Fabrizio Cafaggi

Complementarità istituzionali ed evoluzione dei modelli organizzativi nella riforma del diritto societario

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In recent times the debate on the reform of corporate law has sprung. Legislative reforms have been passed reducing "the room" of mandatory law and favoring the expansion of contractual freedom. The Italian legal system is in the middle of a legislative process concerning SME's that should enhance their competitiveness and create the normative framework for their growth by defining better conditions to produce organizational innovation. The paper focuses on the institutional devices employed by the legislature to pursue these goals, challenging the view that the expansion of contractual freedom would necessarily bring about organizational innovation. It tackles the alternative between innovation and standardization comparing different kinds of rules using the comparative institutional analysis approach. In this framework legal rules produced by private and public institutions are considered institutional complements more than alternatives. The paper proceeds as follows. First it is pointed out that more attention should be devoted to external constraints on the exercise of contractual freedom due to the structure of capital markets and the market for legal services. If duly considered these factors may strongly affect the outcome of the institutional choice. Thence the role of judges and arbitrators is briefly considered to analyze the rate of expected litigation due to legislative reform within the alternative choice between innovation and standardization. Second, the criticism to a much simplistic scenario where contractual freedom is juxtaposed to mandatory law brings into the stage enabling law and general clauses. The paper focuses on the role of these two devices suggesting that they constitute different functional complements of contractual freedom, providing useful devices for contractual completion. A wider use of enabling rules and good faith in drafting the reform is therefore advocated. In the final part the paper suggests that the focus of reform should also encompass different forms of horizontal cooperation among firms. In particular networks of firms and industrial districts should be analyzed in the light of the reform to provide new solutions. Further research is needed to consider both the effect of the current reform on these cooperative ventures and the need for more legislative intervention.

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