Introducing the European Law Institute

The inaugural meeting of the European Law Institute (ELI) took place on 1 June 2011 in the agreeable surroundings of the Sorbonne, Paris. It was well attended by lawyers from all over Europe. There were many speakers, from all branches of the national legal professions and judiciaries. The European Union institutions – the Commission, the European Parliament and the Court of Justice of the European Union – were all represented.

What is the ELI?

The ELI has been formed in order to bring together the various networks of lawyers presently active in European legal scholarship. Roughly modelled on the American Law Institute, its genesis can be traced in two memoranda: the Hamburg Memorandum and the Vienna Memorandum. One of the rationales for the ELI is to act as a central body which can draw on the considerable expertise that has developed among many disparate groups working in the field of comparative law and European harmonisation. But another rationale is to provide a Europe-wide body that is more representative of lawyers, particularly practising lawyers. According to its statutes (1), the ELI seeks to promote “study and stimulate European legal development in a global context. Its field of activity covers all branches of the law”. Its aims are to:

• evaluate and stimulate the development of EU law, legal policy, and practice, and in particular make proposals for the further development of the acquis and for the enhancement of EU law implementation by the member states;
• identify and analyse legal developments in areas within the competence of member states which are relevant at the EU level;
• study EU approaches regarding international law and enhance the role EU law could play globally, for instance in drafting international instruments or model rules;
• conduct and facilitate pan-European research, in particular draft, evaluate or improve principles and rules which are common to the European legal systems; and
• provide a forum, for discussion and cooperation, of jurists irrespective of their vocation or occupation, inter alia academics, judges, lawyers and other legal professionals, who take an active interest in European legal development and together represent a broad range of legal traditions.

Agendas

The ELI has no set agendas. It is not the mission of the ELI to harmonise European contract law, private law or any other area of law. At the Paris meeting it was suggested that the ELI was likely to be of assistance to existing European institutions – such as the European Parliament – which have limited resources for commissioning serious legal advice; and, indeed, in providing assistance to national legislatures which would benefit from comparative law research but lack the resources to do the research itself.

In this respect the ELI would be a valuable resource for the Scottish Parliament and perhaps the Scottish Law Commission, not to mention Westminster (which rarely looks beyond its own borders). It is not necessarily envisaged that the ELI will commission grand Restatements of existing European law on the model of the American Law Institute; the ELI has instead left its future projects open to its members and external tendering. The deadline for the first call is 31 August 2011.(2)

Relevance of the ELI to Scots lawyers

The keynote address was delivered by Professor Reinhard Zimmermann. Professor Zimmermann is the director of the Max Planck Institute in Hamburg which has, to some extent, become the legal centre of private law scholarship for contemporary Europe, as Bologna in the 12th century and Leyden in the 17th and 18th centuries. It is sadly not well known among the Scottish profession the services that Zimmermann has rendered to Scots law by promoting the study of Scots law in continental Europe.(3)

From his wide-ranging address in Paris, two points are worth mentioning.

The first concerns language. The ELI must move from the traditional European languages – good French and bad French – to the modern lingua franca: English. But the ELI must encourage the multilingualism which is so essential for any serious comparative work (or indeed international legal practice). Zimmermann – a German speaking in French and English – ventured his own preference for encouraging young lawyers to obtain proficiency in three languages. Monoglot UK lawyers take heed: Lord Neuberger of Abbotsbury MR, for instance, following Zimmermann’s lead, introduced his address entirely in French.

Zimmermann’s second point concerned the importance of Europe’s smaller legal systems. The major legal systems, like Germany and England, for instance, had much to learn from smaller systems: the first example he gave was of the “trust without equity” of Scots law, the theory of which has been comprehensively worked out by George Gretton.(4) It is perhaps indicative of the engagement of the Scottish legal profession with comparative law that a Scottish theory about Scottish trusts is better known in Europe than in Scotland.(5) In practical terms, such quality scholarship – together with contributions of such luminaries as Alan Watson, Lord Rodger of Earlsferry and Eric Clive – does more “marketing” for Scots law than any glossy brochure ever could.

The future

It is rare for any meeting or conference to attract so many of Europe’s top lawyers to one place at one time. In the discussions, it was possible to discern at least four areas which are seen as the subjects for the future: EU administrative law and procedure; EU criminal law; EU contract law; and the interaction of fundamental rights and private law. In all of this, however, there is the political aspect: as even a pro-harmonisation MEP like the UK’s Dianne Wallis was at pains to stress, major prescriptive harmonisation of substantive private law is a political non-starter.

Membership

In principle, the ELI wishes to be open to all lawyers – whether practitioners or academics – throughout Europe. Practising lawyers are particularly encouraged to apply. There is really only one criterion: independence. Applications for full membership will be accepted only from lawyers who undertake not to use their membership to further the interests of clients. Those who wish to monitor the ELI’s work for clients may apply for membership as individual observers. Law firms may also apply for observer status. Details are available on the ELI’s website.

The executive committee of the ELI is chaired by Sir Francis Jacobs, and there are three other founding members based in the UK: Lord Mance, Professor Hugh Beale and Lord Justice Thomas. The ELI’s decision to adopt English as its working language means that all Scots lawyers with an interest in European and comparative law can participate. Given the colossal contributions of individual Scots lawyers to the work of European comparative law, it would be fitting to see an enthusiastic uptake in membership from the ranks of Scottish judges and practitioners.

Notes

(1) The ELI has been formed as an Association internationale sans but lucratif (AISBL) / Internationale Vereniging Zonder Winstoogmerk (IVZW) under Belgian law. Although its seat and administrative office is in Brussels, the ELI secretariat, following a tender process, will be based at the University of Vienna.

(2) See ELI Council Decision (CD) 2011/7 (preliminary project guidelines), 24 June 2011.

(3) He has edited, funded and contributed to no fewer than four major studies of Scots law: R Zimmermann and K G C Reid (eds), A History of Private Law in Scotland (2 vols, OUP, 2000); R Zimmerman, D Visser and K G C Reid (eds), Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (OUP, 2004); R Zimmermann and H L MacQueen, European Contract Law: Scots and South African Perspectives (EUP, 2006); N Whitty and R Zimmermann (eds), Personality Rights in Scots Law: A Comparative Perspective (DUP, 2008).

(4) See George Gretton’s seminal article, “Trusts without Equity” (2000) 49 International and Comparative Law Quarterly 599. See too K G C Reid, “Patrimony not Equity: the Trust in Scotland” (2000) European Review of Private Law 427.

(5) Even the French have amended the Code Civil to include the trust-like fiducie device: Code Civil, art 2011 ff (inserted in 2007, with subsequent amendments). The legislative report to the Senat cited Scotland as the prime example of how trusts without equity might work. The Court of Session has some catching up to do.