DescriptionApart from arbitrage, the adjudication of many international commercial disputes is still within national jurisdictions, also in Europe, despite the existence of international instruments such as the Vienna Convention on International Commercial Sales. How do these national courts accommodate changing commercial practices out of which disputes arise? And if various national courts develop similar rules to accommodate changing commercial practices, is that mainly because similar changes require similar solutions? Or are similar rules developed because they are for a regional, European market? This paper will address these two questions from a historical perspective: how responsive have national jurisdictions been to changing commercial practices in the 19th century? And have similar rules been developed because of similar problems or a shared, European market? This historical perspective seems justified because in the 19th century, as is currently the case, was Europe characterized by separate national jurisdictions that had to deal with an increasingly unified and liberal market of European dimensions, particularly as of the 1870s.
As a case study, the judicial response to changes in commercial sales practice in 19th century Europe will be analyzed. First certain changes in commercial sales law will be highlighted for the English, German and Dutch jurisdictions. Here, these changes concerned a growing reliance on immediate default once a seller had failed to deliver in time and subsequently the market price rule to calculate the damages due. Immediate default and the market price rule can indeed be related to the introduction of faster and more reliable means of transport, such as railways, but perhaps more importantly to the introduction of more industrial production techniques. It will appear that immediate default and the market price rule became entrenched in the English jurisdiction roughly between 1820 and 1840, in the German ones between 1840 and 1850, and in the Dutch jurisdiction between 1860 and 1870.
Subsequently, these similar though successive responses by the English, German and Dutch jurisdictions will be analyzed for their responsiveness to changes in commercial sales practice and whether these responses had been developed independently or for a regional, European market. Depending on the available data of judicial statistics of the 19th century, the entrenchment of immediate default and the market price rule will be related to the overall increase in commercial cases in the various jurisdictions and whether this increase in commercial cases was concentrated in courts of commercial cities with a regional or international interest. If, for instance, the adoption of immediate default and the market price rule took place simultaneously or shortly after a strong increase of commercial cases, concentrated in regional or international commercial centers, this would indicate that such a jurisdiction is highly responsive to changes in commercial (sales) practice that are moreover most likely developed within a regional, European market. Preliminary investigation of the Judicial Statistics for the Kingdom of the Netherlands seems indeed to indicate a strong responsiveness of Dutch courts in the context of a European market.
The insights obtained from this investigation can importantly contribute to a discussion about relying on national courts to timely and adequately accommodate changing commercial practices.
|Period||12 Oct 2018|
|Event title||The Future of the Commercial Contract in Scholarship and Law Reform: 3rd Annual Conference|
|Location||London, United Kingdom|
|Degree of Recognition||International|