Contributors Table of Contents
Arkadiusz Radwan
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:
The last factor shall be the main focus of our book project.
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Contributors Table of Contents
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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Contributors Table of Contents
Trying to provide broad coverage, both substantially and internationally, we want at the same time to avoid a typical handbook structure. Instead we adopt a problem-oriented approach highlighting mainly the issues which already have been or are likely to be subject to the Europe-wide debate. Our book shall addresses most of the problems as raised by the High Level Group of Company Law Experts, except for Law Related to Group of Companies, which will be only discussed briefly. We believe, that it would go beyond the scope of the proposed book, to comprehensively discuss whether or notthere is a need for Community action with respect to the law relating to groups of companies. At the same time we want to discuss in detail many other group-relevant issues, like wrongful trading, minority rights, squeeze-outs, etc.
Our work will inevitably be strongly comparative and purposefully functional in its approach. Combining these two angles we will tend to see not only differences, but also similarities between particular jurisdictions, although these similarities may not be obvious at first.
We will refrain from formulating far-reaching policy objectives. This will be difficult to achieve given the number of authors involved and the scope of the emerging book. However, we believe that this working experience gathered through such broad international involvement will facilitate further cooperation and lay the foundation for a more active engagement of Scholars and Practitioners from New Members States in the discussion of the future of European Company Law.
All these strengthens us in the conviction that a comprehensive study of Post-enlargement Company Law Geography is badly needed. There is a remarkable gap in the international debate as regards the new EU Member States and Membership Candidates. This book shall attempt to close the gap to some extent.
