Volume 23 (2015) / Issue 2
Abstract: This article deals with the (substantive) scope of the Common European Sales Law (CESL), what it regulates or does not regulate, and how it relates to the remaining national law. It explores more specifically the implications of the EU nature of the CESL, i.e., the consequences of the fact that it is (European) Union law and not just another kind of Convention for the International Sale of Goods (CISG) where you can opt for. Although, as CISG, it is part of domestic law, its position is, in many other respects, different mainly because CISG is not Union law and the CESL is. As Union law, the CESL Regulation takes precedence over - the rest of - national law. The question of whether the CESL is - validly - chosen by the parties is thus not determined by the remaining national law but by CESL itself. CESL displaces the rules of the otherwise applicable law insofar as the issue falls within the scope of CESL. The article tries to settle some demarcation issues in this regard. Further, it explores the possible effects of the principle of effectiveness or effet utile applied to CESL and possible implications of the Charter of Fundamental Rights. Finally, it explores whether a duty to allow CESL in domestic contracts may follow from national constitutional law.
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