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How Does Corporate Mobility Affect Lawmaking?
A Comparative Analysis
William W. Bratton, Joseph A. McCahery and Erik P.M. Vermeulen
Abstract
This paper examines the impact of increased corporate mobility on corporate
lawmaking in the European Union (EU). More specifically, we seek an answer to a
simple question: Has the increased mobility which arose from the implementation
of the Societas Europaea (SE) and the path-breaking decisions of the European
Court of Justice (ECJ) led to an outbreak of regulatory competition and the
emergence of a Delaware-like member state in Europe? Two types of corporate
mobility are distinguished: (1) the incorporation mobility of start up firms and (2)
the reincorporation mobility of established firms. As to incorporation mobility, the
Centros triad of cases makes it possible for start-up firms to incorporate in a
foreign jurisdiction. Many entrepreneurs have taken advantage of this new freedom
of establishment. However, recent data from Germany and The Netherlands
indicate declining numbers of such foreign incorporations over time. Moreover,
Centros-based incorporation mobility is a rather trivial phenomenon, economically
speaking. The actors in question seek only to minimize costs of incorporation.
National lawmakers have been responding, amending their statutes to lower these
costs. But, because out of pocket cost minimization at the organization stage
operates as only a secondary motivation of ‘choice-of-business-form’ decisions,
there arise no competitive pressures that cause national legislatures to engage in
thorough-going reform addressed to corporate governance more generally. As to
reincorporation mobility, which concerns the migration of the statutory seat of a
firm incorporated in one member state to another member state, the SE has opened
the door, but not widely enough to serve as a catalyst for company law arbitrage.
Reincorporation mobility is still far from generally available in the EU. As a result,
competitive pressures do not yet motivate changes in the fundamental governance
provisions of national corporate law regi
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