Bibliografía (Publicaciones periódicas) - RabelsZ (2009) 2

Último número de la Rabels Zeitschrift für ausländisches und internationales Privatrecht (RabelsZ): vol. 73 (2009), núm. 2:

Aufsätze:

-Rolf Wagner, The Hague Conference for Private International Law: Ten Years of EC Competence in Regards to Judicial Cooperation in Civil Matters - Die Haager Konferenz für Internationales Privatrecht zehn Jahre nach der Vergemeinschaftung der Gesetzgebungskompetenz in der justiziellen Zusammenarbeit in Zivilsachen, mit einem Rückblick auf die Verhandlungen zum Haager Gerichtsstandsübereinkommen (pp. 15-240)

Abstract: For a long time the Hague Conference for Private International Law has been a European organisation and a monopolist in harmonising Private International Law. When the Amsterdam Treaty came into force in 1999 there was a fundamental change as the European Community became competent in the area of civil cooperation in civil and commercial matters. Hence two organisations have been dealing with the harmonisation of Private International Law since.
When the Amsterdam Treaty came into force, the Hague Conference was in course of negotiating a Convention on Jurisdiction, Enforcement and Recognition of Judgements in Civil and Commercial Matters. After long discussions the Conference then concluded the Convention of 30 June 2005 on Choice of Court Agreements (Choice of Court Convention).
The introductory remarks provide an overview on the impacts that the transfer of competences by the Amsterdam Treaty has had on the negotiations of the Choice of Court Convention. The article explains how the Hague Conference reacted to the Amsterdam Treaty's transfer of competences to the EC. The main part of the article is devoted to the question whether and in how far a coexistence of legal instruments from The Hague and from Brussels dealing with the same topic is possible. In that respect the article explores different techniques to disconnect legal instruments from Brussels and from The Hague dealing with the same topic. It is argued that different solutions for different legal issues are necessary (e.g. grounds of jurisdiction, recognition and enforcement, conflict-of-law rules). The author concludes that there are many possibilities for the coexistence of legal instruments from Brussels and from The Hague. Despite the considerable impacts of the distribution of the new competences the Hague Conference has every reason for an optimistic outlook for the future.

-Katharina Boele-Woelki, Between Convergence and Divergence: The CEFL Principles of European Family Law - Zwischen Konvergenz und Divergenz: Die CEFL-Prinzipien zum europäischen Familienrecht (pp.241-268)

Abstract: Comparative law is an instrument to realise certain aims. Also in the case of the Commission of European Family Law (CEFL), the comparative research that has been undertaken since 2001 serves a specific purpose. The main objective of the CEFL, which represents 22 European jurisdictions, is the creation of a set of Principles of European Family Law that are thought to be the most suitable for the harmonisation of family law in Europe. CEFL's work is purely academic and involves finding, analysing and comparing rules and then formulating and presenting non-binding Principles. In doing so, the CEFL assists legislatures in their efforts to modernise family law legislation. This contribution starts with some preliminary remarks regarding the terminology which is used. Then CEFL's working method is briefly addressed by providing an explanation of the »six-step method« and the »five approaches«. In this respect, there is a connection to the working method of the international and regional organisations, especially the European Commission, that adopt international or regional instruments which are aimed at unifying or harmonising the law. These organisations also face the same problems which must be addressed by the CEFL in the drafting of its Principles. In that sense the work of organisations having legislative competence is comparable with the CEFL project. Subsequently, the main body of the article provides information as to how the CEFL built further upon convergence and how it coped with divergence in its Principles of European Family Law in the field of Divorce and Maintenance between Former Spouses (2004) and Parental Responsibilities (2007). It goes without saying that comparative research requires scientific precision. In this respect the CEFL has tried to meet the necessary standards. In particular, a great deal of consideration has been given to the explanation as to why a certain Principle has been adopted. In this process, differences have been directly confronted rather than being disregarded. It is for outside observers to determine whether the CEFL has succeeded in this endeavour. In doing so, it should be kept in mind that its Principles are not part of an institutional design, nor do they claim to produce anything beyond a frame of reference.

-Martin Illmer, The New European Private International Law of Product Liability - Steering Through Troubled Waters (pp. 269-313)

-Matthias Armgardt, The Effect of Non-Assignment Clauses in German and Foreign Law - Die Wirkung vertraglicher Abtretungsverbote im deutschen und ausländischen Privatrecht (pp. 314-335)

Abstract: This paper analyzes the effects of non-assignment clauses under the law of Germany, other European countries and the United States of America. The latest developments in European law (especially the Draft Common Frame of Reference [DCFR]) and international conventions are also considered.
First it is shown that the concept used in the jurisdiction of Germany, that prohibited assignments are absolutely void, is inadequate for the interpretation of German law. This follows especially from the comparison of § 399 2. case BGB and § 354a HGB and from the analysis of the interests of all parties. The best interpretation of § 399 2. case BGB de lege lata is the concept of the relative voidness of prohibited assignments.
In the second part of the paper it is shown that the concept of relative voidness has been successfully used by the U.S. Supreme Court and in British literature. In France an absolute effect for non-assignment clauses is totally unknown. Such clauses have only an effect inter partes. In Italy, Spain and Portugal, this restrictive interpretation of non-assignment clauses is used to protect the assignee in the case of bona fides. A combination of a relative effect of non-assignment clauses and good faith is also found in the Code Européen des Contrats and in the Principles of European Contract Law (PECL). The DCFR even suggests that prohibited assignments should be absolutely effective. Eidenmüller suggests de lege ferenda that a prohibited assignment of monetary claims should be absolutely effective. In all other cases he prefers an effect of relative voidness for prohibited assignments. The international conventions do not contemplate an absolute effect for non-assignment clauses. Either such clauses are void or they have only a relative effect.
The analysis of international law establishes that the German concept of absolute voidness resulting from non-assignment clauses is not compatible with international developments. De lege lata, the effect of § 399 2. case BGB should be interpreted as relative voidness. De lege ferenda, there is no sense in introducing the combination of a relative effect of non-assignment clauses and bona fides at least as long as Germany has no register of claims. It would be better to follow the suggestion of Eidenmüller.

-Kristoffel Grechenig, Alexander Stremitzer, The Doctrine of "rechtmäßiges Alternativverhalten". A Comparative and Economic Approach and its Implications for Proportional Liability - Der Einwand rechtmäßigen Alternativverhaltens. Rechtsvergleich, ökonomische Analyse und Implikationen für die Proportionalhaftung (pp. 336-37)

Abstract: The German doctrine of “rechtmäßiges Alternativverhalten” is a defence which allows the tortfeasor to steer clear of any compensatory claim for harm that would have still occurred even if he had exercised due care. A comparative analysis reveals that this doctrine and its equivalent in Common Law, where it is often viewed as an issue of causation, are recognised across jurisdictions. Its purpose is to prevent over-compensation. From an economic perspective, over-compensation can be shown to be harmful in a negligence-based liability system if court decisions are likely to be imprecise due to difficulties in fact-finding. Hence, under this very realistic scenario, the doctrine plays an important efficiency role by improving the quality of negligence-based liability rules. However, the defence and its functional equivalents in the Common Law are not generally recognised by courts if the hypothetical course of action under due care is uncertain. This is because, under standard rules of proof, the court would often have to rule against the plaintiff if the latter could not establish up to a certain probability threshold that the defendant's deviation from due care had caused the harm. In such a case the courts often rule against the defendant, effectively ignoring the defence. This reintroduces the identified inefficiencies stemming from over-compensation. Assessing liability proportional to the probability that harm was caused by the defendant can be shown to solve this problem. Moreover, this article argues that the application of the proportional liability rule also has a strong doctrinal appeal. In fact, this very rule stems from the consistent application of the doctrine of “rechtmäßiges Alternativverhalten” and the causation requirement in situations of uncertainty.

Literatur

I. Buchbesprechungen (pp. 372-437)
II. Eingegangene Bücher (Spätere Besprechung vorbehalten) (pp. 438-439)

Mitarbeiter dieses Heftes