Max Planck Society

Max Planck Institute for Comparative and International Private Law

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Online version Handwörterbuch des Europäischen Privatrechts
2018
2018-08-27 – New publication: Commentaries on European Contract Laws

In the wake of the European Commission's decision to abandon (at least for the moment) its attempt to codify European contract law, Institute Director Prof. Dr. Reinhard Zimmermann and Nils Jansen (University of Münster) take stock of the current situation: In partnership with over twenty researchers, their edited volume Commentaries on European Contract Laws undertakes a rule-by-rule examination of the various drafts for a common European contract law, assessing the current state of development and providing orientation for future efforts at a European-wide unification of contract law.


The past forty years have witnessed an array of draft European Contract Laws, ranging from the Principles of European Contract Law to the Draft Common Frame of Reference and the Common European Sales Law. To these one can add the Directives adopted by European lawmakers in the area of consumer contract law, draft instruments aiming at a global unification, such as the UNIDROIT Principles of International Commercial Contracts, and other texts as well. Rather than allowing us to speak of a European contract law, these texts have contributed to the emergence of a complicated patchwork of European contract laws.

In the Commentaries on European Contract Laws, Reinhard Zimmermann and Nils Jansen have taken on the task of disentangling this seemingly impenetrable weave of texts: Together with their authors (the great majority of them researchers or former researchers of the Institute) they study, first, the development of these different reference texts in terms of their formulations and underlying values – comparing them with one another. In addition, they consider the formulated contract law rules in light of their pertinent historical and comparative background.

The Commentaries on European Contract Laws thus provide a comprehensive assessment of the current state of development while at the same time providing guidance on the considerations that should be taken into account in future efforts aimed at a uniform European contract law.

“The monumental project of achieving a Europeanization of contract law will, naturally, not be carried out by scholars alone. But scholars can use the time available to lay a true foundation, one unfettered by politically motivated timeframes and objectives.” Of this Reinhard Zimmermann is convinced.

Nils Jansen, Reinhard Zimmermann (Eds.), Commentaries on European Contract Laws. Oxford University Press, 2018, 2384 pp.

2018-08-16 – European Court of Justice decision on the assertion of succession rights throughout Europe

In a high-profile decision on the interpretation of the EU Succession Regulation, the European Court of Justice concurred with a view that had previously been taken by Dr. Jan Peter Schmidt, Research Fellow at the Max Planck Institute for Comparative and International Private Law, in an article published in 2013. In his newly published article “Challenged Legacies – First Decision of the European Court of Justice on the EU Succession Regulation (ECJ, 12 October 2017, C-218/16 (Kubicka))”, Schmidt addresses the consequences of this decision for legal practice.


Since 15 August 2015, cross-border succession cases have been governed by the EU Succession Regulation, to which the Max Planck Institute for Comparative and International Private Law contributed valuable guiding input during the drafting process. It does not only regulate the matter of what court has jurisdiction and what law is applicable, but has also established the European Certificate of Succession, an instrument for the assertion of succession rights throughout Europe. On 12 October 2017, the European Court of Justice issued its first decision on the interpretation of the Succession Regulation, C-218/16 (Kubicka).

The case concerned an issue that had been discussed intensely, especially among German scholars and practitioners: the relationship between the law applicable to the succession and the law of the place where the estate assets are located. In the case, a Polish woman wanted to designate her husband and their two minor children as equal co-heirs to her estate, with the exception of an item of immovable property located in Germany, which she wanted to transfer directly to her husband in her will. Under Polish succession law, this would have been permissible, but according to German succession law the property would first pass into the ownership of all three co-heirs and could only be transferred to the sole ownership of the husband in a second step through an agreement between the heirs and the legatee before a notary public and entry in the Land Register. The European Court of Justice ruled that Polish law is to be applied without restriction in such a case, and that the law of the place where the property is located – German law – must be subordinate to it. As a consequence, ownership of the property in Germany would pass directly to the testator’s husband at the time of her death without any entry in the Land Register.

In its decision, the European Court of Justice followed the same view that Jan Peter Schmidt had expressed in 2013 in an article in the Rabel Journal of Comparative and International Private Law (1 ff.), which ran contrary to the prevailing opinion at the time. In his newly published appraisal of the decision, Schmidt lauds the Court’s ruling while also revealing some weaknesses in the justification of the decision. He takes a thoroughly favourable view of the decision’s practical consequences, writing that while it requires German land registries to adjust their current practices, in the long term it can be expected to simplify the international administration of estates. Beyond this, he finds that the decision enhances the certainty and possibilities of cross-border estate planning.

Challenged Legacies – First Decision of the European Court of Justice on the EU Succession Regulation (ECJ, 12 October 2017, C-218/16 (Kubicka)), European Property Law Journal 7 (2018), 4 - 31.

2018-07-17 – Postdoctoral thesis on long-term contracts published

Published under the title Langzeitverträge, the book deals with long-term contracts. PD Dr. Walter Doralt, former Research Fellow at the Max Planck Institute for Comparative and International Private Law, addresses questions of long-term contracting under German, French and English law. The book also includes relevant economic foundations in this context.


In some systems, such as the German, long-term contracts are regulated as a particular type of long-term obligation (Dauerschuldverhältnis). Others do not have such a systematization on the level of a code or law at all. Walter Doralt’s monograph “Langzeitverträge”, which was recently published by Mohr Siebeck, first tackles this particular aspect of how contracts are systematized. The German approach adds a fair degree of complication, most notably on the level of a blurred terminology. Yet it does not deliver any substantial upside, especially not any simplification, which usually would be the reason to establish a particular category with common solutions for a range of similar problems. It is unsurprising that the comparative analysis of English and French law provides a stark contrast in this chapter.

A second part of the book sheds light on economic principles. This part does not aim at adding to the economic literature, but rather seeks to put the different strands of analysis into context and makes them accessible for readers who are lawyers rather than economists. The main part of the book follows with an analysis of five legal issues of paramount importance for long-term contracts. These are fiduciary duties and, in particular, whether and to what degree they can be waived; limits of perpetual contractual relations; change of circumstances (including contract drafting, risk distribution, renegotiation); termination for cause; and contractual penalties. This part of the work focuses on the five problems on the basis of current German law, with additional comparative references to the new French law of obligations, English law and international principles. The main results are summarised in the form of theses.

Walter Doralt, Langzeitverträge – (Jus Privatum 224), Mohr Siebeck, Tübingen 2018, postdoctoral thesis, Bucerius Law School 2017, XXI + 554 p.

2018-07-03 – Information Duties under Japanese and German Private Law

The recently published Special Issue Number 11 of the Journal of Japanese Law takes aim at information and disclosure duties in Germany and Japan. Edited by Harald Baum, Marc Dernauer and Moritz Bälz, the volume offers a comprehensive comparative analysis of the role played by information duties in both jurisdictions.


In various areas of private law, information duties constitute something of a Golden Rule. The duties derive from a legal obligation to provide or make available context-specific information. In Germany as well as Japan, information and disclosure duties have significantly increased in the last 30 years, now serving as a basis of regulation in civil law, commercial law, company law, insurance law and capital market law, among other fields.

In a special issue of J.Japan.L. titled “Information Duties – Japanese and German Private Law”, various types of information duties are analysed and classified by leading private law and business law scholars from Japan and Germany. The submissions explore the similarities and differences from both theoretical and practical perspectives. The comparative analysis looks to prompt legal experts in both countries to review and rethink the scope and necessity of the existing disclosure regimes.

The special issue stems from the symposium “Information Duties under Japanese and German Private Law”, which was held in 2016 in Tokyo on the occasion of the 20th anniversary of the Journal of Japanese Law. The findings from a second anniversary symposium from 2016 were published in Special Issue 10 titled “Self-regulation in Private Law in Japan and Germany”.

The Journal of Japanese Law is presently the world’s only western language publication offering a regular and timely documentation and analysis of the myriad lines of development in Japanese law. Its goal is to make all areas of the Japanese legal system accessible in a comprehensive and methodologically structured manner. Harald Baum, project leader of the Japan Unit at the Max Planck Institute for Comparative and International Private Law, founded the Journal in 1996.


Dernauer, M., Baum, H., & Bälz, M. (Eds.). (2018). Information Duties – Japanese and German Private Law. Köln: Carl Heymanns Verlag.

2018-06-22 – New conference volume: Die Verfassung der europäischen Wirtschaft

On the occasion of the 90th birthday of Prof. Dr. Dr. h.c. mult. Ernst-Joachim Mestmäcker, Institute Director from 1979 - 1994, a symposium titled “Die Verfassung der europäischen Wirtschaft” [The Constitution of the European Economy] was held at the Institute in 2016. The papers presented at the symposium are now available in a conference volume printed by Nomos Publishing and edited by Prof. Dr. Reinhard Ellger and Prof. Dr. Heike Schweitzer.

 

The conference volume sees the main areas of work and interest of E.-J. Mestmäcker illuminated in a collection of essays that demonstrate the enormous range of his work. In the opening laudation, Peter Behrens, emeritus professor at the University of Hamburg, traces Ernst-Joachim Mestmäcker's professional and academic path and goes on to present the legal and economic foundations of his professional life's central theme, namely the protection of individual freedom from exertions of economic power, considering in the process the roots of this freedom in the philosophy of Immanuel Kant and ordo-liberal thought.

Michael Köhler, emeritus professor at the University of Hamburg, details the spiritual foundations of the European unification movement in his contribution (“Europas Geist der Freiheit – rechtsphilosophische Prinzipien der europäischen Verfassung” [Europe's Spirit of Freedom - Legal Philosophy Principles in the European Constitution]). Describing the fundamental philosophical principles that are central to European law and state thinking, and also European unification, he offers a critical analysis of the EU’s current contractual structure and shows how these core principles might serve as a basis for a future political constitution of the EU.

Following up on this topic, the contribution of Vassilios Skouris, former president of the European Court of Justice and professor at the University of Thessaloniki, examines the role of the fundamental freedoms in the European economic constitution as well as their relationship to the Charter of Fundamental Rights. Skouris convincingly depicts areas of conflict between the fundamental freedoms, which protect commercial freedom, and fundamental rights, which are directed at other objects deemed worthy of protection. Based on this he outlines possible solutions for these conflicts and aims to ensure to the greatest extent possible a concordance between fundamental freedoms and fundamental rights.

Professor Holger Fleischer, Director at the Max Planck Institute for Comparative and International Private Law, traces the development of European corporate law in his paper “Europäisches Konzernrecht: Eine akteurzentrierte Annäherung” [European Group Law: An Actor-Centred Approach"]. Making reference to the 1958 post-doctoral thesis of Mestmäcker on corporate governance and shareholder rights, Fleischer examines the actions of various stakeholders in the area of corporate group law at the European level and illustrates the enormous fragmentation encountered in this legal area along with the resulting systemic tension.

Johannes Laitenberger, Director-General of the European Commission's Competition DG provides a comprehensive overview of changes initiated over the past decades in European competition law - including changes to state aid rules – in his article "Entwicklungslinien des europäischen Wettbewerbsrechts” [Lines of Development in European Competition Law]. He emphasizes the importance of competition rules for the goals of a single market economic integration in Europe. Additionally, the paper outlines the challenges posed to European competition rules by the digital economy.

In his article “Informationsvielfalt und Wettbewerbsrecht” [Pluralism of Information and Competition Law], Jan Henrik Klement, professor at the University of Mannheim, explores the question of whether and to what extent competition and antitrust law are suitable instruments for ensuring media diversity. In particular, he considers the role of merger control in antitrust law in conjunction with merger controls under Germany’s Interstate Broadcasting Treaty.

Reinhard Ellger, Heike Schweitzer (Eds.), Die Verfassung der europäischen Wirtschaft – Symposium zu Ehren von Ernst-Joachim Mestmäcker aus Anlass seines 90. Geburtstages (Wirtschaftsrecht und Wirtschaftspolitik, 291), Nomos, Baden-Baden 2018, 206 pages.

2018-06-12 – Translation of the amended Japanese law of obligations in the new issue of the Journal of Japanese Law

Issue 45/2018 of the Journal of Japanese Law features a German translation of the amended Japanese law of obligations. Anna Katharina Suzuki-Klasen, a Research Associate at the Max Planck Institute for Private Law, and Dr. Torsten Spiegel, a former Research Associate at the Institute, contributed to the translation. Prof. Dr. Harald Baum, Head of the Institute’s Japan Unit, is one of the editors of J.Japan.L.

 

The Japanese Civil Code, which had remained largely unchanged since its major overhaul in 1947, has now been revised considerably – especially in the area of law of obligations – as part of current reforms that will take effect in 2020. The reforms are a response to economic and demographic trends in Japan. International calls for Japanese law to be transparent and comprehensible were also an important factor in the reform process. From a comparative perspective, the crucial question is how the reformers of the Civil Code, which was created some 120 years ago and was influenced by Western – especially French and German – law, have now incorporated their own experience into the amendments. The present translation of the law of obligations was created at the University of Kyōto under the direction of Prof. Keizo Yamamoto, who was also a key contributor to the legal reforms. It offers a foundation for further research.

 

The current issue of J.Japan.L. is also publishing articles from the symposium “Discussing ‘Inclusion’ in Shrinking Societies: The Case of Japan”, which took place in Leuven, Belgium, on 9 March 2017. Other topics addressed in the issue include a historical perspective on the particularities of the organisational structure of Japanese corporations, which can be traced back to a nineteenth-century draft of the Commercial Code by Hermann Roesler, as well as legal developments concerning various forms of non-profit organisations in Japan.

 

The Journal of Japanese Law is currently the world’s only Western-language publication that documents and analyses the various lines of development in Japanese law in a regular and timely manner and according to a consistent concept, adopting a range of formats and methodological approaches to make Japanese law broadly accessible. Prof. Dr. Harald Baum, Head of the Japan Unit at the Max Planck Institute for Comparative and International Private Law, founded the publication in 1996. Since 2004, J.Japan.L. has been published by the Max Planck Institute in Hamburg in cooperation with the German-Japanese Association of Jurists.

 

Contents of Issue 45/2018:

 

Symposium

Dimitri Vanoverbeke, Narufumi Kadomatsu: Discussing ‘Inclusion’ In Shrinking Societies: The Case of Japan

Narufumi Kadomatsu: Inclusion and Seclusion in Area Management Activities

Jun Nishimura: Inclusion of Local Residents by the Integrated Community Care System

Hiromichi Sasaki: Inclusion among the Japanese People

 

Articles

Haruhito Takada, Masamichi Yamamoto: The “Roesler Model” Corporation

Yasuhiro Okuda, Trevor Ryan: Multiple Nationality and Parliamentary Eligibility in Japanese and Australian Law

Stacey Steele, Kaori Kano: Developments in Contemporary Japanese Electoral Law

Nobuko Matsumoto: Recent Changes in Laws Regarding Nonprofit Corporations and Charitable Trusts in Japan

Andrew R. J. Watson: Juvenile Law and the Age of Criminal Adulthood in Japan

 

Documentation

Keizo Yamamoto: Einführung in die Übersetzung des novellierten Zivilgesetzes 2020

Hiroyuki Kansaku, Atsuko Kimura, Gabriele Koziol, Maximilian Lentz, Fumihiro Nagano, Mizuho Nakamura, Torsten Spiegel, Anna Katharina Suzuki-Klasen, Hiroshi Tanaka, Katsuyuki Wada, Keizo Yamamoto: Übersetzung des novellierten Zivilgesetzes 2020

 

Case Law

Philipp Schmidt: Die Hauptverhandlung im japanischen Laienrichterverfahren

 

Reviews

Anja Petersen-Padberg: Johannes Kaspar/Oliver Schön (Hrsg.) Einführung in das japanische Recht

Moritz Bälz: Holger Fleischer/Hideki Kanda/Kon Sik Kim/Peter Mülbert (eds.) German and Asian Perspectives on Company Law

 

Reports

Mai Ishijima: Symposium on Aging Societies and Legal Approaches

 

Current matters

New books

2018-06-12 – “Bill shock” and legal responses to it

The rapid progress of mobile communications and both stationary and mobile Internet services in the past two and a half decades has fostered situations in which users do not in fact manage to properly use the technology or understand the pricing structure of the services. As a consequence, users now and then unexpectedly receive an unusually high bill, a phenomenon that is popularly known as “bill shock”. In “Der Rechnungsschock: Hinweispflichten im Bürgerlichen Recht und ihre Grenzen” [Bill Shock: Obligations to inform in private law and their limits], Dr. Eckart Bueren, a Research Fellow at the Max Planck Institute for Comparative and International Private Law, details the approach of the German Federal Court, critically examining the case law not only from a doctrinal perspective but also scrutinizing it under both a law-and-economics and a comparative lens.


Whether by talking on their mobile phones while travelling abroad, through misconfigured routers, or because of devices automatically connecting to the Internet, customers sometimes incur costs that are completely disproportionate to the usual costs in their contracts. In a monograph that has recently been published by Mohr Siebeck, Eckart Bueren examines these and other cases of “atypical usage” and subsequent bill shock. He discusses the legal system’s regulatory and civil law responses to the bill shock problem, and critically examines Geman civil courts’ case law from a doctrinal, comparative and economic perspective.

 

In terms of regulation, the European Union has taken various measures to enhance price transparency, strengthen competition, contain costs and regulate prices for mobile phone and internet usage through the Universal Service Directive and the Roaming Regulation. Over time, several reforms have tightened these measures. German lawmakers first acted against the abuse of premium rate numbers through the Telecommunications Act. Later they introduced the protective instruments of the Roaming Regulation also for domestic situations of usage. Taken together, the regulatory countermeasures will considerably curb the “classic” problems of bill shock, but will not fully remedy it. The monograph points out important gaps that remain.

 

In terms of private law, German courts have obligated telecommunications service providers to monitor their customers’ usage patterns in real time and to warn customers, and possibly block their connections, as soon as they demonstrate usage that appears “self-damaging”. Eckart Bueren examines this approach from three methodological angles: first, from a doctrinal perspective by considering to what extent the case-law approach can be incorporated into legal doctrine on obligations to warn and inform consumers and by considering to what extent it appears systematically coherent; second, from a comparative law lens, taking Austria, France, Switzerland and the US as examples; and third, under a law-and-economics lens, evaluating new economic research, especially from the US.

 

Based on his findings, Bueren points to alternative solutions to cope with bill shock in German private law, especially the legislation on terms and conditions and Section 138 of the German Civil Code (usury; usurious business practices). He argues that, as far as private law is concerned, these approaches can manage the problems in a more suitable and doctrinally harmonious way where regulation does not prevent bill shocks.

 

Click here for an in-depth interview with Eckart Bueren on bill shock (in German)

 

Bueren, Eckart: Der Rechnungsschock: Hinweispflichten im Bürgerlichen Recht und ihre Grenzen. Rechtsdogmatik, Rechtsvergleichung, Rechtsökonomik. [Bill Shock: Obligations to inform in private law and their limits. Doctrinal, comparative and economic analysis.] – Tübingen: Mohr Siebeck 2018. XV, 182 p. (Studien zum ausländischen und internationalen Privatrecht. 399.)

2018-06-04 – The Principle of Estoppel in Russian Contract Law

Estoppel is a legal principle in common law jurisdictions preventing a party from making assertions or from bringing a particular claim where this would be inconsistent with her previous conduct or statements. This principle has been adopted in the recent reform of the Civil Code of the Russian Federation, and it has been introduced in Russian contract law. In her article “Estoppel in Russian Law”, Dr. habil. Eugenia Kurzynsky-Singer examines how Russian case law has dealt with this legal transplant.


The conceptual foundations of Russian private law, which numbers among the continental legal systems, are fundamentally different from the foundations of common law jurisdictions. As a general rule, this significantly complicates the reception of Anglo-American legal institutions. Nevertheless, it would appear that Russian case law, at least to a certain degree, follows a logic that resembles the English doctrine of estoppel. As described by Eugenia Kurzynsky-Singer, the Russian courts are developing a value-oriented understanding of estoppel and are applying the principle even beyond the relevant provisions of the civil code.

German-Russian Law Review (DRRZ), Vol. 3, No. 2, November 2018, Forthcoming

The article can be accessed at SSRN

Dr. habil. Eugenia Kurzynsky-Singer has since 1 March 2007 been the project leader of the regional unit “Russia and additional CIS Nations” at the Max Planck Institute for Comparative and International Private Law. The unit focuses on those countries that have emerged from the former realm of the Soviet Union, addressing not only the transformation of their civil law regimes but also fostering a legal dialogue with them.

2018-05-02 – Self-regulation in Japanese and German private law

Already in the era of the Hanseatic League, self-regulation was an attractive mechanism that allowed parties to engage in cross-border commerce without state intervention and according to rules of their own design. Today as well, self-regulation is an effective means offering quick and flexible solutions to challenges posed by global trade and technological advances. Now, in a special issue commemorating the 20th anniversary of the “Journal of Japanese Law”, editors Harald Baum, Moritz Bälz and Marc Dernauer, together with an array of internationally renowned private law and business law scholars, examine the importance of self-regulation in Germany and Japan from a comparative perspective.


In Japan, self-regulation is commonly referred to as “soft law” and is, as in Germany, assuming steadily greater importance. The topic has, unsurprisingly, met with increasing attention in international legal scholarship. Nevertheless, the systematic evaluation and comparative assessment of self-regulation in private law scholarship is still in its infant stages. In the current special issue of the Journal of Japanese Law, the authors illuminate the highly complex and multi-faceted phenomenon from both a scholarly and a practice-oriented perspective. The publication brings together for a first time comparative studies on self-regulation from various areas of Japanese and German private law. The commemorative issue assembles the papers and findings presented at the symposium “Self-regulation in Private Law in Japan and Germany”, held in November 2016 at the Max Planck Institute for Comparative and International Private Law.

 

The Journal of Japanese Law (ZJapanR/J.Japan.L.) is presently the world’s only western language publication offering a regular and timely documentation and analysis of the myriad lines of development in Japanese law. Its goal is to make all areas of the Japanese legal system accessible in a comprehensive and methodologically structured manner. Harald Baum, project leader of the Japan Unit at the Max Planck Institute for Comparative and International Private Law, founded the Journal in 1996.

 

Baum, Harald; Bälz, Moritz; Dernauer, Marc (ed.). Self-regulation in Private Law in Japan and Germany. Zeitschrift für Japanisches Recht / Journal of Japanese Law (special edition 10). Carl Heymanns Verlag, Köln 2018.

2018-04-12 – Newly revised GmbH commentary: Volume I released

Edited by Holger Fleischer, Director at the Max Planck Institute for Comparative and International Private Law, together with Wulf Goette, former Presiding Judge at the Federal Court of Justice, Volume I of the Münchener Kommentar zum GmbH-Gesetz (Commentary on the Limited Liabilities Company Act) is the first volume to be released as part of the reference work’s new third edition.


The comprehensive commentary sets out to describe and analyse Germany’s most popular corporate form – presently claiming more than one million companies – in all of its complexity and nuance.

Comprising 2,860 pages, the newly revised Volume I examines the GmbH’s role in international company law and in particular §§ 1-34 of the GmbH Act. The volume commences with an extensive introduction, the first 133 pages of which see Holger Fleischer detail in monographic scope the historical, practical, economic and comparative dimensions of the GmbH – the corporate form that is, alongside culpa in contrahendo, Germany’s most successful civil law export.

Holger Fleischer, Wulf Goette (Eds.), Münchener Kommentar zum GmbH-Gesetz, Vol. 1, 3rd ed., C.H. Beck, München 2018.

2018-04-03 – A call for an end to the practice of innominate grants

The so-called unbenannte Zuwendung (innominate grant) is a term that encompasses numerous property transfers within a marriage or non-marital partnership. Yet this legal concept holds many internal contradictions, as explained by Johannes Liebrecht in his article “Abschied von der unbenannten Zuwendung” (Farewell to the Innominate Grant).


Initially a product of scholarship before being later adopted in case law, the so-called unbenannte Zuwendung (innominate grant) has never been included in the German Civil Code (BGB). However, since its invention in 1970 it has become a conceptual cornerstone within the German law regulating the property regime between spouses and cohabitees. Allegedly, the specific difference between it and donation (§ 516 BGB) is the fact that the granting partner does not fully want to divest himself of the relevant object or amount, and rather plans to be still able to use and benefit from it. Because of this he is considered to not really have donated the property or asset to his partner.

In his article, Johannes Liebrecht demonstrates that the concept cannot be viewed as an example of efficient doctrinal development. Neither does the innominate grant take account of all the existing interests nor does it yield any benefits in terms of ensuring legal certainty or just outcomes. Instead, it creates an oversupply of concepts for the act of donation without leading to any relevant advantages. Accordingly, the article argues for the abandonment of the concept.

The article is accessible (in German) on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3147751

Priv.-Doz. Dr. Johannes Liebrecht studied law and philosophy at the University of Freiburg. His doctoral dissertation was awarded the Hermann Conring Prize. Johannes Liebrecht has since 2007 been employed at the Institute, since 2013 as a research fellow.

Liebrecht, J. (2017). Abschied von der unbenannten Zuwendung. Archiv für die civilistische Praxis, 217, 886-925.
DOI: 10.1628/000389917X15126389017019

2018-03-29 – Freedom of Contract in the European Single Market

Freedom of contract is fundamental to private and business law. But what role does freedom of contract play in European Union law, and what form does it take in that system? Similarly, how does it affect the shaping and application of private law in the EU and its Member States? Priv.-Doz. Dr. Jan D. Lüttringhaus, research fellow at the Max Planck Institute for Comparative and International Private Law, tackles these questions in his recently published postdoctoral thesis.


EU private law plays a growing role in shaping contract law. European Union law also increasingly determines how contractual private autonomy is ensured and what its boundaries are. In his recently published postdoctoral thesis (Habilitationsschrift), Jan Lüttringhaus thus confronts the EU legal order with the crucial question of private law, asking where freedom of contract stands in the European Union. The aim of this work is to identify a European Union guarantee of freedom of contract, one which can serve both as a unifying model for the currently fragmented EU contract law and as a visible barrier to regulations that reduce freedom. In conducting this analysis, Lüttringhaus adopts a comparative approach, considering Union laws collectively and asking what is intrinsic to EU legislation.

Lüttringhaus’s postdoctoral thesis shows that the EU legal order guarantees contractual private autonomy as a freedom for all people and provides a sophisticated system for substantive freedom of contract: so as to guarantee freedom of contract in a valuable way, EU law draws on both its own instruments as well as Member State legislation in the areas of private law and civil procedure law. Along with comparative observations, the author uses the specific example of German civil law and civil procedure to examine this phenomenon.

Jan D. Lüttringhaus, Vertragsfreiheit und ihre Materialisierung im Europäischen Binnenmarkt – Die Verbürgung und Materialisierung unionaler Vertragsfreiheit im Zusammenspiel von EU-Privatrecht, BGB und ZPO – (Beiträge zum ausländischen und internationalen Privatrecht, 120), [Freedom of Contract in the European Single Market] Siebeck, Tübingen 2018, Habilitation, Universität Hamburg 2017, XXXIV + 684 pages.

2018-03-27 – New edition of the Commentary on the Commercial Code by Baumbach/Hopt

The newly updated 38th edition of the Commentary on the German Commercial Code (Handelsgesetzbuch) has been released by publisher C.H. Beck as part of the Beck’sche Kurz-Kommentare series. The new edition of the reference work was revised by Klaus J. Hopt, Emeritus Director of the Max Planck Institute for Comparative and International Private Law, as well as by Professors – and former Institute fellows – Hanno Merkt, Markus Roth, and Christoph Kumpan.


The Commentary offers a broad survey of business and banking law, providing commentary and case law as regards not only the Commercial Code (HGB) but also associated commercial law legislation and important selected sources, such as Incoterms and Standard Banking Terms and Conditions (AGB-Banken). Updated biennially, the Commentary gives account of the latest case law, current literature and recent statutory changes. The publication is geared to business law scholars and practitioners, with the latest research being presented in a practice-oriented fashion.

Topics incorporated into the new edition include: the revised law on payment services (Zahlungsdiensterecht) of July 2017/January 2018; the law regarding insider- and ad-hoc publicity in connection with the EU Market Abuse Regulation (Insider- und Ad-hoc-Publizitätsrecht der EU-MarktmissbrauchsVO), the Corporate Social Responsibility Implementation Law (CSR-Richtlinie-Umsetzungsgesetz), including important amendments of, inter alia, the HGB Accounting Rules (HGB-Bilanzrecht), the Introductory Act to the German Commercial Code (EGHGB) and the German Securities Trading Act (WpHG); the Second Financial Markets Amendment Act (FiMaNoG); important amendments to the Law on Standard Terms and Conditions (AGB-Recht) and to Standard Banking Terms and Conditions (AGB-Banken); and the new German Freight Forwarders Standard Terms and Conditions (ADSp).

Hopt, K. J., Merkt, H., Roth, M. & Kumpan, C. (2018). Handelsgesetzbuch, Beck'scher Kurz-Kommentar von Baumbach/Hopt. München: C.H. Beck.

2018-01-29 – Panama’s new PIL statute translated and analysed in RabelsZ

In the latest issue of the Rabel Journal of Comparative and International Private Law, Jürgen Samtleben offers an in-depth treatment of the history and content of Panama’s new Code of Private International Law, considering also the relevance of the new law in the Latin American context. Accompanying the article is Samtleben’s annotated German translation of the statute.


The small Republic of Panama is an international finance centre and home to the headquarters of many off-shore companies which benefit from the country’s tax law. Additionally, a considerable volume of foreign assets is administered in private interest foundations and trusts that are subject to special rules. For foreign shipping companies, Panama offers a simple option for registering ships under its flag of convenience.

Given this international interconnection, the legal regulation of conflicts of law is of substantial practical importance. In October 2015, Panama’s new PIL codification took effect, broadly regulating private international law and international civil procedure. Featuring 163 articles, it is the most comprehensive national codification of PIL in all of Latin America.

Dr. Jürgen Samtleben, head of the Latin America Unit at the Max Planck Institute for Comparative and Private International Law from 1971 to 2002, has now undertaken to create a German translation of the code, which is published in Issue 82 (2018) of the Rabel Journal of Comparative and International Private Law (RabelsZ). In order to better understand the Code and the “unconventional structure” identified by Samtleben, he has also authored a detailed article that explores the development of private international law in Panama and Latin America and that examines the individual rules. The article, titled “Internationales Privatrecht in Panama – eine neue Kodifikation in Lateinamerika” (Private International Law in Panama – A new codification in Latin America) appears in the same RabelsZ issue.


Samtleben, J. (2018). Internationales Privatrecht in Panama – eine neue Kodifikation in Lateinamerika. Rabels Zeitschrift für ausländisches und internationales Privatrecht, 82, 52-135.
DOI: https://doi.org/10.1628/003372518X15117807093838  

Übersetzung: Panama, Gesetzbuch des Internationalen Privatrechts vom 7. Oktober 2015. (2018). Rabels Zeitschrift für ausländisches und internationales Privatrecht, 82, 136-172.
DOI: https://doi.org/10.1628/003372518X15117807093847


About RabelsZ

Since its establishment in 1927, the Rabel Journal of Comparative and International Private Law has pursued theoretical as well as practical goals. Through the exploration of foreign law and research, it serves as a forum promoting international scholarly dialogue and academic exchange. At the same time, it serves as an aid to legislators by considering experiences beyond Germany’s borders, and it strives to address the questions arising with the increasing unification of laws through international treaties.

2018-01-22 – The Use of Bitcoins in Japan – One of many topics considered in the latest issue of the Journal of Japanese Law

The current issue of the Journal of Japanese Law includes papers presented at the 2017 symposium on Japanese law that was held at the Max Planck Institute for Private Law under the guidance of Harald Baum.


The first part of the 44/2017 of the Journal is a special section dedicated to the symposium on current developments in Japanese law that was held in March 2017: Souichirou Kozuka addresses in his article the 2016 regulations governing the use of Bitcoins as well as legal amendments regarding the utilisation of credit cards. Satoshi Nakaide continues on to analyse the effects of the recent reform of the Insurance Business Act on insurance practice in Japan. The role of specialised courts in Germany and their functional equivalent in Japan, which have since 1945 exercised jurisdiction on a uniform basis, is then explored by Yoshinori Shimamoto.

 

Among the scholarly articles making up the second section of the Journal, of particular note is the submission by Tomoaki Kurishima. He offers a comprehensive analysis of the Japanese Supreme Court’s dual function, its being on one hand a constitutional court and, on the other, an appellate instance reviewing decisions of lower courts. In addition, he discusses the Court’s further role as the bureaucratic body having key responsibilities in the self-administration of the Japanese judiciary.

 

The Journal is presently the world’s only western language publication offering a regular and timely documentation and analysis of the myriad lines of development in Japanese law. Prof. Dr. Harald Baum, project leader of the Japan Unit at the Max Planck Institute for Comparative and International Private Law, founded the Journal in 1996. Since 2004 the J.Japan.L has been published by the Hamburg Max Planck Institute in cooperation with the German-Japanese Association of Jurists.


Contents of Issue 44/2017:

Symposium

Editorial Board: Modernization of Payment Systems Law in Japan, Effects of the Revised Japanese Insurance Business Act, Family Law in Asia, Specialized Courts in Germany and Japan
Souichirou Kozuka: Modernization of Payment Systems Law in Japan
Satoshi Nakaide: Revision of the Japanese Insurance Business Act in 2014. Insurance Distribution Channels in Japan and New Rules on the Solicitation of Insurance
Yoshinori Shimamoto: Spezialisierte Gerichte in Japan und Deutschland

Articles
Harald Baum, Hideki Kanda: Financial Markets Regulation in Japan
Mika Aotake, Gabriele Koziol: Überblick über den Zwischenentwurf von 2016 zur Reform des Erbrechts in Japan
Tomoaki Kurishima: Die Janusköpfigkeit des OGH als Revisions- und Verfassungsgericht. Gegenwartsprobleme und Zukunftsperspektiven
Ulrich Kirchhoff, Tobias Schiebe: The Reform of the Japanese Act on Protection of Personal Information. From the Practitioner’s Perspective
Kazushige Doi: Das Tierschutzrecht in Japan. Ein Vergleich mit dem deutschen Recht und dem Modellgesetz des World Animal Net

Case Law
Gabriele Koziol
: Überblick über wichtige zivilrechtliche Entscheidungen des japanischen Obersten Gerichtshofs aus dem Jahre 2016
Atsuhiro Furuta: Markenrecht: „FURANKU MIURA“
James C. Fisher: The Curious Case of the Criminal Tattooist. Japanese Criminal Law in Action

Reviews
Knut B. Pißler: BURKHARD HESS / KLAUS J. HOPT / ULRICH SIEBER / CHRISTIAN STARCK (Hrsg.), Unternehmen im globalen Umfeld James
C. Fisher: DOUGLAS HOWLAND, International Law and Japanese Sovereignty
Harald Baum: Drei Neue Sammelbände zum japanischen Recht
Harald Baum: MARKUS THIER, Das japanische Insiderrecht

Reports
Katharina Doll: Die Rolle der Sondervoten in Entscheidungen des Obersten Gerichtshofs Japans. Universität Augsburg, 20. Februar 2017
Judith Janna Märtens, Ulf Märtens: Grundrechtsschutz in der Rechtspraxis und -dogmatik. Aspekte aus dem europäischen und asiatischen Verfassungs-, Zivil- und Strafrecht, 24.–26. März 2017, Ritsumeikan Universität, Kyōto

Current Matters
New Books

2017
2017-12-01 – Independent Directors in Asia

As recently as two decades ago, independent directors were oddities in Asia’s boardrooms. Today they are ubiquitous. The rise of the independent director in Asia is an issue of global consequence that has, until recently, largely been overlooked. Now, in the recently published book “Independent Directors in Asia”, Harald Baum, head of the Japan Unit at the Max Planck Institute for Comparative and International Private Law, together with Luke Nottage and Dan W. Puchniak, analyze this phenomenon for the first time, adopting an array of academic perspectives.

 

The increasing influence of the Asian economic region is palpable. In 2020 it is expected that three of the world’s four largest economies will come from Asia. What role has been played by independent directors in this development? How and when are the employed? In “Independent Directors in Asia”, Harald Baum from the MPI for Private Law, Luke Nottage from the University of Sydney and Dan. W. Puchniak from the National University of Singapore analyze this phenomenon in tandem with additional experts from the studied jurisdictions. “Independent Directors in Asia” provides in-depth historical, contextual and comparative perspectives on the law and practice of independent directors in seven core Asian jurisdictions (Japan, Korea, China, Hong Kong, Taiwan, Singapore and India) as well as in Australia.

 

The legal systems examined in the book show that the US concept of “independent director” does not conform with the Asian notion. Rather, the institution of independent directors has developed in a highly diverse and varied manner. The particular economic and political context into which the institution has been integrated reveals itself as a decisive factor in its design. This finding runs counter to the frequently articulated claim of an across-the-board global harmonization of company law. The taxonomy created by the authors categorizing the various functions of independent directors in Asia will provide new impetus for comparative studies on corporate governance as well as for future reforms.

 

Dan W. Puchniak, Harald Baum, Luke Nottage (Eds.), Independent Directors in Asia, Cambridge University Press 2017, 619 pages.

For more information see page ”The Rise of Asian Economic Power. A Question of Corporate Management?“

2017-11-28 – New publication: Law of Family Firms

Family firms are a unique specimen. In them we witness the intersection of three social institutions – family, private property and private enterprise – with a variety of underlying values as well as expectations regarding social roles. This places considerable demands on the statutory framework as it entails various levels of regulation.

 

A new conference volume edited by Institute director Holger Fleischer together with Susanne Kalss (Vienna University of Economics and Business) and Hans-Ueli Vogt (University of Zürich) is dedicated to company law and capital market law problems associated with family-owned companies. The published articles stem from papers and discussions at the Seventh German-Austrian-Swiss Symposium on Company and Capital Market Law, held in Zurich.

 


Summary of contents (translated from original German):

Susanne Kalss: Alternative Types of Business Organisation in Family Firms
Jan Lieder: Alternative Types of Business Organisation for Family Firms
Hans-Ueli Vogt: Discussion

 

Katharina Mengers / Stefan Prigge: The Family Constitution from an Economic Perspective
Holger Fleischer: The Mystery of Family Constitutions: Findings – Regulatory Nature – Legal Effects
Hans-Ueli Vogt: Discussion

 

Martin Oppitz: Listed Family Companies and Capital Market Compliance
Dirk A. Zetzsche: Family Offices and Family Assets: Between Law and Regulation
Hans-Ueli Vogt: Discussion

 

Eveline Artmann: Managing Shareholder Issues in Family Companies
Christoph B. Bühler: Managing Shareholder Issues in Swiss Family Companies
Hans-Ueli Vogt: Discussion

 

Martin Schauer: Legal Questions regarding Generational Transfer in Family Firms
Francesco A. Schurr: Legal Questions regarding Generational Transfer in Family Firms
Hans-Ueli Vogt: Discussion

Hans-Ueli Vogt/Holger Fleischer/Susanne Kalss (Eds.), Recht der Familiengesellschaften. Mohr Siebeck, Tübingen 2017, 302 page (in German).

2017-11-02 – Encyclopedia of Private International Law published

4 volumes, 247 substantive entries, 80 national reports, nearly 180 authors from 57 countries, more than 4,000 pages: these are the impressive figures associated with the recently released Encyclopedia of Private International Law, a work edited by Jürgen Basedow, Emeritus Director of the Institute, together with Giesela Rühl (Friedrich-Schiller-Universität Jena), Franco Ferrari (New York University School of Law) and Pedro de Miguel Asensio (Universidad Complutense Madrid). The Encyclopedia maps the current state of private international law in more than 80 countries, providing unique insights on how the discipline has been affected by the advance of globalization in recent decades. Additionally, the work examines recent strands of reseach discussed in academia and considers the interplay with related fields such as international tax law and international social law. It has been released in both a print and an online version.


The four-volume Encyclopedia of Private International Law combines subject-specific entries and country-specific reports as well as legislative materials in a unique format. The first two volumes contain 247 entries in alphabetic order setting out concepts, terms, sub-fields, methods, institutions and biographies of the most important scholars in the field of private international law. Topics considered include adjudicatory jurisdiction, the applicable law, recognition and enforcement of foreign judgments, and other problems associated with cross-border legal cooperation. The third volume offers a comprehensive overview and insightful findings regarding PIL legislation in more than 80 countries, in some cases representing the first treatment of this legislation in a Western language. In the fourth volume there are English translations of national PIL statutes and codes in the examined countries. This unique combination facilitates comprehensive research by users and establishes the Encyclopedia of Private International Law as an important global reference work for both scholars and practitioners.

“Owing to the advance of globalisation, private international has witnessed a vast increase in importance,” explains Jürgen Basedow, Emeritus Director of the Max Planck Institute for Comparative and International Private Law. “Legislative activity has steadily and continually grown at the national, international and – above all – European level. With the Encyclopedia of Private International Law we now have a reference work that explores these developments not only thematically but also from a country-specific perspective; the result is a work unique in the globe’s literature on the subject.”

The 180 authors of the Encylopedia number amongst the world’s leading scholars in the field of private international law. They include numerous current and former Institute research associates.


Jürgen Basedow, Giesela Rühl, Franco Ferrari, Pedro Alberto de Miguel Asensio (Eds.), Encyclopedia of Private International Law, Elgar, Cheltenham 2017, 4033 pages

DOI: https://doi.org/10.4337/9781782547235

For more information see page ”Encyclopedia of Private International Law“.

2017-09-20 – The recognition of private divorces in Germany

A recent opinion of CJEU Advocate General Saugmandsgaard Øe makes reference to an article on Islamically inspired divorce law that was published by Dr. Lena-Maria Möller, research fellow at the Max Planck Institute for Comparative and International Private Law. The Court of Justice case considered, in particular, whether private divorces fall under the Rome III Regulation.


The pending CJEU ruling relates to a married couple, resident in Germany, who each possess German as well as Syrian citizenship. In 2013, the husband expressed his desire to divorce. Subsequently, his representative pronounced the required formula in front of the Syrian family court having jurisdiction over Muslim family law matters. Thereafter the husband filed in Germany for recognition of the ruling. Making reference to EU law, the Higher Regional Court of Munich (Oberlandesgericht München) granted the request. When his wife then contested this ruling, the Munich court referred the matter to the Court of Justice for a preliminary ruling.

In the view of CJEU Advocate General Saugmandsgaard Øe, private divorces, i.e. dissolutions of marriage that are based on a unilateral declaration of a single spouse, do not fall within the scope of the Rome III Regulation. Even if they should fall under Rome III, he concludes that such a marriage cannot be recognized and granted legal effect under the Regulation in a case where the relevant foreign law is discriminatory. However, whereas Saugmandsgaard Øe argues that the question whether a foreign law provides discriminatory access is to be assessed in the abstract and not specifically under the circumstances of the case, he is careful to point out that this does not mean that Islamically inspired legal systems must generally be excluded as discriminatory. In reaching this conclusion, the opinion explicitly refers to Lena Maria Möller’s comparative analysis considering the question of equal access to divorce in various national family law regimes within Islamic countries.

In the article “No Fear of Ṭalāq: A Reconsideration of Muslim Divorce Laws in Light of the Rome III Regulation”, Lena Maria Möller considers the compatibility of the divorce law in Islamic countries with the prohibition against discrimination as embodied in Article 10 of the Rome III Regulation. While noting that many Islamically inspired legal jurisdictions have a system of divorce featuring gender-specific divorce mechanisms, Möller finds – upon closer inspection of the procedural rules and the consequences associate with divorce – that it is increasingly the case that men and women are, in end effect, granted equal access to divorce. The article cautions against viewing Islamic divorce law as a uniform collection of religious rules and instead urges that more attention be paid to the sometimes substantial differences between individual national legal systems.

Lena-Maria Möller

 

Möller, L.-M. (2014), No Fear of Ṭalāq: A Reconsideration of Muslim Divorce Laws in Light of the Rome III Regulation. Journal of Private International Law, 10(3), 461-487.

doi:10.5235/17441048.10.3.461.





 

2017-08-29 – Corporate Social Responsibility

A legal assessment

 

Beginning in 2017, capital market oriented companies will face an obligation to more earnestly address non-financial aspects of their business activities. Specifically, a “corporate social responsibility reporting duty” has been adopted with the aim of creating greater transparency in the environmental and social aspects of business in the EU. For Prof. Dr. h.c. Holger Fleischer, this reporting duty stands as only a first small step towards the anchoring of the CSR concept in company law. In his most recently published article, “Corporate Social Responsibility – Vermessung eines Forschungsgebiets aus rechtlicher Sicht” [Corporate Social Responsibility – A Legal Assessment], he thus takes inventory of the current situation and explores future paths of development. In the view of Holger Fleischer, legal scholars are obliged to contribute – critically and precisely – to the formulation of future reform proposals and they should not, by contrast, leave this interdisciplinary inquiry solely to economists and sociologists.

 

In his article, Holger Fleischer focuses on the corporate and economic foundations of CSR and reviews and categorizes various strands of development and areas of discussion. In doing so he concentrates primarily on the corporate-, accounting- and capital market law aspects of this interdisciplinary field, while being careful at the same time to not lose sight of its economic underpinnings.

 

Professor Fleischer finds it particularly important to put the current discussion into its larger historical and international context. Thus, for instance, he examines the traditional framework of the common good postulate (Gemeinwohlpostulat) in Germany and compares this with international developments.

 

In concluding, Professor Fleischer turns his gaze to the “corporate law crystal ball” and considers proposals found in- and outside Germany that aim to more strongly anchor the CSR concept in corporate and accounting law.

 

Corporate Social Responsibility – Vermessung eines Forschungsfeldes aus rechtlicher Sicht, Die Aktiengesellschaft 62 (2017), 509 - 525.

2017-06-19 – The growing importance of family constitutions

A mere statement of intentions or a text carrying legal relevance?

An increasing number of family businesses are memorializing their shared values in family constitutions. Until now, such texts have not been attributed any legal relevance. Rather, they are seen as little more than declarations of intent, a blunt sword having negligible impact on a subsequent internal dispute. The present article, however, sees Institute Director Prof. Holger Fleischer challenge this view.


Disputes among the members of a family business will not infrequently threaten the complete breakup of an enterprise previously built over many generations. Against this background, family constitutions (or family charters) find increased popularity. These documents allow family businesses to set out their shared values and to formulate approaches for dealing with potential conflicts.

The extent to which a family constitution can project a legal effect is, unsurprisingly, a question of particular interest for legal scholars. Particularly in business management literature, the dominant view is that a family constitution holds no legal effect, its being instead merely a statement of intent. Yet Institute Director Holger Fleischer believes it appropriate to study the question further before too hastily endorsing this view.

“If one expands the inquiry beyond the Familienverfassungen (family constitutions) found in Germany so as to consider the family constitutions as encountered in the USA, the family charters found in Belgium and the family protocols of Spain, then it quickly becomes apparent that family constitutions are an international phenomenon,” explains Holger Fleischer. Compared internationally, the instruments do not measure equally on a legal scale, their ranging from being quasi-contracts, listings of moral obligations and mission statements. It is thus inaccurate to speak of “the” family constitution as if it were a monotonic instrument. Accordingly, Professor Fleischer argues that family constitutions cannot be neatly fit into a uniformly sized legal box and it would be overly narrow to describe them as simply statements of intentions.

Then what of the family constitution as found in Germany? Is it only a blunt sword, or can its blade strike legally consequential blows? Holger Fleischer comes to the conclusion that family constitutions are by all means legally significant: “The family constitution can, among other uses, be drawn upon for the supplemental interpretation of articles of association and thereby realize a legal impact.” For instance, where the articles use the word “child” without providing a definition, and a dispute subsequently arises as to whether adopted children stand on the same footing as biological children, the family constitution can come into play. If the text offers a hint as to the term’s meaning – or, further still, provides a relevant definition – then this fact can hardly be ignored. Holger Fleischer is similarly of the opinion that the repeated application of individual provisions might, after a number of years, serve to implicitly amend the articles of association.

Just what effects these and other findings will have on the success story known as family constitutions remains to be seen. Will family constitutions, as sharp-edged swords, be able to play a more prominent role in forestalling disputes within a family business? It is a topic worthy of empirical study and one that should be subject to scholarly analysis.

For a more detailed discussion of the article (in German): Die Familienverfassung: Vertrag ohne Schwert?

Bibliographical reference: Holger Fleischer, Das Rätsel Familienverfassung: Realbefund – Regelungsnatur – Rechtswirkungen, Zeitschrift für Wirtschaftsrecht 37, 32 (2016), 1509 - 1519.

 

2017-06-02 – Research Group launches information portal on Syrian family law

In a project conducted with the participation of refugee lawyers from Syria, the Research Group “Changes in God’s Law” has created a systematic overview of Syrian family law. The initial results of this effort are now available at the website www.familienrecht-in-syrien.de.


Under the leadership of Priv.-Doz. Dr. Nadjma Yassari, the project on Syrian family law has examined a variety of questions: Can a religious marriage be recognized in Germany? How are marriages concluded in Syria and what official documents record them? How should other documents evidencing a marriage be evaluated? It is often the case that family law relationships valid in Syria are unknown to German law. Owing to the expertise of Syrian lawyers who worked on the project as interns at the Institute, it has been possible to create an extensive summary of Syrian marriage law that considers not only the “law in the books” but also the “law in action”.

The newly launched website resulting from the project offers an overview of the various types of Syrian marriage documents and includes a glossary explaining the most important terms in Syrian marriage law. Additional key features of the information portal are the new translations of statutes having family law relevance and abstracts of German court rulings addressing Syrian family law in its national and international dimensions.

The information portal is geared especially toward judges, civil registrar officials and other institutions that, as a result of the influx of refugees from Syria, regularly face questions on the currently governing law in Syria. In family reunification proceedings, for instance, such questions are recurrent.

The project led by Priv.-Doz. Dr. Nadjma Yassari is being financially supported by the Federal Ministry of Justice and Consumer Protection. In its next stages the project plans to review parental care law in Syria and to expand so as to incorporate Iraqi family law.

The website can be accessed at www.familienrecht-in-syrien.de or www.famsyr.de.

2017-04-20 – “Parental Care and the Best Interests of the Child in Muslim Countries” published

The recently published book “Parental Care and the Best Interests of the Child in Muslim Countries” is the first publication to provide a comparative and cross-national analysis of parental care regimes in Islamic countries.


The book is edited by Priv.-Doz. Dr. Nadjma Yassari, director of the research group “Changes in God’s Law: An Inner-Islamic Comparison of Family and Succession Laws” at the Max Planck Institute for Comparative and International Private Law, together with Dr. Lena-Maria Möller, a senior research fellow in the same research group, and Dr. Imen Gallala-Arndt of the Max Planck Institute for Social Anthropology. It compiles the results of a workshop on parental care held by the research group together with legal and Islamic studies scholars in Rabat, Morocco in April 2015.

Drawing on the example of ten Islamic countries – from Indonesia to Morocco – the volume analyses the emergence and evolution of the notion of the best interests of the child and investigates the question of whether and to what extent international conventions on the rights of the child have impacted the development of parental care regimes in Islamic countries. In particular, it examines the prevailing legal norms, both substantive and procedural. Special attention is also given to legal practice and the role of the judiciary. In addition to the country reports, the book also includes two comparative analyses on questions of parental care in both public and private international law.

With its up-to-date assessment of parental care regimes in Islamic countries, which extends far beyond a pure analysis of statutory law, the book is of high practical relevance for legal practitioners working in the area of cross-border custody disputes.

The book is available as a print edition or online at:
http://link.springer.com/book/10.1007/978-94-6265-174-6

Nadjma Yassari, Lena-Maria Möller, Imen Gallala-Arndt (eds.), Parental Care and the Best Interests of the Child in Muslim Countries, Asser Press, Den Haag 2017, XVIII + 353 pp.

2017-04-06 – Handbook on takeover law published

Since the 2002 adoption of the Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz (WpÜG)), the law on takeovers has rapidly evolved in Germany. The area represents a regulatory field which is exceptionally dynamic, highly complex and international in nature. In the newly published handbook edited by Holger Fleischer, Director at the Max Planck Institute for Comparative and International Private Law, and attorney Dr. Nikolaos Paschos, LL.M., the state of development is documented and evaluated. Further, the voluminous work, totaling more than 1,150 pages, formulates proposals for future advancements in the field.


Divided into 31 chapters, the topic is comprehensively addressed from both practice- and scholarship-oriented perspectives by lawyers, professors and regulatory officials. The work considers a full array of questions from the viewpoint of bidders as well as target companies. Special attention is paid to tactical considerations that are essential in the planning and execution of takeovers. This is particularly true in respect of hostile takeovers, i.e. takeover bids extended against the will of the target company’s management.

Spanning more than 100 pages, the introductory chapters (§§ 1 – 3) have been authored by Holger Fleischer. In § 1 he traces the lines of development of German and European takeover law. He explains how companies, supervisory agencies and court rulings have gradually breathed life into the new regulatory framework, with the result that a market practice, an administrative practice and a court practice have been able to take shape in key areas. A particular focus of the discussion is the enormous practical importance of the Federal Financial Supervisory Authority (BaFin), which acts as a gatekeeper and owing to its wealth of experience can exercise a unique topic-specific competence (Autorität der Sachnähe). As a public policy suggestion, it is pointed out that BaFin might be able to comprehensively set out its administrative practice after the model of issuer guidelines (Emittentenleitfadens).

§ 2 makes clear that the WpÜG is conceptually a part of capital markets law but nevertheless manifests a variety of connections to neighbouring regulatory fields. Thus the chapter focuses on how the WpÜG intersects with stock law, the law on groups of companies, transformation law (Umwandlungsrecht) and competition law. The chapter explains, for example, how the WpÜG’s provisions on listed companies overlap stock law. Key notions here include improving minority rights, proceduralising rules of conduct and changing structural hierarchies. Based on these ideas, takeover law rules are more closely examined from a group law perspective. Serving as a functional link in this context is the mandatory bid: originally derived from English capital markets law, mandatory bids are suited to bridging the different European traditions lying at the intersection of capital markets law and group law. The chapter also addresses the competition law relevance of rules on takeovers and mandatory bids, looking further at the practical coordination of these two regulatory areas by means of a “cartel reservation” (Kartellvorbehalt) in the bid conditions.

In § 3 Holger Fleischer and Eckart Bueren, senior research fellow at the Max Planck Institute for Comparative and International Private Law, draw upon extensive numerical data to analyse the economic and law-and-economics foundations of takeover law. They describe how M&A transactions appear nationally and internationally in oscillating cycles. In explaining these large waves of takeovers, economic scholarship relies in part on neo-classical theory and in part on behavioral economics. With this in mind, the chapter’s two authors present the explanations and motives for takeovers from the perspective of the company as well as that of management. Familiar concepts here include empire building, the hubris hypothesis and the winner’s curse. Finally, in an extensive law and economics section there is a corresponding assessment of individual elements of the WpÜG.

Nikolaos Paschos, Holger Fleischer (eds.), Handbuch Übernahmerecht nach dem WpÜG, C.H. Beck, München 2017, LVIII + 1176 pp.

2017-03-17 – Legal consequences of the draft legislation on child marriage

The German government’s proposed legislation on child marriage represents a 180 degree turn in current legal practice. The new procedure would force family courts to adopt new procedures and at the same time challenge a pillar of private international law.

In an attempt to combat child marriage, the German government has prepared draft legislation that, among other aspects, foresees the non-recognition of marriages concluded outside of Germany prior to the sixteenth birthday of one of the participants. Further, where a minor between the ages of sixteen and eighteen is a party to a marriage, the marriage will be recognised only if a hardship inquiry establishes that the married couple’s separation would have severe negative consequences. This approach constitutes a significant departure from current practice as regards marriages involving minors.

Institute Director Jürgen Basedow views the development critically: “The political initiative for setting a rigid minimum age is – at least on its surface – premised on the desire to help underage females who have married outside of Germany’s borders. The underlying assumption is that the non-recognition of the minor’s marriage will always be of assistance. This overlooks many realities: In many instances the under-aged wife does not desire such assistance; for many young women marriage represents a recognition of their adulthood within their particular social setting. The rigid setting of a minimum age is no less problematic for minor wives who are pregnant or who have already given birth to a child at the point in time when the marriage is to be revoked. Consequently, it is not only the child who has to suffer the stigma of illegitimacy in his or her Islamically influenced community but also the minor mother; thus, what was envisaged as protection for young women inflicts further harm instead.”

Until now, marriages involving minors, particularly those concluded before one of the spouse’s sixteenth birthday, were subject to an individual assessment in which the competent family court would – with reference to the rules of private international law – examine whether a marriage performed outside of Germany was lawfully concluded. Such a determination would also consider (i) whether the marriage was consistent with ordre public, i.e. German public policy, and (ii) what specific circumstances surrounded the marriage involving the minor. In total, the inquiry is a lengthy process which in the end yields a decision on the recognition or non-recognition of the marriage. Under the proposed legislation, however, private international law would be modified so as to more firmly reflect values inherent in Germany’s law on marriage.

For instance, a seventeen-year-old who married in Syria three years earlier at the age of fourteen and then subsequently fled the country with her husband and children, ultimately arriving in Germany, would no longer be deemed married in Germany. She would be treated as an unaccompanied minor refugee; potentially she would be prevented from living with her husband and would ineligible to inherit from him or receive maintenance. A marriage involving a now seventeen-year-old wife, who married at the age of sixteen in Syria, could, at the initiation of the youth welfare office, be revoked unless she and her husband established that such a revocation would present a severe hardship. In each of these two cases, the individual assessment occurring under the current law would perhaps yield a different outcome.

At the legal level, the draft legislation combatting child marriage alters established assumptions of private international law (PIL). Whereas previously all legal systems were considered equal, the currently proposed legislation charts a new course. For Lena-Maria Möller, research fellow at the Institute, this raises concerns: “The fundamental starting point of PIL is the equivalence of legal systems. Rather than making an abstract attempt to identify the best law, PIL aims to apply the law which has the closest connection to the case at hand. The new approach, however, appears to take a step in the direction of abstract differentiation between good and bad laws, disregarding in the process the particular facts of the case.”

Even if the proposed legislation’s specified transition periods and exceptions result in a more differentiated assessment of child marriages than would presently seem to be foretold, the legislation would nevertheless subject the affected parties to an inflexible process offering little leeway for life circumstances, cultural identity, and personal decisions – unlike the individual assessment approach currently in force.

Interview with Institute Director Jürgen Basedow – The Draft Legislation on Child Marriage and Private International Law (PDF version of interview)

Further information, public comments and the original version of the proposed legislation can be found at the following link:

http://www.famrz.de/aktuelles/pressemitteilungen/2017/02/pm-gesetzentwurf-zur-bekaempfung-von-kinderehen.php

2017-02-23 – “Legislators, Judges, and Professors” published

How do judges, legislators and professors shape the law of the countries in which they operate? On what methods do they rely in attempting to develop the laws of these countries? These fundamental questions were at the centre of the symposium entitled “Legislators, Judges, and Professors” held at the Max Planck Institute for Comparative and International Private Law in November 2015. The recently published collection of essays under the same title assembles the papers presented on the occasion.


The volume has been edited by the Directors of the Max Planck Institute for Comparative and International Private Law, Jürgen Basedow, Holger Fleischer and Reinhard Zimmermann. The lectures were presented, and the subsequent essays were written by colleagues from different countries around the world (Japan, Turkey, Russia, England, Argentina, France, South Africa, Switzerland and the USA) in order to cast a spotlight on law-making, judicial decision-making and legal methodology in their respective jurisdictions.

The symposium demonstrated to what extent even the concept of a legal methodology differs internationally. Differences are not confined to the typical common law/civil law divide but exist equally among the legal systems in the civilian tradition.

The symposium was held in cooperation with Association Internationale des Sciences Juridiques and the Gesellschaft für Rechtsvergleichung. With the publication of “Legislators, Judges, and Professors”, the Institute continues its recent line of comparative studies investigating questions of legal methodology.

Jürgen Basedow, Holger Fleischer, Reinhard Zimmermann (eds.), Legislators, Judges, and Professors, Mohr Siebeck, Tübingen 2016, XIII + 249 pp.

2017-02-10 – BREXIT and company law

British Prime Minister Theresa May has cleared the next hurdle on the path towards exit from the EU: the lower house of Parliament has voted in favour of the BREXIT Bill, authorising the prime minister to commence exit talks with the EU. In the keynote speech she delivered in January, May had already made clear that she sought a clean break with the EU. But what are the implications of BREXIT for EU entrepreneurs who established their firms in Great Britain? Holger Fleischer, managing director at the Max Planck Institute for Comparative and International Private Law, tackles this question together with a trio of colleagues in the article "Brexit and Corporate Citizenship".


BREXIT will have significant consequences for EU citizens living in Great Britain, but it will also profoundly affect legal persons. What future, for example, awaits corporations that were founded by EU residents under English law? For these entities, the situation is likely to change fundamentally. Until now, German enterprises could rely upon the freedom of establishment as affirmed under a 1999 CJEU ruling, with the result that thousands of firms have incorporated as an English limited company in connection with domestically conducted business activities. What will the repercussions of BREXIT be for these companies? Will the directors face personal liability for the debts of the limited company? These questions and other company law implications under BREXIT are analysed by John Armour (Oxford), Holger Fleischer (MPI Hamburg), Vanessa Knapp (London) and Martin Winner (Vienna) in a jointly authored contribution.

The article "Brexit and Corporate Citizenship" will be printed in EBOR 2017, Issue 2. A working paper is available at http://ssrn.com/abstract=2897419.

2017-01-24 – “German and Asian Perspectives on Company Law” published

The edited collection “German and Asian Perspectives on Company Law” offers a broad comparative analysis of foundational company law topics in Germany, China, Japan and South Korea. The recently published Mohr Siebeck volume, co-edited by Institute Director Holger Fleischer, stems from a May 2015 symposium held at the Max Planck Institute for Comparative and International Private Law.

 

With reference to the countries of Germany, China, Japan and South Korea, the edited collection examines questions regarding director liability, capital maintenance, the role of shareholders in listed companies and groups of companies. The introductory chapter of the work comprises articles by Hideki Kanda, offering an overview of Japanese company law, and Holger Fleischer, who discusses the distinctive characteristics of German company law.

 

Through the volume and the accompanying academic exchange, the editors (Holger Fleischer, Hideki Kanda, Kon-Sik Kim and Peter Mülbert) aim to breathe new life into the traditionally close relationship shared by Germany and Asia in the fields of commercial and company law. In March 2016 a follow-up symposium was held in Tokyo; a second conference volume is currently in preparation.

 

Fleischer, Hideki Kanda, Kon Sik Kim, Peter Mülbert (eds.), German and Asian Perspectives on Company Law. Law and Policy Perspectives, Mohr Siebeck, München 2016, XI + 377 pages

 

Contents: 

Introduction
Hideki Kanda: A Brief Guide to Japanese Company Law – Holger Fleischer: A Guide to German Company Law for International Lawyers. Distinctive Features, Particularities, Idiosyncrasies

I. Directors' Liability
Kenichi Osugi: Directors' Liability and Enforcement Mechanisms in Japan – Kyung-Hoon Chun: Corporate Opportunity Doctrine as a Basis for Directors' Liability. A New Statutory Experiment in Korea – Jianbo Lou: Ordinary Corporate Conduct Standard vs. Business Judgment Rule. A Review of Case Rulings by Beijing Courts between 2005 and 2014 – Hans Christoph Grigoleit: Directors' Liability and Enforcement Mechanisms from the German Perspective. General Structure and Key Issues

II. Capital Maintenance
Gen Goto: Legal Capital in Japan and the Influence of German Law – Andreas Cahn: Capital Maintenance – Ruoying Chen: From Legal Capital to Subscribed Capital. Capital Rule in China and its Economic Background

III. The Role of Shareholders
Gerald Spindler: The Role of Shareholders in Public Companies – Kon Sik Kim/Moon-Hee Choi: Declining Relevance of Lawsuits on the Validity of Shareholder Resolution in Korea. A Comparative Essay – Hiroyuki Kansaku: The Role of Shareholders in Public Companies

IV. Groups of Companies
Junhai Liu: Regulation of Corporate Groups in China – Hyeok-Joon Rho: Corporate Groups in Korea. Reconciliation of Individualism with Collectivism – Eiji Takahashi: Recht und Wirklichkeit der verbundenen Unternehmen in Japan – Katja Langenbucher: Do We Need a Law of Corporate Groups?

2017-01-10 – What are the legal implications of BREXIT for China?

In December 2016, Jürgen Basedow, Director of the Max Planck Institute for Comparative and International Private Law participated in a conference on “Legal Implications of BREXIT and its Impact on China” at the China-EU school of Law in Beijing.

 

In his presentation “Brexit and Business Law”, he presented the legal framework surrounding the implementation of BREXIT, and the consequences of BREXIT for European primary and secondary law. The presentation addressed a number of questions: What form will future relationships between the EU and the UK take? What are the consequences of BREXIT for the secondary EU law contained in regulations, directives, and decisions? How can future relationships between the EU and the UK “as a third party state” be structured? In addressing these questions, Basedow gave particular attention to potential implications for China. The article based on the presentation will be published in the up-coming China-EU Law Journal (CELJ) and is already available on SSRN:

 

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2889218

 

The topic of BREXIT remains an important subject of focus for Institute researchers, and in January 2017 the European Group for Private International Law (GEDIP), currently chaired by Institute Director Jürgen Basedow, will be convening at the Institute. The meeting is the result of a September 2016 GEDIP resolution, reached in Milan, to form a commission charged with the task of studying the consequences of BREXIT for private international law and international civil procedure.

2017-01-02 – Online version: Handwörterbuch des Europäischen Privatrechts

A cooperative effort representing the efforts of more than 120 authors, the 2009 Handwörterbuch des Europäischen Privatrechts is the culmination of years of work by scholars at the Max Planck Institute for Comparative and International Private Law and stands as a groundbreaking encyclopaedia of European private law. Now, owing to a special agreement reached with publisher Mohr Siebeck, the content of the German-language Handwörterbuch is globally accessible at no cost in an online version


The emergence of a European private law constitutes one of the most significant developments in the modern legal landscape. But Union legislation has predominantly addressed short-term, individual policy concerns. The body of law that has developed in the last twenty years is fragmentary and does not follow an overarching concept. In response to these developments, the Max Planck Institute for Comparative and International Private Law published the Handwörterbuch des Europäischen Privatrechts in 2009. With its structured keyword entries, the Handwörterbuch creates a foundation for the systematisation of European private law. Considering the historical and comparative dimensions, the keyword entries explore current developments and future harmonisation projects for all areas of private law. In terms of both its scope, its methodology and its systematic approach, the Handwörterbuch remains a unique resource which makes valuable information available to legal scholars and legal practitioners in a condensed and readily accessible format.

The keyword entries accessible in the online version are identical to the printed entries appearing in 2009 and have not been updated. Users should in appropriate cases assess whether the entries take into account more recent legal developments.
 

http://hwb-eup2009.mpipriv.de

2016
2016-10-19 – Second volume of Chinesisches Zivil- und Wirtschaftsrecht published

Knut Benjamin Pißler co-edits the second volume of a core reference work on Chinese civil and commercial law.

 

As business between China and Germany grows, a reliable guide to Chinese civil and commercial law becomes increasingly necessary. To satisfy this need, the head of the China Unit at the Max Planck Institute for Comparative and International Private Law, Knut Benjamin Pißler, together with Jörg Binding from the Beijing office of the Deutschen Gesellschaft für Internationale Zusammenarbeit (GIZ), have supplemented their work Chinesisches Zivil- und Wirtschaftsrecht (Chinese Civil and Commercial Law) with a second volume providing detailed analyses of all relevant areas of commercial law. At the forefront of the volume is corporate law; in addition to reports examining Chinese companies both with and without foreign capital contributions, covered topics also include the purchase of companies. This is followed by coverage of intellectual property law, which is divided into discussions of patent, trademark and copyright law. Further parts are devoted to competition law, financial law, tax law and employment law. The work concludes with a section looking at judicial enforcement.
 
German-Chinese author pairings guarantee an accessible, comprehensive and balanced presentation of the subject matter. The use of Chinese characters underscores the authenticity of the new volume. Extensive literature references and careful footnoting make the work a valuable tool for comparative research.
 
Together, volumes 1 and 2 of Chinesisches Zivil- und Wirtschaftsrecht form an outstanding reference work for German-speaking readers.

 

Jörg Binding, Knut Benjamin Pissler (eds.), Chinesisches Zivil- und Wirtschaftsrecht, Band 2 – Schwerpunkt Wirtschaftsrecht (Wirtschaftsrecht international, China), Deutscher Fachverlag, Frankfurt am Main 2016, XLVIII + 587 pages.
2016-10-17 – "Changing God's Law"

An edited volume based on the international conference “The Dynamics of Legal Development in Islamic Countries”, held in 2013 at the Max Planck Institute for Comparative and International Private Law in Hamburg, has been published by Routledge. The publication edited by Nadjma Yassari shows the various developments within the field of family law that can currently be observed as a result of the social changes taking place in Islamic countries.

 

The volume identifies and elaborates on the significance and functions of the various actors involved in the development of family law in the Middle East. Besides the importance of family law regulations for each individual, family law has become the battleground of political and social contestation. Divided into four parts, the collection presents a general overview and analysis of the development of family law in the region and provides insights into the broader context of family law reform, before offering examples of legal development realised by codification drawn from a selection of Gulf states, Iran, and Egypt. It then goes on to present a thorough analysis of the role of the judiciary in the process of lawmaking, before discussing ways the parties themselves may have shaped and do shape the law.

Nadjma Yassari (ed.), Changing God’s Law – The dynamics of Middle Eastern family law (Islamic Law in Context), Routledge, London/New York 2016, 290 pages.
 

2016-10-05 – "Fritz Kern and the good old law”

In his recently published study, Johannes Liebrecht, research fellow at the Max Planck Institute for Comparative and International Private Law, explores Fritz Kern’s thesis on the nature of the medieval conception of law.

 

For over a century, Fritz Kern’s thesis on the nature of medieval conceptions of law has held that in order to claim validity, earlier law had to be seen as both old and good. Thus, in contrast to today, older law consistently ‘broke’ newer law. Kern’s idea captivated the world of medieval constitutional and legal history studies soon after it was published. This effect was particularly pronounced in the German speaking world, but Kern’s theory of good old law has also emerged elsewhere. Liebrecht’s study neither refutes nor supports his approach, but rather seeks to make the theory itself part of a historiographical analysis. Johannes Liebrecht provides an academic analysis of a range of questions, particularly how and why Kern arrived at this idea, and the role that it played.

 

Johannes Liebrecht, Fritz Kern und das gute alte Recht. Geistesgeschichte als neuer Zugang für die Mediävistik (Studien zur europäischen Rechtsgeschichte, 302), Klostermann, Frankfurt a. M. 2016, VIII + 162 S.

2016-09-14 – Groundbreaking Decisions – Stories from Corporate and Capital Markets Law

Behind every judgment and every significant corporate law ruling there lies a story. It is, however, only seldom that these stories are told. A new research volume edited by Holger Fleischer, Director at the Max Planck Institute for Comparative and International Private Law, aims to demonstrate the value in examining the factual circumstances underlying high court rulings and detailing the stories behind important cases.

 

The recently released volume “Bahnbrechende Entscheidungen – Gesellschafts- und Kapitalmarktrechts-Geschichten” (Groundbreaking Decisions – Stories from Corporate and Capital Markets Law), edited by Institute Director Holger Fleischer together with Susanne Kalss of the Vienna University of Economics and Business and Hans-Ueli Vogt of the University of Zurich, adopts exactly this perspective. The collection documents the presentations and discussions of the sixth Annual Meeting of German, Austrian and Swiss Company and Capital Market Jurists at the University of Vienna in May 2015 and describes the stories behind key company and capital market law rulings.
 
Survey of Contents:
  • Holger Fleischer: Gesellschaftsrechts-Geschichten – eine Annäherung an Theorie und Praxis gesellschaftsrechtlicher Leitentscheidungen  
  • Frauke Wedemann: BGHZ 146, 341: ARGE Weißes Roß – Rechtsfähigkeit der Außen-GbR
  • Martin Winner: Übernahmeangebot bei Verschmelzung? Die Entscheidung HypoVereinsbank / Bank Austria der österreichischen Übernahmekommission
  • Susan Emmenegger: Gleichbehandlung bei konkurrierenden öffentlichen Übernahmeangeboten: Der Entscheid SIC Holding AG
  • Jens Koch: Die ARAG/Garmenbeck-Entscheidung des BGH (BGHZ 135, 244) – Geschichte und Wirkungsgeschichte
  • Stefan Knobloch: Genehmigte und bedingte Kapitalerhöhung – SBG gegen BK Vision AG. Kompetenzverteilung zwischen Generalversammlung und Verwaltungsrat – Unter besonderer Berücksichtigung des Rechtsschutzes
  • Walter Bayer: BGHZ 153, 47 – Macrotron – Die »Geschichte« der Grundsatzentscheidung zum Delisting, ihr überraschendes Ende durch »Frosta« und ihre »modifizierte Wiederbelebung« durch den Gesetzgeber
  • Martin Auer: OGH 4 Ob 2078/96h (Fehringer) – Einlagenrückgewähr mit Dritten
  • Peter V. Kunz: BGE 88 II 98 (1962) – oder: Was der »Zirkus Knie« für die Gleichbehandlung der Aktionäre in der Schweiz bedeutet(e)
  • Jan Thiessen: Sternbrauerei Regensburg (BGHZ 9, 157)
  • Georg Eckert: Die Neutronics-Entscheidung des OGH
 

Susanne Kalss, Holger Fleischer, Hans-Ueli Vogt (Hg.), Bahnbrechende Entscheidungen – Gesellschafts- und Kapitalmarktrechts-Geschichten, Mohr Siebeck, Tübingen 2016, VIII + 238 S. [Published in German].

2016-07-18 – Brexit, Private Law and Commercial Law

“Brexit means Brexit” – the words of new British Prime Minister, Theresa May herald the beginning of the mammoth task of negotiating an exit from the European Union. But unravelling the intricately spun web of EU directives and regulation, national and EU law is not going to be easy. Jürgen Basedow, Director of the Max Planck Institute for Comparative and International Private Law has outlined the challenges that exit poses for private and commercial law in an editorial for Issue 3/2016 of the Zeitschrift für Europäisches Privatrecht.

 

As soon as the UK notifies the European Council of its intent to leave the EU in accordance with Article 50 para. 2 TEU, a two year period shall commence within which all negotiations must be conducted. Should negotiations exceed this two year period or if the outcomes meet resistance in the UK or the EU bodies, Art. 50 para. 3 TEU stipulates that Union Treaties shall simply cease to apply, unless the Council and the UK unanimously agree to extend that period.

 

As sparing as the wording of Art. 50 para. 2 TEU is, it does make it very clear: should the EU and the UK not reach agreement within two years of notification, then the Treaties, including the freedom of movement they contain, cease to be in force. The possibility that access may be lost to the European single market and other guarantees provided by primary EU law puts the UK under economic and political pressure that may weaken their negotiating position against the EU. British voters were probably not aware of this consideration before the referendum.

 

The question of whether and how the international conventions of the EU, particularly those for a uniform system of private law, shall continue to apply is also complex. It may be that conventions like the Montreal Convention for the Unification of Certain Rules for International Carriage by Air or the Cape Town Convention on International Interests in Mobile Equipment and the Aviation Protocol will continue to apply, as they were ratified by both the UK and the EU, although relevant decisions handed down by the ECJ will no longer be binding on the UK courts. But what is the situation with regard to the Hague Jurisdiction Convention of 2005 that was ratified by the EU on behalf of all Member States, but not by the States themselves? These private and procedural law Conventions – just as all other international law agreements of the EU – must also be addressed during the exit negotiations.

 

Any change of Great Britain’s status under the Brussels I Regulation 1215/2012 is also particularly significant for private law. It is for the British courts to decide whether they will continue to observe the rules of jurisdiction. Their judgments however will no longer be automatically enforceable across the whole Union, as Art. 36 only applies to “a judgment given by the courts of a Member State”. Older bilateral agreements such as that existing between Germany and Britain may go some way to bridging the gap, as will the autonomous recognition of laws, but neither will suffice completely. International legal and commercial affairs must thus return to square one. As it currently stands, the Lugano Convention (OJ 2009 L 147) is also unable to cover the shortfall, signed as it was by the EU and not the individual Member States. According to Art. 70, Great Britain is not one of the states entitled to join the Convention. This effectively removes one of the fundamental pillars supporting the remarkable rise in the number of law firms in London, with a business model based on the simple promise that stipulating London in a jurisdiction agreement would guarantee enforceability across the whole of Europe. This model will soon be a thing of the past, if viable solutions cannot be found for the exit agreement.

 

The agenda for the exit negotiations will thus be immensely broad in its scope. Even if the British government should drop EU primary law for the reasons listed above, they will try to include secondary legal guarantees for access to the European single market into their exit agreement. That would require the discussion of hundreds of Directives and Regulations. Considering that the entry negotiations with nine member states, divided into over 30 negotiation chapters, took so many years to complete, it is doubtful whether negotiations in the other direction can be completed within the two years stipulated by Art. 50 para. 3 TEU. Brexit has also shaken up international commercial competition in ways that have yet to be determined.

 

The complete article “Brexit, Private Law and Commercial Law” by Professor Jürgen Basedow will be published in the coming issue 3/2016 of the ZEuP - Zeitschrift für Europäisches Privatrecht.

2016-07-08 – European Union Law, National Private Law, European Private Law

A Festschrift has just been published in honour of legal scholar Arthur Hartkamp by Carla Sieburgh, Professor of Private Law at Raboud University Nijmegen, and Reinhard Zimmermann, Director at the Max Planck Institute for Comparative and International Private Law, featuring texts on the law of the European Union, national laws and European private law.

 

The contributions from 19 European legal scholars provide a range of perspectives to illuminate the development of European private law in conjunction with the national laws of individual European states. These interactions formed the core interest of internationally renowned legal scholar Arthur Hartkamp, who contributed much to the research and development of private law in Europe, and in honour of whom this Festschrift has been published. Arthur Hartkamp lectures as a professor in European private law at the University Nijmegen, and has been the vice-president of UNIDROIT’s Governing Council since 2003. He was also the Procurer-General for the Supreme Court of the Netherlands from 2001-2006.

 

The Festschrift was presented on 11 June by Carla Sieburgh and Reinhard Zimmermann whose contribution traces the connection between the Principles of European Contract Law through to the Draft Common European Sales Law, using the example of extinctive prescription. Co-publisher Carla Sieburgh chose to address “The Attribution of Acts: Towards a Principles Assessment under EU and National Private Law” in her contribution. Jürgen Basedow, Director af the Max Planck Institute for Comparative and International Private Law also contributed, examining the general legal principles developed by the European Court of Justice to address discrimination questions.

 

The 19 high topical contributions in this Festschrift will not be released as a bound volume as is usually the case, but as a special issue of the European Review of Private Law in order to make the results of the research more accessible.

2016-05-23 – Commentary on international succession law published

The centrepiece of the volume, published by C. H. Beck, is a comprehensive commentary analysing both the European Succession Regulation and the implementing provisions adopted in Germany. Current and former researchers of the Max Planck Institute for Comparative and International Private Law are significant contributors to the work. Their efforts draw on a number of earlier Institute-based projects and publications considering the European Succession Regulation.

 

The commentary has been edited by Prof. Dr. Anatol Dutta, Professor at the University of Regensburg, and Dr. Johannes Weber, Director of the Deutsche Notarinstitut. Both are former staff members of the Max Planck Institute for Comparative and International Private Law.

The commentary offers a comprehensive presentation of international succession law. Alongside the European Succession Regulation, the commentary also discusses relevant international agreements which are in force in Germany and which supplant the Regulation in their area of application.

The contribution of Dr. Jan Peter Schmidt, currently a research fellow at the Institute, examines among other topics the European Succession Regulation’s scope of application; here difficult questions arise regarding delineation in connection with other areas such as marital property, company law and general property law. The provisions on the European Certificate of Succession – allowing for the first time heirs and administrators to prove their status across the EU – are considered by Dr. Matteo Fornasier, also a research fellow at the Institute.

The Succession Regulation, entering into force on 16 August 2012 and governing all successions since 17 August 2015, has significantly uncomplicated the determination of the governing law in matters of international succession. Nonetheless, the Regulation will, particularly in its initial years, demand that legal practitioners navigate a maze of difficult questions – the present commentary aims to serve as a compass.

 

Dutta/Weber (eds.), Internationales Erbrecht, C. H. Beck, München 2016, 718 pages.

2016-05-09 – Chinese statute on foreign NGOs translated into German

At the close of April 2016, Chinese lawmakers enacted new legislation regulating foreign non-governmental organizations (the Foreign NGO Management Law). Critically received by international observers, the law has now been translated into German by Priv.-Doz. Dr. Knut Benjamin Pißler, head of the China Unit at the Max Planck Institute for Comparative and International Private Law.

 

The new law is directly linked with the enactment of a “Charity Law” in March 2016 that is directed at Chinese nonprofit organizations, such as associations and foundations, and subjects them to supervision by the Ministry of Civil Administration. The Foreign NGO Management Law, by contrast, foresees foreign nonprofits being subject to supervision by governmental agencies responsible for public security, that is to say by entities serving a function comparable to that of the police. According to concurring media accounts, the law will impact 7,000 NGOs in China, this including approximately 200 German organizations. One particular problem in the legislation is the imprecise definition of foreign NGOs found in § 2 of the law; another is the question of just which activities fall under the legislation’s scope.

 

The China Unit has for many years devoted its attention to the regulation of nonprofit organizations in China. In 2010 the Unit produced a comprehensive English-language entry which appeared in the Cambridge University Press volume “Comparative Corporate Governance of Non-Profit Organizations”, edited by Klaus J. Hopt, former Director at the Max Planck Institute for Comparative and International Private Law, and Thomas von Hippel. Among other focal points, that contribution extensively examines how foreign NGOs can act under the governing law in China. The present translation of the Foreign NGO Management Law is a first step both in analyzing the challenges faced by foreign NGOs operating in China and in determining the interplay of the new law with the regulations governing Chinese nonprofit organizations. The Foreign NGO Management Law will take effect on 1 January 2017.

 

 

Link to page describing research by the China Unit on the law of nonprofit organizations

Link to SSRN Article (Nonprofit Organizations in the People’s Republic of China

2016-05-07 – Judicial interpretation on the application of the Chinese Civil Procedure Law translated into German

At the start of 2015, the Supreme People’s Court of the People’s Republic of China issued a comprehensive interpretation on the application of the Civil Procedure Law, a statutory instrument comprising more than 500 articles. Priv.-Doz. Dr. Knut Benjamin Pißler, head of the China Unit at the Max Planck Institute for Comparative and International Private Law, has translated the judicial interpretation of the Supreme People’s Court into German.

 

The translation is the first result of a cooperative project addressing Chinese civil procedure law. Together with other scholars and practitioners, Knut Benjamin Pißler is working on the preparation of a book on Chinese civil procedure law. The involved participants include Professor Dr. Bu Yuanshi, professor of Chinese business law at the University of Freiburg and Nils Pelzer from the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law. The book intends to treat individual topics of Chinese civil procedure law and simultaneously serve as a commentary on the new interpretation promulgated by the Supreme People’s Court. The “Judicial Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China’” was adopted at a meeting of the Judicial Committee of the Supreme People’s Court at the end of 2014 and has been in effect since February 2015. The interpretation of the Civil Procedure Law is another in a series of judicial interpretations issued by the China’s highest court; the role of such interpretations – a legal mechanism characterized by several exceptional elements and particularities – was addressed in a pioneering article recently authored by Knut Benjamin Pißler (see Max Planck Private Law Research Paper No. 15/27).

 

SSRN Article „Übersetzung: Erläuterungen des Obersten Volksgerichts zur Anwendung des 'Zivilprozessgesetzes der Volksrepublik China' vom 30.01.2015“

2016-04-29 – Does the Law of Succession Reflect Cultural Differences?

It is widely thought that the law of succession reflects deeply-rooted cultural differences. Related to this is the idea that the law of succession is a subject marked by resistance to change; and also the perception that critical comparative studies or attempts at legal unification are unpromising endeavours. In his recent essay published in the Juristen Zeitung, and based on his inaugural lecture for the biannual congress of the Gesellschaft für Rechtsvergleichung, Reinhard Zimmermann challenges these views.

 

The essay of Reinhard Zimmermann, Director at the Max Planck Institute for Comparative and International Private Law, critically examines the proposition that succession law reflects deep cultural roots and argues that succession law possesses no more a folklore character than does, for example, contract law. In both fields, the aim is to create legal rules that to the greatest extent possible meet the needs and practical expectations of individuals. The noticeable differences in various Western succession law regimes cannot be explained – and certainly not exclusively explained – by dissimilar cultural underpinnings. Rather, one sees different manifestations of a European legal tradition that is uniform in many significant regards. Zimmermann explains that succession law demands a critical international discussion and permanent efforts at ascertaining the best solution to substantive problems which arise in a similar manner universally. He points out transsystematic reference points and trends of legal development, possibilities for critical reflection, and historical examples of legal transplants, legal unification, and legal change. All examples are taken from two central fields: testamentary formalities and the rules on intestate succession. Also examined is the connection between succession law and religion. Here, Reinhard Zimmermann comes to the conclusion that the Church’s contribution to the development of succession law does not have a specifically religious connotation today.

 

Reinhard Zimmermann, Kulturelle Prägung des Erbrechts?, Juristenzeitung 2016, 321 - 332.

http://ssrn.com/abstract=2782373

2016-04-20 – “Global Securities Trading” – Post-doctoral dissertation of Simon Schwarz published

Simon Schwarz, former research fellow at the Max Planck Institute for Comparative and International Private Law, examines the risks, theory and specific issues of trading, clearing and settlement in the context of local and international securities transactions in his post-doctoral dissertation, published by Mohr Siebeck.

 

Departing with a survey of the economic realities of global securities trading and the associated settlement system, Simon Schwarz undertakes a comprehensive analysis of current German securities trading law, including its comparison to the legal regimes of the USA, Belgium and Luxembourg. Securities trading is accomplished exclusively by means of account transactions. These processes are of central economic importance and are ever more frequently the subject of focus among international legislators and expert panels. In such discussions, German law is increasingly criticized as outdated, uncertain and internationally incompatible.

 

In his post-doctoral dissertation, Simon Schwarz theorizes that to a large extent German law already meets the demands of a modern depository legal regime and that it corresponds functionally to the hybrid approaches adopted by the legal systems which he has examined under a comparative lens. As a further step in the development of the existing legal framework, his study proposes conflict-of-law solutions suitable for the world of modern security transactions.

 

Dr. habil. Simon Schwarz studied law in Hamburg and Geneva and completed a master degree program (LL.M.) at the University of Cambridge. From 2003 to 2008 he was employed as a research staff member at the Max Planck Institute for Comparative and International Private Law in Hamburg. In 2012 he was awarded his doctoral title. Only one year later he was awarded his post-doctoral degree (Habilitation) by the University of Hamburg. Since 2009 he has worked as an attorney with the international law offices of Freshfields Bruckhaus Deringer LLP in Hamburg and has on several occasions been a guest scholar at the Institute

 

Simon Schwarz, Globaler Effektenhandel, Mohr Siebeck, Tübingen 2016, 1037 pages (published in German).

2016-04-20 – The Intestate Succession Rights of the Deceased's Spouse in Historical and Comparative Perspective

The coordination of the position of the surviving spouse with that of the deceased's (blood-) relatives is one of the central problems faced by the intestate succession systems of the Western world. Reinhard Zimmermann, Director at the Max Planck Institute for Comparative and International Private Law, examines in his RabelsZ article the intestate succession rights of the deceased’s spouse in historical and comparative perspective.

 

While the succession of the relatives essentially follows one of three different systems (the "French" system, the three-line system, and the parentelic system) which have remained relatively stable, the position of the surviving spouse has, over the centuries, become ever more prominent. Roman law, at the time of Justinian, took account of the surviving spouse only in exceptional situations, medieval customary law often not at all. Today, on the other hand, she (much more often than he) has worked her way up, in most countries, to the position of main beneficiary under the rules of intestate succession, for small and medium-sized estates sometimes even to the position of exclusive beneficiary.

 

The present essay (based on the author's Rudolf von Jhering Lecture at the University of Gießen) traces this development. In doing so it attempts, in the spirit of Jhering, not to line up the laws in the various epochs of our legal history "like pearls on a pearl string" but to look at them as part of a development and to trace their interconnections. The same idea can also be applied to comparative law in view of the fact that the modern national legal systems do not coexist in isolation but in a "system of mutual contact and influence" and, as may be added, on the fertile soil of a common legal culture. Today we find a wide-spread desire to allow the surviving spouse to remain in her familiar environment and to continue to enjoy the standard of living she has become accustomed to. Legal systems still differ as to the way in which best to achieve this aim, i.e. as to the details of the surviving spouse's intestate succession right. The contribution of Professor Zimmermann analyses these differences and supports an approach modelled on Austrian law.

 

"Das Ehegattenerbrecht in historisch-vergleichender Perspektive (The Intestate Succession Rights of the Deceased's Spouse in Historical and Comparative Perspective)"

 

Reinhard Zimmermann, Das Ehegattenerbrecht in historisch-vergleichender Perspektive, Rabels Zeitschrift für ausländisches und internationales Privatrecht 80 (2016), 39 - 92.

2016-04-15 – One Hundred Years of Comparative Law – From a Scholarly Source of Knowledge to an Obligatory Method in the Application of Law

As Roman law was gradually replaced by national codifications, European legal scholarship lost a common frame of reference. The comparative analysis of law was seen as being capable of filling this void. In his article for the JuristenZeitung, Jürgen Basedow, Director at the Max Planck Institute for Comparative and International Private Law, examines the evolution of comparative law over the past century.

Whereas initially individual scholars undertook comparative research and the exploration of new methodology as an intellectual endeavour, drawing inspiration from foreign law and looking to deepen the reservoir of practical solutions, since the end of World War I one can observe an increasing number of legal rules – in a variety of legal fields – obliging judges to conduct a comparative inquiry. The article from Jürgen Basedow explores the transformation of the discipline from a scholarly source of knowledge to an obligatory method in the application of law, tracing this development in respect of general public international law, human rights law, and uniform law conventions as well as for various aspects of European law and private international law.

 

http://papers.ssrn.com/sol3/sample_issues/1562241_CMBO.html#paper_2738507

 

JuristenZeitung (JZ), Vol. 71, No. 6, pp. 269-280, 2016

2016-02-16 – New Publication “International Commercial Arbitration” provides comprehensive insight into this fast growing field

Commercial arbitration is rapidly becoming a significant means of resolving international disputes, allowing its participants to choose the seat of arbitration from across the world. This newly released volume “International Commercial Arbitration” aims to inform and facilitate that choice.

 

The book provides an overview of the basic principles of international commercial arbitration, particularly the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. It follows on with chapters uniformly structured by country, presenting extensive insight into the rules of commercial arbitration in the most significant jurisdictions: Austria, Belgium, Brazil, China, England and Wales, France, Germany, Hong Kong, India, the Netherlands, Russia, Singapore, Sweden, Switzerland and the USA. The book, unique in its presentation of this material also features work by researchers from the Max Planck Institute for international and comparative private law. Dr. Martin Illmer, Senior Research Fellow at the Institute carried out the comprehensive analysis of arbitration in England and Wales, a subject for which he already has several publications to his name, while Dr. Ben Steinbrück, a former research fellow at the Institute, investigated commercial arbitration in India. Published in English, and addressed to an international audience, the book was released at the end of January 2016, by C.H. Beck publishing.

 

Stephan Balthasar, International Commercial Arbitration, C.H. Beck, München 2015, XXXIX + 701 pp.

2015
2015-12-17 – Newly revised 5th edition of “Handelsvertreterrecht” published

The new edition expands on important parts of the commentary on commercial agency law, including the right to compensation.

 

Authored by Professor Klaus J. Hopt, Emeritus Director of the Max Planck Institute for Comparative and International Private Law, the commentary takes into account that the open borders of the European internal market have intensified competition also in the area of distribution. Moreover, Hopt explains that European commercial agency law is becoming more important in the work of the European Commission and the Court of Justice of the European Union (CJEU). The new edition also highlights changes to EU competition law and evaluates the many new decisions of the courts of appeal as well as the Seventh Civil Chamber of the Federal Court of Justice (BGH), which is now competent over commercial agency matters.

 

First published in 1992, this short commentary is targeted at three groups of individuals: (i) commercial agents as well as authorized and private dealers, to whom commercial agency law mainly applies; (ii) merchants and other entrepreneurs who use commercial agents or authorized dealers for distribution matters; and (iii) business customers and consumers who need to know what and whom they can rely on. The commentary provides a detailed outline of the rights and obligations of the parties involved so as to facilitate the work of judges, practitioners and academics.

 

Klaus J. Hopt, Handelsvertreterrecht 5th Edition, C.H.Beck, München 2015, XLII + 500 pp.

2015-12-09 – Expanded second edition of “Principles of European Insurance Contract Law” released

The new and partly updated version of the “Principles of European Insurance Contract Law” (PEICL) includes provisions on liability insurance, life insurance and group insurance.

 

Edited by Jürgen Basedow, Director at the Max Planck Institute for Comparative and International Private Law, John Birds, Malcolme Clarke, Herman Cousy, Helmut Heiss and Leander D. Loacker, the volume is based on the work of the European research group “Restatement of European Insurance Contract Law”. The project saw legal scholars from 14 Member States of the European Union as well as Switzerland jointly formulate rules – drafted in the fashion of statutory law – for the field of insurance law. The first edition of “Principles of European Insurance Contract Law“ was limited to a treatment of general insurance law, with each rule being explained in a comment section and annotated with comparative law notes. For the new expanded edition, the group also considered proposals regarding liability insurance, life insurance and group insurance. In the volume, the researchers make clear the need for a common European insurance contract law and with the PEICL indicate a way for this to become a reality. With the now-published expanded edition, the pan-European research project has, for the moment, reached a conclusion after 15 years of cooperative effort.

 

Jürgen Basedow/John Birds/Malcolme Clarke/Herman Cousy/Helmut Heiss/Leander D. Loacker, Principles of European Insurance Contract Law (PEICL) 2nd expanded edition, Otto Schmidt, Köln 2016, 976 pp.

2015-12-01 – "50 Jahre Aktiengesetz" published

The collection of articles examines the fifty years which have unfolded since the enactment of the Stock Corporation Act and considers the future of the law on stock companies.

 

In 1965 the German Parliament enacted the fundamentally reformed Stock Corporation Act that would later enter into force on 1 January 1966. The present conference volume, edited by Holger Fleischer, Managing Director of the Max Plank Institute for Comparative and International Private Law, together with Jens Koch, Bruno Kropff and Marcus Lutter, offers eleven chapters that both review the last fifty years and consider the future of stock corporation law. An extensive chapter authored by Fleischer explores the comparative sources which helped to inspire the Stock Corporation Act of 1965, and on this foundation he then identifies the impact of the codification on foreign stock corporation law. The collection of essays traces back to a March 2015 symposium sponsored by the Max Plank Institute for Comparative and International Private Law in cooperation with the University of Bonn’s Zentrum für Europäisches Wirtschaftsrecht.

 

Holger Fleischer/Jens Koch/Bruno Kropff/Marcus Lutter (eds.), 50 Jahre Aktiengesetz, De Gruyter, Berlin 2016, 353 pp.

2015-11-17 – "Comparative Succession Law Vol. 2: Intestate Succession" published

Second volume of long-term project on key issues of succession published.

 

Although it is one of the most important practical areas of private law, the law of succession has regularly been neglected in comparative research. To counteract this, Reinhard Zimmermann, Director at the Max Planck Institute for Comparative and International Private Law, Kenneth GC Reid of the University of Edinburgh, Marius J. de Waal of Stellenbosch University, and partners from 15 jurisdictions around the world have undertaken the task of investigating central questions of inheritance from a historical and comparative perspective. The first results of this long-term research project were published in 2011 in "Comparative Succession Law, Vol 1: Testamentary Formalities." (Kenneth GC Reid, Marius J. de Waal, Reinhard Zimmermann (Eds.) Oxford University Press, 2011, 521 pp.).

 

Now the second volume of the series, "Comparative Succession Law Vol. 2: Intestate Succession", has been published. In "Comparative Succession Law Vol. 2: Intestate Succession" the members of the international research group examine how succession is governed in circumstances where the deceased has not made any testamentary disposition or where his testamentary disposition is ineffective. The key principles of family succession are considered here. The family of the deceased consists on the one hand of his relatives and, on the other, of his spouse. There are therefore two key legal problems: the order in which the relatives inherit from the deceased; and what the position of a surviving spouse is, in comparison with and with regard to, the surviving relatives. The inquiry is guided by a historical-comparative perspective that allows the contours of different rules in the modern legal systems to emerge more clearly and understandably, and which critically reflects on the essential structural elements of these rules. Among the topics considered, close attention is paid to the inheritance position of children born out of wedlock and adopted children, as well as life partners and partners in non-marital cohabitation.

 

Kenneth G. C. Reid, Marius J. de Waal, Reinhard Zimmermann (Eds.), Comparative Succession Law, Vol. 2: Intestate Succession, Oxford University Press, 2015, 560 pp.

2015-09-30 – Arbitration and European Union Law

„EU Law in International Arbitration: Referrals to the European Court of Justice” published in the Journal of International Arbitration


Not least on account of the current debate surrounding the Transatlantic Trade and Investment Partnership (TTIP), the article by Jürgen Basedow, Director at the Max Planck Institute for Comparative and International Private Law, is of great topical interest. In “EU Law in International Arbitration: Referrals to the European Court of Justice”, Basedow highlights the ongoing change in the approach of the European Court of Justice (CJEU) toward arbitration over investment protection. While the courts of Member States are enabled or even required to submit preliminary questions concerning the interpretation of EU law to the CJEU, such referrals have traditionally been held inadmissible where made by arbitral bodies. Slowly, however, a softening of this position can be identified: based on the analysis of Basedow, arbitral tribunals confronting investment disputes are now able to refer questions regarding EU law to the CJEU. Additionally, Basedow outlines a number of fundamental changes in the overall environment of commercial arbitration which should lead to a reversal of the Court’s position also in this field.
 

The article is available on SSRN at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2642805

 

2015-09-21 – Surrogate im Internationalen Privat- und Verfahrensrecht

“Surrogate Motherhood in Private International Law and the Law of International Civil Procedure. Filiation and Public Policy in the Light of Constitutional, International and European Law” published by Mohr Siebeck


Surrogate motherhood as currently practiced challenges our fundamental understanding of family and parenthood given that it typically involves a baby who has no genetic relation to the surrogate mother being brought to term on behalf of others. But how does the law treat a couple who travels abroad in order to fulfill their wish for children through surrogacy? Konrad Duden, research associate at the Max Planck Institute for Comparative and Private Law, addresses this question in his recently published dissertation. Looking at six legal systems in which surrogacy is permitted, he analyses who would be the parents of such children in the eyes of German law. His study shows that in many cases the children are deprived of any filiation with the intended parents, and the analysis goes on to contrast these findings with the fundamental and human rights enjoyed by the involved parties. In particular, the rights of the child demand that as a general rule the offspring of surrogacy be integrated into the legal family of the intended parents.

Konrad Duden studied law in Heidelberg, Bilbao and Cambridge, receiving scholarships from the German National Merit Foundation, the Friedrich Naumann Foundation and the German Academic Exchange Service (DAAD). He has been engaged as a research assistant at the Max Planck Institute for Private Law since 2012. His doctoral dissertation, which earned the mark of summa cum laude, was awarded the Serick Prize in 2015.


Konrad Duden, Leihmutterschaft im Internationalen Privat- und Verfahrensrecht – Abstammung und ordre public im Spiegel des Verfassungs-, Völker- und Europarechts, 
Studien zum ausländischen und internationalen Privatrecht 333, Mohr Siebeck, Tübingen 2015, XXIV + 392 pp. 


2015-09-17 –The Law of Open Societies

Revised and updated version of the Hague Academy of International Law’s 2012 General Course on Private International Law


In the 90-year history of the Hague Academy of International Law, Jürgen Basedow, Director at the Max Planck Institute for Comparative and International Private Law, was the fourth German scholar to have been invited to hold the annual General Course on private international law. His series of lectures in 2012 were dedicated to the topic of “The Law of Open Societies – Private Ordering and Public Regulation of International Relations”. The monographic treatment undertaken in connection with the General Course was initially released in abbreviated form in the series Recueil des Cours de l’Academie de droit international de la Haye. The unabridged version of this work has now been published.

The leitmotiv of the lectures delivered by Jürgen Basedow is the notion of the Open Society, a concept also capturing the social science dimension of the treatment. His work explains the far-reaching consequences of globalisation for the ordering of private legal relationships. Whereas the increasing acceptance of choice of law has expanded the room for maneuvering by private actors in many fields, mandatory law still serves to preserve core societal values and principles. Overall, Basedow argues for a rebalancing of the private ordering of legal relationships on the one hand, and, on the other, for the imposition of state regulatory ideals in cross-border relations. The book closes with an appeal for restraint on the part of national courts and legislators in the imposition of their own mandatory rules, and he remarks as to the increasing readiness of courts to respect the mandatory rules of third states under certain conditions.

Jürgen Basedow, The Law of Open Societies – Private Ordering and Public Regulation in the Conflict of Laws, The Hague Academy of International Law Monographs, vol. 9, Brill-Nijhoff, Leiden 2015, XXV + 634 pp.
 

2015-08-31 – Enforcement in Company and Capital Markets Law 2015

Collection documenting 5th German, Austrian and Swiss Company and Capital Markets Law Symposium published by Mohr Siebeck


Questions surrounding enforcement in company and capital markets law are considered in a newly released collection of articles edited by Holger Fleischer, Director at the Max Planck Institute, together with Susanne Kalss, Vienna University of Economics and Business, and Hans-Ueli Vogt, University of Zurich. The publication stems from the fifth annual meeting of German, Austrian and Swiss company and capital markets law jurists, held June 2014 in Hamburg.

The contributions look at enforcement from the perspectives of private law, public law and criminal law. Specific questions addressed include: the enforcement of compensatory claims against the organs of a public limited company; the settlement of GmbH and stock corporation claims; company law and arbitration law; die actio pro socio in partnership and GmbH law; capital market law as falling between the enforcement of public and private law rules; and criminal law as a means of enforcing company law.

Holger Fleischer/Susanne Kalss/Hans-Ueli Vogt (eds.), Enforcement im Gesellschafts- und Kapitalmarktrecht 2015. Fünftes Deutsch-österreichisch-schweizerisches Symposium. Mohr Siebeck, Tübingen 2015, 334 pp., published in German.
 

2015-07-24 – The Procedural Framework for Judge-Made Law

Introductory overview by Jürgen Basedow, Managing Director of the Max Planck Institute for Comparative and International Private Law


Discussions surrounding judge-made law generally look at the topic in terms of legal theory and its constitutional validity. Accepting the existence of case law fashioned by judges, such discussions are no doubt of value. Yet the reality of the practice leads to a another question: How should court proceedings be arranged so as to improve the quality of judge-made law and maximize the knowledge of courts in respect of those interests and areas of life that are impacted by precedential rulings? Answering this question requires an appreciation of the significant institutions, the intended proceedings and the manner in which relevant information is collected, all with an eye toward the optimization of judge-made rules; in this regard, comparative law can make a valuable contribution. Finally, the legal culture in which practice and scholarship operate has to borne in mind. Whereas “Western” countries are now quite accustomed to the notion of law being created by the judiciary, a gap exists in many parts of the world. Thus, in many countries one still encounters the belief that there is no such thing as judge-made law, despite its existence being anchored – there as well – in the practice of high courts.

The full text can be downloaded at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2622974.

The published article of Jürgen Basedow stems from the symposium held as part of the annual meeting of the Friends of the Max Planck Institute in June 2015 Hamburg.

A total of six presentations at the symposium were devoted to the theme "The Procedural Framework for Judge-Made Law". They are published in volume 80/2 (2016) of the Rabel Journal.


 

2015-07-09 – New publication on Chinese civil and business law

Knut Benjamin Pißlerhas co-edited the first volume of a comprehensive reference work analysing Chinese civil law and business law


Following the opening of the People’s Republic of China in 1978, one can observe among German jurists a continually growing interest in the evolving Chinese legal system. Accessibility to this multi-layered and dynamic legal regime has, however, until now been limited by the absence of a current and systematic German-language survey work addressing Chinese civil and business law. Against this background, Pißler has, together with his co-editors Jörg Binding (Deutsche Gesellschaft für Internationale Zusammenarbeit, Beijing) and XU Lan (China University of Political Science and Law), pursued the goal of publishing a comprehensive analysis that focuses on the central areas of Chinese civil law, including private international law, and that employs the established methodology of German law to evaluate and systematically present Chinese law and discourse.

At the same, it was a conscious aim of the editors to create a work firmly orientated on legal practice. Hence, the individual chapters of the book represent the partnered efforts of a Chinese and German team of authors who collectively boast multiple years of experience as researchers and practitioners working with Chinese law.

The book covers the central areas of Chinese civil law inclusive of private international law, offering expansive references also encompassing literature in other Western languages. With chapters on contract law, the law of tort, property law and proprietary security rights, core fields of private business and economic law have been detailed. The treatments of family law and succession law, by contrast, look at areas thus far mostly neglected in works on Chinese civil law, although these areas are, in fact, particularly important for the understanding of traditional Chinese legal conceptions given the not always immediately identifiable influence exerted by elements of the formerly dominant socialist legal circles. A second volume considering the remaining areas of business and economic law is in the planning.

Jörg Binding, Knut Benjamin Pißler, Lan Xu (eds.), Chinesisches Zivil- und Wirtschaftsrecht, Fachmedien Recht und Wirtschaft, Frankfurt am Main 2015, XXVIII + 334 pp.
 

2015-06-11 – Revised and completed edition of “Europäisches Vertragsrecht” published

Hein Kötz’s supplemented and expanded revision of the first edition results in a comprehensive presentation of European contract law.


The volume “Europäisches Vertragsrecht” (European Contract Law) was released in a first uncompleted edition in 1996 with the intent of a second volume considering further areas of contract law. Now, in a second, revised and completed edition, Hein Kötz, Emeritus Director at the Max Planck Institute for Private Law, has provided the absent sections and updated the existing text.

The work deals with the contract law of the European legal systems. What are the essential rules of these systems on the formation and validity of contracts? What rules apply to a party´s right to bring a claim for performance, to terminate the contract or to claim damages for breach? While the discussion is based on the national rules, they are taken into account only as local variations on a European theme. To what extent is it therefore possible to speak of a common European law of contract? What contributions do the "Principles of European Contract Law" and the proposal of the "Draft Common Frame of Reference" make? This book is not only aimed at helping to teach young Europeans lawyers, but also strives to assist those engaged in the reform of national contract law or the drafting of uniform European legislation.

Hein Kötz, Europäisches Vertragsrecht, 2nd revised and completed edition, Mohr Siebeck, Tübingen 2015, XIV + 535 pp. (Published in German).
 

2015-06-08 – “German and Nordic Perspectives on Company Law and Capital Markets Law” – new conference volume released

The Mohr Siebeck publication stems from a symposium held at the Max Planck Institute for Comparative and International Private Law in Hamburg.


Edited by Holger Fleischer, Director at the Max Planck Institute for Private Law, Jesper Lau Hansen, Professor at the  Københavns Universitet and Wolf-Georg Ringe, Professor at the Copenhagen Business School, the collection of essays offers a broad comparative analysis of company and capital markets law in Germany and the Nordic states. It details the special elements of company law in Scandinavia that developed amid the twin forces of innovative experimentation and the drive for harmonization, contrasting them with the distinctive features of German company law. Further contributions deal with the newly created entrepreneur company in Germany and Denmark, as well as the role of shareholders and boards in public companies. It also contains detailed analyses of the law of company groups in Germany and the Nordic states against the background of a possible harmonization of European law. The volume is rounded out with contributions on capital markets law and takeover law, addressing in particular the issues of acting in concert, ownership disclosure and the interplay between the legislature and the takeover panel in Sweden.

Recently, the follow-up symposium was held jointly at the Københavns Universitet and the Copenhagen Business School. Titled “Current Issues in European Company Law – Perspectives from Germany and the Nordic Countries”, the academic gathering presented and discussed further issues surrounding company and capital markets law in Germany and the Nordic states.

Holger Fleischer, Jesper Lau Hansen and Wolf-Georg Ringe (eds.), German and Nordic Perspectives on Company Law and Capital Markets Law, (BtrIPR 109), Mohr Siebeck, Tübingen 2015, XII + 275 pp.

 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2597062

2015-05-25 – Jürgen Basedow on the necessity of comparative law

“Comparative Law and its Clients” published in the American Journal of Comparative Law

 

The significance of comparative law in the ongoing development of law has not always been undisputed. Accordingly, in the first part of his submission “Comparative Law and its Clients”, Jürgen Basedow, Managing Director at the Max Planck Institute for Comparative and International Private Law, explores the various perspectives and approaches the topic has encountered.

 

In the present era of globalization, however, the necessity of comparative law is no longer subject to doubt. With the establishment of worldwide social and commercial networks, it is increasingly the case that legislators must take account of legal developments in other countries when formulating legislative measures for their own country. As different objectives can be pursued in comparative research, the question often arises as to what focus is adopted by any given scholarly inquiry. Thus in the second part of the article, Basedow examines the development of comparative law as an academic discipline. Subsequently, in the third part attention falls on the possible academic aims, what in turn leads to a consideration of the “customers” of the comparative inquiry at issue as it these “clients” that ultimately determine the goal and methodological approach of the research.

 

With this article, Jürgen Basedow aims to convey two central messages. First, we should accept that research in the field of comparative law, like research in other areas, is conducted with a view to certain expectations set outside the discipline and that the findings of individual research projects serve the needs of “clients” of comparative law. Second, we should not underestimate the imposing array of potential research objectives and their role in determining the style and method of comparative research. In this regard, a division of comparative law into certain fields of practice seems logical, allowing the establishment of evaluative criteria for the methods respectively applied.

 

Jürgen Basedow, Comparative Law and its Clients, The American Journal of Comparative Law 62, 4 (2014), 821 - 857.

 

http://ssrn.com/abstract=2391171

2015-03-13 – New UNIDROIT working group holds first meeting in Rome

The internationally constituted working group has been given the task of formulating possible amendments and additions to the Principles of International Contracts (PICC) with a view to the special needs of long-term contracts.

 

In 1980 the Governing Council of UNIDROIT established a working group charged with formulating principles of law applying to international commercial transactions. UNIDROIT, the International Institute for the Unification of Private Law, was set up in 1926 as an organ of the League of Nations and seated in Rome; since the end of World War II it has operated as an independent intergovernmental agency and is funded by approximately 60 countries (including all leading industrial nations). The above-mentioned working group produced the Principles of International Contracts (PICC), a non-legislative codification containing about 110 principles annotated by commentary and illustrative examples. The structure of the publication was inspired by the US Restatements of the Law. Two additional working groups convened by UNIDROIT subsequently revised and expanded the Principles; the new versions appeared in 2004 and 2011, respectively.

 

The Principles have been highly regarded since their initial publication. They have been the subject of numerous symposia and conferences; they have been analyzed in a number of publications; they play a role in the drafting of contracts and with regard to choice of law in the international commercial context; and it is apparent that they are increasingly relied upon in decisions reached by arbitrators and, occasionally, courts of law. Finally, the Principles have played a significant role in the reform of national contract law regimes. This holds true for the modernisation of the law of obligations in Germany as well as for the new codification of Dutch law and the law reforms undertaken in Central and Eastern Europe.

 

Last year, a new working group was set up for the purpose of formulating proposals for possible amendments and additions to the black-letter rules and comments of the current edition of the Principles with a view to covering the special needs of long-term contracts. The task reflects the fact that contract law is traditionally dominated by the paradigm of contracts to be performed at one time. Thus, one finds contracts of sale at the centre of attention. In international commerce, however, contracts to be performed over a period of time play an equally important role; notable examples include equipment leases, contracts involving distributorship, out-sourcing, franchising, licensing and commercial agency, and service contracts in general. Although these types of contracts are occasionally mentioned in the commentary and the illustrations accompanying the Principles (in one particular case – restitution following termination of a contract on account of non-performance – there is even a special rule), long-term contracts are for the most part only marginally addressed in the Principles. Accordingly, it can be asked whether certain rules having particular relevance for long-term contracts are in need of revision, whether at least the commentaries should be refined, and whether the Principles should, perhaps, also be broadened on various points. The new working group, which held its first week-long meeting in January in Rome, is composed of seven members (from Italy, Switzerland, the USA, France, Great Britain, Canada and Germany) and seven “observers”. The German representative is Reinhard Zimmermann, Director at the Max Planck Institute for Comparative and International Private Law, who also served as a member of the previous UNIDROIT working group (2006-2010). The following topics have been identified as being especially significant: contracts with open terms, agreements to negotiate in good faith, contracts with evolving terms, supervening events, co-operation between the parties and restitution after ending contracts entered into for an indefinite period.

 

It is envisaged that a provision on termination of contracts for compelling reason (in Germany: § 314 BGB) is to be introduced, and a definition of long-term contracts formulated. The working group will convene for its second week-long session in October at the Hamburg MPI; prior to that time the reporters assigned to individual issues will draft and circulate their proposals. In this vein, Reinhard Zimmermann and Sir Vivian Ramsey are responsible for the topic of termination for compelling reasons.

2015-02-24 – „Proprietary Security in Movable Assets“ – New volume in the Principles of European Law series published by Sellier

Credit is the lifeblood of the modern economy. The availability and legal effect of proprietary security has a significant influence on whether and under what conditions credit is extended in private law transactions. In this regard, numerous types of security rights in movable assets can come into play, whether as pledge or lien, as retention of title or leasing agreement, or as an assignment of receivables.

 

The work on proprietary security in movable assets has been edited by Prof. Dr. Dr. h.c. mult. Ulrich Drobnig, former Director at the Max Planck Institute for Comparative and International Private Law, and Dr. Ole Böger, Judge at the Bremen Regional Court and presently seconded to the German Federal Ministry of Justice and Consumer Protection. The book has been published by Sellier as a volume in the Principles of European Law series produced by the Study Group on a European Civil Code.

 

The law on security rights in movable assets is characterised by strong divergences between the different national legal systems, with variations ranging from the particulars of registry publication to fundamental aspects such as attempts to achieve an approach of uniform functionality rather than one differentiating between title retentions and limited security rights. It is for this reason that the area of security rights has for several decades been the object of national and international reform efforts that aim to overcome the practical problems which result from these differences and develop a security rights system of optimal efficiency. These reform efforts received a particular impetus from the publication of the Draft Common Frame of Reference (DCFR) in 2009, whose Book IX on Proprietary Security in Movable Assets included a set of model rules for common European principles on security rights in movable assets.

 

The present volume concludes the work on security rights commenced by the DCFR’s Book IX. In 131 articles – authored in English but accompanied by German, French, Italian and Spanish translations – a comprehensive system of proprietary rights in movable assets is developed. Additionally, the book contains not only detailed commentaries discussing these articles and the proposed system on security rights but also comparative notes considering the law of EU Member States on the various aspects of proprietary security. The work represents both a contribution to the national and European discussions on the further modernisation and uniformisation of security rights in movable assets as well as a comparative study exploring the similarities and differences in the approaches to security rights taken by individual EU Member States.

 

Ulrich Drobnig, Ole Böger, Proprietary Security in Movable Assets (Principles of European Law), Sellier European Law Publishers, Munich 2015, LVI + 934 pp.

2015-02-12 – Fifth edition of "Großkommentar zum Aktiengesetz"

Comprehensive commentary by Klaus J. Hopt and Markus Roth on responsibility of management board members (§ 93 AktG)

 

The Großkommentar zum Aktiengesetz (Commentary on the German Stock Corporation Act), offering a comprehensive examination of corporate law for scholars and practitioners, now appears in its 5th edition. Published by de Gruyter (Berlin), the work comprises 15 sequenced volumes. The first two volumes of the new edition, covering management boards, have been in print since December 2014.
 
Klaus J. Hopt, former Director of the Max Planck Institute for Comparative and International Private Law, has together with Markus Roth authored a fully new and expanded commentary considering § 93 AktG, the provision governing the responsibility of management boards. The roughly 300-page entry represents a monumental task given that since the preceding 1999 edition and since the recent financial crisis, the number of claims available against directors and officers has dramatically increased and numerous academic articles have been published.
 

The commentary offers a particularly detailed treatment of the legal obligations of board members – thus the duty of care (including the business judgment rule), the duty of loyalty and the duty of confidentiality – and it takes account of many factual constellations and individual factual situations. Examples in respect of the duty of care include: the taking of risks threatening the company’s existence, conflicts of interest, requirements regarding acquiring information, bribes, deviations from court rulings, the duty to obtain legal advice (including discussion of the BGH’s far-reaching “Ision” decision) and business ethics. In addition to these topics come requirements placed on business organisations as regards the creation of committees, delegation, risk management and compliance. Examples in respect of the duty of loyalty include: transactions with the company undertaken by board members on their own behalf, board member compensation, the exploitation of corporate opportunities, non-competition duties, the prohibition of insider dealing and much more. Also covered are the economic basis of decisions and international contexts. 

 
Heribert Hirte, Peter O. Mülbert, Markus Roth (Hg.), Aktiengesetz– Großkommentar §§ 92 – 94, 5. neu bearb. Auflage, de Gruyter, Berlin 2014.
 

Bearb. v. Mathias Habersack, Klaus J. Hopt, Markus Roth, Michael Kort, Max Foerster 

2015-02-11 – Investment Arbitration – quo vadis?

(Investment) Arbitration Under Attack – A Symposium Promoting an Informed Debate at the Max Planck Institute for Comparative and International Private Law

 

In the course of negotiations on the Transatlantic Trade and Investment Partnership (TTIP), potential rules regarding the protection of investments and investor-state arbitration have been subject to particularly focused criticism. In this vein, investment arbitration has been described as “shadow justice” and condemned as a process where money is the determinative factor. The result has been a heated debate in which objective arguments do not always play a central role.
 
On 4 February 2015, a symposium was conducted at the Max Planck Institute for Comparative and International Private Law that aimed to promote a more informed debate on the topic. The event was organised by Martin Illmer, Senior Research Fellow at the MPI for Private Law, and the Hamburg Arbitration Circle. Featuring podium presentations and subsequent discussion, representatives from academia and practice had the chance to offer their assessment of the ongoing developments.
 
Jürgen Basedow, Director at the Max Planck Institute for Comparative and International Private Law, opened the symposium with the wish that the undiscriminating thinking typifying the current debate – on one side vehement rejection and on the other blind consent – would give way such that focus could be had on specific aspects genuinely requiring more objective consideration.
 
Oliver Korte, Chairman of the Hamburg Arbitration Circle, welcomed the debate as justified but expressed his dismay that the criticism of investment arbitration was, without differentiation, also being projected onto commercial arbitration.
 
Axel Bartels, Former Presiding Judge of the Regional Court, commented that with commercial arbitration now having been pulled into the maelstrom of criticism accompanying the TTIP negotiations, practitioners could no longer remain silent lest this silence be interpreted as conceding the validity of the criticism. Bartels contended that his personal experience as an arbitrator as well as the fundamental principles of (commercial) arbitration speak against the sensationalist descriptions found in the media, where one finds portrayals of luxury events in five-star hotels and corporate judges beholden to money.
 
Axel Flessner, Emeritus Professor at the Humboldt University of Berlin, turned his attention to an aspect of the debate that in his view had thus far received minimal attention, namely the alleged objectionability of investment arbitration from a constitutional law perspective. In his opinion, the constitutionally anchored understanding of state liability cannot be reconciled with a special form of state liability owed to foreign investors, the latter being contemplated by the treaty. The resulting discrimination against national persons and entities would run afoul of Art. 3 III of the Basic Law.
 
A distinctly different viewpoint was represented by Marc Bungenberg, Professor at the University of Siegen. Despite some criticisms in terms of certain details, he positively assessed the investment policy thus far pursued by the European Commission. In so doing, Bungenberg widened consideration beyond TTIP and the investment protection chapter in the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada to include other ongoing European Commission negotiations, such as those with Singapore, Vietnam and Japan.
 
The industry view as to investment arbitration was expressed by Jan von Herff, Senior Manager – Trade and Industry Policy, BASF SE. In his opinion, the current system has proved its worth. Von Herff stressed that such proceedings are by no means casually undertaken by industry actors. The commencement of an investor-state arbitration is a means of last resort, taken only when all other mechanisms have failed.
 
Spirited comments and discussion followed the talks presented by individual speakers.

 

NDR Info – 2015/02/05 NDR news coverage of symposium (in German):

 

 

(Quelle:NDR Info/ Claudia Venohr)

2015-02-10 – The New Challenges Facing European Economic Law

“The New Challenges Facing European Economic Law – With Contributions from Germany and Greece” published by Mohr Siebeck.

 

Since the financial crisis, a tsunami of legal acts and proposals has swept across the Member States and imposed new demands on practitioners and academics. This collection of essays, edited by Klaus J. Hopt, former Director at the Max Planck Institute for Comparative and International Private Law, and Dimitris Tzouganatos, Professor at the Law Faculty of the National University of Athens, examines the new challenges faced by European business and economic law.

The new provisions do not, however, carry identical effects and consequences for each Member State. This reality suggests the value of conducting a closer comparative study, focusing on a prototypical “northern” country like Germany and a prototypical “southern” country like Greece. Of particular interest is how this harmonisation is viewed and experienced in selected areas of economic and business law. Specific topics of inquiry in the book include the European Banking Union, the restructuring of banks, European company and capital market law, European private law and consumer protection, European procedural law, cartel law and European competition law.

The just-released volume looks at an assortment of these myriad issues: it contains an array of critical evaluations of important points along the path to a further Europeanisation of this field, it analyses the formulation and implementation of individual harmonization projects, and it offers contributions exploring fundamental regulatory issues with regard for law and economics, legal paternalism and regulatory theory.

Klaus J. Hopt, Dimitris Tzouganatos (eds.), Das Europäische Wirtschaftsrecht vor neuen Herausforderungen. Beiträge aus Deutschland und Griechenland. Mohr Siebeck, Tübingen 2014, XIX + 355 pp. (published in German).

2015-01-27 – Just published: New Volume 1 of the “Münchener Kommentar zum GmbH-Gesetz”

Volume 1 of Münchener Kommentar zum GmbH-Gesetz now appears in its second edition. The reference work is edited by Holger Fleischer, Director at the Max Planck Institute for Comparative and International Private Law, together with Wulf Goette, former presiding judge of the Federal Court of Justice. The hefty academic commentary has the task of presenting and analysing in all its complexity Germany’s most prevalent business form – one embraced by over one million companies. Comprising more than 2,700 pages, Volume 1 treats the international company law of the GmbH and §§ 1-34 GmbHG. This is preceded by a comprehensive introduction authored by Holger Fleischer. In 125 pages he gives an in-depth account of the GmbH in panoramic perspective, considering it not only historically, comparatively and as encountered in practice, but also through a law and economics lens. Alongside culpa in contrahendo, the GmbH stands as Germany’s most successful civil law export.


Holger Fleischer/Wulf Goette (Eds.), Münchener Kommentar zum GmbH-Gesetz, C.H. Beck, München 2015, Band 1 (§§ 1-34), 2,712 pp. (in German).

2015-01-13 – New Manual on Company Valuations Published

Issues related to company valuations are of considerable significance in numerous legal areas, but they are often addressed only superficially in legal textbooks and commentaries: ludex non calculat! Now, a new publication edited by Holger Fleischer, Director at the Max Planck Institute for Comparative and International Private Law, and Rainer Hüttemann, University of Bonn, fills these gaps in legal literature. Totaling just under 1,200 pages, the “Rechtshandbuch Unternehmensbewertung” (Manual on Company Valuations) comprehensively covers company valuation in 31 chapters, ranging across areas such as company and capital markets law, the law of succession, family law, accounting law and tax law. The work also addresses matters regarding procedural law and international aspects of company valuation. In order to meet this task in its full scope, individuals from all professional groups involved with company valuation have contributed: university instructors (in the areas of both law and business management), accountants, tax consultants, lawyers and judges. Through this holistic and interdisciplinary approach, the publication not only examines the legal dimension of company valuation but also analyses its interconnection with valuation theory as understood from a business management perspective and with business valuation in practice.
 


Holger Fleischer/Rainer Hüttemann (eds.), Rechtshandbuch Unternehmensbewertung, Otto Schmidt Verlag, Köln 2015, 1188 pp. (published in German)

2014
2014-12-17 – The Direct Claim Against the Liability Insurer. A Comparative Jurisprudential Examination of German and Scandinavian Law

In the event of an insurable incident the right of an injured party to compensation is determined by the liability insurance contract which has insured the risk at issue. As a general rule, however, the injured party is not as a conceptual matter entitled to bring a claim directly against the insurer.


Dr. Gunnar Franck, LLM.oec., research fellow at the Max Planck Institute for Comparative and International Private Law, comparatively examines the extent to which German and Scandinavian law allow an injured party to proceed directly against an insurance provider. In his recently published dissertation, „Der Direktanspruch gegen den Haftpflichtversicherer – eine rechtsvergleichende Untersuchung zum deutschen und skandinavischen Recht“ (The Direct Claim Against the Liability Insurer. A Comparative Jurisprudential Examination of German and Scandinavian Law), Franck first details the numerous advantages of direct claims, a quality which makes them desirable from a policy standpoint. Thereafter, he analyses how to resolve problems which may result from a right of direct claim, particularly the third-party effects of an insurer’s objections and the binding effect of contingent liability . The focal point of the comparative analysis is Swedish law, but Norwegian, Danish and Finnish law are also considered when they encompass rules that are relevant to the analysis. The comparison with Scandinavian law thus illustrates many of the advantages and disadvantages attached to different legal approaches.

Gunnar Franck, Der Direktanspruch gegen den Haftpflichtversicherer - eine rechtsvergleichende Untersuchung zum deutschen und skandinavischen Recht, Mohr Siebeck, Tübingen 2014, XXIII, 235 pages, ISBN 978-3-16-153480-5 [published in German]

2014-12-02 – “Delegation of Private Autonomy to Third Persons” – Post-doctoral dissertation of Jens Kleinschmidt published

Jens Kleinschmidt, former research fellow at the Max Planck Institute for Comparative and International Private Law, examines the admissibility, procedure and review of subsequent terms by a third person in the law of obligations and succession in his just published post-doctoral dissertation.


Private autonomy is one of the foundations of all European systems of private law. It gives each individual the power to determine his legal relationships, both during his lifetime and post mortem. From a comparative perspective, Jens Kleinschmidt explores whether this power can be delegated to a third person, which procedural rules apply to that person’s decision and how the decision can be reviewed.

Prof. Dr. Jens Kleinschmidt, LL.M. (Univ. California, Berkeley), has been professor of civil law, private international law, international civil procedure and comparative law at the University of Trier since the winter semester 2013/14. His post-doctoral dissertation, prepared at the Max Planck Institute for Comparative and International Private Law, was supported with scholarship from of the DFG (German Research Foundation). Jens Kleinschmidt studied law in Cologne, Geneva, Freiburg and at the University of California at Berkeley. He was awarded his doctoral degree in 2003 from the University of Regensburg. In 2012 he attained his post-doctoral degree (Habilitation) at Bucerius Law School in Hamburg, where he had lectured since 2005. Focal points of his research include German and European Private Law, private international law, international civil procedure and comparative law.

Jens Kleinschmidt, Delegation von Privatautonomie auf Dritte. Zulässigkeit, Verfahren und Kontrolle von Inhaltsbestimmungen und Feststellungen Dritter im Schuld- und Erbrecht, Mohr Siebeck 2014, XL, 907 pages. JusPriv 186 (published in German)

 

18.11.2014 – New Publication: Current Developments in German, Austrian and Swiss Corporate and Capital Markets Law 2014

Current and fundamental topics of German, Austrian and Swiss corporate and capital markets law are addressed in this just-released collective volume which has been edited by Holger Fleischer, Director at the Max Planck Institute for Comparative and International Private Law, together with Susanne Kalss, Vienna University of Economics and Business, and Hans-Ueli Vogt, University of Zurich.

The publication combines the papers and reports from the fourth annual meeting of company law jurists from German-language jurisdictions, which was held in May 2013 in Zurich, Switzerland. The volume considers questions regarding the stringency of a company's articles of association, the interpretation of partnership agreements, the raising and maintenance of capital in AGs and GmbHs, the drafting of contracts for joint ventures and the dissolution of business partnerships.



Hans-Ueli Vogt/Holger Fleischer/Susanne Kalss, Gesellschafts- und Kapitalmarktrecht in Deutschland, Österreich und der Schweiz 2014 [Current Developments in German, Austrian and Swiss Corporate and Capital Markets Law 2014], Mohr Siebeck 2014, 271 pages (published in German).

2014-10-14 – Honoured: “Regulating the Closed Corporation”

The collaborative volume “Rechtsregeln für die geschlossene Kapitalgesellschaft” [Regulating the Closed Corporation], co-edited by Holger Fleischer, Director at the Max Planck Institute for Comparative and International Private Law, has been named as one of the best legal books of 2014.

 

In the twentieth instance of an annual rite, a panel of law professors convened in connection with the Frankfurt Book Fair and compiled a list of current legal publications which should be on every jurist’s reading list. As published in the Neue Juristischen Wochenschrift (NJW), the current year’s list of recommendations includes “Rechtsregeln für die geschlossene Kapitalgesellschaft”, edited by Gregor Bachmann (FU Berlin), Horst Eidenmüller (LMU München), Andreas Engert (University of Mannheim), Holger Fleischer and Wolfgang Schön (MPI for Innovation and Competition).

 

In the comments accompanying the list (NJW 2014, 3000), the panel voiced its praise for the work: “It remains seldom that such a unified whole can result from a concert assembling accomplished soloists: a true monograph from which as much can be learned about the challenges of modern company law as about the diversity of prevailing comparative ideas and forces of legal policy.” This year’s panel of reviewing professors featured Thomas Ackermann (Munich), Horst Dreier (Würzburg), Nils Jansen (Münster), Claus Kreß (Cologne), Michael Pawlik (Freiburg), Karsten Schmidt (Hamburg) and Reinhard Zimmermann (Director at the MPI for Private Law, Hamburg).

 

Notwithstanding the economic significance it holds as the preferred corporate form of small and mid-sized firms, the closed corporation is frequently subject to only minimal academic discussion and has thus been dubbed "the orphan of corporate law". At the same time, however, many European countries have in recent years amended and modernised their laws on the closed corporate form. It is against this background that the authors have jointly undertaken a first attempt at formulating principles of closed corporations in Europe independent of any specifically existing laws or proposals. The examination systematically addresses the typical areas of cross-border conflict with regard to closed corporations. In doing so, legally-based comparative experience and findings from business economics are applied with recurring consideration being given to the European private company (SPE).

 

An English version of the work was published at the beginning of this year under the title Regulating the Closed Corporation.

 
Gregor Bachmann, Horst Eidenmüller, Andreas Engert, Holger Fleischer, Wolfgang Schön (eds.), Rechtsregeln für geschlossene Kapitalgesellschaften, De Gruyter, Berlin 2012, 235 pages.
 

Gregor Bachmann, Horst Eidenmüller, Andreas Engert, Holger Fleischer, Wolfgang Schön (eds.), Regulating the Closed Corporation, De Gruyter, Berlin 2014, 266 pages.  

2014-09-23 – The Modernization of the Law of Obligations in Japan – A Comparative Analysis

Papers and comments from the Tokyo symposium considering the modernization of Japanese law of obligations published in a German-Japanese conference volume.

 

At present Japan is undertaking a comprehensive reform of its law of obligations. The aim of the effort is to keep abreast of the economic and social changes witnessed since the original entry into force of the Japanese Civil Code over 100 years ago. In 2013 the Reform Commission convened by the Japanese government submitted its draft proposal for a modernized law of obligations. In February of this year a conference was held in Tokyo which considered the law of obligations and the proposed draft in comparative perspective, with participants having a particular view toward the German reform of its law of obligations in 2001.
 
The conference took place at the Chuō University and was organized by the university’s Institute of Comparative Law in Japan in cooperation with the German-Japanese Association of Jurists. Professor Harald Baum (Verlinkung), head of the Japan Unit at the Max Planck Institute for Comparative and International Private Law undertook to organize the German component of the conference. Professor Makoto Tadaki, Director of the Institute of Comparative Law at the Chuō University in Tokyo, was responsible for the Japanese component. The conference proceedings and discussions on Germany’s experience during its modernization of the law of obligations more than 10 years ago were followed with particular interest by representatives of Japans Ministry of Justice among others. 
 
Presently, Makoto Tadaki and Harald Baum have published the corresponding conference volume: “Saiken-hō kaisei ni kansuru hikaku-hō-teki kentō – nichidoku no shiten kara / Schuldrechtsmodernisierung in Japan – eine vergleichende Analyse” [The Modernization of the Law of Obligations in Japan – A Comparative Analysis]. The German and Japanese papers presented at the conference are printed alongside comments written in the respective language of the speaker. Translated summaries of each speaker’s address are additionally included.

It is expected that the legislative reforms regarding the Japanese law of obligations will be enacted in the course of the coming year. In August 2014 the final report of the Japanese Reform Commission was released.

Makoto Tadaki, Harald Baum (eds.), Saiken-hō kaisei ni kansuru hikaku-hō-teki kentō – nichidoku no shiten kara / Schuldrechtsmodernisie­rung in Japan – eine vergleichende Analyse, Chuo University Press, Tokyo 2014, 439 pages.

2014-09-09 – Private International Law in Mainland China, Taiwan and Europe – conference volume published

"Private International Law in Mainland China, Taiwan and Europe" published by Mohr Siebeck


Over the last decades, private international law (PIL) has become the target of comprehensive codification efforts in numerous countries. Included in their number are Taiwan and mainland China. This just-published volume collects the papers presented at a conference held at the Max Planck Institute for Comparative and International Private Law which considered current developments in private international law in Europe, mainland China and Taiwan; included as well are English translations of the relevant Chinese legal instruments. The work has been edited by Jürgen Basedow, Director at the Max Planck Institute for Comparative and International Private Law, and Knut Benjamin Pißler, Head of the China Unit at the Max Planck Institute for Comparative and International Private Law.

 

The new conflict-of-law rules enacted in mainland China and Taiwan frequently orient themselves on continental European concepts given that the past decades have seen PIL subject to systematic codification in Europe – a trend that can be observed also on the global level. The extent to which European codification efforts were drawn upon for the recent reform of Chinese PIL legislation and the areas which, in turn, lawmakers forged their own path is explored in the presently published volume. The submissions have been authored by leading legal scholars from mainland China, Taiwan and EU Member States.

 

Jürgen Basedow, Knut Benjamin Pißler (eds.), Private International Law in Mainland China, Taiwan and Europe, Mohr Siebeck, Tübingen 2014, 470 pages; ISBN 978-3-16-153356-3

2014-08-18 – 70th German Jurists’ Conference: Executive Liability Reform in the Light of Comparative Law

The corporate law section of the 70th German Jurists’ Conference in mid-September will be taking up the question of manager liability. Holger Fleischer, Director of the Max Planck Institute for comparative and international private law has examined the matter in three major academic journal articles.

 

The first contribution looks at the much disputed limitations to liability and liability caps. It shows that the attention garnered by liability cases with enormous compensation payouts in the United States (Van Gorkomm,1985) and in Japan (Daiwa Bank, 2000) has provided the impetus for easing executive liability by allowing relevant clauses be included in the articles of association. The article also goes on to explore an alternative approach in the long standing UK tradition: according to s. 232 Companies Act 1929, any provision protecting directors from liability are void.

Holger Fleischer, Ruinöse Managerhaftung: Reaktionsmöglichkeiten de lege lata und de lege ferenda, Zeitschrift für Wirtschaftsrecht 2014, 1305 - 1316.


The second contribution explores time limitations on manager liability. The jurisdictions under examination fall into four groups, characterised by their shared conceptual approaches (1) Austria and Switzerland have a mixed subjective-objective regime for liability claims against executive bodies; (2) France and Belgium differ from their continental corporate law brethren in that they suspend the time period for deliberate concealment of breaches of duty until such breaches have been discovered; (3) Italy and Spain are characterised by a shared view that the termination of appointment constitutes a legally significant break in the limitation period from a legal perspective; (4) in the UK and the US the time limitations are considered to be a matter of procedural law; in principle, an objective time frame for liability claims against executive bodies begins with the damaging act or conduct, although the limitation period may be extended or suspended for instances of fraud or deliberate concealment. The article goes on to make some suggestions for improving the German law.

Holger Fleischer, Verjährung von Organhaftungsansprüchen: Rechtspraxis - Rechtsvergleichung - Rechtspolitik, Die Aktiengesellschaft 2014, 457 - 472.


A third article examining whether codification is a suitable approach to some case law principles aimed at manager liability. There are numerous suggestions to codify for example the "legal judgment rule", or the "reliance defence", or fixing the principles of trust into clearer, more specific terms, or the creation and limitation of compliance duties. The article argues that these suggestions are not convincing, calling instead for a clearer fleshing out of the specific duties of directors. In keeping with the nationally and internationally recognised taxonomy of directorial duties, §§ 93 (1) sentence 1 AktG, and 43 (1) GmbHG should be standardised to include the duty of loyalty alongside the duty of care. The legislative basis of the principle of collective responsibility is also of great practical significance, as many GmbH directors are unaware of its implications. 

Holger Fleischer, Reformperspektiven der Organhaftung: Empfiehlt sich eine stärkere Kodifizierung von Richterrecht?, Der Betrieb 2014, Heft vom 28.8.2014.

2014-08-12 – The Dower in Family Property Law

Nadjma Yassari publishes monograph on the dower in family property law


The dower (mahr) is a central element of classical Islamic marriage law and vests wives with a property law claim valid against their husbands. It is an institution unknown to German law, yet German judges often must rule on dower claims when they are raised in German courts.


In her recently released monograph “Die Brautgabe im Familienvermögensrecht – Innerislamischer Rechtsvergleich und Integration in das deutsche Recht” (The Dower in Family Property Law – Inner-Islamic Comparison and Incorporation in German Law), Nadjma Yassari considers the legal institute of the dower from three different perspectives: in classical Islamic law, in the contemporary law of selected Islamic countries, and in German law. The function of the dower within the marital property law thus stands as a focal point of the work.

Nadjma Yassari, who has since 2009 headed the Max Planck Research Group “Changes in God’s Law: An Inner-Islamic Comparison of Family and Succession Law”, explores in her monograph the foundations and historical development of the Islamic dower (mahr) and considers it in the context of the family property law of Egypt, Iran, Pakistan and Tunisia. While property law relations between spouses have been the subject of continual development, the impact of these reforms has been weak: the principle of post-marital solidarity is only marginally anchored and a significant social safety net does not exist. As a consequence, the dower continues to play an important role in filling gaps in financial and social support. In light of this appreciation, the work continues on to address the incorporation of the mahr into private international law and German family law.

Nadjma Yassari, Die Brautgabe im Familienvermögensrecht – Innerislamischer Rechtsvergleich und Integration in das deutsche Recht, Mohr Siebeck, Tübingen 2014, 1030 pages, ISBN 978-3-16-153423-2

2014-07-04 – The Canadian Shrimp Fisherman and Private International Law

Ruling of Supreme Court of Canada extensively cites IMPRS Maritime Affairs dissertation

 

It stands as quite likely that the Canadian shrimp fisherman who cut through an underwater cable while out on the St. Lawrence River had never heard of the Max Planck Institute for Comparative and International Private Law. Yet it is the Institute which he now must thank for having helped to reduce his liability to 500,000 Canadian dollars from the nearly one million initially claimed by the victim of the act. For the cable he believed to be in disuse was in fact a live fiber-optic cable.


In clarifying the questions surrounding limitation of liability and the standard of fault, the sources drawn upon by the Supreme Court of Canada included the dissertation “Wilful Misconduct in International Transport Law“ (IMPRS for Maritime Affairs), authored by Institute Research Fellow Duygu Damar. Extensively quoted in the recent opinion issued by the Court, their reliance on the work illustrates that the fundamental research conducted at the Max Planck Institute for Private Law in Hamburg closely models problems encountered in the real world.

 

Although not adopting her findings in every regard, at multiple points in their ruling, the judges refer to Duygu Damar’s analysis of the London Convention on the Limitation of Liability for Maritime Claims and her comparative consideration of the topic of wilful misconduct.

 

While the ruling allows the fisherman to limit his liability to 500,000 Canadian dollars, he will not benefit from insurance benefit as, in the view of the Court, he frivolously cut through the cable. In this respect, the opinion of the Court diverges with that of the Institute researcher. Damar observes: “In my view, the fisherman did not act wilfully or recklessly and with knowledge that such damage would occur. His recollection was that a museum map indicated the cable as non-operational. When he later read in the newspaper that the perpetrator of the act was being sought, he contacted the police.” As such, she believes his action could at most be characterised as grossly negligent which would mean that his insurance coverage would be applicable and he would not himself be responsible for paying 500,000 Canadian dollars.

 

Duygu Damar authored her dissertation “Wilful Misconduct in International Transport Law” as a scholar of the International Max-Planck Research School (IMPRS) for Maritime Affairs at the Max Planck Institute for Private Law in Hamburg. The work featured an in-depth analysis of when liability limitations can be broken and the fault standard applied in various legal systems. The inquiry is sometimes of importance also for passenger ships. After the accident involving the “Costa Concordia“, Damar authored an article for the journal Verbraucher und Recht (“Consumers and the Law”) discussing the breaking of limits of liability.

2014-05-27 – “The Limits of Self-Commitment in Private Law” – Post-doctoral dissertation by Klaus Ulrich Schmolke published

In his post-doctoral dissertation “Grenzen der Selbstbindung im Privatrecht” (The Limits of Self-Commitment in Private Law), Prof. Dr. Klaus Ulrich Schmolke LLM (NYU) considers the “paternalism paradox” as encountered in private law. For in spite of the fact that the Enlightenment-based ideal of free and self-determined individuals forms one of the conerstones of German private law, the number of paternalistic laws in civil law is steadily on the rise.

 

The work sees Klaus U. Schmolke trace the requirements and limits of paternalistic intervention in the freedom of contract. Using the insight gained from this effort and drawing on decision-making theory as found in the field of behavioral economics, he develops a concept of the conditions justifying legal paternalism in private contractual relationships.

 

Prof. Dr. Klaus Ulrich Schmolke LLM (NYU), former research fellow at the Max Planck Institute of Comparative and International Private Law has been a professor at the Friedrich-Alexander University at Erlangen-Nürnberg since the summer semester 2013. There he holds the chair for civil law, commercial law, company law and business law. Among his former activities as an Institute fellow he was responsible for the regional unit focused on the law in Switzerland. After being awarded his professorial qualification (Habilitation) at Bucerius Law School in Hamburg, he served initially as acting professor at the Philipps University in of Marburg.

 

Klaus U. Schmolke, Grenzen der Selbstbindung im Privatrecht – Rechtspaternalismus und Verhaltensökonomik im Familien-, Gesellschafts- und Verbraucherrecht [The Limits of Self-Commitment in Private Law. Legal Paternalism and Behavioral Economics in Family Law, Corporate Law and Consumer Law.] Mohr Siebeck, Tübingen 2014, 1030 pages, ISBN 978-3-16-151971-0 (Published in German)

2014-05-21 – "Why Succession Law? – The Intergenerational Transfer of Wealth and Its Law in Functional Perspective” published by Mohr Siebeck

The recently published post-doctoral dissertation Prof. Dr. Anatol Dutta, M. Jur. (Oxford) considers questions surrounding both the meaning and aim of succession law as well as its design. The inquiry is prompted by the increasing appearance of mechanisms which allow individuals to remove their assets from the scope of succession law. Private foundations in Germany, Austria and Lichtenstein as well as dynamic trusts in the United States and numerous offshore jurisdictions allow owners to subject their assets to rules of their own design which extend across generations.

 

Accordingly, adopting a comparative and interdisciplinary approach, Anatol Dutta explores whether the law of succession continues to serve any meaningful function for society, the economy and families and how these functions can be protected by limiting the power of individuals to tie up their property.

 

Prof. Dr. Anatol Dutta, M. Jur. (Oxford) has held the Chair for Civil Law, Private International Law and Comparative Law at the University of Regensburg since the summer semester 2014. The work on his book was completed during his time as a research fellow at the Max Planck Institute for Comparative and International Private Law. His research emphases include private international law and comparative law with a particular focus on family and succession law. Anatol Dutta studied law in Munich and Oxford. He was a visiting fellow at Cambridge (2009) and served as a guest lecturer at Adam Mickiewicz University in Poznań (since 2005), the Vienna University of Economics and Business (2007), Kyushu-University Fukuoka (2012) and the University of Auckland (EUCN Visiting Fellowship 2013).

 

Anatol Dutta, Warum Erbrecht? – Das Vermögensrecht des Generationenwechsels in funktionaler Betrachtung, Mohr Siebeck 2014, 682 pages, ISBN 978-3-16-152728-9 [Published in German]

2014-05-16/17 – Collective bargaining agreements, the right to strike, codetermination – Where is collective labour law heading in the era of globalisation?

International conference on collective bargaining at the Max Planck Institute for Comparative and International Private Law

 

Collective bargaining is evolving in the course of globalisation. One can in the process identify a certain flexibilisation, decentralisation and Europeanisation. At the two-day conference at the Max Planck Institute for Private Law, legal scholars from Finland, Sweden, the Netherlands, France, Germany, China and England delivered papers exploring just where national labour law faces its limits in a globalised labour market. In so doing, the speakers examined in comparative perspective the peculiarities and differences of their own respective national labour law regimes.

 

Topics considered included the role of collective labour law alongside employment contracts and state legislation, the so-called Nordic model of labour law in Scandinavia, the difference between collective bargaining agreements (Tarifverträge) and works agreements (Betriebsvereinbarungen) in Germany, the concept of collective bargaining in English law, the influence of European law on the right of industrial action under national law, and the protection of workers as encountered in Chinese labour law.

 

A more detailed conference report (in German) can be found here.

2014-05-09 – Transformation through reception? – The adoption of western legal institutions by nations of the Caucasus and Central Asia.

“Transformation through Reception? – The Potential and Limits of Legal Transplants as Exemplified by the Civil Law Reforms in the Caucasus and in Central Asia” – new work published by Mohr Siebeck with the support of the Volkswagen Foundation.


After the collapse of the Soviet Union, the newly established countries of Central Asia and the Caucasus found themselves needing fundamental reform in their legal and social systems. A period of transformation began, one moving away from state-oriented principles and toward an increase of market- and private law structures. The comprehensive reorganisation which resulted stands as a promising opportunity to study the phenomenon of legal transplants. For the reforms which have been implemented are shaped by their clear orientation on western models.

In the collective volume edited by Dr. Eugenia Kurzynsky-Singer, “Transformation durch Rezeption? – Möglichkeiten und Grenzen des Rechtstransfers am Beispiel der Zivilrechtsreformen im Kaukasus und in Zentralasien” [“Transformation through Reception? – The Potential and Limits of Legal Transplants as Exemplified by the Civil Law Reforms in the Caucasus and in Central Asia”], a theoretical model explaining the operation of legal transplants is advanced, thereby facilitating predictions as to their likelihood of success. In the course of this inquiry, a central point of emphasis becomes the question how these borrowed norms and ideas mutate through the process of reception and how they may change the receiving legal system.

This model, developed by Eugenia Kurzynsky-Singer, has as its foundation the results of several individual studies completed by junior researchers from countries of the Caucasus and Central Asia which examine selected legal questions regarding their native legal systems, studies which are similarly published in the volume at issue. Through the support of the Volkswagen Foundation, eight legal scholars – from Georgia, Kazakhstan and Uzbekistan – had the chance to conduct research at the Max Planck Institute for Private Law on a topic in the area of civil or business law in their home countries within the framework of the post-graduate scholarship programme “Comparative Legal Research on Eurasian Law” . In the process they received in-depth supervision from the German scholars working in connection with the project . This cooperation between the German side of the project  and the scholarship recipients allowed various perspectives to be taken into account. Accordingly, the question of comparative law, particularly the borrowing done from European legal systems, assumed a central role and facilitated the target analysis of the legal reception process.  

The publication of the volume marks the completion of the project “Comparative Legal Research on Eurasian Law”,  which in addition to the scholarship programme and the publication of this volume included the staging of an international conference .

Eugenia Kurzynsky-Singer (ed.), Transformation durch Rezeption? Möglichkeiten und Grenzen des Rechtstransfers am Beispiel der Zivilrechtsreformen im Kaukasus und in Zentralasien, Mohr Siebeck, Tübingen 2014, 512 pages.; ISBN 978-3-16-153319-8

 

2014-03-13 – “The Methodology of European Union Law” – Post-doctoral dissertation of Sebastian A.E. Martens published

Sebastian A.E. Martens develops in his post-doctoral dissertation a methodology of Union law which can be integrated with the various legal traditions of the Member States. In the process he brings together the – thus far – rather independent discourses which have taken place at the national level, as the legal methodologies in the European regimes exhibit vast differences.

 

Martens determines the content of his methodology autonomously as a foundational theory for judges applying Union law. The content of this Union law is first identified on the basis of a new and distinct theory of legal sources; subsequently, having recourse also to comparative and legal-historical analysis, Martens elaborates on how one can derive arguments from these legal sources which may be of relevance in disputes over the optimal solution of issues arising in Union law.

 

Priv.-Doz. Dr. Sebastian A.E. Martens is a senior research fellow at the Max Planck Institute for Comparative and International Private Law. He studied law in Constance and Oxford. On 4 July 2012 he was conferred his post-doctoral degree by the Law Faculty of the University of Regensburg. He received his lecture qualification in the areas of civil law, legal theory, Roman law, private law history and comparative law. He has been serving as acting professor at the Universities of Passau and Osnabrück since the winter semester 2012/2013.

 

Sebastian A.E. Martens, Methodenlehre des Unionsrechts, Mohr Siebeck, Tübingen 2013, 628 Seiten, ISBN 978-3-16-153106-4

2014-03-12 – Collective volume published: German, Austrian and Swiss Company and Capital Markets Law 2013.

Current and foundational topics of German, Austrian and Swiss company and capital markets law are considered in this collective volume edited by Holger Fleischer, Director at the Hamburg Max Planck Institute for Comparative and International Private Law, together with Susanne Kalss, Vienna University of Economics and Business, and Hans-Ueli Vogt, University of Zurich.


The publication stems from the third annual meeting of German-speaking company and capital markets law scholars, conducted in May 2012. Issues treated included corporate group law and liability, corporate governance, business valuations, transformation of business entities, and the prohibition of market manipulation and its enforcement. A conference volume from the fourth symposium, held in Zurich in 2013, is in preparation.

Susanne Kalss/Holger Fleischer/Hans-Ueli Vogt (eds.), Gesellschafts- und Kapitalmarktrecht in Deutschland, Österreich und der Schweiz 2013, Mohr Siebeck, Tübingen 2014, VIII und 278 pages.

2014-03-12 – Collaborative Work Published: “Corporate Boards in Law and Practice”

Management boards, administrative boards and boards of directors significantly shape the corporate culture of German and international firms. These boards play a central role in the management and control of firms. Just how central this role is can be seen, for instance, in the skirmishes that ensued when accountability was demanded of the Berlin Airport’s supervisory board as regards responsibility for the massive cost overruns, building defects and multi-year delays in the opening of the airport. The duties and obligations of supervisory boards and directors are as a general rule comprehensively regulated in the individual nation’s stock corporation laws or corporate governance codices, yet differences at the European level are sometimes quite fundamental.


Prof. Klaus J. Hopt, former Director of the Max Planck Institute for Comparative and International Private Law has, in a cooperative effort with his colleagues Paul Davies from the University of Oxford, Richard Nowak from Amsterdam and Gerard van Solinge from the Radboud University Nijmegen, published a  carefully differentiated analysis of these various structures. With the Book “Corporate Boards in Law and Practice” the authors have produced a work for scholarship and practice which aims to pay heed to theoretical considerations while simultaneously providing description, explanation and access to basic regulatory and functional aspects of management and control of modern corporations in individual countries.

Leading company law scholars from nine Member States of the European Union and Switzerland were recruited as participants for this European research project. The resulting “Forum Europaeum Corporate Boards“ (FECB) met under the leadership of Davies, Hopt, Nowak and van Solinge numerous times between 2009 and July 2013 in Amsterdam, Hamburg und Oxford. On the basis of initial country reports the Forum formulated a uniform scheme of analysis, the foundational structure of the general report and the final country reports.
The method of inquiry was not that of a conventional comparative inquiry which was doctrinally oriented and in search of differences in the national stock corporation laws; rather, a functional methodology was adopted. A comparison was made not only as to the functioning of the respective stock corporation laws but also in respect of the relevant codex rules and trade practice. This was done with regard for economic theory and, above all, the actual stock corporation laws and codex practice encountered in the various nations. 

Paul Davies, Klaus J. Hopt, Richard Nowak, Gerard van Solinge (eds.), Corporate Board in Law and Practice, Oxford University Press, Croydon 2013, 818 pages; ISBN 978-0-19-870515-4

2014-03-06 – Conference volume “Reforming the Law of Obligations and Company Law: Studies in French and German Law” published

Walter Doralt from the Max Planck Institute for Comparative and International Private Law has together with his French colleague Olivier Deshayes co-edited the volume “Reforming the Law of Obligations and Company Law – Réformer le droit de Obligations et le droit des Sociétés”. Serving as the foundation for the book are papers delivered at the conference “Droit privé français: Réformes et Perspectives de droit comparé”, an academic gathering held in November 2012 at the MPI for Private Law.

 

The collective volume intends to offer selected perspectives on the reform of the law of obligations and company law as well as business insolvency law in France and Germany. Adopting various approaches, all of the contributions address the competition of legal systems. At the centre of the focus is the influence of the legislation of the European Union and other Member States on French and German reform efforts.

Reinhard Zimmermann, Director at the Max Planck Institute for Comparative and International Private Law, considers in his entry the German reform of the law of obligations (“Réforme du droit des contrats: l’expérience allemande”). Guillaume Meunier, Head of the Law of Obligations Division of the French Ministry of Justice, writes on the current reform of the French law of obligations. Although the draft for a comprehensive reform of the law of obligations in France had long since been prepared, it was only shortly after the publication of this work that the political process was set into motion.

Other contributions similarly treat civil law topics: Martine Béhar-Touchais (Université Paris I, Panthéon Sorbonne) examines questions related to the modification of long-term contractual relations. Carole Aubert de Vincelles (Université Cergy-Pontoise) and Philipp Eichenhofer (Max Planck Institute for Comparative and International Private Law) have authored comparative essays on the topic of “rupture abusive”.

Dorothée Gallois Cochet (Université Paris Dauphine), Marie Caffin-Moi (Université Cergy-Pontoise), Rüdiger Veil (Bucerius Law School), Rainer Kulms and Walter Doralt (Max Planck Institute for Comparative and International Private Law) explore issues of company and capital markets law and compare certain aspects of the recent French and German reforms. The submission of Andra Cotiga (Université Catholique de Lille) directly considers the competition of legal systems. In so doing, her effort pays particular attention to French company law. Felix Steffek (Max Planck Institute for Comparative and International Private Law), by contrast, analyses a case encompassing restructuring and insolvency law issues and looks at concrete questions arising in respect of restructuring migration.

The contributions are authored in either English or French with the specific language being chosen such that topics which are deemed of particular relevance to French legal scholars have been written in French so as to also facilitate their consideration in the national discourse. Conversely, topics on French law – for which adequate English-language sources seldom exist – have been authored in English.

The book aims to contribute to improved mutual understanding and legal dialogue. It appears in the Trans Europe Experts Series of the Société de législation comparée.

Walter Doralt, Olivier Deshayes (eds.), Reforming the Law of Obligations and Company Law – Réformer le droit des Obligations et le droit des Sociétés, Collection Trans Europe Experts, Société de législation comparée, Paris 2013. ISBN 978-2-36517-021-5

2014-01-31 – Volume III of the Historisch-kritischer Kommentar zum BGB published

The third volume of the Historisch-kritischer Kommentar zum BGB (Historical Commentary on the German Civil Code) has been edited by Reinhard Zimmermann, Director at the Institute, together with Mathias Schmoeckel and Joachim Rückert. A central object of the work is to identify the specific intellectual profile of the BGB as well as the judicial and doctrinal development that has occurred on its basis and against the background of the historical tradition of private law, at times reaching as far back as Roman law. Volume III of the Historisch-kritischer Kommentar, comprising two separately bound parts, addresses the Special Part of the Law of Obligations (§§ 433–853). Volume I on the General Part of the BGB was published in 2003; Volume II (also in two parts) was released in 2007 and covered the General Part of the Law of Obligations.

 

Against the background of an emerging Europeanisation of private law, the Historisch-kritischer Kommentar takes on a special significance. For a European private law system will, consciously or unconsciously, be built upon historical foundations. Numbering among these foundations today are primarily the national codifications and the case law and legal doctrine engendered by them. These national legal structures must, for their part, be subjected to a critical examination which explores their underlying premises. How did they come into existence? What traditions and understandings have shaped them? Have they stood the test of time or been subject to revision over the course of the years? What experiences have we made with them in Germany? Where are similarities and differences to be found in identifying and solving problems before the BGB, in the BGB and since the enactment of the BGB? How is our private law holding up in the light of the new challenges facing Europe?

 

All of these questions can only be answered in historical perspective, including significant cultural, economic and social factors. At the same time, the Historisch-kritischer Kommentar invites comparative inquiry; for the solutions found in the German Civil Code are more than merely the sum of its doctrines; they also constitute a decision against other possible solutions that could have been adopted and that can actually be found in other legal systems.

 

“The Historisch-kritischer Kommentar focuses on continuities as much as discontinuities, and it does so from a historical-comparative perspective,” explains Reinhard Zimmermann. “Such a historical-comparative perspective is required not only for a better understanding of contemporary German law but also for the reconstitution of a European private law.”

 

The Historisch-kritischer Kommentar is a project which will encompass a total of six volumes. Volume III saw the participation of 22 authors, including Reinhard Zimmermann and Jens Kleinschmidt, former Institute Research Fellow.

 

Mathias Schmoeckel, Joachim Rückert, Reinhard Zimmermann (eds.), Historisch-kritischer Kommentar zum BGB Band III: Schuldrecht. Besonderer Teil: §§ 433-853, Mohr Siebeck Verlag, Tübingen. Two parts. ISBN 978-3-16-150528-7.

2014-01-29 – Max Planck Society renews Research Group exploring “Changes in God’s Law”

11.02.14

Since 2009 Nadjma Yassari has led the Research Group titled “Changes in God’s Law: An Inner-Islamic Comparison of Family and Succession Law” at the Max Planck Institute for Comparative and International Private Law. In light of the Group’s successful work – unique in Europe – the Max Planck Society has authorised the continued efforts of the Research Group through 2016. The most recent milestone enjoyed as part of the project was the conference The Dynamics of Legal Development in Islamic Countries – Family and Succession Law, in which the Research Group presented its findings to an international audience and discussed perspectives on the further development of family law in Islamic countries – not least on account of the upheaval seen in the context of the Arab Spring.

 

The Max Planck Research Group on Family and Succession Law in Islamic Countries is presently one of the world’s few research units considering family law in Islamic countries both from a legal as well as a socio-cultural perspective. This interdisciplinary approach allows a comprehensive and thus more complete look at the subject. Simultaneously, the Arab Spring and the political changes it has brought to many Islamic countries open new lines of academic and legal inquiry to the Research Group.

“We are deeply pleased to see the Research Group granted a two-year extension,” commented Nadjma Yassari. “Beyond being an acknowledgement of the work we have accomplished thus far, it offers us the chance to meaningfully consider the legal consequences occasioned the upheaval currently being experienced in the region. In turn, this allows us to further challenge the myth of Islamic law’s immutability.”

 

International Academic Conference Held by Research Group

From 17 to 19 October 2013, under the leadership of Nadjma Yassari, the Research Group hosted an international academic conference at the Institute titled “The Dynamics of Legal Development in Islamic Countries – Family and Succession Law”. More than 70 scholars and practitioners from 20 countries accepted the invitation of the Research Group and participated at the event. The members of the Group presented their findings and the current status of their research and discussed perspectives for the continued development of family law with renowned scholars and practitioners from in- and outside Germany. A particular focus of the conference fell on the different means by which law evolves in family and succession law and on the actors who influence this process. So as to trace the dynamic of this legal process, developments in individual countries were first detailed and then, in subsequently conducted parallel workshops, more in-depth consideration was given specifically to the main actors behind legal change: the legislators, the parties (by means of private autonomy) and the judiciary.

 

Publication of the conference papers is anticipated for 2015.

 

Further Information:

 

Aims and projects of the Research Group

Conference Report on The Dynamics of Legal Development in Islamic Countries – Family and Succession Law

2014-01-09 – Collaborative English-language Volume “Regulating the Closed Corporation” Published

Holger Fleischer, Director at the Max Planck Institute for Comparative and International Private Law, is a co-editor of the recently published collaborative volume Regulating the Closed Corporation. In 2012, in connection with the efforts of a five-person research group, he was a co-editor of the study titled Rechtsregeln für geschlossene Kapitalgesell­schaften, a German-language work examining the globe's most frequently encountered company law forms. With the English version of the study, Gregor Bachmann (FU Berlin), Horst Eidenmüller (LMU München), Andreas Engert (Universität Mannheim), Holger Fleischer and Wolfgang Schön (MPI for Tax Law and Public Finance) have made their groundbreaking contribution to the modernisation of the rules on closed corporations accessible to an international audience.

 

Notwithstanding the economic significance it holds as the preferred corporate form of small and mid-sized firms, the closed corporation is frequently subject to only minimal academic discussion and has thus been dubbed "the orphan of corporate law". At the same time, however, many European countries have in recent years amended and modernised their laws on the closed corporate form. It is against this background that the authors have jointly undertaken a first attempt at formulating principles of closed corporations in Europe independent of any specifically existing laws or proposals. The examination systematically addresses the typical areas of cross-border conflict with regard to closed corporations. In doing so, legally-based comparative experience and findings from business economics are applied with recurring consideration being given to the European private company (SPE).

 

Gregor Bachmann, Horst Eidenmüller, Andreas Engert, Holger Fleischer, Wolfgang Schön (eds.), Regulating the Closed Corporation, De Gruyter, Berlin 2014, 266 pages.; ISBN 978-3-11-028643-4

2013
2013-12-10 – Institute participates in completing the German translation of the new Brazilian Civil Code

The new Código Civil Brasileiro which entered into force in 2002 after decades of preparation is the central source of Brazilian private law. Now, in an effort spurred forward and assisted by Brazil expert Jan Peter Schmidt , senior research fellow at the Max Planck Institute for Comparative and International Private Law, the first complete German translation of the Code has been brought to conclusion by Zurich attorney Burkard J. Wolf.

 

The work makes the foundations and details of Brazilian civil and commercial law widely accessible to both legal practitioners and interested academicians. Featuring introductory notes and numerous annotations, not only the meaning and interaction of the Code’s rules is made clear to readers but also the manner in which the rules deviate from German and Swiss private law.

 

The translation is preceded by an extensive introduction written by Jan Peter Schmidt which details the historical development and principles underlying the Brazilian Código Civil. “The entangled reform process strongly shaped the Code and represents a key to its understanding. At the same time, it mirrors the eventful history of Brazil in the 20th century”, explained Schmidt, who also serves as a board member of the German-Brazilian Lawyers’ Association (DBJV) beyond his activities at the Institute. His 2009 dissertation Zivilrechtskodifikation in Brasilien – Strukturfragen und Regelungsprobleme in historisch-verglei­chender Perspektive (The Codification of Private Law in Brazil. Structural Issues and Regulatory Problems from a Historical and Comparative Perspective) was awarded the Otto Hahn Medal of the Max Planck Society.

 

Das Brasilianische Zivilgesetzbuch 2002 appears as a self-contained volume in the publication series released by the German-Brazilian Lawyer’s Association. The series was until 2000 overseen by former Institute research fellow Jürgen Samtleben , who headed the Latin America Unit from 1971 to 2002 prior to his retirement. Beginning in 2014, the publication series of the German-Brazilian Lawyer’s Association, now totalling 47 volumes, will be edited by Jan Peter Schmidt.

 

Burkard J. Wolf, Das Brasilianische Zivilgesetzbuch 2002, Deutsche Übersetzung und Anmerkungen, Shaker Verlag, Aachen 2013, ISBN 978-3-8440-2184-4

2013-10-23 – Legal Transfers in Japan und Deutschland

The 150th anniversary of the Prussian/Japanese agreement signed in 1861 which established bilateral relations between the nations was cause for commemorative celebrations in Germany as well as Japan. The close relationship enjoyed by Germany and Japan in the areas of law and legal scholarship has played a not insignificant role in cementing the friendship shared by the two nations over the last 150 years. The anthology resulting from the symposium “150 Jahre Freundschaft Japan-Deutschland” (150 Years of Japanese-German Friendship) presents, through a legal lens, the significant milestones witnessed during this period.

 

The comparative law conference held at the facilities of the University of Tokyo in November 2011 was sponsored by the Alexander von Humboldt Foundation, the German Academic Exchange Service, the Japanisch-Deutsches Zentrum Berlin and the Keio University. In addition to playing a significant role in organising the content of the conference, Harald Baum, Head of the Japan Unit at the Max Planck Institute for Comparative and International Private Law, co-edited the volume along with Moritz Bälz (Frankfurt) and Karl Riesenhuber (Bochum). The work, published as a special issue of the Zeitschrift für Japanisches Recht/Journal of Japanese Law, presents the edited conference papers of the 23 conference speakers representing academia and practice.

 

Arranged in five chapters, the volume covers the significant facets of the German-Japanese legal relationship, beginning with the reception of German law in Japan in the 19th century, moving forward across the post-1945 Americanisation of the economic law of both nations and proceeding on to current questions such as the modernisation of the law of obligations and the legal transfers originating in Japan and Germany which were received by reform-implementing nations in Asia and Eastern Europe. A concluding chapter offers submissions considering the logic and limits of a comparative approach in respect of criminal law.

 

Harald Baum, Moritz Bälz und Karl Riesenhuber (Hg.), Rechtstransfer in Japan und Deutschland (Zeitschrift für japanisches Recht, Sonderheft 7), Carl Heymanns Verlag, Köln 2013, VIII + 365 pp.

2013-10-07 – Regulating Dispute Resolution – Orientation within a Broad Spectrum

International research group formulates regulatory principles for scholars and legislators

The possibilities for the legal resolution of conflicts are manifold. Alongside contested court proceedings one finds alternative dispute resolution mechanisms such as contractual negotiation, mediation, conciliation, expert opinion, ombudsman procedure and arbitration. Should conflict resolution procedures be based upon an overarching set of regulatory principles? Can such principles meaningfully contribute to the creation of a regulatory framework at the national and international level? An international research group answers these questions in the affirmative and advances proposals for a principle-based regulation of dispute resolution.


Felix Steffek, Senior Research Fellow at the Hamburg Max Planck Institute for Comparative and International Private Law, is co-editor of the just-released volume Regulating Dispute Resolution, Hart Publishing, Oxford. In this work, the authors present a transnational Guide for Regulating Dispute Resolution (GRDR). The GRDR contains a set of principles and comments on the regulation of individual conflict resolution mechanisms. The publication aims to support national and international legislative activities and contribute to the discussion surrounding a just and consistent scheme of conflict resolution. The book is the result of a Thyssen Foundation funded project which included a conference held in Bayreuth in September 2012.
 

The recommendations are derived from an analysis of the regulatory models, empirical data and conflict resolution theories of 12 countries: Austria, Belgium, Denmark, England, France, Germany, Italy, Japan, Netherlands, Norway, Switzerland and the USA. “The principle-based regulation of conflict resolution is premised upon a functional taxonomy of conflict resolution procedures, an open normative framework of justice and a modular identification of regulatory themes,” summarises Felix Steffek as to the approach taken by the research group. Among other suggestions, the authors make regulatory proposals on the choice of conflict resolution procedures, the effectiveness of dispute resolution clauses, procedural costs, confidentiality, the enforceability of conflict solutions, the qualification and neutrality requirements for third party intervenors and the particular demands posed by consumer conflicts. The full text of the GRDR can be found here.
 

Regulating Dispute Resolution – ADR and Access to Justice at the Crossroads

Edited by Felix Steffek and Hannes Unberath in cooperation with Hazel Genn, Reinhard Greger and Carrie Menkel-Meadow

Hart Publishing, Oxford 2013, 490 pages

Authors: Lin Adrian, Aldo de Matteis, Giuseppe De Palo, Frédérique Ferrand, Hazel Genn, Reinhard Greger, Jana Härtling, Burkhard Hess, Ulrike Janzen, Shusuke Kakiuchi, Lars Kirchhoff, Peter Mayr, Isaak Meier, Carrie Menkel-Meadow, Kristin Nemeth, Ashley Oleson, Machteld Pel, Nils Pelzer, Katherine Pleming, Shiva Riahi, Anneken Sperr, Felix Steffek, Hannes Unberath and Ivan Verougstraete

The book is dedicated to the memory of the project initiator, Hannes Unberath, who passed away in January 2013.
 

2013-08-26 – European Takeover Law

As is the case in many other Member States of the European Union, takeover bids are a common phenomenon in Germany. Yet their legal treatment remains subject to disagreement. The EU’s 13th Directive on Takeover Bids is scheduled for revision in 2014. Klaus J. Hopt, former Director at the Max Planck Institute for Comparative and International Private Law, has taken this as occasion to examine the implementation of the Directive in national law.

 

 

In his recently published work Europäisches Übernahmerecht – Eine rechtsvergleichende, rechtsdogmatische und rechtspolitische Untersuchung (European Takeover Law – An Appraisal and Analysis from the Perspective of Comparative Law, Legal Dogmatics and Legal Policy) he scrutinises the commonalities and differences of the national takeover law in significant Member States. The book focuses on mandatory bids, the control threshold, acting in concert, the anti-frustration rule, permissible defences and external corporate governance. Reform proposals are advanced in a concluding section. The work stems from the first Christian Wilde Commemorative Lecture, delivered by Klaus J. Hopt at Bucerius Law School in Hamburg on 7 June 2012.

 

Europäisches Übernahmerecht. Eine rechtsvergleichende, rechtsdogmatische und rechtspolitische Untersuchung, Mohr Siebeck, Tübingen 2013, 121 pp.

2013-08-20 – Conflicts among Shareholders in Closed Corporations

Conflicts among shareholders are the weak spot in closed corporations. Nationally as well as inter­na­tio­nally, the prevention and resolution of such conflicts is assuming increasingly greater significance.

 

The recently published post-doctoral dissertation of Frauke Wedemann analyses how conflict management in closed corporations – in Germany the GmbH – can be systematically improved. On the foundation of a detailed comparative law inquiry (France, Switzerland, United Kingdom and the USA), an expansive mapping of policy considerations and an incorporation of modern economic and sociologial findings, she comprehensively catalogues possible contractual and legislative responses and offers a critical assessment of these various approaches. Furthermore, she broadly examines what options exist for optimising conflict resolution within the framework of state court proceedings.

 

Prof. Dr. Frauke Wedemann, former research fellow at the Hamburg Max Planck Institute for Comparative and International Private Law, has since the winter semester 2012/2013 held a professorial chair for civil law and German, European and international commercial and company law at the Westfälischen Wilhelms-Universität Münster. The present academic work, published in the Institute series Beiträge zum ausländischen und internationalen Privatrecht, was the basis of the professorial degree (Habilitation) she was conferred in 2012 from Bucerius Law School in Hamburg.

 

Gesellschafterkonflikte in geschlossenen Kapitalgesellschaften, Mohr Siebeck, Tübingen 2013, XXXV, 654 pp. (Habilitation, Bucerius Law School Hamburg)

2013-08-15 – The Law of Open Societies

In 2012 the Hague Academy of International Law invited Jürgen Basedow, Director at the Hamburg Max Planck Institute for Comparative and International Private Law, to hold its annual General Course on Private International Law. His series of lectures, delivered as the fourth German scholar in the 90-year history of the Academy who has been honoured with this task, was titled “The Law of Open Societies – Private Ordering and Public Regulation of International Relations”. The monographic treatment which the course entailed has now been published as a book in the series Recueil des Cours de l’Academie de droit international de la Haye.

 

The General Course assumes a special role in the academic programme of the Hague Academy as it aims to consider the global development of private international law from a particular and guiding vantage point. The leitmotif of the course which has been held by Jürgen Basedow is the notion of the open society, whereby the social science dimension of the theme is equally and simultaneously implied. His treatment examines the far-reaching consequences of globalisation for the private ordering of international legal relations. Although in many fields private parties are increasingly afforded a choice of law and thus granted greater leeway in the structuring of their own affairs, mandatory conflict rules continue to frame social values and basic principles. On the whole Basedow argues for a new balancing of, on the one hand, the private ordering of international legal relations and, on the other, public regulation by the state in cross-border affairs. The work concludes with an appeal for restraint on the part of national courts and legislatures in the assertion of mandatory law and with reference to the increasing readiness of courts to respect, under certain conditions, the mandatory law of other nations.

 

The Law of Open Societies – Private Ordering and Public Regulation of International Relations, General Course on Private International Law, Académie de droit international de La Haye/Hague Academy of International Law, Recueil des Cours, Collected Courses of the Hague Academy of International Law 2012, Tome 360, Martinus Nijhoff Publishers, Leiden/Boston 2013, 515 pages

2013-07-25 – In Memory of Lord Rodger of Earlsferry

Reinhard Zimmermann, Director at the Max Planck Institute for Comparative and International Private Law is a co-editor of the recently published anthology Judge and Jurist, written in memory of Lord Rodger of Earlsferry who passed away in 2011. The 47 authors, including pre-eminent legal scholars from Germany and the United Kingdom as well as justices of the British Supreme Court, pay tribute to their friend and colleague who, in addition to his many years of service as attorney, Senior Law Officer of Scotland, Lord President of the Court Session, Lord of Appeal in Ordinary, and Justice of the UK Supreme Court (formerly the House of Lords), also earned world-wide renown as a legal scholar, having begun his professional career as a lecturer in Roman law and having continually remained true to scholarship.

 

The work, arranged in five categories, honours the person of Lord Roger as well as his judicial and academic legacy. 10 contributions consider Lord Roger and his impact on the House of Lords as well as the Supreme Court. Further focal points are found in Roman law and Roman legal history as well as Scots law and legal history. The volume concludes with a series of essays that address recurring themes in the work of the deceased, particularly comparative law, human rights, religious law and legal methodology.

 

Co-editors are Andrew Burrows, Professor at the University of Oxford and Fellow at the All Souls College, and David Johnston, Queen’s Counsel and Professor at the University of Edinburgh. The circle of authors includes Phillip Hellwege (Augsburg), Sonja Meier (Freiburg) and Stefan Vogenauer (Oxford), all former fellows of the Max Planck Institute for Private Law.

2013-05-30 – The Enigma of Legislative Materials

Legislative materials play a not unimportant role in the daily interpretation of legal rules. The significance which should in fact be ascribed to these materials is examined in a conference volume edited by Holger Fleischer, Director at the Hamburg Max Planck Institute for Private Law.

 

The volume assembles the papers of six authors hailing from the fields of academia and practice who attended a 2012 symposium held in Hamburg. With the aim of illuminating the preparation and significance of legislative materials from various viewpoints and thus acquiring a better overall understanding of their role, the topic is approached from comparative, methodological and constitutional law perspectives. The preparation and significance of legislative materials is, furthermore, considered specifically from the standpoint of legislative practice in Germany and Austria.

2013-05-30 – Current Developments in German, Austrian and Swiss Company and Capital Market Law

Current and foundational topics of German, Austrian and Swiss company and capital market law are explored in a recently released conference volume edited by Holger Fleischer, Director at the Hamburg Max Planck Institute for Private Law , together with Susanne Kalss, Vienna University of Economics and Business, and Hans-Ueli Vogt, University of Zurich.

 

The publication combines the papers from a 2011 Hamburg conference which was the second instalment of an annual event bringing together company and capital market law scholars from German-speaking jurisdictions. Topics considered include corporate governance codes, acting in concert in takeover law, shareholder agreements and flexible financial instruments. The contribution of Holger Fleischer on shareholder actions to set aside resolutions of the annual general meeting is a particularly comprehensive and detailed paper which traces the development of this area of law and outlines reform proposals. A conference volume from the third symposium in this series, held 2012 in Vienna, is under preparation.

2013-04-24 – Japanese Business Law in Western Languages – Updated and Expanded Edition of Annotated Bibliography Released

Harald Baum, Head of the Japan Unit at the Max Planck Institute for Comparative and International Private Law, together with Luke Nottage (Sydney), Joel Rheuben (Tokyo) and Markus Thier (Frankfurt) have compiled an updated and substantively expanded new edition of the annotated bibliography Japanese Business Law in Western Languages, first appearing in 1998.

 

Since the comprehensive reception of European and particularly German law during the Meiji Restoration at the close of the 19th century, Japan has incorporated numerous transplants of western law into its legal system along its path to becoming a leading industrial nation. This process creates a number of questions for comparative law scholars, contemplating how these legal transplants have been interpreted and implemented in Japanese law and business. While the connections between modern Japanese law and both European as well as US law are manifold, the language barrier limits the inquiries which can be made by comparative jurists having an interest in the topic. This annotated bibliography, accordingly, enables research by these individuals, creating a systematic listing enabling access to the various and scattered sources of western literature on Japanese law.

 

The work is geared not only to legal scholars researching or teaching in the area of Japanese law, but also to students as well as to practitioners who consult on Japanese business law and are thus dependent on western-language literature. By compiling a bibliography of English, German, French and Italian publications, the editors of the present work hope to offer a broad range of readers an up-to-date inventory of international literature which features significant contributions of Australian, New Zealand and Japanese authors alongside European and North American sources.

 

In deference to the growing volume of literature, the bibliography has seen its size and scope roughly double since its initial release. New areas of coverage include chapters on legal education, communication and information technology law, medical law and real estate law. Additionally, the bibliography is supplemented by a rewritten guide to finding Japanese business law materials via the internet.

 

Japanese Business Law in Western Languages: An Annotated Selective Bibliography. Buffalo: William S. Hein & Co., 2nd Edition, 2013, 450 pages

2013-04-18 – Comparing French and German Company Law and Capital Markets Law

In July 2012 a two-day symposium on company law and capital market law in German and France was held at the Hamburg Max Planck Institute for Comparative and International Private Law on the invitation of Holger Fleischer, Director at the Institute. The papers presented at the symposium have now been collectively published in Volume 1/2013 of the Revue Trimestrielle de Droit Financier (RTDF).

 

In addition to the two foundational contributions offering a comparative look at German and French company law (Holger Fleischer, Bruno Donderot), topics treated include company interests (Didier Poracchia, Christoph Teichmann), groups of companies (Alain Court/Renaud Mortier, Gerald Spindler), acting in concert (Thierry Bonneau/Alain Pietrancosta, Rüdiger Veil) and liability for false capital market information (Marc-Philippe Weller).

2013-03-20 – Free markets and mandatory contract law – A contribution to the law on standard business terms and conditions

 

In a market economy, mandatory contract law fulfils two contradictory roles.  On the one hand, it provides moral and socio-political boundaries in the domain of the markets. In this respect prohibitions on commercialisation, such as the prohibition on trading in human organs or non-dispositive provisions to protect weaker parties in employment and residential property law, are paradigmatic. On the other hand, binding norms often have a market-enabling function: they contribute towards preserving and improving the operating conditions of market mechanisms.

 

The latter category of mandatory law is the subject of a recently published dissertation ‘Freier Markt und zwingendes Vertragsrecht’ [Free markets and mandatory contract law] by Dr. Matteo Fornasier, LL.M. (Yale), Senior Research Fellow at the Institute. By taking account of the findings of institutional economics, he analyses how market failures such as irrational decisions, information asymmetry and opportunistic behaviour can be avoided by limiting contractual freedom. Particular attention is paid to the law of standard business terms and conditions. Using the example of clause control, he shows that in many cases the economic perspectives of mandatory provisions offer valuable insights to finding a solution to disputed issues of applicable law.
 
The book has been published by Duncker & Humblot in its civil law publication series, and has been awarded a research prize by the Esche Schümann Commichau Stiftung.
2013-03-07 – Territorial rights, global action: The CLIP proposals on the international private law of intellectual property rights

 

The smartphone battle: In 2011, this was the global media catchphrase used to describe the legal disputes between manufacturers of smart phones and tablet PCs on four continents. These disputes are just one of many examples of the internationalisation of intellectual property rights. In clear contrast to the progressive globalisation of trade and the increasing importance of the Internet, this area of law is traditionally dominated by the principle of territoriality. A research group set up in 2006 by the Max Planck Institute for Comparative and International Private Law in Hamburg and the Max Planck Institute for Intellectual Property and Competition Law in Munich, comprising scholars from six European states, has drawn up a set of basic rules for the international private and civil procedure law of intellectual property.

 

In the treatise Conflict of Laws in Intellectual Property that has been published by Oxford University Press, the European Max Planck Group on Conflict of Laws in Intellectual Property has published in English the results of its work over the past seven years. The 'Principles on Conflict of Laws in Intellectual Property', known as the CLIP Principles, present a differentiated set of rules that combine questions of jurisdiction, applicable law, and the recognition and enforcement of foreign legal judgments. For each Principle, the publication also includes detailed explanations as regards interpretation and comparative remarks regarding European, North American and East Asian rules.
 
The publishers of Conflict of Laws in Intellectual Property are Jürgen Basedow and Christian Heinze from the Max Planck Institute for Private Law, and Jürgen Drexl and Annette Kur from the Max Planck Institute for Intellectual Property and Competition Law. Pedro de Miguel Asensio, Graeme Dinwoodie, Jean-Christophe Galloux, Axel Metzger, Alexander Peukert and Paul Torremans are also co-publishers.
 
In a global context, the CLIP project is one of the most important projects in the area of the reform of international private and civil procedure law of intellectual property.  In recent years research groups in the USA, where the American Law Institute published a definitive regulatory proposal in 2008, and in Asia have been working on the development of model solutions. In 2009 members of the CLIP group discussed the initial findings of their work at a conference in Tokyo with scholars from a parallel Japanese project.  This exchange was published as Intellectual Property in the Global Arena – Jurisdiction, Applicable Law and the Recognition and Enforcement of Judgements in Europe, Japan and the US by Mohr Siebeck in 2010. A meeting held in Hamburg in 2010 between the CLIP group and representatives of the United Nations Commission on International Trade Law (UNCITRAL) focused on questions of the law of collateral security for intellectual property. The final conference held in Berlin in 2011 generated strong interest amongst practitioners and scholars from three continents, including representatives from the courts and arbitrators and from many international organisations.
 
The full CLIP Principles are published in English, and translated into German, Chinese and Spanish, and are available at: www.cl-ip.eu
2012
2012-12-05 – Comparative study and analysis of principles and regulation of mediation

Klaus J. Hopt, Director Emeritus of the Max Planck Institute for Comparative and International Private Law, and Felix Steffek, Senior Research Fellow at the Institute, have edited the handbook Mediation – Principles and Regulation in Comparative Perspective, which has just been published by Oxford University Press. In this volume, 30 academic authors and practitioners investigate the structure of alternative dispute resolution in 22 countries. This review is embedded in an analysis of the fundamental issues concerning how mediation can and should be regulated at both national and international levels.

 

Flexibility, sustainable conflict solutions, fairness and self-determination in the interest of all parties, time and cost savings, and reduction of court caseloads are the most important arguments in favour of mediation as an alternative to resolving disputes through court proceedings. Across the world there are many different models of a statutory basis and practical application of mediation. In Europe, the EU Mediation Directive adopted in 2008, which was to be implemented by Member States by May 2011, created a mandatory framework for cross-border mediation. As part of the regulation triggered by the Directive, many Member States took the opportunity to integrate mediation into their dispute settlement laws for the first time, or reformed their existing statutory basis for mediation.

Alternative dispute resolution has been the subject of intense comparative legal research at the Max Planck Institute for Private Law in Hamburg for many years. Amongst other projects, in 2008 the Institute drew up a major report for the German Federal Ministry of Justice that provided the scientific basis for the new German Mediation Act that came into force in 2012.

The countries dealt with comprehensively in the book include 13 EU Member States, among them Bulgaria, England, France, Germany, Ireland, the Netherlands, Poland and Portugal, as well as important jurisdictions worldwide, such as China, Japan, Russia and the USA. These contributions are based mainly on specialised knowledge from the different country research units and regional competence centres that have been established at the Institute for many years.

Mediation – Principles and Regulation in Comparative Perspective
Edited by Klaus J. Hopt and Felix Steffek
Authors: Nadja Alexander, Cathrin Bauer-Bulst, Harald Baum, Heyo Berg, Calliope G. Chronopoulou, Dmitry Davydenko, Giuseppe de Palo, Katrin Deckert, Reinhard Ellger, Evgeni Georgiev, David Gherdane, Christa Jessel-Holst, Klaus J. Hopt, Lauren R. Keller, Nikolaos K. Klamaris, Rainer Kulms, Christoph Kumpan, Ulrich Magnus, Bevan Marten, Rafał Morek, Knut Benjamin Pißler, Markus Roth, Łukasz Rozdeiczer, Jens M. Scherpe, Jan Peter Schmidt, Liane Schmiedel, Anneken Kari Sperr, Felix Steffek, Peter Tochtermann, María Luisa Villamarín López

 

Mediation: Principles and Regulation in Comparative Perspective, Oxford University Press, Oxford 2013, LX + 1347 pp.

2012-11-29 – Germany and Japan: A Legal Dialogue between Two Economies

The "Treaty on Friendship and Trade between Prussia and Japan" of 24 January 1861 was the foundation of a bilateral relationship between Germany and Japan which celebrated its 150th anniversary in 2011. Owing to this occasion, on 21 and 22 October 2011 the Max Planck Institute for Comparative and International Private Law in Hamburg hosted a comparative law symposium titled "Germany and Japan: A Legal Dialogue between Two Economies". The conference was held in cooperation with the Bucerius Law School, the German-Japanese Association of Jurists (DJJV), the Japanese General Consulate in Hamburg and the Center of Excellence of the Waseda University in Tokyo. A recently released special issue of the Zeitschrift für Japanisches Recht/Journal of Japanese Law (ZJapanR Sonderheft 6), edited by Harald Baum, senior research fellow and head of the Institute's Japan Unit, presents revised versions of the conference submissions.

A total of 11 eminent scholars from Germany and Japan tackle a wide thematic spectrum, the publication including articles on the history and modernisation of the economies and legal regimes of both countries at the close of the 19th and the onset of the 20th centuries, commercial law topics, various aspects of corporate governance and corporate compliance, and the current debate over acts of piracy. The Institute is represented in the form of an essay on management liability under German capital market law which was authored by Holger Fleischer.

The Zeitschrift für Japanisches Recht/Journal of Japanese Law is the only European publication that offers regular and prompt coverage of current developments in all areas of Japanese law. Featuring a dual language format, the Journal offers a combination of German- and English-language submissions; in each case a summary in the opposing language supports an international readership. Grounded by Harald Baum in 1996, the Journal is prepared at the Institute and is published in cooperation with the DJJV.

2012-10-12 – Rabel Journal Publishes Festheft Honouring Reinhard Zimmermann’s 60th Birthday

The Rabel Journal of Comparative and International Private Law has published a Festheft to commemorate the 60th birthday of Reinhard Zimmermann, Managing Director at the Max Planck Institute for Comparative and International Private Law. The volume was presented to the honouree at an Institute ceremony held on 12 October 2012 and attended by numerous guests from in- and outside Germany.

 

In accord with the tradition of the Rabel Journal, the Festheft compiles submissions authored by scholars who were formerly mentored by Reinhard Zimmermann. 17 authors address topics bearing on research projects which are connected to the honouree and which all embrace a historic-comparative methodology. Editing of the volume was overseen by Phillip Hellwege, Nils Jansen, Jens Kleinschmidt and Sonja Meier. Prof. Dr. Dr. h.c. mult. Reinhard Zimmermann held a Chair for Roman and Comparative Law at the University of Cape Town from 1981 to 1988. Subsequently, in 1988, he followed a call to the Faculty of Law at the University of Regensburg. In 1996 he was awarded the Leibniz Prize of the German Research Association. Calls to serve as guest professor have led him to many locations around the world, including Oxford, Cambridge, Yale, Berkeley, Chicago, Auckland and Edinburgh. Since 2002 he has been a Director at the Hamburg Max Planck Institute and since 2008 has also been a Professor at the Bucerius Law School. His particular areas of inquiry include an examination of the law of obligations and the law of succession from an historic and comparative perspective, the unification of European private law, and the relationship between the common law of England and the civil law of the European continent as well as an analysis of the development of the mixed legal systems featuring a combination of these two legal traditions. The quarterly appearing Rabel Journal of Comparative and International Private Law was established in 1927 by Ernst Rabel. It is edited by the Max Planck Institute for Comparative and International Private Law and has been published since 1946 by Mohr Siebeck in Tübingen. The journal has carried the name of its founder since 1961.

2012-10-09 – Principles of the Closed Corporation in Europe

Prof. Dr. Holger Fleischer, Director at the Max Planck Institute for Comparative and International Private Law, is a co-author of the recently published study Rechtsregeln für die geschlossene Kapitalgesellschaft, examining the globe's most frequently encountered company law form. The five-person research group, comprising also Prof. Dr. Bachmann (FU Berlin), Prof. Dr. Horst Eidenmüller (LMU München), Prof. Dr. Andreas Engert (University of Mannheim) and Prof. Dr. Wolfgang Schön (MPI Munich), has thereby authored a work marking the way for the modernisation of the closed corporation in Europe.

Notwithstanding the economic significance it holds as the preferred corporate form of small and mid-sized firms, the closed corporation is frequently subject to only minimal academic discussion and has thus been dubbed "the orphan of corporate law". At the same time, however, many European countries have in recent years amended and modernised their laws on the closed corporate form. It is against this background that the authors have jointly undertaken a first attempt at formulating principles of closed corporations in Europe independent of any specifically existing laws or proposals. The examination systematically addresses the typical areas of conflict with regard to a closed corporation. In doing so, legally-based comparative experience and findings from business economics are applied, with the European private company consistently being taken into account in the process. An English version of the joint work is being prepared under the title Regulating the Closed Corporation.

2012-10-01 – Global versus Regional Sales Law

Prof. Dr. Ulrich Magnus, Director of the International Max Planck Research School for Maritime Affairs (IMPRS), is editor of the newly released conference volume "CISG vs. Regional Sales Law Unification". The publication stems from a conference held on 12 May 2012 at the Max Planck-Institute for Comparative and International Private Law in Hamburg. Scholars from Germany, the USA and Australia addressed in their talks questions regarding the relationship between regionalised unifications of sales law and the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) which has been ratified by 78 nations.

The 11 October 2011 Proposal for a Regulation on a Common European Sales Law (CESL) gave reason to reconsider the relationship between regional efforts at unification and the global unification of the law for international sales of goods given that the area of international business sales is a subject already regulated by the Convention of International Sale of Goods (CISG). The entry into force of a CESL would result in a conflict between the global regime which has long been in effect and the new regional harmonisation. Thus, the question how other regions of the world have managed the coexistence of global and regional sales law unifications has taken on particular significance. The papers delivered at the conference considered different approaches to this problem with reference to the Uniform Commercial Code as applicable in the USA, the all-embracing common law rules encountered in Australia and the international law of sales regulations binding on the 17 signatory members of the African OHADA (Organisation pour l’Harmonisation en Afrique du droit des Affaires). The international composition of the conference attendees, claiming legal scholars from countries as far off as Japan und Vietnam, gave evidence of the interest and significance posed by the European legal developments in this field.

2012-08-09 – European Judiciary in the Field of Private Law

The citizens of the European Union are to an increasing degree impacted by law and jurisprudence rendered at the EU level. As a result of the geographic expansion of the internal market as well as the exponential growth of European law, the Luxembourg courts are at risk of being overstrained. At the same time, their decisions have met with both criticism from legal scholars in terms of substantive quality and the recurring scepticism of the Member States.

It is against this background that Hannes Rösler, Senior Research Fellow at the Max Planck Institute for Comparative and International Private Law, has undertaken a broad and in-depth inquiry of the European judiciary in respect of private law. His book "European Judiciary in the Field of Private Law" (Europäische Gerichtsbarkeit auf dem Gebiet des Zivilrechts) begins with an examination of the legal and economic factors which have created the sharp increase in the workload of the ECJ. His study brings to bear the findings of political science, sociology and economics and includes an empirical evaluation of the preliminary reference procedure as used by national courts. Hannes Rösler advocates for an expansion and specialisation of the Union judiciary. Additionally, his analysis considers the influence of national judicial and procedural rules on the application of Union law in the Member States, the demands for effective Union legal protection as well as the need for a harmonisation of private international law and international civil procedure.

Comprising a contribution in the field of European private law which has for many years been a focal point of the research performed at the Institute, the work was also the basis for the post-doctoral degree (Habilitation) that was conferred on Hannes Rösler in 2012 by the Law Faculty of the University of Hamburg. The book appears in the Institute series "Beiträge zum ausländischen und internationalen Privatrecht", published by Mohr Siebeck.

2012-07-06 – Derivative Actions in Asia

Prof. Dr. Harald Baum, head of the Japan Unit at the Max Planck Institute for Comparative and International Private Law, is a co-editor and contributing author of the just released reference work on corporate governance in Asia, "The Derivative Action in Asia – A Comparative and Functional Approach". The comparative inquiry features 16 authors illuminating the derivative action as encountered in China, Japan, India, Korea, Taiwan, Hong Kong and Singapore. These jurisdictions, home to Asia's nine largest stock exchanges, account for approximately 80 per cent of the continent's total economic output.

 

The derivative action, which has its historic roots in the United States and the United Kingdom, has become a ubiquitous feature in the corporate law regimes of Asia’s leading economies. On the basis of in-depth country-specific inquiries, the editors of the present work have adopted the derivative action as a lens for examining a number of traditional assumptions in respect of Asian corporate law practice. Numbering among them is the popularly circulated theory of Asia as a non-litigious culture. Particularly the examples of Japan, where derivative actions are undertaken far more often than in most western industrial nations, and Korea, where economic incentives have led to a sharp growth in derivative actions, challenge such a conclusion.

Also in regards to the question of how the derivative action functions within Asia’s leading civil law and common law jurisdictions, the authors were led to a number of unexpected findings. Whereas in Asia’s leading common law jurisdictions statutory (codified) law has played a substantially more important role than case law over the past two decades, the reverse has arguably been true in Asia’s leading civil law jurisdictions.

Published by Cambridge University Press, the volume stems from a symposium of the Asian Law Institute which was held in Singapore in 2010 and was titled "Derivative Actions in Asia’s Miracle Economies: A Comparative and Functional Approach". Together with Harald Baum, the work was co-edited by Dan W. Puchniak and Michael Ewing-Chow from the National University of Singapore.

2012-05-12 – 'Business Law in Japan – Cases and Comments' – Festschrift for Harald Baum

Christopher Heath überreicht die Festschrift

A ground breaking English language summary and commentary on leading Japanese judgments in the field of business law has been published as a Festschrift to mark the 60th birthday of Harald Baum, the Senior Research Fellow and Head of the Japan Unit at the Max Planck Institute for Comparative and International Private Law. Students, colleagues and friends of Harald Baum from Europe, Japan, the USA and Australia honour the achievements of the longstanding Max Planck academic with a collection of 72 judgments from Japanese courts on issues of intellectual property rights, civil law and international private and business law.

The collection of cases published by Moritz Bälz, Marc Dernauer, Christopher Heath and Anja Petersen-Padberg is a complementary publication to the Handbuch Japanisches Handels- und Wirtschaftsrecht (Encyclopedia of Japanese commercial and business law) which Harald Baum published with Moritz Bälz in 2011. The Festschrift contains contributions from over 50 notable authors from academia and legal practice and thus becomes one of the standard works on Japanese business law written in a Western language. The publishers note their intention of ensuring that the contributions do justice to the high academic standards repeatedly set by the honouree.

Prof. Dr. Harald Baum has been a Senior Research Fellow and Head of the Japan Unit he founded at the Institute in Hamburg since 1985. As founding editor since 1996 of the Zeitschrift für Japanisches Recht / Journal of Japanese Law, he has had a significant impact on comparative research and academic discussions in this area. The Festschrift was presented to him at the Institute by the publishers on 14 May 2012 during an academic ceremony.

 

Business Law in Japan – Cases and Comments. Writings in Honour of Harald Baum. Alphen aan den Rijn: Kluwer Law International, 2012, 848 pages

2012-04-12 – Academic support for reform of international private law in the Western Balkans

With closer alignment of the successor states of the former Yugoslavia and the European Union, the whole region has started to incorporate international legal developments. The dynamic development of international private law at the European Union level has caused individual transition states to draw up fundamental reforms in this area. Both Montenegro and Serbia currently have complete draft laws and Croatia is currently working on its own draft. The Central Justice Ministry of Bosnia and Herzegovina has also indicated its interest in legal reform. A series of annual regional conferences held since 2003, several international working groups and research visits from academics from Croatia, Serbia and Montenegro to the Max Planck Institute for Comparative and International Private Law in Hamburg have provided this process with strategic support.

This cooperation in the field of international private and procedural law between the Western Balkan states is based on the collective legacy of the 1982 Yugoslavian international private law. The cross-border forum founded by academics from Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia also receives support from other experts from Germany, Austria and some other countries. The regional conferences were largely made possible by support provided by the Deutsche Gesellschaft für internationale Zusammenarbeit (GIZ) that has been helping transition states in South-East Europe to reform their legal systems since 2007 within the framework of the Open Regional Fund for South East Europe – Legal Reform.

Dr Christa Jessel-Holst, a former Research Fellow at the Institute, has played an active part in this regional cooperation from the outset. At the invitation of the Montenegrin Ministry of Justice, Dr Jessel-Holst took part in the meetings of the new international private law working group. She also participated in several meetings of groups of experts in relation to the drafting of the Serbian law. Both drafts have already been subject to public discussion in the respective Parliaments and should be adopted in the near future.

2012-03-27 – New Reference Work Establishes the Basis for the Development of European Private Law

Max Planck Encyclopedia of European Private Law

Scholars of the Hamburg Max Planck Institute for Private Law have concluded their work on a groundbreaking encyclopedia of European private law. Culminating a multi-year, cooperative effort featuring more than 120 authors, the publication of the English-language reference work follows the 2009 release of the German-language version and will benefit an international readership.

The creation of a private law applicable for all Member States of the European Union represents one of the most significant developments of our time. The legislature of the EU has, however, primarily limited itself to short-term considerations driven by the politics of the day. The framework of regulations that has been promulgated in the past two decades is, as a result, fragmentary and has failed to follow an over-arching systematic approach. Responding to this development, the Max Planck Institute for Comparative and International Private Law published in 2009 the Handwörterbuch des Europäischen Privatrechts. Now, the Oxford University Press has released the Max Planck Encyclopedia of European Private Law. More than merely a translation, it stands as an independent work tailored to the varying legal backgrounds of international readers. Consistent with the format of an encyclopedia, the core of the work is comprised by the approximately 500 keyword entries which are presented alphabetically. Yet on account of the complexity of the material, the Encyclopedia offers far more information than a simple dictionary. With an editorial focus on the foundational content and principles of European private law, the work may serve to orient scholarship and legal practice within the context of the legal unification increasingly pursued by the European legislator. The work has been edited by Institute Director Jürgen Basedow, Institute Director Reinhard Zimmermann and former Institute Director Klaus J. Hopt, with Andreas Stier. The authors of the keyword entries are primarily current or former fellows of the Institute but include also a number of external scholars having a close and special affinity to the Institute.

 

Max Planck Encyclopedia of European Private Law, edited by Jürgen Basedow, Klaus J. Hopt, Reinhard Zimmermann, and Andreas Stier, Oxford 2012, 2 volumes, 2,024 pages

2012-02-23 – The Law of Succession in Comparative Perspective

Comparative succession law

Although it numbers among the most important areas of private law in practice, the law of succession has often been neglected as a subject of comparative study. In cooperation with the University of Edinburgh and the Stellenbosch University as well with partners from 14 jurisdictions across the globe, the Max Planck Institute for Comparative and International Private Law is embarking on a long-term programme which will explore key questions of succession law through an historical and comparative lens. The results will appear in a new publication series to be published by Oxford University Press titled "Comparative Succession Law". The first volume, "Testamentary Formalities", features Prof. Dr. Dr. h. c. mult. Reinhard Zimmermann, Director at the Institute, as one of its editors and focuses on the formalities which the law imposes for testamentary disposals of property.

The authors begin with the presupposition that every system shares as its point of departure the principle of freedom of testation; in other words, a person has the freedom to determine the destiny of his or her assets. But for that to be accomplished, a legal instrument or instruments must be available so that assets can be passed on to the chosen beneficiaries. The current volume elaborates upon the testamentary forms encountered in Europe and throughout the world. In addition to asking where the available will-types came from and how they developed, the volume asks: What are the advantages and disadvantages of each? How widely are they used? How can requirements of form be explained and justified? And, not least, what might the future hold? The focus of the inquiry is Europe and those countries which have been influenced by the European experience, such as Australia, New Zealand, the USA, Brazil and other Latin American countries. Two of the mixed jurisdictions - Scotland and South Africa - are included for their insights in an area of law where the division between the common law and civil law seems particularly firmly entrenched. Alongside Reinhard Zimmermann, Institute fellows Nadjma Yassari and Jan Peter Schmidt contribute as authors with chapters addressing, respectively, Islamic law and the law in Latin America.

2012-02-16 – Conflict of Laws Study Examines the Foundations of International Antitrust Litigation

Jürgen Basedow, Director at the Max Planck Institute for Comparative and International Private Law, together with Stéphanie Francq, holder of the Chair for European Law at the Université catholique de Louvain, and Laurence Idot, Professor at the University of Paris 2 Panthéon-Assas, has authored a newly released study titled "International Antitrust Litigation: Conflict of Laws and Coordination".

The decentralisation of competition law enforcement and the stimulation of private damages actions in the European Union have led to an increasing internationalisation of competition law proceedings. As a consequence, there is an ever-growing need for clear and workable rules to coordinate such cross-border actions. The background of this in-depth publication is a European Commission sponsored research project which brought together European and US experts from the areas of academia, legal practice and policy-making to critically examine the most important international antitrust provisions, to analyse them in relation to EU conflict of laws provisions and to formulate proposals for the improvement and consolidation of cross-border actions.

The findings have been compiled in 16 chapters which cover not only the relevant provisions of EU private international law, but also key issues of US procedural law which are highly relevant for transatlantic damages actions. The work additionally considers thus far neglected topics such as questions regarding jurisdictional competence and the applicable law as well as rules on the sharing of evidence and the protection of business secrets.

2012-02-15 – Revised Compendium on English Commercial Law and Business Law

Martin Illmer, senior research fellow at the Max Planck Institute for Private Law, Wolf-Georg Ringe and Stefan Vogenauer, former research fellows at the Institute, are co-authors of the fully revised 3rd edition of the reference work "Englisches Handels- und Wirtschaftsrecht", edited by Triebel/Illmer/Ringe/Vogenauer/Ziegler and including prefatory comments from Lord Mance.

The new edition attempts to provide a comprehensive overview of English commercial law and business law. Throughout the work, the differences between German and English business law as well as the increasing interfaces between English and European law are explained. The treatise is not a German language presentation of English law by English jurists - English jurists attempting to explain their law to businessmen and lawyers working in the German legal realm frequently fall short as they may not fully appreciate the fundamental differences between their law as compared to foreign law.

Rather, the present work stands as a survey of English law by scholars trained in Germany and England who - throughout the inquiry - adopt a comparative perspective in respect of German law. Current Institute research fellow Martin Illmer covers the sale of goods, international civil procedure, private international law, international arbitration law and international insolvency law. Two former fellows also contribute to the work, with Wolf-Georg Ringe co-authoring the sections on company law and insolvency law and Stefan Vogenauer addressing the terminology and sources of commercial and business law as well as the distinctive characteristics of English contract law.

2012-02-10 – Essential Cases on Damage: Judgments from 26 European Legal Systems in a Historical and Comparative Perspective

December 2011 witnessed the release of the second volume of the Digest of European Tort Law, edited together by Prof. Dr. Bénédict Winiger, Prof. Dr. Dr. h. c. Helmut Koziol, Prof. Dr. Bernhard A. Koch und Prof. Dr. Dr. h. c. mult. Reinhard Zimmermann, Director at the Max Planck Institute for Comparative and International Private Law.

The Digest of European Tort Law project aims to facilitate the understanding of tort law in Europe by making accessible key court decisions reached in this field across the various European legal systems. In 2007 a first volume titled "Essential Cases on Natural Causation" was released. The presently published second volume, "Essential Cases on Damage", addresses the notion of damage.

Based on a questionnaire prepared by legal scholars from various legal traditions within Europe, working groups from 26 legal systems have analysed their respective national jurisprudence and identified fundamental cases. For each case the working group scholars have summarised the facts and the relevant court decisions and, thereafter, outlined the consideration of the decision by legal scholars in their respective national jurisdiction. Each specific issue was, further, examined in light of the case law of the ECJ as well as the Principles of European Tort Law (PETL) and the Draft Common Frame of Reference (DCFR). Finally, the volume offers as to each problem a historical consideration and a concluding comparative analysis. Reinhard Zimmermann prepared a number of these comparative assessments and, together with Sebastian A. E. Martens, Senior Research Fellow at the Institute, authored the country report on Germany.

2012-02-07 – 50th Anniversary of the Korean Civil Code

The Civil Code of the Republic of Korea was promulgated on the 22 February 1958, and entered into force on the 1 January 1960. Therefore, the years 2008/2010 marked its 50th anniversary.  In honour of this occasion the Max Planck Institute for Comparative and International Private Law in Hamburg hosted a symposium for German and Korean legal researchers on the 7 and 8 November 2008. The lectures given at this Symposium have now been released as a festschrift, and edited by Prof. Dr. Yu-Cheol Shin, Director of the Chungnam National University Law School, Dejeon, Republic of Korea, and Prof. Dr. Dr. h. c. mult. Reinhard Zimmermann, Director at the Max Planck Institute for Comparative and International Private Law.

The close linkages between German and Korean civil law research have a long history. They go back to 1876, when a trade agreement with Japan led Korea to open itself up to trade, and into contact with American, French, and increasingly, German legal theories. The focus on German law intensified during one of the most tragic periods of Korean history, as the country was annexed by the Japanese empire between 1910 and 1945. During this period the 1898 Japanese Civil Code also applied in Korea. This was a Civil Code that was heavily influenced by the Pandect system and the draft German Civil Code. That the German influence would extend beyond this period of occupation became particularly clear in the codification of the Civil Code of the Republic of Korea in 1958/1960. In addition to this, a lively exchange began between German and Korean academics, that continues until this day.

The symposium in Hamburg was intended to serve as a confirmation and further solidification of this bond. Ten outstanding representatives of Korean Civil Law from ten Korean Universities each held one lecture on the central themes of the law of obligations, and property law. This was followed by a discussion, opened by an introductory comment by a researcher from Germany or Austria. The Korean lectures sought, along with an analysis of relevant regulations, to place an emphasis on the development of Korean law, from pre-codification through to the present day. Their German speaking counterparts then took over, to provide the Korean audience with an overview of the development of the relevant field of law in Germany or Austria, thus more clearly highlighting the specific profile of Korean law. The festschrift is prefaced by a contribution by Prof. Zimmermann on the German Civil Code and the development of civil law in Germany, as well as by an article by Prof. Jong-Hyu Jeong, Chair of the Chonnam National University Law School, Gwangju, Republic of Korea, on the creation and development of the Korean Civil Code.

2012-01-25 – Münchener Kommentar zum GmbH-Gesetz Released in Full

Following the publication of Volume 1 (§§ 1 - 34, 2494 pages) and Volume 2 (§§ 53 - 85, 1272 pages) in 2010 and 2011, the work has now been completed with the release of Volume 3 (§§ 35 - 52, 1537 pages).

The Münchener Kommentar zum GmbH-Gesetz, jointly edited by Prof. Dr. Holger Fleischer, Director at the Max Planck Institute for Comparative and International Private Law, and Prof. Dr. Wulf Goette, Federal Court of Justice, is now complete. Following the publication of Volume 1 (§§ 1 - 34, 2494 pages) and Volume 2 (§§ 53 - 85, 1272 pages) in 2010 and 2011, the work has now been completed with the release of Volume 3 (§§ 35 - 52, 1537 pages). As a commentary, the work is oriented on both the practical aspects, current jurisprudence and literature which have resulted following the most significant reform of the GmbH Act (the MoMiG of 2008) since its inception in 1892, as well as giving fresh consideration to debated or thus far ignored issues. As an academic treatise, the work also fills the role of performing a presentation and analysis of the closed corporation in its full scope and breadth.

Of the many elements contained in the new volume, a comprehensive commentary on director liability (§ 43 GmbHG, 140 pages) has been authored by Holger Fleischer. Considering many current questions (eg compliance, bribery, M&A transactions, D&O insurance, business judgment rule, mistake, liability exemption), comparative analysis and a law and economics approach regularly serve as the basis for his assessments.

2012-01-17 – More Legal Certainty for International Transactions falling under Chinese Civil Law

Knut Benjamin Pißler assists with the translation of the "Regulation on the Causes of Civil Action" promulgated by the Chinese Supreme People’s Court.

In 2011 the Supreme People’s Court (SPC) promulgated the “Regulations on the Causes of Civil Action”. The promulgation of the Regulations has significance in various regards. It clearly signals a new approach of the SPC to systemise and compile the status quo of the Chinese civil law system. With the Regulations the SPC aims to help lower courts and parties to legal actions to correctly apply the law. Furthermore, it wants to collect accurate statistical information regarding court decisions and compile these court decisions. The SPC ultimately intends to build a systematic collection of court decisions which shall provide the people’s courts with a reliable data base for reference in deciding future cases. This new approach of the SPC has a deep impact on the understanding of the application of law in China as it undoubtedly recalls the concept of writs in traditional English common law (i.e. types of actions). The research compiled in this book therefore goes to the roots of the notion of law in China and to the relationship between claims arising from substantive law and the means for enforcing these claims under civil procedural law.

Providing a translation of not only the Regulations but also of their interpretation and analysis as specified by the SPC, the work will help academics and practitioners to understand Chinese civil law from the viewpoint of Chinese courts. The book, authored by Knut Benjamin Pißler, Hongyan Liu and Yiliang Dong, will advance the understanding of the Chinese legal system in foreign countries and ultimately lead to more legal certainty in international transactions involving China. Including all bases for civil actions (including a reference to the specific legal provision in question) the book is an indispensable tool for accessing Chinese civil law and will become "The Handbook" for the initiation of research as well as the filing of civil claims in Chinese courts.

The publication series “Schriften zum chinesischen Recht” is released under the auspices of the German-Chinese Lawyers' Association and is edited by Professor Dr. Uwe Blaurock, Freiburg, Professor Dr. Ulrich Manthe, Passau, Dr. Knut B. Pißler, Hamburg, and Professor Dr. Christiane Wendehorst, Göttingen. Its volumes comprise monographs and conference papers as well as annotated translations of significant Chinese legislative acts and bilingual presentations of statutory materials. The result is a content-specific publication series dedicated to the presentation of materials having practical relevance.

2011
2011-11-22 – Corporate Governance after the Financial and Economic Crisis

The financial and economic crises are challenging us to define the principles and objectives of modern commercial law in an international context. Their formulation was the topic of a Cusanuswerk conference undertaken from 29 October through 1 November 2010 in Bonn.

Felix Steffek, Senior Research Fellow at the Max Planck Institute for Comparative and International Law, has along with Christoph Allmendinger, Friederike Dorn, Thomas Lang and Stephanie Lumpp edited a resulting conference volume which has recently been published by Mohr Siebeck.

Drawing from academia and practice, the book assembles the viewpoints of 20 individuals in the arena of corporate governance. In addition to the contribution of co-editor Steffek, authors include Institute fellows Christoph Kumpan, Patrick Leyens and Constantin Hartmann as well as two former members of the Institute's advisory board, Marcus Lutter, Center for European economic Law at the University of Bonn, and Peter Doralt, Professor of Civil Law and Business Law at the Vienna University of Economics and Business.

Bound by the common desire to define anew the models and goals of a modern and international economic law regime, the authors undertake a field of inquiry extending beyond the traditional boundaries of corporate governance. After fundamental questions serve as a point of departure, the work's contributions go on to address competition between systems, corporate takeovers, the role of auditors, management responsibility and compensation, the professionalisation of governing boards as well as corporate and bank restructuring.

2011-11-18 – Applicable Law and Efficiency: Economic Foundations of Private International Law

Private international law aims to facilitate the handling of cross-border transactions. Empirical studies, however, show that the volume of commercial transactions between two different countries is significantly smaller than volume of transactions inside one country - this even being the case when the countries at issue have substantially liberalised commerce and are linguistically as well as culturally similar. Does this suggest that private international law is not capable of solving the problems associated with international transactions? Or is rather its configuration inadequate when considered from an economic perspective?

The professorial dissertation (Habilitationsschrift) of Giesela Rühl addresses both of these questions. Working from a broad comparative basis, she subjects the norms of private international law to an analysis which utilises economic instruments and tools. In so doing, the findings and precepts of economic theory are brought to bear in order to solve specific problems posed by international contract and tort law. Maintaining a central focus on the emerging private international law regime of Europe, the work contributes to the development of a coherent and functional conception of European conflicts of law as well as to the establishment of European conflicts of law as an independent area of scholarly inquiry.

Prof. Dr. Giesela Rühl, former research fellow at the Max Planck Institute for Comparative and International Private Law, holds the chair for civil law and civil procedure, private international law and international civil procedure, European private law and comparative law at the Friedrich-Schiller-Universität Jena. Her work (printed in German under the title: Statut und Effizienz. Ökonomische Grundlagen des Internationalen Privatrechts) appears in the Institute publication series "Beiträge zum ausländischen und internationalen Privatrecht" and was the basis of the professorial qualification awarded to her in 2010 by the Law Faculty of the University of Hamburg.

 

2011-10-27 – Licenses as Collateral in Comparative Perspective

Gabriele Koziol analyses the civil law bases for the use of intellectual property licenses as collateral in Germany, Austria and Japan.

With the growing importance of patents, trade marks and copyrights as business assets, intellectual property rights as well as use rights are increasingly being employed as a means of securing liquidity. Licenses can, in this regard, be used in a variety of manners.

The work, Lizenzen als Kreditsicherheiten: Zivilrechtliche Grundlagen in Deutschland, Österreich und Japan (Licenses as Collateral under German, Austrian and Japanese Law), first addresses the question of how licenses are to be legally categorised before then considering the establishment of security rights based on licenses inclusive of the rights and obligations of the parties to the security transaction. A further focal point of the work is insolvency, where questions arise with regards to the reliability and durability of not only the security rights, but also the licenses. The use of licenses as collateral is comparatively examined with reference to German, Austrian and Japanese law, particular emphasis being placed on the extent to which the practice is provided for in general civil law provisions.

Dr. Gabriele Koziol is a research associate with the chair for Japanese Law and its Cultural Foundations at the Goethe-Universität Frankfurt am Main; she is a former research associate of the Max Planck Institute for Comparative and International Private Law in Hamburg where she was active with the Japan unit from 2006 through 2007. The work - the doctoral dissertation of Gabriele Koziol as accepted by the law faculty of the University of Regensburg in the winter semester 2010/11 - appears in the Institute series "Studien zum ausländischen und internationalen Privatrecht", published by Mohr Siebeck.

2011-10-20 – Core Reference Work with respect to Current Legal Developments in the Yugoslavian Successor Nations

Newly released single-volume reference work assembles the most important international, European, and national legal sources on international private law and presents parallel English and Croatian versions of the texts alongside one another. As a result, all of the Yugoslavian successor nations will for the first time be able to readily access a work bringing together the sources most relevant for their current legal development.

The work above all assists in preparing for Croatia's entrance into the European Union and the corresponding introduction of European legal provisions into Croatian law. At the same time, Croatian language compilations of the significant EU legal sources is of exceptional value for jurists in Serbia, Montenegro and Macedonia as well as Bosnia and Herzegovina given the linguistic similarities of their respective national languages. The majority of the 1,621 pages of Croatian translation have been prepared for the first time; adopted texts have been subject to thorough review and revision.

The volume was published by the Zagreb publishing house Narodne Novine, also responsible for the release of the official legal gazette of the Croatian Republic, and benefitted from the financial support of the Deutsche Gesellschaft für Internationale Zusammenarbeit. The GIZ has since 2007 supported a number of regional activities, initiatives and cross-border cooperations in the context of projects aiming to assist the reform process in the new states of South East Europe. A leading role in these efforts has been played by Dr. Christa Jessel-Holst, former research fellow at the Max Planck Institute for Comparative and International Private Law. Dr. Holst has for many years conducted research on the private law regimes of South East Europe and coordinated numerous cooperative efforts with the countries of South East Europe as part of her activities at the Institute.

2011-10-10 – Corporate Law and Creditor Protection in International Civil Procedure

Creditor protection in respect of limited liability corporations is a topic assuming an increasingly central role in corporate law and private international law. Whereas the scholarly discussion has primarily focused on substantive law issues and the appropriate connecting factors from a private international law perspective, the question of international civil procedure has thus far received relatively little attention.

In his work "Gesellschaftsrecht und Gläubigerschutz im Internationalen Zivilverfahrensrecht" (Corporate Law and Creditor Protection in International Civil Procedure), Dr. Johannes Weber, research fellow at the Max Planck Institute for Comparative and International Private Law, addresses the question of which court may claim international jurisdiction when it comes to the enforcement of creditor protection in respect of corporations. Analyzing the question in the context of EU international civil procedure, Weber's analysis offers in particular a comparison of German and English substantive law. Revealing a number of significant substantive contrasts between the two distinct legal traditions, the inquiry is also of considerable relevance in light of the number of business entities incorporated under British law. The work, submitted and accepted as a doctoral dissertation in the winter semester 2010/2011 at the law faculty of the Albert-Ludwigs-Universität Freiburg, concludes with a discussion on the perspectives for future legal reform.

2011-10-04 – Library of the Max Planck Institute for Private Law Acquires its 500,000th Volume

The Hamburg Max Planck Institute for Comparative and International Private Law is home to a unique library whose holdings in the field of civil law are world renowned. With the acquisition of the English version of the Civil Code of Qatar, the 500,000th volume has been added to its collection. Prof. Dr. Holger Knudsen, Director of the library, displays the new acquisition at a ceremony commemorating the milestone.

Established in 1926 in Berlin alongside the Institute in and located in Hamburg since 1956, the library is the chief tool of the academic staff of the Institute. It is additionally used annually by more than 1,000 legal scholars visiting from all continents of the globe.

The library of the Max Planck Institute collects legal literature inclusive of journals, codes, court decisions and monographs from virtually all 200 of the world's nations. Holdings are principally in the original language but also include numerous translations. Special emphasis is placed on the acquisition of literature from countries which are not easily visited, thereby ensuring that at least a compilation of these sources may be accessed in a single location. Whereas the majority of the holdings were published in the last 50 years, the two oldest works in the collection date from 1523.

Approximately 10,000 new titles are acquired each year. The Institute library stands as the largest library in Europe specialised in comparative and international private law and ranks as one of the largest and best equipped libraries of its kind across the globe. With a catalogue whose entire breadth may be called up online and a growing body of electronic holdings, its collection fits squarely in the profile of a modern library.

2011-09-05 – Behavioral Economics in Commercial and Economic Law

Prof. Dr. Holger Fleischer, Dipl.-Kfm., LL.M., Director at the Max Planck Institute for Comparative and International Private Law, and Prof. Dr. Daniel Zimmer, LL.M., Bonn, are the editors of a volume considering the significance of behavioral economics in commercial and economic law. The publication represents Germany's first reference work on the potential applications and limitations of behavioral economics in company law, capital market law, cartel law and unfair competition law.

The authors Armin Falk, Steffen Altmann, Felix Marklein, Lars Klöhn, Christoph Engel and Matthias Leistner are acknowledged experts in the field. Their contributions are preceded by a 50-page introduction formulated by Holger Fleischer, Daniel Zimmer and Klaus Ulrich Schmolke which concisely presents to a legal audience the field, notion and potential applications of behavioral economics. The work, released as a supplement to the Zeitschrift für das gesamte Handelsrecht und Wirtschaftsrecht (ZHR), also represents yet another interdisciplinary and multi-methodological effort consistent with the research long-pursued at the Hamburg Institute.

2011-09-02 – Convergences and divergences in German, Swiss and Austrian company and capital market law

Current and fundamental questions regarding GmbH, stock and capital market law considered from German, Austrian and Swiss perspectives make up the content of a new conference volume collectively edited by Prof. Dr. Holger Fleischer, Director at the Hamburg Max Planck Institute for Comparative and International Private Law, Prof. Dr. Susanne Kalss, Wirtschaftsuniversität Wien and Hans-Ueli-Vogt, University of Zürich.

 

The work is based on a May 2010 Max Planck Institute conference which had the aim of promoting a cross-border academic exchange between younger and middle generation company and capital market law scholars. The topics focused upon in the area of stock law were the possibilities and boundaries of shareholder democracy as opposed to managerial power (Hans-Ueli Vogt, Holger Fleischer) as well as the flow of information in affiliated companies (Susanne Kalss, Gerald Spindler). In capital market law, speakers addressed transparency of ownership in light of modern financial instruments (Peter Kunz, Gregor Bachmann) and sanctions and the loss of voting rights in relation to breaches of duties of disclosure (Johannes Zollner, Rüdiger Veil). In GmbH law, the extent and limitations of the freedom of establishment were the subject of examination (Ulrich Torggler, Lukas Handschin). A further volume based on a subsequent conference from May 2011 is in preparation.

2011-09-15 – New study provides comprehensive overview of liability issues associated with the Fukushima nuclear disaster

In an article published in the Zeitschrift für Japanisches Recht / Journal of Japanese Law [“Die Haftung für Nuklearschäden nach japanischem Atomrecht – Rechtsprobleme der Reaktorkatastrophe von Fukushima I” (Liability for Nuclear Damages pursuant to Japanese Atomic Law – Legal Problems Arising from the Fukushima I Nuclear Accident) (ZJapanR 31, 2011)] Julius Weitzdörfer, Research Associate with the Japan Unit of the Max Planck Institute for Comparative and International Private Law, examines the legal challenges currently facing the Japanese judiciary, government and economy in the aftermath of the nuclear disaster.

With expected damage claims estimated as high as 90 billion Euros, the nuclear catastrophe in Fukushima represents the largest liability case in Japanese history. Claims for compensation are expected from various categories of victims, including evacuated plant workers and citizens, impacted farmers and fishermen, and representatives of industry and tourism. Notwithstanding the unlimited liability imposed on nuclear operators under Japanese law, lump-sum State payments have been initiated in connection with extra-judicial proceedings. The economic burden thus likely primarily falls upon the treasury but will also impact the financial institutions which are being required by the government to make the necessary financial support available; other energy providers may be required to bear a financial burden as well, with the result that consumers could ultimately face higher energy prices.

The question whether Japan’s most powerful earthquake constitutes an “extraordinary natural disaster” excluding operator liability was subject to considerable debate in the wake of the accident, yet such an exclusion has thus far been rejected in legal and governmental circles. Accordingly, it remains to be clarified what standard of causality is applicable, e.g. in relation to subsequent health consequences, and how to treat lost business profits resulting from mere rumours in regard to radiation levels. Additionally, the question arises whether the Japanese State could be made liable on account of insufficient nuclear energy supervision.

The decision of the Japanese government to provide relief to victims as quickly and unbureaucratically as possible on the basis of central guidelines and through the payment of lump-sum damages is a prime example of institutionalised conflict management demonstrating obvious practical advantages. By contrast, in light of the complexity of the legal problems presented and the number of individual damage claims which can be expected from affected parties – claims which will be raised by lawyers in formal judicial proceedings – the danger of an overburdened Japanese judiciary looms. Simultaneously, the government’s currently pursued strategy for coping with the catastrophe also raises a number of constitutional questions.

The article (in German along with an English abstract) can be downloaded.

2011-07-22 – Banking Corporate Governance Handbook

A new Handbook focussing on the specific issues of management and corporate governance in the banking sector has just been released, edited by Prof. Dr. Dr. Dr. h. c. mult. Klaus J. Hopt, Director emeritus of the Max Planck Institute for Comparative and International Private Law and economist Gottfried Wohlmannstetter M.Sc., member of the Executive Board of Barclays Bank. This is the first independent book publication on this topic in Germany.

While the amount of comprehensive legal and economic literature on Corporate Governance has increased to overwhelming levels in recent years, the insight that financial institutions need to be viewed from a different perspective and hence require specific regulations, has only recently gained ground. This has been confirmed by a motion calling for a Banking Codex at the 68th Association of German Jurists meeting in Berlin. Additionally the legislative proposals from the European legislature anticipated in 2011 may have serious repercussions on the corporate governance of publically listed companies. With these circumstances in mind the editors and authors are aware of dealing with a “moving target”, while casting their gaze further to expand their field of investigation to include other financial institutions, particularly insurance providers, in future publications. The Handbook brings together the work of 42 authors from the fields of law and economics, the banking sector as well as auditing and consulting sectors. The editors were greatly assisted by Daniel Annoff, Research Fellow at the Institute, and Dr. Harald E. Roggenbuck.

2011-07-18 – Institute participates in the preparation of the new edition of the UNIDROIT Principles. Reinhard Zimmermann formulates rules on restitution in case of failed contracts.

The UNIDROIT Principles of International Commercial Contracts were first published in 1994 and later followed by a second edition in 2004. The Principles are taken by legislators worldwide as a model for contract law reform and are increasingly used in international contracting and arbitration practice, as well as by the courts to interpret and supplement the applicable domestic law.

The new edition of the Principles - the UNIDROIT Principles 2010 – were prepared over a five-year period by a group of renowned experts drawn from throughout the world. In addition to some modifications and updating, the 2010 edition contains new provisions addressing the following areas:

- Restitution in case of failed contracts
- Illegality
- Conditions
- Plurality of obligors and of obligees

Reinhard Zimmermann, Director at the Institute, served as reporter for the topic of restitution in case of failed contracts. The principles formulated by Reinhard Zimmermann offer for the first time a significantly uniform regime in this area: the new Articles 3.2.15 and 7.3.6 (respectively providing rules on restitution in regards to avoidance and termination) are in accord; in Art. 3.3.2 (3) reference is made to Art. 3.2.15 for contracts infringing mandatory rules, and in Art. 5.3.5 reference is made to Art. 7.3.6 for restitution in case of fulfilment of a resolutive condition. A distinction exists between restitution with respect to termination and avoidance only to the extent that a special rule (for termination, but not for avoidance) exists for contracts to be performed over a period of time: to the extent that the contract is divisible, restitution can only be claimed for the period after termination has taken effect.

A detailed report (in German) on this project appears in the Institute's

anual report 2010 (p. 32)

.

2011-07-13 – Three Articles on the Reform of the Brussels I Regulation Featured in Current Issue of RabelsZ

Three Institute scholars evaluate the European Commission's proposal on the reform of Regulation 44/2001, the so-called Brussels I Regulation.

Judicial cooperation in cross-border civil and commercial matters is a key element in the realisation of the European internal market. Toward this aim the EC enacted in 2001 the Brussels I Regulation (Nr. 44/2001). Uniform rules on the jurisdiction of Member State courts and Europe-wide recognition and enforcement of judgments should ensure that commercial transactions might also smoothly function in those instances when applicable duties and obligations needed to be enforced in a cross-border setting. Although the Brussels I Regulation has been widely viewed as meeting the needs of international transactions, a number of shortcomings have become apparent in several important areas.

The long-awaited Commission proposal on the reform of the Regulation (14 December 2010 (COM(2010) 748 final) contains a number of suggested revisions for remedying perceived inadequacies, some of the proposed solutions representing wholly new approaches. As featured in the current issue of the Rabel Journal of Comparative and International Private Law, three Institute scholars have comprehensively examined important aspects of the Commission proposal.

Christian Heinze analyses the proposal as it relates to jurisdiction agreements, parallel proceedings, lis pendens and provisional measures, formulating concrete alternative proposals alongside his assessment of the Commission suggestions.

Martin Illmer, member of the European Commission's Expert Group on the interface of Brussels I and arbitration, undertakes an in-depth evaluation of the proposal's treatment of this interface, supplementing his analysis with a consideration of existing empirical data.

The contribution of Johannes Weber critically examines the Commission's reform proposals in respect of international legal transactions involving third states. The articles, all authored in English, appear in RabelsZ Volume 75, Issue 3, 2011.

About RabelsZ:
The Rabel Journal of Comparative and International Private Law (RabelsZ) appears quarterly and was founded in 1927 by the first Director of the Institute (Ernst Rabel) as a central German forum for research in the fields of private law, economic law and procedural law. The journal has been published since 1946 by Mohr Siebeck (Tübingen) and has carried the name of its founder since 1961.

2011-06-01 – China Unit presents German translation of the new Republic of China (Taiwan) private international law provisions

Simultaneous to their entry into force, on 27 May 2011 the China Unit of the Institute has completed a German translation of the new Republic of China on Taiwan private international law provisions. The text is available as a PDF download at the webpage of the China Unit.

Following in the steps of Korea (2001) und Japan (2007), the People's Republic of China and the Republic of China on Taiwan revised their private international law in 2010. The Taiwanese version was completed on 26 May 2010, but only first took effect on 27 May 2011. The 28 October 2010 enacted provisions of the Chinese mainland have already been in effect since 1 April 2011. The China Unit of the Institute had previously made available a German translation of the International Private Law of the People's Republic of China and is presently preparing an introduction to the provisions which will be published in an upcoming issue of the Institute's Rabels Journal of Comparative and International Private Law.

The entry into effect of the new Taiwanese private international provisions represents a particularly good opportunity for the head of the Institute's China Unit, Knut Benjamin Pißler, to comparatively consider the two conflicts of law regimes. The inquiry is of particular intrigue to the extent that the civil law of the Republic of China on Taiwan has codification roots that extend back to the Qing Dynasty (1644 to 1911), whereas civil law in the People's Republic of China was initially oriented on the socialist model of the Soviet Union before finally in the 1980s beginning an ongoing process of adaptation to the needs of international commerce and market economies. A comparison of these two recent acts of legislation could, thus, prove well-suited for more precisely identifying what is distinctly "Chinese" in Chinese law.

2011-05-11 – Directors' Duties in the English Limited – Companies Act

As a consequence of the jurisprudence of the European Court of Justice, it is obligatory for each EU Member State to recognize corporate entities validly formed under the company law of another Member State. The result has been the rapid spread of the English limited company (Ltd.) over the course of the last decade, this phenomenon being witnessed also in Germany and Austria. This can be explained in great part by the speed, ease and cost-effectiveness with which an English limited liability company may be established, requirements of minimum capital and employee codetermination being non-existent. Because of this sudden emergence of systemic competition, one has also observed significant reform pressure falling upon the law governing the German GmbH.

Walter Doralt, senior research fellow at the Max Planck Institute for Comparative and International Private Law, has authored a German language commentary which systematically addresses the key facets of the English Companies Act for the benefit of both scholarship and practice. These include provisions on directors’ duties, derivative claims and secretaries. On the basis of his comparative approach, Doralt is not only able to consider unique aspects stemming from English language terminology and formulation, but is also able to analyse differences between English provisions, on one hand, and the closely related systems of Germany and Austria on the other, such distinctions often being traced to the underlying legal tradition and normative context. In so doing, his efforts bear witness to the continuing progression of comparative law from a theoretical field to one of increasing practical significance, particularly in the European legal realm.

After completing his doctoral dissertation at the University of Vienna, Dr. Walter Doralt has, among other endeavours, served as a Max Planck Fellow at the Institute of European and Comparative Law of the University of Oxford and guest professor at the Università Bocconi in Milan. Since January 2009 he has been the Institute fellow responsible for study and research in relation to France. The focal points of his research are European private law, commercial law and company law.

2011-03-01 – Max Planck Institute for Comparative and International Private Law Highlights New Chinese Legislation in the Field of Mediation

With the first German translation of the "Law of the People's Republic of China on People's Mediation" (entered into force on 1 January 2011), the Institute has laid another milestone in its work on the ongoing development of law in China, this time in the field of mediation. The German version, prepared by Knut Benjamin Pißler is available as a PDF Download at the China Unit's website.

On 28 August 2010, the Standing Committee of the National People's Congress enacted and announced the "Law of the People's Republic of China on People's Mediation". The law consolidates a variety of provisions of the Chinese State Council and the Ministry of Justice of the People's Republic which had been promulgated over the last 20 years. In so doing, the groundwork has been laid for alternative dispute resolution in China. In particular, a "confirmation procedure" which is conducted before the People's Court - a procedure first introduced by the Supreme People's Court in a 2009 "judicial interpretation" - has strengthened the enforcement of mediated agreements. Additionally, the new law establishes for the first time a compensation scheme for mediators.

The topic of mediation has been studied comparatively at the Hamburg Institute for a number of years. In 2008, as commissioned by the German Federal Ministry of Justice, the Institute published a study on mediation that included an extensive country report on the People's Republic of China alongside an analysis of several European nations, Japan and the USA. An English version of the study is currently in preparation and will include the latest Chinese legislative developments.

2011-02-01 – "Private Law in Eastern Europe – Autonomous Developments or Legal Transplants?"

East European legal developments considered from a broader European perspective.
More than 20 years have elapsed since the collapse of Eastern Europe’s former socialist states. During this time, the rule-of-law regimes which have emerged in their stead have undergone an unprecedented process of transformation, meeting the conditions of both market-economy realities and the dynamics of European integration. Whereas legislative priority in these East and Southeast European nations may initially have been placed on establishing the security of property rights and buttressing the institution of private property, attention quickly turned to traditional areas of civil law and company law

It was against this background that in March 2009 Hamburg’s Max Planck Institute for Comparative and International Private Law, working in partnership with the Institute for East European Law at the University of Kiel, hosted an international conference titled “Private Law in Eastern Europe – Autonomous Developments or Legal Transplants?” The resulting conference volume, appearing in the Institute series "Materialien zum ausländischen und internationalen Privatrecht" which is published by Mohr Siebeck, assembles the contributions of 23 academics and practitioners hailing primarily from countries which, prior to 1990, numbered among the socialist-ruled circle of nations. Represented countries include Bosnia-Herzegovina, Bulgaria, Croatia, Hungary, Poland, Romania, Russia, Serbia, Slovenia and Ukraine. Having regard to the various paths of development pursued by the respective nations, a wide spectrum of approaches may be observed, ranging from autonomous legal development to the direct reception of existing European legal solutions.

The Editors:
Dr. Christa Jessel-Holst is a former research fellow of the Max Planck Institute for Comparative and International Private Law and coordinates the Institute’s cooperative efforts with Europe’s south-eastern nations.

Priv.-Doz. Dr. Rainer Kulms, LLM, is a research fellow at the Max Planck Institute for Comparative and International Private Law and is editor-in-chief of the European Business Organization Law Review.

Prof. Dr. Alexander Trunk is director of the East European Law at the University of Kiel, holds the professorial chair for private law and East European Law and is the dean of the law faculty at the University of Kiel.

2011-01-28 – Paving the Way Towards a European Contract Law

The Institute submits its comments on the Commission's Green Paper on policy options for progress towards a European contract law for consumers and businesses.

Following the long tradition of the Institute to comment on important projects of the Commission in the fields of private and private international law, Directors Jürgen Basedow and Reinhard Zimmermann established a Working Group consisting of Institute researchers who met regularly from September 2010 until January 2011. The intensive discussions on the different policy options put forward by the Commission resulted in the present position paper which will also be published in the forthcoming issue of RabelsZ (2/2011).

On 1 July 2010, the European Commission published a "Green Paper on policy options for progress towards a European contract law for consumers and businesses" (COM(2010) 348 final). The seven different policy options advanced by the Commission range from the mere publication of the results obtained by the ad hoc expert group established by the Commission (option 1) to the introduction of a European civil code by regulation (option 7). Thus, the Commission launched a public consultation to gather the opinions and perspectives of individuals, organisations and Member States.

While welcoming the Commission's initiative, the Institute criticizes that the Commission did not sufficiently consider the issue of the legislative competence of the EU. At present, an optional instrument (opt-in) drafted as a Regulation (option 4) and based on Art. 352 TFEU seems to be the preferable option. Such an instrument raises a number of questions regarding its choice and its area of application which have been addressed by the Working Group. An optional instrument should be granted a broad scope of application, including both B2B and B2C contracts, domestic contracts, intra-Union cross-border contracts as well as contracts with parties resident in third states. Its scope should neither be limited to cross-border contracts nor to contracts concluded online. At present, however, the Institute does not recommend any specific option since such a recommendation would in the end depend on the substantive quality of the final instrument. In this regard, an important preparatory work for any future European contract law, i.e. the Draft Common Frame of Reference (DCFR), has already been criticized by some members of the Working Group.

The Working Group was composed of (in alphabetical order): Jürgen Basedow, Gregor Christandl, Walter Doralt, Matteo Fornasier, Martin Illmer, Jens Kleinschmidt, Sebastian A.E. Martens, Hannes Rösler, Jan Peter Schmidt, Reinhard Zimmermann.

2011-01-20 – Handbuch zum japanischen Handels- und Wirtschaftsrecht (Encyclopedia of Japanese Commercial and Business Law)

Edited by Harald Baum, Head of the Japan Unit at the Max Planck Institute for Comparative and International Private Law and Moritz Bälz, Professor of Japanese Law and its Cultural Foundations at the Goethe-Universität Frankfurt am Main, the "Handbuch Japanisches Wirtschafts- und Handelsrecht" (Encyclopedia of Japanese Commercial and Business Law) stands as the most comprehensive compilation of these materials ever assembled in the German language. Hailing from Germany, Japan and Australia, the circle of authors comprises 38 renowned scholars and practitioners expert in Japanese law.

For readers of German active in scholarship, commerce or politics, the Encyclopedia presents Japanese commercial and business law in a manner unique for the European continent. The work does not require any familiarity with the Japanese language, and, to the greatest extent possible, reference is made to other Western-language materials and publications. Building from their historical, methodological and institutional background, the work outlines approximately 30 different areas and in so doing effectively encompasses Japanese civil law, commercial law, business law and procedural law. All entries have been updated through 2010. Additionally, the 1700 page volume is supplemented by a comprehensive index of laws and statutes, a nearly 100-page long semi-annotated bibliography of more recent Western publications on Japanese law and a German-Japanese glossary of legal terms.

For historical reasons, the relationship between Germany and Japan in respect of law is quite close. Not least, it was German jurists who were active participants in the construction of the modern Japanese legal system over 100 years ago. The still presently applicable Japanese Civil Code of 1896 and 1898 is in many parts oriented on the draft formulation of the German Civil Code of 1900. Yet whereas Japanese legal scholars have over the years continually maintained a focus on German law, it is only in the last three decades that a steadily growing interest in Japanese law can be witnessed within Germany. The significance of Japan as the world's third largest economic power has, moreover, made ready access to its legal system in Western languages indispensible.

Prof. Dr. Harald Baum is the founder and head of the Japan Unit at the Max Planck Institute for Comparative and International Law. He is also the founding editor of the Zeitschrift für Japanisches Recht / Journal of Japanese Law; in publication since 1996, it is the world's only ongoing journal reporting on current developments in the field of Japanese law.

Prof. Dr. Moritz Bälz, LLM (Harvard), holds the chair for Japanese Law and its Cultural Foundation at the Goethe-Universität Frankfurt am Main. He is a former fellow of the Max Planck Institute for Comparative and International Private Law and a co-editor of the Zeitschrift für Japanisches Recht / Journal of Japanese Law.