The Legal Transplant into Italian Law of the Procédure d’Alerte. Duties and Responsibilities of the Companies’ Bodies 

by Francesco Pernazza

The Italian Law on Bankruptcy of 1942 has been amended and integrated several times on specific subjects, but until now, the total reform proposal has failed. Finally, in October 2017, a statute has been approved that establishes new principles on the entrepreneurial crisis and insolvency and delegates powers to the Government to enable it to elaborate an organic reform of rules and procedures. Among the most important amendments, the law regulates an alert procedure, based on the French model, in order to allow for prompt measures in case of distress. The essay offers a comparative analysis of the French procédure d’alerte and of the new Italian principles of regulation, from the perspective of the theory of legal transplants. Numerous institutional, systemic and technical factors may jeopardise the desired goals of reproducing in Italy the successful foreign experiences in this field. Nevertheless, the new law is of a paramount importance for its effects on the corporate governance and, in particular, on the new duties and liabilities of management and control bodies in financial distress. On this aspect, there is a need of a more detailed regulation to be implemented by the Government and possible solutions are envisaged in the paper. The success of the alert procedure largely depends on the new legal incentives for a prompt and efficient reaction of the companies’ bodies and on a wise implementation of the new principles of regulation on insolvency.

DOI 10.23815/2421-2156.ITALJ           ISSN 2421-2156

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