Tort and whipped cream

Sunday, 01 December 2013
From cakes to conferences, sometimes a new spin on an old idea can provide a delicious new option, as Richard Frimston discovers after becoming a Fellow of the European Law Institute.

It was the Austrian writer Stefan Zweig who described the Viennese coffee house as ‘actually a sort of democratic club, open to everyone for the price of a cheap cup of coffee, where every guest can sit for hours with this little offering, to talk, write, play cards, receive post, and above all consume an unlimited number of newspapers and journals’. The Cafe Central in Vienna was one of his favourites.

The Sacher Torte was created by Franz Sacher for Prince von Metternich in 1832 (well deserved for the 59-year-old prince after his work on the Congress of Vienna). In the 20th century, however, this torte became the subject of a trade dispute in Vienna between Hotel Sacher and the Demel bakery. In 1938, Hotel Sacher began to sell Sacher Torte from carts under the name ‘The Original Sacher Torte’. After interruptions during the 1940s and 1950s, the hotel sued Demel in 1954, asserting its trademark rights, while Demel claimed it had bought the rights to the name.

The parties fought through the courts for seven years over many issues, including the torte’s recipe, whether there should be a second layer of jam in the middle of the torte and the use of margarine instead of butter. Settlement was reached in 1963, giving the Hotel Sacher the rights to the name ‘The Original Sacher Torte’ and the Demel bakery the right to use the name ‘Eduard-Sacher-Torte’.

The American Law Institute (ALI) was founded in 1923 and is the leading independent organisation in the US producing scholarly work to clarify, modernise, and otherwise improve the law. The institute, made up of 4,000 lawyers, judges and law professors, drafts, discusses, revises and publishes restatements of the law, model statutes and principles of law that are enormously influential in the courts and legislatures, as well as in legal scholarship and education. ALI has long been influential internationally and, in recent years, more of its work has become international in scope.

The newer European Law Institute (ELI) was founded in June 2011 as an independent organisation that seeks to contribute to the formation of a more vigorous European legal community, integrating the achievements of the various legal cultures, endorsing the value of comparative knowledge and taking a genuinely pan-European perspective. As such, its work covers all branches of the law: substantive and procedural, private and public. The institute has high ambitions and will study and stimulate European legal development in a global context.

To accomplish this, ELI operates on its own initiative. It is also, however, available for consultation with institutions involved in the development of law on a European, international or national level. As its perspective is not limited to the European experience, ELI is ready to seek cooperation with non-European or international organisations such as ALI or the International Institute for the Unification of Private Law.

I joined ELI as a Fellow this year, and STEP is an observer organisation. I was pleased to be able to attend the ELI annual Projects Conference and General Assembly, which took place in Vienna in early September. Lance Liebman, the Director of ALI, delivered the opening keynote address. He offered advice from the experience harnessed by this long-standing institution, while recognising ELI’s unique position as a unifier of diverse legal traditions and cultures.

Sir John Thomas, now the Lord Chief Justice of England and Wales, presented ELI’s Statement on the Common European Sales Law (CESL), which provided the European institutions with a set of concrete proposals for amendments, arranging them in a comprehensive format as a full redraft of the CESL to demonstrate how the proposal might work in context. Martin Schauer, professor of law at the University of Vienna, led the discussion of the institute’s engagement with the Commission’s proposal for an EU Regulation on the Statute for a European Foundation, on which I have previously written (STEP Journal, March 2012). Former MEP Diana Wallis was elected as the new President of ELI and succeeded Sir Francis Jacobs. A fascinating mix of European lawyers, academics and judges attended.

For anyone interested in the law in Europe, do consider joining as a Fellow. Come along. Smell the coffee. We can talk, play cards and argue about the real EU Sacher, with or without cream. Lecker. 

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Richard Frimston

Richard Frimston TEP is a Partner and Head of the Private Client team at Russell-Cooke LLP, and Chair of the STEP EU Committee.

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