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This article forms part of a special edition of the Common Market Law Review.
Publishers Abstract:
In the author's view, the general presumption that regulation of business behaviour is a harm until shown to be a good applies to the Common European Sales Law (CESL) as it does to other aspects commercial law. In this paper, he shall examine this theme in the following sequence. First, section 2 offers a general examination of the relationship between transaction costs and gains from trade. Section 3 continues this general theme by asking what concerns with heterogeneity, administrative burdens, and public choice theory tell people about the mandatory terms that CESL includes in its optional legislation. Section 4 examines the gains from vertical harmonization, and rejects the view that these require the adoption of a single set of terms or are compatible with a wide range of EU regimes from which the parties are allowed to choose. Section 5 contrasts the CESL's approach with the successful use of open choice in the US with both forum selection and choice of law clauses.
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