Última entrega de la Rabels Zeitschrift für ausländisches und internationales Privatrecht (RabelsZ): vol. 74 (2010), núm. 3:
Gralf-Peter Calliess, Jens Mertens: Private Law and Competition Policy in the Gobal Economy, pp. 463-492Comment:Abstract: The fundamental nexus of private law and competition policy is mundane: Economic competition requires a functional market, which in turn requires effective institutions for the enforcement of contracts. The economic constitution in an ordo-liberal sense, therefore, consists not only of a regulatory part, which aims at protecting competition against state restrictions (fundamental freedoms) and private limitations (antitrust law) alike; it also entails a facilitative part, which aims at protecting individuals against opportunistic behavior of their transaction partners (private rights and remedies). In this paper we criticize the so-called “more economic approach” to European competition law for disregarding the importance of a functional system of private law. Based on the availability of market governance as an alternative mode for organizing transactions, this approach presumes that vertical integration is economically efficient. Since the enforcement of cross-border contracts by state-organized systems of private law, however, is insufficient, “make or buy”-decisions in international commerce are prejudiced against “arms' length” transactions on markets. Consequently international transactions are integrated vertically into firm-structures to a higher degree than comparable domestic transactions organized in the shadow of domestic private law. The resulting over-integration of world markets leads to reduced competitive incentives and high bureaucratic costs. Contrary to the fundamental assumptions of the “more economic approach”, vertical integration does, therefore, not per se foster consumer welfare in the global economy. However, as this over-integration is a reasonable reaction to the deficits in state protection of cross-border contracts, it cannot be countered by a strict world antitrust law without suppressing cross-border exchange. Thus, international private law policy establishing legal certainty in the enforcement of cross-border contracts currently seems to be the instrument of choice in promoting competition in the global economy.Eugenia Kurzynsky-Singer: Recognition of Foreign Judgments by Russian Courts, pp. 493-521(29)Abstract: Russian law is continuing to show a sceptical approach towards the recognition of foreign judgments. The present provisions still require an international treaty as a condition for recognition and enforcement. In recent times, however, Russian and German legal scholarship has extensively discussed the question whether in the absence of a relevant international treaty, Russian law would still allow for the recognition and enforcement of a foreign judgment. The circumstances which gave rise to this discussion were a number of judgments rendered by Russian courts in the years from 2002 to 2005 in which the recognition of foreign judgments was granted on the basis of the principle of reciprocity.
A further unsolved problem relates to the question whether the Partnership Agreement, concluded between the European Union and the Russian Federation constitutes a required international treaty for purposes of recognition and enforcement even though the agreement does not expressly include any provisions regarding recognition or enforcement. In recent judgments several Russian courts have given a positive answer to this question.
In the course of the further development of the provisions concerning the recognition of foreign judgments, Russian law faces the seldom noticed problem that its law of civil procedure grants court decisions extensive objective and subjective legal effect.
Max Planck Institute for Comparative and International Private Law, pp. 522-720Mitarbeiter dieses Heftes