Littérature scientifique sur le sujet « Arbitrato. Public Companies »

Recent amendments to the Italian Law of Civil Procedure (‘ICCP’) have not removed the existing ban on intra-corporate dispute (‘ICD’) arbitration for Italian listed companies. As we believe that ICD arbitration can provide redress to shareholders and improve management accountability, we criticize this approach and develop a ‘model’ for ICD arbitration that brings together (1) the corporate governance perspective, for a proper balance between the flexibility of the adoption of the arbitration clause and the protection of minority shareholders; (2) the capital markets perspective, for the disclosure to the public of relevant information in order to protect investors and build trust; and (3) the arbitration perspective, for the adoption of specific rules (a) to allow the participation of a potential great number of parties to the procedure, (b) to ensure the appointment of qualified and independent arbitrators in a typical multi-party dispute, and (c) to ensure that arbitrators may adopt conservatory and interim measures. Finally, we suggest that it might be beneficial to promote such model also at the EU level, as such benefit would be, at least, two-fold, both in terms of harmonization (or, better, level playing field) of the corporate law enforcement mechanisms and of serving the purposes to which recent EU corporate legislation seems to be leading. Corporate Arbitration, Listed Companies, Intra-Corporate Disputes

Before dissolving a company, arbitrators should make sure that the company itself is a party to the arbitration proceedings. In a recent case the Paris Court of Appeal judged that the failure to summon a company whose dissolution is requested renders the award null and void. While this solution may not come as a surprise, the fact that this requirement is based on international public policy is a novelty. This case highlights the need to clarify arbitrators’ powers in the context of companies’ corporate lives.

The objective of this paper is to provide an analysis concerning some criteria adopted by Brazilian courts in matters of arbitrability of disputes involving state-owned companies. To this end, I initially examine the characteristics of the legal regime of state-owned companies. Then, the evolution of the jurisprudence of the Federal Court of Accounts and the Superior Court of Justice is examined, with the aim of identifying the main controversial issues regarding the use of arbitration by public agencies. In the last part, the article focuses on three criteria adopted by Brazilian case law to deny the arbitrability of disputes with state-owned companies: a) the distinction between state-owned companies providing public services and those exploiting economic activities; b) the discrimination between main and support activities of the state-owned companies; and c) the extension of the statutory arbitration clause to the controlling shareholder of the state-owned company. In the end, it is concluded that arbitration is an adequate and necessary instrument for the persecution of public interests that legitimizes the State’s entrepreneurship, although its consolidation still demands the overcoming of traditional dogmas of the Brazilian administrative law that are incompatible with the business ends of the state-owned companies. Arbitration; Public Administration; state-owned companies; arbitrability.

The company law rules governing commercial companies, being a special sphere of substantive law, are not and cannot by themselves constitute a closed regulatory system. Practical legal life of numerous substantive institutes of company law is possible only within the complete legal surrounding and in delicate cooperation between substantive and procedural regulation. At this moment, the Serbian legal scene is characterized by an evident gap between legislative aspiration which covers the sphere of substantive provisions governing commercial companies (Law on commercial companies) aimed at following the trends of the company law regulation in the leading European countries and harmonised regulation within this sphere on the level of EU and regulation which covers the procedure of enforcement of those institutes in practice, both contentious and extra contentious, both judicial and arbitration. Of course, this does not mean that regulation of substantive law institutes, especially the institutes which have their procedural side, is always fully acceptable and exemplary in all their aspects. In this article the author critically discusses, before all, shortcomings of Serbian companies' regulation which governs substantive law institutes having corresponding procedural aspects: arbitrability of internal company disputes (companies' members - members, members - board of directors, companies' members - company) and special companies' actions that are recognized and regulated by law (arbitrability of derivative action, arbitrability of individual action, arbitrability of class action); shortcomings of existing substantive legal regime of derivative action, which are the main reason of the scarce presence of this type of action in judicial practice; shortcomings of existing legal regime of individual action (especially on the level of covering the zone of reflective losses), as well as the shortcomings of legal regime of the class action as a kind of collective action (especially of its legal effect on non-participants in the procedure before courts or arbitration) and, finally, representative actions. The author draws the conclusion that it is necessary to review the substantive regulation in order to remove any possible ground for interpretation that internal companies' disputes are not arbitrable (capable of being resolved by arbitration under the arbitration agreement). In the same vein, the author submits that it is necessary to thoroughly modify the existing procedural regulation, in order to make procedural aspects of company lawsuits more straightforward and indisputable (litispendancy objection and res iudicata objection - the need to establish only the objective identity of the subject-matter of the disputes, procedural costs related to derivative actions, legal effect of class action on non-participants in litigation or arbitration procedure, practical aspects of representative legal actions and so on). Finally, the author proposes the introduction of the possibility for alternative competence of public notaries for numerous extra-contentious procedures which can now be brought only before commercial courts. As an argument in favour of this proposal, the author puts forward that, at present, public notaries are competent to perform various non-contentions procedures (this could partly compensate for their almost complete non-justifiable exclusion from the sphere of company law, which is the current approach taken by the Serbian public notary law).

The ability of state entities to submit to international arbitration remained the subject of hot debate for a long time under Brazilian law. Brazil’s resistance to arbitrability of disputes involving public administration was not very different from the resistance faced by other countries around the world. Brazil began to overcome traditional hostilities related to arbitration involving state entities in 2005, as a result of legislative reforms, which expressly authorized the use of arbitration in public-private partnerships (PPPs) and in concession contracts, as well as favorable decisions rendered by the Superior Court of Justice. In light of these developments, it can now be said that Brazilian law fully and finally recognizes the capacity of state entities to submit to arbitration. This recognition provides greater security to investors that contract with Brazil’s state entities, and ultimately contributes to the country’s economic growth.

The affirmation of resolution through arbitration of commercial disputes in the field of contract law, both at national levels (as an undisputable trend of varying degrees) as well as at the international level, has raised the issue of the possibility of resolving intercompany disputes in this manner, in order to extend the freedom of will of investors from the domain of establishing companies to include the domain of the freedom of choice of a forum for resolving possible disputes arising from numerous legal relations of this kind. However, unlike contracts, with the primacy of free will compared to limitations (the relation of rules and exceptions), the sphere of intercompany relations, although basically contractual by its origin, has, in its functioning, an emphasized need to resolve the conflict of contract and company law in order to make the arbitrability of these disputes realistically possible, while on the other hand, compared to the contract law, the sphere of company law is always more in the focus of attention of national public orders, as a universal institute (regardless of its scope), which represents an obstacle to arbitrability of these disputes. In this paper, the author first analyses the legal nature of the constituent acts of companies (the founding act and statute of a joint stock company) in the context of an arbitration agreement, on which the arbitrability of intercompany disputes can solely be based, finding that their contractual nature is a serious obstacle to mandatory arbitrations of these disputes (if these acts with this clause are adopted by majority of votes), and that the theory of adhesion contracts could be a solution to encourage arbitrability, but only for closed type of companies, while this would not be possible in the case of a public joint stock company, especially in the case of non-professional shareholders because of the need to additionally protect them through consumer law. The author continues by analysing the notion of intercompany disputes and systems of possible objective arbitrability (ratione materiae) of these disputes, finding that the Serbian arbitration law and company law, especially with regard to the possible restrictive concept of „exclusive jurisdiction of commercial courts“ for these disputes, has at least serious reasons for changes in favour of strengthening their arbitrability, with certain necessary individual exclusions in case of the dominance of public order interest. Finally, the author also analyses certain aspects of multiparty nature of the intercompany disputes, especially regarding public joint stock companies, as possible procedural obstacles to their resolution through arbitration, even in cases of their possibly undisputable objective arbitrability.

L'arbitrato societario fra resistenze ed aperture nell'ordinamento italiano. L’arbitrato societario per le società quotate negli ordinamenti stranieri. L'arbitrato per le public companies nell’ordinamento statunitense. L'esclusione delle società facenti ricorso al mercato del capitale di rischio nell'ordinamento italiano. Adesione alla società, rilievo reale dell'atto costitutivo e consenso alla clausola compromissoria.

AbstractThe chapter examines the evolution of the role of the home state in foreign investment law. Traditionally, such a role was essentially limited to norm-setting and protecting nationals and national companies abroad. Protection was typically offered through diplomatic protection, which was based on the legal fiction that the state was vindicating its own right. The conclusion of modern investment treaties, the progressive emancipation of foreign investors and the development of investor-state arbitration meant a marginalisation of the home state. Some recent treaties, however, have paved the way for a new role for the home state that goes well beyond protection of its nationals and national companies. Innovative provisions have introduced obligations and responsibilities for the home state, especially with regard to the fight against corruption and the liability of its own investors. It remains to be seen to which extent these provisions will spread across the international community of states.

The problem of bankruptcy prevention is growing in importance under conditions of the decline of economic growth and quarantine restrictions caused by the COVID-19 pandemic, which has significantly affected the domestic economy. In the second reading, the Ukrainian Parliament adopted amendments to the Code of Ukraine on the Bankruptcy Procedure, which banned moratorium on bankruptcy initiation by the creditors. Thus, there was approved “Draft Law on Amendments to Certain Legislative Acts to Regulate Certain Issues of Bankruptcy Procedures for the Period of Implementation of the Measures Aimed at Preventing the Emergence and Spread of the COVID-19 Pandemic” No 4220. This moratorium was introduced in the framework of measures for business support due to the COVID-19 pandemic. Quarantine restrictions caused by the COVID-19 pandemic have affected many businesses throughout the world. First of all, this is due to strict quarantine measures imposed by the governments of many countries: closure of shopping and entertainment centers, a ban on all public events, restrictions on the movement both within the country and when crossing its borders, reduction of production (due to the establishment of limits for the simultaneous stay of workers in one room), etc. Quarantine has ruined consumer sentiment and almost halted several industries including retail, hotel and restaurant business, air travel. The amount of budget revenues has decreased. As a result of quarantine, Ukrainian companies have frozen investments and production chains, and some of them are on the verge of bankruptcy. The main economic sign of bankruptcy is reduced to a single point. It is inability of the enterprise to meet the requirements of creditors. However, in order to avoid numerous bankruptcies on insignificant debts, the minimum amount of debt is determined, at which a bankruptcy case can be initiated. Macroeconomic efficiency of the institution of bankruptcy directly depends on the systemic nature of the relevant fragment of the national legislation, availability of the detailed representative economic statistics and the level of conceptual development of effective anti-crisis regulation. At the level of microeconomics, bankruptcy means not just stopping the local production process, i.e. the loss of a sustainable source of permanent income and social security. And at the level of macroeconomics there is the opposite situation; bankruptcy means rehabilitation of production from inefficient forms of its organization and inefficient management, overcoming cyclical recession and modernization of the technological base of production. A modern approach to the study of bankruptcy is associated with the definition of objective economic signs of corporate bankruptcy and specific signs of financial insolvency of the enterprise, assessment of the effectiveness of basic legal procedures for bankruptcy (supervision, external management, bankruptcy proceedings, and amicable settlement). Financial preconditions for insolvency and bankruptcy of the enterprise are analyzed in accordance with Methodical recommendations on detection of signs of insolvency of the enterprise and signs of concealment of bankruptcy, fictitious bankruptcy or bringing to bankruptcy; Methodology of in-depth analysis of the financial and economic condition of insolvent enterprises and organizations. Financial statements are the sources of information for analysis and detection of signs of bankruptcy. To predict the risk of bankruptcy, it is necessary to be guided by regulatory sources, data of accounting, statistical, operational accounting and reporting. Necessary information can also be obtained from documentary inspections, audits, orders, directives, economic and legal materials (contracts). To study the results of financial and economic activities of the object of study there can be used accounting data, which contains extensive analytical information. According to primary documents, it is possible to establish the causes of overspending, payment of fines, perpetrators, determine the legality and appropriateness of business transactions. The main sign of bankruptcy is inability of the company to comply with creditors’ claims within three months from the date of payment. After this period, creditors have the right to apply to the arbitral tribunal to declare the debtor company a bankrupt. Bankruptcy is the result of interaction of internal and external factors. Due to the limitations of the COVID-19 pandemic, 1/3 of the business destruction is associated with internal factors and 2/3 with external factors. Bankruptcy characterizes realization of catastrophic risks of the enterprise in the course of its financial activity, as a result of which it is unable to meet the requirements set by creditors and meet obligations to the budget. Among a wide range of methods used to determine the characteristics of various phenomena and processes, to identify the features of development, to study the dynamics of changes at the enterprises under conditions of the threat and development of crisis, there can be distinguished the main ones: expert (expert assessments); research and statistical; analytical; method of analogues. The whole set of methods for assessing the state of the enterprise is based on three main approaches, which include: the use of a system of indicators and informal indicators (criteria and features); setting the maximum number of indicators in different areas of the enterprise; creation of a separate system of integrated indicators. In the practice of analysis and assessment of the enterprise state the most common approach is the one that involves the use of a system of indicators and informal indicators. Integrated factor models developed using multidimensional multiplicative analysis are often used to assess the probability of bankruptcy and the level of creditworthiness of the enterprise. Bankruptcy forecasting methods based on the use of financial ratios are as follows: Two- and five-factor models for estimating the probability of bankruptcy based on Altman’s “Z-score”; Model of Roman Lis, W. Beaver; Method of rating assessment of financial condition (rating number); R – bankruptcy risk prediction; Taffler’s prediction model; Fulmer’s model; Springgate model; Generalized model developed on the basis of discriminant function; PAS-ratio. Integrated factor models of E. Altman, Lis, Taffler, Tishau and others are often used to assess the probability of bankruptcy and the level of creditworthiness of the enterprise (Table 1), developed using multidimensional multiplicative analysis.

FIDIC rules are generally accepted as standard contract for construction projects in international commercial practice. Disputes arising from standard agreements are often referred to as international arbitration rules. However, at the beginning of the difficulties encountered in the arbitration proceedings under the FIDIC Rules at the international arbitration institutions, the question is whether the engineer is impartial. On the other hand, the fact that the Dispute Adjudication Board (DAB) has been used effectively is also an important issue. It has been revealed through the case-law that the adoption of the FIDIC Rules by the domestic laws of the parties has not yet reached the desired stage. Aside from the fact that arbitral awards are confronted with public authority during the enforcement phase, there are also difficulties of parallel proceedings that national courts have resorted to legal proceedings although there is an agreement involving arbitration clauses. The protection of the investor, the equitable treatment of the investor and the protection against expropriation are all on the agenda and a direct link can be established between FIDIC and Bilateral Investment Treaties.