Vanessa Mak is a Professor of Civil Law at Leiden University. Previously, she was a Professor of Private Law at Tilburg University. Her research focuses on the role of private law in the economic regulation of the European (consumer) market, with particular focus on consumer contract law, credit and investment law, data protection and the platform economy. Prior to her appointment in Tilburg, Vanessa held positions as a Lecturer in Law at Oriel College, Oxford and as a postdoctoral researcher at the Max Planck Institute for Comparative and International Private Law in Hamburg. Vanessa has law degrees from Erasmus University Rotterdam (LL.M 2001, cum laude) and from the University of Oxford (M.Jur 2002, with distinction; D.Phil. 2006).
This chapter examines the normative substance of rules of European private law. Lawmaking in this... more This chapter examines the normative substance of rules of European private law. Lawmaking in this field stands apart from transnational law due to its commitment to the objectives and values of European contract and consumer law. That characteristic means that, in theory, legal pluralism in European private law could go beyond a procedural approach — in which mechanisms of recognition and toleration determine how norm conflicts are mediated between legal orders — to a normative approach that prescribes to which values outcomes should adhere. The chapter submits, therefore, that European private law contains elements that allow for a ‘substantive deliberation’ of rules, values, and objectives. This means that a recursive process between lawmaking actors in which the substance of rules — laid down in public and private regulation — is examined, and adjusted if it falls below the threshold that EU law prescribes. Whilst the reference to objectives and values seems to imply an ordering of some sort, it is argued that a strong legal pluralist framework can still be maintained. The coordination of lawmaking can occur through an instrumental-normative approach.
Lagere rechters lijken vaker via een prejudiciele procedure bij de Europese rechter een oplossing... more Lagere rechters lijken vaker via een prejudiciele procedure bij de Europese rechter een oplossing na te streven die in de nationale rechtsorde buiten hun macht ligt, bijvoorbeeld omdat staande jurisprudentie een andere uitkomst voorschrijft. Gezien de expliciete rechtspolitieke overwegingen van de betrokken rechters kan hier gesproken worden van rechterlijk activisme. Kunnen we dat in de toekomst (nog) meer verwachten en zou dat een wenselijke ontwikkeling zijn? In deze voorstudie wordt een aanzet gedaan tot het in kaart brengen van de voorwaarden waaronder lagere rechters de prejudiciele procedure bij het Hof van Justitie op activistische wijze gebruiken.
ZEuP : Zeitschrift für europäisches Privatrecht, 2010
... | Ayuda. Harmonisation through "Directive-Related" Case Law: the Role of the ECJ in... more ... | Ayuda. Harmonisation through "Directive-Related" Case Law: the Role of the ECJ in the Development of European Consumer Law. Autores: Vanessa Mak; Localización: ZEuP : Zeitschrift für europäisches Privatrecht, ISSN 0943-3929, Nº. 1, 2010 , pags. 129-146. ...
This concluding chapter asserts that a case can be made for a strong legal pluralist theory of la... more This concluding chapter asserts that a case can be made for a strong legal pluralist theory of lawmaking in European private law. It takes a discursive approach, focusing on some aspects that require further consideration. The chapter considers how, and to what extent, the regulation of offline transactions is affected by the perceived shift towards legal pluralism. In addition, the chapter assesses which risks are posed to the instrumental-normative framework by political, economic, and social divides in the EU. Finally, the chapter closes with a reflection on the connections that could be made between certain fields such as citizens' rights as workers or in relation to environmental protection, opening up vistas for further research on lawmaking in European private law.
This chapter makes an analysis of the theoretical foundations of lawmaking in European private la... more This chapter makes an analysis of the theoretical foundations of lawmaking in European private law. It shows that they can be traced to transnational and constitutional pluralist theories. The main question is in which respects legal pluralism should replace the monist, state-centred perspective on lawmaking that prevailed in Western Europe since the creation of the Westphalian nation state. It is argued that, even though the state remains the primary locus for lawmaking in private law in the EU, the rise of private regulation and the interaction between courts through judicial dialogues plead in favour of adopting a strong legal pluralist perspective. ‘Strong’ or ‘radical’ legal pluralism, other than monism or ‘ordered’ legal pluralism, holds that norms can co-exist without a formal hierarchy. Both a descriptive and a normative case are put forward in support of adopting this perspective.
This chapter presents a second case study, focusing on standardisation. Standardisation is define... more This chapter presents a second case study, focusing on standardisation. Standardisation is defined as a process of private regulation whereby private actors engage in the development of standardised norms for particular sectors of industry or for particular types of contract. Standards, which are widely used in European markets, can also serve as a case study for determining whether the substance of norms created through private regulation can fulfil the instrumental-normative aims of a legal pluralist theory of lawmaking in European contract and consumer law. Here, the enquiry is delimited to harmonised standards in EU law. Harmonised standards are developed by European standard-setting organisations (ESOs) at the instigation of the European legislator.
This chapter delves into the substantive values that underlie contract and consumer law in the EU... more This chapter delves into the substantive values that underlie contract and consumer law in the EU. It shows that lawmaking in European contract and consumer law is embedded within the ordoliberal ideology on which the EU internal market was founded, yet is shaped not only by economic rights but also by social rights. Those rights have a basis in Articles 2 and 3 of the Treaty on European Union (TEU), which ground European cooperation in the common pursuit of a ‘highly competitive social market economy’ — social justice, equality, amongst other values and objectives. While the balance between economic and social rights in this area is in flux, the EU Treaties in combination with secondary legislation, case law, and the EU Charter of Fundamental Rights circumscribe a framework of shared values and objectives within which a substantive deliberation between lawmaking actors can take place. The chapter argues, therefore, that the EU legal order has a normative basis that enables legal pl...
This chapter charts which rules concerning contracts and consumer protection have until now emerg... more This chapter charts which rules concerning contracts and consumer protection have until now emerged in public and private regulation. These contain a mix of public regulation, co-regulation, codes of conduct, soft law projects to develop model rules, and reputational feedback systems. Also, online dispute resolution can in practice be a source of norms, as norms developed in this context are often through a feedback loop used to improve the quality of services offered by platform operators. Here, the chapter places the focus on the platform economy. Platforms themselves are actively working to provide mechanisms that can, at least partly, overcome the problems of enforcing consumer rights. They have an interest in securing trust between users who, even more than consumers in the offline world, are at a disadvantage in establishing the quality of goods and services and the reliability of their counterparty. Platforms therefore use mechanisms that can fill in a ‘regulatory void’.
This chapter examines the normative substance of rules of European private law. Lawmaking in this... more This chapter examines the normative substance of rules of European private law. Lawmaking in this field stands apart from transnational law due to its commitment to the objectives and values of European contract and consumer law. That characteristic means that, in theory, legal pluralism in European private law could go beyond a procedural approach — in which mechanisms of recognition and toleration determine how norm conflicts are mediated between legal orders — to a normative approach that prescribes to which values outcomes should adhere. The chapter submits, therefore, that European private law contains elements that allow for a ‘substantive deliberation’ of rules, values, and objectives. This means that a recursive process between lawmaking actors in which the substance of rules — laid down in public and private regulation — is examined, and adjusted if it falls below the threshold that EU law prescribes. Whilst the reference to objectives and values seems to imply an ordering of some sort, it is argued that a strong legal pluralist framework can still be maintained. The coordination of lawmaking can occur through an instrumental-normative approach.
Lagere rechters lijken vaker via een prejudiciele procedure bij de Europese rechter een oplossing... more Lagere rechters lijken vaker via een prejudiciele procedure bij de Europese rechter een oplossing na te streven die in de nationale rechtsorde buiten hun macht ligt, bijvoorbeeld omdat staande jurisprudentie een andere uitkomst voorschrijft. Gezien de expliciete rechtspolitieke overwegingen van de betrokken rechters kan hier gesproken worden van rechterlijk activisme. Kunnen we dat in de toekomst (nog) meer verwachten en zou dat een wenselijke ontwikkeling zijn? In deze voorstudie wordt een aanzet gedaan tot het in kaart brengen van de voorwaarden waaronder lagere rechters de prejudiciele procedure bij het Hof van Justitie op activistische wijze gebruiken.
ZEuP : Zeitschrift für europäisches Privatrecht, 2010
... | Ayuda. Harmonisation through "Directive-Related" Case Law: the Role of the ECJ in... more ... | Ayuda. Harmonisation through "Directive-Related" Case Law: the Role of the ECJ in the Development of European Consumer Law. Autores: Vanessa Mak; Localización: ZEuP : Zeitschrift für europäisches Privatrecht, ISSN 0943-3929, Nº. 1, 2010 , pags. 129-146. ...
This concluding chapter asserts that a case can be made for a strong legal pluralist theory of la... more This concluding chapter asserts that a case can be made for a strong legal pluralist theory of lawmaking in European private law. It takes a discursive approach, focusing on some aspects that require further consideration. The chapter considers how, and to what extent, the regulation of offline transactions is affected by the perceived shift towards legal pluralism. In addition, the chapter assesses which risks are posed to the instrumental-normative framework by political, economic, and social divides in the EU. Finally, the chapter closes with a reflection on the connections that could be made between certain fields such as citizens' rights as workers or in relation to environmental protection, opening up vistas for further research on lawmaking in European private law.
This chapter makes an analysis of the theoretical foundations of lawmaking in European private la... more This chapter makes an analysis of the theoretical foundations of lawmaking in European private law. It shows that they can be traced to transnational and constitutional pluralist theories. The main question is in which respects legal pluralism should replace the monist, state-centred perspective on lawmaking that prevailed in Western Europe since the creation of the Westphalian nation state. It is argued that, even though the state remains the primary locus for lawmaking in private law in the EU, the rise of private regulation and the interaction between courts through judicial dialogues plead in favour of adopting a strong legal pluralist perspective. ‘Strong’ or ‘radical’ legal pluralism, other than monism or ‘ordered’ legal pluralism, holds that norms can co-exist without a formal hierarchy. Both a descriptive and a normative case are put forward in support of adopting this perspective.
This chapter presents a second case study, focusing on standardisation. Standardisation is define... more This chapter presents a second case study, focusing on standardisation. Standardisation is defined as a process of private regulation whereby private actors engage in the development of standardised norms for particular sectors of industry or for particular types of contract. Standards, which are widely used in European markets, can also serve as a case study for determining whether the substance of norms created through private regulation can fulfil the instrumental-normative aims of a legal pluralist theory of lawmaking in European contract and consumer law. Here, the enquiry is delimited to harmonised standards in EU law. Harmonised standards are developed by European standard-setting organisations (ESOs) at the instigation of the European legislator.
This chapter delves into the substantive values that underlie contract and consumer law in the EU... more This chapter delves into the substantive values that underlie contract and consumer law in the EU. It shows that lawmaking in European contract and consumer law is embedded within the ordoliberal ideology on which the EU internal market was founded, yet is shaped not only by economic rights but also by social rights. Those rights have a basis in Articles 2 and 3 of the Treaty on European Union (TEU), which ground European cooperation in the common pursuit of a ‘highly competitive social market economy’ — social justice, equality, amongst other values and objectives. While the balance between economic and social rights in this area is in flux, the EU Treaties in combination with secondary legislation, case law, and the EU Charter of Fundamental Rights circumscribe a framework of shared values and objectives within which a substantive deliberation between lawmaking actors can take place. The chapter argues, therefore, that the EU legal order has a normative basis that enables legal pl...
This chapter charts which rules concerning contracts and consumer protection have until now emerg... more This chapter charts which rules concerning contracts and consumer protection have until now emerged in public and private regulation. These contain a mix of public regulation, co-regulation, codes of conduct, soft law projects to develop model rules, and reputational feedback systems. Also, online dispute resolution can in practice be a source of norms, as norms developed in this context are often through a feedback loop used to improve the quality of services offered by platform operators. Here, the chapter places the focus on the platform economy. Platforms themselves are actively working to provide mechanisms that can, at least partly, overcome the problems of enforcing consumer rights. They have an interest in securing trust between users who, even more than consumers in the offline world, are at a disadvantage in establishing the quality of goods and services and the reliability of their counterparty. Platforms therefore use mechanisms that can fill in a ‘regulatory void’.
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