JOHN MACLEOD, University of Glasgow
Email: john.macleod@glasgow.ac.uk
REINHARD ZIMMERMANN, Max Planck Institute for Comparative and International Private Law
Email: r.zimmermann@mpipriv.de

The concerns addressed by the civilian rules on unworthiness to inherit (indignitas succedendi) must be addressed by any legal system. When they arose in Scotland, responses tended to be found by the extension or development of other rules. Even where there was reference to the idea of unworthiness, as in the Parricide Act 1594 and in Buchanan v Paterson (1704), the result was later reconceptualized along different lines. In recent years, the Scottish courts have been more receptive to the public policy principle that no-one is to benefit from his own wrong, taken from the English common law. Even there, however, the Scottish courts have shown a reluctance to follow foreign authorities too closely. The result is a series of shoots, each taking a slightly different direction and none of them growing to maturity. Thus, whatever might be said about Lord Cooper's characterization of Scottish legal history as a story of "false starts and rejected experiments" on a general level, it is certainly an accurate description of the story told in this paper, i.e. of the treatment of persons who do not deserve to inherit in Scots Law.

It is remarkable how much of the discussion in Scots Law is focused on cases involving the killing of the deceased. The differences between the unworthiness and the public policy approach do not in fact play a role in this situation, and that is probably the reason why they have not elicited much comment. Beyond killing there is hardly any case law. One of the main reasons for this appears to be that other legal devices are available to take care of many, perhaps most, of the practical problems that may be raised in other instances of unworthiness to inherit.

This is a draft of John MacLeod and Reinhard Zimmermann, Unworthiness to Inherit, Public Policy, Forfeiture: The Scottish Story, Vol. 87, No. 4, Tulane Law Review, pp. 741-785, 2013.

This pre-print version is published in this Research Paper Series with the permission of the Tulane Law Review in accordance with its Author/Journal Publication Agreement and Copyright License. The publisher's version of the article will be available for download as of October 2013. For further information on the Journal, please visit its website.

HOLGER FLEISCHER, Max Planck Institute for Comparative and International Private Law
Email: fleischer@mpipriv.de
STEPHAN SCHNEIDER, Max Planck Institute for Comparative and International Private Law
Email: schneider@mpipriv.de
MARLEN THATEN, Max Planck Institute for Comparative and International Private Law
Email: thaten@mpipriv.de

Appraisal remedies have proven to be an effective instrument for minority protection in both Germany and the US. A crucial element of this remedy is the determination of a "fair price", giving rise to complicated questions of business valuation. This article gives an overview of the key valuation questions in German and US stock corporation law, in particular addressing valuation methods, the role of stock prices, minority and marketability discounts and synergistic gains. Elements from the procedural framework are also examined, including the role of valuation experts in the court room, costs of the procedure, and how case law is being adapted to new insights from corporate finance theory. The paper concludes with a comparison of the similarities and differences in overall valuation approaches of both countries.

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
ECKART BUEREN, Max Planck Institute for Comparative and International Private Law
Email: bueren@mpipriv.de

Cornering cases are well documented in commodities and securities markets. The German and European Legislator is seeking to combat them through strict rules on market manipulation. However, cornering can also violate competition law, in particular the ban on abuse of dominant position. This paper addresses cornering strategies under both headings. It is also conceived as a preliminary study exploring the overlapping areas of capital markets law and competition law in greater detail.

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

European competition law is complicated. The line between permitted and prohibited is often not clear when navigating the grey zones of the ban on cartels. To better cope with the legal risk, companies often seek internal or external legal advice. Incorrect advice however raises the question of legal consequences for a company mistakenly breaching competition law. This is the central point in a request for a preliminary ECJ ruling from an Austrian Court in which the Advocate General Kokott recently handed down her opinion. This paper examines the issue of legal advice in European competition law in detail and expands on the considerations regarding errors of law. Valuable illustrative material on the extent and boundaries of this "reliance defence" can be found not only in the rules governing fines for anti-competitive conduct in German and European competition law, but also in company law and particularly in the law on directors' and officers' liability. This article brings the criteria put forward in those areas, and seeks to help flesh out the minimum criteria proposed by the Advocate General.

Please note that this is an article published in German.

HEIN D. KOETZ, Max Planck Institute for Comparative and International Private Law
Email: koetz@mpipriv.de

Common law jurisdictions seem to accept internal legal diversity with a fair amount of equanimity. Although the United States, the United Kingdom and Canada are functioning single markets, they have no uniform contract or tort law nor do they seem to think that uniformity in these areas is meritorious or desirable as such. On the other hand civil law jurisdictions in general and the European Union in particular consider the harmonization and unification of contract law as a matter of great importance despite the fact that there is little evidence showing that uniformity is required by the practical requirements of a functioning economic community. The article discusses the development of the "Europeanization" of private law and speculates on the reasons which may have led European countries to devote much energy to the formulation, if not codification, of uniform rules of European contract law.

This article is published in this Research Paper Series with the kind permission of the Tulane European and Civil Law Forum in accordance with its Author/Journal Publication Agreement and Copyright License. For further information on the Journal, please visit its website.

HEIN D. KOETZ, Max Planck Institute for Comparative and International Private Law
Email: koetz@mpipriv.de

European legal systems are in basic agreement on the rules of contractual interpretation. However, in Chartbrook v Persimmon Homes (2009) the House of Lords affirmed the view that contrary to what is accepted by other European legal systems pre-contractual negotiations must not be accepted as a means of throwing light on the meaning of a contract. One reason is that under the strict separation in English procedural law of the pre-trial and trial phases the admission of pre-contractual negotiations would add to the cost of litigation. It would also create greater uncertainty of outcome in disputes over interpretation and would therefore be contrary to the interests of most business litigants which English contract law seems to take into account more seriously than most Continental legal systems.

Please note that this is an article published in German.

DUYGU DAMAR, Max Planck Institute for Comparative and International Private Law
Email: damar@mpipriv.de

Limitation of liability is a feature of transport law. Generally, personal wilful misconduct of the carrier must be proven by the claimant in order to break those liability limits. Since there is no generally accepted international regime for multimodal transport, other international instruments or national regimes must be applied to the issue. This article analyses the issues arisen from the lack of a uniformal regime for multimodal transport.

This article is published in this Research Paper Series with the kind permission of the Tulane Maritime Law Journal in accordance with its Author/Journal Publication Agreement and Copyright License. For further information on the Journal, please visit its website.

ECKART BUEREN, Max Planck Institute for Comparative and International Private Law
Email: bueren@mpipriv.de

According to ECJ case law, victims of infringements of EU competition law must be able to seek compensation for actual loss and for loss of profit plus interest. The interest element is very important because proceedings are often lengthy and claims for monetary damages are subject to nominalism, leading to a devaluation of the amounts. This paper analyses the respective rules under English, French and German law, examines whether they meet European law requirements and contrasts the European approach with the US approach.

The article finds that, except for US federal law, all countries provide for lump-sum prejudgment interest, albeit at considerably differing rates and excluding compound interest. The starting point is usually subject to judicial discretion, and is fixed only in German law. Inflation is never an explicit determinant of the statutory interest rate, and is not always covered under normal economic conditions. However, the claimant may always prove actual interest payments or losses on a case-by-case basis. Furthermore, in France and the US and especially for corporate claimants, inflation can implicitly be offset by damages for lost business opportunities.

The variety of national approaches to compensate for the "cost of time" is as such consistent with EU law, which - contrary to widespread opinion - does not prescribe prejudgment interest as the only permissible option. However, insofar as it is the primary instrument, the principle of effectiveness requires coverage of the inflation rate. De lege ferenda, harmonisation would offer some advantages, but require considerable intervention in national civil law systems.

An EU-US comparison reveals that whereas EU Member States try to adequately compensate the "cost of time" in each case, US federal law contents itself with covering up devaluation with treble damages, although some state laws may occasionally provide for prejudgment interest. Notwithstanding, the practical results converge considerably.

This pre-print version is published in this Research Paper Series with the permission of the rights owner, Mohr Siebeck. The publisher's version of the article will be available for download as of July 2014.