Book Project

Arkadiusz Radwan                                                               Table of Contents
New York, 6 October 2004

Europe got bigger! On this pleasant evening of April 30, we were given the historic chance to celebrate the most spectacular EU-Enlargement ever. On this occasion it seems appropriate for us - legal scholars and law practitioners alike, to acknowledge this momentous event in a truly academic manner, i.e. by editing and publishing a Festschrift. Though important, the memorial character of the Festschrift must not overshadow its strongly utilitarian nature. After almost two decades of impasse on the development of the European Company Law, a new impetus has appeared. There are three main factors that account for this new dynamic:

  • Factor I: the European Court of Justice's decisions in Cases Centros (C-212/97), Überseering (C-280/00) and Inspire Art (C-167/01) paving the way towards competition for corporate charters;
  • Factor II: The European Commission's "Plan to Move Forward", [COM (2003) 284 final], and subsequent consultation launched in the follow-up to the works of the High Level Group of Company Law Experts and the preceding SLIM-Working Group;
  • Factor III: The Enlargement of the European Union resulting in the broadening of the European company law landscape by adding ten new jurisdictions to the map of Corporate Europe.
The last factor shall be the main focus of our book project.

In fact, the enlargement of the European Union constitutes a different kind of development from the two other abovementioned factors. Enlargement inevitably will have an impact on both further competition (Factor I) and harmonisation (Factor II) in European Company Law. EU-Enlargement has changed the European Company Law Geography. However, by now it is quite unclear what the new Geography is like. Company lawmaking in Europe, like any European lawmaking, is an art of finding compromises international coalitions of interests. Therefore it is crucial to see who is likely to share the same views on different legal questions, and thus to recognize what alliances are possible on the European level. With this book we would like to fill in some missing pieces of the puzzle that is the New Map of Corporate Europe.

In regards to the market for corporate charters, for an efficient regulatory competition, there is a need for transparency with respect to the competing "products", i.e. national systems of company law. The proposed book aims at providing insight into all relevant factors that must be taken into account, while comparing different national company law systems. The central and most controversial problems will be discussed both from a theoretical and practical point of view, including extensive empirical evidence.

But most of all the book shall have a strong practical slant, not merely emphasizing foreign and European influence, but focusing mainly on domestic law and practice.

It is a common knowledge that all New Member States and short-listed Membership Candidates have attracted significant foreign investments, ever since the beginning of the transition period in 1989/90. This trend not only continues, but expands since the Enlargement of the European Union in May 2004, which accounts for the dismantling of many existing legal and psychological barriers. However, there still remain significant differences in company laws among particular Member States, which is due to fragmentary, rather than comprehensive, European harmonisation in the field of company law.

It is true that while setting up a subsidiary or opening a branch in Central and Eastern Europe, it is usually the local law firm from the respective target country that is hired or consulted. Nevertheless, there is one question that has to be asked before hiring a foreign law firm, namely, which country to choose for the investment. This is dependent on numerous factors, one of them being the system of company law, including especially worker codetermination, liability regime, the system of corporate governance, formalities of formation, costs and duration of the set-up process, capital requirements, squeeze-out and sell-out rights, and regulation of company migration, to name only the most important ones. All these questions have gained in significance since the abovementioned charter-shopping friendly ECJ-Rulings.

But lawyers from Central and Eastern Europe are likely to be quite interested in the topics covered in our book as well. English has long been the working language in the majority of cross-border transactions. So even for Polish, Czech, Hungarian or Bulgarian lawyers it would avail them to have a comprehensive study of their own legal system written in English. It will help them to explain legal issues and communicate with their foreign clients.

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