This thesis addresses the theoretical and legal foundations for choice of corporate law in the European Union. In particular, it evaluates the contractarian approach to choice of law, which has become the dominant paradigm. When contractual principle is viewed in its fullest form, it is found that corporate choice of law could be restricted for similar reasons to those which justify limitations to party autonomy in contractual choice of law. What is more, economic arguments for party autonomy should be refined in view of the fact that corporate legal theory is unsettled. Indeed, different views about the economic nature of companies are accounted for in State practice. Having rejected dogmatic approaches to the private international law of companies, it is then found that the EU Treaties contain contradictory signals about the place of party autonomy in choice of corporate law. The lack of clarity in the Treaties and lack of legislative progress has necessitated recourse to the European Court of Justice. The Court has, generally, adopted an interpretation of the Treaty which furthered economic integration. However, the judgments reveal numerous inconsistencies, and the law is in a constant state of flux. Added to the fact that the EU’s legislation is less permissive than the Court’s judgments, the law lacks clarity. Legislation is therefore needed. It is suggested that future legislation should entrench a degree of autonomy, but should also account for the fact that States differ on the goals of companies. While the law of the State of incorporation should govern all matters relating to the company’s internal law, European law should bind the Member State in which a company is established to require pseudo-foreign companies to incorporate norms of the State of its real seat in their statutes. This could be supported through the use of information technology solutions which have been pioneered in other fora.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:542620 |
| Date | January 2010 |
| Creators | Borg-Barthet, Justin |
| Publisher | University of Aberdeen |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=167398 |
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