Only some of the individual projects can be listed here as representative of the overall research focus. Nonetheless, they stand as examples for the fundamental canon corresponding to central questions prevalent throughout the Institute’s research focus. Although the emphasis of the listed projects may lie in European law, considerable attention is also paid to non-European legal regulations. This is particularly true in the field of economic law. These projects are therefore to be understood similarly as efforts in global legal comparison.
The Institute has been a participant in the "Commission on European Contract Law" (the “Lando Commission”) since its initial formation. Under the commission’s efforts the "Principles of European Contract Law" have been developed and published in a multi-volume work (at the Institute: Zimmermann). Herein, individual aspects of general contract law, such as contract formation, validity, performance, remedies for non-performance but also other topics such as prescription, set-off and plurality of debtors have been examined and compiled in the fashion of a restatement. Presently, the Institute is continuing this work as a member of the Joint Network on European Private Law. Established by the European Commission, the body is intended as an international “Network of Excellence”.
Alongside this project Institute researchers are participating in additional international working groups that are addressing individual questions on the law of obligations from a comparative perspective, particularly non-contractual obligations such as unjustified enrichment and tort law.
Ultimately, a considerable amount of work is dedicated to comparing the principles set forth by the various international work groups (Unidroit, Commission on European Contract Law, European Group on Tort Law) and assessing their coherence, facilitating their application and incorporation within the German national law of obligations, and utilizing them as a comparative law point of reference in its ongoing evolution. Simultaneously the inquiries aim to refine and further develop the principles based on what experience has shown concerning national legal provisions and European legal directives. With regards to the extendibility of Principles of European Contract Law within Europe and the contribution that they may be able to make to a further Europeanisation of Private Law, see e.g., Reinhard Zimmermann, Die Principles of European Contract Law als Ausdruck und Gegenstand europäischer Rechtswissenschaft (2004); see further, the 2005 volume "The New German Law of Obligations: Historical and Comparative Perspectives" and the translation of the three volumes of the Principles (Lando/Beale I and II; Lando/Clive/Prüm/Zimmermann III) into German by von Bar und Zimmermann.
The international research project "European Civil Code – Principles of a European Law of Obligations and Law of Movable Property" in which the Institute participates was begun in 1999. The project is jointly led by the Institute together with the Universities of Osnabrück (von Bar) and Utrecht and is dedicated in its first phase to European law of obligations. The emphasis of the Institute is in the field of insurance contract law (Basedow) and the law of personal security (Drobnig) while the University of Osnabrück and the University of Utrecht are, respectively, addressing tort law and general contract law.
In the field of personal security approximately 40 harmonised European rules for personal credit security have been developed based upon a legal inventory previously devised in the 15 “old” member states. These principles have been presented in the style of a restatement such that each legal rule is accompanied by an explanatory commentary as well as national notes offering an integrated comparative law analysis. Security in movable property is being examined in an identical fashion.
In the area „Principles of European Insurance Contract Law“ a comprehensive comparative law study of insurance law in the 15 “old” member states was completed with the results being published in 2002 and 2003 in the three volume set titled “Europäisches Versicherungsvertragsrecht” (European Insurance Contract Law). Subsequently, in connection with the “Restatement of European Insurance Contract Law” project group established by the now-deceased Prof. Reichert-Facilides, 50 statute resembling provisions on general insurance contract law have been devised – the comparative law notes accompanying the provisions were almost entirely prepared at the Institute. These provisions have already found an attentive ear in the ongoing European discussions addressing law and policy. As it relates to insurance contract law, work done in this regard is being coupled with the Common Frame of Reference pursued by the European Commission.
Additionally, the Institute is dedicating its efforts to another important area in European legal harmonisation: company law and corporate group law (Hopt).
The company law and corporate group law probe for appropriate measures of corporate leadership and control (corporate governance), a question currently being examined by all of the world’s modern legal systems, is an effort not only demanding interdisciplinary research which incorporates economic theory alongside jurisprudence. Rather, the undertaking encompasses a legal perspective extending far beyond the study of company law in a narrow sense. Without a consideration of the structure and legal regulation of capital markets, the interplay between internal and external controls cannot be comprehended. Already in 1998, the Institute’s widely received collective volume „Comparative Corporate Governance - The State of the Art and Emerging Research" (Oxford University Press) set forth the foundational questions that even now continue to frame this discussion.
Two parallel research projects undertaken in cooperation with European, Japanese and U.S. researchers pursue this question. The project Comparative Corporate Governance, financed by various foundations, is dedicated to comparative corporate governance in Europe. The project Anatomy of Corporate Law has taken on the functional and comparative analysis of company law and through the inclusion of Swiss, Japanese and U.S. research it succeeds in addressing comparative law and legal harmonisation within Europe and beyond.
The European Commission convened High Level Group of Company Law Experts, in which Hopt was named the German member, initially had the task of advising the European Commission in respect of legal guidelines for takeover bids. Their subsequent assignment represented a considerable extension and addressed the advancement of European company law and corporate governance. Numbering among its achievements, the recommendations of the group as to European company law and corporate governance entered into the European Commission’s May 2003 communication “Modernising company law and enhancing corporate governance in the European Union.” The members of the High Level Group will continue to take part in ongoing developments. Related topics to be taken under consideration at the Institute include: takeover law; supervisory boards; societas Europea (European public companies); the fields, style and scope of a harmonisation in company law; deregulation in company law; law of the minority shareholders; and questions on the status of a European foundation.
Company law is closely related to capital market law. 2005 saw the publication of an expert report on the reform of prospectus liability. Comprehensive, comparative law based, and legal policy oriented, the analysis had been commissioned by the Federal Ministry of Finance. The report, prepared under the guidance of Hopt, was supplemented with an examination of liability for false information in secondary capital markets. The aim of the report was to identify starting-points for a future European wide harmonisation of prospectus liability as developed from a consideration of currently applicable prospectus liability regulations found in the civil law schemes of the individual EU member states as well as Switzerland and the USA. Although the expert report did not have the responsibility of devising detailed proposals for prospectus liability regulations at the European level or for specific reforms to be undertaken in Germany, a range of considerations resulted from the comparative law examination of the national regulations on which the future shape of this legal field may be oriented. While publication of the report means that work on its behalf has for the time being been concluded, future developments in this legal field will continue to be the subject of Institute research and input.
Under the guidance of Hopt, several individual projects are devoted to foundation law and the law of non-profit organisations. A whole series of publications documents the research results of these projects. The volume "Nonprofit-Organisationen in Recht, Wirtschaft und Gesellschaft" (Non-profit Organisations in Law, Economy and Society) emanated from a comparative conference featuring an interdisciplinary focus. Taking place in September 2003, the conference was held in cooperation with the Institute for Foundation Law at the Bucerius Law School and brought together economists, jurists and social scientists. Alongside conceptual, phenomenological and historic foundations as well as economic and sociological theories of the non-profit sector, questions surrounding the corporate governance of non-profit organisations were also a focal point. The ongoing project addresses questions of corporate governance common to company law and, through the comparison of knowledge gained in both legal fields, realises a synergy effect. The volume „Stiftungsrecht und Stiftungsrechtsreform in Deutschland, den Mitgliedstaaten der Europäischen Union, der Schweiz, Liechtenstein und den USA“ (Foundation Law and Foundation Law Reform in Germany, European Union Member States, Switzerland, Liechtenstein and the USA) takes inventory of the field. It is upon this work that the recently published, „The European foundation – a new legal approach“ has been based. Rounding out this field of inquiry are a dissertation (Hartnick) on the topic of control problems in donor organisations ("Kontrollprobleme bei Spendenorganisationen") and the post-doctoral thesis of von Hippel which examines the structures, obligations, control mechanisms and business activities of non-profit entities from civil law, tax law and comparative law perspectives („Grundprobleme von Nonprofit-Organisationen. Eine zivilrechtsdogmatische, steuerrechtliche und rechtsvergleichende Untersuchung über Strukturen, Pflichten, Kontrollen und unternehmerische Tätigkeiten von Vereinen und Stiftungen“).
One of the significant elements of a common market within Europe is competition law. On the current competition law agenda one finds the question to what extent and with what instrumentality European competition law can and should be implemented through private lawsuits – as opposed to an exclusive reliance on governmental agencies and means. Through a “Think Tank on Private Enforcement” on which Basedow participated as a German representative, a Green Paper titled “Damages Actions for Breach of the EC Antitrust Rules” was prepared and in turn published by the European Commission on 19 December 2005. Sponsored by the Institute and headed by Basedow, an internationally attended symposium in April 2006 titled "Private Enforcement of EC Competition Law", dedicated itself to this currently debated question. In addition to addressing the law in respect of Germany and those principles of European tort law which have been acknowledged by the Court of Justice, the conference also presented the experiences of various European countries as well as the USA. The conference papers were published in 2007.
In the area of private international law (PIL), i.e. the array of legal rules determining which national law is applicable to matters having a cross-border nature, the harmonisation of the law in Europe continues forward. Under the guiding hand of Basedow, the Institute is making a scholarly contribution to this endeavour. Thus, Institute working groups have devised and published comments on draft proposals for a European regulation of the private international law of contractual obligations (Rome I) and non-contractual obligations (Rome II).
As a joint effort of the Institute and the Max Planck Institute for Intellectual Property, Competition and Tax Law, the project „Private International Law of Intellectual Property“ focuses upon the private international law and procedural law in regards to intellectual property. In addition to fellows from both institutes, participants include scholars from the Universities of Uppsala (Strömholm), Gent and Nottingham (Torremans), Paris II (Galloux), Amsterdam (van Eechoud), Chicago-Kent (Dinwoodie) and Tartu/Estonia (Pisuke). The primary goal of the project is to develop principles of private international law and procedural law which can serve legislators and judges as a model in support of future legal developments. Additionally, doctoral dissertations undertaken in connection to the project will allow for a deeper consideration of individual aspects inherent to the field. Participants from the Hamburg institute include Basedow, Metzger and Heinze.
Harmonisation of European Private and Economic Law – On the Road to a European Jurisprudence