Prüfungsvorbereitung

Question 1

1. When a case takes place within one country and between its citizens, which law shall be applied? – p. 2

Accepted Answer

The law of the country where the case takes place

Question 2

1. When a case takes place within one country and between its citizens, which law shall be applied? – p. 2 3. What is the case, if the parties to the treaty do not belong to the same country and / or if it is a cross-border deal? – p. 3

Accepted Answer

When parties who belong to different countries close a treaty, the first question that has to be answered is the question, which law shall govern the case. The answer to this question can be found in the rules of private international law. The better term for those regulations is „conflict of laws“. The rules of „conflict“ say, which law shall govern the case.

Question 3

5. Name three of the circumstances that give evidence for the application of conflict of laws. – p. 6

Accepted Answer

The parties of a contract belong to different countries. Example: A from Germany marries B from Britain. People do have their residence in a foreign country. Example: A and B are German citizens, but they live in Spain. They want to get married in Spain. A person is acting abroad. Example: A from Germany causes a car accident in Italy. The parties choose foreign law. Example: A and B, both French cititzens, close a contract for the sale of goods; they provide for the application of the German Civil Code. Property is situated abroad. Example: A from Stuttgart buys a house in Rome.

Question 4

6. What is the difference between substantive law and conflicts? – Explain and use an example. – p. 7

Accepted Answer

Conflict rules: Which substantive law to apply Substantive law: How to solve a case

Question 5

7. What are the basic principles of conflict? Name three. – p. 8

Accepted Answer

Principle of equality: All legal orders are principally of the same quality. There is no „ranking“ between the legal orders, none does prevail any other Private international law seeks to find the statutes to which the connection of the subject matter is closest (Savigny). Which rule is the most relevant? National law ist applied in „national“ cases; only if the connection with the subject matter is closer to foreign law,foreign law shall prevail. Generally (exception: Art. 6 IACC), private international law does not evaluate the applicable law (private international law is „blind“ regarding the result).

Question 6

8. Describe the structure of a conflict rule. – p. 10

Accepted Answer

Rules of conflict of laws (example: Art. 25 I IACC) do usually have the following contents: The matter of fact (Tatbestand) and legal consequences (Rechtsfolge). The matter of fact contains the subject (succession - Nachlass) being tied (What is tied?) on the one hand, and on the other the item (the law of the country of which the deceased was a national) that is tied (Where is it tied?) The legal consequence contains the application of the law (is governed by the law)

Question 7

9. Name four typical items, to which subjects are tied in conflicts. – p. 12 – 14

Accepted Answer

Nationality Place of Action Domicile and / or habitual residence Place where property is situated (lex rei sitae)

Question 8

10. Which limits to Private Autonomy do you know? – p. 15

Accepted Answer

The free will of the parties is limited by ordre public (Art. 6 IACC) as well as in recent times by laws regarding consumer protection. In addition, basic rights (example: Art. 3 BL) might limit private autonomy, too.

Question 9

11. Quote the check list for cases in conflicts. – p. 16 Check List PIL

Accepted Answer

1) Connection to another country? Does anything in the case lead to foreign law (see Art. 3 IACC at the end)? 2) Directly applicable international conventions (example: UN Convention on Contracts for the International Sale of Goods)? International treaties, that have become German law, prevail and exclude the application of PIL (Art. 3 No. 2 IACC). 3) Find the relevant rule of conflict / the field of law, the case addresses. Which rule of conflict „fits“ to the circumstances of the case? 4) Application of the rules of conflict. “Use“ the rule of conflict in the case. 5) Legal Consequences Which legal order rules the case? 6) Application of the substantive law of the legal order identified. Example: Application of The French Code Civil. 7) Limits of application. Do there exist limitations with regard to the application of foreign substantive law (example: Art. 6 IACC, ordre public)?

Question 10

UN Convention

Accepted Answer

UN Convention (CISG) works like an international law, every country adopted the UN Convention to its national law. The CISG ist applicable in business cases.

Question 11

UN Convention

Accepted Answer

UN Convention (CISG) works like an international law, every country adopted the UN Convention to its national law. The CISG ist applicable in business cases. CISG (Vienna Convention on Contracts on the International Sale of Goods) is material law on the field of the sale of goods. The scope of the application of CISG is regulated in Art. 4 s. 2 as well as in Art. 5 CISG. These provisions deal with the limitation of the applicability of CISG. CISG is not applicable in the following cases: Questions regarding the validity of the contract on the sale of goods (Art. 4 s. 2 lit. a CISG), Questions regarding the transfer of ownership related to the sale of goods (Art. 4 s. 2 lit. b CISG) as well as questions regarding liability with regard to personal damages (Art. 5 CISG).

Question 12

12. Give a definition of „referral“. – see p. 30

Accepted Answer

The act or process of transferring a case to the legal order of another country. Malen und erklären!

Question 13

12. Give a definition of „referral“. – see p. 30

Accepted Answer

The act or process of transferring a case to the legal order of another country. Malen und erklären! eg. referral to conflict rules of France

Question 14

13. Explain the 3 possible stages of referral. – p. 31 – 33, 34

Accepted Answer

1. Acceptance of the referral If the foreign law refers to its own legal order, this is an „acceptance of the referral“. In this case, the substantial law of the foreign country is applied. 2. Renvoi (renvoi au premier degré) If foreign PIL refers back to German law, this is called „renvoi“. In this case, German substantial law is to be applied (Art. 4 I 2 IACC). The reason for that is, that the foreign legal order by virtue of renvoi accepts the application of German law. If this is so, it would be ridiculous, if German law did not accept this renvoi and if German law would refer to a further legal order. That is why the case is solved according to German law and that this solution is final. 3. Referral to a third State (renvoi au second degré) If foreign PIL refers to the law of a third State, this is called „further referral“. The legal order of the third State, to which is referred, may a) accept the further referral, b) refer back or c) refer to the law of a 4th State or of the law of the „original“ State

Question 15

14. What does „CISG“ stand for? – p. 35

Accepted Answer

Vienna Convention on Contracts on the International Sale of Goods

Question 16

15. What is specific with CISG? Is it a conflict rule? – p. 35

Accepted Answer

No, CISG is material law on the field of the sale of goods and insofar prevails Rome I (and PIL), Art. 25 I Rome I (Art. 3 No. 1 lit. b IACC).

Question 17

16. Where is CISG not applicable? (please quote the legal sources!) – p. 35

Accepted Answer

CISG is not applicable in the following cases: Questions regarding the validity of the contract on the sale of goods (Art. 4 s. 2 lit. a CISG), Questions regarding the transfer of ownership related to the sale of goods (Art. 4 s. 2 lit. b CISG) as well as questions regarding liability with regard to personal damages (Art. 5 CISG).

Question 18

17. A buys food from D and sells it to C. The food is bad and C claims damages from A. Calculate the damages, A can claim from D. – p. 44

Accepted Answer

damages claimed by C (against A) purchase price (C paid to A) price paid by A to D costs paid by A (for example for processing the goods) damages suffered by A (that have to be paid by D)

Question 19

18. Can the parties to a treaty vary the rules of CISG and if yes, how? – p. 45

Accepted Answer

Even if CISG is applicable (see Art. 1 I, Art. 2 CISG), the parties can exclude its applicability either entirely or in parts or they can modify its regulations: Exclution of the whole of CISG („opting out“), Art. 6 alt. 1 CISG or varying the effct of its substantial rules, Art. 6 alt. 2 CISG. The choice of law must be formulated very precisely in order to prevent bad surprises! In order to opt out it is not sufficient to write as follows: „This treaty shall be governed by German law“, because German law includes CISG (see Art. 3 No. 2 IACC; common opinion) (!). Instead: „This treaty shall be governed by German law excluding CISG.“

Question 20

19. CISG regulates the sale of „goods“. – What kind of „goods“? – p. 47

Accepted Answer

Movable goods upon payement Art. 31 + Art. 53 CISG

Question 21

20. What kind of treaties are embraced by CISG? – p. 48

Accepted Answer

„Contract of the sale of goods“ as mentioned in CISG is the buying of goods in change for money. The sphere of regulation of CISG does not contain: barter deals compensatory contracts (example: The goods are produced with the machines that have been sold and the goods are delivered as payment; there exist different modifications of compensatory deals; in former times they were often closed with States of the Eastern Bloc).

Question 22

21. What is the aim of the Preamble to the Rome I Regulation? – p. 53

Accepted Answer

Creation of an area of freedom and justice. It is the aim of Rome I, to harmonise the conflict of laws-rules, in order to „maintaining and developing an area of freedom, security and justice“ (see Preamble (1) Rome I). Rome I contains an extensive Preamble in which the aim and the reasons for the single regulations are explained. This is unusual with regard to a legal act. Normally, you find such explanations in the protocols of parliament etc. Why is the Preamble part of Rome I? Because different States with different legal traditions are affected by Rome I. The Preamble shall help to similarly apply Rome I within all 27 Member States of the European Union (see Preamble (6) Rome I).

Question 23

Rome 1

Accepted Answer

Rome I is a law, that was set up by the European Union according to Art. 81 II lit. c EU-Treaty regarding the Working Procedures of the EU (see No. (2) of the Preamble of Rome I). It is the aim of Rome I, to harmonise the conflict of laws-rules, in order to „maintaining and developing an area of freedom, security and justice“ (see Preamble (1) Rome I).

Question 24

22. What does Rome I regulate with regard to unjust enrichment, negotiorum gestio and culpa in contrahendo (cic)? – p. 63

Accepted Answer

Rome I regulates contractual obligations connected to more than one country; the connection does not(!) have to be to one or more countries of the EU(!). Take into account: Unjust enrichment, Negotiorum gestio and culpa in contrahendo (cic) are regulated in Artt. 10 – 12 Rome II

Question 25

23. What does the law of contracts in Rome I particularly contain? – p. 64

Accepted Answer

the closing of a treaty and ist validity (Art. 10) the interpretation of obligations (Art. 12 I lit. a) the way of fulfilment (Art. 12 I lit. b) the consequences of non-fulfilment of contractual duties (Art. 12 I lit. c) the termination and the limitation of obligations (Art. 12 I lit. d) the consequences, if a treaty is void (Art. 12 I lit. e)

Question 26

24. Which limitations in the freedom of choice of the law does Rome I stipulate for? – p. 65

Accepted Answer

The freedom of choice is limited as follows: obligatory national law when a case is „national“ (Art. 3 III) obligatory Community Law (Art. 3 IV) the choice of law must not be at the cost of a consumer, if the choice leads to regulations different from the obligatory regulations of the State the consumer has ist residence („protection of the weaker party“) (Art. 6 II 2) the choice of law must not be at the cost of an employee, if the choice leads to regulations different from the obligatory law of the States named in Art. 8 II, III, IV („protection of the weaker party“) (Art. 8 I 2) internationally obligatory rules (Art. 9)

Question 27

25. You know the expressed choice of law. Which other possibilities to choose a law do you know? – p. 65, 66

Accepted Answer

Direct and indirect ?

Question 28

26. What are strong, what weak indications for a choice? – p. 66

Accepted Answer

Strong indications for a choice are: Agreements on a certain forum Agreements on the place of settlement Use of forms etc. that stem from a specific legal order Use of legal terms of a certain legal order Regulations in former contracts of the parties („chains“ of treaties) Behaviour of the parties in litigation Referral to other treaties or to a certain legal order Less strong indications for a choice are: Language in which the contracts are set up Currency of payments Place of the conclusion of a contract

Question 29

27. How are formal requirements regarding the closing of a treaty dealt with in Rome I? – p. 67, 68

Accepted Answer

? Rome I seeks not to make treaties invalid due to the fact that the parties to the treaty did not observe formal rules. For example, Art. 11 I stipulates, that a contract that „is formally valid if it satisfies the formal requirements of the law which governs it in substance under this Regulation or of the law of the country where it is concluded“. (Pre-condition: Both parties are in the same country at the time of the conclusion of the contract). Art. 11 II contains regulations in other cases of the closing of a treaty which seek not to make treaties invalid due to formal requirements. ?

Question 30

28. What kind of provisions does Rome I refer to? Substantive or provisions of private international law? – p. 68, 69

Accepted Answer

Referrals according to Rome I are principally made to substantive provisions (Art. 20 Rome I). I. e., referral is made directly to the substantive provisions, excluding international law norms. – What does this mean? Referral to substantive law excludes renvoi to another legal order. By this, the „chain of referral“ is broken and the legal order, found by referral in accordance to Rome I will govern the case. There is made no further referral in order to lead the case to a (final) solution. This regulation is similar to Art. 4 I 2 IACC. According to this Article, renvoi to German law only leads to substantive rules (law of conflict rules are excluded) in order to stop further renvoi and to solve the case (see above, Part 1, V. B. 2.). Die Verweisungen der Rom I-VO sind grundsätzlich Sachnormverweisungen (Art. 20 Rom I-VO). D. h., es wird direkt auf das Sachrecht des jeweiligen Staates verwiesen (außer die Rom I-VO sagt ausdrücklich etwas anderes) unter Ausschluss der IPR-Normen. - Was bedeutet das? Der Verweis direkt auf das jeweilige Sachrecht schließt die Möglichkeit aus, dass die berufene Rechtsordnung durch Weiterverweisung eine weitere Rechtsordnung beruft. Damit wird die Verweisungskette abgebrochen und es verbleibt bei der Berufung der nach den Vorschriften der Rom I-VO ermittelten Rechtsordnung. Ziel dieses Verweisungsabbruchs ist es, für den Sachverhalt eine Lösung zu finden und deshalb eine möglicherweise sehr lange Verweisungskette zu vermeiden.

Question 31

29. Does Rome I contain any provisions regarding the protection of consumers? – p. 69

Accepted Answer

Protection of Consumers (Art. 6 Rome I) If a „professional“ (definition see Art. 6 I Rome I) acts in the country where the „consumer“ (definition see Art. 6 I Rome I) has his habitual residence, the law applicable is determined according to Art. 6 Rome I.

Question 32

30. What specialities do the consumer protective provisions provide for? – p. 70 – 72

Accepted Answer

Limit the freedom of people freedom of choice (to set up a treaty and to do what they want as long as they don't infringe other people's right) Art 6 No. 2 Sent. 1+2 ?

Question 33

31. Where are questions of delict and tort regulated? – see p. 75

Accepted Answer

Rome 2 Chapter 2

Question 34

32. What is the common aim of Rome I and Rome II? – p. 73

Accepted Answer

The goal of Rome II is, to align the conflict of laws rules of the States and by virtue of that to „maintaining and developing an area of freedom, security and justice“ (see Art. 67 I EU Treaty), „for the proper functioning of the internal market“ (see Preamble (1) at the end, Rome II).

Question 35

33. What is the scope of Rome II? – p. 74

Accepted Answer

Rome II embraces all non-contractual obligations, whether in civil or in commercial matters, involving a conflict of laws (Art. 1 I 1 Rome II). b. Universal Applicability Rome II is universally applicable: Art. 3 Rome II stipulates, that „any law specified by this Regulation shall be applied whether or not it is the law of a Member State“. (The same rule can be found in Art. 2 Rome I).

Question 36

34. What does „universal applicability“ of Rome II mean and where is this regulated? – p. 75

Accepted Answer

b. Universal Applicability Rome II is universally applicable: Art. 3 Rome II stipulates, that „any law specified by this Regulation shall be applied whether or not it is the law of a Member State“. (The same rule can be found in Art. 2 Rome I).

Question 37

33. What is the scope of Rome II? – p. 74

Accepted Answer

Rome II embraces all non-contractual obligations, whether in civil or in commercial matters, involving a conflict of laws (Art. 1 I 1 Rome II).

Question 38

35. What is the speciality regarding the choice of law in delict cases? – p. 75

Accepted Answer

First of all, one checks, whether the contracting parties did choose a legal order (Art. 14 Rome II). A choice of law „after the event giving rise to the damage occured“ (see Art. 14 I lit. a Rome II). A choice of law „befere the event giving rise to the damage occured“ is possible „where all the (contracting) parties are pursuing a commercial activity“ (see Art. 14 I lit. b Rome II).

Question 39

36. What is the „event giving rise to the damage occured“? Give examples! – p. 76

Accepted Answer

Within the regulations of the law of tort / delict there exist two relevant points in time: The time at which the event occurs, giving rise to the damage (= „event giving rise to the damage“, Art. 14 Rome II) The time when the damage occurs (= incidence of damage, see for example Art. 4 I Rome II) Example 1: A causes an accident with B‘s car at 01st May. On the 05th of May, B gets pain in his back which – according to medical surveys – was caused by the accident. event giving rise to the damage occurred = date of accident = 01st May incidence of damage = time, at which the damage (in this case: at B) occurs= 05th May Both events might occur at the same time, for example, if B‘s pain occurs immediately.

Question 40

36. What is the „event giving rise to the damage occured“? Give examples! – p. 76

Accepted Answer

Within the regulations of the law of tort / delict there exist two relevant points in time: The time at which the event occurs, giving rise to the damage (= „event giving rise to the damage“, Art. 14 Rome II) The time when the damage occurs (= incidence of damage, see for example Art. 4 I Rome II) Example 1: A causes an accident with B‘s car at 01st May. On the 05th of May, B gets pain in his back which – according to medical surveys – was caused by the accident. event giving rise to the damage occurred = date of accident = 01st May incidence of damage = time, at which the damage (in this case: at B) occurs= 05th May Both events might occur at the same time, for example, if B‘s pain occurs immediately. Example 2: S constructs a building. Due to a mistake in the construction, the building collapses one year later and hurts B. event giving rise … = time of construction incidence of damage = time, when building collapsed and hurt B

Question 41

37. What does „principle of causality“ mean? – p. 77, 78

Accepted Answer

As the action (= the event giving rise to the damage occured) often coincidences with the damage, their distinction seems to be artificial. The necessity to distinguish the different points in time gets obvious when one keeps in mind that without causalty, the results would be different.

Question 42

38. What happens in a delict case, if the injuring and the injured person both have their habitual residence in the same country? Quote the source! – p. 79

Accepted Answer

When the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country, the law of this country shall be applicable (Art. 4 II Rome II). Why? The reason is, that the habitual residence of a person shows a deep connection to the state where the person has her habitual residence. If two persons do have their habitual residence within the same country, this fact is a strong indication that the legal order of this State is the one dominating the private life of both persons. That is why it is reasonable to apply the laws of this State regarding questions of delict / tort.

Question 43

39a. Economy

Accepted Answer

An entire network of producers, distributors and consumers of goods and services in a local, regional or national community

Question 44

39b. Law

Accepted Answer

a binding custom or practive of a community

Question 45

39c. International economic law

Accepted Answer

International economic law means international law relating to investment, economic relations, economic development, economic institutions, and regional economic integration.

Question 46

40. The scope of international economic law? – suppl., p. 5

Accepted Answer

Economic relations between States Trans-national economic relations between companies Trans-national economic relations between individuals

Question 47

41. Name 3 examples of the objectives of international economic law. – suppl., p. 6

Accepted Answer

… and regarding the regulatory objectives? Import duties on foreign products Special taxes on foreign products Other restrictions in free trade for foreigners (companies and individuals) Subsidies on homemade products Questions relating to the State‘s currencies Questions of trans-national financial transactions Restrictions on exports for special reasons (like the ban on the export of certain weapons) Restrictions due to resolutions of the Security Council of the UN (example: The embargo on Iraq after its aggression against Kuweit) Protection of intellectual property Protection of trade marks and of inventions

Question 48

42. What are the subjects of international economic law? – suppl., p. 7 – 9

Accepted Answer

States: Companies Individuals

Question 49

43. What is public international law about? – suppl., p. 7

Accepted Answer

… and regarding the regulatory objectives? Import duties on foreign products Special taxes on foreign products Other restrictions in free trade for foreigners (companies and individuals) Subsidies on homemade products Questions relating to the State‘s currencies Questions of trans-national financial transactions Restrictions on exports for special reasons (like the ban on the export of certain weapons) Restrictions due to resolutions of the Security Council of the UN (example: The embargo on Iraq after its aggression against Kuweit) Protection of intellectual property Protection of trade marks and of inventions

Question 50

44. Where can you find regulations dealing with companies in trans-national operation? – suppl., p. 8

Accepted Answer

Lots of rules deal with companies which act abroad or „trans-national“ These rules can be found in the rules on conflict of laws within State‘s treaties dealing with those questions in international agreements like the WTO or the IMF or even in the UN Charter (Chapters IX and X)

International Law (Subject) / Prüfungsvorbereitung (Lesson)