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The International Dimensions of Law Lurger, Brigitta; Thiede, Thomas www.ssoar.info The International Dimensions of Law Lurger, Brigitta; Thiede, Thomas Veröffentlichungsversion / Published Version Monographie / monograph Empfohlene Zitierung / Suggested Citation: Lurger, B., & Thiede, T. (2016). The International Dimensions of Law. (3rd edition). Wien: Jan Sramek Verlag. https:// nbn-resolving.org/urn:nbn:de:0168-ssoar-67414-2 Nutzungsbedingungen: Terms of use: Dieser Text wird unter einer CC BY-NC-ND Lizenz This document is made available under a CC BY-NC-ND Licence (Namensnennung-Nicht-kommerziell-Keine Bearbeitung) zur (Attribution-Non Comercial-NoDerivatives). For more Information Verfügung gestellt. Nähere Auskünfte zu den CC-Lizenzen finden see: Sie hier: https://creativecommons.org/licenses/by-nc-nd/4.0 https://creativecommons.org/licenses/by-nc-nd/4.0/deed.de Brigitta Lurger • Thomas Thiede The International Dimensions of Law All rights, including translations, reserved. No part of this book shall be reproduced, sorted in a retrieval system or transmitted by any means, electronic, mechanical, photocopied, recorded, or otherwise, without the written consent of the publisher. Although every precaution has been taken in the preparation of this book, the publisher, editors and authors assume no responsibility for errors or omissions. Neither is any liability assumed for loss resulting from the use of the information contained herein. Typesetting: by the publisher Font: Arnhem Pro Printed by: Prime Rate Kft Printed on: Munken Premium Cream 90 g 1,5 vol Publishing and rights contact : < www.jan-sramek-verlag.at > ISBN 978-3-7097-0114-0 © Wien 2016, Jan Sramek Verlag KG Brigitta Lurger • Thomas Thiede The International Dimensions of Law 3rd Edition Preface Preface V Preface The internationalisation und Europeanisation of national law has pro- ceeded apace in recent decades. This development is, however, only rarely mirrored in the curricula of today’s law faculties. Whereas na- tional law is taught extensively and in great detail, the understanding of its links to supranational and European law is at times neglected. This textbook is essentially our suggestion on how students may be introduced to the broader sphere of law beyond national borders. Accordingly, the aim of the book is to help students understand that legal systems do not only exist in their own national context but also within and part of various supranational and European levels. We at- tempt to provide a clear account of International and European Public and Private Law as it ought to be covered in undergraduate and post- graduate courses. The authors intend the textbook to be used as teach- ing material in universities and other institutions throughout Europe and elsewhere in order to familiarise future generations with interna- tional and European law and to provide an analysis of the impact of supranational legal system and European law on the developments of national law. The overall structure of this textbook is as follows. After the first chapter, which deals with introductory matters, chapter 2 addresses the various problems arising in conflict of laws and uniform private law; questions of public international law, including its implementa- tion within national systems and the United Nations, are considered in chapter 3; chapter 4 examines questions relating to European law. Con- sistent with our aim, some topics have been excluded and the coverage is far from comprehensive. Indeed, there are many excellent textbooks on the individual topics covered here; of their rich contents our intro- duction can do no more than give a teaser. We are indebted to our colleagues and the students for providing food for thought in various discussions. We wish to express our sincere thanks to two fine colleagues, Marlene Brosch and Donna Stockenhuber, for taking on the task of discussing, proof-reading, indexing and cross- referencing earlier versions of the manuscript. Finally, we would like to Lurger • Thiede: The International Dimensions of Law ¶  VI Preface thank our publisher, Jan Sramek, for including this textbook in its third edition in his programme; the cooperation with him and his team was most enjoyable and highly professional. Graz/Wien, June 2016 Brigitta Lurger and Thomas Thiede Lurger • Thiede: The International Dimensions of Law  ¶ Table of Contents Table of Contents VII Table of Contents Preface ......................................................................................................... V Table of Contents ..................................................................................... VII Abbreviations ............................................................................................ XI Chapter 1 Introduction and Orientation ............................................................... 1 I. Public international law and private international law ..... 1 II. Sources of law ............................................................................... 4 III. Enforcement of rights and duties established by public and private international law ................................................... 5 IV. Where does European law fit in ? ............................................. 9 A. European organisations ...................................................... 9 B. European law versus EU law ............................................... 11 C. Primary European law ......................................................... 12 D. Secondary European law ..................................................... 15 E. The separate category of European law ........................... 18 V. Private international law ............................................................ 21 A. What constitutes a » conflict of laws « problem and when does it arise ? ....................................................... 21 B. The application of foreign law ........................................... 22 VI. Comparative law .......................................................................... 24 A. Comparative private law ...................................................... 25 B. The overall purpose of comparative law ......................... 26 C. Rules of European or international origin ..................... 28 VII. The law as a multi-level system ................................................ 31 Chapter 2 The International Dimensions of Private Law .................................. 37 I. Private international law ............................................................ 37 A. Introduction ........................................................................... 37 Lurger • Thiede: The International Dimensions of Law ¶ VIII Table of Contents B. The foreign element ............................................................. 39 C. Forum shopping .................................................................... 41 D. Cross-border contracts ........................................................ 43 E. Connecting factors ............................................................... 49 F. Cross-border consumer contracts .................................... 53 G. Cross-border delicts ............................................................. 57 1. International jurisdiction ............................................. 58 2. Choice-of-law rules ........................................................ 60 H. Cross-border road traffic accidents .................................. 61 1. International jurisdiction ............................................. 61 2. Choice-of-law rules ........................................................ 63 II. Comparative private law ............................................................ 69 A. Ascertaining the contents of foreign private law rules 69 B. Legal families ......................................................................... 70 C. Interpretation of choice-of-law rules ............................... 72 D. Uniform law and its interpretation .................................. 72 E. Other purposes of comparative law .................................. 74 III. Uniform private law .................................................................... 75 A. Binding and non-binding sources of Uniform Private Law ........................................................ 75 B. The UNCITRAL Sales Convention ( CISG ) ....................... 76 1. Scope of application ...................................................... 77 2. Scope of application of the CISG ................................ 78 3. Rules for breach of contract ......................................... 79 Chapter 3 Public International Law ........................................................................ 85 I. Purposes and development of public international law .... 85 A. The historical development of public international law ................................................. 85 B. Alternative views of public international law ................. 87 II. Public international law and Austrian domestic law .......... 90 A. Customary public international law ................................ 92 B. International treaties ........................................................... 94 III. The United Nations and its organs ......................................... 96 A. Introduction ........................................................................... 96 B. Organs of the United Nations ............................................ 97 IV. The protection of peace and security ..................................... 103 Lurger • Thiede: The International Dimensions of Law  ¶ Table of
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