The Concept of »Company« in the Conflict of Laws – Does it Encompass the »entrepreneur individuel à responsabilité limitée«? Der Begriff der Gesellschaft im Internationalen Privatrecht
Jahrgang 75 (2011) / Heft 3, S. 541-580 (40)
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On 1 January 2011 the French legislator introduced a new legal entity: the »entrepreneur individuel à responsabilité limitée« (EIRL). This reform poses new challenges for the conflict of laws: How is the EIRL to be characterised? Can it be characterised as a company? This problem leads to the general question of how to define the concept »company« in the conflict of laws. The article develops a new definition: in international private law, »company« covers all distinct entities which have legal relevance for more than just the parties immediately involved and which are not covered by special conflict rules such as international family law, succession law or property law. Contrary to the prevailing opinion, organisational structure does not constitute a relevant criterion. »Distinct entities« are all entities with separate legal personality, all separate estates and all associations of individuals which pursue a common objective. Therefore, entrepreneurs with limited liability such as the French EIRL are to be characterised as companies. The same goes for trusts having separate estates. The definition developed in this article applies not only to national conflict rules but also to the concept of »company« in the European provisions concerning the freedom of establishment (Art. 54 TFEU and Art. 34 EEA, which, however, exclude non-profit-making companies) and to conflict rules in international conventions such as the »Treaty of Friendship, Commerce and Navigation between the USA and Germany".