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Summary

INTRODUCTION: THE CHALLENGES OF ATTRIBUTING OBLIGATIONS

In this chapter we discuss the attribution of obligations to States, IFIs and TNCs. In other words, we attempt to determine in which instances a certain duty-bearer has obligations. This issue is often discussed under ‘jurisdiction in international human rights law'. We will, however, use a more neutral expression and speak of the attribution of obligations (see infra). In the field of extraterritorial and human rights obligations of NSAs, such attribution is challenging for several reasons.

First, the scholarly community has discussed extensively the usefulness of a so-called jurisdictional clause in human rights treaties. Scholars have argued that any limits to the attribution of obligations, such as through the notion of jurisdiction, will function as a doctrinal bar for cases involving extraterritorial obligations. The first challenge or question is therefore whether we require a notion such as jurisdiction in order to limit the attribution of obligations in human rights treaties (infra, section 11.3).

Second, with respect to States, the attribution of obligation is primarily done through control over territory. The notion of State jurisdiction is grounded in territory as there is a presumption that jurisdiction is exercised throughout the State's territory. States exercise power over their territory and therefore must ensure the rights established under a given treaty. Human rights bodies and courts have found that only in exceptional circumstances can extraterritorial obligations be attributed to a foreign State. This begs the question of whether we should move beyond this traditional starting point for the attribution of obligations. The question is also particularly relevant with respect to the obligations of NSAs, considering that non-State actors do not have a territory. Their obligations thus cannot be attributed on the basis of territory.

Stepping away from territory as our starting point raises additional questions, most importantly, whether or not there should be another core basis for attributing obligations to States (infra, section 11.4), and whether this affects the traditional notion of the domestic State as the primary duty-bearer (infra, section 11.4.3). Our main argument is that we need to step away from de facto capacity (control over territory is an expression of such capacity) as a principle that determines the attribution of obligations.

Summary

INTRODUCTION

Whereas the first and second set of questions outlined at the start of (and addressed in) the previous chapter are essentially normative in character, the third set – to be discussed in this chapter – are best categorized as explanatory, since they enquire about the apparent divergences in the levels of usage or ‘attractiveness’ of different EU optional instruments and the factors behind this. It is true that, as we noted towards the end of the preceding chapter, this issue also has normative implications, as many of the arguments that make up the case for EU OIs depend in one way or another on private actors using the OIs that are enacted. But this is nonetheless a distinct type of question, which requires the elaboration of an explanatory rather than a normative framework, in order to explain why it might be that some EU OIs have apparently proved less attractive to eligible private actors (i.e. been opted into less) than others. So – for both of these reasons, in fact – the issue of usage of EU OIs is an especially important one that merits a separate analysis.

Certainly, it can be argued that some EU OIs have proven more attractive to eligible private actors than others, taking the number of ‘opt-ins’ by private actors as an indicator of attractiveness. For example, a brief comparison between the Community Trade Mark (CTM) and the European Company (SE) shows that the total number of CTMs registered with the Office for Harmonization in the Internal Market (OHIM) in its first five years of operation amounted to around 100,000, while in the first five years or so of operation of the European Company Regulation a total of 595 SEs had been registered in the whole of the EU (not to mention the EEA); and whereas the total number of CTM registrations surpassed one million in 2014, the number of SEs (albeit over a shorter period) had reached a total of 2,125 by 2014. Of course, there is no reason to expect the number of registrations of a new company form to match those of a new intellectual property right (and particularly not one suitable mainly for large businesses), but, even with this in mind, these figures do hint at a notable difference in the respective popularity of the CTM and the SE.

Summary

Introduction

Unlike German law, the Dutch law on STCs has not been celebrated as a success story. Instead, weaknesses have been detected. Accordingly, can weaknesses in Dutch law be traced to a lack of interaction between interdependent actors, in line with insights from multilevel governance?

In accordance with pluralist arguments, has the coexistence of actors contributed to the strong points of Dutch law, or could the coexistence of actors also help to improve Dutch law? Has the coexistence of national and European actors strengthened the responsiveness of the law to foreign and international actors or have Dutch actors recognised the benefits of mutual learning and regulatory competition?

Paragraph 5.2 will introduce the law on STCs and discuss the strengths and especially the weaknesses. Paragraphs 5.3–5.5 will analyse the use of codifications, blanket clauses and general principles. Paragraph 5.6. will draw a conclusion on the use of national techniques. Paragraph 5.7. will consider the use of techniques in addition to or instead of currently used techniques. Paragraph 5.8. will end with a conclusion, debating whether the coexistence of actors is beneficial or detrimental for the Dutch law on STCs, in accordance with multilevel governance and pluralist perspectives.

The law on algemene voorwaarden

The Dutch law on STCs can be found in articles 6:231 et seq BW. The blanket clause, article 6:233 sub a BW, which bans the use of unfair contract terms has led to the development of a lot of case law, especially from lower courts.

The BW is commonly considered as a successful codification. Articles 6:231 et seq BW are, however, relatively new and at some points, it has developed differently than the legislator had expected. In some respects, the regime is a success: it has enabled, and encouraged, collective negotiations on STCs.

The Dutch regime has, however, been severely criticised on the following points:

The rules on the availability of clauses

The strict interpretation of the duty to make STCs available under article 6:234 BW has been criticised as it wrongly presupposes that clauses are read prior to the contract.891After the implementation of Directive 2006/123 in articles 6:230a-c BW, possible overlap with article 6:234 BW, which imposes a stricter duty on parties, remains. Schelhaas prefers a rule that is in accordance with article 6:230a et seq BW that provides a more lenient rule.

Summary

It is impossible to meaningfully consider the power of stereotypes in mental disability law without considering the pernicious power of ‘sanism’: an irrational prejudice of the same quality and character of other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia and ethnic bigotry. Sanism pervades and infects every area of mental disability law, be it civil or criminal, or domestic or international. Based on stereotypes and stigma, it explains our laws and our court rulings on commitment law, right to treatment law, right to refuse treatment law, deinstitutionalisation law, antidiscrimination law, the whole range of criminal law issues, from competency determinations to the insanity defence to sentencing to the death penalty, and to such important meta-issues as adequacy of counsel. In the context of international human rights law, sanism is also the key to the way that mental disability law is (or is not) applied worldwide, a factor that has grown since the ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD).

There are seven major points to be considered in the context of stereotyping and human rights law in the context of persons with mental disabilities:

Using insights from multilevel governance and pluralism, this book provides an in-depth analysis of the development of European private law in the Dutch and German legal order. It focuses on the question whether the coexistence of national and European state and non-state actors is detrimental or beneficial for the predictability, consistency, accessibility and responsiveness of European private law. On the one hand, the discourse on multilevel governance draws attention to the possibility that problems may arise if interdependent actors do not sufficiently interact. This may be the case in European private law, where national and European legislators and courts have become increasingly interdependent on one another in ensuring that European private law develops predictably, consistently, accessibly, and responsively. The book analyzes the development of European private law by national and European state actors through codifications, blanket clauses, soft laws and general principles in the light of interdependence. In addition, non-state actors have played an increasingly important role in developing binding rules in European private law. This development necessitates more interaction between actors, and more attention for the potentially binding effect of privately developed rules on third parties' rights. The book accordingly develops a normative framework to determine the extent to which private actors should be able to develop binding rules, based on principles of democracy, private autonomy, and concerns for hetero-determination. On the other hand, pluralism perspectives advocate the development of European private law at different levels and jurisdictions in the light of responsiveness, regulatory competition, and opportunities for mutual learning. The book explores whether these benefits have materialized in the development of European private law, drawing attention to failed and successful instances of regulatory competition and mutual learning, and resulting innovations. The book sketches new governance techniques that may help interdependent actors take into account one another's initiatives and benefit from each other's insights, although they may also entail hetero-determination.

Summary

Introduction

This volume has asked whether the coexistence of actors in the development of European private law is beneficial or problematic. First, paragraph 11.2 will summarise the questions raised by this book. Paragraph 11.3. will discuss the role of actors. The paragraph will first turn to criticism on state-centeredness, and go on to discuss the role of actors under the GG, TFEU, and a Dutch framework. Paragraph 11.4. will turn to multilevel governance insights. The findings in the case studies will be considered, and subsequently, it will be debated whether these findings can be generalised. Paragraph 11.5. will discuss pluralist insights. The paragraph will first debate the findings in the case studies and go on to consider whether the coexistence of actors has proven beneficial more generally for European private law. Paragraph 11.6. will end with the conclusions.

Multilevel governance and pluralist insights

The book has been inspired by multilevel governance and pluralist perspectives that emphasise the coexistence and interdependence of actors. Both multilevel governance and pluralist perspectives recognise that multiple state actors have become involved in the development of European private law. Non-state actors also play an increasingly important role as the development of private law more and more involves cross-border matters and requires more expertise and organisational resources that state actors may not possess. In addition, the increasing development of alternative regulation typically presupposes the involvement of non-state actors.

Both multilevel governance and pluralist perspective recognise that interdependence has developed between both state actors from different levels and state actors and nonstate actors. These actors therefore need to take into account one another's initiatives.

Multilevel governance and pluralist perspectives further both recognise that the roles of actors are subject to change. The role of national state actors changes as competences are reallocated to the European level. The increasing complexity of problems may prompt actors at the European and at the national level to delegate tasks to non-state actors with considerable expertise, such as the IASB.

Pluralist criticism on the state-centric approach of the development of European private law give rise to questions on the role of actors in the development of European private law.

Summary

The theme of this volume, eradicating harmful stereotypes with the help of law, goes to the heart of my academic work in the past two decades. The stubbornness and the detrimental effects of gender stereotypes inspired me to search for legal norms that are available and appropriate to tackle such stereotypes. I have written extensively on this issue, in particular in relation to Article 5(a) of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). The first part of this provision entails the obligation of States Parties to effectively put an end to prejudices and all customs and practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. In the second part, States Parties are encouraged to promote a different (than traditional) understanding of the parental roles of men and women. According to the Committee of experts that supervises the implementation of CEDAW, gender stereotypes and fixed parental gender roles are root causes of discrimination against women. The elimination of all forms of discrimination against women is impossible without eradicating these causes. The Committee uses various terms to express this concern. For example, it states that stereotypes are ‘adverse cultural norms’, that they ‘constitute barriers’, and that they form ‘the most serious obstacles’, or ‘are a root cause of the disadvantaged position of women’. Sometimes the Committee considers stereotypes to be discriminatory perse. In its Concluding Observations on Burundi in 2008, the Committee adopted both approaches in one comment.

It is certainly positive that the CEDAW Committee has systematically stressed the discriminatory nature of gender stereotypes, and that this insight has also been accepted elsewhere in international law, as well as in case law of for example the Supreme Court of the United States. However, this does not mean that gender stereotypes are always recognised and revealed by the parties in legal procedures in which a violation of women's human rights is at stake, or by the judges that adjudicate such cases. Recognition of stereotyping is often also lacking in legal procedures that revolve around women's right to equality or nondiscrimination.

Summary

Introduction

The case studies found that the coexistence of actors had generally not benefited the quality of the law on STCs, contrary to pluralist arguments. However, the previous chapters have indicated that instances of innovation and mutual learning have developed, and regulatory competition may provide actors with an additional incentive to develop innovative rules. In addition, European initiatives – especially initiatives from non-state actors, and, otherwise, especially in already internationalised fields – have prompted actors to take into account the interests of non-national actors. It follows that in some cases, the coexistence of actors has proven beneficial. It has been argued that the development of a framework, based on the principle of private autonomy and concerns of Fremdbestimmung where national state actors retain a prominent role, will likely help to improve European private law.

According to pluralist perspectives, the coexistence of actors may also strengthen European private law developed through national techniques. However, the case studies indicated that the use of national techniques has not been amended to take into account interdependence. Especially in the Dutch case study, the lack of interaction between courts has led to inconsistency and unpredictability. Both in German and the Dutch legal order, the restraint of national and European actors has limited the responsive development of the acquis. More generally, national and European actors have adopted a narrow approach in the debate on the further development of European private law. This chapter asks whether these problems and the lack of benefits are visible more widely, or whether the coexistence of actors has benefited European private law developed through national techniques.

Paragraph 9.2 will discuss the use of codifications and paragraph 9.3 will turn to the use of soft laws. Subsequently, paragraph 9.4 will consider blanket clauses and paragraph 9.5 will analyse the use of general principles. Paragraph 9.6 will draw general conclusions.

The use of codifications in a multilevel legal order

Dutch and German actors have not taken interdependence as a starting point in their interaction with other actors or in the development of the law on STCs through codifications and problems of responsiveness, consistency and predictability have been signalled in the case studies.

Summary

Stereotyping has definitely appeared on the radar of the European Court of Human Rights (ECtHR, the Court or the Strasbourg Court). In several recent rulings, notably the Grand Chamber judgments of Konstantin Markin v Russia and Aksu v Turkey, the Court has taken issue with gender-based and race-based stereotypes. Konstantin Markin concerned Russia's refusal to grant parental leave to a military serviceman. This is an important ruling, because the Court held that the state could not rely on gender stereotypes to justify differences in treatment between men and women under Article 14 of the European Convention on Human Rights (ECHR). Aksu concerned government-sponsored publications, which included derogatory stereotypes about Roma. The importance of this judgment, as seen from an anti-stereotyping perspective, is that the Court explicitly recognises that stereotyping can negatively impact the right to private life (Article 8 ECHR).

In this chapter, rather than comprehensively analysing and critiquing the ways in which the Strasbourg Court addresses (and fails to address) stereotypes, we zoom in on the Court's case law regarding domestic violence against women. In a volume dedicated to exploring the ways in which stereotyping is a human rights issue, violence against women (VAW) – and specifically domestic violence against women – is a particularly salient and thorny issue. International human rights law – as will be discussed further below – recognises that there are close links between pervasive gender stereotyping and VAW. The issue remains surprisingly under-examined in the ECtHR literature, however.

This chapter argues that the Court should address gender stereotyping in domestic violence cases and in that respect follow international human rights law. That is not to say that we think the Strasbourg Court can eliminate gender stereotypes. We think of the Court as one actor in a larger effort directed against the harmful gender stereotypes underpinning domestic violence. This effort is organised on many fronts, both legal and non-legal (such as via media, education and politics). Yet the only way the Court can play its role, this chapter further argues, is by carefully crafting legal reasoning that names and contests stereotypes. In naming gender stereotypes, the Court will be addressing one of the factors that structurally contributes to domestic violence and ineffective state responses.

Summary

Introduction

The previous chapter has analysed the use of national techniques in the multilevel legal order. In accordance with the findings in the case studies, actors did not take interdependence as a starting point in the development of European private law through national techniques. Accordingly, it has been argued that European actors, rather than emphasising top-down techniques, should develop a combination of top-down and bottom-up techniques, and some areas of law have already been characterised as a hybrid of top-down and bottom-up approaches. The case studies indicated that some additional techniques may contribute to the comprehensibility of the law on STCs, and some techniques could foster deliberation, mutual learning and increase the predictability, consistency, accessibility and responsiveness of European private law. However, suggestions for the use of additional and alternative techniques may meet with resistance from national actors, in accordance with the normative frameworks defended in chapters 7 and 8.

The case studies have argued for more interaction between actors. Techniques in addition to or instead of currently used techniques may facilitate more interaction between interdependent actors, in accordance with multilevel governance insights. In the light of some pluralist arguments for the development of new governance, such as comitology, this chapter will ask whether the use of additional and alternative techniques more generally are likely to foster deliberation and mutual learning. If techniques have already been widely used, this chapter will consider the use of these techniques and possible improvement. With regard to techniques that have not yet been widely used in the development of European private law, this chapter will consider their strengths and weaknesses and their potential to strengthen European private law.

This chapter does not aim to provide a comprehensive overview of techniques that could be used in addition to or instead of currently used techniques. Instead, the chapter will focus on the use of techniques that seem particularly suitable to cope with the problems detected in the use of codifications, blanket clauses and general principles. Notably, this will include techniques that have been not been considered, rejected or doubted in the case studies, such as the use of Regulations, the use of model laws, the OMC, the development of optional regimes and comitology.

Summary

Introduction

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.

Stereotypes are beliefs about groups of people. Some examples, taken from human rights case law, are the notions that 'Roma are thieves', 'women are responsible for childcare', and 'people with a mental disability are incapable of forming political opinions'. Increasingly, human rights monitoring bodies - including the European and inter-American human rights courts, the Committee on the Elimination of Discrimination against Women, and the Committee on the Elimination of Racial Discrimination - voice concerns about stereotyping and warn States not to enforce harmful stereotypes. Human rights bodies thus appear to be starting to realise what social psychologists discovered a long time ago: that stereotypes underlie inequality and discrimination. Despite their relevance and their legal momentum, however, stereotypes have so far received little attention from human rights law scholars. This volume is the first one to broadly analyse stereotypes as a human rights issue. The scope of the book includes different stereotyping grounds - such as race, gender, and disability. Moreover, this book examines stereotyping approaches across a broad range of supranational human rights monitoring bodies, including the United Nations human rights treaty system as well as the regional systems that are most developed when it comes to addressing stereotypes: the Council of Europe and the inter-American system.

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PART II - ACCOUNTABILITY IN INTERNATIONAL AND REGIONAL HUMAN RIGHTS LAW: PROCESSES, PRACTICE AND LIMITS

Chapter 9 - Attributing Obligations in a Multi-Duty Bearer Framework

Summary

Ius Commune Europaeum

Chapter 5 - Explanatory Framework

Summary

Part 1 - Eu Optional Instruments: Definition and Description

Chapter 5 - The Development of the Law on Algemene Voorwaarden

Summary

IUS Commune Europaeum

Frontmatter

‘My Sense of Humanity Has Gone Down the Drain’. Stereotypes, Stigma and Sanism

Summary

Bibliography

The Development of European Private Law in a Multilevel Legal Order

Frontmatter

Chapter 11 - Conclusions

Summary

The Head of the Woman is the Man. The Failure to Address Gender Stereotypes in the Legal Procedures around the Dutch SGP

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Chapter 9 - The Use of National Techniques in the Development of European Private Law

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Gender Stereotyping in Domestic Violence Cases. An Analysis of the European Court of Human Rights’ Jurisprudence

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Contents

Chapter 10 - The Use of Additional and Alternative Techniques

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Chapter 1 - Introduction

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Stereotypes and Human Rights Law

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The Development of European Private Law in a Multilevel Legal Order

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Stereotypes and Human Rights Law