The Obligations IX Conference is over

The Obligations IX Conference is over. Both junior and senior scholars presented more than 60 high-quality papers. For those who could not attend, here are some brief takeaways, mainly from the contract panels:

1)     The form/substance dichotomy dies hard. This is because it is multi-faceted: it can take a dozen meanings (I advocated focusing directly on the contextual factors which determine formal-substantive legal outcomes).

2)     Many doubt that the Atiyah and Summers’ representation of English and US law was faithful when their book was published. All believe it is not any longer true.

3)     The divergence between US law and other common law countries is widening, partly because of the increasing relevance of US federal law. This aspect will likely be at the centre of debates in the Obligations X conference, to be held at Harvard Law School in 2020.

4)     Common law reasoning and statutory interpretation are not like oil and water anymore, but they live side by side in a complex relationship. Attempts at unifying legal reasoning invariably meet strong criticism.

5)     Privity rules are still unsettled in English law.

6)     Rules on contract penalties attract a lot of attention, partly because of recent judicial developments. But also because they put into questions fundamental contract principles.

7)     At common law, good faith may still be perceived as external to the contract and imposed on the parties.

8)     The proportionality principle is gaining ground in English private law.

9)     Misrepresentation still one of the most confusing areas of contract law.

10)  The UK Supreme Court does use empirical evidence in tort cases, but how it uses it and what its sources are needs further exploration.

11)  It has been suggested that comparing across common law jurisdictions is different from comparing outside the common law world.