Applied research doctoral scholarships: 28 scholarships for innovative PhDs
Legal Studies
The projects
• Business crisis - choices regarding crisis resolution toolsposition of shareholders
• Environmental, Social, Governance - social interest - duties of directors
Business crisis - choices regarding crisis resolution
tools - position of shareholders
Company: GuberBanca S.p.a.
Tutor: Enrico Ginevra, Francesco Bordiga
The Italian Insolvency and Crisis Code (hereinafter also referred to as “IICC”), in redesigning the topic of duties of corporate bodies in managing a crisis, has established a regulatory link between crisis law and corporate law.
The cornerstone of the regulation is represented by the introduction of the “trans-typical” duty to establish organizational structures under Article 2086, second paragraph, of the Italiam Civil Code, which distinguishes two distinct “phases” in which this duty is articulated: a preliminary phase of detecting signs of distress, and a subsequent phase where the choice of appropriate reaction methods of overcoming the identified tensions has to be made.
The IICC, by enriching the duties provided for by Article 2086 of the Italian Civil Code with additional systematically relevant coordinates, provides detailed indications regarding the content of organizational structures aimed at detecting the crisis, expands the range of resolution tools, explicitly outlines the interests to pursue during the insolvency phases, defines - also through a distinction between the notions of “crisis” and “insolvency” - these phases with greater rigour than in the past, and articulates a (innovative if not “revolutionary”) regulation under Article 120bis of the IICC regarding the position of shareholders in managing a struggling company.
With reference to those latter aspects, the project aims to investigate the content and limits of power-duty of managers in choices related to the crisis, specifically focusing on the position of shareholders (and their representative body) - as regulated by the new rules now provided under Article 120bis - and on the relevant interests and limits to the managers’ discretion in the aforementioned decision-making area, taking into account the contemporary trends in valuing the interests of stakeholders and the particular role these interests play in a crisis situation.
The project sets the objective of analyzing the research topic using a comparative approach, including a study period abroad and taking into
account concrete business realities through an internship period within the affiliated company (Guber Banca S.p.a.), which is active in managing, from a creditor’s perspective, strategically significant positions concerning companies in crisis and, in general, so-called special situations.
Environmental, Social, Governance - social interest - duties of directors
Company: Rummo S.p.A.
Tutor: Enrico Ginevra, Francesco Bordiga
The notion of social interest has been undergoing a metamorphosis (connected to the redefinition of the very function of the joint-stock company) in which social interest is no longer limited to the maximization of shareholder value but seems to be interpreted in ways and with contents that still need to be fully investigated.
In such metamorphosis process, the social interest should allow the company to preserve its income-generating capacity in the long term, taking into account the interests of all stakeholders involved in the business activity (in compliance with the social function that the Italian Constitution provides for in relation to economic initiative).
This transnational trend is evidenced, on the one hand, by the increasing treatment of the subject by the legislation of major European countries (excluding Italy so far), which has increasingly introduced rules expressly linking corporate governance to the consideration of stakeholders’ positions.
On the other hand, there are initiatives at the EU legislation level contained in the so-called Sustainability Package: such as, regulations on sustainable transparency in the financial sector (2019/2088) and the taxonomy of sustainable activities (2020/852), the proposal for a directive by the European Parliament on due diligence on March 10, 2021, followed by the new Corporate Sustainability Reporting Directive of December 16, 2022.
All of those aforesaid initiatives occur in a context where the doctrines of the so-called enlightened shareholder value, stakeholder value, and corporate social responsibility have been gaining more ground - not only in the academic environment (both domestic and international) - in the operations of large joint-stock companies, placing the factors known as Environmental-Social-Governance (ESG) at the center of the capitalist dynamics.
The project aims to reconstruct the phenomenon in its various manifestations and the extensive debate that has emerged in the
last decade, with reference to the shaping of social interest in the aforementioned ESG capitalism context and the potential technical implications concerning the duties and responsibilities of management bodies.
The project includes a period of study abroad and an internship within the affiliated company (Rummo S.p.a.), which is interested in exploring, from a legal perspective, the potential for activating social engagement projects within its business activities.
