Lloyd's Maritime and Commercial Law Quarterly
Adrian Briggs
Professor of Private International Law, University of Oxford; Barrister.
THE ROLE OF CHOICE OF LAW RULES IN SHAPING FREE MOVEMENT OF COMPANIES. Miroslawa Myszke-Nowakowska, MSc (Gdansk), PhD (Antwerp). ISBN 978-1-78068-201-3. Intersentia, Cambridge (2014) xiii and 238 pp, plus 53 pp Bibliography. Paperback €75.
Every now and then you are asked to review a book which really tests how well you understand the technical detail of material which lies towards the outer edge of your subject. For this reviewer this was one of those occasions, and the only proper response is to applaud the sustained high quality of the analysis. Dr Myszke-Nowakowska has produced her assessment of the problematic issues of the private international law of companies which lie at the intersections of (i) national systems of private international law which tend to refer questions to the law of the place of incorporation, and those which prefer a connection which identified the “real seat” of the company, and of (ii) those issues of company law which are answered by national laws which have not been harmonised, and those which are, more or less, subject to harmonisation within the European Union, and of (iii) the principles of European law which favour and seek to guarantee freedom of movement, and the right of a Member State to legislate in the interests of its economic stability. Her principal aim is to discern the extent to which rules, which means the divergence in the rules, of private international law bear on the problems caused by these intersections of laws and legal policies. Her secondary aim is to test the extent to which some of these difficulties might be reduced by addressing the issues in a detached and balanced way, rather than leaving this to be done on an ad hoc basis, by the European Court in cases in which national legal policies are thrown into sharp contrast. It appeared to this reviewer that she did it very well indeed.
Free movement is all very well; but, as everyone realises, free movement is really only bearable if most persons – whether workers, or companies, or providers of capital, services, or employment or consumers of capital, services or employment – do not exercise it. One of these days it will be all different, for the European Union will be a borderless territory; but it is not that way now. In a world still made up of Member States, a Member State may not be happy to see companies established within its territory or under its law claiming to be free to depart and reassemble themselves – there are many and varied ways in which this reassembling might be done, and Dr Myszke-Nowakowska looks at them in detail – in another Member State. Certain of the Member States (to say nothing of non-Member States, and statelets) appear to be groaning under the weight of brass plates purporting to be the tangible presence of companies which have exercised their right of free movement: free movement for the purpose of avoiding national taxes. Dr Myszke-Nowakowska does not really ask whether this is a legitimate interpretation of the principle of free movement, or which of the Four Freedoms is fairly understood as the freedom to avoid taxes. It seems to be implicit that, if there is
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