Contributors |
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xi | |
Series Editor's Foreword |
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xiii | |
Table of Cases |
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xv | |
Table of Domestic Legislation |
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xvii | |
Table of EC Legislation |
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xxi | |
Table of International Legislation and Principles |
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xxv | |
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1 The Spectre of a European Contract Law |
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1 | (4) |
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2 Harmonisation of European Contract Law: The State We Are In |
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5 | (26) |
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5 | (9) |
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II. Why Seek to Create a European Contract Law? |
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14 | (5) |
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1. Increase in Cross-border Transactions |
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14 | (1) |
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2. Differences in Contract Law as a Barrier to Trade |
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14 | (1) |
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3. The Growth in Standard Form Contracts and the Growing Use of Boilerplate Clauses |
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15 | (2) |
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4. National Laws Unsuitable for International Transactions |
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17 | (1) |
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5. The Growth of International Commercial Arbitration |
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18 | (1) |
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6. National Laws Cannot Solve the Problems which Currently Confront Those Who Enter International Transactions |
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18 | (1) |
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III. Why Object to the Creation of a European Contract Law? |
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19 | (9) |
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1. Divergent Laws Do Not Act as a Barrier to Trade |
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21 | (3) |
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2. Such Problems as Do Exist Do not Demand the Creation of a European Contract Law |
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24 | (2) |
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3. The Disadvantages of Harmonisation |
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26 | (1) |
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4. The Virtue of Diversity |
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27 | (1) |
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28 | (3) |
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3 English Law Reform and the Impact of European Private Law |
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31 | (8) |
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I. The Impact of Community Law |
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31 | (6) |
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II. The Impact of Domestic European Laws |
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37 | (2) |
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4 The Ideal of Codification and the Dynamics of Europeanisation: The Dutch Experience |
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39 | (32) |
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I. The New Dutch Civil Code |
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39 | (3) |
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1. Recodification, not Reform |
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39 | (1) |
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2. Substantive Innovations |
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40 | (1) |
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3. The Main Characteristics of the New BW |
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41 | (1) |
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II. The Harmonisation of Contract Law |
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42 | (6) |
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1. Directives and the New Code |
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42 | (1) |
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2. Example 1: Standard Terms |
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43 | (2) |
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3. Example 2: Time-sharing |
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45 | (1) |
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4. Example 3: Consumer Sales |
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45 | (3) |
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III. Codification and Harmonisation |
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48 | (4) |
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IV. The CFR as Codification |
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52 | (6) |
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1. The EC's Action Plan; the Way Forward |
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52 | (1) |
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2. Codification in a Substantive Sense |
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53 | (4) |
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3. National Coherence v European Coherence |
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57 | (1) |
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V. The Way Forward for National Legislators: Three Codification Strategies |
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58 | (11) |
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59 | (4) |
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63 | (4) |
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67 | (2) |
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69 | (2) |
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5 Contract Law Reform: The German Experience |
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71 | (18) |
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I. The Modernisation of the Law of Obligations Act |
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71 | (3) |
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II. Remedies for Breach of Duty |
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74 | (4) |
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III. Liability for Non-conformity in the Law of Sale |
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78 | (3) |
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IV. Prescription (or Limitation) |
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81 | (2) |
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83 | (6) |
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6 Constitutional IssuesHow Much is Best Left Unsaid? |
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89 | (16) |
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89 | (1) |
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II. Constitutional Ground Rules and Practical Policitics |
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90 | (2) |
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III. The Rise of 'Competence Anxiety' |
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92 | (3) |
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IV. The Commission's Communications and Questions of Legal Competence |
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95 | (2) |
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V. Three Reasons for the Commission's Reticence |
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97 | (6) |
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103 | (2) |
7 The European Community's Competence to Pursue the Harmonisation of Contract Lawan Empirical Contribution to the Debate |
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STEFAN VOGENAUER & STEPHEN WEATHERILL |
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105 | (44) |
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105 | (1) |
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II. The Quiet Evolution of European Contract Law |
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106 | (2) |
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III. The Commission's Trio of Communications |
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108 | (5) |
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IV. Establishing Competence: the Perceived Views of European Business |
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113 | (23) |
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1. Previous Attempts to Evaluate the Attitudes and Expectations of Market Participants towards a European Contract Law |
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114 | (3) |
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2. The Business Survey Conducted in Early 2005: Respondents and Methodology |
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117 | (2) |
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119 | (17) |
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V. Conclusions: Where To Go Next |
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136 | (4) |
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Appendix A: Background Information |
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140 | (3) |
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Appendix B: Questionnaire |
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143 | (6) |
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8 Harmonisation of and Codification in European Contract Law |
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149 | (22) |
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I. Contract Law between General and Special Rules |
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149 | (3) |
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II. Freedom of Contract and Market Regulation |
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152 | (4) |
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III. New Scenarios of Contract Law |
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156 | (2) |
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IV. Recodification Initiative: from 'Decodification' to 'Recodification' |
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158 | (11) |
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169 | (2) |
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9 Contracts and European Consumer Law: an OFT Perspective |
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171 | (14) |
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171 | (1) |
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II. Contracts and the Harmonisation of Competition Law |
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172 | (1) |
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III. Contracts and the Harmonisation of Consumer Law |
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173 | (10) |
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1. Unfair Terms in Consumer Contracts |
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174 | (3) |
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2. The Unfair Commercial Practices Directive |
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177 | (3) |
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3. Consistency of Law Enforcement |
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180 | (3) |
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183 | (2) |
10 The Commission's Communications and Standard Contract Terms |
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185 | (12) |
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I. European Private Law and Standard Terms and Conditions |
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185 | (2) |
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II. The Commission's Communications from the Viewpoint of Standard Terms and Conditions in B2B Contracts |
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187 | (4) |
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III. The Relation to Lex Mercatoria and the Work of Non-governmental Organisations |
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191 | (2) |
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IV Elimination of Legal Obstacles to the Use of EU-Wide Standard Terms and Conditions |
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193 | (2) |
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195 | (2) |
11 Non-Legislative Harmonisation: Protection from Unfair Suretyships |
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197 | (10) |
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I. The Advantages of non-legislative Harmonisation |
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197 | (1) |
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II. Unfair Suretyships and Case-law Convergence |
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198 | (3) |
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III. 'Cryptotypes' in Unfair Suretyship Law |
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201 | (1) |
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IV. Disparity of Surety Protection Standards in Europe |
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202 | (1) |
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V. Harmonisation of Standards of Protection through Horizontal Effect of Fundamental Rights and Constitutional Principles? |
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203 | (4) |
12 Harmonisation of European Insurance Contract Law |
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207 | (28) |
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207 | (5) |
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II. History of European Insurance Contract Law |
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212 | (8) |
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1. First Generation of Insurance DirectivesFreedom of Establishment |
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213 | (1) |
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2. The Directive Proposal of 1979/80 |
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214 | (2) |
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3. Four Major Judgments of the European Court of Justice |
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216 | (1) |
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4. Second Generation of Insurance DirectivesFreedom to Provide Services |
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217 | (1) |
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5. Third Generation of Insurance DirectivesCompletion of the Single Market |
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218 | (2) |
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III. Current Status of European Insurance Contract Law |
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220 | (3) |
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220 | (1) |
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2. Law Applicable to Insurance Contracts |
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221 | (1) |
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222 | (1) |
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IV. Model of an Optional European Contract Act |
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223 | (3) |
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V. Reactions to a Harmonised European Insurance Contract Law |
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226 | (7) |
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1. Views on the Current Status of European Insurance Contract Law and a Possible Optional Instrument |
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226 | (4) |
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2. Possible Contents of an Optional Instrument |
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230 | (2) |
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232 | (1) |
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VI. Pros and Cons of a Possible Harmonisation |
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233 | (1) |
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233 | (1) |
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233 | (1) |
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234 | (1) |
13 European Contract Law What Does It Mean and What Does It Not Mean? |
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235 | (10) |
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235 | (1) |
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II. What is an Optional Instrument in the Area of European Contract Law and What Is It Not? |
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236 | (5) |
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1. The Debate around Optional Instruments |
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236 | (2) |
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2. Relationship with Private International Law and the Legal Nature of the Optional Instrument |
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238 | (2) |
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3. Contents and Scope of an Optional Instrument |
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240 | (1) |
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III. The Common Frame of Reference |
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241 | |
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1. Objectives of the Common Frame of Reference |
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242 | (1) |
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2. The Preparation of the Common Frame of Reference |
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243 | |
14 Harmonisation of European Contract Lawthe United Kingdom Government's Thinking |
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BARONESS ASHTON OF UPHOLLAND |
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245 | (4) |
15 Concluding Observations |
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249 | (4) |
Index |
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253 | |