Standing Surety in Europe: Common Core or Tower of Babel?

Abstract

This article analyses the treatment of non‐professional suretyship agreements across the EU in the context provided by Commission initiatives aimed firstly at creating a single market in financial services and secondly at improving the coherence of European private law. Predictably, given their polycontextual function, we are confronted with starkly divergent national approaches towards such agreements: a ‘Tower of Babel’ rather than a ‘common core’. The article proceeds to consider how we may see elements of commonality arising through the tension between the differing national approaches – seen in terms of a Unitary Network. In the course of this analysis the treble paradox of surety protection is described. The article finishes with a prediction of the relevance of a dual‐track strategy in this field: involving measures of sector‐specific, vertical harmonisation, and a programme of common‐law style, non‐legislative harmonisation through judicial convergence.