Amidtst all the talk about Germany being the most popular country in the world in this week’s BBC polls and England wanting to be more like Germany, it’s kind of reassuring to read in the Evening Standard’s reports leading up to the big match an Saturday why England is so popular with Germans: “English private education is one of the big draws — Germans have become the largest non-Asian group in Britain’s independent schools, not least because of the school uniforms.” Yep, and football is a simple game; 22 men chase a ball for 90 minutes and at the end, the Germans always win. Gary Lineker is right. This time for sure.

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You may have noticed that there is a new “flattr” button on the website. If you “flattr” Dispute Resolution Germany, I will match the payment and donate the amount to amnesty international.

You may have noticed that there is a new “flattr” button on the website. If you “flattr” on Dispute Resolution Germany, I will match the payment and donate the amount to amnesty international.

The claims are related to Porsche’s failed attempt to take over Volkswagen in 2008. Some of the earlier actions were filed in Stuttgart, where Porsche is domiciled. They were then transferred to the district court (Landgericht) Braunschweig, as Volkswagen’s Wolfsburg headquarter is in its district. This was on the basis that securities claims should be heard by the court where the issuer is located, and the securities in question were Volkswagen shares.

Right now, however, the Braunschweig court is considering an application to transfer the matter to yet another court, as anti-trust issues may be of relevance. Hannover and Frankfurt are rumoured as the next destinations. Good thing that here in Germany, we have these wonderful autobahns and those wonderful Porsches to get from one court house to the next  - fast and in style.

P.S.: Professor Reimann states, on his website: “Please note: Prof. Reimann does not use email.” There are days on which I envy him.

Frankfurter Allgemeine champions plurality of opinion within the paper: Reinhard Müller in politics is happy to see that Google did not get away with the excuse that it was only the machine who did it, whereas legal correspondent Corrina Budras (“Überzogenes Feingefühl der Richter”) believes that the judges were too pussy-footy and Zeitgeist-ridden. The average internet user fully understands that search terms are the path to a result, but not the result itself, she says, and the court did over-react.

The predictions of additional search terms are generated automatically by a Google algorithm, based inter alia on the search terms entered by Google users. Google has been using the function since April 2009.

Google has been taken to court across the globe on this issue, winning in Italy in March 2013, and loosing in Japan in April 2013, for example. Today’s ruling appears to be the first one from a court of last instance. And if Google were not enough to get the matter into the headlines: Germany’s former first lady, Bettina Wulff, had commenced a similar action, which had been stayed, pending the outcome in today’s case. Bettina Wulff is seeking to stop the publication of autocomplete results linking her to search words such as “escort” or ” red light”. Her case had triggered a broad debate about the legal limits on the publication of search results.

The Court of Appeals (Oberlandesgericht) Köln had found, in the previous instance, in favour of Google. It did not attribute the “statements” generated by the autocomplete function to Google (“Den [...] Ergänzungssuchbegriffen ist nicht der Charakter eigenständiger inhaltlicher Aussagen der Suchmaschine bzw. deren Betreibers [...] beizumessen.”)

The Federal Supreme Court did not agree. Its line of arguments is as follows: The publication of predictions as a result of the autocomplete function constitutes a violation of personality rights (Persönlichkeitsrecht), if they imply a statement that is untrue. On the other hand, not every violation of personality rights by the search engine triggers Google’s liability. The autocomplete function per se is perfectly legal. The issue is the missing safeguard against the publication of results of a defamatory nature (“… dass sie keine hinreichenden Vorkehrungen getroffen hat, dass die von der Software generierten Suchvorschläge Rechte Dritter verletzen.”)

The Federal Supreme Court also does not find that there is a general duty to scrutinize the search results for potential infringements of third party rights prio to publication (“Der Betreiber einer Suchmaschine ist regelmäßig nicht verpflichtet, die [...] Suchergänzungsvorschläge vorab auf etwaige Rechtsverletzungen zu überprüfen.”)

This duty is only triggered if and when Google becomes aware of a violation of third party rights. In practice, Google will now have to investigate the defamatory or slanderous nature of suggested search terms if a cease and desist letter comes in, and will then have to take appropriate action.

Technically, the claimants’ right to request Google to cease and desist is based on Sec. 823, 1004 German Civil Code (BGB) and Art. 1, 2, Basic Law (Grundgesetz), that is, on a combination of civil law tort concepts, and the fundamental rights of human dignity and personal freedom. The Federal Supreme Court does weight the respective rights of claimants on the one hand and Google’s rights, which also enjoy constitutional protection, and on balance, finds in favour of the claimants. I refrain from a personal comment on the matter, since my firm acts for one of the parties involved.

The study by Lakshmi Balachandra comprised two experiments. The first compared simulated business negotiations conducted by MBA students that took place over a meal in restaurants to negotiations in conference rooms, without any food to eat. In the second, negotiations were conducted with or without a meal in a business conference room. The eaters created greater value than the non-eaters.

Eating out does, however, not increase the value created in a statistically significant way: Individuals who negotiated in restaurants created 12% greater profits and those who negotiated over food in a conference room created 11% greater profits, the study found.

Ms. Balachandra says that she will conduct further studies and refine her experiments. I have some ideas for hypotheses for her to test in future studies: the influence of the quality of food, and the impact of wine…

This first criminal action is now about to come to an end, at least at first instance. Before the Stuttgart District Court (Landgericht), the prosecution pleaded today, and asked for Härter to be handed a suspended sentence of one year. Härter and his defence team are scheduled to have their final say on May 17, 2013.

And once this trial is over, one way or the other, the next one, based on the allegations of market manipulation, is already lined up. This trial will involve not only Härter, but also the former CEO Wiedeking, and – if the usually well-informed Der SPIEGEL is to be believed, even members of the supervisory board, of whom Ferdinand Piech has already had his share of legal troubles. The claimants in the various civil actions are waiting in eager anticipation for this trail to start. With the expected delay of the civil litigation, if it is indeed transferred to yet another court, their chances of introducing into the damages claims evidence unearthed in the criminal action may increase.

Maths and statistics is a topic that I find, for my sins, fascinating, and “Math on Trial” will definitively be on my reading list.* Iudex non calculat must become a concept of the past, and the earlier, the better. In the United States, there are training programmes for law professors on empirical methods and empirical legal scholar programmes. I hope that this trend will find its way across the Atlantic rather sooner than later. But then, this development has taken its time over there as well: “For the rational study of the law the black letter man may be the man of the present, but the man of the future is the man of statistics and  of economics” - Oliver Wendell Holmes wrote in 1897.

Whenever I use fairly simple and straightforward decision tree analysis, I find that clients love it and connect to it far more easily than to standard forms of presenting legal analysis. However, I recall a case in a court of appeals (Oberlandesgericht) where I spent almost an hour explaining why an 50% chance of success on a legal issue followed by another 50% chance of success on a factual issue equals an overall probability of 25%, and not 50%….

In the interview, I was surprised to read that “[t]here is actually a mathematician called Laurence Tribe who argues that maths shouldn’t be brought into the court room.” I had always thought of Lawrence Tribe as a constitutional scholar and advocate. It turns out he is both – he gained an A.B. in Maths  before embarking on his legal career, and combined the fields for example in “Trial by Mathematics: Precision and Ritual in the Legal Process,” 84 Harvard Law Review 1329 (1971). But even the combined weight of Tribe being a mathematician and an eminent legal scholar does not persuade me that maths should be kept out of the court room – or the law school class room, for that matter.

* Recommended reading: Bernstein, Peter L. (1996). Against The Gods: The Remarkable Story of Risk. New York: John Wiley & Sons. ISBN 0-471-12104-5.