The Architecture of Post-National European Contract Law from a Phenomenological Perspective – A Question of Institutions

Abstract

Post-national European contract law consists of rulemaking that affects the superstructure and infrastructure of contract law. To view European contract law through the criteria of the superstructure and infrastructure of contracts provides us with a possibility to understand that the struggle about the colour of European contract law follows two trains: The first is a struggle about the determination of values and principles underlying European contract law. The second is about the adequate reflexion of these values in the infrastructure by the respective legal institutions in the superstructure. I will argue that the infrastructure of post-national European contract law consists of traditional party-determined values and new values that are independent from the respective parties and thereby determined by other “players”. The only value that convincingly qualifies as ‘post national’ value is the one of market-creation. These non-party determined values also influence the superstructure of European contract law. In addition to the traditional private law institutes, which may be detected by comparative research of existing national private law, the superstructure then also requires the implementation of institutes that respond to and are measured against these new values. Each and every legal provision in the superstructure of European contract law hence needs to be tested against its suitability to create and govern markets, thereby responding to the challenges created by the accession into the age of market-states. European contract law is hence a question of institutional analysis.