CONTEXT, CLAIM, ARGUMENT

Regulation and standardisation are conceptually and logically dependent on one another: without regulation no standardisation, and without standardisation no regulation. Regulation can take different forms, as standardisation can. Regulation may be legally binding or not, and may be public or private or both. Whoever is responsible for it, regulation is unthinkable without a particular purpose. Standardisation de-individualises whatever phenomenon is submitted to standardisation – a product, a service, the addressee of the standardisation, the substance or the procedure, even a technology. Contract is Janus-faced: contracts can be subject to standardisation, usually through standard terms, or they can be subject to individual negotiations and end in tailor-made rules for the parties. Contracts are bound to a regulatory purpose, which differs according to whether the contract is standardised or individualised. The purpose can be private, public or private/public.

My perspective is a European transnational one. Contract law is under regulatory siege, but the question is what remains of consent as the basis for contract law? The ‘elephant in the room’ is the issue of the public interest vs. the private interest. Who is best suited to promote public interests through contract – the public regulator who narrows the freedom of the contracting parties through mandatory standards, or the private regulator, in spite of their self-interest in contracts that are supposed to neglect public interests? Or is the engagement of both the public and the private needed? The standard assumption seems to be that the public regulator is better suited to promote public interests, being equated with the ideal of the Western democratic nation state. In private law beyond the nation state, there is no democratic regulation. What remains is the extraterritoriality or the external extension of national public regulation. The intellectual umbrella is the law and theory of transnational law. However, there are surface and below-surface cracks in the well-established patterns of discourse. There is doubt as to the wisdom of the public regulator, not only with regard to the feasibility of achieving public interest through contract regulation, but also, and much more deeply, the political and economic implications that result from the instrumentalisation and functionalisation of contract law. If contract can be instrumentalised and functionalised for public interests, then contract can also be used for any other political purpose, both ‘good’ and ‘bad’.