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Siedziba rzeczywista spółki jako łącznik unijnego prawa prywatnego międzynarodowego

100%
Wowerka A.
Problemy Prawa Prywatnego Międzynarodowego
|
2021
|
vol. 28
109-129
EN
The real seat is a recognised, although expressed in different terms, connecting factor of the EU international private law, relating to companies in they different legal relations. Under the regulations unifying particular areas of this law, relevant form the point of view of cross-border operations of companies, the real seat is the connecting factor determining the applicable law in the field of contractual and non-contractual obligations, and the company’s bankruptcy. Furthermore, it deretmines the jurusdiction for insolvency proceedings against the company, and i salso a jurisdictional connecting factor for general civil and commercial matters. The real seat connecting factor may also constitute a connecting factor determining the law applicable to company, accectable under the EU freedom of establishement.
2

Prawo właściwe dla spółki w świetle orzeczenia Polbud oraz projektu dyrektywy o transgranicznym przekształcaniu spółek

100%
Franczak P.
Kwartalnik Prawa Prywatnego
|
2019
|
vol. 28
|
issue 1
221–240
EN
The author argues that the judgment of the Court of Justice in Polbud weakens the position of mutual, neutral conflict of laws rules, which give the same weight and consideration to both domestic and foreign substantial law. It follows from the judgment in Polbud, as well as from the previous decisions of the Court, that a Member State may impose its conflict of laws rules, e.g. a requirement to maintain the real head office in its territory, on its own companies – whether created by it or admitted through a cross-border conversion – but it is not allowed to do so with respect to foreign companies. It could be even questioned if, under this approach, connecting factors constitute conflict of laws and not substantial rules. The proposal for a Directive does not introduce its own connecting factor, but, on the substantive law level, requires transfer of the registered office to an immigration state, which may result in the strengthening of the registered office (statutory seat) theory. The author’s view is that the incorporation theory is the best way to implement the Court’s guidelines. The incorporation should be characterized (classified) in accordance with lege causae (the law of incorporation).
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