The treatment of shareholder loans in corporate insolvency is a controversial issue in many jurisdictions. On both sides of the Atlantic, lawmakers and courts have struggled to answer the question if and under what circumstances shareholder loans should be treated differently from loans granted by outsiders. In particular, the difficulties turn on three issues: (i) whether shareholder loans should rank pari passu with the claims of outside creditors or whether they should be subordinated; (ii) whether the repayment of shareholder loans should be subject to specific restrictions, particularly in the vicinity of insolvency; and (iii) whether specific restrictions should apply to secured shareholder loans.

The scope of judicial review of administrative decisions is one of the most important issues in administrative law. The question of the scope of judicial review is a typical problem of public law. Prior to the decision of an administrative law court, there is usually a decision of a public agency. In contrast to that, civil or criminal law cases begin without a state-run decision because these courts have to judge the behavior of private persons. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, the Supreme Court held that if it determines Congress has not addressed the question at issue, “the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation [emphasis added].” Summarized in a simple formula, one can say that civil and criminal courts decide, while administrative and constitutional courts control.

The Bundesverfassungsgericht (Federal Constitutional Court) is a constitutional body charged with the task of ensuring that all state institutions, i.e. the legislator as well as the judiciary and executive branches, obey the constitution of the Federal Republic of Germany. Its review standard is the Grundgesetz (Basic Law). Since its foundation in 1951, the Court has helped to secure respect and effectiveness for the free democratic constitutional order. The decisions have far-reaching repercussions, which becomes particularly clear when the Court declares a law unconstitutional. Given the large number of cases handed down every year – at present nearly 5,000 constitutional complaints come before the Federal Constitutional Court annually – it is nearly impossible to give a representative summary of the comprehensive case law. Therefore, the report will concentrate on a selection of four decisions that have drawn the most attention over the course of the years 2005 and 2006.

The question before the Court of First Instance concerned the legitimacy of the Commission's decision on a merger of two French companies incorporated under French law, Schneider Electric SA (hereafter Schneider SA) and Legrand SA (hereafter Legrand). On 16 February 2001 Schneider SA and Legrand, in accordance with the requirements on Regulation of mergers, notified the Commission of Schneider's proposal to make a public offer in respect to all the shares in Legrand held by the public. The judgment of the Court of First Instance can be considered an important step in the development of the European Commission's liability, particularly in respect to the Commission's liability in its role as watchdog of the common market. The judgment puts flesh on the skeletal set of existing principles concerning the liability of the European Community, and contributes to the creation of a systematic approach to the case law.

The insolvency of a company does not arrive suddenly. Normally, insolvency precedes a crisis. At present, the term “crisis” is defined in § 32 a sec. 1 of the Gesetz betreffend die Gesellschaften mit Beschränkter Haftung (GmbHG – Private Limited Companies Act) as the point when the company does not receive any credits according to the usual conditions in the particular market and when the shareholders provide the company with further shareholder capital instead of debt capital. Besides the rules governing shareholder capital substitution, which will be omitted due to the upcoming reform of private limited companies, there are few legal guidelines that regulate the standards of conduct for managing directors and shareholders in the case of a crisis. In particular, § 49 sec. 3 GmbHG needs to be singled out. This paragraph establishes an obligation to call a shareholder meeting if more than half of the capital stock is lost. If an adverse balance arises because of the payouts to the shareholders, the protections of §§ 30, 31 GmbHG will intervene. An adverse balance results when there is insufficient capital to cover the liabilities, ownership's equity, and guaranteed capital. However these protections often do not suffice.

A common language is indispensible for reaching and maintaining understanding in all inter-subject relations, including international relations. One element of today's common language in the field of international trade in goods is the Harmonized Commodity Description and Coding System (the Harmonized System/HS) which is maintained by the World Customs Organization (WCO). The HS provides for a common vocabulary by classifying all traded goods according to a nomenclature. This common vocabulary facilitates, and avoids misunderstandings in, communications about products. It thus reduces transaction costs and consequently is of eminent economic importance for today's globalized trade relations. Take for example WTO tariff negotiations with respect to chocolate: While one party might assume that the product commonly referred to as white chocolate is included in the negotiations on chocolate, the other trading partner might assume that it is excluded for the reason that it does not contain cocoa and thus does not qualify as chocolate. Reference during the negotiations to specific positions of the HS nomenclature reduces the probability of such misunderstandings. If during the exemplary tariff negotiations parties would refer to the HS heading Chocolate no party could later claim that the negotiated tariff should also apply to white chocolate since the HS classifies the product which is commonly referred to as white chocolate under the heading Sugar Confectionary (and there under a specific sub-position) whereas chocolate containing cocoa is classified under the heading Chocolate. The vocabulary of the Harmonized System is a point of reference for many legal norms which relate to international trade in goods – in my example the legal obligation to comply with the negotiated tariff concession (Art. II GATT) and not to discriminate against like products (Art. I, III GATT). While the HS provides the vocabulary, these norms provide the grammar of a common language of international trade.

The Federal Republic of Germany celebrated its fortieth birthday in 1989, and the sudden and unexpected accession of the former German Democratic Republic the following year has drawn the world's attention to the newly united nation. This article is the third installment in an effort to explain the basic features of the German constitution.

The movie The Lives of Others is not simply a voyage back in time. For many, it is an introduction to an entirely new world, albeit a world with troubling resonance for the so-called “War on Terror.” Director Florian Henckel von Donnersmarck peels back the iron curtain to expose the day-to-day lives of an unlikely assemblage of artists, spies and Apparatchiks in East Germany right before the regime fell. Several themes are presented: the emptiness of power perverts an ideology and those who should wield the public's trust; the goodwill of a cold-hearted, intrusive spy becomes the salvation of a reluctant revolutionary; a neighbor's desire for self-preservation costs a lover her life. This widely acclaimed movie underscores the fragility and insecurity of normal life in East Germany and invites movie-watchers to reflect on the fragile quality of their present-day business, personal and social relationships.

Reporting on one year of the Bundesgerichtshof's (BGH – Federal Court of Justice) jurisprudence in criminal affairs is always a delicate matter. We have decided to limit ourselves to report on a variety of cases, which are reported in the official records of the BGH and edited by members of the Court. The Court's official journal, Entscheidungen des Bundesgerichtshofs in Strafsachen (BGHSt), gives a fair mixture of decisions, which the judges themselves consider important enough to be included therein. However, the triage of decisions found there entails but a small portion of the BGH's work, chosen case-by-case without taking heed of producing a representative share. In order to come to a reasonable number of decisions to include in this report we had to leave aside several decisions notwithstanding their importance. We abstain from reporting on the case of El Motassadeq, who was charged with abetting in murder in 3066 cases in connection with the 9/11-attacks in the USA and was acquitted for lack of evidence. This case has been reported extensively elsewhere. We also desist from reporting on the Gartenschläger case, which deals with a special incident at the former German-German boarder. A survey of recent decisions of the BGH in the context of the former East-German regime was included in last year's report to the Annual for German and European Law (AGEL).

The future of an effective climate regime, post-2012, depends on three nations—China, India, and the United States of America. While a deadlock persists when it comes to the question of accepting binding international legal obligations for targeted reduction of greenhouse gas (GHG) emissions, all three countries favor action to address climate change. Nationally, each country is exploring a range of policy and legislative options to retard carbon emissions, especially by promoting alternative energy options and energy efficiency.

On 23 July 2008, the President of the French Republic promulgated – two days after the final vote of the two chambers of Parliament sitting jointly in Congrès (Congress) – the constitutional revision bill “de modernisation des institutions de la Vème République” (of modernization of the institutions of the Fifth Republic) n° 2008–724. The bill was mainly based on the research work done by a comité des sages (expert committee) “de réflexion et de proposition sur la modernisation et le rééquilibrage des institutions de la Vème République” (for the reflection and the proposition on the modernization and rebalancing of the institutions of the Fifth Republic). It had been presented by the Government to Parliament on 23 April 2008 and twice voted for by the Assemblée Nationale (National Assembly) and the Sénat (Senate).

In April 2006, the Wilhelm Merton Centre for European Integration and International Economic Order of Johann Wolfgang Goethe University, Frankfurt organised a symposium in celebration of the 40th anniversary of the Convention on the Settlement of Investment Disputes (ICSID). At the symposium, young and up-and-coming scholars, together with experienced experts from both the profession and academia, discussed a broad range of issues relating to investment protection before a substantial audience. Frankfurt is also home to the Frankfurt International Arbitration Center (FIAC), founded in 2005 as a joint venture between the Frankfurt Chamber of Commerce and Industry (Frankfurt CCI) and the Deutsche Institution für Schiedsgerichtsbarkeit (DIS). Under an agreement between ICSID and DIS, the FIAC serves as a cooperation facility for ICSID arbitrations. It is one of only two cooperation facilities in Europe.

Globalization and the rules it generates confront legal scholarship with a number of intricate issues. One of these lies at the core of a hypothesis which has been debated for some time in the literature. According to this hypothesis, the legal vacuum left by nation states in the institutional organization of cross-border commerce has been filled by a variety of private governance mechanisms, with the result that regulatory responsibility has been taken over by private or hybrid actors. Testing this proposition requires analytical tools capable of discriminating between private ordering and public law-making. The private, or hybrid, governance regimes that would seem to be the hallmark of what is slowly emerging as global law are a Byzantine mixture of legal and social norms. Because of this, the foremost problem to be solved is that of deciding where to draw the line between legal and non-legal norms. Only if there are unequivocal criteria for distinguishing between law and non-law does it become possible to comprehend how hybrid regimes arise and evolve within the globalization process and, thus, to determine whether private actors have in fact assumed regulatory responsibility.