International Workshop on Default Rules in Private Law Oxford, 24 & 25 March 2023

Convenors: Birke Häcker (Bonn) and Johannes Ungerer (Oxford)

In late March 2023, Professor Birke Häcker (Schlegel Chair in Civil Law, Common Law and Comparative Law at the University of Bonn and until the end of 2022 Director of the IECL) and Dr Johannes Ungerer (Erich Brost Lecturer in German Law and EU Law at the IECL) convened an international workshop on the topic of ‘Default Rules in Private Law’. The event was organised under the auspices of the IECL and held at Brasenose College. Default rules are legal rules that apply where and insofar as nothing else has been agreed or provided by the relevant parties; in contrast to mandatory rules, the parties may derogate from default rules by making their own arrangements. The aim of the workshop was to explore default rules in various areas of private law and from a comparative perspective. It is envisaged that the proceedings will be published in a collective volume in due course.

Professor Birke Häcker set the scene with a comparative introduction to default rules. She outlined the idea behind the collaborative project and highlighted some of the recurring themes and questions to be addressed at the workshop. These included the nature and functions of default rules, the very different forms default rules can take, and on what they are – or ought to be – modelled. Methods and mechanisms of generating default rules were then discussed by Professor Florian Möslein (University of Marburg). His focus was on ‘digitizing defaults’ in the context of online platforms, which increasingly seek to set the rules for parties operating on the platforms by displacing the otherwise applicable legal defaults. Professor Alexander Hellgardt (University of Regensburg) addressed the regulatory dimension of default rules in more detail. He looked at both the burden of ‘opting out’ of defaults and the content of defaults as means of regulation in private law. Turning to the supranational level, Professor Jürgen Basedow (Emeritus Director at the Max Planck Institute for Comparative and International Private Law, Hamburg) considered the role of default rules for European integration and the EU Internal Market. More specifically, he discussed the relevance and purposes of default rules that exist in EU private law and whether the scope of such rules could usefully be increased. Taking the perspective of behavioural economics, Dr Geneviève Helleringer (IECL Lecturer in French Law and Business Law) subsequently presented on the importance of defaults in light of the bounded rationality of humans. She explored various biases which may affect decision-making and can be counteracted by suitably designed defaults. Changing the perspective to how the judiciary sees and deals with default rules, Lord Sales (Justice of the UK Supreme Court) offered insights on default rules in the Common Law. He shed light on substantive rules as well as precedent and demonstrated just how ubiquitous the phenomenon is and how many shades of meaning and forms of operation the ‘default rules’ mechanism can take. The subsequent discussion particularly benefited from contributions by two former Law Commissioners, Professor Jack Beatson (formerly Lord Justice of Appeal; Emeritus Professor, University of Cambridge) and Professor Hugh Beale (Emeritus Professor, University of Warwick; IECL Visiting Research Fellow), who juxtaposed the legislative perspective on the use and creation of default rules.

Investigating default rules in specific areas of private law, Professor John Cartwright (Emeritus Professor at the University of Oxford) discussed the nature and function of defaults in contract law. He shed light on the role of default rules for contracts in the Common Law tradition and for the various types of ‘special’ contracts in Civilian jurisdictions, using the example of France. Subsequently, Professor Simon Whittaker (University of Oxford) focused on consumer contracts, where default rules are in fact the exception since most of the rules are mandatory. Nonetheless, he explained that even within consumer contract law default rules played a number of different roles and explored this, inter alia, with respect to the scope and application of the law governing unfair contract terms. The great significance of default rules in the area of commercial and corporate finance law was addressed by Professor Louise Gullifer (University of Cambridge). She elucidated the sources, purposes, and design of default rules as they underpin, support and enhance the crucial role of private autonomy in the commercial context. Professor Gregor Christandl (University of Graz) dealt with defaults in succession law. Their relevance was highlighted mainly with regard to the rules on intestacy and the construction of wills. Professor Alan Bogg (University of Bristol) continued the discussion with his presentation on the nature and function of default rules in employment law. He discussed different trends regarding the role of defaults for employment contracts and more widely in connection with the transformation of the employment status we are witnessing at the moment. Turning to the law of civil procedure, Professor Giesela Rühl (Humboldt University Berlin) argued that one can often perceive supposedly mandatory rules in national civil procedure as defaults since party autonomy allows the parties to choose whether, where and how to litigate. On the other hand, she argued that in arbitration the flexibility provided by defaults appears increasingly limited. The closing presentation was delivered by co-convenor Dr Johannes Ungerer, who spoke on private international default rules. In the light of the complexity of cross-border cases, he addressed the relevance of defaults for both international uniform laws and the conflict of laws.

The convenors expressed – and would like to take this opportunity to reiterate – their gratitude to all participants for their papers and fruitful contributions to the discussion, to the Institute for generously supporting the event, and to Brasenose College for hosting it with characteristic warm hospitality. Two intense days of round-table discussions brought home to everybody how hugely important default rules are in academic debate and legal practice, yet how fiendishly complicated it can be to find their optimal design and mode of operation.

Johannes Ungerer