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Federico Maria Mucciarelli

Bio: Federico Maria Mucciarelli is an academic researcher from University of Modena and Reggio Emilia. The author has contributed to research in topics: Insolvency & Corporate law. The author has an hindex of 7, co-authored 34 publications receiving 144 citations. Previous affiliations of Federico Maria Mucciarelli include University of Bologna & SOAS, University of London.

Papers
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Journal ArticleDOI
TL;DR: In the E.U., reincorporations are a relatively easy task, since they only shift rules that address the shareholders - board relation, while creditors and other stakeholders are not affected as mentioned in this paper.
Abstract: In the U.S., corporations can be incorporated in any of the 50 states and can “reincorporate” afterwards in any other state. However, the competence of the state where a company is incorporated is limited: on the one hand, it is restricted by federal laws and, on the other hand, it regulates only the “internal affairs” of corporate activities. Consequently, in the U.S. reincorporations are a relatively easy task, since they only shift rules that address the shareholders - board relation, while creditors and other stakeholders are not affected.In the E.U., we find a partially similar scenario. In the last decade, the European Court of Justice has liberalized initial incorporations and in 2005 the cross-border directive has opened the doors to freedom of reincorporation from one member state to another. In the E.U., reincorporations have a much different impact than on the other side of the Atlantic, since the agency problems between shareholders and the board are bundled with the agency problems between shareholders and creditors, all being in the competence of the member state of incorporation. In the E.U., therefore, any change of the applicable corporate law risks to jeopardize creditors. Sophisticated creditors will discount this risk from the credit rate or will protect themselves through specific covenant, but non-sophisticated creditors will bear entirely the risk of opportunistic reincorporations. For this reason, many E.U. member states provide mechanisms for creditors’ protection in case of reincorporation, often by requiring the debtor to give a security or to pay the debts that are not yet due. These mechanisms are aimed at avoiding negative externalities, yet they make reincorporations more expensive and will impede a certain number of efficient transactions.

12 citations

Posted Content
TL;DR: 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 as discussed by the authors, but 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.
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.

12 citations

Journal ArticleDOI
TL;DR: In this article, the authors show that the choice regarding power allocation over bankruptcies in the EU depends on the progress of European integration and is mainly a matter of political legitimacy, not only of efficiency.
Abstract: Certain insolvency law rules, like creditors’ priorities and set-off rights, have a distributive impact on creditors. Distributional rules reflect the hierarchies of values and interests in each jurisdiction and, as a result, have high political relevance and pose an obstacle to reforming the EU Insolvency Regulation. This paper will show the difficulty of reform by addressing two alternative options to regulate cross-border insolvencies in the European Union. The first one is the ‘choice model’, under which companies can select the insolvency law they prefer. Although such a model would allow distressed firms to select the most efficient insolvency law, it would also displace Member States’ power to protect local constituencies. The choice model therefore produces negative externalities and raises legitimacy concerns. The opposite solution is full harmonisation of insolvency law at EU level, including distributional rules. Full harmonisation would have the advantage of internalising all externalities produced by cross-border insolvencies. However, the EU legislative process, which is still based on negotiations between states, is not apt to decide on distributive insolvency rules; additionally, if harmonisation includes such rules, it will indirectly modify national social security strategies and equilibria. This debate shows that the choice regarding power allocation over bankruptcies in the EU depends on the progress of European integration and is mainly a matter of political legitimacy, not only of efficiency.

12 citations

Journal ArticleDOI
TL;DR: In this article, the authors argue that harmonization of the reincorporation process is necessary, and that it is desirable to reach a high minimum standard of creditor and minority shareholders protection.
Abstract: 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.

11 citations

Journal ArticleDOI
TL;DR: The European Court of Justice has recently issued a decision on the existence of a general principle of equal treatment of minority shareholders upon a transfer of control as discussed by the authors, which can be inferred from specific specific acts of EU law (such as, among others, the mandatory bid rule provided for by the Takeover Directive).
Abstract: The European Court of Justice has recently issued a decision on the existence of a general principle of equal treatment of minority shareholders upon a transfer of control. According to the plaintiff, from certain specific acts of EU law (such as, among others, the mandatory bid rule provided for by the Takeover Directive) could be inferred the existence of a principle, according to which the person who purchases the control of a company should then offer to all other shareholders the same opportunity to sell their shares. The ECJ denied that such a principle can be inferred from specific provisions of derivative EU law beyond their scope of application. In addition, the ECJ has put in clear words that, in order to impose to the acquirer of corporate control a duty to purchase all outstanding shares, a specific legislative decision is required, with the aim to weight all involved interests.

10 citations


Cited by
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BookDOI
01 Jan 2010
TL;DR: In this paper, the authors defined the law of corporate finance from the perspective of a non-financial firm and studied how risk, agency, and information can be managed in all contracts.
Abstract: In this three-volume book, the law of corporate finance is defined in a modern way and studied from the perspective of a non-financial firm. The law of corporate finance helps the firm to manage cash flow, risk, principal-agency relationships, and information in the context of all decisions that influence the firm s finances. The first volume introduces the fundamental concepts and explains the relationship between corporate risk management, the management of agency relationships, corporate governance, and the management of information. The second volume discusses how risk, agency, and information can be managed in all contracts. In addition, the second volume contains an introduction to the legal aspects of payment obligations and the management of various forms of counterparty risk. The third volume discusses a wide range of funding and exit transactions as well as the legal aspects of takeovers."

49 citations

Dissertation
15 May 2014
TL;DR: In this article, the Court de justice de l’Union europeenne tente de limiter les interpretations extensives des criteres de competence in l'Arret Eurofood, and des solutions sont proposees pour favoriser un traitement transfrontiere efficace des difficultes.
Abstract: Cette these a pour objectif de convaincre de la necessite d’introduire des regles applicables aux groupes de societes au sein du reglement, et d’analyser, au moyen du droit compare, les resistances que cette position impliquent et d’en tirer les consequences qui lui sont attachees au regard de la securite juridique au sein de l’Union europeenne.Alors que le texte prohibe - implicitement - l’application du reglement au groupe de societes, le juge anglais, inspire par un certain pragmatisme, a tres vite considere que le renversement de la presomption en faveur du siege social statutaire des filiales permettrait la centralisation des procedures principales au sein d’un seul Etat membre pour le traitement unitaire des difficultes des groupes de societes (« la jurisprudence Daisytek »). La Cour de justice de l’Union europeenne a dans son celebre arret Eurofood tente de limiter les interpretations extensives des criteres de competence dont les juridictions nationales s’etaient vite accommodees. Les jurisprudences nationales se sont ensuite diversifiees. Si certains juges ont accorde un poids determinant a la presence d’une activite dans l’Etat membre sur le territoire duquel est situe le siege social statutaire des societes membres d’un groupe, d’autres juges ont tout simplement resiste a l’arret Eurofood. Examinant ensuite les propositions des institutions europeennes visant a modifier le reglement 1346/2000, cette these souligne la volonte des autorites europeennes d’inserer des regles applicables aux groupes de societes pour la mise en oeuvre du reglement. Au terme de cette etude de droit compare, des solutions sont proposees pour favoriser un traitement transfrontiere efficace des difficultes au sein d’un groupe de societe tout en garantissant la securite juridique des tiers au sein de l’Union europeenne.

46 citations

Journal ArticleDOI
Klaus J. Hopt1
TL;DR: The work in this paper analyzes seven critical areas of European Corporate Law and Governance as of 2015: empowering shareholders and institutional investors, controlling shareholders, groups of companies and related party transactions, new European corporate forms; corporate and bank governance; free transfer of seat without new incorporation; corporate finance and capital maintenance and European takeover law reform.
Abstract: European corporate law and corporate governance are moving ahead beyond expectation. Some British voices called this “a renaissance in the past decade”. In December 2012, the European Commission came forward with an Action Plan that combines both corporate law and corporate governance rules and contains sixteen disparate initiatives partly to be implemented through Directives, partly through non-legal measures. Meanwhile a fight on the Draft Shareholder Rights Directive is going on in the European Council and the Parliament, with major compromises pending in 2015. Further corporate law harmonization measures are under way, in particular the proposal of Single-Member Private Limited Companies. The European Court of Justice’s case law has a far-reaching impact on the free movement of corporations in the European Union, but is not able to singlehandedly create European corporate law with decisions based on the freedoms of the Treaty. On this background the article analyzes seven critical areas of European Corporate Law and Governance as of 2015: Empowering shareholders and institutional investors; controlling shareholders, groups of companies and related party transactions; new European corporate forms; corporate and bank governance; free transfer of seat without new incorporation; corporate finance and capital maintenance and European takeover law reform. The article ends with looking into the goals, methods and scope of European corporate law-making. Free mobility and minimum protection have to be balanced. Transparency as a method of regulation strengthens private autonomy and supports market forces. Harmonization must be limited to the core areas of corporate law, and national and European corporate law will need to complement one another. It remains to be seen whether the codification plans of the Commission and the private model law initiatives will produce convincing results. In sum any step to more European law in the before-mentioned core areas should not only be left to the forces or deadlocks of political compromise, but in order to be really useful will need to be addressed in a careful, ongoing, policy-oriented, economic and comparative law discussion.

32 citations

MonographDOI
Nicola de Luca1
15 Apr 2021
TL;DR: De Luca's European company law textbook as mentioned in this paper has been extensively updated in this new edition to cover the latest legislation and directives on cross-border mergers, the use of digital tools, and crossborder insolvency, while figures and graphs have been introduced to illustrate complex processes and relationships.
Abstract: Taking a text, cases and materials approach, de Luca's successful textbook remains the only offering for students of European company law, and has been thoroughly updated in this new edition. Chapters have been expanded to cover the latest legislation and directives on cross-border mergers, the use of digital tools, and cross-border insolvency, while figures and graphs have been introduced to help illustrate complex processes and relationships. Clearly differentiated explanatory textboxes from the first edition have been revised, and allow students to quickly identify sources such as EU legislation, official documents and excerpts from scholarly papers. The book explores a diverse range of topics, from what European company law is, to the structure of the Societas Europaea Statute, capital markets and takeover law. It continues to be an essential resource for the growing number of graduate courses in European company law, European business law, and comparative corporate law.

28 citations

01 Jan 2005
TL;DR: In this article, the structural conditions of competition on the supply and demand sides of the market for corporate law, and the impact of supranational influence on European corporate law are analyzed.
Abstract: In its opinions in the cases Centros, Überseering and Inspire Art, the ECJ has begun to open European corporate law for regulatory competition, as it has been discussed in the US for several decades. This article analyses the structural conditions of competition on the supply and demand sides of the market for corporate law, and the impact of supranational influence. In doing so, it identifies several factors that have received little attention in the incipient European debate. The supply-side analysis shows that a European Delaware is implausible because of the interdependence of competitive advantages and incentives to compete. On the demand side, an analysis of the effects of differences of financial structures indicates that a race to the bottom is more likely in Europe. The comparatively weak threat of supranational intervention in Europe makes actions and decision making an unlikely factor to affect the decisions of national actors.

25 citations