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At present, there are two contrasting conflict of law

EN 1 At present there are two contrasting conflict of law theories as regards the recognition of foreign legal persons the incorporation theory and the real seat theory

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	At present, there are two cont
rasting conflict of law theories
 as regards the recognition of 
foreign
legal persons: the 'incorporation' 
theory and the 'real seat' theory. The 'real seat' theory probably 
dates back to the middle of the ni
Both those categories of company are considered to
 have failed formation requirements. This rigid 
principle is often mitigated though, 
with the help of the private in
ternational law escape device of 
 or remission: real seat coun
tries allow companies to have 
their management and control 
office abroad, provided that the conf
lict of law rules of the country wh
ere the real seat is situated 
adhere to the 'incorporation' theory.  
The 'real seat' theory has always been predomin
antly influenced by control policies. However, 
protagonists of decisive factors that have become
Problems arise if a legal system provides for diffe
rent legal regimes for unw
inding contracts. If 
some of these regimes are contractual in nature
 whereas others are non-
contractual, as often 
happens to be the case, it is always difficult to
 integrate them doctrinally with one another. 
Divergent results are a natural consequence. Risk 
may be assigned differently and the object of the 
countract’s value may be assessed on different term
s: subjectively, in accordance with the contract, 
where the remedy is contractual ‘in nature’, 
or objectively, where a non-contractual claim for 
unjustified enrichment is concerne
d. Typically, non-contractual remedi
es apply only if the contract 
is void and the contract’s nullity
 may have further consequences
 for other remedies, such as 
(contractual) claims for damages. In this respect,
It is fairly obvious, that the fact
ors invalidating a contract must be
 decisive also for its unwinding. 
The just unwinding of a contract depends on contract
 law policy. In principle, each party has to bear 
all risks pertaining to the benefit received, becaus
question. Of course, there are exceptions to this pr
received, therefore, from the inheritance. And 
often there is even no 
such understanding, but only 
the hope of being favourably consider
ed in the recipient’s last will. 
to rephrase their case in 
more moderate language, as they would 
before an arbitrator. At least the 
arguments tend to become more reasonable.  
Most conciliations are performed with commissions
 composed of several members, which is the 
normal arrangement under bilateral or multilateral tr
eaties, but occasionally states may prefer a 
Although, in general, the practice 
of conciliation commissions reflec
ts the same basic functions, 
namely to examine the dispute and make non-bi
The disadvantages are also obvious. Conciliation a
nd mediation procedures are difficult to start 
without the consent of the other side and requi
re the goodwill of the opponent. The contribution to 
the development of the law is also much more
 reduced than in the 
case of arbitration or 
adjudication, but this is a more 
abstract systemic consideration. 
What matters for the parties is 
Following upon this court’s decision
 there were several further appl
ications made in this case. 
Some of these, if successful, would have 
meant that a reference would not have been 
necessary. In the events which ultimately transp
ired, such a situation has not come about. In 
addition, further submissions were
 made on the precise wording of
 the questions as well as on 
a question which the defendant sought to have 
included. After a protracted period of time, the 
outstanding issues were ultimately finalised in late 2000. 
As appears from questions Nos. 1, 2 and 3 the plaintiff seeks to invoke a number of 
Community measures, which amended the Equal Tr
eatment Directive. He makes the case that 
pursuant to the provisions of one or more of th
ese measures he is entitled, as a matter of 
European law, to the production of the conteste
d documents without redaction. This claim is 
independent from national law and if successf
ul would establish a legal basis for the 
plaintiffs’ access to the said documents. In the 
absence of the ability to directly apply the 
provisions of the Directives, national laws shoul
still claimed that as a matter of European law the role of the national court in the phrasing of 
questions for a reference should be different 
depending on the system of law operating within 
the national jurisdiction from 
which the reference is made. 
Therefore the issues to be put before the C
ourt of Justice should, as
 they would be in 
proceedings before a national court, be
equality cases. Such an onus as provided for ther
ein extends to procedural matters, which it is 
suggested should be construed in 
favour of an applicant. As with
 the general burden of proof, 
a higher standard should apply in relation to the 
protection of the applicant's rights in relation 
to the production of documents. However, the true
 position is unclear as
 a matter of European 
law, and therefore a reference is required in order for this Court to ultimately come to a