On the Bottleneck Problem of Private Law in the Risk Society

: Comments on Prof. Asano’s Discussion Report.

Abstract

This paper is a short commentary on the discussion by Yuki Asano at JALP Annual Conference in 2009. Asano’s report focused on the responsibility of decision-makers in the private law area, especially regarding standard trade form contracts in the international swap trade, guardianship of adults and current trends in tort law. Regarding the issue of the standard trade form contract. Asano criticized the dominance of the form-makers on international swap trades. Regarding the issue of the guardianship of adults, she argued that the guardian and others may exploit the ward’s self-decision-making. I agree that there is potential for form-makers in the international swap trade to have dominant positions over other traders, and guardians and others to have dominant positions over wards. In my view, however, their dominant position does not necessarily mean that they can abuse the power that they hold. Sometimes the result of the decision-making is more than their control. In a risk society, parties are not able to take decisions with impunity, and it is needed to reduce the burden of responsibility by regulations. Regarding tort law. Asano argued that there is a trend of restricting free decision-making in relation to perceived risky activities, which is likely to cause the destruction of our living conditions. She also argued, however, that this trend was positive from the point of view of the development of the personal right (Persdnlichkeitsrecht). Asano acknowledged that this trend may bring about a closed society which doesn’t permit any innovative activities. To this summary of the debate. I would also add that the restriction of free decision-making will also potentially lead to the reduction of the burden of responsibility placed on decision-makers in the context of a risk society.