Cross-border Divisions Research Articles

Appraising the New EU Appraisal Regime

In 2019 the European Union adopted the Mobility Directive(Directive (EU) 2019/2121 of the European Parliament and of the Council of 27 November 2019 amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions OJ L 321, 12 December 2019, pages 1–44), which improved the rules governing cross-border mergers and introduced harmonized rules for cross-border conversions and cross-border divisions. Most notably, the Directive introduced a harmonized regime for the exercise of appraisal rights in case of crossborder mergers. The new rules, which significantly strengthen minority shareholder protection, are in line with the EU’s goal of fostering capital markets. The present article will seek to analyse the new appraisal regime introduced by the Mobility Directive and offer an evaluation of the regime and its shortcomings. Part I of this article will offer an introducing to appraisal rights and appraisal litigation and examine whether long-standing fears regarding abuse of appraisal rights are justified. Part II will set out the new appraisal regime, while Part III will offer an evaluation of the new provisions and discuss their shortcomings.

The impact of the embedded global value chain position on energy-biased technology progress: Evidence from chinas manufacturing

Energy-saving technology progress can solve the contradiction between economic growth and energy consumption. This paper divides China's manufacturing into 19 industries, describes the global value chain (GVC) embedding position trend, explores its impact on energy-biased technology progress and researches the mechanisms. The results show that (1) China's manufacturing technology progress tends toward energy conservation, and most industries participate in the GVC through shallow cross-border division. The simple embedding position is higher than the complex embedding position, and the physical position in the GVC is relatively stable; however, the economic position fluctuates significantly. (2) The GVC embedding position and the energy-biased technology progress show an inverted U-shaped curve relationship. Only when it enters the right side of the turning point and climbs to the high end of the GVC can it promote the development of energy-saving technology progress; the effects of the embedding method, embedding direction and position are heterogeneous. (3) The GVC embedding position's spillover and market competition effect promote energy-saving technology progress, while path dependence and the pollution transfer effect promote progress in energy-consuming technology.

Zaštita vjerovnika pri domaćim i prekograničnim podjelama društava kapitala

The division of a company is a material status alteration which is marked by partial universal succession. Particular rights, obligations and legal relations of a company being divided are transferred to newly formed companies or to existing recipient companies by force of law. The principle of creditors’ protection of the company being divided is applied in this procedure. This means that they must not be disadvantaged in the settlement of their claims against the companies involved in the division. In divisions by acquisition, the interests of the creditors of the recipient company must be also protected. In cross-border divisions, the creditors meet with a risk of bringing proceedings for the settlement of their claims against the newly formed company (principal debtor) in a different Member State. In order to protect the creditors’ interests, the regulations provide for institutional protective means that ensure the liquidity and solvency of companies after the division, and individual protective means that serve to secure or settle their claims against companies involved in a division.

Cross-border division of labor and China’s border control upon Myanmar migrants

Border cities in Yunnan, China, have become attractive destinations among Myanmar migrants. Using Ruili as a case study, this paper analyzes China’s border control upon Myanmar migrants to create a cross-border division of labor. It finds that China experiments with a flexible model of border control by allowing Myanmar migrants to cross the border with relative ease and integrate into the local labor market, while denying their rights to civil protection and limiting their mobility to other Chinese cities. This model promotes and regulates the movement of Myanmar migrant workers, constituting a pragmatic order to facilitate the logic of capital accumulation. The cross-border division of labor in production between Ruili and northern Myanmar articulates a spatially uneven structure of capitalist production that creates incentive and hinderance to low-end workers’ transnational migration and, moreover, reflects the Chinese state’s efforts to encourage industrial relocation from the affluent coast to the poor hinterland to address regional disparity.

Podział spółki przez wyodrębnienie

This study concerns the introduction of a new type of division into the domestic legal order – the so-called division by separation, as part of the wider problem of cross-border mobility of companies, regulated in Directive 2017/1132 as amended by Directive 2019/2121. The current legal regulation of the Code of Commercial Companies does not know the structure of division by separation, which is used to build corporate vertical relations. All division modes known to Polish commercial law are horizontal divisions. Meanwhile, as a result of the implementation of the directive in the cross-border dimension, it will be possible to make a cross-border division by separation also with the participation of Polish companies (i.e. companies subject to the Polish Commercial Companies Code). Failure to supplement the provisions of the Commercial Companies Code with the division by separation available to interested companies – under national procedures, without a cross-border element – would lead to the phenomenon of reverse discrimination. Reverse discrimination is a legal phenomenon that is unfavorable both economically and socially. Due to the principle of numerus clausus of transformation procedures and due to their regulation mostly by mandatory norms (iuris cogentis), it would not be possible to apply such a procedure without an explicit normative basis. Division by separation may become an interesting instrument for building vertical holding structures (and, in effect, even multi-stage), an alternative to a simple contribution in kind to a daughter company. Therefore, the study presents in detail the essence of the division by separation.

Globalizacija i ekonomska politika

Economic globalization refers to the growing interdependence of world economies as a result of the growing volume of cross-border trade in goods and services, the flow of international capital and the wide and rapid spread of technology. This reflects the continuous expansion and mutual integration of market borders, and represents an irreversible trend for the economic development of the whole world at the turn of the millennium. The rapid growth of the importance of information in all types of production activities and marketing are the two main driving forces of economic globalization. In other words, the rapid globalization of world economies in recent years has been largely based on the rapid development of science and technology, arising from an environment in which the market economic system has spread rapidly around the world, and evolving through a growing cross-border division of labor. chains within companies of different countries.

Creditor Protection and Divisions – Did the CJEU Get It Right?

Abstract The CJEU’s I.G.I. decision deals with an important aspect of creditor protection in divisions. The Court holds that the actio pauliana under Italian law may be applied to divisions, notwithstanding that such a protective measure is not foreseen in art. 146 and 153 Directive 2017/1132/EU. We argue that the Directive’s ex post protective measures should be understood as fully harmonizing provisions. The decision fails to strike the right balance between the interests of all relevant stakeholders involved, especially between different groups of creditors, and unduly impairs legal certainty. However, if one takes the decision as a basis, the judgment gives Member States considerable room to introduce or maintain additional safeguards in their national legal systems. We show that national legislators should not give in to this temptation, neither for domestic nor for cross-border divisions.

Cross-border Corporate Mobility in the EU: Empirical Findings 2020 (Edition 1)

This report on cross-border mobility in the European Union focuses, in its fifth edition, on cross-border mergers, cross-border conversions, cross-border divisions as well as on SEs within the period of 2007 to 2020.

O potrzebie implementacji do prawa polskiego przepisów dotyczących transgranicznego podziału spółek kapitałowych (uwagi na tle dotychczasowych rozwiązań czeskich)

Polski ustawodawca został postawiony przed koniecznością implementacji nowych uregulowań dotyczących podziału transgranicznego. Uregulowania te, niezbędne do wykonania dyrektywy 2019/2121/UE, powinny zostać wprowadzone w życie najpóźniej do 31 stycznia 2023 roku. W związku z tym głównym celem niniejszego opracowania jest analiza procedury transgranicznego podziału zaproponowanej przez ustawodawcę europejskiego we wspomnianej dyrektywie i porównania jej z rozwiązaniami czeskimi, które obowiązują obecnie. W artykule odniesiono się także do miejsca transponowania przepisów, definicji legalnej połączenia transgranicznego oraz zakresu samej regulacji.

Material States: China, Russia, and the incorporation of a cross-border indigenous people

AbstractThe once-unified indigenous northeast Asian people known as the Hezhe in China and the Nanai in Russia are little-discussed in any discipline, but their long experiences of cross-border division and, more recently, renewed inter-community contact, offer us a new framework for understanding both Chinese and Russian states in the region. As I show here ethnographically, today's Hezhe in northern Heilongjiang province (China) and Nanai in Khabarovsk territory (Russia) live amid the physical furniture of very different polities. But rather than merely reflecting their separation, I argue, these distinct surroundings in fact invite us to consider how the incorporation of Nanai/Hezhe into China and Russia have beenconstitutedin important ways by the uses and flows of material objects. In support of this argument, which draws on recent anthropological insights concerning materiality to push back against existing identity-, landscape-, or production-focused theories of Chinese and Russian power, I examine sources in several languages to develop alongue duréeaccount of materially mediated interactions between Nanai/Hezhe and China and Russia. From early imperial tribute through to socialist command economies to postsocialist cross-border trade, I show how—with notable continuity—states have been embodied in flows and usage of goods, bringing about the incorporation of Hezhe and Nanai into separate realms with immanent material existences.

Harmonizacija prekograničnih kretanja privrednih društava u pravu EU

In this paper the author presents an overview of the EU legal framework for cross-border company's mobility. It gives a historic background to various obstacles related to cross-border mobility and puts it into the context of the European Court of Justice decisions on the various issues of right of establishment. EU Company Law Directive on Cross-border Mobility regulates cross-border conversions (resulting in the change of applicable law and at least registered seat of the company) and cross-border divisions for the first time. It also improves already existing regime for cross-border mergers. Directive on CrossBorder Mobility gives an opportunity for various internal market participants, including economically strong as well as smaller business forms to use advantages of predictable, efficient legal procedure to perform cross-border operations. It includes various harmonization instruments in order to protect interests of (minority) shareholders, creditors and employees. Double control, including issuance of the pre-merger certificate in the country of origin and control of the procedure in the destination country before cross-border procedure has been registered and becomes effective provides for optimal co-ordination of national authorities, and offers safe business environment for various market participants.

Economic Globalization, Informality and Informal Employment: The African Perspective

Economic Globalization has a twofold impact on working individuals in developing economies – a surge in informal economic activities and fragmentation of work on one hand and expansion of opportunities, on the other. Economic globalization also implies increasing helplessness in the face of developments in anonymous markets with incalculable consequences, erupting in cross-border division of labor and production. This trend is, and will remain, irreversible. We see globalization as a process that induces countries to embrace greater trade and financial integration. While some businesses in the informal sector have succeeded in finding new markets for their commodities and services, others have completely lost their jobs and industries have seen their profits decline and working conditions deteriorate. This paper evaluates cross-border trade spillover, resulting in a shift from secure forms of employment to insecure forms of self-employment, and informal sector employment transformations. We discover that, cross border trade and financial openness have a positive association with economic ‘informality’ growth and a negative association with labor employment in the informal services industry. The paper contributes to export promotion and import substitution industrialization policy in developing economies. Such policy will provide a safety buffer for the otherwise fragile retail industries, strengthen social protection, improve worker rights and create sustainable employment for informal sector workers.

Cross border mobility: what do we need in practice?

The European Commission is proposing to provide efficient rules for cross-border operations. This article suggests improvements to the cross-border merger provisions in the Consolidated Company Law Directive 2017/1132 to provide better creditor protection and minority shareholder protection, more use of the Business Registries Interconnection Service and a simpler process in simpler cases. It suggests provisions relevant for creditor protection in the case of cross-border divisions, the process to be followed for a cross-border division and a simpler process for simpler cases. It also suggests a process for cross-border conversions and provisions to protect creditors and minority shareholders.

La división del trabajo como una relación socio-espacial, o cómo reconciliar la ciencia económica y la geografía

In economics, not enough attention is being paid to space and geography. In this document I claim that the idea of the division of labor is well suited to overcome this shortcoming and to re-insert geographical thinking in economic analysis. Each division of labor takes place in and is developed through spatial juxtapositions of economic activities, and that is why it consists of socio-spatial relations and processes at various geographical scales, including the home, the city and the global economy. However, a comprehensive analysis of the division of labor, understood not as an abstract principle, but as a real economic practice, not only reveals the geography of the economy. Rather, it is also a powerful tool for analyzing relationships of production. Any division of labor consists of a set of socio-spatial relationships, and it is through these socio-spatial relationships that economic activities, social groups that perform them, and the places in which they so it, are hierarchized. Therefore, in the cross-border division of labor uneven development is the result of a differentiated integration of persons or societies and their locations or regions.

Cross-Border Division of SEs

An SE may be involved in cross-border reorganizations like mergers, divisions, and conversions. This article discusses both cross-border divisions whereby an SE is formed as well as divisions whereby an existing SE is involved.

SEVIC: Beyond Cross-Border Mergers

In SEVIC, the European Court of Justice (ECJ) held that the refusal of a national commercial court to register a cross-border merger may constitute a violation of the freedom of establishment. In the future, this decision will be superseded by the new Cross-Border Merger Directive. Thus, the importance of the SEVIC decision could be doubted. This note, however, shows that SEVIC has significance beyond cross-border mergers, namely with respect to seat transfers, cross-border divisions and cross-border takeovers.

Evolution of Knowledge Intensive Services in a High-tech Region: The Case of Hsinchu, Taiwan

Communication costs have reduced markedly owing to improvements in communication technology. Despite this development, face-to-face interactions facilitated by geographic agglomeration remain important in high-tech innovation activities owing to the ambiguity and uncertainty related to new knowledge. Consequently, location remains a major influence on global strategies of transnational companies, and enables global cross-border divisions of labour in high-tech industries. On the one hand, this phenomenon transforms the geographic distribution and structure in industry; on the other hand, it creates demand for strategic functions in management and organizational innovation. The emergence, introduction and operation of such functions all rely on the support of specialized service industries. During the two decades of development of the Hsinchu Science-based Industrial Park (HSIP), the area around HSIP saw the gradual formation of a distinctive and strong network including production, incubation and research and development (R&D) activities. Within this network, knowledge intensive services provide a crucial interface between the supportive environment and technological infrastructure. This investigation analyses the interactions, geographic transformation and distribution between HSIP firms and producer services around HSIP, as well as the coordination between HSIP firms and research institutions. This investigation found that competition strongly influences the development and geographic transformation of producer services. Together with different industrial resources, they formed production networks. Such networks caused the development and geographic transformation of the Hsinchu area, and thus further influenced the growth of knowledge-intensive service businesses.

Merger as a Method of Establishment: on Cross-border Mergers, Transfer of Domicile and Divisions, Directly Applicable under the EC Treaty’s Freedom of Establishment

An important judgement of 13 December 2005 by the European Court in Sevic finds that the freedom of establishment under the EC Treaty applies directly to cross-border mergers without any need for directives on the matter, as mergers are to be deemed a method of establishment. This contribution analyses the judgment’s far reaching consequences, among them the fact that by analogy, commercial legal persons will be able to transfer from one country to another or to be the object of cross-border divisions by direct application of the principle of freedom of establishment under the Treaty, in other words without any need for harmonisation directives.

The Fukuoka Silicon Sea-belt Project—An East Asian Experiment in Developing Transnational Networks

This article illustrates the recent development of the Fukuoka Silicon Sea-Belt Project in Japan which enhances transnational inter-linkages between regional clusters. Local innovation cluster developing in Fukuok on Kyushu Island, is situated in a wider cross-border division of labour in globalizing economies, especially in the current political economy of East Asia. The development of the semiconductor industry in Kyushu Island is analysed in terms of the developing transnational networks of knowledge production which encompass regions in East Asia.