Chapter 10 - The Use of Additional and Alternative Techniques

Summary

Introduction

The previous chapter has analysed the use of national techniques in the multilevel legal order. In accordance with the findings in the case studies, actors did not take interdependence as a starting point in the development of European private law through national techniques. Accordingly, it has been argued that European actors, rather than emphasising top-down techniques, should develop a combination of top-down and bottom-up techniques, and some areas of law have already been characterised as a hybrid of top-down and bottom-up approaches. The case studies indicated that some additional techniques may contribute to the comprehensibility of the law on STCs, and some techniques could foster deliberation, mutual learning and increase the predictability, consistency, accessibility and responsiveness of European private law. However, suggestions for the use of additional and alternative techniques may meet with resistance from national actors, in accordance with the normative frameworks defended in chapters 7 and 8.

The case studies have argued for more interaction between actors. Techniques in addition to or instead of currently used techniques may facilitate more interaction between interdependent actors, in accordance with multilevel governance insights. In the light of some pluralist arguments for the development of new governance, such as comitology, this chapter will ask whether the use of additional and alternative techniques more generally are likely to foster deliberation and mutual learning. If techniques have already been widely used, this chapter will consider the use of these techniques and possible improvement. With regard to techniques that have not yet been widely used in the development of European private law, this chapter will consider their strengths and weaknesses and their potential to strengthen European private law.

This chapter does not aim to provide a comprehensive overview of techniques that could be used in addition to or instead of currently used techniques. Instead, the chapter will focus on the use of techniques that seem particularly suitable to cope with the problems detected in the use of codifications, blanket clauses and general principles. Notably, this will include techniques that have been not been considered, rejected or doubted in the case studies, such as the use of Regulations, the use of model laws, the OMC, the development of optional regimes and comitology.