English lawyers’ stance on exports

YOUR article “SME export drive ‘hamstrung’” (Business, 25 September) did not explain the position of the Law Society of England and Wales in relation to the European contract law initiative.

The Law Society is supportive of initiatives to improve the functioning of the internal market but, like many stakeholders across the European Union, the Society believes that there is not a need for an “optional instrument” nor that it would necessarily increase cross-border trade. An “optional instrument” of contract law would have no underlying jurisprudence and practitioners are concerned that this would lead to uncertainty for contracting parties who would not be able to rely on an established body of case-law.

The society believes that this would in fact generate, rather than reduce, work for lawyers. Even once such a body of case-law had been developed (requiring much litigation on the part of private parties), it would continue to be extremely difficult to ensure the application of a new system of contract law across 27 countries with their different legal traditions. This risks confusion and greater difficulty. There is also a lack of clarity as to how any optional mechanism would operate.

Instead the society supports initiatives to increase access to practical redress for businesses and consumers as an effective means of increasing cross-border trade. The “optional instrument” would not cover tort law, property law or aspects of contract law falling outside its scope and so businesses would still need to consider national laws when entering into cross-border contracts. Furthermore, practitioners are concerned that a number of issues, including consumer protection rules, administrative barriers and procedural barriers are being conflated with underlying contract law.

John Wotton, President, Law Society of England and Wales