Author Archives: Veronika Gaertner

Journal of Private International Law 10th Anniversary Conference at the University of Cambridge, 3-5 September 2015 – Call for Papers

Building on the very successful conferences held in Aberdeen (2005), Birmingham (2007), New York (2009), Milan (2011) and Madrid (2013), we are pleased to announce that the Journal of Private International Law will be holding its 10th anniversary conference at the University of Cambridge on 3-5 September 2015. We now invite abstracts for the conference. Please submit an abstract if you would like to make a presentation at the conference and you are willing to produce a final paper that you will submit for publication in the Journal. Abstracts should be up to 500 words in length and should clearly state the name(s) and affiliation(s) of the author(s). They can be on any subject matter that falls within the scope of the Journal – see http://www.hartjournals.co.uk/jprivintl/index.html – and can be offered by people at any stage of their career, including postgraduate students.   Presentation at the conference will depend on whether your abstract is selected by the Editors of the Journal (Professors Jonathan Harris of King’s College, London and Paul Beaumont of the University of Aberdeen) and by the conference organisers in the University of Cambridge (Professor Richard Fentiman, Dr Louise Merrett and Dr Pippa Rogerson). The subsequent article should be submitted to the Journal. Publication in the Journal will be subject to the usual system of refereeing by two experts in the field.

There will be a mixture of plenary (Friday) and parallel panel sessions (Thursday afternoon and Saturday morning). Please indicate on the abstract whether you are willing to present in either or are only willing to do so in one or the other. A willingness to be flexible maximises our ability to select your paper.

The Conference will be held in the Faculty of Law, University of Cambridge. See http://www.law.cam.ac.uk/about-the-faculty/how-to-find-us.php for further information.

Speakers will not be expected to pay a conference fee but will be expected to pay their expenses to get to Cambridge. Conference accommodation is available in Gonville & Caius College at the speaker’s own expense (see http://www.cai.cam.ac.uk/). Details about accommodation and the conference dinner on the Thursday evening will follow but bed and breakfast in a single room in the College will be about £70 per night.

Please send your abstract to the following email address by Friday 20 February 2015: (PILconf15@law.cam.ac.uk)

Latest Issue of “Praxis des Internationalen Privat- und Verfahrensrechts” (6/2014)

The latest issue (November/December) of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) contains the following articles:

  • Rolf Wagner: “The new programme in the judicial cooperation in civil matters – a turning point?”

Since the entry into force of the Amsterdam Treaty in 1999 the European Union is empowered to act in the area of cooperation in civil and commercial matters. This article describes the fourth programme in this area. It covers the period 2015–2019. The author provides an overview of the history and content of the new programme in so far as the area of civil and commercial law is concerned. Furthermore, he explains how this programme differs in conceptual terms from its predecessors.

  •  Michael Stürner/Christoph Wendelstein: “The law governing arbitral agreements in contractual disputes”

The article deals with the law governing arbitral agreements in contractual disputes. As such agreements are excluded from the material scope of application of Regulation Rome I, a conflict of laws approach has to be found in national law. Under German law, none of the existing black-letter private international law rules apply. Various connecting factors are conceivable (e.g. law of the seat of the arbitration, law governing the arbitration). Given the close connection between the arbitral agreement and the main contract, the article suggests that the law applicable to the latter will also determine the former. That applies, of course, only if the parties did not (explicitly or implicitly) choose the law applicable to the arbitral agreement.

  •  Katharina Hilbig-Lugani: “Das gemeinschaftliche Testament im deutsch-französischen Rechtsverkehr – Ein Stiefkind der Erbrechtsverordnung” – The English abstract reads as follows:

Mutual wills have troubled German doctrine before a European instrument came along and they continue to do so under the Succession Regulation 650/2012. The Regulation lacks an explicit provision. The focus of the present contribution lies on the discussion whether a mutual will is subject to the conflict of law rule on agreements as to succession (article 25 of Regulation 650/2012) or subject to the general provision on dispositions upon death (article 24 of Regulation 650/2012). The concepts of “mutual will” and “agreement as to succession” on the European level are far from being clear. Though less favorable, the more convincing arguments – including wording, systematics and legislative history – argue in favor of the application of article 24 Regulation 650/2012.

  •  Peter Kindler: “Corporate Group Liability between Contract and Tort under the Brussels I Regulation”

The judgment of the CJEU of 17 October 2013 (C-519/12 – OTP Bank vs. Hochtief) confirms the consolidated case law on art. 5(1)(a) Brussels I Regulation regarding the contractual nature of the matter. The liability has to derive from “obligations freely assumed” by one party towards another. According to the Court there is no such freely assumed obligation when the claim is based on a provision of national law imposing a liability on the controlling shareholder of a corporation for the debts of such corporation in case of its failure to disclose the acquisition of control to the commercial register. Astonishingly, the CJEU goes beyond the question referred for the preliminary ruling by the Hungarian Kúria and also gives its views on art. 5(3) Brussels I Regulation. Under this provision, in matters relating to tort, a person domiciled in a Member State may be sued in the courts of the place where the “harmful event” occurred. In this regard, the judgment is incomplete as far as causation is concerned. It remains unclear which could be the defendant’s conduct that caused the “harmful event”.

  • Christian Koller: “Conflicting Goals in European Insolvency Law: Reorganization vs. Territorial Liquidation”

In the Christianapol-case the ECJ had to resolve the conflict between main insolvency proceedings, aiming at the restructuring of the debtor, and secondary proceedings, which must be winding-up proceedings under the European Insolvency Regulation. The ECJ’s solution is mainly based on the interpretation of the provisions of the Insolvency Regulation dealing with the coordination of proceedings. It does not, however, take sufficient account of the effects of restructuring measures approved by the court in the main insolvency proceedings. This contribution, therefore, discusses the effects the recognition of a restructuring plan approved by the court in the main insolvency proceedings might have on the opening of secondary proceedings.

 

Continue reading

Latest Issue of “Praxis des Internationalen Privat- und Verfahrensrechts” (5/2014)

The latest issue (September/October) of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) contains the following articles:

  • Christian Schall/Johannes Weber: “The precautionary choice of the law applicable to divorce according to Rome III”

The Regulation (EU) No. 1259/2010 (Rome III) has put conflict of law rules in cross-border divorce cases on a new footing. By implementing a wide range of possibilities to designate the applicable law, Rome III establishes party autonomy as a key principle in international divorce law. This article focuses on contractual choices of law prior to divorce proceedings and analyses substantial and formal provisions of choice of law clauses in marriage contracts.

  • Deniz Halil Deren: “The effect of a Swiss insolvency on domestic proceedings”

Foreign insolvency proceedings can force a temporary stay of domestic court proceedings. In respect of insolvency proceedings in Member States of the EU, Article 15 EIR (Insolvency Regulation (EC) 1346/2000) provides for a temporary stay of domestic court proceedings; for insolvency proceedings in non-Member States, the governing provision is § 352 InsO (German Insolvency Act). This article discusses whether the requirements of § 352 InsO are met in the event of a Swiss insolvency (Konkurs) as per Article 197 et seq SchKG (Swiss Insolvency Act). This question is of current importance in light of the recent judgment by the Bundesgerichtshof (German Supreme Court) of December 2011 which rejects the view that domestic court proceedings should be stayed following a Swiss moratorium (Nachlassstundung) under Article 293 et seq SchKG (old version). The article takes into account the new Swiss provisions on moratoria, Article 293 et seq SchKG (new version, in force since 1 January 2014).

  • Robert Arts: “On the applicability of Regulation (EC) No. 1346/2000 – No unwritten requirement for a connection to more than one Member State to constitute international jurisdiction pursuant to Art. 3 (1) InsReg”

After confirming the applicability of the Insolvency Regulation on actions to set transactions aside in its landmark Seagon-decision, the ECJ now answers the remaining question of whether this applicability requires the defendant to be the resident of a Member State. After examining its wording and purpose as well as considering the practical implications, the Court concludes that the application of the Regulation does not necessitate such an unwritten connection to a second Member State.

Beyond the scope of application of Regulation (EC) No. 1346/2000 itself, the decision has bearing on the underlying issue of whether or not the EU law-maker does have the competence to regulate relationships between individual Member States and third states. The Court’s interpretation of Art. 85 TFEU does assume the possibility of such a competence in principle.

Continue reading

Research on Child Abduction

Professor Paul Beaumont of the University of Aberdeen, in collaboration with Dr Lara Walker of the University of Sussex, has received funding from the Nuffield Foundation to carry out empirical research on Child Abduction in the European Union. The project started on 1st April 2014 and lasts for 20 months.
The project concerns the place of adjudication of cases of international child abduction. 
The Hague Convention on Child Abduction makes the presumption that it is generally in the interests of abducted children to be returned to the country of origin for adjudication, so that the courts there can carry out a full assessment of their interests. But under Article 13, the state of refuge can issue a ‘non-return order’ where there are concerns about a return to the stage of origin. The study will focus on the operation of the Brussels IIa regulation, which allows the courts of origin to overturn this non-return order.
The study will involve collation of data from Central Authorities in all the relevant states, to estimate the number and basic characteristics of cases where the courts of origin have overruled a non-return order.  More detailed analysis of case reports will enable the researchers to examine the processes which led the courts of origin to reach this decision.  The study will also consider the relationship between decisions about the place of adjudication and the outcome of the case – in other words, does the decision to return a child to the state of origin also result in custody provision being made?  The findings from this study will inform a forthcoming consultation to review the Brussels IIa regulation and associated practice guidance.  
 
How can you help?
The Centre for Private International Law is interested in receiving information from anyone who has details of judgments in child abduction cases involving both Article 13 of the Hague Child Abduction Convention and Article 11 (8) of the Brussels IIa Regulation to further our research.
Confidentiality will be respected.
Information should be sent to Jayne Holliday at jayne.holliday@abdn.ac.uk
More information on the project can be found here.

Latest Issue of “Praxis des Internationalen Privat- und Verfahrensrechts” (4/2014)

The latest issue (July/August) of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) contains the following articles:

  • Maximilian Hocke: “Characterizing the culpa in contrahendo under Art. 12 Rom II-Regulation” – The English abstract reads as follows:

This article explores the scope of Art. 12 Rome II Regulation. According to Recital (30) Rome II Regulation, personal injuries shall not be covered by Art. 12, but rather disclosure duties as well as negotiation breakdowns. The article argues that the recent construction – Art. 12 addresses specific transactional duties and Art. 4 general duties – is too vague. Instead, a precise characterization of the culpa in contrahendo will be established by referring to comparative law. This characterization focuses on expectation as a condition for respective claims.

  • Sebastian Mock: “Verschuldete und unverschuldete Fristversäumnis im Europäischen Mahnverfahren”
  • Felix Koechel: “Section 23 of the German Code of Civil Procedure: For Domestic Claimants only?” – The English abstract reads as follows:

Seemingly in line with former case law, the Third Civil Panel of the German Federal Court of Justice (BGH) held that Section 23 of the German Code of Civil Procedure (ZPO) – providing for an exorbitant ground of jurisdiction based on the location of property of the defendant – is to be interpreted restrictively. According to case law, this provision requires (beyond its wording) a “sufficient connection of the dispute” with the State of forum. However, the Third Civil Panel virtually turned Section 23 ZPO into a claimant’s forum when it held that the plaintiff’s domicile in Germany already establishes such a connection. What started in 1991 as a quest of the Eleventh Civil Panel of the BGH to diminish the exorbitant character of Section 23 ZPO has thus been exploited to openly privilege domestic claimants. This article gives an overview on the development of the case law, and illustrates the inconsistency of the decision of the Third Civil Panel.

  • Carl Friedrich Nordmeier: “French proceedings for the determination of paternity and German proceedings for a right to a compulsory portion: scission of the estate and coordination of proceedings according to § 148 German Code of Civil Procedure” – The English abstract reads as follows:

Under French and German law, the right to a compulsory portion of the estate depends on the number of descendants the deceased left. The present article analyses a succession with connections to France and Germany, in which the ancestry of one of the persons involved is doubtful. In case of scission of the estate, the calculation of a right to a compulsory portion in one part of the estate has to take into account the designation as an heir in another part of the estate if the rational of this right demands so. From a procedural point of view, the coordination of French proceedings for the determination of paternity and German proceedings for a right to a compulsory portion is discussed. Pursuant to § 148 (1) German Code of Civil Procedure, German proceedings can be stayed as a result of assessing the individual circumstances of the case in the light of the purposes of this provision. Results of foreign procedures for the safeguarding of means of proof can be used in German proceedings according to § 493 (1) German Code of Civil Procedure if the foreign proceedings are substitutable for a German independent procedure of taking evidence.

  • Heinrich Dörner: “The qualification of § 1371 Sect. 1 Civil Code – a missed opportunity” – The English abstract reads as follows:

It is still discussed controversially whether § 1371 Sect. 1 Civil Code can be applied when succession after the deceased spouse is controlled by foreign law. The Federal Court of High Justice did not comment on this question in its judgment of 9th September 2012. This article will summarize current jurisprudence and outline the legal situation after the European Regulation on jurisdiction and applicable law in matters of succession will have come into force.

  •  Marianne Andrae: “Post-marital maintenance concerning a failed marriage between a German and a Swiss spouse” – The English abstract reads as follows:

The key aspect of the decision, which is discussed, lies on the law applicable to maintenance obligations. The issues to be resolved concern, in particular, the delimitation between the Hague Convention on the law applicable to maintenance obligations (HU
1973) and the Hague Protocol of 2007 for the determination of the law applicable to maintenance obligations (HUP) and the requirements for the use of the escape clause for the conjugal maintenance (Art. 5 HUP). Another aspect covers the assignation of the appropriate maintenance in accordance with § 1578 b BGB, if the dependent spouse has moved in consequence of the marriage from abroad to Germany and as consequence of the marriage is not gainfully employed. The last issue concerns the qualification of a contractual provision on the right to a monetary payment, which is drawn from Art. 164 Swiss Civil Code (ZGB).

Continue reading

Latest Issue of “Praxis des Internationalen Privat- und Verfahrensrechts” (3/2014)

Recently, the May/June issue of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was published.

  • Rolf Wagner: “15 years of judicial cooperation in civil matters”

With the Treaty of Amsterdam entering into force on 1 May 1999 the European Union has obtained the legislative competence concerning the judicial cooperation in civil matters. This event’s 15th anniversary gives ample reason to pause for a moment to briefly appreciate the achievements and to look ahead.

  •  Marc-Philippe Weller: “Habitual residence as new connecting factor in International Family Law – Counterbalancing changes in the applicable law by the local and moral data approach”

In International Family Law, the traditional connecting factor of nationality is more and more substituted by habitual residence. E.g., according to Article 8 Rome III-Regulation divorce and legal separation shall be subject to the law of the State where the spouses are habitually resident at the time the court is seized. The connecting factor of habitual residence reflects the greater mobility in the 21st century’s open societies. However, it affects the permanence of the law applicable in family matters and causes a change in the applicable law with every cross border-transfer of the spouses’ habitual residence. This volatility of substantive family law conflicts with the principle of predictability and interferes with the cultural identity of the individual. It therefore requires counterbalance by means of substantial law. One method of counterbalancing changes in the applicable law is the local and moral data-approach, advocated by Albert A. Ehrenzweig and pursued by my great academic mentor Erik Jayme, whom this article is dedicated to. It discusses the local and moral data-approach and shows its limits of application, especially in the area of ordre public.

  •  Alfred Escher/Nina Keller-Kemmerer: “On the way to the American Rule? The unconstitutionality of recent German Federal Court’s (BGH) decisions on limiting foreign correspondence lawyers’ reimbursement claims for litigation costs”

German procedural law is guided by the so called Unterliegenshaftung. According to this principle, which is nearly equal to the English Rule, the unsuccessful party is obliged to pay the costs of the proceedings and the extrajudicial costs necessarily incurred by the applicant in taking the appropriate legal action (lawyers’ fees and expenses). In accordance to this guiding principle of German procedural law, the determination of the amount of fees for foreign correspondence lawyers had been based on the relevant foreign law and was not limited to the amount of German correspondence lawyers. In 2005 however, the German Federal Court (BGH) changed this lawful and prevailing jurisprudence and limited the fees for foreign correspondence lawyers to the regulations of the German Rechtsanwaltsvergütungsgesetz (Act on the Remuneration of Lawyers). This article takes the BGH’s recent decision of 2012 concerning this question of law as a reason to stress especially two important aspects which only received little attention in the discussions in 2005: That the German Federal Court’s decision is not only inconsistent with fundamental principles of German procedural law, but also incompatible with the Constitution.

  • Chris Thomale: “Brussel I and the eastern EU enlargement – defining the scope ratione temporis of Reg (EC) 44/2001″

The European Court of Justice recently held that for the Brussels I-Regulation to be applicable for the purpose of the recognition and enforcement of a judgment, it is necessary that at the time of delivery of that judgment the regulation was in force both in the Member State of origin and in the Member State addressed. This decision raises general questions on the spatial and temporal scope of the Brussels I-Regulation as well as the normative relationship between its Art. 2 et seqq. and Art. 32 et seqq., which are discussed in this article.

  •  Moritz Brinkmann: “International jurisdiction with respect to avoidance claims in the context of insolvency proceedings regarding credit institutions”

At the centre of the case, that is an ancillary proceeding to the insolvency proceedings regarding the Lehman Brothers Bankhaus AG, are intricate issues regarding the international jurisdiction with respect to avoidance claims: The most pertinent is the question whether the doctrine developed in Deko Marty is also applicable in the context of the Directives 2001/24/EC on the reorganisation and winding up of credit institutions and 2001/17/EC on the reorganisation and winding-up of insurance undertakings. If this was answered in the affirmative, one has to ask whether national legislation that implements the directives into the law of a Member State can be interpreted in conformity with the Directive, even though the legislation does not explicitly deal with ancillary proceedings and the autonomous law of that Member State does not follow the approach taken in Deko Marty. In this sense, the case is also about the limits of the duty of the national courts to interpret national legislation in conformity with European law insofar as it implements directives.

  •  Peter Mankowski: “Die internationale Zuständigkeit nach Art. 3 EuUnterhVO und der Regress öffentlicher Einrichtungen”

If public bodies enforce claims for maintenance subrogated by them, jurisdiction is vested in the court of the place where the original creditor is habitually resident, by virtue of Art. 3 (b) Maintenance Regulation. Art. 3 Maintenance Regulation establishes a system of general jurisdiction and does not retain the relation which was previously prevailing between Arts. 2 and 5 (2) Brussels I Regulation. Else an unwilling or defaultive debtor would indirectly benefit from the subrogation and the transfer of the claim to the public body. This would generate quite some unwelcome and counterproductive incentives. Conversely, to vest jurisdiction in the court for the place where the original creditor is habitually resident, proves to be advantageous in many regards.

  •  Christoph Thole: “Member States may take cross-border evidence without recourse to the methods of the Evidence Regulation”

The Council Regulation (EC) No 1206/2001 has no conclusive character. This was recently ruled by the ECJ. The decision confirms the Court’s earlier ruling in Lippens and finally settles a long lasting dispute about the scope of the Regulation. While the ECJ’s arguments, which are primarily based on teleological grounds, are convincing and the ruling to be welcomed, it is questionable though, what effect the decision will have on the factual application of the Regulation. The comment analyses the decision and its consequences.

  • Björn Laukemann: “Public policy control in European insolvency proceedings in the light of fraudulent recourse to the court’s competence and subreption of discharging residual debts: a creditors’ perspective”

Bankruptcy tourism within the European internal market is legion. Especially uninformed and involuntary creditors suffer from cross-border COMIshifts of the insolvent debtor undertaken with fraudulent intention. In this context, it is hardly surprising – as demonstrated by a new decision of the Local court of Göttingen – that the public policy exception comes into play. The article will shed light on the question if the interpretation of Art. 26 of the European Insolvency Regulation has to distinguish between objections concerning the international jurisdiction of the insolvency court (Art. 3 EIR) and alleged violations of the creditors’ right to participate effectively in foreign proceedings. The author will point out that infringements against the latter may, under specific conditions, trigger the application of Art. 26 EIR. In this regard, the adequate balance between the creditors’ need for a prior legal defence, on the one hand, and their obligation to (constantly) inform about the insolvency of their debtor, on the other, is of peculiar importance. The outcome of the current reform of the Insolvency Regulation will show to what extent it will meet the necessity to strengthen the procedural position of foreign creditors – beyond Art. 26 EIR.

Continue reading

Latest Issue of “Praxis des Internationalen Privat- und Verfahrensrechts” (2/2014)

Recently, the March/April issue of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was published.

  • Moritz Renner/Marie Hesselbarth: “Corporate Control Contracts and the Rome I Regulation”

The article deals with the law applicable to control contracts within a group of corporations in the sense of §§ 291 et seq. AktG. Here, the Rome I Regulation calls for a reassessment of current conflict-of-laws approaches. As the article seeks to show, applying the Rome I Regulation to corporate control contracts demands a contractual qualification of the latter. Interpreting the notions “contractual obligations” and “questions governed by the law of companies” according to EU law methods leads to an extensive definition of the former and a narrow scope of application of the latter provision. Two aspects merit special attention. First, a systematic comparison to the Brussels I Regulation has to be drawn. Under Brussels I, the ECJ has extensively interpreted the term “contractual relation”, especially in contrast to company law questions. Secondly, primary EU law, namely the freedom of establishment, demands contractual freedom of choice for corporate control contracts. Domestic law provisions protecting creditors and minority shareholders can be applied as overriding mandatory provisions in the sense of art. 9 Rome I Regulation.

  •  Jürgen Stamm: “A plea for the abandonment of the European account preservation order – Ten good reasons against its adoption”

The cross-border enforcement of claims shall be facilitated by the adoption of a European account preservation order. In view of the heterogeneous enforcement systems of the EU Member States this undertaking resembles the attempt to introduce a European enforcement law through the back door. In addition, the current draft of a Council Regulation considers neither the constitutional principles nor the system of the Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The following article illuminates these aspects and makes suggestions to reduce obstacles to the cross-border enforcement of claims in the existing system of Council Regulation (EC) No 44/2001.

  •  Oliver L. Knöfel: “A new approach to EU Private International Law for seamen’s employment agreements: with special reference to the employer’s engaging place of business”

The article reviews a judgment of the European Court of Justice (Fourth Chamber) of 15 December 2011 (C-384/10), relating to the construction of Article 6(2)(b) of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations. Dealing with labour aboard a sea-going vessel, the ECJ ruled that the concept of “the place of business through which the employee was engaged” must be understood as referring exclusively to the place of business which engaged the employee and not to that with which the employee is connected by her actual employment. Thus, the ECJ approaches a modern classic of European conflicts law in employment matters, but unfortunately takes the wrong side in a long-standing controversy between a “contract test” and a “function test”. The author analyses the relevant issues of cross-border labour in the transportation sector, explores the decision’s background in EU private international law, and discusses its consequences for the coherency and justice of the system of connecting factors in Art. 6 Rome Convention/Art. 8 Rome I Regulation.

  •  Herbert Roth: “Europäischer Rechtskraftbegriff im Zuständigkeitsrecht?”– the English abstract reads as follows:

The European Court of Justice has developed an autonomous conception of substantive res judicata concerning a special question of the international jurisdiction of the courts. The claim dismissing adjudication by first instance courts comprises, inter alia, the prejudicial question of the validity of a choice-of-forum clause, which shall be binding on the Court of recognition in accordance with Art. 33 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The decision must be rejected because the interests of the parties are not taken into account sufficiently.

  •  Nils Lund: “Der Rückgriff auf das nationale Recht zur europäisch-autonomen Auslegung normativer Tatbestandsmerkmale in der EuGVVO”– the English abstract reads as follows:

The ECJ’s decision discussed in this article concerns two provisions of the Brussels I Regulation. In the first part of its ruling the ECJ has held that the concept of “civil and commercial matters” of Art. 1(1) includes an action for recovery of an amount unduly paid by a public body in compensation of an act of persecution carried out by a totalitarian regime. The second part of the decision, that is concerning Art. 6(1), clarifies that a “close connection” between the claims exists if the defendant’s pleas have to be determined on a uniform basis and that the provision does not apply to defendants domiciled outside of the EU. Regarding the approach of the court to the interpretation of the terms “civil and commercial matters” and “close connection”, this article concludes that the autonomous construction of the Regulation does in certain cases allow for the recourse on national law.

Continue reading

Latest Issue of “Praxis des Internationalen Privat- und Verfahrensrechts” (1/2014)

Recently, the January/February issue of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was published.

  •  Heinz-Peter Mansel/Karsten Thorn/Rolf Wagner: “European conflict of laws 2013: Respite from the status quo”

The article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from November 2012 until November 2013. It summarizes current projects and new instruments that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instru-ments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the ECJ as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

  • Christoph Schoppe: “The intertemporal provisions regarding choice-of-law clauses under Europeanised inheritance law”

This article examines the practical implications of the intertemporal provisions of the new European Regulation No. 650/2012 on succession and wills in private international law. Its emphasis lies on those rules regarding choice-of-law clauses. Although hardly noticed yet, such provisions can have a significant impact on a testator’s estate planning, especially during a transitional period until 15 th August 2015. Thus, firstly, the article analyses risks and opportunities for testators who seek to have the law of their nationality applied. Secondly, it addresses those testators who prefer to apply another law, which will be unavailable to them under the European Regulation after the transitional period has lapsed. As a common ground underlying all practical issues, it is advocated that only a broad interpretation of any intertemporal provision under the Regulation protects the reasonable reliance-interest of testators regarding their estate planning. Thirdly, some practical points are addressed that might prove difficult when the testator did not choose the law applicable to his estate.

  •  Anatol Dutta: “The liability of American credit rating agencies in Europe”

The question whether credit rating agencies are liable for flawed ratings is mainly discussed in substantive law. Yet, from a European perspective, the liability of credit rating agencies also raises issues of private international law as the rating market is dominated by the three American agencies Standard & Poor’s, Moody’s and Fitch Ratings. Hence, it is not necessarily the case that a European liability regime – be it at the Member State level or at the European Union level such as the recently introduced Art. 35a of the European Regulation on Credit Rating Agencies – will adequately encompass the American agencies and their ratings, a question which shall be addressed in the present paper.

  •  Giesela Rühl: “Causal Link between Targeted Activity and Conclusion of the Contract: On the Scope of Application of Art. 15 et seq. Brussels I – Comment on the Judgment of the Court of Justice of the European Union of 17 October 2013 (Lokman Emrek ./. Vlado Sabranovic)”

On 17 October 2013 the Court of Justice of the European Union (CJEU) handed down its long-awaited decision in Lokman Emrek ./. Vlado Sabranovic. The court held that consumers may sue professionals before their home courts according to Art. 15 (1) lit. c), 16 (1) Brussels I even if there is no causal link between the means used to direct the commercial or professional activity to the consumers’ member state and the conclusion of the contract. The case note comments on the judgment and criticizes the CJEU both in view of the reasoning applied and the results reached. It argues that the highest European court disregards the wording of Art. 15 (1) lit. c) Brussels I, the pertaining majority view in the literature as well as the requirement of uniform interpretation of European Union law. More specifically, it argues that the court ignores recital 25 Rome I that makes clear that Art. 6 (1) Rome I – and thus, Art. 15 (1) lit. c) Brussels I – requires a causal connection between targeted activity and conclusion of the contract. The case comment goes on to show that the CJEU also disregards the rationale of Art. 15 (1) lit. c) Brussels I: it allows consumers to sue at home even if they actively – and without motivation by their contracting partner – go abroad to purchase goods and services. The CJEU, thus, pushes the boundaries of consumer protection beyond what the European legislator had in mind – and beyond what is needed.

  • Georgia Koutsoukou: “Einspruch gegen den Europäischen Zahlungsbefehl als rügelose Einlassung?” – the English abstract reads as follows:

In the case Goldbet Sportwetten ./. Massimo Sperindeo, the CJEU had to decide on the applicability of Art. 24 of the Brussels I Regulation to Regulation (EC) No 1896/2006 creating a European order for payment procedure. In its decision, the CJEU ruled that a statement of opposition to a European order for payment does not amount to entering an appearance within the meaning of Article 24 of the Brussels I Regulation. In the Court’s view, this rule applies to both a reasoned and an unreasoned statement of opposition. The Court’s decision adheres to the main principles of the European order for payment procedure. In this paper, the author illustrates and evaluates the legal reasoning of the decision and concludes that the Court should have elaborated the relationship between the European order for payment procedure and the ordinary civil proceeding in a less abstruse manner.

  • Herbert Roth: “Mahnverfahren im System des Art. 34 Nr. 2 EuGVVO” – the English abstract reads as follows:

The judgement of the Oberlandesgericht (Higher Regional Court) Düsseldorf confers the requirements concerning the possibility of the defendent to lodge a legal remedy stated in Art. 34 No 2 of the European Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters to decisions in foreign order for payment procedures. Therefore the defendant’s pure knowledge of the existence of the payment order in not sufficient. Essential is the knowledge of the content of the payment order as being officially served. However some exceptions are necessary, because the payment order gives no reasons and is issued on the base of a prima facie examination of the merits of the claim. The defendant is not obliged to contest the claim, if it is not clearly identified in the payment order. The refusal of enforcement can be avoided by paying attention to the requirements of § 10 para 1 of the German AVAG (Gesetz zur Ausführung zwischenstaatlicher Verträge und zur Durchführung von Verordnungen und Abkommen der Europäischen Gemeinschaft auf dem Gebiet der Anerkennung und Vollstreckung in Zivil- und Handelssachen).

Continue reading

Latest Issue of “Praxis des Internationalen Privat- und Verfahrensrechts” (6/2013)

Recently, the November/December issue of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was published.

  • Bernhard Pfister: “Kollisionsrechtliche Probleme bei der Vermarktung von Persönlichkeitsrechten” – the English abstract reads as follows:

 Internationally famous celebrities often commercialize their personality rights in different countries. The following article tries to solve the problem, what national law is applicable in regard to the protection of these rights; the relevant sources of law for a German court are Arts. 42, 40 and 41 EGBGB. In this context, German courts and literature mostly deal with defamation by the press. In those cases, the personality of the defamed is offended and the law of the state, where the injured person lives (Erfolgsort) or where the newspaper is published (Handlungsort), is applicable. The issue of protection of commercially used property rights, however, is a different matter: The personality of the celebrity is not harmed, but the property right gained by her/his achievement. It is situated in the country, where the she/he is known.

Only the law of the state, where the advertisement was placed, has to be applied. This is the place, where the action occurred (Handlungsort) and where the damage was caused (Erfolgsort). Neither the law of the country, where the advertising documents had been written, nor the law of the country of the habitual residence are applicable.

  •  Kurt Lechner: “The interplay between the law applicable to the succession and national property law (lex rei sitae) in the EU regulation on successions”

The line the European regulation on successions draws between the law applicable to the succession on the one hand, and property law on the other hand, raises specific questions in legal practice. The way a legatum vindicationis is to be treated by German law is a good example. Only a thorough analysis of the provisions in the regulation and their historic evolution in the law-making process can illustrate the functioning of the regulatory system. The stipulations of Article 1 (2) lit. l together with recital 18 of the regulation are the result of a carefully considered compromise between the institutions involved in the legislative process. Besides leaving the national register proceedings as such unaffected, the final wording expressly states that it is the national law that determines “the effects of recording or failing to record such rights in a register”. Moreover, as far as immovable property is concerned, recital 18 confirms the lex rei sitae principle. The European legislator hence gives precedence to the national property law, the accuracy of registers and the protection of bona fide rights over a more comprehensive application of the law applicable to the succession. As a result, and as far as real estate located in Germany is concerned, neither can rights in rem be created nor ownership be transferred without registration in the German land register. Accordingly, the protection of the integrity of the German land register and the protection of bona fide rights require a formal agreement (Auflassung) between the parties involved in the transfer of ownership.

  •  Matthias Weller: “Keine Drittwirkung von Gerichtsstandsvereinbarungen bei Vertragsketten” – the English abstract reads as follows:

 In Refcomp the ECJ rejected any binding effect of a choice of forum clause on following buyers in the distribution chain raising an “action directe” under French law against the first seller. The judgment is unconvincing both in its reasoning and its result. It appears preferable to characterise as contractual the direct claim against the first seller if and to the extent the claim aims at compensating the contractual interests in full performance. The characterisation as delictual results in unforeseeable places of jurisdiction at the domicile of the respective buyer in the distribution chain. If the applicable law grants a direct claim to a third party, thereby transgressing the relativity of the contract, it appears justified to bind the privileged third party to what the contractual parties agreed for each other in respect to claims compensating the contractual interest.

  •  Jan von Hein: “The applicability of Art. 5 No. 3 Brussels I-Regulation to damages caused by multiple tortfeasors”

 In Melzer v. MF Global UK Ltd, the CJEU refused the application of article 5 no. 3 of the Brussels I Regulation in a case in which the plaintiff who claimed to have been harmed by multiple tortfeasors had sued only the alleged accomplice, a London broker, at the place where the main perpetrator, a German company, had committed the relevant acts, i.e. defrauded the claimant. The German courts had so far applied a principle of “reciprocal attribution of the place where the event occurred” amongst multiple tortfeasors in such cases. The CJEU argued, however, that there is no equivalent autonomous concept in the Regulation, that art. 5 no. 3 must be interpreted restrictively and that the plaintiff could instead have sued under art. 5 no. 1 or art. 6 no. 1 of the Regulation. In his critical note, Jan von Hein argues that, given the substantial convergence of Member States’ laws on joint and several liability of multiple tortfeasors, the Court should have contributed to the development of an autonomous rule on attribution. The doctrine of restrictive application of art. 5 no. 3 is not absolute, but must be balanced against the principle of effet utile. The alternatives suggested by the CJEU – generously re-characterizing claims sounding in tort as contractual or suing all alleged tortfeasors at the same time – are, in a large number of cases, either not available or lead to unsatisfactory consequences. Particularly in the given case, a suit against the main perpetrator would not have been admissible because of its insolvency. The note concludes with an outlook on pending cases concerning infringements of intellectual property rights.

  •  Wulf-Henning Roth: “Choice-of-law clauses in consumer contracts – a difficult matter?”

The judgment of the Bundesgerichtshof (BGH) deals with the use of a choice-of-law clause in the standard terms of a consumer contract. Applying German law to the relevant clause the Court holds that a choice-of-law clause may not be misleading and has to stand up to the standard of transparency. The implications of this approach need to be discussed further on. The Court classified the action for injunctive relief brought by a trade organisation as delictual, applying German private international law of torts, thereby disregarding the Rome II-Regulation. Moreover, the Court hold that the question whether the relevant choice-of-law clause stands up to the standard of transparency shall be determined by the applicable law of torts, instead of classifying this issue as a contractual one. It is suggested that this classification should be reconsidered.

Continue reading

Latest Issue of “Praxis des Internationalen Privat- und Verfahrensrechts” (5/2013)

Recently, the September/October  issue of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was published.

  •  Robert Magnus: “Choice of court agreements in succession law”

The EU Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession (Succession Regulation), most recently adopted by the European Parliament and the Council of the European Union introduces the possibility for parties of a probate dispute to conclude a jurisdiction agreement. This article compares the new rules on jurisdiction agreements with the current legal situation in Germany, where such agreements in succession matters have not been much in use. As the Succession Regulation is for several reasons rather unsatisfactory the article further discusses more convincing alternatives (e.g. prorogation by the deceased in testamentary dispositions, arbitration agreements).

  •  Maximilian Eßer: “The adoption of more far-reaching formal requirements by the EU Member States under the Hague Protocol on the Law applicable to Maintenance Obligations”

 Art. 15 of Regulation (EC) No 4/2009 refers to the Hague Protocol of 2007 for the determination of the law applicable to maintenance obligations. The Protocol was ratified by the EU as a “Regional Economic Integration Organisation”. The formal requirements in Art. 7 (2) and Art. 8 (2) of the Protocol have to be considered as minimum standards. In order to protect the weaker party from a hasty and heedless choice of applicable law on maintenance obligations, the choice-of-law agreement should from this perspective be recorded in an authentic instrument. In his essay, Eßer illustrates that neither public international law nor European Union law prevent the EU Member States from adopting more farreaching formal requirements.

  •  Herbert Roth: “Der Einwand der Nichtzustellung des verfahrenseinleitenden Schriftstücks (Art. 34 Nr. 2, 54 EuGVVO) und die Anforderungen an Versäumnisurteile im Lichte des Art. 34 Nr. 1 EuGVVO” – the English abstract reads as follows:

 The European Court of Justice has correctly decided, that the Court of the Member State in which enforcement is sought may lawfully review the effective delivery of the initial trial document even if the exact date of service is specified in the certificate referred in Article 54 of the COUNCIL REGULATION (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters. The Court also held convincingly, that the recognition and therefore enforcement of a default judgement is normally not manifestly contrary to public policy in the sense of Article 34 No 1 of the Council Regulation 44/2001 despite the fact that the default judgement itself does not provide any legal reasoning. Exceptions are necessary if the defendant had no effective remedy against the decision in the Member State of origin.

  •  Jörg Pirrung: “Procedural conditions for compulsory placement of a child at risk of suicide in a secure care institution in another EU Member State”

 Judgment and View in case S.C. clarify important questions of judicial cooperation within the EU in child protection matters. According to the ECJ, a judgment ordering compulsory placement of a 17 year old child in a secure care institution in another Member State according to Article 56 of the Brussels IIa regulation N 2201/2003 must, before its enforcement there against the will of the child, be declared to be enforceable/registered in that State. Appeals brought against such a registration do not have suspensive effect. Further activity of the EU and/or national legislators should ensure, by developing concrete rules, that the decision of the court of the requested State on the application for such a declaration of enforceability shall be made with particular expedition. Though there may be differences of opinion as to certain aspects regarding the answer given by the ECJ in point 3 of the operative part of its decision, – one might have preferred the way via enforcement of a provisional protective measure taken, on the basis of the recognition of the decision of the State of origin, by the State requested, such as the English decision of 24 February 2012 – the outcome of the procedure confirms the general impression that the ECJ has developed an effective way of interpretation and application of the regulation. After the entry into force for 25 EU States of the Hague Convention of 19 October 1996 on the Protection of Children, courts in EU States should, as far as possible, try to apply the EU regulation in conformity with the principles of this international treaty.

  •  Urs Peter Gruber: “Die perpetuatio fori im Spannungsfeld von EuEheVO und den Haager Kinderschutzabkommen” – the English abstract reads as follows:

 In a case on the visiting rights of one parent to see the children in the custody of the other parent, the OLG Stuttgart was confronted with an intricate question of jurisdiction. Right after the commencement of the trial in Germany, the child had moved from Germany to Turkey and had acquired a new habitual residence there. The court had to decide whether this change of habitual residence was of relevance for its jurisdiction.

Pursuant to the Brussels IIa Regulation, which adheres to the principle of “perpetuatio fori”, such a change does not affect jurisdiction of the court seised. However pursuant to the Convention of 5 October 1961 Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants, in such a case, jurisdiction shifts automatically to the state in which the new habitual residence of the child is located.

Therefore, the OLG Stuttgart had to decide whether jurisdiction was governed by the Brussels IIa Regulation or rather by the above mentioned convention on the protection of minors which both Germany and Turkey are parties of. The OLG Stuttgart held that when defining the exact scope of application of the Brussels IIa Regulation, one should consider the rights and obligations of member states arising from agreements with non-member states. Therefore, in the case at hand, the court held that the jurisdictional issue was not governed by the Brussels IIa Regulation; in order to ensure that Germany complied with its contractual duties in relation to Turkey, it applied the convention on the protection of minors. Consequently, it declined jurisdiction in favour of the competent Turkish courts.

  •  Fritz Sturm: “Handschuhehe und Selbstbestimmung” – the English abstract reads as follows:

For centuries, the aristocracy used proxy marriages to anticipate the ceremony before the bride and the groom had met. Today proxy marriages are utilized for immigration purposes.

In many countries, such as Germany, Austria, Switzerland and the UK, this form of marriage is not permitted. Nevertheless, those countries recognize proxy marriages performed in a state where such marriages are permitted, if the representative has been given precise instructions. The US also apply the lex loci celebrationis, whereas French conflict of laws always requires the physical presence of the French spouse (Art. 146-1 C.civ.).

It is interesting to note that in cases where the representative did not receive precise instructions, certain German judges refer to the ordre public. Indeed, the prevailing German doctrine refuses to view the question of the validity of a marriage solemnised by a representative with such unlimited power as a question of form, but sees it as a problem of substantive validity, and infers from the lack of the spouses’ consent that such a marriage is null and void according to Art. 13 EGBGB.

However, as this paper shows, the prevailing doctrine has to be rejected in this respect. It goes astray as it does not reflect the fact that a marriage concluded through a representative authorized to independently choose the bride or groom himself may in fact later be approved by the spouse represented by him. This power of approval has to be qualified as a question of form and is therefore subject to the lex loci celebrationis.

An additional argument against this doctrine is that, if the representative has the aforementioned freedom of choice, Art. 13 EGBGB does not lead to a void marriage, but to a relationship which can only be dissolved by divorce.

Continue reading