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Disputes in Company Law: Jurisdictional Challenges in Private International Law

Explore complex jurisdictional issues in international company law disputes, including court competence, contract performance, and validity challenges. Learn about key connecting factors and applicable laws to navigate legal complexities effectively.

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Disputes in Company Law: Jurisdictional Challenges in Private International Law

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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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