scholarly journals Directors' duty to consider the interests of creditors and other stakeholders when there is a likelihood of insolvency

2021 ◽  
pp. 139-158
Author(s):  
Irena Radić
Keyword(s):  
Corporate Law ◽  
Member States ◽  
Legal Challenges ◽  
Legal Position

Directive (EU) 2019/1023 on restructuring and insolvency requires member states to ensure that, where there is a likelihood of insolvency, directors have due regard for the interests of creditors, equity holders, and other stakeholders. In this paper, the author analyzes the legal position and interests of creditors and other stakeholders when there is a risk of insolvency and briefly addresses the legal mechanisms of corporate law that are directed to protect the interests of creditors and other stakeholders. The author also analyzes the content of directors' duty as required by the Directive and the constraints and legal challenges of enforcement of the directors' duty to act in the interests of creditors and other stakeholders.

scholarly journals How Far Is It from Warsaw to Luxembourg and Karlsruhe: The Impact of the PSPP Judgment on Poland

2020 ◽  
Vol 21 (5) ◽  
pp. 1104-1115
Author(s):  
Stanisław Biernat
Keyword(s):  
European Integration ◽  
Rule Of Law ◽  
Case Law ◽  
Eu Law ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
Constitutional Tribunal ◽  
Legal Position ◽  
The Impact

AbstractA concern was voiced in commentaries after the PSPP judgment that the BVerfG’s position regarding the refusal to apply in Germany the CJEU judgment as issued on an ultra vires basis might be used in EU Member States infringing the rule of law, and the independence of the judiciary in particular. This issue is presented in relation to Poland. The article sets out the constitutional provisions which proclaim openness to European integration, as well as the union-friendly case-law of the Constitutional Tribunal (CT) until 2016. The CT jurisprudence at that time provided, however, for the possibility of refusing to apply EU law in exceptional situations, even though this never happened. Next, the article discusses endeavors of the new Polish authorities since the end of 2015 which drastically breach the rule of law in the field of the judiciary, as well as the measures taken by EU institutions to counteract these adverse phenomena. The Polish authorities argue that the competence to define the legal position of the judiciary has not been conferred on the Union and remains within the exclusive competence of the Member States. Such a stance was also taken by the politically dependent CT in April 2020. The PSPP judgment was therefore welcomed with joy by Polish politicians. There are major differences, however, between the rulings of the BVerfG and those of the Polish CT in its current composition, and the hopes pinned on the PSPP judgment by the Polish authorities are unfounded.

scholarly journals W oczekiwaniu na wykonanie art. 23 TFUE i art. 35 TUE – wciąż niepełne prawo obywateli Unii Europejskiej do opieki dyplomatycznej i konsularnej

2020 ◽  
Vol 29 (5) ◽  
pp. 149
Author(s):  
Krzysztof Kozłowski
Keyword(s):  
International Law ◽  
Early Stage ◽  
Qualitative Change ◽  
Maastricht Treaty ◽  
Member States ◽  
Stage Of Development ◽  
Treaty Law ◽  
Legal Position ◽  
The Right

<p>In 1992, with the adoption of the Maastricht Treaty, a new institution, namely EU citizenship, was created. The treaty introduced a qualitative change in the sphere of political and legal position of citizens of the Member States, who gained in these spheres a number of new powers. One of them is the right to diplomatic and consular protection. The analysis of these two rights leads to a conclusion about the great discrepancy that exists between treaty guarantees and the effective exercise of this right. The Member States did not agree with third countries on this subject, which is a requirement of international law. Secondary law also allows only a partial exercise of the treaty’s right to care in the territory of third countries. It has been reduced only to consular assistance and is still narrowly understood. The treaty law of EU citizens remains therefore at a very early stage of development.</p>

scholarly journals ASSESSING THE WTO COMPLIANCE OF SELECTED ASPECTS OF SOUTH AFRICA’S INTERNATIONAL TRADE ADMINISTRATION AMENDMENT BILL

Obiter ◽  
2021 ◽  
Vol 31 (2) ◽  
Author(s):  
Lonias Ndlovu
Keyword(s):  
International Trade ◽  
World Trade Organization ◽  
South African ◽  
World Trade ◽  
Regulatory Regime ◽  
Interested Party ◽  
Member States ◽  
The World ◽  
Legal Position

This article argues that while South Africa’s International Trade Administration Amendment Bill and the attendant proposed regulations may generally be regarded as a positive legislative intervention, to a large extent, the new regulatory regime goes against the spirit, object and purport of the World Trade Organization (WTO) anti-dumping agreement and is even in conflict with South Africa’s International Trade Administration Act itself. In order to substantiate the above reservations, this article first outlines the basics of WTO dumping and anti-dumping law before proceeding to point out aspects of South Africa’s anti-dumping law and practicewhich incorporate WTO tenets. With the aid of selected WTO disputes and examples from comparative WTO member states, this article also comments on selected impugned changes likely to be introduced by the Bill and the new regulations and concludes that the proposed new law is unlikely to be WTO compliant. This conclusion is premised on the fact that South African dumping and anti-dumping law relating to confidentiality, the process of conducting investigations, termination of investigations based on de minimis margins and interested party hearings does not always mimic the legal position as espoused in the WTO anti-dumping agreementand interpreted in selected WTO disputes.

The Status of Member States not Participating in the Euro

2001 ◽  
Vol 4 ◽  
pp. 293-314
Author(s):  
David O’Keeffe ◽  
Catherine Turner
Keyword(s):  
Economic And Monetary Union ◽  
Member States ◽  
The Third ◽  
The United Kingdom ◽  
Third Stage ◽  
The Status ◽  
Legal Position ◽  
The Uk ◽  
Heads Of State

In May 1998, the Council, meeting in the composition of Heads of State or Government, unanimously decided, in accordance with Article 121(2) EC, that eleven Member States fulfilled the necessary conditions to move towards the third and final stage of economic and monetary union (EMU) with the adoption of the single currency on 1 January 1999. This article will discuss the legal position of the Member States which did not initially progress to the third stage of EMU, in particular, the opt-outs exercised by the United Kingdom (UK) and Denmark. There follows an analysis of the extent of the UK and Danish opt-outs and the derogation which exists in relation to Sweden (and previously Greece) together with the role of these Member States in the new institutional framework as in operation from 1 January 1999. The current political discussions on the Euro taking place within the UK and Denmark will be highlighted.

scholarly journals The End of History for the Board Neutrality Rule in the EU

2019 ◽  
Vol 21 (2) ◽  
pp. 253-277
Author(s):  
Jonathan Mukwiri
Keyword(s):  
Market Orientation ◽  
Corporate Law ◽  
Key Factors ◽  
Member States ◽  
End Of History ◽  
Object Lesson ◽  
The End Of History ◽  
Failed Attempt ◽  
The Eu

Abstract This paper argues that the failed attempt to introduce a mandatory board neutrality rule into EU takeover law was an object lesson that it is difficult to enact rules that are contrary to the corporate law cultures of the majority of the Member States. It provides an account of key factors that prevented enacting a mandatory board neutrality rule in the EU: varying takeover laws and practices; conflicting management and shareholder interests; divide between exhaustive and minimum harmonisation; and varying market orientation models. It argues that as long as there are varied national corporate laws, most EU corporate law rules are bound to remain categorised as optional, unimportant, or avoidable.

scholarly journals The Right to Legal and Other Appropriate Assistance for Child Suspects and Accused

2018 ◽  
Vol 26 (2) ◽  
pp. 110-131 ◽  
Author(s):  
S.E. Rap ◽  
D. Zlotnik
Keyword(s):  
Criminal Case ◽  
Legal Assistance ◽  
Criminal Proceedings ◽  
Member States ◽  
Main Challenge ◽  
Legal Position ◽  
Procedural Safeguards ◽  
The Right

In this article the development and background of the Directive on procedural safeguards for children who are suspects or accused persons in criminal proceedings is sketched out. Two key rights are reflected upon: the right to legal assistance and the right to other appropriate assistance. The main challenge with regard to the implementation of the right to legal assistance is the possibility of member states to derogate from this right on the basis of the circumstances of the particular criminal case(s) involving the child. The right to legal assistance is contingent upon the proportionality clause that has been built in the Directive and therefore legal assistance is not guaranteed for every child suspect or accused. The right to other appropriate assistance is given separate attention in the Directive, which strengthens the child’s legal position and his support during the proceedings.

Harmonization, Regulation and Legislative Competition in European Corporate Law

2002 ◽  
Vol 3 (12) ◽  
Author(s):  
Sebastian Mock
Keyword(s):  
European Community ◽  
Legal System ◽  
Corporate Law ◽  
Common Market ◽  
European Law ◽  
Member States ◽  
National Legal System ◽  
Key Factor ◽  
The Common ◽  
The Creation

The European Community is also a community of Law. Nevertheless the European Community is not focused on the creation of one European Law in contrast to the Laws of its Member States. Instead the European Community focuses on the harmonization of the national legal system only to the extent that is required for the functioning of the common market (art. 3 I h EC). The harmonization of Corporate Law (art. 44 EC) was regarded as a key factor of this process. As a consequence Corporate Law is one of the most harmonized legal fields in the European Community.

scholarly journals Pengaturan Jumlah Minimal Modal Dasar pada Pendirian Perseroan Terbatas

2020 ◽  
Vol 1 (2) ◽  
pp. 320-324
Author(s):  
I Gusti Ayu Manik Maharani ◽  
Desak Gde Dwi Arini ◽  
Luh Putu Suryani
Keyword(s):  
Corporate Law ◽  
Company Law ◽  
Legal Research ◽  
Legal Entity ◽  
Assessment And Evaluation ◽  
Legal Position ◽  
Legal Consequence ◽  
The Government ◽  
Legal Concepts ◽  
Authorized Capital

In Article 33 of the Company Law, regarding the regulation of the capital of a PT, it is determined that at least 25% of the authorized capital in Article 32 of the Company Law must be issued and fully paid. This study aims to determine the regulation of the minimum amount of authorized capital at the establishment of a PT and to find out the consequences of the legal position of a PT established with an amount of authorized capital that is less than the provisions in the Company Law. This study uses a normative legal research method with a statutory approach and legal concepts. The results of the study show that the arrangement of the authorized capital of PT in PP Number 29 of 2019 is contrary to Article 32 paragraph (1). Establishing a PT to obtain a legal entity is not enough by making the Articles of Association of a PT, but it must be submitted for approval to obtain legal entity status. The legal consequence is that PT which has an authorized capital amount is less than the provisions in the Company Law. PT does not have legal entity status because after the deed of establishment or the Articles of Association of the PT has been completed, to obtain legal entity status one must submit an application to the Minister of Law and Human Rights for approval. Through this research, it is hoped that the government will immediately conduct an assessment and evaluation of laws and regulations, especially in the field of corporate law

scholarly journals La crisis de identidad del Derecho societario de la Unión Europea. Comentario al asunto Polbud y a cuestiones derivadas = The identity crisis of the European Union’s Corporate Law. A review on the Polbud case and derivated matters

2020 ◽  
Vol 12 (1) ◽  
pp. 558
Author(s):  
José Antonio González López
Keyword(s):  
Case Law ◽  
Identity Crisis ◽  
Corporate Law ◽  
Freedom Of Establishment ◽  
Member States ◽  
Life And Death ◽  
Eu Member States ◽  
Critical Commentary ◽  
Registered Office ◽  
Real Seat

Resumen: La regulación de la vida y muerte de las sociedades es una cuestión que corresponde a cada uno de los Estados miembros de la UE. Ante un quizás interesado desinterés armonizador, ha sido el TJUE el encargado de solventar en la medida de lo posible los problemas que, a la luz de la libertad de establecimiento, ha suscitado la mencionada falta de interés. En este trabajo se comenta de manera crítica la jurisprudencia del mencionado Tribunal y los problemas que evidencia. Tales problemas son, en esencia, las contradicciones entre las regulaciones societarias laxas y estrictas de los diferentes Estados miembros y la gran contradicción: las dos teorías contrapuestas para la determinación de la lex societatis que conviven en territorio europeo.Palabras clave: domicilio social, traslado, sede real, incorporación, empresa, compañía.Abstract: The regulation of life and death of companies is a competence of each EU member states. Due to a lack of interest in harmonizing, the CJEU has been in charge of solving the conflict between the freedom of establishment and the mentioned lack of interest. This paper contains a critical commentary of the case law of the CJEU and the problems that it shows. Such problems are basically the contradictions between the lax and strict corporate regulations of the different Member States and, also, the great contradiction: the two opposed theories for the regulation of the lex societatis that coexist in European territory.Keywords: registered office, transfer, real seat, incorporation, enterprise, company.

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