Muir Watt, Horatia; Sefton-Green, Ruth --- "Fitting the Frame: An Optional Instrument, Party Choice and Mandatory/Default Rules" [2010] ELECD 226; in Micklitz, Hans-W.; Cafaggi, Fabrizio (eds), "European Private Law after the Common Frame of Reference" (Edward Elgar Publishing, 2010)

Book Title: European Private Law after the Common Frame of Reference

Editor(s): Micklitz, Hans-W.; Cafaggi, Fabrizio

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848444072

Section: Chapter 10

Section Title: Fitting the Frame: An Optional Instrument, Party Choice and Mandatory/Default Rules

Author(s): Muir Watt, Horatia; Sefton-Green, Ruth

Number of pages: 20

Extract:

10. Fitting the frame: an optional
instrument, party choice and
mandatory/default rules
Horatia Muir Watt and Ruth Sefton-Green

I. INTRODUCTION

1. Tool-box, Code or Mere Source of Inspiration?

The legal status of the proposed Common Frame of Reference is, to say the
least, somewhat obscure.1 A recent press release by the Council2 now defines it
as `a set of non-binding guidelines to be used by the lawmakers at Community
level on a voluntary basis as a common source of inspiration or reference in the
lawmaking process'.3 The academic Draft Common Frame of Reference4 indi-
cates, too, that it has been drawn up on the assumption that it could serve as a
legislator's guide or tool-box, leaving open its destiny as a political text.5 As a
mere source of inspiration to which Community lawmakers may or not choose
to refer, such a framework is clearly of seriously diminished interest. Indeed, in
this perspective, it becomes entirely unimportant that whatever text emerges
from the political process may not be a `frame of reference' at all, in the sense


1 See von Bar, C., E. Clive and H. Schulte-Nölke (eds) (2008), Principles,
Definitions and Model Rules of European Private Law: Draft Common Frame of
Reference Interim outline edition, Sellier (henceforth `DCFR') para. 6, admitting that
it is mute whether and to what end and by what means there will be a Common Frame
one day. See Reich, N. (2006), `A Common Frame ...