The Habilitationsschrift (post-doctoral lecture qualification paper) from Dr. Eva-Maria Kieninger bore the title “Wettbewerb der Rechtsordnungen und Binnenmarktziel – Studien zur Privatrechtskoordinierung in der Europäischen Union auf den Gebieten des Gesellschafts- und Vertragsrechts”.  The work occupies itself with the basic issue of what degree of harmonisation or standardisation is being provided for in the further development of private law in the European Union.  This topic remains a prevailing question notwithstanding the European parliament having already in 1989 and 1994 adopted two resolutions by which the member-states and the commission were called upon to commence the necessary groundwork for the preparation of a European civil code and even when a considerable number of academic projects dedicated to such a comparative law undertaking have already been set in motion.
 
In early debates, the arguments made by critics of a further harmonisation or even a standardisation of private law in the EU fed upon the idea of a “Wettbwerbs der Rechtsordnungen” or  “Systemswettbewerb” - catchwords only rarely absent in modern publications on the outlook for European private law harmonisation, particularly when company law is at issue.  The label even made its entrance into the jurisdiction of the European Court of Justice.  In the closing debates of the Centros adjudication, the advocate-general based his interpretation of the freedom of establishment quite significantly upon the notion of a competition between (company law) regulations (“concurrence entre systèmes normatifs”, “competition among rules) that should be freely left to run its course. 
 
The supporters of competition draw their arguments above all else from two sources: they refer to American experiences relating to state competition for corporate charters – sometimes characterized as “the Delaware-effect”.  In the USA, rule making authority for company law lies in the hands of the individual states.  This entitlement combined with applicable conflict of law provisions and the unique ability of individual states to impose a franchise tax upon a corporation solely on the basis of its incorporation site has resulted in incorporation competition among the states – a competition which Delaware has led for approximately 100 years.  Long denounced as a race to the bottom, the Delaware-effect is currently celebrated as genius in the USA and recommended for emulation in Europe.
 
Alongside legal scholastic efforts, a parallel discussion has developed in the field of economics within the branches of institutional economics and evolutionary economics under labels such as regulatory competition.  In Germany, particularly Manfred Streit and students of his school as well as Lüder Gerken and Wolfgang Kerber represent this new direction in research.  They see the competition of institutions in the tradition of von Hayek as, above all, an engine of innovation and an instrument for restricting the unbounded exercise of power.  Astoundingly, the German economic literature has to this point hardly taken notice of the American Delaware-effect debate even though state competition for corporate charters is the perfect example for Streit’s competition model.  Binding the two strands of discussion together is a sub-goal of Kieninger’s work.
 
In addition to the just mentioned advantages of contributing to innovation and limiting the exercise of power and regardless of their economic or legal background, proponents of a competition model expect stronger protection of member-state national autonomy including individual legal cultures as well as the avoidance of weaknesses particular to harmonisation such as compromising legal provisions or the impending fossilisation of national and European law.  Furthermore, they hope for a better fulfilment of various individual or national preferences in respect of legal regulations as well as the achievement of the appropriate degree of uniformity.  Finally, competition is identified with the principle of subsidiarity and its realisation is also considered advisable for this reason.  In contrast, critics of competition fear a harmful deregulation of protective measures such as those in favour of consumers, employees, creditors, or minority shareholders and, outside of the private law sphere, a weakening of environmental protections or lost opportunities for public taxation, to name only a few examples.  In abbreviated form, a race to the bottom is predicted.
 
To date, the debate has primarily focused upon effects and has been fueled in particular by the search for a race to the top/race to the bottom alternative.   To this extent, competition is alternatively portrayed as a terrible vision or praised as a panacea.  The work at hand examines the potential effects of competition; however, the author is not concerned only with naming an alternative to the race to the top or race to the bottom.  In the first instance she queries in detail what is concealed behind the codeword “Systemwettbewerb”, e.g., which functions it can directly fulfil in private law, what exactly is to be understood from “top” or “bottom”, what reasons have led to a positive assessment of competition in more recent American literature and whether these reasons are transferable to the EU.  Above all, in the foreground stands the heretofore predominant question of whether, particularly as it relates to company law and contract law, the pre-conditions for “competition among rules” even presently exist or stand to be created in the future.
 
One cause for this shortcoming thus far in the debate lies in the fact that the majority of commentaries only refer to a model of competition as a buzzword or apply it in the service of an argument targeted in a different direction, for instance the starting point in defending a particular conflict of law provision such as the doctrine of domicile in international company law.  To date, only a handful of recent legal treatises as well as a special expert report of the Monopolkommission (Commission on Monopolies) have specifically focused upon competition with its prerequisites and functions as the centrepiece of the discussion.

One of these commentaries ends with the admonition that the wide-reaching and ambitious legal policy recommendations for the harmonisation of legal systems in Europe, ever more frequent in coming, demand at a minimum scientific clarity as to the material and methodological foundations of competition or a standardised legal system.  Moreover, the author notes that it is the task of legal scholars to create clarity in these foundations.  The study of Kieninger seeks to serve as a contribution towards this aim of clarification.