The 13th AIIFL Distinguished Public Lecture

Unfair Terms, Suretyships and EU Harmonisation: A Crucible of Europeanised Private Law?

Professor James Devenney
Exeter Law School

Monday, 1 December 2014, 6:30 – 7:30 pm
Room 723, 7/F Cheng Yu Tung Tower
The University of Hong Kong

This paper is located in the context of EU initiatives aimed at creating a single market in financial services and the increasingly acrimonious debate on the future of European Private Law. The aim of the paper is to reflect on wider EU regulation and harmonisation initiatives, using contracts of suretyship/guarantee as a case study. In so doing it will focus on situations where the surety/guarantor acts in a non-professional capacity (e.g. a family member). The paper will highlight the polycontextual nature of suretyship transactions and it will explore the (largely procedural) protection afforded to a non-professional surety in England and Wales. It will note that the treatment of suretyship transactions varies enormously across the EU (the ‘uncommon’ core) and it will explore the desirability of applying the Unfair Terms in Consumer Contracts Directive (93/13/EEC) to such transactions. The paper will argue that, if harmonisation of the law relating to non-professional suretyships is deemed desirable, a dual-track harmonisation strategy – involving measures of legislative and non-legislative harmonisation – recommends itself. It will also suggest that by focusing on ‘problematic’ areas, such as non-professional suretyship agreements, it is possible to further illuminate the wider current debate on the future of aspects of European Private Law and indeed international harmonisation more widely.

Professor James Devenney joined Exeter Law School in October 2011 from Durham University, where he was Deputy Head of Durham Law School and Director of the Durham University Institute of Commercial and Corporate Law. He previously held posts at Cardiff Law School and the Bristol Law School, and in recent years he has spent time at Adelaide Law School and the ESRC Centre for Business Relationships, Accountability, Sustainability and Society at Cardiff University. His work has been cited by the High Court of Singapore (see Chwee Kin Keong v. [2004] SGHC 71), the High Court of England and Wales (see Parabola Investments Ltd v. Browallia Cal Ltd [2009] EWHC 901 (Comm) at [130]) and the English Law Commission (see Law Commission of England and Wales: Ninth Programme of Reform (Law Com No 293), para 4.18). He has provided assistance to the Law Commission on Consumer Law, misrepresentation and unfair commercial practices; and more recently he was invited to discuss the proposal for the codification of Australian Contract Law with the Australian Attorney-General’s Department. Over the years James has taught a wide variety of Commercial, Corporate and Property Law modules; and in 2011 he was delighted to be shortlisted for the prestigious Oxford University Press Law Teacher of the Year award.