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Stalla-Bourdillon, Sophie --- "Re-allocating Horizontal and Vertical Regulatory Powers in the Electronic Marketplace: What to do with Private International Law" [2009] ELECD 322; in Cafaggi, Fabrizio; Muir Watt, Horatia (eds), "The Regulatory Function of European Private Law" (Edward Elgar Publishing, 2009)

Book Title: The Regulatory Function of European Private Law

Editor(s): Cafaggi, Fabrizio; Muir Watt, Horatia

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847201997

Section: Chapter 12

Section Title: Re-allocating Horizontal and Vertical Regulatory Powers in the Electronic Marketplace: What to do with Private International Law

Author(s): Stalla-Bourdillon, Sophie

Number of pages: 53

Extract:

12. Re-allocating horizontal and vertical
regulatory powers in the electronic
marketplace: what to do with private
international law
Sophie Stalla-Bourdillon

INTRODUCTION
The Directive 2000/31/EC on e-commerce (ECD) is certainly the `key instru-
ment which ...define[s] European e-regulatory policy and harmonise[s] signif-
icant legal domains which represented major obstacles to the development of
the electronic Single Market'.1 Before going any further, it is important to
pause for a moment and reflect on the precise characteristics of the ECD as a
typical instrument of `régulation'. Indeed, under the influence of English and
American Law, legal French has been enriched with the word `régulation' to
be distinguished from `règlementation'. This is more than a mere updating of
the vocabulary. It is important to point out that the former embodies something
different from the latter: it is `a work, consisting in introducing regularities
into a social object, ensuring its stability, its durability, without setting neither
all the elements nor the whole sequence, thus without excluding changes'.2
This mutation of the law-making philosophy entails significant consequences:
it affects the way statutes are conceived and, as a consequence, drafted. As a
result, statutory law no longer sets up a permanent trade-off between different
interests with which private actors must comply, but seeks to adapt itself to the
diversity of facts, finding its legitimacy in practical achievements more than
in ethereal values. In other words, it relies on heterogeneous normative powers


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