The manner in which the governing law of companies is determined has attracted much attention from academics and practitioners alike ever since the European Court of Justice began receiving references for preliminary rulings regarding the compatibility of protective conflict of corporate law norms with the EC Treaty provisions concerning freedom of establishment. Although recent developments have been less controversial than the ground-breaking judgment in Centros, they have not only consolidated the general thrust of liberalisation occasioned by the Court of Justice, but have added new dimensions to the regulatory landscape. These developments include amendments to the European constitutional order enshrined in the Lisbon Treaty, European legislation on cross-border mergers, the proposed statute for a European Private Company, the judgment of the Court of Justice in Cartesio and a Commission communication that contemplates the introduction of legislation on the governing law of companies. This book examines these recent developments and appraises the current law, as well as the foreseeable trajectory of the law, within a theoretical setting that addresses the socio-economic and legal-theoretical concerns associated with choices of the governing law of companies. In addition to considering the present and probable future state of EU law, the book also develops new theoretical perspectives and proposes novel solutions to long-standing dilemmas. In particular, it suggests that the use of information technology may render possible previously impossible compromises between party autonomy and the proper locus of prescriptive sovereignty.
1 Introduction 1.1 Aims 1.2 Scope 1.3 A History in Brief1.4 Are Conflicts of Corporate Laws Still Relevant? 1.5 Provisional Conclusions 2 The Principle of Party Autonomy 2.1 Introduction 2.2 A Global Movement Towards Party Autonomy? 2.3 Analogies with Contract Law 12.4 Economic Analyses of the Conflict of Corporate Laws 2.5 Conclusions 3 The Plural Aims of Conflict of Corporate Laws 3.1 Introduction 3.2 Targeted Protective Mechanisms 3.3 Enduring Divergence in Corporate Law, and Potential Exceptions in Private International Law 3.4 Conclusions4 Party Autonomy in European Law 4.1 Introduction 4.2 The Constitutional Treatment of Party Autonomy 4.3 The Origins and Purpose of Article 50 4.4 The Substantive Effects of Harmonisation on Party Autonomy 4.5 Supranational Business Vehicles 4.6 Conclusions 5 The Freedom of Establishment Judgments 5.1 Introduction 5.2 Centros et al in Context: the Treaty Provisions, the 1968 Convention and Daily Mail 5.3 The ECJ's Liberalising Judgments 5.4 Cartesio 5.5 The Present State of EU Law 5.6 Conclusions 6 Options for Future Development 6.1 Introduction 6.2 Option 1: the Status Quo 6.3 Option 2: the Status Quo Ante 6.4 Option 3: Unification or Supranationalisation of Corporate Law 6.5 Option 4: a New Regulatory Framework 6.6 Conclusions
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