In this article, the authors fill a gap in the legal literature surrounding post-Enron corporate governance reform by focusing on the need for enhanced shareholder voice in the auditing process. The authors expand on Anand's analysis in ‘Shareholder Isolation and the Regulation of Auditors’ with transatlantic perspectives on reform of the audit process. Specifically, they examine the role of the auditor, shareholder powerlessness and the post-Enron reform process in Canada and the UK, contrasting the reform movement in these countries with that in the US. Finally, the authors examine the developing auditor governance regime in the EU. In their analysis, the authors reach several important conclusions: the auditor-shareholder relationship and the duties of auditors to shareholders need to be clearly defined; shareholder isolation from the audit process severely endangers investor confidence; the independence of audit committees and auditors is not enough to protect shareholders; and, most importantly, shareholder voice should be recognised as an essential tool for promoting not only auditor independence, but also, ultimately, investor confidence. In short, the authors conclude that shareholder voice must be a part of the post-Enron reform of the audit process.

The European Commission's May 2003 Action Plan ‘Modernising Company Law and Enhancing Corporate Governance in the European Union – A Plan to Move Forward’ includes a proposal for new legislation on wrongful trading with a view to strengthening the personal accountability of directors in the case of a company's failure. The proposal builds on expert opinions that the existing law on wrongful trading in Great Britain is better capable of activating an early managerial response to a financial crisis than the German Insolvenzverschleppungshaftung (liability for delaying insolvency). This article challenges the alleged superiority of wrongful trading over Insolvenzverschleppungshaftung. It provides a detailed analysis of the case law under section 214 of the British Insolvency Act, which does not support the fundamental assumption underpinning the European endeavour, namely, that wrongful trading routinely imposes duties on the directors ahead of the onset of insolvency. Furthermore, the protection afforded to creditors under British law is less extensive than under German law as regards the amount of compensation for the creditors and, correspondingly, the financial risk incurred by the directors. Finally, the article looks at the special treatment of new creditors (Neugläubiger) under German law, which has the advantage of giving creditors a strong incentive to pursue delinquent directors.

The position of non-State actors – including individuals and non-governmental organisations, as well as private corporations and their respective business associations – in WTO law is one of the most contentious topics currently discussed in the field of international economic law. The purpose of this article is not only to show that this discussion raises fundamental questions as to the aims pursued by the WTO, but also to explore the possible consequences of the changing character of international economic law itself, which have so far been little noted in the legal literature. The article starts with an evaluation of the possibilities for individual rights granted to private actors by WTO law. In this connection, the authors come to the conclusion that, judged by its goals and its normative construction, the WTO legal order is not only suitable for according rights directly to individuals, but is actually designed precisely for this purpose. The authors continue with an analysis of the current legal and factual opportunities for non-State actors to participate in the decision-making processes and dispute settlement system of the WTO. In this regard, it is submitted that a number of non-State entities already play an important, albeit mostly informal role in the WTO at present. Furthermore, this participation is likely to increase in the future, due to the currently visible changes in the normative structure of the international economic system, which are leading to the evolution of what can most accurately be characterised as the development of a ‘transnational economic law’. Following an evaluation of these structural changes and their possible impact on the future role played by non-State actors in the international economic system, the article concludes that the WTO and other relevant international organisations obviously need to adapt to the changing normative structure of international economic law, in order to be able to continue performing the regulatory tasks assigned to them.

This article addresses the role and limits of regulation in telecommunications. The author puts forward seven hypotheses. First, the traditional arguments for regulation in the form of public enterprises (‘natural monopolies’) have become obsolete. Second, there is a continuing need for the special regulation of the incumbent. Third, the ultimate goal of this regulation should be to render itself superfluous. Fourth, it is essential that the regulatory agency be independent from political influence. Fifth, it is less important whether the regulatory power resides with a specialised agency or with a general competition agency. Sixth, procedural rules are necessary in order to support substantive regulation, for example, in connection with the need for ex ante regulation rather than ex post supervision, the asymmetry of the regulation focusing on the incumbent, the means to positively design market conditions, the need for speedy execution of the regulatory agency's decisions and the development of a principled rate regulation. Seventh, privatisation and the concurrent withdrawal of the state from the provision of telecommunications services in order to allow market forces to compete is the preferable solution.

The purpose of this article is to introduce and briefly analyse Croatian competition law in the light of EC competition law standards. The analysis will be kept at a general level, essentially offering an overview of Croatia's legislative framework in the field of competition law, including the Competition Law that was in force from 1995 until October 2003 and the new Competition Law that was enacted on 21 July 2003 and entered into force on 1 October 2003. An independent Croatian competition authority, the Agency for the Protection of Market Competition, was created in 1995 and began its work in 1997. The Agency is directly responsible to the Croatian Parliament. In addition, this article analyses the competition provisions of the EC-Croatia Stabilisation and Association Agreement, which was signed in October 2001 and is awaiting ratification by the EU Member States. An Interim Agreement including a number of competition rules has been in force since March 2002. In February 2003, Croatia applied for EU membership. The Commission is currently in the process of drafting its opinion on the application.

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.