Research Tilburg Institute for Private Law (TIP)
Private law is both a system and a practice. As a system, it encompasses all the rules, principles and decisions that regulate the behaviour of private actors. As practice, it involves the interpretative community by which it is applied and followed. Because of this dual character private law, as any other branch of law, is characterized by a relative autonomy. It stands out as an independent system of norms and a practice of norm-guided behaviour, but it is also in constant interaction with its legal and social context. In other words, private law is simultaneously responsive to certain developments, and resistant to others. The research programme of TIP focuses on responsiveness in private law. Private law relationships are crossing borders and so are lawmaking and, to a growing extent, adjudication in private law. Private law relationships – whether in trade, personal life, or otherwise – may involve a number of parties in different jurisdictions and they may be governed by several sets of State and non-State rules. The traditional paradigm of private law as a self-contained national system is no longer in step with current legal practice and scholarship. Nor is the focus on national institutions of the making and application of law.
This leads to three questions:
- To what extent, and in what ways, is private law responsive to globalization and its challenges?
- To what extent, and in what ways, is it resistant to these new demands and aspirations?
- To what extent should private law be responsive to them?
These questions will form the starting point for research in several selected areas of expertise within the Private law research program:
a. Lawmaking in a pluralist legal order
Under this theme heading, we explore responsiveness and resistance between lawmaking actors in European private law. Although the proliferation of lawmaking actors outside the nation state can be observed globally, the main focus of the research will be on European private law. The EU is one of the most advanced examples of regional cooperation between nations with regard to economic, but also political and social issues. Using the EU framework as a case study can provide good testing ground for other post-national lawmaking projects.
- The consumer credit market is currently regulated by EU legislation and by more specific rules of national legislation. Despite the existing regulatory framework, consumer debt remains problematic. Nowadays, various alternatives to the current ‘information paradigm’ (e.g. nudging) have been suggested. However, hardly any of them is yet empirically tested within the context of consumer credit. This empirical research analyzes how consumer decision making can be improved through modifications in current regulation in order to improve consumer decision making when it comes to financial products and to prevent problems for banks due to non-performing loans (Jurgen Braspenning)
- Strategies for lawmaking / private law theory (Vanessa Mak) The aim of the research is to explore in what ways lawmaking in private law can respond to the proliferation of lawmaking actors in a post-national setting. The main proposed strategy explores the idea that standards in European private law can offer an alternative model for legal integration.
- Private actors: citizens, consumers, employees, legal practice (Vanessa Mak) Projects under this heading explore how private actors can be involved in lawmaking. The question explored relates to the process of lawmaking, but on a more fundamental level also to the question who can be regarded as lawmaking actors in private law in times of globalization, and who should be.
- Self-regulation / codes of conduct (Marie-Claire Menting) Starting from an empirical inquiry into the functions of codes of conduct in a multi-layered European and Dutch private law, the research aims to identify whether there is a need for a framework for the use of codes of conduct in private law and, if so, what it could look like.
- Digital content and contract law (Daniëlle Op Heij) The project examines whether the current remedies in Dutch contract law can provide an appropriate response to cases of delivery or functioning problems with digital content, and if not, which regulatory changes should be made to improve the applicable remedies for different types of consumers.
- Law as a signaling system (Eric Tjong Tjin Tai) The aim of the project is to approach the system and practice of law from the notion of ‘signals’ in a network of actors, instead of as a rule-driven hierarchical command structure. The hypothesis is that this approach may explain and predict certain contemporary legal phenomena and developments better than the traditional view of law.
Some projects in other research themes described below also connect with questions of lawmaking and pluralism in (European or transnational) private law. Examples are: highest courts (Marc Loth); consumer credit regulation (Jurgen Braspenning); financial collateral arrangements (Yael Diamant)
The calculation of damages for breach of contract (Zihan Niu) The aim of the project is to identify in which ways damages for breach of contract are calculated in English and in Chinese law, and in the CISG. Further, the research aims to assess how the calculation of damages is influenced by cultural factors. Dissertation thesis is titled: “The law of damages in Chinese contract law: A comparative study of damages calculation in Chinese law, English law and the CISG, with empirical results from Chinese practice.” Defended 4-09-2015. Promoters were Eric Tjong Tjin Tai and Vanessa Mak
Staff and Publications
- Mak, Vanessa
- Tjong Tjin Tai, Eric
- Gestel, Rob van
- Menting, Marie-Claire
- Braspenning, Jurgen
- Snel, Marnix
- Golen, Thomas van
- Op Heij, Daniëlle
b. Responsiveness through the courts;
Highest national courts in a pluralist legal order are not just responsible for the uniformity and the development of national law, they have become responsible for the application of transnational and European law within the national legal system as well. This changes their position from that of a highest court the top of the pyramid of the national judicial organisation into that of, metaphorically speaking, the spider in a seamless web of (trans)national adjudication. How do they adapt to this changing position? In what sense and to what degree are they responsive to their new tasks and responsibilities? And in what sense are they resistant or ineffective as courts of transnational and European law? How could their functioning as such be improved? Research into these questions necessarily presupposes a comparative and interdisciplinary approach. Comparative, since the highest courts from different (European) legal systems can best be assessed from this perspective (how do they do, relatively speaking?). Interdisciplinary, because this involves research of an institutional, legal, and empirical kind (what kind of institutional, legal and empirical characteristics and circumstances are responsible for the differences in performance?).
- Family law procedures, the role of judge and other participants: how can this procedure be improved to reach long lasting solutions? (Paul Vlaardingerbroek).
- Hearing of children (Veronica Smits).
- E-mediation (Paul Vlaardingerbroek, Veronica Smits, Corry van Zeeland).
- Legal needs of individuals in collective redress (Karlijn van Doorn, Ianika Tzankova).
- Claims resolution facilities (Ianika Tzankova).
- Negotiation (Alain Verbeke).
- Civil procedure (Bert van Schaick).
The declaratory judgement (Nadine Groeneveld-Tijssens) Many practitioners of law struggle with the declaratory judgement. They do not know exactly when to ask for a declaratory judgement nor how to do so. The goal of the project is 1) to explain which function(s) the declaratory judgement currently has in our national system and 2) to decide whether these function(s) suffice or whether they should be expanded or limited. The second question is considered with reference to comparative sources from other legal systems.
Staff and Publications
c. Contracts and networks
In the classic view of contracts, contractual arrangements work because they provide legal certainty of the precise responsibilities that are assumed by parties. With the act of contractually specifying what is agreed on, parties fixate and communicate their respective positions. However, as modern contract theory recognises, such fixation is only possible to a very limited extent, and actually is not even desired to such an extent by the contract parties themselves. This does not mean that there is no need for legal certainty, only that this is a merely a limited virtue. In modern contract practice parties rather wish to have a certain flexibility to adapt to unforeseeable developments, while still having sufficient guarantees that fair results will be obtained. This means that contractual communication should not solely occur through the contract but rather beside and outside the contract, thereby influencing the contract itself. Hence contracts themselves should become responsive. On the one hand, courts have responded by allowing contractual and pseudo-contractual constructs to create ties between parties that were not explicitly made (connected contracts). On the other hand, in certain areas a reconceptualisation of contract theory is required to allow interacting parties to modulate their positions according to growing insights in their relationship. There are a number of lines of research to be pursued.
- Interactive contract design (Eric Tjong Tjin Tai). In certain areas, in particular those involving uncertain results (such as innovative processes), there is a need to contract without too much fixity, while allowing for fair outcomes in case the contractual cooperation has profitable or valuable results. Modern research suggests that in such cases what is needed is not a detailed contract but rather a framework in which parties interact and communicate in order to work during the lifetime of the relationship towards filling in the details as necessary. The question is what kind of framework would be appropriate, and how traditional or new forms of legal regulation come into play.
- Connected contracts (Eric Tjong Tjin Tai, Stéphanie van Gulijk). Contracts are traditionally considered on the model of simple two-party contracts that have in principle only effect between parties. Modern theory and case law has increasingly recognised the existence of multi-party contracts and connected (groups of) contracts, which have issues peculiar to these kinds of contracts. In a fixated view of contracts, an analysis of this problem field would necessitate a concentration on legal consequences. From the point of view of communication, it appears more fruitful to consider such contracts as involving communication obligations and structures between parties, that require and allow changes of position during the life of the contract. This can also explain the possibility that changes to one contract can influence another contract.
- Compliance to professional codes of ethics and organisational structure, applied to banking (Reinout Wibier, Eric Tjong Tjin Tai). One reaction to the role of banks in the credit crunch is to stimulate or even make mandatory explicit allegiance to professional codes of conduct. There is however significant doubt about the effectiveness of such codes, as they merely communicate a symbolic allegiance that need not lead to compliant conduct, in particular where the surrounding organisation stimulates contrary behaviour. The mixed signals individuals receive lead to unsatisfactory results. Insights from other disciplines such as ethics and organisation theory are hypothesised to Tilburg Institute of Private Law – Research programme 2014-2018 14 help in redesigning more effective structures that reinforce positive communication and shield from contrary information.
- Communication in complex building contracts (Stéphanie van Gulijk). Several national and international cases of failed building cooperations have led to investigations that concluded that the causes of failure were largely due to a lack of successful communication between the building partners. Complex construction contracts, where different actors cooperate, either in vertical or horizontal relations, are typical examples of connected contracts. Instead of traditional bilateral (often reactive and static) obligations between contracting parties, multilateral and interactive obligations between contracting and third parties are required.
- Obligations, remedies and liability in multi-party contracts (Stéphanie van Gulijk). The project explores whether private law is sufficiently responsive to the enforcement of statutory and contractual remedies in multi-party (construction) contracts.
- Liability in health care networks (Charlotte Zegveld). The research concerns the question whether social network analysis can be an aid / a tool with regard to allocating civil liability in cases of inadequate coherent health care provided by multiple health care providers.
- European private law and building contracts (Chris Jansen)
Staff and Publications
d. The Dynamics of Tort Law and Society
Fundamental, cutting-edge research is conducted on the intersection of tort law, victims’ needs, theory, and empiricism. Research has shown a tension exists between tort law and societal needs. Victims desire information about what happened, want to prevent future wrongdoing, seek acknowledgement of the harm, or wish that wrongdoers apologize for their actions. In contrast, tort law mainly offers monetary compensation. This research cluster seeks to whether, why, and how tort law can be made more responsive to those needs. It does so by combining a theoretical perspective and an empirical perspective, with the aim of providing innovative insights to solve existing theoretical and societal problems.
- 'Mea culpa' and civil justice: towards an apology-friendly tort system (Lianne Wijntjens). This research tests whether and how legal procedures, tort law in particular, can remove barriers for wrongdoers to offer an apology.
- Victim-oriented tort law in action (Gijs van Dijck). This project empirically examines whether a victim-oriented tort law is possible, and it identifies obstacles for creating a victim-oriented tort law.
- Towards a new concept of damages (Gijs van Dijck). Concepts of repair, damages, and losses are generally backward-looking, comparing victims after the wrong with them before the wrong. Does including more forward-looking elements in the test to determine and assess damages enable to better take victims’ needs into consideration? This project examines the possibilities.
- Shifting patterns of justification in tort law (Marc Loth). This project seeks to improve the understanding of how to justify tort law. What are the major patterns in the justification of liability in different legal systems? And what shifts have taken place in those patterns? How are they to be assessed from different perspectives, such as that of unifying principles or cost efficient regulation? Can the answers to these questions bring some coherence in the justification of liability in tort law, of even set some limits to its ongoing proliferation?
- Catholic Church sexual abuse victims’ needs (Gijs van Dijck). Empirical research explores the needs victims of sexual abuse by the Catholic Church have who seek repair of the harm in a tort-like procedure.
- The Legal Apology (Gijs van Dijck). Research has been conducted on apologies and the effect of apologies. This project defines and explores a legal apology: What does a concept of a legal apology consist of and entail?
Staff and Publications
e. Banking, finance and insolvency
The research in the banking & finance team will focus on a number of topics that all have a close connection to the global debt- and banking crisis that still has not been resolved. The responsiveness of private law to the new reality25 created by this crisis is an important question. Developments include: - the continuing economic crisis which leads to further efforts from the European legislator in relation to banks and other financial institutions. The European legislature is slowly moving towards a banking union which, among other things means that national legal systems continue to be confronted with new legislation. - continued efforts to modernize Dutch insolvency law as a tool for efficient restructuring of companies in financial difficulties. In times of economic downturn questions of the ability of insolvency legislation to restructure companies in financial difficulties often arise. This economic crisis is no exception. The main question is whether Dutch private law will be able to be sufficiently responsive in light of these external developments. At the end of this research period, this question will be answered for a number of key areas of property and insolvency law with a special emphasis on the ability of private law to respond to regulatory developments where regulation (public law) slowly seems to invade the field of private law.
- Present and future claims under Dutch law (Jurian Snijders): What are the criteria for determining whether a claim is present or future under Dutch law and can these criteria be improved form a systematic point of view?
- The balance between debtors and creditors in distressed situations (Reinout Vriesendorp): More regulation in the field of banking, the creation of a European banking union, stricter capital requirements, lower economic growth for at least the foreseable future, more alternative forms of finance, etc. Sukuk are bonds issued in accordance with Islamic law. How does private law and insolvency law influence the respective positions and solutions of the debtor towards his creditors; which factors (legal or otherwise) determine the options for restructuring or liquidation inside or outside formal insolvency proceedings?
- Property and insolvency law after the crisis (Reinout Wibier): The research tries to come to terms with the rapid changes in the financial world in relation to property & insolvency law and the regulatory framework surrounding the financial world. This includes changing perspectives on national insolvency law due to rapidly evolving supreme court judgements and the (mainly European driven) revolution in regulating financial institutions, primarily banks and insurance undertakings.
- Insolvency and multi-party construction contracts (Stéphanie van Gulijk/Reinout Wibier) The project explores the effects of bankruptcy on different parties in multi-party construction contracts, and seeks to identify in which circumstances insolvency law and construction law are not attuned to dealing with these effects.
- What is ‘responsible lending’? (Vanessa Mak) The project assesses if and how the recently adopted EU Directive concerning consumer mortgage credit agreements (Directive 2014/17/EU) contributes to defining a common “responsible lending” policy in the varied contexts of the Member States’ mortgage markets. It addresses that question by analysing how the Directive’s rules will complement or change the regulatory regimes of the UK and the Netherlands.
- The instrumental use of mortgage rights against value destruction of commercial real estate to help maintain the stability of the financial system (Suzanne van Bergen): Is there a need to modify the Dutch right of mortgage in order to meet the challenges of a financial crisis?
Balancing the publicity principle of property law as exemplified by a public land registry, with the privacy of those registered. Is there a manner in which access to the land registry can be arranged to serve both data protection considerations and the publicity principle of property law? (Anna Berlee)
- Financial Collateral arrangements (Yael Diamant): Is there indeed an actually harmonized legal European regime, which averts high costs and severe delays for cross-border transactions and brings about legal certainty and predictability regarding the validity and enforceability of financial collateral arrangements? Dissertation thesis title: ”De Collateral Richtlijn: Een rechtsvergelijkende studie naar de implementatie van de goederenrechtelijke aspecten van de Collateral Richtlijn”. Defended on 21-01-2015. Promotors were Reinout Wiebier and Vanessa Mak.
- Islamic finance (Omar Salah): How can sukuk26 transactions be structured under Dutch law and what legal issues arise when structuring sukuk under Dutch law? Dissertation thesis title: “Sukuk structures: Legal engineering under Dutch law”. Defended on 25-04-2014. Promotors were Reinout Vriesendorp and Reinout Wiebier.
- Insolvency of insurance undertakings (Noortje Lavrijssen): Is there a need to amend insolvency law in relation to insurance undertakings from the perspective of consumers? Dissertation title: “Verzekering verzekerd”. Defended on 17-04-2015. Promotors were Jan Vranken and Reinout Wiebier.