Bibliografía (Artículos doctrinales)

-Restricting Freedom of Contract through Non-Discrimination Provisions? A Comparison of the Draft Common Frame of Reference (DCFR) and the German "General Equality Law"
Franz Christian Ebert, Tobias Pinkel
German Law Journal, vol.10(2009), núm. 11.
[Texto del artículo]

The article compares the effect of non-discrimination rules in German private law and in the Draft Common Frame of Reference (DCFR) on freedom of contract. The majority of German private lawyers have objected to German non-discrimination rules for their perceived restriction on freedom of contract; thus the DCFR is more likely to impact the German legal order if it is less restrictive in this regard. While the DCFR is less far-reaching than the German approach in various respects, the paper finds that the main objection of German private lawyers regarding freedom of contract still applies to a certain extent: Both legal frameworks give victims of discrimination a right to contract with the perpetrator against his will or to request specific performance as if the contract had been concluded. However, this criticism may not carry so much weight, since the DCFR contains several provisions that limit the impact on freedom of contract in practice.

-Aussenwirtschaftsrecht and corporate investments in Germany – new hurdles for foreign investors
Ruediger Theiselmann
German Law Journal, vol.10(2009), núm. 11.
[Texto del artículo]

American Private Equity Funds, Russian Oligarchs or Arabian Sheiks – of late, many German Board Members negotiate with foreign investors about entering as new shareholders. The German Foreign Economy Act (“Aussenwirtschaftsrecht”) could become more relevant in this context, having led a quiet existence thus far. Having come into force 24 April 2009, Aussenwirtschaftsrecht enables the Federal Ministry of Economy (“Bundeswirtschaftsministerium” / BMWi) to prohibit purchases of German enterprises by non-EU residents under certain circumstances. This article shows the contents and relevance of the new law as well as its consequences for foreign investors involved in Mergers and Acquisitions re German companies.

-Party Autonomy in the Brussels I Regulation and Rome I Regulation and the European Court of Justice
Jan‐Jaap Kuipers
German Law Journal, vol.10(2009), núm. 11.
[Texto del artículo]

The Brussels I Regulation provides for uniform grounds of jurisdiction, while the Rome I Regulation provides for uniform conflict of law rules in contractual obligations. Both regulations allow for party autonomy up to a certain extent. Being its complement, the Rome I Regulation mirrors in many aspects the solutions reached in the Brussels I Regulation. The European Court of Justice has, within the framework of the latter regulation, been criticised for a failure to respect the rights of private parties derived from jurisdiction clauses. The issue that will be addressed in this paper is the extent to which the interpretation of the ECJ regarding the choice of court clauses might indicate its future approach towards choice of law clauses. The paper will also explore the pressure on party autonomy in conflict of law issues that might come from Community law in general.