ATLAS Agora 2016

Schedule & Faculty

The 2016 Agora consists of methodology lectures, seminars and workshops and is complemented by a social program and off-campus excursions; detailed information is available below.

Three questions are to be answered when carrying out a comparative legal study:

  1. Why compare?
  2. What can be compared?
  3. How to compare?

This lecture is aimed at providing some guidelines for answering the third question.

In order to understand which steps a comparative legal study requires, the subsequent definition of comparative law will be used: "Comparison is a scholarly process in which specific 'objects' of at least two jurisdictions are set against each other in order to determine their similarities and differences, to explain the causes of the similarities and differences and to evaluate the solutions."

The following issues will be addressed: the usefulness of national reports (descriptive stage), the determination of similarities and differences (analytical stage), the discovery of the reasons that clarify the developments and that allow the classification of the solutions in those which are either similar or different (explanatory stage) and, finally, the assessment of the legal solutions presented and compared (evaluative stage) which parenthetically belongs to the most exciting steps in the comparative research process. In addition, the simultaneous and the successive method will be explained and discussed.

This lecture will present an example from tort law explaining how economists analyze a legal norm with the toolkit of economic theory. The aim is to understand whether a legal norm has the property of promoting socially beneficial results, for instance, whether it might reduce accidents or, in more general terms, whether it might for instance lead to a Pareto improvement. We will proceed in steps. The first step is to develop a thorough understanding of the legal norm. The second step is to ask for the rationale, the "ratio legis" of the norm. The third step is to represent the essential features of the norm in a formal model. The fourth step is to derive the societal consequences of the norm by using assumptions and conjectures of economic theory, especially of microeconomic theory. The fifth step is to ask whether the results thus obtained are robust when relaxing the assumptions and, if not, to find out how the results change.

This lecture intends to demonstrate how a legal research project changes when the topic is approached also from a socio-legal perspective. The first part will elaborate on a sociological concept of law. The second part will show how the research question is influenced by such a concept of law. Finally, the third part will introduce some empirical methods, which may be used by law researchers, and explain the extent to which these methods are distinct from what law researchers do anyway. The overall aim is to demonstrate that a socio-legal perspective may make a given research project more relevant, without leaving the disciplinary context of law. Examples for best practices are drawn from recently finished doctor dissertations in the field of international commercial contract law and dispute resolution.

Each 90-minute seminar will consist of a presentation and round of discussion.

Prof. Katharina Boele-Woelki

Party Autonomy in Litigation and Arbitration in View of the Hague Principles on Choice of Law in International Contracts

Prof. Dr. Katharina Boele-Woelki

This seminar focuses on party autonomy, more specifically on party autonomy in the context of the applicable law issue. This excludes choice of forum and arbitration clauses. Party autonomy is already present in a significant number of legal systems across legal traditions. It is based on sound explanations whether in terms of general freedom of contract, reasonable expectations of the parties' economic efficiency or the need to identify a neutral law between the parties.

The reason to address partyautonomy in the context of international commerical contracts excluding consumer contracts has been formed by the most recent instrument in the field of international contract law of the Hague Conference on Private International Law, namely the Hague Principles on Choice of Law in International Contracts which were finalised at the end of 2013. They constitute the most recent proposal/recommendation or model as to how we should approach the choice of the applicable law in international contracts. The Hague Principles address several aspects of a choice of law. For this lecture the question which laws may be chosen has been selected. In this context we will have a closer look at the choice of other law than national law.

In short: within the framework of the Hague Principles the following more specific questions are addressed: First, how do judges and arbitrators deal with a choice of law by the parties? Second, which laws may be chosen? And thirdly, should parties be allowed to designate non-State law as the law governing the contract?

Prof. Florian Faust

Examining the Contents of Contracts

Prof. Dr. Florian Faust

The freedom of contract is one of the key elements of private autonomy: People are allowed to arrange their private affairs by concluding contracts. They alone decide with whom and on which terms to enter into a contract. The freedom of contract does not only allow people to exercise their right of self-determination, but also promotes the economic welfare of society as a whole. Since goods are transferred by voluntary transactions, such transfers are supposed to take place only if they are to the mutual advantage of both parties and therefore increase the utility derived from the goods. Hence freedom of contract is essential to attain an efficient allocation of the available resources.

Why, then, do we find so many rules which aim at restricting the freedom of contract? The reason is twofold: First, the law has to ascertain that the conclusion of a contract really is based on a conscious, free and informed decision of the parties. Hence, for instance, the capacity of minors to enter into contracts has to be restricted, and it is doubtful whether someone who concludes a contract under the influence of a mistake or under duress ought to be bound by it. Second, a contract may have negative external effects on third parties or society as a whole. As the parties do not take these external effects into consideration when entering into the contract, judicial control is appropriate.

In our discussion, we will focus on factors which do not relate to the way a contract is concluded, but to the contract's content. Special emphasis shall be put on the control of standard terms.

Prof. Michael Fehling

Informational Privacy in Comparative Perspective

Prof. Dr. Michael Fehling

Given the ever-increasing introduction of technologies using the internet in all areas of life, privacy issues become more and more important in both academia and practice.

This lecture will analyze the different attitudes toward information privacy and data protection in Europe (focusing on common European and German national levels) and in the U.S. We will discuss the extent to which information privacy should be protected against measures by the state or between private parties. We will look not only at constitutional law but also at underlying social and political concepts. Additionally, we will consider issues of consumer protection and strategies of administrative law to deal with risk as both areas of the law provide further helpful suggestions about how to deal with privacy conflicts at hand.

The knowledge gathered in the area of law and economics, including behavioral economics, will be used to gain further insight into privacy issues. The ultimate goal is to strike a fair balance between interests in data protection and in the free flow of information and to identify suitable legal strategies.

Due to the limited time of such a lecture, it will be impossible to deal with all legal questions in detail. Therefore, the analysis will be carried out on a more abstract conceptual level. However, the comparative approach will show that a fair balance between data protection and free flow of information probably depends on the cultural and political background and the related legal traditions.

You will be provided with reading assignments to prepare the lecture.

Prof. Jasper Finke

The Ambivalences of Public International Law: the Autonomy of States vs. the Autonomy of Individuals

Prof. Dr. Jasper Finke

There has been much debate on the foundations of public international law over the last two decades. While traditionally the state has been the point of departure for systemizing and thinking about international law, an increasing number of scholars have focused on the individual and his rights and position within the international community. These fundamental disagreements about international law are reflected in the different ways in which the notion of sovereignty has been conceptualized. While more traditional approaches define sovereignty as the autonomy of states in relation to other states—an understanding reflected in the basic rule of non-intervention—more recent re-formulations of this concept focus on the relationship between states and their citizens. From this perspective, sovereignty is neither absolute, nor does it merely identify rights and obligations between states. Instead, sovereignty serves a certain purpose, which is to safeguard the rights of citizens and individuals—or their autonomy. These different concepts of sovereignty, even though deeply theoretical, have far-reaching practical implications as they will lead to different and contradicting answers for specific legal problem. In this lecture, we will address and discuss a variety of highly controversial cases, such as state immunity for war crimes or the right to secession in case of fundamental human rights violations, and trace the different ways of deciding these cases to the fundamental controversy of whether international law rests on the autonomy of states or the autonomy of the individual—a controversy which reflects the current ambivalences of public international law.

In an attempt to remedy the structural shortcomings of the European Economic and Monetary Union (EEMU) obviated by the series of crisis having rattled the Union for nearly ten years, the latter has started to establish a "Banking Union." In spite of having been estimated to be the Union's largest reform project since 1992, it has been implemented without any Treaty amendment. The Banking Union currently rests upon two pillars: a Single Supervisory Mechanism (SSM, operational since 2014) under the leadership of the European Central Bank and a Single Resolution Mechanism (SRM, since 2015) involving a newly established Resolution Board. A European Deposit Insurance System might add to these as a third pillar. The lecture provides an overview of the structural deficiencies of the EEMU and the potential of the SSM and SRM to mitigate an enduring crisis that has already started to threaten the euro as the common currency. An insight into their mechanisms including the complications of judicial redress will also be given. Considering the disputed compatibility of both the SSM and the SRM with primary law, we must raise the question as to whether what was dubbed the "creeping reform of the Union" is still within the limits imposed by the rule of law.

Dr. Kaya Köklü

The Freedom to Copy vs. Intellectual Property Laws

Dr. Kaya Köklü

The freedom to copy is an absolute precondition for competition. One might even say that competition is in fact copying. And laws that restrict the freedom to copy—like copyright, patent, design and trademark laws—restrict competition and hence require justification themselves.

It is nowadays almost common sense that intellectual property laws have begun to lean more towards private interests at the expense of public interests, mainly with regard to access and free competition. The consequence is that not only consumers but also major market players have taken the autonomy of simply breaking existing laws.

This seminar will discuss recent developments in this regard and provide food for thought to encourage a lively discussion on re-balancing the freedom to copy and intellectual property laws.

Prof. Paul Krell

Patient Autonomy and German Criminal Law

Prof. Dr. Paul Krell

Though there is no actual statutory offense concerning violations of patient autonomy, it is a widespread opinion that these violations can lead to criminal liability because they are punishable as assault. This is, however, a problematic point of view that has always been criticized. These aspects serve as a good example for several principles of German criminal law. On the contrary, there are statutory offenses that limit (patient) autonomy; the most obvious is the prohibition of physician-assisted suicide, which has recently been intensified. Both aspects collide when a patient wishes indirect active euthanasia or a highly risky, perhaps even experimental surgery.

Prof. Stefan Kröll

Party Autonomy in Arbitration and its Limitations

Prof. Dr. Stefan Kröll

Party autonomy is the "hallmark" of arbitration as a dispute resolution mechanism. The parties decide whether they submit to arbitration, which dispute they submit to arbitration, what type of arbitration they submit to and what law should govern their arbitration. Such freedom is, however, not unlimited. Certain disputes are not considered to be arbitrable at all; in other cases, the applicable law poses some limits on the parties' freedom to compose the tribunal in a way they want or to structure the arbitration proceedings as they like.

This seminar will discuss some of these limitations and their underlying rationale from the perspective of comparative law. Despite all harmonization reached over the years, in particular through the works of UNCITRAL, the various laws still differ to a considerable extent when it comes to defining the limits of party autonomy. The seminar will take the position adopted by the Model Law as the starting point and then look to the solution adopted in some Model Law jurisdictions as well as in other jurisdictions which play an important role in international arbitration such as the US or France. Inter alia the following issues will be treated:

  • Party autonomy in drafting the arbitration clause
  • Extending or limiting court control over the decision on the merits or the tribunal's jurisdiction
  • Relevance of mandatory rules of substantive law for the enforcement of the arbitration agreement
Prof. Jens Prütting

Patient Rights and Informed Consent Concerning Medical Intervention

Prof. Dr. Jens Prütting

Autonomy and law leads into a very important discussion concerning medical intervention. Following the German Supreme Court for Civil Law, every therapy with an invasive part is bodily harm and injury in law. Therefore, every medical intervention is prohibited, except in cases when informed consent has been given by a patient or an emergency situation presents itself. Accordingly, it is crucial to determine which elements and necessities have to be considered when informing a patient.

This seminar concerning medical Intervention and informed consent will offer a brief overview and show characteristics of the German legal system in this interesting field.

Prof. Anne Röthel

Autonomy, Love and Law

Prof. Dr. Anne Röthel

This seminar focuses on the relationship between two leading ideas of our time: autonomy as a leading legal idea on the one hand, and love as a leading social concept of intimate relationships on the other hand. We will explore how the love narrative has changed the social reality of intimate relationships and in how far these changes have modified the law of intimate relationships itself. Is the victory of the love narrative in line with the idea of self-determination and free will? Or is love – quite the contrary – a hindrance to 'real autonomy' that weakens the capacity of rational choice, that makes us blind and leads to over-confidence, domination, vulnerability, domestic violence, self-abandonment and economically not advisable decisions such as caring for one’s relatives? Should we therefore re-conceptualize the legal idea of autonomy in order to fully capture the human condition?

The aims of the seminar are twofold. First, we will explore selected topics of family law from a comparative perspective (i.e. agreements in intimate relationships, consequences of breakdown, domestic violence). Second, we will discuss different understandings and critiques of autonomy and their impact on (family) law (i.e. 'liberal', 'individualistic', 'feminist', 'relational').

Prof. Karsten Thorn

The Protection of SME in Private International Law

Prof. Dr. Karsten Thorn

Especially in contractual relationships it is widely accepted that structurally inferior parties need protection not only on the level of substantive law, but also with regard to conflict of laws and international jurisdiction. Examples are consumer contracts and employment contracts. In these cases, the professional / entrepreneur is the structurally superior party against whom protection is sought.

However, there is a growing understanding that also in B2B situations parties are not necessarily on a level playing field. In some cases, one might even refer to a structural imbalance between the parties. Possible examples are insurance contracts for small businesses, distribution relationships and contracts with sub-contractors.

The lecture is intended to analyze the legal reasoning for such protection using examples from different jurisdictions such as China, the European Union and the USA. The different methods to protect such parties (restrictions to the choice of law by the parties, specific objective choice of law rules, mandatory rules and specific jurisdiction rules) shall be presented. Finally, the evaluation of the status quo shall lead to a coherent approach to the protection of structurally inferior professionals which encompasses both, the conditions for such protection as well as the legal tools applied.

Prof. Karsten Schmidt

Autonomy of Shareholders versus Autonomy of Creditors in Distressed Corporations (Reflections on Corporate Restructuring)

Prof. Dr. Dr. h.c. mult. Karsten Schmidt

Corporate restructuring is, first and foremost, an affair of business and finance in distressed companies. The decision making, however, rests with the majorities of creditors and shareholders. Accordingly, the crucial question in legal policy and restructuring strategy aims at the proper allocation of the decision making authority between these groups of stakeholders.

We are delighted to welcome the former President of the European Court of Justice to deliver the 2016 keynote.

The workshops are the cornerstone of the Agora and offer participants a great opportunity to obtain individual feedback on their work. The Agora concept involves feedback from both peers and faculty.

Every participant will take part in one workshop where his/her paper will serve as the focus of discussion for a period of thirty minutes. We have endeavored to structure workshop groups of 3-4 along a broad general theme and to group participants together who have intersecting fields of interest.

In a group of three, A will present B's paper; B will present C's paper; and C will present A's paper. A period of approx. 45 minutes has been allotted for each paper.

The framework envisaged for the workshops is as follows:

  • Discussion is kicked off by the presenter, who is limited to a maximum of 10 minutes
  • This is followed by a group discussion, regulated by the workshop chair, to provide the author an opportunity to clarify (where pertinent) and to encourage a conversation between participants
  • The discussion ends with the tutor's comments on the paper

Workshop topics include:

  • Group 1 - Private/Commercial Law: Change of Circumstances / Change of Rules
  • Group 2 - Competition Law
  • Group 3 - Autonomy and Law
  • Group 4 - Creditor Protection
  • Group 5 - Human/Constitutional Rights
  • Group 6 - Judicial Power and Independence
  • Group 7 - Environmental Law

Exposés will be distributed only within individual workshop groups. Each group will receive a Dropbox link with the 3-4 papers.

Over the course of the two-week program, a few afternoons have been kept open so that participants can enjoy some free time and take advantage of extracurricular programming offered by the International Office. Free guided excursions will allow the Agora cohort to explore Hamburg, its museums and nearby sites of interest. Social events with local doctoral candidates will round out the program. More information about the following events can be found below in the detailed schedule:

  • Visit to the Hamburger Kunsthalle
  • Breakfast with Bucerius Doctoral Candidates
  • Guided Walking Tour of the Speicherstadt and HafenCity
  • BBQ with Bucerius Doctoral Candidates
  • Visit to the International Tribunal for the Law of the Sea

Detailed Schedule

Please note that minor changes are possible.

9:30 a.m. - 12:00 p.m.

Main Building of Bucerius Law School during the summer

On-Campus Event

Welcome Program
South Lounge (Südlounge) & Room 1.15

Get to know the other Agora participants over coffee and tea and take care of paperwork for your two-week stay on campus. We'll provide additional information about the academic components of the program as well as your public transportation tickets and a tour of campus!

Lunch Break

1:15 - 2:45 p.m.

Prof. Karsten Thorn

Seminar

The Protection of SME in Private International Law
Room 1.15

Prof. Dr. Karsten Thorn

3:00 - 3:45 p.m.

Library

Introduction to the Library

Martin Vorberg
Director, Hengeler Mueller Library

Meeting Point: Library Entrance

More information about the library can be found here.

9:30 - 11:00 a.m.

Prof. Hans-Bernd Schäfer

Methodology Lecture

Law and Economics
Room 1.15

Prof. Dr. Hans-Bernd Schäfer

11:15 a.m. - 12:45 p.m.

Prof. Paul Krell

Seminar

Patient Autonomy and German Criminal Law
Room 1.15

Prof. Dr. Paul Krell

Lunch Break

1:30 - 4:00 p.m.

Doctoral Workshop

Group 2
Competition Law

Room: 0.09

Dr. Alma Pekmezovic

Chair:
Dr. Alma Pekmezovic
Email

1:30 - 4:00 p.m.

Doctoral Workshop

Group 4
Creditor Protection

Room: 1.15

Dr. Johanna Croon-Gestefeld

Chair:
Dr. Johanna Croon
Email

4:30 - 6:00 p.m.

Hamburger Kunsthalle

Excursion

Visit to the Hamburger Kunsthalle

Meeting Point: 4:00 p.m. in the Rotunda (reception desk)

Following a multi-million euro renovation and grand reopening at the end of April, we are pleased to offer a guided tour of the Hamburger Kunsthalle, the largest art museum in Germany.

The Kunsthalle was built 1869 with two thirds of the project's funding coming from private donors. The permanent collection of the Kunsthalle offers a look at 700 years of art and enables visitors to navigate European art history from the Middle Ages through the present without ever setting foot outside.

Highlights of the collection include works by German Gothic painters Masters Bertram and Francke, 17th century pieces from the Dutch Golden Age (Rembrandt), fine examples of German Romanticism (P.O. Runge and C.D. Friedrich), Impressionism and Classic Modernism, as well as International Contemporary Art.

More information about the art museum and its collection can be found here.

11:15 a.m. - 12:45 p.m.

Dr. Kaya Köklü

Seminar

Autonomy vs. Intellectual Property Rights
Room 1.15

Dr. Kaya Köklü

Lunch Break

2:00 - 3:30 p.m.

Prof. Gralf-Peter Calliess

Methodology Lecture

Law & Society
Room 1.15

Prof. Dr. Gralf-Peter Calliess

9:30 - 11:00 a.m.

Strawberries

On-Campus Event

Breakfast with Bucerius Doctoral Candidates
South Lounge (Südlounge)

To kick off your Thursday morning, you are invited to breakfast in the South Lounge (Südlounge) with local doctoral candidates—we hope you'll join!

The menu will include fresh fruit, yogurt, bacon, scrambled eggs and rolls with cheese and cold cuts. Coffee, tea, juice (orange and apple) and water will also be served.

11:15 a.m. - 12:45 p.m.

Prof. Jörn Axel Kämmerer

Seminar

EU Banking Union
Room 1.15

Prof. Dr. Jörn Axel Kämmerer

Lunch Break

2:00 - 5:15 p.m.

Doctoral Workshop

Group 5
Human/Constitutional Rights

Room: 1.15

Dr. Gabriele Buchholtz

Chair:
Dr. Gabriele Buchholtz
Email

2:00 - 4:45 p.m.

Doctoral Workshop

Group 7
Environmental Law

Room: 0.01

Anika Klafki

Chair:
Anika Klafki
Email

9:00 - 10:30 a.m.

Prof. Katharina Boele-Woelki

Methodology Lecture

Comparative Law
Room 1.15

Prof. Dr. Katharina Boele-Woelki

11:15 a.m. - 12:45 p.m.

Prof. Jasper Finke

Seminar

The Ambivalences of Public International Law: the Autonomy of States vs. the Autonomy of Individuals
Room 1.15

Prof. Dr. Jasper Finke

Lunch Break

3:00 - 6:00 p.m.

Photo of Speicherstadt by I. Bölter, Hamburg Marketing GmbH, mediaserver.hamburg.de

Excursion

Guided Tour: Speicherstadt & HafenCity
Meeting Point: 2:30 p.m. in the Rotunda (reception desk)

The Speicherstadt ("warehouse city") was built from 1885 - 1888 as part of Hamburg's newly created free port. Situated directly between the historic Speicherstadt and the Elbe River is the new HafenCity. Covering an area of 155 hectares, the HafenCity is one of the most prominent city center development projects in Europe, which, once completed, will increase the size of Hamburg's city center by 40%. The tour will last about three hours and will end at the Rathaus (Town Hall). Learn more about the Speicherstadt here and more about the HafenCity here.

9:30 - 11:00 a.m.

Prof. Michael Fehling

Seminar

Informational Privacy in Comparative Perspective
Room 1.15

Prof. Dr. Michael Fehling

11:15 a.m. - 12:45 p.m.

Prof. Stefan Kröll

Seminar

Party Autonomy in Arbitration and its Limitations
Room 1.15

Prof. Dr. Stefan Kröll

Lunch Break

5:00 p.m.

BBQ

On-Campus Event

BBQ with Bucerius Doctoral Candidates
Courtyard

With any luck, we'll have a nice evening for kicking back and relaxing in the courtyard! Round out your second Monday on campus with a cold beer or glass of juice and enjoy something from the grill with local doctoral candidates.

The menu will include corn on the cob, veggie skewers, sausage (poultry and pork), rolls, and all the fixins' (lettuce, tomato, herb butter and mustard, potato salad, etc.)

10:00 a.m. - 12:00 p.m.

ITLOS

Excursion

Visit to the International Tribunal for the Law of the Sea
Meeting Point: 9:00 a.m. in the Rotunda (reception desk)

The International Tribunal for the Law of the Sea is an independent judicial body established by the United Nations Convention on the Law of the Sea to adjudicate disputes arising out of the interpretation and application of the Convention. The Tribunal is composed of 21 independent members. More about the ITLOS can be found here.

Lunch Break

2:00 - 5:15 p.m.

Doctoral Workshop

Group 3
Autonomy and Law

Room 1.15

Prof. Stefan Kröll

Chair:
Prof. Dr. Stefan Kröll
Email

9:30 - 11:00 a.m.

Prof. Jens Prütting

Seminar

Patient Rights and Informed Consent Concerning Medical Intervention
Room 1.15

Prof. Dr. Jens Prütting

11:30 a.m. - 1:00 p.m.

Prof. Anne Röthel

Seminar

Autonomy, Love and Law
Room 1.15

Prof. Dr. Anne Röthel

Lunch Break

2:00 - 5:15 p.m.

Doctoral Workshop

Group 1
Private/Commercial Law: Change of Circumstances / Change of Rules

Room: 0.09

Elena Dubovitskaya

Chair:
Elena Dubovitskaya
Email

2:00 - 4:45 p.m.

Doctoral Workshop

Group 6
Judicial Power and Independence

Room 1.15

Dr. Christian Ernst

Chair:
Dr. Christian Ernst
Email

9:30 a.m. - 11:00 a.m.

Prof. Florian Faust

Seminar

Examining the Contents of Contracts
Room 1.15

Prof. Dr. Florian Faust

11:15 a.m. - 12:45 p.m.

Prof. Karsten Schmidt

Seminar

Autonomy of Shareholders versus Autonomy of Creditors in Distressed Corporations (Reflections on Corporate Restructuring)
Room 1.15

Prof. Dr. Dr. h.c. mult. Karsten Schmidt

Lunch Break

6:00 p.m.

Vassilios Skouris

Keynote Address

Law and Language
Moot Court

Prof. Dr. Dr. h.c. mult. Vassilios Skouris

10:30 a.m. - 12:00 p.m.

Prof. Katharina Boele-Woelki

Seminar

Party Autonomy in Litigation and Arbitration in View of the Hague Principles on Choice of Law in International Contracts
Room 1.15

Prof. Dr. Katharina Boele-Woelki

12:15 - 2:00 p.m.

Sandwiches

On-Campus Event

Farewell Lunch
South Lounge (Südlounge)

To wrap up your stint in Hamburg, we'll gather one last time for a farwell lunch. The menu will include soup and ciabatta sandwiches.

Download Topics & Descriptions (PDF)
2016 ATLAS Agora: Topics
Download Program Schedule (PDF)
2016 ATLAS Agora: Schedule

"Participating in the Agora was the absolute highlight of my doctoral studies. The exchange with students from other countries proved incredibly valuable for me!"

Clara Lienicke
Bucerius Law School
Agora 2014 Participant

Clara Lienicke