First Max Planck Postdoc Conference on European Private Law |
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MPI for Private Law, Hamburg 27.06.2006 - 28.06.2006 |
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On 27 and 28 June 2006 the Max Planck Institute for Comparative and International Private Law held the First Max Planck Postdoc Conference on European Private Law to which 18 junior researchers from across Europe were invited to present and discuss their research; the conference was conducted in English and French. As an extension of the successful Habilitandenkolloquien which the Institute has organised since 1999, the conference had the goal of fostering exchange and building networks among young scholars as well as presenting both the work and library of the Hamburg Max Planck Institute. A first point of thematic emphasis was formed by Company Law and Capital Market Law. “Codes of Conduct in the Financial Sector: Legal Nature and Function” was the topic of the dissertation and presentation of Christina Livada from the University of Athens. It was her position that codes of conduct are taking on ever-increasing role of importance in financial sectors. While the traditional codes of conduct represent “soft law” where legal regulations are foregone in favour of self-regulation, one now can observe binding law in the form of conduct codes in the area of investment services. Differing conceptualisations of analysis must however be developed to meet this distinction. In his report titled “The Effectiveness of Rules and Regulations in Company and Securities Law”, Geert Raaijmakers from the University of Maastricht called for an economically-based legal analysis. He contended that an increasing number of laws were being passed in the field of company law that regulated the behaviour of board members and financial service providers and others. It was his position that while legislatures often sought to direct the behaviour of individuals they generally failed to set clear behavioural guidelines. Thus, Raaijmakers called upon legislatures to more precisely formulate their intentions in order to attain the desired effects without undesired side-effects and thereby to maximize the efficiency of the regulations. In his contribution, “The Influence of American Law on French Corporate and Securities Law”, Pierre-Henri Conac from the University of Paris I (Panthéon-Sorbonne) asserted that US law has significantly influenced French law in the last ten years. He attributed this in part to European legislatures having relied upon the American scheme as a model for directives passed in this field. Simultaneously, in light of global competition, firms themselves are desirous of meeting US standards. A comparative law study addressing takeover law in Great Britain and France was presented by Ferna Ipekel in “Takeover Regulation in the UK and France”. The scholar from the Yedeitepe-University Istanbul analysed Directive 2004/25/EC - the so-called Takeover Directive – and its implementation in France and Great Britain. She found of particular note the different structure for the distribution of share holdings in each nation and also the specific influence of British regulations had on the formulation of the Directive. Forming a second point of emphasis at the conference was private international law (PIL). In the presentation of her dissertation, “The Scope of Community Law in the Light of the Methods of Private International Law – of the other way around?”, Stéphanie Francq from the Université catholique de Louvain in Louvain-la-Neuve addressed the two fundamental conceptions of IPL: the unilateral as well as the presently dominant multilateral conceptualisation. Using the example of the Gran Canaria cases, she examined the scope of application of the Consumer Protection Directive. In so doing she determined that it established its own scope of application as otherwise typically only occurs for lois de police. Given however, that consumer protection laws do not constitute lois de police, their basis must be premised upon a unilateral conceptualisation. “The Influence of the Rome Convention 1980 on the Law Applicable to Contractual Obligations on Russian Private International Law” was the focus of the dissertation and report from Anton Asoskov from the Lomonosov University in Moscow. On the basis of various examples, Asoskov illustrated how the 1980 Rome Convention on the Law Applicable to Contractual Obligations had a significant influence on the wording of the civil code from 2001. Revision in the form of the contemplated Rome I Regulation would, however, place Russian legislators once again under pressure to act. A methodological examination of PIL as set forth by Didier Boden in his presentation, “L’ordre public, limite et condition de la tolerance”. The researcher from the University of Paris I (Panthéon-Sorbonne) began with the assertion that the bilateral theory of theory of IPL corresponds to monism under public international law, the unilateral theory, however, to dualism. He then proceeded to attribute many of the significant problems of IPL to a methodological commingling of the two approaches. The idea of ordre public relates however to a typical unilateral-dualistic instrument that cannot be methodologically explained with notions from the bilateral-monistic approach. In her presentation, “The Role of Mandatory Rules in International Labour Law – a Comparative Study in the Conflict of Law”, Ulla Liukkunen from the University of Helsinki clarified the difficulties of defining terms in such mandatory rules. She stated that Directive 96/71/EC concerning the posting of workers in the framework of the provision of services could be helpful in definining these terms even where the implementation of this Directive in several Scandanavian countries starkly differs exactly in the area of collective bargaining agreements. Alex Mills from the University of Cambridge advocated for a new understanding of IPL in his presentation, “International Norms in a Private International Law”. First, Mills highlighted the historical connection between international private law and international public law, which functioned just as if it were a framework. Through a strong emphasis upon state sovereignity in the 19th century however, this connection dissappeared. With reference to national law where constitutional law establishes a skeleton for private law, Mills consequently argued for once again considering public international law as a framework for IPL in that it offers evaluative criteria which could be helpful in resolving problems. Comparative analysis and the harmonisation of contract law represented a third conference focal point. In his talk, “Reliance and Expectation Damages in Precontractual Relations”, Giorgio Afferni from the University of Genoa undertook a comparative examination of two theories of precontractual liability and the corresponding compensation for damages incurred. On one hand, European private law establishes liability for breaking off contractual negotiations, constituted either under a theory of fault (culpa in contrahendo) or as a matter of strict liability (contra factum proprium). As a second approach, liability for fraud is also possible whereby the compensation will vary depending on whether no contract at all resulted or one under other-than-desired terms. In the presentation “Immoral Contracts in Modern Contract Law”, Attila Menyhárd, University of Budapest, utilized the example of the § 200, Par. 2 of the Hungarian Civil Code to analyse the development of legal regulations that declare contra bonos mores contracts void. In so doing, Menyhárd found that the concept of moral transgression is being extended to include undesired behaviour from a public policy and economic perspective. The United Nation Convention of the Sale of Goods took center stage in the presentations of Sonja Kruisinga from the University of Utrecht and Mateusz Pilich from the University of Warsaw. In her talk “Non-Conformity in CISG: A Uniform Concept?”, Kruisinga examined individual aspects of contractually specified performance under the CISG such as contractual conformity, the obligation to provide timely notice of defects and the allocation of the burden of proof. In the process she pointed out the difficulty of ensuring a uniform understanding in conformity with Art. 7 of the CISG given that no one central court exists. Nonetheless, she commented that one could observe courts in their application of the CISG taking note of the decisions of courts from other countries. “The Principle of Good Faith in CISG” was the focus of the report from Pilich which first highlighted the significance of good faith in past and present European private law. At the same time, he noted that no uniform understanding of good faith formed the basis of Art. 7 Par. 1 at the time of the creation of the CISG. This provision addresses itself primarily on those whose role is to apply the law rather than parties to a contract. Beyond this provision, good faith can to a certain extent be seen as a general legal principle contained in the CISG; the CISG’s criteria of reasonableness, however, serves as functional equivalent of good faith throughout. A comprehensive consideration of tort law from a variety of perspectives represented the final emphasis of the conference. In her presentation “Le dommage ècologique: la reparation des atteintes au milieu naturel par les mécanismes du droit de la responsabilitè civile » Anne-Sylvie Dupont called for a new understanding of civil law damages under Swiss law. Although it is true that damages are determined in a traditional compensatory manner in the style of German law, it is however – as is shown by laws attributing liability for genetically altered organisms – not constraining. Therefore, she advocated for the availability of comprehensive compensation in cases of environmental harm and those already without legal change in which its interests have been harmed. The public law boundaries of maritime pollution regulation were tackled by Lorenzo Schiano di Pepe from the University of Genoa. In “International and European Regulation of Ship-Source Pollution from the Perspective of the Coastal State” he discussed the possibilities for a coastal state to act in a regulatory fashion and also to enforce internationally recognized rules and standards. As a contracting party to UNCLOS, he also saw the EU called upon in this regard. Product liability law was the topic of the talks by Monika Jagielska from the University of Silesia in Katowice as well as Jean-Sébastien Borghetti from the University of Nantes. In “Product Liability in European Private Law” Jagielska discussed how product liability is subject to general liability regulations but also to specially created product liability provisions. At the same time, product liability directives were often the cause for special regulations which, as incorporated into national legal systems however, were unable to do away with the fundamental differences in their doctrinal construction – strict liability or fault liability. Borghetti undertook a comparative law treatment of product liability law. In the lecture, “La Responsabilité du Fait des Produits. Étude de Droit Comparé” he first examined the historic development of product liability law. Since a special regulation at the European level was only issued in 1985, the national courts were able to develop within their jurisprudence their own individual approaches. As such, he noted that two basic models can be observed: the German model and the French model. While the German model is premised on tort law and is thus fundamentally conceptualised upon fault liability, the French model is one of contract and thus conceptualised on strict liability. Nonetheless, he found that that their results and valuations were comparable such that a high degree of convergence already existed in the field even before the product liability directive came into being. The conference was concluded with a lecture titled “The Methodological Problems of the Application of Private Law in Post-Communism” by Zdenek Kühn from the Charles University in Prague. Thereby, Kühn ascribed the substandard quality of jurisprudence in post-communist systems to the inadequate training that communist era judges had received in respect of legal methodology. A virtually orthodox adherence to the wording of a statute as well as an unawareness of high court decisions led to minimally comprehensible, haphazard outcomes. |
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Date of publication: 13.09.2006 |
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Program (36.7 KB)