WALTER DORALT, Max Planck Institute for Comparative and International Private Law
Email: walter.doralt@gmx.net
ANDREAS M. FLECKNER, Max Planck Institute for Comparative and International Private Law
Email: Fleckner@mpipriv.de
KLAUS J. HOPT, Max Planck Institute for Comparative and International Private Law, European Corporate Governance Institute (ECGI)
Email: hopt@mpipriv.de
CHRISTOPH KUMPAN, Max Planck Institute for Comparative and International Private Law
Email: kumpan@mpipriv.de
FELIX STEFFEK, Max Planck Institute for Comparative and International Private Law
Email: steffek@mpipriv.de
REINHARD ZIMMERMANN, Max Planck Institute for Comparative and International Private Law
Email: r.zimmermann@mpipriv.de
ALEXANDER HELLGARDT, Max Planck Institute for Tax Law and Public Finance
Email: alexander.hellgardt@tax.mpg.de
SUSANNE AUGENHOFER, Humboldt University of Berlin
Email: susanne.augenhofer@gmx.net

In November 2011 the European Commission has published legislative drafts proposing radical reforms for statutory audits in Europe, fueling heated political and academic debates. This paper presents cornerstones for a new regulatory framework of auditing and thereby contributes to the ongoing debate on the role of auditors and their independence.

Availability of the full-text paper:

European Business Organization Law Review (EBOR), Volume 13, Issue 01, pp. 89-101, March 2012 (doi:10.1017/S1566752912000043).

HOLGER FLEISCHER, Max Planck Institute for Comparative and International Private Law
Email: fleischer@mpipriv.de

This paper explores the “optional instrument� as a regulatory tool in European private law. The term “optional instrument� or “28th Regime� refers to supranational corporate forms, legal titles or legal instruments which provide an alternative model for doing business throughout the European Union while leaving national laws untouched. After distinguishing different modes of optional law, the paper provides an overview of optional instruments that already exist or are proposed in European company law, intellectual property law, insurance contract law and sales law. It then identifies common features and problems of the 28th Regime, from its appropriate legal basis and the need for an optional instrument to its scope of application, its interface with national law and its relationship to private international law. Finally, the paper addresses the under-researched question of vertical regulatory competition triggered by optional instruments in European private law.

Please note that this is an article published in German.

REINHARD ZIMMERMANN, Max Planck Institute for Comparative and International Private Law
Email: r.zimmermann@mpipriv.de

In the history of European private law the law of succession used to play a central role. This is different today. In most modern legal systems, comparatively little scholarly attention is devoted to it; in some of them it is not even a mandatory subject of legal training in the universities. Widely, the law of succession is regarded as static and somewhat boring. In addition, it is taken to be deeply rooted in fundamental cultural values of a society and, therefore, not suitable for comparative study and even less suitable for legal harmonization. The present article challenges these views, as far as the law of testamentary formalities is concerned. It traces the comparative history of the three main types of form requirements: writing in the testator’s own hand, reliance on witnesses, and involvement of a court of law or notary. It is argued that the differences between the legal systems found today do not reflect cultural differences and can, indeed, often be regarded as rather accidental; that the comparative study of a large variety of issues concerning testamentary formalities can indeed be meaningful and enlightening; that in a number of legal systems the law relating to testamentary formalities has been changed more often than many parts of the supposedly much more dynamic law of obligations; that the international will constitutes an unhappy compromise between the will-types found in the various national legal systems and that it is, therefore, not surprising that the Washington Convention has been so remarkably unsuccessful.

Please note that this is an article published in German.

ERNST-JOACHIM MESTMÄCKER, Max Planck Institute for Comparative and International Private Law
Email: mestmaec@mpipriv.de

Freedom of competition and economic welfare have identical economic foundations. These concepts diverged, however, as they became subject of the disciplines of economics and law, of systems of philosophy or of narratives of probable or inevitable historical developments. This paper looks at some of the more influential philosophical ideas in terms of their persistent direct or indirect influence on our present understanding of competition and welfare. Particularly notable are perceived or received antinomic interpretations of competition as a condition of economic welfare, as an individual right, an instrument of economic organisation or the purpose of rules against restrictions of competition. As far as the competition law relevance is concerned the crucial issue is the uncertain causal relation of competitive or anticompetitive conduct and its welfare effects. The theoretical and practical difficulties in verifying welfare effects become irrelevant by treating competition as a process of coordinating decentral economic planning and freedom of competition as a governing principle of a private law society.

Please note that this is an article published in German.

HOLGER FLEISCHER, Max Planck Institute for Comparative and International Private Law
Email: fleischer@mpipriv.de

The rise of proxy advisors as powerful players in corporate governance has been increasingly catching the attention of lawmakers and legal scholars. This article analyses the reasons for the growing importance of the proxy advisory industry and outlines its market structure (I.). It then considers criticisms and concerns about proxy advisors, including allegations of conflicts of interest, a lack of transparency, faulty methodology and poor responsiveness to investor interests (II.). This is followed by a presentation of recent reform proposals on the European level, in France, Germany, the United Kingdom and the United States. (III.). Finally, this article concludes by pointing out similarities between proxy advisors and other informational intermediaries (credit rating agencies, auditors, compensation consultants, financial analysts) and reviewing potential regulatory strategies for proxy advisors (IV.).

REINHARD ZIMMERMANN, Max Planck Institute for Comparative and International Private Law
Email: r.zimmermann@mpipriv.de

The lecture, given on the occasion of the 200th anniversary of the Austrian Civil Code, briefly looks at the role of that code in international comparative discourse. As all the other national civil codes, it will in future be faced with a rival: a Common European Sales Law for which the European Commission has published a Proposal on 11 October. After discussing the genesis of this proposal the lecture attempts to provide, in its main part, a first critical assessment. While emphasizing that the idea of an optional code seems to be attractive, in principle, it points to a number of unjustifiable gaps as well as other defects in the proposal submitted by the Commission. A critical analysis is considerably impeded by the fact that no travaux préparatoires are available; often, therefore, the reader can only speculate why the draftsmen of the proposal have taken one or another specific decision. The Common European Sales Law, as it is proposed now is not likely to have a great impact in legal practice. This is due, inter alia, to its scope of application which is restricted in several ways, and also to the overly complex rules relating to the agreement to make use of it. The general conditions for the success of the Common European Sales Law, particularly as far as its uniform interpretation is concerned, are also distinctly unfavorable. Moreover, it must be noted that the Commission bases its proposal on a wrong legal basis.

Please note that this is an article published in German.