{"title":"Editorial: The World Is Changing","authors":"M. Olaerts, Bastiaan Kemp","doi":"10.54648/eucl2023004","DOIUrl":"https://doi.org/10.54648/eucl2023004","url":null,"abstract":"","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":"237 ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41330228","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The German supply chain law ( Lieferkettensorgfaltspflichtengesetz, abbreviated: LkSG) which enters into force on 1 January 2023 is part of the developing legal framework for human rights in global supply chains. Like the French vigilance law, it represents a new generation of supply chain laws which impose mandatory human rights due diligence obligations. The LkSG requires enterprises to exercise a number of due diligence obligations – from conducting risk analysis to undertaking preventive measures or remedial actions. The law is based on public enforcement via a competent authority, the Federal Office for Economic Affairs and Export Control (BAFA). The BAFA monitors and enforces compliance with the due diligence obligations. Non-compliant enterprises can be fined with up to 800,000 Euros and, in some cases, up to 2% of the annual turnover. Whilst the LkSG is an important step towards achieving greater corporate sustainability, it also has limitations. It was a political compromise and, as such, it does not include a new civil liability for non-compliance. Moreover, by default, it only applies to the enterprise’s own business area and its direct suppliers, whereas indirect suppliers are only included where the enterprise has substantiated knowledge that an obligation has been violated. Supply chain law, Germany, Lieferkettensorgfaltspflichtengesetz, LkSG, business, human rights, home state laws, human rights due diligence, UN Guiding Principles
{"title":"Article: The German Supply Chain Law: A First Step Towards More Corporate Sustainability","authors":"Andreas Rühmkorf","doi":"10.54648/eucl2023003","DOIUrl":"https://doi.org/10.54648/eucl2023003","url":null,"abstract":"The German supply chain law ( Lieferkettensorgfaltspflichtengesetz, abbreviated: LkSG) which enters into force on 1 January 2023 is part of the developing legal framework for human rights in global supply chains. Like the French vigilance law, it represents a new generation of supply chain laws which impose mandatory human rights due diligence obligations. The LkSG requires enterprises to exercise a number of due diligence obligations – from conducting risk analysis to undertaking preventive measures or remedial actions. The law is based on public enforcement via a competent authority, the Federal Office for Economic Affairs and Export Control (BAFA). The BAFA monitors and enforces compliance with the due diligence obligations. Non-compliant enterprises can be fined with up to 800,000 Euros and, in some cases, up to 2% of the annual turnover. Whilst the LkSG is an important step towards achieving greater corporate sustainability, it also has limitations. It was a political compromise and, as such, it does not include a new civil liability for non-compliance. Moreover, by default, it only applies to the enterprise’s own business area and its direct suppliers, whereas indirect suppliers are only included where the enterprise has substantiated knowledge that an obligation has been violated.\u0000Supply chain law, Germany, Lieferkettensorgfaltspflichtengesetz, LkSG, business, human rights, home state laws, human rights due diligence, UN Guiding Principles","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42611364","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 1–3 June 2022, the Common European Law on Investment Screening (CELIS) Institute organized its fourth annual conference ‘2022 CELIS Forum on Investment Screening’ (CFIS22). The Conference was held in Sweden, at Uppsala University. The CELIS Institute is an independent non-profit, non-partisan research enterprise dedicated to promoting better regulation of foreign investments in the context of security, public order, and competitiveness. It was set up in 2020 by Steffen Hindelang and J. Hillebrand Pohl, the convenors of this year’s conference, as a permanent successor to the ‘International Conference on a Common European Law on Investment Screening (CELIS)’, convened by Professor Hindelang and Andreas Moberg in 2019. The aim of CFIS 22 was to debate European investment screening on national security grounds from a strategic perspective on the theme ‘The Emerging Law of Investment Control in Europe: Screening, Sanctions and Subsidies’. CFIS was a major event which brought together, not just leading academic scholars, EU officials, national experts, diplomats, and policymakers, but also business leaders, think tankers, and representatives of the investment community and civil society, as well as the media from across Europe and beyond. The three-day event was generously funded by Riksbankens jubileumsfond, the Center for International Private Enterprise, the Swedish Institute of International Law, Datenna, Blomstein, and the Institute for Democracy Societas investment screening, foreign investments, CELIS, FDI, ESG, national security, public order, sovereign-driven investment.
{"title":"Article: Report on the CELIS Forum on Investment Screening","authors":"S. Hindelang","doi":"10.54648/eucl2023002","DOIUrl":"https://doi.org/10.54648/eucl2023002","url":null,"abstract":"On 1–3 June 2022, the Common European Law on Investment Screening (CELIS) Institute organized its fourth annual conference ‘2022 CELIS Forum on Investment Screening’ (CFIS22). The Conference was held in Sweden, at Uppsala University. The CELIS Institute is an independent non-profit, non-partisan research enterprise dedicated to promoting better regulation of foreign investments in the context of security, public order, and competitiveness. It was set up in 2020 by Steffen Hindelang and J. Hillebrand Pohl, the convenors of this year’s conference, as a permanent successor to the ‘International Conference on a Common European Law on Investment Screening (CELIS)’, convened by Professor Hindelang and Andreas Moberg in 2019. The aim of CFIS 22 was to debate European investment screening on national security grounds from a strategic perspective on the theme ‘The Emerging Law of Investment Control in Europe: Screening, Sanctions and Subsidies’. CFIS was a major event which brought together, not just leading academic scholars, EU officials, national experts, diplomats, and policymakers, but also business leaders, think tankers, and representatives of the investment community and civil society, as well as the media from across Europe and beyond. The three-day event was generously funded by Riksbankens jubileumsfond, the Center for International Private Enterprise, the Swedish Institute of International Law, Datenna, Blomstein, and the Institute for Democracy Societas\u0000investment screening, foreign investments, CELIS, FDI, ESG, national security, public order, sovereign-driven investment.","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45839687","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article attempts to answer the question whether the distinction between public and private companies is still needed or whether it is outdated. The question will be answered from an EU perspective, while taking the Dutch legal system as a leading example. In the Netherlands, there was a huge time-gap between the introduction of the public company in 1811 and the introduction of the private company in 1971, 160 years later. This seems to justify the question whether we needed the private company at all. Public company, private company, minimum capital requirement, capital maintenance rules, bearer shares, registered shares
{"title":"Article: The Age-Old Distinction Between Public and Private Limited Liability Companies: Should It Stay or Should It Go?: A figment of academics’ imaginations","authors":"H. van Delft, S. Renssen","doi":"10.54648/eucl2023001","DOIUrl":"https://doi.org/10.54648/eucl2023001","url":null,"abstract":"This article attempts to answer the question whether the distinction between public and private companies is still needed or whether it is outdated. The question will be answered from an EU perspective, while taking the Dutch legal system as a leading example. In the Netherlands, there was a huge time-gap between the introduction of the public company in 1811 and the introduction of the private company in 1971, 160 years later. This seems to justify the question whether we needed the private company at all.\u0000Public company, private company, minimum capital requirement, capital maintenance rules, bearer shares, registered shares","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42455640","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 13 October 2022, a broad amendment to the Polish Commercial Companies Code (KSH) entered into force. Under this amendment, the term ‘group of companies’ covers a controlling company and a subsidiary company or companies that are capital companies, following the resolution on participation in the group by a qualified majority of ¾ of the votes of the shareholders’ meeting of the subsidiary company. His means that the will of the companies participating in the group decides whether to apply this new regulation: it does not work ex lege, but ex contractu. binding instructions by a controlling company, groups of companies, interest of a group of companies and interest of a subsidiary company
{"title":"New Group of Companies Law in Poland","authors":"Aleksandra Sikorska-Lewandowska","doi":"10.54648/eucl2022025","DOIUrl":"https://doi.org/10.54648/eucl2022025","url":null,"abstract":"On 13 October 2022, a broad amendment to the Polish Commercial Companies Code (KSH) entered into force. Under this amendment, the term ‘group of companies’ covers a controlling company and a subsidiary company or companies that are capital companies, following the resolution on participation in the group by a qualified majority of ¾ of the votes of the shareholders’ meeting of the subsidiary company. His means that the will of the companies participating in the group decides whether to apply this new regulation: it does not work ex lege, but ex contractu.\u0000binding instructions by a controlling company, groups of companies, interest of a group of companies and interest of a subsidiary company","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42302665","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recent amendments to the Italian Law of Civil Procedure (‘ICCP’) have not removed the existing ban on intra-corporate dispute (‘ICD’) arbitration for Italian listed companies. As we believe that ICD arbitration can provide redress to shareholders and improve management accountability, we criticize this approach and develop a ‘model’ for ICD arbitration that brings together (1) the corporate governance perspective, for a proper balance between the flexibility of the adoption of the arbitration clause and the protection of minority shareholders; (2) the capital markets perspective, for the disclosure to the public of relevant information in order to protect investors and build trust; and (3) the arbitration perspective, for the adoption of specific rules (a) to allow the participation of a potential great number of parties to the procedure, (b) to ensure the appointment of qualified and independent arbitrators in a typical multi-party dispute, and (c) to ensure that arbitrators may adopt conservatory and interim measures. Finally, we suggest that it might be beneficial to promote such model also at the EU level, as such benefit would be, at least, two-fold, both in terms of harmonization (or, better, level playing field) of the corporate law enforcement mechanisms and of serving the purposes to which recent EU corporate legislation seems to be leading. Corporate Arbitration, Listed Companies, Intra-Corporate Disputes
{"title":"Corporate Arbitration and Listed Companies: A Nice Couple in Capital Markets? The Case of Italy and a European Perspective","authors":"Valentina Allotti, Federico Raffaele","doi":"10.54648/eucl2022026","DOIUrl":"https://doi.org/10.54648/eucl2022026","url":null,"abstract":"Recent amendments to the Italian Law of Civil Procedure (‘ICCP’) have not removed the existing ban on intra-corporate dispute (‘ICD’) arbitration for Italian listed companies. As we believe that ICD arbitration can provide redress to shareholders and improve management accountability, we criticize this approach and develop a ‘model’ for ICD arbitration that brings together (1) the corporate governance perspective, for a proper balance between the flexibility of the adoption of the arbitration clause and the protection of minority shareholders; (2) the capital markets perspective, for the disclosure to the public of relevant information in order to protect investors and build trust; and (3) the arbitration perspective, for the adoption of specific rules (a) to allow the participation of a potential great number of parties to the procedure, (b) to ensure the appointment of qualified and independent arbitrators in a typical multi-party dispute, and (c) to ensure that arbitrators may adopt conservatory and interim measures. Finally, we suggest that it might be beneficial to promote such model also at the EU level, as such benefit would be, at least, two-fold, both in terms of harmonization (or, better, level playing field) of the corporate law enforcement mechanisms and of serving the purposes to which recent EU corporate legislation seems to be leading.\u0000Corporate Arbitration, Listed Companies, Intra-Corporate Disputes","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49195250","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Editorial: Two Ethical Questions for Corporate Lawyers","authors":"S. M. Bartman","doi":"10.54648/eucl2022024","DOIUrl":"https://doi.org/10.54648/eucl2022024","url":null,"abstract":"","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48295515","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Editorial: The Transformation of Corporate Governance","authors":"A.F.M. Dorresteijn","doi":"10.54648/eucl2022020","DOIUrl":"https://doi.org/10.54648/eucl2022020","url":null,"abstract":"","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41666019","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article analyses the different legal concepts of ‘seat’ and ‘registered office’ in Cyprus company law. The distinction between the concepts of ‘seat’ and ‘registered office’ in Cyprus company law is very important for the definition of corporate investor in respect of the Republic of Cyprus as a contracting party in several extra-EU Bilateral Investment Treaties (BITs). Although Cyprus is an incorporation theory jurisdiction with the ‘registered office’ as the connecting factor, the legal concept of ‘seat’ is also used in Cyprus company law with a different meaning than ‘registered office’. The Cyprus legislature uses explicitly the legal concept of ‘seat’ in Cyprus Companies Law (Chapter 113-Cap. 113) and is not restricted only to the legal concept of ‘registered office’. The difference between the legal concepts of ‘seat’ and ‘registered office’ in Cyprus company law is underpinned by an analysis of Cyprus Companies Law (Chapter 113-Cap. 113), where the notion of ‘seat’ appears with a different meaning than the notion of ‘registered office’, and by the distinguishing nature of Cyprus law as a mixed legal system, which combines characteristics of both common law and continental civil law. Continental law notions, such as ‘seat’, are compatible with the mixed legal system of Cyprus. This distinction between the concepts of ‘seat’ and ‘registered office’ is also supported by arguments deriving from the implementation of the European Company (Societas Europaea (SE)) Statute in Cyprus. The adoption in Cyprus company law of both legal concepts of ‘registered office’ and ‘seat’ but with different meanings is also compatible with the EU fundamental freedom of establishment (Articles 49–54 Treaty on the Functioning of the European Union (TFEU)). Bilateral Investment Treaties, Cyprus company law, registered office, seat
{"title":"The Different Legal Concepts of ‘Seat’ and ‘Registered Office’ in Cyprus Company Law","authors":"Thomas Papadopoulos","doi":"10.54648/eucl2022022","DOIUrl":"https://doi.org/10.54648/eucl2022022","url":null,"abstract":"This article analyses the different legal concepts of ‘seat’ and ‘registered office’ in Cyprus company law. The distinction between the concepts of ‘seat’ and ‘registered office’ in Cyprus company law is very important for the definition of corporate investor in respect of the Republic of Cyprus as a contracting party in several extra-EU Bilateral Investment Treaties (BITs). Although Cyprus is an incorporation theory jurisdiction with the ‘registered office’ as the connecting factor, the legal concept of ‘seat’ is also used in Cyprus company law with a different meaning than ‘registered office’. The Cyprus legislature uses explicitly the legal concept of ‘seat’ in Cyprus Companies Law (Chapter 113-Cap. 113) and is not restricted only to the legal concept of ‘registered office’. The difference between the legal concepts of ‘seat’ and ‘registered office’ in Cyprus company law is underpinned by an analysis of Cyprus Companies Law (Chapter 113-Cap. 113), where the notion of ‘seat’ appears with a different meaning than the notion of ‘registered office’, and by the distinguishing nature of Cyprus law as a mixed legal system, which combines characteristics of both common law and continental civil law. Continental law notions, such as ‘seat’, are compatible with the mixed legal system of Cyprus. This distinction between the concepts of ‘seat’ and ‘registered office’ is also supported by arguments deriving from the implementation of the European Company (Societas Europaea (SE)) Statute in Cyprus. The adoption in Cyprus company law of both legal concepts of ‘registered office’ and ‘seat’ but with different meanings is also compatible with the EU fundamental freedom of establishment (Articles 49–54 Treaty on the Functioning of the European Union (TFEU)).\u0000Bilateral Investment Treaties, Cyprus company law, registered office, seat","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47012787","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The new proposal for a Corporate Sustainability Due Diligence Directive (CSDDD) will require that certain parent companies must conduct due diligence in their subsidiaries. To comply a parent company needs to determine which subsidiaries are covered by these duties, how to conduct this due diligence and finally how it may be enforced by stakeholders in the subsidiaries. An analysis of the proposal shows that the answer to these very relevant questions is not always straightforward nor are the solutions chosen in the proposal always the most optimal. Furthermore, it seems likely that the proposed directive – if adopted – will affect how groups are structured and how they operate. corporate groups, Corporate Sustainability Due Diligence Directive, parent and subsidiary companies
{"title":"Corporate Sustainability Due Diligence in Groups of Companies","authors":"Karsten Engsig Sørensen","doi":"10.54648/eucl2022021","DOIUrl":"https://doi.org/10.54648/eucl2022021","url":null,"abstract":"The new proposal for a Corporate Sustainability Due Diligence Directive (CSDDD) will require that certain parent companies must conduct due diligence in their subsidiaries. To comply a parent company needs to determine which subsidiaries are covered by these duties, how to conduct this due diligence and finally how it may be enforced by stakeholders in the subsidiaries. An analysis of the proposal shows that the answer to these very relevant questions is not always straightforward nor are the solutions chosen in the proposal always the most optimal. Furthermore, it seems likely that the proposed directive – if adopted – will affect how groups are structured and how they operate.\u0000corporate groups, Corporate Sustainability Due Diligence Directive, parent and subsidiary companies","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44564972","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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