Luca Enriques

Il nuovo diritto societario nelle mani dei giudici: una ricognizione empirica

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The reform of Italian corporate law currently under discussion would strongly increase the role of judges in the corporate governance of Italian companies. The paper tries to provide an answer to the question of whether Italian judges are prepared to assolve this more central role. In order to do so, a number of opinions by judges of the Milan Court, which is the most specialized court in Italy in corporate law matters, have been gathered and analyzed. The analysis of these opinions shows that: 1) judges usually do not give account of the substantial disagreement which has led parties to resort to the Courts and do not often take this substantial disagreement into account when deciding; 2) cases are not rarely decided by applying a formalistic sort of reasoning; 3) judges show a high degree of deference to the decisionmaking by controlling shareholders even when self-interested transactions are implied; 4) judges never expressly consider the indirect effect their decisions can have on the behavior of the generality of corporate actors.

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