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From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis

Part III The Impact of Freedom of Establishment on Private International Law for Insolvency, 7 The COMI and Forum Shopping »

From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis
7.01 One of the objectives of the Insolvency Regulation is to avoid incentives for debtors to transfer assets or judicial proceedings from one Member State to another in order to obtain a more favourable judgment. In these terms, recital 4 clearly speaks of forum shopping as a threat to the internal market. The question to be examined here is whether the transfer of the COMI from one Member State to another in order to benefit from the latter’s insolvency laws is permissible under the Regulation. 7.02 The intricacies of forum shopping are discussed at great length...

Contents »

From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis

Freedom of Establishment and Private International Law for Corporations »

Paschalis Paschalidis

General Editor’s Preface »

From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis

Part I Private International Law for Corporations, 2 The Incorporation and Real Seat Theories in Context »

From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis
2.01 Having examined the two prevailing choice of law theories concerning corporations, one may now assess these two theories in the legal framework in which they exist vis-à-vis rules on jurisdiction and substantive corporate law provisions. 2.02 International jurisdiction on civil and commercial matters is governed by Regulation 44/2001 (hereinafter ‘Brussels I regulation’).1 Article 22(2) confers exclusive jurisdiction on the courts of the seat for disputes concerning the validity of the constitution, the nullity or the dissolution of companies, or of the...

Index »

From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis

Part II The Impact of Freedom of Establishment on Private International Law for Corporations, 4 Letter-box Companies and the Doctrine of Abuse »

From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis
4.01 There is some indication that an anti-letter-box1 company policy has taken roots in European company law. In some instances several European institutions have made explicit their willingness to take action against letter-box companies. It appears that the pro-letter-box company considerations that led to the delivery of the judgment in the Centros and Inspire Art cases have been replaced by a more reserved approach towards letter-box companies. 4.02 The beginning of this new approach was marked by the strong opposition opposition of trade unions to the first...

List of Abbreviations »

From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis

Part I Private International Law for Corporations, 1 National Choice of Law for Corporations »

From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis
1.01 The theory of incorporation has prevailed in all common law jurisdictions and has gained some acceptance amongst civilian systems. In English law, the law of the place of incorporation has been traced back to eighteenth-century case law.1 Its predominance is uncontroversial.2 It is also followed in several key Commonwealth jurisdictions,3 as well as in the United States.4 It has also been adopted by some civilian systems, like the Netherlands,5 Switzerland,6 and Russia.7 1.02 According to this theory, ‘all matters concerning the constitution of a corporation...

Part II The Impact of Freedom of Establishment on Private International Law for Corporations, 3 The Normative Content of Freedom of Establishment »

From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis
3.01 The Treaty on the Functioning of the European Union1 (hereinafter ‘TFEU’) provides for the creation of a Single Market which shall be based primarily on four fundamental freedoms, among which is the freedom of establishment. Article 54 TFEU (ex Article 48 EC) provides for the right of establishment of corporations, other partnerships of civil and commercial law, and other legal persons established under private or public law, so long as they are not non-profit making, and confers upon them the same rights that natural persons enjoy under Article 49 TFEU (ex...

Preface »

From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis

Part III The Impact of Freedom of Establishment on Private International Law for Insolvency, 9 Reflections on the Intersection of Freedom of Establishment with Private International Law for Corporations »

From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis
9.01 This book has sought to sustain one main argument: freedom of establishment is not unlimited. Never before have companies enjoyed so many opportunities for crossing borders and creating establishments in other Member States at such a low cost. However, after a brief period of encouraging corporate mobility in Europe, the ECJ and other EU institutions have recently taken steps to demarcate the boundaries of freedom of establishment. 9.02 The refinement of the doctrine of abuse in relation to letter-box companies and the enactment of the Services Directive mark...

Part II The Impact of Freedom of Establishment on Private International Law for Corporations, 5 Regulatory Competition for Incorporations »

From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis
5.01 Regulatory competition is a term that has been used in US legal scholarship to describe the competition amongst States to attract incorporations of companies in their jurisdiction. Its origins can be traced to the beginning of the twentieth century when New Jersey was dominating the market of incorporations, until its Governor of the time, Woodrow Wilson, introduced legislation to restrict stock ownership and redefine the business trust.1 New Jersey’s popularity decreased and Delaware emerged in its place. It has since then dominated the market for...

Part III The Impact of Freedom of Establishment on Private International Law for Insolvency, 8 Regulatory Competition for Insolvencies »

From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis
8.01 It is typical of the law in the USA that if a matter becomes highly controversial among States, the federal government will intervene and harmonize the law. This was the case with insolvency law in the United States which was finally federalized under the Nelson Act 1898 after several continuous enactments and repeals of federal bankruptcy statutes throughout the nineteenth century.1 Thus, there has not been a chance to test whether Romano’s view on the virtues of federalism can be applied to insolvency law. In fact, there appears to have been no recorded...

Part III The Impact of Freedom of Establishment on Private International Law for Insolvency, 6 The Scheme of Insolvency Proceedings in the European Union »

From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis
6.01 The real seat theory is not only present in the sphere of corporate affairs. It has also left its traces on European insolvency law. The Council Regulation (EC) 1346/2000 of 29 May 2000 on insolvency proceedings1 (hereinafter the ‘Insolvency Regulation’) has adopted a connecting factor that contains elements of the real seat theory. The centre of main interests (hereafter COMI) is the factor that confers international jurisdiction for insolvency proceedings within the EU.2 6.02 The Insolvency Regulation was adopted in order to promote the ‘proper functioning...

Table of Cases »

From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis

Table of Legislation »

From: Freedom of Establishment and Private International Law for Corporations
Paschalis Paschalidis