Max Planck Institute for Comparative & International Private Law Research Paper Series最新文献

{"title":"Konzernrecht und Unternehmensgeschichte – Vier Schlaglichter auf ein fächerübergreifendes Forschungsfeld (Corporate Group Law and Company History – Four Spotlights on an Interdisciplinary Field of Research)","authors":"H. Fleischer","doi":"10.1628/JZ-2021-0063","DOIUrl":"https://doi.org/10.1628/JZ-2021-0063","url":null,"abstract":"Deutsche Zusammenfassung: Der vorliegende Beitrag erläutert anhand von vier Fallbeispielen aus dem In- und Ausland, wie Konzernrechtler die Befunde der modernen Unternehmensgeschichte gewinnbringend auswerten und verarbeiten können. Ein solcher Zugriff über Unternehmensstudien, Unternehmerbiographien und Unternehmensfestschriften lässt zum einen die Evolution, Innovation und Adaption konzernrechtlicher Grundstrukturen lebendig werden. Zum anderen zeigt er, mit welchen Mitteln Unternehmenslenker eine Konzernbildung oder -umbildung vorangetrieben haben und von welchen Motiven sie sich dabei leiten ließen. English Abstract: On the basis of four case studies drawn from Germany and abroad, the article demonstrates how corporate group scholars can profitably evaluate and learn from the modern history of companies. By considering corporate studies, the entrepreneurial biographies and company Festschrifts, the evolution, innovation and adaptation of corporate groups come to life. Further, such an inquiry displays the means with which business leaders have undertaken the formation or restructuring of a corporate group and it depicts the motives underlying such actions.","PeriodicalId":194580,"journal":{"name":"Max Planck Institute for Comparative & International Private Law Research Paper Series","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128125458","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"European Consumer Law after the New Deal: A Tryptich","authors":"M. Grochowski","doi":"10.1093/YEL/YEAA016","DOIUrl":"https://doi.org/10.1093/YEL/YEAA016","url":null,"abstract":"\u0000 In 2018/2019, EU private law experienced one of the most vigorous and meaningful changes in its evolution so far. The prominence of this alteration does not rest solely on the number of new rules, but—more importantly—on the substantially new perspective on economic and social tasks of European private law. The reform encompassed three core areas: consumer protection, sustainability and digital commerce. The paper seeks to better understand the transformative task of private law in the social and economic realm. The protection of the environment, on the one hand, and the informational autonomy and privacy, on the other, provide a new type of challenge for the existing agenda of private law, reaching beyond economic efficiency as its ultimate goal. Finally, the emergence of digitalization and sustainability as the new domains of private law reinvigorates the question of to what extent the European private law should directly engage itself in pursuing the social and economic agenda. The 2018/2019 legislation opened a new chapter in this discussion, facing private law with a new genre of tasks, which traditionally belonged to the domain of public ordering. The paper seeks to unpack the essence of this change by focusing on three intertwined issues: vulnerability, autonomy, and regulation. Mingled together they seem to form the backbone of the reform, which seems to provide an in-depth subversion of the existing conceptual structures of EU consumer law.","PeriodicalId":194580,"journal":{"name":"Max Planck Institute for Comparative & International Private Law Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115680726","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'Member States' and 'Third States' in the Succession Regulation","authors":"J. Basedow","doi":"10.31261/pppm.2020.26.03","DOIUrl":"https://doi.org/10.31261/pppm.2020.26.03","url":null,"abstract":"The author advocates a flexible approach with respect to the interpretation of the term “Member State” as employed in the Succession Regulation, allowing the differentiation between “participating” and “non-participating” States. It does not mean that the term “Member State” should always be interpreted in a wide sense including the three non-participating States: Denmark, the Republic of Ireland, and the United Kingdom. Whether a wide or a narrow interpretation is appropriate depends on the context and the purpose of the single provision. Most provisions contained in the chapter on jurisdiction refer to participating Member States only. But some articles such as the Article 13 of the Regulation, provide a counter-example. A uniform interpretation of the concept of Member State in all provisions of the Succession Regulation seems far too sweeping. It reminds of Begriffsjurisprudenz and does not take account of the purpose of the single provisions. In particular, it disregards the need for the cross-border protection of individual rights in a Union with open frontiers.","PeriodicalId":194580,"journal":{"name":"Max Planck Institute for Comparative & International Private Law Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130643397","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Forced Heirship and Family Provision in Latin America","authors":"J. Schmidt","doi":"10.1093/oso/9780198850397.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780198850397.003.0007","url":null,"abstract":"Latin American succession laws are generally quite homogeneous. Yet when it comes to limitations on testamentary freedom for the purpose of family protection, they split sharply into two groups, the composition of which, curiously, falls exactly along geographical lines. The South American jurisdictions are all found on one side, and those of Central America and Mexico on the other. The countries of the first group have, to this day, remained largely faithful to the tradition of forced heirship brought to the continent by the former colonial masters, Spain and Portugal. Accordingly, jurisdictions like Argentina, Brazil, and Chile reserve large parts of the estate, known as the \"legitima\", to descendants, ascendants, the surviving spouse, and sometimes even the surviving cohabitant of the deceased, and thus severely limit freedom of testation. By contrast, the Central American jurisdictions and Mexico upheld this tradition only until the late nineteenth and early twentieth centuries, when they switched abruptly to a regime that grants unlimited freedom of testation, subject only to a maintenance provision for close family members who are unable to support themselves. On the spectrum of freedom of testation, the vast majority of Latin American jurisdictions thus lie either at the very liberal or the very restrictive end. \u0000 \u0000In recent years, the South American regimes have increasingly been criticized as out of step with the realities of the twenty-first century. Just as in other parts of the world, the crumbling of the traditional family model and changes in the way wealth is created and organized, as well as the rise of life expectancy, are deemed to have eroded the foundations of forced heirship. In the light of these societal changes, and of legal developments on other continents, many South America scholars advocate a substantial increase of testamentary freedom.","PeriodicalId":194580,"journal":{"name":"Max Planck Institute for Comparative & International Private Law Research Paper Series","volume":"65 Suppl 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130022439","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"EU Law in International Arbitration: Referrals to the European Court of Justice","authors":"J. Basedow","doi":"10.54648/joia2015017","DOIUrl":"https://doi.org/10.54648/joia2015017","url":null,"abstract":"While the courts of Member States are enabled or even required to submit preliminary questions concerning the interpretation of EU law to the Court of Justice of the European Union such referrals have traditionally been held inadmissible where made by arbitration panels. The article highlights a gradual softening of the Court of Justice’s position on this matter which would allow arbitral tribunals in investment protection proceedings to address the Court of Justice already at present. It further outlines some fundamental changes in the overall environment of commercial arbitration which should lead to a reversal of the Court’s position also in this field.","PeriodicalId":194580,"journal":{"name":"Max Planck Institute for Comparative & International Private Law Research Paper Series","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115321460","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Protecting Freedom of Testation: A Proposal for Law Reform","authors":"E. Hosemann","doi":"10.36646/mjlr.47.2.protecting","DOIUrl":"https://doi.org/10.36646/mjlr.47.2.protecting","url":null,"abstract":"This Article addresses a problem ever more pressing in wealthy and aging societies like the United States: interference with freedom of testation by the use of wrongful means such as undue influence or will forgery to acquire benefits through inheritance. A detailed analysis of the remedies against interference with freedom of testation under inheritance law, tort law, and equity reveals that there is currently a significant under-deterrence of this undesirable behavior. Hence, this Article proposes a new remedy in order to protect freedom of testation more effectively: a disinheritance statute barring wrongdoers that have infringed upon someone’s freedom of testation from inheriting from their victims, not unlike the slayer statutes adopted by many state legislators in order to deal with “murdering heirs.” This statutory prohibition against inheritance in cases of interference with freedom of testation would do more than alleviate the identified under-deterrence problem. The proposed legislative reform would also conform with an important principle of American law: the idea that no one should profit from his wrongdoing. In addition, arguments in favour of the suggested proposal can be made by reference to the general trend towards a behavior-based inheritance regime and in view of the availability of similar rules in jurisdictions outside the United States.","PeriodicalId":194580,"journal":{"name":"Max Planck Institute for Comparative & International Private Law Research Paper Series","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-07-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121395039","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Die Berücksichtigung der Anspruchsentwertung im Zeitablauf bei Schadensersatz wegen Verstößen gegen EU-Kartellrecht - eine rechtsvergleichende Studie - (Approaches to Considering the Devaluation of Monetary Claims for Damages from Infringements of EU Competition Law - A Comparative Law Study)","authors":"E. Bueren","doi":"10.1628/003372513X668736","DOIUrl":"https://doi.org/10.1628/003372513X668736","url":null,"abstract":"According to ECJ case law, victims of infringements of EU competition law must be able to seek compensation for actual loss and for loss of profit plus interest. The interest element is very important because proceedings are often lengthy and claims for monetary damages are subject to nominalism, leading to a devaluation of the amounts. This paper analyses the respective rules under English, French and German law, examines whether they meet European law requirements and contrasts the European approach with the US approach.The article finds that, except for US federal law, all countries provide for lump-sum prejudgment interest, albeit at considerably differing rates and excluding compound interest. The starting point is usually subject to judicial discretion, and is fixed only in German law. Inflation is never an explicit determinant of the statutory interest rate, and is not always covered under normal economic conditions. However, the claimant may always prove actual interest payments or losses on a case-by-case basis. Furthermore, in France and the US and especially for corporate claimants, inflation can implicitly be offset by damages for lost business opportunities.The variety of national approaches to compensate for the \"cost of time\" is as such consistent with EU law, which - contrary to widespread opinion - does not prescribe prejudgment interest as the only permissible option. However, insofar as it is the primary instrument, the principle of effectiveness requires coverage of the inflation rate. De lege ferenda, harmonisation would offer some advantages, but require considerable intervention in national civil law systems.An EU-US comparison reveals that whereas EU Member States try to adequately compensate the \"cost of time\" in each case, US federal law contents itself with covering up devaluation with treble damages, although some state laws may occasionally provide for prejudgment interest. Notwithstanding, the practical results converge considerably.This article is published in this Research Paper Series with the permission of the rights owner, Mohr Siebeck. All full-text Rabel Journal articles are available via pay-per-view or subscription at IngentaConnect, a provider of digital journals on the Internet.","PeriodicalId":194580,"journal":{"name":"Max Planck Institute for Comparative & International Private Law Research Paper Series","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132943205","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Conflict of Interest, Secrecy and Insider Information of Directors, A Comparative Analysis","authors":"K. Hopt","doi":"10.2139/SSRN.2178152","DOIUrl":"https://doi.org/10.2139/SSRN.2178152","url":null,"abstract":"The duty of loyalty is highly developed in Anglo-American countries, while in continental European countries it has only received more hesitant attention. Yet more recently there are tendencies to more convergence. They stem from company law scholarship, but also from more institutionally driven developments such as the independent director movement, the corporate governance codes, to a certain degree also the harmonization efforts of the European Commission and the general influence of US American law on European company law and practices. This article concentrates on conflict of interest, secrecy and insider information of corporate directors in a functional and comparative way. The main concepts are loans and credit to directors, self-dealing, competition with the company, corporate opportunities, wrongful profiting from position and remuneration. Prevention techniques, remedies and enforcement are also in the focus. The main jurisdictions dealt with are the European Union, Austria, France, Germany, Switzerland and the UK, but references to other countries are made where appropriate.","PeriodicalId":194580,"journal":{"name":"Max Planck Institute for Comparative & International Private Law Research Paper Series","volume":"1577 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-11-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129160591","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}