Book Review: Law of Remedies – A European Perspective

The availability or not of certain remedies influences the scope of substantive rights. Moving from this consideration, this book analyses different mechanisms of enforcement, the debate on private versus public enforcement, as well the perspective of criminal law. After defining the scope of a 'law of remedies', this work explores several underlying principles and common law themes. The proportionality test is, for instance, characterised, as a fundament principle in European remedial law. The value gained from identifying a common ground is also illustrated with respect to damages in European private law.

Edited by Franz Hoffmann and Franziska Kurz, the book includes chapters authored, respectively by: Franz Hoffmann and Franziska Kurz, Paul S Davies, Jan Felix Hoffmann, Andreas Funke, Klaus Ulrich Schmolke, Jens-Uwe Franck, Dorothea Magnus, Bejamin Raue, Luboš Tichý, Christian Heinze, Orit Fischman Afori, Martin Husovec, Christian Twigg-Flesner, and Jonathan Moss. 

It is composed of five parts and each part includes two to five chapters. The approach consists of innovatively presenting the law of remedies as an emerging research area. To make the task manageable, the book devotes the analysis to three approaches: the Common Law approach, the Civil law approach, and common principles relating to remedies in EU private law.

To reveal the importance of the ever-growing area of online enforcement, the book also devotes attention to the CJEU’s recent extension of the concept of communication to the public, the notice-and-take-down procedure in intermediary liability cases, and remedies for non-conformity of digital content or consumers’ remedies in European contract law. Another interesting aspect relates to German patent law, grace periods and shareholders’ rights in German corporate law, which are all analysed from a ‘remedial’ perspective as well.

Before proceedings to making a synopsis of its contents for the benefit of IPKat readers, this GuestKat has the following to say: if you are looking for something that is comprehensive, up-to-date, learned and yet also practical, this book is what you are looking for. The various contributors manage to paint a comprehensive picture of a fundamental, yet often confusing, area of the law. It is to be wished that an increasing attention being paid to remedies (also from a theoretical standpoint) would help make this area of the law also of easier comprehension and application by practitioners and courts alike.

All this said, here’s what you can find in the book:

Part I

Chapter one introduces the ‘Law of Remedies’. The relevant terms are presented and defined (What is a remedy? A court order? A claim? Or rather a right?). Important to note is that this book is not about substantive law in its traditional, narrow sense of rights and duties people might have, but rather about the enforcement of those rights and duties.

Chapter two considers what it means for something to be a ‘stand-alone’ subject or research area. It then briefly addresses the vexed question of how the term ‘remedy’ should be understood, this being a cause of substantial disagreement amongst scholars. The dangers of isolating remedies is also outlined, before an analysis is undertaken of the pragmatic approach that the common law has to remedies. It is suggested that, regardless of whether remedies are viewed as a ‘stand-alone’ research area, there is still much to be gained from courses and books on remedies.

Chapter three discusses remedies in private law from a German perspective.

Chapter four relates to rights and remedies in public law. There are two main remedies available ‘for holding public bodies to account’: annulment and compensation. The notion in this chapter is that the former standpoint is flawed and, instead, basic legal positions are arising from public law norms. The chapter shows how these positions are linked to particular claims.

Chapter five sets out a brief introduction to some core concepts of economics of remedies, which are subsequently applied to some of the remedial issues in corporate law.

Part II

Chapter six sheds light on the ‘private vs public enforcement’ debate. Using the internal market lens, it illustrates that the (relative) effectiveness of private and public instruments of enforcement can be significant, not only from a policy point of view, but also from a legal standpoint. By taking a functional perspective, this chapter also provides an overview of some essential considerations in the ‘private vs public enforcement’ debate.

Chapter seven presents thoughts on criminal enforcement. In particular, the chapter concentrates on the national perspective, focusing on the question of how far criminal provisions are enforced in the German legal system and what role criminal procedural law and private persons play in this context.

Part III

Chapter eight focuses on the fundamental distinction between disgorgement remedies that follow a distributive approach and contrasts them with remedies that pursue punishment or a deterring purpose. It seeks to provide guidance for courts and legislators tasked with fashioning disgorging remedies, specifically when distinguishing between good faith/negligent behaviour and intentional/grossly negligent behaviour.

Chapter nine addresses prevention in tort law. It is aimed at proving that prevention has specific features and can thus have a different aim and content from the prevention as traditionally understood within tort law.

Part IV

Chapter ten answers the question whether there is something such as an EU law of damages, or whether there are several EU laws of damages, possibly as diverse and numerous as are the areas of substantive EU law. In order to approach this question, this chapter briefly describes the status quo on EU rules on damages and introduces some selected developments in this field. It also questions whether there is and/or there should be certain common principles of damages in EU private law.

Chapter eleven raises the question whether the debate on the initial allocation of entitlements, through the exclusive intellectual property rights, is just, fair and efficient. There has been an excessive emphasis on exceptions and limitations to the rights as a vehicle for promoting fairness. Since the rights and exceptions are subject to the strict regime of international intellectual property law, the current regime has reached a dead end. This chapter therefore provides a manifesto that indicates another path for easing the crisis: remedies.

Chapter twelve shows that remedies are a very important instrument when trying to adjust the policy layers to particular industries and their social problems. It also gives a glimpse into the process of Europeanisation of remedies and how such a process can embrace, but also confuse national traditions.

Part V

Chapter thirteen brings to attention the evolution of remedies in European contract law, in particular, consumer contract law. The discussion seeks to reveal how the EU has gradually developed its approach towards remedies in this sphere.

The final chapter is a written report of a presentation given in October 2018 at the University of Erlangen conference on ‘Themes and Controversies in EU IP remedies’.

ISBN 9781780687858 
Price EUR 89

ISBN 9781780689449 
Price EUR 89

Book Review: Law of Remedies – A European Perspective Book Review: Law of Remedies – A European Perspective Reviewed by Nedim Malovic on Sunday, January 12, 2020 Rating: 5

1 comment:

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