INSTITUTE OF ADVANCED LEGAL STUDIES

SCHOOL OF ADVANCED STUDY UNIVERSITY OF LONDON

W G HART LEGAL WORKSHOP 2008

Tuesday 24 June to Thursday 26 June 2008

THEORY AND PRACTICE OF HARMONISATION

Venue: Institute of Advanced Legal Studies, 17 Russell Square, London WC1B 5DR

Academic Director:
Professor Mads Andenas, University of Oslo

Harmonisation is an important feature of the modern legal system. Harmonisation of the laws
of the Member States is a core instrument of the European Union. Many international treaty
obligations entail duties to adopt conform legislation and ensure conform application.
International and regional human rights treaties provide important examples of this. There is a
considerable scholarly literature on different harmonisation issues, but not bringing together
the outcome of this scholarship in a comparative analysis or in developing more general theory
on the harmonisation process or different aspects of it. There is a need for bringing together
scholars of a range of legal, social science and humanities disciplines, including from within
the law, general legal theory or jurisprudence, constitutional law, comparative law,
international law, human rights law and EU law, and the different national and international
legal areas most affected by harmonisation. Contributions are made in integration studies,
international relations, European studies, and political theory. Moving freely over the
boundaries that divide the law, and the fragmented scholarly disciplines, may usefully combine
perspectives in interdisciplinary and multidisciplinary scholarship. In this way one may
provide models for, and improve, the understanding of the harmonisation process.
The procedures for adopting the harmonising instrument, and for subsequent
amendments to it, are under rapid development. In the EU, the legislative procedures are a
central constitutional concern, and are subject to continuous reform. Different treaty regimes
offer new and alternative mechanisms.
The form of the harmonising instrument offer much variety and innovation.
International treaties and conventions do not follow universal models. In the EU, there is an
important difference between directives and regulations, but also the regulation, which has
direct effect without any legislative transposition, often requires different implementation
measures to have its effect in national law. Some main types of directives are minimum
standards directives, maximum standard directives, framework directives, and directives in the
process of open method of coordination. The relationship to the fundamental freedoms in the
EC Treaty is another issue. For international treaties and conventions, there is the relationship
to customary international law and other treaties and conventions.
The role of international financial institutions, such as the World Bank and the IMF, in
legal harmonisation across a wide field, is controversial and requires further analysis to be
fully understood. Harmonisation, aid and development bring up many related issues.
Informal harmonisation processes, outside the intergovernmental fora, are of increasing
importance. The role of model codes, principles and other outcomes of such processes is
another field of study. Their interaction with the intergovernmental organs, and their reception
in contract practice or directly by national legislators or courts merits further attention.
Important examples here are Principles, Definitions and Model Rules of European Private
Law. Draft Common Frame of Reference (DCFR). Interim Outline Edition. (2008), the
research carried out by the Study Group on a European Civil Code (the von Bar Group) and the
Research Group on EC Private Law (Acquis Group) and other academic and scholarly projects
and their relationship with more formal EU procedures, see for instance the European
Commission’s 2003 Action Plan on a More Coherent European Contract Law merits study.
Transposition in national law takes different form in national legislation, and the
procedures vary as well. Harmonisation has affected the form of national legislation, and the
sources of law in the national legal system. Court practice in the application of harmonised
law follows yet other principles and patterns. The response in case law to the new sources of
law that can assist in promoting uniformity, or in some field, the ways in which the lack of
such sources are compensated for, is of particular interest. The use of judgments from other
international or national jurisdictions is one current issue. Informal networks of judges
cooperate across jurisdictional boundaries in the application of international instruments,
assisting one another in finding sources and practical solutions to the uniformity problems.
Amendment and monitoring of the transposition and subsequent practice under national
law is another area where there in some areas are highly developed regimes, and in others
practically nothing following the adoption of a convention. There are models involving an
independent international monitoring body, or more judicialised institutions, or combinations
of supranational monitoring and court institutions. Novel forms of institutionalised peer
review have developed over the last couple of decades.
Enforcement and sanctioning provide other challenges, closely related to monitoring
and amendment.
The experiences with harmonised regimes provide an extensive material which is well
suited for research. In the EU, there is an emerging scholarship comparing the transposition of
directives in different national laws. This provides a basis for the Review of the Consumer
Acquis, which is another of the harmonisation projects of the European Commission, currently
limited to eight directives, including the Consumer Sales Directive and the Unfair Terms
Directive, leaving aside other directives in the consumer field such as the Consumer Credit
Directive, the Unfair Commercial Practices Directive and the Product Liability Directive.
Maximum harmonisation and the use of mandatory rules in the directives may have had a
profound effect on the private of the Member States, which if it has had such an effect, remains
underexplored.
The international conventions in the long established tradition for harmonisation of
commercial law provides another field of emerging scholarship, see for instance, the United
Nations Convention on Contracts for the International Sale of Goods, 1980), the UNCITRAL
Model Law on International Commercial Arbitration 1985, UNIDROIT’s Principles of
International Commercial Contracts, the EBRD’s Secured Transactions Project, and the ICC’s
Uniform Customs and Practice for Documentary Credits.
In comparative law there is a current discourse about legal transplants. There is also a
challenge to the idea of convergence between national legal systems and traditions. One issue
here is to link the theoretical models that have emerged here with the scholarship on
harmonisation in different fields.
This year’s W.G. Hart Conference will address these issues and others related to the
theory and practice of harmonisation.

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 DRAFT PROGRAMME
(the programme remains subject to change)

DAY ONE: TUESDAY 24 JUNE 2008

09.00 Registration

09.30 PLENARY SESSION

Opening Address:
Professor Sir Francis Jacobs QC

Theory and practice of harmonisation: an introduction to the programme:

Professor Mads Andenas, University of Oslo; University of Leicester; Institute of
Advanced Legal Studies

Uniform Commercial Law – An Example of a Global Jurisconsultorium

Dr Camilla Andersen, University of Leicester

The European Common Frame of Reference and Credit Securities – a suitable case for
treatment?
Professor Gerard McCormack, University of Leeds

11.00 Coffee

11.30 PLENARY SESSION:

Procedural harmonization in the EU’s GMO Authorization Framework

Michail Kritikos, University of Exeter

Harmonisation with international human rights standards: British courts and the
European Court of Human Rights
Merris Amos, Queen Mary, University of London

13.00 LUNCH

14.00 PARALLEL SESSIONS

The Impact of WTO Appellate Body Jurisprudence on the Harmonization of Trademark

Law in the European Union
Dr Gail E Evans, Queen Mary, University of London

International Competition Law Harmonisation and the WTO: Past, Present and Future
Dr Jurgita Malinauskaite, Brunel University

One Path and Many Directions - Voluntary harmonization of competition regulations and
the development of national competition regulation in the case of China. (WTO)
Qianlan Wu, London School of Economics, and Institute of European Studies, Chinese
Academy of Social Sciences

The TRIPS Agreement, Harmonize of Intellectual Property Laws and the Impact on the
Legislation of Arabic Countries
Anan Younes, University of Leicester

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 PARALLEL SESSIONS

Harmonisation of substantive legal principles: lessons from environmental laws in a

Federal Legal System
Ross Ashcroft, Queensland University of Technology, Australia

Models of Harmonisation of Environmental Criminal Law: Unification, Approximation,

Co-operation or a Mixed Method?
Ricardo M. Pereira, University of Essex

15.30 Tea

16.00- PLENARY SESSION

18.30
European Harmonisation and Its Contribution to A Theory of Harmonisation
Professor Jan Dalhuisen, King’s College London

International Commercial Harmonisation and National Resistance

Dr Maren Heidemann, University of Westminster

The “academic” DCFR of February 2008

Professor Hugh Beale QC FBA, University of Warwick

18.30 Reception

DAY TWO: WEDNESDAY 25 JUNE

0.930 PARALLEL SESSIONS

Harmonisation of Secured Transactions Laws: A Comparative and International

Perspective
Dr. Orkun Akseli, University of Newcastle Law School

A Demandeur-Centric Approach to Transnational Commercial Law

Dr. Sandeep Gopalan, Arizona State University

An Economic Implication of Conflicting Company Laws

Professor Junko Ueda, Shizuoka University, Japan

PARALLEL SESSIONS

The Europeanisation of Private Law Through the Looking Glass of Legal Transplants - A
New Analysis of the Harmonisation Project
Dr Leone Niglia, University of Aberdeen

Comparative Law and European Harmonisation – a match made in heaven or uneasy

bedfellows?
Professor Dagmar Schiek, University of Leeds

11.00 Coffee

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11.30 PARALLEL SESSIONS

Creation of rules in National and International Business Law: A Non-National,

Analytical-Synthetic Comparative Method.
René Franz Henschel, Aarhus School of Business, University of Aarhus

Transnational Commercial Law in the Age of Globalisation

Professor A F M Maniruzzaman, University of Portsmouth

Harmonisation of European takeover regulations as affected by legal systems, legislative

process, and national transposition of the Takeover Directive
Jonathan Mukwiri, University of Leicester

PARALLEL SESSIONS

The EU’s ‘external governance’ and legislative approximation by the neighbours:

Challenges for the classic constitutional templates
Dr Anneli Albi, University of Kent

Progressing ‘common constitutional traditions’ for the EU: the case of marriage for all
Jackie Jones, University of the West of England

The post accession Harmonization with EC law in the Republic of Cyprus: Constitutional
Constraints and Gaps
Dr. Constantinos Kombos, University of Cyprus
(to be confirmed)
13.00 LUNCH

14.00 PARALLEL SESSIONS

Harmonisation or Reflexive Coordination of Law and Policy? Thoughts on New

Governance in the European Union
Dr Ralf Rogowski, University of Warwick

Democracy and the Shifting Balance of Public and Private Governance

Dr Mary Vogel, King’s College London

PARALLEL SESSIONS

The Common Frame of Reference in European contract law: an inspired idea or a

distraction?
Katherine Lim, BPP Law School

From Sectoral Harmonisation to a European Code within one Generation?

Annette Nordhausen, University of Manchester

The Common Frame of Reference in European Contract Law; soft law and civil society
Dr Jacobien W Rutgers, VU University, Amsterdam

15.30 Tea
16.00 ROUNDTABLE DISCUSSION

Discussion led by Professor Jan Dalhuisen:

European contract law and the Common Frame of Reference and methods and procedures
for harmonisation – what are the likely consequences for European Contract Law

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DAY THREE: THURSDAY 26 JUNE

09.30 PLENARY SESSION

Beyond Francovich: Completing the Unified Member State and

EU Liability Regime
Professor Gerrit Betlem, University of Southampton

10.15 PARALLEL SESSIONS

The Acquis Principles: Critical Reflections on the Drafting Process and Potential Future
Application of the Principles
Dr Christian Twigg-Flesner, University of Hull

Small states and EU harmonization

Dr Costantin Stefanou, Institute of Advanced Legal Studies

Technical considerations in harmonisation and approximation: legislative drafting

techniques
Dr Helen Xanthaki, Institute of Advanced Legal Studies

Title to be confirmed
Stylianos Andreadakis, University of Leicester

PARALLEL SESSIONS

Harmonisation and The Rule of Law. Theoretical Troubles and New Hopes
Dr Giovanni Cogliandro, University of Rome

ENISA and New Forms of Approximation: Towards a Transnational Theory of

Harmonisation?
Emilia Korkea-aho, University of Helsinki

Should the EU be attempting to harmonise national systems of labour law?

Dr Phil Syrpis, University of Bristol

11.30 Coffee

11.45 PARALLEL SESSIONS

The Margin of Appreciation as an Exception to Uniform Standards in Human Rights

Dr Yutaka Arai, University of Kent Law School

International Criminal Law and national legal systems

Dr Mohamed Elewa Badar, Brunel University

How far are national broadcasting orders converging as a consequence of European

media law and policy?
Irini Katsirea, Middlesex University

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 PARALLEL SESSIONS

The relationship between measures of minimum and measures of maximum harmonisation

Dr Amandine Garde, University of Exeter

The Fallacy of the Common Core: Polycontextualism in Surety Protection - a ‘hard case’
in harmonisation discourse
Mel Kenny and James Devenney, Durham University

The new approach: the end or a new beginning

Rodolphe Munoz, Université de Liège

Legal Convergence around the World: Fact or Fiction?

Dr Antonios E Platsas, University of Derby

13.00 LUNCH

14.00 PARALLEL SESSIONS

Harmonisation on the Enforcement of Arbitral Awards

Serhat Eskiyoruk, Institute of Advanced Legal Studies

The Draft UNCITRAL Convention on the Carriage of Goods by Sea and arbitration: The
road to autonomy of international law on carriage of goods?
Miriam Goldby, University of Surrey

PARALLEL SESSIONS

Lex Mercatoria as Transnational Commercial Law: Is the claim that the Lex Mercatoria
is preferentially for the ‘mercatocracy’ (1) true?
Adaora Okwor, University of Sheffield

Harmonisation of business law: the experience of Africa

Jimmy Kodo, University of Paris XII, Creteil, France; and University of Hertfordshire

Harmonisation and Regulatory Differentiation within the European Internal Market

Examining the European harmonisation process with specific regard to the derogations
contained within Article 95 EC
Isidora Maletic, King’s College London

15.30 Tea

16.00 ROUNDTABLE DISCUSSION

Discussion led by Dr Camilla Andersen:

Towards a theory of harmonisation

17.30- Farewell party and reception

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