[Editors' Note: Due to its large size, the HTML version of this article – this version – is published in two consecutive parts. This is Part II/II. The PDF version is published in its entirety in one document and can be printed and downloaded]

C. Re-incorporations in the US and the EU compared

I. Re-incorporations in the US

"Re-incorporation" is not a legal term of art. It denotes the effect of a transaction which leads to a change of the statutory seat without a change of the real seat of a company. In the US, re-incorporations are an everyday transaction. They are the focus of the so-called ‘event studies'.[80] However, there is, at least in Europe, little interest in the way in which such re-incorporations are realized. Some authors believe that the possibility to reincorporate was a result of the incorporation theory.[81] This is not true. According to the incorporation theory, a company's corporate seat cannot be changed. In the debate between real seat and incorporation theory, the stability of the connecting factor has always been regarded as one of the main advantages of the incorporation theory. In fact, re-incorporations are carried out by founding a new (shell) company in the target state and merging the reincorporating company into the new one[82]. The costs for this transaction are not marginal, but they are also not prohibitively high[83]. Contrastingly, as will be shown in the next paragraph, re-incorporations within the EU are hardly possible.

II. Re-incorporations in the EU

Under conflicts rules in the EU Member States, a change of the statutory seat is neither feasible under the incorporation theory nor under the real seat theory[84]. Only Switzerland and Liechtenstein, which both follow the incorporation theory, have special rules on re-incorporations in the sense of a change of the statutory seat only. But interestingly, according to Art. 162 (1) of the Swiss Law on Private International Law, a foreign...