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European Review of Private Law, Volume 16, Number 2, 2008

SABRINA PRADUROUX, The European Convention on Human Rights and Environmental Nuisances, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 269-281.

Abstract: In as much as environmental nuisances caused by industrial activities can have adverse effects on both the economic and the amenity value of an area, from the European Convention on Human Rights perspective they can be seen to interfere with either the right of property or the right to respect for private and family life. The current case law of the Strasbourg Court shows the Court’s preference for applying Article 8, which protects the right to respect for private and family life, and which affords, especially from the procedural point of view, a less far-reaching protection than Article 1 of Protocol No. 1, concerning the right of property.

Liesbeth Enneking, The Common Denominator of the Trafigura Case, Foreign Direct Liability Cases and the Rome II Regulation, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 283-312.
Abstract: As part of a current trend towards so-called ‘foreign direct liability cases’, attempts are being made to hold parent companies of multinational corporations liable in their home countries for damage caused in host countries. This trend, of which the Trafigura case serves as a recent example here, suggests that tort law may have a regulatory part to play when it comes to the transboundary activities of multinational corporations. However, the extent to which tort law can act as a regulatory mechanism is dependent on its applicability, which, in turn, is determined by private international law.
The recently adopted Rome II Regulation, which lays down conflict-of-law rules for non-contractual obligations, will only have a limited conducive effect on the feasibility of the regulation through tort law of the transboundary activities of multinational corporations. On the basis of this Regulation, it is only in cases where the resulting damage consists of environmental damage that home country tort law may be applicable. In all other cases, attempts to hold the parent company of the multinational corporation liable for damage caused in the host country will have to be based on the tort law of the host country.
This effectively diminishes the feasibility of home country tort law as a mechanism for the regulation of the transboundary activities of multinational corporations.

Petra Joanna Pipková, Gutgläubiger Eigentumserwerb als gesetzliches Limit des verfassungsrechtlich gewährleisteten Rechts auf Eigentum, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 313-321
Summary:
Abstract: This contribution deals with the always current topic of good faith acquisition of property. The common Czech private law still applies the old roman principle Nemo plus iuris ad alium transfere potest quam ipse habet. It was introduced into the Czech civil act in 1964 for reasons of protection of the right to property protected and guaranteed by the constitutional law. Later on, the needs of the market were acknowledged and good faith acquisition was introduced in the domain of sale of goods in B2B relations. The common courts had a problem with the recognition of this rule (especially, because some of the cases concerned the acquisition of stolen cars). For that reason, the Constitutional court was several times submitted to decide about the accordance of the good faith acquisition with the fundamental right to property. The Court created a construction of conditions and requirements on the good faith of the acquirer and the proof of it. The Court measures the accordance on a general rule of limitation by law of the fundamental rights which requires the preservation of the substance and purpose of the right and forbids the abuse of the limitating law. The decisions touch the purpose of the limitation – good faith acquisition and interests of the market – but never examine the proportionality of the purpose to the limitation of the fundamental right to property.

Dmitry A. Pentsov, La loi de la Fédération de Russie relative aux biens culturels deplaces en URSS dans le cadre de la Seconde guerre mondiale, European Review of Private Law, vol. 16, nr. 2, 2008,  pp. 323-332
Summary:
Abstracts: The issue of the future of thousands of cultural property objects moved to the USSR as a result of the Second World War as a compensation for the destruction of the soviet cultural patrimony during the war and their eventual restitution has become to be openly discussed between the USSR (now, the Russian Federation) and the Federal Republic of Germany in the beginning of the 90s within the framework of the policy of glasnost (the ‘openness’). The fate of the recent Russian federal law ‘On the cultural property moved to the USSR as a result of the Second World War and located in the territory of the Russian Federation’ clearly illustrates the magnitude and the contradictions of this debate on the international level, as well as within Russian governmental circles and the Russian society at large. The purpose of this article is to provide a general overview of this recent Russian law on the displaced cultural property. First, the article presents the basic concepts of the law. Second, it examines the issue of ownership to these cultural property objects and their eventual restitution, notably the restitution at the request of private individuals and the restitution of family relics.

Konstantinos Kerameus, Comments on Form and Function of Legal Precedents, European Review of Private Law, vol. 16, nr. 2, 2008,  pp. 333-337

Stefan Geiger, Constantin Kruse, House of Lords 3 May 2006, Barker v. Corus Neue Impulse für das Europäische Deliktsrecht vom House of Lords, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 339-351
Summary:
Abstract: With Barker v. Corus, the House of Lords has given fresh impetus to European Tort Law. After having affirmed liability in cases of alternative liability in Fairchild v. Glenhaven Funeral Services and Others, it has now engaged with the concept of liability due to mere probability. Thus, the importance of the dogma of causation and of the dogma of the injured person’s established right for compensation has decreased considerably. The consequences for the law of liability and for the insurance industry are unforeseeable.

Michael Milo, ECHR 30 August 2007, Pye v. United Kingdom: A Technical Retreat from Private (Property) Law, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 353-361
Summary:
Abstract: The Grand Chamber of the European Court of Human Rights has judged on 30 August 2007, in a ten to seven majority opinion, that the arrangements regarding adverse possession under the law of England and Wales is in conformity with Article 1 First Protocol to the European Convention on Human Rights (Art. 1 FP). This decision reversed the chamber decision on Pye v. UK of 15 November 2005. The Grand Chamber decision is an important decision, for two reasons. The decision makes clear that national arrangements of private (property) law are fundamentally subject to a constitutional review by the ECHR. But the decision also makes clear that the Court – at least for the moment, and according to the majority opinion – will be reticent in exercising this power. While the result is positive for private property law, the court’s reasoning may be subject to critique.

Han Van Manen, Prof. Dr. Marcus Lutter e.a. Legal Capital in Europe – European Company and Financial Law Review Special Volume 1, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 363-364.

Mike Wienbracke, Wolff, Josef, Trust, Fiducia und fiduziarische Treuhand (zugl.Diss. Universität Salzburg), Peter Lang Verlag, Frankfurt am Main 2005, S. 387, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 365-369

W.C.H Ervine, Willem H. Van Boom and Marco Loos (eds), Collective Enforcement of Consumer Law: Securing Compliance in Europe through Private Group Action and Public Authority Intervention, Europa Law Publishing, Groningen 2007 EUR 49, USD 80, European Review of Private Law, vol. 16, nr. 2, 2008,  pp. 371-373.

Anna Verena Lauber, Conference ‘CFR and Existing EC Contract Law’, Münster,10-11 December 2007, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 375-380.

Joan M. Rius Riu, IV International Congress ‘European Private Law Beyond the CFR’,Lleida, 25-26 October 2007, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 381-382.