SEAT OF THE COMPANY IN PRIVATE INTERNATIONAL LAW SELECTED ISSUES

ISBN: 978-83-232-3290-2

143 stron
format: B5
oprawa: miękka
Rok wydania: 2018

The aim of the book is to attempt an interpretation of the term ‘-legal person‘-s seat‘- used by the legislator in Article 17 and 19 of the Polish Private International Law Act. My hypothesis is that the correct interpretation is the one in which this term is construed as the so-called registered office. This means a radical change to the so-called real seat concept assumed in the effective acts so far. Moreover, it generates risks which have not been known to Polish legal system. Consequently, a vast section of the book will be devoted to relevant mitigating measures. The change of the connecting factor applicable to the personal status of a company is a complex process, which does not end with adoption of a new act or the determination of what is referred to in the German doctrine as herrschende Meinung. To operate effectively, the entire system will require not only an extensive doctrinal analysis of the issues related to conflict of laws in company law (particularly the scope of interference of the public order clause and provisions classified as overriding mandatory provisions), but also the subsequent actions of the Polish legislator - such as adoption of the act on pseudo-foreign companies or the passing of necessary amendments to provisions governing company registration. The book will include in-depth analysis of aforementioned institutions and proposals of changes and amendments. Finally the issue of transfer of company‘-s seat (both factual and registered) will be analyzed.

SPIS TREŚCI

Preface Chapter ILegal person‘-s seat in the context of conflict of laws

1. Introduction

2. Arguments in favour of the interpretation of the term ‘-legal person‘-s seat‘-in Article 17(1) of the Private International Law Act of 4 February 2011 as the so-called registered office

3. Arguments supporting the interpretation of the term ‘-legal person‘-s seat‘-in Article 17(1) of the Private International Law Act of 4 February 2011 as the so-called real seat

4. Position regarding the interpretation of Article 17(1) of the Private International Law Act of 4 February 2011 in relation to the EU and EEA Member States

5. The seat connecting factor and third states

6. Measures mitigating risks for the security of legal transactions arising from the adoption of the registered office connecting factor 6.1. Public order clause 6.2. A discussion of selected Polish mandatory rules in the area of companylaw 6.3. Special act on pseudo-foreign companies 7. Summary Chapter IICross-border transfer of a Polish company‘-s registered office abroad 1. Introduction 2. De lege lata status of EU law 3. De lege lata status of Polish international law 3.1. General comments 3.2. Preservation of legał personality 3.3. Hypothesis on systemie importance of Article 19(1) of the Private InterŞnational Law Act of 4 February 2011 3.4. The moment of the transfer of seat to another state 3.5. Another state 3.6. Summary 4. The de lege lata status of Polish substantive law. An assessment of the compliance of Article 270(2) and Article 459(2) of the Code of Commercial Companies of 15 September 2000 with the freedom of establishment 4.1. A brief description of regulations 4.2. An assessment of the compliance of Article 270(2) and Article 459(2) ofthe Code of Commercial Companies of 15 September 2000 with the freedom of establishment 5. De lege ferenda cross-border transfer of a company‘-s registered office 5.1. Applicability of the directive 5.2. Effects of cross-border seat transfer

5.3. Management board report and transfer plan 5.4. Decision of the shareholders meeting 5.5. Verification of legality of the transfer procedurę. Registration in the host country

5.6. Protective measures

5.7. Employees‘- participation in managing the company

6. Summary

Chapter IIICross-border transfer of the seat of a foreign company to Poland 1. Introduction 2. The admissibility of cross-border conversion by the law of the emigration state 3. Compliance with the requirements of the law of the emigration state 4. The adjustment of the legał form of the immigrating company to the requirements of Polish law 4.1. Adjustment of the legal form and Anpassung 4.2. The lack of equivalence of a foreign notarial form 4.3. Adjustment of the company‘-s seat and business name 4.4. Adjustment of the company‘-s internal organisation 5. Analogous application of Articles 551-584" of the Code of Commercial Companies of 15 September 2000 ‘-5.1. Incorporating entry into the register. Removal from the foreign register 5.2. Entry of the foreign company as the legał predecessor of the convertedcompany 6. Summary Chapter IVJudgment by the Court of Justice of the European Union of 25 October 2017 in the case C-106/16 Polbud - Wykonawstivo sp. z o.o., in Uquidation and its influence on European company and private international law 1. Critical remarks to the opinion of Advocate General Kokott issued in the case C-106/16 Polbud-Wykonawstwo sp. z o.o., in liquidation 1.1. Introduction 1.2. The extent of applicability of the freedom of establishment 1.3. Polbud Wykonawstwo as a company in liquidation 1.4. Restriction of the freedom of establishment 1.4.1. Protection of creditors1.4.2. Protection of minority shareholders 1.4.2. Protection of employees 1.5. Summary 2. Judgment of 25 October 2017 - early impressions 2.1. Preliminary remarks 2.2. Reasoning of the Court: criteria for application of freedom of establishment. Setting aside Cadbury Schweppes. Party autonomy with respect tolaw applicable to companies. Critical analysis 2.2.1. Reasoning of the Court 2.2.2. Critical analysis 3. Reasoning of the Court: incompatibility of Article 270 (2) and Article 459 (2) of the Code of Commercial Companies of 15 September 2000 with the Treaty.Critical analysis 3.1. Reasoning of the Court 3.2. Critical analysis Bibliography Siedziba spółki w prawie prywatnym międzynarodowym. Zagadnienia wybrane(Streszczenie)