Part II Economic Regulation, 8 Multinational Group Liability and Directors’ Duties

2021 ◽  
Author(s):  
Muchlinski Peter T
Keyword(s):  
Multinational Enterprise ◽  
Historical Analysis ◽  
Company Law ◽  
Economic Regulation ◽  
Minority Shareholders ◽  
Legal Form ◽  
Legal Personality ◽  
Corporate Groups ◽  
Corporate Capital ◽  
The Impact

This chapter addresses the impact of the multinational enterprise (MNE) group on company law, considering the themes of corporate control and liability. The existence of group enterprises challenges the basic legal characteristics of the corporation: separate legal personality; directors’ duties to the company; the integrity of corporate capital; and protection of shareholders against liability for corporate debts. Corporate legal separation also hides the underlying group enterprise, reducing accountability for group actions and impacting various classes of potential claimants. The chapter then offers a historical analysis of the corporate legal form as a regulatory device for transnational corporate groups. It looks at the limits of group liability towards voluntary and involuntary creditors in equity-based groups, and in contract-based transnational network enterprises. The chapter also discusses reforms that could enhance MNE group liability and examines the group liability of directors, covering protection of minority shareholders in subsidiaries and compensation of creditors on the insolvency of affiliates.

The European Company – A Challenge to Academics, Legislatures and Practitioners

2003 ◽  
Vol 4 (4) ◽  
pp. 309-331 ◽  
Author(s):  
Christoph Teichmann
Keyword(s):  
European Commission ◽  
Corporate Law ◽  
Company Law ◽  
Tax Law ◽  
Legal Form ◽  
Corporate Groups ◽  
European Company ◽  
European Company Law ◽  
Societas Europaea ◽  
Legal Forms

The European Company – or Societas Europaea (SE) – has been referred to as the “flagship of European Company Law”. This is certainly true if one considers the ambitious origins of the project. In 1970, the European Commission presented the first draft of the Statute for a European Company. A completely autonomous European legal form was intended, freely floating above the national legal forms and based solely on the sturdy branch of a purely European corporate law. The text of 1970 was, in substance, a complete code of corporate law. From the management structure to shareholders’ actions, from the law of corporate groups (Konzernrecht) to accounting law, from tax law to co-determination – every regulation required in a modern corporate law was provided for.

Redefining the Freedom of Establishment under EU Law as the Freedom to Choose the Applicable Company Law: A Discussion after the Judgment of the Court of Justice (Grand Chamber) of 25 October 2017 in Case C-106/16, Polbud

2018 ◽  
Vol 15 (2) ◽  
pp. 270-307 ◽  
Author(s):  
Ariel Mucha ◽  
Krzysztof Oplustil
Keyword(s):  
Limited Liability ◽  
Company Law ◽  
Eu Law ◽  
Minority Shareholders ◽  
Freedom Of Establishment ◽  
Legal Form ◽  
Court Of Justice ◽  
Registered Office ◽  
Grand Chamber ◽  
A Company

On 25 October 2017, the Court of Justice handed down a judgment in the Polbud case (C-106/16). This is the result of three preliminary questions raised by the Polish SC. The facts in the case concern the Polish private limited liability company which wanted to transfer its registered office to Luxembourg and to change its legal form. In general, the questions refer to two pertinent issues: first, if the national law providing for mandatory company’s liquidation in case of transferring the company’s seat abroad complies with the EU law, and second, if the so-called isolated cross-border conversion is covered by the freedom of establishment. With little doubt, the first question was answered in the negative. As to the second issue, the Court holds that it is not mandatory in the light of EU law for the company wishing to transfer its registered office and convert itself into a company governed by the law of another MS to establish an economic presence in that MS. It is likely that the Court of Justice’s findings will open another Pandora’s box with many unknown results, mainly concerning minority shareholders’ and creditors’ protection as well as further (un)desired liberalisation of the internal market.

3. Corporate personality

2021 ◽  
pp. 35-56
Author(s):  
Brenda Hannigan
Keyword(s):  
Fundamental Principle ◽  
Company Law ◽  
Legal Entity ◽  
Legal Personality ◽  
Corporate Groups ◽  
House Of Lords ◽  
Parent Companies ◽  
Corporate Personality ◽  
Do So

This chapter discusses the concept of corporate legal personality. This fundamental principle of company law—that the company on incorporation becomes a separate legal entity in its own right—was established by the House of Lords in Salomon v Salomon & Co Ltd. The Salomon principle and its consequences for individual companies and for groups of companies are considered. In limited circumstances, the court may disregard or pierce or lift the corporate veil and the narrow jurisdiction to do so is explained. The chapter also considers corporate groups in the light of Salomon, particularly with regard to the liability of parent companies for the actions of subsidiary companies.

scholarly journals Doing the Corporate Business with Piercing the Corporate Veil Doctrine: Indonesia, Us And Uk Perspective

2020 ◽  
Vol 3 (2) ◽  
pp. 126-129
Author(s):  
Ng Catharina Enggar Kusuma ◽  
Fl. Yudhi Priyo Amboro
Keyword(s):  
Comparative Law ◽  
Company Law ◽  
Parent Company ◽  
Legal Basis ◽  
Legal Research ◽  
Legal Personality ◽  
Corporate Groups ◽  
Piercing The Corporate Veil ◽  
Corporate Business ◽  
Evident Relationship

The absence of piercing the corporate veil doctrine in the Indonesian company law shows that the subsidiaries of such corporate groups are considered a separate legal personality, hence it is probably almost impossible to held the parent company liable for its subsidiaries’ legal actions under any conditions. This research adopted a normative legal research with a comparative law study method. The goal of this research is describe the implementation of piercing the corporate veil doctrine in Indonesia, US and UK, then to make the points of contribution of this doctrine to be regulated properly in Indonesia. In fact, piercing the corporate veil doctrine is implemented in Indonesia, although there was not any normative legal basis of the doctrine itself, whereas in US and UK, the doctrine is implemented and further developed through precedents. Therefore, since there is an evident relationship between a parent company and its subsidiary, whereby in certain cases the parent company can and should be held liable for the acts of its subsidiary, there should be a more explicit regulation regarding both corporate groups and piercing the corporate veil doctrine.

scholarly journals PERAN ASSOCIATION OF SOUTHEAST ASIAN NATIONS DALAM PEMBENTUKAN HUKUM PERDAGANGAN INTERNASIONAL DI KAWASAN ASIA TENGGARA

2020 ◽  
Vol 13 (2) ◽  
pp. 173-184
Author(s):  
Endra Wijaya ◽  
Ricca Anggraeni ◽  
Andi Ardillah Albar
Keyword(s):  
International Trade ◽  
East Asia ◽  
Southeast Asian ◽  
South East Asia ◽  
Legal Form ◽  
Legal Personality ◽  
Trade Law ◽  
International Trade Law ◽  
East Asia Region ◽  
The Impact

AbstractThis article focuses on how Association of Southeast Asian Nations (ASEAN) plays its role in forming the international trade law in South-East Asia, and the readiness of Indonesia in response to such developing ASEAN’s role. This article uses doctrinal legal research method, also with legal and conceptual approach. ASEAN has significant role in international trade law development, especially in this era of ASEAN Economic Community (AEC). AEC has been running effectively since 2015, and it focuses in regulating several main issues, namely, establishment of free flow of goods, services, investment, capital, and movement of professionals or skilled labors within South-East Asia region. The conclusion is ASEAN, as an international organization, gains its legal personality in the time ASEAN Charter was established and come into force effectively. Having legal personality makes ASEAN able to create certain international legal form, including in the form of treaty or international agreement. In relation to that, ASEAN has been issuing several international agreements regarding economic activity or international trade activity within South-East Asia region, but the impact is such agreements also contain liberal values and it strongly indicated has been penetrating Indonesia as a sovereign state. In response to such condition, Pancasila, as Indonesian state philosophy, should be referred to. Keywords: international treaty; legal personality; Pancasila as idea of lawAbstrakArtikel ini berfokus pada persoalan peran ASEAN dalam pembentukan hukum perdagangan internasional di kawasan Asia Tenggara, dan juga bagaimana kesiapan Indonesia dalam merespons peran ASEAN tersebut. Metode penelitian yang digunakan ialah metode penelitian hukum doktrinal, dan dengan menggunakan pendekatan legal dan konseptual. ASEAN memainkan peran yang signifikan dalam dinamika hukum perdagangan internasional, terlebih lagi saat Masyarakat Ekonomi ASEAN (MEA) sudah berlaku secara efektif. Pemberlakuan MEA yang dimulai pada tahun 2015, secara garis besar, berfokus pada pengaturan beberapa hal pokok, yaitu perihal menciptakan “aliran bebas” lalu lintas barang, jasa, investasi, modal, dan tenaga kerja terampil. Untuk menjamin terlaksananya lalu lintas tanpa hambatan itu, ASEAN membentuk beberapa perjanjian internasional yang secara substansi mengatur tentang lalu lintas barang, jasa, investasi, modal, dan tenaga kerja terampil di kawasan Asia Tenggara. Kajian ini menyimpulkan bahwa personalitas hukum ASEAN baru diperoleh saat Piagam ASEAN mulai berlaku secara efektif, dan sejak saat itu, ASEAN sebagai organisasi internasional mulai banyak memproduksi pengaturan mengenai perdagangan internasional, terutama dalam bentuk perjanjian internasional. Perjanjian-perjanjian internasional tersebut mengandung semangat bagaimana menciptakan kawasan Asia Tenggara menjadi jalur lalu lintas yang bebas bagi aktivitas perekonomian atau perdagangan internasional. Namun, keberadaan perjanjian-perjanjian internasional itu juga justru mengindikasikan bahwa liberalisasi sedang melakukan penetrasinya ke dalam Negara Indonesia yang berdaulat. Untuk merespons keadaan tersebut, maka yang diperlukan oleh Indonesia ialah kembali kepada cita hukum Pancasila sebagai pedoman. Kata kunci: cita hukum Pancasila; perjanjian internasional; personalitas hukum

Corporate Groups: Competences of the Shareholders’ Meeting and Minority Protection – the German Federal Court of Justice's recentGelatineandMacrotronCases Redefine theHolzmüllerDoctrine

2004 ◽  
Vol 5 (9) ◽  
pp. 1057-1079 ◽  
Author(s):  
Marc Löbbe
Keyword(s):  
Balance Of Power ◽  
Federal Court ◽  
Company Law ◽  
Minority Shareholders ◽  
Minority Protection ◽  
Corporate Groups ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
Federal Supreme ◽  
Stock Corporation

There are few cases in the law of corporate groups that have provoked as much interest, applause and critique as theHolzmüllerdecision of the Federal Supreme Court. On February 25, 1982, the 2ndZivilsenat(Chamber of civil cases) of theBundesgerichtshof(BGH – Federal Court of Justice), the highest court with assigned competences for company law, adopted what would later be known as theHolzmüllerdoctrine. Since then theHolzmüllercase has influenced the course of countless shareholders’ meetings, been relied on in numerous shareholder actions and has initiated intensive academical as well as practical debate. What is it all about? At the core,Holzmüllerdeals with the balance of power between theHauptversammlung(shareholders’ meeting) and theVorstand(board of directors) of a GermanAktiengesellschaft(AG – stock corporation) within the context of corporate groups. Practically, the protection of minority shareholders of a corporate group's parent company is a major underlying issue.

scholarly journals Factors affecting the dividend policy of non-financial joint-stock companies in Ukraine

2020 ◽  
Vol 17 (3) ◽  
pp. 40-53
Author(s):  
Heorhiy Rohov ◽  
Oleh Kolodiziev ◽  
Nataliya Shulga ◽  
Mykhailo Krupka ◽  
Tetiana Riabovolyk
Keyword(s):  
Corporate Governance ◽  
Dividend Policy ◽  
Institutional Environment ◽  
Classification Tree ◽  
Classification Model ◽  
Economic Regulation ◽  
Business Risk ◽  
Minority Shareholders ◽  
Factors Affecting ◽  
The Impact

Dividend policy, as part of corporate governance, is largely dependent on the institutional environment in which companies operate. The study aims to determine factors affecting dividend policy in the conditions of the Ukrainian underdeveloped stock market, legal insecurity of minority shareholders, high cost and concentration of capital. For this purpose, hypotheses about the impact of a company’s financial state, size, business risk, and ownership structure on dividend payments were tested using a sample of 58 Ukrainian non-financial public joint-stock companies and applying Interactive tree classification techniques (C&RT). The resulting classification model for predicting dividend decisions correctly classifies 92.86% of companies that paid dividends and 93.3% of companies that did not. The findings, based on the classification tree and importance scale, prove the hypothesis that companies in which individuals and institutional investors have a controlling interest are more likely to pay dividends than other non-state companies. The financial indicators accurately classify only those firms that do not pay dividends, and business risk does not affect classification accuracy at all. The paper substantiates the ways of using the study findings for economic regulation, protection of minority shareholders’ rights, and proliferation of modern corporate governance practices.

The Opera-Telephone in Munich

2018 ◽  
Author(s):  
Sonja Neumann
Keyword(s):  
Social Economic ◽  
Historical Analysis ◽  
Technical Innovation ◽  
Reciprocal Relation ◽  
Special Means ◽  
Private And Public ◽  
Listening Experience ◽  
Visual Element ◽  
The Impact ◽  
Technical Products

Through a cultural-historical analysis, the chapter portrays the Opera-Telephone in Munich as a special means of listening and explores its technical, social, economic, and psychological aspects. These aspects strongly reflect the reciprocal relation of technical innovation and listening to music, for example, by emphasizing the meaning of live broadcasting for listening habits and by highlighting the impact of headphone use on aural perception. The latter practice enables the transfer of the multidimensional opera event into a pure listening experience as the visual element is eliminated. The Opera-Telephone also serves to illustrate matters of social status in regard to private and public listening. In this way, opera was incorporated into the marketing of modern technical products.

Corporations, comity and the ‘revenue rule’: a jurisprudence of offshore

2021 ◽  
Author(s):  
Clair Quentin
Keyword(s):  
The State ◽  
Company Law ◽  
Tax Law ◽  
International Capital ◽  
Economic Relations ◽  
Corporate Capital ◽  
Corporate Form ◽  
Mutual Antagonism ◽  
Prevailing View ◽  
Property Regime

Abstract This article contrasts the territorial unboundedness of company law, arising from ‘comity’, with the territorial constraint imposed on tax law i.e. ‘the revenue rule’. ‘Comity’ is found to be a judicial fig-leaf disguising a form of corporate sovereignty arising from the fact that economic relations are always already constituted through the corporate form before any scrutiny of their ontology. This observation is developed into a theory of ‘offshore’. The prevailing view of offshore is that the state bifurcates its sovereignty to create juridical spaces where international capital is relieved of local tax/regulatory regimes. This article seeks to underpin that view with an analysis whereby corporate capital and state sovereignty are rival species of property regime, existing in a state of mutual antagonism. On this view offshore is the juridical space, manifesting itself through the aforementioned bifurcations, where the company is sovereign over the state rather than vice-versa.

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