Max Planck Society

Max Planck Institute for Comparative and International Private Law

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Online version Handwörterbuch des Europäischen Privatrechts

“Comparative Legal Research on Eurasian Law” Project

From 2010 – 2013, the unit led a project sponsored by the Volkswagen Foundation, “Comparative Legal Research on Eurasian Law”. The project was led by Dr. Eugenia Kurzynsky-Singer, the Institute research fellow responsible for Russia and other CIS nations. The project offered junior researchers from the countries of the Caucasus and Central Asia the chance to conclude a long-term research stay at the Institute. The undertaken studies provided a glimpse into the transformation process underway in the legal systems of the post-soviet realm and formed a sturdy basis for an analysis of the legal reception process. The findings of the project were presented at an international conference on 18-19 October 2012 in Tiflis (Georgia) and have now been published (2014) in a volume standing as part of the Mohr Siebeck series “Beiträge zum ausländischen und internationalen Privatrecht”. Titled “Transformation durch Rezeption? – Möglichkeiten und Grenzen des Rechtstransfers am Beispiel der Zivilrechtsreformen im Kaukasus und in Zentralasien” [Transformation through reception? – The adoption of western legal institutions by nations of the Caucasus and Central Asia], the work has been edited by Dr. Kurzynsky-Singer.

The Scholarship Programme

The scholarship programme comprised 8 scholarships that were conferred on young researchers from nations of the Caucasus and Central Asia. The research stays of the last of the three successive groups ended in the summer of 2012. During their respective nine-month stays at the Institute, the participants of the programme had the opportunity to conduct comparative research on a civil or business law topic of their own choosing with reference to its manifestation in their home country. Staff members of the Institute’s unit on Russia and other CIS nations intensively supervised their research efforts.


In each case, the scholarship recipients devoted themselves to a self-selected and narrowly drawn topic of civil or business law as found in their home legal system. The intensive cooperation between the German scholars working in connection with the project and the scholarship participants allowed various perspectives to be taken into account in the inquiries and insured that the comparative law dimension, especially the reception of legal institutes and ideas from European legal systems, stood at the forefront.


The examinations undertaken by the scholarship recipients were then subject to a comprehensive analysis which, in particular, aimed to determine the degree to which the reception of western legal thought infused the transformation of post-soviet legal systems.


Alongside the pursuit of scholarly knowledge, the support offered by the project will help in the future to establish the programme participants as intermediaries between Germany and their respective home countries. By gaining insight into western legal thought the scholarship recipients could internalise various “western” legal conceptions that might later – in their own countries – serve as a basis for new legal impulses which are dually premised on a market orientation and an appreciation of individual liberties.

Conference in Tiflis (Georgia) 18-19 October 2012

Conference “The Development of Private Law in the Caucasus and Central Asia. Transformation by means of Legal Transplants?” 18-19 October 2012 in Tiflis (Georgia)


In order to discuss the findings of the programme, the Max Planck Institute for Comparative and International Private Law co-sponsored an international conference together with the Ivane Javakhishvili Tbilisi State University. Supported by the Volkswagen Foundation, the conference was held on 18-19 October 2012 in Tiflis (Georgia) under the title “Entwicklung des Privatrechts im Kaukasus und in Zentralasien. Transformation mittels legal transplants?” [The Development of Private Law in the Caucasus and Central Asia. Transformation by means of Legal Transplants?]. The submissions of project participants detailing their findings were framed by talks from prominent legal scholars from Germany, the Caucasus and Central Asia which offered insight into the process of legal transformation in the post-soviet realm. Discussions held after each presentation further explored the problems of transformation. In his opening talk on Georgia and the Europeanisation of private law, Director of the Max Planck Institute Prof. Dr. Dr. h.c. mult. Jürgen Basedow, LL.M. (Harvard Univ.) described the need for Georgia – which had taken Germany as its model for legal development – to not lose sight of the Europeanisation of German law. Thereafter, Prof. Lado Chanturia spoke on the developmental tendencies in the civil law of the countries of the Caucasus and Central Asia. Although it is true that following the collapse of the Soviet Union the nations at issue implemented profound civil law reforms and enacted new civil codes, Prof. Chanturia argued that the private law regimes of the post-soviet nations, particularly those following the CIS Model Civil Code, are not entirely free of earlier soviet burdens.


After the introductory addresses, the section focused on legal transplants commenced, this being led by Prof. Tevdore Ninidze. First, Prof. Lasha Bregvadze explored the theory of legal transplants. Upon an overview of the notion, he advanced that there is not a “single” theory of legal transplants. Rather, the term embodies a multi-disciplinary dimension and is defined by a number of different theories. The second talk of the section illustrated the topic of legal transplants by drawing on the example of the reception of German civil law in Georgia. Specifically, Prof. Besarion Zoidze gave an overview of the historical links and points of contact between Georgian and German law.


The last segment of the day’s conference activities were dedicated to civil law reform in the post-soviet countries, this being done through the lens of individual themes of inquiry from Azerbaijan, Georgia and Kazakhstan. The section was led by Prof. Maidan Suleymenov.


First, Prof. Svetlana Moroz outlined the development of civil law in Kazakhstan. The point of departure for her presentation was a look at the boundary between civil and public law. Against the background of soviet legal thought, which assumed a primacy of public law, the creation of market-economy-oriented civil law required the drawing of boundaries between these two areas of law. The codification efforts played an important role in the development of Kazakhstan national civil law and for the regulation of market relationships. However, it is worth observing that a significant portion of the enacted laws and rules have had only a transitional character. In contrast with the earlier point of time focused on market development, the Kazakhstan state is presently having recourse to an increasing number of public law rules for the purpose of regulating market relationships.


Subsequently, Dr. Elchin Usub spoke on the development of Azerbaijan’s civil law. After summarising the structure of the Civil Code, Usub depicted important changes seen in the – thus far – largest amendment of the law in 2004. In closing, Usub described some problems that are curtailing legal advances in Azerbaijan. He named the inadequate regulatory effect projected by the law on account of inconsistent court rulings, the still-deficient publication of court decisions, and the absence of explanatory memoranda despite corresponding regulations.


The next two speakers considered property law in the post-soviet legal realm. The inquiry was commenced by Dr. Sergej Skryabin who looked at the development of property in Kazakhstan. He suggested that the current system of law in Kazakhstan was shaped by a large variety of legal influences. He saw the perspectives on property law in Kazakhstan as being linked with the legal integration in the post-soviet realm, which accordingly implied certain national particularities in respect of the regulation of property law. Nevertheless, the (European) continental “Pandekten” system of civil law should remain the centre of orientation.


This was followed by an analysis of Georgian property law by Prof. Tamar Zarandia. The scholarship recipient of the post-graduate programme presented the findings of a study concluded in cooperation with Dr. Kurzynsky-Singer on the reception of German property law in Georgia. The reception of German law freed Georgian property law from many relics of soviet law; however, as not all the German legal institutes made their way into Georgian property law, differences between the two legal regimes are the result.


The last two lectures of the first day looked at company law. The podium was initially assumed by Prof. Burduli, who closely detailed the reception of German and US company law in Georgia. Thereafter, Prof. Farkhad Karagusov discussed the development of company law in Kazakhstan.


The second day of the conference saw the scholarship recipients present their research findings, papers also being published in a project volume. The second day’s section was headed by Dr. Kurzynsky-Singer.


The ensuing discussions were introduced by a talk from Dr. Kurzynsky-Singer which asked the degree to which the reception of foreign legal rules could be expected to initiate the legal and social transformation of a post-soviet nation. One must keep in mind that in the process of embarking on civil law reforms in the Caucasus and Central Asian nations, legal transplants meet with a legal landscape that is decisively shaped by a socialist legal culture and, thus, one that reflects the determinations of an authoritarian state. The legal transplants originating from western legal systems, by contrast, reflect the notions of a social market economy, the rule of law and private autonomy. The result is a competition between, on the one hand, the imported legal rules and principles and, on the other, the existing legal tradition. The structure of this conflict, which can vary in individual cases, holds the key to understanding the respective processes of legal reception. This thesis was expanded upon on the basis of the preceding lectures.

Project Volume: “Transformation through Reception?

Project Volume: "Transformation through Reception? – The Potential and Limits of Legal Transplants as Exemplified by the Civil Law Reforms in the Caucasus and in Central Asia"

The findings of the project have been documented in a volume titled “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]. Edited by Dr. Eugenia Kurzynsky-Singer, the work was published in April 2014 by the Mohr Siebeck Publishing House as part of the series “Beiträge zum ausländischen und internationalen Privatrecht”.


Part I of the volume introduces the topic with a comprehensive analysis of the reception process in the target region that is based on the overall findings of the project. In her contribution, Dr. Kurzynsky-Singer focuses on the operation of legal transplants and proposes a model which may describe and predict the expected effects. This study is supplemented by three further entries. Pankevich considers the phenomenon of legal transplants in a sociological context through an examination of the social models of region’s countries. Grenz, in his article, describes the development of civil law in the Caucasus and Central Asia in order to make clear the role and impact of the legal culture of the legal systems studied. Finally, as exemplified by German rules on the evasion of law, Dr. Kurzynsky-Singer shows how a legal transplant can be shaped by the overall structure of the original legal regime and (considering the example of Russian law) demonstrates what effects this may have on the reception of the particular legal institute.


A second emphasis of the volume is found in Part II with its examinations of individual questions of civil and business law as encountered in the Caucasus and Central Asian nations. Authored primarily by project scholarship recipients, the entries provide insight into the transformation process witnessed in the authors’ respective home legal systems and thereby stand as the foundation for the comprehensive introductory analysis.


The inquiries cover a wide range of legal fields. An analysis of Georgian property law written by Kurzynsky-Singer and Zarandia considers the reception of German property law in Georgia. Here, the German Civil Code served as the reference code in the formulation of the new Georgian Civil Code but a complete adoption of the legal institute was not undertaken. This means, for instance, the causal tradition system of the soviet era remains and good faith acquisition has only been partially approximated. The reception of German property law in Georgia is thus limited to the basic structures, a fact that significantly changes the character of the received rules.


A first comprehensive study of the new 2009 Georgian rules on arbitrability is undertaken in a contribution from Tsertsvadze. He explores the references to the New York Convention and the UNCITRAL Model Law and subjects Georgian arbitration practice to a comparative assessment in respect of standards found in established arbitration regimes.


In an article from another scholarship recipient from Georgia, Giorgishvili, considers Georgian consumer law and offers an intriguing look at the reception process in a legal area which is new to Georgia. She describes the parallels to the European regulations and gaps which simultaneously exist in the Georgian rules on consumer protection.


In an entry authored by a non-programme participant, Vashakidze reports on the codification of private international law in Georgia. He shows that while the provisions in this legal area are highly oriented on European law, they play a rather minor role in legal practice.


The article by Pak considers as its central point Uzbekistan trademark law as relates to the topic of a likelihood of confusion. After having detailed the various categories of possible confusion, the author explains why trademarks in Uzbekistan enjoy a broader scope of protection than in the EU.


The second treatment of Uzbekistan law is performed by Djuraeva and is dedicated to the personal non-pecuniary rights of minors. She provides an account of the modernisation of Uzbekistani family law, based in part on the country’s 1992 ratification of the UN Convention on the Rights of the Child. In order to evaluate the protection of the rights of minors, she analyses the Uzbekistani Family Code of 1998 as well as a 2008 law guaranteeing the rights of minor children.


In her article, Dosmanova addresses the legal nature of contracts regarding the use of natural resources in Kazakhstan. Here, the native legal landscape is witness to a dispute as to whether these investments contracts (to which the state is a party) are properly characterised as private or public law contracts. Dosmanova comes to the conclusion that the contracts demonstrate a mixed nature and, consequently, in order to answer the qualification question, one must first have reference to the nature of the disputed rule.


Finally, Part III of the work presents three papers presented at the closing conference which provide further context for the topics considered in the volume. These include the lectures by Basedow on Georgia and the Europeanisation of private law, by Chanturia on civil law developments and trends in countries of the Caucasus and Central Asia, and by Usub on the development of civil law in Azerbaijan. An article summarising all of the papers presented at the conference as well as the ensuing discussions rounds out this final part of the volume.