Third Max Planck Post-Doc Conference on European Private Law

MPI for Private Law, Hamburg 10.05.2010 - 11.05.2010

The Max Planck Institute for International and Comparative Private Law invited sixteen of the next generation of legal academics to attend the Third Post-Doc Conference in Hamburg on 10 and 11 May 2010. The resulting group offered an impressive diversity of research areas and methodical approaches.

Broadly speaking, the presentations fell into three categories, representing the areas of work and interest of the three Max Planck Institute directors.

Reinhard Zimmermann took the chair for the first session, dealing with the area of civil law. Bianca Gerdella Tedeschi (Turin/ Italy) gave the first presentation on “Wrongful Interference in Contractual Relations”. She examined the regulatory systems in Italy, England and the USA, using a comparative analysis to detail the key problem areas. The second presentation in this area was given by Anne Dani-Fatôme (Paris/ France) on “The Doctrine of Appearance and Contract”, with a focus on the French experience in particular. Franziska Myburgh (Stellenbosch/ South Africa) then spoke about the formal requirements in South African contract law, drawing comparisons with Germany and England. This discussion included the parole evidence rule, an important element of English law, which provides that the contract is restricted to the relevant document itself and does not permit the use of other information or documentation to assist in its interpretation. Naturally, a rule such as this cannot come into being without some loopholes; the presentation thus also examined the matter of rectification at a practical comparative level. Dorothea Leczykiewicz (Oxford/ United Kingdom) presented an examination of “EU Law of Private Liability in Damages: A Tort Law Regime?”, examining in particular cases from competition law where the ECJ had determined that the party suffering damages in, for example, breaches of anti-trust law, had a direct entitlement to a claim. The scepticism expressed by the conference participants as to the competence of the ECJ to create this legal remedy was countered by Jürgen Basedow in the subsequent discussion, who emphasised that for the court, with few other alternatives, compensation for damages was an obvious legal remedy. Lyczykiewicz however took the view that the choice of legal remedy should be left to the Member States. Adam Fuglinkszky (Budapest/ Hungary) then spoke on “The Ways of Civil Liability in a Mixed Jurisdiction (Using the Example of Quebec) Network of ‘Radio Communis’” and provided a raft of examples and comprehensively developed hypotheses on the influencing factors of mixed regulation.

Jürgen Basedow took leadership for the presentations on the subject of procurement law, competition law and arbitration. Grith Skovgaard Ølykke (Copenhagen/ Denmark) spoke on “The Concept of Abnormal Law Traders in Public Procurement Law”. Chiara Tuo (Genoa/ Italy) discussed the problems relating to “EU Air Transport Law between Fundamental Freedoms and External Relations”, primarily addressing (EU) constitutional aspects. Dusan Popovic (Belgrade/ Serbia) presented the topic of “The Relationship between Competition Law and Regulation in the EU Electronic Communications and Energy Sectors”, examining the interaction between regulation and competition. Carmen Azcárrage-Monzonis (Valencia/ Spain) spoke on the most recent developments in PIL and succession law under the title of “International Successions, Harmonization of Private Law and Multiculturalism”. Séverine Menétrey (Nice/ France) presented (in French) on the problems of amicus curiae in the context of “Investor State Arbitration in the European Union”.

The next topic group dealt with company law and capital market law, led by Holger Fleischer. Vanessa Martí Moya (Valencia/ Spain) opened the discussion with a presentation on “Financial Assistance Prohibition and Merger Leveraged Buy-Out: Legal Treatment in Comparative Law”, comparing the regulatory systems in Spain, Italy, France and the United Kingdom. She was followed by Nikolaos Vervessos (Athens/ Greece) who provided a comprehensive presentation on “The Principles of Raising and Maintenance of Legal Capital and the Prohibition of Financial Assistance under Greek Law”. The subsequent discussion centred on concerns regarding the prohibition on financial assistance. Revealingly, this has done little to decrease the frequent, evidently practically driven use of leveraged buy-outs. Following lunch, Veerle Colaert (Leuven/ Belgium) continued the program with a presentation on “The Multi-Layered Legal Framework Governing the Financial Institution-Investor Relationship” where she examined the interfaces between the three ‘levels of law’: MiFID capital market law codes of conduct, European Community consumer laws and the civil law of member States. This presentation was followed by Machiael Schouten (Amsterdam/ Netherlands) under the title “The Mechanisms of Voting Efficiency”, providing a taxonomy of the factors influencing efficient voting behaviour of stock corporations and exposing the conflicting goals underlying controversial topics such as empty voting, strategic voting behaviour and the use of voting rights advisors. The conference closed with two presentations primarily addressing questions of legal method in the context of commercial law. Franca Contratto (Zurich/ Switzerland) spoke on “The Law Enforcement Deficit in Swiss Economic Law: Phenomenology, Causes and Possible Remedies”, the subject of her professorial dissertation, in which she also aims to analyse data provided from surveys of experts in the field. The presentation given by Carsten Gerner-Beuerle (London/ Great Britain) on “Stock Market Development and Legal Change” dealt with the opportunities and challenges of the qualitative analysis of commercial law with reference to the at its time highly regarded La Porta et al. study that affirmed questions addressing the significance of the legal environment for the broad spectrum of economic activity. At the end of the conference Holger Fleischer expressed his admiration for the quality of the contributions and closed the conference with a sincere thanks to the presenters for their challenging and highly interesting presentations.

Walter Doralt und Klaus Ulrich Schmolke, Hamburg