This book explores various approaches around the world regarding price term control, and particularly discusses the effectiveness of two major paths: ex ante regulatory and ex post judicial intervention. Price control and its limits are issues that affect all liberal market economies, as well as more regulated markets.
For the past several years, courts in many different countries have been confronted with the issue of whether, and to what extent, they should intervene regarding price-related terms in standard form contracts – especially in the area of consumer contracts. Open price clauses, flat remunerations, price adjustment clauses, clauses giving the seller/supplier the right to ask for additional payments, bundling or partitioning practices, etc.: a variety of price related terms are used to manipulate customers’ choices, often also by exploiting their behavioral biases. The result is an unfavorable contract that is later challenged in court. However, invalidating a given price term in standard forms e.g. of a banking or utilities contract only has an inter partes effect, which means that in thousands if not millions of similar contracts, the same clauses continue to be used. Effective procedural rules are often lacking. Therefore, pricing patterns that serve to hide rather than to reveal the real cost of goods and services require special attention on the part of regulators.
The aim of this book is to determine the various approaches in the world regarding price term control, and particularly to discuss the efficiency of both paths, ex ante regulatory and ex post judicial intervention. Thanks to its broad comparative analysis, this book offers a thorough overview of the methods employed in several countries. It gathers twenty-eight contributions from national rapporteurs and one supra-national rapporteur (EU) to the 2018 IACL Congress held in Fukuoka. These are supplemented by a general report presented at the same IACL Congress, which includes a comparative analysis of the national and supranational reports. The national contributors hail from around the globe, including Africa (1), Asia (5), Europe (17), the European Union (1) and the Americas (5).
Mục lục
Part I.- General Report.- Control of Price Related Terms in Standard Form Contracts: General Report.- Part II.- Supranational Report: European Union.- Control of Price Related Terms in Standard Form Contracts in the European Union: The Innovative Role of the CJEU’s Case-Law.- Part III.- National Reports.- Control of Price Related Terms in Standard Form Contract in Argentina.- Control of Price Related Terms in Standard Form Contracts in Austria: Judicial Control and Other Means of Price Control.- Control of Price Related Terms in Standard Form Contracts in Belgium.- Control of Price Related Terms in Standard Form Contracts in Brazil.- Control of Price Related Terms in Common Law Canada: Piecemeal Solutions to Demonstrated Problems of Unfairness.- Control of Price Related Terms in Standard Form Contracts in Canada (Civil Law): Le prix dans les contrats de consommation, les contrats d’adhésion et les contrats réglementés – pouvoir d’intervention des tribunaux et autres modes de contrôle des prix en droit Québécois.- Control of Price Related Terms in Standard Form Contracts in Chile: Price Control and the External Intervention of Contracts in Chilean Law.- Control of Price Related Terms in Standard Form Contracts in China.- Control of Price Related Terms in Standard Form Contracts in Croatia.- Control of Price Related Terms in Standard Form Contracts in Denmark: Pragmatism and General Clauses.- Control of Price Related Terms in Standard Form Contracts in Estonia: Judicial Control and Other Means of Price Control.- Control of Price Related Terms in Standard Form Contracts in France.- Control of Price Related Terms in Standard Form Contracts in Germany.- Three Modes of Regulating Price Terms in Standard-Form Contracts—The Israeli Experience.- Control of Price Related Terms in Standard Form Contracts in Italy.- Control of Price Related Terms in Standard Form Contracts in Japan.- Control of Price Related Terms in Standard Form Contracts in the Netherlands: Exclusion of Clauses Pertaining to the Core of the Contract.- Control of Price Related Terms in Standard Form Contracts in Romania.- Freedom of Contract in Respect of Price Terms in Russian Law: With a Special Focus on Price Terms in Standard Form Contracts.- Control of Price Related Terms in Standard Form Contracts in Singapore.- Control of Price Related Terms in Standard Form Contracts in Slovenia.- Control of Price Related Terms in Standard Form Contracts in South Africa.- Control of Price Related Terms in Standard Form Contracts in Spain.- Control of Price Related Terms in Standard Form Contracts in Switzerland—The Control of Standard Contracts Terms: The Swiss Approach.- Control of Price Related Terms in Standard Form Contracts in Taiwan: Control of Price Related Terms Through the Legislator, the Judiciary and the Administration.- Control of Price Related Terms in Standard Form Contracts in Turkey: Judicial and Other Means of Price Control.- Control of Price Related Terms in Standard Form Contracts in the UK: Regulating Prices and Charges in the UK: Information Versus Substance, General Clauses Versus Rules Developed by Regulators.
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im M. Atamer is a full professor of Private Law and Comparative Private Law. Her main areas of research are consumer law, law of domestic and international sale of goods, and contract law and theory. Atamer has been a visiting scholar/professor at Basel, Bern, Bucerius, Harvard, and NYU law schools as well as at the Max Planck Institute for Comparative and International Private Law. She is elected member of the Science Academy (Turkey); the International Academy of Comparative Law, and the International Academy of Commercial and Consumer Law. Atamer serves also on the CISG Advisory Council since 2013.
Pascal Pichonnaz is a full professor for Swiss and Comparative Contract Law, European Consumer Law and Roman Law. He has been visiting scholar/professor at Georgetown, Paris 2, University of Rome 2, Pontificia Universidad Católica de Chile, Montpellier, Liège, Istanbul Bilgi University, Trento law schools. He is the editor in chief of the Revue de droit suisse/Zeitschrift für Schweizerisches Recht, and member of several editorial boards of Swiss and International Journals. Among others he is elected member of the Council of the European Law Institute (ELI) and the International Academy of Comparative Law. He serves regularly as arbitrator in commercial matters and as elected arbitrator of the CAS. Pichonnaz serves also as the acting President of the (Swiss) Federal Consumer Commission.
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