1. Private International Law Sciences Po Paris Spring 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 Brussels I, art 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
English
German
Italian
Danish
Swedish
Rome Convention
Central administration
Hauptniederlassung
Amministrazione centrale
Hovedsete
Draft Rome I
Principal establishment
Hauptverwaltung
Hovedforretningssted
Hovedkontor
Rome I

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 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

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