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Recht (Subject) / Recht (Lesson)

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• 1. When the case takes place within one country between its citizens, which law shall be applied? The law of the country, where the case takes place.
• 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? First question: Which law should be applied? Answer to this question can be found in the rules of private international law. It would be a conflict of laws. The rules of "conflict" say which law shall govern the case.
• 5. Three circumstances give evidence for the application of conflict laws.   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.)
• 6. Give the difference between substantive law and conflicts.   Substantive law: Tells me how to solve the case, for example, what happens to the property of a person in case of her death (bbg). Conflicts: Tells me only which law should be apply for example, Does not say anything about the what happens in case of inheritance, but it tells, which statute is applicable.
• 7. Basic Principles of conflict - Name three   Principle of equality: All legal orders are principally of the same quality. There is no „ranking“ between the legal orders, none does prevails any other Private international law seeks to find the statutes to which the connection of the subject matter is closest (Savigny). 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).
• 8.Describe the structure of a conflict rule. – p. 10 Structure of any law: matter of fact and the legal consequence subject being tied = term of the system of private law (Succession) item that is tied = leads to the legal system refferred to ("is governed by the law of the country of which the deceased was a national ...") Legal Consequence: application of the law reffered to (is governed by the law....)
• 9. Typical items, to which subjects are tied in conflicts - Name 4 Nationality (close connection of the person with certain culture/legal order) - Familiy law, marriage law, law of succession Domicile and / or habitual residence (socialization of a person with regard to a certain place) - international treaties and conventions, domicile: Art. 26 I No. 3 IACC, habitual residence: Art. 4 I, 6 I Rome I Place of Action(where the person has acted,  relevant with regard to formal questions (Art. 11 alt 2 IACC) Place of Result (In cases of tort / delict the connection is defined by place in which damage occurs (see Art. 4 I Rome II-VO) Place where property is situated (often defines the connection. esp. immovable property) Place of litigation (Procedural questions) Partie's will/agreement (free will of private persons Art. 14III, 15 II, 26 IACC)
• 10. Limitations to Private Autonomy Free will of the parties is limited by by ordre public (Art. 6 IACC) by laws regarding consumer protection by basic right
• 11. Check List for Cases of Conflict 1) Connection to another country? (Art. 3 IACC) 2) Directly applicable any international conventions (Art. 3 No. 2 IACC)- UN Convention on Contracts, find in German law = if this is applicable (B2B-case), there is no conflict of law = in every country 3) Relevant rule of conflict that fits: - Rome I = contracutal obligations- Rome II = non-contractual obligations 4) Application of the rule of conflict (Use) 5) Legal Consequences and apllication of the substantive law of the legal order identified 6) Limits of application (with regard to application of foreign substantive law - Art. 6 IACC, or Art. 21 Rome I)
• 12. Definition of "referral" IACC either refers a) to the statutes of another State only (refferal to substantial law) or b) to substantial law as well as to the conflict rules of another state (general refferal) A case is handed over by country A to a legal order of country B. And country B refers it back to country A (there it goes first to conflict law and than to the material law Art. 4 § 2) or to country C. It refers to conflicts (look at the diagramm!!)
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• 13. Explain 3 different stages of referal   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 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). 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  
• 14. What is the CISG? CISG = Vienna Convention on Contracts on the International Sale of GoodsSpeciality: It is a material law because every memember state has implented it to its national law For this reason it prevails Rome I (Art. 25 I Rome I / Art. 3 No. 1 lit. b IACC.) - Consequence: No application of PIL regarding the contractural statute
• 16. When is the CISG not applicable? This Convention does not apply to sales: (Art. 2) a: "of goods bought for personal, familiy or household use, unless the seller at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use" b) - f) look to to the CISG
• 18. Can the parties to a treaty vary the rules of CISG and if yes how? Even if CISG is applicable (Art. 1 I, Art. 2 CISG) the parties can exclude its applicability either entirely or in parts or they can modify its regulations: "This treaty shall be governed by German law excluding CISG" Have to do it expressly, because the CISG is a part of a national law! Exclution on the whole of CISG and varying the effect of its substantial rules: Art. 6 1 CISG
• 19. What kind of contract of Sale of Goods and what kind of goods does CISG regulate?   All regulations refer to „goods” for example corporeal objects which are delivered on the payment of money. Moveable goods in exchange for money. a) CISG regulates purchase of removable goods (see Art.. 1 I CISG)- not for buying of immaterial rights, claims, companies(Art. 2 CISG) b) Buying, not other Kinds of Treaties (buying goods in change for money)- does not contain: barter deals, compensatory contracts c) Contracts for the Supply of Services- but does not consist contracts that manily deal with the supply of services (Art. 3 II CISG)  
• 21. What is the aim of the Preamble to the Rome I Regulation?   It is the aim of Rome I (contractual obligations), 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). and to creation of an area of freedom and justice; to make trade easieer.
• 22. What does Rome I regulate with regard to unjust enrichment (unrechtmäßige Bereicherung) , negotiorum gestio and culpa in contrahendo (cic)? – p. 63 Rome I does not regulate this. You can find it in Rome II Art. 10-12
• 23. What does the law of contracts in Rome I contain? - the closing of a treaty and its 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-fufilment of contractual duties (Art. 12 I lit.c)- termination and the limitation of obligations (Art. 12 I lit. d)- the consequences, if a treaty is void (Art. 12 I lit. e)
• 24. Which limitations in the freedom of choice of the law does Rome I stipulate for? Acc. to Art 3 Rome I parties are free to choose the applicable law. The freedom of choice is limited as follows: - obligatory national law, when a case is "national (Art. 3 III), highest ranking of national law: Basic Law / Constituional Law- obligatory Community Law (Art. 3IV), e.g. European Law (higher than Basic law)
• 25. You know the expressed choice of law. Which other possibilities to choose a law do you know?   tacit consent (implied choice/angedeutete Wahl) → Tacit consent can be proofed by certain facts which give more or less strong indications regarding such consent.
• 26. What are strong, what weak indications for a choice? – p. 66   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
• 27. How are formal requirements (Vorgaben) regarding the closing of a treaty dealt with in Rome I? – p. 67, 68 Rome I seeks not to make treaties invalid due to the fact that the parties to the treaty did not observe formal rules .- Art. 11 I: a contract is formally valid if it satisfies the formal requirements of the law of the country where it is concluded (pre-con. both parties are in the same country at the time of the conclusion of the contract) - Art. 11 II: regulations in other cases of the closing of a treaty which seek not to make treaties invalid due to formal requirements - see more Art. 11 Rome I
• 28. What kind of provisions does Rome I refer to? Substantive or provisions of private International law? - Refferal principally made to substantive provisions unless it is written down in Rom I. - this excludes renvoi to another legal order (Art. 20 Rome I)
• 29. Does Rome I contain any provisions regarding the protection of consumers?   YES Art. 6 Rome I §1 Protection of Consumers (Art. 6 Rome I) → If a „professional“ acts in the country where the „consumer“ has his habitual residence, the law of the country where the consumer has his habitual residence shall be applied.
• What specialities do the consumer protective provisions provide for? Autonomous Connection of a Case acc. to Art. 6 I Rome I- the law of the Stat is applicable where the consumer has its habitual residence, provided that the professional a) pursues his commercial or professional activities in the consumers country, or b) directs such activities to that country or to several countries incl. consumers country and the contract falls within the scope of such activities (esp. via internet) Connection according to Art. 6 III Rome I- as far as the requirements of Art. 6 I a/b are not met, Art. 6 III leads to the application of Art. 3 (applicabl. law is chosen) or 4 (applicabl. law is objectively determined) Choice of law limited acc. to Art. 6 II Rome I- Art. 6 II 2 Rome I stipulates , that the choice of law may not have the result of depriving the consumer of the protection Excluded Treaties acc. to Art. 6 IV Rome I- this article lists all kinds of treaties that are excluded (take a look) freedom of choice (Art. 6 (2) - Rome I) - freedom to set up a treaty the consumer can't deprive his rights
• 31. Where are questions of delict and tort regulated?   Questions of delict and tort is regulated in Rome II (in the field of non-contractual obligations).
• 32. What is the common aim of Rome I and Rome II? both Regulations have the aim of creating similar conflict of law-rules (Schaffung einheitlicher Kollisionsnormen) in the field of contractual obligations (Rome I) and in the field of non-contractual obligations (Rome II)
• 33. What is the scope of Rome II?   Rome II embraces (umfassen) all non-contractual obligations, whether in civil or in commercial matters, involving a conflict of laws (Art. 1 I 1 Rome II).
• 35. What is the speciality regarding the choice of law in delict cases? A choice of law can only be made „after the event giving rise to the damage occured“ (see Art. 14 I lit. a Rome II). But only a choice of law "before the event giving rise to the damage orccured" is possible "where all the contracting parties are pursuing a commercial activity: Art. 14 lit. Rome II = they are professionals, they can choice the law
• 36. What is the "event giving rise to the damage occured"? Examples!     The event giving rise to the damage occurred is the date of the accident = 01st May and the incidence(Eintreten) of damage is the time, at which the damage (in this case: at B) occurs = 05th May For example: 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.
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• 37. What does "principle of causality" mean? For example,  A crosses a red traffic light; C gets hurt by the car of B, but A's mistake did not cause this accident. The event giving rise to the accident of C is not the action of A but that of B. Therefore A is not liable regarding C's damage because his action did not cause B's accident.
• 38. What happens in a delict case, if the injuring and the injured person both have their habitual residence in the same country! Quote!   If both have their habitual residence in the same country, the law of this country shall be applicable (Art. 4 II Rome II). Reason= the habitual residence shows a deep connection tho the state; 2 persons same habitual residence = this fact is a strong indication that the legal order of this state is the one dominating the private life of both persons
• 39. Description of - Economy - International Ecnonomy - Law - International Law - International economic law - Economy: careful management of resources to avoid unnecessary expenditure or waste - International Economy: careful management of resources to avoid unnecessary expenditure or waste on an international level - law: A rule of conduct or procedure established by custom, agreement, or authority - International Law: A rule of conduct or procedure established by custom, agreement, or authority that can be applied in an international manner - International Economic Law: International economic law means international law relating to investment, economic relations, economic development, economic institutions, and regional economic integration.
• 40. Scope of international economic law? It regulates regarding its subjects: - Economic relations between States- Trans-national economic relations between individuals
• 41. 3 examples of objectives of international economic law   Import duties on foreign products Special taxes on foreign products Questions relating to the State‘s currencies Questions of trans-national financial transactions Protection of intellectual property Protection of trade marks and of inventions
• 43. What is public international law about?   public international law regulate the „law“ between States for example, how States close treaties or how States start war and how they finish it.
• 44. Where are regulations dealing with companies in trans-national operation?   Lots of rules deal with companies which act abroad or „trans-national“ These rules can be found in the rules on conflict of laws (Rom I and II, UN-Convention) in international agreements like the WTO or the IMF or even in the UN Charter (Chapters 9 and 10)
• 45. Rules to protect individuals - normally: legal rules in single State's law (e.g. German Civil Code) or State's constitution (German basic law)- I. also protected by international treaties dealing with Human Rights (e.g. European Charter on Human Rights, UN Declaration on Human Rights)
• 46. 4 basic principles in public international law regarding States   The principle of equality of States (see Art. 2 (1) UNCh) The principle of Friendly Relationship (Art. 1 (2) UNCh) The principle of non-aggression (Art. 1 (1), Art. 2 (3), (4) UNCh) The principle of sovereignty (Art. 2 (1) UNCh) The respect for human rights (Art. 1 (3) UNCh)
• 48. How are international treaties transferred to national law?   There exist special rules for the closing of international treaties. These rules are enshrined in the Vienna Convention on International Treaties. It is up to the States, which subjects they regulate in their treaties, as long as it does not infringe upon the principles of the UNch. For example, Angela Merkel has to sign up the treaty and after it can be adopted in German Law.
• 49. International customary Law?   These are rules in International Law, that are not comprised (bestanden aus) in treaties. It is the law of common practise among states. That means, examples: The immunity of diplomatic staff as well as the immunity of the embassys are created from international custom.
• 50. How does international custom enter into force?   The states need a: certain time certain practise and certain content
• 51. Characterise EU law with regard to public international and to national law - not a part of the "normal" Public International Law- special law create by its member states, as an international treaty (so called 'Rome Treaties'- member states of the EU passed part of their soverignty to the EU by their free will- EU-law prevails national law
• 52. What are the 3 major sources in national law and what is the scope of them? - Civil law(equality), Public law (subordination, states authority), Criminal law (states authority  
• 54. How does the EU "work"? What are the major institutions of the EU? - People of the EU Member-States elect the European Parliament - each EU Member-State has its representatives in the European Council - European Parliament and European Council initiate an pass decsions, regulations - The European Commission with the President can initiate to this process and gives recommondations and statements + makes decisions - The European Court of Justice (ECJ) does the judicial control
• 55. Hierachy of legal sources in the EU? Within EU: -Primary EU law (treaties on foundation of EU, General Principles; Human Rights)- Treaties and international conventions close by the EU; general principles of PIL; duties form the UN charter- Secondary EU Law: Directives, Regulations, Decisions, Recommendations/Opinions (TFEU Art. 288)
• 56. Hierarchy of legal sources with regard to a EU Member State? – suppl., p. 19 In a Member State: European law Constitution (e.g. BL)the general rules of international law, the federal law, the Länder law, the law of local public bodies or authorities
• 57.Name the legal instruments of the EU   regulation (Verordung) directive (Richtlinien) decision Recommendations and opinions  
• 59.What is the difference between a free trade area and a customary union?   regulations: these are binding in their entirety and directly applicable in all Member States; (Eine Verordnung gilt unmittelbar in jedem Mitgliedstaat, sie muss nicht wie bspw. Richtlinien in nationales Recht umgesetzt werden. ) direktives: these bind the Member States as to the results to be achieved; they have to be transposed into the national legal framework (Richtlinien wirken im Gegensatz zu Verordnungen der Europäischen Union nicht unmittelbar, sondern bedürfen zu ihrer Wirksamkeit der Umsetzung in nationales Recht. Bei der Richtlinie wird von der EU nur ein bestimmtes Ziel verbindlich vorgegeben, hinsichtlich der Form und der Mittel der Umsetzung in nationales Recht haben die Mitgliedstaaten einen Gestaltungsspielraum. )
• 59.What is the difference between a free trade area and a customary union?   Free trade area: no customs (Zoll) between member States States keep individual customs   Customary union: common customs common restrictions regarding non-members

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