Abschied vom Einheitsstatut. Die Konkurrenz von Anknüpfungsgegenständen im Internationalen Gesellschaftsrecht im Bereich des Gläubigerschutzes

Abstract

In the absence of a harmonized connecting factor to determine the law applicable to companies, the European debate has been, to some degree, settled by the ECJ jurisprudence. Freedom of establishment grants shareholders free choice of legal form, both for initial incorporation as well as later reincorporation. On the other hand, some more recent ECJ judgements give rise to reassessing to what extent shareholders should be able to determine the corporate framework. We find that these judgements do not reflect the traditional approach of considering the company as a unified structure governed by one statute. In particular, this concerns legal rules governing the company in crisis, including director’s duties at the boundary between company law and insolvency law. It can be argued that these rules are outside the scope of the corporate contract and should therefore not be open to the shareholders’ choice of law. Instead, they may be qualified as general tort or insolvency law rules, with the company’s centre of activity as a connecting factor.