www.tourismlaw.pt On Tourism Law Quest for general principles Vincenzo Franceschelli University of Milano-Bicocca International Journal of Tourism, Travel and Hospitality Law PRE-PRINT
On Tourism Law Quest for general principles Vincenzo Franceschelli Are there general principles in (and on) Tourism Law? In a previous (short) article, I tried to define Tourism Law ( ). 1 In this (short) contribution, I am starting a Quest for general principles. This short paper is structured in some (personal) statements; statements that determine some open questions connected with our Quest. Questions that may arouse curiosity and the search for answers among scholars that are interested in Tourist and Tourism Law. * * * 1 First of all, in our Quest, we have to fix a temporary limit or frame. In my opinion, we can't talk about Tourism Law until after the rise of "mass tourism " after the Second World War. It is in this season that, what will become Tourism Law, starts collecting the faint traces of the past, recreates them and develops them. Therefore, the search for general principles should be limited to the evolution of Tourism and Tourism Law in the last decades, up to the XX century. It is useless to search general principle in previous Era, if not for the search of historical roots. (And it is banal - or if you prefer, undisputed - to state that Tourism and Tourism Law are connected). 2 Second, we have to distinguish travel from tourism. It is obvious that all tourist are travelers, but not all the travelers are tourist. I know that this distinction is not followed by our American and Canadian friends. Probably because American are nomadic people (Canadian a little less), as, at the contrary, we European are settled people that travel only if they have to, or because it please us to do so. On Tourism Law. in AA.VV., Derecho del Turismo en las Américas, Coord. Carlos Torres. Ed. 1 ESHTE, Estoril (Portugal), 2021, pag. 67.
3 Third. If we do not distinguish tourist from travelers, Tourism Law will be absorbed by Transport Law (that has a most ancient tradition). In other word, Tourism Law will be considered a (minor) branch of Transport Law, and Transport Law is mainly based on public Law. And this bring us to point 5. 4 Fourth (as a subsection of point 2 and 3) there is “something” that distinguish a traveler from a tourist. This “something” is the core of our Quest. This (fundamental) distinction, as a matter of fact, determines a different interpretation of the principles of interpretation of Contract Law and of Tort Law as applied to Tourists (and Tourism Law). 5 Fifth, I am persuaded (and I may be wrong) that Tourism Law is inevitably a multidisciplinary discipline. This means that the (as per now “mythical”) general principles are influenced by Private, Public and Administrative Law. And I am also convinced that Private Law (Civil Law, as we say in the Continent and in Latin America) has developed an increasing relevance in Tourism Law. 6 Sixth, I strongly believe that Tourism Law, in its national approach, has been connected, and it is connected, with the principle of territoriality (that is typical of legal regulation). But I am also convinced that Tourism Law, as Tourism, has an international vocation. This means that Tourism Law is influenced by International Conventions, by the UNWTO soft law and, as far as we European are concerned, by European Union Law. 7 Seventh, Tourists are consumer. This means that Tourism Law is influenced by, and influences, Consumer Law. But… Consumer Law and Tourist Consumer Law (we may call it with this new name) have extensive overlapping area, but they do not coincide. This difference will be one object of our Quest. 8 Eighth. There is no Tourism without a prosperous Tourism Industry. This create a difficult connection (“marriage”, we could say) between the protection of the tourist and the (economic) interest of various worlds that gravitates in the (unclear, evanescent and constantly evolving) definition of Tourism Industry. This means that one of our future tasks will include the search for a clear definition of Tourism Industry. 9 Ninth. The fact that Tourism and Tourism Industry being indissolubly connected (we had proof of this after the pandemic), determines as a necessary consequence that Tourism Law must be interpreted according the principle of Sustainability. This is something new, because tourism
was regarded traditionally as a green industry (and this is no more true today). But here again, in my opinion, Sustainability and Sustainable Tourism do not overlap. We refer to Sustainable Tourism for Development. Development is the key. 10 Tenth. The importance of Tourism Industry in Tourism (and therefore in Tourism Law) determines an indissoluble bond with Public and Administrative Law. And this bring us back to point 3 and 4. 11 Eleventh. Going specific, and as an example: May we refer to a Tourism Contract Law? (Contract Law is the heart of human relation, and of Civil Law). In Europe, as a result of the Package Travel Directive we may give a positive answer. Yes, I believe there is a European Tourism Contract Law. But the positive answer opens the topic of the causa (consideration, for our Common Law friends). In my personal opinion, we can refer to a causa turismi. Causa turismi (a neologism that I invented some time ago) distinguish tourism contract from travel contract. And this bring us back to question 2. 12 Twelfth. Finally, it is my opinion that, in its recent evolution, Tourism Law has shown its expansive force. Principles elaborated in relation with tourist legal relationships are expanding in in other sector of the Law and in legal regulation. And this (the expansive force of Tourism Law) is another sign (or indication, if you prefer) that our Quest is worthy. * * * This (enjoyable) exercise brings to my memory other illustrious precedents. It has been a time, in the History of Law, when other branches of the Law interrogated themselves on their identity, their autonomy and on their general principles. At the beginning of time, Ius (Ars boni et aequi) was conferred taking into account only one large partition: in utroque iure. Over the centuries, various branches of law have sought and found their individuality. From Commercial Law to, most recently, to Comparative Law. If you search in dusty Law Review of the past, you will find a large number of articles that contained cultured disquisition on the autonomy of Commercial Law or on the methods and goals of Comparative Law. Today you will find none.
This means that we are in the middle of a ford. We have overcome the controversial rise of Tourism Law. The “existence” of Tourism Law is nowadays universally accepted. We are now studying, reviewing and questioning its borders and its functions. When this will be done, and our Quest terminated, we will proceed, on safe ground, to new goals.
Contact Estoril Higher Institute for Tourism and Hotel Studies email@example.com www.tourismlaw.pt IJTTHL Celebrating five years of the first publication Vincenzo Franceschelli, On Tourism Law | Quest for general principles, https://files.tourismlaw.pt/On-Tourism-Law-Quest-for-generalprinciples/ Alejandro Corral Sastre, A new Administrative Law for a new Tourism: now or never, https://files.tourismlaw.pt/A-new-AdministrativeLaw-for-a-new-Tourism-by-Alejandro-Corral-Sastre-/ Jonas Thyberg, The Package Travel Act and the Covid19 pandemic, https://files.tourismlaw.pt/The-Package-Travel-Act-and-the-Covid19pandemic-by-Jonas-Thyberg/ Caterina del Federico, The use of artificial intelligence in the travel and hospitality industry. Civil liability profiles, https://files.tourismlaw.pt/The-use-of-artificial-intelligence-in-the-travel-and-hospitalityindustry.--Civil-liability-profiles "We are celebrating the 500 anniversary of the discovery of the Magellan strait with two online publications. On October 21, the launch of Derecho del Turismo en Las Américas brought together colleagues from all Latin American countries. On the same day, the Collective Commentary about the New Package Travel Directive, with colleagues from the then 28 Member States. More recently, Competition Law in Tourism and Tourism Law in Europe are publications demonstrating this group's dynamism. The pandemic has not broken the bonds that have united and unite us. Here we are again here in Lisbon, more numerous and more motivated than ever, to consecrate what will be the voice of our group: The new international journal of Tourism Law, The International Journal of Tourism, Travel and Hospitality Law.” • Vincenzo Franceschelli, The Lisbon Group and International Tourism Law Five years after the first international publication (The New Package Travel Directive, October 2017) at the ESHTE | INATEL International Conference in October 2022, bringing together 50 speakers from 27 countries, a new project was announced: The International Journal of Tourism, Travel and Hospitality Law (IJTTHL). IJTTHL brings together several universities and is published both in print and online. The central part will be in English but will have an IberoAmerican chapter, and the texts are immediately available through Pre-Print. Monika Jurkova, Liability of online platforms in the tourism sector, https:// files.tourismlaw.pt/Liability-of-online-platforms-in-tourism-sector-Monika-Jurkova/ Francesco Torchia, Tourism enterprise and cultural heritage protection, as a legal instrument for valorization of the territory and of the person, https:// files.tourismlaw.pt/Tourism-Enterprise-and-Cultural-Heritage-protection,-as-a-legal-for-valorization-of-the-Territory-and-ofthe-Person-by-Francesco-Torchia/ Valérie Augros, Holiday lettings in France: tips and tricks, https://files.tourismlaw.pt/ Holidays-lettings-in-France---Tips-and-tricks-by-V.-Augros/ Sarah Prager, Competition law: online travel agents and airlines, https:// files.tourismlaw.pt/Sarah-Prager,--Competition-Law---OTAs-and-airlines/ Andrej Micovic, Legal Tech and Online Dispute Resolution, https://files.tourismlaw.pt/ Microsoft-Word---A.-Micovic---Legal-Tech-and-ODR-in-Tourism./ Pilar Juana Garcia Saura, The inspection of tourist accommodation by Public Administrations: problems with the use of the robot inspector (web spider) and the responsibility of collaborative platforms, https://files.tourismlaw.pt/Collaborativeplatforms-in-accommodation-by-Pilar-Saura/ Michael Wukoschitz, A Wicked Deed’s Curse – Will X v Kuoni change the Organiser’s Liability?, https://files.tourismlaw.pt/Will-X-v-Kuoni-change-the-organisers-liability,---M.-Wukoschitz/ Bertold Bär-Bouyssiere, Sustainability and Article 101(1) TFEU, Exploring (almost) virgin territory, https://files.tourismlaw.pt/Sustainability-considerations-and-Article-101-TFEU/ Tatjana Josipović, Modernisation of information requirements for consumers on online tourism services market, https://files.tourismlaw.pt/Modernisation-of--informationrequirements-for-consumers-on-online-tourism-services-market-by-Tatjana-Josipovic/ Matija Damjan, The new online platform rules and the accommodation booking services, https://files.tourismlaw.pt/The-new-online-platform-rules-and-the-accommodation-bookingservices-by-Matija-Damjan/ Ilie Dumitru, EU legislation and contractual relationship between the travel package organizer and the air carrier in case of charter flights. Liability for cancelled and delayed charter flights, https://files.tourismlaw.pt/EU-legislation-and-contractualrelationship-between-the-travel-package-organizer-and-the-air-carrier-in-case-of-charter-flights.-Liability-for-cancelled-anddelayed-charter-flights-by-Ilie-Dumitru-IJTTHL-PRE-PRINT/ João Almeida Vidal, Arbitration and tourism: a field to explore, https:// files.tourismlaw.pt/Arbitration-and-tourism--a-field-to-explore-by-Joao-Vidal/tourismlaw.pt