Legal Regime of State-Owned Corporations: The Contribution of OECD Guidelines

The paper aimed at addressesing the nature, and, as a result, legal regime of State-owned corporations (SOCs), in the light, simultaneously, of Italian law, European law and OECD guidelines on corporate governance of public enterprises. This with the main objectives of understanding whether and to what extent the three systems are consistent and whether and how it is actually possible and, in any case, of use, a global regulation (although in the form of soft-law) of such profiles and, in this connection, which role the differences among the various legal systems can play. At a first sight, in fact, legal issues posed by SOCs may certainly present a real global significance: in the sense of involving legal profiles that appear to be, in many cases, essentially similar, regardless the specific jurisdiction at stake and, secondly, because certain forms of SOCs, like, for example, sovereign wealth funds act at a global level. However, by analyzing the particularities of Italian law (as influenced by European law) we will show how in Italy the (lucrative) legal purpose legally given to corporations by the civil code is of crucial importance and how this teleological view of SOCs may deeply determine not only the corporate governance but, more in general, the comprehensive nature-legal regime of SOCs. In this perspective, OECD guidelines (inevitably generic as to the purpose of SOCs, due the differences among the various jurisdictions) appear of limited interest, although opportunely oriented to defend (consistently with Italian and European law) the general subjection of SOCs to private law. Finally, despite this aspect is almost not addressed by the OECD guidelines, we will investigate the relationships between nature- (internal) legal regime of SOCS and external legal regime (of the activities) of SOCs. Also in this connection, we will try to show how relevant the connection between external and internal legal regime is. In particular, it will emerge the specific (and essential) role of the legal purpose, also in the perspective of avoiding that SOCs are used to circumvent public law’s guarantees, and so of preserving the internal coherence of the legal system.