Última entrega de la Rabels Zeitschrift für ausländisches und internationales Privatrecht – The Rabel Journal of Comparative and International Private Law (RabelsZ): vol. 77 (2013), núm. 1:
-Jan Peter Schmidt, The Foreign legatum per vindicationem and its Effects in German Territory - A Test for Fundamental Questions of Both Substantive and Private International Law - Die kollisionsrechtliche Behandlung dinglich wirkender Vermächtnisse - Ein Prüfstein für Grundfragen des internationalen und des materiellen Privatrechts; pp. 1-30(30)Abstract: Regardless of its long tradition in Roman Law and the ius commune, the legatum per vindicationem, i.e. the legacy that transfers the ownership of an object directly from the testator to the legatee, was abolished in German law at the end of the 19th century with the creation of the German Civil Code (BGB). Ever since then a legatee acquires only a personal right against the heir for the transfer of title. In the context of German private international law, there is a long-standing debate on whether a legatum per vindicationem created under foreign law (e.g. that of France or Italy) has to be recognised in case the object is located in Germany. The courts and most authors in legal literature have denied recognition, arguing that it would violate fundamental principles of the German law of property. As a result, the legatum per vindicationem is adapted to a legacy with obligatory effects.The problem sketched out appears to be of limited importance at first sight, but in fact touches on a number of fundamental issues of private law. One is the conflict between the lex hereditatis and the lex rei sitae, which comes to the fore also in a number of other constellations; another relevant aspect is the relationship between universal and singular succession upon death, and yet another is the principle of Numerus clausus in property law. The article shows that transfer of ownership upon death is a core issue of succession law and therefore has to be governed by the lex hereditatis. The lex rei sitae must only be taken into account in a second step, in order to see whether the prescribed solution can be reconciled with its fundamental principles of general property law. These however need to be interpreted strictly and must not be confused with lex rei sitae's own principles of succession law.This method of delimiting the law applicable to the succession from the law where the estate is located is also to be followed under the EU Regulation on Succession Law in order to ensure that the policy decisions of the lex hereditatis will be respected as far as possible, instead of being overturned under the guise of alleged fundamental principles of property law. For German law this means that a foreign legatum per vindicationem will have to be recognised under the Regulation in the same way as it should already be accepted at present under autonomous law.
-Jan D. Lüttringhaus, Uniform Terminology in European Private International Law - Grund und Grenzen der rechtsaktsübergreifenden Auslegung, dargestellt am Beispiel vertraglicher und außervertraglicher Schuldverhältnisse; pp. 31-68(38)Abstract: Autonomous and interdependent interpretation is a valuable tool for completing and systematising the growing body of European private international law. Yet, the general presumption in favour of uniform interpretation of similar notions in the various European Regulations as set out in Recital (7) of both Rome I and Rome II is overly simplistic. Total uniformity cannot be achieved because provisions governing conflict of laws and jurisdiction often differ in both function and substance. Against this background, this paper analyses the rationale as well as the limits of autonomous and inter-instrumental interpretation. It demonstrates that uniform concepts may be developed in areas where the underlying motives behind European provisions on conflict of laws and jurisdiction coincide, e.g. in the context of consumer and employment contracts or direct claims under Rome II and Brussels I. These parallels pave the way for an autonomous understanding of the various notions used in the respective Regulations. However, interdependent interpretation finds its limits in teleological considerations as well as in the persisting functional differences between European instruments on conflict of laws and jurisdiction.
-Ünal Tekinalp, Introduction to the New Turkish Commercial Code and the Reform of Limited-liability Companies; pp. 69-110(42)
-Robert Magnus, The Protection of the Confidentiality of Cross-border Legal Services - Der Schutz der Vertraulichkeit bei grenzüberschreitender Anwaltstätigkeit; pp. 111-130(20)Abstract: In Germany, the protection of the confidentiality of the lawyer-client relationship is most commonly seen as a procedural question, and in cross-border cases it is therefore governed by the law of the forum. In the United States, by contrast, the classification of the attorney-client privilege is highly disputed and in conflict of laws a substantive law approach is often favoured. As the quality and scope of the protection often vary substantially, the classification of the privilege and the law applicable to it might become the decisive point of litigation.This paper analyses the negative consequences the prevailing procedural classification has on the confidentiality expectation of clients and lawyers acting internationally in Germany. The forum in which future litigation might be brought is in an international setting hardly ever foreseeable. At the time a client seeks legal advice he will, therefore, not consider the lex fori to be the law that eventually will or will not protect the confidentiality of his conversation with his lawyer. Protecting the client's expectation of confidentiality and thereby fostering an open and free conversation between attorney and client is the very essence of the attorney-client privilege, and infringements of confidentiality might therefore cause considerable harm to the policy aims of the privilege as a whole.Another disadvantage of the application of the lex fori is that the criminal law provisions covering the lawyer's duty to remain silent might be governed by the law of one state, i.e. regularly the law of the lawyer's state of practice, while his procedural duties are governed by the law of another. If the protection afforded to the attorney-client privilege in the second state is less than in the first, the lawyer might be in a difficult situation. He has to choose between either a criminal sanction in his state of practice or punishment for contempt of court in the state of litigation.After a thorough analysis of possible alternatives to the lex fori approach, the article concludes by advocating the application of the law of the attorney's state of practice.
-André Janssen, Matthias Spilker, The Application of the CISG in the World of International Commercial Arbitration, pp. 131-157(27)
-Henry Deeb Gabriel, An American Perspective on the 2010 UNIDROIT Principles of International Commercial Contracts; pp. 158-173(16)
UNIDROIT, Principles of International Commercial Contracts 2010; pp. 174-180(7)
-Jan Peter Schmidt, Derecho de los contratos internacionales en Latinoamérica, Portugal y España; pp. 181-185(5)-Peter Mankowski, Zheng Sophia Tang: Electronic Consumer Contracts in the Conflict of Laws; pp. 185-191(7)-Christian Kohler, Jan Asmus Bischoff: Die Europäische Gemeinschaft und die Konventionen des einheitlichen Privatrechts; pp. 191-202(12)-Eugenia Kurzynsky-Singer, Stanislav Kabanov: Recht und Rechtskommunikation in modernen Rechtssystemen; pp. 203-205(3)-Maria Álvarez Torné, Josep M. Fontanellas Morell: La professio iuris sucesoria; pp. 205-210(6)-Leander D. Loacker, Consumer Protection in International Private Relationships; pp. 211-219(9)-Johannes Weber, Joseph/Ketilbjørn Hertz Lookofsky: Transnational Litigation and Commercial Arbitration. An Analysis of American, European, and International Law. 3. ed.; pp. 219-223(5)
Eingegangene Bücher (Spätere Besprechung vorbehalten); pp. 224-226(3)
Mitarbeiter dieses Heftes; pp. 226-226(1)