slide - Jura - Universität Mannheim

Preliminary remark
This presentation is NOT
self-explanatory. It is
neither meant to be an
outline nor a textbook.
This presentation only
serves as a visual help for
those attending the lecture
and is contingent on the
explanations and
(substantial!) additions
being given orally and on
the blackboard during the
lecture.
Private International Law
Universität Mannheim
Spring Semester 2015
EW 148
Priv.-Doz. Dr. Juliana Mörsdorf-Schulte
LL.M. (Berkeley)
juliana@netcologne.de
This presentation ...
... accompanying the PIL lecture, as well as the legal texts, are
available online:
http://www.jura.uni-mannheim.de/dozenten/
lehrbeauftragte_lehrkraefte/dr_juliana_moersdorf_schulte/in
dex.html
... for important questions please feel free to contact
juliana@netcologne.de
… or come and see me during the breaks
Legal texts
Comprehensive collection of relevant statutes and treaties in German:
Jayme/Hausmann, Internationales Privat- und Verfahrensrecht, 17th
Ed. 2014.
Most relevant treaties and all EU-based legal texts are available in
English on the Internet: www.eur-lex.europa.eu and www.hcch.net etc.
English Translation of the German Civil Code (BGB) and of the
Introductory Act to the Civil Code (IACC) available online
www.gesetze-im-internet.de/Teilliste_translations.html
The most important legal texts in English (official version or
translation) are available on the university homepage.
•
Timetable
02.05.2015 (11h(11h-17h15) EW 148
22.05.2015 (17h30(17h30-20h30) EW 148
23.05.2015 (11h
11h-17h15) EW 148
30.05.2015 (11h(11h-17h15) EW 148
10.06.2015 (10h15(10h15-11
11h
h, exam only
only))
in L9, 11-2, room 001
Table of contents
02.+22.05. Introduction, overview, general part
23.05.
General part continued,
30.05.
Family, succession, contracts, torts, property
10.06. :
written examn : Please bring a printout of the legal texts
use of your notes is not permitted)
permitted)
,
Literature in English
Siehr, Kurt, Private International Law, in: Reimann, Mathias/Zekoll, Joachim (eds.),
Introduction to German Law, 2005, pp. 337-364 (!) available in UB Mannheim
(previous edition by W.F. Ebke and M.W. Finkin, eds., 1996, available in UB Mannheim)
Goode/Kronke/McKendrick/Wool, Transnational Commercial Law, 2nd Ed 2011.
Gerhard Robbers, An Introduction to German Law, 3rd ed., 2003
(contains 1 ch. on PIL) available in UB Mannheim
Manual of German Law, Vol 2: Commercial law, civil procedure, conflict of laws, bankruptcy,
law of nationality, East German family law - 1971. - XXIV, 329 p available in UB Mannheim
Rainer Gildeggen/Jochen Langkeit, The New Conflict of Laws Provisions of the Federal Republic
of Germany: Introductory Comment and Translation, 17 Ga.J.Int’l&Comp. L. 1986, 229.
Mathias Reimann, Codifying Torts Conflicts: The 1999 German Legislation in Comparative
Perspective, 60 La.L.Rev. 2000, 1297.
Ulrich Magnus/Peter Mankowski, The Green Paper on a Future Rome I Regulation – on the Road
to a Renewed European Private International Law of Contracts, ZVglRWiss 103 (2004) 131-189
Basedow/Kono (Ed.), An Economic Analysis of Private International Law, 2006
Franco Ferrari/Stefan Leible, Rome I Regulation: The Law Applicable to Contractual Obligations
in Europe, 2009.
Ulrich Magnus/Peter Mankowski, (Ed), European Commentaries on Private International law,
Sellier European Law Publishers, vol 1 thru 4 have been coming out successively starting July
2007 (Brussels I and II Regulations, Rome I and II Regulations)
Hess/Pfeiffer/Schlosser, The Brussels I Regulation 44/2001, 2008.
Murray/Stürner, German Civil Justice, Durham, N.C., 2004, Ch. 12 „German Civil Justice in
International Matters“, p 499-569
IPRax (German Journal on PIL) since 2009 has been providing English abstracts for each
article!!!
Journal of Private International Law (since 2005) www.conflictoflaws.net
MORE SEE:
* www.iuscomp.org/gla/literature/daad93/daad93-15.htm
* ucl.ac.uk/laws/global_law/ (translated German statutes and cases)
Notion
Statutory definition:
in Art. 3 IACC
Contrast: substantive law
Synonyms
Private international law / „Internationales
Privatrecht“/ Droit international privé
Conflict of laws / Kollisionsrecht
Choice of law
Heidi, Flavio, Leni, Seal,
Henry, Johan, Lou Sulola
– a PILPIL-case
In 1998, German Heidi got married to Ric from the US, whom she
divorced in 2003. In May 2004 Heidi had her first baby. It was
delivered in NYC, her name is Leni, her natural father Flavio from
Italy. In January 2005, Heidi got engaged to Seal from the UK in
Canada, who had been her boyfriend since before May 2004 and taken
care of her and Leni upon the birth. In May 2005, they got married in
Mexico to have their marital home in California. In Los Angeles, she
gave birth to Henry in September 2005, to Johan in 2006 and to Lou
Sulola in October 2009. Since February 2006, for business purposes,
the family has been living for part of the year in a hotel in Hamburg. In
2008 she obtained US citizenship.
What could be the questions?
What are the applicable
legal orders?
Several links to different states:
places, nationalities, ....
PIL = need to make a choice!
German Civil Code
§ 1591 Maternity
The mother of a child is the woman who gave birth to it.
§ 1592 Paternity
The father of a child is the man
1.who is married to the mother of the child at the date of the birth,
2.who has acknowledged paternity or
3.whose paternity has been judicially established under section 1600d or
section 182 (2) of the Act on the Procedure in Family Matters and in Matters
of Non-contentious Jurisdiction.
§ 1593 Paternity in the case of dissolution of the marriage by death
§ 1592 number 1 applies with the necessary modifications if the marriage has been dissolved by death and within
300 days after the dissolution a child is born. If it is certain that the child was conceived more than 300 days before
its birth, this period of time is conclusive. If a woman who has entered into a further marriage gives birth to a child
that would be both the child of the former husband under sentences 1 and 2 and the child of the new husband under
section 1592 number 1, it is to be regarded only as the child of the new husband. If the paternity is challenged and
if it is finally and non-appealably established that the new husband is not the father of the child, then it is the child
of the former husband.
§ 1594 Acknowledgement of paternity
(1) The legal effects of acknowledgement may, to the extent that statute does not provide otherwise, be asserted only
from the date on which the acknowledgement becomes effective.
(2) An acknowledgement of paternity is not effective as long as the paternity of another man is in effect.
(3) An acknowledgement subject to a condition or a stipulation as to time is ineffective.
(4) The acknowledgement is admissible even before the birth of the child.
§ 1595 Need for approbal of the acknowledgement
(1) The acknowledgement requires the approval of the mother.
(2) The acknowledgement also requires the approval of the child if the mother does not have parental custody in this
respect.
(3) The approval is governed by section 1594 (3) and (4) with the necessary modifications.
Attachment technique
of PIL rules
Spot the legal issue = „subject matter of
attachment“ (characterization)
Rule gives you a „point of attachment“ (or
„connecting factor“)
multilateral rule of collision (as opposed to
unilateral=„old fashioned“ rule of collision)
Point of attachment designates the applicable law
Private International Law
Art. 3 I 1 IACC
... as opposed to ...:
... International Civil Procedure ...
Private Interlocal Law
Private Intertemporal
Law
Public International
Law
EU Law
International Taxation
International Penal
Law
Uniform Law
Law of Foreigners
Is there a future for PIL?
Historical remarks
Romans: ius civile, ius gentium, tribal laws
Late middle ages: doctrine of statutes
„Savigny‘s Turn“: „Site“ of the legal relationship
2nd half of 19th century: national codifications
Since mid 20th century: giving up rigid rules (US:
„approaches“, EU: refinement of the rules, looking
for closest connection; uniform laws)
Proliferation of European legislation (ECJ case
law, Rome I, Rome II, Rome III)
Legal sources
IACC (main source)
Other autonomous provisions (e.g., insofar as they are not
derogated by Rome I, II: §§ 7 s. German Introductory Statute to the
Insurance Contract Statute; § 130 II Statute against Restraints of
Competition)
„case law“: autonomous and european
„http://curia.europa.eu/en/content/juris/c2.htm“
EU law
Treaties
Note the Hierarchy!
Art. 3
See tables: MünchKomm/Sonnenberger EinlIPR Rn 333, BaRoth/Lorenz Einl Rn 96
Structure of the IACC
- the principal legal instrument IACC: Second Chapter: PIL
First Section: Referral. Arts. 3-6
Second Section: Rights of natural persons
and legal transactions. Arts. 7-12
Third Section: Family law. Arts. 13-24,
partially preempted by Rome III
Fourth Section: Succession. Arts. 25, 26
Fifth Section: Obligations.
– First Subsection: Contractual obligations.
Arts. 27-37 deleted as of Dec 17, 2009 !!!
(and replaced by Rome I regulation)
– Second Subsection: Extra-contractual
obligations. Arts. 38-42 partially preempted
by Rome II
Sixth Section: Property. Arts. 43-46, 46
a,b,c
Third Chapter Adaptation
Art. 47 assimilation of first and family names
Art. 48 choice of name registered in a foreign c.
CC
BOOK ONE - GENERAL PART
§§ 1-240
BOOK TWO – LAW OF
OBLIGATIONS §§ 241-853
BOOK THREE – LAW OF
PROPERTY §§ 854-1296
BOOK FOUR – FAMILY LAW
§§ 1297-1921
BOOK FIVE – LAW OF
SUCCESSION §§ 1922-2385
Interests
behind the conflicts rules
The particular rules define the „closest
connection“ (~site of legal relationship) in
the light of
• Party interests
• Interests in ease of business
• Policy interests
„Rights of natural persons and
legal transactions“
transactions“
IACC Art 7 Legal capacity and competency to
enter legal transactions
IACC Art 9 Declaration of death (eventual Art 8)
IACC Art 10 Name (eventual Art 9 – in case of
enactment of: Planned new Art 10: Corporations)
IACC Art 11 Form of legal transactions
IACC Art 12 Protection of the other party
Legal capacity, Art. 7
•
•
Special capacities (-) Art 13, 15, 25, 40, 43. E.g.: § 1303 CC
Partial capacity (+) e.g. §§ 110 or 113 CC
§ 110 CC: A contract entered into by the minor without the
approval of the legal representative is deemed effective from
the beginning if the minor effects performance under the
contract with means that were given to him for this purpose or
for free disposal by the legal representative or by a third party
with the ratification of the representative
§ 113 I 1 CC: If the legal representative authorises the minor to
enter service or employment, the minor has unlimited capacity
to enter into transactions that relate to entering or leaving
service or employment of the permitted nature or performing
the duties arising from such a relationship.
§ 1303 CC: (1) A marriage should not be entered into before
the parties reach the age of majority.
(2) The family court, on application, may grant exemption
from this provision if the applicant has reached the age of
sixteen and his future spouse is of full age.
Example/1st case:
Conflict of name laws
A Dutch man named De Groot
gets married to a Turkish woman
named Özal.
She will be Mrs. De Groot.
A Dutch woman called de Groot
gets married to a Turkish man
named Özal.
Both will keep their names.
MORE: SEE SLIDE NEXT WEEK
NEW LAW: ART 47 (SINCE 2009)
Art. 153 turk. CC: wife takes husband‘s name.
NL BW: both keep their names.
How to approach a PIL case
Starting point:
Law of the forum
– Conflict rules: application mandatory!
Locate the conflict rules by spotting the issue (see next
slide)
Finding foreign law
§ 293 CCP: „The law which is in force in another
state, customary law and by-laws require proof only
to such extent as they are unknwon to the court. In
the establishment of these legal norms, the court is
not limited to the evidence brought forward by the
parties; it is empowered to make use of other sources
of knowledge and to order whatever is necessary for
the purpose of such utilization.
Translation by: Dannemann, Gerhard, Establishing Foreign Law in a German Court,
www.iuscomp.org/gla/literature/foreignlaw.htm
If foreign law cannot be found: 3 theories of what do do ….
Appeal to the German Federal
Court of Justice („
(„Revision
Revision““)
Amendment of § 545 para 1 gCCP as of 9/1/09:
the legislator has given up the formerly express restriction
to federal law (and state law of supra-regional importance)!
– thus (any applicable) „law“ can now undergo control by
the BGH
German court practice can thus be unified/harmonized as to
the interpretation of foreign law as well.
Simultaneously § 119 para 1 Nr.1 b, c GVG („statute on the
constitution of the judiciary“) have been deleted as of 9/1/09
See: Eichel, Die Revisibiltät ausländischen Rechts nach der Neufassung von § 545
Abs. 1 ZPO, IPRax 2009, 389 ss. (an English abstract is provided in the
introduction); Mäsch, Vom Gesetz, das schon bei seiner Geburt klüger ist als der
Gesetzgeber, NJW-Editorial Heft 40/2009; Hess/Hübner, Die Revisibilität
ausländischen Rechts nach der Neufassung des § 545 ZPO, NJW 2009, 3132 ss.
General Doctrines/General Part
Preemption of PIL
Referral I (total referral, renvoi, hidden renvoi, renvoi by
characterisation, substantive referral)
Referral II (attachment of preliminary question)
Total statute and single statute
Substitution, transposition
Referral III (law splitting)
Depeςage, Adaptation
Final check: ordre public
Particular points of attachment: nationality (legal term, no
result), habitual residence (legal term), location (legal term)
Preemption of PIL
Narrow preemption:
Internationally mandatory
provisions (overriding mandatory
provisions)
(lois d‘application immédiate)
Art 9 Rome I Regulation
(analogously)
Comprehensive overview of the present
discussion: Sonnenberger, Eingriffsrecht
– Das trojanische Pferd im IPR oder
notwendige Ergänzung?, IPRax 2003,
102-116
Wide preemption:
Uniform law
(loi uniforme), see e.g.
www.unidroit.org,
www.uncitral.org etc.
Preemptive effect of uniform law
Ex.: Law of contracts
I.
---I.
--I. (!) Substantive uniform law has
precedence ---
II. Only then:
Primarily:
– „Subjective“ attachment (Art. 3 Rome I: choice of law)
Subsidiarily:
– „Objective“ attachment (Art. 4 Rome I: ~ closest
relationship)
German Literature on CISG
Schlechtriem/Schroeter, Internationales UN-Kaufrecht - Ein
Studien- und Erläuterungsbuch, 5th Ed. 2013.
Schlechtriem/Schwenzer, Kommentar zum Einheitlichen UNKaufrecht : das Übereinkommen der Vereinten Nationen über
Verträge über den internationalen Warenkauf ; CISG, 6th Ed.,
München 2013 (1444 pages).
TRANSLATED INTO ENGLISH: Commentary on the UN
Convention on the International Sale of Goods (CISG),
Oxford University Press, 3rd Ed. 2010.
Witz/Salger/Lorenz, International Einheitliches Kaufrecht:
Praktiker-Kommentar und Vertragsgestaltung zum CISG,
Heidelberg 2015.
Also see in some of the big general private law commentaries,
e.g.:
– Bamberger/Roth/Saenger, BGB, in: Vol. 1, 3rd. Ed. 2012
– MünchKomm/Mankowski, HGB, in: Vol. 5, 3rd Ed. 2013
CISG
The CISG is the uniform international sales law of countries that
account for over three-quarters of all world trade.
http://www.cisg.law.pace.edu/ HIGHLY RECOMMENDABLE SITE!!!
Excellent material and commentary in English:
www.cisg--online.ch (Prof.Dr. Ingeborg Schwenzer)
www.cisg
Uniform Law I: CISG (BGBl 1989 II 586)
CISG: sale of goods
Parties that have their offices in
two different member states
(Art. 1 I a CISG)
Art. 6 CISG exclusion (-)
consequence: application of the
substantive rules of Art. 25 ss.
CISG
A fish merchant from
Paris delivers sea food
to a gourmet-restaurant
in Eltville (Hessen)
twice a week. What
rules will the LG
Wiesbaden apply when
the French merchant
gets sued because the
fish was bad?
„Autonomous application“ (1Ia) ./. „Conflicts application“ (1Ib)
... by the way ....Model
for the revision of the German law of
obligations, 1.1.2002
Vienna UN-Treaty on
the International Sale
of Goods 11.4.1980
(BGBl 1989 II 588)
= „UN sales law“
= „Vienna sales law“
= „CISG“
Uniform law II: CMR
(OLG Ffm VersR 1982, 697)
Compusoft GmbH hired Air Cargo
Europe (ACE) AG with its main office
in Ffm, to ship electronic elements from
Frankfurt to Paris by way of airfreight.
An airfreight document is being issued.
As there is not enough room in the
airplane, at the end of the day, the good
is being transported on the road (which
is allowed under IATA conditions).
When the elements are taken out of the
truck, it turns out that they are damaged.
Referral
(Art. 4 I and II IACC)
Principle: Total referral
(global remission) = either re-referral or renvoi
Exception: Substantive referral (details see next three
slides)
Example (Hay Nr. 85) : The French national Frank Rich
spends his late life in Germany. He leaves behind
personal and real property in the Provence, the
Thüringer Wald and Südtirol.
french PIL: Principle of total referral, split estate (lex
rei sitae, last domicile)
ital. PIL: Principle of total referral, the deceased
person‘s nationality
Predominant opinion.: Cut off after the first renvoi (possible explanation: 4 I 2
IACC analogously)!
Renvoi by characterisation
Case (Junker No. 206)
A German woman demands damages from her
former fiance, who is French, because he
broke the engagement. Place of the breach of
engagement was Germany.
Attachment of breach of engagement under German IACC
see BGH FamRZ 2005,1151 breach of Swiss-German
engagement
Case: BGH NJW 2007, 3347
name Art 10 IACC – Art 4 subart 1 IACC –
Art 13 turkish PIL rule of divorce
Partial renvoi by characterization: Austrian
owner of a house in Germany dies.
Hidden renvoi
Case: A couple from Wyoming living in Germany
want to get a divorce in Germany.
OLG Köln, IPRspr 2000 Nr. 17: Kelly Family case
Hay, Die Anwendung US-amerikanischer jurisdiction
Regeln als Verweisungsnorm bei Scheidung von in
Deutschland wohnhaften Amerikanern, IPRax 1988, 265
Yet, there is no hidden re-referral (ex.: they live in
France; disputed; best solution: referral would have
to be considered to be a substantive referral then)
Also possible: Partial renvoi
Exceptions
to the principle of
total referral
PIL in international conventions
Choice of laws
laws,, Art. 4 II
(Contracts
Contracts),
), Art 35 I, Art 20 Rome I Regulation
(„unless
unless““)
Art 24 Rome II Regulation
Other express substantive referrals such as Art 17 b
Whenever against purpose of attachment,
attachment, Art. 4 I1 i.f
i.f..
Referral back to German law (Art. 4 II)
Attachment of preliminary
questions Independently
Dependently
A Greek couple got married
in Germany with the
assistance of a Greek
orthodox priest, who had
not been duly empowered.
Right after the marriage
they moved back to Greece
where, many years later,
the husband dies. He still
has assets in Germany.
(BGHZ 43, 213)
A Spanish man gets
married to a German
woman in Germany at
the state registrar‘s
office only. They live
in Germany where
finally the husband
dies.
Exceptions
to independent attachment
of preliminary questions
PIL in international conventions
Nationality, name (controv.)
Whenever intl. harmony is preeminent
„Single statute precedes
general statute“
statute“
case (BayObLG NJW-RR
1990, 1033):
A German national with
his last residence in Aixen-Provence dies and
leaves personal as well as
real property in Munich
and in Aix. French PIL:
as to real property located
in France, French law is
applicable.
Preconditions of 3a II IACC:
Int‘l family law or law of
succession: assets of a person
Particular assets are not located
in the state the law of which
should be applicable under the
rules of int‘l fam. or succ. law
The place where these assets are
situated has special rules as to
these assets (be it conflict rules
or substantive rules)
„Alpine Caroussel“
Caroussel“ of referral
case: Swiss national with his last domicile in Italy
passes away. Bavarian Court has to decide.
1. German PIL: last nationality (total referral)
2. Swiss PIL: last domicile (total referral)
3. Ital. PIL: last nationality (total referral)
Predominant opinion: break off after for the first time hitting the same legal order again (similar to Art. 4 I 2 EGBGB)
Solution: Swiss law
!Beware!: Swiss specialty in Art 91 I Swiss PIL: this Art does not pronounce a total referral, but
expressly holds the „law applicable to which the PIL of the [last] domicile refers“ – see Sturm NJW
2010, 3416, 3417 i.f.; thus 4 I 2 IACC doesn‘t apply (this specialty was mistaken by LG NürnbergFürth 6.6.2006 docket no. 16 O 11789/03 and BayObLG IPRspr 2001 Nr 111)
For your orientation:
General Doctrines/General Part
Preemption of PIL (uniform law, loi d‘application immédiate)
Referral I (total referral, renvoi, hidden renvoi, renvoi by
characterisation, substantive referral)
Total statute and single statute
Referral II (attachment of preliminary question)
Substitution, transposition
Referral III (law splitting)
Depeςage, Adaptation
Final check: ordre public
Particular points of attachment: nationality (legal term, no
result), habitual residence (legal term), location (legal term)
Substitution
(~interpretation of factual preconditions of rules of
substantive law)
§ 925 CC Declaration of conveyance (1)
The agreement between the alienor and
the acquirer (declaration of conveyance)
necessary for the transfer of ownership of
a plot of land under section 873 must be
declared in the presence of both parties
before a competent agency. Any notary is
competent to receive the declaration of
conveyance, notwithstanding the
competence of other agencies. A
declaration of conveyance may also be
made in an in-court settlement or in an
insolvency plan that has been finally and
non-appealably confirmed.
§ 15 III GmbHG: In order to transfer shares
of a limited partnership the conclusion of
a contract in notarial form is necessary.
Recent decision: LG Frankfurt 7.10.09 3-13 O 46/09
Example: Certification
by a foreign notary
(§ 925 I CC ./.
§ 15 III GmbHG)
Not a preliminary
question in the above
sense
Not a transposition ...
Transposition: Example
French and Italian car
mortgage: car drives into
Germany
German equivalent would
be: transfer of ownership
by way of security
Referral under the principle of the most
favourable law (alternative attachments)
Greek man G gets married to French woman F in
Germany with the assistance of a Greek orthodox
Pope, that had been duly authorized by the Greek
government. Some years later F moves out to live
together with her German boyfriend D. A little while
later F gives birth to a child in Germany. In order to
have a quiet home for the baby to grow up, all adults
agree that it should move over to its grandmother who
Hay Nr. 207.
lives in Paris.
(vertiefend, krit.
Looschelders,
For the presumption of paternity, Art. 17 Greek CC
IPRax 1999,
refers to the statute governing the effects of marriage
420 und von Bar/
at the time of the birth of the child, it attaches the
Mankowski IPR Bd. 1,
effects of the marriage primarily to the common
2. Aufl., § 7 Rn. 206.)
nationality, otherwise to the common habitual
AG Karlsruhe FamRZ
residence.
2007, 1585 m Anm
Henrich IPRax 2008, Paternity? Custody?
549
Subattachment in cases of
split law (Art. 4 III IACC)
States with several
legal orders
Law split as to:
Territory
Religion
(e.g. BGH NJW-RR 2007, 145)
Peoples
(Historical) Case:
Descent of a child that is living with his
mother in the Yugoslav Republic A, as to a
man being a national of Yugoslav Republic B
and living there.
Yugoslavia had a nationwide PIL, and has a
nationwide Private Interlocal Law
Solution of that case would be somewhat
controversial:
After acceptance of the referral by the
Yugoslavian PIL Yugoslavian PInterlocalL
would have to be consulted (Ladder of
attachment: common residence, common
nationality of a Y. Republic, child‘s residence
or nationality)
Extension of the German rules of PIL: in casu
directly child‘s habitual residence
Split law / FamL
Mr. Caso from Argentina gets married to
the German Ms. Müller. They met at
Columbia University, where both of
them were law students in the LL.M.
program. They speak English to each
other. Mr. Caso stays in New York City
for another year to work with a big law
firm, Ms. Müller returns to Germany to
do her internships.
What law governs their marriage?
Solution: Law of NY, unless they made a
choice of law. (What could they have
chosen?)
„adaptation
adaptation“
“=„assimilation
assimilation“
“
Adaptation I: „Sweden case“
case“
(Soergel/Kegel vor Art. 3 Rn. 155)
Engl. spouses obtain the Swedish
nationality. Husband dies. What will
the widow get?
Engl matrimonial regime (15I,14INr.
1), Swed. Law of succession (25)
Classical example for adaptation
(kind: „deficit of rules“)
Inverse case: „accumulation of rules“
Two possible techniques of solution:
substantive dissolution orPILdissolution
Adaptation II:
„Deficit of rules“
rules“ in tort law
(OLG Kö
Köln FamRZ 1995, 1200)
§ 845 S. 1 CC: In the case of causing death,
or of causing injury..., if the injured party
was bound by law to perform service in
favor of a third party in his household or
business, the person bound to make
compensation shall compensate the third
party for the loss of sevice by th payment
of a money annuity.
§ 1619 CC: The child, as long as she/he
belongs to the parental household and is
brought up or supported by the parents, is
obliged to render service to the parents to
their household and business in a manner
proportionate to his strength and position in
life.
A 20 year old, living in Belgium is
being killed in a car accident in
Germany. His parents sue his Bresilian
counterpart‘s insurance. The Bresilian‘s
car was registered in the Netherlands.
The young man had been living with
his parents helping them on their farm.
Art. 40I1 German law.
845 CC: Bound to perform service
Art. 21 IACC: Belgian Law: no equivalent to §
1619 CC, but
but: Under Belgian torts law the parents
would have had a right to damages themselves
Only equitable solution: adaptation
Adapation III ?
Case: A lawfirm
operating in
Germany is
organised as an
English LLP
Yes: Henssler/Mansel NJW
2007, 1393; dies., FS Horn
2006, 415 ff.
No: Triebel/Siny NJW 2008,
1034; Schnittker/Bank, Die
LLP in der Praxis, 2008, p.
193 f
Attorney‘s professional liability?
Contractual partner is LLP only (27, 28, 29 IACC)
No culpa in contrahendo under German substantive law (§§
280 I, 241 II, 311 III 2 CC) (27, 28, 29 IACC)
No §§ 823 II CC, 263, 266 CrimCode; 826 CC (Art 41 II Nr.
1; 40 I, II 2 IACC)
Hypothetical under German Law: corporate liability, though no corporate shield available
Hypothetical under English law: tort liability (bec of attorney-client-relationship)
„leap into the dark“
dark“
Raape 1938
Ordre public
(very last check) only in case of emergency!!!
Special clauses of op
General Def. in Art. 6 IACC (esp. against fundamental
rights)
German-Iran Treaty of
+ intensity of overall connection to state of forum
Settlement and
Ultima ratio! : only in case of an unbearable result
Residence
Case (see OLG Köln FamRZ 1996, 1147)
Art. 8 (3): As to the law of
persons, family and
Spouses from Iran who have a right to asylum in
succession the nationals of
Germany live here. The husband says 3 x „talaq“. In
each of the Contracting
fact, both spouses want to terminate the marriage; yet
States will on the territory
they continue to live together in one appartment. Does a
of the other State remain
German court have to decree the divorce?
subject to the laws of their 8 III 1 German-Iran Treaty of Settlement and Residence,
country of citizenship.
(3 II vs 6 IACC)
Only in exceptional
Art. 6 IACC?: 3 II IACC?
circumstances can the
application of these laws First 8 III 2 of said Treaty (only op – see BGH FamRZ
be excluded or limited by
2005, 1666: 8 III 2 doesn‘t allow 17 III 2 IACC)
the other Contracting
Art. 6 I ACC, 1 I, 3 II, 6 GG, in view of the equities of
State, insofar as such an
the case!
exclusion is made
generally in view of any „Relativity“ of ordre public (as to place, as to time), e.g.
BGH NJW-RR 2007, 145 (lifelong marriage)
foreign state.
Procedural op: BGH NJW 2009, 3306 (paternity)
How to solve a PIL case
Starting point: Lex fori
This legal order‘s conflict rules!
Ex officio (not only on party‘s demand)!
In case of total referral: conflict rules of the lex causae
(in case of rereferral of the leges causae), preliminary
question(s)
Applicable substantive law
Preliminary question, substitution
Adaptation
Ordre public
(Determination of foreign law: § 293 ZPO)
For more details see: Bamberger/Roth/Lorenz, “check list” Einl. IPR IACC, Rn. 94.
Particular points of attachment
Nationality (almost 10 Location
% of German residents
– of tort
are foreigners)
– of workplace
– lex rei sitae
Art. 5 IACC
– of company
– Multiple nationality
– Surrogate attachment if no
nationality
– Convention on the
treatment of refugees!
Habitual or simple
residence (./. domicile)
headquarters
– ...
Surrogate attachment
Ambiguous point of attachment:
nationality/ e.g.name
*ECJ C-148/02 Garcia Avello, IPRax
2004, 339 annot.
Mörsdorf-Schulte
315
*ECJ C-353/06
Grunkin Paul NJW
2009, 135 annot
Funken FamRZ 2008, 2091
•OLG München
IPRax 2010, 452,
annot Wall 433
*ECJ C-208/09 Sayn Wittgenstein
(BayObLG StAZ 1999, 333)
Mrs. R is married to Mr. B, both are Germans. In
Tennessee she gives birth to a daughter. The
Metropolitan Health Dpt. issues a birth certificate
under the name B.-R. The parents apply at the
Registrar‘s of Births etc. of their German domicile
for registration of their child with that name.
According to BayObLG German law applies (Art.
10I, 5I2 IACC)
But: one could argue that 5I should not be
applicable, because 10 II and 10 III tell so for
analogous cases and party interests as well as
public interests militate in favor of a uniform
worldwide name of nationals with dual citizenship.
International harmony (no limping name) is even
more important within Europe
Explicit rule of transposition in the
IACC
Third Chapter. Assimilation.
Art. 47. First and Family Names.
(1) Where a person under an applicable foreign law has obtained a name and the name is henceforth
governed by German law, the person may, by a declaration given before the Registrar of Births,
Marriages and Deaths,
1.
determine a first and a family name from out of the name
2.
choose a first or a family name where such name does not exist
3.
give up components of the name that German law does not provide for
4.
adopt the original version of a name that has been modified according to the sex or the family
relationship
5.
accept a German version of his or her first or his or her family name; where such a version of his
or her first name does not exist, he or she can accept new first names.
Where the name is a marital name, only both spouses may give the declaration during the marriage.
(2) Subarticle 1 is applicable mutatis mutandis as to the formation of a name under German law, if it is
derived from a name which has been obtained under an applicable foreign law.
(3) § 1617 c of the Civil Code applies mutatis mutandis.
(4) The declarations made under Subarticles 1 and 2 need to be publicly authenticated or certified. The
declarations can also be publicly authenticated or certified by the Registrar of Births, Marriages
and Deaths. Fees and Expenses will not be collected. § 15e Subparagraph 2 of the Law on Civil
Status applies mutatis mutandis.
(rather transposition than adaptation)
Special part
Family law
Law of succession
Contracts
Torts
Property
European PIL
International Civil Procedure
International Family Law
BGBEG Art 13 Marriage (11% = German-foreign marriages in 2008)
BGBEG Art 14 General effects
BGBEG Art 15 Matrimonial regime
BGBEG Art 16 Protection of third parties
BGBEG Art 17 Divorce
BGBEG Art 17a Matrimonial Home and Household Items
BGBEG Art 17b Registered Life Partnership
BGBEG Art 18 Support
BGBEG Art 19 Descent
BGBEG Art 20 Challenging of descent
BGBEG Art 21 Effects of parent-child-relationship
BGBEG Art 22 Adoption
BGBEG Art 23 Consent
BGBEG Art 24 Guardianship, protective care, curatorship
Marriage ...
Art 13: Validity
Form vs. Substantive requirements
Gretna Green - marriages, Tondern marriages
Recent cases OVG Münster NJW 2007, 314,
annot. Mörsdorf-Schulte id 1331; VGH
Mannheim id 2506. Background:
www.expressheirat.de; www.heiraten-in-dk.de;
„Bilateral
Bilateral““ requirements
In case of marriage
e.g. polygamy: French woman getting
married to a married man from Morocco
In case of name
e.g. OLG Stuttgart, annot Henrich, IPRax
2007, 52
Distributive Attachment
Art 13 I: two national laws
not: cumulative attachment
example: minimum age requirement
Form requirements of
marriage in Germany
Art 13 subart. 3 IACC
Art. 13 subart. 3 sentence 2:
The country needs to have
actually implemented in due
course the possibility of
empowering a representative
+ registration in the foreign
register of marriages
case: A Greek couple got
married in 1963 in Mannheim at
Archimandrite A‘s office.
Form requirements of marriage
outside Germany
In Paris, a German got married to a Greek woman
by the duly empowered orthodox Minister.
(case from Kegel/Schurig § 17V3a)
Valid under Greek law (Art 13 I), but not under
German law (Art 13 I), and not under French law
(Art 11 I). They are not married!
Core provision of International Family Law:
IACC Art 14 General effects of marriage
(1) The general effects of the marriage are governed by:
1. the law of the state of common nationality of the spouses or last common nationality during
the marriage if one of them is still the citizen of that state; otherwise
2. the law of the state in which both spouses have their habitual residence or lastly had it
during the marriage, if one of them still has his habitual residence there; otherwise
3. the law of the state with which the spouses are jointly most closely connected.
connected
(2) lf one of the spouses has several nationalities, the spouses may choose the law
of one of these states, without regard to the provisions of art. 5 subarticle 1, if the
other spouse also has that nationality.
(3) The spouses may choose the law of a state where one spouse is a citizen if the
conditions of subarticle 1 no. 1 are not met and:
1. neither of the spouses is a citizen of the state in which both spouses have their habitual
residence; or
2. the spouses do not have their habitual residence in the same state.
The effects of choice of law end if the spouses acquire a common citizenship.
(4) The choice of law must bei notarially certified. If it is not performed within the
country, it is sufficient if the formality requirements of a marriage contract under the
law chosen or of the place of the choice of law are observed.
“KEGEL’
KEGEL’S LADDER”
LADDER”
Example Int‘
Int‘l Law of Marriage
Mr. Che from Korea gets married to
Ms. Müller from Germany. They
had met in Paris where they were
law students at the Sorbonne. They
speak French to each other. As Mr.
Che intends to stay in Paris for
another year to work with a big
French law firm, whereas Ms.
Müller has to go back to Germany to
finish her egal internships and pass
her second state examn, they don‘t
live together yet.
Validity of marriage?
Effects of marriage?
Variation: Ms. Che.
Extracts from the
Civil Code
BOOK FOUR
of August 15, 1896, updated version
FAMILY LAW
Section I: Civil Marriage
Title 5: Effects of Marriage in General §§ 1353-1362
Title 6 : Marital Property Rights
II Contractual Property Rights §§ 14081557
1 General Provisions §§ 1408-1413
§ 1412 Civil Code. Effect as against third
parties.
(1) If the spouses excluded or modified the
statutory matrimonial regime, they may not
invoke this to affect the validity of a legal
transaction made between one of them and a
third party unless the marriage contract was
registered in the Register of Marital Property
of the competent District Court or was known
to the third party at the time of carrying out
the transaction; contesting an enforceable
judgment given in a case between one of the
spouses and the third party, is permissible
only, if the marriage contract was registered
or known to the third party at the time the
action was pending.
(2) The same appplies if the spouses by
marriage contract eliminate or modify their
marital property arrangements registered in
the Register of Marital Porperty.
3. Community of Property §§ 1415-1557
§ 1357 Civil Code. Transactions for the provision of necessities.
(1) Each spouse is entitled to make transactions
for the appropriate provision of necessities of life
for the family with effect also for the other
spouse. Both spouses acquire rights and
obligations arising from such transactions, unless
circumstances indicate a different conclusion.
(2) A spouse may limit or exclude the right of the other spouse to
carry out transactions affecting him; if there is insufficient ground
for such limitation or exclusion, the Guardianship Court shall upon
petition, set it aside. The limitation or exclusion is effective aganst
third parties only in accordance with the provisions of § 1412.
(3) Subsection (1) is not applicable if the spouses live in
separation.
§ 1362 Civil Code. Presumptions as to ownership
(1) It shall be presumed in favor of the creditors of the husband
and of the creditors of the wife that chattels in possession ofeither
or both spouses belong to the debtor. The assumtion shall not
apply if the spouses live in separation and the chattels are in the
possession of the spouse who is not the debtor. Bearer securities
and securities payable to order and endorsed in blank are
considered equivalent to chattels.
(2) In respect of chattels inded for the exclusive personal use of
either spouse, it shall be presumed as between the spouses and in
relation to the creditors, that they belong to the spouse for whose
use they were intended.
Unilateral rule of conflicts/Family
conflicts/Family Law
Case built after the
case found in:
Junker, 110, 111.
A Family from England goes skiing in
Switzerland. On the day of their arrival, daughter
D‘s teeth start to hurt badly. Mother M has pity
and gets her a complicated surgery right away in
Switzerland. Father F doesn‘t want to pay the
bill, because he would have preferred to get the
surgery after their return to England, where
medical costs are lower and the insurance would
have paid anyway. Unlike Swiss law with Art
166 I OR, the English Matrimonial Proceedings
and Property Act 1970 doesn‘t have a provision
comparable to § 1357 CC. The Swiss Art 57
IPRG is an equivalent to Art 16 II IACC.
Does F have to pay?
Art 14. Art. 16 II IACC analogousy in connection
with Art 166 I OR, the analogy to Art 16 II being
possible only because Swiss conflict rules by Art
57 IPRG also protect its domestic traffic in a
similar way against foreign law that would
otherwise be applicable).
Matrimonial regime
Case: A German-Spanish woman and her
Italian husband have their common habitual
residence in Switzerland. Can they choose
spanish matrimonial regime?
(Case by von Hoffmann/Thorn § 8 Rn 40)
Problems of characterization:
„mahr“„sadaq“, „mehriye“ See BGHZ 183, 287; BeckOK/MörsdorfSchulte Art 15 EGBGB note 44, Art 13 note 36, Art 14 note 20, with
further references there.
Form (Art 11)./. Matrimonal regime (Art 15) See BGH NJW-RR
2011, 1225, annot Mörsdorf-Schulte LMK 2011, 322656
Divorce
Instructive: Andrae,
Anwendung des
islamischen Rechts im
Scheidungsverfahren
vor deutschen
Gerichten, NJW 2007,
1730-1733
case: Ms. French and Mr. German got
married in 1996 in Germany. There she
gave birth to a child. In 1998 they moved to
France where they got separated in 1999.
The husband returns to Germany with their
child. The wife stays in France.
Art. 17
Divorce in Germany
./. Divorce in a foreign country: (§ 107
FamFG: special procedure of recognition,
unless decision from the country of
common nationality or from a EUmember state)
Balancing of future pensions Art 17 III
(slightly amended in 2009) (BGH
20.12.2006; OLG Köln 7.11.2006)
EU regulation (Rome III) entered into
force in summer 2012 (enhanced
cooperation, Art 20 EU-Treaty)
Law concerning children
children:: CPC
Ex.: Disposition of custody along with divorce
Hague Convention on the ... Protection of Children
(1996 - CPC)
Minors (Art. 2)
Protective measures (e.g. § 1666 CC)
Competent agency applies its domestic law (Art. 15
Abs. 1 – basic rule)
Jurisdiction of the state of habitual residence (Art.
5)
See also: Hague Convention on the Abduction of
Children: preliminary measure designed to restore
status quo ante only! no ruling on custody yet!
Recommendation for
thourough study: Hay, case
Nr. 205
The custody question
in crossborder
kidnapping cases
IACC, Art. 21
Convention on the Civil Aspects of International Child Abduction (Hague Convention
1980) - see Siehr IPRax 2010, 583 on an Austrian OGH court ruling
CPC
Preemptive: European Divorce and Custody Directive (EC dir. No. 2201/2003) =
„Brussels-II-Regulation“ e.g. OLG Karlsruhe NJW 2009, 3521 (danger of being
exposed to female circumcision when visiting relatives in Ethiopia – § 1666 CC: Art 8
Bxl II); Hohloch IPRax 2010, 567 on an Austrian OGH court ruling
European Convention on Recognition and Enforcement of Decisions concerning
Custody of Children and on Restoration of Custody of Children (Luxemburg
Convention 1980)
Instructive case:
case ECJ C-195/08 PPU – Inga Rinau (available in English:
http://curia.europa.eu/en/content/juris/c2.htm) NJW 2008, 2973-77,
annot. Rieck 2958; Gruber IPRax 2009, 413)
Hcch.net
INTERNATIONAL PROTECTION OF CHILDREN, FAMILY AND PROPERTY
RELATIONS
[The figures in square brackets refer to the number of the relevant Convention]
International Protection of Children
Protection of Children (1996) - [34]
Child Abduction (1980) - [28]
Adoption - Co-operation (1993) - [33]
Recovery of Maintenance (2007) [38]
Protocol on Maintenance (2007) [39]
Maintenance Obligations (Applicable Law) (1973) - [24]
Maintenance Obligations (Enforcement) (1973) - [23]
Maintenance Obligations - Children (Applicable Law) (1956) - [08]
Maintenance Obligations - Children (Enforcement) (1958) - [09]
Protection of Minors (1961) - [10]
Adoption (1965) - [13]
International Protection of Adults
Protection of Adults (2000) - [35]
Adoption in the Samuel Family
Bild Zeitung
26.11.2009:
Seal wants to
adopt Leni
A Family from Morocco
(nach AG Ffm IPRax 1997, 264)
Widow W from Morocco in 1988 gets
married to her deceased husband‘s brother.
She has a child from her first husband. They
visit her parents in law who live in
Germany. With the mother‘s consent, the
grandparents declare „kafala“ (duty of
protection and assistance) as to their
grandchild. Then, the child, and later her
mother and uncle as well move to Germany.
After the breakdown of her marriage, W
asks a German court who has custody.
CPM (-) no protective measure
Art. 21 IACC: §§ 1626, 1680 CC
Kafala = Art. 21? 22? 24?
More about Kafala: Menhofer, IPRax 1996, 168, 169 f.; see also Jayme, IPRax 1999, 49 f.;
VG Berlin 16.3.2009 – 2 V 45.08: kafala by itself does not create family relationship
Support
Hague Convention on the International Recovery of Child Support of Nov 23,
2007
+ PROTOCOL ON THE LAW APPLICABLE TO MAINTENANCE OBLIGATIONS
50 signatory states!
Dec 18, 2008 Maintenance Regulation (Reg 4/2009) not applicable in Denmark
and UK - applicable since June18, 201
Lit.: G(ruber, Die neue EG-Unterhaltsverordnung, IPRax 2010, 128 ss)
Trick: as to PIL-question refers to the Hague Protocol:
Article 15 Maintenance Regulation:
Determination of the applicable law
„The law applicable to maintenance obligations shall be determined in accordance with the Hague
Protocol of 23 November 2007 on the law applicable to maintenance obligations (hereinafter referred to
as the 2007 Hague Protocol) in the Member States bound by that instrument.“
International law of succession
Art. 25 IACC Succession
Art. 26 IACC Dispositions mortis
causae (wills)
(1) Succession is governed
(1) A testamentary disposition, also when it is made by several persons in the same
by the law of the state of
document, is formally valid if it observes the form requirements:
law of the state of which the testator , without regard to art. 5 subarticle 1, was a
which the deceased was a 1. of thecitizen
at the time when he made the testamentary disposition or at the time of his
death;
citizen at the time of his 2. of the law of the place where the testator made the testamentary disposition;
3. of the law of the place where the testator had his domicile or habitual residence at the
death.
time he made the testamentary disposition or at the time of his death;
law of the place where real property is located to the extent that it is the subject
(2) The testator may 4. of thematter;
law which governs the succession or would govern at the time when the
choose in the form of a 5. of thedisposition
was made.
testator had a domicile in a certain place is governed by the law applicable at
testamentary disposition Whetherthattheplace.
German law concerning (2) Subarticle 1 is also applicable as to testamentary dispositions by which an earlier
testamentary disposition is revoked. The revocation is also formally valid if it is in
real
property
located
conformity with one of the legal system under which the revoked testamentary
disposition was valid under subarticle 1.
within the country.
(3) The rules which place restrictions an forms for testamentary dispositions with regard to
age, citizenship or other personal attributes of the testator shall be considered as
Op-case OLG
Oppertaining to matters of form. The same rule shall apply as to qualifications, which
Düsseldorf IPRax 2009, the witnesses required for the validity of the testamentary dispositions must possess.
(4) Subarticles 1 to 3 are applicable analogously to other dispositions mortis causae.
520, annot Looschelders
(5) Otherwise the validity of making of a disposition mortis causae and its binding force
ibid 505: German widow are governed by the law which would have been applicable to the succession at the
time the disposition was made. The capacity to make testamentary dispositions,
of Iranian decedent
once it has been acquired, shall not be adversely affected by the acquisition or loss
compete with his Iranian of legal status as a German.
siblings
German Civil Code
§ 2265 Joint will made by spouses
A joint will may be made only by spouses.
§ 2267 Joint holographic will
For the making of a joint will in accordance with section
2247 it suffices if one of the spouses makes a will in the
manner provided therein, and the other spouse co-signs the
joint declaration in his or her own hand. The co-signing
spouse should thereby state the time (day, month and year)
and the place at which his or her signature was affixed.
Spouses testament
(nach OLG Ffm IPRax 1986, 1)
Italian Spouses in Frankfurt
produce a „common testament“
according to § 2265 German
CC. – Validity?
Art. 589 Italian CC doesn‘t
allow a common testament.
Problem of characterisation:
Art. 26 V 1, 25; not a question
of form
Another classical problem of characterisation concerns § 1371
subart. 1 CC: Art 25 or Art 15?
As to this recently see Looschelders IPRax 2009, 505, 508 f.
„Certificate of inheritance
under foreign law“
law“ (§ 2369
CC)
Principle.: Doctrine of Parallelism of applicable
law and jurisdiction (./. CPM)
3 Exceptions; most important one: things that are
situated in Germany: a certficate limited as to
these items is being issued
If necessary: Transposition
„Limping
Limping““ legal status
in international law of persons, family,
Limping marriage
succession
Christians from Jordan get married in
Germany with the assistance of their priest, which is in accordance with
their domestic law.
A Thai couple living in Germany
concludes a written contract of
dissolution of marriage, which is
sufficient under Thai law.
Limping childhood
Limping name and „pseudo limping“
name (e.g. Henrich IPRax 2007, 52,
Turkish-German wedding case)
Limping sex (MüchKomm/Coester
2010 Art 13 EGBGB n 52
„Limping“ statutory portion ( Kegel)
After a prosperous life as a solicitor
in London the German national K
dies in London. She has made a
testament in favor of her best friend
L. Her daughter sues at a German
court against L to get her statutory
portion (which doesn‘t exist under
English law). The English rule of
conflicts for law of succession
attaches to the domicile of death of
the deceased person.
Big case for revision:
Succession/Split Law/Adaptation
Hay Nr. 74
1955 Marriage in Chicago, prosperous
fast-food-chain business
2000 M dies in Arizona, leaving money
Illinois: F inherits 1/3
Arizona: Half of the community property
as compensation of dissolution of
marital regime
What are Fs claims against their children
who live in Germany if she sues in a
competent German court?
Art. 25, Art. 4 III 2
PIL of Arizona: domicile: no sucession
Otherwise: Art. 15, 14 I Nr. 1, 4 III 2: PIL Illinois: spouses domicile at time of
acquisition applicable as to movables
Illinois: no community property
Result: deficit of rules, bec. none of the concerned legal orders would in ist
entirety yield that result
Adaptation: here by conflicts method: issue rather matrimonial regime
First Subsection
Law of obligations
Second Subsection
Contractual Obligations
Extra-contractual Obligations
Replaced by „Rome I“ Regulation
Mostly derogated by “Rome II” Regulation
IACC Art 27 Free Choice of Law
IACC Art 28 Applic. Law in the absence...
IACC Art 29 Consumer contracts
IACC Art 29a Consumer protection for
particular areas
IACC Art 30 Employment Contracts
IACC Art 31 Consent and substantive
validity
IACC Art 32 Scope of the law applicable to
the contract
IACC Art 33 Assignment of debt
IACC Art 34 Mandatory Provisions
IACC Art 35 Renvoi and Re-remittal,
splitting of law
IACC Art 36 Uniform Interpretation
IACC Art 37 Exceptions
IACC Art 38
Unjustified Enrichment
IACC Art 39
Management without mandate
IACC Art 40
Torts
IACC Art 41
Significantly closer connection
IACC Art 42
Choice of Law
European PIL
Directives
Regulations
Inplications of the basic freedoms (ECJ)
OLD: TREATY ESTABLISHING THE EUROPEAN COMMUNITY
(Consolidated version)
Article 65
Measures in the field of judicial cooperation in civil matters having cross-border implications, to
be taken in accordance with Article 67 and insofar as necessary for the proper functioning of the
internal market, shall include:
(a) improving and simplifying:
— the system for cross-border service of judicial and extrajudicial documents;
— cooperation in the taking of evidence;
— the recognition and enforcement of decisions in civil and commercial cases, including decisions
in extrajudicial cases;
(b) promoting the compatibility of the rules applicable in the Member States concerning the
conflict of laws and of jurisdiction;
(c) eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting
the compatibility of the rules on civil procedure applicable in the Member States.
CONSOLIDATED VERSION
OF
THE TREATY ON THE FUNCTIONING
OF THE EUROPEAN UNION
Article 81
(ex Article 65 TEC)
1.
The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the
principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the
adoption of measures for the approximation of the laws and regulations of the Member States.
2.
For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary
legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market,
aimed at ensuring:
(a)
the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial
cases;
(b)
the cross-border service of judicial and extrajudicial documents;
(c)
the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;
(d)
cooperation in the taking of evidence;
(e)
effective access to justice;
(f)
the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the
compatibility of the rules on civil procedure applicable in the Member States;
(g)
the development of alternative methods of dispute settlement;
(h)
support for the training of the judiciary and judicial staff.
3.
Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established
by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after
consulting the European Parliament.
The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with crossborder implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act
unanimously after consulting the European Parliament.
The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament
makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the
absence of opposition, the Council may adopt the decision.
Rome I and II Regulations
autonomous German law
has partly (Art 27-37) been discontinued in dec
2009!
is partly (Art 40-42) superceded in most cases
Franco Ferrari/Stefan Leible (Editors), Rome I
Regulation, 2009
./. Rome Convention
Presence and future of PIL of
obligations
Rome II – applicable as of july 11, 2009
Rome I – applicable as of dec 17, 2009 (Art 27-37 IACC
abolished)
EU without Denmark (UK & Ireland opted in)
Autonomous judge made law of agency and of
corporations will remain in force (see Art 1 subart
2 g), f) Rome I), but:
some changes in the law concerning corporations
(not yet codified) induced by the ECJ
Rome I: scope of application
As to space
– Art 2
As to subject matter
– Art 1
– Art 25: CISG
As to time
– Art 28, 29 subart 2.
PIL of contract
„Subjective attachment“:
Express choice – Art 27 IACC (Art 3
Rome I)
„Objective attachment“:
(hot topic: „war
war on advise“/“battle
advise
of legal
cultures“ contradicting recommendations on what
law to choose: Law Society of England and Wales./.
Bündnis für das deutsche Recht „Law Made in
Germany“, see e.g. Triebel bzw. Hochbaum NJW
2008 editorials in issues 9 and 51; Müller FAZ
13.9.2009) – for standard clauses see handouts!
Implied choice („demonstrated with
reasonable certainty“) („clearly
demonstrated“)
n.b.: Art 35 I, 4 II (Art 20 Rome I)
Easy Reading: Mallmann, Rechtswahlklauseln
unter Ausschluss des IPR, NJW 2008, 2953 ff
Presumptions – Art 28 ss. IACC (now
rigid rules: Art 4-8 Rome I)
Habitual residence of party performing the
characteristic duty (28 II) (4 II)
– 28 III (real property) (4 II)
– 28 IV (carriage of goods) (5)
– 29 II (consumer contracts) (6)
– 30 II (employment contracts) (8)
Clauses of escape (28 V etc) (4 III)
–
Closest Connection (4 II)
REMEMBER:
Preemptive effect of uniform law
I.
(!) Substantive uniform law takes precedence
II.
....Check Art. 37 IACC/1
IACC/1 Rome I ...
III. Only then:
Primarily:
– „Subjective“ attachment (Art. 27 IACC/Art 3 Rome I:
choice of law)
Subsidiarily:
– „Objective“ attachment (Art. 28 IACC/Art 4 Rome I:
closest relationship)
Partial attachment to different laws possible (27 I 3, 28 I 2).
Remember: Preemption of PIL
Narrow preemption:
Wide preemption:
Internationally mandatory provisions
(overriding mandatory provisions)
(lois d‘application immédiate)
Art. 34 IACC (analogously)
(see ~ Art 9 Rome I Regulation
DEFINITION)
Comprehensive overview of the present discussion:
Sonnenberger, Eingriffsrecht – Das trojanische
Pferd im IPR oder notwendige Ergänzung?,
IPRax 2003, 102-116
Uniform law
(loi uniforme), see e.g.
www.unidroit.org,
www.uncitral.org etc.
overriding mandatory rules:
rules:
internationally ./. internally
„mandatory rules“ (Art. 34
IACC/Art 9 Rome I)(= „lois de
police“)
General rule: Art. 27 I 1 IACC/Art 3 I:
„A contract is governed by the law
chosen by the parties.“
Limitation: Art. 27 III IACC/Art 3 III:
„If the other factual circumstances are, at
the time of choosing the law, connected
only with one state, then the choice of
the law of another state – also when by
virtue of the agreement supplementary
provision is made for the jurisdiction of
the court of another state – may not
affect the provisions which may not be
disposed of by contract under the law of
that state (mandatory provisions).“
Art 3 III: „provisions which cannot be
derogated from“
mandatory rule – example
xample
Ms H is a sales representative for a
Namibian enterprise in Germany . Her
contract provides for a choice of
Namibian law. Under Namibian law
there is no compulsary claim of
compensation for sales representatives
upon termination of their contract.
Art 27 I IACC/Art 3 Rome I (+)
Art 30 I, II IACC /Art 8 Rome I § 89 b
CCom (-) independent contractor
Art 34 IACC/Art 9 Rome I, § 89 b
CCom (?)
See Bälz, Der Ausschluss des Ausgleichsanspruchs
in internationalen Handelsvertreterverträgen,
NJW 2003, 1559 ff.; Hoffmann/Primaczenko
Die kollisionsrechtliche Absicherung des Verbraucherschutzes in Europa, IPRax 2007, 173 ff.
See ECJ 9.11.2000
C 381/98 – Ingmar
http://www.curia.eu.int/
en/content/juris/c2.htm
„Subjective Statute of Contract“
Contract“
free choice of law ...
yet with some limits
General limits:
Art. 27 III/ Art 3 III Rome I
Special limits:
Art. 29 / Art 6 Rome I
Art. 30 I / Art 8 Rome I
Art. 29 a
n.b. Art 34 / 9 Rome I
Consumer contracts
- important case!!!
case!!! Common in the 1986-1992: sale
of blankets among Germans in
Gran Canaria. Delivery in
Germany. Choice of Spanish
law.
Modern cases: turkish beaches.
NOTE: Some courts have tried
to help the German consumer
by applying Art 34 IACC/now
Art 9 Rome I (controversial
issue whether consumer
protection laws can be qualified
as loi d‘application immédiate!)
Old dispute: Does Art 29 IACC apply to C2C- contracts? (arg: text ./.
rationale (no structural imbalance)) – SOLVED BY ART 6 ROME I
Note: former Art 29a IACC was moved to the end of the act to be
Art. 46 b I ACC now.
Law of Corporations I
(OLG Frankfurt a.M. IPRax 1991, 403)
Traditional rule
A corporation validly founded under
the law of Panama has its
headquarters in Geneva and does
business with firms from other
European countries. Some German
clients don‘t pay their debts. The corp.
sues in a German court. Has the corp.
standing?
Unlike Germany, Switzerland adheres
to the theory of incorporation and only
makes a substantive referral.
German court has to apply the
substantive rules of Panama: Legal
capacity and standing (+)
Art 49 II TFEU
„Freedom of establishment shall include the right
to take up and pursue activities as self employed
persons and to set up and manage undertakings, in
particular companies or firms within the meaning
of the second paragraph of Article 54, under the
conditions laid down for its own nationals by the
law of the country where such establishment is
effected, subject to the provisions of the Chapter
relating to capital.“
./. ex art 293 ECT: „Member States shall, so far as is necessary, enter into negotiations with
each other with a view to securing for the benefit of their nationals: ….
— the mutual recognition of companies or firms within the meaning of the second paragraph
of Article 48, the retention of legal personality in the event of transfer of their seat from
one country to another, and the possibility of mergers between companies or firms
governed by the laws of different countries,
…
Law of Corporations II
Ongoing erosion of the rule of head office?
... for reason of freedom of establishment
EU:
Daily Mail C-81/87
Centros C -212/97
Überseering C-208/00
Inspire Art C-167/01
Cartesio C -210/06
Not only as to existence, but also as to internal structure/liability of directors ( German Supreme Court
BGH NJW 2005, 1648 )
Extension of this rule to US by German Supreme Court (BGH IPRax 2003, 265 = BGHZ 153, 353)
Yet requirement of minimum contacts: genuine link, BGH IPRax 2005, 340; JZ 05, 298
Extension to other friendship treaties as well?
Extension to European Economic Area, e.g. Liechtenstein: German Supreme Court BGH NJW 2005,
3351 (Art 31 EEA)
Limits:
BGH NJW 2009, 289 concerning Switzerland (vs. OLG Hamm BB 2006, 2487, criticism by Heldrich)
OLG Hamburg BB 2007, 1519 concerning Ltd from the Isle of Man
… in order to come under Art 49, 54 TFEU, corp needs to pursue economic gain (OLG Zweibrücken
NZG 2005, 1019)
Law of Corporations III - case
BGHZ 153, 353; BGH JuS 2005, 653 (aff. OLG München GRUR-RR
2008, 400)
Case: Plaintiff corp. incorporated under the law of
Florida (US) that had its headquarters in Germany,
was a shareholder of R-GmbH. In 1995 it sold its
share for 50.000 DM to the defendant and also
transferred the share. Defendant didn‘t pay.
Standing to sue in Germany?
Controversial issue („Is Art XXV subart. 5 s. 2 of the Treaty
meant to be a conflict rule?“) decided affirmatively by the
Federal Supreme Court (BGH), applying Art. 3 subart. 2 S. 1
Treaty of Friendship,
IACC.
Commerce and
Arguments of the BGH: Semantics of Art XXV, Preambula
Navigation US-Germany,
Oct 29, 1954, 7. U.S.T. (principles of national and unconditional most-favored-nation
treatment) both principles referred to in Art. V (5), VI (1) , VII
1839 – 3 II IACC.
(1), IX (4): more than mere equal treatment once they exist
Annotation to the BGH- Essence: Freedom of establishment is granted and this implies
decision by Paefgen, DAJV- „theory of incorporation“ (cf. ECJ NJW 2002, 3614)
NL 3/2003, 98.
Law of Corporations IV:
planned statutory rule
New Art 10, 10a, 10b IACC were planned to enter
into force in 2009 – yet so far nothing has been
enacted
Moreover supplements to Art 12 will probably be
introduced and Art 11 will get a supplementary
paragraph
On the basis of preparatory work of the
Kommission „Internationale Law of Corporations“
of the German Council for Private International
Law, vgl. Sonnenberger, Vorschläge und Berichte
zur Reform des europäischen und deutschen
internationalen Gesellschaftsrechts, 2007;
Sonnenberger/Bauer, RIW Beilage 1 zu Heft
4/2006
See Leuering, ZRP 2008, 73, very good reading!!
„The Moulin-Rouge
attractions limited“
Draft by the Ministry of Justice
(as of Jan 2008)
„…Artikel 10
Gesellschaften, Vereine und juristische Personen
(1) Gesellschaften, Vereine und juristische Personen des Privatrechts unterliegen dem Recht
des Staates, in dem sie in ein öffentliches Register eingetragen sind. Sind sie nicht oder
noch nicht in ein öffentliches Register eingetragen, unterliegen sie dem Recht des Staates,
nach dem sie organisiert sind.
(2) Das nach Absatz 1 anzuwendende Recht ist insbesondere maßgebend für
1. die Rechtsnatur und die Rechts- und Handlungsfähigkeit,
2. die Gründung und die Auflösung,
3. den Namen und die Firma,
4. die Organisations- sowie die Finanzverfassung,
5. die Vertretungsmacht der Organe,
6. den Erwerb und den Verlust der Mitgliedschaft und die mit dieser verbundenen
Rechte und Pflichten,
7. die Haftung der Gesellschaft, des Vereins oder der juristischen Person sowie die
Haftung ihrer Mitglieder und Organmitglieder für Verbindlichkeiten der
Gesellschaft, des Vereins oder der juristischen Person,
8. die Haftung wegen der Verletzung gesellschaftsrechtlicher Pflichten.
…
Dem Artikel 11 wird folgender Absatz 6 angefügt:
„ (6) Ein Rechtsgeschäft, das die Verfassung einer Gesellschaft, eines Vereins
oder einer juristischen Person betrifft, ist nur formgültig, wenn es die
Formerfordernisse des nach Artikel 10 anzuwendenden Rechts er füllt.“
R. Wagner/B. Timm, Der Referentenentwurf eines Gesetzes zum Internationalen Privatrecht der
Gesellschaften, Vereine und juristischen Personen, IPRax 2008, 81
Torts
and other
non--contractual obligations
non
Rome II, see Art. 3 Nr. 1 a IACC
Scope of application: e.g. violations of
privacy and rights relating to personality
excluded, Art. 1 Subart. 2 (g)
Art. 40 ss IACC
The PIL of torts
and other extracontractual obligations
Rome II regulation:
loi uniforme
- Place of (direct) damages
- Prevalence of common habitual residence
- Clause of exception
- Substantive referral!
Special rules for certain types of torts
Art. 23 Subart. 2: Room for attachment to country of origin where this is
prescribed in special rules such as might (in one contested view) be
the case under the e-commerce directive
Torts I
Accessorial attachent, e.g.
transport, employment.
C lives in Germany with her
mother. She is visiting her father
who lives in France. They have a
car accident on a trip they make.
C is badly hurt.
(von Hoffmann § 11 No. 41)
Discuss: place of accident, common
habitual residence
Solution: Art. 4 III 2 Rome II, Art
21 IACC: German law
Torts II: Plurality of place of tort:
The crash into the Potomac
(Kegel/Schurig p. 1 inspired by Eastern Air Lines v. Union Trust Co. 221 F.2d 62 [1955])
Collision of airplanes in
Virginia, tower in Virginia,
parts of the wreck are in the
river, parts on both sides of the
river banks – Va. Law
provides for damages cap
Management without mandate/
negotiorum gestio:
The ship detective
(nach OLG Dü
Düsseldorf RIW 1984, 481)
G is German and lives in Germany.
G‘s business is to find sports vessels
that have been stolen and to give them
back to their owner. In Barcelona he
accidentally finds D‘s yacht though he
was working on a mandate for
somebody else. D is also living in
Germany.
Is G entitled to reimbursement of
expenses?
Unjust Enrichment I
(Hay PdW Nr. 128)
A French couple is going for a walk
in a nice German forrest enjoying
the colouring leaves. A dog
damages the husband‘s pants and
the wife‘s handbag. The owner of
dog D who was roaming around in
the woods at that time is
embarrassed and pays immediately.
Later it turns out that it was another
dog.
Can D‘s owner get his money back?
Unjust Enrichment II
(BGH NJW 1987, 185, modified)
German Sales
representative Mayer works
for the Italian enterprise I.
He was entitled to a share
of 500 €. I told its bank to
pay 500 €, but the bank
accidentally payed 500 €
from I‘s account to one
Meyer. Does I have claims
against Meyer?
Int‘‘l Law of Property
Int
Provision: Art. 43 IACC
Case:
BGH NJW 2009, 2824
§ 366 German Commercial Code:
The travelling carpet
Section 937 gCC
Requirements, exclusion in the
case of knowledge
(1) A person who has a movable
thing in his proprietary
possession for ten years acquires
the ownership (acquisition by
prescription).
(2) Acquisition by prescription is
excluded if the acquirer on
acquiring the proprietary
possession is not in good faith or
if he later discovers that he is not
entitled to the ownership.
In 2000, tourist guide returned
home to Mannheim from her
appointment to Tunesia. With
her she brought a beautiful and
precious carpet that she had
bought in 1992 in Tunis on a
bazaar. She didn‘t know that the
carpet had been stolen from O.
O files action at a German court
to get the carpet back.
Art. 43 III IACC, § 937 (1) CC
The sale of the knitting
machine (BGHZ 45, 95)
Italian enterprise sells knitting machine to a
German customer. Parties agree on a
reservation of ownership. Under italian law
this has only relative effect. The machine is
delivered being shipped through Switzerland.
Who‘s the owner, if creditors want to take the
machine?
As a general rule: first: country of origin, then:
country of destination, but not an intermediary
country
BGH: parties wanted transfer of ownership by
way of security, § 930 CC, this becomes valid
as soon as buyer got into possession
Nowadays: 43 III or 46 IACC (controversial
issue)
Res in transitu
(fortuitous place as to the transfer of ownershipa t the
time of the transfer)
While a shipment of
wheat is on its way
from NY to Rotterdam
it is being sold at the
London exchange.
What law governs the
transfer of property?
46 IACC
Place of destination =
NL
Resumee „in a nutshell“
nutshell“
contracts
Rome I
Free Choice of Law
Otherwise: closest
connection
torts
Rome II/ Art. 40 ff. IACC
Subsequent Choice of
law
Common habitual
residence
Otherwise: place of
tort (action)
Clause of exception
Art 4 III, 5III, 8IV Clause of exception Art. 41 IACC
Rome I
Art 4 III, 5 II Rome II
property
Art. 43 ff. IACC
Country of origin as to
means of transport
Otherwise: (lex rei sitae
Clause of exception
Art. 46 IACC