Research Proposal Example: Cultural Imperatives Influencing the Harmonization of the Private Laws

Date:  2021-03-30 22:57:35
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University/College: 
University of Richmond
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Research proposal
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This essay has been submitted by a student. This is not an example of the work written by our professional essay writers.

The proposed research is geared to look into the situation of unification of private law (governing commercial and private transactions) with the specific focus on how cultural factors influence integration efforts of the private laws. Further, the study is also focused to determine means to support efforts to synchronize the law. The differences between countries with regard to the consumers trust, understandings, rationality patterns, values and the behavior of decision-making will therefore form the basis for the analysis of the harmonization situation.

Intended Area of Research

The introductory facet of the proposal articulates the researchers intention to focus on the framework devised by the UNIDROIT to regulate relations between entities (such as businesses and customers), particularly in the area of contracts, property, liability for damage, family relationships and inheritance. It is possible to conceptualize the study as one investigating the effectiveness of the harmonization process in attaining an integrated framework to govern the enforcement of civil procedures (private rights) and the regulation of conflicts of private international laws ( jurisdictions and laws).

The research focuses on the challenges and trends in the harmonization of Private Law in Europe. Europe has been chosen based on prior studies articulation that while the EU has been at the forefront of Private Law harmonization initiatives, the region is yet to experience the full harmonization of the Private Law regarding commercial and private transactions. The study focuses on investigating the cause of the current state of affairs through examining the forces that stand in the way of the harmonization of Private Law. The project focuses on researching two prime factors that may influence the synchronization efforts: the challenge associated with difficulties of coping with variant legal frameworks, and national cultural hurdles.

In the European Union, the harmonization of private laws has not yet achieved a full harmonization state yet. Notably, some areas have been more harmonized than others, as observed in the case of the Consumer Protection Laws. On the other hand, other areas have been left behind and this area will try to find the reason why the Private Law has not been fully harmonized. Consequently, the project is geared to investigate the force behind the resistance to harmonizing the provisions governing commercial transactions and personal relationships.

Relevance of Proposed Research

It should not go unnoted that the proposed research focuses on a relatively new topic that has received little attention from previous researchers. In addition to the notion that significantly few studies delineate factors hindering the harmonization of private laws, the prospective study goes further by drawing attention to the causes of the coherence problem and the resources that the EU might use to attain synchronization in private law. Among the premises principal arguments is that the EU competence to govern private laws is significant to numerous legal backgrounds. The prime legal principles for regulating functional private law is centered in the EU competence to integrate national legislations that restrict the operation of the international market . Art. 81 TFEU further accords the EU the responsibility conduct the regulation of various dimensions of private international laws and civil procedures. These are aimed at developing the judicial integration in civil issues and possessing an interstate implications depending on the code of mutual recognition of decisions and judgment in extrajudicial case. Art.352 also TFEU presents a flexible clause in scenarios where none of the base is available.

The focus to formulate legislation in the area of private law started in the 1980s, particularly in consumer contract provisions. Nonetheless, the international market-oriented character of the area influenced the law to focus on selected matters, including unfair terms, late payments or agreements not concluded in a business setting. The consequences of the sectoral measures on the consistency of national frameworks of private laws have raised concerns such as the need for Consumer Protection Laws and its applicability for the future. These concerns justify experts advocacy for the adoption of the horizontal strategies (European Civil Code) to attain synchronization of private law, on an inclusive (EU-wide) dimension, even though the proposition has generated a significant level of criticism. Worth noting is that the EU legislature has not been the sole actor in the effort to attain the Europeanization of private law. The EU legislatures efforts have been influenced by the EU Court of Justice (CJEU) that has been playing a pronounced role in the situation. The particular characteristic of the area of law in question is the practical involvement of academics, whose efforts have been focused on the European private law, which is one of the major areas studied. Thus, the intention is to site variant ways to attain legislative unification (such as harmonization by directive, synchronization by legislation, and the optimization of mutual European sale law) and judicial unification. .

Purpose of Proposed Research

The premises first assumption is that private law is an integral part of national culture and that cultural adoption issues play a critical role in the resistance. The role of national culture in the adoption of private law is not a simple one. Most European citizens may have a significant attachment to the cultures of their nations, coupled with local and regional cultures that are difficult to root out. However, the intensity and prevalence of culture may not be readily measurable. Consequently, the research activities rely on alternative methods such as historical analysis to provide partial answers to the overriding question of whether cultural factors influence the level of integration in private law. Another important hypothesis include the variant consumer and business groups of which the unification of private laws will have different outcomes. It is within the goals of the prospective research to test the validity of the assumption that the integration of private law will have a positive effect on consumers and businesses decisions, causing an increase in international transactions. In summary, the research is geared to provide answers to three fundamental research questions:

To what extent is international private law synchronized to influencing a positive effect on consumers and businesses decisions and ultimately causing an increase in international transactions?

What are the roles of national cultures in the drive to achieve harmonization in private law?

What are the solutions for attaining the unification of private law on an international dimension?

The researcher will capitalize on appropriate research methods in the quest to finding context-based solutions that will be of significance in efforts to attain harmonization of private law on a global scale. On a wider note, the analysis of the European Union situation will play significant role in providing the researcher with solutions that are also applicable in the international arena. Such an analysis is based on the fact that historical analysis have the ability to offer partial answers to the overriding question regarding the capacity of cultural factors influence the level of private law integration.

References

Backer, L. C. (2007). Harmonizing law in an era of globalization: Convergence, divergence, and resistance. Durham, N.C: Carolina Academic Press.

Bonell, M. J. (2010): The Use of the UNIDROIT Principles in Practice. Leiden - Boston: Martinus Nijhoff Publishers. doi:10.1163/ej.9789004177161.i-692.29

Brand, R. A., Walter, M., & University of Pittsburgh. (2005). Private law, private international law, & judicial cooperation in the EU-US relationship. Eagan, Minn.: Thomson/West.

Calster, G. (2013). European private international law.

Crawford, E. B., & Carruthers, J. M. (2010). Avizandum legislation on international private law in Scotland. Edinburgh: Avizandum Publishing Ltd.

Gomez, F. & Ganuza, J.J., (2012), How to build European private law: an economic analysis of the lawmaking and harmonization dimensions in European private law, European Journal of Law and Economics, vol. 33/2012.

Van Gerven, W. (2004). Harmonization of private law: Do we need it?. Common Market Law Review, 41(2), 505-532.

Journal of Private International Law. (2005). Oxford, England: Hart Pub.

Kuipers, J.-J. (2012). EU law and private international law: The interrelationship in contractual obligations. Leiden: Martinus Nijhoff Publishers.

Lookofsky, J. M. (1991). Loose Ends and Contorts in International Sales: Problems in the Harmonization of Private Law Rules. The American Journal of Comparative Law, 39(2), 403-416.

Luzak, J (2014): "Online Consumer Contracts." Journal of the Academy of European Law 15, no. 3 (2014): 381-92

Manitoba. (2009). Private international law. Winnipeg, Man: Manitoba Law Reform Commission.

McConville, M., and Wing H. C. (2007): Research Methods for Law. Edinburgh: Edinburgh University Press

Mwangi, M. E. (2007): "The New Lex Mercatoria: Applicability of Lex Mercatoria as Substantive Law in International Commercial Arbitration.

Mistelis, L. A. (2000). Regulatory Aspects: Globalization, Harmonization, Legal Transplants, and Law ReformSome Fundamental Observations. The International Lawyer, 1055-1069.

Nakagawa, J. (2011): International Harmonization of Economic Regulation. Oxford: Oxford University Press

Orlando, S., (2011): The Use of Unfair Contractual Terms as an Unfair Commercial Practice. (European Union)." European Review of Contract Law 7, no. 1: 25.

Smits, J.M., (2009), Full Harmonization of Consumer Law? A Critique of the Draft Directive on Consumer Rights, European Review of Private Law, Vol. 18, pp. 5-14, 2010

Verschraegen, B., & Blanpain, R. (2001). Private international law. The Hague, the Netherlands: Kluwer Law International

Von, M. A. T., & Gottschalk, E. (2007). Adjudicatory authority in private international law: A comparative study. Leiden: Martinus Nijhoff Publishers.

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