If limited liability companies are exempt from codetermination, the problem of regulatory arbitrage arises. Thus, codetermination ought to be applied to a wide range of business types.

“If limited liability companies are exempt from codetermination, the problem of regulatory arbitrage arises. Entrepreneurs seeking to avoid codetermination may form limited liability companies instead of corporations. In Europe, the fact that limited liability companies cannot be publicly traded mitigates this problem at least to some extent. In those countries that exempt limited liability companies from codetermination rules, entrepreneurs face a tradeoff between avoiding codetermination and gaining access to the stock market. By contrast, in the United States, limited liability companies can be publicly traded, too, and sometimes are. As a practical matter, one typically encounters publicly-traded limited liability companies in the energy and natural resources sectors,246 where their use can be advantageous for tax reasons.247 However, if one were to apply codetermination rules to corporations but not to limited liability companies, the use of limited liability companies might skyrocket. This prospect alone suggests that, at the very least, any codetermination regime ought to be applied to publicly traded limited liability companies. The same argument applies to other types of business entities that offer the advantage of limited liability and can therefore be used instead of corporations, such as trusts or limited liability partnerships.”

theoretical