Bibliografía (Publicaciones periódicas) - RabelsZ (2009) 1

Último número de la Rabels Zeitschrift für ausländisches und internationales Privatrecht (RabelsZ), número 1 del año 2009 (vol. 73):

Aufsätze:

-Thomas Kadner Graziano, The Law Applicable to Non-Contractual Obligations (Rome II Regulation) - Das auf außervertragliche Schuldverhältnisse anzuwendende Recht nach Inkrafttreten der Rom II-Verordnung (pp. 1-77)

Abstract: As of 11 January 2009, Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) will be applicable in twenty-six European Union Member States. The Rome II Regulation applies to events giving rise to damage which occur after its entry into force on 19 August 2007 in proceedings commenced after 11 January 2009. This Regulation provides conflict of law rules for tort and delict, unjust enrichment and restitution, negotiorum gestio and culpa in contrahendo. It has a wide scope covering almost all issues raised in cases of extra-contractual liability.
The majority of the rules in the Rome II Regulation are inspired by existing rules from European countries. Others are pioneering, innovative new rules. Compared to many of the national systems of private international law of non-contractual obligations, Rome II will bring significant changes and several new solutions. The Rome II Regulation introduces precise, modern and well-targeted rules on the applicable law that are well adapted to the needs of European actors. It provides, in particular, specific rules governing a certain number of specific torts (e.g. product liability, unfair competition and acts restricting free competition, environmental damage, infringement of intellectual property rights, and industrial action). The provisions of the Regulation will considerably increase legal certainty on the European scale, while at the same time giving courts the freedom necessary to deal with new or exceptional situations.
This contribution presents the rules designating the applicable law set out in the Rome II Regulation. The raisons d'êtres behind these rules are explored and ways in which to interpret the Regulation's provisions are suggested. Particular attention is given to the interplay between Rome II and the two Hague Conventions relating to non-contractual obligations. Finally, gaps and deficiencies in the Regulation are exposed, in particular gaps relating to the law applicable to violations of privacy and personality rights and traffic accidents and product liability continuing to be governed by the Hague Conventions in a number of countries, and proposals are made for filling them.

-Christian Förster, The Principle of “Good Faith” in the Japanese Law of Obligations - Shingi seijitsu no gensoku - Das Prinzip von Treu und Glauben im japanischen Schuldrecht (pp. 78-99)

Abstract: With the strong German influence on legislation slowly fading after World War I, the Japanese instead focused on cultural values and social realities of their own. Typical Japanese features like adaptability and centering on group interests show in the principle of “Good Faith”. The original Civil Code did not contain a regulation on the principle, but in the early 1920ies Japanese courts employed it more and more regularly and thus helped to establish a general rule. Simultaneously, legal doctrine tried to provide a more theoretical basis, finally referring to “natural reason” as a source of law. After World War II, the principle was prominently inserted into the Civil Code following the Swiss model, making it a prerequisite for the exercise of all rights and obligations. Nowadays, in Japan as well as in Germany, the dogmatic basis of the “Good Faith” principle is undisputed and widely follows the same lines. Courts in both countries have classified certain groups of application, the principle is used mainly to specify or extend existing obligations, to counter legal misuse or to construe legal actions according to their factual surroundings. In the course of time the principle has changed from a mere means of Japanization of mainly German-originated law to a fundamental regulation to socially control legal obligations. Comparing Japan and Germany, differences show in the way the modern stage was reached, rather than in the final results. It would be unsound to assign the principle of “Good Faith” to either the Japanese or the German side, as it has strong roots in both of them and ultimately rests on common ground - human reason.

-Rolf Wagner, The Hague Convention of 30 June 2005 on Choice of Court Agreements - Das Haager Übereinkommen vom 30. 6. 2005 über Gerichtsstandsvereinbarungen (pp. 100-149)

Abstract: In 1992 the United States of America proposed that the Hague Conference for Private International Law should devise a worldwide Convention on Enforcement of Judgments in Civil and Commercial Matters. The member states of the European Community saw in the US proposal an opportunity to harmonize the bases of jurisdiction and also had in mind the far-reaching bases of jurisdiction in some countries outside of Europe as well as the dual approach of the Brussels Convention which combines recognition and enforcement of judgments with harmonization of bases of jurisdiction (double convention). Despite great efforts, the Hague Conference did not succeed in devising a convention that laid down common rules of jurisdiction in civil and commercial matters. After long negotiations the Conference was only able to agree on the lowest common denominator and accordingly concluded the Convention of 30 June 2005 on Choice of Court Agreements (Choice of Court Convention). This Convention aims to do for choice of court agreements what the New York Convention of 10 June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards has done for arbitration agreements.
The article provides an overview of the negotiations and explains in detail the content of the Choice of Court Convention. In principle the Convention applies only to exclusive choice of court agreements. However an opt-in provision allows contracting states to extend the rules on recognition and enforcement to non-exclusive choice of court agreements as well. The Convention is based on three principles. According to the first principle the chosen court in a contracting state must hear the case when proceedings are brought before it and may not stay or dismiss the case on the basis of forum non conveniens. Secondly, any court in another contracting state before which proceedings are brought must refuse to hear the case. Thirdly, a judgment given by the chosen court must be recognized and enforced in principle in all contracting states. The European instruments like the Brussels I Regulation and the Lugano Convention will continue to apply in appropriate cases albeit with a somewhat reduced scope.
The article further elaborates on the advantages and disadvantages of the Choice of Court Convention and comes to the conclusion that the advantages outweigh the disadvantages. The European Community has exclusive competence to sign and ratify the Convention. The author welcomes the proposal by the European Commission that the EC should sign the Convention. Last but not least the article raises the question what has to be done in Germany to implement the Convention if the EC decides to ratify the Convention.

Materialien (pp. 150-166)
Literatur:

I. Buchbesprechungen (pp. 167-211)
II. Eingegangene Bücher (Spätere Besprechung vorbehalten) (pp. 212-214)

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