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The past sixteen years have witnessed the proliferation of international commercial courts around the world. However, up until recently, this was largely an Asian and a Middle Eastern phenomenon. Only during the past decade have Continental European countries, notably Germany, France and the Netherlands, joined the bandwagon and started to create new judicial bodies for international commercial cases. Driven by the desire to attract high-volume commercial litigation, these bodies try to offer international businesses a better dispute settlement framework. But what are their chances of success? Will more international litigants decide to settle their disputes in these countries? In this essay, I argue that, despite its recently displayed activism, Continental Europe lags behind on international commercial courts. In fact, although the various European initiatives are laudable, most cannot compete with the traditional market leaders, especially the London Commercial Court, or with new rivals in Asia and the Middle East. If Continental Europe wants a role in the international litigation market, it must embrace more radical change. And this change will most likely have to happen on the European––not the national––level.

The European market for the settlement of international commercial disputes is currently dominated by London. According to official statistics, about 80% of the cases brought before the London Commercial Court involve at least one foreign party. And in about 50% of the cases both parties are foreign. Obviously, the London Commercial Court is a popular forum for the settlement of international commercial disputes. And, obviously, it has an international appeal that is – at least in Europe and at least thus far – second to none. The remaining EU Member States, however, are not sleeping. In fact, over the course of the last years the prospect of Brexit has induced some of them to take measures designed to make their civil justice systems more attractive for international commercial parties: Germany, for example, established two first instance, international commercial chambers at the Regional Courts in Frankfurt and Hamburg in 2018 which offer to conduct proceedings in English. France created an English language chambre internationale at the Paris Court of Appeal in March 2018 which complements and adds a second instance to the English language chamber at the Paris Commercial Court that has been operating since November 2010. The Netherlands inaugurated the English language Netherlands Commercial Court and the Netherlands Commercial Court of Appeal in January 2019. And other countries, notably Belgium and Switzerland are contemplating the establishment of one or more specialized courts to deal with international disputes. Quite clearly: the European market for international commercial litigation is on the move. And while some of the above mentioned chambers and courts were in the making before the UK decided to leave the EU in 2016, there can be little doubt that the prospect of Brexit has fuelled the development. The interesting question, however, is whether the recent trend to establish international commercial chambers and courts will actually yield any success? Will companies decide to come to the continent – rather than to London – to settle their disputes after Brexit? As a matter of principle, the odds are not too bad: After all the UK will lose its access to the European Judicial Area once Brexit becomes fully effective, namely when the transition period provided for in the Withdrawal Agreement expires. English court proceedings will then no longer benefit from the many European Regulations that ease the settlement of international disputes and judicial cooperation in cross-border civil matters. At least for companies which seek access to the European Judicial Area, Brexit will, therefore, make it less attractive to settle a dispute in London. The following chapter takes this observation as an occasion to explore the consequences of Brexit for the settlement of international commercial disputes in more detail. It argues that no court in the remaining Member State seems in a position to present itself as a serious alternative to the London Commercial Court. It is, therefore, suggested that the EU should step in and create a European Commercial Court. This Court would provide European companies with an international forum in the European Judicial Area after Brexit and would also attract disputes that would otherwise be settled before other international commercial courts or international arbitration tribunals.

Judicial cooperation in civil and commercial matters is generally perceived to be of a rather ‘specialist and technical nature’. However, for the many UK and EU citizens, families and businesses who work, live, travel and do business abroad, the current European framework for choice of law, jurisdiction and recognition and enforcement is of paramount importance. The article, therefore, explores how that framework might look like after Brexit and explores the merits and demerits of the various ways forward. It argues that the best option for both the UK and the EU would be to agree on the continued application of the existing EU instruments or to strive for conclusion of a new agreement that closely replicates these instruments. If no such agreement can be reached the UK should decide to apply the Rome I and Rome II Regulations unilaterally and sign the Lugano Convention of 2007 as well as the Hague Convention on Choice of Court Agreements of 2005.

During the last three to four decades the ‘correct’ comparative method has become the object of an intensive debate. This debate by now also covers empirical methods that have started to ‘infiltrate’ comparative law ever since the turn of the century. Behavioural analysis, however, has not yet come into the picture. The following chapter, therefore, explores how behavioural research can be put to comparative use and sheds light on recent attempts to do so. It concludes that combining comparative and behavioural insights may further our understanding of consumers’ needs and improve our ability to design legal responses. In particular, it may help to understand why legal systems are differently designed in different countries and why the same rules may trigger different reactions in different countries. The chapter, therefore, suggests that behavioural scientists and comparative lawyers should work closely together to better understand cross-cultural consumer behaviour and the complex relationship between consumer behaviour and consumer law.

The principle of party autonomy is one of the “cornerstones” of European private international law including the law of international civil procedure. It is deeply embedded in most of the regulations that have been adopted by the European legislator over the last 15 years: the Brussels I Regulation, the Rome I and II Regulations, the Maintenance Regulation as well as the Succession Regulation. However, in enacting the pertaining provisions the European legislator has opted for a sectoral approach focusing on individual legal fields. It has, thereby, lost sight of the regulation of party autonomy in other legal fields and adopted different rules to deal with the same problem. The following article sheds light on the coherence of European private international law taking the protection of weaker parties from the dangers of party autonomy as an example. It analyses which parties are perceived to be weaker in the European Private International Law of contractual and non-contractual obligations, family as well as succession law and sheds light on the various regulatory approaches applied to protect these parties. The article demonstrates that the European legislator does not follow a coherent conceptual path and argues that there is – in general – a need for a more holistic analysis of European private international law that encompasses the legal field and its underlying regulatory problems as such and across the board.

Die vor Abschluss des Vertrags zu erfullende Anzeigepflicht gehort in allen europaischen Rechtsordnungen zu den wichtigsten Pflichten des Versicherungsnehmers. Aus diesem Grund steht sie auch im Mittelpunkt der Bestrebungen zur Harmonisierung des Versicherungsvertragsrechts in Europa. Da diese in jungster Zeit wieder an Fahrt gewonnen haben, gibt der vorliegende Beitrag einen rechtsvergleichenden Uberblick uber die Regelung der vorvertraglichen Anzeigepflicht in verschiedenen europaischen Rechtsordnungen und unterbreitet darauf aufbauend Empfehlungen fur ihre Ausgestaltung in einem europaischen Regelwerk. Im Einzelnen wird vorgeschlagen, den Versicherungsnehmer zur Anzeige aller erheblichen Umstande zu verpflichten, die er kennt oder kennen musste. Fur den Fall der Verletzung wird empfohlen, dem Versicherer in Abhangigkeit vom Verschulden des Versicherungsnehmers sowie der Kausalitat des nicht angezeigten Umstandes fur den Abschluss des Vertrags und den Eintritt des Versicherungsfalls ein Recht zur Auflosung des Vertrags mit Wirkung von Anfang an, ein Recht zur Kundigung des Vertrags mit Wirkung fur die Zukunft oder einen Anspruch auf Schadensersatz einzuraumen.

One of the most important dates in German legal history is 1 October 1879. On this day the four Imperial Judiciary Laws (Reichsjustizgesetze) became effective: the Code of Civil Procedure (Zivilprozessordnung), the Code of Criminal Procedure (Strafprozessordnung), the Law on the Organization of Courts (Gerichtsverfassungsgesetz) and the Bankruptcy Code (Konkursordnung). They replaced a large number of different organizational and procedural provisions in the existing German states and effectively established legal uniformity in civil and criminal procedure in the German Empire. More specifically, the Court Organization Law created a national system of courts for civil and criminal matters consisting of Local Courts (Amtsgericht), District Courts (Landgericht), Appeals Courts (Oberlandesgericht) and the Imperial Court of Justice (Reichsgericht). The Code of Civil Procedure, the Code of Criminal Procedure and the Bankruptcy Code provided the procedural framework for all these courts thereby bringing procedural unity to the German Empire for the first time.

The article analyses three basic models that can be applied to determine the relationship between the proposed Common European Sales Law (CESL) and the rules of private international law: the ‘28th regime-model’, the ‘2nd regimemodel’, and the '1st regime-model’. It argues that both the '28th regime-model’ and the model favoured by the European Commission, the ‘2nd regime-model’, endanger the overall objective of the CESL because Article 6 Rome IRegulation will continue to apply. The '1st regime-model', in contrast, avoids application of Article 6 Rome I-Regulation because it classifies the CESL as a uniform law that takes precedence over the rules of private international law. The article, therefore, concludes that the European Commission should rethink its position and apply the '1st regime-model’ instead of the ‘2nd regime-model’.

The Oxford Civil Justice Survey fills a wide gap in the existing literature on choice of law and choice of forum in the European Union. It provides empirical evidence on how both concepts work in practice and how different legal systems are perceived by businesses. To put the survey into context and to allow for an intelligent interpretation of the results, the paper sheds light on the design of choice of law and choice of forum in the European Union in general and some recent developments in particular. It shows that choice of law and choice of forum have been recognized in Europe since the adoption of the Brussels and the Rome Conventions and that both choice of law and choice of forum have been transformed into European concepts with the conversion of the Rome and the Brussels Conventions into Community instruments. It also shows that both choice of law and choice of forum are subject to several limitations, which curtail their reach and effectiveness and, thus, reject the parties’ abilities to structure their transactions in a way that resembles national transactions. However, despite these limitations, choice of law and choice of forum remain the most important legal instruments in dealing with the uncertainties that parties to international transactions face in a world that is characterized by the multiplicity of laws.

It is commonly acknowledged that during the 20th century American and European choice-of-law theory have drifted apart: in the United States the American conflicts revolution swept the traditional vested rights theory out of the courts and the classrooms and gave way to a variety of novel approaches. In Europe, in contrast, legal systems decided to adhere to the classical concept of choice of law invented by Carl Friedrich von Savigny. However, the 20th century has not only seen transatlantic divergence. Almost unnoticed, American and European choice of law theory has developed into the same direction in one area of law: contract law. Both the Restatement (Second) of Conflict of Laws, which today is the most widely followed conflicts regime for contracts in the United States, and the EC Convention on the Law Applicable to Contractual Obligations (Rome Convention), which establishes uniform conflicts rules for virtually all of Western Europe, provide for free party choice of law. This article looks at principle of party autonomy in Europe and the United States in more detail. It demonstrates that the trend of convergence extends beyond basic conceptual similarities and that it reaches business reality through the jurisprudence of American and European courts. However, the article does not confine the discussion of party autonomy to a comparative analysis. It also determines the underlying reasons for the convergence of American and European law by looking at the field from an economic perspective. Two basic questions are addressed: first, what is the economic rationale for granting free party choice of law? Second, can limitations of the free party choice of law such as the infringement of public policy, the evasion of mandatory law or the lack of a substantial relationship with the chosen law be justified on economic grounds? In answering these questions the article ventures the hypothesis that the trend of convergence in choice of law can be explained with the help of economic theory.