Research Projects

Catering pre-insolvency restructurings for the needs of SMEs: Belgium (1850-1910), FWO 2019-2023 (promoter: prof. dr. Dave De ruysscher)

Insolvency law and practice have not often been studied for its responsiveness towards differences in the corporate finance structure of firms. As a result, SMEs have not often been the focus of insolvency legislation. It remains to a large extent open for research as to what extent pre-insolvency proceedings, which are aimed at corporate rescue, should address the specific characteristics of SMEs. In this regard, the Belgian situation between 1850 and 1910 is most important. In 1851 and 1883, pre-insolvency proceedings were introduced that were aimed at continuity of business instead of liquidation. This proposal hypothesizes that this shift was due to a rise in numbers of SMEs, and to their features of financing (debt over equity, few financiers, closely held management). These properties made the existing insolvency proceedings (judicial and extrajudicial) unfit. It will be found out to what extent forensic practice, as well as commercial practice were addressing the specific problems of SMEs in financial distress. The proposed project will have a profound impact on debates regarding corporate insolvency, which often take generalizing stances. Differentiation according to the size of business ventures, and their respective qualities, is assumed to be as relevant today as it was in the past.

Litigation strategies and the law of commerce in later medieval Bruges, FWO 2019-2023, UGent and VUB (promoter: Prof. dr. Jan Dumolyn (UGent); Co-promoter: prof. dr. Dave De ruysscher)

Fifteenth-century Bruges is a case in point to study a medieval law of commerce. Already in the later thirteenth century, Bruges had become the main commercial hub between the Mediterranean and the North Sea and attracted more foreign merchants than any other European town. Both princely and city governments tried to offer foreign merchants market peace, physical protection and legal security through legislation and granted collective privileges to foreign ‘nations’ (including a degree of ‘consular justice’ to some degree autonomously organized among the merchants in their 'nation'). But the question remains which legal and institutional level guaranteed the lowest transansaction costs and thus best promoted commercial growth. Therefore we must: 1° study the law of commerce before on the one hand the urban courts of Bruges and on the other hand the central courts of Flanders and the Burgundian state; 2° study the policies of the urban and princely governments in creating a secure climate for commerce; 3. study the legal strategies deployed by the international merchants in Bruges and the institutions and mechanisms at their disposal to defend their interests. Our hypothesis is that litigants in fact ‘forum shopped’ at different levels of law in order to obtain the most favourable results, to avoid the possibility of appeal, or because rules of evidence were different.

Political and intellectual migration in Europe (1789-1871): Legal aspects from transnational perspectives (promoter: Prof. dr. Paul De Hert; co-Promoter: Prof. dr. Frederik Dhondt), FWO Pegasus Incoming2 Marie Sklodowska-Curie 2017-2019

My project aim is to renew the history of the legal aspects of political migrations by combining different methodological approaches from European and transnational perspectives. To do so, I will draw on four case studies that are desiderata of the scientific community: First, the Life and Thoughts of Jean-Etienne-Marie Portalis (1746-1807) and Joseph Marie Portalis (1778-1858); Second, the European Networks of the Monarchiens; Third, a comparative study of various European legislations upon migration in the long nineteenth century; and finally, the Life and Thoughts of Léopold August Warnkönig (1794–1866). This research will question how political writings and ideas coming from the émigrés at the time of their exile had an influence on laws and institutions during the area of the Restauration. For example, how big was the impact of the legal doctrines on reparation and amnesty developed by the émigrés on the famous law du milliard des émigrés voted in France in 1825? The goal in these different cases studies is to show how the ideas and experiences of migration could have been used by political institutions as well as in the law-making process.

Competing Corporations, Brokering Rules: Marine Insurance in France and Belgium (1815-1860), (promoter: prof. dr. Dave De ruysscher), FWO, 2016-2020

The project aims at assessing competing marine insurance corporations in regard of the crafting and formulation of standardized terms of contract. It focuses on Belgium and France in the nineteenth century until around 1860. The novelty of the project lies in its actor-orientated approach and in its empirical focus on competition as underpinning legal convergence. For the nineteenth century, legal history of commerce in the mentioned states is sketchy and still largely orientated towards government action and legal professionals. Companies are usually not considered for their contributions in the legal domain. However, marine insurance corporations, which were competing with each another and which drew up standard contracts for their clients, also jointly drew up forms containing standard terms that were applied by all companies within one city or port. This happened without the intervention of governments and regulatory agencies, and without the authority of associations of professionals imposing standards. The proposed research will test how and why actions of competing corporations could be sufficient for establishing convergence in standard terms.

Cataloguing Customs of Trade: Looking Behind the Labels (Amsterdam and Lyon, 1700-1730), (promoter: prof. dr. Dave De ruysscher), FWO, 2016-2020

The project aims at solving an old question: what were the informal rules of trade? Scholarship on the history of commercial law and trade customs has been disappointing in this regard, in that inductive approaches have not often been pursued and because assumptions and conclusions are commonly blended together. How to move beyond the current state of things? Citations of mercantile normative practices in court-related documents (pareres, attestations of customs, and pleadings) are the most fruitful for getting to know what merchants considered as binding themselves. This approach has proven successful with regard to sixteenth-century Antwerp. The mentioned documents phrase the views of merchants, and the procedural context in which they were created, guarantees objectivity as to their reflecting of merchant-made rules. Court-related documents will be analysed that were produced before tribunals of two cities of commerce: Amsterdam and Lyon, and this for the period of the first three decades of the eighteenth century. The novelty of the project lies in considering them in their own right, against the background of several variables, and in comparing the references to customs for different cities of commerce.

Marriage as Partnership: The Legal Position of Married Women in the Sixteenth-Century Southern Low Countries, (promoter: prof. dr. Dave De ruysscher, copromoter: Prof.dr. E. Schandevyl), FWO, 2014-2017

In the early modern Low Countries, the household was by law built on cooperation between spouses. It was construed as a partnership, which made that the wife – since she was an ‘associate’ – could sign contracts that were beneficial for the household. Assessing the extent to which this autonomous behaviour was allowed in legal terms, thus detailing the legal position of married women, will contribute to debates on the impact of law on gender status in history, and to discussions regarding the patriarchal nature of sixteenth-century family law, contract law and patrimonial law. It will allow for an adjustment of older legal-historical scholarship that sets forth the general incapacity of married women to sign contracts and to act in court without the authority of their husband. The proposed project will advance conclusions on the basis of an analysis of different types of rules and law that in the 1500s were in use in Antwerp and in Leuven, both of which had a different economic setting and legal regime as to family estates.

Bringing creditors to the negotiating table. Reconsidering the law on indebtedness and economic failure in early nineteenth-century Belgium (1808-1850) (promoter: prof. dr. Dave De ruysscher)), FWO, 2014-2017

Belgian law regarding indebtedness, proclaimed insolvency (faillite) and bankruptcy (banqueroute, which was a crime), of the first half of the nineteenth century, has traditionally been labeled as severe and out of touch with commercial reality. This image has been built up mainly from normative texts, and in particular on the basis of some sections of the Napoleonic Code de commerce, even though many other left open amicable approaches. For the period from 1808 until 1850 included, the relative importance and the contents of negotiated solutions, which were agreed upon in the meetings of creditors that were organized upon a debtor’s faillite, or which had the form of agreements that were drawn up outside the court, have never been studied. Judicial statistics demonstrate that concordats and extrajudicial arrangements were very important, and they suggest continuity with the eighteenth-century situation. In the proposed project, it will be detailed which strategies creditors pursued when being confronted with financial problems of their debtors, thereby using the possibilities of the open-ended legislative framework. The results of the research will add weight to recent arguments pointing to an optimal bankruptcy proceeding as involving the balancing of interests of debtor and creditors.

Bringing Company Law (Back) to the Future: Commercial Partnerships between Flexibility and Asset Shielding (17th-18th, and 21st Century) (promoter: prof. dr. Dave De ruysscher), FWO, 2010-2013

Under Belgian law, the legal figure of partnerships (maatschap) can be used for business. Yet commercial partnerships miss adequate asset protection and they are not adaptable enough to match commercial needs. These deficiencies date back to the nineteenth century, when certain legal features (equality of jointly liable partners, the absence of a business trust) were imposed on contractual companies. This operation went against an older and more flexible tradition. In the seventeenth and eighteenth centuries, the civil law and merchants’ practices were predominantly concerned with contractual commercial partnerships, and they covered diverse organisational schemes in combination with assets safeguarded for the venture. An analysis of legal texts and sources stemming from commercial practice of this period will yield juristic criteria and principles which will enrich present-day dogmatics on business trusts and on the organisation of commercial partnerships. The proposed project will allow to go beyond the typology of Belgian company law, will contribute to businesses tailored to entrepreneurs’ wishes and may eventually be used to support European-legal developments.

The Making of Commercial Law: Common Practices and National Legal Rules from the Early Modern to the Modern Period’ (promoters: H. Pihlajamäki, prof. dr. Dave De ruysscher), Finnish Academy of Science, in cooperation with the University of Helsinki, 2013-2017

New international commercial law has been hotly debated in the legal scholarship of the recent decades. Medieval lex mercatoria or law merchant supposedly developed on the commercial practice of medieval and early modern Europe, with little intervention from state authorities. According to the critics, the main problem with the notion of medieval and early modern lex mercatoria is that it is lacking empirical evidence, at least if a legally binding commercial practice in the form of lex mercatoria is thought to have covered more or less the whole European continent. More local studies are still needed, however, to find out to what extent common rules or practices existed, how binding they were, and whether commercial disputes were solved in courts of law or elsewhere in different parts of Europe. Because historical arguments have been used to bolster modern legal theories of modern lex mercatoria, it is pivotally important to screen the historical argumentation and to do it comparatively, setting national histories in an international context. The project links directly to the international discussion, providing a view from the north of Europe. The approach of the Project is throughout historical-comparative and empirical. In addition to research literature and statutory material, the development of the Swedish commercial law will be detailed through court records. The records of the Lower Courts of Stockholm and Gothenburg, and the archive of the Collegium of Commerce, will shed light on the actual workings of the law. The results will be compared to existing literature on other parts of Europe, such as France and the Netherlands.

Cracking the Code of Legal Personality: Closely Held Business Ventures and the Legal Appraisal of their Actions (Belgium, Nineteenth Century)(promoter: prof. dr. Dave De ruysscher), FWO, 2013-2016

In Belgium, legal personality became established in Belgian law in 1873, when a new company law was imposed. Ever since, the legal-dogmatic idea of legal personality contains in its core combined entity-like elements, such as a distinct fund, continuity by law after death or withdrawal of partners, contractual and procedural capacity. Even though some of these legal features may not be fit for closely held joint ventures (for example when facilitating fraud), others most certainly are. However, because Belgian law regards legal personality as bundling the mentioned characteristics together, it is based on a selective policy of acknowledging legal personality, and not only with regard to companies. Some undertakings are considered to be legal persons; others, such as partnerships (maatschap) and associations (feitelijke vereniging), are not. Yet, many of the latter joint ventures would profit from legal support for their entity-like aspects. Legal arguments in that respect will be retrieved when examining legal appraisals of commercial ventures between 1804/1807 and 1873. In that period, debates among jurists regarded the legal understanding of the actions of such firms. An operational method of analysis of source materials reflecting business practice, and a scrutiny of company contracts, pleadings and judgments, will ensure going beyond the traditional theoretical approach of legal personality, of which the 1873 legal person is a product.

ReConFort - Reconsidering Constitutional Formation (Passau University, participant: Brecht Deseure), ERC, 2014-2017

Five graduated historians and legal scholars from Belgium, Germany, Poland, Italy and Spain conduct research under the supervision of Prof. Dr. Ulrike Müßig (University of Passau) on European constitutional history in the 18th and 19th century. The project aims at investigating the cross-border interplays between constitutional process and public debates in late 18th and 19th century Europe. Constitution is not only the body of text, but rather the consensus of those to be ruled by the constituted sovereignty. CORE-member Brecht Deseure covers the part of the project that relates to the Belgian constitution. For more information, see the website of the project.

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