The upcoming issue of the Zeitschrift für Vergleichende Rechtswissenschaft (German Journal of Comparative Law; Vol. 118 [2019], No. 3) features the following contributions:

40 Years Convention on the International Sale of Goods (CISG) – Even More Important Today than 40 Years Ago to Encourage Trade?

Petra Butler[1]

ZVglRWiss 118 (2019) 231–256

Taking note of the United Nations Convention on Contracts for the International Sale of Good’s (CISG) upcoming 40-year anniversary the article discusses its success in light of empirical research into the contractual behaviour of small and medium-sized enterprises. The article argues that given the way small and medium-sized businesses manage their dispute resolution risk when contracting cross-border, the CISG is needed today more than ever before.

Anbahnung, Abschluss und Durchführung von Smart Contracts im Rechtsvergleich

Francesco A. Schurr

ZVglRWiss 118 (2019) 257–284

In Germany and worldwide the Smart Contract is a legitimate form that can be used to conclude and to exercise contracts. Due to the enormous relevance in all the world, it seems to be essential to use the method of legal comparison in this field. This seems to be important in order to distinguish the Smart Contract from the Distributed Ledger Technology (DLT) in general and more specifically the Blockchain. The comparative analysis of the paper shows, that the fundamental aspects of the Smart Contract, therefore the immutability, the self-enforcement and the unlimitedness, are understood differently in the various legal cultures. Still there seem to be good reasons to assume, that software algorithms will change the contractual landscape in the future: maybe one day a contractual link will be feasible without law and this link will be allocated in a global space without national boundaries. The paper shows that the national law of the respective applicable jurisdiction, that is expressed in a natural language and not in a Code, is still essential. Without that, the features of a contractual relationship and the resulting rights cannot be determined. The most recent legislative initiatives in Italy and Liechtenstein can serve as examples for the future legal development in Europe.

Is the Law Ready to Face the Progressing Digital Revolution? – General Policy Issues and Selected Aspects in the Realm of Financial Markets from the International, European Union and German Perspective

Gudula Deipenbrock[2]

ZVglRWiss 118 (2019) 285–313

The progressing digital revolution is in full swing. It dramatically transforms economies, societies and law. To financial markets, cross-border business, opaque interconnections and rapid transformation are nothing new. It is however the accelerated high-speed growth of technical complexity and advanced levels of digitalisation that force financial markets actors in an unprecedented way to adjust to it. But is the law or – more specifically – are policy makers, legislators, and particularly regulators and supervisors ready to face the manifestations of the progressing digital revolution particularly in financial markets? Such readiness to respond entails at the outset to generally define and critically assess which policies are suitable and shall be pursued in finding adequate legal answers. This paper aims to contribute to this discussion. The paper concludes that the law plays a core part in framing, channelling, structuring and monitoring the progressing digital revolution in financial markets.

Grenzüberschreitende Musterfeststellungsklagen

Simon Horn

ZVglRWiss 118 (2019) 314–340

The paper discusses under which conditions the German Model Declaratory Action allows international participation. The interaction of Sec. 606 et seqq. of the German Code of Civil Procedure and the Brussels Ibis Regulation (Regulation (EU) No 1215/ 2012) provides various possibilities for cross-border Model Declaratory Actions and generally allows international participation in all roles. However, as the Brussels Ibis Regulation is not suited for collective redress mechanisms and the Model Declaratory Action has been drafted from a strictly national perspective without sufficiently considering the problems arising from international participation, cross-border Model Declaratory Actions are a challenge for both German civil procedure and European conflict of jurisdiction rules.

 

[1] Professor Dr. Petra Butler, Victoria University of Wellington and Director Institute of Small and Micro States. – I am indebted to Chris Nixon, senior analyst (NZIER), Hanneke van Oeveren and Georgia Whelan (both former students at Victoria University Faculty of Law) for the vital empirical research they have done underlying this paper and my enthusiastic colleagues and fellow MSME researchers in Spain, Canada, Singapore, Hong Kong, Belgium, Australia, and the UK (see www.msmejustice.com). I would also like to thank my colleagues at the Max-Planck-Institute for International, European, and Regulatory Procedural Law for providing me with a stimulating and supportive research environment. The article is partly based on a paper delivered at the “The CISG as Middle Age” conference at the University of Pittsburgh in March 2019.

[2] Prof. Dr. iur. Gudula Deipenbrock, Professorin für Wirtschaftsrecht, HTW Berlin, University of Applied Sciences, Germany, and Associate Research Fellow 2018/2019 at Institute of Advanced Legal Studies (IALS), University of London, UK. The author gave talks on selected aspects of preliminary versions of this paper at HTW Berlin, University of Applied Sciences, Germany, on 16 November 2018, and at Institute of Advanced Legal Studies (IALS), University of London, UK, on 26 February 2019.

Written by Jan von Hein

Dr Burcu Yüksel (University of Aberdeen, Scotland) and Dr Florian Heindler (Sigmund Freud University, Austria) have written a post for the Aberdeen Law School’s blog exploring what blockchain/distributed ledger technology can offer to enhance cross-border legal cooperation, particularly in the context of the Hague conventions. The full text is available here.

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is seeking a qualified person to fill a full-time position (40 hours) as Administrative Assistant (legal). For more information, see here.

As indicated in the announcement, “the successful applicant will provide administrative support in English and French, including drafting, formatting, and reviewing legal and other documents as well as day-to-day correspondence, assisting with the co-ordination and advancement of various HCCH projects, updating the HCCH’s databases, answering the telephone and door, and providing general assistance during international meetings held by the HCCH,” among other things.

The Permanent Bureau offers a two-year contract with the possibility of renewal.

The deadline for applications is 19 August 2019.

While this is not strictly a legal job, it may be of interest to some of our readers.

 

On 31 July 2019, the United Kingdom of Great Britain and Northern Ireland (UK) extended the HCCH Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (Child Support Convention) and the HCCH Convention of 30 June 2005 on Choice of Court Agreements (Choice of Court Convention) to Gibraltar in the event the Withdrawal Agreement is not ratified and approved.

As indicated in the UK Notes: “[t]he United Kingdom is responsible for the international relations of Gibraltar and wishes to ensure that Gibraltar continues to be covered by the Agreement[s] in the event that the Withdrawal Agreement is not approved.” If the Withdrawal Agreement is indeed signed, ratified and approved by the UK and the European Union, the UK will withdraw its instrument of ratification to the Child Support Convention and its instrument of accession to the Choice of Court Convention and its declarations of territorial extent (incl. reservations) to Gibraltar. The Depositary of the HCCH Conventions is the Ministry of Foreign Affairs of the Netherlands.

The UK has made a number of declarations and reservations under these Conventions for Gibraltar. For more information, please click here (Child Support Convention) and here (Choice of Court Convention).

The European Union, as a Regional Economic Integration Organisation, approved both the Child Support Convention and the Choice of Court Convention on 9 April 2014 and 11 June 2015, respectively.

The latest issue of RabelsZ has just been released. It contains the following articles (English abstracts are available only for articles in German):

Lord Thomas of Cwmgiedd, The Common Law in Private Dispute Resolution’s Shadow, pp. 487 et seq

Fleischer, Holger and Horn, Konstantin, Berühmte Gesellschaftsverträge unter dem Brennglas: Das Standard Oil Trust Agreement von 1882 (A Closer Look at Prominent Corporate Charters: The Standard Oil Trust Agreement of 1882), pp. 507 et seq

The charter shapes the life of the corporation. This crucial role notwithstanding, corporate contracts have received but scarce scholarly attention. Apart from a few exceptions, little is known about the charters of notable business entities. A new research program at the Max Planck Institute in Hamburg has set out to fill that void. The first test case, which is explored in this paper, is the Standard Oil Trust Agreement of 1882 – a seminal governance framework for corporate groups that spread quickly through different industries and became eponymous for the anti-trust legislation of the United States. The remarkable success of this agreement illustrates how innovative legal design can be just as vital to the survival and success of a company as managerial or technical innovation.

Hille, Christian Peter, Die Legitimation des Markenschutzes aus ökonomischer und juristischer Sicht- Ein Beitrag insbesondere zur Search Cost Theory des US-Markenrechts (Justifying Trademark Protection – An Economic and Legal Approach with Special Reference to the Search Cost Theory of US Trademark Law), pp. 544 et seq

Whereas trademark protection in the 19th century was justified by the theory of natural law, such concepts are generally considered to be outdated in secular law, even if the underlying values are still embedded in positive law. The law and economics approach, however, is focused solely on allocative efficiency as defined by Pareto optimality and the Coase theorem. US theory justifies trademark protection with the dual rationales of reducing consumer search costs and creating an incentive to improve the quality of products. While some authors criticize this view, they mostly do not propose a different approach, instead arguing that the search cost theory neglects certain social costs. Still, whereas the qualification of a trademark as a public good leads to completely different conclusions, it has been without significant influence on legal theory. Based on the search cost theory, the efficiency of German trademark law may be enhanced, e.g. by requiring a bona fide intention to use the trademark and by obliging the trademark owner to produce evidence of use. Requiring quality control in cases where a license is granted would also improve efficiency, and a mark should be invalidated if the sign becomes generic without this development being attributable to the owner. However, in order to evaluate the search costs as well as other social costs related to the trademark system, further research needs to be conducted with respect to the modes of action of trademarks (in particular in the context of famous trademarks and new technologies). The economic analysis of trademark law and the associated findings may be considered by judges in their interpretation of the law as long as their rulings do not serve to amend the statutory provisions establishing German trademark law (or the applicable European directives). Amendments of this nature would need to be carried out by lawmakers (see Art. 20 para. 3 of the German Constitution).

Makowsky, Mark, Die „Minderjährigenehe“ im deutschen IPR- Ein Beitrag zur Dogmatik des neuen Art. 13 Abs. 3 EGBGB (The “Marriage of Minors” in German Private International Law – The Legal Structure of the New Article 13 para. 3 EGBGB), pp. 577 et seq

The migration crisis has sparked a debate on how to deal with minor migrants who married in their home country or during their flight to Europe. In response to this problem, in 2017 the German legislature passed the Act Combatting Child Marriage. The paper analyses the new and highly controversial conflict-of-laws rules. Pursuant to the public policy clause of Art. 13 para. 3 EGBGB, a marriage is invalid under German law if a fiancé was under the age of 16 at the time of the marriage. If a fiancé had already turned 16 by the time of the marriage but was not yet 18, the marriage has to be annulled pursuant to German law. This strict approach allows for only few exceptions. The invalidity rule has a limited temporal scope and is not applicable when the minor fiancé had already turned 18 by the time of the law’s entry into force. Another exception to the invalidity rule exists if the marriage was “led” by the spouses up until the minor spouse’s reaching the age of majority and if no spouse had his or her habitual residence in Germany during the time between the marriage and the minor spouse’s attaining the age of majority. Due to the limited scope of these exception clauses, most child marriages are rendered void in Germany. This leads to the question whether the invalid marriage can nonetheless have some legal consequences, especially when the spouses relied on its validity. The exception clauses of the annulment rule are similarly very limited. An annulment is ruled out only if the minor spouse has turned 18 and wants to uphold the marriage or if the annulment would constitute an undue hardship for him or her. It is disputed whether this is in conformity with European law because the annulment rule also applies to marriages which were contracted and registered in another EU Member State. The paper argues that the law can be interpreted in accordance with Art. 21 TFEU.

Biemans, Jan, and Schreurs, Sits, Insolvent Cross-Border Estates of Deceased Persons – Concurrence of the Succession and Recast Insolvency Regulations, pp. 612 et seq

Infantino, Marta, and Zervogianni, Eleni, Unravelling Causation in European Tort Laws- Three Commonplaces through the Lens of Comparative Law, pp. 647 et seq