LEGAL CULTURES · Differences in European Legal Cultures: A Study on Dispute Agreements As a Form of Private Regulation

The proposal focuses on dispute agreement as to evidence, qualification and interpretation. Those are increasingly relied upon by the parties, in consumer and business contracts in domestic and cross-boarder transactions. They provide for a private regulation and are meant to impose the solutions parties agreed upon in case of disputes as to the contract. The legal effect attach to these agreements differs among the major European jurisdictions. I will demonstrate that these differences reflect deeper, underlying differences in legal culture in the major European jurisdictions. The research will include 3 steps. First, a comparative and analytical enquiry as to the legal effects of dispute agreements (UK, France and Germany and EU Principles). The purpose of this phase is to show for each jurisdiction to what extent the parties are allowed to depart from the usual rules on dispute and, therefore, the depth and limits of the freedom granted to the parties to modify the power of the judge. Second, a synthetic analysis of the extent to which the limits to the enforceability of private regulation can provide evidence as to accepted deviation from the normal public judicial role. The interest of this analysis is to show the relationship between restrictions on freedom of contract and core cultural fundamental procedural principles (judicial impartiality, principle of fair trial, etc.). Third, an assessment of prospective changes on these issues in connection with the procedural principals directly or indirectly stated in international norms such as the European Convention of Human Rights. This step reaches out directly to European Private Law as such and contributes to its construction.. A guide on the comparative effect of dispute agreements is, per se, a useful tool for transactions’ security in Europe. The deeper analysis of the cultural reasons that account for differences is needed to anticipate further European legal harmonization.