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Legal Scholars Engaging with Social Anthropology: Hardships and Gains
- Marie-Claire Foblets, Jean-François Gaudreault-DesBiens, Michele Graziadei
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- German Law Journal / Volume 23 / Issue 7 / September 2022
- Published online by Cambridge University Press:
- 27 September 2022, pp. 911-919
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This special issue of the German Law Journal showcases through concrete examples the conceptual and methodological toolbox that social anthropology has to offer and the added value of applying an anthropologically informed approach to legal thinking, argumentation, and practice. The contributions address a wide variety of highly topical, controversial social issues that are at the heart of the human condition, including gender recognition for non-binary people, family disputes brought before international courts, non-majoritarian language use in administrative settings, forced migration, and the impact of climate change and infrastructural development on local communities worldwide. This introduction outlines the research program into which the contributions gathered here fit; the choice of topics; and finally, the challenges the authors face in the process of integrating their intellectual encounter with anthropology into their reflections on law. The article concludes that taking recourse to anthropology can help jurists trained in state law to develop a more refined understanding of today’s societal complexity and challenges and, ultimately, to reach more nuanced, sensitive, and just decisions.
5 - Breaking Barriers in Comparative Law
- from Part I - The Tradition of Comparative Law
- Edited by Helge Dedek, McGill University, Montréal
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- A Cosmopolitan Jurisprudence
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- 10 December 2021
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- 16 December 2021, pp 97-114
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Summary
H. Patrick Glenn’s works are the result of a profound reflection on the epistemological conditions of comparative law in our epoch. He recognized that, since the emergence of the modern state, legal theory focused nearly exclusively on the state as a source of law. His approach to the study of comparative law expressed the conviction that a historical shift in emphasis in the conceptualization of Western law was long overdue. Accordingly, he considered how states and state law exist in a larger context, where alternative forms of normativity are working. This reflection brought about the open recognition of a wider range of sources of law and a wider range of relations between laws and between peoples, which explains why much of his work is to be inscribed in the paradigm of legal pluralism. His work goes beyond that paradigm, however, by exploring what pluralism entails both at the national and at the transnational level for comparative law studies, and for their methodological orientation. This chapter pays tribute to his vision and his scholarship by exploring how comparative law can fruitfully engage with legal anthropology, legal linguistics, and translation studies, as well as with the dynamics of transnational and global law.
Chapter 14 - Modernisation and Risk Regulation in the Italian Food Sector
- from Part II - State of the national art on risk
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- By Michele Graziadei, University of Turin
- Edited by Matthew Dyson
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- Regulating Risk through Private Law
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- Intersentia
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- 13 October 2018
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- 31 January 2018, pp 347-360
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Summary
INTRODUCTION
This second chapter from Italy takes up one particular theme to illustrate two important aspects of how private law regulates risks: the interactions within domestic law and the relationship between domestic law and international legal sources.
First, it is almost a truism to say that private law rules do not exist in a vacuum. Tort or contract law rules, for example, are considered as separate branches of the law for a number of purposes, but when the question is the allocation of responsibilities for the governance of certain risks, they surely come in as part of a larger picture. What is that picture? In particular, how do public law regimes interact with tort and contract law rules to regulate risk? As a preliminary point, although criminal law is present on the same scene as well, the role played by criminal law will not be explored in this context. Criminal law is mostly applied to individuals, while the accent here falls on the regulation of businesses.
The second point explored in this chapter highlights the interaction between EU law and the national legal systems with respect to risk regulation. To achieve the ends set by the European Treaties, all the Member States of the European Union have come to share a huge of amount of law. EU law has a pervasive and profound influence on the content and shape of the national legal systems of Europe, requiring more harmonisation and more uniformity across Europe. Private law is deeply involved in this movement, to the point that some commentators have decried the instrumentalisation of private law by the law of the European Union. Prime examples of this trend are the subordination of consumer information to market integration and the framing of the Product Liability Directive as a maximum harmonisation tool to advance the same goal, which is prioritised over the goal of pursuing justice among the parties. The legal cultures of the Member States and their identity are still quite different, however. The Treaty on the European Union pledges to respect pluralism, and to protect the national identities of the Member States (Arts. 1(2) and 4(2) TEU). How do these elements play out in reality? How do they play out in Italy in particular?
2 - Recognition of common law trusts in civil law jurisdictions under the Hague Trusts Convention with particular regard to the Italian experience
- Edited by Lionel Smith, McGill University, Montréal
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- Re-imagining the Trust
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- 05 April 2012
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- 01 March 2012, pp 29-82
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Notes on contributors
- Edited by Lionel Smith, McGill University, Montréal
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- Re-imagining the Trust
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- 05 April 2012
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- 01 March 2012, pp vii-viii
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6 - Language and terminology
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- By Gerhard Dannemann, Humboldt University, Silvia Ferreri, University of Torino, Michele Graziadei, University of Torino
- Edited by Christian Twigg-Flesner, University of Hull
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- The Cambridge Companion to European Union Private Law
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- 05 July 2015
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- 20 May 2010, pp 70-84
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Summary
European private law and European legal language(s)
Whenever a new political entity with legislative powers is set up, this entity will need some linguistic means for formulating its norms. The European Community and its predecessors are no exception in this respect. Making European private law raises a number of problems concerning the language(s) in which European law must be expressed, its terminology and the style of legislative drafting to be adopted. And, as all norms are put into practice when they are applied to a given case, the interpretation and construction of European law are part and parcel of the same set of problems. This chapter provides a short survey and critical discussion of how these problems have been addressed for European private law as developed in the context of the European Community. Within that context, one could argue, on the one hand, that the continental European divide between public and private law is not entirely suited to capturing the spirit and the reality of European law, as the regulatory competence of the EU transcends that classical distinction in many ways. On the other hand, the issue of language and terminology in European private law requires some treatment simply because in the recent decades EU law has regulated subjects that in many European countries form part of ‘private law’, such as the laws on natural and legal persons, contracts, torts, property, family and succession. As a consequence, these areas of law can no longer be considered as belonging exclusively to the law of the Member States. They have gained a European dimension. What makes this so interesting and challenging in the present context is the fact that the particularly rich and, in many ways, unique sets of terminology that the legal systems of Member States have developed for private law had little equivalence in the terminological acquis communautaire at the time when the EU embarked on a large-scale regulation of issues belonging to private law.
Part I - Setting the scene
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- By Michele Graziadei, Professor, University of Eastern Piedmont, Italy, Ugo Mattei, Professor, State University of Turin, Italy, Lionel Smith, Professor, McGill University, Canada
- Edited by Michele Graziadei, Università degli Studi del Piemonte Orientale Amedeo Avogadro, Ugo Mattei, Università degli Studi di Torino, Italy, Lionel Smith, McGill University, Montréal
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- Commercial Trusts in European Private Law
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- 22 August 2009
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- 03 November 2005, pp 1-2
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1 - Commercial trusts in European private law: the interest and scope of the enquiry
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- By Michele Graziadei, Professor of Comparative Private Law, University of Eastern Piedmont, Italy, Ugo Mattei, Professor of Civil Law, State University of Turin, Italy, Lionel Smith, Professor of Law, McGill University Montreal, Canada
- Edited by Michele Graziadei, Università degli Studi del Piemonte Orientale Amedeo Avogadro, Ugo Mattei, Università degli Studi di Torino, Italy, Lionel Smith, McGill University, Montréal
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- Commercial Trusts in European Private Law
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- 22 August 2009
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- 03 November 2005, pp 3-44
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Summary
The interest and scope of the enquiry
The topic to which this book is dedicated is of great interest for anybody concerned with the expanding field of European private law. In several European countries business transactions commonly require the use of trusts. The litigation of trust law issues in a business context is becoming more frequent than in the past. At the European level, legal instruments enacted by the European Community make explicit reference to trusts, or regulate transactions involving both trusts and other investment vehicles. Principles of European Trust Law, drafted by a distinguished group of scholars, are now available to provide guidance on the development of trust law in European jurisdictions. At the international level, the Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition has entered into force in several countries, providing much-needed solutions to conflicts problems raised by trusts, but also posing fresh questions on its impact and its implementation.
The great practical importance of the subject closely matches its burning academic interest. Trusts straddle the law of property and the law of personal obligations. Located at the intersection of core categories of private law, they pose problems that turn on the proper understanding of fundamental notions of private law. From the academic point of view, trusts also raise essential questions about competing claims to property, as well as about the management of property in the broadest sense. Both sets of questions involve hotly debated subjects.
Preface
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- By Michele Graziadei, Professor of Comparative Private Law, University of Eastern Piedmont, Italy, Ugo Mattei, Professor of Civil Law, State University of Turin, Italy, Lionel Smith, Professor of Law, McGill University, Canada
- Edited by Michele Graziadei, Università degli Studi del Piemonte Orientale Amedeo Avogadro, Ugo Mattei, Università degli Studi di Torino, Italy, Lionel Smith, McGill University, Montréal
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- Commercial Trusts in European Private Law
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- 22 August 2009
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- 03 November 2005, pp xv-xvii
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Summary
This book is the result of a genuinely collective enterprise. As a project, it was conceived at a preliminary meeting of one and a half days in March 1998 at the University of Trento, within a small group made up of two of the editors (Graziadei and Mattei), the chairman of the property group of the Common Core project, Professor Antonio Gambaro, and leading trust scholars Professor John Langbein from Yale, Professor Hein Kötz from Hamburg and Professor Shael Herman from Tulane. At that meeting general issues of applicability of common core methodology to the domain of trust were discussed, and a clear sense emerged that the focus should be on trust law in the commercial setting.
The trust project was officially launched in July of the same year at the general meeting of the Common Core project, in Trento, where a rudimentary first draft questionnaire was discussed in depth under the leadership of Professor Antonio Gambaro, at the property session. At that meeting Lionel Smith (at that time of Oxford University) joined the editorial team and the first participants joined in. In June 1999 all the participants to the project met in Como for a three-day conference sponsored by the University of Insubria. At that meeting draft responses to the new version of the questionnaire were discussed together with Professor John Langbein, who also gave a speech on institutional investors and the law of trusts.
Case 4 - Basic insolvency situation
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- By Georg Graf, Professor of Private Law, University of Salzburg, Austria, Monika Hinteregger, Professor of Civil Law, University of Graz, Austria, Manuela Weissenbacher, Assistant to the Chair of Civil Law, University of Graz, Austria, Benoit Allemeersch, Doctoral researcher Catholic, University of Leuven, Belgium; Attorney-at-Law bar of Brussels, Belgium, Alain Verbeke, Professor of Private and Comparative Law, Catholic University of Leuven, Belgium, Merete Clausen, Attorney-at-Law, Denmark, Lionel Smith, James McGill Professor of Law, McGill University Montreal, Canada, Jarmo Tuomisto, Professor of Civil Law, University of Turku, Finland, François Barrière, Junior Professor, University of Paris II, France, Stefan Grundmann, Professor of Private Law European and International Private and Business Law, Humboldt University, Berlin, Germany, George K. Lekkas, Attorney-at-Law, Athens, Greece, Niamh Moloney, Professor of Capital Markets Law, University of Nottingham, England, Eoin O'Dell, Fellow, Trinity College, Dublin, Ireland, Antonio Gambaro, Professor of Comparative Private Law, State University of Milan, Italy, Michele Graziadei, Professor of Comparative Private Law, University of Eastern Piedmont, Italy, Steve Jacoby, Partner Kremer Associés & Clifford Chance; Lecturer, University of Luxembourg, Marielle Koppenol-Laforce, Attorney-at-Law Houthoff Buruma, NV, Amsterdam the Netherlands, Pedro Pais de Vasconcelos, Professor, University of Lisbon, Portugal, George L. Gretton, Lord President Reid Professor of Law, University of Edinburgh, Scotland, Sergio Cámara Lapuente, Professor of Civil Law, University of La Rioja, Spain, Cristina González Beilfuss, Professor of Private International Law, University of Barcelona, Spain, Torgny Håstad, Justice of the Swedish Supreme Court and formerly Professor of Private Law, Uppsala University, Sweden
- Edited by Michele Graziadei, Università degli Studi del Piemonte Orientale Amedeo Avogadro, Ugo Mattei, Università degli Studi di Torino, Italy, Lionel Smith, McGill University, Montréal
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- Commercial Trusts in European Private Law
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- 22 August 2009
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- 03 November 2005, pp 285-340
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Summary
Case
Alternative 1
Tom is a real estate agent. One of the immovables he is trying to sell is an apartment belonging to Samantha. Bill is interested in buying this apartment. To show his seriousness in entering into negotiations, Bill writes a cheque for €10,000 as a deposit, which is to be refundable if the sale does not proceed. On Tom's instructions, Bill makes the cheque payable to Tom, and Tom deposits this cheque into his own bank account. The negotiations between Samantha and Bill break off with no contract, and Bill tells Tom to refund the money. Tom, who has made no withdrawal from the bank account in the intervening time, has become insolvent. Does Bill's claim to his deposit have priority over competing claims, or is he treated as a general creditor? Would it make a difference if Tom were a practising lawyer?
Alternative 2
Tom is a travel agent. He sells tickets from various airlines to his customers. The money paid for the tickets by his customers is deposited in a bank account in Tom's name. When Tom becomes insolvent, some customers already have their tickets and some do not (and those who do not have tickets have no contractual claims against the airlines). The customers who have not been issued tickets claim back their money. The airlines claim payment from the bank account for tickets that have been issued. Tom's general creditors also claim the money in the bank account.
Select bibliographies for jurisdictions represented
- Edited by Michele Graziadei, Università degli Studi del Piemonte Orientale Amedeo Avogadro, Ugo Mattei, Università degli Studi di Torino, Italy, Lionel Smith, McGill University, Montréal
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- Commercial Trusts in European Private Law
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- 22 August 2009
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- 03 November 2005, pp xxxii-xliv
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Case 1 - Creation and termination of the management relationship; powers of the manager
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- By Georg Graf, Professor of Private Law, University of Salzburg, Austria, Monika Hinteregger, Professor of Civil Law, University of Graz, Austria, Manuela Weissenbacher, Assistant to the Chair of Civil Law, University of Graz, Austria, Benoit Allemeersch, Doctoral researcher Catholic, University of Leuven Belgium; Attorney-at-Law bar of Brussels, Belgium, Alain Verbeke, Professor of Private and Comparative Law, Catholic University of Leuven, Belgium, Merete Clausen, Attorney-at-Law, Denmark, Lionel Smith, James McGill Professor of Law, McGill University Montreal, Canada, Jarmo Tuomisto, Professor of Civil Law, University of Turku, Finland, François Barrière, Junior Professor, University of Paris II, France, Stefan Grundmann, Professor of Private Law European and International Private and Business Law, Humboldt University, Berlin, Germany, George K. Lekkas, Attorney-at-Law, Athens, Greece, Niamh Moloney, Professor of Capital Markets Law, University of Nottingham, England, Eoin O'Dell, Fellow, Trinity College, Dublin, Ireland, Antonio Gambaro, Professor of Comparative Private Law, State University of Milan, Italy, Michele Graziadei, Professor of Comparative Private Law, University of Eastern Piedmont, Italy, Steve Jacoby, Partner Kremer Associés & Clifford Chance; Lecturer, University of Luxembourg, Marielle Koppenol-Laforce, Attorney-at-Law Houthoff Buruma, NV, Amsterdam the Netherlands, Pedro Pais de Vasconcelos, Professor, University of Lisbon, Portugal, George L. Gretton, Lord President Reid Professor of Law, University of Edinburgh, Scotland, Sergio Cámara Lapuente, Professor of Civil Law, University of La Rioja, Spain, Cristina González Beilfuss, Professor of Private International Law, University of Barcelona, Spain, Torgny Håstad, Justice of the Swedish Supreme Court and formerly Professor of Private Law, Uppsala University, Sweden
- Edited by Michele Graziadei, Università degli Studi del Piemonte Orientale Amedeo Avogadro, Ugo Mattei, Università degli Studi di Torino, Italy, Lionel Smith, McGill University, Montréal
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- Commercial Trusts in European Private Law
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- 22 August 2009
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- 03 November 2005, pp 103-217
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Summary
Case
John is a professional investment manager. Sam decides to make use of John's services after learning that he is a skilful manager. In John's office, Sam signs a document granting John full investment powers over a capital value of €2,000,000. The terms of the document indicate that John's powers are to be irrevocable for the term of five years. These powers enable John, inter alia, to buy and sell any kind of asset, including immovables. The document also provides that John will credit all the income produced by the managed capital to Sam's bank account. It stipulates that John will be entitled to deduct an annual fee, calculated as a percentage of the capital value of the managed assets. Sam then writes a cheque payable to John for €2,000,000.
Alternative 1
In the second year of their relationship, Sam reads in a newspaper that John is implicated in the international trafficking of stolen works of art. He does not know whether the allegations are true but he decides to terminate their relationship. He communicates this to John. He demands restitution of the managed assets, as well as a full account of the investments that have been made. Upon John's refusal, Sam sues, asking for: (a) a judicial declaration that the relationship is terminated; (b) a remedy enjoining John from entering into any further transaction related to the assets; (c) a full audit of the previous period; (d) restitution of the managed assets; and (e) damages.
Case 8 - Pensions funds
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- By Georg Graf, Professor of Private Law, University of Salzburg, Austria, Monika Hinteregger, Professor of Civil Law, University of Graz, Austria, Manuela Weissenbacher, Assistant to the Chair of Civil Law, University of Graz, Austria, Benoit Allemeersch, Doctoral researcher Catholic, University of Leuven, Belgium; Attorney-at-Law bar of Brussels, Belgium, Alain Verbeke, Professor of Private and Comparative Law, Catholic University of Leuven, Belgium, Merete Clausen, Attorney-at-Law, Denmark, Lionel Smith, Professor of Law, McGill University Canada, Jarmo Tuomisto, Professor of Civil Law, University of Turku, Finland, François Barrière, Junior Professor, University of Paris II, France, Stefan Grundmann, Professor of Private Law European and International Private and Business Law, Humboldt University, Berlin, Germany, George K. Lekkas, Attorney-at-Law, Athens, Greece, Niamh Moloney, Professor of Capital Markets Law, University of Nottingham, England, Eoin O'Dell, Fellow, Trinity College, Dublin, Ireland, Antonio Gambaro, Professor of Comparative Private Law, State University of Milan, Italy, Michele Graziadei, Professor of Comparative Private Law, University of Eastern Piedmont, Italy, Steve Jacoby, Partner Kremer Associés & Clifford Chance; Lecturer, University of Luxembourg, Marielle Koppenol-Laforce, Attorney-at-Law Houthoff Buruma, NV, Amsterdam the Netherlands, Pedro Pais de Vasconcelos, Professor, University of Lisbon, Portugal, George L. Gretton, Lord President Reid Professor of Law, University of Edinburgh, Scotland, Sergio Cámara Lapuente, Professor of Civil Law, University of La Rioja, Spain, Cristina González Beilfuss, Professor of Private International Law, University of Barcelona, Spain, Torgny Håstad, Justice of the Swedish Supreme Court and formerly Professor of Private Law, Uppsala University, Sweden
- Edited by Michele Graziadei, Università degli Studi del Piemonte Orientale Amedeo Avogadro, Ugo Mattei, Università degli Studi di Torino, Italy, Lionel Smith, McGill University, Montréal
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- Commercial Trusts in European Private Law
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- 22 August 2009
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- 03 November 2005, pp 431-455
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Summary
Case
A pension fund for employees of a company, that provides a specified benefit upon retirement, has been running for several years. Both the employer and the employees make contributions to the fund. The managers of the fund are of the opinion that there is a surplus of funds as a result of successful investments.
a. Can the employer suspend making contributions?
b. To whom does the surplus belong?
Discussion
AUSTRIA
An employees' pension fund that provides a specified benefit upon retirement, several years after the employer and the employee have made contributions to the fund, is not a ‘pension fund’ according to the Austrian Investment Fund Act. However, Austrian private law recognises alternative concepts that meet the requirements described in Case 8. These alternatives are based on a specific statute called the Betriebspensionsgesetz (BPG). There are basically three pension fund schemes under s. 2 BPG.
The first scheme is called Pensionskasse (s. 2 Z 1 BPG). This pension scheme is an insurance solution that allows the employer to organise the insurance entity. The insurance entity has its own legal personality based on a specific statute, the Pensionskassengesetz (PKG). Both the employer and the employee pay contributions to the insurance entity on behalf of the employee. The employees can claim benefits upon retirement, regardless of whether they still have an employment contract with the same employer.
The second pension fund scheme is a direct promise pension (direkte Leistungszusage) (s. 2 Z 2 BPG).
Case 7 - Choice of law
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- By Georg Graf, Professor of Private Law, University of Salzburg, Austria, Monika Hinteregger, Professor of Civil Law, University of Graz, Austria, Manuela Weissenbacher, Assistant to the Chair of Civil Law, University of Graz, Austria, Benoit Allemeersch, Doctoral researcher Catholic, University of Leuven, Belgium; Attorney-at-Law bar of Brussels, Belgium, Alain Verbeke, Professor of Private and Comparative Law, Catholic University of Leuven, Belgium, Merete Clausen, Attorney-at-Law, Denmark, Lionel Smith, Professor of Law, McGill University Canada, Jarmo Tuomisto, Professor of Civil Law, University of Turku, Finland, François Barrière, Junior Professor, University of Paris II, France, Stefan Grundmann, Professor of Private Law European and International Private and Business Law, Humboldt University, Berlin, Germany, George K. Lekkas, Attorney-at-Law, Athens, Greece, Niamh Moloney, Professor of Capital Markets Law, University of Nottingham, England, Eoin O'Dell, Fellow, Trinity College, Dublin, Ireland, Antonio Gambaro, Professor of Comparative Private Law, State University of Milan, Italy, Michele Graziadei, Professor of Comparative Private Law, University of Eastern Piedmont, Italy, Steve Jacoby, Partner Kremer Associés & Clifford Chance; Lecturer, University of Luxembourg, Marielle Koppenol-Laforce, Attorney-at-Law Houthoff Buruma, NV, Amsterdam the Netherlands, Pedro Pais de Vasconcelos, Professor, University of Lisbon, Portugal, George L. Gretton, Lord President Reid Professor of Law, University of Edinburgh, Scotland, Sergio Cámara Lapuente, Professor of Civil Law, University of La Rioja, Spain, Cristina González Beilfuss, Professor of Private International Law, University of Barcelona, Spain, Torgny Håstad, Justice of the Swedish Supreme Court and formerly Professor of Private Law, Uppsala University, Sweden
- Edited by Michele Graziadei, Università degli Studi del Piemonte Orientale Amedeo Avogadro, Ugo Mattei, Università degli Studi di Torino, Italy, Lionel Smith, McGill University, Montréal
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- Commercial Trusts in European Private Law
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- 22 August 2009
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- 03 November 2005, pp 406-430
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Summary
Case
Jane manages property in the interest of her client, Monica. The property is located in your country, where both Monica and Jane live and are domiciled. In their agreement they introduce a clause stating that their relationship is a trust governed by Jersey law. Litigation arises between them. Jane claims the invalidity of the trust provision of the arrangement, and claims that local law should govern the relationship. What is the result?
Discussion
AUSTRIA
Austria has not ratified the Hague Convention on the Law Applicable to Trusts and on their Recognition. Since both of the parties live and are domiciled in Austria, and the property is located there as well, the proposed relationship does not include any foreign element; this precludes the application of the Austrian conflicts law (IPRG). Therefore, the validity of the ‘choice of law clause’ between Jane and Monica is governed by the general rules of Austrian law.
Due to the contractual autonomy of the parties, the clause is legally valid and Jersey law governs the trust or fiduciary relationship. This, however, is only true as far as the default part of Austrian law is concerned; the parties cannot ‘contract out’ of the application of mandatory provisions of Austrian law. As a result, contractual autonomy permits the applicability of Jersey law regarding the contractual part of the trust, whereas the proprietary or real aspects of the relationship follow the lex rei sitae, which is Austrian law in this case.
Contributors to the case studies
- Edited by Michele Graziadei, Università degli Studi del Piemonte Orientale Amedeo Avogadro, Ugo Mattei, Università degli Studi di Torino, Italy, Lionel Smith, McGill University, Montréal
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- Commercial Trusts in European Private Law
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- 22 August 2009
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- 03 November 2005, pp xx-xx
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Part III - Conclusions
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- By Michele Graziadei, Professor of Comparative Private Law, University of Eastern Piedmont, Italy, Ugo Mattei, Professor of Civil Law, State University of Turin, Italy, Lionel Smith, Professor of Law, McGill University Canada
- Edited by Michele Graziadei, Università degli Studi del Piemonte Orientale Amedeo Avogadro, Ugo Mattei, Università degli Studi di Torino, Italy, Lionel Smith, McGill University, Montréal
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- Commercial Trusts in European Private Law
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- 22 August 2009
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- 03 November 2005, pp 533-534
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Conclusions
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- By Michele Graziadei, Professor of Comparative Private Law, University of Eastern Piedmont, Italy, Ugo Mattei, Professor of Civil Law, State University of Turin, Italy, Lionel Smith, Professor of Law, McGill University Montreal, Canada
- Edited by Michele Graziadei, Università degli Studi del Piemonte Orientale Amedeo Avogadro, Ugo Mattei, Università degli Studi di Torino, Italy, Lionel Smith, McGill University, Montréal
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- Commercial Trusts in European Private Law
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- 22 August 2009
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- 03 November 2005, pp 535-561
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Summary
Some difficulties
The second part of this volume collects reports that are the outcome of the discussion of eleven hypothetical cases.
In searching for the relevant law, all the respondents have characterised in one way or another the legal relationships between the parties, even when the questions posed did not require them to do so. It appears that, in principle, a number of general options are usually available (both across and within the legal systems under consideration) to analyse the relevant transactions. At this level of the investigation, concepts and names are important. They frame the ways each case is discussed. Here we find a rich variety of approaches to the cases, though the options available are, of course, not unlimited.
The reports above, however, also show that the labels attached to the facts do not necessarily provide the ultimate key to know what operative rules will govern each case. It would be wrong to assume that categories and names at this point do not count any more; they still play a role in explaining the outcome of the case. Nonetheless, the country reports cover issues more closely related to the circumstances of each case than they would have done if simply engaged in the discussion of the main features of mandate, fiducia, trust, etc., and they spell out answers that focus on the facts outlined in the case descriptions.
Contents
- Edited by Michele Graziadei, Università degli Studi del Piemonte Orientale Amedeo Avogadro, Ugo Mattei, Università degli Studi di Torino, Italy, Lionel Smith, McGill University, Montréal
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- Commercial Trusts in European Private Law
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- 22 August 2009
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- 03 November 2005, pp ix-xii
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Case 2 - Investment duties
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- By Georg Graf, Professor of Private Law, University of Salzburg, Austria, Monika Hinteregger, Professor of Civil Law, University of Graz, Austria, Manuela Weissenbacher, Assistant to the Chair of Civil Law, University of Graz, Austria, Benoit Allemeersch, Doctoral researcher Catholic, University of Leuven, Belgium; Attorney-at-Law bar of Brussels, Belgium, Alain Verbeke, Professor of Private and Comparative Law, Catholic University of Leuven, Belgium, Merete Clausen, Attorney-at-Law, Denmark, Jarmo Tuomisto, Professor of Civil Law, University of Turku, Finland, François Barrière, Junior Professor, University of Paris II, France, Stefan Grundmann, Professor of Private Law European and International Private and Business Law, Humboldt University, Berlin, Germany, George K. Lekkas, Attorney-at-Law, Athens, Greece, Niamh Moloney, Professor of Capital Markets Law, University of Nottingham, England, Eoin O'Dell, Fellow, Trinity College, Dublin, Ireland, Antonio Gambaro, Professor of Comparative Private Law, State University of Milan, Italy, Michele Graziadei, Professor of Comparative Private Law, University of Eastern Piedmont, Italy, Steve Jacoby, Partner Kremer Associés & Clifford Chance; Lecturer, University of Luxembourg, Marielle Koppenol-Laforce, Attorney-at-Law Houthoff Buruma, NV, Amsterdam the Netherlands, Pedro Pais de Vasconcelos, Professor, University of Lisbon, Portugal, George L. Gretton, Lord President Reid Professor of Law, University of Edinburgh, Scotland, Sergio Cámara Lapuente, Professor of Civil Law, University of La Rioja, Spain, Cristina González Beilfuss, Professor of Private International Law, University of Barcelona, Spain, Torgny Håstad, Justice of the Swedish Supreme Court and formerly Professor of Private Law, Uppsala University, Sweden
- Edited by Michele Graziadei, Università degli Studi del Piemonte Orientale Amedeo Avogadro, Ugo Mattei, Università degli Studi di Torino, Italy, Lionel Smith, McGill University, Montréal
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- Book:
- Commercial Trusts in European Private Law
- Published online:
- 22 August 2009
- Print publication:
- 03 November 2005, pp 218-246
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Summary
Case
John is a professional investment manager. Sam decides to make use of John's services after learning that he is a skilful manager. In John's office, Sam signs a document granting John full investment powers over a capital value of €2,000,000. The terms of the document indicate that John's powers are to be irrevocable for the term of five years. These powers enable John, inter alia, to buy and sell any kind of asset, including immovables. The document also provides that John will credit all the income produced by the managed capital to Sam's bank account. It stipulates that John will be entitled to deduct an annual fee, calculated as a percentage of the capital value of the managed assets. Sam then writes a cheque payable to John for €2,000,000.
Alternative 1
In the second year of their relationship, Sam learns that John has made very risky investments that have done poorly. As a result, he has lost 50 per cent of the value of the capital. Does Sam have any legal recourse?
Alternative 2
In the second year of their relationship, Sam learns that John does not use his own judgement to make any of the investment decisions. Instead John relies exclusively on the recommendations in a well-known monthly financial newsletter. Does Sam have any legal recourse?
Discussion
AUSTRIA
Alternative 1
The contract between John and Sam is to be qualified as a contract of mandate in accordance with ss. 1002 ff. ABGB.
Case 10 - Multiple debenture holders
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- By Georg Graf, Professor of Private Law, University of Salzburg, Austria, Monika Hinteregger, Professor of Civil Law, University of Graz, Austria, Manuela Weissenbacher, Assistant to the Chair of Civil Law, University of Graz, Austria, Benoit Allemeersch, Doctoral researcher Catholic, University of Leuven, Belgium; Attorney-at-Law bar of Brussels, Belgium, Alain Verbeke, Professor of Private and Comparative Law, Catholic University of Leuven, Belgium, Merete Clausen, Attorney-at-Law, Denmark, Lionel Smith, James McGill Professor of Law, McGill University Montreal, Canada, Jarmo Tuomisto, Professor of Civil Law, University of Turku, Finland, François Barrière, Junior Professor, University of Paris II, France, Stefan Grundmann, Professor of Private Law European and International Private and Business Law, Humboldt University, Berlin, Germany, George K. Lekkas, Attorney-at-Law, Athens, Greece, Niamh Moloney, Professor of Capital Markets Law, University of Nottingham, England, Eoin O'Dell, Fellow, Trinity College, Dublin, Ireland, Antonio Gambaro, Professor of Comparative Private Law, State University of Milan, Italy, Michele Graziadei, Professor of Comparative Private Law, University of Eastern Piedmont, Italy, Steve Jacoby, Partner Kremer Associés & Clifford Chance; Lecturer, University of Luxembourg, Marielle Koppenol-Laforce, Attorney-at-Law Houthoff Buruma, NV, Amsterdam the Netherlands, Pedro Pais de Vasconcelos, Professor, University of Lisbon, Portugal, George L. Gretton, Lord President Reid Professor of Law, University of Edinburgh, Scotland, Sergio Cámara Lapuente, Professor of Civil Law, University of La Rioja, Spain, Cristina González Beilfuss, Professor of Private International Law, University of Barcelona, Spain, Torgny Håstad, Justice of the Swedish Supreme Court and formerly Professor of Private Law, Uppsala University, Sweden
- Edited by Michele Graziadei, Università degli Studi del Piemonte Orientale Amedeo Avogadro, Ugo Mattei, Università degli Studi di Torino, Italy, Lionel Smith, McGill University, Montréal
-
- Book:
- Commercial Trusts in European Private Law
- Published online:
- 22 August 2009
- Print publication:
- 03 November 2005, pp 486-504
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Summary
Case
A company, XYZ Ltd, wishes to raise money in the financial markets. It is willing and able to give real security to secure the debt. The transaction must be structured so that XYZ Ltd can issue secured debt instruments to multiple investors, in such a way that each investor holds the same kind of real security over the same assets, and so that the enforcement of the security will be practicable. How can these goals be realised?
Discussion
AUSTRIA
There exists in Austrian law an old statute which governs the transaction. This is the Gesetz vom 24. April 1874 betreffend die gemeinsame Vertretung der Rechte der Besitzer von auf Inhaber lautenden oder durch Indossament übertragbaren Teilschuldverschreibungen und die bücherliche Behandlung der für solche Teilschuldverschreibungen eingeräumten Hypothekarrechte. This statute deals with Teilschuldverschreibungen. These are bonds negotiable on the capital market, issued by the company in situations like those of Case 10.
Such bonds can be secured by a mortgage on the immovable property of the company issuing the bonds. The statute enacts special provisions for such a security. The mortgage is created by presenting a mortgage deed to the court responsible for the land register. This document deed has to be drawn up by the company issuing the bonds. The individual bondholder is not registered in the land register. Only the total amount for which the bonds are issued, the number of bonds issued and the dates at which they are to be paid are registered.