44 Pages Posted: 25 Jan 2008 Last revised: 30 Mar 2011
Date Written: January 2008
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 regimes.
Keywords: corporate mobility, costs of regulation, regulatory competition
JEL Classification: G38, K22
Suggested Citation: Suggested Citation
Bratton, William W. and McCahery, Joseph A. and Vermeulen, Erik P. M., How Does Corporate Mobility Affect Lawmaking? A Comparative Analysis (January 2008). ECGI - Law Working Paper No. 91/2008; Georgetown Law and Economics Research Paper No. 1086667; Amsterdam Center for Law & Economics Working Paper No. 2008-01. Available at SSRN: https://ssrn.com/abstract=1086667 or http://dx.doi.org/10.2139/ssrn.1086667