Michael Schillig

Corporate Insolvency Law in the Twenty-First Century: State Imposed or Market Based?

The central premise of this article is that financial innovation and the ever increasing complexity of proprietary entitlements necessitate a principled recalibration of the boundaries of regulation and contract in corporate insolvency law, a recalibration that is already under way. Through the lens of a combination of “commons/anti-commons analysis” and “contractualisation of bankruptcy” models, the article critically analyses recent developments at European and domestic level, in particular the development and reform of the concept of centre of main interest, the rise of pre-packaged administrations and the reformulation of the anti-deprivation principle. The adopted theoretical framework explains and justifi es these developments and provides some guidance for future reform efforts.

The Mysteries of Freedom of Establishment after Cartesio

The judgement of the European Court of Justice in Cartesio was eagerly awaited as a clarification of the questions concerning the scope of the right of establishment (Articles 43, 48 EC) that remained after previous landmark decisions such as Centros, Uberseering, and Inspire Art. The article analyses the implications of Cartesio in light of different scenarios of transfer of the registered and the real seat within the European Union. It assesses the interrelations of right of establishment and private international law rules for the determination of the law applicable to companies and concludes that the case law of the European Court of Justice after Cartesio, rather than providing for a coherent system of European company law, leads to arbitrary distinctions and significantly impedes the free movement of companies.

The Interpretation of European Private Law in the Light of Market Freedoms and EU Fundamental Rights

Recent initiatives in the area of European private law seem to rely ever more extensively on very broad, general and vague provisions, in particular the concept of ‘good faith and fair dealing’, a concept already present in the acquis communautaire. These and similarly vague terms will only have an impact if interpreted autonomously and unitarily by a central authority. Despite its cautious approach regarding the assessment of the fairness of contract terms, this task can rest only with the European Court of Justice. This article explores whether and to what extent the four market freedoms regarding the free movement of goods, persons, services and capital, as well as the fundamental rights developed by the Courts jurisprudence, now laid down in the EU Charter on Fundamental Rights, may contribute to the development of an autonomous European method of legal reasoning.

Corporate Law after Brexit

Assuming a ‘hard Brexit,’ the article seeks to analyse the impact of the UK’s decision to leave the European Union on corporate law in the UK and at EU level, focusing on general trajectories, cross-border corporate mobility and cross-border restructuring.

Corporate Insolvency Law for the 21st Century: State-Imposed or Market-Based?

The central premise of this article is that financial innovation and the ever increasing complexity of proprietary entitlements necessitate a principled recalibration of the boundaries of regulation and contract in corporate insolvency law, a recalibration that is already under way. Through the lens of a combination of “commons/anti-commons analysis” and “contractualisation of bankruptcy” models, the article critically analyses recent developments at European and domestic level, in particular the development and reform of the concept of centre of main interest, the rise of pre-packaged administrations and the reformulation of the anti-deprivation principle. The adopted theoretical framework explains and justifi es these developments and provides some guidance for future reform efforts.

Corporate insolvency law in the twenty-first century

The central premise of this article is that financial innovation and the ever increasing complexity of proprietary entitlements necessitate a principled recalibration of the boundaries of regulation and contract in corporate insolvency law, a recalibration that is already under way. Through the lens of a combination of “commons/anti-commons analysis” and “contractualisation of bankruptcy” models, the article critically analyses recent developments at European and domestic level, in particular the development and reform of the concept of centre of main interest, the rise of pre-packaged administrations and the reformulation of the anti-deprivation principle. The adopted theoretical framework explains and justifi es these developments and provides some guidance for future reform efforts.