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Kiyutin v. Russia : The European Court of Human Rights Acknowledges the Need for Protection of a Class of Individuals with HIV/AIDS
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The Function of Corporate Law and the Effects of Reincorporations in the U.S. and the EU
Get PDFIn the U.S., corporations can be incorporated in any of the fifty states and can“reincorporate” afterwards in any other state. However, the competence of the state where acompany is incorporated is limited: on the one hand, it is restricted by federal laws and, on theother hand, it regulates only the “internal affairs” of corporate activities. Consequently, in the U.S.reincorporations are a relatively easy task, because they only shift rules that address theshareholder—board relation, while creditors and other stakeholders are not affected.In the EU, we find a partially similar scenario. In the last decade, the European Court ofJustice has liberalized initial incorporations and in 2005 the cross-border directive opened thedoors to freedom of reincorporation from one Member State to another. In the EU, however,reincorporations have a much different impact than on the other side of the Atlantic, because theagency problems between shareholders and the board are bundled with the agency problemsbetween shareholders and creditors, all being in the competence of the Member State ofincorporation. In the EU, therefore, any change of the applicable corporate law risks jeopardizingcreditors. Sophisticated creditors will discount this risk from the credit rate or will protectthemselves through specific covenant, but unsophisticated creditors will bear entirely the risk ofopportunistic reincorporations. For this reason, many EU Member States provide mechanisms forcreditors’ protection in case of reincorporation, often by requiring the debtor to give a security or topay the debts that are not yet due. These mechanisms are aimed at avoiding negative externalities,yet they make reincorporations more expensive and will impede a certain number of efficienttransactions
Brüstle v. Greenpeace : The Court of Justice of the European Union Interprets the Term “Human Embryo” Widely, Restricting Member States’ Discretion To Pass National Patent Legislation for Biotechnological Inventions
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The False Promise of Decentralization in EU Cohesion Policy
Get PDFThe European Union (EU) is “going local” by taking decentralization of power seriously inorder to create greater effectiveness for European law and policy, especially with respect to itseconomic development or cohesion policy strategies. In this vein, the Treaty of Lisbon hasmodified the subsidiarity principle now including a “regional and local” dimension while offeringnew legal and political safeguards to protect subnational actors from the reach of EU law.However, in EU cohesion policy, cities, regions, and Länder in the different Member States are‘lumped together’ into a third-level Europe that does not differentiate among these subnationalactors. In addition, despite the attempt to connect Europe to its subnational level to enhance localautonomy and territorial cohesion, European courts do not always recognize the local level asindependent from their Member State. As a result, EU cohesion policies attempting to narrow thewelfare imbalances among European regions are not territorially attuned, flexible enough, orequipped with accountability mechanisms capable to address the development problems they aredesigned to solve.Scholars have shed light on the invisibility of local actors by proposing to strengthen their“input legitimacy” (process and participation) through greater representation before EU decisionmakingprocesses or European courts. By focusing on EU-wide procedures instead ofunderstanding how different legal and geographical factors characterize each territory, EU scholarshave refrained from addressing whether increasing decentralization is accomplishing the desireddevelopment goals and improving the “output legitimacy” (effectiveness of regulation) of EUinstitutions.1 This Article instead offers a “thick” description of EU cohesion policies aimed atcreating economic development and territorial cohesion by disbursing EU funding to the Europeanperipheries. Rather than assessing if these policies enhance local autonomy and decentralizationthrough EU-local cooperation, I demonstrate that often they foster centralization and produce newconflicts among heterogeneous subnational actors, Member States, and the EU. Through a texturedaccount of local power in Germany, Greece, and Italy, I suggest that a more contextualized andneeds-based approach to cohesion policies, which acknowledges territorial and socio-economicdisparities in each region, would anticipate and evade the shortcomings of current EU cohesionpolicy. This Article departs from notions of local autonomy and decentralization of power toimprove the “input legitimacy” of EU institutions by suggesting that the findings on cohesionpolicy—the need to pay greater attention to local heterogeneity and to create accountabilitymechanisms to monitor disbursement policies—are important lessons about local governance inthe EU that should “travel” to other regulatory areas
We’re Starting To Share Well with Others: Cross-Border Giving Lessons from the Court of Justice of the European Union
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The United States Court of International Trade in the Middle—International Tribunals: An Overview
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How Useful Is 28 U.S.C. § 1292(d)(1) in Preventing Protracted Litigation and Uncorrectable Harm to Litigants in Trade Remedies Cases?
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The Bell Atlantic Corp. v. Twombly Pleading Standard: Has Its Application Been Outcome Determinative in Court of International Trade Cases?
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