In the Seventh Circuit case Baxter International, Inc. v. Abbott Laboratories, an arbitration tribunal's award was challenged on the grounds that it manifestly violated the Sherman Act. This argument would normally be expected to be dealt with in a public policy test, which serves as the standard of reviewability in most laws governing award enforcement proceedings. However, instead of examining whether or not the award was in fact violative of antitrust law and therefore incompatible with US public policy, the Circuit Court of Appeals deferred to the tribunal as a simple matter of prerogative. Taking it literally, this reasoning would seem surprising if not remote. The Court not only brushed aside serious concerns of antitrust law but also seemed to offer a re-interpretation of the Supreme Court's case law on arbitration. Nevertheless, despite the provokingly worded majority opinion, which other circuits will feel invited to consider in similar cases, the rather peculiar factual background of the Baxter case appears to be the true basis for the Court's ruling. Analysing the details of the litigants' relationship reveals that an issue of fundamental fairness was underlying the dispute, which serves well to reconcile Baxter with the Supreme Court's authority in Mitsubishi.

This article looks at the ongoing dispute between the American brewer Anheuser-Busch and the Czech beer producer Budejovický Budvar over the right to use the name Budweiser or Bud on their products. Currently, both of the brewers produce a beer labelled ‘Budweiser’. The fight concerns one of the most controversial issues of intellectual property protection: the co-existence of trademarks and geographical indications. The case under review, Case C-216/01 Budejovický Budvar v. Rudolf Ammersin GmbH, Judgment of 18 November 2003, is only one episode in this ongoing dispute. This article explains why the decision of the Court of Justice does not answer the question whether co-existence of these particular classes of names or more generally of geographical indications and trademarks is possible. An overview of other international disputes in relation to the same issue is also provided in this article.

On 30 September 2003, the European Court of Justice (hereinafter: the ECJ), in full court, handed down a judgment in the Inspire Art case in which it found certain provisions of the Dutch Law on Formally Foreign Companies of 17 December 1997 (Wet op de Formeel Buitenlandse Vennootschappen. Hereinafter: the WFBV) to be contrary to Article 2 of the Eleventh Company Law Directive and others to form a restriction to the exercise of the right of secondary establishment incapable of justification under Article 46 of the EC Treaty or the case law on overriding reasons relating to the public interest, also referred to as the ‘:rule of reason’ case law. Ten days later, a leading Dutch legal periodical stated that this judgment would lead to the Netherlands being inundated by private limited liability companies incorporated in England under English company law. Does the ruling in Inspire Art mean that the dikes erected in the Netherlands to prevent an influx of so-called formally foreign or pseudo-foreign companies have collapsed? In this paper I will deal with the following issues. Firstly in order to answer the question whether the judgment in Inspire Art can indeed be regarded as a break-through with regard to the freedom of establishment of companies, I will place this ruling against the background of two other judgments in this field, namely the judgments in the Centros and Überseering cases. I will then discuss the importance of the Inspire Art ruling for both the exercise of the right of primary and that of secondary establishment by companies. This will be followed by a discussion of the so-called abuse or improper use of the right of establishment. I will then briefly touch on the issues of the concept of legal capital and forum shopping before drawing some conclusions.

This paper surveys the main effects of recent legislative changes to the corporate insolvency law of the United Kingdom, from the standpoint of their potential impact upon corporate rescue. The reforms, enacted in 2000 and 2002 and brought into force during 2003, have recast the law relating to company voluntary arrangements, administrations, and administrative receiverships. After considering the various deficiencies in the pre-existing law, which rendered each of these procedures in varying ways unsatisfactory for the purpose of addressing the problems of financially troubled companies, the paper examines the process by which the declared intentions of the government when introducing its reforming legislation were significantly altered during the course of enactment into law. While the outcome of this dialectical drama has been the bringing about of some worthwhile improvements in the refashioned administration procedure, this has been accompanied by a significant dilution of the government's previously stated intentions with respect to the attenuation of the rights and powers of creditors holding security in the form of a floating charge. Consequently, the paper concludes that administrative receivership will retain a far greater practical significance than had been previously envisaged, while the opportunities made available to floating charge holders under the revised administration procedure provide a strong incentive for institutional lenders to continue to make use of this species of security. The author concludes that UK insolvency law has been unable to embrace the ‘American way’ of corporate rescue, with debtor-in-possession as its core principle, but has instead opted for a ‘rescue’ model in which creditor interests continue to assert a dominant influence.

This note sets out some preliminary ideas on the potential impact of the Enterprise Act 2002 on the bargaining strategy of secured lenders. Such strategy will be designed to limit the adverse impact of the Act on the erosion of secured lenders' enforcement rights. Sophisticated parties will bargain in the shadow of the law and, if accorded the necessary freedom, will bargain around it.

This article analyses the Council Regulation on the Statute for a European Company, and its impact on board structures and corporate governance within the European Union. It describes the Statute's structure, and highlights the Statute's many unanswered questions regarding corporate structure and governance. The article argues that the Statute will have its greatest positive effect on cross-border combinations, and will have little or no effect on normal takeovers, joint ventures, and subsidiaries. It advocates the immediate need for Member States with a two-tier structure to allow for a one-tier structure, and vice versa. Finally, the article asserts that the Statute will become an engine for regulatory competition among the Member States as they model their respective corporate forms to attract firms.

A recent case in the English High Court, Re Continental Assurance Company of London plc (Singer v. Beckett), constitutes the first judicial pronouncement on wrongful trading (s. 214 of the Insolvency Act) which concerns a major company. The case should render us cautious about the alleged superiority of wrongful trading over creditor protection regimes in other European jurisdictions, notably the German Insolvenzverschleppungshaftung, and the consequential idea of the European Commission to propose a new directive on wrongful trading.

Risk capital plays a vital role for growth and jobs in Europe. It is against this background that the European Commission launched its 1998 Risk Capital Action Plan in order to eliminate persistent regulatory barriers that may impede the creation of a truly single market. In the framework of the Action Plan's implementation, a strong need was felt for research advice. Thus a Risk Capital and the Financing of the European Innovative Firms (RICAFE) research network was formed by members of the London School of Economics and Political Science (Financial Markets Group), the Centre for Financial Studies in Frankfurt, HEC School of Management Paris and Turin University. The project co-leaders of RICAFE are Professor D.C. Webb and Dr Marco Da Rin. RICAFE aims to achieve research breakthroughs in the economics of risk capital financing of innovative companies and to offer informed, insightful research advice to the commission, forming the basis of a blueprint for the implementation of the Risk Capital Action Plan. In the intellectually stimulating atmosphere of the financial Markets Group at the London School of Economics, the First RICAFE Conference was held on 24-25 October 2003.