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Downloads/Jurisdiction of Choice Brochure.Pdf Dear reader, This issue of Juridica International continues a solid tradition of offering articles to a wide range of readers while concentrating on one central topic, which this time is the prospects of the right of obligation in Estonia and in Europe. With 2012 came the 10-year anniversary of entry into force of the Law of Obligations Act, the last of the fi ve parts that make up the Estonian Civil Code Act. The highly signifi cant event for Estonian private law of its entering into force on 1 July 2002, together with the General Part of the Civil Code Act, was celebrated on 29–30 November 2012 in Tartu by an international conference at which the issues of implementation of the act were discussed and the tendencies in development of the right of obligation in Europe were analysed. The Law of Obligations Act may be called a science-based act, since its preparation involved analysis of the law of other countries, the sources of common European contract law and international law, and foreign judicial practice at the level of norms and principles, as well as implementation. This was an act pre- pared on the principle of the ‘best solution’, one that contributed substantially to the foundation for comparative legal implementation of law and for theoretical studies in comparative law. The method of the best solution has since justifi ed itself, along with adoption of the principles of common European contract law and international trade law. It can be said that efforts to develop direct legal loans, foreign judicial practice, and theoretical views into an internally coherent system that functions without major failures yet can still be called modern and European law in its essence have succeeded. However, it would be incorrect to state that all purposes of the act have been fulfi lled—mainly in light of the regulations that have been added later. For instance, the actual purposes of the consumer-protection norms in the Law of Obli- gations Act and other acts have become questionable, since the solutions provided are ineffective and often discordant with the already developed private-law system. Accordingly, several articles in this issue are dedicated to critical analysis of the pur- poses of the act and the legal instruments chosen for achieving these purposes. In the decades since the act was passed, the meaning of national law has changed signifi cantly. In this issue, the reader can fi nd an article by H. Beale, based on a pre- sentation in the private-law portion of the XXXII Estonian Lawyers’ Days (‘The Constitution at 20: Legal Practice from Pragmatism to Constitutionalism’), examin- ing the Common European Sales Law as a competitor or alternative to the Estonian law. In his article, Prof. Beale gives a simple and clear explanation of the prospects of the private law in the Member States. He envisions competition with the com- mon European private law, which, as part of each Member State’s national law, will become a 29th legal system. Publication of a presentation of the proposal for the Common European Sales Law by the European Commission has unleashed new pro- cesses in European private law. Therefore, on one hand, we can say with satisfaction that, in principle, Estonia has established its modern private-law system and there is no need for its constant large-scale amendment and rewriting. On the other hand, however, the situation foreseen, involving impending competition, forces the Mem- ber States to undertake critical analysis and modernisation of their national legal systems. Issues related to the wider functions of international private law and the position of national law in the private-law system and in administration of justice in the European Union arise with increasing acuteness in this process. Since each legal system in Europe represents an independent legal culture char- acteristic only to that legal system, it is inevitable for interpretation of law also to JURIDICA INTERNATIONAL XX/2013 1 be culturally determined. In my opinion, the critical element for Estonian law is the lack of fundamental dogmatics of private law in several important fi elds related to the right of obligation. Considering the Law of Obligations Act from a development perspective in the context of shaping a common European private law means that our understanding of the internal structure of our laws, the hierarchy of our norms, and the methods for interpretation and implementation of law becomes important. For instance, several issues of legal dogmatics pertaining to legal remedies in the Estonian law are raised in this issue of the journal, along with the actual level of protection accorded to consumers in consumer-credit contracts, restitution upon expiry of a contract, etc. It is equally important to know what problems are addressed in Latvia, Russia, Germany, Belgium, or the Nordic countries. The development of the common European law proceeds from the presumption that supplier parties are less and less tied to a specifi c country and that, therefore, a neutral law shall be provided to the market participants, so as to speed up and support economic circulation. This would be benefi cial to consumers and undertakings alike since it would eliminate the advantages enjoyed by states with so-called well-developed legal systems, whose law is trusted more. Neutral law is based on specifi c defi nitions and rules. Estonian lawyers have certain advantages in this process, in that the Law of Obligations Act largely contains the law that has come to be defi ned as the Common European Sales Law. However, that is not enough. Develop- ment of a common understanding is rooted in comparative legal studies, which have not yet, however, been performed in suffi cient quantities in Estonia. Turning from private law to common understanding, I would now like to emphasise the importance of law, especially comparative law, in the development of a state’s legal system. To the best of my knowledge, legal base studies have received no support or acknowledge- ment from the Estonian state in recent years. Vital for a strong economy are a coherent legal system and the effective functioning of that system; however, to come up with the best solutions, we have to be familiar with the law of other states, common European private law, and international trade law. In doing so, we should still bear in mind, though, that the basis for comparative legal studies is formed fi rst and foremost of a systematic and scientifi cally grounded understanding of the law of one’s own state, which is, above all, a process, not a condition justifi ed simply by declaring that the Estonian private-law system is complete and needs no amendments. Comparative legal studies form an inseparable part of more than just private law. The articles on envi- ronmental law, fi nancial law, administrative law, penal power, and procedural law published in this issue are also based on comparison, whether norm-based or functional. It is important for us to know what the problems in other countries are and whether they have developed solutions that we could adopt. Esto- nian participation in the global discourse through legal studies is equally important and a process in which Juridica International continues to play an important part. Irene Kull 2 JURIDICA INTERNATIONAL XX/2013 Contents: Christian von Bar The Role of Comparative Law in the Making of European Private Law 5 Kåre Lilleholt Application of General Principles in Private Law in the Nordic Countries 12 Hugh Beale The CESL Proposal: An Overview 20 Karin Sein Protection of Consumers in Consumer-Credit Contracts: 32 Expectations and Reality in Estonia Age Värv Restitution of Performances after Avoidance of Contracts 41 under the CESL and Estonian Law Piia Kalamees, Should Price Reduction be Recognised as a Separate Contractual Remedy? 52 Karin Sein Irene Kull, Fitting the Estonian Notions of Contractual and Non-contractual 61 Maarja Torga Obligations under the European Private International Law Instruments Kaspars Balodis The Latvian Law of Obligations: The Current Situation and Perspectives 69 Patrick Praet A Farewell to (Private) Law: Musings on the Belgian Law of Obligations 75 Evgeny Krasheninnikov, Agreements and Decisions 85 Julia Baigusheva Natalya Rasskazova Independent Security Rights under Russian Legislation 94 Andra Olm Non-married Cohabiting Couples and Their Constitutional 104 Right to Family Life Kristel Degener Kommissionsvorschlag zur Klärung der Vermögens verhältnisse 112 bei internationalen Paaren und mögliche Folgen Sten Andreas Ehrlich, Loyalty to the EU and the Duty to Revise Pre-Accession 121 Carri Ginter, International Agreements Triin Tigane Eve Fink The Possibility of Protection of Legitimate Expectations in Recovery 133 of Unlawful State Aid JURIDICA INTERNATIONAL XX/2013 3 Contents Einar Vene Wirksamkeit des angefochtenen Verwaltungsakts als 142 Voraus setzung für die Statt gebung der Aufhebungsklage in der Rechtsetzung und Rechtsprechung Estlands Kristīne Jarinovska Popular Initiatives as Means of Altering the Core of the Republic of Latvia 152 Kalle Merusk, Problems of Estonian Local Government in 2013 and Co-operation 160 Vallo Olle as an Instrument of Their Resolution Hannes Veinla, Operators’ General Obligations as an Environmental 169 Siim Vahtrus Duty of Care Toomas Saarma Principles of Debt Restructuring and Restrictions on Initiation 179 of Debt Restructuring Proceedings Ants Soone Does Commission Proposed Financial Transaction Tax Comply 188 With European Union Law? Mait Laaring Law as Danger-prevention Law 197 Laura Feldmanis Freiwilligkeit – gleichzeitig der Eckstein und der Stolperstein 206 bei der Behandlung des Rücktritts vom Versuch: Die Bestimmung des Begriffes der Freiwilligkeit und die Abgrenzung vom misslungenen Versuch Kai Härmand State Fees: Is the Legislator Free in Setting the Rates of State Fees? 215 An Estonian Example Marju Luts-Sootak, Das römischrechtliche precarium im deutsch-baltischen 222 Hesi Siimets-Gross und estnischen Recht: eine Besonderheit aus der estnischen Rechtsgeschichte 4 JURIDICA INTERNATIONAL XX/2013 Christian von Bar Professor University of Osnabrück The Role of Comparative Law in the Making of European Private Law 1.
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