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Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2/2020: Abstracts
The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:
H.-P. Mansel/K. Thorn/R. Wagner: European Conflict of Law 2019: Consolidation and multilateralisation
This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January/February 2019 until November 2019. It provides an overview of newly adopted legal instruments and summarizes current projects 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 instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss important decisions of the CJEU. In addition, the article looks at current projects and the latest developments at the Hague Conference of Private International Law.
B. Hess: The Abysmal Depths of the German and European Law of the Service of Documents
The article discusses a judgment of the Higher Regional Court Frankfurt on the plaintiff’s obligations under the European Service Regulation in order to bring about the suspension of the statute of limitations under § 167 of the German Code of Civil Procedure (ZPO). The court held that the plaintiff should first have arranged for service of the German statement of claim in France pursuant to Art. 5 Service Regulation because, pursuant to Art. 8(1) Service Regulation, a translation is not required. However, the article argues that, in order to comply with § 167 ZPO, the translation must not be omitted regularly. The service of the translated lawsuit shall guarantee the defendant’s rights of defense in case he or she does not understand the language of the proceedings.
H. Roth: The international jurisdiction for enforcement concerning the right of access between Art. 8 et seq. Brussel IIbis and §§ 88 et. seq., 99 FamFG
According to § 99 para. 1 s. 1 No. 1 German Act on Procedure in Family Matters and Non-Contentious Matters (FamFG), German courts have international jurisdiction for the enforcement of a German decision on the right of access concerning a German child even if the child’s place of habitual residence lies in another Member State of the Regulation (EC) No. 2201/2003 (EuEheVO) (in this case: Ireland). Regulation (EC) No. 2201/2003 does not take priority according to § 97 para. 1 s. 2 FamFG because it does not regulate the international jurisdiction for enforcement. This applies equivalently to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (KSÜ).
J. Rapp: Attachment of a share in a Limited Liability Partnership (LLP) by German courts
Attachment of a share in a Limited Liability Partnership (LLP) by German courts: Despite Brexit, the LLP still enjoys great popularity in Germany, especially among international law and consulting firms. Besides its high acceptance in international business transactions, it is also a preferred legal structure due to the (alleged) flexibility of English company law. In a recent judgement, the Federal Court of Justice (Bundesgerichtshof) had the opportunity to examine the LLP’s legal nature in connection with the attachment of a share in a Limited Liability Partnership. The court decided that German courts have jurisdiction for an attachment order if the company has a branch and its members have a residence in Germany. By applying § 859 Code of Civil Procedure, it furthermore ruled that not the membership as such but the share of a partner in the company’s assets is liable to attachment.
U. Spellenberg: How to ascertain foreign law – Unaccompanied minors from Guinea
The Federal Court’s decision of 20 December 2017 is the first of four practically identical ones on the age of majority in Guinean law. It is contested between several Courts of Appeal whether that is 18 or 21 years. As of now, there are nine published decisions by the Court of Appeal at Hamm/Westf. and five by other Courts of Appeal. For some years now, young men from Guinea have been arriving in considerable numbers unaccompanied by parents or relatives. On arrival, these young men are assigned guardians ex officio until they come of age. In the cases mentioned above, the guardians or young men themselves seized the court to ascertain that the age of majority had not yet been reached. The Federal Court follows its unlucky theory that it must not state the foreign law itself but may verify the methods and ways by which the inferior courts ascertained what the foreign law is. Thus, the Federal court quashed the decisions of the CA Hamm inter alia for not having ordered an expert opinion on the Guinean law. The CA justified, especially in later judgments, that an expert would not have had access to more information. With regards to the rest of the judgment, the Federal Court’s arguments concerning German jurisdiction are not satisfying. However, one may approve its arguments and criticism of the CA on the questions of choice of law.
D. Martiny: Information and right to information in German-Austrian reimbursement proceedings concerning maintenance obligations of children towards their parents
A German public entity sought information regarding the income of the Austrian son-in-law of a woman living in a German home for the elderly, the entity having initially made a claim for information against the woman’s daughter under German family law (§ 1605 Civil Code; § 94 para. 1 Social Security Act [Sozialgesetzbuch] XII). German law was applicable to the reimbursement claim pursuant to Article 10 of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. Pursuant to § 102 of the Austrian Act on Non-Contentious Proceedings (Außerstreitverfahrensgesetz), and in accord with the inquisitorial principle, third persons like a son-in-law are also obligated to give information. The court applied this procedural rule and declared possible restrictions under Austrian or German substantive law inapplicable.
In the reverse case of an Austrian recovery claim filed in Germany, the outcome would be doubtful. While true that under German law an adjustment (Anpassung) might allow the establishment of an otherwise non-existing duty to inform, restrictions on the duty to disclose information pursuant to Austrian and German law make it difficult to justify such a claim.
M. Gernert: Effects of the Helms-Burton Act and the EU Blocking Regulation on European proceedings
For more than 20 years, each US president had made use of the possibility of suspending the application of the extraterritorial sanctions of the Helms-Burton Act, thus preventing American plaintiffs from bringing actions against foreigners before American courts for the „trafficking“ of property expropriated to Cuba. This changed as President Trump tightened economic sanctions against the Caribbean state. The first effects of this decision are instantly noticeable, but it also has an indirect influence on European court proceedings. In this article, the first proceeding of this kind will be presented, focusing on international aspects in relation to the Helms-Burton Act and the EU-Blocking-Regulation.
K. Thorn/M. Cremer: Recourse actions among third-party vehicle insurance companies and limited liability in cases of joint and several liability from a conflict of laws perspective
In two recent cases, the OGH had to engage in a conflict of laws analysis regarding recourse actions among third-party vehicle insurance companies concerning harm suffered in traffic accidents which involved multiple parties from different countries. The ECJ addressed this problem in its ERGO decision in 2016, but the solution remains far from clear. The situation is further complicated because Austria, like many European states, has ratified the Hague Convention on the Law Applicable to Traffic Accidents. This causes considerable differences in how the law applicable to civil non-contractual liability arising from traffic accidents is determined.
In the first decision discussed, the OGH endorsed the decision of the ECJ without presenting its own reasoning. The authors criticizes this lack of reasoning and outline the basic conflict of laws principles for the recourse actions among third-party vehicle insurance companies. The second decision discussed provides a rare example for limited liability in the case of joint and several liability. However, given that the accident in question occurred almost 20 years ago, the OGH was able to solve the problem applying merely the Convention and autonomous Austrian conflict of laws rules. The authors examine how the problem would have been solved under the Rome II Regulation.
A. Hiller: Reform of exequatur in the United Arab Emirates
In the United Arab Emirates, an extensive reform of the Code of Civil Procedure entered into force on 2 February 2019. The reform covers half of the Code’s provisions, among them the law regulating the enforcement of foreign judgments, arbitral awards and official deeds. This article provides an overview of the amendments made on the enforcement of foreign decisions and puts them into the context of the existing law. The article also sheds light on the procedure applying to appeals against decisions on the enforcement. The reform does away with the requirement of an action to declare the foreign decision enforceable. Instead, a simple ex parte application is sufficient, putting the creditor at a strategic advantage. However, with a view to arbitral awards in particular, important issues remain unadressed due to the somewhat inconsistent application of the New York Convention by Emirati courts.
Now available online: RabelsZ, Issue 2/2020
The second 2020 issue of RabelsZ is now available online. It features two essays as well as the contributions to a Symposium on career paths into legal academia held at the Max Institute in June 2019:
Lord Hodge, The Scope of Judicial Law-Making in the Common Law Tradition, pp. 211 et seq
Judge-made law is an independent source of law in common law systems. To jurists brought up in legal systemswhich have codified law, this is one of the striking features of the common law tradition. Instead of interpreting a code to develop the law, common law judges develop the law which their predecessors have made. While statute law nowimpinges on many areas of private law, large tracts of our private law remain predominantly the product of judicialdecisions. [In this contribution] I wish to discuss some of the areas of private law which have been and remainpredominantly judge-made and the limits in the common law tradition on judicial law-making.
Markus G. Puder, Law and Language in Action. Transformative Experiences Associated with Translating the Louisiana Civil Code into German, pp. 228 et seq
In the course of translating the Louisiana Civil Code into German I had to overcome the unique challenges posed bythe source text and the receptor text. Beyond the translation issues stemming from its own bilingual origins, theLouisiana Civil Code codifies mixed law in unprecedented ways. Different but no less challenging conditionssurrounded the destination text, as distinct species of legal German exist. In addition to the legal German of Germany, these include the legal German of Austria and Switzerland. Resolving these challenges required tailored translationapproaches within the spectrum of source text and receptor text orientation. My article discusses the challenges I encountered and the decisions taken in response. It concludes with final thoughts on my experiences as legal translator and legal comparativist.
SYMPOSIUM: Career Paths into Legal Academia
Reinhard Zimmermann, Akademische Karrierewege für Juristen im Vergleich. Einführung in das Symposium (Career Paths into Legal Academia Compared. Introduction to the Symposium), pp. 264 et seq.
By highlighting characteristic aspects of an academic career in the United States, the present contribution attempts toprovide an interesting contrast to the career paths into legal academia available in the countries on which thesymposium, held in the Hamburg Max Planck Institute in June 2019, focuses. The countries considered in thesymposium are Germany and Austria, France, Italy, England and Scotland, and Japan. Here, too, we find considerable differences which both shape different legal cultures and are shaped by them.
Walter Doralt, Akademische Karrierewege für Juristen in Deutschland und Österreich (Career Paths into Legal Academia in Germany and Austria), pp. 268 et seq.
Seen from a distance, it is often presumed that career paths in law and legal education in Austria and Germany arevery similar. This assumption is also widely held in Germany (with regards to Austria). Some similarities do indeedexist. However, many aspects during the university education are surprisingly different in both countries. Equally, thisis true for subsequent career stages in academia. This article analyses the common points and differences.
Dorothée Perrouin-Verbe & Samuel Fulli-Lemaire, Career Paths into Legal Academia in France, pp. 299 et seq.
It is likely that a description of the way university careers unfold in France, at least as far as law is concerned, will surprise even seasoned observers of the academic world. Not everything, naturally, will appear outlandish: that the single most important precondition is having a PhD thesis is perhaps to be expected for a civilian jurisdiction; that the overall system is centralized will not astonish those that have come into even superficial contact with the country. But the extent of that centralization, the sheer number of unwritten rules, the relative lack of importance attributed to publications and the specificities of the agrégation, the competitive exam which serves as the main point of entry into the body of law professors, as well as the acceleration it is designed to provide to young academics’ careers, may surprise some readers.
Francesco Paolo Patti, Career Paths into Legal Academia in Italy, pp. 324-350 (27)
The present contribution aims to explain the relevant steps in the Italian academic career path and its most relevant traits. It is divided in three parts. The first contains a brief outline of the Italian legal framework on universityrecruitment and its evolution over the last forty years. The various structures are presented in a synthesised and simplified way, with the purpose of indicating the rationales underlying the different reforms. After having sketched out the playing field, the article describes a typical Italian academic career and points out the unique aspects of each stepon the long path of academia, from university graduation to the call as full professor. Finally, the paper outlinesfundamental features of the Italian academic social environment, which are essential to understand how the rules on university recruitment actually work in practice. Needless to say, the last part is the most important one. In addressingthe subject matter, it is not possible to limit the treatment to a description of the rules and their rationales as there areseveral non-written rules belonging to the Italian academic tradition that need to be presented in order to understanduniversity recruitment in actual practice. Aspects discussed in the present contribution concern especially the field of private law.
Andrew Sweeney. Career Paths into Legal Academia in Scotland, pp. 351 et seq.
This contribution deals with the smallest country represented at the symposium. Its size, however, is not the solefeature that distinguishes Scotland from the others. As a legal system, Scotland sits exactly neither with theContinental systems (represented here by Germany, France and Italy), nor with England. It is, instead, often describedas a mixed legal system, sharing features with both Civilian and Common-law systems. […] This [contribution] focusesprimarily on the position in Scotland. But much of what is discussed will be equally applicable to an English academic, and it is easy to overstate the differences between the two jurisdictions. Where interesting differences exist betweenthe two jurisdictions, an attempt has been made to point them out. […] Space constraints restrict the assessment to a select few of the myriad of subjects which the topic of academic career paths could include, and some of thoseselected are permitted only a cursory glance. Particular focus is given to a career in private law, and it must be bornein mind that differences – sometimes significant ones – exist in other areas such as criminology, legal theory and legal history.
Harald Baum, Akademische Karrierewege für Juristen in Japan (Career Paths into Legal Academia in Japan), pp. 374 et seq.
The landscape for an academic legal career in Japan shows some striking differences from its German counterpart. While in Germany a large number of qualified young academics struggle to secure a university posting, Japanese lawfaculties presently face difficulties in filling free positions. A second major difference is the way in which an academiccareer is achieved. In Japan, in-house, tenure-track careers are the norm whereas, at least up until now, they are a rare exception in Germany, where it is highly unusual to be appointed by the university where one has obtained his orher academic qualification. Accordingly, a change of universities in the course of an academic career is rare in Japan while in Germany the opposite is true. Japanese law faculties are entirely free to determine the qualificationsnecessary for an academic promotion. A second monograph, like the German »Habilitation«, is unknown in Japan. A PhD thesis, however, is increasingly common. The typical academic career starts after four years of undergraduatestudies, followed by a two-year period of study at graduate level or, alternatively, two years of training at a law school. Thereafter, a three-year doctoral programme has nowadays become the norm. This is followed by employment as an assistant, and in the event that the candidate’s qualifications are seen as sufficient, by a promotion to the position of associate professor. The latter is a member of the faculty and employment is no longerlimited in terms of duration. The final step is promotion to full professorship at the average age of 36 to 40.
The VW NOx Emissions Group Litigation, [2019] EWHC 783(QB), and (some aspects of) CoL
Yesterday, the High Court of London decided two preliminary issues in a large group action, certified as a Group Litigation Order (sub no. 105), brought by about 91,000 owners or lessees of VW, Audi, Skoda and SEAT cars. The claim is brought, against the manufacturers of the affected vehicles (VW, Audi, Skoda, and SEAT), against the relevant VW financial services arm and against a variety of authorised UK based VW dealers. Article 8 no. 1 of the Brussels Ibis Regulation will have been of relevance to the foreign ones amongst the defendants. No express explanations are offered how claimants eligible for the UK group litigation are determined – presumably it depends on where the car was bought.
The precise personal/territorial scope of the respective mass litigations would have been interesting, since the proceedings in the UK are just some of many by disaffected VW owners around the world, and the outcomes for the claimants seem to differ quite substantially. As early as in 2015, a class-action similar to the UK one was commenced against VW in the Federal Court of Australia, on behalf of around 100,000 VW owners, which was settled for up to AusD 87 million. The total amount may go up to AusD 127 million, depending on the ultimate number of claimants. On 1 April 2020, the Federal Court of Australia approved the settlement of the Australian class actions. The settlement was approved on the basis of a Settlement Scheme developed by the solicitors for the applicants and made public here, that sets out the process by which claims can be registered, assessed and paid, and the Deed of Release and Settlement that was agreed between the parties, made publicly available by those solicitors here. In Germany, proceedings under the (quite restrictive) collective redress mechanism of the “Musterfeststellungsklage” were settled recently as well, in this case for up to € 830 Million in total in relation to around 400.000 claimants. These claimants still need to accept individually the offered sums until 20 April 2020 after receiving offers from VW based on the remaining value of their cars these days. Individual litigations outside the Musterfeststellungsklage about the influence of the amount of kilometres that the respective car has already run (amongst other issues) are reaching the German Federal Court of Justice these days (the hearings will take place on 5 May 2020). In addition, the Court of Justice of the European Union is dealing with other aspects of the VW case, see on CoL here.
The claim in the UK proceedings alleges a variety of causes of action against the Defendants, including fraudulent misrepresentation in relation to the sale of the affected vehicles. A number of those causes of action proceed upon the basis that the software function of the Engine amounts to a “defeat device” within the particular meaning of Article 3 (10) of EU Parliament and Council Regulation 715/2007 dated 20 June 2007. If so, then one consequence is that its use in the engine and thus, the sale of the affected vehicles, was unlawful, being prohibited by Article 5 (2) of the Regulation.
Thus, the question arose whether Brexit altered anything in this respect. This question is easy to answer at the moment, see para. 12: “Brexit makes no difference here because EU Law (including the jurisdiction of the CJEU) will continue to have effect as if the UK was still a Member State until the end of the transition period which is 31 December 2020”.
A further issue relates to the Claimants’ reliance on formal letters to VW, issued by the “competent authority” in Germany for these purposes, being its Federal Motor Transport Authority, the German “Kraftfahrtbundesamt” (“the KBA”) dated 15 October, 20 November, and 11 December 2015 (“the KBA Letters”). The Claimants contended that these letters constitute decisions that the software function is a defeat device, that those decisions bind the courts in Germany as a matter of German law, that they also bind other authorities in other Member States, including English courts, either as a matter of EU law or as a matter of German law and by reason of EU and/or English law, there is a conflicts rule to the effect that the question as to whether they bind the UK court must be decided by reference to their binding effect or otherwise under German Law, being the law of the seat of the KBA.
For a number of reasons, including analogies to competition law, the Court decided that the KBA’s finding binds all Member States (including their courts) as a matter of EU law. This is why the Court abstained from taking a decision on the alternative grounds advanced by the Claimants.
At the same time and independently from the binding effects of the KBA’s finding, the Court found on its own account that the affected vehicles did contain defeat devices. Another bad day for VW.
The full text of the judgment is available here.