Product details
- Categories: Private International Law
- Publisher: Intersentia Uitgevers
- ISBN: 9781780687858
- Publication Date: 30/09/2019
- Binding: Paperback
- Number of pages: 294
- Language: English
Summary
With the increasing importance of the concept of remedies in European
private law, this book focuses on remedies as a distinctive and novel
field of European legal research. It considers the common law tradition
(England and Wales), as well as the civil law viewpoint (on the example
of Germany), making the case for a European law of remedies.
It
is argued that ‘remedies’ are an enforcement tool influencing the scope
of substantive rights. In doing so, the book analyses different
mechanisms of enforcement, including the debate on private versus public
enforcement as well as the perspective of criminal law. The enforcement
of rights is understood as an intradisciplinary task. Remedial law is,
however, distinct from procedural law, as well as from substantive law
in a narrow sense. Subsequent to defining the scope of a law of
remedies, this book analyses several underlying principles and common
themes. For example, the proportionality test is presented as
fundamental principle in European remedial law. The value gained by
identifying common ground is e. g. illustrated with respect to damages
in European Private Law. Especially in IP law, in turn, the CJEU rulings
and secondary European legislation confirm the importance of
proportionate remedies. Moreover, within the law of remedies the
function of each remedy can be analysed, and respective interests can be
balanced.
Further examples that reveal the importance of a
sophisticated enforcement are the CJEU’s recent extension of the concept
of communication to the public, the notice-and-take-down-procedure in
intermediary liability cases and remedies for non-conformity of digital
content or consumers’ remedies in European contract law. In German
patent law, the development of grace periods and shareholders´ rights in
German corporate law can be analysed from a “remedy” perspective as
well.
Overall, this book demonstrates that remedies are more than
just an addendum and innovatively presents an emerging research area.
As such, it is of great relevance to all lawyers concerned with
questions surrounding the enforcement of rights: international academics
as well as practitioners.