Tue, Jan. 20, 2004

Expert Witness Liability in International Context

CK - Washington.   Wolfgang Hau, professor of law at Passau University in Bavaria, examines in his recent article Gerichtssachverständige in Fällen mit Auslandsbezug, 49 Recht der Internationalen Wirtschaft 822 et seq. (2002), the liability of court-appointed expert witnesses in international cases. Unlike other commentators, Hau appears to encourage courts to use foreign experts if the circumstances warrant. In the context of the German procedural rules, he explains the use of experts, which generally are appointed by the court and not by the parties, and then turns to a detailed analysis of international conflicts of laws rules that bear on the liability for expert opinions. He examines the power of the courts to make experts accept assignments, or, in the case of experts residing abroad, the lack of such power, as well as the use of experts in manners that potentially violate the sovereignty of other nations or avoid such violations.

Hau's analysis is in-depth and persusasively presented in a very readable manner. In light of the American trend to withdraw immunity from expert witnesses, his article is recommended in the German-American setting for lawyers who engage expert witnesses and for those taking on expert witness assignments on issues of law.

Bill To Facilitate Shareholder Suits

SW - Washington.   On January 19, 2004, the Federal Ministry of Justice (Bundesjustizministerium) proposed a new law to facilitate shareholder suits brought against the management board and the supervisory board of a corporation. The proposed law is designed to broaden minority rights of shareholders.

As prerequisite for a suit, a shareholder would need to have a minimum amount of shares of one percent of the basic capital or shares of an actual trading value of 100,000 Euro. The rights of shareholders in the general meeting, however, would be restricted. As a measure to prevent frivolous shareholder suits, claims for damages would have to be certified in an admission procedure in order to proceed to trial.

As as a balance to the extension of shareholder rights, the proposed law suggests to accord discretion to the management board as long as the business decision is made on an informed and diligent basis. Moreover, liability is restricted to gross negligence and intent. An example for a case when liability is not excluded is the event that a member of the management board of a bank publicly provides information about the creditworthiness of a client, and the bank, in consequence, is exposed to claims for damages.

The Federal Ministry of Justice is planning to go forward with the legislative project before the summer break.

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