1,721,103 research outputs found
The Illusion of Motion: Corporate (Im)Mobility and the Failed Promise of Centros
Full text linkThe European Court of Justice’s landmark decision in Centros was heralded as creating the preconditions for a vibrant market for incorporations in the EU. In practice, however, today’s corporate landscape in Europe differs little from that of the late 1990s. Very few large companies have made use of their ability to subject themselves to the company law of a Member State in which they are not also headquartered, and there are few signs suggesting that a ‘European Delaware’ will emerge in the near future. To the extent that Member States have engaged in competitive law-making, this has largely been confined to minimum capital requirements and rules affecting the ease of the incorporation process—areas concerning primarily micro-companies. We argue that the modest effect of Centros is not only a function of limited economic incentives to engage in regulatory competition and regulatory arbitrage, but also of the fact that the applicability of large sections of relevant laws governing corporate behaviour is determined by real seat-like connecting factors which render regulatory arbitrage more difficult. We analyse the boundaries between the lex societatis and neighbouring legal areas, notably insolvency and tort law, and find that the body of rules regulating a company’s outward-facing activities, as opposed to its internal affairs, is largely removed from regulatory arbitrage. It therefore seems likely that the potential benefits of selecting the applicable company law, while remaining subject to a cocktail of other, equally relevant rules, are sufficiently small to be regularly outweighed by the costs of a complex and non-standard corporate structure that is necessary to exercise free movement rights
Asymmetric cross-citations in private law : an empirical study of 28 Supreme Courts in the EU
Full text linkRecent years have seen a growing volume of research on citations between courts from different countries. This article fills a gap in the current literature by presenting and analysing cross-citations between the highest domestic courts responsible for matters of private law in the EU from 2000 to 2018. It addresses two main questions: first, to what extent do judges cite foreign case law in their decisions? Second, what may explain the varying levels of engagement of supreme courts with foreign case law? Our findings offer a mixed result as to the nature and frequency of such cross-citations. Overall, we identify 2,984 cross-citations; yet, only in few instances do we find a reciprocal relationship between the supreme courts of two countries, while more generally an asymmetric picture emerges. The article also discusses whether problems with the ease of access to court decisions may partly be responsible for limitations in the use of cross-citations
Why do businesses incorporate in other EU Member States? An empirical analysis of the role of conflict of laws rules
Full text linkResearch in law, political science and economics has taken a strong interest in the way companies strategically incorporate in foreign jurisdictions. However, the empirical research about corporate mobility in the EU has so far been limited in two respects: it has focused on the analysis of foreign companies in the UK and it has mainly been concerned with differences in the costs of incorporation such as minimum capital requirements. This paper aims to fill these gaps. It is the first paper that presents data on incorporations of foreign businesses in the commercial registers of each EU Member State. It is also the first one to assess the impact of differences in the conflict of laws rules applicable to companies as they reflect the case law of the Court of Justice on the freedom of establishment. It finds that countries which have a clear-cut version of the ‘incorporation theory’ attract more incorporations than countries which have retained elements of the ‘real seat theory’. The paper also discusses the policy implications from these findings for EU harmonisation in this field
A rule-based analysis and comparison of the case Studies
Full text linkDrawing on data derived from ten hypothetical case studies, we adopt a rule-based comparative evaluation of the company laws of twelve different jurisdictions. The ten case studies examine topics relating to directors’ duties and liabilities generally and in the context of takeovers, the protection of creditors, including the relationship between creditors and a company, and the law governing shares, shareholders’ rights and protection and the flexibility of company law. Each of the corporate law issues raised by the ten case studies are addressed by national reporters appointed in respect of the US (Delaware), UK, Germany, France, the Netherlands, Italy, Spain, Poland, Finland, Latvia, South Africa and Japan. This chapter compares and contrasts the formal company law rules recognised by each of these twelve countries as applicable in respect of the ten case studies, as well as the effects and consequences of the application of those rules. The value in the comparative assessment of the form and function of the relevant company law rules in each of the twelve jurisdictions under review lies in the additional light they can cast on four of the most enduring debates in comparative company law. These concern the propositions that:(i) the pressures exerted by the increased pace of globalisation, international competition, interest groups, and imitation will inevitably lead to the convergence of company law rules (in terms of form or function) across all jurisdictions in the world, and in particular, assimilation to the US model of corporate law and governance (“the convergence proposition”); (ii) the patterns and structures of shareholder ownership (dispersed/outsider v concentrated/insider) of public joint stock companies in a country's main stock exchange will influence the nature and strength of the shareholder protection rules applicable in that country (“the patterns of share ownership proposition”);(iii) countries have a preference for a shareholder primacy model of corporate governance over that of a stakeholder or director primacy framework (“shareholder primacy proposition”); and(iv) the civilian legal origin of a country will influence its company law rules to such an extent that it will be inferior to a country that has its origins in the common law with regard to the level of (a) investor protection, (b) financial development, (c) access to finance, (d) government ownership and regulation, (e) security of property rights and (f) contract enforcement (“the legal origins proposition”)..In this chapter, the authors seek to demonstrate what a careful analysis of the form and function of each of the legal rules operative in the twelve jurisdictions can reveal about the strength of each of these propositions. The conclusions are drawn that there is a lack of evidence for the legal origins, patterns of share ownership, and convergence propositions, but some available for the shareholder primacy one. The broader economic and legal policy implications of these findings are subsequently examined and conclusions drawn.<br/
Cross-border reincorporations in the European Union: the case for comprehensive harmonisation
Full text linkDespite recent decisions of the Court of Justice that liberalise inbound and outbound reincorporations, several Member States still prohibit these transactions or make them impossible or impractical. Even where reincorporations are available in principle, significant legal uncertainties often exist due to a lack of clear and interoperable rules. This situation may, for instance, jeopardise the interests of creditors and minority shareholders of the emigrating companies in circumstances where the involved jurisdictions do not provide for an explicit regulation of cross-border reincorporations aimed at protecting these stakeholders. Furthermore, when procedural rules are unclear or lacking, companies might be struck from the relevant register of the country of origin without being entered in the register of any other Member States. We argue that, as a consequence, harmonisation of the reincorporation process is necessary, and that it is desirable to reach a high minimum standard of creditor and minority shareholder protection
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