, but also because it shows new ways in which corporate vehicles can be developed to meet particular policy objectives.
The course assumes students have knowledge of the basic structure of corporate laws, such as would be gained from an undergraduate course (regardless of jurisdiction). MJur students who have previously studied company law in another jurisdiction may find it helpful to take Company Law at the same time.
The teaching group comprises Professor J Armour, Dr WG Ringe and Ms J Payne. Teaching consists of a combination of lectures, seminars, and tutorials. Guest lectures by visiting academics may also be given at various points.
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People
Comparative and European Corporate Law teaching is organized by a Subject Group convened by:
John Armour: Hogan Lovells Professor of Law and Finance
in conjunction with:
Paul Davies: Allen & Overy Professor of Corporate Law
Jennifer Payne: Professor of Corporate Finance Law
Wolf-Georg Ringe: Departmental Lecturer
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Comparative Private Law
News
The Linklaters Chair in Comparative Law
The Faculty of Law is delighted to announce that the Professorship of Comparative Law, held by Professor Stefan Vogenauer, Director of the Institute of European and Comparative Law, has become the Linklaters Professorship of Comparative Law. The Professorship, which is attached to Brasenose College, has been named for the firm in recognition of Linklaters’ support for Law in Oxford [more…]
Discussion Groups
These self-sustaining groups are an essential part of the life of our graduate school. They are organised in some cases by graduate students and in others by Faculty members and meet regularly during term, typically over a sandwich lunch, when one of the group presents work in progress or introduces a discussion of a particular issue or new case. They may also encompass guest speakers from the faculty and beyond.
Publications
Showing selected publications sorted by year, then title [change this]
Showing key publications in this field, as selected by the author
Change to sort them by title | name | type OR
Show All 68 | Recent publications
2013
J Cartwright and M Schmidt-Kessel, 'Defects in Consent: Mistake, Fraud, Threats, Unfair Exploitation' in Gerhard Dannemann and Stefan Vogenauer (eds), The Common European Sales Law in Context (Oxford University Press 2013) [...]
Comparison of English law on defects in consent in the formation of a contract with German law and European private law (the proposed Common European Sales Law and the Draft Common Frame of Reference).
ISBN: 9780199678907
M Chen-Wishart, 'Legal Transplant and Undue Influence: Lost in Translation or a Working Misunderstanding' (2013) 62 International and Comparative Law Quarterly (forthcoming) [...]
Is legal transplant possible? The stark bipolarity of a ‘yes’ or ‘no’ answer attracted by such a question is much less interesting and revealing than the question: what shapes the life of legal transplants? The answer to the latter question is contingent on a wide range of variables triggered by the particular transplant; the result can occupy any point along the spectrum from faithful replication to outright rejection. This case study of the transplant of the English doctrine of undue influence into Singaporean law asks why the Singaporean courts have applied the doctrine in family guarantee cases to such divergent effect, when they profess to apply the same law. The answer requires an examination of the relationship between law and society, and between the formal and informal legal orders of the originating and the recipient society.
ISBN: 0020-5893
M Chen-Wishart and U Magnus, 'Termination, Price Reduction and Damages' in S Vogenaur, G Dannemann (eds), The Common European Sales Law and its Interaction with English and German Law (Oxford University Press 2013) (forthcoming)
2012
A Braun, 'Testamentary Freedom and its Restrictions in French and Italian Law: Trends and Shifts' in R. Zimmermann (ed), Freedom of Testation/Testierfreiheit (Mohr Siebeck 2012)
A Braun, 'Towards a Greater Autonomy for Testators and Heirs: Some Reflections on Recent Reforms in France, Belgium and Italy' (2012) Zeitschrift für Europäisches Privatrecht 461
2011
J Cartwright, '\'Choice is Good.\' Really?' (2011) 7 European Review of Contract Law 335 [...]
Discussion of the option 4 (the 'Optional Instrument') in the Commission's Green Paper on policy options for progress towards a European Contract Law for consumers and businesses (2010). [Paper first presented at SECOLA conference, Leuven, January 2011.]
ISBN: 1614-9920
2010
A Braun, 'Burying the Living? The Citation of Legal Writings in English Courts' (2010) 58 American Journal of Comparative Law 27
Simon Whittaker, 'Contracts for Services in English Law and in the DCFR' in R. Zimmermann (ed), Service Contracts (Mohr Siebeck 2010) [...]
This article explains and assess the category of 'contracts for services' in English law and its relationship to other contracts. It then compares this to the approach taken by the Draft Common Frame of Reference
Simon Whittaker (ed), Introduction to fault in product liability (Cambridge University Press 2010) [...]
This forms the introduction and general overview of the work which I also edited on the historical development of product liability in 6 European laws. It forms part of a wider AHRD project on Legal Development (the first stage of which focussed on the development of liability for fault) run by John Bell and David Ibbetson of Cambridge.
ISBN: ISBN 978-0-521-49429
A Braun, 'Judges and Academics: Features of a Partnership' in J Lee (ed), From House of Lords to Supreme Court. Judges, Jurists and the Process of Judging (Hart Publishing, Oxford 2010)
C Hodges, S Vogenauer and M Tulibacka, 'The Oxford Study on Costs and Funding of Civil Litigation' in Christopher Hodges, Stefan Vogenauer, Magdalena Tulibacka (eds), The Costs and Funding of Civil Litigation: A Comparative Perspective (Hart Publishing 2010) [...]
pp 1-184
2009
J Cartwright, S Vogenauer and S Whittaker (eds), Reforming the French Law of Obligations (Hart Publishing 2009) [...]
Edited volume of comparative reflections on the Avant-projet de réforme du droit des obligations et de la prescription, based on papers from colloquium held in March 2007. Articles by J. Cartwright at pp. 51-70 (‘Negotiation and Renegotiation: An English Perspective’), pp. 359-380 (‘Reforming the French Law of Prescription: An English Perspective’); and pp. 409-411 (Summary of discussions); jointly with S. Whittaker at pp. 425-444 (‘Translating the Avant-projet de réforme’) and translation of the Avant-projet into English (pp. 479-915, odd numbered pages). Whole volume edited by J. Cartwright, S. Vogenauer and S. Whittaker
ISBN: 9781841138053
S Vogenauer, 'The Effects of Contracts on Third Parties: the Avant-projet de réforme in a Comparative Perspective' in J Cartwright, S Vogenauer and S Whittaker (eds), Reforming the French Law of Obligations: Comparative Observations on the Avant-projet de réforme du droit des obligations et de la prescription (the ‘Avant-projet Catala’) (Hart Publishing 2009) [...]
pp. 235-268.
Simon Whittaker, '\'Termination\' for Contractual Non-performance and its Consequences: French Law Reviewed in the Light of the Avant-projet de reforme' in J. Cartwrigh, S. Vogenauer, S. Whittaker (eds), Reforming the French Law of Obligations (Richard Hart 2009)
2008
J Cartwright and M Hesselink, Precontractual Liability in European Private Law (Cambridge University Press 2008) [...]
A volume within the Common Core of European Private Law: a comparative study of the legal nature of the precontractual phase and the liability which may follow a break-off of precontractual negotiations. The study comprises specialist reports from 16 national legal systems, and other perspectives, with Editors' introduction and conclusions.
ISBN: 9780521516013
Courses
The courses we offer in this field are:
Undergraduate
FHS - Final Year (Phase III)
The degree is awarded on the basis of nine final examinations at the end of the three-year course (or four years in the case of Law with Law Studies in Europe) and (for students who began the course in October 2011 or later) an essay in Jurisprudence written over the summer vacation at the end of the second year. Note: the Jurisprudence exam at the end of the third year is correspondingly shorter. This phase of the Final Honour School includes the first and second term of the final year; the Final Examinations are taken in the third term of the final year.
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Comparative Law: Contract (not offered in 2012-13)
This course centres on a comparison of the general principles governing the law of contract in French and in English law, choosing this topic both because of its substantive interest and because it is a good place from which to embark on comparative legal studies. For this reason, the course is arranged in two parts. The first introductory part (representing one tutorial week) looks at very general features of the French legal system, especially as regards the sources of the law, and it invites comparisons with the apparently very different approaches of English law. The second part of the course (representing six tutorial weeks) looks at the French and English general laws of contract both from the point of view of their own substantive principles and as the context for the illustration and elucidation of the more general questions addressed in the first part. While the material itself is necessarily restricted, the provisions of the Code civil and examples of the case-law and juristic writing (la doctrine) are studied. Comparisons may include those drawn at the level of principle, underlying values, legal technique or practical result.
Students taking this course may come from either a common law or a civil law background, but the reading set for the course focuses on (though is not limited to) the French materials, it being assumed that the students taking the course have already undertaken studies in English general contract law. The French sources are studied in French, though there are a number of introductory works on French law and French contract law in English (including Bell, Boyron and Whittaker, Principles of French Law and Nicholas, The French Law of Contract) and articles in English comparing aspects of French and English contract law. Overall, however, the course requires a good reading knowledge of French.
The pattern of teaching will be as follows. Lectures on French contract law will be given in Michaelmas and Hilary Terms by Professor John Cartwright and Dr Solène Rowan respectively. There are seven tutorials, which will be given by Professor John Cartwright and Professor Simon Whittaker, and will normally be spread across Michaelmas and Hilary Terms. However, students taking this paper within the Diploma in Legal Studies will normally take all the tutorials in Hilary Term, since they must first take tutorials in English Contract Law in Michaelmas Term.
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Diploma in Legal Studies
A one-year sample of courses from our BA programmes, aimed only at students visiting from our partner universities.
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Comparative Law: Contract (not offered in 2012-13)
This course centres on a comparison of the general principles governing the law of contract in French and in English law, choosing this topic both because of its substantive interest and because it is a good place from which to embark on comparative legal studies. For this reason, the course is arranged in two parts. The first introductory part (representing one tutorial week) looks at very general features of the French legal system, especially as regards the sources of the law, and it invites comparisons with the apparently very different approaches of English law. The second part of the course (representing six tutorial weeks) looks at the French and English general laws of contract both from the point of view of their own substantive principles and as the context for the illustration and elucidation of the more general questions addressed in the first part. While the material itself is necessarily restricted, the provisions of the Code civil and examples of the case-law and juristic writing (la doctrine) are studied. Comparisons may include those drawn at the level of principle, underlying values, legal technique or practical result.
Students taking this course may come from either a common law or a civil law background, but the reading set for the course focuses on (though is not limited to) the French materials, it being assumed that the students taking the course have already undertaken studies in English general contract law. The French sources are studied in French, though there are a number of introductory works on French law and French contract law in English (including Bell, Boyron and Whittaker, Principles of French Law and Nicholas, The French Law of Contract) and articles in English comparing aspects of French and English contract law. Overall, however, the course requires a good reading knowledge of French.
The pattern of teaching will be as follows. Lectures on French contract law will be given in Michaelmas and Hilary Terms by Professor John Cartwright and Dr Solène Rowan respectively. There are seven tutorials, which will be given by Professor John Cartwright and Professor Simon Whittaker, and will normally be spread across Michaelmas and Hilary Terms. However, students taking this paper within the Diploma in Legal Studies will normally take all the tutorials in Hilary Term, since they must first take tutorials in English Contract Law in Michaelmas Term.
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Postgraduate
BCL
Our taught postgraduate programme, designed to serve outstanding law students from common-law backgrounds
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European Private Law: Contract
European Private Law is an emerging and dynamic subject. It concerns the gradual approximation and harmonisation of the national private laws of the European Union's Member States, one of the most fascinating contemporary developments in the law. The Europeanisation of private law has two dimensions. One is fairly imminent and extremely relevant to legal practice. It concerns the implications of existing legislation and case-law emanating from the organs of the EU for national private laws. The other is more forward-looking and rather of a scholarly nature. It relates to a number of academic proposals for common European rules and principles in the area of private law, based on thorough comparative research. Thus European Private Law combines issues from at least three branches of legal scholarship, ie European Law, (national) Private Law and Comparative Law.
The course attempts to combine these disciplines, constantly approaching particular problems from a European point of view as well as from the perspective of various national private laws, thus necessarily adopting a comparative approach. The course first considers fundamental questions relating to the desirability, the constitutional legitimacy and the feasibility of the harmonisation of Private Law in Europe. An overview of the existing state of European Private Law, the imminent developments and the long-term proposals by various groups of academics is provided. The main part of the course consists in the study of a limited number of specific substantive issues taken from one of the core areas of private law, the law of contract. These are studied, as far as possible, with reference to primary materials, ie legislation and case law, and are likely to include topics such as pre-contractual liability, formation of contract, third parties in contract, mistake, good faith, standard terms, supervening events, breach of contract and remedies. Examples from national legal systems will mainly be drawn from English, French and German law. If, however, another legal system offers an interesting and original solution this will also be taken into account.
This approach already indicates that the course does not aspire to cover the whole of contract law with all its, say, constitutional and procedural implications, in all or even the most important European legal systems, but is rather of a more topical nature. The search is for – common or diverging – solutions to legal problems arising in all legal systems (including EU law and recent proposals for further harmonisation). These are looked at both from a rather technical point of view and with respect to the underlying principles so that a balance between ‘black letter’ law and general policy issues is struck. Participants will thus be in a position to evaluate the status quo of European contract law(s), the potential for further harmonisation and the methodological implications of this process. The principal objective of the course is to enable students to acquire knowledge and understanding in the area of European Private Law and to discuss and assess critically at an advanced level the legal and policy issues arising therefrom. Participants may expect to gain a deeper understanding of the nature of contract law, basic knowledge of the major European traditions in this area of the law and the ability to master a wide range of strongly heterogeneous sources – all of which are competences and skills of increasing importance in a Europe growing together.
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MJur
Our taught postgraduate programme, designed to serve outstanding law students from civil law backgrounds.
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Comparative Law: Contract (not offered in 2012-13) (also part of the BA course)
This course centres on a comparison of the general principles governing the law of contract in French and in English law, choosing this topic both because of its substantive interest and because it is a good place from which to embark on comparative legal studies. For this reason, the course is arranged in two parts. The first introductory part (representing one tutorial week) looks at very general features of the French legal system, especially as regards the sources of the law, and it invites comparisons with the apparently very different approaches of English law. The second part of the course (representing six tutorial weeks) looks at the French and English general laws of contract both from the point of view of their own substantive principles and as the context for the illustration and elucidation of the more general questions addressed in the first part. While the material itself is necessarily restricted, the provisions of the Code civil and examples of the case-law and juristic writing (la doctrine) are studied. Comparisons may include those drawn at the level of principle, underlying values, legal technique or practical result.
Students taking this course may come from either a common law or a civil law background, but the reading set for the course focuses on (though is not limited to) the French materials, it being assumed that the students taking the course have already undertaken studies in English general contract law. The French sources are studied in French, though there are a number of introductory works on French law and French contract law in English (including Bell, Boyron and Whittaker, Principles of French Law and Nicholas, The French Law of Contract) and articles in English comparing aspects of French and English contract law. Overall, however, the course requires a good reading knowledge of French.
The pattern of teaching will be as follows. Lectures on French contract law will be given in Michaelmas and Hilary Terms by Professor John Cartwright and Dr Solène Rowan respectively. There are seven tutorials, which will be given by Professor John Cartwright and Professor Simon Whittaker, and will normally be spread across Michaelmas and Hilary Terms. However, students taking this paper within the Diploma in Legal Studies will normally take all the tutorials in Hilary Term, since they must first take tutorials in English Contract Law in Michaelmas Term.
[less]
European Private Law: Contract
European Private Law is an emerging and dynamic subject. It concerns the gradual approximation and harmonisation of the national private laws of the European Union's Member States, one of the most fascinating contemporary developments in the law. The Europeanisation of private law has two dimensions. One is fairly imminent and extremely relevant to legal practice. It concerns the implications of existing legislation and case-law emanating from the organs of the EU for national private laws. The other is more forward-looking and rather of a scholarly nature. It relates to a number of academic proposals for common European rules and principles in the area of private law, based on thorough comparative research. Thus European Private Law combines issues from at least three branches of legal scholarship, ie European Law, (national) Private Law and Comparative Law.
The course attempts to combine these disciplines, constantly approaching particular problems from a European point of view as well as from the perspective of various national private laws, thus necessarily adopting a comparative approach. The course first considers fundamental questions relating to the desirability, the constitutional legitimacy and the feasibility of the harmonisation of Private Law in Europe. An overview of the existing state of European Private Law, the imminent developments and the long-term proposals by various groups of academics is provided. The main part of the course consists in the study of a limited number of specific substantive issues taken from one of the core areas of private law, the law of contract. These are studied, as far as possible, with reference to primary materials, ie legislation and case law, and are likely to include topics such as pre-contractual liability, formation of contract, third parties in contract, mistake, good faith, standard terms, supervening events, breach of contract and remedies. Examples from national legal systems will mainly be drawn from English, French and German law. If, however, another legal system offers an interesting and original solution this will also be taken into account.
This approach already indicates that the course does not aspire to cover the whole of contract law with all its, say, constitutional and procedural implications, in all or even the most important European legal systems, but is rather of a more topical nature. The search is for – common or diverging – solutions to legal problems arising in all legal systems (including EU law and recent proposals for further harmonisation). These are looked at both from a rather technical point of view and with respect to the underlying principles so that a balance between ‘black letter’ law and general policy issues is struck. Participants will thus be in a position to evaluate the status quo of European contract law(s), the potential for further harmonisation and the methodological implications of this process. The principal objective of the course is to enable students to acquire knowledge and understanding in the area of European Private Law and to discuss and assess critically at an advanced level the legal and policy issues arising therefrom. Participants may expect to gain a deeper understanding of the nature of contract law, basic knowledge of the major European traditions in this area of the law and the ability to master a wide range of strongly heterogeneous sources – all of which are competences and skills of increasing importance in a Europe growing together.
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People
Comparative Private Law teaching is organized by a Subject Group convened by:
John Cartwright: Professor of the Law of Contract
in conjunction with:
Alexandra Braun: CUF Lecturer
Angus Johnston: CUF Lecturer
Stefan Vogenauer: Linklaters Professor of Comparative Law
Andreas von Goldbeck-Stier: DAAD Lecturer in German and European Union Law
Simon Whittaker: Professor of European Comparative Law
Also working in this field, but not involved in its teaching programme:
Maris Köpcke Tinturé: Fellow in Law, Worcester College (Lecturer in Law, Brasenose College)
Dorota Leczykiewicz: Leverhulme Trust Early Career Fellow
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Comparative Public Law
Publications
Showing selected publications sorted by year, then title [change this]
Showing key publications in this field, as selected by the author
Change to sort them by title | name | type OR
Show All 8 | Recent publications
D O'Brien and Wheatle, 'Post-Independence Constitutional Reform In The Commonwealth Caribbean And A New Charter Of Fundamental Rights And Freedoms For Jamaica' [2012] Public Law 683 (forthcoming)
Courses
The courses we offer in this field are:
Postgraduate
BCL
Our taught postgraduate programme, designed to serve outstanding law students from common-law backgrounds
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Judicial protection against unlawful (and sometimes lawful) legislative and administrative acts or rules is of concern to individuals and companies in a variety of contexts. This course covers the central aspects of procedural and substantive judicial review under the public law of England, France and the European Union. The course will consider these issues against the constitutional framework which exists in the three systems. Throughout the course the emphasis will be on making comparisons between the different systems. To facilitate this each of the topics studied will be analysed within the same week's work.
The principal course objective is to enable students to acquire knowledge and understanding of the law in this area, and to be able to discuss at an advanced level elements of public law as they are evolving in England, France, and in the EU.
It is possible to undertake the course exclusively on the basis of English language materials, but the ability to read French is an advantage, since some of the secondary sources on French law are only available in the French language. There are, however, translations of the French case law used in the course.
Advice on this and other aspects of the course is available from the course convenor, Professor P P Craig (St. Johns College). The course is taught by Professor P P Craig, S. Boyron and Dr A Young.
Teaching is primarily through lectures and seminars in Michaelmas and Hilary terms. Tutorials will be available in Trinity Term. The structure of the course is as follows. In Michaelmas Term there will be lectures which deal with the central aspects of procedural and substantive review in the three systems. The lectures are designed to lay the foundations for eminar discussion that will take place in Hilary Term, and the first half of Trinity Term. The lectures and seminars will cover the following topics: the constitutional foundations of the three systems; procedural review; review for jurisdictional error; improper purposes; irrationality; proportionality; legitimate expectations; equality; and fundamental rights; damages ctions, including damages for losses caused by lawful governmental action.
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MJur
Our taught postgraduate programme, designed to serve outstanding law students from civil law backgrounds.
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Judicial protection against unlawful (and sometimes lawful) legislative and administrative acts or rules is of concern to individuals and companies in a variety of contexts. This course covers the central aspects of procedural and substantive judicial review under the public law of England, France and the European Union. The course will consider these issues against the constitutional framework which exists in the three systems. Throughout the course the emphasis will be on making comparisons between the different systems. To facilitate this each of the topics studied will be analysed within the same week's work.
The principal course objective is to enable students to acquire knowledge and understanding of the law in this area, and to be able to discuss at an advanced level elements of public law as they are evolving in England, France, and in the EU.
It is possible to undertake the course exclusively on the basis of English language materials, but the ability to read French is an advantage, since some of the secondary sources on French law are only available in the French language. There are, however, translations of the French case law used in the course.
Advice on this and other aspects of the course is available from the course convenor, Professor P P Craig (St. Johns College). The course is taught by Professor P P Craig, S. Boyron and Dr A Young.
Teaching is primarily through lectures and seminars in Michaelmas and Hilary terms. Tutorials will be available in Trinity Term. The structure of the course is as follows. In Michaelmas Term there will be lectures which deal with the central aspects of procedural and substantive review in the three systems. The lectures are designed to lay the foundations for eminar discussion that will take place in Hilary Term, and the first half of Trinity Term. The lectures and seminars will cover the following topics: the constitutional foundations of the three systems; procedural review; review for jurisdictional error; improper purposes; irrationality; proportionality; legitimate expectations; equality; and fundamental rights; damages ctions, including damages for losses caused by lawful governmental action.
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People
Comparative Public Law teaching is organized by a Subject Group convened by:
Paul Craig: Professor of English Law
in conjunction with:
Simon Whittaker: Professor of European Comparative Law
Alison L Young: CUF Lecturer
Also working in this field, but not involved in its teaching programme:
Michal Bobek: Research Fellow
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