Spaces and Places: A Systems Theory Approach to Regulatory Competition in European Company Law

Abstract

: This article takes issue with the longstanding oppositional themes of harmonisation versus regulatory competition in European company law. Instead of embracing one approach over the other in exclusivity, the article draws attention to the persisting mixture of approaches to an emerging European‐wide law regulating the business corporation. Against the background of an ongoing struggle over identifying the goals and taboos of the European legislator's mandate in regulating the company, the argument put forward here is that this very struggle is reflective of the nature of the evolution of company law in an ‘integrating Europe and a globalising world’. European attempts of developing European company law as part of a larger initiative of improving the Union's potential for innovation and competition are thus likely to meet with the challenges that contemporary Nation States are facing when adapting their modes of regulation and representation to the demands of an increasingly complex and decentralised fields of market activities. Situating the law of the business corporation within the larger theme of European integration on the one hand, and of issues of market regulation, domestic, transnational, and international, on the other, suggests the adoption of a systems theory‐based approach to understanding the boundaries of law in this multilevel and multipolar process.

'New Governance' in European Corporate Law Regulation as Transnational Legal Pluralism

“…33 Recent years have seen significant progress in reaching beyond the obvious obstacles to comparisons by focusing, on the one hand, more clearly on the evolving flexible and hybrid forms of regulation in Europe 34 and, on the other, by sophisticating the underlying comparative methodologies. 35 Again, the emphasis on the paradoxical nature of the emerging regulatory forms as being both embedded in learned regulatory practices from within the Member States and disembedded in terms of evolving within a dramatically globalising market points to the difficulties of disentangling any assessment of ECGR from the larger project of European integration, 36 which is itself inescapably and always tied to processes of globalisation of capital, labour and rights.…”