The Common European Sales Law (CESL): A Private International Law and Comparative Law Analysis
This research study examines the (in-)effectiveness of the latest EU Private Law initiative on the creation of a Common European Sales Law (CESL). It comprises four parts, which correspond to the most complex and important aspects of the CESL’s novel legal response to the problem of creating a uniform legal instrument. These reflect the four operations at the heart of the CESL’s “activation” and application: i. the selection of the CESL regime by the parties as the legal framework of their sales agreement, ii. the ascertainment of CESL’s provisions by the adjudicatory authority, iii. the impact of overriding mandatory rules and international public policy considerations on the application of the European sales law regime, and, finally, iv. the interplay between the CESL and other uniform conflicts and substantive law instruments governing international sale of goods contracts. In light of this linear examination of the instrument, the analysis showcases that, contrary to the proclamations of the EU legislator, the innovative structure of the CESL as an optional parallel legal regime does anything but safeguard the interests of contracting parties. In fact, the analysis illustrates the regulatory redundancy that comes with the continuous promulgation of international uniform sales law instruments. Granted, notwithstanding the instrument’s withdrawal by the EU Commission, the CESL cannot be consigned to history. Most obviously, it may be revived, or elements of it may be revived in modified form, and aspects of its approach have been, and will continue to be, copied in other instruments. More importantly, however, the CESL remains important as a case-study in legal harmonization. Hence, this thesis attempts, firstly, to expose both the advantages and disadvantages of a distinctive model of harmonization and the conceptual difficulties of such an approach, and, secondly, to anticipate legal developments in the area by delineating a new path for future European contract law initiatives.