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Private International Law Sciences Po Paris Spring 2017

Private International Law Sciences Po Paris Spring 2017. PIL for company law Giuditta Cordero-Moss, Ph.D., Dr.Juris Professor, Oslo University. Forum I. Company registered in England Has branch in Norway The branch purchases goods from a Norwegian company Delivery is to be made in England

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Private International Law Sciences Po Paris Spring 2017

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  1. Private International LawSciences Po ParisSpring 2017 PIL for company law Giuditta Cordero-Moss, Ph.D., Dr.Juris Professor, Oslo University

  2. Forum I • Company registered in England • Has branch in Norway • The branch purchases goods from a Norwegian company • Delivery is to be made in England • A dispute arises on the performance of the contract, the seller sues the buyer • Which court is competent?

  3. Forum II • Company registered in England • Has branch in Norway • The branch purchases goods from a Norwegian company • The contract requires consent by the purchaser’s board of directors • A dispute arises on the validity of the board decision • Which court is competent?

  4. Qualification I • Disputes on performance of a contract : relate to contract • Defendant’s forum • Place of performance • Place of branch • Agreed forum

  5. Qualification II • Disputes on validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, • or the validity of the decisions of their organs: relate to company law

  6. Forum for company law • Art. 24.2 Brussels I, art. 22.2 Lugano: • Exclusive jurisdiction • The courts of the state where the company has its seat • Where the seat is, is determined by the PIL of the court

  7. Difference domicile/seat • Art. 4, 63 Brussels I; art 2, 60 Lugano: General rule: • Defendant’s forum • (a) statutory seat; • (b) central administration; or • (c) principal place of business. • Art. 7.5 Brussels I, art 5.5 Lugano: Additional forum: • Place where the branch is situated • Art. 24.2 Brussels I, art. 22.2 Lugano: connecting factor for company law: • Company’ seat • Determined according to PIL of lex fori

  8. Additional connecting factor: habitual residence • Place of central administration • Where branch is situated • Art. 19 Rome I: contract law • Art 23 Rome II art 23: tort law

  9. Inconsistent terminology

  10. Seat as connecting factor • Place of incorporation • England • Denmark • Sweden • Germany within EU • Italy • Main place of business • Germany outside EU

  11. EU law Freedom of establishment National law determines condition for company’s continued existence Country of incorporation may require liquidation if the company moves out C-81/87 (Daily Mail) C-210/06 (Cartesio) C-371/10 (National Grid) E-15/11 (Arcade) The criteria must be objective and verifiable E-15/11 (Arcade) • Country of destination may not require that a company incrporated in EU complies with local requirements • C-208/00 (Überseering) • C-167(01 (Inspire Art) • C-212/97 (Centros)

  12. Incorporation theory to be preferred • “Objective and verifiable criteria” • Predictable • Does not require renvoi

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