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La requête de deux époux ayant fait l’objet d’une surveillance, dans des lieux publics, par les détectives d’une assurance, et se plaignant ainsi d’une violation de leur droit au respect de la vie privée, est manifestement mal fondée.

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The Dutch Supreme Court late in January has confirmed the lower court’s decision (see my report here) in Yukos, not to recognise the Russian liquidation order of 1 August 2006 regarding OAO Yukos Oil Company. The decision to recognise or not evidently is based on residuary Dutch conflict of laws (the Insolvency Regulation is not engaged).

At 4.1.3 the Supreme Court emphasises that the principle of mutual trust does not apply, as it would do between EU jurisdictions. It then does not perform the entire ordre public exercise from scratch, rather assesses whether the lower court properly carried out said analysis (as befits its role as a Supreme Court). Which it finds, the Court of Appeals did. Its ordre public check did not in the abstract test Russian court proceedings, rather tested whether the precise conduct of all involved parties led to use of the judicial system in a way which compromises the core Dutch legal order (see for more detail on that, my earlier post).

Textbook ordre public.

Geert.

A new blog specializing on international economic law matters as they relate to Africa has recently been created. AfronomicsLaw will complement the growing and important voice of scholars interested in international economic law with a focus on Africa. It will also offer policy makers, practitioners and others interested in these issues a forum to insightfully engage and reflect on developments on international economic law more contemporaneously.

The Editors are James T. Gathii (Loyola Chicago University Law School), Olabisi D. Akinkugbe (Schulich School of Law, Dalhousie University), and Nthope Mapefane (University of Pretoria) both copied on this email.

The blog hosts featured symposiums on topical themes and books. It will also highlight relevant news and forthcoming events. The Editors encourage submissions of an analytical and reflective nature. Individual and Symposium contributions should be sent to afronomicslaw@gmail.com
Ideally, submissions should not exceed 1000 words without prior arrangement with the blog editors. Footnotes can be used sparingly, but for readability hyperlinks will work better.

The most recent issue of the Zeitschrift für Vergleichende Rechtswissenschaft (German Journal of Comparative Law; Vol. 117 [2018], No. 4) features the following contributions:

 

Basel – Ein gebrochenes Versprechen?

Zur Entwicklung der Bankenregulierung in der Europäischen Union und in den Vereinigten Staaten 

Ann-Kathrin Kaufhold*

ZVglRWiss 117 (2018) 415-428

[Basel – a Promise Broken? – Regarding the Development of Banking Regulation in the European Union and the United States]

The Basel Committee on Banking Supervision was founded in order to harmonize prudential regulation of banks internationally. Today the Basel standards, in fact, strongly influence national banking regulation both in the European Union and in the United States. Yet, at the same time, European and US regulatory requirements for banks still differ substantially. Against this backdrop the article examines the success and failure of the Basel Committee and asks for the consequences of divergences in international banking regulation.

 

Entwicklung und Vielfalt von Bank- und Finanzsystemen 

Reinhard H. Schmidt* 

ZVglRWiss 117 (2018) 429-439

[Development and Diversity in Banking and the Financial Systems]

In its first part, the paper discusses the development of the banking systems and, more comprehensively, of the entire financial systems of Germany, Western Europe and other parts of the world under the aspect of diversity. In this discussion, the author distinguishes between, on the one hand, the diversity of the banking system of a given country or region and, on the other hand, that between countries or regions.

The overall finding is that banking and financial systems of different countries and regions differ more than it is generally expected. This raises the question addressed in the second part of the paper: Why do banking and financial systems differ so strongly or, in other words, why do we not observe a stronger convergence of these systems over time, and how can one assess the stunning degree of diversity of the banking and financial systems in different countries and regions? The author argues that from an economic policy perspective diversity of banking and financial systems not to be considered as a deficiency but rather a benefit.

 

National and International Banking Heterogeneity

Axel Kind*

ZVglRWiss 117 (2018) 440-454

The costs of the Global Financial Crisis in terms of lost GDP growth have been higher in Europe than in the US. This is likely due to the outbreak of the European Sovereign Debt Crisis. To countervail its negative effects, the EU has made considerable efforts to initiate the European Banking Union with its ideal of a level playing field among credit institutions. In spite of these harmonization efforts, the level of heterogeneity of banks across member states in terms of their average performance, capital adequacy, and asset quality remains high. Banks in the Southern and Eastern European periphery are found to be less profitable and riskier than their counterparts in other regions of the EU. Given that such differences can be traced back, at least partially, to country-specific factors – economic, legal, and institutional conditions – applying the same prudential rules to all EU banks may fail to comply with the level-playing-field paradigm and actually distort the competition among European banks. The European banking sector is characterized by a rich variety of governance structures – most notably the coexistence of shareholder banks and stakeholder banks. This abundance of governance systems should be viewed as valuable diversity rather than a sign of old-fashioned and outdated banking structures. In particular, the outperformance of cooperative and savings banks in several European countries – most notably in Germany – should induce regulators to reconsider the primate of shareholder banks and motivate further discussions about optimal governance structures in modern banking.

 

Differentiation and Convergence of Supervision in the European
Banking Union

Günter Franke*

ZVglRWiss 117 (2018) 455-477

Empirical evidence suggests that SME funding is more difficult in countries with weaker legal and economic conditions. In these countries, additional bank lending may generate higher social benefits. Operating under the same set of bank regulation, transitionally milder bank supervision in “weaker” countries might motivate banks to give more loans. This might reinforce economic growth, but also endanger financial stability. Depending on the objectives of regulation and supervision, transitional milder supervision might improve welfare. If such a policy is adopted, supervision should get stronger when legal and economic conditions improve. However, a deterioration in these conditions should not weaken supervision.

 

Die extraterritoriale Regulierung von international tätigen Banken 

Christoph Ohler*

ZVglRWiss 117 (2018) 478-491

[The Exterritorial Regulation of Internationally Operative Banks]

The contribution discusses the legal limits under public international law for states and the European Union when they regulate internationally operating banks. The business activity of such banks brings them in contact with many national legal orders. Once jurisdiction applies, they must comply with the prudential requirements of those states. In addition, the USA and the EU, in particular, claim the extraterritorial application of their supervisory laws in certain cases. Public international law, as it stands, does not prohibit the multiple regulatory burdens for the banks resulting from internationally concurrent regulatory powers. Neither the standards adopted by the Basel Committee on Banking Supervision nor the rules of the WTO or the principles under international customary law restrict significantly the jurisdiction of the states and the EU.

 

Das Zusammenspiel von Regulierung und Profitabilität im Bankensektor 

Johannes-Jörg Riegler*

ZVglRWiss 117 (2018) 492-504

[The Interaction of Regulation and Profitability in the Banking Sector] 

The Association of German Public Banks (Bundesverband Öffentlicher Banken Deutschlands, VÖB) has quantified the relationship between regulation and profitability for Germany’s top 17 banks since 2014. A sample bank which was formed as an aggregate of the institutions for the analysis shows the lack of profitability and the limits for the potential of accumulating and distributing profits, while the delta between profitability and capital costs complicates the access to the capital market. The finalisation of the Basel III reform package in December 2017 will impose additional regulatory requirements on banks.

The author warns of a loss of importance of the German and European banking industry in the face of international competition and pleads for a combination of necessary regulation and appropriate revenue opportunities for banks.

 

Konflikte bei der Durchsetzung des europäischen Kapitalmarktrechts – Koordinierungsbedarf zwischen Aufsichts- und Zivilrecht 

Dörte Poelzig*

ZVglRWiss 117 (2018) 505-525

[Conflicts in the Enforcement of European Capital Market Law – The Need for Coordination between Regulatory and Civil Law]

Recent European capital market law reforms have introduced a multitude of enforcement instruments, by both supervisory and civil law, all of which aim to enforce the law in accordance with the “effet utile”, i.e. in an effective, dissuasive and proportionate way. Frequently, supervisory and civil enforcement are treated as issues detached from one another. However, this separate treatment leads to tensions that are detrimental to the effective enforcement of capital markets law. The following article examines the underlying conflicts and their solutions, illustrated by three examples: the access to supervisory information by private individuals, the different interpretation of capital markets law by supervisory agencies and civil law courts, and the risk of multiple sanctions for the same cause of action.

 

Die Herausforderung regulatorischer Vielfalt 

Joachim Hoeck und Hans Christian Röhl* 

ZVglRWiss 117 (2018) 526-541

[The Challenges of Regulatory Diversity]

Regulatory variety results in a variety of different legal regimes and implementation practices. Whether being subjected to this regimes or applying it, one will have to develop strategies to cope with the resulting challenges. The papers tries to explore different legal instruments (standardization, recovery and resolution, subsidiarization and market access) and to show how instead of efforts to a harmonization a more and more divergent legal setting takes places and stresses the resulting problems.

 

Regulatorische Vielfalt aus der Perspektive einer Bank 

Mathias Otto*

ZVglRWiss 117 (2018) 542-556

[Regulatory Diversity from a Banking Perspective]

The globalization of the financial industry as well as tightened regulation of the sector significantly increased the potential for cross-border regulatory conflicts. International bodies like the Basel Committee try to address such conflicts by improving cooperation between national authorities and in the meantime have evolved into global standard setters. This leads to unification of regulatory rules which, however, encounter different economic and social environments in the various countries. Moreover, national authorities applying these rules are accountable to their respective national governments and parliaments. As a result, practice will have to continue to deal with regulatory conflicts that are not resolvable as a matter of principle and therefore search for a practicable solution for the individual case at hand.

 

Komplexe Compliance bei Banken

Interne Organisation und Konzerngestaltung bei Geschäften im In- und Ausland 

Rüdiger Wilhelmi*

ZVglRWiss 117 (2018) 557-571

[Complex Compliance in Banks – Internal Organisation and Corporation Organisation in Business Domestic and Abroad]

This contribution discusses which laws the compliance related to business domestically and abroad has to observe and whether it is possible to allocate and isolate compliance duties and risk connected with this business by internal organisation or the design of groups of companies. It concludes that with regard to banking compliance the separation principle in the law of groups of companies does not apply and it is only possible to allocate compliance duties but not to isolate compliance risk by the design of groups of companies.

 

 

* Prof. Dr. Ann-Katrin Kaufhold ist Inhaberin des Lehrstuhls für Staats- und Verwaltungsrecht an der Ludwig-Maximilians-Universität München. – Für wertvolle Unterstützung bei der Recherche danke ich herzlich meiner Mitarbeiterin Frau Dr. Ann-Katrin Wolff.

 

* Prof. Dr. Dr. h.c. Reinhard H. Schmidt ist Professor em. für Betriebswirtschaftslehre, insb. Internationales Bank- und Finanzwesen an der Goethe-Universität, Frankfurt am Main, und Seinorprofessor für International Banking im House of Finance der Goethe-Universität, Frankfurt am Main.

 

* Prof. Dr. Axel Kind, Chair of Corporate Finance, University of Konstanz.

 

* Prof. em. Dr. Dr. h.c. Günter Franke, Fachbereich Wirtschaftswissenschaften, Universität Konstanz. – I am very indebted to Jan Pieter Krahnen for intensive and controversial discussions. Moreover, I am grateful for helpful comments of the participants of the workshop in Konstanz on April 21/22, 2018, in particular to Roland Broemel, Hans-Helmut Kotz and Bernd Rudolph.

 

* Prof. Dr. Christoph Ohler, LL.M. ist Inhaber des Lehrstuhls für Öffentliches Recht, Europarecht, Völkerrecht und Internationales Wirtschaftsrecht an der Friedrich-Schiller-Universität Jena.

 

* Dr. Johannes-Jörg Riegler, Vorstandsvorsitzender der BayernLB und Präsident des Bundesverbandes Öffentlicher Banken Deutschlands, VÖB.

 

* Prof. Dr. Dörte Poelzig, M.jur. (Oxon), ist Inhaberin des Lehrstuhls für Bürgerliches Recht, Deutsches und Internationales Wirtschaftsrecht an der Juristenfakultät der Universität Leipzig. – Sie dankt Prof. Dr. Hans Christian Röhl für wertvolle Anregungen.

 

* Dr. Joachim Hoeck, Zürich ist Rechtsanwalt bei der Schweizer Großbank. Prof. Dr. Hans Christian Röhl ist Inhaber des Lehrstuhls für Staats- und Verwaltungsrecht, Europarecht und Rechtsvergleichung an der Universität Konstanz. – Der Beitrag gibt die persönlichen Auffassungen beider Autoren wieder.

 

* Dr. iur. Mathias Otto ist Rechtsanwalt und General Counsel of Infrastructure and Regulatory Advice einer internationalen Großbank. – Der Beitrag gibt die persönliche Auffassung des Autors wieder.

 

* Prof. Dr. Rüdiger Wilhelmi ist Inhaber des Lehrstuhls für Bürgerliches Recht, Handels-, Gesellschafts- und Wirtschaftsrecht sowie Rechtsvergleichung an der Universität Konstanz. Der Beitrag beruht auf einem Vortrag auf der interdisziplinären Tagung „Die Dynamik der Vielfalt im Finanzmarkt als Herausforderung für Recht und Ökonomik: Fragmentierung und Territorialisierung“ am 20./21.04.2018 in Konstanz.

(This announcement is provided by Dr. Jeanne Huang, who is now working in Sydney Law School)

International Civil and Commercial Dispute Resolution in Asia Pacific China and Australia Private International Law Forum
17th & 18th July 2019, Shanghai, China
CALL FOR PAPERS PROPOSAL
Submission Deadline: 15th April 2019
Send to: ecpfl_ecupl@163.com

With the increase of economic exchanges between countries in Asia Pacific, judges, arbitrators, and practitioners are more frequently called upon to address complex jurisdiction, choice of law, and enforcement issues. The robust development of private international law globally also requires us to explore new challenges and opportunities.

We invite scholars, at any stage of their career, working on private international law to submit expressions of interest to present at the conference, which will be held at the Changning campus (in the city center), East China University of Political Science and Law in Shanghai China on 17th-18th July 2019. The conference is designed to allow researchers to deliver work-in-progress papers to their peers. Conference languages are both English and Chinese. Simultaneous translation will be provided.
We are keen to receive proposals that focus on private-international-law issues, such as:
• Hague Judgments Project;
• Judicial assistance, especially between China and Australia;
• Jurisdiction, choice of law, and judgment recognition and enforcement;
• Cross-border dispute resolution in commercial and family law cases;
• Arbitration; and
• All other private-international-law issues related to our mandate.
We welcome proposals on private-international-law issues which are not specifically for China and Australia but have global importance.

SUBMISSION:
For paper proposals, please submit a title and max 200 word abstract, along with a one-para CV. For panel proposals, please submit a title and max 800 word abstract, along with a one-page CV covering 3-4 panel members.
Proposal Due: 15 April 2019. Announcement of successful submission: 15 May 2019.
Speakers are expected to cover their own transportation and accommodation. Catering will be provided during the conference.

ATTENDANCE:
We invite all interested in attending to do so at no registration fee. Please contact us at ecpfl_ecupl@163.com to reserve your seat. If you could also please pass on the invitation to both your graduate students and your colleagues, it would be greatly appreciated.

INTRODUCTION TO THE ORGANIZERS:
Founded on the site of the former St. John’s University in 1952, the East China University of Political Science and Law (ECUPL, formerly known as the East China Institute of Politics and Law) is among the first higher educational institutions established by the People’s Republic of China specializing in legal and political science education. Throughout the years, ECUPL has established the largest private international law research team in Shanghai, Supreme People’s Court International Judicial Assistance Research Centre, Centre for Proving Foreign Law, etc.
Established in 1855 and ranked 14th in the world by the QS World University Ranking in 2018, the University of Sydney Law School is home to exceptional legal educators, world-renowned researchers and esteemed professional practitioners. Private International Law is a compulsory course for every student at the Sydney Law School. The Centre for Asian and Pacific Law is located within Sydney Law School and its members have legal expertise in a wide variety of Asian jurisdictions, including China.
China Society of Private International Law (CSPIL) is a non-governmental organization to promote the development of private international law in China. Its members include academics, judges, practitioners and other legal professionals.
We look forward to welcoming you in Shanghai!

Le bilan annuel 2018 de la Cour européenne des droits de l’homme ne laisse place à aucune surprise majeure. Les chiffres ont été publiés le 24 janvier dernier. La Cour annonce avoir rendu 42 761 arrêts en 2018. La Russie prend la première place des pays rencontrant le plus de condamnations avec un taux de 20 %, soit 238 arrêts.

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Non lieu à renvoi

Pourvoi c/ Cour d'appel de Pau, chambre des mineurs, 25 juillet 2018

Pourvoi c/ Cour d'appel de Pau, Cabinet du Président de la chambre de l'instruction, 22 novembre 2018

Pourvoi c/ Cour d'appel de Grenoble, 1re chambre civile, 24 avril 2018

Tribunal des affaires de sécurité sociale du Gard, 7 février 2018

CCOO
SOPO
L’avocat général Pitruzzella propose à la Cour de constater l’existence d’une obligation pour les entreprises d’instaurer un système de mesure du temps de travail journalier effectif

Par un arrêt important, la Cour de justice de l’Union européenne se penche sur le régime de la litispendance dans le cadre des règlements Bruxelles I et Bruxelles II bis, à propos du cas où le juge saisi en second lieu prononce une décision au lieu de se dessaisir au profit du juge saisi en premier.

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Construction immobilière

Assurance dommages - ouvrage

Assurance dommages - ouvrage

Construction immobilière

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

M. Wendland: Procedural challenges within the system of international jurisdiction according to the new European regulations on matrimonial property regimes and the property consequences of registered partnerships: Well-known and innovative instruments from the experimental laboratory of the European Commission

As from 29th January 2019 two new EU regulations will apply establishing a comprehensive legal framework which regulates jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (2016/1103) and of the property consequences of registered partnerships (2016/1104). The two regulations will close one of the last remaining gaps within the system of International Private and Procedural Law in family matters. Its regulative approach is as new as innovative even though not entirely unproblematic. This paper examines selected problems of both regulations from the perspective of International Procedural Law and presents possible solutions.

R. Magnus: The implied choice of law in international succession and family law

Recent EU Regulations have led to major changes in international succession and family law. This article compares the conflict of laws rules of the different Regulations dealing with the possibility to choose the applicable law implicitly. The main focus lies on a question not yet much discussed, namely whether or not the validity of the implied choice depends on the validity of the legal act from which it is inferred (e.g. will, agreement as to the succession, marriage contract, prenuptial agreement). As conclusion it is proposed that careful distinctions should be made taking into account the different reasons that might hinder the validity of a legal act (in particular the distinction between invalidity because of a lack of the required form and invalidity due to a conflict with public policy) and specific particularities of family and succession law.

F.Eichel: The jurisdictional concept of ‘the place of the event giving rise to the damage’ and international trade mark infringements spread through digital media

Both the German Federal Court (BGH, 19.11.2017 – I ZR 164/16) and the Austrian Supreme Court (OGH, 20.12.2016 – 4 Ob 45/16w) have applied to Article 125(5) of Regulation No 2017/1001 (EU trade mark regulation) the general case law on the determination of “the place of the event giving rise to the damage” in terms of Art. 7(2) of the Recast Brussels Regulation. If that was correct, Art. 125(5) would, to a large extent, lose its effectiveness. Contrary to the position of the OGH and the BGH, the ECJ rulings “Hejduk” and “Wintersteiger” on Art. 7(2) Brussels Regulation are not applicable to Art. 125(5), and neither is the ECJ ruling “Nintendo ./. BigBen” which has no jurisdictional dimension. Instead, Art. 125(5) Regulation No 2017/1001 (as well as Art. 82(5) Regulation No 6/2002) must be interpreted independently and should be aligned with Article 2:202 of the “CLIP Principles”. This latter model rule places jurisdiction for infringement claims upon the courts of a state when an alleged infringer who has not acted in this state has directed his or her activities to the forum.

P. Schlosser: International Jurisdiction in case of Transborder Transportation in Execution of a Single Order

The direct claim of the injured party, or its insurer, may be introduced alternatively in the court or the place of dispatch or in the court of the place of destination.

K. Thorn/C. Lasthaus: Legal Succession concerning Immovable Property under the European Commission’s Succession Regulation

The European Commission’s succession regulation 650/2012 aims to harmonise the application of succession law among EU member states. However, its material scope, in particular the ambit of the exemptions under Art. 1 para. 2, has remained contentious. In recent decisions, the European Court of Justice (ECJ) and the Austrian Supreme Court (OGH) leaned towards a narrow interpretation of the exemptions provided by Art. 1 para. 2 lit. k and l thereby extending the Regulation’s scope. The ECJ held that under Art. 1 para. 2 lit. k and l, 31 a legacy “by vindication”, which directly grants a proprietary interest in the bequeathed, in this case immovable, property to the legatee, should be given effect even in member states where proprietary interests cannot be directly transferred by legacy. The OGH discussed the scope of Art. 1 para. 2 lit. l concerning the constitutive effect of a recording in the public register provided by the law of the Member State in which the register is kept. In this legal review, the authors argue that while the courts’ intention to strengthen the Regulation’s objective is to be supported, their reasoning should have been more precise.

A. Golab: Cross-border implications of fictitious service and unreasoned judgements in the EU

In the present case the Federal Court of Justice addressed the issue of acceptability of effects produced by a Polish court’s recourse to fictitious service of documents from the perspective of German procedural public policy. The aim of the annotation is to assess whether the application of Article 1135 (5) of the Polish Code of Civil Procedure met the criteria of public policy exception and how the conclusion of this analysis might apply to other similar instances where fictitious service is at play with regard to recognition or enforcement of judgements in the Brussels regime. In addition, the annotation will also address the issue of an unreasoned Polish judgment, which was also expounded on by the Federal Court of Justice.

A.-S. Tietz: The notarisation of articles of association incorporating a German Limited Liability Company (GmbH) by a Swiss notary based in the Canton of Berne

The Higher Regional Court of Berlin (Kammergericht) held that a German Limited Liability Company (GmbH) had been properly incorporated, even though its articles of association had been notarised by a Swiss notary in the Cantone of Berne in Switzerland. It reversed the decision of the District Court (Amtsgericht) of Charlottenburg which had refused to enter the company into the Commercial Register as it had deemed the content of the foreign deed invalid. The Higher Regional Court held that the foreign notarisation had substituted a notarisation carried out by a German notary, as the notarial deed had been read aloud to the participants in the presence of the notary, and subsequently approved and signed personally by the participants. It therefore ordered the District Court to enter the company into the German Commercial Register. Although this was the first time that a German Higher Regional Court had been confronted with this question, the decision has revived the debate on the “recognition” of legal relationships evidenced by foreign deeds under German corporate law. The article contributes to the discussion by addressing the legal questions resulting from the decision, which concern the applicable law to the formal requirements as well as the “substitution” of a notarisation by a German notary by a Bernese notary within the meaning of Sec. 2 German Limited Liability Companies Act.

S.L. Gössl: Regulatory Gaps and Analogies in Conflict of Laws – Example: Embryo Parenthood

The German Supreme Court (BGH) had to decide which law to apply to the (assumed) parenthood on embryos in California. The court developed a conflict of laws rule not reflecting the German substantive law regarding this issue. The article analyses and criticizes the decision. It focuses on the question how, from a methodological point of view, private international law deals with regulatory gaps, and how to close them by analogy. Eventually, the article proposes an alternative characterization of the issue and, consequently, an alternative conflict of laws rule. It furthermore shows that the most important gap lies in the (deficient) substantive law where regulation is needed urgently.

Planta Tabak
Liberté d'établissement
L’interdiction par étapes, au niveau de l’UE, de cigarettes et tabac à rouler contenant un arôme est valide