Bibliografía (Revista de revistas) - RabelsZ 4/2013

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. 4:

Aufsätze:

-Holger Fleischer, Felix Jaeger, Valuation of Shares in France under Art. 1843-4 Code civil – Legal Aspects of Business Valuation in Comparative Company Law / Gesellschaftsrechtliche Anteilsbewertung in Frankreich gemäß Art. 1843-4 Code civil Eine Vorstudie zur Komparatistik im Recht der Unternehmensbewertung; pp. 693-722(30)

Valuation of shares is of critical importance when shareholders are forced to leave their company. Despite this importance, there is little comparative scholarship on how the valuation issue is handled in different jurisdictions. As part of a broader research agenda, this paper explores the approach taken by French company law which through art. 1843-4 Code civil relies on the final decision of an independent expert. The interpretation of this provision has given rise to many disputes in recent years, leading to a dozen cases before the Cour de cassation and a vast number of law review articles. Taking stock of these developments, the paper addresses questions such as the purpose of the valuation procedure, permissible valuation methods, judicial review of the expert's decision, the proper date for determining the value of the shares, marketability or minority discounts, and the mandatory nature of the valuation procedure. All those elements are compared to the basic provision in § 738 of the German Civil Code, which is predicated on a remarkably different concept.

-Jens Kleinschmidt, The European Certificate of Succession: An Optional Instrument as a Challenge for Private International Law / Optionales Erbrecht: Das Europäische Nachlasszeugnis als Herausforderung an das Kollisionsrecht; pp. 723-785(63)

The legal systems of the EU Member States have developed varying instruments that enable an heir or legatee to prove his position and protect third parties dealing with the holder of such an instrument (“certificates of succession”). However, these instruments are often of little use when presented abroad. In cases where the estate is located in more than one country, heirs or legatees are therefore required to apply for several national certificates. This will cost them time and money. The EU Succession Regulation (Reg. 650/2012) tackles this unsatisfying situation in two ways. On the one hand, Art. 59 on the “acceptance” of authentic instruments may promote the circulation of national certificates of succession. Under this approach, however, national certificates retain the effects attributed to them by their country of origin. On the other hand, therefore, Arts. 62 ff. create a supranational European Certificate of Succession (ECS) which may be applied for if heirs or legatees of a legatum per vindicationem need to invoke their status or exercise their rights in another Member State. The ECS does not replace the national systems but rather constitutes an optional instrument that may be applied for in lieu of a national certificate. In order to fulfil its purpose, the content of the ECS must be based on uniform private international law rules. Here, despite the harmonization efforts of the Regulation, three areas present particular challenges: (i) the relationship with conflicts rules for matrimonial property, (ii) dealing with legal institutes unknown to the legal system of the Member State where the ECS is presented, and (iii) determining the law applicable to incidental questions. Uniform interpretation and uniform characterization can only be safeguarded by the ECJ, to which, however, not all national authorities competent for issuing an ECS may refer their questions for a preliminary ruling. The ECS is based on a set of uniform rules on competence and procedure that respect the autonomy of the Member States and at the same time ensure that the ECS may perform its tasks. The question remains whether the ECS will be regarded as an attractive option compared to the existing national certificates. The far-reaching, uniform effects of the ECS and the advantages brought about by standardization regarding language and content speak in favour of the ECS. However, in certain areas a national certificate may afford a more comprehensive protection. Moreover, the implementation of the ECS into practice will have to allay the fear that its issuance may be excessively cumbersome.

-Juliana Mörsdorf-Schulte, European Private International Law of Divorce (Rome III) / Europäisches Internationales Scheidungsrecht (Rom III); pp. 786-827(42)

In order to accelerate the process of unifying European private international law, the European legislator has for the first time made use of the enhanced cooperation provided for under Art. 20 of the EU Treaty. Rome III unifies the private international law of divorce and separation in 14 Member States, with Lithuania joining in next year. The Rome regime now more completely parallels the Brussels regime.

Unlike its sister regulations, Rome III, from the perspective of most participating Member States, brings about substantial changes in the law. In most Member States, the traditional approach was to submit divorce to the law of the spouses' common nationality. Instead, Rome III determines the spouses' common habitual residence to be the principal connecting factor. To make up for the loss of stability that has occurred through this shift of approach, the Rome III Regulation allows the spouses to choose the applicable law. As in most participating Member States such freedom was previously unknown, states should take measures to inform their citizens of the new situation so as to allow them to take the initiative and fix a choice of law, which would ideally occur at an early stage of the marriage or prior to its conclusion. When a divorce action is pending, it is up to the law of the forum state whether or not a choice can still be validly made at this stage. Finally, Rome III covers not only cases of multinational marriages, but also marriages of couples having the same nationality who move from one state to another.

The law applicable under Rome III governs exclusively the question of legal status. The consequences of a divorce or separation are not covered by Rome III: Questions regarding the private international law of child custody, marital regime, maintenance etc. are governed by separate European legislation or, if there is none, by the national laws of the Member States. Problems of interpretation include whether homosexual marriages come under the scope of application of Rome III and how to determine the law applicable to preliminary questions.

-Anatol Dutta, From pia causa to Private Purposes: The Function of the Foundation in Modern Private Law Codifications / Von der pia causa zur privatnützigen Vermögensbindung: Funktionen der Stiftung in den heutigen Privatrechtskodifikationen; pp. 828-842(15)

Once a legal basis for financial charity, the private law foundation – similar to the trust – has increasingly become a vehicle for owners to tie up their property for private purposes, namely creating dynastic wealth, perpetuating certain property and protecting assets from creditors. The article outlines some reasons why a legislator could restrict the use of the foundation as an instrument of private purpose.

Literatur

I. Buchbesprechungen

-Kathrin Kroll-Ludwigs, Bea Verschraegen: Internationales Privatrecht. Ein systematischer Überblick; pp. 843-849(7)

-Peter Leibküchler, Susanne Deißner: Interregionales Privatrecht in China – zugleich ein Beitrag zum chinesischen IPR; pp. 849-853(5)

-Andreas Spickhoff, Christoph Wendelstein: Kollisionsrechtliche Probleme der Telemedizin. Zugleich ein Beitrag zur Koordination von Vertrag und Delikt auf der Ebene des europäischen Kollisionsrechts; pp. 854-857(4)

-Ulrike Babusiaux, Jonas Knetsch: Haftungsrecht und Entschädigungsfonds. Eine Untersuchung zum deutschen und französischen Recht; pp. 857-864(8)

-Thomas Kadner Graziano, European Tort Law: Basic Texts; pp. 864-869(6)

-Hein Kötz, Unexpected Circumstances in European Contract Law; pp. 869-877(9)

-Christian von Bar, Auf dem Weg zu einem Europäischen Privatrecht; pp. 877-879(3)

-Nils Jansen, Privates Recht; pp. 879-883(5)

-Yuanshi Bu, Wohnungseigentum in China. Darstellung und Rechtsgrundlagen; pp. 883-886(4)

II. Eingegangene Bücher (Spätere Besprechung vorbehalten); pp. 893-894(2)

Mitarbeiter dieses Heftes; pp. 895-895(1)

Sachverzeichnis zum 77. Jahrgang (2013); pp. 896-920(25)

Últimos números: 3/2012, 4/2012, 1/2013, 2/2013.