In the U.S., corporations can be incorporated in any of the 50 states and can “reincorporate” afterwards in any other state. However, the competence of the state where a company is incorporated is limited: on the one hand, it is restricted by federal laws and, on the other hand, it regulates only the “internal affairs” of corporate activities. Consequently, in the U.S. reincorporations are a relatively easy task, since they only shift rules that address the shareholders - board relation, while creditors and other stakeholders are not affected.In the E.U., we find a partially similar scenario. In the last decade, the European Court of Justice has liberalized initial incorporations and in 2005 the cross-border directive has opened the doors to freedom of reincorporation from one member state to another. In the E.U., reincorporations have a much different impact than on the other side of the Atlantic, since the agency problems between shareholders and the board are bundled with the agency problems between shareholders and creditors, all being in the competence of the member state of incorporation. In the E.U., therefore, any change of the applicable corporate law risks to jeopardize creditors. Sophisticated creditors will discount this risk from the credit rate or will protect themselves through specific covenant, but non-sophisticated creditors will bear entirely the risk of opportunistic reincorporations. For this reason, many E.U. member states provide mechanisms for creditors’ protection in case of reincorporation, often by requiring the debtor to give a security or to pay the debts that are not yet due. These mechanisms are aimed at avoiding negative externalities, yet they make reincorporations more expensive and will impede a certain number of efficient transactions.
在美国，公司可以在50个州中的任何一个州注册，之后可以在任何其他州“重新注册”。然而，公司注册地所在州的权限是有限的:一方面，它受到联邦法律的限制，另一方面，它只规范公司活动的“内部事务”。因此，在美国，重组公司是一项相对容易的任务，因为它们只改变了处理股东-董事会关系的规则，而债权人和其他利益相关者不受影响。在欧盟，我们发现了部分类似的情况。在过去十年中，欧洲法院(European Court of Justice)放开了最初的合并，2005年的跨境指令为成员国之间重新合并的自由打开了大门。在欧盟，公司重组的影响与大西洋彼岸大不相同，因为股东和董事会之间的代理问题与股东和债权人之间的代理问题捆绑在一起，所有这些都在公司成立成员国的职权范围内。因此，在欧盟，适用公司法的任何变化都有可能危及债权人。成熟的债权人将从信贷利率上贴现这种风险，或通过特定的契约保护自己，但不成熟的债权人将完全承担机会主义重组的风险。出于这个原因，许多欧盟成员国在重组的情况下提供了债权人保护机制，通常是要求债务人提供担保或支付尚未到期的债务。这些机制的目的是避免负面的外部性，但它们使合并成本更高，并将阻碍一定数量的有效交易。
{"title":"The Function of Corporate Law and the Effects of Reincorporations in the U.S. and the E.U.","authors":"F. Mucciarelli","doi":"10.2139/SSRN.1919231","DOIUrl":"https://doi.org/10.2139/SSRN.1919231","url":null,"abstract":"In the U.S., corporations can be incorporated in any of the 50 states and can “reincorporate” afterwards in any other state. However, the competence of the state where a company is incorporated is limited: on the one hand, it is restricted by federal laws and, on the other hand, it regulates only the “internal affairs” of corporate activities. Consequently, in the U.S. reincorporations are a relatively easy task, since they only shift rules that address the shareholders - board relation, while creditors and other stakeholders are not affected.In the E.U., we find a partially similar scenario. In the last decade, the European Court of Justice has liberalized initial incorporations and in 2005 the cross-border directive has opened the doors to freedom of reincorporation from one member state to another. In the E.U., reincorporations have a much different impact than on the other side of the Atlantic, since the agency problems between shareholders and the board are bundled with the agency problems between shareholders and creditors, all being in the competence of the member state of incorporation. In the E.U., therefore, any change of the applicable corporate law risks to jeopardize creditors. Sophisticated creditors will discount this risk from the credit rate or will protect themselves through specific covenant, but non-sophisticated creditors will bear entirely the risk of opportunistic reincorporations. For this reason, many E.U. member states provide mechanisms for creditors’ protection in case of reincorporation, often by requiring the debtor to give a security or to pay the debts that are not yet due. These mechanisms are aimed at avoiding negative externalities, yet they make reincorporations more expensive and will impede a certain number of efficient transactions.","PeriodicalId":254312,"journal":{"name":"Tulane Journal of International and Comparative Law","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133550755","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}
From Kurds in Afghanistan to Muslims in the Philippines, we live in a world in which normative obligations do not always follow political boundaries. For a variety of political, economic, and social reasons, people sometimes find themselves residents of a state they neither helped create nor voluntarily joined. What allegiance do such people owe to the legal systems of the states to which they belong? Should they be permitted to adopt and follow proprietary legal codes that conform to cultural norms but exist distinct from national jurisprudential schemes? As nations throughout the world struggle to find plural solutions to normative conflict, these questions are of vital importance to subnational and supranational legal regimes. In this Article, I explore these issues by drawing on legal pluralism as a methodology to analyze subnational normative conflict. I do so by engaging in a case study of the Philippines, a country which has been a hotbed of conflict for more than 400 years. I first address the mechanisms employed by Spanish and American colonizers in responding to normative conflict in Mindanao and the Sulu Archipelago. I then proceed to a discussion of the steps taken by the Philippine government to formally recognize Muslim normative obligations, including the adoption of Presidential Decree 1083, the Muslim Code of Personal Laws. Finally, I review the Philippine government’s approach to legal hybridity in the context of four practices identified by Paul Schiff Berman in Global Legal Pluralism: dialectical discourse, margins of appreciation, jurisdictional redundancy, and limited autonomy regimes. I conclude by suggesting that the Philippine government’s approach, though less than fully realized, models the possible benefits of pluralism in a normatively complex and contentious hybrid society.
{"title":"Legal Hybridity in the Philippines: Lessons in Legal Pluralism from Mindanao and the Sulu Archipelago","authors":"Justin G. Holbrook","doi":"10.2139/SSRN.1486169","DOIUrl":"https://doi.org/10.2139/SSRN.1486169","url":null,"abstract":"From Kurds in Afghanistan to Muslims in the Philippines, we live in a world in which normative obligations do not always follow political boundaries. For a variety of political, economic, and social reasons, people sometimes find themselves residents of a state they neither helped create nor voluntarily joined. What allegiance do such people owe to the legal systems of the states to which they belong? Should they be permitted to adopt and follow proprietary legal codes that conform to cultural norms but exist distinct from national jurisprudential schemes? As nations throughout the world struggle to find plural solutions to normative conflict, these questions are of vital importance to subnational and supranational legal regimes. In this Article, I explore these issues by drawing on legal pluralism as a methodology to analyze subnational normative conflict. I do so by engaging in a case study of the Philippines, a country which has been a hotbed of conflict for more than 400 years. I first address the mechanisms employed by Spanish and American colonizers in responding to normative conflict in Mindanao and the Sulu Archipelago. I then proceed to a discussion of the steps taken by the Philippine government to formally recognize Muslim normative obligations, including the adoption of Presidential Decree 1083, the Muslim Code of Personal Laws. Finally, I review the Philippine government’s approach to legal hybridity in the context of four practices identified by Paul Schiff Berman in Global Legal Pluralism: dialectical discourse, margins of appreciation, jurisdictional redundancy, and limited autonomy regimes. I conclude by suggesting that the Philippine government’s approach, though less than fully realized, models the possible benefits of pluralism in a normatively complex and contentious hybrid society.","PeriodicalId":254312,"journal":{"name":"Tulane Journal of International and Comparative Law","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130457164","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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