The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features three articles on private international law. The English abstracts, kindly provided by the journal’s editor-in-chief, Prof. Dr. Dörte Poelzig (M.jur., Oxon), University of Leipzig, read as follows:
Wie kann der Zugang zu ausländischem Recht in Zivilverfahren verbessert werden?
ZVglRWiss 117 (2018) 1-23
[How can we improve the access to foreign law in civil proceedings?]
In civil disputes quite frequently foreign law applies. Under German law, both the process of establishment and the application of foreign law rules lie within the responsibility of the court. However, there is only little solid knowledge about the practical problems in the process of establishing the content of foreign law. The existing legal instruments to establish foreign law are partly deficient. Above all there is a lack of readily available information channels. On an empirical basis the present paper identifies possible solutions.
Welches Internationale Privatrecht wollen wir im 21. Jahrhundert?
Federico F. Garau Sobrino
ZVglRWiss 117 (2018) 24-49
[What kind of Private International Law do we want in the 21st century?]
A substantial part of the current European and conventional Private International Law [PIL] rules based on EU law or International treaties is characterized by abstruse wording, what is caused by a controversial, far-from-reality legislative technique. Many of these rules are unintelligible to the average legal mind. We are confronted with highly specialized PIL norms, created by and for specialists, but alien to everyday life and inaccessible to law practitioners, who often do not understand them nor know how to apply them. Private International Law does no longer address the needs of society; the question whether it provides a solution to legal cross-border problems, or whether it has become “the problem” itself, is a legitimate one.
Das internationale Datenprivatrecht: Baustein des Wirtschaftskollisionsrechts des 21. Jahrhunderts
–Das IPR der Haftung für Verstöße gegen die EU-Datenschutzgrundverordnung–
Jan D. Lüttringhaus
ZVglRWiss 117 (2018) 50-82
[Private International Law of Data Protection: A Crucial Building Block of International Business Law in the 21st Century]
“Data is just like crude [oil]. It’s valuable, but if unrefined it cannot really be used”. As of May 18, 2018, the General Data Protection Regulation (EU) 2016/679 (GDPR) provides a European framework that regulates the refining of data as the “new oil”. In the digital age, data may not only be transferred across borders in a split second but, more often than not, data processing already takes place abroad. Against this backdrop, the GDPR reaches far beyond the borders of the EU Member States. This extraterritorial dimension raises a multitude of questions relating to both international data protection law and private international law. Conflict-of-law issues equally arise in intra-EU cases: For example, illegal data processing gives rise to a claim for damages under the GDPR. At the same time, the Regulation does not contain any rules on, for instance, fault, the calculation of damages or the limitation period. Thus, despite the autonomous nature of the claim under the GDPR, the applicable national law must still be determined in cross-border scenarios.
Moreover, standard contract terms may also lie in the focus of both conflict of laws and data protection law, e.g., when determining whether data processing is necessary for the performance of a contract or whether the data subjects’ pre-formulated consent is valid. Generally speaking, various preliminary questions may arise in the areas of conflict of laws and international administrative law given that the GDPR provides only an incomplete framework that often relies on and has to be complemented by national law.
The very recent ECJ Schrems-case illustrates that data protection litigation is often international by nature. In light of this, the GDPR also contains rules on jurisdiction which have to be reconciled with the Brussels Ibis Regulation. Finally, as the GDPR paves the way for national instruments on collective redress in data protection cases, the international dimension of these actions must equally be examined.