MAX PLANCK INSTITUTE FOR COMPARATIVE & INTERNATIONAL
PRIVATE LAW RESEARCH PAPER SERIES
"Conflict of Interest, Secrecy and Insider Information of Directors, A Comparative Analysis"
European Company and Financial Law Review (ECFR), Vol. 10, No. 2, pp. 167-193, June 2013
Max Planck Private Law Research Paper No. 13/26
KLAUS J. HOPT, Max Planck Institute for Comparative and International Private Law, European Corporate Governance Institute (ECGI)
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 toward convergence. These tendencies stem from company law scholarship, but also from more institutionally driven developments such as the independent director movement, corporate governance codes, and, to a certain degree, 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 conflicts 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 considered. 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.
This publication is with permission of the rights owner freely accessible due to an Alliance licence and a national licence (funded by the DFG, German Research Foundation) respectively.
"(K-)Ein Kartellprivileg für den Umweltschutz? ((No) Antitrust Privilege for Enviromental Protection Agreements?)"
Umweltschutz als Rechtsprivileg, Michael Kloepfer, ed., Duncker & Humblot, 2013, Forthcoming
Max Planck Private Law Research Paper No. 13/23
REINHARD ELLGER, Max Planck Institute for Comparative and International Private Law
The paper deals with the question whether the effective operation of environmental protection provisions through the cooperation between undertakings requires broader antitrust exemptions than those provided for by the competition rules of the Treaty on the Functioning of the European Union (TFEU) and the German Act Against Restraints of Competition (ARC) or calls for even complete antitrust immunity.
The analysis of European and German antitrust rules including the relevant case law leads to the result that cooperation between competing undertakings for the purpose of environmental protection may only be legally practiced within the limits set up by the competition rules of the TFEU and the ARC for such cooperation. Undertakings cooperating in the sector of environmental protection either have to refrain from anti-competitive agreements or they have to make sure that agreements with anti-competitive clauses are covered by an exemption under Art. 101 § 3 TFEU or § 2 ARC or, respectively, fall within the ambit of a block exemption regulation.
In adopting environmental protection laws, the EU member states are indirectly bound by the competition rules of the Treaty which are in the first instance directed at undertakings. According to case law of the ECJ, member states must not adopt or maintain in force measures that affect the effectiveness (effet utile) of the competition rules of the TFEU.
The practical experience in applying competition rules to agreements and unilateral behaviour in the field of environmental protection, like, e.g. in the case of "Duales System Deutschland" (a company running a system for the collection of packaging, glass and paper waste in Germany) through the European Commission and the German Bundeskartellamt (Federal Cartel Office – FCO), clearly demonstrates the cost-reducing and efficiency-enhancing effect of economic competition within the field of environmental protection.
As shown by the pertinent European and German case law, the exemption provisions of Article 101 § 3 TFEU and § 2 ARC allow for a fully adequate consideration of environmental concerns in antitrust law. The case practice of the Commission and the FCO demonstrates that these rules are flexible and broad enough to safeguard the interests of the environment without compromising the proper functioning of economic competition. Further antitrust exemptions in favor of environmental protection are not necessary.
In addition, the paper deals with environmental concerns in European state aid law and in the provisions governing public procurement.
This pre-print version is published in this Research Paper Series with the permission of the rights owner, Duncker & Humblot.
"Protecting Freedom of Testation: A Proposal for Law Reform in the United States"
University of Michigan Journal of Law Reform (U. Mich. J.L. Reform), Vol. 47, No. 2, 2014, Forthcoming
Max Planck Private Law Research Paper No. 13/24
EIKE GÖTZ HOSEMANN, Max Planck Institute for Comparative and International Private Law
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 behaviour. 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 also be made by reference to the general trend towards a behaviour-based inheritance regime and in view of the availability of similar rules in jurisdictions outside the United States.
This pre-print version is published in this Research Paper Series with the permission of the rights owner, University of Michigan Journal of Law Reform.
"Erste Interpretation des Obersten Volksgerichts zum neuen Gesetz über das Internationale Privatrecht der VR China (The Supreme People’s Court's Interpretation No. 1 on the Private International Law Act of the PRC)"
Journal of Chinese Law (ZChinR), Vol. 20, No. 2, pp. 89-98 and 107-111, June 2013
Max Planck Private Law Research Paper No. 13/25
PETER LEIBKUECHLER, Max Planck Institute for Comparative and International Private Law
In January 2013 the Supreme People's Court (SPC) published its first judicial interpretation on the 2010 Private International Law Act. The main aims of this Interpretation are to clarify the meaning of several rules, to facilitate judicial practice and to enhance legal security in private international law contexts. In order to achieve this, the Interpretation contains rather detailed provisions, often directly addressing certain issues that raised concerns among the courts when applying the Private International Law Act.
In addition, the SPC went beyond simple explanation and also created a number of rules that could not be found in the Act. These cases mostly concern issues that had been discussed by the legislator and among academia before the enactment of the Private International Law Act, but which were finally not included.
The article will show that despite several points of critique, the SPC has successfully engaged in finding solutions to existing deficiencies or potential problems in the Private International Law Act.
This article is published in this Research Paper Series with the generous and exceptional permission of the rights owner, Deutsch-Chinesische Juristenvereinigung e.V./DCJV (German Chinese Jurists' Association). Full-text ZChinR/J.Chin.L. articles and issues are available online at the website of the rights owner.
About this eJournal
The Max Planck Private Law Research Paper Series exclusively publishes research papers authored by scholars of the Max Planck Institute for Comparative and International Private Law (editors: Prof. Jürgen Basedow, Prof. Holger Fleischer, Prof. Reinhard Zimmermann). Papers cover topics on foreign, European and international private law including commercial law, business law and procedural law as well as comparative legal history and the foundations for comparative law and legal harmonisation. All papers in this series can be
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LAW RESEARCH CENTERS PAPERS
BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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