Agrégateur de flux

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features four articles on private international law. The English abstracts, kindly provided by the journal’s editor-in-chief, Prof. Dr. Dörte Poelzig (M.jur., Oxon), University of Leipzig, read as follows:

Die Abwicklung von Bankengruppen und der Einfluss von Trennbankenregeln im transatlantischen Rechtsvergleich

Moritz Renner und Roman Kowolik*

ZVglRWiss 117 (2018) 83-116

[The Resolution of Banking Groups and the Influence of Bank Separation Rules –
a Transatlantic Comparison]

In the wake of the recent financial crisis, structural reforms of the financial sector have been intensely discussed as a means to address the failure of systemically important banking groups. In the US, the prevalent resolution strategy solely targets the top holding company of a banking group. This approach ought to enable the resolution of cross-border operating banking conglomerates while preserving the financial and organizational structure of the group and the operational contractual relations of its subsidiaries. In contrast, this resolution strategy has not yet prevailed within the European Union due to the traditional universal bank structure of European banking groups that impedes such an approach. The attempt of the European legislator to introduce bank separation rules had the potential to mitigate these structural constraints. However, the European Commission recently withdrew its proposal and hence stopped the formerly envisaged structural reforms. Considering prospective reform attempts, the European legislator should favor a functional separation of business areas within a banking group over group-wide activity restrictions in order to facilitate a centralized resolution approach.

__________

The Regulation of Bitcoin and Other Virtual Currencies under Japanese Law in Comparative Perspective

Christopher Danwerth*

ZVglRWiss 117 (2018) 117-155

Japan amended its Payment Service Act to regulate virtual currency exchange service providers in April 2017. Those providers must register with the FSA, prevent money laundering and terrorist financing and ensure customer protection. The regulation is mainly driven by the Mt. Gox bankruptcy. In Germany, virtual currencies are considered “units of account” and are, therefore, “financial instruments”, falling under within the scope of the German Banking Act. The Japanese and German regulations differ in technicality and structure. Regarding the content, both approaches are broadly similar. The rise of Initial Coin Offerings, high volatility and speculation and unregulated online wallet services require further adjustments that should lean to a capital market-based regulation, including a prospectus requirement, investor tests and the prevention of insider trading and market manipulation.

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Are Statutory Damages the New Punitive Damages? –
Haftungs- und Prozessrisiken durch pauschalierte Schadenersatzansprüche im U.S.-amerikanischen Recht

Martin Konstantin Thelen*

ZVglRWiss 117 (2018) 156-188

In the United States, statutory damages allow plaintiffs to sue even if they cannot demonstrate the precise economic harm they have suffered from the defendant’s violation of a statute. As a result, the alleged damages can exceed the actual harm by far. When thousands of consumers join together in a class action, the multiplication effect makes defendants face immense liability amounts. The question whether and how to reduce these amounts is still unsettled in U.S. law. Vice versa, German courts have to decide whether American class actions for statutory damages shall be served and U.S. judgments shall be recognized. This article shows that German courts cannot refuse to serve a suit under Art. 13(1) of the Hague Service Convention. However, based on the public policy exception of § 328(1)(4) German Civil Procedure Code, they can deny the recognition of a foreign statutory damages judgement if it does not specifically indicate what kind of harms shall be compensated by the statutory damages amount. Notably, if the foreign judgement itemizes the kinds of intangible harms the plaintiff shall be compensated for, German courts should recognize this verdict at least in part.

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Effekte des Brexit aus europäisch gesellschaftsrechtlicher Perspektive

– de lege lata über lege ferenda –

Jean Mohamed*

ZVglRWiss 117 (2018) 189-213

[Effects of the Brexit from the Perspective of European Corporate Law]

Around nine months after the historic Brexit referendum on the 23rd of June 2016, the British government has initiated the withdrawal process from the EU on the 29th of March 2017. For European company law – a British top export – Brexit could soon have far-reaching implications with regard to the recognition of UK-legal forms. With this article, two issues should be addressed from a corporate law perspective. Firstly (according to law as it exists) the implications that affect the corporate law of the remaining Member States and of the United Kingdom itself are briefly presented. Then, perspectives on corporate law are discussed de lege ferenda and in concreto for the new British “partnership” with the European Union. At any rate, the list of questions and topics is long: Will the common law still shape the future of European corporate law? Who will benefit from the new regulatory competition in company Law (GER/UK)? And it is also questionable what will happen to companies based on the UK model established within the UK and having their headquarters in another Member State after a “hard” Exit. In this context, the author discusses “international private law”, “intertemporal law” and “cross-border transitions”.

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*              Prof. Dr. Moritz Renner ist Inhaber des Lehrstuhls für Bürgerliches Recht, Internationales und Europäisches Wirtschaftsrecht an der Universität Mannheim. Dr. Roman Kowolik ist derzeit LL.M.-Kandidat an der Cornell Law School.

*              Dr. iur. Christopher Danwerth, LL.M is research assistant at the Institute for Company and Capital Market Law, University of Muenster. This article is the result of a research stay at Ch?? University, Tokyo, that was funded by the Japan Society for the Promotion of Science (JSPS). The author wishes to thank Prof. Dr. Nobuhiko Sugiura and Prof. Dr. Tetsuo Morishita for good discussions and valuable comments as well as Prof. Dr. Marc Dernauer, LL.M. for his support and coordination of the research stay.

*              Martin K. Thelen, LL.M. (Columbia) ist Referendar am LG Frankfurt und Doktorand bei Prof. Dr. Matthias Lehmann, Institut für Internationales Privatrecht und Rechtsvergleichung der Universität Bonn.

*             Dr. Jean Mohamed, Mag. iur., ist wissenschaftlicher Mitarbeiter am Seminar für Handels-, Schifffahrts- und Wirtschaftsrecht der Universität Hamburg und Referendar am Hanseatischen OLG Hamburg. Zum Zeitpunkt der Erstellung der Abhandlung war er Doktorand bei Prof. Dr. Ulrich Noack an der Heinrich-Heine-Universität Düsseldorf. Die Abhandlung wurde im September 2017 mit dem 1. Platz des Stiftungspreises 2017 der Stiftung Wissenschaftsforum Wirtschaftsprüfung und Recht ausgezeichnet und im Rahmen einer Podiumsdiskussion am 4. 9. 2017 vorgestellt. Der neueste Stand von Schrifttum und Rechtsprechung wurde nachgetragen.

日常的に法律事務所を利用しているような人は、ほとんどいないでしょう。それだけに、いざ何らかの法的問題を抱えたとき、法律事務所に赴く際は少し気が引けるかもしれません。敷居が高く感じる、まともに対応してくれるのだろうか、難しい話をされてしまいそう、そんな不安が頭をよぎるのではないでしょうか。

ですが、過度に気構える必要はありません。多くの法律事務所では、一般の利用者が訪れやすいよう間口を広く設けてくれています。各法律事務所のホームページを見たとき、法律に詳しくない人向けに分かりやすく相談の流れを開設している点からもその様子は窺えます。そもそも、一般国民の味方であってこその法律事務所なので、いかに相談のしやすさをアピールできるかという点に力が注がれているようにも感じられます。

近年特に力注がれている問題として、債務整理が挙げられます。日本国民の多くが借金を利用しているといわれる昨今、それにまつわるトラブルも少なくないのです。それに際し、債務整理のサポートをメインとする法律事務所も多く登場してきています。

債務整理をおこなうと、借金の負担の軽減に期待が持てます。ですが、借金問題や法律にあまり詳しくない人にとって、債務整理は分かりにくい存在でもあるかもしれません。今回は、法律事務所の魅力や債務整理について詳しく特集しました。借金問題の解決を目指している、そしてどのように解決すれば分からず悩んでいるといった人は、ぜひご参考ください。

L’ex-directrice du magasin Tati de Barbès, qui comparaît pour harcèlement moral à l’encontre de France Javelle, réfute les accusations. Sa défense met en cause un système dont elle ne serait que la courroie de transmission, un management constitutif en soi des faits de harcèlement.

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It is my pleasure to announce the release of the Mélanges en l’honneur du Professeur Bertrand Ancel – Le droit à l’épreuve des siècles et des frontières.

Bertrand Ancel has devoted his academic career to private international law and civil law, enriched with comparative law and history. Professor emeritus of the University Paris II Panthéon-Assas, editor-in-chief of the Revue critique de droit international privé from 2014 to 2017, author of the Éléments d’histoire du droit international privé, he is also a co-author, with Yves Lequette, of the Grands arrêts de la jurisprudence française de droit international privé. Combining in-depth historical knowledge of conflict of laws and international litigation with accurate analysis of the most recent case law, Bertrand Ancel belongs to the scholars who preserve private international law from dogmatism.

The many articles in French, Spanish and Italian, forming the Mélanges, have been gathered to honor his erudition, intellectual accuracy and generosity.

The list of all contributors is available here, and the book can be ordered here.

Earlier this month, the English High Court rendered an interesting decision on the (un-)availability of anti-suit injunctions in protection of arbitration agreements under the Brussels I Recast Regulation (No 1215/2012). In Nori Holdings v Bank Otkritie [2018] EWHC 1343 (Comm), Males J critically discussed (and openly disagreed with) AG Wathelet’s Opinion on Case C-536/13 Gazprom and confirmed that such injunctions continue to not be available where they would restrain proceedings in another EU Member State.

The application for an anti-suit injunction was made by three companies that had all entered into a number of transactions with the defendant bank involving shares of companies incorporated in Cyprus. These arrangements were restructured in August 2017. In October 2017, the defendant alleged that the agreements entered into in the course of this restructuring were fraudulent and started proceedings in Russia – based, inter alia, on Russian bankruptcy law – to set them aside. In January 2018, the claimants reacted by commencing LCIA arbitrations against the bank – based on an arbitration clause in the original agreements, to which the restructuring agreements referred – seeking a declaration that the restructuring agreements are valid and an arbitral anti-suit injunction against the Russian proceedings. Meanwhile, each of the parties also commenced proceedings in Cyprus.

The defendant bank advanced several reasons for why the High Court should not grant the injunction, including the availability of injunctive relief from the arbitrators and the non-arbitrability of the insolvency claim. While none of these defences succeeded with regard to the proceedings in Russia, the largest individual part of the decision ([69]–[102]) is dedicated to the question whether the High Court had the power to also grant an anti-suit injunction with regard to the proceedings in Cyprus, an EU member state.

The European Court of Justice famously held in West Tankers (Case C-185/07) that ‘even though proceedings do not come within the scope of Regulation No 44/2001, they may nevertheless have consequences which undermine its effectiveness’ (at [24]) and that

[30] […] in obstructing the court of another Member State in the exercise of the powers conferred on it by [the Regulation], namely to decide, on the basis of the rules defining the material scope of that regulation, including Article 1(2)(d) thereof, whether that regulation is applicable, such an anti-suit injunction also runs counter to the trust which the Member States accord to one another’s legal systems and judicial institutions and on which the system of jurisdiction under [the Regulation] is based […].

Accordingly, it would be ‘incompatible with [the Regulation] for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings before the courts of another Member State on the ground that such proceedings would be contrary to an arbitration agreement’ (at [34]).

Shortly thereafter, the European legislator tried to clarify the relationship between the Brussels-I framework and arbitration in Recital (12) of the recast Regulation. This Recital included, among other things, a clarification that a decision on the validity of an arbitration agreement is not subject to the Regulation’s rules on recognition and enforcement. Rather surprisingly, this was understood by Advocate General Wathelet, in his Opinion on Case C-536/13 Gazprom, as an attempt to ‘correct the boundary which the Court had traced between the application of the Brussels I Regulation and arbitration’ (at [132]); consequently, he argued that ‘if the case which gave rise to the judgment in [West Tankers] had been brought under the regime of the Brussels I Regulation (recast) […] the anti-suit injunction forming the subject-matter of [this judgment] would not have been held to be incompatible with the Brussels I Regulation’ (at [133]). AG Wathelet went even further when he opined that Recital (12) constituted a ‘retroactive interpretative law’, which explained how the exclusion of arbitration from the Regulation ‘must be and always should have been interpreted’ (at [91]), very much implying that West Tankers had been wrongly decided.

The Court of Justice, of course, did not follow the Advocate General and, instead, reaffirmed its decision in West Tankers in Case C-536/13 Gazprom. As Males J rightly points out (at [91]), the Court did not only ignore the Advocate General’s Opinion, it also very clearly regarded West Tankers a correct statement of the law under the old Regulation. While Males J considered this observation alone to be ‘sufficient to demonstrate that the opinion of the Advocate General on this issue on [sic] was fundamentally flawed’ (at [91]), he went on to point out six (!) further problems with the Advocate General’s argument. In particular, he argued (at [93]) that if the Advocate General were right, any proceedings in which the validity of an arbitration were contested would be excluded from the Regulation, which, indeed, would go much further than what the Recital seems to try to achieve.

Consequently, Males J concluded that

[99] […] there is nothing in the Recast Regulation to cast doubt on the continuing validity of the decision [in West Tankers] which remains an authoritative statement of EU law. […] Accordingly there can be no injunction to restrain the further pursuit of the Bank’s proceedings in Cyprus.

Of course, this does not mean that claimants will receive no redress from the English courts in a case where an arbitration agreement has been breached through proceedings brought in the courts of another EU member state. As Males J explained (at [101]), the claimants may be entitled to an indemnity ‘against (1) any costs incurred by them in connection with the Cypriot proceedings and (2) any liability they are held to owe in those proceedings.’ While one might consider such an award to be ‘an antisuit injunction in all but name’ (Hartley (2014) 63 ICLQ 843, 863), the continued availability of this remedy in the English courts despite West Tankers has been confirmed in The Alexandros T [2014] EWCA Civ 1010. In the present case, Males J nonetheless deferred a decision on this point as the Cypriot court could still stay the proceedings and because the claimants might still be able to obtain an anti-suit injunction from the arbitral tribunal.

Cour d'assises

Bail d'habitation

Bail d'habitation

Concurrence

Pourvoi c/ Chambre de l'instruction de la cour d'appel de Dijon, 16 mai 2018

Pourvoi c/ Cour d'appel de Paris - pôle 2, chambre 2, 18 janvier 2018

The British Institute of International and Comparative Law is organising an event to be held on 3 July on the recent developments pertaining to third-party effects of assignment.

Time: 16:30 – 19.00 (Registration open from 16:00)

Venue: British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London WC1B 5JP

The panel of distinguished speakers will discuss the recent proposal for an EU Regulation on the law applicable to third-party effects of assignment. The Rome I Regulation regulates contractual aspects of assignment but for a prolonged period of time the third-party aspects of assignment were surrounded by haze. Third-party effects of assignment are notoriously important in certain industries, such as securitisation and factors. Speakers involved in the preparatory work leading up to the proposal reflect on the operation of the proposal in practice. Further details can be found here.

Leuphana Law School is looking for a highly skilled and motivated Ph.D. candidate and fellow (wissenschaftliche/r Mitarbeiter/in) on a part-time basis (50%) as of 1 September 2018.

The successful candidate holds a first law degree (ideally the First State Exam (Germany) or LL.M. (UK)/J.D. (USA)/similar degree) and is interested in private international law, international economic law, and intellectual property law-all from a comparative and interdisciplinary perspective. A very good command of German and English is expected.

The fellow will be given the opportunity to conduct his/her own Ph.D. project (under the faculty’s regulations). The position is paid according to the salary scale E-13 TV-L, 50%. The initial contract period is three years, with an option to be extended. The research fellow will conduct research as part of the unit led by Professor Dr. Tim W. Dornis (Chair in Private Law, International Private and Economic Law, and Comparative Law) and will have an independent teaching obligation (2 hours/week).

If you are interested in this position, please send your application (cover letter, CV, and relevant documents) by 31 July 2018 to

Leuphana Universität Lüneburg
Personalservice, Corinna Schmidt
Kennwort: WiMi Rechtswissenschaften
Universitätsallee 1
21335 Lüneburg
bewerbung@leuphana.de

Leuphana University is an equal opportunity employer.

The job advert in full detail is accessible here.