ERC Starting Grant 'Coherence in Law Through LEGAL SCHOLARSHIP' (CLLS)

Coherence of law is created in the writings of legal scholars who systematize rules and principles of law. Their search for coherence is vital for the effectiveness of legal systems. However, coherence of law has virtually not been analyzed systematic-empirically. The projects developed a methodology for addressing coherence across forms (‘sources’) of law (legislation, legal scholarship, case law, customs), across themes (e.g., criminal law and contracts) and across authors, and which will encompass over-time developments in interaction with societal demand and contextual factors. The concept of coherence was disentangled into measurable modes of interconnectedness, which were balanced so as to assess (in)coherence at the level of the legal system. This method was applied to academic writings on law of the early modern period (c1500-c1800) that concern the theme of collateral rights. These are rights facilitating expropriation of the assets of debtors in case of their default. Indications are that the impact of rules on collateral rights hinged on coherence as established in legal writings and that in the mentioned period legal coherence for this theme was mounting because of contacts with economic agents (merchants). 

The project's team includes: Maurits den Hollander, Remko Mooi, Marta Lupi and Ilya Kotlyar.

The project results include three PhD dissertations and 21 papers. A monograph, Securing Debt with Law. Collateral Rights in Holland (17th Century), is expected for the end of 2021. The project's website is: www.clls.eu

The project started on 1 Jan. 2017 and ends on 31 Dec. 2021.

Litigation strategies and the law of commerce in later medieval Bruges (FWO)

Fifteenth-century Bruges is a case in point to study a medieval law of commerce. Already in the later thirteenth century, Bruges had become the main commercial hub between the Mediterranean and the North Sea and attracted more foreign merchants than any other European town. Both princely and city governments tried to offer foreign merchants market peace, physical protection and legal security through legislation and granted collective privileges to foreign ‘nations’ (including a degree of ‘consular justice’ to some degree autonomously organized among the merchants in their 'nation'). But the question remains which legal and institutional level guaranteed the lowest transaction costs and thus best promoted commercial growth. Therefore we must: 1° study the law of commerce before on the one hand the urban courts of Bruges and on the other hand the central courts of Flanders and the Burgundian state; 2° study the policies of the urban and princely governments in creating a secure climate for commerce; 3. study the legal strategies deployed by the international merchants in Bruges and the institutions and mechanisms at their disposal to defend their interests. Our hypothesis is that litigants in fact ‘forum shopped’ at different levels of law in order to obtain the most favourable results, to avoid the possibility of appeal, or because rules of evidence were different.

Catering pre-insolvency restructurings for the needs of SMEs: Belgium (1850-1910)(FWO)

Insolvency law and practice have not often been studied for its responsiveness towards differences in the corporate finance structure of firms. As a result, SMEs have not often been the focus of insolvency legislation. It remains to a large extent open for research as to what extent pre-insolvency proceedings, which are aimed at corporate rescue, should address the specific characteristics of SMEs. In this regard, the Belgian situation between 1850 and 1910 is most important. In 1851 and 1883, pre-insolvency proceedings were introduced that were aimed at continuity of business instead of liquidation. This proposal hypothesizes that this shift was due to a rise in numbers of SMEs, and to their features of financing (debt over equity, few financiers, closely held management). These properties made the existing insolvency proceedings (judicial and extrajudicial) unfit. It will be found out to what extent forensic practice, as well as commercial practice were addressing the specific problems of SMEs in financial distress. The proposed project will have a profound impact on debates regarding corporate insolvency, which often take generalizing stances. Differentiation according to the size of business ventures, and their respective qualities, is assumed to be as relevant today as it was in the past.

Competing Corporations, Brokering Rules: Marine Insurance in France and Belgium (1815-1860) (FWO)

The project aims at assessing competing marine insurance corporations in regard of the crafting and formulation of standardized terms of contract. It focuses on Belgium and France in the nineteenth century until around 1860. The novelty of the project lies in its actor-orientated approach and in its empirical focus on competition as underpinning legal convergence. For the nineteenth century, legal history of commerce in the mentioned states is sketchy and still largely orientated towards government action and legal professionals. Companies are usually not considered for their contributions in the legal domain. However, marine insurance corporations, which were competing with each another and which drew up standard contracts for their clients, also jointly drew up forms containing standard terms that were applied by all companies within one city or port. This happened without the intervention of governments and regulatory agencies, and without the authority of associations of professionals imposing standards. The proposed research will test how and why actions of competing corporations could be sufficient for establishing convergence in standard terms.

Cataloguing Customs of Trade: Looking Behind the Labels (Amsterdam and Lyon, 1700-1730) (FWO)

The project aims at solving an old question: what were the informal rules of trade? Scholarship on the history of commercial law and trade customs has been disappointing in this regard, in that inductive approaches have not often been pursued and because assumptions and conclusions are commonly blended together. How to move beyond the current state of things? Citations of mercantile normative practices in court-related documents (pareres, attestations of customs, and pleadings) are the most fruitful for getting to know what merchants considered as binding themselves. This approach has proven successful with regard to sixteenth-century Antwerp. The mentioned documents phrase the views of merchants, and the procedural context in which they were created, guarantees objectivity as to their reflecting of merchant-made rules. Court-related documents will be analysed that were produced before tribunals of two cities of commerce: Amsterdam and Lyon, and this for the period of the first three decades of the eighteenth century. The novelty of the project lies in considering them in their own right, against the background of several variables, and in comparing the references to customs for different cities of commerce.