Lack of one consistent European choice of law rule for companies

The non-formulation of one consistent European choice-of-law rule for companies doesn’t mean that the TFEU lacks all impact on the Member States’ conflicts systems, quite the contrary. In its case - law, the ECJ has been able to develop a consistent interpretation of the effects which the joint reading of Articles 49 and 54 TFEU has on the Member States’ rules of international company law, and on their application in a number of particular circumstances.

Unsurprisingly, the Member States which have adopted the incorporation doctrine will satisfy the Treaty requirements more easily than those sticking to the real seat-theory. Still, in spite of the many pleas to the ECJ to condemn the latter theory as incompatible with the requirements of the internal market, and the sometimes brash remarks that the ECJ had finally done so, the real seat-theory still survives as a legally valid choice-of-law approach for EU-Member States, albeit in a unilateral form (Überseering). Of course, legal validation mustn’t be equated with the expression of support for such rule; nor should it necessarily be understood as a validation of the ways in which this theory is applied.The application of the real seat-theory in particular has indeed been made subject to a number of strict requirements. The same is true however for the incorporation theory; yet, due to the specific nature of the latter theory, it is more rare that these requirements are touched upon in concrete cases submitted to the ECJ and/or the Member State courts.


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