If Belgium changes from the real seat theory to the incorporation theory, courts will no longer be able to apply the Belgian rules governing these matters to foreign companies having their real seat in Belgium. That way, they can continue to be applied to foreign companies having their real seat or Centre of the Main Interests in Belgium. Adopting the incorporation theory in Belgium might increase flexibility and legal certainty for cross-border businesses.
But moving away from the real seat theory should not compromise the accountability of ill-intentioned promoters and directors of a foreign company conducting business in Belgium. Law makers should consider how insolvency rules can be optimised to prevent this from happening. Next step is making sure that these rules are properly enforced in practice. Marc Van de Looverbosch lawyer at Baker Mckenzie.
The views expressed by the author are personal and are not necessarily the views of Baker McKenzie. A very interesting analysis, emphasizing the increasing importance of insolvency law. In their view, states opting for market-oriented law for example Delaware will co-exist with states opting for politics-oriented law.
If one state offers market-oriented law, other states are relieved of pressure from companies seeking market-oriented law — these companies can incorporate in the state offering market-oriented law — and can focus on their local interests.
Hence, we should ask the question: can Belgium become the European Delaware, as envisaged by the adoption of the incorporation doctrine? This worry was one reason the Federalists had opposed adding a Bill of Rights to the Constitution. The Ninth Amendment was among the amendments added in for that reason. The federal government has expanded in regard to business regulation in the early s, New Deal programs s , military strength during World War II, anti-poverty Great Society programs s , environmental regulation and education s , the war on drugs s , health entitlements s , education s , and a mandate for individuals to buy health insurance in the s.
Email Address. The Fourteenth Amendment and Incorporation. The Bill of Rights originally applied only to the national government. Given the concerns about centralized power shared by Federalist and Anti-Federalists alike, this is no surprise. Federalist arguments for strong national power always presupposed strong power in states as well.
Tellingly, all the states who proposed any amendments at all suggested the principle of the Tenth Amendment: if the Constitution does not give the national government a certain power, that power is kept by the states and the people. The idea that a distant national government knew better than the people of each individual state what kinds of laws that state should have would have been puzzling to most people during the Founding era and for the first century of the republic.
The Supreme Court building of the United States. Free Exercise of Religion, Cantwell v. Connecticut No Established National Religion, Everson v. Board of Education Ban on Unreasonable Search and Seizure, Wolf v.
Colorado Read More. No Evidence from Illegal Searches, Mapp v. Ohio No Cruel and Unusual Punishment, Robinson v. California Read More. Right to Counsel in all Felony Cases, Gideon v. Wainwright No Self-Incrimination, Malloy v. Hogan Read More. Right to Confront Adverse Witnesses, Pointer v. More recently, the Court considered the incorporation question in the case of McDonald v Chicago , involving a challenge to Chicago's tough gun control legislation.
Just two years earlier, the Court had ruled in a case challenging a District of Columbia gun control regulation that the 2nd Amendment guaranteed an individual right to bear arms. In McDonald , by a 5 to 4 vote, the Court held that the 2nd Amendment right was thought by ratifiers of the 14the Amendment "among those fundamental rights necessary to our system of ordered liberty" and is therefore now a right fully enforceable against the states. Justice Thomas, concurring, argued that the better vehicle for incorporation, one truer to the original understanding of the 14th Amendment, was the Privileges and Immunities Clause.
Dissenters argued that the right to bear arms, "unlike other forms of substantive liberty, In , The Court concluded, in Timbs v Indian a, that the Excessive Fines provision of the 8th Amendment was incorporated through the 14th Amendment, and thus applicable to the states. The following year, in Ramos v Louisiana , the Court said the same thing about the "unanimous verdict" requirement of the 6th Amendment, previously found as a result of a couple of 5 to 4 split decisions, with one justice finding states not to be required to have unanimous verdicts, but reaching a different conclusion for the federal government to be applicable to the federal government, but not the states.
The phrase "privileges and immunities" appears more than two dozen times in the notorious Supreme Court case of DredScott v Sandford. The Court concluded that black persons were not entitled to the privileges and immunities of citizens, which the Court took broadly to include the rights to speak, bear arms, assemble, and travel freely.
John Bingham, primary author of the Fourteenth Amendment, said that he used the phrase "privileges and immunities" to specifically overturn the language of Scott v Sandford.
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