Fabrizio Cafaggi

Riforma del diritto societario: il ruolo delle "clausole generali"

  • Abstract

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The law reform process concerning Italian corporate law is slowly taking place. The financial market reform has been completed in 1998. With TUIF and the following regulations enacted by Consob a new dimension of the corporate governance structure has taken shape. Much is left to be done. The reform of closely held company, that of bankruptcy, for example. Important efforts have recently be made to change this body of law. The principles around which these reform projects have been built are the expansion of freedom of contract and the promotion of new opportunities to access capital markets. The main goals is to enhance the flexibility of organizational models and preserving creditors' rights. The paper argues that in this process one of the fundamental question has been left aside: the role of entrepreneurship. Prisoners of old dilemmas between managerial and not managerial capitalism the law reformers have not fully considered the role of knowledge and social capital in the building process of corporate governance for small and medium enterprises. A connected flaw concerns the relationship between freedom of contract and the role of good faith in the definition of the initial corporate contract and the way to complete it. It is shown that good faith principle is perfectly compatible with if not necessary to the empowerment of freedom of contract. Thence the allocation of power within entrepreneurial organizations is the result of the combination between these two elements. The paper leaves with an open question: to what extent the reform process places workable burden on the dispute resolution system, in particular on the Courts.

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