Yearbook of Private International Law

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1 Yearbook of Private International Law Volume VIII (2006) Bearbeitet von Petar Sarcevic, Andrea Bonomi, Paul Volken, Swiss Institute of Comparative Law 1. Auflage Buch. XIV, 464 S. Hardcover ISBN Format (B x L): 16,5 x 24,5 cm Gewicht: 856 g Recht > Zivilrecht > Internationales Privatrecht Zu Inhaltsverzeichnis schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

2 YEARBOOK OF PRIVATE INTERNATIONAL LAW VOLUME VIII 2006 PETAR ŠARČEVIĆ Professor at the University of Rijeka EDITORS PAUL VOLKEN Professor at the University of Fribourg ANDREA BONOMI Professor at the University of Lausanne PUBLISHED IN ASSOCIATION WITH SWISS INSTITUTE OF COMPARATIVE LAW LAUSANNE, SWITZERLAND Sellier. European Law Publishers Stæmpfli Publishers Ltd. Berne

3 Sellier. European Law Publishers Stæmpfli Publishers Ltd. Berne ISBN ISBN Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar by Sellier. European Law Publishers GmbH, München, Stæmpfli Publishers Ltd., Berne, and Swiss Institute of Comparative Law. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist ohne Zustimmung des Verlages unzulässig und strafbar. Das gilt insbesondere für Vervielfältigungen, Übersetzungen, Mikroverfilmungen und die Einspeicherung und Verarbeitung in elektronischen Systemen. Herstellung: Karina Hack, München. Druck und Bindung: Pustet, Regensburg. Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany.

4 DOCTRINE THREE STEPS WITH PETAR ŠARČEVIĆ Alfred E. von OVERBECK * This brief note is about three institutions in which Petar Šarčević and I were active either at the same or different times. There were many other happy encounters with Petar and his wife Susan, for example, at their Embassy in Berne or at the Dubrovnik Inter-University Centre of Postgraduate Studies where they invited me to lecture. The Swiss Institute of Comparative Law 1 has to be mentioned first because this is where I met Petar Šarčević and we worked together and became good friends. From 1980 to 1990 I served as Director of the Institute, an autonomous institution of the Swiss Confederation which was opened to the public in At that time, Petar Šarčević was Professor at the Law Faculty of the University of Rijeka. As one of the first members of the scientific staff, he worked at the Institute part time in 1983, full time from October 1984 to October 1985, and again part time until September Thereafter he returned to Rijeka as Professor and Dean, became President of the University, then served as the first Ambassador of the Republic of Croatia in Washington, later as Ambassador in Berne and finally returned to academia as Professor again. Petar Šarčević was held in high esteem at the Institute for his personality, his outstanding legal qualifications and his knowledge of several languages. He enjoyed discussing his ideas and projects with the staff and visitors of the Institute. His wife Susan, Professor of legal German and legal English at the University of Rijeka, was exceptionally helpful throughout his entire career. She was also very useful to the Institute by revising English texts for publication. Both were very active in the social life of the Institute and made many friends. After their departure they kept close links with the Institute and returned regularly to work at the library or participate in colloquiums. Petar Šarčević played a major role in creating and publishing the present Yearbook of Private International Law, 2 while the English texts were revised by Mrs. Šarčević. * Professor Emeritus of the University of Fribourg; former Director of the Swiss Institute of Comparative Law. 1 See Loi fédérale sur l Institut suisse de droit comparé, of October 6, RS <>. 2 Vol. I-V, edited by P. ŠARČEVIĆ and P. VOLKEN, published by Kluwer Law International in association with the Swiss Institute of Comparative Law; Vol VI-VII, Yearbook of Private International Law, Volume 8 (2006), pp. 1-3 Sellier. European Law Publishers & Swiss Institute of Comparative Law Printed in Germany

5 Alfred E. von Overbeck Founded in 1893, The Hague Conference on Private International Law enjoyed some success before World War I, engaged in limited activities between the two wars, and then experienced a renaissance after A small Permanent Bureau was established and has overseen the drafting of thirty-seven conventions up to Petar Šarčević was very interested in the work of the Hague Conference and we discussed it many times. He became Delegate of Croatia in 1996 when the Conference drafted a Convention on the protection of children. 4 As President of The International Society of Family Law, he was very qualified to deal with these matters. This very successful Convention replaced a former Convention of 1960, 5 which I knew very well because I had participated in its drafting as a Secretary of the Permanent Bureau. In the nineties the Conference was very different from the one I knew when I began to work there in At that time, only continental European States, the United Kingdom and Japan were Members of the Conference. Most of the Delegates were outstanding specialists in the field and were quite free to propose solutions based on their expertise. Since then, the Membership has increased to 65 States (March 2006), making it more difficult to reach agreement. In addition, many Delegates are now bound by strict instructions from their Government. This, however, did not apply to Petar Šarčević. If he had not passed away, he would have played a major role in establishing a convention on unmarried couples, which the Conference plans to draft. He had studied this subject very thoroughly and was scheduled to lecture on Private International Law Aspects of Non-Marital Cohabitation at the Hague Academy of International Law in July The Institute of International Law, an Academy with a limited membership, deals with both public and private international law, the accent being on the former. 6 It is very renowned and for a long time was one of the few bodies interested in this field. Since 1945 it faces more competition as a result of the numerous governmental and non-governmental organisations which deal with different aspects of International Law and often have significantly greater human and financial resources. Nevertheless, cooptation to the Institute is still the ambition of many international lawyers. Candidates are first elected as an Associate and then promoted to a Member after a few years , edited by P. ŠARČEVIĆ, P. VOLKEN and A. BONOMI, published by Sellier European Law Publishers and Staempfli in association with the Swiss Institute of Comparative Law. 3 See the Proceedings Actes et Documents of each Session, <http://www.hcch. net>. 4 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children of October 19, 1996, which is in force in twelve States and has been signed by many more. 5 Convention Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants of October 5, See the Proceedings Annuaire de l Institut de Droit international: <http:// 2 Yearbook of Private International Law, Volume 8 (2006)

6 Three Steps With Petar Šarčević After being elected as an Associate at the 1997 Session in Strasbourg, Petar Šarčević became a Member in The Strasbourg Session was the last one I attended and it was a great satisfaction for me to see Petar elected. Having participated in the work of the Institute since 1957, first as a Secrétaire rédacteur, then as Associate and Member, I had witnessed a slow change in the atmosphere of the meetings. Whereas most Associates and Members used to stay for the entire two weeks, many accompanied by their wife and children, today people have less time, tend to come alone and attend only part of the Session despite modern means of travel and communication. Petar Šarčević participated in the work of the Institute of International Law with his usual enthusiasm and energy and soon became Rapporteur of the Commission on Registered Partnerships in Private International Law. The choice of such subject by the venerable Institute shows how greatly ideas have evolved since the fifties! Petar Šarčević put considerable effort and care into the drafting of his report. We discussed the substance several times and the best way of presenting it in order to achieve a majority for a Resolution. We had our last discussion in Lausanne in March Although already greatly affected by his illness, Petar was still optimistic and hoped to present his report in Cracow in August. Unfortunately this was not to be The foreword of the first volume of the Yearbook of Private International Law (1999) reminds us that a large number of national codifications and international conventions were adopted in the twentieth century. The principles and solutions in the field of Private International Law have been thoroughly revised. New problems will arise in this century, the age of globalisation. New solutions will have to be found, especially because of the increasingly intense contacts between very different civilisations and legal systems. Petar Šarčević, with his open, creative and inquisitive mind, would certainly have greatly contributed to resolving these problems had he not died prematurely. The internationalists will miss him, but even more so will the many friends of this likeable, cultivated man. Yearbook of Private International Law, Volume 8 (2006) 3


8 IS A CONFLICT RULE FOR LIVING WILLS AND EUTHANASIA NEEDED? Tito BALLARINO I. Introduction II. An Ethical Foundation for the Living Will III. Euthanasia in the Conflict of Laws IV. The Living Will in the Conflict of Laws: Domestic and International V. The Hague Convention of 2000 on the Protection of Adults Does Not Regulate Living Wills VI. A Proposal for the Living Will in Conflict of Laws VII. Conclusion I. Introduction A living will is a document by which a person makes provisions for health care decisions in the event that in the future he/she becomes unable to make those decisions. It is the popular name for one of the two main types of the so called advance directives. 1 The other type of advance directive is the durable power of attorney for health care, 2 a document in which an agent is designated to make health care decisions if the patient becomes temporarily or permanently unable to do so ( proxy directive in the American literature). The decision spelled out in the document must be very specific in character, such as the following examples: implying drug or tube feeding; surgery; resuscitation; cardiopulmonary resuscitation (CPR); ventilators when the patient becomes terminally ill, or unconscious and not likely to wake up, or has suffered a severe stroke in such a way that he/she is dependant on others for all daily functions. The real scope of an advance directive is to extend a person s absolute right to refuse medical treatment into circumstances where the ability to communicate is lost, or to agree in advance to such treatments disclosing clearly that person s feelings. An advance directive is a legal document insofar as it produces effects on the person s right to make decisions about his/her body and health, a right which is Professor of law, University of Padua and the Catholic University of Milan. This paper is dedicated to the memory of my dear friend and colleague Petar ŠARČEVIĆ ( ). 1 In this paper advance directive and living will will be used synonymously. 2 See <>. There is a third form too, which is sometimes separately available as well on the web: the do-not-resuscitate-order-form. Yearbook of Private International Law, Volume 8 (2006), pp Sellier. European Law Publishers & Swiss Institute of Comparative Law Printed in Germany