COLOPHON

European Company Law

Author Guide [A] Aim of the Journal European Company Law has been designed to be the ideal working tool for all corporate lawyers with a European practice. The journal deals with European company law in a broad sense, including such topics as codetermination law, insolvency law and securities law. All contributions should follow ECL’s SCIP-principle, which welcomes articles that are scientific, concise, informative and practical. [B] Contact Details

European Company Law (ECL) is published under the aegis of the Centre for European Company Law (CECL), an academic partnership of the Universities of Leiden, Utrecht, Maastricht, the Netherlands Uppsala (Sweden) and Rome, LUISS Guido Carli (Italy) (www.cecl.nl). The purpose of CECL is to further the study of company law by focusing on supranational issues. These include both developments in the EU and on other international levels, as well as comparative law. Leiden University acts as the leading partner in CECL, with Professor Steef M. Bartman, as coordinating director. ECL aims to be interesting for both practising and academic lawyers in the field of European company law. There are six issues of ECL per year. Two of these (April and October) concentrate on specific topics. The other issues contain articles on various subjects and may also include country reports of a general nature, highlighting important developments in a number of EU jurisdictions, as well as columns that offer summaries of recent EU legislation, ECJ case law and of selected articles from various national legal periodicals.

EDITORIAL BOARD

HOUTHOFF BURUMA André G. de Neve e-mail: [email protected]

(Main Editor), Professor of Company Law at Leiden University, the Netherlands e-mail: [email protected] ANDREAS CAHN Director of the Institute for Law and Finance, Johann Wolfgang Goethe-University, Frankfurt, Germany e-mail: [email protected] BARBARA DE DONNO Professor of Comparative Private Law, LUISS Guido Carli, Rome, Italy e-mail: [email protected] ADRIAAN DORRESTEIJN Professor of International Company Law at Utrecht University, the Netherlands e-mail: [email protected] CHRISTOPH VAN DER ELST Professor of Law and Management, Tilburg University, The Netherlands e-mail: [email protected] HOLGER FLEISCHER Professor of Law, Director of the Max Planck Institute for Comparative and International Private Law, Hamburg, Germany e-mail: [email protected] MARCO LAMANDINI Full Professor of Company Law at the University of Bologna, Italy e-mail: [email protected] FRANCISCO MARCOS IE Law School, Madrid, Spain e-mail: [email protected] KID SCHWARZ Professor of Company Law at Maastricht University, the Netherlands e-mail: [email protected] DANIEL STATTIN Professor of Corporate Law, Uppsala University, Uppsala, Sweden e-mail: [email protected] ERIK WERLAUFF Professor of Company and Business Law at Aalborg University, Denmark e-mail: [email protected] JAAP WINTER Professor of International Company Law at the Universiteit van Amsterdam, the Netherlands e-mail: [email protected]

LOYENS & LOEFF / UTRECHT UNIVERSITY Tineke

STEEF BARTMAN

CONTRIBUTING INTERNATIONAL LAW FIRMS

Jan Louis Burggraaf e-mail: [email protected] BAKER & MCKENZIE Jeroen Hoekstra e-mail: [email protected] DE BRAUW Geert Potjewijd e-mail: [email protected] DLA PIPER Marnix Holtzer e-mail: [email protected] ALLEN & OVERY

EUROPEAN COMPANY LAW

Leiden University, the Netherlands e-mail: [email protected] THOMAS PAPADOPOULOS European University, Nicosia, Cyprus e-mail: [email protected] PAVLOS MASOUROS

Lambooy

e-mail: [email protected] STIBBE Christian van Megchelen e-mail: [email protected] COUNTRY REPORTERS KARIN EKLUND University Lecturer in Corporate Law, Uppsala University, Uppsala, Sweden e-mail: [email protected] THOMAS PAPADOPOULOS Lecturer at the Department of Law of the European University, Nicosia, Cyprus e-mail: [email protected] FEDERICO RAFFAELE Assistant Professor of Comparative Law and Research Fellow in Corporate Law, LUISS Guido Carli, Rome, Italy e-mail: [email protected] FRANÇOIS CARLE & ISABELLE DESJARDINS

e-mail: [email protected], idesjardins@carlara. com CHRISTOPH VAN DER ELST Professor of Law and Management, Tilburg University, The Netherlands e-mail: [email protected] BOHUMIL HAVEL Institute of Law, Czech Academy of Science, Prague, Czech Republic e-mail: [email protected] FRANCISCO MARCOS Instituto de Empresa Business School, Madrid, Spain e-mail: [email protected] PAVLOS MASOUROS Assistant Professor of Corporate Law, Leiden University, the Netherlands, Attorney-at-Law, Athens, Greece e-mail: [email protected] BEATE SJÅFJELL Centre for European Law, Faculty of Law, University of Oslo e-mail: [email protected] RAFAL STROINSKI Warsaw University, Poland e-mail: [email protected] CHRISTOPH TEICHMANN University of Heidelberg, Germany e-mail: [email protected] ERIK WERLAUFF Aalborg University, Denmark e-mail: [email protected]

Published by: Kluwer Law International PO Box 316 2400 AH Alphen aan den Rijn The Netherlands Website: www.kluwerlaw.com DISTRIBUTION

Sold and distributed in North, Central and South America by: Aspen Publishers, Inc. 7101 McKinney Circle Frederick MD 21704 United States of America E-mail: [email protected] Sold and distributed in all others countries by: Turpin Distribution Services Ltd. Stratton Business Park Pegasus Drive, Biggleswade Bedfordshire SG18 8TQ United Kingdom E-mail: [email protected] European Company Law Journal is published six times per year. Subscription prices for 2015 including postage and handling: Print subscription prices: EUR 710/USD 947/GBP 522 Online subscription prices: EUR 657/USD 878/GBP 484 Printed on acid free paper. S H O R T T I T L E A N D Q UO T A T I O N ISSN: 1572-4999 © 2015 Kluwer Law International BV, The Netherlands All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, mechanical, photocopying, recording or otherwise, without written permission from the publisher. Permission to use this content must be obtained from the copyright owner. Please apply to: Permissions Department, Wolters Kluwer Legal,

EDITORIAL SECRETARY

76 Ninth Avenue, 7th floor, New York, NY10011, USA. E-mail: [email protected].

Leiden University, the Netherlands e-mail: [email protected]

CORNELIS DE GROOT

122

JUNE 2015, VOLUME 12, ISSUE 3

Manuscripts should be submitted to ECL’s main editor, e-mail: [email protected] and to its editorial secretary, e-mail: [email protected] [C] Submission Guidelines [1] Manuscripts should be submitted electronically, in Word format, via e-mail. [2] Submitted manuscripts are understood to be final versions. They must not have been published or submitted for publication elsewhere. [3] Contributions should have a range of approximately 4,000 to 5,000 words (footnotes excluded). [4] Only articles in English will be considered for publication. Manuscripts should be written in standard English, while using ‘ize’ and ‘ization’ instead of ‘ise’ and ‘isation’. Preferred reference source is the Oxford English Dictionary. However, in case of quotations the original spelling should be maintained. In case the complete article is written by an American author, US spelling may also be used. [5] The article should contain an abstract, a short summary of about 100 words. This abstract will also be added to the free search zone of the Kluwer Online database. [6] A brief biographical note, including both the current affiliation as well as the e-mail address of the author(s), should be provided in the first footnote of the manuscript. [7] An article title should be concise, with a maximum of 70 characters. [8] Special attention should be paid to quotations, footnotes, and references. All citations and quotations must be verified before submission of the manuscript. The accuracy of the contribution is the responsibility of the author. The journal has adopted the Association of Legal Writing Directors (ALWD) legal citation style to ensure uniformity. Citations should not appear in the text but in the footnotes. Footnotes should be numbered consecutively, using the footnote function in Word so that if any footnotes are added or deleted the others are automatically renumbered. [9] Authors should make sure that abbreviations are explained when used for the first time. [10] Tables should be self-explanatory and their content should not be repeated in the text. Do not tabulate unnecessarily. Tables should be numbered and should include concise titles. [11] Heading levels should be clearly indicated. For further information on style, see the House Style Guide on the website: www.kluwerlaw.com/ContactUs/ [D] Review Process [1] Before submission to the publisher, manuscripts will be reviewed by the Board of Editors and may be returned to the author for revision. [2] The journal’s policy is to provide an initial assessment of the submission within thirty days of receiving the posted submission. In cases where the article is externally referred for review, this period may be extended. [3] The editors reserve the right to make alterations as to style, punctuation, grammar etc. [4] In general the author will not receive proofs of the article. Proofreading will be taken care of by the Board of Editors. [E] Copyright [1] Publication in the journal is subject to authors signing a ‘Consent to Publish and Transfer of Copyright’ form. [2] The following rights remain reserved to the author: the right to make copies and distribute copies (including via e-mail) of the contribution for own personal use, including for own classroom teaching use and to research colleagues, for personal use by such colleagues, and the right to present the contribution at meetings or conferences and to distribute copies of the contribution to the delegates attending the meeting; the right to post the contribution on the author’s personal or institutional web site or server, provided acknowledgement is given to the original source of publication; for the author’s employer, if the contribution is a ‘work for hire’, made within the scope of the author’s employment, the right to use all or part of the contribution for other intra-company use (e.g. training), including by posting the contribution on secure, internal corporate intranets; and the right to use the contribution for his/her further career by including the contribution in other publications such as a dissertation and/or a collection of articles provided acknowledgement is given to the original source of publication. [3] The author shall receive for the rights granted (subject to signing the ‘Consent to Publish and Transfer of Copyright’ form) two free copies of the issue of the journal in which the article is published, plus a PDF file of his/her article.

Table of Contents 125

Editorial Arbitration and Company Law: An Introduction Diederik De Groot

128 132 138 144 151 154 160 166 173

Arbitration and Company Law in Austria Christoph Liebscher Arbitration and Company Law in Belgium Dirk Van Gerven & Maxime Berlingin Arbitration and Company Law in England and Wales James Carter & Sophie Payton Arbitration and Company Law in France T. Alexander Brabant, Maxime Desplats & Serena Salem Arbitration and Company Law in Germany Frank Roth Arbitration and Company Law in Italy Diego Corapi Arbitration and Company Law in the Netherlands Harmen De Mol Van Otterloo Arbitration and Company Law in Sweden Kristoffer Löf & Andreas Steen Report Report of the 5th CECL-Conference on Banks in Europe: Regaining Trust and Securing Continuity Tom Dijkhuizen

179

Columns Survey of Legislation and Case Law, November and December 2014 & January and February 2015 Paul Jager

EUROPEAN COMPANY LAW

123

JUNE 2015, VOLUME 12, ISSUE 3

181 182

Legal Periodicals: A Selection Stephan Rammeloo Book Review Donald S. Bernstein (ed.), The International Insolvency Review, London: Law Business Research Ltd., 2nd ed., 2014, ix + 483 pp.; ISBN 978-1-909830-25-7. £ 225 Bob Wessels

JUNE 2015, VOLUME 12, ISSUE 3

124

EUROPEAN COMPANY LAW

ARTICLE

Arbitration and Company Law in France T. ALEXANDER BRABANT, ATTORNEY ADMITTED TO THE NEW YORK AND PARIS BARS, AND PARTNER OF DLA PIPER FRANCE LLP, MAXIME DESPLATS, AVOCAT À LA COUR AND SENIOR ASSOCIATE OF DLA PIPER FRANCE LLP & SERENA SALEM, AVOCAT À LA COUR AND JUNIOR ASSOCIATE OF DLA PIPER FRANCE LLP.*

With more than 3.1 million companies registered in France,1

obvious impact on all third parties dealing with this corporation as

corporate law is a very dynamic field of French law. All the more

it ceased to exist). Consequently, the use of arbitration as a means

so as French corporate law is very much intertwined with strong

for dispute resolution is not always an available option for

connections with other fields such as commercial and civil law. For

litigants.

instance, it is Article 1832 of the French Civil Code (FCC) which

We will therefore identify the main criteria which define the

defines corporations, i.e., as a creation of ‘two or several persons

types of disputes that may be submitted to arbitration under

who agree by a contract to appropriate property or their industry for

French law (1). As applied to corporate disputes, this criteria will

a common venture with a view to sharing the benefit or profiting

provide a scope of arbitrability of corporate disputes under French

from the saving which may result therefrom

(...)’.2

In accordance

law (2).

with this definition, corporations can thus either be civil or commercial in nature. As one might expect, the dynamism of this field generates a

1.

ARBITRABILITY IN FRANCE

significant number of disputes colloquially referred to as corporate

The arbitrability of a dispute lies in whether a dispute may be

disputes. Legal authors have defined such disputes as being divided

validly submitted to arbitration, instead of to the jurisdiction of a

into two categories of claims, i.e., contractual and institutional.

State court.4 The classic approach is thus to consider arbitrability

This classification stems from the dual nature of legal corporations, which are, on the one hand, ‘contractual’ (e.g., based

as an ‘exception to the jurisdiction of the State’.5 But arbitrability is not a static principle; it evolves notably

on the shareholders’ agreement to set up the company) and, on the

through the evolution of case law. Thus, what previously could not

other hand, ‘institutional’ (because legal entities are governed by

be submitted to arbitration may become arbitrable and vice versa.

statutory rules which are also in the interest of third parties).3

It also has a definite nationalistic character: what may not be

For example, contracts concluded between shareholders (such

arbitrated in one State may be arbitrated in another.

as shareholder, share transfer and joint-venture agreements) are

In the absence of a conflict of laws, arbitrability as it is

obviously contractual in nature, whereas corporate resolutions

understood under French law will apply to a dispute seated in

(e.g., the exercise of shareholder rights by majority including

France. But in cases where foreign laws also apply to the dispute,

abuses by majority and minority factions, appointments of

the French concept of arbitrability will remain relevant in at least

directors or provisional administrators, regulated agreements

three situations:

(‘conventions réglementées’)) generally fall within the institutional category. Specific considerations will attach to corporate disputes arising

First, the issue of arbitrability might come up at the outset of the litigation, when a party, despite an arbitration clause, refers its dispute to a French court. In such a situation, according to the

out of institutional claims involving public policy issues because

competence-competence principle, the judge would normally

they have ricochet effects on third parties (e.g., the creditors of a

decline jurisdiction. However, pursuant to Article 1448 of the

corporation the dissolution of which has been ordered pursuant to

French Code of Civil Procedure (FCCP), French courts retain

a claim brought by a shareholder as it will have a significant and

jurisdiction if the arbitration agreement is manifestly void or not

* E-mails: E [email protected], [email protected] & [email protected]. 1 As of 2011. ‘Les Catégories D’entreprise en France: de la Microentreprise à la Grande Entreprise’, Julien Lemasson, division Infrastructures et répertoire statistiques, Insee (available at http://www.insee.fr/fr/themes/document.asp?ref_id=if4). 2 Translation from Legifrance (available at http://legifrance.gouv.fr/Traductions/en-English/Legifrance-translations). 3 Daniel Cohen, ‘Présentation Générale’, Rev. arb., 2013, pp. 611-615. 4 Laurence Ravillon, ‘Que Reste-t-il du Concept D’inarbitrabilité?’, in Eric Loquin et Sébastien Manciaux (dir.), L’ordre Public et L’arbitrage, Actes du colloque des 15 et 16 mars 2013, LexisNexis, 2014, p. 57. 5 Patrice Level, ‘L’arbitrabilité’, Rev. arb., 1992, p. 213. (Free translation from French).

Brabant, T. Alexander; Desplats, Maxime & Salem, Serena. ‘Arbitration and Company Law in France’. European Company Law 12, no. 3 (2015): 144–150. © 2015 Kluwer Law International BV, The Netherlands

The domestic or the international nature of the dispute. Indeed:

applicable. For instance, an arbitration agreement is manifestly void if the matter of the dispute can obviously not be submitted to

the fact that a particular matter is nonarbitrable in a

arbitration. In performing this review of the arbitration agreement,

domestic [context] does not necessarily mean that it will be

the judge will apply the lex fori, i.e., French law.6

nonarbitrable in an international setting . . . [i]n international

Second, the French judge may apply the French concept of

cases, national conceptions of public policy and mandatory law

arbitrability when faced with an action to set aside an award.

should be moderated, in light of the existence of competing public

Indeed, pursuant to Articles 1492 1°, 1492 5°, 1520 1°, and 1520 5°

policies of other states and the shared international policy of

of the FCCP, the judge may set aside an award if (s)he finds that,

encouraging the resolution of international commercial disputes

inter alia: (i) the arbitral tribunal wrongly upheld or declined

through arbitration.11

jurisdiction, or that (ii) the challenged award contradicts the

In this latter respect, Article 1504 of the FCCP12 refers to an

French conception of international public policy. In this respect, the determination of these findings sometimes revolves around the

economic criterion to define whether an arbitration is

issue of arbitrability. For instance, if an arbitral tribunal seated in

international: ‘An international arbitration is the one that concerns

Paris held that it has jurisdiction over a divorce dispute pursuant

interests of international trade.’13

to a foreign law, the award would very likely be set aside on the 1.2. Overview of Relevant Statutory Provisions and Case Law on the Matter of Arbitrability in France

basis that the arbitral tribunal lacked jurisdiction because such disputes are not arbitrable under French law.7

With regard to domestic arbitration, both case law and a number

Third, pursuant to Articles 1499 and 1525 of the FCCP, the

of statutory provisions help define what may be arbitrated and

aforementioned Articles also apply to challenges of the French

what may not (1). In the field of international arbitration,

exequatur of an award. Thus, when the issue of arbitrability is

however, only case law provides relevant guidance in the absence of

raised before French courts at the stage of enforcement

relevant statutory provisions (2).

proceedings, French law will also be applied determining whether the award has violated any rule on inarbitrability.8

1.2.1.

Hence, the drafting and indeed the entering into an arbitration

With Respect to Domestic Arbitration

The section of the FCC entitled ‘Arbitration agreement’ provides

agreement requires a minimum if not an important degree of

guidance on the question of the arbitrability of disputes, and sets

anticipation of the types of potential disputes that may ensue

the criteria for both subjective and objective arbitrability. Other

between the parties, if one is to ensure the effectiveness of the

statutory provisions and case law also have an influence on the

arbitration agreement under French law.

arbitrability of domestic disputes. Pursuant to Article 2059 of the FCC, ‘all persons may enter into

1.1. Conceptual Scope of Arbitrability in France

a compromise agreement on rights of which they have the free France is home to a very liberal conception of arbitrability. Under

disposal’.14 This provision suggests that all natural persons and legal

French law, three main elements determine whether a dispute is

entities may enter into arbitration agreements to settle a vast array

arbitrable or not.

of disputes.

The identity of the litigants. For example, a dispute will

The apparent wide scope of said Article 2059 is, however,

generally not be arbitrable if the French State is a party. This is

curtailed by the following Article 2060 which adds that:

referred to as subjective arbitrability (ratione personae).9 One cannot enter into a compromise agreement about matters of

The subject-matter of the dispute, i.e., those particular sectors which are, by their very nature, not arbitrable. These are mainly

status and capacity of the persons, matters relating to divorce and

related to the State’s regal prerogatives, such as matters regarding

judicial separation or matters of disputes involving public bodies

civil status or arising under criminal

litigation.10

and institutions and more generally in all matters concerning

This is referred to

public order.

as objective arbitrability (ratione materiae).

6 7 8 9 10 11 12

See Cass. Soc., 28 Jun. 2005, n. 03-45.042, Société Taiphoon limited v. Bobinet; see also Cass. Soc., 12 mars 2008, n. 01-44.654. Cass. Civ. 1, 20 Dec. 1993, n. 91-16.828, Municipalité de Khoms El Mergeb v. Société Dalico (annulment action against partial award on jurisdiction). Cass. Civ. 1, 30 Mar. 2004, n. 01-14.311, Société Uni-Kod v. Société Ouralkali. Emmanuel Gaillard, ‘Fascicule 586-3: Arbitrage Commercial International. Convention d’arbitrage – Arbitrabilité’, Jurisclasseur Droit International. Ibid. Gary Born, Chapter 6: Nonarbitrability and International Arbitration Agreement, in International Commercial Arbitration 957 (Kluwer L. Intl. 2014) (emphasis added). In the FCCP part devoted to ‘Arbitration’, a first section running from Arts 1442–1503 relates to domestic arbitration while a second running from Arts 1504–1527 relates to international arbitration. 13 Translation from Legifrance. This economic criteria has been interpreted by the jurisprudence as corresponding to transfers of goods, services or currency across the border. See for instance Cass. Civ. 1, 26 Jan. 2011, n. 09-10.198, INSERM v. Fondation Letten F. Saugstad. 14 Translation from Legifrance, (available at http://legifrance.gouv.fr/Traductions/en-English/Legifrance-translations). This Article also relates to objective arbitrability (cf. infra).

EUROPEAN COMPANY LAW

145

JUNE 2015, VOLUME 12, ISSUE 3

However, some categories of public institutions of an industrial or

contained in the underlying agreement (‘clause compromissoire’), or

commercial character may be authorized by decree to enter into

an arbitration agreement entered into after the emergence of the

compromise

agreements.15

dispute (‘compromis d’arbitrage’). The prohibition set by Article 2061 only applies to a pre-existing arbitration agreement, the so-

In the domestic arena, Article 2060 therefore defines limits to

called compromissory clause.21

the arbitrability of disputes both on ratione personae and ratione

With regard to employment law, Article L1411-4 of the French

materiae bases. 1.2.1.1.

Labour Code is an exception to Article 2061 of the FCC pursuant to which arbitration agreements set out in employment agreements

Subjective Arbitrability (Ratione Personae)

not binding on employees.22

Subjective arbitrability is of particular relevance with respect to State and public entities, consumers, and in the field of

1.2.1.2.

employment.

Objective Arbitrability (Ratione Materiae)

Pursuant to Article 2059 of the FCC, ‘all persons may enter into a

With regard to State and public entities, the general rule is that

compromise agreement on rights of which they have the free disposal’.

the latter are prohibited from entering into arbitration agreements

This implies that if the subject-matter of the dispute concerns

in order to preserve the jurisdiction of, and hence the supervision

rights which private persons do not have the freedom to dispose of

by, administrative courts over entities held or controlled by the

(such as their civil status), the dispute will not be arbitrable. The

State.

classic example is that of a divorce which cannot be submitted to

This general rule has, however, been the subject of a certain

arbitration.

degree of erosion.

Article 2060 further limits the scope of objective arbitrability as

For example, Article L311-6 of the French Code of

it states that matters of public policy are also excluded from the

Administrative Justice provides that disputes which involve public

purview of arbitration.23 In other words, the parties cannot resort

entities may be submitted to arbitration if the Law so provides.

to arbitration to enforce a contract which violates public policy.

The French Code of Administrative Justice has thus carved out

Consider an arbitration agreement the scope of which included

various exceptions such as for public entities dedicated to scientific

disputes arising out of the performance of a cartel agreement, but

and technological research,16 the postal office,17 or the French

not arising out of issues related to its validity. In this case, there

national railway company,18 which are permitted to use arbitration

had indeed been a breach of the cartel agreement and claimant

as a means of dispute resolution.

obtained an award in its favour. But had this case been litigated

With regard to consumers, Article 2061 of the FCC provides

before a State court, the cartel agreement would have been

that ‘[e]xcept when there are particular legislative provisions, a

annulled on grounds of unlawful cause. In a subsequent challenge

compromissory clause is valid in contracts entered into on account

against the award, the award was thus set aside by the Court of

of a professional activity’.19 This Article considerably enlarged the

Appeals on the basis that the arbitration agreement violated Article

number of subjectively arbitrable disputes.20 As such, an

2060.24

arbitration agreement entered into in the course of the litigants’

However, French courts have gradually limited the broad

professional activities will most often be subjectively arbitrable.

prohibition set by Article 2060. As a result, save for subject-matters

Conversely, simple consumers cannot be bound by such clauses.

which are still considered inarbitrable per se (e.g., civil status,

But Article 2061 does not prohibit consumers from validly

divorce . . .), tribunals in domestic arbitration today have

entering into arbitration agreements after the dispute has arisen.

jurisdiction over matters which involve mandatory public order

This is because French law distinguishes between arbitration

provisions provided the tribunal correctly applies such provisions

agreements entered into before and after the inception of the

(i.e., the arbitrability of the issues ruled upon by the arbitral

dispute. In other words, either the parties are bound by a clause

15 16 17 18 19 20 21 22 23

Ibid. Article L321-4, Code de la recherche. Decree n. 2002-56 of 8 Jan. 2002. Article L2111–14, Code des transports. Translation from Legifrance, supra. This Article was amended in 2001. The former version of Art. 2061 of the FCC provided that ‘the arbitration clause is null and void unless the law provides otherwise’. Article R132-2, 10, Code de la Consommation; see also Cass. Civ. 1, 25 Feb. 2010, n. 09-12.126, note Maximin de Fontmichel, Petites Affiches, n. 202, 11 Oct. 2010. See Cass. Soc., 30 Nov. 2011, n. 11-12.905 and 11-12.906, Deloitte. Public policy is undefined in that Article, except for the three categories expressly excluded from arbitration. See Jean-Louis Delvolvé, et al., Part II – Chapter 4: Institution or Arbitral Proceedings, in French Arbitration Law and Practice: A Dynamic Civil Law Approach to International Arbitration 38–39 (2d ed., Kluwer L. Intl. 2009). 24 CA Paris, 22 May 1980 and Cass. Com., 21 Oct. 1982, p. 264, note J.-B. Blaise, JC Decaux.

JUNE 2015, VOLUME 12, ISSUE 3

146

EUROPEAN COMPANY LAW

tribunal will be upheld in a subsequent challenge to set aside the

1.2.2.

With Respect to International Arbitration

award if said tribunal has made a correct application of the

The foregoing criteria do not readily apply to the determination of

concerned public order provisions). French courts have thus

what may and may not be arbitrated in international arbitration.31

liberalized (so to speak) the regime of objective arbitrability under

In fact, French law is silent on the issue as applied to international

domestic arbitration akin to what exists under international

arbitration. French courts have therefore developed their own set of rules to

arbitration (cf. infra).25 Although not expressly mentioned by Article 2060, matters such

assist in the determination of the appropriate criteria for

as criminal law or tax law are other examples of fields which

arbitrability in this area.32 The relevant jurisprudence thus consists

remain outside the purview of arbitration. The important

of a ‘progressive elaboration of a specific liberal regime of

consequences such matters may have on society as a whole, or the

international arbitration, as opposed to domestic arbitration’.33 With regard to objective arbitrability, the applicable

imperium of the State, are sufficient justification to exclude such

jurisprudence has evolved through a number of decisions ranging

matters from the jurisdiction of private judges.

from the denial of the arbitrability of disputes only involving

But overall, the number of inarbitrable matters has decreased over time. As one author put it, notwithstanding ‘potentially

public policy questions in 1954,34 to a general acceptance of the

expansive (and archaic) non arbitrability provisions of the Civil

arbitrators’ empowerment to rule upon the validity of contracts

Code, and almost equally expansive historic judicial interpretations

which are contrary to international public policy,35 subject to a

of those provisions, French courts have progressively narrowed the

review of their award by ‘the annulment judge’.36

scope of non arbitrable

For example, the Court of Appeals of Paris has held that

matters’.26

notwithstanding the fact that arbitrators are prohibited from

Moreover, the French Commercial Code also expressly narrows the scope of non arbitrable matters. For example, its Article L721-

issuing injunctions or fines in matters which concern economic

327

policy of the European Union regarding competition law rules, an

confirms the objective arbitrability of commercial

disputes:28

arbitral tribunal ‘can still rule on the civil consequences of a behavior

The Commercial Courts hear:

deemed illegal under rules of public order that can be directly applied

1 Disputes relating to commitments between traders, credit institutions or between the foregoing;

to the relations of the parties’.37 However, some matters such as criminal law and tax law remain

2 Those relating to commercial companies;

outside the purview of international arbitration. As in domestic

3 Those relating to commercial acts between all persons.

arbitration, these two fields are at the core of the principle of

However, parties are free to agree, at the time of contracting, to submit the above-mentioned disputes to arbitration.29

inarbitrability. As for subjective arbitrability, it is of little significance in international arbitration. Indeed, the traditional prohibitions under

In the end, ‘the objective of arbitrability, which is “an interest in

Articles 206038 and 2061 of the FCC39 have both been held to be

protecting the public order”, loses strength little by little, while the

inapplicable to international arbitration by the French Cour de

scope of arbitrability grows’.30

Cassation.

The arbitrability of domestic commercial disputes under French

Hence, public entities and even consumers may validly provide

law has thus become the principle rather than the exception.

for arbitration agreements in international trade agreements.40 The

25 26 27 28 29 30 31

32 33 34 35 36 37 38 39 40

Cass. Com., 9 Apr. 2002, n. 98-16.829, Toulousy v. Philam. Gary Born, supra, p. 964. Incorporated into the Commercial Code by Ordinance of 8 Jun. 2006, as last amended by an Ordinance of 27 Jun. 2013. Olivier Caprasse, ‘Les Décisions Sociales’, Rev. arb., 2013, p. 675. Free translation from French. Laurence Ravillon, supra, p. 59 (Free translation from French). This is essentially true regarding Arts 2060 and 2061 of the FCC. However, with regard to Art. 2059 of the FCC, as Christophe Seraglini and Jérôme Orscheidt, in Droit de L’arbitrage Interne et International, 2014, Lextenso, p. 548, s. 644 explain, ‘the French jurisprudence seems, in fact, to overlook the criteria of the free disposal of rights in international arbitration [ . . .], preferring a more global approach on arbitrability’ (Free translation from French). Cass. Civ. 1, 18 May 1971, n. 69-10.489, Impex v. P.I.Z. Produzione, Clunet, 1972, p. 62. Alexis Mourre, Arbitrability of Antitrust Law From the European and US Perspectives, in EU and US Antitrust Arbitration: A Handbook for Practitioners 7 (Gordon Blanke & Phillip Landolt eds, Kluwer L. Intl. 2011). CA Paris, 9 Feb. 1954, Société Anonyme Agricole v. Torris, D. 1954, jur. 192. The scope of which is much narrower than that of domestic public policy. CA Paris, 29 Mar. 1991, Ganz v. Société Nationale des Chemins de Fers Tunisiens (SNCFT), Rev. arb., 1991, p. 478, note Laurence Idot. CA Paris, 19 May 1993, Société Labinal c. Sociétés Mors et Westland Aerospace, Rev. arb. 1993, p. 645, note Charles Jarrosson. (Free translation from French). Cass. Civ. 1, 2 May 1966, Galakis, Bull. n. 256. Cass. Civ. 1, 5 Jan. 1999, n. 96-21.430, Zanzi. Cass. Civ. 1, 21 May 1997, n. 95-11.427, Jaguar; Cass. Civ. 1, 30 Mar. 2004, n. 02-12.259, Rado; Cass. Civ. 1, 12 May 2010, n. 09-11.872, El Assidi.

EUROPEAN COMPANY LAW

147

JUNE 2015, VOLUME 12, ISSUE 3

notable exception applies to employees who are parties to an

to such an entity would not be arbitrable because the relationship

arbitration agreement inserted in an international employment

between the shareholders is not born out of their professional

agreement as they may, regardless, escape an obligation to arbitrate

activities.

if they so desire.41

A more straightforward situation is with regard to corporations which are governed by the French Commercial Code. In

Restrictions on matters that can be arbitrated in international arbitration are therefore far fewer than in the field of domestic

accordance with the latter’s Article 721-3, 2°, disputes relating to

arbitration.

commercial companies, i.e., regarding their by-laws, shareholder and management issues, and the dissolution and liquidation of

2.

such entities can be submitted to arbitration. This also extends to

ARBITRABILITY OF CORPORATE DISPUTES

the State45 acting as the shareholder of such a corporation regardless of the domestic or international nature of the dispute.46

The liberal trend under French law regarding the types of matters

However, notwithstanding the objective arbitrability of such

that can be submitted to arbitration is particularly true in corporate disputes (regardless of their contractual or institutional

disputes involving corporations, the subjective inarbitrability may

nature).42

affect the ability of the State, acting as a shareholder, to submit a domestic dispute to arbitration. Indeed, French courts have

The devil, however, is in the detail as there are several exceptions which, in some cases, create real questions as to whether

construed Article 2060 of the FCC as a prohibition of the State

a dispute arising under matter corporate in nature can be

from entering into arbitration agreements.47 Thus, a domestic

submitted to arbitration.

dispute involving the State acting as a shareholder cannot be submitted to arbitration unless a specific decree or law has

2.1. Subjective Arbitrability of Corporate Disputes in France

authorized it to enter into arbitration agreements.

As between business persons, there should normally be little debate 2.2. Objective Arbitrability of Corporate Disputes in France

as to whether their disputes can be submitted to arbitration. Indeed, the subjective arbitrability of the dispute is of little

Objective arbitrability is more straightforward although, here

relevance.

again, there are some notable exceptions to be mindful of.

But if one considers a shareholder dispute where one of the 2.2.1.

shareholders is underage, and if the related contract was entered

Examples of Objectively Arbitrable Matters

into by that underage shareholder without the authorization of his

2.2.1.1.

legal guardian, the obligation to submit any disputes to arbitration

French courts have consistently held that disputes arising out of

will not be binding on that underage shareholder.43

shareholders’ agreements may be settled before an arbitral

Moreover, in the case of a domestic dispute (i.e., not

Shareholders’ Agreements

tribunal.48

international), the agreement to arbitrate will only be binding on a natural person to the extent it was entered into in the context of

2.2.1.2.

that person’s professional activity. For example, corporate disputes

In international arbitration, the sale of shares should always be

involving civil companies, such as law firms or medical practices,

deemed arbitrable. As for domestic arbitration, provided the

may be submitted to

Sale of Shares

dispute concerns a sale of shares of a commercial corporation, it

arbitration.44

will also be objectively arbitrable pursuant to Article L721-3 of the

A counter-example, however, would be that of the so-called civil real-estate company (‘société civile immobilière’ or ‘SCI’). This

French Commercial Code.49 This is true even if the sale is not

type of corporation is often used by private individuals to organize

undertaken in connection with a professional activity. For instance,

and administer their real-estate assets, particularly in situations

if a retired individual sells his/her shares in a commercial

where assets have been inherited. Any ‘corporate’ dispute relating

corporation, said sale is not related to a professional activity and, therefore, the dispute arising out of such sale should be deemed

41 42 43 44 45 46

Cass. Soc., 28 Jun. 2005, n. 03-45.042. Christophe Seraglini, ‘Les Effets de la Sentence’, Rev. arb., 2013, p. 707–708. In conformity with Art. 2059 of the FCC with regard to domestic arbitration. Charles Jarrosson, ‘Le nouvel essor de la clause compromissoire après la loi 2001-420 du 15 mai 2001’, JCP G, 2001, I, n. 333. Ordinance n. 2014-948 regarding the governance and capital operations of corporations with State participation, 20 Aug. 2014, Art. 1. As of today, the State is a shareholder in seventy-four companies. See Annual Report of the French Agency of the State’s Participations, (available at http://www.economie.gouv. fr/files/files/directions_services/agence-participations-etat/ANG-Panorama.pdf). 47 Conseil d’Etat, Avis, 6 Mar. 1986, No. 339710, Demande d’avis du Ministre du Plan sur la possibilité du recours à l’arbitrage pour trancher les différends découlant du contrat passé entre l’Etat et les collectivités concernées d’une part et la Société Walt-Disney d’autre part en vue de l’aménagement d’un parc de loisirs à Marne-la-Vallée, p. 2. 48 CA Paris, 7 Oct. 2014, n. 13/05.894. In this case, the Paris Court of Appeals validated an arbitral award granting damages on the basis of a breach of a shareholders’ agreement. 49 Cass. Com., 2 Jul. 2002, Perny et Autre v. SA Sidergie et Autres, Rev. arb., 2002, p. 927, note Laurent Jaeger; see Yves Reihnard, ‘Arbitrage et Sociétés’, Petites Affiches, 15 mai 1996, n. 59, p. 10.

JUNE 2015, VOLUME 12, ISSUE 3

148

EUROPEAN COMPANY LAW

2.2.2.1.

inarbitrable pursuant to Article 2061 of the FCC. But because the sale is, in fact, commercial in nature, it is arbitrable pursuant to

Decisions Taken by the Shareholders’ Meeting (‘Assemblée Générale’)

Article L721-3 of the French Commercial Code as said Article

Decisions taken by the shareholders’ meeting can be annulled. For

L721-3, 3° will prevail over the prohibition of Article 2061 of the

example, in the event of an abuse of majority, domestic courts

FCC.50

routinely annul the resolutions of shareholders’ meetings.54 If the corporation’s by-laws contain an arbitration clause, the minority

Therefore, a key parameter to determine if a corporate dispute is arbitrable in domestic arbitration is whether it is commercial in

dissenting shareholder may challenge the concerned resolution of

nature. In other words, objective arbitrability prevails over the

the shareholders’ meeting before an arbitral tribunal. Such a solution has been confirmed by the Court of Appeals of

limits of subjective arbitrability set by Article 2061 of the FCC. In this regard, French case law has adopted a very liberal stance,

Paris which upheld the lack of jurisdiction of State courts to rule

holding that disputes even remotely related to the sale of shares of

over such challenges in the presence of an arbitration clause

a commercial corporation should be commercial in nature and

contained in the articles of association.55

therefore arbitrable.

2.2.2.2.

For example, a dispute arose from a non-compete clause

As Professor Daniel Cohen remarked in an article published in

inserted in a share purchase agreement of a commercial company.

2003, the liability of a corporation’s legal representative is

The buyers had filed a claim against the former executives of the

becoming an important topic in international private law,

company subject of the sale before a commercial court. The

especially given the globalization of business.56 Should the

executives challenged the jurisdiction of the commercial court as

behaviour of the legal representative give rise to a dispute with the

they were not parties to the share purchase agreement nor were

company or its shareholders, there is a potential of conflicts

they merchants. The French Cour de Cassation nonetheless

between competing jurisdictions. Arbitration might therefore be

confirmed the jurisdiction of the commercial court on the basis

the proper forum to avoid such conflicts.57

that the dispute was commercial in nature as it was related to a

Under French law, such disputes are arbitrable. For instance, the

non-compete clause inserted in a share of sales of a commercial

ut singuli action where a shareholder may initiate, in the name of

company.51

the company, proceedings against the latter’s legal representative is

In another case, a shareholder, contemplating the sale of his/her shares in a corporation, retained a financial advisor to find a buyer. Even though the contract with the financial advisor had not been

a relevant example. In a recent case, the shareholder of a French corporation initiated an ut singuli action before an arbitral tribunal against its legal representative. Faced with an award which ordered

entered into for professional reasons, this contract was nevertheless

the legal representative to pay damages to the company, the

held to be commercial in nature because it had been entered into

representative sought the annulment of the award before the Court

in view of a potential sale of shares in a commercial corporation.52

of Appeals of Paris on the ground that the ut singuli action could

Shares disposals are thus a typical area where the French liberal

not be submitted to arbitration. The Court of Appeals rejected the

trend is in favour of a very broad principle of arbitrability. The

petition for annulment of the award, holding that such a dispute

only exception is in domestic arbitration where the disposal of

was arbitrable on the basis of both Article L721-3 of the French

shares of civil corporations, sold for non-professional objectives,

Commercial Code and the arbitration clause contained in the

remains outside the purview of arbitration.53 2.2.2.

The Liability of Company Representatives

company’s by-laws.58

Matters Less Evidently Characterized as Arbitrable

2.2.2.3.

The Appointment of an Ad hoc Administrator

Other issues, because they are more deeply imbricated with the

Cases of minority abuses, i.e., where a company’s corporate affairs

corporation’s ‘social life’ or because they relate to the commercial

are blocked by a dissenting minority shareholder, are replete. In

public order, are more difficult to identify as being arbitrable.

such cases, the other shareholders may seek the appointment of an

50 51 52 53 54 55 56 57 58

Cass. Civ. 1, 22 Oct. 2014, n. 13-11.568. Cass. Com., 10 Jul. 2007, n. 06-16.548. Cass. Com., 15 Jan. 2008, n. 07-12.102. Alain Couret, ‘Les Cessions de Droits Sociaux’, Rev. arb., 2013, pp. 651–671. See for instance Cass. Civ. 1, 4 Apr. 2006, n. 03-13.894. Daniel Cohen, Arbitrage et Société, LGDJ, 1993, p. 124. Daniel Cohen, ‘La Responsabilité Civile des Dirigeants Sociaux en Droit International Privé’, Revue Critique de Droit International Privé, 2003, p. 585. Daniel Cohen, ib., ss 61–62. CA Paris, 7 Oct. 2014, n. 13/09282.

EUROPEAN COMPANY LAW

149

JUNE 2015, VOLUME 12, ISSUE 3

‘ad hoc administrator’. Said administrator may be sought to

party to be heard; In other words, an arbitral tribunal may only

convene a shareholders’ meeting or to vote in the stead of the

validly order the dissolution of a corporation if the latter is a party

dissenting minority

shareholder.59

to the dispute.65

In such cases, if an arbitration clause is contained within the

The consequences of a dissolution may, however, be submitted

by-laws or the shareholders’ agreement, the dispute will be validly

to arbitration. A recent decision rendered by the Court of Appeals

submitted to arbitration. Arbitrators will have the same powers as

of Aix-en-Provence held that all disputes related to the dissolution

do State court jurisdictions to solve the issue in the corporation’s

of the corporation were governed by the arbitration clause

interest, among which the power to appoint an ad hoc

contained in the by-laws.66

administrator. To our knowledge, a French court has never held that such appointments fall outside the powers of arbitral

2.2.3.

Residual Limits to Objective Arbitrability

tribunals.60

Despite the wide acceptance of the principle of arbitrability of corporate disputes, arbitration is not possible regarding matters

In this regard, it must be borne in mind that the arbitrator, as the judge, has no power to decide in place of the governing bodies

which are subject to the exclusive jurisdiction of the national

of the company.61 As one author underlined, ‘an arbitrator cannot

courts. This is the case, for example, of insolvency proceedings.67

intervene in matters related to the production of decisions that are the

Under French law, only State courts have the authority to inter

exclusive competence of corporate bodies’.62 Such appointments

alia commence, administer and wind-up bankruptcy proceedings,

therefore do not entail an instruction as to how the ad hoc

operate it under some form of receivership or administration, or

administrator should vote.

rule on the liability of a legal representative for the debts of the company.68

2.2.2.4.

Another area of inarbitrability concerns disputes that are

The Nullity of the Corporation

Issues regarding the mere constitution of a company are another

subject to the jurisdiction of the administrative authority which

example of the liberal stance of French law regarding arbitrability.

oversees the operation of financial markets (in France, the Autorité

A typical case is where a party seeks the annulment of the

des Marchés Financiers or ‘AMF’), such as disputes arising out of

corporation on the ground that its shareholders failed to make

public tenders or securities trading.

their capital contributions. 2.3. Conclusion

For a long time, French jurisprudence systematically refused to allow such cases to be submitted to arbitration, notwithstanding

In the end, the distinction between institutional and contractual

pervasive criticism by authors of legal doctrine. It was not until

claims does not have a fundamental bearing on the scope of the

2002 that the French Cour de cassation finally admitted the

arbitrability of corporate disputes.

arbitrability of such disputes.63

If the arbitrability of contractual claims is to be expected, French courts have widened the goal posts to empower arbitral

2.2.2.5.

The Dissolution of the Corporation and Its Aftermath

tribunals with jurisdiction over disputes which may involve matters

Notwithstanding the fact that Article 1871 of the FCC states that

of public policy69 in order to sanction conduct which violates

the right to seek the corporation’s dissolution is a matter of public

principles of public policy.70

policy, both French courts and the doctrine agree that the

As such, given the gradual disappearance of restrictions

dissolution of a corporation may be submitted to arbitrators.64

regarding the arbitrability of corporate disputes, particular

A recent decision by the Court of Appeals of Paris has held that

attention must be given to the remaining exceptions.71

the arbitrability of such a dispute is subject to the right of every

59 60 61 62 63 64 65 66 67 68 69 70 71

Cass. Civ. 3, 16 Dec. 2009, n. 09-10.209. Cass. Com., 29 Jun. 2010, n. 09-15.810. Cass. Com., 9 Mar. 1993, n. 91-14.685, JCP E 1993, II, 448. Daniel Cohen, Arbitrage et Sociétés, supra, p. 128, s. 272. Free translation from French. Cass. Com., 9 Apr. 2002, n. 98-16.829, Toulousy v. SNC Philam, comm. E. Loquin, ‘De L’arbitrabilité de L’action en Nullité D’une Société’, RTD Com., 2003, p. 62. Cass. Com., 30 Jan. 1967, Bull. N72. See Daniel Cohen, Arbitrage et Sociétés, supra, spec. pp. 136–139. CA, Paris, 20 Jan. 2015, Coralsa Corporation Alimentaria S.A. c. Société Ingelco, n. 12/16039. CA, Aix-en-Provence, 19 Jun. 2014, n. 13/23619. Eric Loquin, ‘Fasc. 1024: Arbitrage. – Conventions d’arbitrage. – Conditions de fond. Litige Arbitrable’, Jurisclasseur, p. 13; see also Philippe Fouchard, ‘Arbitrage et Faillite’, Rev. arb., 1998, p. 478. Commercial Code, Art. R662-3. Olivier Caprasse, ‘Les Décisions Sociales’, supra, p. 681. CA Paris, 29 Mar. 1991, Ganz v. Société Nationale des Chemins de Fers Tunisiens, Rev. arb., 1991, p. 478, ss 13–14. Olivier Caprasse, Objective Arbitrability of Corporate Disputes – Belgium and France, in Carla J.M. Klaassen, Gerard von Solinge et al., Onderneming en ADR 79 et seq. (Kluwer L. Intl. 2011).

JUNE 2015, VOLUME 12, ISSUE 3

150

EUROPEAN COMPANY LAW

COLOPHON

European Company Law

Author Guide [A] Aim of the Journal European Company Law has been designed to be the ideal working tool for all corporate lawyers with a European practice. The journal deals with European company law in a broad sense, including such topics as codetermination law, insolvency law and securities law. All contributions should follow ECL’s SCIP-principle, which welcomes articles that are scientific, concise, informative and practical. [B] Contact Details

European Company Law (ECL) is published under the aegis of the Centre for European Company Law (CECL), an academic partnership of the Universities of Leiden, Utrecht, Maastricht, the Netherlands Uppsala (Sweden) and Rome, LUISS Guido Carli (Italy) (www.cecl.nl). The purpose of CECL is to further the study of company law by focusing on supranational issues. These include both developments in the EU and on other international levels, as well as comparative law. Leiden University acts as the leading partner in CECL, with Professor Steef M. Bartman, as coordinating director. ECL aims to be interesting for both practising and academic lawyers in the field of European company law. There are six issues of ECL per year. Two of these (April and October) concentrate on specific topics. The other issues contain articles on various subjects and may also include country reports of a general nature, highlighting important developments in a number of EU jurisdictions, as well as columns that offer summaries of recent EU legislation, ECJ case law and of selected articles from various national legal periodicals.

EDITORIAL BOARD

HOUTHOFF BURUMA André G. de Neve e-mail: [email protected]

(Main Editor), Professor of Company Law at Leiden University, the Netherlands e-mail: [email protected] ANDREAS CAHN Director of the Institute for Law and Finance, Johann Wolfgang Goethe-University, Frankfurt, Germany e-mail: [email protected] BARBARA DE DONNO Professor of Comparative Private Law, LUISS Guido Carli, Rome, Italy e-mail: [email protected] ADRIAAN DORRESTEIJN Professor of International Company Law at Utrecht University, the Netherlands e-mail: [email protected] CHRISTOPH VAN DER ELST Professor of Law and Management, Tilburg University, The Netherlands e-mail: [email protected] HOLGER FLEISCHER Professor of Law, Director of the Max Planck Institute for Comparative and International Private Law, Hamburg, Germany e-mail: [email protected] MARCO LAMANDINI Full Professor of Company Law at the University of Bologna, Italy e-mail: [email protected] FRANCISCO MARCOS IE Law School, Madrid, Spain e-mail: [email protected] KID SCHWARZ Professor of Company Law at Maastricht University, the Netherlands e-mail: [email protected] DANIEL STATTIN Professor of Corporate Law, Uppsala University, Uppsala, Sweden e-mail: [email protected] ERIK WERLAUFF Professor of Company and Business Law at Aalborg University, Denmark e-mail: [email protected] JAAP WINTER Professor of International Company Law at the Universiteit van Amsterdam, the Netherlands e-mail: [email protected]

LOYENS & LOEFF / UTRECHT UNIVERSITY Tineke

STEEF BARTMAN

CONTRIBUTING INTERNATIONAL LAW FIRMS

Jan Louis Burggraaf e-mail: [email protected] BAKER & MCKENZIE Jeroen Hoekstra e-mail: [email protected] DE BRAUW Geert Potjewijd e-mail: [email protected] DLA PIPER Marnix Holtzer e-mail: [email protected] ALLEN & OVERY

EUROPEAN COMPANY LAW

Leiden University, the Netherlands e-mail: [email protected] THOMAS PAPADOPOULOS European University, Nicosia, Cyprus e-mail: [email protected] PAVLOS MASOUROS

Lambooy

e-mail: [email protected] STIBBE Christian van Megchelen e-mail: [email protected] COUNTRY REPORTERS KARIN EKLUND University Lecturer in Corporate Law, Uppsala University, Uppsala, Sweden e-mail: [email protected] THOMAS PAPADOPOULOS Lecturer at the Department of Law of the European University, Nicosia, Cyprus e-mail: [email protected] FEDERICO RAFFAELE Assistant Professor of Comparative Law and Research Fellow in Corporate Law, LUISS Guido Carli, Rome, Italy e-mail: [email protected] FRANÇOIS CARLE & ISABELLE DESJARDINS

e-mail: [email protected], idesjardins@carlara. com CHRISTOPH VAN DER ELST Professor of Law and Management, Tilburg University, The Netherlands e-mail: [email protected] BOHUMIL HAVEL Institute of Law, Czech Academy of Science, Prague, Czech Republic e-mail: [email protected] FRANCISCO MARCOS Instituto de Empresa Business School, Madrid, Spain e-mail: [email protected] PAVLOS MASOUROS Assistant Professor of Corporate Law, Leiden University, the Netherlands, Attorney-at-Law, Athens, Greece e-mail: [email protected] BEATE SJÅFJELL Centre for European Law, Faculty of Law, University of Oslo e-mail: [email protected] RAFAL STROINSKI Warsaw University, Poland e-mail: [email protected] CHRISTOPH TEICHMANN University of Heidelberg, Germany e-mail: [email protected] ERIK WERLAUFF Aalborg University, Denmark e-mail: [email protected]

Published by: Kluwer Law International PO Box 316 2400 AH Alphen aan den Rijn The Netherlands Website: www.kluwerlaw.com DISTRIBUTION

Sold and distributed in North, Central and South America by: Aspen Publishers, Inc. 7101 McKinney Circle Frederick MD 21704 United States of America E-mail: [email protected] Sold and distributed in all others countries by: Turpin Distribution Services Ltd. Stratton Business Park Pegasus Drive, Biggleswade Bedfordshire SG18 8TQ United Kingdom E-mail: [email protected] European Company Law Journal is published six times per year. Subscription prices for 2015 including postage and handling: Print subscription prices: EUR 710/USD 947/GBP 522 Online subscription prices: EUR 657/USD 878/GBP 484 Printed on acid free paper. S H O R T T I T L E A N D Q UO T A T I O N ISSN: 1572-4999 © 2015 Kluwer Law International BV, The Netherlands All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, mechanical, photocopying, recording or otherwise, without written permission from the publisher. Permission to use this content must be obtained from the copyright owner. Please apply to: Permissions Department, Wolters Kluwer Legal,

EDITORIAL SECRETARY

76 Ninth Avenue, 7th floor, New York, NY10011, USA. E-mail: [email protected].

Leiden University, the Netherlands e-mail: [email protected]

CORNELIS DE GROOT

122

JUNE 2015, VOLUME 12, ISSUE 3

Manuscripts should be submitted to ECL’s main editor, e-mail: [email protected] and to its editorial secretary, e-mail: [email protected] [C] Submission Guidelines [1] Manuscripts should be submitted electronically, in Word format, via e-mail. [2] Submitted manuscripts are understood to be final versions. They must not have been published or submitted for publication elsewhere. [3] Contributions should have a range of approximately 4,000 to 5,000 words (footnotes excluded). [4] Only articles in English will be considered for publication. Manuscripts should be written in standard English, while using ‘ize’ and ‘ization’ instead of ‘ise’ and ‘isation’. Preferred reference source is the Oxford English Dictionary. However, in case of quotations the original spelling should be maintained. In case the complete article is written by an American author, US spelling may also be used. [5] The article should contain an abstract, a short summary of about 100 words. This abstract will also be added to the free search zone of the Kluwer Online database. [6] A brief biographical note, including both the current affiliation as well as the e-mail address of the author(s), should be provided in the first footnote of the manuscript. [7] An article title should be concise, with a maximum of 70 characters. [8] Special attention should be paid to quotations, footnotes, and references. All citations and quotations must be verified before submission of the manuscript. The accuracy of the contribution is the responsibility of the author. The journal has adopted the Association of Legal Writing Directors (ALWD) legal citation style to ensure uniformity. Citations should not appear in the text but in the footnotes. Footnotes should be numbered consecutively, using the footnote function in Word so that if any footnotes are added or deleted the others are automatically renumbered. [9] Authors should make sure that abbreviations are explained when used for the first time. [10] Tables should be self-explanatory and their content should not be repeated in the text. Do not tabulate unnecessarily. Tables should be numbered and should include concise titles. [11] Heading levels should be clearly indicated. For further information on style, see the House Style Guide on the website: www.kluwerlaw.com/ContactUs/ [D] Review Process [1] Before submission to the publisher, manuscripts will be reviewed by the Board of Editors and may be returned to the author for revision. [2] The journal’s policy is to provide an initial assessment of the submission within thirty days of receiving the posted submission. In cases where the article is externally referred for review, this period may be extended. [3] The editors reserve the right to make alterations as to style, punctuation, grammar etc. [4] In general the author will not receive proofs of the article. Proofreading will be taken care of by the Board of Editors. [E] Copyright [1] Publication in the journal is subject to authors signing a ‘Consent to Publish and Transfer of Copyright’ form. [2] The following rights remain reserved to the author: the right to make copies and distribute copies (including via e-mail) of the contribution for own personal use, including for own classroom teaching use and to research colleagues, for personal use by such colleagues, and the right to present the contribution at meetings or conferences and to distribute copies of the contribution to the delegates attending the meeting; the right to post the contribution on the author’s personal or institutional web site or server, provided acknowledgement is given to the original source of publication; for the author’s employer, if the contribution is a ‘work for hire’, made within the scope of the author’s employment, the right to use all or part of the contribution for other intra-company use (e.g. training), including by posting the contribution on secure, internal corporate intranets; and the right to use the contribution for his/her further career by including the contribution in other publications such as a dissertation and/or a collection of articles provided acknowledgement is given to the original source of publication. [3] The author shall receive for the rights granted (subject to signing the ‘Consent to Publish and Transfer of Copyright’ form) two free copies of the issue of the journal in which the article is published, plus a PDF file of his/her article.