The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

M. Wendland: Procedural challenges within the system of international jurisdiction according to the new European regulations on matrimonial property regimes and the property consequences of registered partnerships: Well-known and innovative instruments from the experimental laboratory of the European Commission

As from 29th January 2019 two new EU regulations will apply establishing a comprehensive legal framework which regulates jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (2016/1103) and of the property consequences of registered partnerships (2016/1104). The two regulations will close one of the last remaining gaps within the system of International Private and Procedural Law in family matters. Its regulative approach is as new as innovative even though not entirely unproblematic. This paper examines selected problems of both regulations from the perspective of International Procedural Law and presents possible solutions.

R. Magnus: The implied choice of law in international succession and family law

Recent EU Regulations have led to major changes in international succession and family law. This article compares the conflict of laws rules of the different Regulations dealing with the possibility to choose the applicable law implicitly. The main focus lies on a question not yet much discussed, namely whether or not the validity of the implied choice depends on the validity of the legal act from which it is inferred (e.g. will, agreement as to the succession, marriage contract, prenuptial agreement). As conclusion it is proposed that careful distinctions should be made taking into account the different reasons that might hinder the validity of a legal act (in particular the distinction between invalidity because of a lack of the required form and invalidity due to a conflict with public policy) and specific particularities of family and succession law.

F.Eichel: The jurisdictional concept of ‘the place of the event giving rise to the damage’ and international trade mark infringements spread through digital media

Both the German Federal Court (BGH, 19.11.2017 – I ZR 164/16) and the Austrian Supreme Court (OGH, 20.12.2016 – 4 Ob 45/16w) have applied to Article 125(5) of Regulation No 2017/1001 (EU trade mark regulation) the general case law on the determination of “the place of the event giving rise to the damage” in terms of Art. 7(2) of the Recast Brussels Regulation. If that was correct, Art. 125(5) would, to a large extent, lose its effectiveness. Contrary to the position of the OGH and the BGH, the ECJ rulings “Hejduk” and “Wintersteiger” on Art. 7(2) Brussels Regulation are not applicable to Art. 125(5), and neither is the ECJ ruling “Nintendo ./. BigBen” which has no jurisdictional dimension. Instead, Art. 125(5) Regulation No 2017/1001 (as well as Art. 82(5) Regulation No 6/2002) must be interpreted independently and should be aligned with Article 2:202 of the “CLIP Principles”. This latter model rule places jurisdiction for infringement claims upon the courts of a state when an alleged infringer who has not acted in this state has directed his or her activities to the forum.

P. Schlosser: International Jurisdiction in case of Transborder Transportation in Execution of a Single Order

The direct claim of the injured party, or its insurer, may be introduced alternatively in the court or the place of dispatch or in the court of the place of destination.

K. Thorn/C. Lasthaus: Legal Succession concerning Immovable Property under the European Commission’s Succession Regulation

The European Commission’s succession regulation 650/2012 aims to harmonise the application of succession law among EU member states. However, its material scope, in particular the ambit of the exemptions under Art. 1 para. 2, has remained contentious. In recent decisions, the European Court of Justice (ECJ) and the Austrian Supreme Court (OGH) leaned towards a narrow interpretation of the exemptions provided by Art. 1 para. 2 lit. k and l thereby extending the Regulation’s scope. The ECJ held that under Art. 1 para. 2 lit. k and l, 31 a legacy “by vindication”, which directly grants a proprietary interest in the bequeathed, in this case immovable, property to the legatee, should be given effect even in member states where proprietary interests cannot be directly transferred by legacy. The OGH discussed the scope of Art. 1 para. 2 lit. l concerning the constitutive effect of a recording in the public register provided by the law of the Member State in which the register is kept. In this legal review, the authors argue that while the courts’ intention to strengthen the Regulation’s objective is to be supported, their reasoning should have been more precise.

A. Golab: Cross-border implications of fictitious service and unreasoned judgements in the EU

In the present case the Federal Court of Justice addressed the issue of acceptability of effects produced by a Polish court’s recourse to fictitious service of documents from the perspective of German procedural public policy. The aim of the annotation is to assess whether the application of Article 1135 (5) of the Polish Code of Civil Procedure met the criteria of public policy exception and how the conclusion of this analysis might apply to other similar instances where fictitious service is at play with regard to recognition or enforcement of judgements in the Brussels regime. In addition, the annotation will also address the issue of an unreasoned Polish judgment, which was also expounded on by the Federal Court of Justice.

A.-S. Tietz: The notarisation of articles of association incorporating a German Limited Liability Company (GmbH) by a Swiss notary based in the Canton of Berne

The Higher Regional Court of Berlin (Kammergericht) held that a German Limited Liability Company (GmbH) had been properly incorporated, even though its articles of association had been notarised by a Swiss notary in the Cantone of Berne in Switzerland. It reversed the decision of the District Court (Amtsgericht) of Charlottenburg which had refused to enter the company into the Commercial Register as it had deemed the content of the foreign deed invalid. The Higher Regional Court held that the foreign notarisation had substituted a notarisation carried out by a German notary, as the notarial deed had been read aloud to the participants in the presence of the notary, and subsequently approved and signed personally by the participants. It therefore ordered the District Court to enter the company into the German Commercial Register. Although this was the first time that a German Higher Regional Court had been confronted with this question, the decision has revived the debate on the “recognition” of legal relationships evidenced by foreign deeds under German corporate law. The article contributes to the discussion by addressing the legal questions resulting from the decision, which concern the applicable law to the formal requirements as well as the “substitution” of a notarisation by a German notary by a Bernese notary within the meaning of Sec. 2 German Limited Liability Companies Act.

S.L. Gössl: Regulatory Gaps and Analogies in Conflict of Laws – Example: Embryo Parenthood

The German Supreme Court (BGH) had to decide which law to apply to the (assumed) parenthood on embryos in California. The court developed a conflict of laws rule not reflecting the German substantive law regarding this issue. The article analyses and criticizes the decision. It focuses on the question how, from a methodological point of view, private international law deals with regulatory gaps, and how to close them by analogy. Eventually, the article proposes an alternative characterization of the issue and, consequently, an alternative conflict of laws rule. It furthermore shows that the most important gap lies in the (deficient) substantive law where regulation is needed urgently.

The proceedings of the 29th edition of the Journée de droit international privé, the conference devoted to private international law topics organised yearly at the Swiss Institute of Comparative Law, have just been published under the title US Litigation Today: Still a Threat For European Businesses or Just a Paper Tiger?.

The volume, edited by Andrea Bonomi and Krista Nadakavukaren Schefer, discusses the current realities of US litigation for foreign companies. It features contributions by Samuel P. Baumgartner, Andrea Bonomi, Thirza Döbeli, William S. Dodge, Susan Emmenegger, Christoph A. Kern, Matthias Lehmann, Eva Lein, Linda J. Silberman, Symeon C. Symeonides, Karen Topaz Druckman, and Thomas Werlen.

For more information, including the table of contents, see here.

Professor Ronald Brand has published the second edition of his book, International Business Transactions Fundamentals, with Kluwer Law International. It is designed primarily for use in a course on International Business Transactions, but is suitable as a desk reference on important basic issues raised on cross-border contractual relationships. Unlike some International Business Transactions casebooks which focus on WTO-related aspects of international trade regulation, this book draws extensively on private international law and the ways in which it can be used to structure cross-border commercial transactions. Coverage includes basic commercial law issues including price-delivery terms and letter of credit financing, dispute resolution issues and how to avoid them by proper planning at the transaction stage, the legal framework for import and export regulations planning, contracting with foreign sovereigns, compliance with anti-corruption legislation, legal relationships created by foreign investment, antitrust regulation and compliance, and a chapter on professional responsibility and the unique legal representation issues raised in cross-border transactions.

The second edition incorporates nearly four decades of work by the author to present the fundamentals of the law of international business transactions organized in a manner designed to help the reader identify risks inherent in cross-border transactions; eliminate risks where possible; reduce risks that cannot be eliminated, and reallocate risks through the use of contractual relationships. It provides an organized progression of materials from the simple export-import transaction to complex international investments, all designed to help the reader understand how to avoid risk in transnational transactions through the use of the legal framework available for providing institutional protection; the purchased protection available for transnational transactions; and the ways in which negotiated protection may be provided to build on institutional and purchased protections

Professors interested in considering the book for adoption in a course may contact Laurien Roos at Laurien.Roos@wolterskluwer.com.

Professor Dr Matthias Lehmann is looking for a highly skilled and motivated PhD candidate and fellow (Wissenschaftliche/r Mitarbeiter/in) to work at the Institute for Private International and Comparative Law, University of Bonn, Germany, on a part-time basis (50%) as of 1 April 2019.

The successful candidate holds a first law degree (ideally the First German State Examination) and is interested in the international dimensions of private law, in particular private international law, European law and/or comparative law. A very good command of German and English is expected; good IT skills are required.

The fellow will be given the opportunity to conduct his/her PhD project (according to the Faculty’s regulations). The position is paid according to the German public salary scale E-13 TV-L, 50% (about 1,300 Euro net per month). The initial contract period is two to three years, with an option to be extended; the candidate is free to leave before at any point subject only to timely notification. Responsibilities include supporting the Institute’s director in his research and teaching as well as independent teaching obligations (2 hours per week during term time).

If you are interested in this position, please send your application (cover letter in German; CV; and relevant documents and certificates, notably university transcripts and a copy of law degree) to lehrstuhl.lehmann@jura.uni-bonn.de by February 4, 2019. The University of Bonn is an equal opportunity employer.

On March 22-23, 2019, the Center for International Legal Education (CILE) at the University of Pittsburgh School of Law will host an international conference on the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). The conference is entitled “The CISG at Middle Age.” It will be held in the Teplitz Memorial Courtroom of the Barco Law Building.

On Friday morning, panelists will discuss topics dealing with “The Past of the CISG: Its Successes and Failures.” This session will honor the memory of Peter Schechtriem and his suggestion that the CISG could provide “an International Linqua Franca.” The Friday afternoon panels will consider “The Present of the CISG: Is Uniform Interpretation Possible?,” honoring the memory of John Honnold and his exhortation towards “Resisting the Homeward Trend.” A dinner on Friday evening will feature a keynote address by Pitt Emeritus Professor Harry Flechtner on “The Past, Present and Future of the CISG (and Other Uniform Commercial Law Initiatives).” Saturday morning’s panels will focus on “The Future of the CISG: Have we come to Praise it or Bury it?”

The conference presents the opportunity to consider whether the widespread state ratification of the CISG indicates success in international law development, or whether the common practice of opting out of the CISG in private contracts demonstrates that its impact has been limited at best.

Conference speakers include: Ronald Brand (University of Pittsburgh), Petra Butler (Victoria University Wellington), Susanna Cook (Cohen & Grigsby), John Coyle (University of North Carolina), Milena Djordjevic (University of Belgrade), Johan Erauw (University of Ghent), Harry Flechtner (University of Pittsburgh), Henry Gabriel (Elon University), Jack Graves (Touro University), Joseph Gulino (Diaz, Reus & Targ), Stefan Kröll (Bucerius University), Ulrich Magnus (University of Hamburg), Francesco Mazotta (International Contract Manual), Chiara Giavannucci (University of Bologna), Vjosa Osmani (University of Pristina), Alejandro Osuna, (Tijuana, Mexico), Francesca Ragno (University of Verona), Ingeborg Schwenzer (University of Basel), Nina Tepic (University of Zagreb), Marco Torsello (University of Verona), Mark Walter (DAI Inc)

A link to more information on the conference, including additional links to the program and registration can be found here.