Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 1/2025: Abstracts

The newest concern of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) options the next articles:

W. Hau: Third international locations and the revision of the Brussels Ibis Regulation: jurisdiction, parallel proceedings, recognition and enforceability (German)

The query of whether or not the provisions of the Brussels Ibis Regulation on worldwide jurisdiction must be prolonged to defendants not domiciled in a Member State is to be thought-about within the upcoming spherical of revision (as expressly acknowledged in Article 79). This paper discusses this query, but additionally whether or not the already present provisions on the relevance of parallel proceedings in third international locations have confirmed efficient and whether or not the popularity and enforcement of third-country judgments ought to lastly be placed on the Brussels agenda.

Ch. Thomale: Ipso facto clauses in cross-border circumstances (German)

Ipso facto clauses or chapter clauses current a controversial downside to each contract legislation and insolvency legislation. After a comparative overview of worldwide substantive options to the issue, the article addresses related battle of legal guidelines points, notably of characterisation. Particular consideration is given to “anticipatory” ipso facto clauses, cancelling the contract earlier than the opening of insolvency proceedings.

A. Engel/R. Müller: Limits to the liberty of selection of legislation within the context of participant agent companies (German)

The article offers with a choice of the Rechtbank Limburg (Netherlands) (31 January 2024 – C/03/313729 / HA ZA 23–42, ECLI:NL:RBLIM:2024:524) regarding limits to the liberty of selection of legislation, within the context of participant agent companies in worldwide soccer. The choice hinged upon the applying of Part 297 No. 4 of the German Social Safety Code III (SGB III). The related contract between the events contained a clause in accordance with which the claimant was completely authorised to symbolize the participant through the time period of the contract. The German provision would render the clause invalid.

Whereas the events had chosen Dutch legislation to be relevant to the contract, the court docket held that the German provision was relevant in view of Artwork. 3 para. 3 of the Rome I Regulation, which stipulates the applying of necessary provisions of the state by which the details of the case are completely positioned if the legislation of one other state is chosen. The article analyses this restrict to celebration autonomy within the context of different limitations which might have been utilized: Artwork. 9 Rome I, relating to overriding necessary provisions, and Artwork. 6 Rome I, relating to the safety of customers. The article pays heed specifically to the necessities of the home connections of the case.

J. M. Blaschczok: The evaluation of arbitration agreements in competitors legislation (German)

Lately, arbitration agreements have come beneath the repeated scrutiny of competitors legislation enforcers. By analysing a latest judgment of the CJEU, the Article finds that arbitration agreements are typically nonetheless considered innocent to competitors in EU legislation. The Article subsequently discusses the distinctive circumstances by which arbitration agreements have been discovered to violate competitors legislation. These circumstances embody arbitration agreements which serve to cover-up different infringements of competitors legislation in addition to arbitration agreements by which a dominant endeavor imposes an unfair dispute decision mechanism on a structurally deprived celebration. The Article concludes that neither EU competitors legislation nor different EU legislation require the place of arbitration to be positioned throughout the single market.

D. Fischer: § 40 KGSG as an overriding necessary provision (German)

Erik Jayme acknowledged by the way in a convention report in 2018 that sec. 40 (1)–(4) Kulturgutschutzgesetz (KGSG) is an overriding necessary provision. Haimo Schack makes the identical qualification.  This discovering will be confirmed for sec. 40 (1) and (2) KGSG. This text concentrates on the character of those two paragraphs of sec. 40 KGSG as overriding necessary provisions.

B. Kasolowsky/C. Wendler: German Courts affirm Anti-Swimsuit Treatment in opposition to Sanctioned Russian Events breaching Arbitration Agreements pursuant to Part 1032(2) GCPR (English)

Following final 12 months’s landmark determination recognising the supply of declaratory anti-suit reduction, the Berlin Increased Regional Courtroom has once more utilized Part 1032(2) GCPR and broadened its scope of utility. In its new determination, the court docket reiterated that sanctioned Russian events stay certain to beforehand concluded arbitration agreements. As well as, the court docket provided much more hands-on safety for events making an attempt to serve proceedings in Russia.

L. M. Kahl: Safety for authorized prices earlier than the Unified Patent Courtroom in comparison with German and Austrian legislation (on UPC, Central Division Munich of 30 October 2023, UPC_CFI_252/2023) (German)

The article takes a choice of the Unified Patent Courtroom (UPC) as a possibility to look at the discretionary provision on safety for prices, Artwork. 69 (4) UPCA, in additional element. In keeping with this provision, each enforcement difficulties in opposition to third international locations and the insolvency danger of the plaintiff will be thought-about. Amongst different issues, the article offers with the consequences of the attribution of UPC acts to the contracting member states pursuant to Artwork. 23 UPCA on the ordering of a safety, how a so-called determination by default is to be interpreted when the claimant fails to offer a safety and traces the road of earlier case legislation. This may be seen as a part of a common pattern in the direction of higher safety of defendants.

J. Gibbons: Acceptance of English Notary Public Certificates of company illustration with out requirement of being a scrivener notary: latest determination of Regional Increased Courtroom of Cologne (English)

The aim of this text is to clarify the skilled standing, qualification, authorized competence, regulatory equivalence, authority and evidential worth of the acts of notaries public and scrivener notaries in England and Wales. That is thought-about crucial, as quite a few German courts have, in recent times, rejected certificates of company illustration issued by a notary public in England to be used in Germany and elsewhere on the bottom that they don’t seem to be issued by a scrivener notary.

Ch. Thomale: Inheritance of restricted partnership pursuits in cross-border circumstances (German)

The case be aware discusses a judgment rendered by the Increased Regional Courtroom of Hamm, regarding the inheritance of restricted partnership curiosity in a German partnership whereas the inheritance succession is ruled by Austrian legislation. The be aware focuses on the corporate and partnership legislation exceptions in accordance with Artwork. 1 para. 2 lit. h) and that i) Regulation (EU) 659/2012 and locations these within the general context of EU battle of legal guidelines.

S. L. Gössl: Beginning registrations and (no) procedural recognition in Ukrainian surrogacy circumstances (German)

In two circumstances, the BGH handled the attribution of parenthood to a baby born to a surrogate mom in Ukraine. Beneath Ukrainian legislation, the German meant dad and mom would have been the authorized dad and mom. The BGH refused to recognise this allocation beneath each procedural legislation and battle of legal guidelines. From a dogmatic standpoint, her statements are properly justifiable. The excellence between a ‘determination’ and different administrative acts within the sense of procedural recognition might have been explored additional.

M. Andrae: Correction of the date of start beneath civil standing and social legislation based mostly on overseas court docket choices and public paperwork (German)

An individual‘s id contains their date of start. Within the space of social legislation, an individual’s rights and obligations are partly depending on their age. The date of start is a part of the social insurance coverage quantity. If the particular person in query was born overseas, it’s usually the case that solely the 12 months of start is given and, if crucial, confirmed. This has corresponding penalties for civil standing certification and social legislation. The registration beneath civil standing legislation is then restricted to stating the 12 months of start. Within the space of social legislation, July 1st of the 12 months in query is fictitiously assumed. The insurance coverage quantity incorporates clean areas on this regard. Later, a particular date of start is claimed and a overseas determination or paperwork are offered as proof. In different circumstances, a date of start with a distinct 12 months of start is claimed on this approach. The article discusses beneath which situations the unique civil standing entry have to be corrected and a distinct date of start have to be assumed for social legislation functions.

N. C. Elsner: Assessment of OGH, order of two.11.2023 – 5 Nc 22/23i: Enforcement of a British determination in Austria (German)

L. M. Kahl: Assessment of OGH, order of 31.1.2024 – 3 Ob 6/24i: Judicial battle: Inadmissible non-application of the Hague Conference on Civil Process by Russian courts as a result of a Russian presidential decree (German)

A. Anthimos: UK Third Get together Prices Orders Enforceable in Greece (German)

A UK third-party prices order (TPCO) is a very unknown procedural idea in Greece. In the middle of exequatur proceedings, the Piraeus first occasion court docket and the Piraeus court docket of enchantment had been referred to as to look at the problem for the primary time in Greece, each declaring that no obstacles, particularly these intertwined with procedural public coverage, are barricading the trail in the direction of the declaration of enforcement of a TPCO issued by a decide within the UK.