CYIL 2012

PARALLEL NATIONAL AND INTERNATIONAL LAWS ȃ CZECH LAW AND THE PROPOSED… • The consumer’s duty to pay the price is relaxed in cases where the goods have yet to be delivered and the seller is able to make a reasonable substitute transaction without significant effort or expense. 85 Zoll notes the significance of this limitation of the seller’s right to receive payment due to the fact that if “the goods are standardized then there will usually be a feasible substitute transaction.” 86 Professor Zoll concludes that under CESL, the “principle of pacta sunt servanda is weakened in favor of consumer protection.” 87 This is not necessarily a bad outcome, but demonstrates the difficulty of combining contract law and its freedom of contract principle with consumer protection in a single legal instrument 3.7.3 Preemption of Stricter National Consumer Protection Laws CESL provides that where the parties agree to use CESL then only CESL rules apply to the contract. 88 It states that CESL “shall govern the matters addressed in its rules.” This can be interpreted to include consumer protection law since CESL contains mandatory consumer protection rules. If existing or future national consumer protections laws prove to be more protective, then the consumer will lose the benefits of the Rome I Regulation, 89 which directs the courts to apply the law of the consumer’s country if those laws are more protective than the laws of the country stated in a choice of law clause. A savvy trader would be able to avoid those more restrictive laws by selecting CESL as the choice of law. However, due to the numerous EU consumer protection Directives this does not seem to be the case at the present. But, in the future, it is conceivable that national laws could provide greater protection of consumers than is found in CESL. 4. CESL and the CISG What is the relationship between CESL and the CISG? Twenty-three of the twenty-seven EU countries have adopted the CISG as their international sales law. Is there a possibility that these two legal regimes could overlap and thereby increase uncertainty? The consensus opinion is that CESL is complimentary to the CISG because the CISG is an opt-out instrument. Article 6 of the CISG states that the “parties may exclude the application of this Convention or derogate from or vary the effect of any of its provisions.” Therefore, if the parties to a contract expressly opt into CESL, then that would by necessity be an opt-out of the CISG. So, the possibility of overlap is at worst minimal in nature. The opt-in and opt-out nature of these two instruments appear to give a sophisticated trader an opportunity to use both laws in available at: http://www.europarl.europa.eu/committees/fr/studiesdownload.html?languageDocu ment=EN&file=74547. 85 CESL, Article 132(2). 86 Fryderyk Zoll, “The binding power of the contract –protection of performance in the system of the Common European Sales Law”, 12 Journal of International Trade Law and Policy (2012) (in press). 87 Ibid. 88 CESL, Article 11. 89 Article 6(2) Rome 1.

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