• Administrative liability of the company: new offences in Legislative Decree 231/2001

    Law Decree 124/2019, approved on 24th December 2019, introduces new types of tax offences in the Legislative Decree 231/01 in order to provide greater protection of the public finance through the repression of illegal tax practices and to protect companies from non-compliant conduct committed by top management/subordinate individuals. The existent compliance programs did already include […]

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  • Composition with creditors’ discipline: recent clarification

    With ruling no. 734 of January 15, 2020, the Italian Court of Cassation intervened on the rules applicable to composition with creditors that combines the partial continuation of the company’s business together with the atomistic liquidation of part of its assets. This is the so-called “concordato misto”, which identify an arrangement with creditors the proposal […]

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  • Irrevocable Inter Vivos Trust: Italian Supreme Court Interpretation

    The Decision here concerned states that: «in the event of a trust set up during the lifetime of the settlor, even if the legal position of the beneficiary was transferred (or in any other way altered) as an effect of the decease of the settlor, the properties held in trust will not be part of […]

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  • The russian roulette clause under review in jurisprudence

    In a recent judgment of 13th June 2017, published on 19th October 2017, the Court of Rome expressed its opinion for the first time – since no decision had been registered on the point until then and even afterwards – on the merits of the russian roulette clause. It is a clause whose settlement is […]

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  • New rules from Europe on cross-border transformations, mergers and demergers

    In order to improve the functioning of the European internal market for companies and the related exercise of the freedom of establishment, it has been necessary to act on the rules governing cross-border operations. The European legislator, related to this topic, adopted the following Directives : 2005/56, 2009/101, 2011/35, 2012/30 and 2017/1132. Despite these, nowadays […]

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  • Inheritance of the lease, from the lessor who was the owner of a usufruct (life estate)

    Recently, the Italian Supreme Court analysed the case where the absolute proprietor “A” of a real estate (according to the Italian Civil Code) grants a special kind of life tenancy right (usufruct) to a grantee “B” who consequently becomes owner of the real estate. After that, B enters into a lease agreement with a lessee […]

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  • Do BoD members have the right to claim remuneration even in the absence of a shareholder resolution or a by-laws provision?

    The main principle of the above mentioned issue lies in art. 2389 of the Italian Civil Code, from which could be deducted that the activities carried out by the directors are not free of charge. The above mentioned rule was recently confirmed by the Supreme Court (no. 24139/2018) which stated: “with the acceptance of the […]

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  • San Marino launches its Blockchain Register

    Starting from 21st October Sanmarinese and non-Sanmarinese economic operators can submit the application to be recognised as Blockchain Entities and be registered in the relative register (see Regulation 004/2019 issued by the Institute for Innovation of San Marino, hereinafter “the Institute”). The registration as Blockchain Entities is subject to positive due diligence carried out by […]

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  • Recent amendments about continuous collaborations

    On November 2nd, 2019, has been published the Act n. 128/2019, which converted, with amendments, the Law Decree n. 101/2019, laying down urgent provisions for the protection of work and for the resolution of company crises. As for the coordinated and continuous collaborations organized by the client (a kind of self -employment contract), the law […]

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  • Investment Funds do not have Legal Personality

    «Investment Funds (particularly close-ended funds that invest in real estate), under the Italian Financial Instruments Act (also known as T.U.F. or Legislative Decree n. 58/1998, in its consolidated version), are not juridical subjects, as they [merely] represent assets separated from the managing company. This Court has already stated such principle, considering that in the case […]

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  • INCOTERMS 2020

    “The common language in international sales transactions”: this is how Incoterms have been defined on several occasions. Incoterms are the set of rules developed by the International Chamber of Commerce with the aim of facilitating international trade in goods since they define unambiguously and without the possibility of error all the competent rights and duties […]

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  • The Supreme Court on suspension of efficacy of shareholders’ resolutions excluding a shareholder

    The Supreme Court, with ordinance no. 24939/2019, addressed the issue of the nature of the precautionary decision of suspension of a shareholders’ resolution on the exclusion of a shareholder from a limited partnership; and in particular, whether it has “anticipatory effects” of the future decision – which has a “constitutive” nature. According to a first […]

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  • The Supreme Court: when can shareholders or third parties directly claim compensation against BoD members

    When does a breach of the BoD’s obligations or an illegitimate conduct of its members directly harm a shareholder or a third party? This matter has been discussed several times by the Supreme Court during the past last years. With a recent ruling – no. 14778/2019 – the Supreme Court once again reaffirms the elements […]

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  • Simulation of the contract and “potestas iudicandi” of the arbitrators

    A recent ruling of the Court of Cassation (No 14884 of 31 May 2019) states, that the ascertainment of the simulation of the contract on which the claim relied on before the arbitrators is based, falls within the potestas iudicandi of the latter, since their knowledge extends, subject to any specific legal limits, to any […]

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  • Blockchain and Privacy: the policy options proposed by the European Parliament

    In recent years the European debate has largely focused on the problems that blockchain technologies raise in terms of data protection. One of the most controversial issues concerns the identification of the Data Controller (Data Controller), that is the (natural or legal) person which, alone or jointly with others, determines the purposes and means of […]

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  • Company’s directors, professionals or part of a corporate body?

    The management of a company, regardless of how it is structured – BoD, SD, joint or separate administration – is the centre of the entire corporate governance. It is probably the importance of such role that has attracted the attention of the jurisprudence and doctrine that in recent years has been characterized by a huge […]

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  • Mandatory attempt at conciliation in injunction procedure in the field of telecommunications

    With the recent ordinance no. 16594/2019, the Supreme Court referred to the Joint Session the following questions: (i) whether the attempt at conciliation is mandatory in injunction procedure in the field of telecommunications, or not; (ii) in case of positive answer, in case such obligation is not fulfilled, whether the injunction procedure can proceed or […]

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  • Notarized power of attorney abroad: when can it be considered valid?

    The power of attorney to sell issued abroad is valid in Italy if it meets the authentication requirements required by national law: therefore, the foreign notary, in accordance with the provisions of art. 2703 c.c., must certify with certainty the identity of the subscriber and also that the signature of the latter is affixed in […]

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  • Exiting perpetual LLC

    With regard to the withdrawal of a shareholder from a LLC, the Italian Civil Code does not identify the moment of effectiveness of the exit and its consequent effects, without prejudice to the problem of the status socii following the declaration of withdrawal and the rights of exiting shareholder before the reimbursement of its quota. […]

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  • Sending commercial communications to fidelity card holders

      The Guarantor for the protection of personal data, with the newsletter no. 456 of 22 July 2019, stresses the illegality of sending commercial communications (so-called spam) addressed to holders of fidelity cards that have not expressed a specific and free consent to the use of their data for marketing purposes. The provision of the […]

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