Czech Yearbook

of International Law

of International Law
Volume IV 2013

Czech Yearbook

Regulatory Measures and Foreign Trade Editors

Alexander J. Blohlvek
Professor at the VB TU in Ostrava Czech Republic

Filip ern
Dr. Iur. Charles University in Prague Czech Republic

Nadda Rozehnalov
Professor at the Masaryk University in Brno Czech Republic

JURIS

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Advisory Board
Jn Azud Bratislava, Slovak Republic Helena Barancov Trnava, Slovak Republic Sir Anthony Colman London, United Kingdom Jaroslav Fenyk Brno, Czech Republic Karel Klma Pilsen, Czech Republic Jn Kluka Koice, Slovak Republic Zdenk Kuera Pilsen, Czech Republic Pierre Lalive Geneva, Switzerland Peter Mankowski Hamburg, Germany Andrzej Mczyski Krakow, Republic of Poland Maksymilian Pazdan Katowice, Poland August Reinisch Vienna, Austria Michal Tomek Prague, Czech Republic Vladimr T Brno, Czech Republic Nikolay Natov Sofia, Bulgaria

Editorial Board
Filip ern Prague, Czech Republic Marcin Czepelak Krakow, Republic of Poland Ludvk David Brno, Czech Republic Jan Knnek Prague, Czech Republic Oskar Krej Prague, Czech Republic Petr Mlsna Prague, Czech Republic Robert Neruda Brno, Czech Republic Monika Pauknerov Prague, Czech Republic Frantiek Poredo Bratislava, Slovak Republic Matthias Scherer Geneva, Switzerland Vt Alexander Schorm Prague, Czech Republic Miroslav Slaan Bratislava, Slovak Republic Vclav Stehlk Olomouc, Czech Republic Ji Valdhans Brno, Czech Republic Olexander Merezhko Kiev, Ukraine

Address for correspondence & manuscripts Czech Yearbook of International Law Jana Zajce 32, Praha 7, 170 00, Czech Republic

www.czechyearbook.org

Czech Yearbook of International Law

Impressum

Institutions Participating in the CYIL Project Academic Institutions within the Czech Republic
Masaryk University (Brno), Faculty of Law, Department of International and European Law [Masarykova univerzita v Brn, Prvnick fakulta, Katedra mezinrodnho a evropskho prva] University of West Bohemia in Pilsen, Faculty of Law, Department of Constitutional Law & Department of International Law [Zpadoesk univerzita v Plzni, Prvnick fakulta, Katedra stavnho prva & Katedra mezinrodnho prva] VB TU Ostrava, Faculty of Economics, Department of Law [VB TU Ostrava, Ekonomick fakulta, Katedra prva] Charles University in Prague, Faculty of Law, Department of Commercial Law, Department of European Law & Centre for Comparative Law [Univerzita Karlova v Praze, Prvnick fakulta, Katedra obchodnho prva, katedra evropskho prva & Centrum prvn komparatistiky, PrF UK] University College of International and Public Relations Prague [Vysok kola mezinrodnch a veejnch vztah Praha] Institute of State and Law of the Academy of Sciences of the Czech Republic, v.v.i. [stav sttu a prva Akademie vd R, v.v.i.]

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Czech Yearbook of International Law

Impressum

Non-academic Institutions in the Czech Republic

Office of the Government of the Czech Republic, Department of Legislation, Prague [ad vldy R, Legislativn odbor, Praha] Arbitration Court Attached to the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic, Prague [Rozhod soud pi Hospodsk komoe esk republiky a Agrrn komoe esk republiky] ICC National Committee Czech Republic, Prague [ICC Nrodn vbor esk republika, Praha]

Institutions outside the Czech Republic Participating in the CYIL Project

Austria University of Vienna [Universitt Wien], Department of European, International and Comparative Law, Section for International Law and International Relations Poland Jagiellonian University in Krakow [Uniwersytet Jagielloski v Krakowie], Faculty of Law and Administration, Department of Private International Law Slovak Republic Slovak Academy of Sciences, Institute of State and Law [Slovensk akadmia vied, stav ttu a prva], Bratislava University of Matej Bel in Bansk Bystrica [Univerzita Mateja Bela v Banskej Bystrici], Faculty of Political Sciences and International Relations, Department of International Affairs and Diplomacy Trnava University in Trnava [Trnavsk Univerzita v Trnave], Faculty of Law, Department of Labour Law and Social Security Law ||| Proofreading and translation support provided by: Agentura SPA, s. r. o., Prague, Czech Republic, and Pamela Lewis, USA.

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Contents

List of Abbreviations ........................................................................................... ARTICLES Jesse Kennedy Protecting Regulatory Measures in Investment Treaty Law ............................................................................................................... Leonid Shmatenko Regulatory Measures through Plain Packaging of Tobacco Products in the Light of International Trade Agreements ....................... Dominik Mokvan | Veronika Vrbov Connecting the Dots: Attracting Foreign Direct Investment through Harmonisation of European Insolvency Law ............................... Nikolay Natov The EU and Foreign Investment: Some Questions after the New Regulation..................................................................................... Alexander J. Blohlvek Regulation of Financial Markets and Money Laundering: Contemporary Trends in European and International Cooperation ............................................................................................................ Libor Klimek Effective Enforcement of Sanctions for Market Abuse in the EU: Introduction of Criminal Sanctions ................................................................

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27

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69

91

105
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Contents

Milue Hrnikov | Filip ern | Jan Havliek A Few Thoughts on the New Common European Sales Law ................... Daniela Novkov International Trade Economic Measures Applied in Slovakia ................ Carmen Adriana Gheorghe Publicity and Protection: A Comparative Analysis of Legal European Protection Granted to Credit and Events Consumers............ BOOK REVIEWS UNIDROIT Principles of International Commercial Contracts 2010 ................................. Anatoliy Dovgert | Vasil Kisil | Private International Law: General Part ............................................................ Milan Jano | Monika Jurov | Marianna Novotn et al. | European Private Law ............................................................................................ Alexander J. Blohlvek | Arbitration in the European Countries ................................................................................................................... Vclav Stehlk | Application of National Procedural Rules in the Context of EU Law .......................................................................................

123 143

159

177 181 184 187 189

NEWS & REPORTS Current Events, Past & Ongoing CYIL/CYArb Presentations ....................... Alexander J. Blohlvek | Lucia Kovov | Jaroslav Krliek Selected Bibliography of Czech and Slovak Authors for 2012 ....................... Important Web Sites ..............................................................................................
Index .........................................................................................................................

197 200 218 225

All contributions in this book are subject to academic review.

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Dominik Mokvan | Veronika Vrbov

Connecting the Dots: Attracting Foreign Direct Investment through Harmonisation of European Insolvency Law
Abstract | Considering the fact that participation in insolvency proceedings may be viewed as an entry-mode for investment in a foreign market, as well as a form of business wind-up, this paper investigates the relation between the quality of insolvency law and foreign direct investment in the European Union. Although foreign direct investments are a cardinal feature in the EU internal market, their definition is missing in the European Treaties. Similarly, despite insolvency laws being harmonized, substantial differences on national levels remain. Apart from an analysis of European Union law, these discrepancies are comparatively addressed by a confrontation of two fundamentally different Member States jurisdictions the traditionally business friendly jurisdiction of the United Kingdom and the dynamically evolving legal system of Slovakia. A focus on efforts striving for the perfection of national insolvency laws should deserve more attention as the economic decline, caused by an on-going financial crisis, has increased the number of insolvency proceedings and inflicted a drop in investment flows.
|||

Key words: Foreign Direct Investment EU Insolvency Regulation Financial Crisis UK Insolvency Act Slovak Bankruptcy and Restructuring Act

Dominik Mokvan is a Ph.D. Candidate at the Faculty of Law of the University of Antwerp, Belgium. He holds Masters degrees from Tilburg Law School and Masaryk University. His research interests lie in the area of European Union internal market law, external relations of the EU and international investment law and arbitration. e-mail: dominik.moskvan@ ua.ac.be Veronika Vrbov is a PhD. candidate at the Faculty of Law of the Pan-European University, Slovakia where she deals with the area of European Insolvency Law. She studied at the Faculty of Law of Comenius University in Bratislava, where she earned a Masters degree and a Juris Doctor degree. She also studied

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I. Introduction
3.01.

The purpose of this paper is to review the relevance of insolvency law to the aptitude of a state to attract foreign direct investment in light of the financial turbulence of the last few years stemming from the burst of the American housing bubble in 2008. The resulting economic downturn took its toll on the economic health of state institutions and businesses, as well as family budgets. The biggest financial crisis since the Great Depression1 still represents persistent risks such as high unemployment, debt, low growth, and poor access to financing. The probability of a much broader freezing up of capital markets and a deeper global crisis may not be ruled out yet.2 Before 2008, investors were less vigilant than they are these days. The serious impact of the credit crunch, huge financial losses, and negative future economic prognoses for the economies of EU countries resulted inter alia in reduced foreign direct investment (FDI).3 Nevertheless, FDI remains an important driver for either gaining access to new markets or cost reduction.4 Investors worldwide are now more prudent in making their investment decisions since the risk of facing insolvency has increased significantly. Therefore, investors wishing to locate their FDI look also for effective insolvency law jurisdictions. What does effective insolvency law mean for investors? It is essential that the local bankruptcy law support the efficient resolution of financial distress.5 Professionals believe that the lack of effective bankruptcy regulations represents one of the major regulatory deficiencies affecting FDI as well as the overall business

International Business law at Tilburg University in the Netherlands, where she earned a Masters degree. e-mail: vrbova.v@gmail.com

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Josh Bivens, Worst Economic Crisis since the Great Depression?, By a long shot, Economic Policy Institute, available at: http://www.epi.org/publication/snapshot_20100127/ (accessed on February 15, 2012). 2 The World Bank, Global Economic Prospects: Uncertainties and Vulnerabilities, (2012), available at: http://siteresources.worldbank.org/INTPROSPECTS/Resources/3349341322593305595/8287139-1326374900917/GEP_January_2012a_FullReport_FINAL.pdf (accessed on February 15, 2012). 3 UNCTAD, World Investment Prospects Survey 2010-2012, 10 (2010), available at: http://www.unctad.org/en/docs/diaeia20104_en.pdf (accessed on February 15, 2012). 4 Deloitte, Investing in Central Europe: Opportunity Knocks 4 (2011), available at: http://www.deloitte.com/assets/Dcom-Global/Local%20Assets/Documents/Tax/dtt_tax_ investinginCE_2011.pdf (accessed on February 15, 2012). 5 Stijn Claessens, Daniela Klingebiel and Luc Laeven, Financial Restructuring in Banking and Corporate Sector Crises: What Policies to Pursue? National Bureau of Economic Research (2001).
1

Connecting the Dots: Attracting Foreign Direct Investment

climate.6 In this paper, we would like to demonstrate that the quality of the relevant insolvency law does have an impact on the investment decisions of foreign investors. Therefore, when promoting economic growth via FDI, it should be borne in mind that strong incentives for the overall improvement of the legal environment are of extreme importance. Since 1989, formerly undemocratic communist Central and Eastern European states as well as those that were formerly part of the Soviet Union, have shifted from an isolation from Western Europe to the gradual re-establishment of political and economic bonds.7 However, only in Hungary has the foreign direct investment risen from 570 million USD in 1990 to 248 billion USD in 2009,8 which is commonly attributed to the legal alleviation of investors concerns about the risks associated with investment. Since the European Union members are undergoing a substantial convergence process from both economic and legal perspectives, the aim of this article is to map the unusual link between FDI and insolvency law as such, as well as the rapprochement of different national insolvency law systems.

II. Freedoms of the Internal Market in the Context of FDI and Portfolio Investments
3.02. From the perspective of an investor, systematic economic repercussions, like the persisting economic downturn in the European Union,9 constitute a liquidity crisis either in terms of a) a discontinuous asset price drop or b) the default of a borrower.10 The default of a borrower is more typical for FDI while a price drop is more applicable to portfolio investment.11
OECD, OECD Reviews of Foreign Direct Investment: Czech Republic 10 (2001), available at: http://www.oecd-ilibrary.org/docserver/download/fulltext/2101111e.pdf? expires=1329316663&id=id&accname=ocid177291&checksum=71EB6323874B4AFC7AF 770C8AFCAE58F (accessed on February 15, 2012). 7 House of Lords European Union Committee, The Further Enlargement of the EU: Threat or Opportunity? Report with Evidence, 53rd Report of Session 200506, London para.68 (2006). 8 UNCTAD, World Investment Report 2010, 172. Available at: http://www.unctad.org/en/docs/wir2010_en.pdf (accessed on June 1, 2012). 9 EUs GDP is expected to fall 0.3% in 2012; Euro area by 0.4%. Eurostat, Real GDP Growth Rate Volume. Percentage Change on Previous Year. Available at: http://epp.eurostat.ec.europa.eu/tgm/table.do?tab=table&init=1&plugin=1&language=en &pcode=tec00115 (accessed on December 11, 2012). 10 DEMOSTHENES TAMBAKIS, STRATEGIC DEFAULT RISK AND GLOBAL LIQUIDITY CRISES: THE CASE OF FOREIGN DIRECT INVESTMENT 2 (2008). 11 The view suggesting the same protection for portfolio investment and FDI is not generally accepted by the international investment law. Inclusion of portfolio investments
6

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3.03.

3.04.

When looking for the definition of scope of investment under the Community law, interaction between essential freedoms of an internal market comes into question. Since investment is a cross-border activity which triggers capital flow and additionally links investors not only to their home countries, but also to the host states, the free movement of persons and capital may shield them. The case law12 regarding the difference between the two closely interactional freedoms explicitly sets forth that the decisive factor for granting protection under the freedom of establishment necessarily requires a definite influence or control of the companys decisions and its activities, while allowing the investor to participate in management of the company involves the free movement of capital.13 Although this distinction is substantial for the identification of protections for portfolio investment14 and FDI under extra-EU BITs, in intra-EU foreign direct investment the two freedoms interact to an appreciable extent.15 Although the definition of foreign direct investment is missing in the European treaties, this is compensated by case law.16 The European Court of Justice defined direct investments in Commission v. Italy17 as
under the protection of BITs with no foundation in the treaty is erroneous, although not uncommon. MUTHUCUMARASWAMY SORNARAJAH, THE INTERNATIONAL LAW ON FOREIGN DIRECT INVESTMENT, Cambridge: Cambridge University Press 9, 196 (3rd ed. 2010). What is more, it is in the host states best interest to attract foreign direct investment instead of portfolio investment since portfolio investment runs the risk of sudden reversal. MATTHIAS BUSSE AND CARSTEN HEFEKER, POLITICAL RISK, INSTITUTIONS AND FOREIGN DIRECT INVESTMENT, Hamburg: Hamburgisches Welt-Wirtschafts-Archiv (HWWA), Hamburg Institute of International Economics, 1 (2005). 12 ECJ Judgment of 09 March 1999, C-212/97, Centros Ltd v. Erhvervsog Selskabsstyrelsen [1999] ECR I-1459; ECJ Judgment of 16 December 2008, C-210/06, Cartesio Oktat s Szolgltat bt [2008]; ECJ Judgment of 30 September 2003, C-167/01, Kamer van Koophandel en Fabrieken voor Amsterdam and Inspire Art Ltd [2003] ECR I-10155; ECJ Judgment of 26 March 2009, C-326/07, Commission of the European Communities v. Italian Republic [2009] ECR I-2291, Council Directive 88/361/EEC. 13 Wolf-Georg Ringe, Domestic Company Law and the Free Movement of Capital: Nothing Escapes the European Court? 42 LRPS 7 (2008). 14 Portfolio investment would then fall within the compass of free movement of capital. 15 ECJ Judgment of 26 March 2009, C-326/07, Commission of the European Communities v. Italian Republic [2009], ECR I-2291, para.36. 16 ECJ Judgment of 12 December 2006, C-446/04, Test Claimants in the FII Group Litigation v. Commissioners of Inland Revenue [2006] ECR-I-11753; ECJ Judgment of 26 March 2009, C-326/07, Commission of the European Communities v. Italian Republic [2009] ECR I-2291; ECJ Judgment of 20 May 2008, C-194/06, Staatssecretaris van Financin v. Orange European Smallcap Fund NV [2008] ECR I-3447; ECJ Judgment of 24 May 2007,C-157/05, Winfried L. Holbck v. Finanzamt Salzburg-Land [2007] ECR I11767. 17 ECJ Judgment of 26 March 2009, C-326/07, Commission of the European Communities v. Italian Republic [2009] ECR I-2291.

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Connecting the Dots: Attracting Foreign Direct Investment

3.05.

investments of any kind made by natural or legal persons which serve to establish or maintain lasting and direct links between the persons providing the capital and the undertakings to which the capital is made available in order to carry out an economic activity... while the shares held by the shareholder enable him to participate effectively in the management of that company or in its control.18 In Test Claimants in the FII Group Litigation, the ECJ among other things affirmed that the notion of direct investment involves (long) lasting economic links.19 This is opposed to the nature of portfolio investment as it is the acquisition of shares on the capital market solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking.20 Compared to somewhat divergent opinions on portfolio investment under general international investment law, European law clearly sets their respective boundaries through the institutional activism of the European Commission and the European Court of Justice. Nevertheless, it should be borne in mind that portfolio investments are shielded by the freedom of capital movement as already indicated. Flows of portfolio investments, despite their already mentioned protection under European law, are not dependent on the quality of insolvency laws for four reasons. First, portfolio investments, although strongly influenced by the current market setting and the price induced on paper in insolvency proceedings, will in most cases lack the intention of a long-lasting activity. Second, most investors do not have any impact on the business policy of the company they invested in, either because the legal instrument does not allow for it, or the amount of shares owned is insignificant. There is also a lack of interest to participate in the corporate governance, potentially leaving room for the investor activism21 such as of institutional investors or so called hedge funds.22 Third, relatively facile transferability of portfolio investment instruments, such as promissory notes and bonds, may incur no entitlement to the protection under certain jurisdictions as

Ibid, para. 35. ECJ Judgment of 12 December 2006, C-446/04, Test Claimants in the FII Group Litigation v. Commissioners of Inland Revenue [2006] ECR-I-11753, para. 180. 20 ECJ Judgment of 28 September 2006, Joined Cases C-282/04 and C-283/04, Commission of the European Communities v. Kingdom of the Netherlands [2006] ECR-I-9155. 21 Marcel Kahan and Edward Rock, Hedge Funds in Corporate Governance and Corporate Control, 155 (5) UNIVERSITY OF PENNSYLVANIA LAW REVIEW 1079 (2007). 22 For difference between the mentioned agents see Andrew Lo, Risk Management for Hedge Funds: Introduction and Overview (2001), available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=283308 (accessed on March 10, 2012)
18 19

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3.06.

was stated in Fedax v. Venezuela judgment.23 Therefore, European Union law or member states insolvency law has little impact on them as some other potential benefits or problems are more obviously associated with such instruments. Fourth, portfolio investments, although theoretically being the entry form in helping indebted or insolvent companies, are often excluded by default from favourable investment protection treatment anchored in bilateral investment treaties, because their withdrawals can precipitate financial crises. This was the case in the Asian financial crisis.24 As for investors, the protection under a bilateral investment treaty (BIT), the most common investment protection framework, can be claimed only by natural persons with the nationality of either contracting states. As for legal entities, the situation is a little more complicated since the traditional doctrine of seat theory or incorporation may be warped by the real economic bond of the company and the state of incorporation25 depending on the wording of the BIT. This may give rise to serious complications in terms of investment26 as well as European insolvency law which shall be elaborated below. International investment law would prescribe the investor to have a sufficient linkage to the country and as such predicts to protect only such connections which are of a genuine character. This argumentation, essentially coming from the illustrious Nottebohm27 case, clearly shows the interaction of international investment and international law in general. The test of a genuine link attracts more attention when the attribution of the states responsibility is in question. But even when contested, the practice in general international law has shown that a formal link is usually only barely

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FEDAX N.V. v. The Republic of Venezuela, ICSID Case No.ARB/96/3, Award of 09 March 1998. 24 MUTHUCUMARASWAMY SORNARAJAH, THE INTERNATIONAL LAW ON FOREIGN DIRECT INVESTMENT, Cambridge: Cambridge University Press 197 (3rd ed. 2010). 25 Saluka Investments B.V. v. Czech Republic, PCA Partial Award of March 17, 2006; Yaung Chi Oo Trading Pte Ltd v. Government of the union of Myanmar, ASEAN Case no. ARB/01/1, Award of March 31, 2003, 42 ILM 540 (2003); Aguas del Tunari v. Bolivia, ICSID Case No.ARB/02/3, Decision on Respondents Objections to Jurisdiction of 21 October 2005. 26 In Phoenix Action v. Czech Republic both combined: Having fled from the Czech Republic and obtained Israeli nationality in 2002, Mr. Beo created an Israeli company to buy the two Czech companies he owned as a Czech citizen living in the Czech Republic, after the actions taken by the Czech Republic against these companies. Phoenix Action Ltd. v. Czech Republic, ICSID Case No. ARB/06/5, Award of April 15, 2009, para.137. 27 Nottebohm case (Liechtenstein/Guatemala) Judgment, ICJ 1955.
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Connecting the Dots: Attracting Foreign Direct Investment

3.07.

sufficient.28 When contemplating the nationality of the investor, Art.18 of TFEU abolishes the discrimination on grounds of nationality, due to the binding standard of non-differential treatment to its nationals within EU, and thus to a certain extent prevents such imbroglio in the intra-European Union area. In the case of Saluka v. Czech Republic,29 the petitioner claimed safeguard of the investment under the Netherlands Czech Republic BIT, although the company incorporated under Dutch law, could be considered solely a shell company with Japanese shareholders. This case, representative of a current trend in investment forum shopping, shows how investors are prone to the selection of more convenient standards of investment protection. Although economically understandable, this matter raises a number of political and social issues. Future EU-wide articulate policy may ensure equal pan-EU standard of protection for investors seated in Member States and it may as well significantly prevent the regulatory race to the bottom.3031 Nonetheless, as far as the social policy guarantees are concerned, fundamental social rights conflict with economic freedoms in the EU internal market as has been recently discussed in the Viking Line32 and Laval33 cases. These cases highlight the significant legal, financial and demographic implications for investors as well as for populations from both old and new Member States of the EU.34

International Law Association, General Public Law and International Investment Law 36 (2008). 29 Saluka Investments B.V. v. Czech Republic, PCA-UNCITRAL Arbitration Rules; IIC 210, Award of 17 March 2006. 30 Although the link between the regulatory race to the bottom on whole-national level and increase in FDI has not been completely proved by studies, the race to the bottom is quite probable if a country has a dominance of certain industry in its economy. Kevin Gray, Foreign Direct Investments and Environmental Impacts Is the Debate Over?, RECIEL 11 (3) 309 (2002). 31 Not only may a regulatory gap imply a race to the bottom. The level of enforcement may make the difference. David Wheeler, Racing to the Bottom? Foreign Investment and Air Pollution in Developing Countries, 10 (3) JED 240 (2001). 32 ECJ Judgment of 11 December 2007, C-438/05, International Transport Workers Federation and Finnish Seamens Union v. Viking Line ABP and O Viking Line Eesti [2007] ECR I-10779 33 ECJ Judgment of 18 December 2007, 341/05, Laval un Partneri Ptd. v. v Svenska Byggnadsarbetarefrbundet et al. [2007] ECR I-5751. 34 Uladzislau Belavusau, The Case of Laval in the Context of the Post-Enlargement EC Law, 9 (12) GERMAN LAW JOURNAL, 2305 (2008).
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III. EU Insolvency Law Reforms and Harmonisation Process

3.08. It is apparent that in the future, the protection of investment in EU law has to be built on a more solid base. Although the European Union indirectly offers substantial protection for investment, current discussions35 show that there is a legitimate expectation for further harmonisation, especially when it comes to the status of investor-state arbitration and capital transfer guarantees. The resolution to the conflict of intra-EU bilateral investment treaties and European law should also offer equal investment protection to all EU nationals. This is currently impossible due to their non-dirigible, yet patulous network and the European investment framework is thus expected to be distinctively harmonised and follow the fate of European Insolvency Law with the introduction of Council Regulation (EC) No 1346/2000 of 29th May 2000 on Insolvency Proceedings (the Insolvency Regulation). Nonetheless, the Regulation is far from flawless and it is expected to have a facelift. This is due to the fact that the recent financial crisis and the serious economic stagnation in the European Union Member States stressed even more the need for European insolvency law reform. Based also on the presumption that disparities between national insolvency laws create competitive advantages or disadvantages and difficulties for companies with cross-border activities, and that insolvency has an adverse impact not only on the business concerned but also on the economies of the Member States. The European Parliament has already created a resolution with recommendations to the Commission on insolvency proceedings in the context of EU company law. According to the International Monetary Fund (IMF), experience has demonstrated that reform in this area can play a major role in strengthening a countrys economic and financial system.36 Attracting FDI is commonly placed high on the agendas of policymakers and is presented to the public as highly desirable due to the immediate employment opportunities as well as to less tangible economic improvements such as technology and knowledge spillover,37
Nikos Lavranos, New Developments in the Interaction between International Investment Law and EU Law 9 LAW & PRACTICE OF INTERNATIONAL COURTS AND TRIBUNALS, 409-441 (2010). 36 Orderly & Effective Insolvency Procedures, International Monetary Fund, Legal Department 1 (1999), available at: http://www.imf.org/external/pubs/ft/orderly/ (accessed on December 22, 2012). 37 Emma Xiaoqin Fan, Technological Spillovers from Foreign Direct Investment A Survey, Development Bank, 18 (2002), available at: http://www.adb.org/Documents/ ERD/Working_Papers/wp033.pdf (accessed February 15, 2012)
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3.09.

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increased productivity and competitiveness of domestic industries.38 Although the positive effects of FDI are massively dependent on a number of factors which are not universal,3940 national policies are of immense significance when considering FDI by investors. In contemplating the placement of investment in a specific country, investors typically look at the difficulty of starting business there41 and other related variables.42 It is desirable to avoid uncertainty concerning FDI policy since it correlates with a low ratio of investment.43 Empirical studies naturally affirm that the effective implementation of laws related to FDI is strongly associated with high levels of FDI stock.44 The increase in transnational insolvencies is naturally linked to FDIs as a form of investment and arises from the growth in international trade as such.45 The complexity of globalization and the proliferation of international business presence facing the bleak insolvency proceedings can be illustrated in many cases, e.g. Barings, or BCCI46 with its offices
Beata Smarzynska, Does Foreign Direct Investment Increase the Productivity of Domestic Firms?, in I SEARCH OF SPILLOVERS THROUGH BACKWARD LINKAGES (2923) World Bank Policy Research Working Paper 13 (2002). 39 Maria Carkovic and Ross Levine, Does Foreign Direct Investment Accelerate Economic Growth? University of Minnesota 13 (2002). 40 For the determinants of the correlation of economic growth and FDI see: Ewe-Ghee Lim, Determinants of, and the Relation Between, Foreign Direct Investment and growth: A Summary of Recent Literature, 01/175 IMF WORKING PAPER (2001). 41 Typical factors considered: (i) The openness to foreign investment by sector; (ii) quality of institutions related to resolving investment disputes; (iii) time, procedures and rules required to set up wholly foreign-owned subsidiaries. Swarnim Wagle, Investing across Borders with Heterogeneous Firms Do FDI-specific Regulations Matter? The World Bank International Trade Department, (5914) POLICY RESEARCH WORKING PAPER 2 (2011). 42 (i) Potential financial risks and benefits to the investor, (ii) the stability of an investment environment, (ii) the availability of appropriate human capital, (iii) access to effective enforcement procedures, (iv) embedded personal and professional relationships and others. Susan D. Franck, Foreign Direct Investment, Investment Treaty Arbitration and the Rule of Law, 19 MCGEORGE GLOBAL BUSINESS AND DEVELOPMENT LAW JOURNAL 337, 339 (2007), available at: http://ssrn.com/abstract=882443 (accessed on February 15, 2012). 43 Elizabeth Asiedu, On the Determinants of Foreign Direct Investment to Developing Countries: Is Africa Different? 14 (2011), available at SSRN: http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=280062 (accessed on February 15, 2012). 44 Swarnim Wagle, Investing across Borders with Heterogeneous Firms Do FDI-specific Regulations Matter?, World Bank International Trade Department, 5914 POLICY RESEARCH WORKING PAPER 44 (2011). 45 Samuel Bufford and others, Bench Book on International Insolvency for United States Judges, Washington D.C.: Federal Judicial Center 2 (2001) available in electronic format: http://www.fjc.gov/public/pdf.nsf/lookup/IntlInso.pdf/$file/IntlInso.pdf (accessed on February 15, 2012). 46 BCCI Holdings (Luxembourg) S.A.
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3.10.

in more than 73 countries ultimately hampering the effective recovery of a creditors claims.47 Conventional approaches may not effectively ensure maximized value available for distribution to creditors and it may not limit systemic costs adequately.48 A lengthy insolvency period may also have very damaging spillover impacts, especially if the company or institution actively trades in global markets.49 More than ever, in cases of financial trouble, effective cross border insolvency proceedings become an essential need for an investor. Recognizing the fact that cases of insolvency with cross-border implications may affect the proper functioning of the internal market,50 the EU has endeavoured to harmonise its insolvency law protection of investors against loss. The European Bank for Reconstruction and Development51 (EBRD) emphasises that the current financial crisis highlights the fact that credit automatically flows to places where creditors are fairly treated and that the modern insolvency regime represents a cornerstone of sustainable economic development. However, EU policymakers are also aware of the fact that establishing the right balance for protection of a creditors rights at both the international and European level is complicated. Despite the existence of EU insolvency directives and regulations, there still exist debtorfriendly jurisdictions among the EU Member states. The Insolvency Regulation applies to an insolvency proceeding whether the debtor is a natural person or a legal person, a trader or an individual. Insolvency proceedings concerning credit institutions, insurance undertakings, investment undertakings holding funds or securities for third parties and collective investment undertakings are covered by Directive 2001/24/EC of the European Parliament and of the Council on the Reorganisation and Winding-up of Credit Institutions. This represents

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Angelos Kanas, Pure Contagion Effects in International Banking: The Case of BCCIs Failure, 8 (1) JOURNAL OF APPLIED ECONOMICS 103 (2005). 48 Richard J. Herring, BCCI & Barings: Bank Resolutions Complicated by Fraud and Global Corporate Structure 32, available at: http://www.iadi.org/Business%20Plans/ Cross_Border_Barings_BCCI_Paper.pdf (accessed on December 17, 2012) 49 Ibid. 50 European Union, Insolvency Proceedings: Summaries of EU Regulations, available at: http://europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in _civil_matters/l33110_en.htm (accessed on February 15 2012). 51 European Bank for Reconstruction and Development is the first international financial institution of the post-Cold war period. The EBRD is the only transition bank and today it works in 29 countries from central Europe to central Asia financing projects, primarily in the private sector, that serve the transition to market economies and pluralistic democratic societies. For more information see: http://www.ebrd.com/pages/about/history.shtml (accessed on January 02, 2013).
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a special piece of legislation that should be implemented in national jurisdictions of the EU Member States. In spite of the fact that the Insolvency regulation is entirely and directly applicable to Member states, there still exist substantial differences in the national insolvency regimes. This is underlined by the adoption of the coordinated universality principle which results in a rather chaotic practice of interpreting the Centre of Main Interest (COMI).52 This confusion may play an important role in choosing the destination for FDI. In the past, EBRD demonstrated that a countrys likelihood to attract foreign direct investments and bank credit grows directly with the increase of effectiveness of that countrys insolvency legislation.53 One of the initial aims of the Insolvency regulation was to improve the efficiency and effectiveness in cross-border insolvencies and it is generally accepted that the contribution of this regulation was enormous. However according to Viviane Reding, the European Commissioner for Justice, Fundamental Rights and Citizenship, ten years after its entry into force, it is expected that the regulation will need a facelift.54 Of course, the quality of the Insolvency regulation does not only influence decisions of investors in the process of FDI. The stability of internal market and progress in overall European business and economic integration are the main concerns of relevant European bodies. Therefore, the European Parliament already published a report with recommendations to the Commission on insolvency proceedings in the context of EU company law55 and, according to the explanatory statement the Legal Affairs Committee suggested a four-fold structure of future legislative initiatives. These include inter alia improvement of the cooperation of liquidators and cooperation in general on an administrative level as well as creation of an EU Registry for insolvency
52

The interpretation of COMI varies from considering the facts of the nationality of directors nationality to the source code of computer programs. Bob Wessels, The Changing Landscape of Cross-border Insolvency Law in Europe, (12) JURIDICA INTERNATIONAL 116, 119 (2007). 53 European Bank for Reconstruction and Development, Core Principles for an Insolvency Law Regime (Last updated 21 May 2010), available at: http://www.ebrd.com/pages/sector/legal/insolvency/core_principles.shtml (accessed on February 15, 2012). 54 Bob Wessels, Revision of the EU Insolvency Regulation: What type of facelift?, in PROCEEDINGS FROM THE INTERNATIONAL CONFERENCE THE FUTURE OF THE EUROPEAN INSOLVENCY REGULATION, Amsterdam, the Netherlands, 28 April 2011, 92 (2011), available at: http://www.eir-reform.eu/uploads/papers/PAPER%205-1.pdf (accessed on December 22, 2012). 55 Report of the European Parliament with recommendations to the Commission on insolvency proceedings in the context of EU company law (2011/2006 INI) from 17th October 2011.

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3.13.

cases. The principle aim of future harmonisation should be the more equitable treatment of creditors within the internal market and diminishing legal uncertainty among liquidators. Nevertheless, the most discussed issue concerning the Insolvency Regulation has proved to be the legal institute of the COMI. This is not due to its mere existence, but rather to the potential of the change of jurisdiction which may serve as an abuse of law. COMI was introduced into the Regulation as a determinant for the jurisdiction based on the presumption that the execution of the insolvency proceedings should be carried out in a place to which creditors are accustomed to and where the debtors transactions with the creditors took place. Similarly to the investors behaviour, the intensity of forum shopping surfaced soon after that.56 In reality the insolvency proceedings under the Regulation proved to be chaotic57 which is to the detriment of EU investment attractiveness. When looking at the legal basis for foreign direct investment activities under EU law, interaction between essential freedoms of an internal market comes into question. Since investment is a cross-border activity which triggers capital flow and additionally links investors not only to their home countries, but also to the host states, the free movement of persons and capital may shield them. The case law58 regarding the difference between the two closely interactional freedoms explicitly sets forth that the decisive factor for granting protection under the freedom of establishment necessarily requires a definite influence or control of the companys decisions and its activities, while allowing the investor to participate in management of the company involves the free movement of capital.59
Wolf-Georg Ringe, Forum Shopping under the EU Insolvency Regulation, 33 OXFORD LEGAL STUDIES RESEARCH PAPER 3 (2008), available at SSRN: http://ssrn.com/ abstract=1209822 (accessed on January 2, 2013). 57 Federico Mucciarelli, Optimal Allocation of Law-Making Power over Bankruptcy Law in Federal and Quasi-Federal Legal Systems, Is There a Case for Harmonizing or Unifying Bankruptcy Law in the E.U.?, 11-28 NYU LAW AND ECONOMICS RESEARCH PAPER 26 (2011), available at: http://ssrn.com/abstract=1921374 (accessed on January 2, 2013). 58 ECJ Judgment of 9 March 1999, C-212/97, Centros Ltd v. Erhvervsog Selskabsstyrelsen [1999] ECR I-1459; ECJ Judgment of 16 December 2008, C-210/06, ECJ Judgment of 16 December 2008, Cartesio Oktat s Szolgltat bt [2008]; ECJ Judgment of 30 September 2003, C-167/01, Kamer van Koophandel en Fabrieken voor Amsterdam and Inspire Art Ltd. [2003] ECR I-10155; ECJ Judgment of 26 March 2009,C-326/07, Commission of the European Communities v. Italian Republic [2009] ECR I-2291, Council Directive 88/361/EEC (of 24 June 1988) for the implementation of Article 67 of the Treaty (88/361/EEC) . 59 Wolf-Georg Ringe, Domestic Company Law and the Free Movement of Capital: Nothing Escapes the European Court? 42 LRPS 7 (2008).
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Connecting the Dots: Attracting Foreign Direct Investment

3.14.

3.15.

Under Intra-EU foreign direct investment the two freedoms interact to an appreciable extent.60 As for the exercise of the fundamental freedoms mainly relevant to the investment activities the freedoms of establishment and free movement of capital the differential test to distinguish them was adopted in Cadburys Schweppes61 where permanent presence of the company in the host state as well as pursuit of a genuine economic activity in the host state must be both fulfilled for Art.56 to apply. The Stauffer case62 further confirmed the distinguishing factors for determination between freedom of establishment and movement of capital. Differentiation between these two freedoms may bear significant tax treatment impacts.63 Interestingly, it is the spreading legal framework of the European freedoms that underpins the controversy of the intentional shift of COMI into a favourable jurisdiction. Actually, the freedom of establishment as such protects potential shifts of COMI. Although companies cannot just choose the law system which suits them best irrespective of their seat location, the possibility to move their real or actual head offices from one EU Member State to another may become substantially troublesome if it is not attended by reincorporation and a change in the applicable company law.64

IV. Comparative Perspective Legal Systems of the United Kingdom and Slovakia
3.16. Despite the notable reforms of the Slovak legal environment towards the internationally acceptable level that were introduced in recent years, there is still room for improvement in some areas crucial to the business environment and foreign investments. This part of the article aims to compare certain characteristics of insolvency proceedings related to the transparency, effectiveness, familiarity to stakeholders,
ECJ Judgment of 26 March 2009, C-326/07, Commission of the European Communities v. Italian Republic [2009] ECR I-2291, para. 36. 61 ECJ Judgment of 12 September 2006, C-196/04, Cadbury Schweppes plc and Cadbury Schweppes Overseas Ltd v. Commissioners of Inland Revenue [2006] ECR-I-7795, para. 54. 62 in order for the provisions relating to freedom of establishment to apply, it is generally necessary to have secured a permanent presence in the host Member State and, where immovable property is purchased and held, that property should be actively managed. ECJ Judgment of (14 September 2006),C-386/04, Centro di Musicologia Walter Stauffer [2006] ECR I-8203, para. 19. 63 Art.65 of the Treaty on the Functioning of the European Union. 64 Horst Eidenmller, Abuse of Law in the Context of European Insolvency Law 11 (2009), available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1353932 (accessed on March 15, 2012).
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pre-planning, level of court involvement, and employee and creditor protection in the Slovak jurisdiction with the jurisdiction of the United Kingdom of Great Britain and Northern Ireland. Within the EU scope of national insolvency systems, Slovakia represents a developing insolvency regime, while the UK business law is generally considered to be one of the most attractive business jurisdictions in the world.65 It is apparent that the differences between the Slovak and UK jurisdictions are considerable, including, but not limited to, the overall business environment, practices of entrepreneurs, or the legal systems (e.g. common law in the United Kingdom versus civil law in Slovakia). Nevertheless, Slovak lawmakers intend to reconstruct the Slovak law so that its quality reaches the level of a legal system of a modern, democratic and developed country. In 2006 Slovakia adopted the new Bankruptcy and Restructuring Act (the Bankruptcy Act),66 which introduced a flexible and effective insolvency law system, a more business-friendly solution, and as such it lowered the investment risk. However, it is still common practice in Slovakia that a company is declared insolvent at the stage when it has no assets and money. It would be very appropriate to grant creditors even more protection at an earlier point, which may also increase the probability of the firms further existence and increase the directors obligations. Slovak lawmakers also realised the shortcomings of this insolvency law and thus the last more substantial amendment to the Bankruptcy Act, effective as of 1st of January 2012, also contains several legal measures for earlier launching of the insolvency proceedings. Looking at the responsibility for the early launching of insolvency proceedings, it can be noted that Slovak law recognises the responsibility (both criminal and civil) of the statutory bodies to commence insolvency proceedings but these provisions are not very effective. In Slovakia the failure of managers and corporate directors constitutes criminal liability but in practice the directors are rarely held liable. The UK Insolvency Act contains provisions on creditor protection which cannot be found in Slovak insolvency law, including lack of trust recognition and detailed provisions on directors liability in the case they breach their statutory duties (for example, fraudulent or wrongful
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In the last UK Attractiveness Survey 2012 from Ernst and Young, the UK retained its long-standing position at the top of European foreign direct investment rankings, despite 7% decrease of inward investment. Germany occupied the second place with a positive outlook of further growth. Ernst and Young. UK Attractiveness Survey 2012 (2012), available at: http://www.ey.com/UK/en/Issues/Business-environment/2012-UK-attractiveness-survey (accessed November 17, 2012). 66 Slovak Act No. 7/2005 Coll.

Connecting the Dots: Attracting Foreign Direct Investment

3.18.

trading.67) Slovak law as a civil law jurisdiction does not recognise the institute of trust. The main idea of trust as a common law concept is based on the principle that assets can be legally held on trust by a subject that is different from the economic owner of these assets. The result is that the trustee holds the assets for one or more beneficiaries who do not bear the risk of insolvency on the part of the trustee. This separation of legal ownership from economic ownership creates a situation unrecognised by the Slovak or other civil law systems.68 The possibility to separate assets from the personal estate of the trustee, particularly in cases of the trustees insolvency has a positive influence on commercial relationships and business confidence because the trust assets are not available for the trustees general body of creditors. On first sight, it is obvious that obtaining a high level of protection for the investor against the loss of their investment is not automatic, nor as effective in Slovakia as it is in the UK. To have at least some guarantee of not losing your entire investment, one has to be at least in the position of a secured investor. Every commercial investor is interested in making a profit from their investment but in many cases the first fundamental concern is to obtain protection against loss of the investment and therefore a legal framework for secured transactions is a key requirement in creating an investor-friendly climate.69 The programme of secured transactions reform in Slovakia, effective since 2003, has introduced an advanced framework for secured credit in Europe and has several benefits.70 These include quick, simple, and flexible legal regulation, which can also cover fluctuating pools of assets, future debt security, registration in a publicly available register, etc71
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Where a company is in liquidation, a liquidator can apply to the court to have a person who is or has been a director declared personally liable to make such contribution to the companys assets as the court thinks proper. (Insolvency Act 1986, Section 214). A defence is, however, available if the respondent director shows that, having reached the state of knowledge referred to, he took every step with a view to minimising potential loss to the companys creditors that ought to have been taken as stated in Section 214 (4) (b). 68 See Reinout Wibier, Can a Modern Legal System Do without the Trust?, 25 TILBURG LAW SCHOOL RESEARCH PAPER (2010), available at: http://ssrn.com/abstract=1677810 (accessed on January 2, 2013). 69 John Simpson and Jan-Hendrik Rover, Model Law on Secured Transactions, EBRD 1 (1994). available at: http://www.ebrd.com/downloads/legal/secured/modellaw.pdf (accessed on January 20, 2013). 70 See EBRD, Commercial Laws of the Slovak Republic An Assessment by the EBRD (2009), available at: http://www.ebrd.com/downloads/sector/legal/slovak.pdf (accessed on June 15, 2012). 71 See EBRD, Analysis of the current secured transactions legal regime in Slovakia, available at: http://www.ebrd.com/downloads/legal/facts/slksur.pdf (accessed on June 15, 2012).

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In addition, the UK insolvency regime is more accommodating to stakeholders than any other national insolvency regime and that is why, for example the US stakeholders may prefer to manage and restructure the European interests through the UK, where the respective judiciaries have co-operated in the restructurings.72 Unlike the Slovak Republic, the UK also allows more pre-planning than the Slovak jurisdiction, which does not allow for pre-pack administration. However, this may not be viewed as a benefit for unsecured creditors since their legitimate interests can be seriously harmed in the process of a pre-packed administration. In a pre-pack administration the streamlined version of the administration procedure is realised. It involves the imposition of a moratorium on the enforcement of claims and repossession of security, and the appointment of an administrator who takes over running of the company.73 Unlike in the Slovak Republic, an administrator in the UK can be appointed not only by the court but also on the out-of-court basis by either a holder of a qualifying floating charge or by the company itself. Once appointed, considerable powers are delegated on the administrator in order to allow flexibility in achieving the procedures purposes. At the same time, the statutory framework is designed to ensure that the office-holder remains accountable to those with a tangible interest and that decision making is transparent.74 With regard to protection of the unsecured creditors, the pre-pack administration process is often criticized, mostly because of unsecured creditors inability to provide effective check of the administrators actions. Nevertheless, according to some practitioners the pre-packs might be effective, as under certain circumstances they improve returns to creditors or help to preserve the business of a failed company, hence saving jobs.75

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72 Louise Webb and Matthew Butter, Insolvency proceeding: Shopping for the best forum, (2009), available at: http://www.practicallaw.com/8-500-7219 (accessed on January 14, 2013). 73 John Armour, The rinse of the pre-pack: Corporate restructuring in the UK and proposals for reform, Sydney, Ross Parsons Centre, 2012. 74 Ibid. 75 The Insolvency Service, How to complain about misuses of the pre-pack administration process, http://www.bis.gov.uk/insolvency/insolvency-profession/professional%20conduct/ how-complain-against-an-ip/pre-packs-complaints-process (accessed on January 14, 2013).

Connecting the Dots: Attracting Foreign Direct Investment

V. Concluding Remarks
3.20. Since the magnitude of changes in the law is identified as highly relevant for investment decisions,76 it is in Slovakias as well as many other EU countries best interest to enhance their legal systems especially considering the lack of substantial FDI flow recovery in the years 2009-2011.77 What is more, the benefits stemming from these changes will not only contribute to the easier flow of foreign capital but they will advantage national businesses as well. Naturally, if insolvency proceedings are even better harmonized on a supranational level, as planned with the amendment of the Regulation by the European Parliament,78,79 the integral block of EU countries will increase its competitiveness in attracting FDI. Despite significant contribution to the convergence of national insolvency proceedings, imperfections of national laws and questionable interpretation of the European Insolvency Regulation still leaves room for the further refinement of existing instruments. Current efforts for deeper harmonization of national insolvency regimes through European Union law may accordingly contribute to the investors expectations of a swift and effective execution of the insolvency regime. Learning from the United Kingdoms legal experience, in order to accelerate insolvency proceedings so that that insolvency law fully assists the desired flow of investments, better protection of creditors at an earlier stage, less corruption, minimisation of speculations and fraudulent acting would enhance the effectiveness and overall attractiveness of developing jurisdictions in the eyes of foreign investors. |||

3.21.

3.22.

Matthias Busse and Carsten Hefeker, Political Risk, Institutions and Foreign Direct Investment, 315 HWWA DISCUSSION PAPER 25 (2005), available at: www.wiwi.unisiegen.de/ewp/research/documents/hefeker/315.pdf (accessed on January 02, 2013). 77 In 2009 Slovak inward FDI went sharply down from almost 5.000 million dollars to minus 200. UNCTAD. 78 Report of the European Parliament with recommendations to the Commission on insolvency proceedings in the context of EU company law (2011/2006 INI) from 17th October 2011. 79 For further notes on the reform Bob Wessels, The Changing Landscape of Crossborder Insolvency Law in Europe, XII JURIDICA INTERNATIONAL 119 (2007).
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Summaries DEU [Die Steinchen fgen sich zum Mosaik: Harmonisierung des europischen Insolvenzrechts als Methode zur Anwerbung auslndischer Direktinvestitionen] Die Teilnahme am Insolvenzverfahren lsst sich gewissermaen als eine Art Investitionsauftritt auf einem auslndischen Markt verstehen, ebenso wie als eine Form der Abwicklung einer Handelsgesellschaft; von daher widmet sich der vorliegende Beitrag der Wechselbeziehung zwischen der Qualitt des Insolvenzrechts und den auslndischen Direktinvestitionen in der Europischen Union. Auslndische Direktinvestitionen mgen zwar ein Schlsselaspekt des EUBinnenmarkts sein in den europischen Vertragswerken definiert sind sie aber nicht. Analog dazu gilt, dass ungeachtet der Harmonisierung der Insolvenzvorschriften auf der Ebene der einzelnen Staaten noch immer grundlegende Unterschiede bestehen. Neben einer Analyse des EU-Rechts nimmt der vorliegende Beitrag eine komparative Analyse dieser Unstimmigkeiten vor, und zwar in Form der Konfrontation zweier deutlich verschiedener Rechtssysteme unter den Mitgliedstaaten der EU die Rechtsordnung des Vereinigten Knigreichs einerseits, welche dem Unternehmertum traditionell wohlgesonnen ist, und die eine dynamische Entwicklung durchlaufende Rechtsordnung der Slowakei andererseits. Das hier verfolgte Ziel, in Form des Ringens um eine Vervollkommnung der nationalen Rechtsvorschriften zur Insolvenz, htte durchaus mehr Aufmerksamkeit verdient, denn der von der fortdauernden Finanzkrise verursachte Rckgang der volkswirtschaftlichen Leistungsfhigkeit hat zu einer steigenden Zahl von Insolvenzverfahren gefhrt und steht urschlich hinter dem Austrocknen der Investitionsflsse. [Spojovn bod: harmonizace evropskho insolvennho prva coby zpsob, jak pilkat pm zahranin investice] ast v insolvennm zen lze povaovat za urit zpsob vstupu investice na zahranin trh, jako i za formu zruen obchodn spolenosti; z tohoto dvodu se tento pspvek vnuje vztahu mezi kvalitou insolvennho prva a pmmi zahraninmi investicemi v Evropsk unii. Pestoe jsou pm zahranin investice klovm aspektem vnitnho trhu EU, nejsou v evropskch smlouvch definovny. Podobn plat, e pestoe jsou pedpisy o insolvenci harmonizovny, existuj na rovni jednotlivch stt stle podstatn rozdly. Vedle rozboru prva Evropsk unie jsou tyto nesrovnalosti analyzovny komparativnm zpsobem v podob konfrontace dvou znan odlinch prvnch d lenskch stt EU prvnho du Spojenho krlovstv,

CZE

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kter je tradin vstcn vi podnikatelsk sfe, a dynamicky se rozvjejcho prvnho du Slovenska. Cl v podob snahy o zdokonalen nrodnch prvnch pedpis o insolvenci by si zaslouil vce pozornosti, protoe pokles vkonnosti ekonomiky, zpsoben trvajc finann kriz, zvil poet insolvennch zen a je pinou utlumen tok investic. ||| POL [czenie punktw: harmonizacja europejskiego prawa upadociowego jako sposb na przycignicie bezporednich inwestycji zagranicznych] Niniejszy artyku zajmuje si zalenoci midzy jakoci prawa upadociowego a bezporednimi inwestycjami zagranicznymi w Unii Europejskiej. Rozbienoci midzy prawem europejskim i krajowymi porzdkami prawnymi zostay tu przeanalizowane metod porwnawcz, gdzie przeciwstawiono sobie dwa znaczco rne porzdki prawne krajw czonkowskich UE porzdek prawny Wielkiej Brytanii, tradycyjnie przychylny wobec sektora biznesowego, i dynamicznie rozwijajcy si porzdek prawny Sowacji. [Deux lments lis: lharmonisation du droit de l'insolvabilit et lencouragement des investissements trangers directs dans lUnion europenne] La prsente contribution examine le lien entre la qualit du droit de linsolvabilit et les investissements trangers directs dans lUnion europenne. Les disparits entre le droit europen et les droits nationaux y sont analyses de manire comparative dans une confrontation entre deux droits dtats membres de l'UE divergeant considrablement le droit anglais, traditionnellement favorable aux entreprises et le droit slovaque qui se dveloppe activement. [ : () ] () . - ,

FRA

RUS

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, . ESP [Conexin de puntos: armonizacin de la ley de insolvencia a nivel europeo como una forma de atraer inversin extranjera directa] Este artculo analiza la relacin entre la calidad de la ley de insolvencia y la inversin extranjera directa en la Unin Europea. Las discrepancias entre la legislacin europea y los sistemas jurdicos nacionales se analizan mediante el mtodo comparativo a travs de la confrontacin de dos sistemas jurdicos muy diferentes de los Estados miembros de la UE el sistema jurdico del Reino Unido, tradicionalmente respetuoso con el entorno empresarial, y el sistema jurdico de desarrollo dinmico de Eslovaquia. |||

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