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Series: RWS-Skript, 279

Abstract

In decision no. 3 Ob 249/18s1 the Austrian Supreme Court (Oberster Gerichtshof, OGH) acknowledged a security right in a movable asset acquired abroad, although publicity requirements under Austrian law have not been observed before and after the movable asset crossed the Austrian border. Consequently, only the law of the country in which the movable asset is located upon the completion of the acquisition or loss shall be applicable to the acquisition or loss of a right in rem. Whether the transaction has been completed or not, is determined by the lex causae. No subsequent change in the applicable law occurs in relation to this question.

The decision is analysed in this paper in the context of the former jurisprudence of the Austrian Supreme Court, which has been overturned by the present decision, and the positions published to date in legal literature. In addition, this paper provides an overview including aspects relating to EU law, the debate regarding overriding mandatory rules and fraus legis.

Footnotes

1

OGH [2019] 3 Ob 249/18s.

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Abstract

Recurrent difficulties are delaying what for the time being are still modest applications of blockchain. This paper identifies what value this new technology adds to the contractual and property processes, exploring its potential and analyzing the main difficulties it is facing. Paying particular attention to the distinction between contract (personal or in personam) rights and property (real or in rem) rights, it first examines the difficulties for trading contract rights through blockchain-based applications, mainly those to complete contracts ex ante without relying on third-party enforcers. Second, it explores the difficulties faced by blockchain to enable trade in property rights.