INTRODUCTION: TWO LAYERS OF CONVERGENCE

This chapter draws a number of conclusions from the case studies and comparative remarks contained in Part II. Here, the subject matter of the comparative analysis changes. While the comparative remarks in Part II analysed and compared the 28 national answers to each case of the questionnaire, the present chapter analyses the 12 comparative remarks and compares them with each other. It aims at answering the central question of to what extent there is a common core intended as substantial convergences between the 28 jurisdictions as regards the operative rules found in each of the 12 case studies.

The degree of convergence between the national answers to the questionnaire's questions varies a lot from case to case. In some cases, the national answers only converge for what concerns the (in)validity or (un)enforceability of the contractual agreement, but not for what concerns the remedies ultimately available to the parties. Vice versa, in other cases, the national answers only converge to a certain extent for what concerns the remedies ultimately available, while no consensus can be found for what concerns the validity of the contractual agreement: half of the countries would consider the agreement valid and enforceable; the other half would deem it invalid and/or unenforceable. Furthermore, in some other cases, a convergence only concerns the main scenario, while the variation is characterised by great divergence.

This apparent inconsistency stems from the very nature of the operative rules that characterise the Common Core methodology. In this volume, the operative rules are determined by two factors: the validity or enforceability of the contractual agreement on the one hand, and the availability of the specific remedies asked for in the questionnaire's questions, on the other. The really decisive factor is the availability of the remedies, which could be not only contractual but also restitutionary, under the specific circumstances of the case. The restitutionary or unjust enrichment dimension often determines a practical convergence of the operative rules in two countries whose legal and meta- legal formants deeply diverge for what concerns the compatibility of a certain agreement with legislative provisions, public policy or good morals.