domingo, 16 de enero de 2011

Bibliografía (Revista de revistas) - RabelsZ 1/2011

Última entrega de la Rabels Zeitschrift für ausländisches und internationales Privatrecht (RabelsZ): vol. 75 (2011), núm. 1:

-Rainer Nicolaysen: Albrecht Mendelssohn Bartholdy (1874-1936), Jurist - Friedensforscher - Künstler, pp. 1-31(31)
Abstract: Albrecht Mendelssohn Bartholdy, great-great-grandson of the Enlightenment philosopher Moses Mendelssohn, and grandson of the composer Felix Mendelssohn Bartholdy, was a renowned professor of international and foreign law, a peace researcher and an artist. After he had studied law at the Universities of Leipzig, Heidelberg and Munich, he became a member of the faculty at the University of Leipzig and in 1905 assumed a full professorship at the University of Würzburg in the fields of civil law and civil procedure law (as of 1917, also in the area of international law, especially English law). Mendelssohn Bartholdy was regarded as the most accomplished expert in Anglo-Saxon law within Germany. From 1912 he was a member of a committee for a better understanding between Germany and England, and after World War I he tirelessly sought for a reconciliation of the two nations' peoples.
In 1920 he relocated to the University of Hamburg, founded just earlier in 1919. Mendelssohn Bartholdy became professor of foreign law and, in 1923, director of the Institute for Foreign Policy". This famous "Mendelssohn Institute" was one of the first research institutes for peace studies in the world, the first research institute for political science in Germany and - like its founder - a representative of the democratic Weimar Republic. Mendelssohn Bartholdy was a member of the German peace delegation at Versailles 1919, a member of the Hague court of arbitration for resolving differences of interpretation in the Dawes-Plan and Young-Plan (starting in 1925), and a member of the German delegation to the League of Nations in Geneva (starting in 1931).
After his first lecture tour in the United States in 1926 he founded a special library for American law, a society for friends of the United States in Hamburg and the bilingual journal "Hamburg-Amerika-Post" which carried the English subtitle "A messenger of good will between the United States and Germany". In 1927 he received an honorary LL. D. from Harvard University, and in 1929 one from the University of Chicago as well. After the National Socialists came to power in Germany in 1933, Mendelssohn Bartholdy lost almost everything within a few months. As a "non-Aryan" and a democrat he was dismissed from the University of Hamburg and was forced to resign from the directorship of his own institute. In 1934 he emigrated to England, where he was elected senior research fellow of Balliol College. He died in Oxford in November 1936 at the age 62.
This essay is the first step towards a biography on Albrecht Mendelssohn Bartholdy, which will describe the life of an outstanding liberal and attempt to rediscover his impressive academic achievements
-Jürgen Basedow: Theory of Choice of Law - Theorie der Rechtswahl oder Parteiautonomie als Grundlage des Internationalen Privatrechts, pp. 32-59(28)
Abstract: Party autonomy is acknowledged in an increasing number of areas of the law by positive conflict of laws legislation across the globe. However, its theoretical foundations are unclear and have even been neglected for decades: The practical benefits arising from party autonomy were considered to be sufficient. But legislation rejecting party autonomy like that in some Latin-American or Middle-Eastern countries is difficult to counter on that basis. The article therefore explores the theoretical counter arguments against party autonomy rooted in a sovereignty-based conception of the law prevailing since the Hegelian philosophy which is reflected by contemporary political conceptions of the law as a countervailing measure against a social disequilibrium. Drawing from the philosophy of the Enlightenment the author develops a two-pronged theory of the free choice of law whose core is part of the natural rights of the individual in a multi-jurisdictional world, but whose corona consisting of multifarious limitations has to be established and ordered by the positive conflict rules of the various jurisdictions. This theory would apply, not only to contracts, but also to other areas of the law such as family law or the law of succession, intellectual property or tort law where the positive restrictions of the free choice of law may, however, be more numerous and detailed than in the field of contracts.
-Felix Maultzsch: Choice of Law and ius cogens in Conflict of Laws for Contractual Obligations - Rechtswahl und ius cogens im Internationalen Schuldvertragsrecht, pp. 60-101(42)
Abstract: 1. Choice of law is a key principle of the Rome I Regulation concerning the conflict of laws for contractual obligations. However, the impact of a choice of law is limited by several rules which provide for a parallel application of ius cogens. This solution is based on the idea of a proportional balancing between the interest of the parties in a choice of law and other conflict of laws principles.
2. Article 3(3) Rome I Regulation allows for a choice of law in purely domestic contracts, but limits the effects of such a choice by the parallel application of the domestic ius cogens. However, it would be more convincing to preclude a choice of law in these cases and to limit the parties to an incorporation of foreign law as terms of the contract.
3. With regard to consumer contracts in the meaning of Art. 6(1) Rome I Regulation, it would also have been more persuasive to preclude a choice of law. This would not have amounted to a grave interference with international competition. Furthermore, it would have brought forward clarity and homogeneity in conflict of laws.
4. The concept of overriding mandatory provisions (Art. 9(1) Rome I Regulation) should be confined to genuine public policy provisions which are primarily enforced by public authorities. In contrast, the increasing incorporation of mandatory contract law in the concept of overriding mandatory provisions threatens the effectiveness of a choice of law and may cause an inhomogeneous cumulation of applicable rules.
5. According to Art. 9(2) Rome I Regulation, overriding mandatory provisions of the law of the forum are to be applied without a close-mesh filter on a conflict of laws level. However, the application of these provisions may be restricted by the fundamental freedoms of EU law.
6. Overriding mandatory provisions of a chosen law are not to be applied according to Art. 3(1) Rome I Regulation, but only according to Art. 9(2) and (3) Rome I Regulation. Thus, the concept of applicable law (Arts. 3 to 8 Rome I Regulation) and the concept of overriding mandatory provisions (Art. 9 Rome I Regulation) are mutually exclusive.
7. Foreign overriding mandatory provisions may only be given effect under the requirements of Art. 9(3) Rome I Regulation or by an analogical application of this provision. However, the means of an analogy should only be used with caution.
-Markus Würdinger: The Principle of Unity in the European Private International Law and Procedural Law Governing Contractual and Non-Contractual Obligations, A Methodological Examination of the Practical Concordance between the Brussels I, Rome I and Rome II Regulations - Das Prinzip der Einheit der Schuldrechtsverordnungen im Europäischen Internationalen Privat- und Verfahrensrecht, Eine methodologische Untersuchung über die praktische Konkordanz zwischen Brüssel I-VO, Rom I-VO und Rom II-VO, pp. 102-126(25)
Abstract: The following conclusions can be drawn about European private international law and procedural law:
1. The two crucial questions of every trial having an international dimension - the question of international jurisdiction and that of the applicable law - are to be separated (principle of separation in European private international law and procedural law).
In principle, in European private and procedural law, there is no automatic correlation between forum and ius.
2. The regulatory purpose of the Brussels I Regulation differs from that of its sister regulations on the conflict of laws, Rome I and Rome II. European procedural law, at its source, seeks to protect the defendant, and therefore the place of general jurisdiction follows the Roman law principle of actor sequitur forum rei. By contrast, private international law, by use of the principle of the closest connection, aims to apply the law which is most closely related to the relevant subject matter. This difference consequently leads to conceptual differences between the Brussels I Regulation on the one hand and the Rome I and Rome II Regulations on the other (e.g. several venues and one legal system).
3. The question of synchronization with respect to Brussels I, Rome I and Rome II needs to be resolved on the level of interpretation. With respect to the predecessors of these regulations, the European Court of Justice had similarly resorted to an interpretation correlation.
Besides the autonomous interpretation of the respective regulation on the vertical interpretation axis, the concordance imperatives of the recitals in the Rome I and Rome II Regulation have to be considered (on the horizontal interpretation axis). These must be taken into account in the course of a purposive interpretation, and they argue against relativity of the respective legal terms and for a consistent interpretation beyond the limits of each regulation.
The general concordance imperatives in recitals no. 7 of the Rome I and Rome II Regulations need to be distinguished from the special concordance imperatives (see recital 17 phrase 1 of the Rome I Regulation and recital 24 phrase 2 of the Rome I Regulation). Between the Regulations there is an interpretation correlation; all three instruments of European private international law and procedural law must be seen and interpreted as a single mutually connected entity (coherence of interpretation). This is a question of practical concordance.
4. Whoever deviates from a synchronized interpretation and endorses a relativity of the legal terms carries the burden of argumentation and has to give purposive reasons for this opinion. Otherwise, the principle of the unity of the Regulations applies.

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