Edmund Schuster
The supposed disruptive and transformational potential of blockchain technology has received widespread attention in the media, from legislators, and from academics across disciplines. While much of this attention has revolved around cryptocurrencies such as Bitcoin, many see the true promise of blockchain technology in its potential use for transactions in traditional assets, as well as for facilitating self‐executing ‘smart contracts’, which replace vague and imprecise natural language with unambiguous computer code. This article presents a simple legal argument against the feasibility of a meaningful blockchain‐based economic system. Blockchain‐based systems are shown to be unsuitable for transactions in traditional assets, unless design choices are made which render the use of the technology pointless. The same argument is shown to apply to smart contracts. Legal and practical obstacles therefore mean that, outside its original realm of cryptocurrencies, blockchain technology is highly unlikely to transform economic interactions in the real world.
How does corporate governance influence banks’ resilience to crises? To address this question, we develop a measure of management entrenchment based on legal provisions. Unlike the existing alternatives, our measure considers the interactions between different provisions. We use this measure to study the relationship between management entrenchment and bank failure during the 2007-09 financial crisis. We find that banks in which managers were more insulated from shareholders in 2003 were less likely to be both bailed out in 2008/09 and targeted by activist shareholders. By contrast, alternative measures of management entrenchment fail to predict both bailouts and shareholder activism.
In December of 2018 a potentially transformative event occurred within UK corporate law and governance with the coming into force of the Revised Corporate Governance Code and its requirement that ‘the board should establish the company’s purpose’. This article explores how the Code’s references to ‘company purpose’ should best be understood, arguing, through a process of elimination, that it is an animated mission-purpose idea about what the company does; an animated idea that can both transform the nature of corporate life and offer pathways to value generation unavailable to non-purposeful companies. But in embracing purpose the Code invites the question: does the UK offer companies the legal and non-legal conditions to support and nurture purposeful companies? The article argues that although UK company law is theoretically capable of providing a purposeful legal ecology it is prevented from doing so by a constraining legal normality which is supported by, inter alia, investor inertia arising from the incentive structures of modern investment vehicles and the stickiness of default rules. Such practical barriers mean that legal reforms are required to enable company purpose to evolve into a meaningful concept, rather than an empty phrase. The article explores the nature of such reforms and the possible theoretical and empirical objections to them, which it rejects.
Der vorliegende Beitrag widmet sich der von der Regierung geplanten neuen Kapitalgesellschaftsform einer Austrian Limited und der parallel dazu begonnenen Reform des Kapitalgesellschaftsrechts.
There is significant legal variation and uncertainty in the conflict of laws rules applicable to companies in the EU. While the case law of the Court of Justice on the freedom of establishment has clarified some questions, it is evident that case law cannot provide for an adequate level of legal certainty. The main recommendation of this article is that private international company law in the EU should be harmonized. The article discusses the main challenges that a future regulation to this effect—called here ‘Rome V Regulation on the Law Applicable to Companies’—would have to overcome. Some of those are of a political nature: for instance, countries may fear that it may become easier for companies to evade domestic company law (eg, rules of employee co-determination), and there are specific considerations that concern companies established in third countries. Another challenge is that a future regulation on the law applicable to companies has to be consistent with existing EU conflict of laws rules as regards, for example, insolvency and tort law, while also complying with the freedom of establishment of the Treaty. It is the aim of this article to discuss these questions in detail, notably the general considerations for harmonisation in this field, a potential harmonization based on the ‘incorporation theory’, how it may be possible to overcome some contentious issues such as the definition of the lex societatis or the relationship between the lex societatis and other areas of law, and the prospects for future international harmonization.
The 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.
Research 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.
Despite 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.
Corporate mobility and choice of law within the EU has dominated much of the academic writing in European company law over the last decades. What has not yet received much attention is the way in which national company law interacts with and depends on features of the national legal system outside of company law. In this article we explore this interaction and its relevance for coherent national regulatory systems. Using the regulatory framework for companies in the “vicinity of insolvency” as an example, we show how choice of company law can create both regulatory gaps and multiplication of legal requirements, as private international law rules are applied inconsistently across Europe. More importantly, however, we show that even consistent application of conflicts rules would fail to resolve these problems due to cross-doctrinal interdependence within any national legal system. We conclude that this is a design flaw in the way EU law deals with the increasingly international reach of corporations, and discuss possible paths for resolving or mitigating this issue.