Ökonomische Analyse des Rechts

Transcription

1 Ökonomische Analyse des Rechts Herausgegeben von P. Behrens, Hamburg, Deutschland T. Eger, Hamburg, Deutschland M. Holler, Hamburg, Deutschland C. Ott, Hamburg, Deutschland H.-B. Schäfer, Hamburg, Deutschland S. Voigt (schriftführend), Hamburg, Deutschland

2 Die ökonomische Analyse des Rechts untersucht Rechtsnormen auf ihre gesellschaftlichen Folgewirkungen und bedient sich dabei des methodischen Instrumentariums der Wirtschaftswissenschaften. Sie ist ein interdisziplinäres Forschungsgebiet, in dem sowohl Rechtswissenschaftler als auch Wirtschaftswissenschaftler tätig sind und das zu wesentlichen neuen Erkenntnissen über Funktion und Wirkungen von Rechtsnormen geführt hat. Die Schriftenreihe enthält Monographien zu verschiedenen Rechtsgebieten und Rechtsentwicklungen. Herausgegeben von Professor Dr. Peter Behrens Professor Dr. Thomas Eger Professor Dr. Manfred Holler Professor Dr. Claus Ott Professor Dr. Hans-Bernd Schäfer Professor Dr. Stefan Voigt Universität Hamburg, Fakultät für Rechtswissenschaft und Fakultät für Wirtschafts- und Sozialwissenschaft

3 Alexander J. Wulf Institutional Competition between Optional Codes in European Contract Law A Theoretical and Empirical Analysis

4 Alexander J. Wulf Berlin, Germany Doctoral thesis Bucerius Law School, Hamburg, 2013 (revised version). Supported by a grant from the Friedrich Naumann Foundation. ISBN DOI / ISBN (ebook) The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at Library of Congress Control Number: Springer Gabler Springer Fachmedien Wiesbaden 2014 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein. Printed on acid-free paper Springer Gabler is a brand of Springer DE. Springer DE is part of Springer Science+Business Media.

5 Acknowledgements The first version of this text was accepted as a doctoral thesis by the Bucerius Law School Hamburg. In the study presented in this book my aim is to further develop and test a theory on which I had begun to work some years previously in the course of my studies at the Bucerius Law School and during a research visit to the International Institute for the Unification of Private Law in Rome. I then continued to pursue my investigations while I was studying at the London School of Economics. I would especially like to thank Prof. Dr. Hans-Bernd Schäfer of Bucerius Law School for supervising this project and tutoring me throughout my research. He encouraged me to develop a personal research interest in the field of empirical law and economics that I have decided to continue pursuing in the future. I would also very much like to thank Prof. Dr. Florian Faust of Bucerius Law School. When I asked him for advice during a challenging phase of my research project he took the time to advise me immediately despite his busy research agenda. I am furthermore very grateful to Prof. Dr. Stefan Vogenauer of the Institute of European and Comparative Law at the University of Oxford for enabling me to support his research. The statistical analysis presented in this book is based on data collected during my work as a research assistant for his project Civil Justice and Choice of Contract Law: A Business Survey. 1 I very much appreciate the valuable academic experience I gained at his institute. I would also like to express my gratitude to Prof. Dr. Stefan Voigt of the Institute of Law and Economics at the University of Hamburg for publishing this book in his series and being generous with his support. I would like to thank Prof. 1 The descriptive results of this survey are published in: Vogenauer and Hodges, 2014.

6 VI Clifford Larsen of the Bucerius Law School for stimulating my interest in legal research and Prof. Dr. Ewoud Hondius of Utrecht University for wakening my interest in European contract law. I am also grateful to Professor Shoko Suzuki of Kyoto University for supporting my international research endeavors. With her kind support I was able to broaden my research expertise to include qualitative approaches. I would like to thank the Friedrich Naumann Foundation for funding my entire doctoral research and the presentation of a paper at the Western Empirical Legal Studies Conference at University of California, Los Angeles (UCLA) School of Law. And finally I would like to thank the Bucerius Law School for funding a visit to the Agora of the Association of Transnational Law Schools at New York University (NYU) School of Law to present my work in 2010.

7 Table of Contents Abstract... XV List of Formulas... XVII List of Illustrations... XVII List of Tables... XVII List of Abbreviations... XIX Introduction... 1 Part One: Theoretical Framework 1. The Debate on an Optional European Contract Law Political Developments in European Contract Law The Competence of the European Union to Adopt an Optional European Contract Law Article 81 TFEU Article 114 TFEU Article 352 TFEU Article 114 TFEU as the Legal Basis for the CESL The German Bundestag s Subsidiarity Objection Need for an Economic and Empirical Justification to Establish the EU s Competence to Adopt an Optional European Contract Law... 41

8 VIII 1.3 Empirical Research on European Contract Law Requests for Empirical Research Previous Empirical Research Academic Research Research Conducted by the Commission of the European Union The European Commission s Impact Assessment Accompanying the Proposal for a Regulation on a Common European Sales Law Opportunity Costs for Intra-EU Trade Transaction Costs at Company Level and Cumulative Transaction Costs Economic Impact of the Policy Option Regulation setting up an Optional Common European Sales Law Assessment of the IA The Lack of Formal Statistical Analysis on European Contract Law The Theory of Institutional Competition in European Contract Law Definition of Institutional Competition The Law Market and the Legal Framework for Institutional Competition Limitations to the Theory of Institutional Competition The Impact of Institutional Competition on Member States and the EU The Effect of Harmonization on Institutional Competition

9 2.6 Relevant Insights from the Theory of Institutional Competition for an Optional European Contract Law IX 3. An Optional European Contract Code in the Institutional Competition between European Contract Laws The Economics of a European Contract Law The European Market for Contract Laws Creeping Codification The Theory of Transaction Costs for the Choice of Law Information Costs Suboptimal Choice of Law Costs The Relationship between Information Costs and Suboptimal Choice of Law Costs The Theory of Legal Order Centralized Order Decentralized Order Knowledge and Order The Relationship between Centralized and Decentralized Order Competition for Innovation The Supply Side The Demand Side The Relationship between the Supply Side and the Demand Side The European Contract Law Centralized Order A Single Contract Law Decentralized Order The European Market for Contract Laws

10 X Competition for Innovation in the European Market for Contract Laws The Cycle of European Contract Law Model The Restraining Effect of Consumer Protection Rules on Institutional Competition Implications Derived from the Cycle of European Contract Law Model for the Implementation of an Optional European Contract Law Part Two: Empirical Research 4. Methodology Research Design Sampling of Respondents Design of Questionnaire Procedure Representativeness of the Sample Association Analysis for the Choice of Proper Contract Law and Dispute Resolution Forum in Cross-Border Contracts Introduction to the Analysis of Associations between Variables General Overview of Contract Laws and Dispute Resolution Forums Differentiation of the Concept Dispute Resolution Forum The Variable Pairs Contract Law and Dispute Resolution Forum

11 XI Results of the Association Analysis Choice of Contract Law and Dispute Resolution Forum The Variable Pairs Choice of Contract Law and Choice of Dispute Resolution Forum Results of the Correlation Analysis Interpretation Do Contracting Parties Differentiate between the Dispute Resolution Forum and the Applicable Contract Law when Choosing them for a Cross-Border Transaction? Regression Models for Addressing Questions in European Contract Law Introduction to Binary Logistic Regression Analysis The Binary Logistic Regression Model Dichotomisation of the Dependent Variables Treating Ordinal Explanatory Variables as Continuous Multicollinearity Assumption and the Test for Multicollinearity Goodness of Fit Preference for a European Contract Law Binary Logistic Regression Model Response and Explanatory Variables Nested Model Structure Full Model Reduced Model Fitted Probabilities of Preference for a European Contract Law Interpretation What are the Characteristics of the Supporters of a European Contract Law?

12 XII 6.3 Preference for a European Civil Justice System Binary Logistic Regression Model Response and Explanatory Variables Nested Model Structure Full Model Reduced Model Fitted Probabilities of Preferring a European Civil Justice System Interpretation What are the Characteristics of the Supporters of a European Civil Justice System? The Use of Optional Contract Codes Binary Logistic Regression Model Response and Explanatory Variables Nested Model Structure Reduced Model Full Model Fitted Probabilities of Using Optional Contract Codes The Effect of the Variable Home Jurisdiction Interpretation What are the Characteristics of the Users of Optional Contract Codes? The Transaction Costs Latent Variable Model The Indicator Variables The Transaction Costs Confirmatory Factor Model The Use of Optional Contract Codes Factor Score Binary Logistic Regression Model

13 XIII 7.4 Interpretation Do the Concepts of Information Costs and Suboptimal Choice of Law Costs Adequately Describe the Transaction Costs Involved in Cross-Border Transactions? Part Three: Conclusions 8. Assessment of the Desirability of an Optional European Contract Law Summary of the Main Theoretical Findings Summary of the Main Empirical Findings The Interdependence between the Dispute Resolution Forum and the Applicable Contract Law Portrayal of the Supporters of a European Contract Law Portrayal of the Supporters of a European Civil Justice System Portrayal of the Users of Optional Contract Laws Concluding Remarks on the Research Design Employed Recommendations for Future Policy in the Field of European Contract Law References

14 Abstract This book analyses and predicts the effects that an optional European contract law would have on contracting behaviour in the European Internal Market. The book is structured as follows. In Part One: Theoretical Framework I develop my research question, situating it in the context of recent developments in European contract law and elaborating upon the economic and legal theory that serves as a rationale for the development of my line of argument. I then apply the theory that I have introduced to the context of European contract law. For this purpose I present a model which I propose to call the Cycle of European Contract Law. I use this model to analyze the competitive processes that take place in the European market for contract laws. In Part Two: Empirical Research I use empirical data to test this model and discuss the results. From this analysis I derive criteria that can be taken as a basis for decisions regarding the economic desirability of an optional European contract law that I present in Part Three: Conclusions.

15 List of Formulas Formula 1: Pearson s Chi-Square Test 174 Formula 2: Spearman s Rank Correlation Coefficient 176 Formula 3: The Logistic Regression Model 192 Formula 4: Odds 193 Formula 5: The Fitted Logistic Regression Model 193 Formula 6: The Confirmatory Factor Analysis Model 246 List of Illustrations Illustration 1: Path Diagram of the Transaction Costs Confirmatory Factor Model 250 List of Tables Table 1: Comparative Overview of the European Commission s SME Panel Survey and Results of the European Business Test Panel Survey 62 Table 2: Test of Proportions for Comparative Survey Results on Support for a European Contract Law and Intent to Use an Optional European Contract Law 82 Table 3: Sampling Frame 165 Table 4: Response Rate 167 Table 5: Grouping of the Forum Variables According to Civil Justice System, Dispute Resolution Forum and Jurisdiction 179 Table 6: Variables Pairs for Contract Law and Dispute Resolution Forum 182 Table 7: Association Analysis General Contract Law and Dispute Resolution Forum Variable Pairs 184

16 XVIII Table 8: Correlation Analysis for the Variable Pairs Choice of Contract Law and Dispute Resolution Forum 188 Table 9: Contingency Table on Dichotomisation of the Variable Preference for a European Contract Law 200 Table 10: Preference for a European Contract Law Binary Logistic Regression Model 206 Table 11: Fitted Probabilities of Preferring a European Contract Law I 209 Table 12: Fitted Probabilities of Preferring a European Contract Law II 210 Table 13: Binary Logistic Regression Model Preference for a European Civil Justice System 220 Table 14: Fitted Probabilities of Preferring a European Civil Justice System I 223 Table 15: Fitted Probabilities of Preferring a European Civil Justice System II 224 Table 16: Contingency Table UNIDROIT Principles * Principles of European Contract Law 228 Table 17: Binary Logistic Regression Model the Use of Optional Contract Codes 233 Table 18: Fitted Probabilities of Using Optional Contract Codes I 237 Table 19: Fitted Probabilities of Using Optional Contract Codes II 238 Table 20: Home Jurisdiction 239 Table 21: Contingency Table Use of Optional Contract Codes * Home Jurisdiction * Preference for Arbitration 240 Table 22: Correlation Matrix of Indicators for the Transaction Costs Confirmatory Factor Model 248 Table 23: Estimates of all Parameters of the Transaction Costs Confirmatory Factor Model 251 Table 24: Measurement Equations of the Transaction Costs Confirmatory Factor Model 253 Table 25: Standardized Residuals for the Correlation Matrix of the Transaction Costs Confirmatory Factor Model 254 Table 26: Coefficients for Calculating Factor Scores for the Binary Logistic Regression Model the Use of Optional Contract Codes 256 Table 27: Use of Optional Contract Codes Factor Score Binary Logistic Regression Model 257

17 XIX List of Abbreviations 2010 Green Paper Commission of the European Union. Green Paper on Policy Options for Progress Towards a European Contract Law for Consumers and Businesses, COM(2010) 348 final, 2010e. Action Plan Commission of the European Communities. A More Coherent European Contract Law. An Action Plan, COM(2003) 68 final, 2003a. CESL Common European Sales Law CFR Common Frame of Reference CISG United Nations Convention on Contracts for the International Sale of Goods Commission Commission of the European Union Council Council of the European Union DCFR Draft Common Frame of Reference EC European Communities EC Treaty Treaty Establishing the European Community ECJ European Court of Justice ECS European Cooperative Society EU European Union European Business Test Panel Expert Group Flash Eurobarometer Survey H 0 H 1 IA IT Member States Commission of the European Union. European Business Test Panel. European Contract Law. Statistics. Brussels: Commission of the European Union, 2010d. Expert Group on European Contract Law The Gallup Organization. Flash Eurobarometer 320. European Contract Law in Business-to- Business Transactions. Analytical Report. Budapest: The Gallup Organization, 2011b. Null Hypothesis Alternative Hypothesis Impact Assessment Information Technology Member States of the European Union

18 XX N OI Parliament p PECL PICC rho RMSEA Rome I Regulation SE Sig SME SME Panel Survey TEU TFEU UNIDROIT U.S. Way Forward Sample Size The Optional Instrument for European Contract Law proposed by the Commission of the European Union European Parliament p-value Principles of European Contract Law Principles of International Commercial Contracts Spearman s Rank Correlation Coefficient Root Mean Square Error of Approximation European Parliament and Council Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations (Rome I), Official Journal of the European Union, L. 177/6, Societas Europea Statistical significance Small and Medium Enterprise(s) Commission of the European Union. SME Panel Survey on the Impacts of European Contract Law. Brussels: Commission of the European Union, 2011a. Treaty on European Union Treaty on the Functioning of the European Union International Institute for the Unification of Private Law United States of America Commission of the European Communities. European Contract Law and the Revision of the Acquis. The Way Forward, COM(2004) 651 final.