Shareholder representation and proxy voting in the European Union: a comparitive study

Paper, presented at the Conference on Comparative Corporate Governance Max-Planck-Institut für Ausländisches und Internationales Privatrecht Hamburg, May 15-17, 199

Globalizing Savigny: The State in Savigny’s Private International Law, and the Challenge of Europeanization and Globalization

How can conflict of laws respond to the challenges from globalization? Some argue that state-based approaches like governmental interest analysis are inadequate, and advocate a return to the approach taken by the German scholar Savigny in the 19th century. The article shows that the assumption is correct: state-based approaches have indeed become problematic. However, a return to Savigny\u27s approach will not help: While Savigny\u27s approach is multilateral and pays little regard to governmental interest, closer analysis reveals how central the state is to his theory. The consequences are shown in an analysis of a recent European case. It follows that we will have to think more radically about proper conflict of laws responses to globalization if we want to overcome the centrality of the state

Public and Private International Law : German Views on Global Issues

In this paper, a strategy for organisational knowledge evolution is presented. Organisational knowledge is defined as knowledge concerning the management of the artefacts provided by the organisation. The strategy is derived from a theoretical, action-oriented representation of knowledge and uses concrete instruments for iterating between reflection and action. The instruments for reflection are conceptual models and information flow diagrams. The instrument for action is an object oriented information management system, where the models are implemented and tried out in practise. By applying these instruments iteratively, organisational knowledge is generated, both as individual and shared knowledge among the actors, as well as objectified knowledge represented by the models and the implemented information management system. We describe how this strategy has been used at the Ericsson telecommunication company to handle the transition to a new software development model. The transition was complicated by the fact that Ericsson has many designers (more than 10 000) working at local design centres all over the world. Our experience shows that the proposed strategy is a powerful way to quickly acquire, deploy and manifest new organisational knowledg

The New European Choice-Of-Law Revolution

Conflict of laws in Europe was long viewed by outsiders as formalist, antiquated, and uninteresting. Now that the European Union has become more active in the field, things are changing, but most view these changes as a mere gradual evolution. This is untrue. Actually, and fascinatingly, we are observing a real European conflicts revolution—in importance, radicalness, and irreversibility comparable to the twentieth-century American conflicts revolution. European developments go beyond the federalization of choice-of-law rules in EU regulations. In addition, EU choice of law is being constitutionalized, in particular through the principles of mutual recognition and the country-of-origin principle, along with the influence from nondiscrimination, EU citizenship, and EU fundamental rights. Together, these developments create a methodological pluralization that leads to a bifurcation of intra-Community and external conflicts and to a conflict between two methods, one developed on the basis of classical choice of law, the other based on specific EU-law reasoning. These developments constitute a genuine choice-of-law revolution. Classical European choice of law was characterized by three principles: privatization, nationalization, and domestic internationalism. These are replaced by three new principles: regulation, Europeanization, and mediatization. This revolution is different from that in the United States, but it nonetheless holds important lessons. In the course of the argument, this Article introduces the other contributions to this issue. These articles were first delivered at a Symposium, jointly organized by the Duke Law Center for International and Comparative Law and the Tulane Law Review, and titled “The New European Choice-of-Law Revolution—Lessons for the United States?

Consumer protection with regard to distance contracts after the transposition of the Consumer Rights Directive in Belgium and France

A

EU Law as Private International Law? Re-Conceptualising the Country-Of-Origin Principle as Vested Rights Theory

One of the most pertinent issues in contemporary European conflict of laws is the tension between Community law and traditional choice of law rules. The biggest problem comes not from the transposition of member state rules on choice of law into methodologically comparable EC Regulations, but rather from the so-called country-of-origin principle. This principle holds, broadly, that EU member states may not impose obligations on a provider of goods and services that go beyond the obligations imposed by the provider\u27s home state. Originally conceived mainly with public law obligations in mind, the principle has an impact on choice of law insofar as it bars member states from applying their own law to the provider\u27s conduct, even if they have the closest connections to this conduct. The exact relationship between the so called country of origin principle, and private international law, has long puzzled scholars and courts. Yet attempts at explanation and reconciliation have so far been unsuccessful because they started from an inappropriately narrow understanding of private international law. Integrating comparative legal history, this paper proposes a broader understanding of private international law beyond the current post-Savignyan approach. Thus broader approach makes it possible to recognize how the country of origin principle is remarkably similar to an almost forgotten and universally rejected private international law approach - the vested rights theory. The article demonstrates the parallels between the country of origin principle and US, English, French and German historical versions theories of vested rights. This insight presents an interesting challenge. The vested rights theory is now universally rejected because the criticism brought forward against it was and is felt to be irrefutable. One might think the same criticism would be able to bring the country of origin principle down, too. Indeed, the article shows how current criticism of the country of origin principle replicates to a large degree earlier criticism made against the vested rights theory. Remarkably, however, it shows also that the country of origin principle can refute the criticism. The return of vested rights, and its regained ability to overcome seemingly irrefutable criticism, hold a broader lesson. The rise and fall (and rebirth) of private international law approaches depends less on abstract considerations and more on general ideas and ideologies of the times - in this case, economic liberalism

Explanation Interpretation in Functionalist Comparative Law — a Response to Julie De Coninck

Response to Julie de Coninck, The Functional Method of Comparative Law: Quo Vadis?, 74 Rabels Zeitschrift für ausländisches und internationales Privatrecht 318–350 (2010) in which De Coninck criticizes existing functionalist comparative law for what she perceives as lack of interest in empirical foundations

A new conflict rule for securitization and other cross-border assignments : a potential threat from Europe

One of the dangers of harmonisation and unification processes taking place within the framework of the EU is that they may result in the codification of the lowest common denominator. This is precisely what is threatening to happen in respect of assignment. Referring the transfer of receivables by way of assignment to the law of the assignor’s residence, as article 13 of the Proposal does, would be opting for the most conservative solution and would for many Member States be a step backward rather than forward. A conflict rule referring assignment to the law of the assignor's residence is too rigid to do justice to the dynamic nature of assignments in cross-border transactions and it is unjustly one-sided. It offers no real advantages when compared to other conflict rules; it even has serious disadvantages which make the conflict rule unsuitable for efficient assignment-based cross-border transactions. It is not unconceivable that this conflict rule would even be contrary to the fundamental freedoms of the ECTreaty. The Community legislators in particular should be careful not to needlessly adopt rules which create insurmountable obstacles for cross-border business where choice-of-law by the parties would perfectly do. Community legislation has a special responsibility to create a smooth legal environment for single market transactions