Cross-border restructuring and insolvency post-Brexit

The Conference of European Restructuring and Insolvency Law (CERIL) published its report on cross-border restructuring and insolvency post-Brexit today. In its report, CERIL highlights the relationship between the EU and the UK after Brexit in the area of restructuring and insolvency law and seeks to formulate a position on the nature and content of a possible future instrument governing that relationship. The report can be found here.

EU Competition Law as a Taxation Regime

Can tax avoidance be anticompetitive?

Google has been in the news for more than one reason. For one, its tax planning has attracted the attention of the public media, and prompted European officials to charge Google with tax avoidance or even tax evasion. The record fines imposed on Google pursuant to the EU’s competition law have made at least as many headlines; Google has appealed, but more cases are pending. These seemingly unrelated events under different legal regimes may be connected, however. The fines levied against Google under EU competition law can be seen as making Google pay its ‘fair share’ to compensate for exploiting loopholes in tax law. However, if the objective is to make Google pay its ‘fair share’, why couldn’t this objective be achieved under tax law?

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Corporate Social Responsibility Debate

On November the 26th of 2018 a debate on the added value of Corporate Social Responsibility (CSR) took place in Leuven. Both prof. dr. Marieke Wyckaert (KU Leuven) and em. prof. dr. Viktor Vanberg (Albert-Ludwigs-Universität Freiburg and Walter Eucken Institut) gave a short lecture and subsequently comment on each other’s point of view. Prof. dr. Joeri Vananroye moderated the debate. You can find the video of this debate below.

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Modernisation of Bankruptcy Procedure Act to enter into force in the Netherlands

A post by guestblogger Jochem Hummelen (NautaDutihl)

On 1 January 2019, the Modernisation of Bankruptcy Procedure Act (MBPA) (in Dutch: Wet Modernisering Faillissementsprocedure) is set to enter into force in the Netherlands. This act, which will apply to bankruptcies opened on or after 1 January 2019, is aimed at updating Dutch bankruptcy law to bring it more in line with modern practice. In this blog post, I give an overview of the background to the MBPA and the most important measures provided for in this law. Continue reading “Modernisation of Bankruptcy Procedure Act to enter into force in the Netherlands”

The Economic and Monetary Constitution

On November the 27th of 2018 emeritus professor Viktor Vanberg of the University of Freiburg gave a lecture at the Research Unit Economic Law of the KU Leuven about the constitutional approach in economics. In his lecture he explained the rules-based approach defended by the Freiburg School of Ordoliberalism and the Viriginia School of Constitutional Economics. You can find the video of this lecture below.

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Glen Weyl presents “Radical Markets” (co-written with E. Posner) at the Brussels’ campus of KU Leuven

Prof. Glen Weyl (Microsoft Research & Princeton University) will present his book “Radical Markets”, co-written by Prof. Eric Posner

Tuesday 4 December 2018 Glen Weyl, Principal Researcher at Microsoft Research and a Visiting Senior Research Scholar at Yale’s Law School and Economics Department, will present at the Brussels’ campus of KU Leuven his book “Radical Markets“, co-written with Eric Posner (University of Chicago).

The Economist called this book “(A)n arresting if eccentric manifesto for rebooting liberalism…the policies they advocate…may help jolt liberals out of their hand-wringing, and shape a new line of market-oriented thinking, as Milton Friedman’s ‘Capitalism and Freedom’ did…refreshing and welcome in its willingness to question received wisdom…(L)iberals must find some antidote to populism and protectionism. A little outlandishness may be necessary.” Nobel Prize laureat Jean Tirole commented: “Whether you are convinced by the specific proposals or not, your confidence in your worldview may well be shattered by the depth and originality of the analysis.
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‘Enterprise liability’ for entities of a group?

Allowing creditors of one member of a corporate group to pierce horizontally to reach the assets of other members

Belgian private law is traditionally very distrustful of asset partitioning in the shape of both owner shielding and entity shielding. It has inherited from the 19th century French doctrine (Aubry & Rau) the idea that: (i) only persons have an estate; and (ii) every person has only one estate. An ‘estate’ (‘vermogen’ / ‘patrimoine’) is a pool of assets which serves as collateral for a pool of liabilities. Accordingly, the traditional théorie du patrimoine entails that a person cannot have separate pools of assets which serve as collateral for separate pools of liabilities. This theory betrays a strong distrust of asset partitioning, both internal and external.

In the beginning of the 19th century the rule ‘one person, one and only one estate’ was generally understood as referring to natural persons. The incorporation of legal persons, particularly of legal persons with owner shielding (limited liability), was exceptional and restricted. It was limited to certain types of activities and subject to governmental authorization. As a result, the 19th century doctrine of ‘one person, one and only one estate’, while at face value barely modified, presently has completely different practical consequences. Presently a natural person can easily incorporate, control and benefit from, one or more legal persons.

This raises the important question: Why is the traditional animus against asset partitioning not an issue, or less so,  in case the technique of the corporate form with legal personality is used to bring about such asset partitioning? Continue reading “‘Enterprise liability’ for entities of a group?”