The Form of the Multinational Enterprises: The Evolution in the Context of the Functional Analysis of Law

In this article, we identify two recent stages in the evolution of the legal form of multinational enterprises (MNEs): the rise of offshore empires by the late 20th century and the emergence of neo-MNEs in the past decade. We examine the gradual shift in the parameters linked to the economic substance unity of MNEs (Part 1) and those associated with their legal multiplicity (Part 2), within the context of the law’s functional analysis. Our findings have revealed that each MNE’s form developmental stage corresponds to changes in all the selected parameters. Furthermore, we note significant changes in the relationship between the MNE’s legal form and its economic substance. This has led us to conclude that the firm’s size is not a necessary characteristic of the MNEs’ form, but serves as a crucial additional criterion for defining the scope of regulatory measures. Simultaneously, optimization of regulatory burdens including the growing importance of sanction compliance is a key factor of forming the MNEs. The differences between new and old MNEs’ forms are primarily the result of technological transformations, reflecting not only a mismatch but also a fluidity in the economic and legal boundaries of MNEs (Part 3). In conclusion, a comprehensive, cross-sectoral approach is required for the legal form of MNEs. Understanding the specifics of neo-MNEs broadens the search scope for new conceptual solutions. States initiate experimental legal regimes, while entrepreneurs develop quasi-public and quasi-corporate structures based on new technologies and quasi-law (standards, customs, soft law). This approach eventually prompts a reevaluation of the normativity concept