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Archive

Veronika Gaertner

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

  • Bettina Heiderhoff: “Fictitious service of process and free movement of judgments”

When judgments or court orders are to be enforced in other member states, it is an essential prerequisite that the defendant was served with the document which instituted the proceedings in sufficient time (Article 34 Nr. 2 Brussels I Regulation).

When the service was conducted in a fictitious manner, the issue of service “in sufficient time” causes friction. It is acknowledged that the measure for timeliness – or, in such a case, more accurately for rightfulness – is not set by the state of origin, but by the recognising state. However, if the criteria are taken from the autonomous procedural rules of the recognising state, as has occasionally happened, minor differences between national laws can cause unreasonable obstacles to the recognition of titles.

In order to fulfill the aim of the Brussels I Regulation, to improve the free movement of judgments and strengthen mutual trust, the criteria must, therefore, not be taken from the national rules of the recognising state, but ought rather to resemble the standards valid for breaches of public policy. Only such a “mildly Europeanized” standard for fictitious services may avoid a trapping of the claimant who, trusting in the decision of the court of origin, is then surprised by the differing measures of the recognising state.

  •  Haimo Schack: “What remains of the renvoi?”

The renvoi is one of the main principles of classic private international law. The renvoi doctrine aims for the conformity of decisions in different jurisdictions, which may also facilitate the recognition of the decision abroad. With this goal in mind the following article gives an overview of the acceptance of renvoi in different national jurisdictions. In addition, the article evaluates and criticizes the tendency to push back the doctrine of renvoi in international treaties and in EU private international law. Especially in the former domain of renvoi, i.e. the law of personal status, family and inheritance law, the European conflict rules are dominating more and more and preventing the conformity of decisions in relation to third countries. As a means to achieve this decisional harmony the renvoi remains useful, it shows the cosmopolitan attitude of classic private international law.

  •  Hannes Wais: “Hospital contracts and Place of Performance Jurisdiction under § 29 ZPO (German Code of Civil Procedure)”

This article comments on a recent decision of the German Federal Supreme Court, in which the court ruled that, for payment claims from a hospital contract, § 29 ZPO conferred jurisdiction upon the courts in the locality of the hospital. The Court decided that, not only for the purposes of § 29 ZPO, the place of performance of the monetary obligation from a hospital contract is the creditor’s seat and not that of the debtor (in contrast to what is generally accepted for monetary obligations). This article will discuss the implications of this decision, and will consider the possibility of a conceptual “reversal” of § 29 ZPO.

  •  Markus Würdinger: “Der ordre public-Vorbehalt bei Verzugsaufschlägen im niederländischen Arbeitsrecht” – the English abstract reads as follows:

The substantive ordre public rarely plays a role when it comes to recognition and enforcement of foreign legal decisions. This article deals with such a case. It is about the declaration of enforceability of a Dutch court decision in Germany. The judgment in question decided the applicant’s claim for unpaid wages plus a statutory increase of 50% as a penalty for late payment in his favour. The Higher Regional Court of Düsseldorf (OLG) rightly interpreted Art. 34 EuGVVO (Regulation (EC) No 44/2001) narrowly and refused to consider this decision as being comparable to an award of punitive damages.

  •  Urs Peter Gruber: “Die Vollstreckbarkeit ausländischer Unterhaltstitel – altes und neues Recht” – the English abstract reads as follows:

For a maintenance creditor, the swift and efficient recovery of a maintenance obligation is of paramount importance. In the Brussels I Regulation – which until recently was also applicable with regard to maintenance obligations – and in various conventions there are procedures for the declaration of enforceability of decisions. In these procedures, the courts have to ascertain whether there is a maintenance claim covered by the Regulation or the convention and whether there are reasons to refuse recognition of the foreign decision. In the new Regulation (EC) No 4/2009 on maintenance obligations however, a declaration of enforceability of decisions is no longer required, provided that the decision was given in a Member State bound by the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations. In this case, a decision on maintenance obligations given in a Member State is automatically enforceable in another Member State. The article discusses recent court decisions on the declaration of enforceability in maintenance obligations. It then examines the changes brought about by the Regulation (EC) No 4/2009 on maintenance obligations. Weighing the interests of both the creditor and the debtor, it comes to the conclusion that the abolition of the above-mentioned procedures is fully justified.

  •  Wolf-Georg Ringe: “Secondary proceedings, forum shopping and the European Insolvency Regulation”

The German Federal Supreme Court held in a recent decision that secondary proceedings according to Article 3(2) of the European Insolvency Regulation cannot be initiated where the debtor only has assets in a particular country. The requirements for an “establishment” go beyond this and require an economic activity with a “minimum of organisation and certain stability”. This decision stands in conformity with the leading academic comment and other case-law. Nevertheless, the decision is a good opportunity to stress the importance of secondary proceedings and their function to protect local creditors. This is particularly true where the secondary proceedings are initiated (as here) in the context of a cross-border transfer of the “centre of main interests” (COMI) of the debtor. The ongoing review of the European Insolvency Regulation should respond to this problem in one of the regulatory options provided.

  •  Moritz Brinkmann: “Ausländische Insolvenzverfahren und deutscher Grundbuchverkehr” – the English abstract reads as follows:

Art. 16 EIR provides for the automatic recognition of insolvency proceedings which have been commenced in another member state. The recognition of insolvency proceedings pertains not only to the debtor’s power with respect to the estate, but also to his procedural position as well as to questions regarding company law or the law of land registries. The decision rendered by the OLG Düsseldorf (March 2, 2012) illustrates that these consequences are easily ignored in the routine of everyday legal life as long as courts and parties have difficulties in accessing reliable information as to the status of foreign proceedings. The existing deficits in terms of access to information regarding foreign insolvency proceedings may thwart the concept of automatic recognition. Hopefully, the coming reform of the EIR will address this issue (see proposed Art. 22 EIR in COM (2012) 744 final).

  •  Kurt Siehr: “Equal Treatment of Children of Unmarried Parents and the Law of Nationality”

A child of unmarried parents acquires nationality of Malta only if the child is recognized by the Maltese father and legitimized by marriage or court decision. The European Court of Human Rights decided that this provision violates the European Convention of Human Rights, especially Article 8 on the right of family life and Article 14 on non-discrimination. There are doubts whether the decision is correct. A more careful phrasing of Maltese law could avoid the violation of the Convention. Or is the decision of the European Court of Human Rights its step further towards a human right for nationality?

Symposium on EU Regulation on Succession

On Friday, 11 October 2013 a symposium organised by the German Notary Institute on the EU Regulation on Succession and Wills will take place in Würzburg/Germany.

Here is the programme:

09.00 Uhr             Begrüßung, Notar a. D. Sebastian Herrler, Geschäftsführer des Deutschen Notarinstituts

Grußwort, Notar a. D. Prof. Dr. Rainer Kanzleiter, Vorsitzender der NotRV

5th Conference of the Commission on European Family Law

On 29-31 August 2013, the 5th Conference of the Commission on European Family Law will be held in Bonn, Germany, organized by the Institute for German, European and International Family Law, University of Bonn, and the Käte Hamburger Centre for Advanced Study ‘Law as Culture’.

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

  • Christopher Selke: “Die Anknüpfung der rechtsgeschäftlichen Vertragsübernahme” – the English abstract reads as follows:

 More than fifty years after Konrad Zweigert’s essay on the applicable law to the assignment of contracts, some issues are still unsettled. The following article gives an overview of previous comments and focuses on the scope of application. It further emphasizes the crucial question, how to determine the applicable law in the case of a cross-border assignment of a contract. In this connection, the role of the principle of party autonomy shall be challenged more carefully than it has been in the past – which does not inevitably mean that it has to be completely dismissed. There just has to exist a subsidiary objective international private law rule in the case that the parties’ choice of law leads to difficulties. Therefore, this article concludes with a proposal for such a rule.

  •  Wulf-Henning Roth: “Jurisdiction and Applicable Law in Cross-Border Defamation and Breach of Personality Rights”

 The article discusses the judgment of 25 October 2011, C-509/09 and C-161/10, eDate Advertising, in which the European Court of Justice clarifies two important issues of European private international law concerning cross-border injunctions and damages claims with regard to defamation and breach of personality rights on the internet. The first issue concerns the interpretation of Article 5 no. 3 of the Brussels I Regulation 44/2001/EC which establishes a special concurrent jurisdiction of the courts of the Member States in matters of tort liability. According to the Court, an applicant may bring an action before the court where the publisher is domiciled or before the courts of all Member States where the internet information is accessible, however restricted to the infringement of the personality rights in the relevant territory (“mosaic principle”). Alternatively, the applicant may also bring an action for an injunction or for all damages, incurred worldwide, before the court where he or she has his or her centre of interests. As for the applicable law concerning tort liability, the Court clarifies the intensely discussed meaning of Article 3 (1) and (2) of the e-commerce Directive 2000/31/EC. The Court holds that both provisions do not contain conflict of law rules. Rather, Article 3 (1) contains an obligation of the Member State where the internet provider has its seat of business to ensure that the internet provider complies with the national provisions applicable in that Member State. And Article 3 (2) allows that the Member States where the internet information is accessed may apply their own substantive law applicable to the infringement of personality rights, but not in such a way that the interstate provision of internet services is restricted.

  •  Karl-Nikolaus Peifer: “International Jurisdiction and Applicable Law in Trademark Infringment Cases”

 The German Federal Court had to deal with questions of international jurisdiction and applicable law in a trademark infringement case based upon the broadcasting of an Italian game show which was available in Germany. The Court found that German courts had jurisdiction upon the case and might apply national trademark law because trademark interests were affected in Germany. The result is arguable. However, it demonstrates that even codified rules in IP-Law leave substantial insecurities with regard to international harmony as long as IP-laws have territorial reach only.

  •  Oliver L. Knöfel: “The European Evidence Regulation: First Resort or Last?”

 In Continental Europe, treaties and other devices of judicial assistance in the obtaining of evidence abroad have traditionally been understood as tools to prevent intrusions into another State’s authority and territory. Today, there are diverging views as to whether or not the relevant legal instruments designed for civil and commercial matters, such as the Hague Evidence Convention and the European Evidence Regulation (Council Regulation [EC] No 1206/2001), have the quality of being exclusive, that is, the effect of barring any other means of gathering evidence abroad. The article reviews a judgment of the European Court of Justice (First Chamber) of 6 September 2012 (C-170/11), dealing with the mandatory or non-mandatory character of the European Evidence Regulation. The question at stake is whether a judge in a Member State must have recourse to the Regulation on each occasion that she wishes to take evidence that is situated in another Member State. The ECJ declared a Member State’s court free to summon a witness resident in another Member State to appear before it in accordance with the lex fori processus, that is, without recourse to the Evidence Regulation. The author analyses the relevant comity issues, explores the decision’s background in international law and in international procedural law, and discusses its consequences for the relationship to Third States, as well as for the traditional concept of judicial sovereignty.

  •  Gerald Mäsch: “The “Equitable Life” 2002 Scheme of Arrangement in the German Federal Court of Justice”

 The German Federal Court of Justice’s IVth Senate, in its decision of 15 February 2012, took the view that the High Court sanction of the English Insurance Company Equitable Life’s 2002 voluntary solvent scheme of arrangement has no binding effect on a dissenting policy holder residing in Germany on the ground that art. 35 (1) and 12 of the Brussels I Regulation prevent its recognition. In this article, the author argues that, based on the European Court of Justice’s ruling in “Group Josi Reinsurance”, the Brussels I Regulation pro-visions on insurance contracts should instead be interpreted as not applying to collective procedures aiming at the financial redress of an insurance company where the individual policy holder’s inferior knowledge of insurance issues is irrelevant. The same interpretation applies – mutatis mutandis – for the consumer contract provisions (art. 35 (1), 15 Brussels I Regulation), whereas the position of the IVth Senate would make the restructuring of any English company by way of voluntary agreements under English law nearly impossible if a significant number of dissenting private investors from Germany is involved. The author calls upon German courts confronted with the issue of recognition of English solvent scheme of arrangements not to follow the IVth Senate but rather to seek a preliminary ruling by the ECJ.

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

  • Miriam Pohl: The Recast of Brussels I – striking the balance between trust and control

Roughly two years after the presentation of the Commission’s proposal, the recast of the Brussels I Regulation was adopted on 6 December 2012. As from 10 January 2015, the recast will replace Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The following article presents the most important changes.

  •  Michael Coester: The Influence of EU-Law on German Conflict Rules for Registered Partnerships

Since the enactment of the German conflict rules on registered partnerships (Art. 17b EGBGB) in 2001 significant changes have taken place. The European Union is progressively building a system of private international law rules in family matters, and the constitutional as well as the human rights approach towards registered partnerships today focuses more on the protection of same-sex relationships against unjustified discrimination rather than on the protection of marriage. As a result, some elements of Art. 17b EGBGB are already today (or will be in the next future) governed by Community law instead of national law (alimony, inheritance, property issues), and basic principles of common private international law become visible. This article explores in detail (1) the scope of EU-regulations with regard to registered partnerships, (2) the convergence of the remaining text of Art. 17b EGBGB with emerging techniques and principles of Community law and (3) its conformity with overriding principles of constitutional, EU- or human rights law. It is suggested that the existing German rules of private international law on registered partnerships need an overall revision in order to bring it in line with existing constitutional law and emerging European Community law. To this end, the author submits concrete text proposals for all areas of German Private International Law on registered partnerships which are still subject to national law.

  •  Eric Wagner/Marius E. Mann: The Merchant Status of Foreign Parties in Civil Proceedings

According to section 95 Judiciary Act (Gerichtsverfassungsgesetz), the functional jurisdiction of the court seized of the matter depends on the merchant status of the parties to the proceedings. This can lead to difficulties in the case of disputes in international business dealings. For example, if a party established abroad is involved, the question arises as to what country’s laws determine whether this party has merchant status. So far there is no Supreme Court case law on this question. The views taken by the lower courts and in legal literature vary. This article offers a view of the status of the discussion and explains why, when it comes to determining, within the scope of section 95 Judiciary Act, whether merchant status is present – also in the case of foreign parties – only lex fori can be decisive.

  •  Peter-Andreas Brand: Cross-border consumer protection within the EU – Inconsistencies and contradictions in the European System of Conflict of Law Rules and Procedural Law

The endeavours throughout the European Union to create a harmonized European Procedural Law, in particular in the context of jurisdiction and recognition and enforcement, and also the process of harmonisation of the Conflict of Law Rules within the EU have realised the importance of cross-border consumer protection. Both the Rome I Regulation and Regulation No. 44/2001 on Jurisdiction and Recognition and Enforcement of Judgements in Civil and Commercial Matters contain specific provisions for the protection of consumers. It is the aim of this article to consider the practical implications of the most important provisions of the EU-Conflict of Law Rules and the Procedural Rules with respect to the applicable law, jurisdiction and the exequator proceedings. Furthermore, current inconsistencies and sometimes contradicting intentions in European legislation shall be highlighted.

  •  Christian Heinze: Keine Zustellung durch Aufgabe zur Post im Anwendungsbereich der Europäischen Zustellungsverordnung – the English abstract reads as follows:

The rules for judicial service in some EU Member States allow service of documents on parties domiciled abroad by a form of “fictitious” service within the jurisdiction. Under these rules, service is deemed to take effect at the moment when a copy of the document is lodged with a national authority, placed in the court’s case file or at the time when it is sent abroad for service, irrespective of the time when the recipient actually receives the document, if the foreign party has failed to appoint a representative in the forum state who is authorised to accept service. The following case note discusses two judgments of the German Bundesgerichtshof and the Court of Justice of the European Union (Case C-325/11 – Alder) which hold that this practice is, for inner-EU cases, incompatible with the European Service Regulation (EC) No 1393/2007 (ECJ) and German domestic law (Bundesgerichtshof). The Court of Justice has rightly coined an autonomous definition of service of a judicial document between Member States for the purposes of Article 1(1) of the Service Regulation. As a consequence, the Service Regulation provides, with the exceptions of Article 1(2) and Recital 8, for an exhaustive list of the means of transmission of judicial documents. The Service Regulation therefore excludes the application of national rules on fictitious service which would deprive the rules of the Service Regulation, in particular the right of the person to be served to benefit from actual and effective receipt, of all practical effect.

  •   Christoph Thole: Verbrauchergerichtsstand aufgrund schlüssiger Behauptung für eine Kapitalanlegerklage gegen die Hausbank des Anlagefonds? – the English abstract reads as follows:

In its judgment, the German Federal Supreme Court held that in a case brought by a consumer against the house bank of a Ponzi scheme in which the consumer had invested money, the courts in his home country enjoy jurisdiction under Art. 15, 16 Brussels I-Regulation. The Austrian bank was considered to have committed itself to the plaintiff to transfer the money paid in by the consumer into the bank’s own account in Germany to the Austrian bank account of the Ponzi scheme. The defendant was thus held to have entered into a contractual relationship with the consumer. Christoph Thole argues the judgment to be feasible, however, the ruling must not be generalized too easily. Furthermore, he emphasizes that the burden of demonstration with respect to jurisdictional issues has a Community law dimension rather than being solely based on national law.

  •  Stefan Arnold: On the scope of the jurisdiction over consumer contracts and on the nature of the doctrine of culpa in contrahendo and actions based on an infringements of sec. 32 German Banking Act (Kreditwesengesetz)

According to the Federal Court of Justice (Bundesgerichtshof), sec. 13 and 14 Lugano Convention 1988 give German courts jurisdiction in proceedings brought by German consumers concerning investments in Switzerland. Actions based on an infringement of § 32 German Banking Act (Kreditwesengesetz) and on culpa in contrahendo (here: breach of precontractual duties of disclosure) must be considered as “proceedings concerning a contract” in the sense of sec. 13 Lugano Convention 1988. The jurisdiction of German courts does not depend on the consumer’s material vulnerability. It is equally irrelevant whether the consumer took the initiative as regards the investment and whether the “specific invitation” addressed to the consumer did not constitute a legally binding offer but merely an invitatio ad offerendum. Thus, the Bundesgerichtshof implicitly argues for a formal analysis in matters of the jurisdiction over consumer contracts and acknowledges the crucial importance of legal certainty in International Procedural Law. The judgment is also relevant for the interpretation of sec. 15 Brussels I Regulation/Lugano Convention 2007.

  •   Florian Eichel: Judicial power and international jurisdiction for the enforcement of a judgment for a specific act (§§ 887 et seq. German Code of Civil Procedure) in case of a foreign place of performance

The German Federal Court of Justice (Bundesgerichtshof – BGH) held that German courts have international jurisdiction to take measures for enforcing a judgment for a specific act even when the act has to be performed abroad. This essay agrees with the outcome of the decision, discusses questions of state sovereignty and suggests that personal jurisdiction should have been derived from the Brussels I-Regulation (EC) No. 44/2001 as an unwritten annex-competence.

  •  Björn Laukemann: Actions for separate satisfaction and the European jurisdictional regime

In the case ERSTE Bank, the ECJ had to decide on the applicability ratione temporis of Article 5 of the European Insolvency Regulation (EIR) in the context of Hungary’s accession to the European Union. Thereby, the Court left out the contentious issue whether international jurisdiction over actions for the determination of collateral securities on assets belonging to the debtor’s estate is to be determined by the Brussels I regime or rather the EIR. Exemplified by actions for separate satisfaction, this article will focus on the jurisdictional delimitation between both Regulations which is now, concerning insolvency related actions in general, regulated by Article 3a of the EU-Commission’s proposal for a recast of the EIR. The article points out that the criteria underlying the principle of vis attractiva concursus are not suitable for actions for separate satisfaction and unfolds the consequences on the dispute at issue.

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: Progressing process of codification– patchwork of uniform law”

The article gives an overview on the developments in Brussels in the judicial cooperation in civil and commercial matters from November 2011 until November 2012. 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 on a national level in Germany which are a consequence of the new European instruments. Furthermore, the article shows areas of law where the EU has made use of its external competence. The article discusses both important decisions and pending cases before the ECJ touching the subject matter of the article. In addition, the present article turns to the current projects of the Hague Conference as well.

  •  Stefan Leible/Doris Leitner: “Conflict of laws in the European Directive 2008/122/EG”

The following essay is about the conflict of laws in the European Directive 2008/122/EG on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts, being effective since 2/23/2008 and being transformed into German law since 1/17/2011, and its relevance for German law. After giving information about the regulation’s history, scope and content, the authors make a detailed analysis on the directive’s conflict of laws rule art. 12 par. 2 as well as its national transformation rule art. 46b EGBGB and demonstrate the differences to the former legal norms.

  •  Christoph Benicke: “Haager Kinderschutzübereinkommen” – the English abstract reads as follows:

The 1996 Hague Protection of Children Convention provides a modern legal instrument in the field of international child protection and overcomes the shortcomings of the 1961 Hague Protection of Minors Convention. International jurisdiction is primarily assigned to the authorities of the State of habitual residence of the child. In addition, a flexible consideration of the particularities of the case is made possible by the fact that the jurisdiction may be transferred to the authorities of a State with which the child has a close relationship e.g. based on nationality. The principle that the court applies its own law promotes rapid and effective procedures. Since the general jurisdiction lies with the authorities in the State of the habitual residence of the child, the law of the habitual residence of the child will be applied in most proceedings. This is consistent with the choice of law rule in Article 16, which establishes the applicable law outside the realm of protective measures. The Convention also includes a modern system for the recognition and enforcement of decisions from other Contracting States. The international jurisdiction of the authority which issued the decision can still be checked, but the recognizing State is bound in respect to the factual findings in the decision to be recognized. Once recognition and enforceability are certified, the foreign decision will be enforced under the same conditions as a national one. Difficult questions arise about the relationship between the Hague Child Protection Convention and the Brussels II regulation. Among Member States the Brussels II regulation displaces the Protection of Children Convention for the jurisdictional issues in most cases. The same is true for the recognition and enforcement of decisions from other Member States of the Brussels II regulation. On the other hand, the choice of law rules of the Protection of Children Convention apply in all procedures, even when the jurisdiction is based on the Brussels II regulation.

  •  Jan von Hein: “Jurisdiction at the place of performance according to Art. 5 no. 1 Brussels I Regulation in the case of a gratuitous consultancy agreement”

The annotated judgment of the OLG Saarbrücken deals with the question whether a gratuitous consultancy agreement falls within the scope of Art. 5 no. 1 Brussels I Regulation. After establishing that the present decision concerns a contract and not a mere act of courtesy, it is discussed whether Art. 5 no. 1(b) or Art. 5 no. 1(a) Brussels I Regulation is applicable to a gratuitous consultancy agreement. Subsequently, the reasons why the non-remuneration is the decisive factor for ruling out the application of Art. 5 no. 1(b) Brussels I Regulation are elaborated followed by some remarks concerning the determination of the place of performance of the obligation in question under Art. 5 no. 1(a) Brussels I Regulation. The possibility of establishing a concurring competence – a forum attractivitatis – of the court having special jurisdiction in contract for related tort claims e.g. resulting from product liability is analysed. The annotation concludes with final remarks on the revision of the Brussels I Regulation and the proposed changes concerning the jurisdiction at the place of performance.

  •  Markus Würdinger: “Language and translation barriers in European service law – the tension between the granting of justice and the protection of defendants in the European area of justice”

The problem of languages implicates considerable obstacles in international legal relations. Regulation No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (European Regulation on the service of documents) provides in Article 8, in which cases the addressee may refuse to accept the document to be served. This right exists if the document is not written in, or accompanied by a translation into a language which the addressee understands (1. lit. a) or the official language of the Member State addressed or, if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected (1. lit. b). The article analyses this statute on the basis of a judgment of the LG Bonn (District Court Bonn), formulates principles of interpretation and arrives at the conclusion that the language of correspondence has by right a great importance in commercial legal relations. Whoever engages here in a certain language and is able to communicate adequately in it, has in case of doubt not the right provided by Article 8 of the Regulation to refuse the acceptance of the document to be served.

International Maintenance Conference

Recovery of Maintenance in the EU and worldwide

International  Conference Heidelberg | 5 8 March 2013

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

  • Dorothee Einsele: “Overriding Mandatory Provisions in Capital Market Law – Does the Rome I Regulation Need a Special Rule Regarding Harmonized European Law?”

Capital market legal provisions can often be qualified as overriding mandatory rules in the sense of art. 9 (1) Rome I Regulation. However, third country provisions regulating the capital market are rarely applicable because they are usually not captured by art. 9 (3) Rome I. The question is whether this is different as to provisions of other EU/EEA Member States that are based on harmonized European capital market law. Since the relevant European directives separate the competence to regulate the case and allocate it to the different Member States, the relevant implementing provision of the competent Member State has to be applied or to be taken into account by the other Member States. This is true irrespective of the law applicable to the rest of the case, and could be clarified in recital 40 of Rome I.

  • Stefan Leible/Michael Müller: “Die Anknüpfung der Drittwirkung von Forderungsabtretungen in der Rom I-Verordnung” – the English abstract reads as follows:

 The article deals with the assignment of claims according to Art. 14 of the Rome I Regulation. The focus lies with the third-party effects of an assignment. The pending revision envisioned in Art. 27 (2) of the Rome I Regulation as to the third-party effects of an assignment prompts the discussion which law should apply to an international assignment in this regard. The article mainly addresses three options: the law of the assignor’s habitual residence, the law of the assigned claim or the law of the contract of assignment. The final vote of the Special Committee among the options provided for in the annex of the article reflects a continuing diversity of opinions.

  • Michael Grünberger: “Relative Autonomie und beschränkte Einheitlichkeit im Gemeinschaftsmarkenrecht” – the English abstract reads as follows:

The Community trade mark is a specific European Union intellectual property right with an unitary character and equal effect throughout the Union. In an aversion of the principle of subsidiarity, Union law depends on member state’s procedural and substantive law in order to enforce the rights granted by the Community Trade Mark Union effectively. Thus, there is tension between the uniform nature of the substantive rules on the Community trade mark as well as its uniform judicial protection and the means to achieve these goals. The ECJ’s decision resolves two issues: (1st) The scope of the prohibition against further infringement issued by a Community trade mark court with territorial jurisdiction over the entire Union extends to the entire area of the Union. However, if the trade mark proprietor restricts the territorial scope of its action or, if the use of the sign at issue does not affect the functions of the trade mark, the court must limit the territorial scope of its injunction. (2nd) The Community trade mark court must order coercive measures to ensure compliance with its injunction. Their territorial scope is identical to the scope of the injunction. The article also tries to answer the remaining questions regarding the jurisdiction for adopting and/or for quantifying or otherwise assessing the coercive measure pursuant to the court’s lex fori and how to enforce a coercive measure adopted and assessed by a Community trade mark court in the territory of another member state.

  • Peter Schlosser: “Death-blow to the so-called „Supplementary Interpretation of Contracts („ergänzende Vertragsauslegung“) in the Case of Invalid Terms in Consumer Contracts?”

The focus of the ruling (C-618/10) – and its explosive force – is on the reply to the second question of the referring court. The issue – often coming up in judicial practice relating to general contract terms – is: what is the content of the remaining contract should one of its pre-drafted terms had turned out to be invalid. Mostly, indeed, the respective term is to be taken for non-existing without any adaptation of the contract other than by taking recourse to general legal rules. However, to apply this approach slavishly without any element of a supplementary solution leads sometimes to inacceptable injustice, for example to excessive windfall benefits for hundreds of thousands of consumers. Therefore, the Spanish law vested the courts with a discretionary power (and not a mandatory one, as the translation into some of the languages of the Union, including the English language, makes us believe) to grant a modification of the incriminated term, which power is termed as “facultades moderadoras”. According to the Court of the Union to grant such a power contravenes the Directive on Abusive Contract Terms.

The author is very critical with this narrow-minded approach of the European Court’s ruling. This narrow-mindedness is the consequence of the total refusal to take into consideration the solutions which the legislations and courts of the Member States (particularly in Germany and Austria) had developed for the purpose of avoiding said excessive injustice. Hence, his proposition is to develop an understanding of the ruling as narrow as possible. According to him one must strictly stick to the Court’s words “[…] which allows a national court […] to modify that contract […]” (in the official Spanish original: “atribuye al juez nacional […] la facultad de integrar dicho contrato modificando el contenido de la cláusula abusiva”.). Therefore, even in consumer contracts the following must still remain permissible:

1. Often the national legislation implementing the Directive is stricter than the Directive itself. Hence, it is possible that under such a national legislation a contractual term is taken for inadmissible, notwithstanding the fact that its content does not amount to the shocking degree to be qualified as “abusive”. In such a case the ruling of the court does not apply.

2. The very Court of the Union makes it clear that for dealing with the remaining part of the contract the national court must take recourse to “the interpretive methods recognized by domestic law”, “taking the whole body of domestic law into consideration”. Since in German and Austrian law dealing with a gap in a contract, even if the gap is due to the inadmissibility of a contract term, is a matter of contract interpretation rather than of a court’s “modifying power” the court which is disposing of such an approach may still take recourse to it.

3. The main argument of the Court of the Union is the proposition that the Directive must be implemented in a manner to built up a “dissuasive effect” for the co-contracting party of the consumer. In many situations, however, a mitigating power of the court cannot possibly have any influence on the dissuasive effect to be established by the implementation of the Directive. This is particularly the case when the co-contracting party of the consumer had been loyal and has adapted its terms to the case law and where thereafter, however, the courts tighten the latter.

  • Christian Heinze/Stefan Heinze: “Striking off a foreign company branch from the German commercial register”

As a result of the freedom of establishment in the European Internal Market, companies are increasingly expanding beyond national borders and establish branches in other Member States. Under the Eleventh Council Directive 89/666/EEC, these branches are subject to registration and compulsory disclosure in the Member State of establishment. The following article discusses a judgment of the Oberlandesgericht Frankfurt a.M. which had to decide whether the German branch of an English private company limited by shares could be struck from the German commercial register according to the German procedural rules which provide for deletion from the register if a company does not own any assets. The article supports the negative answer given by the Frankfurt court and discusses alternative ways to clear commercial registers of “phantom branches” of inoperative foreign companies.

Building on the very successful Journal of Private International Law conferences in Aberdeen (2005), Birmingham (2007), New York (2009), and Milan (2011) we now invite abstracts for the next conference in Madrid on 12-13 September 2013.  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 all stages of their career including postgraduate students.  Please submit an abstract if you want to make a presentation at the conference and you are willing to produce a final paper that you will submit exclusively to the Journal to be considered for publication, subject to the Journal’s standard refereeing procedures.  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 Aberdeen) and by the conference organisers in Madrid (Professors Pedro de Miguel Asensio and Carmen Otero of UCM and Francisco Garcimartin and Elena Rodriguez of UAM).

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

  • Urs Peter Gruber: “Scheidung auf Europäisch – die Rom III-Verordnung” – the English abstract reads as follows:

Regulation (EU) No. 1259/2010 („Rome III“) contains uniform conflict-of-laws rules on divorce and legal separation. Compared with the previous conflict-of-laws rules of the Member States, it brings about fundamental changes. Primarily, in contrast to the majority of the pre-existing national laws, it favours party autonomy. Only absent a valid agreement on the applicable law, divorce or legal separation are governed by the law of the state where the spouses have their common habitual residence or – under certain circumstances – were last habitually resident. The common nationality of the spouses and the lex fori are only subsidiary connecting factors.

The Regulation also touches some politically intricate subjects. First of all, the Regulation is also applicable to same-sex marriages; however, pursuant to a compromise reached in article 13, those Member States which do not accept same-sex marriages are not obliged to pronounce the divorce of such a marriage. Art. 10 which deals with gender discrimination might lead to a rigid exclusion of Islamic laws.

  •  Christopher Wilhelm: “Die Anknüpfung von Treuhandverträgen im Internationalen Privatrecht unter besonderer Berücksichtigung der Rom I-VO” – the English abstract reads as follows:

Having contractual as well as property rights elements, and because of the great variety of its possible fields of application, the German Treuhand does not only pose problems in German substantive law, but also in private international law. The present article shows how to find the law applicable to the contractual fiduciary relationship according to the Rome I Regulation. It points out and answers certain questions arising from the material scope of the regulation, and discusses the possibility and the advantages of choice of law. The main focus is on the law applicable in the absence of choice by the parties, Article 4 Rome I, and the specific problems occurring. The article closes by summing up the key aspects and a comment of the author.

  •  Matthias Lehmann: “Vorschlag für eine Reform der Rom II-Verordnung im Bereich der Finanzmarktdelikte” – the English abstract reads as follows:

 On today’s interconnected financial markets, illegal behaviour – such as false or misleading information in prospectuses, violation of disclosure and shareholder transparency rules, ill-founded credit rating, merger offers not complying with legal requirements, insider trading or market manipulation – often has repercussions in different countries. This raises the question of the law that applies to the civil liability of the tortfeasor. In the European Union, the answer has to be found in the Rome II Regulation, which provides a comprehensive set of conflict rules for non-contractual obligations. However, the regulation does not contain any specific provision on financial torts. Its general rule, Article 4 (1), points to the law of the state in which the damage occured, i.e. either the state of the investors’ home or that of their bank accounts. When looking from the perspective of the tortfeasor – typically an issuer or an intermediary – this has the effect that a multitude of different laws governs, which moreover cannot be predicted in advance. In order to remedy this situation, the German Council for Private International Law, a body established by the German Ministry of Justice, suggests amending the Rome II Regulation. The proposal, an English version of which is annexed to this article, provides for new, specific connecting factors, an escape and a fallback clause, as well as special rules regarding collective redress, bilateral relationships and party autonomy.

  • Martin Illmer: “Anti-suit injunctions and non-exclusive jurisdiction agreements” – the English abstract reads as follows:

 Due to uncertainty about the interpretation and scope of two earlier, potentially conflicting Court of Appeal decisions concerning anti-suit injunctions enforcing non-exclusive jurisdiction agreements, the state of the law was unclear. Setting aside an anti-suit injunction granted by the High Court at first instance, the Court of Appeal made a fresh start. It distinguished the earlier case law on the matter and laid down general guidelines for the grant of anti-suit injunctions enforcing non-exclusive jurisdiction agreements. The decision itself as well as the accompanying plea on behalf of textbook writers deserve full support.

  •  David-Christoph Bittmann: “Das Gemeinschaftsgeschmacksmuster im Europäischen Zivilprozessrecht” – the English abstract reads as follows:

 The following article deals with a decision rendered by the Oberlandesgericht Munich. Subject of this decision is an application for declaration of enforceability of an injunctive relief from the Tribunal de Grande Instance of Paris. With this injunctive relief the French court prohibited further infringements of a community design committed by a French and a Belgium enterprise, which are part of one concern. The applicant was in fear of further infringements of the community design through this concern in Germany so it applied for the declaration of enforceability of the French injunctive relief at the Landgericht Munich I. The German court however declined the application on the grounds that it has no jurisdiction as far as the Belgium enterprise is concerned; furthermore an injunctive relief was not a decision that could be subject of a declaration of enforceability. The Oberlandesgericht changed the decision and released the declaration of enforceability. The following article takes a closer look to the reasoning of the senate that had to deal with questions of international jurisdiction, of remedies in cases of protection of industrial property and of the enforcement of foreign judgements according to the Regulation Brussels I.