A new approach to the governing law of companies in the EU: a legislative proposal

Justin Borg Barthet

    Research output: Contribution to journalArticle

    1 Citation (Scopus)

    Abstract

    The European Commission recently invited views on whether legislation concerning the governing law of companies should be introduced. This article proposes that the response should be in the affirmative. It suggests that legislation should allow private ordering in the choice of a company's governing law and the situation of its seat. However, Member States should be limitedly empowered to protect against the avoidance of norms that reflect a "vigorous legislative intention" of the State in which a company's headquarters are situated. In order to retain the benefits of a single governing law and to limit complicated interactions with other laws, the formal bifurcation of a company's governing law should be avoided. Instead, the Member State of incorporation should ensure that certain matters in a company statute reflect the policy enshrined in the law of the Member State of the company's headquarters. Innovative use of information technology may be sufficient to limit potential inefficiencies.
    Original languageEnglish
    Pages (from-to)589-621
    Number of pages33
    JournalJournal of Private International Law
    Volume6
    Issue number3
    DOIs
    Publication statusPublished - Dec 2010

    Fingerprint

    EU
    Law
    legislation
    European Commission
    statute
    information technology
    interaction

    Keywords

    • Company law
    • Choice of law
    • Freedom of establishment
    • Information technology
    • European Union
    • Corporate governance

    Cite this

    @article{d0b385c362e249aeb4eef95f0d353c76,
    title = "A new approach to the governing law of companies in the EU: a legislative proposal",
    abstract = "The European Commission recently invited views on whether legislation concerning the governing law of companies should be introduced. This article proposes that the response should be in the affirmative. It suggests that legislation should allow private ordering in the choice of a company's governing law and the situation of its seat. However, Member States should be limitedly empowered to protect against the avoidance of norms that reflect a {"}vigorous legislative intention{"} of the State in which a company's headquarters are situated. In order to retain the benefits of a single governing law and to limit complicated interactions with other laws, the formal bifurcation of a company's governing law should be avoided. Instead, the Member State of incorporation should ensure that certain matters in a company statute reflect the policy enshrined in the law of the Member State of the company's headquarters. Innovative use of information technology may be sufficient to limit potential inefficiencies.",
    keywords = "Company law, Choice of law, Freedom of establishment, Information technology, European Union, Corporate governance",
    author = "{Borg Barthet}, Justin",
    note = "dc.publisher: Hart",
    year = "2010",
    month = "12",
    doi = "10.5235/174410410794046314",
    language = "English",
    volume = "6",
    pages = "589--621",
    journal = "Journal of Private International Law",
    issn = "1744-1048",
    publisher = "Taylor & Francis",
    number = "3",

    }

    A new approach to the governing law of companies in the EU: a legislative proposal. / Borg Barthet, Justin.

    In: Journal of Private International Law, Vol. 6, No. 3, 12.2010, p. 589-621.

    Research output: Contribution to journalArticle

    TY - JOUR

    T1 - A new approach to the governing law of companies in the EU: a legislative proposal

    AU - Borg Barthet, Justin

    N1 - dc.publisher: Hart

    PY - 2010/12

    Y1 - 2010/12

    N2 - The European Commission recently invited views on whether legislation concerning the governing law of companies should be introduced. This article proposes that the response should be in the affirmative. It suggests that legislation should allow private ordering in the choice of a company's governing law and the situation of its seat. However, Member States should be limitedly empowered to protect against the avoidance of norms that reflect a "vigorous legislative intention" of the State in which a company's headquarters are situated. In order to retain the benefits of a single governing law and to limit complicated interactions with other laws, the formal bifurcation of a company's governing law should be avoided. Instead, the Member State of incorporation should ensure that certain matters in a company statute reflect the policy enshrined in the law of the Member State of the company's headquarters. Innovative use of information technology may be sufficient to limit potential inefficiencies.

    AB - The European Commission recently invited views on whether legislation concerning the governing law of companies should be introduced. This article proposes that the response should be in the affirmative. It suggests that legislation should allow private ordering in the choice of a company's governing law and the situation of its seat. However, Member States should be limitedly empowered to protect against the avoidance of norms that reflect a "vigorous legislative intention" of the State in which a company's headquarters are situated. In order to retain the benefits of a single governing law and to limit complicated interactions with other laws, the formal bifurcation of a company's governing law should be avoided. Instead, the Member State of incorporation should ensure that certain matters in a company statute reflect the policy enshrined in the law of the Member State of the company's headquarters. Innovative use of information technology may be sufficient to limit potential inefficiencies.

    KW - Company law

    KW - Choice of law

    KW - Freedom of establishment

    KW - Information technology

    KW - European Union

    KW - Corporate governance

    U2 - 10.5235/174410410794046314

    DO - 10.5235/174410410794046314

    M3 - Article

    VL - 6

    SP - 589

    EP - 621

    JO - Journal of Private International Law

    JF - Journal of Private International Law

    SN - 1744-1048

    IS - 3

    ER -