Bargaining and Reliance in New European Contract Law

A decade after the House of Lords declared the notion of an agreement to negotiate a contract in good faith to be `wholly unworkable in practice’ the Californian Appeals court affirmed the validity of just such a `contract’, opening up the possibility of significant reliance damages arising out of future failed business ventures. The case of Copeland v Baskin-Robbins, USA has major implications for pre-closing negotiations in the State of California, and the US generally, but what, if anything, does it mean for the European Commission’s ongoing `Common Frame of Reference’ strategy aimed at removing problematic divergences and inconsistencies between European contract laws? Commercial bargaining, incomplete contracts and the spectre of precontractual reliance remain a significant, if largely neglected, challenge for emergent EC contract rules, yet does Copeland provide a lead on how best to police the formation of international commercial agreements or merely represent a further weakening of party autonomy for those seeking to drive the hardest bargain? In this paper the author explores the world of almost contract, the `contract’ to bargain in good faith and looks beyond the current resistance of the English common law to sketch the parameters of a new EC reliance doctrine.