This article examines the implications of the E.C.J.'s decisions in Überseering and Inspire
Art against the background of the principal competing theories relating to lex
societatis. It considers the tension between freedom of establishment (EC Treaty, arts 43 and 48) and the protective objectives of national corporate law regimes aimed at defeating the so-called Delaware effect. It goes on to argue that significant issues remain unresolved. More particularly, it questions whether creditor protection mechanisms contained in national insolvency laws will, in future, be viewed as obstacles to freedom of establishment.