THERE is a lively debate among scholars in Europe about how, if at all, the private laws (tort, contract, property) of the European nation states should be harmonised. Views range from no harmonisation at all, soft law methods such as models contained in Principles, step by step case law developments, to a fully fledged binding European Civil Code. Another hotly debated issue is the disharmonisation (fragmentation) of domestic systems of private law as a result of current and ongoing EC level harmonisation. The prime consequence of this partial legislative intervention is an enhanced role for the judiciaries of those jurisdictions: they are inevitably entrusted with the fine-tuning of the interaction between domestic and EC private law. Alien concepts make their entry into a Member State’s Civil Code or common law doctrine that do not necessarily easily fit (one scholar has called these “legal irritants”). Most likely, for the foreseeable future, piecemeal harmonisation of specific, and more or less narrow, legal fields is the only show in town.
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