As transnational trade has developed, national legislators and courts can exercise less control over the conduct of legal persons trading beyond their territory. National legislators and courts may also not be familiar with the needs and preferences of international actors. These developments necessitate the creation of transnational rules. Consequently, more actors have become involved in the development of private law in the European Union, i.e. the area of material law that stipulates transactions between legal persons. Accordingly, the European legislator has increasingly harmonised parts of private law.
Thus, the development of private law in the European Union entails the involvement of multiple actors, and increasingly complex processes through which private law is developed. This may be beneficial for private law for various reasons. It has been argued that Europeanisation enables Member States, the Union and other actors to learn from one another. Similarly, the development of regulatory competition, which should provide states with an additional incentive to develop rules that are attractive to foreign investors, has been defended. Yet problems may also develop as actors maintain a nationalist approach towards the development of private law. This approach, criticised as methodological nationalism, is visible also at the European level. However, the use of codification-like instruments such as the DCFR is hardly uncontroversial. The shortcomings in the debate preceding the development of the DCFR and other European measures that develop a horizontal approach, such as the since withdrawn proposal for a Common European Sales Law (hereafter: ‘CESL’) and Directive 2011/83 on consumer rights, have not helped to decrease controversy. These potential benefits and problems give rise to the main question in this book: is the involvement of multiple actors in the development of European private law problematic, or can it also be beneficial for European private law?
The answer this question this book will rely on theories that have taken the coexistence of actors in the European Union as a starting point, most prominently multilevel governance, discussed in paragraph 1.2 and legal pluralism, discussed in paragraph 1.3. Paragraph 1.4. will compare multilevel governance and pluralism perspectives.