European Tort Law: Five Key Questions for Debate

Abstract

Abstract: Recent years have seen the publication of the Principles of European Tort Law, the principles on Non-Contractual Liability Arising out of Damage Caused to Another, and in 2008, the Draft Common Frame of Reference (DCFR) containing principles, definitions, and model rules not only on the law of contract but also the law of tort or delict. Although primarily academic exercises, these publications raise the possibility of the introduction of some form of harmonized European tort law as a practical reality. This article will not examine the substance of these texts but will instead focus more generally on a number of fundamental questions that require consideration prior to any possible move toward harmonization. Despite the lively debate in the context of European contract law, less attention has been given to the potential operational difficulties facing any future harmonization of the law of tort or delict, which, it is submitted, require particular attention in the light of its inclusion in the DCFR. This article will therefore highlight the need for a broader debate if these projects are to form the basis of any future instrument.