Edmund-Phillip Schuster

Bio: Edmund-Phillip Schuster is an academic researcher. The author has contributed to research in topics: Common law & Corporate law. The author has an hindex of 1, co-authored 1 publications receiving 3 citations.

The Private International Law of Companies in Europe

Abstract: Can firms freely choose their place for corporation and thus the applicable law? And is it possible that a firm can subsequently reincorporate in another country, with the effect of a change of the law applicable to this country? In the European Union, the answer to these questions has to consider the impact of the freedom of establishment and the corresponding case law of the Court of Justice. Beyond some general principles, there is, however, considerable diversity between the laws of Member States. Thus, this book aims to provide an up-to-date analysis of this important area of law for all Member States. It is based on a comprehensive study, produced for the European Commission, on the private international law of companies in the European Union.

The illusion of motion: corporate (im)mobility and the failed promise of centros

Abstract: 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.

The Illusion of Motion: Corporate (Im)Mobility and the Failed Promise of Centros

Abstract: 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.

Mandatory and Default Regulation in the Slovak Commercial Law

Abstract: The aim of this contribution is to provide the reader with an understanding of the concept of mandatory and default regulation within the Slovak commercial law. Private law regulation is in the Slovak Republic quite specific, as the Commercial Code covers not only companies (and cooperatives), but contractual aspects of the commercial law as well, which interferes with the contractual regulation stipulated in the Civil Code and causes duality. The Commercial Code and the Civil Code differently regulates the matter of mandatory and default regulation and therefore we found it crucial to provide the reader, who (most likely) does not have a detailed knowledge about these specificities in the Slovak law, with a more theoretical and descriptive introduction. Such an introduction is crucial in order to understand the following contextual analysis of the issue of mandatory and default regulation in the Slovak commercial law. However, the main aim of this contribution is to tackle the specific angles of the topic, in concrete, a possible judicial interference into the mandatory and default regulation of the commercial law and its impact on this concept. Moreover, the authors address the matter of possible avoidance of mandatory regulation in the commercial law through the contract on the sale of an enterprise and shareholders’ agreements, which are uniquely regulated in the Commercial Code. Moreover, the contribution addresses a hypothesis, that despite the need for simplification of the commercial law, the latest amendments of the Commercial Code goes opposite direction by introducing new mandatory provisions into the code, due to the abuse of a company as a legal form.