IL RUOLO DEI SOCI E DEGLI AMMINISTRATORI DI SOCIETA' DI CAPITALI IN CRISI

At a time of global economic and financial crisis in which the issue about distressed enterprises has become increasingly important, we analyse in particular the role of the main actors involved in distressed capital companies: the shareholders and the directors, with particular reference to the creditors as well. However, since the “crisis” is a multifaceted concept, we make several distinctions, attempting to point out that not every form of crisis is able to damage firstly the creditors. Depending on the form of crisis and its severity, we show how the directors’ duties change regarding the interests that have to be first and foremost protected, as well as their duties change (or must change) in order to prevent the deepening of the crisis, as well as change the role of both shareholders and creditors in managing the crisis. On the one hand, we point out the importance of the role of the directors (and of the auditors as well) to prevent the crisis in all its forms, in light of the duty to act on an informed (and “adequate”) basis; and subsequently to put in place a prompt intervention before the company faces serious troubles in order to implement an early corporate restructuring to preserve the economically sustainable parts of the business. In the last chapter, we analyse the proceeding of the arrangement with creditors, in relation to which the legal provisions of the bankruptcy law are completely different from those of the civil corporate law, in particular as regards the management objectives as well as the competences to take decisions affecting the corporate structure. In such a situation where creditors are at risk of suffering the default of the company, we consider in particular, including on the basis of a comparative analysis with different (especially european) legal systems, if it is reasonable to assume that the directors have the “shifting duty” to find a better solution in order to protect, besides the creditors, the shareholders as well in the event that the company is potentially economically sustainable; taking account that following the introduction of the competing proposals and the “arrangement-with-creditors expropriation” ex art. 163, par. 4, l.f. (as well as the intended introduction of the possibility for third parties to submit the proposal for the admission to the proceeding of the arrangement with creditors), the shareholders, who are most likely to be affected by the legal effects – even serious – of a competition procedure, are completely sidelined from any form of participation both from the decision about the an and quomodo of the procedure and, subsequently, from conducting the procedure by evaluating the arrangement-with-creditors proposal, because of the shareholders’ exclusion from the vote, on a par with the creditors, for the approval of the proposal; for which reason we consider the possibility to assume the necessity for some forms of legal protection for the shareholders throughout the procedure of the arrangement with creditors.