Zuständigkeitsrechtlicher Schutz vor Kapitalanlegerklagen in den USA (Jurisdictional Protection Against Investor Claims in the USA)
July 01, 2010
Bibliography: Felix Mormann, Zuständigkeitsrechtlicher Schutz vor Kapitalanlegerklagen in den USA (Jurisdictional Protection Against Investor Claims in the USA), Munich: Sellier, European Law Publishers, 2010.
The United States of America and Germany have long enjoyed strong trade relations and close political ties. In a legal context, however, the two nations' relationship is not always as harmonious. American lawyers criticize Germany's rules of civil procedure as overly defendant-friendly. Their German counterparts' critique focuses on the U.S. judiciary's alleged excessive exercise of personal jurisdiction and the system's structural bias in favor of plaintiffs' interests. In an unprecedented act of legal protectionism, Germany recently enacted a new jurisdictional regime that grants German courts domestically and internationally exclusive jurisdiction over investor claims against German corporations.
This treatise challenges the underlying rationale of Germany's new jurisdictional regime as well as its prospects of practical success. To assess German corporations' alleged need for protection from the U.S. legal system, the author examines the traditional points of contention in the two nations' international legal relations in a comparative context - the courts' exercise of personal jurisdiction, the American and German rules of cost, the pretrial discovery, the role of the civil jury, and the class action.
To evaluate the practical relevance of Germany's claim to exclusive jurisdiction, the author analyzes the new regime in its context of international legal cooperation. Where applicable, the Lugano Convention and the European Union's Brussels-I Regulation take precedent and thus severely diminish the German jurisdictional regime's scope for international application. In proceedings before U.S. courts, Germany's claim to exclusive jurisdiction is unlikely to carry any weight, except under very special circumstances, such as for the doctrine of forum non conveniens or for certification of a class action, when there is little to no prospect that an eventual judgment will be enforced by German authorities.