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 A dispute arises on the performance of the contract, the seller sues the buyer Which court is competent?

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?

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

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

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

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

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

Inconsistent terminology English German Italian Danish Swedish Rome Convention Central administration Hauptniederlassung Amministrazione centrale Hovedsete Draft Rome I Principal establishment Hauptverwaltung Hovedforretningssted Hovedkontor Rome I

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

EU law Freedom of establishment National law determines condition for company’s continued existence 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) 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

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