Ten Years of Tartu–Konstanz Co-operation: Joint Seminars on Private Law and Successfully Defended Doctoral Theses in the Faculty of Law of the University of Tartu
legal education; doctoral studies; private law; University of Tartu; University of Konstanz
The co-operation of the law faculties of the University of Tartu and University of Konstanz in organising joint seminars on private law from 2010–2020 is a remarkable success story. The presentations and research projects discussed at the seminars in the past ten years reflect well the challenges and opportunities of private-law research in Estonia in recent decades.
In 2021, thirty years will have passed since the re-independence of the Republic of Estonia, which brought about extensive reforms in both legislation and legal education. *1 The reorganisation of Estonian private law took place remarkably rapidly when one considers the possibilities for a small country that had just become independent. The laws in the field of private law that make up the Civil Code were developed and adopted in a relatively short span of time, between 1993 and 2002. *2 More profound scientific analysis and research in private law began after the enactment of new laws, once law studies had been completed by fresh flights of students who had acquired their legal education in the post-independence era. The problems of Estonian private law have been examined in more detail in doctoral theses defended at the University of Tartu *3 . Doctoral dissertations in particular involve studies in which scientifically substantiated solutions to questions of current Estonian law or legal history have been proposed. *4
In the development of Estonian law, and the content and form of legal education, the German legal tradition has played a major role. On the one hand, the remarkable influence of German law is rooted in historical traditions; on the other hand, co-operation with German legal and research institutions started soon after the restoration of independence in the development of new Estonian legislation. *5 Along with other German universities, the University of Konstanz became one of the most important co-operation partners of the University of Tartu, in a relationship that began much earlier, when the project of joint seminars of the faculties of law of the two universities was established. Namely, already in 2000, the universities of Tartu and Konstanz signed a partnership programme *6 agreement within the framework of which several professors and lecturers with both law faculties, as well as doctoral and master’s students, have made mutual study and research visits over the years. For example, among the current and former professors and doctoral students of the University of Tartu, long-term research at the University of Konstanz has been carried out by Urve Liin, Irene Kull, Merike Ristikivi, Janno Lahe, Kalev Saare, Eerik Kergandberg, Ene Andresen, Arsi Pavelts, Ragne Piir, Heili Püümann, and Liina Reisberg, with several others paying the partner institution shorter visits.
On the basis of good personal experiences of co-operation, Professor Paul Varul from the University of Tartu and Professor Rainer Hausmann from the University of Konstanz, nearly 15 years ago, came up with the idea of also starting to organise seminars on private law, involving postgraduate students from both universities. Over the years, professors Irene Kull, Merike Ristikivi, Marju Luts-Sootak, and Karin Sein too have been involved in organising seminars. The arrangers of the seminars on the part of the colleagues at the University of Konstanz have been professors Astrid Stadler, Michael Stürner, Matthias Armgardt, and Christoph Althammer.
The focus of this article is on the contribution of doctoral students of the Faculty of Law of the University of Tartu to the joint seminars, and on the format of the seminars for presenting the results of the research. The article also provides an overview of the doctoral theses defended by the alumni of the seminar series at the Faculty of Law of the University of Tartu.
2. Seminar format and presentations
Over the past decade, young researchers from the faculties of law in Tartu and Konstanz have given more than 200 presentations on their research at joint seminars. Approximately a dozen young people from each university have participated in each seminar. In total, 50 students from Tartu have participated in the joint seminars, with many doctoral students participating in several seminar events. Some students started to take part in seminars during their master’s studies, either as interested discussants or speakers, and many of them have continued their research as doctoral students. After defending their doctoral dissertation, many seminar alumni have started working as lecturers at the Faculty of Law and have remained involved with the seminar series as organisers, moderators, or speakers.
As a rule, the week-long Tartu–Konstanz joint seminars have included presentation days and working time at the library, supplemented with time to get acquainted with local sights. For each seminar, a topical issue or wider-relevance legal problem has been chosen as the main theme, with the intent being to address as many doctoral students as possible. In addition to the speakers, other interested participants among the doctoral students, the master’s students, and the lecturers have taken part in the discussion at the seminars.
The first Tartu–Konstanz joint doctoral seminar took place from 8–13 June 2010 in Tartu *7 . The second joint seminar took place in Konstanz, and since then the seminars have taken place by turns in Tartu and Konstanz.
The theme-based title of the first joint seminar was ‘Private Law Modernization in the Context of National Legal Systems’. The focus of the presentations was on the impact of EU consumer law (directives, principles of the acquis, and the 2008 proposal for a consumer‑rights directive) and the Draft Common Framework of Reference (DCFR) on Estonian and German private law, and the possibility of taking into account national legal developments. The presentations also analysed the most important institutes of modern consumer and business law in a comparative manner.
In preparation for the first seminar, a format was developed according to which the seminar presentations were prepared in co-operation among the students of the two universities. For the discussion of each narrower topic, a presentation was prepared by both Estonian and German students. In consultation with each other, they selected several issues they considered to be the most important in harmonising private law, co-ordinated the content of their presentations, and prepared a thorough analysis of the differences and similarities between Estonian and German law.
A similar seminar format, in which students from both universities contributed to discussing specific topics, was followed at the second joint seminar, which took place in Konstanz from 27 April–2 May 2011. The general theme of the seminar was ‘the weaker party’ as a changing concept in private law. The students’ presentations discussed the concept of the weaker party in procedural law, consumer law, and general contract law, as well as ways to protect the weaker party. The presentations examined unfair standard terms, the possibilities afforded by international and domestic procedural law, the protection of the weaker party in private international law, and the specific problems of lease and sale contracts.
After both universities had organised one seminar, the question arose as to whether such a joint seminar project could continue in the future and what the topics and format might be. Although no seminar took place in 2012, preparations were made for subsequent co‑operation. The third seminar was held, again in Tartu, from 16–20 June 2013, and its general‑topic title was ‘Commercial Transactions in Europe: Perspectives of Private Law and Private International Law’. Since 2013, the topics of the students’ presentations have not been fixed in advance; rather, a recommendation has been given to formulate the title of the presentation on the basis of the general topic of the seminar. The third seminar focused on the proposal published by the European Commission in 2011 on the Common European Sales Law (CESL *8 ). Thus, the links between the CESL and international sales law, European consumer law, private international law, and civil procedure law were examined. Also, Estonian and German private law were analysed in comparison with the CESL. Several presentations dealt specifically with issues of private international law.
The fourth seminar took place from 27 October–1 November 2014 in Konstanz on the topic ‘A New Approach to the Harmonization of Private Law in Europe? Lessons from the CESL and Future Challenges’. The lessons learned from the CESL, the European harmonised sales law as an attempt to harmonise EU contract law, were addressed in the presentations on filling gaps, the seller’s right to remedy and the buyer’s right to require performance, and the buyer’s right to require reimbursement of repair costs for defective goods under the CESL. Also, seminar presentations were devoted to the possibilities for harmonisation in various areas of private law, such as contract law (tenancy and provision of services of general interest), private international law (defining the law applicable to intellectual property and the distinction between property and non-contractual claims), and tort law (liability for unwanted pregnancies or births). The seminar also examined non-pecuniary damages under German law and the historical development of assignment. Several presentations provided a comparative analysis of private-law issues (laesio enormis in German and Austrian private law, suretyship in Estonian and Finnish law) and addressed new legal challenges related to digitisation (the digital embassy) and procedural-law issues (protection of individuals in insolvency proceedings and the links between civil and criminal proceedings).
The fifth seminar was held from 28 September–2 October 2015 in Tartu on the topic of the concept of unfairness in private law. The reports examined unfair commercial practices (unfair commercial practices in retail supply chains), unfair standard terms (unfair standard terms in English law, control of the content of standard terms in English law as compared to German law, the battle of terms in German and English law, applicable law and jurisdiction for claims by consumer associations for termination of application of unfair standard terms, and unfair standard terms in mobile-phone service contracts), judicial control of the content of contracts (the impact of judicial control on private law from Estonia in 1920–1934 and difficulties in performing the contract as a basis for amending the contract), use of standard terms in the IT procurement contracts, and private autonomy in concluding a contract in Italian law. Several presentations were focused on specific issues of private international law, such as joint ownership of intellectual property rights, law applicable to the FIS (Fédération Internationale De Ski) rules, and the law applicable to the European Company (Societas Europaea).
The sixth seminar was held in Konstanz from 5–10 December 2016 with the topic ‘Private Law in the Digital Age’ and focused on the issues of the relationship between information technology and law. In particular, the presentations examined the legal issues related to the 2015 proposal for an EU directive on the supply of digital content. Thus, the presentations examined claims for damages for non-performance of contracts for supply of digital content, the conclusion of a contract in the digital environment, the regulation of contracts for supply of digital content in English and German law, the regulation of contracts for digital content in the English Consumer Rights Act (2015), the protection of consumers in the provision of payment services by PayPal, remedies for consumers in relation to the concept of providing digital services against another counter-payment than money in the CESL, informed consent in digital service contracts on the example of 23andMe, legal regulation of blockchain technology, cloud services and safeguarding digital continuity, the attribution of personality rights to an autonomous artificial agent, the digital inheritance, the exhaustion of copyright in the digital age, and the impact of the digital age on employment relationships. Some of the presentations were devoted also to general topics such as corporate opportunities in corporate groups, usury in German law, and the concept of res judicata in German law.
The seventh seminar, which took place from 13–18 November 2017 in Tartu, was dedicated to comparative law under the general theme ‘Comparative Private Law and EU Law’. The main purpose of the seventh Tartu–Konstanz seminar was to discuss the importance and functions of comparative law and both its role among the various research methods and its relationship with EU law. Even if comprehensive comparative studies pave the way to legal harmonisation in constantly expanding spheres and the Court of Justice of the EU (CJEU) has developed sophisticated comparative methodology for filling lacunae and interpreting Union law, there are tendencies toward diminishing relevance of comparative law for the European project. Presentations in that seminar offered an opportunity for discussion, in the framework of very different legal fields, about the importance of comparative law, its challenges, and the future of the relationship between comparative law and European law.
The eighth joint seminar was held from 3–8 December 2018 in Konstanz with the general topic ‘Contract and Tort as Legal Institutions in Comparative Perspective’. The presentations discussed the illegal use of copyrighted content in language technology, the interaction between decisions related to banking supervision, the restriction of the participation of debtor-related persons in bankruptcy proceedings, joint and several liability of the joint owners, claims for breach of a shareholder’s voting obligations, producer development risks under the Product Liability Directive, protection of consumers’ collective interests under Estonian law, comparison of consumer protection in German and Brazilian law, the legal presumption of ownership by the possessor in EC case law, the law applicable to cross-border genetic research, the historical development of alternative causality, the legal regulation of smart contracts in Estonian law, the delimitation of contractual and non-contractual liability from a historical angle, the contract as an instrument for deviation from the principle of universal succession, and the role of the commercial courts in Germany.
The general topic of the ninth Tartu–Konstanz seminar, which took place from 1–7 December 2019 in Tartu, was ‘Persons and Personal Freedom in Private Law’. The presentations of the seminar participants examined persons and personal freedom from very different aspects. Thus, the papers discussed the extent to which digital development affects employment relationships (work 4.0) and the constitutionality of the minimum wage. The presentations also focused on consumer law, when examining the consumer’s right to withdraw from a contract (C-681/17), the legality of Amazon’s Dash Button, the class action for damages, and a means of access to justice in cases of class action waiver in US law. In the field of family law, presentations focused on freedom of marriage between the two world wars, the right of same-sex marriage, and the administration of joint property of spouses. Of the contractual relations, the introduction of rent control in Germany and the possibilities for controlling the amount of rent under Estonian law were examined. In the field of compensation for damage, the practice of compensation for non-pecuniary damage was examined from a comparative‑law point of view, as were the rules for taking into account the risks prior to the occurrence of damage in compensating for personal injury. In the field of data protection, the transparency of research and data protection, liability according to Article 82 of the General Data Protection Regulation, the concept of data embassies and digital identity, and standard terms regulating the use of data in contracts concluded with Estonian mobile-phone service providers were examined. The presentations also discussed international commercial tribunals, the jurisdiction of acts related to the single resolution mechanism, the regulation of termination under standard terms, changes in the functions of trademarks, contractual freedom in limiting the content of a surety agreement, and the importance of the right to own property. Issues of private international law were addressed in presentations examining changes to the choice of jurisdiction in relation to Brexit, the application of the Brussels I Regulation in determining the law applicable to the conclusion of a contract, and air‑passenger rights to compensation under EU law.
In response to the COVID-19 pandemic and the accompanying restrictions, the tenth‑anniversary seminar planned for 2020 has not been held. In spe, there will be an opportunity to gather again in 2022 in Konstanz for a joint seminar and discussion of doctoral students’ presentations.
The working language of the seminars has been English from the beginning. This has provided students from both universities with the opportunity to practise a foreign language. This seminar series has been the first forum for many doctoral students to give a presentation to specialists, present the results of their research, and receive in-depth feedback. It must be emphasised that there is always enough time in the seminar programme to discuss the presentations, so that the doctoral students can substantiate their views, listen to feedback, and develop a discussion. Seminars form part of doctoral studies; therefore, the opportunity for doctoral students to receive feedback on their theses and initial research results in the process of preparing a doctoral thesis has been considered. Over the years, the seminar format has brought in not only preparing and listening to presentations but also thorough ‘opposition’ of the seminar presentations by a fellow doctoral student, as a precondition for passing the respective subject. Thus, the joint seminars have become an additional forum for doctoral students from both universities, where they can address the validity of their views, the thoroughness of the analysis, the importance of their research questions, and the relevance of the methodology chosen.
The Tartu–Konstanz joint seminars are also an opportunity for the teaching staff. At each seminar, professors and lecturers from both participating universities have also given presentations. Professor Rainer Hausmann from the University of Konstanz; professors Paul Varul, Marju Luts-Sootak, and Irene Kull from the University of Tartu; and Supreme Court Judge Villu Kõve spoke at the first seminar in 2010. Rainer Hausmann provided critical analysis of regulations in the German Civil Code (BGB), Paul Varul spoke about the impact of harmonisation of private laws of the member states, Irene Kull introduced problems pertaining to legal transplants in Estonian law, and Marju Luts-Sootak gave an overview of the history of Estonian private law in the context of developments in European law. The principle of abstraction discussed in Villu Kõve’s presentation was also at the focus of the analysis in his doctoral dissertation *9 defended in 2009. Serving as the opponent of this doctoral dissertation was Professor Astrid Stadler from the University of Konstanz, who had studied this principle in her habilitation work *10 . At the following seminars, from the Estonian side, presentations were given by Irene Kull on the Common Frame of Reference, on the draft directive on the Common European Sales Law, and on the influence of digitalisation on private law and on judicial review of B2B contracts under Estonian law. Marju Luts-Sootak analysed the historical development of Estonian private law also at subsequent seminars. Karin Sein contributed to the seminars with presentations about Estonia as a test country for the Common European Sales Law, the consumers’ right to a printed bill under mobile-phone contracts, rules applicable to smart consumer goods in the Digital Single Market, and private autonomy under the new digital consumer contract law package. Piia Kalamees spoke about unfair contract terms in car‑leasing contracts under Estonian law, Helen Eenmaa-Dimitrieva about responsibility under corrective justice and a legitimate distributive system, Hent Kalmo about an evolutionary history of public policy exceptions in international economic law, Age Värv about comparative method in drafting unjustified-enrichment rules in Estonian law, Martin Ebers on a need to provide legal personhood for artificial intelligence, and Hesi Siimets-Gross about disconnection of politics from the history of law on the basis of the person’s status. From the University of Konstanz, the following presentations were provided: Astrid Stadler presented discussion about conflict-of-laws issues and the scope of application of the CESL and about the nature and future of collective redress. Matthias Armgardt presented comparison between Roman and European sales law and causation in law, and Doris Forster discussed methods in comparative law. Michael Stürner’s presentations were dedicated to migration of legal concepts and corporate social responsibility in private international law.
As the format of the co-operation described above requires travelling between Estonia and Germany, the Faculty of Law, the Dora Plus programme *11 , MIDOK Doctoral School in Economics and Innovation *12 , and the partnership programme of the universities of Tartu and Konstanz have provided very important support over the years both for conducting seminars in Tartu and for organising the mobility of doctoral students and professors.
3. PhD students and doctoral theses
The seminars have become a very important and highly valued opportunity for young researchers to experience international research co-operation. Many of the presentations made at the seminars have formed the subject of articles in Juridica International and other academic journals. As of today, 13 doctoral students who have participated in the joint seminars have successfully defended their theses, accounting for a quarter of all doctoral theses defended at the Faculty of Law of the University of Tartu over the last decade. *13 There are even more doctoral students among the alumni of the joint seminars whose dissertations are still being written and will be defended in the next five years.
In 2011, a doctoral thesis by Urmas Volens was defended. He analysed the issues of liability based on reliance interest *14 . In the same year, Signe Viimsalu defended her dissertation, on insolvency proceedings *15 . In the work defended in 2013, Age Värv examined the condiction of expenditures, i.e. the compensation for expenditures incurred for another person’s property *16 . Piia Kalamees defended her doctoral dissertation on the use of price reduction as a contractual legal remedy in the same year *17 . In his doctoral dissertation defended in 2016, Olavi-Jüri Luik examined the protection of policyholders in the Baltic States on the basis of the principles of EU insurance contracts *18 . In 2017, Arsi Pavelts defended his doctoral dissertation, in which he examined filing a claim for damages instead of specific performance in cases of a sales contract *19 . In her doctoral dissertation defended also in 2017, Dina Sõritsa analysed the claims made for compensation against health-care providers for damage caused by an unwanted pregnancy with or birth of a disabled child *20 . In 2019, two doctoral dissertations were defended: that of Mari Schihalejev, who studied the protection of creditors in a situation wherein a debtor-related creditor participates in insolvency proceedings *21 , and Ragne Piir, whose work focused on mandatory norms in Estonian and EU international contract law concerning consumers and posted workers *22 .
In addition, four doctoral theses on IT law have been defended in the last two years. Kärt Pormeister studied the processing of genetic data for research purposes *23 . Liliia Oprysk’s dissertation addressed reconciling the material and immaterial dissemination rights under the EU copyright acquis *24 . Taivo Liivak investigated liability for damage caused by the operation of self-driving vehicles *25 and the topic of recent dissertation presented by Anne Veerpalu was the treatment of distributed‑ledger technology by Estonian and EU legislators *26 .
Over the years, the joint seminars of Tartu and Konstanz have inspired many professors and students of the Faculty of Law. In addition to meaningful presentations at the seminars, the reciprocal visits have been a good opportunity to do individual-level library research, get acquainted with current legal issues in other countries, and find good friends and colleagues with whom close contacts have been maintained. At this point, we would like to thank everyone who has contributed to the seminars, not only in substance but also technically.
"The outlook for the future is also optimistic too – by the time this article is published, two more doctoral students who have participated in the seminar series will have submitted their doctoral dissertations. We also hope also that the project of joint seminars will not be bounded by the tenth‑anniversary issue but continue successfully for the next ten years.