Cross-Border Mergers and Reincorporations in the EU: An Essay on the Uncertain Features of Companies´ Mobility

Cross-border mergers were made feasible in 2005 through the enactment of a specific Directive. In the wake of this directive, companies have been given a relatively neat regulatory framework for merging with other entities incorporated in the EU. Cross-border mergers can also be vehicles for mere reincorporations, when a company establishes a new entity in the target country and merges into it, with the practical result of converting into a company type of the targeted jurisdiction. In a cross-border merger, however, several hidden obstacles might emerge, due to the different regulatory frameworks involved and the discrepancies that may arise regarding the required documents or the procedural timing according to the law of the countries involved. Such discrepancies are, to a certain extent, unavoidable as they also hinge upon nation-specific scholarly and judiciary formants. In practical terms, differences as to regulatory frameworks and language-specific discrepancies risk reducing legal certainty and increasing transaction costs. Therefore, cross-border mergers seem to be a suitable vehicle for re-incorporations of big companies, while small enterprises are likely to find this mechanism burdensome or timeconsuming

The costs of separation: friction between company and insolvency law in the single market

Corporate mobility and choice of law within the EU has dominated much of the academic writing in European company law over the last decades. What has not yet received much attention is the way in which national company law interacts with and depends on features of the national legal system outside of company law. In this article we explore this interaction and its relevance for coherent national regulatory systems. Using the regulatory framework for companies in the ‘vicinity of insolvency’ as an example, we show how choice of company law can create both regulatory gaps and multiplication of legal requirements, as private international law rules are applied inconsistently across Europe. More importantly, however, we show that even consistent application of conflicts rules would fail to resolve these problems due to cross-doctrinal interdependence within any national legal system. We conclude that this is a design flaw in the way EU law deals with the increasingly international reach of corporations, and discuss possible paths for resolving or mitigating this issue

Determinants of corporate governance codes

Corporate governance codes are an increasingly prominent feature of the regulatory landscape in many countries, yet remarkably little is known about the determinants of corporate governance reform. Potential determinants include: (1) the diffusion of an international benchmark model of good governance; (2) a country’s legal system; (3) the desire to attract foreign investors; and (4) the influence of interest groups. I construct a proxy for the investor-friendliness of 52 corporate governance codes of different jurisdictions and collect data on the code issuers. I find strong evidence that the drafters of codes emulate international benchmark models and that jurisdictions belonging to different legal traditions use different regulatory strategies, some evidence that portfolio equity inflows are associated with the investor-friendliness of codes, and no evidence that interest groups succeed in affecting rules. The article suggests a method for the modeling of legal evolution, convergence, and the political economy of corporate governance codes

Cross-Border Mergers and Cross-Border Takeovers Compared

The EU rules on cross-border mergers provide a legal framework for the aggregation of firms across the borders of EU Member States (Directive (EU) 2017/1132). These rules are not alone in pursuing this aim, as the takeover bid directive (Directive 2004/25/EC) also contributes to fostering cross-border combinations of European firms. While grounded on comparable regulatory aims, the two set of rules display remarkable differences. These are only in part a direct consequence of the fact that, in cross-border mergers, previously separate companies become a single legal entity, while this is not the case with cross-border takeovers. This chapter offers a comparative analysis of some of these differences and explores their rationale and their consequences on investor protection. The analysis includes the board’s role, shareholder information and collective decision-making, as well as shareholder exit rights

Takeover Bids European Law and Corporate Governance

Le norme relative all'offerta pubblica d'acquisto (OPA) sono pacificamente considerate un elemento centrale nel dibattito in tema di corporate governance. Il rischio di un'OPA – e del conseguente avvicendamento nel controllo della società – dovrebbero motivare gli amministratori ad agire nel miglio interesse degli azionisti (c.d. disciplinary mechanism). Le norme europee sull'OPA sono dettate nella Direttiva 2004/25/EC, che trova applicazione alle offerte di strumenti finanziari di emittenti assoggettati agli ordinamenti degli Stati Membri. Il lavoro analizza le regole europee sull'OPA, sottolineando le diverse scelte di attuazione compiute, ove possibile, dai singoli Stati Membri. Il lavoro si occupa inoltre del processo di riforma della Direttiva che dovrebbe basarsi, innanzitutto, sui vantaggi e gli svantaggi dell'applicazione della Direttiva registrati dal 2004 ad oggi.The rules on takeover bids are generally considered to be an important factor within the debate on corporate governance. The risk of a takeover bid – and of a consequent change in company control – should motivate a company’s board to act in the best interests of the shareholders (the so-called disciplinary mechanism). The European rules on takeover bids are enshrined in Directive 2004/25/EC (which is also known as the Thirteenth Directive on Company Law), which applies to bids for securities of companies (issuers) governed by the laws of Member States. This chapter analyses the European rules on takeover bids, and highlights certain national options for implementing the Directive, although a revision of the European Directive, which will be based, among other things, on an examination of the advantages and disadvantages of its application, has been under way since 2004. The chapter also considers the revisions currently being proposed by the European Commission and the European Parliament